Case Bites for February 12, 2024

Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek and Christie Dewar
Canadian Life and Health Insurance Association Inc v Thomson, 2024 ABCA 43
Intervenor | Costs

This matter addressed costs for a failed application by Canada Life and Health Insurance Association for intervenor status. The Plaintiff sought costs for opposing the application. The Court accepted that the general rule is that costs are not awarded for or against intervenors:

[2]               Indeed, the general rule that costs are neither awarded to nor against interveners is longstanding: see Harper v Harper1979 CanLII 168 (SCC), [1980] 1 SCR 2 at 16; Young v Young1993 CanLII 34 (SCC), [1993] 4 SCR 3 at 138; and B(R) v Children’s Aid Society of Metropolitan Toronto1995 CanLII 115 (SCC), [1995] 1 SCR 315. B(R) was a case where the intervener in question was the Ontario Attorney General. The court was explicit about the rule relating to a “public intervener”, referring to an award of “costs against an intervening Attorney General, acting… in the public interest” being permitted “only in very rare cases” (para 122), “the rule that a party granted intervener status in the public interest is, generally, neither entitled to nor liable for the costs in the matter” (para 176) and “the general rule that costs not be awarded to or against an intervener in the public interest” (para 178).

However, the Court concluded that discretion to award costs was not impacted by this rule. While the general rule is that an intervenor should bear its own costs, it does not necessarily follow that an intervenor should never be liable for costs:

[3]               It is clear from review of the case law that the court’s discretion to award costs both to and against an intervener is not fettered by this general rule.

[4]               In Alberta, while this Court has acknowledged the general rule that an intervener should bear its own costs, it does not necessarily follow from such a general rule that an intervener should never be liable for costs. For instance, Slatter JA in Métis Nation of Alberta Association v Alberta (Indigenous Relations)2022 ABCA 250 at para 17 held that while those granted intervener status are not entitled to costs of the appeal or the intervener applications, “[w]hether they are liable to pay costs will be in the discretion of the panel that hears the appeal” [emphasis added].  In Armcorp 4-18 Ltd (Bankruptcy of the Estates) v Canada1999 ABCA 95 at para 15, after dismissing the appeal this Court ordered the intervener, the Royal Bank of Canada, to pay costs of an intervention motion.

A key consideration for costs is whether the intervention was primarily for public or private interest:

[8]               Classifying the intervention as, or predominantly as, public interest or private interest is an important consideration in determining whether the general rule on costs should apply. Intervention applications are increasingly common. Some are successful, some are not, but when the interest advanced is a private one and the application is unsuccessful, there is no principled reason why the proposed intervener should not bear costs. Awarding costs in the appropriate case may also serve to mitigate against interventions that are nothing but “busybody” applications: see Wong v Giannacopoulos2011 ABCA 206 at para 10.

Ultimately the Court concluded that since Canada Life represented private interests, costs were appropriate:

[10]           The Association is not a public interest litigant, rather it represents the majority of life insurers in Canada. The Association’s proposed application was clearly made to further private interests.

[11]            In dismissing the intervention application, I found that the Association’s proposed submissions were not necessary for the court to properly decide the issues and were not a “fresh perspective” but rather supported IVARI’s position on appeal. The Association’s proposed factum came uncomfortably close to taking a position on the merits of the appeal which happened to align with IVARI.

[12]           In conclusion, I exercise my discretion to award Ms Thomson costs of the intervener application against the Association.  She has claimed double column 4 costs without explanation.  Single column 4 costs are appropriate. She is therefore awarded fees of $2,700, charges of $9.25 and applicable GST.