The Federal Court of Appeal’s recent decision in Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194 has attracted national attention. On September 15, 2015, the Court of Appeal upheld the decision of the Federal Court that had the effect of permitting the respondent, Zunera Ishaq, a devout Muslim, to wear a niqab veil while taking the oath of citizenship. But before the Court released this decision on the merits, Justice Stratas of the Federal Court of Appeal authored a strongly-worded decision (2015 FCA 151) in response to the motions of six parties who sought to intervene in the appeal. Justice Stratas’s decision lays out a roadmap for a successful intervention motion, and warns against certain practices on these motions that have become increasingly common.
The six prospective interveners sought to make submissions on certain Charter issues that could have been relevant in the appeal. In assessing the motions, Justice Stratas referred to the test established in Canada (Attorney General) v. Pictou Landing First Nation, 2014 FCA 21, which sets out five questions for the Court to consider. Included among these questions is whether the proposed intervener will “advance different and valuable insights and perspective that will actually further the Court’s determination of the matter.”
Justice Stratas found that all six motions failed on this ground, which he characterized as “perhaps the most important factor” for the Court to consider on an intervention motion. He held that the six moving parties provided submissions that were “too general and diffuse to be persuasive,” giving rise to the concern that “nothing much different from the submissions of the parties already before the Court will be said.” Justice Stratas also cautioned against the practice of “bootlegging” fresh evidence on the motion for leave to intervene by slipping social science papers or other evidence into supporting affidavits or books of authorities.
To be successful on a motion for leave to intervene, Justice Stratas said that prospective interveners must go about “locating the particular itch in the case that needs to be scratched, and telling us specifically how they will go about scratching it.” He set out a four-point list of the steps an applicant for intervention should take when preparing its motion materials:
- identify one or more specific controlling idea(s) on which the case will turn;
- offer, with specificity, the submission(s) it will make on the controlling idea(s), showing why it will advance the Court’s appreciation of the controlling idea(s);
- ensure that its submission(s) will not need to go beyond the evidentiary record; merely saying so is not good enough; and
- distinguish its submission(s) from those of others already before the Court, e.g., on the ground that the submission(s) have not been made, or that its perspectives, experience or expertise—specifically identified—will cast a different light on the matter.
The decision is required reading for any party who wishes to obtain intervener status in an appellate proceeding.