Rule 13 is about intervening in court proceedings. Court proceedings are often commenced by one party (e.g. a plaintiff, applicant or appellant) against another party (e.g. defendant or respondent). A person may not be one of the parties initially involved in a proceeding, but they may still have an interest in its subject matter or be affected by its outcome. This person may ask the court to be granted intervener status so that they can participate in the proceeding. The court has significant discretion on whether to allow or deny interventions. If the court allows the intervention, the person becomes an intervener.

Rule 13 provides for two different types of interventions. An intervener may request by way of a motion to participate as an added party (Rule 13.01) or as a friend of the court (Rule 13.02). A party intervener is often someone that has a direct or private interest in a proceeding. Friends of the court, or non-party interveners, may also be referred to using the Latin phrase amicus curiae. As a friend of the court, this type of intervener is expected to be more neutral than a party intervener.

Party interveners may be permitted to present evidence, conduct cross-examinations, and make written and oral submissions. In contrast, friends of the court are often not involved in the fact-finding process and are limited to presenting written and oral submissions. Both types of interveners are not allowed to introduce new issues or claim new relief. Instead, they are limited to addressing issues already contained in the pleadings that commenced the proceedings. Accordingly, a person who wants to seek damages or some other relief that is not already provided for in the pleadings would need to be added as a party under Rule 5.03 or commence their own proceeding. (For cases providing more on the principles behind Rule 13, jump ahead to Intervention (R. 13) -- 1. Principles.)

A person may seek to intervene in any type of proceeding, including in matters before the Divisional Court or Court of Appeal (Rule 13.03). Courts have also permitted interventions in various stages of proceedings such as on motions to adduce fresh evidence and on motions for leave to appeal.

Intervening as an Added Party

RULE 13 INTERVENTION

LEAVE TO INTERVENE AS ADDED PARTY

13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding. R.R.O. 1990, Reg. 194, r. 13.01 (1).

Rule 13.01 allows a person to apply to intervene as an added party to a proceeding. This type of intervention is known as a party intervention. In contrast, Rule 13.02 allows a person to intervene as a friend of the court and this is known as a non-party intervention.

A person seeking to intervene as a party under Rule 13.01 has to satisfy one of the three criteria set out at Rule 13.01(1):

■ they have an interest in the subject matter of the proceeding;

■ they may be adversely affected by a judgment in the proceeding; or

■ they have a question of law or fact in common with one of the parties to the proceeding.

In terms of the first criteria, an “interest” does not mean being curious or wanting to learn about a proceeding. Instead, “interest” has been interpreted narrowly and refers to a strong connection to or stake in the subject matter of the proceeding such as a legal interest. For example, a person who has a mortgage over a piece of real property would be said to have a legal interest in the property. In litigation involving that property, the person with a mortgage over it would be said to have an interest in the subject matter of the proceeding. In addition to legal interests, an “interest” for the purpose of Rule 13.01(1)(a) may also include a person’s interest in protecting their integrity or reputation. An example of this is seen in proceedings where a party is appealing a trial decision that they lost on the basis that their lawyer was incompetent. The lawyer would have an interest in protecting their reputation and may intervene on that basis. (For cases involving interventions by lawyers, jump ahead to Intervention (R. 13.01) -- 2. By Lawyers.) Having an interest in the precedent that a case may set is not sufficient on its own to justify leave to intervene.

For the second criteria, being “adversely affected” means that the judgment in the proceeding could be harmful or unfavourable to that person. The adverse impact must be greater to that person than it would be to a member of the general public. For example, a person that is a potential beneficiary under an insurance policy would be adversely affected by a decision that prevents them from receiving insurance proceeds.

For the third criteria, a question of law or fact is a question that a court is being asked to answer. For example, in order to resolve a real property dispute, a judge may have to answer whether a party is the registered owner of a particular piece of property. The issue of whose name is listed on the title of the property would be a question of fact. If there are multiple people alleging that they own the property, then they would have a question of fact in common with each other.

Where the proposed intervener satisfies one of the criteria listed in Rule 13.01(1), the court goes on to consider whether adding the proposed intervener would cause undue delay or prejudice for the other parties to the proceeding.

LEAVE TO INTERVENE AS AN ADDED PARTY

13.01 (2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. R.R.O. 1990, Reg. 194, r. 13.01 (2).

The decision to allow a person to intervene is at the discretion of the judge. Even where a proposed intervener satisfies all the criteria listed in Rule 13.01(1), a judge may decline to allow the intervention on the basis it causes undue delay or prejudice or for some other concern (Rule 13.01(2)). Where a judge allows an intervention pursuant to Rule 13.01, the intervening party is often given the same participation right as the existing parties to the proceeding including the right to file materials, conduct cross-examinations, and present oral argument. However, in order to minimize delay or prejudice, the judge may also limit their participation rights. For example, the intervener’s right to cross-examine may be limited to particular topics and their oral submissions at trial may be shorter than the other parties and limited to particular topics. (For cases providing more on intervening as a party, jump ahead to Intervention (R. 13.01) -- 1. As Added Party.)

Test for Leave to Intervene as a Friend of the Court

LEAVE TO INTERVENE AS FRIEND OF THE COURT

13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or associate judge, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument. R.R.O. 1990, Reg. 194, r. 13.02; O. Reg. 186/10, s. 1; O. Reg. 711/20, s. 7; O. Reg. 383/21, s. 15.

The factors to be considered in deciding whether to allow a person or entity to intervene as a friend of the court pursuant to Rule 13.02 are:

■ the nature of the case;

■ the issues involved;

■ the likelihood that the proposed intervener can make a useful and distinct contribution to the resolution of the appeal not otherwise offered by the parties; and

■ whether the intervention will cause injustice to the parties or undue delay.[2]

(For cases providing more on intervening as a friend of the court, jump ahead to Intervention (R. 13.02) -- 1. As a Friend of the Court.)

The court has significant discretion in considering the above factors and determining whether to grant an intervention.

Nature of the Case & Issues Involved

Courts are less stringent in considering the factors for granting intervener status as a friend of the court pursuant to Rule 13.02 in cases involving constitutional or other public interest or public policy issues. In contrast, courts are more reluctant to permit interventions when the underlying litigation is essentially private in nature.

Where the intervention is in a constitutional case, the court may permit an intervention where only one of the following three criteria is met by the proposed intervener:

■ it has a real substantial and identifiable interest in the subject matter of the proceedings;

■ it has an important perspective distinct from the immediate parties; or

■ it is a well-recognized group with special expertise and a broadly identifiable membership base.[3]

The three criteria set out in Bedford are viewed by courts in conjunction with the four factors set out in Peel. Accordingly, even where the proposed intervener meets one of the three Bedford criteria, the court may still expect them to satisfy the basic requirement from Peel that their participation will result in a useful and distinct contribution not otherwise offered by the parties. (For cases providing more on intervening in constitutional litigation, jump ahead to Intervention (R. 13) -- 2. Constitutional Litigation.)

Useful and Distinct Contribution

A contribution is not useful if it simply repeats issues and arguments put forward by the parties, but some overlap is permitted.[4] A well-recognized group with special expertise and a broadly identifiable membership base may be better able to provide a useful and distinct contribution to the resolution of the matter. Intervention is especially helpful where the interests of the more vulnerable are at stake, and the outcome will have an impact beyond the private rights of parties.[5]

There is a benefit to courts in having relevant possibilities brought to their attention, including submissions on the impact of a potential judgment on those not before the court. It is acceptable for an intervener only to bring a slightly different perspective and only to be impacted by certain aspects of the ultimate decision.[6]

An intervener under Rule 13.02 is intervening as a friend of the court and is expected to assist the court by advancing arguments in support of a public interest that might not otherwise be adequately represented by the parties to the proceeding. They are not expected to assist one of the parties to the detriment of another. However, an intervener’s position may be aligned with one of the parties to a proceeding. The fact a proposed intervener is not impartial and prefers a particular outcome for a proceeding is not a reason to deny it the right to intervene.[7] When there are multiple applicants for leave to intervene, a secondary consideration for the court is to achieve some balance between the positions to be advocated.[8]

Angel Ronan Entwerfen™ Firm; Journal, Intellectual Property with ENTWERFEN ™ Litigation

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Rule 13 (Intervention)

1. Summary: Intervention

Introduction

Intervening as an Added Party

Test for Leave to Intervene as a Friend of the Court

LEAVE TO INTERVENE AS FRIEND OF THE COURT

Nature of the Case & Issues Involved

Useful and Distinct Contribution

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