Alberta Court of Appeal orders insurance association to pay costs for failed intervention attempt

In a recent judgment, the Alberta Court of Appeal ordered the Canada Life and Health Insurance Association Inc. to pay costs following its unsuccessful attempt to intervene in an appeal concerning the interpretation of a life insurance policy.

The case, Canadian Life and Health Insurance Association Inc v Thomson, 2024 ABCA 43, saw the Association's intervention application denied, with the subsequent appeal also dismissed, affirming the applicant, Janice Thomson’s, judgment against the respondent, IVARI.

The court acknowledged the longstanding general rule in Canadian jurisprudence that costs are neither awarded to nor against interveners. The court highlighted that while there is a general rule against awarding costs in such situations, it is not an absolute prohibition. The discretion lies with the court to decide based on the specific circumstances of each case.

The Alberta Court of Appeal noted that the reluctance to award costs against interveners was primarily associated with "public interest" interventions, often seen in constitutional challenges, to encourage access to justice and advocacy on matters of significant public concern. However, the court said many interventions seek to advance private interests rather than the public good.

The court distinguished public and private interveners, suggesting that costs could be awarded against those whose interventions serve primarily private interests and whose applications are unsuccessful. This approach aims to deter frivolous or "busybody" interventions, ensuring that only those with a genuine stake or unique perspective contribute to the legal discourse.

In this specific case, the Association, representing the majority of life insurers in Canada, was deemed to be advancing private interests through its attempted intervention. The court found that the Association's submissions were unnecessary to resolve the appeal and closely aligned with IVARI's position rather than offering a fresh perspective.

Ultimately, the court exercised its discretion to award costs against the Association, ordering it to pay Thomson costs totalling $2,700, in addition to charges of $9.25 and applicable GST.