The Class Action
Roy O’Connor LLP is prosecuting a class action lawsuit against Transamerica Life Canada. This class action is brought by the representative plaintiff (Joseph Fantl) on behalf of persons who invested or purchased units in a number of segregated funds that were offered as investment options by the defendant, NN Life Insurance Company of Canada (or its predecessors) and subsequently Transamerica Life Canada (for a complete list of the affected funds please read the “Settlement Agreement” – link below).
One aspect of the claim relates whether the Can-Am fund effectively “cloned” or replicated the performance of the S&P 500. Another aspect of the claim related to the alleged overcharging of management and other fees in respect all of the funds in question. Transamerica denies the allegations in the claim and the allegations have not yet been proved in Court.
Certification of Cloning Claim
Certification Motion - The hearing of the Plaintiff’s motion for the certification of the “cloning” claim was heard on April 9 & 10, 2013. In Reasons for Decision released on April 18, 2013 the Plaintiffs’ action was certified as a class proceeding as it related to a subset of Class Members whose insurance contract contained a provision relating to the replication of the performance of the S&P 500. Among other things, the Plaintiff sought leave to appeal to the Divisional Court to, among other things, certify a claim in negligent misrepresentation for a larger Class. In April 2014, the Divisional Court granted the Plaintiff leave to appeal. The Divisional Court appeal was heard in February 2015.
Plaintiff’s Divisional Court Appeal Allowed - In Reasons released on March 9, 2015, a unanimous three-judge Divisional Court allowed the Plaintiff’s appeal and certified the claim in negligent misrepresentation for a broader Class. Please click here to view or download a copy of the Divisional Court’s Reasons for Decision. The Defendant Transamerica sought and was granted leave to appeal to the Court of Appeal. That appeal was heard in May 2016.
Transamerica’s Appeal to the Court of Appeal Dismissed - We are pleased to report that, in Reasons for Decision released on August 22, 2016, a unanimous three-judge panel of the Court of Appeal dismissed Transamerica’s appeal and confirmed that the claim in negligent misrepresentation would proceed to a common issues trial. Please click here to view or download a copy of the Court of Appeal’s Reasons for Decision.
UPDATE – February 23, 2017 – Transamerica’s Application for Leave to Appeal to the Supreme Court of Canada Dismissed – On February 23, 2017 Transamerica’s application for leave to appeal from the Ontario Court of Appeal’s decision to uphold the expanded certification was dismissed with costs.
The Plaintiff, through our firm, will now seek to press the matter forward to seek a determination on the merits of the certified common issues. Additional updates will be posted on this site as the case develops.
Settlement of Management Fee Overcharge Claim
In 2009 the parties reached an agreement to settle the excess management fee aspect of the class action. The other aspect of the claim, relating to the question whether the Can-Am Fund cloned or replicated the performance of the S&P 500, did not settle at that time. The aim of the settlement was to return any excess management fees that were charged to Class Members and to compensate affected Class Members for any related losses. The parties developed a formula for calculating the amounts owing to individual Class Members. The settlement formula and the financial and policyholder information used to calculate the amounts owing to Class Members were examined and verified for their accuracy and fairness by independent accounting experts retained by each party. Under the settlement agreement, compensation was paid to Class Members pursuant to the provisions of the restitution program set out in the settlement agreement.
Settlement of Management Fee Overcharge Claim Approved – On August 10, 2009, the Ontario Superior Court of Justice approved the proposed settlement of the Excess Management Fee Claim in this proceeding and certified the Excess Management Fee Claim as a class proceeding. A formal notice of certification was delivered to the class. To view or download the settlement approval and certification click here.
Donation to the Heart & Stroke Foundation – The Certification and Settlement Approval Order was, by order of the Ontario Superior Court of Justice, varied to accelerate the date by which the de minimus amounts are to paid the Heart & Stroke Foundation. As a result of this settlement, the Heart & Stroke foundation has received to date over $23,000. To view or download a copy of the Superior Court’s order click here: Issued And Entered Variation Order
Close of Management Fee Settlement – On September 11, 2013, the Management Fee Overcharge settlement was formally concluded. The Representative Plaintiff, Class Counsel and Monitor/Administrator were formally discharged by the court. To view or download a copy of the Superior Court’s order please click here: Discharge Order
Notice of Settlement Approval Hearing – to view or download a copy of the Court approved notice of the settlement approval hearing click here: Notice of Settlement Approval Hearing
Press Release – To view the joint press release issued by Roy O’Connor, on behalf of the Representative Plaintiff, and Transamerica regarding the settlement of the management fees issue please click here: Transamerica Fund Press Release – English. For the French version please click here: Transamerica Fund Press Release – French.
Summary of the Settlement Agreement – to view or download a summary of the proposed settlement agreement click here: Transamerica Fund – Summary of the Settlement Agreement – English.
Settlement Agreement – to view or download a copy of the proposed settlement agreement, click here: Transamerica Fund – Final Signed Settlement Agreement – English.
Notification de l’Audition pour l’Approbation – Pour voir ou télécharger une copie de la notification de l’audition pour l’approbation approuvé par le Tribunal, Appuyez Ici.
Sommaire de la Convention De Règlement – Pour voir ou télécharger un sommaire de la convention, Appuyez Ici.
La Convention De Règlement – Pour voir ou télécharger une copie de la convention, Appuyez Ici.