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Brandon
Kain

Partner

Toronto

Contact by email at [email protected]

t. 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 and regulatory law, commercial litigation and class actions. He has successfully acted for a wide variety of clients in major litigation, including AstraZeneca Pharmaceuticals, Bell Canada, Cathay Pacific Airways, Chrysler, HSBC Holdings, Lundbeck, the Ontario Lottery and Gaming Corporation and Syngenta.

He has extensive experience in appellate advocacy, having acted in 16 appeals before the Supreme Court of Canada, as well as cases in the Federal, British Columbia and Ontario Courts of Appeal. Seven of his cases have been included in Lexpert Magazine’s annual list of the Top 10 Business Decisions in Canada, with three ranked #1. He is co-founder of our National Appellate Litigation Group and editor-in-chief of its award-winning blog, Canadian Appeals Monitor.

Brandon frequently acts in judicial reviews and administrative appeals. He delivered the oral argument for Bell Canada and the National Football League on the standard of review in the Supreme Court of Canada’s administrative law trilogy, heard December 4-6, 2018. He has also acted in several other leading administrative law cases, including: Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40; Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54; 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 has significant experience in regulatory litigation involving the communications industry, having appeared in several 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 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.

Brandon also acts on major commercial disputes. He successfully represented the appellant in the leading Canadian case on the principle of good faith in contracts, Bhasin v. Hrynew, 2014 SCC 71, and successfully represented the respondent in the leading Canadian case on the tort of fraud, Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8. 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.

As well, Brandon regularly represents clients in class actions. He appeared before the Supreme Court of Canada on behalf of appellants in the securities class action trilogy (Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60) and on behalf of the respondents in the competition class action trilogy (Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57). He also previously served on the executive committee of the Class Actions Section of the Ontario Bar Association.

His class actions often involve cross-border issues, and he recently defeated a proposed $7 billion (USD) secondary market securities class action under Part XXIII.1 of the Ontario Securities Act based on lack of jurisdiction over a foreign issuer before the Ontario Court of Appeal: Yip v. HSBC Holdings plc, 2018 ONCA 626. He also recently struck out the entirety of a proposed class action alleging economic loss from a foreign import ban relating to genetically modified corn: Darmar Farms Inc. v. Syngenta Canada, 2018 ONSC 7129.

Brandon has achieved particular success in prescription pharmaceutical class actions, having defeated certification in three such cases, including the first decisions in both Ontario and British Columbia where certification was refused: Price v. H. Lundbeck A/S, 2018 ONSC 4333; Charlton v. Abbott Laboratories, Ltd., 2015 BCCA 26; Martin v. AstraZeneca Pharmaceuticals PLC, 2012 ONSC 2744, aff’d 2013 ONSC 1169 (Div. Ct.). He also 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.

Brandon is a regular writer and speaker on legal issues. He has written or co-written 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 and Supreme Court Law Review. His publications have been cited in 14 cases by the Supreme Court of Canada and the Alberta, British Columbia, Manitoba, Ontario and Quebec courts. In addition, he has presented for 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, Osgoode Professional Development, the Prospectors and Developers Association of Canada and the University of Toronto Faculty of Law.

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.

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