D. Brian Foster Q.C., LL.B., Partner

Brian has extensive experience in all aspects of dispute resolution. His practice covers a broad range of commercial litigation matters, including securities litigation, shareholder disputes, class actions, the defence of civil and regulatory claims against investment advisers and dealers, employment disputes, and product liability claims. Brian has represented individuals and corporations in arbitrations, and in court supervised and private mediations.

Brian has represented clients in the courts of Alberta, Saskatchewan, the Court of Appeal in Quebec, and in the Supreme Court of Canada. He has appeared before administrative boards and acted as chair of investment industry disciplinary panels (IIROC)from 2007 to 2015.

Before joining Rose LLP as a founding partner, Brian was the Department Manager of the Commercial | Financial Services Litigation department of the Calgary office of a national law firm. He is the past Chair of the Canadian Bar Association, Alberta South Civil Litigation subsection, and is a past director of the Edmonton Bar Association. He is a past member of the Audit Committee and of the Conduct Committee of the Law Society of Alberta and was a member of the Canadian Bar Association National Task Force that undertook a review of jurisdictional and procedural issues of national class actions. He is a director of The Advocates' Society. He received his Queen’s Counsel designation in 2010.

Brian has extensive experience in all aspects of securities litigation and regulatory investigations. He has defended dealers, underwriters, investment advisors, public companies and their directors and officers in securities claims, including class actions. He regularly represents clients facing investigations by the Alberta Securities Commission, the Ontario Securities Commission, IIROC, MFDA and others into alleged misconduct. He has represented a public company in the defence of a Shareholders Rights Plan during a hostile takeover bid. He has acted for companies seeking Court approval of Plans of Arrangement. He acts for a dealer in relation to an extensive compliance audit of its business. He represented the Attorney General of Alberta in the Quebec and Alberta Courts of Appeal and the Supreme Court of Canada in its successful opposition to the proposed creation of a federal national securities regulator.

Representative Work

  • Counsel to Attorney General of Alberta in the National Securities Regulator References heard by the Alberta and Quebec Courts of Appeal and by the Supreme Court of Canada (2011 SCC 66). The References related to the intention of the Federal Government to legislate in the area of securities regulation under its trade and commerce powers and a challenge by the Province of Alberta, and others, to the constitutionality of the proposed legislation. The Alberta Court of Appeal and the Quebec Court of Appeal (with one dissent) accepted the provincial position. The Supreme Court of Canada, in a unanimous decision, found in favour of the provincial position and ruled that the proposed federal legislation was unconstitutional. This important decision will have a significant impact on the division of powers and the balance of federalism
  • Represented Afexa Life Science in a cease-trade application brought by Paladin Labs Inc. to cease-trade a Shareholders Rights Plan (2011 ABASC 532)
  • Represented CPI Investment Inc., CPI Income Services Ltd. and Capital Power Income L.P. in an application for approval of a Plan of Arrangement involving Atlantic Power Corporation, a transaction with a value of in excess of $1 billion
  • Delf v. Merit Energy et al., 2001 CanLII 138 (ABCA): acted for six underwriters including RBC Dominion Securities and BMO Nesbitt Burns in the defence of a prospectus misrepresentation class action claim and multiple individual claims in three provinces brought against the underwriters, directors and officers, and auditors of an energy company that failed shortly after the closing of a flow-through offering.
  • Metera et al v. Barclay Las Vegas Limited Partnership et al: Class action commenced by purchasers of a real estate limited partnership that failed. Defended the mutual fund dealer that sold the investment
  • Barber et al v. Barclay Las Vegas Limited Partnership et al: Multi-party claim (39 plaintiffs) commenced in Saskatchewan by purchasers of a real estate limited partnership that failed. Defended the mutual fund dealer that sold the investment
  • Gillespie v. Academy Financial et al: Class action claim brought on behalf of all investors in a mortgage syndication. He acted for a trust company that held RSP Accounts holding the investment. The Court of Queen's Bench of Alberta denied certification against the client
  • Stewart v. Academy Financial et al: Class action commenced on behalf of investors in a syndicated mortgage. He acted for a trust company named as Defendant
  • 981179 Alberta Ltd. v. Chapin - Acted for a financial institution in relation to the recovery of funds stolen by an employee. Obtained various prejudgment orders, including Norwich Pharmacal, attachment and preservation orders
  • Bre-X v. Nesbitt Burns Inc.: Multiple actions commenced against BMO Nesbitt Burns, and many other Defendants, in relation to the failure of Bre-X Minerals. Class actions commenced in multiple jurisdictions together with multiple party actions
  • Acted in the defence of a products liability claim involving a claim that our client’s product, used in the manufacturing process of the plaintiff, had caused the failure of tens of thousands of the plaintiff’s product
  • Acted in the defence of an oppression action brought against our clients and acted for a minority shareholder in an oppression action that also involved the valuation of the company
  • Acts for officers and directors of public companies in the defence of civil claims and regulatory investigations
  • Acts for an international manufacturer of heavy duty trucks in the defense of product liability claims
  • Canadian counsel to US Gold Corporation on its acquisition by statutory plan of arrangement of Minera Andes Inc. with a transaction value at the time of closing of approximately CDN $1.4 billion for the combined company, which was renamed McEwen Mining Inc. (NYSE; TSX: MUX), 2012

Teaching Roles

Instructor at "New Alberta Rules of Court" seminars, Legal Education Society of Alberta, 2010

Faculty Member, Civil Trial Advocacy College, February, 2012, 2013 and 2014 (Calgary), sponsored by The Advocates' Society

Co-chair of Oral and Written Advocacy Course (2014), Evidence that Wins course (2015) and Challenging Credibility (2016) sponsored by The Advocates' Society

Presentations to various securities firms on professional obligations

Recognition

LEXPERT ranked as a "Leading Cross-Border Litigation" lawyer

Frequently recommended for Securities Litigation by The Canadian Legal LEXPERT Directory

Recognized by Benchmark Canada as a Litigation Star in Alberta

Received the well-regarded distinction and recognition as Queen's Counsel - 2010

Community Involvement

Past Board Member and Past President of the Calgary and Region Canadian Mental Health Association

Various other community association positions

Professional Affiliations

Director of The Advocates' Society

Member of the Canadian Bar Association National Class Action Task Force

Past Member of the Audit Committee and at present a member of the Conduct Committee, The Law Society of Alberta

Acts as a Chair of Hearing Panels for the IDA (now IIROC) since 2007

Past Chair of the Alberta South Canadian Bar Association Civil Litigation subsection

Past Director of the Edmonton Bar Association

Member of the Calgary Bar Association

Contact Information

403 776 0510

Areas of Expertise

Commercial Litigation

Securities Litigation

Class Actions

Constitutional Law

Year of Call

1982 (Alberta)

Education

University of Western Ontario, LL.B., 1981

University of Western Ontario, Richard Ivey School of Business, 1977