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Measure of hope

supremecourtsbarbadosBarbadians who lost a class action suit alleging unfair financial treatment by their former insurance company Manulife, could still be in line for a more than $155 million windfall.

But not only has the Canadian corporation launched a fresh effort in the Court of Appeal for Ontario to prevent such an outcome, but the Barbadians will have to wait another year before they know what monies, if any, they will get.

After having their case dismissed six months ago, the Barbadians, led by main plaintiffs Richard Mandeville, Wismar Greaves and Anthony Bowen, filed an appeal on seven grounds, including that Manulife owed no duty of care or fiduciary duty to the Barbados policyholders, and none of them was entitled to be paid damages.

It has emerged that some measure of hope has been given to the Bajans after the trial judge concluded that if he was wrong to dismiss the action, Manulife would have to pay the more than $155 million in damages.

This was confirmed today by the former policyholders lead lawyer on the case, Harvey Strosberg, Q.C., simultaneously with information provided to Barbados TODAY showing the grounds of Manulife’s cross-appeal.

“The trial is finished except for interest and costs. There will be no trial about the damages. If the class is successful on its appeal, Manulife will pay some amount to the class members,” the Canadian attorney said today.

“Manulife filed a cross-appeal. Manulife said that judge was wrong in concluding that Manulife must pay the class members about CAN $80 million if he was wrong about dismissing the action. Hence, the cross-appeal about damages,” he noted.

While the appeal is expected to be argued for three days in either October or November this year, it will be some time before a decision is made, meaning another extended wait for the former policyholders.

“The liability of Manulife and the amount of damages, if any, remain to be determined by the Court of Appeal. The date of the appeal has not been fixed but we expect that it will be heard in October or November of this year. The Court of Appeal will probably reserve its decision so that it may be early in 2014 before we know the outcome of the appeal,” Strosberg said. Manulife in its five-page cross appeal notice said the action was a backup plan.

“The respondent cross-appeals, if necessary, in the event that the appeal against the trial judge’s finding of no liability, as set out in the judgment of the Honourable Justice Newbould dated August 1, 2012, is allowed,” it said in the notice.

“In the cross-appeal, the respondent asks that the trial judge’s provisional assessment of damages be set aside and that nil damages be awarded or, alternatively, that damages be awarded in a lesser amount than the trial judge provisionally calculated.”

Manulife’s grounds for cross-appeal included that “the trial judge erred … in his determination that damages would have been payable … had he concluded that the respondent was liable; in his provisional quantification of the damages payable … in his determination that damages should be quantified in connection with the 1996 Transfer based upon a demutualisation benefit formula that did not exist in 1996 and was not developed and legally approved until 1999”.

Manulife said the judge was also wrong “in his determination that damages equivalent to demutualisation benefits should be awarded, when Class members were, under applicable laws and (Manulife’s) demutualisation plan in 1999, legally precluded from receiving demutualisation benefits”, and also on the basis of his “determining that damages should be calculated in an amount higher than the amount explicitly requested by two of the three representative plaintiffs at the hearing before the Barbados Supervisor of Insurance in 1996”, and “in determining that damages should be calculated based on incorrect factual assumptions that the Appellants did not establish at trial”.

The company also argued that the calculation of damages was tantamount to overcompensation of the former Barbadian policyholders.

In their own appeal the Barbadians asked for the trial dismissal to be overturned on seven major grounds, including that the judge was wrong when he disagreed “that Manulife did not have the power to extinguish the rights of the class without compensation”. (SC)

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