Mary Jane Stitt

Following a class action certification motion where the plaintiff achieved certification for five insurance policies but the defendant successfully struck claims regarding 48 other policies, both parties sought costs payable forthwith.

The court held that because success was divided—with the plaintiff achieving procedural success and the defendant achieving substantial substantive success—the normal rule of awarding costs to the successful party did not apply.

The court ordered the costs of the certification motion to be in the cause.

The plaintiff sought certification of a proposed class action against an insurer relating to the performance of the Can‑Am segregated fund offered through multiple insurance contracts.

The plaintiff alleged breach of express or implied contractual terms requiring the fund to replicate the S&P 500 on a best‑efforts basis, as well as negligent misrepresentation in pre‑contract information folders.

The court held that only five insurance contracts contained an express “best‑efforts” term capable of supporting a breach of contract claim, and claims based on implied terms or collateral contracts were legally untenable due to statutory entire‑agreement provisions and the non‑contractual status of information folders.

Although negligent misrepresentation disclosed a cause of action, the court found that individual reliance, causation, and damages issues overwhelmed the common issues such that a class proceeding was not the preferable procedure.

Certification was therefore granted only for breach of express contractual terms for the five specified policy forms, subject to exclusion of statute‑barred claims.