In the latest chapter of the Fantl v. Transamerica Life Canada case, the Ontario Court of Appeal has held that access to justice concerns permit a class action to be certified as a preferable procedure, despite the existence of significant individual issues. The appellate decision upheld the prior decision of the Divisional Court, which in turn had set aside in part the lower court certification decision. The proposed class was composed of investors in the defendant's fund, encompassing 53 different insurance contracts containing to various degrees an impugned representation speaking to the performance of the fund. The representative plaintiff advanced a claim of negligent misrepresentation.
At first instance, Justice Perell had held that the individual issues of reliance, causation and damages would "overwhelm or subsume" the common issues. However, following the 2013 Supreme Court decision in AIC Limited v. Fischer, Strathy C.J.O., writing for the Court of Appeal, held that the claimants faced barriers to justice, since proceeding individually would be uneconomic. In addition, a common issues trial on questions of whether the representation was in fact misleading, and the existence of a duty of care, would advance the claims of class members notwithstanding the fact that reliance, causation and damages would require individual assessments.
The decision reinforces the general rule that negligent misrepresentation claims are not particularly well suited to class action treatment, yet also illustrates that in certain cases the Court will look to the issue of access to justice to remedy that weakness.