COURT FILE NO.: CV-20-82562-00CP
DATE: 20200819
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GIULIA BELEC
Plaintiff
– and –
SUN LIFE ASSURANCE COMPANY OF CANADA
Defendant
Joseph Y. Obagi and Elizabeth A. Quigley, for the Plaintiff
Linda Plumpton, David Outerbridge and Winston Gee for the Defendant and Moving Party
HEARD: August 5th, 2020
DECISION ON WHETHER TO ALLOW THE DEFENDANT TO BRING A MOTION FOR SUMMARY JUDGMENT BEFORE THE MOTION FOR CERTIFICATION
R. Smith J.
[1] The defendant, Sun Life Assurance Company of Canada (“Sun Life”) has brought a motion requesting an order that its motion for summary judgment be heard before the plaintiff’s motion for certification, and before any further steps are required to be taken in connection with the plaintiff’s motion for certification.
[2] The proposed representative plaintiff, Giula Belec, has also brought a motion to certify a class proceeding against Sun Life and she opposes Sun Life’s request. She wishes to proceed with the certification motion before Sun Life’s summary motion is heard.
Issue #1: Should Sun Life’s motion for summary judgment be heard before or at the same time as the plaintiff’s certification motion?
[3] Ms. Belec was an employee of the federal government since 1982 and was insured under a group disability policy issued by Sun Life. She has been receiving benefits under the policy since 2006.
[4] She claims that Sun Life has mis-calculated her long-term disability (“LTD”) benefits under the policy. She alleges that Sun Life has misapplied the cost of living adjustment (“COLA”) provisions of the policy for all class members.
[5] Sun Life submits that it has applied the COLA provisions for Ms. Belec in accordance with the terms of the policy. Sun Life argues that the plaintiff’s claim is totally lacking in merit and allowing a summary judgment to proceed before certification would allow the court to dismiss this claim before the costs and additional delay are incurred by proceeding with a certification motion.
[6] Sun Life argues that the issue to be decided is suitable for determination by a summary judgment motion because it mainly involves a question of contract interpretation. It also submits that a summary judgment motion would allow for a just and expeditious determination of the issue.
[7] The plaintiff submits that the motion for summary judgment should be heard after the certification motion has been held and presumably granted. The plaintiff argues that the interpretation of the insurance policy’s terms on how the COLA provisions are to be applied where a claimant has received or earned other income is not a simple exercise. Further the factual matrix of how the COLA provisions have been applied by Sun Life need to be considered when interpreting the policy.
[8] The plaintiff also argues that the terms of the disability policy with regards to the application of the COLA provisions are ambiguous, and any ambiguity under the insurance policy should be resolved in favour of the insured based on the contra proferentem rule.
[9] As can be seen from Appendix 1, Sun Life has actually been applying the COLA provisions to Ms. Belec in a manner different from the interpretation put forward by it in its factum. Sun Life has been increasing the amount of Ms. Belec’s (total) monthly benefit (70% of her annual salary at the date of commencement of eligibility, divided by 12) for COLA on January 1 of each year. Ironically the plaintiff the agrees that Sun Life has been the calculating the cost of living adjustments correctly based on the total monthly benefit received. Sun Life has not applied the cost of living adjustments to Ms. Belec’s net income, namely on her total monthly benefit minus the other income that she has received. In this case she is receiving Canada Pension Plan benefits and also Superannuation benefits.
[10] Finally, the plaintiff alleges that Sun Life has been wrongfully deducting the total indexed amounts received by her from Canada Pension Plan and Superannuation, contrary to section 6 of the policy which specifically excludes the cost of living increases in the other income she received related to the escalation due to changes to the Consumer Price Index.
Analysis
[11] The parties agree that s. 12 of the Class Proceedings Act gives the court the discretion to decide the sequencing of pretrial motions based on what is appropriate concerning the conduct of a class proceeding to ensure its fair and expeditious determination.
[12] In Canon v. Funds for Canada Foundation, 2010 ONSC 146 at paragraph 15, Strathy J. (as he then was) set out a list of factors to be considered when deciding whether to order a summary judgment motion to proceed before the certification motion.
A. Whether the motion will dispose of the entire proceeding or substantially narrow the issues to be determined;
[13] The proposed summary judgment motion would potentially dispose of the claim by Ms. Belec but would not dispose of the class proceeding because Sun Life has not agreed that the finding on Ms. Belec’s summary judgment motion would be binding on all class members. If the certification motion and the summary judgment motion were heard at the same time and if the certification was granted, then the whole proceeding would be disposed of one way or another.
[14] In addition, it is very likely that any decision made on the summary judgment motion would be appealed and this would cause additional delay and costs.
B. The likelihood of delays and costs
[15] As stated above there is a high likelihood that any decision under the summary judgment motion will be appealed and having two proceedings would incur unnecessary delay and additional costs.
C. Whether the outcome of the motion will promote settlement;
[16] If the certification and summary judgment motion were heard together then this would promote a possible settlement and proceeding with the summary judgment motion first is unlikely to promote any settlement, but rather an appeal.
D. Whether the motion would give rise to interlocutory appeals and delays that would affect certification;
[17] As stated previously, hearing the summary judgment motion first would likely result in an appeal and further delay of the certification proceedings.
E. Interest of economy and fairness and efficient determination;
[18] Economy and judicial efficiency would be increased if the summary judgment motion was heard at the same time as the certification motion. This would avoid having two proceedings with an appeal of the summary judgment before the certification motion was decided, additional delay and costs would be incurred.
[19] Sun Life’s main argument for proceeding with the summary judgment motion before certification is that the plaintiff’s claim is totally lacking in merit such that it can be dismissed on a summary motion which would promote economy and judicial efficiency.
[20] The merits of an action in a class proceeding are not considered in detail other than to ensure that the plaintiff has pleaded some evidence showing a basis in fact for all of the requirements set out in section 5 of the Class Proceeding Act. If there is a common issue to be determined for the benefit of all class members and if proceeding by way of a class proceeding is the preferable approach than an action will likely be certified, provided all five factors are met.
[21] I am not deciding the merits of the summary motion or certification on this motion, but the plaintiff’s case is not so lacking in merit that proceeding with a summary judgment motion first would be fairer more efficient. I make this finding for the following reasons:
a) for many years Sun Life has been interpreting the policy and applying the cost of living adjustment to Ms. Belec’s total monthly benefit and not on the net monthly amount she received after deducting her other income (CPP and Superannuation). Sun Life’s conduct supports the interpretation sought by the plaintiff which is different from the interpretation urged by the defendant on this motion; and
b) Sun Life has been deducting the total amount of the other income received by Ms. Belec, including the cost of living increases she received from her CPP and Superannuation benefits contrary to the express provisions of paragraph 6 of the policy. The interpretation urged by the plaintiff does amount to double recovery by the plaintiff for the cost of living increases to the CPP and Superannuation benefits received by Ms. Belec. This will be a factor to be considered as when interpreting the terms of the policy.
[22] I find that hearing the motion for summary judgment at the same time as the motion for certification is the fairest and most efficient manner of proceeding for the following reasons;
a) If the matter is suitable to be disposed of in a summary judgment motion, then a ruling on the motion will be binding on all class members which promotes economy and judicial efficiency;
b) Allowing the certification motion to be heard at the same time as a summary judgment motion will promote access to justice for all class members as their certification motion will not be unduly delayed by appeals of a summary judgment motion decision;
c) The proposed amendments to the Class Proceeding Act, which allow a motion for summary judgment to be brought before certification, unless the judge orders otherwise, are not in force at the present time as the amendments have not been proclaimed. If the amendments were in force I would order otherwise in any event for the above reasons as I find that hearing the summary judgment motion first would not be the most efficient or fairest manner of proceeding;
d) The plaintiff has provided evidence that Sun Life has not actually been calculating the cost of living increases for Ms. Belec in the manner that it urges on this motion. In addition, the evidence in Ms. Belec’s case demonstrates that Sun Life has been wrongfully deducting the Consumer Price Index increases in her CPP and Superannuation benefits received by her, contrary to the terms of the policy.
e) Dealing with both motions at the same time will avoid the delay and costs that would be incurred with two proceedings and possibly two appeals; and
f) Sun Life will not suffer any prejudice if the two motions are heard at the same time and a decision will be achieved in one proceeding.
Disposition
[23] For the above reasons Sun Life’s motion to allow it to bring a motion for summary judgment before the certification motion is denied and I order that the certification motion and the summary judgment motion be heard at the same time.
Costs
[24] The parties are to make brief written submissions on costs within 15 days.
Released: August 19, 2020
COURT FILE NO.: CV-20-82562-00CP
DATE: 20200819
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GIULIA BELEC
Plaintiff
– and –
SUN LIFE ASSURANCE COMPANY OF CANADA
Defendant
decision on whether to allow the defendant to bring a summary judgment motion before the motion for certification is heard
R. Smith J.
Released: August 19, 2020