Intervener Status

Yellowknife Public Denominational District Education Authority v. Euchner, 2008 NWTCA 1 deals with an application for intervenor status.

The underlying action dealt with the rights of minority Catholic ratepayers to establish separate schools and whether such schools are constitutionally entrenched in the Northwest Territories.

In deciding the issue the Court gave a good synopsis of the test for intervener status:

Test for leave to intervene

[4] This Court has inherent jurisdiction to grant leave to intervene. As explained by the Supreme Court of Canada in R. v. Morgentaler, 1993 CanLII 158 (S.C.C.), [1993] 1 S.C.R. 462 at para. 1, "[t]he purpose of an intervention is to present the court with submissions which are useful and different from the perspective of a non‑party who has a special interest or particular expertise in the subject matter of the appeal."

[5] The applicants summarize the test for granting leave to intervene generally as requiring consideration of the following questions:

1. Will the intervener be directly affected by the appeal;

2. Is the presence of the intervener necessary for the court to properly decide the matter;

3. Might the intervener's interest in the proceedings not be fully protected by the parties;

4. Will the intervener's submission be useful and different or bring particular expertise to the subject matter of the appeal;

5. Will the intervention unduly delay the proceedings;

6. Will there possibly be prejudice to the parties if intervention is granted;

7. Will intervention widen the lis between the parties; and

8. Will the intervention transform the court into a political arena?

[6] The applicants further submitted that the courts are generally more lenient in granting intervener status in cases involving constitutional issues. They cited the decision of the Alberta Court of Appeal in Papaschase Indian Band No. 136 v. Canada, 2005 ABCA 320 (CanLII), 2005 ABCA 320, 380 A.R. 301. In that case the court employed a two-step approach, firstly considering the subject matter of the proceedings and, secondly, determining the proposed interveners' interest in that subject matter. The court stated at para. 9:

In constitutional cases, if an applicant can show its interests will be affected by the outcome of the litigation, intervener status should be granted: Skapinker v. Law Society of Upper Canada (1984), 9 D.L.R. (4th) 161 (S.C.C.). Or, as already noted, if the intervener applicant possesses some expertise which might be of assistance to the court in resolving the issues before it, that too will do. As explained by Brian Crane in Practice and Advocacy in the Supreme Court, (British Columbia Continuing Legal Education Seminar, 1983), at p. 1.1.05, and approved by the Supreme Court of Canada in Reference re Workers' Compensation Act, 1983 (Newfoundland), 1989 CanLII 23 (S.C.C.), [1989] 2 S.C.R. 335 (S.C.C.), at 340:

an intervention is welcomed if the intervener will provide the Court with fresh information or a fresh perspective on an important constitutional or public issue.