Alan B. Merskey
Norton Rose Fulbright Canada LLP
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Alan Merskey is a commercial litigator with a particular focus on technology, construction, insolvency and corporate disputes. His substantive and procedural experience in these industry sectors informs his overall strategic approach to complex commercial litigation.
In technology litigation, Mr. Merskey’s experience includes acting for both vendors and customers in software development, project management, delivery and infringement disputes. His background encompasses claims in multi-year outsourcing relationships in the financial/IT sector, as well as licensing and copyright infringement claims, and disputes over enterprise resource planning tools.
In the construction sector, Mr. Merskey acts for owners, contractors, and sub-trades across the spectrum of public and private sector disputes, many of which reflect the same project planning disciplines as technology disputes. He is primary external disputes counsel to the general contractor Carillion Canada Inc. and over the past several years has acted for Carillion in litigation with the TTC, developers, sub-trades, the Ministry of Transportation of Ontario, and various municipalities in disputes over construction of infrastructure and building assets.
Applying the financial considerations and measurements common to these large project disputes, Mr. Merskey also has extensive insolvency litigation experience, having acted as counsel to court officers, debtors and creditors in a wide range of contested restructuring matters, including many of the major public and private company restructuring proceedings of the last 15 years, such as the liquidation of Nortel Networks.
Within the broad areas of corporate and commercial litigation, Mr. Merskey has acted as counsel in proceedings stemming from complex contractual disputes, takeover applications, share purchase and other merger and acquisition vehicles, oppression and shareholder’s rights, duties of directors and officers, product liability, stockbrokers’, accountants’ and solicitors’ negligence, and business torts, including defamation and interference with economic relations claims.
Mr. Merskey has appeared before all levels of courts in Ontario, as well as the Supreme Court of Canada, and various administrative tribunals and arbitration panels. He articled as a law clerk to the Chief Justice of the Ontario Superior Court of Justice.
Mr. Merskey is Toronto chair of our litigation group.
- Ontario 1999
Clients for whom Mr. Merskey has acted include:
- Nortel in an $US85 million software infringement claim with cross-border components, brought by a software developer and vendor
- Epicor Software Corporation in defence of claims relating to the purchase and implementation of enterprise resource planning software
- Nortel in connection with Ministry of the Environment orders for ongoing site remediation activities notwithstanding Nortel’s court-supervised insolvency proceedings
- Carillion Canada Inc. in a series of linked claims with the Ontario Ministry of Transportation over multi-year roads infrastructure projects
- SNC-Lavalin in arbitration proceedings over an industrial construction project
- Shoppers Drug Mart Inc. in proceedings before the Financial Services Commission of Ontario and Ontario Superior Court of Justice relating to a pension plan partial wind-up and related supplementary pension plan
- Deloitte & Touche Inc. in its capacity as bankruptcy trustee to I. Waxman & Sons on various issues, including claims for creditor subordination
- The debtor-in-possession lenders in the Companies’ Creditors Arrangement Act proceedings of the Cash Stores Financial Services Inc, and to Coliseum Capital Management in its capacity as first-lien lender
- Diageo Canada Inc. in proceedings with Vivendi Canada Inc. before the Ontario Superior Court of Justice relating to Quebec pension assets and related inter-jurisdictional concerns
- Canadian Legal Lexpert Directory, 2020: recommended in Insolvency & Financial Restructuring - Insolvency Litigation
- Best Lawyers in Canada: Construction Law, 2021
- Canadian Bar Association
- Law Society of Upper Canada
- Advocates’ Society