WWW.LEXPERT.CA
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2016
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LEXPERT 17
Evans, Mark Smart & Biggar/Fetherstonhaugh
(416) 593-5514 mkevans@smart-biggar.ca
Mr. Evans is the managing partner of Smart & Biggar's Toronto office. He has
been successful in numerous high-profile precedent-setting cases and has
twice been selected as Canadian "Trademark Litigator of the Year" by Bench-
mark Canada. His practice focuses on providing sophisticated trademark
services, and he represents many of the world's most famous brand owners
and personalities.
Ethier, Marguerite F. Lenczner Slaght Royce Smith
Griffin LLP (416) 865-2979 methier@litigate.com
As one of the leading patent litigation counsel in the country, Ms. Ethier has
broad experience in intellectual property issues, particularly in the pharma-
ceutical sector. She is called to the Bars of both Ontario and California.
Emblem, Robert D.G. Clyde & Co Canada LLP
(514) 764-3650 robert.emblem@clydeco.ca
Mr. Emblem has wide-ranging experience in advocacy and dispute resolu-
tion, particularly in complex, high-value construction claims. He regularly
represents construction professionals, contractors and their insurers, and
has handled, defended and resolved hundreds of disputes throughout North
America over the past 20 years.
Eizenga, Michael A. Bennett Jones LLP
(416) 777-4879 eizengam@bennettjones.com
Mr. Eizenga is Chair of Bennett Jones's Class Action Practice. He teaches at
U of T Faculty of Law and is co-author of Class Actions Law and Practice. Mr.
Eizenga is a Fellow of the American College of Trial Lawyers and the Interna-
tional Academy of Trial Lawyers.
Earnshaw, Ross F. Gowling WLG
(519) 575-7525 ross.earnshaw@gowlingwlg.com
Mr. Earnshaw has extensive litigation expertise across a range of areas,
including real estate, construction, insurance, employment, banking, estates,
mortgage enforcement, priorities, collections and legal malpractice defence.
He has appeared before all levels of court, including the Supreme Court
of Canada, numerous tribunals and commercial arbitrators.
Earl, Karen P. Clyde & Co Canada LLP
(647) 789-4844 karen.earl@clydeco.ca
Ms. Earl has been involved in a variety of litigation matters focusing on
general insurance and risk management, including municipal liability, police
liability, occupier's liability, liquor liability, motor vehicle insurance including
heavy commercial vehicles and accident benefits, professional negligence
claims, property insurance, travel insurance and product liability.
LEXPERT-RANKED LAWYERS
Morrison says that is very possibly off limits
when defending a bank because the regulators
might say, "Wait a minute, it's not an entirely
open market. We regulate you, and you're subject
to this restriction and that restriction, and don't
tell me you're entitled to do this because I, your
regulator, say you're not entitled." So Canada's
banks are very much restricted in their ability to
put that forward as a defence because of the regu-
latory structure.
He says even the business-judgment rule avail-
able to most listed companies — the presump-
tion that the directors acted on an informed
basis, in good faith and the action taken was in
the best interests of the company — an apple-pie
defence for publicly traded corporations, is sub-
ject to regulatory restrictions and may be out of
bounds for the banking litigators in some cases.
Canada's big banks are also very much af-
fected by privacy and securities regulations and
anti-money-laundering provisions, says Duncan
Boswell, a banking and commercial litigator at
Gowling WLG International Ltd. Privacy is a
huge concern because of the potential for class-
action litigation. Boswell points to Evans v. Bank
of Nova Scotia, the first class action arising out of
a privacy breach to be certified in Ontario. e
case started when a bank employee provided cli-
ents' private information to his girlfriend. e
concern was that it was being used for identity
the. Scotia responded "fantastically," got out
in front of it, notified all the people who were
affected and provided them with assistance.
ey also provided the appropriate remedies for
people whose identities had actually been stolen.
ey helped them get things back to where they
should be and paid for it all.
ose people should have been outside the
class, says Boswell, who wonders whether there
should still be a certified class of people who were
affected but unharmed? e court said, "Well
done, bank, but we're still going to certify it be-
cause we don't know if there will be any damages
from the invasion of privacy going forward."
Banks, by virtue of being large listed corpo-
rations with very deep pockets, and bound by
masses of regulation, are just going to keep at-
tracting more and more imaginative litigation,
Boswell and others say.
While embezzlement is no doubt as old as
business itself, in the fast-paced digital age, issues
involving hacking, privacy and cybersecurity are
going to keep coming at financial institutions
faster and faster. While some of the regulations
circumscribing the lawyers who defend financial
institutions are arcane, some are contemporary
and others just developing. One thing is for sure:
banking litigators will be looking to the courts
and to Parliament to see if they can keep up.
