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2017
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LEXPERT 29
Markwell, Jason C. Belmore Neidrauer LLP
(416) 863-3383 jmarkwell@belmorelaw.com
Mr. Markwell is an accomplished intellectual property litigator who
represents pharmaceutical and biotechnology companies in patent
infringement and validity actions, judicial review applications, and in
contentious trademark and regulatory matters. He also acts on behalf
of technology, financial services and energy companies in a full
range of IP disputes.
Mark, Alan H. Goodmans LLP
(416) 597-4264 amark@goodmans.ca
Mr. Mark focuses on corporate/commercial litigation including governance,
securities, financial services and restructuring matters; class actions
including securities, product liability and environmental claims; and
electricity law and regulation. He has appeared before all levels of courts
in Canada and various administrative tribunals.
Mann, David W. Dentons Canada LLP
(403) 268-7097 david.mann@dentons.com
Mr. Mann has extensive experience in insolvency matters, having appeared
regularly before Alberta's Bankruptcy Court and Court of Appeal, as well as
having made submissions to the Ontario Court of Appeal and the SCC.
He acts for lenders, debtors, receivers/trustees, creditors/counterparties,
DIP financiers and acquisitors in a variety of insolvency proceedings.
Mallett, Tristram J. Osler, Hoskin & Harcourt LLP
(403) 260-7041 tmallett@osler.com
Mr. Mallett frequently advises clients on contested merger transactions;
take-over bid litigation; shareholder dissent and appraisal litigation, and
shareholder derivative claims; securities misrepresentation, fraud and insider
trading matters; prosecutions undertaken by regulatory authorities
and industry organizations; and related internal investigations.
MacKewn, Melissa J. Crawley MacKewn Brush LLP
(416) 217-0840 mmackewn@cmblaw.ca
Ms. MacKewn, a former OSC prosecutor, advises on securities
regulatory proceedings, and corporate and securities related litigation,
including secondary market class actions, corporate and shareholder
disputes, oppression remedy matters, proxy battles, corporate governance
matters, investment loss claims, breach of contract and professional
negligence matters.
Mack, QC, Perry R. Peacock Linder Halt & Mack LLP
(403) 296-2280 pmack@plhlaw.ca
Mr. Mack, QC, has a broad litigation, arbitration and mediation practice.
He has been recognized as Alberta Litigator of the Year, ADR Lawyer of
the Year, Personal Injury Lawyer of the Year and has leading rankings from
Lexpert, Benchmark Canada, Chambers and Partners Canada, Best Lawyers
and Martindale-Hubbell. Mr. Mack is a past President of the Law Society
of Alberta.
LEXPERT-RANKED LAWYERS
the right decision, he also believes strongly that a
defendant has "a right to know who's suing them.
Public confidence in our court system comes
from the public's ability to see what's actually go-
ing on. It creates a real sense of transparency."
In Québec, anonymous representative plain-
tiffs have occasionally been allowed, says Martin-
eau, but "the use of pseudonyms is relatively new.
Like the rest of Canada, the use of anonymity is
seen as going against the open court principle."
Martineau offers one case that may serve as apos-
sible exception. In June 2006, a male identified
only as Sebastian (a pseudonym) filed a motion
to have a class action certified against the Eng-
lish Montreal School Board and a former teacher
named Richard Spence for having sexually as-
saulted students from the late 1960s until the
early 1980s.
Spence, who had taught biology, had recently
pled guilty to six counts of indecent assault and
one count of gross indecency. He was sentenced
to two and a half years in prison in 2007 and was
released in 2009. In October 2013, eight former
students were awarded a total of $5 million com-
pensation by the Québec Superior Court. "e
use of anonymity is not commonplace," says
Martineau, "nor should it be. But it seems right
in cases like this."
At the opposite end of the spectrum is the
Ashley Madison class action. In 2015, hackers
posted personal details about some 37 million
users of the site that connects married men and
women looking for an affair.
A class action initiated the following year at-
tempted to keep the identity of the representative
plaintiffs anonymous. Judge John A. Ross, of a
district court in Missouri, did not agree. He con-
ceded that it might be embarrassing for a plaintiff
to be publicly identified but ruled that the plain-
tiffs are "class representatives" and may need to
testify or offer evidence, unlike "class members"
who do not need participate as actively and can
remain anonymous. A US$11.2-million settle-
ment was reached in 2017.
It's unlikely that there will be a spate of class
actions in Canada in which anonymity or the
use of a pseudonym is used in the near future.
But with data breaches virtually commonplace,
and cases involving victims of sexual violence
continuing to emerge, it also seems that strong
arguments can be made to permit anonymity in
special circumstances.
"Ultimately, the courts are going to have to re-
solve this issue," says Naudie. "As defence coun-
sel, my view is that absent some extremely excep-
tional circumstances the identity of the plaintiff
representative should be disclosed. But there's
no doubt arguments can be made for anonymity
when those circumstances arise."
