Garry brian Sansome Plaintiff And: deon hancock Defendant, 2021 NLSC 58

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Sansome v. Hancock , 2021 NLSC 58 Date : May 6, 2021 Docket : 201204G0051 Between: Garry brian Sansome Plaintiff And: deon hancock Defendant Before: Justice Daniel M. Boone Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: April 21, 2021

Summary: The Plaintiff and Defendant were both insurance agents. The Plaintiff worked in the Defendant’s agency. The Plaintiff’s agency contracts with two insurers were cancelled following his declaration of bankruptcy. The Plaintiff sued the Defendant, alleging that the Defendant had not been properly licensed as an insurance agent at the material time. Both parties applied for

summary trial. The Court found that there was no genuine issue for trial because the status of the Defendant under the statutory licensing scheme could not have affected the Plaintiff. The Court dismissed the action. Appearances: Garry Sansome Appearing on his own behalf

Robby D. Ash Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Sansome v. Rubens, 2020 NLSC 157; Sansome v. Sheppard, 2019 NLSC 237; Financial Consultants Ltd. v.Industrial Alliance Insurance and Financial Services Inc. (February 21, 2019), Corner Brook 201504G0183 (N.L. S.C. (T.D.)); Hryniakv. Mauldin, 2014 SCC 7; Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317,405 A.P.R. 317 (Nfld. S.C. (T.D.)); Brook Construction

(2007) Inc. v. North Atlantic Cement and Construction Ltd., 2020 NLCA 42;Sansome v. Hancock, 2012 NLTD(G) 131 STATUTES CONSIDERED: Insurance Adjusters, Agents and Brokers Act, R.S.N.L. 1990, c. I-9, s. 45 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] Deon Hancock was a life insurance agent. In 1997, he was appointed by Industrial Alliance Life Insurance Company(“Industrial Alliance”) as its Managing General Agent in Newfoundland and Labrador.

Hancock was responsible for organizing a salesforce within the province for Industrial Alliance. He recruited Garry Sansome, a licensed life insurance agent, to be part of that salesforce. [2] Sansome signed an agent’s contract with Industrial Alliance in 1998.

Later, Sansome incorporated a company, FinancialConsultants Inc., through which he operated part of his business; that company signed an agent’s contract with Industrial Alliance in2000. [3] Industrial Alliance terminated both of those agency contracts in 2010. [4] At around the same time, the Plaintiff declared bankruptcy and became disabled and either lost or surrendered his license as aninsurance agent. The relationship between the Plaintiff and the Defendant, and between the Plaintiff and Manulife Financial, anotherinsurer for whom the Plaintiff acted as agent, ended.

The Plaintiff has initiated, or caused to be initiated, several actions in which he hasmade claims arising out of this period in his life. These actions include this one, as well as the following: • 201204G0050; Garry Sansome v. Industrial Alliance - The Plaintiff claimed damages in his personal capacity resulting from thetermination of the Financial Consultants Ltd. agent’s contract. This Court determined that the Plaintiff’s claim should be struck for wantof a cause of action. • 201304G0059; Garry Sansome v. Mark Rubens - The Plaintiff claimed that a medical report prepared by Dr.

Rubens for Mr.Sansome’s disability insurer was carried out without his consent, contained defamatory remarks, and was negligently prepared. ThisCourt decided (Sansome v. Rubens, 2020 NLSC 157) that, although there was a negligent misstatement in the medical report, theemotional and financial losses suffered by the Plaintiff had taken place and were continuing prior to that breach and no compensable losscould be causally attributed to it.

Rather, significant physical health issues and the economic crisis in the investment market combined toevoke major stress and personal financial decisions that led to his declaration of bankruptcy. • 201504G0261; Garry Sansome v. Scott Sheppard - The Plaintiff claimed that Mr. Sheppard breached an agreement under whichMr. Sheppard agreed to share commissions with the Plaintiff earned from servicing clients who had purchased Manulife financialservices products through the Plaintiff. This Court found (Sansome v. Sheppard, 2019 NLSC 237) after

summary trial that the Plaintiffand Financial Consultants Ltd. were automatically terminated in their respective roles as agent and key representative of Manulife whenMr. Sansome made an assignment in bankruptcy. Without Manulife’s written approval, Scott Shepherd could not represent FinancialConsultants Ltd. in its dealings with Manulife clients. Any dealings Scott Shepherd had at Garry Sansome’s request with any ofManulife’s customers after the bankruptcy were contrary to the Producer’s Agreement with Manulife and the Insurance Adjusters,Agents and Brokers Act, R.S.N.L. 1990, c.

I-9, s. 45 (the “Act”), and the contract between the parties was illegal and unenforceable. • 201504G0183; Financial Consultants Ltd. v. Industrial Alliance Insurance and Financial Services Inc. - The Plaintiff as the soleshareholder and director of Financial Services directed a solicitor to initiate an action against Industrial Alliance claiming that IndustrialAlliance had wrongfully terminated its agency contract. This Court (in Financial Consultants Ltd. v. Industrial Alliance Insurance andFinancial Services Inc. (February 21, 2019), Corner Brook 201504G0183 (N.L. S.C. (T.D.)) dismissed an application by Mr.

Sansome torepresent the corporate Plaintiff and decided that the action could only be continued if the corporate Plaintiff is represented by a solicitor. That action remains outstanding.

• 201904G0098; Garry Sansome v. Industrial Insurance and Financial Services Inc. - In that action, the Plaintiff claims that Industrial Alliance is vicariously liable for the damages that he claims against Mr. Hancock in this action.

I previously ordered that that action and this one will be heard together, with the evidence in one being evidence in the other. [ 5 ] It is clear from review of the pleadings in all of the actions that the Plaintiff believes that his career and income as an insurance agent ended because he was unfairly and unlawfully treated by Hancock and the insurers that the Plaintiff represented.

Those parties maintain that the Plaintiff’s career as an insurance agent ended because he was financially and physically unfit to hold an insurance agent’s license. [ 6 ] The Statement of Claim in this action has been amended at the Plaintiff’s request a number of times, but neither the cause of action on which the Plaintiff relies nor the factual allegations that he says ground those causes of action have ever been well defined. The Statement of Claim as last amended alleges that the Defendant was operating as an insurance agent without being duly licensed.

The Plaintiff claims that this conduct on the part of the Defendant caused him damage including loss of income and ancillary benefits, because the contract that he had with the Defendant was illegal and unenforceable, and the Defendant breached fiduciary duties owed to him.

He claims that the Court should punish the Defendant for his illegal conduct by awarding the Plaintiff compensatory and punitive damages. [ 7 ] The Defendant denies operating as an insurance agent while unlicensed, and in the alternative, says that even if he did operate his business under a business name not listed on his license for a brief period, then this conduct did not constitute breach of any fiduciary or contractual duty owed to the Plaintiff, and this conduct did not cause the Plaintiff any damage. [ 8 ] Each of the Plaintiff and the Defendant have applied under Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch.

D, Rule 17A for

summary trial and judgment in his favour. [ 9 ] The Plaintiff cannot succeed in this action. The Plaintiff alleges that the Defendant operated his business under a different name than that shown on his insurance agent’s license. Even if the Plaintiff were able to establish that the Defendant did so, then he has not demonstrated any way in which such conduct caused any financial consequences for the Plaintiff. ISSUES 1. What are the claims advanced by the Plaintiff? 2. Is the question whether Hancock was in breach of the Insurance Adjusters, Agents and Brokers Act a genuine issue for trial? ANALYSIS

Summary Trial

Summary Trial Rules and Case Law [ 10 ] Both parties have applied for

summary trial and judgment in their favour under Rule 17A , the pertinent parts of which read as follows: 17A.01

Summary Trial 17A.01(1) A plaintiff or defendant may, after defence has been filed and at any time prior to the proceeding being placed on a trial list, apply to the Court with supporting affidavit material or other evidence for

summary trial seeking judgment on or dismissal of all or part of the claim in the statement of claim, as the case may be.17A.03 Disposition of Application 17A.03 Disposition of Application 17A.03(1) Where the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant

summary judgment accordingly. 17A.03(2) Where the Court decides that there is a genuine issue with respect to a claim or defence, a judge may nevertheless grant judgment in favour of any party, either upon an issue or generally, unless (

a) the judge is unable on the whole of the evidence before the Court on the application to find the facts necessary to decide the questions of fact or law; or (

b) it would be unjust to decide the issues on the application. 17A.03(4) Where the Court is satisfied that the only genuine issue is a question of law, the Court may determine the question and grant judgment accordingly.

[11] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada described

summary trial rules as important tools to ensuretimely, proportional, and cost-effective access to justice. The Supreme Court directed broad

interpretation of such rules in order toachieve those policy goals. [12] The principles that should be used in deciding applications for

summary trial have been considered by this Court and the Courtof Appeal on numerous occasions. In essence, the principles that guide a decision on the appropriateness of

summary trial are directed atdetermining whether the case involves any real issues that must be tried in order to effect justice between the parties and, if so, whetherthe record presented on

summary trial allows for sufficient fact finding to decide those issues in a just manner. Justice must not giveway to considerations of time or cost but if deliberate scrutiny shows that further time and procedural steps will not add to the fairness ofan outcome, then it would be unfair to allow the proceeding to continue. Application of

Summary Trial Principles to This Case There is no genuine issue for trial [13] Rule 17A.03(1) provides that the Court shall grant

summary judgment when satisfied that there is no genuine issue for trialpresented by a claim or defence. [14] In Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R.317 (Nfld. S.C.(T.D.)), Green, J., as he then was, set out the principles that should guide the Court in deciding a

summary trialapplication. In the ninth of those principles, Green, J. defined the meaning of a “genuine issue for trial”: 76. … 9. There will be a "genuine issue for trial" if the issue in question is not spurious and the issue relates to a material fact or point of lawthat is necessary to be decided to resolve the ultimate controversy between the parties.

Obviously, there will not be a genuine issue fortrial if the responding party can put forward no evidence that could constitute either a defence or a claim in law. [15] The question of whether there is a genuine issue for trial must be approached first by considering the pleadings. As Green,J.A., wrote for the majority of the Court of Appeal in Brook Construction

(2007) Inc. v. North Atlantic Cement and Construction Ltd.,2020 NLCA 42: 33 Just as in the case of a

summary judgment application under rule 17, the issues that may be dealt with on a

summary trialunder rule 17A must, of course, fall within the pleadings. This necessarily follows from the fact that the pleadings define the issues thatare in dispute.

It is those issues which must be scrutinized to determine whether there is a "genuine issue" for trial and may lead to anadjudication even if there is a genuine issue, provided the court can be persuaded that the record is sufficient and it is not otherwiseunfair to do so. [16] The parties have argued for some time whether the Plaintiff’s bankruptcy or disability was sufficient cause for the terminationof his relationship with the various insurers that he represented as an agent, or whether these terminations were caused by some wrongfulconduct on the part of the Defendant.

In the current version of the Statement of Claim the Plaintiff relies entirely on the allegation thatthe Defendant operated in breach of the Act. This is the pleading that must be examined in order to determine whether it pleads law orfact that, if opposed by the Defendant, become genuine issues for trial. [17] I note that the Plaintiff is representing himself in this proceeding without the assistance of legal counsel. I have taken that intoaccount in the review of his pleadings.

I have been concerned during case management that the Plaintiff might feel that the claimsagainst the Defendant are somehow cumulative through the amended pleadings. Therefore, although on this Application I am only goingto consider the current version of the Statement of Claim, I have reviewed the history of this file in order to satisfy myself that thePlaintiff is not leaving potentially viable claims behind because of momentary focus on only certain of his complaints. The initialStatement of Claim made vague claims for damages without identifying any wrongdoing on the part of the Defendant.

In a previousinterlocutory decision in this matter, Goodridge, J., as he then was, decided (Sansome v. Hancock, 2012 NLTD(G) 131) an application asto whether the Plaintiff could prosecute this action notwithstanding that he was an undischarged bankrupt. Goodridge J. characterizedthe claims presented as poorly worded and ambiguous, but found that he could discern claims for loss of reputation and a claim that theDefendant did something to put him out of reach of a disability benefit.

In 2013, the Plaintiff amended the Statement of Claim to stateclaims that the Defendant threatened to destroy his life, and then carried through on those threats by notifying Industrial Alliance of thePlaintiff’s bankruptcy and making defamatory statements, including that the Defendant had been fired for dishonesty. In 2014, thePlaintiff amended the Statement of Claim again. In that iteration of the Statement of Claim, the Plaintiff alleged that the Defendant hadbreached bankruptcy legislation by advising Industrial Alliance that he had declared bankruptcy in an effort to have his agencyterminated.

The Plaintiff also then added the claim that is now his focus, alleging that the Defendant was operating illegally. In 2019,the Plaintiff applied for an Order amending the Statement of Claim once again. This version of the Statement of Claim included theclaim that the Defendant caused him damage by operating illegally, but also included an allegation that the Defendant unethically orimproperly advised Industrial Alliance of his bankruptcy, leading to the termination of his agency contract.

This Application neverproceeded and therefore these amendments were never made. [18] The current record is insufficient for me to make any findings on the matters of fact that would be material to resolution ofthose former claims. However, from review of the material filed on these Applications and the factual findings in other reporteddecisions in other cases, I am sufficiently satisfied that by rendering a decision in this matter based only on the current Statement ofClaim I am not being unfair or unjust to this self-represented Plaintiff. The Plaintiff’s overriding complaint is that he suffered financial

losses when Manulife and Industrial Alliance terminated his agency contracts. However, he did declare personal bankruptcy and both of those agency contracts provided for automatic termination on the agent’s bankruptcy. It does not appear that the Plaintiff would have a viable claim against anyone in respect of an outcome that followed automatically from his own action or financial situation. [ 19 ] The Plaintiff alleges that the Defendant operated as an insurance agent in a manner that contravened the Act .

The Defendant was personally licensed under that statute, but, the Plaintiff alleges, operated his agency under the names Hancock Investment Management Inc., Alliance Financial Group Ltd., or Alliance Financial Group. The Plaintiff claims that the manner in which the Defendant operated his agency constituted breach of the following provisions of the Act : 14.

(2) An adjuster, adjustment company, representative, agent or broker shall not identify himself, herself or itself by a name other than that specified by the licence issued to him, her or it. 36.

Re holding out 36(1) A person shall not hold out as an adjuster or representative or act as an adjuster or representative unless that person holds a valid, existing licence under this Act authorizing that person to act in the capacity of an adjuster or representative. 36(2) A corporation or partnership shall not hold itself out as an adjustment company, agent or broker or so act unless it holds a valid subsisting licence under this Act authorizing it to act in the capacity of an adjustment company, agent or broker. 45.

(1) A natural person (

a) who not being the holder of a licence; or (

b) who while his or her licence is suspended, (c) [Rep. by 1996 c35 s47 ] acts as or represents or holds himself or herself out to be an adjuster, representative or student, or (

d) who, being the holder of a licence which is in force, by any means acts as or represents or holds himself or herself out to be an adjuster, representative or student in a name other than that stated in his or her licence, is guilty of an offence. [ 20 ] The Defendant denies that he conducted his insurance agency in breach of the Act . [ 21 ] The parties therefore disagree as to whether the Defendant breached the Act . However, the mere fact that they disagree does not render the topic of their disagreement a genuine issue for trial.

It will only constitute a genuine issue for trial if resolution of the question is necessary in order to adjudicate the ultimate controversy between the parties. [ 22 ] The Plaintiff alleges that by operating in breach of the statute, the Defendant breached a fiduciary duty owed to the Plaintiff.

However, the Plaintiff did not provide any evidence or legal theory supporting his position that the statute imposed a fiduciary duty owed to the Plaintiff on the Defendant. [ 23 ] The Plaintiff also says that the Defendant’s alleged breach of the statute rendered the agency contract between the Plaintiff and Industrial Alliance illegal and unenforceable. The evidence presented by both parties demonstrated that the Defendant signed the agency contract in his personal capacity as the Managing General Agent for Industrial Alliance in the province. This was the capacity in which he was licensed under the Act .

Even if the Defendant was operating under a corporate structure or trade name at the time that he executed the contract, this could not have impacted on the legality or enforceability of the Plaintiff’s contract with Industrial Alliance. Moreover, the termination of this contract and his financial losses that he claims resulted from termination are the real root of the Plaintiff’s complaints.

Therefore, a determination that the contract is unenforceable due to illegality would not assist the Plaintiff in his claim for damages. [ 24 ] Whether the Defendant operated his agency in breach of the Act is a matter between him and the regulator.

Answering that question does not affect the legal position of the Plaintiff and Defendant relative to each other. [ 25 ] Consequently, although the pleadings present a question that the Plaintiff and the Defendant answer differently, that question is not a genuine issue for trial. [ 26 ] I have read the Plaintiff’s pleadings generously, taking into account that he is self-represented. Both parties say that it is

appropriate for me to determine this matter through

summary trial. Although their agreement in this regard is not determinative, neither party identified any other evidence other than that already before the Court that could change the ultimate outcome of this proceeding. The Statement of Claim discloses no other factual allegations against the Defendant other than as relates to the Defendant’s status and operation as an insurance agent. It is therefore appropriate to dismiss the action in its entirety. [ 27 ] This case is unusual in that both parties have applied for

summary trial, and judgment accordingly, based on the same record. There really is only one point in disagreement in this matter, and that is whether Hancock operated in breach of the Act . As I have found that the question is not a genuine issue for trial, then in the outcome I should allow both Applications for

Summary Trial but, pursuant to Rule 17A.03(1), dismiss the Plaintiff’s action and enter judgment for the Defendant. CONCLUSION AND DISPOSITION [ 28 ] The only claim made by the Plaintiff in this proceeding fails to present a genuine issue for trial. Both parties’ applications for

summary trial are allowed. The action is dismissed. [ 29 ] The Defendant is entitled to his costs. He sought solicitor and client costs. However, I do not find any behavior on the part of the Plaintiff in the conduct of this proceeding that would justify an award of costs on an extraordinary basis. The Defendant, as the successful party, shall have his costs, taxed on Rule 55, Appendix 1, Column 3 of the Rules of the Supreme Court, 1986 . _____________________________ Daniel M. Boone Justice