red line  THE AMPERSAND  red line

Bringing people together in a more personal, authentic way
than an ‘and’ could ever do.

November 2009 Newsletter

September 4, 2018
Dear Friends and Clients,
Hard to believe we’re already hitting the holiday season.  I must say I wasn’t gripped by the holiday spirit when my Starbucks started serving coffee in Christmas themed cups in mid-October but it’s now starting to feel decidedly festive outside.  No doubt 2009 was a challenging year for many of us.  An entire generation now has its “you should have been there when…” story.  The baby boomers no longer own that mantra when referring to the early 80s or early 90s.  It has been a tough year but 2010 will be better.  I’ve decided to start adding a quote of the month to this newsletter and apropos of the impending calendar flip, I like this one:

“Finish each day and be done with it. You have done what you could. Some blunders and absurdities no doubt crept in; forget them as soon as you can. Tomorrow is a new day; begin it well and serenely and with too high a spirit to be encumbered with your old nonsense.”

~Ralph Waldo Emerson
Month 3 of Pekarsky Group operations is now in the books and we are starting to feel settled.  The most exciting news in our world over the past month is we’ve moved into our new premises on Stephen Avenue Mall at 200, 137 – 8th Avenue SW (photographs below).  Moving is never fun and with the move comes a few changes and challenges.  Regarding the changes, we have a few new numbers.  You can reach any member of the team by calling (403) 263 4474.  Our fax number has also changed and is now (403) 263 4477.  As for the challenges, well, paying the rent seems to matter to my landlord.  Please give us a call or drop by so we can tell you about our many service offerings.  We’d love to come to talk to you, your firm, legal department or company about ways we can help.  From recruitment to outplacement; retention strategies to succession planning; client interviews, surveys, lunch and learns, retreat facilitation and much more.
On account of the holiday season we will send our December newsletter in early 2010.  In the meantime, enjoy the holidays.

The Pekarsky Group Welcomes Ranju Shergill


Ranju Shergill, Vice-President, Client Satisfaction, has achieved success developing and growing corporate business development strategies, designing and implementing human resource programs and policies, cultivating client relationships and with expanding the markets of a new technology.


Ranju’s passion and expertise is people and business issues affecting professional services firms and consulting companies. Her career has focused on client relations and building strong teams to support and retain clients. She is dedicated to her work and the professional relationships she forms with her clients and team members.


Prior to joining The Pekarsky Group, Ranju was a member of the management team of a start-up clean technology company providing products to agriculture, reclamation, municipal, and horticulture markets across North America. She was able to increase market penetration by delivering client proposals, presentations, and marketing strategies, along with developing new client relationships.


Previously, Ranju was the Senior Vice President of Business Development and Corporate Services with a large environmental consulting company, providing professional and field services from multiple regional locations across Western Canada. During her 15 years at the organization, Ranju broadened her areas of responsibility from a scientific technical base, progressing through several management levels, and taking on new areas of business within a fast growing organization in a competitive market for services and people. Ranju led multi-functional teams including human resources, marketing, client relations, and corporate legal. She served as a Board Director, and Executive Founding Partner of the organization from 2005 to 2008.


Ranju holds B.Sc. from the Simon Fraser University in British Columbia with a major in Biological Sciences.


Ranju also is a member of the Advisory Committee of the Calgary Crowfoot YMCA, loves to travel, and resides in Calgary with her husband and two children.

The Pekarsky Group Relocates


We are pleased to announce our new office has opened on Stephen Avenue Mall.  Please update your contact directories with the following address, phone and fax numbers:


The Pekarsky Group
Suite 200, 137 – 8th Ave SW
Stephen Avenue Mall
Calgary, Alberta
T2P 1B4


Main: 403.263.4474
Fax:   403.263.4477


We invite you to visit us in our new space anytime.


More Law Firms Open to New Partnership Models

Daryl-Lynn Carlson
CBA PracticeLink
View original article at


More Canadian law firms are revising their partnership arrangements in ways that bring them closer to their American counterparts.


The trend follows challenges faced by law firms in ensuring their partnership models remained profitable during the economic downturn of late 2008 and 2009.


But it has also been driven by a new generation of lawyers who are more concerned with lifestyle than investing capital and putting in the long hours to achieve traditional partnership status.


The primary change in partnership structure has been the introduction of ‘non-equity partners’ at a number of law firms in Canada inside of the past year.


The ‘non-equity partner’ is a model that previously, only a small number of firms had embraced, says Robert Denney, of Robert Denney Associates, Inc., a strategic management, marketing and strategy consultancy based in suburban Philadelphia, Pa.


“This non-equity trend or status really has gone off and on for years, but in the last few years, it has increased dramatically,” he points out.


“One reason is to lengthen the track to equity partnership to give young lawyers more time to develop their skills and particularly for marketing and business development.


“It also enables the established partners to postpone their decision on who can join them, while preserving the profits for those who’d invested capital in the firm years earlier.”


A new generation thing


Yet the title of equity partner has advantages for both the firm and associates, observes Denney, author of a widely-read annual report on legal-sector trends, “What’s Hot and What’s Not in the Legal Profession?”


“You can retain associates or younger lawyers who will not become equity partners by the firm’s choice and yet are very viable, but who would leave the firm if they didn’t have the partner title” after the requisite wait period of six to nine years, he says.


As well, he notes, “There are many young lawyers today who just don’t want to become partners. There are additional responsibilities, they have to work longer hours and are required to make capital investment. I think a lot of young lawyers just wrap that up and call it quality of life.


“It’s a new generation thing.”


So how does a law firm strike a happy medium to make both associates, and partners, happy?


Denney admits there’s no easy answer.


“Our recommendation to firms really depends on the case at each firm and what their issues are although, overall, I favour the concept of non-equity partnership,” says Denney.


“That’s been a change in our firm’s thinking over seven or eight years ago, but it could be used as a temporary step or a permanent step to keeping everyone happy,” he says.


Ian Dantzer, managing partner at Lerners LLP in London, Ont. says his firm has introduced a non-equity partnership option which is working out well. “It’s harder for people to develop a practice than it used to be. The sheer number of lawyers is one reason,” he says of the legal sector.


“I think also associates are asking just to become involved, to gain a sign of recognition, get a marketing tool (with a partner title) and know they have can achieve progress.” He adds, “In the short term I think we’ll see the two-tier structure being used more often.”


Adam Pekarsky, President of the Pekarsky Group, a legal consulting and recruitment firm based in Calgary, acknowledges the typical track to partnership has changed, particularly in the time frame it takes associates to achieve the status. The historical path to partnership has been pushed out.


“A few years ago, the typical normal course to full equity partnership was seven years,” he says. “But I would say now the typical track, and obviously there are exceptions, is probably about nine or 10 years. It is simply a way for the law firm to get the benefit of a couple of more years of leverage on people and at the same time, it allows those people to market themselves to the clientele of the firm under the moniker of partner,” says Pekarsky.


All that should matter is the clients


He notes that the non-equity designation can be a tough sell.


“If you’re not making a capital contribution and not pulling up the profits, are you really a partner? Technically no, so that’s why they call them non-equity partners or income partners.


“But there’s nothing disingenuous about that, it’s just a title and clients are going to give more credence and likely pay a higher rate to someone who is called a partner rather than associate.”


He says law firms are still inviting performers to become full partners after proving themselves under the non-equity title. But for associates who’ve achieved the status of non-equity partner, in the interim, the title is something to take advantage of.


“When a client says to a lawyer, ‘Are you a partner?’ that lawyer needs to look the client in the eye and say ‘yes’,” says Pekarsky. “All that should matter is the clients.”


James Cotterman of international law firm consultancy Altman Weil, Inc. says he has mixed sentiments about non-equity partnership, based on the experiences of law firms he has observed.


He says within the legal profession in the United States, the non-equity partner has been “the fastest growing segment of the marketplace, which is interesting, in a way, because there’s a lot of debate as to whether that growth has been good growth for firms.”


He attributes the growth in non-equity partnerships to most law firms’ inability to recognize just what to do with their top performers who aren’t quite good enough for full equity partnership status.


Law firms recognize “we have lots of great lawyers, but they’re not quite up to snuff as equity partners so what do we do with them,” he observes.


He believes the trend is perhaps more prevalent because of a generational focus on lifestyle.


“If you have a rising star, you can give them a mantel that they can go out and market themselves as a partner and see what they can do with it.”


But he says that law firms are not reaping the benefits financially. “What we found is these positions were created to manage earnings. But if I call the bottom rung of my partners ‘non equity’, and they’re my lowest-paid partners, have I changed anything fundamentally about the economics of my firm? No, I haven’t. But it looks good in the lead forms.”


Jerri Cairns, managing partner at Parlee McLaws LLP in Edmonton, says her firm has recently undertaken a review of its partnership criteria.


The firm has traditionally enabled associates with six to seven years of experience apply for traditional partnership status, but determined it was time to revisit its structure.


“We recently struck a committee to look at our criteria. A lot of firms across North America are doing this as more of a management driven process,” she says.


“We haven’t looked at this for some time and my thought was we should look at it in terms of what other law firms were doing and see how we compare with the financial criteria.”


The firm formed a committee and its members have invested their own time to contact competing law firms to determine how best to revise its partnership structure.


The committee’s recommendations have been tabled and Cairns says it will be another month or two before the partners vote on their acceptance.

Law Departments Take Action on Cost Control

According to the 2009 Hildebrandt Law Department Survey
November 19, 2009
View original article at


Hildebrandt, the legal profession’s premier consulting firm, and a business within Thomson Reuters, today announced the release of key data on cost control strategies from its 2009 Law Department Survey.


According to the 2009 Hildebrandt Survey, law departments are implementing a wide range of cost management strategies as a way to cope and thrive in today’s economic environment. Cost control measures cited in the Survey encompass inside legal spending, legal staffing, outside counsel management, and technology.


“Law departments are adopting new ways of business that demonstrate aggressive and innovative thinking on cost containment,” stated Lauren Chung, Director and Survey Editor.


Inside Legal Spending


The Survey shows that most law departments realized immediate savings through a reduction of non-core spending in areas such as travel, meetings, and training. Compensation for legal staff has also been impacted by salary freezes or minimal increases.


“Compensation for in-house counsel will undergo significant change in the coming year,” said Ms. Chung. She added, “Over the past several years, in-house attorneys have been receiving an annual 6-8% median increase in total cash compensation. While we may not see a reduction in compensation, we do not anticipate annual increases at these levels over the next year or so.”


Reducing travel expenditures tops the list of 18 measures tracked in the Survey as the most widely implemented cost savings strategy among law departments.


82% of the companies reporting indicated that they have reduced or will reduce the travel budget for the law department.
An additional 8% are considering this strategy.
Only 10% have no plans to reduce their travel budget.
Many law departments are also reducing their budget for meeting and training events.


77% of the companies reporting indicated that they have or will reduce their budget for meeting and training events.
7% are considering this measure.
Only 16% have no plans to reduce budget for these events.
Over half of the companies (51%) have implemented or will implement salary freezes for law department staff.


An additional 11% are considering salary freezes.
38% have no plans to adopt this measure.
On the other hand, nearly 90% of the companies indicated that they have no plans to reduce salary or use variable pay in lieu of base salary increases as a cost savings option.

Inside Legal Staffing


Most law departments reported that they are not planning to reduce staff as a cost reduction strategy or increase the use of contract and temporary staff. Indeed, a significant number of participants reported that they intend to keep more work in-house rather than use outside counsel.


Reduce lawyers


63% of the companies have no plans to reduce the number of lawyers.
30% implemented or will implement a reduction in lawyers.
7% are considering a reduction.

Reduce non-lawyer professionals


63% of the companies have no plans to reduce the number of non-lawyer professionals.
27% implemented or will implement a reduction.
10% are considering this option.


Reduce support staff


59% of the companies have no plans to reduce the number of support staff.
29% implemented or will implement a reduction.
11% are considering a reduction.


Increase use of contract/temporary staff


73% of the companies have no plans to increase the use of contract/temporary staff.
Only 13% have increased the use of contract/temporary staff.
14% are considering this option.


Outside Counsel


In the area of outside counsel management, the Survey confirms that, after years of discussion on this topic, the use of alternative fees is finally gaining traction. This is confirmed by Hildebrandt consultants who work extensively with a wide range of law firms.


Regarding traditional billing arrangements, rate freezes have become prevalent and, to a slightly lesser extent, law departments are negotiating rate decreases with their outside counsel.


The use of regional or boutique law firms, typically in lieu of large national firms, has also become a viable alternative for law departments.


“The perpetual focus of inside lawyers on outside counsel costs, services and value has jumped to a new level,” commented Jonathan Bellis, Vice President and Chair of Hildebrandt’s Law Department Consulting practice. He added, “There is an unprecedented amount of discourse about the fundamental law firm business model, because law departments are demanding more cost-effective alternatives to current arrangements.”


Alternative fee arrangements


55% of the companies reporting indicated that they have implemented or will implement the use of alternative fee arrangements (non-hourly) with their outside counsel.
27% are considering alternative fee arrangements.
Only 18% have no plans to use alternative fee arrangements.


Rate freezes


64% of the companies reporting indicated that they have implemented or will implement rate freezes with their outside counsel.
23% are considering rate freezes.
Only 14% have no plans for rate freezes.


Rate reductions


46% of the companies reporting indicated that they have implemented or will implement rate reductions with their outside counsel.
26% are considering rate reductions.
29% have no plans to negotiate rate reductions.


Use of regional or boutique law firms


50% of the companies reporting indicated that they have implemented or will implement the use of regional or boutique law firms to reduce outside counsel costs.
24% are considering the use of regional or boutique law firms.
26% have no plans to implement this measure.




Electronic billing has gained more popularity in this period of heightened urgency to control costs. Visibility and accountability for spending are top concerns for law departments. Emergence of technologies, such as e-billing, has made legal costs more transparent and manageable.


Electronic billing


57% of the companies reporting indicated that they have implemented or will implement e-billing as a cost savings measure.
15% are considering the use of e-billing.
27% have no plans to adopt e-billing.

Invest in knowledge management systems


39% of the companies reporting indicated that they have invested in knowledge management systems as a cost savings strategy.
24% are considering this option.
37% have no plans to invest in knowledge management systems as a cost savings measure.


Note: Due to rounding issues, percentages may not total to exactly 100%.

Pay Cuts Smaller Here

Jim Middlemiss
Financial Post
November 18, 2009
View original article at


Associates at Canadian law firms are weathering the recession better than their U.S. counterparts, according to an new salary survey from Robert Half Legal.


While associates at large U.S. law firms will see salary declines between 3.5% and 5.4% in the coming year, in Canada, the declines range between 1.5% to 4.9%. Associates who have more than 10 years of experience will experience a slight increase of 0.2%.


According to the survey, recently licensed lawyers are bearing the brunt of the declines. Those in their first to third year of practice in Canada will see a drop of 4.9%. In the United States, the decline is 5.4%. For first-year associates, the decline is 1.5% compared with 5.1% in the U.S.


Despite the declines, lawyers are still well paid. A lawyer with four to nine years of experience at a large Canadian law firm can expect to earn between $119,750 to $224,000, while those in the one to three-year range will earn between $84,000 to $116,750. Those starting out will earn between $81,000 and $88,500.


That doesn’t include bonuses. Also, it’s a national average. In a city like Toronto, the salaries would be 1.064% higher, while in Saskatchewan, they would be about 8% lower.)


“As it stands now, current salaries [in Canada] have remained relatively flat,” explained Jonathan Veale, director of Robert Half Legal in Toronto.


“I expect that star associates will continue to see increases in their base salary and compensation. High-performing lawyers can certainly expect to see increases.”


That doesn’t mean all is rosy. “The day of all associates moving up lockstep are probably long gone,” he said. Law firms have traditionally moved lawyers of the same vintage up the salary ladder at the same time. So when third-year lawyers enter their fourth year, everyone is bumped up a salary level despite performance. While considered egalitarian, the automatic raises for everyone don’t sit with clients of high-performing associates.


Also, Mr. Veale added that the length of time to partnership — the period when associates join the inner circle and can share in the profits — continues to increase. Twenty years ago a lawyer could make partnership in six to eight years.


Today, he said, the number is between eight and nine.


While law firms in the U.S. (and for that matter the U.K.) have been whacking staff the past year, the bleeding seems to have stopped.


Only 10% of North American law firms plan to decrease staff, while 25% intend to add people. About 65% expect their numbers to remain the same.

Complete List of 2009 CBA Award Winners

Julius Melnitzer
National Post
November 25, 2009
View original article at


Following is a list of the 2009 CBA award winners, who will be honoured at the CBA Awards Ceremony and Reception on Friday, Nov. 27, 2009 in Toronto at the King Edward Hotel’s Sovereign Room:


Walter Owen Book Prize for outstanding new contribution to Canadian legal literature: Bradley Crawford of McCarthy Tetrault and Professor William Tetley of McGill University and Langlois Kronstrom Desjardins.


President’s Award for significant contribution by a Canadian jurist to the legal profession, the CBA or the public life of Canada: Gail Asper of CanWest Global Foundation and The Asper Foundation.


Louis St. Laurent Award of Excellence for distinguished and exceptional services that meet the goals and objectives of the CBA: Scott Jolliffe of Gowling Lafleur Henderson.


Justicia Awards for legal journalism: Peter McKnight of the Vancouver Sun; and Mia Sosiak, George Glen, Bruce Aalhus and Joe McDaid of Global TV Calgary.


2009 SOGIC Ally Award for achievements advancing the cause of equality for lesbian, gay, bisexual, transgendered and two-spirited people: Roy McMurtry, former Chief Justice of Ontario and a member of Gowling Lafleur Henderson.


Touchstone Award for promoting equality in the legal community: Kim Pate, executive director of Elizabeth Fry Societies.


Ramon John Hnatyshyn Award for outstanding contributions to the law: Roy McMurtry, former Chief Justice of Ontario and a member of Gowling Lafleur Henderson.


SOGIC Hero Award for work in support of lesbian, gay, bisexual, transgendered and two-spirited movements: Kathleen Leahy of Queen’s University Faculty of Law.


Young Lawyers Pro Bono Award for outstanding legal services benefitting the community: Tricia Kuhl of Blake, Cassels & Graydon.

In-house Lawyers Not Getting Rich on Bonuses: Survey

Kelly Harris
Canadian Lawyer Magazine
November 23, 2009
View original article at


A recent corporate counsel survey found less than 10 per cent of in-house lawyers receive additional compensation of 50 per cent or more of their base salary.


The annual legal compensation survey polled attendees of the Canadian Institute In-house Counsel Congress held in Toronto last week. Carol Fitzwilliam conducted the survey for Montreal-based Fitzwilliam Legal Recruitment. She says the findings help to dispel a myth that “in-house lawyers are getting rich on the back end.”


While the survey did not reflect a significant number of in-house counsel, Fitzwilliam says it is consistent with what she hears in her recruiting practice.


Additional compensation, of 35 per cent of their salary or less, is what the vast majority of lawyers receive. Additionally, 60 per cent of respondents reported their base salary was $150,000 or more.


Less than seven per cent of respondents, all of whom have less than five years experience in-house, reported their base salary as less than $100,000.


The survey was part of a session on “Hiring the top-performing in-house team: identifying talent and providing competitive salaries.” Fitzwilliam along with Marvin Shahin, in-house lawyer and director of regional development for the TDL Group Corp. — Tim Hortons — in Quebec, hosted the session.


Both say the key to attracting the best lawyers is not the base salary, but rather the opportunities afforded by the company.


However, that doesn’t mean lawyers are willing to sign up for bargain basement salaries. Fitzwilliam and Shahin say the caveat is the base compensation has to be reasonable.


“Once the enumeration is adequate and is there, lawyers tend to be type-A personalities, they look for something else,” Shahin says.


One of the things in-house counsel look for is the whole package, or as Shahin says, “the envelope.”


This can include bonus packages, pension plans, professional training, professional fees, and vacation time.


In addition, lawyers who want to go in-house tend to want to be more involved with the company than simply working on a single file or project.


In-house counsel want to take part in many aspects of the company and help build it.


Shahin says Tim Hortons employs a unique way for lawyers to understand the operations of the corporation.


“We require all our employees to take an abbreviated form of training,” he says. “Imagine telling a lawyer with all their experience and degrees

‘You are going to bake some donuts for a few days.’”


The survey also found half of the respondents considered total compensation of members of their legal team “appropriate and competitive within the market.”


The respondents who felt satisfied with their overall pay package also said they had “sufficient information regarding compensation.”


The survey concludes then that communicating compensation issues with employees is a valuable retention tool.

More Legal Work Going Inside

Canadian Lawyer’s Annual Corporate Counsel Survey 
Kelly Harris
Canadian Lawyer Magazine
November/ December 2009
View original article at


There will be a greater demand for corporate legal work in 2010, but law firms will not likely be reaping the benefits according to the annual Canadian Lawyer corporate counsel survey.


Nearly 60 per cent of respondents from some of the top corporate and government legal departments in Canada say they expect more combined internal and external legal work in 2010 compared to 2009. However, nearly 80 per cent of those respondents say the work will be done in-house.


A major reason for the increase in work for in-house counsel is the changing nature of regulation and legislation across North America. In-house counsel are seeing those demands in various ways, says Karen Bell, a Toronto lawyer and consultant who works with law firms, and corporate and government legal departments. “Certainly, corporately, they are looking at significant increases in requiring expertise on the regulatory side and the continuing demand placed on them for more compliance,” she says. “So they tend to look inside and want to develop their inside expertise because they feel that inside has a better perspective of how the impact of the regulations flows through the company.”


Nearly 30 per cent of respondents to this year’s survey came from the government ranks. Bell says public legal departments are under the greatest pressure. “In-house legal budgets have been operating fairly lean and mean for some time and that doesn’t seem to be changing. They are in the spotlight so they have to be extra cautious about how they are managing their budgets.”


Canadian Lawyer received 105 survey responses. Respondents’ combined corporate legal budgets totalled more than $180 million a year. While not everyone answered every question, the answers we got paint a picture of stagnant or tighter budgets, and greater workload. The findings of the annual survey reflect those of the 2009 Association of Corporate Counsel chief legal officer survey, which highlighted increased regulatory burdens combined with cost pressures as top issues for senior legal officers.


According to our survey, outside legal budgets rose for 45.8 per cent of respondents, while dropping for 20.8 per cent during the past year. When asked what the top factor was for the reduction in outside legal budgets, half of the respondents who indicated their budgets had decreased said there was simply less work to be done by outside counsel. Fewer than 45 per cent of them indicated it was because more work was being brought in-house.


For the coming year, 51 per cent of those surveyed said they expect to see no change in their budgets, while 28.6 per cent expect a decrease in their budgets. The number one strategy employed by legal departments facing a decrease in budgets was, predictably, bringing more work in-house. New agreements with outside counsel and a reduced workload are the other most common strategies. Salary cuts and sending more work offshore to places like India come next.


For law firms hoping to cash in on the corporate world’s increased workloads, the primary concern for in-house counsel when dealing with legal service providers hasn’t changed in the past year: be more concerned with costs. Legal departments also want outside firms to be more practical and commercial, and to better understand their clients’ needs.


Of equal concern, in-house lawyers want outside law firms to be more proactive, creative, innovative, and more
concerned with results. “That theme has been in all sorts of surveys through North America for at least 10 years now,” says Bell.


There is a general expectation that corporate legal departments will have more work in 2010 than in 2009, says BTI Consulting Group president Michael Rynowecer. He says work is being taken care of in-house through key strategies including the idea of triage — less important work receives less of a priority. Such changes are a result of legal departments facing average budget decreases of between seven and 20 per cent. “The number one driver behind decision-making for corporate counsel is risk avoidance and the number one goal is cost control,” he says. Risk avoidance is fueled by legislation and a demand for more due diligence. As a result, legal departments are demanding law firms have a better grasp of their client’s businesses. “They want them to bring knowledge of the law and the corporation. Give legal advice applying specifically to the company and avoid generic legal advice.”


It’s understandable if this is news to law firms as fewer than 28 per cent of respondents said they were asked to take part in a client satisfaction survey from their outside counsel in the past year. This issue was canvassed in Canadian Lawyer’s 2008 poll as written surveys only. We included phone and in-person surveys in this year’s poll, yet the numbers did not dramatically rise. “I think it is horrific and it just keeps playing out,” says Bell. However, just asking the question isn’t enough, followup is almost more important for law firms when conducting satisfaction surveys. “I attribute the reluctance or the failure to conduct these kinds of surveys in any form, but certainly something that is tangible or recorded so you can examine the analysis so you can share it and reflect on it, is we are not good on a whole bunch of elements of running the business. In terms of planning, investing, responsiveness, making sure we know the client and prospect inside out to be responsive, be proactive in understanding where they are going and what they need.”


Other survey questions include asking who is doing the bulk of the work for in-house counsel and whether or not that was likely to change next year. Nearly 87 per cent of respondents said one to five firms received 80 per cent of their outside work. Nearly 80 per cent of respondents said they had not changed one of their top legal service providers in the past two years.


Half of the in-house lawyers surveyed said they would be reviewing their financial relationship with their top outside law firm in the next six to nine months. Only 19.5 per cent said their lead law firm clearly provides better services than its closet competitor. While that percentage is up slightly from our 2008 survey, the percentage of respondents who said several other firms could do most of their work equally as well was also increased and was the most common answer to the question.

Litigation on the Rise
Green Laws Mean More Work for Lawyers

Donalee Moulton
Financial Post
November 18, 2009
View original article at


Our carbon footprint may be reduced as a result of new green legislation sweeping the country, but our legal landscape is likely to experience a power surge.


That’s because when Canadians get passionate about something — such as the environment — they often care enough to go to court.


“The emotional opposition to power energy projects is very significant. The Ontario ministry of the environment says it’s as vociferous as it is to landfill sites. It’s surprising,” says Dianne Saxe, an environmental lawyer in Toronto.


In Ontario, which earlier this year passed the Green Energy and Green Economy Act, that opposition may be growing fastest and strongest. “It seems to be a broader attack on the Green Energy Act and how it seems to circumvent typical environmental approvals,” says Paul Harricks, chair of the energy and infrastructure group with Gowling Lafleur Henderson in Toronto.


In an effort to fight back, lawyers and their clients are looking at new ways to apply established law. Ian Hanna, for example, has requested a judicial review of the Ontario government’s new environmental legislation. The Prince Edward County resident contends more research is required into the potential adverse health effects of wind energy before the province has the legal right to build five turbines about 900 metres from his property. In a novel move, Mr. Hanna’s legal team is using the precautionary principle to make their stand.


“The … case is a very old argument, but now it is packaged as part of the precautionary principle,” notes Ms. Saxe. “New ground may be broken for sure.”


Indeed, says Mr. Harricks, “if the decision is strongly based on health risks — and that’s a big if — it could be used in other cases.”


Other unusual applications of the law are expected. “There’s always room for new approaches and new types of arguments,” says Michel Gagne, a litigation partner with McCarthy Tetrault in Montreal.


A recent decision of the U.S. second circuit court of appeal did just that, albeit south of the border. A number of state governments had launched a lawsuit against electrical power companies with respect to global warming and power emissions. The court found in favour of the states and required the companies to reduce their emissions.


“The court of appeal decided the plaintiff states had a serious cause of action,” says Mr. Gagne. “It is the kind of case we would not have foreseen. It is possible that we will see some litigation related to some of these issues.” Certainly a recent decision from the Supreme Court of British Columbia, Heyes v. City of Vancouver, has breathed new life into what are commonly called nuisance claims. The court ruled that the plaintiff’s business had been adversely affected despite the fact that the companies in question had government approval for the work they were doing and had passed an environmental assessment.


“The concept of nuisance is being tested at its boundaries now,” says Mark Madras, a partner with Gowlings in Toronto who specializes in environmental law.


“We may be seeing some flex in the application of these principles or we may see a stricter application. It’s very much a sensitive area.”


It’s also a continuum, he adds. “The ability to advance a nuisance claim may vary in the level of intrusiveness. Solar would be at the lower end of the scale. Wind would be higher.”


The law of nuisance may well be used to address new issues, says Mr. Saxe. “Applicants could obtain approval and still face a nuisance lawsuit.”


In St. Lawrence Cement v. Barrette, roughly 2,000 residents of Beauport, Que., filed a class-action suit against the company for “neighbourhood disturbances.”


“The court held St. Lawrence Cement was responsible for dust even though it found it had not been negligent and had approval to build and operate where it did,” says Ms. Saxe.


Expect more of these environmental class-action suits, says Mr. Gagne.


He also believes the door may be open for another, and newer, type of suit against government.


“Plaintiffs could allege government is responsible for enforcing its laws and regulations. If the government does not do this, private parties could sue them.”


Lawyers need to keep abreast and stay tuned. “It’s hard to know where the fallout from some of the initiatives will be,” says Mr. Harricks.


Time, and the courts, will tell.

A Bit of the Same Old Story

Gail J. Cohen
Canadian Lawyer Magazine
November/ December 2009
View original article at


In this issue, we present our annual Canadian Lawyer corporate counsel survey. The results generally mirror other polls of in-house counsel that have been done by various organizations in North America and abroad. The bottom line is you’ve got to get to the goal line in a cost-effective and strategic way. Some of our findings:


• Legal spends are going up but much of that extra work is being done in-house;
• Outside law firms need to be more concerned with costs;
• Outside service providers should better understand and be able to react to issues involving their clients’ business.


Not a lot of surprises in the results of our survey (see page 34), but what continues to surprise is that the responses aren’t changing very much year over year.


For me, one of the biggest shocks on the lack-of-change front are the numbers around law firms that do (or rather don’t do) client surveys — checking in to see how you’re doing in the client’s eyes. Our survey shows 72 per cent of in-house counsel respondents say law firms have not contacted them in any way over the past year to take the pulse of the relationship.


As one general counsel on a recent panel I attended noted: “Outside providers leave lots of low-hanging fruit.” She essentially said it was important for lawyers to really get interested in their clients and get to know their business. A big part of that is communication and an integral aspect of communication is understanding what you are and aren’t doing right — from the client’s perspective.


I have written before about the benefits of doing client satisfaction surveys, either formal or informal. In this ultra-competitive environment law firms are now in — only 19.5 per cent of those surveyed said their lead law firm clearly provides better services than its closest competitors — it is foolhardy to not talk to your clients to find out how you’re doing.


Those types of discussions will likely lead to other opportunities as well. It’s all part of getting to know the clients better, understanding their business better, and as a result serving them better. And on this point, a little sweat equity goes a long way. Don’t charge for every hour spent researching, for example. A couple of hours off the clock will often prove to be great relationship builders that will pay off with bigger projects down the road. Clients appreciate creative and strategic thinkers who understand the nuances of their business. Think of it as a partnership with the client whereby a legal adviser is an integral part of the success of a company and that company then relies more on its legal adviser. Win-win all the way!


Other panellists at the event mentioned above talked about how firms distinguish themselves to clients. Knowing the client was first and foremost but drilling down, GCs also want honesty. In this case, that translates into knowing the client well enough to know where your firm, or even each lawyer, can best serve the client but also not to be afraid of admitting if there are weaknesses. One of the panellists went so far as to say that sometimes, law firms should be willing to pair up with other firms to really serve the client as best they can. A novel idea, but there it is.


No rocket science, just sensible and relatively simple actions that can make all the difference in building strong and lasting lawyer-client relationships. I look forward to seeing changes in our results in future polls.

Don’t Turn Up the Heat on the West
By Making Western Provinces Pay for Adventures in Global Warming Policy We Will be Playing with Confederation

Rex Murphy
The Globe and Mail
Oct. 30, 2009
View original article at


An article on The Globe’s front page carrying the headline “Canada can meet its climate goals, but the West will write the cheques” raises, among many others, two very interesting points. The article is about a study, conducted by two ardent environmental advocacy groups – the Pembina Institute and the David Suzuki Foundation – and was sponsored by the Toronto Dominion Bank.


The headline has the virtue of capturing the first point I want to underline. In our new green-genuflecting age any substantial, purely Canadian effort to curb greenhouse gases – any policy, economic or otherwise – will have a massive and negative impact on Alberta and Saskatchewan.


If there are taxes on oil development, if we introduce carbon penalties on industry, if there is a deliberate brake put on the oil sands, or an effort to shut them down altogether – this latter not an unthinkable proposition in certain quarters – whatever is done will, sooner or later, take revenues and jobs, take enterprise, out of Alberta in particular. For purely projected and speculative benefits to the world’s climate a century hence – and, despite the unctuous insistence of many to the contrary, speculative they remain – people are seriously considering policies that will penalize the West for its success as an energy producer now.


This is reckless. The oil industry of some Western provinces has been Canada’s dynamo these past few years. It has been our major shield during this recession. It has given the dignity of jobs to tens of thousands of Canadians. It is all that. But if “Central” Canada, as the political and economic axis of Toronto, Ottawa and Montreal is still known in some quarters out West, now – under the impetus of the green craze – is seen to be setting limits, placing penalties, or bleeding disproportionate taxes, particularly in Alberta’s case, it will churn a backlash that will make regional hostilities set loose by the national energy program a few decades ago seem like warm-ups for a yoga class.


It will shape a whirlwind of political discontent, set the West against East, and far from incidentally have deep repercussions in the many other provinces that have their citizens working in one capacity or another in the oil patch. The fury over the national energy program may be spent, but its memory – pardon the word – is green. That fury, I reiterate, will be as nothing compared with the political fury of a second attempt to “stall the West.” Should some global warming action plan attempt to put the oil sands and Western energy development at significant disadvantage, or draw taxes out of the economies of the Western provinces to pay for adventures in global warming policy, we will be playing with Confederation.


That is a prediction it takes no computer modelling to make. If Alberta in particular, and the Western provinces more generally, come to be portrayed as villains in the global warming morality play, more than the climate a century hence is at stake.


Secondly, I would urge a caution to all people working in the oil sands in particular. The TD study – farmed out to the economic specialists of the David Suzuki Foundation and the Pembina Institute – should be seen as a loud, low shot across the bow. The oil sands project, already castigated by every green-blooded organization on the planet, featured in a full-blown National Geographic hit-job some months back, is going to be the great emblem of a world “toxifying” itself, and paving the way for global warming Armageddon. It is now boilerplate in news stories as the “dirtiest project on the planet.” It photographs vividly – as National Geographic’s glossy toss-off demonstrates – because of its scale and makes for wonderful anti-energy posters. The oil sands are a target.


Environmentalists are very good at what they do. They play the news media better than Glenn Gould doing a Bach prelude. They know how to sell their point of view, how to build a villain, how to shortcut an argument. Big Green – and there is a Big Green as much as there is a Big Oil – knows the game. Find a symbol. Find one project that, superficially, can stand for all others. The oil sands, despite the hundreds or thousands of less scrupulous and governed energy projects all over the world, despite China’s spectacular use of coal, or the accelerated developments all over the Third World, will be the emblem of choice for the eco-warriors. The media-smart apostles of Al Gore, the Sierra Club and hundreds of other NGOs and eco-lobbies will turn the oil sands into the blight of our time.


It’s only a number of weeks ago, remember, that the great crisis in the auto industry called forth billions to rescue the great manufacturing base of Central Canada. The West will note the contradiction. Spend billions to save an industry that runs on petroleum – it’s here in Ontario – hit the source industry to “save the planet” – that’s in the West.


Pursue this course and things will get warm. And I’m not talking about the climate.