22 LEXPERT
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2017
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WWW.LEXPERT.CA
Hausman, David A. Fasken Martineau DuMoulin LLP
(416) 868-3486 dhausman@fasken.com
Mr. Hausman practises exclusively in the field of securities litigation.
He regularly represents investment dealers, public companies, investment
funds, directors' and officers' in a wide range of matters, including regulatory
investigations and proceedings before provincial securities commissions,
all Canadian stock exchanges and self-regulatory organizations.
Harrison, Robert S. Fasken Martineau DuMoulin LLP
(416) 865-4384 rharrison@fasken.com
Mr. Harrison is one of Canada's leading corporate and commercial litigators.
He has extensive trial, appellate and arbitration experience, and litigates
cases in many areas of substantive law including intellectual property
and breach of confidence, contracts, shareholders' remedies, insurance,
directors' and officers' liability, environmental matters, professional
negligence and injunctions.
Hardy, Éric Norton Rose Fulbright Canada LLP
(418) 640-5022 eric.hardy@nortonrosefulbright.com
Mr. Hardy's practice focuses principally on commercial litigation, insurance,
civil liability, manufacturer's liability, class actions, business ethics, and
corporate litigation and arbitration. He also has considerable experience in
professional liability matters as he has represented dentists, doctors, land
surveyors, securities brokers, and life, health and casualty insurance brokers.
Hamilton, Sheldon Smart & Biggar
(416) 593-5514 jshamilton@smart-biggar.ca
For more than 20 years he has acted as counsel for many of the world's
most innovative companies in relation to commercially significant products.
Particular experience in pharmaceutical litigation, as both trial and appellate
counsel, and in Patented Medicines (Notice of Compliance) proceedings.
Extensive trial experience on issues of patent infringement and validity,
and damage quantification.
Halfnight, Jamieson Lerners LLP
(416) 361-3083 jhalfnight@lerners.ca
Recognized as one of the top insurance lawyers in Canada, Mr. Halfnight
conducts a specialty insurance and reinsurance coverage and litigation
practice, advising clients both in Canada and internationally, and appearing
in both trial and appellate courts. He regularly lectures and publishes
on insurance and litigation subjects.
Guay, François Smart & Biggar
(514) 954-1500 fguay@smart-biggar.ca
Member of the Executive Committee and among the most experienced IP
litigators in Canada. He has practised exclusively in IP litigation for over
30 years and is well known for litigation strategies, conducting discoveries,
examinations and cross-examinations, and presenting highly persuasive
arguments in court. He has twice been selected as "Trademark Litigator
of the Year" by Benchmark Canada.
LEXPERT-RANKED LAWYERS
versed the Alberta Court of Appeal's decision. e
highest court said the original trial judge was right
to examine the facts behind Can-Am's decision to
terminate the renewal of Bhasin's contract. e
SCC, Lederman recounts, "went on to say, 'No,
even in a contract where the terms were unam-
biguous, every party to a contract has now a duty
of honest performance. And they have to perform
every obligation under their contract honestly.'
at duty of honest performance emanates from
this general organizing principle that the [SCC]
recognized duly exists in the common law."
But Lederman suggests the SCC, despite good
intentions, has made the business of entering
into contracts even more risky than before 2014.
"Even though the [SCC] takes the view that the
broadening of this duty of honest performance to
apply to all contracts will ensure commercial cer-
tainty, I'm not sure that's the case." Lederman says
that, with courts now able to go beyond the plain
meaning of the words in a contract in determining
whether a party has failed to perform them hon-
estly and in good faith, certainty about a contract
is more doubtful and exposure to liability higher.
e Bhasin case wasn't the only SCC decision
in 2014 that shied the landscape of contractual
interpretation. In Sattva Capital v. Creston Moly,
the SCC changed the standard of review that ap-
pellate courts can use when deciding whether they
should hear appeals emanating from lower courts
or arbitration tribunals regarding contract law.
e long-standing rule for appellate courts was
that they could review the judgments of lower
courts regarding contract law only on narrow
questions of law, using what is known as a "stan-
dard of correctness," explains Matthew Milne-
Smith, a partner with Davies Ward Phillips &
Vineberg LLP in Toronto. Questions of fact could
also be reviewed, but only on the much higher
standard of "palpable and overriding error." In
essence, that meant that the appeal court would
only grant leave if a trial judge actually misinter-
preted the meaning or intention of a law.
"EVEN THOUGH THE
SUPREME COURT TAKES
THE VIEW THAT THE
BROADENING OF THIS DUTY
OF HONEST PERFORMANCE
TO APPLY TO ALL CONTRACTS
WILL ENSURE COMMERCIAL
CERTAINTY, I'M NOT SURE
THAT'S THE CASE."
Eli Lederman; Lenczner Slaght
Royce Smith Griffin LLP
