David Wotherspoon

Partner

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contact

Office: Vancouver

Main: (604) 608-4564

Fax: (604) 682-7131

Education & Qualifications

  • British Columbia Bar (1992)
  • LLB (British Columbia, 1991)
  • MA (British Columbia, 1988)

David Wotherspoon is a commercial litigator whose focus is in crisis management, technology, intellectual property, social media and defamation.

  • Intervenor, represented Electronic Frontier Foundation in Google v. Equustek in the BC Court of Appeal and Supreme Court of Canada, a landmark case involving extraterritorial orders affecting intellectual property and free speech.
  • Defense of Abbotsford’s Homeless Population’s Right to Exist. Advised the British Columbia/Yukon Association of Drug War Survivors throughout the course of nearly two years of litigation, 15 applications, multiple case management conferences and two appeals. Successful in having sections of the city’s bylaws declared unconstitutional as they applied to Abbotsford’s Homeless.
  • Review of Arbitration by the Courts. Represented the British Columbia International Commercial Arbitration Centre as an intervenor before the Supreme Court of Canada to establish deference for arbitral awards.
  • The Salmon Saga – Malicious Comment or Fair Comment? Counsel to Mainstream Canada in a defamation action against an environmental activist over an anti-salmon farming internet campaign through trial and appeal.
  • Appeal to Court of Appeal. Appealed the decision of a judge of the Supreme Court of British Columbia, who had overturned the decision of an arbitrator.
  • Represented FortisBC throughout Labour Dispute and Injunction. Advised and Represented FortisBC throughout Major Unionized Labour Dispute in British Columbia, and throughout a subsequent injunction.
  • Korea Ginseng fights against fake ginseng. Assisted Korea Ginseng Corp. to obtain and enforce Federal Court Orders to seize fake Korea Ginseng products.
  • Woodpecker injunction punches hole in registered trademark. Counsel to Woodpecker Hardwood Floors in obtaining an interlocutory injunction in BC Supreme Court to restrain competitor Wiston International from marketing products under the name “Woodpecker,” a trade-mark that Wiston International originally owned
  • Arbital Rulings Withstand Appellate Scrutiny. Represented TELUS in arbitration against an ISP, On Call Internet Services Ltd., over fees TELUS claimed were due and owing. In December 2009, TELUS was awarded more than $800,000 plus costs.
  • Shareholders Oppression. Counsel to Bean Services, a Vancouver startup technology company to successfully defend oppression action by a shareholder and debt holder.
  • Constitutional Litigation. Brought a claim against the Minister for Public Safety alleging breach of the constitutional right to freedom of religion for federal prisoners.
  • Personal Privacy Litigation. Assisted a client over a period of several years to protect personal and private information from being disclosed on a blog.
  • BC Supreme Court denies appeal from arbitration award. The Supreme Court of British Columbia denied Arbutus Software Inc. appeal of an arbitrator’s decision with respect to a reorganization agreement with ACL Services Ltd. Each party argued that the other had breached restrictive covenant reorganization agreement, and they referred the matter to arbitration.
  • BC Supreme Court grants Air Canada its application for injunction against Canadian Auto Workers Union to restrain unlawful picketing. Counsel to Air Canada in its Supreme Court of British Columbia application for an interlocutory injunction to restraint the Canadian Auto Workers Union from illegal picketing.
  • BC Court of Appeal affirms a decision to dismiss an appeal to overturn interlocutory injunction in trademark dispute. Counsel to Lorna Vanderhaeghe in the British Columbia Court of Appeal’s affirmation of the Supreme Court of British Columbia’s decision to dismiss Preferred Nutrition’s application for an interlocutory injunction against Lorna Vanderhaeghe and her companies.
  • BC Supreme Court sides with TELUS ending protracted arbitration dispute with commercial customer. Counsel to TELUS Corporation in a multi-year arbitration process that successfully resulted in an award for our client in a complex billing dispute with a commercial customer.
  • Counsel to TELUS in numerous matters including injunctions to restraining use of copyrighted materials; restrain breach of confidence; restrain posting of threatening materials on the internet; misleading advertising.
  • BC Supreme Court grants TELUS injunction against illegal protestors. Counsel to TELUS Communications as it obtained an interlocutory injunction against protestors from blocking the road and from preventing its installation of a fibre optic cable.
  • BC Supreme Court grants Canadian Pacific Railway interlocutory injunction against unlawful picketing by Teamsters. Counsel to Canadian Pacific Railway in its successful application for an interlocutory injunction to restrain illegal picketing and related unlawful acts by Teamsters.
  • BC Supreme Court allows TELUS Mobility to maintain Flexible Share Plans marketing campaign. Counsel to TELUS Communications in an advertising dispute in which the Supreme Court of British Columbia declined Bell Mobility’s application for injunctions alleging that certain advertisements were false and misleading.
  • Federal Court of Canada affirms Registrar of Trademark’s refusal to register mark “Community Credit Union.” Counsel to Community Savings Credit Union in the successful opposition of an appeal of the Registrar of Trademark’s decision to refuse registration of the mark “Community Credit Union.”
  • BC Supreme Court grants Lululemon application for severance. Counsel to Lululemon in its successful application to sever a trial pertaining to a breach of contract case with Enterprising Minds Technology Consultants Inc.
  • Injunction to protect confidential information. Counsel to Aker Kvaerner Canada, obtained an interlocutory injunction to restrain an ex-employee from misusing confidential company information.
  • The Supreme Court of the Northwest Territories grants BHP Billiton Diamonds an interlocutory injunction against PSAC. Counsel to BHP Billiton Diamonds Inc. in its successful application to the Supreme Court of the Northwest Territories for an interim injunction against a branch of the Public Service Alliance of Canada (PSAC).
  • Novawest Resources Ltd. v. Anglo American Exploration (Canada) Ltd. and Hudson Bay Exploration and Development Company et al. Counsel to Anglo American Exploration (Canada) Ltd. et. al.
  • BC Supreme Court clarifies law concerning misleading advertising in favourable ruling for TELUS. Counsel to TELUS Communications Inc. in a dispute with Bell Mobility Inc. over advertising activities.
  • BC Supreme Court grants the Law Society of BC a permanent injunction to restrain use of the domain name lawsocietyofbc.ca – a decision upheld by the Court of Appeal. The Supreme Court of BC granted the Law Society of BC an interlocutory injunction against Canadian Domain Name Exchange Corp. to restrain it from using or transferring domain names registered in the Law Society’s name.
  • BC Supreme Court grants Ipsos application to join defendants to action against Angus Reid. Counsel to Ipsos as it sought an order restraining Mr. Angus Reid, the founder of one of its subsidiaries (Angus Reid Group), from breaching non-competition and non-solicitation covenants and from joining a company he led as CEO (Vision Critical) and a company he founded (ARC Inc.) as defendants at trial.
  • Telus Corp. v. Orange Personal Communications Services Ltd., 2005 FC 590.
  • BC Supreme Court grants TELUS breach of confidence injunction against Telecommunications Workers’ Union. Counsel to TELUS Communications Inc. as it successfully sought a breach of confidence injunction restraining the Telecommunications Workers’ Union from using materials received under suspicious circumstances in an ongoing labour dispute.
  • Hermés Canada Inc. v. Henry High Class Kelly Retail Store, 2004 BCSC 1694. Counsel to Hermés Canada Inc.
  • The Software Guy’s application for injunctive relief dismissed. Counsel to The Software Guy Brokers Ltd as it sought a BC Supreme Court injunction restraining Roger Hardy and Winston Cabell from doing business as the Software King – an injunction that was declined on the grounds that it was not clear that the text was originally authored by The Software Guy.
  • ICBC not liable for breach of copyright and confidence against VS Visual Statement Inc. Counsel to ICBC in its defence from VS Visual Statement’s law suit claiming damages for breach of confidence, breach of copyright and negligent misrepresentation – the first two of which were denied by the Supreme court of BC.

David Wotherspoon is a commercial litigator whose focus is crisis management, social media, intellectual property, technology and defamation.  He has acted for clients such as TELUS, Hermès, Emily Carr University, Nintendo, Canadian Pacific Railway as well as many early-stage companies and individuals.

Many of his cases have involved protecting businesses that have been targeted in a way that requires intense and swift action and often injunctions to safeguard clients’ rights. He is consistently recommended in the world’s leading legal publications for his intellectual property law expertise.

Client Quotes

“David has the strongest client relationship skills of any lawyer I’ve worked with in Canada or the US. I’ve lost count of the number of matters he’s gone to court for me on, and he has never lost any of them.”

“[When it comes to early resolution,] any company would be well served in retaining him to advise them when they need a win-win outcome for both sides.”

Commercial Litigation

David’s work in commercial litigation is guided by the understanding that litigation must first serve the client’s business purposes. David’s litigation expertise includes areas such as technology and software disputes, fraud investigations professional indemnity/negligence and commercial disputes.

Injunctions and Anton Piller Orders

Arguably his most substantial practice, much of David’s work involves injunctions and Anton Piller orders. So much so that he is regularly called on by other firms for his experience and knowledge of this practice. David consistently delivers favourable outcomes.

Defamation & Free Speech

David advises on a plethora of cases, speaks on Continuing Legal Education Society of BC’s panels, and is often a primary contact for defamation issues. One of his most recent cases involved representing a client who was the target of an internet defamation campaign by an environmental activist.  David’s free speech practice has produced landmark decisions, most recently involving a petition for Google to remove a particular search result from their engine – a previously unheard of judgement. David strategizes with clients on maintaining reputation while keeping a business-focused approach and continually delivers success in this particular area.

Intellectual Property

David has more 20 years’ experience working with clients ranging from solo inventors and entrepreneurs to small and medium-sized enterprises and multinational companies. David enforces, protects and exploits intellectual property rights and assets. He has been referred to by his clients as one of the top IP lawyers in Canada. His practice includes all matters of intellectual property, litigation before courts, and enforcement and anti-counterfeiting.

Crisis Management

Frequently called on as a trusted adviser, David provides insight on methods to manage crisis and public relations communications, and combines his knowledge and experience to see clients through potentially damaging situations. His cases in this area are frequently intense and require swift action to safeguard clients’ rights. David delivers consistent results in this facet, and always applies a business-oriented approach when looking for solutions.

Arbitration

David’s work in alternative dispute resolution has become a significant part of his practice, seeing him act as counsel in arbitrations and as a neutral. One of his most recent cases involved appearing in the Supreme Court of Canada as an intervenor on behalf of the British Columbia International Arbitration Centre in a matter involving commercial arbitration. The submission stated that the courts should provide deference to the commercial arbitration process, given the consensual nature of the process and the choice by the parties to avoid the courts.

  • Director, Pacific Coast Television Alliance
  • Volunteer, Pivot Legal Society
  • Governor (past), Collingwood School
  • Governor (past), Emily Carr University of Art + Design
  • Co-author, “The Well-Governed Non-Profit”
  • “Dealing with Threats to Counsel” (May 2016)
  • “Using Injunctions Effectively,” Pacific Business & Law Institute Seminar (Vancouver, March 2015)
  • “Corporate Structure and IP Strategy,” BCIC New Ventures Seminar (Vancouver, April 2014)
  • “Managing Cyber Risk: What In-house Counsel Need to Know,” Fasken Martineau Symposium 2014 (Vancouver, October 2014)
  • “Maximizing Arbitration: Drafting Commercial Agreements for Resolving Business Disputes”
  • Fasken Martineau Symposium (Vancouver, 2009, 2011-2013)
  • “The Balance Shifts: What will the Ontario Protection of Public Participation Act Mean for Free Speech and Reputation Management?” Litigation Group Seminar (Toronto, October 2013)
  • “Controversial ‘Salmon Farming Kills’ Internet Campaign Declared Defamatory,” Defamation & Media Bulletin (August 2013)
  • Co-author, “IP Disputes.” Outstanding Achievement Award in the Best Publications category for British Columbia Business Disputes from the International Association for Continuing Legal Education.
  • “Fasken Martineau Symposium 2012 – Vancouver,” Vancouver, British Columbia (October  2012)
  • “Supreme Court of Canada Protects Cyberbullied Youth” (September 2012)
  • “2nd Social Media Risks,” Steer clear of liability and litigation over the improper use of social media (Vancouver, October 2012)
  • “Fasken Martineau’s Accountability Summit,” Social Media Week (Vancouver, September 2011)
  • “Arbitration to the Rescue: Managing Dispute Risks in Cross-Border Commercial Transactions,” (October 2011)
  • “Every aspect of a law firm benefits from supporting the Sedona Principles” (April 2011)
  • “Hot Off the Press: Fasken Martineau Literally Writes the Book on Electronic Evidence and E-discovery” (August 2010)
  • “IT Litigation Seminar: Getting IT Right,” Litigation Group Seminar (Vancouver, June 2010)
  • “Bill C-32: New Proposal to Reform Canadian Copyright Act – A Detailed Review,” Technology and Intellectual Property Bulletin (June 2010)
  • “Injunctions: The Practical Guide to Law, Procedure and Strategy,” Osgoode Professional Development, (Toronto, April 2010)
  • “Electronic Evidence and E-Discovery,” LexisNexis Canada (April 2010)
  • “Grant V. Torstar: The Right To Be (Responsible And) Wrong” (March 2010)
  • “You’ve Been Served! In California, Texas and Virginia! Intellectual Property Litigation Strategies for Canadian Companies Doing Business in the United States,” Intellectual Property Litigation Group Seminar (Vancouver, March 2010)
  • “Think Inside the Box” (November 2009)
  • “Internet Law: Online Counterfeiting and Fraud,” Insight Information (Vancouver, November 2009)
  • “Confidentiality and Trade Secrets,” Intellectual Property for Litigators 2009, Continuing Legal Education Society of British Columbia (Vancouver, September 2009)
  • “’Socializing’ Your Business: Legal and Business Consideration of Social Networking,” Fasken Martineau Commercial Litigation and Dispute Resolution Group Seminar (Vancouver, September 2009)
  • “Copyright Law,” Lecture for Foundation Class, Emily Carr University of Art + Design (Vancouver, September 2009)
  • “Calling All Bloggers,” Los Angeles Daily Journal (September 2009)
  • “He Said, She Said: A Worldview on the Challenges of Citizen Journalism and Proving Defamation Online,” Mealey’s Litigation Report: Cyber Tech & E-Commerce, Vol. 11, No. 7 (September 2009)
  • “Breach of Confidence and Mining Contracts 2009” (September 2009)
  • “Northern Exposure,” Los Angeles Daily Journal (August 2009)
  • “Watch Out: Is Canada as ‘Bad’ as China When it Comes to Intellectual Property Infringement?” North American Free Trade & Investment Report and Intellectual Property Today (July 2009)
  • “Let’s Get Real About Eliminating Fake Goods,” Intellectual Property, Andrews Litigation Reporter, Vol. 16, Issue 5 (June 2009)
  • “Summary Trial at the Federal Court,” Presented at Joint Meeting of Lawyers and Judges, Federal Court (May 2009)
  • “The Arbitration Tribunal and Equitable Relief: An Update from the British Columbia Court of Appeal,” The Advocate, Vancouver Bar Association (May 2009)
  • “Internet Defamation & the Defence of Responsible Journalism: Protecting Professionals and Amateurs Alike?” Internet Law Conference, Federated Press (April 2009)
  • “Social Networking: Risky Business,” CBA Corporate Counsel Section (Vancouver, January 2009)
  • “Internet Law: Social Networking,” Insight Information (Vancouver, November 2008)
  • “Managing Cross-border Litigation,” Lexpert Magazine (November 2008)
  • “IP Summit: What’s New in the Federal Court,” Insight Information (Vancouver, September 2008)
  • “Opining the Smoking Gun: Expert Evidence in Trade-mark Litigation,” IPIC – McGill Summer Courses in Intellectual Property (Montreal,August 2008)

 

  • Canadian Legal Lexpert Directory for Computer & IT Law, Intellectual Property and Litigation – Intellectual Property (2014-15)
  • WTR 1000’s World Leading Trademark Professionals (2015)
  • The Legal 500 Canada for Intellectual Property (2015)
  • Awarded a 2014 Access to Justice Award by the Pivot Legal Society for outstanding support of the organization and its mandate to use the law to combat the root causes of poverty and social exclusion in Canada
  • “Local litigation star” in British Columbia and a “litigation star” for intellectual property in Canada by Benchmark Canada (2014)
  • Canadian Legal Lexpert® Directory for Computer & IT Law, and Intellectual Property (2011-2013)
  • Silver ranking for both anti-counterfeiting and trademark enforcement expertise in the 2013 edition of the WTR 1000: The World’s Leading Trademark Professionals, published by World Trademark Review
  • Named as “Leading Trademark Practitioner” by World Trademark Review