Positioned for Growth

It’s easy to understand why the average Canadian might get discouraged thinking about the state of the economy if one relied entirely on the business pages of the country’s news outlets.  But if you take some time, as we did in late December, to listen to general counsel at some of the country’s most dynamic organizations you might soon feel a renewed sense of optimism about where things are headed. Growth may have slowed but the projects these lawyers are working on with the business units of their companies is exciting and bodes well for Canada and its prospects in a global economy.

Canada is still seen as a safe, progressive country to be doing business with.

Proof of this can be found in the following snapshots of discussions we held with general counsel in a variety of industries about everything from legislative
pressures and external firm relationships to the projects that are putting demands on their growing internal legal departments.

Daniel Desjardins
SVP, general counsel and corporate secretary,

Where do you see growth occurring for Bombardier and the legal department in 2014?
We see there is still growth in our traditional markets and not surprisingly there is lots happening in emerging countries. So in the context of the legal department there is a big learning curve. We need to know about the culture, the legal scene, the contractual setting, tax and accounting, and creating legal entities as we go into countries we’ve never done business with before.

We are also seeing a lot of Public Private Partnerships in North America and Australia and they drain a lot of resources for many months. They take well over a year before they get started. When you do get those projects the team disappears for a year on that project alone.

The global economy is not flourishing but the complexity of deals is not diminishing in that context. We have to live within budgets and we’re trying to manage our resources as efficiently as possible.

How is the law department at Bombardier integrated into the business?
The philosophy I’ve tried to instill at Bombardier over the years is one of the legal department being well-connected to the operation and integrated into the business units. We have 175 lawyers but they’re not all in Montreal; they’re in 17 countries with the business units and they’re very close to those business units. They are close to the daily operations which is all about selling trains and planes.

I don’t think there is any law firm in the world that can sell trains and planes the way we do internally at Bombardier so we’re extremely well-connected with the business units. We’re part of the marketing team, we’re part of the bid team — we make all those bids around the planet. We’re part of the contracting team and risk management so it’s really embedded into the core of our operations. That’s how we add value.

What has been your approach to building the internal legal team and dealing with external counsel?
The in-house team has to be more than just lawyers — they are part of the business units and they are the glue to many things. We are also very decentralized. When we do a bid on a contract they have to master the contract as a project we have to deliver. It’s all about project management. They put it all together: the accounting and tax aspects often in a multi-jurisdictional situation. They may also have to get input from the insurance group.

It’s all about having the right controls in place and empowering the legal team to do what they have to do. They have good processes and controls — they know the mandate and know how far they can push on certain things. If we have to go for arbitration, for example, or to court the team knows what it can say yes and no to. They are very empowered.

When I joined the legal department 16 years ago we had 50 lawyers and now we’re at 175 lawyers. The company has gone global and it’s more beneficial to in-source more of the legal work. We’re at a point where we need to manage what we do with those resources and so it goes back to a discussion with law firms. We are always under pressure to reduce our costs and they really have to feel the same business pressures we do.

When I sit down with the managing partners of law firms to have the discussion I say, “Imagine if you ran your own business as you would run the law firm. Every mandate you have in your firm would have to have a bid on it and you would have won because you are the lowest bidder. It would change the way you run your law firm.”

Audrey Mak
Associate general counsel and vice president, pension legal,
Ontario Municipal Employees Retirement System

What do you see as the primary challenges for the OMERS Pension Legal department in 2014?
Working at a pension fund is not what one would have thought it would be like even 10 years ago. Pensions are in the forefront right now. At OMERS our CEO is a dynamic, innovative person and that really trickles down so we get some really interesting work.

We are very focused on OMERS’ strategic plan which has a growth agenda. Part of that strategy is to get more assets under management which will ultimately help the sustainability of the fund and benefit our plan members. Globally, we now have offices in London and New York. This of course raises challenges in terms of complying with foreign laws. Domestically, we are focused on plan consolidation and membership growth. We’re hoping that other plans can consolidate their assets and liabilities with us. We’re waiting for the regulations we need to make this happen.

Another high priority is being innovative on what we can offer our members. For example, in 2011, at members’ request, we added the Additional Voluntary Contribution option into the OMERS Primary Pension Plan. Two new features are being added to the AVC option (year-round lump sum transfers and automatic payroll deduction). In addition, depending on pending PBA regulations and necessary approvals, we hope to provide members with the option to receive an income stream from their AVC account at age 71.
Not only do we care about our plan but we’re also involved in the general public debate on adequate retirement income for Canadians. Given OMERS’ experience, we think we have a lot to contribute to the discussion. OMERS’ position is that it is important to provide enough options for people to retire on an adequate income. My team is a key contributor to both pension reform and these important public policy discussions.

How do you approach risk management from the perspective of the OMERS Pension Legal department?
Given the evolving case law and legislative reform in the pensions area in the last few years, it is critical that we continue to closely monitor these developments and determine how they affect our plan. For example, the Carrigan case really threw a curve ball to all plan administrators; we have to figure out how to administer the plan now that that case is out there. Is the government going to do something in the legislation to fix it or do plan administrators have to figure it out on their own?

Another area that is high priority for my team is safeguarding the privacy of our over 429,000 members’ personal information, especially with the increasing use of electronic communication (such as myOMERS). We need to constantly consider and implement best practices throughout OMERS and monitor things like the Canada anti-spam legislation which is due to come into effect July 1.

Finally, good governance is always a way to mitigate risk so it is important to make sure we’re ahead of the issues and fully inform our board.  As a result of a recommendation of the Dean Report, the OMERS Administration Corporation has a new independent board chair, George Cooke, as of Oct. 1, 2013. The OAC board will also have five new board members over the next few months. Board education and orientation will be a high priority for the whole OMERS legal team, given that OMERS is so highly regulated and the activities in which we engage are unique and complex.

What has been your experience working with the business units at OMERS?
I have been lucky as I have worked closely with Pension Legal’s core client (the Pension Services Group) since I was first hired in 2005. In fact for about four and half years, Pension Legal was part of that business unit organizationally, reporting to the Chief Pension Officer. It was an amazing opportunity to be entrenched in the pension administration side of the business and to learn how it’s run, the challenges they face and how best to address legal issues. That’s really important because it enabled us to build a strong foundation upon which to work together on day-to-day files, as well as strategic projects from the ground up, such as the AVC option.

Simon Fish
EVP, general counsel, BMO

What major business challenges face the BMO legal team in 2014?
The last couple of years have been very demanding for financial services across the board. Canadian banks generally have done well but it’s a global system so we’re all affected. I don’t expect the regulatory scrutiny to diminish in any way.

So far as our own bank is concerned, I’m very optimistic. 2013 was a good year and I think 2014 is where we will build on that and I think it’s going to be an exciting time for us. We’ve been expanding into Asia considerably — we are the only Canadian Bank to be fully licensed in China, for example, and we now have quite extensive operations in China, Singapore, and Japan and that represents an important growth opportunity for us.

In many respects China is operating in an emerging legal framework so having good lawyers and compliance officers in place in our operations over there has been especially important. We’ve ensured we have top-rate lawyers there and we’re in constant communication with China and encourage our Chinese lawyers to come here. We also second lawyers from here to China for periods of time to ensure there is a general alignment in approach and understanding because culture differences and operating differences can lead to all sorts of legal challenges.

How do you grow your team to keep up with the demands of the business?
We never rest on our laurels. We have a significant knowledge management and professional services team whose job it is to constantly come up with innovative products and ways of developing and delivering legal services to the business.

I like to think of us as being independent yet truly engaged in all of the businesses so we’re right there when the appropriate decisions are being made.

I liken it as to being much like the manufacturing division of the enterprise. In the same way a consumer company might manufacture consumer products or a manufacturer might sell petroleum products we manufacture and sell contracts.

We call them loans and deposits and structured investment vehicles, notes and derivatives, but at the end of the day they are all contracts and legal instruments. So the role we lawyers play in our institutions is not unlike that of the engineer on the factory floor of the manufacturing division. We make the products this institution sells so our job is to make them safely before we put them in the hands of the consumer.

Can you describe the system you have in place for reviewing the bank’s external counsel?
We meet at least annually for formal reviews and perhaps more frequently for more informal performance reviews with all of the firms.

I would say the firms have all responded well to these reviews and they welcome the opportunity. We get quite granular around the performance of individual partners or lawyers that have been working on particular matters.

We also ask for feedback about ourselves. We ask how we’re doing and what concerns them about our own capabilities or how we’ve gone about working with them on a particular matter.

The conversations are sometimes difficult to start but they’re always well appreciated. I generally sit down with the managing partners of the firms concerned. We recognize it’s really about the quality of service that’s provided.

The relationship with outside counsel is like hiring people — the general counsel really shouldn’t delegate it. I have a support team that helps me manage it but at the end of the day I sign the engagement letter and attend those performance reviews and insist on seeing the most senior people at the law firm.

Robyn Collver
SVP, secretary and general counsel, Canadian Tire

What new business challenges face the Canadian Tire legal team in 2014?
People think of Canadian Tire as being the Canadian Tire store but from a legal perspective we cover a lot of law. We are a controlled public company, which brings a bit of a twist. We’re in retail, retail gas, financial services, and real estate and we employ over 85,000 people.

Our legal department deals with financial services, competition law, banking, insurance, real estate, municipal regulations — you name it, it pretty much affects us.

In 2013 we had a busy year. We announced we intend to see a financial partner for our credit card assets and funding liabilities for financial services. We kicked that off in August and we’re not very far into that process. It will represent a significant amount of legal work in 2014. Even the process of looking for a partner will absorb a fair amount of time.

This past year we also created a Real Estate Investment Trust so now in addition to a bank we now have a public company in which we have an 85 per cent interest and it’s listed on the TSX. We will be building processes and controls and working on disclosure for that entity and working on a growth plan for it over 2014.

Our organization is also really focused on enhancing the retail experience and connecting with customers in a meaningful way. To that end we have opened a new digital development lab in Waterloo — a retail technology lab taking advantage of minds in that area to develop new retail technology.

What’s your approach to risk management?
In the legal department it’s about trying to anticipate where you will have challenges throughout the course of a transaction; to solve the problems quickly and effectively. So it may look like it’s overstaffed in a particular area but when the tsunami hits you have sufficient people in that area to run with it.

Because the business is moving fast our legal team is really engaged in the work of the organization. We’re constantly looking for ways to achieve our objectives in a way that is consistent with our brand. What that means is that our collective focus is not just on complying with laws but on being consistent and enhancing the brand.

In terms of risk I’m very focused on execution risk. Risk management for me is really about our enterprise risk management program. We work very closely with the enterprise risk management team to develop the program. We identified 11 risk areas like strategic operational risk, risk of our key relationships, and legal risk is one of those 11 but under that legal risk heading there are more than 10 pieces of significant legislation that affect Canadian Tire, and then if you looked at every piece of legislation that affects Canadian Tire it would be over 10,000.  

How do you approach managing external counsel?
I think the realization I’ve come to is that with 20 lawyers in our department we’re like a small firm operating without the support that small firms buy themselves. I think there needs to be a market change with respect to how external firms work — we have to get the market to accommodate our needs.

We have alternative arrangements for our bulk work. We have an arrangement with respect to our intellectual property work and our Ontario real estate work, then beyond that there isn’t a lot of work that is routine enough to send it out.

Leanne Geale
Associate general counsel,
Heavy Oil and Head of Legal for Shell Canada Limited

Can you describe the relationship the legal department at Shell has with the business units?
In Shell Canada there are approximately 40 lawyers and 20 support staff — almost all of whom are located in Calgary. We support the full spectrum of Shell businesses in Canada.

We follow the whole life cycle of a hydrocarbon — everything from traditional oil and gas exploration and mining through to refining of finished products you would put in your gas tank at a retail station along with chemical production and different forms of hydrocarbons such as LNG and natural gas.

This team supports all of those businesses in Canada as well as the legal work associated with running a large organization like Shell Canada, such as corporate and compliance and other matters that arise.

We’re fortunate at Shell that the business does appreciate the value legal counsel adds and it’s been that way for quite a long time.  It’s become a complete partnership at all levels of the business. We have a legal director at the seat of the table at the highest echelons in Royal Dutch Shell overseas and that trickles through to all of our operating companies. I sit with our executive team here in Canada both for our heavy oil business and class businesses. At different levels of the organization in Canada we have lawyers who are seen not only in their legal capacity but as a contributor to the leadership team, so whether that be on a particular project or business unit or on a committee with a joint venture. We’re really looked to to contribute our legal knowledge but also our commercial astuteness because we pride ourselves in really understanding the business we support and adding that value as well.

How is the business growing next year and how will that impact the legal department?
We have some exciting challenges heading our way for 2014. One of them is our Carmon Creek project announced Nov. 1. It is a development project in the oil sands area and we’re working hard to support that team. That includes everything from contracting and procurement to project agreements to assisting on HR processes to get the organization in place — everything you would imagine around an organization and a project of that size which will be approximately 80,000 barrels a day.

Another very exciting project is our LNG project on the West Coast which is in early days but there is a lot of effort going into the legal agreements in terms of pipelines and construction, the technology we will use, and working with the local stakeholders and working with the regulator process.

Another project that will really take hold in 2014 is working on market access — ensuring that our products have a place to go and to the extent we can support our business colleagues in ensuring we can find a home for our product.

There is also the Quest Carbon Capture and Storage Project — one of the first of its kind in the world with oilsands development. It will reduce CO2 emissions from Shell’s oilsands operations by more than one million tonnes a year by capturing CO2 from its Scotford upgrader and permanently storing it deep underground.

What is the legal department’s approach to risk management?
I really see the evolution happening with much more of a focus on lawyers activing in a proactive way when it comes to risk. I think in-house counsel adds value most when identifying and eliminating risk up front before they become barriers on critical pathways to commercial opportunities. Long gone are the days when you sit in your office and have the business make appointments to see you. We are proactively involved — we need to clear the path for business.

What is the legal department doing to change the way it sources external legal counsel?
We’re always in discussions with external providers on how they can add value. Of course the important thing for us is value for our money and being competitive in terms of how we’re spending our budget.

We try to do a lot of the work in-house because that goes to our value-adding mantra in terms of being able to provide the business with varying forms of legal counsel that understands the business. We typically go outside and use external counsel in areas where we don’t have a particular expertise for that matter or where we have a particular project or matter where we need extra horsepower.

One thing that is definitely growing in the global legal market is legal process outsourcing — having commodity work or lower value work done by not necessarily law firms but services based in India or the Philippines where that work is predicated upon repetitive need for that type of work and we don’t find we have the demand for that in Canada with respect to our business.

What’s your view on diversity in the legal department?
I’m on the executive committee for Legal Leaders for Diversity. We are really focused on raising our game within the legal industry both in-house and with the law firms and law schools in recognizing the value of diversity and inclusiveness and how that can add to the bottom line both of law firms and the value of the advice and the completeness of the answers we can apply to our commercial clients to make them more competitive.

We have had conversations with external firms more generally about this issue, usually when we are having our relationship conversations with the firms we talk about the importance of diversity and inclusion and we want them to produce a diverse team as well.

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