• No results found

RECENT DEVELOPMENTS IN THE LAW OF PRIVILEGE

N/A
N/A
Protected

Academic year: 2021

Share "RECENT DEVELOPMENTS IN THE LAW OF PRIVILEGE"

Copied!
39
0
0

Loading.... (view fulltext now)

Full text

(1)

STIKEMAN ELLIOTT LLP | MONTRÉAL TORONTO OTTAWA CALGARY VANCOUVER NEW YORK LONDON SYDNEY www.stikeman.com

RECENT DEVELOPMENTS IN

THE LAW OF PRIVILEGE

In-House Counsel and the

Challenge of Protecting Rights

(2)

STIKEMAN ELLIOTT LLP | MONTRÉAL TORONTO OTTAWA CALGARY VANCOUVER NEW YORK LONDON SYDNEY www.stikeman.com

Keeping you in the know on key areas of Canadian business law –

that’s the goal of Stikeman Elliott’s business law blogs. There’s no better place

to turn to for up-to-date information and analysis.

In the know.

CLASS ACTIONS CanadianClassActionsLaw.com COMMUNICATIONS CanadianCommunicationsLaw.com COMPETITION / ANTITRUST TheCompetitor.ca

EMPLOYMENT, LABOUR AND PENSION CanadianEmploymentPensionLaw.com ENERGY CanadianEnergyLaw.com SECURITIES/CAPITAL MARKETS CanadianSecuritiesLaw.com STRUCTURED FINANCE CanadianStructuredFinanceLaw.com

TECHNOLOGY AND INTELLECTUAL PROPERTY CanadianTechnologyIPLaw.com

email updates | rss feeds | twitter

Subscribe directly at any of our blog sites

or go to www.stikeman.com

(3)

STIKEMAN ELLIOTT LLP MAY 31, 2012

RECENT DEVELOPMENTS IN

THE LAW OF PRIVILEGE

In-House Counsel and the

Challenge of Protecting Rights

AGENDA

8:00 am Breakfast and Registration 8:30 am Welcome and Introduction 8:35 am Presentation

David Byers, Partner Stikeman Elliott Clifford Rand, Partner Stikeman Elliott

9:20 am Question and Answer Period 9:30 am Closing Remarks

(4)

STIKEMAN ELLIOTT LLP MAY 31, 2012

RECENT DEVELOPMENTS IN

THE LAW OF PRIVILEGE

In-House Counsel and the

Challenge of Protecting Rights

CONTENTS

SPEAKERS

David Byers, Partner, Stikeman Elliott Clifford Rand, Partner, Stikeman Elliott

PRESENTATION SLIDES

Recent Developments in the Law of Privilege

FIRM PROFILE

(5)

STIKEMAN ELLIOTT LLP MAY 31, 2012

RECENT DEVELOPMENTS IN

THE LAW OF PRIVILEGE

In-House Counsel and the

Challenge of Protecting Rights

PROFILES OF TODAY’S SPEAKERS

David Byers

Partner, Stikeman Elliott

Clifford Rand

(6)

STIKEMAN ELLIOTT LLP PROFILE

David R. Byers

5300 Commerce Court West, 199 Bay Street, Toronto, Canada M5L 1B9 Direct: (416) 869-5697 Fax: (416) 947-0866 dbyers@stikeman.com

Law Practice

David Byers is head of the firm’s Litigation Group in Toronto, co-chair of the firm’s litigation practice nationally, and co-head of the Insolvency & Restructuring Group in Toronto. He is highly experienced in complex commercial litigation, including product liability, securities, insolvency and insurance,as well as in domestic and international arbitration.

Mr. Byers has extensive advocacy experience appearing before both the Trial and Appellate levels of courts in Ontario. His representations reflect a practice of extraordinary depth and scope. He has acted for companies and their management in an exceptionally broad range of industries, including manufacturing, technology, pharmaceutical, financial services and tobacco. And, he has acted for both lenders and debtors in several court supervised restructurings.

Mr. Byers is listed and recognized in the following publications:

> The Canadian Legal Lexpert Directory 2012 as a leading practitioner in Insolvency,

Corporate Commercial, Directors’ & Officers’ Liability and Securities Litigation, and Class Actions.

> The 2012 Chambers Global Guide to the World's Leading Lawyers for Business as a recommended lawyer for Dispute Resolution: Ontario and Restructuring/Insolvency.

> IFLR1000's The Guide to the World's Leading Financial Law Firms 2012 as a leading lawyer in Restructuring and Insolvency.

> The Best Lawyers in Canada 2012 in the areas of Bet-the-Company Litigation, Class

Actions Litigation, Corporate and Commercial Litigation, Director and Officer Liability, Insolvency and Financial Restructuring, and International Arbitration.

> The 2012 Lexpert/American Lawyer Media Guide to the Leading 500 Lawyers in

Canada for Insolvency and Corporate Commercial Litigation.

> The 2011 Lexpert Guide to the Leading US/Canada Cross-border Litigation Lawyers in

Canada for Insolvency/Restructuring and Corporate Commercial.

> Legal Media Group’s 2012 Benchmark Canada, the Guide to the World’s Leading

Litigation Firms and Attorneys (Inaugural Edition) as a pre-eminent litigation practitioner

in Ontario.

> The International Who’s Who of Insolvency and Restructuring Lawyers 2011 as a

leading lawyer earning the praise of clients domestically and internationally and receiving feedback stating that "he's absolutely fantastic. He gets right to the heart of the issue and gets things done.”

(7)

STIKEMAN ELLIOTT LLP PROFILE

> The 2011 Who’s Who Legal International Who's Who of Commercial Litigators as a leader in Commercial Litigation.

> PLC’s Cross-border Dispute Resolution Handbook 2011 as a leading lawyer in dispute resolution.

> PLC’s Cross-border Restructuring and Insolvency Handbook 2011 and 2011 PLC

Which Lawyer? as recommended in the area of Restructuring and Insolvency.

> The 2010 Lexpert Guide to the Leading US/Canada Cross-border Corporate Lawyers in

Canada in the area of Insolvency & Financial Restructuring.

> The 2010 Legal Media Group’s Guide to the World's Leading Insolvency and

Restructuring Lawyers.

> The 2010 Legal Media Group’s Guide to the World’s Leading Litigation Lawyers.

Professional Activities

Mr. Byers is a member of the Metropolitan Toronto Lawyers’ Association, the Canadian Bar Association, the Insolvency Institute of Canada, the Litigation Counsel of America, and a member and former director of The Advocates’ Society.

Publications & Presentations

Mr. Byers has participated in numerous panels and conferences as a speaker on a number of diverse topics. He is co-author of the "Canada" chapter in the International Comparative

Legal Guide to Class and Group Actions 2012, and Creditors’ Remedies in Ontario (Toronto:

Butterworths, 1994).

Mr. Byers has spoken on many legal issues, including:

> “What’s Distinctive About Class Actions When the Crown is a Party?” Osgoode Professional Development Eighth Annual Conference: Crown Liability, Toronto, February 16, 2012.

> “Rising from the Ashes: Different Playing Field, Different Rules for Distressed Deals: Canwest/Shaw Communications”, Advanced Mergers & Acquisitions Conference, Toronto, May 2011

> "Selected Privilege and Litigation Management Issues", Quorum Club, January 25, 2007.

> “Creditors' Rights and Remedies” 2nd Annual Maximizing Credit & Collections Summit, Federated Press, January 8, 2007.

> "Managing and Protecting Attorney-Client Privilege in the Age of Disclosure", 2006 Association of Corporate Counsel Conference, San Diego, October 2006.

Education

Osgoode Hall (LL.B. 1981), University of Western Ontario (Honours BA 1978).

Bar Admission

Ontario, 1983.

(8)

STIKEMAN ELLIOTT LLP PROFILE

Clifford L. Rand

5300 Commerce Court West, 199 Bay Street, Toronto, Canada M5L 1B9 Direct: (416) 869-5242 Fax: (416) 947-0866 crand@stikeman.com

Law Practice

Cliff Rand is a partner in the Toronto office of Stikeman Elliott and a member of the firm’s Tax Group. Mr. Rand’s practice is focused on tax litigation and on assisting taxpayers in managing a wide variety large or complex tax audits, including those involving the General Anti-Avoidance Rule, cross-border reorganizations and transfer pricing.

Mr. Rand has been recognized as a leading tax practitioner in the 2012 Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada, the Canadian Legal Lexpert Directory 2012, and the 2011 Lexpert Guide to the Leading US/Canada Cross-border Litigation

Lawyers in Canada.

Publications and Speaking Engagements

Mr. Rand has participated in and written papers for conferences on tax matters, including those held by the Canadian Tax Foundation, Law Society of Upper Canada, CCH, Tax Executives International, International Fiscal Association, The Canadian Institute, Federated Press, CGAA and The Adocates’ Society, including the following recent conferences:

> Co-speaker, “Current Tax Cases” Canada Revenue Agency & Professional Group Breakfast Seminar, Toronto (February 2012).

> Speaker, The BDO National Tax Specialists Conference, Toronto (January 2012).

> Speaker, “Current Cases”, Canadian Tax Foundation, Montreal (November 2011).

> Speaker, Canada Revenue Agency/Tax Professionals Breakfast Seminar, Toronto (November 2011).

> Speaker, “Law Clerk Seminar Program”, Tax Court of Canada, Ottawa (October 2011).

> Speaker, “Continuing Issues for General Practitioners Program”, Law Society of Upper Canada, Toronto (September 2011).

> Co-speaker, “Current Tax Cases” Canada Revenue Agency & Professional Group Breakfast Seminar, Toronto (June 2011).

> Co-speaker, “A Comparative Look at Canada’s Approach to Treaty Interpretation”, International Tax Seminar, International Fiscal Association, Toronto (May 2011).

> Speaker, "Audit Preparation: Counsel's Role", 12th Annual Managing Tax Audits & Investigations Conference, Federated Press, Toronto (May 2011).

(9)

STIKEMAN ELLIOTT LLP PROFILE

> Co-speaker, “Preparing for a tax audit and the role of counsel in tax audits”, 11th Annual Managing Tax Audits & Investigations Conference, Federated Press, Calgary (March 2011).

> Co-speaker, “Current Tax Cases” Canada Revenue Agency Breakfast Seminar, Toronto and Barrie, Ontario (February 2011).

> Co-speaker, Faculty of Law, University of Toronto, Panel Discussion on Copthorne Holdings (January 2011).

> Speaker, Tax Court of Canada – Law Clerk Seminar Program, Ottawa (January 2011).

> Co-speaker, “Current Tax Cases” Canada Revenue Agency Breakfast Seminar, Toronto (February, May and November, 2010).

> Co-speaker, “Current Tax Cases” Canada Revenue Agency Breakfast Seminar, North York, Ontario (November, 2010).

> Speaker, "Income Tax - the GAAR - Current Impact on Tax Planning", Annual Canadian Tax Executives International (TEI) Conference, Gatineau, Quebec (May 2010).

> Co-speaker, “Preparing for a tax audit and the role of counsel in tax audits”, 10th Managing Tax Audits & Investigations Course, Federated Press Conference Division, Toronto (May 2010).

Representative Work

The following are some of the notable tax cases that were litigated by Mr. Rand in the last dozen years:

> Collins & Aikman Products Co. v. The Queen et. al., 2010 FCA 251 (Federal Court of

Appeal), 2009 TCC 299 (Tax Court of Canada), in which the issue was whether the general anti-avoidance rule (GAAR) applied to a corporate reorganization of a multinational group and the patriation of corporate funds out of Canada.

> Telfer v. Canada (Canada Revenue Agency), 2009 FCA 23 (Federal Court of Appeal), an appeal relating to an application for judicial review of the Minister of National Revenue’s decision to deny the taxpayer relief under the Canada Revenue Agency’s taxpayer relief program.

> Tolhoek v. R., 2008 FCA 128 (Federal Court of Appeal), 2006 TCC 681 (Tax Court of Canada), a test case involving taxpayers who invested in a tax shelter partnership.

> Karia v. The Minister of National Revenue, 2005 FC 639 (Federal Court of Canada), an

application for judicial review of the Minister of National Revenue’s decision to deny the taxpayer relief under the Canada Revenue Agency’s Voluntary Disclosure Program.

> Nash v. The Queen, Quinn v. The Queen and Tolley v. The Queen, 2005 FCA 386

(Federal Court of Appeal), 2004 CarswellNat 3359, 2004 D.T.C. 3391 (Tax Court of Canada), test cases involving claims for income tax credits in respect of the donation of works of art.

> Lenester Sales Ltd. v. The Queen and Sushi Sales Limited v. the Queen, [2004] 4

C.T.C. 15, 2004 D.T.C. 6461 (Federal Court of Appeal), and [2003] 4 C.T.C. 2772, 2003 D.T.C. 997 (Tax Court of Canada), test cases involving the meaning of “control in fact” for the purpose of the small business deduction claimed by a large group of franchised retail stores.

(10)

STIKEMAN ELLIOTT LLP PROFILE

> McCoy v. The Queen, [2003] 4 C.T.C. 2959, 2003 D.T.C. 660 (Tax Court of Canada), a

test case involving taxpayers who invested in software tax shelter partnerships.

> Capital Vision et al. v. The Queen, [2002] 2 C.T.C. 42, 2003 D.T.C. 5054 (Federal Court

of Canada), an application for judicial review regarding the exercise of the Canada Revenue Agency’s power to obtain a taxpayer’s client list.

> Tom Cheek v. The Queen, [2002] 2 C.T.C. 2115, 2002 D.T.C. 1283 (Tax Court of

Canada), a case involving the application of the Canada/U.S. Income Tax Treaty.

> Stremler v. The Queen and Jones v. The Queen, [2000] 2 C.T.C. 2172, 2000 D.T.C.

1757 (Tax Court of Canada), test cases involving the deduction of tax losses by a group of real estate investors who purchased residential condominium units.

Education

Osgoode Hall Law School (LL.M. 1986), McGill University (LL.B. 1981, Honours BA 1977).

Background

Mr. Rand was born and raised in Montreal. He first began practising law in Calgary, Alberta in 1982 and, for a few years in the mid-1980s, was a law professor at the University of Windsor.

Bar Admissions

(11)

STIKEMAN ELLIOTT LLP MAY 31, 2012

RECENT DEVELOPMENTS IN

THE LAW OF PRIVILEGE

In-House Counsel and the

Challenge of Protecting Rights

PRESENTATION SLIDES

(12)

STIKEMAN ELLIOTT LLP

1

STIKEMAN ELLIOTT LLP www.stikeman.com

Recent Developments in

the Law of Privilege

SEMINAR MAY 31, 2012

STIKEMAN ELLIOTT LLP

Brief Overview of

Solicitor-Client Privilege

1

(13)

STIKEMAN ELLIOTT LLP

2

SLIDE 2 STIKEMAN ELLIOTT LLP

Criteria for Establishing the Privilege:

Communications between a solicitor and a client;

Involving the seeking or giving of legal advice; and

Which is intended to be kept confidential by the parties

The purpose of solicitor-client privilege is to permit

clients to be frank and candid with their lawyers

Solicitor-Client Privilege: General Principles

SLIDE 3 STIKEMAN ELLIOTT LLP

Solicitor-client privilege is not just a rule of evidence

governing admissibility

It is the substantive right to permanently protect

information or documents from disclosure to third parties

Supreme Court of Canada has said that the privilege must

be considered nearly absolute and that exceptions to it

will be rare - Lavallee, Rackel & Heintz v. Canada,

[2002] 3 S.C.R. 209

(14)

STIKEMAN ELLIOTT LLP

3

SLIDE 4 STIKEMAN ELLIOTT LLP

The privilege is the right of the client not the right of

the solicitor

It has long been recognized that legal advice provided by

in-house counsel in the performance of their duties is

afforded the same solicitor-client privilege as legal

advice provided by external counsel

Ontario Rules of Professional Conduct do not distinguish

between the ethical duties of confidentiality of in-house

and external counsel

SLIDE 5 STIKEMAN ELLIOTT LLP

Privilege is a substantive right and a rule of evidence

to protect information or documents from disclosure

to third parties, including in litigation and to

regulatory bodies

Confidentiality is an ethical obligation for lawyers,

and is often a contractual obligation, but does not

protect information or documents from disclosure in

litigation or to regulatory bodies

As a rule of evidence, what is privileged varies by

jurisdiction. As an ethical rule, what is confidential

generally does not

(15)

STIKEMAN ELLIOTT LLP

4

STIKEMAN ELLIOTT LLP

Brief Overview of Privilege &

Advice by In-house Counsel

2

SLIDE 7 STIKEMAN ELLIOTT LLP

The privilege belongs to the client, and can be asserted

or waived only by the client or through his or her

informed consent

Where a lawyer is employed in-house, the lawyer owes

allegiance to the corporation and not to the officers,

employees or agents of the corporation

This overriding duty of loyalty raises significant potential

conflict of interest issues

(16)

STIKEMAN ELLIOTT LLP

5

SLIDE 8 STIKEMAN ELLIOTT LLP

It is not uncommon for in-house counsel of a parent

corporation to have responsibility for advising

wholly-owned subsidiaries

The courts have generally extended the privilege

protections to such subsidiaries, considering them to

be the “client”

SLIDE 9 STIKEMAN ELLIOTT LLP

In-house counsel frequently wear multiple hats when advising

a corporation, or have multiple corporate responsibilities

Solicitor-client privilege covers only legal advice, and not

advice on purely business matters

A lawyer’s obligation to distinguish between legal and business

advice has been elevated to an ethical duty in Ontario

As the work done by in-house counsel involves both legal and

non-legal responsibilities, each situation must be assessed on

a case-by-case basis to determine whether privilege arises

The application of privilege depends on the circumstances in

which advice is sought and given, the subject matter of the

advice, and the nature of the relationship

(17)

STIKEMAN ELLIOTT LLP

6

SLIDE 10 STIKEMAN ELLIOTT LLP

“In addition to opinions on legal questions, the lawyer

may be asked for or may be expected to give advice on

non-legal matters such as the business, policy, or social

implications involved in the question or the course the

client should choose. In many instances the lawyer's

experience will be such that the lawyer's views on

non-legal matters will be of real benefit to the client.

The lawyer who expresses views on such matters should,

where and to the extent necessary, point out any lack of

experience or other qualification in the particular field and

should clearly distinguish legal advice from other advice.”

Commentary to Rule 2.01

STIKEMAN ELLIOTT LLP

Brief Overview of

Litigation Privilege

3

(18)

STIKEMAN ELLIOTT LLP

7

SLIDE 12 STIKEMAN ELLIOTT LLP

Criteria for Establishing Privilege:

Document prepared in contemplation of litigation

Litigation must have been the “dominant purpose”

(General Accident v. Chrusz, 1999 OCA)

 C.A. in Chrusz rejected alternative “substantial purpose” test  Key point is the purpose for which document created

Litigation Privilege: General Principles

SLIDE 13 STIKEMAN ELLIOTT LLP

Key differences:

LP is less absolute – more judicial discretion

LP can apply to documents without regard to

involvement of counsel

LP expires at the conclusion of litigation

(Blank v. Canada, 2006 SCC)

 Once litigation is over, that’s it – no more privilege  Exception where there are “closely related proceedings”,

but this is narrowly defined

(19)

STIKEMAN ELLIOTT LLP

8

SLIDE 14 STIKEMAN ELLIOTT LLP

Recent case received lots of press

Criminal case against Dunn and other former Nortel executives

Audit committee interviewed Dunn in relation to a

restatement of financial statements

Dunn had lawyers in attendance who took notes

Crown sought production of those notes over which counsel

claimed litigation privilege

Court found notes protected from production by litigation

privilege but required counsel to read notes to refresh

memory for their testimony

Recent Development - HMQ v. Dunn - 2012

STIKEMAN ELLIOTT LLP

Recent Developments in

Tax Audits and Appeals

re. Privilege

(20)

STIKEMAN ELLIOTT LLP

9

SLIDE 16 STIKEMAN ELLIOTT LLP

1.

The CRA is more frequently making applications to the

Federal Court to order taxpayers to comply with CRA audit

queries when the CRA believes the taxpayers are not being

sufficiently responsive (instead of first issuing formal

requirements to such taxpayers), which will lead to more

CRA challenges to taxpayer claims of privilege

2.

A recent Tax Court decision has held that a taxpayer is not

required to provide the CRA with all details of legal advice

in order to support a deduction for the cost of such advice

for tax purposes

3.

In some cases, the Tax Court will expect a taxpayer to waive

solicitor-client privilege, and even call its legal advisers to

testify, if the taxpayer wishes to meet its evidentiary

burden of proof

Three recent developments

SLIDE 17 STIKEMAN ELLIOTT LLP

In the past, if the CRA believed a taxpayer was not being

sufficiently responsive to its audit queries, it would issue

a formal requirement (under section 231.2 of the ITA)

and only apply to the Federal Court for a compliance

order (under 231.7 of the ITA) if the taxpayer failed to

comply with the requirement

The CRA is now more frequently applying to the Federal

Court for compliance orders without first issuing a formal

requirement

One effect of this change in CRA policy is that it allows the

CRA to be more aggressive in challenging taxpayer claims of

privilege (because the CRA will have ready access to a

judge to determine whether particular documents are

privileged)

(21)

STIKEMAN ELLIOTT LLP

10

SLIDE 18 STIKEMAN ELLIOTT LLP

A recent Tax Court decision has held that, if a taxpayer

wishes to deduct the cost of legal advice for tax

purposes, the taxpayer need not provide the CRA with all

details of such advice. (Richard A. Kanan Corp. v. R.,

2011 TCC 211)

Section 232 of the ITA provides that “an accounting record

of a lawyer” is deemed not to be privileged. This was often

interpreted by the CRA to mean that lawyers’ timesheets

were not privileged. A tax lawyer’s timesheets could

provide the CRA with insight into tax sensitive transactions

Lawyers’ Bills

SLIDE 19 STIKEMAN ELLIOTT LLP

The Kanan case stands for the proposition that the

taxpayer need only disclose the nature of the legal work

performed in very general terms (e.g., sufficient

disclosure for the CRA to determine whether the legal

work relates to the acquisition of a capital asset and must

be capitalized rather than deducted on current account)

The Tax Court in Kanan held that “ … a taxpayer who

presents a claim for deductions in a return must also

accept that at least some disclosure will be necessary to

properly dispose of that claim.”

(22)

STIKEMAN ELLIOTT LLP

11

SLIDE 20 STIKEMAN ELLIOTT LLP

“ … However, to provide the proof that is required, a

taxpayer should not be forced to reveal the specifics of

its legal advice, or to turn over the lawyer’s entire file.

In addition to limited disclosure, the lawyer or the Court

may edit documents to remove non-essential material,

and the Court may impose conditions to ensure the

confidentiality of the information. Further, taxpayers

must be allowed to provide the proof that is required

without the risk that they will be found to have waived

the privilege entirely …”

Lawyers’ Bills

SLIDE 21 STIKEMAN ELLIOTT LLP

In some cases, the Tax Court will expect a taxpayer to

waive solicitor-client privilege, and even call its legal

advisers to testify, if the taxpayer wishes to meet its

evidentiary burden of proof, particularly in a case in

which the taxpayer’s intention is an important

consideration (see for example, Garron Family Trust

(Trustee of) v. R., 2009 TCC 450)

In Garron, the Tax Court judge indicated in her reasons

that the tax lawyers involved in planning the transaction

in issue would have been important witnesses

(23)

STIKEMAN ELLIOTT LLP

12

SLIDE 22 STIKEMAN ELLIOTT LLP

The Tax Court judge indicated that she was

troubled by the fact that the tax lawyers (among

other potential witnesses) were not called to

testify in the case. “It leaves me to infer that

none of them would have provided evidence that

was favourable to the appellants.”

Requirement to Waive Privilege

STIKEMAN ELLIOTT LLP

Deal Team Privilege

(24)

STIKEMAN ELLIOTT LLP

13

SLIDE 24 STIKEMAN ELLIOTT LLP

Relatively new concept of privilege that was recently

affirmed by the Ontario Superior Court of Justice in Barrick

Gold Corporation v. Goldcorp. Inc., 2011 ONSC 1325

Refers to the extension (or a possible exception to the

waiver) of solicitor-client privilege to communications

between and among members of a team of experts and

advisors assembled by the client for the purpose of

completing a corporate deal or transaction

An exceptional concept in that it protects from disclosure

communications with third parties, which are

presumptively non-privileged (whether giving or receiving

legal advice or distributing same)

What is “Deal Team” Privilege?

SLIDE 25 STIKEMAN ELLIOTT LLP

Recognizes the modern reality of the structure and

processes necessary to complete complex corporate

transactions:

“The nature of the interrelationship and dealings between

[the client, the consultant and the lawyer] are a practical

reality in major commercial projects where teams of

individuals with focused expertise are assembled. All

functions are not performed under a single roof, and the

[lawyer] through retained by a single client, may be

required to give advice to different members of the team

who work for the client.”

 Barrick Gold, endorsing comments of the BSSC in Camp Development Corp. v. South Coast Greater Vancouver Transportation Authority, 2011 BCSC 88

(25)

STIKEMAN ELLIOTT LLP

14

SLIDE 26 STIKEMAN ELLIOTT LLP

“…each and everyone of the individual advisors…was

appropriately regarded as part of the “team” for the

purposes of requesting, obtaining and/or receiving

legal advice”

“the documents make clear the particular input of a

relatively small number of non-lawyer individuals

outside the companies, whose input was necessary

and appropriate to the consideration, structuring,

planning and implementation of very complex

transactions in a very short time frame.”

“… the individuals considered themselves bound to

confidentiality…”

Key Points from Barrick Gold

SLIDE 27 STIKEMAN ELLIOTT LLP

“…one can see and understand the need for and receipt

of specific advice and knowledge necessary for the

overall legal considerations of the transaction.”

(26)

STIKEMAN ELLIOTT LLP

15

SLIDE 28 STIKEMAN ELLIOTT LLP

May apply to business people, employees, ex-employees,

accountants, financial advisors, investment bankers, and

other consultants and advisors necessary to the Deal Team

May cover emails, due diligence materials, notes and

comments on draft agreements, financial and strategic

analysis and advice, management presentations etc...

Individuals and documents/communications that may be

covered is not a closed group or list

Fact specific determination

Will NOT cover purely business advice

Scope of Deal Team Privilege

SLIDE 29 STIKEMAN ELLIOTT LLP

Include provisions in your retainer agreements authorizing

external advisors to request and receive legal advice on your

behalf

Clearly identify when legal advice is being sought or given

Mark communications “privileged & confidential”

Ensure the deal team is aware of importance of maintaining

confidentiality (include provision in retainer agreement,

separate non-disclosure agreement)

Be cautious of “reply all” emails, automatically copying the

whole group, and the uncensored forwarding of email chains

containing legal advice – distribution should be on a need to

know basis only

(27)

STIKEMAN ELLIOTT LLP

16

STIKEMAN ELLIOTT LLP

Privilege Issues relating to

Lawyer as Whistleblower

6

SLIDE 31 STIKEMAN ELLIOTT LLP

Internal counsel owe a duty to maintain all privileges on

behalf of the client

Lawyers also owe a wider duty of confidentiality

Rules of Professional Conduct require a lawyer to take

steps in the face of dishonest conduct which may put

in-house lawyers in an untenable professional position

(28)

STIKEMAN ELLIOTT LLP

17

SLIDE 32 STIKEMAN ELLIOTT LLP

“Once a lawyer acting for an organization learns that the

organization has acted, is acting, or intends to act in a

wrongful manner, then the lawyer may advise the chief

executive officer and shall advise the chief legal officer of the

misconduct. If the wrongful conduct is not abandoned or

stopped, then the lawyer reports the matter “up the ladder”

of responsibility within the organization until the matter is

dealt with appropriately. If the organization, despite the

lawyer’s advice, continues with the wrongful conduct, then

the lawyer shall withdraw from acting in the particular matter

in accordance with rule 2.09. In some but not all cases,

withdrawal would mean resigning from his or her position or

relationship with the organization and not simply withdrawing

from acting in the particular matter.”

Commentary to Rule 2.02

STIKEMAN ELLIOTT LLP David R. Byers dbyers@stikeman.com Clifford L. Rand crand@stikeman.com

(29)

STIKEMAN ELLIOTT LLP MAY 31, 2012

RECENT DEVELOPMENTS IN

THE LAW OF PRIVILEGE

In-House Counsel and the

Challenge of Protecting Rights

FIRM PROFILE

(30)

Firm Profile

Stikeman Elliott is one of Canada's leading business law firms, with offices in Toronto, Montreal, Ottawa, Calgary and Vancouver as well as in London, New York and Sydney. The firm is recognized as a Canadian leader in each of its core practice areas – corporate finance, M&A, corporate-commercial law, banking, structured finance, real estate, tax, insolvency, competition/antitrust, employment and business litigation – and is regularly retained by domestic and international companies in a wide range of industries including communications, financial services, insurance, technology, transportation, manufacturing, mining, energy, infrastructure and retail. It was named as the 2011 Canadian Law Firm of

the Year by the International Financial Law Review.

The firm’s Canadian offices are leaders in their respective jurisdictions and it has prominent cross-border expertise, as the first Canadian firm to open offices in London and New York, and extensive experience in the U.S., Europe, China, South and Southeast Asia as well as in Latin America, the Caribbean and Africa. Our 500 lawyers include many of

Canada’s most prominent business practitioners and leading litigators, and our depth across practice areas enables clients to benefit from efficient, expert teams of lawyers at all levels. The firm has also invested heavily in leading-edge knowledge management and project management systems in order to assure our clients of advice of the highest quality.

Stikeman Elliott has been recognized by national and international legal directories as a Canadian leader in business law.

> #1 for Lexpert/American Lawyer ranked lawyers in M&A, Corporate Finance and Corporate-Commercial

> #1 for Lexpert ranked lawyers in M&A, Corporate Finance and Corporate-Commercial

> #1 in the Best Lawyers rankings for M&A, Securities, Corporate Law and Arbitration

> Ranked Top-Tier in Corporate Law, M&A and Corporate Finance in Chambers Global’s

The World’s Leading Lawyers and the International Financial Law Review IFLR 1000

The firm’s National Litigation Group, whose specializations include class actions, securities litigation, antitrust and restructurings, has been ranked among the top three business litigation practices in Canada by Lexpert. The firm is also well known for its extensive regulatory and government relations expertise; the latter anchored by its office in Ottawa.

“They go

above and

beyond

the call of duty to

come up with

innovative

solutions.

CLIENT INTERVIEW – IFLR1000

(31)

STIKEMAN ELLIOTT LLP OUR OFFICES

Our Offices

Stikeman Elliott’s Canadian offices are located in the major business and financial centres of Montréal, Toronto, Ottawa, Calgary, and Vancouver. Outside Canada, the firm’s network includes offices or representation in the United Kingdom, the United States and the Asia-Pacific region. Our unsurpassed international experience ensures that we can serve our clients wherever their business takes them.

Toronto

The Toronto office of Stikeman Elliott is a broadly based corporate-commercial law practice with a strong transactional focus. The firm’s Toronto lawyers include many of Canada’s foremost practitioners in the areas of M&A, securities, banking, structured finance, insolvency, tax, real estate, competition, employment, pensions, technology, outsourcing, mining and electricity law. The Toronto business litigation group is highly regarded for its record in commercial litigation, most notably securities litigation, class action defence and complex insolvencies and restructurings. The office is renowned for its expertise in cross-border transactional and litigation work and counts many major global corporations and financial institutions among its clients. The Toronto office has been recognized by local media as a top regional employer and one of the city’s most environmentally-sustainable businesses.

Montréal

The firm’s Montréal office is one of the most successful and respected in the city. Its practice is focused on M&A, securities, banking, cross-border financial restructuring, international tax and commodity transactions, real estate, environmental law, intellectual property, information technology, transportation, insurance and employment law. The Montréal litigation group is widely recognized as one of the leading business law litigation teams in Quebec. Stikeman Elliott’s expertise in civil law and commercial transactions is particularly significant where an organization has operations in Quebec or in other jurisdictions with codified civil law-based legal systems, such as Central and Eastern Europe and South America. Much of the work carried out in the Montréal office has a strong international focus.

(32)

STIKEMAN ELLIOTT LLP OUR OFFICES

Calgary

Our Calgary office is home to some of Alberta’s leading lawyers. The Calgary office opened in 1992 and maintains a business law practice focused on M&A, securities, real estate, joint ventures, project financings, structured financings, tax, employment and banking. The office also has a significant international dimension, advising on foreign investment in the Canadian energy sector and cross-border trade in energy resources. In addition, the office maintains a commercial litigation practice and is renowned for its regulatory practice involving oil and gas and electricity related matters. The Calgary office has won four awards for its active role in the community.

Vancouver

Since 1988, our Vancouver practice includes a number of British Columbia’s leading lawyers in the areas of M&A, securities, banking, litigation and real estate. Our corporate lawyers lead local matters and draw on expertise of other Stikeman Elliott offices in national and international matters. We have one of British Columbia's most prominent real estate development and acquisition practices, while our Litigation Group has acted for all levels of government and offers a broad range of commercial dispute resolution and advocacy services, including significant class action expertise. A very experienced group of lawyers also practice in the areas of public-private partnerships, infrastructure development and project finance. The Vancouver office has a strong cross-border focus, acting as the firm’s Canadian gateway to the Asia-Pacific region.

Ottawa

The Ottawa office of Stikeman Elliott focuses on administrative law and regulated industries, with particular emphasis on competition law, intellectual property law, international trade, government procurement and public policy. Industry sectors in which the office has expertise include such federally-regulated commercial sectors as telecommunications, broadcasting, transportation, and energy, as well as those (such as packaging and labelling) that are subject to food and drug administration.

London

Drawing on over 40 years of experience in the city, Stikeman Elliott's London office has long been recognized for its leadership in international corporate transactions, including leveraged buy-outs, take-over bids and share and asset purchases. Our London corporate finance team is a leading advisor to Canadian companies with respect to Toronto Stock Exchange and AIM listings and has been recognized for many years as one of the most prominent international advisors in the Eurobond markets. We have also been at the forefront of developing the legal framework for the issuance of Maple Bonds in Canada. Our lawyers have broad industry expertise, as well as significant experience in Africa, in the mining sector. The office also serves as the gateway for our India, Middle East and Sovereign Wealth Fund practices. As well, our private client practice ranks amongst the world’s leading practices in the area.

New York

The New York office of Stikeman Elliott has extensive experience in Canada-U.S. cross-border corporate transactions, with a particular focus on M&A, corporate finance, banking and structured finance. The firm’s New York lawyers provide Canadian legal advice on cross-border acquisitions, investments, banking, securities and regulatory matters to U.S. corporations, investment dealers, advisors, banks and funds.

(33)

STIKEMAN ELLIOTT LLP OUR OFFICES

Sydney

Stikeman Elliott’s Sydney office, the hub of our Asia-Pacific practice, is involved in multi-jurisdictional securities and M&A law with a sectoral emphasis on mining, cross border M&A, infrastructure development and project finance.

Asia

Stikeman Elliott regularly acts in transactions involving clients across Asia, including, in particular, India, China, Hong Kong, Thailand and the Middle East. Reflecting the position of Canada as a target for a rapidly expanding Asian region and as a significant source of capital, the firm provides advice on a large number of significant transactions from Asia into Canada, as well as advising on Canadian investment into Asia. The firm has a particularly high profile in resource-sector transactions and is involved in the vast majority of IPOs originating in Asia that involve placements into Canada.

(34)

STIKEMAN ELLIOTT LLP LITIGATION

Litigation Group

A Canadian Leader in Business Law Litigation

The National Litigation Group at Stikeman Elliott has earned a reputation as a market leader in Canada’s largest business centres. Members of the group regularly act on a wide range of litigation relating to commercial contracts, class actions, securities, tax, competition/antitrust, product liability, intellectual property and allegations of unfair competition, professional negligence, directors’ and officers’ liability – including

breach of fiduciary duty, defamation, insurance, energy, real estate, insolvency, transportation (aviation, marine and rail), fraud, construction, employment, human rights, environmental and regulatory and constitutional matters.

Recognition for Our Work

Stikeman Elliott’s National Litigation Group is rated among Canada’s top-tier business litigation practices by domestic and international legal directories:

> The firm acted on 4 of the Top 10 Business Cases in

Canada for 2009, as selected by Lexpert, more than any other firm.

>

Ten litigators (representing its Toronto, Montréal and Calgary offices) were cited in the

prestigious Lexpert/American Lawyer Guide to the 500 Leading Lawyers in Canada in the areas of Arbitration, Class Actions, Competition, Corporate Commercial, Corporate Tax, Directors’ and Officers’ Liability, Energy (Electricity Regulatory), Insolvency & Financial Restructuring and Securities Litigation.

>

Ten lawyers are cited in Lexpert's Guide to the Leading U.S./Canada Cross-border

Litigation Lawyers in Canada.

>

The Canadian Legal Lexpert Directory cites Stikeman Elliott litigators among those

recommended in the areas of Class Action, Corporate Commercial, Corporate Tax, Directors’ and Officers’ Liability, Competition and Securities. The Directory ranks five of the firm’s Montréal litigators as leading lawyers in Corporate Commercial and two in the area of Directors’ and Officers’ Liability.

>

Three of the Group's litigators appear in Legal Media Group's The World's Leading

Lawyers Expert Guide in the Litigation sector.

>

Best Lawyers in Canada has ranked Stikeman Elliott with the most lawyers listed in

International Arbitration in Canada. They have also recognized 10 Stikeman Elliott practitioners in Corporate and Commercial Litigation, four in Competition Litigation and Insolvency, three in Class Action Litigation and two in each of Alternative Dispute Resolution and Directors’ and Officers’ Liability.

>

Internationally, seven of the Group’s litigators are listed and ranked in the Chambers

Global Guide to the World’s Leading Lawyers for Business in Dispute Resolution,

Restructuring/Insolvency, Intellectual Property and Competition Litigation.

“Diligent lawyers who

spend their time

understanding the

situation and issues of

the client

thoroughly.”

Chambers Global 2011

(35)

STIKEMAN ELLIOTT LLP LITIGATION

>

Eight of the group's litigators are listed in the International Who's Who of Business

Lawyers in the areas of Commercial Litigation, Arbitration, Insolvency and Insurance.

>

Six litigators are recognized in the PLC Which Lawyer? in Dispute Resolution.

Experience at Every Level of Canada’s Courts and Tribunals

Members of the Litigation Group are regularly retained to act in a wide range of proceedings, from injunction applications to complex trials and appeals at all levels of provincial and federal courts. Members of the group appear regularly before

securities regulators, energy regulators, municipal boards, the Competition Tribunal, the Trade-mark Opposition Board, the Patent Appeal Board, the National Transportation Agency, the CRTC (Canada’s communications regulator), liquor licensing boards, human rights commissions, arbitration panels, commissions of inquiry and the governing bodies of various institutions and professional disciplines.

Regulatory Expertise

Stikeman Elliott is well known for its expertise in providing regulatory advice in a range of industries. The firm acts regularly for clients in regulatory proceedings arising from both competition and securities investigations, as well as in a broad range of regulated industries, such as aviation,

electricity, oil and gas, insurance, telecommunications and transportation. We have extensive advocacy experience before all levels of trial and appellate courts in every province and territory in Canada, the Federal Court of Canada, and the Supreme Court of Canada, as well as various administrative tribunals, including the Competition Tribunal and the Ontario Securities Commission.

Arbitration

Arbitration has become the principal forum for the resolution of international commercial and investment disputes. For such disputes, clients require seasoned counsel with a deep understanding of the arbitral process. Our practice has been ranked first in Canada for the number of leaders in this field by Best Lawyers and includes a number of individually ranked lawyers with experience at all levels of international ad hoc arbitrations, under the UNCITRAL rules, domestic ad hoc arbitrations throughout Canada and arbitrations administered under the rules of various institutions. Many of our lawyers are trained in both common law and civil law traditions and many have experience both as counsel and as arbitrators in international disputes, as well as extensive high-level government experience. As a result, we are uniquely positioned to understand the important legal issues and the strategic business factors at play to achieve a successful cost-effective resolution for our clients.

Trusted by Business

Members of the Litigation Group have acted as counsel to significant public and private corporations in a wide variety of sectors of the economy, major Canadian and foreign financial institutions, all levels of government (including provincial regulators), and a variety of charitable institutions. Members of the group have represented trustees, receivers, monitors, creditors or debtors in most of the major insolvency and restructuring matters that have arisen in recent years.

“A unique characteristic of

the firm is the ability to be

abundantly prepared for

all contingencies,

while

still taking a

pragmatic

approach to the problems

and issues in question.”

Chambers Global 2011

(36)

STIKEMAN ELLIOTT LLP LITIGATION

Canada’s Cross-Border Specialists

The Litigation Group has extensive experience with legal issues that transcend Canada’s borders. Whether it is an international insolvency or the defence of a class action commenced as a follow-on to class actions outside Canada, Stikeman Elliott litigators have earned a reputation as cross-border specialists who work effectively with lawyers and experts from other jurisdictions. In December 2010, nine of our group members were listed as Canadian leaders in Lexpert’s Guide to the Leading U.S./Canada Cross-Border Litigation

Lawyers in Canada.

Our Clients

Some of our litigation clients include:

Helping Clients Avoid Unnecessary Litigation

Recognizing that most clients wish to avoid litigation, the Litigation Group regularly advises on the appropriateness of Alternative Dispute Resolution (international, domestic, ad hoc or institutional) and on the different forms of ADR that should be considered. Members of the group can also advise clients on how to arrange their affairs to avoid litigation, before problems arise.

Involved in the Legal Community

The Litigation Group is a committed participant in Canadian legal education. Members of the group teach advocacy in the law schools of Western Ontario, Queen’s, McGill and Montréal Universities as well as École du Barreau du Québec. They have also served on several Canadian Bar Association’s provincial continuing legal education committees and as

> Air Canada

> Bank of Nova Scotia

> Briggs & Stratton Corporation

> Bristol-Myers Squibb Canada Inc.

> Canadian Imperial Bank of Commerce

> Canadian National Railway

> Canadian Real Estate Association

> eBay Canada Inc.

> EDS Canada Ltd. > Government of Belize > ING Canada > Insurance Bureau of Canada > Laurentian Bank of Canada > LG Display > Liberty Mutual > Lloyd’s of London

> Maritime Life Assurance Company

> Mazda Canada Inc.

> Nortel Networks Ltd.

> NVIDIA Corporation

> Royal Bank of Canada

> Siemens AG > Sony Corporation > TJX/Winners > Toronto-Dominion Bank > Universal Music > Weyerhaeuser Company Ltd. > YBM Magnex

LEXPERT 2010 LEADING U.S./CANADA CROSS-BORDER LITIGATION LAWYERS IN CANADA

CORPORATE-COMMERCIAL, CLASS ACTION & SECURITIES

INSOLVENCY & CORPORATE RESTRUCTURING

Louis P. Bélanger (Montréal) David Byers (Toronto)

Peter Howard (Toronto) Sean Dunphy (Toronto)

Katherine Kay (Toronto)

COMPETITION/ANTITRUST INTERNATIONAL ARBITRATION Paul Collins (Toronto)

Benjamin Greenberg (Montréal) Katherine Kay (Toronto)

TAX INTERNATIONAL TRADE

(37)

STIKEMAN ELLIOTT LLP LITIGATION

Directors of The Advocates’ Society. Many members have published articles on a variety of litigation and advocacy topics and have presented papers and spoken at national and international conferences.

Unsurpassed Service: On Budget, On Time

Stikeman Elliott’s goal is to provide the best client service at a fair price, while observing the highest professional standards. The firm puts together teams that can work ably and efficiently, while maintaining continuity of advice and keeping to the client’s budget and time requirements. Litigation clients benefit from the intellectual and technical resources of one of Canada’s largest business law practices, including specialized litigation law clerks who can quickly organize documentation relevant to a client’s file using Stikeman Elliott’s customized document management software.

(38)

STIKEMAN ELLIOTT LLP TAX

Tax Litigation Group

Stikeman Elliott is a leading law firm in the area of taxation and tax planning, advocacy and litigation. From its inception in 1952, the firm has specialized in taxation, including litigation and tax controversy matters for Canadian and international business enterprises, in the context of both standalone tax mandates and integrated corporate-commercial and tax mandates.

The Tax Group has extensive experience in tax litigation before all levels of court from the Tax Court of Canada to the Supreme Court of Canada. Many of the cases that have defined important tax principles or have resulted in changes to the law have been argued by members of our Tax Group. Beyond formal proceedings, we advise clients in negotiations with the Canada Revenue Agency and provincial tax authorities.

Our experience in tax litigation also assists clients in assessing the tax risks associated with particular transactions, including the potential application of the general anti-avoidance rule. Furthermore, we engage in tax-related matters regarding advance tax rulings, reviewing the tax implications of commercial litigation and proposing effective tax treatment of litigation damage awards. We also advise with respect to commodity tax litigation, including excise tax treatment, income and revenue declarations and the determination of royalty payments. The Tax Group also represents taxpayers who need assistance in managing large or complex tax audits, including transfer pricing audits, and in responding to or challenging formal requirements by tax authorities to provide information and documents.

Our Tax Group has been recognized as a Canadian leader in the 2012 Chambers Global

Guide to the Leading Lawyers for Business, the 2012 Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada and the 2012 Canadian Legal Lexpert Directory.

Our senior tax litigator, Cliff Rand, has been noted in the 2011 Guide to the Leading

US/Canada Cross-Border Litigation Lawyers in Canada in the area of Corporate Tax

Litigation, 2012 Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada in the area of Corporate Tax Litigation, and in The Canadian Legal Lexpert Directory 2012 as a practitioner "most frequently recommended" in the Corporate Tax Litigation sector.

(39)

STIKEMAN ELLIOTT LLP | www.stikeman.com

STIKEMAN ELLIOTT LLP

carbonNEUTRAL

Stikeman Elliott is the first national Canadian law firm to be certified Carbon Neutral. More information is available at www.stikeman.com The contents of this document has been printed on paper sourced from managed forests and certified accordingly by international organizations.

SINCE 2008

This publication provides general commentary only and is not intended as legal advice. © Stikeman Elliott LLP

TORONTO

5300 Commerce Court West, 199 Bay Street, Toronto, ON, Canada M5L 1B9 Tel: (416) 869-5500 Fax: (416) 947-0866

MONTRÉAL

1155 René-Lévesque Blvd. West, 40th Floor, Montréal, QC, Canada H3B 3V2 Tel: (514) 397-3000 Fax: (514) 397-3222

OTTAWA

Suite 1600, 50 O’Connor Street, Ottawa, ON, Canada K1P 6L2 Tel: (613) 234-4555 Fax: (613) 230-8877

CALGARY

4300 Bankers Hall West, 888 - 3rd Street S.W., Calgary, AB, Canada T2P 5C5 Tel: (403) 266-9000 Fax: (403) 266-9034

VANCOUVER

Suite 1700, Park Place, 666 Burrard Street, Vancouver, BC, Canada V6C 2X8 Tel: (604) 631-1300 Fax: (604) 681-1825

NEW YORK

445 Park Avenue, 7th Floor, New York, NY 10022 Tel: (212) 371-8855 Fax: (212) 371-7087

LONDON

Dauntsey House, 4B Frederick’s Place, London EC2R 8AB England Tel: 44 20 7367 0150 Fax: 44 20 7367 0160

SYDNEY

Level 12, The Chifley Tower, 2 Chifley Square, Sydney N.S.W. 2000 Australia Tel: (61-2) 9232 7199 Fax: (61-2) 9232 6908

References

Related documents

SGS provides a complete range of food safety management services that assist retailers to deliver food products that constantly meet their high quality standards as well

The case study design was a powerful means to identify real-life leadership solutions in a rigorous, creative, and wide- ranging variety of ways, and to assist midlevel managers in

Collaborative Assessment and Management of Suicidality training: The effect on the knowledge, skills, and attitudes of mental health professionals and trainees. Dissertation

In addition to standard activities performed on @KU-UZEM, the students have used two different intelligent learning environments: CTutor, a problem-solving environment; and

a focus on a particular part of the software quality process (e.g., cloud, load/stress, functional automation), but we often find that many of these companies and products

The authors further argued that an asset with positive (negative) coskewness reduces (increases) the risk of the portfolio to large absolute market returns, and should command a