Litigation Seminar Series 2008

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Litigation Seminar Series

2008

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Litigation Back to Basics Seminar Series 2008

Index

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Overview of Fasken Martineau and its

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Litigation and Dispute Resolution Practice Group

Creative Solutions to Creative Claims

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It’s Not Really Over ‘Til the Order is Enforced

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Fasken Martineau DuMoulin LLP 1 Barristers and Solicitors

Patent and Trade-mark Agents

Firm Profile

Fasken Martineau is a leading international business law and litigation firm with more than 650 lawyers. The firm has offices in Vancouver, Calgary, Toronto, Ottawa, Montréal, Québec City, London and Johannesburg.

As a full service law firm, Fasken Martineau provides strategic advice in virtually all areas of business law to a broad range of clients including more than half of the Fortune 100 companies, major corporations, government agencies, regulatory and non-profit bodies and individual clients. Recognized in The International Who's Who of Business Lawyers in 2005, 2006, 2007 and 2008 as the #1 firm worldwide in mining law, Fasken Martineau is also acknowledged in Euromoney’s Guide to the World’s Leading Environment Lawyers as the top firm in Canada in environmental law. The prestigious Best Lawyers in Canada 2008 directory lists 79 of the firm’s lawyers as experts in various areas of practice. Bloomberg’s 2007 Global Mergers & Acquisitions Advisory Rankings ranked Fasken Martineau, among its Canadian peers, as #1 for cross-border M&A, #1 for European deals and #1 for UK deals (by value). Our lawyers served as counsel in four of the top ten business cases considered by Lexpert to have made the most significant and wide-ranging impact on the business community in 2007. Additionally, we have defended clients in more than 100 class actions representing the majority of significant cases in Canada.

Fasken Martineau is consistently distinguished in the Canadian Legal Lexpert Directory, the Chamber's Global Guide to the World's Leading Lawyers, and the International Financial Law Review's Guide to the World's Leading Financial Law Firms.

Our approach is built on relationships. We develop those relationships one-on-one. That means practicing where our clients operate their businesses. Two 2007 mergers demonstrate our commitment to this approach.

Our merger with London-based Stringer Saul LLP enables us to provide strategic legal advice on a range of Canadian business initiatives to UK, continental European, African and other clients. Our lawyers there also assist North American and other clients of the firm with business and legal challenges in the UK as well as advising on public and private mergers and acquisitions, private equity transactions, privatizations, corporate finance transactions, debt project and structured financings, financial services, infrastructure/public private partnerships, international joint ventures and projects, and establishing businesses in Canada.

Our merger with Ottawa-based Johnston & Buchan LLP created a high profile presence in Canada's capital to better serve federally regulated and national clients. This group offers inimitable knowledge of the federal government and its agencies, and is expanding its trade law practice, which comprises agricultural trade law, trade remedies, import and export controls, and advising clients on WTO and NAFTA related issues. The 2007 edition of Chambers Global's The World's Leading Lawyers for Business recognizes six of the 11 partners there as among the top Canadian lawyers in their chosen fields of practice.

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Fasken Martineau DuMoulin LLP 2 Barristers and Solicitors

Lawyers in our Johannesburg office provide legal advice to North American and European companies looking to invest in the African continent as well as South African companies looking for foreign debt and equity finance, cross-border and cross-continent mergers and acquisitions, privatizations, public-private partnerships, restructuring and trade. Many of the Johannesburg office engagements are resource or energy-related matters.

Fasken Martineau Offices

Vancouver: 2900-550 Burrard Street

Vancouver, British Columbia, Canada V6C 0A3 Tel: 604 631 3131 Fax: 604 631 3232

Calgary: 3400 First Canadian Centre 350-7th Avenue SW

Calgary, Alberta, Canada T2P 3N9 Tel: 403 261 5350 Fax: 403 261 5351

Toronto: Toronto Dominion Bank Tower, P.O. Box 20, Suite 4200 Toronto-Dominion Centre, Toronto, Ontario, Canada M5K 1N6 Tel: 416 366 8381 Fax: 416 364 7813

Toll-Free Number (Ontario and Québec): 1 800 268 8424

Ottawa: 55 Metcalfe Street, Suite 1300 Ottawa, Ontario, Canada K1P 6L5 Tel: 613 236 3882 Fax: 613 230 6423

Montréal: Stock Exchange Tower, P.O. Box 242, Suite 3400 800 Place-Victoria, Montréal, Québec, Canada H4Z 1E9 Tel: 514 397 7400 Fax: 514 397 7600

Québec City: 140, Grande Allée Est, Suite 800 Québec, Québec, Canada G1R 5M8 Tel: 418 640 2000 Fax: 418 647 2455

London: 17 Hanover Square

London, England W1S 1HU

Tel: +44 20 7917 8500 Fax +44 20 7917 8555

Johannesburg: PostNet Suite #430, Private Bag X9924 Sandton, Johannesburg 2146, South Africa Tel: +27 11 685 0800 Fax: +27 11 685 0818

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Fasken Martineau DuMoulin LLP Barristers and Solicitors

Litigation and Dispute Resolution

Fasken Martineau's Litigation and Dispute Resolution Group is internationally recognized for our litigation, arbitration and alternative dispute resolution skills. We represent large corporations, multinational Fortune 500 companies, government, numerous smaller business entities and individuals in routine lawsuits and high profile cases, as well as in matters of extraordinary complexity, including class actions, parallel civil and administrative proceedings, litigation, and those involving massive document productions and other complicated discovery issues. We have extensive experience in all aspects of commercial litigation and represent clients as trial and appellate counsel in courts and before arbitration tribunals, at mediation and administrative agencies.

Our litigators vigorously represent clients in a wide range of matters, including:

Commercial litigation, as defendant and plaintiff/claimant ;

Securities, including class action litigation, and broker-dealer and other arbitrations;

Technology-related, including patent, trade secret and other intellectual property litigation;

Complex insurance;

Labour litigation;

International, including claims brought by or against offshore litigants in Canadian and English courts, or in international arbitration tribunals; and,

Appellate matters.

Bringing to bear the firm's varied resources, we manage litigation with the same passion that our clients manage their businesses. Clients may find litigation to be confusing, unpredictable, costly and an interference to achieving their goals. We take the time to understand our clients, their businesses, goals and budget constraints. As a result, we have taken a strategic problem-solving approach to litigation. Utilising our Litigation Management Protocol, we try to solve our clients' problems in the most expeditious and economical way as possible. We provide:

Litigation and Dispute Resolution Strategy: We identify business goals, develop a litigation strategy early in the management of a dispute, provide a written assessment and address key issues such as risk and cost.

Budgeting: Clients need realistic estimates in order to plan their budgets. We provide ongoing guidance so that our clients can undertake the requisite financial planning.

Communication: Ongoing communication is a key driver of client satisfaction. We respond to all requests on a timely basis in the fashion our clients prefer. We promote opportunities to keep our clients abreast of developments, tailored to individual client needs and preferences.

Extranet: Our extranet provides clients with secure online access to the materials relating to their case. These include the Litigation and Dispute Resolution Strategy, pleadings, key correspondence, documents, budget and other related materials critical to effective litigation management.

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Patent and Trade-mark Agents Areas of Practice

Litigation and Dispute Resolution

Education LL.B, 2006

University of Windsor B.B.A., 2002

Wilfrid Laurier University

Called to the Bar Ontario, 2007

Shelley D. Babin

Associate Toronto Direct Line: 416 868 3350 Facsimile: 416 364 7813 [email protected] www.fasken.com

Shelley Babin is an associate in Fasken Martineau's Litigation and Dispute Resolution Department. Shelley has experience with corporate/commercial disputes, contractual disputes and administrative law, and has represented clients in various sectors, including the mining, construction, telecommunications and insurance industries.

Shelley summered with the firm in 2005, and was seconded to Fasken Martineau's Vancouver office. She completed her articles in 2006/2007 and joined the firm's litigation department in 2007.

Memberships and Affiliations

Member, Law Society of Upper Canada

Member, Ontario Bar Association

Member, The Advocates' Society

Community Involvement

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Patent and Trade-mark Agents Areas of Practice

Litigation and Dispute Resolution Education B.Sc. (Honours), 1999 University of Toronto J.D., 2004 University of Toronto

Called to the Bar Ontario, 2005

David A. Gourlay

Associate Toronto Direct Line: 416 865 4437 Facsimile: 416 364 7813 [email protected] www.fasken.com

David Gourlay is engaged in a broad litigation and dispute resolution practice, with an emphasis on commercial, corporate, employment, negligence, construction, defamation and estate litigation, as well as energy law and administrative law.

David has appeared as counsel in the Ontario courts and before various tribunals, including the Ontario Energy Board. David has acted as counsel to a major international wind turbine manufacturer in a matter involving the construction of a wind farm, and to a major steel manufacturer in an arbitration matter arising from a large asset purchase transaction. He is also counsel to a national railway company in a number of matters involving personal injury and other issues, and to many smaller companies and individuals. More recently, David represented a publicly-owned electric utility corporation in the Ontario Energy Board’s review of the Integrated Power System Plan, the Ontario Power Authority’s 20-year plan for the electricity system in Ontario. David was a summer student with the firm in 2003, and was seconded to the Ontario Human Rights Commission. David articled with the firm in 2004/2005, and became an associate with the litigation department following his call to the Ontario bar in 2005. David volunteers with both the Small Claims Court Duty Counsel Project and the Law Help Desk Project of Pro Bono Law Ontario.

Representative Experience

Fox-Davies Capital Ltd. v. CEP International Petroleum Ltd., [2007] Y.J. No. 15 (S.C.)

Successfully challenged corporate actions in proxy contest for corporate control

Publications

"Cross-Border Class Actions from the Canadian Perspective", Co-authored with Jeffrey S. Leon, a chapter in the upcoming American College of Trial Lawyers Handbook on Cross-Border Litigation and Practice, 2007

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David A. Gourlay

"Access or Excess: Interim Costs in Okanagan", Author, University of Toronto Faculty Law Review 111, Vol. 63, No. 1, 2005

"A Class Act Comes of Age: Costs and Certification as the OLRC Report Turns Twenty", Author, Canadian Class Action Review 273, Vol. 1, No. 2, December 2004

"Establishing a Business Enterprise in Canada", Co-authored with C. Ian Kyer, chapter in the Fasken Martineau book, "Doing Business in Canada", Lexis Nexis, 2004

Memberships and Affiliations

Member, Canadian Bar Association

Member, Ontario Bar Association

Member, Advocates' Society

Member, Toronto Lawyers Association

Honours and Awards

Harvey T. Strosberg Essay Prize in Class Actions, 2004

Community Involvement

Duty Counsel, Small Claims Court in Toronto, Pro Bono Law Ontario

Duty Counsel, Law Help Desk, Superior Court of Justice in Toronto, Pro Bono Law Ontario

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DM_TOR/900030-00003/2774069.1

ENFORCEMENT OF ORDERS Methods of Enforcement

Overview

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_{An order for the payment or recovery of money may be enforced by a} writ of seizure and sale, garnishment, writ of sequestration, or the appointment of a receiver

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An order for the possession of land may be enforced by a writ of possession

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An order for the recovery of personal property other than money may be enforced by a writ of delivery or writ of sequestration

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An order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order Issues

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_{Should an examination in aid of execution be conducted?}

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Can the debtor be located?

Examination in Aid of Execution

Overview:

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_{An examination in aid of execution allows the creditor to examine the} debtor in relation to reasons for non-payment or non-performance of the order, income or property, debts owed and owing, disposal of property before or after order, present, past and future means to satisfy the order, any other matter pertinent to the enforcement of the order

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The creditor should specify in the Notice of Examination key

documents the debtor is required to bring to the examination to avoid reliance on the debtor’s undertakings to provide important information. For example, documents relating to RSPs, real properties, shares, bank statements, tax returns, pay stubs, etc.

Issues

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_{Can any assets be seized pursuant to a writ?}

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Can any income be garnished?

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Have there been any fraudulent conveyances, whereby the debtor has sought to “defeat, hinder, delay or defraud” creditors?

Garnishment

Overview:

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_{An order for payment of money may be enforced by garnishment of} debts payable to the debtor by other persons. This includes wages, money due under contracts, guaranteed investment certificates, bank accounts, payment due under a lease or mortgage, payment of royalties, payment under a promissory note and accounts receivable.

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The garnishee must pay the sheriff any amount owed to the debtor,

less $10 for the cost of making each payment, within 10 days of receiving the Notice of Garnishment

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Moneys received by the sheriff are divided among the creditors Issues

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_{Does the garnishee wish to dispute the notice of garnishment? If so,}

the garnishee’s statement and notice of garnishment must be filed and served on the creditor within 10 days.

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Did the garnishee fail to pay the sheriff the amount claimed, and not file a dispute? If so, the creditor may bring a motion on notice to the garnishee and is entitled to an order against the garnishee for payment

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DM_TOR/900030-00003/2774069.1

Writs

Overview

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_{Writs are issued by the court, and provide a direction to the sheriff to} take action against the debtor’s property

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A writ of seizure and sale directs the sheriff to seize and sell the real and personal property of the debtor to satisfy the amount of the order

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A writ of delivery directs the sheriff to effect delivery of personal

property which was the subject of the order

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A writ of sequestration directs the sheriff to take possession of and hold property and collect and hold income from the property. Leave is required.

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A writ of possession directs the recovery or delivery of possession of land. Leave is required.

Issues

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_{Has the writ been filed where the debtor resides (individual) or carries} on business (corporation), and where the debtor holds property (if different)?

Contempt Order

Overview

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_{Where is appears from an examination in aid of execution that a} debtor has concealed or made away with property to defeat or defraud creditors, a judge may make a contempt order against the debtor.

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A judge may issue a warrant for the arrest of the person against whom

a contempt order is sought where the judge is of the opinion that the person’s attendance at the hearing is necessary in the interests of justice and it appears that the person is not likely to attend.

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Where a finding of contempt is made, a judge may order that the person be imprisoned, pay a fine, do or refrain from doing an act, pay costs, and comply with any other order that the judge considers necessary.

Issues

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_{The three-part test for contempt must be met: (1) the order that was} breached must state clearly and unequivocally what should and should not be done; (2) the party who disobeys the order must do so deliberately and wilfully; and (3) the evidence must show contempt beyond a reasonable doubt.

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It's Not Really Over 'Til the Order is Enforced

By: David A. Gourlay and

Shelley D. Babin

What is a Court Order?

• Issued by the court

• Requiring action, allowing action, or prohibiting

action

• Judgment vs. procedural orders

• Declarations

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Isn't getting a court order enough?

• Pleadings

• Statement of Claim, Statement of Defence,

Crossclaims, Counterclaims and Third Party Claims

• Discoveries

• Motions

• Orders

• Trial

• Judgment

What is the difference between an order and

a judgment?

• Judgment is final

• Order can be interim or final

• “Order” includes a judgment

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What can I do to enforce an order?

• Examination in aid of execution

• Garnishment

• Wages, bank accounts

• Writs

• Seizure and sale

• Sequestration

• Receiver

What is an examination in aid of execution?

• Very wide-ranging examination, including:

• income and property; • debts owed and owing;

• reason for nonpayment and intention to pay; • disposal of property before or after order;

• present, past and future means to satisfy the order; and • any other matter pertinent to the enforcement of the order.

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What is garnishment?

• To enforce an order for payment of money

• Garnishment of debts payable to debtor

• Wages

• Inheritance

What is garnishment?

• Notice of Garnishment naming debtor, garnishee

• Garnishee is bank, employer, insurer, other debtor

• Notice of Garnishment valid for 6 years,

renewable

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What is Garnishment?

• Garnishee to pay sheriff any debt owing to the

debtor, less $10 for the cost of making each

payment, within ten days

• Garnishee’s statement if debt disputed

How do I find the debtor?

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To find the debtor’s:

(a) location in order to serve a notice of examination in aid of execution or

(b) employment, bank accounts, property, vehicles, debtors, inheritance, etc. for garnishment or seizure and sale

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Options:

(a) Private Investigators

Need to be aware of impact of PIPEDA

(b) Public Searches

Motor Vehicle Search (www.mto.gov.on.ca)

Land Registration Information System (POLARIS) Court File Search

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What is a writ?

• Issued by the court

• Direction to Sheriff to take action against

property

• Writ of Seizure and Sale

• Writ of Delivery

• Writ of Sequestration

• Writ of Possession

Writ of Seizure and Sale

• Writ of seizure and sale

• Personal or real property

• Consider other secured creditors

• Valid for six years subject to renewal

• Can be registered on title without seizure

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Writ of Seizure and Sale

• Sheriff to seize property

• Debtor must be notified of sale in advance

• Sale of land at least 6 months after issuance of

writ

Writ of Delivery

• Enforced by Sheriff

• Delivery of personal property where court order

directs delivery of property.

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Writ of Possession

• Proceeding for recovery/delivery of possession of

land

• Leave required

• Sufficient notice to allow defendants/respondents

to apply for relief

Writ of Sequestration

• Writ directing sheriff to take possession of and hold

property and to collect and hold income from the property

• Leave required

• Only available where court finds that other enforcement

measures are likely to be ineffective

• Court may order that writ be enforced against all or part of

debtor’s real and personal property.

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Can I recover the cost of enforcement?

• Partial indemnity costs of:

• Examination in aid of execution.

• Issuing, service, filing, enforcement and renewal of a

writ of execution and notice of garnishment.

• Any other procedure authorized by these rules for

enforcing the order.

• Collected by garnishment, writ etc.

What is a contempt order?

• Where it appears from an examination in aid of

execution that a debtor has concealed or made

away with property to defeat or defraud creditors,

a judge may make a contempt order against the

debtor.

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• An order to enforce another order requiring a

person to do an act or refrain from doing an act

• Discretionary fines or imprisonment “for such

period and on such terms as are just”

• Order to do or refrain from an act

• Writ of sequestration.

• Available against any officer or director of a

corporation

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Interlocutory orders

• Where party fails to comply with an interlocutory

order:

• stay of proceedings;

• Dismissal of action/application or striking out of

defence; or