Primerica Life Insurance Company of Canada v. Financial Services Commission of Ontario, 2015 ONSC 2651

v. Financial Service Commission of Ontario,

2015 ONSC 2651

COURT FILE NO.: CV-14-00507806

DATE: 20150424

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PRIMERICA LIFE INSURANCE COMPANY OF CANADA

Applicant

– and –

FINANCIAL SERVICES COMMISSION OF ONTARIO

Respondent

Julie K. Parla, F. Paul Morrison, and Kate Findlay, for the Applicant

Ronald Carr and Sandra Nishikawa, for the Respondent-Moving Party

HEARD: April 16, 2015

Dow, j

reasons

Introduction

1The respondent, Financial Services Commission of Ontario (“FSCO”), seeks dismissal of this application by Primerica Life Insurance Company of Canada under Rule 21.01(b), or on the basis it discloses no reasonable cause of action.

2The application seeks declaratory relief for an alleged breach by FSCO of its commitment to “Consult and communicate with course providers, prior to making any changes to the curriculum design document or to the examination format or content” as stated in a Letter of Intent dated May 24, 2002 between these parties (and others). Primerica also seeks a declaration that FSCO acted without authority with regard to entering into a Memorandum of Understanding June, 2012 signed by the Superintendent of Financial Services for Ontario, a Participation Agreement April 5, 2013 again, signed by Superintendent of Financial Services, Financial Services Commission of Ontario and a Service Agreement also April 5, 2013 signed by Superintendent of Financial Services, Financial Services Commission of Ontario on behalf of Her Majesty the Queen in Right of Ontario, as represented by the Minister of Finance.

Analysis

Analysis

3Primerica is a life insurance company not only selling policies to Canadians but also, prior to the issue which has arisen in this application, a course provider for those seeking to become qualified and licensed life insurance agents.

4The Financial Services Commission of Ontario, as stated, is a Commission created by statute (S.O. 1997, c.28) to provide regulatory services to protect the public interest reporting to the Minister of Finance. Counsel for FSCO in his argument identified the Superintendent, created in section 5 as having specific powers and duties which include, in section 8 the right to “engage persons” which appears to include hiring people or bind the Commission to contracts of employment both within and outside the Public Service of Ontario Act, 2006 c.35.

5The legislation also contains the standard immunity clause (section 10) protecting the Superintendent and any employee from any “action or other proceeding for damages” for any act done in good faith in the execution of that person’s powers or duties.

6In addition to this application against FSCO, there are two other applications, identical in substance against Her Majesty the Queen between the parties which counsel for the Crown is not moving to strike out.

7The parties agree that a motion under Rule 21.01(b) involves taking the allegations contained in the application and assuming same have been proven. That is, as set out in paragraphs 10 through 12, inclusive of the Notice of Application, FSCO entered into a letter agreement with Primerica, among others, executed on May 24, 2002.

8Counsel for FSCO refers to the Portuguese Canadian Credit Union Ltd. (Liquidator of) v. 1141931 Ontario Ltd., 2012 ONCA 274 decision where the Court adopts the reasoning of the motions judge that in the circumstances presented to it, a counterclaim for contribution indemnity from a fraud committed and the apparent recovery of $30,000,000, that “FSCO is a non-corporate entity without the express or implied capacity to be sued.” This is on the basis it fell within the sixth category of statutory entities described by Justice Houlden in Westlake v. The Queen in Right of the Province of Ontario, [1971] 3 O.R. (H.Ct.J.) which is:

Non-corporate bodies which are not by the terms of the statute incorporating them or by necessary implication liable to be sued in an action for damages, but who are legal entities in that their actions may be reviewed in proceedings brought against them by way of the extraordinary remedies of certiorari, mandamus and prohibition.

9This classification of statutory entities, and their exposure to legal proceedings is reviewed by our Court of Appeal in Ontario v. Gratton-Masuy Environmental Technologies Inc., 2010 ONCA 501 and, at paragraph 53, appears to agree with my sense that Portuguese Canadian Credit Union Ltd. (Liquidator of) v. 1141931 Ontario Ltd. should be interpreted only with regard to “an action for damages”.

10What Primerica is seeking, without in any way evaluating the merits, is declaratory relief or (as the Court raised with the parties) judicial review.

11In my view, the analysis need go no further. The Superintendent of Financial Services is clearly empowered to enter into contracts on behalf of Her Majesty the Queen in Right of Ontario as represented by the Minister of Finance. The relief being sought is declaratory. The applicant is entitled to proceed given the nature of the relief sought and this motion is dismissed.

Costs

Costs

Counsel for Primerica had three counsel in attendance and the matter was argued by intermediate level counsel. Counsel for the Crown Law Office advised, in the absence of a cost outline, if successful, he was seeking the sum of $5,000, inclusive of fees, HST and disbursements. Counsel for Primerica indicated their partial indemnity cost outline to be in the amount of $21,000. I would fix costs in the amount of $5,000, inclusive of fees, HST and disbursements payable by the FSCO to Primerica in any event of the cause.

Mr. Justice G. Dow

Released: April 24, 2015

v. Financial Service Commission of Ontario,

2015 ONSC 2651