LawyerProfile

  • Leading litigator and business advisor

    Ken Fitz
    LITIGATION, PROFESSIONAL LIABILITY

    Assisting clients with shareholder and contract disputes, professional liability issues
    and disciplinary proceedings

Contact Ken Fitz

BV Distinguished Lawyer, Martindale Hubbell

Partner

OFFICE: Edmonton

DIRECT LINE: 780.482.9231

EMAIL: kfitz@mross.com

PRACTICE AREAS:
      Construction
      Health
      Litigation
      Professional Liability

INDUSTRY GROUPS:
      Construction
      Health

LAW SCHOOL: University of Alberta

BAR ADMISSIONS: Alberta (1997)

Assistant: Kim Wasylyniuk

Assistant Phone: 780.482.9219

Assistant Email: kwasylyniuk@mross.com

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A senior partner with McLennan Ross, Ken has a broad range of litigation experience in all levels of court in Alberta, the Federal Court of Canada as well as in Saskatchewan. He is currently the Chair of the Edmonton Commercial Litigation Practice Group.

Ken has two main areas of practice. He is a commercial litigator who has successfully participated in numerous litigation cases involving: shareholder disputes, contract interpretation, medical malpractice, directors' liability, employment litigation, intellectual property litigation, contractor disputes and construction litigation (see Experience tab for an annotated list of the range of litigation matters Ken has been involved in.

The second main area of Ken's practice concerns professional liability matters. Ken is actively involved in representing a broad cross-section of professionals facing disciplinary matters. He has appeared before the Institute of Chartered Accountants of Alberta, the College of Physicians and Surgeons of Alberta, the Alberta College of Psychologists, the Alberta College of Pharmacists, the Alberta College of Social Workers and the Alberta Veterinary Medical Association. Ken's involvement in these matters has included representation of professionals at the disciplinary stage and tribunal hearing stage as well as the investigative stage of disciplinary proceedings. In a number of instances, the professional disciplinary matters have given rise to concurrent civil litigation proceedings for which Ken has also provided representation to the Defendant professional (see Experience tab for an illustrative list of the types of professional liability matters that Ken has been involved in).

In addition to Ken’s commercial litigation and professional liability experience, he has also practiced in a corporate/commercial setting where he was involved in various commercial lending transactions, security matters and regulatory projects. Complemented by his MBA from York University, Ken has a strong business background, which includes managerial experience with the Canadian Imperial Bank of Commerce (CIBC), and work in a structured finance capacity on a joint venture project between the CIBC and Wood Gundy.

Education

  • LL.B., University of Alberta
  • MBA, York University
  • B.A. Economics, Queen’s University

Professional Associations and Awards:  

  • BV Peer Review Rated Lawyer, Martindale-Hubbell

Volunteer and Community Activities:

  • University of Alberta Law School - Moot Court Program
  • Chair (past), Board of Directors, Workshop West Theatre Company
  • Coach (past), Laurier Heights Junior High School - Senior Girls Team Volleyball
  • Volunteer (past), Northern Alberta Volleyball Club

1998726 Alberta Ltd v KIPS Land Development Ltd, 2018 ABQB 117

This litigation matter concerned allegations by the Plaintiff (represented by McLennan Ross) that the Defendants had breached its obligations to the Plaintiff with respect to the purchase of a property under the terms of the Letter of Intent. In this case, the Defendant did not provide the agreed upon payment, which was clearly outlined in the Letter of Intent, resulting in the discharge all of the Defendant’s claims to the property.

HRC Tool & Die Mfg Ltd. v. Naderi [various decisions below]

This litigation matter concerned allegations by the Plaintiff that the Defendants (represented by McLennan Ross) had breached fiduciary obligations owed to their former employer by setting up a competing business as well as allegations of contractual breach arising out of the individual Defendants' employment agreements. This matter proceeded to trial and the Plaintiff's claim against the individual and corporate Defendants was dismissed. This matter was then appealed by the Plaintiffs and heard in the Court of Appeal of Alberta in 2016, which ultimately ended in a second dismissal on the basis that there was insufficient evidence to establish any breaches of the Defendant’s fiduciary duty which gave rise to damages. Finally, the Plaintiffs submitted an application for leave to appeal to the Supreme Court of Canada, which was dismissed with costs on April 6, 2017.

HRC Tool & Die Mfg Ltd v Naderi, 2016 ABCA 334

HRC Tool & Die Mfg Ltd v Naderi, 2015 ABQB 437

H.R.C. Tool & Die Mfg. Ltd. v Naderi, 2013 ABQB 429

 

FIC Real Estate Fund Ltd. v. Phoenix Land Ventures Ltd., 2015 ABQB 318

This litigation matter involved an action advanced by the Plaintiff concerning the interpretation of a one page trust agreement. The Defendant disputed that the trust agreement gave the Plaintiff a property interest in the land at issue but instead argued that the Plaintiff was entitled to a 20% interest in a corporation that had been intended to develop a hotel property. The Plaintiff claimed that the $1,000,000 investment gave rise to a 20% interest in the subject land and buildings. The matter proceeded to trial and judgment issued in favor of the Plaintiff.

Krieter v. Alberta, 2014 ABQB 349

This litigation matter concerned allegations of environmental contamination advanced by the Plaintiff against a number of defendants. Shell Canada Ltd. brought an application to dismiss the Plaintiff's claim on the basis of unreasonable delay in the Plaintiff's prosecution of the action. The application was successful and the Plaintiff's claim was dismissed.

FIC Real Estate Fund Ltd v. Lennie,  2014 ABQB 105

This litigation matter concerned an application by the Plaintiff to hold one of the Defendants in civil contempt of Court arising out of the disposition of funds by the Defendant in the face of a Preservation Order. The issues in the action raised concerned (1) the knowledge of one of the Defendants as to the existence of the Preservation Order, (2) the obligations of a Defendant to maintain communications with his own counsel, and (3) the resulting implications for non-compliance with a Court Order.

Weatherford v. Addie, Europump, Artemis et al [various decisions below]

This ongoing multi-million dollar litigation concerns allegations by the Plaintiff that the Defendants misused confidential and proprietary information of the Plaintiff which gave rise to alleged significant damages spanning numerous years. This litigation raises various substantive allegations concerning intellectual property rights, contract rights and obligations, fiduciary obligations of departing employees and duties of confidence. In addition, the action concerned the intellectual property obligations of several parties in respect of co-developed intellectual property rights. The litigation has also addressed numerous procedural issues and generated thousands of electronic records produced by the various parties to this action. Questioning of the parties has been extensive and months of discoveries of the parties, including past and present employees, has been completed to date. The Defendants are numerous and include the competing corporation as well as former employees and suppliers to both competitors. The litigation is actively case managed and the Court’s assistance in dealing with the ongoing procedural and substantive issues which have arisen are reflected in the sample decisions below:

Weatherford Canada Partnership v. Artemis Kautschuk und Kunstoff-Technik GmbH, 2017, ABCA 110

Weatherford Canada Partnership v. Addie, 2016 ABQB 188

Weatherford Canada Partnership v. Addie, 2012 ABQB 533

Weatherford Canada Partnership v. Addie, 2012 ABQB 215

Weatherford Canada Partnership v. Addie, 2011 ABQB 562

Weatherford Canada Partnership v. Addie, 2009 ABQB 39

 

KOS Oilfield Transportation Ltd. v. Mitchell, 2010 ABCA 270

An Alberta Court of Appeal decision that resulted from an Order obtained by the former employer of three ex-employees which gave rise to injunctive relief including a prohibition on employment, return of confidential information and disclosure of all contacts made by the former employees with customers and former customers of the former employer.

Inland Concrete Limited v. Commonwealth Insurance Company, 2010 ABQB 600

A trial judgment related to litigation action for coverage under a builders’ risk policy of insurance arising out of a construction site remediation caused by a compacto pile failure at the NAIT ICT Centre.

Spar Aerospace Limited v. Aerowerks Engineering Inc., 2007 ABQB 543

This litigation concerned the efforts by three former employees to compete with their former employer, Spar Aerospace Limited. An Anton Piller Order had been obtained and this particular application dealt with the failure of the Defendants to comply with various aspects of the procedural Orders which followed the issuance and execution of the Anton Piller Order.

PCL Industrial Constructors Inc. v. United Brotherhood of Carpenters and Joiners of America, Local 1985, 2002 SKQB 173

A judicial review application of an interlocutory decision of the Labour Relations Board (Saskatchewan) on the ground that the applicant was denied a fair hearing contrary to the principles of natural justice.

Bre-X Minerals Ltd (Trustee of) v. Bennett Jones Verchere, 2001 ABCA 255

This decision of the Alberta Court of Appeal concerned an application by the trustee in bankruptcy of Bre-X Minerals Ltd. seeking to access documents that were protected by solicitor-client privilege. The application also dealt with the issue of whether the trustee in bankruptcy had the power to waive solicitor-client privilege of a bankrupt.

Carrington Petroleum & Fertilizers Ltd. v. Imperial Oil Ltd., 2001 ABQB 505

This litigation matter concerned the terms of a written agreement between a bulk fuel agent and Imperial Oil Limited and the rights and the resulting obligations of the parties during the term of and upon termination of that relationship. The action proceeded to trial and the Plaintiff’s claim was successful.

ITV Technologies, Inc. v. WIC Television Ltd., [2000] F.C.J. No. 67

A decision of the Federal Court of Canada concerning a taxation of costs arising out of a trademark expungement and infringement action.

369413 Alberta Ltd. v. Pocklington, 1998 ABQB 603

This decision concerned a procedural application brought by several parties seeking to have a claim dismissed for want of prosecution.

Ken is regularly called to appear on professional liability matters. Ken’s involvement with professional disciplinary matters include representation before the Institute of Chartered Accountants of Alberta, the College of Physicians and Surgeons of Alberta, the Alberta College of Psychologists, the Alberta College of Pharmacists, the Alberta College of Social Workers and the Alberta Veterinary Medical Association. Ken’s involvement in these matters has included representation of professionals at the tribunal hearing and disciplinary stage as well as the investigative stage of professional liability disciplinary proceedings.
 

Experience

Farhat v. College of Physicians and Surgeons of Alberta, 2014 ABQB 731

This professional liability matter concerned a foreign physician's application for licensure with the College of Physicians and Surgeons of Alberta. The applicant physician had been denied registration as a result of a failed Preliminary Clinical Assessment conducted by the College. That denial was the subject of an internal appeal at the College of Physicians and Surgeons of Alberta which upheld the denial of licensure for the applicant physician. That decision was then appealed by way of judicial review to the Court of Queen's Bench of Alberta where the denial of licensure was set aside and the applicant physician was granted a new assessment in light of a denial of procedural fairness.

Hearing into the conduct of Sonia Chahal, July 2014

This matter concerned a Pharmacist who faced disciplinary charges with the Alberta College of Pharmacists due to allegations of unprofessional conduct arising from an inadvertent oversight on the part of the Pharmacist. The matter proceeded to a hearing before the College.

Hearing into the conduct of Mr. Thai Chau, February 2014

This matter concerned a Pharmacist who faced disciplinary charges with the Alberta College of Pharmacists due to allegations of unprofessional conduct arising from, inter alia, the alleged non-compliance with an Aftercare Agreement. The matter proceeded to a hearing before the College.

Hearing into the conduct of Dr. Palaniswami Murthi

This matter concerned a Physician who faced disciplinary charges with the College of Physicians and Surgeons stemming from a complaint concerning his conduct with a former patient. The matter proceeded to a disciplinary hearing before the College.

Rennick & Di Pinto v. Institute of Chartered Accountants of Alberta, 2004 ABQB 570

This matter involved civil litigation proceedings as well as professional disciplinary matters before the Institute of Chartered Accountants. Both the civil litigation proceedings as well as the Institute of Chartered Accountants (Alberta) proceedings were intertwined and the application dealt with procedural issues relating to the interaction of these two concurrent proceedings.

Appeal of a Decision made by the Director under the Protection for Persons in Care Act

This matter concerned an appeal of a decision concerning allegations that a Care Centre had not provided appropriate care for a disabled patient. On appeal, the Director’s decision was set aside.

One of the benefits of his extensive trial experience is that Ken also recognizes that in some instances the interests of clients are better served if they can avoid the emotional toll, financial expense and the uncertainty of the courtroom. Ken is an active proponent of alternative dispute resolution where there are willing participants on both sides of a dispute. Unfortunately, it is often the case in litigation matters that both parties to the dispute are not willing to participate in an alternative dispute resolution process at least at the outset of the litigation. Nevertheless, Ken remains vigilant throughout the course of litigation for opportunities to try and resolve matters through the assistance of a neutral mediator or arbitrator.

Ken has successfully participated in numerous mediations and arbitrations concerning a broad range of litigation matters including construction disputes, shareholder disputes, landlord and tenant issues, partnership disputes and medical malpractice matters. Ken has participated in alternative dispute resolution matters throughout the province of Alberta as well as in California.

  • An Ounce of Prevention”, McLennan Ross Legal Counsel Newsletter
  • “Litigation and Spoliation of Evidence” Claims Canada

Call Ken Fitz

780.482.9231

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