Commercial Litigation
Our Group
The Commercial Litigation Group combines the expertise and experience of approximately 125 partners and associates across the country. We have experience litigating — and winning — cases in virtually all areas of general commercial litigation. Our partners have experience at all court levels, trial and appellate, across Canada. Having Miller Thomson at your side gives you instant credibility in negotiating favourable resolutions of litigation and maximum confidence in going to trial if a settlement cannot be achieved.
Our Expertise and Services
Our Commercial Litigation Department has the breadth and depth across every major office in Canada to allow the firm to represent clients in large, “bet-the-farm” litigation. Our focus on specialization allows us to bring the right people with the right skillsets to the problem at hand, and to work across disciplines when needed. At the same time, we have remained true to our roots in providing clients, big and small, with the most timely and cost-effective litigation solutions.
We value you as our client, whether your litigation involves a multi-week, multi-million dollar trial or an ordinary-course matter that can be settled immediately and cost-effectively with some sensible advice.
We appreciate litigation that is important to you can involve difficult decisions in a sometimes unfamiliar legal environment. We know the litigation is your litigation — not ours — and will keep you advised of major steps along the way. Our job is to allow you to reach the right decision for you or your organization.
In addition to dealing with active cases before the courts and before arbitral tribunals, many clients look to us for pro-active advice on cutting-edge legal issues as they evolve. Our partners and associates frequently write and speak on such issues.
Related Services
- Insurance Litigation
- Professional Liability disputes
- Securities Litigation
- Mediation and Arbitration
- Shareholder disputes
- Commercial debt recovery
Our Experience
Aboriginal Law
Montana Band v. Canada [2006] F.C. 334 (Successful 100+ day trial dealing with entitlement of Indian band to block of land which has valuable oil and gas reserves on it)
Arbitration
Ensco Inc. v. MOEE (Successful recovery after 25+ day arbitration of $5,400,000 by contractor in relation to disputed extras/delay claims in relation to first cleanup of a PCB contaminated site in Canada)
Canadian Alcohol v. Marsh & McLennan (Arbitration before R.E. Holland). (Successful defence of a 20 day arbitration of $25 million business interruption claim involving outage at large processing plant)
Regularly acting (in conjunction with our labour department) in representing many NHL teams in salary arbitrations with their players.
ICC arbitrations involving process engineering, construction and trade related questions.
Class Proceedings
DuMoulin v. Ontario [2006] O.R. No. 3961 (Successful defence denying certification of “toxic mould” claim in relation to Newmarket court house)
Haskett v. Equifax Canada Inc. [2001] O.J. No 4949 rev’d in part (2003) 63 OLR. (2d) 577 (C.A.) (Action against credit reporting agency)
Mondor v. Fisherman [2002] O.J. No. 185. (Representation of securities dealer in alleged international securities fraud related to YBM Magnex)
Logan v. Harper [2001] O.J. No. 3744 (Class Proceeding involving allegedly defective surgical implants)
Despault v. King West Village (2001) 10 C.P.C. (5th) 89 (Successful certification of class proceeding against condominium developer)
Samos Investments v. Pattison et al (2000) 190 D.L.R. (4th) 448 (B.C.C.A.) (class proceeding involving alleged improper related party transactions taken as part of a privatization one of the largest coal port facility in Canada)
Rosedale Motors Inc. v. PetroCanada Inc. (1998) 42 O.R. (3d) 776, rev’d [2001] O.J. No. 5368 (Class Proceeding by franchisees)
Competition Law/Economic Torts
Air Canada v. Alberta [2005] O.R. No. 5512 (Representation of individual in claim of alleged business espionage)
Qatar (Monetary Agency) v. Himadeh (Ont. Ct., January 5, 1996) (Successful defence at trial and appeal of action against former advisor to the Qatar Minister of Finance and Petroleum alleging misappropriation of over $6,000,000. Leave to appeal denied to Supreme Court of Canada, 104 O.A.C. 239)
McKinlay Transport v.MTIRB (1996) C.L.L.C. 210-021 (Successful defence after 30 day trial of $30,000,000 conspiracy action involving a claim against a number of individuals in the trucking industry)
Constitutional/Administrative Law
Information and Privacy Commission of Ontario v. City of Toronto Economic Development Corp. et al (2008) 292 D.L.R. (4th) 706 (Ont. C.A.) (Successful appeal dealing with Freedom of Information wherein City of Toronto required to disclose information under the Municipal Freedom of Information and Protection of Privacy Act)
Christie v. British Columbia [2005] B.C.J. No. 2745 (B.C.C.A.) (Successful application striking down an unconstitutional B.C. sales tax on lawyer’s fees)
Bennett Environmental Inc. v. Canada (Minister of the Environment) [2004] F.C.J. No. 1393 (Quashing of Minister’s decision to require environmental assessment with the result that multi-million dollar client investment in project was preserved)
Byl v. Ontario (2003) 67 O.R. (3d) 588 and [2004] O.J. No. 646 (Quashing of government decision to cease funding to a social agency)
Carter v. Alberta [2002] A.J. No. 1543 (C.A.) (Successful representation of Government of Alberta upholding its ability to indemnify cabinet minister from libel claim)
Ontario English Catholic Teachers Assoc. v. Ontario (Attorney General) [2001] S.C.R. 470 (Constitutionality of funding formula for separate school system)
ExpressVu Inc. et al. v. NII Norsat International Inc. et al. (1997) 134 F.T.R. 264; [1998] 1 F.C. 245 (F.C.T.D.),1. (1997) 222 N.R. 213; 141 F.T.R. 240 (note) (F.C.A.)
Ontario Home Builder Ass’n v. York Region Board of Education [1996] 2 S.C.R. 929 (S.C.C.) (Successful upholding of constitutionality of educational levies by school board client)
Québec (Procurer general) v.Téléphone Guèvremont Inc. (1994)112 D.L.R. (4th) 127, 168 N.R. 7 (S.C.C.)
Contract
Angoss II Partnership v. Trifox Inc. (1998) 37 B.L.R. 256 (Claim/Counterclaim involving software licence and quality of software supplied under licence. Miller Thomson LLP’s client was awarded $4,400,000 in damages plus interest.)
Texaco v. PetroCanada et al [1998] O.J. No. 6377 (Defence in action alleging improper interference in distributorship relationship. Damage claim in the tens to hundreds of million of dollars. Action dismissed in total with costs after 60+ day trial by Mr. Justice McDonald in June of 1998)
Bakorp Management v. Pepsi-Cola Canada and Crown, Cork & Seal Canada Ltd. [1994] O.J. No. 873 (Summary judgment dismissal of $200,000,000 claim against can manufacturer relating to operation and sale of Pepsi-Cola bottler for Southern Ontario)
Opron Construction v. Alberta [1994] A.J. No. 224 (14 month trial leading to precedent setting decision as obligation of good faith on performance of contracts)
McNicol v. Insurance Unlimited (Calgary) et al (1993) 5 Alta. L.R. (3d) 159 (QB) (Successful denial of coverage on behalf of multiple insurers pursuant to a builder risk claim involving a multi-million dollar construction claim. This included the successful defence of a third party claim advanced by the broker against the insurers)
Environmental
Neste Canada v. Reichhold [2005] (35 day trial — recovery of $5.93 million in case involving alleged soil and water contamination at a former formaldehyde plant)
862590 Ontario v. PetroCanada [2000] O.J. N0.984 (dismissal of contaminated land claim)
Insolvency and Banking Law
Re Air Canada (2003) 45 C.B.R. (4th) 13 (Scope of set-off rights in a CCAA restructuring)
Re AT&T Canada Inc [2003] O.J. No. 5086 (Equitable subordination of shareholder related claims in an insolvency)
Re Air Canada [2003] O.J. No. 5525 (Impact of CCAA filing on letters of credit totalling $21 million given as security for residual value of aircraft).
Isgard International Corp. v. Citibank Canada (1997) 46 C.B.R. 210 (Successful defence of financial institution in improvident sale claim — approximately $10,000,000 claimed)
Bank of Nova Scotia v. Freure Village (1996) 40 C.B.R. (3d) 274. (Successful enforcement of bank security through court appointed receivership -— $13,000,000 recovered)
Montréal Trust v. Birmingham Lodge (1995) 24 O.R. (3d) 97 (C.A.) (Successful defence on guarantee) See also the profile of our Insolvency and Restructuring department on our Web site
Oil and Gas
Murphy Oil v. Predator [2006] A.J. No. 207 (C.A.) and [2006] A.J. No. 1156 (Successful summary judgment — dismissing counterclaim in action involving a major natural gas development and recovery of $27 million)
Petrowest Terminals Corp. v. Imperial Oil Limited et al (1998) Alberta (Successful extrication of a third party in the context of an oil storage loss exceeding $1 million)
Suncor Canada Ltd. V. Phillips Cables et al (1993) (Alta QB) (Successful settlement of a refinery claim exceeding $121 million arising from a fire loss)
Esso Resources Canada et al v. Stearns Catalytic Ltd. et al (1989) Alta. (Successful resolution of a refinery claim exceeding $1 billion arising in the context of a major refinery fire)
Husky Oil et al v. Lethbridge Iron Works et al Alta QB. (Successful extrication of a supplier from a complex multi-million dollar litigation involving post tension cable construction issues)
Real Estate/Landlord and Tenant Law
MTCC No. 1250 v. Mastercraft Group Inc. (2009) 82 R.P.R. (4th) 1 (Ont. C.A.) (Successful appeal by Condominium Corporation against developer dealing with common elements and interpretation of Condominium Act resulting in a judgment in excess of $2 million)
1175777 Ontario v. Magna International Inc. [2006] Can LII 39907 (Successful defence after a 16 day trial of action claiming over $20 million for breach of an alleged lease)
Musqueam Indian Band v. Glass [2000] 2 S.C.R. 633 (Principles to be applied in fixing rent under long-term land lease)
Chatham Centre Mall Ltd. v. A&P Properties (1994) 40 R.P.R. (2d) 124 (and three similar related actions). (Successful defences of claims alleging either that a specific performance covenant existed in a lease or claims that explicit continuous operation covenants should be specifically performed by way of mandatory injunction. All cases dismissed.)
Securities/Investment Dealers
British Columbia (Securities Commission) v. Pacific International (125 day hearing before British Columbia Securities Commission resulting in all claims being dismissed against Miller Thomson client)
Hunt v. TD Securities (2002) 66 O.R. (3d) 481 (C.A.) (successful defense of stockbrv.Salim Damji at al (Ont. Sup. Ct, 2002 unreported — appointment of Receiver to investigate and recover sums in excess of $70 million defrauded from investors)
Research Capital v. Nowack [2000] O.J. No. 3814, aff’d [2002] O.J. No. 4375 (Dismissal of claim of breach of fiduciary duty against investment dealer)
Carom v. Bre-X Minerals Ltd. (1999) 44 O.R. (3d) 173 (Defence of investment dealer in multi-billion dollar proposed class proceeding — certification of proceeding dismissed).
G. Farkas Family Trust v. CIBC Wood Gundy [1999] O.J. No. 4386 dismissal of claim of broker negligence)
Primewest Energy Trust v. Orion Energy Trust et al (1999) Carswell Alta 894 (Alta QB) (Successful establishment of a unit holders rights plan in the context of a hostile takeover)
Retrieve Resourcing v. Canaccord Capital Corp. [1994] B.C.J. No. 1897 (Successful defence after 35 day trial of securities dealer in relation to “market out” clause in best efforts financing)
Shareholder Remedies
Fedel v. Tan (2008), 93 O.R. (3d) 274 — (Successful claim for oppression remedy under the Business Corporations Act (Ontario) leading to minority shareholder being awarded more than $2 million)
Fédération des producteurs acéricoles du Québec v. Regroupement pour la commercialisation des produits de l’érable inc. 2006 SCC 50 (Successful representation leading to wind up of corporation and distribution of $22 million of assets to client)
Confidential Client — recovery of $3.5 million for former senior executive/shareholder of health products company following two day mediation before retired judge.
Angela Buset v. Buset Apartments [2003] O.J. No. 3472 (Dismissal of appeal in oppression remedy action involving generational dispute in real estate holding company)
Sutherland v. Birks (2003) 65 O.R. (3d) 812 (C.A.) (Oppression remedy claims between siblings who were heirs to a founder of a prominent Canadian retail chain)
Northwest Sports v. Arthur Griffiths and Orca Bay Sports and Entertainment [1999] B.C.J. No. 637 (defense of proceeding alleging oppression in going private transaction of corporation that owned Vancouver Canuck hockey team)
820009 Ontario Limited v. Harold E. Ballard (1991) 3 B.L.R. (2d) 109 (Shareholder dispute between father and son relating to the holding company that controlled Maple Leaf Gardens and the Toronto Maple Leafs)
Trademark
Veuve Clicquot Ponsardin and Les Boutiques Cliquot Ltée. [2006] 15 C.R. 284 (Successful representation of client in precedent setting Supreme Court of Canada Case)
Trusts, Estates, Pensions and Charities
Pecore v. Pecore [2007] 1 S.C.R. 795 — (Decision clarified the law of Resulting Trusts and Presumption of Advancement in Canada)
Bloorview Children’s Foundation v. Bloorview McMillan Hospital (2002) 22 B.L.R (3d) 182 (Dispute over control of a large charitable foundation)
Hooper v. Hooper (2002) 59 O.R. (3d) 707 (Whether pensions can be seized to secure support arrears arising from marital breakdown)
Tort
Hanke v. Resurfice Corp., [2007] 1 S.C.R. 333 (Successful appeal in which trial judgment dismissing claim against client in product liability action was restored)
State Plan NW 341 — Canlan Ice Sports Corp [2001] B.C.J. No. 1723 aff’d [2003] B.C.J. No. 2142 (Precedent setting judgment in excess of $3 million against municipality for negligent inspection of condominium’s construction)
Kealey v. Berezowski (1996) 30 O.R. (3d) 37 (successful recovery of damages for wrongful pregnancy due to medical negligence)
Toneguzzo-Norwell v. Burnaby Hospital [1994] 1 S.C.R. 114 (Successful appeal restoring trial judgment of $1.9 million in medical negligence action)
B.G. Checo v. British Columbia Hydro[1993] 1 S.C.R. 12 (Interaction of contract law and law of negligent misrepresentation)
Rainbow Industrial Caterers v. CNR [1991] 3 S.C.R. 3 (Negligent misrepresentation in relation to contract formation)