Michael’s practice focuses on tax litigation, class actions and international arbitration. He has successfully represented clients in contentious matters at various levels of court and in arbitrations in multiple jurisdictions.
Clients in a wide range of sectors, including large and medium-sized corporations, high-net-worth individuals and charities, rely on Michael to present substantial amounts of legal and factual information in a manner that is clear and insightful.
Michael brings a unique understanding of international business to his clients’ matters. Prior to joining us, Michael worked as a researcher with an investment company in Japan and later as an officer in the Canadian Foreign Service, serving in Haiti, the Dominican Republic and China.
He has published a wide range of legal articles on a number of topics, as well as authored or co-authored a number of textbooks on the art of debate.
Canadian Chamber of Commerce
Acted successfully on behalf of the Canadian Chamber of Commerce in favour of Wal-Mart before the Supreme Court of Canada in an appeal concerning the scope of the employer's right to cease operations, even where the alleged reason for the business closure was the employer's unwillingness to deal with a union that had recently obtained certification of the workplace. The majority of the Supreme Court held that although anti-union animus could, in principle, constitute the basis for awarding compensation under the unfair labour practice provisions of the Québec Labour Code, the wrongful dismissal provisions assumed the continued existence of a workplace.
Acted successfully for a Québec-based gas retailer in connection with criminal charges laid by the Competition Bureau for alleged price-fixing and related class actions. Davies has succeeded in obtaining a stay of the criminal proceedings against its client based on a breach of its constitutional rights.
The Montréal Expos
Acted for The Montréal Expos in their challenge of Québec tax assessments for employer contributions to the Québec Health Services Fund (before the Court of Québec).
Ontario Lottery and Gaming Corporation
Successfully acted for the Ontario Lottery and Gaming Corporation in a judicial review application concerning the selection process for an operator of the Niagara gaming bundle. This litigation arose out of the Ontario Provincial Government's modernization of gaming in Ontario. The City of Niagara and Region of Niagara had alleged that they had been given insufficient input and/or control over the selection process.
Successfully acted for Glen French before the Federal Court of Appeal in a case involving charitable donations, and specifically how the Québec civil law informs the meaning of the word "gift" in the Income Tax Act across Canada. The case is serving as a representative case (either officially or de facto) for over 300 other appeals before the Tax Court of Canada concerning leveraged donations.
Acted successfully for Michael Rosenberg before the Federal Court of Canada ("FCC") in an application for judicial review in regards to a demand letter sent by the Canada Revenue Agency ("CRA") pursuant to section 231.1 of the Income Tax Act. The application sought the enforcement of a settlement agreement entered into with the CRA at the conclusion of an extensive audit. The CRA argued that the settlement agreement should be repudiated as no agreement could bar the Minister of National Revenue ("Minister") from conducting another audit of previously audited taxation years. In quashing the demand letter, the FCC found that the settlement agreement was binding on the Minister and required the CRA to comply with the terms therein.
Rogers Communications Inc.
Acting for Rogers Communications Inc. in connection with numerous multi-billion dollar class action proceedings across Canada to recover "system access fees" charged to consumers by wireless service providers in Canada in the period since 1987. These are some of the largest class actions in Canadian history and have given rise to numerous trial level and appellate decisions in favour of Rogers in various provinces in Canada, including Saskatchewan, Manitoba, Québec, Nova Scotia, Alberta and British Columbia.
Egale Canada Human Rights Trust Inc.
Acted for Egale Canada, Canada's only national non-profit organization devoted to the promotion of lesbian, gay, bisexual, and transgender rights, in an action before the Québec Superior Court to invalidate eleven provisions of the Civil Code of Québec that discriminate against trans and intersex individuals and their children.
Liquor Control Board of Ontario
Acting for the Liquor Control Board of Ontario in defending claims asserted against it for approximately $1.5 billion in antitrust class action proceedings pending in the Ontario Superior Court against the LCBO, Brewers Retail Inc. and a number of major brewers. In March 2018, Justice Perell of the Ontario Superior Court granted summary judgment dismissing all claims asserted against the LCBO and the other defendants.
Acted successfully on behalf of a Toronto-region home builder in contesting, at the audit stage, a proposed double-tax assessment based on section 246 of the Income Tax Act.
$1.7 Million Civil Damage Award Against the CRA
Apr. 01, 2018 - In this article first published by the Canadian Tax Foundation in (2018) 26:4 Canadian Tax Highlights, Davies partner Michael Lubetsky discusses the implications of the B.C. Supreme Court’s groundbreaking decision to award a family $1.7 million against the CRA for malicious prosecution....
Ontario Court Applies Regulated Conduct Defence on Summary Motion to Dismiss Class Action Alleging Market Allocation Conspiracy
Mar. 23, 2018 - On March 15, 2018, Justice Perell of the Ontario Superior Court of Justice dismissed a proposed class action (Hughes v. Liquor Control Board of Ontario) concerning a document (Framework) signed by the Liquor Control Board of Ontario (LCBO) and the owner and operator of The Beer Store,...
Hafichuk-Walkin v BCE: Manitoba Becomes the Fifth Province to Shut Down Duplicative Class Actions as “Abuse of Process”
Mar. 22, 2016 - On March 14, 2016, the Manitoba Court of Appeal issued its long-awaited decision in Hafichuk-Walkin v BCE, 2016 MBCA 32, joining the increasing number of Canadian appellate courts that have stayed duplicative class actions using the “abuse of process” doctrine. In 2004, the Merchant Law...
Canadian Tax Highlights: Head of Revenu Québec Summoned
Oct. 29, 2015 - On September 17, 2015, the Québec ombudsman, Raymonde Saint-Germain, tabled in the National Assembly her 2014-15 annual report on Revenu Québec. This article outlines the problems identified in the ombudsman’s report and describes the press release that Québec’s finance minister, Carlos Leitão,...
Canadian Tax Highlights
Oct. 19, 2015 - Litigants must consider cost implications at every stage of litigation. Generally, a cost-benefit analysis is required at theoutset, at different stages in the litigation proceedings, andbefore and during settlement negotiation. In tax litigation, thecost-benefit analysis can be a fairly simple...
In the News
U.S. Court Limits State Tax Powers – Lexpert
Sept. 04, 2015 - Michael Lubetsky is quoted in the September issue of Lexpert regarding the potential Canadian impact of a recent US Supreme Court decision that limits states’ taxation powers.
Canada Closely Watching U.S. Supreme Court Proceedings in Wynne
Jan. 26, 2015 - This article provides a brief overview of the Wynne proceedings and notes that the case has attracted national media coverage in Canada and is being closely watched by Canadian tax practitioners because of the similarities in the two countries’ form of government. Download this article.
Canadian Tax Highlights: Québec Ombudsman Lambastes Revenu Québec
Oct. 31, 2014 - The public protector (or ombudsman) is appointed by the Québec National Assembly with the mandate to “intervene . . . whenever [s]he has reasonable cause to believe that a person or group of persons has suffered or may very likely suffer prejudice as the result of an act or omission of a public...
Categorically Different: Unintended Consequences of Trust Taxonomy
Sept. 09, 2013 - Your client, in Québec, wants to create a trust which will be used exclusively for the education of his descendants. He asks how long such a trust can legally last. Answering this question requires determination of the trust category under the Civil Code of Québec (C.C.Q.). If the trust is...
The Power to Audit Is the Power to Destroy: Judicial Supervision of the Exercise of Audit Powers
Sept. 05, 2013 - The authors of this article address the serious problem of lack of effective recourse for Canadian taxpayers where they are subject to the abusive exercise of audit and/or assessment powers by tax officials. While the Federal Court of Appeal has zealously affirmed the Tax Court of Canada’s...