Publications

Loss vs. Damages	Download
The term “loss” has a number of meanings. However, the term “damages” has a very precise meaning in the context of litigation...

Moral Damages - Not Taxable	Download
An employee sued his former employer for: a) wrongful dismissal, and b) oppression under the Canada Business Corporation Act...

Foiled by the Font	Download
Mr. Gerald McGoey made an assignment into bankruptcy. He and his wife took the position that two of their properties were excluded from the bankrupt estate by virtue of being...

Investment Losses - Damages	Download
Where a Plaintiff has received negligent professional advice, they often fail to understand the damages that flow from it. The Plaintiff says that, if the advice given had been true, they would have made $ millions. Therefore, the Plaintiff asserts that their damages are $millions. However...

Construction Trust Fund Claims - Get the Accounting Right	Download
Accounting is now key when asserting and defending claims in respect of breaches of trust fund accounting, with the recent changes to the Construction Act. Claims now focus squarely on the accounting for funds disbursed and received.

Damages in Professional Negligence – Let Me Explain!?	Download
Where a Plaintiff has received negligent professional advice, they often fail to understand the damages that flow from it. The Plaintiff says that, if the advice given had been true, they would have made $millions. Therefore, the Plaintiff asserts that their damages are $millions. However...

Does Reliance on a Negligently – Prepared Cost Estimate Give Rise to Damages? – Sometimes Yes, Sometimes No	Download
Here are two fact patterns, in both cases the parties relied upon a negligently prepared cost estimate. In the first fact pattern the aggrieved party cannot prove their damages, and in the second fact pattern they can. For your case, I can help you understand your damages.

How to Sue Your Auditors – Deloitte Settles for C$121.9 million shortly before the SCC decision on Livent	Download
Superior Court Approves a C$121.9 million Settlement of CIBC v. Deloitte over the Audit of Philip Services Corp.

How to Sue Your Auditors – The Supreme Court Weighs In At $40 Million	Download
The Supreme Court has confirmed that auditors can be held liable. That’s big news – and potentially big dollars for your clients.

Get Your Damage Right: a $2.4 Billion Lesson	Download
Be careful how you claim your damages. This $2.4 billion claim was dismissed before it even got to trial, on the basis of a motion attacking the plaintiff’s damage quantification.

How to Call Bullshit with a Graph	Download
A Construction Company suffered an accident on a construction site, caused by another trade. The Construction Company was not able to work on the site for 6 weeks following the accident, and sued the company responsible for the accident for loss of profits.

Plaintiff awarded both their Damages and a Disgorgement of Profits by the Defendants – Alberta Court of Appeal	Download
Indutech Canada Limited was awarded both their damages, and a disgorgement of the Defendants’ (Gibb Pipe Distributors Ltd.) profits. The judge found that GPD had breached the agency agreements, and the fiduciary and good faith duties owed by GPD to Indutech. The decision by the Court of Queen’s Bench of Alberta was upheld by the Court of Appeal.

Reframing of damages leads to $84.75 million award	Download
Justice Gans awarded $84.75 million to Livent Inc against Deloitte & Touche LLP because the damages claim was re-framed as a suit brought by the company, rather than by the investors in the company.

Sometimes a Rigorous Accounting Can Help Resolve the Dispute	Download
An elderly gentleman received assistance from his neighbours, i.e., with grocery shopping, snow shoveling and visits to the doctor. He transferred funds to his neighbours over the course of a number of years. After his death, his executor questioned the funds transferred.

Plaintiff’s Choice of Damages Expert Derails Arbitration	Download
In the course of an arbitration, with Mr. Goldman as the arbitrator, the plaintiffs chose Mr. Stulberg as their damages expert. In a separate court case, Mr. Goldman, as counsel, had retained Mr. Stulberg as his damages expert. Both cases involved the application of the Wishart Act.

"Sanity Check" on Damages can Highlight Important Issues	Download
Taking the damages claim and subjecting it to a "sanity check" can highlight important issues. Both Plaintiffs and Defendants can benefit from the process.

Mitigation is Important: SCC	Download
A plaintiff’s claim for damages was reduced to $1 (one dollar), from $1.9 million because they failed to mitigate.

Court of Appeal for Ontario - My Testimony on Damages Helped Win this Case on Appeal	Download
My testimony as an expert on damages before The Superior Court of Justice helped the defendants to win this case. The Appeal by the plaintiff (appellant) was dismissed by the Court of Appeal in a decision dated October 16, 2012.

The Taxpayer’s Damages are not necessarily the amount of the Reassessment.	Download
A recent full page article in the Globe focused on CRA’s crackdown on tax shelters. If you are representing a taxpayer, or defending one of their advisors, in a dispute over tax shelters, it is important to keep in mind that the taxpayer’s damages are not necessarily the amount of the reassessment. The quantum of the taxpayer’s damages requires a separate calculation.

Quantifying All Possible Outcomes Drives Settlement	Download
I identified that the numerical fact pattern in this case allowed quantification of all of the possible outcomes. This helped counsel drive this case to a favourable settlement.

Failure to Understand Their Damages Can Cost Plaintiffs Money	Download
If the Plaintiff overestimates their damages they may pursue litigation where the financial payback is not there. Alternatively, if they underestimate their damages they may leave money on the table.

Mobius Corp. v Farm Boy Inc.	Download
My testimony as an expert on damages before the Superior Court of Justice helped the defendants to win this case.

Arthur Wishart Act Sparks Litigation	Download
The Wishart Act has sparked considerable litigation, both: a) between franchisors and franchisees, and b) between franchisors/franchisees and their advisors.

Timothy's Coffees v. an Ottawa Franchisee Two Interesting Findings re: Damages	Download
On the damages side, there are two interesting findings in this case: First: the damages awarded were calculated based on the income lost by Mr. Salah, even though technically he is not a party to the franchise agreement. Second: the damages awarded were not reduced by income that Mr. Salah will potentially earn in the future.

Price Check Foods v. Gowlings – a Strong Message on Damages	Download
This recent decision brings forward some strong messages about plaintiffs' claims for damages, as well as liability. One of the key messages is the confirmation of the responsibility of the plaintiff to establish damages, and the quantum of damages, through sufficient evidence.

Krispy Kreme Donuts Plaintiff Collects Damages Twice Court Sends a Message to Co-Investors and Directors	Download
If the case is appealed, one of the issues that may be raised is the double recovery by Mr. Fiorillo; where he recovered from Mr. Alofs based on fraud, and from the directors based on oppression. Presumably, the Defendants will argue that this judgement goes beyond making Mr. Fiorillo whole.

International Arbitration makes sense because you can collect	Download
International Arbitration can be better than court litigation because an International Arbitration Award is enforceable in most countries in the world

The plaintiff, Mr. Martin, won on liability, but failed to prove his damages	Download
This series of actions originated 19 years ago with Mr. Martin alleging Mr. Goldfarb caused him to lose over $10 million. The courts have found Mr. Goldfarb, and his firm Farano, Green LLP, breached their fiduciary duty to Mr. Martin. However, Mr. Martin’s actions have failed.

Bitter Bidders: How the Numbers Stack Up	Download
Increasingly, bidders are litigating when they feel they have been unfairly treated in the bidding process for major contracts. The damages claimed in their litigation follow the nature of the breach or wrong. But the method of calculating the damages can have a significant effect on the amount of the damages, both sought and awarded.

New Damages Regime	Download
Alternative ways to seek redress for problems with securities traded in the secondary market.

How to Spot Double Counting	Download
A serious problem in claims for damages is double counting. That is, if all the damages as presented are added up, the total may include some items twice.

Income Taxes in Damage Quantifications	Download
For many business losses, damages are calculated on a “before tax basis”. However, there is some debate as to whether income taxes should be factored into the calculation of damages.

Rogue Brokers and the Damages They Cause	Download
Plaintiffs who allege that their stockbroker has caused them financial loss must prove their damages.

PJI can be Compound Interest - SCC	Download
The recent decision by the Supreme Court of Canada decided in favour of compound pre-judgment interest, rather than simple pre-judgment interest.