1. What is a class action lawsuit?
2. Who is the Notice of Proposed Settlement for?
3. What is this litigation about?
4. What is the purpose of the Notice of Proposed Settlement?
5. When was this action certified?
6. What is available under the proposed Settlement?
7. When is the Settlement Approval Hearing?
8. What are my legal rights and options?
9. Why did I get this Notice of Proposed Settlement?
10. Why is there a Settlement?
11. How do I know if I am part of the Settlement?
12. How do I know which category of Class Member I am?
13. How do I make a Claim for compensation under the Settlement?
14. When will I receive my compensation?
15. Who will review my allocation?
16. Can I exclude myself from the proposed Settlement?
17. Who is Class Counsel?
18. How will the lawyers representing the Class be paid?
19. What if I don’t agree with the proposed Settlement?
20. How can I get more information?
A class action is a type of lawsuit in which one or more persons, referred to as representative plaintiffs, bring a suit on behalf of all of the members of a similarly situated group who have similar claims, except for those who choose to exclude themselves, without the necessity of each member filing an individual lawsuit and incurring all of the expenses or appearing as an individual plaintiff.
The Notice is directed to all Class Members in this certified class proceeding who have not opted-out of the class action.
The Plaintiff’s Statement of Claim alleges that the Defendant made commitments or representations related to the Can-Am Fund replicating the performance of the S&P 500 Total Return Index on a best efforts basis. The Can-Am fund was available as an investment option through a number of different insurance policies offered by the Defendant. The alleged commitments and representations were either: i) express contractual commitments in the Class Members’ written insurance contracts or (“Contract Class Members”); or ii) representations (not contractual promises) contained in the “summary information folders” that were provided to Class Members in connection with their application for their insurance contract (Class Members with for whom the alleged commitments and representations are found only in the summary information folders are “Misrepresentation Class Members”).
Following a series of court decisions and appeals issued between 2013 and 2017 this action was certified (or approved to proceed) as a class action with Joseph Fantl as the representative plaintiff.
The Class was notified of the certification of this class action in 2019 and given the opportunity to exclude themselves (opt-out) from this class action. Anyone remaining in this class action following the close of the opt-out period agreed to be bound by any decision at trial or court-approved settlement in this action.
Following several years of additional litigation, including an extensive discovery process and a mediation before a retired judge, the Parties reached the proposed settlement.
The purpose of the Notice of Settlement Approval is to advise all Class Members of the approval of the Settlement Agreement by the Ontario Superior Court of Justice on December 12, 2023.
Following a series of court decisions and appeals issued between 2013 and 2017, this action was certified (or approved to proceed) as a class action with Joeseph Fantl as the representative plaintiff. The Class was notified of the certification of this class action in 2019 and given the opportunity to exclude themselves (opt-out) from this class action. Anyone remaining in this class action following the close of the opt-out period agreed to be bound by any decision at trial or court-approved settlement in this action.
Under the proposed Settlement, the Defendant ivari has agreed to make an all-inclusive settlement payment of CAD $7 million. Compensation to Class Members (the “Net Settlement Fund”) will be paid from the net amount of the $7 million sum remaining after payment of Class Counsel’s legal fees and incurred expenses, settlement administration expenses, and payments owing the Class Proceeding Fund (including the Fund’s 10% statutory levy).
In exchange for its $7 million payment, ivari will receive a full release of all claims and any potential claims that the more than 71,000 Class Members may have against it relating to their investments in the Can-Am Fund. The Net Settlement Fund will be distributed among the Class Members pursuant to the Distribution Protocol (defined below). If approved, this settlement will be binding on all Class Members who have not opted out of this class action, regardless of whether or not that Class Member received any share of the Net Settlement Fund pursuant to the Distribution Protocol.
Subject to the Court’s approval, the Parties have agreed to the following protocol (“Distribution Protocol”) to distribute the Net Settlement Fund. If this settlement is approved:
- No Class Member shall be required to make a claim or provide evidence regarding their individual allocation. Instead, each relative share of the Net Settlement Fund allocated to a qualifying Class Member shall be calculated on the basis of that Class Member’s Can-Am Fund transaction data that is already in the possession of the Defendant;
- An outside financial services and consulting firm has been retained to calculate each Class Member’s individual share of the Net Settlement Fund;
- Individual Class Member allocations are based on a comparison of the returns of their investments in the Can-Am Fund to the returns of the S&P 500 Total Return Index between June 1, 2000 through July 31, 2019. Individuals who divested from the Can-Am Fund prior to June 1, 2000 or invested after July 31, 2019 will not be entitled to a share of the Net Settlement Fund;
- The difference between a Class Member’s Can-Am Fund returns and the S&P 500 Total Return Index within that time period is used to generate a notional amount specific to that Class Member;
- The statutory pre-judgement interest of 3.3% is then added to this notional amount for each Class Member from the time of their divestment from the Can-Am Fund or July 31, 2019 (whichever is earlier) to May 3, 2023;
- Class Members whose insurance contracts did not contain express best efforts language (i.e. Misrepresentation Class Members) will have their notional amount reduced by 50% to account for the greater risks and lower likelihood of recovery on the misrepresentation claims if the case had proceeded forward on the merits. The misrepresentation claims and damages resulting therefrom would arguably have been more difficult to establish than the claims and damages based on the breach of contract claims;
- Class Members whose insurance contracts contained express best efforts language (i.e. Contract Class Members) will not have their notional amount reduced;
- The notional amount of each Class Member as calculated and potentially reduced as per above will in turn be expressed as a percentage of the sum of all notional amounts and then multiplied by the Net Settlement Fund to determine the initial allocation of each Class Member.
- Class Members whose initial allocation amounts to $50 or less shall not receive any compensation from the Net Settlement Fund, and $50 or less amounts otherwise allocated to those Class Members shall be distributed to the balance of the Class on the basis of their proportionate share;
- It is anticipated that approximately 17,000 Class Members will have an initial allocation of more than $50 and will receive a payment. For those Class Members whose initial allocation pursuant to the Distribution Protocol is greater than $50, the estimated median payout amount is approximately $130.
- The Funds from any uncashed compensation cheques will be pooled and, 13 months following the first distribution of settlement funds, will be paid out in a second distribution to those Class Members who cashed cheques during the first distribution, with each such Class Member receiving a proportionate percentage of the uncashed compensation calculated by dividing the value of their cashed cheque from the initial distribution by the sum total value of all cashed cheques from the initial distribution; and,
- Any Settlement Funds remaining following the second distribution will not be returned to ivari but will be donated to charity.
The Representative Plaintiff and Class Counsel strongly recommend the settlement. In their opinion, when viewed against the alternative of continued litigation and the delay and uncertain outcome of same, the Settlement is fair, reasonable and in the best interests of the class. The Plaintiff’s full submissions in support of the settlement will be set out in materials to be filed with the Court and made available for your review through a posting or link on www.royoconnor.ca in advance of the settlement approving hearing (as described below). A full copy of the Settlement Agreement is available now for your review here.
The Settlement Approval Hearing took place before the Ontario Superior Court of Justice on December 11, 2023. Following the hearing, on December 12, 2023, the Court approved the Settlement as fair, reasonable, and in the best interests of the Class. The Court also approved the fees of Class Counsel.
In order to communicate with you better and to assist in the mail-out of cheques, Class Members are requested to confirm or update their contact information by sending an email to the settlement administrator, Epiq Class Action Services Canada, Inc. at info@canamfundclassaction.ca or through the change of address link here.
The Class was notified of the certification of this class action in 2019 and given the opportunity to exclude themselves (opt-out) from this class action. Anyone remaining in this class action following the close of the opt-out period agreed to be bound by court-approved settlement in this action.
Please see the Notice of Settlement Approval by clicking this link. Please read the Notice and this FAQ carefully.
You received the Notice of Settlement Approval because the Defendant’s records indicate that you are a Class Member as certified by the Court.
You have a right to know about the Settlement. The Defendant will provide the Settlement Fund agreed to in the Settlement Agreement. The Notice of Settlement Approval and this FAQ explain the class action lawsuit, the Settlement, your legal rights, what compensation is available, who is eligible for that compensation, and how compensation will be distributed. Please read the Notice of Settlement Approval and this FAQ carefully.
The Parties have agreed to the Court-approved Settlement to avoid the cost and risk of further litigation, including potential trials, and to provide Class Members with reasonable compensation in exchange for releasing the Defendant from liability. The Settlement does not mean that the Defendant did anything wrong, and the Court did not decide which Party was right.
On December 12, 2023, the Court approved the Settlement as fair, reasonable and in the best interests of the Class.
Class Members are: All persons that satisfy the following court-approved class definition and who did not validly opt-out of this class proceeding:
- In respect of the claim for breach of express terms of contract and related relief requested as set out in the Claim, All persons in Canada or elsewhere who were invested in the Can-Am Fund after December 30, 1997 under IMS III contracts of insurance with revisions dates, 11/94, 02/95, 09/95 and 11/96 and IMS RRIF contracts of insurance with revision date 10/95 offered by NN Life Insurance Company of Canada or Transamerica Life Canada, excluding any claims by beneficiaries statue-barred by absolute limitation period as follows: Any beneficiaries to whom a death benefit was paid prior to December 29, 2002 under a contract of insurance issued in the Provinces of Ontario, Alberta, British Columbia, Manitoba, Saskatchewan, New Brunswick, Nova Scotia, or Prince Edward Island (defined as “Contract Class Members”).
- In respect of the claim for negligent misrepresentation and related relief as set out in the Claim, All persons in Canada or elsewhere who were invested in the Can-Am Fund after December 30, 1997 under contracts of insurance offered by NN Life Insurance Company of Canada or Transamerica Life Canada where the corresponding summary information folder or information folder contained a best efforts replication statement (whether in English or in French) (defined as “Misrepresentation Class Members”).
The Plaintiff’s Statement of Claim alleges that the Defendant made commitments or representations related to the Can-Am Fund replicating the performance of the S&P 500 Total Return Index on a best efforts basis. The Can-Am fund was available as an investment option through a number of different insurance policies offered by the Defendant.
- You are a “Contract Class Member” if the alleged commitments and representations were express contractual commitments in your written insurance contracts.
In respect of the claim for breach of express terms of contract and related relief requested as set out in the Claim, All persons in Canada or elsewhere who were invested in the Can-Am Fund after December 30, 1997 under IMS III contracts of insurance with revisions dates, 11/94, 02/95, 09/95 and 11/96 and IMS RRIF contracts of insurance with revision date 10/95 offered by NN Life Insurance Company of Canada or Transamerica Life Canada, excluding any claims by beneficiaries statue-barred by absolute limitation period as follows: Any beneficiaries to whom a death benefit was paid prior to December 29, 2002 under a contract of insurance issued in the Provinces of Ontario, Alberta, British Columbia, Manitoba, Saskatchewan, New Brunswick, Nova Scotia, or Prince Edward Island.
- You are a “Misrepresentation Class Member” if the alleged commitments and representations were representations (not contractual promises) contained in the “summary information folders” that were provided to Class Members in connection with your application for your insurance contract. The alleged commitments and representations are found only in the summary information folders.
In respect of the claim for negligent misrepresentation and related relief as set out in the Claim, All persons in Canada or elsewhere who were invested in the Can-Am Fund after December 30, 1997 under contracts of insurance offered by NN Life Insurance Company of Canada or Transamerica Life Canada where the corresponding summary information folder or information folder contained a best efforts replication statement (whether in English or in French).
On December 12, 2023, the Court has approved the Settlement. Accordingly, no Class Member shall be required to make a claim or provide evidence regarding their individual allocation. Instead, each relative share of the Net Settlement Fund allocated to a qualifying Class Member shall be calculated on the basis of that Class Member’s Can-Am Fund transaction data that is already in the possession of the Defendant.
Pursuant to the Order of the Court, the Claims Administrator will mail individual compensation cheques to qualifying Class Members.
In order to communicate with you better and to assist in the mail-out of cheques, Class Members are requested to confirm or update their contact information by sending an email to the settlement administrator, Epiq Class Action Services Canada, Inc. at info@canamfundclassaction.ca or through the change of address link here.
The process can take some time and your patience is appreciated. When the cheques have been mailed, an announcement will be posted on the websites of Class Counsel (www.royoconnor.ca) and the Claims Administrator (www.canamfundclassaction.ca).
Pursuant to the Order of the Court, no Class Member shall be required to make a claim or provide evidence regarding their individual allocation. Instead, each relative share of the Net Settlement Fund allocated to a qualifying Class Member shall be calculated on the basis of that Class Member’s Can-Am Fund transaction data that is already in the possession of the Defendant.
An outside financial services and consulting firm has been retained to calculate each Class Member’s individual share of the Net Settlement Fund.
Following a series of court decisions and appeals issued between 2013 and 2017 this action was certified (or approved to proceed) as a class action with Joseph Fantl as the representative plaintiff.
The Class was notified of the certification of this class action in 2019 and given the opportunity to exclude themselves (opt-out) from this class action. Anyone remaining in this class action following the close of the opt-out period agreed to be bound by any decision at trial or court-approved settlement in this action.
The law firm representing the Class Members (Class Counsel) is listed below. You will not be charged for contacting these lawyers for more information.
Roy O’Connor LLP
Barristers
Attn: James Katsuras
1920 Yonge Street, Suite 300
Toronto, ON M4S 3E2
Telephone: 416-362-1989
Email: info@royoconnor.ca
If you want to be represented by your own lawyer, you may hire one at your own expense.
The law firm of Roy O’Connor LLP is Class Counsel and has represented the members of this Class in this action for the last 11 years of the litigation.
Class members will not have to personally pay for the legal work done or for the associated expenses incurred over the years since this case began. The contingency fee agreement with Class Counsel sets out that Class Counsel will ask the Court to approve legal fees of 30% of any settlement funds, plus their disbursements and applicable taxes.
Approval of the Settlement Agreement will not be contingent upon the Court approval of legal fees.
For clarity, as explained above, any approved legal fees and disbursements (and related taxes) will be paid out of the $7 million settlement fund.
In this case, the Plaintiff has received financial support from the Class Proceedings Fund (the “Fund”), which is a body created by statute and designed to allow access to the courts through class actions in Ontario. The Fund agreed to reimburse the Plaintiff for some expenses incurred in pursuing this action. The Fund would also have been responsible for costs that may have been awarded against the Plaintiff in this case. In exchange, the Fund is entitled to recover, from any court award or settlement in favour of the Class Members, the amounts it has reimbursed the Plaintiff for expenses as well as 10% of any amounts payable to Class Members.
You may check on the progress of Class Counsel’s request for fees and expenses by visiting this website. Court Orders will be posted on the Documents page.
Pursuant to the Settlement Approval Order, no Class Member shall be required to make a claim or provide evidence regarding their individual allocation. Instead, each relative share of the Net Settlement Fund allocated to a qualifying Class Member shall be calculated on the basis of that Class Member’s Can-Am Fund transaction data that is already in the possession of the Defendant.
The Claims Administrator will mail individual compensation cheques to qualifying Class Members.
In order to communicate with you better and to assist in the mail-out of cheques, Class Members are requested to confirm or update their contact information by sending an email to the settlement administrator, Epiq Class Action Services Canada, Inc. at info@canamfundclassaction.ca or through the change of address link here.
The Notice of Proposed Settlement and this FAQ summarize the proposed Settlement. More details are in the Settlement Agreement, which you can view on the Documents page.
Neither the Parties nor their counsel make any representation regarding the tax effects, if any, of receiving any benefits under this proposed Settlement. Consult your tax adviser for any tax questions you may have.
PLEASE DO NOT CALL IVARI, THE COURHOUSE, OR THE REGISTRAR OF THE COURT ABOUT THIS ACTION. THEY WILL NOT BE ABLE TO ANSWER YOUR QUESTIONS ABOUT THE LAWSUIT OR SETTLEMENT.
If you have any questions regarding the proposed Settlement or about the class action lawsuits in general, information is available on Class Counsel's website (www.royoconnor.ca) or by contacting Class Counsel directly:
Roy O’Connor LLP
Barristers
Attn: James Katsuras
1920 Yonge Street, Suite 300
Toronto, ON M4S 3E2
Telephone: 416-362-1989
Email: info@royoconnor.ca
You can also obtain more information by reaching out to the proposed Claims Administrator:
CAN-AM Fund Replication Class Action
c/o Epiq Class Action Services Canada, Inc.
PO Box 507 Station B
Ottawa, ON K1P 5P6
Toll-Free Telephone: 1-877-590-8351
Email: info@canamfundclassaction.ca