Ontario Court Of Appeal Emphasizes Access To Justice Over Concerns Regarding Individual Issues

The Ontario Court of Appeal in Fantl v. Transamerica Life Canada dismissed an appeal of a Divisional Court ruling, confirming the certification of an investor class action for negligent misrepresentation.

The ruling required the Court of Appeal to grapple with certifying a class with complex individual issues, and in light of Supreme Court of Canada's decision in AIC Limited v. Fischer, which refocused the preferability analysis towards addressing barriers to access to justice.

Background

The respondent commenced a class action against the appellant for negligent misrepresentation, alleging misrepresentations in a disclosure document that was provided to investors in the respondent's fund, pursuant to the Insurance Act. The negligent misrepresentation claim arose from "best efforts" statements made in the disclosure documents, which the respondent argued were untrue. Of the 53 insurance contracts at issue in the claim, five contained express "best