Master Schlosser

2.10: Intervenor status
3.59: Claiming set-off
3.74: Adding, removing or substituting parties after close of pleadings

Case Summary

The Applicant, The Guarantee Company of North America, sought to participate in proceedings where the Plaintiff had commenced an Action against a company, who subsequently became bankrupt, and the Trustee in bankruptcy declined to defend. The Applicant’s surety was in respect of a lien bond which replaced the builders’ liens filed by the Plaintiff, bringing the matter within the joint purview of the Builders Lien Act, RSA 2000, c B-7, and the Rules of Court.

Master Schlosser noted that Rule 3.74 is somewhat more restrictive than the joinder provision under the former Rules. Former Rule 38 granted the Court wide powers to add parties with or without the Application of any Party; whereas, current Rule 3.74(2)(b) requires that an Application to add any party who is not a plaintiff must be “made by a party”. Master Schlosser held that this created “a technical bar to the Guarantee’s application”.

As for Intervenor status pursuant to Rule 2.10, Master Schlosser pointed out that the term “Intervenor” is not defined by the Rules. The technical meaning was developed through the common law, which grants the Intervenor standing but on a lesser basis than a full Party.

Master Schlosser considered the factors for granting Intervenor status as set out in Suncor Energy Inc v Unifor (Local 707 A), 2014 ABQB 555 (CanLII):

1) Will the proposed interveners be specially or directly affected by the decision of the Court…;

2) Will the proposed interveners bring special expertise or insight to bear on the issues facing the Court…;

3) Are the proposed interveners’ interests at risk of not being fully protected or fully argued by one of the parties…;

4) Will the proposed Interveners presence ‘provide the court with fresh information or a fresh perspective on a constitutional public issue’ …. [citations omitted].

Master Schlosser added that the considerations included whether granting the right to intervene would unduly prejudice a party. Master Schlosser held that the Applicant’s rights would be affected by the outcome of the Action and that their interest would not be fully protected or argued. However, Master Schlosser noted that the Applicant did not bring any special expertise, insight, or fresh information, and that “mere financial interest usually isn’t enough”. Master Schlosser ultimately held that the unique circumstances of this case were not suitable for the application of Rule 2.10.

Master Schlosser granted the Application to add the Applicant to the Action for the limited purpose of promoting the defence of the Defendant since there was no real prejudice, and it would fulfil a “natural justice component” by giving a voice to the Defendant’s position.

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