Mark E. Fancourt-Smith*

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Mark's practice encompasses a broad range of commercial disputes, including technology and intellectual property litigation, protection of trade secrets, breaches of fiduciary obligation, and fraud. He has particular experience with injunctions, trade-mark protection, mining disputes involving confidential information, and the area of preservation and discovery of electronic documents and records in complex litigation. Mark has appeared as counsel in the Supreme Court of British Columbia, the British Columbia Court of Appeal, and in the Federal Court in addition to acting in private arbitrations and other alternative dispute resolution proceedings.

Mark is a regular contributor to Lawson Lundell’s Commercial Litigation and Dispute Resolution Blog, as well as the co-host of the podcast LawsonInsight, which features interviews and analysis in examining current trends and interesting issues emerging in the legal and business communities.

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Representative proceedings include:

Successfully defended claims in an arbitration alleging breach of non-competition provisions of a mortgage broker franchise agreement, and seeking damages of $3,000,000 and injunctions restraining alleged competition. The claims were dismissed in their entirety.
Successfully brought an action for breach of an option agreement, obtaining judgment by way of summary trial on an expedited basis for specific performance. The optionor was ordered to deliver title to certain mineral claims forthwith to the optionee, and the Court extended the option agreement for five years in order to permit the optionee to pursue a going public transaction, which it had been unable to during the period in which the optionor had failed and refused to deliver title to the claims. The mineral claims are estimated to contain significant recoverable amounts of gold and silver. Orogenic Gold Corp. v. Mill, 2023 BCSC 832
Successfully defended a statutory appeal of the decision of the Chief Gold Commissioner in respect of over ownership of over 1.75 million tons of waste rock and tailings, estimated to contain significant recoverable amounts of gold and silver. Skeena Resources Ltd. v. Mill, 2022 BCSC 2032
Obtained judgment in an oppression remedy proceeding for payment out to a minority shareholder of over $1,000,000 of sales proceeds that had been wrongfully retained by the corporation, and equalization of benefits wrongfully taken by the majority shareholder, together with redemption of the Petitioner’s shares to facilitate their exit from the business venture. Wu v. Emme Distributors Ltd. et al., 2022 BCSC 635
Obtained dismissal of two actions for want of prosecution in a significant environmental remediation matter. The plaintiff had alleged breach of remediation provisions of gravel extraction permits, in circumstances in which a Certificate of Possession holder of the land had run an unauthorized dump on the site since 2004 with the plaintiff’s knowledge, while excluding the defendants from the site. The relief sought by the plaintiff if successful, including, potentially, re-excavation, disposal of contaminated fill, remediation of the site, refilling of the gravel pits, and revegetation, could have cost millions. The Attorney General of Canada v. Steelhead Aggregates Ltd., 2022 BCSC 34.
Successfully defended against injunction application by major telecom based on allegations of false and misleading advertising, in connection with branding of top tier residential high speed internet services. TELUS Communications Inc. v. Shaw Communications Inc., 2020 BCSC 1354
Obtained an order by way of petition for equitable rescission of a multi-property purchase and corporate reorganization, in order to remedy a procedural error in the original transaction which would have resulted in an unintended $2 million tax liability, rendering the housing development project unviable, and resulting in a total loss for investors. Equitable rescission was granted, enabling the error to be remedied, the transaction properly structured in a tax efficient manner, and the project to proceed.
Successfully brought claims for defamation and obtained an order for incarceration for contempt of Court against a defendant located outside Canada, ending an online campaign of defamation and harassment. Passey v. Henry, 2016 BCSC 1766, 2016 BCSC 2330
Successfully defended against claims for breach of restrictive covenant, breach of easement, and trespass in renovation of residential property where plaintiffs sought mandatory injunctions to remove renovated portions of defendant's home in addition to damages. Erschbamer v. Wallster, 2014 BCSC 2171.
Successfully represented an electric utility in resisting a claim for additional compensation under a construction contract for approximately $60 million.
In 2014, successfully obtained an injunction, an enforcement order, and sanctions for contempt of court in the context of a blockade of a refinery supplying fuel for YVR and local emergency services.
Successfully reinstated portions of a Response to Civil Claim previously struck out, in appeal clarifying law of res judicata and issue estoppel. Erschbamer v. Wallster, 2013 BCCA 76.
In 2013/14, successfully represented an international mining client in a private arbitration concerning an option agreement related to an exploration property located in Africa.
Successfully defended a visual effects studio and its principals against claims for breach of fiduciary duty, breach of the duty of fidelity, conspiracy, conversion, breach of confidence, and solicitation of employees, arising from the provision of visual effects for a network science fiction television show. Zoic Studios BC Inc. v. Gannon, 2012 BCSC 1322; 2015 BCCA 1334.
In 2011, successfully represented a major audit software corporation in an arbitration against an ex-principal, enforcing a non-competition covenant and awarding damages for breach thereof.
Defended an online residential property search engine against claims for breach of contract and breach of copyright in a significant case on online contract formation. Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196.
Represented a natural resources company in successfully resisting an application for judicial review, clarifying the unavailability of review for certain letters of advice from Ministry of Fisheries and Oceans. Cassiar Watch v. Ministry of Fisheries and Oceans et al, 2010 FC 152.
Obtained injunctions, enforcement orders, and successfully prosecuted respondents for civil contempt in connection with a major infrastructure renewal project. B.C. Transmission Corporation v. Lemoignan, 2008 BCSC 1221, 2008 BCSC 1045.
Successfully represented the Canadian Transportation Accident Investigation and Safety Board in preserving confidentiality defeating a petition and corresponding appeal seeking publication of confidential data from a major marine accident investigation. British Columbia Ferry Services Inc. v. Canadian Transportation Accident Investigation and Safety Board, 2007 BCSC 1434, 2008 BCCA 40.
Successfully defended claims by a junior mining company against a major for breach of confidence in a case involving significant nickel deposits in the Cape Smith Belt, obtaining dismissal of all claims after summary trial. Novawest Resources Inc. v. Anglo American Exploration (Canada) Ltd. et al., 2006 BCSC 769.
Successfully obtained an injunction restraining passing off and sale of counterfeit luxury handbags, and an order to seize all inventory. Hermes Canada Inc. v. Henry High Class Kelly Retail Store, 2004 BCSC 1694.
Successfully obtained a multimillion dollar judgment, an accounting, tracing orders, and a proprietary interest in hotel property on the basis of a constructive trust in a multijurisdictional case involving breach of fiduciary duty, knowing assistance, and knowing receipt, and upheld the judgment on appeal. Ruwenzori Enterprises et al. v. Walji et al., 2004 BCSC 741, 2006 BCCA 448.