(1) Appropriate Cases for Intervention
(a) General
Intervention by The Canadian Bar Association will be authorized only at the appellate level and generally only in the highest court in which an issue is likely to be finally decided. The standard practice will be to intervene only in the Supreme Court of Canada.
The Canadian Bar Association will intervene only where the intervention would constitute a significant contribution to the consideration of the issue or issues involved and only when the position sought to be advanced is:
(i) consistent with previously adopted policy of the Canadian Bar Association;
(ii) a matter of compelling public interest which the Board of Directors then adopts as policy of the Association; or
(iii) a matter of special significance to the legal profession.
Canadian Bar Association factums should not merely restates arguments advanced by the parties.
Applications for leave to intervene and factums should explain the nature of the Association's special interest in the case and how its interest differs from that of the parties.
(b) Regional Issues
Where the National Board of Directors determines that intervention by the National Office is not warranted because the matter is only of local or regional concern and that the position sought to be advanced in the intervention
(i) is not inconsistent with previously adopted policy of The Canadian Bar Association or the broader interests and concerns of the Association, and
(ii) at the local or regional level, is a matter of compelling public interest or a matter of special significance to the legal profession an intervention by a Branch of the Canadian Bar Association shall be permitted, without further regard to this Policy.
Where
(i) a matter is before the Courts in more than one jurisdiction,
(ii) more than one Branch wishes to intervene at the highest appellate level of their jurisdiction, and
(iii) the matter satisfies these Guidelines, the National Board of Directors may coordinate interventions in the various jurisdictions and shall assume carriage of the intervention in the Supreme Court of Canada.
(c) Leave to Appeal and Merits
The Canadian Bar Association may intervene after the Court agrees to hear the case on the merits, on the application for leave, or both.
The usual practice will be to intervene in the substantive appeal. However, filing at the leave to appeal stage may be desirable if expressing the Canadian Bar Association's position would likely assist the Court in determining whether the case is of sufficient importance to warrant review.
The filing of a factum at the leave to appeal stage does not commit the Canadian Bar Association to intervening on the merits.
In appeals where the Association has not decided to intervene, it will not comment in writing to the court or endorse any document to the court on the subject matter or merits of the appeal.
(d) Intervention on Issues Supported by Existing Canadian Bar Association Policy
Where Canadian Bar Association policy is clear and a matter of record, the policy should be cited and explained in the factum.
The application for leave to intervene and the factum must be reviewed by the Legislation and Law Reform Committee and approved by the National Board of Directors.
(e) Intervention on Issues Not Supported by Existing Canadian Bar Association Policy
If the factum supports a position which has not been previously adopted as a policy of the Canadian Bar Association, the National Board of Directors must adopt the position as Association policy before authorizing the intervention.
In such cases, the burden is on the proponent of the submission to persuade the National Board of Directors of the urgency and importance of adopting the policy position to be advanced.
(f) Joint Briefs
Generally, the Canadian Bar Association will not join in interventions with other organizations.
(2) Authorization and Responsibilities
(a) General
Interventions in the name of the Canadian Bar Association must be authorized by the National Board of Directors or, if the Committee cannot act in time, by the Executive Officers. Authorization is subject to the budgetary approval process.
The National Board of Directors can initiate an intervention or act on a request for authorization to intervene submitted by a section, branch, committee, Conference or other Canadian Bar Association body.
Applications for leave to intervene and factums are to be drafted by the Canadian Bar Association body seeking authorization. Other interested Association bodies should be consulted and their position ascertained prior to submission of a request for approval to intervene. The request for approval should indicate the consultations undertaken and the results thereof.
Applications for leave and factums will only be filed in the name of the Canadian Bar Association and not in the name of a Canadian Bar Association constituent body, unless the matter is of regional or local interest only and the National Board of Directors has authorized intervention by a Branch of the Association, in which case, the documents may be in the name of the intervening Branch.
In all interventions, other than an authorized intervention by a Branch, The Canadian Bar Association President, or the President's designate, will be named as counsel of record, at the National office address.
(b) National Board of Directors
The National Board of Directors must approve both the application for leave to intervene and the final factum. If time does not permit consideration by the National Board of Directors, the Executive Officers may approve the leave application and factum.
The Board of Directors will seek and consider the recommendation of the Legislation and Law Reform Committee as to whether an intervention should be authorized.
(c) Legislation and Law Reform Committee
The Legislation and Law Reform Committee will provide the Board of Directors with its recommendation as to whether an intervention should be authorized. The Board of Directors will consider, but is not bound by, the recommendation.
Where the National Board of Directors authorizes a national intervention, the Legislation and Law Reform Committee will review the factum on behalf of the National Board of Directors, suggest modifications if necessary, and advise whether (with any modifications suggested by the Committee) it satisfies The Canadian Bar Association's standards. Before the factum may be filed, the Committee must certify that it is of high quality and a fair representation of the policy of the Association.
The Legislation and Law Reform Committee may also monitor judicial developments and identify cases of special interest to the Canadian Bar Association.
(d) Legal and Governmental Affairs Department
The Legal and Governmental Affairs Department is responsible for the review and filing processes. The Senior Director of Legal and Governmental Affairs may be consulted at any time regarding intervention in public interest cases.
A constituent body of the Association wishing to seek intervention in a matter should contact the Department as soon as it considers the possibility of seeking authorization.
The Department will process the request for authorization, keep track of notice requirements and ensure submission of the application and factum to the Board of Directors.
The Department will assist the Legislation and Law Reform Committee in carrying out its functions with respect to intervention in public interest cases.
The Department will send copies of the request for authorization, application, factum and related material to every section, committee or other Association body which appears to have an interest in the subject matter of the proposed intervention.
(e) Costs
The Canadian Bar Association will pay no legal fees relating to interventions. The Association will pay only necessary disbursements from a specific budget established for that purpose. If the intervention is of a regional or local interest only, necessary disbursements will be borne by the intervening Branch.
(3) Requests for Authorization
(a) General
Requests for authorization to intervene in public interest cases should be addressed to the President of the Canadian Bar Association and copied to the Senior Director of Legal and Governmental Affairs.
Requests for authorization will be sent to the Legislation and Law Reform Committee, which shall make a recommendation to the Board of Directors. They will also be sent to the Treasurer regarding any financial implications of the proposed intervention.
Completed requests and any related material will be placed upon the agenda of the next National Board of Directors meeting. Where time constraints require consideration before the National Board of Directors's next meeting, the President may call a meeting of the Executive Officers to consider the request.
(b) Contents of Request
The request for authorization shall contain the following:
(i) The style or caption of the case, identification of the last court to render a decision in the case and the court in which it is proposed to intervene. A copy of the decision or order appealed from, any accompanying reasons and other relevant documentation should be attached to the request.
(ii) The date by which the proposed application for leave to intervene and factum must be filed.
(iii) A full statement of the relevant facts giving rise to the question in issue.
(iv) A statement of whether the policy or principles of law to be supported has been adopted by the Association and, if so, reference to and full quotation of the relevant resolution or other authoritative action by the Association.
(v) An explanation of why it is important that the Association address the question in issue.
(vi) A complete account of the applying body's consideration of the matter, including a description of any dissenting views.
(vii) Disclosure of any personal or professional interest in the matter on the part of any individual or organization participating in the decision to seek National Board of Directors authorization to intervene.
(viii) The names and firm connection, if any, of those who have written or will write the factum on behalf of the Canadian Bar Association or an intervening Branch.
(ix) A list of sections, conferences, branches and committees which might have any interest in the question in issue. These bodies should be consulted and their positions ascertained prior to submission of the request. The request shall state what consultation has taken place and the position, if any, of the other bodies.
(x) An outline of the argument to be set out in the factum or, preferably, a draft of the factum to be filed. (Statements of the general configuration of an intended argument are not as helpful as a complete draft of the factum which must, in any event, eventually be reviewed by the Legislation and Law Reform Committee and approved by the National Board of Directors or Executive Officers.)
(xi) If the request seeks authorization to intervene in support of a position or principle of law which has not been adopted as Canadian Bar Association policy, it must be accompanied by a concise statement of why it should be adopted by the Board of Directors.
(xii) If the request relates to a local or regional matter, a statement that the position to be taken is not inconsistent with Canadian Bar Association policy or the broader interests and concerns of the Association and an explanation of why the matter is of compelling public interest or a matter of special significance to the legal profession.
(c) Time of Submitting Request
Every effort should be made to ensure sufficient time for thorough consideration of requests and factums.
Requests should be submitted to the President and the Senior Director of Legal and Governmental Affairs at least three weeks before the application for leave to intervene must be filed in the Court.
Proposed factums must be delivered to the Senior Director of Legal and Governmental Affairs no later than three weeks before the factum must be filed. (Three weeks is the minimum time required for review by the Legislation and Law Reform Committee and approval by the Board of Directors or Executive Officers and printing.)
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