Benjamin M. Bathgate 

Co-Chair, Fraud Law
Co-Chair, White Collar Defence and Government Investigations
Toronto  t: 416.307.4207  |  e: ben.bathgate@mcmillan.ca

Benjamin M. Bathgate

Toronto
Brookfield Place, Suite 4400
181 Bay Street
Toronto, Ontario M5J 2T3

t: 416.307.4207
e: ben.bathgate@mcmillan.ca

aperçu

Ben is a partner in the firm's Litigation and Dispute Resolution Group, and Co-Chair of the Fraud Law Group and the White Collar Defence and Government Investigations Group (ranked by Chambers Canada). His practice is focused on complex corporate and commercial litigation in the retail, manufacturing and the banking and financial services industries. Ben has expertise in several specialized areas of litigation, including commercial fraud, professional liability (D&O claims)commercial real estate and franchise disputes.

Ben is a co-editor and co-author of "The Essential Guide to Settlement in Canada" (published in 2013 by LexisNexis Butterworths Canada), a valuable practice manual designed for in-house counsel focused exclusively on the topic of settlement in Canada, which has been cited as an authoritative text by the Courts. Ben has presented extensively on this topic and regularly advises clients on settlement strategy, early case assessment and risk management. He is a co-lead of the firm’s Crisis Response Service and the Commercial Litigation Presentation Series.

Ben has built a diverse client base including both foreign and domestic companies. His clients include retailers, consumer products manufacturers and distributors, franchisors, consulates, embassies, insurance companies, telecommunications companies and banking and financial services institutions.

Ben has successfully represented clients at all levels of court in Canada, including the Court of Appeal for Ontario and the Supreme Court of Canada. Ben has also appeared as counsel in arbitrations and before various Boards and Tribunals.

Ben has been interviewed on changes in securities regulations and his writing on what is now Ontario's Apology Act has been considered in the Ontario Legislature and in legislative committees.

Representative Matters

  • Represented several former officers of Sino-Forest Corporation before the Ontario Securities Commission in one of Canada's largest ever securities fraud proceedings, spanning 180 hearing days and relating to $3 billion in Canadian-raised capital; 
  • Prosecuted and proceeded to trial on a complex 12-year, multi-transfer fraudulent conveyance action on behalf of a European banking client;
  • Represented a large merchant bank in prosecuting a $30 million set of claims for fraud and conspiracy arising from a failed international wood processing joint venture;
  • Defended a seller from $75 million in breach of representation and fraud claims arising from a $700 million share sale of an aerospace manufacturing company;
  • Defended a land development company and its officers from $15 million in claims of fraud and oppression;
  • Represented an international telecommunications company in defending a misleading advertising claim, which involved questions on the sufficiency of disclaimer language used on scrolling Internet pages;
  • Represented an international insurer against a $20 million claim in a failed merger transaction;
  • Represented a commercial restaurant tenant in obtaining a precedent-setting trial decision enforcing an oral lease and an oral option to purchase land against a landlord; 
  • 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 numerous landlords and commercial tenants in real estate and leasing disputes (including trials), involving remedies of specific performance, injunctive relief, damages, distress, bailment and relief from forfeiture;
  • Defended numerous consumer electronics and household products manufacturers, wholesalers, retailers and distributors from breach of contract, occupier liability 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;
  • 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

  • Noranco v MidOcean Partners III, (2019) ONSC 1173 (Ont. S.C.J.) — successfully obtained an indemnification order for the advance payment of a defendant officer’s legal expenses, within a broader fraud proceeding.     
  • Ewert v Denso Corporation, (2017) BCSC 973 (BCSC) — defence counsel in settlement approval hearings for a national auto parts class action.
  • Bell Canada v. Cogeco Cable Canada, (2016) ONSC 6044 (Ont. S.C.J.) – defended interlocutory and permanent injunctions on allegedly misleading advertising statements for a telecommunications client, and dealt with questions on the sufficiency of disclaimer language within Internet advertisements.
  • Bayerische Landesbank Girozentrale v. Rosen Ridge Farms Ltd., et. al., (2015) ONSC 27 (Ont. S.C.J.) – successfully obtained a trial decision in a complex fraudulent conveyance action, overturning a sham trust agreement and unwinding a series of real property transfers.
  • Rehman International Ltd. v. Royal Bank of Canada, (2013) CarswellOnt 9203 (Ont. S.C.J.) – successfully opposed an action seeking to realize upon fraudulent instruments, and succeeded in prosecuting the bank's counterclaim at trial and in piercing the corporate veil.
  • 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.
  • 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.
  • Sigrist v. McLean, (2011) CarswellOnt 14424 (Ont. S.C.J.) – successfully obtained a trial decision enforcing an oral lease and an oral option to purchase a commercial property, overturning an illegal distress and obtaining an award of damages, including punitive damages.
  • 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 a $15 million action brought against a banking 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 bank 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.

Presentations

Unique Perspectives and Opportunities for "Big Data" - Predictive Analytics Program
Matter Management Platform and e-discovery Tools
Effective Crisis Response: A multi-disciplinary perspective
Fraudulent Preferences and Conveyances: From Detection to Judicial Remedies
Commercial Lease Remedies in Canada
Managing your work and your time as a litigator
Commercial Lease Remedies 101
Associate Career Development Planning
Should it Stay or Should it Go? Document Management and Litigation Holds
An Overview of Franchise Law in Ontario:
A Litigator Perspective
Franchise Law 101
Lease and Purchase Agreement Remedies
Making Settlements Stick: A Guide to Settlement
Common Pitfalls in Settling Disputes: The Top-Ten List
Negotiation Skills Seminar
Costs / Orders / Judgments / Enforcements
Recent Developments in Franchising and Distribution Law
Recent Developments in Franchising and Distribution Law

Publications

Anti-Corruption 2019 Guide
Guide to Tracing Assets Around the World 2018
What's in a Name? When Profit Sharing "Insurance" is not Insurance under the Insurance Act
The Perils of Ignoring Faulty Offers to Settle: Expanded Discretion under Rule 49
The Essential Guide to Settlement in Canada
The Essential Guide to Settlement in Canada
Franchisors Beware of Deficient Disclosure
Franchisors Beware: Deficient Disclosure Can Result in No Disclosure At All
Claiming Your Customers' Damages as Your Own
Legislating the Role of Apologies in Litigation
Law Note - Solicitor-Client Privilege: Down the Slippery Slope?
Better Safe Than Sorry? The Role of Apologies in Litigation

News

Des avocat.e.s de McMillan obtiennent 37 classements dans 13 catégories dans l'édition 2021 du guide The Legal 500 pour le Canada
Des avocat.e.s de McMillan obtiennent 37 classements dans 13 catégories dans l'édition 2021 du guide The Legal 500 pour le Canada
22 avocats de McMillan figurent au répertoire The Legal 500 – Canada de 2020
60 avocats de McMillan cités dans le répertoire The Canadian Legal Lexpert Directory de 2019
Chambers Anti-Corruption 2019 Guide: Canada
Benjamin Bathgate commente la décision de la CVMO dans l'affaire Finkelstein c. Azeff dans le Canadian Lawyer
Interview with Advisor's Edge commenting on Ontario Securities Commission's study on fixed income markets
Des avocats de McMillan publient The Essential Guide to Settlement in Canada

Education

  • Dalhousie University, LLB - 2004
  • University of Toronto, BA (Hons.) - 2001

Year Of Call

  • Barreau de l'Ontario - 2005

Practices

droit de la fraude
litige
différends en matière de franchisage et de contrats de distribution
litiges en droit des affaires
location immobilière
plaidoirie en appel
arbitrage
responsabilité des commerçants
diffamation

Industries

banques, finances et assurances
industries manufacturières, distribution et commerce du détail
franchisage et distribution
commerce de détail
immobilier commercial

Directorships and Professional Associations

  • Ontario Bar Association, The Franchise Law Section
  • Canadian Franchise Association
  • International Franchise Association
  • The American Chamber of Commerce in Canada
  • Advocates' Society

Awards & Rankings

  • Recognized in the 2019 Canadian Legal Lexpert Directory as a Leading Lawyer to Watch in the area of Litigation – Corporate Commercial

Media Mentions

vcard

Ben is a partner in the firm's Litigation and Dispute Resolution Group, and Co-Chair of the Fraud Law Group and the White Collar Defence and Government Investigations Group (ranked by Chambers Canada). His practice is focused on complex corporate and commercial litigation in the retail, manufacturing and the banking and financial services industries. Ben has expertise in several specialized areas of litigation, including commercial fraud, professional liability (D&O claims)commercial real estate and franchise disputes.

Ben is a co-editor and co-author of "The Essential Guide to Settlement in Canada" (published in 2013 by LexisNexis Butterworths Canada), a valuable practice manual designed for in-house counsel focused exclusively on the topic of settlement in Canada, which has been cited as an authoritative text by the Courts. Ben has presented extensively on this topic and regularly advises clients on settlement strategy, early case assessment and risk management. He is a co-lead of the firm’s Crisis Response Service and the Commercial Litigation Presentation Series.

Ben has built a diverse client base including both foreign and domestic companies. His clients include retailers, consumer products manufacturers and distributors, franchisors, consulates, embassies, insurance companies, telecommunications companies and banking and financial services institutions.

Ben has successfully represented clients at all levels of court in Canada, including the Court of Appeal for Ontario and the Supreme Court of Canada. Ben has also appeared as counsel in arbitrations and before various Boards and Tribunals.

Ben has been interviewed on changes in securities regulations and his writing on what is now Ontario's Apology Act has been considered in the Ontario Legislature and in legislative committees.

  • Represented several former officers of Sino-Forest Corporation before the Ontario Securities Commission in one of Canada's largest ever securities fraud proceedings, spanning 180 hearing days and relating to $3 billion in Canadian-raised capital; 
  • Prosecuted and proceeded to trial on a complex 12-year, multi-transfer fraudulent conveyance action on behalf of a European banking client;
  • Represented a large merchant bank in prosecuting a $30 million set of claims for fraud and conspiracy arising from a failed international wood processing joint venture;
  • Defended a seller from $75 million in breach of representation and fraud claims arising from a $700 million share sale of an aerospace manufacturing company;
  • Defended a land development company and its officers from $15 million in claims of fraud and oppression;
  • Represented an international telecommunications company in defending a misleading advertising claim, which involved questions on the sufficiency of disclaimer language used on scrolling Internet pages;
  • Represented an international insurer against a $20 million claim in a failed merger transaction;
  • Represented a commercial restaurant tenant in obtaining a precedent-setting trial decision enforcing an oral lease and an oral option to purchase land against a landlord; 
  • 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 numerous landlords and commercial tenants in real estate and leasing disputes (including trials), involving remedies of specific performance, injunctive relief, damages, distress, bailment and relief from forfeiture;
  • Defended numerous consumer electronics and household products manufacturers, wholesalers, retailers and distributors from breach of contract, occupier liability 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;
  • 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

  • Noranco v MidOcean Partners III, (2019) ONSC 1173 (Ont. S.C.J.) — successfully obtained an indemnification order for the advance payment of a defendant officer’s legal expenses, within a broader fraud proceeding.     
  • Ewert v Denso Corporation, (2017) BCSC 973 (BCSC) — defence counsel in settlement approval hearings for a national auto parts class action.
  • Bell Canada v. Cogeco Cable Canada, (2016) ONSC 6044 (Ont. S.C.J.) – defended interlocutory and permanent injunctions on allegedly misleading advertising statements for a telecommunications client, and dealt with questions on the sufficiency of disclaimer language within Internet advertisements.
  • Bayerische Landesbank Girozentrale v. Rosen Ridge Farms Ltd., et. al., (2015) ONSC 27 (Ont. S.C.J.) – successfully obtained a trial decision in a complex fraudulent conveyance action, overturning a sham trust agreement and unwinding a series of real property transfers.
  • Rehman International Ltd. v. Royal Bank of Canada, (2013) CarswellOnt 9203 (Ont. S.C.J.) – successfully opposed an action seeking to realize upon fraudulent instruments, and succeeded in prosecuting the bank's counterclaim at trial and in piercing the corporate veil.
  • 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.
  • 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.
  • Sigrist v. McLean, (2011) CarswellOnt 14424 (Ont. S.C.J.) – successfully obtained a trial decision enforcing an oral lease and an oral option to purchase a commercial property, overturning an illegal distress and obtaining an award of damages, including punitive damages.
  • 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 a $15 million action brought against a banking 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 bank 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.
Décembre 2019
Anti-Corruption 2019 Second Edition (Canada Chapter)
(seulement disponible en anglais)

Chambers and Partners

Décembre 2018
Anti-Corruption 2019 Guide(seulement disponible en anglais)

Chambers and Partners

Mai 2018
Guide to Tracing Assets Around the World 2018
(seulement disponible en anglais)

TerraLex

Juin 2017
What's in a Name? When Profit Sharing "Insurance" is not Insurance under the Insurance Act(seulement disponible en anglais)

Litigation Bulletin

Mars 2015
The Perils of Ignoring Faulty Offers to Settle: Expanded Discretion under Rule 49(seulement disponible en anglais)
Litigation Bulletin
Décembre 2013
The Essential Guide to Settlement in Canada(seulement disponible en anglais)
LexisNexis Canada
Hiver 2013
The Essential Guide to Settlement in Canada
(seulement disponible en anglais)
Co-editor and Co-author, Published by LexisNexis Butterworths Canada
Hiver 2011
Franchisors Beware of Deficient Disclosure(seulement disponible en anglais)

Litigation Bulletin

Automne 2010
Franchisors Beware: Deficient Disclosure Can Result in No Disclosure At All(seulement disponible en anglais)

Litigation Bulletin

Automne 2009
Claiming Your Customers' Damages as Your Own(seulement disponible en anglais)
Litigation Bulletin
Eté 2008
Legislating the Role of Apologies in Litigation(seulement disponible en anglais)
Litigation Bulletin
Printemps 2008
Law Note - Solicitor-Client Privilege: Down the Slippery Slope?(seulement disponible en anglais)
Litigation Bulletin
Printemps 2008
Better Safe Than Sorry? The Role of Apologies in Litigation(seulement disponible en anglais)
Litigation Bulletin
4 Avril 2018
Unique Perspectives and Opportunities for "Big Data" - Predictive Analytics Program
(seulement disponible en anglais)
TerraLex Webinar
21 Novembre 2017
Matter Management Platform and e-discovery Tools
(seulement disponible en anglais)
Client Presentation
5 Octobre 2017
Effective Crisis Response: A multi-disciplinary perspective
(seulement disponible en anglais)
Association of Corporate Counsel
2 Mai 2017
Fraudulent Preferences and Conveyances: From Detection to Judicial Remedies
(seulement disponible en anglais)
ACFI Annual Fraud Conference, Toronto, Ontario
25 Janvier 2016
Commercial Lease Remedies in Canada
(seulement disponible en anglais)
Client presentation
Novembre 2015
Managing your work and your time as a litigator
(seulement disponible en anglais)
McMillan junior associate training
Septembre 2015
Commercial Lease Remedies 101
(seulement disponible en anglais)
McMillan Corporate Counsel Presentation
Mai 2014
Associate Career Development Planning
(seulement disponible en anglais)
McMillan in-house presentation
Mars 2014
Should it Stay or Should it Go? Document Management and Litigation Holds
(seulement disponible en anglais)
Client presentation
Mars 2014
An Overview of Franchise Law in Ontario:
A Litigator Perspective
(seulement disponible en anglais)
Ontario Bar Association - Ontario/New York Legal Summit
Février 2014
Franchise Law 101
(seulement disponible en anglais)
Client presentation
Octobre 2013
Lease and Purchase Agreement Remedies
(seulement disponible en anglais)
Real estate associate educational session
Automne 2013
Making Settlements Stick: A Guide to Settlement (seulement disponible en anglais)
McMillan Corporate Counsel CPD Series and various in-house client presentations
Automne 2013
Common Pitfalls in Settling Disputes: The Top-Ten List
(seulement disponible en anglais)
Various in-house client presentations
Eté 2013
Negotiation Skills Seminar
(seulement disponible en anglais)
Various in-house client presentations
Avril 2013
Costs / Orders / Judgments / Enforcements
(seulement disponible en anglais)
McMillan junior associate advocacy training
Janvier 2013
Recent Developments in Franchising and Distribution Law
(seulement disponible en anglais)
McMillan in-house presentation
Automne 2012
Recent Developments in Franchising and Distribution Law(seulement disponible en anglais)
McMillan Corporate Counsel CPD Series