Billington Barristers: News & Recent Cases

July 2010 - Award of Significant Court Costs Enhances Arbitration Clauses, Abuse of Process nets Single and Double Solicitor and Own Client Costs
The Court of Queen’s Bench of Alberta has imposed significant punishment on plaintiffs who proceeded with litigation in court rather than limit their claim to an arbitration process, as required by contract. Billington Barristers, acting for the Defendant obtained a dismissal of the Plaintiffs’ action on the first day of trial. Subsequently, the Plaintiffs were ordered to pay Billington Barristers’ client costs on a “solicitor-and-own-client” basis (that is, to reimburse every dollar of legal fees and disbursements incurred by the Defendant) for all steps in the litigation process, and “double solicitor-and-own-client” costs for every step taken by the Defendant after a formal offer of settlement had been tendered prior to trial.

Mr. Justice D. Miller imposed the rare and harsh costs award in recognition that the Plaintiffs’ action was an abuse of process. The dispute was about whether a house had been properly constructed, and the agreement between the parties specified that any dispute between them was to be resolved by arbitration. The Plaintiffs (the purchasers), brought certain complaints to arbitration, but after the arbitrator issued his decision, they sued the builder. In the decision (Memorandum of Judgment) the Court agreed with the position urged by Richard N. Billington, Q.C. at trial, that even if the Plaintiffs had not raised a complaint in the arbitration proceeding, they were required to have done so, and that it was improper to engage in litigation.

The Court, in a subsequent, companion decision (Costs Memorandum), found that because the Plaintiffs had abused the judicial system, and because they failed to deal with all of their complaints by way of arbitration, the Defendant must recover every dollar of litigation expense. Even more so, the Defendant was to recover double every dollar of litigation expense for all steps taken after the date on which a formal offer to settle was given to the Plaintiffs. The successful Defendant was represented at trial by Richard N. Billington, Q.C. and Monique Morin of Billington Barristers. Said Richard Billington, Q.C. after the judgment:

These decisions provide real strength to arbitration clauses. An agreement to arbitrate is not to be ignored. The award of costs that fully indemnifies the successful party is a rare departure from the usual practice of Canadian courts, which normally only partially indemnifies the successful litigant. An award of double the amount of full indemnification is particularly infrequent. We asked the Court to strongly express its disapproval of the Plaintiffs’ abuse of the judicial process, and it has done so.

June 2010 - Billington Barristers successfully concludes Shareholder Oppression Action and In Camera Investigation
Billington Barristers was retained by a director and shareholder of a private corporation who was concerned that a fellow director/shareholder was misappropriating funds. A deadlock between the only two directors and shareholders would have crippled the business. Billington Barristers developed a strategy to obtain a court ordered independent forensic accounting of the corporation’s affairs, and to do so on an in camera (not on the public record) basis. Simultaneously, we obtained an injunction to remove the suspect director from any authority within the corporation. Although the by-laws of the corporation did not make accommodation for the forced removal of a director/shareholder, the judicial process was utilized to obtain such a remedy. The results of the forensic examination enabled Billington Barristers to develop a mechanism to force the valuation and sale of the other shareholder’s interest. Once that was in place, the parties then participated in a Judicial Dispute Resolution (a court supervised mediation process) which resulted in an agreement to address the misappropriation issue and the sale of the shares of the defendant director and shareholder.

Although conducted under a filed court action, most of the steps in the litigation were kept off of the public record, saving the corporation and both directors from public scrutiny of the internal affairs of the business. Richard Billington, Q.C. stated:

Canadian law permits procedures to safeguard the interests of shareholders and other directly interested parties when there is a suspicion that the affairs of a corporation are being conducted in an oppressive, prejudicial or fraudulent manner. Because the concerns are important yet still unproven, the court will take care to ensure that the true circumstances are discovered, but on an in camera basis so that reputations and business sensitivities are protected until the facts are fully established. The results of this independent forensic process are recognized as prima facie proof of the facts, which allows the court to come to a conclusion about the affairs of the corporation much quicker than in normal commercial litigation.

July 2010 – Ryan P. Pelletier joins Billington Barristers
Richard N. Billington Q.C. announces that Ryan Pelletier has joined Billington Barristers as a Senior Associate. Ryan will be practicing in areas of law including corporate and commercial litigation, construction and real property disputes, employment law, shareholder and investor disputes (including oppression actions and partnership dissolutions). His practice also includes administrative law (including applications for judicial review), and commercial arbitrations. His courtroom experience has involved oil and gas, trusts and estates, and commercial litigation. “I am impressed with Ryan’s trial experience and his understanding of the creative use of judicial remedies to aid clients. He will be an important part of Billington Barristers’ professional strength” said Rick Billington. “He adds to our firm’s recognized experience in injunctions and pre-trial remedies, including by having appeared in court in both Alberta and British Columbia on these often emergent matters”.

January 2010 – Richard N. Billington, Q.C. addresses The Canadian Bar Association
The Canadian Bar Association heard a presentation by Rick Billington at the January 2010 Alberta Law Conference in Calgary. Entitled “Nothing but the Hole Truth”, Rick Billington discussed his experience in pioneering equitable remedies to augment the statutory power afforded to municipal governments. As a result of the economic downturn of 2008/2009, Alberta municipalities were faced with numerous deep excavations for high-rise buildings that had been abandoned by developers. These holes, often located in the downtown core, posed significant safety and environmental hazard.

Working in concert with internal counsel at the City of Calgary, Rick Billington developed a litigation strategy to address the hazards created by abandoned excavations, yet without requiring the municipality to bear the expense of remedying the situation. His presentation focused on the wide range of judicial remedies he has employed to cause rapid action to be taken by the property owner. These have included injunctions, appointment of receivers, contempt of court proceedings and providing a super-priority for the costs to remedy the hazards so that taxpayers are not faced with massive, unanticipated financial liability.

December 2009 - Significant decision on remedies for breach of freehold oil and gas lease obtained by Billington Barristers
Justice D. Miller of the Court of Queen’s Bench of Alberta has rendered judgment in a significant case clarifying the remedies that are available to the owners of freehold oil and gas rights when operators continue to produce from their land after the lease has expired.

Canpar Holdings Ltd. and Petrovera Resources v. Petrobank Energy and Resources Ltd. considered the rights of the owner of freehold oil and gas rights after a lease to produce from their land had expired, yet the former lessee continued to produce from the land. The Plaintiffs, represented by Richard N. Billington, Q.C. and Monique Morin of Billington Barristers, sought and obtained a wide range of remedies in contract, tort and equity, including an injunction, a declaration that the lease had expired, and damages for miscalculation of royalty payments prior to the expiry of the lease. Most significantly, they also obtained judgment for damages for trespass and conversion for the Defendant’s continued operations from the land after the lease had expired and for an accounting for all sums produced from the land after the lease had expired.

In awarding an accounting, the Court directed that the Defendant must pay to the Plaintiffs the entire value of all substances produced from the land since the time the lease expired, deducting only the actual cost of production. In addition, the Court determined that the Defendant must also pay damages for its actual trespass on the land in the sum of the royalty that it previously was required to pay under the lease. The decision recognized that there had been not only a breach of contract, but that the Defendant had committed separate torts of trespass and conversion.

The decision was also precedent setting in upholding a “no deductions” clause that gave the freehold owner substantially better lease terms than were found in standard industry agreements.

Richard N. Billington, Q.C., lead counsel for the Plaintiffs, commented on the successful result: “This decision develops a line of recent authority in western Canada that those who produce hydrocarbons from freehold land after the lease has expired cannot merely contend that they felt the lease was still valid. The Court will hit them with an injunction, strip them of the entire amount of revenue that they hoped to produce from the land, and then award additional damages to deny them the amounts that they thought they would have to pay by way of royalties had their interpretation of the lease been upheld. This case has also provided the first judicial interpretation and support to the ‘no deductions’ clause contained in the Plaintiffs’ freehold mineral lease. Despite the contention of the Defendant that such a clause is contrary to industry practice, the terms of the lease prevail. ‘No deductions’ means just that, that no deductions shall be made for fuel gas necessary to carry out operations, nor for any other purpose not expressly allowed under the lease.”

Click here to review a copy of the Reasons for Judgment

October 2009 – Billington Barristers, City of Calgary cited in Canadian Lawyer Magazine
The October 2009 edition of Canadian Lawyer Magazine reviews the situation faced by The City of Calgary when it found itself having to deal with a series of very large, abandoned excavations. Author Daryl-Lynn Carlson writes:

Abandoned construction sites are creating safety concerns, threatening the integrity of infrastructure, and sending City of Calgary lawyers scouring through municipal law to find ways to protect the public. …
“The impact on surrounding property owners, city infrastructure, and on public safety is a major concern for the city,” says Paul Frank, a lawyer with the City of Calgary’s Corporate Services Department and one of two lawyers who have been working full time on options to secure the sites.
“In the public interest, the city has had to take a number of steps. We’re the only ones in Canada with this issue.”
… Ultimately the city can take ownership of the site or sell it at auction, but the process can take up to three years. So Frank, lawyer Susan Trylinski, and outside counsel Richard Billington of Billington Barristers, have been working to find other means to compel compliance in a cost-effective manner.

September 2009 - Richard N. Billington, Q.C. quoted in Calgary Herald
Rick Billington was quoted in the September 17, 2009 Calgary Herald. He provided comment on when causes of action survive in the case of the death of an individual litigant who was also the shareholder of a corporate litigant.
Click here to view the article.

September 2009 - Richard N. Billington, Q.C. addresses national insolvency conference
Rick Billington addressed the Canadian Institute’s Western Canadian conference “Advanced Insolvency Law & Practice”, held in Vancouver, British Columbia, September 2009. He was the Moderator and Speaker at the panel “Understanding the Interplay of Real Property Laws with Insolvency Regimes”. He spoke on his court experience in addressing the obligations of landowners who have commenced major excavations, but who have abandoned them when they become insolvent.
Click here to view The Canadian Institute’s Web site.

July 2009 - Monique Morin joins Billington Barristers
Richard N. Billington, Q.C. is pleased to announce that Monique Morin has joined Billington Barristers.
Ms. Morin brings experience in Municipal Law, particularly relating to the rights of Municipalities to extraordinary remedies, including injunctions and receiverships. Her courtroom experience includes trials of municipal offences, contested chambers applications in both Queen’s Bench and Provincial Court, preparation of applications for Judicial Review, and applications for leave to appeal to the Supreme Court of Canada. She also brings a background in environmental matters.
Monique Morin will assist on major files and will be developing a practice in the area of oil and gas litigation, corporate insolvency and restructuring, and general civil litigation, in addition to her work in municipal and regulatory law. We look forward to introducing her to our clients and professional contacts.

February 2009 - Billington Barristers appoints Receiver over abandoned excavation site on behalf of The City of Calgary
Madam Justice A. Kent of the Court of Queen’s Bench of Alberta has granted the application of Richard N. Billington, Q.C. to appoint a receiver over land where a major excavation was abandoned, creating a public safety hazard. The site in question, Manchester Station, in south Calgary near Chinook Centre, has been subject to an Order made by the City under the Municipal Government Act, but that Order has not been complied with. The City retained Billington Barristers to also seek an injunction against the defaulting owner who was also committing a trespass on neighbouring land.
Click here for to view the news article.

October 2008 – Billington Barristers obtains precedent-setting injunction in federal election
The Court of Queen’s Bench of Alberta has awarded a precedent setting injunction to clients of Billington Barristers. The injunction was granted to the Conservative Party of Canada and Devinder Shory Campaign on September 30, 2008. Madam Justice Sheila Martin granted the motion of Richard N. Billington, Q.C. and restrained independent candidate Roger Richard from holding himself out as though he was an official candidate of the Conservative Party of Canada when he is not. It is the first injunction ever granted to restrain the conduct of a candidate during an election campaign.
Click here to view a copy of the Judgment
Click here to view a copy of the Reasons for Judgement
Click here to view a copy of the Order

July 24, 2008 - Billington Barristers causes appointment of Receiver over Executive Marketing & Strategies Ltd.
Acting for individuals who invested in Executive Marketing & Strategies Ltd., Richard N. Billington, Q.C. has obtained the appointment of a Receiver over the affairs of Executive Marketing & Strategies Ltd.
The Receiver is charged with the duty of investigating the affairs of the respondent and in recommending a claims process dealing with the allocation of a fund of money which had been frozen pursuant to an Order of the Alberta Securities Commission.
Click here to view a copy of the Order

May 26-27, 2008 - Richard N. Billington, Q.C. to speak at National Fraud Conference
Rick Billington will address the topic of “Protecting your Corporate Identity” at the annual conference of the Association of Certified Forensic Investigators of Canada in Toronto.
The conference theme is “The Many Faces of Fraud”. In a nightmare scenario, a rogue employee steals confidential information that is critical to your company, including sensitive personal information about your customers. He then uses it to attempt to extort the company, and when the extortion fails, starts to spread the information to a variety of people, alleging that it supports proof of wrongdoing by your corporation. The police and regulators who oversee your industry prove to be incapable of responding to the threat, yet action is needed. This will be the tale of one company that successfully fought back … fought back against regulatory indifference, against groundless smears, and against adversaries who thought they could use the internet to hide their actions and put themselves above the law.
Rick Billington relates the now public circumstances behind a case involving the use of civil judicial remedies to seize computer data, to counter-attack against identity theft, to fine and jail wrongdoers for civil contempt, and to recover the critical information of a business that found itself alone in the fight to protect both its customers and its own critical information.
Click here for more information about the ACFI.

April 2007 - Dealing with Identity Theft
Rick Billington interviewed in Forum – Advocis’ magazine for Canadian Financial Advisors.
In the April 2007 issue, he discusses the increasing exposure of businesses and their directors to liability if they fail to take adequate steps to guard confidential documentation or if they fail to take rapid and effective action when it is determined that confidential or proprietary information has been misappropriated. Billington Barristers are particularly experienced in providing representation and advising on innovative forensic and judicial remedies to protect your interests in such situations. As Rick Billington states in the article:
It may not be sufficient to merely report the wrongdoing to the police. Rapid action through the pursuit of civil remedies, including specialized injunctions, may be needed to show that businesses and their directors have acted with proper diligence. In the absence of such diligence, businesses expose themselves to potential claims including the prospect of class action suits.
Click here to view the article.

November 2006 - Canadian Business – the Brian Mallard Story
The November 2006 issue of Canadian Business includes an investigative report of the dealings that financial advisor Brian Mallard has gone through, and of Rick Billington’s representation of him.
When faced with the secret misappropriation of confidential information from his office, Brian Mallard took action to protect his customer’s interests. He retained Rick Billington who obtained an Anton Piller Order to permit the search for and seizure of evidence from the home of the Defendant. When third parties tried to inject themselves into the litigation, which was being carried on in two provinces, Billington successfully sought injunctions and moved for a contempt finding, ultimately resulting in the jailing of one individual who flouted Court Orders.
Click here to view the article.
Click here to view the Court of Queen’s Bench of Alberta’s decision on contempt proceedings in this matter.
Click here to view the Saskatchewan Court of Queen’s Bench’s proceedings whereby Rick Billington obtained an injunction on behalf of Brian Mallard; click here to view the proceedings which that injunction was enforced by a contempt Order.

October 2006 - Billington addresses Association of Certified Forensic Investigators of Canada
Richard Billington spoke to a meeting of the ACFI in Calgary. His topic, “The Canadian Advantage, Better Courts, Better Business – Extraordinary Remedies in Civil Litigation” focused on the superior protections available in Canada to safeguard intellectual property rights, such as to gather evidence in copyright and patent infringement cases, to trace and seize the proceeds from the illegal exploitation of proprietary trade secrets. He stated:

Canadian Courts have been quick to adopt, apply and develop judicial remedies with the view to ensuring that legal processed develop within an increasingly sophisticated economy, and to meet the realities of a rapidly developing environment of computerized information. Whether providing tools to combat those who use the perceived anonymity of the internet as a platform to publish defamatory comments, or in responding to the conversion of most business information and currency into electronic data, the Canadian judges have employed a variety of judicial remedies, many of which are not available to their American counterparts. These are powerful weapons to combat fraud.

October 2006 - Richard N Billington, Q.C. Appointed Independent Supervising Solicitor by Federal Court
Mr. Justice Harrington of the Federal Court, sitting in Toronto, appointed Richard N. Billington, Q.C. to act on behalf of the Court in executing an Anton Piller Order.
The October 18, 2006 Order, granted to Schlumberger Canada Ltd. directed that Billington was to supervise the search for and seizure of evidence that was needed by the Plaintiff in respect to a breach of copyright case that it was bringing against a computer software design firm. The search resulted in the seizure of over nine terabytes of data, a massive amount by any standard. This represents the data that would be found on three hundred stacks of paper, each the size of Toronto’s CN Tower. As Independent Supervising Solicitor, Billington’s role has been to ensure that the Court’s directions were carried out, that the Defendant’s rights are protected, and that the analysis of data focuses only on relevant material, and that no privileged documentation is ever disclosed to the plaintiff. In this role, Billington worked closely with a major computer forensic group of one of the “Big Four” international accounting firms, directing their activities in carrying out the Court’s investigation and reporting to the Court. The case has subsequently resolved without necessity of going to trial.

October 2006 - Richard N. Billington Q.C. Speaks to Canadian Institute Seminar on Advanced Insolvency Law and Practice
Speaking as part of a panel with Mr. Juval Aviv, president of Interfor, an international asset recovery firm, and Mr. John Williams of KPMG, Rick Billington addressed the Canadian Institute on how proceedings under the Companies’ Creditors’ Arrangement Act (CCAA) and the Bankruptcy and Insolvency Act (BIA) can enhance the ability to recover assets and information from fraudulent wrongdoers. He spoke to the issues of the procedural requirements of creditors seeking extraordinary relief against a bankrupt or insolvent, and of the role and availability of Anton Piller Orders, Mareva Injunctions and Norwich Pharmacal Orders. He also addressed the power of Interim Receivers, Receivers and Trustees in Bankruptcy to investigate and use extraordinary remedies to challenge fraud.

July 26, 2006 - Court of Queen’s Bench of Alberta Appoints Richard N. Billington, Q.C. as Independent Supervising Solicitor
Mr. Justice Hawco granted an Anton Piller Order to The City of Calgary to permit a forensic investigative team to conduct a search for evidence of fraud by an employee. This Order permitted the search of the employee’s locker, car, home, and other location where it was believed that evidence would be found to show that he had defrauded his employer over a lengthy period of time. Richard Billington was appointed by the Court as its Independent Supervising Solicitor, responsible for overseeing the simultaneous execution of the search in multiple locations. His responsibilities also include directing the forensic investigators and providing advice to them, ensuring that the defendant was aware of his rights, and protecting any information that was not relevant to the investigation or that was subject to a claim of privilege. Billington prepared a report to the Court upon the conclusion of the search outlining the results, and continues to provide representation as directed by the Court. For more details on Rick Billington’s experience with Anton Piller files, see the Anton Piller page of this Web site.

December 31, 2005 - Richard N. Billington Appointed Queen’s Counsel
On the last day of Alberta’s centennial year, Justice Minister Ron Stevens announced the appointment of Queen’s Counsel, including Richard Billington of Calgary. Justice Minister John Stevens said:

This appointment recognizes that these lawyers have made outstanding contributions to the legal profession and the community at large. This longstanding tradition remains a prestigious symbol of respect in the legal community.