The top civil litigation boutiques are grappling with complex issues that can wind their way through the courts for many years. They are both using and litigating over new technology and charting courses in new territory with unpredictable terrain.
The allegedly imminent marijuana legalization will create opportunities for businesses, formerly only enjoyed by the Hells Angels and other extra-legal entrepreneurs. Turning it legitimate will wrap weed production and sale in red tape, opening the door for civil litigators to enter a unique industry.
Luisa Ritacca of Stockwoods LLP says that, as the pot market ascends from the underworld, there will be businesses trying to enter the game and others adjusting from the current legal grey areato whatever legal marijuana looks like.
“What’s likely to happen on the civil litigation side and the regulatory side is that . . . people who are either already in the industry or people who are interested in getting into the industry are going to need advice as to how to navigate this new regulatory world,” she says.
“I think there are people who are within the grey market that are going to need to figure out how to exist and how to run their business and decide whether they can in a profitable way once it becomes [a] more legal but heavily regulated market,” she says.
Stockwoods acted for the BC Civil Liberties Association, which intervened in Google v. Equustek, a case that Ritacca says has significant implications for freedom of expression on the internet.
In Google v. Equustek, the industrial automation firm wanted the global behemoth search engine to remove websites that were selling products developed via theft of intellectual property.
Equustek said that a former distributor for the company had nipped its trade secrets to develop and sell a competing product. It was selling these allegedly ill-designed products with the help, Equustek argued, of the Google search engine. Google, as a third-party facilitator, had an obligation to remove search results that aided the thieves.
Google was willing to remove search results from google.ca but not outside of Canada. With a B.C. court injunction, Equustek demanded a global takedown. Google appealed to the Supreme Court of Canada, with the BCCLA as an intervenor.
Through the Supreme Court, the tech giant with borderless reach was stymied by a ruling that stretched beyond Canadian jurisdiction. Google is responding by filing an application in its native California to have an American court block the Canadian order. Their hope is to be protected by the First Amendment and the Communications Decency Act.
A litigator with plenty of experience in communications law is Ryder Gilliland, who left Blake Cassels & Graydon LLP and started DMG Advocates LLP with two other Blakes alum: Hugh DesBrisay and Kate Manning. Despite being hatched just this January, DMG was voted as a top civil litigation firm.
“We’re obviously a young firm with lawyers that come from a large firm environment,” says Gilliland, whose practice spans commercial litigation, defamation and privacy law.
Gilliland says he also does a lot of litigation for clients in the auto-manufacturing business and transportation, including class actions.
Having a three-person boutique spawned out of a large firm like Blakes, Gilliland says, is a collaboration that’s new to him and an asset to his firm.
“It’s not like, in a large firm, I’d be a few steps removed in many cases from working with younger associates. Here, of course, we’re working together directly,” he says. “That’s an important distinction for younger associates. I think it’s common not to boutiques generally but to smaller boutiques like ours.”
Gilliland has a wide commercial litigation practice, is the former president of the Toronto Commercial Arbitration Society and has experience advising clients in privacy and cybersecurity. But he is most recognizable to the public for his representation of media companies, including the Toronto Star during the Rob Ford crack scandal.
More recently, Gilliland represented Metroland Durham Media Group in its successful opposition of a sweeping publication ban on the trial for the Pickering murder of Carmela Knight. The lawyers for one of the two men charged in the murder sought a publication ban on his client’s co-accused so as to prevent those proceedings from affecting his client’s case, arguing that it might create bias and harm the accused’s right to a fair trial.
Gilliland argued that blacking out the whole trial was extreme and juror vetting and the standard instructions to disregard media reports and focus on the evidence would suffice, according to Metroland Durham Region.
Recent highlights for top civil litigation firm Lenczner Slaght Royce Smith Griffin LLP both involve civility. One is the professional misconduct proceedings against prominent securities litigator Joseph Groia; the other is the uncivil use of Chief Wahoo, the red-faced, wide-eyed mascot of the Cleveland Indians baseball team.
Lenczner Slaght litigates a broad range of areas, with commercial litigation, health law and intellectual property being its three biggest areas of practice.
“We’re mostly a group of generalists,” says managing partner Tom Curry. “We have some specific practice areas, but we like to maintain a generalist’s approach. That’s a big advantage, I think. I would also say that, within the civil litigation bar, we like to be in court. So, we have that actual experience — courtroom experience — to draw on.”
Lenczner Slaght litigators are serving as counsel to Douglas Cardinal, the Ontario architect who has filed human rights complaints in Ontario and federally against Major League Baseball, the Cleveland Indians and Rogers Communications.
Cardinal argued that subjecting Indigenous Canadians to the image of the grinning, feather-donned Chief Wahoo and the name “Indians” is racial discrimination and counter to human rights codes, which prohibit discrimination in the delivery of a service. Cardinal also unsuccessfully sought an injunction during the 2016 ALCS between the Jays and Indians, to prevent any broadcast of the mascot and team name in Canada.
Curry took over the role of managing Lenczner Slaght in January. He says the case will continue through 2018, but the Cleveland Indians have recently added to the drama, announcing they will no longer use Chief Wahoo.
Lenczner Slaght is also involved in the 17-years-and-counting civility battle between Groia and the Law Society of Ontario.
In 2011, the law society found he engaged in incivility while defending John Felderhof of Bre-X Minerals and the Ontario Court of Appeal affirmed the ruling. Civil or not, Groia’s defence of Felderhof was successful, as he was acquitted of insider trading and authorizing misleading news releases.
The case highlights the balance between courtroom civility and the right of those accused of crimes to have fearless and zealous advocates, as well as between law societies and trial judges, when it comes to regulating the courtroom. Part of the controversy is born from the fact that the trial judge didn’t make a complaint; the law society took it on itself to get involved.
“That appeal has gone all the way to the Supreme Court of Canada on the question of civility, the responsibility of a lawyer to behave in accordance with the rules of professional misconduct and the issue is whether those duties are inconsistent with the responsibility of a lawyer to be a zealous advocate,” Curry says.
Citing an arbitration that has lasted almost as long as Groia’s, Irwin Nathanson of Vancouver’s Nathanson Schachter & Thompson LLP says that, although more clients seek arbitration these days, its benefits are not always what they seem.
“The benefit of arbitration is you get to pick your judge, you get to have a much earlier hearing, we have the theory that it will be quicker, but it isn’t necessarily so for complex matters,” Nathanson says.
He points to JEL Investments Ltd. v. Boxer Capital Corporation, Yanco Management Ltd. and Chung Properties Ltd. as an example, the case taking 13 years to resolve. But, he says, the case is a testament to the service his firm provides.
“Most litigants can’t manage a 13-year battle,” Nathanson says.
He says that the volume of documents involved in cases now is a “marked departure” from 20 years ago and technologies such as e-discovery are increasingly necessary.
“It’s very important and big cases, you know, one can get overwhelmed with handling documents, document production, document discovery; the costs can be extraordinary,” he says.
“At the end of the day, the senior lawyer or the senior and the junior have to know what’s in those documents and that’s the ultimate challenge, how to separate the wheat from the chaff. And you know there’s a lot of chaff,” he says.
What distinguishes Nathanson’s shop, he thinks, is “practical and candid advice,” a strategy to deal with the case efficiently and clear advice on risks and opinions, he says.
“It’s not uncommon to find [that] a client gets some pretty bullish advice early on and then within the shadow of the trial the lawyer says you know this is going to be very difficult,” Nathanson says, “And the client says, ‘I’ve been at this for two or three years and I’m now being told for the first time that there are problems or difficulties. This isn’t right!’”
How we did it
Canadian Lawyer asked lawyers, in-house counsel and clients from across Canada to vote on the top civil litigation and criminal law boutiques. They were asked to rank their top firms from a preliminary list, with a chance to nominate a firm that was not included on the list. To be considered in the vote, firms were required to have at least 80 per cent of their business come from civil litigation or criminal law. The final rankings were determined through a points system, in which firms were rewarded on a sliding scale for the number of first to 10th-place votes received.
Top 10 Civil Litigation Boutiques
Babin Bessner Spry LLP
Founded in 2009 by Ed Babin, a former senior litigation partner with Torys LLP and Davies Ward Phillips LLP, Babin Bessner Spry LLP welcomed Cynthia Spry, formerly from Davies and Osler Hoskin & Harcourt LLP, in 2010, and Ellen Bessner, formerly from Gowling Lafleur Henderson LLP and Cassels Brock & Blackwell LLP, in 2014. The firm acts for a wide range of individual, institutional and corporate clients, including Rogers Communications Inc., Sleep Country Canada, the Commissioner of Competition and several major national and local securities dealers. Its practice areas include securities litigation and regulation, corporate governance, director and officer liability, shareholder oppression, fraud, competition, class actions, advertising law, professional liability and discipline and employment. The firm also regularly acts in a variety of public interest and pro bono matters.
DMG Advocates LLP
DMG Advocates is a relatively new, Toronto-based firm. Its lawyers have decades of experience in corporate commercial litigation garnered at one of Canada’s leading national firms. They litigate in commercial disputes across a broad range of sectors, including manufacturing, transportation, securities, media, technology, real estate, energy and construction. They also have knowledge and specialization in the laws relating to product liability, shareholder disputes, class action defence, franchise litigation, commercial arbitration, e-discovery, defamation and privacy/cybersecurity. Ryder Gilliland is a partner at the firm as well as president of the Media Lawyers’ Association and adjunct professor at Ryerson University, where he teaches media law. Gilliland also advises newspapers, publishers and broadcasters on defamation law, publication bans, sealing orders, privacy and copyright.
Hunter Litigation Chambers
Hunter Litigation Chambers’ lawyers practise a broad range of litigation matters at both the trial and appellate level including complex commercial litigation and arbitration, public and administrative law, employment law and criminal law. Recent briefs include representing British Columbia (director of civil forfeiture) in two leading cases involving the constitutionality of the provincial Civil Forfeiture Act, the B.C. Lottery Corporation in various proceedings, Teal Cedar Products before the Supreme Court of Canada, Western Forest Products in a major contract dispute and Canadian Forest Products in a 33-day trial involving liability for forest fires. The firm prides itself on its pro bono services with its lawyers being honoured twice with the Allan Parker QC Award from Pro Bono B.C.
Jensen Shawa Solomon Duguid Hawkes LLP
JSS Barristers regularly represents clients in complex and multi-party litigation. The firm offers a range of commercial legal counsel to parties involved in a wide spectrum of businesses and industries. The firm’s lawyers litigate and arbitrate in the areas of business law, banking and financial services, product liability, power, tort, natural resources, securities, regulatory tribunals, insolvency, insurance, professional negligence, serious personal injury, employment and commercial trade secrets and proprietary information. The team at JSS Barristers comes from widely divergent backgrounds and has considerable experience as trial and arbitral advocates. Its lawyers have appeared at all levels of the courts of Alberta and Canada, as well as before regulatory bodies such as the Alberta Securities Commission, the Alberta Utilities Commission and the Law Society of Alberta. The lawyers at JSS Barristers have developed practices dealing with mediations, arbitrations and other alternative dispute resolution processes in the firm.
Lax O’Sullivan Lisus Gottlieb LLP
Going on its 21st anniversary, Lax O’Sullivan Lisus Gottlieb LLP is an independent counsel firm that started off with three original partners and now has 25 lawyers. The firm focuses on complex commercial litigation and is engaged in high-profile disputes in a range of industries. Recent mandates include: acting in the Supreme Court of Canada on the leading case governing personal liability under the shareholder oppression remedy; acting for Sleep Country Canada in obtaining an interlocutory injunction in a trademark dispute; the successful enforcement of a commercial lease indemnity; acting for Standardbred horse breeders challenging Ontario’s unilateral cancellation of a revenue-sharing agreement; acting for the University Health Network on a judicial review application brought by two researchers; acting for the Qikiqtani Inuit Association in an arbitration against Baffinland Iron Mines Corp. in a royalty payment dispute arising out of the Mary River Project, an iron ore mine site in Nunavut; resisting efforts to add a defendant to the high-profile action to enforce a US$9.5-billion Ecuadorian judgment against Chevron Corporation and its indirect subsidiary, Chevron Canada Limited; and a successful challenge to the constitutionality of Canada’s solitary confinement laws.
Lenczner Slaght Royce Smith Griffin LLP
Lenczner Slaught provides advice and guidance to all levels of government, financial and educational institutions, public authorities, corporations, boards and commissions. The firm also assists clients in navigating complex situations and appears before all levels of the courts, arbitration panels, administrative bodies and regulatory tribunals. For more than 25 years, the firm has strived for the highest quality of advocacy to both public and private clients as expert litigators. The firm practises in arbitration, class actions, commercial litigation, competitions cases, construction, defamation and media, employment, estates litigation, insolvency and restructuring, insurance, intellectual property, product liability, professional liability and regulation, public and administrative and securities litigation. Lenczner Slaght is representing prominent architect Douglas Cardinal in his human rights case against the use of the Cleveland Indian’s baseball club’s logo and racist mascot “Chief Wahoo.” The team has recently pledged to discontinue use of the mascot.
Nathanson Schachter & Thompson LLP
Nathanson Schachter & Thompson LLP has a team of lawyers at every level to manage the largest and most complicated commercial disputes, resolving them to advantage — or litigating them to conclusion. In addition to the firm’s five Queen’s counsel, the firm includes several former law clerks, including two former clerks to the chief justice of British Columbia. NST regularly acts in the full range of commercial disputes, including contract disputes, shareholders’ disputes, securities and oppression claims, hostile takeover bids and derivative actions, class actions and representative proceedings, mining claims, pension litigation, actions for professional negligence, administrative proceedings, defamation actions and employment disputes. The firm has also acted for the successful plaintiffs in two of Canada’s most significant mining cases, Minera Aquiline Argentina SA v. IMA Exploration Inc. and Inmet Mining Corp. v. Homestake Canada Inc.
Paliare Roland Rosenberg Rothstein LLP
Founded in 2001, Paliare Roland Rosenberg Rothstein LLP has doubled in size to 36 current lawyers from 18 original litigators. It handles a broad range of cases from complex commercial litigation and class actions to professional discipline and labour relations. It also represents other law firms and acts as appellate counsel. Recent cases include acting for the Financial Services Commission of Ontario on the insolvency of Nortel Inc. and Sears Canada, representing the plaintiffs on the Sino-Forest class action, disputes in the mining sector, Club Resorts Ltd. v. Van Breda, Daniels v. Canada and for the individual in Catalyst v. Moyse and West Face. The firm regularly acts for the Power Workers’ Union, United Steelworkers, the University of Toronto, Morgan Stanley and Honeywell Ltd. Paliare Roland was counsel to the independent reviewer of the Hospital for Sick Children’s Motherisk drug and alcohol hair-testing program. The firm also commits to pro bono advocacy and its lawyers often appear for interveners at the Court of Appeal and Supreme Court of Canada.
Stockwoods LLP represents clients in commercial, civil, criminal and regulatory litigation. The firm’s 18 lawyers represent a broad spectrum of clients including business entities and executives, financial institutions, government organizations, Indigenous groups, police services, judges, regulated professionals and professional regulators, as well as corporate and individual defendants in white collar and other serious criminal prosecutions. Recent mandates include assisting the judges administering the IRSSA, defending Uber partners in regulatory prosecutions, prosecuting and defending before the OSC and LSO, defending Wenger S.A.’s Swiss flag trademark at the FCA, defending class actions involving foreign exchange trading and a publicly traded REIT and successfully defending ORNGE regarding a fatal air crash. Stockwoods’ commercial litigation practice includes both commercial and corporate disputes, fraud actions and securities and competition law class proceedings. The firm is experienced in representing parties at commissions of inquiry (currently at the MMIWG Inquiry) and coroners’ inquests. Stockwoods’ recent SCC cases range from digital privacy (R. v. Marakah) to Indigenous rights (Clyde River), fair trial rights in regulatory prosecutions (R. v. Peers), foreign corruption (World Bank Group v. Wallace) and private international law (Google v. Equustek).
Woods LLP is a boutique firm specializing in litigation, arbitration and insolvency. Its lawyers are bilingual, trained in civil and common law and called to the bar in various jurisdictions in Canada, the U.S., France and England. They act for public and private companies, private persons, associations and governments in all manners of corporate and commercial litigation, before all levels of courts and tribunals in Canada, including disputes relating to commercial contracts, corporate liability and governance, directors’ and officers’ liability, shareholders’ or other stakeholders’ disputes, class actions and securities litigation. Woods is also retained in matters relating to professional liability as well as in matters involving product and manufacturers’ liability, employment law, defamation, emergency injunctions and various disputes in the construction, energy, agri-business, IT and financial services industries. The firm’ insolvency practice has grown significantly in recent years. It is also one of the few firms in Canada with an international arbitration practice.