CBA Intervention Regulation

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 profession^Footnote1;
2. on issues of importance to the legal profession generally, including issues that promote equity 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. (Board, 18 Jan 2024)

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.

Footnotes

Footnote 1

The legal profession, in the public interest, is committed to these core principles:

• An impartial and independent judiciary, without which there is no rule of law;
• An independent legal profession, without which there is no rule of law or freedom for the people;
• Access to justice for all people, which is only possible with an independent legal profession and an impartial and independent judiciary.

And these core principles shall not yield to any emergency of the moment.

Return to footnote 1 referrer

 

 

II Authorization and Responsibilities

7. General

1. Interventions in the name of the CBA or its Branches must be authorized by the Board of Directors. Authorization is subject to the budgetary approval process.
2. The Board of Directors can initiate an intervention or act on a proposal submitted by a Branch, Committee, Section or other CBA body.
3. Applications for leave and factums will only be filed in the name of the CBA and not in the name of a CBA body, unless the matter is primarily of regional or local interest and the Board of Directors has authorized intervention by a Branch in accordance with this policy, in which case, the documents may be in the name of the intervening Branch.
4. In all interventions, other than an authorized intervention by a Branch, the CBA President, or the President's designate, will be named as counsel of record, at the national office address.
5. In naming counsel to represent the CBA in an intervention, the President will have regard to the expertise of counsel, the CBA’s commitment to promote equity and diversity in the profession, and the need to avoid conflicts of interest and the appearance thereof. (Board, 18 Jan 2024)

8. Board of Directors

1. The Board of Directors approves the proposal to intervene. The Policy Committee approves the final factum.
2. The Board of Directors will seek and consider the recommendation of the Policy Committee as to whether an intervention should be authorized.

9. Policy Committee

1. The Policy Committee will provide the Board of Directors with its recommendation as to whether a proposed intervention should be authorized. The Board of Directors will consider, but is not bound by, the recommendation.
2. Where the Board of Directors authorizes a national intervention, the Policy Committee will review the factum, suggest modifications if necessary, and advise the Board of Directors whether (with any modifications suggested by the Committee) it is of high quality and a fair representation of CBA policy.
3. The Policy Committee may monitor judicial developments and identify cases of special interest to the CBA.

10. Advocacy Department

1. The Advocacy Department is responsible for the review and filing processes. The Executive Director of Advocacy may be consulted at any time on possible CBA interventions.
2. A CBA body wishing to propose an intervention should contact the Executive Director of Advocacy as soon as it considers the possibility of seeking authorization.
3. The Department will process the intervention proposal, keep track of notice requirements and ensure submission of the proposal and factum to the Policy Committee and the Board of Directors.
4. he Department will send copies of the intervention proposal and related material to each branch, CBA section, and to CBA committees and subcommittees with a policy mandate, to determine if they have an interest in the subject matter and comments on the proposed intervention.
5. The Department will assist the Policy Committee in carrying out its functions with respect to proposals and interventions. (Board; 28 Sep 2018)

11. Costs

1. The CBA 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.

III Intervention Proposals

12. General

1. Intervention proposals should be addressed to the CBA President and to the Executive Director of Advocacy.
2. Intervention proposals will be sent to each Branch, CBA Section, and to CBA Committees and Subcommittees with a policy mandate, to determine if they have an interest in the subject matter and comments on the proposed intervention.
3. Intervention proposals and feedback from the consultation with CBA bodies will be sent to the Policy Committee, which shall make a recommendation to the Board of Directors.
4. Intervention proposals will be sent to the Finance Committee Chair regarding any financial implications of the proposed intervention.
5. Intervention proposals, feedback from the consultation with CBA bodies, the recommendation of the Policy Committee and any related material will be sent to the Board of Directors for authorization. (Board; 28 Sep 2018)

13. Contents of Intervention Proposals

1. The intervention proposal shall contain the following:
   1. 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 must be attached to (or linked from) the proposal.
   2. The date by which the proposed application for leave to intervene and factum must be filed.
   3. A full statement of the relevant facts giving rise to the question in issue.
   4. A statement of the policy or principles of law adopted or supported by the CBA, with reference to and full quotation of the relevant resolution or other authoritative action by the CBA.
   5. An explanation of why it is important that the CBA address the question in issue.
   6. An account of the applying body's consideration of the matter, including a description of any dissenting views.
   7. An account of any discussions undertaken by the applying body with other CBA bodies on the proposed intervention, including a description of their positions and any dissenting views.
   8. If a completed proposal is submitted less than four weeks before the application for leave to intervene must be filed, a feasible plan for expedited robust consultations with Sections, Branches, Committees and Subcommittees to determine their interest in the subject matter and comments on the proposed intervention.
   9. Disclosure of any personal or professional interest in the matter on the part of any individual or organization participating in the decision to seek the Board of Directors’ authorization to intervene.
   10. The names and firm connection, if any, of those who offer to act for the CBA in the proposed intervention, if approved.
       (j.1) An outline of how those who offer to act for the CBA meet all the criteria in paragraphe 7(5) that the President will consider in naming counsel to represent the CBA in the intervention, namely expertise of counsel, promotion of equity and diversity in the profession, and the need to avoid conflicts of interest and the appearance thereof.
   11. 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 and approved by the Policy Committee.)
   12. If the request relates to a local or regional matter, an explanation of how the position to be taken is not inconsistent with CBA policy and the broader interests and concerns of the CBA. (Board, 1 Dec 2023; 18 Jan 2024)e CBA.

14. Time of Submitting Intervention Proposals and Factums

1. Intervention proposals must be submitted to the President and the Executive Director of Advocacy at least four weeks before the application for leave to intervene must be filed in the court, to ensure sufficient time for thorough consultation and consideration of the proposal.
2. Draft factums must be delivered to the Executive Director of Advocacy at least two weeks before the factum must be filed, to ensure sufficient time for review and approval by the Policy Committee.
3. If the court rules or a court order make it impossible for counsel to deliver the draft factum at least two weeks before it must be filed, counsel must inform the Executive Director of Advocacy when leave to intervene is granted and agree on a reasonable deadline that ensures sufficient time for review and approval by the Policy Committee. (Board; 28 Sep 2018)