I Appropriate Cases for Intervention

1. General

The Canadian Bar Association uses court interventions judiciously as one strategy to advance its advocacy objectives.

​The CBA will intervene only when:

  1. the intervention would constitute a significant contribution to the consideration of the issues before the court;
  2. the intervention would not merely restate the arguments advanced by the parties; and
  3. the position to be advanced is supported by and consistent with previously adopted policy of the CBA or has broad-based support throughout the CBA, demonstrated through the consultation requirements in this policy.

2. Types of Cases

​The CBA will intervene only:

  1. on issues addressing the core principles of the legal professionFootnote1;
  2. on issues of importance to the legal profession generally, including issues that promote equality in the legal profession and in the justice system; or
  3. in exceptional cases, on substantive legal issues of relevance to lawyers in a particular practice area, where the CBA body proposing the intervention strictly demonstrates that it meets the criteria in articles 1, 2 and 3.

3. Level of Court

  1. The CBA will generally intervene only at an appellate level.
  2. In exceptional cases, an intervention that meets all the other criteria in this policy may be authorized at a court of first instance where:
    1. the intervention proposal demonstrates the exceptional circumstances that justify intervention at a lower court, such as an invitation from that court or where lawyers’ factual expertise is necessary to create a trial record that supports CBA’s legal position;
    2. the proposal provides a feasible plan for robust consultation consistent with the consultation requirements in this policy; and
    3. the consultation reveals broad-based support throughout the CBA that intervention at that level is appropriate.

4. Branch Interventions

  1. Where the Board of Directors determines that a proposed intervention is not warranted by the CBA because the matter is primarily of local or regional concern and that the position sought to be advanced in the intervention:
    1. meets the criteria in articles 1, 2 and 3;
    2. is not inconsistent with the broader interests and concerns of the Association; and
    3. is supported by the Branch Executive in the Branch where the matter is at issue; the Board of Directors may permit an intervention by a CBA Branch.
  2. Where:
    1. a matter is before the courts in more than one jurisdiction;
    2. more than one Branch wishes to intervene in a court in their jurisdiction; and
    3. the matter meets the criteria in articles 1, 2 and 3;
      the Board of Directors may coordinate interventions in the various jurisdictions and the CBA shall assume carriage of any intervention in the Supreme Court of Canada.
  3. Where a matter on which a Branch has intervened in their jurisdiction proceeds to the Supreme Court of Canada, the CBA shall assume carriage of any intervention at the Supreme Court of Canada.

5. Leave to Appeal and Merits

  1. The CBA may intervene after the court agrees to hear the case on the merits, on the application for leave to appeal, or both.
  2. 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 CBA position would likely assist the court in determining whether the case is of sufficient importance to warrant review.
  3. Filing a factum at the leave to appeal stage does not commit the CBA to intervening on the merits.
  4. In appeals where the CBA 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.

6. Joint Briefs

Generally, the CBA will not join in interventions with other organizations.