Harold Geller

The defendants brought a motion to compel a plaintiff to answer questions refused during cross‑examination on an affidavit of documents in a negligence and misrepresentation action arising from investment advice relating to the commutation of pensions.

The refusals were based primarily on solicitor‑client privilege.

The court considered whether the plaintiff had impliedly waived privilege by placing his state of mind and instructions to former counsel in issue through his testimony and the pleadings, particularly in light of the defendants’ limitation period defence.

Balancing the principles of fairness in litigation with the protection of solicitor‑client privilege, the court held that privilege was deemed waived for certain communications relating to instructions to former counsel and advice about commuting the pension.

The plaintiff was ordered to answer three of the refusal questions and reattend for cross‑examination, while one refusal relating to quantification of damages was upheld.

The plaintiffs brought a motion to certify a class action against financial advisors and their dealer, alleging they systemically recommended a 'Leveraging Scheme' to borrow money to invest in mutual funds without regard to suitability.

The court granted certification, finding that the pleadings disclosed a cause of action, the class was identifiable, and common issues existed regarding the duty of care, breach of duty, and punitive damages.

The court declined to certify damages as a common issue, finding it required individual assessment.

The court also held that a class proceeding was preferable to the Ombudsman for Banking and Investment Services (OBSI) process, which lacked binding remedial powers and adequate investor participation.

A motion to introduce fresh evidence of an MFDA settlement was dismissed.