Navigating the legislative and regulatory landscape

When you are general counsel and corporate secretary for a large staffing company, the current legislative landscape in Ontario can look a little daunting, as Lara Speirs knows all too well.

Speirs took on the role of Randstad Canada’s first general counsel two and a half years ago. Randstad Canada is a staffing, recruitment, and HR services company with 85 branches across seven provinces in Canada.

Apart from the day-to-day challenges of running a large organization’s legal department, Speirs sees two areas dominating her focus right now. The first, she says, is the need for strong employer-side responses to Ontario’s review of the changing nature of the workplace, which may include possible recommendations to amend employment standards legislation, particularly as it concerns temporary workers.

 Shortly, the special advisers mandated to review the file will be releasing their interim report. Speirs is seeking to establish a stronger voice, along with trade associations and employer organizations, to help clarify what she calls some misconceptions about the temporary workforce and to educate on the benefits that flexible work arrangements afford both the general economy and temporary employees themselves.
“Temporary employees in Ontario already enjoy legislative protections that significantly exceed those found in any other Canadian jurisdiction,” Speirs says. “Any further legislative reform will likely unduly harm the flexible labour market, which plays an important role in the modern economy where flexibility and the means to respond to rapidly changing developments are crucial.”

The second area of concern, which broadly applies to all employers across Canada, is the growth of class action certifications in Canada in the area of privacy and data security. “From my perspective, cybersecurity and privacy law require comprehensive project management with multiple stakeholders at the table: legal, IT, HR, insurance and compliance. It’s about them all coming together and rolling out a robust data security program.”

While insurance companies have come forward with improved cybersecurity insurance policies, developing robust data security procedures and programs are paramount for all Canadian employers,” she says.

Regulatory demands around legislation such as Canada’s Anti-Spam Legislation are top of mind for most in-house counsel, says Heather Innes, past chairwoman of the Canadian Corporate Counsel Association.
“I think the issues that are going to weigh heavily this year are regulatory — compliance and regulatory issues continue to be very challenging and I think privacy has put a lot of murky clouds hovering over us,” says Innes, adding that many still feel confused by CASL’s requirements. “People are still not certain what steps actually achieve the intended outcomes of the legislation.”

Speirs agrees. A full year and a half in and what was revealed in 2015 was heavy enforcement with significant penalties to companies such as Compu-Finder (fined $1.1 million) and Plenty of Fish ($48,000) for failure to have the appropriate unsubscribe mechanisms in place.

Legislative changes are also occupying Brent Davis’ time at McMaster University in Hamilton, Ont. Davis, who is corporate counsel with the institution’s office of legal services, says changes to the Occupational Health and Safety Act and the definition of worker will have an impact on all the universities in Ontario.
“We are working through what that means for students, for example, who go out for co-op and other work placements. That’s a big piece of work,” he says.

Last year, the Ontario government introduced a new definition of worker under the OHSA that expands coverage to unpaid students from secondary schools and other unpaid learners or trainees who are not employees for the purposes of the Employment Standards Act, 2000.

The province’s “It’s never OK” action plan on sexual violence and harassment is also something on which Davis is focused. In late 2015, the government proposed a law forcing employers to take sexual harassment and violence complaints more seriously and to create an easier path for victims taking legal action. The legislation aims to make “workplaces, campuses, and communities” safer and “more responsive to the needs of survivors and to complaints about sexual violence and harassment.”

If passed, the legislation would require every publicly funded college and university and private career college to have a policy on sexual violence and review it every three years. Also, employers would have to investigate harassment incidents and complaints properly and have sexual harassment prevention programs. It would also remove the limitation period for all civil proceedings based on sexual assault and, in certain cases, sexual misconduct or assault, so that survivors can bring civil claims forward whenever they choose to do so.

McMaster has updated its discrimination and harassment policy — that was rolled out July 1 of last year, but Davis says there is still a lot of work in learning and education among the community that legal staff is helping with.

Davis has been at McMaster eight years and there are three lawyers in the department that was formalized in June 2014. Much of what they do is focused on what the health science and other faculties do and around a lot of the entrepreneurship funding from the province. “There is lots of work there about trying to maximize the return to the community on some of the investments they make on the research side to make sure the intellectual property created in the university does make its way back out to help the wider society,” he says.

Figuring out how best to source external legal services continues to challenge in-house counsel, but many, like Davis, are turning to their procurement departments to help with the process and narrow the roster while at the same time keeping a balance between big law and local providers.

When Davis created the office of legal services, he went through a procurement process with help from procurement services at McMaster. “We created a request for proposal and had 33 law firms that responded,” he says. “We had the grading criteria, and eventually through a robust process, narrowed it down to five. So we have five external law firms that have their own area of specialty that provide services to us. We wanted a mix of large and small and we wanted representation from the local firms.
Out of the 33, we had seven Hamilton law firms that bid on work. We definitely wanted a mix — we have a large Toronto firm, a local Hamilton firm.”

Davis says all of the firms that bid were “creative and flexible” in offering a variety of different alternative-fee models — something he asked for in the RFP. “Some things are going to be open-ended and they won’t be able to give us firm quotes, while some work they might see over and over again they should be able to give us a firm quote on and a range. That’s worked pretty well — it gives us more of an insight into forecasting what legal services might be for a particular matter.”