Philip Patrick Healey

8 Lakeshore Blvd., Kingston, ON K7M 4J6

613-985-7078 Email: [email protected]

PRACTICE
Phil practiced as a litigator in Toronto for over three decades in two large law firms and then in
his own firm.

He has acted as counsel and argued many trials, appeals and applications for judicial review,
injunctive relief, and equitable relief, in matters involving commercial law; constitutional law (i.e.
in particular with respect to sections 1, 7, 15, 25, and 28 of The Charter of Rights and Freedoms
and section 35 of The Constitution Act, 1982); international law; professional negligence, liability
and discipline issues for and against lawyers, doctors, architects, and engineers; statutory
interpretation; employment law; defamation law; construction law; the enforcement of foreign
judgements; fraudulent conveyances and preferred assignments; patent law; shareholder
disputes; sexual assaults; medical malpractice; insurance law; franchise litigation; aboriginal law;
fraud; securities litigation; personal injury; family law; government regulatory schemes; real
estate law; copyright; internal First Nation issues including the creation of self-governments for
First Nations and the resolution of internal disputes; estate litigation; municipal law,; civil
conspiracy; the enforcement of letters rogatory; criminal law; conflicts of interest; solicitor
assessments; bankruptcy and insolvency law; construction lien litigation; real estate
development and store war cases concerned with the application of proper planning principles
to for example the development of Toronto’s Harbourfront and the opening of retailers opposite
objections from competitors; civil procedure; contractual negligence and breach of contract
cases; and intellectual property.

Phil has often appeared as counsel before the Supreme Court of Canada; the Ontario, Alberta
and Federal Courts of Appeal; the Ontario Divisional Court; the Ontario Superior Court; the
British Columbia Supreme Court; the Alberta Court Queen's Bench; the Federal Court (Trial
Division); the Ontario Court of Justice; the Singapore High Court; other Courts; and before many
International and Domestic Tribunals, including the Singapore International Arbitration Centre,
the Ontario Municipal Board, the Ontario Securities Commission, the Human Rights Tribunal,
the Labour Relations Board and the Commercial Registration Appeals Tribunal.

Representative clients have included the City of Toronto; the Ontario Association of Architects;
the Lesser Slave Lake Indian Regional Council (which consisted of 8 First Nations in Northern
Alberta); the Ottawa BluesFest Music Festival; the Ontario New Home Warranty Program; the
Ontario Association of Engineers; the Blackfoot Confederacy of First Nations (which consisted of
5 First Nations in Southern Alberta); the Town of Newcastle; the Pafco and Symons Insurance
Company’s; and various other First Nations, corporations, builders, municipalities, insurers,
insureds, doctors, lawyers, architects, engineers, and other individuals, whether they be a victim
of the infamous Colonel Williams, a premier of a province, a chief executive officer of a public or
private corporation, a proprietor of small business, a women who has experienced domestic
violence, or, simply an individual involved in litigation.

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SPECIAL DESIGNATIONS

William S. O'Hara Prize in Criminal Law, Queen's University.

Prepared, with Chief Justice Lamer, the Self-Government Bill of the Cree Sawridge First Nation.
Presented the Self-Government Bill of the Cree Sawridge First Nation to the Canadian Senate.
Awarded the name Soft Wind from the South from the Wahta Mohawk First Nation.
Guest Speaker at two Conferences for Federal Court Judges addressing First Nation issues.
Main speaker at many Elder Conferences for the Cree, Mohawk, Blood, and other First Nations.
Strong advocate for and participant in Pro Bono Work, especially in domestic violence cases.
Instructing counsel providing direction for Canadian clients litigating in the United States.
Held Three Day Seminar on Self- Government for the Chiefs of Canada at Chateau Laurier.
Frequent Speaker at Conferences and Seminars on Defamation Law and The Rules of Procedure.
Author of Legal Articles Addressing Commercial and Constitutional Issues.
Consultant to Academic Authors of Textbooks Addressing Constitutional Law Issues.

MEMBERSHIPS

Toronto Lawyers Association

Canadian Bar Association
Member of the Law Society of Upper Canada
Calls to the British Columbia and Alberta Bars for Individual Cases

EDUCATION

LL.B., Queen's University, 1985

B.A. (Hons.), Economics and History, Victoria College, University of Toronto, 1982

REPRESENTATIVE CASES AND TRANSACTIONS

Supreme Court of Canada

Valerie Frances Sloan, David Robin Sloan and Cave Hill Properties Ltd. v. Indcondo Building
Corporation, 2013 CanLII 384 (SCC) (Coram: Fish, Rothstein and Moldaver JJ.) – a leave
application concerned with the implementation of provisions of The Limitations Act, 2004 to an
action brought late but pursuant to Orders allowing a bankrupt debtor to commence
proceedings based upon breaches of The Fraudulent Conveyances Act and The Assignment and
Preferences Act. This case was unusual for various reasons including the fact that the delay was
inordinate but was combined with a fact situation which, having regard for bankruptcy and
insolvency law and the principles about discovery contained in The Limitation Act, raised
questions about the application of a limitation period defense.

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Sawridge Band v. Minister of Indian Affairs and Northern Development, 2010 CanLII 20569
(SCC) (Coram: McLachlin C.J. and Abella, Rothstein JJ.) - a leave application concerned with
whether the Minister of Indian Affairs and Northern Development was prohibited from disclosing
to a requestor the audited consolidated financial statements of a First Nation. The appeal
required statutory interpretation by the Court concerning section 8(2)(b) of The Indian Band
Revenue Monies Regulations (i.e. which required that First Nations that have been given control
of their revenue to have their accounts audited and posted) versus section 20(1)(b) of The Access
to Information Act (i.e. which exempted from disclosure "confidential" information of a First
Nation). The question raised by the appeal therefore was whether the financial statements of the
First Nation fell within the definition of "confidential" for the purposes of section 20(1)(b) of The
Access to Information Act ; and whether the test for determining the confidentiality of
information under section 20(1)(b) is an objective or subjective test.

Sawridge Band v. Her Majesty the Queen - AND - Tsuu T'ina First Nation v. Her Majesty the
Queen, 2007 CanLII 2922 (SCC) (Coram: McLachlin C.J. and Charron, Rothstein JJ.) – a leave
application concerned with the statutory interpretation of pleadings and in particular whether a
First Nation's right to a broad claim to self-government is a justifiable right recognized pursuant
to section 35 (1) of The Constitution Act, 1982. This was the first time, since the Supreme Court
released its decision in Delgamuukw v British Columbia, that the Supreme Court addressed the
broad aboriginal and treaty right of self-government, as referred to in The Report of The Royal
Commission of Aboriginal Peoples, 1996.

Milani v Stabile, 2004 (SCC) 2004 SCCA No. 472 (Coram: Major, Fish and Abella JJ.) - successfully
resisted a leave application concerned with an action based in civil conspiracy and application of
The Fraudulent Conveyances Act. After having been presented with Phil’s argument, the panel of
Judges listed above, like the panel of Judge’s whose decision this panel was reviewing, agreed
with the panel of Judges below that the trial Judge’s findings about civil conspiracy were not to
be interfered with.

Smallboy v. Roan, 2002 SCCA No. 453 (Coram: McLachlin C.J. and Bastarache, Deschamps JJ.) - a
leave application concerned with the appropriate standard of review by an appellate Court on a
motion to disqualify a solicitor for conflict of interest. This case was unusual not because of any
concerns about the applicable test but rather because the two retainers that were being
considered raised, in the first retainer, an aboriginal custom which could be protected by section
35 (1) of The Constitution Act, 1982; and, in the second retainer, a possible modern day
expression of that protected custom. In the result, the motion was based upon an analysis which
required the court to consider the principles enunciated in the jurisprudence about modern day
expressions of pre-contact customs and practices.

Hodgson v. Canadian Newspapers Co., 2001, SCC Bulletin 823, 2001 SCCA No. 465 (Coram:
Gonthier, Major, and Binnie JJ.) - successfully resisted a leave application concerned with the
appropriate standard of review for defamation awards made by a Judge sitting without a jury and
whether, in a defamation case, a defendant can be held liable for damages which result from the
independent act of a statutory body. In this case, the Supreme Court was reviewing a judgement
at trial awarding what was, at the time, the largest award in Canadian history. The trial Judge’s
decision and that of the Ontario Court of Appeal, both of which decisions were obtained with
Phil acting as counsel, were ultimately upheld.
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Corbiere et al. v. Her Majesty The Queen et al., 1999 SCR 203 (Lamer C.J. and L'Heureux Dube,
Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache, Binnie JJ.) – successfully acted on an
appeal concerned with the constitutionality of the residency eligibility requirements prescribed
pursuant to The Indian Act, section 77. The question raised concerned whether that provision of
The Indian Act, requiring individual First Nation band members to be a resident on the reserve to
vote, breached section 15 of The Charter of Rights and Freedoms. Put otherwise, is section 15
discrimination against non-resident First Nation band members nevertheless permissible because
of the cultural rights, including the right of franchise, which are recognized and protected by
section 35 (1) of The Constitution Act, 1982? The Court struck section 77; gave Parliament a
period of time to address the matter; and made various recommendations concerning
implications of its decision.
The Sawridge Indian Band and the Sarcee Band v. Her Majesty The Queen et al., 1997 (SCC)
1997 SCCA No. 430 (Lamer C.J. and L'Heureux Dube, Gonthier, Cory, McLachlin, Iacobucci,
Major, Bastarache, Binnie JJ.) - successfully represented two First Nations responding to various
motions seeking party status, funding and leave to appeal a decision which found a reasonable
apprehension of bias (1997) S.C.C.A. No. 430 on the part of a trial Judge. The motions were
dismissed with costs. This was a somewhat unprecedented situation as the finding of
apprehended bias had been made against a trial Judge who had presided over a very lengthy trial
concerned with the section 35 (1) constitutional rights of First Nations as prescribed by The
Constitution Act, 1982. Phil’s clients were the only parties to raise the rarely used reasonable
apprehension of bias argument in the Federal Court of Appeal; were joined during oral argument
by other counsel; and the position was upheld. In fact, after the end of the proceedings, the
other two plaintiff parties (i.e. who at first refused to adopt the apprehended bias argument but
then, during oral argument, and after observing that the Court seemed interested in this very
rarely used assertion - there is almost certainly no other case where an assertion of apprehended
bias was raised against a trial Judge in such circumstances - but not Phil’s client which, in this
case, was the Sawridge First Nation) made a discipline complaint to the Judicial Discipline
Committee which was comprised of three Chief Justices of the provinces. The Judicial Committee
concluded that the trial Judge would never be allowed to adjudicate a case involving aboriginal
issues again and further held that but for the trial Judges long standing career of service, which
was substantial, he would have been removed from the Bench.

Sturgeon Lake Indian Band et al. v. Attorney General of Canada et al. 1997 (SCC) 1997 SCR 309
(Lamer CJ. and La Forest, L'Heureux Dube, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and
Major JJ.) – represented a First Nation in an appeal from a decision declaring that an individual
need not be an elector pursuant to The Indian Act to be a candidate for the position of Chief. The
appeal required statutory interpretation by the Court concerning the relevant provisions of The
Indian Act opposite the First Nation’s asserted aboriginal and treaty rights recognized and
affirmed by section 35 (1) of The Constitution Act 1982; but was, ultimately, determined to be
moot.

Goodswimmer et al. v. The Attorney General of Canada et al., 1996 (SCC) 1996 SCC Bulletin
p.851 (Lamer CJ.) - a motion to state a constitutional question in a statutory interpretation
appeal. On this motion, the Chief Justice was obliged to determine whether statutory provisions
in The Indian Act could constitute legislative recognition of section 35 (1) aboriginal rights in that
the provisions themselves constituted a legislative expression of those rights; and, if so, whether
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those rights should prevail over the interpretation of the relevant provisions of The Indian Act by
the Federal Court of Appeal.

Corbiere et al. v. Her Majesty The Queen et al., 1995 (SCC) 1995 SCCA No. 625 (Iacobucci J.) –
successfully obtained leave to intervene in a case concerned with the constitutionality of the
residency eligibility requirements prescribed pursuant to The Indian Act. In this case, the Court
was obliged to balance the interest between on-reserve and off-reserve members of a First
Nation and determine (a) whether certain provisions of The Indian Act infringed the section 15 of
The Charter of Rights and Freedoms rights of the off reserve members; and (b) whether those
provisions were, if they so infringed those rights, saved by section 1 of The Charter of Rights and
Freedoms and/or sections 25 and 28 of The Charter of Rights and Freedoms in conjunction with
section 35 (1) and 35 (4) of The Constitution Act, 1982.

Sturgeon Lake Indian Band et al. v. Attorney General of Canada et al., 1995 SCCA No. 246
(Coram: L'Heureux Dube, Sopinka, McLachlin JJ.) – successfully obtained leave to appeal from a
decision declaring that an individual need not be an elector pursuant to The Indian Act to be a
candidate for the position of Chief of a First Nation. The decision below left it open for non-
aboriginal persons to become Chiefs. This case again therefore was one of those cases where the
Court was required to balance a specific provision of The Indian Act with the governmental rights
of First Nations recognized and affirmed by section 35 of The Constitution Act, 1982.

Ontario Court of Appeal

Indcondo Building Corporation v. Sloan, 2015 ONCA 752 (Strathy C.J.O., Gillese and Blair JJ.A.) –
successfully responded to an appeal of a trial Judge dismissing in large part a claim for 20 million
dollars based upon alleged breaches of The Fraudulent Conveyances Act and The Assignment and
Preferences Act. In this appeal, the Court had to address, inter alia, the unique circumstance of
whether a payment to a debtor could constitute a fraudulent conveyance pursuant to The
Fraudulent Conveyances Act.

Massicotte v. Williams, 2014 ONCA 792 (Hoy A.C.J.O., Epstein and Hourigan JJ.A.) – In this case,
Laurie Massicotte, a neighbor of Colonel Williams, who was ambushed in her living room and
sexually assaulted less than two months before Mr. Williams committed his first murder, and her
family, brought a motion to amend their statement of claim, as originally pled in 2011, to include
a new allegation; namely that The Canadian Forces Superannuation Act, which shields military
pensions from Court actions, violated her Charter rights because it deprived her of potential
compensation. Simply put, Ms. Massicotte sought to claim that a woman who endured what she
did should have every legal right to pursue her attacker’s pension. Ultimately, the question
raised was whether Ms. Massicotte should be allowed to claim that the military’s pension plan,
as prescribed by The Canadian Forces Superannuation Act, breached her rights to life, liberty and
security, as prescribed by section 7 of The Charter of Rights and Freedoms, 1982. The Court
found that the motion was premature, directed that it should be brought back on if Ms.
Massicotte and her family could not collect all that they might be awarded, and directed that
there be no costs incurred for the motion.

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Khan v. Metroland Printing, Publishing & Distributing Ltd., 2013 ONCA 571 (Feldman, Tulloch
and Lauwers JJ.A.) – representation of a plaintiff whose action was dismissed for want of
prosecution. In this case, the Court was obliged to address the factors in the case law, such as
delay and the reasons for delay caused by a plaintiff, which apply in such circumstances; but also
the delay and reasons for delay caused by a defendant and how that delay is factored into the
analysis.

Indcondo Building Corporation v. Sloan, 2012 ONCA 502 (Goudge, Sharpe and Juriansz JJ.A.) –
an appeal seeking an award for 20 million dollars based upon alleged breaches of The Fraudulent
Conveyances Act and The Assignment and Preferences Act. In this case, the Court had to address
application of the doctrines of res judicata, issue estoppel and collateral attack; and in doing so,
decide whether the action should be allowed to proceed, given what one Commercial Court
Judge called a “torturous history” caused largely by the plaintiff. Phil acted for the defendants,
who were unsuccessful with this interlocutory appeal but ultimately succeeded in the Court of
Appeal on all major issues in the case reported at 2015 ONCA 752.

lndcondo Building Corp. v. Sloan et al., 2012 ONCA 83, 211 ACWS (3d) 811 (Armstrong J.A.) -
represented a party seeking an Order requiring a law firm acting for the opposite party to post
security for costs in the amount of $375,000. The Order was sought because (a) the law firm was
acting on a contingency fee basis where the law firm, if the opposite party was successful, would
be paid six million dollars; and (b) the law firm (i.e. as it was alleged) was running up the costs for
the plaintiff with a strategy of delay. This is the first time that this issue (i.e. whether law firms
acting on a contingency basis may, in appropriate circumstances, be required to pay costs or post
security for costs on behalf of their clients) has been raised and determined in Ontario and so the
Court provided guidelines for such situations.

Nicholls v. David et al., 2010 (Ont. C.A.) 2010 OJ. No. 1985 (Winkler C.J.O. Armstrong and
Epstein JJ.A.) - a motion seeking an Order requiring the rehearing of an appeal on the basis that
a statutory provision raised by the panel, that had not been previously raised by either counsel,
and ultimately relied upon by the panel to dismiss the appeal, caught counsel by surprise. Phil
did not argue the matter at first instance and therefore was not one of the counsel caught by
surprise.

Abenar Energia S.A. v. Sunopta Inc., 2010 ONCA 57 (Sharpe, McFarland, Watt JJ.A.) - an appeal
concerned with whether the doctrine of equitable set off constituted an exemption to Article 35
of The Model Law. The appeal, essentially, determined whether a Spanish arbitral award should
be enforced in Ontario.

Assessmed Inc. v. Canadian Broadcasting Corporation, 2006 CanLII 18619 (ON CA) (Goudge,
Sharpe, and Laforme JJ.A.) - an appeal of a defamation action brought by AssessMed Inc. and
various physicians (i.e. neuropsychologists, neurologists, orthopedic surgeons, neurosurgeons
and others) against the CBC in relation to a Fifth Estate program where the company and
physicians alleged that the CBC defamed them by portraying them as doctors in the pockets of
insurance companies. The defenses raised in this case were based upon the common raised
defenses of justification and fair comment; the defense of justification was struck because it was
not properly pled and because of the prejudice that resulted to Phil’s clients in the result; and
the Court was, therefore, obliged to address just the issues arising when applying the defense of

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fair comment in mass media productions. In particular, whether the alleged libelous comments
were statements of fact or opinion; and whether the defamatory comments were based upon
facts that were substantially true.

Khan v. Metroland Printing, Publishing and Distributing, 2005 (ON CA) 2005 75 OR (3d) 165
(Simmons, Gillese and Laforme JJ.A.) – successfully responded to an appeal concerned with the
test for posting security for costs in libel and slander proceedings. The question raised was
whether the test was governed pursuant to The Rules of Civil Procedure or The Libel and Slander
Act, both of which provided rules for the posting of security. This was an appeal from a
unanimous decision of a panel of the Divisional Court. The Court of Appeal upheld the decision
of the panel of the Divisional Court, namely that the test prescribed by The Libel and Slander Act
prevailed, but for different reasons. Phil, therefore, was successful in both Courts but on two
different and alternative arguments.

Duca Community Credit Union v. Benito Giovannoli, Sam Stabile, Sarten Manufacturing Limited
et al., 2003 ONCA 2003 O.J. No.3550 (Abella, Borins, and Armstrong JJ.A.) – successfully
responded to an appeal of the decision of Madam Justice Mesbur dismissing an action based in
civil conspiracy. The appeal also dealt extensively with issues concerned with the Fraudulent
Conveyances Act and The Assignment and Preferences Act; and a very detailed attack on the
findings of fact of the trial Judge.

Hodgson v. Canadian Newspapers Company Limited. et al. ONCA 49 O.R. (3d) 1621
(McMurtry C.J.O, Goudge and Sharpe JJ.A.) – successfully represented the former Commissioner
of Engineering for the Region of York in the appeal from the trial decision of Mr. Justice Lane in
which damages were awarded against the Globe and Mail in the amount of $880,000. The
appeal, which was dismissed, addressed issues in connection with all defenses available in a libel
proceeding, including the rare issue of when punitive damages should be awarded in a
defamation case.

Mcleod v. Castlepoint Development Corporation, et al., 1997 ONCA 31 O.R. (3d) 737 (Wieler,
Rosenburg and Moldaver JJ.A.) - represented a developer in an appeal raising issues concerned
with the validity of cautions registered on title, the means by which invalid cautions may be
removed from title, the test to be applied when determining whether a caution should be
continued or removed, and rights of first refusal.

Trevor Nicholas Construction v. Symons General Insurance et al., 1997 ONCA 1997 OJ No. 1670
(Catzman, Doherty, Moldaver JJ.A) – successfully responded to an appeal from a decision of a
trial judge dismissing for want of prosecution a plaintiff's claim for insurance proceeds arising
from an alleged theft of construction equipment. In the appeal, the appellant filed affidavit
evidence listing alleged inappropriate behavior of the motions Judge. The panel, however, once
shown that the appellant had, in the proceeding, unfairly attacked other Judges in a similar way,
upheld the decision of the Judge below.

Trevor Nicholas Construction v. Pitts Insurance Co., 1997 ONCA 1997 OJ No. 954 (Brooke,
Osborne, Goudge JJ.A.) – successfully resisted an application for leave for a personal
representative to appear on an appeal on behalf of a corporate defendant. The panel, having

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been provided with examples where the moving party personal representative (i.e. who also was,
for all intents and purposes, the appellant) had not complied with the rules which govern all
lawyers, directed that the personal representative be required to retain counsel

Budget v. Petro Canada, 1989 ONCA 1989 69 OR (2d) 289 (Brooke, Finlayson, and Griffiths JJ.A.)
– successfully represented a lessee in an appeal from an application concerning the
interpretation of a lease containing provisions for an automatic renewal option and a right of first
refusal.

Quay West v. Corporation of the City of Toronto, 1989 ONCA 1989 47 MPLR 109 (McKinlay,
Griffiths and Catzman JJ.A.) – successfully resisted an application for leave to appeal a decision
of the Divisional Court refusing to grant an Order for mandamus to compel issuance of a building
permit for the development of the Harbourfront of Toronto.

Alberta Court of Appeal

Smallboy v. Roan, 2002 AJ No. 14612002 ABCA 284, 119 ACWS. (3d) 147 (Conrad, Fruman and
Ritter JJ.A.) - an appeal from an Order arising from a motion for disqualification of counsel due to
a conflict of interest. The Court was obliged to determine whether previous retainers, which
addressed aboriginal and treaty rights, were sufficiently connected to the present retainer to
meet the test. What was unusual about this case was that, because of the nature of the retainers
in play, with one addressing aboriginal customs practiced perhaps a thousand years ago, and the
other being concerned with what arguably are modern day expressions of those customs, the
Court was obliged to consider the aboriginal right jurisprudence addressing how aboriginal rights
are not to be frozen in time. That jurisprudence, of course, simply confirms, as one would expect
would be the case, that the customs of aboriginal peoples have evolved over time, just as our
customs have.

Federal Court of Appeal

Twinn v. Poitras, 2012 FCA 47 (Evans, Pelletier and Stratas JJ.A.) - an appeal from a decision of a
case management Judge who declared that certain allegations of the plaintiff First Nation’s pleading
were moot and therefore could not be litigated in the case at bar. The issues which the Court
upheld were moot were the allegations raised by the plaintiff First Nation asserting its section 35(1)
rights of self-government and self-determination. Quite unusually, in this case, in holding that
these allegations were moot, the panel relied upon a decision of another Federal Court trial Judge in
another proceeding involving this First Nation and concluded that that other trial Judge had made
final determinations of these alleged rights. It is unusual, however, because the decision which the
panel relied upon as having made these final determinations expressly states in it that such final
determinations had not been made and were not being made. Accordingly, this panel was in
disagreement with the Judge who wrote the decision about what was and wasn’t being decided in
the decision but relied on the decision anyway to uphold a finding of mootness and thereby deprive
the First Nation of its right to litigate the question.

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Twinn v. Poitras, 2011 FCA 310 (Stratas J.) - successful response to a motion brought by the Crown to
dismiss a claim brought by a First Nation asserting their section 35(1) self-government rights as
recognized and affirmed by section 35(1) of The Constitution Act, 1982.

The Sawridge Indian Band v. Her Majesty the Queen, 2009 4 CNLR. 340 (Evans, Layden-
Stevenson and Ryder JJ.A.) - successful representation of a First Nation on an appeal from an
application under section 44(1) of The Access to Information Act, prohibiting the Minister of
Indian Affairs and Northern Development, from disclosing to a requestor, the audited
consolidated financial statements of the First Nation. The appeal required statutory
interpretation by the Court concerning section 8(2)(b) of The Indian Bands Revenue Monies
Regulations (i.e. requiring First Nations that have been given control of their revenue to have
their accounts audited and posted) versus section 20(1)(b) of The Access to Information Act (i.e.
which exempted from the disclosure the “confidential information” of a First Nation). The
question raised by the appeal therefore was whether the financial statements of the First Nation
were confidential information for the purposes of section 20(1)(b).

L'Hirondelle et. al. and Starlight et. al. v. Her Majesty The Queen, 2002 FCJ. No.1684, 2002 FC
346, 213 FTL 57, 283 NR 107 (Linden, Rothstein and Malone JJ.A.) – a successful appeal
concerned with the propriety of using transcripts of evidence from a trial in circumstances where
the Federal Court of Appeal had allowed an appeal on the basis that the trial Judge had
demonstrated a reasonable apprehension of bias. The Court was obliged to determine whether
its finding concerning the conduct of the trial Judge resulted with the evidence from the first trial
being tainted. The Court, ultimately, concluded, that counsel would have to make submissions to
the new trial Judge with respect to the use of those earlier transcripts. This was what Phil’s
clients wanted because the use of the now transcribed oral history from the first trial meant that
that evidence would not have to be called again. It also, of course, resulted with significant
savings to Phil’s clients.

L'Hirondelle et. al. and Starlight et. al. v. Her Majesty The Queen, 2001 FCA 341, 283 No. 116,
109 ACWS (3d)874 (Linden, Malone, Rothstein JJ.A.) – successful representation of two First
Nations in an appeal concerned with the status of Interveners and the scope of intervention of
various interveners for a pending trial. The Court was obliged to provide guidelines for various
interveners who sought to address the same or similar positions of the Crown. In light of the fact
that all of the intervenors supported the position of the Crown (i.e. it would not be unusual in
this case for Phil to be arguing against eight or nine counsel at any given day of the pre-trial or
the trial itself), the Court put restrictions on the participation that the intervenors would have.
For example, the intervenors would be allowed only one cross-examination of Phil’s witnesses
(i.e. as opposed to each intervenor counsel having the right to cross-examine), and intervenor
counsel would not be permitted to cross-examine Phil’s witnesses in areas where Phil’s witnesses
had already been cross-examined by the Crown.

L'Hirondelle et. al. and Starlight et. al. v. Her Majesty The Queen, 2001 164 FCA 339, 283 MR
112, 2001 FCJ No. 1686, 216 FTR 162 (Linden, Rothstein and Malone JJ.A) - an appeal concerned
with whether claims brought by two different First Nations alleging identical aboriginal and treaty
rights for self-government and membership determination pursuant to section 35 of The
Constitution Act should be heard together or separately and whether a third First Nations similar
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claims should be struck. This Court was, of course, addressing issues of consolidation and joinder
simply because of the nature of the retainers involved and the relatively new jurisprudence
about such retainers.

Huzar, Kolosky and McGillivray, et. al. v. Her Majesty The Queen and the Sawridge Indian Band,
2000 FCA SCJ No. 873 (Decary, Sexton and Evans JJ.A.) – successfully represented a First Nation
in an appeal from an interlocutory order of Mr. Justice Campbell which dismissed a motion to
strike a statement of claim as disclosing no reasonable cause of action. The claim sought, inter
alia, $11,000,000 in damages. The Court of Appeal reversed the decision below, struck the claim,
and, in the result, the First Nation was no longer hampered in its financial and/or other dealings
with this unmeritorious claim.

Walter Patrick Twinn, suing on his own behalf and on behalf of all members of the Sawridge
Indian Band, et al. v. Her Majesty the Queen, et al. 1997 FCA FCJ No.761 (Isaac CJ. Strayer and
Linden JJ.A.) – successfully represented two First Nations in an appeal from a trial in the Federal
Court (Trial Division) concerning the recognition and enforcement of section 35 aboriginal and
treaty rights of self-determination. The Federal Court of Appeal ordered a new trial upon
concluding that the record disclosed the basis for a finding of reasonable apprehension of bias on
the part of the trial Judge. This is an almost certainly unprecedented ruling as the trial was very
lengthy and addressed the constitutional rights of First Nations. It is also, in Phil’s opinion, the
worst thing that could be said by an appellate court about a trial Judge, especially in these
circumstances.

Batchewana Indian Band (non-resident members) v. Batchewana Indian Band, 1996 FCA FCJ
No. 1486 (Stone, Linden and McDonald JJ.A.) – successfully represented eight First Nations in an
appeal concerning a section 15 Charter challenge to section 77 of The Indian Act, which section
excluded non-resident members of Bands from participating in the democratic decision making
process of their communities.

Sturgeon Lake Indian Band and Lesser Slave Lake Indian Regional Council et al. v. The Minister
of Indian Affairs and Northern Development, et al., 1995 FCA FCJ No 454 (Stone, Strayer and
McDonald JJ.A.). - successfully represented nine First Nations and their Elders in an appeal
concerned with whether a person who is not an elector of an First Nation was, as a matter of
interpretation of The Indian Act, eligible to be a candidate for, and may be elected as, Chief of
the First Nation. Leave to appeal to the Supreme Court of Canada was granted in 1995.

Ontario Divisional Court

Khan v. Metroland Printing, Publishing and Distributing, 2003 (Ont. Div. Ct.) 68 O.R. (3d) 135
2003 OJ No. 4261 Court File No. 98-CV-140288 Divisional Court File No. 461/01 (Lane, Meehan
and Linhares de Sousa JJ.) – successfully responded to an appeal from a decision awarding
security for costs in a defamation proceeding. The appeal required the Court to address whether
the test for providing security pursuant to The Rules of Civil Procedure applied in a case where a
statute, namely The Libel and Slander Act section 12, provided for a different procedure. The

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appeal therefore required the Court to address the interplay between section 12 of The Libel and
Slander Act and Rule 56.09 of The Rules of Civil Procedure.

Khan v. Metroland Printing, Pubilshing and Distributing, 2001 (Ont. Div. Ct.) OJ No. 4272, 109
A.C.W.S. (3d) 669 (Then J.) – a successful leave application concerned with the applicability of
The Libel and Slander Act to awards of security for costs in libel and slander proceedings. Then J.
held that leave should be granted because there was good reason to doubt the correctness of
the decision below, which decision itself was based upon Rule 1.02 (1) (3) and the observations
of the judge below who established his jurisdiction to impose security by a combination of Rule
1.05 and Rule 56.09.

Saxton Investments Ltd. v. Hurley, et al, 1998 (Ont. Div. Ct.) OJ No. 3079 (O'Driscoll J). –
successfully represented shareholders by obtaining an Order overturning certain injunctive relief
and granting other mandatory injunctive relief in oppression remedy proceedings.

Fenwick v. Rumack, 1993 (Ont. Div. Ct.) 27 CBR (3d) 235 (Steele J.) – successfully brought an
appeal from a Master's Order discharging a certificate of pending litigation and granting
summary judgment in a Fraudulent Conveyances Act action.

Toronto Transit Commission et al. v. City of Toronto et al., 1990 (Ont. Div. Ct.) 2 MPLR (2d) 42,
42 OAC 20, 30 OMBR 353 (0'Brien J.) - successfully resisted an application for leave to appeal a
decision of the Ontario Municipal Board upholding a down-zoning by-law with respect to the
Rosedale Subway Station. The decision is important for settling the test for determining when
leave from the Ontario Municipal Board should be granted to the Divisional Court.

Quay West v. Corporation of the City of Toronto, 1989 (Ont. Div. Ct.) 47 MPLR 109 (Southey,
Saunders and Gray JJ.) – successfully resisted an application for an Order for mandamus to
compel issuance of a building permit for the development of Harbourfront in downtown Toronto.

Ontario Superior Court / Ontario Court of Justice

The Ottawa Bluesfest v Halsey, Leaving Things Behind Touring Inc. ( "LTBT" ), and the Paradigm
Talent Agency ( "PTA" ) ( 2019 ) - In this case, Phil successfully defended the Ottawa Bluesfest
Music Festival opposite a popular artist and her New York agent who threatened proceedings
asserting a claim for 425.000 dollars for an alleged breach of contract concerned with the
advertising artwork used by the Ottawa Bluesfest Music Festival to promote the festival and the
artists who perform at the festival. The proceeding was brought to a halt when Phil responded to
the threats by outlining that it was not his client but the artist and the artist's agent who were in
breach; and that it was the Ottawa Bluesfest Music Festival, not the artist or her agent, that had
the meritorious claim. In the end, the artist and her agent resiled from their position and Phil's
client decided to not pursue it's claim.

Lindros vs Stewart & The Huffington Post (2016) (Ont. Supreme Court) - In this case, Phil acted
for Paul Stewart , a retired NHL referee, who had (i.e. because of health reasons) fallen on hard
times; and the Huffington Post, who were being sued by Eric Lindros, a retired NHL player for 3
Million Dollars. The proceeding arose out of an incident that occurred years prior when Mr.
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Stewart was refereeing a game in Philadelphia where Mr. Lindros (i.e. then a number 1 draft pick
for the Flyer's) was playing; and more specifically arose as a result of a story that Mr. Stewart
wrote on a blog that he had started years after the fact about that incident. The story in Mr.
Stewarts blog in the Huffington Post, was that after this particular game was over, Mr. Lindros,
who was supposed to sign some posters of himself to donate to a children’s charity, refused to
sign the posters and instead (i.e. for what were childish reasons) tore up the posters and threw
them in the garbage. In any event, Mr. Lindros, upon discovering the blog, claimed that he had
been unfairly defamed. He demanded an immediate retraction and apology and as aforestated
significant damages. He took the position that unless this retraction and apology were provided
and the damages paid immediately, he would financially destroy Mr. Stewart. Phil took the case;
advised Mr. Lindros that Mr. Stewart and the Huffington Post would not apologize or retract or
pay any damages because the story was true; informed Mr. Lindros that Mr. Stewart and the
Huffington Post would be calling other NHL players (i.e. some of whom had become NHL
executives - the list included people such as Phil Esposito, Bobby Clarke, Brian Leetch and Mark
Recchi) to, if need be, testify on his clients behalf; and further informed Mr. Lindros that his
threat of starting proceedings and financially destroying Mr. Stewart was not only an empty
threat but was something that did nothing more than bring added attention to some
embarrassing conduct by Mr. Lindros (i.e. which, of course, is something that Mr. Lindros might
have considered before taking the position he did). In the end, Mr. Lindros dropped the lawsuit
and Mr. Stewart's blog in the Huffington Post remained unchanged.

Kendall et al. v. Intact Insurance, (2016) (Ont. Supreme Court) – successfully represented a
police officer and his family (i.e. wife and three children) after he was sideswiped by another
driver while going through an intersection. In the result, the police officer’s neck was broken
and he, his wife, and children suffered. Throughout the process, the insurer would not offer
more than approximately $100,000 to settle the case. However, after Phil, over a period of time,
pressed the insurers to pay what was owed (i.e. Mr. Kendall had a claim for his general damages,
and an income loss claim, and his wife and three children had Family Law Act claims which were
more substantial than usual); and after Phil, in conjunction with the positions asserted on behalf
of his clients as just stated, took the position that his clients, because of the manner in which
they had been treated by the insurer (i.e. and Phil is a strong proponent that any insured’s
counsel take this position if it is warranted), also had a bad faith claim, the case was settled
before a Mediator and the Kendall family received all that they were owed.

The Wahta Mohawk Council vs Members of the Wahta Mohawk Acting in Their Own Capacity
and on behalf of Other Members of the Wahta Mohawk, 2015 (Ont. Supreme Court) (Campbell
J.) – In this case, an elected Council of the Wahta Mohawk were being challenged as not having
been properly elected when that was not the case. Those who challenged the Council alleged
fraud, ballot tampering, and essentially everything that one would think could be raised in such a
claim. They also went so far as to get a majority of the electors to sign a petition declaring the
election void and in that regard referred the Court to the Wahta Mohawk Membership and
Election Act that spoke to the use of petitions. However, after Phil’s cross examination of the
challenging members and his argument to the Court, the challenging members agreed to
withdraw their challenge and pay the Council (Phil’s client) all of their costs.

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Massicotte et al. v. Williams et al., 2014 (Ont. Supreme Court) (Tranmer J.) – successfully
represented the victim of a sexual assault by the infamous Colonel Williams. The claim, brought
by Ms. Massicotte and her three daughters, sought damages for Ms. Massicotte against Mr.
Williams for the sexual assault; damages for Ms. Massicotte against Mr. Williams and his wife for
the fraudulent conveyance of their assets once Mr. Williams confessed to the crimes; damages
for Ms Massicotte against Mr Williams wife for not reporting her husband to the authorities;
damages for Ms. Massicotte from the Ontario Provincial Police for their negligent investigation
and for their failure to warn Ms. Massicotte and others, as required by the case law, that there
was a predator in their midst; and damage for Ms. Massicotte’s three daughters for their Family
Law Act claims. The case settled as against all defendants on a confidential basis.

Di Cesare v. Turco, 2014 ONCJ CanLII 612 (P. J. Jones) – This was a pro bono case where Phil
represented Mr. Turco, who worked in construction, whose first language was Italian, and who
was also in a common law relationship and was having a custody dispute with his common law
partner, a teacher with a Masters in the child care field, for a four-year old daughter, who was
born before the man and woman began living together as common law spouses. They had since
separated. The case addressed all of the normal issues such as support, alienation, access, and
the appropriate distribution of income. Phil’s client, in what can only be described as difficult
circumstances, was nevertheless awarded fifty percent of time with the child through the
provision of access.

Khan et al v. Metroland et Al, 2013 ONSC CanLII 944 (Nordheimer J.) – a motion to dismiss a
claim for want of prosecution. In this case the Court was obliged to address how procedural
steps taken and not taken by the parties affected the judicial analysis required.

Ann MacLaren v. Dr. Motruk, 2012 (Ont. Supreme Court) (Tranmer J.) – In this case, Phil
successfully represented Ms. MacLaren in one of the first cases to apply the new test for Rule 20
enunciated by the Ontario Court of Appeal in the decision of Combined Air Mechanical. As the
new test confirms that Judges may exercise new powers for the purposes of determining matters
summarily, namely the weighing of and evaluating of evidence, evaluating the credibility of a
deponent, and the drawing of any reasonable inferences from the evidence; and as this case
turned largely on credibility issues, Mr. Justice Tranmer relied extensively upon the cross-
examination by Phil of the opposite party (i.e. a dentist) to reach his conclusions. In dismissing
the claims against Ms. MacLaren and allowing Ms. MacLaren's counterclaim, Mr. Justice Tranmer
found that the dentist's conduct was "reprehensible", and confirmed that through his cross-
examination, Phil was able to get the dentist to admit to acts of dishonesty, including "theft" and
"break and enter." Justice Tranmer also described the dentist's cross-examination evidence as
"evasive, argumentative, demonstrates a memory of convenience and is non-responsive in
regard to important matters"; held that his evidence "is internally inconsistent and at odds with
logic and common sense", that he "refused to give obvious answers when he thought it would
make him look bad”, that his "evidence on this (i.e. what he apparently told a police constable) is
incredible", and that his evidence was "completely illogical." Needless to say, Mr. Justice Tranmer
also held that when Dr. Motruk’s evidence was contrary to that of Ms. MacLaren, he accepted
Ms. MacLaren’s evidence "over his without hesitation." The decision is also important because it
demonstrates how the new powers under Rule 20 that have been extended to Judges from the
Ontario Court of Appeal can be applied to determine matters in a quicker and more cost-effective
manner.
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David Healey v Perry Murphy et al ( 2012 ) ( Ontario Supreme Court ) ( O’Driscoll J. ) - In this
case, Phil, acted for his brother and fellow lawyer, David, on a pro bono basis, whose client had
refused to pay David for his work as trial counsel in a civil conspiracy case which was
unsuccessful. The client (i.e. David's client ) took various positions (i.e. including the fact that the
paying client had not authorized the process ) to try to support their claim that they should not
have to pay anything. Phil obtained an Order requiring full payment to David plus costs.

lndcondo Building Corp. v. Sloan et al., 2011 ONSC 5151, 208 ACWS (3d) 73 (Mesbur J.) -
successfully obtained the dismissal of an ongoing commercial action raising bankruptcy and
insolvency issues. This proceeding claimed $20,000,000 against various defendants. Relying on
the doctrines of collateral attack, res judicata, issue estoppel and other legal principles, Ontario
Supreme Court Justice Ruth Mesbur found that the action constituted an abuse of process.

Elmer Waldhart et al vs. Kirsten Waldhart et al., 2010-2014 (Ont. Supreme Court) (Mullins J.) -
successfully represented Mrs. Kirsten Waldhart et al in proceedings raising estate, oppression
remedy, and other commercial law issues. This dispute was, primarily, between a daughter and a
step-father over the control of a plastics company, which was started by the mother, Greta
Waldhart; and the assets of Greta’s estate. It, however, became expensive litigation for
everyone, including Phil’s clients, because the three lawyers opposite Phil (i.e. one lawyer, who
was the main lawyer, acted for the step-father; another lawyer working with the main lawyer
acted for the estate; and another lawyer was acting for the main lawyer because of allegations
that Phil’s clients had made against that lawyer) kept filing amended factums a few days before
hearings leaving Phil’s clients, who were seeking urgent relief, having to acquire adjournments
with punitive conditions imposed but not getting to the merits. In any event, on one of those
occasions, Phil, the day before the hearing, cross-examined the two deponents who had filed
evidence on behalf of the step-father in such a way that it confirmed that the main lawyer, who
again was acting for the step-father, had the step-father swear affidavits about facts that he had
no knowledge of. Phil then used these cross-examinations at the hearing the next day, and, in
the result, not only succeeded on the motions scheduled for that day, but also compelled the
step-father to settle the entire proceeding on terms provided by the daughter. Accordingly, the
daughter and Phil’s client, Kirsten Waldhart, ultimately prevailed.

Magnum Integrated Technologies Inc. v. Intergrated Industrial Systems, 2010 ONSC 3389 (A.D.
Grace J.) – a successful application concerned with whether an action commenced in Ontario
should be stayed for want of jurisdiction. The Judge was obliged to apply the real and substantial
connection test and the forum convenience test.

McWatt v. SunOpta Inc., 2009 (Ont. S.C.) – a successful application concerned with the statutory
interpretation of section 5(3) of The Limitations Act. In particular, the application addressed the
meaning of the words "demand obligation" and "demand for performance" raised in
amendments to The Limitations Act, which amendments were enacted in 2008.

Abener S.A. v. SunOpta Inc., 2009 (Ont. S.C.) 61 B.L.R. (4th) 313, OJ No. 2487, 178 ACWS (3d)
302 (P.M. Perell J.) - an application addressing whether a recognition and enforcement of a
Spanish arbitral award on the facts of the case contravened the exemptions contained in Article
35 of The Model Law. The question raised was whether the doctrine of equitable set-off fit within
the relevant exemptions contained in The Model Law.
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David Healey v. The Robert Mcintosh Family Trust, Robert Allan Mcintosh, Aileen Jessie
Mcintosh, Strategic and Incremental Inc. et al., 2009 (Ont. S.C) OJ No. 3287 (A Hoy J.) – a
successful response to an application to set aside a judgment and a writ of seizure and sale
issued and registered pursuant to the judgment. Hoy, J. (as she then was), held that in cases
where the default did not occur because a statement of defense was filed late but rather
occurred because an Order struck the defense, the test in Chitel v. Rothbart did not apply, and
the motion itself was a collateral attack on the decision striking the defense. Hoy, J. further held
that the interests of justice would not favor setting aside the Judgment even if the test in Chitel
did apply. In the end, David Healey, who is also Phil’s brother, successfully responded to the
application and was paid all that he was owed, with costs.

Anil Badrudin Virji et al. v. Lerner & Associates LLP, 2007 (Ont. S.C) 160 ACWS (3d) 362 (Hockin
J.) – a successful application for an Order refusing the confirmation of a solicitor and client
assessment concerning an infant son's account with Lerner & Associates LLP. The application
required the Court to apply the decision of Killeen, J. which found that material non-disclosure
was apparent when the law firm confirmed the client assessment.

AssessMed Inc., Dr. Richman et al. v. Canadian Broadcasting Corp., 2004 (Ont. S.C.) OTC 208
(Rivard J). - a defamation action brought by AssessMed Inc. and various physicians (i.e.
neuropsychologists, neurologists, orthopedic surgeons, neurosurgeons and others) against the
CBC in relation to a Fifth Estate program where the plaintiffs alleged that the CBC defamed them
by portraying them as doctors in the pockets of insurance companies. The Court was obliged to
apply the defense of fair comment and, in particular, determine what constitutes malice when
such a defense is raised. The Court was also obliged to address the question of honest expression
of opinion. Finally, this case is also of note for plaintiff counsel in defamation cases because in it
Phil was able to, at the commencement of trial, convince the trial Judge that the defense of
justification, although pled, was no longer available. The trial Judge concluded that because it
was improperly pled and because of the non-compensable prejudice that Phil was able to
convince the trial Judge occurred to his clients in the result.

Hodgson v. Canadian Newspaper Co., 2004 (Ont. Superior Ct.) OJ No. 537 (Lane J.) – successfully
brought a motion to determine whether post judgment interest began to run from the
Judgement date or the date upon which the amount of the costs awarded was determined.

Vingar v. Vingar (2004) (Truesdale J.) (Ontario Court of Justice) - In this case, Phil acted, on a pro
bono basis, for his sister-in-law, Toni Vingar, who was in an abusive relationship with her
husband. Mrs. Vingar, at the time, had two young daughters; and Mr. Vingar was, among other
things, refusing to assist financially with the care of the girls as he had done for years. By way of
example, he refused to pay any support and, in fact, argued that the girls RESP, which had been
organized by Ms. Vingar, should be collapsed and the funds held therein distributed to himself
and Mrs. Vingar. Phil, however, became involved, and secured for Mrs. Vingar an Order requiring
that Mr. Vingar pay child support (i.e. Mrs. Vingar, who was also working, instructed that she did
not want and would not take spousal support) and an Order for sole custody. Thereafter, Mrs.
Vingar has ensured that her girls have all that they need and are properly educated (i.e. they are
both in University now).

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Hodgson v. Canadian Newspaper Co., 2003 (Ont. Superior Ct.) OJ No. 2760 (Lane J.) –
successfully obtained a cost award on behalf of a plaintiff on a full indemnity basis for a judgment
in libel against the Globe and Mail. The costs awarded included a premium of $80,000. Lane, J.
held that the costs should be awarded and the premium paid because, inter alia, of the “skill and
tenacity” demonstrated at trial by counsel (ie. by Phil). In this decision, Lane, J. was further
obliged to address whether the demand for an apology took an Offer to Settle outside of the
realm of Rule 49 of The Rules of Civil Procedure and apply legislative changes to the cost grid. It
also should be noted that there are very few cases, if any, which allow a party to collect more
costs than that party actually incurred in the prosecution of their case.

Virji et al v. Lerner Associates LLP, 2003 (Ont. S.C.) OTC 211 (Killeen J.) – successfully
represented an infant and his guardian parents on a motion to set aside an Order of Killeen, J.
approving the fees for services rendered to the minor. The motion was brought on the basis of
Rule 59.06 (i.e. the Order should be set aside on the ground of fraud and facts discovered after
the Order was made). In that decision, Killeen, J. agreed that there was material non-disclosure
to him when his Order was made by the lawyer acting opposite Phil in the hearing and set aside
his Order.

Lawrence Avenue Group Limited, et al. v. lnnocan Realty Inc., et al., 1999 (Ont. Superior Ct.)
44 OR (3d) 155 (Lax J.) – successfully obtained an Order vacating certificates of pending litigation
on an appeal from a Master's Order granting the certificates on an interim basis on various
properties which were the subject of Notices of Intention to Enforce Security under section
244(1) of The Bankruptcy and Insolvency Act and Notices of Power of Sale proceedings
commenced pursuant to same.

Ontario New Home Warranty Program v. Campbell, 1999 OJ No. 366, 91 OTC 269, 86 ACWS
(3d) 216 (Cumming J.) - an interlocutory injunction concerned with an alleged inherent and
continuing conflict of interest by a solicitor where the Ontario New Home Warranty Program
sought an Order prohibiting the solicitor (i.e. who had acted as outside counsel for the Ontario
New Home Warranty Program for 17 years) from representing parties in respect of matters
relating to the Ontario New Home Warranty Program.

Hodgson v. Canadian Newspapers Co., 1999 (Ont. Superior Ct.) OJ No. 2489 89 ACWS. (3d) 442
(Lane J.) - a successful motion concerned with the time for awarding costs pending an appeal and
whether costs should be determined by the trial Judge or an Assessment Officer.

Hodgson v. Canadian Newspapers Co., 1998 (Ont. Superior Ct.) 39 OR (3d) 235 (Lane J.) –
successfully obtained a judgment on behalf of the former Commissioner of Engineering for the
Region of York in a defamation action whereby damages were awarded against the Globe & Mail
in the amount of $880,000. The judgment, which was, at the time of its release, the largest
award in a defamation action in Canadian history, and is still the largest ever awarded against a
newspaper, was also important for its development of the law of defamation. It was the first to
deal substantively with recent amendments to The Libel & Slander Act concerning the necessity
of fairness and honesty of belief when raising the defense of fair comment as prescribed by
section 24, and the first to deal with the statutory privilege afforded to fair and accurate reports
of proceedings of public authorities as prescribed by section 3. In addition, as most of the
Page | 16
defenses known to the law of defamation were raised, the judgment also provides a very
thorough and complete review of the common law dealt with in most defamation cases. The trial
itself lasted approximately 80 days and has been quoted as the longest defamation trial in
Canadian history.

853402 Ontario Ltd. v. Romano, et al., 1996 (Ont. Ct. (Gen. Div.)) OJ No. 1137 (Lax J.) –
successfully obtained an Order striking a statement of claim against directors and officers of a
corporation on the basis that it did not disclose reasonable causes of action in conspiracy and
unlawful conduct against those individuals.

Brownstones East Limited Partnership et al v. Ontario New Home Warranty Program, 1992
(Ont. Ct. (Gen. Div.)) OJ No.227, 8 OR (3d) 545, 87 DLR (4th) 609, 23 RPL. (2d) 8931 ACWS (3d)
1098 (Sheard J.) – successfully represented the Ontario New Home Warranty Program in
litigation determining the applicability of its governing legislation to the sale of condominiums by
limited partnership interests. It was estimated, at that time, that approximately $20 million was
at risk should the Court conclude that the legislation did not apply. In his decision, Sheard J.
distinguished, through legislative provisions contained in the applicable Act, a recent decision
from the Ontario Court of Appeal, namely The Ontario New Home Warranty Program vs.
Marchant Building Corporation, which concluded that the Act did not apply. It should be noted
that Brownstones East Limited Partnership successfully appealed this decision; that Phil did not
act as counsel in that appeal; and that Phil, after the appellate Court in Brownstones released its
decision, published an article in The Lawyers Quarterly which took issue with the now two
decisions of the Ontario Court of Appeal. That article is referred to below and is entitled "Where
Have All the Warranties Gone? Ontario New Home Warranty Program v. Marchant Building Corp.
and Brownstones East ltd. Partnerships v. Ontario New Home Warranty Program (1992}, 14 Adv.
Q. 362."

Eagle Forest Products Inc., et al. v. Whitehorn Investments Ltd., et al., 1992 (Ont. Ct. (Gen.
Div.)) 0J No. 1762 (Ewaschuk J.) – successfully obtained a judgment in the amount of $800,000
for damages resulting from an adjacent development causing flooding to the plaintiff's lands. The
Court, in responding to a motion for summary judgement, and after having dismissed a similar
motion for a summary judgement, found, after Phil made the argument, that the developer and
the municipality were liable to Phil’s client for causes of action in nuisance, negligence, and the
doctrine of Rylands and Fletcher. The decision is also important for its development of the law
concerning the application of the Act of God defense to floods, application of the defense of
statutory authority, and as an indication of how far the Court is willing to go (i.e. when it is
appropriate to do so) to determine complex factual matters summarily under the old Rule 20
test.

Lakewood by the Park Ltd. v. Ontario New Home Warranty Program, 1991 (Ont. Ct. (Gen. Div.))
5 OR (3d) 527 (Greer J.) – successfully obtained a mandatory injunction for the provision of
security to cover potential warranty deficiencies pursuant to the Ontario New Home Warranty
Program's governing legislation. The decision is also important for the judicial comment in it
concerning the objects of the said legislation, namely The Ontario New Home Warranty Program
Act.
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Fire et al. v. Longtin et al., 1989 (Ont. Ct. (Gen. Div.)) 68 OR (2d) 479 (Watt J.)- successfully
resisted an application asserted against the Board of Health for the Leeds, Grenville and Lanark
District Health Unit as being statute barred pursuant to The Public Authorities Protection Act. The
decision is important for its complete and thorough review of the legislative scheme contained in
section 11 of the said Act; and also for its summary of the jurisprudence respecting such
provisions.

The Coats Company and Hennessy Industries Inc. v. Bruno Wessel Ltd. et al., 1990 (Ont.
Superior Ct.) 46 C.P.C. (2d) 316 (Farley J.) – successfully resisted an application to enforce letters
rogatory issued by a U.S. District Court in Texas where the letters rogatory suggested that the
respondents may have evidence which would be helpful to the U.S. trial. In this case, Phil
convinced the Judge that the inconvenience to his clients, who were the Canadian citizens,
should prevail over arguments presented for compelling Phil’s client to attend by what is really a
form of subpoena.

Drewlo Homes Inc. v. Ontario New Home Warranty Program, 1991 (Ont. Ct. (Gen. Div.))
4 OR (3d) 629 (Hollingworth J.) – successfully responded to an injunction brought by a builder
to preclude the distribution of the Ontario New Home Warranty Program's Home Buyer Guide.
The decision is important for recognition of the very seldom quoted legal principal that
injunctions should not ordinarily be granted where they will affect the rights of persons or bodies
not before the Court; and for what it said about the objects of the governing legislation.

Fire et al. v. Roberts et al., 1990 (Ont. Supreme Ct.) 71 OR (2d) 682 (Saunders J.) – successfully
represented the director of a Health Unit with respect to an application involving the statutory
interpretation of section 9 of The Negligence Act.

Sandbury Building Corporation et al. v. Town of Markham, 1991 (Ont. Ct. (Gen. Div.))
OJ No. 250 (Borins J.) – successful representation of developers to determine obligations with
respect to residential sub-division agreements. This proceeding required the Court to provide an
analysis of the jurisdiction prescribed pursuant to The Planning Act section 35 (6).

Quay West v. City of Toronto, 1990 (Ont. Ct. (Gen.Div.)) OJ No. 45 (Whealy D.C.J.) – successfully
resisted an application for a building permit on the basis that a planning by-law applying to the
lands in question was before the Ontario Municipal Board awaiting determination of its validity.
The Court held that the applicant for a building permit cannot freeze the state of the law by
making an appeal to the Ontario Municipal Board and applying thereto for a permit. Rather, the
effect of any planning or zoning by-law can be suspended only by an interim control by-law,
which in this case was enacted before any application for a permit was made.

Wine Ltd. v. Pafco Insurance Co., 1990 (Ont. Ct. (Gen. Div)) OJ No. 2931 (Hoilett D.C.J.) –
successfully represented an insurer concerning various discovery issues. In this case, Phil was
defending an insurance company against a claim made by a jewelers business against their
insurers based upon an alleged theft that the jewelers claimed had occurred.

Rudolph et al. v. Mitchell, 1989 (Ont. District Ct.) OJ No. 2892 (Gibson D.C.J.) – successfully

Page | 18
represented a plaintiff in a motor vehicle action limiting the scope of documentary discovery. In
this case, Phil acted on behalf of the insured against the insurance company obtaining for the
insured benefits the insured was entitled to following an accident.

Dashefsky et al. v. Dylex Limited, 1988 (Ont. Supreme Ct.) (Trainor J.)- successfully obtained a
judgment in the amount of $737,994 plus partial solicitor and client costs with respect to a claim
for breach of a joint venture agreement. Phil’s client, Mr. Dashefsky, was the chief executive
officer of Dylex Limited, which itself was in the business of selling women’s clothing through
various stores such as Suzy Shier; and Dylex Limited did all that they could to try and portray Mr.
Dashefsky as being an incompetent chief executive officer, including acting inappropriately with
models of the clothing. All of these allegations however were, through cross-examination,
proven to be false or not relevant and Phil’s client was awarded all that he was owed plus, as
aforestated, higher costs than usual.

British Columbia Supreme Court

Paul Healey v. Mr. Lube, 2011 (Dickson J.) - successfully represented Mr. Healey, the former chief
executive officer of Mr. Lube, and also Phil’s brother, in a dispute concerned with his entitlement
pursuant to an employment contract. In this decision, Dickson J. addressed a variety of discovery
issues including the propriety of written interrogatories, which Phil disagreed with, broader than
usual discovery, which Phil agreed with, production issues, which both parties agreed with, and
rights to cross-examination, which Phil strongly urged the Court to allow, all of which were
decided in Paul’s favor. In fact, it was Dickson J. rulings that there should be broader discovery
and complete cross-examination powers that lead to the settlement in this case. It did because
the chief executive officer that took Paul’s position was going to face Phil in a cross-examination,
and decided, instead, to settle. In the end, Paul, who was not being treated fairly by Mr. Lube,
was provided with all that he was owed, plus costs, plus a reference letter from Mr. Lube, all of
which Paul rightly deserved. In the time he was at Mr. Lube, Paul transformed that company
from a good sized family business to a successful country wide franchise business.

Alberta Court of Queen's Bench

Smallboy et. al. v. Roan et. al., 2001 AJ No. 1596 (McMahon J.) - an application to remove
counsel for a disqualifying conflict of interest on the basis of prior related retainers. The
interesting aspect of this case was that the prior related retainers required the Court to
compare customary practices of the pre-contact First Nation peoples with those of the present
day and ask itself whether and how they are similar; and if so, whether (i.e. these customary
pre/contact practices) should be protected by section 35 (1) of The Constitution Act 1982. The
case therefore gave rise to the well-known principle that pre-contact customary practices
protected by section 35 (1) should not be frozen in time but rather should be interpreted, if
probable, based upon whether they themselves could be a modern day expression of those
ancient customs.

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R. v Fight That Ticket Inc (Alberta Court of Queens Bench) ( 2010 ) - In this case, Phil acted for
an organization of former policeman and paralegals who sought but were being denied (i.e. by
some of the Judges of the Alberta Court of Queens Bench) the right to represent in Court as their
agent individuals who were charged with various traffic offences. The issue before the Court was
whether ex police officers and paralegals (i.e. not having, as lawyers do, licenses to practice law)
should nevertheless be granted standing in Court to make representations on behalf of such
individuals. The Court (i.e. even though it had been denying Phil's client that right) reversed itself
thereby permitting Phil's client (i.e. and all such organizations in Alberta) to act as agents in
Court for these offences.

Federal Court (Trial Division)

Sawridge Band v. Her Majesty The Queen, 2004-2008; Tsuu T'ina First Nation v. Her Majesty
The Queen, 2004-2008 - represented two First Nations in a proceeding alleging an aboriginal
and treaty right to self- government, an aboriginal and treaty right to determine citizenship,
and an aboriginal and treaty right to aboriginal title in their reserve lands, all pursuant to
section 35(1) of The Constitution Act, 1982. This was the first case to assert such broad
jurisdictional rights over First Nations reserve lands.

Poitras v. Sawridge, 2001 Federal Court (Trial Division) FCJ No. 1031, 206 FTR. 227, 106
ACWS (3d) 775 ( Hugessen J.) - applications to strike a claim and for summary judgement in a
proceeding concerned with amendments to The Indian Act granting band membership. The
application required consideration of what are known as the Bill C-31 amendments which
returned Indian status and band membership to individuals who claimed to have family ties
with different First Nations in circumstances where the First Nations had not consented to but
objected to such amendments; and there application to membership rules passed pursuant to
those amendments.
Poitras v. Sawridge, 2000 Federal Court (Trial Division) FCJ No. 1442, 100 ACWS (3d) 35; FCJ
No.714, 105 ACWS. (3d) 211; 2001 FCJ No. 529, 104 ACWS (3d) 985; 2002 FCJ No. 1399, 2002
FCA 369 - represented a First Nation with respect to various procedural motions concerned with,
among other things, productions, range of discovery, costs in the proceeding, all of which arose
as a result of a claim arising from an application for membership in a First Nation pursuant to
amendments made to The Indian Act in 1985 known as Bill C31.

Poitras v. Sawridge, 1999 Federal Court (Trial Division) FCJ No. 375, ACWS (3d) 282 (Hugessen
J.) - represented a First Nation concerned with an application by the Crown to stay those
aspects of the action concerned with section 35 (1) aboriginal rights and the constitutional
validity of amendments made to The Indian Act known as the Bill C-31 amendments.

L'Hirondelle v. Canada, 1998 FCJ No. 1367 (Hugessen J.) - represented a First Nation on a
motion to amend to challenge the constitutional validity of amendments to The Indian Act. The
amendments became necessary as a result of recent developments in the law contained in
judgements of the Supreme Court of Canada.

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Sawridge Indian Band, Ermineskin Indian Band, Sarcee Indian Band v. The Queen, Native
Council of Canada, Native Council of Canada (Alberta), and Non-Status Indian Association of
Alberta, 1996 (Federal Court Trial Division) FC 3 (Muldoon J.) - represented three First Nations in
an action for a declaration that sections of the Indian Act reinstating band membership to
individuals were inconsistent with section 35 of The Constitution Act, 1982 in that said sections
abrogated these First Nations aboriginal and treaty rights to determine membership. The trial
lasted approximately 90 days and involved the calling of extensive expert and oral history
evidence. This is also the case which has been referred to above in examples cited for
attendances before the Supreme Court of Canada and the Federal Court of Appeal where the trial
Judge was found to have conducted himself in a manner that demonstrated a reasonable
apprehension of bias.

Twinn et al. v. The Queen, Native Council of Canada et al., 1993 (Federal Court Trial Division)
109 DLR (4th) 364 (Muldoon J.) - represented three First Nations on a motion to take
depositions out of Court and to take a view of their respective reserves. This motion was
brought in the effort to ensure that the trial Judge had as good an understanding as possible of
the customs and practices of the First Nation. It is sometimes brought in cases in Canada and
around the world when indigenous rights are being considered but here, the Judge, who was
later found to have demonstrated apprehended bias against The First Nations chose to not take
the view.

Singapore High Court

China Central Television v. Dong Fang International Advertising Inc., 2000 (Singapore High
Court) (Chairman Warren Khoo) – successfully represented a Canadian company in an appeal
from the decision of Lord Mustill, a former member of the House of Lords, who was now acting
as an Arbitrator for the Singapore International Arbitration Centre, concerning a notice of
challenge to the continuation in office of the Arbitrator on the grounds of alleged bias and
impartiality. Phil was successful in preserving the position of Lord Mustill, who was one of the
very few candidates available at the Singapore International Arbitration Centre, to adjudicate a
case of this magnitude (ie. the damages which could be awarded could be as high as 25 billion).
Accordingly, for the client, preserving the position of Lord Mustill, at this early stage in the
proceeding, was critical.

International Tribunals
Viceroy Capital Corp. v. Tangling Nonferrous Metals Group Co. Ltd. (formerly known as Anhui
Tongdu Copper Stock Co. Ltd.), 2009 (Singapore International Arbitration Centre) (Mr. Dato·
Cecil Abraham, Presiding Arbitrator; Mr. Nicholas Stone, Co-Arbitrator; and Prof. Teresa
Cheng, SC Co-Arbitrator) – successful representation of a Canadian company which entered
into a joint venture agreement with a branch of the Chinese government concerning the
construction of a facility to build copper and copper sulfate. The total cost of the facility
exceeded $300 million. The issues in dispute between the parties resulted with claims in the
amount of $120 million. This case ended on the basis of a confidential settlement.

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China Central Television v. Dong Fang International Advertising Inc., 1999 (Singapore
International Arbitration Centre) (Lord Mustill) – successfully represented a Canadian
company seeking enforcement of a joint venture contract securing for that company the
advertising rights for the sporting channel of China Central Television, (which is a larger
broadcasting company than CBS, NBC and ABC put together) for a term of nine years. The claim
was raised against the branch of the Chinese government responsible for broadcasting rights;
damages sought were in excess of 20 billion dollars; and the issues raised in the proceeding
included civil fraud, fraudulent misrepresentation, and breach of contract. This proceeding is
still pending.
China Central Television v. Dong Fang International Advertising Inc., 1999 (Singapore
International Arbitration Centre) (Lord Mustill) – successfully represented a Canadian
company at the Singapore International Arbitration Centre on a motion challenging the
jurisdiction of a member of the House of Lords to act as an Arbitrator. The motion, which was
dismissed by the Arbitrator, was brought by the branch of the Chinese government responsible
for broadcasting.

Domestic Tribunals

John Munro et al. vs. Silvio Degasperis et al., 2015 (Mediator No. 1 – retired former Mr.
Justice George Adams: Mediator No. 2 retired former Justice Dennis Lane: Arbitrator retired
former Justice Colin Campbell) - successful representation of John Munro and, his wife, Sheri,
who made claims against Silvio Degasperis, and his two brothers, who were the majority
shareholders of Munro Ltd. This claim arose after John and Sheri had been removed from
Munro Ltd., which itself was a company that John had, over an approximate 20 year period,
built into a state of the art cement company which was worth approximately 300 million dollars.
The position of the majority shareholders, represented by Silvio Degasperis, was that John and
Sheri Munro engaged in stealing from the company through a complicated tax scheme. To
support that position, the majority shareholders filed affidavits in their own name and from
respected lawyers and accountants and also hired a team of lawyers to prosecute their position.
In the end, the majority shareholders agreed to settle the case on terms that were acceptable
to John and Sherri, but required that the settlement be confidential.

In a matter of a reference to review the decision of the Administrator under the HCV 1986-
1990 Transfusion Settlement Agreement Claim No. 100367 v. The Administrator of the
Hepatitis C Class Action Settlement, 1993 – This is one of many pro bono cases that Phil did. In
it, he represented the Estate of Lois Hamilton. Mrs. Hamilton was given a single unit blood
transfusion from a donor and subsequently diagnosed with acute hepatitis. The donor was
tested repeatedly and gave negative results. The hearing therefore involved the competing
opinions of many physician experts concerning whether the transfusion caused the hepatitis;
and also, by necessity, the cross examination of those experts by counsel. Montgomery J.,
sitting as the Arbitrator, concluded, based upon Phil’s argument and cross examination of the
various experts marshalled by the Blood Fund to support a denial of the Estate’s claim to some
of the proceeds in the class action settlement, that the transfusion caused the hepatitis. This
was the first case in which such a finding was made opposite a negative traced donor and there
probably still is no such other case. Moreover, in his decision, Montgomery J. complemented
Phil on his “excellent advocacy”.
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Ontario New Home Warranty Program v. 333568 Ontario Ltd., 1999 OCRATD No. 258
(Commercial Registration Appeal Tribunal) – successfully represented the Ontario New Home
Warranty Program in its response to a motion brought to dismiss the Registrar's motion to
remove counsel as a solicitor of record on the basis of conflict of interest.

333568 Ontario Ltd. v. The Registrar of the New Home Warranty Plan Act, 1999
OCRATD. No. 194 (Commercial Registration Appeal Tribunal) – successfully represented the
Registrar with respect of an Order sought to dismiss a motion on the basis of res judicata,
estoppel, and abuse of process.

Sullivan v. Holmes, 1995 (Ont. Municipal Board) OMBD No. 907 - successfully represented a
home owner with respect to an appeal from the Committee of Adjustments relating to the
approval of minor variance applications for side yard setback and angular plane zoning
requirements.

Town of Collingwood and 833471 Ontario Inc. c.o.b. Paltino Properties Limited et al. v. The
Oshawa Group Limited et al., 1994 (Ont. Municipal Board) – successfully represented a land
developer with respect to an Official Plan and Zoning amendments relating to the establishment
of an A&P grocery store in Collingwood, Ontario. Phil was urging the Ontario Municipal Board to
permit A&P to open a store so that now people in the area could buy their groceries at both a
Loblaws and an A&P. This, which is commonly known by counsel in the area as a store war case,
is one of many which were brought before the Ontario Municipal Board by either Loblaws or the
A&P or some other grocery store objecting about another coming in. In any event, there is now
an A&P in Collingwood.

Grant, et al. v. Holmes, 1995 (Ont. Municipal Board) OMBD No. 263 – successfully represented a
home owner on a motion to strike an appeal from the Committee of Adjustments on the basis of
repealed zoning.

Town of Newcastle v. Hawryszko, 1991 (Ont. Municipal Board) Carswell Ont. 3840 (Miller
Member) - successfully represented the Town of Newcastle in the matter of an appeal from a
decision of the Committee of Adjustment for a variance from the provisions of the governing
by-law.

Ruffolo v. Ontario New Home Warranty Program, 1992 (Commercial Registration Appeal
Tribunal) - successfully represented the Program in response to a section 16 appeal pursuant to
its governing legislation alleging seven major structural defects.

American Courts

Edwards et al vs. Simons et al, 2013-2014 (Jurisdiction of Wisconsin) (Many Judges) – In this
case, Phil’s client (Edwards et al) owned a patent on a computer application that was designed to
assist people (i.e. women mostly) with shopping in the malls of North America. The computer
application allowed women to find an item they were looking for, find out which store had the

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best price, and even get reviews from other women on whether they liked the item or not. The
patent was, however, designed for local shopping protecting the use of the computer application
for that purpose. Simons et al had a very similar computer application but their application was
designed for shopping both locally and at great distances. The crux of the prosecution by
Edwards et al against Simons et al for infringement of their patent therefore was whether there
was actually an infringement given the broader application of the computer application that also
applied through the computer application used by Simons et al (i.e. it also being designed for
shopping at great distances). This problem for Phil’s client was complicated by the fact that the
American lawyers that Phil inherited the case from failed to plead, in addition to there being a
literal infringement, that the infringement arose in any event because for all practical purposes
Simons et al conduct was an infringement of the Edwards et al patent.. That pleading was open
to Edwards et al. However, the new American lawyers that Edwards et al hired to, with Phil,
prosecute the claim (i.e. Phil was providing instructions and American counsel was implementing
those instructions) were reluctant to raise that plea late because of the extra costs that would be
incurred by for example new examinations and expert reports that would have to be filed. Phil,
after having read an interlocutory decision of a Judge in Wisconsin addressing this issue, strongly
urged that Edwards et al pay the costs and raise the plea; the new American lawyers urged the
opposite; Edwards et al accepted the advice of the American lawyers; and Edwards et al ended
up losing the case because they failed to raise that position. Put otherwise, Edwards et al chose
to follow the advice of their new American lawyers and proceed solely on the basis that there
was a literal infringement and that decision proved to be fatal to their case (i.e. which,
incidentally, claimed hundreds of millions of dollars).

McEwen vs The United States, 2015 (Jurisdiction of New York) - In this case, Ms. McEwen (i.e.
Phil’s client) was charged with vehicular homicide after she, having had two beers over the
course of approximately three hours, was driving her car to provide medical assistance to a
person who had had an epileptic attack, and her car was sideswiped by a three-wheeled ATV
driven by another man who was doing the same thing. The young man, actually, was passing the
car of Ms McEwen with his ATV when the two vehicles sideswiped; the ATV went into the ditch;
and the young man died. This case also became a politically charged case because in the district
where the accident happened, there had already been three vehicular homicide deaths within
two years of the incident and there was public pressure growing. In any event, Phil believed
strongly in his client’s innocence and believed that this was a case of a good Samaritan having
had an unfortunate accident. Phil guided his client through a lengthy process which eventually,
after a time, ended with all charges against Ms. McEwen being dropped.

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SELECTED PUBLICATIONS, CONTRIBUTIONS, & ARTICLES

Where Have All the Warranties Gone? Ontario New Home Warranty Program v. Marchant
Building Corp. and Brownstones East ltd. Partnerships v. Ontario New Home Warranty Program,
1992 - 14 Adv. Q. 362.

First Nation Self-Government. A Canadian Federation Based Upon A Three-Cornered

Relationship. It is Just a Matter of Time.
Consultant to From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of
Aboriginal and Treaty Rights. (Toronto, University of Toronto Press) (2015)

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