WWW.LEXPERT.CA
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2018
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LEXPERT 31
Lowenstein, Larry P. Osler, Hoskin & Harcourt LLP
(416) 862-6454 llowenstein@osler.com
Mr. Lowenstein is a senior litigation partner and former Chair of Osler
National Litigation Department. His practice focuses on complex litigation
and arbitrations at trial and on appeal. His recent engagements have involved
recognition and enforcement matters, class actions, corporate governance
matters, securities litigation and enforcement, fiduciary claims
and contested mergers & acquisitions.
Lisus, Jonathan C. Lax O'Sullivan Lisus Gottlieb LLP
(416) 598-7873 jlisus@counsel-toronto.com
Mr. Lisus focuses on commercial disputes as trial and appellate counsel in
courts across the country, including the Supreme Court. He is a Fellow of the
ACTL, IATL and a member of the Chief Justice of Ontario's Advisory Committee
on Professionalism.
Linder, QC, Peter T. Peacock Linder Halt & Mack LLP
(403) 296-2282 plinder@plhlaw.ca
Mr. Linder, QC, has been lead counsel on some of the most important cases
to have been adjudicated in Canada over the past 30 years. He handles
high-stakes litigation and arbitration cases with an aggressive and effective
approach to dispute resolution. He is ranked as one of the top 25 trial
lawyers in Canada and has been repeatedly designated as Lawyer
and Appellate Lawyer of the Year.
Leon, LSM, Jeffrey S. Bennett Jones LLP
(416) 777-7472 leonj@bennettjones.com
Mr. Leon is a partner at Bennett Jones and President of the American College
of Trial Lawyers. Practising for over 35 years, he has a general domestic,
international and cross-border litigation practice with a focus on business
litigation. He acts in a range of litigation matters, including securities,
commercial, corporate, class actions, product liability, professional
negligence and healthcare.
Lenz, QC, Kenneth T. Bennett Jones LLP
(403) 298-3317 lenzk@bennettjones.com
Co-head of the firm's litigation department, Mr. Lenz largely focuses on
insolvency and restructuring matters, including representing companies,
receivers, monitors, acquirors, creditors and financial institutions in
managing corporate reorganization and the realization of assets. He has
in recent years acted in the most significant restructurings in Alberta.
Lenczner, QC, Alan J. Lenczner Slaght Royce Smith Griffin LLP
(416) 865-3090 alenczner@litigate.com
Widely acknowledged as one of Canada's leading litigators, Mr. Lenczner
has applied his advocacy skills to yield precedent-setting decisions in nearly
every area of civil litigation. Drawing on 4 decades of experience in complex
litigation matters, he appears regularly before courts at all levels across the
country. He has appeared as counsel before the High Court & the Court of
Appeal in the UK.
LEXPERT-RANKED LAWYERS
cate that the record pace continued through the
first six months of 2018.
Still, the statistics from the US bear cautious an-
alysis. "e US and Canada have different statu-
tory regimes and different jurisprudence, so even
when there are consistent external factors, these
factors can have inconsistent consequences on
either side of the border," Milne-Smith says.
It is true that the proportion of Canadian statu-
tory secondary market cases that originated with
parallel filings in the US have risen steadily, con-
stituting 48 per cent of filings between 2011 and
2017 compared to 37 per cent between 2006 and
2010. e fact that there were no such filings in
Canada in 2017, therefore, bucks the trend, and
undoubtedly contributed to the low number of fil-
ings in that year.
Nonetheless, the securities class action litigation
risk for companies listed in Canada is substantially
lower than for companies listed on major US ex-
changes — and the gap has widened over the last
three years. "In short, while the much larger num-
ber of annual filings in the US is partly a function
of the larger number of listed companies, it is also
due to the substantially greater probability of a
company being sued in the US," wrote the authors
of NERA's 2017 Canadian report.
Finally, federal merger-objection filings —
sometimes called "strike suits" — dominated in
the US, growing for a record fih straight year and
representing some 46 per cent of filings. In con-
trast, strike suits have not fared well in Canada: in
2015, in eratechnologies Inc. v. 121851 Canada
Inc., 2015 SCC 18, a Québec case that was a fore-
runner to the trilogy and featured a leave provision
that corresponded to the Ontario legislation that
was the subject of the trilogy, the SCC ruled that
leave was intended to be a "meaningful screening
mechanism" designed to prevent "costly strike
suits with little chance of success."
ere are other factors that make securities class
actions less attractive in Canada as well. For ex-
ample, the US is a no-cost regime; in Canada, only
British Columbia is a no-cost regime while Québec
caps costs. In the other provinces, unsuccessful
parties on leave applications bear the costs. "Some
companies have been very successful at mounting
a massive defence to leave motions that requires
a response involving huge resources of time and
money," Robb says. "So, even in a good case, our as-
sessment of the economics has to build in that risk."
Damages are also treated differently in the two
jurisdictions. In Canada, if a stock price recovers,
damages are erased; the US, however, has a "snap-
shot" approach that fixes damages at a certain
time. "So whenever you see a stock drop in the US,
you tend to see cases filed," Robb says. "We're more
cautious here in Canada."
Finally, the U.S. Securities and Exchange Com-
