Canadian Lawyer InHouse

23 CANADIANLAWYERMAG.COM/INHOUSE NOVEMBER/DECEMBER 2015 but there is no benefi t in overstating your fi ndings. Excess language is not in the com- pany's interest," says the McCarthy's lawyer. In some cases, an oral report might be suffi cient, suggests Robidoux. "It is a live is- sue whether there should be a fully written report. The methodology can be commit- ted to paper so that it shows that all the right questions were asked and the company took appropriate action," she explains. There are certain instances though when it is appropriate to co-operate fully not only with regulators but also with law en- forcement, says Robidoux. She represented Griffi ths Energy when it pleaded guilty in 2013 in the Court of Queen's Bench in Al- berta to having paid $2 million to a diplo- mat's wife to secure oil properties in Chad. The trial judge accepted a joint submissions and the company was fi ned more than $10 million, without any probation order. When new management discovered the wrongdoing, it decided to do a "credible and robust" investigation, says Robidoux. "The company was able to achieve credit by voluntarily disclosing. There was a large fi ne, but its reputation was restored, and the company was praised by law enforcement and the judge," she adds. The company was renamed and purchased outright last year for more than $1.5 billion by a Swiss- based company. In the case of Griffi ths, the voluntary disclosure and co-operation was the right thing for the company to do, says Robidoux. In general, however, "the credit you receive [for co-operation] can be very unpredictable," she notes. Meanwhile, despite the wishes of its former chief executive, the stigma that hangs over SNC-Lavalin is likely to remain, at least as long as the court proceedings continue. One of the other fallouts may be the creation of a growth industry in at least one section of the Canadian legal community — the corporate litigator as international investigator. IH moved quickly to conduct its own investiga- tion. "You don't want to be lagging behind the government, especially in a highly regu- lated environment," says Matheson. "If you sit on your hands, the government or regu- lator will be asking what have you done?" In the case of whistleblowers who allege misconduct within a company, there is a good chance they will have brought forward the complaint at the same time to the rele- vant regulator, says Cobb. It is good practice to let the regulator know as soon as possible about the complaint and that the company in looking into the issue. "They may let you investigate" without starting their own probe right away, Cobb says. For serious situations where there is a parallel investigation by regulators or law enforcement, all the lawyers say there is a delicate line to walk between co-operating to try to reach a good resolution for the client and protecting privileged information. There is not signifi cant case law in this area and, in one ruling earlier in the year, Ontario Superior Court Justice Ian Nord- heimer found that settlement privilege did not apply at the proffer stage of the "immu- nity" or "leniency" program offered by the Competition Bureau. The ruling, part of an ongoing chocolate price-fi xing prosecution, involved companies that provided informa- tion to the bureau in exchange for leniency. In a general sense, says Devereux, if a company is "forthright" with regulators, there might be some "middle ground" as to what is disclosed and could be ultimately made public. "What you don't want is a road map for plaintiffs' lawyers," he says. Regulators don't want the legal advice, "they want the fruits of the [internal] in- vestigation," adds the Norton Rose lawyer. That could be problematic though because sharing even some of the information may be seen as a waiver of privilege. "At the same time, regulators generally want to know that it has been done right," says Devereux. If there is a formal report produced to a board as a result of the investigation, "you should try to establish a privilege fence around the report itself," says Cobb. Even the language and writing style of any investigative report should be carefully con- sidered, in case it is ever made public, says Matheson. "Any fi ndings must be well sup- ported. You should be factual and accurate, '' '' You can't ask questions the same way you would in Calgary. If you ask anyone if they pay bribes, they are going to say no. But if you ask about speeding up the bureaucracy, you may receive a more complete answer. KRISTINE ROBIDOUX, Gowling Lafl eur Henderson LLP client and protecting privileged Ontario Superior Court Justice Ian Nord- heimer found that settlement privilege did not apply at the proffer stage of the "immu- nity" or "leniency" program offered by the Competition Bureau. The ruling, part of an ongoing chocolate price-fi xing prosecution, involved companies that provided informa- tion to the bureau in exchange for leniency. In a general sense, says Devereux, if a '' they are going to say no. But if you ask about speeding up the bureaucracy, you may receive a more complete answer. KRISTINE ROBIDOUX, Gowling Lafl eur Henderson LLP

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