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Law Times • January 26, 2009 FOCUS PAGE 13 Beware new law of negligent investigations BY GLENN KAUTH Law Times private investigation fi rm's work. Aston Associates Investiga- tions Ltd. had been hired to probe alleged theft and drug ac- tivities at Canac Kitchens. Th e fi rm placed an undercover offi cer within the company, which led to the fi ring and criminal investi- gation by York Regional Police of 10 workers. Correia, a 62-year- old longtime em- ployee of Canac, was on the list of suspects. But there was one problem. Correia had done nothing. Th e real alleged culprit was another employee with an almost identical name who was 40 years younger. Somehow, the names of the two employees I had n 2002, Joao Correia found himself fi red and facing crimi- nal charges stemming from a speculative," they wrote. "Th ere is no evidence to support this suggestion; the Aston defen- dants provided no information about their relationship with the police or how it would be aff ected if a duty of care were recognized. Th ere is a good ar- gument that the potential dis- advantage from curbing the fl ow of information between the private security fi rm and the police would be substantially outweighed by the advantage of encouraging greater care." Th e judges added the issue was especially relevant since private fi rms have increasingly taken on the work of police as evi- denced by Aston's involvement in a drug investigation at Canac Kitch- been mixed up. As a result, Correia sued Canac, Aston, and York Regional Police along with several individu- als for claims including negligent investigation, malicious prosecu- tion, false arrest, and intentional infl iction of mental distress. A motions judge initially dismissed several aspects of the case, but last year the Ontario Court of Appeal reinstated many of the claims. Th ey included the negligent in- vestigation claim against Aston. For David Debenham, a lawyer with Lang Michener LLP in Ot- tawa, the case, along with the 2007 Supreme Court of Canada deci- sion in Hill v. Hamilton-Wentworth Region Police Services Board, are key for private investigators. "It was believed prior to these two cases that an investigator's only duty was to his client or employer — the employer in the case of a police of- fi cer and the client in the case of a private investigator," he says. "As long as they didn't do some inten- tional wrongdoing like invasion of privacy or assault, they were good to go and they owed no duty to the suspect. Other than that, there was no duty to carry on a careful investigation except to the extent that their employment contract required them to do that." In the Hill case, of course, the decision applied to police offi cers. Jason Hill, originally charged but later acquitted of a bank robbery, sued police for what he alleged were problems with their inves- tigation. But while the Supreme Court ultimately ruled in favour of the police, it set the stage for what Debenham calls the "new" law of negligent investigations. Th e case of Correia v. Canac Kitchens, then, extended the Supreme Court rul- ing. "Th at's what the second case says: . . . Don't kid yourself that that was restricted to police offi - cers," says Debenham. "It applies equally to private investigators in most circumstances." In applying the tort of negli- gent investigations in Correia, the judges rejected arguments that doing so would impose a chilling eff ect on the operations of private fi rms. "In our view, this view is too KAUFMAN_Privacy Law in the Private Sector (LT 1-3X4).indd 1 David Debenham ens. "It is diffi cult to imagine that 30 years ago, a private investigation fi rm would be conduct- ing an investigation into drug dealing, but that is what Aston was doing at Canac," they wrote, adding that such activities "operate largely un- regulated; certainly, they are not obviously governed by the many checks and balances that constrain police. Put simply, they can often exercise functionally equivalent powers without the same con- straints." Th e notion of negligent inves- tigations, however, is one that ob- viously concerns both police and private investigators, Debenham notes. "Th e idea that a police of- fi cer can be sued by somebody who gets charged or may go to jail, I think if you're in the public Martin's Annual Criminal Code 2009 Edition Still the number one choice of judges and criminal law practitioners in Canada. Respected for over 50 years! Fully annotated by two of Canada's most respected criminal law experts, Edward L. 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