Wide-open-door policy ‘is not how we roll,’ Federal Court of Appeal judge tells would-be interveners

Law360 Canada (July 17, 2025, 4:48 PM EDT) -- The Federal Court of Appeal’s senior puisne judge says those applying to intervene at the national intermediate appellate court should ask themselves whether their presence “will advance our work.”

On July 15, 2025, Justice David Stratas dismissed motions from the Canadian Association of Refugee Lawyers (CARL) and the Canadian Council for Refugees to intervene in a refugee appeal that challenges the determination below that a Bangladeshi man is inadmissible to Canada because there are reasonable grounds to believe he was a member of the Bangladesh Nationalist Party, an organization found to have engaged in terrorism: Talukder v. Canada (Minister of Public Safety and Emergency Preparedness), 2025 FCA 132.

Last year, Federal Court Justice Henry Brown dismissed the appellant’s application for judicial review, ruling that the decision finding him inadmissible, by the Immigration Division of the Immigration and Refugee Board, was reasonable, coherent and justified based on the law and record.

At the Federal Court of Appeal, the central legal issue “is the proper analytical approach for the heightened [specific] intent requirement for organizations alleged to have engaged in terrorist acts,” Justice Stratas said.

CARL and the Canadian Council for Refugees argued that their expertise would shed light on that question and, in particular, on how international law bears on the federal Immigration and Refugee Protection Act.

However, the respondent minister of public safety opposed their intervention motions.

Justice Stratas, whose reasons provide counsel and would-be interveners with legal guidance on how to analyze and bring motions to intervene, agreed that the motions fell “short of the mark.” He said he agreed with the minister that many of the submissions by the proposed interveners either added new issues or largely repeated the appellant’s arguments, contrary to court Rule 109 and case law.

“The court has regard for the proposed interveners as experts in immigration and the international law that bears on it,” Justice Stratas wrote. “But, in this case, the court is not persuaded that the proposed interveners will be useful to the actual, real issues in this appeal, beyond duplicating the appellant’s submissions. They have not met the all-important requirement of ‘usefulness.’”

He added, “Without commenting at all on the correctness or otherwise of the submissions the appellant makes in its memorandum, it is well-researched, extremely detailed and comprehensive. It very much covers the waterfront and beyond, as far as the issues relevant to this case as defined in the notice of appeal, properly construed, are concerned. The proposed interveners have not persuaded the court that their help is needed.”

Justice Stratas said both would-be interveners also failed to “restrict themselves on the central legal issue in this case and, rather, make submissions relevant to issues not before us. Thus, in some respects, the submissions are unnecessary and verge into new issues.”

“It is not open to interveners — strangers to the proceeding — to add to those issues,” he noted. “Interveners must remember that they are guests at a table that has already been set.”

Justice Stratas detailed several other reasons why he dismissed the motions and, speaking generally, provided “a few background words about interventions.”

“Some — not the proposed interveners here — think we are like some other courts that just about always grant intervener motions,” he remarked.

“Those courts welcome just about anyone into a case and let them raise just about anything loosely or remotely connected to the case, often with little legal content.”

“That is not how we roll,” the judge explained. “We focus on the legal issues raised by the parties or those issues we think are necessary to decide the parties’ case — not issues that others think should have been raised — and ask whether a proposed intervener’s presence will advance our work.”

“A narrow view?” he observed. “Perhaps, at least in the eyes of some, particularly the louder, more partisan voices in the intervener community. But we are mindful that cases belong to the parties who often have sacrificed so much to get them ready for hearing, not late-arriving special interest groups and other outsiders whose agendas might be different from the parties and the court. We are also a court of law that applies governing law, not policy views, less still our inclinations and feelings.”

Justice Stratas went on to note that although the proposed interveners did not succeed, they “are well-represented, quality organizations” that did “their best to show why their intervention is warranted and why they meet the relevant tests.”

The motions to intervene were decided based on written representations.

Counsel were not immediately available for comment.

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