This Is(n't) an Intervention!

 Vento Motorcycles, Inc. v. United Mexican States, 2024 ONCA 480

The Rules of Civil Procedure allow a non-party to ask the court for leave to "intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument." Leave to intervene is discretionary.

Interveners (generally) submit written arguments (factums), and may also be allowed to make oral submissions, but don't get to add new evidence.

CIPPIC "is Canada’s first and only public interest technology law clinic." It is a frequent intervener in technology-related cases, including numerous appeals before the Supreme Court and Federal Court of Appeal.

Vento was, I believe, the first time CIPPIC asked to intervene in a case before the Court of Appeal for Ontario -- and its request was denied.

The details of the case in question (between Vento and the government of Mexico) are not particularly relevant. It was a dispute about the interpretation of the Canadian version of an international model law on arbitration. The court below said a provision should be interpreted one way. On appeal, Vento was arguing that a different interpretation should be followed. CIPPIC asked to intervene to argue in favour of a third, entirely different, interpretation.

The Court said no. Why?

The starting point is that a lot of judges aren't big fans of interventions. This animus is the result of too many interveners filing "me too" factums which do not offer anything novel, and instead simply rephrase the arguments of a party. Since the judges are diligent, they still have to read these factums, or worse, listen to repetitive oral submissions. This is probably why the Supreme Court has started limiting interveners to token submissions of five minutes. Listening to lawyers who care more about being in the Supreme Court (which looks great on a website) than they do saying anything interesting probably gets old quite quickly.

CIPPIC clearly wasn't looking to file a "me too" brief. CIPPIC was explicit that it was going to advance an argument that none of the other parties, or the court below, were advocating. If this was a Charter case, CIPPIC almost certainly would have been granted leave, any one of the three Bedford grounds.

The court gave three explicit reasons for why it refused CIPPIC leave to intervene. In my opinion, CIPPIC had a strong argument on each point.

First, while recognizing that CIPPIC was an expert in "its area," the court was not satisfied that CIPPIC had shown "a sufficient link between its expertise and the particular issue upon which it seeks to intervene," or "how its proposed arguments are informed by its unique perspectives on the issues on appeal."

Basically, the court said "hey, CIPPIC, you guys are great at the IP, privacy, and technology stuff, but how is that relevant to a case about international arbitrations?"

I think this is a great question that courts should be asking of every intervener (especially in Charter cases, where a less-stringent test for interventions is applied, and which are full of "me too" factums). I also think the fact that CIPPIC has intervened in major arbitration cases, including Uber v. Heller (where its submissions specifically focused on the the issue raised in Vento) is a sufficient answer.

Second the Court said the nature of the case, and the parties, cut against intervention: "This case involves two sophisticated parties with capable counsel in a complex international trade dispute. The appeal focuses on narrow, fact-specific issues that turn on particular findings below and certain decisions made during the arbitration process. No access to justice or constitutional issues are engaged."

Again, if the point of intervention is to hear novel/valuable arguments, the sophistication of a party, or the quality of their counsel is not relevant. All that's relevant is the content of their arguments. The complexity or underlying nature of the dispute is also irrelevant. As for it being fact specific, there is nothing in the decision to suggest CIPPIC intended to offer new evidence, or comment on the facts of the case. Instead, CIPPIC proposed to make an argument about what the applicable legal test should be -- a fact agnostic contribution.

That brings us to the court's final (explicit) reason for refusing the intervention: the court shared "Mexico’s concerns that CIPPIC’s intervention runs an unjustified risk of expanding the scope of the appeal, increasing cost and complexity, and causing injustice to the immediate parties," and gave a specific example of how one of CIPPIC's proposed arguments might expand the scope.

Fair enough. Interveners shouldn't be allowed to change what a case is about. However, the decision noted that one of the questions Vento explicitly raised in its notice of appeal was the proper interpretation of "procedural unfairness" -- the very question CIPPIC was proposing a novel answer to. Any concerns about an unfair expansion in scope could have been dealt with by conditioning the grant of leave to CIPPIC making submissions on that question alone. If CIPPIC made any other submissions, they could be disregarded.

I don't know if CIPPIC made these arguments. There was another factor that contributed to the court's decision, and was likely the deciding factor: CIPPIC didn't file a draft factum as part of its motion. In other words, CIPPIC said "we would like permission to file a factum," instead of asking permission to file a specific factum that the court could read before making a decision.

The rules don't require a draft factum when seeking leave to intervene, but including one in the motion materials is a really good idea.

A draft factum could have answered all the court's questions and concerns:

  • How could CIPPIC's expertise be relevant to the issue? The best possible demonstration would be a draft factum leveraging that expertise.
  • Could CIPPIC offer something new and relevant, even in a complex case between sophisticated parties with great lawyers? Gee, I don't know your honour, why don't you read our draft factum and decide for yourself?
  • Would CIPPIC's participation unfairly expand the scope of the appeal? Here's our factum. Let us know which parts are out-of-scope, and we will cut them.

Would that have guaranteed CIPPIC's success? No. Maybe reading the draft factum would have confirmed all of the court's doubts and fears.

But we know that the court repeatedly commented on its unfortunate absence.

Appellate courts don't like to speculate. They get very annoyed when they're asked to make decisions based on incomplete evidence. They usually deal with that by assuming (sometimes implicitly) that the evidence is missing because it would cut against the party that could have provided it. The judge in this case clearly had some doubts about whether CIPPIC's proposed contribution would be valuable. Since she weren't able to assess the contribution herself, she concluded it wasn't.

If you combine that with a pre-existing judicial animus to interventions, it's amazing that any intervener gets leave without providing a draft fact.

TL;DR: If you are seeking leave to intervene in the Court of Appeal, include a draft factum.

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