The intervenor's claims therefore have not only common questions of fact and law with the main action, but actually
substantially identical questions of fact and law with the main action.
His expertise was requested on the
question of when different securities, and in particular, different ETFs, might be considered
substantially identical for purposes of the wash sale rule.
This test is
identical to that applied on an application under Rule 9 - 5 (1)(a) and, as a result, it has been held that a Third Party Notice should only be set aside if there is no serious
question or issue to be determined, the
question or issue raised by the Third Party Notice is not
substantially the same as a
question or issue in the original action or the
question or issue should not properly be determined in the original action: Northmark Mechanical Systems Inc. v. King (Estate), [2009] B.C.J. No. 1812, 2009 BCSC 1237.