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Brandon
Kain

Partner

Toronto

Contact by email at [email protected]

t. +1 416-601-7821

2391

Law School

University of Toronto

Bar Admission

Ontario, 2004

Brandon Kain is a partner in our Litigation Group in Toronto.  His practice focuses on appellate litigation, administrative law, broadcasting and telecommunications, commercial disputes, class actions and product liability.  He has acted for a wide variety of clients in major litigation – including individuals, large and small corporations, industry associations and public interest groups – and has appeared before the Supreme Court of Canada and the Federal, Alberta, British Columbia, Manitoba, Ontario and Saskatchewan courts.

APPELLATE LITIGATION

Brandon is the co-founder of our National Appellate Litigation Group.  He has acted in 20 appeals in the Supreme Court of Canada, including as lead counsel for the appellant, along with numerous appeals in the Federal and provincial appellate courts.  His appeals have involved a diverse range of issues, encompassing aboriginal, administrative, broadcasting, civil procedure, class actions, constitutional, contract, criminal, environmental, insolvency, labour and employment, private international, product liability, restitution, tax, telecommunications and tort law.  Eight of his appeals are included in Lexpert Magazine’s annual list of the Top 10 Business Decisions in Canada, with three ranked #1, and two others have been named a “National Impact Case of the Year” by Benchmark Litigation Canada.

ADMINISTRATIVE LAW

Brandon frequently acts in judicial reviews and administrative appeals.  He successfully delivered the oral argument for the appellants, Bell Canada and the National Football League, on the standard of review in the Supreme Court of Canada’s 2019 administrative law trilogy, which established that questions of law are reviewed for correctness when subject to statutory appeal rights, and sets out Canada’s governing framework for judicial review: Bell Canada v. Canada (A.G.), 2019 SCC 66.  Brandon has also acted in several other leading administrative law cases, including Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40; Green v. Law Society of Manitoba, 2017 SCC 20; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34; and Air Canada v. Toronto Port Authority, 2011 FCA 347.  He was recently successful in defeating a judicial review application seeking to cancel several of Syngenta Canada’s federal pest control product registrations: David Suzuki Foundation v. Canada (A.G.), 2019 FC 411.

BROADCASTING AND TELECOMMUNICATIONS

Brandon has significant experience in litigation involving the broadcasting and telecommunications industries, having acted in five appeals from the CRTC to the Federal Court of Appeal, along with the judicial review of a Cabinet decision in the Federal Court.  He successfully represented Bell Canada and the National Football League in challenging the CRTC’s order prohibiting the simultaneous substitution of Canadian and American television commercials for the Super Bowl before the Supreme Court of Canada: Bell Canada v. Canada (A.G.), 2019 SCC 66.  Brandon also successfully represented Bell Canada in challenging the validity of the CRTC’s Wholesale Code under the Broadcasting Act before the Federal Court of Appeal: Bell Canada v. 7265921 Canada Ltd., 2018 FCA 174.  As well, he successfully obtained a permanent injunction prohibiting the unauthorized retransmission of conventional television services over the Internet in violation of the Copyright Act: 2251723 Ontario Inc. v. Bell Canada, 2016 ONSC 7273.

COMMERCIAL DISPUTES

Brandon has acted in several major commercial disputes.  He has particular experience with the contractual principle of good faith, having recently acted as lead counsel to the appellant in C.M. Callow Inc. v. Zollinger (heard December 6, 2019), the first case in which the Supreme Court of Canada will substantively consider the principle in the commercial setting after introducing it in Bhasin v. Hrynew, 2014 SCC 71, where Brandon successfully represented the appellant.  As well, he recently acted as counsel to the intervener, the Canadian Association of Counsel to Employers, in Matthews v. Ocean Nutrition Canada Limited (heard October 8, 2019), the first post-Bhasin case in which the Supreme Court of Canada has been asked to substantively consider the principle of good faith in the employment setting.

Brandon also successfully represented the respondent in the leading Canadian case on the tort of fraud, Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, and represented the appellant in the landmark summary judgment case of Hryniak v. Mauldin, 2014 SCC 7.  In addition, he represented the intervener, the Insolvency Institute of Canada, in Chandos Construction Ltd. v. Deloitte Restructuring Inc. (heard January 20, 2020), where the Supreme Court of Canada will consider the anti-deprivation rule in insolvency proceedings and the rule against contractual penalties.

CLASS ACTIONS

Brandon regularly represents clients in class actions.  He appeared before the Supreme Court of Canada on behalf of the IMAX appellants in the securities class action trilogy (Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60), and on behalf of the Microsoft respondents in the competition class action trilogy (Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57).  He also acted as lead counsel for the intervener, the Canadian Chamber of Commerce, in TELUS Communications Inc. v. Wellman, 2019 SCC 19, where the Supreme Court of Canada upheld the enforceability of arbitration clauses in agreements with business customers in the class action setting.  In addition, he recently acted as lead counsel for the intervener, the Canadian Gaming Association, in Atlantic Lottery Corporation Inc. v. Babstock (heard December 3, 2019), where the Supreme Court of Canada will consider the viability of waiver of tort and other forms of class disgorgement relief.  Brandon previously served on the executive committee of the Class Actions Section of the Ontario Bar Association.

His class actions often involve cross-border issues.  He successfully acted as lead counsel before the Ontario Court of Appeal in dismissing part of a proposed $400 million negligence class action alleging pure economic loss from a foreign import ban involving genetically modified corn: Darmar Farms Inc. v. Syngenta Canada, 2019 ONCA 789.  He also defeated a proposed $7 billion (USD) secondary market securities class action in the Ontario Court of Appeal based on lack of territorial jurisdiction over the foreign securities issuer: Yip v. HSBC Holdings plc, 2018 ONCA 626.

PRODUCT LIABILITY

Brandon has achieved particular success in product liability cases.  He defeated certification in the first prescription pharmaceutical class actions where certification was refused in British Columbia and Ontario: Charlton v. Abbott Laboratories, Ltd., 2015 BCCA 26; Martin v. AstraZeneca Pharmaceuticals PLC, 2012 ONSC 2744, aff’d 2013 ONSC 1169 (Div. Ct.).  As well, he successfully represented the defendants in the first pharmaceutical class action to be defeated on summary judgment in Canada: Wise v. Abbott Laboratories, Ltd., 2016 ONSC 7275.

ACADEMIC AND PROFESSIONAL INVOLVEMENT

Brandon is an active member of Canada’s legal academic and professional communities.  He has taught Advanced Contracts at the University of Western Ontario Faculty of Law since 2012, and Economic Torts at the University of Toronto Faculty of Law since 2015.  Brandon has also published 20 articles in the Advocates’ Quarterly, Alberta Law Review, Annual Review of Civil Litigation, Banking and Finance Law Review, Canadian Bar Review, Canadian Business Law Journal, Commercial Litigation, Corporation Litigation, Collective Redress in Europe – Why and How? and Supreme Court Law Review, many of which have been cited by the Supreme Court of Canada and other Canadian courts.  He is a frequent speaker on legal issues, having presented for the Advocates' Society, the Canadian Bar Association, the Canadian Centre for Ethics & Corporate Policy, Canadian Defence Lawyers, the Canadian Energy Law Foundation, the Canadian Institute, the Commons Institute, the Law Society of Upper Canada, the Ontario Bar Association, Osgoode Professional Development, the Prospectors and Developers Association of Canada, the Runnymede Society, the Toronto Lawyers' Association and the University of Toronto Faculty of Law.

EDUCATION

Brandon 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.

REPRESENTATIVE CASES

 

PUBLICATIONS

SPEAKING ENGAGEMENTS

  • Panelist, The Runnymede Society, 2020 Law and Freedom Conference, “Administrative Law: Vavilov and the Supreme Court” (February 29, 2020)
  • Panelist, The Advocates’ Society, “Bell and Vavilov: The SCC's impact on standard of review, administrative law and arbitration decisions” (February 14, 2020)
  • Co-Chair, The Canadian Institute, 19th Annual Conference on Advanced Administrative Law & Practice (October 29-30, 2019)
  • Panelist, The Canadian Institute, 19th Annual Conference on Advanced Administrative Law & Practice, “Contractual Disputes and Judicial Review” (October 29-30, 2019)
  • Moderator, Toronto Lawyers’ Association, “Contractual Interpretation: Five Years after Sattva” (April 9, 2019)
  • Panelist, Ontario Bar Association, Essential Update on Procedural Fairness: 20 Years Post-Baker, “Where Do We Stand on Procedural Fairness” (February 5, 2019)
  • Speaker, Canadian Bar Association, “The Art of Persuasive Writing”, CBA Skilled Lawyers Series 2019 (January 29, 2019)
  • Speaker, Canadian Bar Association, “The Art of Persuasive Writing”, CBA Skilled Lawyers Series 2017 (April 6, 2017)
  • Speaker, Canadian Defence Lawyers, Defending Products Claims, “Causation” (February 22, 2017)
  • Speaker, Canadian Energy Law Foundation, Jasper Research Seminar, “Honour Among Businesspeople: The Duty of Good Faith and Contracts in the Energy Sector” (June 18, 2015)
  • Panelist, PDAC International Convention 2015, Legal Challenges Facing the Mining Industry Today, “Review of Important New Decisions Affecting Contracts, Arbitration and Dispute Resolution in the Mining Industry” (March 2, 2015)
  • Speaker, The Commons Institute, 240 Minutes on Cross-Border Litigation Strategies, “Cross-Border Insolvency Procedures” (February 19, 2015)
  • Panelist, Canadian Centre for Ethics & Corporate Policy, “Bhasin v. Hrynew: SCC Establishes General Duty of Good Faith in Commercial Contracts” (February 3, 2015)
  • Panelist, Osgoode Professional Development, “Bhasin v. Hrynew: The New Duty to Act Honestly” (January 19, 2015)
  • Panelist, Law Society of Upper Canada, 17th Biennial National Conference, New Developments in Communications Law and Policy, “The Value for Signal Case and its Implications” (May 1, 2014)
  • Chair, Canadian Defence Lawyers, “Torts: Unlawful Interference with Economic Claims” (April 23, 2014)
  • Speaker, The Commons Institute, Supreme Court & Constitutional Litigation, “Obtaining Leave to Appeal to the Supreme Court of Canada in Commercial Cases” (June 27, 2013)
  • Panelist, The Canadian Institute, Western Forum on Employment Law, “What You Need to Know to Effectively Use Drug and Alcohol Testing Lawfully” (May 7, 2013)
  • Panelist, Osgoode Professional Development, National Forum on Administrative Law and Practice, “Judicial Review of Commercial Decisions” (October 24, 2012)
  • Panelist, University of Toronto, Faculty of Law, 41st Annual Workshop on Commercial and Consumer Law, “When Should Courts Fill Gaps in Commercial Contracts? Reactions to Lord Hoffmann’s Judgment in Belize Telecom Ltd.” (October 14, 2011)