Lexpert Special Editions

Lexpert Special Edition on Litigation 2018

The Lexpert Special Editions profiles selected Lexpert-ranked lawyers whose focus is in Corporate, Infrastructure, Energy and Litigation law and relevant practices. It also includes feature articles on legal aspects of Canadian business issues.

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WWW.LEXPERT.CA | 2018 | 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-

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