Our Appeal and Review Group

Our Appeal and Review Group concentrates on disputes that are likely to proceed beyond one level of decision to the next level by way of appeal or review. Specialized skills are necessary to overturn adverse decisions or to protect favourable ones. Our Appeal and Review Group advocates have emphasized those skills throughout their careers and have represented clients in virtually every area of substantive law and at every level of court, including numerous appearances in the Supreme Court of Canada.

Our experience includes decisions made by trial judges and juries, administrative decision-makers, and arbitrators, and covers such diverse subjects as aboriginal, arbitration, bankruptcy, constitutional, insurance, intellectual property, personal injury, products liability, professional negligence, and real property matters to name a few.

Our Appeal and Review Group features more than 42 lawyers in five offices across Canada with extensive experience in appeals and review applications. Our team offers strength and depth, including not only leading practitioners but also retired appellate judges and former judicial law clerks. This experience affords insight into appellate practice and effective legal research and writing. We offer a fresh look at existing disputes from an appellate perspective, using incisive analysis to identify what is essential and set aside the rest.

The Appeal and Review Group has lawyers at every level of seniority, allowing us to handle appeal and review applications as cost-efficiently as possible.

Our Services

Appeal and review issues can arise at every stage of dispute resolution. We advise on trial issues such as charges to juries, preserving error on the record, and dealing with post-judgment applications. In appellate matters, we frequently offer critical advice on whether to appeal, including realistic assessments of expense and likelihood of success. We assist clients in suspending execution upon judgment pending appeal, and have prepared the written and oral arguments in hundreds of appeals in every appellate court in Canada, including the Supreme Court of Canada.

In addition to advice to the existing clients of Borden Ladner Gervais LLP, we are often consulted by outside counsel. When trial counsel refer matters to our Appeal and Review Group, trial counsel are kept as informed and involved as is appropriate to achieve the best possible result.

We have also been appointed as counsel in high-complexity appellate matters by institutional clients, who often confront disputes with far-reaching implications. In this capacity we have assisted insurers, industry associations, and governments, among others, whether as litigants or as interveners.

Our Experience

The breadth of experience in our Appeal and Review Group is demonstrated by the following representative sample of the types of matters in which we have assisted clients:

• L.L.A. v. A.B., [1995] 4 S.C.R. 536: represented a number of institutions before the Supreme Court of Canada in a case that clarified the extent of their obligations to disclose medical and therapeutic records related to complainants in a sexual assault criminal proceeding. Athey v. Leonati, [1996] 3 S.C.R. 458: represented the respondent in the Supreme Court of Canada on what has become a leading Canadian case on the law of causation.
• Beattie v. Canada, 2001 FCA 309:  responded to an appeal from the dismissal of a claim for compensation arising out of the federal Crown's alienation between 1948 and 1956 of mineral rights on a surrendered Indian reserve.
• Blair v. Consolidated Enfield Corp., [1995] 4 S.C.R. 5: represented a corporation before the Supreme Court of Canada in a case regarding the proper procedure for electing the board of directors at an annual shareholders' meeting, and determining who should be responsible for legal costs incurred in defending the corporate acts of the corporation's president and director.
• Colborne Capital Corp. v. 542775 Alberta Ltd. (1999), 69 Alta. L.R. (3d) 265 (C.A.): represented several oil and gas companies, obtaining an award of $1,815,000 in damages for interference with economic relations and contractual rights, abuse of process, and breach of fiduciary duty.
• Committee for the Equal Treatment of Asbestos Minority Shareholders v. Ontario (Securities Commission), 2001 SCC 37:  represented a committee of minority shareholders in a challenge to the decision of the Ontario Securities Commission, declining to exercise its public interest jurisdiction in connection with Quebec's acquisition of a large resource corporation.
• Kitkatla Band v. British Columbia (Ministry of Small Business, Tourism and Culture) (pending): representing forest company in Supreme Court of Canada judicial review challenge to validity of provincial heritage conservation legislation.
• M. v. H., [1999] 2 S.C.R. 3: acted before the Supreme Court of Canada in one of the first cases testing the constitutionality of a statutory definition of "spouse".
• Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342: represented the respondent in the Supreme Court of Canada in what has become a leading Canadian municipal law case.
• Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801: represented the insurance company before the Supreme Court of Canada in one of the leading Canadian "duty to defend" cases.
• Reference Re: An Act to Amend the Education Act (1986), 53 O.R. (2d) 513 (C.A.): acted for an alliance of Ontario schools in litigation over the constitutionality of legislation that provided full funding for Roman Catholic separate high schools.
• Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611: appeared before the Supreme Court of Canada in a leading case involving surplus monies in an amalgamated company's contributory defined benefits plan.
• Starr v. Houlden, [1990] 1 S.C.R. 1366: appeared before the Supreme Court of Canada in a case raising constitutional issues regarding a public inquiry into the conduct of the president of a registered charity.
• United Mexican States v. Metalclad Corp. (2001), 89 B.C.L.R. (3d) 359 (S.C.):  represented Mexico in the first application to set aside a NAFTA chapter 11 investor state arbitration award.