Paul Winokur

The appellants, representative plaintiffs in a certified class proceeding concerning universal life insurance policies, appealed the dismissal of their motion to amend their statement of claim and add a new common issue regarding an 'Investment Spread Claim'.

The motion judge refused the amendments on the basis that the claim was a new cause of action that was discoverable in 2016 and therefore statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld the motion judge's decision, agreeing that the claim was not captured by existing pleadings, was discoverable based on a 2016 repricing report, and did not engage a rolling limitation period as it involved discrete decisions rather than periodic breaches.

The defendants sought leave to appeal a decision granting the plaintiffs leave to pursue claims under Part XXIII.1 of the Securities Act and certifying the action as a class proceeding.

The plaintiffs alleged the corporate defendant misrepresented its equity market risk by failing to disclose its decision to abandon hedging and reinsurance of guaranteed products.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's conclusions that the plaintiffs had a reasonable possibility of success at trial and that the common law misrepresentation claims were suitable for certification alongside the statutory claims.

The plaintiffs sought leave under s. 138.8 of the Securities Act and certification under the Class Proceedings Act to bring an action against Manulife Financial Corporation and its former executives.

The plaintiffs alleged that the defendants misrepresented the adequacy of Manulife's risk management practices and failed to disclose its massive unhedged exposure to equity market risk prior to the 2008 financial crisis.

The court granted leave, finding a reasonable possibility of success at trial, and certified the action as a class proceeding, certifying seven common issues.