News & Publications Results

In September 2004 the Canadian Bar Association offered an online CLE entitled "An Insider's Guide to Class Certification", presented by Rod Hayley and Ward Branch.

Since the mid-1980s litigation has been a fact of life for pension and employee benefit plan administrators and sponsors. However, there is a widely shared impression that the scope and frequency of such litigation is increasing. The purpose of this paper is to examine more closely this increase in pension and benefit litigation in Canada, and to comment on the role class action legislation may have had on this phenomenon.

Courts around the world have struggled in recent years to to balance two competing values: (1) providing a remedy to plaintiffs who have been injured by defamatory material posted on the Internet; and (2) ensuring that defendants do not face jeopardy in jurisdictions which lack any real or substantial connection to their activities and business.

There is a difference between true solicitor-client privilege (also called legal advice privilege) and litigation privilege (also called solicitor’s brief privilege). While certain fact patterns may give rise to both types of privilege (particularly when litigation is underway or within reasonable contemplation), there are key differences between the two, both in terms of the test for when they will apply, and the policies underpinning their existence.

Pension disputes are fertile ground for class actions. Where one member of a plan may not think it economic to bring a claim relating to the terms of that plan, a class action allows one plaintiff and one class action lawyer to aggregate all of these members’ claims into one proceeding. Given the monetary value of pension plans in Canada today, it can be expected that more and more pension disputes will be decided in the context of a class action.

The bitterness and desire for public recognition of the significant harm caused by the Chinese head tax led to a recent class action, seeking on behalf of those throughout Canada who were forced to pay the tax, as well as their surviving family members, a public apology, damages in excess of a billion dollars, and other remedies.

The corporate opportunity doctrine is a prophylactic and, some might say, restrictive rule which prohibits fiduciaries from taking for themselves or diverting to an associate or affiliate a maturing business opportunity which their beneficiary is actively pursuing, or which their beneficiary can be said to have some connection to or expectancy of, and which the beneficiary might have had an interest in pursuing had the fiduciary disclosed its existence to him or her.