Brendan van Niejenhuis

Brendan van Niejenhuis advises and represents clients facing serious disputes, regulatory exposure, and institutional complexity — matters that arrive with unfamiliar terrain, formidable counterparties, or consequences that will outlast the proceeding itself. His practice spans public law, commercial litigation, class actions, intellectual property enforcement, securities and regulatory matters, and First Nations litigation, among other fields. The work turns on the character of the problem, not the category of law.

He has served as senior counsel to the Government of Canada — advising at the highest levels of government — in two of the country’s most prominent recent commissions of inquiry: the Public Order Emergency Commission, examining the invocation of the Emergencies Act during the 2022 convoy protests and border blockades, and the Foreign Interference Commission, examining foreign interference in Canada’s democratic institutions. He represented the Privacy Commissioner of Canada in the federal enforcement proceeding against Meta arising from the Cambridge Analytica scandal, prosecuted major securities frauds for the Ontario Securities Commission, and has acted for First Nations communities, financial institutions, municipalities, police services, professional regulators, and individuals in circumstances demanding both sophistication and discretion. He is a security-cleared Special Advocate available in national security and intelligence matters, and is cross-appointed as litigation counsel to PCK IP, a leading Canadian intellectual property firm.

Some of his most significant mandates never reach a courtroom or surface publicly. While many matters arrive with the need to respond to a legal proceeding, Brendan is often engaged when the contours of a problem are still emerging and the exposure is indeterminate — where the client’s interests are best served by anticipation rather than force, and the measure of success is that the problem recedes rather than escalates.

When matters do proceed to hearing or trial, he brings more than two decades of advocacy at every level of court in Canada, before administrative tribunals, and in commissions of inquiry. He has appeared in the Supreme Court of Canada in cases that reshaped the law, argued dozens of judicial reviews and appeals, and examined witnesses in proceedings of national consequence.

Brendan clerked at the Supreme Court of Canada for the Hon. Frank Iacobucci. He is a Senior Fellow of Massey College in the University of Toronto. He taught administrative law for nearly twenty years at Queen’s University and Osgoode Hall Law School, and currently leads an advanced seminar at the University of Toronto Faculty of Law as an Adjunct Professor He has been recognized annually for many years by Chambers Global, Best Lawyers and Lexpert, and consistently named a Litigation Star by Benchmark Litigation.

Outside the law, he is a performing musician, served ten years as board chair of the Muskoka Music Festival, and is a contributing producer of the Canada-UK production Letters to the Future.

 

• Appeals and Judicial Review. Counsel in Canada v. Vavilov, the Supreme Court’s landmark overhaul of decades of administrative law — acting for the Queen’s Prison Law Clinic, advanced an influential perspective on the individual’s right to challenge the legality of government action before an independent judge. Has argued dozens of judicial reviews and appeals over two decades, with particular depth in the Divisional Court, and has appeared in the Court of Appeal across a remarkable range — from health-industry marketing partnerships, to global logistics firms targeted by Canada Post, to remedies for trade-mark enforcement, to appointment as amicus curiae in a major class action concerning credit card merchant fees.

 

• Class Actions. Defence counsel to TD Bank (worldwide FX and SSA Bonds litigation), the City of Windsor and Town of Tecumseh (a dispute spanning decades of alleged improper licensing fees), and a U.S. energy consulting firm (Timminco secondary market litigation). Has acted as plaintiff’s counsel remedying municipal negligence harming Parkdale rooming house tenants, advises litigation funders on plaintiff-side proceedings, and has been appointed amicus curiae by the Court of Appeal in a major dispute about national-scope classes and fee-sharing among law firms.

 

• Commercial Disputes and Arbitration. Broad experience in domestic and international private arbitrations, oppression and other corporate remedies, software and data licensing disputes, and licensing issues across regulated businesses and professions. Represented TD Bank in a dispute with Scotiabank over the treatment of an equity basket derivative security following a corporate spin-off. Acted for a minority owner of wind farm assets enforcing a right of first refusal and pursuing damages for the alleged manipulation of purchase price allocations designed to defeat it. Cross-border matters include enforcement of letters of request and multi-jurisdictional securities litigation. Other representative clients include the Royal Bank of Scotland, CoreLogic Systems, and FAG Bearings.

 

• Commissions of Inquiry. Senior counsel to the Government of Canada in the two most consequential federal inquiries of recent years: the Public Order Emergency Commission, examining the invocation of the Emergencies Act in response to the 2022 convoy protests and border blockades, and the Public Inquiry into Foreign Interference, examining foreign interference in Canada’s democratic institutions. Represented journalist Stevie Cameron in respect of the Oliphant Commission’s inquiry into the dealings between former Prime Minister Brian Mulroney and arms dealer Karlheinz Schreiber. Has advised other parties and witnesses drawn into provincial and municipal inquiries.

 

• First Nations Litigation. Advised the Assembly of First Nations Executive Council in its high-profile dispute with the former National Chief. Acted for the Innu Nation of Labrador in relation to multiple issues emerging from the controversial Muskrat Falls hydroelectric project and the planned Gull Island expansion. Represented Attawapiskat First Nation in overturning the decision of the Minister of Aboriginal Affairs to install a “third-party manager” over its finances in response to a housing crisis (featured in the Alanis Obomsawin film The People of the Kattawapiskak River). Represented the Chippewas of Rama at trial and on appeal in a $1 billion dispute about entitlement to revenues from Casino Rama. Has represented First Nations in housing and child-welfare matters, in asserting inherent jurisdiction under Indigenous law, and in a range of disputes with government and private business.

 

• Intellectual Property Enforcement. Principally for rights-holders: counsel before the Supreme Court in Access Copyright (2012) and York University (2021), and for the makers of the Swiss Army knife in the Group III/Wenger trademark litigation — prevailing in the Federal Court of Appeal and overturning most factual findings at trial, with ongoing precedent-setting proceedings on damages for infringement. Has defended Costco and its suppliers in infringement actions. Has represented prominent copyright holders in disputes with infringers and with their own licensees and publishers, including the creator of Franklin the Turtle in a dispute with McDonald’s Restaurants. Acts in the technology sector for multiple clients in software licensing disputes. Cross-appointed as litigation counsel at PCK IP, a leading Canadian intellectual property firm.

 

• Police Oversight and Professional Discipline. Appointed independent prosecutor of discipline charges against Toronto Police Service officers arising from the 2010 G20 summit — led nearly twenty prosecutions, including the successful prosecution of Supt. Mark Fenton for his command of two “kettling” incidents in which large numbers of citizens were indiscriminately detained. Prosecuted a senior Staff Inspector on charges of sexual and workplace misconduct. Has advised or acted on discipline matters before the Law Society of Ontario, the Professional Engineers of Ontario, the College of Nurses of Ontario, the Canadian Investment Regulatory Organization (formerly IIROC), the Financial Services Regulatory Authority, and others.

 

• Regulatory Enforcement, Investigations and Privacy. Counsel to the Privacy Commissioner of Canada in the Federal Court enforcement proceeding against Meta (Facebook) arising from the Cambridge Analytica investigation, since appealed to the Supreme Court of Canada. Prosecuted major securities frauds — Sextant Capital Management and Weizhen Tang — for Staff of the Ontario Securities Commission, and has acted for many clients facing OSC investigation or interviews, leading to resolution or defending the resulting proceedings. Representing the Alcohol & Gaming Commission of Ontario on major matters in the retail cannabis, horse racing, gaming, and liquor industries. While regularly sought out by regulators in challenging matters, he has substantial experience on the other side of the table — for respondents in securities and Competition Bureau investigations, and for major firms and senior executives defending the class actions that often follow.

 

• Selected Other Mandates. Select criminal proceedings and firearms regulation in the Ontario Court of Justice; constitutional litigation, including defending the validity of the provincial Drainage Act against challenge by CP Railway Co. on federalism grounds; civil forfeiture; extradition and mutual legal assistance; unique experience in litigation involving the horse racing industry; and pro bono advocacy at every level of court, including the Supreme Court of Canada.