Jennifer King at Gowling WLG on ESG and being recognized as a Top 25 Most Influential Lawyer

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Below is a summary of the conversation, edited for length and clarity:

How did it feel to be recognized as a Top 25 Most Influential Lawyer?

It was an honour to win and be nominated. When I heard about it, I felt that I was nominated because of a team effort for the work on the injunction concerning the Ambassador Bridge. That was not just within the firm but also with our client and outside expertise in the legal field.

Tell me about your practice and accomplishments that helped you win this recognition.

I started as a general civil litigator. When I came to Gowling WLG in 2016, I specialized in environmental law, including ESG and climate change.

Interestingly, moving from a general civil litigation practice to specializing in environmental was an expansion. Environmental law is an exciting area of the law. I moved from solving disputes to thinking about larger administrative and public law issues. For example, I deal with issues of regulation, municipal bylaws, and engaging with brownfields.

The issue of ESG, or environmental, social, and governance, started to be discussed among lawyers around 2018-9. It came out of the investment area. If you asked a lot of environmental lawyers about it at the time, we'd say these are issues we've been dealing with in our practice the whole time, like environmental regulation, risk and litigation. It's our bread and butter.

But since 2018-9, many law firms, including ours, have had an ESG practice group. It is developing into an interesting area of cooperation within the law. You don't have ESG lawyers; instead, there are ESG regulations and risks in every area of law. We see this in the proliferation of regulations around climate change and ESG today.

How has your role evolved over that time?

I became involved in the ESG group a few years ago. Defining ESG is an interesting question. Osgoode CPD started an “ESG, climate risk and the law” course to try to do that, and I've just recently taken over as program director for that certificate program.

It's not just one piece of regulation; it's many, as well as voluntary disclosure standards. We're seeing a move from voluntary ESG disclosure to more mandatory requirements, including modern slavery and GHG emissions, for example.

When we think about regulation, we think about administrative and public law or the government's relationship with citizens. In the last year, I've taken over the co-lead role for the administrative and public law group at Gowling WLG.

Tell me about your work in the Ambassador Bridge blockade injunction.

Many emergency issues have arisen in the last few years around the pandemic. The protests and blockade of the Ambassador Bridge raise several issues in different areas of law.

I’d previously done some administrative and municipal law work for Windsor. The Ambassador Bridge injunction was partly a traditional injunction, but ultimately, it was a municipal or statutory injunction specifically available to enforce municipal bylaws.

This had to do with my experience with municipal law and my understanding of that role, but it was also a unique injunction in that I was representing a local level of government while making sure that they were enforcing their bylaws, protecting this major piece of critical infrastructure, and balancing the rights of the protesters.

I pride myself on my approach to working with clients. However, I had to keep in mind that this wasn't just a legal issue but also a major political issue. It involved the police and other levels of government, where the municipality couldn’t direct the police. 

So, what could the municipality do? There were inter-jurisdictional issues and the need for cooperation between different levels of government. As municipal and environmental lawyers, we deal with that quite a bit anyway.

In law school, many lawyers associate the Constitution with the Charter. As environmental lawyers, though, we deal with other federalism issues all the time. That became a major issue with the protests and, ultimately, was an important theme in the Public Order Emergency Commission’s report.

How was that high-profile work formative in your legal career?

It was undoubtedly formative for several reasons, including that the hearing was done virtually. It was still during some of the pandemic restrictions and had to be done quickly.

As lawyers, we must be there with our clients. These emergencies don't happen on a Monday when you come to work. That's true for the lawyers, but it's also true for everyone who worked on it.

I found that when the issue needed to be resolved, everyone involved emphasized collaboration and cooperation. This included the legal team, affiants, and the city staff, who had to post notice of the injunction. You can see that when you look at the commission's report. It was not a problem that could be solved solely by the courts. It had to involve everyone's cooperation and coordination.

Even though it was challenging, it was also quite satisfying because of that.

What broader trends do you see in ESG affecting corporate governance?

A lot is going on this year.

In 2018-2019, our ESG practice group leaders advised that even though mandatory reporting wasn’t required, the focus was on climate change. Companies had to think ahead and faced a lot of pressure from stakeholders and investors to carefully consider the non-mandatory disclosure standards and ensure they had the data and were disclosing it before it became mandatory.

Since then, we've seen mandatory disclosure, for example, from the SEC in the US. It's currently under litigation, but they finally issued those.

In Canada, we've been waiting for mandatory disclosure for several years, essentially waiting for what's happening in the US. This year, we have compulsory disclosure of modern slavery; we also see it for some banks.

We're going to see some more mandatory disclosure in Canada, and we're seeing a real increase in litigation. A few years ago, there were many reports about climate change litigation against governments, saying their standards weren’t stringent enough and that this was harmful to the rights of youth and others. We saw an increase in that kind of litigation in Canada, following in the footsteps of what's happening abroad in Europe.

We are now witnessing increasing strategic climate litigation against corporations claiming their standards are not high enough. We're seeing that in Europe, and I anticipate we'll see more of that in Canada. There have also been many greenwashing claims, so agencies worldwide, including in Canada, are investigating more of them, and we are seeing more enforcement and class action litigation.

As we start to see actual mandatory disclosure, we will get more information about practices and data from corporations, which may lead to more litigation. We're also seeing public bodies disclosing their own ESG and GHG emissions and coming up with their targets to meet net zero.

What advice do you have for young lawyers or students interested in practising in ESG, administrative and environmental law?

I talked to people who had practices that were interesting to me and who seemed happy.

I'm predominantly a litigator, although I give regulatory advice in other areas. As a litigator, you can dig into topics. It would be best to work on cases you are passionate about, but you can find a lot of interest in any case you're on, big or small. When a case comes along that might raise existential threats, like the greenhouse gas pollution pricing act reference I was on a few years ago, you then have the skills to take that case.

For young lawyers, you should pick areas that you're passionate about and engaged in. This way, you can meet your clients and perhaps be even more engaged and passionate about their issues than they are. Talk to lawyers who are doing the kinds of work that you want to be doing in 10 years and who seem really excited about it, and ask them how they got there.

ESG is not really a practice on its own. For example, with procurement legislation, the federal government may have a policy requiring procurements over a certain amount to consider bidders' net zero commitments. So, procurement lawyers must worry about policies and regulations that engage with ESG issues.

ESG touches on any lawyer who deals with these kinds of regulated industries. We're seeing ESG incorporated into many different areas of law, and it requires collaboration across various practice areas.