IN THIS ISSUE:

2009 GUIDE TO THE LEADING US/CANADA CROSS-BORDER LITIGATION LAWYERS IN CANADA

Canadian Litigation Lawyers in the US – and for US Interests in Canada

By Jean Cumming

Canadian lawyers are well-trained and well-positioned for “cross-border” work. They make excellent “clients” for US law firms and just as excellent counsel to US firms and their clients. After all, just as Canadian businesses have had to globalize to find greater markets, so too have our nation’s professionals.

This sounds reasonable, but how does a US attorney or company determine which individual Canadian lawyers and law firms will provide the best counsel, service and cost-effectiveness? Many of you have turned to networks, be they drawn from American Bar Association meetings, actual law firm networks and/or various business development venues.

These are, of course, invaluable. However, Lexpert® offers an additional layer of assistance to you in your pursuit of the best of the best. Our rankings are based on peer surveys. Here you have an estimation of which lawyers their colleagues would recommend. We are especially proud of the very commendable response rate on our surveys. This year, 68 percent of those who received surveys completed and submitted them.

Lexpert® conducts surveys in all areas of business law practice in Canada for our Lexpert®/ALM Guide to the Leading 500 Lawyers in Canada, and for The Canadian Legal Lexpert®Directory. From these rankings, those litigation lawyers whose practices include a predominant cross-border component were selected for this Guide.

Included in this roster of litigators are several insolvency and restructuring lawyers. Some of this group would say that their role is partly litigation but mainly dealmaking. Either way, they could be especially useful profiles to get to know this year.

We trust you will find this Guide of considerable business value to you and to your firm. If you have any questions or concerns, please send them along to us.


 

Spam and Phishing and Spyware, Oh My!
Julius Melnitzer

Canada is currently the only G8 country and one of only four members of the Organisation for Economic Co-operation and Development that does not have anti-spam legislation. It’s not that spam isn’t a problem in the country: the Cisco 2008 Annual Security Report estimated that 4.7 percent of the world’s spam originated from Canada. That puts Canada in fourth place globally, outdone only by the US, Turkey and Russia.

But change is in the air. In April 2009, the federal government introduced Bill C-27, the Electronic Commerce Protection Act (ECPA), which aims to regulate spam, phishing, counterfeit websites and spyware.

Unlike other international anti-spam legislation, however, the anti-spam provisions of the ECPA are not limited to messages that may be harmful such as those containing some element of fraud or deceit. Indeed, ECPA prohibits the sending of any "commercial electronic message" (defined as any telecommunication including text, sound, voice or image) to an electronic address without the recipient’s prior consent, where the purpose of the message is to encourage participation in a commercial activity.

Supreme Points of View
Sandra Rubin
When lawyers for jailed Canadian-born newspaper baron Conrad Black drafted the petition for a writ of certiorari in his fraud conviction, they may well have tailored their arguments to the sentiments of a single judge: US Supreme Court Justice Antonin Scalia, the court’s leading conservative justice.

It would never have happened if Black were appearing in the Supreme Court of Canada. The highest courts of the two countries may seem very similar but look beyond the formal robes and you’ll find two completely different animals.

It flows from judicial appointments processes.

In Canada, Supreme Court nominees are recommended by the prime minister’s office following consultation with the provincial chief justices. Being a constitutional monarchy, the Governor General – the Queen’s official representative – makes the formal appointment.

The Lonely Litigators
Marzena Czarnecka
Two decades ago, as the silverbacks who make up the Canadian intellectual property litigation Bar were launching their careers, they thought they were living through an IP litigation renaissance. In 1989, they saw Canadian courts hand down 10 patent decisions — a new record.

And one that has remained unbroken – indeed, unthreatened – to this day.

"We see three to six patent trials a year in Canada, and have over the last five, 10 years," says Patrick Kierans, an IP litigator with the Toronto office of Ogilvy Renault LLP. Most top Canadian IP litigators are lucky to do a trial every two or three years.

"This year I have no cases going to trial on merit," says François Grenier, a partner and litigator with Montréal intellectual property boutique Leger Robic Richard, L.L.P. The last patent trial case he had was in 2005.
A Litigation Renaissance
Marzena Czarnecka
A year after the financial crash that decimated the value of energy stocks and pulled the plug on some $60 billion worth of oil sands projects in the Canadian North, the Calgary skyline is still dotted with cranes. But not all of them are moving, and more than a few have been dismantled, leaving gaping holes in the ground — a sight unseen in Canada’s energy capital since the price of oil plummeted to $9 a barrel in 1981.

Bad, bad news. Unless your practice area of choice happens to be construction litigation, an area that’s been eerily quiet in recent years across Canada — and nonexistent in the booming province of Alberta.

"We’ve had virtually no construction litigation for three years," says Donald Lucky, leader of the construction law practice at Edmonton’s Reynolds Mirth Richards & Farmer LLP (RMRF). "When we look at our ongoing construction litigation files, they are thin on the ground: the fewest we’ve had in 20 years."
Tobacco on Trial
Julius Melnitzer
In Canada, as in the US, unpopular causes are de rigueur for the business litigation defense Bar. And in both countries, public perception is a concern for litigating businesses, because perception, reputation and brand integrity are inextricably intertwined. So much so that this is frequently what the decision to settle is all about.

Settlement, however, is a different end game when public policy issues are at stake in cases involving governments.

"Cases that require a resolution in the public interest make for a very difficult route to settlement," says Dean Blain of Gowling Lafleur Henderson LLP.