Dabbs v. Sun Life Assurance Co. of Canada, (1998) 113 O.A.C. 307 (CA)

• Judge: Laskin, Charron and O'Connor, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 26, 1998
• Jurisdiction: Ontario
• Citations: (1998), 113 O.A.C. 307 (CA);1998 CanLII 7165 (NS CA);1998 CanLII 7165 (ON CA);41 OR (3d) 97;165 DLR (4th) 482;7 CCLI (3d) 38;[1998] OJ No 3622 (QL);113 OAC 307;27 CPC (4th) 243;82 ACWS (3d) 638

Dabbs v. Sun Life (1998), 113 O.A.C. 307 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. SE.022

Paul Dabbs (plaintiff/respondent/moving party) v. Sun Life Assurance Company of Canada (defendant/respondent) and Jack Maclean (class member/appellant)

(C30326; M22971; M23028)

Indexed As: Dabbs v. Sun Life Assurance Co. of Canada

Ontario Court of Appeal

Laskin, Charron and O'Connor, JJ.A.

September 14, 1998.

Summary:

Dabbs, as representative plaintiff, brought a class action on behalf of 400,000 policy holders who purchased van­ishing premium policies from Sun Life.

The Ontario Court (General Division), in a decision reported [1998] O.T.C. Uned. 269, certified the action as a class proceeding and approved a settlement agreement. Maclean, a class member, sought leave to appeal the decision. Dabbs moved to quash the appeal.

The Ontario Court of Appeal dismissed Maclean's motion, allowed Dabb's motion and quashed the appeal.

Editor's note: for related proceedings in this matter see 50 O.T.C. 396; 48 O.T.C. 391; 44 O.T.C. 351 and 38 O.T.C. 98.

Practice - Topic 209.9

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Class actions - Appeals - Maclean, a class member, appealed a decision certifying the class action and approving a settlement agree­ment - The representative plaintiff sought to quash the appeal, assert­ing that Maclean lacked standing to appeal because he was not a party - The Ontario Court of Appeal quashed the appeal - Only parties had a right to appeal under s. 30(3) of the Class Proceedings Act - Further­more, Maclean had not sought leave to act as a represen­tative party under s. 30(5) - Finally, the court rejected Maclean's asser­tion that a right of appeal existed under s. 6(1)(b) of the Courts of Justice Act since the decision was a final order - Section 30(3) of the Class Proceedings Act took precedence over s. 6(1)(b) of the Courts of Justice Act.

Practice - Topic 209.9

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Class actions - Appeals - A representative plaintiff brought a class action on behalf of 400,000 class members - The trial judge certified the class action and approved a settlement - Maclean, a class member, sought leave to act as a representative party in order to appeal the decision (Class Proceedings Act, s. 30(5)) - The Ontario Court of Appeal denied leave - There was no evi­dence that Maclean would adequately represent the interests of the class by appealing the decision - Courts in three jurisdictions had approved the settlement - Maclean was the only class member who sought to set it aside - A class member's wishes ought not to govern the interests of the entire class - Finally, Maclean could always opt out of the class and pursue his claim in his personal capa­city - See para­graphs 18 to 20.

Practice - Topic 8841

Appeals - Bar of right of appeal - General - [See first Practice - Topic 209.9 ].

Practice - Topic 8893

Appeals - Parties - Standing to appeal - [See both Practice - Topic 209.9 ].

Practice - Topic 8984

Appeals - When appeal available - From final judgment or order - [See first Prac­tice - Topic 209.9 ].

Cases Noticed:

Abdool v. Anaheim Management Ltd. (1995), 78 O.A.C. 377; 21 O.R.(3d) 453 (Div. Ct.), refd to. [para. 6].

792266 Ontario Ltd. v. Monarch Trust Co. (Liquidation) (1996), 94 O.A.C. 384 (C.A.), agreed with [para. 14].

O'Donohue v. Silva et al. (1995), 87 O.A.C. 161; 27 O.R.(3d) 162 (C.A.), refd to. [para. 16].

Statutes Noticed:

Class Proceedings Act, S.O. 1992, c. 6, sect. 30(3) [para. 9]; sect. 30(5) [para. 10].

Court of Justice Act, R.S.O. 1990, c. C-4, sect. 6(1)(b) [para. 12].

Authors and Works Noticed:

Côté, Pierre-André, Construction of Statutes (2nd Ed., 1983), p. 301 [para. 13, footnote 5].

Driedger, Elmer, Construction of Statutes (2nd Ed. 1983), p. 227 [para. 13, foot­note 4].

Counsel:

Michael S. Deverett, for the appellant;

H. Lorne Morphy, Q.C., and Patricia D.S. Jackson, for the respondent, Sun Life;

Michael A. Eizenga and Michael J. Peer­less, for the plaintiff/respondent.

These motions were heard on August 26, 1998, by Laskin, Charron and O'Connor, JJ.A., of the Ontario Court of Appeal. On September 14, 1998, O'Connor, J.A., delivered the following decision for the Court of Appeal.