The Applicant bankers’ association applied for leave to intervene in Fast-Track Appeals involving a landowner and three mortgagees as Appellants (the “Appeals”). The Appeals focused on whether a common law super-priority right can exist in favour of a private party in respect of environmental obligations that is capable of subordinating rights of pre-existing secured lenders (the “Environmental Super-Priority Right”).

The Court noted that a single Appeal Justice has jurisdiction to render a decision on an Application to Intervene under Rules 14.37(2)(e) and 14.58. The Court also noted that Rule 14.58(3) provides that, unless otherwise ordered, an intervenor may not raise or argue issues not raised by the other parties to the Appeal. The test for intervener status considers: (1) whether the legal interests of the intervenor will be directly or specially affected by the Appeal, or (2) whether the intervenor can provide useful submissions that will bring a unique perspective or special expertise to the subject matter of the appeal that will assist the Court in its deliberations.

The Court granted the Applicant’s Application for Leave to Intervene. The Applicant proposed to address the broader implications on the secured lending regime of the Environmental Super-Priority Right. The Court found that the Applicant’s legal interests will be directly or specially affected by the Appeals and that the Applicant can provide useful submissions that will bring a different perspective or expertise to the subject matter of the Appeals that will assist the Court in its deliberations. The Court therefore granted the Application subject to conditions.