2010 - LC - Life Assurance Company of Canada v. Metropolitan Life Insurance Company - Judgement - Ontario - Superior Court - 8p
- 2010 - LC - Sun Life Assurance Company of Canada v. Metropolitan Life Insurance Company - Judgement - Ontario - Superior Court --- [BonkNote] --- 8p -
- (p5-6) - [30] However, there is no genuine issue that all policyholders who purchased all three policies were misled. The evidence is to the contrary.
- For example, one of the affidavits submitted came from a person named Frank Brisbin.
- Mr. Brisbin, in his affidavit, testified that, in 1991, he began working as a training consultant for MetLife.
- In that position, he re-wrote MetLife's sales training materials for individual insurance products. [31]
- In his affidavit, Mr. Brisbin said that, in the mid-to-late 1990’s, the marketing materials for the Flexiplus policy were unclear.
- Specifically, he was concerned about the claim in the marketing materials that the cost of insurance for the Flexiplus policy would not change in years one through seven, and years nine and following.
- All parties to this motion agree that, in fact, the Flexiplus policy permitted the cost of insurance to increase.
- This was one of the negligent misrepresentations with which we are concerned in this motion.
- However, at paragraph 30 of his affidavit, Mr. Brisbane said: I also knew that at least one of the other trainers said that the cost of insurance could be increased.
- Accordingly, it is clear from this evidence that not every trainer was confused about the policy.
- (p6) - [32] The evidence does not rationally permit the inference that every sales advisor who sold the policies with which this motion is concerned was misinformed. The evidence is to the contrary. Therefore, it is not rational to conclude that every policyholder was misinformed.
- ⇒ Rather, what the evidence suggests is that different segments of the company had a different understanding about the policies and that understanding may have changed over time.
- (p6) - [35] The evidence on the motion established that MetLife agents were instructed to read the policies they were selling so that they could explain them to prospective purchasers.
- ⇒ There is no reason to believe that all of the agents selling the three policies with which we are concerned
failed to read them or that all agents who read the policies failed to understand them.
- (p6) - [37] - There is no reason to believe that this was unique in the experience of Sun Life or MetLife.
- Given the sophistication of the parties, the specific provisions dealing with Market Conduct Claims should be applied.
- (See: Canadian National Railway v. Royal & Sun Alliance Insurance Co. of Canada, 2008 S.C.C. 66, at para. 116; Tercon Contractors Ltd. v. British Columbia (Minister of Transportation & Highways) 2007 B.C.C.A. 592, at para. 15)
- (p7) - [39] The plaintiff sues for declaratory relief. The plaintiff’s position is that the negligent misrepresentation of the MetLife sales advisors has already occurred. The policyholders have
already been exposed to these misrepresentations and have acted upon them. The plaintiff asserts that its claim is therefore complete. However, the plaintiff’s right to indemnification depends upon the claim exceeding $1 million in respect of any single Market Conduct Claim or group of Market Conduct Claims arising in respect of the same underlying factual circumstances. That threshold has not yet been met. There is no right to indemnity at the present time because there is no indemnity for Market Conduct Claims below $1 million. Therefore, the claim in the statement of claim can only be described as speculative, that is possible, but not presently existing. The claim for indemnification is not complete until the $1 million threshold is met. Declaratory relief is not available to settle disputes which are dependent upon a future event which may never take place. (See: Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441 at paras. 31 and 33; and Solosky v. Canada, [1980] 1 S.C.R. 821 for the discussion beginning at para. 9)
- (p7) - [41] In short, it does not matter who owns the liability. MetLife cannot be held accountable until the threshold is exceeded. That is the bargain the parties made. Until the threshold is exceeded, there is no cognizable threat to the legal interests of Sun Life. Accordingly, it is not appropriate at this time to entertain the use of the court process as a preventative measure. (See: Operation Dismantle, supra, at para. 33)
- [42] Accordingly, this application for summary judgment is allowed. While proper notice of the claim for indemnification has been given, due to the fact that the $1 million threshold has not been met, the plaintiff's action is premature. The applicant is entitled to costs. If the parties cannot agree on the quantum of costs, brief written submissions may be made.