Cross-Border Litigation in Canada: What US Lawyers Need to Know
Even though Canada and the U.S. are close neighbors, disputes can spread across the borders. However, it would be misguiding to assume that procedural rules and rights of the U.S. legal system would apply in Canada. There are many significant differences that could have affect litigation strategies. Cases such as Treat Canada Ltd. v. Leonidas and Catalyst Fund General Partner I Inc. v. Hollinger Inc. show that Canadian courts avoid addressing the risk of self-incrimination in cross-border disputes in favor of protecting the right. But, such an approach relies on the United States enforcing such safeguards.
It is unclear how U.S. courts will treat conditions imposed by Canadian courts and how they will apply the Fifth Amendment to incriminating evidence obtained in Canada. Whether foreign nationals are protected by the Fifth Amendment in U.S. proceedings when interrogated abroad has not been answered by the U.S. Supreme Court. There are a variety of U.S. cases in which bounty hunters have kidnapped and returned to the U.S. people with arrest warrants located outside the U.S. Despite concerns about principles of comity, sovereignty, and violation of extradition treaties, such conduct has not been found to shock the conscience of the U.S. court.
Understanding some of the important features of the Canadian legal system is critical to ensuring success in litigation of cross-border disputes in a Canadian court.
This CLE course offered by The Knowledge Group will provide an overview of the latest trends, critical issues, and best practices relating to Cross-Border Litigation in Canada. Speakers will share valuable insights into Canadian laws and identify what issues U.S. lawyers should adhere to and consider before starting a cross-border litigation proceedings. The speakers also will explain the legal differences, challenges, and risks, and provide best practices in ensuring compliance with their respective cross-border laws. The ramifications of differences in the U.S. and Canada in securities class actions will also be addressed.
Some of the major topics that will be covered in this course are:
- Cross-Border Disputes Litigation in Canada
- Recent Cross-Border Dispute Claims in Canada
- Treat Canada Ltd. v. Leonidas
- Catalyst Fund General Partner I Inc. v. Hollinger Inc.
- Similarities and Differences: Canada and U.S.
- Possible Consequences and Litigation Costs
- Implications for Economic Analysis in Securities Class Actions at different stages
- Procedural hurdles, including requirements for leave
- Class certification, liability and damages analyses
- Cross-Border Risk Policies and Procedures
- Personal Jurisdiction Approach
- Implied Undertaking Principle
- Mandatory Mediation
- Risk Management and Compliance Requirements
- Best Practices in Litigation
Kinji Bourchier, Partner
Lawson Lundell LLP
- Essential considerations for multi-jurisdictional litigation (e.g. choice of jurisdiction, forum non-conveniens, security for costs, anti-suit injunctions)
- Enforcement of Foreign Judgments (overview of the key 6 SCC judgments, including the latest (2015) Chevron case).
- Application of statute of limitation in connection with the enforcement of foreign judgments.
Dr. Vinita Juneja, Senior Vice President and Co-Chair, Global White Collar, Investigations & Enforcement Practice
NERA Economic Consulting
What are the Implications for Economic Analysis if a Securities Class Action is Cross-Border and involves Canada?
- What matters at different stages?
- What are the differences in procedural hurdles, including requirements for leave, and how does that affect the relevant economic analysis?
- How do economic considerations differ for class certification, causation, liability and damages analyses?
- How do predicted outcomes and settlements differ?
Lisa C. Munro, Partner
Risk of the loss of the privilege of self-incrimination
- The privilege against self-incrimination is constitutionally enshrined in the U.S. and Canada; an individual has the right not to be compelled to incriminate himself/herself.
- The privilege is effectively protected only so long as the individual is not facing overlapping investigation or prosecution (criminal/regulatory) and civil litigation in both countries.
- The privilege can be eviscerated because of the differences in which it is protected in the two countries.
- The Canadian approach: Sections 7 and 13 of the Canadian Charter of Rights and Freedoms (Schedule B to the Constitution Act, 1982), which compel testimony but provide use and derivative use immunity subject only to a prosecution for perjury.
- The U.S. Approach: Fifth Amendment to the Constitution of the United States, which provides the right to silence but an adverse inference may be drawn from the refusal to testify.
- The risk? Evidence given in Canada under protection may be used against the individual in the U.S. – U.S. expert evidence introduced in Canada leaves an uncertainty.
- Who is most at risk? Directors and Officers of public corporations who do business in the U.S. and Canada (eg. Hollinger, Nortel, Livent cases).
Elena Mamay, Senior Attorney
- Essential information on jurisdictional issues
- Enforcement of foreign judgements in Canada.
- Status of limitations on enforcements on foreign judgements
Who Should Attend:
- In-House Lawyers
- Risk and Compliance Officers
- Arbitrators and Mediators
- Attorneys: General
- International Arbitration Lawyers
- Other Interested/Related Professionals
Lisa C. Munro is a partner at Lerners LLP. She was called to the bar in 1994 and, since 2007, has been a member of the firm’s Executive Committee. She practices commercial and class action litigation in Toronto, with an emphasis on complex business, banking, and shareholder disputes, directors’ and officers’ liability, and cross-border litigation, including enforcement of foreign judgments and letters rogatory. Lisa is also co-Chair of the Executive Committee of the Toronto Commercial Arbitration Society and a director of the Greater Toronto Scout Foundation. Lisa was selected by Diversity Journal as a recipient of its 2015 Women Worth Watching Award and is listed in 2015 Best Lawyers Canada in the area of corporate commercial litigation.
Lisa C. Munro is a partner at Lerners LLP. She was called to the bar in 1994 and, since 2007, …
Kinji Bourchier is a partner with Lawson Lundell LLP in Vancouver, Canada, where he practises civil and commercial litigation with a focus on contractual disputes, environmental remediation claims, shareholder and transactional disputes, and business torts. He has appeared as lead counsel at all levels of court in British Columbia. He was recognized by Lexpert magazine as one of Canada's leading lawyers under 40, and as lawyer to watch for cross-border litigation. He has also received rankings and recognitions from Benchmark Canada and Best Lawyers in Canada in the areas of commercial & energy litigation and environmental law, respectively.
Kinji Bourchier is a partner with Lawson Lundell LLP in Vancouver, Canada, where he practises civil and commercial litigation with …
Vinita M. Juneja is a Senior Vice President at NERA Economic Consulting. She is Co-Chair of NERA’s Global White Collar Practice. She received her B.A. from the University of Western Ontario and her M.A. and Ph.D. from Harvard University, all in economics.
Dr. Juneja directs projects concerning securities economics, finance and valuation. She has been retained on hundreds of such matters involving securities fraud, valuation of restricted or illiquid stock, insider trading, manipulation, suitability, derivative actions, stock repurchases, ERISA claims, market timing, fund advisor fee structures, and valuation of businesses and financial assets in merger related disputes and lost profits claims. Her work has included retentions on many cross-border securities class actions, including a large number of Canadian matters.
She has testified and submitted affidavit and expert report testimony in US, Canadian and Israeli courts, and in arbitrations in the US, Canada, Singapore and the UK. She has been an arbitrator for the NASD and FINRA.
Vinita M. Juneja is a Senior Vice President at NERA Economic Consulting. She is Co-Chair of NERA’s Global White Collar …
Elena Mamay is a senior associate practicing in the Cross-Border Litigation Group (ILSG) at Cambridge LLP. Her practice focuses on complex national and international litigation; public and private international law. An experienced litigation lawyer, Elena has appeared before the Ontario Superior Court of Justice, the Ontario Divisional Court and the Ontario Court of Appeal.
Prior to her practice at Cambridge LLP, Elena worked as a legal adviser at the international War Crimes Tribunal. She participated in a number of high profile cases and advised international judges in cases related to the prosecution of war crimes, crimes against humanity, terrorism, and torture.
Elena Mamay is a senior associate practicing in the Cross-Border Litigation Group (ILSG) at Cambridge LLP. Her practice focuses on …
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About Lerners LLP
Lerners LLP is one of Ontario's largest firms, with offices in London and Toronto. The Toronto office specializes in litigation of all kinds and is now one of the city’s largest litigation boutiques. In fact, the Toronto office was recently recognized by Canadian Lawyer magazine as one of Canada’s top 10 litigation boutiques. It has expertise in complex business litigation including shareholder disputes, banking litigation, class actions, directors’ and officers’ liability, and cross-border proceedings (such as enforcement of foreign judgments, letters rogatory, cross-border collection of evidence, and advice to individuals and corporations conducting business in the United States and Canada.) In 2015, Lerners has been ranked as one of Ontario's Top 10 Regional Firms by peers, colleagues, and clients in an annual survey conducted by Canadian Lawyer magazine. The London office offers a full range of services to clients in southwestern Ontario. In total, over 100 highly skilled and experienced lawyers, with the help of more than 200 dedicated support staff, share expertise and resources to deliver exceptional client service.
About Lawson Lundell LLP
Ranked as the top regional firm in Canada by Chambers and Partners, Lawson Lundell LLP is a recognized leader in commercial law with specialities in regulatory and commercial litigation with recognized experience in Aboriginal, environmental, labour and employment, and insolvency. The firm is equally strong in mining, energy, mergers & acquisitions, corporate finance, banking, pension & employee benefits, real estate and tax. With over 120 lawyers located in offices in Vancouver, Calgary and Yellowknife, Lawson Lundell is a leading Canadian business law firm known for its practical, strategic approach to legal and business problems. Lawson Lundell is ranked as one of the top three corporate firms in Vancouver by the Canadian Legal Lexpert Directory. The firm’s lawyers are repeatedly recognized in The Lexpert®/American Lawyer Guide to the Leading 500 Lawyers in Canada as among the best in their fields, and have achieved significant recognition in Best Lawyers in Canada and Chambers Global. Lawson Lundell was named Firm of the Year in Energy/Resource Litigation at the Benchmark Canada Awards 2015. The firm’s commercial litigation group is exclusively focused on business clients and is distinguished by its strength across a large number of critical niche areas including commercial, securities and corporate litigation, including shareholder disputes, and class action defence. The group has a wide geographic reach, as evidenced by the volume of its international arbitrations and litigation files.
About NERA Economic Consulting
NERA Economic Consulting (www.nera.com) is a global firm of experts dedicated to applying economic, finance, and quantitative principles to complex business and legal challenges. For over half a century, NERA's economists have been creating strategies, studies, reports, expert testimony, and policy recommendations for government authorities and the world's leading law firms and corporations. We bring academic rigor, objectivity, and real world industry experience to bear on issues arising from competition, regulation, public policy, strategy, finance, and litigation.
NERA's clients value our ability to apply and communicate state-of-the-art approaches clearly and convincingly, our commitment to deliver unbiased findings, and our reputation for quality and independence. Our clients rely on the integrity and skills of our unparalleled team of economists and other experts backed by the resources and reliability of one of the world's largest economic consultancies. With its main office in New York City, NERA serves clients from more than 25 offices across North America, Europe, and Asia Pacific.
About Cambridge LLP
Cambridge LLP is a truly unique law firm. We combine years of experience with a dedication to the highest ideals of client service. But what makes us more effective than other law firms is our combination of focused expertise with a dynamic results-oriented approach. We understand the myriad of diverse legal challenges facing entrepreneurs, businesses and governments in today’s increasingly complicated global legal environment. Our commitment and mission is to find ingenious solutions and relentlessly pursue our clients’ interests.
At Cambridge, we have the resources to tackle the most complex engagements while remaining agile and flexible enough to assist our clients with virtually any legal challenge. While many law firms are concerned with maximizing hourly rates and billable hours, we are dedicated to finding creative and efficient solutions to our clients’ legal issues. We employ a “team approach” to legal engagements, ensuring that all legal services are provided at the appropriate level of experience and expertise.
Above all we respect and protect our clients’ interests assiduously. Confidentiality and client privacy are always priorities at Cambridge LLP.
With offices in Toronto, North York and Burlington, we are well positioned to assist clients from across Canada and around the world. We have developed a special focus and expertise in serving the legal interests and requirements of individuals, businesses and governments on an international level. Many of our clients are referred to us by lawyers at some of the worlds’ most prestigious and accomplished law firms. Our Cross-Border Litigation Group has achieved a reputation for excellence in service and is recognized by legal counsel and their clients throughout the world as a key resource when legal issues cross borders.