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.
Issue link: https://digital.carswellmedia.com/i/216852
36 | Big Suits dollars to law firms who would act for them in the event they were sued. Shortly after, Look's directors and officers resigned from their positions. After being served with Look's action, the Look defendants brought three separate applications to require Look to advance them further legal costs for defending against the action. Justice Laurence Pattillo denied the defendants' advances, with the exception of one defendant (Dolgonos) who was entitled to interim advances. He held that s.124(4) of the Canada Business Corporations Act (CBCA) required the court to authorize the payment of advances when a company sues its present or former directors and officers. The Court could deny advances when a company established a strong prima facie case that the former director and/or officers acted in bad faith. The defendants other than Dolgonos appealed the decision denying them advances. The appeal was heard on May 28 and 29, 2013, by Justices Sharpe, MacPherson and Lauwers. The appellants argued that s. 124(4) of the CBCA did not apply as it was limited to derivative actions, but the Court of Appeal rejected this interpretation stating instead that the section applies to both claims by the corporation and derivative claims. The Court of Appeal believed that the strong prima facie case standard applied by Justice Pattillo struck "an appropriate balance" between "providing adequate protections and incentives to attract candidates who foster entrepreneurialism and to encourage responsible behaviour." The appeal court accepted that Justice Pattillo had "carefully considered the evidence alleging bad faith" and did not make "palpable and overriding errors" in his findings on the evidence that Look had made out strong prima facie case of mala fides. Goodmans LLP represented Look with a team of Benjamin Zarnett, David Conklin, and Peter Kolla. Peter Griffin, Matthew Sammon and Rory Gillis of Lenczner Slaght Royce Smith Griffin LLP represented Michael Cytryn- baum and First Fiscal Management Ltd. Edward Babin and Cynthia Spry of Babin Barristers LLP represented the applicant, Stuart Smith. Andrew Lewis of Paliare Roland Rosenberg Rothstein LLP represented the applicant, Jason Redman. Joseph Groia and Tatsiana Okun of Groia & Company Professional Corporation represented the applicants, Jolian Investments and Gerald McGoey. Peter Roy and Sean Grayson of Roy Elliott O'Connor LLP represented Alex Dolgonos and Dol Technologies Inc. Ontario Inc. v. Pet Valu Decision date: May 3, 2013 In a decision in 1250264 Ontario Inc. v. Pet Valu, the Ontario appeal court overturned an Ontario Superior Court decision to invalidate certain opt-out notices delivered in a class proceeding between Pet Valu Canada Inc. (Pet Valu) and its franchisees. The Court confirmed that class members have an "unassailable right to speak out in opposition to the class proceeding in an attempt to convince other class members to opt out," as long as any class members who opt out do so on an informed and voluntary basis. The class action was certified in January 2011. The certification order approved the notice of certification and provided for a sixty day opt-out period, which commenced on July 15, 2011. It also required that the parties' communications with class members – which had become a contentious issue – be subject to the court's direction until the expiry of the opt-out period. Importantly, the order did not restrict the right of the other franchisees (aside from the representative plaintiff ) to communicate about the class action. Toward the end of the opt-out period, a group of franchisees calling themselves the Concerned Pet Valu Franchisees (CPVF) LEXPERT®Ranked Lawyers Thomson, Kent E. Torralbo, Robert J. Tory, James C. Tupper, David Valasek, Martin J. Waddell, Margaret L. Davies Ward Phillips & Vineberg LLP Blake, Cassels & Graydon LLP Torys LLP Blake, Cassels & Graydon LLP Norton Rose Fulbright Canada LLP Paliare Roland Rosenberg Rothstein LLP (416) 863-5566 kentthomson@dwpv.com (514) 982-4014 robert.torralbo@blakes.com (403) 260-9722 david.tupper@blakes.com Mr. Thomson is the Head of the Litigation Department of Davies Ward Phillips & Vineberg LLP in Toronto, and specializes in complex "high-stakes" commercial litigation and arbitration. He is a Fellow of the American College of Trial Lawyers. Mr. Torralbo's corporate commercial litigation and arbitration practice emphasizes the defence of class actions, product liability, securities, banking, real estate & shareholder disputes. His clients include financial institutions & multinationals. (514) 847-4818 martin.valasek@ nortonrosefulbright.com (416) 646-4329 marg.waddell@ paliareroland.com Mr. Valasek's international practice embraces both commercial and investor-state arbitration (including NAFTA Chapter 11), in sectors such as aerospace, construction, forestry, mining and energy. He also advises on cross-border litigation matters. Ms. Waddell is a senior partner of Paliare Roland Rosenberg Rothstein LLP, and leader of its Class Action practice group. She has particular experience and expertise in this specialized field, where she acts for both plaintiffs and defendants. (416) 865-7391 jctory@torys.com Practises business litigation with a particular focus on corporate and securities litigation. Has substantial experience in all levels of court in Ontario, in the Ontario Securities Commission, and in commercial arbitrations and mediations. Mr. Tupper's practice focuses on high-value complex cases that include securities, construction, insurance, environmental, and oil and gas law. He appears before all Alberta courts, the Federal Court, the Federal Court of Appeal and the ASC.