https://mcmillan.ca/wp-content/uploads/2020/05/profile-default-mobile.jpg

Benjamin (Ben) Bathgate is a leading corporate commercial litigator with extensive experience in sophisticated, high stakes litigation. Ben co-leads the firm’s national White Collar Defence, Fraud & Investigations Group (Chambers Canada recognized). He acts as Canadian counsel on behalf of foreign and domestic companies primarily in the manufacturing, distribution, franchising, banking & finance and agriculture industries. With significant expertise in specialized areas of commercial litigation, Ben regularly advises on matters relating to commercial fraud, government investigations (cross-border and national), transactional disputes, professional liability (D&O claims) and franchise disputes.

Ben is recognized by Legal 500 Canada as a “next generation partner” for dispute resolution and by the Canadian Legal Lexpert Directory as a “leading lawyer to watch” in corporate commercial litigation.

Ben co-authors the Canadian Chapter of Chambers Global’s International Fraud and Asset Tracing Guide, and its Anti-Corruption Guide. He is a co-author and co-editor of The Essential Guide to Settlement in Canada, a practice manual designed for in-house counsel, which is cited as an authoritative text by the courts. His writing on what is now Ontario’s Apology Act was considered by the Ontario Legislature and in legislative committees.

Ben is a co-lead of the firm’s Crisis Response Service, helping clients manage risk during internal investigations, including those related to cross-border and national regulatory investigations. He also co-leads the firm’s Commercial Litigation Presentation Series.

Ben has considerable experience representing clients at all levels of court in Canada, including the Court of Appeal for Ontario and the Supreme Court of Canada. He appears regularly as counsel in domestic and cross-border disputes, leading teams in complex arbitrations and before various boards and tribunals.



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;
  • Defending a seller from US $60 million in breach of representation and fraud claims arising from a US $560 million share sale of an aerospace manufacturing company;
  • Litigating claims totaling US $125 million for breach of contract, breach of privacy/confidentiality and conspiracy, arising from a lease termination in one of the largest cinema projects in the Middle East;
  • 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;
  • Prosecuted and succeeded at trial on a complex 12-year, multi-transfer fraudulent conveyance action seeking repayment on behalf of a European banking client and other creditors on debt totaling $15 million;
  • Defended a land development company and its officers from $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

  • Noranco v MidOcean Partners III, (2019) ONSC 1173 (Ont. S.C.J.) — Successfully obtained an indemnification order for the advance payment of a defendant officer’s legal expenses, within a broader fraud proceeding.
  • Fady Samaha v. Yamashita Rubber Co. et al, 2019 ONSC 3192  and Ewert v Denso Corporation, (2017) BCSC 973 (BCSC) — Defence counsel in settlement approval hearings for a national auto parts class action alleging price fixing.
  • Samuels v Attorney General (Canada), 2016 ONSC 7937 – Successfully stayed and defended a civil fraud proceeding against a large telecommunications company, pending the outcome of criminal proceedings against the plaintiff, and upheld ruling on appeal.
  • 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.

Speaking Engagements

Persuasive Advocacy in a Virtual Hearing, TerraLex Virtual Hearings Webinar Series

September 2020

Litigation Funding Overview, Webinar, TerraLex Virtual Global Meeting

October 2018

Unique Perspectives and Opportunities for "Big Data", Predictive Analytics Program, TerraLex Webinar

April 4, 2018

Effective Crisis Response: A multi-disciplinary perspective, Association of Corporate Counsel

October 5, 2017

Fraudulent Preferences and Conveyances: From Detection to Judicial Remedies, ACFI Annual Fraud Conference, Toronto

May 2, 2017

Should it Stay or Should it Go Part II: Litigation Hold, McMillan Corporate Counsel Webcast

October 2016

Litigation Holds and Document Preservation, McMillan Corporate Counsel Presentation

May 2016

Best Practices in Document Management: Part I, McMillan Corporate Counsel Webcast

April 2016

Commercial Lease Remedies 101, McMillan Corporate Counsel Presentation

September 2015

Associate Career Development Planning, McMillan in-house presentation

May 2014

An Overview of Franchise Law in Ontario: A Litigator Perspective, Ontario Bar Association, Ontario/New York Legal Summit

March 2014

Recent Developments in Franchising and Distribution Law, McMillan in-house presentation

January 2013
Read more

News


Media Mentions


Rankings & Recognitions

  • Listed in the Legal500 Canada 2021 as a Next Generation Partner – Dispute Resolution
  • Listed in the Legal500 Canada 2020 as a “Next Generation Partner” – Dispute Resolution
  • Recognized in the 2019 Canadian Legal Lexpert Directory as a Leading Lawyer to Watch in the area of Litigation – Corporate Commercial

Directorships & Affiliations

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

Education & Admissions

2005
Called to the Ontario bar
2004
JDDalhousie University
2003
International and Comparative Business Law ProgramBucerius Law School (Hamburg, Germany)
2001
BA (Honours with High Distinction)University of Toronto

Publications

Insights by Benjamin M. Bathgate (2 Posts)

Featured Insight

What’s in a Name? When Profit Sharing “Insurance” is not Insurance under the Insurance Act

What's in a Name? When Profit Sharing "Insurance" is not Insurance under the Insurance Act

Read More
Jun 16, 2017
Featured Insight

The Perils of Ignoring Faulty Offers to Settle: Expanded Discretion under Rule 49

The Perils of Ignoring Faulty Offers to Settle: Expanded Discretion under Rule 49

Read More
Mar 12, 2015