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Intervention - Federal (3). Public Service Alliance of Canada v. Canada
In Public Service Alliance of Canada v. Canada (Fed CA, 2025) the Federal Court of Appeal denied a motion to intervene:[6] The test for intervention under Rule 109 focusses on three elements: (i) the usefulness of the intervener’s participation to what the Court is called upon to decide; (ii) a genuine interest on the part of the intervener; and (iii) a consideration of the interests of justice (Le-Vel Brands, LLC v. Canada (Attorney General), 2023 FCA 66 at para. 7 (Le-Vel Brands); see also Chelsea (Municipality) v. Canada (Attorney General), 2023 FCA 179 (Chelsea); Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 13 (Council for Refugees); Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67 (Right to Life); Gordillo v. Canada (Attorney General), 2022 FCA 23; Métis National Council and Manitoba Metis Federation Inc. v. Varley, 2022 FCA 110; Whapmagoostui First Nation v. McLean, 2019 FCA 187; Sport Maska Inc. v. Bauer Hockey Corp., 2016 FCA 44; Macciacchera (Smoothstreams.tv) v. Bell Media Inc., 2023 FCA 180; Smith v. Canada (Attorney General), 2022 FCA 146; Alliance for Equality of Blind Canadians v. Canada (Attorney General), 2022 FCA 131).
[7] It is worth reminding at this stage that the test for intervention is more restrictive in this Court than in other courts, including the Supreme Court of Canada, resulting in intervener status being granted in this Court "“relatively rarely”" (Chelsea at para. 4; see also Talukder v. Canada (Public Safety and Emergency Preparedness), 2025 FCA 132 at paras. 5‑7). It is worth reminding as well that even where a proposed intervener has a keen interest in the development of the law, as many other organizations might have, because it might be affected by the Court’s decision in a proceeding, that type of interest, without more, is insufficient to satisfy the test for intervention (Right to Life at para. 24).
[8] Of the three elements of the test for intervention, failure to demonstrate usefulness – an element explicitly required to be satisfied under Rule 109 – is the most frequent reason why intervention motions fail (Le-Vel Brands at para. 13). In fact, when that occurs, the Court, irrespective of the two other elements, "“is legally bound to dismiss the motion for leave to intervene”" (Le-Vel Brands at paras. 13–16)
[9] Usefulness is established when the Court is satisfied that the proposed intervention will further the Court’s determination of the legal issues raised by the parties to the proceeding by providing different and useful submissions, insights and perspectives. This determination will usually be made by looking at: (i) the issues raised by the parties: (ii) what the proposed intervener intends to submit on these issues; (iii) whether these intended submissions are doomed to fail; and (iv) whether the proposed intervener’s arguable submissions will assist the determination of the actual, real issues in the proceeding. A proposed intervention will therefore not be permitted if the intent is to address issues not raised by the parties. In other words, interveners must take the parties’ issues – and the court record – as they find them (Le-Vel Brands at para. 19; Council for Refugees at para. 6; Right to Life at para. 14).
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[14] As is well settled, if a proposed intervener wants to advance its own issues, it must bring its own case as a party with all that entails, including legal expense and potential costs liability (Right to Life at para. 14).
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