Canadian Lawyer InHouse

prudent steps to make sure your procedures are compliant, which will diminish the potential risk." If you're hit with a class action, it's important to get representation quickly and coordinate your defense, he says, because the certification process can move quickly. In terms of avoiding a class action altogether, there isn't a lot that can be done, says Yates. Consumer protection legislation makes Canadian companies vulnerable to this, "so you're better to try to protect yourself on the merits than the class action." "The legislation is deliberately encouraging of class actions in the interest of access to justice," says Yates. That means the chips are stacked against defendants, she added. It's not about having a deadwinner case; the plaintiff just has to plead reasonable cause, enough that a judge will let the case continue. SPECIALIZATION IN BUSINESS LAW Part-time, Executive LLM program for corporate counsel and practising lawyers Taught by U of T Faculty of Law professors, together with top international faculty from MIT-Sloan School of Management and expert practitioners. U of T TIME: EVENT: For more information, call 416-978-1400 or visit: http://www.law.utoronto.ca/programs/GPLLM.html Supported by the Association of Corporate Counsel (ACC) - Ontario Chapter and in partnership with Carswell, a Thomson Reuters business. 32 • a u gu st 2013 LLM_IH_Apr_13.indd 1 "You should assume you're going to be a target and get advice about the merits," says Yates. "If you are vulnerable on merits, then you're vulnerable." Be prepared, such as having appropriate document preservation measures. The fact that a class action has been filed doesn't mean there's any merit to the underlying allegations, but there are reputational consequences and this can lead to customer and supplier inquiries. So it's also important to ensure you have the right messaging, says Naudie, to underscore your confidence in your business model. But this puts the defendant in a tough position — if they're not doing anything wrong. While your company may not want to engage with the plaintiff lawyers, says Yates, you also don't want those lawyers to have a mouthpiece to talk about your client in the media. That means some sort of response is usually necessary. In-house counsel in the travel and hospitality industry should recognize they are vulnerable, says Yates, and that increases the chances they're going to be targeted by a class action. They should understand their exposure under Canadian law, make sure their house is in order, and have a team ready to be deployed if needed. "Take any preventative measures — not class action preventative measures, but subject matter prevention measures. Talk to competition lawyers, make sure the way you're doing it is okay," says Yates. Often this isn't part of the daily business of in-house counsel, so it's important to periodically look around and see if the landscape has changed, she says. You may never face a class action, but it's worth the investment to have a conversation about it —  particularly if you're exploring new pricing practices. The travel and hospitality industry in particular is ripe for legal action, considering what's going on in the U.S. For any industry in Canada —  especially one where you're dealing with consumers, and where price is an issue — it's always important to watch the trends, particularly if there's parallel litigation going on in the U.S., says Naudie. "Be mindful that the risk is out there." IH INHOUSE 13-02-26 4:07 PM

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