An Amicus Call to Action in Canada—And a Novel Approach to Intervention

Published: June 23, 2021

Noelle Engle-Hardy Smart & Biggar Toronto, Canada International Amicus Committee—Canada Amicus Subcommittee

Nancy A. Miller Miller IP Law Toronto, Canada International Amicus Committee—Canada Amicus Subcommittee

Mark L. Robbins Bereskin & Parr LLP Toronto, Canada International Amicus Committee—Canada Amicus Subcommittee

INTA is calling on its members to suggest cases around the world for submission of amicus curiae briefs, continuing an established trend of submitting a record number of briefs worldwide in 2020. In Canada, an innovative approach may change the intervention process.

INTA regularly participates in trademark proceedings around the world as an amicus curia—or “friend of the court.” Through such participation, the Association can advance advocacy objectives and help to ensure the coherent evolution of trademark law. Last year, INTA filed 10 briefs globally, including four in the European Union, five in the United States, and one in India. In 2021, so far, the Association has filed three briefs, all in the EU.

In Canada, INTA participated as intervener in Masterpiece v. Alavida Lifestyles, 2011 SCC 27—a leading case on fundamental trademark law issues heard in the Supreme Court of Canada, which rarely hears trademark cases. The federal courts typically hear these cases. INTA therefore has significant interest in the federal courts’ approach to intervention.

An Innovative Approach to Intervention Takes Shape in Canada

In recent decisions, Justice David Stratas of the Federal Court of Appeal has commented on intervention and has adopted an innovative approach. The decision in Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108, highlights procedures that the court may adopt to streamline and focus the intervention process and provides guidance to would-be interveners in the context of the COVID-19 pandemic.

Teksavvy was an appeal from the federal court’s first site-blocking injunction, which required 11 Internet service providers to block subscriber access to a list of domains and IP addresses associated with the defendants. Teksavvy opposed the injunction motion and appealed the court’s site-blocking order. Six groups of parties moved to intervene in Teksavvy’s appeal. The court took an innovative approach to the various parties’ motions for leave to intervene. It was guided by a 2014 Supreme Court of Canada decision that urged Canadian courts to promote judicial efficiency and speed and reduce the expense of litigation.

First, the court used case management direction to focus the proposed interveners’ submissions. Parties were informed of key features of the law on intervention. In the court’s view, it was more efficient to announce the law at the outset, inviting the parties to correct or supplement it if necessary. The direction warned that the court has strict criteria governing leave to intervene and insisted that they be fulfilled. Justice Stratas emphasized that the court need not admit all who apply to intervene.

The court assembled the interveners into like-minded groups making broadly similar submissions. It did not choose one representative intervener in each group or allow each party to intervene independently. Rather, the court found that the best solution was to permit one factum with tight page limits from each of the like-minded groups. “The collaboration of the related parties in each group is likely to create useful synergies and a more compact submission, which invariably happens to be a more persuasive submission,” it said.

Justice Stratas stressed that proposed interveners must take the record and issues as they find them, commenting that “those who want to make freestanding policy submissions should wander down the street to lobby a politician for legislation.”

Three months later, Justice Stratas issued a second decision, this time dealing with motions to intervene filed by 12 separate parties and again commented on the potential risks of permitting a multitude of interventions. Canada (A-G) v. Kattenburg, 2020 FCA164, involved judicial review of a decision of the Canada Food Inspection Agency concerning the labeling of wine. The wine was made in the West Bank and the label described it as a “product of Israel.”

Justice Stratas said the court’s test governing leave to intervene focused on whether a moving party’s submissions will be useful in the case. The test requires the court to consider the following four questions:

  1. What issues are live before the panel determining the proceeding?
  2. What does the moving party intend to submit in the proceeding?
  3. Are the moving party’s submissions doomed to fail?
  4. Will the moving party’s arguable submissions advance the determination of the panel determining the appeal?

He held that some categories of submissions should be excluded, namely, “those that duplicate those of others” and “those that make political points without law, pronounce freestanding policy questions untethered to law, or offer submissions irrelevant to the legal task the Court must perform.”

The court determined that none of the interventions should be accepted and then offered a number of concluding observations, including that intervention motions illustrate a growing and regrettable tendency “of those seeking political and social reform to see courts as unfettered decision-making bodies of a political or ideological sort that can give them what they want.”

The decisions in Teksavvy and Kattenburg suggest that the court is willing and able to take an innovative approach to maximize the usefulness of interventions. To do so, the court may issue specific directions considering: (1) judicial economy and efficiency; (2) the similarities of positions; and (3) the potential for collaboration from like-minded parties.

The possibility of collaboration from potential interveners that share interests may promote more diverse participation in the appellate process. However, these decisions also reflect a concern over an “interventionist” tendency in courts, and the view that expanding third-party intervention is a troubling extension of this tendency that must be carefully and strictly controlled and limited.

Justice Stratas issued a further decision at the end of January 2021—Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 13—which relies on principles from Teksavvy and Kattenburg and again reflects this concern: 13 parties sought leave to intervene in the proceeding and all were denied.

To alert INTA of a case in Canada where an intervention might be appropriate or to request that INTA file a brief there, please contact Iris Gunther. For all regions, please visit the INTA website for information on INTA’s policies and procedures for submitting a case for consideration.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest. 

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