Benjamin M. Bathgate Partner Toronto Tel : 416.307.4207 Fax : 416.865.7048 Email : ben.bathgate@mcmillan.ca VCard :

Professional Experience

• Represented numerous national banking and retail clients in claims against landlords seeking to enforce restrictive covenants (including injunctive relief), recover operating cost payments and obtain rent abatements;  
• Represented a commercial restaurant tenant in enforcing an oral lease and an oral option to purchase land against a landlord;
• Defended numerous consumer electronics and household products manufacturers, wholesalers, retailers and distributors from breach of contract, occupier liability and product liability claims; 
• Defended a national home appliance manufacturer against numerous personal injury and product liability claims;
• Defended numerous franchisors and distributors from various claims, including claims: seeking rescission remedies for late or allegedly deficient disclosure; alleging failure to disclose material facts; alleging misrepresentations in the disclosure document or in the statement of material change; and for alleging breach of the obligation of fair dealing;
• Represented various foreign banks, national charter banks and a national merchant bank in navigating jurisdiction issues, unraveling complex fraud and enforcing substantial judgments and security in Ontario;
• Defended an internet advertising company and a large international insurer against oppression remedy and employment law claims brought by former managers and executives;

Representative Superior Court and Appellate Court Decisions

• Thorne v. AXA Canada Inc. et. al., (2012) ONSC 2409 (Ont. S.C.J.) - successfully opposed a Divisional Court appeal seeking the right to examine the President and CEO of a large defendant insurer for discovery, upholding the earlier decision substituting a former employee of that insurer as the proper witness.
• Lechuga 1 Ltd. v. Lettuce Eatery Development Inc., (2011) CarswellOnt 8213 (Ont. S.C.J.) – opposed an application brought by three franchisees under the Arthur Wishart Act (Franchise Disclosure) claiming rights of rescission for allegedly deficient disclosure and successfully obtained an order converting the application into an action and a hybrid trial process.
• Sigrist v. McLean, (2011) CarswellOnt 14424 (Ont. S.C.J.) – successfully obtained a trial decision enforcing an oral option to purchase a commercial property under lease and obtained an award of various damages, including punitive damages, for that commercial client.
• Batkov v. Starwood Industries Global Corp., (2010) CarswellOnt 10090 (Ont. S.C.J. Div. Crt.) – successfully opposed a Divisional Court appeal and upheld an order granting an administrative dismissal of an action brought against a merchant bank client, upholding a multi-million dollar share purchase transaction.
• Sincies Chiementin S.p.A. (Trustee of) v. King (2010) CarswellOnt 8996 (Ont. S.C.J.) – defended an action and a summary judgment motion seeking to enforce a foreign judgment in Ontario on grounds of jurisdiction, natural justice and public policy.
• R.S.W.H. Vegetable Farmers Inc. and 1427868 Ontario Ltd. v. Bayerische Landesbank Girozentrale and Ontario Peninsula Farms Ltd., 2010 CanLII 69207 (S.C.C.) – successfully opposed an application for leave to appeal to the Supreme Court of Canada with respect to a proceeding under the Farm Debt Mediation Act, which sought to render null and void the enforcement of a registered charge.
• Strassle Informationssysteme Holding GmbH (Trustee of) v. Sieber, (2010) ONCA 604 (CanLII) (Ont. C.A.) – successfully defended a challenge to an Ontario Judgment enforcing a foreign banking client's award in Europe, and successfully opposed the subsequent appeal in the Court of Appeal for Ontario.
• Bayerische Landesbank Gironzentrale v. Sieber, 2008 CanLII 28753 (ON S.C.) – successfully set aside an earlier dismissal of a complex fraudulent conveyance claim.

Winter 2011 Franchisors Beware of Deficient Disclosure InBrief Winter 2011

Fall 2010 Franchisors Beware: Deficient Disclosure Can Result in No Disclosure At All Commercial Litigation Brief Fall 2010

Fall 2009 Claiming Your Customers' Damages as Your Own InBrief Fall 2009

Summer 2008 Legislating the Role of Apologies in Litigation Commercial Litigation Brief Spring 2008