About

Editor’s note: This interview was conducted prior to March 2020. Mark now works at Gowling WLG.

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

In 2018, together with our Mosaic Transit Group consortium partners, we successfully won and achieved closing of the C$2.5bn Finch Light Rail Transit project in Toronto. Also in 2018, together with our Bridging North America consortium partners, we successfully won and achieved closing of the C$5.7bn Gordie Howe International Bridge project between Windsor and Detroit, which is the largest cross-border P3 project in Canadian history. Both projects involved lengthy procurements and complex and unique technical, commercial and financing challenges that required innovative solutions. They each won numerous industry awards.

In 2019, together with our Rideau Transit Group consortium partners, we executed a material variation to the existing Ottawa Light Rail Transit Project Agreement, to add maintenance and rehabilitation of Stage 2 of the Confederation Line LRT project to our existing agreement. Also in 2019, we completed the sale of 100% of our equity interest in the Northeast Anthony Henday project in Edmonton, Alberta.

Over the past two years, we have either participated or continue to participate in the procurements for many of the largest and most complex infrastructure projects in Canada, including the Go Expansion On-Corridor project in Toronto for the Go Train network expansion, the Highway 104 project in Nova Scotia, the Broadway Subway project in Vancouver, the Pattullo Bridge project in Vancouver and the Louis-Hippolyte Lafontaine Bridge-Tunnel in Montreal.

How do you feel in-house legal leaders can successfully introduce and implement a culture within a legal department?

In-house legal leaders are well-positioned to set a tone and reinforce company culture within the legal team, while developing a legal team culture that can operate within the company culture. In-house legal leaders often have a direct link to the most senior executives at a company and can serve as a link for the principles of the company culture that emanate from those individuals. It is also important for both the legal team and non-legal team employees to see the in-house legal leaders as embodying and espousing the principles that form a company culture. Our legal team holds weekly meetings to discuss work allocation, project and company matters, lessons learned and any other current matters that should be discussed as a group. This meeting serves as a forum to highlight and reinforce the principles that form both the company and the legal team cultures. The legal team works closely with the executive, project development, technical and finance teams at the company, and it is therefore important that open communication and collaboration, key elements of our company and team culture, are encouraged both within the legal team and also with our business partners.

If you had to give advice to an aspiring in-house lawyer or general counsel what would it be and why?

Strive to become an expert in your area, build positive relationships with colleagues, seek meaningful work and make it a primary goal to add value to your business. Internal and external partners will appreciate and respect your contributions when you demonstrate legal expertise and when you are seen as adding value to the achievement of the business objectives.

How do you suggest in-house lawyers build strong relationships with business partners within their company?

First, I believe that in-house lawyers should become experts in their areas. It can be a challenge to earn the trust of business partners if they do not view you as an excellent lawyer, so this is a critical base to work from. Concurrent with establishing and demonstrating that expertise, an in-house lawyer should seek to add value to each task and to the business, whether from a legal or commercial perspective. Business partners recognise the importance of an expert, commercially-minded lawyer that is adding value to the business. Lastly, a strong relationship will require business partners to trust and respect your judgment, so search for and take advantage of opportunities to demonstrate the use of good judgment.

What techniques do you use to provide commercially-focused advice to your company, and how do you communicate these to more junior lawyers in the team?

It is critical to first obtain a good understanding of the issue that needs to be addressed. I then spend the time needed to consider the issue and the various solutions, before “serving” the recommended path forward to a business colleague. It is usually beneficial to distil the advice and keep it high level, but to be prepared to provide more granularity if requested. The business partners often do not need to hear about the complexity that led to the high-level advice, and providing details about the complexity may weaken the delivery of the clear and concise conclusion that they seek. Our team’s lawyers are encouraged to be thorough in their consideration of an issue, but succinct in their delivery of advice.

FOCUS ON: CHANGE

An evolving industry environment has demonstrated the need for our legal team to be nimble and receptive to change. The infrastructure industry in North America is currently engaged in an open dialogue regarding market challenges ranging from contractor withdrawals, risk transfer imbalance, political risk and uncertainty, disputes and procurement delivery alternatives. Governments continue to prioritise closing the infrastructure deficit and all stakeholders are working hard to solve issues that have arisen in the delivery of the largest infrastructure projects that our company pursues. In this context, it is important that in-house lawyers are thinking “outside the box” in order to contribute to new approaches engaging with government clients, partners and funders.

We also need to be humble to acknowledge that some precedent approaches may not have anticipated unforeseen challenges or be appropriate for future projects. More than ever, reverting to precedents and stating that “this is how we have done it in the past” is insufficient, as there is increasing awareness that new ideas are required to adapt to the evolving market. These changes have reinforced the importance of establishing principles that guide our business and then understanding how those principles need to be implemented in the context of an industry undergoing change. The legal team plays a central role in ensuring that these core business principles are articulated and reflected in documentation.