Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/1171384
www.canadianlawyermag.com/inhouse 31 IN AN ERA when fewer people interact with their bankers on a personal level, and more and more transactions are carried out electronically, it's the human touch that has become vitally important to a program created by BMO Financial Group's liti- gation department. The initiative is designed to protect vulnera- ble customers, including seniors, those who have a reduced ability to make financial decisions or those who rely on others for their physical care, so they don't become victims of financial abuse by their family members or caregivers or become targets of fraudsters posing as Canada Reve- nue Agency representatives, family members claiming to be in trouble overseas, lottery agents promising big rewards after certain fees are paid or lonely singles looking for romance as well as financial support. While banks aren't in the business of con- trolling what their customers do with their own money, associate general counsel Dina Ra- phaël says that as bankers and as litigators, she and her colleagues feel a responsibility to the bank's customers. "There is a real sense of accomplishment and of making a difference, when you can prevent Looking out for the vulnerable BMO's initiative protects the vulnerable from financial abuse by family members, caregivers and fraudsters litigation and disputes and find reso- lutions. Because of the role we have in the organization, I always feel that we are uniquely placed to identify opportunities, trends and risks, and I feel that we have the responsibility when we do [find problems] to try to find a solution, whether it's to help our customers or help our business, or do both at the same time. We have to tackle those issues when we are aware of them." According to Raphaël, front-line bank employees and those working in the voice of the customer group (an executive resolutions team that helps answer cus- tomer inquiries and solve disputes) were becoming more aware of potential financial abuse happening to their clients and were bringing those situations to the attention of the litigation department. Since the litigation department deals with confidential and privacy issues in addition to resolving other legal issues, it was a natural destination for em- ployees seeking advice on financial abuse matters. It was also appropriate since the litigation de- partment had dealt with cases of financial abuse in the past and had experience with working to mitigate the harm they caused. Wanting to capture that experience and share it with front-line staff, Raphaël, Isabella Massimi and Jean-Pierre Michaud mapped out the steps they took while dealing with previous financial fraud situations and developed protocols for spe- cific scenarios bank employees might encounter when dealing with potential victims. They also worked with members of other departments, such as global investigations, who offered input into how these frauds worked and with compliance specialists who could ensure the bank wasn't overstepping its authority. The next step was to launch a pilot project in CATEGORY: Litigation management COMPANY: BMO Financial Group his team (which included senior counsel Kelly Kwan, legal counsel Nicolas Chaput and associ- ate legal counsel Nicole Chiarelli) were trying to do was so novel that no roadmap existed for it and there was nothing to outline what should be phase one, phase two, etc. It also helped that Uber found good partners, and that includes the team sitting on the other side of the table. Cloutier says he understands companies be- ing uncomfortable reaching out to regulators, but in his experience, approaching them and keeping the lines of communication open by proactively discussing business and having conversations about how the company can make compliance more feasible or more successful is the best ap- proach and one that finds a receptive audience. "We really did find a willing and helpful partner in Revenu Québec so this was not an adversarial relationship. In fact, it was quite the opposite. That helped to move the project along because everybody was involved in getting to the end goal. The only question was how are we going to do it, how are we going to build the agreement?" As for the relationship between Uber and its outside counsel, Millard says it is so strong and effective because Cloutier and the McCarthy team really spent the time working with Uber and developing a deep understanding of its business. Over the years, the firm has even sent three externs to Uber, including one, Chaput, who permanently joined the team. "We don't really think of McCarthy as external counsel as much as in-house counsel who work in a different office," says Millard. Without that dedication and connection, Millard says, it would have been impossible for McCarthy to have been able to help Uber arrive at the agreement with Revenu Québec. He notes, for example, a fine distinction in the two types of Uber's driver-partners: those who pick up passengers and those who deliver food for the Uber Eats delivery service. He says that in Quebec passenger drivers "are taxed from the very first dollar. If you're a delivery partner, you're not. You're subject to the same multiplier thresh- old that everybody else is, so $30,000 in earnings before having to set up a QST or GST number. Because Nick understood that much about our business, he was conversant in that distinction and made sure it got into the contract." (Left to right) Alan Dobbie, team lead, executive resolution office, Gigi Gonyea, senior manager, voice of the customer, Dina Raphaël, associate general counsel, Marilyn Abate, director of forensic investigations, and Sean Scanlan, director.