Fantl v. Transamerica Life Canada, 2009 ONCA 377

• Judge: Winkler, C.J.O., Goudge and Simmons, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 06, 2009
• Jurisdiction: Ontario
• Citations: 2009 ONCA 377;(2009), 249 O.A.C. 58 (CA)

Fantl v. Transamerica Life (2009), 249 O.A.C. 58 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. MY.037

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

(C50166; 2009 ONCA 377)

Indexed As: Fantl v. Transamerica Life Canada

Ontario Court of Appeal

Winkler, C.J.O., Goudge and Simmons, JJ.A.

May 7, 2009.

Summary:

Fantl was the plaintiff in a proposed class proceeding against Transamerica Life Canada. Fantl was represented by the law firm of Roy Elliott Kim O'Connor LLP (REKO), where Kim was the supervising lawyer responsible for the matter. REKO dissolved and two new law firms formed, Roy Elliott O'Connor LLP (REO) and Kim Orr Barristers P.C. (KO). Fantl served a Notice of Change of Solicitors appointing REO as his solicitor of record. KO applied to set aside the Notice of Change of Solicitors, to have Kim appointed as lead counsel to the class, to add Seok and Kang as representative plaintiffs and, in the alternative, to replace Fantl.

The Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned. 787, dismissed KO's application. KO appealed.

The Ontario Divisional Court, in a decision reported at 244 O.A.C. 183, dismissed the appeal. KO appealed.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment of representative plaintiff - Fantl was the plaintiff in a proposed class proceeding against Transamerica Life Canada - Fantl was represented by the law firm of Roy Elliott Kim O'Connor LLP (REKO), where Kim was the supervising lawyer responsible for the matter - REKO dissolved and two new law firms formed, Roy Elliott O'Connor LLP (REO) and Kim Orr Barristers P.C. (KO) - Fantl served a Notice of Change of Solicitors appointing REO as his solicitor of record - KO applied to add Seok and Kang as representative plaintiffs and, in the alternative, to replace Fantl - The class action judge dismissed KO's application - The Ontario Divisional Court dismissed an appeal - The Ontario Court of Appeal dismissed a further appeal - Fantl had stepped in to represent the class when the original representative plaintiff had abandoned the role - Fantl had prosecuted the action to the point of settlement - There was no suggestion that he had been less than diligent - See paragraphs 70 to 74.

Practice - Topic 210.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Counsel (incl. choice of, instruction of, etc.) - Fantl was the plaintiff in a proposed class proceeding against Transamerica Life Canada - Fantl was represented by the law firm of Roy Elliott Kim O'Connor LLP (REKO), where Kim was the supervising lawyer responsible for the matter - REKO dissolved and two new law firms formed, Roy Elliott O'Connor LLP (REO) and Kim Orr Barristers P.C. (KO) - Fantl served a Notice of Change of Solicitors appointing REO as his solicitor of record - KO applied to set aside the Notice of Change of Solicitors - The class action judge dismissed KO's application - The Ontario Divisional Court dismissed an appeal - KO appealed again, asserting that under s. 12 of the Class Proceedings Act, a Notice of Change of Solicitors should not have been delivered without first obtaining an order of the court on motion brought by representative plaintiff, so as to have the court approve the new class counsel - The Ontario Court of Appeal dismissed the appeal - It was not necessary for the plaintiff to seek and obtain approval of the court for every decision involving the selection or change of counsel - However, the case management judge charged with responsibility for the supervision of the proceeding should be immediately and directly notified of such a change - Further, if this decision was contested and properly came before the court on motion, the court was well within its jurisdiction to review the plaintiff's decision - See paragraphs 38 to 47.

Practice - Topic 210.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Counsel (incl. choice of, instruction of, etc.) - Fantl was the plaintiff in a proposed class proceeding against Transamerica Life Canada - Fantl was represented by the law firm of Roy Elliott Kim O'Connor LLP (REKO), where Kim was the supervising lawyer responsible for the matter - REKO dissolved and two new law firms formed, Roy Elliott O'Connor LLP (REO) and Kim Orr Barristers P.C. (KO) - Fantl served a Notice of Change of Solicitors appointing REO as his solicitor of record - KO applied to set aside the Notice of Change of Solicitors - The class action judge dismissed KO's application - The Ontario Divisional Court dismissed an appeal - The Ontario Court of Appeal dismissed a further appeal - Once the court's jurisdiction was engaged, any review by the court of a decision as to choice of counsel had to be directed to three factors: "(1) Has the plaintiff chosen competent counsel? (2) Were there any improper considerations underlying the choice made by the plaintiff? and (3) Is there prejudice to the class as a result of the choice?" - In this case, competence of counsel was conceded - There was no evidence of any improper purpose or motive on the part of Fantl in making his decision to retain REO - Finally, there was no evidence of prejudice to the class - See paragraphs 48 to 69.

Practice - Topic 5277.1

Trials - General - Stay of proceedings - Abuse of process - Fantl was the plaintiff in a proposed class proceeding against Transamerica Life Canada - Fantl was represented by the law firm of Roy Elliott Kim O'Connor LLP (REKO), where Kim was the supervising lawyer responsible for the matter - REKO dissolved and two new law firms formed, Roy Elliott O'Connor LLP (REO) and Kim Orr Barristers P.C. (KO) - Fantl served a Notice of Change of Solicitors appointing REO as his solicitor of record - KO applied to set aside the Notice of Change of Solicitors, to have Kim appointed as lead counsel to the class, to add Seok and Kang as representative plaintiffs and, in the alternative, to replace Fantl - The class action judge dismissed KO's application - KO appealed - KO brought a competing action against Transamerica with Kang as the proposed representative plaintiff - The Kang action overlapped significantly with Fantl's action - The Ontario Court of Appeal stayed the Kang action pursuant to the jurisdiction conferred upon the court under s. 134(1) of the Court of Justice Act and s. 13 of the Class Proceedings Act - The Kang action amounted to an abuse of process - The only purpose for bringing a competing action was to provide a platform for a carriage motion to challenge the instant proceeding as the proper proceeding to take the action forward to settlement on behalf of the class - See paragraphs 75 to 80.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 37].

Heron v. Guidant Corp. et al., [2007] O.J. No. 3823 (Sup. Ct.), leave to appeal refused (2008), 232 O.A.C. 366 (Div. Ct.), refd to. [para. 38].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201, refd to. [para. 45].

Parsons et al. v. Canadian Red Cross Society et al. (1999), 103 O.T.C. 161; 40 C.P.C.(4th) 151 (Sup. Ct.), refd to. [para. 51].

Ford v. Hoffman-La Roche (F.) Ltd. (2005), 74 O.R.(3d) 758 (Sup. Ct.), refd to. [para. 51].

Ontario New Home Warranty Program et al. v. Chevron Chemical Co. et al. (1999), 99 O.T.C. 384; 46 O.R.(3d) 130 (Sup. Ct.), refd to. [para. 51].

Cassano et al. v. Toronto-Dominion Bank (2007), 230 O.A.C. 224; 87 O.R.(3d) 401 (C.A.), refd to. [para. 61].

Ward-Price v. Mariners Haven Inc. et al., [2004] O.T.C. 474; 71 O.R.(3d) 664 (Sup. Ct.), refd to. [para. 61].

Vitapharm Canada Ltd. et al. v. Hoffmann-La Roche Ltd., [2000] O.T.C. 877; 4 C.P.C.(5th) 169 (Sup. Ct.), refd to. [para. 79].

Setterington et al. v. Merck Frosst Canada Ltd. et al., [2006] O.T.C. 97; 26 C.P.C.(6th) 173 (Sup. Ct.), refd to. [para. 79].

Ricardo v. Air Transat A.T. Inc. et al., [2002] O.T.C. 205; 21 C.P.C.(5th) 297 (Sup. Ct.), refd to. [para. 79].

Counsel:

Alan J. Lenczner, Q.C., and Naomi Loewith, for the appellant, Kim Orr Barristers P.C.;

Bonnie A. Tough and Jennifer M. Lynch, for the respondent, Joseph Fantl;

Mary Jane Stitt, for the respondent, Transamerica Life Canada.

This appeal was heard on April 6, 2009, by Winkler, C.J.O., Goudge and Simmons, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Winkler, C.J.O., on May 7, 2009.