EXHIBIT 5(c)
OPINION OF TORYS LLP REGARDING VALIDITY UNDER CANADIAN LAW OF THE SUBORDINATED
GUARANTEE
TORYS LLP
Suite 3000
79 Wellington St. W.
Box 270, TD Centre
Toronto, Ontario
M5K 1N2 Canada
tel 416.865.0040
fax 416.865.7380
www.torys.com
November 25, 2008
Manulife Financial Corporation
200 Bloor Street East
Toronto, Ontario
Canada M4W 1E5
Dear Sirs/Mesdames:
RE: GUARANTEE OF JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY MVAIS
We act in Canada for Manulife Financial Corporation, a Canadian corporation
("MFC") and indirect parent of John Hancock Variable Life Insurance Company, a
Massachusetts corporation (the "Company"). This opinion is being delivered to
you in connection with the joint Registration Statement on Form F-3 (the
"Registration Statement") filed by MFC and the Company with the Securities and
Exchange Commission (the "Commission") on November 25, 2008. The Registration
Statement relates to (a) the issuance and sale from time to time, pursuant to
Rule 415 of the General Rules and Regulations promulgated under the Securities
Act of 1933, as amended (the "Securities Act"), of up to an aggregate of
$50,000,000 of the Company's market value adjustment interests (the "MVAIs")
under deferred annuity contracts (the "Contracts"), and (b) the full and
unconditional subordinated guarantee by MFC of the Company's payment obligations
with respect to the portion of the Contracts selected by the holders to earn a
guaranteed fixed return for a specified period. The MVAIs are to be (i) issued
under forms of the Contracts between the Company and its customers; and (ii)
guaranteed by MFC pursuant to the terms of a Subordinated Guarantee dated June
29, 2005 by MFC (the "Subordinated Guarantee"). A form of the Contracts and the
Subordinated Guarantee are being filed as exhibits to the Registration
Statement.
As such counsel, we have participated in the preparation of (i) the portions of
the Registration Statement relating to MFC and the Subordinated Guarantee, and
(ii) the Subordinated Guarantee, and, where applicable, have examined executed
copies of such documents.
We have made such investigations and examined originals or copies, certified or
otherwise identified to our satisfaction, of such certificates of public
officials and of such other certificates, documents and records as we have
considered necessary or relevant for the purposes of the opinions hereinafter
expressed, including, (i) MFC's letters patent, as currently in effect, (ii)
MFC's by-laws, as currently in effect, (iii) resolutions adopted by the Board of
Directors of MFC relating to the filing of the Registration Statement,
authorization of the Subordinated Guarantee and related matters, (iv) a
certificate of an officer of MFC as to certain factual matters (the "MFC
Officer's Certificate"), and (v) a certificate of confirmation dated November
18, 2008 (the "Certificate of Confirmation") in respect of MFC pursuant to the
Insurance Companies Act (Canada) (the "ICA").
For the purposes of this opinion, we have assumed, with respect to all documents
examined by us, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to authentic original
documents of all documents submitted to us as certified, conformed, telecopied
or photostatic copies. We have also assumed that the Certificate of Confirmation
continues to be accurate as of the date hereof. We have relied
OPINION OF TORYS LLP REGARDING VALIDITY UNDER CANADIAN LAW OF THE SUBORDINATED
GUARANTEE
upon the certificates referred to above with respect to the accuracy of the
factual matters contained therein; while we have not performed any independent
check or verification of such factual matters, nothing has come to our attention
during our participation with respect to the Registration Statement which leads
us to believe such certificates are incorrect. We have also assumed that the
Subordinated Guarantee is enforceable by holders, owners, annuitants and
beneficiaries under the Contracts despite the fact that such persons are not
party to the Subordinated Guarantee.
The Subordinated Guarantee is expressed to be governed by the laws of the
Commonwealth of Massachusetts ("Massachusetts Law"). We have not considered the
legal effect of the terms of the Subordinated Guarantee under Massachusetts Law,
we have made no investigation into such law as a basis for the opinions
expressed herein and we do not express any opinion relating to the Subordinated
Guarantee under Massachusetts Law. This opinion is limited to the laws of the
Province of Ontario and the federal laws of Canada applicable therein, including
the rules and regulations thereunder, as in effect on the date hereof. Insofar
as the opinions expressed herein relate to matters governed by the laws of the
United States of America or the Commonwealth of Massachusetts, we have relied
upon the opinion of Arnold R. Bergman Vice President and Chief Counsel for the
Company, dated November 25, 2008, filed as Exhibit 5(b) to the Registration
Statement.
In giving the opinion in paragraph 1 as to the corporate existence of MFC, we
have relied exclusively on the Certificate of Confirmation and MFC Officer's
Certificate.
The opinions set forth in paragraphs 4 and 5 below are subject to the following
exceptions, limitations and qualifications, as applicable: (i) the effect of
bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance,
moratorium or other similar laws of general application affecting the
enforcement of the rights and remedies of creditors generally; (ii) the
availability of equitable remedies is in the discretion of a court of competent
jurisdiction; (iii) the unenforceability under certain circumstances, under
applicable law or court decisions of provisions providing for the
indemnification of, or contribution to, a party with respect to a liability
where such indemnification or contribution is contrary to public policy; (iv) we
express no opinion concerning the enforceability of any waiver of rights or
defenses with respect to stay, extension or usury laws; (v) we express no
opinion as to the enforceability in any particular circumstance, of any
provisions of the Subordinated Guarantee which provide for the severability of
illegal or unenforceable provisions; (vi) we express no opinion as to the
enforceability of, nor as to the manner in which an Ontario court would
interpret and apply, any provision of the Subordinated Guarantee which refers
to, incorporates by reference, or requires compliance with, any law, statute,
rule or regulation of Massachusetts Law or of the United States of America; and
(vii) under the Currency Act (Canada), an Ontario Court may only award judgment
in Canadian dollars. Such judgment may be based on a rate of exchange determined
in accordance with section 121 of the Courts of Justice Act (Ontario), which
rate of exchange may be the rate in existence on a day other than the day of
payment of such judgment.
Where an opinion is expressed to be to our knowledge, it is based solely on our
current actual knowledge acquired after a review of our active files relating to
MFC and consideration by those partners and associates of our firm who have been
directly involved in this transaction or who are involved in other active files
for MFC, but without further independent investigation or inquiry.
Based on and subject to the foregoing, we are of the opinion that:
1. MFC has been incorporated and is existing under the ICA.
2. MFC has the corporate power and capacity to enter into and perform its
obligations under the Subordinated Guarantee.
3. The Subordinated Guarantee has been duly authorized by MFC.
4. If an action or proceeding were brought in a court of competent
jurisdiction in the Province of Ontario (an "Ontario Court") to
enforce the Subordinated Guarantee and the Ontario Court were to apply
the laws of Ontario to govern and interpret the Subordinated Guarantee
(either because the Ontario Court finds that Ontario law is the proper
law of the Subordinated Guarantee contrary to its express provisions
which stipulate that it will be governed and interpreted by
Massachusetts Law or because Massachusetts Law is not proven to the
Ontario Court in such action),
OPINION OF TORYS LLP REGARDING VALIDITY UNDER CANADIAN LAW OF THE SUBORDINATED
GUARANTEE
when each of the Contracts has been issued and sold in accordance with
the terms of the Contracts and the Subordinated Guarantee, MFC's
obligations under the Subordinated Guarantee with respect to such
Contracts would constitute legal, valid and binding obligations of
MFC, enforceable against MFC in accordance with the terms of the
Subordinated Guarantee.
5. The laws of the Province of Ontario and the federal laws of Canada
applicable therein permit an action to be brought in an Ontario Court
on a final and conclusive judgment in personam for a fixed sum of
money of a State or Federal Court in the City of Boston, Commonwealth
of Massachusetts (a "Massachusetts Court") that is subsisting and
unsatisfied respecting the enforcement of the Subordinated Guarantee
and that is not impeachable as void or voidable under Massachusetts
Law if: (a) such judgment was not obtained by fraud or in a manner
contrary to natural justice and the enforcement thereof would not be
inconsistent with public policy as such term is applied by an Ontario
Court, or contrary to any order made by the Attorney General of Canada
under the Foreign Extraterritorial Measures Act (Canada) or by the
Competition Tribunal under the Competition Act (Canada) in respect of
certain judgments, laws and directives having effect on competition in
Canada; (b) the enforcement of such judgment does not constitute,
directly or indirectly, the enforcement of foreign revenue or penal
laws; (c) the action to enforce such judgment is commenced within the
applicable limitation period; and (d) a court rendering such judgment
had jurisdiction over MFC as recognized by the courts of the Province
of Ontario (in our opinion, submission under the provisions of the
Subordinated Guarantee to the non-exclusive jurisdiction of a
Massachusetts Court will be sufficient for this purpose). Based on the
facts of which we have knowledge, in our opinion, there are no reasons
under the laws of the Province of Ontario or the federal laws of
Canada applicable therein for avoiding recognition of judgments of a
Massachusetts Court under the Subordinated Guarantee based on public
policy, as that term is applied by an Ontario Court.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, to the reference to this opinion under the captions
"Legal Opinions" and "Enforcement of Judgments" and to the reference to our firm
name under the caption "Enforcement of Judgments" in the prospectus filed as
part of the Registration Statement for the registration of the MVAIs and the
Subordinated Guarantee. In giving this consent, we do not thereby admit that we
are included in the category of persons whose consent is required by the
Securities Act.
Yours truly,
/s/ TORYS LLP
DAS//RJC//JR