Don is a Q.C. practicing at McLennan Ross since 1988 as a member of the Commercial Litigation, Construction, Insurance and Professional Liability Practice Groups. He is Chair of the Calgary Commercial Litigation Practice Group and has been a member of The Law Society of Yukon since 1992.
Don has extensive court experience as counsel in over 30 Queen’s Bench trials and innumerable court applications. In mediations and arbitrations, he has attended the Harvard University Mediation Workshop and participated in dozens of mediations, judicial dispute resolutions and arbitrations, including arbitrations under the International Commercial Arbitration and Conciliation (UNICTRAL) Rules.
Don has appeared in all levels of court in Alberta, the Supreme Court of Yukon, the British Columbia Supreme Court, the Saskatchewan Court of Queen’s Bench and Federal Court. He has appeared before various boards and administrative tribunals including The Chartered Professional Accountants of Alberta and has appeared as counsel for interested parties in Public Fatality Inquiries.
Awards and Recognition:
•Local Litigation Star, Benchmark Canada 2016
•Insurance, Defamation and Media Law, and Corporate and Commercial Litigation, Best Lawyers in Canada
•AV Preeminent Peer Review Rating, Martindale-Hubbell
•Dispute Resolution, Chambers Global
•Recommendation, The Legal 500 Canada
•Local Litigation Star - General Commercial, Insurance, Professional Liability, Benchmark Litigation Canada
Don has acted as counsel in complex and challenging commercial litigation cases. His breadth of experience includes contractual disputes, oil and gas law, breaches of fiduciary duty and corporate leasing issues.
In construction litigation, he has acted for general contractors, sub-contractors, consultants, engineers and owners in relation to construction claims over a wide variety of areas including delay claims, negligent construction, leaky condo construction, excavation issues, welding claims and builders’ lien actions.
December 4, 2017
Was successful in a Commercial Arbitration defeating the claim of a former consultant to require the corporation to purchase his shares.
Keess v Dueck et.al.
Was successful in an application to strike a Statement of Claim on the basis that it did not disclose a reasonable cause of action.
HRSDC v. TCT , C.L.A.D. 196
Successfully represented a number of former directors who had been issued Payment Orders for unpaid holiday pay of a bankrupt corporation (Wage Recovery Appeal was granted by the Referee).
Global Television v. Alberta, 2013 ABPC 342
Acted for a national media outlet in addressing a Production Order that had been issued against the client with respect to an ongoing murder investigation.
WestJet v. ELS Marketing Inc., 2016 ABQB 172; 2014 ABCA 299; 2014 ABCA 298; 2013 ABQB 666
Judgment was issued in favour of the Plaintiff WestJet in excess of $2 million after a Summary Trial resulting from a breach of contract relating to an outsourced cargo company’s contract with an international airline. The Judge found that the airline proved its claim for damages and the Defendant failed to prove its counterclaim. This decision was upheld by the Alberta Court of Appeal. Leave to appeal to the Supreme Court of Canada was refused. The Alberta Court of Queen's Bench Case Management Judge subsequently ordered security for Judgment before the Defendant was entitled to proceed with its Counter-claim.
Condominium Corp No. 1122235 v. Surbey, 2013 ABQB 722
Acted for a number of Defendants in a Class Proceeding (class action) where the representative Plaintiff purported to bring an action on behalf of all owners of a 500 unit condominium complex in Fort McMurray. The Judge found that the Class Proceedings as proposed were fundamentally flawed and failed to grant certification.
Marathon Canada Ltd. v. Enron Canada Corp., 2009 ABCA 31; 2008 ABCA 424; 2008 ABQB 770; 2008 ABQB 408; 2007 ABCA 27; 2006 ABQB 691; 2006
Represented Marathon Canada in a $93 million action brought by the Canadian subsidiary of Enron. Enron alleged that Marathon breached its Master Agreement by terminating a forward gas contract and failing to continue to supply natural gas. Issues before the court included unjust enrichment, the duty of good faith in contract, junk science and industry custom and practice. After three and a half months of trial, it was found that a Material Adverse Charge had occurred which entitled Marathon to give notice of termination and Enron's claim was dismissed. The Court of Appeal concurred and Enron’s leave to appeal application to the Supreme Court of Canada was denied.
Petro-Canada v. Transocean
Successfully represented Transocean, the world's largest owner of offshore drilling rigs, in a dispute with Petro-Canada. The issues involved the interpretation of a contract and the valuation of the day rates of a drilling rig working on Newfoundland's Grand Banks. Our client's dispute was heard before a three-member panel of arbitrators under the United Nations Conventions for Arbitrations (UNICTRAL). Witnesses gave evidence from Calgary, Houston, St John's Newfoundland, Iraq and Norway.
CCS v. Secure Energy Services, 2009 ABQB 275
Acted as Independent Supervising Solicitors for the execution of an Anton Piller Order in relation to a start-up oil and gas services company. The Order was executed in four different locations and dozens of computer hard drives were imaged and catalogued.
Calcrude Oils Limited v. Langevin Resources, 2003 ABQB 1051
Acted as counsel to the a number of working interest owners who brought action against a number of Defendants under a Farmout Agreement for failure to provide Right of First Refusal (ROFR) Notices in relation to a gas well in Southern Alberta. The matter was concluded at trial.
Canada Safeway v. Shineton, 2007 ABQB 773
The Plaintiff grocery store brought a Judicial Review of the decision of the Information and Privacy Commissioner of Alberta in relation to an alleged breach of privacy of an individual accused of shoplifting.
Other Reported Decisions
Oil and Gas:
•Cornelson v Alliance Pipeline Ltd. 2017 ABCA 13; 2015 ABQB 152; 2014 ABQB 436; 2010 ABCA 204
•Bearcat Explorations Ltd., Re; 2005 ABQB 639; 2004 ABQB 601
•Hydro Kleen Systems Inc. v. Park; 2005 ABCA 396; 2004 ABQB 128; 2003 ABQB 955; 2003 ABQB 802
•Innovative Coke Expulsion Inc. v. Garcia; 2003 ABCA 264
•574095 Alberta Ltd. v. Hamilton Brothers Exploration Co.; 2003 ABCA 34; 2008 ABQB 413
•Predator Corp. v. Ricks Nova Scotia Co.; 2002 ABCA 248; 2002 ABCA 62; 2001 ABQB 1110; 318 A.R. 1 (A.B.Q.B.)
•574095 Alberta Ltd. v. Brendanco Investments Inc.; 2002 ABQB 487; 2002 ABQB 277
•Murphy Oil Co. v. Predator Corp.; 2002 ABQB 630; 2002 ABQB 461; 2002 ABQB 403
•574095 Alberta Ltd. v. Hamilton Brothers Exploration Co.; 2002 ABQB 238
•Panther Petroleum Ltd. v. Code Hunter; 2002 ABQB 158
•Blue Range Resource Corp., Re; 2000 ABCA 285
•Trizec Properties Ltd. v. Husky Oil Operations Ltd.; 1995 CarswellAlta 1128; (A.B. C.A.);  A.J. No. 424 (A.B.C.A.); 1997 CarswellAlta 607 (A.B.C.A.)
Commercial and Construction:
•Truehope Inc. v. Stingham; 2014 ABQB 386
•Sysco Food Services of Calgary v. Fraser; 2011 0901-02383
•1482221 Alberta Ltd. v. Haney Farms (1985) Ltd.; 2009 ABQB 760
•Zellers Inc. v. First Capital Holdings (ALB) Corp.; 2009 ABQB 712
•Zulu Publications Inc. v. WestJet Airlines; 2007 ABCA 154;  A.W.L.D. 1632
•LSI Logic Corp. of Canada Inc. v. Logani; 2001 ABQB 968; 2001 ABQB 710
•Hovsepian v. Westfair Foods Ltd.; 2001 ABQB 700
•Standen's Ltd. v. Pinkerton's of Canada Ltd.; (2001) 203 D.L.R. (4th) 744; (A.B.Q.B.)
•Bre-X Minerals Ltd, Re; (1998) 168 D.L.R. (4th) 215 (A.B.C.A)
• Civil Advocacy Series: Experts , Skills Instructor Legal Education Society of Alberta, 2013
• Civil Litigation Boot Camp”, Legal Education Society of Alberta
•“Advocacy”, Canadian Centre for Professional Legal Education, Lecturer
•“Civil Advocacy Series - Evidence for Litigators”, 2010
• Employment Contacts Can Limit Employees to a Fixed Sum on Termination , Hugh McPhail, Q.C., McLennan Ross E-Mail Alert, 2017
• Asset Sales: Successor Liability Issues , Don Dear, Q.C. and Marco Baldasaro, McLennan Ross E-Mail Alert, 2016
• Security for Judgment: A Useful and Often Overlooked Remedy , Don Dear, Q.C. and Blake Hafso, McLennan Ross E-Mail Alert, 2016
•“A Niche of Their Own”, Lexpert, 2009
In Don’s insurance practice, he represents a wide range of national and international insurers in relation to all forms of insurance related litigation. Don’s insurance defence experience includes coverage opinions, directors and officers claims, serious bodily injury claims and construction and fire losses.
Heikkila v. Apex Land Corporation, 2016 ABCA 126; 2014 ABQB 589
Was successful in having zero liability found against his client in a multi-million dollar appeal brought by an injured worker against the developer of a large loft construction project. The Plaintiff claimed in an action under the Occupier’s Liability Act notwithstanding that the Plaintiff was covered by WCB. The Plaintiff appealed a decision from ABQB in 2014. The finding of the Trial Judge was upheld by the Alberta Court of Appeal.
Enbridge v. Chartis, 2014 CarswellAlta 1030
Represented an international insurer with respect to an application to stay an action bought by an insured on a Bermuda insurance policy as the policy contained a mandatory arbitration clause. The Court granted the stay and directed that the London Arbitration Panel determine whether it has jurisdiction.
Blicharz v Livingstone,2016 ABCA 157; 2014 ABQB 373
Lead counsel for the Defendants in a four-week trial in Lethbridge. The Plaintiff was claiming over a $1 million for injuries resulting from five relatively minor car crashes. The Court did not accept the evidence of the Plaintiff and he completely dismissed any claim for damages for three of the five accidents, awarding less than $12,000 for the remaining two accidents. The Alberta Court of Appeal upheld the decision of the Trial Judge
Represented an Insurer in a Summary Trial defending a claim brought by a daughter of an Insured pursuant to an SEF 44 endorsement. The issue addressed by the Court was whether the daughter had been principally dependent on her mother for financial support. Don was successful in defeating the claim of the Plaintiff and the SEF Insurer was not obliged to respond to the claim.
Represented the insurer of a pipeline contractor that constructed a 3 km sour gas pipeline in Central Alberta. After a few months of operation the pipeline failed and an action was brought against the contractor and others for negligently insulating the pipeline welds on site. The contractor added the engineer to the action alleging that the design of the pipeline did not take into consideration the extreme operating temperatures and the resulting expansion of the pipeline. The matter was successfully concluded by way of private mediation prior to trial.
Oilfield Facilities Construction
Represented an oilfield facilities contractor that constructed a gas plant in the wilderness in North Eastern British Columbia. As a result of the method of construction, there were geological changes and the land shifted causing resulting damage to adjoining lands and pipelines. After taking into consideration issues relating to economic loss the matter was settled without any actions being filed.
After the mast on a drilling rig collapsed, Don defended the Engineer who designed that mast and a number of similar masts against claims brought by the working interest owner of the lands and the drilling contractor. The matter was settled after the exchange of various reports and prior to mediation or trial.
Represents the insurer of a landowner who was sued by a neighbouring downstream landowner for excess erosion to the Plaintiff’s land as a result of our client protecting the riverbank from erosion. The matter is ongoing.
Successfully defended a private mortgage broker in an action brought by disgruntled investors. The matter involved alleged misrepresentations concerning farmland is southern Saskatchewan that had been severely devalued following the downturn in the economy.
Other Reported Decisions:
•Clarke v. Canyon Plumbing and Heating Ltd.; 2015 ABQB 737
•Hindley v. Dominion of Canada General Insurance Company; 2013 ABQB 130
•Soto v. Peel; 2013 BCSC 409
•Kirkland v. Ross et. Al. Action No.: 0701-08869
•Toman v. Fulmer; 2010 CarswellYukon 80
•Pears v. Duncan Estate; 2008 ABQB 211
•Jomaa v. Jomaa; 2007 ABQB 127
•Sluth v. Kostyniuk; 2004 ABQB 917
• Land Developer Vindicated in Occupiers' Liability Case , Best Lawyers, 2017
• Accident Decision Shows Perils of Self-Representation , The Lawyers Weekly, 2016
• Land Developer Vindicated in Occupiers' Liability Case , McLennan Ross E-Mail Alert, 2016
• Just Take the Offer! , McLennan Ross E-Mail Alert, 2016
• Insuring Construction Projects and Effective Risk Management , Buildex Calgary, 2012
•“Insuring Construction Projects and Effective Risk Management”, Buildex Calgary, 2010
•“Insurance Law for Solicitors and Evidence for Litigators”, Legal Education Society of Alberta, 2010
• Insurance Issues for Small Businesses , 43rd Annual Refresher Course Business Law, 2010
Don advises on all forms of professional malpractice litigation for engineers, architects, accountants, mortgage and life insurance brokers, lawyers and pharmacists. He represents a number of leading accounting firms in relation to professional liability and related claims including disciplinary tribunal matters.
Cooperative Centrale Raiffeisen-Boerenleenbank BA (Rabobank International) v. Liebig & Keown LLP, 2015 ABQB 628, 2016 ABQB 417
Successful in a Summary Judgment Application on behalf of the Defendant accounting firm on the basis that the accounting firm was not subject to successor liability resulting from an asset purchase of another firm. On appeal to the Queen's Bench, Sullivan J. upheld the Summary Judgment in favour of the accounting firm and specifically held that successor liability on an asset sale is not the law in Canada.
Accounting Negligence Case
Represented a multi-national accounting firm in an action involving allegations of negligence and breach of fiduciary duty in their audit of a professional services firm. There were hundreds of thousands of documents produced by both parties and experts were retained to provide opinions on standard of care, contributory negligence and damage calculation.
Represented a professional accountant in proceedings before the Disciplinary Tribunal of the Complaints Inquiry Committee. The allegations were that the accountant reflected the revenues of an acquisition but not the costs of acquisition in the Q3 Financial Statements of a public company. After a two-day hearing the accountant was found to have complied with the Handbook and was completely exonerated.
Represented a national chain of pharmacies with respect to a claim brought bought a customer who allegedly was dispensed the incorrect medication. The matter was resolved prior to Questioning.
Represented an accountant who was facing disciplinary proceedings for his preparation of financial statements in relation to a municipality. The matter was resolved by way of a Sanction Agreement with the governing regulator.
Alleged Negligent Tax Advice
A tax accountant provided advice to his client on a departure tax strategy involving the purchase and subsequent repayment of a significant investment outside of Canada and having the clients relocate to a Mediterranean tax haven. The matter was successfully concluded prior to Questioning.
Other reported decisions:
•Northland Bank v. Wilson; (sub nom. Canada Deposit Insurance Corp. v. Prisco) 206 A.R. 290 (C.A.); 1998 CarswellALta 66 (A.B.C.A.); (1997) 214 A.R. 181; (1997) 205 A.R. 310 (A.B.Q.B.); (1997) 204 A.R. 311 (A.B.Q.B.); (1997) 201 A.R. 23 (A.B.Q.B.)
•Caithness v. Coopers & Lybrand; 1998 ABQB 20
•Canada Deposit Insurance Corp. v. Canadian Commercial Bank; (1995) 35 Alta. L.R. (3d) 394; (C.A.)
•Aktar v. McGillivray  AJ No. 1343;  AJ No. 1077
•Institute of Chartered Accountants of Alberta, Sanction Agreement May 2008
• Welcome to Your Clients Lawsuit , CA Magazine, 2010
Don regularly appears at Fatality Inquiries, representing individuals and national and multinational corporations.
Public Inquiry into the death of Fong Sue Louis
Represented the insurer of a long-term care facility that was an interested party into the accidental strangling death of a resident.
Public Inquiry into the death of Maddox Yellow Wings
Represented the owner of a hotel following an unfortunate incident that resulted in a drowning death of a minor in a wave pool in Southern Alberta.
Public Inquiry into the death of Verna Eliason
Represented a long-term care facility with respect to the death of a resident after a fall.
Public Inquiry into the death of Irene Raffa
Represented a long-term care facility in a fatality inquiry resulting from an EMS stretcher transfer accident that resulted in a patient/resident’s death. Following the presentation of evidence including a number of experts, the long term care facility was found to have the appropriate systems in place and no further recommendations were made for a change in policy or procedure.
• Public Fatality Inquiries in Alberta , Don Dear and Elizabeth Fashler, McLennan Ross Legal Counsel Newsletter, 2014
Directors & Officers
Don has been involved with a number of significant actions involving directors and officers including:
•Acted for two directors of a management company being sued in a $50 million class action by 500 condominium owners as a result of the diminution in value of a condo project in Fort McMurray, Alberta (ongoing).
•Acted for the board of a resident’s association which had been sued as a result of the manager of the association absconding with trust funds.
•Acted for the board of a not-for-profit society whose Executive Director forged cheques and stole funds from the founding institutions.
•Acted for a board of directors of a condominium development that was sued by one owner who believed he was being mistreated for not putting his property in the rental pool in a development in Canmore, Alberta.
•Acted for a board of directors of a condominium project sued for defamation and depleting the reserve fund by a disenchanted owner (ongoing).
•Acted on behalf of timeshare property owners in the Columbia Valley in British Columbia in their pursuit of directors of a failed golf/hotel development.
•Defended a board of directors of a hotel/condominium project that was being sued by the owners as a result of alleged deficiencies which occurred during the construction (ongoing).
•Defended 10 directors of a public company in the oil patch being sued by investors for $120 million as a result of a failed purchase of oil and gas assets (ongoing).
•Has also sat on and presently sits on a number of Boards of Directors of Not for Profit organizations, Residents Associations and Condominium Boards/Strata Counsel.
Don has successfully defended clients in a wide range of complex class actions and has had success in defeating class certification. His experience includes:
Lewis v. WestJet Airlines Ltd., 2017 BCSC 2327
Prior to a certification application in a class action, an application was brought to strike the action on the basis that the claim was not properly brought in the British Columbia Supreme Court and ought to have been brought before the Canadian Human Rights Commission and the various Provincial workers' compensation boards.
A link to The Globe and Mail where Don was quoted with respect to this matter can be found here.
Tainted Dog Food
Was involved in a class action brought on by pet owners alleging that one of the major distributors of pet foods in Alberta did not have quality controls in place that resulted in the death of household pets from tainted food. This litigation has been resolved by settlement amongst the parties.
Acted for a number of Defendants in a class action where the representative Plaintiff purported to bring an action on behalf of all owners of a 500-unit condominium complex in Fort McMurray. The Judge found that the Class Proceedings as proposed were fundamentally flawed and failed to grant certification.
Acted for an international transportation carrier with respect to an action involving a large travel facilitator and the incorporation of fuel surcharges in the calculation of costs.
Misrepresentation and Deficiencies
Acted for the directors of a corporation that constructed a luxury condominium/hotel/office complex in an action commenced on behalf of the owners of the residential condominiums for misrepresentations and deficiencies.