Negligent investigation tort extended Fired employee can sue by lxb51761


Vol. 28, No. 10                                                                                                                                                                                                   July 4, 2008
                                                                                                                                                                                                                                                                                    McKELLAR STRUCTURED SETTLEMENTS INC.


SCC gives                                  PARALEGAL PROGRAM APPROVED BY LAW SOCIETY
                                                                                                                                                                                                                                                                                    WHEAT BOARD
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
   “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
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
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24 | July 4, 2008                                                                    THE LAWYERS WEEKLY

Main plaintiff was mistakenly fired and arrested
          Investigation                  insurers, she said, adding that her     different or even greater liability       sonnel. The private investigation         handed him over to York Regional
      Continued From Page 1              client strongly maintains that it was   cannot be imposed upon the private        company was hired by Canac in             Police on the spot. 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           [2008] O.J. No. 2497.

Special interest is restorative justice                                                                                    Court of Québec judges among
      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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