General counsel at Purolator and Trans Mountain discuss key challenges and priorities for 2021
In our Views 2021 cover story, legal leaders share their concerns and strategies for supporting their businesses at a time of unprecedented business disruption. As employers hope that a COVID-19 vaccine may gradually enable workplaces to reopen this year, in-house counsel face a host of labour and employment laws while continuing to support and grow the business. Risk management and compliance continue to be top priorities.
Legal teams at Purolator Inc. and Trans Mountain Corporation will be closely monitoring regulatory changes this year to ensure compliance as well as the safety of employees. The legal team at Purolator is eyeing changes to privacy regulations and cross-border trade, while at Trans Mountain, Indigenous and environmental regulations are being carefully examined to ensure compliance during a planned expansion project.
“Lawyers are always keeping our finger on the pulse of the regulations that affect our business,” says Sue-Lynn Noel, vice president, general counsel and corporate secretary at Purolator Inc. “I think we’re probably going to see a continuation of the evolution of privacy legislation in North America and, because of COVID, there’s a lot more personal information out there.”
The legal team at Trans Mountain embraces the regulatory environment in which it operates.
“We believe here in Canada that we have the kind of regulatory system that a country like ours should have: one that is science and evidence based and, above all, fair,” says Rob Van Walleghem, vice president, legal and general counsel at Calgary-based Trans Mountain. “To the extent that the regulators make changes, we’ll be monitoring those changes and making sure that we remain compliant and leading-edge.”
Sue-Lynn Noel
Vice president, general counsel and corporate secretary
Purolator Inc.
Mississauga, ON
At Purolator Inc., a surge in demand for e-commerce has created significant volumes of packages, putting additional pressure upon the entire operation. The Canadian courier giant, which offers deliveries to more than 210 countries and territories worldwide, is also prepared to assist in the distribution of COVID-19 vaccines around the country, if the request should arise.
Among many projects planned for 2021, the legal department will be further developing its risk management function, as well as working on implementing a contract lifecycle management system to accelerate customer onboarding, while also providing insight into contract data to rapidly inform business decisions.
“I always say that, without data, you’re flying blind,” says Noel. “It’ll be good to have a very disciplined approach to decision-making that’s based on data that we have across all of our contracts with our customers and our vendors.” Finding ways to measure the performance of the legal department is also top of mind for Noel.
As a vocal advocate for diversity and inclusion in the legal profession, Noel intends to strengthen her resolve to ensure that external counsel partners are similarly focused.
Purolator will continue to work with firms that focus on diverse talent for succession planning and the firms that ignore this issue are unlikely to see very much work from Purolator, Noel says.
INHOUSE: What business challenges are you anticipating at Purolator in 2021?
NOEL: Twenty-twenty has been very noteworthy and exciting for Purolator. As an essential service, we’ve been really trying to navigate all the different challenges to make sure that we can keep Canadians safe and make sure that goods still flow. In 2021, we will continue to prioritize health and safety, first and foremost, and contactless deliveries to keep people safe. We’re also managing extreme volume as a result of the surge in e-commerce and home delivery of everything from board games to patio warmers to support Canadians staying home during the pandemic. You’re going to see that continue into 2021 and, as Canadians get comfortable ordering things that they wouldn’t normally order to the home and they see that it’s something that can be effective and can keep everyone safe, I think we’ll probably see some more of that.
We really are going to be accelerating a lot of our strategic priorities to help businesses recover from the pandemic and that means increasing network capacity. Hopefully, we’ll be able to do our part in assisting with the distribution of the COVID-19 vaccine in Canada. It’s going to be an enormous undertaking, and it will require co-ordination and co-operation from a number of the supply chain partners. We haven’t been tapped to do that yet, but we’re ready, willing and able, if we get that call.
INHOUSE: How are you navigating employment and labour laws as the COVID vaccine rolls out in Canada and employees gradually start returning to office spaces?
NOEL: With all of the changes that have been made, we had to be quite agile. Again, safety is always the priority and we have heavily invested in protecting people on the front lines and those needing to be in the office. We want to return to the office when it’s safe to do so. There will be lots of guidelines and protocols. I think once COVID is under control, then we’ll have a better path forward. We’re preparing for all those things in terms of vaccines and testing and we’re taking all of our guidance from public health authorities.
INHOUSE: What regulatory challenges do you anticipate dealing with in 2021?
NOEL: Coming out of a pandemic, we’re always cognizant of changing regulations. Then there are the pre-COVID regulatory things that we were always expecting to deal with. I think we’re probably going to see a continuation of the evolution of privacy legislation in North America and, because of COVID, there’s a lot more personal information out there. I’m always watching what’s going on with respect to trade and preparing and watching for changes. There are the macro effects of trade agreements on supply chains generally but also on crossing the border.
I’m always looking at the regulations around Canada with border security.
Occupational health and safety is another concern. There’s some new changes to the workplace violence and harassment regulations so my team has been working on the policies and procedures and how we’re going to implement all those changes. Lawyers are always keeping our finger on the pulse of the regulations that affect our business.
INHOUSE: In what ways does the legal department support the organization as a whole?
NOEL: We provide advice, negotiate contracts and manage risk. We participate in cross-functional groups that support all of the major projects and initiatives. We also manage corporate governance. What’s great is that we’ve kind of created an environment where we’re business partners, so people will come to us sometimes not even on legal issues but just because they see us as a team of problem solvers — and that’s intentional. We want people to see us as more than lawyers.
INHOUSE: How do you plan to deal with risk management and compliance in the year ahead?
NOEL: Well, I think addressing the COVID pandemic has really accelerated our plans to enhance our risk management program, including with respect to business continuity and privacy. In 2021, we expect to evolve from tactical business continuity to strategic business resilience. A global pandemic is something that most businesses had not specifically planned for but it’s also about trying to figure out if something happens that we couldn’t anticipate, how can we just be more resilient as an organization, no matter what life throws at us?
INHOUSE: What projects and initiatives will the legal department be focused on in 2021?
NOEL: Well, in addition to the further development of our risk management function, we’re working on implementing a contract lifecycle management system, which I’m really excited about. That’s to accelerate our customer onboarding but also to provide insight into contract data to inform business decisions more quickly. I always say that, without data, you’re flying blind. It’ll be good to have a very disciplined approach to decision-making that’s based on data that we have across all of our contracts with our customers and our vendors.
First and foremost, the goal is obviously to support the various projects and initiatives of a very innovative business that needs to be agile, especially as we continue to navigate the pandemic and its effect on our business. I go to where the business needs me, but I also have to make sure that we keep the lights on in the legal department and that is where the contract lifecycle management comes in. We really need to take care of those things in order to make sure that we’re building all of the nice, shiny things on top of a very solid foundation.
INHOUSE: What is your approach to working with external counsel?
NOEL: Like most, we use external counsel when we need expertise or we need bandwidth. I think the old model of this billable hour is slowly dying as there are firms and organizations that are offering alternatives such as flat rates. At the end of the day, I care mostly about using the right tools for the job and getting the value that I paid for, and this is largely derived from building relationships with partners who are open to sharing the risk and understanding our challenges and objectives, so they would need to be proactive. I need lawyers to drive files to close and facilitate a good two-way communication.
Diversity and inclusion in the legal profession is still lagging behind business generally. I believe in the business case for diversity and I would expect my law firm partners to be similarly invested in developing their own talent to serve our files, so that means more than just lip service. A few junior lawyers representing diversity is not going to cut it. Those firms that continue to kick this issue to the side — which they have done for 20 odd years since I’ve been in the profession — are unlikely to see very much work from us. I definitely have external law firms that hear me loud and clear and they’re really doing a good job of trying to develop some of their own talent for succession planning and working on some meaningful files for us. I’m excited and I’m hopeful, but it’s also about managing those expectations. I’m not going to be silent on this diversity and inclusion issue.
INHOUSE: What goals do you have for your legal department in 2021?
NOEL: I want to build on our reputation as business partners with an enterprise-wide perspective. I think that’s where we really add the value. What I’m really excited about as a goal for 2021 is developing the muscle in legal operations. Private practice lawyers are often measured by billable hours, but in an in-house environment, not only would our lawyers object to documenting their time but I just don’t think it correlates to delivering value to the business. We’re exploring a meaningful way to measure that performance of a legal department, so that we’re measuring what matters to the business — not just what’s easy for us to measure. And this is our opportunity to demonstrate our value, as well as contributing to Purolator’s continuous improvement culture, which is very strong.
Rob Van Walleghem
Vice president, legal and general counsel
Trans Mountain Corporation
Calgary, AB
Trans Mountain operates Canada’s only pipeline system transporting crude oil and refined products to the west coast. Headquartered in Calgary, the company delivers approximately 300,000 barrels of crude oil and refined products each day through 1,150 kilometres of pipeline in Alberta, British Columbia and Washington State. As a federal Crown corporation, Trans Mountain is wholly owned by the Canada Development Investment Corporation.
In June 2019, the Government of Canada approved an expansion project that would add approximately 980 kilometres of new pipeline, so the legal team is deeply involved in navigating the legal parameters of the project and ensuring compliance with 157 conditions.
“We have an extensive regulatory team that monitors the compliance with all those conditions and commitments, so that’s an ongoing task,” says Van Walleghem. The company has a sophisticated tracking system for all compliance-related legislation, so the legal department is alerted to any changes in legislation that are then reviewed in order to develop a plan for any necessary changes to ensure compliance.
Monitoring environmental protection and worker health and safety requirements are key priorities for Van Walleghem’s team, together with operating in a manner consistent with Canada’s commitment to advance reconciliation with Indigenous peoples.
Van Walleghem and his team will be renewing service level agreements with each department within the business this year to make sure that they remain aligned in terms of expectations.
“My number one goal is to maintain a productive and sustainable healthy legal department in 2021,” he says.
INHOUSE: What business challenges are you anticipating at Trans Mountain in 2021?
VAN WALLEGHEM: That’s a unique question as it applies to us, because in terms of business challenges for the company, I am not really anticipating many, the reason being that the pipeline is full and has been since 2008, so the demand for space continues to exceed our capacity. Unlike other businesses in these extraordinary times, the business of Trans Mountain pipeline continues to roll along unimpeded and efficiently for our customers — the shippers.
INHOUSE: How are you navigating employment and labour laws as the COVID vaccine rolls out in Canada and employees are gradually returning to office spaces?
VAN WALLEGHEM: We are governed by the Canada Labour Code as a federal undertaking, and throughout this year [2020], we have been monitoring some of the changes to the code. In the face of COVID, I think one of the key things is to continue to recognize the necessity for accommodation for employees. We have always recognized the right of employees to ask for accommodations, and our company has always been prepared to address any and all required accommodations, whether it be eldercare, childcare or particular health concerns. Whatever it is, in the context of complying with privacy, we will continue to recognize those rights and the requirements necessary to ensure first and foremost that we supply a safe work environment — both in the office and on the project. And, and even though vaccines are now rolling out, we have to be careful not to get ahead of ourselves. There are priorities being developed and there are many people who are going to be on the on the tail end of the vaccine, not at the beginning, and so we have to manage with that reality in mind. We will continue to, first and foremost, ensure a safe work environment.
INHOUSE: What regulatory challenges to you expect to deal with in 2021?
VAN WALLEGHEM: Our expansion project has probably been the most scrutinized and reviewed energy project in Canadian history and that’s OK because we believe we’re setting new standards for delivery of major infrastructure projects in our country, so we embrace the regulatory environment within which we operate. We respect the regulators and welcome their attention to our company and our project and our operations.
We’ll be watching any new regulatory initiatives and Indigenous law trends and commitments around climate change and making sure that we’re supporting all of those things. The owner has given us a mandate to operate in a commercial manner and so we’re going to do that like any other company would, but they’ve also given us some other pretty specific mandates as well. In particular, we are to ensure full compliance with the applicable laws and rules, particularly with environmental protection and worker health and safety requirements, which we set out to do every day, but also to operate in a manner consistent with Canada’s commitment to advance reconciliation with Indigenous peoples. Those are always first and foremost in our minds as we take on the challenges we see from day to day.
INHOUSE: In what ways does the legal department support the organization as a whole?
VAN WALLEGHEM: We are a rather small but mighty team. We support all of the operational aspects of the company. Some people may know that the Trans Mountain pipeline has been in existence since 1953, so we have a long record of exceptional operational performance. Our legal department supports all of those things as well as the HR-related issues and any litigation claims or disputes. On the corporate governance side, we have a very sophisticated, complex, experienced board and we have many committees. They are all very busy and active, so it requires a lot of administration. On the project expansion side, the same applies so it’s a multi-faceted approach.
INHOUSE: How do you plan to deal with risk management and compliance in the year ahead?
VAN WALLEGHEM: We have a Certificate of Public Convenience and Necessity issued by the Canada Energy Regulator that gives us the right to build this pipeline. It gave us 157 conditions, including commitments to comply with so we have an extensive regulatory team that monitors the compliance with all those conditions and commitments, so that’s an ongoing task. Also, the project has a unified hazard risk management procedure, which is a living document as it’s continually evaluated and improved upon in all areas of regulatory compliance, health and safety and environmental matters. No matter how good we think we are today, we always believe we can be better tomorrow and so we’re always looking for advancement and improvement in those areas. We also have a fairly sophisticated tracking system for all compliance-related legislation throughout the company. When there are changes in any legislation, we are alerted and the subject matter experts in the company then review and develop a plan for any changes we may need to make to ensure compliance.
INHOUSE: What projects and initiatives will the legal department be focused on in 2021?
VAN WALLEGHEM: Well, in addition to continuing what we’re already doing, which is in itself a lot, I think that one of the other unique things about our company is not only are we a Crown corporation but we’re a Crown corporation that is up for sale every day. Everyone’s aware that the government’s intention is to sell the company, once it is de-risked, to the extent that a transaction can occur. We’ll be planning as any company would for a transaction. As we operate the business and the expansion project, we’re also anticipating a transaction that we’ll be working on. While the company spent a number of years preparing for construction, we are now preparing for the integration into an expanded pipeline system so we’re planning for all of the business processes and all of the roles and responsibilities that will be required if an expanded pipeline is ready to go when expected at the end of 2022.
INHOUSE: What is your approach to working with external counsel?
VAN WALLEGHEM: My approach is to make sure that, like in any project, you want to pull the right tool out of the toolbox. I feel that we are very lucky to have experienced exceptional external counsel. My approach is to ensure that we provide external counsel with clear instruction. I think external counsel appreciate clear instruction, especially with the complexity of the matters we have here at our company. We like to bring them in early when we need them. We have a long-standing relationship with our preferred service providers and so they’re very well integrated into a lot of our files already. When we forecast legal demand, they’re very helpful and very responsive so we try not to surprise our external counsel with fire drills. We like to have a lot of runway for the things we need to accomplish.
INHOUSE: What goals do you have for your legal team in 2021?
VAN WALLEGHEM: We plan to continue to work safely and sustainably. In this age of COVID, when your commute has gone from two hours or 20 minutes to 20 steps, we need to be cognizant of the fact that, for many people, there may not be any distinction between office and home. When you’re accommodating everyone who has issues they need to deal with during the day — whether it’s kids home from school or whatever — that can result in extended work hours for everybody.
We are looking at renewing and refreshing our service-level agreements with each department to make sure that we remain aligned with what they need and they remain aligned with our expectations and our ability to respond to the legal requirements of the company. I think doing that in a sustainable way is critical under the circumstances we’re all living in right now. The health and safety of the members of my department and our company as a whole are my primary concern. My number one goal is to maintain a productive and sustainable healthy legal department in 2021.
