JUNE 2013 I LEXPERT.CA I $16.95 THE BUSINESS MAGAZINE FOR LAWYERS , -cov~ STORY

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abour and emp~O(ment practice has gained a new cachet :-=·== business aw firms across -f-===-""""==~-==-..:..•;...=:;::::::;;#:~~ BY JULIUS MELNITZER • PHOTOGRAPHY BY JAIME HOGGE

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I ·I 40 LEXPrnT MAGALIN'E JUNE 2013 I REFUEL

;;, The POP-UP Office (designed by DUBBELDAM Architecture + Design) is a concept for a modular office easily reconfigured for adaptability and flexibility.

YOU'D BE HARD-PRESSED TO FIND "WORKPLACE LAW" listed among the areas of exper!Jse on the websites of Canada's management-side major law firms or boutiques. Even Hicks Morley Hamilton Stewart Storie LLP, the country's largest management-side labour and employment law boutique, bills itself as a "Human Resources Law and Advocacy" firm. But rhen, it would be equally difficult ti:> firid"business law" listed among these firms' areas of expertise. Which}s not to say that, where appropriate, firms don't describe themselves as "business law" firms; arguably, that's the fallback descrip- ---­ tion for any firm interested in conveying the message that it provides a range of business-related legal services. In other words, business law isn't an area of expertise so much as it is an attempt to strike the balance between establishing a discrete identity or brand for a law firm witnout unduly limiting the message about the type and range ofservices its profes­ sionals provide. "Full-service," on the one hand, may be a little too vague because it could embrace a range of consumer-oriented legal services; describing a firm as a "corporate-commercial" firm, on the other hand, may not put sufficient emphasis on areas ofpractice, such as litigation, not intuitively associated with the phrase. It is not that, as the success ofHicks Morley evidences, "human-resources law" is in any way an inadequate or inappropriate description. It's just that in today's market, legal services associated with the workplace have moved beyond the aegis 'I of any particular department, such as human resources, into the realm of strategic I LABOUR AND EMPLOYMENT I

law" used tO be "labour and employment sizes workplace law with its "Workplace law." To be sure, "labour relations" and Law Spoken Here" website tagline. By con­ "employment law" are still the first two trast, Filion Wakely Thorup Angeletti LLP, practice areas listed on Hicks' website. But another major Toronto management-side they are only two of the 10 to 15 practice boutique, has stuck with the "management areas listed, including "human rights" and labour and employment law" designation. "information and privacy" - by way of So has Sherrard Kuzz. The phrase "work­ mentioning just two areas of workplace place law" as a practice descript0r also failed law that have emerged from the shadows of to turn up on the sites of any ofthe national law firms engaged in labour and employ­ ment practices. Regardless, however, of the terminology they use to describe themselves, this much is clear: whatever you call them, lawyers dealing with workplace-related matters are working in a much more diverse market than they did in the past. "We're even competing with the crimi­ nal lawyers in the occupational health and safety field," notes Roy Filion of Filion Wakely Thorup Angeletti LLP.

SQ WHY THE focus on semantics? In today's branding and marketing-oriented world, phraseology is often the harbinger of evolution. It not only traces developments but in many instances promotes them. So the mere fact that "workplace law" is find­ ing its way into the lexicon of labour and employment lawyers, especially the highly

I specialized boutiques, tells us a good bit advice. How else other than strategic can what was regarded as arcane ifnot marginal about what's really going on in the market. you describe the counsel Target required not so long ago. And what's really going on is that labour when it was deciding whether to take over "There are more legal issues impacting and employment law has truly become Canadian retail leases at a host of Zellers' the workplace than anyone anticipated workplace law in its broadest sense, much unionized locations? What about advis­ even as recently as five years ago," says Erin as corporate-commercial law has become ing a public company on the appropriate Kuzz ofToronto-based workplace law bou­ the broader business law. Like business law, compensation package for a new CEO in tique Sherrard Kuzz LLP. "Our human­ workplace law now embraces a host ofasso­ light of the brouhaha surrounding execu­ rights practice, for example, has exploded ciated specialties. So pension and benefits, tive compensation in the past few years? since the changes to the Ontario regime." business immigration and human-rights Advocating the company's right to surplus Vancouver's Harris & Company, West­ expertise are to workplace law what the in a pension case in the Supreme Court ern Canada's largest workplace law bou­ likes of competition, securities and tax are of Canada? Or arguing a certification tique, used to bill itself as providing advice to business law. motion in a multi-million-dollar overtime on labour and employment law, but today The reason that major firms are less class action that attacks the very heart of uses the tagline "Workplace Law." inclined than boutiques to embrace a financial institution's organizational and "We now have extensive pension, busi­ "workplace law" as the umbrella for their compensation structure? ness immigration, human-rights and free­ labour- and employment-related practices And that's not all. "Labour and employ­ dom-of-information practices alongside is because some elements ofworkplace law, ment considerations have become increas­ the traditional areas of expertise," says the like privacy law, extend beyond the work­ ingly significant in the context of M&A as firm's founder, Eric Harris. "The focus has place tO other stakeholders in the business well," says Morton Mitchnick of Toronto, shifted to dealing with people in business arena, with consumers being the most who is counsel at Borden Ladner Gervais and advising them on whatever needs they prominent example. LLP, a national firm with a strong work­ have that arise from the workplace." But make no mistake about it: whatever place law presence. To that end, Mathews, Dinsdale & Clark you may call it, workplace law embraces LLP, the Toronto boutique that recently some very lucrative and high-stakes finan­ REMEMBER that "human-resources opened a Vancouver office, also empha- cial and reputational mandates involving

42 LEXPERT MAGAZINE IJUNE 2013 matters ranging from the defence of class not trade-union issues." lucrative and many firms want to be more actions, pension disputes and systemic One surprising exception, however, are involved," says John Craig in Heenan Blai­ human-rights abuses to navigating the the oil sands, where unions are a going and kie's Toronto office. vagaries of provincial successorship legisla­ growing concern. "There's a lot ofconstruc­ The difficulty is that, with some excep­ tion attendant on a merger or acquisition. tion in Northern Alberta, and construction tions, workplace law matters aren't a good "Because labour and employment law is is heavily unionized," says Tom Ross in the fit for many larger firms. "Generally speak­ cutting edge in so many areas, it has become Calgary office of McLennan Ross LLP, an ing, the files aren't worth a huge amount of an important stand-alone practice for many Alberta-based regional firm with over 20 money, and in many cases you're giving a lot firms, and there's a growing emphasis on lawyers who make up the firm's manage­ of general advice," Kuzz says. "That doesn't building these practices," Mitchnick says. ment-side workplace law practice. "This work because the large firms have a higher In other words, workplace law expertise gives rise not only to traditional labour­ rate structure and sophisticated in-house has become an important arrow in the cli­ relations work, but to such things as busi- counsel will not send the work there, espe­ ent-development quiver. "We like to think cially if they're comfortable with the bou­ that we have about 100 lawyers doing full­ tique team." time human-rights, labour law, employ­ Indeed, it wasn't so long ago that being ment law, and pension law work," says Brian a business law firm meant cutting back Smeenk in Fasken Martineau DuMoulin on stand-alone workplace law practices. LLP's Toronto office. Around the turn of the century, which is Indeed, some major firms have come to when Canada's major firms decided they on see the field's ever expanding tentacles as a were going to embrace the business law causeway to relationships that will attract message, they encouraged their labour and the M&A and transactional prizes they so employment lawyers to devote their ener­ In cherish. "Law firms are starting to realize gies to the firm's transactional work. ''At ed that an employment and labour practice is that time, the large firms did not regard of a great entry point to the firm for new cli­ labour and employment stand-alone prac­ JtS ents," says Richard Nixon in Davis LLP's tices as ofvery much value," says Nixon. "So JOHN CRAIG Toronto office. "The first contact with off­ a lot oflawyers lefi: these firms." > HEENAN BLAIKIE LLP shore clients, for example, is frequentlywith Perhaps no more so than at McCar­ regard to an employment matter." thy Tetrault LLP's Toronto office, where As well, firms that have a strong work­ "There's a mindset Nixon, Smeenk and Lorenzo Lisi, now at it place practice don't have to concentrate change in the Bar, which Toronto's Aird & Berlis LLP, found that :t. solely on luring tran;actional clients away has recognized that the time had come to part ways. "McCar­ from established business law firm rela­ employment law has thy still has a significant workplace law tionships: in some cases, it may be easier to become lucrative and practice, but it's nowhere near as significant h establish an initial connection by attract­ as it was IO years ago," Nixon says. ing the workplace law business that a large many firms want to be After the financial crisis, however, corporate client has placed with a boutique. more involved." employment law became attractive because The reality of the marketplace, how­ it was largely recession proof and its ambit ever, is that most large firms don't have included lucrative niche areas. "You need ts the strength and depth to lure day-to-day ness immigration law, because the demand to do hard-core labour and employment te workplace law retainers of the boutiques. for people here outstrips the supply." work if you want to get the bet-the-com­ .e "We make a point of building mutually Generally speaking, however, while pany labour and employment work," says beneficial relationships with people at large labour-relations practices may be awash Paul Boniferro, a partner in McCarthy's •S firms because referrals have always been an with many of the new modern-day issues national labour and employment group. e important part ofour business," says Kuzz. that characterize employment law, the ''And you still need to earn your stripes in number of labour-relations, management­ the marketplace in the traditional way." FOR BOUTIQUES, though, expand­ side clients, apart from those in the public Boniferro, who concedes that the firm's ing the parameters of workplace law into sector, is at best stagnant for many firms. national contingent of 30 labour and new areas, and particularly employment On the employment side, however, the employment lawyers "has been larger in law, has been a mandatory strategy to suc­ non-unionized workforce keeps grow­ the past," nonetheless says that less than 10 ceed. "Labour law is not growing as a busi­ ing, and developments like the explosive per cent of the practice is transactionally ness because the level of unionization has growth of human-rights claims and class oriented. ''At any given time, one of us cer­ fallen and many new kinds of business are actions make the issues far more significant tainly has a transactional file on his or her populated by self.employed small entrepre­ and lawyer-friendly than ever. "There's a desk," he says. "My personal practice focuses neurs," Eric Harris says. "High-tech compa­ mindset change in the Bar, which has rec­ heavily on collective bargaining, wrongful­ nies may have a lot oflegal issues, but they're ognized that employment law has become dismissal litigation, human rights, griev- LEXPERT MAGAZINE IJUNE 2013 43 I ance arbitration and what blog that provides ongoing commentary By contrast, Fasken is not the dominat­ I would call 'day-to-day regarding workplace law issues arising ing labour and employment force that it operational advice."' around the world. was in BC in the years after it merged with Still, while McCarthys Vancouver's Russell & DuMoulin in 2000 certainly does not eschew stand-alone work­ THE FACT REMAINS, however, - although its workplace law practice still place law clients, the main source of busi­ that, among the major Canadian firms, only remains deep. ness for Boniferro and his colleagues are the Norton Rose and Heenan Blaikie appear to "We see our most significant competitors firm's corporate clients. "We wouldn't want regard workplace law as a core practice. A in workplace law as the two big boutiques, to see a 100-lawyer department because our more accurate way of describing the posi­ Harris and Roper Grayell," says Robert client base doesn't justify it," he says. "What tion of many of the other majors is to say Sider of Vancouver's Lawson Lundell LLP, we want to do is to develop and maintain a that they now see workplace law as a source a regional firm that boasts 12 workplace strong presence in the marketplace without law lawyers, including four pension law growing too big." lawyers. "Heenan Blaikie and Fasken Mar­ By contrast, Norton Rose has roughly 75 tineau are the chief competitors among the lawyers dedicated to labour and employ­ large firms." ment law. The firm's Eastern Canadian According to Sider, however, Fasken's component, formerly known as Ogilvy labour law department in BC is "not half Renault, featured the practice area as one of what is was five years ago" due to a series of its "four pillars" (which also includes of personnel reductions. "But that's not business law, intellectual property and inconsistent with what we've seen among litigation), and the firm has always had one the nationals, except for Heenan Blaikie," of the strongest labour and employment he says. "In fact, some of the big Toronto practices in the country. The firm is also firms that don't have a Vancouver office strong in Ottawa, where its primary com­ tend to call us rather than sending out their petition is Emond Harnden LLP, Gowling own people." ERIC HARRIS Lafleur Henderson LLP, Nelligan O'Brien > HARRIS & COMPANY LLP However that may be, it's not as if the Payn~ L.!;I' and Perley-Robertson, Hill & nationals have gone away. In addition to the McDougall LLP. firms already mentioned, Davis, Demons What is interesting, however, is that "We now have extensive Canada LLP and McCarthys also have BC workplace law is not one of the "six head­ pension, business immi­ practices that merit mention. lights" ofNorton Rose Fulbright's interna­ gration, human-rights and There's no doubting, however, that bou­ tional strategy. "L:ibour law starts locally, freedom-of-information tiques and regional firms, including Farris, regionally or provincially, and nationally practices alongside the Vaughan, Willis & Murphy LLP, Taylor for federal works and undertakings," says traditional areas of Jordan Chafetz, and TevlinGleadle, in Richard Charney, the Toronto-based addition to the firms already mentioned, global practice leader of the firm's employ­ expertise. The focus has are a stellar force in the BC workplace law ment and labour group, who points to the shifted to dealing with market. Their continuing prominence firm's recent absorption of Calgary-based people in business and may be explained partly by the failure of boutique Armstrong Mitchell Lawyers as advising them on whatever the Toronto boutiques to expand outside evidence that workplace law remains a pri­ needs they have that arise Ontario; alternatively, the strength of the ority for the firm's Canadian operations. BC boutiques and regionals, buttressed "Norton Rose Fulbright continues to view from the workplace." by Harris's exclusive alliance with Hicks the four pillars as ever present in the Cana­ Morley and Roper Greyell's strategic alli­ dian context." ance with Sherrard Kuzz, may explain Which is not to say that workplace law of or conduit to new, profitable mandates the Ontario boutiques' reluctance to go is not important to the firm from an inter­ by which they can expand and strengthen national, much as it may explain the rela­ national perspective. Indeed, Norton Rose their relationship with corporate clients, tive lack of growth among nationals in the has a significant workplace law practice in old and new. Their interest in hread-and­ province's workplace law arena. Mathews Australia that is even slightly larger than butter labour-relations and employment Dinsdale's recent move into Vancouver, the Canadian contingent, more than 30 law as stand-alone growth areas is therefore however, may he the beginning of a trend dedicated practitioners in the US, about a somewhat limited. or the end of a very brief one: it's not clear dozen labour and employment lawyers in Fasken Martineau is an interesting case how many other Ontario boutiques have South Africa, and practitioners in the UK, in point. The firm is stronger in workplace enough national clients or prospects to Germany, the Middle East and Central law in the Toronto area than it once was, merit expansion outside Ontario. Asia. Linking these practices is the firm's a sign perhaps of the practice's growing On the other hand, small boutique newly launched Global Workplace Insider importance to the corporate community. firms and sole practitioners that specialize

44 LEXPERT MAGAZIN E IJUNE 2013 / LABOUR AND EMPLOYMENT /

nat­ in the local workplace market proliferate "Labour-relations lawyers are under lt it in Ontario. But they tend to act for both intense pressure to decrease their rates \Tith employers and employees and cannot as and have been for some time, which is why JOO individual entities be regarded as competi­ most of the major firms are not focused on still tive with the exclusively management-side growing these practices," Craig says. "But major firms and boutiques. because niche practices like pension law and tors employment class actions are not subject to ues, IN ALBERTA, McLennan Ross contin­ the same pressures and are becoming more bert ues to cast a considerable shadow over the significant for business, just about everyone ,LP, market, although that dynamic has been lace altered somewhat by Norton Rose's absorp­ law tion of Armstrong Mitchell. Gowling Laf-. ifar­ leur Henderson LLP, Bennett Jones LLP ;the and Demons are McLennan and Norton Rose's main competitors in Calgary. In ~en's Edmonton, Field Law, Dentons, McLen­ half nan Leslie & Tyerman LLP, and Neuman :ries Thompson challenge McLennan. not Quebec, of course, is the birthplace ong of Ogilvy Renault, one of Norton Rose de," Canada's forerunners, and Heenan Blaikie. mto Lavery, de Billy, L.L.P., which has offices ffice in Montreal, Quebec City and Ottawa, heir has fortified its presence through a strong but informal relationship with Hicks ' the Morley. Among the nationals, McCarthys,

•the Borden- Ladner., ,... and Fasken Martineau also tons show strength. Workplace law boutiques BC Loranger Marcoux s.e.n.c.; Schneider & Gaggino; Melam;:on Marceau, Grenier et JOU­ Sciortino; and Trudel Nadeau Avocats .rris, s.e.n.c.r.l. figure prom~ nendy as well. - including ourselves, other national firms (for law firms) overtime class actions, which ,ylor Aikins, MacAulay & Thorvaldson LLP, and the boutiques - are working to expand have proliferated in the US and threaten to , in Thompson Dorfman Swe;itman LLP, and that type ofbusiness." do so in Canada in the wake ofthe Supreme ned, Taylor McCaffrey LLP lead in Manitoba, It's not hard to discern their motivation. Court of Canada's refusal to grant leave law with McDougall Gauley LLP, MacPherson Consider that Jndalex, perhaps the most against Ontario Court of Appeal rulings

~nee Leslie, and Bainbridge Jodouin Cheecham closely watched pension-related case ever, upholding the class certifications in Fresco ·e of at the forefront in Saskatchewan. Atlan­ featured counsel from traditional blue-chip v. Canadian Imperial Bank of Commerce :side tic Canada features Stewart McKelvey, firms like Goodmans LLP, Osler, Hoskin and Fulawka (CIBC) v. The Bank ofNova · the Mcinnes Cooper, Forbes Roth Basque, & Harcourt LLP, and Stikeman Elliott Scotia (BNS). ssed Ritch Dunford and Pink Larkin. LLP on the pro-business side of the argu­ BNS opted for a Borden Ladner team icks ment against the pensioners. Although composed of members of its litigation alli- THE UPSHOT IS that - the specific Goodmans and Stikeman do not have group and its deep workplace law group; 1lain dynamics of the marketplace and individ­ high-profile pension departments and their CIBC had Torys LLP team up with work­ > go ual firm strategies aside - there's a great deal presence in Jndalex is primarily attribut­ place law specialists Hicks Morley. What's rel a­ of competition for employment-law-related able to their considerable expertise in insol­ interesting in the latter case is that Torys t the mandates. By contrast, the playing field vency proceedings, it's likely no accident has a relatively small workplace law depart­ iews in traditional management-side labour­ that Goodman's Joe Conforti, one of three ment in Toronto of no more than six dedi­ iver, relations practices has not changed much. labour and employment lawyers at the firm, cated practitioners, and the emphasis there rend Heenan Blaikie and Norton Rose continue is highly regarded, and that the intervening is clearly on pensions: the group calls itself :lear to be very high on the list of the national Canadian Bankers Association chose Osler the "Pension & Employment" practice, and have firms with the strongest labour-relations - which, with Blake, Cassels & Graydon, the only sub-category it lists is "Pension & s to practices, even as boutiques ofvarying sizes ranks as having among the most outstand­ Employment Litigation." The chair of the throughout the country compete with these ing pension departments in the country - practice, Mitch Frazer, is best known for ique firms and amongst themselves to capture as to be its counsel. his pension expertise, although his practice, alize much of the shrinking market as they can. Otherwise, there are the coffer-filling and that ofhis colleagues, extends to a wide

LEXPERT MAGAZINE IJUNE 2013 45 I LABOUR AND EMPLOYMENT I

range of human-resource­ and also a lot of litigation. The bank cases related issues. are only the low-hanging fruit because Frazer has a very definite the defendants are large federal employers philosophy regarding the whose employees are governed by a single ple, are increasingly requiring an under­ growth ofhis department, which has grown statute, the Canada Labour Code, and sub­ standing of local and regional employment at the conservative rate of about one lawyer ject to a national class." and business markets. Stock options have annually in recent years. "You have to look As Goodman sees it, certification of become mainstays of many wrongful' dis­ at where you are in the market and at what's CIBC andBNSwill be the catalyst not only missal disputes. Shareholder disputes in profitable," he says. "What I'm looking for for cases against other national employers, private companies can be complicated by are people who are knowledgeable in all the but for regionalized class actions against the fact that departing shareholders are also HR areas, because the main thing I want employees. "There is a growing willingness our department to be is strategic advisors at our firm to practise what I call 'commer­ for a strong firm-client base." cial employment law,"' Goodman says. As Torys demonstrates, however, there's Nor, as it turns out, is the spread ofwork­ no doubting that firms with smaller work­ place law confined to barristers. "With the place law departments can succeed in the growing awareness ofhuman rights, it takes niche areas that provide lucrative work­ a lot ofsolicitors to keep business people out place law mandates. Clearly, that was Torys' of workplace-related trouble," says Aird & intention in segregating a pension and Berlis's Lisi. employment litigation group. And snaring Keith Mitchell, Farris Vaughan's Van­ the prized CIBC retainer in the overtime couver-based managing partner, is of simi­ class action proves the strategy can be suc­ lar mind about the activities of his firm's cessful, especially in a partnership with a IO-lawyer workplace law contingent. "Our workplace law boutique. labour and employment lawyers spend quite MITCH FRAZER But there are a few firms, like Davies a bit of time on planning and structuring > TORYS LLP Ward Phillips Vineberg LLP, who are how a business is going to be carried on as iny_estmg little internally in the workplace well as day-to-day administration," he says. law phenomenon. "We don't have a labour "You have to look at and employment practice group, although where you are in the WITH ALL THAT potential for work­ we do have a partner who provides what I market and at what's place law, many lawyers believe Canada is call 'first-level coverage' on transactions," profitable. What I'm look­ a promising destination for a global work­ says Davies' mb.naging partner Shawn ing for are people who place law firm. "It's amazing when you McReynolds. "If we're going to have a consider that there is no national labour bigger department, it needs to make its own are knowledgeable in all boutique in Canada that is akin to a firm way, and ifwe do need more help on a trans­ the HR areas, because like Littler Mendelson in the US," John action or a lawsuit, we can rent the expertise the main thing I want our Craig observes. by calling the managing partners at Hicks department to be is Query, then, whether Canada could be Morley or Mathews Dinsdale." strategic advisors for fallow territory for a specialty workplace law firm. "I think that the biggest chal­ WHILE IT REMAINS to be seen a strong firm-client base." lenge for boutiques is the need to develop who will benefit most from them, retain­ a national and international footprint, ers of similar magnitude to CIBC and because it allows them to compete for inter­ BNS are likely on the horizon. The fact companies or divisions of companies gov­ national RFPs," says Filion, whose firm is a that accounting giant KPMG quickly and erned by provincial law. To be sure, BC member of L&E Global, which was estab­ effectively settled an analogous case bears courts have held that overtime claimants lished in 2012 and describes itself as "an some witness to the potential numbers of are limited to bringing statutory claims integrated alliance ofpremier employment defendants seated in the bleachers waiting before provincial regulators, but the BC law boutique firms advising on all worklaw for the outcome ofwhat are surely test runs rulings were based on very specific privative related matters that international employ­ in Fresco and Fulawka. statutory language. "Ontario, by contrast, ers may have to deal with." "There is significant risk out there specifically authorizes overtime actions in Indeed, L&E's very existence, and its because many employers are not in full court," Goodman says. focus on the growing multi-jurisdictional compliance with provincial labour stan­ aspects of workplace law, is perhaps the dards," says Jeffrey Goodman of Hicks WORKPLACE LAW IS also trench­ most forceful testament to the coming of Morley's Toronto office. "Now that Fresco ing on what has traditionally been regarded the practice's new age. c.! and Fulawka have been certified, you're as commercial litigation. Significant cases Julius Melnitzer is a freelance going to see a lot of voluntary settlements involving restrictive covenants, for exam- legal-affairs writer in Toronto.

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