Predictions for 2015

Fernando Garcia
For last year’s words belong to last year’s language
And next year’s words await another voice.
And to make an end is to make a beginning.
? T.S. Eliot

There is nothing more difficult than following in the footsteps of leaders and visionaries like Fred Krebs. For 24 months, Mr. Krebs shared with us his wisdom, experience, and visions of the legal profession of yesterday, today, and tomorrow. We all benefitted from his insights and we all became better professionals as a result of his teachings. I, and all readers of Canadian Lawyer InHouse and the in-house profession generally thank you Mr. Krebs for your efforts and for your advice!

In light of his departure, I will do my best to humbly take over where he left off. In this, and the articles that follow, I will look at the unique challenges and opportunities that exist for in-house counsels with regard to our careers, our work, and our profession generally. Regardless of whether you are in the public or private sector, an OLO (only legal officer), or a member of a large legal team, I hope to provide insights and advice that will help prepare and guide you in your own journeys.

With regard to my background, I have held the role of general counsel for the last eight years; first at Navistar Canada and, over the last year and a half, at Nissan Canada. Over this time period, I have seen many changes take place with regard to the role of a general counsel. The role, in my opinion, has become increasingly focused on becoming an intermediary between the legal profession and the business practice of our clients.

I have also witnessed the increased awareness of the importance of encouraging and advancing diversity and inclusiveness within the legal profession, both in-house and in private practice. Through groups like Legal Leaders for Diversity, GCs are able to take a leadership role in advancing these objectives and changing our profession. This is why I am involved and support these groups. These experiences have shaped my practice and my views as to the role of the GC and will be themes of discussion in future articles.

Predictions for 2015

Finally, as we begin 2015, we cannot end an introductory article on advice to the in-house bar without providing a short list of some of the issues and matters that I believe will become increasingly important to the in-house bar and our practices in this new year and in the short term future. In no particular order, in my opinion these are:

•    Dealing with the fallout of the Supreme Court of Canada’s Bhasin v. Hrynew decision relating to good faith in enforcing contractual rights. It will be key to see how this concept develops and how it will affect the advice given to clients in dealing with contractual matters.

•    Once again in the realm of contracts, the fact the Supreme Court has found in Sattva Capital Corp. v. Creston Moly Corp. that, even absent ambiguity, judges will be able to consider the context within which contract was reached, will fundamentally change the process of analysis and risk allocation in dealing with contract terminations. This is particularly so for those dealing with labour and employment matters.

•    I expect we will see increased outsourcing of legal services to service providers nationally and internationally. This shift will be facilitated by the use of technology and will result in greater pressure to implement alternative fee arrangements and will change the relationship between in-house and external counsel.

•    It will be interesting to see whether the recommendations made by the Law Society of Upper Canada’s “Developing Strategies for Change: Addressing Challenges Faced by Racialized Licensees” consultation paper helps in increasing diversity within the legal profession in the long run.

In conclusion, for you and I, 2015 will bring many new challenges and, as long as we are willing to open up our arms and minds to accept and embrace these challenges, it will also bring many new opportunities. Have a happy and prosperous new year!

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