In the recent decision of Fantl v Transamerica Life Canada (“Fantl”)[1], the Ontario Court of Appeal unanimously dismissed the appeal of the Divisional Court’s decision and confirmed the certification of class claims in negligent misrepresentation, noting that it was time for class actions to “deliver on their promise of access to justice”[2] when it comes to individual issues.

Background

The matter involved a class action lawsuit against Transamerica Life Canada advancing a claim for negligent misrepresentation on behalf of investors in the defendant’s fund. The alleged misrepresentations arose from “best efforts” statements contained in information folders provided to class members pursuant to the OntarioInsurance Act. The claim concerned 53 different insurance contracts – five of which contained an express statement as to “best efforts” and 48 of which did not.

Certification Decision

The certification judge, while certifying the action for breach of contract based on the five contracts with express “best efforts” statements, declined to certify the negligent misrepresentation claim based on the information in the folders which accompanied the remaining contracts lacking express statements. He found that two, or at best three, of the five elements of negligent misrepresentation could be common issues. As a result, the issues of reliance and damages would have to be dealt with in extensive individual trials, clearly indicating that a class action proceeding was not the preferable procedure for the claims in negligent misrepresentation.

Divisional Court Decision

The Divisional Court reversed the certification judge’s decision, noting that the judge did not have the benefit of the reasoning in AIC Limited v Fischer[3]in which the Supreme Court of Canada made extensive comments on the application and analysis of access to justice considerations that should be considered at the certification stage. Applying the framework from Fischer, the Divisional Court determined that a class proceeding would function to eliminate the economic bar to access to justice in this instance, especially given that a standalone claim was not financially viable, therefore leaving no reasonable alternative with which to pursue the claim. The fact that a consistent representation in a statutorily required document was the basis of the misrepresentation claim militated towards a resolution of the issues of reliance and damages given their relatively simplistic nature.

The Decision

The Court of Appeal dismissed the appeal, relying primarily on the reasons given by the Divisional Court. While a certification judge’s decision is certainly deserving of deference, the effect of the subsequent release of the Fisher decision functioned to fetter the deference that would normally be afforded. The Court of Appeal agreed with the Divisional Court in that the claim was not one that was reasonably worth litigating in Superior Court given the likely costs, which would function to form a serious bar with regard to access to justice that could not be mitigated by alternative procedural approaches such as joinder.

The Court noted that the real issue was whether the action would be “a fair, efficient and manageable proceeding”[4] and that the decision was not, as was suggested by the respondents, at odds with the Court’s decision in Musicians’ Pension Fund of Canada (Trustees of) v. Kinross Gold Corporation.[5] While in Kinrossthe proposed class did not meet the criteria for preferable procedure for secondary market misrepresentation claims under the Securities Act or at common law because of the individual issues associated with the reliance, causation and damages, the Court found that this case was distinguishable for several reasons.  Unlike securities cases where there is a clear need to prove reliance with investor-specific details, making such matters poor candidates for certification, this matter involved a “single common written representation made in the English language materials”[6] to every class member who received it, greatly reducing if not eliminating the need for individual inquiries. Additionally, the statutory misrepresentation claims in the Kinrossmatter had no reasonable prospect of success at trial, a consideration which did not apply in this context. As well, the breach of contract claims in this matter would function to overlap on many issues in such a manner that it would be both economical and expeditious for the proceeding, and the resolution of the common issues would significantly advance the class claims.

Takeaway

The key thread of the Court’s decision was the principle of access to justice and its correlation to considerations of efficiency and economy, both financial and judicial. Although negligent misrepresentation claims raise individual issues often making them ill-suited to class actions, access to justice principles may outweigh this problem. The Court noted that, “[i]f class actions are to deliver on their promise of access to justice it is perhaps time to test some of the assumptions made about the ‘manageability’ of the individual issues stage of a class action.”[7]