Canadian Lawyer InHouse

21 CANADIANLAWYERMAG.COM/INHOUSE NOVEMBER/DECEMBER 2018 Cross-border transportation of goods is another challenge. "Trucking is the wild wild west and one of the untold stories," says Ujczo. "We have a shortage of truckers. Millennials do not want to do it. There are a series of new regulations in the U.S. and a lot of truckers do not want to cross an international border." As well, a lot of agreements with transport companies are "done on the fly and don't get reviewed by legal," he says. "Transportation providers will go to the highest bidder re - gardless of a contract. We have had situations where they respond by saying 'so sue us.' "Make sure you know what contracts you have in place, not only in transportation but also with suppliers. Look at your own business documents and relationships and see if there is certainty," says Ujczo. Given the current volatility, trying to lock in prices whenever possible is also a priority, he adds. The sudden imposition of tariffs by the U.S. earlier this year under national secu - rity grounds and the response from Canada has also raised the prospect of force majeure clauses being invoked to escape from con- tractual obligations. "This issue is starting to be litigated," says Ujzco. Another issue related to tariffs that needs to be addressed is in the area of large in - frastructure projects, since steel in these projects may move back and forth across the border a few times for finishing, says Tereposky. "How many times are you go - ing to have to pay duties? Ideally, it would only be once," he says. He agrees that ex- isting contracts with U.S. suppliers should be reviewed. "It is in both parties' interest, because it is so unpredictable under the Trump administration." Added costs incurred by retaliatory trade measures are a possibility that need to be covered in future contractual agreements, says Todgham Cherniak. "Make sure you have a provision related to tariffs, just as you used to have related to fuel surcharges." If possible, she says, existing contracts should also be amended. "You can't hope this all goes away. You have to take steps to ensure you are protected and adjust your risk strat - egy." Mitigating your risk also requires in- creased contact with the Canadian govern- ment in case there are future trade sanctions imposed by the U.S., says Tereposky. "You need to be engaged with Canadian officials as soon as possible. There is a new level re - quired that has not existed before." Good relationships with all levels of government are vital, agrees Ryan Mills, general counsel and corporate secretary at the Dairy Farmers of Ontario. "These are interesting times. The key thing is you have to remain calm and get your message out," says Mills. Untitled-1 1 2018-04-24 11:16 AM

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