Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/1336129
32 www.canadianlawyermag.com/inhouse FEATURE FOLLOWING A YEAR of immense disruption to the legal landscape, fuelled by courtroom lockdowns, office closures and a new world of virtual solutions, in-house counsel wait anxiously to see what 2021 has in store. As many people begin to think about a gradual return to offices this year after months of remote working, employers are bracing for potential employment litigation. Collections will be a major problem for corporations as businesses struggle to recover from the economic fallout of the pandemic. "A lot of corporations are facing a scale of claims that they haven't faced before," says Jennifer Biernaskie, a partner at the Calgary office of McLennan Ross LLP. "Because of widespread policy changes for the last year in response to the pandemic, a lot of policies have had a more far-reaching effect than they've had before." New policies or corporate decisions that impact large groups of employees may give rise to class Employers brace for surge in litigation and ongoing delays in 2021 In-house counsel share strategies for mitigating against litigation risk actions, Biernaskie warns. This year may see an increase in arbitration cases and creative settlement proposals such as share exchanges, Biernaskie says, as courts struggle to clear a colossal backlog of cases. "I think we are going to see an increased reliance on digital litigation, so I don't think there will be an end in sight for things like virtual questionings and virtual mediations," she says. As people are growing more comfortable with virtual proceedings, the number of cross-exam- inations may increase because travel expenses will no longer be an issue. "We'll be forcing people to appear virtually, which expands the reach of litigation processes," says Biernaskie. The downside of virtual proceedings is that they lack the casual discussions that tend to occur when people come together in a room, Biernaskie says, as these casual discussions can lead to a resolution. The ongoing pandemic crisis is likely to be the root cause of litigation in 2021, says Sandeep Joshi, associate general counsel and managing director of corporate investigations (Canada and international) at BMO Financial Group. "When people get stressed about their personal financial situation or the financial situation of their company, they make judgments that they wouldn't ordinarily make," says Joshi. "I think you'll see a lot of claims come up around employee misconduct or corporate misconduct with respect to customers or other parties that they deal with." Privacy and cybersecurity claims are also likely to crop up as employees continue to work from their home networks that are vulnerable to attack. In-house counsel can prepare for litigation risk in the year ahead by getting more involved in risk management and in actively identifying areas that might be susceptible to internal employee misconduct, Joshi says. At BMO, Joshi and his team are actively moni- toring customer activity and vulnerabilities associated with an increasingly digital model. "We're making sure that our employees who work from home are complying with our policies and procedures as best as we can and making sure that our networks are ready and established to fend off cyberattacks as we expand our remote network," says Joshi. "We're really looking at areas of high potential "I think you'll see a lot of claims come up around employee misconduct or corporate misconduct with respect to customers or other parties that they deal with." Sandeep Joshi, BMO Financial Group