Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
Issue link: https://digital.carswellmedia.com/i/1484268
38 www.lexpert.ca Top 10 Business Decisions WRITTEN BY AIDAN MACNAB, BERNISE CAROLINO, JASON TAN, AND ANGELICA DINO SNC-LAVALIN is the first case interpreting the new Criminal Code provisions allowing for remediation agreements. While SNC-Lavalin is the first case using a remediation agreement, it will not be the last, says Jilesen. "at will definitely be a model for the fu- ture. No doubt about that." In September 2021, Normand Morin, SNC-Lavalin Inc. (SNCL), and SNC-Lavalin International Inc. (SNCLI) were charged with various Criminal Code offences, including fraud, forgery, and conspiracy in connection with the award of Montreal's Jacques Cartier Bridge refurbishment contract. e prosecutor submitted a dra remedia- tion agreement that it signed with SNCL and SNCLI. e goals of the remediation agree- ment regime are to hold an organization ac- countable, to correct corporate culture, and to remedy the harm caused by the offences while avoiding negative consequences to in- nocent third parties. is was the first dra remediation agreement submitted for court approval in Canada. Upon examining the agreement, the Quebec Superior Court found that the fair, reasonable, and proportionate to the gravity of the offences and implemented measures necessary to prevent the offensive behaviour from recurring. The court found that the financial pro- visions in the agreement were substantial enough to denounce wrongdoing and hold the organizations accountable. The court also found that the victim's harm was adequately addressed. R. C. SNC-LAVALIN INC., 2022 QCCS 1967 • SNC-Lavalin > Norton Rose Fulbright Canada LLP > François Fontaine, Charles-Antoine Péladeau, and Emily Deraîche-Grossberg • Independent Compliance Monitor selected in the Remediation Agreement and appointed by the Superior Court of Québec > Blake Cassels and Graydon LLP > Mark Morrison, Simon Seida, Michael Dixon, John Fast, Gina Murray, Robel Sahlu • The Jacques Cartier and Champlain Bridges Incorporated > Osler, Hoskin & Harcourt LLP > Stéphane Eljarrat, Frédéric Plamondon, and Josy-Ann Therrien CLIENTS > FIRMS > LAWYERS parties had provided all the mandatory elements of s. 715.34(1) of the Criminal Code. In addition, the agreement also pro- vided for several discretionary elements. e court said that the cooperation of the two organizations involved, specifically to identify the participants in the offences despite the incriminating nature of the evi- dence disclosed, was a significant consider- ation in its analysis. e court was satisfied that the organizations had made serious efforts to prevent the reoccurrence of the alleged conduct and that there was a fun- damental change in the corporate culture. e Quebec Superior Court ultimately approved the amended remediation agree- ment, applying "new tools for fighting cor- porate crime," which the federal govern- ment had introduced aer "extensive public consultation," says Meehan. e court found that the agreement's framework included measures to maintain and improve compliance measures and the appointment of an independent monitor – the organizations had already been mon- itored for 10 years. e court also found that the agreement, taken as a whole, was