Williams v. Mutual Life, (2003) 170 O.A.C. 165 (CA)

• Judge: McMurtry, C.J.O., Catzman and Rosenberg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 08, 2003
• Jurisdiction: Ontario
• Citations: (2003), 170 O.A.C. 165 (CA);2003 CanLII 48334 (ON CA);226 DLR (4th) 112;47 CCLI (3d) 43;[2003] OJ No 1160 (QL);121 ACWS (3d) 1001;170 OAC 165

Williams v. Mutual Life (2003), 170 O.A.C. 165 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. AP.030

Sehdev Kumar (appellant) v. The Mutual Life Assurance Company of Canada and Prudential Assurance Company Limited (respondents)

(C37858)

Indexed As: Williams v. Mutual Life Assurance Co. of Canada et al.

Ontario Court of Appeal

McMurtry, C.J.O., Catzman and Rosenberg, JJ.A.

April 8, 2003.

Summary:

In two separate proceedings (one reported [2000] O.T.C. 751), motions judges refused to certify as class actions claims for negligent misrepresentation arising from the sale of "premium offset" participating whole life insurance policies. The applicants appealed. The appeals were heard together.

The Ontario Divisional Court, in a judgment reported (2001), 152 O.A.C. 344, dismissed the appeals. The claims were "intrinsically individualistic", involving representations to some clients by some of the hundreds of agents who sold tens of thousands of policies. The motions judges were correct in declining certification where there was no identifiable class and no common issues. One of the applicants appealed.

The Ontario Court of Appeal dismissed the appeal.

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) - A motions judge refused to certify as a class action claims for negligent misrepresentation arising from the sale of "premium offset" or "vanishing premiums" participating whole life insurance policies - The Divisional Court agreed where the claims were "intrinsically individualistic", involving representations to some clients by some of the hundreds of agents who sold tens of thousands of policies - The Ontario Court of Appeal held that certification was correctly denied - Assuming an identifiable class, any proposed common issue failed to meet the requirements that the issue be necessary to the resolution of each class member's claim and a substantial ingredient of each claim - The court agreed that "while the theories of liability for each class member can be phrased commonly the actual determination of liability for each class member can only be made upon an examination of the unique circumstances with respect to each class member's purchase of a policy" - Even if there was a common issue, a class action was not the preferable means of resolving the common issues - The court stated that, inter alia, "resolution of the proposed common issue ... would contribute little, if anything, to the resolution of each class member's claim" - See paragraphs 40 to 62.

Practice - Topic 210.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Procedure - General - The Ontario Court of Appeal stated that "I can see no reason in principle why the motions judge cannot modify the definition of the class or the common issues if the judge is of the view that such modification is required to accord with the [Class Proceedings] Act. ... While I would not go so far as to suggest that there is a duty on the motions judge to modify the definitions, the class or the common issue, it is certainly open to the judge to do so." - See paragraphs 30 to 31.

Cases Noticed:

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 20].

Carom et al. v. Bre-X Minerals Ltd. et al. (1999), 46 O.R.(3d) 315 (Div. Ct.), revd in part (2000), 138 O.A.C. 55; 51 O.R.(3d) 236 (C.A.), refd to. [para. 22].

Anderson et al. v. Wilson et al. (1997), 25 O.T.C. 204; 32 O.R.(3d) 400 (Gen. Div.), varied (1998), 107 O.A.C. 274; 37 O.R.(3d) 235 (Div. Ct.), varied (1999), 122 O.A.C. 69; 44 O.R.(3d) 673 (C.A.), refd to. [para. 30].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279, refd to. [para. 30].

Dabbs v. Sun Life Assurance Co. of Canada, [1998] O.T.C. Uned. 269; 40 O.R.(3d) 430 (Gen. Div.), refd to. [para. 33].

Rumley et al. v. British Columbia, [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1, refd to. [para. 34].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al. (2001), 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 201 D.L.R.(4th) 385 (S.C.C.), refd to. [para. 44].

Western Canadian Shopping Centres Inc. v. Bennett Jones Verchere - see Western Canadian Shopping Centres Inc. et al. v. Dutton et al.

Mouhteros v. DeVry Canada Inc. (1998), 70 O.T.C. 138; 41 O.R.(3d) 63 (Gen. Div.), refd to. [para. 53].

Gariepy et al. v. Shell Oil Co. et al., [2002] O.T.C. 459 (Sup. Ct.), refd to. [para. 56].

Statutes Noticed:

Class Proceedings Act, S.O. 1992, c. 6, sect. 5, sect. 6 [para. 29].

Counsel:

Paul J. Pape, for the appellant;

F. Paul Morrison and Dana M. Peebles, for the respondents.

This appeal was heard on November 5-6, 2002, before McMurtry, C.J.O., Catzman and Rosenberg, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Rosenberg, J.A., and released on April 8, 2003.