A former Supervisor of Insurance and thousands more Barbadians have launched a fresh attempt to recoup more than $163 million from a Canadian company which once insured their lives.
Three weeks after Ontario Superior Court of Justice Judge Frank Newbould denied them victory and a big pay day, four lawyers representing the former policyholders against The Manufacturers Life Insurance Company have officially told the province’s Court of Appeal they want the decision overturned.
They are urging the court to direct Newbould to order Manulife to deposit between $49.3 million and $164 million, plus interest, into a special fund for an arranged disbursement to retired insurance executive Wismar Greaves, other main appellants Richard Mandeville, Anthony Bowen and the estate of the late Sir Marcus Jordan, as well as more than 8,000 others.
“The notice of appeal was filed yesterday,” Harvey Strosberg, the main lawyer representing the Barbadians, told Barbados TODAY this afternoon. He and the rest of the legal team are now preparing to argue that the Canadian judge erred on seven grounds. These were: • Failing to agree “that Manulife did not have the power to extinguish the rights of the class without compensation”. • Not agreeing that the transaction approved by the Barbados Certificate of Sanction and Canada’s Minister of Finance “did not novate the contractual relationship between the members of the former policyholders and Manulife. • By recognising the authorisation of the transfer by the Barbados and Canadian regulatory authorities when he had found that Manulife had misled the Barbados Supervisor of Insurance and Eckler Partners Ltd. was not independent. • In his determination that Manulife did not owe a duty of care to its former clients.
The other areas of error, the appeal asserted, was in the judge’s determination that the insurer did not owe a fiduciary duty to the plaintiffs, that they were not entitled to be paid “a pro-rata share” of the surplus of Manulife upon their involuntary expulsion from the company in 1996, and that none of those who brought the class action was entitled to be paid damages.
The original Manulife class action trial took place between March 5 and May 18 this year, with the decision given at the beginning of this month. Newbould ruled that the Barbadians were not eligible policyholders entitled to participate in the demutualisation
plan, Manulife owed no duty of care or fiduciary duty to the Barbados policyholders, and none of the Barbadians was entitled to be paid damages.
“The plaintiffs did not seek to set aside the regulatory authorisations to the Transfer Agreement in Barbados and Canada. They accept for the purposes of this their argument that the effect of the authorisations was to extinguish their rights as policyholders of Manulife,” he said.
“Their case is that Manulife was not obliged not to take the steps that it did to extinguish those rights and
that a duty of care in law should be recognised in the circumstances.
“In the face of this regulatory regime authorising the transfer, it cannot be said that the plaintiffs had any right to remain as policyholders of Manulife. If the Barbados policyholders had no such rights, can it be said that Manulife was under a duty to protect their interests as policyholders and that a duty of care should be recognised? I do not think so,” he added.