THE LAWYERS WEEKLY Vol. 28, No. 10 www.thelawyersweekly.ca July 4, 2008 McKELLAR STRUCTURED SETTLEMENTS INC. www.mckellar.com 1-800-265-8381 Highlights SCC gives PARALEGAL PROGRAM APPROVED BY LAW SOCIETY WHEAT BOARD VICTORY go-ahead The Charter prevents the feds from imposing to BCE with a gag order PAGE 2 no reasons SAFETY FIRST Workplace impairment LUIS MILLAN MONTREAL testing gives employers immediate results When the Supreme Court of PAGE 7 Canada released a terse two-para- graph judgment that overturned an appeal court decision blocking the GETTING ITS $52-billion buyout of telecom giant BCE Inc. by a group of pri- ACT TOGETHER vate equity funds led by the Ontario Teachers’ Pension Plan, a collective sigh of relief was almost audibly heard across corporate Canada. PAUL LAWRENCE FOR THE LAWYERS WEEKLY But the unanimous 7-0 deci- Wanda Forsythe is chair of Seneca College’s School of Legal and Public Administration. Seneca is the second sion that affirmed the trial judge’s community college to win accreditation for a paralegal program in Ontario. See story on page 3 approval of the plan of arrange- ment has also set the stage for weeks, if not months of rife specu- lation over how boards of direc- tors should approach mergers and acquisitions given the absence of Negligent investigation tort extended The federal government reasons. “It would be very helpful to Fired employee can sue investigators for workplace probe, says appeal court needs to update the provide guidance to boards of Privacy Act directors in light of the apparent The June 24 judgment is also of CRISTIN SCHMITZ OTTAWA ambiguity created with the note to commercial lawyers and liti- PAGE 11 Quebec Court of Appeal’s deci- gators, as well as to employment sion as well as the Peoples’ deci- The Ontario Court of Appeal has law practitioners, for its detailed sion,” remarked Anita Anand, the expanded the tort of negligent review and clarification of the LAW FIRM GROWTH associate dean of the faculty of investigation to allow employees to murky law surrounding the torts of law at the University of Toronto. sue private investigators hired by intentional interference with eco- Three strategies for Last May, the Quebec Court of employers to probe suspected nomic relations and inducing growing your firm Appeal stunned the business and wrongdoing in the workplace. Nelson Harrison breach of contract, said Brett Har- legal community after it deter- The unanimous ruling by Asso- rison of Toronto’s McMillan, who PAGE 19 mined that the proposed privatiza- ciate Chief Justice Dennis Rebecca Nelson of Toronto’s represented the employer. tion of the Montreal-based O’Connor and Justices Marc Azevedo & Nelson, counsel for the “The net result of the decision is telecommunications company was Rosenberg and Kathryn Feldman plaintiff who was wrongly accused that employers do not owe a duty not fair and reasonable to Bell extends to private investigators the of theft by his employer, told The ‘not to conduct a negligent investi- Canada’s bondholders. (Bell newly created tort of negligent Lawyers Weekly that to the best of gation regarding an employee,” said Canada is a subsidiary of BCE.) investigation – which was first rec- her knowledge the case marks the Harrison. “This is extremely good COMING The transaction, structured as a ognized by the Supreme Court in first time in Canada that employees news for employers.” Jul 11, 2008 plan of arrangement under the 2007 to apply to police. have been given the green light to With respect to the two economic Focus On PUBLICATIONS MAIL AGREEMENT NO. 40065517 Canada Business Corporations In a win for employers, however, sue for negligence the private inves- torts, the decision indicates that the Act (CBCA), provides BCE share- the court declined to further expand tigators hired by their employers. impugned conduct cannot merely be Business Law holders with a 40 percent pre- tort liability to employers who par- “It’s an important extension,” negligent, but must instead be inten- mium over BCE’s going share ticipate in, or conduct, negligent she noted, “because private investi- tional since competitive activity is to See BCE Page 14 workplace investigations. gators are largely not regulated.” See Investigation Page 24 COMING Jul 18, 2008 Focus On YOUR CLIENTS JUST BOUGHT Intellectual Property A HOME WITH A DREAM KITCHEN. 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The police, who “anything but negligent.” investigator for its carelessness, 2002 to surreptitiously investi- apparently relied mostly, if not be encouraged as a benefit to the “If there was any wrongdoing in which allegedly led to the kind of gate suspected theft and drug exclusively, on Canac’s investiga- economy, said Harrison. this case it was not done by our damages claimed in this case, dealing at Canac’s plant. tion, are also being sued. “The main difference between client,” she stressed. including post-traumatic stress dis- The appeal court reversed a par- The Court of Appeal reversed the two torts is that in the tort of The main plaintiff is an inno- order,” Justices Rosenberg and tial summary judgment that was the motion judge’s decision not to inducing breach, the third party is cent employee who was mistak- Feldman wrote in joint reasons. “As granted last year dismissing several allow Correias’ intentional inflic- induced to commit a wrongful act enly fired and arrested for theft, at the private sector becomes more aspects of the plaintiffs’ wide- tion of mental distress claim to pro- and the tortfeasor becomes liable as age 62, following a private investi- and more involved in activities that ranging claims. ceed against Smith. an accessory to the wrongful con- gation launched by his employer. were traditionally within the sphere The effect of its decision is to “Marilyn Smith was the person duct,” he explained. “Whereas in His name ended up mixed up with of public policing, the greater the revive the plaintiffs’ claim for negli- who terminated Mr. Correia and the tort of intentional interference that of another employee with a likelihood that their negligence gent investigation against the Aston facilitated turning him over to the with economic relations, the third similar name. could lead to wrongful arrests and defendants, and to permit the plain- police to be charged with criminal party’s action need not be wrongful The Court of Appeal ruled that in even convictions. We see no inco- tiffs to proceed with their suit offences following the negligent and the tortfeasor has primary lia- this context there was the required herence in requiring a private inves- against Kohler and Smith, along investigation, in which she herself bility for internationally causing the foreseeability of harm from a negli- tigator to be careful in its investiga- with Canac, for wrongful infliction made the error that caused blame to plaintiff loss by unlawfully inter- gent investigation, as well as suffi- tion; surely the client would expect of mental distress. be falsely cast on him. In law she fering with the liberty of others.” cient proximity to the plaintiff, to nothing less from the investigator.” Correia was a longtime Canac may be held personally liable for Laurie Murphy of Toronto’s justify imposing a prima facie duty The Court of Appeal partially supervisor when he was fired and her conduct,” said the court. “The McCague Peacock, who represents of care on the private investigation allowed the appeal of Joao Cor- arrested for theft at his workplace. rule in Said v. Butt does not apply the defendant private investigation firm. Moreover public policy con- reia, and his family, who are Although Aston’s undercover pri- here, because we are talking about firm in the case along with Lisa La siderations did not negate the rea- suing his ex-employer, Canac vate investigator supplied Canac responsibility for a separate action- Horey, said her clients are still con- sons in favour of expanding the tort Kitchens, Canac’s parent com- with the name of someone else – able tort, not for the wrongful ter- sidering whether to apply for leave of negligent investigation to such pany Kohler Ltd., and Marilyn Joao Corriero, an employee who mination of the contract of employ- to appeal. firms, the court held. Smith, Canac’s head of human was nearly 40 years younger than ment itself.” The court’s imposition of the “While the primary relationship resources. The plaintiffs are also Correia – Canac mistakenly identi- new duty of care will affect quasi- is between the employer and suing Aston Associates Investiga- fied Correia as the culprit. The Reasons: Correia v. Canac Kitchens, investigative forces and their employee, we see no reason why tions Ltd. and some of its per- company summarily fired him and  O.J. No. 2497. Special interest is restorative justice Court of Québec judges among Domestic Continued From Page 3 the best paid in the country lot,” said Neaman, adding “In Salary salaries it believes should be South Africa, (the program) has Continued From Page 3 awarded to judges. Indeed, its really taken off.” eleventh-hour proposals pre- “Prosecutors do outreach into Johnson determined that judges vented the committee from taking the community helping people to must, as with all public service a stance on certain issues such as understand what domestic vio- employees, contribute to the gov- group insurance, the report point- lence is,” she noted. “The program ernment’s effort to tackle its debt. edly notes. has rolled out across the country. “The specif ic circumstances Not surprisingly, the com- More than 1,200 people have been identified by the committee lead mittee urged the provincial gov- trained. It’s gone beyond our orig- it to a recommendation which ernment to amend the Courts of inal project.” simply corresponds, in part, to a Justice Act to allow future com- Most recently the program has situation concretely and uni- mittees to have more than six expanded, and now it is being formly experienced by hundreds months to write its reports. At introduced to traditional leaders. of thousands of people in the present, the report must be filed One area of special interest is Quebec public sector,” said the within six months from the date restorative justice. “Restorative 145-page report. on which the committee members justice is an issue in Canada with The Johnson committee were appointed. respect to domestic violence Left to right: Rakeb Messele, Project Writer, Evelyn Neaman, Law Courts added that in spite of the slight The committee also recom- because of the power imbalance. Education Society, Susanne Dahlin, Victim Services B.C. increases it recommends, judges mended conducting an exhaus- In South Africa, it’s under develop- of the Court of Québec will nev- tive study that would examine ment. They are developing a policy Association and one of the presen- violence cases, the men involved ertheless still be among the best the remuneration received by on how to use these practices,” ters on the cross-Canada tour. also abused the children. In paid judges in the country, sur- judges across the country and Neaman said. The Joining Hands Against Ethiopia, 59 percent of women passing remuneration received include an analysis of their The B.C. model is also now Domestic Violence: Ethiopia have suffered sexual violence and by provincially-appointed judges workload. The committee also being implemented in Ethiopia, project was launched in 2006. It up to 80 percent of marriages from Alberta, B.C. and Ontario. suggested that the government where the penal code was revised involves conducting workshops result from abduction and rape. In The committee, which put in place “mechanisms” that in 2005 to outlaw domestic vio- throughout Ethiopia with police, Ethiopia, 80 percent of men and 78 ascribes to the notion of a “hier- would lead to improved lines of lence for the f irst time in the prosecutors and judges to educate percent of women believe that archical” system of judges, main- communication with the parties country’s history. Many of those them on domestic violence and the female infidelity and disobeying a tains that not all judges should be that would “replace the con- working in the justice system, revised penal code. husband are justif ications for afforded the “same salary,” frontation and contradiction including police, prosecutors, and The national tour included the domestic violence. regardless of their competencies, between collaboration and con- judges are still unaware that public screening of a documentary, The situation in Canada is the source of their nomination sultation.” domestic violence is a crime. It’s Time: African Women Join also serious. As many as half of (be it municipal, provincial or “We thought it would be “The real challenge lies in trans- Hands Against Domestic Violence, all women visiting hospital federal) and the financial situa- helpful for our successors to ben- forming entrenched cultural prac- which depicts the plight of women emergency rooms in this country tion of the institution that pays efit from some of those improve- tices and internalized attitudes and girls in South Africa and are there as a result of domestic their salaries. ments we suggested. But it’s the towards domestic violence. Only Ethiopia, and the efforts of African violence. The committee, though, also government’s call,” Johnson told when women achieve full partici- women to change the system. “Being safe in your own home laid bare “unnecessary irritants” The Lawyers Weekly. pation in society can our country The reality is stark. In South is a basic human right,” said it experienced in executing its reach its full potential,” said Africa, one out of every six Neaman. mandate. It castigated the provin- All quotes except those of Mahdere Paulos, executive director women is regularly beaten by their Unfortunately, it’s one not all cial government for belatedly Daniel Johnson were translated of the Ethiopian Women Lawyers partners. In 46 percent of domestic women have. submitting its position over the by the author.
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