Court of Appeal for Ontario

CITATION: Fantl v. Transamerica Life Canada, 2013 ONCA 507

DATE: 20130802

DOCKET: M42716 (C57067)

Lauwers J.A. (In Chambers)

BETWEEN

Joseph Fantl

Plaintiff (Appellant/ Responding Party)

and

Transamerica Life Canada

Defendant (Respondent/ Moving Party)

Proceeding under the Class Proceedings Act 1992, S.O. 1992, c. 6

Mary Jane Stitt, for the moving party

David F. O'Connor and J. Adam Dewar, for the responding party

Heard: August 1, 2013

On a motion for directions respecting an appeal from the order of Justice Paul Perell of the Superior Court of Justice, dated April 18, 2013, with reasons reported at 2013 ONSC 2298.

ENDORSEMENT

[1] The moving party/respondent seeks directions in this class action appeal.

[2] As the result of this court’s decision in Cavanaugh v. Grenville Christian College, 2013 ONCA 139, [2013] O.J. No. 1007, the appellant launched two appeals, one to this court and the other to the Divisional Court under s. 30 of the Class Proceedings Act. The appeal to this court in respect of paragraph 1 of the order is set to be argued on September 16, 2013. The Divisional Court motion for leave to appeal with respect to the balance of the order is set to be argued on September 25, 2013.

The Appeal to this Court

[3] The motion judge certified the class action on a much more limited basis than was sought by the appellant. The first paragraph of his order provides:

This court orders that the claims and the causes of action for breach of implied terms of contract and breach of collateral warranty or collateral contract set out in the second fresh as amended statement of claim (“claim”) are hereby struck and dismissed.

[4] The motion judge held that the listed claims were untenable at law and therefore did not meet the test in s. 5(1)(a) of the Class Proceedings Act. The appellant appeals this dismissal decision to this court.

[5] The appellant challenges the motion judge’s decision that the “information folder” is not part of the insurance contract between class members and the respondent Transamerica. The information folder provides that: “The goal of the Can-Am fund is to replicate, on a best-efforts basis, the performance of the S&P 500 Total Return Index.” That was the provision on which part the appellant wishes to rely as an express contractual term, or as an implied term, a term of a collateral contract or a collateral warranty. The underperformance of the fund appears to be the basis for the damages claim. The appellant also wants to refer to supportive extrinsic evidence that was before the motion judge.

[6] The extrinsic evidence to which appellant wishes to refer in argument consists of marketing manuals used by sales agents for the respondent that purported to define the relevant contract as: “the combination of the IMS II application form, the Summary Information Folder, Policy Form and Notice of Confirmation making up the IMS II contract.” The appellant also wishes to refer to the description of the Can-Am Fund in a document entitled “An Explanation of How the Funds Operate,” which states that:

The Can-Am Fund delivers S&P 500 performance in Canadian dollars. Whatever happens to the S&P 500 Index will happen in the Can-Am Fund. This is what the investor is purchasing.

The Motion for Directions

[7] The moving party/respondent has two complaints on which directions are sought. First, the appeal materials filed by the appellant, without consultation with the respondent or compliance with r. 61.05 of the Rules of Civil Procedure, do not include a number of documents referred to in the Second Fresh as Amended Statement of Claim to which the respondent intends to refer on the appeal. No exhibit book has yet been filed. The respondent agrees that the filings have been deficient and agrees to comply with the rules, so no direction is required.

[8] The moving party’s second complaint is that the appeal book and compendium include the extrinsic evidence, to which the appellant’s factum refers. The moving party seeks an order excluding this extrinsic evidence from the record even though it was in the record before the motion judge, on the basis that on the narrow appeal before this court the evidence is inadmissible. The motion judge’s decision under section 5 (1)(a) of the CPA is analogous to a decision under r. 21.01 (1)(b) on which no evidence is admissible except for documents referred to and incorporated by reference into the pleading.

[9] In response, the appellant refers to two paragraphs of the motion judge’s decision, which he argues are contradictory on the issue of the admissibility of extrinsic evidence:

[123] The case at bar is not one of those cases where it is necessary or preferable to decide whether the plaintiff has a cause of action based on a full evidentiary trial record. This court or any appellate court has all it needs to decide whether Mr. Fantl's claims based on implied terms or collateral contracts are legally tenable.

[156] A statement will be considered to be a collateral warranty only where the evidence discloses that the parties intended or must be taken to have intended that the representation was to form part of the basis of the contractual relations between them: [Citations omitted.]

[10] The appellant argues that the motion judge “erred by making [a] final determination regarding contractual terms…that was properly reserved to the common issues trial judge,” which amounts to “deciding unsettled issues of law and mixed fact and law.” This argument does not strike me as implausible.

[11] In my view, in the circumstances of this case, it would be preferable for the panel hearing this appeal to have before it all of the same material as the motion judge, as is customary. Needless to say, before the panel the parties are free to dispute the admissibility of the evidence in the record. I do not expect that any additional time would be required for the argument of the appeal. I therefore decline to make the order requested.

“P. Lauwers J.A.”