Canadian Lawyer InHouse

7 canadianlawyermag.com/inhouse April 2015 A roundup of legal department news and trends found out there has been a data breach with- in your organization but nobody knows yet. . . . The natural inclination beyond burying your head in the sand and hoping the crisis will pass is to want to get your ducks in order before you tell people about it. Make sure you have a good answer when you finally do communicate," says Ratchford. The problem is that later, any delay in communicating will look like deception — especially with data-breach cases, he said. Ratchford notes there are two categories of risk posed by social media, both of which can escalate in a crisis — inappropriate use and failure to engage. "You're better to go out early than to wait," he said. Social media also provides the oppor- tunity to monitor stories as they break. By identifying keywords and hashtags, execu- tive names etc., and you can monitor us- ing paid or unpaid services such as Google alerts, Twitter alerts, Social Mention, or Naymz. But social media itself is not a strategy — it's a tool. Two major uses for social media include monitoring and engagement. "In terms of responding appropriately, I do think it is appropriate for legal advis- ers to help with vetting social media. We certainly expect our legal advisers to vet press releases and others to do fact check- ing, all the more necessary if you're trying to reduce an issue to 140 characters," says Ratchford. They can also review and approve a set of acceptable posts, review possible responses, and ensure the right spokespeople are acting (and not others). They can also identify poten- tial crisis situations and formulate potential so- cial media strategies and rules of engagement. When it comes to formulating a social media policy, Ratchford says some elements should include: • List the sites/accounts and names being used; • Indicate that employees who engage in social media are not authorized to post the organization's position on a matter; • Provide links or contact details for addi- tional information; • Outline appropriate use guidelines; • Disclaim responsibility for or endorse- ment of linked items; • Claim copyright; and, • Indicate that posts are not authoritative. "There's also a need in crisis communica- tions and social media to measure and weigh properly — usually when an organization is facing a crisis they search #ABC company and it gives you a picture of those tweeting about you," he said. "You want to regularly be searching the name of your organization but also names of your board of directors, executives, competitors, related subjects." In the case of the AirAsia crash last year, Ratchford said in the first two weeks follow- ing the loss of the aircraft, CEO Tony Fer- nandes put out 75 tweets and was largely in front of the story. "He confirmed loss of contact with the airline, he said a statement was coming and a few hours later posted a statement to his Twitter account, then stated how he was on his way to talk to the families, then said his thoughts were with family and crew. He's been lauded with having responded much more effectively than Malaysia Airlines," said Ratchford. Jane Burton, legal counsel for the City of Brampton cited the ice storm of 2014 and the way in which Toronto Hydro CEO An- thony Haines was out speaking to the media regularly and onsite during the cleanup as an example of good crisis management. "He did 25 media interviews during the ice storm," says Burton. Todd Burke, national leader of the crisis management practice group with Gowling Lafleur Henderson LLP, said when deter- mining who should be on a crisis communi- cations team, consider the following: • top executives; • audit function; • public relations; • legal counsel; • emergency management (depending on the incident); and, • operations personnel. Anyone on that team should be media trained, credible, believable, and authentic. Finally, Burton says it is critical to "plan, train, and test" for crisis management. "Once you have identified the risks you need to formulate a plan," she said. A Federal Court of Appeal decision eight months in the making is being called a "monumental decision" that "essentially overturns almost 40 years of arbitral law." In Wilson v. Atomic Energy of Canada Ltd. the Federal Court of Appeal held that feder- ally regulated employers may dismiss em- ployees without cause. The general consen- sus previously was that employees governed by the Canada Labour Code could only be terminated for just cause. The decision is being viewed as a "vic- tory" for federally regulated employers such as banks, telecommunications companies, and air and marine transportation organiza- tions, says Ronald Snyder, a partner at Fogler Rubinoff LLP in Ottawa who represented Atomic Energy of Canada Ltd. in the case. "It is transformational in that employers will now have the necessary flexibility," he says. "I've always held the view that there is no issue that's more fundamental, more sig- nificant that goes to the core of the employer/ employee relationships than the right to hire and fire." George Vuicic, a partner at Hicks Morley Hamilton Stewart Storie LLP in Ottawa, says the decision finally resolves "a long-standing divergence in the case law in this area." "The Federal Court and now the Federal Court of Appeal have, I think, conclusively determined this issue. Justice [David] Stratas said in his own words: 'The court needs to be a tie-breaker on this issue' and that's what the decision is," says Vuicic. The biggest issue, says Vuicic, is whether Wilson will seek leave to the Supreme Court of Canada. "If it goes to the Supreme Court, it could 'Game-changing' decision on federally regulated employees

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