Lawyer Profile Detail
AREA OF EXPERTISE
University of Toronto
British Columbia, 2005
Brandon Kain is a partner in our Litigation Group in Toronto. His practice focuses on commercial litigation, class actions and regulatory/administrative law, with a particular emphasis upon written advocacy and opinions.
Mr. Kain has been counsel in 5 civil appeals before the Supreme Court of Canada, where he has acted for both appellants and respondents. He has also appeared as counsel before the Federal Court of Appeal, the Federal Court, the Ontario Divisional Court, the Ontario Superior Court of Justice, the British Columbia Court of Appeal, the British Columbia Supreme Court and in commercial arbitrations, and has made oral submissions in appeals, complex motions and on judicial review.
Mr. Kain is co-founder of our National Appellate Litigation Group, and is the editor-in-chief of its award winning blog, Canadian Appeals Monitor. He is also a contributing author of Defending Class Actions in Canada, published by CCH, and has written or co-written articles in the Canadian Bar Review, Canadian Business Law Journal, Supreme Court Law Review, Annual Review of Civil Litigation and Banking and Finance Law Review. His publications have been cited by the Supreme Court of Canada in the areas of contract law and the economic torts.
Mr. Kain is an adjunct professor at the University of Western Ontario Faculty of Law, where he lectures in the area of advanced contract law. He has also presented for the Law Society of Upper Canada, the University of Toronto Faculty of Law, Osgoode Professional Development, The Canadian Institute and The Commons Institute on issues relating to appellate litigation, contracts, administrative law and employment law.
Mr. Kain is a member of the 2014-2015 executive committee of the Class Actions Section of the Ontario Bar Association, and is also a member of the Canadian, American and International Bar Associations.
Mr. Kain obtained his LL.B. (Honours) from the University of Toronto in 2003, where he received the Fasken Martineau DuMoulin LLP Award for Academic Excellence in first year, and graduated with Honours Standing. He also obtained his MA in philosophy from the University of Toronto in 1999 and his BA (First Class Honours) in philosophy from Queen's University in 1998.
He was called to the Ontario bar in 2004, and to the Alberta and British Columbia bars in 2005.
- Successfully represented the appellant in an appeal to the Supreme Court of Canada in which the Court recognized for the first time that contracts throughout Canada are subject to a general organizing principle of good faith and a duty of honest performance: Bhasin v. Hrynew, 2014 SCC 71 (CanLII)
- Represented Robert Hryniak in two companion appeals to the Supreme Court of Canada regarding the test for summary judgment and the tort of civil fraud: Hryniak v. Mauldin, 2014 SCC 7 (CanLII); Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8 (CanLII)
- Represented Microsoft Corporation in an appeal to the Supreme Court of Canada regarding the certification of a competition class action involving indirect purchasers: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 (CanLII)
- Represented Abbott Laboratories in a contested motion to certify a class action relating to the weight-loss medication MERIDIA®: Charlton v. Abbott Laboratories, Ltd., 2013 BCSC 1712 (CanLII)
- Represented Irving Pulp Paper in an appeal to the Supreme Court of Canada from a decision concerning the validity of its random alcohol testing policy for unionized employees: Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp Paper, Ltd., 2013 SCC 34 (CanLII)
- Represented Bell Canada in an appeal to the Federal Court of Appeal from a CRTC undue preference decision under the Broadcasting Act, and in related procedural motions: BCE Inc. v. TELUS Communications Company, 2013 FCA 58 (CanLII); BCE Inc. v. TELUS Communications Company, 2012 FCA 198 (CanLII); BCE Inc. v. TELUS Communications Company, 2012 FCA 222 (CanLII)
- Represented Ontario Lottery and Gaming Corporation in an appeal from a commercial arbitration and in a motion to stay the arbitral decision pending the appeal: Ontario First Nations (2008) Limited Partnership v. Aboriginal Affairs (Ontario), 2013 ONSC 7141 (CanLII); Ontario First Nations (2008) Limited Partnership v. Ontario, 2013 ONSC 814 (CanLII)
- Represented AstraZeneca Pharmaceuticals in a contested motion to certify a class action relating to the anti-psychotic medication SEROQUEL®, and the subsequent appeal, which was the first pharmaceutical class action denied certification in Ontario: Martin v. AstraZeneca Pharmaceuticals PLC, 2012 ONSC 2744 (CanLII); Martin v. AstraZeneca Pharmaceuticals PLC, 2013 ONSC 1169 (Div. Ct.) (CanLII)
- Represented Bell Canada in a judicial review application seeking to prohibit the federal Cabinet from considering a petition to vary a CRTC decision under the Telecommunications Act: Bell Canada v. Canada (A.G.), 2011 FC 1120 (CanLII)
- Represented Air Canada in a judicial review application and the subsequent appeal regarding the granting of slots to commercial passenger airlines at the Toronto Island Airport: Air Canada v. Toronto Port Authority, 2010 FC 774 (CanLII); Air Canada v. Toronto Port Authority, 2011 FCA 347 (CanLII)
- Represented Chrysler Canada on an appeal from a motion to strike a judicial review application relating to transfer pricing reassessments under the Income Tax Act: Chrysler Canada Inc. v. Canada, 2008 FC 1049 (CanLII)
- "Developments in Communications Law: The 2012-2013 Term – The Broadcasting Reference, the Supreme Court and the Limits of the CRTC" (2014) 64 S.C.L.R. (2d) 63 (Reproduced by permission of LexisNexis Canada Inc.)
- "Through the Looking Glass: Recent Developments in Piercing the Corporate Veil" (2013) 28 B.F.L.R. 525 (with Thomas G. Heintzman, Q.C.) (Reproduced by permission of Carswell, a division of Thomson Reuters Canada Limited)
- "Developments in Private International Law: The 2011-2012 Term – The Unfinished Project of the Van Breda Trilogy" (2012) 59 S.C.L.R. (2d) 277 (with Elder C. Marques and Byron Shaw) (Reproduced by permission of LexisNexis Canada Inc.)
- "Mapping the Serbonian Bog: The Territorial Limits of Secondary Market Securities Act Claims Under the Canadian Constitution — Part II" (2012) 53 Can. Bus. L.J. 233 (with Byron Shaw) (Reproduced by permission of Canadian Business Law Journal Inc., and Canada Law Book, a division of Thomson Reuters Canada Limited)
- "Mapping the Serbonian Bog: The Territorial Limits of Secondary Market Securities Act Claims Under the Canadian Constitution— Part I" (2012) 53 Can. Bus. L.J. 63 (with Byron Shaw) (Reproduced by permission of Canadian Business Law Journal Inc., and Canada Law Book, a division of Thomson Reuters Canada Limited)
- "Solicitor-Client Privilege and the Conflict of Laws" (2012) 90 Can. Bar. Rev. 245 (Reproduced by permission of the Canadian Bar Review)
- "The Implication of Contractual Terms in the New Millennium" (2011) 51 Can. Bus. L.J. 170 (Reproduced by permission of Canadian Business Law Journal Inc., and Canada Law Book, a division of Thomson Reuters Canada Limited)
- "The "Unlawful Means" Element of the Economic Torts: Does a Coherent Approach Lie Beyond Reach?", in Todd L. Archibald and Randall Scott Echlin, eds., Annual Review of Civil Litigation, 2010 (Toronto: Thomson Carswell, 2010) 33 (with Anthony Alexander) (Reproduced by permission of Carswell, a division of Thomson Reuters Canada Limited)
- "The Doctrine of Public Policy in Canadian Contract Law", in Todd L. Archibald and Randall Scott Echlin, eds., Annual Review of Civil Litigation, 2007 (Toronto: Thomson Carswell, 2007) 1 (with Douglas T. Yoshida) (Reproduced by permission of Carswell, a division of Thomson Reuters Canada Limited)
- "Recent Watershed Developments in Oppression Remedies and Shareholder Activism", in Todd L. Archibald and Randall Scott Echlin, eds., Annual Review of Civil Litigation, 2006 (Toronto: Thomson Carswell, 2006) 33 (with Mendy Chernos and Michael D. Briggs) (Reproduced by permission of Carswell, a division of Thomson Reuters Canada Limited)
Supreme Court of Canada Recognizes a General Principle of Good Faith in Contractual Performance
Summary Judgment: Come One; Come All
The Latest Critical Updates and Best Practices for Successfully Managing Employment & HR Law Issues in Today's Rapidly Evolving Legal and Regulatory Landscape
Ontario Divisional Court Upholds Denial of Certification of Pharmaceutical Class Action Against AstraZeneca
Ontario Denies Certification in Proposed National Class Action on Anti-Psychotic Medicine
Widening The Net of Federal Government Liability: Canada (A.G.) v. TeleZone Inc.
A Real and Substantial "Tune-Up": The Ontario Court of Appeal Reformulates the Test for Asserting Jurisdiction Against Out-of-Province Defendants
Contractual exclusion clauses: have the reports of the death of the doctrine of fundamental breach been greatly exaggerated?
Galambos v. Perez: The Supreme Court of Canada Clarifies the Law of Fiduciary Relationships
Chrysler Canada Inc. v. Canada: Taxpayers Entitled to Seek Judicial Review of Ministerial Decisions under the Canada-United States Tax Convention (1980)
Transactions & Cases
Ontario Divisional Court upholds denial of certification of pharmaceutical class action against AstraZeneca
Ontario Commercial List Court dismisses all claims brought against Xstrata Copper by Barrick Gold
Ontario Superior Court denies certification in proposed national class action on anti-psychotic medicine
Court denies certification of a product liability class action related to a drug withdrawn from the market
Rio Tinto to manage Oyu Tolgoi project under new financial agreement with Ivanhoe Mines
ARAM Systems Ltd's appeal dismissed against NovAtel Inc. regarding litigating US Patent Law in Canada
ENMAX Corporation judicial review application
Reorganization of Chrysler LLC