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NATL61_024-032 03/08/2007 09:38 AM Page 26 the introduction of these amendments to spur class-action law- suits, that has yet to happen. “Hopefully, the courts will look at this with the eye that busi- ness has to go on and that businesses should only be held respon- sible if their actions are done with malice or intent,”says Turcotte. In the meantime, companies and their in-house lawyers will have to “find ways to adapt to it. Companies have to print disclosure that shareholders want to read and understand, but we also have to protect the company.” The best way to do that,especially when it comes to disclosure documents, is to consistently document matters at the organiza- tion and to record the process of putting together the disclosure documents, says Woodside.“In-house lawyers are expected to be the ones responsible for setting out a process of building files with documentation and making sure that it’s followed,” she says, not- ing that even though the actual process of preparing disclosure documents hasn’t changed all that much, formally documenting it is a new element. Setting the tone The enactment of these amendments, and the subsequent role general counsel now have to play to ensure their companies are compliant, demonstrates just how important corporate counsel have become to the overall compliance process. It also highlights their role in ensuring that everyone at an organization—beyond Kristine Robidoux the senior management team—know what’s required of them to President, ComplianceWorks, Calgary ensure the company stays on the right side of the law. “Compliance is now woven into the fabric of what we do,” says Jay Safer, general counsel and secretary at IBM Canada in now have to ensure to a greater degree that their corporation’s dis- Markham, Ontario. By way of example, he points out that an closure documents are entirely accurate and issued in a timely extensive process to educate staff about compliance issues has fashion in order to protect both the company and its management. been implemented for all the staff at the organization. It is con- “The new liabilities and sanctions are significant,” says Solway sidered so important that attendance at training seminars, and of the secondary market liability regime. “It raised the impor- application of the principles learned, are included in the annual tance of risk management. Now we’re dealing with disclosure in performance review. public markets, and businesspeople understand how they could At Fidelity Investments Canada Ltd., the approach to enhanc- be exposing themselves, not just monetarily but in terms of their ing compliance and risk management has been to spread the reputations, as well.” responsibilities more broadly. “We have given legal, regulatory, “There’s no question that there’s a heightened awareness at all and compliance issues greater prominence,” says Martin Guest, levels of a corporation in regard to [potential] disclosure litiga- senior vice-president and corporate counsel in Toronto. tion,” adds Woodside.“And by its nature, this impacts the ques- “We have redoubled our focus on the development and tions that general counsel are asked and the information that enforcement of internal policies and established a compliance they’re supposed to provide.” committee that is comprised of all of our most senior business Meanwhile, this new paradigm creates a level of uncertainty leaders. [As well], we’ve significantly enhanced our compliance that all corporate counsel now have to deal with, says Martine resources to allow for more training, better oversight, and Turcotte, chief legal officer of BCE Inc. in Montreal. improved monitoring.” “It’ll be interesting to see how the courts interpret the legisla- In future,in-house lawyers will have to continue taking the lead tion, because it has a lot of gaps,” she explains, adding that it’s still role to ensure their organizations keep on being proactive, because up in the air as to how far the courts will go to make an exam- there will be more and more regulation to manoeuvre and man- JAZHART STUDIOS ple of a company. Although many legal observers had expected age, says Woodside.“There are going to be continuous regulations 26 CCCA Canadian Corporate Counsel Association MARCH 2007