RECENT DEVELOPMENTS IN THE LAW OF PRIVILEGE

RECENT DEVELOPMENTS IN THE LAW OF PRIVILEGE In-House Counsel and the Challenge of Protecting Rights SEMINAR MAY 31, 2012 MONTRÉAL TORONTO OTTAWA CALGARY VANCOUVER NEW YORK LONDON SYDNEY www.stikeman.com

In the know. Keeping you in the know on key areas of Canadian business law that s the goal of Stikeman Elliott s business law blogs. There s no better place to turn to for up-to-date information and analysis. CLASS ACTIONS CanadianClassActionsLaw.com COMMUNICATIONS CanadianCommunicationsLaw.com COMPETITION / ANTITRUST TheCompetitor.ca EMPLOYMENT, LABOUR AND PENSION CanadianEmploymentPensionLaw.com ENERGY CanadianEnergyLaw.com SECURITIES/CAPITAL MARKETS CanadianSecuritiesLaw.com STRUCTURED FINANCE CanadianStructuredFinanceLaw.com TECHNOLOGY AND INTELLECTUAL PROPERTY CanadianTechnologyIPLaw.com email updates rss feeds twitter Subscribe directly at any of our blog sites or go to www.stikeman.com MONTRÉAL TORONTO OTTAWA CALGARY VANCOUVER NEW YORK LONDON SYDNEY www.stikeman.com

RECENT DEVELOPMENTS IN THE LAW OF PRIVILEGE In-House Counsel and the Challenge of Protecting Rights AGENDA MAY 31, 2012 8:00 am Breakfast and Registration 8:30 am Welcome and Introduction 8:35 am Presentation David Byers, Partner Stikeman Elliott Clifford Rand, Partner Stikeman Elliott 9:20 am Question and Answer Period 9:30 am Closing Remarks

RECENT DEVELOPMENTS IN THE LAW OF PRIVILEGE In-House Counsel and the Challenge of Protecting Rights CONTENTS MAY 31, 2012 SPEAKERS David Byers, Partner, Stikeman Elliott Clifford Rand, Partner, Stikeman Elliott PRESENTATION SLIDES Recent Developments in the Law of Privilege FIRM PROFILE An overview of Stikeman Elliott and our Litigation and Tax Groups

RECENT DEVELOPMENTS IN THE LAW OF PRIVILEGE In-House Counsel and the Challenge of Protecting Rights PROFILES OF TODAY S SPEAKERS MAY 31, 2012 David Byers Partner, Stikeman Elliott Clifford Rand Partner, Stikeman Elliott

David R. Byers 5300 Commerce Court West, 199 Bay Street, Toronto, Canada M5L 1B9 Direct: (416) 869-5697 Fax: (416) 947-0866 dbyers@stikeman.com Law Practice David Byers is head of the firm s Litigation Group in Toronto, co-chair of the firm s litigation practice nationally, and co-head of the Insolvency & Restructuring Group in Toronto. He is highly experienced in complex commercial litigation, including product liability, securities, insolvency and insurance, as well as in domestic and international arbitration. Mr. Byers has extensive advocacy experience appearing before both the Trial and Appellate levels of courts in Ontario. His representations reflect a practice of extraordinary depth and scope. He has acted for companies and their management in an exceptionally broad range of industries, including manufacturing, technology, pharmaceutical, financial services and tobacco. And, he has acted for both lenders and debtors in several court supervised restructurings. Mr. Byers is listed and recognized in the following publications: > The Canadian Legal Lexpert Directory 2012 as a leading practitioner in Insolvency, Corporate Commercial, Directors & Officers Liability and Securities Litigation, and Class Actions. > The 2012 Chambers Global Guide to the World's Leading Lawyers for Business as a recommended lawyer for Dispute Resolution: Ontario and Restructuring/Insolvency. > IFLR1000's The Guide to the World's Leading Financial Law Firms 2012 as a leading lawyer in Restructuring and Insolvency. > The Best Lawyers in Canada 2012 in the areas of Bet-the-Company Litigation, Class Actions Litigation, Corporate and Commercial Litigation, Director and Officer Liability, Insolvency and Financial Restructuring, and International Arbitration. > The 2012 Lexpert/American Lawyer Media Guide to the Leading 500 Lawyers in Canada for Insolvency and Corporate Commercial Litigation. > The 2011 Lexpert Guide to the Leading US/Canada Cross-border Litigation Lawyers in Canada for Insolvency/Restructuring and Corporate Commercial. > Legal Media Group s 2012 Benchmark Canada, the Guide to the World s Leading Litigation Firms and Attorneys (Inaugural Edition) as a pre-eminent litigation practitioner in Ontario. > The International Who s Who of Insolvency and Restructuring Lawyers 2011 as a leading lawyer earning the praise of clients domestically and internationally and receiving feedback stating that "he's absolutely fantastic. He gets right to the heart of the issue and gets things done. PROFILE

> The 2011 Who s Who Legal International Who's Who of Commercial Litigators as a leader in Commercial Litigation. > PLC s Cross-border Dispute Resolution Handbook 2011 as a leading lawyer in dispute resolution. > PLC s Cross-border Restructuring and Insolvency Handbook 2011 and 2011 PLC Which Lawyer? as recommended in the area of Restructuring and Insolvency. > The 2010 Lexpert Guide to the Leading US/Canada Cross-border Corporate Lawyers in Canada in the area of Insolvency & Financial Restructuring. > The 2010 Legal Media Group s Guide to the World's Leading Insolvency and Restructuring Lawyers. > The 2010 Legal Media Group s Guide to the World s Leading Litigation Lawyers. Professional Activities Mr. Byers is a member of the Metropolitan Toronto Lawyers Association, the Canadian Bar Association, the Insolvency Institute of Canada, the Litigation Counsel of America, and a member and former director of The Advocates Society. Publications & Presentations Mr. Byers has participated in numerous panels and conferences as a speaker on a number of diverse topics. He is co-author of the "Canada" chapter in the International Comparative Legal Guide to Class and Group Actions 2012, and Creditors Remedies in Ontario (Toronto: Butterworths, 1994). Mr. Byers has spoken on many legal issues, including: > What s Distinctive About Class Actions When the Crown is a Party? Osgoode Professional Development Eighth Annual Conference: Crown Liability, Toronto, February 16, 2012. > Rising from the Ashes: Different Playing Field, Different Rules for Distressed Deals: Canwest/Shaw Communications, Advanced Mergers & Acquisitions Conference, Toronto, May 2011 > "Selected Privilege and Litigation Management Issues", Quorum Club, January 25, 2007. > Creditors' Rights and Remedies 2 nd Annual Maximizing Credit & Collections Summit, Federated Press, January 8, 2007. > "Managing and Protecting Attorney-Client Privilege in the Age of Disclosure", 2006 Association of Corporate Counsel Conference, San Diego, October 2006. Education Osgoode Hall (LL.B. 1981), University of Western Ontario (Honours BA 1978). Bar Admission Ontario, 1983. PROFILE

Clifford L. Rand 5300 Commerce Court West, 199 Bay Street, Toronto, Canada M5L 1B9 Direct: (416) 869-5242 Fax: (416) 947-0866 crand@stikeman.com Law Practice Cliff Rand is a partner in the Toronto office of Stikeman Elliott and a member of the firm s Tax Group. Mr. Rand s practice is focused on tax litigation and on assisting taxpayers in managing a wide variety large or complex tax audits, including those involving the General Anti-Avoidance Rule, cross-border reorganizations and transfer pricing. Mr. Rand has been recognized as a leading tax practitioner in the 2012 Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada, the Canadian Legal Lexpert Directory 2012, and the 2011 Lexpert Guide to the Leading US/Canada Cross-border Litigation Lawyers in Canada. Publications and Speaking Engagements Mr. Rand has participated in and written papers for conferences on tax matters, including those held by the Canadian Tax Foundation, Law Society of Upper Canada, CCH, Tax Executives International, International Fiscal Association, The Canadian Institute, Federated Press, CGAA and The Adocates Society, including the following recent conferences: > Co-speaker, Current Tax Cases Canada Revenue Agency & Professional Group Breakfast Seminar, Toronto (February 2012). > Speaker, The BDO National Tax Specialists Conference, Toronto (January 2012). > Speaker, Current Cases, Canadian Tax Foundation, Montreal (November 2011). > Speaker, Canada Revenue Agency/Tax Professionals Breakfast Seminar, Toronto (November 2011). > Speaker, Law Clerk Seminar Program, Tax Court of Canada, Ottawa (October 2011). > Speaker, Continuing Issues for General Practitioners Program, Law Society of Upper Canada, Toronto (September 2011). > Co-speaker, Current Tax Cases Canada Revenue Agency & Professional Group Breakfast Seminar, Toronto (June 2011). > Co-speaker, A Comparative Look at Canada s Approach to Treaty Interpretation, International Tax Seminar, International Fiscal Association, Toronto (May 2011). > Speaker, "Audit Preparation: Counsel's Role", 12th Annual Managing Tax Audits & Investigations Conference, Federated Press, Toronto (May 2011). PROFILE

> Co-speaker, Preparing for a tax audit and the role of counsel in tax audits, 11th Annual Managing Tax Audits & Investigations Conference, Federated Press, Calgary (March 2011). > Co-speaker, Current Tax Cases Canada Revenue Agency Breakfast Seminar, Toronto and Barrie, Ontario (February 2011). > Co-speaker, Faculty of Law, University of Toronto, Panel Discussion on Copthorne Holdings (January 2011). > Speaker, Tax Court of Canada Law Clerk Seminar Program, Ottawa (January 2011). > Co-speaker, Current Tax Cases Canada Revenue Agency Breakfast Seminar, Toronto (February, May and November, 2010). > Co-speaker, Current Tax Cases Canada Revenue Agency Breakfast Seminar, North York, Ontario (November, 2010). > Speaker, "Income Tax - the GAAR - Current Impact on Tax Planning", Annual Canadian Tax Executives International (TEI) Conference, Gatineau, Quebec (May 2010). > Co-speaker, Preparing for a tax audit and the role of counsel in tax audits, 10th Managing Tax Audits & Investigations Course, Federated Press Conference Division, Toronto (May 2010). Representative Work The following are some of the notable tax cases that were litigated by Mr. Rand in the last dozen years: > Collins & Aikman Products Co. v. The Queen et. al., 2010 FCA 251 (Federal Court of Appeal), 2009 TCC 299 (Tax Court of Canada), in which the issue was whether the general anti-avoidance rule (GAAR) applied to a corporate reorganization of a multinational group and the patriation of corporate funds out of Canada. > Telfer v. Canada (Canada Revenue Agency), 2009 FCA 23 (Federal Court of Appeal), an appeal relating to an application for judicial review of the Minister of National Revenue s decision to deny the taxpayer relief under the Canada Revenue Agency s taxpayer relief program. > Tolhoek v. R., 2008 FCA 128 (Federal Court of Appeal), 2006 TCC 681 (Tax Court of Canada), a test case involving taxpayers who invested in a tax shelter partnership. > Karia v. The Minister of National Revenue, 2005 FC 639 (Federal Court of Canada), an application for judicial review of the Minister of National Revenue s decision to deny the taxpayer relief under the Canada Revenue Agency s Voluntary Disclosure Program. > Nash v. The Queen, Quinn v. The Queen and Tolley v. The Queen, 2005 FCA 386 (Federal Court of Appeal), 2004 CarswellNat 3359, 2004 D.T.C. 3391 (Tax Court of Canada), test cases involving claims for income tax credits in respect of the donation of works of art. > Lenester Sales Ltd. v. The Queen and Sushi Sales Limited v. the Queen, [2004] 4 C.T.C. 15, 2004 D.T.C. 6461 (Federal Court of Appeal), and [2003] 4 C.T.C. 2772, 2003 D.T.C. 997 (Tax Court of Canada), test cases involving the meaning of control in fact for the purpose of the small business deduction claimed by a large group of franchised retail stores. PROFILE

> McCoy v. The Queen, [2003] 4 C.T.C. 2959, 2003 D.T.C. 660 (Tax Court of Canada), a test case involving taxpayers who invested in software tax shelter partnerships. > Capital Vision et al. v. The Queen, [2002] 2 C.T.C. 42, 2003 D.T.C. 5054 (Federal Court of Canada), an application for judicial review regarding the exercise of the Canada Revenue Agency s power to obtain a taxpayer s client list. > Tom Cheek v. The Queen, [2002] 2 C.T.C. 2115, 2002 D.T.C. 1283 (Tax Court of Canada), a case involving the application of the Canada/U.S. Income Tax Treaty. > Stremler v. The Queen and Jones v. The Queen, [2000] 2 C.T.C. 2172, 2000 D.T.C. 1757 (Tax Court of Canada), test cases involving the deduction of tax losses by a group of real estate investors who purchased residential condominium units. Education Osgoode Hall Law School (LL.M. 1986), McGill University (LL.B. 1981, Honours BA 1977). Background Mr. Rand was born and raised in Montreal. He first began practising law in Calgary, Alberta in 1982 and, for a few years in the mid-1980s, was a law professor at the University of Windsor. Bar Admissions Ontario, 1986. Alberta, 1982. PROFILE

RECENT DEVELOPMENTS IN THE LAW OF PRIVILEGE In-House Counsel and the Challenge of Protecting Rights PRESENTATION SLIDES MAY 31, 2012 Recent Developments in the Law of Privilege

Recent Developments in the Law of Privilege SEMINAR MAY 31, 2012 www.stikeman.com 1 Brief Overview of Solicitor-Client Privilege 1

Solicitor-Client Privilege: General Principles Criteria for Establishing the Privilege: Communications between a solicitor and a client; Involving the seeking or giving of legal advice; and Which is intended to be kept confidential by the parties The purpose of solicitor-client privilege is to permit clients to be frank and candid with their lawyers SLIDE 2 Solicitor-client privilege is not just a rule of evidence governing admissibility It is the substantive right to permanently protect information or documents from disclosure to third parties Supreme Court of Canada has said that the privilege must be considered nearly absolute and that exceptions to it will be rare - Lavallee, Rackel & Heintz v. Canada, [2002] 3 S.C.R. 209 SLIDE 3 2

The privilege is the right of the client not the right of the solicitor It has long been recognized that legal advice provided by in-house counsel in the performance of their duties is afforded the same solicitor-client privilege as legal advice provided by external counsel Ontario Rules of Professional Conduct do not distinguish between the ethical duties of confidentiality of in-house and external counsel SLIDE 4 The Difference Between Privilege and Confidentiality Privilege is a substantive right and a rule of evidence to protect information or documents from disclosure to third parties, including in litigation and to regulatory bodies Confidentiality is an ethical obligation for lawyers, and is often a contractual obligation, but does not protect information or documents from disclosure in litigation or to regulatory bodies As a rule of evidence, what is privileged varies by jurisdiction. As an ethical rule, what is confidential generally does not SLIDE 5 3

Brief Overview of Privilege & 2 Advice by In-house Counsel Who is the Client? The privilege belongs to the client, and can be asserted or waived only by the client or through his or her informed consent Where a lawyer is employed in-house, the lawyer owes allegiance to the corporation and not to the officers, employees or agents of the corporation This overriding duty of loyalty raises significant potential conflict of interest issues SLIDE 7 4

It is not uncommon for in-house counsel of a parent corporation to have responsibility for advising wholly-owned subsidiaries The courts have generally extended the privilege protections to such subsidiaries, considering them to be the client SLIDE 8 Legal vs. Business Advice In-house counsel frequently wear multiple hats when advising a corporation, or have multiple corporate responsibilities Solicitor-client privilege covers only legal advice, and not advice on purely business matters A lawyer s obligation to distinguish between legal and business advice has been elevated to an ethical duty in Ontario As the work done by in-house counsel involves both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine whether privilege arises The application of privilege depends on the circumstances in which advice is sought and given, the subject matter of the advice, and the nature of the relationship SLIDE 9 5

In addition to opinions on legal questions, the lawyer may be asked for or may be expected to give advice on non-legal matters such as the business, policy, or social implications involved in the question or the course the client should choose. In many instances the lawyer's experience will be such that the lawyer's views on non-legal matters will be of real benefit to the client. The lawyer who expresses views on such matters should, where and to the extent necessary, point out any lack of experience or other qualification in the particular field and should clearly distinguish legal advice from other advice. Commentary to Rule 2.01 SLIDE 10 3 Brief Overview of Litigation Privilege 6

Litigation Privilege: General Principles Criteria for Establishing Privilege: Document prepared in contemplation of litigation Litigation must have been the dominant purpose (General Accident v. Chrusz, 1999 OCA) C.A. in Chrusz rejected alternative substantial purpose test Key point is the purpose for which document created SLIDE 12 Litigation Privilege vs. Solicitor-Client Privilege Key differences: LP is less absolute more judicial discretion LP can apply to documents without regard to involvement of counsel LP expires at the conclusion of litigation (Blank v. Canada, 2006 SCC) Once litigation is over, that s it no more privilege Exception where there are closely related proceedings, but this is narrowly defined SLIDE 13 7

Recent Development - HMQ v. Dunn - 2012 Recent case received lots of press Criminal case against Dunn and other former Nortel executives Audit committee interviewed Dunn in relation to a restatement of financial statements Dunn had lawyers in attendance who took notes Crown sought production of those notes over which counsel claimed litigation privilege Court found notes protected from production by litigation privilege but required counsel to read notes to refresh memory for their testimony SLIDE 14 Recent Developments in Tax Audits and Appeals 4 re. Privilege 8

Three recent developments 1. The CRA is more frequently making applications to the Federal Court to order taxpayers to comply with CRA audit queries when the CRA believes the taxpayers are not being sufficiently responsive (instead of first issuing formal requirements to such taxpayers), which will lead to more CRA challenges to taxpayer claims of privilege 2. A recent Tax Court decision has held that a taxpayer is not required to provide the CRA with all details of legal advice in order to support a deduction for the cost of such advice for tax purposes 3. In some cases, the Tax Court will expect a taxpayer to waive solicitor-client privilege, and even call its legal advisers to testify, if the taxpayer wishes to meet its evidentiary burden of proof SLIDE 16 Federal Court Compliance Orders In the past, if the CRA believed a taxpayer was not being sufficiently responsive to its audit queries, it would issue a formal requirement (under section 231.2 of the ITA) and only apply to the Federal Court for a compliance order (under 231.7 of the ITA) if the taxpayer failed to comply with the requirement The CRA is now more frequently applying to the Federal Court for compliance orders without first issuing a formal requirement One effect of this change in CRA policy is that it allows the CRA to be more aggressive in challenging taxpayer claims of privilege (because the CRA will have ready access to a judge to determine whether particular documents are privileged) SLIDE 17 9

Lawyers Bills A recent Tax Court decision has held that, if a taxpayer wishes to deduct the cost of legal advice for tax purposes, the taxpayer need not provide the CRA with all details of such advice. (Richard A. Kanan Corp. v. R., 2011 TCC 211) Section 232 of the ITA provides that an accounting record of a lawyer is deemed not to be privileged. This was often interpreted by the CRA to mean that lawyers timesheets were not privileged. A tax lawyer s timesheets could provide the CRA with insight into tax sensitive transactions SLIDE 18 Lawyers Bills The Kanan case stands for the proposition that the taxpayer need only disclose the nature of the legal work performed in very general terms (e.g., sufficient disclosure for the CRA to determine whether the legal work relates to the acquisition of a capital asset and must be capitalized rather than deducted on current account) The Tax Court in Kanan held that a taxpayer who presents a claim for deductions in a return must also accept that at least some disclosure will be necessary to properly dispose of that claim. SLIDE 19 10

Lawyers Bills However, to provide the proof that is required, a taxpayer should not be forced to reveal the specifics of its legal advice, or to turn over the lawyer s entire file. In addition to limited disclosure, the lawyer or the Court may edit documents to remove non-essential material, and the Court may impose conditions to ensure the confidentiality of the information. Further, taxpayers must be allowed to provide the proof that is required without the risk that they will be found to have waived the privilege entirely SLIDE 20 Requirement to Waive Privilege In some cases, the Tax Court will expect a taxpayer to waive solicitor-client privilege, and even call its legal advisers to testify, if the taxpayer wishes to meet its evidentiary burden of proof, particularly in a case in which the taxpayer s intention is an important consideration (see for example, Garron Family Trust (Trustee of) v. R., 2009 TCC 450) In Garron, the Tax Court judge indicated in her reasons that the tax lawyers involved in planning the transaction in issue would have been important witnesses SLIDE 21 11

Requirement to Waive Privilege The Tax Court judge indicated that she was troubled by the fact that the tax lawyers (among other potential witnesses) were not called to testify in the case. It leaves me to infer that none of them would have provided evidence that was favourable to the appellants. SLIDE 22 5 Deal Team Privilege 12

What is Deal Team Privilege? Relatively new concept of privilege that was recently affirmed by the Ontario Superior Court of Justice in Barrick Gold Corporation v. Goldcorp. Inc., 2011 ONSC 1325 Refers to the extension (or a possible exception to the waiver) of solicitor-client privilege to communications between and among members of a team of experts and advisors assembled by the client for the purpose of completing a corporate deal or transaction An exceptional concept in that it protects from disclosure communications with third parties, which are presumptively non-privileged (whether giving or receiving legal advice or distributing same) SLIDE 24 Basis of Deal Team Privilege Recognizes the modern reality of the structure and processes necessary to complete complex corporate transactions: The nature of the interrelationship and dealings between [the client, the consultant and the lawyer] are a practical reality in major commercial projects where teams of individuals with focused expertise are assembled. All functions are not performed under a single roof, and the [lawyer] through retained by a single client, may be required to give advice to different members of the team who work for the client. Barrick Gold, endorsing comments of the BSSC in Camp Development Corp. v. South Coast Greater Vancouver Transportation Authority, 2011 BCSC 88 SLIDE 25 13

Key Points from Barrick Gold each and everyone of the individual advisors was appropriately regarded as part of the team for the purposes of requesting, obtaining and/or receiving legal advice the documents make clear the particular input of a relatively small number of non-lawyer individuals outside the companies, whose input was necessary and appropriate to the consideration, structuring, planning and implementation of very complex transactions in a very short time frame. the individuals considered themselves bound to confidentiality SLIDE 26 Key Points from Barrick Gold one can see and understand the need for and receipt of specific advice and knowledge necessary for the overall legal considerations of the transaction. SLIDE 27 14

Scope of Deal Team Privilege May apply to business people, employees, ex-employees, accountants, financial advisors, investment bankers, and other consultants and advisors necessary to the Deal Team May cover emails, due diligence materials, notes and comments on draft agreements, financial and strategic analysis and advice, management presentations etc... Individuals and documents/communications that may be covered is not a closed group or list Fact specific determination Will NOT cover purely business advice SLIDE 28 Establishing and Protecting Deal Team Privilege Include provisions in your retainer agreements authorizing external advisors to request and receive legal advice on your behalf Clearly identify when legal advice is being sought or given Mark communications privileged & confidential Ensure the deal team is aware of importance of maintaining confidentiality (include provision in retainer agreement, separate non-disclosure agreement) Be cautious of reply all emails, automatically copying the whole group, and the uncensored forwarding of email chains containing legal advice distribution should be on a need to know basis only SLIDE 29 15

Privilege Issues relating to 6 Lawyer as Whistleblower Lawyer as Whistleblower Internal counsel owe a duty to maintain all privileges on behalf of the client Lawyers also owe a wider duty of confidentiality Rules of Professional Conduct require a lawyer to take steps in the face of dishonest conduct which may put inhouse lawyers in an untenable professional position SLIDE 31 16

Once a lawyer acting for an organization learns that the organization has acted, is acting, or intends to act in a wrongful manner, then the lawyer may advise the chief executive officer and shall advise the chief legal officer of the misconduct. If the wrongful conduct is not abandoned or stopped, then the lawyer reports the matter up the ladder of responsibility within the organization until the matter is dealt with appropriately. If the organization, despite the lawyer s advice, continues with the wrongful conduct, then the lawyer shall withdraw from acting in the particular matter in accordance with rule 2.09. In some but not all cases, withdrawal would mean resigning from his or her position or relationship with the organization and not simply withdrawing from acting in the particular matter. Commentary to Rule 2.02 SLIDE 32 Questions and Answers David R. Byers dbyers@stikeman.com Clifford L. Rand crand@stikeman.com 17

RECENT DEVELOPMENTS IN THE LAW OF PRIVILEGE In-House Counsel and the Challenge of Protecting Rights FIRM PROFILE MAY 31, 2012 An overview of Stikeman Elliott and our Litigation and Tax Groups

Firm Profile Stikeman Elliott is one of Canada's leading business law firms, with offices in Toronto, Montreal, Ottawa, Calgary and Vancouver as well as in London, New York and Sydney. The firm is recognized as a Canadian leader in each of its core practice areas corporate finance, M&A, corporate-commercial law, banking, structured finance, real estate, tax, insolvency, competition/antitrust, employment and business litigation and is regularly retained by domestic and international companies in a wide range of industries including communications, financial services, insurance, technology, transportation, manufacturing, mining, energy, infrastructure and retail. It was named as the 2011 Canadian Law Firm of the Year by the International Financial Law Review. They go above and beyond the call of duty to come up with innovative solutions. CLIENT INTERVIEW IFLR1000 The firm s Canadian offices are leaders in their respective jurisdictions and it has prominent cross-border expertise, as the first Canadian firm to open offices in London and New York, and extensive experience in the U.S., Europe, China, South and Southeast Asia as well as in Latin America, the Caribbean and Africa. Our 500 lawyers include many of Canada s most prominent business practitioners and leading litigators, and our depth across practice areas enables clients to benefit from efficient, expert teams of lawyers at all levels. The firm has also invested heavily in leading-edge knowledge management and project management systems in order to assure our clients of advice of the highest quality. Stikeman Elliott has been recognized by national and international legal directories as a Canadian leader in business law. > #1 for Lexpert/American Lawyer ranked lawyers in M&A, Corporate Finance and Corporate-Commercial > #1 for Lexpert ranked lawyers in M&A, Corporate Finance and Corporate-Commercial > #1 in the Best Lawyers rankings for M&A, Securities, Corporate Law and Arbitration > Ranked Top-Tier in Corporate Law, M&A and Corporate Finance in Chambers Global s The World s Leading Lawyers and the International Financial Law Review IFLR 1000 The firm s National Litigation Group, whose specializations include class actions, securities litigation, antitrust and restructurings, has been ranked among the top three business litigation practices in Canada by Lexpert. The firm is also well known for its extensive regulatory and government relations expertise; the latter anchored by its office in Ottawa.

Our Offices Stikeman Elliott s Canadian offices are located in the major business and financial centres of Montréal, Toronto, Ottawa, Calgary, and Vancouver. Outside Canada, the firm s network includes offices or representation in the United Kingdom, the United States and the Asia-Pacific region. Our unsurpassed international experience ensures that we can serve our clients wherever their business takes them. Toronto The Toronto office of Stikeman Elliott is a broadly based corporate-commercial law practice with a strong transactional focus. The firm s Toronto lawyers include many of Canada s foremost practitioners in the areas of M&A, securities, banking, structured finance, insolvency, tax, real estate, competition, employment, pensions, technology, outsourcing, mining and electricity law. The Toronto business litigation group is highly regarded for its record in commercial litigation, most notably securities litigation, class action defence and complex insolvencies and restructurings. The office is renowned for its expertise in cross-border transactional and litigation work and counts many major global corporations and financial institutions among its clients. The Toronto office has been recognized by local media as a top regional employer and one of the city s most environmentally-sustainable businesses. Montréal The firm s Montréal office is one of the most successful and respected in the city. Its practice is focused on M&A, securities, banking, cross-border financial restructuring, international tax and commodity transactions, real estate, environmental law, intellectual property, information technology, transportation, insurance and employment law. The Montréal litigation group is widely recognized as one of the leading business law litigation teams in Quebec. Stikeman Elliott s expertise in civil law and commercial transactions is particularly significant where an organization has operations in Quebec or in other jurisdictions with codified civil law-based legal systems, such as Central and Eastern Europe and South America. Much of the work carried out in the Montréal office has a strong international focus. OUR OFFICES

Calgary Our Calgary office is home to some of Alberta s leading lawyers. The Calgary office opened in 1992 and maintains a business law practice focused on M&A, securities, real estate, joint ventures, project financings, structured financings, tax, employment and banking. The office also has a significant international dimension, advising on foreign investment in the Canadian energy sector and cross-border trade in energy resources. In addition, the office maintains a commercial litigation practice and is renowned for its regulatory practice involving oil and gas and electricity related matters. The Calgary office has won four awards for its active role in the community. Vancouver Since 1988, our Vancouver practice includes a number of British Columbia s leading lawyers in the areas of M&A, securities, banking, litigation and real estate. Our corporate lawyers lead local matters and draw on expertise of other Stikeman Elliott offices in national and international matters. We have one of British Columbia's most prominent real estate development and acquisition practices, while our Litigation Group has acted for all levels of government and offers a broad range of commercial dispute resolution and advocacy services, including significant class action expertise. A very experienced group of lawyers also practice in the areas of publicprivate partnerships, infrastructure development and project finance. The Vancouver office has a strong cross-border focus, acting as the firm s Canadian gateway to the Asia-Pacific region. Ottawa The Ottawa office of Stikeman Elliott focuses on administrative law and regulated industries, with particular emphasis on competition law, intellectual property law, international trade, government procurement and public policy. Industry sectors in which the office has expertise include such federally-regulated commercial sectors as telecommunications, broadcasting, transportation, and energy, as well as those (such as packaging and labelling) that are subject to food and drug administration. London Drawing on over 40 years of experience in the city, Stikeman Elliott's London office has long been recognized for its leadership in international corporate transactions, including leveraged buy-outs, take-over bids and share and asset purchases. Our London corporate finance team is a leading advisor to Canadian companies with respect to Toronto Stock Exchange and AIM listings and has been recognized for many years as one of the most prominent international advisors in the Eurobond markets. We have also been at the forefront of developing the legal framework for the issuance of Maple Bonds in Canada. Our lawyers have broad industry expertise, as well as significant experience in Africa, in the mining sector. The office also serves as the gateway for our India, Middle East and Sovereign Wealth Fund practices. As well, our private client practice ranks amongst the world s leading practices in the area. New York The New York office of Stikeman Elliott has extensive experience in Canada-U.S. cross-border corporate transactions, with a particular focus on M&A, corporate finance, banking and structured finance. The firm s New York lawyers provide Canadian legal advice on cross-border acquisitions, investments, banking, securities and regulatory matters to U.S. corporations, investment dealers, advisors, banks and funds. OUR OFFICES

Sydney Stikeman Elliott s Sydney office, the hub of our Asia-Pacific practice, is involved in multijurisdictional securities and M&A law with a sectoral emphasis on mining, cross border M&A, infrastructure development and project finance. Asia Stikeman Elliott regularly acts in transactions involving clients across Asia, including, in particular, India, China, Hong Kong, Thailand and the Middle East. Reflecting the position of Canada as a target for a rapidly expanding Asian region and as a significant source of capital, the firm provides advice on a large number of significant transactions from Asia into Canada, as well as advising on Canadian investment into Asia. The firm has a particularly high profile in resourcesector transactions and is involved in the vast majority of IPOs originating in Asia that involve placements into Canada. OUR OFFICES

Litigation Group A Canadian Leader in Business Law Litigation The National Litigation Group at Stikeman Elliott has earned a reputation as a market leader in Canada s largest business centres. Members of the group regularly act on a wide range of litigation relating to commercial contracts, class actions, securities, tax, competition/antitrust, product liability, intellectual property and allegations of unfair competition, professional negligence, directors and officers liability including breach of fiduciary duty, defamation, insurance, energy, real estate, insolvency, transportation (aviation, marine and rail), fraud, construction, employment, human rights, environmental and regulatory and constitutional matters. Recognition for Our Work Stikeman Elliott s National Litigation Group is rated among Canada s top-tier business litigation practices by domestic and international legal directories: > The firm acted on 4 of the Top 10 Business Cases in Canada for 2009, as selected by Lexpert, more than any other firm. Diligent lawyers who spend their time understanding the situation and issues of the client thoroughly. Chambers Global 2011 Client Interview > Ten litigators (representing its Toronto, Montréal and Calgary offices) were cited in the prestigious Lexpert/American Lawyer Guide to the 500 Leading Lawyers in Canada in the areas of Arbitration, Class Actions, Competition, Corporate Commercial, Corporate Tax, Directors and Officers Liability, Energy (Electricity Regulatory), Insolvency & Financial Restructuring and Securities Litigation. > Ten lawyers are cited in Lexpert's Guide to the Leading U.S./Canada Cross-border Litigation Lawyers in Canada. > The Canadian Legal Lexpert Directory cites Stikeman Elliott litigators among those recommended in the areas of Class Action, Corporate Commercial, Corporate Tax, Directors and Officers Liability, Competition and Securities. The Directory ranks five of the firm s Montréal litigators as leading lawyers in Corporate Commercial and two in the area of Directors and Officers Liability. > Three of the Group's litigators appear in Legal Media Group's The World's Leading Lawyers Expert Guide in the Litigation sector. > Best Lawyers in Canada has ranked Stikeman Elliott with the most lawyers listed in International Arbitration in Canada. They have also recognized 10 Stikeman Elliott practitioners in Corporate and Commercial Litigation, four in Competition Litigation and Insolvency, three in Class Action Litigation and two in each of Alternative Dispute Resolution and Directors and Officers Liability. > Internationally, seven of the Group s litigators are listed and ranked in the Chambers Global Guide to the World s Leading Lawyers for Business in Dispute Resolution, Restructuring/Insolvency, Intellectual Property and Competition Litigation. LITIGATION

> Eight of the group's litigators are listed in the International Who's Who of Business Lawyers in the areas of Commercial Litigation, Arbitration, Insolvency and Insurance. > Six litigators are recognized in the PLC Which Lawyer? in Dispute Resolution. Experience at Every Level of Canada s Courts and Tribunals Members of the Litigation Group are regularly retained to act in a wide range of proceedings, from injunction applications to complex trials and appeals at all levels of provincial and federal courts. Members of the group appear regularly before securities regulators, energy regulators, municipal boards, the Competition Tribunal, the Trade-mark Opposition Board, the Patent Appeal Board, the National Transportation Agency, the CRTC (Canada s communications regulator), liquor licensing boards, human rights commissions, arbitration panels, commissions of inquiry and the governing bodies of various institutions and professional disciplines. Regulatory Expertise Stikeman Elliott is well known for its expertise in providing regulatory advice in a range of industries. The firm acts regularly for clients in regulatory proceedings arising from both competition and securities investigations, as well as in a broad range of regulated industries, such as aviation, A unique characteristic of the firm is the ability to be abundantly prepared for all contingencies, while still taking a pragmatic approach to the problems and issues in question. Chambers Global 2011 Client Interview electricity, oil and gas, insurance, telecommunications and transportation. We have extensive advocacy experience before all levels of trial and appellate courts in every province and territory in Canada, the Federal Court of Canada, and the Supreme Court of Canada, as well as various administrative tribunals, including the Competition Tribunal and the Ontario Securities Commission. Arbitration Arbitration has become the principal forum for the resolution of international commercial and investment disputes. For such disputes, clients require seasoned counsel with a deep understanding of the arbitral process. Our practice has been ranked first in Canada for the number of leaders in this field by Best Lawyers and includes a number of individually ranked lawyers with experience at all levels of international ad hoc arbitrations, under the UNCITRAL rules, domestic ad hoc arbitrations throughout Canada and arbitrations administered under the rules of various institutions. Many of our lawyers are trained in both common law and civil law traditions and many have experience both as counsel and as arbitrators in international disputes, as well as extensive high-level government experience. As a result, we are uniquely positioned to understand the important legal issues and the strategic business factors at play to achieve a successful cost-effective resolution for our clients. Trusted by Business Members of the Litigation Group have acted as counsel to significant public and private corporations in a wide variety of sectors of the economy, major Canadian and foreign financial institutions, all levels of government (including provincial regulators), and a variety of charitable institutions. Members of the group have represented trustees, receivers, monitors, creditors or debtors in most of the major insolvency and restructuring matters that have arisen in recent years. LITIGATION

Canada s Cross-Border Specialists The Litigation Group has extensive experience with legal issues that transcend Canada s borders. Whether it is an international insolvency or the defence of a class action commenced as a follow-on to class actions outside Canada, Stikeman Elliott litigators have earned a reputation as cross-border specialists who work effectively with lawyers and experts from other jurisdictions. In December 2010, nine of our group members were listed as Canadian leaders in Lexpert s Guide to the Leading U.S./Canada Cross-Border Litigation Lawyers in Canada. LEXPERT 2010 LEADING U.S./CANADA CROSS-BORDER LITIGATION LAWYERS IN CANADA CORPORATE-COMMERCIAL, CLASS ACTION & SECURITIES Louis P. Bélanger (Montréal) Peter Howard (Toronto) Katherine Kay (Toronto) INTERNATIONAL ARBITRATION Benjamin Greenberg (Montréal) TAX Cliff Rand (Toronto) Our Clients Some of our litigation clients include: INSOLVENCY & CORPORATE RESTRUCTURING David Byers (Toronto) Sean Dunphy (Toronto) COMPETITION/ANTITRUST Paul Collins (Toronto) Katherine Kay (Toronto) INTERNATIONAL TRADE Glenn Cranker (Montréal) > Air Canada > Bank of Nova Scotia > Briggs & Stratton Corporation > Bristol-Myers Squibb Canada Inc. > Canadian Imperial Bank of Commerce > Canadian National Railway > Canadian Real Estate Association > ebay Canada Inc. > EDS Canada Ltd. > Government of Belize > ING Canada > Insurance Bureau of Canada > Laurentian Bank of Canada > LG Display > Liberty Mutual > Lloyd s of London > Maritime Life Assurance Company > Mazda Canada Inc. > Nortel Networks Ltd. > NVIDIA Corporation > Royal Bank of Canada > Siemens AG > Sony Corporation > TJX/Winners > Toronto-Dominion Bank > Universal Music > Weyerhaeuser Company Ltd. > YBM Magnex Helping Clients Avoid Unnecessary Litigation Recognizing that most clients wish to avoid litigation, the Litigation Group regularly advises on the appropriateness of Alternative Dispute Resolution (international, domestic, ad hoc or institutional) and on the different forms of ADR that should be considered. Members of the group can also advise clients on how to arrange their affairs to avoid litigation, before problems arise. Involved in the Legal Community The Litigation Group is a committed participant in Canadian legal education. Members of the group teach advocacy in the law schools of Western Ontario, Queen s, McGill and Montréal Universities as well as École du Barreau du Québec. They have also served on several Canadian Bar Association s provincial continuing legal education committees and as LITIGATION

Directors of The Advocates Society. Many members have published articles on a variety of litigation and advocacy topics and have presented papers and spoken at national and international conferences. Unsurpassed Service: On Budget, On Time Stikeman Elliott s goal is to provide the best client service at a fair price, while observing the highest professional standards. The firm puts together teams that can work ably and efficiently, while maintaining continuity of advice and keeping to the client s budget and time requirements. Litigation clients benefit from the intellectual and technical resources of one of Canada s largest business law practices, including specialized litigation law clerks who can quickly organize documentation relevant to a client s file using Stikeman Elliott s customized document management software. LITIGATION

Tax Litigation Group Stikeman Elliott is a leading law firm in the area of taxation and tax planning, advocacy and litigation. From its inception in 1952, the firm has specialized in taxation, including litigation and tax controversy matters for Canadian and international business enterprises, in the context of both standalone tax mandates and integrated corporate-commercial and tax mandates. The Tax Group has extensive experience in tax litigation before all levels of court from the Tax Court of Canada to the Supreme Court of Canada. Many of the cases that have defined important tax principles or have resulted in changes to the law have been argued by members of our Tax Group. Beyond formal proceedings, we advise clients in negotiations with the Canada Revenue Agency and provincial tax authorities. Our experience in tax litigation also assists clients in assessing the tax risks associated with particular transactions, including the potential application of the general anti-avoidance rule. Furthermore, we engage in tax-related matters regarding advance tax rulings, reviewing the tax implications of commercial litigation and proposing effective tax treatment of litigation damage awards. We also advise with respect to commodity tax litigation, including excise tax treatment, income and revenue declarations and the determination of royalty payments. The Tax Group also represents taxpayers who need assistance in managing large or complex tax audits, including transfer pricing audits, and in responding to or challenging formal requirements by tax authorities to provide information and documents. Our Tax Group has been recognized as a Canadian leader in the 2012 Chambers Global Guide to the Leading Lawyers for Business, the 2012 Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada and the 2012 Canadian Legal Lexpert Directory. Our senior tax litigator, Cliff Rand, has been noted in the 2011 Guide to the Leading US/Canada Cross-Border Litigation Lawyers in Canada in the area of Corporate Tax Litigation, 2012 Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada in the area of Corporate Tax Litigation, and in The Canadian Legal Lexpert Directory 2012 as a practitioner "most frequently recommended" in the Corporate Tax Litigation sector. TAX

TORONTO 5300 Commerce Court West, 199 Bay Street, Toronto, ON, Canada M5L 1B9 Tel: (416) 869-5500 Fax: (416) 947-0866 MONTRÉAL 1155 René-Lévesque Blvd. West, 40th Floor, Montréal, QC, Canada H3B 3V2 Tel: (514) 397-3000 Fax: (514) 397-3222 OTTAWA Suite 1600, 50 O Connor Street, Ottawa, ON, Canada K1P 6L2 Tel: (613) 234-4555 Fax: (613) 230-8877 CALGARY 4300 Bankers Hall West, 888-3rd Street S.W., Calgary, AB, Canada T2P 5C5 Tel: (403) 266-9000 Fax: (403) 266-9034 VANCOUVER Suite 1700, Park Place, 666 Burrard Street, Vancouver, BC, Canada V6C 2X8 Tel: (604) 631-1300 Fax: (604) 681-1825 NEW YORK 445 Park Avenue, 7th Floor, New York, NY 10022 Tel: (212) 371-8855 Fax: (212) 371-7087 LONDON Dauntsey House, 4B Frederick s Place, London EC2R 8AB England Tel: 44 20 7367 0150 Fax: 44 20 7367 0160 SYDNEY Level 12, The Chifley Tower, 2 Chifley Square, Sydney N.S.W. 2000 Australia Tel: (61-2) 9232 7199 Fax: (61-2) 9232 6908 www.stikeman.com This publication provides general commentary only and is not intended as legal advice. Stikeman Elliott LLP carbonneutral SINCE 2008 Stikeman Elliott is the first national Canadian law firm to be certified Carbon Neutral. More information is available at www.stikeman.com The contents of this document has been printed on paper sourced from managed forests and certified accordingly by international organizations.