Court File and Parties

CITATION: Fantl v. Transamerica Life Canada, 2015 ONSC 4977

DIVISIONAL COURT FILE NO.: 395/2013

DATE: 20150824

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JOSEPH FANTL, Applicant/Plaintiff

AND:

TRANSAMERICA LIFE CANADA, Respondent/Defendant

BEFORE: H. Sachs, D.L. Corbett and Gilmore JJ.

COUNSEL: David F. O’Connor and J. Adam Dewer, for the Appellant/Plaintiff

Mary Jane Stitt and Doug McLeod, for the Respondent/Defendant

HEARD: In writing

ENDORSEMENT RESPECTING FORM OF ORDER

The Court:

[1] The parties disagree on one point concerning the form of the order to issue reflecting our decision in this appeal. The plaintiff/appellant argues for language expressly indicating that the class includes recipients of both English- and French-language versions of the documents. The defendant/respondent argues that the scope of the order ought to be restricted to recipients of the English-language version.

[2] We see no merit in the position of the defendant/respondent on this point. No issue was raised before us on the appeal concerning different versions of the documents, and we made no decision on that point. We see no basis in the record to establish that the motions judge was asked to draw such a distinction, and in his decision, he did not do so. Rather, the motions judge’s reliance on potential shades of meaning between the English- and French-language versions was for the purpose of construing the documents, not distinguishing between them.

[3] Although we favour the plaintiff/appellant’s approach to this issue, we would not incorporate specific language from the documents into the form of our order. We would not want our order to have the effect of equating, or not equating, the different language versions, or expressing any view of the significance, if any, of any shades of meaning between the English- and French-language versions, and the materiality, if any, of those differences to the issues between the parties.

[4] For these reasons, we direct that para. 2(b) of the Certification Order be varied to read as follows:

(b) the claim for negligent misrepresentation and related relief as set out in the Claim on behalf of the following:

All persons in Canada or elsewhere who were invested in the Can-Am Fund after December 30, 1997 under contracts of insurance offered by NN Life Insurance Company of Canada or Transamerica Life Canada where the corresponding summary information folder or information folder contained a best efforts replication statement (whether in English or in French).

H. SACHS J.

D. L. CORBETT J.

GILMORE J.

Date: 201508