Canadian Lawyer InHouse

April/May 2020

Legal news and trends for Canadian in-house counsel and c-suite executives

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36 www.canadianlawyermag.com/inhouse FEATURE CLASS ACTIONS are a growing threat in Canada as consumers have developed a deeper understanding of their rights, and they have become increasingly creative in the types of class action cases they can pursue. From packaged bread price fixing to the LifeLabs data breach, organizations are defending themselves against class actions in a wide variety of areas including competition law, data breaches and privacy, securities, product liability and sexual abuse. "Class actions continue to be on the rise and certainly from my perspective at a bank they are really focused on consumer protec- tion and privacy issues," says Sandeep Joshi, associate general counsel at BMO Financial Group. "Consumers have a heightened aware- ness of their rights in those areas and a desire to hold corporations accountable in what they perceive as alleged wrongdoings." In recent years, there has been an increase in data privacy class actions involving institutions that own large amounts of data, such as hospitals, while pharmaceutical companies are often the target of product liability cases. "Virtually any type of organization can be at risk of facing a class action," says Mirilyn Sharp, a class action litigation lawyer at Sharp Legal. "It is important for in-house counsel to be aware of the types of claims that could arise in their industry and not to underesti- mate the repercussions of what may seem like a small or insignificant issue." Most organizations do not do enough to prepare for the possibility of a class action, according to Harpreet Sidhu, general counsel, corporate secretary and privacy officer at Peth- ealth Inc. Ensuring enough corporate insurance coverage is in place is the first step, she says. "If you are sending out emails in accordance with CASL [Canada's anti-spam legislation], make sure your insurance policy says you are covered for any breach of CASL in case you make a miss on something," she says. Addi- tional steps include updating privacy policies and closely monitoring and tracking activities that colleagues are proposing. "When teams come to us for advice as in- house counsel, we need to get into the weeds to see exactly what they want to do, how many people it will impact and how we can track it on the back end to ensure we have the proper followup," says Sidhu. Joshi recommends taking a close look at in- dividual customer issues as soon as they arise. "Be thoughtful and considerate about whether or not that issue is isolated or potentially widespread or systemic and could give rise to a class action, and take proactive steps to take a deeper dive to understand the issue rather than being reactive after a claim is brought," says Joshi. Sharp recommends having a plan in place to deal with the prospect of a class action in the event of a data breach or a product liability case, together with careful documentation of issues that arise. Having a plan of action such as a product recall or an offer of compensation may be necessary in some cases. "In-house counsel might want to retain out- side counsel who are familiar with defending class actions in different provinces so they don't have to hire separate lawyers in each jurisdiction," adds Sharp. Staying abreast of new developments in the law and new cases that give rise to exposure is key, according to Rahool Agarwal, partner at Lax O'Sullivan Lisus Gottlieb LLP. "Class actions are a product of ingenious plaintiff counsel," he says. "They are looking Class actions on the rise As class actions increase in volume, variety and complexity, in-house counsel must take action to prepare "Class actions continue to be on the rise and certainly from my perspective at a bank they are really focused on consumer protection and privacy issues." Sandeep Joshi, BMO Financial Group

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