Lexpert Special Editions

Big Suits | 35 in the Competition Act since it came into force in 2009. After a six-week hearing that included testimony from 20 fact witnesses and 10 expert witnesses, including those called by the Intervenors, the Canadian Banker's Association and the Toronto-Dominion Bank, the Competition Tribunal dismissed the Commissioner's application in its entirety. The Competition Tribunal found that the price maintenance provision of the Competition Act did not apply to these rules and dismissed the Commissioner's application. However, the Tribunal proceeded to conduct an alternative analysis, in case it was wrong in its interpretation of the price maintenance provision. In this alternative analysis, the Competition Tribunal found that, through the implementation of the no-surcharge rule, each of Visa and MasterCard indirectly influenced upward the prices paid by merchants for credit card services and that the nosurcharge rule suppressed price competition and had an adverse effect on competition in the market for the supply of credit card network services to acquirers. Nevertheless, the Tribunal found that even if all the conditions of the price maintenance section were satisfied, it would have exercised its discretion not to make an order prohibiting these rules, noting that it was possible that the "cure" could be worse than the "disease" and that a regulatory solution was more appropriate in the exceptional circumstances of this case. The Tribunal declined to award costs on the basis that the Commissioner had advanced a case that should have been brought and that was in the public interest. The Commissioner advised that he will not appeal. MasterCard was represented by its in-house team of Noah Hanft, Mike McEneney, Carl Munson, Jim Masterson, Andrea Cotroneo and Cameron Clark; and by a McMillan LLP team led by James Musgrove, Jeffrey Simpson, David Kent and Adam Chisholm and included Brent McPherson, Dan Edmondstone, Janine MacNeil, Brett Harrison, Devin Anderson, Stephanie White, and Jonathan O'Hara. Visa was represented by its in-house team of Josh Floum, Adam Eaton and Amy Gaskin; and by a Blake, Cassels & Graydon LLP team led by Robert Kwinter, Randall Hofley and Navin Joneja and included Cassandra Brown, Dan Stern, Kate Manning, Michelle Rosenstock, Kiran Patel and Anne Glover. The Commissioner of Competition was represented by Kent Thomson, Adam Fanaki, Davit Akman and Elisa Kearney of Davies Ward Phillips & Vineberg LLP and Department of Justice Canada counsel William Miller and Roger Nassrallah. Mahmud Jamal and Michelle Lally of Osler, Hoskin & Harcourt LLP represented Canada Banker's Association. Paul Morrison, Christine Lonsdale and Adam Ship of McCarthy Tétrault LLP represented the intervenor, TD Bank. Cytrynbaum v. Look Communications Inc. Decision Date: July 4, 2013 The Ontario Court of Appeal upheld the decision of the Ontario Superior Court of Justice in Cytrynbaum et al. v. Look et al. released September 28, 2012, dismissing applications and motions made by certain of Look Communications Inc.'s (Look) former directors and officers and certain of their personal service companies, for interim advances on indemnification to fund the costs of defending claims made against them by Look. Look had issued a Statement of Claim on July 6, 2011, seeking recovery of approximately $20-million of "restructuring awards" paid by Look's former directors to themselves and also to Look's officers and employees. Almost $15.7 million was paid to the defendants named in Look's action, including $7.2 million that was assessed using a non-market value of $0.40 per share at a time when Look's share price ranged between $0.16 and $0.23. The disclosure of the "restructuring awards" in January 2010 incited growing shareholder opposition. In July 2010, Look's directors caused Look to advance approximately $1.65 million LEXPERT®Ranked Lawyers Staley, Robert W. Steep, R. Paul Stratton, Bruce W. Sullivan, James M. Swan, Richard B. Bennett Jones LLP McCarthy Tétrault LLP Dimock Stratton LLP Bennett Jones LLP Torys LLP (416) 777-4857 staleyr@bennettjones.com (416) 601-7998 psteep@mccarthy.ca (647) 288-9525 bstratton@dimock.com Blake, Cassels & Graydon LLP (416) 777-7479 swanr@bennettjones.com (416) 865-8245 jterry@torys.com Mr. Staley's practice focuses on complex commercial and securities litigation and class actions. Peer reviews recognize him for his "skilled handling of complex cases," his "excellent courtroom presence" and as "a masterful strategic thinker." Mr. Steep's litigation practice focuses on commercial, securities and class actions matters. He has an active practice in D&O liability, shareholder and contractual disputes. He also appears before professional disciplinary tribunals. Mr. Stratton is an IP lawyer, patent and trade-mark agent with a technical background in computer science. He has extensive trial and appellate experience in patent, trademark and copyright litigation, with a focus on computer-related patents. Mr. Swan is Co-chair of Bennett Jones's Commercial Litigation practice group. He focuses on corporate, commercial and insolvency litigation, including shareholder, oppression, contract, injunction, arbitration and estate disputes. Mr. Terry, a senior litigator, plays a key role leading the firm's mining sector work in the areas of dispute resolution, Aboriginal matters, anti-corruption, foreign investment protection and corporate social responsibility. (604) 631-3358 james.sullivan@blakes.com Mr. Sullivan focuses on major civil claims in areas of complex commercial litigation and class actions. He appears in courts across Canada including numerous appearances in the SCC. He is Benchmark Canada's 2013 Class Action Litigator of the Year. Terry, John A.

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