DIRECT LINE: 403.303.9107
Insurance & Risk Management
Public Fatality Inquiries
Insurance & Risk Management
LAW SCHOOL: University of Alberta
BAR ADMISSIONS: Alberta (1989), Yukon (1992)
Don is a Q.C. practicing at McLennan Ross since 1988 as a member of the Commercial Litigation, Construction, Insurance and Professional Liability Practice Groups. He is Chair of the Calgary Commercial Litigation Practice Group and has been a member of The Law Society of Yukon since 1992.
Don has extensive court experience as counsel in over 30 Queen’s Bench trials and innumerable court applications. In mediations and arbitrations, he has attended the Harvard University Mediation Workshop and participated in dozens of mediations, judicial dispute resolutions and arbitrations, including arbitrations under the International Commercial Arbitration and Conciliation (UNICTRAL) Rules.
Don has appeared in all levels of court in Alberta, the Supreme Court of Yukon, the British Columbia Supreme Court, the Saskatchewan Court of Queen’s Bench and Federal Court. He has appeared before various boards and administrative tribunals including The Chartered Professional Accountants of Alberta and has appeared as counsel for interested parties in Public Fatality Inquiries.
Awards and Recognition:
Professional Associations, Affiliations and Community Activities:
Don has acted as counsel in complex and challenging commercial litigation cases. His breadth of experience includes contractual disputes, oil and gas law, breaches of fiduciary duty and corporate leasing issues.
In construction litigation, he has acted for general contractors, sub-contractors, consultants, engineers and owners in relation to construction claims over a wide variety of areas including delay claims, negligent construction, leaky condo construction, excavation issues, welding claims and builders’ lien actions.
O'Mhaoinigh v United Safety International Ltd, 2020 ABQB 672
Don is representing a former employee of an international corporation who was held in custody in the Democratic Republic of Congo for a number of months. The action is in wrongful dismissal and claims over $18 million in damages.
December 4, 2017
Was successful in a Commercial Arbitration defeating the claim of a former consultant to require the corporation to purchase his shares.
Clarke v Canyon Plumbing and Heating Ltd, 2015 ABQB 737
Don successfully represented the Defendant in a proceeding before the Alberta Court of Queen's Bench regarding an application for a summary dismissal of a third party claim brought by a Defendant subcontractor against a town.
Keess v Dueck et.al.
Was successful in an application to strike a Statement of Claim on the basis that it did not disclose a reasonable cause of action.
Truehope Inc v Stringam, 2014 ABQB 386
Don successfully represented the Plaintiff in a proceeding before the Alberta Court of Queen's Bench regarding breach of marketing and distribution agreement.
HRSDC v TCT , C.L.A.D. 196
Successfully represented a number of former directors who had been issued Payment Orders for unpaid holiday pay of a bankrupt corporation (Wage Recovery Appeal was granted by the Referee).
Global Television v Alberta, 2013 ABPC 342
Acted for a national media outlet in addressing a Production Order that had been issued against the client with respect to an ongoing murder investigation.
WestJet v ELS Marketing Inc., 2016 ABQB 172; 2014 ABCA 299; 2014 ABCA 298; 2013 ABQB 666
Judgment was issued in favour of the Plaintiff WestJet in excess of $2 million after a Summary Trial resulting from a breach of contract relating to an outsourced cargo company’s contract with an international airline. The Judge found that the airline proved its claim for damages and the Defendant failed to prove its counterclaim. This decision was upheld by the Alberta Court of Appeal. Leave to appeal to the Supreme Court of Canada was refused. The Alberta Court of Queen's Bench Case Management Judge subsequently ordered security for Judgment before the Defendant was entitled to proceed with its Counter-claim.
Condominium Corp No. 1122235 v Surbey, 2013 ABQB 722
Acted for a number of Defendants in a Class Proceeding (class action) where the representative Plaintiff purported to bring an action on behalf of all owners of a 500 unit condominium complex in Fort McMurray. The Judge found that the Class Proceedings as proposed were fundamentally flawed and failed to grant certification.
Marathon Canada Ltd. v Enron Canada Corp., 2009 ABCA 31; 2008 ABCA 424; 2008 ABQB 770; 2008 ABQB 408; 2007 ABCA 27; 2006 ABQB 691; 2006
Represented Marathon Canada in a $93 million action brought by the Canadian subsidiary of Enron. Enron alleged that Marathon breached its Master Agreement by terminating a forward gas contract and failing to continue to supply natural gas. Issues before the court included unjust enrichment, the duty of good faith in contract, junk science and industry custom and practice. After three and a half months of trial, it was found that a Material Adverse Charge had occurred which entitled Marathon to give notice of termination and Enron's claim was dismissed. The Court of Appeal concurred and Enron’s leave to appeal application to the Supreme Court of Canada was denied.
Petro-Canada v Transocean
Successfully represented Transocean, the world's largest owner of offshore drilling rigs, in a dispute with Petro-Canada. The issues involved the interpretation of a contract and the valuation of the day rates of a drilling rig working on Newfoundland's Grand Banks. Our client's dispute was heard before a three-member panel of arbitrators under the United Nations Conventions for Arbitrations (UNICTRAL). Witnesses gave evidence from Calgary, Houston, St John's Newfoundland, Iraq and Norway.
CCS v Secure Energy Services, 2009 ABQB 275
Acted as Independent Supervising Solicitors for the execution of an Anton Piller Order in relation to a start-up oil and gas services company. The Order was executed in four different locations and dozens of computer hard drives were imaged and catalogued.
Calcrude Oils Limited v Langevin Resources, 2003 ABQB 1051
Acted as counsel to the a number of working interest owners who brought action against a number of Defendants under a Farmout Agreement for failure to provide Right of First Refusal (ROFR) Notices in relation to a gas well in Southern Alberta. The matter was concluded at trial.
Canada Safeway v Shineton, 2007 ABQB 773
The Plaintiff grocery store brought a Judicial Review of the decision of the Information and Privacy Commissioner of Alberta in relation to an alleged breach of privacy of an individual accused of shoplifting.
Other Reported Decisions
Oil and Gas:
Commercial and Construction:
In Don’s insurance practice, he represents a wide range of national and international insurers in relation to all forms of insurance related litigation. Don’s insurance defence experience includes coverage opinions, directors and officers claims, serious bodily injury claims and construction and fire losses.
Heikkila v Apex Land Corporation, 2016 ABCA 126; 2014 ABQB 589
Was successful in having zero liability found against his client in a multi-million dollar appeal brought by an injured worker against the developer of a large loft construction project. The Plaintiff claimed in an action under the Occupier’s Liability Act notwithstanding that the Plaintiff was covered by WCB. The Plaintiff appealed a decision from ABQB in 2014. The finding of the Trial Judge was upheld by the Alberta Court of Appeal.
Enbridge v Chartis, 2014 CarswellAlta 1030
Represented an international insurer with respect to an application to stay an action bought by an insured on a Bermuda insurance policy as the policy contained a mandatory arbitration clause. The Court granted the stay and directed that the London Arbitration Panel determine whether it has jurisdiction.
Blicharz v Livingstone, 2019 ABCA 42; 2016 ABCA 157; 2014 ABQB 373
Lead counsel for the Defendants in a four-week trial in Lethbridge. The Plaintiff was claiming over a $1 million for injuries resulting from five relatively minor car crashes. The Court did not accept the evidence of the Plaintiff and he completely dismissed any claim for damages for three of the five accidents, awarding less than $12,000 for the remaining two accidents. The Alberta Court of Appeal upheld the decision of the Trial Judge.
Represented an Insurer in a Summary Trial defending a claim brought by a daughter of an Insured pursuant to an SEF 44 endorsement. The issue addressed by the Court was whether the daughter had been principally dependent on her mother for financial support. Don was successful in defeating the claim of the Plaintiff and the SEF Insurer was not obliged to respond to the claim.
Represented the insurer of a pipeline contractor that constructed a 3 km sour gas pipeline in Central Alberta. After a few months of operation the pipeline failed and an action was brought against the contractor and others for negligently insulating the pipeline welds on site. The contractor added the engineer to the action alleging that the design of the pipeline did not take into consideration the extreme operating temperatures and the resulting expansion of the pipeline. The matter was successfully concluded by way of private mediation prior to trial.
Oilfield Facilities Construction
Represented an oilfield facilities contractor that constructed a gas plant in the wilderness in North Eastern British Columbia. As a result of the method of construction, there were geological changes and the land shifted causing resulting damage to adjoining lands and pipelines. After taking into consideration issues relating to economic loss the matter was settled without any actions being filed.
After the mast on a drilling rig collapsed, Don defended the Engineer who designed that mast and a number of similar masts against claims brought by the working interest owner of the lands and the drilling contractor. The matter was settled after the exchange of various reports and prior to mediation or trial.
Represents the insurer of a landowner who was sued by a neighbouring downstream landowner for excess erosion to the Plaintiff’s land as a result of our client protecting the riverbank from erosion. The matter is ongoing.
Successfully defended a private mortgage broker in an action brought by disgruntled investors. The matter involved alleged misrepresentations concerning farmland is southern Saskatchewan that had been severely devalued following the downturn in the economy.
Other Reported Decisions:
Don advises on all forms of professional malpractice litigation for engineers, architects, accountants, mortgage and life insurance brokers, lawyers and pharmacists. He represents a number of leading accounting firms in relation to professional liability and related claims including disciplinary tribunal matters.
Don has successfully represented individuals facing disciplinary proceedings before the:
Cooperative Centrale Raiffeisen-Boerenleenbank BA (Rabobank International) v Liebig & Keown LLP, 2015 ABQB 628, 2016 ABQB 417
Successful in a Summary Judgment Application on behalf of the Defendant accounting firm on the basis that the accounting firm was not subject to successor liability resulting from an asset purchase of another firm. On appeal to the Queen's Bench, Sullivan J. upheld the Summary Judgment in favour of the accounting firm and specifically held that successor liability on an asset sale is not the law in Canada.
Accounting Negligence Case
Represented a multi-national accounting firm in an action involving allegations of negligence and breach of fiduciary duty in their audit of a professional services firm. There were hundreds of thousands of documents produced by both parties and experts were retained to provide opinions on standard of care, contributory negligence and damage calculation.
Represented a professional accountant in proceedings before the Disciplinary Tribunal of the Complaints Inquiry Committee. The allegations were that the accountant reflected the revenues of an acquisition but not the costs of acquisition in the Q3 Financial Statements of a public company. After a two-day hearing the accountant was found to have complied with the Handbook and was completely exonerated.
Represented a national chain of pharmacies with respect to a claim brought bought a customer who allegedly was dispensed the incorrect medication. The matter was resolved prior to Questioning.
Represented an accountant who was facing disciplinary proceedings for his preparation of financial statements in relation to a municipality. The matter was resolved by way of a Sanction Agreement with the governing regulator.
Alleged Negligent Tax Advice
A tax accountant provided advice to his client on a departure tax strategy involving the purchase and subsequent repayment of a significant investment outside of Canada and having the clients relocate to a Mediterranean tax haven. The matter was successfully concluded prior to Questioning.
A Don successfully defended a number of financial advisors in a $24 million failed investment in a coal mine in the United States.
Other reported decisions:
Don regularly appears at Fatality Inquiries, representing individuals and national and multinational corporations.
Public Inquiry into the death of Fong Sue Louis
Represented the insurer of a long-term care facility that was an interested party into the accidental strangling death of a resident.
Public Inquiry into the death of Maddox Yellow Wings
Represented the owner of a hotel following an unfortunate incident that resulted in a drowning death of a minor in a wave pool in Southern Alberta.
Public Inquiry into the death of Verna Eliason
Represented a long-term care facility with respect to the death of a resident after a fall.
Public Inquiry into the death of Irene Raffa
Represented a long-term care facility in a fatality inquiry resulting from an EMS stretcher transfer accident that resulted in a patient/resident’s death. Following the presentation of evidence including a number of experts, the long term care facility was found to have the appropriate systems in place and no further recommendations were made for a change in policy or procedure.
Cassandra Marie-Ange Lavoie
Don represented the residential facility which was providing respite services to the severely disabled Ms. Lavoie who passed away while in their care. The recommendations that were ultimately made related to the Provincial standards as opposed to the conduct of the operator of the facility.
Don has been involved with a number of significant actions involving directors and officers including:
Don has successfully defended clients in a wide range of complex class actions and has had success in defeating class certification. His experience includes:
Lewis v. WestJet Airlines Ltd., 2021 BCSC 228; 2019 BCCA 63; 2017 BCSC 2327
We represented an airline in an uncertified class action brought by a flight attendant with respect to allegations failure to enforce anti-harassment policies. The damages claim was based on disgorgement of profits. Prior to a certification application in a class action, an application was brought to strike the action on the basis that the claim was not properly brought in the British Columbia Supreme Court and ought to have been brought before the Canadian Human Rights Commission and the various Provincial workers’ compensation boards. The application to strike was only partially successful. The certification application was ultimately unsuccessful as the Court found that the plaintiff did not establish that a class proceeding was the preferable procedure for the fair and efficient resolution of the common issues.
A link to The Globe and Mail where Don was quoted with respect to this matter can be found here.
Don acted for a police service against an application was brought to add the police service as a defendant to a class action with respect to arrested persons not being given an opportunity to speak to judicial interim release (bail) within 24 hours. The Court declined to add the police service to the action.
Payment of Overtime
Don is defending an international corporation being sued for $120 million for non-payment of overtime. The action has not yet been certified.
Don is defending an American based food processing corporation in an action brought on behalf of privies of employees against their employer for allowing the virus to be spread in the workplace and passed onto the community. The action has not yet been certified.
Don is defending a class action brought on behalf of deceased and infected residents of a long-term care facility in Calgary. The action has not yet been certified.
Don is also defending a further class action case brought on behalf of deceased and infected residents of all long-term care facilities in a Western Canada based long term care corporation. The class action has not yet been certified.
Don is defending a Canadian cannabis producer in a $500 million claim for mislabeling and false advertising of cannabis oil. The action has not yet been certified.
Don hosted a webinar entitled: Class Actions in the COVID Era. A link to the presentation used in the Webinar can be found here.
Tainted Dog Food
Was involved in a class action brought on by pet owners alleging that one of the major distributors of pet foods in Alberta did not have quality controls in place that resulted in the death of household pets from tainted food. This litigation has been resolved by settlement amongst the parties.
Acted for a number of Defendants in a class action where the representative Plaintiff purported to bring an action on behalf of all owners of a 500-unit condominium complex in Fort McMurray. The Judge found that the Class Proceedings as proposed were fundamentally flawed and failed to grant certification.
Acted for an international transportation carrier with respect to an action involving a large travel facilitator and the incorporation of fuel surcharges in the calculation of costs.
Misrepresentation and Deficiencies
Acted for the directors of a corporation that constructed a luxury condominium/hotel/office complex in an action commenced on behalf of the owners of the residential condominiums for misrepresentations and deficiencies.