Ken McEwan, K.C.*
*Practicing through a law corporation.
Ken McEwan practices as general counsel focusing on complex corporate-commercial litigation, class action litigation, commercial arbitration and administrative law at the trial and appellate levels, including the Supreme Court of Canada. He received the designation of King’s Counsel from the Attorney General of British Columbia in 2004. Martindale-Hubbell has given Ken a ranking of AV-Preeminent.
Chambers Canada consistently ranks Ken in Band 1 for dispute resolution and has noted he enjoys a stellar reputation … interviewees say he is “absolutely spectacular,” describing him as “incredibly detail-orientated” and “very talented” while Chambers Global quotes interviewees describing him as a “terrific lawyer” acclaimed for his handling of securities cases, and with a wealth of trial experience. In addition to his Band 1 Dispute Resolution ranking, he is ranked in Band 2 for Securities Litigation.
Ken was Benchmark Canada’s 2022 Canadian Trial Lawyer of the Year. He was previously recognized in seven of eight preceding years as British Columbia Litigator of the Year. Since 2017 he has been recognized as one of the top 50 trial lawyers in Canada.
For many years, Ken has been named in Lexpert’s Guide to the Leading 100 U.S./Canada Cross-border Litigators, as well as in the Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada. He is rated by Lexpert as most frequently recommended in corporate commercial litigation, and is recognized in product liability, director and officer liability, and securities litigation.
Ken is listed in the Legal Post Best Lawyers in Canada in the areas of securities law, corporate commercial and class action litigation as well as Who’s Who Legal: Litigation and Who’s Who Legal: Product Liability for 2020. Who’s Who Litigation says Ken “is highly praised for his excellent work on corporate and securities litigation…” and “renowned for his formidable work on class actions and dispute resolution.”
Ken is a past President of the International Society of Barristers. In 2020, he was the 56th and first non-American president of the organization, the membership of which is by invitation only, after rigorous peer and judicial review. He is a Fellow of the American College of Trial Lawyers, a Director of its Canadian Foundation, and a member of its ethics and professionalism committee. He is a former Director of the Advocates’ Society, as well as Chair of its national standing committee, and a Fellow of The International Academy of Trial Lawyers. He has been appointed by the Law Society of British Columbia to its committee on relations with the judiciary and was a long-standing member of the Attorney General’s rules revisions committee.
Ken is the author of the fourth edition of Sopinka on the Trial of an Action, a leading text on trial practice, including jury trials, published in 2020. He is an adjunct professor of law at the University of British Columbia Law School, teaching its advanced trial advocacy course. In recent years, he taught Dispute Resolution 2, covering arbitration and mediation at Thompson Rivers University. He is a past president of the Sopinka Cup Society which hosts the national finals of the Canadian law school trial moot competition in Ottawa and contributes regularly to both the Continuing Legal Education Society of British Columbia and the Advocates’ Society on topics related to litigation and arbitration. He chairs a panel of the British Columbia Inns of Court project which was established to foster professionalism among young lawyers.
Outside the courtroom, Ken also acts as both arbitrator and mediator of commercial disputes. He is a co-author of Commercial Arbitration in Canada: A Guide to Domestic and International Arbitrations published by Canada Law Book, annually updated, and which has been cited as authority in judgments across Canada. He is a contributing author to A Practitioner’s Guide to Commercial Arbitration, published by Irwin Law in September 2017. He is a member of the Chartered Institute of Arbitrators and the Western Canada Commercial Arbitration Society.
Ken is the managing partner of McEwan Partners, founded five years ago, twice recognized by Benchmark as Canadian Boutique of the Year, and three times as British Columbia Litigation Firm of the Year. He also provides consulting services to select clients.
- King’s Counsel 2004
- Benchmark: Top 50 Trial Lawyers in Canada, 2017-2022
- Benchmark Litigation – Canada Awards, Trial Lawyer of the Year, 2022
- Benchmark, Litigator of the Year in British Columbia, 2013-2016 and 2018-2020
- Most frequently recommended – Litigation – Corporate Commercial
- Repeatedly recommended – Litigation – Directors & Officers Liability, Securities, Product Liability,
- Lexpert/American Lawyer Guide to the Top 500 Lawyers in Canada – Litigation – Corporate Commercial, 2018, 2022, and 2023
- Leading Cross-Border Litigators, 2018
- Chambers Canada, British Columbia General Commercial, Band 1, 2022
- Chambers Canada, British Columbia Securities, Band 2, 2022
- Chambers Canada, British Columbia Dispute Resolution, Band 1, 2018
- Best Lawyers in Canada, 2020
- Lexology Who’s Who Legal
- Thought Leader: Commercial Litigation (Canada), 2023
- Rankings: Recommended – Canada, Commercial Litigation, and Product Liability Defence, 2023
- Who’s Who: Legal Litigation, 2018
- Who’s Who: Legal Product Liability, 2018
- LLB, University of British Columbia (1986)
- International Society of Barristers (President, 2020)
- Fellow, International Academy of Trial Lawyers
- Fellow, American College of Trial Lawyers
- Member, American College of Trial Lawyers “Legal Ethics and Professionalism Committee”
- Member, American College of Trial Lawyers, Gale Cup Committee
- Member, American College of Trial Lawyers, Sopinka Cup Committee
- Director, American College of Trial Lawyers Canadian Foundation
- Member, Chartered Institute of Arbitrators
- Director, Advocates Society, 2017-2020
- Adjunct Professor of Law, University of British Columbia
- Member, Canadian Bar Association, British Columbia Branch
- Member, Vancouver Bar Association
- Session Leader, Inns of Court Project
- Member, Committee on Relations with the Judiciary
- British Columbia (1987)
In Rogers v. Rogers Communications Inc., 2021 BCSC 2184, Ken McEwan, K.C., Emily Kirkpatrick and William Stransky successfully represented Edward Rogers, as the authorized representative of the majority shareholder, in a dispute as to the validity and effectiveness of a consent resolution he initiated to remove and replace five of Rogers Communications’ board members.
This case arose in the context of a corporate governance dispute. Rogers Communications, a British Columbia company, was originally controlled by Mr. Ted Rogers. Following his death, his voting shares were passed to the Rogers Control Trust, which controls approximately 97.52% of the Class A Voting Shares and approximately 9.89% of the Class B Non-Voting Shares, and of which Mr. Edward Rogers is the chair. Following a disagreement regarding the management of the company, Mr. Rogers submitted a written resolution replacing 5 of the company’s 14 directors and voted the control trust’s shares in support of it, relying on certain provisions of the British Columbia Business Corporations Act. The company’s management, with the support of certain overholding and remaining directors, suggested the resolution was “invalid” and argued that a duly called shareholders’ meeting was required.
In reasons issued on November 5, 2021, the Court concluded that the process by which Mr. Rogers obtained the consent resolution was available to him under the company’s Articles and the Act, ordered the company to confirm the replacement directors and all the related relief sought, and ordered costs be payable to Mr. Rogers by the company. In doing so, the Court interpreted for the first-time (a) certain provisions unique to British Columbia company law in Canada, including its definition of “consent resolution”, the guidelines and requirements for submitting such resolutions, and the validity and effect of such resolutions; and (b) the effect of a dual-class shareholder structure on such issues.
Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, 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). 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.
Yi Teng Investment Inc. v. Keltic (Brighouse) Development Ltd., 2019 BCCA 357, successful both on application and on appeal on behalf of the defendant developer seeking to discharge a certificate of pending litigation. Both the chambers judge and Court of Appeal concluded that the plaintiff’s claim gave rise to no “interest in land”.
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
In June 2017, Ken represented the Law Society of British Columbia in professional disciplinary proceedings concerning a lawyer’s receipt and disbursement of $26 million from offshore jurisdictions.
Ken successfully obtained a dismissal of the claim after five weeks of trial as an abuse of process.
Ken successfully led the defence of Fortress Paper Ltd. and Fortress Specialty Cellulose Inc. against a claim alleging knowing assistance in breach of trust, breach of confidence, and inducing breach of contract.
Ken successfully led the defence 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.
Successfully defended an application brought against a national law firm claiming a disqualifying conflict of interest.
Ken McEwan, K.C. successfully represented The Law Society of British Columbia in professional conduct proceedings relating to the handling of trust funds.
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.
Ken successfully brought an insufficient evidence motion when the plaintiffs’ case closed after 13 days of trial.
The plaintiff brought a claim for breach of contract against the defendant supplier, and the trial judge awarded damages for breach of contract. On appeal, while the trial judge’s finding of liability was upheld, the Court of Appeal reduced the damages award, finding that the trial judge had overvalued the plaintiff’s damages. Ken McEwan, K.C. acted for the defendant supplier. Read case here.
Successfully represented the respondent numbered corporation in an appeal concerning the scope and applicability of the implied undertaking rule.
Ken acted as counsel for Capital One Bank (Canada Branch) in an application to certify a class action against the credit card industry in Canada.
Ken McEwan, K.C. Successful for the Defendant Corporations in a Summary Trial Application to Recover Shares Forfeited under a Sunset Clause Provision in a Corporate Reorganization. The plaintiff held shares in a corporation which became the defendant corporation. Pursuant to a sunset clause in a plan of arrangement, the plaintiff was required to take action to ensure that his interests in the predecessor corporation flowed into the newly-formed corporations. The plaintiff failed to take any action despite repeated notice. Once the limitation period had expired and the plaintiff’s shares had been extinguished, the plaintiff brought a claim for the value of his now-extinguished shares. The defendants were successful on all grounds, and the claim was dismissed with costs. Read case here.
Ken McEwan, K.C. and Eileen Patel represented Cargill, and successfully opposed certification of a class action alleging anti-competitive behaviour in the market for high fructose corn syrup. The case was awarded the National Impact Case of the Year by Benchmark and was one of the top 10 litigation cases of the year as listed by Lexpert.
Acted for the defendant developer in a case regarding the interpretation of a provision in a contract of purchase and sale.
Ken successfully led the defence in opposing a certification application in a proposed class action concerning the purchase of development units in the Private Residences at the Hotel Georgia.
Piscedda Mining Construction International Inc. v. Crew Gold Corporation, 2011 YKSC 79
Ken McEwan, K.C., acting for the defendants, was successful in an application to have a breach of contract action stayed on jurisdictional grounds. The parties entered into a contract under which the plaintiff would operate a gold mine in Guinea, West Africa. The relationship between the parties subsequently broke down, and the plaintiff brought an action alleging misconduct relating to the operation of the mine. The defendants brought an application seeking to stay the action on jurisdictional grounds. The contract between the parties contained a forum selection clause that designated South Africa as the appropriate jurisdiction, and the parties had minimal connection to the Yukon. The Court substantially agreed with the defendants’ arguments, allowing the application and declining to assume jurisdiction.
Ken McEwan, K.C. acted for the respondent bondholder in defence of an oppression claim brought by an unsuccessful bidder in a proxy contest. The bondholder held significant debt in a media and entertainment corporation. The petitioner sought to set aside a series of transactions that resulted in the conversion of the bondholder’s debt to equity and the subsequent sale of that equity to an investment fund. The petitioner argued that these transactions were oppressive and unfairly prejudicial to the petitioner, as they diluted the petitioner’s holdings and thereby impeded a takeover claim. The court accepted the bondholder’s arguments that the transactions were in the best interests of the corporation, and dismissed the oppression claim.
Ken McEwan, K.C. successful in opposing the plaintiff’s summary trial application and instead having the matter set for trial. The dispute centered on an international business relationship between entities in Canada and the Czech Republic. The court accepted the defendants’ arguments that the matter was highly unsuitable for summary disposition.
Ken McEwan, K.C. argued successfully for the dismissal of an oppression claim brought against the directors of an asset management corporation. The founder of the corporation brought an oppression claim after the board effected an insider financing proposal that resulted in a dilution of the founder’s interest in the corporation. The court accepted Ken’s arguments that the insider financing was in the best interests of the corporation and that the directors fulfilled their fiduciary duties.
Ken McEwan, K.C. successful in an appeal of a British Columbia Supreme Court order striking the appellant’s third party notice issued against Her Majesty the Queen in Right of Canada. The underlying litigation was a class proceeding brought by purchasers of tobacco products alleging violations of consumer protection legislation. The appellants brought a third party notice against Canada, but it was struck by the Supreme Court on the basis that it was plain and obvious the claims against Canada could not succeed. The majority of a five-member panel of the Court of Appeal accepted Ken’s arguments that the Supreme Court had erred in striking the third party notice.
View all Ken's cases
McEwan Partners is proud to announce that Ken McEwan KC has been ranked among Lexology Who’s Who Thought Leaders in commercial litigation in Canada. He is one of only... Read more
McEwan Partners is proud to be listed in The Legal 500 Canada 2024 in the following categories: Dispute Resolution in British Columbia: (Tier 3) McEwan Partners Hall of Fame, ... Read more