WWW.LEXPERT.CA
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2018
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LEXPERT 19
Fric, Laura K. Osler, Hoskin & Harcourt LLP
(416) 862-5899 lfric@osler.com
Ms. Fric has extensive advocacy experience, specializing in commercial and
securities litigation, and defending class actions. She has litigated major
class actions for many companies, including in the areas of securities and
secondary market misrepresentation claims, product liability, environmental,
and employment matters such as post-retirement benefits and overtime pay.
Fox, Mary Margaret Clyde & Co Canada LLP
(647) 789-4808 marymargaret.fox@clydeco.ca
Ms. Fox specializes in D&O liability insurance and professional E&O
insurance, providing coverage opinions, claims monitoring and advice on
policy wordings to a large number of insurers in Canada and in the US. In
2014, she was awarded the Ontario Bar Association's Award for Excellence
in Insurance Law.
Foreman, Jonathan Harrison Pensa LLP
(519) 661-6775 jforeman@harrisonpensa.com
Mr. Foreman is the leader of Harrison Pensa's plaintiffs' Class Action Group
with a focus on securities, competition law, consumer and product law
among other areas. He is an experienced litigator in all areas of class actions
practice, including class action trials. He is ranked in The Canadian Legal
Lexpert® Directory and was named one of "Lexpert Rising Stars: Leading
Lawyers Under 40" in 2013.
Fontaine, Jean Stikeman Elliott LLP
(514) 397-3337 jfontaine@stikeman.com
Mr. Fontaine is Head of the Montréal Litigation and Bankruptcy, Insolvency
& Restructuring Groups, as well as a member of the Montréal office's
Management Committee. His practice focuses in the areas of insolvency
and commercial litigation. Among other clients, he represents financial
institutions, trustees and public companies.
Fontaine, AdE, François Norton Rose Fulbright Canada LLP
(514) 847-4413 francois.fontaine@nortonrosefulbright.com
Mr. Fontaine is a senior partner at Norton Rose Fulbright in Canada.
He has a wealth of experience as a litigator and advocacy work in the area
of civil, corporate and commercial litigation, including white-collar crime and
regulatory investigations. He has appeared before all Québec courts and the
Supreme Court of Canada, as well as before various administrative tribunals
in Québec.
Flaherty, Patrick Chernos Flaherty Svonkin LLP
(416) 855-0403 pflaherty@cfscounsel.com
Mr. Flaherty's practice focuses on civil litigation, with an emphasis
on corporate/commercial, securities, class action defence, arbitration,
intellectual property, information technology and privacy. He has appeared
before all levels of court in Ontario and in the Federal Court of Canada,
and as counsel and an arbitrator, respectively, in both domestic
and international arbitrations.
LEXPERT-RANKED LAWYERS
ing out which predominates.
Chief Justice Rossiter noted that in Great-West
Life, the appeal court held that the services Emer-
gis provided were administrative as the payment
process "did not involve any independent decision
making" and involved "principally providing an
easier and more cost effective way" for Great-West
Life to pay out its drug benefits.
In essence, he wrote, the appeal court found the
decision whether to pay out came not from Emer-
gis but from the financial institution itself. Emer-
gis provided a computer system that allowed the
decision regarding a drug benefit claim to be made
in real time.
Building on that, he wrote that Visa's service
bundle should be characterized as a payment
platform and a system that facilitates payments
on its platform.
"e value added service which Visa provides to
CIBC is to relieve them of the need to keep track
of and then individually pay merchants for the
transactions paid for on credit by CIBC clients,"
he wrote. "Instead, Visa gives CIBC the ability to
offer its clients the option of paying for goods and
services on credit, while only needing to make one
lump sum payment to Visa at the end of every day
to settle the transactions."
At its most basic level, he said, "the benefit that
Visa offered CIBC was cost saving and logistical
simplification," which he held to be "quintessen-
tially administrative in nature."
CIBC had argued that Visa should be consid-
ered a financial institution under the so-called
"person at risk" clause, the saving provision that
allows companies otherwise excluded from be-
ing treated as financial institutions to be included
based on financial risk.
CIBC says Visa meets that definition because of
the indemnification it provides to participants in
its payment network, the corresponding exposure
to potential settlement losses, and its ongoing ex-
posure to potential foreign exchange losses.
Chief Justice Rossiter disagreed, saying it does
not appear as though Visa was actually financially
at risk as a result of the services it provided, at least
not to the extent necessary to satisfy the provision.
He noted that "Visa Inc. itself seemed to value
its own probability adjusted risk exposure as being
extremely low, with its 2009 filing with the SEC
valuing its potential exposure at less than $1 mil-
lion dollars."
He added that although Visa's theoretical risk
is high, "this extremely low valuation presumably
takes into account the risk-management tech-
niques which are employed" by the company.
He wrote that Visa's risk exposure is based on
events "which have an extremely low probability
of ever occurring," and concluded that "the purely
hypothetical remote risks that Visa Canada is sub-
