Mark Wainberg

Abrams v. Sprott

Philip Abrams, a 78-year-old semi-retired businessman, was persuaded to invest $300,000 in two private companies through the defendant Sprott Securities Limited, a well-known Canadian stock brokerage firm. To make this investment, Mr. Abrams was required to sign documents stating that he was a sophisticated investor and that he understood the risks involved (even though he did not understand those risks). Mr. Abrams lost his entire investment. He sued Sprott to recover his losses, claiming that Sprott breached its duties by allowing him to invest such a large sum in speculative investments while failing to provide complete and accurate information about the risks. At trial, Sprott argued that the case should be dismissed because Mr. Abrams had acknowledged in writing that he understood the risks he was taking. Instead, the trial judge found that Sprott had not adequately explained the risks to Mr. Abrams and that he did not understand the risks, and awarded Mr. Abrams 50% of his losses. Sprott appealed to the Court of Appeal, but its appeal was dismissed.

Fairlie v. Benesure

In this case, for the first time in Ontario, the Court of Appeal allowed a party to a contract to sue for monetary damages for “equitable fraud” based on “unconscionable” (grossly unfair) conduct by the other contracting party. The defendant was alleged to have improperly solicited the plaintiff’s customers by various unscrupulous methods.

Ferraton v. Shular

In this case, a former friend persuaded Mr. Shular, who was in an emotionally fragile state, to sign an agreement to pay her the equivalent of a 44% commission for “arranging for the sale” of Mr. Shular’s house. The trial judge ruled that the agreement was unenforceable because it was “unconscionable” (grossly unfair), and because the former friend was not a licensed real estate agent and was therefore not entitled to charge a commission.

Hamilton v. CNR

Suzanne Hamilton, a nine-year-old girl, was struck and killed by a train in Mississauga. Her mother sued the railway (CNR). CNR denied that it was responsible in any way for the accident, and also argued (in accordance with previous judges’ decisions) that the death of a child was worth much less (in monetary compensation) than the death of an adult. The jury did not agree with CNR, found CNR partially responsible for the accident, and made the highest general damage assessment for the death of a young child in Canadian history up to that time. CNR appealed both the finding of liability and the amount of the damages. The Court of Appeal confirmed the jury’s finding of liability, but reduced the damage assessment; however, even the reduced assessment was still the highest in Canada.

Citation: Hamilton v. CNR (1991), 80 D.L.R. (4th) 470 at 472 (Ont. C.A.)

Atkins v. Holubeshen

Ms. Atkins was injured in a car accident and sued the driver of the car that struck her. Her former lawyer was very slow in providing documents to the insurance company’s lawyer, and finally agreed (without Ms. Atkins’ knowledge or consent) that if he did not provide the required documents by a certain date, the insurance company could have the lawsuit dismissed. Ms. Atkins’ lawyer did not comply with the deadline, and her lawsuit was therefore dismissed. For the next two years her lawyer kept telling her that the case was proceeding to trial, although that was untrue. She eventually checked with the court office and discovered that her claim had been dismissed two years earlier. She then hired Mr. Wainberg, who brought a motion to the court to set aside the dismissal and to permit the case to proceed to trial. The judge who heard the motion decided that Ms. Atkins should not lose her claim because of the negligence of her former lawyer, and reinstated the action. The insurance company appealed to the Ontario Divisional Court and then to the Court of Appeal, but both appeals were dismissed.

Citation: Atkins v. Holubeshen (1984), 43 C.P.C. 166 (Ont. H.C.), affirmed (1985), 50 C.P.C. 94 (Ont. Div. Ct.), affirmed (1986) 23 C.P.C. (2d) 192 (Ont. C.A.)

Post-Secondary Education

• 1968-71: University of Toronto, Bachelor of Arts Degree
• 1971-74: University of Toronto, Bachelor of Laws Degree
• 1975-76: Ontario Bar Admission Course - called to the Ontario Bar, April 1976

Law Practice - 1976 to date

• 1976-84: General Practice (including civil, criminal and matrimonial litigation and real estate)
• 1984 to date: Civil litigation (business, real estate, family law, estates and employment law), real estate conveyancing (until 2011), civil appeals, wills and estates

Legal Publications

• Co-author, Wainberg's Company Meetings Including Rules of Order, Third Edition (CCH Canadian Limited)
• Co-author, Duties and Responsibilities of Directors in Canada, Sixth Edition (CCH)
• Co-author, Guidebook to Canadian Business Corporations Act, Second Edition (CCH)
• Co-author, Guidebook to Ontario Business Corporations Act, First Edition (CCH)
• Co-author, Society Meetings, Including Rules of Order (CCH)

Public Interest Groups

• 1978-94: Member, Urban Alliance on Race Relations
• 1981-85: President, Vice-President, Director, Citizens Independent Review of Police Activities (CIRPA) - made numerous deputations to Metropolitan Toronto Police Commission
• 1991-94: Founding member, Metro Coalition for Police Reform - advocating legislative and policy changes re: Ontario police forces (particularly Metropolitan Toronto Police)
• 1981-2005: Member, Law Union of Ontario
• 1990-92: Member of Steering Committee, Law Union of Ontario
• 2004-05: Member of Policing Subcommittee, Law Union of Ontario

Legislative Deputations

• 1981: Ontario Standing Committee on Resources Development - Co-wrote and presented brief on behalf of Urban Alliance on Race Relations re: proposed amendments to Ontario Human Rights Code
• 1985: Ontario Solicitor-General's Special Committee on Police Pursuits - Co-wrote and presented brief on behalf of CIRPA re: Ontario police pursuit guidelines
• 1990: Ontario Standing Committee on Administration of Justice - Wrote and presented brief on proposed Police Services Act
• Feb. 1, 1993: Ontario Standing Committee on Government Agencies- Made presentation re: performance of Metropolitan Toronto Police Services Board
• August, 2004: Ontario Ministry of the Attorney General, Review of System for Complaints by the Public Regarding the Police - Wrote and presented brief to Justice Patrick LeSage re: proposed reforms to police complaints system