Canadian Lawyer InHouse

April/May 2020

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

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NEWS ROUNDUP 4 COMPETITION LAW NEWS BRIEFS Data security top of mind, report finds The results of a survey by OpenText and Ari Kaplan Advisors were released in February, indicating that legal departments are increasingly adopting innovative approaches to support their growing responsibilities and mitigate risk amid ever-growing amounts of data. The fourth annual report, which surveyed 35 legal operations leaders in Canada, revealed that 94 per cent have data security concerns about distributing electronically stored information to multiple discovery vendors and law firms. Taking control of e-discovery costs is another priority with 71 per cent adopting a centralized approach to managing e-discovery data. Angela Avery joins WestJet as GC Angela Avery has joined WestJet as its executive vice president, general counsel and corporate secretary. Avery brings more than 25 years of legal and business experience to WestJet, including in-house and leadership experience from companies such as TC Energy, ConocoPhillips and Athabasca Oil Corporation. Reporting to WestJet's president and chief executive officer, Avery will be performing legal and compliance functions in collaboration with the company's board of directors, Onex and other important stakeholders. CLOC launches legal ops directory The Corporate Legal Operations Consortium has launched a new directory to support in-house counsel in their search for an ever-increasing number of service providers. In response to feedback from members looking for a simpler way to find support and drive down costs in legal departments — together with a rapidly increasing number of services, Lessons from the Competition Bureau Randall Hofley anticipates the Competition Bureau will crack down on Competition Act enforcement Randall Hofley, a partner and expert in competition law at Blake Cassels & Graydon LLP, has returned from a two-year secondment as general counsel and senior enforcement advisor at the Competition Bureau Legal Services. The placement, which ended in January 2020, occurred under the federal government's Interchange Program. The Competition Bureau investigates violations of the Competition Act and often requires counsel for legal advice for those investigations. As a part of the senior management team during his posting, Hofley played an active role in the bureau's efforts to streamline the management of enforcement and policy matters. He was also instrumental in helping the bureau enhance the trans- parency of its endeavours through enforcement guidelines. During his secondment, Hofley worked on a number of high-profile cases, including a case against the Vancouver Airport Authority in which the Competition Tribunal was tasked with considering whether the airport's decision to limit the number of catering providers supplying airlines could be pursued as an abuse of dominance. Although the Competition Tribunal dismissed the application for an order to prohibit the airport authority from committing allegedly anti-competitive acts, it also found that the airport authority's conduct could be subject to abuse of dominance. "On the one hand, it confirmed the breadth of the scope of the Competition Act, but on the other hand, it found, based on the facts, that it wasn't an anti-competitive act and it also found that the decision didn't substantially lessen competition," says Hofley. In another interesting case in which Hofley was involved, the bureau obtained its first ever temporary injunction on consent. Under this injunction, FlightHub Group Inc. was prohibited from using false or misleading marketing practices on its websites, and The Bureau is investigating FlightHub's representations for services such as seat selection and flight cancellation, which result in hidden fees. The company has been accused of generating millions of dollars in revenue from these fees. Hofley warns that the bureau's management intends to be more active in its enforcement of the Competition Act so businesses should be prepared. "Businesses will need to be proactive in anticipating the bureau's priorities," he says. "In considering any transactions, it's all the more important to get advice early on to ensure your actions will not engage the interests of the bureau, or if they do, be in a position to explain the conduct in a manner that avoids the cost and time of a protracted review or investigation."

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