Law Times

Law Times • augusT 9, 2010 FOCUS PAGE 11 Changes abound for in-house counsel Amendments to federal and provincial legislation affect company policies BY DARYL-LYNN CARLSON For Law Times I n-house lawyers are facing a number of legislative changes both federally and provin- cially that will affect the way their companies conduct business. The changes were addressed at the annual general meeting of the Canadian Corporate Coun- sel Association's Toronto chapter. "There are a number of chang- es that counsel must be aware of that require them to update their in-house policies and procedures," says Brian Wylynko, president of the CCCA's Toronto chapter, who provided presentations at the meeting on two significant changes: new Ontario workplace violence rules and federal Com- petition Act changes. In terms of workplace violence, many changes under Bill 168 to the Occupational Health and Safe- ty Act took effect on June 15. "The whole area of workplace violence and safety laws are expanding into workplaces where it wasn't previ- ously prominent," says Wylynko. "In the past, occupational health and safety laws focused on the physical risk of the job, but now it's been broadened to include other elements of safety that can come up in any workplace, such as white-collar professions. Bill 168 requires companies to be attentive to workplace violence and the po- tential for violence and undertake comprehensive due diligence in order to comply." Wylynko says the new law is relatively challenging for in- house counsel in terms of what they must do to achieve com- pliance. It forces companies to develop policies and programs to facilitate reporting of work- place violence; investigations of alleged incidents; emergency re- sponse procedures; dealing with possible threats; and developing means to communicate corpo- rate policies related to the new law to all levels of management. New federal changes to the Competition Act also require in-house counsel to revisit their legal approach. "If a business is entering into an agreement with a po- tential competitor, in-house lawyers have to be aware of these new provisions and really need to be mindful that their agreement is not fixing prices or dividing up the market in some fashion that could be in violation of the Competition Bureau," Wylynko says. The amendments, which came into effect in 2009, en- hance the criminal enforcement of cartel agreements related to price-fixing and collusion. Further amendments this past March came into force that allow for more effective criminal enforcement against the most se- rious types of cartel agreements while providing businesses with more freedom and flexibility to benefit from legitimate alliances with competitors in order to Untitled-1 1 avoid discouraging companies from engaging in potentially beneficial arrangements. As well, collaborative ar- rangements, such as joint ven- tures and strategic alliances, could be subject to review un- der a civil agreement provision that prohibits them in situa- tions where they could lessen or prevent competition. Other legislative changes that have come up at corporate counsel events this year include the proposed electronic com- merce protection act, which would require all businesses that use e-mail, automatic down- loads, and telemarketing to pro- mote their products or services to comply with the new rules. While bill C-27 wasn't pro- claimed once Parliament was prorogued last December, lawyer Carol Anne O'Brien, who pre- sented a session earlier this year about the implications of the Canada's new anti-spam law will make life difficult for some businesses, according to Carol Anne O'Brien. new law, said that because it had passed three readings, she expects it will be revived soon. In an accompanying paper provided to lawyers who attend- ed the session, O'Brien, who recently launched her own law firm, noted the act "was meant to deter the most dangerous forms of spam, such as identity theft, phishing, and spyware. As such, the legislation would no doubt be welcomed by a major- ity of consumers and businesses. However, there are reasons for concern about this proposed legislation from the perspective of businesses that use e-mail and other electronic messages as a component of their marketing and advertising activities." The provisions could make life difficult for some businesses, she noted. "In general, businesses will be forced to obtain direct consent from potential customers before sending any commercial electronic messages, including e-mails and automatic software downloads. Given the prevalence of electronic messaging as an important component of com- mercial marketing and advertis- ing, this is likely to be extremely burdensome, forcing businesses to curtail or even cease using meth- ods of communication that can be effective and cost-efficient." Also at the session, Darryl Hiscocks and Cheryl Thacker of McMillan LLP spoke about On- tario's Accessibility for Ontarians with Disabilities Act. They said it will take time for businesses to comply with the employment and customer service require- ments and noted the act would ultimately have far-reaching legal and financial implications for all companies in Ontario. Wylynko, who chaired the ed- ucational seminar, agrees the dis- abilities legislation has prompted many in-house lawyers to start preparing now. "Each workplace will require policies and training with regards to how private-sec- tor companies can provide cus- tomer service provisions in order to comply," he says. 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