Brendan van Niejenhuis

Practice Areas

Brendan’s courtroom experience is unique and extensive, built from a broad range of cases before all levels of court in Canada, as well as administrative tribunals. He has acted as trial or appeal counsel in a variety of specialized fields, including professional and securities regulation, competition/antitrust law, class actions, intellectual property litigation, judicial reviews and appeals, First Nations litigation, corporate and contractual disputes, commercial arbitrations and municipal law. In addition to representing private firms and individuals, he has often been retained as counsel for government agencies, police services, municipalities, industry regulators, and professional discipline tribunals in difficult cases or in response to judicial reviews and civil litigation.

As part of his intellectual property litigation practice, he is cross-appointed as counsel to the leading patent & trademark firm of PCK IP, with offices in Toronto, Waterloo, Boston and Washington, D.C.

Brendan is Adjunct Professor of Law at Osgoode Hall Law School, where he has taught Administrative Law since 2008. Previously, he lectured at Queen’s University Faculty of Law. He continues to regularly speak and write at professional conferences on a variety of subjects.\

He is ranked by Chambers Global, LEXPERT and Benchmark Litigation as a leading litigation counsel, and recognized in Best Lawyers (Canada) for Administrative & Public Law and Corporate-Commercial litigation.  He was previously recognized by Precedent magazine with its Precedent-Setter award for excellence in the first 10 years of law practice, and with a “Rising Star” award from LEXPERT as one of Canada’s leading lawyers under 40.

Prior to joining Stockwoods, Brendan served as a law clerk to the Hon. Frank Iacobucci of the Supreme Court of Canada. He holds a B.A. (Hons.) in Classics and an LL.B., both from the University of Toronto.

Brendan is a member of The Advocates’ Society, Toronto Lawyers’ Association, and Ontario Bar Association. He is an active musician and multi-instrumentalist, and enjoys performing live when time permits. He is also Chair of the Board of Directors of the Muskoka Music Festival.

 

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Representative Work

  • Privacy Commissioner of Canada v. Facebook Inc.  Seeking a Federal Court order as counsel for the Privacy Commissioner, to compel Facebook to implement measures to secure consent before sharing users’ personal information with third-party Apps and to adequately enforce and monitor third-party use of information, as a result of an investigation into the Cambridge Analytica scandal.
  • Vavilov v. CanadaActing for the Queen’s Prison Law Clinic, advanced an influential perspective on behalf of federal prisoners that informed this landmark Supreme Court overhaul of decades of administrative law and the right of the individual to challenge the legality of government action before an independent judge.
  • Greta Energy v. Veresen Energy Infrastructure et al.  Acting for a minority owner of wind farm assets in enforcing rights under a Right of First Refusal, pursuing damages for the alleged manipulation of purchase price allocations by the seller and buyer of a larger suite of energy assets in order to discourage the exercise of the ROFR.
  • Wenger S.A. et al. v. Travelway Group Representing the plaintiffs (who have made the Swiss Army knife since the 19th century) in enforcing their well-known Wenger Cross trademark for luggage, prevailed before the Federal Court of Appeal and overturned most factual findings at trial. Ongoing appeal proceedings dealing with an important and precedent-setting question of damages for infringement.
  • Toronto Police G20 Discipline Prosecutions Appointed as an independent prosecutor of discipline charges against officers of the Toronto Police Service arising from conduct during the 2010 G20 summit in Toronto, led the prosecution of nearly 20 cases, including the successful prosecution of Supt Mark Fenton for his command of two “kettling” incidents in which large numbers of citizens were detained indiscriminately.
  • Attiwapaskat FIrst Nation v. Canada. When this First Nation experienced a housing crisis, the Minister’s response was to install an accountant as “third-party manager” over the elected government that sounded the alarm. Working in collaboration with leading First Nations litigator Katherine Hensel, successfully overturned the Minister’s decision as unreasonable, as featured in the Alanis Obomsawin film “The People of the Kattawapiskak River”.
  • Class Actions.  Representing TD Bank (worldwide FX case; worldwide SSA Bonds case); City of Windsor and Town of Tecumseh (license fee legality); a US energy consulting firm (Timminco secondary market litigation) as defendants. Has acted as plaintiff counsel remedying municipal negligence harming Parkdale rooming house tenants, and often advise on plaintiff class proceedings for litigation funders. Has been appointed amicus curiae by the Ontario Court of Appeal in a significant case involving fee-sharing.
  • Judicial Review and Appeals.  Has argued dozens of judicial reviews and appeals with a strong track record of success since 2003. In addition to Supreme Court litigation in significant cases, has regularly appeared for government bodies, regulators and private parties routinely before the Divisional Court and has particular experience briefing and argue cases there. Has often successfully appeared in the Court of Appeal across a diverse range of cases and clients – from marketing partnerships in the health care industry, to global logistics firms targeted by Canada Post, to acting as an appointed amicus curiae in a major class action relating to credit card merchant fees.
  • Intellectual Property Enforcement. Principally representing rights-holders, counsel on major cases from the Supreme Court’s Access Copyright decision (2012) to the important Wenger appeal noted above, and numerous trade-mark and patent enforcement disputes. Has also successfully represented several well-known copyright holders in royalty disputes with their licensees/publishers. Cross-appointed as litigation counsel at PCK IP, a leading intellectual property firm with offices in Toronto, Waterloo, Boston and Washington, DC.
  • Securities, Competition and Regulatory Practice. Prosecuted major fraud matters Sextant Capital Management and Weizhen Tang for Staff of the Ontario Securities Commission. Has acted for respondents in securities regulatory matters and competition investigations; and defended major firms and senior executives in class actions arising from securities and competition law claims. Regularly act on behalf of regulatory authorities in difficult prosecutions or other litigation, including the Alcohol & Gaming Commission; the Law Society of Ontario; the Ontario Racing Commission, and others.
  • Commercial disputes and licensing issues. A broad range of commercial cases including domestic and international arbitrations, and actions for oppression  and other corporate law remedies; software and data licensing and IP/confidentiality protection; licensing issues across numerous professions and regulated businesses; and other private and public law disputes on behalf of business and individuals.
  • Other advocacy mandates.  Has successfully litigated in a variety of areas and forums in selected cases, ranging from criminal proceedings and firearms regulation in the Ontario Court; challenging disputes with government and private business on behalf of First Nations; unique experience with litigation involving the horse racing industry; constitutional litigation; civil forfeiture claims; extradition and mutual legal assistance work; and pro bono contributions before all levels of court up to the Supreme Court of Canada.
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Additional Info

Awards and Recognition

  • Ranked in Dispute Resolution – Ontario by Chambers Global and Chambers Canada, 2012-
  • The Best Lawyers in Canada – named for Administrative & Public Law and Corporate-Commercial Litigation, 2013-
  • Recognized by LEXPERT for Public Law and Corporate-Commercial Litigation, 2018-
  • Listed as a “Litigation Star”, Benchmark Litigation
  • LEXPERT/American Lawyer Guide to the Leading US/Canada Cross-Border Litigators, “Litigators to Watch”, 2012
  • Precedent-Setter Award, Precedent Magazine, 2011
  • LEXPERT Rising Stars – Leading Lawyers Under 40, Lexpert Magazine, 2011

Publications

  • Amicus curiae in class action settlements and fee approval hearings” (with Carlo Di Carlo), 37:3 The Advocates Journal at p. 7 (2018)
  • “Recent Developments of Importance: Corporate-Commercial Litigation” (with Paul Le Vay and Justin Safayeni), in The 2013 Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada
  • The Real Federalism Problem with Crime Legislation“, Maclean’s, November 15, 2011
  • “Making and Writing Effective Tribunal Decisions and Reasons” (with Brian Gover and Johanna Braden), Fundamentals of Administrative Law and Practice, Canadian Institute, 2004 (delivered and republished in updated form in 2005, 2006, 2007, 2008, 2009)
  • “CEO in the Crosshairs: Representing Chief Executive Officers in Regulatory Proceedings” (with Brian Gover), presented to The Advocates’ Society Fall Convention, 2004
  • “Protecting Commercial Confidentiality With Sealing Orders After Sierra Club”, 2003 (IX: 2 Commercial Litigation 463)
  • “Liability of Certifying Officers Under Sarbanes-Oxley and Bill 198: Preserving Actual Knowledge”, 2003 (VII:4 Corporate Liability 443)

Teaching & Speaking Engagements

  • Adjunct Professor, Osgoode Hall Law School (Administrative Law), 2008 to present
  • Co-Chair, Osgoode Annual National Forum on Administrative Law & Practice(with Lorne Sossin/Kate Glover Berger and Sean Gaudet), 2012 through 2020.
  • Speaker, “In a World of Uncertainty, How Will We Always Remain Ethical?”, Canadian Institute Advanced Administrative Law & Practice, 2019; (Presented again in 2020 to the Department of Justice Canada/Canadian Security Intelligence Service National Security Litigation and Advisory Group)
  • Speaker, “Social Media in Administrative Law – Good or Bad Idea?” (with Rebecca Young), Canadian Institute Advanced Administrative Law & Practice, 2019
  • Panelist, “What to Expect in a Post-Vavilov World” (with the Hon David Stratas, Barbara Jackman & Michael Morris), Osgoode National Forum on Administrative Law & Practice, 2019
  • Panelist, “The Open Question of Jurisdictional Questions” (with Matthew Horner), Osgoode National Forum on Administrative Law & Practice, 2018
  • Panelist, “Current Plaintiffs’ Issues”, OBA 8th Annual Class Action Colloquium, 2016
  • Lecturer, “Lessons from the G20 Toronto Police Discipline Prosecutions”, 14th Annual Police Adjudicators & Prosecutors Seminar, 2016
  • Panelist, Philippe Kirsch Institute Expert Forum on International Comity in Canadian Law, 2016
  • Speaker, “Essential Considerations for Using Expert Witnesses”, OBA Evidence for Litigators conference, 2015
  • Speaker, Association of Law Officers of the Crown Conference, 2012-2014
  • Speaker, OBA Annual Conference on Constitutional Law, 2014
  • Panelist (with Joseph Markson and Gary Melanson), “Efficiency in Tribunal Hearings”, Canadian Institute Conference on The Law of Policing, 2013
  • Panelist (with Sarit Batner and Brandon Kain), “Judicial Review of Commercial Decisions”, Osgoode National Forum on Administrative Law and Practice, 2012
  • Panel Moderator (with the Hon. Mr. Justice Evans, Chris Bredt and Robert Danay), “The Erosion of the Simplicity of Dunsmuir: Shifts and Drifts in the Standard of Review”, Osgoode National Forum on Administrative Law & Practice, 2012
  • Coach, SOAR/Osgoode Certificate in Adjudication Program for tribunal members, 2012
  • Panelist, Panel Discussion on Expert Witnesses after the Goudge Report, Association of Law Officers of the Crown Conference, 2011
  • Panelist, Panel Discussion on Concurrent Civil and Regulatory Proceedings, Canadian Institute Conference on Securities Litigation and Enforcement, 2011
  • Speaker, Lecture on Witness Preparation and Cross-Examination Pitfalls, Ontario Securities Commission Enforcement Branch Training, 2011
  • Panelist, Panel Discussion on the Crown’s Duty to Consult Aboriginal Communities, Osgoode Professional Development Conference on Crown Liability, 2011
  • Speaker, Presentation on Emerging Issues in Police Liability to Employees, Canadian Institute Conference on The Law of Policing, 2010
  • Panelist (with Lorne Sossin, David Stratas and Freya Kristjanson) Panel Presentation “Recent Developments in Administrative Law”, Conference of Ontario Boards and Agencies, 2009
  • Panelist, Panel Discussion on Disclosure Issues (with David Hausman and Mary Thomson), Osgoode Professional Development Conference on Prosecuting and Defending Professional Discipline Cases, 2009
  • Trainer/Presenter, Joint Session of License Appeal Tribunal and Ontario Racing Commission members, Training on Adjudicating Charter and Human Rights Code Issues in Tribunal Hearings, 2008
  • Adjunct Faculty, Queen’s University Faculty of Law (Administrative Law), 2006-2007
  • Instructor, Legal Ethics First-Year Bridge programme, University of Toronto Faculty of Law, 2006-2009, 2012

Associations

  • Member, The Advocates’ Society
  • Member, Ontario Bar Association
  • Member, Toronto Lawyers’ Association
  • Chairman, Muskoka Music Festival Board of Directors
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