David Barrie Williams

Following a prior trial and a partial appeal, the court conducted a rehearing to determine the appropriate remedy in a certified class proceeding concerning participating account transactions and an unlawful pre‑paid expense asset used by life insurance companies.

The Court of Appeal had upheld the finding of illegality but directed the trial judge to determine the monetary amounts required to unwind the transactions and restore funds to participating policyholder accounts.

The central disputes concerned the calculation of merger synergy deductions, whether historical amortization charges should be deducted when determining the benefit received by participating accounts, the interpretation of a 6.91% return provision, and the appropriate “effective date” for unwinding the transactions.

The court concluded that amortization expenses since 1997 must be deducted to reflect the “no contribution/no benefit” principle and interpreted the Court of Appeal formula as adding, not subtracting, the 6.91% return to the participating accounts.

The court fixed December 31, 2011 as the effective date and ordered that $284,675,000 be paid to the participating accounts, with cancellation of the pre‑paid expense asset and related amortization charges.

The plaintiffs, representing a class of Barbados participating policyholders, brought an action against Manulife following the transfer of their policies to Life of Barbados (LOB) in 1996 and Manulife's subsequent demutualization in 1999.

The plaintiffs claimed that Manulife owed them a duty of care and a fiduciary duty to protect their rights to participate in the demutualization.

The court found that while it was reasonably foreseeable that Manulife would demutualize, no duty of care or fiduciary duty was owed to the plaintiffs because their rights as policyholders were lawfully extinguished by the transfer agreement, which was approved by regulators in Barbados and Canada.

The action was dismissed.

The appellant appealed a finding of contempt for failing to comply with a court order requiring him to transfer 'any and all other evidence or documents in his possession' to a supervising solicitor.

The appellant had retained copies of the materials and later disseminated them.

The Court of Appeal dismissed the appeal, holding that the retained copies fell within the scope of the order.

The Court also rejected the argument that the appellant could not be in contempt of an order that was later set aside, noting that the order had to be complied with while it was in force.

In a contempt proceeding arising within complex commercial litigation involving egg producers, the court addressed scheduling and procedural directions for the penalty and costs phase following a prior finding of contempt.

The responding party sought to finalize penalty before an upcoming appeal to avoid fragmented appellate proceedings.

The court considered appellate guidance discouraging fragmented appeals where the contempt disposition had not yet been completed.

The court scheduled the penalty hearing and established timelines for service of supplementary materials and potential intervention motions under the Rules of Civil Procedure.

Directions were also provided regarding the possibility of viva voce evidence at the penalty hearing.

The representative plaintiffs in a certified class action regarding the Canada Life Canadian Employees' Pension Plan moved for approval of a settlement agreement, a variation of trust, and class counsel fees.

The claims involved the ownership of surplus assets, partial wind-ups, and the payment of plan expenses from the fund.

The settlement provided an estimated $54 million in financial benefits to class members, including surplus distribution and contribution holidays.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting the legal risks associated with the claims.

The court also approved the variation of the pension trust under the Variation of Trusts Act and the rule in Saunders v. Vautier, distinguishing the Supreme Court's decision in Buschau because the employer supported the variation.

Finally, the court approved class counsel fees of approximately $4.8 million as fair and reasonable given the results achieved and the risks undertaken.

Two competing law firms brought motions for carriage of a proposed securities class action against Armtec Infrastructure Inc. and its directors and underwriters, alleging misrepresentations in a prospectus and press release.

The court evaluated the competing actions based on the nature and scope of the causes of action, the proposed class definitions, the named defendants, and the representative plaintiffs.

The court granted carriage to the Simmonds plaintiffs, finding their approach to the class definition and damages to be simpler and more cohesive, and their representative plaintiffs to possess significant business acumen.

The competing Locking action was stayed.

Following an appeal where the appellants achieved substantial but not total success, the Court of Appeal for Ontario issued a costs endorsement.

The appellants did not seek costs, and the court determined the respondents were not entitled to costs.

Consequently, the court made no order as to costs.

The appellants, life insurance companies, appealed a trial judgment finding that transactions involving their participating accounts to finance a corporate acquisition breached the Insurance Companies Act.

The Court of Appeal upheld the trial judge's findings that the transactions breached the Act by failing to comply with generally accepted accounting principles, improperly allocating expenses, and constituting prohibited transfers.

However, the Court allowed the appeal in part regarding the remedy, finding that the trial judge's order to return $390 million to the participating accounts via litigation trusts was overly broad and akin to an oppression remedy not available under the Act.

Instead, the Court ordered the transactions unwound as of the present, with adjustments for expense savings already received.

The appellants appealed a decision certifying two actions as class proceedings on behalf of participating life insurance policyholders.

The appellants argued the motions judge erred in finding a class proceeding was the preferable procedure under s. 5(1)(d) of the Class Proceedings Act, asserting that the Insurance Companies Act provided adequate alternative remedies for stakeholders.

The Divisional Court dismissed the appeal, holding that the motions judge made no error in principle and reasonably concluded that a class proceeding offered juridical advantages, including case management, access to justice through contingency fees, and judicial supervision of remedies.

Following the dismissal of the appellants' appeal of a refusal to certify a class proceeding regarding pension plan amendments, the respondents sought costs.

The appellants argued that no costs should be awarded, relying on the public interest and novel point of law provisions under the Class Proceedings Act, 1992.

The Divisional Court found no special circumstances to depart from the general rule that costs follow the event.

Applying the overriding principle of reasonableness, the court awarded costs to the respondents, including disbursements for a responding report on a fresh evidence motion.

The defendants appealed an order dismissing their motion to set aside a default judgment.

The motion judge had found the defendants moved expeditiously and adequately explained their default, but dismissed the motion solely because the defence was not adequately fleshed out in the affidavit.

The Court of Appeal allowed the appeal, finding the motion judge erred by treating the principles for setting aside default judgments as rigid preconditions and failing to consider the balance of prejudice between the parties.

The appellants appealed the decision of the motion judge refusing to certify their proposed class proceedings against the Ontario Northland Transportation Commission regarding amendments to its pension plan.

The appellants alleged the pension plan was an irrevocable trust and the amendments constituted a breach of trust.

The Divisional Court dismissed the appeals, finding that the motion judge made no errors of law, no palpable and overriding errors of fact, and that her conclusions on mixed fact and law regarding common issues, preferable procedure, and representative plaintiffs were reasonable and entitled to deference.

The appellant obstetrician appealed a trial judgment finding him liable for negligence in the delivery of the respondent's child.

The trial judge found that the appellant fell below the standard of care by improperly using forceps, which caused injuries to the respondent's uterus, and by negligently suturing the injuries, which occluded her ureter.

The Court of Appeal dismissed the appeal, holding that the trial judge made no palpable and overriding errors in his factual findings and properly relied on the evidence of the respondents' expert.

The respondent, a diabetic, developed a foot sore and consulted the appellant physician, who failed to examine the foot or arrange follow-up care.

The sore became infected, leading to a below-the-knee amputation.

The trial judge found the physician negligent and held that the negligence denied the respondent a 'window of opportunity' to save her leg.

On appeal, the Court of Appeal reversed the decision, finding that the respondent failed to prove causation on a balance of probabilities.

The medical evidence established only a loss of a chance to save the leg, which is not compensable in medical malpractice cases.

The appellant, an Ontario cattle dealer, challenged the obligation to pay a $2.25 per head license fee to the Ontario Cattlemen's Association on sales to an American slaughterhouse.

The appellant argued the fee was an ultra vires indirect tax or an invalid direct tax, and that it should not apply to export sales.

The Court of Appeal upheld the applications judge's finding that the charge was a properly authorized fee, not a tax.

The Court also held that the regulation should not be read down to exclude out-of-province sales, as the fee's purpose is to fund an association that benefits all Ontario cattlemen, and the extra-territorial effect is minimal.

The appellant was catastrophically injured in a motor vehicle accident while a passenger in an uninsured vehicle.

He sought indemnity from the respondent insurer under a policy issued to a man with whom he lived in a de facto parent-child relationship.

The motions judge granted summary judgment dismissing the claim, finding the appellant was neither a 'person insured under the contract' under s. 265 of the Insurance Act nor a 'relative' under the OPCF 44 endorsement.

The Court of Appeal allowed the appeal, holding that the definition of 'insured' in s. 224(1) applies to s. 265, and that 'relative' in the endorsement should be interpreted liberally to include a de facto parent-child relationship, provided dependency is proven at trial.