Thomas G. Heintzman, O.C., Q.C., FCIArb

University

  • Harvard University, B.A., Economics, cum laude, 1962

Law Schools

  • London School of Economics, LLM, 1967
  • Osgoode Hall Law School, LLB, silver medal, 1966

Bar Admissions

  • Ontario, 1968
  • Newfoundland, 1977 (non-active)

Mr. Heintzman specializes in arbitration, mediation and civil litigation.  He has been counsel in actions, arbitrations and appeals in Ontario, Newfoundland, Manitoba, British Columbia and New Brunswick and has made numerous appearances before the Supreme Court of Canada.  He has been particularly active in commercial disputes relating to securities law and shareholders rights, government contracts, broadcasting and telecommunications, construction and environmental law.

Mr. Heintzman was the President of the Canadian Bar Association from 1994 to 1995. He served on the National Executive of the Canadian Bar Association between 1991 and 1996, and was president of the Canadian Bar Association-Ontario (now the Ontario Bar Association) from 1989 to 1990.

Mr. Heintzman was a bencher of the Law Society of Upper Canada, having been elected in 2003 and re-elected in 2007.

In 1980, Mr. Heintzman was appointed Queen’s Counsel, and in 1998, he was appointed an Officer of the Order of Canada.  In 2008 Mr. Heintzman received the OBA Award for Excellence in Civil Litigation.

Since 2002, Mr. Heintzman has appeared in both the Guide to the Leading 500 Lawyers in Canada, published by L’Expert and American Lawyer, and the Canadian Legal Lexpert Directory, a guide to the leading law firms and practioners in Canada. He has been listed in an International Who’s Who of Commercial Litigations (Law Business Research) as one of the top 500 commercial litigation counsel in the world. Mr. Heintzman is recognized as a leading lawyer in the areas of corporate commercial litigation, securities litigation, class action litigation, product liability and professional liability. He is also listed in The World’s Leading Lawyers, published by Chambers Global, as a leading lawyer in the area of litigation.

The following cases include some of the highlights of Mr. Heintzman’s litigation career.

Together with George D. Finlayson (later Mr. Justice Finlayson of the Ontario Court of Appeal, now deceased), Mr. Heintzman acted as counsel for Hydro-Quebec in the litigation relating to the Government of Newfoundland’s attempt to recall the power sold from Churchill Falls to Hydro-Quebec pursuant to a Power contract entered into in 1969. Churchill Falls is one of the largest single power generation plants in the world. Mr. Heintzman was involved in this litigation from 1976 to 1988. The action was successfully defended on behalf of Hydro-Quebec: Newfoundland (Attorney-General) v. Churchill Falls (Labrador) Corp. (1983), 145 A.P.R. 181; 168 A.P.R. 91; [1988] 1 S.C.R. 1085. Mr. Heintzman appeared in the Supreme Court of Canada in May 1998 at which time the final appeal was dismissed.

Mr. Heintzman acted for Hydro-Quebec in a constitutional Reference pursuant to which the Government of Newfoundland sought to expropriate Churchill Falls and thereby sever the Power Contract pursuant to which Hydro-Quebec purchased almost all of the power from Churchill Falls. Newfoundland’s attempt to expropriate Churchill Falls was found to be unconstitutional by the Supreme Court of Canada: Re: Upper Churchill Water Right;s Revision Act, 1980, [1984] 1 S.C.R. 297.

In 1988 and 1989, Mr. Heintzman acted as counsel to CanWest Communications Enterprises Inc. in a dispute over the control of Global Television, one of the major television networks in Canada. The action was successfully defended on behalf of CanWest, and CanWest was granted an order in its counterclaim setting aside the relationships between CanWest and its partners in Global: Morton v. Asper (1988), 55 Man. R. (2nd) 61.

Securities and corporate law has been a major area of litigation practice for Mr. Heintzman. In 1983, Mr. Heintzman appeared in hearings before the Ontario Securities Commission in which the Commission upheld the banking industry’s entitlement to undertake discount brokerage services: Report on the Implications for the Canadian Capital Markets of the Provision by Financial Institutions of Access to Discount Brokerage Services – October 31, 1983. He acted as counsel to Hiram Walker in the take-over battle relating to that company: Olympia & York Enterprises Ltd. v. Hiram-Walker Resources Ltd. (1987), 59 O.R. (2nd) 79 (Div. Ct.). He was counsel in important oppression and shareholder remedy actions: Re: Palmer v. Carling O’Keefe Breweries of Canada Ltd. (1989), 67 O.R. (2nd) 161 (Div.Ct); Canadian Pacific Ltd. (1990), 72 O.R. (2nd) 545; (1990), 73 O.R. (2nd) 212 (H.C.); GATX Corp v. Hawker Siddeley Canada Inc. (1996), 22 B.L R. (2nd) 25; Lei v. Noble China Inc. (1996), 34 B.L.R. (2nd) 172 (Ont.Gen.Div); and Pente Investments Management Ltd. v. Schneider Corp. (1998) 43 B.L.R. (3rd) 46; 42 O.R. (3rd) 177 (Ont.C.A.).

He was also counsel in one of the first securities class actions: Carom v. Bre-X Minerals Ltd. (1998) 20 C.P.C. (4th) 163; 41 B.L.R. (2nd) 246; (1999), 43 O.R. (3rd) 441; (1999), 44 O.R. (3rd) 173 (S.C.J.).

In 1995 Mr. Heintzman appeared in OSC proceedings relating to the registration of computerized trading systems in Canada: Re: Instinet Corporation (1995), 18 OSCB 5439. He acted as counsel in litigation relating to the control of McCain Foods Inc. He appeared on behalf of debtholders of Trizec Corp. in proceedings relating to the restructuring arrangements for that Corporation: Re Trizec Corp., [1994] 10 W.W.R. 127 (Alta.Q.B.). He appeared in the Ontario Court with respect to whether the Charter entitles a corporate director or officer to refuse to testify before a securities commission: Mr. A v. Ontario Securities Commission, [2006] 141 C.R.R. (2nd) 79; 144 C.R.R. (2nd) 281.

Mr. Heintzman has appeared as counsel in many of the important broadcasting and telecommunications proceedings in Canada. He appeared with J.J. Robinette in one of the first broadcasting decisions rendered by the Supreme Court of Canada, which dealt with the right of the Canadian Radio-Telecommunications Commission to regulate cross-border television advertising: Capital Cities Communications Inc. v. Canada (Radio, Television & Telecommunications Commission), [1978] 2 S.C.R. 141. Mr. Heintzman was counsel to the CRTC in the appeal of the Federal Court of Appeal in which the inter-connection by independent telephone companies with the Bell Telephone system was first authorized: Challenge Communications Ltd. v. Bell Canada [1979] 1 F.C. 857 (Fed. C.A.). He acted as counsel to the CRTC in proceedings before the Federal Court of Appeal and the Supreme Court of Canada upholding the CRTC’s right to regulate in relation to the Canadian of content television programming: CRTC v. CTV Television Network et al, [1982] 1 S.C.R. 530. He appeared in Ontario court proceedings with respect to the Provincial Superior Courts’ jurisdiction to interfere with CRTC decisions: Re: Wah Shing Television & Partners Limited Partnership and Chinavision Canada Corp. (1984), 13 D.L.R. (4th) 75 (Ont.H.C.).

Mr. Heintzman is the author of Heintzman & Goldsmith on Canadian Building Contracts (4th ed.) which provides an analysis of the law of contracts as  it applies to building contracts in Canada.  Heintzman & Goldsmith on Canadian Building Contracts has been cited in over 183 judicial decisions including the two leading Supreme Court of Canada decisions on the law of tendering.

The following is a list of the important cases, by subject matter in alphabetical order, in which Mr. Heintzman has acted as counsel:

  • Aboriginal Land Claim Cases

    • Baker Lake (Hamlet) v. Canada (Minister of Indian Affairs and Northern Development) [1979] 1 F.C. 487 (T.D.).
  • Broadcasting and Telecommunications

    • Capital Cities Communications Inc. v. Canada (Radio, Television & Telecommunications Commission), [1978] 2 S.C.R. 141 – Regulation of cross-border broadcasting.
    • Challenge Communications Ltd. v. Bell Canada [1979] 1 F.C. 857 (Fed.C.A.) – CRTC’s jurisdiction to regulate telephone inter-connection.
    • Association for Public Broadcasting in BC v. CRTC, [1981] F.C. 524 – CRTC’s jurisdiction over broadcast licenses.
    • CRTC v. CTV Television Network et al, [1982] 1 S.C.R. 530 – CRTC’s jurisdiction over content of television programming.
    • Wah Shing Television & Partners Limited Partership and Chinavision Canada Corp. (1984), 13 D.L.R. (4th) 75 (Ont.H.C.) – Jurisdictional limits of Provincial Superior Courts over CRTC decisions.
    • Bell Canada v. Unitel Communications Inc., [1993] 1 F.C. 669 (Fed. C.A.) – CRTC’s jurisdiction to regulate long-distance telephone service.
    • British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739 – Jurisdiction of CRTC and Provincial Labour Tribunals to regulate the installation of television cables on telephone lines.
    • Telecommunications Workers Union v. CRTC et al, [1995] 2 S.C.R. 781 – Legality of CRTC’s procedural practices.
    • Mahar v. Rogers Cablesystems Ltd. (1995), 25 O.R. (3d) 690 (Ont.Gen.Div.)- Discretionary jurisdiction of Provincial Supreme Courts relating to interference with cable service fees.
    • Federation of Canadian Municipalities v. AT&T Canada Corp [2003] 3 F.C. 379 (F.C.A.) 200 – Federal/Provincial jurisdiction over telecommunication facilities under municipal roads.
    • Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers (2004), 240 D.L.R. (4th) 193 (S.C.C.) – copyright and the Internet.
    • Edmonton (City) v. 360 Networks Canada Ltd. [2007], 4 F.C.R. 747 (F.C.A.)
      - Jurisdiction of CRTC over transmission lines in municipal subways.
    • Canadian Radio-television and Telecommunications Commission, (2010), 322 D.L.R. (4th) 337; – Whether Internet Service Providers are regulated under the Broadcasting Act.
  • Class Actions

    • Heather Leigh Munro v. Bausch & Lomb Inc. et al, Court File No. 22610/96 – Counsel in one of the first Ontario class actions certified for settlement purposes.
    • Carom v. Bre-X Minerals Ltd. (1998) 20 C.P.C. (4th) 163; 41 B.L.R. (2d) 246; (1999), 43 O.R. (3d) 441; (1999), 44 O.R. (3d) 173 (S.C.J.) – Counsel in one of the first securities class actions.
    • Smith v. Brockton (Municipality) et al, Court File No. 00-CV-192173CP: Judgment dated March 19, 2001 (unreported) – Counsel for the Province of Ontario in the Walkerton class action.
    • 1176560 Ontario Limited et al v. The Great Atlantic & Pacific Company of Canada (2002), 62 O.R. 535; (2004), 70 O.R. (3d) 182 (Div. Ct.) —Certification of franchisee class action.
    • Axiom Plastics Inc. v. E.I. DuPont Canada Company (2007), 87 O.R. (3d) 352; (2008), 90 O.R. (3d) 72 (Div. Ct.) — Certification of price fixing class action.
    • Frohlinger v. Nortel Networks Corp., (2007) 40 C.P.C (6th) 62; – Approval of Class Action settlement.
  • Commercial, Corporate and Securities Law

    • Newfoundland (Attorney-General) v. Churchill Falls (Labrador) Corp. (1983), 145 A.P.R. 181; 168 A.P.R. 91; [1988] 1 S.C.R. 1085 – Defence of claim by Newfoundland to recall the power sold from Churchill Falls.
    • Armak Chemical Ltd. v. Canadian National Railway Co. (1986), 7 C.P.C. (2d) 273 (Ont. H.C.); (1991), 5 O.R. (3d) 1 (Ont. C.A.) – Liability for railway operations.
    • Walter E. Heller Financial Corp. v. American General Supply of Canada (1969) Ltd. (1986), 56 O.R. (2d) 257 (Ont. C.A.) – Ownership of assets of an insolvent debtor.
    • Report on the Implications for the Canadian Capital Markets of the Provision by Financial Institutions of Access to Discount Brokerage Services – October 31, 1983 – Hearings before the Ontario Securities Commission relating to the banking industry’s entitlement to undertake discount brokerage services.
    • C.T.C. Dealer Holdings Ltd. and Ont. Securities Commission (1986), 59 O.R. (2d) 79 (Div.Ct.) – Ontario Securities Commission and Divisional Court proceedings relating to the attempted takeover of Canadian Tire Corporation.
    • Olympia & York Enterprises Ltd. v. Hiram-Walker Resources Ltd. (1987), 59 O.R. (2d) 254 at 255 (H.C.) – Counsel to Hiram-Walker in the take-over battle relating to that company.
    • Morton v. Asper (1988), 55 Man. R. (2d) 61 – Dispute over the control of Global Television.
    • Counsel in several important oppression and shareholder remedy actions including: Palmer v. Carling O’Keefe Breweries of Canada Ltd. (1989), 67 O.R. (2d) 161 (Div.Ct); GATX Corp. v. Hawker Siddeley Canada Inc. (1996), 22 B.L.R. (2d) 25; Lei v. Noble China Inc. (1996), 34 B.L.R. (2d) 172 (Ont.Gen.Div.); and Pente Investments Management Ltd. v. Schneider Corp. (1998) 43 B.L.R. (3d) 46; 42 O.R. (3d) 177 (Ont.C.A.).
    • Canadian Pacific Ltd. (1990), 72 O.R. (2d) 545; (1990), 73 O.R. (2d) 212 (H.C.) – Arrangement re: Canadian Pacific.
    • Trizec Corp., [1994] 10 W.W.R. 127 (Alta.Q.B.) – Restructuring of Trizec Corp.
    • Instinet Corporation (1995), 18 OSCB 5439 –OSC proceedings relating to the registration of computerized trading systems in Canada.
    • Scintilore Explorations Ltd. v. Larch, (2000) 48 B.L.R. (2d) 248; 107 O.T.C. 161; – Alleged fiduciary duty relating to the staking of the mining claims.
    • McBride Metal Fabricating Corp. v. H & W Sales Company Inc. (2002) 59 O.R. (3d) 97, – Alleged fiduciary duty relating to the termination of agency contract
    • Niewald v. Thomson, Rogers [2003] O.J. No. 2798; (2003) Can LII 5798 (Ont. S.C.); -Convenient form for third party claims against foreign law firm.
    • A v. Ontario Securities Commission, [2006] 141 C.R.R. (2d) 79; 144 C.R.R. (2d) 281 – Application of the Charter to officer’s duty to testify before securities commissions.
    • Jurisdiction of Ontario Court in relation to contract and oppression claims: Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp. (2003), 63 O.R. (3d) 431 (C.A.); ABN Amro Bank NV v. BCE Inc. (2004), 44 C.B.R. (4th) 25, 1, 25; (Ont. S.C.); also (2004) 44 C.B.R. (4th) 1; (2003) CanLii 64276; BNP Paribas (Canada) v. BCE Inc. (C.A.) 559 (Can LII) (Ont. C.A.)
    • Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp. (2008), 300 D.L.R. (4th) 577, (Man. Q.B.) – Limitation, fair value, fiduciary duty and res judicata principles in relation to oppression claim.
    • HSBC Securities (Canada) Inc. v. Davies, Ward & Beck [2004] O.T.C. 816; (2004), – Duty of care of solicitor to advise of limitation period in fidelity bond.
    • Mun Realty Inc. v. Ideal Construction Co. Ltd. (2005), 11 B.L.R. (4th) 148 (Ont. S.C.)
      - Derivative and dissent rights arising from shareholders’ and directors’ meetings.
  • Constitutional Law

    • Capital Cities Communications Inc. v. Canada (Radio, Television & Telecommunications Commission), [1978] 2 S.C.R. 141.
    • Moore v. Johnson, [1982] 1 S.C.R. 155
    • CRTC v. CTV Television Network et al, [1982] 1 S.C.R. 530.
    • Upper Churchill Water Right’s Revision Act, 1980, [1984] 1 S.C.R. 297.
    • Newfoundland (Attorney-General) v. Churchill Falls (Labrador) Corp. [1988] 1 S.C.R. 1085.
    • British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739.
    • Telecommunications Workers Union v. CRTC et al, [1995] 2 S.C.R. 781.
    • Provincial Court Judges [1997] 3 S.C.R. 3.
    • Mississauga (City) v. Greater Toronto Airports Authority (2000), 50 O.R. (3d) 641
  • Construction and Procurement Law

    • Crump Mechanical Contracting Ltd. v. Toronto-Dominion Centre Ltd., [1977] 1 S.C.R. 25 – Owner’s liability for contractor’s cost of preparing estimate.
    • DaSilva v. Toronto (City of) (1997), 33 O.R. (3d) 43; (1997) 99 O.A.C. 59; (1997) 39 M.P.L.R. (2d) 188 – Powers of building inspector relating to demolition under City by-law.
    • Anderson Consulting v. Canada (Attorney General) (2001), 150 O.A.C. 177, 2001 Can LII 8587 (Ont. C.A.)
      Alleged conspiracy and negligent misrepresentations in relation to government procurement contract
    • Author of Goldsmith on Canadian Building Contracts (4th ed.)
  • Copyright

    • Pro Arts Inc. v. Campus Craft Ltd. (1980), 28 O.R. (2d) 242 – Copyright and posters, punitive damages.
    • CCH Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 – Copyright and electronic publishing.
    • Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, [2004] 2 S.C.R. 427 – Copyright and the Internet.
    • Robertson v. Thomson Corp., [2006] 2 S.C.R. 363 – Copyright and electronic publishing.
  • Environmental Law

    • Canadian National Railway Co. v. Ontario (Director, Environmental Protection Act) (1992), 87 D.L.R. (4th) 603 (Ont. C.A.) – Responsibility of owners and mortgagees for environmental clean-up.
    • 1992 and 1993 – Counsel to Atomic Energy of Canada Limited in hearings of the Ontario Environmental Assessment Board for approval of Ontario Hydro’s 25-year plan.
    • Labrador Inuit Assn. v. Newfoundland (Minister of Environment and Labour) (1997), 152 D.L.R. (4th) 50 (Nfld.C.A.) – Environmental assessment of the Voisey’s Bay Project.
  • Government and Public Authorities: Contracts and Conduct

    • Newfoundland (Attorney-General) v. Churchill Falls (Labrador) Corp. (1983), 145 A.P.R. 181; 168 A.P.R. 91; [1988] 1 S.C.R. 1085 – Defence of claim by Newfoundland to recall the power sold from Churchill Falls.
    • Libbey Canada v. Ontario (Ministry of Labour) (1999), 42 O.R. (3d) 417 (C.A.); – Purchasers statutory liability for vacation pay
    • Registrar, Alcohol and Gaming Commission of Ontario v. Arena Entertainment (2007), 228 O.A.C. 287 – Powers of Alcohol and Gaming Commission in relation to applicant’s past conduct
    • Anderson Consulting v. Canada (Attorney General) (2001), 150 O.A.C. 177(C.A.) – Alleged conspiracy and negligent misrepresentations in relation to government procurement contract
    • Freeman-Maloy v. Marsden (2006), 79 O.R. (3d) 401, (C.A.) – Whether the tort of misfeasance in public office applies to universities
    • Rahall v. Superintendent of Financial Institutions, [1999] O.J. No. 3898; (C.A.) – Convenient form for actins against governmental authority
    • Soverign Life Insurance Co. v. Canada (Minister of Finance) (1997), 135 F.T.R. 81 (F.T.) – Whether Minister of Finance had improperly fettered his discretion or delegated his authority under the Insurance Companies Act
    • Payne v. Wilson (2002), 162 O.A.C. 48, 2002 Can LII 45002 (Ont. C.A.) – Whether the legality of the government’s decision to sell shares in public utility was rendered moot by subsequent legislation.
    • Del Zotto v. M.N.R. [2000], 4 F.C. 321 (F.C.A.) – Whether a hearing officer’s decision under the Income Tax Act was illegal based on grounds of non-disclosure and bias
  • Insurance Law

    • Guarantee Co. of North America v. Gordon Capital Corp. [1993], 3 S.C.R. 423 – Limitation period in fidelity bond
    • Soverign Life Insurance Co. v. Canada (Minister of Finance) (1997), 135 F.T.R. 81 (F.T.) – Whether Minister of Finance had improperly fettered his discretion or delegated his authority under the Insurance Companies Act
    • Dunn v. Chubb Insurance Co. (2010) 97 O.R. (3d) 701; (1999) 75 C.C.L.I. (4th) 29; (2009), ONCA 538 (Ont. C.A.) – Allocation clause in directors’ and officers’ insurance policy.
  • Municipal Taxation

    • Dist. Assessor, Cochrane v. Trans-Canada Pipelines, [1971] S.C.R. 257.
    • Xerox v. Regional Assessment Comm., [1981] 2 S.C.R. 137.
  • Supreme Court of Canada

    • Reference re Federal Courts Act (Canada):  In the Matter of the Broadcasting Act, 2012 SCC 4 – Whether Internet Service Providers are subject to the Broadcasting Act.
    • Dist. Assessor, Cochrane v. Trans-Canada Pipelines, [1971] S.C.R. 257 – Municipal assessment.
    • R. v. Imperial Oil Limited, [1974] S.C.R. 623 – Damage to underwater pipeline.
    • Crump Mechanical Contracting Ltd. v. Toronto-Dominion Centre Ltd., [1977] 1 S.C.R. 25 – Construction law.
    • Capital Cities Communications Inc. v. Canada (Radio, Television & Telecommunications Commission), [1978] 2 S.C.R. 141 – Regulation of cross-border broadcasting.
    • Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245 – Labour relations.
    • Upper Churchill Water Right’s Revision Act, 1980, [1984] 1 S.C.R. 297 – Inter-provincial rights.
    • Xerox v. Regional Assessment Comm., [1981] 2 S.C.R. 137 – Municipal assessment.
    • CRTC v. CTV Television Network et al, [1982] 1 S.C.R. 530 – CRTC’s jurisdiction over content of television programming.
    • Moore v Johnson, [1982] 1 S.C.R. 155 – Constitution law re: fishing.
    • Newfoundland (Attorney-General) v. Churchill Falls (Labrador) Corp. [1988] 1 S.C.R. 1085 – Government contract.
    • British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739 – CRTC’s jurisdiction over installation of cable television.
    • Telecommunications Workers Union v. CRTC et al, [1995] 2 S.C.R. 781 – CRTC’s procedural practices.
    • Provincial Court Judges [1997] 3 S.C.R.3) – Compensation for judges.
    • Soulos v. Korkontzilas, [1997] 2 S.C.R. 217 – Fiduciary duties.
    • Guarantee Co. of North America v. Gordon Capital Corp. [1999] 3 S.C.R. 423 – Fidelity bonds.
    • CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 – Copyright and legal publishing.
    • Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, [2004] 2 S.C.R. 427 – Copyright and the Internet.
    • Robertson v. Thomson Corp., [2006] 2 S.C.R. 363 – Copyright and electronic publishing.

Mr. Heintzman is a member of the Canadian Bar Association, the Advocates’ Society, the Inter-American Bar Association, the International Bar Association and l’Association des juristes d’expression française de l’Ontario. He is a fellow of the American College of Trial Lawyers and of the International Academy of Trial Lawyers.

Mr. Heintzman is a past Trustee of the Canadian Outward Bound Wilderness School and Youtheatre Ontario, past Chairman of the Upper Canada College Association and of the Upper Canada College Foundation, a past Governor of Upper Canada College; and past President of the Harvard Club of Toronto. He was a founding summer counsellor and is a past director of Camp Oochigeas Oncology Camp for Children. He is a past director of Alliance Française (Toronto) and the National Youth Orchestra of Canada.