Michael D. Schafler | Fraser Milner Casgrain LLP

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Michael D. Schafler LL.B., B.A. (Hons.), Partner

Ranked by Chamber's Global in 2012 in the area of ADR, Michael is the Department Head of FMC Toronto’s Litigation Group and he is also Co-Head of FMC’s National ADR Group.

Michael's practice is focused on securities litigation, including class actions, insider trading and proxy contests, commercial arbitration and regulatory and appellate work in energy cases. He is also highly experienced in auditors' liability work. Michael has accumulated a vast array of experience in a number of industry segments, notably, mining, financial services, energy and forestry.

Mike is particularly proud of spearheading FMC’s goal of becoming the first law firm to partner with the Toronto Region Immigrant Employment Council (TRIEC) Mentorship Program, which in part led to FMC being named one of Canada’s Best Employers for New Canadians for 2011.

Michael enjoyed a stellar career as a Canadian Naval Officer from 1983-1992 and then attended Dalhousie Law School where he graduated in 1995. He has been with FMC since 1994 and was called to the Ontario bar in 1997. He became a partner in 2003.

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Since his call to the Ontario Bar in 1997, Mike has been involved in some of the biggest auditor’s liability and securities cases in Canada. He has extensive experience in large, complex commercial disputes, including in the mining and forestry sectors.

In the past five years, Mike has also developed expertise in appeals involving decisions of the Ontario Energy Board and generally has become a trusted resource for utilities in energy-related litigation matters.

Mike has extensive cross-border litigation experience, including relating to “Letters Rogatory”.

Mike also has experience in the aviation sector, where he successfully carried out an Anton Piller Order for a major international airline.

Michael was elected as an executive member of the ADR section of the Canadian Bar Association for the year 2009-2010.

Representative Work

Acting on behalf of a producer of global performance materials in an ICC Arbitration (current)

Acting on behalf of the Ontario Energy Board in connection with an appeal to the Divisional Court in relation to a wind farm project (current)

Acting for major accounting firms in auditor’s liability and class actions (including a pending $2 billion case) (current)

Acting in connection with an Ontario Securities Commission insider case (current)

Acting for major utilities in regulatory and appellate court proceedings

Canadian counsel to US Gold Corporation on its acquisition by statutory plan of arrangement of Minera Andes Inc. with a transaction value at the time of closing of approximately CDN $1.4 billion for the combined company, which was renamed McEwen Mining Inc. (NYSE; TSX: MUX), 2012

Counsel to Deloitte & Touche in upholding an earlier dismissal of a proposed US$100 million securities class action against, among others, Deloitte, in connection with a public offering of shares in the failed waste management company, Philip Services Corp. (Coulson v. Citigroup Global Markets Canada Inc. 2012 ONCA 108) (2012)

Acted for a corporation in a domestic arbitration involving a $30 million joint venture dispute (energy-related) (2011-2012)

Counsel to Lexam Explorations Inc. in respect of its combination with VG Gold Corp. to form Lexam VG Gold Inc. through a plan of arrangement, 2011

Successfully represented UK Company in a international arbitration as to a distributorship agreement (2011)

Acted for corporation in an international commercial arbitration involving an IP dispute (commercial) (2011)

Provided strategic litigation advice to lenders to the 393 MW York Energy Centre natural gas-fired electricity generating facility for northern York Region, Ontario (2010)

Acted as counsel in an arbitration relating to the correct calculation of a mining royalty (2010)

Litigation counsel to certain shareholders of Augen Capital Corp. in relation to a proxy battle which resulted in a successful court application (Mason v. Augen Capital Corp. 2010 ONSC 5319) (2010)

Counsel to Morgan Stanley Canada Limited in connection with a high profile plan of arrangement transaction involving Magna International Inc. (2010)

Counsel to company in precedent setting proxy fight case (Polar Star Mining Corporation v. Willock (2009) 96 O.R. (3d) 668 (S.C.))

Counsel to IAMGOLD Corporation on its $275 million acquisition of Orezone Resources Inc. (2009)

Counsel to Gold Eagle Mines Ltd. in its $1.5 billion friendly acquisition by Goldcorp Inc. (2008)

Acted as counsel for a major forest products company in a domestic arbitration with respect to a share valuation dispute (2008)

Counsel in an arbitration relating to the correct calculation of a mining royalty (2008)

Acted as counsel for a major forest products company in a domestic arbitration concerning a contractual dispute (2007)

Represented Rio Narcea Gold Mines, Ltd. in Lundin Mining Corporation’s $956 million take-over bid for Rio Narcea (2007)

Acted for Enbridge on its ground breaking incentive rates case (2007)

Represented Rio Narcea Gold Mines, Ltd. in Lundin Mining Corporation’s $956 million take-over (2007)

Acted for major wood forest products company in products liability case (2006)

Represented Enbridge Gas Distribution Inc., which was an intervener in the landmark Supreme Court of Canada case ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4. The Supreme Court found for ATCO, which had successfully argued in the Alberta Court of Appeal that its regulator, the Alberta Energy and Utilities Board, did not have jurisdiction over distribution of the proceeds from a sale of some of the utility’s assets. The decision has implications for utilities across the country, including Enbridge. (2006)

Acted for PowerStream on a number of rates applications and related motions (2005-2008)

Acted for Enbridge on its appeal in relation to the OEB’s decision on the Gas Distribution Access Rule (GDAR) (Enbridge for Distribution Inc. v. Ontario Energy Board) (2005), 74 O.R. (3d) 147 (C.A.) (2005)

Acted for the successful bidder in a take-over fight before the Ontario Superior Court of Justice (Commercial List), the OSC and the Court of Appeal for Ontario which resulted in a change to the bid financing rules under the Ontario Securities Act (2005)

Acted for Enbridge on its appeal in relation to the OEB’s “prudence” decision (Enbridge Gas Distribution Inc. v. Ontario Energy Board) (2005), 75 O.R. (3d) 72 (Div. ct.); rev’d (2005), 41 Admin. L.R. (4th) 69; 2006 CanLII 10734 (C.A.) (2005)

Acted for major airline in Anton Piller case (2005)

Counsel to Deloitte & Touche in its successful defence of a motion to certify a proposed shareholder class action for common law negligent misrepresentation and under s. 130 of the Ontario Securities Act (Menegon v. Philip Services Corp. 2001 Can LI 28396 (ON S.C); aff'd 2003 Can LII 36468 (ON, C.A.); leave to appeal ref'd 2003 29644 SCC.)

Acted on several “Poison Pill” or Shareholder Rights Plan cases

Publications

"Secondary Market Liability in Canada: Securities Class Actions", Practical Law Company, May 2012

"Supreme Court of Canada Simplifies the Assumed Jurisdiction Test", Focus on Litigation & Dispute Resolution, April 2012

"Settlements With Ontario Securities Commission Do Not Preclude Class Action Claims", International Law Office, March 2012

"Fully Appreciating the New Ontario Summary Judgment Regime", International Law Office, January 2012

"The New ICC Arbitration Rules – What You Need to Know", Focus on Alternative Dispute Resolution, January 2012

Teaching Roles

Osgoode Hall Intensive Trial Advocacy

Professional Development Program (Litigation Department)

Organizer and Instructor, Expert Witness Workshop (2004, 2006, 2008, 2011)

Prior Speaking Engagements

Co-chair and speaker, FMC – TD Waterhouse Joint Class Action Seminar, April 3, 2012

Speaker, "Estate Mediation and the Family Business", ADRIC 2011: Break-through Strategies, Critical Insights for Achieving Peak Performance in ADR, Vancouver, October 27-28, 2011

Speaker, "Year in Review: Ontario Class Actions 2010-2011", The Canadian Institute's 12th Annual National Forum on Class Actions Litigation, Toronto, September 21-22, 2011

Panelist, "Cross Canada Class Actions Round-Up: Certification Statistics, New Areas of Litigation, Key Legislative and Case Law Developments", The Canadian Institute's 12th Annual National Forum on Class Actions Litigation, Toronto, September 21-22, 2011

Co-chair and speaker, "Alternative Dispute Resolution and Proportionality", Canadian Bar Association Canadian Legal Conference & Expo, Halifax, August 14-16, 2011

Speaker, "Proxy Fights", 10 Things You Need to Know About Confidentiality Agreements, Toronto, June 14, 2011

Speaker, Canadian Corporate Counsel Association 2011 National Spring Conference, Toronto, April 3-5, 2011

Speaker, "ADR - Perceptions and Realities", FMC Breakfast Seminar, February 10, 2011

Speaker, "Proxy Fights in Canada: Activism North of the Border", The Activist Investor Conference, New York, January 27, 2011

Speaker, 11th Annual Forum on Class Actions Litigation, Toronto, Ontario, September 28, 2010

Co-host of a workshop dealing with the ways and means that employers can effectively integrate skilled immigrants into their workforce, ALLIES Learning Exchange Conference, Halifax, NS, May 6-7, 2010

Speaker, "Facilitating Settlement: The Use of Settlement Counsel and Risk Analysis", Webcast, Canadian Bar Association Online Continuing Legal Education Program, January 26, 2010

Speaker, “Auditing the Auditors - The Role of the IFA in Auditors’ Liability Cases”, CICA/IFA 2009 Investigative and Forensic Accounting Conference, Toronto, September 14, 2009

Speaker, “Investing in Compliance - When the Regulators Come Knocking Will You Be Ready?” A Seminar relating to OSC and IIROC compliance matters, Co-presented by FMC and Deloitte and Touche LLP, May 26, 2009

Speaker, “Letters Rogatory - Essential Strategies", Insight 4th Annual Commercial and Civil Litigation Series, June 13, 2007

Panelist, Professional Roundtable re: Discussion of Networking and Business Development Strategies for Accountants and Lawyers at the Second Annual Commercial Litigation Seminar, A LexisNexis Seminar Series, February 4, 2005