Last year I wrote about the Tort for Negligent Investigations and how this would reach out and touch a Private Investigation firm in Canada soon.
Private Investigator Sued
The Ontario Court of Appeal has expanded the tort of negligent investigation to allow employees to sue private investigators hired by employers to probe suspected wrongdoing in the workplace. The unanimous ruling by Associate Chief Justice Dennis O’Connor and Justices Marc Rosenberg and Kathryn Feldman extends the newly created tort of negligent investigation to private investigators. This tort was first recognized by the Supreme Court in 2007 as applicable to police.
In Correia v. Canac Kitchens, 2008 ONCA 506 & [2008] O.J. No. 2497, the court has imposed a new duty of care regarding investigators. The plaintiff was an innocent employee mistakenly fired and arrested for theft following a private investigation launched by his employer. His name was confused with that of another employee with a similar name. The sequence of events that led to erroneous identification of Mr. Correia is summarized in the chronology in paragraph [8].
Every Private Investigator in Canada should pay close attention to this case and the circumstances that gave rise to it.
The Ontario Divisional Court, ruled in Petti v. George Coppel Jewellers Ltd. that polygraph test results are inadmissible as evidence in Ontario civil court proceedings:
Justice Quinn reviewed the law. He said that evidence that a person has offered to submit to polygraph testing can be admissible, but that was a neutral factor here, since both parties had made such an offer. Secondly, the questions and answers from the testing can be admissible, if they constitute admissions against interest. But the test results themselves are not admissible because they usurp the jurisdiction of the trier of fact. As His Honour said, “the court should not delegate its jurisdiction, even on consent”. Hence, a new trial was ordered.
Polygraphy was disallowed in criminal proceedings in a 1987 ruling of the Supreme Court of Canada.
John J. Furedy, Emeritus Professor of Psychology at the University of Toronto, maintains a site opposed to the polygraph that has links to research articles on the efficacy of polygraph tests.
Google has begun the indexation of Facebook pages.
The best approach to find Facebook content via Google is not to simply plug in name or keyword(s)…Try adding the keyword, “Facebook” to your initial query.
What the Investigator Must Know About Facebook
In the closed community of Facebook, Google asked permission to index the pages. If you are an Investigator, and your subject is represented, then asking permission to see his or her page is contact with a represented litigant. In Canada, if the opposing litigant is represented by council, then you may not contact him or her in person, by telephone, or electronically. In most cases you have to ask to be listed as a friend to view the subject’s Facebook page. Doing this will be considered improperly making contact with the litigant and whatever you find will be deemed inadmissible.
However, what you find in Google, other search engines, and unrelated Facebook pages may be used as the basis for a motion for the production of the subject’s entire Facebook page as happened in KOURTESIS V. JORIS (2007).
An article by John Polyzogopoulos, a partner of Blaney McMurty LLP, in the January 2008 edition of the Commercial Litigation Update explains a Norwich order can help victims of fraud determine what happened to the money.
The recent decision of Justice James Spence in Isofoton S.A. v. The Toronto-Dominion Bank should be of interest to anyone who suspects they may have been the victim of fraud. In that case, Justice Spence granted a Norwich order to obtain the banking records of a party suspected of defrauding the applicant of over $3 million. The unique nature of the disclosure order was that it was directed not to the alleged fraudster, but to the fraudster’s bank. The disclosure order was made to assist the applicant in investigating the fraud and determining what happened to its funds.
The article also illustrates the need for due diligence research prior to entering into an agreement with a previously unknown supplier. Once the victim realised that the supplier was not acting in good faith, they hired a PI who determined that the the supplier was a company without the assets necessary to deliver the contracted goods.
Michael Thomas, a recovering corporate investigator in the Washington, DC-area, who blogs at The Daily Caveat put us onto the Porter Wright SEC Actions blog. This blog is a wealth of information about issues surrounding SEC enforcement actions.
The Supreme Court of Canada has recognised the tort for incompetent investigation. This area of law has been receiving more attention over the past decade and I expect we will see a case involving a Private Investigator over the next few years. Continue reading ‘Tort for Negligent Investigations’
The CRA vs. Canadian men
by Karen Selick, National Post Published: Wednesday, November 07, 2007
A wonderful article about the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Privacy Act and the infinite stupidity of the bureaucrats enforcing acts written by inept people who do not understand or care about the consequences of the laws they create.
In its 2007 decision in Catalyst Partners Inc. v. Meridian Packaging Ltd., [2007] A.J. No. 667 (C.A.), the Alberta Court of Appeal considered what evidence is required to satisfy the criteria for obtaining an Anton Piller order. In overturning the lower court’s decision and setting aside the Anton Piller order in this case, the Court of Appeal made it clear that strong evidence showing a real possibility the defendant will destroy documents is necessary before such an extraordinary order will be granted.
From Landon P. Young of Stringer Brisbin Humphrey
Two disgruntled senior employees resign effective immediately without notice. The company is caught off guard. The departing employees join a competitor that has just opened a new office and take a significant chunk of business and support staff with them…
…the employees had signed employment contracts that included restrictive covenants. These covenants enabled Staebler to sue the former employees, as well as their new employer, for damages…
… the (Ontario) judge concluded that the covenants were enforceable…
In Canada, parties to a civil action must disclose all documents in their possession and control that relate to the lawsuit.
This broad documentary disclosure and production requirement has prompted many provinces to adopt an implied undertaking rule that protects parties from improper publication of the disclosure materials. Violation of this undertaking may lead to a conviction for Contempt of Court.
The disclosure material may only be published once it has been exposed in open court in some manner, such as in testimony, as an exhibit, or as part of an affidavit. Of course, the contents of the Discovery transcript may not be published.
Disclosure material and Discovery transcripts do occasionally appear in court files. Whoever handles this material must understand what may be copied and disseminated, and what must remain in the court file. Otherwise somebody may end-up facing an unsympathetic Judge. After all, ignorance is no defense.
A whistle blower is a person who discovers illegal activity going on in government and exposes that illegal activity.
Jeffrey Monaghan, who was arrested for leaking documents that prematurely revealed details of the government’s climate- change plan, was not a whistleblower. If he released the documents, then he violated the terms of his employment and committed a criminal offence.
Monaghan might like us to believe he is a crusader for the public good, but that is no more creditable than his claim to be an anarchist while working for the government and a member of a “collective” that runs a book store. Don’t let this nomenclature-challenged individual, and his media groupies, confuse you. He’s not a whistleblower and he is not an anarchist. Shame on the so-called journalists for using this incorrect nomenclature.
The Companies Creditors Arrangement Act ( R.S.C., 1985, c. C-36 ) (CCAA) allows a plan of compromise between debtor and creditors to resolve the financial problems of a distressed company. The CCAA may only be applied where claims against the debtor company exceed $5 million. In short, the CCAA provides the insolvent company protection from the actions of creditors and allows the insolvent company to continue operations while a plan of arrangement is constructed.
To date, CCAA information is scattered across the country in various court offices, without any centralized recording. At the outset of a recent study, Industry Canada estimated 175 cases exist; the study located 219 cases under the act. There may be more that the study did not find.
Currently no requirements exist for debtor corporations in CCAA proceedings to report data or to publicly disclose it in a consistent way. Financial information and pension deficit information need to be reported in a consistent and accurate format. This is particularily important regarding pensions, as unfunded pension liabilities have impelled many recent CCAA filings.
A proposed amendment to the Bankruptcy and Insolvency Act, may force the Office of the Superintendent of Bankruptcy to collect uniform data into a cross-country database.
In the R v Waters [2007], the UK Court of Appeal upheld the sentence of four months imprisonment for a man who had conspired to install spyware software on his wife’s computer. The Court of Appeal ruling stated:
Computers are an established part of modern life. An increasing amount of personal and private information is kept on computers, not only by the State and large organisations but also by individuals. The privacy of that information must be protected and it is vulnerable to the kind of unauthorised interference and intrusion that occurred in this case. The judge correctly identified deterrence as an element of sentencing in this case. In our judgment, a sentence of imprisonment for offences such as this was not wrong in principle.
The Federal Court of Canada has recently awarded Microsoft Canada Co. the highest statutory damages in an intellectual property case in the country.
The court’s decision directing Inter-Plus Inc., a Montreal-based software reseller, to pay Microsoft a total of $500,000 in statutory damages and $200,000 in punitive damages was called “ground breaking” by software industry insiders.
LINK
Hidden devices set up in the local arena, municipal building and firehall in small Ontario community
The Globe and Mail reports that the small rural Ontario municipality of Highlands East, in the Haliburton area, had installed cameras in several facilities. The article described the device thusly:
“The camera was powered up and broadcasting both audio and video, it was set up so anybody within about 300 feet who had that type of receiver could watch in there and listen with impunity.”
I think somebody in Highlands East should read Part VI of the Canadian Criminal Code. If this device captured audio then it might be considered a listening device used to illegally intercept private communications.
