Mosten Investment LP Appellant/Respondent by Cross-Appeal (Applicant) v. The Manufacturers Life Insurance Company o/a Manulife Financial, 2019 SKCA 141

Court of Appeal for Saskatchewan Citation: Mosten Investment LP v The Manufacturers Life Insurance Company o/a Manulife Financial , 2019 SKCA 141 Date: 2019-12-23 Docket: CACV3407 Between: Mosten Investment LP Appellant/Respondent by Cross-Appeal (Applicant) And The Manufacturers Life Insurance Company o/a Manulife Financial Respondent/Appellant by Cross-Appeal (Respondent) And Canadian Life and Health Insurance Association Proposed Intervenor Docket: CACV3408 Between: Atwater Investment LP Appellant/Respondent by Cross-Appeal (Applicant) And BMO Life Assurance Company Respondent/Appellant by Cross-Appeal (Respondent) And Canadian Life and Health Insurance Association Proposed Intervenor Docket: CACV3409 Between: Ituna Investment LP Appellant/Respondent by Cross-Appeal (Applicant) And Industrial Alliance Insurance and Financial Services Inc.

Respondent/Appellant by Cross-Appeal (Respondent) And Canadian Life and Health Insurance Association Proposed Intervenor Before: Caldwell, Barrington-Foote and Tholl JJ.A. (in Chambers) Disposition: Application denied Written reasons by: The Court On Application From: 2019 SKQB 75 , 2019 SKQB 76 and 2019 SKQB 77 , Saskatoon Application Heard: December 19, 2019 Counsel: Eliot Kolers for the Applicant, Canadian Life and Health Insurance Association Inc. (by telephone) Ronald L. Miller, Q.C. for Mosten Investment LP (by telephone) Gordon J.

Kuski, Q.C. and Amanda Quayle, Q.C. for Atwater Investment LP (in person) Shaunt Parthev, Q.C. and Janelle Souter for Ituna Investment LP (by telephone) Linda Plumpton and Winston Gee for Manufacturer’s Life Insurance Company (by telephone) Munaf Mohamed and Chirstine Viney for BMO Life Assurance Company (by telephone) Tricia Jackson and David Outerbridge for Industrial Alliance Insurance and Financial Services Inc. (by telephone) The Court [ 1 ] Canadian Life and Health Insurance Association Inc. [CLHIA] applies under Rule 17 of The Court of Appeal Rules for leave to intervene in three appeals and three cross-appeals pending before the Court (indexed as CACV3407, CACV3408 and CACV3409).

For the reasons that follow, we dismiss CLHIA’s application.

[2] In brief background, each appellant applied separately to the Court of Queen’s Bench for declaratory relief, seeking aninterpretation of a universal life insurance policy [ULIP] issued by the respondent insurer that would allow the appellant insured discretionto invest certain funds under the terms of the ULIP.

The same Queen’s Bench judge heard all three applications sequentially and renderedhis decisions in Ituna Investment LP v Industrial Alliance Insurance and Financial Services Inc., 2019 SKQB 75, Mosten Investment LP vManufacturers Life Insurance Company, 2019 SKQB 76, and Atwater Investment LP v BMO Life Assurance Company, 2019 SKQB 77[UL QB Decisions]. In each UL QB Decision, the Chambers judge held the ULIP did not permit the insured to invest funds as the insuredhad sought.

That is, in each case, the Chambers judge dismissed the insured’s application for declaratory relief. [3] While the issues raised in this Court are relatively common across all three appeals and all three cross-appeals, there arenuances to each issue in each appeal and cross-appeal. In broad terms, the three appellants allege reversible error on the part of theChambers judge in his handling of certain evidence and in his

interpretation of the ULIPs. In the cross-appeals, the respondents allege theChambers judge erred by excluding relevant evidence and in his

interpretation of The Saskatchewan Insurance Regulations, 2003, RRS cS-26 Reg 8 [Regulations], as they pertain to ULIPs. [4] It is well-settled that the factors that inform the merit of an intervenor application under Rule 17 include those adopted in R vLatimer (1995), (SK CA), 128 Sask R 195 (CA) at 196–197 (citing the

summary in Sopinka and Gelowitz, TheConduct of an Appeal (Toronto: Butterworths, 1993) at 187–188): In considering an application to intervene, appellate courts will consider: (1) whether the intervention will unduly delay the proceedings;(2) possible prejudice to the parties if intervention be granted; (3) whether the intervention will widen the lis between the parties; (4) theextent to which the position of the intervener is already represented and protected by one of the parties; and (5) whether the interventionwill transform the court into a political arena.

As a matter or discretion, the court is not bound by any of these factors in determining anapplication for intervention but must balance these factors against the convenience, efficiency and social purpose of moving the caseforward with only the persons directly involved in the lis. [footnotes omitted] See Brand v College of Physicians and Surgeons (Sask.) (1990), (SK CA), 86 Sask R 18 (CA) [Brand]; R v Daniels(No. 1) (1991), (SK CA), 92 Sask R 293 (CA); Canada (Attorney General) v Saskatchewan Water Corp. (1991), (SK CA), 92 Sask R 295 (CA); Owens v Saskatchewan (Human Rights Commission), 2005 SKCA 103; Hoffman v MonsantoCanada Inc., 2006 SKCA 132, 289 Sask R 32; Whatcott v Saskatchewan Association of Licensed Practical Nurses, 2007 SKCA 49;Merchant Law Group v Thompson, 2007 SKCA 83, 304 Sask R 227; Whatcott v Saskatchewan (Human Rights Tribunal), 2008 SKCA114; see also Sopinka and Gelowitz, The Conduct of an Appeal, 4th ed (Toronto: LexisNexis, 2018); Stuart J.

Cameron, Civil Appeals inSaskatchewan: The Court of Appeal Act & Rules Annotated, 1st ed (Regina: Law Society of Saskatchewan Library, 2015).

The factorsidentified in R v Latimer have also informed grants of intervenor status in cases such as Reference re Marriage Commissioners AppointedUnder The Marriage Act, 2011 SKCA 3, 327 DLR (4th) 669, Saskatchewan v Saskatchewan Federation of Labour, 2013 SKCA 43, 361DLR (4th) 132; Reference re Greenhouse Gas Pollution Pricing Act, 2019 SKCA 40, [2019] 9 WWR 377. [5] As with any discretionary power under The Court of Appeal Rules, the power to grant leave to intervene falls to be exercisedas the Court thinks fit, having regard for the criteria that bear upon the proper exercise of that power.

None of the factors identified in R vLatimer are determinative. Moreover, it is not a question of mathematically tolling-up those factors weighing in favour and against thegrant of leave to intervene.

The fact a non-party has an interest that may be affected by an appeal is not determinative of the question ofleave to intervene (Brand). [6] We have, accordingly, considered CLHIA’s application to intervene and its arguments in the context of the relevant criteria.We have had the benefit of reviewing well-prepared briefs of law and argument on the merit of CLHIA’s application for leave to interveneand hearing the oral submissions of counsel for CLHIA and for the parties.

We have also reviewed the UL QB Decisions, the notices ofappeal therefrom, and the facta filed in these matters. [7] On this basis, we acknowledge there are factors that weigh in favour of granting CLHIA leave to intervene in the appeals andcross-appeals. CLHIA has made clear its interest in these matters. Further, we are drawn to its argument that resolution of the issues in theappeals, and, in a different way, in the cross-appeals, has the potential to set a precedent for the broader insurance industry. ULIPs arecommon contracts in the insurance industry.

The appeals put at issue whether the Chambers judge took the proper approach to theinterpretation of insurance contracts in light of Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633, LedcorConstruction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 SCR 23, and Sabean v Portage La Prairie MutualInsurance Co., 2017 SCC 7, [2017] 1 SCR 121. The cross-appeals engage questions of

interpretation of a legislative instrument thataffects other insurers. For these reasons, the issues in the appeals and cross-appeals may be said to transcend the lis between the parties intheir implications. [8] As to the question of delay, on July 18, 2019, Chief Justice Richards set aside two-and-a-half hearing days in January 2020 forthese matters. He ordered the appellants to file their appeal books and facta before September 5, 2019, with the respondents to file theirfacta and cross-appellant facta on or before October 15, 2019.

He ordered the cross-respondents to file their facta on or before November29, 2019, with any cross-appeal reply facta to be filed before December 16, 2019. CLHIA filed its application seeking leave to interveneon November 12, 2019 and we heard the application on December 19, 2019.

CLHIA proposes to file a 20-page factum and seeks a total of20 minutes in oral argument before the panel at the end of the third appeal to be heard. [9] In our assessment, it was reasonable for CLHIA to wait until the respondent insurers had filed their principal facta in theappeals and cross-appeals before applying for leave to intervene.

By doing so, CLHIA had the opportunity to review and consider theparties’ principal arguments in the appeal and cross-appeal and to isolate what it could contribute by way of perspective or argumentbefore it decided to seek leave to intervene in these matters. [10] An intervenor factum necessarily adds to the volume of materials filed in an appeal. While there is no entitlement to do so, theappellants in these matters have indicated they intend to file facta in reply to an intervenor factum, if leave were granted.

In addition, thethree matters are scheduled to be heard back-to-back-to-back in just under a month, with seasonal holidays and year-end obligationsinterposed between now and then. Nonetheless, we are satisfied CLHIA has brought its application within sufficient time to permit itsfavourable determination without causing a delay in the hearing of the appeals and cross-appeals.

[ 11 ] Further, we are not concerned that CLHIA’s intervention would prejudice the appellants. While the appellants would expend additional time and effort to respond to CLHIA’s arguments, prejudice of that nature may be addressed by an appropriate order for costs against the intervenor. [ 12 ] We are also satisfied that any risk the lis would be widened could be addressed by an appropriate form of order. We note in this context that CLHIA does not seek leave to adduce new evidence. [ 13 ] We are, nonetheless, not persuaded to grant CLHIA leave to intervene. These appeals relate to a private dispute.

The core focus of each appeal is on the ULIP in question in that appeal and the legal questions involving the factual matrix that pertains to its

interpretation. The CLHIA did not file a draft factum. Nor did it otherwise identify with sufficient clarity an argument or perspective on the law or the facts that will not be well and fully represented by the respondent insurers. [ 14 ] In this context, we note there was no suggestion that CLHIA is not aligned in interest with the respondent insurers. The respondent insurers are, after all, members of CLHIA and, as we are given to understand, there is some overlap among the individuals involved in the corporate governance of CLHIA and of one or more of the respondents.

Further, the respondents in these matters are experienced, sophisticated litigants who are well-grounded in the practices of the insurance industry and their able counsel are well-versed in the principles of insurance law and of contractual and statutory

interpretation. We are certain the respondent insurers will fully research, prepare and present their oral arguments. We are not persuaded by the materials or argument in this application that CLHIA would add anything meaningful to the respondents’ arguments, as opposed to simply adding to the chorus. [ 15 ] As an aside, it would be helpful if prospective intervenors filed a draft factum as part of the materials supporting their application for leave to intervene. A draft factum may serve more than one purpose in an application of this nature.

For example, with regard to delay, it shows that the proposed intervenor is ready and able to proceed without interrupting the scheduled appeal hearing or unduly inconveniencing the parties or the Court. More importantly, a draft factum clarifies what the applicant proposes to contribute to the appeal. [ 16 ] The onus is on the non-party applicant under Rule 17 to make out a case as to why the Court should exercise its discretion in favour of intervention.

With the greatest respect to the undoubted interest and expertise of CLHIA and its counsel, we are not satisfied it has done so. [ 17 ] For these reasons, we dismiss the application by CLHIA for leave to intervene in these matters. We make no order as to costs. “Caldwell J.A.” Caldwell J.A. “Barrington-Foote J.A.” Barrington-Foote J.A. “Tholl J.A.” Tholl J.A.