Sarit E. Batner

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Address: 5300-66 Wellington St. W. PO Box 48, Stn. Toronto Dom. Toronto, Ontario M5K 1E6
Lawyer Firm: McCarthy Tetrault LLP
Phone: 416-601-7756
Fax: 416-868-0673
Email: sbatner@mccarthy.ca
Website: mccarthy.ca

First Year of Call
Ontario, 2000

Areas of Practice
Corporate Law

Description
Sarit E. Batner is the Chair of the Board of Partners at McCarthy Tétrault and a partner in the firm’s Litigation Group in Toronto. She is a Fellow of the American College of Trial Lawyers, the International Academy of Trial Lawyers and the Litigation Counsel of America. Sarit maintains a significant trial and appellant litigation practice, with a focus on complex commercial litigation and arbitrations.

Sarit has extensive trial and appellate experience including in cases considering breach of contract, patents, shareholder disputes, taxation, oppression, professional negligence and breaches of fiduciary duties.

Sarit has experience before courts of appeal, including as lead counsel before the Supreme Court of Canada, and trial courts with juries, arbitration panels, administrative and regulatory tribunals. She has maintained an interest in professional liability matters, having acted as counsel for doctors, engineers, accountants and lawyers, in a wide variety of cases. Set out below are some of the trials and appeals and other cases in which she has been counsel before the courts.

Sarit has a record of success before all levels of courts in Ontario and often speaks and writes on matters of substantive law, procedure and advocacy. She is frequently invited to speak at legal conferences.

The current edition of Lexpert / American Lawyer Guide to the Leading 500 Lawyers in Canada lists Sarit as a leading lawyer in the area of Corporate Commercial Litigation. She is also listed as a leading lawyer in the current edition of Chambers Canada in the area of Litigation: General Commercial (Ontario). She is listed as Most Frequently Recommended in the current edition of Canadian Legal Lexpert Directory in Professional Liability, Litigation: Corporate Commercial, Medical Negligence – Represents Defendants and Repeatedly Recommended in Class Actions. She is also listed as a litigation star in the current edition of Benchmark Litigation: Guide to Canada’s Leading Firms and Attorneys. Sarit is recognized by Best Lawyers in the areas of Corporate and Commercial Litigation and Medical Negligence and was named “Lawyer of the Year” in 2020 in the area of Medical Negligence.

Sarit has been awarded some of the most prestigious honours for advocacy, including: in 2021, the OBA Award of Excellence in Civil Litigation, in 2020 Advocates’ Society’s Douglas K. Laidlaw Medal for Excellence in Advocacy, and in 2018 the Lexpert Zenith Award for leaders in the legal profession who have achieved mid-career excellence. Benchmark Canada named Sarit as one of the Top 50 Trial Lawyers in Canada, as well as, one of the Top 50 Women in Canadian Litigation for seven consecutive years. In 2013, she also received the Rising Star in Litigation Award at Euromoney Legal Media Group’s Americas Women in Business Law Awards and was selected by Lexpert as one of the Rising Stars – Leading Lawyers under 40.

Sarit obtained a B.Sc. with Distinction in Mathematics and was awarded the Gold Medal in Sciences from the University of Western Ontario in 1995. She obtained a JD from the University of Toronto in 1998, was called to the Ontario bar in 2000 and was made a partner in 2006.

SELECTED APPEALS

Fram Elgin Mills v. Romandale Farms Limited – 2020 – appeal considering issues including good faith, estoppel, frustration, mistake, specific performance
Grasshopper Solar v IESO – 2020 appeal considering breach of contract issues including time is of the essence clauses and estoppel
Ball v McAulay (York University) – 2020 appeal re: jurisdiction of university tribunal over matters of student discipline
Crump v Fiture – medical negligence appeal re: appendicitis treatment
Ferreira v Mary’s General Hospital – 2018 – successful appeal from successful injunction re: removal of life support
Fram Elgin Mills v. Romandale Farms Limited – 2016 – successfully quashing appeal for want of jurisdiction
Konig v. East West Plastics – 2015 – successful appeal following a long trial (Commercial List) involving oppression remedy and breach of fiduciary duty
Merck & Co v. Apotex – 2015 – successfully upheld trial decision granting Merck over $200 million dollars in damages for patent infringement
AbbVie Corporation v. Janssen Inc. – 2014 – lead counsel in successful motion opposing stay of proceedings before Federal Court of Appeal
Bruno Furniture v. Hryniak et al; Mauldin et al v. Hryniak et al (“Combined Air”) – 2014 – lead counsel in Supreme Court of Canada appeal concerning summary judgment and access to justice; arising out of landmark decision from Ontario Court of Appeal setting the law on summary judgment in Ontario
Konig v. East West Plastics – 2014 – appeal following a long trial (Commercial List) involving oppression remedy and breach of fiduciary duty (decision pending)
Miller Paving ats Moore – 2013 – Environmental appeal re nuisance, negligence and trespass claims
Manary v. Strban – 2013 –trial and appeal involving ascending aortic dissection in a 35 year old pregnant woman diagnosed with pulmonary emboli
Air Canada v. Porter Airline – 2011/2012 – Judicial Review Application and Appeal regarding access to the Toronto Island Airport
Merck & Co vs. Apotex – 2011 – successfully upheld trial decision declaring Merck’s patent valid and infringed by Apotex involving the drug LOVASTATIN
Bofaro v. Dowd – 2010 – successful trial decision upheld by Court of Appeal in case involving laparoscopic assisted vaginal hysterectomy resulting in bowel perforation, sepsis and a fistula
Stantec Consulting Ltd. ats Mladenov Group Enterprises Ltd. – 2008/2009 – successful dismissal of action, upheld in the Court of Appeal, on behalf of Stantec, an environmental consultant being sued for millions of dollars in respect of an environmental report it provided to the plaintiff
Paxton v. Ramji – 2006/2008 – successful long compromised baby trial raising issues of wrongful life -successful at the Court of Appeal – leave to Supreme Court of Canada denied
Jackiewicz ats Kennedy – 2004 – successful in the Court of Appeal in resisting appeal involving laproscopic surgery resulting in bowel perforation
Rive v. Newton – 2001 – successful trial decision upheld by Court of Appeal in case involving a tax issue of whether GST was applicable on a sale of land
SELECTED TRIALS AND INJUNCTIONS

MerckWyeth (Pfizer) – 2020 – successful patent trial re: Prevnar (pneumococcal vaccines)
KF Capital v Kakoschke – 2020 – successful motion re: corporate indemnities in context of breach of fiduciary duty claims
Clarus Securities v Aphria – 2020 – application re: corporate indemnities in context of market manipulation of securities claim
StepitaDibble – 2020 – successful long medical negligence trial re: aortic mass
Peller v. Ogilvie-Harris – 2018 – successful medical negligence trial concerning complete severance of ulnar nerve during elbow arthroscopy
John Hancock Financial Services (US arm of Manulife) Infinite Media – 2017 – successful injunction re: shut down by service provider of John Hancock’s key knowledge management system
Ferreira v. St. Mary’s General Hospital – 2017 – successful injunction re: end of life proceedings
Sharma v. Ryerson University – 2017 – appeal re: student accommodation and allegations of discrimination
Twelve Gates v. Eminence Living – 2017 – successful setting aside of 3 certificates of pending litigation
Orr v. Ngai 2016 – successful medical trial in a case against multiple internists concerning missed diagnosis blood disorder
Mohan v. Daly – 2016 – successful medical trial in a against obstetrician concerning brachial plexus injury following shoulder dystocia
Fram Elgin Mills 90 Romandale Farms Limited – 2015 – successful ominibus motion in $200 million land dispute concerning issues of pleadings, limitation period, joinder
Lee v. Lee – 2015 – successful long medical negligence trial concerning death of young man following aortic dissection
AbbVie Corporation v. Janssen Inc. – 2014 – co-lead counsel in successful injunction trial involving patent dispute over Janssen’s drug STELARA.
AbbVie Corporation v. Janssen Inc. – successful Injunction Trial and Stay Motion regarding dispute over patent infringement
IMAX v. Tsui et al – 2014 – lead counsel in successful trial, as well as Anton Piller Injunction and contempt proceedings, arising from former employees’ alleged theft of confidential information and trade secrets
Pegado ats Todd – 2014 – successful trial in case involving infective myocarditis
AllerganApotex – 2013 – lead counsel in successful injunction motion against Apotex involving Allergan’s drug LATISSE
Merck & Co< /em> Apotex – 2013 –successfully granted Merck over $200 million dollars in damages for patent infringement
Suzuki Canada Inc. – lead counsel in Suzuki Canada’s restructuring to exit the Canadian automotive market and in national, multiparty litigation involving 48 dealers
Bogdon v. Folman – 2012 – successful long trial involving care by a physician of a young child with hypoglycaemia
Dunn et al – 2012 – successful criminal fraud trial in defence of former CEO of Nortel
Merck & Co v. Apotex – 2010 –successfully declared Merck’s patent valid and infringed by Apotex involving the drug LOVASTATIN
Stoneleigh Motors et al v General Motors of Canada Limited – 2010 ONSC 1965 (CanLII), 2010 ONSC 3045 (CanLII) – counsel to plaintiffs in national multi-party action against GMCL for re-instatement and damages arising out of mass termination in 2009 restructuring (action settled, combination of reinstatements and cash payments)
Aquafor v. Calder Engineering – 2010 – successful trial (Commercial List) involving breach of fiduciary duty, misappropriation of corporate opportunities, misue of confidential information and competing oppression claims brought against two departing engineers
Smith v. McLinden – 2009 – successful trial involving a missed diagnosis by an emergency room physician, an internist and a neurologist of an intracranial hemmorage
Barr v. Rahimpour – 2009 – successful trial involving prescription of Alesse to 42 year old woman for treatment of mennorhagia who developed pulmonary emboli from the drug
Wilding v. Vilos – 2009 – successful jury trial involving bilateral laparoscopic oopharectomy which resulted in bowel perforations, sepsis and multiple fistulas
Bletsoe Enterprises Inc. et al v. Sobeys Capital Incorporated – 2008 CanLII 61235 – Counsel to IGA dealers in $45 million multi party breach of contract action against Sobeys Capital (action settled on basis of cash payments and new dealer agreements)
Bafaro v. Dowd – 2008 – successful trial involving laparoscopic assisted vaginal hysterectomy resulting in bowel perforation, sepsis and a fistula
Bruno v. Birss – 2008 – successful trial involving failure to order a follow up ultrasound during pregnancy where the infant was born with no hands and missing one foot
Circor v. IFC – 2007/2008 – successful 3 month trial in breach of fiduciary duty/breach of contract case arising out of the departure of senior management personnel who misappropriated confidential and proprietary information and with it set up a successful, competing business
Canpages Inc. v. Quebecor Media Inc. – 2008 – successfully obtaining interim and interlocutory injunctions to prevent Quebecor for competing in various markets for business in telephone directories
Soper v. Curridor – 2007/2008 – successful long trial involving a schizophrenic who tried to flee hospital by jumping out the window, and became a quadriplegic – the case was against the physicians who moved him for causing the paralysis by failing to immobile his neck (the case was won on causation, on the basis of the neurosurgical evidence)
Frederick Harris Music Company (the publishing arm of the Royal Conservatory of Music) v. Novus Via Music Group Inc. – 2007 – successful resistance of interim and interlocutory injunctions arising from allegations of breach of fiduciary duty, breach of contract and theft of a corporate opportunity
Armstrong v. McCall – 2007 – successful trial involving foot and ankle surgery by an orthopod which was complicated and resulted in infection and an inability to walk
Walters v. Bernstein – 2005 – successful long trial against a prominent Toronto obstetrician involving delay in the diagnosis of breast cancer during and post-partum in a woman with three young children, who passed away
Barbiero v Sleightholm – 2004 – successful trial involving laser hair removal which resulted in scarring
Kovacich v. Baxter – 2004 – successful trial arising out of a live donor nephrectomy in which the plaintiff gave his kidney to his sister and went on to develop necrotizing fasciitis (flesh-eating disease) and became critically ill, losing much of his torso
Wadood v. Cowal – 2003 – successful trial involving a ruptured uterus post an attempted vaginal birth after caesarean section
Smyth v. Waterfall – 2003 – successful jury trial involving an esophageal rupture post a dilatation procedure
Watkins v Griffioen – 2003 – successful jury trial arising out of the death of a 60 year old man from heart issues being treated by his physician
Brigantino v. Csanadi – 2002 – successful long trial arising out of the delay of diagnosis of a dislocated lunate bone resulting in permanent injury to a carpenter
Hood v. Lamont – 2001 – successful trial of a woman who, during her birth, encountered shoulder dystocia resulting in significant disfigurement and impairment
Lite-Way Subs ats Chung – 2001 – successful trial involving a franchisor/franchisee dispute where the issues were fundamental breach of contract, fraudulent misrepresentation and solicitor’s negligence
O’Connell v. Williams – 2001 – successful long trial involving a lizfranc fracture dislocation in the foot which resulted in an amputation
Lizert v. Kruger – 2000 – successful trial involving a missed diagnosis of a myocardial infarction
Some of Sarit’s clients include Merck & Co. Inc, Bell Canada, Stronach International Inc., Unity Health, Romandale Farms Inc., Infrastructure Ontario, Canadian Medical Protective Association (doctors’ defence organization), AbbVie Corporation, Univar Inc., and TO2015 (Toronto Organizing Committee for the Pan-Am Games).

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