About

Editor’s note: This interview was conducted prior to March 2020. Éric now works at Agnico Eagle Mines Limited.

What are the most important transactions and litigations that you have been involved in during the last two years?

After the acquisition of Canada’s largest gold mine in 2014, CMGP’s management worked with the City of Malartic and CMGP’s monitoring committee to develop a “Good Neighbour Guide”. This would set out the terms for compensating residents on an annual basis and the guidelines for the acquisition of properties, as well as the implementation of a range of measures to mitigate the impacts of its mining operations.

While CMGP was creating the Guide, a minority of citizens who were dissatisfied with the indemnities offered initiated a class action in August 2016, through a representative. This class action sought indemnities of more than C$9,000 per resident per year (plus a C$1,500 yearly amount for owners or lessees of property) starting from August 2013, as well as C$20m in punitive damages for the benefit of class members residing closest to the mine and representing approximately 1,400 citizens. In addition to the class action, the representative also filed (i) interlocutory and permanent injunctions against CMGP seeking to enforce compliance by CMGP with the conditions outlined in governmental Orders in Council and certificates of authorisation; and (ii) an application for judicial review to obtain the annulment of the 2017 governmental decree authorising the expansion of the Canadian Malartic mine.

Despite these substantial and sensitive proceedings, the Guide successfully sustained the court’s scrutiny and, year after year, led to an impressive annual adherence rate of over 90% of Malartic’s residents and approximatively 80% of the residents living in the sector covered by the class action. Indeed, even if the class action was certified in May 2017, the Superior Court and the Court of Appeal allowed CMGP to continue to settle individually with residents for specific periods (usually a calendar year) and allowed the residents to opt-out from the class action for such periods.

The interlocutory injunction was dismissed by the Superior Court in 2017 and no appeal was filed.

In January 2018, a judgment was rendered in favour of CMGP resulting in the removal from the class action of the pre-transaction period, which spanned from August 2013 to June 2014, during which the Canadian Malartic mine was not operated by CMGP. The removal of the pre-transaction period was confirmed by another judgment in July 2019.

Following a hearing on the merits in fall 2018, the Superior Court dismissed the judicial review in May 2019. An application for leave to appeal was filed by the Plaintiff in June 2019 and allowed in September 2019.

In August 2019, the Plaintiff’s attorneys advised that they renounced their client fees. Settlement negotiations started in September 2019 and an agreement in principle was announced in October 2019 by the parties with respect to the class action, the permanent injunction and the judicial review proceedings. A formal settlement agreement was executed in November 2019 and approved by the court in December 2019. Essentially, this agreement includes the reopening of the 2013 to 2018 compensation periods of the Guide for the benefits of the residents who did not individually settle for these periods under the Guide; the implementation of a new C$1.5-C$1.7m renovation program for the benefit of property owners in the South sector, whether they are class members or not; and a threshold for the three upcoming compensation years equal to the 2018 compensations under the Guide.

This settlement put an end to a three-year complex, sensitive, and highly mediatised judicial debate, which resulted in approximatively 20 judgments.

Focus on: Research

Don’t wait for the opinion, be ahead of the game!

In-house lawyers should never give up or neglect their legal research skills, whether they are the head of the legal department or are starting out their in-house career.

Too often in legal departments, especially when teams are small, available documentation and research tools are few or outdated. The workload, the lack of resources, the short deadlines and many other more or less legitimate reasons contribute to reduce the time and efforts that in-house lawyers give to legal research. In these circumstances, the usual reflex is to rely on external lawyers, whose role is rather to support the business in specialised fields or in court, or, and this is not without risk, to rely mainly on their previous experience and the practices or solutions that have served them in the past.

Yet, in-house lawyers with advanced and effective research skills can be crucial assets in quickly clarifying legal situations at low cost, without depending on the availability of external counsel and, sometimes, their questionable knowledge and skills.

The goal is not to replace specialists, but rather to have the capacity, in-house, to build your own legal strategy by determining the range of legal issues facing the company in a specific factual situation. Conducting legal research internally promotes a better understanding of all legal options thanks to a detailed analysis of the legal corpus and the relevant judicial treatment. In fact, research always brings up new angles and new questions, a priori neglected, but which can become central for the resolution of a problem.

In-house research is fundamental to ensure the quality of transactional legal documentation or documents related to corporate governance, but it is also crucial for the supervision of the mandates entrusted to legal firms. Contrary to popular belief, doing in-house legal research is also essential when a mandate is given externally. How could in-house lawyers supervise and evaluate the performance of law firms if they do not grasp the situation from a legal point of view? There is no inherent legal knowledge. In-house lawyers who neglect this aspect put themselves in a fragile position, as intermediaries between external counsel and business partners, by losing legal independence and usefulness as business partners specialised in law. In-house lawyers must maintain their legal independence by ensuring that external counsel’s work is of quality, relevant, and does not rule out important issues or possible solutions. In this regard, the only proven method is to have mastery of one’s files, which research allows.

Obviously, the goal is not to allocate an indiscriminate share of resources to research and to transform a legal department into a university research centre. It is a question of valuing the advanced research skills of in-house lawyers and making sure that research forms part of a systematic practice, thereby ensuring the quality of the solutions brought to the business’ problems, whether these solutions come from legal firms or in-house.