Case Citation: Canadian Life and Health Insurance Association Inc v. Thomson, 2023 ABCA 340 Written By: Mohit Malhotra, Associate Background: In an appeal concerning the interpretation of a pivotal 10-day cancellation clause in a life insurance policy underwritten by IVARI, the Canadian Life and Health Insurance Association Inc. (the “Association”) filed a formal application to intervene. The case revolved around a 10-year term policy, held by Janice Thomson (“Ms. Thomson”), providing life coverage for her husband, James Thomson, with a significant death benefit of $1.3 million. The policy allowed for conversion to a universal life policy, offering lower premiums and a reduced death benefit of $400,000. Ms. Thomson opted to convert the policy, and her husband tragically passed away within the 10-day cancellation period. Subsequently, Ms. Thomson sought to exercise her right to cancel the converted policy, claiming the $1.3 million death benefit. IVARI contested the claim, asserting that the converted policy was still in effect at the time of her husband’s death. The summary trial judge decided in favour of Ms. Thomson [Thomson v. Ivari, 2022 ABKB 598]. IVARI filed an appeal. Now, the Association, representing a substantial portion of Canada’s life and health insurance companies, sought to intervene in the appeal. They underscore the broader significance of the case, emphasizing its potential impact on the interpretation of life insurance policies not only in Alberta but potentially throughout Canada. IVARI refrained from taking a stance on the application, while Ms. Thomson opposed it, contending that the Association’s proposed submissions are unnecessary and align more with supporting IVARI’s position on appeal than offering a genuinely fresh perspective. The Test For Intervention: In accordance with Rule 14.58(1) of the Rules of Court, a singular judge holds the authority to grant intervention status in an ongoing appeal. The criteria for intervention necessitate an assessment of the proposed intervener’s vested interest in the subject matter of the proceeding. This assessment involves examining: whether the intervener will experience a direct and substantial impact from the appeal’s resolution; and whether the intervener can offer expertise or a new perspective that would aid in resolving the appeal, as outlined in Orphan Well Association v Grant Thornton Limited, 2016 ABCA 238 [“Orphan Well”] at para 8. In the context of ongoing debates surrounding whether a proposed intervener must fulfill both the criteria of an affected interest and possessing special expertise or perspective, or if meeting one criterion suffices, recent cases have adopted the approach articulated in Orphan Well at para 9. This approach asserts that a proposed intervener must bring forth fresh information or a novel perspective to be granted permission to intervene, emphasizing that merely establishing an interest affected by the appeal is inadequate. Importantly, it is essential to acknowledge that the test is neither strictly conjunctive nor disjunctive. As elucidated in V.L.M. v Dominey Estate, 2023 ABCA 226 [“Dominey”] at para 3, the test entails a consideration of both factors in all cases. Analysis: The Court determined that the Association had reasonably established a distinct interest in the resolution of the ongoing appeal, that the outcomes could directly and significantly impact many of its members. However, the Court emphasized in paragraph 9 that the central focus of the application hinges on whether the Association provides unique expertise or a fresh perspective to the appeal. The Association’s proposed submissions covered three key areas: an exploration of the statutes governing life insurance contracts in Alberta, particularly emphasizing the Fair Practices Regulation, Alta Reg 128/2001, s 5, which mandates a 10-day rescission period for life insurance contracts— an aspect not cited by the parties involved; an examination of the contractual concepts of void, voidable, and void ab initio in the context of life insurance contracts; and a presentation of relevant case law pertaining to life insurance contract interpretation that has not been referenced by the parties. The Court, in agreement with Ms. Thomson, emphasized the essence of the appeal as centering on contractual interpretation, a matter routinely addressed by the Court. The court held that the proposed submissions of the Association are taking a position on the merits of the appeal, raising concerns about potentially serving as “second counsel” in support of IVARI’s stance. In this regard, the Court noted under paragraph 12: [12] … Having reviewed the proposed factum of the Association, the submissions come uncomfortably close to taking a position on the merits of the appeal which happens to align with the appellant, IVARI. … The Court further highlighted at paragraph 12 that while the Association could collaborate with IVARI’s counsel to elaborate on the arguments, intervention is not intended to function as supplementary legal representation. Additionally, the Court found the timing of the application, heard on November 22, 2023, with the appeal scheduled for November 28, 2023, problematic. Although the Association attached its proposed factum to its materials, the Court viewed the late filing as potentially prejudicial to Ms. Thomson’s preparation for the appeal. As a result, the Court dismissed the Application of the Association. As of the time of writing this article, the Association had not initiated an appeal to the Supreme Court of Canada. The author commits to ongoing monitoring and reporting on any forthcoming developments. Questions: If you have any questions with respect to this newsletter, please contact Mohit Malhotra at mmalhotra@parlee.com or 403.294.7098.