Benjamin M. Bathgate 

Co-Chair, Fraud Law
Toronto  t: 416.307.4207  |  e: ben.bathgate@mcmillan.ca

Benjamin M. Bathgate

Toronto
Brookfield Place, Suite 4400
181 Bay Street
Toronto, Ontario M5J 2T3

t: 416.307.4207
e: ben.bathgate@mcmillan.ca

overview

Ben is a partner in the firm's Litigation and Dispute Resolution Group and Co-Chair of the Fraud Law Group. His practice is focused on complex corporate and commercial litigation in the retail, manufacturing and the banking and financial services industries. Ben has expertise in several specialized areas of litigation, including commercial fraud, professional liability (D&O claims)commercial real estate and franchise disputes.

Ben is a co-editor and co-author of "The Essential Guide to Settlement in Canada" (published in 2013 by LexisNexis Butterworths Canada), a valuable practice manual designed for in-house counsel focused exclusively on the topic of settlement in Canada, which has been cited as an authoritative text by the Courts. Ben has presented extensively on this topic and regularly advises clients on settlement strategy, early case assessment and risk management. He is a co-lead of the firm’s Crisis Response Service and the Commercial Litigation Presentation Series.

Ben has built a diverse client base including both foreign and domestic companies. His clients include retailers, consumer products manufacturers and distributors, franchisors, consulates, embassies, insurance companies, telecommunications companies and banking and financial services institutions.

Ben has successfully represented clients at all levels of court in Canada, including the Court of Appeal for Ontario and the Supreme Court of Canada. Ben has also appeared as counsel in arbitrations and before various Boards and Tribunals.

Ben has been interviewed on changes in securities regulations and his writing on what is now Ontario's Apology Act has been considered in the Ontario Legislature and in legislative committees.

Representative Matters

  • Represented several former officers of Sino-Forest Corporation before the Ontario Securities Commission in one of Canada's largest ever securities fraud proceedings, spanning 180 hearing days and relating to $3 billion in Canadian-raised capital; 
  • Prosecuted and proceeded to trial on a complex 12-year, multi-transfer fraudulent conveyance action on behalf of a European banking client;
  • Represented a large merchant bank in prosecuting a $30 million set of claims for fraud and conspiracy arising from a failed international wood processing joint venture;
  • Represented a banking client in responding to domestic and foreign law enforcement demands for customer information and the freezing of accounts;
  • Consulted with a financial institution in investigating an international email fraud scheme; 
  • Defended a land development company and its officers against $15 million in claims of fraud and oppression;
  • Represented an international telecommunications company in defending a misleading advertising claim, which involved questions on the sufficiency of disclaimer language used on scrolling Internet pages;
  • Represented an international insurer against a $20 million claim in a failed merger transaction;
  • Represented a commercial restaurant tenant in obtaining a precedent-setting trial decision enforcing an oral lease and an oral option to purchase land against a landlord; 
  • Represented numerous national banking and retail clients in claims against landlords seeking to enforce restrictive covenants (including injunctive relief), recover operating cost payments and obtain rent abatements; 
  • Represented numerous landlords and commercial tenants in real estate and leasing disputes (including trials), involving remedies of specific performance, injunctive relief, damages, distress, bailment and relief from forfeiture;
  • Defended numerous consumer electronics and household products manufacturers, wholesalers, retailers and distributors from breach of contract, occupier liability and product liability claims;
  • Defended numerous franchisors and distributors from various claims, including claims: seeking rescission remedies for late or allegedly deficient disclosure; alleging failure to disclose material facts; alleging misrepresentations in the disclosure document or in the statement of material change; and for alleging breach of the obligation of fair dealing;
  • Defended an internet advertising company and a large international insurer against oppression remedy and employment law claims brought by former managers and executives;

Representative Superior Court and Appellate Court Decisions

  • Bell Canada v. Cogeco Cable Canada, (2016) ONSC 6044 (Ont. S.C.J.) – defended interlocutory and permanent injunctions on allegedly misleading advertising statements for a telecommunications client, and dealt with questions on the sufficiency of disclaimer language within Internet advertisements.
  • Bayerische Landesbank Girozentrale v. Rosen Ridge Farms Ltd., et. al., (2015) ONSC 27 (Ont. S.C.J.) – successfully obtained a trial decision in a complex fraudulent conveyance action, overturning a sham trust agreement and unwinding a series of real property transfers.
  • Rehman International Ltd. v. Royal Bank of Canada, (2013) CarswellOnt 9203 (Ont. S.C.J.) – successfully opposed an action seeking to realize upon fraudulent instruments, and succeeded in prosecuting the bank's counterclaim at trial and in piercing the corporate veil.
  • Thorne v. AXA Canada Inc. et. al., (2012) ONSC 2409 (Ont. S.C.J.) - successfully opposed a Divisional Court appeal seeking the right to examine the President and CEO of a large defendant insurer.
  • Lechuga 1 Ltd. v. Lettuce Eatery Development Inc., (2011) CarswellOnt 8213 (Ont. S.C.J.) – opposed an application brought by three franchisees under the Arthur Wishart Act (Franchise Disclosure) claiming rights of rescission for allegedly deficient disclosure and successfully obtained an order converting the application into an action.
  • Sigrist v. McLean, (2011) CarswellOnt 14424 (Ont. S.C.J.) – successfully obtained a trial decision enforcing an oral lease and an oral option to purchase a commercial property, overturning an illegal distress and obtaining an award of damages, including punitive damages.
  • Batkov v. Starwood Industries Global Corp., (2010) CarswellOnt 10090 (Ont. S.C.J. Div. Crt.) – successfully opposed a Divisional Court appeal and upheld an order granting an administrative dismissal of a $15 million action brought against a banking client, upholding a multi-million dollar share purchase transaction.
  • Sincies Chiementin S.p.A. (Trustee of) v. King (2010) CarswellOnt 8996 (Ont. S.C.J.) – defended an action and a summary judgment motion seeking to enforce a foreign judgment in Ontario on grounds of jurisdiction, natural justice and public policy.
  • R.S.W.H. Vegetable Farmers Inc. and 1427868 Ontario Ltd. v. Bayerische Landesbank Girozentrale and Ontario Peninsula Farms Ltd., 2010 CanLII 69207 (S.C.C.) – successfully opposed an application for leave to appeal to the Supreme Court of Canada with respect to a proceeding under the Farm Debt Mediation Act, which sought to render null and void the enforcement of a registered bank charge.
  • Strassle Informationssysteme Holding GmbH (Trustee of) v. Sieber, (2010) ONCA 604 (CanLII) (Ont. C.A.) – successfully defended a challenge to an Ontario Judgment enforcing a foreign banking client's award in Europe, and successfully opposed the subsequent appeal in the Court of Appeal for Ontario. 
  • Bayerische Landesbank Gironzentrale v. Sieber, 2008 CanLII 28753 (ON S.C.) – successfully set aside an earlier dismissal of a complex fraudulent conveyance claim.

Presentations

Fraudulent Preferences and Conveyances: From Detection to Judicial Remedies
Commercial Lease Remedies in Canada
Managing your work and your time as a litigator
Commercial Lease Remedies 101
Associate Career Development Planning
Should it Stay or Should it Go? Document Management and Litigation Holds
An Overview of Franchise Law in Ontario:
A Litigator Perspective
Franchise Law 101
Lease and Purchase Agreement Remedies
Making Settlements Stick: A Guide to Settlement
Common Pitfalls in Settling Disputes: The Top-Ten List
Negotiation Skills Seminar
Costs / Orders / Judgments / Enforcements
Recent Developments in Franchising and Distribution Law
Recent Developments in Franchising and Distribution Law

Publications

What's in a Name? When Profit Sharing "Insurance" is not Insurance under the Insurance Act
The Perils of Ignoring Faulty Offers to Settle: Expanded Discretion under Rule 49
The Essential Guide to Settlement in Canada
The Essential Guide to Settlement in Canada

News

Benjamin Bathgate comments on OSC ruling in Finkelstein vs. Azeff case in Canadian Lawyer
McMillan lawyers publish The Essential Guide to Settlement in Canada

Education

  • Dalhousie University, LLB - 2004
  • Bucerius Law School (Hamburg, Germany) - 2003
  • University of Toronto, BA (Hons. with High Distinction) - 2001

Year Of Call

  • Called to the Ontario bar - 2005

Practices

fraud law
litigation
business litigation
franchise and distribution
franchising and distribution disputes
leasing
appellate advocacy
arbitration
product liability
defamation and libel

Industries

banking, finance and insurance
manufacturing, distribution and retail
franchising and distribution
retail
commercial real estate

Directorships and Professional Associations

  • Ontario Bar Association, The Franchise Law Section
  • Canadian Franchise Association
  • International Franchise Association
  • The American Chamber of Commerce in Canada
  • Advocates' Society

Media Mentions

linked in vcard

Ben is a partner in the firm's Litigation and Dispute Resolution Group and Co-Chair of the Fraud Law Group. His practice is focused on complex corporate and commercial litigation in the retail, manufacturing and the banking and financial services industries. Ben has expertise in several specialized areas of litigation, including commercial fraud, professional liability (D&O claims)commercial real estate and franchise disputes.

Ben is a co-editor and co-author of "The Essential Guide to Settlement in Canada" (published in 2013 by LexisNexis Butterworths Canada), a valuable practice manual designed for in-house counsel focused exclusively on the topic of settlement in Canada, which has been cited as an authoritative text by the Courts. Ben has presented extensively on this topic and regularly advises clients on settlement strategy, early case assessment and risk management. He is a co-lead of the firm’s Crisis Response Service and the Commercial Litigation Presentation Series.

Ben has built a diverse client base including both foreign and domestic companies. His clients include retailers, consumer products manufacturers and distributors, franchisors, consulates, embassies, insurance companies, telecommunications companies and banking and financial services institutions.

Ben has successfully represented clients at all levels of court in Canada, including the Court of Appeal for Ontario and the Supreme Court of Canada. Ben has also appeared as counsel in arbitrations and before various Boards and Tribunals.

Ben has been interviewed on changes in securities regulations and his writing on what is now Ontario's Apology Act has been considered in the Ontario Legislature and in legislative committees.

  • Represented several former officers of Sino-Forest Corporation before the Ontario Securities Commission in one of Canada's largest ever securities fraud proceedings, spanning 180 hearing days and relating to $3 billion in Canadian-raised capital; 
  • Prosecuted and proceeded to trial on a complex 12-year, multi-transfer fraudulent conveyance action on behalf of a European banking client;
  • Represented a large merchant bank in prosecuting a $30 million set of claims for fraud and conspiracy arising from a failed international wood processing joint venture;
  • Represented a banking client in responding to domestic and foreign law enforcement demands for customer information and the freezing of accounts;
  • Consulted with a financial institution in investigating an international email fraud scheme; 
  • Defended a land development company and its officers against $15 million in claims of fraud and oppression;
  • Represented an international telecommunications company in defending a misleading advertising claim, which involved questions on the sufficiency of disclaimer language used on scrolling Internet pages;
  • Represented an international insurer against a $20 million claim in a failed merger transaction;
  • Represented a commercial restaurant tenant in obtaining a precedent-setting trial decision enforcing an oral lease and an oral option to purchase land against a landlord; 
  • Represented numerous national banking and retail clients in claims against landlords seeking to enforce restrictive covenants (including injunctive relief), recover operating cost payments and obtain rent abatements; 
  • Represented numerous landlords and commercial tenants in real estate and leasing disputes (including trials), involving remedies of specific performance, injunctive relief, damages, distress, bailment and relief from forfeiture;
  • Defended numerous consumer electronics and household products manufacturers, wholesalers, retailers and distributors from breach of contract, occupier liability and product liability claims;
  • Defended numerous franchisors and distributors from various claims, including claims: seeking rescission remedies for late or allegedly deficient disclosure; alleging failure to disclose material facts; alleging misrepresentations in the disclosure document or in the statement of material change; and for alleging breach of the obligation of fair dealing;
  • Defended an internet advertising company and a large international insurer against oppression remedy and employment law claims brought by former managers and executives;

Representative Superior Court and Appellate Court Decisions

  • Bell Canada v. Cogeco Cable Canada, (2016) ONSC 6044 (Ont. S.C.J.) – defended interlocutory and permanent injunctions on allegedly misleading advertising statements for a telecommunications client, and dealt with questions on the sufficiency of disclaimer language within Internet advertisements.
  • Bayerische Landesbank Girozentrale v. Rosen Ridge Farms Ltd., et. al., (2015) ONSC 27 (Ont. S.C.J.) – successfully obtained a trial decision in a complex fraudulent conveyance action, overturning a sham trust agreement and unwinding a series of real property transfers.
  • Rehman International Ltd. v. Royal Bank of Canada, (2013) CarswellOnt 9203 (Ont. S.C.J.) – successfully opposed an action seeking to realize upon fraudulent instruments, and succeeded in prosecuting the bank's counterclaim at trial and in piercing the corporate veil.
  • Thorne v. AXA Canada Inc. et. al., (2012) ONSC 2409 (Ont. S.C.J.) - successfully opposed a Divisional Court appeal seeking the right to examine the President and CEO of a large defendant insurer.
  • Lechuga 1 Ltd. v. Lettuce Eatery Development Inc., (2011) CarswellOnt 8213 (Ont. S.C.J.) – opposed an application brought by three franchisees under the Arthur Wishart Act (Franchise Disclosure) claiming rights of rescission for allegedly deficient disclosure and successfully obtained an order converting the application into an action.
  • Sigrist v. McLean, (2011) CarswellOnt 14424 (Ont. S.C.J.) – successfully obtained a trial decision enforcing an oral lease and an oral option to purchase a commercial property, overturning an illegal distress and obtaining an award of damages, including punitive damages.
  • Batkov v. Starwood Industries Global Corp., (2010) CarswellOnt 10090 (Ont. S.C.J. Div. Crt.) – successfully opposed a Divisional Court appeal and upheld an order granting an administrative dismissal of a $15 million action brought against a banking client, upholding a multi-million dollar share purchase transaction.
  • Sincies Chiementin S.p.A. (Trustee of) v. King (2010) CarswellOnt 8996 (Ont. S.C.J.) – defended an action and a summary judgment motion seeking to enforce a foreign judgment in Ontario on grounds of jurisdiction, natural justice and public policy.
  • R.S.W.H. Vegetable Farmers Inc. and 1427868 Ontario Ltd. v. Bayerische Landesbank Girozentrale and Ontario Peninsula Farms Ltd., 2010 CanLII 69207 (S.C.C.) – successfully opposed an application for leave to appeal to the Supreme Court of Canada with respect to a proceeding under the Farm Debt Mediation Act, which sought to render null and void the enforcement of a registered bank charge.
  • Strassle Informationssysteme Holding GmbH (Trustee of) v. Sieber, (2010) ONCA 604 (CanLII) (Ont. C.A.) – successfully defended a challenge to an Ontario Judgment enforcing a foreign banking client's award in Europe, and successfully opposed the subsequent appeal in the Court of Appeal for Ontario. 
  • Bayerische Landesbank Gironzentrale v. Sieber, 2008 CanLII 28753 (ON S.C.) – successfully set aside an earlier dismissal of a complex fraudulent conveyance claim.
December 2013
The Essential Guide to Settlement in Canada
LexisNexis Canada
Winter 2013
The Essential Guide to Settlement in Canada
Co-editor and Co-author, Published by LexisNexis Butterworths Canada
May 2, 2017
Fraudulent Preferences and Conveyances: From Detection to Judicial Remedies
ACFI Annual Fraud Conference, Toronto, Ontario
January 25, 2016
Commercial Lease Remedies in Canada
Client presentation
November 2015
Managing your work and your time as a litigator
McMillan junior associate training
September 2015
Commercial Lease Remedies 101
McMillan Corporate Counsel Presentation
May 2014
Associate Career Development Planning
McMillan in-house presentation
March 2014
Should it Stay or Should it Go? Document Management and Litigation Holds
Client presentation
March 2014
An Overview of Franchise Law in Ontario:
A Litigator Perspective
Ontario Bar Association - Ontario/New York Legal Summit
February 2014
Franchise Law 101
Client presentation
October 2013
Lease and Purchase Agreement Remedies
Real estate associate educational session
Fall 2013
Making Settlements Stick: A Guide to Settlement
McMillan Corporate Counsel CPD Series and various in-house client presentations
Fall 2013
Common Pitfalls in Settling Disputes: The Top-Ten List
Various in-house client presentations
Summer 2013
Negotiation Skills Seminar
Various in-house client presentations
April 2013
Costs / Orders / Judgments / Enforcements
McMillan junior associate advocacy training
January 2013
Recent Developments in Franchising and Distribution Law
McMillan in-house presentation
Fall 2012
Recent Developments in Franchising and Distribution Law
McMillan Corporate Counsel CPD Series