Mark Gelowitz, Partner, Litigation

Notable Matters

• Facebook, Inc. in its defence of proposed securities class actions in Ontario, Saskatchewan and Quebec arising from Facebook’s initial public offering (IPO) in the United States, and a proposed privacy class action in British Columbia concerning Facebook’s sponsored stories (ongoing).
• Kinross Gold Corporation and a number of its officers and directors in a proposed securities class action making various claims in respect of Kinross’s disclosure concerning its Tasiast mine (ongoing).
• Goldcorp Inc. in its successful defence of a claim brought by Barrick Gold Corporation against Goldcorp, Xstrata Chile and New Gold in respect of Goldcorp’s acquisition of a 70% interest in the El Morro mining project in Chile (2012).
• Shoppers Drug Mart Inc. in its current defence of a proposed franchise class action brought by two of its Associate-owners seeking to represent all Associates in Shoppers Drug Mart stores outside of Quebec (ongoing).
• Magna International Inc. in securing court approval of the plan of arrangement for the company’s dual-class share capital reorganization, in the face of concerted opposition from a group of institutional shareholders. The approval granted by the Ontario Superior Court of Justice was confirmed on appeal by the Ontario Divisional Court (2010).
• Icahn Group in its successful application to the British Columbia Securities Commission to cease trade the poison pill implemented by the board of directors of Lions Gate Entertainment Corp. as a defensive tactic against the Icahn Group’s hostile take-over bid for Lions Gate. The expedited appeal by Lions Gate to the British Columbia Court of Appeal, the first-ever Canadian appeal in a poison pill case, was dismissed from the bench (2010). 
• State Farm Mutual Automobile Insurance Company in defeating a motion for certification as a class action of a $200 million claim relating to the use of aftermarket automotive parts in insurance repairs, following appellate proceedings in which the plaintiffs sought to re-open the dismissed certification motion to lead new expert evidence (2009).
• Lundin Mining Corporation in its intervention in the Ontario Securities Commission proceedings arising from the proposed transaction between Lundin and HudBay Minerals Inc. (2009).
• Successfully defended a Canadian public company in an International Chamber of Commerce (ICC) arbitration in Rome, in a claim commenced by a large Italian company in respect of a post-closing issue arising from a shareholders' agreement (2008).
• Ventas, Inc. in its successful application for a declaration that Sunrise REIT was obligated under the purchase agreement between the parties to enforce the standstill terms of Sunrise REIT’s confidentiality agreement with a participant in its prior auction process. The decision of the Ontario Superior Court was upheld by the Court of Appeal for Ontario (2007).
• Glamis Gold Ltd. in defeating the attempt by a shareholder of Goldcorp Inc. to force a vote of the shareholders of Goldcorp to approve the acquisition of Glamis by Goldcorp. The decision of the Ontario Superior Court was upheld by the Ontario Divisional Court (2006).
• Sears Holdings Corporation in proceedings before the Ontario Securities Commission and the Ontario Divisional Court in relation to Sears Holdings’ take-over bid for the shares of Sears Canada Inc. (2006).
• The directors and officers of Bolivar Gold Corp. in successfully defending an oppression claim against them in connection with Bolivar’s plan of arrangement for the purchase of Bolivar by Gold Fields Ltd. The dismissal of the oppression claim by the Supreme Court of the Yukon Territory was upheld by the Yukon Court of Appeal (2006).
• Cara Operations Limited in its successful attack on Second Cup’s poison pill at the Ontario Securities Commission during Cara’s take-over bid for the company (2002).
• Chapters Inc. in all litigation aspects of the hotly contested hostile take-over bid for the company, including proceedings before the OSC and the Ontario Court of Appeal. (2001).