Stikeman Elliott: New Millennium, New Paradigms Volume 2 9780773588110

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stikeman elliott New Millennium, New Paradigms

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Stikeman Elliott New Millennium, New Paradigms

r i c h a r d w. p o u n d

mcgill-queen’s university press Montreal & Kingston • London • Ithaca

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© Richard W. Pound 2012 isbn 978-0-7735-4122-1 Legal deposit fourth quarter 2012 Bibliothèque nationale du Québec Printed in Canada on acid-free paper McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Canada Book Fund for our publishing activities.

Library and Archives Canada Cataloguing in Publication Pound, Richard W. Stikeman Elliott : new millennium, new paradigms / Richard W. Pound. Includes index. isbn 978-0-7735-4122-1 1. Stikeman, Elliott (Firm) – History. 2. Law firms – Canada–History. I. Title. ke395.p683 2012

340.06'071

kf345.z9.a1p683 2012

c2012-905482-8

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Contents

Illustrations following pages 50 and 178 Foreword by Pierre A. Raymond

vii

Preface

xi

1

New Beginnings

3

2

Global Activity

10

3

Toronto – At the Centre of the Canadian Business Universe

26

4

The Rest of the Family

46

5

Some Transactions of a Transactional Firm

92

6

Dressed in Our Bibs and Gowns

140

7

The Sum of the Parts …

171

8

Big Firm Management

198

9

Challenges, Diversity, and Social Responsibility

226

Epilogue as Prologue

260

10

appendices a

Partners of the Firm as of February 1, 2012

269

b

Associates with the Firm as of February 1, 2012

273

c

Law Clerks and Staff Members with the Firm as of February 1, 2012

278

Index

289

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Foreword

When Richard Pound expressed his willingness to do an “encore” or, more precisely a “suite” to Stikeman Elliott: The First Fifty Years, I was once again proud of the resolve of a Stikeman Elliott partner to take on a formidable task with determination. Through its narrative of what people in the firm had done and what the firm had achieved in its first half century, The First Fifty Years depicted who we were and from whence we came. This account of the following decade shows a seamless continuity with the values and culture that our founders, and those who supported them, crafted and articulated so well during that initial period. Much of the content of this second volume revolves around the internal evolution of the firm, but many of the events and episodes it describes reflect and have been influenced by what has happened in, and to, Canada and the world at large and, more important, to our clients. We have lived through a decade in which the external focus of the legal “industry” has been on client service, while its internal focus has been on people. More than ever, in a period where competition for work and talent has never been fiercer, relationships with clients and lawyers have been at the heart of the firm’s continued success. This book provides evidence of both such focuses. The last ten years have seen the beginnings of fundamental changes in the way we render our services, the way in which our clients perceive the legal profession, and even the nature of legal services. While it is too early to fully understand how deeply these changes will affect the profession, there can be little doubt that the effects are likely to be profound. The legal industry will no longer be able to live in its own bubble, sheltered from the headwinds that every other industry has faced, and will be forced, year after year after year, to become more innovative, efficient, and cost effective. The difficult economic times of these recent years have also provided significant challenges to the legal industry. This notwithstanding, the pages

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which follow demonstrate that the firm is stronger and its place in the market more enviable than was the case ten years ago. We believe that today, more than ever before, we have “the right people on the bus,” not only because of their talent and entrepreneurship but because they understand the often elusive concept of value and have figured out how to provide it to our clients in the course of their everyday work. They recognize that providing value goes far beyond merely a job well done. Clients are now entitled to expect that knowledge and experience developed in one city can and will be transmitted instantly to all the lawyers of a firm. This is why, as you will read, knowledge management has become an important part of our strategy in achieving our goal of becoming the most-retained Canadian law firm for high-end mandates involving Canada. Efficiency and project management have become new buzzwords in our industry. It will come as no surprise, therefore, to read that we have made significant advances in the sophistication of our firm management systems, particularly in areas such as accounting, technology, and profit analysis. I have been moved, especially over the last ten years as I have become more deeply involved in the management of the firm, by the extremely high level of commitment of all of the people on our team, from every strata and office. There is no question that it is that commitment, demonstrated day in and day out, that has led to our firm being so often recognized as one of the top employers of choice in Canada, and to our leadership in the areas of knowledge management, technology utilization, and social responsibility. During the last decade, globalization has penetrated every aspect of daily life in communications, trade, economics, and politics. Many English and American law firms have embarked on a road intended to lead them to a global footprint. Others have decided to concentrate on fewer locations in which they can excel. Most of the larger Canadian law firms, among them Stikeman Elliott, have opted for this second model. Having made this strategic decision, we have established numerous “country initiatives” through which we aggressively and successfully seek inbound Canadian work. By doing so, we have continued the ambitions of our founders to serve the interests of any foreign national seeking to invest in Canada. This same period has seen business moving to conduct its affairs in an increasingly socially responsible manner. This trend also applies to the business of law and we have embraced it with great enthusiasm. We expect the trend to accelerate in the years to come and expect to remain in the vanguard of such progress. The concept of success in a “steady state” universe has been buried forever. Not only is change an omnipresent fact of daily life but the velocity of change is constantly increasing. The legal profession, like every other paradigm, must adapt to this reality. From my perspective as chairman of the

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firm, the critical element in the success of a law firm in the next ten years will be the ability of its management to make continuing change a positive, invigorating, and fulfilling element of the firm’s culture and governance, not just accepting change, but welcoming it and using it to make ourselves better at what we do. These pages demonstrate that our next generation of leaders embraces change, as did our founders and the succeeding generation, as well as the values that have led us to our collective achievements over the course of our first sixty fulfilling years. I wish to use this opportunity to express to Dick Pound, on behalf of the entire Stikeman Elliott family, our sincere appreciation for this monumental task, yet again on this second occasion, of recording our voyage. Pierre A. Raymond Chair/Président du conseil Montreal, July 2012

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Preface

To people who ask why anyone might have the faintest interest in the history of a Canadian law firm, the answer is twofold. First, those who have been part of the history will enjoy the opportunity to see a candid perspective on what they have accomplished. Few, even among those involved, will be familiar with all the many elements of the entire experience and a history gives them an opportunity to appreciate the whole of which they were part. Second, the involvement of the firm and its members in the fabric of national events, transactions, and litigation is part of the history of our country and deserves to be identified for posterity. Stikeman Elliott and its lawyers have acted professionally on a huge number of important Canadian and international mandates and have been active in educational, social, and charitable organizations in Canada and throughout the world. Given the confidential nature of communications between lawyers and their clients, there are obvious limitations on what may be disclosed, but many – more than enough to fill any book – of the outcomes of the firm’s activities have been publicly disclosed and can be recounted without any breaches of the duty of confidentiality This is a companion volume to Stikeman Elliott: The First Fifty Years, published on the occasion of the firm’s fiftieth anniversary in 2002. We have now reached our sixtieth anniversary. The intervening years have been filled with accomplishments, the occasional misstep, the loss of a number of partners, far too early, and the uncertainties arising from the most severe economic relapse since the Great Depression of the 1920s and 1930s. There is history for the telling. A history of the firm is something Heward Stikeman would have liked. He was, despite his energy and boundless enthusiasm, reflective and always had an interest in what had come before as a guide to what might come next. Although he died even before the first volume was published, he, with his intellect, integrity, and relentless optimism, remains a constant

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spiritual foundation for the firm, especially in uncertain times. On the other hand, his partner, Fraser Elliott, had little, if any, interest in history. He was a hopeless interview for the first history, did not keep records, and was not at all inclined to focus on what had happened but only on where he and the firm were going in the future. History, however, is often shaped by those who have no particular interest in it, and Elliott had a huge influence on the shaping of the firm’s history. As the third generation of the firm takes over leading it forward, with the fourth in ascendancy, the future of the firm will depend on the same healthy symbiosis of optimism and calculation that marked its beginning. This volume is dedicated, therefore, primarily to those celebrating the sixtieth anniversary of the firm, many of whom might confess to a bit of surprise at how far they have come and how quickly, but who have come to understand what is required to be successful in today’s practice of law. We are happy to share our story with those who have made it possible, namely our clients, who have given us their confidence, as well as with those who have an analytical or historical interest in the elements that have produced such a successful outcome. Like many others, we have wrestled with the increasing complexity of managing a law firm that is now far larger and more extensive than could have been imagined at the outset, in large measure due to the need to maintain the confidentiality of vast amounts of information. There has been an extraordinary volume of transactional work, impossible to describe in a single work of this nature, but some examples and a few outlines provide a brief sense of the extent and importance of the transactions involved. No business law firm can claim the right to that description unless it has a well-developed capacity to handle sophisticated commercial litigation, especially in an age that has seen the creeping Americanization of such litigation in Canada, and the last decade has been important in our development of a high level of expertise in this area. We have responded to the demands of the phenomenon of globalization, significantly altering our original model for attacking international markets and attracting those bringing inbound investment into Canada. The different cultures of our various offices provide their own insights and approaches to a single economic unit. As well, there are, in the life of any firm, less serious moments and the anecdotes recounted may help to shed light on some of those who provide the personal glue that holds us together in a single firm. The future has never been less clear. We recognize that there remain challenges ahead of us but approach those challenges as positive opportunities to do things in a better way than ever before. Without wearing rose-coloured glasses, we remain optimistic, as would Heward Stikeman and Fraser Elliott, that we are well placed to emerge even stronger than we are today.

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It has been my good fortune to have been continuously involved with the firm for more than forty years and to have participated to some degree in its growth and had the immense enjoyment of working with an extraordinary collection of talented and ambitious individuals. It has been an immensely satisfying intellectual environment, in which the constant focus has always been on finding solutions for the needs of our clients. I would not have had it any other way. Montreal, July 2012

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stikeman elliott New Millennium, New Paradigms

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chapter 1

New Beginnings

Ten years ago, when writing about the first fifty years of Stikeman Elliott, it was relatively easy to start at its beginning and to follow the progress of the main characters and their enterprise over time, even if the story covered a period of fifty years. It has been much more difficult to start at the end of sixty remarkable years and to pick out the incremental changes since the first fifty. The volume of people, the number and complexity of transactions, the variety of litigation involved, have all become far greater than in earlier years. The nature of the work and the profile of the firm are quite different from what they were at the start, and even at the end, of the first fifty years. Even from its inception, however, the firm exerted some influence within the legal world, mainly in Canada but, unusual for a small firm in a country with relatively small population, it also had a presence on the international scene, due almost entirely to the personal influence and activities of Heward Stikeman and Fraser Elliott. The challenge in this second volume is to provide a sense of the increasing flow of important legal mandates dealt with by the firm, many of which are of national and international importance, to describe the radically different circumstances in which the firm operates, and to assess the impact of the firm on the communities – business and social – that it serves. This volume is, therefore, necessarily a collection of snapshots. However, every transaction, every case, every response to changing circumstances with which the firm has been involved, whether described or not, has its own story and was driven by a strategic plan or was a strategic response to particular conditions. It is not feasible to describe these events and activities at the same level of detail as was possible in the earlier work, particularly since in the earlier recounting of the firm history many of the matters had long been fully settled, whereas some of the events and transactions described in this work are still ongoing and may reflect strategies

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still in the course of development. Thus, not only are there restrictions on the number of matters to be described, there is the appropriateness of describing factors that may still be in play. ❖

February 2002 was much more comfortable for the firm of Stikeman Elliott, then embarking on the second half century of its existence, than February 1952 had been for Heward Stikeman and Fraser Elliott. When they began, it had been a couple of upstart Montreal lawyers and a few acolytes setting off on their own, hoping to launch a new model of a law firm based on non-traditional specialization in the emerging fields of income tax and corporate law. Montreal was then the principal business centre of Canada, filled with establishment law firms, all united in the common wish that these interlopers not enjoy the slightest success. Fifty years later only Elliott was still there to witness the beginning of the second half century, which saw hundreds of Stikeman Elliott lawyers spread across Canada and established on both sides of the Atlantic and Pacific Oceans and in New York. The firm had clawed its way into the top echelon of Canadian law firms and was poised to become one of the leading business law firms in the country. The second generation of leaders was, by now, much more confident, no longer a bunch of brash thirty year olds, and had a much better understanding of how to run a complex law firm. The third generation was emerging behind the second, with zest for the idea of becoming the Number One firm. The economic centre of Canada was, by 2002, undeniably Toronto. Montreal had weathered much of the long drought resulting from political uncertainties and the departure of many of its head offices and was fighting its way back, but the financial arrow had definitely left the bow and it was to Toronto that businesses came for access to the capital they required. Montreal had become our Boston, and Toronto our New York. The west had emerged from its doldrums on the back of dramatically higher prices for oil and natural gas and was competing for its share of big business. These were exciting and turbulent times, exactly the conditions in which Heward Stikeman always said we thrived. At the start of its sixth decade, the firm had momentum. The confident mood was fully justified by the firm’s evident success in the Canadian market for legal services and its significant inroads into a number of foreign markets. While the firm had had its share of growing pains, one of its chief characteristics was that it was largely home-grown, generating its momentum from a single culture, spiced with occasional strategic lateral hires, in which everyone was committed to building the best law firm in Canada. It was established in the principal cities in Canada, growing from its original base in Montreal, spreading to Toronto, Ottawa,

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Vancouver, and Calgary. The smaller offices, especially London, were well known in their communities, and included New York, Hong Kong, and, to a somewhat lesser degree, Sydney, Australia. Although the more recent times have been different, as have potential obstacles to success, the firm has remained conscious of what it was like to be new and different. It remains aware of experiences from the beginning of the firm and examples of the extraordinary quality of its early leadership. All this was absorbed by the second generation, each of whom knew those leaders, and each generation of leaders has been successful in passing on the legal dna and essential spirit of adventure to the next. The appropriate metaphor for the beginning of the firm’s voyage in 1952 was that of a canoe paddled by legal voyageurs, heading into uncharted waters, hoping that their delicate craft would not be swamped by an unexpected tempest. The current equivalent would be that of a modern, well-armed, cruiser capable of high speeds and the tactical application of a broad range of sophisticated legal services, directed by an experienced and well-trained crew of lawyers, paralegals, and professional staff, capable of landing in significant force on any legal shore. The management requirements of the metaphoric vessels are, however, profoundly different. In the early years of the firm, it was Elliott, with his keen business acumen, who managed the cash flow, dictated the size of the firm, and ensured that there was always enough in reserve for a rainy day. The latter was accomplished by his insistence on approving all invoices sent out in the last three months of the fiscal year. Once the firm had reached what he considered to be a sufficient level of income for the current year, he simply put all the other invoices in his drawer until the beginning of the following year, when he would “find” them and permit the lawyers to send them, thus ensuring that the firm always had something in the pipeline. Such a model is of course no longer possible in a large national and international law firm and Elliott himself was always at the forefront in supporting the adoption of more organized and structured management processes, including investment of sufficient capital by the partners of the firm to enable the distribution of all billed income during or shortly after the end of each fiscal year. For many years the firm’s mother ship had been the Montreal office, with its status as the founding office. The shift of the centre of gravity toward Toronto began when Fraser Elliott moved there and was accelerated by the destabilizing political developments in Quebec and the westward haemorrhage of many of its corporate head offices. Even corporations that did not, for a variety of reasons, formally change their head offices had their main operations de facto in Toronto or, like Canadian Pacific Railways, in Calgary. Any observer comparing the “headquarters” buildings of the Royal Bank of Canada in Montreal and Toronto or the principal offices of the

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Bank of Montreal in both cities could labour under no doubt that, wherever the statutory head offices might be, their businesses were now centred in Toronto. Montreal has had an unfortunate record of failing to maintain its status as a political or business capital. Its political position was shattered when the Parliament buildings in Montreal were burnt to the ground in 1849 during the course of a violent protest by the largely English business community against the controversial, but validly adopted, Rebellion Losses Bill and the willingness of the governor general, Lord Elgin, to sign that legislation into force. Despite that destruction and subsequent movement of the political capital, however, the business community prospered and much of the economic growth of the country began or was directed from Montreal, but the political uncertainties of the latter part of the twentieth century had the same effect on its importance as a business capital, with an equally drastic long-term result. By the end of fifty years of existence, and even more so at the end of sixty, the organization and management principles may not have been appreciably different from what they were at the beginning but the manner in which, as a large business, the firm is organized and run is quite different from those same activities in a small business. In addition, a business in 2012 faces quite different issues than in 1952. Then Canada was in a period of post–Second World War materialism, dealing with absorbing men returning from the armed forces and the beginnings of a consumer mentality that had not existed since before the Great Depression in the 1930s. There were virtually no women in the professional workforce. Nor could the firm continue to operate solely as a series of loosely connected small businesses, despite the fact that some elements of small and competing businesses still existed. It now required concerted and interdependent action in order to obtain and service major clients and the development of new initiatives. The firm, in its modern iteration, has been forced to deal with certain realities. Canada, although geographically huge, is nevertheless a small country in terms of population. It has always suffered from a shortage of its own capital and has had to look elsewhere for finance or attract those with capital to the country in order to develop. It is a country that enjoys abundant natural resources, especially oil, gas, hydroelectric, and other power and mineral deposits of interest both domestically and internationally. From time to time, there tends to be a convulsion or reaction against the foreign capital that has been so assiduously courted, resulting in political posturing and even the adoption of legislation that attempts to limit such investment or to seek better terms for it. The Foreign Investment Review Act and the Investment Canada Act are prime examples of this, as was the National Energy Program, which did more to increase western alienation in Canada than any other single action in the history of the federal government.

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Canada has the cultural asset of and cultural tensions arising from vigorous English and French-speaking communities, together with healthy additions of many others, but assumes an economic burden as part of the cost of maintaining its multicultural status. The geographic configuration of the country is, to say the least, difficult, with ninety per cent of its population living in a thin band within a few hundred kilometers of the border with the United States. From the perspective of a firm offering legal services, domestic work must be shared with other law firms in a welllawyered country. In addition to existing domestic work, there is a need to attract inbound work from other countries and, wherever possible, to shepherd outbound work. Given the relative size of Canadian capital markets, it is clear that inbound work will necessarily be much more significant than outbound. For Stikeman Elliott, the organizational model required to respond to these many realities has been to focus on business law and, wherever possible, on high-end work within that specialty. This has required the development of specialties and practice groups, together with the need to create and grow such specialties. The corollary to attracting such work has been a decision, dating back to the late 1990s, to try to avoid low-end and routine work. Such work is not interesting to professionals focusing on sophisticated work and, because it is largely commoditized, it also becomes a remunerative drag on the financial results and profitability of the firm. There are many bright and talented lawyers who have come to Stikeman Elliott because we do high-end work, are known to do it, and are recognized as the leaders in the field. If they do not get the chance they were seeking when they chose the firm – it is not as if they were throwing random darts at a list of law firms – they will not stay and will go to where the work they sought is being done. On the other hand, as an independent Canadian law firm, Stikeman Elliott has had to recognize that one of the effects of globalization is to reduce more and more legal work to the status of a commodity, which means major adjustments will be required. The “bet-the-farm” mandates have become thinner and thinner, leading to increased competition for a smaller and smaller pie. The firm has done well in this environment because it has the best bench strength to perform this kind of work and has been not only willing to compete for the mandates but also quite successful in doing so. One of the developments in the past ten years has been a consolidation of the firm’s reputation as a leading, if not the leading, provider of sophisticated legal services for the business community. We also had to reassess the previous global strategy. It was increasingly clear that the existing model was not effective. The outcome of the reassessment, discussed in chapter 2, led us to build on the networks that had resulted from previous foreign initiatives, to stay present, but small, in two major international centres, New York and London, and to go prospecting

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in other markets for inbound Canada work. We revised our view of the firm and determined that it was no longer appropriate to purport to be Canada’s global law firm but that we should be the best Canadian business law firm. We focused on the need to attract and retain talent. One element of this was to seek out lawyers who had “names” in areas in which the firm did not have particular talents, knowing that they in turn would attract both additional business and desirable recruits. We knew that we would have to become more efficient in our use of lawyers, more systematic in the way in which we approach all aspects of the practice, and more effective in our use of increasingly talented non-lawyer staff. We continued to embrace technology as a means of making ourselves more responsive and instituted a systematic approach to marketing and business development. And we began an increased focus on knowledge management, making the previous experience of the firm readily available and easily accessible to lawyers encountering similar challenges. The firm has always been a single-tier partnership, in which all partners have equal status as partners, although sharing of profits is not equal. Every partner has access to all financial and other information, including the share of each partner in the partnership income. We have never adopted the principle of lockstep, in which partners at each level get the same income as others of their generation or seniority. Each partner’s share is determined on the basis of his or her contribution to the firm, based mainly, but not exclusively, on financial contribution. Similarly, we have eschewed, to date, the notion of a two-tiered partnership, in which there is a differentiation between classes of partners, so-called equity partners and non-equity partners. The firm has considered the possibility of such an arrangement on a number of occasions, but, for the moment, has decided that the current one-class and fully transparent partnership is more appropriate and more in keeping with the culture of the firm. canadian icons Stikeman Elliott has had remarkable opportunities for involvement in transactions dealing with many of the most important Canadian institutions of our time. We have been involved with Air Canada from the days it was a Crown corporation, helping it to go public, providing business and tax advice, fighting-off a hostile take-over bid, seeing it through intensive litigation, assisting in the restructuring of the business when it was forced into seeking protection under the Companies’ Creditor’s Arrangement Act. Several people from the firm have been recruited by the company, including Calin Rovinescu as president. We assisted Canadian National Railways, also formerly a Crown corporation, in its transition to a publicly traded company and in structuring and obtaining financing to enable it to

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become one of the most successful railway companies in North America. We were involved as Canadian counsel in the acquisition of the iconic hotels once owned by the Canadian Pacific Railway Company and later grouped as Fairmont Hotels. These were acquired by Prince Al Whalid from Saudi Arabia, who, fortunately, holds the view that hotel properties are good investments and has contributed significantly to their maintenance and improvement. Subsequently, he also acquired the largely Canadian Four Seasons Hotel chain. As most observers understand, the hotel business model has changed greatly in the last several decades, such that there is no longer an owner/operator of major hotels but instead an owner of the hotel property and a separate operating organization that runs the hotel business and is not necessarily connected with ownership of the underlying assets. We were engaged in the enormous project by which bce Inc. might have gone private, which failed to be completed when the independent public accountants who were required to give a solvency opinion were not prepared to issue the necessary opinion (as a result of the significant additional debt that would have been generated had the transaction proceeded). Along the way we planned and assisted in the spin-off of the famous Yellow Pages telephone directory business that was later turned into one of the many income funds in the financial markets. We acted for Potash Corporation of Saskatchewan, Inc. in the contested take-over bid. Many of these transactions are discussed elsewhere in this volume and are mentioned here simply to give some indication of the importance of the firm within the context of major Canadian transactions. From a legal perspective, whether the firm is acting for a buyer or a seller is immaterial. There is no moral high ground or opprobrium arising from being on the side of a buyer or a seller. A buyer gives valuable consideration for whatever it acquires and a seller, wishing to monetize assets, is generally free to do so, regardless of the particular nationality of a purchaser. There are, of course, circumstances and industries in which there may be government policy involved that could prevent or limit acquisitions made by foreigners. The Potash transaction was an example, in which the government intervened to prevent the sale, and certain key industries have share limitations or thresholds relating to non-resident ownership. Stikeman Elliott entered its second half century facing a far more complicated and interconnected society in which to manoeuvre, but a more exciting one.

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chapter 2

Global Activity

Globalization of the practice of law has become an inescapable fact of life. The concept was not foreign to Stikeman Elliott, which had been among the Canadian pioneers of international practice, going back to the precocious opening of an office in London in 1969, when the firm consisted of fewer than two dozen lawyers and was based solely in Montreal. In fact, one of the distinguishing features of Stikeman Elliott, apart from its general policies of growing from within and never merging with another firm, has been its network of foreign offices in the United States, Europe, and in the Asia-Pacific region. But now there are huge English and United States firms, with lawyers numbering in the high hundreds and even thousands of lawyers, occupying the field. Canada had been relatively sheltered from such expansion until early in 2010, with the arrival of Norton Rose, shopping for one or more Canadian firms. We had, in relatively short order, established (in addition to London and Hong Kong) a string of small offices outside Canada, in Budapest, Prague, Kiev, Sofia, Singapore, Paris, Washington, and Sydney. Much of the detail of the work and staffing of these offices is described in the earlier companion volume. They were exciting times, especially for those who worked abroad, whether permanently or temporarily, in other, even more exotic locations. They were dubbed the “road warriors” and enjoyed (or endured) some extraordinary experiences. But the model was flawed and could not be maintained. The Budapest and Prague offices, as well as the more ephemeral Eastern European offices, had been opened after the fall of the Berlin wall and the disintegration of the former Soviet Union, when many countries were attempting to work their way out of the economic impact of the Communist regime. The need for capital led them to consider privatization of certain state-owned enterprises, such as utilities and transportation. The firm had

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major experience in such privatizations as a result of work done on behalf of Air Canada and Canadian National and was able to take advantage of that expertise. The volume of that work declined, however, and the commercial work related to such countries was insufficient to justify maintaining offices there. The combination of the difficulty of quality and cost control, financial and reputational risk, and the inability to be certain that the right people from the Canadian offices would be willing to move abroad led to the decision to close the offices. It took longer to decide to close the Hong Kong office, but it was increasingly evident that it was not performing at an acceptable level, was no longer meeting either our own needs or those of our Hong Kong-based clients, and that we had difficulty persuading talented partners based in Canada to move to Hong Kong. After a couple of false starts, the office was closed in 2004. Fortunately, Brian Hansen has maintained an active “presence” in Hong Kong and retains the goodwill he established while on the spot. Singapore was closed because, although it is an important financial centre, it was even farther away and had been badly affected by the Asian financial meltdown in the late 1990s. That left only London, New York, and, after Hansen decided to move to Sydney, the resulting Sydney office. The retrenchments did not mean that the firm had abandoned the idea of foreign involvement, simply that it had decided it would be less expensive and more effective to target specific countries, such as China, India, and Germany, and regions, such as Latin America and the Middle East, from a Canadian base. As a result, despite its withdrawal from some of the foreign countries, the firm is now considerably more active on the international front than ever before and has a much more coordinated strategic approach to the foreign markets. The challenges of dealing with globalization are complex, even in such a restricted area as legal services. There are very few Canadian businesses that are truly global and no Canadian law firm can make such a general claim. On the other hand, there are many global aspects to the business carried on by Canadians and many intersections between Canada and foreign businesses. The challenge is how to define the global aspects of a firm that tries to position itself at the top of the Canadian pyramid in the provision of legal services. One of the first issues that had to be analyzed was what globalization meant, both in general and from the perspective of a Canadian law firm. There were evidently two possible models, the first that of being on the spot and doing the work in a variety of local jurisdictions and the second focusing principally on getting an attractive share of inbound work to Canada from abroad. We had, as indicated, dabbled for many years with the first alternative. The problem was (using a particularly Canadian anal-

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ogy) that this had become not unlike a trap line, with small outposts a long way from the main centres of the firm’s activity. There was a growing realization that this model would not be sustainable for the future. A disproportionate share of the firm’s foreign-based income has come about as a result of Canada’s proximity to the United States and referrals from firms in that country for inbound work. While pleasing in one respect, namely that the firm was widely recognized as capable and responsive, it meant that a great many of our foreign eggs were in one basket. We were leery of following Mark Twain’s formula of “put all your eggs in one basket – and watch that basket!” tending instead to favour the Aesopian view. At the same time, we now knew that the series of outpost offices we had (or once had) was not the right long-term solution to increasing our international diversification. At the time of our fiftieth anniversary, the vast majority of cross-border work involved the United States, not a surprising statistic in itself, given the volume of trade between the two countries, but since then the business base has expanded to become much more global. Lawyers such as John Leopold in Montreal, formerly almost exclusively connected with US business, have broadened their reach into the markets in London, Germany, the Middle East, and the Orient. In doing so, they discovered that the firm had a good name and was generally well received, but it became increasingly clear that a disciplined approach would be required to achieve any significant penetration. Establishing a presence did not require that there be an office as a fixed place of business, since sophisticated clients hire talented people, not offices. Attention turned, therefore, to the different model of attacking foreign markets from the home base. Instead of local offices struggling on, far from the centre of the firm and often victims of the out-of-sight, out-of-mind syndrome, leading lawyers from the major practice groups in the larger offices identified particular high-potential markets, developed strategies for marketing our expertise, focused on leading law firms, other professionals, and potential clients in those markets, and began a regular program of promotional visits. Key to this program was a commitment to continuous activity in the various markets. Personnel change in all organizations and a single visit is seldom sufficient to create the necessary awareness or share-of-mind that would lead to considering the firm for major transactions. More important, the involvement of senior lawyers and partners was a demonstration of how seriously we considered the market and the contacts we made. All lawyers with an interest in a particular area were encouraged to join in the expansion into new markets and the partnership board made it clear that global initiatives were an important element of the firm’s overall strategy.

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china From a western perspective, Napoleon may well have been right when he urged that China be allowed to continue to sleep. But Napoleon is dead and China is very much awake. China today is not the passive and backward country of the Imperial era, nor the struggling and desperate republic of Mao in the aftermath of the Second World War. It is now much developed and is wrestling with some, but not all, of the consequences of prosperity, the communications revolution, and its emerging role as a world, rather than merely a regional, power. It certainly intended to prove a point when it hosted the Olympic Games in 2008, demonstrating that it was a genuine player on the world stage, capable of constructing sophisticated facilities and managing the logistical and ceremonial aspects of the Games with unprecedented skill. Its development over the past quarter of a century has been nothing short of remarkable. The skyline in Shanghai changes practically on a monthly basis and Chinese business activity, particularly in the exportation of goods, has been transformative of both its own and the world’s economies. Countries and businesses all over the world were jumping on the China bandwagon, ready to give up many commercial advantages to the Chinese in order to have access to what was viewed as a virtually limitless, if difficult, market. As a business law firm in Canada, we have seen China emerging as an economic as well as a political power. We have identified the needs that China will have for oil and gas, minerals, power, coal, and food and have concluded that Canada will be an obvious source as part of any Chinese strategic plan. It is equally obvious that China has interests in continents other than North America, including Africa and South America. Like anyone else active in Africa, for example, we have encountered a significant Chinese presence there over a period of many years. The firm already has expertise in all of the aspects of Canadian business that may attract Chinese attention. We have what the Chinese will need if they are going to come into Canada, including the advantage of location on the Pacific Coast in Vancouver and in the major oil and gas area in Calgary. One of our challenges is to be sure that Chinese businesses and state-owned organizations are aware of our expertise, and this has led to the formation, as one of many similar groups, of the China interest group. We have the further advantage of having acted for the Li Ka-shing group in both real estate development activities and the oil and gas business. We are also located in a country that, in general, exhibits less suspicion regarding China and Chinese involvement than, for example, in the United States. Doing business in China or with Chinese interests has more than its share of difficulties, linguistic, structural, and cultural. There was, for instance,

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a relatively steep learning curve for the Chinese in understanding the importance of enforceable contracts for purposes of dealing with the western world, particularly when financial institutions are involved. The struggle for understanding works in both directions. Those in the western world have a tendency to think that the world is less diverse than it really is. English is certainly established as the lingua franca of international business, but many of the concepts easily comprehended in English have no equivalents in foreign languages, including Chinese. This leads to a need for considerable patience and an understanding that the gaps cannot be bridged simply by speaking louder in English. These difficulties are exacerbated in competition for resources, whether the resources themselves or the investment vehicles that own the resources, and the pace of business and of negotiations has had to be accelerated dramatically on the Chinese side or there was considerable risk (as happened on several occasions in our experience) of their losing opportunities because, wrestling with unfamiliar concepts and business structures, they were too slow to react. The firm had always had an interest in China, going back to the 1980s, when we had a program of inviting Chinese lawyers, many of whom were attached to China Global Law Office and the China Council for the Promotion of International Trade. These lawyers needed more exposure to the significantly different standards of contractual drafting and performance than they could obtain within China. As China began to extend its reach and interests abroad, we engaged a former Canadian ambassador to China, Harold Balloch, for two years, 2005–06, to help us develop a more concerted approach to the Chinese market. This led to the development, beginning in November 2007, of the firm’s China initiative, with a focus on bringing work from China to Canada. Central to this strategy was building the firm’s profile and relationships with organizations in the People’s Republic of China, with international law firms and Canadian and international investment banks that had a presence in China, and with clients or other contacts in China with whom we already had established relationships. In addition, we looked to a selected number of Chinese state and private enterprises where we were confident that a marketing focus would likely result in retainers. The China strategy was led by Ed Waitzer, Brian Hansen, and David Lefebvre (prior to his departure from the Calgary office) and included Pierre Raymond (Montreal) and Bill Braithwaite and Jay Kellerman (Toronto). Despite the closure of the Hong Kong office, careful consideration was given to the possibility of opening an office in Beijing. It had been clear that it was not possible to try to service the Peoples’ Republic of China (prc) from Hong Kong, even with the special status enjoyed by Hong Kong as part of the prc following the “return” of Hong Kong by the British in 1997. In the end, however, the firm decided not to try to open

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an office in China, but to apply the same model of business development used for the rest of the world. The China interest group now has more than sixty members within the firm. Some of the promotional activities have included business development trips to China, creating a China practice card, which is basically a “brag sheet” describing China-based transactions on which we have worked, and updating and translating material such as Doing Business in Canada, “m&a Activity in Canada,” “Foreign Investment faqs,” the firm profile, and the professional biographies of several partners. We have distributed updated m&a Top 10 cards to more than five hundred China contacts, along with a letter from Raymond inviting them to request a copy of “m&a Activity in Canada.” Kim Alexander-Cook has responded to an invitation from the embassy of the People’s Republic of China in Ottawa to give a presentation to a senior delegation from China’s Ministry of Commerce Anti-monopoly Bureau about substantive and procedural issues in Canadian merger review. We have mailed the Canadian Regulatory Restraints summary to Asia-Pacific contacts and advertised in the Canada Report, with simultaneous advertising in China Daily and International Business Daily. We translated “Investment in Canada – Regulatory Update” into Chinese and sent it to the firm’s China contacts, along with our China practice card, and we keep the stella page up-to-date with China related materials. Doing business in China is a perfect example of some of the complications and challenges of global operations. While there is no doubt that the Chinese are becoming more familiar with the pace of international transactions and the need for rigorous and timely decisions, this was not always the case. Hong Kong was far more adept than the mainland, having been an international financial centre for many years and having attracted major accounting and legal firms to the area. Facility in English, the international business language, was also more developed in Hong Kong. Mainland China, still suspicious of the West, remained relatively closed, even after the return of Hong Kong in 1997, and tried to bridge the obvious gap through the special administrative status of Hong Kong. This could never have been satisfactory for the long term and as the Peoples’ Republic of China began to flex its muscles, growing ever stronger with each passing year as its internal economic engine generated huge amounts of exports, it began to make its own international arrangements. It needed markets outside China into which it could sell and it needed to attract capital and expertise to increase its own technical and industrial capacity. It also needed critical supplies of materials and equipment. Trading partners wanted access to the enormous Chinese market. All the ingredients were there for the establishment of mutually beneficial relationships, but progress was often agonizingly slow and complicated.

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Cultural differences often added to the complications, compounded by the experience, at least in the early days, of almost impenetrable language difficulties. Most of the Chinese officials spoke only Mandarin. Most of the business community in Hong Kong, the natural source for knowledgeable Chinese with business experience, spoke Cantonese. The westerners spoke neither. Everyone depended on translators, indeed, were at the complete mercy of translators. John Leopold, Steeve Robitaille, and Robert Hogan once went to Shanghai three times in three months, having spent the three months negotiating a contract, only to find that they did not have the deal they thought they were negotiating but were merely auditioning and that the meeting was an interview to determine whether they were to be engaged or not. Westerners are used to sitting around a boardroom table. The typical Chinese boardroom had no table, just a series of large chairs around the edges of the room in which the parties either sat parallel to each other or some distance away. On their deal, there were two or three Chinese slumped in chairs and the interpreters, speaking Mandarin and Cantonese, attempted to provide at least a minimal understanding of what was being discussed. One of the principal difficulties was that the interpreter used by the chair of the Chinese company was no good at all. It eventually took two and a half months to negotiate an engagement letter, which went through twenty-five drafts. At one stage, one of the state-owned Chinese companies wanted to take over a major Canadian business and, while ready to commit to a large transaction, was not ready to do it quickly enough. Concerns developed in Canada. During one of the many conference calls, this one dealing with some of the potential regulatory concerns, we were using the Hong Kong office of Cleary Gottlieb, whose interpreter was excellent, unlike that of the Chinese chair, whose performance was even worse than usual. They developed an imaginative way around the problem: they said that the Shanghai telephone connection was not working well enough to hear, but the Hong Kong connection worked perfectly, so they would (for this call only) use the Hong Kong–based interpreter. This solution avoided the challenge, an almost impossible cultural hurdle, of telling the chair that his interpreter was incompetent. Despite the many difficulties arising from the cultural differences, the China Initiative has been reasonably successful, generating a number of important mandates involving transactions within Canada and internationally. These included representing Sinopec International Petroleum Exploration and Production Corporation in the acquisition of Tanganyika Oil Company, Ltd. and, later, in 2009, in its $10.3 billion acquisition of Addax Petroleum Corp. In 2010, we were retained by cnpc International, a wholly owned subsidiary of China National Petroleum Corporation in its offer to acquire Verenex Energy Inc. More recently, the firm is acting for

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cnooc in its acquisition of Nexen Inc. Some of the other fruits of the China initiative are detailed in the discussion of the Calgary office. middle east It is hardly news to anyone that there is a great deal of wealth centred in the Middle East and that the continued accumulation of wealth will persist as long as the world relies primarily on oil and gas as its fuels. Many of the Middle Eastern states and rulers have become sophisticated investors over the years and continue to take further steps to diversify their portfolios. Such investment activity, particularly significant investments, requires the assistance of professionals familiar with the legal environment in the jurisdiction of the investment. As in all new territories, in order to best render services in Canada, it is essential to gain an understanding of the local legal market as well as the business market generally to be able to target not only the organizations but also the type of legal services they will require if they have an interest in investment. The flip side is that many such states also hope to attract know-how and technology back to the region and a knowledge of the legal and investment background can be useful to Canadian businesses hoping to export their services or products in the area. The potential for the firm in the Middle East continues to grow. Sovereign wealth funds and state-owned enterprises in the region are, despite the recent financial turmoil, still very strong financially and have demonstrated increasing interest in pursuing international investment opportunities to diversify their assets. Peter Castiel, John Leopold, Curtis Cusinato, and Craig Story comprise the committee that coordinates the regional initiative. Castiel, Leopold, and Raymond visited sovereign wealth funds in Dubai and Abu Dhabi in 2009 to establish direct relationships with leading law firms, sovereign wealth funds, and state-owned enterprises in the region. This helped them gain a better understanding of the legal market in the United Arab Emirates and its potential for the firm and to learn more about the uae market generally for purposes of assisting Canadian and other clients. uk /london The London office’s business plan is to be the firm most often called for inbound transactions into Canada originating from the United Kingdom and Europe. The office cultivates strong relationships with the Magic Circle and other international firms based in the city. The London office continues to work closely with the offices in New York and Sydney to provide a co-ordinated international strategy and regularly assists in facilitating

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introductions for the Sovereign Wealth, German, and India Initiatives. Having been active in London for more than forty years, the firm has developed a rich network of contacts and clients and is uniquely placed to provide such services within the firm. Much of the activity in London centres on constant efforts to raise the firm profile even higher. Conditions following the 2008 financial crisis have been particularly difficult in London, as one of the major financial centres of the world and one where drastic measures were required on the part of the uk government to prevent outright failure of major financial institutions. The level of uk activity reflected that crisis, but the activities of the London office in support of the efforts of other offices were maintained, including participation in international conferences as far afield as Warsaw and South Africa in addition to the more familiar areas in Western Europe. Richard Hay is a regular speaker at conferences in several jurisdictions, including Jersey, Dublin, and Monaco and Robert Reymond is a regular visitor to Geneva and Zurich for client-related business and speaking engagements. india India, too, is a relatively new territory for the firm. While there are profound cultural differences, it is nevertheless easier to deal with many of the related issues because of the established use of English as the principal language of business. As with the other major foreign markets, there is an India interest group, combined with a smaller steering committee consisting of Dee Rajpal, Raymond, Amyn Abdula, Stewart Sutcliffe, Erik Richer La Flèche, and Stuart Olley. The pattern of activities is much the same as with the other markets, including visits and creation of an India practice card. We use the Toronto Investment Bank group to identify opportunities to have our India expertise showcased in front of targeted investment bankers. We have regular mailings to our key partners and contacts in India. The outcomes have been most encouraging. Relationships have been established with some of the key players in India and interesting mandates have emerged as a result of these efforts, including Tata Steel, Nikko Resources, Westmont/Nissan, and many others. In addition to the work, we have been active in attracting attention to our initiatives: Sutcliffe was quoted in an article in the India Law Journal, Rajpal was interviewed by the Economist and also by the National Post, and the firm was featured in the June 2010 edition of India Business Law Journal’s fourth annual survey of the outstanding foreign law firms for India-related work. We also sponsored the Terry Fox Run in Mumbai in February 2010. India has a growing infrastructure sector and is currently developing plans in the range of one trillion dollars, half of which is to come from the

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private sector, much of which may well come from outside India. It is more than willing to put its show on the road and, for example, in conjunction with the Canada-India Business Council held an Infrastructure Today India Opportunity 2012 Conference in Toronto in May 2012. Some twenty expert speakers, including an official Indian delegation led by the secretary for road transport and highways, analyzed key issues and suggested specific solutions for Canadian investors and exporters. The opportunities work both ways. Representatives from India had the opportunity to describe its underlying policies and financial environment, focusing on opportunities in roads, rail, seaports, airports, power, water, real estate, and urban development, as well as outlining project timelines and riskreturn profiles. In the other direction, Canadians were able to showcase the competitive advantages for Canada in matters such as finance, engineering, architecture, construction, power, and clean technologies. Attending the presentations and panels provided the chance to connect with leaders in both the Indian and Canadian infrastructure sectors. israel Israel has become a country of interest for the firm as it has a particularly significant rate of companies going public on international stock exchanges. It is the largest foreign issuer on the nasdaq, as well as one of the largest issuers in London. Jeffrey Singer led a panel at the third Going Public Abroad conference of the Association of Publicly Traded Companies and dc Finance in June 2010. The panel included representatives from the Toronto Stock Exchange and the Bank of Montreal. Eric Carmona and Brian Pukier have conducted business in Israel and both Carmona and Singer actively monitor the potential for business there. latin america The firm has many long-standing relationships with firms and corporations in Latin America. We have developed a Latin America card and translated it into Spanish. Bill Braithwaite, Ed Waitzer, Stuart Olley, Gordon Chmilar, Lisa McDowell, Ray MacDougall, and other members of the global mining group have been active in this initiative. We have added a Latin America practice page to the website. Several members of the group have organized trips to various countries in the region: MacDougall was in Chile in May 2010 and Waitzer spoke on a panel at the cesco (Centro de Estudios del Cobre y la Mineria) Conference in Santiago in early April 2009. Later the same month, MacDougall presented at the Workshop on Mining Industry Finance hosted in Santiago by La Comisión Calificadora

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de Competencias en Recursos y Reservas Mineras. In June 2009, Olley and Chmilar were in Bogota to participate in a panel discussion with representatives from the Toronto Stock Exchange, Raymond James, Deloitte, and Equicom. The panel focused on oil and gas companies, and the opportunities for financing and listing in Canada as well as joint ventures with Canadian companies. Coordination for the event was managed by tmx, with significant planning, coordination, and support from the CanadianColombian Chamber of Commerce in Bogota and the Canadian Embassy in Bogota. france Principally (and not surprisingly) through the Montreal office, the firm has been very active at marketing in France and makes regular visits. We have had a good base of contacts in France as a result of the early renown of the late Senator Maurice Riel and his heir-apparent, Michel Vennat, prior to Vennat’s abandoning the practice of law in favour of corporate investment and management. Raymond and Guy Masson moved into Vennat’s footsteps and eventually Masson passed the torch to Alix d’Anglejan-Chatillon and Warren Katz. Today, Raymond, d’Anglejan-Chatillon, and Katz, in particular, are focused on the region and constantly reinforce and extend our relationships. germany The firm’s German initiative has been relatively recent. Since its implementation in 2008, the team, consisting of Derek Linfield, Stewart Sutcliffe, Don Belovich, Michel Gélinas, John Leopold, and Paul Collins (until his recent, but now completed, secondment) have carefully assessed the German legal market and have significantly broadened and reinforced contacts in the three key German business centres of Frankfurt, Düsseldorf, and Munich. The overall assessment is that relatively few Canadian firms have been active in organized pursuit of the German market. The objective is to obtain a significant portion of German inbound work to Canada, whether big-ticket m&a transactions or commercial litigation, by focusing on the large German and Magic Circle firms, as well as the German offices of selected US firms. In 2010, the Toronto office recruited a lateral partner, Eric Bremerman, from a Toronto boutique firm. Bremerman had lived in Germany for ten years while growing up and, before joining the firm, had developed a significant practice advising public and private European corporations based in Austria, Germany, and Switzerland on their business ventures and operations in Canada, which covered a range of industries that included the

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consumer goods and manufacturing industry, it, and logistics, renewable energy, and public-private infrastructure. In order to follow developments in the German market and to keep in touch with German contacts, the group added them to our “m&a Update” and The Competitor, created an InterAction folder, to which we add German lawyers met as a result of the initiative, and continues to track significant business and legal developments in Germany or affecting German companies. We track both inbound and outbound referrals, have set up a page on stella, and created an internal mailing list. There is, however, no substitute for personal contact and visits by Leopold, Gélinas, Linfield and Sutcliffe to major law firms in Frankfurt, Düsseldorf, and Munich became regular features of the German Initiative. The efforts have paid off and, in addition to obtaining a number of significant mandates, we have been able to establish direct contact with German companies. Strengthening the connections with German law firms, in September 2009, Raph Kerney and Joerg Lips of cms Hasche visited our Toronto and Montreal offices. Lips was seconded to the Toronto office in 2008–09. Matthias Lack, a senior associate with Hengeler Mueller, was seconded to the Montreal office during most of 2010. s a s k a t c h e wa n Saskatchewan is hardly foreign, although the firm has no physical presence there, relying on the Calgary office to continue its active coverage. A native of Saskatchewan, Brad Grant leads our initiative there, meeting every key player in the province. More recently, Kenton Rein has taken on a bigger role in the Saskatchewan initiative. He and Grant regularly visit Saskatoon to meet with contacts there. Grant has also maintained close contact with a number of Saskatchewan-based law firms through referrals from the Montreal and Toronto offices. united states Notwithstanding concerns that the firm not rely too heavily on the US market, the combination of the economic power of that market and its geographic proximity produces an extraordinary level of activity and a need for legal services. It remains the largest source of foreign-based legal work for the firm and we pay the most careful attention to enhancing the network of relationships likely to lead to mandates. The sophistication, diversity, and geographic dispersion of the US market require a multi-faceted approach and a focus on particular niches of the market. A special US strategy and marketing committee, by far the largest of our foreign-interest committees, chaired by Phil Henderson, coordinates coverage of target markets within

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the United States and identifies new strategic opportunities for the firm to maintain current relationships and develop new business. Members include Marc Barbeau, Patrick Benaroche, Marc-André Coulombe, Michel Gélinas, and William Rosenberg from Montreal, Curtis Cusinato, Lorna Cuthbert, Jim Harbell, Dean Kraus, Patrick O’Kelly, Ian Putnam, Jeffrey Singer, Ron Ferguson and Lewis Smith from Toronto, Lawson Hunter from Ottawa, Glenn Cameron, Chris Nixon, and Craig Story from Calgary, Dan Steiner from Vancouver, Ken Ottenbreit and Gordon Cameron from New York, and Stewart Sutcliffe from London. There are several components of the US marketing strategy, including coverage of the New York market, coordinating with the marketing and business development activities of the various firm practice groups, and coverage of certain target cities. New York is by far the largest and most important of the markets and the firm targets approximately thirty law firms for special attention. (While knowledgeable readers might well be able to deduce which firms are included, it is not the purpose of this book to divulge specific information that might be used by other firms.) Every quarter, a diverse group of partners from several offices and practice groups organizes conference calls to share information, relationships, and ideas regarding each of the firms. The outcomes have been increased transparency in the marketing efforts directed at the New York law firms, less reliance on a small group of individuals to grow and maintain relationships, and a better grasp of the state of our relationships with each firm, leading to more informed decisions on where our time and resources are best spent and providing some metrics for each firm of both actual referrals and anecdotal assessments (where we are told that we are on their “list”), which we, in turn, can use in referral management. New York is one of the world’s major locations for investment bankers, such as jp Morgan, Morgan Stanley, Citibank, Goldman Sachs, Merrill Lynch, Bank of America, and ubs, all of which are potential (and actual) sources of business. Regular calls are made within the interest group to discuss progress. We maintain a master list of important Canadian contacts at major investment banks, which serves as an important resource for various practice groups. A group of lawyers from the Montreal and Toronto securities, m&a, and negotiated transactions meets quarterly to discuss our efforts to cover the New York (and United States generally) private equity funds. Partner marketing trips to New York have increased and have broadened, so that it is not always the same people who are visiting. We have implemented a deliberate strategy of increasing the exposure of our litigation, banking, tax, and employment groups to this market, as well as a continued focus on strengthening our restructuring group’s efforts in that city. Coordinated marketing requires increasing coordination with practice

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groups throughout the firm and the encouragement of US marketing and business development efforts on a practice group basis. We have identified a number of US cities in addition to New York that we consider important from a US marketing perspective and have asked a number of lawyers to educate themselves about one or more of those markets and to be responsible for making sure that the appropriate lawyers or practice groups are covering any important targets (whether law firms, commercial banks, investment banks, corporations, pension plans, and others) in those markets. american bar association (aba) The aba is one of the largest and most sophisticated legal organizations in the world. Active involvement in it can be a very productive means of generating contacts and demonstrating professional competence. The firm has been heavily involved for many years and several members, including Brian Rose, Samantha Horn, John Leopold, William Rosenberg, and many others, are well entrenched, particularly in the business law section. Rosenberg was elected to a position in the hierarchy of the business law section that should lead to his becoming the first non-American lawyer to chair the section. He was instrumental in arranging for the author to be appointed as a Business Law Advisor in 2012. We regularly assess membership and participation to make sure we have the right people in place to identify and secure opportunities for the firm as well as ensuring that we align our efforts for real business development potential with our core practice areas, relying primarily on Rose and Rosenberg for the purpose. We have participated in the annual meeting of the Association of Corporate Counsel since 2005 and regularly send a number of lawyers to the meetings. Participation in the acc is, however, an expensive proposition and we re-evaluate our ongoing commitment each year, using an “ad hoc” group, now consisting of McCormack, Rose, Horn, Jonathan Drance, and Michel Gélinas, to coordinate and determine our level of participation in the next annual meeting. While some partners view our participation as a very good way to meet with US corporate counsel across a broad range of industries over a few short days and to get our name “out there” generally, the committee is mindful of the legitimate question of whether we have received any meaningful work as a result of our attendance and whether we are getting sufficient “bang for our buck.” Bill Scott, who served in our Singapore office prior to its closure, has been actively involved with the Inter-Pacific Bar Association, the leading international business law association for business lawyers who live in or have a strong interest in the Asia-Pacific region. The ipba has some 1,400 members from more than sixty-five jurisdictions and, Scott, since attending his first annual conference of the ipba in Auckland, New Zealand, in

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1998, has been a regular attendee, maintaining his connection with our Asian-based clients and the Asian legal community. For the last six years he has been the Canadian representative on the governing council and in the summer of 2011 led a proposal by Canadian members to host the 2014 annual conference in Vancouver (the first in Canada since 2000). As a result, in 2012 he became the ipba’s vice-president and will become presidentelect in 2013 and president in 2014. In addition to heading-up the effort to organize the Vancouver conference, he will be expected to undertake a significant leadership role in the association in its relations with other international bar associations and Asian-focused organizations. international networks Many international opportunities come about as a result of relationships and networks of which the firm is a part. One recent example derives from a strong relationship with Jones Day in New York. Former British prime minister Tony Blair’s Africa Governance Initiative, in conjunction with the International Senior Lawyers Project, had asked Jones Day to teach a fiveday seminar for senior government officials in Rwanda on negotiating mining contracts. Jones Day had taught in similar successful and well-received seminars in Congo and Tanzania. In the case of the Rwanda seminar, the Africa Governance Initiative was looking for two people to teach and Jones Day thought that it might be interesting for a partner of Stikeman Elliott to participate, suggesting that it was a very good opportunity to work for Tony Blair’s people as well as to build some contacts in Rwanda’s Ministry of National Resources. The approach came in through John Leopold, who referred it to Jay Kellerman and Erik Richer La Flèche, who had done the same sort of thing in Africa, Asia, and Oceania and who was willing to do a seminar if it was regarded as important to the firm or had blocking value in not giving another firm the opportunity. Rwanda is a “former” francophone country, but because the current Rwanda political leadership was raised in exile in Uganda and speaks little French (it appears the French backed the wrong side) the country is fast becoming an anglophone nation, at least in the civil service. If the desirability of recognizing at least the historical importance of French played a part in Jones Day’s invitation to the firm, it was reasonable to suspect that if we did not participate, Jones Day would approach another firm from Quebec because of language and mining expertise. Work in emerging markets, both at home and abroad, has allowed us to represent Canadian investors in their investments around the world. As an example, Richer La Flèche represents Montreal’s Cordiant Capital in such global investments. In addition, he sits on the investment committee of the Canada Investment Fund for Africa.

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conclusions The current model appears to be working well, despite the strains on business, finances, and expansion resulting from the financial crisis, and should prove to have laid a firm platform to benefit from the economic recovery, if, as and when it occurs. In any event, much of what Canada has to offer, especially in the nature of natural resources, falls within the range of necessities, which should be less affected by financial conditions than discretionary alternatives.

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chapter 3

Toronto – At the Centre of the Canadian Business Universe

toronto By the time the Toronto firm was created, Stikeman Elliott was already a “player” in the Montreal market, even if it was not yet among the largest firms in the city. It took time for the firm to make significant inroads into the business community in Toronto and to achieve the same status it had in Montreal. It would have taken far longer had Fraser Elliott not decided to move to Toronto to give the firm’s growth his personal attention. He could play on the same turf as any of the business leaders in Toronto, with his ownership position in cae, his bank and other directorships, and his major league art collection and charitable activities. There is no doubt that his arrival accelerated recruiting and development. But, aside from Elliott himself and the excellent, but narrower, reputation of Don Bowman, there were no big Toronto names. George Tamaki, David Finkelstein, and Robert Couzin all moved from Montreal and added enormous strength to the tax capacity of the firm, but none of them was regarded as “Toronto.” (John Robarts, as former premier of Ontario, was a big name, but it was understood from the beginning that he would not be expected to do regular legal work for the firm.) There was a good deal of nascent talent, but there were, as yet, no established reputations. By the beginning of the sixth decade of the firm’s existence, its fourth in Toronto, there had been a major shift in the perception of the firm. In Toronto, the firm is now undeniably among the Seven Sisters as a preeminent business law firm. It is highly regarded as a transactional firm, capable of managing the largest and most complex transactions, and its leaders are national figures as well as at the top of the heap in their local markets. In addition, the Toronto office had become the largest and most important of the firm’s offices. It had enjoyed a somewhat privileged status

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in its earlier years as the beneficiary of a good deal of high quality work derived from Montreal and from Stikeman and Elliott’s national, as well as international, connections and reputation. While it fell short of believing that this bounty was manna from heaven, it took some time for Toronto to realize that this would not last forever and that it would have to produce more and more of its own work. To their immense credit, they dug in, seized the opportunities particular to being in the business centre of the country, and created a brand second to none in the local profession. Not unusually, it had its share of false starts and bumps along the way, but Toronto has become and remains the foremost office of the firm. Continuity and stability of leadership are essential in any undertaking, especially one facing rapid expansion. As the sixth decade began, Rod Barrett had been the managing partner in Toronto for some three years, having succeeded David Finkelstein in 1999, and the hallmarks of his management philosophy were well established. The office’s business strategy, structure, and management all stemmed from an underlying philosophy that Heward Stikeman and Fraser Elliott had articulated and that David Finkelstein had entrenched in the Toronto office during its explosive growth in the 1980s and 1990s. Barrett liked to refer to this philosophy as “the grass roots approach.” The theory behind the grass roots approach is that leadership is most conducive to entrepreneurship, long-term sustainability, profitability, and collegiality when it is “bottom up,” rather than “top down.” On the grass roots approach, management’s role is essentially fourfold: to empower individuals and small groups to grow their practices, innovate, and make as many of the decisions that affect their practices as possible; to create an environment conducive to the germination and sharing of ideas and innovation arising at the individual and small group level amongst a broader audience; to choose the ideas and priorities most relevant to the broader audience and nurture and grow them; and to communicate and embed new ideas throughout the firm’s culture and infrastructure at the grass roots level. Although the main thrust of the grass roots approach is to empower individuals and teams, it requires exceptional communication, a strong infrastructure, and a culture of collegiality to support the range of individual and team efforts without descending into chaos or factionalism. Barrett had made a significant investment in the Toronto office infrastructure when he hired Jean McLeod as general manager in 2000. McLeod changed the face of the Toronto office by bringing the same degree of excellence and collegiality to the non-legal business services team as was expected at the lawyer level. Under her leadership the finance, technology, human resources, office services, marketing, administrative services, and recruiting teams in Toronto work together as an integrated unit to support the ever-increasing range of work developed by the firm’s lawyers.

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As the Toronto office grew in numbers and in the volume of work generated, what had been a promising trickle and then a healthy flow of work became a virtual tsunami of work and cases that would be a treasure trove for economic anthropologists of the future, since the range and importance of the activities cast light on many of the history-changing events of their times. There are simply too many to fit within a book of this length. Each of the other offices has its share of such involvements, some of which are noted in the chapter devoted to them, but not on the scale of what occurred in Toronto. Unlike chapters devoted to other offices, a better sense of the evolution in Toronto can be gleaned from a more chronological approach. 2002 2002 was a memorable year and the two most significant events affecting the office both occurred during the weekend of 19 to 22 April. That weekend the entire firm had gathered for our “United to the Summit” retreat in Whistler, bc. Because of the foreign air travel concerns in the post-9/11 world, the firm had been forced to cancel a planned Florida retreat in November 2001 and had instead settled on a Canadian destination for April 2002. We had spectacular weather in British Columbia with sun and soft snow for the entire week leading up to the Saturday event, answering the prayers of many who had travelled to Whistler (pretending their skis belonged to someone else) earlier in the week. During the retreat itself, we had an Everest-themed team-building day (unfortunately conducted indoors in a windowless room – doubtless an accommodation to those suffering from acrophobia) that included the now-famous “cut the rope” exercise. This involved all participants lining up on one side of the room or the other depending on whether they thought they personally would, or would not, have cut the rope binding them to a climbing colleague who could not be saved after falling from a ledge and who was about to pull them over. Anne Ristic confesses that she suspected she might well have cut the rope in this circumstance but felt that revealing this would have been a terrible signal to send on the part of the person nominally responsible for firm colleagues, so she lined up sanctimoniously with the professed heroic (or suicidal?) non-cutters. The exercise spawned an expression in the Toronto office that is still used in a host of situations – most notably when a colleague is going on too long in a speech at a firm event. Although the indoor Everest day prevented another spectacular day of skiing, the evening reward is still considered by many in Toronto as the best-ever Stikeman Elliott party (with some stiff, but unspecified, competition). Perhaps because we had boundless energy from the day indoors, the dancing lasted well into the wee hours.

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The author presented the Fiftieth Anniversary Keynote Address at the “business” sessions at that retreat, bringing the firm’s history and future to life through the lens of the unique Stikeman Elliott culture. The number of times the analogies of the canoe and the doubles team that became a hockey team and then a football team and beyond as well as the ten principles to guide our future have been referred to suggests that they continue to provide inspiration today and quotes from this address still form the foundation of the Toronto office student website and firm-wide diversity materials. Another highlight was the presentation of ice-themed sculptures to the “old guard” of lawyers who had built the firm since the early days. When Finkelstein received his ice sculpture, he had to diplomatically edge Jim Grant away from the microphone – more easily said than done with a former chair resolutely determined to get to the end of the presentations – in order to speak in heartfelt and inspirational terms about Stikeman Elliott and what the firm had meant to him throughout his career in Montreal and Toronto. Most of the firm did not know, until coming to work on the Monday after the retreat, that John Stransman had died on Sunday, April 22, 2002. 2003 Coming into 2003, the Toronto office was faced with a combination of challenges. The effect of the economic downturn in the wake of 9/11 was exacerbated by the loss of three of Toronto’s biggest marquee players and business producers – John Stransman, who had died the previous year, Lawson Hunter, who left in early 2003 to join bce, and Ed Waitzer, who accepted a year-long posting in Chile in 2003. Despite these challenges, Toronto lawyers were involved in much of the significant business activity in the Toronto market that year. In fact, as the firm grew larger and its reputation grew accordingly, the nature of the mandates on which it acted became an increasing reflection of the major business developments in the country as a whole. Led by Bill Braithwaite, we represented the special committee of the Canada Life board of directors in an unsolicited $6.4 billion bid by Manulife and the subsequent negotiated transaction with Great-West Life. Marvin Yontef, with the involvement of many others across the entire firm, acted for Air Canada in the restructuring of its business in the context of the largest insolvency, business, and debt restructuring in Canadian history. The Ontario Teachers’ Pension Plan engaged the firm, led by Braithwaite, in its $1.8 billion purchase of Fording Inc. Philip Services Corporation was represented by a team led by David Byers, Daphne MacKenzie, and Liz Pillon in a us$1 billion cross-border restructuring. Jim Harbell coordinated continuing advice to Sithe Energies in a $942 million project financing for

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the development of the Southdown and Goreway natural gas-fired generating stations in Brampton, Ontario, one of the largest project finance transactions in Ontario history at the time, as well as securing environmental and regulatory approvals to permit the development. Brian Rose was lead counsel for Moore Corporation Ltd. in its $1.08 billion purchase of Wallace Computer Services, Inc. Waitzer quarterbacked Magna International Inc. in the $1.1 billion spin-off of 100 per cent of the shares in mi Developments Inc. to its shareholders. Simon Romano managed the complex arrangements of Assante Corporation and Loring Ward International Ltd. in their $1 billion plan of arrangement with ci Fund Management Inc. to spin-off Assante’s US and related operations to shareholders by way of a pro rata distribution of shares of Loring Ward International Ltd. As part of the many corporate and business realignments occurring during this period, Jennifer Legge assisted Key Equipment Finance Canada Ltd. in its $640 million acquisition of td Bank Financial Group’s equipment finance and lease portfolio. Alison Youngman advised Symcor Inc. in its $1.1 billion outsourcing arrangement with the Bank of Nova Scotia. Adding to the complications arising from a diminishing level of new business in the post- 9/11 fallout, the Law Society of Upper Canada changed its new-lawyer qualification procedures, so that the office had a “double cohort” of first-year lawyers called to the Bar in 2002, one group in January and another in September. This meant that by the end of 2002 more than forty first-year lawyers had to be integrated into the office, at a time when workflow was down and associate attrition at every level had all but disappeared due to limited opportunities in other markets also affected by the slow-down. Reduced to its essentials, the most pressing challenge for Toronto in 2003 could be summed up as “get busier.” There were a number of initiatives to support this objective, three of which were especially noteworthy. The first was the new ideas committee – by analogy, a form of a “research and development” concept – to identify new client needs or new areas for legal services that the firm could offer to clients. An ad hoc new ideas committee met every second week throughout 2003 and into 2004 to brainstorm and to choose the most promising ideas to implement. Some of the significant initiatives coming out of the deliberations of this ad hoc group were “Litigation Unleashed,” an eighty-page guide to the Ontario Bill that changed the corporate governance liability regime under the Ontario Securities Act; a “Handbook for Directors and Officers,” produced as a joint initiative with Chubb Insurance; a guide to the new privacy legislation coming into force in 2004; and a number of presentations to clients relating to income trusts, reits, structured products, and inno-

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vative tax structures. Each initiative was aimed at generating new work in an area that had not previously existed or in which the firm had not previously practiced. A second major focus of 2003 was an initiative relating to lateral-hires. With the loss of Stransman and Hunter, and the temporary absence of Waitzer, a number of partners, including some from outside Toronto, felt that the perceived gaps in the firm could be filled either through merging with another top tier Toronto firm or by “cherry picking” senior marquee players from other firms. Barrett had a different idea. “We need more forty year olds,” was how he put it. Like many of his strategies, it was an excellent idea that did not immediately strike others as intuitively obvious. “Why do they have to be forty?” and “Shouldn’t we be focusing on practice areas rather than age?” were typical responses. Barrett’s idea, however, was that really talented lawyers with a good client following at forty would quickly grow into marquee players and would almost certainly be easier for us to get to move in our direction than senior players at the top of their games at their own firms. He reasoned that “forty-year olds” might be prepared to move if the firm could offer them a better platform and brand than their current firm or better leadership opportunities in their practice area. Barrett’s faith was not misplaced. The firm did not engage a head-hunter but instead took an opportunistic, word-of-mouth, approach to attracting high-quality partners from other firms. This approach turned out to be very successful, although the partners who joined were in a broad age spectrum of both over and under forty. In 2003, Joel Binder, Elizabeth Breen, Alan D’Silva, David Ehrlich, Jeff Singer, and David Weinberger joined, followed by Eric Carmona, Cliff Rand, and Susan Thomson in 2004 and Doug Klaassen in 2005. These lateral hires quickly joined forces with the team of very talented next-generation partners already in the Toronto office, adding to the firm’s fabric and growing their practice areas, to the point that the Toronto office is now noted for its bench strength at all levels. By the end of 2003, however, Binder did tell Barrett that his goal in 2004 was not to see his name appear, ever again, as a bullet-point in a PowerPoint presentation at partners meetings summarizing the successes of the Toronto business plan. A third, related, initiative that year was the beginning of a greater focus on promoting the lawyers of the next generation in media and marketing efforts, through business development and leadership opportunities within the firm, and by providing strong marketing support for their individual business development plans. This initiative, born out of necessity at a time when the office had lost so many established leaders, persists to this day as an important facet of keeping the partnership vibrant.

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2004 In 2004, the work generated in Toronto reflected activity by our new lateral hires, next generation partners, and established marquee players alike. There were several high-profile mandates that year. Braithwaite and Mihkel Voore acted for the Government of Canada in the $3 billion sale of its remaining Petro-Canada shares, the single largest sale of shares in Canadian history to date and ranked as Lexpert Deal of the Year #5. The saga continued with Air Canada’s epic restructuring, ranked by Lexpert as Deal of the Year #6) (Yontef, Dunphy, and many others across different offices). Erlich and Romano represented Canadian Apartment Properties reit in its merger with Residential Equities reit, creating one of Canada’s largest reits. Romano also acted for Verizon in what was the second largest secondary offering in Canadian history, with Verizon selling its approximate 21 per cent stake in Telus for gross proceeds of more than $2.2 billion. And Singer represented the underwriters in the subscription receipt offering of bfi Canada to finance its $1.1 billion purchase of iesi Corporation. During this time, while Pierre Raymond was serving as interim chair in Ed Waitzer’s absence, each office’s managing partner was asked to report on the office’s longer-term strategic direction for the next three years. The Toronto office report on strategic direction identified five elements, which continued to be priorities in similar reports prepared in 2006 and 2010: emphasizing specialty practices and new trends in efforts to generate new business; developing and promoting leaders in the next generation (or, as Barrett described it in his 2004 annual report, “reducing our reliance on a few big producers”); growing in a conservative and balanced fashion and managing both size and leverage so as to sustain utilization levels within an accepted “band”; continuously evolving management and infrastructure (including knowledge management, marketing, recruiting, and technology) to take advantage of new solutions and best practices so that our lawyers are able to practice at the highest level and focus on interesting and challenging work in a collegial environment in which they enjoy working; and, each year, selecting three or four initiatives that reflect these goals as the basis for the annual Toronto business plan. 2004 saw the beginning of a focus on practice groups as key drivers of business development and marketing strategies in Toronto. In the slowdown that had occurred in 2002 and 2003, Barrett had observed that those partners who had both broad legal knowledge and an identifiable and marketable specialty practice expertise tended to be busier than generalist partners without an identifiable specialty. That year David McCarthy and Jennifer Northcote, then the co-heads of Toronto’s corporate department, engaged in a consultation process with all corporate partners to

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develop a blueprint for corporate practice groups on the basis of which Toronto established six specialty practice groups within the corporate department, in addition to the traditional departments of litigation, employment, tax, and real estate. Practice group leaders and department heads were asked to become familiar with the individual business plans of the partners in their group and to work with the group to identify potential new business opportunities and develop a group marketing plan. As part of each group’s marketing and business development planning, the new ideas initiative migrated to the practice group level. At the same time, a number of new industry groups and global initiatives were formed at the marketing level to facilitate targeted marketing efforts directed at specific industries and regions. 2005 On 26 January 2005 an era ended in Toronto (and for the firm at large) when Fraser Elliott died. New business generation and activity levels in Toronto had begun to rise in 2004 and by 2005 the office was extremely busy. The challenge then became one of managing growth and improving leverage to take advantage of the increasing demand for the firm’s services. There were several highprofile mandates that year. Braithwaite, Brian Pukier, and Binder acted on Lexpert’s Deal of the Year #8, in which a consortium led by bpo Properties (Brookfield Properties Corp.), participated in the $2.1 billion combined o&y Properties Corp. and o&y Real Estate Investment Trust, a result of the largest real-estate auction in Canadian history. Braithwaite, Singer, and Pukier acted for the special committee of the board of directors of Royster-Clark Ltd. in connection with the first Income Deposit Securities (ids) hostile take-over bid in Canada, which was made by Agrium Inc. Richard Clark and Dee Rajpal were Canadian counsel to kkr, Bain Capital, and Vornado in their winning bid to purchase Toys-R-Us, a deal valued at $6.6 billion. On his feet before the Ontario Divisional Court, Byers achieved a reversal of an Ontario Securities Commission ruling on waiver of privilege for the Receiver of Philips Services Corp., picked by Lexpert as Case of the Year #6. Because hiring enough top-quality people to meet increasing demand was the biggest priority that year, Barrett finally got the students committee interested in “Moneyball.” He had read an article about Moneyball, the book by Michael Lewis, when it first came out in 2003 and was immediately struck by the parallels between the book’s description of major league baseball scouting and the process of recruiting for the firm. His hypothesis was that we, like the established scouts in the book, were relying on impressions and on criteria (or “tools”) that we thought were good predictors

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of success but which, in fact, were not very reliable indicators. He thought that we could achieve an enormous competitive advantage if we were better able to define the predictors of future success in the firm, and then zoom in on those predictors during the recruiting process. The reaction he got from most of his colleagues back in 2003 was, predictably, very similar to the reaction of Oakland’s established scouts to Billy Beane’s new-fangled approach: they listened, they were polite, but they were skeptical, and they continued doing what they were doing, based on what they perceived as the wisdom of many years of experience. “This isn’t baseball,” was one reaction; “We don’t have statistics,” was another. “Baseball players have a long record of playing baseball when they get scouted; law students have zero records practicing law.” Barrett remained patient and, other than mentioning from time to time that he wished he could get someone interested in his baseball theory, he left the topic alone. In the booming economy of 2005, the office needed to hire ever-larger numbers of new lawyers, while competing with other firms chasing the same pool of talent. The penny dropped and the idea that the firm might try to identify students with great potential that other firms were missing took hold. The students committee embarked on a project, code-named (surprise!) “Moneyball,” to define the attributes that led to success in firm partners and to develop a more focused recruitment process to hire students based on those attributes. Ristic, who had been involved with the Toronto student program since 1990, was assigned the task of reviewing the records of the last fifteen years of the Toronto office’s articling students (273 in total) to correlate their academic records with their performance during articling. She also reviewed the records of 144 associates and students who had left the firm from 1998 to 2005 to analyze their reasons for leaving. At the same time, an outside consultant interviewed eight successful partners about what they believed led to becoming a successful partner and seven strong interviewers about what they looked for in hiring and how they approached interviewing. The consultant also reviewed research on top performers in the legal profession generally. Using all of this data, the students committee developed a list of key attributes to look for in candidates and instituted enhancements to the application screening and interviewing processes that continue to be the foundation of the recruitment process today. 2006 In 2006, m&a and other transaction activities in the Toronto office were at a fever pitch. Braithwaite, Mario Paura, and Rocky Delfino acted as Canadian counsel to Lowe’s Companies, Inc. on all aspects of its entry into Canada, the company’s first international expansion. The firm, led by Peter

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Howard, represented Royal Bank of Canada as a party to the Sears Holdings Corp. v. Ontario Securities Commission1 matter, Lexpert Case of the Year #6, and as party to a support agreement with Sears Canada in its proposed going-private transaction, Lexpert Deal of the Year #4. Katherine Kay acted for Air Canada in defending (successfully) an injunction application by the Air Canada Pilots Association in relation to alleged oppressive actions on the part of Air Canada. On another oppression-related matter, Howard acted for Frank Stronach, obtaining a judgment that dismissed allegations of oppression and consequent remedies sought against Stronach personally and mi Developments. Kay represented Sears Canada Inc. in class actions in Ontario, Quebec, and Saskatchewan alleging misrepresentations relating to consumer products. At the same time as m&a activity and other areas were booming, opportunities for lawyers outside Canada and outside the practice of law were plentiful and many of our lawyers took advantage of intriguing opportunities elsewhere. The office’s highest priority was hiring, followed closely by accelerating the development of our lawyers as quickly as possible to enable them to step up to increasing client demands and levels of responsibility. That year the new “Moneyball” approach got a baptism by fire as the firm hired thirty-two students, eighteen lateral associates, and one lateral partner, Calvin Lantz. Not everyone, however, was in favour of the all-out recruitment drive. After an additional lawyer was added to the Toronto recruitment team, one partner was heard to sniff “We’ve now hired someone to hire people.” One of the partnership board’s priorities that year was to establish a leadership development program for the firm. McLeod was asked to work with Kip Cobbett in Montreal and Ristic in Toronto to do this. The group looked at a range of programs at the firm and in other law firms and industries, and identified two parallel, but distinct, leadership needs – developing lawyers as “first-call” practitioners in their areas of expertise and developing management leadership talent within the firm. The group decided to adopt an internal, “organically grown” leadership development program and identified three vehicles to deliver the program: on-the-job “experiential” learning, coaching and feedback, and formal training programs. The recommended allocation of resources and emphasis was 50 per cent to on-the-job training, 40 per cent to coaching and feedback, and 10 per cent to formal training. Each managing partner was encouraged to adapt the facets of the program that best suited the leadership development priorities for the particular office.

1 Sears Holdings Corp. v. Ontario Securities Commission et al. [2006] 84 O.R. (3d) 61.

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In April 2006, the entire firm gathered again for an extremely successful retreat in Orlando. Also in 2006, David Brown of the Toronto litigation department was appointed to the Ontario Superior Court of Justice, the first (and only) lawyer from the Toronto office to go to the bench since John Sopinka and Sid Lederman. 2007 In 2007 we continued to experience exceptionally high demand for our services and to focus on our growth strategy, doing substantial hiring at both the student and lateral associate level to try to keep up with that demand. It was, in some respects, a busy “calm” before the coming financial storm. Waitzer and Braithwaite headed up the Toronto team for bce Inc. in connection with the $51.7 billion bid by Ontario Teachers’ Pension Plan, Providence Equity Partners, and Madison Dearborn Partners, the largest buyout in Canadian history, not surprisingly identified as the Lexpert Deal of the Year #1. Yontef and Breen represented Reuters Founders Share Company Limited in connection with the $17.6 billion merger of Reuters Group plc and Thomson Corp. in the Lexpert Deal of the Year #3. Singer led the team representing the controlling shareholders of Alliance Atlantis Communications Inc. in its $2.3 billion sale to CanWest Global Communications and Goldman Sachs in the Lexpert Deal of the Year #4. Braithwaite was the principal deal partner for Royal Dutch Shell plc in its $8.7 billion buyout of the minority shareholders of its Shell Canada Ltd. subsidiary, selected by Lexpert as Deal of the Year #6. Waitzer represented Frank Stronach in the us$1.54 million investment in Magna International by Russian Machines in a transaction identified by Lexpert as Deal of the Year #8. The pace continued unabated. Braithwaite shepherded Bema Gold in its $8 billion merger with Kinross Gold Corporation. He and John Ciardullo represented Essar Global Ltd. in its $1.85 billion acquisition of Algoma Steel Inc. Singer and Gordon Cameron in New York represented Harbinger Capital Partners in its successful $882 million hostile take-over bid for Calpine Power Income Fund. Braithwaite in Toronto and Anderson in Vancouver acted for UrAsia Energy Ltd. in connection with the $3.1 billion acquisition by sxr Uranium One. Quentin Markin acted for the underwriters in connection with Franco-Nevada Corp.’s $1 billion initial public offering, the largest in Canada in 2007. D’Arcy Nordick represented the underwriters in connection with the $2.5 billion Maple Bond offering by Morgan Stanley & Co., the largest such offering in Canadian history. Barrett and Kay led the team on behalf of Lakeport Brewing Income Fund in connection with the Canada (Commissioner of Competition) v. Labatt

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Brewing Co.2 case, followed by Lakeport’s acquisition by Labatt Brewing Co. Ltd., in the Lexpert Case of the Year #9. Given the continuing high demand for legal services, maintaining the hiring push and accelerating leadership development were ongoing priorities for Toronto. The office began to implement new facets of the leadership development program established in 2006. One important aspect was to accelerate the transition to partnership with a program for new partners, kicked off by the first annual New Partners’ Retreat at Blue Mountain in Collingwood, focusing on the themes of “building your practice” and “building your team,” followed up by continuing programs on these topics through the year. A second aspect of leadership development was to engage a new generation in firm management activities, and with this goal in mind a range of next generation partners was brought into new roles on the management committee, associates committee, and other firm committee roles, as well as in practice group leadership. That year, Andrea Alliston, who had been the knowledge management lawyer for five years, and Margaret Grottenthaler, our original guru of knowledge management, took a renewed look at our knowledge management strategy in an effort to analyze the key drivers of our success to date and then embed those drivers in our infrastructure going forward. 2008 It borders on trivialization to identify 2008 as a critical year. The economic turmoil came to a head in September with the crash of the credit markets. It will likely be many years before identification of the events leading to the crash will be fully analyzed and assessed and judgments issued regarding the various responses to these events. It is mere understatement to observe that nothing of this degree of economic severity had been experienced since the Great Depression of the 1920s and 1930s. Many in the current workforce may have heard of these times, but no one currently working had ever experienced conditions of that nature. Typical of the mind set in the markets prior to the current crash was a cartoon showing two young investment bankers, each wearing the requisite suspenders, sitting in front of the usual array of flat-screen computers. Moving offstage, with just his back showing, was an obviously older person (in shirtsleeves as well, but with no power suspenders) and one of the two young studs is saying to the other, “Did you hear that old fool? He said that sometimes the markets actually go down!” 2 Canada (Commissioner of Competition) v. Labatt Brewing Co. Ltd. [2008] A-19207, FCA 22, Sharlow J.A., January 22, 2008.

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Given the high degree of uncertainty resulting from the crash, the office began to scale back growth and hiring plans from the highs experienced in 2006 and 2007. Although there was a dramatic slow-down in many areas, Toronto lawyers remained at the forefront on several mandates flowing out of the credit crash, and there were key mandates in other areas that helped to keep the office reasonably busy. One, in particular, was directly related to the asset-backed commercial paper meltdown and even now only the most general description remains appropriate. In general, the firm represented a group of seven foreign bank asset providers in the $32 billion third-party asset-backed commercial paper Companies’ Creditors Arrangement Act (ccaa) restructuring, the largest restructuring in Canadian history. As a deal in itself, it was ranked by Lexpert as Deal of the Year #1 and in the related litigation component as Lexpert Case of the Year #2. Scott headed the deal and Howard the litigation aspects. Braithwaite represented Teck Cominco Ltd. in its $14.1 billion acquisition of Fording Canadian Coal Trust, the Lexpert Deal of the Year #2, and Ian Putnam acted for nrdc Equity Partners in its acquisition of the iconic Hudson’s Bay Company. Peter Hamilton was Canadian counsel for Barclays plc in its $1.6 billion acquisition of Lehman Brothers’ North American operations. Eric Carmona represented icici Bank in its financing of Jubilant Organosys Ltd.’s $225 million acquisition of draxis Health Inc. As the Canadian banks reacted to the need for additional capital due to the financial crisis, Philip Henderson acted for the underwriters in the $2.9 billion common share issue by Canadian Imperial Bank of Commerce, the largest-ever equity issue by a Canadian bank, and Voore advised the underwriters in Royal Bank of Canada’s $2.3 billion common share issue, the second-largest stock sale by a Canadian bank in 2008. Voore also advised the underwriters as Canadian counsel in the us$19.1 billion initial public offering by Visa, Inc., the largest, at the time, in United States’ and Canadian history. In a cross-country class action, Kay in Toronto, Yves Martineau in Montreal, and David Brown in Vancouver acted for Infineon Technologies in a multi-jurisdiction class action alleging a price-fixing conspiracy between dram (dynamic random-access memory) manufacturers. Kathryn Chalmers and Adrian Lang acted for Wyeth Consumer Healthcare Inc. in a class action alleging safety and efficacy issues concerning certain over-the-counter cough and cold medicines for children. In 2008 Toronto’s leadership development program took a new turn when the “E-Curve” was developed as a tool to give guidance on business development and to instill “ownership” at all levels for attracting new work. The genesis of the E-Curve occurred at a dinner at the new partners retreat in February 2008, when Binder said “Work doesn’t just walk in the door; you have to go out and get it.” This spurred a discussion about what

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“going out and getting it” looked like for different people at different stages and in different practice areas. Over the course of the year, Shanin Lott and Diana Lawrence explored this topic more broadly in the office and, after much consultation, developed a visual representation of a person’s development from student to established partner. The graphic started life as the “Business Development Curve” which became the “B-Curve” and then, because “B-Curve” had an association with somewhat mediocre academic achievement for some and because the graphic ended up encompassing more than just business development, it morphed into the “ECurve,” with “E” standing for any number of important Stikeman Elliott power-words, such as “entrepreneurial” and “excellent.” 2009 In 2009 the operational objective was to stay at the top in turbulent times. Although the economic news was bleak, the priority was to develop new business in a dramatically changing world and to keep the lawyers on the ground busy. Toronto scaled back its people growth strategy to a “zero growth plan” (which meant, in essence, continuing to hire at the student level to replenish the natural attrition of associates through the years, but scaling back significantly on the lateral hire of associates) and through this period of economic turmoil the office performed well. Although m&a and lending work fell off dramatically, Toronto lawyers were involved in most of the deals occurring in the market that year. In addition, the abcp restructuring, which started in 2008, continued through 2009 and was allconsuming for a large group of the Toronto lawyers. There was insolvency activity and, as Curtis Cusinato put it, “Lots of people got dirt under their fingernails,” scrambling to get work in the choppy markets. The lesson learned is that hard work pays off. Braithwaite and Chris Nixon of the Calgary office acted for the financial advisors to Suncor Energy Inc. in its $22.2 billion acquisition of Petro-Canada, which was the Lexpert Deal of the Year #1. Pukier represented Ciena Corporation in the us$521 million acquisition of substantially all of the optical networking and carrier Ethernet assets of Nortel Network Corporation’s Metro Ethernet Networks business, ranked as the Lexpert Deal of the Year #3. Byers was the putative monitor for General Motors of Canada in its preparations for a potential filing under the ccaa, the Lexpert Deal of the Year #4, a filing ultimately avoided as a result of a negotiated restructuring. Braithwaite represented Teck Resources Limited in the $1.74 billion cash sale of Class B subordinate voting shares to China Investment Corporation, on a private placement basis, Lexpert’s Deal of the Year #5. Lexpert’s Deal of the Year #6 involved Nixon acting for PetroChina International Investment Company Limited in its $1.9 billion acquisition of a 60 per cent working

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interest in Athabasca Oil Sands Corp.’s MacKay River and Dover oil sands projects. Romano was counsel to abb Grain Ltd. in its us$1.7 billion sale to Viterra Inc., the Lexpert Deal of the Year #10. Singer acted for the underwriters and agents in a $2.163 billion secondary offering and private placement of ing Canada common shares, the largest Canadian secondary offering in 2009. Lewis Smith and Dana Porter acted for Infrastructure Ontario and the Ministry of Transportation in the development of the $1.6 billion Windsor-Essex Parkway project. In the Lexpert Case of the Year #3, Howard and Waitzer represented Neo Material Technologies Inc. in its successful defence against a hostile partial bid by Pala Investments Holdings Limited. D’Silva and O’Kelly defended cv Technologies and certain of its officers and directors in secondary market liability actions in Alberta and Ontario arising out of its cold-fx product, the Lexpert Case of the Year #5. Ranking just behind that action was the team of Kay and Eliot Kolers, acting for Solvay America Inc. in class actions in Ontario, Quebec, and British Columbia alleging a price-fixing conspiracy for hydrogen peroxide, the Lexpert Case of the Year #6. D’Silva was counsel to State Farm Insurance in the Morrow v. Zhang3 case that upheld the constitutionality of damage caps in insurance policies, the Lexpert Case of the Year #8. Braithwaite and Howard acted for srm Global Master Fund Limited Partnership in connection with the proxy contest involving HudBay Minerals Inc. O’Kelly successfully represented Ridley Corporation in having $20 billion worth of mad cow class actions against it dismissed in four provinces. This was the largest class action ever commenced in Canada at the time. Howard and Kolers acted for TeleZone Inc., obtaining the dismissal of an appeal to the Supreme Court of Canada by the attorney general in respect of a jurisdictional challenge that had been instituted by the attorney general. That decision cleared the way for the original action, relating to alleged breach of duty by Industry Canada, to proceed to trial. That year, for the first time, Toronto also instituted a formal succession process to determine who should stand for managing partner for the term from September 2009 to 2012. After consultation with the partners in 2008 and with input from the executive committee, in late 2008 a nominating committee was chosen by the Toronto members of the partnership board, excluding Barrett, who was a potential candidate, to gather input from all partners and to make a recommendation to the partners for an eventual vote. In 2009, members of the nominating committee, which consisted of Byers, Lorna Cuthbert, Dean Kraus, MacKenzie, Nordick, Mario Paura, Singer, and Voore, interviewed all partners individually to solicit their views on potential candidates. The hope was to determine the best 3 Morrow v. Zhang [2009] ABCA 215, June 12, 2009.

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candidate around whom the partnership would have a consensus. The committee recommended that Barrett stand again and he was elected for another term in September 2009. Barrett vehemently denies (with mixed success) that he was kept on in the position of managing partner until he got it “right.” In 2009 Toronto lost two long-standing and highly respected lawyers to cancer – Alison Youngman and Mike Carman. Milton Hess retired from the real estate group in 2009 after almost thirty years. 2010 In 2010, Toronto’s focus was on looking ahead to position the firm at the forefront of the market for the next decade as the economic environment and the firm’s clients continued to experience significant changes. Reorganizations and insolvency-related restructurings formed a large portion of the work in the Toronto office that year, but the firm was also able to attract more than its fair share of the available m&a, capital markets, and litigation work. Major work continued in the Stronach-Magna constellation and Pukier, Waitzer, and Howard represented the Stronach Trust and 446 Holdings Inc. in the share capital reorganization of Magna International Inc., ranked as Lexpert Deal of the Year #1. Byers became the courtappointed monitor of the publishing and broadcasting entities of Canwest Global Communications in their separate restructurings under the ccaa, which resulted in the sale of the publishing assets to Postmedia Network Inc. and the sale of the broadcasting assets to Shaw Communications Inc., Lexpert’s Deal of the Year #2. Braithwaite and Giardullo were counsel to the financial advisor to Kinross Gold Corp. in its us$7.1 billion acquisition of Red Back Mining Inc., the Lexpert Deal of the Year #5. Singer acted for the Ontario Teachers’ Pension Plan in connection with bce’s $3.2 billion acquisition of ctvglobemedia from Teachers’, The Woodbridge Company Limited, and Torstar Corporation, as well as the related $200 million acquisition by Woodbridge of the Globe & Mail assets from ctvglobemedia, all of which constituted Lexpert’s Deal of the Year #7. Braithwaite, Lawson Hunter, and Susan Hutton represented the Potash Corp. of Saskatchewan, Inc. in its defence of bhp Billiton’s us$38.6 billion unsolicited take-over bid. The bid was withdrawn after the historic decision by the Investment Review Division of Industry Canada to reject the proposal. It remains to be seen what the long-term impact of that decision may be with respect to foreign investment in Canada. Voore was Canadian counsel to the underwriters in the us$23.1 billion nyse and tsx initial public offering of General Motors, the largest ipo in history, and the concurrent offering of preferred shares. O’Kelly and Danielle Royal acted for Medtronic

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Inc. in the defence of a product liability class action and obtained the dismissal of certain appeals in the case. Throughout the year, increased emphasis was placed on managing for client value, an initiative focused on developing programs to enhance lawyers’ project management skills and their ability to provide budgets, fee estimates, and fixed fee arrangements in response to increasing fee pressures from clients. Richard Susskind, author of The End of Lawyers?, picked up on this theme when he spoke at the firm’s annual partners meeting about the need for lawyers to be innovative, not only in creative legal thinking but also in the way we deliver legal services. His thesis, despite the provocative title of his book, was not that lawyers would disappear but that while a “bespoke” approach might work for a narrow segment of very high-end cutting edge services, much legal work needs to be more efficiently project-managed and priced so that it is “systematized” or “packaged” to provide maximum value to the client. In 2010, Toronto also started to expand the work the office had been doing over the past decade on diversity and women’s initiatives. The plan was to take the initiatives from being largely internal, work-force-focused programs, broadening them into the client realm, leveraging the firm’s position and reaching clients with similar goals, and connecting more closely with diverse and international clients. Events targeted at women lawyers and clients, such as golf days and networking events, were increased and the diversity committee cooperated with several clients, including Deloitte, Aon Canada, the Royal Bank of Canada, and Toronto Dominion Bank, on events or information-sharing initiatives related to diversity and women’s leadership. The firm was selected as one of Canada’s top Diversity Employers for 2010. 2011 2011 saw business activity first strengthen and then weaken, as economic uncertainty spread from Europe and the United States. Levels of activity in the Toronto office were similarly unpredictable but Toronto lawyers were nonetheless involved in many of the major business matters garnering press coverage through the year. Pillon and McCormack acted for Apple Inc. as a member of the Technology Consortium in the us$4.5 billion purchase of the remaining patents of Nortel Networks Inc., the largest patent sale in history, the Lexpert Deal of the Year #2. We had also acted for Ciena Corporation and Genband in connection with two other major sales of Nortel assets in 2009 and 2010. Jay Kellerman, Nicholls, and Kay represented Baffinland Iron Mines Corporation in the $590 million acquisition by ArcelorMittal S.A. and Nunavut Iron Ore Acquisition Inc., a transaction that began as hostile take-overs by both companies and later became a

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combined friendly take-over, the Lexpert Deal of the Year #6. Putnam acted for Zellers in the $1.825 billion sale of some 220 leasehold interests to Target Corporation, Lexpert Deal of the Year #10. Ontario Teachers’ Pension Plan remained active in the market and Singer and Braithwaite acted for it in its $1.32 billion sale of Maple Leaf Sports and Entertainment to Rogers Communications and Bell Canada. Voore acted for Halton Healthcare Services/Oakville Hospital as designated lenders’ counsel for the successful bidders for the $2 billion hospital development, one of Canada’s largest ppp (public-private partnerships) financings to date. Singer represented the underwriters in the $962 million equity offering by Intact Financial Corporation, pursuant to Intact’s c$2.6B acquisition of axa Canada, the largest offering in Canada in 2011. We also acted on a subsequent $225 million offering of preferred shares by Intact. Byers and Lang defended British American Tobacco in various actions by provincial governments to recoup health care costs. D’Silva represented Baffinland Iron Mines and certain of its officers and directors in a precedent-setting securities class action. During the previous year, Barrett had decided that this would be his last term as the Toronto managing partner, and as a result, succession planning became a front-burner priority in 2011. Building on the process first established in 2009, after consultation amongst the partners, the Toronto members of the partnership board appointed a nominating committee to solicit views from all partners and make a recommendation on who should stand for election in 2012. To facilitate the transition, the nominating committee was to complete its process by the end of 2011 so that the decision as to the new managing partner could be taken in early 2012 and he or she could work with Barrett through the year until the hand-over in October 2012. The nominating committee, chaired by Byers and consisting of Carmona, Kay, Martin Langlois, Legge, John Lorito, Pukier, and Putnam, managed a thorough and collegial process, delivering a report to the Toronto partners late in 2011 that recommended that Jay Kellerman stand for election. Kellerman was elected by the Toronto partners in January 2012. A second objective for 2011 was to re-examine the Toronto office business model for the next decade. In anticipation of changing pricing models for legal services, work on the managing for client value project continued to be a priority. One aspect was the development of a catalogue of alternative fee arrangements that had been used successfully to date. In response to the choppy pace of the economy and workflow since 2008, Toronto also had to re-evaluate what “conservative growth” in hiring and leverage should mean in this new environment. After reviewing past growth projections and recent utilization patterns, the associates committee and management committee concluded that, while the office will continue to recruit significant numbers at the student level, overall growth in terms of the

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workforce was likely to be limited for the foreseeable future if the pace of economic recovery continues to be uneven. The current trend toward globalization may also have an impact on the business model. In 2011 the first significant merger of a global firm, Norton Rose, with a Canadian firm, Ogilvy Renault, occurred, amid much publicity and speculation about the future of local versus global firms. An analysis of the office’s current client base and the market affecting Toronto led the management committee to report to the partnership board that, at this point, the advantages of staying the course in the Toronto market with the firm’s current global strategy far outweighed the advantages of pursuing a global merger, although the firm needs to keep a close eye on future developments. In April 2011, our fourth firm-wide retreat took place in Miami Beach. The firm lost another highly respected partner in unexpected and tragic circumstances when Gary Nachshen died in 2011. 2012 The most noteworthy event for Toronto in 2012 is likely to be the leadership change as Kellerman takes over from Barrett as managing partner in October. Kellerman joined the firm as a partner in 1997, coming from the former Smith Lyons (now part of Gowlings) where he had developed a burgeoning mining practice. The firm had originally tried to recruit him for the Vancouver office through his former partner Tookie Angus, but when he declined the opportunity to move to the west coast, the Toronto office saw its chance to switch gears and persuade him to make a smaller leap to join us in Toronto. Only days after Kellerman came on board, the Bre-X scandal all but halted activity in the mining industry for some time and it is a testament to his talents, resilience, and ability to form strong relationships that he persevered through this period, trying to develop new sources of work, building a team of Stikeman Elliott associates from a standing start, and forging strong bonds with his new partners. He is now renowned as one of the world’s leading mining lawyers, with an extensive practice to match his reputation. He leads the firm’s mining industry group, comprised of lawyers across several offices, served for several years as an active member of Toronto’s associates committee, and is currently a member of Toronto’s management committee. His leadership experience in these roles will serve him well when he takes over from Barrett. When Barrett hands over the reins of leadership, it will be the end of an era for Toronto. He joined the firm as an articling student in 1975, one of only three at the time, and became a lawyer in the corporate section, learning much of what he needed to know from Alison Youngman, then the senior corporate clerk, and was taught how to do title searches at the land

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Registry Office by other clerks. Since his articling period predates the current knowledge management system, none of his student research memos survive, giving him the opportunity to claim (perhaps correctly) that he never wrote any. He rose quickly through the ranks as a young lawyer and became a partner in 1982. During his years of practice, he has built a premier practice in private equity, finance, and corporate commercial, becoming one of the leading lawyers of his generation in Toronto. The Toronto office has prospered under his leadership and he leaves it exceptionally well positioned for the coming decade.

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chapter 4

The Rest of the Family

Although we are a single firm and economic unit, we are nevertheless quite different in some of our circumstances and in our many locations. Some offices are newer than others. Some are in different countries and others are considerable distances from the two largest offices. There are different specialties in certain offices, resulting from the nature of legal services required in those jurisdictions and, in some cases, from the particular initiatives of lawyers in the offices. This chapter is intended to convey some of the local flavours and to try to capture the perspectives of the offices as part of the firm as a whole. (Given the dominant size of the Toronto office, which now accounts for half or more of the entire firm, it seemed appropriate to devote a separate chapter to Toronto, rather than to unduly extend the current chapter.) montreal Over the years Montreal has had to adjust to the fact that, although it is the founding office of the firm and was responsible for an overwhelming portion of the firm’s business during the first thirty years of its existence, the situation has changed. It is no longer the largest office and it does not produce anywhere near a majority of the firm’s income, even though it is clearly the second most important in terms of number of lawyers and economic contribution. It functions in what is certainly the most complex business and political environment in Canada, the complications of which are unlikely to disappear or even to diminish in the foreseeable future, and it has to deal with a number of different considerations that do not affect any of the other offices. Montreal is, predictably, concerned with the balance of French and English in the firm, especially in the Montreal practice. There was a time when it was very difficult to attract francophone lawyers and students. The ques-

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tion was why, as a francophone, would you come to this “English” firm? Simplistic and emotionally based as the question may have been, it was nevertheless effectively used by many firms recruiting against us and had an impact on the way the firm was perceived by potential clients among the emerging “Quebec Inc.” group of Quebec-based corporations. It is part of the nature of having different offices that certain initiatives tend to be concentrated more in one office than in others. Thus, while Toronto was building up several of its practice areas, partly to satisfy existing demands and partly in anticipation of significantly increased expectations of work to come, the Montreal office had already developed a recognized expertise in securities, energy, m&a, tax, employment, and insurance. Its challenge was to sell itself to the “Quebec Inc.” companies, which, at least initially, had a marked preference for firms perceived as francophone and did not consider Stikeman Elliott as having sufficient francophone depth to be on their lists of preferred providers of legal services. It was not until leaders, such as Pierre Raymond in securities, JeanMarc Huot in m&a, Erik Richer La Flèche in energy and power, Louis P. Bélanger, Suzanne Côté, and Michel Décary in business-related litigation, and Guy Masson, Luc Bernier, Pierre Martel, and Marie-Andrée Beaudry in tax, emerged that some of the barriers began to fall. Whatever the shortcomings of the approach, the balance has now altered to the point that the issue has become almost moot and, as “Quebec Inc.” has come to appreciate that the world is bigger than Quebec, the issue with respect to the provision of legal services on a business deal has shifted to who can do the job most effectively. In addition to the recognized local expertise, as “Quebec Inc.” began to look beyond Quebec, the importance of the Montreal office as part of an experienced national and international network became a distinct advantage. On the other hand, the practice of law in Montreal has changed dramatically in recent years. Many of the “old” firms have disappeared or been merged into newer firms, many of which are not bothering to maintain even a trace of what were once powerful and influential legal giants in the former business capital of Canada. It is a fact of legal life today that young talent is mobile and can command market-based compensation. If firms are not willing to pay their lawyers, there is no incentive, nor reason, for them to remain. They have their own lives to live and need not be indentured to a particular firm for life. In addition to increased recognition of the importance of attracting and retaining talent, the old “sink or swim” methodology no longer applies, even though every effort is made to ensure that responsibility is assumed by our lawyers as soon as possible. There is a much greater focus on mentoring and performance review, so that young lawyers know better what to do and how they are progressing. Notwithstanding the financial crisis that was on the horizon in

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2007, the firm maintained its policy of taking the worry out of finding a job after articling by guaranteeing employment to all of its articling students for at least one year following their call to the Bar. No other large firms maintained such a policy during this period. The big change in the Montreal practice environment came, generally, with the decision of Oslers to open an office in Montreal. This was the first time that one of the big Toronto firms had decided to have more than a minimal representational office in Quebec and to achieve this without a formal merger with an existing Montreal firm. It was somewhat like the Stikeman Elliott model, in the opposite direction. There was, of course, considerable aggressive recruiting, which resulted in a diverse group made up of lawyers from many of the Montreal firms. Regardless of the makeup, it is now a factor on the Montreal scene, enjoying the committed support of its Toronto base. In late 2011, the Supreme Court of Canada rendered its judgment in Reference re Securities Act,1 dealing with the constitutionality of a proposed national securities commission. Practicality and reduction of the costs of a regulated securities market may be economically significant and a matter of rather obvious business sense, but this argument has no resonance in a constitutional debate and a unanimous court consigned the proposal to the trash heap of federal ideas. The federal agency idea had been vehemently opposed by the Quebec, the Caisse de Dépôt, and “Quebec Inc.” generally. Other parties in the case included Alberta, Manitoba, New Brunswick, and British Columbia. Ontario had intervened to support the idea of national regulation. In general, cases of this nature are not opposed on the basis of the intrinsic merits of the particular initiative as much as on the separation of legislative jurisdiction between the federal and provincial legislatures contained in the Constitution Act. The federal government is always willing to extend its own jurisdiction and the provinces jealously guard against any trespass on their legislative authority, especially in matters of education, property, and civil rights. They may be willing to negotiate arrangements of a hybrid nature with Ottawa but will not permit legislative encroachment in their own areas of competence. Tension between the two offices can arise where the initiatives of one office may conflict with the aspirations of the other. No one issue is such that anyone will take to the barricades, despite occasional elements of themand-us. There is also no doubt that the administrative centre of the firm has shifted to Toronto and Montreal no longer has the major role it once had, despite a balance on the partnership board that maintains an equality of representatives between the two offices. Montreal’s share of systems and administration is, increasingly, dealing with the higher costs of a bilingual 1 Reference re Securities Act [2011] SCC 66, January 13, 2012.

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structure and of ensuring that we are sufficiently nimble in both languages, since the demands for legal services at the highest level come from businesses that work in either or both of the official languages. Geographical considerations also affect perceptions as to “ownership” of major clients. It was amusing to note, while collecting material for this work, the different positions regarding major clients and matters on which the entire firm was engaged. On occasion, it was as if the only office that had anything to do with a particular transaction or client was that where the author happened to be taking notes at the time, while other offices were dimly (if at all) perceived as bit players, with no speaking roles. It fell to the Montreal office to manage the increasing challenges of ensuring that services that would increase the speed, efficiency, and quality of our lawyers’ ability to meet the needs of our clients could be delivered in both French and English and from the same technological platform. As anyone who has ever tried to manage even rudimentary bilingual issues will know, this is much easier said than done. Within the larger issue of knowledge management (km), the team in Montreal grew from one lawyer in 2006 to three lawyers and a paralegal by the beginning of 2012, all of whom provide practice support and research assistance to lawyers and students alike. The same group developed a bilingual style guide for the Montreal lawyers and the professional and administrative staff. Considerable work has gone into standardizing many aspects of commercial agreements governed by Quebec law. The capture of legal documents of interest (whether contracts, research memoranda, court proceedings and arguments, or articles) for inclusion in the km system, always a difficult exercise to coordinate, has now been automated. In years past, we had risked the loss of considerable amounts of our legal capital by not ensuring that such materials were identified and made accessible to others working on the same or similar issues.2 Our km director in Montreal, Sylvie Hébert, participates on committees of both the Quebec Bar and the Canadian Bar 2 For those who might enjoy a trip down Memory Lane, when the firm was much smaller and centred in Montreal, this function was achieved through circulation of what were called the “pinks.” Using the tax group as an example, letters and opinions were produced with carbon copies: the original was sent to the client; a blue copy was placed in the file; a pink copy was sent to Heward Stikeman’s secretary (Marjorie Cornell); and a yellow copy was retained by the lawyer’s secretary. The “pinks” were assembled and circulated on a weekly basis to the tax lawyers, which enabled them to keep up with what everyone was working on and to be aware of what opinions had been rendered. It was always a treat for the young lawyers to be able to read the eloquent opinions given by Heward Stikeman, the deceptively short, but powerful prose of George Tamaki, and the Cartesian reasoning of Maurice Régnier.

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Association to review and comment on the new Quebec Business Corporations Act and has established an in-house study group of lawyers to undertake a section-by-section review of its provisions. The renewal of our lease in the cibc building brought with it an allowance for certain leasehold improvements. These were focused principally on improvements to the reception area on the fortieth floor, which were completed in 2009. The outcome has been splendid, unexpectedly so in a building that is beginning to become middle-aged and has a relatively small floorplate. It is widely believed that the investment in this most recent feature was even greater than the original rearrangements made to consolidate our reception area and boardrooms, which were supervised by Sonny Gordon, who often boasted that the firm had given him an unlimited budget for the project – and he had exceeded it. Apart from the cibc itself, we are undoubtedly the largest tenant and, from a historical perspective, the firm was the first outside tenant when the building opened in 1962. Elliott was no fool – if our bank was constructing its own building, we followed. At that time, we occupied only half of one floor, including all lawyers, staff, and the library. The Quebec Government has recently announced a twenty-five-year, $80 billion economic, social, and environmental development project, Plan Nord, for Quebec’s north. While, as is often the case with Grand Visions, little exists in the way of specific plans, the idea resonates and the potential is quite attractive for firms with the expertise we possess. In November 2011, the Montreal office launched a new Plan Nord practice group comprised of Richer La Flèche, Franco Gadoury, David Massé, Frédéric Pierrestiger, and Maxime Turcotte. This group has business and legal expertise in the mining, tax, investment funds, infrastructure, environment, and energy sectors, as well as some experience acting on behalf of First Nations communities. Toward the end of 2009, André Roy became the managing partner in Montreal and the need for someone in the combined role of coo and managing partner that had been filled by Kip Cobbett no longer existed. In the 2009 Montreal partnership elections, the shift toward a newer generation began when William Rosenberg replaced the long-serving John Leopold and, following the departure of Côté, the addition of Marc Barbeau continued that momentum. This reflected the orderly and gradual shift toward new leadership in the corporate section from Sid Horn, Leopold, and Huot to Barbeau, Steeve Robitaille, and Peter Castiel, in litigation from Mortimer Freiheit and Bélanger to Jean Fontaine, Marc-André Coulombe, Éric Mongeau and Martel, in tax from Masson to Bernier, Beaudry, and Gadoury, and in employment from Jean-Pierre Belhumeur and Patrick Benaroche to Hélène Bussières.

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Partners’ Meeting, 2005, Montreal Kathryn I. Chalmers, C. Kemm Yates, qc, Mortimer G. Freiheit, John A.M. Judge

Toronto 2007 summer social Edward J. Waitzer, Jean McLeod, Roderick F. Barrett, Rocco M. Delfino

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Steeve Robitaille, Marc B. Barbeau, Robert Hogan, April 2008

David M. Brown

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2009 Grey Cup Frederick Erickson

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Montreal office 40th floor reception area inauguration Suzanne Benlolo, André J. Roy, Guy Masson

Montreal office 40th floor reception area inauguration Pierre A. Raymond, Jean G. Lamothe, Louis P. Bélanger, Jill K. Hugessen

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Montreal office Grant boardroom inauguration André J. Roy and James A. Grant

Pedal for Kids Montreal, 2010 First row, left to right: Nicole Leong, Nadia Rusak Second row, left to right: Catherine Jenner, Kseniya Veretelnik, Marie-Lou Gauthier

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Vancouver office holiday party, 2011 Jonathan Drance, Hein Poulus, qc, Richard J. Jackson

Toronto office summer social bowling, 2011 – Litigation team Jill Lankin, Mairi MacGillivray, Maria Konyukhova, Daphne J. MacKenzie, Jennifer Legge, Elizabeth Pillon

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Enbridge Ride to Conquer Cancer 2012 – Montreal office team Vanessa Coiteux, Félix Bernard, Maxime Charbonneau, Maria Carreira, Olivier Boulva, Edward B. Claxton, Warren M. Katz, Élise Sauvé, André J. Roy, Marc B. Barbeau, Sophie Roy, Aniko Pelland Not in picture: Andréa Maltais, Tony Figueiredo, Hélène Taylor, Antoine Stundner, Noëlle Laissy, Robert Lemieux

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Enbridge Ride to Conquer Cancer 2012 – Toronto office team Mark Steele, Ron Ferguson, Ruth Elnekave, Jay C. Kellerman, Annie Pyke

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Montreal went through the exercise of developing a five-year plan, which identified three major issues facing the Montreal office. These were, not surprisingly, pressure on fees, a decrease in the demands for legal services, and the inevitability of decreased partner profitability unless the operations were to become leaner. These were simply the local manifestations of problems arising throughout the world as a result of the financial crisis. m&a, the heady wine of earlier times, had all but ceased in Canada and the United States as client priorities shifted to refinancing bank indebtedness, a matter of particular urgency in the illiquid markets of the day. Access to new capital funds was almost impossible. The new, and more desperate, game was restructuring. Our own emphasis shifted to controlling expenses and becoming more efficient. The focus of business development remained on increasing our share of high-end “Quebec Inc.” and crossborder work in the core areas of tax, m&a, securities, and business litigation. We were also fortunate in being able to attract two excellent lateral hires during 2010, Neil Bindman and Warren Katz, complementing earlier recruitment of Bernier and Gadoury. It would be difficult to identify a societal institution that is undergoing more change than libraries. From the earliest days, lawyers have depended on the printed word and the quality of one’s library often determined the quality of the lawyer’s work. While it is far too early to declare the demise of the legal library, there is no room for any argument that denies the radical changes in the content, format, and use of information formerly available only by examination of a text printed on paper, usually in a book. The firm has responded to the need for change and the Montreal office is typical of the activity in all offices. The existing collection and physical workspaces were reorganized for lawyers, paralegals, and students requiring access to the contents of the library. The digital and electronic collection has been enhanced and training programs and guides have been developed to encourage effective legal research using all available tools. We now have a well-trained and experienced team of researchers who offer high-level legal and business intelligence research and monitoring services. The latter services are often used to support business development initiatives. Like every other sector in the firm, the library continues its efforts to make daily work more efficient and participates in all major knowledge management infrastructure initiatives and document management–related projects such as Intranet, Extranet, and Matter sites. The job description of the chief librarian, which might previously have been merely librarian, reflects the new reality: director of information services – library. Most practice groups have summer team-building exercises and the Montreal tax group is no exception. Previously organized by Guy Masson and more recently by Luc Bernier as the new head of the group, these outings

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have been as diverse as watching the fireworks at La Ronde from Masson’s boat, le Pinot, shooting the Lachine Rapids on jet boats, an outing in hot air balloons (in which Jean-Guillaume Shooner missed the landing area and had to carry the equipment back through the fields), to volleyball on an island off Sorel. No activities of this nature occurred during 2009 and 2010, but they resumed in 2011 with a water-skiing outing at Bernier’s cottage on Lac Masson, near Ste-Marguerite in the Laurentians. In the winter of 2009, the entire tax group held a retreat in Quebec City, staying in the magnificent Chateau Frontenac (one of the hotels acquired by Prince Al Whalid in 2006), with its stunning views of the St Lawrence, sights of ice breakers keeping open the channel to Lévis, and the start of the exciting daredevil Red Bull skating race through an ice chute stretching down to the Old City. Apart from the technical aspects of the retreat, fascinating to tax lawyers and incomprehensible to those from other practice groups, there was also a team-building exercise and a visit to an ice hotel. The team-building activity involved the construction of an igloo, a project accomplished in less than half the usual time (tax lawyers are accustomed to building “structures”). Protocol then required that the structure be demolished, which proved more difficult than anticipated. Twenty people jumped up and down on it, to no avail. The eventual solution involved Ron Durand and Masson holding on to each other and jumping in unison on the centre of the roof, a good quarter of a ton, hard at work. They were apparently getting nowhere, but no sooner had Durand announced that the igloo would never go down when he fell through the roof and landed six feet below on the ground. Somewhat less dangerous was our family night at the Bell Centre on a Friday evening in January 2012, when more than 550 employees, family, and friends skated and dined on the Centre’s haute cuisine of hot dogs and chips. The evening was capped off with a game between the Toronto and Montreal offices – a precursor to the last regular season game between the last-place Montreal Canadiens and the Toronto Maple Leafs, which in the 2011–12 season could easily have been dubbed the Cellar Bowl. We had an interesting mandate from a private banking organization in Europe to review and update a contingency plan first developed during the Cold War, when the possibility of the former Soviet Union crossing the Rhine could not be wholly discounted. In Europe, the prospect of war or confiscatory legislation or action is a constant concern and our job was to anticipate what might happen (including major social or financial disruptions), to define trigger-points for defensive measures, to plan for the timely movement of assets and legal control over such assets, and to have people in reserve, ready to act on a moment’s notice. Many years earlier, there had been an example of the impact of such measures when the Governor of Bermuda was assassinated and imposition of special measures had sus-

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pended the usual social and legal order. This had caused hundreds, perhaps thousands, of trusts then located in Bermuda to move automatically to other jurisdictions in which the normal rule of law still applied. Our mandate was a challenging exercise, as much in anticipating the many contingencies as in devising effective counter-measures. In our case, the client had a fascination with Jules Verne, which led to naming the master trust the “Nautilus” Trust, evoking a safe passage across the sea from a troubled land. We did, however, stop short of referring to the chief contingency plan officer (a very dignified and reserved senior executive) as Captain Nemo. The firm’s Montreal connections with Canada’s most internationally recognized university, McGill, have been profound. Barbeau has taught for some fifteen years at the Faculty of Law and several others at the firm have taught courses there or lecture regularly as guest lecturers. Jim Grant served on the audit and finance committee and the Faculty of Law advisory board for several years prior to his retirement from the firm. Jim Robb was also a member of the Faculty of Law advisory board for many years and the advisory board has established the James A. Robb Award for Exemplary Volunteer Service to the Faculty, which was presented to Barbeau in 2012. Mike Richards has been a member of the board of governors for many years and chairs the important building and property committee and, for a few months after his retirement as a partner of the firm, stepped in as interim vice principal, finance and administration, following the resignation of François Roy. Kip Cobbett has become chair of the board of governors, in a challenging period for Quebec universities, and in 2012 chaired the search committee for a new principal of the university. After serving as chair of the board of governors for five years, the author was named chancellor of the university and, in 2009, completed two five-year terms in that office, as well as twenty-three years as a governor, and has been appointed chancellor emeritus of the university. He continues to serve as chair of the advisory board for the Faculty of Agricultural and Environmental Sciences, as chair of the McGill Sports Hall of Fame committee, and as a director of McGill-Queen’s University Press. 2012 will mark the end of Pierre Raymond’s valued service as chair of the firm. The next chair had not been elected at the time of writing but there was only one candidate, Bill Braithwaite from the Toronto office. His chances of winning a one-candidate election seemed good enough to risk going to print. c a l g a ry The Calgary office entered its second decade poised to execute its strategic plan of increasing the firm’s practice in the energy and other sectors of the Alberta economy. The partnership board had identified the Calgary market

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as having the greatest potential for growth in the firm. It strongly encouraged and supported the expansion of the Calgary office, which, with that endorsement, embarked on a period of dramatic growth. On February 1, 2002 there were twenty-nine lawyers (twelve partners, seventeen associates) in the Calgary office. By October 2009 there were fifty-two lawyers (twenty-six partners, twenty-six associates). Like the growth of the office in the first decade, the growth over the period from 2002 to 2009 occurred in typical Stikeman Elliott fashion through a combination of lateral hires and internal development rather than by merger. One of the first hires during this period was designed to consolidate enmax’s commercial and regulatory work in the firm. Barry Emes had excellent contacts with enmax’s executive leadership team and had represented the City of Calgary in its planned sale of enmax, which was aborted when Dave Bronconnier was elected mayor of Calgary in October 2001. Emes was attracting a variety of commercial mandates, but enmax’s regulatory work was in the firm grasp of Lou Cusano and David Wood. Cusano and Wood were at Code Hunter when they started doing the enmax work. That work moved with them when they joined Donahue & Partners. When Donahue folded in the wake of the Enron collapse, Donahue’s parent, e&y, arranged for the transfer of the Donahue lawyers to McCarthy Tétrault. That move was problematic for Cusano and Wood for a variety of reasons, including the fact that one of McCarthy’s biggest clients was TransAlta Corporation and TransAlta and enmax were competitors. This conflict created an opportunity for the Calgary office to recruit Cusano and Wood. Overtures were made, discussions occurred, and we quickly got close to a deal. As part of the process, Glenn Cameron, then the Calgary office managing partner, was required to escort Cusano to the Toronto and Montreal offices to meet with partners there. They arrived in Toronto early Sunday night. Cameron thought that Cusano, being Italian, would enjoy the food at Sotto Sotto. They begged their way into the restaurant without a reservation. It was packed but they agreed to stand in the entrance while they waited for a table to become available. Adjacent to the entrance was a private area where a group was dining behind a curtain. After half an hour or so, they were still waiting for a table when the curtain to the private dining area parted and a short, unusually beautiful woman asked them to excuse her as she walked past them to the washroom. A visibly excited Cusano spun around and announced with a combination of joy and amazement, “That’s Sharon Stone!!!” Sure enough it was. Shortly after seeing her, Cameron and Cusano were escorted to their table, to order food and drinks. Ms Stone dominated the conversation over dinner in her group. Every time the conversation drifted around to whether Cusano and Wood were going to join the firm, she

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would walk by again. By the time dinner was over, Ms Stone and her party had left. Content with the food, drinks, and the brush with fame, Cameron and Cusano walked up the stairs and out of the restaurant, where a cab was waiting for them. At the top of the steps, lurked a young man with a vaguely familiar, menacing air. He lit a cigarette as they walked by. Once in the cab Cusano again spun around to face Cameron with the same look of joy and amazement as when Sharon Stone had walked by them, but more so. “Do you know who that guy is?” he exclaimed to Cameron (who did not know). “That’s Michael Imperioli of the Sopranos!” Overwhelmed with euphoria he reclined in the back of the cab and confirmed to Cameron that he had decided to join the firm. “You know Glenn,” he said, “you didn’t have to get Michael Imperioli to be there tonight. You had me at Sharon Stone.” Not all the subsequent recruiting involved the use of Hollywood stars. Emes and Cameron had put David Robottom on the top of their wish list from the beginning. They had advanced some expressions of interest to Robottom in the early years of the Calgary office, but at that time Robottom was running a busy securities and corporate law practice at Milner Fenerty. When Milner Fenerty merged with Fraser Beatty to form Fraser Milner Casgrain, Robottom quickly ascended in fmc’s governance structure. Ultimately he became ceo of the firm, the first time a lawyer from a national firm’s western office had advanced to become ceo. When his tenure as ceo was over in 2003 Robottom started to consider alternatives for the next stage of his career. Those alternatives included joining Stikeman Elliott. He was impressed by what the firm had accomplished and intrigued by the opportunities to grow a practice at the Calgary office. A series of meetings occurred. Ed Waitzer, Emes, Cameron, and others participated. The secrecy of the negotiations was critical. When asked where those meetings with Robottom occurred Cameron said, “Oh, you know, we went to those places that everyone always goes to because no one ever goes there.” Again Cameron went east, this time to introduce Robottom to the partners in Toronto and Montreal. No celebrities participated on this occasion. Robottom joined the firm on February 1, 2004. The announcement of his move to Stikeman Elliott was national news and the Financial Post’s Legal Post ran a feature article on the story with a photo of Robottom that covered the top of the page. With the arrival of Robottom and others the Calgary office started to develop critical mass. Shortly after Robottom’s arrival, David Lefebvre, David Taniguchi, Barbara Johnston, Nick Kangles, and Craig Story joined. Other laterals during the period from 2004 to 2009 included Lisa McDowell, who had practiced in the Toronto office before leaving to work at an in-house position with Magna. McDowell came to the Calgary office in 2005 and was admitted to the partnership in 2009.

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Mike Mestinsek joined the Calgary office from Gowlings in 2007 to head up the litigation department. Mestinsek’s colourful personality and love of bodybuilding is a deep well of material for the students’ skits at Calgary office holiday parties. Gary Clarke was a partner at fmc in Vancouver. He crossed the Rockies to join the Calgary office in 2007. Doug Richardson, a leading tax lawyer who had built a nine-person tax group at Blakes in Calgary, joined the Calgary office in 2008. Not all growth was attributable to laterals joining the firm. Brad Grant articled with the firm in 1996 and became a partner in 2004. Grant’s practice focused on transactions in the energy sector and derivatives. He now is the head of the energy practice in the Calgary office. A significant number of Calgary’s legal and business communities are from Saskatchewan, having left that province for the opportunities in Alberta. Grant is one of this large group of Saskatchewan ex-pats. He wears his Rider Pride on his sleeve. Saskatchewan victories are causes for celebration, while the days after Roughrider losses can be solemn affairs. Like Grant, Harry Andersen also articled with the firm and focused his practice on energy and derivatives transactions with an emphasis on the pipelines, processing, and other facilities required by oil and gas producers. Andersen was admitted to the partnership in 2009. Unlike Grant, Andersen is a Stampeder fan. While at the University of Calgary, he played offensive guard on the Dinos football team that won the Vanier Cup in 1995. Andersen’s loyalty to Calgary football teams runs deep. So when Calgary plays Saskatchewan, whether at the university or professional level, either Grant or Andersen usually gets flagged by the other for excessive celebration. Grant recruited Keith Chatwin to join the office in 2001. Chatwin had been practicing securities law at Borden Ladner Gervais. Grant and Chatwin knew each other from the combined mba/llb program at the University of British Columbia. Chatwin’s focused intensity was a great fit with the office. He quickly became an important member of the teams that worked on a variety of significant transactions over the period, including AltaGas’s conversion into an income trust and Harbinger Capital’s hostile acquisition of Calpine Power Income Fund and related restructurings. Other lawyers who joined the partnership during this period were Michael Witt (2003) and Michael Dyck (2008). Both started their careers in Edmonton, Witt at Parlee McLaws and Dyck with Reynolds Mirth, and both have developed real estate law practices. Foreign Investment in the Resource Sector During its second decade, the Calgary office’s practice took on a greater international tone as foreign investment descended on the Canadian oil and

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gas sector. The office had a history of representing US clients in their northbound investments but increasingly acted for other foreign investors in various transactions involving Canadian energy companies, including Russian and, more recently, Chinese investors. Cameron and Christopher Nixon had developed a relationship with Akin Gump’s Moscow office that resulted in their representing Lukoil Overseas Investments on a number of matters, including Lukoil’s $2 billion acquisition of Nelson Resources Limited in 2005. In that deal, Lukoil, based in Moscow, took over Nelson, based in London, to acquire Nelson’s properties that were located in Kazakhstan. Nelson was listed on the tsx. Cameron and Nixon skilfully documented hard lock-ups between Lukoil and Nelson shareholders holding more than 66 per cent of Nelson’s shares. With those lock-ups in hand, Lukoil sat down with Nelson management to negotiate the acquisition. Nelson management was reluctant to sell the company, but, as Lukoil pointed out, they had no choice. In fact Lukoil had been so forceful in making this point that Nixon and Cameron got calls from Nelson’s distressed Canadian counsel complaining about Lukoil’s aggressive negotiating style, saying it went way beyond what was acceptable behaviour in the North American context. The acquisition was to be documented by an amalgamation agreement. The final negotiations regarding that agreement were supposed to take place in Zurich, but the Swiss border authorities would not allow the Russians into the country. As a result, the negotiators for both sides drove to a hotel in rural France that had no business centre, computer service, or telecommunications equipment other than a conference phone in one of its private dining rooms. Cameron was just about to leave the office for the day at about 8:00 p.m. Calgary time when his phone rang. On the other end was the room full of negotiators in France. Our colleague from Akin Gump advised that Lukoil and Nelson had agreed that they would page flip the amalgamation agreement in “real time,” settle on the wording, and Stikeman Elliott would process the changes so that when the call was over the revised agreement in agreed form could be sent by facsimile and email, which would then be signed by all parties. Cameron raced down the hall to convey this to Nixon. The two of them spent the next nine hours on the phone debating points, listening to the changes, and, with the assistance of the graveyard shift of word processers, simultaneously turning out the final agreement. Somehow they found an email address to which the agreement could be sent. By six o’clock the next morning the amalgamation agreement was signed and Nixon and Cameron stumbled out the door of the office after their Hard Day’s Night. Lukoil also asked the Calgary office to represent it regarding the $5 billion arrangement between Petrokazakhstan and the Chinese National Petroleum Corporation (cnpc). Nelson and Petrokazakhstan were co-owners

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of oil and gas properties in Kazakhstan and a dispute between them as to whether the Nelson or cnpc transactions triggered rights of first refusal was being arbitrated in Stockholm. Petrokazakhstan was applying to the Court of Queen’s Bench in Calgary for approval of its proposed arrangement with cnpc. Lukoil did not want that arrangement to proceed until the arbitration was concluded and any rights that might be confirmed by the arbitration were exercised. Cameron asked Sean Dunphy from the Toronto office to argue Lukoil’s objection to the arrangement before Chief Justice Neil Wittmann. The application was scheduled for 9 a.m. Cameron and Dunphy agreed to meet at 7 a.m. to prepare. The workday starts early in Calgary, as Dunphy soon discovered. Lawyers, investment bankers, stock brokers, and others are frequently at their desks by 7:00 a.m. or earlier, different from the later start times that Dunphy was used to in Toronto. “What kind of (expletive deleted) city is this where there is a fifteen-minute line-up for a Starbucks at seven in the morning?” Dunphy snarled after arriving late for his meeting with Cameron. The courtroom was packed. Dunphy and Cameron were hopelessly out-numbered, the only ones of the hundred or more in attendance who were opposing the application. That did not bother Dunphy. After a barrage of arguments from Petrokazakhstan, cnpc, and others in favour of the arrangement, Dunphy calmly and carefully explained Lukoil’s concerns to the court. Chief Justice Wittmann listened with increasing interest. He then announced that he had to consider Dunphy’s arguments very carefully and would accordingly adjourn Petrokazakhstan’s application so that he could write a judgment. The chief justice suggested that while he was doing this Petrokazakhstan and cnpc might want to speak with Lukoil about resolving their differences. It was a huge victory against impossible odds. On returning to the office, Dunphy, Cameron, and Nixon immediately called Lukoil’s general counsel to share the good news, forgetting that it was 3:00 a.m. in Moscow. The general counsel answered the phone with a grumpy hello, not happy to have been awoken. His mood changed quickly however as Dunphy – speaking in fluent Russian – told him of the improbable victory. The Russians visited Calgary on a couple of occasions. They discovered that everyone in the city closely monitors what goes on in the oil and gas business (the “Patch”) and the related stock-market activity. The Russians, obsessed with secrecy, were surprised and alarmed when a cab driver recognized what country they were from because of their accents. The cabbie correctly guessed that the Russians were in town to look for acquisitions in the oil and gas sector and helpfully volunteered a suggestion to the now slack-jawed Russians that they acquire the very company they were in Calgary to pursue. An unlikely coincidence to be sure, but the startled Russians spent the rest of the day looking for microphones

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and other eavesdropping devices that might have been hidden in their briefcases and hotel rooms. Hong Kong and China have long been markets on which the firm has concentrated. Through Brian Hansen’s relationship with Cheung Kong Infrastructure (cki) and Hong Kong Electric (hke), the Calgary office represented those companies for purposes of due diligence on some electricity transmission and distribution assets in Alberta that cki and hke were interested in acquiring. Although those deals did not proceed, in 2007 cki and hke returned to Calgary to acquire TransAlta Power lp in a friendly takeover bid that resulted in their partnering with TransAlta on electricity generation assets in Alberta and Ontario. Cameron and Nixon assisted cki and hke on that transaction and related financings and, in coordination with Hansen, on a number of subsequent matters. Lefebvre had joined Waitzer and Hansen on the firm’s China initiative. He was developing relationships with Chinese companies that were interested in acquisitions of oil and gas properties. In 2007, Lefebvre completed the $2 billion acquisition of Nations Resources for citic Resources. Then in 2009 he represented Sinopec in the Canadian law aspects of its $10 billion acquisition of Addax Petroleum. Nixon was also busy with Chinese acquirers of oil and gas properties. He was involved with the teams that represented Sinopec in its acquisition of an interest in the Northern Lights Project, Petro China in its pursuit of Verenex (a Libyan-asseted tsx vehicle, the acquisition of which was stopped by the Libyan government), and other transactions that were considered but did not proceed. Nixon was also called to represent Sinopec in its $2 billion acquisition of Tanganyika Oil Company. Two factors combined to cause the Chinese to focus their oil and gas investments on Canada. First, China National Offshore Oil Corp. (cnooc) unsuccessfully bid to acquire Unocal Corp. in 2005. Unocal was sold to Chevron after cnooc’s bid was withdrawn in the face of unprecedented political opposition. This hostile reception in the United States cooled China’s interest in making investments there. Conversely, Canada has and continues to welcome Chinese investment in the Canadian energy sector. Second, China, like the rest of the world, woke up to the enormous potential of Alberta’s oil sands. This set the stage for the Calgary office to represent Petro China when Petro China decided to make a major investment in the oil sands. The result was Petro China’s 2009 acquisition from Athabasca Oil Sands (aos) of 60 per cent working interests in the MacKay River and Dover oil sands projects for $1.9 billion and related joint venture and financing arrangements with aos. The deal included a unique put/call option that enabled PetroChina to acquire the remaining 40 per cent working interests in the MacKay and Dover projects in certain circumstances. It was the largest investment by a

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Chinese entity in the oil sands to that time and set the template for many other transactions involving Asian investors that were to follow. The deal required intense negotiations among PetroChina, aos, and counsel involving many complex issues not only regarding the purchase but also how Petro China and aos would manage their co-ownership interests in the projects after the closing. Nixon, Chatwin, and Andersen were on the front lines of those negotiations. On several occasions while the deal was evolving team members travelled to Beijing to work with the client from its offices there. Andersen made the first of these visits. While in Beijing he discovered that the food there did not agree with him. He also contracted a severe case of “tourista” that confined him to his hotel room so that he was not too far from the bathroom. An important conference call was scheduled in the midst of all this. Not one to let the team down, a weakened Andersen participated in the call from the bathroom in his hotel room. By the time he returned to Calgary, Andersen had lost thirty pounds. On a subsequent occasion both Nixon and Andersen travelled to Beijing. Nixon reported that when Andersen, looking exactly like what one would expect of an offensive guard, walked around the streets of that city he was viewed with wonder by the smaller Chinese. Nixon attracted no such attention. The Midstream While the Calgary office’s practice with international clients was expanding it was also developing a very significant expertise in transactions involving pipelines and other midstream facilities and regulatory proceedings in respect of those facilities. Fred Erickson became an expert in all aspects of the petroleum liquids business in Canada and an advisor to participants in that sector. He, Grant, McDowell, and Andersen regularly represented bp Canada, AltaGas, Pembina Pipelines, and other strategic investors in transactions involving midstream assets. David Holgate provided bp Canada with regulatory advice regarding its liquids business. Cameron and others represented Terasen Pipelines (before it was acquired by Kinder Morgan) in the development, construction, and financing of the Corridor Pipeline, the acquisition and financing of the Express Pipeline System, and other significant transactions. Kemm Yates and then Holgate provided pipeline regulatory advice to Terasen on these matters. Yates became the lead outside regulatory counsel to TransCanada PipeLines (tcpl). His numerous significant assignments for tcpl included the regulatory work on the Keystone Pipeline that saw part of tcpl’s existing gas pipeline converted into an oil pipeline to take oil from Alberta to the United States. Yates’ work for tcpl led to commercial and corporate finance mandates undertaken by Lefebvre, Story, and others in the office.

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Six Shooter Saturday The Calgary Stampede has made the city world famous for a century. Those who are not from Calgary are always amazed at how the Stampede takes over the town for ten days and dominates, even at the highest levels, business and professional life in the city. Parties of all types and sizes occur during Stampede. Lawyers are right in the middle of the festivities. The Calgary partners had debated for several years whether to hold its own Stampede party, but had delayed doing so because so much goes on during Stampede that they thought it would be difficult to get any attention from their target market. Then Sandra Rubin came to town and wrote a cover story for the National Post about what all the other law firms were doing for Stampede. They realized they had to do something. The first Stampede party was held in Cameron’s back yard. It was a well-attended, successful event on a modest scale. A good start. Cusano, however, had a vision of a much larger function that would stand us out from the run- of-the-mill parties around town. The objective of the event would be to thank the office’s clients and show the business community who we were. Ever the artful delegator, Cusano enlisted Greg Plater and Lefebvre to help him craft the party that became known as Six Shooter Saturday. The first task was to find a venue. The perfect one became available – the soccer pitch at the Southern Alberta Institute of Technology. Just over the river from downtown and with the city skyline as a perfect backdrop. The second task was much harder. By the April before the party, booking an “act” would be difficult. This task was made even more difficult by the fact that Cusano had decided that everything at the party, including the entertainment, was to be “Stikeman quality.” Accordingly, Plater and Lefebvre recommended that the office think big and book a big name. Unfortunately, by this time pickings were slim. Luckily, very late in the process two recognizable names popped free – Clint Black and Lonestar. The decision would be critical to the success of the event. Expert advice was needed. To break the tie, the committee of two called Plater’s wife, Lori, for advice. The direction was immediate – Clint Black was too “twangy” and Lonestar prevailed. The choice was brilliant and set the event up for success. On the second Saturday of Stampede in 2006 on a beautiful sunny day and starry evening (and the eve of Italy’s triumph in the World Cup, which did not go unmentioned in Cusano’s remarks to all assembled), the Calgary office held what many guests still call the greatest Stampede party they ever attended. In classic Stikeman fashion, Lefebvre arrived late to the party because he was working on a deal, but still in time to see the dance floor packed as Stikeman lawyers and 700 clients and friends danced to Lonestar’s signature song “Amazed” under a beautiful clear sky. The party

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was a huge hit and, fittingly, ended with a shower of fireworks. After more than a decade of extremely hard work, the Calgary office had had its coming out party. The success of the first Six Shooter Saturday ensured that the event would continue. An invite to “the best Stampede party in town” became a valuable commodity. The top ranks of the corporate community in Calgary made space in their calendars for the party. So did representatives from other Stikeman offices and the members of the partnership board, each of whom donned cowboy boots and hats and headed west for the party (or east in the case of Vancouver). Our partners from the east made every attempt to blend in with the western theme but could usually be made out in the crowd. They were the ones with the “western shirts” that inexplicably had French cuffs!3 Over the next few years the high quality of the event, including the entertainment, continued. Lonestar was followed by Clay Walker and Emerson Drive, Doc Walker and Sara Evans, cross-over artist Darius Rucker (of Hootie and the Blowfish fame), and Charlie Major. When the recession hit in 2008, most Calgary firms downsized or eliminated their Stampede parties. But, in true Stikeman fashion, the Calgary office bucked the trend. Rather than eliminate the important event, Cusano decided to add a charitable element in recognition of the hard times that had suddenly hit the city. At the 2008 party the firm made a significant donation to Brown Bagging for Kids, a lunch program in the city for homeless children and youth. In 2009, the Six Shooter focused on Inn from the Cold, a charity that supports the homeless. In 2010, Olympic gold medalist Jon Montgomery conducted a live auction that raised funds for Kids Inn Play, a program that provides safe and fun activities for homeless children. Following the party in 2010, the Calgary office suspended Six Shooter Saturday. Unfortunately, the glorious weather of the first year had been difficult to duplicate. Several of our parties were held in the middle of summer storms that diminished attendance but not enthusiasm. Our guests hit the dance floor and enjoyed the event, rain or shine. Many of the traditions started by Six Shooter Saturday live on, albeit in an altered form. Stampede 2011 found the Calgary office hosting 500 clients and friends for the touring Broadway musical “Wicked” at the Jubilee Auditorium. Although the theme was less western and more magical, the event was a smash hit. And all of the guests stayed dry.

3 The author once had a similar Stampede experience when visiting Calgary. When the flight attendant on the Montreal–Calgary Air Canada flight appeared wearing a large white Stetson, he should probably have realized that it was Stampede time. On arrival, he was the only person in the entire city wearing a suit and tie and, heading for the firm’s offices, was the object of either pitying or dismissive glances.

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The Calgary office continues to focus on reaching out to the community and its support of Inn from the Cold and other charities continues to grow. Although the Calgary office started the journey by simply seeking to “join the party” during Stampede, it ended up setting a new standard for hosting and entertaining its clients and, just as important, for giving back to the community. Friday Morning Lights Grant and Chatwin organized Friday morning basketball games at the Talisman Centre, starting in 2006. These games have become part of the culture of the Calgary office. Although all firm members and alumni are welcome to participate, the Friday morning scrimmages are not for novices. The skill level and intensity of the games run high, with Plater, Grant, Chatwin, Brad Squibb, Kyle Brunner, and others showing flashes of brilliance, in a relative sense. Regardless of the intensity, this Friday morning ritual has served to bring together both young and old and current and former firm members in spirited affairs characterized by humour and camaraderie. Regrettably however, the sedentary lifestyle of the lawyer is not sufficient conditioning for the athletic demands of these Friday morning games. As a result a number of early participants have retired, including “Sweet” Lou Cusano and Brad “I swear to God I could dunk when I was 18” Grant. Grant’s retirement was perhaps the most noteworthy, because it was not precipitated by anything that occurred during a game … but rather by his attempt to showcase his athleticism afterwards. In 2011, following a rigorous hour of basketball, Grant felt the adrenaline surging and the need to elevate himself to previously unknown heights in order to throw a dramatic dunk. Unfortunately, the elevator stopped slightly below the top floor and Grant ended up slamming the ball … into the side of the rim … and collapsing awkwardly. The bad news: torn anterior cruciate and medial collateral ligaments for his efforts and the end of Friday morning basketball for him. The good news: the ball actually went in. The Changing of the Guard One of the more significant developments of the Calgary office’s second decade was the transition of leadership from the founders of the office to the next generation. Emes had been managing partner of the Calgary office from 1995 until 2001. He also served on the partnership board from 2000 till 2004 as one of three representatives elected by the partners from outside the Montreal and Toronto offices. He ultimately retired from the firm and the practice on July 31, 2006 to focus on his directorships with PrimeWest, Realex, and Parkbridge Lifestyle Communities. Emes had been one

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of the driving forces behind the Calgary office. His razor-sharp intellect, deep knowledge and understanding of the law, and incredible work ethic are legendary, as is his eccentric personality. As documented in the Calgary section of The First Fifty Years, life was never dull when Emes was around. His wit and wisdom filled a large space in the office. Emes dedicated himself to the success of the Calgary office. He worked tirelessly to see it grow and achieve its potential and made an enormous contribution towards our accomplishments to date. After retirement, he continued to engage with the firm, retaining Waitzer and Corbett to represent the special committee of the Prime West board when the Abu Dhabi National Energy Company proposed a $5 billion takeover. The Calgary partners asked Cameron to take on the managing partner position in 2001. And when Emes retired from the partnership board in 2004 Cameron also succeeded him as the office’s representative. The office was growing rapidly during this period. Management was taking more and more of Cameron’s time at a point when his busy practice was also demanding his attention. In 2005, Nixon, Robottom, and Erickson sought to lighten Cameron’s burden of the dual roles of managing partner and Calgary office partnership board representative. They identified Cusano as the next managing partner of the office and in September of 2005 Cusano succeeded Cameron in that role. Cameron continued as Calgary office partnership board representative until 2009 when Nixon took over. Cusano brought a different approach to the role of managing partner. The office had earned a reputation as an all-work, no-play environment. Cusano, with his warm and personable manner, sought to change the culture with the promise of a better balance to life and work. He also presided over a period of more rapid growth than the Calgary office had ever experienced and record financial results. By the time Cusano retired as managing partner in September 2010 the office had fifty-two lawyers. Erickson succeeded Cusano as managing partner of the Calgary office. He undertook the difficult task of guiding us through the recession and re-focusing the office to deal with an increasingly competitive environment where the capacity of local firms to work on transactions exceeded the amount of work that needed to be done. The Great Recession The worldwide recession that started in the fall of 2008 had a significant negative impact on the Calgary office. The practice was focused on representing clients in major transactions. The office also had a substantial energy regulatory practice. The recession had been preceded (and some say caused) by record high prices for oil and natural gas. As a result, when the recession occurred, energy companies in the Calgary market were flush with cash.

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They did not need or want debt and they did not need and were not prepared to issue equity at depressed prices for their stock. In addition, m&a activity declined dramatically, since few companies were prepared to sell themselves for a fraction of what their stock had been previously trading. All this resulted in a slowdown of transaction activity in the Calgary market. This slowdown coincided with several irreconcilable conflicts between clients in our regulatory practice that caused us to forego work and ultimately resulted in Holgate leaving the firm in 2008 and Yates leaving in 2010. A change in circumstances, which removed much of the potential for conflicts of interest in the regulatory field, led to Holgate’s return to the firm in July 2012, to the delight of the Calgary office and the firm as a whole. The Calgary business community is constantly churning. Companies come and go at a brisk pace. Lawyers here live in a similar environment, driven by the desire to maximize their career potential. Stikeman Elliott has a long history of its lawyers leaving the practice to pursue successful careers in industry. So it has been for the Calgary office. Robottom left the firm in 2006 to join Enbridge as its vice president and general counsel and to become a member of its executive leadership team. This was a serious loss for the office as he had made an enormous contribution to its development and stature during his time with the firm. He has, to the surprise of no one, done very well at Enbridge and we are delighted that he continues to be a friend of the firm, always available for a discussion and often providing helpful advice and perspective. Similarly, Harry Andersen, Chuck Kraus, and others have left the firm to take up in-house positions in oil and gas and pipeline transportation companies located in the city. The impact of the recession and the resulting departures combined to reduce the number of lawyers in the office to thirty-five by 2012. The Look Ahead The Calgary office embarks on its third decade at a size and in a position similar to that at the start of 2002. Its objective continues to be to participate in the high profile transactions that occur in the Calgary market and to be regarded as one of the go-to firms in the same way that the firm is seen in Toronto and Montreal. To do this will require the work ethic and dedication to the practice exemplified by Heward Stikeman and the utilization of the full resources of the firm to the benefit of our clients. The office has transitioned from the founders to the next generation. That next generation includes new partners, like Chip Johnston who joined the firm in 2011, who have a vision for the future success of the office and the resolve to execute that vision. Alberta in general and Calgary in particular have been and continue to be places of unique opportunity. The Calgary office is well positioned to take full advantage of those opportunities.

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The author was invited to speak to the Calgary office in November 2011 to discuss leadership and the challenges ahead for the Calgary office, viewed against the background of the early days of the firm and the qualities of its leaders and members during that period. At the time of the address there was, perhaps, some doubt as to whether there was a committed vision of what needed to be done and whether it was even possible. Reminding the Calgary contingent of some of the challenges that had faced the firm in the past and of the can-do willingness to take on imaginative solutions that had led to our present pre-eminence, I suggested that there was no reason the Calgary office could not develop its own vision. A new city by Canadian standards, it shows every promise of growth, attracting smart and ambitious young people, and could well be the crucible in which the future Stikeman Elliott emerges. If the office determines its vision of the firm in the twenty-first century, it can certainly accomplish whatever is necessary to make that vision real. va n c o u v e r When Heward Stikeman, with typical enlightened impulsiveness, told Li Ka-shing in early 1988 that, if Li acquired the Expo lands, the firm would open an office in Vancouver, no one, least of all Stikeman, had any idea how that commitment could be fulfilled and how the office would eventually develop. Pending a decision from the Supreme Court of Canada regarding multi-jurisdictional law firms in Canada, it was technically illegal to have started a practice in Vancouver, but, short of making it as difficult as possible to get Brian Hansen qualified to practice in British Columbia, no one seemed inclined to be fully confrontational on the issue and we managed to stay under the provincial radar until the Supreme Court of Canada’s ruling was issued. Since that time, and particularly since the late 1990s when a full reorganization and realignment of the Vancouver office occurred, the office has continued to grow in importance. Admittedly, the Concord Pacific platform from which to grow could hardly be equalled, but inheritances have been squandered in the past, so some credit can be justifiably be taken for the subsequent success of the office. British Columbia is not an uncomplicated jurisdiction and its political history accounts for much of the complication. It begins with its isolation from central and eastern Canada and the much-delayed delivery of the promised railway that had been a major factor in the decision of the province to join Confederation in 1871. The economy was largely resource-based and suffered from the boom-or-bust syndrome apparently inherent in that sector of the economy, which continues to this day. For many years, Vancouver was essentially a branch-office town for businesses whose decisions were taken elsewhere and merely implemented there. Labour

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unions wielded significant political and economic leverage and were assisted in their efforts by provincial governments regularly elected with their active support. Real estate development was largely controlled by local entrepreneurs and controversial public companies, such as Nelson Skalbania and Daon Development. On the other hand, from the firm’s perspective, British Columbia was an attractive market for providers of legal services for many of the same reasons and it was into this market that the firm moved with such optimistic expectations. Consolidation of the Forest Industry In the early 1980s, there were something in the range of twenty to thirty public companies in the forest industry, which accounted for 35–40 per cent of the province’s gnp. The industry was controlled through a forest tenure system administered by the provincial government on a basis that gave the government effective carte blanche over both ongoing forest operations and any transfers of ownership. This was not dissimilar to the situation affecting the main energy companies, locally controlled utilities (Westcoast Transmission, bc Gas, and bc Telephone) whose ownership and control were subject to government control and approval. The functional predecessors of today’s rbc Capital Markets, cibc World Markets, and Toronto-Dominion, each had several representatives in British Columbia (from the east, of course) pitching business and doing deals in the industry. Today, there are only two or three major forest companies and the firm has played a disproportionate role in that consolidation process. Starting in the 1990s, the firm acted on two of the more significant deals – privatizing MacMillan Bloedel and selling it to Weyerhauser, and then re-organizing Mitsubishi’s forest holdings in British Columbia, principally through privatizing and selling its Crestbrook Forest Products subsidiary to Tembec. In the following decade, the firm was active in a series of transactions for Slocan Forest Products, then for Canfor and its spun-off pulp subsidiary, Canfor Pulp, then for Abitibi as it restructured its British Columbia holdings as part of a company-wide reorganization described elsewhere and, most recently, for Tembec in disposing of its British Columbia holdings. In relation to Slocan, we acted on several “strategic reviews” in the 2001–03 period as it considered multiple offers to merge, including several offers, over the years, initiated by Slocan itself. All of these were billiondollar proposals, but much additional spice was added to the mix and considerable sophistication to the boardroom process as a result of the involvement of two 20 per cent shareholders of Slocan – the Jim Pattison Group and Stephen Jarislowsky – as well as a third billionaire, Brant Louie, whose fortune was derived mainly from mass food retailing and a large chain of drug stores. There was, to say the least, an unusual amount of

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firepower present in the boardroom. Eventually, in 2003–04, agreement was reached on a merger valued at well in excess of a billion dollars. The firm acted as counsel to the special committee of the Slocan board of directors. One of the interesting features of the deal terms was that, although this was, economically, an acquisition of Slocan by Canfor, part of the deal terms was that the senior Slocan management go over to run Canfor. The outcome, for the firm, was that, even though we acted for the notional target company, we gained an entrée into Canfor and started doing their major mergers and acquisition work for the next few years, until the Canfor management was shaken up and our supportive contacts left to “spend more time with their families.” During the time that they were still in charge, Jonathan Drance and Ed Waitzer from the Toronto office consulted with them about their strategic plans to separate their pulp and lumber divisions and about potential acquisition targets. The work on separation of the pulp and lumber businesses eventually bore fruit with a billion dollar reorganization in 2005–06, when Canfor spun-out its pulp business through Canfor Pulp Income Fund, for which we did all the Canfor work. John Anderson continues to act for Canfor Pulp, particularly as it was reorganized to meet the changes in the federal tax treatment applicable to income trusts. Within months of completing the major re-organization of Canfor toward the end of 2006, the Vancouver office began to act as part of the broader Abitibi-Bowater re-organization led by Marc Barbeau of the Montreal office in relation to the British Columbia assets, which comprised a good portion of the north-central part of the province. It took almost eighteen months to get the whole transaction completed. Working again with Montreal, the Vancouver office is currently advising Tembec with respect to the sale of its lumber assets in British Columbia – coincidentally, the same assets that Mitsubishi/Crestbrook sold to Tembec in 1997 and on which we had then acted on the opposite side from Tembec. In 2001–02, the firm acted in the Duke acquisition of Westcoast Transmission and in 2006 in the sale of Terasen Energy (formerly bc Gas) to Kinder Morgan, the former driven by the Toronto office but with due diligence and obtaining the key regulatory approvals, almost all of which were provincial, carried out by the Vancouver office. The Terasen Energy deal was handled by the Vancouver office. The Rise of Mining During the late 1990s and early 2000s, two main phenomena were occurring in British Columbia. The first was the “hollowing out” of corporate Vancouver as a result of a number of key forestry, resource, and utility companies being acquired by foreign interests, leaving fewer clients head-

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quartered in Vancouver. The second was that the resource industry was in a major depression. Tookie Angus joined the Vancouver office during the run-up to the tech bubble, while the resource sector was suffering its downturn. He was able to hint at the type of practice we would have in the future, but left for Faskens prior to the promise coming to fruition. It was perhaps fortunate that we were never big players in the tech space, since we avoided the suffering that resulted from the so-called dot-com (often called “dot-bomb”) crash in the very early 2000s and were able to begin to focus on the resources sector at that time. In particular, Endeavour Financial, an important client and financial advisor to resource companies, provided Mike Allen with wonderful referrals in the mining project finance space, which was a principal source of his work through to the collapse of debt financing in the 2007–08 financial crisis. One of its numerous referrals in the mining sector was Baja, for whom we acted in its equity financing and syndication of its project with the Korean sovereign investor (kores) as well as many other mandates in the development of its mine. Another was UrAsia, which we represented at the height of the uranium price run-up in its reverse takeover with Uranium One, a deal in which UrAsia, having a capitalized market value of some $3.5 billion, was acquired by Uranium One, which had a market cap of approximately $1.8 billion. We then represented Energy Metals (with a market cap of $1.5 billion) in its merger with Uranium One to create a leading uranium producer. Even though uranium prices fell off following these deals, a credible leading uranium producer had been established. Allen has always maintained a high-end corporate financing practice that has included project finance transactions in Russia, Chile, South Africa, and several other offshore jurisdictions, together with major syndicated transactions on behalf of Telus, mda, Methanex, Intrawest, Finning, and Terasen. Even though the 2008 banking crisis bit into these practice areas, the public private partnerships sphere became active and, especially on the lending side, Allen moved into a first-call position in that sphere. During the past decade we have also acted on a number of other resource deals, establishing Vancouver as one of the premiere resource practices. These included a number of “spinco” deals, such as AuEx’s merger with Fronteer Gold, in which the target company is acquired for its “crown jewel” asset and the remaining assets are placed in a new company, managed by the management of the target company, whose securities are distributed to the target’s shareholders. The “spinco” deal structure is becoming one of the more popular deal structures in the mining sector. We have also become counsel of choice to a number of Korean investors, including kores and LS-Nikko, for their investments in the mining sector. The bestknown transaction on which we assisted them was their participation in Capstone’s bid for Far West. kores invested approximately $400 million

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in the transaction ($200 million as a direct investment in Capstone and $200 million as a direct investment in Far West), an investment that enabled Capstone to acquire Far West. That transaction was selected as the mining Deal of 2011 in the Thomson Reuters “dealmakers” awards. As a general trend, the last decade and, in particular, the last five or six years, have seen the re-emergence of Vancouver as a major mining centre, not so much in the old way of a generation or two ago, when Vancouver was the administrative centre for a bunch of small, marginally profitable mines scattered through the British Columbia hinterland, but now, along with Toronto, as a centre for financing, organizing, auditing, and consulting with globally active mining companies whose assets are far more likely to be in Africa, Asia, South America, Australia, or, indeed, almost anywhere but British Columbia. We have acted for Endeavour, the most active and energetic local mine financier and promoter. The Vancouver office has represented Teck, the largest locally headquartered mining company, sometimes with or led by Bill Braithwaite in Toronto and sometimes on its own. Teck entered into the last significant transaction before the markets collapsed, namely the acquisition of the Fording Coal Income Fund and was, as a result of this unfortunate timing, forced into a frantic re-financing that involved both the Toronto and Vancouver offices, including Ralph Lutes and Drance in Vancouver. Vancouver was also involved in advising Teck on its $1.5 billion private placement to Chinese Investment Corp., which was particularly interesting for the office since Lutes has been a personal friend of Teck’s ceo, Don Lindsay, for fifteen years. In 2009, in the depths of Teck’s financing concerns, Lutes was seconded to work directly with Lindsay for six months and in 2011 moved to Beijing to head up Teck’s office dealing with its major Chinese coal contracts. Anderson has been contacted to deal with several Teck mandates relating to the Galore Creek Project in northwestern British Columbia. Neville McClure is very active for a broad array of mining and resource companies and underwriters. John Stark has acted for Minefinders, a good-sized gold mining company with major assets in Mexico, and is currently completing a major $1.5 billion merger between Minefinders and another Vancouver-based company. The Vancouver office, principally through Neville McClure, is counsel to Baja Mining Corp., which has raised $1 billion in debt and equity financing and which undertook a number of transactions between 2007 and 2011 relating to the development of Baja’s Boleo copper-cobalt-zinc project in Baja, Mexico. These transactions included selling 30 per cent of the Boleo project to a consortium of Korean companies led by kores in consideration for a financing package of up to us$435 million and raising the equity portion of the financing to fund the construction of the Boleo mine, overall a billion-dollar project.

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Stark joined the office in 2004, bringing with him a mandate to advise the management of Creo Inc., a local high-tech company that had revolutionized the computer-to-print industry by eliminating typesetting. Creo’s stock had, nevertheless, been in the tank and it was in the early stages of looking at what are often referred to euphemistically as “value-maximizing” transactions. Stark had never acted for the company before and had been engaged by its general counsel, with whom he had previously practiced. At the beginning of October, a group of activist investors requisitioned a meeting of Creo’s shareholders with the intention of removing directors and senior management and replacing them with a group led by Robert Burton, who was notorious for a previous brutal, but successful, run at Moore Corp. While fending off the dissidents, Creo ran an auction that resulted in Eastman Kodak Company acquiring Creo in the first half of 2005 for approximately $1 billion in cash. As it turned out, this was one of the last significant Kodak acquisitions. In early 2007, Stark was approached by the ceo of a uranium development company (a coded term in the industry meaning that it has no production), Energy Metals Corporation, which was looking for a potential sale to Uranium One Inc. Given Anderson’s work on the previous sale of a company to Uranium One, the Vancouver office was the natural choice to handle this mandate. In hindsight, the timing was fortunate, since the transaction took place at a time when uranium prices were on a run, driven by one of the periodic predictions of a renaissance for nuclear power. Energy Metals negotiated a price to be paid in Uranium One shares that valued Energy Metals at $1.8 billion – this for a company that had been trading for pennies a share five years before. The transaction closed in August 2007 – timing is everything. In 2006 a mining development company – Minefinders Corporation – came to the firm for special counsel work in connection with a convertible note financing. Minefinders was developing the Dolores gold-silver project in Mexico. The first drilling at Dolores had taken place in 1995. The convertible note financing for $85 million was completed in October 2006. The money was to be used, together with previously raised equity, to build the Dolores Mine. The cost of mine construction was more than expected and the construction was behind schedule. Minefinders was running low on funds at the depth of the financial crisis. Minefinders filed a shelf prospectus and did a drawdown offering of $40 million in 2008 to complete the construction. In 2009 the mine was commissioned and Minefinders did a further drawdown offering of $66 million. In 2010 Minefinders renewed its shelf prospectus and did a further drawdown offering of $151 million. In January 2012 Minefinders accepted an offer from Pan American Silver Corp., which valued Minefinders at approximately $1.4 billion.

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Empowering First Nations One of the key legal and economic trends in British Columbia in the last twenty years, particularly over the last decade, has been the evolving power and rights accorded to First Nations. British Columbia is the only province that did not settle treaties with its affected First Nations groups. In the late twentieth century, the provincial and federal governments became very concerned about how the “uncertainty” surrounding aboriginal rights and title in British Columbia might negatively impact foreign investment and economic activity, largely in the resource sector. To address this concern, they embarked on negotiation of a number of treaties with First Nations to settle those issues once and for all. Through connections forged mainly by Richard Jackson, the firm has represented the British Columbia government in negotiating and closing the only three “modern day” treaties in British Columbia, which have involved creating entirely new legal regimes. The first such treaty, the Nisga’a Treaty in 2000, involved the transfer of more than 2,000 square kilometres of land in northern British Columbia to the Nisga’a Nation. The second, the Tsawwassen Treaty in 2009, was the first “urban treaty” ever concluded and created a new governing entity, Tsawwassen First Nation, which will join the other twenty-three municipalities forming part of Metro Vancouver. The third, the Maa-nulth Treaty in 2011, involved five individual First Nations with very large forestry and land claims on the west coast of Vancouver Island, including a large portion of the beautiful and famous West Coast Trail stretching from Bamfield in the north to Port Renfrew in the south, some forty-seven miles. These three treaties have each been massive and high-profile undertakings and have all been led by Jackson and Bruce Woolley. The firm was retained because of Woolley’s academic and practice credentials as a leading real property professor and lawyer in British Columbia and in order to provide a high degree of comfort to the private sector (particularly forestry, mining, and utility companies) that the treaties were economically compatible with respect to each of their business practices in the province. Reshaping Vancouver Since the Vancouver office opened, the downtown core of the city and the surrounding peninsula have been dramatically altered. The office has played an important role in these developments. It started, of course, with the 250 acre former Expo ’86 site on the north shore of False Creek in downtown Vancouver, now called Concord Pacific Place, which is the largest single privately funded residential development in North America. The real estate group, led by Ross MacDonald and Jackson, has been re-

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sponsible for almost all of the legal work associated with the more than eight million square feet of residential development currently completed on the site, some eight thousand individual units. When fully built, the property will contain in excess of twelve million square feet and more than ten thousand individual residential units. Concord Pacific Place also contains two iconic sports facilities, Rogers Arena, home of Vancouver’s National Hockey League franchise, the Vancouver Canucks, and bc Place, sporting a new $600 million retractable roof, for the Canadian Football League bc Lions. MacDonald and Jackson were closely involved in the rezoning and developments relating to both facilities. A good measure of the quality of the legal work done and processes developed with the city in relation to Concord Pacific is that they now serve as the templates for all other developers and law firms involved in every major development project in the city. MacDonald was also very much involved on the other shore of False Creek, where the Athletes Village for the 2010 Olympic Winter Games was located. The original developer foundered and was unable to meet its commitments. The city was forced to step in and take it over, engaging MacDonald to quarterback the delivery of the project. The city also retained MacDonald on complicated projects such as the Canada Line, the rapid transit facility that connects the Vancouver International Airport and Richmond with downtown Vancouver. The city of Richmond used MacDonald in relation to the Olympic Speed Skating Oval, its flagship contribution to the success of the Games. Jackson represents the development arm of the Aquilini family, which, among other distinctions, is the owner of the Vancouver Canucks (of which more to follow). In addition to many high-rise residential and commercial towers in the downtown core, the Aquilini family is in the process of developing a four-tower project in the air space over the Rogers Arena, which, when completed, will contain more than one million square feet. It is undoubtedly the most complex air space subdivision ever attempted in British Columbia and will redefine that portion of the downtown peninsula. Litigation Hein Poulus joined the Vancouver office in April 1996, with his secretary, becoming its first litigator. In a sense, it was a package deal with Tookie Angus, who was also leaving Smith Lyons and had been the primary recruiting target of the firm because of his expertise in mining and resources. The firm had been looking, rather desultorily, for a litigator but, despite the oft-repeated dicta of Jim Grant, then the firm’s chair, “If you do not have litigation capability, you are a consulting firm, not a law firm,” the search had never become a priority. The package proved to be a success. Even

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though Angus departed a few years later, Poulus built a litigation group of ten lawyers focused almost entirely on commercial litigation, which has become part of the core group in the office. Much of the early litigation work was interesting to the litigators but did not attract headlines or public attention. One example was representation of a European manufacturer of major components for the ill-fated British Columbia fast ferries. The project had been a disaster from the beginning. The ferries were built for some $465 million, taken out of service after a few months, and auctioned off for less than $20 million. The claim against the client was that defects in the components were the cause of the failure of the project. Even for a significant company, $465 million, plus interest and costs, would have been a serious hit. The case was eventually settled on terms entirely satisfactory to the client, and thus did not attract the media attention that would have surrounded a trial of the matter. The firm also represented a major medical device manufacturer in a class action based on allegations that a widely used implantable device had failed prematurely, causing injury and death. The claim was potentially very large and would no doubt have attracted attention had it come to trial. After an enormous amount of pre-trial warfare, it was settled on very attractive terms and the class counsel, naturally retained on a contingent basis, had to write-off about half their investment. During the first decade of our entry into local litigation, the only case that attracted any attention was a securities class action arising from the discovery that the meteoric rise in the stock value of a junior gold explorer named Delgratia was entirely due to someone having “salted” the drill samples, adding gold to otherwise barren samples. Although the media had a field day with the story, Delgratia was a company of modest means and class counsel, who had vigorously pursued the claim for the first few months but could see no pot of gold at the end of the road, lost interest, and the litigation petered out. The Vancouver litigation group operated largely out of the public eye until it was engaged by Francesco Aquilini to represent him and his family in a dispute with the Gaglardi and Beedie families. The dispute had arisen from the acquisition by the Aquilini family of the Vancouver Canucks and the arena in which they played. The Canucks had been owned for a decade by John McCaw, one of the McCaw brothers, all of whom had become billionaires when they sold McCaw Cellular to at&t in 1994. McCaw had come to own the Canucks more by accident than design. He had known members of the Griffiths family for many years. The Griffiths family controlled a public company, Northwest Sports, that owned the Canucks. Following the death of Frank Griffiths, the patriarch of the family, his son Arthur had privatized the Canucks, the Vancouver Grizzlies basketball team, and the arena in which they played. Arthur Griffiths did not have sufficient capital to close the transaction on his own and

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prevailed on his friend John McCaw to supply the balance. Shortly after the going-private transaction in 1995, the business began to haemorrhage cash and Griffiths could not fund his portion of the negative cash flow. By the end of 1996, he was out of the business and McCaw owned all of it. McCaw, however, was not enthusiastic about owning either the teams or the arena and immediately began to try to sell them. By 2001, he was able to sell the Grizzlies, whose new owner moved them to Memphis. But he was still stuck with the Canucks and the arena. In 2003, he engaged kpmg to sell both assets. No one made an offer. kpmg then created some interest among a small group consisting of Tom Gaglardi, the eldest son of Bob Gaglardi, owner of the Sandman chain of hotels and Denny’s restaurants, Ryan Beedie, whose father, Keith, had built up a large land development company, and Francesco Aquilini, whose family was also a significant owner and developer of real estate. The three men agreed over dinner that they would pursue the acquisition together. Negotiations, led by Gaglardi, dragged on for several months with no transaction in sight. Aquilini dropped out of the group and Gaglardi and Beedie carried on. A few months later, the media reported that they were close to buying the Canucks and the arena, but in the weeks that followed there was no announcement of any deal. Around that time, Aquilini met McCaw’s right-hand man, Stanley McCammon, on a social occasion and learned that the team might still be available. He then approached McCaw, who suggested that he and McCammon should meet to see if they could make a deal. The meeting turned into a two-day negotiating session, resulting in a transaction by which the Aquilini family would buy one-half of the Canucks and the arena, with an option to buy the remainder later. When the transaction was announced, Gaglardi and Beedie cried foul and commenced legal proceedings against both the Aquilinis and McCaw. They claimed that their earlier joint pursuit of the Canucks had created a partnership and that Aquilini’s purchase of the team violated fiduciary obligations flowing from that partnership. They also claimed that in making his own deal Aquilini had used confidential information that belonged to all three. Finally, they claimed that McCaw was guilty of a number of civil wrongs, including knowing participation in Aquilini’s breaches of fiduciary obligation. The trial, which lasted twelve weeks, took place in a blaze of publicity. The court registry assigned the case to the enormous courtroom that had been built for the Air India bombing trial. All of the space was required to accommodate the press and the curious. Neither side spared any expense. Gaglardi and Beedie had, at all times, three Queen’s Counsel present (Irwin Nathanson, Steve Schacter, and Murray Clemens) and occasionally a fourth, Bob Diebolt. The Aquilinis retained Howard Shapray, qc to assist Poulus and David Brown. McCaw retained Bob Sewell, qc to assist Bill Kaplan, qc and Peter Rubin. By any measure, this

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was a great deal of legal horsepower. Hordes of juniors did work outside the courtroom. The case was, at least in part, a credibility contest. The high point for the firm came during cross-examination, in a piece designed by Brown. Gaglardi had testified during discovery that he and others had attended a meeting at a lawyer’s office in Vancouver on November 13, 2003. Brown had noticed in the documents that Aquilini had been out of Vancouver on that day and assembled a package of evidence to prove it. In his examination-inchief at trial, Gaglardi described the November 13 meeting, including Aquilini’s role in the meeting, in vivid detail. When Poulus cross-examined him, he walked Gaglardi through that portion of the discovery transcript, bit-by-bit, and asked him if he had an actual recollection of the events that he described. Gaglardi insisted that he had such a recollection. Poulus then showed him Aquilini’s cell phone records for that day and a passenger manifest from Heli-Jet, from which it was plain that, at the time of the meeting, Aquilini had been in Victoria, not Vancouver. Perhaps because the plaintiffs had not fared well in cross-examination, the cross-examination of the defendants was unusually aggressive. Every substantive witness was accused of lying under oath. A senior solicitor who gave evidence was accused of perjury. The media loved the entire spectacle. The reasons for judgment were entirely one-sided. The judge held that there was no partnership, that Aquilini owed no fiduciary obligations, nor any obligation of fairness, and that, even if he did, his conduct had not been unfair. She dismissed the action with costs. The plaintiffs appealed. The Court of Appeal unanimously dismissed the appeal. The Supreme Court of Canada refused leave to appeal. The case changed the profile of the Vancouver litigation group. The intense media coverage ensured that everyone knew the Vancouver office had a litigation group. Before the Canucks case, some of the Toronto partners were occasionally heard to mutter about whether there were any litigators in the Vancouver office. The Lexpert cover story following the trial put an end to that line of enquiry. o t t awa Going into the sixth decade of the firm, the Ottawa office continued its efforts to expand from the base of regulatory, administrative, and public law that had always been the principal focus of Ottawa’s founding partner, Greg Kane. Prior to 2000, there had never been a concerted effort to build a corporate and commercial practice with Ottawa-based clients, given the scale of most businesses based in the area and their inability to afford legal services at the rates charged by national firms for transactional work. The high technology boom of the late 1990s and early 2000s provided the Ottawa office with an opportunity to rethink this approach. Ottawa

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(known locally as Silicon Valley North) now appeared to offer significantly expanded scope for corporate transactions. In 2001, Mark Burton (formerly a partner in the Toronto office) was lured back into the Stikeman Elliott fold with a mandate to develop a corporate practice in Ottawa. Mark had a unique personality: he would never take no for an answer and, if knocked down, would get right back up again. Burton pitched tirelessly and vociferously and managed to bring in some of Ottawa’s most significant corporate work at the time, including acting in July 2002 for the international oil company Royal Dutch Shell in its financing of Iogen Corporation, a biotechnology company focused on commercializing the production of ethanol from cellulose. In 2003, Kane stepped down as managing partner of the Ottawa office after more than twenty years in the role and Mirko Bibic assumed that position. Bibic had the distinction of being the first “home-grown” managing partner, having joined the office in 1992 as an articling student, becoming a partner in 2000. Although young, Bibic was an exceptional lawyer, with a keen business sense backed by a joint llb/mba education. A further shake-up came in early 2003 when Lawson Hunter left the partnership of Stikeman Elliott and the Ottawa office to join one of his former colleagues from the civil service, Michael Sabia, at Bell Canada. Hunter assumed the positions of executive vice-president and chief corporate officer of both Bell Canada and bce Inc., where he was officially responsible for overseeing regulatory matters, governmental relations, and corporate affairs. (His full set of responsibilities could probably neither be described, nor circumscribed, by anyone other than Sabia.) Prior to his departure, Hunter very kindly presented the Ottawa partners with his thoughts (in commandment format) on how each of them should conduct his or her practice going-forward. Blessed with the generous sharing of such omniscience, each partner wished Hunter well in his new position. No one could have predicted at the time that he would return to the Ottawa office five years later. Even with Hunter’s departure, the competition practice in Ottawa was in good hands. Susan Hutton, who had joined the firm with Hunter in 1993 and had joined the partnership in 2001, had already developed a significant international reputation. Jeff Brown, who had joined the firm in 1995 as an articling student, had recently been made a partner in the group. Hutton, recovering from complications during the birth of her second child when Hunter left, continued to develop her practice while on leave and upon her return in September 2003 was featured in Lexpert magazine’s “Top 15 Women to Watch.” A few years later, she was listed not only in Lexpert’s Legal Directory as a leading practitioner in the areas of competition law and international trade but also in Chambers Global’s The Guide to the World’s Leading Lawyers for Business as well as Global

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Competition Review’s The International Who’s Who of Competition Lawyers and Economists, to name but a few. The accolades were well deserved, as she was engaged to represent Mittal with respect to its blockbuster bid for Arcelor (us$33.1 billion) in 2006. Her engagement as competition and foreign investment counsel to Alcoa landed the firm the role of counsel to Alcoa with respect to its $33 billion hostile bid for Alcan in 2007 – at the time, the largest hostile takeover bid in Canadian history. She continued a winning record on trade matters as well and, with Nick McHaffie, took a consortium of grain corn importers led by her client, Maple Leaf Foods, to victory in the subsidy case brought against US imports in 2006. Brown, who had spent two years in the Toronto office from 1998 to 2000, was part of the team that represented Canadian Imperial Bank of Commerce in its proposed merger with Toronto-Dominion in 1998. He played an important role in Astral’s 2002 acquisition of Quebec radio stations from Telemedia, a transaction vigorously resisted by the Competition Bureau before it finally agreed to a settlement with the parties, thus allowing the transaction to close. Together with Randall Hofley (who remained with the Ottawa office until 2009) and Paul Collins of the Toronto office (who assumed the position of head of the firm’s competition group), Hutton and Brown ensured that the competition group thrived despite Hunter’s departure. Part of Hunter’s new job was to recruit the most talented and hardworking people he could find to assist him in reforming Bell Canada. That naturally led him to transition from gamekeeper to poacher, seeking out a number of the firm’s lawyers, one of whom was Bibic, who left the partnership and the Ottawa office in December 2003 to join Bell Canada as chief of regulatory affairs. Bibic was much loved by the Ottawa staff, associates, and partners, and, although everyone wished him well in his new responsibilities, his departure was keenly felt. Bibic’s departure created a vacancy in the position of managing partner and Stuart McCormack, having previously considered and rejected the possibility of assuming such a role, took over the responsibilities. One of the issues then facing the Ottawa office was the future of a corporate practice in Ottawa. While Burton had done his best to build such a practice, and had brought in an associate and a corporate clerk to support the practice, the crash of the technology boom had led to the collapse of the Ottawa corporate and commercial legal market. Stikeman Elliott Ottawa was now one of many firms pitching for a piece of a much-diminished pie. Ultimately, the Ottawa office decided to refocus on its core federal regulatory mission and Burton, as much an entrepreneur as a lawyer, left the firm to pursue a series of ceo jobs, constantly demonstrating excellent business acumen and turnaround skills. In the course of the decade, many

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other national firms have come to realize the importance of focusing on federal regulatory and legislative matters within their Ottawa offices. National firms that departed from this model, such as McCarthy Tétrault, Bennett Jones, Smith Lyons, and Davies Ward Philips and Vineberg, have disappeared from the Ottawa market. Part of the refocus on the regulatory, administrative, and public law areas meant that the firm was open to the possibility of developing a more concerted government relations practice. With this in mind, in 2004 the Ottawa office welcomed Eddie Goldenberg, a chief strategist for the Liberal Party and close friend of the then prime minister, Jean Chrétien. Goldenberg was fervent in his belief in the growing importance of China in the world’s economy and an instrumental part in shaping the firm’s approach to that country. Ultimately, however, the transactional nature of the firm’s regulatory activities did not support a full-time government relations practice and Goldenberg moved to Bennett Jones. The Ottawa office partnership grew as two new partners joined the fold. In January 2004, Nick McHaffie joined the partnership after having moved to Ottawa from the Toronto office in 1998. The addition of a public law litigator to the mix of regulatory lawyers was a significant advantage for the Ottawa office and McHaffie began growing the litigation group in Ottawa. In 2006, Justine Whitehead became the second female partner in the Ottawa office and the first woman from the Ottawa office to “hit for the cycle,” moving from articling student in 1997–98 to associate and then partner. Whitehead’s practice in the early years was focused primarily on international trade. At the end of her articling year, she was co-counsel of record with Donald Kubesh at the Canadian International Trade Tribunal’s Inquiry into the Importation of Dairy Product Blends Outside the Coverage of Canada’s Tariff-Rate Quotas. However, with Bibic’s departure at the end of 2003, the orientation of her practice changed to fill the gap in the intellectual property group. Today, her practice focuses on federal regulatory law, with an emphasis on information technology transactions, intellectual property, and marketing and advertising law. On one memorable occasion, she flew back from a holiday in Russia to board a plane for Japan the next day to assist Ballard Power in the negotiation of a co-development agreement and technology license with a Japanese partner. More recently, Whitehead was the sole Canadian intellectual property counsel to Apple in its successful $4.3 billion bid (as part of a consortium of technology companies) for the Nortel patent portfolio. In 2007, the Ottawa office began a charitable association with the Ottawa Rotary Home Foundation, which since 1982 has provided respite care to individuals with severe physical disabilities so that the families with whom they live full-time can take much-deserved breaks of up to a week

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at a time. Historically, the Rotary Home had focused on providing respite care for children. However, the organization had identified a significant need for continued respite care even once the children passed the age of sixteen – the maximum age for provincial government funding. Stikeman Elliott helped raise funds for the project, Hutton joined the board, and the new Ottawa Rotary Home, with wings for disabled children and adults, was opened in 2009. The entire Ottawa office continues to fundraise through personal donations and by contributing a nominal fee for the privilege of dressing casually on Friday. Moreover, staff and lawyers volunteer their time for specific projects ranging from filing to painting when requested by the Home. In September 2008, Lawson Hunter re-joined the Ottawa office as counsel. Somewhat out of keeping with his type-A personality, he came back saying that, during the next phase of his career, he was going to work only human (as opposed to superhuman) hours. These plans, like many others, “gang aft agley”4 and were dashed in May 2010 when Collins, the head of the firm’s competition group, accepted a two-year secondment at the Competition Bureau as senior deputy commissioner in charge of the Mergers Branch. In Collins’ absence, Hunter agreed to take over as head of the competition group. Hunter, Brown, and Hutton have each helped to fill the gap left by Collins in the Toronto office by spending considerable time in Toronto and will be relieved by Collins’ recent return to the firm. During his time in government, and subsequently at Bell Canada, Hunter had come to understand the levers of government exceptionally well. This proved to be particularly important when one of the firm’s more significant clients and one of the largest contributors to Canada’s gross national product, Potash Corporation of Saskatchewan, Inc., was the subject of a hostile takeover bid by bhp Billiton in the late summer of 2010. Demonstrating the seamless nature of the firm, the Toronto and Ottawa offices (Bill Braithwaite in Toronto, Hunter, Hutton, and Brown in Ottawa) worked closely together in the defence against that bid, which culminated in the historic decision by the minister of industry to reject the bid under powers conferred by the Investment Canada Act. The case was extremely high profile and was front-page news for months. It provoked a considerable amount of soul-searching by foreign investors who were trying to determine whether it was safe to do business in Canada. The fallout from the government’s decision has not ceased and, while it is not possible to assess the long-term implications, it is certainly clear that prospective entrants require the right legal, government relations, and public relations advisors. The Ottawa office has experienced a number of retirements during the last decade. The Right Honourable Antonio Lamer, who had joined the 4 Robert Burns, To a Mouse.

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firm as counsel in 2000 after retiring from the Supreme Court of Canada as chief justice of Canada, retired in 2006. During his time with the firm, he continued his service as a valued contributor to the administration of justice in Canada, including chairing the commission established by the government of Newfoundland and Labrador to examine wrongful murder convictions and conducting a review of military justice in Canada. Lamer’s death in November of 2007 was mourned by all who knew him, and the feelings of his friends were perhaps best encapsulated in his granddaughter’s eulogy when she said “his heart was too big to stay on this earth, he had to go to heaven.” In 2010, Donald Kubesh, one of the office’s longest-serving partners, retired almost simultaneously with T. Bradbrooke Smith, who decided to assume the role of full-time gentleman farmer, leaving the practice of law some fifty years after his call to the Bar. Each was greatly missed: Smith for his gentlemanly ways and kind mentoring of younger lawyers and Kubesh for his willingness to engage anybody in an argument about anything and for everlasting and stimulating debates about American politics. When he was not arguing, he was developing a practice that saw him recognized as one of Canada’s foremost experts in the regulation of trade in agricultural goods and further processed foods, with an emphasis on Canada’s supplymanaged agricultural sectors. Through the years, the Ottawa office has served not only to support the firm’s interests in Ottawa but to promote the Stikeman Elliott name and brand in the Ottawa community. Kane’s longstanding involvement with the Ottawa Hospital (currently as chair of its foundation) and the National Arts Centre and Hunter’s similar support of the Ottawa Art Gallery serve both to give back to the community and to underline the Stikeman Elliott brand. More recently, with the introduction of mandatory continuing legal education for Ontario lawyers, the Ottawa office has begun a highly regarded series of complimentary breakfast seminars. These seminars focus on topics of interest to the Ottawa business community, including social media and intellectual property issues, competition issues in trade associations, and intellectual property rights in commercial law. By February 1, 2012, the Ottawa office was firmly focused, once again, on regulatory, administrative, and public law, aligned with the vision of the office first championed by Kane. Notwithstanding the modest size of the Ottawa office, it has continued to be involved in exceptional mandates, seen as such both within the firm and in the Canadian legal landscape generally. McCormack and Whitehead have represented the Bank of Canada on a continuous basis with respect to its information technology and intellectual property needs. Nortel’s extraordinary bankruptcy found the firm representing multiple bidders with respect to rights in Nortel’s various operating businesses. McCormack and Whitehead led the charge

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on the intellectual property front in the acquisition of those rights by various bidders, including three that were successful. During the past decade, the communications industry has remained closely regulated, primarily through the Canadian Radio-television Telecommunications Commission (crtc) as well as Industry Canada and through policy initiatives in the Department of Canadian Heritage. Kane led the communications law practice group and participated on behalf of a wide variety of clients in all of the major crtc proceedings as well as Cabinet appeals, Federal Court of Canada judicial reviews, and the Supreme Court of Canada determinations on jurisdiction relating to the crtc. Mandates included crtc proceedings to resolve issues in telecommunications that included the intersection of Internet service providers at both the retail and wholesale levels, foreign ownership of service providers, and rollout and broadband expansion, as well as accessibility to telecommunications services by persons with disabilities. In the broadcasting sector, mandates included advising clients in significant crtc policy proceedings relating to the distribution sector, Internet retransmissions, the regulatory framework for broadcasting distributors, including contributions for the creation of Canadian programming, the mediation of disputes between broadcasters and distributors, crtc jurisdiction and determinations with respect to broadcasting in New Media, and the acquisition by major broadcasters such as CanWest/Global and ctv by Shaw Communications and bce Inc. respectively. During this period Kane was recognized by the Communications Law Bar through inclusion in peer reviewed publications such as Chambers Global’s The Guide to the World’s Leading Lawyers for Business, The Best Lawyers in Canada, and several other publications. The litigation group of the Ottawa office has continued to build a wellrecognized prominence, with McHaffie appearing several times before the Supreme Court of Canada on a variety of matters ranging from insurance to First Nations issues. The intellectual property litigation group has participated in a number of “firsts” in the Canadian legal landscape, including the first contested hearing before the Patented Medicine Prices Review Board, the first hearing before the Copyright Board dealing with rates for ringtones in Canada, and the first hearing before the Copyright Board dealing with the extent of its jurisdiction to impose certain levies. The Ottawa-based contingent of the competition and foreign investment group has gone from strength to strength in recent years. Hutton represented Motorola with respect to its proposed us$12.5 billion acquisition by Google in 2011–12; Hunter and Hutton represented United Airlines with respect to its us$8 billion merger with Continental (awarded Global Competition’s Review’s m&a Transaction of the Year for the Americas Award in 2011), as well as Johnson & Johnson with respect to its

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us$21.3 billion proposed acquisition of Synthes in 2011–12, as well as the already-mentioned 2010 representation of the Potash Corporation of Saskatchewan Inc. against bhp Billiton’s unsolicited bid, winning the International Financial Law Review’s “Canadian Law Firm of the Year” Award in 2011 for its work on this and other transactions. Hutton’s work, as well as frequent writing and speaking on competition and foreign investment, led to her being featured on the February 2012 cover of Lexpert magazine and quoted in the lead article, “Advising Foreign Investors.” She also finds time to edit the firm’s blog, TheCompetitor.com, and recently helped launch the Canadian Competition Law Review as chair of the editorial committee. In 2011, she joined the executive of the national competition law section of the Canadian Bar Association, and will follow in Collins’ and Hunter’s footsteps as chair of the section in 2014–15. Brown and Hunter represented Panasonic in its acquisition of Sanyo, as well as Canadian Tire in its $771 million acquisition of sporting goods chain Forzani. Brown represented abb in its acquisitions of Baldor Electric and Thomas & Betts and worked closely with the Toronto and Montreal offices on transactions for such clients as hbc (sale of Zellers leases to Target), Littlejohn (sale of Van Houtte to Green Mountain), and Cogeco (acquisition of Quebec radio stations from Corus). While the internal firm debate over the need for an Ottawa office appears to be a perpetual issue, the Ottawa office continues to fill the objectives identified many years earlier by Grant, Stanley Hartt, and Sonny Gordon. The strong national practices that formed the core of the office’s early years continue: the broadcasting and telecommunications practice begun by Kane, the international trade practice begun by Kubesh, the intellectual property practice begun by McCormack, and the competition law practice begun by Hunter all thrive. In addition there are the contributions of newer partners, Hutton, Brown, McHaffie, and Whitehead, as they identify and build new strengths under the broad umbrella of federal regulatory law. In addition, the firm has proven to be an excellent training ground for lawyers who later move in-house as counsel to the government, with a significant number of Stikeman Elliott Ottawa alumni at the Competition Bureau, in the Ottawa high-tech market (including Research in Motion, Telesat, and Bridgewater), and at Bell Canada. london The London office, established in 1969 as our first venture outside Montreal, has always had a special place in the on-going future of the firm. It provides the global profile and nimble positioning required to win and

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assist in servicing mandates for investment in Canada, particularly in niche areas such as mining, electricity, and power generation. London’s private capital practice is a leader in the international arena, acting for the major US and European banks on international tax and estate planning mandates. The group also advises offshore governments and the leading offshore law firms on international tax policy and regulatory initiatives. Its debt capital markets practice is one of the leading Canadian practices in the Eurobond area, acting for underwriters and issuers on shelf programs and debt issuances by Canadian governments, banks and other corporates in the European market. The practice also encompasses banking and project finance, acting for borrowers and lenders and sponsors. The current managing principal in London is Derek Linfield, who started with the firm as a summer student in Toronto in 1987. He then spent a year of secondment in London with Clifford Chance in 1994–95 and stayed with the London office of the firm for one more year, returning to Toronto in 1996. He worked for two years in Toronto before leaving the firm for five years. He had wanted to return to London, so took a job with Fasken Martineau in their London office. In 2003, he returned to our London office and took over as managing partner in 2005. Linfield’s professional career, even as a junior lawyer, has always had a major natural resources focus. Beginning in 2003, there was a significant rebirth of the mining industry. Added to that, there were important changes in South Africa, where Black Economic Empowerment initiatives were changing the landscape of the ownership of mining companies in the country. rbc was at the forefront of raising financing for these emerging historically disadvantaged South Africans and the firm was engaged as international counsel to rbc. This was work that Linfield had initially started doing in 2001, when he was still at Faskens, where they raised international money for (and listed on the Johannesburg Stock Exchange) a gold mining company controlled by Patrice Motsepe that acquired (in a joint venture with another South African company) AngloGold’s historic gold mines in the Witwatersrand district of South Africa. On the back of that listing, Motsepe went on to become the wealthiest black South African and is currently listed in the Fortune 500 Wealthiest People in the World. Shortly after Linfield rejoined the firm, South African business really took off. The first fundraising was for Tokyo Sexwale. Sexwale, a former political prisoner under the previous apartheid regime, had spent thirteen years on Robben Island with Nelson Mandela. After his release from prison, Sexwale went on to become premier of Gauteng Province in South Africa, before leaving politics to become a businessman. (He has since returned to public service and is now minister of human settlements in the South African government.) rbc raised the funds for Sexwale’s company,

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Mevelapanda Resources, to buy 15 per cent of Goldfields, a large South African gold mine. Linfield met Sexwale for the first time on June 21, 2003, at breakfast on a beautiful winter’s morning in Cape Town, sitting on the terrace of the Radisson Hotel. Sexwale explained that he was part owner of the hotel because the views from the terrace were of Robben Island and when he saw the hotel he felt compelled to buy it “because the views were better from here.” Two of the associates in the office at the time, Sherry Roth (now a partner) and Erin Needra, assisted on the file and spent weeks in South Africa drafting and doing due diligence. Mevelapanda owned significant interests in diamond and platinum companies. Needra had the pleasure of visiting with a small selection of diamonds that we were told were worth $14 million, while Roth drew the short straw and visited the platinum mine. The mine is one of the few deep-level platinum mines in the world (2.2 kilometres deep) and the only one operated by hydraulics. To visit the mine, visitors are whisked down a mineshaft at what appears to be breakneck speed to a kilometre or more underground. Unfortunately, at some point (at the time the exact point seemed irrelevant) the elevator stopped and Roth and Linfield were stuck in the dark with an elevator jam-packed with mine workers. Linfield cannot remember how long they were there (but is sure it seemed longer than it was) but they were eventually on their way again for what turned out to be a very interesting, but otherwise uneventful, tour over and underground. The firm acted for Patrice Motsepe on the financing of a company, listed in Toronto, that contained his non-South African Assets. In addition, in a very significant transaction for the office, Stewart Sutcliffe assisted with the re-acquisition of the same company for arm and a joint venture with Vale of Brazil. Touring mines in Zimbabwe and South Africa is always interesting, especially since they are all so far underground. One of Linfield’s tours of a mine in Siberia was interesting in a much different way. The Russian government has privatized the old gold mines that were operated by political prisoners and we were acting for the banks that were raising money for the development of the particular mine. To visit the mine, they flew from Moscow to Magadan, all the way to the Pacific across Russia. From there, they flew three hours north to visit the region of Chukotka, where the most northern nuclear power station in the world is located. They had been delayed in Magadan because of fog in Chukotka and needed to get back to Magadan for the flight out the next day to avoid being stuck in Magadan for a week before any flight back to Moscow would become available. So, on arrival they immediately set off for a tour of the mine. Even though it was 11:00 p.m., it was June 17, with a gorgeous midnight sun. Coming out

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of the mine, they were met, in broad daylight at 3:00 a.m., with the greatest feast of meat and fish Linfield had ever seen, with nary a vegetable in sight but with plenty of vodka. Almost everything the firm does in the London office has an international component. Recently, Gordon Chmilar (who was on secondment from Calgary), Katie McDonald, and Linfield went to Nigeria to meet the management of an oil company that was planning a listing in Toronto. While Linfield got to visit the oil rig in the middle of Niger Delta and Chmilar took a helicopter ride to an offshore rig, McDonald, unfortunately (opinion was divided), stayed behind in Lagos to complete the due diligence. Richard Hay heads the London private capital practice, having joined the firm in 1987 after a career as a tax academic in Canada and Singapore and a short spell as head of compliance for Lehman Brothers in London, after the so-called “Big Bang” in 1986 when the Thatcher government deregulated London’s securities markets. At that time the American and Swiss banks were particularly successful in international private banking, but the Americans were more comprehensively regulated. Hay’s prior experience in regulation of financial institutions, coupled with his tax background, was particularly important in meeting the growing needs of the American banks to keep pace with expanding compliance requirements for their cross-border activities. The international activity of the American banks increased in Latin America in the late 1990s and the firm’s London practice become adept at dealing with issues in that sphere, acting for Citibank, jp Morgan, Merrill Lynch, and Deutsche Bank, amongst others. Robert Reymond, a tax lawyer from the Montreal office, came to London in 1999 and, now a partner, stayed on in London, working for the banks. He also advises individuals and offshore fiduciaries on Canadian international tax matters. When the Bahamas government was examined in 2000–02 by the Financial Action Task Force (a regulatory body allied to the oecd) Citibank and jp Morgan recommended that the government engage Stikeman Elliott London to assist them with the legislative overhaul necessary to meet new international standards. As a result of this work, Stikeman Elliott London became involved in negotiations with the oecd and other multi-lateral agencies promoting financial regulation. The unusual combination of skills and experience in the London office made Stikeman Elliott the leading counsel in this new area, and the office has acted for many of the British offshore centres and some of the smaller European and Asian governments as they negotiated cross-border agreements on tax information exchange and regulatory standards. Leigh Nicoll, a New Zealand lawyer, joined the London private capital practice in 2000. She began her work in London assisting Kim Brooks, a

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lawyer seconded from the Toronto office who went on to a distinguished career as a tax academic, including becoming dean of the faculty of law at Dalhousie University. After the Bahamas mandate, Hay and Nicoll wrote a book called Towards a Level Playing Field, which showed that regulatory standards in small international financial centres frequently exceed those in the larger ones in oecd countries. This outcome, supported by a team of eighteen law firms, surprised oecd and led to its instituting a program to upgrade financial regulatory standards throughout their membership and beyond. The burden of increasing financial regulation has the banks preoccupied with compliance matters (which can produce good work for providers of legal services) but the reduction of internal staff and expenditures, including those involving outside professional advice, make the competition for available work even more intense. Stikeman Elliott London continues its active practice in the financial regulation area, including as counsel to ifc Forum. This organisation was established by the major professional law and accounting firms in the British offshore centres with members including Appleby, Attride-Stirling & Woloniecki (asw), Bedell Group, Conyers Dill & Pearman, Intertrust, Maples, Mourant Ozannes, Ogier, Rawlinson & Hunter, and Walkers. As counsel to ifc Forum, Stikeman Elliott has directed a program for liaison with G20 governments, the Financial Stability Board, the oecd, and uk and eu parliamentarians to support policy on financial services, particularly as it affects the activity of international financial centres in the global economy. Although there are a number of permanent London lawyers, there is a regular rotation of associates from the Canadian offices to the London office. A number of those have gone on to become partners. In the years since the last book, these have included David Massé, Amanda Linett, Quentin Markin, and Louis Morriset. Stikeman Elliott London has been instrumental in the survival and development of the Canada Club, one of the oldest dining clubs in London, formed in 1809. The firm has been the (administrative) home of the club for twenty years. Dan Colson was a member of the board and a prominent supporter and Richard Hay served as honorary secretary (chief executive) for three years. The club’s 200th anniversary event was presided over by Prince Philip, Duke of Edinburgh, in an event held at St James’ Palace. It was a huge success and covered in Hello magazine, the ultimate social accolade. The London office is also a supporter of Canadian arts. Reymond (with Pierre-Louis Le Saunier) established and registered the Canadian Friends of Dulwich Picture Gallery as a charity in Canada in order to raise funds for an exhibition entitled Painting Canada: Tom Thomson and the Group of Seven at the Dulwich Picture Gallery in London (October 19, 2011 to January 8, 2012). It was the first time the paintings, including some

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donated by Fraser Elliott, had come to the uk since the 1920s. The exhibition was the second most successful in the gallery’s 195 year history. In 2009, we celebrated our fortieth anniversary in London at one of London’s oldest venues, the magnificent thirteenth century Guildhall (City Hall for the “City,” the business district of London, an area of London that comprises the old Roman city). It was a great party, with over 600 attending, including at least one who had attended our opening party in 1969 – a friend of Heward Stikeman, John Chown. With the financial crisis having a hugely dampening impact on affairs of this nature, it proved to be a very popular and particularly well-attended gathering. All of the former managing partners other than Peter Cumyn attended (Shawna Miller, Phil Henderson, Kip Cobbett, Calin Rovinescu, Jamie Davis, Dan Colson, Brian Rose, and Sonny Gordon). Measuring the performance of foreign offices such as London can be difficult, especially where there are production and representational components. The firm decided not to establish specific targets of dollars per point but instead the situation will be monitored on the basis that, absent exceptional circumstances, the office would be expected to perform at or above the firm average. In addition, it is important to be diligent in tracking referrals from the uk to Canada for purposes of better assessing the representational function of the office. The legal structure of the London partnership changed in 2011 as a result of regulatory requirements adopted by the Solicitors Regulatory Authority, which no longer permitted English partnerships to share space with foreign partnerships, supposedly the result of concerns about confidentiality and the sharing of information. We decided, in order to comply with the regulations, that there would be a stand-alone English, partnership in which there would be a single Canadian partner as nominee of the Canadian partnership. This model, which was really only a variation of the original two-partnership technique we used in the 1970s before multijurisdictional partnerships were allowed, was then applied to the New York and Sydney offices, in the latter two cases effective at the beginning of 2012. n e w yo r k The firm is closing on the thirtieth anniversary of the New York office, which has now established itself as a well-known Canadian presence, similar to that in London, one capable of coordinating cross-border deals and of performing Canadian work in place whenever feasible and directing work to one or more of the Canadian offices if necessary. Unlike the early days, when the face of the office changed regularly as the partner in charge was rotated in and out every two or three years, Ken Ottenbreit has now

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been in New York since the late 1980s and is well embedded in the legal and business communities. An article in the January 2005 Report on Business describes him as follows: Wiry and affable, the Saskatchewan-born lawyer looks younger than his 46 years and he has the (deceptively) earnest intensity of an early Apollo astronaut. He moved here with Stikeman Elliott in 1988, and today helms the firm’s New York office, where his métier is advising on sizeable cross-border deals such as Reebok’s purchase of Montreal Hockey Co. last June and the Carlyle Group’s acquisition of Standard Aero, which has considerable Canadian operations. The importance of the office has been recognized by adding Ottenbreit to the firm’s partnership board in 2006 and, at the time of writing, he is in the process of finishing his second three-year term on the board. The office itself has remained deliberately small, with only modest expansion. In 2009, after more than a decade in Tower 56 at 126 East 56th Street, it moved across the street and around the corner to slightly larger quarters at 445 Park Avenue, allowing for the possibility of a few more lawyers and additional space for visiting lawyers to use the facilities for meetings. The timing was fortuitous, since the previous lease expired in the midst of the biggest financial crisis in fifty years and we were able to take advantage of a very severe dip in the New York commercial real estate market. The move itself was physically accomplished by simply rolling everything across the street and the biggest fear was that our server might be damaged by one of New York’s ubiquitous (and shock absorber–less) taxis. The office managed to score an incredible coup when it obtained sixteen extraordinary paintings owned by the Canadian Association of New York (combining the former Canadian Club and Canadian Society, a merger engineered by Ottenbreit in 2005 as memberships in the separate clubs were shrinking alarmingly). The paintings had been purchased or commissioned in the lead-up to the fiftieth anniversary of the Canadian Club in 1953. All but one are by well-known Canadian artists (the exception is one created by Augustus John, a leading British portrait artist, but the subject of the work is two First World War Canadian infantrymen) and cover every province of Canada. It is a magnificent collection, with works by Charles Comfort, Robert Wakeham Pilot, Franklin Arbuckle, Maurice Cullen, Evan Weekes Macdonald, Hubert Rogers, G. Campbell Tinning, Richard Jack, G. Horne Russell, Frank Lucien Nicolet, Frederick Hutchison, Lorne Holland Bouchard, Thomas Harold Beament, and Walter J. Phillips, in addition to John. The Canadian Association of New York no longer has physical premises and the paintings had been in storage for several years before the firm agreed to provide a showcase for them.

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The office’s client list is particularly impressive, including ubs, Barclays, jp Morgan, Bank of America, rab Capital, AllianceBernstein, Carlyle, Credit Suisse, Deutsche Bank, Morgan Stanley, Stifel (Thomas Weisel), and Ospraie Management. While it did not handle the full deals in some of the major transactions in which the firm acted, it was an integral part of many of them, such as the Toronto Dominion Bank and Ameritrade merger in 2005–06, whereby Ameritrade acquired td’s US brokerage business, td Waterhouse usa, in a $2.9 billion deal, the thinkorswim Canada transaction in 2009, the Thomas Weisel Partners Group Inc.’s acquisition of Canadian investment bank Westwind Partners in 2008 and twp Canada by Stifel in 2010, the Grupo Bimbo acquisition of Weston Foods, Inc., the us bakery business of George Weston Ltd. for $2.4 billion (ranked as one of the twelve top deals in 2008 by the Globe), and the k&s ag $1.675 billion purchase of the Morton International Inc. salt business from Rohm and Haas Company, a subsidiary of the Dow Chemical Company in 2010. Despite the financial crisis, the New York office fared quite well as the financial industry scrambled to avoid complete disaster. One notable transaction was an “over the weekend” acquisition of the Bear Stearns Companies Inc. by JPMorgan Chase & Co. in 2008, which necessitated after-the-fact notification of the securities regulators to get approval for a deal already done, rather than the advance notice called for in the applicable regulations. To their credit, the regulators were fully aware of the perilous circumstances and fragility of the markets and did not stand on ceremony. Ottenbreit started the Terry Fox Run in New York back in 1994, when 150 runners showed up and they raised $17,000. By 2011, the number of runners in the five kilometre event had increased to 2,000 and the proceeds were $150,000. Over the years, some $2 million has been raised and donated to the Memorial Sloan-Kettering Cancer Center in New York in the name of Terry Fox. Most of the lawyers and staff of the New York office volunteer to help the event or participate in it. The firm is a lead sponsor of the Annual Hockey Achievement Award Dinner organized by the Canadian Association of New York, held at the Waldorf-Astoria Hotel, and sponsors the annual Maple Leaf Ball, also organized by the Canadian Association of New York, proceeds from which support Ice Hockey in Harlem, the Terry Fox Run, and the Camp Scholarship Program for emotionally troubled inner-city children. Ottenbreit regularly serves on the organizing committee for the events and as a director of the organizations. Less formal, but clearly more fun, is the annual Central Park Canadian Invitational Hockey Tournament, the most recent iteration of which was held in February 2012 at the Lasker Rink in Central Park. It is open to players at all levels, with a focus on participation rather than competition, and in addition to raising funds for the non-profit youth program Ice Hockey in

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Harlem is intended to further the natural ties between Canadians and New Yorkers. Teams from Canada and the United States participate in a special weekend of social events, general camaraderie, and the unique experience of playing outdoors in one of the most beautiful city parks in the world. Full disclosure compels noting that the 2012 championship trophy for the event – the Stikeman Cup – was won by Stikeman Elliott. In addition to the legal work done within the office, New York is particularly active in helping to identify and activate the many initiatives in the firm-wide business development and marketing activities directed at the vital US market. sydney office Curtis Cusinato joined the firm in March 1996 and completed a secondment to Australia in 1997 where he was part of the opening of the Sydney office in the Chifley Tower with Brian Hansen and Roy Randall. While he was in Australia, the Sydney office completed a number of transactions for cibc (for Don Lindsey, who is now ceo of Teck), Telstra, Normandy, Macquarie, anz Bank, and numerous other clients. Chris Bean ( now a managing director at rbc Capital Markets) replaced Cusinato in Sydney. As he arrived in Sydney, the New Zealand Air representative delivered a note ordering him to check his bags at left luggage and proceed immediately to the Sydney stadium for the 1997 Grand Finale of the Australian Rugby League between Manley and Newcastle. He met a gang of eight, led by Cusinato, at the game (the marketing officer of the league was a friend) to take part in what may have been one of the greatest finishes to a sporting event ever. The proof of that pudding was that Bean did not make it back to the airport to pick up his bags for four days. One of the more legendary stories in the Sydney office was the day Bean took the boat of one of Brian Hansen’s clients out with a number of “friends” and drove it out of Sydney Harbour and up the coast to Palm Beach. He anchored the boat in order to go ashore to have lunch, only to return a few hours later to see a crowd of hundreds watching the boat get smashed onto the rocks and shore. The young Canadian lad had forgotten about those great Australian tides! Unfortunately for Bean, the boat’s insurance had expired so Hansen and he worked feverishly in the following weeks to find a loophole in the lapsed insurance policy and in typical Stikeman Elliott fashion were ultimately successful in getting the boat replaced for the client.

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chapter 5

Some Transactions of a Transactional Firm

transaction work As the size of the firm and its reputation grew, so did the number of transactions with which it was involved, as well as the size and importance of those transactions. As a young firm, we had gotten our seat at the table in major transactions only as everyone’s second choice in cases where there had been conflicts of interest. The last ten years have had us with a seat at the table, normally as someone’s first choice. Innovation has always been hallmark of the firm and we have found ourselves, usually by design, at the forefront of many trends in the business community. These include development of the business income trust structures, furthering Canada’s new role in international mining, preparing the way for foreign investment in Canada, some of which involves institutions central to the country, reaching out to sovereign wealth funds, developing expertise in energy mandates, developing public-private partnerships, rescuing the asset-backed commercial paper market at the time of the financial collapse, enlarging the restructuring and insolvency practice as a consequence of the economic crisis, and dealing with structured financing for capital expansion, mergers, and acquisitions generally. Air Canada The Air Canada saga, beginning with the company as a wholly owned Crown corporation and moving to its becoming fully privatized, has occupied many of the firm’s lawyers over an extended period of time. Although the firm had represented the company from time to time, the real turning point came when a team led by Calin Rovinescu represented it on the privatization. One of the most exciting episodes was our defence of a hostile takeover bid launched in 1999 by Onex, a private equity firm headed

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by Gerry Schwartz, who teamed up with Canadian Airlines and American Airlines and was supported by the leader of the Canadian Auto Workers Union. Rovinescu led a team from Montreal and Toronto to a successful defence. It was a bitterly fought affair, aggressively pursued in both attack and defence. Interestingly, while it is rare that a purely legal defence wins the day, we were successful in persuading the Quebec Superior Court to conclude that the Onex bid was illegal and Onex dropped the bid immediately thereafter. We later acted for Air Canada when it took over Canadian Airlines! The company’s attempts to get out from under the financial and structural legacies of the pre-privatization era and to rationalize a generally unprofitable industry have proven to be constant challenges. Its most serious crisis occurred as a result of a lethal combination of circumstances, beginning with the precipitous drop in air travel following the September 11, 2001 attacks in New York City. This was compounded by attacks from the Competition Bureau on Air Canada’s pricing and other policies, the sars-related avoidance of not only Toronto but Canada generally, historically high costs, and the spiralling costs of fuel. This avalanche eventually drove the company to seek reorganization under the Companies’ Creditors Arrangement Act in 2003 and 2004. This process was hindered rather than helped by the federal government, which vacillated indecisively between announcing that it would, under no circumstances, provide financial assistance to the struggling company and generalized statements that it would never allow Air Canada to go into insolvency, pronouncements that gravely hindered the company’s efforts to renegotiate labour and other contracts. The importance of this restructuring undoubtedly led to our acting in many of the other insolvencies to follow, including Smurfit Stone, AbitibiBowater, Canwest Global Communications, Groupe Jacob and Yellow Media. Despite its emergence from the ccaa proceedings, the future of the company is far from clear. There are virtually weekly announcements of some crisis or another, involving labour, pension deficits, relocations, or a host of others. Quite apart from our loyalty to a client of long standing, we have an emotional attachment to our former partner, Calin Rovinescu, its ceo, as he struggles to deal with Air Canada’s seemingly endless problems. Canadian National Railways We acted in connection with the privatization of Canadian National Railways (which, while owned by the federal government, had itself owned Trans-Canada Airlines, now Air Canada). Following the privatization, we have acted for many years on its behalf, providing corporate and other advice and helping it obtain access to much-needed capital. Canada’s railways

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have been central to the very existence of the country. For many years, Canadian Pacific Railways (cpr) had been the poster child of the industry and Canadian National (cn), despite its government ownership (and the favouritism exhibited toward it in matters of rates and routes, if complaints by cpr were well-founded), was a definite second-level player. With the privatization of cn, however, the stage was set for it to become one of the best-run railway companies in North America, eclipsing the cpr as a highly profitable operation. The wheel may have come full circle in 2012, with dissident cpr shareholders displacing the existing management team and stocking the board of directors with new nominees and, ironically, installing a former chief executive officer of cn (Hunter Harrison) as the new ceo of cpr. cn cannot be happy with that announcement, since Harrison is widely regarded as possibly the best railway executive in North America, and has already positioned itself to protect its legal interests if proprietary knowledge is used for the benefit of its principal competitor. Livent In the spring of 1998, while he was in Florida, Marvin Yontef took a call from New York lawyers wanting to set up a Saturday morning meeting to discuss, on a no-names basis, the fiduciary duties of directors of Canadian companies. Three weeks later, he learned that Michael Ovitz, the superagent who founded the Creative Artists Agency, the man who brokered a major takeover of a Hollywood studio, a former president of the Disney organization, wanted to take control of Livent. Livent was led by Garth Drabinsky and Myron Gottlieb, the impresarios who had brought Phantom of the Opera to Canada and produced Kiss of the Spiderwoman, Ragtime, a revival of Showboat, and Dancing (a Bob Fosse retrospective). Within weeks after Ovitz and his partners took control of Livent, irregular accounting was discovered. These dramatic artistic successes had been financial disasters and the losses had been shifted to the carrying costs of buildings and other fixed assets. These actions led to more than a decade’s worth of consequences. Yontef and Peter Howard advised the board of Livent on the suspension of Drabinsky and Gottlieb and on dealing with the financial irregularities and the eventual insolvency filings in Canada and the United States. Howard led the team that continued with the civil lawsuits that are still before the courts. Gottlieb sued the firm, several partners, and one of the administrative assistants, alleging a multitude of conspiracies. The firm’s defence was successful. Drabinsky and Gottlieb were charged with fraud in Canada and the United States and were convicted of several counts of fraud in 2010. Their 2011 appeal failed.

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Pulp and Paper – the Abitibi Evolution The Abitibi saga started, innocently enough, with Consolidated Bathurst. Sonny Gordon, acting on behalf of Stone Containers, was engaged to lead the acquisition of it from the Desmarais interests in the late 1980s. The mandate, a major transaction by any measure, had arrived on the basis of an unusual chain of events. A few years earlier, Gordon had been retained by Stone Containers on a relatively minor matter, for which he had sent a modest account for services rendered in the amount of some $3,000. Stone paid the account in US funds, which, at the time, were considerably higher than the Canadian dollar. Gordon sent back a cheque for the exchange difference, stating that our account had been rendered in Canadian dollars. This gesture had evidently been remembered by Stone when it was looking for counsel on its potential acquisition of Consolidated Bathurst. As the transaction by which Stone acquired Consolidated Bathurst developed, Gordon worked with Rovinescu, Pierre Raymond, and Marc Barbeau. The newspaper assets were put into Stone Consolidated Corporation, which merged with Rainy River Forest Products, which acquired Donohue in 1999–2000 and was later merged into Abitibi-Price and in 2007 merged with the Bowater interests, which had also picked up assorted pulp and paper assets over the years. The two groups had separate corporate and capital debt structures. By 2008, however, the combined enterprises were leaking a good deal of financial oil, so they refinanced and rescheduled some debt. It proved to be insufficient: the Canadian dollar had gone way up in relation to the US dollar (newsprint is priced in US dollars), energy costs were high, and the price of newsprint was, at best, stagnant. In 2009, the parent company, AbitibiBowater Inc., had filed under both Canadian and US legislation – the Companies’ Creditors Arrangement Act (ccaa) in Canada and Chapter 11 of the Bankruptcy Act in the United States. It was a major effort to coordinate the two cross-border processes with the objective of effectively remerging the underlying companies. (Previously they simply had a single holding company stuck on top of two separate structures.) In March 2009 all of the companies emerged from the ccaa proceedings. The Canadian pulp and paper industry is contracting. Old facilities, high costs, long growth cycles, diminished use of newsprint, long distances, and major shifts in the Canada–US exchange rates have all combined to make conditions particularly difficult within the industry. The many consolidations to which Abitibi (since May 2012, Resolute Forest Products) has been a party are regrettably typical in an industry that was once one of the highlights of the Canadian economy. One of the side stories is that Danny Williams, when premier of Newfoundland and Labrador, caused the province to expropriate the company’s

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Newfoundland and Labrador assets. The province then filed a claim under nafta and issued environmental orders to force the company to clean up the sites. It seemed particularly ironic that the province had expropriated the property for a highly disputable consideration and then wanted the victim to clean it up. In the fall of 2011, an appeal was argued in the Supreme Court of Canada on the issue of whether a remedial order to clean up a site could be compromised and converted into a monetary claim. Income Trusts The period 2002–12 witnessed some extraordinary developments in the business and financial world, in Canada and abroad, not the least of which was the dot-com crash in the early 2000s and the so-called “global financial crisis” commencing in 2007. One of the most interesting was the rise, growth, and subsequent near demise of a new type of entity known as the income trust. An income trust was an equity-like financial instrument that had been carefully designed to pay little or no income tax and to pay high yields. It took the Canadian initial public offering market by storm, and income trusts quickly became a very important part of Canadian capital markets. In particular, in a low interest rate environment, retirees found it a very attractive product. The firm was, if not the first, then among the first, to create income trust structures. Erik Richer La Flèche was among the leaders in pioneering the concept in Canada. In the late 1990s Quebec’s Great Lakes Hydro Income Fund became the first business income trust in Canada, the result of an idea that had been born in Laos while Richer La Flèche was part of the original band of road warriors seeking (and getting) work all around the world. This idea culminated in opening up a whole new market as investment bankers realized that these structures could be adapted for clients outside the traditional range of organizations that had long-term, predictable, income streams as diverse as that generated by Yellow Pages. This form of security shaped the capital markets for more than a decade. The firm had a dominant position on both sides of different transactions and, because of its expertise and important first-mover advantage, acted on a very high percentage of all of the deals that came to the capital markets. The expertise soon spread to Toronto, where that office became a major player in the market. In the Montreal office, we were involved in almost all Quebec income trusts and they were, for a decade or more, the backbone of the securities practice. A number of Stikeman Elliott lawyers became leaders in the field, including, among others, Simon Romano, Jeff Singer, Joel Binder, David Weinberger, and Martin Langlois in Toronto, Jean-Marc Huot and André Roy in Montreal, John Anderson and Jonathan Drance in Vancouver, and

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Chris Nixon and Stuart Olley in Calgary. Romano wrote the first (and likely only) book on the subject, a mass market book published by Wiley that became a Canadian business bestseller, selling more than 5,000 copies and topping the business book charts for some time. It also generated almost $250 in net royalty income for Romano, but did lead to many television appearances. In fact, at the time of the now semi-infamous “Halloween massacre,” the date in October 2006 on which federal Minister of Finance Jim Flaherty infuriated pensioners and industry players alike by announcing that the federal government was going to prevent the creation of further income trusts and would tax existing income trusts in the same manner as corporations after a transition period, reversing a previous campaign promise to leave them alone, Romano was working on creating the granddaddy (or grandmommy, depending on one’s preferred turn of phrase) of all income trusts, to hold Bell Canada’s telecommunications empire. The government’s announcement came while he was playing “beer league” hockey. The Globe and Mail reached him moments after the game and included some nice quotes about his time (spent in happy ignorance) in the hockey rink. His teammates were upset that the resulting story did not mention the team name (which, for the record, was the “Arrows,” its logo that of another Canadian invention snuffed out by an earlier Conservative government, the Avro Arrow jet fighter aircraft). Bell Canada went on to create corporate legal history with its proposed sale in 2007 to a pension fund and private equity consortium and some of Romano’s teammates went on to great heights, including Mark Wiseman, who in 2012 became the head of the Canada Pension Plan Investment Board. The income trust lawyers at the firm, who had laboured busily during the US dot-com downturn, were worried by the likely effects of the government’s clampdown. The result, however, was a burst of income trustrelated m&a and restructuring activity that kept them busy through 2011. One exception to the new tax regime was trusts based on non-Canadian property and as a result we have seen, in 2011 and 2012, the rise of some US oil- and gas-based “foreign asset income trusts” that may yet start another, although likely smaller, wave of income trust activity. Romano speculates that it is a strange world indeed that brings companies from what has always been the deepest and most efficient capital market in the world to list on a Canadian stock exchange. One of the unexpected spin-off benefits of the rise of income trusts was the recruitment of many outstanding lawyers to the Toronto office. Singer, Weinberger, and David Ehrlich were a set of income trust and real estate investment trust–focused securities lawyers who joined the firm in September 2003 from Goodmans to help us grow our trust, securities, and underwriting practice. They have contributed significantly to our year over year top-tier rankings in securities and corporate finance. Binder was recruited

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after working for the underwriters on the Livingston International income trust deal, based on the country’s leading customs broker, led by Romano (for the issuer) in 2002. As Romano tells the story, he called Binder shortly before the year-end holidays and asked him to plan to have lunch in the New Year to talk to him about joining Stikeman Elliott. Binder promptly said he was happy where he was, at Faskens, but the thought obviously nagged at him over the holidays and, by the time they had lunch in January, he was very happy to explore joining the firm. He, too, has been a major contributor to the growth of our corporate finance and structured product practice, with a particular focus on investment funds, coffee shops, and lobsters. (Two of his well-known clients are Second Cup and Clearwater Lobsters.) In a similar vein, Jay Kellerman, now Toronto’s incoming managing partner and a dean of the firm’s global mining practice, then at Smith Lyons (now Gowlings), invited Romano to lunch to recruit him to join Smith Lyons. Romano reportedly said something like, “That’s silly – why don’t you come to Stikeman Elliott instead?” and the rest is history. The significance of these illustrative stories, from a historical perspective, is that opportunities were recognized and we jumped at them. Income trusts became a Big Thing. In the financial world, there are cycles and fads; there will be a next Big Thing and we will recognize it as well. The Plan to Privatize bce Inc. During the period from February 2007 to December 2008, the firm was involved in a transaction that would have seen bce Inc. go private as a result of a bid by Ontario Teachers’ Pension Plan, Providence Equity Partners, and Madison Dearborn Partners – except that, in the end, after thousands and thousands of hours of work, the transaction never proceeded. The transaction, the largest merger and acquisition undertaking in which the firm had been involved, formally began with the filing in April 2007 by Teachers of a Schedule 13D Report with the Securities and Exchange Commission, which indicated that Teachers, the largest shareholder of bce Inc., would explore options in respect of its holding in bce, which was widely understood by the market to mean that Teachers, together with other parties, might launch a take-over bid for bce. Stikeman Elliott was retained as m&a counsel for bce. The partners in charge of the file were Bill Braithwaite and Waitzer in Toronto and Huot in Montreal, together with a considerable team of our lawyers, at various times over the course of 2007 and 2008. Lawyers involved included securities, m&a, tax, regulatory, and litigation partners with their teams. Stikeman Elliott was responsible as lead counsel on the m&a aspects, while Davies Ward Phillips Vineberg was the principal litigation firm, with assistance provided by the Stikeman Elliott team.

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The initial deal for the company, following an extensive auction process, was reached on June 30, 2007 whereby the consortium led by Teachers would acquire bce for the price of $42.75 per share, corresponding to a consideration close to $40 billion. The transaction was approved by 97 per cent of bce shareholders on September 21, 2007. During the time that all of the conditions of closing were in the process of being fulfilled, particularly in the areas of regulatory, securities, and m&a, including the need for approval of the plan of arrangement by the Quebec Superior Court, Bell Canada’s bondholders began to express opposition to the transaction, eventually leading to extensive litigation for the first six months of 2008. On March 7, 2008, Mr Justice Joel Silcoff of the Quebec Superior Court approved the plan of arrangement and dismissed the claims made by the bondholders. The bondholders appealed to the Quebec Court of Appeal, which heard the appeal six weeks later (sitting with a panel of five judges instead of the normal panel of three judges, in view of the importance of the case) and which rendered a unanimous judgment on May 21, 2008, allowing the appeal and reversing the decision of the lower court. A motion for leave to appeal to the Supreme Court of Canada was immediately filed and leave to appeal was granted on May 26, 2008. The appeal was heard on a remarkably fast track and a unanimous judgment was rendered off the bench on June 20, 2008 (with reasons to follow), allowing the company’s appeal and restoring the judgment of the Quebec Superior Court that had approved the plan of arrangement. Interestingly enough, the appeal was heard by only eight of the nine Supreme Court judges, so when the judges entered the courtroom, experienced counsel would have known that there was no practical likelihood of a split decision. The Supreme Court of Canada demonstrated that it could handle a complex commercial appeal in real time. The Quebec commercial Bar has responded by encouraging the Quebec courts to develop a greater familiarity with commercial issues. During the discovery process, the bondholders had made requests for thousands of documents, hard drives on computers, and other materials and evidence, production of which involved practically the entire Davies Ward offices in both Montreal and Toronto. They were unable to handle the volume and, on a Thursday evening, called Stikeman Elliott for assistance. By the next morning, we had assembled a team of more than fifty from all sections of the firm, including articling students and members from the Toronto office, which worked all of Friday, Saturday, and Sunday. It was a demonstration of how we are able to mobilize resources and pull together on a last-minute problem. When the time came for the hearing in the Supreme Court of Canada, it was well known that it would be an important case, for the media as well as the investing public. Aside from a minimal allocation of seats for the parties themselves and the lawyers appearing as counsel, the Supreme

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Court of Canada has no reserved seating. A few of our lawyers, including Huot and Benoit Dubord, who had done a great deal of work on the project, wanted to attend the hearing. The key was to be sure to be among the first in line to get into the courtroom. The solution was to book rooms in a hotel overlooking the square on which the Supreme Court of Canada is located and to check regularly all through the night to see if there were people lining up. The line-up began about 5:00 a.m., so our people went down and got in line as well. They arranged for regular substitutions and for coffee and, as a result, got five seats in the front row to listen to the arguments and to bask in the off-the-bench decision dismissing the bondholders’ action. Following the Supreme Court of Canada’s decision and in light of the financial crisis that was affecting US and international banks, including the banks that had undertaken to finance the acquisition, the transaction was renegotiated between the consortium and bce in July 2008 to extend the closing date to December 2008. All closing preparation work was executed over the following few months and, so certain were the parties that the transaction would close, bce’s business plan was replaced with the plan put forward by the consortium. However, the financial crisis reached its peak in the fall of 2008 and, as a result of the sharp decline in the equity markets, one of the closing conditions, which required the issuance of a solvency opinion in respect of bce post-transaction by kpmg (a great deal of debt was to be incurred in connection with the reorganization), could not be met. This ultimately had the effect of terminating the transaction, which had been essentially ready to close. It would have been the biggest privatization transaction in Canadian history and the largest leveraged buy-out in North American history. If there were a silver lining in this dense cloud, it is that bce would not be privatized and would continue as a stand-alone public company and a valued client of the firm. as s e t- bac k e d c o m m e rc i a l pa p e r – t e e t e r i n g on the brink It will likely be several years before we know how close to the brink of financial disaster we came in this period, or before anyone will admit how close both institutions and governments may have come to the edge. Stikeman Elliott played a central role in resolving the problems affecting the Canadian asset-backed commercial paper (abcp) market from 2007 onwards. These problems were bellwethers of the larger turmoil that was to affect world financial markets generally in 2008 and beyond. Between 2004 and 2007, as an outgrowth of our already well-established securitization practice, the derivatives group in the Toronto office became actively involved in the relatively new market in Canada for credit

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default swaps (cdss). Partners such as William Scott, Philip Henderson, Jason Kroft, Michael Carman, and Mark McElheran were all engaged in documenting such transactions, primarily on behalf of foreign bank clients. The business experienced exponential growth, particularly in cdss with so-called “third-party” asset-backed commercial paper conduits sponsored by companies such as Coventree, Newshore, and Quanto. The conduits entered into the cdss in lieu of securitizing traditional assets such as mortgages, car loans, and credit card receivables. Conduits would raise funding in the commercial paper market in order to collateralize their obligations under cdss. The foreign banks were typically required to provide liquidity facilities that could be called if a conduit was unable to raise funds due to a “general market disruption.” The existence of such liquidity facilities were a condition of Dominion Bond Rating Service (dbrs) rating the conduits’ commercial paper. The financial markets experienced increased turmoil throughout 2007. Matters came to a head in Canada in August of that year when, spooked by concerns about exposure to sub-prime mortgages, investors in the commercial paper of third-party conduits ceased to “roll” their paper. Conduits could not find repeat or new buyers for their paper in order to repay their maturing paper. Sponsors declared a “general market disruption” and sought funding under their liquidity facilities with the foreign banks. The foreign banks in turn disputed that a general market disruption existed because, among other things, the Canadian Schedule I bank-sponsored portion of the market, which represented approximately two-thirds of the total market, continued to roll. At the same time, many of the foreign banks made collateral calls on the third-party conduits, which, because their segment of the market had seized up, were unable to raise the funding required to meet such calls. In the face of imminent defaults and huge losses, potentially running into billions of dollars, several major financial institutions who had invested heavily in third party abcp, including Caisse de dépôt et placement du Québec, Public Sector Pension Investment Board, Desjardins Group, and National Bank, invited foreign and Canadian bank participants in the Canadian cds market to an emergency meeting in Montreal on August 15, 2007. A standstill agreement to permit a long-term restructuring of the abcp market was hammered out through the course of that evening. This agreement, which consisted simply of a three-page press release signed by the participants, came to be known as, in a term coined by Scott, the “Montreal Accord.” The subsequent restructuring process under the Companies’ Creditors Arrangement Act, involving hundreds of cds transactions and $35 billion worth of assets and liabilities spread across some twenty-two different conduits, was far more complex than anyone had initially anticipated.

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Stikeman formed a deal team led by Scott and Peter Howard, which included Kathleen Ward, Jamie Davis, and other partners in the Toronto derivatives group, together with phalanxes of associates and students. At its peak, the group comprised some forty lawyers. The Stikeman team worked closely with the New York office of Allen & Overy. The team met daily in the abcp “war room” on the forty-ninth floor of our offices in Commerce Court West to review the state of play and plan next steps. The Stikeman team and our clients had to negotiate restructuring terms with, on the one hand, a committee of major abcp investors chaired by Purdy Crawford, which was advised by jp Morgan and the Goodmans firm and, on the other hand, the Schedule I Canadian banks represented by McCarthys. A key element of the restructuring was new limits placed on the ability of the foreign banks to call for additional collateral to offset their exposure on cdss. In return, additional initial collateral had to be provided by abcp investors and other interested parties as a condition of the restructuring. The Canadian banks were brought into the process because most had been involved in selling third-party abcp to clients and regarded the releases from liability under the ccaa plan as a precondition to making any contribution towards this additional collateral. Armies of lawyers were involved in the restructuring. Apart from Goodmans and McCarthys, they included Skadden Arps representing BlackRock, the administrator of the restructured trusts, Davies Ward representing dbrs, Borden Ladner acting for the ccaa monitor, Faskens acting for various conduit trustees, and Bennett Jones representing various indenture trustees. Marathon negotiating sessions became the norm and were complicated by the many competing interests in play. Scott said on one occasion, “This was not a case of there being an 800 pound gorilla in the room – the entire room was full of 800 pound gorillas.” The Montreal Accord standstill initially had a term of sixty days but ultimately stretched out to seventeen months with numerous agreed extensions. Many of the extensions involved hard bargaining and high drama. At times the standstill was in danger of falling apart and for short periods was kept together by a nightly e-mail between Scott and Jim Riley (formerly of Stikeman Elliott but by that time at Goodmans). Seeming impasses in negotiations were often resolved through informal meetings at a downtown Starbucks between Riley, Scott, and Howard (the latter two having been mentored by Riley when he was at Stikeman Elliott). The ccaa restructuring plan was appealed by certain abcp noteholders who questioned the legality of the very broad releases that formed part of the plan. The Ontario Court of Appeal ruled in favour of the proposed plan. There was a further application for leave to appeal to the Supreme Court of Canada, but this was refused. Howard and Samaneh Hosseini represented the foreign banks in these proceedings.

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The restructuring was unusually challenging because of the complexity of the assets and liabilities involved, the huge sums of money at stake, the novelty of some of the restructuring steps used, and the fact that the restructuring took place in the midst of the financial turmoil of late 2008, when a number of the foreign bank participants Stikeman Elliott was representing were facing existential challenges of their own. By December 2008, deteriorating market conditions made it necessary for the Crawford Committee to ask the federal, Quebec, Ontario, and Alberta governments to provide additional collateral support in order to arrive at a restructuring proposal that was acceptable to all key stakeholders. A deal with the governments was struck on Christmas Eve 2008 and the ccaa restructuring ultimately closed on January 21, 2009. It is the largest ccaa restructuring in Canadian history to date, the only privately negotiated market restructuring arising out of the financial crisis and was recognized by Lexpert magazine as the “Deal of the Year” for 2008. no-fail missions An interesting example of the ability of the firm to respond to challenges can be seen in our representation of FLSmidth & Co. a/s in its acquisition of certain of the business assets of Groupe Laperrière & Verrault Inc. The mandate came from a contact of Brian Rose and the client was one of the top-tier public companies in Denmark. When Rose learned that the target company was in Trois-Rivières, he referred it to William Rosenberg in Montreal. Rosenberg was recovering from a concussion and was not available to take care of the matter, so it fell to Benoit Dubord, then a first-year partner in the securities law, m&a, and public financing practice group. 2007 was, as Dubord says, “a crazy busy year,” in which the business lawyers were jumping from deal to deal with hardly a moment to catch their breath. The Danes announced that they would be in town on the weekend to begin the negotiations. They were represented by their chair, one of the most distinguished and highly respected of Danish businessmen, the chief executive officer, and the chief financial officer. Their chief legal officer was not present. The proposed transaction was largely seen as the chair’s deal, one that he wanted to get done as, in effect, his last great gift to the company. He had recently driven a major reorganization of the company, which had previously expanded and diversified to the point that it had lost its business focus, to get the company back into its core business of mineral processing. The subtext for everyone was that this deal simply had to get done. Dubord brought Robert Hogan from the tax section with him. The chair was clearly surprised to see such young lawyers but did not object. The lawyers, for their part, were surprised that the deal they were working on,

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in Trois-Rivières, was for well over a billion dollars, and this for only a piece of the target company. In addition to the minerals portion of its business, Groupe Laperrière & Verreault also had water power interests and shops for the repair and renovation of paper machines. The Danish chair had no interest in those businesses, having just divested a batch of other businesses in the reorganization. The challenge was how to separate the minerals assets from the rest of the company assets, which led to a strategy of carving out the mineral assets. Hogan was in his element and he became the effective senior partner on the deal, impressing everyone with an array of charts and diagrams to show how the transactions would proceed and how the organization would look once the transactions were completed. Somewhere in the process, the firm’s Montreal management realized that, Trois-Rivières or not, this was a $1.3 billion deal and they sent Franziska Ruf to babysit the thirty-year-old Dubord. The mineral assets were located in several different countries, through a series of subsidiary companies, and these assets also had to be carved out of each company for purposes of the transaction. Michel Gélinas and three associates were brought in to do the due diligence and the carve-outs. Each was assigned seven jurisdictions in which they were to engage, instruct, and supervise local counsel to achieve the carve-outs. The transaction was completed and the shareholders of the target company got a combination of cash and shares in a new public company, which now held only the water power and pulp and paper assets. It was a typical example of getting things done and of the responsibility assumed by young lawyers of the firm in high-pressure situations in which failure is not an option. cirque du soleil Although the pace of major transactions slowed dramatically in 2008, the firm nevertheless remained very active. We represented Dubai-based Istithmar World Capital and Nakeel in their acquisition of a 20 per cent interest in Cirque du Soleil for $600 million. This was one of the growing number of sovereign wealth fund transactions. It was an interesting mix of cultural challenges, as Guy Laliberté, a former street entertainer who had built up a world-leading business valued at some $3 billion, negotiated with state-backed purchasers for whom that amount of money was probably little more than pocket change. Laliberté was no fool by any measure and whenever there were negotiations at the Cirque’s Montreal offices, he made sure that there were Cirque du Soleil practices taking place that could be seen by the prospective purchasers, no doubt to remind them what they might be buying into, but also to provide some distraction as the incredibly talented performers seemed to make easy things that most mortals cannot even imagine doing.

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brazil Our client, Companhia Vale do Rio Doce (cvrd – now Vale) is the largest publicly traded mining company in Brazil. Its first takeover bid outside Brazil was an unsolicited bid for a Canadian company, Canico Resources, whose principal asset was a nickel property located close to a Vale operation. A team led by Braithwaite and John Ciardullo was assembled for purposes of the Canico transaction. At the time, hostile bids in Canada were rare and Vale was reluctant to make its first foray into Canada a hostile one. Added complexity came from the fact that a confidentiality agreement between Vale and Canico had a weakly drafted “standstill” clause. Braithwaite and Ciardullo thought there was a way around the clause and that it could be circumvented, but that might well have led to litigation, which would not have been productive. Instead, the deal team came up with a novel strategy, whereby Vale’s ceo would approach his counterpart at Canico to indicate that he was prepared to go hostile and that he was confident that his lawyers had found a way around the contractual standstill clause. As an alternative, he would offer to launch a bid at a modest premium to market and structured in a non-coercive manner as a “permitted bid” under the Canico rights plan so long as the Canico board would not take steps to prevent the Vale bid from being considered by its shareholders. After some back and forth, the Canico board agreed. Braithwaite and Ciardullo (demonstrating that their expertise lies wholly in m&a, not nomenclature) coined the phrase “non-hostile, but nevertheless unsolicited.” Several weeks later, Vale made a slight bump in its offer price, which was ultimately accepted by the Canico shareholders in a friendly $1 billion transaction. Braithwaite noted that the major downside of friendly transactions, especially in the hot mining and metals sector, is that bidders often have to pay huge premiums to get the support of the target and the beauty of the Canico deal was that the client was able to get to the same place at a relatively low cost. While the Canico deal was an interesting transaction, it was only a dry run for Vale’s entry into the big leagues of Canadian m&a. We became involved on its behalf when the company waded into the battle underway for control of Canadian mining giants Falconbridge and Inco. The saga had begun when the two companies announced a friendly combination. Vale was extremely interested in Inco, as a wonderful asset, right from the beginning, but was persuaded that it would not be wise to rush into the fray. The better strategy was to be patient and to lie in wait until it was the perfect time to emerge. The strategy required months of patience, until August 2007, when Vale (long ago written off by most as a potential bidder) suddenly delivered a knockout blow in the form of a $20 billion allcash bid for Inco, which beat out the rival cash bid made by Teck and the friendly merger agreement that Inco had entered into with Phelps Dodge.

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But it was not yet a certainty. Don Lindsay, Teck’s ceo, is a former investment banker and very talented deal-maker. He threw up a multibillion dollar “Hail Mary” in the form of an overnight-marketed attempted financing that would have given Teck the capital it needed to trump Vale’s bid. Ciardullo recalls it as one of the most tense and dramatic moments of the entire transaction. The entire deal team and a huge contingent from Brazil were camped out in a boardroom in the Toronto office waiting to see what was going to happen. Several were working the phones to check on the status of the financing, to see if Teck was going to be able to pull it off. The tension in the room was palpable. For a while it looked as if Teck might beat the odds and succeed, but then the financing started to lose momentum. Shortly thereafter, Teck announced formally that it was withdrawing the financing. The war room erupted in cheers as it was clear that, after many months of often agonizing patience, Vale was going to get the prized asset, Inco. Through this acquisition, Vale emerged as a major mining force in Canada. india and algoma In the middle of the decade, we were approached by the Essar Group, an Indian conglomerate interested in looking at the troubled Ontario-based steel company Algoma. As in the case of Vale, this would be the first public takeover by Essar in North America. There were many interesting aspects to the possible transaction, including the attempt to maintain confidentiality, especially when a management team from Essar landed in Sault SteMarie to complete due diligence. Braithwaite and Ciardullo led the firm’s deal team and a friendly transaction was negotiated. Essar is now the largest employer in Sault Ste-Marie. There was an amusing post-script. A few months after the deal closed, the daughter of one of the two billionaire brothers behind the Essar Group, Ravi Ruia, was to be married in Mumbai and the family was kind enough to invite two new Canadian friends, Braithwaite and Ciardullo, to India to attend the festivities. The Canadians inquired about the dress code for the event and learned that it was strictly black tie. A snowstorm disrupted their travel and they arrived in Mumbai two days before the wedding, without their luggage, including the black tie components. On the day of the wedding, when en route to the clothing district to see if they could buy or rent something, they received a call from the airline to say that their bags had been located and were waiting for them at the airport. They changed direction and headed for the airport, a two-hour trip in Mumbai. After spending an hour and a half in the airport recovering their bags, they enjoyed another interminable trip to the hotel. There they got into the required kit and set off for the reception, at the prestigious Mumbai Polo

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Club. On arrival, they found that they and Essar’s North American investment banker were the only three of the hundreds in attendance who were wearing black tie. They thought they might spend the evening passing drinks and hors d’oeuvres and endured a certain amount of good-natured ribbing before thoroughly enjoying a spectacular affair. Essar and the Ruia family remain good friends to this day. s e l l i n g yo u r b u s i n e s s c a n b e a n e m o t i o n a l a f fa i r Lawyers and business people often under-estimate how emotional the process of selling a business can be. Michel Gélinas was representing a private equity client that had agreed to purchase a substantial business from an entrepreneur. The entrepreneur had successfully built his business over a period of thirty years and wanted to sell, as he had no other succession plan for the business. Negotiating the purchase agreement had proven to be a long process as the entrepreneur had never been exposed to the concept of representations and warranties and had been somewhat irritated by the due diligence process, as he felt that the private equity fund did not trust his word. The entrepreneur was also frustrated by the fact that the private equity fund did not want to pay the entire purchase price at closing and wanted to hold back a certain percentage of the purchase price for several months, a not unusual practice in transactions of this nature. The issue had finally been resolved by the parties hiring an independent escrow agent that would hold a portion of the purchase price in escrow against which the private equity fund could seek recovery in the event of a breach of the representations and warranties. Finally, after several months of back and forth, closing had been scheduled for 6 p.m. on a Tuesday night. As the lawyers were going through the closing documentation, one lawyer on Gélinas’ team noticed that the cheque from the entrepreneur in the amount of $1,000 for the payment of the escrow agent’s fees had not been tabled. The entrepreneur’s lawyer was advised of this and it turned out that this requirement had not been clearly communicated to the entrepreneur. When the entrepreneur was informed that a cheque in the amount of $1,000 was required from him, he became furious. The lawyers in the room explained to him that the escrow agent’s fees were split equally between the parties, that proceeding this way was quite common and that, in any event, this was a very small amount compared to the purchase price of many millions of dollars that would be paid to him shortly. The entrepreneur thought that the fees were outrageous, especially given the fact that the escrow agent was going to invest the escrow amount in T-bills, and refused to pay. The private equity client, probably suffering from deal fatigue after a series of similar episodes over several months, said that the only reason the parties had to deal with an

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escrow agent was because the entrepreneur would not accept a holdback and that the entrepreneur should pay his portion of the fees. Both parties were now upset and as voices began to rise in the conference room, the entrepreneur said he had enough of this nonsense and threatened to walk away from the deal over what he described as a matter of principle. As Gélinas saw the atmosphere in the room deteriorate, he thought that the entrepreneur might be experiencing seller’s remorse and no longer wanted to sell the business, because the sale meant retirement for him. In a bid to save the deal, Gélinas approached the entrepreneur and asked him if the $1,000 payment was the only thing holding up the deal, to which the entrepreneur replied “Yes.” Gélinas responded that the parties had worked hard for many months to get the deal done, that the last few days had required a lot of effort from everyone, and that it would be unfortunate to walk away from the deal when the finish line was so close. He said that in order to resolve this last issue, Stikeman Elliott would pay the $1,000 on his behalf. The entrepreneur was caught off guard and because he had just indicated that this was the only issue outstanding, he had no choice but to say that he agreed and that the deal would proceed. After a few minutes, as the tension decreased, the entrepreneur, probably thinking that having the other party’s lawyer pay for his expenses was silly, declared that he would, after all, pay the $1,000 fee. The private equity client then told the entrepreneur that he would invite him to one of Montreal’s finest restaurants and treat him to Dom Perignon. On that note, the parties exchanged signature pages and the deal officially closed.1 defending against the largest hostile bid ever m a d e i n c a n a da While the firm had clearly demonstrated considerable expertise acting for foreign acquirers looking at transactions in Canada, it also did its part to protect its Canadian clients when they came under siege at the hands of would-be foreign acquirers. During a face-to-face meeting in August 2010, Marius Kloppers, the ceo of bhp Billiton, delivered a take-over bid to Bill Doyle, the ceo of Potash Corporation of Saskatchewan Inc. PotashCorp was given a week to

1 Many years ago, in Montreal transactions, deals sometimes foundered over the issue of season tickets to the Montreal Canadiens games at the Forum. In days when the right to buy Canadiens tickets was so much in demand that such rights often passed by will from one generation to the next, the emotions at the closings of transactions often got out of hand and sellers walked away if the buyer insisted on the tickets, or buyers walked away if the tickets were not part of the deal.

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respond and was asked to keep the proposal confidential. While the PotashCorp bid is usually remembered as the “deal blocked by the federal government,” for those who study it carefully, it is a classic case of the benefits of being prepared. For a number of years, the PotashCorp board July meetings had included sessions devoted to reviewing its takeover preparedness. One year this exercise included acting out a simulated takeover approach. None of this was done based on knowledge of anything imminent but it was one of the aspects of the business about which the board felt it should be prepared. When Kloppers approached Doyle, it was less than a month after the board’s most recent banker and lawyer update on takeover preparedness. Because the management and board had already had recent discussions with the company’s bankers regarding value, the board was able to meet in person to consider the proposal and decide within four days to reject it. The board’s judgment was, however, that if it did not engage with bhp, bhp would go “hostile.” PotashCorp decided to go on the offensive – it publicly announced the bhp proposal, rejecting it as wholly inadequate and giving its reasons for the rejection. This caught bhp completely off guard and it took them a day to respond. In the meantime, PotashCorp had gotten its story out and bhp was scrambling. This tactical step had been possible only as a result of good preparation as under US laws PotashCorp was restricted from speaking publicly once bhp launched its bid – which it did on the Friday, three days after PotashCorp had gone public – until the PotashCorp board had released its directors’ circular. The board met that weekend to approve the circular, which was released on the Monday. Beginning Monday, therefore, PotashCorp was free to continue to get its story out, without missing a beat. In fact, in what may be a “first” in corporate takeovers, the directors’ circular was mailed to PotashCorp shareholders days before bhp was able to mail its takeover bid circular. Before the PotashCorp deal it is unlikely that many Canadians outside Saskatchewan had heard of Brad Wall, but his passionate rejection of the bhp bid proved to be a game changer and he is now practically a household word in the Canadian business community. After his first speech in Saskatchewan in which he explained the reasons for his position, he took his show on the road, which included a lunch address at the Empire Club in Toronto. That morning, we got a call advising us that Premier Wall wanted a “prop” – a chunk of potash. Ontario has considerable natural resources, but one that it does not have is potash. The problem was solved when it was discovered that Braithwaite had a sample in his office from one of his PotashCorp mine visits. He agreed (lawyers are not stupid) to lend it to the premier and it was delivered to the Royal York Hotel just before noon. Wall began his first speech on Bay Street by holding Braithwaite’s souvenir over his head, declaring “This is what this takeover is all

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about.” In November 2010, the bhp bid was turned down by federal minister Tony Clement under the provisions of the Investment Canada Act. The PotashCorp board was able to take full advantage of its preparedness partly because of the ability of Stikeman Elliott to respond with the necessary support. Our team was headed by Braithwaite, assisted by Ciardullo and many others. The bid letter was delivered on a Thursday, with a special telephone board meeting called for the following day and a full in-person meeting to be held on Monday. Much had to be done to get ready for that board meeting. As luck would have it, Mike Devereux, an associate in the Toronto office and a key member of the Stikeman PotashCorp team, was getting married on Saturday. The other members of the team left the office on Saturday with just enough time to get home to get changed to attend the wedding and arrived as the couple were walking down the aisle. After the ceremony and before the reception there was a deal caucus in the corner with members of the deal team, including the groom. Members of the deal team were told to make sure they did not stay late and were back in the office first thing Sunday morning. They were semi-merciful with Devereux, who did not have to return to the office, although he participated in a number of conference calls while in Niagaraon-the-Lake. It was Devereux who came up with the code names for the bhp defence – Project Napa. All the participants were named after California wines, PotashCorp being Opus and bhp, Hess. Lawson Hunter joined the team shortly thereafter and became a key member as the deal progressed. And progress it did. The firm worked very closely with the board – attending more than twenty board meetings – as well as with management and other advisors, making sure all options for PotashCorp were explored and turning out documentation in record time. At one point in the transaction, perhaps as of a result of all the flying involved, Braithwaite developed an eye infection and needed to wear sunglasses at all times, even during PotashCorp board meetings. At a breakfast meeting with Wayne Brownlee, PotashCorp’s cfo, at the Four Seasons Hotel during the Toronto Film Festival, Braithwaite, in his sunglasses, fit right in with the movie crowd, slightly higher up the food chain than the Blues Brothers. new horizons The firm was founded on the basis of new fields of law at the time, corporate and tax. This is not to suggest that there had never been legal work done in either area before Stikeman and Elliott began their own firm, but no firm had overtly specialized in those disciplines and both were increasingly important and increasingly complex in the post-war boom about to be enjoyed by Canada. The precedent set on that occasion has continued

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ever since and there are few aspects of business law in which the firm has not been active. The late twentieth century and early twenty-first century have brought with them a number of opportunities for the firm and all have been seized with great enthusiasm. Many of these have a direct or indirect connection with our focus on global activities, from which we have developed new ideas or imported knowledge back into Canada for innovation in the domestic forum. Public-private partnerships (ppp) The field of public-private partnerships appears to be opening up in Canada. Work experience abroad allowed us to seize the growing opportunity offered by Canada’s infrastructure deficit and the necessity of putting the public and private sectors together in order to meet the responsibilities of the public sector. Public-private partnerships were common in Australia, the United Kingdom, and a few European and Asian countries, but not in Canada. The first ppp in Quebec was the A-25 toll bridge between Montreal and Laval, a project that had been more than thirty years in the making. We represented the winning Australian bidder, Macquarie, on the basis of a bid to provide services, in which our foreign experience was essential. The A-25 project was ranked by Euro Money as North-American ppp of the year in 2007. Richer La Flèche had been retained by Macquarie in 2005 and since then has been involved in every large ppp in Quebec, including the chum (Centre Hospitalier de l’Université de Montréal) ppp that, in 2011, was the first ppp in Canada to be selected by Lexpert as one of the top ten commercial deals in Canada. His role in the chum project resulted from the work done on the Quebec A-25 project. He also helped put together a bid to assist Infrastructure Ontario in connection with Ontario’s first public-private partnership, the $2 billion Windsor-Essex Parkway, which was won by a team centred in the Toronto office. Clients in the ppp sector include many Europeans, primarily from Spain and France, and our experience in Africa, India, and Mexico has been particularly important in supporting our entry into the field. Our Vancouver office has also been active in this work, since the British Columbia government has been a Canadian leader in the sector and the province is a prime market for such activity, with the result that we have advised bidders on syndicates looking at the Sea to Sky Highway, the Highway 1 Port Mann Bridge Replacement, Anthony Henday Drive (in Edmonton), various hospitals, police headquarters, and others projects, all of which generally have high visibility and are complex and high value projects. Michael Allen has been involved in more than twenty-five ppp transactions under the jurisdictions of bc, Alberta, Ontario, the federal government, and Bermuda. His work has been practically all on the lender-side, working for bank lenders, bond

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underwriters, or both, in hybrid financing solutions. The sectors have included transportation, healthcare, justice, education and real estate projects. His reputation as a first-call professional extends far beyond bc, since the bulk of his work in ppps comes from outside the province. The ppp model is increasingly being used in the rest of North America. Tough budgetary constraints are forcing a search for creative solutions to financing required development projects such as affordable housing, schools, public transit, and water facilities. From the perspective of providing legal services, this creates a large opportunity, particularly because most US law firms do not have ppp expertise and need co-counsel to reinforce any offerings they may be contemplating. From our firm’s perspective, the best solution for such US firms is to find non-threatening co-counsel, especially since many uk firms have full-service US offices and US firms are, therefore, reluctant to use them. Examples include Davies Ward’s Toronto office becoming involved in the Miami Tunnel ppp, a very large and visible project. Bouygues had hired a major Florida firm with the usual political links and then, because it had no ppp experience, asked Davies Ward to joint venture with that firm. Holland & Knight did the same thing with Stikeman Elliott in connection with a high-speed rail project in Florida. (Unfortunately, as a result of a change in governor, the project is dead.) As networks expand, so does involvement in ppp. Beginning in January 2012, thanks to Kellerman, Richer La Flèche has been working on a rail and road concession in Armenia for the sponsor of the project, which has involved designing and drafting both concessions. energy Importation of experience garnered abroad has made it possible for the firm to enter new fields in Canada, particularly in the power area, such as renewable energy. Renewable energy has begun to rise to the top of government policies as a substitute for petroleum-based power and in addition to hydroelectric capacity. The Quebec government’s policy, for example, is that 10 per cent of the electricity generation capacity in Quebec should come from wind. The firm is now involved in approximately half of the wind megawatts capacity being installed in Quebec on behalf of clients who are primarily European and Japanese. Experience in this sector of the economy was derived from power work done in India during the 1990s. In 2011 Canada ranked sixth globally in terms of new installed wind energy capacity and global wind power capacity. Approximately seventy-five countries worldwide have commercial wind power installations, with twenty-two of them already passing the one gigawatt level. In 2011 Canada’s wind energy industry enjoyed a record year with approximately 1,267 megawatts of new wind energy capacity added to provincial grids, repre-

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senting an investment of $3.1 billion and creating 13,000 person-years of employment. At the end of 2011 Canada had a total of 5,265 megawatts of installed wind energy capacity, placing it ninth globally in cumulative capacity. As an example, in 2011 new wind energy projects were built and commissioned in British Colombia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, and Nova Scotia. 2012 is expected to be another record year for wind development in Canada with approximately 1,500 megawatts of new developments expected to come on line in Quebec, Ontario, Alberta, British Colombia, pei, and Nova Scotia. A longterm objective is for wind energy to supply 20 per cent of Canadian electricity needs by 2025. Knowledge of the power sector both abroad and at home has allowed us to bid for and win mandates to represent US companies wishing to enter into long-term power purchase agreements. Transactions of this nature are one of the principal priorities of the Quebec government, since major new hydro-generation facilities and a reduced demand for newsprint have left Quebec with a large electricity surplus. Even though there are willing buyers on the US side of the border, there are several constraints, one of which is technical: in order to export electricity from Quebec, new high-voltage transmission lines are required and there has been surprisingly strong local opposition to the construction of such lines. Another is political: the advent of plentiful shale gas in the United States has led to a reduction in the price of US power and Quebec is reluctant to sell its power in the United States at what might appear, to some in Quebec, to be a very low price, especially in long term contracts. In addition, Quebec has ongoing discussions with the province of Newfoundland and Labrador (through their respective entities, Hydro Quebec and Churchill Falls Labrador) regarding the price of electricity developed from the Churchill River and there is litigation, still ongoing, in the Quebec courts through which Newfoundland and Labrador is seeking an adjustment of the original contractual price for that power. We are co-counsel in the litigation, and Stephen Hamilton is acting on behalf of the claimant, Newfoundland and Labrador. Our real estate group, led by Jim Harbell, has been heavily involved in building and financing power projects, both renewable (wind and solar) and conventional. A few large transactions include Sithe Global Power’s development, financing, and sale of the 800 megawatt Goreway Station, the financing of a number of ground mount solar projects for edf en Canada, and acting for the SunPower Corporation in connection with its entry into Canada and the development and financing of various solar farms. Knowledge of what goes on in foreign markets “on the ground” provides an advantage for the firm in its ability to assist Canadian clients who may be seeking investments in emerging markets around the world. This can range from strategic objectives, to assessment of risks (including exposure

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to corruption), to the existence of our extensive legal and business networks, to the ability to negotiate general or particular aspects of potential investments, and to efficient structuring of investments for tax and regulatory purposes. In new practice areas, such as ppp, renewable energy projects, mines, and project finance, practices across the firm must be genuinely collaborative. Most of such projects are done essentially the same way in bc as they are in Ontario and Quebec. There are few barriers to entry (the use of French in Quebec may, in effect, be the only one). Moreover, clients do business across Canada. As a result, it is in the best interests of everyone involved to cooperate. The lesson has been taken to heart and the two practice groups of ppp and energy have consistently exhibited the most robust collegial attitude. It is in our collective best interests to make sure that all of our offices are equally strong, since a weak office in one location could negatively affect our chances of being invited to bid for work in other provinces. Experiences in these newer areas of practice provide a number of valuable lessons. One is that these clients are very cost-conscious, which encourages law firms to become ever more efficient, even though there is a risk of this becoming a vicious circle. Prices seem, however, to have stabilized somewhat and pricing is somewhat less of a dominant factor. On the other hand, efficiency lessons learned in ppps can be applied in other areas. Since each ppp is, in effect, a stand-alone business with all the diverse legal needs that implies, the ppp business must be viewed against a longer-term horizon. The transactional model is not applicable here. There is an inherent advantage for larger firms, since they have more resources and can share experience learned in other jurisdictions. Also, large firms generally have first-mover advantage. Over time, the barrier to entry (experience, deals done, etc.) becomes so high that smaller firms have a difficult time entering the market. Their route for entry, for example in a smaller market, such as Saskatchewan, tends to be through acquisition of the necessary experience as a result of joint ventures with large centre firms. One more element learned from our work abroad is how to win work through competitive processes: more and more legal work is being acquired in this manner, such as requests for qualification and for proposals, as well as alternative billing in the form of fixed-fee jobs or capped fees. Most of our work done abroad was won in competitive circumstances. As a result, at a time when such arrangements are spreading to other Canadian work, we already have more than twenty years of experience acquiring work in this manner. In Canada, work in ppps, infrastructure, project finance, and energy is generally awarded pursuant to competitive processes and subject to fee constraints.

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quebec’s plan nord The Quebec government has announced an extensive project for development of the northern region of Quebec, described as Plan Nord, which at this stage is perhaps less a plan and more a branding or marketing exercise, but the prospect of opening Quebec north of the 49th parallel has already caught the attention of many of the world’s largest raw material consumers. Interest from China and India, for example, has been particularly strong. Among the opportunities Plan Nord will provide will be those in mining, infrastructure, and electricity, all areas in which the firm is quite strong. An additional advantage derived from the existence of and activities of our China and India interest groups will enable us to identify opportunities long before they reach our shores. First Nations Other than as a part of some of our diversity initiatives, we have been slow in developing a coordinated approach to First Nations. There has been a need for first-class legal services in dealing with many of the issues affecting these groups and, with initiatives such as Quebec’s Plan Nord and ongoing issues of environment, health, and status, these needs can only increase. As recently as April 2012, when we won a mandate in Toronto for a First Nations community health care facility in downtown Toronto, it had been a challenging exercise to try to pull together the firm’s experience in representing First Nations. Frédéric Pierrestiger negotiated complex impact agreements with First Nations in the context of the Tata iron ore investment in Quebec and Labrador. Maxime Turcotte, Ma Ry Tran, and Richer La Flèche have been assisting a First Nations band in Quebec on a proposed wind power project in preparation for the next wind power call for tenders to be issued by the Quebec government. When that occurs the First Nations band will bid, assisted on the financial side by a former Macquarie banker. Eugene Kwan has good relations with many First Nations leaders in bc, having acted for many First Nations groups and bands at his previous firm. Richard Jackson and Bruce Woolley have established relationships with three First Nations Bands and their lawyers in the course of acting for the British Columbia government in the three treaty settlements of aboriginal title in bc and have a continuing role in advising the government in its efforts to conclude more settlements. Some of the larger urban bands are clients of national firms, but some of the First Nations bands’ traditional and reserve lands are now of interest to resource companies, with the result that they are looking for more sophisticated representation than the local law firms they have used thus far can provide. Organizationally, this

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will involve much the same approach as in other sectors, namely identifying an interest group from each of the Canadian offices who will then get together to come up with a strategy. attacking the sectors It is not easy to describe the huge volume of legal work performed by the firm in the course of the last decade without risking creation of a mere “brag sheet,” even though there may be much about which to brag. The various practice groups were particularly effective in developing and marketing their increasing expertise and the results of their enterprise can be seen from the brief descriptions of the diverse client base and mandates they obtained. There is no particular order to the listing of the various sectors, since all are important to the firm. Mining To take a single example, the firm has grown in its mining practice group as the mining industry has prospered over the past ten years. We were somewhat ahead of the curve when the global mining group (gmg) was established in 1997, concurrent with the opening of our Sydney office. The gmg has developed into a word-class and recognized multi-disciplinary group of lawyers working, quite literally, around the world. It draws from within the entire firm, although principally from the Sydney, London, Toronto, and Vancouver offices, and has been involved in some of the highest profile transactions involving Canada throughout that period, including the defence of the Potash Corporation of Saskatchewan, Inc., the re-emergence of Franco Nevada as a public company, and the takeover bid of Inco. It is experienced in all aspects of the mining industry, such as corporate finance, mergers and acquisitions, project finance, and commercial arrangements such as joint ventures and royalties. As Canadian miners have gone abroad and foreign miners have come to or through Canada, the firm has been there every step of the way. The gmg has been involved in mining projects in Australia, throughout Africa and the Americas, and in Eastern Europe, the former Soviet Union, and Asia. Members of the gmg have ventured with their clients by train across Turkey, by bi-plane across the steppes of Kazakhstan, and by cargo plane in Siberia. They have crossed the Outback of Australia and the Platinum Highway of South Africa. Bedrooms and boardrooms have melded into one another in a blur as meetings were held with foreign investors wanting access to the Canadian capital markets. Our lawyers have been searched when entering hotels in Mexico, Manila, and Istanbul and have been holed

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up in Europe waiting for volcanic ash to clear. They have been delayed by Mother Nature all over the world. We have hosted and been hosted by formal delegations from and in China as that giant republic has emerged in the resource sector. We have watched Beijing grow – and grow – and have been caught for hours in its notorious traffic jams. Although we have been in mines all over the world, every March the world’s mining community comes to our door in Toronto for the Prospectors and Developers Association of Canada (pdac) Convention. Over 20,000 attendees from 120 countries descend on Toronto for the world’s largest mining convention. On pdac Monday, we host our famous pdac dinner for over 200 client guests. This event began years ago as a small appreciation dinner for two dozen or so clients, but its reputation is such that we now get bombarded with requests for invitations, including some from people we do not even know. On the Tuesday of pdac week, we host our annual cocktail reception for international lawyers at the firm, an event that was once intended for a few friends but is now nearing 100 attendees. pdac week is our time each year to strengthen our connections, particularly with internationally based clients and contacts whom we see somewhat less frequently, without having to resort to riding in questionable aircraft abroad or finding them at their offices and operations in faraway places. So we divide and conquer, attending receptions and events all over the downtown core and meeting as many people as we can fit into those few great days each year. The gmg has also contributed to the betterment of the legal profession through pro bono initiatives. Likely the most interesting was the 2009 workshop attended by Jean Carrier and Quentin Markin in Mozambique. The workshop was organized by the New York–based International Senior Lawyers Project, an organization with which Ed Waitzer has a longstanding relationship through its executive director, Jean Berman. It was held four hours north of the capital city, Maputo, in the resort town of Chidenguele on the Indian Ocean. The five-day seminar advised senior representatives of the Mozambique Ministry of Natural Resources and other government departments on the substance and process of negotiating mine development agreements with foreign investors. The civil war in Mozambique, which lasted fifteen years, from 1977 to 1992, had all but ended foreign investment in the country. However, political stability, a new mining law in 2002, a wealth of natural resources, and a strategic sea location on the Indian Ocean have encouraged industry to return. The workshop was an overwhelming success, in large measure due to Carrier’s extensive experience in Guinea and other countries in West Africa. Most significant (aside from the roadside piri-piri chicken stand near Xi Xi, where the participants stopped for lunch on the road from Maputo and where no mere

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tourist would ever show up alone) was the overwhelming Chinese influence. Undoubtedly a sign of where the gmg’s efforts will necessarily focus in the future, it was impossible to ignore the Chinese work teams on the streets of Maputo, the brand new 42,000-seat football (soccer) stadium on the outskirts of the city, the gleaming marble of the new airport terminal, and the black strip of pristine tarmac highway running north from Maputo for hundreds of kilometres. The Russians Are Coming … In 2009, the mining group was introduced to an entirely new client – jsc Atomredmetzoloto, the Russian state-owned uranium mining company known by its rather ironic acronym – armz. armz is responsible for all aspects of Russian uranium mining. Its production supplies both Russian military needs and a growing civilian commercial demand in and outside Russia for “yellowcake” reactor fuel. With the latter in mind, armz embarked on a strategy of expanding beyond its borders through investment in Western mining companies. To do that, it engaged Stikeman Elliott as its Canadian counsel. Through 2009 and into 2011, armz made two significant investments: the first in the Canadian, Toronto Stock Exchange–listed Uranium One and the second in an Australian Toronto Stock Exchange– listed company, Mantra Resources. The grand total spent by the Russians approached $2 billion in cash and they also transferred interests in three uranium mines to Uranium One. What made these transactions particularly interesting was the Russians’ desire for face-to-face meetings, none of which ever seemed to occur in mundane locations. The result was that two of our partners, Markin and Amanda Linett, travelled the world in support of armz’s expansion plans. The first meeting lasted for more than seven days in May 2009 in Istanbul, negotiating with Uranium One’s counsel, Fasken Martineau DuMoulin, bmo Capital Markets, and Goldman Sachs. In April 2010, Markin found himself in Luxembourg, with armz’s internal legal counsel, structuring a deal that ultimately never saw the light of day. Its most notable feature was the intervention of the Eyjafjallajokull volcano in Iceland, which turned a three-day trip into almost ten, with Markin trapped due to the grounding of all air traffic into northern Europe. Eventually, by slow train through Basel, Switzerland, through Milan, and on to Rome, Markin managed to get on to one of the first flights from Rome to Toronto when the skies were re-opened. He appeared none the worse for the experience and seemed to have enjoyed almost all of Luxembourg’s finer dining experiences (of which there are many). armz’s internal lawyer, Elena Rukosueva, managed to get a car ride home to Moscow from a friend, a four-day journey by land.

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A third adventure had Markin and Linett flying to Dubai just prior to Christmas 2010 to negotiate the Mantra Resources transaction. The location was based on the perception that Dubai was equidistant from Toronto, Moscow, and Perth, where Mantra was based. Teams of lawyers from Fasken Martineau, as well as bankers from rbc Capital Markets and bmo Capital Markets in Toronto, enjoyed the desert warmth while successfully negotiating and announcing armz’s $1.2 billion acquisition. There was more to come. In March 2011, the Japanese earthquake and tsunami severely damaged the Fukushima nuclear reactor in Japan and the price of uranium equities dropped dramatically. Teams of Australian and Canadian lawyers parsed the language of the armz/Mantra agreements to see if a material change had occurred. armz claimed that it had and the re-negotiation was on … this time in Barbados, where the director general of armz happened to be vacationing with his family. It was Linett’s sad burden to be forced to endure the exquisite Sandy Lane resort in Barbados. Since this was an important matter, she was getting constant BlackBerry (what else?) messages from nervous partners in Toronto, to which she replied, each time, that progress was being made and that she was continuing to negotiate. That part was certainly true, so she did not feel compelled to disclose that the situs of the negotiations was the resort’s excellent golf course, during a series of golf games. The sale price was re-negotiated and armz saved about $150 million. The eventual closing took place in Perth, where Linett and the armz general counsel from Moscow attended the shareholder meeting and the final court hearing for the negotiated scheme of arrangement. The record shows that, the deal having been overwhelmingly approved by the shareholders, the court issued the final order approving the transaction in less than one minute. oil and gas Given the huge potential represented by oil and gas in Canada and the international, as well as domestic, thirst for such resources, it is not surprising that we have had a considerable focus on this sector. We had been lucky, during the 1980s, to have been involved in sorting out the financial aspects of Dome Petroleum activities on behalf of the major banks and, later, to have been actively engaged in the acquisition of Husky Oil on behalf of the Li Ka-shing interests, so the issues affecting the industry were not completely unknown to us as activity in the sector picked up. Our work internationally was also of considerable value in attracting clients. Not all foreign clients jumped in with both feet, since many countries are sensitive about exploitation of natural resources and their possible control by foreigners, so initial investments were often tactical in nature, testing the waters. Examples of activity in this area include the acquisition of

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Nexen Inc. by China National Offshore Oil Company for us$19.5 billion in cash, the acquisition of First Calgary Petroleums Ltd. by Eni S.p.A. for $923 million, the $10.3 billion acquisition of Addax Petroleum Corp. by Sinopec International Petroleum Exploration and Production Corporation, PrimeWest Energy Trust in its $5 billion sale to Abu Dhabi National Energy Company pjsc, and North American Oil Sands Corporation in a $2.2 billion cash takeover bid by Statoil asa. We also represented TransCanada Corporation in respect of the formation of the partnership to develop the $12.2 billion Keystone Oil Pipeline and its subsequent $750 million acquisition of ConocoPhillips’ remaining interest in the project in 2009. Oil and gas expertise, combined with our international reputation and country interest groups, led us into foreign transactions as well. We acted for China’s Sinopec International Petroleum Exploration and Production Corporation when it invested $2 billion to acquire Tanganyika Oil Company Limited. Africa is one of China’s many areas of interest and it has given assiduous attention over many years to building good relations across a broad range of countries. finance Access to capital remains one of the foremost concerns of all businesses. Unlike state-owned enterprises, which may benefit from the ability of its owners to print money, private enterprise, at least in the short term, depends on access to capital wherever it can be found, whether to expand a business or to realize the fruits of activities through the sale of all or part of the business. The firm has developed very sophisticated knowledge and experience in methods of financing, creditor protection, securitization of assets, creative share conditions, options, and structured finance generally. Almost no major transaction occurs without some form of leverage and the use of borrowed funds. banking The branch banking system in Canada has enjoyed considerable success and has benefitted from a somewhat more conservative style of operations than banks in other parts of the world. Nowhere was that more obvious than in the recent financial crisis, which saw the collapse of banks that were household names and massive bailouts by central bankers and governments. That is far from saying that the Canadian banks are immune from disasters and they could still be put into serious difficulties if the Europeans do not manage their own crisis more adeptly than they seem to

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have done to date. The firm has developed considerable expertise in banking matters and the many financial “products” that can be tailored to the needs of clients seeking capital for expansion or funds for reorganization or retrenchment. It was this expertise that accounted for our active role in the emergency measures to solve the 2008 crisis in asset backed commercial paper. real estate investment trusts (reits) reits have become well-known and popular vehicles for investing in and holding real estate investments, a real estate version of mutual funds. The firm was very active in this field, particularly in the transactional work involved in the creation and expansion of reits during the period from 2000 to 2005 and the later consolidation of reits in the period thereafter. One of the largest mandates was the merger of Resreit and Capreit in 2004 to form the largest residential landlord in the country. The period 2000– 08 was an era of huge real estate portfolio deals. In 2005, the firm acted for a consortium of Brookfield, cpp, and arca on the purchase of the assets of o&y reit, the largest Canadian real estate deal in Canadian history at the time – valued at over $2 billion – which included a large number of landmark properties across the country, such as First Canadian Place in Toronto. Most of the lawyers in our Toronto and Calgary real estate groups were commandeered to work on the file. Other transactions of note include representation of Hines reit in its acquisition of Atrium on Bay, the ipo of Scott’s reit, which involved the transfer of some two hundred quick service stores across the country, and Invest reit and Westmount Hospitality in the $240 million acquisition and financing of five hotels from Hilton Hotels. Most traditional hotel owner/operators have opted to sell the underlying real estate and simply operate the hotels. The Fairmont and Four Seasons transactions are typical examples of the new business models for hotel operations. Other major portfolios on which we were active were Morguard reit and El-Ad, an Israel-based fund that acquired, financed, and sold dozens of properties across Canada. Related to reits during the period from 2001 to mid-2008 was work done in commercial mortgaged-backed securities (cmbs). Doug Klaassen in Toronto acted for cibc, Merrill Lynch, and other clients, doing a great many mortgage loans as well as the securitization of mortgage portfolios. The work ended very suddenly in mid-2008, but is now showing cautious signs of recovery. Some collateral benefits have come from the widespread corporate realignments, since many of our contacts with existing clients have now landed in other finance and real estate positions.

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retail, infrastructure, and hotels Retail has also been a big story over the last several years. With the market downturn in 2008, several US and other offshore retailers showed a stronger interest in moving to Canada. Mario Paura and Rocky Delfino in Toronto led the push to identify and be retained by a number of them, including Lowes, Petsmart, Esprit, Winners, Marshalls, and Liz Claiborne. The firm is also acting for Lowes Companies Inc. in the yet unresolved unsolicited proposal to the board of rona for $1.8 billion. Ian Putnam brought in nrdc, the buyer of Hudson Bay Stores, and we acted for hbc in its sale of many of its Zellers stores to Target in 2010, for a sale price of approximately $2 billion, the largest retail transaction in Canada, with a significant impact on commercial real estate across the country. We have also been heavily involved in infrastructure – including acting for Women’s College Hospital on the redevelopment of their hospital site, acting for the Province of Ontario in the P3 contract to build the WindsorEssex Parkway (which links the 401 to the new Detroit River bridge), and for the City of Toronto in its purchase of the Green Lane Landfill site in southwestern Ontario Hotel work has also been a recurring theme. In addition to acting for for Kingdom Hotels International, we have acted on the sale of the King Edward Hotel in Toronto and Four Seasons Hotels on multiple occasions. A random list of just a few of the other significant real estate transactions from the last ten years that we were involved in include Canadian Imperial Bank of Commerce in its first publicly offered cmbs transaction, the City of Toronto in assisting it in drafting legislation under which it imposed a municipal land transfer tax, representing Entertainment Properties Trust on 10 Dundas Street project in Toronto on construction financing, development, borrower default, and, ultimately, its resale over a period of ten years, and Pyxis Real Estate on the sale of the prestigious Ogilvy Store in Montreal to Devimco in 2010. garbage In 2000, during the acquisition of bfi by Waste Management Inc., Cusinato served as the interim general counsel to Canadian Waste Services Inc., their Canadian operation, in addition to acting as transaction counsel. We are all well aware of The Sopranos and all the stories associated with the waste industry. One early morning, while acting as general counsel, Cusinato was in the office at 7:00 am and received a call from one of the transfer station operators, who said, “Curtis, I have a dead body in one of my dumpsters, what should I do?” (It is apparently not uncommon for homeless people looking for warmth and shelter to seek refuge in dumpsters.) Cusinato, ever sensitive, replied, “Did you kill him”? The operations per-

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son on the other end of the line said, “No,” to which Cusinato replied, “Then call the police, why are you calling me!” Curtis and the Stikeman team led over a dozen acquisitions, divestitures, and financings in the solid waste industry for Canadian Waste Inc., together with numerous other litigation and competition mandates in Canada over the next few years for Waste Management Inc. food Cusinato and the firm have acted for Sysco Corporation, the global leader in selling, marketing, and distributing food products, since 1996 with its initial acquisition in Ontario (in this first mandate with Jim Arnett, who left the firm to become the ceo of Molsons shortly after the transaction finished). They have completed more than thirty acquisitions, divestitures, and financing transactions in Canada in the foodservice industry for Sysco during this period and Cusinato has served as a member of the board of directors of Sysco Canada. steel (and the man of steel) About 2000 Cusinato began acting for his childhood best friend and best man, Barry Zekelman, who is originally from Windsor (where Barry and his family still reside). The Zekelman family is one of Canada’s billionaire families and Barry is perhaps one of the most well-known personalities in the North American steel industry. Barry quit business school at eighteen and in 1989, when his father died, started Atlas Tube. He took over an old warehouse with an ancient structural steel tubing mill worth a few hundred thousand dollars (essentially a tax shelter) in Harrow, Ontario, a small rural farming town in the middle of Essex County just outside Windsor. Barry turned this little business into the jmc Steel Group, Inc., the largest independent steel tubular manufacturer in North America, which produces more than two million tonnes of pipe and tubular products a year and employs more than 2,000 employees. Early in Barry’s career, while Atlas Tube was an emerging steel company, in response to a demand for payment for steel supplied by Dofasco, Barry went into Harrow and purchased a basketball at the local home hardware store. He taped a cheque to the ball and sent it by courier to the then-ceo of Dofasco, John Mayberry, with a note that read “Atlas cheques don’t bounce; to cash this cheque, simply remove the cheque from the ball and deposit the cheque!” The story became legendary in steel circles in North America. Cusinato has acted for the Zekelman family in connection with approximately $8 billion in transaction value over this period. He has served on the management committee for the Toronto office since 2008 and as

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one of the co-chairs of the Toronto m&a private equity group practice since approximately 2003. In 2005, after acquiring the structural steel tubing division of Maverick Tube, a New York Stock Exchange company, Atlas Tube acquired Copperweld (which had emerged from Chapter 11 bankruptcy protection in the United States) from ltv-Copperweld. During negotiations, Barry caused quite a stir when he nearly got into a fist fight in the board room with the bankers for the target. On the eve of the acquisition of Copperweld by Atlas Tube, with five closing rooms full of documents and a room full of lawyers and business people in the main boardroom in Toronto, Barry announced, after being asked to assume some additional liabilities, that he was no longer interested in purchasing the business (two of the four divisions being acquired were being divested to Dofasco), and took off his shoes and poured himself a glass of vodka. However, after a few late night sidebar discussions, the transaction was completed. In 2006, the Zekelman family sold a majority interest in Atlas Tube to The Carlyle Group for approximately us$1.25 billion and, together with The Carlyle Group, subsequently entered into a definitive agreement to sell the John Maneely Company (jmc), including Atlas Tube, for approximately $3.53 billion to ojsc Novolipetsk Steel, the steel empire of the Russian oligarch Vladimir Lisin, only to see the deal collapse in the midst of the global economic downturn in December 2008. Barry, a former body builder, flew to London with representatives of Carlyle, one of whom was a former Navy seal, and, in a scene that resembled a cold war suspense movie, met with Vladimir Lisin and his entourage in the basement of an famous old London hotel. The meeting resulted in a settlement for jmc with Novolipetsk for approximately $300 million. The Zekelman family, led by Barry, repurchased the business from The Carlyle Group in March 2011 and went on to yet another string of acquisitions in 2011 and 2012, resulting in one of the great steel success stories in North America post–World War II. Barry, who is notorious for his lifestyle and his toys, including a collection of exotic race cars (Ferraris, Lamborghinis, Bugattis, Porsches, and so on) and the fastest off-shore race boats on the planet, also once owned some of the most admired stateof-the-art yachts as well as several planes. He still owns a hanger at the Windsor airport! The boats were all customized, some painted with elaborate designs, and, complete with their customized trucks and trailers, were known throughout the boating and yachting world as belonging to the “Man of Steel.” In January 2011, on the eve of the meeting with jp Morgan to kick off the financing for the repurchase of jmc Steel from Carlyle (in which transaction jmc raised approximately $1.5 billion through a combination of covenant-lite high yield, term, and abl debt), Barry and Cusinato were in New York with representatives of Carlyle’s industrial fund finalizing the

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terms of the repurchase of the majority interest in jmc from Carlyle and celebrating over dinner and drinks (which, coincidentally, were also a great investment for Carlyle). When they returned to the Four Seasons Hotel in New York around 4 a.m. in the morning, the Man of Steel found that his room had been cleaned out – not even his shaving kit or toothbrush remained. Cusinato received a call, “Cusi, I’ve been robbed! ” He went up to Barry’s room and, after hotel staff, security, and the nypd got involved, it turned out (after calling the staff at home) that the hotel staff had confused the Man of Steel with the hotel guest who had been in the room the night before – and who typically has the hotel staff pack his belongings and ship them out to California. They managed to intercept Barry’s belongings in the storage area in the basement of the hotel around 7:00 a.m. before the courier arrived, get dressed, have breakfast, and, without any sleep, head straight to jp Morgan for the meeting. The road show turned out to be very successful and the offering was hugely over-subscribed (several jp Morgan representatives have communicated that it was one of the most successful road shows in recent times for jp Morgan). Imagine what the Man of Steel could do with a little sleep! (Needless to say, he did not have to pay for his room.) media There are occasional tectonic shifts (in Canadian terms) in the media sector. Some occur with new entrants who believe that a changed business model may improve the likelihood of financial success and others who have a vision of a continuum of production and distribution of traditional and new media. Others want to add to existing structures and still others to offload all or a portion of assets already owned. We acted for Reuters Founders Share Company Limited in connection with the $17.6 billion merger of Reuters Group plc and Thomson Corp., and, later, we acted as counsel for Apax Partners in a $7.75 billion acquisition with omers Capital Partners of Thomson Learning Higher Education Assets. This was an innovative transaction structured to comply with rules relating to the acquisition of Canadian cultural assets. We also acted for Astral Media Inc. when it acquired Standard Radio for $1.08 billion and, with the wheel turning a full circle, represented it when it was sold to bce Inc. in the spring of 2012. When Rogers Communications bought Atria Networks lp for $425 million, we represented the sellers, Birch Hill Equity Partners. kaleidoscope Looking back at the last ten years, the volume and range of transactions, the values of the deals they represented, the geographic base of clients and their transactions, the importance to the Canadian and world economies,

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and the range of talents brought to bear on the many issues are so great as to be almost impossible to grasp. Leaving them out entirely, however, would give a false impression of the level of involvement we have had in the Canadian business context during the last decade. Given this, aside from an occasional pause to look at some special circumstance, the only feasible manner to portray what happened during the period is to do something like riffling a deck of playing cards to produce a primitive motion picture impression of the activity. Presenting them in this way not only shows how dominant we have become but provides a snapshot of an important part of Canada’s economic history. Even though some of the transactions in this section may have been referred to on a stand-alone basis, they are also mentioned briefly here to show more clearly where they fit in the unfolding panorama of the Canadian business sector. In addition, mention of the occasional exceptional transaction does not adequately reflect the extent of our involvement with certain active clients. In 2003, we were counsel to a syndicate of Canadian banks that participated in the $3.7 billion refinancing of the Alliance Pipeline senior projects facilities and acted for the purchasers when a consortium of bc Gas Inc., Ontario Teachers’ Pension Plan Board, and Borealis Infrastructure Management Inc. completed the acquisition of the Express Pipeline System from EnCana Corporation and its affiliates for $1.75 billion. We were Canadian counsel to Bain Capital llc, a private equity fund, in the acquisition of Bombardier’s recreational products division and represented Blackfriars Corp. in its acquisition of Emco Limited for approximately $440 million. We later represented the Business Development Bank of Canada in its $300 million mezzanine financing alliance with Caisse de Dépôt et placement du Québec and represented Cara Holdings Ltd. in its $324 million bid to take Cara Operations Ltd. private. We acted as Canadian counsel to eFunds Corp. in its $30 million acquisition of Oasis Technology Ltd. We were selected by John Hancock Financial Services as Canadian counsel in its $14.8 billion acquisition by Manulife Financial, then the largest m&a transaction in Canadian history, acted for kpmg as monitor in the $5 billion at&t Canada restructuring, and were Canadian counsel to Koch Industries in its $4.4 billion acquisition of DuPont’s clothing and carpet fibre business. This was the year in which Air Canada began its efforts to restructure its business, in the context of the largest insolvency, business, and debt restructuring in Canadian history. We were requested to advise the Special Committee of the Board of Directors of Canada Life in the unsolicited bid by Manulife and the subsequent negotiated transaction with Great-West Life. We also represented Kingfisher plc, Europe’s leading home improvement retailer, in connection with the $360 million sale of its twenty Canadian

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big-box home improvement stores bearing the Réno-Dépôt and the Building Box banners to rona, acted for the bank subcommittee in the us$4 billion reorganization of Laidlaw Inc. and five of its subsidiary holding companies, and acted for Microcell Communications in its $2 billion recapitalization plan. The firm represented the Montreal Canadiens in the monetization of their $100 million sponsorship agreement with Bell Canada, assisted PrimeWest Energy Trust in its $206 million acquisition of two subsidiaries of a US-based oil and gas company, and acted as Canadian counsel to rr Donnelley in its announced us$6 billion merger with Moore Wallace. Rounding out the year, we represented Slocan Forest Products Ltd. in its sale to Canada’s Canfor Corporation for $464 million in stock, leading to the creation of the world’s largest manufacturer of spruce, pine, and fir products and represented Yellow Pages Income Fund in its $1 billion initial public offering and $750 million secondary offering, the largest income trust ipo in Canada and the largest follow-on offering. The firm acted for 20-20 Technologies Inc. in its initial public offering in 2004 and for Aber Diamond Corp. in the sale of its shares by Tiffany & Co. for $336 million. We continued our many representations within the Abitibi group as counsel for Abitibi Consolidated Company of Canada, a wholly owned subsidiary of Abitibi-Consolidated Inc. in its exchange of us$200 million notes. We represented the syndicate of agents in relation to AirSource Power Fund i lp financing of wind turbines in Manitoba. We acted for Allianz ag and Allianz of America Inc. in the sale of Allianz of Canada, Inc. to ing Canada Inc. and for AltaGas in the sale of trust units of AltaGas Income Trusts by Enbridge Inc. for $218 million. We were special Canadian counsel for Atix Laboratories, Inc. in the sale of all its outstanding securities to qlt Inc. for us$855 million. We acted for Microcell Telecommunications Inc., the “Fido” brand wireless telephone service, in its defence against the hostile bid made by Telus and its subsequent $1.4 billion acquisition by Rogers Wireless. We were Canadian counsel for Bain Capital in the acquisition by Dollarama L.P. of a majority position of the Dollarama business of S. Rossy Inc. and Dollar A.M.A. We acted for Bertelsmann ag in Canada in its joint venture with Sony Corp. to create Sony bmg Music Entertainment, the world’s second largest recorded music company. We represented the managers in an issue of senior notes by Vidéotron Ltée for us$315 million and Brompton Equal Weight Oil and Gas Income Fund in its $400 million initial public offering of investment trust units. We represented cae Inc. in the acquisition by L3 Communications Corporation of cae’s Marine Controls Division for $345 million and for cn in its issue of us$500 million of notes for purposes of partial payments in respect of a series of acquisitions, including some in British Columbia. The firm was also Canadian counsel for the Carlyle Group in its acquisition of

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Standard Aero Engine Maintenance, Repair, and Overhaul Division of Dunlop Standard Aerospace Group for us$675 million. We acted for Charles River Laboratories International, Inc. in its merger with Inveresk Research Corp., Inc., a deal valued at $1.5 billion. The Government of Canada retained us to advise regarding the $3 billion sale of its remaining holdings of Petro-Canada, the largest sale of shares to that time in Canadian history. The second largest secondary offering was Verizon’s sale of its 21 per cent stake in Telus Inc. for gross proceeds in excess of $2.2 billion. We acted for Canadian Apartment Properties reit in its merger with Residential Equities reit, creating one of Canada’s largest reits. In Vancouver, we represented Slocan Forest Products in its billiondollar merger with Canfor Corporation, as well as the underwriters in connection with bc Gas’s establishment of a $1 billion debt securities and unsecured debentures program. It was the year in which ace Aviation Holdings Inc. converted the Aeroplan program into an income trust and proceeded with an ipo. Outside Canada, we acted for Bema Gold with respect to multi-tiered debt facilities of approximately us$500 million from commercial lenders and hedge providers, multilateral agencies and others for its Kupol gold mine in Russia. In 2005, as business activity picked up, we acted for Terasen Inc. in connection with the us$3.1 billion acquisition by Kinder Morgan Inc., one of the largest US acquisitions ever in Canada, cvrd (Companhia Vale do Rio Doce) in its $940 million take-over bid for Canico Resources Corp., Silver Lake Partners in connection with all Canadian aspects of the us$11.3 billion acquisition of SunGuard, and Unocal Corp. in the us$1.8 billion sale of Northrock Resources, its Canadian subsidiary, to Pogo Producing Company. We were also Canadian counsel for Lenovo Group Ltd. in connection with its us$1.75 billion acquisition of ibm’s personal computer business, Pernod-Ricard in its us$14.2 billion acquisition of Allied Domecq plc, Ameritrade in connection with its us$2.9 billion purchase of td Waterhouse usa, and Atlas Tube Inc. in its us$350 million acquisition of Copperweld Holding Co. We acted for Silver Lake Partners in connection with the Canadian aspects of the us$11.3 billion acquisition of SunGard, the Special Committee of the Board of Directors of Royster-Clark Ltd. in connection with the first ids hostile take-over bid in Canada made by Agrium Inc. and for a consortium led by bpo Properties (Brookfield Properties Corp.) in the $2.1 billion combined o&y Properties Corp. and o&y Real Estate Investment Trust, a result of the largest real estate auction in Canadian history. And we were Canadian counsel for kkr, Bain Capital, and Vornado in their winning bid to purchase Toys-R-Us, valued at $6.6 billion. We represented Livingston International Income Fund in its $240 million bid for pbb Global Logistics Income Fund – the first unsolicited income

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fund take-over bid of its kind in Canada – ineos Group Limited as Canadian counsel in its us$9 billion acquisition of the Innovene Group of Companies, and Lukoil Overseas Holding Ltd. as Canadian counsel in its us$2 billion acquisition of Nelson Resources Ltd., Duke Energy Corp. as Canadian counsel in its us$1.1 billion restructuring of its stake in Duke Energy Field Services llc with partner ConocoPhillips Co. Our Vancouver office assisted Creo Inc. in connection with its $980 million acquisition by Eastman Kodak Company. We represented Waterous & Co., the leading oil and gas asset m&a advisor in Calgary, in its acquisition by Scotiabank, the Winterthur Group in its sale of the Citadel Assurance Company to axa Canada Inc., and Goldman Sachs and Cerberus Capital Management as Canadian counsel in a purchase of approximately us$295 million in equipment leases and related infrastructure from cit Group, Inc. We acted for an increasingly active Ontario Teachers’ Pension Plan in its purchase of 20 per cent of bce’s stake in Bell Globemedia, the Yellow Pages Group in its $436 million acquisition of Trader Media Corporation, Alstom Canada Inc. in connection with the sale of its power conversion activities in Canada to Barclays Private Equity, and Silver Lake Partners as Canadian counsel in its us$1.88 billion acquisition of Instinet Group Incorporated, as well as Gold Fields Limited in its $400 million bid to acquire Bolivar Gold Corp. We were Canadian counsel to Goldman Sachs Capital Partners in connection with the 1.3 billion euro acquisition of the Pirelli cable and wire business, Borealis in the acquisition of the Holiday Group Inc. and Travelpro International Inc. from Wafa Partners llc and management shareholders and in connection with the acquisition of minority interest in Holiday Group Inc. by the Caisse de dépôt et placement du Québec, Yellow Pages Income Fund on tax and certain corporate matters related to the $2.55 billion acquisition of the Superpages directory business in Alberta and British Columbia, Airborne Entertainment Inc. in the sale of 85 per cent of its issued and outstanding shares, valued at us$90 million, to cyb Investment Inc., and sap in Canada in its acquisition of Triversity Inc., a leading North American provider of point-of-sale software solutions. The pace of transactional work continued to accelerate in 2006. One of the highest profile transactions, already mentioned, was as Canadian counsel to Kingdom Hotels International in connection with its successful $5.5 billion bid and acquisition of Fairmont Hotels from Colony Capital. We were Canadian counsel to Mittal Steel N.V. in its us$33 billion acquisition of Arcelor, acted for Royal Dutch plc in its $8.7 billion buyout of the minority shareholders of its Shell Canada subsidiary, and represented Anadarko Petroleum Corporation in the us$4.24 billion sale of Anadarko Canada Corporation to Canadian Natural Resources Limited. We were Canadian counsel for iamgold Corporation in its us$3 billion transac-

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tion with Cambior Inc., acted for Aviva plc on the Canadian aspects of its us$2.9 billion acquisition of AmerUs Group Co., and represented Fortis bank S.A./N.V. in its us$415 million acquisition of Cinergy Canada, Duke Energy’s energy trading operation. The firm acted as Canadian counsel for Smurfit-Stone Container Corporation in the us$1.04 billion acquisition of its consumer packaging division by Texas Pacific Group and as financial advisor to Vincor International Inc. in its $1.5 billion acquisition by Constellation Brands. We represented Adastra Minerals Ltd. in its $275 million acquisition by First Quantum Minerals, Apax Partners & Co. as Canadian counsel in its us$1.6 billion acquisition of Tommy Hilfiger Corporation, and a consortium led by Brookfield Asset Management Inc. in its purchase of a 92 per cent stake in Chilean transmission provider hqi Transelec sa for $1.55 billion from Hydro-Québec. We were engaged by Companhia Vale do Rio Doce (cvrd), the largest metals and mining company in the Americas, in connection with its $19.9 billion acquisition of Inco Limited. ing Real Estate used us as counsel in its $3.3 billion acquisition of Summit reit and Lowe’s Companies, Inc. as Canadian counsel on its entry into Canada. We acted for Yellow Pages Group in connection with its $760 million acquisition of Classified Media (Canada) Holdings Inc., also known as Trader Canada, Bregal-Burchill in the sale of Birchill Energy to Harvest Oil Corp. for $400 million, Ameritrade as Canadian counsel in connection with its us$2.9 billion purchase of td Waterhouse usa, and North American Oil Sands Corporation in the acquisition of $216 million of joint venture and partnership interests in certain oil sands leases from paramount Resources in exchange for shares of North American PrimeWest Energy Trust in a us$300 million acquisition of oil and gas assets in Montana, North Dakota, and Wyoming, and related financing transactions. We advised Atlas Tube Inc. in its us$350 million acquisition of Copperweld Holding Co., Kruger Inc. in its $68 million acquisition of Maison des Futailles and lp, from Société des alcools du Québec and Fonds de solidarité des travailleurs du Québec (ftq). We represented Canada’s Sico Inc. in connection with its $295 million acquisition by Akzo Nobel nv, Livingston International Income Fund in its $240 million acquisition of pbb Global Logistics Income Fund, the first unsolicited income fund take-over bid of its kind in Canada, and Harbinger Capital partners in its $882 million unsolicited bid for Calpine Power Income Fund, as well as Bain Capital and the Blackstone Group in connection with their us$6 billion acquisition of Michaels Crafts Stores. We represented Savanna Energy Services Corp. in its merger with Western Lakota Energy Services Inc. for a combined enterprise value reaching $1.5 billion, Morpheus Energy Corporation in its $89 million sale to Orleans Energy Ltd., and provided competition advice for Alcatel in its

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us$15 billion merger with Lucent Technologies. We were counsel for Air Canada and ace Aviation Holdings Inc. in connection with Air Canada`s initial public offering for total gross proceeds of $525 million, the largest Canadian ipo of 2006, ypg Holdings Inc. in an offering of $1 billion medium term notes – one of the first mtn financings in connection with an income fund structure in Canada – and Canadian National Railways in a us$800 million note offering pursuant to a shelf prospectus. We also acted for the dealers in an offering of $750 million 4.25 per cent debentures by Canadian Imperial Bank of Commerce– the largest offering of subordinated indebtedness completed by the cibc – and the underwriters, led by rbc Capital Markets and Scotia Capital, of a $250 million maple bond offering by Bear Stearns. The firm has acted for Lafarge in tax and other matters for many years. In 1983 we had planned and executed its reorganization in North America, which put in place one of the first exchangeable preferred share structures. In 2006 we acted for Lafarge sa in a going-private transaction, which resulted in the acquisition of all the publicly held exchangeable preference shares of Lafarge Canada and common shares of Lafarge North America. This concluded the exchangeable share period for Lafarge in North America. 2007 was the year before the financial firestorm. The firm acted for Cheung Kong Infrastructure Holdings Ltd. in its $629 million bid for TransAlta Power lp, for rbtt Financial Group in its $2.2 billion acquisition by Royal Bank of Canada, for PrimeWest Energy Trust in its $5 billion sale to Abu Dhabi National Energy Company pjsc, and for Merck KGaA as Canadian counsel in connection with the us$6.7 billion sale of its generic pharmaceutical business to Mylan Laboratories Inc. We represented Movie Distribution Income Fund in the $500 million sale of Motion Picture Distribution lp to EdgeStone Capital Partners and Goldman Sachs, the buying consortium of cai Capital Partners, Goldman Sachs Capital Partners, Kelso & Company, and Vestar Capital Partners in their $3.5 billion purchase of ccs Income Trust, one of Canada’s largest management buyout deals to date. We represented Essar Global Ltd. in its $1.85 billion acquisition of Algoma Steel Inc. and UrAsia Energy Ltd. in connection with the $3.1 billion acquisition by sxr Uranium One Inc. We were Canadian counsel to Laidlaw International in its us$3.6 billion sale to FirstGroup plc. We represented Cascade Investment, llc, and Triples Holdings Ltd., as well as North American Oil Sands corporation in connection with the $2.2 billion cash takeover bid by Statoil asa We acted for Alcoa Inc. in its us$33 billion bid for Alcan Inc., Nucor Corp. in its $1.25 billion acquisition of Harris Steel Corp., and TransCanada Corporation in connection with its offering of subscription receipts and common shares with gross proceeds of $1.75 billion, the largest equity

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bought deal offering in Canadian history. During the same year we began assisting TransCanada in respect of the formation of the partnership to develop the Keystone Oil Pipeline and its subsequent us$750 million acquisition of ConocoPhillips’ remaining interest in the project in 2009. We acted for the underwriters in connection with Franco-Nevada’s $1 billion ipo, the largest in Canada in 2007 and in another “largest,” for the underwriters in connection with a $2.5 billion Maple Bond offering by Morgan Stanley & Co. We were counsel to the underwriters in connection with Fortis Inc.’s $1 billion bought deal to fund the cash portion of Fortis’ acquisition of Terasen Inc., to the underwriters in connection with the $518 million bond offering by Harrison Hydro Finance Inc. to finance six hydroelectric generating facilities in British Columbia, and to Nikanor plc in connection with its us$3.3 billion merger with Katanga Mining Ltd. We represented Club Penguin in its us$700 million sale to Walt Disney Company, Astral Media Inc. in its $1.08 billion purchase of Standard Radio, Cerberus Capital Management lp as Canadian counsel in its successful us$4 billion acquisition bid for United Rentals Inc., and The Carlyle Group as Canadian counsel in its us$1.5 billion acquisition of pq Corporation. Kingdom Hotels International made its second acquisition, with Cascade Investment llc and Triples Holdings Ltd., this time of Four Seasons Hotels. We were counsel to a syndicate of lenders led by Toronto-Dominion Bank providing financing of some $2 billion to Inter Pipeline (Corridor) Inc. for the expansion of the Corridor pipeline in Alberta and were counsel to the winning consortium led by Macquarie Bank and Kiewit Development Company for the Autoroute-25 ppp project, Quebec’s first. We represented Bema Gold in its $8 billion merger with Kinross Gold Corporation and North American Oil Sands Corporation in connection with the $2.2 billion cash take-over bid by Statoil asa. 2007 was also the beginning of the activity regarding the buy-out of bce Inc., at $51.7 billion, the largest in Canadian history. We were counsel for Dundee Corporation in the $348 million sale of an 18 per cent interest in DundeeWealth and the $260 million sale of Dundee Bank to Bank of Nova Scotia, phh Corporation in its $1.8 billion sale to ge Capital, and were Canadian counsel for Francisco Partners, controlling shareholder of Mitel Networks Corp., in Mitel’s us$723 million acquisition of Inter-Tel Inc. We represented Ontario Teachers’ Pension Plan in its $1 billion purchase of Chilean utility companies Empresa de Servicios Sanitarios del Bio-Bio sa (essbio) and Aguas Sur Maule sa. We acted for Credit Union Central of British Columbia in its acquisition of the assets of Credit Union Central of Ontario and Alcoa Inc. in the us$2.7 billion sale of its packaging and consumer business to Rank Group Limited. We were Canadian counsel to Grupo Bimbo, S.A.B. de C.V. in its us$2.5 billion acquisition of the US baking interests of George Weston

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Limited, Metallica Resources Inc. in its us$1.6 billion merger with Peak Gold Ltd. and New Gold Inc., as well as Eni S.p.A. in its $923 million acquisition of First Calgary Petroleums Ltd. We represented Yara International asa in its $1.6 billion acquisition of Canadian nitrogen producer Saskferco, Axcan Pharma in its $1.3 billion sale to tpg Capital, and Panasonic Corporation as Canadian counsel in its us$9 billion acquisition of Sanyo Electric Co., Ltd. Continuing our association with AbitibiBowater, we were Canadian counsel in its us$1.4 billion refinancing, represented Alcoa Inc. in its agreement with the Government of Quebec relating to Alcoa’s development, including a $1.2 billion investment and e*trade Canada in its us$442 million acquisition by the Bank of Nova Scotia. We were Canadian counsel for Electronic Data Systems Corporation in its us$13.9 billion acquisition by Hewlett Packard, Birch Hill Equity Partners Management Inc. and Westerkirk Capital Inc. in their $356 million acquisition of Sleep Country Canada Income Fund. We represented nrdc Equity Partners in connection with its acquisition of the iconic Hudson’s Bay Company, since which time we have become the company’s primary corporate counsel, advising the company and the ownership on its turnaround. David Pickwoad, formerly in the Toronto office, is now the head of the hbc legal group. We also represented Zeller’s in connection with the sale of leases to Target, a transaction that will transform the retail landscape in Canada. In 2008, we also acted for Aurelian Resources Inc. in connection with the $1.2 billion acquisition offer from Kinross Gold Corporation, Triarc Companies, Inc. as Canadian counsel in its merger agreement with Wendy’s International, Inc., Aviva Canada Inc. in its acquisition of National Home Warranty Group of Companies, and Xantrex Technology Inc. in its $500 million acquisition by Schneider Electric. We represented the underwriters in the $226 million offering of amortizing bonds, the first bank/bond deal of its type in Canada, by the Northwestconnect consortium developing the Anthony Henday Drive Northwest project in Edmonton, Cymbria Corporation in its $221.8 million ipo and private placement, and TransCanada Corporation in the multi-jurisdictional disclosure system (mjds) offerings of common shares and debt totalling over $3.9 billion, as well as ypg Holdings Inc. in its offering of $1 billion in debt securities. We were engaged by Teck Cominco Ltd. in its $14.1 billion acquisition of Fording Canadian Coal Trust and by Sinopec International Petroleum Exploration and Production Corporation in the $2 billion acquisition of Tanganyika Oil Company Ltd. We were Barclays plc’s Canadian counsel in the $1.6 billion acquisition of Lehman Brothers’ North American operations and represented underwriters of share issues by Canadian Imperial Bank of Commerce, Royal Bank of Canada and Visa, Inc., the latter as

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Canadian counsel in a us$19.1 billion ipo. The cities of Vancouver and Richmond engaged us in the development of the Sea-to-Sky highway project, which formed a significant portion of the successful 2010 Olympic Winter Games. In 2008 as well, Dubai-based Istithmar World capital and Nakheel made their acquisition of a 20 per cent interest in Cirque du Soleil. In the course of 2009, we acted for George N. Gillett in connection with the sale of the Montreal Canadiens and the Bell Centre to the Molson family and its associates, completing a triptych on his behalf, having acted on his acquisition, monetization, and eventual disposition of the club and its impedimenta. We represented Bell Canada in its acquisition of substantially all the assets of the Canadian electronics retailer the Source, Solvay sa as Canadian counsel in the 4.5 billion Euro sale of its entire pharmaceutical business to Abbott Laboratories, and Livingston International Income Fund in the $315 million sale of all its assets to cpp Investment Board and Sterling Partners. We were counsel to Sithe Global Power, llc in the sale of a 25 per cent ownership interest in the 875-mw Goreway Station, to Chubu Electric Power Company, Inc. and Toyota Tsusho Corporation, to Golden Gate Private Equity, Inc. in its us$286 million acquisition of Eddie Bauer Holdings Inc., and to Pluspetrol Resources corporation in its $400 million offer to acquire Petro Andina Resources Inc. We represented Wyeth as Canadian counsel in its us$68 billion acquisition by Pfizer Inc. and SinoCanada Petroleum Corporation, a subsidiary of China Petroleum & Chemical Corporation (Sinopec) in its acquisition of an additional 10 per cent interest in the Northern Lights Partnership from Total Canada e&p Ltd., giving it a 50 per cent interest in the partnership. It was an active year for Chinese interests in the resource sector. Sinopec International Petroleum Exploration and Production Corporation acquired Addax Petroleum Corp. for $10.3 billion and PetroChina International Investment Company Limited made a $1.9 billion acquisition of a 60 per cent working interest in Athabasca Oil Sands Corp.’s MacKay River and Dover oil sands projects. China Investment Corporation acquired class B subordinate shares for cash of $1.74 billion from our client, Teck Resources Limited. Also in the energy sector, the firm was financial advisor to Suncor Energy Inc. in its $22.2 billion acquisition of Petro-Canada. We acted for k&s ag as Canadian counsel in the us$1.675 billion acquisition of Morton International, Inc. and for rga Canada in its acquisition of ReliaStar Life Insurance Company’s US and Canadian group life, accident, and health reinsurance businesses. We represented Foamex International, Inc. in its $155 million sale to MatlinPatterson Global Opportunities Partners iii lp and Black Diamond Capital Management llc, Tyco Electronics Ltd. as Canadian counsel in the us$675 million sale of its Wireless Systems business to Harris Corporation, and cnpc International Ltd., a wholly owned subsidiary of China National Petroleum Corporation,

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in its $499 million offer to acquire Verenex Energy Inc. We were co-counsel for aig, Inc. in the sale of its Canadian life insurance business to the Bank of Montreal for $375 million, Canadian counsel for Ticketmaster Entertainment, Inc. in its us$2.5 billion merger with Live Nation, Inc., and acted for td Ameritrade Holding Corp. in its us$606 million acquisition of thinkorswim Group Inc. and thinkorswim Canada, Inc. We also acted for Saugatuck Capital Company as Canadian counsel in its acquisition of the business of Exocor Inc., for TransCanada Corporation in connection with offerings of $1.62 billion in common shares, $550 million in preferred shares, and us$2 billion in debt securities, for Dollarama Inc. in its $300 million initial public offering of common shares, for the underwriters in multiple offerings of preferred shares by the Royal Bank of Canada for proceeds of more than $1 billion, and for Bell Canada in its $1 billion offering of debentures. In restructuring transactions, we acted for Smurfit-Stone Container Corporation as Canadian counsel in its restructuring and as court appointed monitor in the Canwest Global Communications ccaa restructuring, which led to the sale of the publishing assets to Postmedia Network Inc. and the sale of the broadcasting assets to Shaw Communications Inc. We were active in the growing field of infrastructure and development, representing lenders on the Surrey Outpatient Facility project, a $239 million, 17,500 square metre healthcare facility project in British Columbia, lenders on the Toronto South Detention Centre project, a 67,000 square metre, 1,650 bed maximum security facility development in Toronto, the City of Vancouver in connection with its assumption of the $750 million construction loan for the development of the Olympic Village, SunPower Corporation in connection with its entry into Canada and development of solar farms, the Ontario Power Authority in connection with its procurement of 500 megawatts of renewable energy (res iii), and Infrastructure Ontario and the Ministry of Transportation in the development of the $1.6 billion Windsor-Essex Parkway project. The world’s economies and financial structures remained unsettled through 2010, although there was a good deal of available work. We represented Dundee Corporation, the controlling shareholder of DundeeWealth Inc., in connection with the $2.3 billion offer by the Bank of Nova Scotia to acquire the remaining 82 per cent interest in DundeeWealth that the bank did not own. We acted for the Canada Pension Plan Investment Board in its $894 million acquisition of a 10 per cent stake in the 407 Express Toll Route from Cintra Infraestructuras S.A.U., and as Canadian counsel in its $3.6 billion acquisition of Intoll Group. We were counsel to Van Houtte in its $915 million sale to Green Mountain Coffee Roasters by an affiliate of Littlejohn & Co., llc, to Anatolia Minerals Development Limited in a $2 billion merger of equals with Avoca Resources Limited

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and to ing Summit Industrial Fund lp in the $2 billion sale by its limited partners to a joint venture company formed by Kingsett Capital Inc. and Alberta Investment Management Corp. We acted for jsw Energy Limited in its $422 million bid to acquire all the shares of cic Energy Corp. and for xm Canada in its $520 million merger with Sirius Canada Inc. We represented Birch Hill Equity Partners in its $425 million sale of Atria Networks lp to Rogers Communications Inc., Baffinland Iron Mines Corporation in connection with the competing bids for the company by ArcelorMittal sa and Nunavut Iron Ore, and Tata Steel Global Holding Pte. in its $300 million acquisition of an 80 per cent stake in a direct-shipping ore project located in Canada owned by New Millennium Capital Corp. We were Canadian counsel to tpg Capital in its $850 million acquisition of the property information business of MacDonald Dettwiler and Associates Ltd. (after an earlier transaction had been rejected under foreign investment regulation), and to Alstom S.A. in the $2.29 billion joint acquisition with Schneider Electric of the transmission and distribution businesses of Areva t&d and the $217.5 million indirect acquisition of Alstom Hydro Canada Inc. We represented Simmons Pet Food, Inc. in its $239 million acquisition of Menu Foods Limited and Lihir Gold Limited as Canadian counsel in its $9.5 billion sale to Newcrest Mining Ltd. We were Canadian competition and regulatory counsel in the PanasonicSanyo, Ticketmaster-Live Nation, and Continental-United Airlines mergers. We acted for L.F. Investments (Barbados) Limited and Hutchison Whampoa Luxembourg Holdings S.à.r.l., the two principal shareholders of Husky Energy Inc., in their $707 million private placement purchase of additional shares of Husky, for Intel Corporation as selling shareholder in the $690 million initial public offering and secondary offering of smart Technologies Inc., and for Hochschild Mining plc as selling shareholder in the $392 million offering of common shares by Lake Shore Gold Inc. We represented El-Ad Group (Canada) Inc. in a $992 million reorganization and Elad Canada Inc. in the first Canadian ipo on the Tel Aviv Stock Exchange, the underwriters in connection with the us$1.5 billion offering of senior notes by Bombardier Inc., and Dollarama Inc. in its $282.7 million secondary offering of common shares. We acted for the underwriters in the $348 million ipo of Tahoe Resources Inc. and for AltaGas Ltd. in its combined $1 billion offering of common shares, preferred shares, and debt. We represented the AbitibiBowater Group in its successful global restructuring, including sale of the McCormick hydroelectric facility to HydroQuébec. We acted as monitor in the Grant Forest Products restructuring and sale of certain processing facilities to Georgia-Pacific llc. With our recognized and growing experience in ppp work, we were counsel to the sponsors, Infrastructure Ontario and the Ministry of Transportation, in the

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development of the $2.8 billion Windsor-Essex parkway project, Ontario’s first civil infrastructure ppp. We were designated lenders’ counsel for the successful consortium in the development of the rcmp’s E-Division headquarters project in British Columbia, the first ppp undertaken by the Government of Canada. We acted for SunPower Corporation in its entry into Canada and development of solar farms and in its agreement to design, build, and operate a 20 megawatt $130 solar power project on behalf of Macquarie Power & Infrastructure Income Fund. In the same field, we represented edf en Canada Inc., an edf Energies Nouvelles Company, in the financing of a 23.4 megawatt solar energy generating facility. We were lenders’ counsel in the Glen Dhu Wind Power project in connection with the $115 million credit facility provided to develop the 62.1 megawatt wind project, the largest wind farm in Nova Scotia. We acted for Pyxis Real Estate Equities in its sale of the Ogilvy department store in Montreal and for capreit in connection with more than $750 million of transactions, including the acquisition of multi-unit residential properties, financings and refinancings, and the public offering of units. We were counsel to Trafigura Beheer bv, the largest shareholder of Anvil Mining Limited, in the $1.3 billion friendly take-over offer for Anvil by Minmetals Resources Limited, acted for Korea Resources Corporation in its participation in Capstone Mining’s $700 million acquisition of Far West Mining, and were counsel to Vector Aerospace Corp. in its $625 million sale to Eurocopter Holding, a subsidiary of eads. We represented tpg Capital in its us$979 million acquisition of the distribution business of Ashland Inc. and in its us$955 million acquisition of the North American business of Taylor Wimpey. We acted for Yellow Media Inc. in the $745 million sale of Trader Corporation to funds advised by Apax Partners, for Canadian Tire Corporation Limited as regulatory counsel in its $177 million acquisition of Forzani Group Ltd., and for Endeavour Mining Corporation in its $310 million merger with Adamus Resources Limited. We were counsel for Orion Oil & Gas Corporation in its $300 million sale to Westfire Energy Ltd., for Prime Restaurants Inc. in its acquisition by Cara Operations Limited, and were Canadian counsel to Alberta Investment Management Corp. in its us$987 million acquisition of 90 per cent of Autopista Central. We represented Bain Capital in the $297.6 million sale of its interest in Dollarama Inc. to a financial institution, Ontario Teachers’ Pension plan as Canadian counsel in its $541 million acquisition of additional shares of Essbio sa and Esval sa, and Marsulex Inc. in the $419.5 sale of most of its business to Chemtrade Logistics Income Fund. We acted for Volkswagen ag as Canadian regulatory counsel in its $208 million bid for German trade manufacturer man se, for hsbc Canada Bank in its $206 million

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sale of its investment advisory business to National Bank of Canada, and for Sysco Canada Inc. in its acquisition of Bedell’s Food Services Distributors. We represented omers Private Equity in its acquisition of cbi Health Group and Zynga Inc. in its acquisition of certain of the assets and intellectual property owned by Five Mobile Inc. and Bauer Sports Performance Inc. in its $75 million ipo, one of the only domestic ipos outside of the mining, technology, and investment fund sectors since the beginning of the financial crisis. The firm acted for Bell Canada in its $3 billion offering of debt securities and AltaGas Ltd. in its $2 billion offering of similar debt securities. Representing underwriters, we acted in the $301 million of equity and debt by Primaris reit and in the high-yield debt offerings of Cara Operations, Vermillion Energy, Kruger Products, Trident Exploration, and Perpetual Energy, as well as in the $625 million offering of debt by Daimler Canada Finance. Regarding infrastructure projects, we were counsel to Dalkia, a member of the winning consortium in connection with the development of the chum Montréal Hospital Research Centre, the world’s largest hospital ppp, and counsel to the bidding consortium on Maritime Radio Communications System, one of the first ppps in the Maritimes. We were designated lenders’ counsel for the successful bidders to redevelop the Women’s College Hospital, an academic ambulatory care hospital in Toronto. In the field of energy, we acted for the Ontario Power Authority in its negotiation of the Green Energy Investment Agreement involving Samsung c&t Corporation and the Korea Electric Power Corporation, SunPower Corporation in its entry into Canada and development of solar farms, and Macquarie Power and Infrastructure Corporation and Cardinal Power of Canada, L.P. in their negotiations with the Ontario Power Authority and Casco Inc. related to the Cardinal Regeneration Plant. We represented edf en Canada Inc. in connection with the development, financing, and sale of various solar and wind generation facilities, Morgan Stanley in its entrance into the rooftop solar power field in Ontario, and Silicen sa and Silicen Canada in their establishment of the Canadian business and the development of a pv module manufacturing facility. Also in 2010, the defence of PotashCorp against the unsolicited bid by bhp Billiton occurred and the bid was eventually withdrawn following rejection of the proposal by Industry Canada. As bce continued its plan of acquiring media assets, we represented Ontario Teachers’ Pension Plan in connection with bce’s acquisition (from Teachers, The Woodbridge Company Limited and Torstar Corporation) of ctvglobemedia for $3.2 billion and the related $200 million acquisition by Woodbridge of the Globe and Mail assets, also from ctvglobemedia. We were Canadian counsel to the underwriters in the us$23.1 billion nyse and tsx initial public offering of

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General Motors, the largest ipo in history, and the concurrent offering of preferred shares. The following year, the Ontario Teachers’ Pension Plan sold Maple Leaf Sports and Entertainment to Rogers Communications and Bell Canada for $1.32 billion. We were designated lenders’ counsel for the successful bidders for the $2 billion Halton Healthcare Services/Oakville Hospital development, one of Canada’s largest ppp financings to date, and continued our representation in the Montreal chum, the world’s largest hospital to date. In Vancouver, the Concord Pacific Group was active in a $3 billion waterfront development. In the resource sector, we acted for Baffinland Iron Mines Corporation in a $590 million acquisition by ArcelorMittal sa and Nunavit Iron Ore Acquisition Inc., a transaction that began as two hostile take-overs by both companies and morphed into a combined friendly takeover. The Nortel Networks Inc. patents were purchased in part by our client, Apple Inc., as part of a us$4.5 billion transaction, the largest patent sale in history. This was in addition to Nortel-related transactions in which we acted for Ciena Corporation and Genband. Our client Zellers sold approximately 220 leasehold interests to Target Corporation for $1.825 billion. These have been part of a veritable tsunami of business transactions, which chronicles a unique period in Canadian business history, as Canadians made domestic and foreign investments but, more notably, as foreign investors took increasing note of Canada’s resources and made their strategic decisions. As a firm with broad expertise and a disciplined approach to attracting and executing mandates, the period has proven to be unique in the firm’s history as well.

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chapter 6

Dressed in Our Bibs and Gowns I went to bat for the Lady Chat Dressed in my bib and gown The judges three glared down at me And priests patrolled the town.1

When Fraser Elliott was in Montreal, he had limited enthusiasm for litigation lawyers, whom he basically regarded as a commodity, and one of considerably less value than tax, commercial, or business lawyers. When he and Heward Stikeman decided to expand from a tax and corporate boutique into a full service firm, they recognized, not without some misgivings, that they would need to have a litigation capacity, so they recruited François Mercier, an acknowledged leader among Quebec litigators, and André Brossard to head up that section of the firm. With very few exceptions, however, principally Mortimer Freiheit, the level of the Montreal business litigation files was not impressive and the volume of businessrelated litigation in the Quebec courts was much lower than that in Ontario. Once Elliott arrived in Toronto, however, he understood very quickly that it was important to have commercial litigation capacity and that, in the field of commercial litigation, “names” mattered. He also learned that commercial litigation was considerably more profitable than it appeared to be in Quebec. This led him to recruit John Sopinka and, through Sopinka, to the luring away from academe of Sid Lederman, who built a formidable litigation section in Toronto that, despite the later departures of both Sopinka and Lederman to different Benches, has continued to in1 F.R. Scott, “A Lass in Wonderland,” a poem he wrote describing his defence of D.H. Lawrence’s Lady Chatterley’s Lover, a case he eventually won in the Supreme Court of Canada. (Collected Poems of F.R. Scott [Toronto: McClelland & Steward, 1981], 264)

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crease in stature and in its capacity to handle all aspects of modern business litigation. The tendencies of US types of litigation have, for better or for worse, expanded to Canada. We now have class action remedies, increased litigation regarding competition, oppression remedies, actions against directors and officers, insurance claims, and many others. Stikeman Elliott is now within the small group of firms capable of handling the largest and most sophisticated litigation and we have a new set of “names,” including David Byers, Alan D’Silva, Kathryn Chalmers, Peter Howard, Katherine Kay, and, until recently, Sean Dunphy. The other offices have also raised their game, including Montreal, where, despite the relative paucity of highlevel cases, we have attracted more than our share of major business litigation in recent years. Litigation has undergone significant transformation, not only in the technological advances, which include e-filings and videoconference proceedings, but also the manner in which litigation is carried out, partly as a result of the decisions of the courts on matters of conflicts and the duty of loyalty to clients. The development of litigation boutiques has been a direct result of the increasing number of actual legal conflicts or potential business conflicts occurring within the large business law firms. This sort of specialty practice has been more common in Toronto than in Montreal, where there has been notable resistance and, aside from two firms, Irving Mitchell Kalichman and Woods (James Woods was once a litigator with the firm but left to set off on his own just as he was about to become a partner), there are very few such boutiques. Even Oslers, trailing clouds of glory from Toronto, has maintained the traditional Quebec model of keeping its litigation capacity within the larger firm. This traditional model, especially within a full-service business law firm, does little to assist in the matter of conflicts, with the result that they are an increasing issue, requiring increasing attention. class actions: a modern infestation Class actions are a relatively new phenomenon in Canada and the firm’s exposure to them has generally been in defending against such claims. In many circumstances, class actions are little more than speculative attempts by bottom-feeder lawyers to find someone with deep pockets who can be sued on behalf of a “class” of potential plaintiffs. Many suspect that a significant portion of such actions has been devised by plaintiffs’ lawyers more for the benefit of their own pocketbooks than for the benefit of their clients. The firm has acquired considerable expertise in dealing with these claims, including Winners Merchants International and tjx Companies,

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Inc. in connection with a computer class action and other Canadian litigation matters; and Tate & Lyle, a US manufacturer of sweeteners, in Ontario and British Columbia class actions regarding alleged price-fixing. In the class action field, we have been active in several provinces, principally Ontario, Quebec, and British Columbia. Ainslie v. CV Technologies Inc.2 was a decision of the Ontario Superior Court in one of the first cases to interpret the secondary market liability provisions of the Ontario Securities Act. These provisions create a statutory cause of action for secondary market liability but require leave of the court to commence the action. A group of shareholders started a proposed class action against cv Technologies and certain directors and officers in which they brought a motion for leave to commence an action. Relying on some obiter comments in an earlier case, the plaintiffs sought to compel each of the defendants to swear an affidavit or be examined on the motion. Justice Lax dismissed the motion, holding that the leave requirement has a “gatekeeper” function protecting defendants from unmeritorious, coercive, litigation. The onus is on plaintiffs to demonstrate the merit of their claim before the defendants are forced to respond. Therefore, the defendants were free to file affidavits but could not be required to do so. The decision is important because it limits the ability of plaintiffs’ counsel to conduct costly “fishing expeditions” in attempts to locate defendants against whom they can build a case. In Sauer v. Canada (Attorney General),3 Byers and D’Silva acted for Ridley Corporation Limited (Ridley Australia), a defendant in a proposed class action arising from international border closures to Canadian beef and cattle following a mad cow diagnosis in Alberta in 2003. The representative plaintiff, on behalf of a proposed class of a mere one hundred thousand Canadian cattle farmers, sought certification of an action for economic losses exceeding $20 billion against Ridley Australia, its Canadian subsidiary, and the federal Crown. The plaintiff alleged that Ridley Canada manufactured and distributed the cattle feed that infected the Alberta cow and sought to pierce the corporate veil in order to hold Ridley Australia (whose pockets were considerably deeper than those of Ridley Canada) responsible for its subsidiary’s acts. Each defendant moved to strike the claims against it. Only Ridley Australia succeeded. Mr Justice Warren Winkler (before his appointment as chief justice of Ontario) reaffirmed the well-established principle that conduct akin to fraud is required in order to justify piercing the corporate veil. The plaintiff had failed to plead any material facts demonstrating such conduct and therefore had disclosed no cause of action against Ridley Australia. 2 Ainslie v. CV Technologies Inc. [2008] 93 OR (3d) 200, November 21, 2008. 3 Sauer v. Canada (Attorney General) [2006] 79 OR (3d) 19, January 5, 2006.

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We also acted for Wyeth in consumer class actions relating to both overthe-counter and prescription drugs, the landlord of Sunrise Propane in class actions arising from the explosion of Sunrise facilities in Toronto, and Gordon Food Services in defeating certification in a proposed class action alleging conspiracy and breaches of the Competition Act in connection with the Quiznos franchise system. The firm defended Menu Foods in class actions arising out of the recall of pet food and Infineon Technologies North America in class actions in Ontario, Quebec, and British Columbia alleging a price-fixing conspiracy in respect of computer chips and defeated the bc and Quebec certification at first instance on behalf of the defendants. Further appeal proceedings are pending. We represented the independent directors in the American International Group, Inc. (aig) secondary market securities class action, Sony Corporation in connection with class proceedings commenced in several Canadian provinces alleging price-fixing in computer chips, and aim/Trimark in a Quebec $500 million class action arising out of an Ontario Securities Commission markettiming investigation. The firm acted for FedEx to defeat a class action certification motion in British Columbia, Wyeth Consumer Health Care Inc. in its successful defence of a motion seeking the authorization of a class action in Quebec, and Nvidia Corporation in a proposed product liability class action in Ontario. Air Canada retained the firm to defend against a set of class actions commenced in Ontario, Quebec, and British Columbia alleging price-fixing in the supply of air cargo services (as well as in connection with related investigations by competition authorities), as did Redline Communications in a secondary market securities class action, Medtronic Inc. in the defence of a product liability class action and the dismissal of certain appeals in the case, and Bear Lake Gold Ltd. in a secondary market class action. We represented the Canadian Imperial Bank of Commerce to defend a class action alleging breach of customer information, cibc and Laurentian Bank (in a joint case with other banks) in class actions related to interbank foreign exchange rates for Visa transactions, alleged to be an illegal charge under the Quebec Consumer Protection Act, and the Toronto Transit Commission (ttc) in the dismissal of a $100 million class action that alleged negligence in managing construction along a transit route. We have acted in several additional class actions regarding securities, including Eastern Platinum in its defence of a securities-based class action. We have also defended kg Display Co. Ltd. in a class action alleging a price-fixing conspiracy in lcd panels, Briggs & Stratton in class actions in Ontario and Quebec for alleged misrepresentation and conspiracy, and Future Foam against class actions in Ontario, British Columbia and, most recently, Quebec that alleged price-fixing in respect of polyurethane foam.

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In David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co.,4 a $5 billion class action was commenced against all insurers in Canada and involved the interpretation of the Ontario Insurance Act and related regulations. A five-judge panel of the Ontario Court of Appeal took the unusual step of declaring that the Court of Appeal had erred in a previous decision when interpreting the province’s insurance legislation. In the earlier case, McNaughton Automotive,5 the Court had held that, where a vehicle is damaged beyond repair and the insurer elects to take title to the salvage, the insurer cannot then reduce its payment to the insured by the amount of the deductible set out in the policy. D’Silva made the lead submissions on behalf of three insurers, who filed extensive evidence relating to the legislative history and intent of the relevant legislative provisions. With the benefit of this information, which had not been available in McNaughton Automotive, the Court reversed its earlier decision and reaffirmed longstanding industry practice permitting the application of deductibles in these “total loss” situations. D’Silva was a lateral recruit from Faskens in 2003 and has added considerable stature and big-name reputation to our Toronto office. Quite apart from his facility before the courts, he has both interest and expertise in marketing, something on which the litigation group at the time needed support. In 2005 he led the efforts to publish the booklet “Litigation Unleashed” in anticipation of amendments to the Ontario Securities Act, which were expected to lead to more securities fraud class actions. It gave us a great head start in that market, where the firm is now a clear leader. He has also become a leader at the insurance litigation bar and in 2004, with Chubb Insurance, published a book on directors’ liability entitled Canadian Risk Management Guide, at the time of writing in the process of coming out in a second edition. Kay has become a leader at the competition bar. Reflecting the importance of commercial litigation as a core element of the firm, she and Chalmers have both had terms as members of the firm’s partnership board. Eliot Kolers is already showing signs of being among the next leaders. John Judge has branched into commercial arbitration and has developed a strong reputation in the field. Peter Cullen and Doug Harrison have played an increasing role in the firm’s internal risk management following the retirement of David Angus, who had headed up that portfolio for many years.

4 David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. [2005]54 OR (3d) 704, June 15, 2005. 5 McNaughton Automotive [2001] CanLII 21203 (Ont CA) June 18, 2001.

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insurance-related litigation D’Silva has appeared in several leading cases since his arrival at the firm. One was Unifund Assurance v. Insurance Corporation of British Columbia,6 a case that established that the reimbursement provisions of Ontario’s insurance regime did not apply to an out-of-province insurer. Two Ontario residents, the Brennans, were injured when their car was struck by a tractortrailer during a trip in British Columbia. Their Ontario insurer, Unifund, paid them the “statutory accident benefits” payable under the Ontario Insurance Act. The Brennans sued the driver of the tractor-trailer in British Columbia and were awarded $2.5 million against the driver’s insurer, icbc. The award was reduced by the no-fault benefits already paid by Unifund. Unifund then looked to icbc to indemnify it for the no-fault benefits it had paid, and applied to have an arbitrator appointed under the provisions of the Insurance Act. We acted for icbc at all levels of court intervention and successfully argued in the Supreme Court of Canada that, first, a court, not an arbitrator, should resolve a constitutional challenge to the legislation pursuant to which the arbitrator is appointed and, second, that icbc lacked the connection with Ontario that would justify subjecting it to the Ontario Insurance Act. Childs v. Desormeaux,7 was a landmark decision of the Supreme Court of Canada regarding the liability of social hosts for actions of their intoxicated guests. The appellant, Zoe Childs, sued drunk driver Dwight Desormeaux for severely injuring her in a car accident. Since Desormeaux did not have insurance, the appellant also sued the two hosts of the “bring your own booze” party that Desormeaux had attended that evening, alleging that they negligently failed to prevent Desormeaux from driving while drunk. The Court held that social hosts do not owe a duty of care to third parties to monitor their guests’ consumption of alcohol and intoxicated conduct. D’Silva represented the Insurance Bureau of Canada as intervenor in the proceedings, representing all insurers in Canada. Citadel General Insurance Co. v. Vytlingam8 and Lumbermens Mutual Casualty Co. v. Herbison9 are two cases that clarified the interpretation of the “use and operation” provisions in insurance policies and legislation. In Vytlingam, the claimant was injured when two individuals used a truck to transport boulders to a highway overpass and then to drop them on to

6 Unifund Assurance v. Insurance Corporation of British Columbia [2003] SCC 40, July 17, 2003. 7 Childs v. Desormeaux [2006] SCC 18, May 5, 2006. 8 Citadel General Insurance Co. v. Vytlingam [2007] SCC 46, October 19, 2007. 9 Lumbermens Mutual Casualty Co. v. Herbison [2007] SCC 47, October 19, 2007.

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passing traffic below the overpass. In Herbison, the claimant had been shot during a hunting accident after his friend drove to the hunting site, got out of his truck, and shot at what he thought was a deer, with the truck’s headlights as the only source of light. In both cases, the claimants sought reimbursement from an automobile insurer. The claims were brought under provisions of an insurance policy in Vytlingam and of the Insurance Act in Herbison, which allow recovery for parties who have been injured directly or indirectly by use or operation of a motor vehicle. In both cases, the Supreme Court of Canada quite sensibly held that the injuries were not covered by the automobile insurance policy or the statute. For coverage to be triggered, there must be an unbroken chain of causation linking the conduct of the wrongdoer, as a driver, to the injuries underlying the claim. D’Silva represented the Insurance Bureau of Canada as intervenor in both cases, highlighting the concern that insurers do not intend to cover, and cannot adequately anticipate, risks unconnected to driving. In Morrow v. Zhang,10 the Alberta Court of Appeal overturned a trial court decision to strike down the Minor Injury Regulation (mir) portion of Alberta’s motor vehicle insurance regime. The plaintiffs had challenged the constitutionality of the mir’s $4,000 cap on recovery for non-pecuniary damages for minor injuries. The trial judge had held that the cap discriminated against minor injury claimants contrary to the equality guarantee in subsection 15(1) of the Canadian Charter of Rights and Freedoms and that the discrimination was not justified under section 1 of the Charter. On appeal, the Court found that the trial judge erred in failing to consider the insurance scheme as a whole. Onex v. American Home11 was a decision under the new summary judgment rules in which D’Silva acted for several insurers of excess coverage for directors and officers liability in Canada, the uk, and the US who were successful in having a $65 million claim dismissed. The claim had been brought by directors and officers of Magnatrax, who were seeking indemnification of their losses and defence costs in a multi-million dollar securities case in Georgia. The directors and officers sought to draw on their primary insurance policy with American Home and on several layers of excess insurance under an insurance policy issued in 2004–05. The excess insurers argued that the directors and officers had had notice of the claim in a previous policy year and were covered only under their primary policy with American Home. Dunn v. Chubb Insurance Company of Canada12 was an appeal concerning our client’s obligations as directors and officers insurer of Nortel’s 10 Morrow v. Zhang [2009] ABCA 215, June 12, 2009. 11 Onex v. American Home [2011] ONSC 1142, June 30, 2011. 12 Dunn v. Chubb Insurance Company of Canada [2011] ONCA 36, January 18, 2011.

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former chief executive officer, Frank Dunn, and chief financial officer, Douglas Beatty. Dunn and Beatty had coverage for up to 90 per cent of their legal defence costs under a d&o liability insurance policy with Chubb. Both Dunn and Beatty had been named as defendants in a number of proceedings from 1999 to 2003. Chubb took the position that misconduct allegations in 2000–01 were related to allegations made in earlier proceedings and were therefore covered under the 1999–2001 policy, which had already expired. Chubb also argued that misconduct allegations in 2002–03 occurred outside the policy period and thus were not covered. An initial decision dismissing Dunn and Beatty’s applications for payment of defence costs was appealed, sent back to a further hearing in the Superior Court of Justice, then appealed again. The Court of Appeal finally held that Chubb had to pay 90 per cent of defence costs in the later proceedings. insurance and taxes In The Queen v. National Life Assurance Company of Canada,13 Chalmers, who has a welcome tendency to win complicated tax cases involving insurers, was lead counsel on an appeal by National Life against an income tax assessment that was of considerable interest to the insurance industry and actuaries and all but impossible for most lawyers and virtually all lay persons to understand. She won before the Tax Court of Canada but the Crown appealed to the Federal Court of Appeal, where she was again victorious. Stripped to its essentials, the issue was the calculation of a policy reserve, which is deductible in the computation of income with respect to a life insurance business, and whether or not the company could deduct a reserve with respect to its potential liability under Ultraflex policies, which offered policyholders a choice of both fixed term investments held in the company’s general fund and variable investments held in its segregated funds. s t a t e s k u l d u g g e ry The firm was retained on behalf of Kuwait Airways Corporation (kac) in its successful appeal before the Supreme Court of Canada against the Republic of Iraq. The background to this ongoing litigation, the longestlasting litigation before the English courts, reads like a combination of a crime and a spy novel in which the truth is stranger than fiction. The genesis of the action dates back to the invasion of Kuwait by Iraq leading to the first Gulf War. When Iraq invaded, it took possession of all the aircraft 13 The Queen v. National Life Assurance Company of Canada [2006] TCC 551, October 13, 2006.

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it could get its hands on in Kuwait, including the portion of the Kuwait Airways Corporation that was then in Kuwait. After the defeat of the Iraqis, kac instituted legal proceedings against Iraq Airways Corporation (iac) in the uk courts, claiming damages with respect to the inability to retrieve much of the aircraft and the supply of parts and machinery. This sparked a series of epic battles, spiced with outright lies, fabricated evidence, destruction of evidence, refusals to comply with court orders (including direct Iraqi orders to act contrary to such court orders), leaked information and data, everything that could be imagined where at least one of the parties demonstrated not even a nodding acquaintance with the truth. iac was ultimately ordered to pay over cad$1 billion to kac after lengthy and difficult proceedings, which were tainted with perjury and tactics on the part of iac and Iraq that, it was established, were intended to deceive the British Courts. As a result of Iraq’s control, funding, and supervision of iac’s defence throughout the proceedings, Iraq was ordered in the uk judgment to pay the costs of the action (totalling approximately $84 million). Iraq’s actions in controlling iac’s defence were found not to have been sovereign acts but rather acts that fell under commercial exception to the principle of state immunity under the uk State Immunity Act, 1978. In the Canadian courts, Iraq attempted to have actions against it dismissed on the basis of sovereign immunity. Our role was to oppose that claim. In Kuwait Airways Corporation v. The Republic of Iraq,14 the Supreme Court of Canada issued an important ruling on the scope of application of the federal State Immunity Act and the commercial activity exception to the principle of state immunity. The Supreme Court’s decision followed an application by kac to enforce the uk judgment in the province of Quebec, amounting to the equivalent of $84 million (the costs of the action as decided in the uk judgment) that had been issued against the Republic of Iraq. kac applied to have the uk judgment recognized and enforced pursuant to Articles 3155 and following the Civil Code of Quebec. Iraq moved for a dismissal of that application under the State Immunity Act (sia) on the ground that the impugned acts were sovereign acts and that Iraq was entitled to immunity from jurisdiction under Canadian law. The Quebec Superior Court dismissed kac‘s application, and the Court of Appeal dismissed kac’s appeal. In their view, Iraq’s participation in the uk proceedings against iac did not fall within the commercial activity exception to state immunity established in the sia. The Supreme Court of Canada, however, granted kac‘s application for leave to appeal. The Supreme Court first sought to address the scope of the sia’s application in the context of the recognition of a foreign judgment. It was found 14 Kuwait Airways Corporation v. The Republic of Iraq [2010] SCC 40, October 21, 2010.

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that, despite the uk Courts having denied Iraq immunity on identical facts after applying very similar laws, the sia did apply to determine whether the Quebec Superior Court had jurisdiction over Iraq. However the Supreme Court overruled the Quebec courts on the central issue by finding that Iraq’s control, funding, and supervision of the iac litigation proceedings in the uk fell within the “commercial activity” exception to state immunity in Section 5 of the sia and, as a result, Iraq could not assert its immunity from jurisdiction to dismiss the enforcement of the uk judgment in Quebec. The Court explained that, for sovereign immunity to apply, it was not sufficient for the acts to have been performed to protect a state interest or to attain a public policy objective. The nature of the acts had to be examined in their context, which included an analysis of their purpose. In this case it was necessary to accept the findings of facts of the British Court contained in the uk judgment. In summary, the Supreme Court decision in KAC vs. Iraq confirms the application in Canada of the restrictive approach to state immunity, whereby immunity is limited to the sovereign activities of a foreign state. Unless the impugned state act is truly a sovereign act, a commercial activity exception to state immunity shall apply. The application for the recognition and enforcement of the uk judgment has been remanded to the Quebec Superior Court for a hearing on kac‘s application for recognition and enforcement of the uk judgment. Just as an example of the nature of the litigation and the tactics of Iraq, Steel J. in the English High Court had the following observations: 213. As if this was not enough, the subsequent unearthing of the policy of concealment of documents and the startling pertinence of the documents revealed in consequence puts matters beyond argument. In my judgment, it is clear beyond a doubt that both trials proceeded on an entirely false basis, the falsity of which was knowingly induced by iac. As Longmore L. J. put the matter in the judgment on appeal in regard to privilege: 40. … here there was a widespread conspiracy to deceive the English Court which was acted upon and which has been proved to have led not only to perjury but to forgery and the perversion of justice on a remarkable and almost unprecedented scale.” sports – not all the action is on the f i e l d o f p l ay The firm represents Orca Bay Sports and Entertainment, owner of the Vancouver Canucks, in a lawsuit brought by former Colorado Avalanche player Steve Moore. In a 2004 game against the Canucks, Todd Bertuzzi hit Moore, leaving him with broken vertebrae and a concussion, which

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ended his National Hockey League career. Moore is suing both Bertuzzi and the Canucks for damages for loss of his nhl income and future income, which could reach $40 million. Also in the sports field, during the summer of 2000 the firm was retained by Shauna Nolden with respect to her disputed placement as a coach on the Canadian Olympic team. Ms Nolden was the first female coach ever appointed to the Canadian Olympic Swimming Team. Her appointment was highly publicized and controversial. It led to appeals brought by a number of other national female coaches. Through a lengthy hearing process, Ms Nolden was reinstated on the Canadian Olympic team. The case received widespread media attention and was reported in all the major newspapers, television, and radio. D’Silva, who acted in the matter, was interviewed numerous times about the case and, as a result, has been contacted by another Olympic athlete in a similar situation. s h ow b i z In Motion Picture Distribution Inc. v. Loewy,15 we represented Motion Picture Distribution Inc. (mpd), which was seeking an injunction on short notice to prevent its former chair, Victor Loewy, from creating a competing business before arbitration proceedings could get underway. Justice Ground was persuaded that the movie distributor would suffer irreparable harm if Loewy, a prominent and well-connected figure in the film distribution industry, could compete with mpd, even for a period of time as short as two weeks. He granted a rare and sweeping injunction preventing Loewy from using confidential information, carrying on competing business, or soliciting clients or employees of mpd. D’Silva went on to represent mpd in the contested Plan of Arrangement relating to the sale of Alliance Atlantis. litigation in quebec Quebec may not lead the field in the volume of major commercial litigation, but it certainly generates its share of fascinating cases. Losing a Battle, but Winning a War From time to time in litigious matters, one can lose a battle but win the war. The opposite is occasionally true as well. Freiheit represented Gennium, a company that had a sub-distribution agreement for Quebec with a company that was responsible for the Canada-wide distribution of products 15 Motion Picture Distribution Inc. v. Loewy [2006] CanLII 29821, August 29, 2006.

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manufactured by Genpharm. The national distributor was doing a poor job for the manufacturer, whereas our client had succeeded over a period of two years in increasing Quebec sales from $2 million per month to close to $8 million a month. As a result, our client was making more money than the manufacturing drug company and it was obvious that it would continue to do particularly well. It therefore became an object of irresistible desire to the manufacturer. The distribution agreement between the national distributor and our client provided for an automatic termination of the sub-distribution agreement upon termination of the national agreement. The manufacturer, invoking the demonstrably poor performance of the national distributor, validly terminated the national distribution agreement and, invoking the automatic termination clause contained in the sub distribution agreement, immediately proceeded to attempt to take over the business of the sub-distributor, our client. Despite the all-but-unanimous opinion of the corporate lawyers that nothing could be done, Freiheit was able to obtain an injunction on the basis that there had developed a parallel agreement between the sub-distributor and the manufacturer, which would not result in automatic termination. Of greater significance, however, was the discovery, based on an errant e-mail (beware of e-mails …) that the manufacturer had, prior to the termination of the agreement, ensured that all of our client’s major employees would move over to the manufacturer upon termination. Although there was, arguably, some contractual basis that allowed this to happen, we discovered that the sales staff and the company’s vice president had conspired with the manufacturer to move, upon termination, to the employment of the manufacturer and put our client out of business. This allowed us to obtain a temporary injunction and the battle continued for more than a year. In the meantime, the manufacturer’s sales dropped dramatically, while our client was able to maintain its business relationships. Even though we were successful in obtaining a judgment for several million dollars, we eventually settled for less in order for the client to be able to get on with the business, which, during the period of the litigation, had been successfully re-established with the treacherous former employees sent on their way. Today the manufacturer is, for all practical purposes, nonexistent in the Quebec marketplace and our client has now expanded nationally. Monkey See, Monkey Do An interesting case involved parasitic commercial behaviour. Our client, a shoe retailer and manufacturer, essentially developed a business strategy that involved identifying styles produced by his competitors which he thought were likely to be successful. He would then purchase such shoes and send them to his own manufacturer with instructions to produce commercial

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quantities of exactly the same products. The manufacturer’s turnaround time was such that he could effectively compete with his competitors in lines that they themselves had developed. Legal proceedings were instituted by the competitors. The defence was of interest because, of course, we did not contest the fact that the original products were copied, since what the client sent to his manufacturer were, precisely, the competitors’ products. The defence was that there is no intellectual property in shoe design, especially since the design of shoes changes, almost without fail, every season. As there was no intellectual property in the shoes, there was nothing that our client could be sued for, since copying was not per se illegal. Where Does This Wine Come From? Wines that are sold in Quebec grocery stores or dépanneurs are not permitted to indicate their origin, such as Bordeaux or any other region where the grapes used to make the wines have been grown, on their packaging or labels. The only permitted clue is to designate the wine as coming from a particular country. The only exception is a small number of types of wine whose names are protected by statute (e.g., Champagne), which allows the bottler of the wine to indicate the region of origin and for it to be sold under that name in grocery stores. The Quebec Liquor Commission (la Société des alcools de Québec) quite enjoys its virtual monopoly in the field and entertains no desire to incur any serious competition from wine sold in grocery stores. Our client devised a unique way of indicating the region. The counter label, appearing on the back of the bottle, gave the name of the oenologist – the wine specialist – who had expertise in the particular wine and under whose supervision it had been developed. In each case, the oenologist came from a specific region, clearly described in the curriculum vita, which described the expert as having graduated from a wine college in that region, indicating that it was the region where the expert lived and worked and, of course, that the bottle contained the expert’s preferred wine. The purchaser could, therefore, deduce that, in all likelihood, the wine came from the same region as the expert. And, underlying the benefits derived from careful reading of product labels, indeed it did – the source of the wine was precisely what the purchaser was led to believe. We succeeded and the application for an injunction was dismissed. Offending the Conscience Freiheit, Fontaine and Pierre-Paul Daunais acted on an interesting case, that of Georges Marciano, co-founder of Guess Jeans, who eventually sold his business for more than $250 million. This fortune was stripped away

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as the result of a quasi-default judgment resulting from a lawsuit in the United States in which Marciano had sued five employees for embezzlement. He was unable to prove his case. The employees counterclaimed for hurt feelings, mental anguish, and similar elements. They won and the us civil jury awarded them an extraordinary $260 million in damages. Marciano was then put into bankruptcy in the United States, since in the United States an appellant is required to post a bond for 150 per cent of the amount awarded in first instance and he did not have the funds necessary to put up security for an appeal. Once he was bankrupt in the United States, the trustees in bankruptcy came to Canada to try to enforce the us bankruptcy proceedings here. They seized, ex parte and before judgment, art having a value of $40 million from Marciano’s first-class collection of contemporary art. In addition, they seized a world-famous diamond called the Chloe diamond (named after his daughter) worth approximately $30 million, a collection of Rolex watches worth more than $6 million, a collection of automobiles worth some $5 million, real estate worth more than $80 million, and in excess of $10 million cash in various bank accounts. We pleaded successfully in first instance that the original United States judgment offended the conscience of Canadians and was, therefore, contrary to public order and public policy and should not be recognized. The seizure was quashed and everything returned. The matter is currently in appeal. While it will be interesting to see the final outcome, this feature of many US civil jury awards is troubling to Canadians and may, in future, lead to a more general reassessment of the conditions for the recognition in Canada of judgments emanating from US courts. The Sponsorship Scandal In the next generation of Quebec litigators, Louis P. Bélanger has figured prominently in many leading cases. He was retained to act on behalf of Malcolm Media Inc. and Luc Lemay before the Commission of Inquiry into the Sponsorship Program and Advertising Activities, known generally as the Gomery Commission, created by the federal Liberal government. Our client, who was the single largest beneficiary of sponsorship funds, became a party before the commission, which was the most prominent commission of inquiry of the last decade in Quebec. Bélanger was successful and avoided having any formal blame attributed to our client, who was eventually described by the commissioner as a “respectable businessman.” This was not, however, the end of the matter. The attorney general of Canada filed civil proceedings against a number of the recipients of sponsorship funds, including former senior civil servant Chuck Guité, several marketing agencies, and our client, claiming more than $40 million. This action is still pending before the Quebec Superior Court but has already

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given rise to a fascinating debate, which eventually reached the Supreme Court of Canada, regarding the confidentiality of journalistic sources. Unbeknown to the general public at the time, when Daniel Leblanc, a journalist from the Globe and Mail, began writing about the sponsorship program, he benefitted from information provided by a secret source within the federal government. This was only revealed when Leblanc later published a book, in which he revealed the existence of the source but did not disclose the identity of the individual. When made aware of the book and its contents, Bélanger realized that if the information provided by the government source to Leblanc, which dated back to more than three years before the suit was filed, had been known or ought to have been known by the government at the time, this would support one of our client’s grounds of defence, namely, prescription (i.e., the failure to take action within the limitation period for doing so). He therefore initiated a traditional investigation process, through examinations under oath, of individuals who could, potentially, have been the source of such government knowledge. Upon learning of this, the Globe and Mail and Leblanc petitioned the court to stop our client from attempting to find the identity of Leblanc’s source. This proceeding gave rise to a pre-trial examination of Leblanc before the Quebec Superior Court, trying to narrow down not so much, at first, the identity of the source but whether or not the source worked for the federal government (either as a civil servant or a political appointee) and if so, in which department and so forth. Objections were raised by the Globe and Mail and Leblanc, claiming the existence of a journalistic privilege that permitted them to keep the identity of the source secret. The Quebec Superior Court dismissed their objections. The Court of Appeal dismissed their further appeal and refused a motion addressed to it for leave to appeal to the Supreme Court of Canada, but the Supreme Court of Canada later granted a motion for such leave. Before the Supreme Court of Canada, the Globe and Mail and Leblanc attempted to convince the Court that the confidentiality of sources should be protected by an absolute class privilege. Our submission was that such matters should be examined on a case-by-case basis. There were further arguments made as to whether the test in civil matters (the first time this question had been considered by the Supreme Court of Canada) should be different from the test historically applied in common law or public matters. In the end, our client was victorious. The court refused to recognize a class privilege and decided that the common law test that applied in public matters should also apply, without any distinction, in civil matters. The matter was accordingly referred back to the Quebec Superior Court to decide the objections on the basis of the now-confirmed test, indicating, as well, that a number of questions asked of Leblanc, to which there had

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been objections, were perfectly allowable, to the extent they did not tend to reveal the identity of the source, as only the questions which might help find the identity of the source would be subject to the test. Price-fixing: Limiting the Damage In 2004, the Competition Bureau of Canada initiated an investigation into allegations of gasoline price-fixing in certain areas of the province of Quebec using, among other investigative tools, wiretaps of some 225,000 telephone conversations. The investigation culminated in the issuance and execution of some eighty-five search warrants. Criminal charges were first laid on June 12, 2008, with others laid somewhat later, against a number of corporate and individual defendants. Dealing first with the criminal investigation, Bélanger was instrumental in concluding an agreement with the bureau whereby our client, Ultramar, and one of its employees pleaded guilty, but only to charges pertaining to the two smallest of the four markets in which charges had been laid and only for a period of three months during the total investigation period of two years. This enabled our client to benefit from the bureau’s clemency program, which included immunity from any other criminal prosecution due to having cooperated with the investigation, on the one hand, and the fact that it was established, to the bureau’s satisfaction, that the “haute direction” of Ultramar was not aware of the actions of some of its rogue employees in the field, who had not respected Ultramar’s code of conduct, which clearly prohibited any contact with competitors regarding prices. On the day following the initial announcement of criminal charges to be laid by the bureau, no fewer than four class actions were filed in several judicial districts in Quebec on behalf of gasoline purchasers, predictably claiming direct and punitive damages. While the class was certified (as expected, since most of the corporate and individual defendants had pled guilty in one way or another), attempts by the plaintiffs to broaden the scope of the class action beyond the four specifically identified markets in which the bureau had investigated and laid charges were dismissed. The court held that the judicial process, even in the case of a class action, could not be used as a form of a commission of inquiry into what, if anything, might have happened in the rest of the province. With approximately seventy corporate and individual defendants, represented by some sixty-eight lawyers and thirty-eight different law firms, this is and remains one of, if not the largest, class actions ever instituted in Quebec, at least as measured by the number of defendant parties. Headed by Bélanger, Stikeman Elliott has acted as one of the lead counsels in this case. The matter is still pending before the court.

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Election Problems Michel Décary, Stephen Hamilton, Patrick Desalliers, Maxime Gagné, and Rosalie Landry-Schönbeck acted for the Conservative Party of Canada in a very high profile dispute with Elections Canada over election spending in the 2006 federal election. (Décary, who was rated “as one of the best lawyers in the country” by Chambers Global 2012 in dispute resolution, served as regent of the American College of Trial Lawyers for the provinces of Quebec and Ontario and upstate New York from 2006 until 2010. He was only the second Quebecer to occupy such a position.) Elections Canada had refused to certify $1.3 million in advertising expenses declared by Conservative Party candidates, arguing that the party had improperly used an “in-and-out” scheme to transfer those expenses to the candidates and that the expenses were properly party expenses. The alleged “in-and-out” scheme involved the party transferring money to candidates, who then used the money to pay the party for the advertising. The party would have been over its spending limit if the expenses were included as party expenses. We brought proceedings for judicial review in the Federal Court on behalf of two official agents, asking the court to order the chief electoral officer (the ceoc) to certify the challenged expenses as candidate expenses (with the result that the receiver general would be required to reimburse a portion of the expenses). The case received extensive media coverage, most notably following the seizure carried out with the assistance of the rcmp at the party’s offices in Ottawa as part of the investigation into whether the party had exceeded its spending limit. On January 18, 2010, the Federal Court granted the application for judicial review. This was a resounding victory for the party. In an eighty-four page decision, Justice Martineau ruled that “in-and-out” transactions were permitted under the Canada Elections Act. He also found that the applicants had truly and willingly incurred these expenses. The Federal Court of Appeal granted the chief electoral officer’s appeal. The Federal Court of Appeal did not, however, review all the evidence that was filed before Justice Martineau but rather limited itself to answering “whether there was material before the ceoc on which he could reasonably have based his decision, not whether the ceoc made the correct or even the better decision.” Furthermore, the Federal Court of Appeal noted that: “Whether the evidence before the Chief Electoral Officer (ceoc) might have enabled the ceoc reasonably to conclude that the costs of the electoral expenses had been duly incurred by the candidates is irrelevant in this application […].” The Supreme Court of Canada agreed to review the Federal Court of Appeal decision but the party dis-

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continued the appeal prior to the hearing, following a settlement of the charges and the civil matters. Décary and Hamilton also represented the Canadian ambassador to Syria, Franco Pillarella, and Canadian Consul Leo Martel during the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (the O’Connor Inquiry), after they gave testimony before the commission in camera and just as the media turned its attention to Ambassador Pillarella’s actions in relation to Maher Arar’s imprisonment and torture in Syria. The Globe and Mail, in particular, commented in an editorial that “damning documents were released in April, pointing to Canadian complicity in torture.” Décary and Hamilton called upon a former White House official and specialist on Syria, Flynt Leverett, and a former British ambassador to Syria, Henry Hogger, to rebut the allegations made against Ambassador Pillarella and to give a better understanding of the operation of the Syrian secret services authority and the very difficult challenges faced by Canadian consular officials in Syria. At the end of the day, the commission did not make any findings of blame against either official. Décary was retained to act as lead counsel to the commission of inquiry established by the government of Quebec and headed by former premier Pierre-Marc Johnson to investigate the circumstances surrounding the collapse of a portion of the de la Concorde overpass in September 2006 (the Johnson Inquiry). The investigation and hearings, which lasted close to nine months, clearly demonstrated the totally inadequate role played by some companies and individuals involved in the construction and supervision of the de la Concorde overpass and resulted in very serious conclusions pronounced against several of them. The Johnson Inquiry also noted the deteriorated state of Quebec’s bridges and of numerous road infrastructures everywhere in North America and recommended a quick and aggressive shift to stabilize the situation and ensure that Quebecers once again enjoy a high quality infrastructure. The government, following the commission’s recommendations, made bridge rehabilitation a priority and dedicated a budget of more than $5 billion for the 2007–12 budgetary period for the rehabilitation or reconstruction of existing structures. All in the Family In a particularly complex matter, the firm represented a client within the context of a family dispute between beneficiaries of various trusts created in several foreign jurisdictions. The peculiarity of the case was that the matter was connected to and had the potential to be litigated in several different jurisdictions throughout the world, including the Channel Islands,

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a Caribbean country, Canada, the United States, and Hong Kong. Because the matter, both in law and in fact, spanned so many jurisdictions, potentially involving different common law and civil law legal regimes, not only did Paul Setlakwe act as counsel in matters of trust law but Bélanger was retained as litigation counsel and coordinator. Besides giving strategic advice regarding the conduct of the litigation, our role extended to the hiring and supervision of legal counsel in the various jurisdictions involved for purposes of providing advice on matters of their domestic law, which we coordinated in order to ensure an efficient and successful global strategy. We also engaged a senior and highly specialized barrister in London, England, to plead a portion of the case in Hong Kong. The client was successful in satisfactorily resolving the matter. Cabling Capers Bélanger represented Bell Canada in a major dispute with Vidéotron pertaining to the use of cablevision wiring in multi-dwelling residential buildings in Quebec. The litigation arose as the result of a Canadian Radio-television Telecommunications Commission (crtc) policy requiring that the owner of such wiring give access to its competitors, for a regulated fee, should the residents decide to change their cablevision supplier. Vidéotron owned a substantial amount of such wiring in Quebec, particularly in Montreal. This had resulted from the fact that Vidéotron had, over time, acquired cf Cable tv and other companies that had, when contractors were building multi-dwelling residential properties, offered to install the wiring free of charge on condition that they would remain the owner of the wiring and therefore have exclusive service in the residential buildings. Pierre-Karl Péladeau of Quebecor thought he had found a way to avoid application of the crtc policy by causing Vidéotron to sell its wiring to a newly formed corporate entity owned by Quebecor (Câblage qmi), whose sole purpose was to own the wiring and to lease it to Vidéotron and competitors of Vidéotron but, in the latter case, for a much greater fee than that permitted by the crtc. Quebecor’s reasoning was that, since Câblage qmi was not a cable distributor, it was not subject to the federal jurisdiction on telecommunications and could, therefore, ignore any crtc requirements limiting fees to be charged for the use of the wiring. The matter was litigated both before the Quebec Superior Court and the crtc. Quebecor and Vidéotron lost their bid to circumvent federal jurisdiction. Of interest was the fact that while Vidéotron and Câblage qmi were alleged to be separate entities, operating independently, when Péladeau, part of the Quebecor panel of witnesses before the crtc, ended up answering the questions instead of officials from both Vidéotron and Câblage qmi, it became apparent that there was only one directing mind

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behind the effort to circumvent the jurisdiction of the crtc over Vidéotron and the wiring network. An important issue, from an evidentiary perspective, was considered when Bell sought access before the Superior Court to all of Quebecor’s contracts pertaining to the wiring. Quebecor objected vociferously, on the basis that such contracts contained extremely sensitive commercial information that ought not to be made available to Bell, its arch-enemy and competitor. In a precedent-setting decision, the Quebec Superior Court ordered that a data room be set up in which the contracts would be made available to Bell’s legal counsel, for lawyers’ eyes only, subject to counsel’s right to petition the court for permission to use information that it might consider to be relevant in challenging Quebecor’s position on the merits. Noise at Mont-Tremblant We represent the owner of Circuit Mont-Tremblant, an international class racetrack that dates back to 1964. It was later purchased by a new owner, who significantly upgraded the track, which had, in the past, hosted Formula 1 and other car races. The problem, not unlike that involved in building homes near airports, was that in 1964 there were few, if any, houses in the vicinity of the track. In the course of a boom in residential development in Mont Tremblant during the 1990s, a large number of houses were built in the hills surrounding the facility. The owners of the new houses did not like the noise of the cars using the track. They initiated legal proceedings (a nullity action) against the racetrack to invalidate a municipal by-law regulating its activities and to stop its operations on the basis that the noise generated by the authorized activities constituted a nuisance. A second action (an injunction action) was initiated on the basis that the upgrade work encroached upon an environmentally protected area without authorization, sanction for which should be tantamount to closing down the track. The nullity action is currently before the Quebec Court of Appeal, where we are acting as lead counsel (replacing the law firm that had acted in the Superior Court) to challenge the decision of the Superior Court, which had determined that it was unreasonable to allow the track to operate, even on a limited basis, with cars “without mufflers.” The overriding importance of this debate is that, should such restriction be maintained, it would effectively require the owner of a racetrack to operate the track without racing cars, since Formula 1 and lower-rated competitions are essentially held with cars that do not have, and are not designed to have, mufflers. This case presents the classic, and ever-increasing, clash between a more militant public that is increasingly challenging the (sometimes longstanding) activities of neighbours, who are trying to operate their business in a decreasingly tolerant environment. It is an example of a typical “not

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in my backyard” case against a neighbour who was there long before the person raising the claim. Lawyers and Taxes Bélanger has been retained in a tax case of a sort by our Quebec professional corporation, the Barreau du Québec, to represent the interests of its members before the Quebec Court of Appeal in the context of gst and qst applicable to judicial costs. Court judgments are often rendered allowing or dismissing actions “with costs.” In such event, counsel of record typically prepare a bill of costs, based on the applicable tariff of court costs or on the basis of any special directions contained in the judgment, and present it to opposing counsel for approval on a consent basis, or present it to court officials for purposes of “taxing” the bill of costs, a term used to indicate the court’s sanctioning of the amount. Following the replacement of federal and provincial sales taxes with the gst and qst, lawyers would prepare their bills of costs and add gst and qst. This practice had been challenged before the Quebec Superior Court, which decided that, since these taxes were related to “services rendered” and that the winning counsel of record had (obviously) not rendered services to the opposing party, no gst and qst could be claimed through a bill of costs. This case was followed consistently for many years before all levels of civil courts in Quebec (Quebec Court, Superior Court, and Court of Appeal), which also extended the principle to taxes on judicial disbursements. Several years later, the attorney general of Canada won a judgment in one of the tobacco cases, in which the bill of costs included, as a component of judicial disbursements, large sums paid for expert fees. The attorney general decided to claim, in the applicable bill of costs, the gst and qst that had been disbursed in payment of the experts’ invoices. Following the consistent case law and practice in such matters, the Court of Appeal taxing officer allowed the experts’ fees but disallowed the gst and qst paid in respect of such disbursements. The attorney general applied to a judge of the Quebec Court of Appeal, seeking a review of this decision. The judge decided that the matter was of sufficient importance (applying as it did to every bill of costs taxed before the Quebec courts) to warrant referral of the question to a full bench of the court. At that point, the Barreau du Québec decided to retain our services to defend the right of lawyers to be reimbursed the gst and qst paid on judicial disbursements irrespective of the fact that, in most cases, they had been reimbursed the taxes by their clients, to whom they customarily back-charge their disbursements. The clients, in turn, would normally be entitled to input credits for purposes of their own gst and qst filings. We won the case, the court deciding that the tax treatment

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of these amounts should have no bearing on the right of counsel to be reimbursed fully for judicial disbursements, including gst and qst. This case has overturned many years of jurisprudence. As a result, millions of dollars of gst and qst paid each year as part of judicial disbursements are now required to be reimbursed by the losing party to the winning counsel. Keeping Those Aircraft on the Ground Air Canada had leased four Airbus A-320 aircraft to the Mexican national carrier, Mexicana. Having learned of the potential financial demise of Mexicana, Air Canada wanted to ensure the return of its aircraft. Anticipating (undoubtedly correctly) that Mexicana would not willingly return them, when Air Canada discovered one evening that two of the four aircraft had landed in Montreal and Calgary respectively (there are not too many Mexicana flights originating in Montreal and Calgary, so it was not difficult to identify the particular aircraft), it called Bélanger at about 9:30 p.m., stating that it wanted to prevent these two aircraft, now in Canada, from departing the following morning at 7:00 a.m., when they were scheduled to fly back to Mexico. Within the hour, teams were constituted on the ground in Montreal and Calgary, witnesses were brought in, documentation was obtained and analyzed, affidavits were drafted, proceedings were prepared with members of the team handling, concurrently, interviews with witnesses and drafting of the proceedings, coordinating with the court to have a judge available during the night to authorize writs of seizure, coordinating with airport security to allow access in the security zone for bailiffs to seize the aircraft, and all other elements of such pre-emptive proceedings. They proceeded to court in Montreal around 6:00 a.m. to obtain the court’s authorization to seize the aircraft then about to leave from Montreal. We then proceeded to the airport where bailiffs first served the control tower, advising the air traffic controllers that as a result of the writs of seizure the aircraft was not to be authorized to take off under any circumstances, and then proceeded to the gate (fortunately prior to passenger embarkation), serving the flight crew with the proceedings and grounding the aircraft. The aircraft in Calgary was also seized and prevented from leaving. While all of the same background work had to be done, the Calgary team, led by Mike Mestinsek, determined that no court order was required for repossession and headed for the airport with a civil bailiff in tow. They arrived at 5:30 a.m. to meet with Air Canada personnel, on-site rcmp officers and airport security officials. By 6:30, everything was in place and the group proceeded to the gate where the target aircraft was parked, awaiting its passengers for the morning flight to Mexico City. Passing

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through security, decked with special security tags and flanked by rcmp officers, as the entourage approached the gate, Kelly Fluker (a student at the time) remarked, “My god, I feel like I’m on csi!” At the gate, seizure of the aircraft was as simple as walking down the ramp to the door, proceeding into the cockpit, and securing the Aircraft Airworthiness Certificate and pilot’s logbook, very efficiently performed by the bailiff. Without these documents, the aircraft was effectively grounded, since commercial aircraft cannot fly without them on board. When the Mexicana flight crew arrived, there were some tense moments as they absorbed the news delivered by Mestinsek – the aircraft had been seized and was going nowhere. It took several minutes to convince the Mexicana station manager, who arrived on the scene in short order, that the seizure was not only real but permanent. After Air Canada technicians removed the plane from the gate, the Mexicana pilot said to Mestinsek before departing, “I guess no operations today.” Very shortly thereafter Mexicana filed for court protection but was unsuccessful in challenging Air Canada’s seizure of the leased aircraft. As a result, Air Canada was able to recover two of its aircraft and put them to other productive use much faster than if it had been drawn into protracted litigation. This happy outcome resulted from our ability to prepare strategies, draft the required documents, make submissions, and seize and prevent the aircraft from leaving the jurisdiction, all within a few hours of getting a “cold turkey” call from the client. One of the Calgary securities partners, Stuart Olley, was not as impressed with the outcome of the successful seizure in Calgary – he had been scheduled to fly from Mexico City to Calgary that same day on the return flight of the seized aircraft and was now without a plane. His return-to-Calgary fiasco was compensated for with wine offered by Mestinsek. Where Directors Trump Shareholders We acted in an important corporate case in Quebec in which Matco, a retailer of building supplies, needed funding to grow its business for the benefit of its shareholders, failing which it would be forced to contemplate selling its assets. One of its biggest shareholders (approximately 30 per cent) was rona, which also was one of its competitors. rona had refused to provide financing for the necessary growth. Matco therefore resolved to sell its stores to another player in the market, bmr, a rona competitor. rona then petitioned the court to stop Matco from selling all its operational assets to a competitor without its authorization, despite the advice of the board of directors and the independent committee recommending the sale. The essential principle at the heart of the debate was whether a Quebec corporation could sell all its assets without the approval

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of its shareholders, as was required for a federally incorporated entity. rona complained that the board of directors did not have that power and that the sale was oppressive of its rights. Bélanger was successful in securing a precedent-setting decision dismissing rona’s attempt to stop the sale. The decision confirmed the authority of the board of directors to sell all the assets of the corporation, despite the objections of its most important shareholder. What became interesting thereafter, from a strategic perspective, was that once the injunction was dismissed by the Quebec Superior Court, rona filed an appeal in the Quebec Court of Appeal but failed to request that court to issue a temporary restraining order to stop the sale, perhaps thinking that the appeal itself (and the possibility that it might be succesful), would have a sufficiently chilling effect on the pending transaction. Bélanger was successful in convincing our corporate colleagues to move ahead with the transaction, despite the fact the matter was under appeal. Since no order had been sought, much less obtained, to stop the transaction, nothing legally prevented it from moving ahead. Yes, they said, but what would happen if the transaction were completed, but the Court of Appeal overturned the first judgment and declared it was not legal? The answer to that was, once the transaction was completed, the matter would become moot before the Court of Appeal, since the proceedings were aimed at stopping something that had not already occurred, so we could seek the dismissal of the appeal on that ground. It was a bold move, it was done, and it was successful. The transaction went ahead and the appeal was dismissed without being heard on the merits. Helping a Former Partner We represented Michel Vennat, one of our former partners, who was, at the time leading to our involvement, president of the Business Development Bank of Canada. He had been fired by the Martin Government in the wake of a judgment issued by the Quebec Superior Court, which held that the bank, not Vennat (who was not even a party to the case), had acted improperly in reneging on an agreement concerning the departure of a previous president. The court had been particularly harsh in some of its comments regarding Vennat, who had only been a witness in the case and therefore did not have any way to appeal against the contents of the decision in an attempt to overturn the criticism of his conduct as chair of the board at the time. Vennat had later become president of the organization in lieu of the interim replacement of the previous president. Bélanger was successful before the Federal Court of Canada in attacking the validity of the Governor-in-Council’s decree suspending and later dismissing Vennat as president of the bank. The government did not appeal to the Federal

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Court of Appeal. With Vennat’s dismissal having been quashed, the matter continued before the Quebec Superior Court, claiming damages both from the bank and the Federal Government. The matter was settled with the bank, Vennat receiving full compensation for what was owed to him for the remainder of his mandate for the bank, plus a satisfactory settlement with the Federal Government. On the other hand, the government refused to acknowledge that it had acted improperly, without cause, and to rectify the situation as soon as possible rather than forcing a wronged citizen to resort to a contested case before the courts for redress. Crisis Management: Pre-emptive Action and Preventive Measures An important by-product of the extensive expertise acquired in extraordinary recourses such as injunctions and seizures is that we have developed the ability to react extremely quickly to emergency and last-minute situations in order to bring matters quickly under control for the benefit of clients. Two examples of this crisis management ability illustrate the point. When the underground garage slab in an apartment complex in Ville SaintLaurent collapsed, killing one person, our client, capreit, one of the largest real estate income trusts in Canada, called upon us to help them handle the crisis arising from this sudden and unfortunate accident. Within hours, we had a crisis management team on the ground, handling liaison with the police (in case a criminal investigation was to be launched), the coroner’s office (which would investigate and issue a report on the fatality), the Régie du bâtiment du Québec (the rbq, which had condemned the building and evacuated its hundreds of residents and would be investigating, with predictable post facto zeal, the state of the building), the Commission de la santé et de la securité de la travail (csst) to obtain the necessary approvals for workers to get access to the building for investigative and repair purposes), the City of Montreal (with respect to emergency measures and municipal regulations, meeting with the mayor and his chief of staff in the process), the insurers (with respect to the anticipated claims), the media (deciding on what disclosures should be made, drafting press releases, and preparing the company’s representatives for meetings with the press), hiring experts (to determine the cause of the accident and the necessary remedial actions and monitoring the experts for the rbq to ensure the protection of our client’s interests), and dealing with claims by tenants (while evacuated and thereafter). The speed with which we organized the team and the efficiency with which it worked throughout the process ensured that our client ended up with no criminal investigation, satisfactory expert reports, no significant blame from the coroner, and minimal claims. We were also retained by the owner of the Marriott Residence on Peel Street when a piece of the concrete façade of the hotel fell and killed a

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patron of the restaurant on the ground floor, causing Peel Street to be closed for several weeks, in which we essentially carried out our crisis management functions in much the same way as in the previous case with equally good results. Bastarache Commission While the Gomery Commission remains the most notorious of the recent Quebec commissions of inquiry, there have been others of more local interest, especially the Bastarache Commission regarding judicial appointments in Quebec, in which Suzanne Côté appeared on behalf of the Quebec Liberal Party and, indirectly, Premier Jean Charest, who had been accused by one of his former ministers of justice of having interfered in the appointment process. The former minister suffered from a lack of credibility and too many too convenient lapses of memory, but it provided a summer’s entertainment for a somewhat bored Quebec public. She also appeared on behalf of Jean Pelletier, who had been improperly fired as president of via Rail, although a second firing was eventually upheld by the Quebec Court of Appeal. Côté was also part of the process of reviewing the judicial conduct and suitability for continuance in office of Justice Ruffo conducted by the Quebec Court of Appeal. Shama Textile Yves Martineau in the Montreal office was involved in a long trial with a good deal of bizarre testimony. In 1991, sixteen knitting machines and various parts were damaged in a fire. The owners of Shama Textile, the Ahmad brothers, claimed several million dollars from insurers at Lloyds, claiming that the machines and parts were a total loss. We discovered later that the machines had been repaired and were currently being operated by a numbered company owned by the wife of one of the Ahmad brothers. The same machines were later reported as a total loss in yet another fire. The outcome was that both companies had filed lawsuits claiming the full value of the same machines, which by then had twice been “totally lost.” We also discovered that the volume of spare parts claimed as part of the loss were far more than sufficient to have completely refurbished thirty-two knitting machines, even though Shama Textile had only sixteen, and the fact that spare parts were available from a supplier within twenty-four hours. Perhaps somewhat surprisingly, the cases went all the way to trial and were heard by Mr Justice Jacques Fournier of the Quebec Superior Court. In the course of the trial, Martineau was cross-examining one of directors of the company, Rafiullah Ahmad. During the cross-examination, Ahmad admitted that he had perjured himself in previous testimony, given

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out of court, several years earlier. Martineau recalls that this was the only time he had ever been able to force a witness to admit that he had perjured himself. He was pleased with his progress. Ahmad went on to explain that the reason he had lied in his previous testimony was that the lawyer then questioning him was constantly hitting him over the head during the examination for discovery. As can be imagined, Mr Justice Fournier began to flip furiously through the pages of the discovery transcript, looking (in vain) for any comment or notation concerning physical abuse. The most bizarre aspect of the whole thing was that, using Ahmad’s logic, the pain induced by the alleged blows did not cause him to refuse to answer, to stop testifying, to dodge, or even to hit back. It just caused him to lie. It may come as no surprise that the Ahmads were not successful in their claims. Only One Bidder? In 2008 a team led by Éric Mongeau won a major case for Alstom. The Quebec government, acting through la Société de transport de Montréal (stm) had decided that a new generation of cars was needed for the Montreal metro system and in May 2006 Quebec had announced that it had requested the stm to enter into an exclusive negotiation with Bombardier to replace the 336 rubber-wheeled vehicles of the metro system. Quebec had argued that Bombardier was the sole qualified supplier of metro cars in Canada, but Alstom responded by stating that the experience it had acquired on worldwide basis could easily be transferred to its plants in SorelTracy and Calgary. Alstom was specialized in the energy and transport sectors, having built tgv trains and several other metropolitan transport systems. This led to an action by Alstom against stm. The Quebec Superior Court ordered stm to proceed by a call for tenders, rather than giving the contract directly to Bombardier. The judgment of the Superior Court allowed Alstom to file its own submission provided stm did not appeal. As a result, the new generation of metro cars in Montreal is being jointly manufactured by Alstom and Bombardier. The case led to many other subsequent developments, including the appointment of former premier Lucien Bouchard as negotiator for the stm. additional actions In addition to the selected cases already identified, the firm has acted across a broad spectrum of important legal issues. By way of a brief description only, these have included Cineplex Entertainment lp in relation to mediation of a dispute involving Canadian and US theatre chains regarding alleged human rights violations, Liberty Mutual Group in respect of asbestos

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claims advanced in hundreds of US state courts, with the insurance coverage issues being litigated in Ontario, and Lakeport Brewing in proceedings before the Competition Tribunal in which the merging parties defeated a request by the commissioner of competition for an injunction to restrain the completion of the transaction. We represented the Canadian Storage Media Alliance before the Federal Court of Appeal and were successful in challenging a decision of the Copyright Appeal Board that had the effect of extending levies to the permanent memory of mp3 players, on the basis that such a decision was beyond the board’s jurisdiction. We have also represented the Aquilini family in its successful defence of claims disputing their ownership of the Vancouver Canucks (described in more detail in the review of the Vancouver office), the successful intervenors, including Syncrude, Imperial Oil, and Suncor, in the appeal before the Alberta Court of Appeal that upheld the right of employers to conduct drug testing in safety sensitive jobs, and the Quebec Employers’ Council in its successful application for judicial review to overturn an unprecedented ruling in a pay equity matter. Other matters include acting for tjx Companies Inc. in connection with a computer data security action, srm Global Master Fund Limited Partnership in connection with the proxy contest involving HudBay Minerals Inc., the Ontario Energy Board in a successful appeal of a decision of the Ontario Divisional Court in a rates dispute, and State Farm Mutual Insurance Company in a successful appeal of a constitutional case with significant implications for legislative caps on damage awards. We represented TeleZone Inc. to obtain a dismissal of an appeal by the Crown in a case related to an alleged breach of duty by Industry Canada, cv Technologies and certain of its officers and directors in the defence of secondary market liability actions in Alberta and Ontario arising out of its cold-fx product, and jll Partners, Inc. in its litigation against Patheon Inc. and a subsequent settlement. We acted for Vincor Inc. in its successful injunction regarding the use of the Breast Cancer Foundation pink ribbon image on wine bottles, Essar Steel Algoma Inc. in obtaining an injunction that secured non-interruption of its supply agreement with a US iron-ore supplier, Ellerforth Investments in defending an appeal from an order dissolving a partnership under the “just and equitable” provisions of the Partnership Act, and the Canadian Real Estate Association in the case brought by the commissioner of competition alleging abuse of dominance related to residential real estate brokerage services. More recently we have been engaged on behalf of Barclays Bank plc in claims related to an unrestructured asset-backed commercial paper (abcp) conduit trust, British American Tobacco in various actions by provincial governments to reduce health care costs, which will test the ability of governments to recover

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damages from tobacco companies, and Airboss of America Corp. to obtain a favourable judgment in a major commercial case relating to the purchase price for shares. Mestinsek, Lou Cusano, and Evan Dickinson from the Calgary office secured a major victory in May 2011 for Devon Canada Corp. in a precedent-setting case involving ownership of coal bed methane gas on split-title lands where coal rights have been severed from natural gas rights that made national and international news and was highlighted in several legal publications. tax litigation The firm has had, dating back to Stikeman himself, a well-established capacity in tax litigation and has appeared in many of the leading cases in Canadian tax history. Cliff Rand heads up litigation in the Toronto office and the author and Pierre Martel do the same for the Montreal office. Rand finished our sixth decade with a spectacular win before the Federal Court of Appeal in Collins & Aikman,16 while the author and Pierre-Louis Lesaunier had an even more spectacular defeat at the hands of a unanimous Supreme Court of Canada in Copthorne Holdings Ltd.17 (Where is the Privy Council when you really need it?) This loss was tempered only slightly by an earlier win in the Tremblay18 appeals before the Federal Court of Appeal (argued on a straight interpretation basis, after earlier assessments based on the general anti-avoidance rule had been withdrawn as a result of our successful examinations on discovery of the Crown’s witness) and a consent to judgment in the Tax Court of Canada negotiated on behalf of long-time client Air Liquide in which the Crown agreed, following examinations on discovery, that “stacked” partnerships that had the effect of deferring the taxation of income by twenty-one months did not, in the circumstances, trigger application of the general anti-avoidance rule. Part of the memorabilia on display in the reception area of the Montreal office to celebrate the firm’s sixtieth anniversary is a piece of the tax history of the firm. Called the Doomsday Book, it was maintained in handwritten form in a large bank-ledger-type bound book. Its purpose was to act as the prescription diary for tax matters. Any time an assessment was

16 Collins & Aikman Products Co. v. The Queen [2011] 1 C.T.C. 250 (FCA) September 29, 2010. 17 Copthorne Holdings Ltd. v. The Queen [2012] 2 C.T.C. 29 (SCC) December 16, 2011. 18 Tremblay v. The Queen [2010] 6 C.T.C. 262 (FCA) May 12, 2010.

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issued and the firm was involved, the name of the client was entered, along with the date of the assessment and the due date of any required proceeding. For many years it was kept by Marjorie Cornell, Heward Stikeman’s long-time secretary, and as deadlines grew closer and closer, she would send increasingly peremptory notices to the lawyer involved, including Stikeman, to be sure that no deadline was missed. Because of the level of the work we have had over the years, reading the names of the taxpayers involved is like a history of some of the most important tax cases argued before the Canadian courts. mooting The Sopinka Cup is the most prominent litigation moot court competition in Canada. Named after our former partner and justice of the Supreme Court, Justice John Sopinka, it consists of a several-day competition held in Ottawa in which teams from across Canada, having won regional competitions, compete against each other for the top recognition. It is not only a pleading competition but a mock trial in which competitors examine and cross-examine witnesses (who are lawyers or actors who have learned their roles from a script that is carefully designed to allow contestants to exercise their skills) and then plead their cases. The jury consists of twelve people, including active judges and senior trial lawyers from all over Canada, often with a Supreme Court justice as part of the panel. The trials are presided over by active judges. Bélanger participated for five consecutive seasons as a member of the jury and acted as de facto foreman of the jury for a number of years. This experience provides a unique opportunity to see and appreciate the talent of future lawyers, some of whom will most likely become some of the best trial lawyers in Canada. Vincent Prager has been actively involved for many years as a judge in the prestigious Jessop Cup moots, which have both Canadian and international rounds. Bélanger was also specially ranked by Lexpert as one of the 100 most creative lawyers in Canada, the only litigation lawyer from the firm to be so nominated, although he shares membership in this exclusive “club” with Simon Romano, Ed Waitzer, Marvin Yontef, Robert Hogan (prior to his judicial appointment), Sidney Horn, and Pierre Raymond. He regards this as much more important than being among the 500 best lawyers in Canada from year to year, since he particularly values creativity as his areas of practice often present difficult challenges, involving cases the nature of which has never been tried before and where the territory is often uncharted, with little, if any, precedent. It is not surprising that Bélanger became the first co-chair of the national litigation practice group.

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conclusion It is not feasible to describe in detail all of the cases argued by members of the firm in the course of the last decade. A few have been commented upon by way of example, especially those of national importance or that illustrate advances in the law. Clients are, very occasionally, interested in the litigation of points of law, especially if they are successful, but one of the real hallmarks of a first class litigation section is the ability to resolve disputes in a manner satisfactory to clients without the necessity of actually having to proceed with the full process of a trial and subsequent appeals. Well-organized, well-prepared, and well-recognized counsel, especially when dealing with similarly prepared counsel on the other side, can, more often than not, find an acceptable solution short of trials. This is generally cheaper and more satisfactory to both sides of a dispute. As Sun Tzu has noted in The Art of War, the best generals are not necessarily the ones who fight the most wars but those who achieve without war what a successful war might have achieved. Not enough public credit goes to those who settle important cases, including our own litigators, and it is the gunfighters who occasionally garner reputations perhaps better deserved in other quarters. That said, the knowledge on the part of an adverse party that you are willing, and more than able, to fight if no other solution can be found is a particularly important element of any settlement discussions. Most litigation that proceeds through the whole course reflects, essentially, a failure on the part of reasonable people to agree on a reasonable outcome. To be fair, however, there are certain issues that, given their importance, call for judicial decision and it is the best lawyers who assist the courts in reaching the best decisions.

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chapter 7

The Sum of the Parts …

Although commentary on the issues faced in the operation of a major law firm in the twenty-first century is important, this work is nevertheless a history (at least partial) of the firm itself, which is, above all else, a collection of the talented people who make it up. As discussed elsewhere there will always be those who move on to other challenges and different careers. Some will also run the course of a full career and retire due to age, lifestyle, or health concerns. These are all “losses” of a sort and it is always bittersweet to recognize the end of relationships. We have, however, had the misfortune to lose a few extraordinary talented colleagues to early death. This work is intended primarily for members of the firm, so much of the content of this chapter is for their consumption and the reinforcement of their own memories of the individuals involved and the effect of some or all of them on their own lives. bad losses John Stransman More than a decade after the fact, it is sometimes difficult to recall the huge impact on the Toronto office resulting from the untimely death of John Stransman from brain cancer in April 2002 in his fiftieth year, less than three months after the firm celebrated its own fiftieth anniversary. Departures caused by the death of a partner or lawyer are the worst, particularly in a firm that is, on average, relatively young. Stransman’s death was an enormous shock to everyone, although it was felt most acutely among our colleagues in Toronto. He was just beginning to approach the peak years of his career in corporate law and was clearly the leading practitioner in the firm and someone who would almost certainly have led it

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some day. Increasingly recognized throughout the profession as someone with a spectacular future, Stransman was one of the foundations on which the firm had begun to build for the next generation, so there was organizational as well as personal devastation. As Ed Waitzer said in his eulogy, delivered at the funeral service held at the Holy Blossom Temple on 24 April 2002:1 I have been fortunate to have spent a lot of time with John over the last quarter century and in particular during the last ten months. We loved each other although, as with so much we did together, there was no need to verbalize our feelings. I thought I might reflect on just a few of the qualities that made him such a special person to so many of us. The most immediately striking quality was the intensity of his focus and determination. His classmates at Harvard Law School dubbed it “Stransmania.” John was extraordinary in his desire to challenge and be challenged. There was no fear, nor a sense of being bound by the logic or assumptions of others. Without ever needing to say it, he lived the adage of Pierre Trudeau –”just watch me” – every day, Remarkably, he did it without pretext or pretence, and with an infectious sense of inner calm. Whether at work or play, he embraced risk, anchored by a conviction that he would, at the appropriate time, see a way through. And he did – from his first major case (where he appealed to a judge’s knowledge of expropriation law to constrain the powers of public corporations going private), to scores of creative corporate transactions, to the redesign of market structure in our securities industry and energy sector, to the recent landmark settlement effected on behalf of the receiver of ybm Magnex to mentoring his colleagues and dealing with the mundane details of leading a law firm, to helping anyone with a problem, no matter how small or large. John was always the master of the elegant solution. He did all this with a remarkable sense of adventure and of commitment to his relationships. John had the classic heroic qualities we associate with ideal leadership. He led the charge, literally and by example, often into uncharted or perilous territory, willingly followed by a devoted team. As he used to say, “don’t look down.” He never did. In one of scores of calls and e-mails, I was reminded by Steve Halperin of an instance where this was not the case. John was acting for a potential friendly buyer in a hostile takeover contest. Steve rep1 37, no. 1, July 2002, 1-4.

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resented the target company. Having persuaded the Ontario Securities Commission staff that highly controversial regulatory relief should be granted to our client, John found himself before the vice chair of the commission arguing that immediate disclosure of the relief would be highly prejudicial. The osc staff were not convinced. In the middle of John’s submissions, his cell phone rang, playing the William Tell overture. As if on cue (knowing John, perhaps it was), John proclaimed, “Here comes the cavalry to the rescue!” Without skipping a beat, Jack Geller retorted, “you’re going to need more than the cavalry,” to which John immediately responded, “in that case, I will turn it over to Steve.” The timing was brilliant and, in due course, Jack was persuaded. As always, a team effort, with John in the lead. There was also a sense of fun in most things John did. Few laughed or played harder. He never took himself too seriously. There was a time when, if you called a phone number in Hong Kong, you got what turned out to be a recording of someone screaming at you for taking so long to call, conducting several conversations at the same time, cutting you off before you could get a word in edgewise, and so on. The trick was to persuade your victim to invest in a long distance call and to stay on long enough to discover they had been had. Among us all, John was the best. Who else could be so serious in setting someone up, telling them that the client might be a bit upset about us taking too long to refer the matter on and maintaining an absolutely serious composure even while being effusively thanked for the referral? He loved nothing more than sharing his knowledge, skills and sense of excitement with others. Calin Rovinescu reminded me this morning of a trip we all took to Los Angeles many years ago. John insisted that he and Anne go with Calin, Elaine and their daughter, Laura, to the zoo. On arrival, John got out his book and sat in the sun, Anne got out her book and sat in the shade. They had been to the zoo many times, but wanted to make sure that their friends saw it. Everything John did at work, at play or at home was more than a task but, rather, an end in itself. How he did things was more important than any particular result. And, somehow, it always worked. Interestingly, this was most apparent in areas where John did not enjoy a reputation. He would tell you he knew nothing about litigation but, after listening to the specialists, would instinctively figure out the right strategy. Our tax lawyers loved working with John even though he “knew nothing about tax.” So, too, with coaching the boys’ sports teams or winning dance contests at firm functions.

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Mark Salzman was a concert cellist who gave up a promising career to become a writer. After his remarkable novel, Lying Awake, came out, he wrote an article in The New Yorker about how he went to hear Yo-Yo Ma perform one evening and that night, lying awake, realized that the most he could ever do would be to play the notes well. That is how many of us felt in John’s presence. In the last ten months, John faced his most private and intimidating challenge. As always, he embraced it with courage, curiosity, diligence, dignity and determination. He was completely self-aware. I remember chats with him as he struggled a year ago with his last hostile takeover, realizing that something was wrong. Other than minor and uncharacteristic irritability, no one on the deal noticed anything out of place and, true to form, John helped guide the transaction to an extraordinary result. A few months later, John knew he was being misdiagnosed after his first seizure. Just as he knew, last Sunday morning, that the time had come. As always, he was prepared. As always, his first concerns were his family and his friends. Throughout this epic struggle, his thoughtfulness and quest for elegant solutions remained intact. Those of us who spent time with him knew he was looking after us and others around him at least as much as we could possibly reciprocate. No detail was too small. In January, he struggled to remember (and, of course, eventually found) an old issue of National Geographic when Smadar and I were heading for Asia, because it had stories in it about two of our destinations. He set the time and place and insisted on dressing up in his hallmark tie and suspenders a week ago Monday to go to dinner with “the Fraze” – one of many affectionate nicknames he had (this one for Fraser Elliott). No casual observer would have noticed anything out of order with John. Anne had to impose a curfew after several hours or our animated conversation, led by John, would have gone on well into the night. The last prayer in our memorial service asks God to grant rest and perfect repose to John’s soul. For as long as I knew him and to his last day, John had a stature, strength, and dignity that graced all of us in his orbit in many different and enduring ways. He can rest well knowing that his legacy has deeply touched and will live on in so many of us. The loss of Stransman was the main dampener on what was otherwise an optimistic beginning of a new decade. It led to a particular emphasis on rebuilding, both in corporate and competition law, which became a focus of the Toronto office.

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John Paton Scarcely eighteen months later, in September 2003, John Paton, in the Vancouver office, died at the age of fifty-three. He had been a major contributor to the success of the firm in British Columbia, a superb lawyer in the commercial and real estate fields. A memorial scholarship fund has been established at the Faculty of Law at the University of British Columbia in his memory. Fraser Elliott While we all knew that it had to happen some day, on January 26, 2005 Fraser Elliott died peacefully in Toronto at the age of eighty-three. He had been in declining health for some time, but retained all of his intellectual faculties to the moment of his death, visiting the office for the last time only a few weeks before he died. Everyone involved with the firm can share some of the credit for the many achievements over the last sixty years – partners, associates, students, staff, and the clients who provided the opportunities for the collective demonstration of what was possible with a team of smart, innovative, and motivated professions. But, if there is a Stikeman Elliott “brand,” in the sense of what the firm has become, Fraser Elliott was the designer and monitor of that brand. He had the advantage of association with the gifted and innovative Heward Stikeman, but it was his clear-thinking and organizational and business skills that first enabled and later drove the firm to its present position at the top of the Canadian business law community. No one had ever accomplished anything similar in Canada and the vision of a firm having a national and international reputation, grown largely from within and never by merger, was his. Stikeman, for all his enormous intellect and energy, was largely unconcerned with the business aspects of running and expanding a law firm. The two of them made a unique combination. They liked to think of themselves as complementary, and in many important respects were, but they were opposite in others. As with magnets, opposites attract. Stikeman was spontaneous and eclectic, widely read, interested in a vast number of subjects, gregarious and outgoing. Elliott was much more reserved (except with his close friends), deliberate, strategic, spare in his prose and speech, never using two words where one – or none – would do. From the beginnings of the firm as a tax and corporate boutique, he saw the potential of the combination of the two emerging fields and the huge growth that was fuelled by the post-war economic boom. He saw the beginning of the westward move of the business community as it recognized the need to expand from its former base in Montreal and as unease about the political and

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economic stability in Quebec became acute. While it was more than likely that the impetus for an office in London came from Stikeman, with his many contacts in that area, it was Elliott who made it work. The idea for that office, in today’s language, would be expressed as managing “inbound” legal services, a precocious, albeit prescient, move, especially for a young firm with barely more than a dozen lawyers. The concept, however, resonated with Elliott, who also watched much of the inbound work overfly Montreal for Toronto. If the model worked with London, why would it not work in Toronto? Why should the firm not, in effect, be meeting the new clients as they got off the plane in Toronto? There was a barrier – the prohibition against interprovincial law partnerships. The answer: create a second partnership, this one in Ontario but with both to be operated economically as a single, integrated, partnership. The economic levels could be managed by adjusting the source of each partner’s income where there were partners with calls to each of the Quebec and Ontario Bars. Perhaps the idea was too obvious to have been thought of before Stikeman Elliott simply did it. The coup was made even more dramatic by attracting the former premier of Ontario, John Robarts, and the former director of tax litigation from the federal Department of Justice, Donald Bowman, to become letterhead partners. In 1996, when Quebec finally allowed national partnerships, the Quebec and Ontario partnerships were merged. This involved a series of steps all carefully mapped out by Robert Raizenne, a partner in the Montreal tax section. Marc Barbeau was then a relatively new corporate partner and recruited a trusted associate, Kevin Kyte, to help in the sensitive internal matter. In essence, the Quebec partnership sold its practice to the Ontario partnership, which then issued it an interest in the Ontario partnership. At 9:00 a.m. on June 1, the Quebec partnership was dissolved and then liquidated. Raizenne wanted to be certain that the next step, the partition of the Ontario partnership interest among the owners (the former partners of the Quebec partnership), would undisputedly occur after that time. So they obtained powers of attorney from each of the Quebec partners and arranged to meet on the morning of June 1 at Barbeau’s home on Metcalfe Avenue, along with notary Kevin Leonard, who lived up the street. At 9:10 they went out on the balcony and signed the partition agreement. On that balcony, on a beautiful spring morning, the final act of the members of a partnership conceived and designed almost a half century earlier on a plywood platform for a model train was completed and units of our national partnership were distributed to the Quebec partners. A good part of the efforts to make this unique combination work and to expand the network of offices has been described in the companion volume to this book, Stikeman Elliott: The First Fifty Years, but, with the per-

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spective of an additional ten years’ experience, it is even clearer that, without the drive and organized thinking that Elliott contributed, the firm would not be what it is today and there would, in all likelihood, not be published histories of it. With his foresight and management, the firm has become an integral part of the recent history of the country as a whole and deeply implicated in many of the formative transactions in the business and commercial communities and in the leading cases decided by the Canadian courts. Its members are active across a variety of community, educational, and charitable organizations and its diaspora is international in scope. One of the aftereffects of Fraser Elliott’s death in 2005 centered around art. Over the years, Elliott had amassed a magnificent collection of Canadian and European art, much of it museum quality. Very generously, he had agreed to hang many pieces in firm offices, principally in Montreal and Toronto, which provided a visual treat for lawyers and clients alike. Upon his death, however, much of his art was donated to the Art Gallery of Ontario, among others, or was sold at auction. Both offices went immediately from feast to famine and we have scrambled to cover the walls with acceptable substitutes, while recognizing that we do not play in the same art league as Elliott. Alison Youngman If you had read about a fictional character whose life followed Alison Youngman’s experience, you would write the work off as a piece of schmaltzy pulp, not worthy of the effort of either reading or writing. Something like her life simply does not happen: the good guy cannot possibly win that big – especially when the good guy is a woman. Hers was not an auspicious beginning, having been put up for adoption at the age of six weeks, but her adoptive parents, who christened her Alison Joy Youngman, must have been immensely supportive and allowed her effervescent personality to emerge and flourish. Attending secondary school south of London, she worked as an au pair for a summer in France and took French courses at the Sorbonne in Paris, later enrolling in a secretarial and language-training school in London. After that, she and a friend came to Montreal for Expo ’67, returning to London only at Christmas more than a year later. After travelling to Australia, she found a job in the French embassy in Nepal and returned to England in 1970. Not long thereafter, she returned to Montreal and joined Stikeman Elliott (then Stikeman, Elliott, Tamaki, Mercier & Robb) in 1972 as a secretary. It did not take long for her to become a paralegal as well as taking courses toward a ba in economics and political science. In 1976 Toronto was, increasingly becoming the centre of Canadian business. Alison joined the exodus from Montreal during that period and joined the Toronto firm, soon

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becoming head of the paralegal department. She was noticed by Elliott, who had a keen eye and could recognize and appreciate talent at any level in the firm. Elliott encouraged her to apply to Osgoode Hall in its admission category for mature students, even though she had not yet completed her ba. She was accepted into Osgoode and graduated in 1984, the same year that her first son was born. She articled at Stikeman Elliott, beginning work when her son was three months old, and was engaged as an associate with the firm when she was called to the Ontario Bar in 1985. By then she was pregnant with her second son. Like most law firms of the day, Stikeman Elliott had no maternity-leave policy. The “process,” such as it was, required the female lawyer to approach the office managing partner and ask (Alison would have said “grovel”) for leave. Alison thought there should be, and campaigned for, a codified maternity leave policy. She was able to balance her professional life with her family life and volunteer activities with seemingly effortless grace, showing others that such a balance was both possible and achievable. As part of the firm’s corporate group, she was not only a capable lawyer in her own right but, having seen and lived the experience from secretary to paralegal to student to associate and to partner, she was in a unique position to mentor at any one of those levels. Her generous disposition and enthusiasm attracted everyone in need of counsel and encouragement to look to her for personal and career guidance and there are still many today whose careers have been influenced by the mentorship she provided. Her reputation in this sphere spread beyond the firm and she was the first Canadian to be appointed a mentor to a Business Law Fellow of the American Bar Association. She was a great believer in the advantages that technology would bring to the practice of law and, typically, set out to learn as much as she could, signing up for the part-time Masters program in Information Technology at Osgoode Hall in the 1990s. She recognized as well that times were changing for law firms as well as the means by which they marketed their services. No good deed going unpunished, she was appointed the head of the firm’s marketing group. As an adjunct to her interest in technology, she also built up a technology and outsourcing group within the firm. Knowledge management was another concern for Alison and she took a keen interest in this vital feature of modern practice, one in which the firm remains at the forefront of Canadian law firms and which is discussed in chapter 8. She was active in the American Bar Association and co-chaired the aba Negotiated Acquisitions Committee Task Force on Joint Ventures. She was chair of the board of the Canadian Breast Cancer Foundation and led the firm’s participation in and contributions to the annual cbcf-cibc Run for

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2009 Movember campaign – Toronto office First Row: Neil Shapiro, Venky Srinivasan, Vic Arora, Alex Slotta, Sean Gamble

2009 Movember campaign – Calgary office First Row: Cameron F. Schepp, Nick J. Kangles, Shashi B. Malik, Lou A. Cusano

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60th anniversary celebration – London office Laurent Fortier, Sherry L. Roth, Katherine L. Kay, Peter J. Cullen, Canadian artist Phil Richards, Pierre A. Raymond, William J. Braithwaite, Derek N. Linfield

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60th anniversary celebration – Ottawa office Ryan Sheahan, Nicholas McHaffie, Justine M. Whitehead, Marg Regensburger, Megan MacDonald, Alexandra Stockwell, Catherine Markadonis-Menard, June Dawson, Avril Milne, Holly McCormick, Robert Mysicka, Stuart C. McCormack

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50th anniversary celebration – Toronto office William J. Braithwaite, Roderick F. Barrett, R. Fraser Elliott

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John M. Stransman

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John N. Paton

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R. Fraser Elliott

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Alison J. Youngman

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Michael R. Carman

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Marc J. Laurin

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Gary F. Nachshen

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the Cure. In addition to her constant work on behalf of women in the firm and the profession, she was the Canadian president of the International Women’s Forum and served on the global board of the iwf, receiving its 2008 Sustainable Leadership Award. Her volunteer leadership, including with Out of the Cold, had been recognized earlier, in 2004, by the ywca of Metropolitan Toronto, which named her a Woman of Distinction. Giving back was an important theme of her entire life. “Volunteering,” she said, “is the gift that keeps growing. It is the other piece of my life – on the other side I have great clients and a very privileged life.” In the course of a routine medical check-up in November 2008, Alison mentioned a dry cough and a bit of a wheeze to her doctor. She had smoked before, but had given it up some fifteen years earlier. Further tests showed that she had large-cell carcinoma, a particularly virulent form of lung cancer. Cheerful and positive to the end, which everyone knew was not far off, she continued to work, refusing to cancel a trip to Barbados with her sons later in November. Two days before Christmas, oncologists at Memorial Sloan-Kettering Cancer Center confirmed the dire news and she died at home two and a half months later, on March 8, 2009, International Women’s Day, at the age of sixty. In many respects, Alison’s death had an even more profound and visceral impact throughout the firm than John Stransman’s seven years earlier. She had been with the firm longer and was well known by both the Toronto and Montreal offices, by the staff as well as the lawyers, and had a much broader community profile than anyone other than her own mentor, Fraser Elliott, who had spotted and encouraged her to reach her full potential. The outpouring of condolences and support was unprecedented. Partners of the firm donated $250,000, matched by the Ontario Trust for Student Support, to establish the Alison Youngman Entrance Award at Osgoode Hall. The annual interest from the fund is designated for a student entering the JD program who has financial need and a demonstrated history of community service, and involves a commitment to the student for all three years of the program. Michael R. Carman Only two months after the loss of Alison Youngman, Michael Carman died, also of cancer, on May 6, 2009. He had joined the firm in 1992 as a lateral hire from Blake, Cassels & Graydon. Mike continued to build the structured finance and financial products group following the departure of David Allan, who joined cibc Capital Markets. He developed an acknowledged reputation as one of the finest structured finance lawyers in the world and the group he led was second to none. As one of the first

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lawyers to work on swap contracts, he acted for the International Swaps and Derivatives Association, which led to the firm becoming the leading firm in Canada and one of the most prominent in the world in the field of derivatives products. He built the group by generating and handing over work to the young lawyers around him and then helped, mentored, and coached them as they developed their own expertise and reputations. Their success was his reward for his commitment to their careers. He was known throughout the Toronto office, in particular for his laid-back demeanour, approachability, and sense of humour, not to mention his penchant for casual attire. He loved conversation and always had well-considered views on the issues faced by the firm. Always willing to share his expertise, he had a particular talent for explaining the highly complex concepts in his area of specialization to non-specialist colleagues and clients in a clear, user-friendly, and collegial manner. He loved sport, baseball above all, and was immensely proud of the accomplishments of his son, Rob, who had enough talent to play US Collegiate ball. His last wish and trip before his death was to go to Florida to see Rob start for St Lawrence College. He had coached baseball in Pickering for many years and had requested that something be done for the Pickering Baseball Association as one of his final wishes. Members of the firm worked closely with his wife, Cathy, to see what the firm might do to memorialize him and she said he would have wanted to give something back. So the Michael R. Carman Memorial Fund was established to help construct a new batting cage and pitching facility and a new locker room at Brockridge Park in Pickering. When the firm approached the city of Pickering with the proposal, the city offered to name the park after Mike. We asked Cathy what she thought and, typical of Mike and his family, she said she was sure he would have been honoured by the gesture but would not have been comfortable drawing attention to himself. It was never “about Mike.” The amount raised was much more than had been expected, which made it possible for a scorer’s hut to be built behind home plate. Excess amounts were donated to the Princess Margaret Hospital, an institution also recognized by Mike in his final wishes. Marc Laurin Marc Laurin, a University of Sherbrooke graduate, had worked as counsel at Canadian Pacific for three years before joining the firm in Montreal in July 1983, becoming a partner in 1988. He was co-chair of the litigation group from the mid-1990s to 2001. A highly intelligent and thoroughly composed lawyer, Marc was creative and pragmatic when solving problems and had the added facility of making everything team-oriented, which was greatly appreciated by the lawyers with whom he worked and

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his clients, with whom he established strong relationships. He headed our construction law group and his participation in many commercial arbitrations and mediations during his career led him to establish the international arbitration group. He was known throughout the Montreal office as a kind-hearted giant, laid-back and approachable. Always ready to teach and help younger colleagues, he never hesitated to benefit from any help he received in turn, and infallibly acknowledged such help with a kind word, thank-you note, or a small gift. He was an extensive traveler, a fine gourmet, and a superb wine connoisseur, all wrapped in the package of his family, Claudette Couture, Chantal, and Christian, and his four grandchildren. The onset of his illness was, sadly, all too apparent, but everyone was proud of the way he fought it and the fact that he continued to work despite the difficulties. In February 2010, the Montreal office organized a fundraising event in his name with the objective of donating an Acculis Microwave Tissue Ablation System, the medical device that helped treat his cancer, to the Royal Victoria Hospital where he was receiving his treatments. The response to this initiative from partners, associates, employees, and friends was so generous that not only were we able to fund the purchase of the equipment but we were also able to create a fund to assist patients who could not afford to pay for treatment. Marc had the pleasure of seeing a living legacy in his name for the few months that remained for him. He died in Montreal on January 12, 2011, a month and a half before his fiftyeighth birthday. Gary Nachshen Sad as the losses of other partners had been, at least we had had some time to prepare for them and for friends to visit to provide some comfort and to say goodbyes. On March 24, 2011, however, we received the stunning news that Gary Nachshen had died the previous evening while on vacation with his family in the Turks and Caicos Islands. It was a complete shock to everyone and felt especially in the Toronto office and in Montreal, where he had started with the firm in 1986 and become a partner in 1996. He moved to Toronto the following year as the leader of the firm’s pension practice and a highly respected expert at the pensions Bar. Always thoughtful, Gary was devoted to the firm and its fabric and was very strategic about the development of its pension practice as part of the full range of business-related services offered to clients. Members of the firm and friends have established the Gary Nachshen Memorial Fund at the McGill University Faculty of Law to provide support and recognition through a combination of scholarships and bursaries.

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career decisions It is inevitable that from time to time some of our colleagues will find other interests and decide to move on. They leave gaps, often very serious, but not the devastation that accompanies something as shocking as an early death. There have been many such departures, summarized in the appendix and only a few are specifically mentioned here. Robert Hogan – Judicial Appointment Robert Hogan came to the firm in 1985 after having earned a Master’s degree in taxation from the University of Sherbrooke and took to income tax practice like a duck to water. Filled with drive and creativity, he soon became one of the leading practitioners in the field, sought after by many of the largest corporations in the country, including cn, Air Canada, bce, ypg, Aeroplan, and Abitibi and, among international clients, Bain Capital, Best Buy, Stone, and many more. His ability to add value to any deal made it a priority for clients to have him work on the related structuring and tax planning. He was indefatigable and one of our concerns was always that he not work so hard that he would endanger his health. He decided that, for exercise, he would take up boxing (not competitive, just the training and techniques), which he did with the same reckless energy that marked his practice. For many years he had a large heavy punching bag in his office. There is no evidence that he ever worked out on it in the office, but it was there for anyone else willing to risk skinning his knuckles. Hogan’s deals created a great deal of work for the corporate section of the firm because having such a poster boy on the tax side of any transaction made it easier to attract work than for firms where the tax lawyers were mere adjuncts to the commercial lawyers. Hogan, on the other hand, created the transactions, designed the structures, and had not the slightest hesitation in inserting himself into the middle of the business deals themselves. Apart from a couple of years when he went off with Fred Harvey to become a movie tycoon with Malo Films, Hogan spent his professional life with the firm before accepting an appointment as a judge of the Tax Court of Canada in the spring of 2008. Many people have observed that some lawyers seek judicial appointments for the economic certainty they provide, as well as the very generous pension at the end of the road. There are very few, on the other hand, who forego significant income to go to the Bench, especially at a young age, but in Hogan’s case he gave up – not to disclose his personal affairs – a lot of money per year for the privilege. He added significant technical strength to the court and has adapted to the particular rigours of judicial discipline as he completed the change from player to referee.

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During his time with the firm, Hogan became one of its “characters,” from the time he was ordered to do the homework assignment for the child of one of the tax partners while she worked on a transaction until he was sworn in as a judge. He was gregarious, full of confidence and opinions, engaging, an excellent mentor of younger lawyers, and a major part of the mortar that held the tax group and the office as a whole together. He was also somewhat rumpled in appearance and well short of being a precision draftsman. Everything was an adventure. Once, John Leopold brought him to a meeting in New York where a client was working on a hostile takeover bid by the Maxwell organization and a structure was required that would satisfy the Investment Canada approval process. They were flying from Montreal. Leopold confesses to being somewhat claustrophobic and deals with it as best he can when flying by sitting in an aisle seat. Hogan was beside the window. As the plane began to take off, Hogan suddenly stood up and said he had to get off the plane because it was going to crash. He was insistent. It was behaviour that would probably have him on a list of difficult travelers today, but nothing came of it on this occasion. Leopold let him have the aisle seat and suffered his own demons against the window. Arriving (without crashing) in New York, Hogan discovered that he had forgotten his passport. This was prior to the attacks on the World Trade Center, when the process of entry into the United States was more relaxed than it is now. They arrived at the firm’s office in New York for the meeting and the next thing Leopold saw was Hogan chasing (unsuccessfully) the taxi they had taken from the airport – he had left his copy of the Income Tax Act in it. Despite all this, he performed brilliantly at the meeting. They returned to Montreal the same day and Hogan set off the alarm at security – he was carrying the key to the firm’s washroom, still attached to the large metal tag designed to be heavy enough to make sure that one would not forget to return the key. When working his way verbally into or through a deal, Hogan often used a speaker-phone so that he could handle documents or make notes as required. One day a client called, so Hogan closed the door to his office to keep the noise from affecting anyone else and the contents of the discussions confidential in case there were other clients or non-lawyers within earshot. About half an hour later, the client called Ann Medeiros, Hogan’s legal assistant, to say that he had been disconnected and that it was urgent that he speak with Hogan. She opened the office door to say that the client was on the line and Hogan said, “… but we are speaking …” His monologue had gone on for five or more minutes without his realizing there was no one on the other end of the line. Hogan’s departure had a profound impact on the firm’s tax practice, not only in Montreal but also nationally, since he was in almost universal demand on any sophisticated commercial transaction that occurred during

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his last few years in private practice. The resulting scrambling accelerated the emergence of Marie-Andrée Beaudry, Luc Bernier, and Franco Gadoury as the new leaders in sophisticated transactional work, along with a number of talented associates. And More … Barry Emes, who had done so much to grow the fledgling Calgary office, decided that, as the result of a combination of health and lifestyle issues, he did not want to continue in practice. Calin Rovinescu had also succumbed to the challenges of private enterprise, leaving to become executive vice-president of Air Canada in 2000 and later president, after a brief stint with the investment banking firm of Genuity Capital Partners. Looking back, his inspired defence of Air Canada in a hostile takeover situation created such an identity of purpose with the company that a full time career with Air Canada seems a natural outcome for him. Others who moved on, for their own reasons, included Fred Harvey, Suzanne Côté and Etienne Massicotte. In 2010, Jill Hugessen left the firm to start her own business as a coach for human resources and professional development. She had begun at the firm in Montreal as an articling student, had been part of the corporate group, worked in the Sydney office for a couple of years, and eventually took some time off to raise her family. Upon returning, she decided that, rather than actively practice as a lawyer, she would oversee recruitment, training, and mentoring the organization of professional development activities within the firm. This role mirrored similar steps in Toronto, beginning with Anne Ristic’s work, and has proven to be particularly effective as the size of the firm increases, the intake of students and young lawyers accelerates, and the need for training over and above that received in universities and Bar admission courses becomes essential to high-level practice. Her leaving was a significant loss to the Montreal office and her position is now occupied by Michèle Denis. We have had the singular distinction of having four future deans of Faculties of Law come through the firm in the persons of Yves-Marie Morissette, Nicolas Kasirer, Sébastien Lebel-Grenier and Kim Brooks. Morissette and Kasirer were both deans of the Faculty of Law at McGill University and have both accepted appointments to the bench on the Quebec Court of Appeal. Lebel-Grenier has become dean of Law at the University of Sherbrooke, in charge of an active, ambitious young faculty. Brooks is now the Dean of Law at Dalhousie University. One of our young lawyers, Kim Thuy, has gone on to become a contemporary writer dealing with many aspects of Asian boatpeople.

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During the last decade, Jim Grant retired as a partner of the firm and former senator Maurice Riel died in 2005. Marc Lalonde became counsel to the firm, having reached the then- mandatory retirement age of seventytwo, and continued an extremely active and high-level international arbitration practice. The nature of that practice and the increasing likelihood of conflicts resulting from the expanding range of global activities carried on by the firm was such that we agreed with him that it would be best for him not to have any formal connection with the firm and, although he still leases space within the Montreal office, he is no longer in any danger of being conflicted in the acceptance of an arbitration mandate. François Mercier, who headed the firm’s litigation section in Montreal for many years, also retired at the age of seventy-two and died in Montreal in 2011. Peter O’Brien, one of the best-liked and most respected of the Montreal partners, who specialized in complex real estate matters, decided to give himself a sixtieth birthday present by retiring as a partner of the firm. He was much appreciated for his quick and amusing wit. Typical of his repartee was a story arising out of the description of boardrooms in the Montreal office. At the time, we had adopted typically imaginative names for two of the boardrooms on the fortieth floor of the Montreal offices. One was called “40 large” and the other “40 small.” O’Brien said that, if we really wanted to impress clients, we should not call “40 large” by its official description, namely “40 large,” but, instead, call it “40 small.” Modest creativity finally intervened and the two boardrooms are now, respectively, the “Stikeman” and the “Elliott” boardrooms. Jim Robb, now the most senior retired partner of the firm, still appears regularly at the Montreal office and is working on the manuscript of a book describing the political implications of the Quebec Act, 1774, which should, given his long-time interest in matters political, provide some fascinating insights on the subject once it is completed and published. The firm also lost one of the best insolvency lawyers in the country in 2012,when Sean Dunphy, who had begun by taking a leave of absence from the firm, announced that he would not be returning and retired as a partner of the firm in order to pursue other interests. Dunphy began his connection with the firm in 1983 as an articling student, became a litigation associate in 1985, a partner in 1992, and by 2004 was co-head of the insolvency and restructuring group. Among many major files on which he worked, Dunphy played an integral role in the complex litigation involving the Air Canada and Abitibi restructurings. He had also, while a member of the partnership board, played an important part in causing the firm to rethink how mandates should be selected, how leverage should be applied, and what new methods used to increase the financial returns on the firm’s activities. This was capped by presentation of a provocative “Reach

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for the Top” challenge at the firm’s annual meeting in 1997. We fully expect that he will be equally successful in whatever he decides in the future. On May 28, 2012 Paul Collins returned from a two-year term as senior deputy commissioner with the Competition Bureau Mergers Branch to head of the competition and foreign investment group of the firm. He resumed his practice in Toronto, which involved transactional and general compliance advice, including advice on the Investment Canada Act as well as marketing and advertising law. While at the Competition Bureau, his contributions included the advancement of significant regulatory and public policy developments. He played a key role in the review of major and high-profile corporate transactions. His return was appreciated in particular by Lawson Hunter, who had agreed to step in as interim head of the competition and foreign investment group in Collins’ absence. Hunter was himself a former head of the federal competition regulator and will continue as counsel to the firm advising on many of the group’s transactions. t h e r e ’ s m o r e t o l i f e t h a n l aw Snowbirds Toronto is often mocked for having had to call in the Canadian Army for emergency assistance due to a heavy snowfall. (Montrealers would have characterized it as a light dusting of snow.) In 2008, the Partnership Board was meeting in Toronto. A snowstorm was predicted and Toronto, not unlike La Guardia airport in New York, is likely to close the airport at the first sign of a snowflake within a hundred kilometres. Kip Cobbett, Pierre Raymond, Suzanne Côté, and John Leopold were attending the meeting and all needed to be sure they were in Montreal the following day. They decided they had better beat the storm and changed their reservations for an earlier flight. While in the taxi on the way to Pearson Airport, they learned that the airport had (predictably) been closed. They returned to the Royal York Hotel, went across the street to Union Station, and got train tickets back to Montreal. Just as they were getting on the train, they were advised that there had been a derailment and the train could not get through. Desperate, they rented a car and were told that if they could get to Oshawa, they could get on the train, since that was the other side of the derailment. They rented a huge suv and Cobbett was designated as the driver. Adding to their misfortune, the suv had no snow tires. Cobbett came away from the experience with a much better understanding of the concept of infinity. It took six hours to get from downtown Toronto to Oshawa, during which he had the benefit of a constant stream of instructions and advice from three omniscient backseat drivers.

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Burritos, Bands, and Corn on the Cobb Dana Porter reports that in 2008 or 2009 one of the corporate partners in the Toronto office apparently did some work for a business that made and sold burritos in the bar district downtown. The story goes that, instead of getting our bill paid in cash, we settled for getting paid in kind – a truckload of burritos each Friday at noon. The Friday Burrito lunches became a tradition, and the lineups of lawyers waiting for the arrival of the burrito truck got progressively longer as the weeks went by, causing a bit of grumbling. Susie Freeman, the long- suffering director of boardroom services, was on the receiving end of most of the complaints. Larry Cobb, the resident practical joker, reputedly worthy of his own chapter, thought this was a great opportunity to stir the pot. He fabricated a fictitious e-mail exchange in which Freeman was ostensibly trying to implement a complicated wristband policy to deal with the burrito debacle. Cobb then broadcast this to everyone in the Toronto office (except Freeman). Friday March 27, 2009 To: Susie Freeman From: Larry Cobb Subject: Friday Burrito lunches Susie, You may not be aware but the Friday burrito lunch is completely over-subscribed, with lots of people griping about the supply and missing out on the halibut. Not sure what can be done but just wanted to bring it to your attention. Thanks and sorry to bother you. Larry Wednesday April 1, 2009 From: Susie Freeman To: Larry Cobb Subject: Friday Burrito lunches Thanks for letting me know. I am aware that there is an issue but not sure what we can do about it as the supplier (…) is maxed out and it’s become a bit of a logistical nightmare. We have decided that we will move next week to a wristband system, where people have to collect a wristband from 53 reception beginning at 8 am on Fridays. Only people with a wristband will get a burrito and the wristbands will be colour-coded (brown for steak, coral for halibut, etc.). It’s a little drastic but should solve the problem. The system will start on Friday the 10th of April.

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We’d do it this week but want to give people enough notice and to order the wristbands. Cheers, S. Friday April 3, 2009 From: Susie Freeman To: Larry Cobb Cc: Jean McLeod Subject: Friday Burrito lunches As a follow-up, we have now settled on the colours for the wristbands: Steak – Brown Halibut – Coral Veggie – Green Shrimp – Coral Chicken – Light yellow (so as not to get confused with the Lance Armstrong bracelets) Bean – Black Cheers, S. 10 minutes later, Cobb sent the following message (to which the chain of fictitious messages was attached): Friday April 3, 2009 From: Larry Cobb To: TOR Lawyers; TOR 2008-2009 Articling Students Cc: Susie Freeman; Jean McLeod Subject: Re: Friday Burrito lunches Coincidentally, just received this from Susie. By the next morning, Susie had dozens of articling students in her office asking for wristbands. Middle East Belly Dancing Peter Castiel is one of the partners working on business development in the Middle East. As he notes, there is no country too remote if it can be a source of inbound business into Canada. The Cirque de Soleil transaction, in which we had represented the government of Dubai, had been an eyeopener regarding the potential for sovereign wealth funds to look to Canadian opportunities, so it was important to be sure that we were present

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and were known to the decision-makers in the area. On a recent trip, Castiel and Leopold were going on an extensive trip to the area and Raymond decided to accompany them. This was an important addition to the team, since having the chair of the firm at the meetings demonstrated the importance of the mission and the seriousness with which the firm regarded the contacts they were making. It was an exceedingly hectic period of some two weeks, with many meetings. On schedules of this nature, one of the challenges is to remain fresh enough to remember whether you are saying something you have already said or think you may have said in a different meeting. One Saturday, after the workweek had been completed, the three of them each rented a 4 x 4 (and drivers) and headed out to the sand dunes. Castiel, the youngest of the three, was terrified at the risks the other two were taking and was astonished to find that they seemed oblivious to them, relishing the dangers. They survived the day and went to a village of one of the nomadic tribes and, along with other guests, were treated to a dinner of traditional foods. No meal of this nature appears to be regarded as complete without a comely belly dancer, who duly appeared and performed the traditional dances. She then needed someone from the crowd to dance with her and selected Raymond for the purpose. No doubt entertainers of this nature can spot a chairman at a thousand metres. So, with hundreds watching and encouraging, Raymond made it all too clear that belly dancing, despite his cheerful efforts to demonstrate the contrary, is not at the very top of his skill sets. It is rumoured that there are photographs of the occasion and that the long-term financial security of the possessor is largely assured. Toronto Holiday Party – “The After-Party” (2001–06) By the time Michael Burkett started articling at the firm in 2001, it had become an annual Stikeman Elliott Holiday Party tradition in Toronto for a large group of students, associates, partners, and staff to head, immediately following last call at the Stikeman party, to the Matador Club. The Matador was a Toronto institution. An after-hours club (only open from 2.a.m. to 5 a.m. on Friday and Saturday nights) located in the city’s westend, the Matador featured some of the best live music in the city. The crowd at the Matador was always, to put it mildly, eclectic and the Stikeman crew, decked out in suits, cocktail dresses, and the odd tuxedo, did not exactly blend in. Regardless, we made it our home one night a year and always had a great time. Strictly speaking (and, more important, legally speaking) the Matador was not a “licensed establishment,” serving only water, Pepsi, and Ginger Ale in large plastic cups. That said, it was one of the city’s worst-kept secrets that the woman sitting in the back corner

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of the main room sold small bottles of rye and rum out of the large hockey bag sitting at her feet. Despite the illegal sale of adult beverages, the Matador and Toronto’s finest seemed to have reached an understanding (the nature of which we disclaim all knowledge) and for years the Matador operated week-in, week-out without interference from the authorities. Unfortunately, this hands-off approach came to an abrupt end during the very early morning hours of November 29, 2003, when Toronto police staged a massive raid on the Matador. As police came crashing through the front door in their bright yellow gear, the crew from Stikeman Elliott (which may or may not have included the firm’s chair and a number of other high-profile partners – bringing to mind the classic response developed for use by witnesses in the Watergate investigation of “I cannot recall at this time …”) leapt to their feet and joined the mad scramble of patrons, bartenders, and musicians racing for the emergency exits and freedom. We emerged as a group into a snowstorm and a sea of red flashing police lights (Burkett believes he counted twelve police cars and several paddy wagons). Fleeing up Dovercourt Road, north from College Street, everyone dove into waiting taxicabs and made their escape. No less than two tuxedo jackets were left behind. Needless to say, after that bit of excitement, the Matador was eliminated as a potential after-party venue for firm personnel. Fast forward one year. About ninety minutes prior to the start of the 2004 firm Holiday Party, a small group of lawyers gathered at a downtown bar for some pre-party appetizers (pre-party drinks are always referred to as appetizers). During the course of conversation, Burkett made the mistake of mentioning that his wife was out of town for the weekend. The table fell silent. Ron Ferguson stood, looked at him (with a slightly wild look in his eyes) and spoke: “Guy, you are hosting the after party.” The die was cast. Before he could decline this dubious honour, everyone around the table had reached into their pockets to pool their money for a run to the grocery and liquor stores for party supplies. Aaron Fransen, the most junior person at the table, volunteered (or was volunteered) to make the supply run. He grabbed Burkett’s car keys and raced out to stock the house for the party (Burkett found out several years later that Fransen did not really know how to drive a manual transmission but still somehow managed to complete the mission). Word got out and at last call Burkett raced north up Yonge Street to his house (located in a very quiet family neighbourhood). He expected perhaps fifteen to twenty people to show up. He was wrong. Taxicabs began unloading passengers in front of the house. It was 2 a.m. and hordes of people began to stream into his house. Dave Byers, Anne Ristic, Ed Waitzer, Dee Rajpal, Larry Cobb, the entire articling student group, Ron Ferguson, D’Arcy Nordick, Stewart Sutcliffe, the guys from the mailroom, most of the corporate clerks, the crew from

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tech support, the Stikeman Elliott lawyers visiting from Montreal … and still they kept coming. This was a very small house and by 2:30 a.m. it was packed to the rafters and still people kept arriving. Nordick, Dean Koumanakos, and Ferguson jumped up onto a coffee table and belted out Bon Jovi’s “Living on a Prayer.” At 5 a.m. Burkett looked out the front door, to see at least thirty Diamond taxicabs lined up down the street, waiting to take people home. He snuck off (unverified self-description) to bed at close to 6 a.m. with a few stragglers still enjoying the music. One of the guys from the mailroom was sleeping on the couch curled up next to the family dog and an articling student was sleeping in a bathtub. The party had been epic and a new tradition was born. Thanks to a very understanding wife and some great neighbours, he hosted the annual after-party for the next three years, until the birth of his son, at which point the house was declared a no-fly zone for all-night parties. Sometime in the summer of 2007, Burkett was taking a Diamond cab home from the office (unverified self-description) very late one night. He gave the driver his address and, as they got closer to the house, started to give the driver directions. The driver turned around and told him not to worry, he knew exactly where he lived. Burkett asked him how he could possibly know that. With a laugh he replied, “Because you throw that huge party every year. All the cab drivers know about it.” St. Patrick’s Day 2006 – BlackBerries Are Good for More Than Just Work … Early on March 17, 2006 a small group of lawyers at the Toronto office decided to head over for a drink at the Irish Embassy. The politically astute reader will know that Ireland does not have an embassy in Toronto. We speak, therefore, of a different Irish institution. Nordick, David Muha, Trevor McGowan (now with cra), Jon Moncrieff, and Tim McCormick braved the morning chill and waited to get into the Irish Embassy … at 11 a.m. Most of the seats were reserved, so they huddled up at the far end of the bar and ordered one round of Guinness. It tasted pretty good, Nordick recalls. Shortly after the first round was consumed, the second round was bought. And shortly after the second, a quick third … By then it was probably 11:45 and a news crew from Citytv came in with cameras on. After filming our group at the corner of the bar, Moncrieff was asked for a comment and he deferred to his “boss,” at which point Nordick gladly told the camera that he was “normally one-quarter Irish and three-quarters lazy, except on St Patty’s day, when he was all Irish.” Not thinking much of it, a fourth and probably fifth round of Guinness was ordered. Shortly after 12:30, which was the time the report was initially shown on Citytv, BlackBerries started to light up, asking where they were, since

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someone had seen Nordick’s interview and the rest of the group on the news. Mihkel Voore, being ahead of the technology curve, forwarded Nordick an e-mail containing the Citytv webpage, which had the story as its lead. All good times to this point. Nordick had to retreat to the office to do a student cle and returned quickly, possibly before the cle was actually completed, with a couple of others. By this time, the bar was packed. However, through the magic of BlackBerries, everyone was able to communicate with each other (not unlike rioting students) and get by the bouncers at the door with stories of, “my friends are in there at the corner of the bar,” which seemed to work time and time again. Soon, probably twenty people had gathered (Maurice Swan, Stacey Hoisak, Mike Burkett, Sutcliffe, and Kate Menear amongst them) using the same story, based on the e-mail communication that the BlackBerries facilitated! Late in the afternoon, one of the senior people at Air Canada e-mailed Nordick with a very serious “subject” line. Nordick looked somewhat concerned, until he read the message that was a “scolding” for being drunk in the middle of the afternoon! A senior vice president at Air Canada had seen the news story in Ottawa on the Citytv affiliate, recognized him immediately, and found his own entertainment from giving Nordick a hard time! As the afternoon turned into night, some thirty-five to forty Stikeman Elliott Toronto people made their way through the door (and around the bouncer) at the Irish Embassy by waving their BlackBerries and pointing to their friends in the corner. Many in the Toronto office still talk about that St Patrick’s Day for both the spontaneity of the party and the news coverage at noon! The Burger-Eating Contest Through hockey connections, Nordick had met some of the senior people at the Atlantic law firm McInnis Cooper. Hearing that they were coming into town to do some marketing, he suggested they bring along some of their up-and-coming associates to meet us and make some connections. McInnis Cooper ended up bringing well over a dozen lawyers who, after a day of marketing, came to see us, tired, but looking for some fun. To meet and entertain the visiting group, Nordick recruited a number of partners and associates from the Toronto office, including Burkett, McCormick, Rhoda Aylward, Melissa Schyven, Moncrieff, Dan Ratushny, Amanda Linett, Mike Devereux, and Jeremy Ehrlich. After some small talk in the Main Boardroom, they all walked over to a rather small but trendy restaurant called Trevor’s Kitchen. Trevor greeted them at the door and took them to the main dining area, where the group took up almost half of the restaurant.

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The food was fantastic, the conversation great, but the wine was the best part of all. When the dessert menu came out, one young female lawyer from McInnis Cooper suggested that, rather than dessert, she would gladly take another order of the small hamburgers, affectionately known as “sliders,” that had been served as appetizers. This prompted Devereux to question just how many of the sliders this lawyer could eat in two minutes. Six was the answer. Ehrlich piped up and said he could eat eight and, with that, the game was on. Burkett and Nordick quickly jumped into action to set the rules and the wager. To avoid wasted food, it would simply be a lawyer-to-lawyer challenge to determine who could eat two hamburgers. As for the wager, what began as a “gentlemen’s bet” quickly turned to real money and in no time at all, it was settled that each contestant had to put up $200, winner take all. In these credit card days, neither contestant had any cash on hand, but for the sake of seeing two professionals eat burgers in what felt like a challenge to the death, easy credit was made available by others gathered around the tables. As the ad hoc organizers, Burkett and Nordick soon realized they had two problems to overcome. The boisterous energy of the situation had turned Trevor’s Kitchen into the equivalent of a loud, brash boxing match, which they were sure was not making Trevor happy. Secondly, they also realized that the remaining guests at Trevor’s Kitchen were likely being annoyed by all of the silliness surrounding a burger-eating contest. The second concern took care of the first when they realized that the remaining tables were filled with delegates to a physiotherapy convention. The group was also enjoying some great wine and, without even being prompted, put forward their 110-pound female candidate and the requisite $200 entry fee. Trevor, noting that everyone present was in on the contest, yelled back to the kitchen to hurry up with the hamburgers – it was game time. Picture fifty people crowded around three individuals as hamburgers are placed before them. Also picture the fact that two of the “foodbatants” are slight, young, female professionals who, together, weighed less than Ehrlich. Finally, picture Ehrlich knowing full well he is going to lose. With the crowd counting down 3-2-1, the meat, toppings, and buns began to fly. Nordick does not know if studying physiotherapy involves learning how to adjust your throat to be able to swallow, in one shot, an entire hamburger, but something extraordinary happened that day, when a petite physiotherapist from parts unknown ate two hamburgers in under thirty seconds, scooped up $400, and left Jeremy and the young associate from MC with mouths full of unfinished burger, ious to pay, and the humiliation of hearing Devereux explain, with absolute confidence, how he would have attacked the burgers differently for the win, had he been in the contest. Trevor and his staff earned a very good tip that evening.

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Tribathalon Firm retreats usually result in some good stories, amusing events, and, occasionally, legends. Rarely, however, does a firm retreat result in the invention of a new “sport.” The 2011 retreat in South Beach, Florida, was different. It was Saturday, the last full day of the retreat, and after two days of fun, many were talking about taking it easy that day and night due to the early flights back home on Sunday morning. It may have been the sun and lack of a hat, but more likely a tropically inspired libation, but Nordick decided to tell a small group about a funny night that had occurred in Miami a month earlier, when he and McCormick had attended a board meeting for one of Nordick’s clients. This client had just completed a merger with an Australian company and, after a long board dinner, some of the Aussies who had taken up management positions with the client decided to enjoy one final poolside beer, which ended up being many final beers, and culminated in the Aussies going for a very late night swim in the ocean, a splash in the pool, and a dip in the hot tub. In the course of acknowledging that the two of them might have participated in this “triathalon of wet,” Ian Putnam piped up to say that it should be called the Tribathalon. This was a decidedly catchy term that, until now, Nordick has claimed as his own … Like all good ideas, it is one thing to invent something, but quite another to take it to a ridiculous level. Later that night, after our firm event, throwing earlier resolve of taking things easy to the winds, a group decided to continue on to a club on the strip in South Beach. Night was turning to morning when Nordick turned to McCormick to say that they should see if there were any participants willing to do another Tribathalon. Rather than simply ask around for volunteers, the trusty BlackBerry allowed him to invite people to meetings simply by sending a calendar invite to their devices. Fueled by a benign feeling of inclusiveness, he decided to send a calendar invite to the entire Toronto office. It was 3 a.m. The invitation was spare to a fault: “Subject: Tribathalon – pool, hot tub, ocean. Time: 4 a.m.” With the invitation sent, he and McCormick began to laugh when “acceptances” to the invite began to pour in on his BlackBerry. This was not a mere five or ten people saying they were up to becoming Stikeman Elliott Tribathletes that night, but more in the range of sixty to seventy. Knowing something big was afoot, they jumped into a cab and headed back to the hotel. By 3:45 a.m., McCormick, Putnam, and Nordick were changed and in the pool. At 4 a.m., like a calling, lawyers began to appear, towels in hand, all heading for the pool like well- lubricated zombies. Koumanakos of the Montreal office was kind enough to show up with three extralarge pizzas and two pitchers of beer. The pizza lasted only seconds. At this late stage, nobody bothered with the beer.

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Within minutes there were upwards of seventy people in the pool. After some good laughs about the situation, it was time to move on to the second stage of this gruelling test of water endurance – the hot tub. Most resort hot tubs accommodate, at best, fifteen people. Getting everyone in for this event was tough, but they had to overcome. Through a delicate dance, everyone managed to get in at some point so they could check the box if and when an official governing body of the Tribathalon ever asked about immersion in all three of the required waters. Finally, the time came for the last test. A dip in the ocean. After everyone took a knee on the boardwalk and some inspirational words were spoken, a flat-out sprint for the ocean was launched. Unbeknownst to anyone (least of all, a collection of lawyers, whose professional skill and intelligence is normally focused entirely on identification of risk) was the fact it was low tide. What might have been a 50-meter dash turned into a 200-meter jog, with the last 199 meters being a brisk walk at best for many. Luckily, everyone who got in the water, in true Stikeman Elliott sportsmanship fashion, stood and clapped for each participant as he or she entered, exhausted but proud, while Howell bequeathed them with their new title: “Anne Ristic – Tribathlete. Marie Garneau – Tribathlete. Larry Cobb – Tribathlete.” And so it went, until some, such as Adrian Lang, realized they had to be on a plane in an hour. The Tribathalon is already in dozens of BlackBerry calendars for the next retreat. Nobody Knows Where I Am It began on a Thursday. Pierre Raymond was vacationing in Europe and called Marc Barbeau in Montreal, saying that he had been meeting with a partner from the Moscow office of Winston Strawn, which had a client who absolutely needed to have a meeting in Europe on the weekend. Could Barbeau make arrangements to be in Europe for the meeting? Transaction lawyers are accustomed to such “must have” meetings on short notice. He said he could, but where in Europe was the meeting? This had not been decided. Who was the client? This was not known, but it was a good client of Winston Strawn, so that aspect should work itself out in due course. On Friday, Barbeau was told that he should book a flight to Paris and get himself a hotel room. On arrival Saturday morning, he went to his hotel, hoping to get instructions regarding the meeting. There was no message from anyone, so he turned on his BlackBerry and spent the morning walking around à la touriste, not knowing where or when or with whom there would be a meeting. In the late afternoon, he got a call from the Winston Strawn partner, who said he had just got in from Moscow. Could they meet at the Winston Strawn partner’s hotel for a coffee? Barbeau duly arrived and the partner

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spent much of the time during the meeting speaking on the telephone, in Russian, with someone who was, apparently, a representative of the client. It transpired that the client was ready for a meeting. The partner asked Barbeau if he could collect his things and be back at the hotel at 8:00 that same evening. He could. When he returned to the hotel with his belongings, the two lawyers were bundled into the back of a Mercedes Benz, taken to a private airport, and ushered on board a private jet. The jet took off and only after some time in the air were they advised that they were headed for Sardinia. Much of the discussion among the other passengers during the flight revolved around who would be on the yacht and who would be in the villa. It was decided that Barbeau and the Winston Strawn partner would be in the villa, which turned out to be splendid. Hors d’oeuvres were served and they looked out over a delightful port filled with yachts. They were informed that the meeting on the following day would be on the yacht at 11:00 a.m. and it became increasingly apparent that the client was likely one of the new Russian billionaires. The yacht was enormous, with crew and servants in conspicuous evidence. Barbeau still had no idea what the deal was and why he, as a Canadian lawyer, was required. In due course, Mr Big arrived, amidst a scene that could only be visualized in a Hollywood movie, accompanied by numerous aides, assistants, and underlings, sat down beside Barbeau and, speaking only in Russian while calling him by the wrong name, proceeded to instruct him on the elements of the deal. Barbeau spoke not a word of Russian. The Winston Strawn partner did his best to try to translate on the fly, without much success. Barbeau had the good sense to appear to listen intently and gave Mr Big no hint that he had not the faintest idea of what was going on. His instructions given, Mr Big got up and left. Everybody in the entourage left as well. Barbeau picked at the food on display. He was entirely by himself. Eventually, he found most of the Russians in the yacht’s theatre, watching a soccer match. They were completely uninterested in him. More than once it occurred to Barbeau that, other than those on the yacht, no one else in the world had any idea where he was. In due course, after the match was finished, he was taken to the airport and, having no further utility to the prospective client, left to make his own arrangements for a commercial flight back to Paris and eventually to Montreal. The deal that they had “discussed” never took place, the Russians being out-bid by another party. the toronto office hockey team and the bunny tournament The Stikeman Elliott Toronto office hockey team may possibly be the greatest law firm hockey team ever. For over twenty years, every Good Friday,

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four national law firms put together a team to play each other but, unlike other law firm tournaments, the Bunny Tournament includes alumni, clients, and other “friends of the firm,” including David McCarthy, Cusinato, Mike Rumball, Michael Burkett, D’Arcy Nordick, Aaron Fransen, and Ron Ferguson in the Toronto office, Dan Ratushny (formerly on the Olympic team, now coaching in Europe – the tournament’s alumni includes many other former professional players), Mark Welton and David Campbell (both at Imax and formerly of Stikemans), and David Allan (formerly of Stikemans and cibc), and numerous others. The trophy is always a life-size chocolate Easter Bunny, so the children of all of the partners and associates are always keen to attend. Stikeman Elliott has managed to win approximately twelve of the last fifteen tournaments. The team has played in some great rinks over the years, from the old sky rink in midtown New York and Central Park to the acc and the Bell Centre. In March of 2012, in New York (with the New York office) the team played against the ny law firms Skaddens Arps and Proskauer Rose. Every office has its share of great stories and amusing incidents – which is hardly surprising with such an impressive collection of extraordinary individuals. The spontaneity and eccentricity of many of the anecdotes is typical of the lateral thinking and creativity of those who make up the firm. The degree of instantaneous buy-in for a tribathalon or an Irish Embassy is an indication of the bonding that has allowed the firm to grow and prosper.

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chapter 8

Big Firm Management

internal organization The management requirements of the metaphoric vessels identified in the first chapter are profoundly different. Each of the firm’s offices has always had its own managing partner and, in the larger offices, a management committee with administrative support. This has continued but, for firm planning purposes, regular partners meetings to make management decisions became too cumbersome to be efficient and were too geographically diffuse to be effective in a rapidly changing environment. Well before this decade began, a more corporate form of governance had been established with the creation of a partnership board elected by the partners and weighted to take into account the relative sizes of the various offices. Acknowledging the shift taking place in the early 2000s, both domestically and internationally, the firm initiated a strategic review and ultimately decided not to pursue the prospect of mergers but to focus instead on being the Canadian law firm most retained for important Canadian m&a, financing, and business litigation mandates. One of the big shifts in approach over the last ten years has been increasing oversight of the strategic plans of each office by the partnership board. Despite this, office-by-office planning remains an important aspect of firm management and there is considerable residual autonomy at the local level. Each office is expected to develop its own strategic plan, including financial modelling covering a period of several years. While these plans tend to be directed at the principal targets of each office and at increasing market share within the geographical areas served by the office, they nevertheless have an important influence on the overall strategic plan of the firm. Each office is acutely aware of internal competition within the firm and likes to be certain that its profitability matches (or exceeds) that of the other offices. Our experience is that this has generally been a positive and encouraging

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benchmarking exercise. The current leadership believes in a healthy competition between the management of the different offices and the resulting pride felt in an office when it matches or exceeds the national levels. Starting in the late 1990s, the accounting firm kpmg developed a benchmarking survey that can be purchased by law firms, originally those in Toronto but now applicable to several other cities, which measures revenues, expenditures, profitability, and many other metrics. Most of the major firms provide data for this purpose. The annual report is issued each spring, in April or May, and each firm is ranked on the various metrics. A participating firm receives information only on its own position or rank for each category of measurement and there is no identification by name of firms that may be ahead or behind the firm receiving the report. Overall, the management team is very satisfied with the rankings thus obtained. This survey has proven to be a valuable tool to help us assess whether we are managing our affairs effectively. Formalized office plans were first used in the 2006–07 period and were refreshed in 2010. The current practice is to have such plans coincide with the three-year terms in office of members of the partnership board. Progress can be measured on an annual or more frequent basis, but many developments require significant gestation periods and there must be sufficient discipline to see the plans through any development period without succumbing to the temptation of abandoning a plan that may not produce instant results. One of the strategic plans was to grow the Calgary office, which opened in its current offices in 2001. Our assessment was that it was underweighted in its marketplace. Perhaps in setting the plan we had relied too much on the early profits generated by the workouts arising from some of the insane natural resource loans made in the 1970s and 1980s. The idea was to invest in the Calgary office and build its size, which meant, in turn, finding the right people to lead the efforts. Despite some setbacks due to the international financial turmoil that began in 2007, the objective of being a leader in that market remains in place. leadership transition Early in the firm’s sixth decade, Ed Waitzer was in his first term as chair. He had been at the Ontario Securities Commission and was effectively re-recruited to come back to the firm as chair. He had decided that he wanted to take a sabbatical year after his term at the osc and our hope was that he would postpone his sabbatical until after a term as chair of the firm. Stransman’s death and Hunter’s departure led the firm to ask him to stay on for a second term, but he had committed himself to an invitation to serve as an advisor to the Securities Commission in Chile and had

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arranged the timing of this appointment to coincide with the end of his first term as chair, not anticipating that he would be called upon to serve a second term. We agreed that the eventual solution would be for him to take a one-year sabbatical in Santiago to honour his previous commitment to the Chileans, which led to several internal developments. The manner in which we operated during that year validated a good part of our management philosophy – the idea that “less is more” with reliance on strong administration and getting the culture right so that our people can be largely self-organizing. Pierre Raymond, from the Montreal office, took over as interim co-chair in 2004 during Waitzer’s absence and eventually became full-time chair in September 2006, the first French Canadian in that position in any major national law firm in Canada. Another measure adopted in 2003, designed to permit Waitzer to have more time to practice and develop business, was the creation of the position of chief operating officer, a position assumed by Kip Cobbett, then the managing partner in Montreal, an arrangement that lasted until September 2009, when Cobbett stepped down as managing partner and was replaced by André Roy. With Raymond acting as a full-time chair, there was less need for a coo and Jean McLeod, gaining increasing confidence and responsibility as the firm’s chief administrative officer, worked closely with Raymond. Cobbett’s role evolved from coo to one of de facto internal counsel, focusing on the intake of mandates and the management of business conflicts of interest, whether actual, perceived, or simply possible “business” conflicts. Moving from the office-by-office governance model to a more corporate form of governance brought its share of order to the management and planning processes, as well as the inherent difficulties of managing representation and transition. In 2003, the firm decided to become a limited liability partnership (llp), in which a partner is not personally liable for any debts, obligations, or liabilities of the llp beyond the assets of the llp itself that arise from any negligent act or omission by another partner or by any other person under the other partner’s direct supervision or control. Partners of an llp are personally liable only for their own actions and omissions, and for the actions and omissions of those they directly supervise or control. The principle was simple enough, but stick-handling the measure through the various law societies, especially in Quebec, proved cumbersome and time-consuming. National practice groups have been established to achieve more integration than would normally occur with separate offices, although they do not operate as such on a daily basis or as profit centres and are not measured for that purpose. They tend to exist to ensure that there is sharing of knowledge and expertise across all offices, as well as best practices. They are also important with respect to our ability to mobilize all of the necessary resources whenever required for major transactions.

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the need for systematization All this said, the bigger the firm, and the more locations in which it operates, the more complex the management process. With five separate offices in Canada, one in New York, one in London, and one in Sydney, it is not surprising that the firm has had to devote considerable thought and resources to ensure that the enterprise as a whole functions efficiently and in compliance with the requirements of the many law societies involved. While there is the occasional grumble from individual lawyers about the “system,” everyone fully understands the need for systematization of many of the processes, which are, when all is said and done, generally a matter of common sense, in addition to assuring proper compliance with applicable laws and regulations. the prime directive: confidentiality Many, perhaps even most, of the complications of big-firm management flow from the fundamental obligation of lawyers to maintain the confidentiality of all information provided by clients and prospective clients in the context of an existing or future representation. Although it may seem intuitive to most lawyers that they not disclose confidential information, their duty goes farther than this and extends to ensuring that confidential information will not be or cannot be disclosed to third parties. The obligation extends not only to the lawyers in the firm but also to its employees and applies not only to information disclosed to us by the client but also to any confidential information, regardless of the source of that information and whether or not it was disclosed on the express basis that it be treated as confidential. The duty to maintain information on a confidential basis continues even after a particular mandate on behalf of a client has been completed, unless the particular information is a matter of public record or the client consents to its disclosure. This is one of the many reasons why it is difficult to write the definitive history of a law firm. In many cases it is inappropriate to disclose even the fact that a particular client has consulted or retained us in connection with a specific matter. Inadvertent Disclosure A particular area of concern is possible inadvertent disclosure of confidential information when communicating by cell phone. There is a tendency, especially when earplugs are used, for the person speaking to speak louder than normal and to be unaware that others may hear. I recall being on a train from Quebec to Montreal, sitting in front of a lawyer (whom I

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did not know) who was communicating by cell phone or BlackBerry. At the end of the trip, when we were getting off the train, I remarked to the lawyer that I now knew far more about the client and the particular proceedings than I should. For lawyers who have business in or who travel to different countries, there are additional concerns that should not be overlooked. There are obvious and well-documented security shortcomings of cell phones and other electronic communication devices. For instance, it is possible to identify the location of anyone using many of these devices. In many secured areas, call phones may not be brought onto the premises. Someone else’s device may also be used to record or photograph information. In many countries, including the United States, border officials have the power to confiscate computers and other devices and examine their contents. In other countries, including China and Russia, travelers are warned that data on computers or communication devices left unattended in offices or hotel rooms is almost certain to be copied. If the systems can be hacked, there is the possibility that unauthorized access could be obtained to the firm’s entire information system. In certain cases, therefore, when travelling, the safest course is to have a special computer for the purpose that contains an absolute minimum of information, including a restricted list of contacts and other information. I lost my BlackBerry during the 2008 Olympic Games in Beijing and, even though there could be no doubt that it belonged to me, given the assigned seating at the event, I knew perfectly well that there was not the slightest possibility that I would ever see it again. I also knew that it would likely be examined to see what access and information could be obtained, so I immediately advised the office of the loss, to enable it to be deactivated. Even within the office, there are many ways to reduce inadvertent or premature disclosure of confidential information. Many of these are largely a matter of habit and organization, which can be as simple as transporting confidential information in sealed envelopes, making certain that confidential information sent to a third party is marked as “Confidential” and is addressed to the person intended to open it, securing or storing all communications to be sent by telecommunications and other written communication systems such as facsimile, e-mail, or extranets, storing documents and other devices containing confidential information in cabinets or drawers, locked if necessary, destroying confidential waste paper by shredding, and having confidential discussions behind closed doors. securities transactions One of the many corollaries to the duty of confidentiality relates to the buying and selling of securities. The nature of the confidential information

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we receive is such that its disclosure, or action taken based upon knowledge of the information, could have an impact on the market value of securities. Information of this nature could be useful to anyone in possession of it, whether within the firm or outside. It is, therefore, a matter of considerable importance, supervised by the firm’s executive committee, that there be no trading of securities by members of the firm while the firm is in possession of material undisclosed information (insider trading) and that there be no informing of others of material undisclosed information (tipping). While both activities are illegal, the firm goes beyond this and requires that any time a member proposes to trade securities of a public company (and even certain specified private companies), he or she must provide notice and obtain preclearance in accordance with the firm’s written policy. We maintain a “restricted list” containing the names of all public companies by whom we are retained and those that may be involved in matters in which we are retained. Even if civil or criminal liability were not a concern, the firm’s reputation could be seriously damaged by insider trading, tipping, or even any allegations of such activity. Part of the catechism of the firm, therefore, involves making sure that everyone understands that, in order to maintain clients’ trust in the firm and confidence in its ethical standards, it is essential that all undisclosed material information be kept confidential. The conduct of our personnel should at no time give rise, or credence, to any suspicion, whether inside or outside the firm, that information has been improperly disclosed or used. Those who are part of the firm understand that any appearance of impropriety (or lack of care) in the use of confidential information, whether inadvertent or not, can irrevocably damage the firm’s reputation or bring into question the firm’s judgment, as well as permanently damage the career of or embarrass the individual involved. information technology system Yet another corollary of the duty of confidentiality can be found in the firm’s policy relating to the information technology system, which includes the network, hardware (such as computers, printers, BlackBerries), software, and data. This policy is binding on all members of the firm, whether professional or staff. Its primary objective is to ensure that documents containing sensitive information are properly secured. This includes, where necessary, restricting access only to those within the firm who work directly on a particular matter. The security of the system has recently been enhanced to ensure that documents transmitted by us to third parties are stripped of metadata that might provide information to a recipient (such as when and by whom a document was created, who may have amended it, and so forth) and that any transportable device, such as a flash drive, is

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encrypted. The policy also includes the usual best-practices prohibitions regarding use of the system for obscene or sexually explicit material, the introduction of any materials that might destabilize the system, removing or copying data without prior authorization, and downloading unlicensed or pirated copies of software, music, or video. Standard as well is a reminder that there is no personal right of privacy to any information or files maintained in or transmitted through the information technology system, voice-mail, e-mail, or any other technical resources. The firm is entitled to override any applicable passwords for purposes of inspecting a firm member’s computerized files or transmissions, voicemail, e-mail, or any other media in which information is stored or transmitted. Members are advised that the system automatically records the history of all use of the system (e.g., Internet sites visited) and, in some cases, automatically records and stores pictures and attachments. There is constant monitoring of document access through our document management system for purposes of detecting any unauthorized access. All of this is intended not to interfere with any personal activities of firm personnel but to make it clearly understood that the information technology system is a firm system, to be used for purposes of discharging its professional responsibilities to clients. It is not a personal system for personal use. social media Love it or hate it, the ubiquitous, and occasionally overwhelming, presence of social media is a current fact of life. Law firms, like every other element of society, must now deal with it. The phenomenon is expanding so rapidly that it all but precludes a comprehensive definition of what is involved. In general, however, social media involves the posting of ideas, opinions, images, and various other forms of information (both personal and professional) to an online or electronic forum designed to be viewed by multiple Internet users. Typically, social media forums encourage discussion and other forms of interaction among their members and visitors. While the form of social media constantly changes, it includes social networking sites (such as Facebook and LinkedIn), video sharing sites (such as YouTube), blogs (including micro-blogs such as Twitter), podcasts, wikis, and message boards. There are many others already in use and there will inevitably be others in future. Social media are bringing about massive shifts in how many businesses now carry on their activities. Standard measurements such as “cost per thousand” (cpm) in audience impressions are rapidly becoming obsolete, despite the fact that it is still all but impossible to determine the effect and reach of viral messaging. New techniques are aimed not at merely reach-

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ing an audience but at engaging it and encouraging direct dialogue. Ensuring copyright and trademark protection is increasingly difficult as consumers discuss products and services and transmission of data is no longer controllable. Social media will likely play a significant and, one hopes, positive role in the future growth of individual practices and in the collective success of the firm. That said, given the broad reach of social media and the permanence and almost limitless potential distribution of social media postings, a number of serious risks can arise where social media are not used responsibly. Such risks continue to evolve but include damage to the firm’s reputation, possible violation of professional conduct rules, damages related to negligence, and other potential claims against the firm and its members. In order to help minimize the associated risks and to protect lawyers, the firm, and the firm’s reputation, we have developed a social media and networking policy, with related guidelines. Not surprisingly, they incorporate many other aspects of our professional conduct, stemming from the fundamental responsibilities of confidentiality and professional comportment in relation to clients. They apply to any participation in online professional social media sites and to any other social media activity in which someone may be identified as a member of the firm, including by use of a firm e-mail address (which might occur, for example, when registering or creating a personal profile) or to any social media activity using a firm computer, laptop, BlackBerry, or any other means that might allow the activity to be traced back to the firm’s Internet domain. The failure in system security experienced by LinkedIn in 2012 provides an example of risks that abound in the digital age. What one posts or authorizes others to post is, of course, ultimately the responsibility of the member of the firm. The firm’s guidelines are designed simply to ensure that appropriate thought is given to the content before it is posted. As many have discovered to their horror, once the content is posted, it is impossible to retrieve – there is no “unsend” key. At a professional level, rules of professional conduct and appropriate levels of civility must be observed, including the fundamental duty of confidentiality. Members must be careful not to give legal advice or do anything that might create a solicitor-client relationship, or that could be expected to result in the assertion by another party that the lawyer or the firm may have entered into such a relationship with them. Over and above that, given the global reach of the Internet, special care must be taken not to do anything that might be construed as practicing law in, or providing legal advice with respect to, a jurisdiction in which the lawyer is not qualified to practice.

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duties to clients re-examined In 2002, the Supreme Court of Canada issued an important restatement of the scope of the duty of loyalty owed by a lawyer to his or her client.1 This decision reminded lawyers that the duty of loyalty is not confined to circumstances described in its earlier judgment of MacDonald Estate v. Martin,2 where the focus had been on confidential information and the risk of its misuse. The duty of loyalty defined in Neil is fiduciary in nature, which prevents a lawyer from acting in situations where the interests of one client are adverse to other interests, either those of another client or those of the lawyer and whether or not confidential information is involved. The general rule, as stated in Neil, is that a lawyer may not represent a client whose interests are directly adverse to the immediate interests of another current client, even if the two mandates are unrelated, unless each client gives informed consent, and the lawyer can represent each client without adversely affecting the other. Acting for a new client who is adverse in interest to a former client can also be problematic. While Neil dealt with obvious conflicts in a small firm, the decision nevertheless has significant consequences for large, national law firms, where conflicts may be more likely to arise and where the so-called “bright line” test in Neil may be more difficult to apply. Many other cases that have referred to Neil underscore the difficulty of identifying where a solicitor-client relationship exists and where client matters are both related and adverse in interest. In every case, the analysis will be highly fact-specific and the outcome not always easy to determine. We know for certain, however, that the size of a firm and the complexity of its client relationships will not insulate large law firms from their obligations to represent client interests without compromise. Because of the necessary analysis of the facts in each case, jurisprudence since Neil has been somewhat ad hoc. Our firm has also been involved in decisions relating to mandates. The first case was a decision of a ruling panel of Market Regulation Services Inc.,3 where the firm was disqualified from acting for a client that challenged the jurisdiction of Market Regulation Services Inc. The firm was found to owe a duty to the company as a former client because it had provided advice to the Toronto Stock Exchange on the creation of Market Regulation Services Inc. and could not later attack it with respect to matters that were at the heart of the firm’s original advice. The ruling was sub-

1 R. v. Neil [2002] 3 S.C.R. 631. 2 MacDonald Estate v. Martin [1993] S.C.R. 1235. 3 In the Matter of the Universal Market Integrity Rules 27/270 SCD (July 13, 2004).

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sequently upheld by the Ontario Securities Commission, which concluded that solicitor-client duties should apply on the particular facts of the case, whether or not Market Regulation Services Inc. was technically a former client of the firm. It applied the Neil principles in a very broad manner. In another case,4 the firm acted for gmp Securities, the lead agent in a proposed equity-financing transaction involving certain non-core assets of Wheaton River Minerals. While acting for gmp on this matter, and without gmp‘s knowledge, the firm agreed to act for Coeur d’Alene Mines in its takeover bid (initially a friendly approach, but subsequently hostile) for Wheaton. Madam Justice Hoy of the Ontario Superior Court of Justice found that the firm had breached its duty to gmp, following the reasoning in Neil. More problematically, however, Hoy J. went on to hold that the firm owed a “limited duty” to gmp‘s client (Wheaton) to the extent that the interests of its client (gmp) and gmp‘s client (Wheaton) were consistent. The implications of the latter duty were not fleshed out, since the issue was relevant only to the matter of costs in light of the finding of a breach of a Neil duty to gmp. It is difficult at this stage to generalize from the post-Neil jurisprudence, but it seems fair to observe that the courts tend to expand, rather than limit, the scope of a lawyer’s duty to clients. At a practical level, it means that the firm must be even more careful when conducting conflict searches and reviews before accepting a new client or even a new matter from an existing client. Potential Bad Guys The Office of the Superintendent of Financial Institutions (osfi) publishes two types of lists of entities and individuals, both of which the firm includes in its conflicts-check database. The first type includes lists of names subject to the regulations establishing a list of entities under subsection 83.05(1) of the Criminal Code or the United Nations Suppression of Terrorism resolutions. Lists of this type have been developed by the Department of Foreign Affairs and International Trade and modified by the addition of names provided by the Department of the Solicitor General. The second type is a list of entities that osfi believes may be of concern to the business community and the public. None of the named entities is regulated by the osfi or licensed under Canadian Federal Financial Institutions legislation. The names, however, are often similar to legitimate entities that are so regulated. If a name being checked in a conflicts check is the same as or similar to a name on any of these lists, the firm’s conflicts coordinator will advise the designated partner responsible for clearing the

4 GMP Securities Ltd. v. Stikeman Elliott LLP [2004] 71 OR 3d (461).

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name. If the partner gives clearance, there will be no reference to the conflict in the report received by the lawyer wishing to open a file. If the name raises a concern, the designated partner will contact the lawyer. If clearance is not given, the file may not be opened. Conflicts and Ethical Walls Conflicts of interest can arise in a large number of situations and, as they are viewed with increasing seriousness by the courts and the law societies of the provinces in which we have offices, the failure to identify and deal with conflicts of interest can lead to the loss of a client, disciplinary sanctions by the law society, and even civil liability. The firm has always focused on taking all measures necessary to identify potential conflicts of interest at the earliest opportunity. Not long after the Neil decision was released, the whole legal community was mobilized to try to determine the full and practical implications of the statements by the Supreme Court of Canada. The Canadian Bar Association established a task force on the subject and Kip Cobbett was involved in its deliberations. Conflict situations can also be “imported” into the firm as a result of a lateral hire, so it is important to go through the same exercise to determine any potential conflicts of interest prior to that person commencing work at the firm. Outright conflicts of interest are usually fairly easy to identify. The extended search involves looking for potential conflicts of interest, which often means trying to identify previously opened files where we act or have acted adverse in interest to a party that we now wish to represent, or where we act or have acted for a party whom we now want to act against, or which might otherwise place us in a conflict of interest. Ethical walls have proven to be quite effective and are increasingly much easier to operate as a result of the integration of all of the firm’s computerbased systems and information. In early 2012 a further step to assist in the identification of potential conflicts was put in place, whereby applications to open files are handled electronically. The process now involves an automatic conflicts check as an integral part of the initial file-opening exercise. The system, appropriately enough, is known as flow and all lawyers and secretaries receive appropriate training in how it operates and how to manage the opening of a file. There are currently a significant number of ethical walls in place, most of them resulting from new client conflicts. There are other types of conflicts within our existing client base and also a number of other walls that result from lateral hires. Given the increase in this volume and with the new “luxury” of having our computer system programmed to keep track of the required wall acknowledgments and related details, we have been able to free-up time for another project, namely looking over the current

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roster of walls to see whether there are changes in circumstances that will permit an existing wall to be dismantled. competitive bids Clients and potential clients are making increased use of competitive bids. This is particularly true for many of the mandates coming from outside Canada but is also becoming more common for domestic matters. In most circumstances, the process is fairly straightforward and, building on the expertise gained from our work abroad, the firm is quite capable of responding to such situations. The principal complicating feature of competitive bids arises from the nature of the firm, its expertise, and its reputation. This occurs when lawyers in the firm are approached to act on separate mandates with respect to the same competitive bidding processes, which may be auctions, tenders, or requests for proposals. Where competing proposals are considered for selection by the originator of the process (including proposals to buy, build, or finance a company or project), we have developed a policy to attempt to deal with the potential business and conflict aspects. The scope of the policy extends not only to situations where we are approached to act directly for two or more bidders but also to situations where we would have indirect involvement on behalf of one or more other participants in the bid process (such as representing the bank or other financial backer of a bidder) or representing an advisor to a bidder in respect to a bid. Obviously we would not represent a bidder and the target in the same competitive bid process. In addition, when involving other lawyers in the firm, particularly in specialized areas such as tax, pensions, real estate, employment, and competition, the lawyer must do so in a way that will allow ethical walls to be established. This means selecting a file team and immediately establishing a one-way ethical wall to screen lawyers representing the original client against tainting non-involved lawyers. This preliminary ethical wall will be superseded by a conventional ethical wall identifying the relevant teams if and when one or more competing bidders may also retain us. Finally, given the nature of the bidding process (such as a public company in play, a privately controlled auction, or a court-supervised sale process), the prospects for challenges to the process by the client, the possibility of the client’s non-compliance with the rules of the process, and possible challenges by the party conducting the process or others with respect to the firm’s involvement on behalf of multiple bidders, clients must understand that in such circumstances our ability to launch court irregularity challenges will necessarily be limited by our representation of other bidders. We could not, for example, make a submission to the Competition

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Bureau alleging that another client’s bid would result in impermissible industry concentration. Since the underlying purpose of these internal rules is to avoid problems, the default rule is that under no circumstances should anyone accept a mandate to act in respect of any bidding process without first consulting the managing partner of the office and a member of the professional and ethics committee. c h o o s i n g m a n dat e s Choice of mandates is an increasingly complex aspect of the practice law in a large firm. The firm is generally committed to seeking and taking on the highest quality work. The quality assessment of a particular mandate is normally made by the lawyer opening the file. We have, however, established a firm-wide procedure to deal with any possible quality concerns. retainer and termination letters Retainer letters have proven to be very helpful, to the point that use of them is now an important part of our standard procedures. In the first place, they provide a clear understanding of the mandate that has been undertaken. In addition, they establish certainty – on both sides of the letter – regarding the identity of our client. In a classic case, for example, we act for a private company, not its shareholders, which helps to avoid possible allegations of conflict of interest at some time in the future. In many circumstances as well, it is important to identify whether or not we are expected to provide specialized services (such as tax) in connection with a transaction. A clear outline of the services included in the mandate helps to avoid allegations or misunderstandings in future about the scope of our retainer. When we are acting in a limited mandate, we need to clarify with the client, through an informed consent or other terms in the engagement letter, that we may, in the future, act contrary to that client’s interests. This clarification is critical in light of the rule enunciated in the Neil case that, absent consent, we cannot act contrary to the interests of firm clients, even on non-related matters. Finally, since there are business aspects inherent in all of this, an understanding of the basis upon which our fees will be calculated will avoid future misunderstandings. The same overall concerns suggest use of termination letters. Where we have acted in a limited way for a client and the work is completed, we should clearly document the end of the lawyer-client relationship. This has become necessary in order to avoid the risk that minor administrative matters, such as unclosed files, accounts that have not been rendered or paid in full, and so forth, may unnecessarily prolong our retainer and our duty

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of client loyalty, thereby potentially preventing us from accepting future mandates that may be unrelated, but adverse in interest. Much of the impetus in this direction arises from the 2007 decision of the Supreme Court of Canada in Strother v. 3464920 Canada Inc.5 In this case there had been a written retainer that prevented the law firm involved from acting for a business competitor of the complainant, who was in the business of promoting motion picture film tax shelters. The written retainer had come to an end, but an undocumented relationship continued, whereby the client sought and was given legal advice on an ad hoc basis. As a result, the lawyer’s duty of loyalty, which is owed to a current client, also continued to apply. Writing for the majority of the Court, Binnie J. stated that the source of the duty was not the retainer itself but all the circumstances (including the retainer) that created a relationship of trust and confidence, from which flowed obligations and transparency. Obligations owed to the complainant might well go beyond what the parties had expressly bargained for. The majority of the Court held: When a lawyer is retained by client, the scope of the retainer is governed by the contract. It is for the parties to determine how many, or how few, services the lawyer is to perform, and other contractual terms of the engagement. The solicitor/client relationship thus created is overlaid with certain fiduciary responsibilities, which are imposed as a matter of law. The risk for lawyers lies in failing to document the retainer. The warning of the majority of the Supreme Court was expressed as follows: Where a retainer has not been reduced to writing … and no exclusions are agreed upon … the scope of the retainer may be unclear. The Court should not in such a case strain to resolve the ambiguities in favour of the lawyer over the client. Both the majority and the dissent agreed that duration of the solicitorclient relationship and, with it, the duty of loyalty owed to a current client, may be specifically limited so as to end when the mandate is completed. The fact that the majority and minority in Strother reached divergent conclusions as to the scope the lawyers’ obligations while the mandate existed, suggests, however, that extreme care must be taken in defining and documenting the limits of the retainer and of properly bringing it to a close. 5 Strother v. 3464920 Canada Inc. [2007] SCC 24.

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corporate directorships A sign of the evolving times is that the firm’s policy regarding corporate directorships has undergone a 180-degree change, from active encouragement to accepting such appointments to active discouragement. One concern is that when things go wrong, and litigants are looking for people to sue, lawyers on corporate boards may be seen to have deep pockets and, apart from their individual net worth, if some connection, however spurious, can be asserted to the effect that the director was representing the firm, the perceived pockets become even deeper and the firm itself could be drawn into expensive and protracted litigation. The other concern, more a business consideration, especially for a firm like ours that does a great deal of transactional work, is that a directorship may lead to conflicts that could prevent us from acting in particular transactions, such as acquisitions. Instead of becoming directors, partners are now urged to focus on becoming trusted advisors of their clients. The discouragement regarding directorships does not generally apply to charitable and not-for-profit boards. Until the series of corporate governance scandals, including Enron, occurred, corporate directorships were not unlike honorary degrees granted by corporations and directors were not held to particularly high thresholds of activity. It was very much a grace and favour environment and continued presence on boards depended to a large degree on the relationship with the chairman and chief executive officer of the company, one of the many reasons why companies now tend to separate the two functions. Senior lawyers were normally quite ready to accept directorships, not only for the implied honour involved in being recognized as important but also on the basis that, being inside the tent, they might have a better chance to attract legal work to their firms. Oversight of the activities of management and even of the governance systems pursuant to which management operated was, therefore, minimal. When the extent of the financial mismanagement, misrepresentation, and misreporting became known, there was a major after-the-fact reaction regarding corporate governance, including the US Sarbanes-Oxley legislation. Regulations were adopted and tightened, critical assessments were made of the failure of regulatory authorities to have discharged their duties, the accounting profession watched with horror the disappearance of one of its major firms as a result of what was perceived to be a lack of independence, and law firms assessed their own roles in relation to corporate governance. As part of the exercise of reassessing directorships, Stikeman Elliott concluded that members of the firm should not act as directors and that any individual wishing to do so was required to obtain permission to act in

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that capacity from the firm’s executive committee. There was some loosening of this restrictive policy in the case of not-for-profit organizations in the health, charitable, educational, or other public interest fields, which aligned with the firm’s policy on community involvement and pro bono activities. The same flexibility occurred where the individual acted as a director during the incorporation and organization phase of corporations, provided arrangements were in place for the individual to be replaced immediately thereafter or where all the interests in the particular corporation were held by a person or persons related to the individual. It is fair to say, however, that, in general, the firm makes it as unappetizing as possible for a member to act as a corporate director. It is made clear that any decision to serve as a director is a personal decision made by the individual, with the knowledge and acceptance of the related responsibilities, obligations, potential conflicts, and liabilities. Within the overall scope of the policy, any compensation derived from acting as a director is retained by the individual and does not become part of the firm’s revenues. publications Much of the early renown and stature of the firm arose from the many books, loose-leaf services, articles, presentations, newspaper columns, and other publications that appeared under its name or the names of its members. In addition, contributions to legal education, including teaching courses or individual classes at law or business schools, have also been important in building the firm’s reputation. From a policy perspective, initiatives of this type represent an investment of firm resources and a commitment of the firm’s brand and goodwill. With that in mind, any member of the firm who wishes to undertake a project to write and publish a legal text or other major publication, edit a series of law reports or other legal periodicals, write a regular law-related column in a newspaper or a magazine, or establish a website, blog, or similar online form for a purpose related to his or her professional practice must first receive the approval of the managing partner and then the executive committee. Such a requirement will not usually apply to the establishment of a website, blog, or similar online forum by a practice group that has been approved by and developed in conjunction with the firm’s marketing department, nor to any agreement to provide regular lawrelated articles to a publication in which the articles are expected to consist primarily of material that also appears in publicly available firm publications and client updates. Such approvals are not required for individual articles for legal publications, conference papers, magazines or newspaper articles, published case comments, individual web postings, and comments or other short publications. All that is asked in such circumstances is the exercise of

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judgment and, in particular, a consideration of any possible negative effects on the firm’s reputation or on the firm’s relationships with clients and fellow lawyers who are regulators. One of the firm’s flagship publications, begun by Heward Stikeman shortly after the firm was established, was the Canada Tax Service, originally published by Richard De Boo and later taken over by Carswell, prior to its absorption into the current mega-publishing company Thomson Reuters. It was always a highly respected service, especially because it was written by tax-specialist lawyers, thus distinguishing it from other competing publications. The demands of keeping it up to date grew increasingly onerous, especially with the expanding workload of tax practitioners. With gradually diminishing champions to support continued involvement, the firm eventually advised the publishers that it would no longer edit the publication. Responsibility for this has been assumed by a different law firm. It was, however, not without mixed emotions that a torch that had been carried for more than half a century was passed to a different organization. In the tax publications field, we have, however, maintained the firm’s position in the roles of editor-in-chief of the Stikeman Annotated Income Tax Act, the Canada Tax Cases, and Pound’s Tax Case Notes (the latter a review and importance rating of every reported tax decision of the Canadian courts). t e c h n o l o g y a n d t h e l aw (the technological revolution) The pace of technological change has affected the legal profession as profoundly as it has any other sector of society. The effect of the invention of the typewriter in the nineteenth century can be compared with that of the Gutenberg press some four hundred years earlier. Prior to this, all contracts and proceedings were written by hand. Statutes and a few sets of reported cases might have been printed, but all of the other elements of law and access to justice were produced by hand. Carbon paper was another minor miracle, as were dictation machines. The twentieth and twenty-first centuries have brought with them a complete revolution – far beyond mere evolution – in technology, especially communications technology. There are some (including the author) who can remember working with typewriters, instruments of a distant past unknown to modern students. Less than two centuries ago, before trains existed, messages could travel no faster than a horse. Before the steam engine was adapted to ships, messages took weeks to cross the Atlantic, assuming they arrived at all. Then came telephones. With trans-oceanic flight, the delays were cut to a day or two. Urgent written communication at a distance was by means of telegrams, also a medium unknown to today’s entering lawyers. Telexes were almost magic when

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introduced. The electric typewriter was a convenience beyond description, snow-paque was the only possibility when typing errors occurred, a oneline memory was a miracle, Xerox replaced mimeograph reproduction, facsimile transmission of documents was jaw-dropping, computer technology was applied to word and document processing and the Internet began its transformation from limited military and academic use into the most powerful communications medium ever known. Computer speeds increased logarithmically, applications became sophisticated and powerful, beyond the imagination of almost everyone. Wireless communications became commonplace. The world shrank to the size of handheld devices far more powerful than the computers that had put men on the moon. Communication is now instantaneous. So are client expectations. The pace of the practice of law has accelerated beyond anything imaginable a generation ago, let alone when the firm opened its doors on February 1, 1952, even led by two ambitious and motivated founders. Stikeman Elliott was one of the first Canadian law firms to recognize and embrace the new computer technologies, beginning in the early 1970s. Fraser Elliott could see what the future might bring and the value added to a firm that was operating through several offices and the legal fiction of two separate law firms while Canada inched toward the realization that national or inter-jurisdictional law firms would not bring about the death of legal life as it was then known, nor erode the economic advantages provincial legislation sought to protect (rationalized by an expressed concern about protecting their citizens against charlatans unfamiliar with a few provincial statutes). Elliott was canny enough to understand that the early years of the new technology would require considerable investment and a good deal of trial and error, so he chose systems, sophisticated at the time but like cave drawings compared with the technology of today, that had already been successfully implemented in other businesses before the firm used them. The policy of non-invention and of not sinking major sums into the development of software continued until about 2008, when the integration of our many systems had to be specially designed and maintained. The world of communications in which Stikeman Elliott was operating continued to advance at astonishing speeds and to require response rates unthinkable in earlier years. The ability to digitize materials for instant availability and the need to be able to have access to such materials in different locations and to download, use, adapt, and revise documents and data from all over the world became paramount. This capacity was especially necessary for a firm dedicated to becoming the best at what it did and to competing for mandates from clients whose demands and expectations expanded at the same pace. The issue became a central focus for the firm’s management and strategic development. That focus has changed the model of what we do with technology. We now spend millions of dollars every

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year providing input for the developers of the specialized software for our information technology and knowledge management systems, and for creation of the ethical walls that have become such an important part of large business law firms. The daily lives of lawyers have been dramatically changed by technology. The earliest of our video-conferencing initiatives was introduced in 2001 and even a firm cheerleader would have been hard pressed to declare it a success, but it heralded the coming of an age in which it would not always be necessary to physically travel to certain meetings. This was accelerated by the terrorist attacks in New York on September 11, 2001, which led to changes in the way lawyers, including Stikeman Elliott, do business. Prior to that date, everyone traveled regularly, as part of the accepted method of getting business done, but many deals are now done by teleconference and video links, and the parties and advisors may never meet in person, partly because of the costs of travel and the unpleasantness of increased security measures. The use of conference rooms for internal purposes has also increased. Instant communication and sophisticated document production can now eliminate much, although not all, of the need for face-to-face meetings. The volcanic ash spewing from Iceland in 2010 and 2011,which disrupted flights in much of Europe for several weeks, was a nuisance, especially for those trying to get back from another continent, but did not have the hugely disruptive impact on business transactions that it would have had ten or twenty years earlier. In the meantime, the video conferencing technology has improved markedly, with better quality images, more reliable connectivity, greatly diminished lag time in imaging, and improved flexibility to enable participation of several parties on the same call. Not all meetings lend themselves to this medium, but as familiarity with the technology increases, busy lawyers are far more receptive to trading face-to-face contact for the convenience and reduced expense of video-conferencing. Beginning in 2002 and 2003 the Stikeman Elliott lawyers all acquired the ubiquitous BlackBerry devices. The transition from novelty to essential business communications tool took almost no time at all and it would be unthinkable today not to possess a BlackBerry or some variant of the device; many have several. These are both a blessing and a curse. Communications are instant and immensely sophisticated. Messages can be sent and received in real time, to and from anywhere in the world. But they can dominate the lives of the lawyers and clients using them and become functionally addictive, if not dangerous. Very seldom can one can be in the elevator of an office building without seeing several passengers studying their handheld communications devices. People walking on the streets, apparently talking to themselves (reminiscent of the demented who do the same thing), turn out to be speaking on a wireless application (or would have us so believe);

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restaurants are not safe from those who care nothing about others, including those with whom they may be dining; the roads have become an even greater menace as a result of drivers concentrating more on their mobile devices than their driving. Service-to-client opportunities have, however, been enhanced, with the firm’s stated objective that, if a client calls a lawyer, the client will hear back from the lawyer or the lawyer’s administrative assistant within an hour. The ability to receive e-mail messages at any time and in any place has its advantages, as well as its occasionally invasive shortcomings, and has transformed the way in which law can be practiced. It is not without risk, however, and no matter how secure the communications by e-mail may be thought to be, one should always assume that an e-mail will show up at the most inconvenient time imaginable, especially in any proceedings which may be or become adversarial. In 2011, the firm’s executive committee engaged Ernst & Young to undertake a strategic review to assess our technology structure, governance, and organization to be sure we are well placed for the future. The former national technology committee was replaced by an interim information technology priority board, consisting of Marc Barbeau, Brian Pukier, John Anderson, and Jean McLeod, to work with Ernst & Young to develop a platform for the future that will align with our anticipated needs. This involved analysis of our current model plus a review of best practices and approaches used in similar organizations. The objectives were ambitious: to identify information technology solutions that will enable the firm to provide responsive, innovative, and workable advice to clients, to adopt a governing structure that will promote firm-wide initiatives, to provide a forum for local initiatives, to consider the needs of both small and large offices, and to allow fair representation across the partnership. The new model, a “made-for Stikeman Elliott” creation, was rolled out during the course of 2012, led by the newly appointed chief technology officer, Venky Srinivasan, in Toronto and Robert Gauthier, director of transformation, in Montreal. The new model includes “Information Technology Guiding Principles,” designed to guide information technology decisions and a governance structure that seeks input from practitioners. corporate services The need for greater efficiency and effectiveness in the delivery of legal services extends across the entire spectrum of the firm’s activities, especially at the level where specialized expertise and pure commodity work intersect. This area has long been identified as corporate services but for many years only limited attention was given to how best to free-up the time of transactional lawyers by increasing the capacity of paralegals in much of the important, but largely routine, elements of corporate work.

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Using the Montreal office as an example that is reflected in each of the offices, it started with engaging a corporate services director capable of bringing about a massive change in the organization of the department, use of modern technologies, and significant upgrading of paralegal expertise. The latter involved careful recruiting of top talent, extensive in-house classroom training, mentoring of juniors, and on-the-job experience. Today, the traditional paralegal work of incorporations, annual upkeep, and corporate filings is largely automated and has become entirely commoditized. Corporate records themselves have been transformed by technology: minute books are becoming virtual, “originals” are a thing of the past, corporate seals are gone, and many required annual and other filings can be done on line. The paralegal program is tiered: the seniors coach and mentor juniors, who in turn assist and learn from the seniors. Training is ongoing and the learning curve is steep as a result of the complex mergers and acquisitions (m&a) transactions in which the firm is involved. A portion of the learning is extended to the corporate lawyers as well to ensure that they know of the greatly expanded capacity of the paralegal team. The paralegal stagiare program began in 2002 and has been a considerable success, providing the firm with a talent pool of highly motivated, well trained, competent young people from which to recruit the next generation of paralegals. All of them are technologically savvy, a feature that is now de rigueur throughout the practice of law. More than two dozen college students have come through the Montreal program over the last ten years, many of whom have been hired by the firm and are now well established in their careers. The paralegal team has diversified from almost entirely female to one-quarter male. Some of the paralegals are now contracted out to clients for part-time work on site. Seen from the perspective of overall firm management, corporate services has evolved from a cost centre into a modest profit centre, while at the same time relieving clients of unnecessary expenses resulting from the use of more expensive lawyers to do the same work. marketing Not only our lawyers but our clients relish the success of the firm, since whatever success the firm enjoys is the result of the services it has provided to clients and the innovative solutions it has devised to meet their needs. The relationships are symbiotic and while personal relationships are important and necessary to attracting clients, clients have their own responsibilities to shareholders and others, and they increasingly make their decisions on the basis of established expertise. The firm’s challenge, therefore, in addition to performing under pressure, is to make sure that its clients and potential clients are aware that we possess the sought-for expertise.

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This aspect of competitive life has led to increased focus on marketing our expertise. If no one knows you have such expertise, the chances of getting the large mandates that require it will be greatly diminished. It brings to mind the adage of the tree falling in the forest – if no one hears it fall, did it make a sound? Marketing, therefore, whether formally acknowledged as such or not, has always been a part of the legal business, part of the old saw of Finder, Binder, Minder and Grinder. What is relatively new is marketing carried out not through the efforts of lawyers alone but by professional marketing departments. This has involved a learning curve for lawyers, who had to divest themselves of the prejudice that only lawyers know how to market legal services, in much the same way they had to accept that one does not have to be a lawyer to be an effective manager of the business of a law firm. In 2002, a formal marketing function had existed at Stikeman Elliott for only a few years and occupied the time of only a half-dozen staff members in Montreal and Toronto. Much of their effort was devoted to preparing for events and seminars, working up presentations to be used by lawyers in their own promotional efforts, ad design and publication of booklets and newsletters, plus satisfying the partnership’s apparently insatiable demand for firm golf balls and other promotional products. (Actual observation of a considerable majority of the firm’s “golfers” provided allbut-irrefutable evidence that we probably do spend too much time in the office and not enough on the links.) By 2012, the marketing group had increased to nearly twenty members in the Montreal, Toronto, Calgary, and Vancouver offices. Growth of that magnitude reflects ongoing change in the practice of business law in Canada. What not so long ago was an old-fashioned and conservative profession, characterized by deep loyalties and life-long clients, has been transformed in the space of thirty years into a modern and very competitive business for the provision of legal services. From its earliest days, Stikeman Elliott was a catalyst in that change. As a relative latecomer to the Canadian legal scene, the firm depended on the prodigious abilities of Heward Stikeman and Fraser Elliott to sell the bankers and businessmen of St James and Bay Streets on the firm’s unique talents. By the late 1980s, the country’s major law firms had begun to become national in scope. Globalization and free trade brought a new and affluent clientele in the form of foreign companies and entities. Overt and open competition was suddenly the order of the day, a new reality to which the leading firms of the time adjusted with sharply varying degrees of success. At Stikeman Elliott, a number of partners quickly embraced the inevitability of change and moved to adjust to the new conditions. In Toronto, Alison Youngman was perhaps the strongest voice in favour of establishing a marketing department. She prevailed and Catharine Lyons-King was engaged as the first director of marketing in September 1996. Lyle Halcro

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was responsible for the day-to-day design and production work of the department in its formative years and has continued to lead the creative team ever since. Brian Rose and Youngman were the “marketing partners” in Toronto during this period, while Lyse Charette undertook a similar role in Montreal, beginning in 2000. By the late 1990s, the firm was growing somewhat more comfortable with the idea of marketing itself. As the Internet era bore down, there was the difficult decision (taken mainly at Youngman’s instigation) to remove the venerable comma from the “Stikeman, Elliott” name – there being no place for such fustiness in the streamlined online world. Accompanying that decision was the need for a new firm logo – the first to be adopted firm-wide – accompanied by a comprehensive style guide governing its use and the appearance of firm documents and publications generally, applicable to all offices. Many business corporations of a similar size would have had such standards for many years, but for the legal industry, this sort of image-consciousness was something new. Finally, in 2000, despite some lingering doubts about the business significance of the “Information Superhighway,” the final piece of the foundation was laid with the launch of the firm’s first website. In May 2000, Lyons-King left the Toronto office to join the start-up company that had worked on the website project. Her departure provided an opportunity to reassess the place of marketing within the firm as a whole. While this initially included a search for a successor to Lyons-King, the committee ultimately decided – after having interviewed a number of candidates, including Diana Lawrence, then of A.T. Kearney – that the Toronto office needed to take a step back and consider its needs more systematically before committing to a new marketing leader. Over the following year, Bob Manning, a consultant who had previously held a senior business development role at kpmg, was retained to manage the marketing function and, at the same time, to assist with the transition to new leadership in the Toronto office. Toward the end of this interlude, the committee asked Lawrence to interview for a second time. Rod Barrett, McLeod, and Anne Ristic met with her in the spring of 2001 and were quickly convinced that she had the required experience and skills. Their first offer, it must be said, was politely rejected. Lawrence had been warned by her sister, formerly of Torys, that managing the demands and diverse interests of a bunch of lawyers could be “challenging” (history does not record the precise word used in the circumstances). As Lawrence tells it now, the response was compelling: The evening after I had declined the position, there was a knock at my door. It was a courier holding an envelope. In the envelope was a letter, signed by Rod, Jean, and Anne, listing all the reasons they believed

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we were a great match. It also said that they were crushed by my decision and had gone to drown their sorrows at a pub. I said to my husband, “No one is ever going to want me this much again” and changed my answer the next day. Rod still says I’m the only person that ever turned him down. Barrett is, however, prone to occasional exaggeration. When Lawrence assumed the position of national marketing director, there were six people in the department in Toronto still focusing on events, promotional items, and publications. In the Montreal office, the times were also changing. Charette’s decision to leave the firm for a position at Air Canada was quickly followed in July 2000 by the decision to hire Mirabel Paquette as the office’s first full-time marketing director. Paquette had previously been a communications director in the office of Liberal Party leader (and later premier) Jean Charest, in addition to having held a number of marketing posts in the real estate industry. The needs of other offices were met at that time chiefly by the Toronto office, with the assistance of a coordinator in each city. Over the next few years, under Lawrence’s and Paquette’s leadership, the Toronto and Montreal marketing groups shifted into more interactive roles in the firm, including the appointment of practice group coordinators in Toronto who had direct responsibility for understanding and meeting the needs of their designated groups. Technological advances were also implemented, especially the introduction and development of InterAction, the firm-wide contact management system – an implementation that, at its peak, required the services of ten people. The group also played a part in the creation of Stella, the firm’s Intranet, which was unveiled around the time of the firm’s fiftieth anniversary in 2002. Convincing the firm’s lawyers that new technologies could be useful in a legal environment was a constant challenge. (“Challenge” is also the organizational, resolutely upbeat, expression of choice used when describing a problem bordering on the insoluble.) As an example, there was initial resistance to switching from paper newsletters to the e-mailed variety. This was quickly overcome thanks to the competition group, whose success with the online Competitor publication made it clear that clients would read and appreciate electronic marketing communications. In April 2007, a completely new website was unveiled after two years of planning, design, and fine-tuning led by the marketing group in Toronto, collaborating closely with the Montreal team. Unlike most other law firm marketing departments, Stikeman Elliott’s group benefitted from a close relationship with the knowledge management and technology departments of the firm. The former was instrumental in developing firm publications and seminar series, and especially

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the firm’s blogs, which began with one (Canadian Securities Law Online) in August 2008 and have grown to eight within just three years. The blogs have collectively become one of the signature “knowledge products” of the firm and one of the major joint successes of the marketing and knowledge management groups, together with the sponsoring practice groups. The trend toward mandatory Continuing Legal Education (cle) requirements, beginning with those established by the Barreau du Québec, produced yet another major focus for the marketing department, as it was an opportunity to develop larger and more coordinated cle programs aimed at the in-house teams of the firm’s clients and potential clients. Blogs and mandatory cle were two entirely new marketing responsibilities that emerged in the 2002 to 2012 period. But even the old tasks were becoming increasingly more complex. Formal pitches and proposals, relatively rare prior to the 1990s, had grown vastly in frequency and complexity by the first decade of the new century. As matters stood in 2002, they were handled largely on an ad hoc basis, often on very short notice and without the resources needed to tailor them effectively to the particular target client. Former Osler Hoskin & Harcourt associate Chandler Lauzon was brought into the Toronto group as business development manager in 2006, and in that position became the chief architect of the firm’s proposal response process, as well as the primary author of many of the responses themselves. In the proposal-writing field, as elsewhere, however, new technology often raises expectations to the point that time pressures actually increase. Where once the firm could feel proud to mail out a newsletter within a few days of a major court decision, the current expectation is that events and developments should be blogged (or even “tweeted”) almost instantaneously. One of the firm’s signature publications, the annual federal budget commentary, formerly published in the wee hours of the morning after an all-night effort by tax lawyers, translators, and marketing team members, was, by the late 2000s, being deposited in client in-boxes literally within minutes of the finance minister’s closing words. Faced with a power failure, as occurred on the evening of Budget 2010, we needed to rely on old-fashioned legwork, on that occasion Lyle Halcro’s ability to sprint up to the fifty-seventh floor of the Toronto office at 4:00 a.m., throw a printout of the budget commentary onto a functioning fax machine, and send it all out, in good time, to an at&t fax list of more than 1,500 clients and friends of the firm. Although the marketing group was national in scope, regional specialties naturally developed. In the case of Montreal, translation was a major task. Paquette secured the dedicated services of translator Martin Légaré, who helped to give the Montreal group the capacity to translate a remarkable volume of materials, from simple brochures to complex legal publications, from English to French. As Paquette recounts:

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When I started as marketing director, I was the only member in Montreal. We grew steadily, beginning with such long-term members as Christine Roy, Sébastien Noiseux, and Maryse Giroux in the early years, subsequently adding several more. Our emphasis has always been on seeing the marketing group of Stikeman Elliott as an integrated unit, so we do not hesitate to offer assistance to (or request assistance from) the other offices. As a result, while having to devote a significant portion of our resources to translation, we are still able to provide a complete service to our Montreal lawyers. Recognizing the regional character of the Canadian legal market, the firm grew increasingly committed to a marketing presence beyond Quebec and Ontario. Pursuing that objective, the first marketing and business development managers were hired in Vancouver (Michelle Knaut in 2010) and Calgary (Michelle Isaacson in 2007, followed by Patricia McLaren in 2011). For a number of years the biggest and most impressive Stikeman Elliott event in all of Canada was the party at the Calgary Stampede, organized by the Calgary office with help from nationwide marketing team (discussed in the activities of the Calgary office), which helped raise the profile of the firm in the western Canadian market. Looking back on her years as a marketing professional in Alberta, McLaren notes: Nowhere more than Calgary has the firm experienced the effects of globalization. The focus on Alberta’s oil sands has brought the world to our market, including competing law firms from several other provinces and now from the uk as well. Marketing is no longer a long lunch or attending a seminar down the street. It now focuses on rigorous business development processes, tracking relationships through InterAction, and constant travel by partners to China, India, Latin America, and Africa. Translation has become commonplace to a degree that would have been unimaginable ten or fifteen years ago – not only between French and English but between those languages and Mandarin, Spanish, German, and others. Lastly, the marketing group is playing an important role in the fierce competition for legal talent in Calgary (and elsewhere), as it attempts to shape the public image of our firm and its culture. For its part, the Vancouver office focused on offering practice support and services to its many globetrotting lawyers, as well as seminars and client events to match those offered by most of the much-larger west coast firms. The London, New York, and Sydney offices regularly make use of the Canadian offices’ marketing teams to support their client events and advertising and publication requirements.

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Assessing the past decade, the marketing function of the firm has expanded so much because the globalization of Canadian business and the extraordinary growth of electronic communication channels have made it impossible for individual lawyers to reach all of their clients and potential clients without significant assistance. Over the next decade, it may be that the globalization issue that will affect the firm most is the globalization of law firms themselves, as has already begun (in the Canadian context) with the absorption of Ogilvy Renault and Macleod Dixon into the burgeoning global empire of London-based Norton Rose. Whether as a participant in such a union, or as an independent firm competing against other firms that are a part, one of the many keys to the firm’s success will be the continued ability of the marketing group to get the firm’s message “heard” in an ever more crowded, sophisticated, and competitive legal marketplace. retirement policy When the firm was young, the idea that there should be a retirement policy was regarded as important. In 1952, the normal retirement age for people who worked for a living was sixty-five. The firm’s conceptual idea, once it became bigger than the two founding partners, was that partners would have a gradual reduction in their “points,” beginning at age sixty-two, and basically decline on a straight-line basis until the age of seventy-two, when they would fully retire. Retired partners would be provided with an office and reduced secretarial assistance as long as they wished to have such a facility. As the level of remuneration declined, there would be a concomitant expectation that the level and intensity of professional work would also gradually decline. The principle was that this would provide a degree of financial certainty for partners on a retirement track and would encourage them to transfer their work to younger lawyers, since there would be no financial incentive to fail to do so. The unstated risk to a plan of this nature was the possibility that a lawyer would get into the “program” and be under the misapprehension that no further work was required and that there was an entitlement to something in the nature of a pension. In 2003, this concept was altered by the partnership board, which had become concerned that, as more retirements were likely to occur in the relatively near future, having a large number of less active partners might have an adverse impact on the objective of ensuring that our lawyers were practicing in a high-octane environment. A reduced retirement age of sixtyseven was established for incoming partners and for those who were already partners, a phase-in was created, depending on the age of the lawyers involved, so that there was a scale of lawyers still protected to age seventy-two, followed by some protected until seventy-one, and so on. It

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was still expected that lawyers in the pre-retirement phase would transfer their clients to younger lawyers but there would be no established reduction in income as under the previous policy. Remuneration for such lawyers would continue to be based on each lawyer’s overall contribution to the firm, an assessment made by the partnership board based almost entirely on financial contribution. continuing legal education The provincial law societies have, in recent years, offered many courses in Continuing Legal Education in the apparent belief that the profession as a whole would flock to the opportunity to remain current in their particular fields and perhaps absorb the basic elements of developing practice areas. This was an outlook that was, perhaps, somewhat idyllic and may have misjudged both the essential inertia of human nature, plus the demands of practice. The solution was to upgrade the offer to a requirement of a certain number of accredited cle hours as a condition of retaining the right to practice law. This had the desired effect of induced attendance or on-line participation to comply with the minimum requirements. Since there are no examinations involved, it is harder to assess the degree to which attention was paid, but, once having set aside the time (and money) for a course, participation may well have been at least receptive. Some cle courses can be given in-house and still be recognized as official cle, which is a particularly efficient means of delivery to busy lawyers. Creating opportunity out of the legislated requirement for cle, the firm has made a point of using such programs as a means of providing additional services to clients and potential clients, whose in-house counsel have the same cle obligations as any other members of the Bar, often with fewer opportunities to avail themselves of accredited courses. Inviting them to courses offered by the firm has proven to be an effective means of maintaining or creating links with many who are responsible for the choice of counsel on mandates not handled internally. o b s e rvat i o n s In short, responses by the firm to the complexities of managing the expected business issues faced by any enterprise have been largely mainstream and have been facilitated by the single-tier and transparent relationships within the partnership. Law firms have the additional overlay of the professional duty of confidentiality, which has added the greatest complexity to the normal concerns affecting the management of our affairs, but the challenges have been handled quite effectively.

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chapter 9

Challenges, Diversity, and Social Responsibility

As mentioned when discussing big firm management, one of the prices to be paid for growth and success is the need to concentrate on systems, procedures, and governance issues, in short the management of an eclectic enterprise consisting of professionals, paralegals, students, administrative staff, information technology experts, human resources, and a multitude of others whose collective efforts are required to ensure that the lawyers are best able to exercise their profession. These issues are exacerbated when the activities are carried on in several jurisdictions and in two or more languages. The firm has invested very heavily in these areas, which mirror, to some extent, the challenges of keeping a soldier in the field, who must rely on the support, logistical and otherwise, of numerous people to ensure that he or she is able to perform in that role. team building Generating and maintaining the feeling of being part of a single team is an increasing challenge as the size of the firm continues to expand. Even within the larger offices of Toronto and Montreal it can easily become problematic. It is different in smaller offices, where the lawyers may all be on a single floor and see each other every day. In Montreal, where the offices are spread over nine or ten floors, and in Toronto, where, even with a much bigger floorplate, the lawyers are on seven and a half different floors, months may go by without seeing lawyers whose offices are on different floors. The natural groupings become the practice groups and, even then, there may well be subdivisions within the larger groups. From the earliest days, when everyone knew everyone, there has been a gradual transition to knowing all of one’s partners and most of the lawyers, to knowing most of one’s partners and some of the lawyers, to knowing some of one’s partners and a few of the lawyers – and this even within single offices.

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The image of a canoe and the exploration of new territories used to describe the firm in its beginnings, attractive as it may be, is no longer descriptive of a large operation already established on many fronts. From the outside, the firm is more likely to appear to be a single monolith, not unlike the cruiser described at the beginning of this work, capable of major and integrated action on large mandates across many locations. The key to keeping the ship not only afloat but heading steadily in the right direction is generating and maintaining our shared values and a joint commitment to a shared enterprise. The skill sets required to lead and manage an enterprise of this magnitude, consisting of more than five hundred lawyers and supporting paralegals and staff, are quite different from those that sufficed in a small firm trying to carve out a place and invent a new way of rendering legal services. Even professionally, the size and complexity of many of the modern mandates do not lend themselves to the purely entrepreneurial approach that marked the growing firm chipping away at dislodging clients from the established law firms. At that time, the relative luxury of being able to assign teams of lawyers to a transaction or case was unknown, which kept the firm out of many major transactions until the necessary critical mass could be achieved. It was not until the Dome Petroleum refinancing in the mid-1980s that the firm was able to demonstrate that it not only had the intellectual horsepower to play in the major leagues but also the necessary bench strength to permit it to take on such mandates. Annual in-person meetings of partners have proven successful in maintaining the feeling of being part of one team and well worth the significant costs involved. When these meetings are held in Toronto or Montreal, one of the most effective team-building elements has been that partners in the host cities hold dinner parties in their homes for the visiting partners and their spouses on one of the evenings. This has always been particularly popular. The “business” portions of the annual meetings can hardly be described as punishing and are designed to learn about what is going on in the various offices, share the expertise of invited guests, speakers, and clients, and permit the practice groups from the different offices to meet and discuss developments relevant to their practice. Held less often (approximately every five years), firm-wide retreats for partners and associates have also proven to be good team-building exercises and provide opportunities to gain perspective on emerging issues affecting the legal profession, engage in breakout sessions with lawyers from different offices, and socialize with a cross-section of the firm. The most recent firm-wide retreat was in 2011 in South Beach, Miami. Others were held in Miami in 1996, Orlando in 2006, and Whistler in April 2002. (The Whistler event would have been held in 2001 but was postponed until April 2002 as a result of the September 11, 2001 terrorist attacks in New

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York.) The outbreak of sars that affected Toronto in 2003 led to the annual partners meeting being held by video conference in May 2003. Occasions of this sort continue to provide useful opportunities to consider trends identified as relevant to our activities. Taking the South Beach retreat as an example, we had an opportunity to examine some of the discussions about moving support and other functions to lower-cost locations. Among the original flavour-of-the-month tendencies were looking at places like India for such purposes, but the bloom has come off that particular rose to some degree and more-recent thinking has evolved to looking for lower-cost locations within the “home” jurisdiction. Much more important trends, however, to which all law firms will have to pay serious attention, are those of redesigning legal work processes, better management of projects, and related project management training. As discussed later it is becoming obvious that alternative fee arrangements will, increasingly, replace the per-hour fee arrangements of the past. The noisy entry of Norton Rose into Canada caused a closer examination of the trend toward cross-border mergers. At the moment, however, it does not appear that Canada is at the centre of the interests of major international firms since, for the foreseeable future, there are better growth opportunities in other parts of the world. Such firms will, however, certainly keep watching briefs. As to unilateral entry into Canada, this, too, is an economic consideration and, absent some obvious advantage or distinguishing feature peculiar to the particular foreign law firms, once they get here, they become just other law firms, in an already heavily lawyered business community. As an overall imperative, it is important in this day and age for law firms to understand that the legal services business will not be sheltered from the economic risks affecting clients. As in all organizations, succession planning is an essential element for consideration, both at the professional and management levels. We were, perhaps, somewhat spoiled by the ease and grace with which the founding and early partners willingly made room for the younger generation to step into leadership roles. A larger organization requires more formalized mechanisms and identification of emerging leaders, as well as mentoring of them and development of leadership skills for managing partner and partnership board roles. An informal practice has emerged of including “next generation” partners in the partnership board dinners held in a particular city to enable them to participate in strategy discussions. In Montreal, Helios Partners, an organization that identifies business and professional leaders, has been used to offer guidance, substantive training, and mentoring. Pierre Raymond, the current chair, André Roy, the current managing partner in Montreal, William Rosenberg, and Marc Barbeau have benefitted from this program, which has added not only to their own personal professional

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development but also to their networking capacity with others of their generation in the business community. The focus of growth in the firm is on generating and training new lawyers from the beginning of their professional lives. It is not, as already mentioned, on merging with or absorbing other firms. We have engaged in occasional strategic lateral hires, but this, too, while extremely important when it occurs, has not been central and has been used to fill gaps, whether natural, as new areas of business develop, or with particular strategic goals in mind. retention No firm can expect to retain everyone it might wish to keep. Personal circumstances, changes in professional alignment, clients enticing lawyers to consider in-house and possibly executive positions, other firms being willing to pay above market for talent they are lacking, and a host of other factors mean that there will inevitably be departures. Some departures provide opportunities for younger lawyers in the firm to advance even faster than they might otherwise have anticipated, some solve problems that may have been festering for years, and others leave gaps that must be filled by lateral hires. The challenge for all law firms, shared by Stikeman Elliott, is to be able to identify and attract the best talent. While there may be a few law students who know exactly what they want to do, most, however motivated they may be, have many options open to them in the law and are generally not in the daily presence of peers or professors who are intimately familiar with the pace and pressure of a cutting-edge business law firm. Many of the best students have very idealistic views of what they hope to accomplish in diverse areas such as environmental law, human rights, aboriginal challenges, criminal justice, international relations, government service, or an academic career. It is important to both encourage the ideals and increase awareness that the law can be an important agent for change in many aspects of daily and national life. Experience shows that, as students gain experience, their objectives tend to evolve and, although there are not many who run around law faculties declaiming that their aim is to become a Bay Street lawyer, they come to realize that such firms are not by any means two-dimensional and that they provide a much broader base for opportunities to make a difference than they may at first have anticipated. Some, no matter how bright they may be, are unsure about their ability to move from the relative shelter of the classroom to the rigours of professional practice. The recruitment process, therefore, must combine the ability to identify exceptional talent and to make it clear that the intellectual

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challenges of practice are not only exciting but also attainable and that there is a well-developed mentoring process available as well as regular assessments of professional progress, which are designed to maximize abilities and the enjoyment of a fulfilling career. Some students fear that they will become submerged in a large firm and be mere nameless cyphers. There is, of course, a risk that this might happen and firms must be sure that they recognize the danger and respond by creating the most intimate atmosphere possible. Just as the best large cities are a series of smaller communities and areas, so, too, are the best large law firms a collection of manageable teams and practice groups. One of the facts of legal life is that not all students entering private practice are well suited to the lifestyle and pressures attendant upon such a choice. As well, many students merely seek some experience in that world before moving on to some other phase of their lives. At Stikeman Elliott, we have long recognized that very few of the annual intake of new lawyers are likely to start and finish their legal careers in the firm. Obviously, we hope that as many as possible of those who join the firm will be committed to staying, but, knowing that this is statistically impossible, our additional objective has been to make sure that everyone’s experience at the firm is as positive and rewarding as possible. Everyone who joins should know that he or she has been identified as someone with exceptional talent, that the training they receive with us will make them better lawyers, and that they will have had the excitement of working on the best cases, the largest transactions, the legal issues that have advanced the law and that their roles have been recognized and rewarded. Whether they decide to move on is not as important as the good impression and the networking capacity they have developed while with the firm. Our diaspora is much larger than the firm itself. It consists of business, political, regulatory, judicial, and academic leaders, all of whom can be sources of advice, business, reputational status, and influence. It is one of our greatest assets and one that requires not only the initial investment but also constant maintenance and strengthening. c o n f l i c t s a n d m a n dat e i n ta k e As already described, management of conflicts has become a major concern for all law firms, especially since the decision of the Supreme Court of Canada in R. v. Neil1 has had the effect of raising certain business conflicts to the level of legal conflicts. Proper management, now and in the future, of this aspect of modern practice requires an enormous amount of time, energy, and expense, including the selection of mandates that should be accepted. It makes little practical sense to be excluded from acting against 1 R. v. Neil [2002] 3 S.C.R. 631, 2002 SCC 70.

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a one-time client that conferred a mandate on a specific and narrowly defined issue that has no conceivable connection with a different claim or transaction, but that is now the risk. The escalating challenge of avoiding conflicts caused us to have an electronic system for creating ethical walls in place as of April 2004, and our more sophisticated Wallbuilder program, which creates an electronic acceptance of wall terms, was installed in July of 2008. Our Intapp system, which creates an interface between our various systems, such as content management (cms), document management (dm), and others, secures the documents that go behind walls as they are put in place. The number (at the time of writing) of dm documents managed by Intapp, firm-wide, was almost 450,000. Clients, but more often prospective clients, occasionally push the limits of the expanded duty of loyalty to a client by asking lawyers in the firm to confirm whether or not we act or have acted for particular businesses. Our general rule is that we will act for business competitors unless there are exceptional circumstances. We have established a rule that no individual lawyer may agree on behalf of the firm that we will not act for a particular business going forward and that only the firm’s executive committee may make such a commitment. This had the effect of relieving pressure that might have been placed on certain lawyers in such circumstances. The process by which the firm decides which mandates it will accept and which it will seek is intimately connected with the firm’s overall strategic direction. Such decisions may involve the more subtle consideration of the strategic issues of acting or not acting for, or against, certain clients, which may lead to exclusion from lists of eligible or preferred suppliers of legal services. This is exacerbated by the combination of the relative size of the Canadian market for legal services and the growing size and importance of many of the firms in that market. In addition to making certain that we avoid the classic technical legal conflicts, proper navigation requires a broad knowledge of relationships within the business community. Considerable strategic attention has been devoted to managing the entire problem, which has required, among other measures, development of sophisticated software and ongoing lawyer education to ensure that poor decisions are not made in accepting or refusing mandates. The consequences of misjudgment can be significant. security of communications The special and confidential nature of communications between clients and lawyers is one of the foundations of our society. With only a few extraordinary exceptions, such communications remain entirely confidential and benefit from what is known as the solicitor-client privilege. Lawyers

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have a duty to their clients not to disclose any communications made to them by their clients in the course of a professional relationship or any legal advice given by them to their clients. Neither client nor lawyer can be compelled to disclose such communications and the courts have maintained this right as essential to the proper administration of justice. Where, at a much earlier state of development, advice or communication was put into writing, traditionally only two copies were likely to exist: one in the possession of the client and the other in the files maintained by the lawyer. Security, therefore, was relatively simple. All this has changed dramatically in the digital age. Documents are now far more likely to exist in digital format and be stored on servers. We have to consider the implications of new technological phenomena, such as Cloud storage (which we are not ready to accept at its present state of development). Security is a far more complicated issue than ever before and sophisticated measures must be implemented to restrict access to documents to only those entitled to see them. It must also be anticipated that sophisticated measures may also be employed by third parties in an effort to obtain access to confidential information and appropriate countermeasures must be taken to prevent unauthorized access. Computer security is an ongoing concern. No flash drives are permitted unless they have been equipped with encrypted security protection and no documents are transmitted with any metadata that might enable recipients to learn anything regarding the systems. Lawyers must be constantly aware of their special duty regarding confidentiality in many of their professional communications. In a recent continuing legal education (cle) program in which the author participated, the speaker addressed the matter of communications in an amusing and effective manner. He said that after he made a professional mistake, he would eat. Occasionally, he might drink. But he never, ever, wrote e-mails. He gave the example of a lawyer who had done so, on the firm’s e-mail system, acknowledging the error and using words like “we” in the process. (The lawyer, needless to say, is no longer with that firm.) Lawyers, he said, should know that the “e” in e-mail stands for “evidence” and that, on that day at the end of the world when, à la H.G. Wells, the last two cockroaches approach each other in the dark, those e-mails will still exist somewhere on a server. So, never send an e-mail that you would not want to read on the front page of the Globe and Mail, La Presse, or the Vancouver Sun, or be confronted with by an opposing lawyer. k n ow l e d g e m a n ag e m e n t Through the 1990s and the first years of the new century, the firm’s success was accompanied by sustained growth in almost every office. By 2002, one unfortunate consequence of this growth was becoming apparent – with

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400 lawyers, a figure soon to rise to 500 and more, it was no longer realistic to entrust the communication of Stikeman Elliott’s organizational lifeblood – its experience and its knowledge – to casual conversations between partners or mentorship relationships with specific associates. To remain competitive in the upper reaches of the legal marketplace, the firm needed to extract the greatest possible value from the knowledge and experience accumulated by its individual members. The formalization of knowledge sharing had begun at the firm as early as 1987, when Bill Innes of the Toronto office decided that the firm needed to collect and index its legal memoranda. Mountains of documents were enticed out of their filing cabinets and duly assembled into binders, each with a cover page listing the contents and some Canadian Abridgment keywords. Innes enlisted his assistant, Mary Brock, to input this information into a stand-alone computer accessible to everyone in the office. The development of this new approach to knowledge sharing was fostered by the transition of Toronto’s Margaret Grottenthaler to the new position of research lawyer in 1988, after her return from the bcl program at Oxford. One major development in the early years was full-text searching, introduced after Pierre Archambault of the Montreal tax section happened to hear of a new database program – Folio Views – that could accomplish it. Through the 1990s, it was principally Grottenthaler and Brock – aided by Denise Doss of the Montreal office – who built the “Infobase” into an indispensable research tool that was to serve the firm with considerable success into the new century (even if for a number of years the Montreal and Toronto offices had to share their database additions by mailing cd-roms from one office to the other). Looking back on the early years of what came to be known as “knowledge management,” Grottenthaler recollects that: I don’t know if we even would have had an Infobase if I hadn’t taken computer science courses as an undergrad. In the very early days, there weren’t any off-the-shelf programs – Mary Brock and I had to get in there and program the Infobase ourselves. The billion-dollar industry that has sprung up around knowledge management in the intervening years looked a long, long way off back then, when we had to be our own “software solution.” These early efforts helped to ensure that a number of elements essential to a knowledge management initiative were already in place at Stikeman Elliott long before anyone had heard of the term “knowledge management.” By 2002 there was, in addition to the Infobase, a collection of precedents covering several practice groups as well as internal cle publications such as the CLE Bulletin, which in the spring of that year, was re-launched as the client-friendly Retrospect. At just about that same time, the firm was

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acclimatizing itself to the first version of the firm’s Intranet (christened stella after a firm-wide naming contest). However, while a valuable set of resources had been accumulated under Grottenthaler’s direction, advances in technology (coupled with the increasing complexity and competitiveness of legal practice) made it both feasible and necessary for the firm to take the next step and implement a knowledge management strategy that would act as a road map over the following years. What were needed was a plan and, especially, a structure – both a unified technological infrastructure and a structured group of lawyers to oversee the creation, collection, and dissemination of the firm’s intellectual capital. Implementing the strategy required a significant investment and, it must be said, a leap of faith in a business law market that had yet to recover fully from the dot-com bust. The committee struck to develop the strategy included Grottenthaler and fellow partners Louis P. Bélanger, Pierre Martel, Anne Ristic, Franziska Ruf, and Alison Youngman, as well as Jean McLeod, Dan Levinson (a lawyer in the Montreal office who was focusing on precedent development), and Andrea Alliston, a senior associate from Toronto who had only recently changed career direction to take up a new knowledge management role. With the assistance of an outside consultant, the group developed a report that was approved at the October 2003 partners’ meeting. The report stressed that “km” would be more than just a matter of technology. Instead, it would be an essential part of the firm’s day-to-day practice in a twenty-first century environment – a complex environment in which lawyer specialization would increasingly make the ability to share knowledge easily and widely a key factor in any firm’s success. The strategy thus focused not only on core legal content, such as precedents and legal memoranda, but on file management, current awareness of business and legal developments, enhancing client relationships, and externally directed updates and publications (continuing an emphasis on writing that dated back to the early years of the partnership). The plan also encompassed the technology infrastructure and human resources that would be required to support its implementation. In spite of the magnitude of the effort required, the committee was convinced that scattershot efforts of the sort that had brought the firm its first modest successes in knowledge management in the 1980s and 1990s were ill-suited to serve the needs of the future. It was also clear that the project would need full-time leaders and champions. It was not feasible for Grottenthaler to assume the position, given her existing dual role as the firm’s principal research lawyer and partner in the structured finance group. In much the same way, Bélanger, chair of the Montreal km committee, had a busy full-time practice. In Toronto, the answer lay with Alliston, a strong technical lawyer who intimately understood the firm’s corporate practice and who was, fortuitously, looking for ways to broaden and develop her

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existing km role. In Montreal, Levinson was similarly able to guide the initial km effort until 2005, at which point he was succeeded, after a brief interval, by Sylvie Hébert, who had been recruited from the corporate group at what was then Ogilvy Renault. The km leadership in Montreal had also changed by that time with Kevin Kyte, a corporate partner, taking over from Bélanger as chair of the Montreal km committee. The development and collection of content, with a particular focus on precedents, was the initial primary focus in both Toronto and Montreal. At the same time, work began on the development of a km infrastructure in co-ordination with the technology department. The advice of Grottenthaler and Kyte was regularly sought when a voice of experience was required. With the debut of the “1.0” version of stella km, Stikeman Elliott became one of the first firms in Canada to implement an “enterprise search” system. It was now a simple matter to conduct a single search that would encompass the vast majority of the firm’s memoranda, precedents, cle materials, and external publications as well as its client documents, matter descriptions, and lawyer expertise and experience information. The second version of stella km, which implemented some significant advances in search-engine technology, was introduced in 2009. One aspect of creating such an infrastructure, which was not fully accounted for in the km strategy, was the amount of maintenance, enhancement, and improvement that was constantly required to respond to user needs and technological advances. In a developing field that in many respects is tied to ever-changing technologies, it is rare that any task is ever really “done.” As has been the case in almost all of the firm’s initiatives, what mattered most over the long run in the km group was the quality of its people. It was the particular ideas and abilities of km lawyers that took km at Stikeman Elliott in fruitful directions that no strategic plan could have contemplated. In addition to Alliston and Brock, the original group included Andrew Cunningham, a lawyer who had worked on Toronto office publications, including acting as co-editor of the CLE Bulletin and Retrospect since 1997. Because his work often involved client-facing publications, he had developed close ties to the Toronto marketing department, which had the fortuitous advantage of bringing the km and marketing functions together at an early stage in their development at the firm, enabling a great deal of productive collaboration. As Alliston had assumed the leadership role for the overall km strategy in addition to her existing burdensome responsibility for maintaining the Toronto precedents, it became apparent that a group of three was not enough. The first addition was Ramandeep Grewal, who joined the km group from Goodman & Carr in 2004. Grewal brought an exceptional understanding of securities regulation that enabled the km group to prove its worth in one of the largest, most important, and most complex of the

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firm’s practice areas. Grewal’s success in this area opened up an important new role for the firm’s km lawyers, who became not only content developers but also advisors to practicing lawyers on technical issues within their areas of expertise. Practice support quickly became one of the most valued aspects of the km effort, bringing a personal touch that kept the km efforts “neighbourly” in the tradition of the firm. As other practice groups grasped the value of having a dedicated km lawyer, the team expanded in a careful and measured way, rounding out Alliston’s role with the private m&a group and Grewal’s role with the securities group. Experienced lawyers from both inside and outside the firm joined the group, including additional support by Daniella Laise (succeeded by Martine Ordon in 2011) in the securities and investment funds areas, as well as veteran associates Andrew Elliott in real estate, Eric Wai in corporate, and Kelly Niebergall in banking. In Montreal, Sylvie Hébert had a broad role supporting a number of groups on their km initiatives, in particular leveraging her prior practice expertise on a range of private m&a and commercial precedents. Hébert was joined by Maïté Murray, who made a transition from the corporate group to focus on the Montreal corporate services precedents, and later by Anna Romano, who initially worked on a wide range of precedents and was subsequently able to leverage her former practice experience in support of the Montreal banking group. Marie White, formerly a practicing notary, was instrumental in the collection and indexing of thousands of Montreal memoranda and other documents. The entrepreneurial spirit of the firm was as evident in its km initiative as in many others that had preceded it. In addition to precedent development and practice support, the km group quickly saw that it could be equally valuable in supporting the lawyer-client relationship. To a degree, it was already achieving this through its contributions to firm publications, but in 2008 and 2009 it expanded its role through the introduction of Canada’s first major law-firm blogs. Under the guidance of Grewal and Alex Colangelo – a km lawyer with securities and technology expertise – Canadian Securities Law became, and remains, the gold standard for Canadian law firm blogs, attracting over 20,000 visits per month by 2012. In conjunction with the marketing department, Colangelo and the knowledge management group assisted in the creation of seven other blogs that brought the firm’s knowledge and experience directly to clients, the media, and the public. Law firm blogs were barely imaginable at the time of the 2003 strategic km report but having km lawyers who were free to develop their own roles enabled the firm to respond swiftly to the possibilities offered by social media as it seized and maintained a leadership position in the legal “blogosphere.”

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In addition to practice support, another unanticipated benefit of the km initiative was the improvement of the firm’s ability to provide integrated responses to significant legal developments from the multiple perspectives of legal content, cle, marketing, and technology. For example, when registration reform was announced in 2009, the firm was able to produce a comprehensive package of material for clients over the space of a single weekend, a co-ordinated effort that took advantage of the integration of the firm’s practicing securities lawyers, km lawyers, and marketing department. The initiative also included the development of iiris (a database of the firm’s registration clients) as well as a full suite of precedents to address the changes and the automation of those precedents with document assembly software to ensure efficiency through the transition period. Other initiatives arising from the registration reform effort included those to provide ongoing current awareness information and education for lawyers and clients alike as well as the development of new processes and procedures for the firm’s securities clerks in response to the new requirements. As practicing lawyers focusing on their respective practice areas, the members of the knowledge management group were able to exploit their connections with one another and with the business, information services, technology, and marketing functions of the firm to ensure that both lawyers and clients were led through the transition as smoothly as possible. In 2011, the Montreal km group undertook a similar exercise with the new Quebec Business Corporations Act. This integrated approach continues to distinguish the firm from competitors, whose km, library, technology, and marketing functions work, for the most part, in isolation from one another. In the wake of the 2007–08 financial crisis, businesses around the world began to trim their legal budgets, leading to new demands for “value for money” from clients and ultimately placing the traditional law firm business model under stress. At a 2010 partners’ meeting, the noted author and legal futurist Richard Susskind spoke about the pressures on the legal marketplace, the impact of disruptive technologies on legal practice, the trend towards commoditization, and the importance of knowledge management to a firm’s strategy. Despite the provocative title of his book, Susskind’s view was not that there would be an end to lawyers, but that they would have to face a future considerably different from what had gone before. One of his images was that the practice of law would have to change from making a hole in the wall to using a Black and Decker drill, that the management of knowledge and collective insight would be imperative, and that increased focus on problem avoidance would be required. The market (which, by definition, cannot be wrong, although it can be contradictory) wants more for less. There is an issue of whether

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general counsel of some clients will be willing to invest in prevention, since there is often an attitude that good management is simply a matter of reducing expenses. On the other hand, not everything lawyers do is bespoke and they should be able to break any assignment into tasks and determine the most efficient manner of completing them. Many can be turned, essentially, into commodities. New legal specialties, such as process management and outsourcing are certain to emerge and lawyers must be ready to capitalize on them.2 For Alliston (who became a partner in 2010), Hébert, and the km group, integrating Susskind’s ideas into the firm’s km strategy meant, among other things, looking for innovative ways to package services and exploring the possibility of tailored km solutions with some of the firm’s major clients. In Toronto, Alliston was also asked to lead that office’s initiative around legal project management and budgeting. These are the sort of initiatives that are likely to figure with increasing prominence in the second decade of km at Stikeman Elliott. In reflecting on the first decade, Alliston comments: We have come a long way in the last ten years. During the initial years of our km program, we were focused on our initial km strategy, our legal content, the beginnings of our km team, and how we compared against our competitors. We have now evolved our km program beyond those basics to a point where our knowledge management initiatives are core to leveraging our intellectual capital for the benefit of our clients. The ongoing development and execution of our km program has important strategic value for our future and I am excited to see where we take it. Even though hallway conversations will always play an important part in the communication of the firm’s expertise, knowledge management is bound to be increasingly critical to the firm in the competitive and specialized global legal marketplace of the twenty-first century. While it is difficult to predict the form that km will take in the coming decades, it is clear that, thanks to the efforts of many Stikeman Elliott members over the last ten years, a solid foundation for the future has been laid.

2 Susskind referred to some observations by William Gibson. Allowing for the frailty of the author’s note-taking, these included: “The future has already arrived – it is just not evenly distributed yet,” and “The best way to predict the future is to invent it.”

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leadership transition Leadership and management transition is essential for all enterprises, including legal firms. Thus far, Stikeman Elliott has enjoyed good leadership and relatively painless transition, in part arising from the original understanding of Heward Stikeman and Fraser Elliott that, once the firm became a true partnership, the leaders following them had to be identified and accepted by the firm. Leadership took two forms – business and management leadership and intellectual leadership. Elliott was the natural business leader and Stikeman the intellectual leader. This categorization is not to slight the intellectual capacity of Elliott, nor the business acumen of Stikeman, but to demonstrate how they worked together so seamlessly. They recognized that both elements were necessary and each was content to allow the other to assume the related responsibilities. In time, the founders of the firm came to be identified more in that capacity, while others stepped into the active roles, James Grant as managing partner in Montreal, followed by Calin Rovinescu, Kip Cobbett, and André Roy, and David Finlelstein, Rod Barrett, and, now, Jay Kellerman in Toronto. Leadership in the smaller and newer offices was initially more opportunistic, based on partnership decisions in assigning partners to those offices and later by internal elections as in the larger offices. Much the same transition occurs within the various practice groups in each office as the earlier leaders bring on their successors and the natural order of progression occurs. We are now entering the first period in which a significant number of retirements will occur, something almost unthinkable to the collection of young lawyers in the 1960s and 1970s, which viewed itself as invincible and immortal. economic modeling Economic turbulence, beginning in late 2007 and persisting to the time of writing, has brought with it some opportunities as well as challenges. Stikeman was always fond of saying that the firm welcomed periods of change and turbulence, since we were always ready to seize the opportunities arising from such conditions rather than merely trying to endure any deprivations that might result. As a transactional firm, it cannot be said that that we enjoyed the slowdown of commercial activity, especially in the areas of mergers and acquisitions, but our expertise stood us in good stead as we competed for the work that was available. We had no mass layoffs. We did our share of belt-tightening, of course, and the value of points dropped somewhat from the previous record levels of 2007, but no one was eating canned cat food. The market instability was constantly in the

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news and there was no doubt that the staff were worried about the impact on their own jobs, so we instituted a series of town hall meetings to assure them that we were managing the situation carefully and that there was no need for undue worry. There had always been a pretty careful eye kept on costs and the firm had always managed to be as lean as possible, so there was very little “fat” being carried. Uniquely among the other major firms, Montreal maintained its policy of hiring all of the stagiares or articling students upon admittance to the Bar, guaranteeing them employment for a year after their qualification. This is not simply generosity on our part, even though the utilization rates of lawyers across the board were lower than at the pre-recession peak. When the recession ends, we want to be sure that we have good, well-trained, young lawyers already in place and not be caught trying to catch up as a result of letting people go at the first sign of a financial crisis. With or without the recession, the economic model of major law firms needed re-examination. Businesses were paying much more attention to the costs of legal services, which, at least in the high-end mergers and acquisitions practice, had not been subject to the same scrutiny as the more routine areas. In-house counsel and executives were becoming more involved in determining appropriate fees, even for the heady areas in which, formerly, the sole objective had been to get the deal done, whatever the costs might be. From the perspective of law firms, this had meant that they could throw whatever resources might have been required to get the deals closed. In the post-recession period, assuming we are not overly optimistic in so characterizing it, this is a matter that is being addressed and may well make the difference between creating yet another opportunity to advance our competitive position in the market or falling back into the crowd. A veritable cottage industry is growing up, focused on what the future holds for both the providers and consumers of legal services. Susskind’s partnership meeting presentation did not predict an apocalypse (he enjoys the speaking fees), but he did warn that the economic model would require major adjustments and that the broad-based pyramidal structure now typical will become much narrower. Clients will no longer be willing to pay large-firm rates for young lawyers to learn their trade. This will be done in-house or will be subcontracted to specialized firms, such as Delegatus, which can provide experienced lawyers for specific projects on a much cheaper basis than could be supported by the large firms. Clients will still be willing to pay for high-end specialty work, but the narrower band of such work will not sustain broad organizations as before. The implications seem clear: sophisticated law firms will likely grow smaller over time, not larger. The lawyers formerly required for the lower end of support for high-end transactions will no longer be required, since they will not contribute meaningfully to the profitability of a firm. Lawyers themselves will need to become more efficient. Paralegal and support staffs

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will be increased. This will increase the challenges for recruiting and retaining talented lawyers. From the perspective of billing, in addition to the provision of legal expertise, law firms are forced to consider alternatives to the hourly billing rates multiplied by the number of hours worked. The evolution of the “hourly rate” was one of the outcomes of computerization of accounting records and moved in a direction unforeseen at the time it was instituted. It was originally used simply to assist in forecasting annual budgets and had no role in the pricing of legal services as such, which might, depending on the circumstances, bear no relation to the hourly rate assigned to each lawyer. The accounting firms, especially in their audit functions, did not have a value-added service. Instead, they provided a service that their clients were effectively forced to consume as a matter of corporate or regulatory law. Audit clients approached the matter of pricing accordingly, demanding budgets based on the minimum amount of work required for the audit opinions and being entirely willing to shop around for better bargains if necessary. It was a completely different model from the provision of legal services. But, for budgeting purposes, if you were managing a law firm and had a known number of lawyers working an average estimated number of hours per year and wanted to have a rough idea of the financial position (in addition to the costs) of the firm, you could establish a conservative hourly rate per lawyer that could be expected to be realized and extrapolate to an approximate gross income. It was very much a rough stroke canvas, but was better than intuitive guesses. Over time, however, the hourly rate assumed the character of master rather than servant. Clients discovered that hourly rates for each lawyer existed and demanded to know those rates. The next step was to require detailed invoices showing the precise activities of the lawyers who worked on the matter and the time and hourly rate charged in respect of each lawyer. In the early stages of this feature, it was easy to say that the rates were simply budgeting tools for the law firms, not a statement of the value of the services rendered. Clients, however, increasingly took the position that what was sauce for the goose was sauce for the gander, saying that they had their own budgets and needed to have better estimates of what they would be called upon to pay for legal services. Bit by bit, therefore, the concept of hourly rates became the driving force in calculating the eventual fee charged and the degree of flexibility in pricing legal services declined precipitously. The response by the law firms, of course, was to turn the hourly rates into pre-valued services, still useful for their own financial modelling but now much closer to the actual expected income. And so it goes … None of this is rocket science. In a service business, we should be sensitive to the needs of our clients and willing to provide alternative fee arrangements that will give them the certainty they desire while reflecting the added value resulting from our work. We are the experts in legal mat-

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ters and should, with our broad experience, be in the best position to know how much work will be required with respect to a particular mandate. We know where there are efficiencies in our own operations that can be instituted to ensure that our clients benefit from avoidance of any waste or duplication. We should be willing to propose fixed price fee arrangements for much of our work and then make sure we deliver the services within the amounts quoted, at a level commensurate with the clients’ (and our own) expectations. It may well prove to be a great marketing point to be able to say to a potential client that “you will never again pay us by the hour.” In fact, that may become the new paradigm. All this, however, is only one part of a complex and multi-faceted strategic planning for the future. l o o k i n g f o r wa r d The world is now well into the twenty-first century and is showing no signs of comforting stability. The pace of change has continued to increase. The pressures for instant performance have increased. Time for reflection seems to be a luxury that few can afford. The concept of a self-regulated profession is openly questioned. Lawyers are increasingly defendants in malpractice litigation and even criminal proceedings arising from their professional conduct. Law societies have been criticized as slow and lax in their investigations of professional misconduct and unduly hesitant to impose appropriate penalties if and when they finally decide to act. It is small wonder that the public has lost some degree of confidence in the strength of selfregulation on the part of the profession. Governor General David Johnston considered the question important enough to challenge the whole profession at the 2011 Annual Meeting of the Canadian Bar Association in Halifax. In an unusually hard-hitting address, Johnston, himself a lawyer and former dean of Law, asked the profession to consider whether it had lost its way in connection with many of the schemes and investment “products” that were at the heart of the financial crisis in North America and elsewhere and had failed to exercise the kind of judgment that might have prevented some of the excesses. No single law firm can alter the economic course of any country, but it can ensure that it maintains the highest professional standards, which include not only legal competence but also responsibility for knowing the proper limits of any engagement in which it is involved. It is one thing to acknowledge that an error may have been made in the interpretation of a legal issue or that an issue was not noticed, which led to an error, but quite another to lose a moral compass. This is a constant challenge to all lawyers and one to which special attention must be given as the firm goes on. Thus far, the firm has been very conscious of this responsibility and has acted

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quickly and firmly when dealing with any failures of ethical conduct. Kathryn Chalmers ably directs the firm’s professional and ethics committee. There are some who question whether a profession can be practiced as a business or if the two concepts are antithetical. There is nothing inherently contradictory in the two concepts. Instead, it is a matter of style and commitment to the basic elements of professional conduct and the efficient application of business principles. The measure is determined by the market: good lawyers add value to their clients’ interests; bad ones do not. Lawyers who have chosen to practice law have made a decision that their objective is not solely to make money. If they wanted only to make money, they would have started or acquired their own businesses, gone to corporations where they could get stock options, or gone into investment banking. Application of business principles to the practice of law includes becoming strategic regarding the markets, or portions of markets, in which the firm will be active. The overriding principle is that, as a business, the practice of law is a top-line business, dependent on getting mandates, keeping track of the work done, billing the work, and collecting the accounts. No one will get rich simply by cutting costs (not that costs are irrelevant); the key is to grow the income. Sharing of resultant profits within a firm is based largely, although not exclusively, on an individual’s economic contribution to the enterprise. This sounds rather like the elemental “you eat what you kill,” but the principle is not without merit when practicing with other professionals and, to be fair, if it were dramatically different, the risk of losing the most effective lawyers to competitors who would be prepared to recognize the economic value of such individuals would be exacerbated. Deciding on the share of profits is not easy, especially as the firm gets larger. We have not opted for the lock-step model, in which partners at each level are considered to be equal partners and share accordingly, regardless of economic contribution, on the basis that a partner is a partner is a partner. For many years, we had a philosophy that there was a maximum level that might be achieved, measured in an absolute number of “points” (since percentages would be pointlessly complicated and increasingly minimal), but the expansion of the total number of points eventually rendered those limits unrealistic and, while there is still some sense of baseline levels, the exceptional performers have significantly larger numbers while there are some who, despite their legal abilities, are unlikely to achieve the top level baseline due to the nature of their work or their unwillingness to drive themselves to the same degree as do the top producers. There is an annual process of discussion with each partner, followed by a proposal made by the partnership board regarding the next year’s allocation of points. An appeal process exists for those who may have some issue with the proposals and any revisions are factored into a final list that is approved by a vote of the partnership board. Once approved, the full list

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is circulated to all partners. As a process for dealing with a subject that can be delicate, it is entirely transparent and every partner knows what every other partner earns. An issue that raised its head in the last ten years is whether the firm should become a two-tiered partnership. From its beginnings, the firm has been resolutely a single-tier partnership, with complete transparency regarding income, billings, expenses, and the share of profits enjoyed by each partner. Many firms, however, have opted for the model of two tiers, separating certain partners from “equity” partners, creating a stepping stone approach in the progression of a career, in some cases as a means of ensuring equitable treatment of partners who may, in relation to other partners in the firm, be considered to be under-performing. The two-tier matter was first reviewed in the early part of the decade, and again by Cobbett and Anne Ristic in 2007, at which time it was again decided that our current approach is best, even if it seems to run contrary to a trend, except in firms against which we want to be measured. Nothing, however, is forever and a watching brief is maintained on a regular basis. The role of Montreal within the firm is quite special. It was in Montreal that the firm began and was led for several decades, with the shift of the balance of power to Toronto not beginning until the late 1970s. Montreal has paid a heavy price generally as a result of the political uncertainties in Quebec and the general westward move from the relatively mature, firstsettled, eastern part of the country. The impact on the relative importance and influence of the Montreal office within the firm has been substantial, although it remains much more important than the Montreal offices of any other national firm. More and more of the business deals in Canada are run out of Toronto because of the availability of financing in that market and it does not seem likely that there will be any significant shift back to Montreal in the foreseeable future. A challenge will be to learn to function within a different reality from that which existed when the firm began. This should become easier as the Old Guard, who remember the “good old days when Montreal ran the firm,” move on and retire. Lawyers of the newer generation do not have to adjust to that change of reality, since it existed when they began, and they can appreciate the overwhelming advantages of being an integral part of a leading national firm. it’s easier to get to the top t h a n to s tay at t h e to p The subhead reflects an observation often made regarding competitive sport, where results are measured in wins or losses, with no middle ground. Although the practice of law has its competitive aspects, getting to the top is a question of competing for market share, rather than focusing on “beating” an opponent. Our early years were marked by the enthusiasm of

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closing ground on the then-major firms, expanding market share, being more nimble and creative, challenging their hold on clients, disputing their status as the leading firms, and taking as much oxygen out of the air as possible. We were not ourselves a target, since we were small and moving so quickly that it took time for our competitors to acknowledge that we had “arrived.” Now we are out there, in plain sight, easily visible to our competitors, who analyze what we are doing and try to improve on what we do best. Of course, we are not standing still and we continue to raise the bar. It is in the nature of things that we can manage competition within the environment in which we are a leader. If there is a threat that could be serious, it is that we may not have visualized who will be the new “Stikeman Elliott” of the twenty-first century, the ambitious young lawyers who have discovered a new paradigm for delivery of legal services that we may have failed to recognize on our own. This is yet another reason to encourage young leadership within the firm, closer to the generation that will invent the future. Are there the legal equivalents of Bill Gates and Steve Jobs already changing the metrics? challenges for the next generation As the world becomes increasingly global, there are more opportunities for the kind of people that we can, or wish to, attract to the firm. We know that we risk the loss of some of them to other possibilities that open up in the Middle East, Shanghai, Singapore, and other business centres. Jobs in law firms are now, in many cases, springboards to other careers, places where talented young lawyers develop a base of knowledge, a network of contacts, and then go elsewhere, unlike the former model of working at the firm indefinitely with the objective of becoming a partner. The great majority who leave do not do so unhappily but mainly because they want to do something different with their lives. Those lawyers of earlier generations would never have considered many of the global possibilities now available to a more mobile generation. As the firm gets bigger and the kinds of mandates become larger and more complex, it is generally more difficult for young lawyers to get to the centre of the action. A generation earlier, there might have been only a single partner on a deal and even lawyers at the beginning of their practice could get drawn into (or thrown into) the middle of the transaction. Now the deal partner more than likely has a younger partner as the number two on the file, or a senior associate, not a first-year lawyer. They still get experience, but the line responsibility may come later than it used to. There are, of course, exceptions (as there always are at Stikeman Elliott). Responding to the recent financial crisis, as well as to indications of the need to offer different billing or budgetary models, considerable effort has been focused on analysis of the components of previous mandates to

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identify areas in which we could be even more efficient in future, especially from a staffing perspective. Such analysis permits us to model the costs and revenues of different staffing assumptions in relation to a particular mandate. From a business enterprise perspective, it should also enable management to determine whether a particular mandate, or even type of mandates, is profitable and thus whether we should manage it differently. Initial work in this area has been headed up by Cobbett and Lucia Pollice in Montreal, who liaise with Barrett, Ristic, and Alliston in Toronto. In some ways, there is nothing like a crisis to focus attention on how to improve services. Post-2008, every partner was urged to visit with significant clients to discuss the impact of a slowed economy on their businesses and how they were addressing the issues. In the same context, we discussed how we can deliver better value to them and what their main concerns might be with respect to our services. The discussion went beyond simply rates to other means by which we could improve the delivery of the services we provide and even the sort of services that we render. It could be as simple as offering different rates for different types of work, such as lower rates for day-to-day work that could be performed by younger associates with higher rates for transactional work. For the benefit of both parties, we could offer discounted rates for certain types of work for which we had not previously been consulted. To assist in budgeting, we could offer estimates for certain types of defined work. An underlying theme, however, was that we did not think that we should be competing on the basis of price but rather on the value of the services provided. It is often overlooked, especially by clients, that, even if our rates may be higher than those of many other firms, at the end of the day the overall cost to them can be less, due to our experience and expertise. Estimates, even budgets agreed upon with clients, can be helpful to both the client and to the firm. This requires discipline on both sides, since the scope of the work can easily change, either at the request of the client or because of circumstances that arise in the course of a transaction or negotiation. Where this happens, the lawyers involved need to think defensively, since there is financial risk as well as client relationship to consider. One level of mutual protection can be established through use of an engagement letter, which outlines the particular services contemplated and may determine the basis on which services will be charged. Here, the onus is most likely to fall on the lawyer, who is presumed to know what will be required to achieve the objective although not necessarily to be able to predict the many twists and turns in the life of a deal or a dispute. Budgets, in particular, must be regularly updated or they will lose their value. All this is reasonably new to lawyers, who will require constant education on the process and the monitoring of ongoing mandates, but the future is likely to bring increasing pressure to operate in such a manner. The days have gone where

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clients are content to have lawyers coming through their doors without any means of estimating what costs they are thus incurring. Women One of the major challenges for the legal community and for law firms in particular is to find ways to make it possible for women to succeed in both the practice of the profession and in obtaining leadership positions, whether in law firms’ corporate legal departments, the public service, or elsewhere. The profession as a whole, until now dominated by males, has been somewhat slow to recognize its responsibility in this area and to appreciate the benefits that would flow from doing the right things. A conference entitled “Women Legal in 2012,” held in June 2012, framed the discussion as follows: Is the “Business of Law” itself a detriment to the advancement, retention, and succession of women in leadership positions? In the past few decades, men and women entered law firms as first-year associates in roughly equal numbers. Nevertheless, by the time women arrived at most senior leadership levels (of counsel, non-equity, and equity partners) they represent[ed] only 34%, 27%, and 16% respectively. Such stark and seemingly dismal statistics have led to a number of studies and discussions that attempt to identify the obstacles and barriers that have led to this year-over-year failure to reduce the gender gap at the leadership level. Why do so many Fortune 500 companies require their network of law firms to engage in diversity best practices that illustrate growth and change? Because evidence today not only supports that diversity practices are a sign [of] a well-managed company, but also because women make up almost half of the US workforce and are assuming greater leadership roles in corporations across the board. The business imperative becomes obvious as we increasingly find women in leadership roles in corporate law departments far [out]number their law firm counterparts. What is the potential impact of this disparity – and how might this factor into the selection and retention of outside counsel? Clearly there are no easy answers to the many issues that have led to the current imbalance. Some progress has been made with respect to more generous maternity leaves and flexible work schedules, as well as business development and leadership programs for women, but the inescapable fact throughout the legal profession is that many of the pathways to solutions currently lie in

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the hands of male practitioners, who have often shown little inclination to give up their preferred positions and have a regrettable tendency to fall back on out-dated responses such as, “if you want to be an m&a lawyer, when the deal starts, you have to be available 24/7 for as long as it takes.” Good organization of work and of the way it is apportioned would make nonsense of this dismissive approach. Many would argue that the law itself is not inherently unfriendly to women. Rather, there are two aspects of the practice of law within a partnership that, while challenging for all, may have a disproportionate effect on women in our current society and business environment. The first aspect is that lawyers sell their time to clients and the unpredictable nature of client needs and demands means that in order to meet their obligations to their clients, lawyers must frequently work long hours outside regular business hours on short notice. This can be particularly challenging for those women who are the primary child-care provider in their families. Good organization of work and the way it is apportioned can go a long way towards alleviating this issue, but the nature of our duties to our clients means that it cannot be eliminated entirely. The second aspect of practice within a partnership that is challenging for many is that, in order to advance into the partnership and become an owner of the business, a lawyer must have developed his or her own practice, with a following of clients who provide work to that lawyer in a very competitive legal market. Developing a practice and meeting the thresholds for partnership and ownership are not easy for anyone. Women, however, may face special challenges, not only because they may have had maternity leaves that have interrupted their progress in business development but also because so many clients and potential clients are men with predominantly male networks, who may naturally gravitate towards engaging male lawyers within these networks for their legal work. There are diverging views on how to increase women’s leadership role in law firms and get more women in the partnership ranks. Some suggest special programs, extra coaching, or affirmative-action type approaches that would apply different yardsticks to women and men, while others suggest that treating women differently risks undermining their position in business generally. This conflict has always permeated any discussion around gender and diversity and there are no clear answers. What we do know is that women bring enormous talent, skill, and insight to our firm and for purely business reasons we want to attract and retain the best women in order to advance our position in the international legal community. There are several challenges with respect to increasing the number of women in law firms, one of which is what occasionally seems like an endless barrage of negative press about women in the marketplace and discouraging reports of women leaving the legal profession in droves. Notwith-

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standing much of the criticism directed at it, the legal profession has, in fact, done quite a lot to advance women and, although it is difficult to satisfy everyone, we feel that our firm in particular has been in the vanguard of such efforts. We have found that one of the keys in making significant progress is not to get drawn into a woman-as-commodity quantitative analysis. Instead, we try to measure our success on an individual professional basis. From an overall perspective, we begin by placing tremendous value on the contributions of women in the firm – as successful legal and business professionals, as role models, as industry leaders in their areas of expertise, as leaders in firm management, and as leaders and champions within their communities. Our focus is essentially twofold: first, to help women lawyers get to the top of the profession and, second, to become as familyfriendly as possible. Consistent with that view, we recognize the importance of providing resources to support the women in the firm collectively, as well as to assist them with their individual career goals. We try to attract the best women to the firm and then provide them with a great experience, giving them the assistance and tools to maximize their potential. For technical matters, we make every effort to ensure that they have the opportunity to act (along with their male colleagues) in a broad range of cases and transactions in their practice groups, combining this with a robust mentoring process by lawyers of both genders. In the early years of practice, concentration tends to centre on improvement of technical and lawyering skills. However, as associates become more senior and are considered for partnership, it is no longer simply a matter of technical competence and analytical capability, and the lawyer’s profile outside the firm and ability to attract work acquire increasing importance. The barriers here for women are perhaps not as stark as in years gone by, but the fact is that, even with more women in the profession, there is still a default tendency on the part of male clients to give work to other men. One of the first things we do is to make sure our women lawyers know this, beginning at the recruitment stage. We deal with sophisticated clients, who expect a lot from their lawyers, so we have something like a Truth in Advertising approach – women need to be as informed as possible about the situation and must then make their own decisions about the profession and private practice. We look for women who want to get to the top of the profession, who are ambitious, who love the work we do. And then we do everything we can to support and encourage them in their efforts to achieve the success for which they are looking. Just as we believe that women lawyers can benefit from the perspective of male lawyers, the same is true for male lawyers, who can learn to appreciate different aspects and styles from women. We provide and support marketing and business development initiatives for women, with particular emphasis on how to tap into male networks, as well as creating separate women’s networks, since

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there are a growing number of women who are responsible for allocating work to outside law firms. While modern law firms cannot be run by their diversity committees, nevertheless enlightened tasking of these committees and responsive consideration of their recommendations could mark a significant step forward. Failure to find appropriate solutions will become an increasing problem as time goes on. Clients are showing increasing willingness to consider diversity issues as well as corporate social responsibility in their selection of outside counsel. Such considerations can be expected to accelerate as women reach increasingly senior levels in corporate positions and as the key relationships between outside law firms and major corporate clients migrate from the president and ceo to the general counsels. Law firms unable to demonstrate significant progress on both fronts may deservedly pay for this failure with the loss of potential mandates and even clients. Whatever the degree of truisms involved, there is a significant element of good business practice to be considered on both sides of the equation. In addition to individually focused engagement, leadership development, and retention initiatives, we have marketing and business development training, which includes a business development coaching program for new women partners and senior associates who are approaching partnership. We recently launched a pilot project discussion series called Getting Together, which is intended to facilitate informal mentoring between our women partners and associates on a range of topics related to associate development, including leadership, practice management, business development, and work-life balance. We support business and development events targeted at women, including client events and events with industry groups such as Women’s Capital Markets and the Canadian chapter of International Women’s Insolvency and Restructuring Confederation, with the aim of encouraging leadership opportunities for women in the larger legal community. We also partner with clients to host women’s mentoring and networking events where our lawyers are encouraged to bring junior lawyers with whom they work to allow for mentoring on networking techniques. Since the 2009 inception of the Law Society of Upper Canada’s Justicia Project, dedicated to retaining women in private practice, we have made significant contributions and provided leadership to it. Within the larger project, we took a leadership role in all three subcommittee working groups on maternity leave, flexible work arrangements, and business development for women lawyers. We have been relatively successful (more in some offices than others) in our approach to making it possible for women to succeed. It would be wrong to suggest that we have a perfect solution, but we are hugely committed to this objective and the entrepreneurial heritage of the firm makes

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it easier for us than is the case in many other large law firms. It is fair to say, in addition, that the male lawyers of the firm have demonstrated marked enthusiasm for this commitment and have been more than willing to choose talented women for on-the-job training in complex files. As is the case with male lawyers, not all women pursue the road to partnership. Women have the same individual aspirations as men and these do not always point to a lifelong career in private practice. Our aspiration, however, is to ensure that those who move on do so knowing that they have had a great experience, that it has been a stepping-stone to further experience. Family No matter what the level of domestic support within the family, which will never be uniform, the inescapable fact is that women bear the family children. At one stage, having a child was a virtual professional death knell, signalling the effective end of achievement within the profession. This attitude, quite apart from its inherent unfairness, led to a waste of talent and experience. Firms gradually realized that they needed to become family friendly and to find ways to keep and nurture women rather than effectively punish them for having a family. Led by Alison Youngman, we adopted robust maternity leave policies in the early 1990s and have developed flexible work schedules with many of our women (and some of our men) over the past twenty years. We provide outside consultants to offer individual assistance with pre-maternity leave advice and post-maternity counselling, including time management, for the re-entry into professional life. Conceptually, we are open to accepting any arrangement that will work for the individuals involved and the firm, and work with individuals to develop proposals for that purpose. These arrangements tend not to fall into the category of working, say, three days per week or simply reduced hours, but are more about a total goal for the year and being available when clients are in need. Technological developments have greatly assisted these efforts and remote access is now such that lawyers can work seamlessly from home. Thus, unlike earlier years, when, having fed the children and put them to bed, the lawyer had to return to the office in order to work, it is easy to work from home via e-mail or virtual office applications. We have a home technology stipend for all lawyers and students, together with state-of-theart remote access and after-hours technical support and administrative assistance for those working from home. While nothing is perfect and everything remains a work in progress, the present situation is nevertheless an improvement in many respects over the past, when measured against the best practices in the legal services industry, as well as the broader business community.

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social responsibility Diversity We come from and practice in a number of diverse communities, one consequence of which is that we have recognized that to attract and retain the best talent possible we need to draw from a pool that is as large and diverse as possible. This means that we must be conscious of attracting and recruiting the very best, in accordance with our professional standards, without inadvertently discouraging or excluding members of diverse communities. It has, perhaps, been somewhat easier for us because diversity has been a prominent fact of life from the earliest days of the firm and comfort with diversity increases with familiarity in daily practice. Diversity and the desirability of it must, nevertheless, be kept at the forefront of the firm’s focus to ensure that not only is our recruiting undertaken with that objective in mind but also that firm members from all communities are engaged, mentored, and supported in their career development and have access to the tools and opportunities necessary to facilitate their success. Our commitment to these objectives is formalized by having a diversity committee, one of the first of its kind among Canadian law firms, currently chaired by Lorna Cuthbert in Toronto, with committed members in each of the other offices. Its activities are measured against the best practices in the legal services industry and beyond. This has led to our diversity committee working handin-hand with the students, associates, and management committees. In 2012, a new milestone was reached when the original diversity committee was replaced by the national diversity and inclusion committee, which coordinates a national action plan for diversity and inclusion. Continuing success and growth as a law firm is driven in many respects by our ability to attract the best clients and the best work, no matter where the clients and work may be. The firm has been built on international opportunity and we already have a long tradition of uncovering new business opportunities around the world. We have, in addition, recognized that our diversity and women’s initiatives have an increasing role to play in advancing our client-focused and business development goals, quite apart from our recruitment and engagement strategies. Recognition as one of Canada’s Best Diversity Employers by MediaCorp Canada is a helpful measure of our success and the award has its own value as a third-party validation of our commitment to diversity. These efforts are linked to community outreach, since law firms in general were perceived as falling well short of providing environments that were inclusive and supportive of people from diverse communities. To assist in attracting the best people, we have become more proactive in reaching out

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to such communities, demystifying our environment, and promoting our accessibility. Taking our four largest offices as examples, the Toronto office has a long-standing involvement with Pathways to Education, a program created and implemented in Toronto’s Regent Park community, whose goal is to encourage young people from at-risk or economically disadvantaged communities to stay in school. We mentor students in the program, hire Pathways high school students for administrative summer positions, invite participating high school students to visit the office for “Take Our Kids to Work Day” and for organized tours, and sponsor Pathways events, including a reception at the office for Pathways university alumni. In Montreal, we work with Summit School, a specialized school for young people with developmental disabilities, including behavioural and emotional disturbances, autism, Down Syndrome, and severe learning disabilities, whose goal is to provide students with the knowledge and skills to allow them to both function and add value in the job environment. In Calgary, we work closely with Inn from the Cold, an organization that provides shelter and support for homeless children and their families. It serves members of many diverse groups and provides programs such as language training and immigration assistance. The office provides financial donations, volunteer hours in the shelter, and pro bono assistance for the organization’s board of directors. We participate regularly in its fundraising activities and won a 2011 award for Philanthropy that Impacts Children for our involvement in the Kids Inn Play program, which tries to ensure that kids have year-round access to recreational facilities. In Vancouver, the office supports a number of local charities, including the annual United Way Campaign, the Isis Cultural Outreach International Society, and the West Coast Legal Education and Action Fund, a non-profit organization that litigates and educates in British Columbia to strengthen the substantive equality rights of women and girls. Members of the firm are consistently active with affinity groups representing women and diverse communities at law schools across the country and with programs that promote diversity in the legal profession. We provide sponsorship and other support to law student organizations, we speak at events and conferences organized by these groups, and we host firm tours and panel discussions focusing on job search issues and career management strategies. Following an initial meeting in 2011 with the Aboriginal Human Resources Council to discuss diversity initiatives and job placement opportunities, effective in 2012 we are partnering with the organization on recruitment. We are pro bono counsel for the First Nations Child and Family Caring Society in a dispute regarding funding of child welfare services for Aboriginal children. In 2012, we secured a significant win for the society when the Federal Court directed the Canadian Human

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Rights Tribunal to examine evidence that First Nations children are being discriminated against due to federal underfunding of child protection services on reserves. Recruitment and identification are an important part of our diversity program, but even more important is the need to develop employee engagement, show the way in career advancement and leadership, and adopt retention initiatives. This begins with a robust mentoring program, which consists of three mentors for those at the student level, two at the associate level, and one for senior associates. We make certain that students from diverse communities are matched with at least one mentor from a diverse community and we match both male and female students with at least one female and one male mentor. The process includes performance reviews, which take place three times over the course of the articling year for students and twice per year for associates, annual or semi-annual individual career development meetings, regular networking and mentorship lunches, and periodic discussions with mentors and talent management directors. For the lawyers, in addition to internal mentoring and career development support, the firm supports participation in external organizations such as the Canadian Association of Black Lawyers, Women in Capital Markets, and the aba’s Minority Corporate Counsel Association. We also offer students and lawyers access to external coaching programs on a range of topics, such as presentation skills, stress management, business development, practice management, leadership skills, and cross-cultural fluency. Many of the challenges raised by diversity can be diminished by good educational programs and the firm has made a serious commitment to them. There are regular diversity and harassment orientation training programs for new hires that include comprehensive scenario workshops and coaching to facilitate awareness, an open dialogue among firm members, and an understanding of firm resources available to firm members. We also ensure that mentors are provided with regular training programs, with particular focus on sensitivity to diversity and gender issues. Outside experts are regularly invited to present programs to members of our diversity, students, and associates committees on topics related to cultural fluency, best practices in diversity, and women’s initiatives. Ongoing education is facilitated by external workshops and seminars offered through the Call to Action conference, Diversity Canada Conference, Human Resources Professional Association Diversity Seminar, Diversity in Law – Directors Development Series Breakfasts, and many others. When all is said and done, one of the best contributors to career and leadership development is on-the-job learning and the opportunity to work on challenging assignments with a broad range of lawyers and clients. Even that, however, needs resources to support the objective. We provide all

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associates, students, and their mentors with a roadmap, illustrating five stages of a lawyer’s development from student to established partner. These maps form the foundation of our leadership development program and provide associates and their mentors with reference points for mentoring meetings, performance reviews, and career management discussions at each stage of development. As part of this process, there is an analysis of the mix of work assignments to be sure that a broad base of work and challenging assignments is undertaken between review periods. Written messages on progress and developmental goals are provided, along with assessments of progress toward partnership. Corporate Social Responsibility Corporate social responsibility (csr) is an increasing element in today’s business world, not only because it is a good idea on its own account but also because a significant number of clients and potential clients are themselves active in the field and use their leverage to influence their suppliers to focus on the same issues. We had been active across a broad front of such initiatives but had never formalized a comprehensive policy and had never tracked the various efforts. By 2009, it was apparent to the partnership board that we needed an overall csr approach to bring our existing community involvement, pro bono, going green, and diversity under a single coordinated umbrella. The objectives were twofold: to help increase engagement within the firm and, externally, to add to our marketing efforts by adding value to the firm’s reputation, improving our recruiting and retention efforts, and increasing our overall competitiveness. Our community involvement program was launched in 2007 and involves matching contributions for certain donations as well as a focus on grass roots initiatives, charitable boards, and pro bono legal advice. A going green program was established in 2008 and the firm became the first Canadian law firm to become carbon neutral in 2009. A matching policy with respect to contributions to law schools was also begun in 2008 and more specific attention devoted to women’s initiatives and diversity was highlighted by establishment of a firm-wide diversity committee in 2011. A csr component was added to the firm values in 2010. While there are no universal measurements of success or progress across the full range of csr activities, there are, nevertheless a few published evaluations and the firm has scored very well in many categories. It has been named among the Top Employers in Canada in 2009, 2010, 2011, and 2012, the 50 Best Employers in Canada for 2010, 2011, and 2012, Canada’s Best Diversity Employer for 2010, and was Best Employer for New Canadians in 2010.

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Green Thirty During the last few years, Aon Hewitt has published an annual list of Canada’s “Green Thirty” – organizations whose employees are the most positive about their record on environment stewardship. The lists are compiled from employee feedback using questions that focus on employers’ environmental strategies and activities and their efforts to consider longterm social, environmental, and economic impacts when making decisions. The firm has been named to The Green 30 in 2010, 2011, and 2012. For 2012 more than 112,000 employees in more than 260 organizations were surveyed regarding their employer’s commitment to environmental stewardship. Stikeman Elliott was the only law firm included in the list for 2012. Volunteer Community Service Many of our lawyers are active as volunteers in community service, across a broad range of such activities. To identify but a few, in Montreal, FranceMargaret Bélanger is a director of the Quebec Breast Cancer Foundation, Jean-Pierre Belhumeur is a director of la Fondation du Théatre du Nouveau Monde, Luc Bernier is an examiner and committee member of cga Canada, Hélène Bussières teaches at the Barreau du Québec, and Peter Cullen is a director of Le Bon Dieu dans la Rue. Alix d’Anglejan-Chatillon is on the board of the Musée des Beaux-Arts de Montréal, John Leopold is a director and executive committee member of the Montreal Children’s Hospital Foundation, and Pierre Martel is a director of the International Friends of the Montreal Museum of Fine Arts. François Ouimet is a director and officer of the Stewart Museum, Vincent Prager is a trustee of the Beaverbrook Canadian Foundation, André Roy is a director and secretary of la Fondation de l’Hôpital Sainte-Justine, and the author is president of the Canadian Civil Liberties Association, the Foundation of Greater Montreal, and Canada’s National History Society. In Toronto, Donald Belovich serves on the board at St Mildred’s Lightbourn School, Bill Braithwaite is a member of the board of the Toronto Symphony, Alan D’Silva serves on the board of Sunnybrook Foundation Cancer Cabinet and lectures at the University of Ottawa Faculty of Law. Ron Ferguson is on the Special Olympics festival committee. Evan Grbesic serves on the board of the Canadian Croatian Chamber of Commerce and Margaret Grottenthaler on the Art of Time Ensemble. Peter Hamilton lectures at Osgoode Hall, Jim Harbell is on the board of St Clement’s School, Samantha Horn is on the board of Kids Internet Safety Lines, and Karen Jackson is on Plan International as well as Peggy Baker Dance. Jason Kroft lectures at Osgoode Hall and is a board member of the Kidney Foundation. Adrian Lang serves on the board of the Canadian Stage Company, Nancy

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Ramalho on the board of ymca Canada and Jeff Singer on Junior Achievement. Lewis Smith is on the board of Literature for Life and Ed Waitzer, in addition to his role as a professor at York University, is a Toronto Community Foundation Director. In Calgary, Lisa McDowell is a board member of Junior Achievement of Southern Alberta and of the Vecova Center for Disability Services and Research. Brad Grant is vice-chair of the board for Inn from the Cold, Gary Clarke is a board member of the h&r Block Cycling Team, and Glenn Cameron serves as a member of the major donor fundraising cabinet of the United Way of Calgary. Mike Mestinsek sits on the board of the John Hart Hunter Educational Foundation and is a board member and lecturer for the Legal Education Society of Alberta, while Doug Richardson is a member of the Editorial Board of the Federated Press Publication on Resource Taxation. In Ottawa, Lawson Hunter is on the board of the Ottawa Art Gallery, Greg Kane is chair of the board of the Ottawa Hospital Foundation and is on the board of the Council for Canadian-American Relations, the Governor General’s Performing Arts Awards Gala, Canadian Friends of Dulwich Gallery, and the advisory board of Canadian Lawyers Abroad. Susan Hutton is a director of the Ottawa Rotary Home Foundation and a guest lecturer on competition law at the University of Ottawa, while Jeff Brown is a lecturer at Queen’s and Osgoode Hall Law Schools in competition intellectual property law interface. In Vancouver, Michael Allen sits on the board of Renascent Foundation (Toronto), Edgewood (Nanaimo), and the British Columbia Children’s Hospital Foundation and Mulgreave School. David Brown is a director of the Contemporary Art Gallery and is a Bar admission course volunteer instructor. Noordin Nanji is chair of the Aga Khan international conciliation and arbitration board, a member of the Vancouver General Hospital and ubc Hospital foundation boards, and a former board member of the United Way of the Lower Mainland. Hein Poulus is a director of the Vancouver Symphony Society, the Vancouver Symphony Foundation, and the Vancouver Symphony School of Music. Richard Jackson is the founding chair of the board of Tsawwassen Independent School Society and is a lecturer at the Asia-Pacific Institute, the Real Estate Board of Greater Vancouver, and Douglas College. John Anderson is board chair at Collingwood School and an annual presenter at Senior Practitioners Mergers and Acquisitions cle. Jonathan Drance has served on the board of bc Hydro and at various times served as chair of its corporate governance committee and capital projects committee. Eugene Kwan is a member of the board of the Vancouver General Hospital, ubc Hospital Foundation, and Vancouver Port Authority. Daniel Steiner sits on the advisory committees for the Vancouver Aquarium, the Jewish Family Service Agency, and the Vancouver Opera.

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Amyn Abdula serves on the board of directors of the Vancouver Symphony, the Open Learning Foundation, Focus Canada, Prince Aga Khan’s Ismaili Council for British Columbia, the Vancouver Centennial Commission, Vancouver-Odessa Sister City Committee, and on the board of governors of the Vancouver Aquarium. In the foreign offices, Ken Ottenbreit is active in Ice Hockey in Harlem, the Canadian Association of New York, and the annual Terry Fox Run. In London, Derek Linfield serves on Canada Day in London and the Foundation for Canadian Studies in the uk and is a board member of the Memorial University of Newfoundland Alumni Association mun (uk) Ltd. Richard Hay has been a mainstay in the Canada-uk Chamber of Commerce. Donations For many years, Fraser Elliott’s policy (and therefore the firm’s) regarding donations was that the members of the firm worked together to earn their income but gave separately and the firm itself did not make charitable, political, or other donations or undertake sponsorships. This policy has changed considerably in recent years, both with respect to significant business development aspects and as part of the firm’s community involvement. Standard circumstances would include those where a senior executive of a major client is chairing a campaign or is very involved on behalf of a particular charity. Community Involvement and Pro Bono As a way of encouraging and supporting community involvement, the firm has implemented a community involvement/pro bono program designed to encourage volunteering by firm member at all levels. Such involvement can be related to charitable events and opportunities where the firm will assist firm members who take the lead in organizing and promoting involvement by others in the firm in the initiative. This assistance can take the form of providing t-shirts, use of boardrooms, e-mail coordination, and other services. Examples of grass roots initiatives in the past have included the Terry Fox Run, cbcf Run for the Cure, Bell Walk for Kids Help Phone, Out of the Cold, Camp Oochigeas Run, and Bike for Tykes. The firm will also make a donation of $20 per hour for volunteer work completed by staff, law clerks, associates, and articling students for a registered charity up to $600 per year per person. More significantly, the firm will also match donations of up to $5,000 per year per person for firm members who sit on charitable boards and who also make a financial contribution. The pro bono legal advice component of the community involvement program builds on the current approach of providing pro bono legal services for organizations (mainly charitable and not-for-profit-organizations).

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The firm has continued to sponsor community initiatives such as the United Way and Défi corporatif Canderel (Universities Cancer Research) and specific pro bono activities such as the Osgoode Business Clinic, Habitat for Humanity, Luminato-Toronto International Arts Festival, Terry Fox runs (in Canada, as well as in New York, India and Singapore, before the office was closed) and the Quebec Breast Cancer Foundation, all of which provide opportunities to involve firm members in community initiatives. In June and July 2012, the Toronto, Ottawa, Vancouver, Calgary, and Montreal offices participated in the Ride to Conquer Cancer as part of our sixtieth anniversary celebration. One hundred and eight riders took part and the Stikeman Elliott team raised a total of $410,000 A variation on charitable giving by the firm can be found in its policy of matching donations made by firm members to special campaigns by the law schools of which they are graduates. This is meant to be for special campaigns only and not simply annual giving programs. Whenever such a campaign is underway, a graduate of the particular law school is assigned as “champion” to coordinate donations on behalf of the campaign and to ensure that the individual and matching donations eventually receive appropriate recognition. conclusions The challenges may appear daunting, and it is certain that finding solutions to them may not be easy and the solutions may not be intuitive. That said, we should embrace the new challenges with the same enthusiasm Heward Stikeman would have shown and with the same ruthless objectivity in managing them that Fraser Elliott would have brought to bear. They are challenges, of course, but they are also opportunities for us to anticipate and to create a greater and more positive differentiation vis-à-vis our competitors. As many observers have been prone to say, stability and prosperity are over for our lifetimes. That may be so, but necessity is the mother of invention and our strength has always been the combination of initiative, energy, and determination to succeed. That is a formula that never becomes obsolete. We just have to be certain that we get the right people on the bus.

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chapter 10

Epilogue as Prologue

One of the most difficult problems in a book of this nature, dealing with a fast-moving and constantly evolving work in progress, is how to get out of it. The firm’s story is far from complete and there is an enthusiastic appetite to ensure that we continue to be forward-looking. We will need, however, to combine the perspectives of the founding partners, one of whom was interested in historical reflection as a base for the future, while the other was focused solely on tomorrow, with little, if any, interest in what had happened yesterday. It seems appropriate, therefore, to end with brief reflections from the outgoing and incoming chairs of the firm, one with the benefit of looking back on experience in the position and the other with only the prospects of office before him, as the putative heads of state of the firm represent the firm and its members and have a special role to play in its tone, ambitions, and performance. The role of chair of the firm requires some connection with everyone who is part of the day-to-day effort to deliver legal services. Indeed, one of the most demanding aspects of the position is that everyone in the firm wants to have personal access to the chair for a huge range of communications, from purely business to purely personal. In addition, the chair must coordinate the strategic thinking of the firm and have sufficient time to think about the larger issues – legal, social, and business – that bear on the delivery of legal services and shape the general nature of the firm’s response to them. Even that is not enough, however, since the real key to success is not just mastering today’s challenges but anticipating what the future will bring to ensure that the firm is pre-emptively ready to embrace whatever change will enable it to flourish in new circumstances.

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epilogue As he draws to the end of his stewardship as chair of the firm, Pierre Raymond looks back on his tenure. Throughout it, he has been grateful for the legacy received from those who have gone before, which has been an invaluable asset in meeting the challenges we faced. These have intensified in the last ten years, which have seen more changes in the practice of law than the previous twenty. The “instant” generation has greatly influenced the practice and the demands of clients for instant response has made the profession one that is particularly demanding on practitioners, notwithstanding the intellectual stimulation involved. Clients have become increasingly sophisticated and their sophistication leads to more complex transactions and needs, which in turn drives us to find more imaginative solutions to new issues. The firm has been successful in responding to client demands by becoming more efficient, not just through use of the Internet and BlackBerries but also through the use of far more sophisticated knowledge management. Lawyers today are bound to be more exposed, as a result of the globalization of clients and their law firms, to clients of different origins and to transactions or litigation involving the nationals and assets of many jurisdictions. The bi-juridical experience of the firm and its facility in English, French, and other languages have been major factors in its international success. The last five years have proven, once again, that we can cope with uncertain economic times and the firm has responded extremely well to the turbulent times. While financial results may be one measure, even more important is that, with very rare exceptions, we have not lost any star contributors. The loyalty and commitment of our people is perhaps the greatest testimony to what we have created. Visiting our various offices, Raymond has been struck by the degree of camaraderie among partners and associates that is ingrained in daily interactions. As a manager, the chair must deal with the possibility of a long-lasting slowdown of the economy and the knowledge that the firm cannot be insulated from the forces affecting the economy. The professional environment of law firms will be increasingly influenced by the business side of the practice, with a resulting greater importance on business generation. That will inevitably lead to increased challenges for management, which has already been faced with more demands for accountability than managers in previous eras. As the need for business development increases, so too will the demands on management to provide the tools, opportunities, and support to enable the firm’s lawyers to achieve what is expected. Downward pressures on business development can be expected as the role of the

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general counsel evolves as the “face” of clients concerned with costs and the role of the lawyer as the trusted senior adviser to management is diminished. Going green, social responsibility, and diversity are no longer simply nice slogans, to be afforded lip service without action. They are real and important considerations for those carrying on any business and we have embraced them with enthusiasm. Finally, Raymond notes that the practice of law is based on its people and that all knowledgeable observers of the legal scene in Canada would agree that the firm has, unquestionably, the best bench strength in Montreal and Toronto, which bodes well for the next ten years. Even though we nurture our spirit of adventure and entrepreneurship, the decade just past has shown that we have added to our collection of “medals” many of the positive characteristics of an institution. He is proud to be handing over the reins of a firm that is even better than the one he inherited. prologue The incoming chair, William Braithwaite, is very conscious of the responsibilities of the position. Like the firm, he was born in 1952 and has spent half of his sixty years with it. During that time, he has witnessed and been part of the wonderful building of Stikeman Elliott into one of, if not the, best business law firms in Canada. With the passing of the two founding partners, no one remains with the firm who was there in 1952. He and his partners are now truly on their own. He contemplates his first year at the helm of the firm appreciating the remarkable vision and drive of the founding partners and the many others who have come before him. His responsibility is to ensure that all who follow do not lose or diminish that spirit in any way. Having breathed that spirit when he was young, he recognizes the obligation of today’s leaders is to keep it alive for future generations of Stikeman Elliott lawyers. He acknowledges that he would be foolish if he did not admit that there will be challenges ahead. The legal landscape in Canada and globally is shifting and Stikeman Elliott needs to be able to adjust as appropriate, but he is convinced that we are well positioned to meet those challenges – we have a remarkable team of talented lawyers who care. He fully expects that when he steps down at the end of his term as chair, the firm will be as strong as it is today and it will be so sixty years from now. checklists for the future Lawyers have an affinity for lists and many in the firm enjoyed the list that was part of the fiftieth anniversary celebration at Whistler in 2002.

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1 Never lose sight of the need for diversity amongst us. We will need the broadest range of talents and backgrounds as we face a national and international future. Embrace and seek out, rather than rejecting, differences. 2 Anticipate and be ready for change, not as a passive condition that will inevitably occur but as an agent that will enable us to remain in the forefront, as leaders, not unwilling followers. 3 Be ambitious, both in the perfection of your talents and in the application of those talents as part of your team. You can be sole practitioners in the desire to become the best you can be, but you practice law as members of a team. 4 You are in a service profession. Render the best, the most useful, and the most timely service for the benefit of your clients. If they succeed, you succeed. 5 Work hard and play hard. You cannot work effectively and to the best of your potential without the release valve of play. What you play is up to you, but be sure you leave enough space in your lives for play. 6 You practice within the context of a community and a society that is bigger than the profession. The law, in the public practice in which we engage, is not abstract. Our job is to understand both the law and its social context. The one without the other cannot succeed. 7 Think out-of-the-box. Anyone can stay within the box, but the way you add value to our clients is to be creative. Lots of lawyers “know” the law, but only the best know it well enough to use it, not just parrot it. Know the law better than all the others in the profession and then you will be able to use it. 8 Remember how we got here. It is fashionable in this age of instant sound bites and no sense of history to forget that there are roots. This firm has the greatest of roots and it will be a mark of your own sense of who you are and where you are going that you give daily honour to those roots. 9 Stay young. You cannot fight the calendar, but you can stay young in outlook and attitude. There is no better example than Heward

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Stikeman, who was never old. He died young. He renewed his driver’s licence just weeks before he died, fully intending to renew it five years later. He embraced computers at the age of eighty. He participated in the firm’s crew in a dangerous and demanding boat race around the Isle of Wight at age eighty-three. He raced in the firm’s ski races in his eighties and wore out ski guides in the Alps. We in Montreal would see him in his eighties, at seven in the morning, returning from his tennis sessions. He never got old. Don’t you get old. 10 Never, ever, forget that, above all else, you are professionals, within a profession that is unique and that has a particular responsibility within society. You must have the courage to recognize the responsibilities implicit in being a professional and to act in accordance with the highest standards that the profession exacts from its members. In addition to those suggestions, the following list helps capture the spirit of the firm. (None of them can be attributed to the author, whose only credit (if any) is that he collected them and kept them handy.) • • • • • • • • • • • • • • • • • •

Nothing is interesting if you are not interested. It is hard to lead a cavalry charge if you think you look funny on a horse. Learning is not compulsory; neither is survival. Life is under no obligation to give us what we expect. Luck is being ready. Whenever you find yourself on the side of the majority, it is time to pause and reflect. It is not enough to have a good mind; one must use it as well. Do not make the wrong mistakes. Do not look where you fell, but where you slipped. If you do not know where you are going, you will probably end up nowhere. Failing to prepare is preparing to fail. Focus on remedies, not faults. You cannot build a reputation on what you are going to do. It is better to wear out than to rust out. Skate to where the puck is going, not to where it has been. Success is never final. Choose a job you love and you will never have to work a day in your life. Youth is glorious, but it is not a career.

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• •

It is easy to make a buck. It is a lot tougher to make a difference. Keep your mind on the objective, not the obstacle.

… and, finally, special Stikeman Elliott values… • •

If it’s wrong, it’s wrong, even if everybody is doing it, and if it’s right, it’s right, even if nobody is doing it. The only place – the only place – where success comes before work is in the dictionary.

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Appendices

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appendix a

Partners of the Firm as of February 1, 2012

toronto Andrea L. Alliston Roderick F. Barrett Donald G. Belovich Joel E. Binder Andrea Boctor William J. Braithwaite Elizabeth Breen Eric H. Bremermann Michael Burkett David R. Byers Eric M. Carmona Stuart S. Carruthers Kathryn I. Chalmers Timothy Chubb John Ciardullo Richard E. Clark Larry Cobb Paul Collins Curtis A. Cusinato Lorna A. Cuthbert James C. Davis Rocco M. Delfino John R. Dow Alan L.W. D’Silva Sean F. Dunphy Ron Durand

David Ehrlich Jeffrey Elliott Ron Ferguson David N. Finkelstein Marie Garneau Ivan T. Grbeši Margaret Grottenthaler Peter E. Hamilton Jim Harbell Douglas F. Harrison Brenda Hebert Philip J. Henderson Samantha Horn Peter F.C. Howard Karen E. Jackson John A.M. Judge Katherine L. Kay Jay C. Kellerman Alan Kenigsberg Douglas J. Klaassen Eliot N. Kolers Dean A. Kraus Jason Kroft Adrian C. Lang Martin Langlois Calvin Lantz

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Appendix A

Jennifer Legge Amanda Linett John G. Lorito Daphne J. MacKenzie David R. McCarthy Raymond McDougall Mark E. McElheran Craig Mitchell Dave Muha Shawn C.D. Neylan Robert W.A. Nicholls Wesley R. Ng D’Arcy Nordick Patrick J. O’Kelly Mario C. Paura Elizabeth Pillon Sharon Polan Bruce R. Pollock Dana Porter Brian M. Pukier Ian G. Putnam Dee Rajpal Nancy Ramalho Cliff Rand

270

Kenton Rein Darin R. Renton Anne L. Ristic Simon A. Romano Alexander D. Rose W. Brian Rose Danielle Royal Michael D. Rumball Melissa Schyven William A. Scott Wayne E. Shaw Jeffrey M. Singer Lewis T. Smith Stewart Sutcliffe Maurice J. Swan Ashley J. Taylor Sean Vanderpol Mihkel E. Voore Edward J. Waitzer Kathleen G. Ward David Weinberger Jonathan W. Willson Marvin Yontef Glenn Zacher

montreal Éric Azran Marc B. Barbeau Bruno Barrette Marie-Andrée Beaudry France Margaret Bélanger Louis P. Bélanger Jean-Pierre Belhumeur Patrick L. Benaroche Luc Bernier Neil L. Bindman Roanne C. Bratz Hélène Bussières Robert Carelli Jean Carrier Peter Castiel Edward B. Claxton

Stuart H. Cobbett, Ad.E. Marc-André Coulombe Glenn A. Cranker Peter J. Cullen Alix d’Anglejan-Chatillon Pierre-Paul Daunais Michel Décary, qc, Ad.E. Sterling H. Dietze Benoît C. Dubord Patrick Essiminy Jean Farley Jean C. Fontaine Laurent Fortier Franco Gadoury Michel Gélinas Patrick Girard

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Partners of the Firm as of February 1, 2012

Stephen W. Hamilton Sidney M. Horn Jean Marc Huot Warren M. Katz Dean P. Koumanakos Kevin Kyte Sophie Lamonde Jean G. Lamothe Pierre-Yves Leduc John W. Leopold Guy P. Martel Pierre Martel Yves Martineau David Massé Guy Masson Frank Mathieu Bertrand P. Ménard Éric Mongeau Charles Nadeau

271

Gayle Noble François H. Ouimet Frédéric Pierrestiger Eveline Poirier Richard W. Pound, oc, oq, qc, Ad.E., fca Vincent M. Prager Pierre A. Raymond Erik Richer La Flèche Steeve Robitaille William B. Rosenberg Howard J. Rosenoff André J. Roy Richard J. Rusk Jean-Guillaume Shooner Warren Silversmith Maxime Turcotte Claire Zikovsky

o t t awa Jeffrey Brown Susan M. Hutton Gregory Kane, qc

Stuart C. McCormack Nicholas McHaffie Justine M. Whitehead

c a l g a ry Glenn Cameron, qc Keith R. Chatwin Gary T. Clarke Leland P. Corbett Luigi A. Cusano Michael L. Dyck Frederick Erickson Bradley B. Grant W. Chipman Johnston Lisa A. McDowell

Michael Mestinsek Christopher W. Nixon Stuart M. Olley Greg Plater Douglas Richardson Craig A. Story David G. Weekes Michael B. Witt David M. Wood

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Appendix A

272

va n c o u v e r Michael S. Allen John F. Anderson David R. Brown Jonathan Drance Rachel V. Hutton Richard J. Jackson Argiro M. Kotsalis

Ross A. MacDonald Neville J. McClure Noordin S.K. Nanji Scott Perrin Hein Poulus, qc John E. Stark Daniel E. Steiner

london Richard J. Hay Derek N. Linfield

Sherry L. Roth

n e w yo r k Gordon N. Cameron Terence W. Doherty

Kenneth G. Ottenbreit

sydney Brian G. Hansen

Quentin Markin

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appendix b

Associates of the Firm as of February 1, 2012

toronto Enza Agazzi Sumbul Ali Monique L. Alicandri Vic Arora Alethea Au Rhoda Aylward Nicholas Badeen Matthew Bassani Steven D. Bennett Sultana Bennett Jordana Bergman Nili Birshtein Randall Boessenkool Andrew Bozzato Craig Broadhurst April Brousseau Matthew Cameron Janene Charles Kathleen Chevalier Sarah Clarke David Cohen Alex Colangelo Cara Cornacchia Lisa Culbert Andrew S. Cunningham Christen Daniels Mike Devereux

Vanessa Dimilta Patrick G. Duffy Jeremy Ehrlich Alon Eizenman Paloma Ellard Andrew Elliott Ruth Elnekave Kathryn Esaw Alison Forbes Aaron Fransen Christos Gazeas Javier Gonzalez Andrew Grant Jonathan Greenwald Ramandeep Grewal Rebecca Grosz Francesco Gucciardo Derrick Guo Carla Hanneman Greg Herget Jeff Hershenfield William Hockin Melissa Hogg Kaleb M. Honsberger Ruth A.C. Horn Samaneh Hosseini Casey Howell

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Appendix B

Amy Hu Matthew Hunt Jennifer Imrie Paul Karvanis Michael Kilby Ryan Kirvan James Klein Adam J. Kline Maria Konyukhova Jillian Kovensky Aaron Kreaden John R. Laffin Jill Lankin Adeline Lee Ryan C. Lennox Elise Lenser Colin J. Levere Laura Levine Jonathan Levy Shane Litvack Christopher D. Lofft Damian Lopez Shanin H. Lott Lindsey Love-Forester James Mangan Jonah Mann Timothy McCormick Lesley Mercer Ingrid Minott Jonathan Moncrieff Daniel Murdoch Kelly Niebergall Warren Ng Meaghan Obee Tower John O’Connor Kelly O’Ferrall

274

Martine Ordon Richard Owens Justin Parappally Emma Parker Katy Pitch Annie Pyke Jennifer Rafauli Paul Rakowski Anne Ramsay Sarah Rancier Tariq Rangwala Daniel Ratushny Frank Reda Neil Shapiro Marc Simonik Christopher Slade Kevin Smyth Ellen Snow Katrina Svihran Erica Tait Alexandra Urbanski Melissa L. Uster Vanessa Voakes Eric H. Wai Mark Walli Ashley M. Weber Anne Weintrop Lanette Wilkinson Courtney Wilson James S.F. Wilson Marc-André Wilson Jill Winton Gina You Anas Youssef Muneeb Yusuf Bradley Zander

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Associates with the Firm as of February 1, 2012

275

montreal Lev Alexeev Andrée-Anne Arbour-Boucher Daniel Arseneau Tina Aswad Jonathan N. Auerbach Sylvia Avedis Jean-Philippe Beaudet Dominic Bédard-Lapointe Christine Bergeron Alison Bier Paul Blanchard Nadine Boileau Dana Borshy Luc Boucher Guillaume Boudreau-Simard Olivier Boulva Maude Brouillette Donald H. Bunker Melissa Carew Amy Chao Maxime Charbonneau Judith Charbonneau Kaplan Adam Cieply Andrea Cleven Vanessa Coiteux France Comeau Cristina Darwish Marie-Claude David Michèle Denis Patrick Desalliers Nicolas Désy Corine Di Maria Tania Djerrahian Nathalie Duceppe Jean-Daniel Dufour-Neyron Marie-Ève Ferland Myriam Fortin Annick Gaucher-Paradis Julie Girard Hon. James A. Grant, pc, cm, qc Caryn Grass

Hon. Benjamin J. Greenberg, qc, C.Arb. Mathieu Halpin Sylvie Hébert Frédéric Henry Diana B. Ionescu Maxime Jacquin Catherine Jenner Philippe Kattan Sarah Kingsley Laurence L’Abbé Elizabeth Labrie Nathaniel Lacasse Julie Lacroix-Maillette Isabelle Lamy Rosalie Landry-Schönbeck Rebecca Laurin Kim Le Marie-Maude Lecours Josée Lefebvre Christine Legé Michel Legendre Éric Lévesque Matthew Liben Josée Massicotte Nathalie Mercier-Filteau Marc Miller Hadrien Montagne Maïté Murray Emmanuelle Naufal Nathalie Nouvet Frédéric Paré Aniko Pelland Dominique Perron Lydia Pham Caroline Plante Lana Rabinovitch Maria Reda Joseph Reynaud Michael L. Richards Michèle Robichaud

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Appendix B

France Rochon Anna C. Romano Laura Salvati Élise Sauvé Barbara Sheng Jason Streicher Johanne Tanguay David A. Tardif Diana Theophilopoulos Alexandre Thériault-Marois

276

Sylvie Thibault Louise Touchette Ma Ry Tran Vanessa Udy Luc Vaillancourt Danny Duy Vu Stephanie Weschler Laurie-Ann Willett Zev Zelman

o t t awa Paul Beaudry Nicole Brousseau David B. Elder William J. Fox Lawson A.W. Hunter, qc

Megan MacDonald Geoffrey North Ryan Sheahan Alexandra Stockwell

c a l g a ry Rose Anderson Kyle Banbury Kyle M. Brunner Gordon L. Chmilar Julie D’Avignon Evan Dickinson Amanda A. Field Kelly Galloway Benjamin S.P. Hudy

Nicole Lecours Yu-Tien Augustine Lu Cheryl Rea Kurtis Daniel Reed Aleksandra Rennebohm Chris S. Scherman Bradley G. Squibb Veronica Tang

va n c o u v e r Amyn Abdula Jesse Ahuja Angela Bespflug Michael L. Bromm Jonathan Buysen Carol Chestnut Annette E.F. Dueck Denise Duifhuis Deborah A. Fahy Lisa Hiebert Jennifer Honeyman Elizabeth T. Jawl

Robert Kiesman Eugene Kwan Natalie Marach Jonathan S. McLean Paula J. Price Shona Sinclair Jessica Sisk Roehle Jamie Templeton Elizabeth Thampy Lisa Trienis Gordon Turriff, qc Bruce D. Woolley, qc

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Associates with the Firm as of February 1, 2012

277

london Sandra Bates Andrea Crum-Ewing Kate DaSilva Jeffrey Keey

Katie McDonald Leigh Nicoll Robert L. Reymond Reshma Roomallah

n e w yo r k Viviana Beltrametti Walker Gawain Chan Eliza Dinale

Ralph A. Hipsher Charlie Lamb Marc-André Wolfe

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appendix c

Law Clerks and Staff Members with the Firm as of February 1, 2012

l aw c l e r k s Toronto Nancy Adler Carolyn Anger Diana Batcheler Lori Colasanti Michelle Coutinho Lynda J. Crago Ben De Los Santos Nadia deFreitas Sabina Delvecchio Amy A. Didrikson Theresa Fergusson Donna Froese Marco Garcia Franca Greco Erin Jennings Kristin Kightley Beatrice Lorusso-Taddeo Bobby Luong Reanna Maharaj Lisa Matchim Sarah Matthews Kimberley Newman Kayla Paglia Christopher Poirier Jennifer Rad

Belinda Raposo Connie Scott Vicky Simon Grace Walker Gail Yattavong Montreal Michel Bolduc Laurent Brissette Maria Chantzis Teresa D’Angelo Madeleine Émilie Desmarais Diane Desormeaux Judith Duguay Catherine Edwards Roger Forget Natasha Gangai José Guinta Julie Helms Marlene Kempthorne Chantale Leclerc Tricia Lees Lisa Maria Pannunzio Tommy Ponte Liliana Raffo Patricia Rivers

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Law Clerks and Staff Members as of February 1, 2012

Jessica Rodrigues-Cerqueira Émilia Stoute Antoine Stundner Patricia A. Tunstall Marie White Irene Wlodarczyk

Jennifer Kohle Raymond Milne Pamela Oster Shannon T. Pham Kelly Summers Vancouver

Calgary Paula Boltuc Carolina Goehler Jennifer Hawkey Laura Hubley Precious Ilagan Christine Jukes

Genora Collmann Shae Korres Emily C. Ma Veronica MacInnis Melanie Mohr Andrea Shaw

staff members Toronto Franca Abballe Katherine Aggett Zaid Ali Sabrina Allen Jane Almero Valerie Amadio Lyna An Stephanie Anania Dawn Anderson Kayode M. Andrews Karen Armstrong Catherine Asikis Che Balendra Donna Barrett Corette Bartley Vicki Bassett Danielle Bates Marivic Bernal Adriana Binder Alexandria Bittner Liz Black Melissa Bobyk Tanya Boldt

Fe Bolneo Mark Bouckaert Edemae Bourne Oscar E. Brea Mary Brock Jenna Brooks Kaitlin Brown Sarah Brown Matt Brydson Christina Burgos Lauren Burpee Karen Burridge Nancy Byer Da Feng Cao Joan Carr Lou-Anne Carr Sofia Casinha Carla Castillo Sertsis Rose Cecchetto Spenser Chalmers Lydia Chandra Amina Chaudhry Leonice Cheung Ivy Chu Vince Cina

279

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Appendix C

Gabriele Clynes Sandra Colangelo Gary Collins Ashlee Common Noelle Cormier Teresa Cravinho Tanya Cunliffe Ann Curryer Bev Cyr Mary Dagg Sandra Daher Anne Dawiczewski Lenna De Leon Janine Denney-Lightfoot Jonathan Dey Sandra Di Falco Sue Di Luca Enzo DiStefano Margarita Dobson-Smith Jinky Dominguez Haig Douglas Arsenia F. Dugenio Colin Duignam Anna M. Edwards Helen Edwards Lizanne Edwards Victoria Elkin Jennifer Fan Mylene Farand Cheryl Fath Anjum Fatima Katerina Faulkner Lauren Flack Margaret Flynn Shauna Forcht Katherine Foteeva Susie Freeman Jessica Freitas Vera Fritz Bonnie Fu Sean Gamble Christine Gascoyne Demetra Germenis

280

Jumi D. Gervacio Shannon Gilleland Michele Gillette Linda Gleaves Stephanie Gomes Lorena Gonzalez Heather Gordon Josephine Gordon Jill Grady Nadia Gravina Boer Michèle Grespan Wei Gu Margaret Gunraj Virginia Guo Jason Hachey Seble Hailu Lyle Halcro Jocelyn Hannah Patti Harrison Violet Hatzes Hailey Haughton Kayon Hay Alison Herron Loretta Hoi Tammy House Rose-Ann Hrenczuk Joan Hughes Kim Hulme Mohamed Hussain Katherine Hutchinson Lynn Iding Shelly Ilgner Diane Iliadis Carolyn Innes Helene Jackman Jennifer James Roshan Jiwani Leanne Joly Shawn Kelly Kathleen Kilpatrick Alishia Kirchner Maria Kolliopoulos Valentina Kontus

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Law Clerks and Staff Members as of February 1, 2012

Teresa Koren Paula Lacy Sandra Lad Darlene Larivière Cristina LaRosa Angela Lau Chandler Lauzon Diana Lawrence Ivy Lee Diana Lemdal Valda B. Lemonius Rosa Leonardelli Kaitlyn Lew Veronica Li Winny Wei-Hsuan Li Sean Lind Karen Linfield Kasia Lisiecka Jessica Liu Doris Loo Kelly Luis Minh Luu Dac Binh Ly Edmund Ma Dionne Malcolm Zaida Maranan-Mavroukas Jeffrey Marchese Evan Marquis Jen Marshall Christine Marshall-Smith Emmanuel Masih Kelli Masters Mary Masucci Alicia Maycock Meghan McCallen Karen McCullam Nadine McEvoy Dawna McIntosh Lorraine McIntosh Jeff McKay Samantha McLaughlin Jean McLeod Kimberley McPeake

281

Michelle Medeiros Matsuyama Robin Medeiros Doreen Mendes Caroline Middleton-Trimm Andrea Mihalick Genevieve Miller Mary Misevski Donald Misick Taletia Mohan Heather Moorhead Nancy Morosin Cathy Moss Yasmin Murji Liana Murphy Kami Murray Raj Namachandran Pamela Naraine Dean Nazir Marilyn Nelson Kimberly Nembhard Bev Nice Irena Ninkovic Wendy Norman Amanda Norton Mimi Nyandak Wendy O’Connor Barbara O’Kane Lauren Ondejko Rebecca Ormond Cathy Pamli Maria Pandeirada Mei Ki Pang Robin Paterson Elizabeth Pegas-Ferreira Wenyan Peng Lillian Piirsalu Denise Plamenco Shirley Pollard Eddie Porras Jr. Darlene Porter Kelly Potter Donna M. Proia Jennifer Punsalan

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Appendix C

Parthi Puvan Pam Racioppo Cedalia Raimundo Anabelle Stella E. Remigio James Rice Arielle Scobie Rinaldi Linda Roberts Andrew Rodomar Kristopher Rodrigues Geeta Rooplal Kim Rosenback Erik Rozenbergs Rowena Rubio Amanda Ruggieri Lutchi San Pedro Lucia Sangiuliano Priya Sasenarayan Sharon Saunders Britta C. Schuelein Michael J. Scott Ashley Scovell Leslie Selwood Yolanda Serradilla Edna Servos Amy Sevigny Colleen Shaughnessy Leanne Shaw Donna Shepherd Anita Shiels Nundini Shunthirasingham Mary Sibenik Dolores Sideris Vladanka Simic Ophia Smith-Campbell Steven Sousa Venky Srinivasan Gina Stamatopoulos Christine Starret Mark Steele Charmaine Stuart Staci Sudeyko Donna Sukman Jill Sutherland

282

Cathy Sweeney Mike Sylvester Tracey Tabone Vanessa Tagliaferri Michelle Taylor Tharma Thambyrajah Normand Theriault Shan Thirunathan Colleen Thompson Narrah Thuraisingam Gillian Topp Lori Trudel Doris Tsiakalakis Sarah Tutt Jerry Tynski Mariana Tzvetkova Sheila Van Spronsen Cindy A. Varcoe Kamila Vasin Marta Vaskevych Elizabeth Warden Cindy Wark Jennifer Watt Nancy Watts Andrea Weatherbie Kimberley Webber Eliana Wells Maureen Wiber Coleen Williams Nadene Williams Cicily Wong Tyler Wood Leslie Woods Liezl Ann Wu Farah Zafar Ani Zhai Frank Zhu Montreal Marie-Hélène Ah-Tong May Aina Suzanne Alepin

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Jocelyne April Nicole Arcand Laurent Audy Chris Barnett Marie-Gérard Barthélemy Louis Bathalon François Beauchemin Josée Beauclair Diane Beauclair Josée Beaudry Louise Beauregard Lynda Bédard Nathalie Bélanger Chantale Bélec Steve Bélisle Suzanne Benlolo Mélanie Bergeron Céline Bergeron Stéphanie Bernier Martine Bérubé Kathy Bidwell Laurence Bielza Johanne Bisson Marilène Bissonnette Lucie Blanchard Patrick Blanchet Marie-Pierre Bolduc Michel Bossé Claire Bouchard Sylvain Brosseau Natalie Brouillard Donna V. Brown Catherine Buteau-Boisseau Lorraine Calce Jocelyne Campeau Maria Carreira Michèle Carrier Linda Carrière Ana Cristina Carvalho Marie-Chantal Casey Nancy Chabot Nicole Chalhoub Stella Chan-Tin

283

Louise Chaput Colette Charest Rosemonde Chiasson Monique Chibok Carline Cinéus Sylvie Cournoyer Lise Craig Caroline Croteau Louise Cunningham Diane Davantin Gabriella De Alexandris Annik De Brouwer Anna Jeannine De Garie Denise De Paola Mara De Poli Adele Del Torto Francine Dépôt Danielle Desharnais Dania Dib Erika Dion Nataly Domingo Mireille Doodnath Lyne S. Drolet Jean Dufour Philippe Dugas Isabelle Dupuis Joyce Easton Olivia El Boustany Laila Fedele Tony Figueiredo Mickaël Flambry Catherine Forant Josée Forest Chantal Fortin Jessica Fournel-Charbonneau Huguette Fournier Élyse Gagnon Laurence Galipeau-Minotto Chantal Gambier Sylvie Gauthier Annette Gauthier Martine Gauthier Robert Gauthier

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Cathy Giguère Maryse Giroux Dominique Giroux Silvana Giulione Lucie Godin Kathleen Gore Carole Goyette Lynn Grassby Mélissa Gravel Suzanne Grenon Joan Grenon Styliani Grigorakis Michelle Grimard Elisabeth Grosleau Mario Guernon Anne-Marie Guertin Monique Guilbault Marie-Erika Gutt Naya Hachem Diane Hall Gail Harris Rachelle Hébert Scott Holland Danka Hryn Gaétan Iavicoli Josée Jodoin Nathan Johnson Phatthira Kaewlek David Kergoat David Kieft Jenny Knafo Helma Hortense Kwedi Catherine Lachance Sylvie Lacoursière Geneviève Ladouceur Martine Lafontaine Carole Lafrance Noëlle Laissy Madeleine Lanctôt Véronique Langelier Karine Langlois Alain Lapierre Stéphanie Larche

284

Donna Larivière June Larivière Michelle Larocque Steve Larouche Karine Larrocque Marie-Claude Lavallière Lise Lavoie Huguette Lebeau Roger Leblond, Jr. Louise Marie Leclerc Andrée Lefebvre Martin Légaré Diane Legris Marina Lemarchand Yves Lemieux Robert Lemieux Lyna Lemyre Rita Levig Jennifer Li Hanane Lyakhloufi Marco Magini Frédérique Malka Andréa Maltais Françoise-Hélène Marceau Nicole Marquis Daphnée Mathieu Ann Medeiros Monica Mendes-d’Abreu Aline Mercier Linda Mill Marie-claude Milot Caroline Mintas Amine Mokhtar Marie-Louise Myrthil Sébastien Noiseux Boris Panov Faye Papazian Andrée Paquette Mirabel Paquette Linda Passero Françoise Pazzi Yvon Péloquin Renata Petruccelli

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Francesca Petti Dolores Phillips Alounsak Phithaksounthone Geneviève Picard Nelson Pires Lisa Poitras Lucia Pollice Barbara Popowich Louis Potvin Johanne Proulx Céline Proulx Diane Quesnel Assunta Reda Linda Ricci Manon Roberge Johanne Roberge France Roberge Sonia Rousseau Christine Roy Ginette Saintus Ana Salamanca Catherine Sauvé Sylvie-Anne Scarinci Martine Sébire Manon Sergerie Nicole Sirois Rosanna Spinale Ginette Stakou Olga Stefanyszyn Gordon Stojanov Louise Thériault Diane Therriault Lucille Thibaudeau Valérie Thibodeau Jamal Thomas Martine Touré Isabelle Tremblay Jocelyne Tremblay Danielle Tremblay Sylvie Trépanier Lina Tropiano Martine Trudeau Vincent Trudeau

285

Odette Trudel Catherine Tsikalas Susan Turchetto Marie-Pier Vachon Andrée Vallerand Chantal Veillette Alexandra Vert Josée Viel Christiane Vounang Mary Voutselas Vanessa Yow Cho Choy Prince Zongwe D. Ottawa David E. Brown Tina Campagna Sonja Capustinsky Carmelina Carlucci Estella Chan June Dowd Nancy Hopkins Doreen Laviolette Catherine Markadonis-Menard Crystal McConnell Holly McCormick Avril Milne Kim Poulin Marg Regensburger Pamela Sauve April Smith Trudy St. John Calgary Eliza Arentewicz Susan L. Arnison Karen Baldwin Hali Bible Allissa Blondin Andrea Boyle Lorrelei Breton Angela Burger

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Mary Carpenter Irene Chan Tamara Charlton Malen Chea Hayley Clarke Heather Evans Sondra Gelfant Patricia Gibbar Robyn Grantham Linda Greer-Irofte Ryan Hagen Kim Johnson Rebecca Kiss Judy Klincker Peggy R. Kun Jessica McBride Patricia McLaren Wendy Morel Wendy Nash Cindy G. Nelson Cathy Neufeld Rina Novello Erin O’Byrne Vanessa Osgood Jessica Presnail Sandra Ramirez Liana Reschke Joanie Salmon Roxanne R. Skopyk Susan Stepien Sarah Stone June M. Symyrozum Marian Talaga Richard Tanedo Sunshine Taylor Eneida Tomani Joyce Tran Brianna Trudeau Trinh Vu Zena Wilbraham-Mafrica Kelsey Wong Jin Wu Alicia Yizek

286

Vancouver Jagjit Bassi Emily Bawtinheimer Katy Beer Sara Berner Debi Berthiaume Peggy Chau Shannon Daly Jeanette Doerksen Jim Foo Lisa D. Geosits Leah Gibbons Chelsea Hamel Sarah Hillier Jana Ingaldson Mizuna Kawai Anna Kilford Michelle Knaut Rita Koivunen Farinaz Kovacevic Edrita Kumar Karyn Legg Lily Ling Diane MacDonald Monica Majer Donna R. Martin Teresa McLarnin Jacqueline Morgan Lynore K. Mudry Erin Penway Dan Phung Angelina E. Rodrigues Grace Jennifer Rosales Susan E. Rotzien Lucy Seidelmann Kristi Smitas Marianne Stoody Augustina W. Tang Judy Tilby Pearl Velono Linda Vos Atifa Wafa

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Sheryl Walker Jennefer L. Ward Stephanie M. White Xavier M. Williams Eliza K. Yuen Jenny Zhang London Andre Atherton Francesca Forde Joy Laven Ivonne Lockhart Smith Carole Anne Manning Jan Martin Kay McDonald Sara-Leigh Santamaria Claire Stott Helen Watakila

New York Lynette Benitez Mary Cobb Michele Murphy Jennifer Quan Beatrice Reece Lauren Torres Sydney Grace Chung Ian Foster

287

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abb Grain Ltd., 40 Abdula, Amyn, 18, 258 AbitibiBowater, 68, 95, 133, 136 Abitibi group, 127 ace Aviation Holdings Inc., 128, 131 Adastra Minerals Ltd., 130 advertising, 223, 249; for business in China, 15 Africa Governance Initiative, 24 Ahmad, Rafiullah, 165–6 aig, Inc. (American International Group), 135, 143 aim/Trimark, 143 Ainslie v. CV Technologies Inc., 142 Airborne Entertainment Inc., 129 Airboss of America Corp., 168 Air Canada, 35, 126, 131, 143, 184; Mexicana court case, 161–2; privatization, 11, 92–3; restructuring, 8, 29, 32, 126, 185 AirSource Power Fund i lp, 127 Akin Gump, 57 Alberta Investment Management Corp., 136–7 Alcatel, 130 Alcoa Inc., 78, 131–3 Alexander-Cook, Kim, 15 Algoma Steel Inc., 36, 131 Allen, Michael, 69, 111, 257 Alliance Atlantis Communications Inc., 36, 150 Allianz ag, 127 Alliston, Andrea, 37, 234–6, 238, 246 Alstom Canada Inc., 129, 166 Alstom S.A., 136 AltaGas Ltd., 56, 127, 136, 138

Al Whalid, Prince, 9, 52 American banks, 84, 86, 100 American Bar Association (aba), 23–4, 178 Ameritrade, 90, 128, 130 Anadarko Petroleum Corporation, 129 Anatolia Minerals Development Limited, 135 Andersen, Harry, 56, 60, 65 Anderson, John, 68, 70–1, 96, 217, 257 Angus, David, 144 Angus, Tookie, 44, 69, 73–4 Anthony Henday Drive project, 111, 133 Apax Partners & Co., 125, 130, 137 Apple Inc., 42, 79, 139 Aquilini, Francesco (and family), 73–6, 167 Arar, Maher, 157 articling students, 34, 188, 229; guaranteed employment for, 48, 240 Art of War, The (Sun Tzu), 170 Assante Corporation, 30 asset-backed commercial paper (abcp), 38–9, 92, 100–2, 167 Association of Corporate Counsel (acc), 23 Astral Media Inc., 78, 125, 132 Athabasca Oil Sands (aos), 40, 59–60, 134 Atix Laboratories, Inc., 127 Atlas Tube Inc., 123–4, 128, 130 Aurelian Resources Inc., 133 Autoroute-25 project, 111, 132 Aviva Canada Inc., 133 Aviva plc, 130

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Axcan Pharma, 133 Baffinland Iron Mines Corporation, 42–3, 136, 139 Bahamas government, 86 Bain Capital llc, 33, 126–8, 130, 137 Baja Mining Corp., 69–70 Ballard Power, 79 Bank of Canada, 81 Barbeau, Marc, 22, 50, 53, 176, 217, 228; involvement in AbitibiBowater re-organization, 68, 95; Russian yacht meeting, 195–6 Barclays Bank plc, 38, 133, 167 Barrett, Roderick, 36, 220–1; baseball theory, 33–4; term as managing partner, 27, 31–2, 40–1, 43–5, 239 Bastarache Commission, 165 Bauer Sports Performance Inc., 138 bce Inc., 36, 82, 125, 132; privatization plan, 9, 98–100 bc Gas Inc., 68, 126, 128 Bean, Chris, 91 Bear Lake Gold Ltd., 143 Beaudry, Marie-Andrée, 47, 50, 184 Beedie, Ryan, 75 Bélanger, France-Margaret, 256 Bélanger, Louis P.: as chair of km committee, 234–5; litigation practice, 47, 153–4, 158, 160–1, 163, 169 Belhumeur, Jean-Pierre, 50, 256 Bell Canada, 43, 78, 97, 134–5, 138–9; bondholders, 99; Vidéotron dispute, 158–9 Bell Centre family night, 52 Belovich, Donald, 20, 256 Bema Gold, 36, 128, 132 Benaroche, Patrick, 22, 50 Bernier, Luc, 47, 50–2, 184, 256 Bertelsmann ag, 127 bfi Canada, 32 bhp Billiton, 41, 80, 83, 108–10 Bibic, Mirko, 77–9 billing. See legal fees Binder, Joel, 31, 33, 38, 96–8 Bindman, Neil, 51 Birch Hill Equity Partners, 125, 133, 136 Black Economic Empowerment, 84 Blackfriars Corp., 126 Blackstone Group, 130 Blair, Tony, 24

290

Boleo Mine (Mexico), 70 Bombardier, 126, 166 Borealis, 129 Borealis Infrastructure Management Inc., 126 Bowman, Donald, 26, 176 bp Canada, 60 bpo Properties, 33, 128 Braithwaite, William (Bill), 32–4, 40–1, 109–10, 256; counsel for bce, 36, 98; counsel for Ontario Teachers’ Pension Plan, 29, 43; global activities and transactions, 14, 19, 105–6; as incoming chair, 53, 262; representation for Teck, 38–9, 70 Breen, Elizabeth, 31, 36 Bregal-Burchill, 130 Bremerman, Eric, 20–1 Bre-X, 44 Briggs & Stratton, 143 British American Tobacco, 43, 167 British Columbia, 66–8; public-private partnerships (ppp), 111; treaties with First Nations, 72, 115 British Columbia fast ferries, 74 British Courts, 148–9 Brock, Mary, 233, 235 Brookfield Asset Management Inc., 130 Brooks, Kim, 86, 184 Brown, David, 36, 38, 75–6, 257 Brown, Jeffrey, 77–8, 80, 83, 257 Brunner, Kyle, 63 Burkett, Michael, 189–93, 197 Burton, Mark, 77–8 Burton, Robert, 71 Business Corporations Act (Quebec), 50, 237 Business Development Bank of Canada, 126, 163 business principles, 243 Bussières, Hélène, 50, 256 Byers, David, 29, 33, 39–41, 43, 190; litigation practice, 141–2 cae Inc., 127 Calgary office: China initiative, 59–60; community involvement, 62–3, 253; Friday morning basketball games, 63; growth, 54; impact of recession on, 64–5; leadership transition, 63–4; marketing, 223; midstream facilities transactions, 60; opportunities and

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challenges of, 65–6; recruiting, 54–6; representation for foreign investors, 56–60; Stampede party, 61–3; strategic plans, 53, 199; visits from Russian investors, 58–9 Cameron, Glenn, 22, 54–5, 57–61, 64, 257 Cameron, Gordon, 22, 36 Canada Elections Act, 156 Canada Life, 29, 126 Canada Pension Plan Investment Board, 97, 135 Canada Tax Service, 214 Canada (Commissioner of Competition) v. Labatt Brewing Co., 36–7 Canadian Apartment Properties reit (Capreit), 32, 121, 128, 137, 164 Canadian Association of New York, 89–90, 258 Canadian banks, 38, 102, 120–1, 126 Canadian Bar Association, 83, 208, 242 Canadian business sector, 125–6, 139 Canadian Charter of Rights and Freedoms, 146 Canadian icons, 8–9 Canadian Imperial Bank of Commerce (cibc), 38, 78, 91, 121–2, 131, 133; class action case, 143 Canadian National Railways (cn), 8, 93–4, 131 Canadian Pacific Railway (cpr), 5, 9, 94 Canadian Radio-television Telecommunications Commission (crtc), 82, 158–9 Canadian Risk Management Guide, 144 Canadian Securities Law, 236 Canadian Storage Media Alliance, 167 Canadian Tire Corporation Limited, 83, 137 Canadian Waste Services Inc., 122–3 Canfor, 67–8, 127–8 Canico Resources Corp., 105, 128 Canwest Global Communications, 36, 41, 82, 135 capital: access to, 4, 51, 93, 120–1; foreign, 6; intellectual, 234, 238; markets, 7, 96–7, 116 Cara Holdings Ltd., 126 Carlyle Group, The, 89, 124–5, 127, 132

291

Carman, Michael, 41, 101, 179–80 Carmona, Eric, 19, 31, 38, 43 Carrier, Jean, 117 Cascade Investment, 131–2 Castiel, Peter, 17, 50, 188–9 Central Park Canadian Invitational Hockey Tournament, 90–1 Cerberus Capital Management, 129, 132 chair, role of, 260–1 challenges, xii, 230, 239, 259–2; of bidding process, 209–10; of global operations, 11, 13, 15; for women lawyers, 247–9; for young lawyers, 245 Chalmers, Kathryn, 38, 141, 144, 147, 243 Charette, Lyse, 220–1 Charles River Laboratories International, Inc., 128 Chatwin, Keith, 56, 60, 63 checklists, 262–5 Cheung Kong Infrastructure (cki), 59, 131 Childs v. Desormeaux, 145 China, 13, 59, 79; Hong Kong, 14–16; Olympic Games (2008), 13 China initiative, 13–17, 59–60 China National Offshore Oil Corp. (cnooc), 17, 59 Chinese National Petroleum Corporation (cnpc), 16, 57–8 Chmilar, Gordon, 19–20, 86 chum (Centre Hospitalier de l’Université de Montréal), 111, 138–9 Ciardullo, John, 36, 105–6, 110 Ciena Corporation, 39, 42, 139 Cineplex Entertainment lp, 166 Circuit Mont-Tremblant, 159 Cirque du Soleil, 104, 134 Citadel General Insurance Co. v. Vytlingam, 145–6 citic Resources, 59 City of Toronto, 122 Clark, Richard, 33 Clarke, Gary, 56, 257 class actions, 141–4, 155 Club Penguin, 132 cnpc International, 16, 134 Cobb, Larry, 187–8, 190, 195 Cobbett, Kip, 35, 53, 186, 208, 244, 246; as managing partner, 50, 200, 239

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Collins, Paul, 20, 78, 80, 186 Collins & Aikman Products Co. v. The Queen, 168 Colson, Dan, 87–8 commercial mortgaged-backed securities (cmbs), 121–2 communications technology, 214–17; security for, 231–2 community involvement: of Calgary office, 62–3, 253; donations policy, 255, 258–9; memorial awards and fundraisers, 175, 179–81; mentoring and career development, 254–5; of Montreal office, 253; of New York office, 90–1; of Ottawa office, 79–81; pro bono activities, 117, 213, 253, 255, 258–9; sponsorship, 18, 90, 253, 258–9; of Toronto office, 253; of Vancouver office, 253; volunteer work, 256–8 Companhia Vale do Rio Doce (cvrd). See Vale Companies’ Creditors Arrangement Act (ccaa), 93, 95; restructuring plan, 38, 101–3, 135 competition, 7, 219; gasoline price fixing, 155; group, 78, 80, 82, 221; law, 83, 174, 257; between management in different offices, 199; with other law firms, 244–5; for resources, 14; in shoe sales, 151–2; in wine sales, 152; for work, vii, 87, 209–10 Competition Bureau of Canada, 78, 93, 155, 186 Concorde overpass investigation (Quebec), 157 confidentiality of journalistic sources, 154–5 conflict management, 207–9, 230–1 conflicts of interest, 92, 200, 207–9 Conservative Party of Canada, 156 Consolidated Bathurst, 95 Constitution Act, 48 Continuing Legal Education (cle), 81, 222, 225, 232–3 Copthorne Holdings Ltd. v. The Queen, 168 Copyright Board, 82 Cornell, Marjorie, 49n2, 169 Corporate Social Responsibility (csr), 250, 255. See also community involvement Côté, Suzanne, 47, 50, 165, 184, 186

292

Coulombe, Marc-André, 22, 50 credit default swaps (cdss), 100–2 Credit Union Central of British Columbia, 132 Creo Inc., 71, 129 crisis management, 164–5 cross-border work (Canada-US), 12, 86, 88–9, 95 ctvglobemedia, 41, 138 Cullen, Peter, 144, 256 Cunningham, Andrew, 235 Cusano, Lou, 54–5, 61–4, 168 Cusinato, Curtis, 17, 39, 91, 122–5, 197 Cuthbert, Lorna, 22, 40, 252 cv Technologies, 40, 142, 167 Cymbria Corporation, 133 Dalkia, 138 d’Anglejan-Chatillon, Alix, 20, 256 Daunais, Pierre-Paul, 152 David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co., 144 Davies Ward Phillips & Vineberg, 79, 98–9, 102, 112 Davis, Jamie, 88, 102 deaths. See departures and losses Décary, Michel, 47, 156–7 Delfino, Rocky, 34, 122 Delgratia, 74 departures and losses, 29, 41, 171–81; career changes, 65, 182–4, 186; retirements, 41, 81, 184–6 Desalliers, Patrick, 156 Devereux, Mike, 110, 192–3 Devon Canada Corp., 168 Dickinson, Evan, 168 diversity: committee, 42, 250, 252, 255; and First Nations groups, 115; and gender, 248; recognition for best practices in, 252, 255; recruitment and identification as part of, 254. See also community involvement Dofasco, 123–4 Dollarama Inc., 127, 135–7 Dolores Mine (Mexico), 71 Donahue & Partners, 54 Doss, Denise, 233 dot-com crash, 69, 96–7, 234 Doyle, Bill, 108–9 Drabinsky, Garth, 94 Drance, Jonathan, 23, 68, 70, 96, 257

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D’Silva, Alan, 31, 40, 43, 256; litigation practice, 141–2, 144–6, 150 Dubord, Benoit, 100, 103–4 Duke Energy Corp., 68, 129–30 Dundee Corporation, 132, 135 Dunn v. Chubb Insurance Company of Canada, 146–7 Dunphy, Sean, 32, 58, 141, 185–6 Durand, Ron, 52 Dyck, Michael, 56 Eastern European offices, 10–11 Eastern Platinum, 143 economic model, 240–2 “E-Curve,” 38–9 edf en Canada Inc., 113, 137–8 eFunds Corp., 126 Ehrlich, David, 31, 97 Ehrlich, Jeremy, 192–3 El-Ad Group, 121, 136 Elections Canada, 156 Electronic Data Systems Corporation, 133 Ellerforth Investments, 167 Elliott, Andrew, 236 Elliott, Fraser, 4, 140, 215, 239, 259; art collection, 88, 177; business philosophy, 27; death, 33, 175–7; move to Toronto, 5, 26, 176; personality traits, xii, 175 Emes, Barry, 54–5, 63–4, 184 emotional transactions, 107–8 Endeavour Financial, 69–70 Endeavour Mining Corporation, 137 End of Lawyers?, The (Susskind), 42 Energy Metals Corporation, 69, 71 Eni S.p.A., 120, 133 enmax, 54 Entertainment Properties Trust, 122 Erickson, Frederick, 60, 64 Essar Global Ltd., 36, 131 Essar Group, 106–7 Essar Steel Algoma Inc., 167 ethical conduct, 243 ethical walls, 208–9, 216, 231 e*trade, 133 Federal Court of Appeal, 147, 156, 167–8 federal government, 72, 97, 109, 154, 164; jurisdiction of, 48 FedEx, 143 Ferguson, Ron, 22, 190–1, 197, 256

293

financial crisis (2008), 37–8, 51, 69, 90; and billing concerns, 237, 245–6; and difficulties for London office, 18; impact on banks, 100, 120–1 Financial Post, 55 financial regulation, 86–7 Finkelstein, David, 26–7, 29 First Nations: British Columbia treaties with, 72; legal representation for, 115, 253–4 Flaherty, Jim, 97 FLSmidth & Co. A/S, 103 Foamex International, Inc., 134 Fontaine, Jean, 50, 152 foodservice industry, 123 foreign banks, 101–3 foreign investment, 41, 139; aboriginal rights and, 72; group, 82, 186; in mining sector, 68–71, 92, 116–18; in Mozambique, 117; in oil and gas sector, 56–60, 119–20 Foreign Investment Review Act, 6 forest industry, 67–8 Fortis, 130, 132 446 Holdings Inc., 41 Fournier, Mr Justice Jacques, 165–6 Four Seasons Hotels, 9, 122, 132 France initiative, 20 Francisco Partners, 132 Franco-Nevada Corp., 36, 116, 132 Fransen, Aaron, 190, 197 Freeman, Susie, 187–8 Freiheit, Mortimer, 50, 140, 150–2 Future Foam, 143 Gadoury, Franco, 50–1, 184 Gaglardi, Tom, 74–6 Gagné, Maxime, 156 Garneau, Marie, 195 Gauthier, Robert, 217 Gélinas, Michel, 20–3, 104, 107–8 Genband, 42, 139 General Motors of Canada, 39, 41 Gennium, 150–1 German initiative, 20–1 Giardullo, 41 Gillet, George N., 134 Glen Dhu Wind Power, 137 global initiatives, 4, 11–12; with China, 13–17, 59–60; with France, 20; with Germany, 20–1; with India, 18–19; international networks, 24; with Israel, 19; with Latin America, 19–20;

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in the Middle East, 17; Rwanda seminar, 24. See also London office; New York office; Sydney office globalization: Calgary market and, 223; firm’s business model/strategy on, viii, xii, 7, 11–12, 44, 224; and free trade, 219; and the practice of law, 10–11, 261 Globe and Mail, 97, 138, 154, 157 gmp Securities, 207 Gold Fields Limited, 129 Goldenberg, Eddie, 79 Golden Gate Private Equity, Inc., 134 Goldman Sachs, 22, 36, 118, 129, 131 Gomery Commission, 153, 165 Goodmans, 102 Gordon, Sonny, 50, 83, 95 Gordon Food Services, 143 Gottlieb, Myron, 94 Government of Canada, 32, 128, 137. See also federal government Grant, Bradley, 21, 56, 60, 63, 257 Grant, Jim, 29, 53, 73, 185, 257 Grant Forest Products, 136 Grbesic, Evan, 256 Great Lakes Hydro Income Fund, 96 Great-West Life, 29, 126 “Green 30” organizations, 256 Grewal, Ramandeep, 235–6 Griffiths, Arthur (and family), 74–5 Grottenthaler, Margaret, 37, 233–5, 256 Grupo Bimbo, S.A.B. de C.V., 132 Halcro, Lyle, 219, 222 Halton Healthcare Services/Oakville Hospital development, 43, 139 Hamilton, Peter, 38, 256 Hamilton, Stephen, 113, 156–7 Hansen, Brian, 11, 14, 59, 66, 91 Harbell, Jim, 22, 29, 113, 256 Harbinger Capital Partners, 36, 56, 130 Harrison, Doug, 144 Harrison, Hunter, 94 Harvey, Fred, 182, 184 Hay, Richard, 18, 86–7, 258 Hébert, Sylvie, 49, 235–6, 238 Helios Partners, 228 Hello magazine, 87 Henderson, Philip, 21, 38, 88, 101 Hess, Milton, 41 Hines reit, 121 Hochschild Mining plc, 136

294

Hogan, Robert, 16, 103–4; judicial appointment, 182–3 Holgate, David, 60, 65 Hong Kong, 14–16, 59; office, 10–11, 14, 16 Hong Kong Electric (hke), 59 Horn, Samantha, 23, 256 Horn, Sidney, 50, 169 Hosseini, Samaneh, 102 hotels, 9, 121–2, 129, 132 Howard, Peter, 34–5, 38, 40, 102, 141; Livent defence, 94; representation for Frank Stronach, 34–5, 41 hsbc Canada Bank, 137 Hudson’s Bay Company (hbc), 38, 83, 122, 133 Hugessen, Jill, 184 Hunter, Lawson, 22, 41, 80–3, 110, 186, 257; departure from firm, 29, 31, 77–8, 199 Huot, Jean-Marc, 47, 50, 96, 98, 100 Husky Energy Inc., 136 Hutton, Susan, 41, 77–8, 80, 82–3, 257 iamgold Corporation, 129 icici Bank, 38 ifc Forum, 87 inadvertent disclosure, 201–2 inbound/outbound work, 7–8, 11–12, 176, 188; from Germany, 20–1; from the uk, 17 Inco, 105–6, 116, 130 income trusts, 68, 96–8, 164 India initiative, 18–19, 115 ineos Group Limited, 129 Infineon Technologies, 38, 143 Infrastructure Ontario, 40, 111, 135–6 infrastructure projects, 51, 114–15, 122, 135–8; bridge rehabilitation in Quebec, 157 ing Canada, 40, 127 ing Real Estate, 130 ing Summit Industrial, 136 Innes, Bill, 233 “instant” generation, 261 Insurance Bureau of Canada, 145–6 Intact Financial Corporation, 43 Intel Corporation, 136 intellectual property, 79, 81–3; in shoe design, 151–2 International Financial Law Review, 83 International Senior Lawyers Project, 24, 117

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Inter-Pacific Bar Association (ipba), 23–4 interprovincial law partnerships, 176 investment bankers, 18, 22, 96 Investment Canada Act, 6, 80, 110, 186 Invest reit, 121 Iraq Airways Corporation (iac), 148–9 Israel, 19 Jackson, Richard, 72–3, 115, 257 Jackson, Karen, 256 James, Raymond, 20 jll Partners, Inc., 167 jmc Steel Group, 123–5 John Hancock Financial Services, 126 Johnson Inquiry, 157 Johnson & Johnson, 82–3 Johnston, Barbara, 55 Johnston, Chip, 65 Johnston, Governor General David, 242 joint ventures, 20, 114, 116 Jones Day, 24 jp Morgan, 22, 86, 102, 124–5 jsc Atomredmetzoloto (armz), 118–19 jsw Energy Limited, 136 judicial disbursements, 160–1 Kane, Greg, 76–7, 81–3, 257 Kangles, Nick, 55 Kasirer, Nicolas, 184 Katz, Warren, 20, 51 Kay, Katherine, 35–6, 38, 42–3, 141, 144 Kellerman, Jay, 14, 24, 42, 112; as managing partner, 43–4, 98, 239 Kelso & Company, 131 Kerney, Raph, 21 Key Equipment Finance Canada Ltd., 30 Keystone Oil Pipeline, 120, 132 kg Display Co. Ltd., 143 Kiewit Development Company, 132 Kingdom Hotels International, 122, 129, 132 Kingfisher plc, 126 Kinross Gold Corp., 36, 41, 132–3 kkr, 33, 128 Klaassen, Doug, 31, 121 Kloppers, Marius, 108–9 knowledge management (km), 8, 37,

295

49, 199, 216; committee or group, 222, 234–6; early years of, 233; initiatives, 238; integrated responses, 237; Intranet (stella), 15, 21, 221, 234–5; practice support, 236–7; strategy, 232–4, 238 Koch Industries, 126 Kolers, Eliot, 40, 144 kores (Korea Resources Corporation), 69–70, 137 Koumanakos, Dean, 191, 194 kpmg, 75, 100, 126, 220; benchmarking survey, 199 Kraus, Dean, 22, 40, 65 Kroft, Jason, 101, 256 Kruger Inc., 130 k & s ag, 90, 134 Kubesh, Donald, 79, 81, 83 Kuwait Airways Corporation (kac), 147–9 Kwan, Eugene, 115, 257 Kyte, Kevin, 176, 235 L.F. Investments, 136 labour unions, 66–7 Lack, Matthias, 21 Lafarge, 131 Laidlaw International, 131 Laise, Daniella, 236 Lakeport Brewing Income Fund, 36–7, 167 Laliberté, Guy, 104 Lalonde, Marc, 185 Lamer, Right Honourable Antonio, 80–1 Landry-Schönbeck, Rosalie, 156 Lang, Adrian, 38, 43, 195, 256 Langlois, Martin, 43, 96 language barriers, 13–14, 16 Lantz, Calvin, 35 Latin America initiative, 19–20 Laurin, Marc, 180–1 Lawrence, Diana, 39, 220–1 Law Society of Upper Canada, 30; Justicia Project, 250 lawyer-client relations: client expectations or demands, viii, 35, 215, 261; confidentiality in, xi, 231–2; duty of loyalty, 206–7, 210–11; practice support for, 236–7. See also legal fees Lebel-Grenier, Sébastien, 184 Leblanc, Daniel, 154–5 Lederman, Sid, 36, 140

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Lefebvre, David, 14, 55, 59–61 legal fees: alternative billing arrangements, 43, 114, 228, 241–2; estimates and budgets for, 246–7 Légaré, Martin, 222 Legge, Jennifer, 30 Lenovo Group Ltd., 128 Leopold, John, 50, 183–4, 186, 189, 256; global activities, 12, 16–17, 20– 1, 23–4 Lesaunier, Pierre-Louis, 168 Levinson, Dan, 234–5 Lexpert Deal of the Year: rankings for 2004, 32; rankings for 2005, 33; rankings for 2006, 35; rankings for 2007, 36–7; rankings for 2008, 38, 103; rankings for 2009, 39–40; rankings for 2010, 41; rankings for 2011, 42–3, 111 Lexpert magazine, 76–7, 83, 111, 169 Liberal Party (Quebec), 165 Liberty Mutual Group, 166 Lihir Gold Limited, 136 Li Ka-shing, 13, 66, 119 Lindsay, Don, 70, 106 Linett, Amanda, 87, 118–19, 192 Linfield, Derek, 20–1, 84–6, 258 Lips, Joerg, 21 Lisin, Vladimir, 124 litigation, 38, 113, 166–8, 170, 185, 261; Air Canada-Mexicana case, 161–2; Alstom win against stm, 166; bce Inc. privatization case, 98–9; Bell Canada-Vidéotron wiring dispute, 158–9; Circuit Mont-Tremblant noise disturbance case, 159–60; class actions, 141–4; election cases, 156–7; on family disputes, 157–8; group, 73– 6, 79, 82, 144, 169; insurance- and tax-related cases, 145–7, 160–1, 168– 9; Kuwait Airways Corp.-Iraq Airways Corp. case, 147–9; Matco and rona shareholders case, 162–3; Michel Vennat’s dismissal case, 163– 4; Motion Picture Distribution Inc. competition case, 150; in Quebec, 140–1, 150–5; Shama Textile case, 165–6; Sopinka Cup competition, 19; sports cases, 149–50; US, 141 “Litigation Unleashed,” 30, 144 Littlejohn & Co., 83, 135 Livent, 94

296

Livingston International Income Fund, 128, 130, 134 lockstep principle, 8 Loewy, Victor, 150 London office, 10, 17–18; affiliation with Canadian Club, 87; fortieth anniversary party (2009), 88; global presence of, 83–4; international component of, 86; legal partnership structure, 88; management, 84; offshore advising, 84, 86–7; private capital practice, 86–7; representation for South African mining companies, 84– 5; support for Canadian arts, 87–8 Loring Ward International Ltd., 30 Lott, Shanin, 39 Lowe’s Companies, Inc., 34, 122, 130 ls-Nikko, 69 Lukoil Overseas Holdings Ltd., 57, 129 Lumbermens Mutual Casualty Co. v. Herbison, 145–6 Lutes, Ralph, 70 Lyons-King, Catharine, 219–20 “m & a Activity in Canada,” 15 MacDonald, Ross, 72–3, 89 MacDonald Estate v. Martin, 206 MacDougall, Ray, 19 MacKay River and Dover projects, 40, 59, 134 MacKenzie, Daphne, 29, 40 MacMillan Bloedel, 67 Macquarie, 91, 111, 132, 137–8 Madison Dearborn Partners, 36, 98 Magic Circle, 17, 20 Magna International Inc., 30, 36, 41 management: benchmarking survey, 199; bidding process, 209–10; client loyalty, 206–7, 210–11; committee, 43–4, 123, 198; conflict management process, 207–9, 230–1; corporate directorships policy, 212–13; corporate governance, 198, 200, 212; corporate services, 217–18; document management system, 204, 231; duty of confidentiality, 201–3, 231–2; inadvertent disclosure, 201–2; information technology system policy, 203–4; leadership transition, 199–200, 239; limited liability partnership (llp), 200; national practice groups, 200; paralegal program, 218; philosophy and princi-

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ples, 6, 27, 200; publications policy and flagship publications, 213–14; quality assessment for mandates, 210, 231; retirement policy, 224–5; social media policy, 204–5; strategic plans, 198–9; systemization of processes, 201; technological tools/advances, 214–17, 221, 251; use of retainer and termination letters, 210–11. See also knowledge management (km) Mantra Resources, 118–19 Maple Bond, 36, 131–2 Maple Leaf Foods, 78 Maple Leaf Sports and Entertainment, 43, 139 Maputo, 117–18 Marciano, Georges, 152–3 Maritime Radio Communications System, 138 marketing: in China, 14–15; Continuing Legal Education (cle), 222; firm logo, 220; in France, 20; group and departments, 178, 219–24, 237; publications, 213–14, 221–2; systematic approach to, 8; US strategy, 21–3; website, 220–1. See also community involvement Market Regulation Services Inc., 206–7 markets: Calgary, 53, 64–5; Canadian, 100–3, 223, 231; Chinese, 14–15, 59; foreign, 4, 11–12, 113; German, 20– 1; Montreal, 26; Ottawa, 78–9, 83; Toronto, 29, 44, 244; uae, 17; US, 21–3, 91 Markin, Quentin, 36, 87, 117–19 Marsulex Inc., 137 Martel, Pierre, 47, 50, 168, 234, 256 Martineau, Yves, 38, 165–6 Massé, David, 50, 87 Masson, Guy, 20, 47, 50–2 Matador Club, 189–90 Matco, 162–3 McCammon, Stanley, 75 McCarthy, David, 32, 197 McCarthys, 102 McCaw, John, 74–5 McClure, Neville, 70 McCormack, Stuart, 23, 42, 78, 81, 83 McCormick, Timothy, 191, 194 McDonald, Katie, 86 McDowell, Lisa, 19, 55, 60, 257 McElheran, Mark, 101

297

McHaffie, Nick, 78–9, 82–3 McInnis Cooper, 192–3 McLaren, Patricia, 223 McLeod, Jean, 27, 35, 200, 217, 220, 234 McNaughton Automotive, 144 media sector, 78, 82, 125 Medtronic Inc., 41–2, 143 mentoring, 218, 228, 230, 254; women’s, 249–50 Menu Foods, 136, 143 Mercier, François, 140, 185 Merck KGaA, 131 Mestinsek, Mike, 56, 161–2, 168, 257 Metallica Resources Inc., 133 Mevelapanda, 85 Miami Tunnel ppp, 112 Microcell Communications, 127 Middle Eastern initiative, 17; belly dancing episode, 188–9 mi Developments, 30, 35 Minefinders Corporation, 70–1 mining sector: in Brazil, 105–6; foreign interests in, 69–71; global mining group (gmg), 19, 116–18; Russian uranium companies, 118–19; in South Africa, 84–5 Ministry of Transportation, 40, 135–6 Minor Injury Regulation (mir), 146 Mittal Steel N.V., 78, 129 Moncrieff, Jon, 191–2 Moneyball (Lewis), 33–4 Mongeau, Éric, 50, 166 Montreal: metro system, 166; political uncertainties of, 4, 6, 244; practice of law in, 47–8 “Montreal Accord,” 101–2 Montreal Canadiens, 108n1, 127, 134 Montreal office: bilingual structure of, 46–9, 222–3; boardroom names, 185; business development plan, 51; community involvement, 253; connections with McGill University, 53; deals involving Montreal Canadiens tickets, 108n1; Doomsday Book, 168–9; knowledge management (km), 49, 234–7; lateral hires, 51; leadership and management, 50, 200, 239; leasehold improvements, 50; legal library, 51; marketing department, 220–1; “Nautilus” Trust mandate, 53; partnership elections (2009), 50; “pinks”

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circulation, 49n2; Plan Nord practice group, 50; as previous principle office, 4–5, 46, 48, 244; team building, 51–2, 226 Moore Corporation Ltd., 30, 71 Morgan Stanley & Co., 22, 36, 132, 138 Morissette, Yves-Marie, 184 Morpheus Energy Corporation, 130 Morrow v. Zhang, 40, 146 Motion Picture Distribution Inc. v. Loewy, 150 Motorola, 82 Motsepe, Patrice, 84–5 Movie Distribution Income Fund, 131 Mozambique, 117 Muha, David, 191 Murray, Maïté, 236 Nachshen, Gary, 44, 181 Nanji, Noordin, 257 nasdaq, 19 National Post, 18, 61 Needra, Erin, 85 Nelson Resources Limited, 57, 129 Neo Material Technologies Inc., 40 Newfoundland and Labrador, 81, 95–6, 113 New York office: art collection, 89; charitable activities and community involvement, 90–1; client list, 90; location, 89; marketing strategy, 21–3; partnership board, 88–9 Nicoll, Leigh, 86–7 Niebergall, Kelly, 236 Nikanor plc, 132 Nixon, Christopher, 22, 39, 57–60, 64, 97 Nolden, Shauna, 150 Nordick, D’Arcy, 36, 40, 190–4, 197 Nortel Networks Inc., 42, 79, 81, 139 North American Oil Sands Corporation, 120, 130–2 Northcote, Jennifer, 32 Norton Rose, 10, 44, 224, 228 nrdc Equity Partners, 38, 122, 133 Nucor Corp., 131 Nvidia Corporation, 143 nyse, 41, 138 o & y reit, 33, 121, 128 O’Brien, Peter, 185 O’Connor Inquiry, 157

298

oecd, 86–7 Office of the Superintendent of Financial Institutions (osfi), 207 Ogilvy Renault, 44, 224, 235 oil and gas sector, 56–60, 86, 119–20, 137 O’Kelly, Patrick, 22, 40–1 Olley, Stuart, 18–20, 97, 162 Olympic Winter Games (2010) projects, 73, 134–5 omers Private Equity, 138 Onex, 92–3 Onex v. American Home, 146 Ontario Court of Appeal, 102, 144 Ontario Energy Board, 167 Ontario Insurance Act, 144–5 Ontario Power Authority, 135, 138 Ontario Securities Act, 30, 142, 144 Ontario Securities Commission, 33, 35, 143, 173, 207 Ontario Teachers’ Pension Plan, 29, 126, 132, 137; bce bids and acquisitions, 36, 41, 98, 129, 138; sale of Maple Leaf Sports and Entertainment, 43, 139 Orion Oil & Gas Corporation, 137 Oslers, 48, 141 Ottawa office: community involvement, 79–81; competition and foreign investment group, 82–3; corporate practice, 76–8; debate over need for an, 83; departures and retirements, 77, 80–1; litigation group, 82; partners, 77, 79, 83; refocus on regulatory and legislative matters, 78–9, 81 Ottenbreit, Ken, 22, 88–90, 258 Ouimet, François, 256 Ovitz, Michael, 94 Panasonic Corporation, 83, 133, 136 Paquette, Mirabel, 221–3 partner earnings, 243–4 Paton, John, 175 Paura, Mario, 34, 40, 122 Péladeau, Pierre-Karl, 158 Pelletier, Jean, 165 Pernod-Ricard, 128 PetroChina International Investment Company, 39, 59–60, 134 Petrokazakhstan, 57–8 phh Corporation, 132 Philip Services Corporation, 29 Pickwoad, David, 133

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Pierrestiger, Frédéric, 50, 115 Pillarella, Franco, 157 Pillon, Liz, 29, 42 Plan Nord, 50, 115 Plater, Greg, 61, 63 Pluspetrol Resources, 134 Porter, Dana, 40, 187 Potash Corporation of Saskatchewan Inc., 9, 80, 83, 108–10, 116 Poulus, Hein, 73–6, 257 power sector, 59, 112–13, 127, 137–8 Prager, Vincent, 169, 256 Primaris reit, 138 Prime Restaurants Inc., 137 PrimeWest Energy Trust, 120, 127, 130–1 privatization: of Air Canada, 10, 92–3; bce Inc.’s plan for, 98–100; of Canadian National Railways (cn), 10, 93– 4; of forest companies, 67; of stateowned enterprises, 10 pro bono activities, 117, 213, 253, 255, 258–9 profits, share of, 8, 243–4 promotional activities, 12, 14–15, 219 Prospectors and Developers Association of Canada (pdac) Convention, 117 Providence Equity Partners, 36, 98 public-private partnerships (ppp), 43, 69, 111–12, 136–8; renewable energy projects, 114 Pukier, Brian, 19, 33, 39, 41, 43, 217 pulp and paper industry, 95–6 Putnam, Ian, 22, 38, 43, 122, 194 Pyxis Real Estate, 122, 137 Quebec Business Corporations Act, 50, 237 Quebec Court of Appeal, 159–60, 163, 165 Quebec Employers’ Council, 167 Quebec government, 50, 115, 157, 166; hydro generation and, 112–13 “Quebec Inc.,” 47–8, 51 Quebec Liquor Commission, 152 Quebecor, 158–9 Quebec Superior Court, 93, 99, 165–6; Bell Canada-Vidéotron case, 158–9; decision on taxes for judicial costs, 160; judgment on Michel Vennat, 163–4; Kuwait Airways Corp.-Iraq Airways Corp. case, 148–9; Leblanc confidentiality of sources case, 153–4

299

Queen v. National Life Assurance Company of Canada, 147 Raizenne, Robert, 176 Rajpal, Dee, 18, 33, 190 Ramalho, Nancy, 256–7 Rand, Cliff, 31, 168 Randall, Roy, 91 Ratushny, Dan, 192, 197 Raymond, Pierre, 47, 95, 169, 186, 195; belly dancing episode, 189; global activities, 14–15, 17–18, 20; term as chair, 32, 53, 200, 228, 261–2 rbc Capital Markets, 67, 91, 119, 131 rbtt Financial Group, 131 rcmp’s E-Division headquarters project, 137 Real Estate Investment Trusts (reits), 32–3, 121, 128, 130, 137 recruitment process, 33–5, 218, 229– 30, 252–5; involving Hollywood stars, 54–5 Reference re Securities Act, 48 Rein, Kenton, 21 renewable energy projects, 112–15, 127, 137–8 reputation, 7, 92, 203, 205, 255; of Calgary office, 64; international, 120, 175; publications and, 213–14; of Toronto office, 26, 29, 144 requests for proposals, 114, 209 Residential Equities reit (Resreit), 32, 121, 128 resource sector, 68–9; foreign investment in, 57–60. See also mining sector; oil and gas sector retail, 122, 151–2 retention of talent, 8, 47, 218, 229–30, 252 retreats: Miami Beach (2006 & 2011), 44, 227–8; for New Partners at Blue Mountain, 37; Orlando (2006), 36, 227; Quebec City (2009), 52; Whistler (2002), 28–9, 227, 262 Reuters Founders Share Company Limited, 36, 125 Reymond, Robert, 18, 86–7 rga Canada, 134 Richards, Mike, 53 Richardson, Doug, 56, 257 Richer La Flèche, Erik, 18, 24, 47, 96, 115; work on public-private partnerships (ppp), 111–12

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Ridley Corporation Limited, 40, 142 Riley, Jim, 102 Ristic, Anne, 28, 35, 190, 195, 220, 244; involvement in Toronto student program, 34, 184 “road warriors,” 10 Robarts, John, 26, 176 Robb, Jim, 53, 185 Robitaille, Steeve, 16, 50 Robottom, David, 55, 64–5 Romano, Anna, 236 Romano, Simon, 30, 32, 40, 96–8, 169 rona, 122, 127, 162–3 Rose, Brian, 23, 30, 88, 103, 220 Rosenberg, William, 22–3, 50, 103, 228 Roth, Sherry, 85 Rovinescu, Calin, 8, 88, 92–3, 95, 184 Roy, André, 53, 96, 256; as managing partner, 50, 200, 228, 239 Royal, Danielle, 41 Royal Bank of Canada (rbc), 35, 38, 42, 131, 135; financing for South African mining companies, 84–5 Royal Dutch Shell plc, 36, 77, 129 Royster-Clark Ltd., 33, 128 rr Donnelley, 127 Ruf, Franziska, 104, 234 Rumball, Mike, 197 R v. Neil, 206–8, 210, 230 Rwanda, 24 sap, 129 Saskatchewan initiative, 21 Sauer v. Canada (Attorney General), 142 Saugatuck Capital Company, 135 Savanna Energy Services Corp., 130 Schyven, Melissa, 192 Scott, William (Bill), 23, 38, 101–2 Scott’s reit, 121 Sears Canada Inc., 35 Sears Holdings Corp. v. Ontario Securities Commission, 35 Sea-to-Sky Highway project, 111, 134 securities transactions, 202–3 self-regulated profession, concept of, 242 Setlakwe, Paul, 158 Sexwale, Tokyo, 84–5 Sico Inc., 130 Silicen sa, 138 Silver Lake Partners, 128–9 Simmons Pet Food, Inc., 136

300

Singapore office, 11, 23 Singer, Jeffrey, 22, 31–3, 36, 40, 96–7, 257; business pursuits with Israel, 19; work on Ontario Teachers’ Pension Plan, 41, 43 single-tier partnership, 8, 244 Sinopec International Petroleum Exploration and Production Corporation, 16, 59, 120, 133–4 Sithe Energies, 29 Sithe Global Power, 113, 134 Six Shooter Saturday, 61–2 Slocan Forest Products, 67–8, 127–8 Smith, Lewis, 22, 40, 257 Smith, T. Bradbrooke, 81 Smurfit-Stone Container Corporation, 130, 135 Société de transport de Montréal (stm), 166 Solvay America Inc., 40 Solvay sa, 134 Sony Corporation, 143 Sopinka, John, 36, 140, 169 South Africa, 84–5 sovereign wealth funds, 17, 92, 188 “spinco” deals, 69 Squibb, Brad, 63 Srinivasan, Venky, 217 srm Global Master Fund Limited Partnership, 40, 167 Stark, John, 70–1 State Farm Insurance, 40, 167 State Immunity Act (sia), 148–9 state-owned enterprises, 10; in China, 13–14, 16; in the Middle East, 17 steel industry, 106, 123–5 Steiner, Daniel, 22, 257 Stikeman, Heward, 49n2, 66, 140, 214, 219; business philosophy, 27, 65; founding of firm, 4; personality traits, xi–xii, 264 Stikeman Elliott: The First Fifty Years (Pound), vii, xi, 3, 64, 176 Stone Containers, 95 Story, Craig, 17, 22, 55, 60 Stransman, John, 29, 171–4, 199 Stronach, Frank, 35–6 Stronach Trust, 41 Strother v. 3464920 Canada Inc., 211 succession planning, 43, 228 Suncor Energy Inc., 39, 134 SunPower Corporation, 113, 135, 137–8

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Sunrise Propane, 143 Supreme Court of Canada, 40, 96, 102, 145–6, 156, 211; bce privatization plan, 99–100; on constitutionality of national securities commission, 48; judgment on confidentiality of journalistic sources, 154; Kuwait Airways Corp. appeal, 147–8; on lawyer duty of loyalty to client, 206; on multi-jurisdictional law firms, 66 Surrey Outpatient Facility project, 135 Susskind, Richard, 42, 237–8, 240 Sutcliffe, Stewart, 18, 20–2, 85, 190, 192 Sydney office, 11, 88, 91, 184, 223 Symcor Inc., 30 Sysco Canada Inc., 123, 138 Tahoe Resources Inc., 136 Tamaki, George, 26, 49n2 Taniguchi, David, 55 Tata Steel Global Holding Pte., 136 td Ameritrade Holding Corp., 135 team building, 28–9, 51–2, 226–7 Teck Cominco Ltd., 38, 105–6, 133 Teck Resources Limited, 39, 70, 134 TeleZone Inc., 40, 167 Telus Inc., 32, 69, 127–8 Tembec, 67–8 Terasen Energy, 68 Terasen Inc., 128, 132 Terasen Pipelines, 60 Thomson, Susan, 31 Thomson Reuters, 70, 214 Thuy, Kim, 184 Ticketmaster Entertainment, Inc., 135 tjx Companies Inc., 141, 167 Toronto: as economic centre of Canada, 4, 26, 177; market, 29, 44, 244 Toronto-Dominion Bank, 67, 78, 90, 132 Toronto office: articling students, 34; burger-eating contest, 192–3; burrito lunches, 187–8; business development, 31–3, 38–9, 222; business model, 43–4; community involvement, 253; diversity committee, 42, 252; grass roots approach, 27; growth, 29, 43–4; hockey team and Bunny Tournament, 196–7; Holiday “After-Party” (2001–6), 189–91; ideas committee, 30–1; knowledge management (km), 233–5, 238; lateral hires, 20,

301

31–2, 36; leadership and management, 27, 44–5, 123–4, 220; leadership development program, 35, 37–8; marketing department, 219–22; Partnership Board meeting (2008), 186; partner succession process, 40–1, 43; as principal office of firm, 5–6, 26–7, 244; program for new partners, 37; project management initiative, 42; recruiting and hiring, 33, 35–9, 43, 97; reorganization and insolvency-related restructurings, 41; specialty practice groups, 32–3; St Patrick’s Day (2006), 191–2; strategic direction, 32; student committee, 34; team building, 226; work flow, 28 Toronto South Detention Centre, 135 Toronto Transit Commission (ttc), 143 Towards a Level Playing Field (Hay and Nicoll), 87 tpg Capital, 133, 136–7 Trafigura Beheer bv, 137 Tran, Ma Ry, 115 TransAlta Corporation, 54, 59 TransAlta Power, 59, 131 TransCanada Corporation, 120, 131–3, 135 TransCanada PipeLines (tcpl), 60, 120 Travelpro International Inc., 129 Tremblay v. The Queen, 168 Trevor’s Kitchen, 192–3 Triarc Companies, Inc., 133 Triple Holdings Ltd., 131–2 Trois Rivières (Quebec), 103–4 tsx (Toronto Stock Exchange), 19–20, 57, 138, 206 Turcotte, Maxime, 50, 115 20-20 Technologies Inc., 127 Tyco Electronics Ltd., 134 Ultramar, 155 Unifund Assurance v. Insurance Corporation of British Columbia, 145 United Airlines, 82, 136 United Arab Emirates (uae), 17 United States: bankruptcy, 124, 153; banks, 84, 86, 100; business opportunities in, 12, 22, 57; civil jury, 153; cross-border work (Canada-US), 12, 86, 88–9, 95; law firms, 12, 112; litigation, 141; marketing strategy, 21–3; power, 113. See also New York office

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Unocal Corp., 59, 128 Uranium One Inc., 69, 71, 118, 131 UrAsia Energy Ltd., 36, 69, 131 Vale, 85, 105–6, 128, 130 values, 265 Vancouver Canucks, 73–6; BertuzziMoore case, 149–50 Vancouver office: city development projects, 72–3; community involvement, 253; growth, 66; litigation group, 73–6; marketing and business development, 223; negotiation of treaties with First Nations groups, 72; practice support, 223; public-private partnership (ppp) projects, 111; representation for forest companies, 67– 8; representation for mining companies, 69–71 Van Houtte, 83, 135 Vector Aerospace Corp., 137 Vennat, Michel, 20, 163–4 Verizon, 32, 128 Vestar Capital Partners, 131 Vidéotron Ltée, 127, 158–9 Vincor International Inc., 130, 167 Visa, Inc., 38, 133 Volkswagen ag, 137 Voore, Mihkel, 32, 38, 40–1, 43, 192 Vornado, 33, 128 Wai, Eric, 236 Waitzer, Ed, 29–32, 40, 64, 68, 117, 169, 257; counsel for bce, 36, 98; eulogy for John Stransman, 172–4; global activities, 14, 19; representation for Frank Stronach, 36, 41; term as chair, 199–200 Wall, Brad, 109 Ward, Kathleen, 102 waste industry, 122–3 Waterous & Co., 129 website, 220–1; blogs, 83, 204, 222, 236; Latin America practice page, 19 Weinberger, David, 31, 96–7 Westerkirk Capital Inc., 133 western alienation, 6 Westmount Hospitality, 121 White, Marie, 236 Whitehead, Justine, 79, 81, 83 Williams, Danny, 95–6 wind energy projects, 112–13, 115, 127, 137–8

302

Windsor-Essex Parkway project, 40, 111, 122, 135, 137 Winkler, Mr Justice Warren, 142 Winston Strawn, 195–6 Winterthur Group, 129 Wiseman, Mark, 97 Witt, Michael, 56 Wittmann, Justice Neil, 58 women lawyers: career-family balance, 251; challenges for, 247–9; development events targeted at, 42, 250–1; maternity leave, 178, 247–8, 250 Women’s College Hospital, 122, 138 Wood, David, 54 Woodbridge, 41, 138 Woolley, Bruce, 72, 115 Wyeth Consumer Healthcare Inc., 38, 134, 143 Xantrex Technology, 133 xm Canada, 136 Yara International asa, 133 Yellow Media Inc., 93, 137 Yellow Pages Group, 129–30 Yellow Pages Income Fund, 127, 129 Yontef, Marvin, 29, 36, 94, 169 Youngman, Alison, 30, 44, 234; life and death, 41, 177–9; role in marketing department, 219–20 ypg Holdings Inc., 131, 133 Zekelman, Barry (and family), 123–4 Zellers, 43, 83, 122, 133, 139