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
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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