Canadian Lawyer InHouse

29 MARCH 2017 "In M&A deals, I feel the level of work, which is sometimes around the clock, necessi- tates that we associate ourselves with external counsel. In addition to that, we also fi nance our acquisitions by way of project fi nancing. We often do an M&A acquisition-type deal at the same time that we do fi nancing of the project. So that's double the work so we defi - nitely need to go outside," says Aird. Where he doesn't rely on external coun- sel so much is for what's core to Boralex — the purchase of wind turbines and operating and maintenance services that the various turbine manufacturers provide. "We're pretty hands on for that. We hold the pen on that type of contract," he says. Boralex does a lot of deals outside of Can- ada. "We did a French/U.K. deal in 2016, so now we own projects in Scotland. We are pretty international," Aird says. The company also attempted some deals in the U.S and is keeping its eyes on that market, aided by a U.S. global law fi rm. "In Canada, there are still opportunities, but the whole renewable energy industry is kind of in a 'wait and see' mode because there are not so many provincial programs that have been put forward. Ontario has suspended its long-term plan," he says. "Quebec still has a few opportunities — the government says it's going to launch a program, but we don't see what it is right now. Alberta is new to the game. We're ac- tive there. We just closed an M&A partner- ship with a local developer there," Aird says. Boralex faces a long lead time in deliver- ing any project that can involve objections from environmental and community groups opposed to wind farms. He has been adding lawyers over the years and is hoping to add a more senior po- sition to the team by the end of March. Aird says he is looking for people who have done M&A work in the past and who also have expertise in fi nancing. "We don't do much litigation — we are capital driven. I joined 12.5 years ago and this year we will be 10 lawyers. We've dou- bled every fi ve years." At Montreal-based VIA Rail, Denis Lavoie is director of risks, insurance and claims and all litigation from Halifax to Vancouver. Risk is a major factor for the transportation giant that is looking to stay competitive for the future. "Risk is a new way to see a business," says Lavoie. "If you're an insurance company or big bank, there is a framework there — you must have a chief risk offi cer and you have to have a risk structure in place; but for all the operational companies like VIA, it's up to the board of directors or upper management to decide to go ahead with risk management structure." That's the structure VIA decided to go with three years ago and Lavoie was ap- pointed director of the initiative. Yes, he says, while VIA runs trains at high speed with four million passengers a year, safety is a key risk, but also important is how it manages reputa- tional risk and IP risk, equipment risk — all that can affect a company such as VIA. VIA has six lawyers on the in-house team. On the corporate commercial side, 90 per cent of the transactions are done internally, but litigation matters such as human rights and passenger claims are handled by external counsel by fi rms across Canada with large national fi rms. Over the last few years, to reduce costs, VIA has been using some small boutiques in Toronto and Montreal. In the last two to three years, cyber-risk has become a larger concern. In November, VIA went to the board of directors with a new proposal for cyber-insurance and Lavoie is working on it now with the com- pany's broker, Marsh, and put a new cyber- insurance policy in place. On the prevention side, he is working closely with the IT group to build an infrastructure process to protect against a cyberattack. VIA also has to make sure it is running the business in compliance with regulations for the industry. Lavoie says although VIA is a passenger rail company, the Lac-Mé- gantic rail disaster in 2013 brought a new way of seeing the business of a railway op- erator. It also impacted insurance policies and concerns around safety management. Emerging risk is also a topic of interest for the board of directors. "They are always ask- ing what will be the key risks in the next 12 months or three years for VIA," he says. IH Quebec still has a few opportunities — the government says it's going to launch a program, but we don't see what it is right now. Alberta is new to the game. We're active there. We just closed an M&A partnership with a local developer. SYLVAIN AIRD, general counsel of Boralex Inc. They are always asking what will be the key risks in the next 12 months or three years for VIA. DENIS LAVOIE, VIA Rail

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