14.58: Intervenor status on appeal

Case Summary

Canadian Life and Health Insurance Association Inc (the “Association”) applied to intervene in an Appeal regarding the interpretation of a 10-day cancellation clause in the context of a life insurance policy underwritten by the Appellant. The Association sought to intervene, arguing that the Decision may impact the interpretation of all life insurance policies issued in Alberta as well as many issued in the rest of Canada.

The Court reviewed the test for intervention under Rule 14.58(1), which requires determining the proposed intervener’s interest in the subject matter of the proceeding by examining (a) if the intervener will be directly and significantly affected by the Appeal’s outcome, and (b) if the intervener will provide some expertise or fresh perspective on the subject matter that will be helpful in resolving the Appeal.

The Court went on to clarify that a proposed intervener must provide fresh information or a fresh perspective in order to be granted permission to intervene; simply establishing an interest affected by the Appeal is not enough. However, Pentelechuk J.A. went on to state that the test is not “conjunctive” such that a proposed intervener must always establish both. The Court relied on the recent Decision from the Alberta Court of Appeal in VLM v Dominey Estate, 2023 ABCA 226, to support the notion that the test is not strictly conjunctive or disjunctive, but rather involves a consideration of both factors in all cases.

The Court concluded that the Association established a particular interest in the outcome of the Appeal. However, when deciding whether the Association brought any particular expertise or a fresh perspective to the Appeal, Pentelechuk J.A. found that the submissions came uncomfortably close to taking a position on the merits of the Appeal that aligned with the Appellant. The Court emphasized that there was nothing precluding the Association from working with Appellant’s counsel to flesh out the arguments on Appeal but noted that the purpose of intervention is not to provide “second counsel” by supplementing the efforts of counsel for the parties.

Further, Pentelechuk J.A. found the timing to be problematic, as there was evidence that the President of the Appellant was also a Director of the Association’s Board of Directors, so presumably the Association would have been well aware of the Decision under Appeal. The Court concluded that the late filing of the Application would prejudice the Respondent by impacting their preparation for the Appeal. Thus, Pentelechuk J.A. dismissed the Application.

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