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Mark Gelowitz

Mark Gelowitz

Partner, Litigation

Co-Chair: Corporate and Securities Litigation

Key Contact: Commercial Arbitration and ADR

Contact Information

mgelowitz@osler.com

tel: 416.862.4743

Office

Toronto

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Areas of Expertise
Bar Admission

Ontario, 1991

Saskatchewan, 1987

Education
  • Oxford University, B.C.L.
  • Queen’s University, LL.B.
  • University of Regina, B.A.
Language(s)
English

Mark is the Co-Chair of the firm’s Corporate and Securities Litigation Group. Mark has a business-focused civil and securities litigation, appellate and international commercial arbitration practice. His practice covers a wide variety of issues in corporate and commercial law including mergers and acquisitions litigation, director and officer liability, corporate governance, shareholder disputes, oppression, privacy, libel and slander, real estate lease disputes, product liability, mining litigation and class actions. He has appeared before the Supreme Court of Canada, the Ontario, Alberta, British Columbia and Yukon Courts of Appeal, the superior trial courts of numerous provinces and the Ontario and British Columbia Securities Commissions. Mark’s international commercial arbitration experience includes major arbitration hearings conducted in London, Rome, Geneva and Warsaw. Mark completed two appellate judicial clerkships, the first with the late Chief Justice E.D. Bayda of the Saskatchewan Court of Appeal in 1986 and the second with the late Justice John Sopinka of the Supreme Court of Canada in 1989. He completed the B.C.L. degree at Oxford University in 1989, between his clerking experiences. Mark has had many important legal publications including a leading Canadian legal text for the last quarter-century, co-authored with the late Justice Sopinka entitled Sopinka and Gelowitz on the Conduct of an Appeal, Fourth Edition (Lexis/Nexis 2018). Mark maintains a blog on recent developments in Canadian appellate law and practice at Conductofanappeal.com.

    • 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), including an appeal to the Supreme Court of Canada.
    • Lead partner representing Dundee Kilmer Developments Limited Partnership, Dundee Realty Corporation and related companies in a high-stakes dispute with Catalyst.
    • Shoppers Drug Mart Inc. in its current defence of a franchise class action brought by two of its Associate-owners representing all Associates in Shoppers Drug Mart stores outside of Quebec (ongoing).
    • Representing a European subsidiary of a Canadian mining company in an investor-state arbitration against a member state of the European Union, alleging discriminatory treatment under the terms of a bilateral investment treaty (ongoing).
    • Kinross Gold Corporation and a number of its officers and directors in the successful defence of a proposed securities class action making various claims in respect of Kinross’s disclosure concerning its Tasiast mine (2014).
    • Represented a Canadian public company in an International Chamber of Commerce (ICC) arbitration in Geneva, in a successful claim against a European company relating to the force majeure clause of a long-term supply agreement (2014).
    • 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).
    • 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).

Chambers

  • Chambers Canada: Canada’s Leading Lawyers for Business, 2017-2019, Litigation: General and Commercial (Ontario).

Lexpert

  • The Canadian Legal Lexpert Directory, 2018, Repeatedly Recommended, Class Actions.
  • The Canadian Legal Lexpert Directory, 2018, Repeatedly Recommended, Commercial Arbitration.
  • The Canadian Legal Lexpert Directory, 2014-2018, Repeatedly Recommended, Litigation – Directors’ & Officers’ Liability.
  • The Canadian Legal Lexpert Directory, 2014-2018, Most Frequently Recommended, Litigation – Corporate Commercial.
  • The Canadian Legal Lexpert Directory, 2017-2018, Most Frequently Recommended, Litigation - Securities.
  • The Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada, 2014-2018, Most Frequently Recommended, Litigation - Corporate Commercial.
  • The Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada, 2014-2018, Most Frequently Recommended, Litigation - Securities.
  • The Lexpert Guide to the Leading US/Canada Cross-border Litigation Lawyers in Canada, 2017, Class Actions, Litigation (Securities) and Litigation (Corporate Commercial).
  • The Lexpert Guide to the Leading US/Canada Cross-border Litigation Lawyers in Canada, 2013, Corporate Commercial, Securities
  • Lexpert Special Edition: Canada’s Leading Litigation Lawyers, 2013.

Benchmark

  • Benchmark Litigation Canada, 2015-2018, "Litigation Star", Class Action; General Commercial; Securities.

Best Lawyers

  • The Best Lawyers in Canada, 2014-2019, Corporate and Commercial Litigation.
  • The Best Lawyers in Canada, 2016-2019, Securities Law.

Acritas Stars

  • Acritas Stars, 2018, Star Lawyer.

  • Advocates' Society
  • Ontario Bar Association
  • Metropolitan Toronto Lawyers' Association

  • Hopkins v. Kay: Ontario Court of Appeal Considers Order Conclusively Determining Superior Court’s Jurisdiction to be Final, DRI Medical Liability and Health Care Law Digest (August 2014)
  • Zurich Insurance Company v. Chubb Insurance Company of Canada: Ontario Court of Appeal Considers Standard of Review of Arbitration Decisions, Canadian Journal of Insurance Law, July 2014, Volume 32, No. 4
  • The Conduct of an Appeal, 3rd Ed., Sopinka and Gelowitz, Lexis/Nexis, 2012
  • Baffinland: A new frontier for poison pills?, Lawyers Weekly (February 2011)
  • Supreme Court Sounds the Death Knell for Fundamental Breach (2011), 26 Banking & Finance Law Review 339
  • Recent Developments in Securities Litigation – Archibald & Echlin, Annual Review of Civil Litigation (Carswell 2010)
  • Court certifies class action against Imax: Liability may be coming soon to a theatre near you, Lawyers Weekly (February 2010)
  • OSC Hudbay Decision May Profoundly Impact M&A Landscape, Osler Update, June 11, 2009
  • Certicom v. RIM: When is a Confidentiality Agreement a Standstill, Too?, Osler Corporate Review, March 2009
  • Supreme Court of Canada Dismisses Appeal in Danier Leather, Osler Update, October 16, 2007
  • Recent Developments in Class Proceedings: A Defendant’s Perspective (2006), 43 Canadian Business Law Journal 339