Court of Appeal for Ontario

Citation: Fantl v. Transamerica Life Canada, 2013 ONCA 580

Date: 20130930

Docket: C57067

Before: Laskin, Rosenberg and Goudge JJ.A.

Between

Joseph Fantl

Appellant/Plaintiff

and

Transamerica Life Canada

Respondent/Defendant

Counsel:

David F. O’Connor, J. Adam Dewar, for the appellant

Mary Jane Stitt and Doug McLeod, for the respondent

Heard: September 16, 2013

On appeal from the order of Justice Paul Perell of the Superior Court of Justice, dated April 18, 2013.

ENDORSEMENT

[1] The issues in this case were whether the material in the information folder and other surrounding circumstances created either an implied term as to the performance of the Can-Am Fund or a collateral contract or warranty to found actions for breach of contract. There was no dispute that the representations in the folder disclose causes of action in negligent misrepresentation. We agree with the thorough reasons of Perell J. and would dismiss the appeal. In light of the governing statutory scheme and the contents of the material, especially the warning on the information folders, it is plain and obvious that there are no causes of action based on breach of contract, other than for the five contracts that contained the express performance representation.

[2] We would also dismiss the application for leave to appeal costs largely for the reasons of Perell J. He explained at length why the normal order that costs follow the event should not apply in this case and rather that all the costs be in the cause. The applicant submits that the motion judge misapprehended the facts in relying on the fact that the applicant’s success was limited to claims for certification that were unopposed. We do not agree. In that part of the judgment the motion judge was simply setting out the submissions of the parties. There is no indication that he relied upon this submission in concluding that costs be in the cause. The motion judge had been dealing with this case for over four years. He had a full appreciation of the issues. His decision on costs is fair to both parties and reasonable in the circumstances.

[3] If the parties are unable to agree on costs of the appeal, they may make brief written submissions within 30 days of receiving these reasons.

“John Laskin J.A.”

“M. Rosenberg J.A.”

“S.T. Goudge J.A.”