Ontario Court of Appeal allows appeal of order dismissing representative plaintiffs’ certification motion in proposed class action lawsuit in respect to sale of life insurance policies.

Insurance law – Life insurance – Misrepresentation – Interpretation of policy – Class actions – Certification – Limitation periods – Practice – Summary judgments – Appeals

Fehr v. Sun Life Assurance Co. of Canada, [2018] O.J. No. 4513, 2018 ONCA 718, Ontario Court of Appeal, September 5, 2018, G.R. Strathy C.J.O., C.W. Hourigan and B. Miller JJ.A.

The Ontario Court of Appeal heard a number of appeals relating to a proposed $2.5 billion class action lawsuit concerning more than 230,000 life insurance policies sold by Metropolitan Life Insurance between 1985 and 1998. In 1998, MetLife sold its Canadian business to Mutual Life, eventually becoming Sun Life Assurance Company of Canada.

The plaintiffs commenced the proposed class action in 2010 alleging misrepresentation in the sale of the policies and breach of contractual and other duties relating to premiums and fees charged to policy holders.

When the plaintiffs brought a motion to certify the proceeding as a class action, Sun Life brought a motion for summary judgment asking that the claims be dismissed as time barred. The motions judge dismissed the motion for certification, found that the misrepresentation claims were barred by the applicable limitation periods, that certain inchoate claims were premature, and the breach of contract claims were barred for certain time periods but not others. The motions judge awarded Sun Life $1 million in costs of the certification and summary judgment motions on a partial indemnity basis.

The plaintiffs appealed the motions judge’s order dismissing their motion for certification and sought leave to appeal the costs order. The plaintiffs also appealed the order on summary judgment insofar as it dismissed their individual claims for negligent misrepresentation and some of the breach of contract claims as time barred or premature. Sun Life appealed part of the order on summary judgment with respect to the applicable limitation period to the breach of contract claims.

The Court of Appeal dismissed the plaintiffs’ appeal as it related to the refusal to certify the misrepresentation common issues and some related common issues, but allowed the appeal as it related to the refusal to certify the breach of contract common issues. The Court of Appeal also allowed the appeal with respect to two other issues including whether Sun Life is liable for the actions of its predecessors and the allegations of fraudulent concealment as they apply to the limitation period applicable to the breach of contract claims. Finally, the Court of Appeal allowed the plaintiffs’ appeal from the order granting summary judgment dismissing their individual claims and dismissed Sun Life’s appeal from the order dismissing part of its summary judgment motion. In the result, the representative plaintiffs were entitled to pursue their claims for misrepresentation, either individually or by way of joinder in individual actions, and the defendants would be entitled to raise limitation defences in that context. The Court of Appeal determined that the application of the limitation period to the individual plaintiffs’ breach of contract claims would be determined if necessary after the trial of the common issues.

This case was first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter.