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J. Kenneth McEwan, Q.C.

Profile

Ken McEwan practices as general counsel, with a particular focus on complex corporate-commercial litigation, class action litigation, commercial arbitration and administrative law at the trial and appellate levels, including the Supreme Court of Canada. He received the designation of Queen’s Counsel from the Attorney General of British Columbia in 2004.

Mr. McEwan was named British Columbia litigator of the year for each of 2013 - 2016 by Benchmark Canada. He has also been a finalist for both Canadian class action litigator of the year and Canadian competition litigator of the year during that period. In 2017 Benchmark recognized him as one of the Top 50 Trial Lawyers in Canada. He was also named one of the leading 100 Cross-border Litigators in Canada in the 2017 Lexpert Magazine in the categories of commercial litigation, class actions, and securities litigation. He was named in the 2017 Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada. He is listed in the Legal Post Best Lawyers in Canada in the areas of securities law, corporate commercial and class action litigation, and has received the highest ranking available in dispute resolution by Chambers Canada for 2017. Martindale-Hubbell has given Mr. McEwan a ranking of AV - Preeminent.

Mr. McEwan acts as both arbitrator and mediator of commercial disputes. He is a co-author of Commercial Arbitration in Canada: A Guide to Domestic and International Arbitrations published by Canada Law Book, which has been cited as authority in judgments across Canada. He is a member of the Chartered Institute of Arbitrators and the Western Canada Commercial Arbitration Society.

Mr. McEwan is the Secretary/Treasurer of the International Society of Barristers, a Fellow of the American College of Trial Lawyers, and a Director of the Advocates’ Society. He has been appointed by the Law Society as the civil litigation representative to the Committee on Relations with the Judiciary. He was appointed by the Attorney General of British Columbia to the Supreme Court Rules Revision Committee where he served for many years until the committee disbanded in April 2016.

Mr. McEwan is author of the third edition of Sopinka on the Trial of an Action. He is an adjunct professor of law at the University of British Columbia Law School, teaching its trial advocacy course. He is a regular contributor to both the Continuing Legal Education Society of British Columbia and the Advocates’ Society on topics related to litigation and arbitration. He chairs a panel of the British Columbia Inns of Court project which was established to foster professionalism amongst young lawyers. Mr. McEwan is a past president of the Sopinka Cup Society which hosts the national finals of the Canadian law school trial moot competition in Ottawa.

Notable Cases

Notable Cases

Ken McEwan, Q.C. and Trevor Bant successfully represented the Law Society of British Columbia in professional disciplinary proceedings concerning a lawyer’s receipt and disbursement of $26 million from offshore jurisdictions in 4 transactions. The decision confirmed important principles of lawyers’ self-regulation including when asked to facilitate a transaction that appears to be suspicious, a lawyer has a duty to make inquiries sufficient to establish, on an objective basis, that the transaction is legitimate, or should decline the engagement.

Este v. Esteghamat-Ardakani, 2017 BCSC 878 (with Claire Hunter): obtained dismissal of trial after five weeks on a no evidence/abuse of process motion.

Sateri (Shanghai) Management Limited v. Vinall, 2017 BCSC 491 (with William Smart, Q.C. and Ken McEwan, Q.C.): Defended Fortress Paper Ltd. and Fortress Specialty Cellulose Inc. against a multimillion dollar claim for alleged knowing assistance in breach of trust, breach of confidence, and inducing breach of contract pertaining to the Fortress defendants’ acquisition and conversion of a pulp mill in Thurso, Quebec. The plaintiffs pursued an accounting and disgorgement remedy, along with punitive damages. Their claims against the Fortress defendants were dismissed in their entirety.

Basha Sales Co. Ltd. v. Adera Equities Inc., 2017 BCSC 94: Counsel to Adera entities and management on successful application to remove certificate of pending litigation on properties adjacent to the Plaintiff’s residential building in which the Plaintiff claimed a failure by the Defendants to provide sufficient parking stalls.

Basha Sales Co. Ltd. v. Adera Equities Inc., 2017 BCSC 137: Counsel to Adera entities and management on successful summary trial application to have claim in respect of alleged failure to provide sufficient parking stalls pursuant to an Agreement of Purchase and Sale dismissed.

Soprema Inc. v. Wolrige Mahon LLP, 2016 BCCA 471 (with Trevor Bant): counsel in an appeal concerning the test for implied waiver in court pleadings of solicitor-client privilege. The reasons for judgment, now the leading case in this province.

Stewart v. Stewart et. al., 2016 BCSC 2256 (with Brian Duong): successfully defended an application brought against a national law firm claiming a disqualifying conflict of interest.

Arkansas Teachers Retirement System v. Lions Gate Entertainment Corp., 2016 BCSC 432, (co-counsel with Emily Kirkpatrick) successfully represented Lions Gate in defeating an application to bring a derivative action in Lions Gate’s name against current and former directors and officers, arising out of circumstances surrounding the attempted takeover of Lions Gate by Carl Icahn in 2010.

Ken McEwan, Q.C. and Rebecca Robb represented the Law Society of British Columbia in the Court of Appeal, successfully defending an appeal from a Discipline Panel’s finding of professional misconduct.

Zellstoff Celgar Limited Partnership v. British Columbia Hydro and Power Authority, 2015 BCCA 497: concerning British Columbia Utilities Commission’s jurisdiction and reasonableness in approving third party restrictions imposed through power purchase agreement between BC Hydro and FortisBC.

Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58: Counsel to Cargill Incorporated as part of the Competition Trilogy, in which the claims of the plaintiffs were decertified;

Lee v. Georgia Properties Partnership, 2012 BCSC 1484: Counsel to the developer of the Hotel Georgia in successfully defeating certification of a proposed class of purchasers of residential units

Icahn Partner LP v. Lions Gate Entertainment Corp., 2010 BCSC 1547, 2010 BCCA 573, 2011 BCCA 228: Counsel to bondholders in securities litigation concerning Lions Gate Entertainment Corporation

VIH Aviation Group Ltd. v. CHC Helicopter LLC, 2011 BCSC 402, 2012 BCCA 125: Counsel to a joint venture partner in appeals from an arbitral award concerning the alleged termination of a joint venture agreement for helicopter services to the Newfoundland off-shore oil fields

Sturm v. Sprott Lending Corporation et al, 2014 BCSC 90: Counsel to the defendants in which the defendants successfully invoked a Sunset Clause in a plan of arrangement and the plaintiffs’ claims for shares in successor corporations were dismissed

Bellan v. Curtis et al, 2007 MBQB 221, Manitoba (Securities Commission) v. Crocus Investment Fund, 2009 MBQB 13: Counsel in class action litigation in the Manitoba Queens Bench involving the receivership of a labour- sponsored venture capital pool

Piscedda Mining Construction International Inc. v. Crew Gold Corporation et al, 2011 YKSC 79: Represented defendants in successful challenge to jurisdiction of Yukon Courts over claim for over $100 million in damages arising from development of a mine in Africa

Casey v. Copperleaf Technologies Inc., 2010 BCSC 417: Counsel to the directors of Copperleaf Technologies Inc. in the successful defence of oppression proceedings

British Columbia v. Imperial Tobacco Canada Ltd., 2009 BCCA 540: Counsel to Imperial Tobacco in the British Columbia Court of Appeal in third party litigation against the Government of Canada related to health care cost recovery claims by the Province of British Columbia, and related to claim for damages by class action plaintiffs Knight v. Imperial Tobacco Canada Ltd, 2009 BCCA 541

Aurizon Mines Ltd. v. Northgate Minerals Ltd., 2006 BCSC 1022, 2006 BCCA 340: Counsel to a plaintiff public mining company which successfully obtained a permanent injunction enjoining an attempted hostile take-over bid

Fanshawe College v. LG Phillips et al, 2011 ONSC 2484; Counsel to AU Optronics Corporation in competition class actions in British Columbia and Ontario

Counsel to a junior mining company in a recent series of commercial arbitrations and related oppression proceedings resulting in a February 2012 supported take-over of client for $100 million, a substantial premium to market;

Strother v. 3464920 Canada Inc., 2007 SCC 24: Counsel in a case involving the nature of a lawyer and law firm’s duties to former clients and the scope of equitable remedies available for breach of fiduciary duty

Ad hoc counsel to the British Columbia Securities Commission in a number of investigations and court proceedings;

Counsel to DaimlerChrysler Corporation in class action litigation: Robson v. DaimlerChrysler Corp., 2001 BCSC 40, 2002 BCCA 354

Class action counsel in the national breast implant litigation for Minnesota Mining and Manufacturing Ltd. (3M) in both superior and federal courts

Counsel to Northern Continental Resources Inc. in defence of an attempted hostile take-over bid

Counsel to shareholders of Crew Development Corporation in hostile take-over bid dispute; Counsel to eDispatch.com in defence of an attempted take-over bid;

Counsel to Novus International Inc. in competition law class actions commenced in Ontario, Quebec and British Columbia;

Counsel to Western Delta Lands Partnership in complex commercial litigation involving the disposition of Burns Bog;

Counsel to MacDonald, Dettweiler and Associates in litigation involving the privatization of BC Online;

Represented the former flight attendants of Canadian Airlines in superior and federal courts in relation to issues arising out of the merger between Canadian Airlines and Air Canada.

News

News

June 2017

Ken McEwan, Q.C. and Trevor Bant successfully represented the Law Society of British Columbia in professional disciplinary proceedings concerning a lawyer’s receipt and disbursement of $26 million from offshore jurisdictions in 4 transactions. The decision confirmed important principles of lawyers’ self-regulation including when asked to facilitate a transaction that appears to be suspicious, a lawyer has a duty to make inquiries sufficient to establish, on an objective basis, that the transaction is legitimate, or should decline the engagement.

On June 7, 2017, Ken McEwan presented on the role of respondent’s counsel at CLEBC’s course “Sexual Violence & Misconduct Policies for Post Secondary Institutions”.

March 2017

Ken McEwan was elected Secretary/Treasurer of the International Society of Barristers at its Annual Convention in Cancun, Mexico. Ken is the first Canadian lawyer to be so honoured by the United States based society, dedicated to excellence and professionalism in trial advocacy. Ken will be the Program Chair for the next annual convention, scheduled to be held on April 15-19, 2018 in London, England.

Ken McEwan, Q.C., William Smart, Q.C., and Ken Leung successfully defended Fortress Paper Ltd. and Fortress Specialty Cellulose Inc. against a multimillion dollar claim for alleged knowing assistance in breach of trust, breach of confidence, and inducing breach of contract pertaining to the Fortress defendants’ acquisition and conversion of a pulp mill in Thurso, Quebec. The plaintiffs pursued an accounting and disgorgement remedy, along with punitive damages. Their claims against the Fortress defendants were dismissed in their entirety. The reasons for judgment can be found here.

January 2017

Ken McEwan, Q.C. and Brian Duong successfully brought an application for summary trial, dismissing in its entirety a claim by owners of a residential development against the developer and adjacent property owners for additional parking stalls in a shared underground parking facility pursuant to an Agreement of Purchase and Sale. The reasons for judgment, released January 31, 2017, may be found here: Basha Sales Co. Ltd. v. Adera Equities Inc., 2017 BCSC 137. Ken and Brian were previously successful in the same action in having a certificate of pending litigation in respect of the claimed interest in parking stalls set aside. Those reasons for judgment may be found at: Basha Sales Co. Ltd. v. Adera Equities Inc., 2017 BCSC 94

December 2016

On December 8, 2016, together with Chief Justice Christopher Hinkson, Ken McEwan, Q.C. gave a presentation entitled “Hidden Tips for Discovery” to the Canadian Bar Association Civil Litigation Vancouver section meeting.

Hunter Litigation Chambers has been listed as one of the three top dispute resolution firms in British Columbia by the influential Chambers Guide 2017. Ken McEwan, Q.C. was identified as one of leading litigation practitioners in the Guide.

Ken McEwan, Q.C. and John Hunter, Q.C. have been recognized as leading litigation counsel in the London-based Who’s Who Litigation 2016. Ken and John were also identified in Lexpert’s 2016 Guide to the Leading US/Canada Cross-Border Litigation in the area of Corporate-Commercial Litigation. Ken was also recognized in Class Actions and Securities Litigation in the Lexpert Guide.

Ken McEwan, Q.C. and Brian Duong successfully defended an application brought against a national law firm claiming a disqualifying conflict of interest in Stewart v. Stewart et. al., 2016 BCSC 2256.

November 2016

Ken McEwan, Q.C. co-chaired the Advocates’ Society program on Arbitration Advocacy on November 2nd in Vancouver.

Ken McEwan, Q.C. and Trevor Bant were counsel in an appeal concerning the test for implied waiver in court pleadings of solicitor-client privilege. The reasons for judgment, now the leading case in this province, are indexed as Soprema Inc. v. Wolrige Mahon LLP, 2016 BCCA 471.

June 2016

John Sopinka’s classic book on trial practice has been revised by Ken McEwan, Q.C. and published by Lexis Nexis publishers as Sopinka on the Trial of an Action (3rd ed.) Ken has updated this important work with a chapter on the proper functioning of the trial, the professional and ethical responsibilities of counsel and access to justice considerations. He has also revised the chapter on the role of counsel, has discussed important cases since the last edition and discussed significant differences in trial practice across the country. This book will now be the standard work for trial practice in Canada. Congratulations to Ken for a major contribution to trial advocacy in this country.

May 2016

Ken McEwan, Q.C. has been named a member of the Canadian Bar Association National Class Action Task Force. The Task Force is comprised of members of the judiciary, as well as leading class action practitioners, representing both the plaintiff and defence bar, and different regions of the country. Ken joins as a representative of the defence bar in British Columbia. The work of the Task Force includes developing protocols and proposals for the administration of national and multi-jurisdictional class actions.

Ken McEwan, Q.C. and Emily Kirkpatrick successfully represented Lions Gate Entertainment Corporation in defeating a shareholder application to bring a derivative action in Lions Gate’s name against current and former directors and officers. The proceeding arose out of circumstances surrounding the attempted takeover of Lions Gate by Carl Icahn in 2010. The reasons for judgment may be found here.

March 2016

For the fourth consecutive year (2013-2016), Ken McEwan, Q.C. has been named British Columbia litigator of the year by Benchmark Canada. Ken was also nominated as Canadian Competition Litigator of the Year. Hunter Litigation Chambers was nominated as British Columbia firm of the year. The firm has once again been identified in the current Benchmark 2016 as "Highly Recommended", the highest category in the Benchmark listing. Ken,is recognized as "Local Litigation Stars"..