Ruling on intervener status requests
Last updated: May 2017
Purpose of guidelines
The purpose of these guidelines is to assist members in determining whether to grant a request by a non-party to participate in an appeal as an intervener.
Since starting its operations in April 2013, the Tribunal has received only one request to participate as an intervener. These guidelines are therefore limited to the determination of whether to grant intervener status; they do not address the process to be followed once intervener status has been granted. More detailed guidelines will be developed over time. In the interim, members should contact Legal Services and inform their vice-chairperson when dealing with a request to participate as intervener.
These guidelines do not apply to requests to participate as a party under subsection 10(1) of the Social Security Tribunal Regulations (Regulations) or persons added as parties under section 65 of the Department of Employment and Social Development Act (DESD Act).
What is an intervener?
An intervener is a person or organization who does not have a direct interest in a particular court or tribunal proceeding, but is granted intervener status on a discretionary basis because their involvement would be helpful to the determination of the issues. The intervener’s participation rights are determined by the Tribunal member and are generally more limited than those of a party. For example, intervention is widely used by specialized organizations and advocacy groups to present submissions before courts and tribunals on issues of public interest within their expertise.
Power to grant intervener status
In Canada (Combines Investigation Act Director of Investigation & Research) v. Newfoundland Telephone Co.,  2 S.C.R. 466, the Supreme Court of Canada noted that in the absence of express provisions to the contrary, a tribunal’s power to grant intervener status may be implied from its power to hold hearings or conduct an inquiry.
The DESD Act and the Regulations do not contain any express provisions regarding intervention. However, the Tribunal has the power to conduct hearings, remedy gaps in the Regulations by way of analogy (s. 3(2) of the Regulations) and add a person as a party to a proceeding (s. 10(1) of the Regulations).
Factors to consider
When determining whether to exercise their discretion to grant a request for leave to intervene, members should contact Legal Services and inform their vice-chairperson. Members may consider factors such as:
- whether the proposed intervener has a direct interest in the decision and should instead be added as a party under s. 10(1) of the Regulations;
- whether the proposed intervener has a genuine interest in the issues raised;
- whether the proposed intervener will bring different and valuable insights and perspectives on the issues compared to the parties;
- whether the issues on which the proposed intervener seeks to participate are justiciable, in the sense that they are capable of being decided in accordance with the law (e.g. as opposed to a political question);
- whether granting intervener status would be in the interest of justice, e.g. due to the particular importance, complexity or public interest nature of the issue;
- whether granting intervener status would be inconsistent with the objective of ensuring the “just, most expeditious and least expensive” determination of the case on its merits (s. 2 and 3(1) of the Regulations), and whether those objectives may be met by imposing limits on the proposed intervener’s participation.
Decision granting intervener status
If the member decides to grant the request for intervener status, the decision should specify the manner in which the intervener will be allowed to participate.
Depending on the circumstances and the form of hearing, the member may consider whether the intervener:
- may file evidence;
- may file written submissions;
- may call witnesses at the hearing and cross-examine witnesses;
- may make oral submissions;
- must limit their evidence and/or submissions to a particular issue or issues;
- may have access to all or a portion of the evidence before the Tribunal.
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