David Foulds

Representative Project Disputes Experience

• Acting for the joint venture that will operate and maintain the Hurontario LRT system in Toronto, Ontario.
• Acting for a private company formed by a consortium of four leading global infrastructure companies responsible for operating, managing, maintaining and rehabilitating the section of the Trans-Canada Highway between Fredericton and Moncton in the province of New Brunswick in a variety of matters, including:
  • a complex arbitration to determine the payments to be made by the New Brunswick Highway Corporation to compensate the consortium for the work required to operate, manage, maintain and rehabilitate the facility for the final ten years of operational term;
  • the successful defence of NBHC’s efforts to appeal the arbitral decision to the New Brunswick Court of King’s Bench and the New Brunswick Court of Appeal; and
  • disputes concerning the consortium’s ongoing rights and obligations in the lead up to the hand-back of the facility to NBHC (or NBHC’s designate) in January 2028.
• Acting for the consortium responsible for operating and maintaining the new Samuel de Champlain Bridge over the Saint Lawrence River in Montreal, Quebec.
• Advising the VIA HFR – Technical Office on the proposed High Frequency Rail project in the Quebec City, Montreal, Ottawa, Toronto rail corridor.
• Acting for a private corporation operating a public social infrastructure facility in a series of negotiations and dispute resolution procedures related to bench-marking exercises and change orders.
• Acting for a federal Crown corporation in litigation with a supplier of equipment and services to the Point Lepreau Nuclear Generating Station refurbishment project.
• Acting for a design-build subcontractor in an accreditation dispute with the public sector owner of a social infrastructure facility.
• Acting for an international construction company in a dispute relating to the design and construction of a hydro-electric project.
• Acting for a public transit agency in an arbitration relating to the construction of a significant component of transit infrastructure.
• Acting for a design-build subcontractor in an arbitration with a public sector owner and the private sector project sponsor to determine who bears responsibility for making certain third-party payments relating to the development and construction of a social infrastructure facility. 
• Acting for the members of a private sector project consortium in a dispute arising with a subcontractor during the bid stage of a project.
• Acting for the members of the project consortium and design-build consortium in negotiations and public hearings arising in connection with the construction of a large transportation infrastructure project.
• Regularly advising private and public sector clients on how best to navigate complex commercial and operational issues arising in a wide variety of project structures.
• Regularly assisting private and public sector clients in negotiating effective and efficient dispute resolution procedures in project agreements and ancillary documents.

Representative Shareholder and M&A Disputes Experience

• Acting for the former owners of a successful consumer packaged goods business in proceedings to determine the earn-out to be paid by the purchaser of the business.
• Acting for the purchaser of a multinational full-service automation system integrator in multiple proceedings concerning the accuracy of contractual representations and warranties and covenants given by the former owners of the business.
• Acting for a reporting issuer in a breach of contract dispute with an investment banker claiming compensation in connection with a proposed financing transaction.
• Acting for the majority shareholders and directors of a privately held investment management business in a dispute with a minority shareholder and lender to the business.
• Acting for the majority shareholder of a privately held recreational watercraft business in a dispute with a former shareholder. 
• Acting for a minority shareholder of a privately held insurance brokerage business in a dispute with the majority shareholders.
• Acting for a privately held biotechnology company in proceedings commenced in a variety of jurisdictions alleging shareholder oppression, misappropriation of corporate assets, and breaches of technology licensing agreements.
• Acting for the minority shareholders in a privately held building materials business in proceedings alleging shareholder oppression and misappropriation of corporate assets.
• Regularly acting for purchasers and sellers of businesses in post-acquisition disputes relating to purchase price adjustments, earn-outs and indemnity claims.
• Regularly assisting shareholders and directors of private corporations in navigating governance disputes.

Representative Product Liability Disputes Experience

• Acting for an international pharmaceutical company as Canadian product liability counsel related to COVID-19 vaccines.
• Acting for a multinational manufacturer and distributor of food products in a dispute with a packaging supplier relating to the causes for a product recall.
• Acting for an in vitro diagnostics business in a dispute with the supplier of complex analytic equipment. 
• Acting for a multinational manufacturer and distributor of high-performance construction materials in a dispute with a residential real estate developer.
• Acting for a multinational manufacturer of products for the beverage industry in a breach of contract and product liability dispute with a former distributor.
• Acting for a multinational manufacturer of packaged goods in a dispute with a supplier alleged to have provided non-compliant and unsafe product components.
• Acting for a global supplier of legal and compliance services in the defence of a product liability claim by a customer.
• Acting for a leading logistics company in the defence of a product liability claim by a customer.

Other Representative Experience

• Acting as lead Canadian counsel for three multinational property insurers in the defence of claims relating to COVID-19.
• Acting for commercial Landlords and Tenants in lease renewal arbitrations and other commercial leasing disputes.
• Acting for an informational technology solutions and infrastructure provider in a licensing dispute with a multinational computer hardware manufacturer and distributor.
• Acting for a market-leading supplier of financial services software in the defence of breach of contract claims brought by a former customer.
• Acting for a software developer in a licensing dispute with Canada’s largest pharmacy chain relating to software designed to facilitate fulfilment and distribution of bulk prescriptions.
• Acting for a provider of outsourced operations and maintenance services in a dispute with a multinational software developer relating to the development and performance of a bespoke enterprise software solution.
• Acting for a national automotive importer and distributor in a dispute with a multinational software developer relating to the development and performance of inventory management software.