Emily A. Kirkpatrick*

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*Practicing through a law corporation.

Emily's Contact Details

604.283.7981

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Krista Whitelaw Paralegal Assistant

604.283.8061

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Biography

Emily Kirkpatrick maintains a general civil litigation and administrative practice, with a particular focus on corporate, commercial and class action matters.

She has experience working with clients on a wide range of issues including shareholder disputes, class action defense, contract disputes, product liability, employment issues, environmental matters, franchise agreements, leases, debt recovery, and municipal and other government relations. Emily has also advised and represented clients involved in various regulated industries including securities, pharmaceuticals, and energy. She has appeared as counsel at various levels of court in BC and Ontario, as well as before the Federal Court, and administrative and regulatory tribunals.

Emily’s mediation and arbitration experience includes both domestic and international commercial matters on a range of issues including securities, real property disputes, and licensing agreements.

Emily sits on the editorial board of the Commercial Litigation and Arbitration Review and is a member of the Advocates Society and the Canadian Bar Association. She is past Vice Chair of the British Columbia Regional Advisory Committee, National Standing Committee, and Young Advocates’ Standing Committee of the Advocates’ Society, and a past member of the Law Reform, Court Services, Government Relations, and Resolutions and Bylaws Committees of the Canadian Bar Association, BC Branch.

Emily is a regular contributor to various CLE programs and publications, including in the areas of class actions, expert evidence, professional regulation, and arbitration. She is a former clerk of the British Columbia Supreme Court and a past participant in the British Columbia Inns of Court Program.

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Publications

  • “Anatomy of a Trial” in Civil Trial Handbook, CLEBC, 2021 and 2018 (co-authored with Owen James)
  • “Pre-Trial Disclosure of Expert Opinions and Related Matters”, in Expert Evidence in British Columbia Civil Proceedings (CLEBC, 2018 and 2015) (co-authored with Mike Stephens)
  • “Class Actions and Waiver of Tort—Where Do We Go from Here?”, Class Action Defence Quarterly, vol. 4, no. 2 | December 2009 (co-authored with Andrew Bernstein)
  • “Taub and Dass: Can the IDA/IIROC Discipline Former Members”, The Advocates’ Quarterly, vol. 35, no. 3 | April 2009 (co-authored with John A. Fabello)

Related Practice Areas

Administrative & Public Law Appellate Practice Class Actions Commercial Corporate & Shareholder Environmental Product Liability & Complex Torts Professional Liability Real Estate Regulatory Securities Trusts

Benchmark Litigation, recognized since 2018

  • 2024 – Top 100 Women in Litigation – Canada
  • 2024 – Litigation Star
  • 2022 – Top 100 Women in Litigation – Canada
  • 2022 – Litigation Star – British Columbia
  • 2018 – 2021 – Future Litigation Star – Canada
  • 2018 – 2021 – 40 & Under List – Canada

Chambers Canada, ranked since 2022

  • 2024 – Litigation, General Commercial
  • 2022 – Up and Coming – Canada

Legal 500 Canada, recognized since 2023

  • 2023 – Next Generation Partner – British Columbia

Lexpert Canada, recognized since 2022

  • 2023 – Leading Lawyers to Watch, Litigation – Corporate Commercial
  • 2022 – Rising Stars Award Winner
  • JD, University of Toronto (2007)
  • BA (Hons), Queen’s University (2004)
  • Advocates’ Society
  • Canadian Bar Association
  • British Columbia, 2012
  • Ontario, 2009

Notable Cases

Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29

Ken McEwan, K.C. and Emily Kirkpatrick were successful on behalf of the respondent, Crystal Square Parking Corp. in upholding the decision of the British Columbia Court of Appeal.

The case concerned a dispute over the obligation of a strata corporation to pay for parking as provided for in an agreement that had been executed at the time of the property’s development (before the strata existed). At trial, the court had rejected Crystal Square’s argument that the strata was bound by any agreement. On appeal before the British Columbia Court of Appeal, Ken and Emily successfully argued that the strata was bound by a post-incorporation contract entered into on the same terms as the pre-incorporation agreement. In upholding the decision of the British Columbia Court of Appeal, the Supreme Court of Canada (Rowe J., dissenting in part) clarified and confirmed the law of pre-incorporation contracts, as well as the law in respect of contract formation, more generally. The Court also addressed the interplay between the Strata Property Act and contract law, and between contract law and real covenants, respectively. The full reasons can be found here.

Oei v. Hui, 2020 BCCA 214

Ken McEwan, K.C. and Emily Kirkpatrick successfully represented the appellant/defendants, Terry Hui and Concord Pacific Acquisitions, in overturning a decision on an application to strike the plaintiffs’ claim.

The application and appeal concerned the tort of abuse of process the elements on which had long been the source of uncertainty in the province. Ken and Emily successfully argued that a plea of “knowing falsity” cannot be relied upon to transform a proper claim into an improper one and that to do so would, among other things, impinge on the protection afforded by absolute privilege. They also successfully advanced the position that the “overt act” was a requisite element of the tort, notwithstanding some expressions of judicial uncertainty over the past three decades. Read the case here.

Este v. Esteghamat-Ardakani, 2020 BCCA 202

Ken McEwan, K.C. and Emily Kirkpatrick successfully represented the appellant on this appeal from the granting of a mandatory interlocutory injunction.

The application below was made by one registered tenant in common against the other to compel demolition and rebuilding of a home on the jointly-owned property.  The Court of Appeal ruled that the chambers judge had erred in both fact and law in granting the injunction, concluding that – given their relationship as co-tenants – “there simply was not a basis in law for the judge to find there is a strong prima facie case that [the respondent] could compel [the appellant] to participate in any fashion in construction of a new residence.  Indeed, there is not even a serious issue to be tried.”  See case here.

Yi Teng Investment Inc. v. Keltic (Brighouse) Development Ltd., 2019 BCCA 357

Ken McEwan, K.C., Emily Kirkpatrick and Samantha Chang, acting on behalf of the defendant developer Keltic, were successful in having the plaintiff’s appeal dismissed.

The appeal related to Keltic’s successful application under s. 215 of the Land Title Act to discharge a certificate of pending litigation filed by the plaintiff against Keltic’s residential and commercial development project. The plaintiff alleged that it entered into a purchase and sale agreement with Keltic for a portion of the commercial space in the development and filed a certificate of pending litigation against the entire commercial property. In dismissing the appeal, the Court of Appeal confirmed that the plaintiff’s claim to a present interest in land “to be subdivided” was “precisely what is prohibited by s. 73(6) of the Land Title Act”. The full reasons of the Court of Appeal can be found here.    

Markin v. Fasken Martineau DuMoulin LLP, 2019 BCCA 275

July 26, 2019 Ken McEwan, K.C., Emily Kirkpatrick and Kelly Ann Maw were successful in arguing that bond subscription funds did not constitute "deposits" or trust funds under the Real Estate Development Marketing Act, S.B.C. 2004, c. 41 [REDMA] and upholding the trial judgment which dismissed the claim against their client. The appeal involved issues of both statutory interpretation of the proper construction of provisions of REDMA and contract interpretation of the agreements entered into by the parties. While the parties provided submissions on multiple issues and arguments on the appeal including the proper interpretation of the definition of “deposit” and s. 18 “Handling deposits” under REDMA, as well as s. 96 “Jurisdiction of court to relieve trustee of breach of trust” under the Trustee Act, [RSBC 1996] c. 464 , the unamimous Court found in favour of the respondent on the threshold issue and dismissed the appeal on that basis. The Court concluded that the bond subscription funds that were deposited in trust with Fasken Martineau DuMoulin LLP and then released to the developer for use in the construction of the Oak Bay Beach Hotel, were not in the nature of deposits under REDMA. See the Reasons for Judgment here

Concord Pacific Acquisitions v. Hong Leong Oei et. al., 2019 BCSC 1190

This matter involved a four-month trial concerning a “Heads of Agreement” entered into between the parties and whether it gave rise to contractual obligations in respect of a proposed transfer and development of the Plaza of Nations land, or obligations of good faith. Read: Concord Pacific Acquisitions v. Hong Leong Oei et. al., 2019 BCSC 1190

Este v. Esteghamat-Ardakani, 2018 BCCA 290

Ken McEwan K.C. and Emily Kirkpatrick were successful in having a ruling dismissing the plaintiff’s case as an abuse of process upheld on appeal.

At the close of the plaintiff’s case at trial, Ken brought a combined no-evidence and abuse of process application on the basis that the plaintiff’s position claiming beneficial ownership of assets she had previously disclaimed in a family proceeding constituted an abuse. A unanimous division of the Court of Appeal upheld the trial judge’s decision. Leave to the Supreme Court of Canada was sought, but denied. A full copy of the Court of Appeal’s reasons for judgment is available here.

B.I. Incorporated et al. v. Au et al., 2017 BCSC 2476

Emily Kirkpatrick was successful on behalf of the petitioners in having letters rogatory from the Supreme Court for the County of Onondaga, State of New York enforced.

The underlying proceedings were claims for product liability in respect of an electronic monitoring bracelet. The letters rogatory sought examination by deposition of an engineer resident in British Columbia. The court concluded that the testimony sought was relevant, necessary, and not unduly burdensome, rejecting arguments that it could have been obtained through one of the other witnesses and rejected the submission that a comparative analysis of the procedure for examinations in British Columbia and New York was a relevant consideration. The full reasons can be found here.

Basha Sales Co. Ltd. v. Adera Equities Inc., 2017 BCSC 1715

Successfully represented the Adera Group and executives in bringing application for special costs arising from summary trial dismissal of a claim by owners of a residential development against the developer and adjacent property owners for additional parking stalls in a shared underground parking facility.

See Basha Sales Co. Ltd. v. Adera Equities Inc., 2017 BCSC 1715

Arkansas Teachers Retirement System v. Lions Gate Entertainment Corp., 2016 BCSC 432

Successfully represented Lions Gate in defeating an application to bring a derivative action in the company’s name against current and former directors and officers, arising out of the attempted takeover of Lions Date by Carl Icahn in 2010.

Ken McEwan, K.C. and Emily Kirkpatrick successfully defeated a shareholder application to bring a derivative action against current and former directors and officers of Lions Gate.  The proceeding arose out of circumstances surrounding the attempted takeover of Lions Gate by Carl Icahn in 2010. Ken McEwan, K.C. previously acted for bondholders in the underlying proceedings wherein the Icahn group challenged the deleveraging of Lions Gate through conversion of bonds while the Icahn Group's efforts to achieve a hostile takeover of Lions Gate were ongoing : see Icahn Partners LP v. Lions Gate Entertainment Corp. et al, 2011 BCCA 228 See Arkansas Teachers Retirement System v. Lions Gate Entertainment Corp., 2016 BCSC 432  

Zellstoff Celgar Limited Partnership v. British Columbia Hydro and Power Authority, 2015 BCCA 497

Concerning the British Columbia Utilities Commission’s jurisdiction and reasonableness in approving third party restrictions imposed through a power purchase agreement between BC Hydro and FortisBC.

See Zellstoff Celgar Limited Partnership v. British Columbia Hydro and Power Authority, 2015 BCCA 497

Fanshawe College v. AU Optronics, 2015 ONSC 3414

In proposed class proceeding on behalf of purchasers of liquid crystal display products, successfully opposed motion to add a new plaintiff on the basis that the proposed plaintiff’s claims were not captured by the existing pleading and were statute-barred.

See Fanshawe College v. AU Optronics, 2015 ONSC 3414
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