WWW.LEXPERT.CA
|
2017
|
LEXPERT 9
Callaghan, John E. Gowling WLG
(416) 369-6693 john.callaghan@gowlingwlg.com
Mr. Callaghan has a broad practice. He appears before all levels of courts
and tribunals. His expertise is often sought for complex cases and he has
been described as "unflappable" in his handling of the myriad of cases
in which he is involved.
Byers, David R. Stikeman Elliott LLP
(416) 869-5697 dbyers@stikeman.com
Mr. Byers is a partner at the Stikeman Elliott Toronto office, and co-chair
of the National Litigation & Dispute Resolution Group. He is highly
experienced in complex commercial litigation, including insolvency, product
liability, securities, as well as in domestic and international arbitration.
He is a member of the Litigation Counsel of America, and a former
director of The Advocates' Society.
Burke, Andrea L. Davies Ward Phillips & Vineberg LLP
(416) 367-6908 aburke@dwpv.com
Ms. Burke specializes in civil litigation with a focus on business disputes
and all types of commercial litigation. She has significant M&A and securities
litigation experience, including securities class actions, enforcement
proceedings and contested transaction matters. She frequently acts
for mining companies and has a proven track record handling
multi-jurisdictional disputes.
Bunting, James (Jim) Davies Ward Phillips
& Vineberg LLP (416) 367-7433 jbunting@dwpv.com
Mr. Bunting's broad trial practice covers a diverse range of areas, including
corporate commercial disputes, arbitration, advertising and deceptive or
unfair trade practice disputes, franchise disputes, class actions, securities
litigation, defamation and sports-related matters.
Brush, Robert J. Crawley MacKewn Brush LLP
(416) 217-0822 rbrush@cmblaw.ca
Mr. Brush's commercial and securities litigation practice focuses on civil and
regulatory proceedings involving the capital markets, as well as the financial,
insurance and accounting sectors, among others. Due to his specialized
expertise, he has been counsel on a wide range of civil cases, class actions
and regulatory proceedings across the country.
Brodkin, Andrew Goodmans LLP
(416) 597-4278 abrodkin@goodmans.ca
Mr. Brodkin heads Goodmans' Litigation Group. He focuses on IP litigation,
primarily in pharmaceutical patent disputes. He is particularly active in
proceedings prosecuted pursuant to the Patented Medicines (Notice of
Compliance) Regulations. He appears at all levels of courts and has argued
a number of significant patent cases.
ing finality in an arbitration is given effect. As
long as the arbitrator's decision is reasonable, the
courts are not going to interfere with that, except
in very rare circumstances."
ose circumstances would have to comprise
a constitutional question or a question of law of
central importance to the legal system as a whole;
and a question that was outside the arbitrator's
expertise. "If all of those factors were combined
in a certain case, the court would insist on a stan-
dard of correctness," says Sarabia. "You can imag-
ine that's going to be the rare case."
In the 5-4 decision in Teal, Justice Denis
Gascon wrote: "It would be an error to claim
that all statutory interpretation by
an arbitrator demands correctness
review simply because it engages a
legal question."
In the Sattva ruling, the SCC re-
stricted appeals of arbitral awards
by saying they are final unless a pure
question of law is in dispute. In the
Teal ruling, the Supreme Court af-
firmed Sattva and went even fur-
ther, holding that arbitrators' awards
should be reviewed only on ques-
tions of law; while appeals based
on mixed questions of fact and law
should not be allowed.
Even contract language is a mixed question of
fact and law, the top court found in Teal, and only
the elements of law have the potential for appeal,
i.e., they must be separated or extricated from the
mix. "A narrow scope for extricable questions of
law is consistent with finality in commercial arbi-
tration, and, more broadly, with deference to fac-
tual findings," the SCC held in the Teal ruling.
e SCC was concerned, says Terry, "that
counsel will try to frame issues in a way that will
turn them into questions of law when they're
really properly questions of mixed fact and law,
which shouldn't be reviewed as questions of law."
Sarabia says, "e Supreme Court was alive to
the possibility that parties might try to charac-
terize any particular case in a way to fit it within
the appeal jurisdiction of a court."
e SCC also reaffirmed Sattva by saying low-
er courts must be careful to distinguish between a
claim that a legal test may have been altered when
applied — which is an extricable question of law
— and a claim that a legal test, when applied to
an arbitration decision, would have resulted in
in a different outcome. "e court said we have
to be careful about distinguishing the use of the
wrong test, when applying a test, from the appli-
cation of the right test with an outcome that one
side doesn't like," says acker. "It is only if you
can show that the wrong test was applied that
LEXPERT-RANKED LAWYERS
