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Top court hands out written guidance for would-be interveners at Supreme Court of Canada appeals

Tuesday, November 16, 2021 @ 9:11 AM | By Cristin Schmitz

The Supreme Court of Canada has issued some written guidance about what it looks for from would-be interveners in its appeals.

On Nov. 15, the top court issued a news release, and notice to the profession, in advance of a webinar talk on the same topic by Supreme Court Justice Suzanne Côté, sponsored by the Canadian Bar Association, which will be held in English Nov. 17 from 12:00 pm to 1:30 pm Eastern Time.

The webinar, featuring a discussion between Justice Côté and former Supreme Court law clerk Joshua Sealy-Harrington of Juriste Power Law, will also be held in French later this month.

The Supreme Court’s latest notice to the profession comes in response to practitioners asking the court to outline what factors it considers when deciding whether to grant an application to intervene, as well as requesting guidance on how to frame such interventions and, if oral argument is permitted, how to effectively use those precious five minutes to persuade the bench.

The Supreme Court said that this month’s Notice to the Profession, setting out the court’s expectations of interveners and guidance on the scope of submissions, should be read in conjunction with a 2017 notice to the profession.

The Supreme Court advises that:

  • The judges expect all intervener submissions to be useful to the court and different from those of the parties.
  • The purpose of an intervention is not to support a party but to advance the intervener’s own view of a legal issue before the court. “Despite the participation of interveners, the case remains a dispute between its parties,” the court reminds counsel. “However, the fact that an intervener’s submission aligns it generally with one party over another does not, without more, make the submission inappropriate.”
  • Interveners should not take a position, in writing or during oral argument,  on the outcome of an appeal.
  • Interveners must not challenge findings of fact, introduce new issues, or try to expand the case.
  • In considering applications to intervene, the court will be mindful of the need not to unduly imbalance the arguments before it; and
  • The court always retains discretion “to take any steps it sees fit to prevent an unfairness to the parties arising from an intervener’s participation in an appeal.”

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