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Eleni Kassaris says she is surprised the court didn't tell doctors to get patient consent to release information to the class counsel.
Eleni Kassaris says she is surprised the court didn't tell doctors to get patient consent to release information to the class counsel.
The British Columbia Court of Appeal says patient privacy outweighs the need to inform potential members of a pending class action involving an injectable wrinkle treatment.
Monday, 08 July 2013 09:00

Prepping for that ‘bear hug letter’

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b_150_0_16777215_00___images_stories_01-INHOUSE_Standard_photos_renato-pontello.jpgIn Canada, a bidder interested in launching a takeover bid to acquire parts, or the whole, of a business will publish its intention either by posting a newspaper ad, delivering a bid circular appealing directly to the security holders, or, more typically, will send a “bear hug letter” to the CEO (and/or the chairman). In the latter case, if the letter is rebuffed, its only way forward is to launch a takeover bid directly to the target’s security holders.
Oil companies’ collaboration to reduce trucking costs is not contrary to the Competition Act, says the Alberta Court of Appeal.(Photo: Todd Korol/Reuters)
Oil companies’ collaboration to reduce trucking costs is not contrary to the Competition Act, says the Alberta Court of Appeal.(Photo: Todd Korol/Reuters)
Just because a small service provider went out of business doesn’t mean a joint venture between two oil giants was the root cause, according to an Alberta Court of Appeal decision.
Add the Canadian Wheat Board to the list of organizations finding alternative means to tackle the risks lurking in its underfunded defined benefit pension plan.
Last week, the CWB announced it had signed a $150-million inflation-linked annuity policy with the Sun Life Assurance Co. of Canada that transfers investment and longevity risk from the wheat board’s defined benefit pension plan to Sun Life Financial.
An “annuity buy-in” is a type of investment held in a pension fund that allows investment and longevity risk to be transferred to an insurance company, while preserving members’ pension benefits.
The agreement is unique in Canada because it involves pension income that grows with inflation as well as the annuity buy-in solution.
The $150-million transaction is the largest single-day purchase of inflation-linked annuities in Canada, and the largest single-day purchase of a next-generation annuity buy-in in Canada.
CWB was advised by Aon Hewitt, as well as lawyers from Dentons Canada LLP pensions and benefits group including partners Scott Sweatman, Mary Picard, and pension associate Colin Galinski. Sweatman points out the concept of using an annuity to offset risk in a defined benefit pension plan is not an entirely new idea.
“The notion of having an annuity as an investment goes back to where we started, really. Many years ago companies would have annuities as part of their investment plans,” he says.
In fact that practice goes back to the 1920s, but over time pension plan sponsors moved away from buying insured annuity products and towards other risks such as equities for higher returns. But over the years, market crashes and roller coaster returns have plan administrators eyeing insurance annuity products again as DB plans struggle.
DB pension plans commit to pay set pensions to future retirees and were created decades ago when workforces were young and interest rates were high. But as interest rates fell and workers stayed employed longer, liabilities grew while asset values fell.
And while it’s large, the CWB annuity deal is small compared to some purchased in the United States in the last year to achieve the same transference of risk away from the company and to an insurer. Last June, General Motors Co. announced it would reduce its pension obligations by $26 billion by shifting assets and liabilities to Prudential Financial of America. And last October, Verizon Communications moved 25 per cent of its pension obligations, or $7.5 billion, to Prudential.
Sweatman also points out the CWB deal is not an “annuity buy-out,” which transfers all the liability out of the existing pension plan. And while it’s predicted there will be more annuity buy-in transactions announced in Canada this year — of significantly larger size — he cautions there isn’t a one-size-fits-all strategy when it comes to annuity solutions.
“You have to look at whether the organization can afford it and what the risk tolerance is,” he says. “CWB looked at its pool of assets and conservative stock portfolio and it made sense.”
Sweatman says unlike others who have been predicting the demise of DB plans for years, he thinks they will be around for some time to come and is actually a fan.
“Another client wanted to get out of its defined benefit plan and the cost was very expensive to go to a defined contribution plan. I’m still a big fan of defined benefit plans and I don’t think they’re all going to die off,” he says.
Even though the CWB has essentially outsourced the risk management portion of its pension plan to Sun Life for employees, Sweatman says there should be no visible change to employees in how their plans are managed.
Despite tough times, Scott Sweatman predicts defined benefit plans will be around for some time.
Despite tough times, Scott Sweatman predicts defined benefit plans will be around for some time.
Add the Canadian Wheat Board to the list of organizations finding alternative means to tackle the risks lurking in its underfunded defined benefit pension plan.
Situational awareness is a relatively new term, applied most frequently by the military, emergency services, and air traffic control. It is a complex field and has generated much study and many definitions. One I like simply defines situational awareness as “being aware of one’s surroundings and identifying potential threats and dangerous situations.”
So, what does situational awareness have to do with today’s in-house counsel? I believe that to be effective in-house counsel must practise good situational awareness in at least three areas: law, finance, and technology. Today I will focus on technology and save legal and financial situational awareness for another day.*
For in-house counsel, situational awareness may simply be knowing what is going on around you and its effect on your goals. Effective communication, understanding expectations, and careful monitoring of what is happening are especially important. Your training and experience also affect situational awareness. These concepts are both familiar and important to in-house counsel.
A few weeks ago, I spoke with a global search consultant about what it takes to be a good general counsel. Among other things, she described the importance of understanding the implications of technology and how to use it as an increasingly necessary skill set.
This got me thinking about two columns [http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202585662374&thepage=2] by Casey Flaherty, corporate counsel for Kia North America, describing how and why he audits his outside firms for their basic tech skills. Then, a few days ago, I saw another story about Flaherty entitled “Big law whipped for poor tech training” [http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202601218054&thepage=1] describing his keynote address about his tech audit at LegalTech West Coast.
Flaherty has long been frustrated by large bills for routine commodity matters, just like many other in-house counsel. In his eyes, law firm inefficiency is a major factor. He requires a firm to provide a senior associate to be tested on several basic skills such as using Word and Excel. Nine firms have taken the test and all have failed. He contends this results in higher bills and he takes five per cent off every bill until they pass the test.
Flaherty recognized a problem most of us face: We rarely use all of the technology tools available to us and the ones we do use we generally do not use to full capacity. (As I type this column, I am well aware that my Word and Excel skills are limited. I suspect the same is true for you as well.) Most significantly, Flaherty now uses this information to help his client.
I asked Jeff Brandt, the editor of Pinhawk, a daily law technology digest, about technology and situational awareness. He readily identified two “potential threats and dangerous situations” directly applicable to in-house counsel.
First, he noted the importance of cyber security and hacking for both corporations and law firms. He cited Bank of America auditing the cyber security practices of its law firms and the effort by Chinese hackers to scuttle the attempted takeover of Potash Corp. of Saskatchewan Inc. by BHP Billiton Ltd. a few years ago. Second, he referenced e-discovery and records retention, two issues that have been well documented in recent years as major concerns for in-house counsel.
These are but a few examples of how situational awareness can help you do a better job for your client. Indeed, for some it has become a minimum standard for professional competency. Last August, the American Bar Association stated that minimal professional competency includes keeping up with “the benefits and risks associated with relevant technology” in a comment to Rule 1.1 of its Model Rules of Professional Conduct.
How do you keep up to date without becoming a technological guru? I suggest a subscribing to a newsletter on legal technology issues. You might also consider joining a networking group that deals with IT and legal technology issues or simply checking out online technology resources from a variety of law and bar associations.
As one security expert asserted, albeit in a different context, situational awareness is more of a mindset than a hard skill. One does not have to be an expert; anyone with the will and self-discipline can exercise good situational awareness.
All in-house counsel should keep this in mind.
* I fully recognize that the “potential threats and dangerous situations” normally faced by in-house counsel are not equal to the challenges faced by the military, first responders, and others who first developed the concept of situational awareness.
b_150_0_16777215_00___images_stories_01-INHOUSE_Standard_photos_fred_krebs.jpgSituational awareness is a relatively new term, applied most frequently by the military, emergency services, and air traffic control. It is a complex field and has generated much study and many definitions. One I like simply defines situational awareness as “being aware of one’s surroundings and identifying potential threats and dangerous situations.”
The Federal Court says issues of litigation and solicitor-client privilege trump the interests of an individual seeking the completion of his unjust dismissal hearing.
In late May, the court heard an application for judicial review in BMO v. Sasso seeking to set aside the order of an adjudicator made during a hearing under the provisions of the Canada Labour Code that dealt with documents the Bank of Montreal claimed were privileged.
The hearing concerned a complaint by a BMO investment specialist, Gianni Sasso, that he had been unfairly let go by the bank.
A customer of BMO claimed another employee at the institution named Gregory Rao had viewed his account, and that he had misappropriated funds from that account. (Rao was the customer’s brother-in-law.) It was later alleged Rao had defrauded other BMO clients of millions of dollars and BMO and Nesbitt Burns initiated proceedings against Rao.
The bank’s client brought an action against BMO saying he told Sasso about his suspicions regarding Rao’s activity.
“The allegation is my client dealt with it on a low level and didn’t escalate it to a manager. There’s no suggestion he was involved in any fraud,” says Sasso’s counsel Danny Kastner of Paliare Roland Rosenberg Rothstein LLP.
BMO retained external counsel from Norton Rose Canada LLP to conduct an investigation, including an interview with Sasso, and to provide legal advice.
Sasso was dismissed by BMO as a result of the internal investigation. His lawyer then sought to have BMO produce various documents emerging from the investigation including notes made by Norton Rose lawyer Jeremy Devereux from the interviews with Sasso.
However, BMO’s lawyers claimed two forms of privilege on the information — solicitor-client privilege and litigation privilege. Kastner argued neither applied.
“We said even if privilege did apply it was waived by the fact they were going to put their own lawyer on the stand to testify about what happened during the investigation,” he says.
The adjudicator agreed privilege didn’t apply but the issue was escalated by BMO to the Federal Court for judicial review.
Lawyers for BMO were contacted by Canadian Lawyer InHouse for this story but declined comment. The Federal Court decision states they argued the circumstances were “exceptional” and the adjudicator’s order would require BMO to disclose documents “it truly believes are subject to privilege.”
The judge asked the adjudicator to reconsider the analysis of the information — some 30 documents.
Judge Roger T. Hughes noted the Supreme Court of Canada has stated that where a claim for privilege has been raised, the documents should be examined by the decision-maker, or the decision-maker should be satisfied on reasonable grounds, as to the interests at stake.
“Given the relatively few documents at issue, it was a fundamental procedural error for the Adjudicator not to examine the documents before making a ruling. I am advised by Counsel for BMO that a booklet containing copies of these documents had been offered to the Adjudicator for this purpose,” wrote Hughes.
It was determined the adjudicator dealt with the litigation privilege issue but not the solicitor-client privilege.
“What the Federal Court judge has said is not that the adjudicator was wrong, but that some of her analysis was problematic and she needs to re-do the analysis and come to a new conclusion,” says Kastner. “The judge didn’t ultimately say her conclusion was wrong.”
Kastner says the adjudicator took only a “description” of the documents from BMO and did not read them.
“So the judge said given there weren’t that many documents she should have looked at them herself first before making a finding about privilege,” says Kastner.
That leaves Sasso in limbo because there has not been a definitive pronouncement on whether privilege does in fact apply to the documents in question.
“We were still in the middle of our administrative proceeding — the unjust dismissal proceeding — this was just a preliminary issue of production and normally the principle is you don’t get to interrupt an administrative proceeding and go up to court for judicial review in the middle of it,” says Kastner. “Otherwise what you get is this incredibly fragmented process for an individual going up against a bank. What the bank is now able to do is bring endless proceedings interrupting it on the privilege issue.”
Until now, Kastner says there weren’t any cases from the Federal Court about whether an administrative proceeding can be interrupted for a judicial review regarding privilege determinations.
While it may be unusual for a reviewing court to step in at the stage this one did, Erin Kuzz, of Sherrard Kuzz LLP, says in this case it made sense.
“The situation should be pretty rare when you can review during a proceeding, but when you have a situation where if the adjudicator had said, ‘turn over the documents,’ and the adjudicator had turned them over — you can’t un-see those,” she says. “When you’re dealing with situations where there are elements of adjudicating a case that are so critical that they can’t be undone — you can’t un-ring the bell.”
Kuzz says she was “pleased” to see the court was prepared to look at the issue midstream.
“It’s one of those things where privilege is so sacrosanct — it would have to be the most extraordinary of circumstances for privilege to not hold. No matter what side of adjudication you’re on, privilege is critical. I’m quite comforted the court took it as seriously as it did and was prepared to step in at the stage that it did,” she says.
When the issue of privilege was reviewed shouldn’t have mattered.
“At the end of the day protecting something like privilege takes precedent over any individual’s interest in any specific matter and has to,” she says.
Until now, there weren’t any Federal Court cases on whether an administrative proceeding can be interrupted for a judicial review of privilege, says Danny Kastner.
Until now, there weren’t any Federal Court cases on whether an administrative proceeding can be interrupted for a judicial review of privilege, says Danny Kastner.
The Federal Court says issues of litigation and solicitor-client privilege trump the interests of an individual seeking the completion of his unjust dismissal hearing.
Legal Leaders for Diversity's new chairwoman Melissa Kennedy, who is general counsel of the Ontario Teachers’ Pension Plan, said the legal profession has a duty to pursue initiatives like this for those with disabilities.
Legal Leaders for Diversity's new chairwoman Melissa Kennedy, who is general counsel of the Ontario Teachers’ Pension Plan, said the legal profession has a duty to pursue initiatives like this for those with disabilities.
Legal Leaders for Diversity is expanding its efforts to include a new initiative aimed at encouraging the hiring of those with disabilities in the legal profession.
Under the Competition Bureau’s Criminal Cartel Whistleblowing Initiative, it will protect the name of whistleblowers. (Image: Shutterstock)
Under the Competition Bureau’s Criminal Cartel Whistleblowing Initiative, it will protect the name of whistleblowers. (Image: Shutterstock)
The day after SNC Lavalin told employees it was offering immunity to staff who come forward with knowledge of corruption at the company, the Competition Bureau announced it is launching a whistleblowing initiative and a push to demonstrate transparency in its own operations.
A sign is seen in front of a neutron spectrometer used for fundamental scientific research at the Chalk River nuclear facility. Photo: Chris Wattie/Reuters.
A sign is seen in front of a neutron spectrometer used for fundamental scientific research at the Chalk River nuclear facility. Photo: Chris Wattie/Reuters.
A federal Crown agency is not immune and must comply with letters of request to provide evidence and testimony in foreign proceedings, the Ontario Court of Appeal has ruled.
Monday, 20 May 2013 08:00

Back to the future

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b_150_0_16777215_00___images_stories_01-INHOUSE_Standard_photos_fred_krebs.jpgWhile much has changed over the past 20 to 30 years, there is still substantial continuity in the manner in which in-house counsel have contributed to the success of their employers. While the issues change and skills and techniques evolve, many of the basic concepts remain the same.
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