Archive for the 'Courts' Category

The Cost of Investigative Internet Research

Published on January 16, 2012 in Courts, How to Become a Professional Private Investigator, Methods, Power User Tips, Private Investigator, Report Writing, The Investigator's Computer and Training & Education. 1 Comment Tags: , .

Why does it cost so much just to look on the Internet?”

I get this question a lot, and too often from “professionals” who should know better. I will list a few of the reasons here.

To begin with, I never know how the research results will be used in the future. That means that the results must be properly documented so that it would be reproducible if someone else with similar skill did the searches at the same time as I did.

If at some future date what I find becomes important evidence, then how it was found, where it was found, when it was found, and what it actually looked like becomes very important. My report and the supporting material may be the only proof of the existence of the material being entered into evidence.

The computers must be free of malicious code (S. 31 Canada Evidence Act). We often set aside a computer for this purpose after doing some Spring-Cleaning.

The logic of the research process must be clear and easy to explain to anyone. This logic must be explained in the report. Search statements must be recorded. The project directory and file naming and structures must be logical and properly documented. The evidence must have a clear and documented chain of custody.

Providing this evidence requires skill, training, experience, software, computers, office space, support staff, and time.  Finally, did you know it takes at least twice as long to do the report as it does to do the research?

 

Bulk Sales & the PI

Published on December 7, 2011 in Canada, Company Research, Competitive Intelligence, Courts, Methods, Private Investigator and Sources. 0 Comments

BULK SALES ACT SEARCHES – Ontario Only

Sales of large quantities of stock or the sale of assets and equipment of the business itself outside the regular course of business are considered a sale “in bulk”. The Bulk Sales Act is designed to protect the creditors of a business owner by requiring the owner to follow the procedures of the Act for sales outside the regular course of business.

If a buyer wishes to purchase the assets and equipment of a business, the seller “in bulk” must provide an affidavit stating that all creditors have been paid, or they will be paid from the proceeds of the sale.  In some cases the buyer pays an assigned trustee and creditors of the business may wish to waive their rights in which case the proceeds are paid.

A ‘Bulk Sales search‘ determines if a bulk sales affidavit has been filed with the relevant Ontario Superior Court of Justice office.

The Private Investigator (PI)

If you are interested in an Ontario business’s assets, debts, cash flow, and general financial condition, then a a Bulk Sale Act search is an important search.  It may tell you if the business is failing or if it has suffered a set-back.  You may learn of an abandoned line or the sale of a production facility.  You may learn of a legal action in another jurisdiction by contacting or researching the other parties to the bulk sale. Any sale that indicates that creditors will be paid from the proceeds of the sale may indicate a judgment that is being satisfied or it may be part of the settlement of a claim.

 

Two Scams Investigators Fall For

Published on September 9, 2011 in Canada, Courts and Private Investigator. 1 Comment Tags: , .

Cell Phone Pings

Some companies claim to be able to perform real-time “ping” geo-location tracking of almost any cell phone. After paying, the Investigator is told that the cell phone is being pinged but has not answered and the Investigator is out hundreds of dollars. This is not how Location Based Services work in a mobile phone network.

Canadian Criminal Records

Some companies, usually in the U.S.A., claim that they can do CPIC searches. The normal answer is that nothing was found. Of course no search of any kind was performed. They also charge for searches by province when CPIC covers all of Canada. Sometimes, the single-province searches are advertised as CPIC but actually search the provincial court case management system.

BC Environmental Law Violators

Published on August 10, 2011 in Canada, Company Research, Courts and Sources. 0 Comments Tags: .

Environmental law violators in British Columbia are now in a searchable online database. “The free database includes a wide variety of compliance and enforcement actions taken by ministry staff and enforcement officers. It includes orders, administrative sanctions, tickets and court convictions covering hunting and fishing, open burning, mud bogging, dam safety, and pesticide and pollution violations.”

Mareva Injunctions

Published on May 16, 2011 in Canada, Courts, Fraud, Legislation and Private Investigator. 0 Comments Tags: .

Named for Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd’s Rep 509, a Mareva Injunction is a court order which freezes assets so that a defendant cannot surreptitiously dissipate assets to prevent the enforcement of a judgment.

These injunctions are widely recognised in common law jurisdictions and such orders can have world-wide effect.  Similar provisions are now available in the rest of Europe, under Article 9(2) of the European Union Directive on the enforcement of intellectual property rights, which was approved in April 2004.

The injunction is often granted ex parte and pre-trial based on affidavit evidence alone.  A Norwich order sometimes precedes the Mareva Injunction.  A Mareva Injunction is often combined with an Anton Piller order. The combination of a Mareva Injunction and an Anton Pillar order can be devastating to a business or professional person by freezing assets and revealing proprietary processes and data to competitors. However, this does prevent a foreign company from removing its assets from the country before a trial can take place. Today’s telecommunications makes moving assets almost instantaneous. The Anton Pillar order prevents the destruction of evidence before trial.

Norwich Orders

Published on May 11, 2011 in Courts, Fraud, Legislation, Methods and Private Investigator. 0 Comments Tags: .

Norwich Pharmacal Order

A Norwich order is a pre-action discovery mechanism.

In Norwich Pharmacal Co. v Customs and Excise Commissioners [1974] AC 133, the owner of a patent knew that infringing goods were entering the UK, but could not ascertain the identity of the goods. The Commissioners, in the course of performing their duties, had information that would identify the imports.  Also, they had unknowingly played a part in facilitating importation of infringing goods. The House of Lords found that where a third party had become involved in unlawful conduct, they were under a duty to assist the person suffering damage by giving them full information and disclosing the identity of wrongdoers. If the third party bears expense in assisting compliance with an order, the person seeking assistance is bound to reimburse those expenses. That expense however would be reflected in an award of damages against the ultimate tort-feasors, and this be recovered after the final hearing.

Canada and the Norwich Order

The Court in Isofoton S.A. v. Toronto Dominion Bank, outlined five elements that a court should consider before granting a Norwich order.

Continue reading ‘Norwich Orders’

New Standard for Privacy on Ontario Work Computers

Published on April 4, 2011 in Canada, Courts, Forensics, News and Privacy. 0 Comments Tags: , , , , .

I think R V. Cole, 2011 ONCA 218 will become the leading case on an employee’s expectation of privacy on a work-provided computer. This appeal was a partial victory to a Sudbury high school teacher charged with possession of child pornography. The Ontario Court of Appeal ruled that police violated his Charter rights when they searched his laptop without a warrant.

A search of Cole’s computer by the high school’s IT staff found sexually explicit photos of a Grade 10 student that he acquired from the student’s email account. The laptop was then turned over to the police and searched without a warrant. The proceeds of the police search were excluded while the IT technician’s search was proper as it was for the purposes of maintaining the school board’s network and the laptop.

Justice Karakatsanis wrote for the Ontario Court of Appeal which found the employee had a reasonable expectation of privacy in the contents of his laptop based on the following factors:

  • he had exclusive possession of the laptop;
  • he had permission to use it for personal use;
  • he had permission to take it home on evenings, weekends and summer vacation;
  • there was no evidence the board actively monitored teachers’ use of laptops;
  • the school board had no clear and unambiguous policy to monitor, search, or police the teacher’s use of his laptop.

This seems consistent with the prevailing case law regarding the recognition of an employer’s right to govern the use of their systems through policy, but it also recognises the rising privacy expectations of employees in the personal use of an employer’s system.

Changes to Canadian Pardons

Published on March 21, 2011 in Canada, Courts, Legislation, Sources and Uncategorized. 0 Comments Tags: .

Clarification on Bill C-23A

There is some confusion going around about Bill C-23. It was split into two parts, and because the second part, C-23B, has been the most debated, people associate C-23A, which received Royal Assent on 29 Jun 2010, with the changes proposed by C-23B, which has not yet been made law.

Bill C-23A only covers certain aspects of the full bill, while C-23B covers the bulk of the changes. Part A, which has been made law, covers the following:

1.    Lengthens pardon waiting periods from 3 years to 5 years and from 5 years to 10 years for certain crimes.

2.    Puts the onus on the applicant for proving that a pardon would bring them measurable benefit.

3.    Gives the Parole Board of Canada more discretion for granting pardon applications.

Bill C-23B will bring a few more changes, but for now, these are the basic changes that have already taken place. C-23B is scheduled for its third reading on March 24th and will undergo clause by clause consideration in April. For more information on these changes, please visit: http://www.canadianpardons.ca/. The Pardon & Waiver Wiki and Blog pages should be very  useful if you need to understand the Pardon and Waiver process in Canada.

Anton Pillar Orders

Published on March 11, 2011 in Canada, Courts and Private Investigator. 1 Comment Tags: , , , .

Anton Piller Orders, named after the famous 1976 English case, Anton Piller KG v. Manufacturing Process Ltd. [1976] Ch 55 1 ALL E.R. 779, which defined the process of civil search and seizure under common law.

An Anton Piller order is obtained ex parte, and allows the moving party to access the premises of the other party to gather evidence that the court fears may be destroyed if the search is not conducted immediately. To many people this resembles a private search warrant but it is not.  The contempt power is used to enforce them rather than the normal criminal process where physical force may be used to execute the Order.  Nor does the Order authorize entry.  Rather, it commands the defendant to permit entry.  The defendant may deny entry, and thereafter face contempt proceedings.  The plaintiff’s agents may not use force to effect entry in the face of the defendant’s denial of permission.  The defendant may move to have the access limited after the search. Therefore, the order doesn’t necessarily give the moving party immediate access to the evidence, rather it preserves it, so that access can be determined at a later time.

With a search warrant, those strangers are police officers, who may use reasonable force to execute their search.  With an Anton Piller order, the strangers are not police officers (although they will usually include one peace officer from the Sheriff’s office or a Bailiff in Quebec).  They may not use force to gain entry, but rather the threat of jail or other punishment.

The premise of these orders is that (a) the defendant is likely to act to frustrate the order if given notice of it in advance; and (b) there is a strong prima facie case that the defendant has already acted very badly.  As Anton Piller orders play an increasingly important role in protecting businesses from disgruntled or departing employees (as in Ridgewood cited below), it is important for Investigators to fully understand their obligation to properly execute these orders.

A number of judgments have condemned the improper execution of these orders. An Ontario case,  Ridgewood Electric (1990) v. Robbie, contains an  excellent background of the Anton Pillar Order in Para [23] and demonstrates how not to execute the order. In Harris Scientific Products v. Araujo (2005), 54 Alta. L.R. (4th) 195, the Alberta Court of Queen’s Bench ordered damages of $35,000 for trespass and punitive damages of $10,000. Furthermore, the Alberta Court of Appeal in Catalyst Partners Inc. v. Meridian Packaging Ltd. established that there had to be strong evidence showing a real possibility that the defendant would destroy documents, not merely an inference or suspicion in order to issue an Anton Pillar Order.  In Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 the SCC ruled that Celanese had the onus of demonstrating that no prejudice would result from their solicitors carrying on in the file. As a result of the execution of an Order, the Celanese solicitors had come into the possession of confidential information attributable to a solicitor-client relationship, and the court said that the solicitors “bear the onus of showing there is no real risk such confidences will be used to the prejudice of the defendant.” This contentious case led the SCC to better define the  requirements for successful preparation and execution of an Anton Pillar Order. The following guidance is distilled from Celanese Canada Inc. v. Murray Demolition Corp.

  • An independent solicitor should act as a neutral officer of the Court to supervise the execution of the Order. This person should explain the Order to the Defendant and provide a objective report to the Court.
  • Limit the scope to only necessary material and no material should be removed from the site unless pursuant to the terms of the Order.  This is not a fishing expedition. However, allocate enough time and be methodical in your execution of the Order while documenting every step in the process.
  • The moving party should provide an undertaking and/or security for damages if the Order is unwarranted or improperly executed. The court does not want to deal with imposing fines etc. as in Harris Scientific mentioned above.
  • Include a procedure for dealing with solicitor-client privilege or other confidential materials. The court does not want a repeat of this problem as seen in Celanese above.
  • Return seized material as soon as practicable.
  • Commence the search during normal business hours when the counsel for the Defendant is available for consultation. Again, this was a problem faced by the Defendant in Celanese.
  • The premises should not be searched, or items removed, without the presence of the defendant or his responsible employee.
  • Persons conducting the search should be listed by name rather than just the number of people permitted.
  • A detailed list of all evidence seized should be made and verified by the Defendant before leaving the site.

Court Orders Facebook Download

Published on March 2, 2011 in Canada, Courts and Social Sites. 0 Comments Tags: , , .

Judge orders secret meeting to download Facebook account

The judge issued an order compelling Ms. Sparks’ lawyer, James Crocco, to secretly arrange to have a colleague call the woman to a surprise meeting without telling her why and then order to her download the entire contents of her Facebook site, including any photos and videos, so it could be examined in court.”

Toronto Sun Surprised by Private Investigator

Published on January 22, 2011 in Canada, Courts, How to Become a Professional Private Investigator, News, News Media, Private Investigator and Social Sites. 0 Comments Tags: , , , , .

Private Investigators, Adjusters, and insurance companies get a lot of bad press due to bias, ignorance, and a desire to sensationalize the news.

In today’s Toronto Sun an article titled, How Facebook can screw you by Alan SHANOFF, the author states,

I wouldn’t be surprised to see insurance company adjusters and investigators trying to become a claimant’s “friend” to obtain inner circle access. Instead of a private investigator hiding in a van on your street or behind a bush, he might very well be tracking your movements in cyberspace.”

It’s obvious that SHANOFF would be surprised to learn that Private Investigators and Adjusters in Canada wouldn’t do this to a represented claimant.  I have written on this subject twice, and all the PI’s and Adjusters I have spoken to about this know that they may not “friend” the subject of an investigation if he or she is represented.  Simple fact checking would have corrected this.

Canadian Criminal Record Searches

Published on December 17, 2010 in Canada, Courts, How to Become a Professional Private Investigator, Methods, Private Investigator, Search Strategies and Sources. 0 Comments Tags: , .

Reading the following articles about Canadian criminal record searches should give you an understanding of how Canada’s criminal records are stored and searched.

Right to Consult a Lawyer?

Published on November 26, 2010 in Canada and Courts. 0 Comments Tags: , , .

In R. V. Sinclair (2010 SCC 35, Docket # 32537) the SCC now says that an accused does not have the right to a lawyer during questioning by the police.

The Police must tell the prisoner that he has the right to a lawyer. However, that only means he has to take whatever lawyer he is able to contact at the time the police allow him to try to contact one.  This decision means an accused only has the right to talk to whatever lawyer he can find (usually by telephone) regarding whether he should cooperate or not before the interrogation starts.

Fraud Not Important Enough to Prosecute In Ontario

Published on November 19, 2010 in Canada, Courts and Fraud. 0 Comments Tags: , , , , .

Reading the following article makes me wonder what happened to Canada when the Crown refuses to prosecute Tzvi Erez for a $27 million Dollar Ponzi scheme. Ontario Attorney General Chris Bentley obviously doesn’t understand that incompetence is the worst form of corruption.

Accused Ponzi schemer won’t be prosecuted

According to a Sept. 30 memo written by Tencer’s lawyer, Lou Brzezinski, assistant Crown attorney Donna Gillespie told him the charges were dropped “because the courts were tied up with more serious criminal matters [such as rape and murder].”

Brzezinski, whose client invested more than $1.2 million with Erez, claimed Gillespie said that “court time and availability of judges were insufficient … and as a result, hard choices had to be made.”

The Crown also suggested another reason charges were withdrawn was because the victim should have known better.

Assistant Crown attorney Gillespie echoed that consideration when she appeared before court to have the charges withdrawn.

Division of Powers – Vital Statistics

Published on October 15, 2010 in Canada, Courts, Private Investigator and Sources. 0 Comments Tags: , , , .

Vital Statistics – Birth, Death, and Marriage certificates

These bits of paper define our identity in today’s society.

The Solemnization of Marriage is a provincial matter according to S 92(12) of The Constitution Act of 1867. Birth and Death records are generally held to be a provincial matter under S.92(16) which reads, “Generally all Matters of a merely local or private Nature in the Province.” For the purposes of proper administration, the territories have been granted the power to record vital statistics.

One must be an authorised person to request these records, and most provinces, in most cases, are very careful to ensure that a person requesting such documentation is entitled to receive the document.  The Investigator will require a letter authorising such a search for these records from the person or estate involved.