Fantl v. Transamerica Life Canada, 2016 ONCA 633

• Judge: Strathy, C.J.O., Blair and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 11, 2016
• Jurisdiction: Ontario
• Citations: 2016 ONCA 633;(2016), 351 O.A.C. 326 (CA)

Fantl v. Transamerica Life (2016), 351 O.A.C. 326 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. AU.020

Joseph Fantl (plaintiff/respondent) v. Transamerica Life Canada (defendant/appellant)

(C61284; 2016 ONCA 633)

Indexed As: Fantl v. Transamerica Life Canada

Ontario Court of Appeal

Strathy, C.J.O., Blair and Lauwers, JJ.A.

August 22, 2016.

Summary:

The plaintiff's proposed class action related to an investment fund made available to investors by the defendant through 53 different insurance contracts. Five of the contracts expressly stated that the defendant was using "best efforts" to replicate the performance of the S&P 500 Total Return Index. Policy holders of the other 48 contracts received that statement in an information folder. The plaintiff asserted that the "best efforts" representation was untrue, inaccurate and misleading. A motion judge certified the action for breach of contract for the five contracts that had the express clause, but refused to certify the plaintiff's negligent misrepresentation claim, finding that a class proceeding was not the preferable procedure. The plaintiff appealed.

The Ontario Divisional Court, in a decision reported 331 O.A.C. 358, allowed the appeal, certifying the action for negligent misrepresentation. The court held that not only was a class proceeding the only reasonable way to remove the economic barriers to resolving the claim, it would be a fair, efficient and manageable method. Three of the five elements at issue could be resolved through a common issues trial. At least two of these elements were likely to be highly contentious and would require expert evidence that would also have to be called to prove the claim that had been certified. The common issues trial would significantly advance the litigation without involving the expenditure of large additional judicial resources. The two elements that remained to be established through individual trials (reliance and damages) might be resolved through fairly straightforward mechanisms. Thus, judicial economy and access to justice would be facilitated by certifying the negligent misrepresentation claim. The claim involved behaviour that society had an interest in curbing. Certifying the negligent misrepresentation claim could also help promote behaviour modification. The defendant appealed.

The Ontario Court of Appeal dismissed the appeal, substantially for the reasons given by the Divisional Court.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - See paragraphs 24 to 48.

Counsel:

Mary Jane Stitt and Doug McLeod, for the appellant;

David F. O'Connor and J. Adam Dewar, for the respondent.

This appeal was heard on May 11, 2016, before Strathy, C.J.O., Blair and Lauwers, JJ.A., of the Ontario Court of Appeal. The following decision was released for the court by Strathy, C.J.O., on August 22, 2016.