Barbara L. Grossman | Fraser Milner Casgrain LLP

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Barbara L. Grossman LL.B., Partner

As a partner in Fraser Milner Casgrain LLP’s Litigation and Dispute Resolution Practice Group, Barbara practises in all areas of commercial litigation, including class actions, with an emphasis on insolvency, financial services, and real estate litigation. Barbara also has extensive experience in the areas of professional liability, intellectual property litigation, estate, trust and pension litigation, and injunctions and other extraordinary remedies.

Barbara has appeared as lead counsel on mediations, arbitrations, before administrative tribunals and in leading cases at all levels of trial and appellate courts, including the Supreme Court of Canada, and is experienced in cross-border and complex multi-party litigation.

Barbara started her litigation career as a Clerk to the Chief Justice of the High Court of Ontario. Since 1990 she has been certified by The Law Society of Upper Canada as a specialist in civil litigation.

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As a partner with Fraser Milner Casgrain LLP’s Litigation and Dispute Resolution Practice Group, Barbara practises in all areas of commercial litigation, including class actions, with an emphasis on insolvency, financial services, and real estate litigation. Barbara also has extensive experience in the areas of professional liability, intellectual property litigation, estate, trust and pension litigation, and injunctions and other extraordinary remedies.

Has represented parties and assisted U.S. counsel in Canadian and cross-border class actions and class action settlements concerning interest rates, pension issues, tax issues and security issues
Regularly represents stakeholders in the litigation aspects of numerous Canadian insolvencies
Regularly acts on behalf of lenders, vendors, purchasers, landlords and tenants in all aspects of real estate disputes, including the interpretation, rectification, enforcement and default remedies in relation to mortgages, agreements of purchase and sale and commercial lease transactions
Regularly represents financial institutions and other creditors in litigation concerning creditors’ rights, security enforcement issues, lender liability and oppression claims, including numerous cases concerning the interpretation, priorities and payment obligations and remedies under letters of credit, cheques and other negotiable instruments, guarantees, loan commitments and agreements, and real and personal property security
Has litigated numerous cases in the estate, trust and pension areas, including the litigation aspects of contested interpretations, motions for advice and directions, and the litigation aspects of pension windups and surplus sharing issues
Has successfully represented authors, publishers and businesses in copyright and trade-mark infringement and related claims
Represents plaintiffs and defendants in professional liability claims against auditors, lawyers, customs brokers and retail securities brokers
Has represented aircraft lessors in litigation arising out of airline insolvencies and a Canadian airport in litigation arising out of an aviation accident

Representative Work

Acted on behalf of a landlord in a rent arbitration to determine the prevailing rent for a financial institution for the renewal term of a Schedule I bank lease in Toronto

Acted for a Canadian financial institution and securities broker in connection with Asset Backed Commercial Paper

Defence of an Ontario class action by medical fellows arising out of Canada Revenue Agency ruling that their fellowship income is employment income subject to employee withholdings for income tax, EI and CPP

Defence counsel in an Ontario class action by customers who allege GST was improperly charged on certain fees

Co-lead counsel in two successful appeals to the Supreme Court of Canada in a class action concerning restitution claims in relation to criminal rates of interest, and numerous other cases concerning interest rates

Pichette v. Toronto Hydro, 2010 ONSC 4060 (CanLII). Settled a major class action against Toronto Hydro and all municipal electrical utilities in Ontario for restitution of late payment penalties they charged. The class action involved both a plaintiff and defendant class and the settlement terms were novel with respect to the defendant class opt out rights etc. Defendant class actions are rare and certified and settled defendant class actions are even rarer.

Counsel in the cross-border settlement of the Nortel class actions

Represents the author and publisher of the Harry Potter novels in Canada in connection with all Canadian copyright protection issues and embargo enforcement rights and remedies, including winning a number of injunctions to protect the copyright in and pre-release date confidentiality of the Harry Potter novels

Acted for aircraft lessors in the insolvency of Canada 3000 in a case that was litigated up to the Supreme Court of Canada concerning statutory joint and several liability and priority issues in relation to statutory aircraft seizure and detention rights of Canada’s navigation and airport authorities

Acted as counsel to a religious employer in a landmark human rights appeal dealing with the interpretation of the Ontario Human Rights Code and the rights of religious employers to engage in faith-based hiring, and to insist upon religious adherence as a condition of employment

Defence counsel for a major Canadian financial institution in multi-party litigation that was favourably settled at mediation arising out of a leveraged buyout of a major public company retailer that led to its immediate insolvency

Counsel for a commercial real estate landlord in multi-party litigation arising out of the allocation of realty taxes to tenants that was favourably settled at mediation

Successfully represented a publisher in the first Canadian decision to interpret the “Dickens provision” in the Copyright Act

Representing US Fortune 500 corporations to stop cyber-squatting and website infringements by Canadian parties

Defence counsel for auditors in a multi-party negligence and misrepresentation claim arising out of the purchase of a business in a case that was settled without payment by the auditors

Defence counsel for a pension plan sponsor in the leading Ontario appellate case dealing with a novel issue concerning surplus dilutions resulting from plan mergers on the sale of a business

Plaintiffs’ counsel in a shareholder oppression claim that was favourably settled at mediation on behalf of credit union minority shareholders of a trust company

Defence counsel for a financial institution assignee in a claim that was favourably settled at mediation in the litigation arising out of the lease financing by MFP Financial in the City of Waterloo

Defence counsel for an airport in multi-party litigation arising out of a fatal airplane crash following take-off

Represented the non-APERT subclass in the class action settlement involving the Royal Trust Pension Plan

Represented the International Swaps and Derivatives Association, Inc. (“ISDA”) as an intervener in an Ontario appeal concerning the interpretation of the statutory definition of “eligible financial contract”

Publications

Binding Arbitration Common In Determining Renewal Rent

Arbitrating Renewal Rent: Drafting The Appropriate Renewal Arbitration Provision

Getting the Deal Through - Air Transport 2011

Damages: Highway Properties v. Kelly, Douglas & Co. — Recent Developments

Recent Developments in Canada Relating to Privilege and Conflicts

Teaching Roles

Guest teaching in the Osgoode Hall Law School LLM programmes in Civil Litigation and in Real Estate (leasing)

Has taught trial advocacy at Osgoode Hall Law School to lawyers and law students for many years

Invited to participate as a mentor in The Advocates’ Society’s 2007, 2009 and 2011 conferences for women in litigation to lead discussions on various practical tips and strategies for dealing with gender obstacles to becoming a successful advocate

Prior Speaking Engagements

Frequent speaker on various aspects of commercial litigation, including, most recently:

Presenter, "Arbitrating Renewal Rent: Drafting The Appropriate Renewal Arbitration Provision," The Six-Minute Commercial Leasing Lawyer, The Law Society of Upper Canada, February 2011

Presenter, “Class Actions: Settlements,” TCHC Legal Conference, Toronto, April 21, 2009

Presenter, The Advocates’ Society Toronto Court House Series, "Objection!" February 12, 2009

Presenter, "Mastering the Art of Appellate Advocacy,” The Advocates Society Thunder Bay Court House Series – How to Win Cases, Thunder Bay, February 20, 2008

Panel Moderator, “Keeping The Kimono Closed-Confidentiality and Privilege Issues in E-Document Management," The Advocates’ Society Fall Convention, November 15-18, 2007

Presenter, "Enforcement in Canada - Intellectual Property Law," The Erie Institute of Law, C.L.E Conference in Buffalo, September 27, 2007

Presenter, "Understanding Notice Clauses," The Six-Minute Commercial Leasing Lawyer 2007, Law Society of Upper Canada, February 21, 2007

Presenter, “Crisis Management - Your Role in a Corporate Crisis,” Staying One Step Ahead: Important Considerations for Corporate Counsel Conference (FMC), November 16, 2006

Presenter, “International Injunction Readiness for Anticipated Crisis,” The Martindale-Hubbell Counsel to Counsel Conference - Chicago: Managing Crisis and Mitigating Risk, September 12-13, 2006

Presenter, “Inducing Breach of Contract and Tortious Liability for Breach - The New Frontier”: Paper delivered at the Law Society of Upper Canada, Six-Minute Leasing Lawyer (2006), February 15, 2006

Presenter, “Recent Developments in Canada Relating to Privilege and Conflicts,” Paper delivered at the Association of Corporate Counsel of America (ACC), New York City, November 3, 2005

Presenter, “Specific Mortgage Enforcement Issues,” Paper delivered at the Ontario Bar Association seminar – Everything You Always Wanted to Know about Mortgages (And Were Afraid to Ask) a.k.a. The Joy (and Agony) of Mortgages, March 9, 2004

Presenter, “Good Faith in Real Property Law in Canada: Recent Developments,” Paper delivered at the Law Society of Upper Canada, Gavel to Gavel III, December 5, 2001