The important court decisions and settlements obtained by Shapray Cramer Fitterman Lamer's lawyers span all areas of corporate, securities and commercial law and can be found by an online search of the Canadian legal databases. A few of the more significant cases of note include:
Sateri v. Fortress Paper and Peter Vinall
We successfully defended the defendant Peter Vinall in an action commenced by the plaintiffs (a multi-national group of companies that are leading manufacturers worldwide of wood-based specialty cellulose products) for, among other things, breach of fiduciary duty (alleged theft of corporate opportunity), breach of confidence, breach of employment contract and conspiracy. These allegations were all in connection with the acquisition by the defendant companies of a paper mill in Quebec to be converted to manufacture cellulose products, and their consultation and subsequent employment of Mr. Vinall in connection therewith. The plaintiffs claimed damages in excess of $45 million. The trial occupied some four weeks at the conclusion of which the judge described counsels’ conduct as being at the “upper reaches of advocacy”.
BC Freedom of Information and Privacy Association v. Attorney General of British Columbia
Counsel for intervener British Columbia Civil Liberties Association in freedom of speech Charter challenge to provisions of the BC Election Act requiring individuals to publicly register with Electoral Office in order to lawfully participate in any “election advertising” whatsoever (i.e., statute containing no minimum threshold expenditure to engage registration requirements).
Lamb v. Canada (Attorney General)
Counsel for plaintiff in ss. 7 and 15 Charter challenge to Bill C-14, the legislation enacted to, following the Supreme Court of Canada decision in Carter v. Canada (Attorney General), 2015 SCC 4, strike down the Criminal Code provisions prohibiting physician-assisted dying. The challenged provisions require qualifying individuals to be in "an advanced stage of irreversible decline” and for their death to be “reasonably foreseeable” which qualifications are asserted to be inconsistent with the Charter rights to “life, liberty and security of the person” and equality and also inconsistent with the decision in Carter.
Strata Plan LMS 1851 v. Homer Street Development Limited Partnership
We represented the developer of a hotel condominium project who was found to have made misstatements in footnotes to a disclosure statement prepared in support of the marketing of the said condominium hotel units. The trial consumed 24 days and involved the quantification of the Plaintiffs’ claims. The trial was followed by a successful appeal to the Court of the Appeal dismissing the Plaintiffs claims.
BC Securities Commission Investigation
We recently successfully extracted an institutional securities trader from an insider trading investigation underway by the BC Securities Commission.
Wastech Services Ltd. v. Greater Vancouver Sewerage & Drainage District
Secured a $3 million arbitral award against the Greater Vancouver Sewerage & Drainage District (Metro Vancouver) for breach of a good faith duty arising in the context of a long-term contract for the management of Metro Vancouver’s integrated solid waste management system and facilities. The arbitrator concluded that Metro Vancouver exercised a discretion accorded it by the contract in a manner that deprived Wastech of the opportunity to achieve what the parties had agreed was a reasonable target operating profit. By depriving Wastech of the opportunity to earn that profit, Metro Vancouver was found to have deprived Wastech of the fundamental benefit for which it had bargained. The award is currently under appeal.
Carter v. Canada (Attorney General)
Counsel for plaintiffs/respondent British Columbia Civil Liberties Association on motion to extend the one year suspension of the declaration of invalidity regarding the Criminal Code provisions prohibiting physician-assisted dying. Majority granting extension but granting constitutional exemption for individuals to make applications for court authorization to obtain assistance during period of extension.
The Province of British Columbia
Howard Shapray successfully represented the Province of British Columbia in an appeal in a constitutional case in which the issue was the protection of cabinet privilege from disclosure during a trial in which the Province was a defendant.
British Columbia v. British Columbia Teachers Federation 2015 BCC 185
First Majestic Silver
Howard Shapray and Brad Cramer establish a precedent for the issuance of Letter Rogatory by the Court to the Courts of Mexico in aid of enforcement of a $93 million judgment obtained by the firm against a Mexican national and his company.
First Majestic Silver Corp. v. Davila Santos 2015 BCCA 452
v. Greater Vancouver Sewerage and Drainage District
Stephen Fitterman obtains a $2.9 million arbitration award against the Greater Vancouver Sewerage and Drainage District for breach of a duty of good faith on behalf of a client involved in a long term contract with the District.
Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District
v. Government of Canada, Department of Defence
Howard Shapray, Brad Cramer and Stephen Fitterman successfully strike out defences raised by the Government of Canada, Department of National Defence in a multi million dollar claim alleging nuisance and trespass over unexploded munitions left by Canada after World War II Military Training exercise. This Action was favourably settled in 2015 on th eve of trial.
K & L Land Partnership v. Canada (Attorney General) 2014 BCSC 1701
British Columbia Medical Assn.
Howard Shapray and Brad Cramer successfully defeat an appeal and uphold a trial judgment dismissing a libel case against its client, the 11,000 member British Columbia Medical Association.
Wang v. British Columbia Medical Assn. 2014 BCCA 162
First Majestic Silver
Our client, First Majestic Silver Corporation, one of the world's leading silver producers, recently obtained an damage award of more than $90 million after a 54-day trial. The case involved the successful prosecution of claims for breaches of fiduciary duties against a former officer and director of a public mining company doing business in Mexico, complex issues relating to the misappropriation of a corporate opportunity, mining company valuation techniques and the interface between Mexican and Canadian law.
BC Medical Association
After a 26-day trial, Shapray Cramer Fitterman Lamer obtained a judgment in favour of our clients British Columbia Medical Association and a number of its officers and directors who had been wrongly accused in a defamation suit brought by a former director of the Association.
v. Government of Canada, Dept of Defence
Shapray Cramer Fitterman Lamer, on behalf of its developer client, launched a unique action against the Government of Canada, Department of Defence, over government liability for damages arising from the hidden presence of Unexploded Explosive Ordinance left in the ground after World War II munitions training exercises. The case is pending.
Together with our client, we negotiated a favourable settlement of a massive "wrongful expropriation" case against the British Columbia transit public utility, Translink, after compelling extensive document production and conducting a blistering series of cross examinations of Translink personnel. The settlement resulted in the return of a large parcel of valuable industrial lands that had been taken by Translink for the ostensible purpose of constructing the Golden Ears Bridge project.
We represented one of Canada's leading community developers in an arbitration over alleged interference with its development business operations during the five-year run-up to the 2010 Vancouver Olympic and Paralympic Winter Games. The arbitration proceedings settled favourably for our client after a lengthy series of hearings.
Vancouver Canucks Ownership
Howard Shapray was part of a legal team that defeated a courtroom challenge to the ownership of the Vancouver Canucks NHL franchise by Vancouver's prominent Aquilini family.
Charter of Rights
Shapray Cramer Fitterman Lamer won a landmark constitutional challenge in the British Columbia Court of Appeal based upon the Canadian Charter of Rights and Freedoms against the British Columbia Securities Commission and the Attorney General of British Columbia, which resulted in the striking down of legislation designed to gag witnesses called to provide evidence for a Securities Commission investigation.
Ivanhoe Mines Ltd.
We represented client Ivanhoe Mines Ltd. in the Ontario Court of Appeal in its challenge to the validity of a Plan of Compromise and Arrangement intended to restructure the $32 billion Canadian market in Asset-backed Commercial Paper.
In the 1990s an Alberta group of real estate companies and their principals were sued for more than $500 million in damages in a representative action on behalf of what was allegedly a class of a million claimants. SCFL's lawyers were successful in the Alberta and British Columbia courts in striking out the representative action and having the client removed as a defendant from a United States-based class action brought by one of the United States' leading class-action law firms.
When the United States government seized approximately CDN$200 million of shares belonging to one of Canada’s most prominent and successful mining financiers, Robert Friedland, he called on Shapray Cramer Fitterman Lamer to attack the court orders which the United States had obtained from the Ontario courts. The firm’s lawyers not only succeeded in having the seizure set aside, they were successful in obtaining an order for an indemnity for their client’s legal fees (special costs) against the United States government based upon the material non-disclosure. Mr. Friedland also retained the firm to coordinate and oversee US litigation between the client and the United States Environmental Protection Agency over its CERCLA claims.
It was only about a month after Shapray Cramer opened its doors in 1993 that a visionary geologist and mining company executive became a client of the firm. He and his partner had discovered the presence of kimberlite pipes, which host diamonds, in the Northwest Territories. The client’s former employer, Pioneer Metals, was suing him, the company claiming rights to the diamond claims, alleging that the opportunity to explore for diamonds belonged to Pioneer rather than to the client. After extensive discovery, the case was dismissed by consent with the client retaining all his ownership rights to what ultimately became Canada's first diamond producer, the Ekati mine, operated by BHP Billiton, the world's largest diversified resources company. Between 1998 and 2009, the Ekati mine produced 40 million carats of diamonds and the client became an officer of the Order of Canada and world-renowned philanthropist. Pioneer Metals became a client of Shapray Cramer in 2005 when it made a claim to exercise its option on Novagold Canada's "Grace" claims. After Pioneer was purchased by Barrick Gold Corporation and discoveries of Novagold took place, that lawsuit settled.
In one of the earliest environmental law decisions in British Columbia, Howard Shapray successfully sued four levels of government and a number of private concerns over their pollution of the Brunette River in New Westminister. His client's property was repeatedly flooded by the overflowing of the river during the winter rainy season. The cause of the flooding was determined to be a complex amalgam of factors including operation of an upstream dam by the Greater Vancouver Regional District and the infilling and obstruction of the river at various points along its course by railway trestles, deliberate infilling and a sawmill operation. The case settled after some 26 days of expert testimony. The unusual settlement comprised both a large monetary award and implementation of a unique non‑monetary term that involved construction of a multi-million dollar diversion of the Brunette River by the Greater Vancouver Regional District.
Howard Shapray was counsel for the British Columbia Automobile Association in the first reported case in the Commonwealth involving alleged actuarial malpractice. The case was precedent setting in that it established not only a duty of care but a fiduciary duty existing between the actuarial department of a major insurance company and its client with respect to providing for the design of a pension scheme and various amendments thereto. It dealt with issues of director’s liability in relation to the establishment and funding of a large pension plan. The case also involved the difficult problem of assessing damages that related to the cost in perpetuity of maintaining an amended benefits package for a group of employees of an indeterminate size.
Securities Market Fraud
In one of the largest market manipulation/securities fraud cases of its kind in Canada, a Texas-based mutual fund retained Howard Shapray to sue some of Canada’s leading brokerage firms and others after it was discovered that its fund manager had accepted bribes from two Canadian stock promoters to buy their "pump and dump" promotions and had suffered trading losses of $27 million. The case involved precedent-setting issues concerning the liability of directors of public companies. On the eve of trial, one of Canada’s leading brokerage companies settled the claim against it for a sum in excess of $13 million. The trial that went ahead against other defendants resulted in a multi-million dollar award for the entire amount of the plaintiff’s claims. The case involved, among other things, the management manipulation of presentation of more than a million pieces of data relating to the market manipulation of numerous stocks. The conduct of the case was, due to its complexity, described by the presiding judge, as a “forensic achievement” unparalleled in modern history. After Mr. Shapray finished his presentation, counsel for one of the defendants, when asked for his submissions, advised the trial judge that he had nothing he could say other than to ask for "a cigarette and a blindfold."