Canadian Lawyer InHouse

April/May 2021

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

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www.canadianlawyermag.com/inhouse 29 reliance on whistleblower lines and other reporting mechanisms is critical in these times of uncertainty. "Businesses should not be looking to reduce internal controls as a means to save costs because really, in the long run, a lack of control at times like these can result in losses that eclipse any cost savings associated with reducing compliance controls," says John Fabello, a partner at Torys LLP. Organizations should also focus on employee mental health, as unhealthy employees are more likely to lapse into misconduct. Talbot and Fabello have been recommending that clients encourage employees to use mental health and employee assistance programs and ensure they are taking vacations. Internal investigations have also changed considerably during the pandemic crisis, so in-house counsel should have a strong investigations plan that includes considering the purpose of the investigation and the triggering event. "The other really critical point for in-house counsel is to consider who is conducting the investigation," says Fischer. "The most important rule is that no one involved in any of the conduct that's under investigation should be involved in the investigation because it's really key to maintaining the integrity and the independence of the process." Fischer notes that it is also important to consider who reports the person whose conduct may be in question as companies must manage many conflicts of interest. Retaining outside counsel may be advisable to deal with allegations related to the conduct of senior corporate officers, she says. Enforcement action concerning white-collar crime will unequivocally increase this year in Fabello's view. "Don't be lulled into thinking there won't be enforcement action because there's usually a 'calm before the storm,'" he says. Cole agrees. "You will not only have an increased number of new cases but you will also have a bit of a backlog on previous cases being cleared as well, so I expect it will be a busy time for the enforcement agencies." "If companies have already done risk assessments pre-pandemic, a critical thing to do would be dust off that risk assessment and consider whether risks have changed in terms of type and magnitude." Anthony Cole, Dentons

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