WWW.LEXPERT.CA
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2017
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LEXPERT 23
Hunter, QC, Clarke Norton Rose Fulbright Canada LLP
(403) 267-8292 clarke.hunter@nortonrosefulbright.com
Mr. Hunter's litigation and ADR practice has embraced Aboriginal,
contractual, fiduciary duty, oil and gas, securities, D&O liability, shareholder
remedies, professional negligence, product liability, IP and tax cases.
He is an ACTL Fellow.
Howard, Peter F.C. Stikeman Elliott LLP
(416) 869-5613 phoward@stikeman.com
Mr. Howard is a partner in the Litigation & Dispute Resolution Group. His
practice focuses on commercial litigation, including securities law, class
actions, commercial contracts, oppression and other types of shareholder
and/or joint venture litigation and insolvency matters. He has appeared
before the Supreme Court of Canada and the Ontario Securities Commission.
Hodgson, James A. Norton Rose Fulbright Canada LLP
(416) 216-2989 jim.hodgson@nortonrosefulbright.com
Mr. Hodgson practises commercial, corporate and civil litigation. He focuses
on shareholders' rights, securities litigation, class actions, construction,
product liability and professional liability. Past President, Advocates' Society,
Fellow ACTL.
Hoaken, Eric R. Lax O'Sullivan Lisus Gottlieb LLP
(416) 645-5075 ehoaken@counsel-toronto.com
Mr. Hoaken's litigation practice is primarily focused on class proceedings,
but also includes health law matters and complex commercial litigation
such as shareholders' disputes, directors' and officers' liability issues,
and contractual disputes. He is a Fellow of the IATL.
Hitchman, Carol V.E. Sprigings Intellectual Property Law
(416) 777-0888 chitchman@sprigings.com
Ms. Hitchman is a partner at Sprigings Intellectual Property Law.
Her practice focuses primarily on intellectual property litigation, which
includes experience as a litigator and a Patent and Trademark Agent.
Hill, David G. (Dave) Hill Sokalski Walsh Olson LLP
(204) 954-0750 dhill@hillco.mb.ca
Mr. Hill founded the firm February 1, 1988. He has been Litigator of the
Year for Manitoba by Benchmark Canada three times. His expertise in
advocacy is reflected in a number of leading cases involving economic torts,
environmental claims and contractual disputes. He has successfully handled
seven shareholder disputes under Section 234 of The Corporations Act
of Manitoba and Section 241 of the CBCA.
LEXPERT-RANKED LAWYERS
For the most part, though, the facts of a con-
tractual intepretation case carried little if any
weight when an appellate court was reviewing
the decision of a lower court. "Traditionally,
says Milne-Smith, "the approach [for appellate
review] was, you read the contract, you interpret
the contract, end of story." But over the centu-
ries, a few logical exceptions to that approach did
slowly creep into the common law. By the late
20th century, a judge could consider other factors
when reviewing a contractual dispute, but only
in cases where there was contractual ambiguity.
"For example, you could look at the communi-
cations between the parties before the contract,"
says Milne-Smith. But for an appellate court to
look at questions of mixed fact and law, there had
to be what's known in law as a palpable and over-
riding error. "Which means, even if I think the
position of the trial judge might be wrong, I still
have to, as an appellate judge, allow it to stand if
I don't think it's so badly wrong as to rise to the
level of a palpable and overriding error."
But the Sattva case changed that. In render-
ing judgment, the SCC wrote that the historical
approach of using only questions of law in deter-
mining the rights of parties bound in a contract
"should be abandoned. Contractual interpreta-
tion involves issues of mixed fact and law as it
is an exercise in which the principles of contrac-
tual interpretation are applied to the words of
the written contract, considered in light of the
factual matrix of the contract."
In other words, says Milne-Smith, the SCC
was saying, "No, no, no. You don't have to wait
for cases with ambiguity. A judge should always
look at the factual matrix in order to understand
how to interpret a contract." Now, more than
ever, says Milne-Smith, there's "a desire for cer-
tainty and un-ambiguity in contractual draing.
And you need to have good counsel to make sure
you can accomplish that."
e SCC rulings mean that judges can now
examine a wider array of evidence in determining
whether a party failed to perform its good faith
obligations outlined in a contract. So parties
involved in a contract, Milne-Smith continues,
must "be aware of the fact that your communica-
tions at the pre-contractual stage could become
the subject of litigation. So don't say anything
that could be taken out of context."
Since 2014, says Sarah Woods, Bhasin has
been cited in around 300 Canadian cases. e
message from the case law, she says, is that those
entering into contracts "have to make sure they
are on side and they are transparent in the execu-
tion of their obligations." And that's not just a job
for lawyers. "[is] will be a preoccupation at the
operations level, the people on the ground. e
people who are interacting with the other party."
