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Page 6 January 30, 2017 • Law Times www.lawtimesnews.com COMMENT u EDITORIAL OBITER By Gabrielle Giroday Privacy reigns Law Times reports this week that an Ontario Superior Court judge determined a rule was breached when two Toronto lawyers ex- changed private records about a sexual assault complainant with no notice to a court, the woman or her counsel. As the story by Shannon Kari notes, Justice Wendy Matheson said it's the first case in Ontario to interpret the "mechanics" of the im- peachment exception in the Rules of Civil Procedure for the use of compelled documents from one case in another legal proceeding. "The plaintiff/complainant's documentary productions com- prised hundreds of pages of documents. They include extensive pri- vate information," said the ruling by Matheson. "They include medical records from four different health pro- viders. They include counselling records. The productions include medical test results and photographs. The productions also include academic records with grades." The ruling itself contains important implications for lawyers across Ontario. In her ruling, Matheson says it is "necessary that parties wishing to proceed under the impeachment exception seek directions from this Court regarding what steps are required in their particular circumstances." "The moving party argued strenuously that notice would defeat the possible impeachment in this case. I understand that the defend- ant would prefer the element of surprise," says the ruling. "But even in the criminal context, the element of surprise is not available to the defendant/accused when seeking access to this type Foreign investors urged to follow guidelines BY RICHARD CLEROUX I n February 2009, the federal Con- servative government of then Prime Minister Stephen Harper changed the old Investment Canada Act to crack down on foreign investments that Harp- er feared might be threatening our vital national security, including our military effectiveness, or hamper police work against organized criminals and other national security interests including damage our national infrastructure and maybe even reduce government purchas- ing power. The act had been set up in wartime many years ago to help control foreign investments into Canada. The Harper government wanted more power to con- duct a review of any foreign investment that could be injurious to Canada. After the change, foreign investments could still be allowed into Canada under the existing "Net Benefit to Canada" law, but other investments could be turned away by cabinet decision on the advice of the Canadian Security Intelligence Ser- vice, the Defence Intelligence Service and the Royal Canadian Mounted Police. Potentially damaging security find- ings were turned over to the Minister of Innovation, Science and Economic De- velopment. From there, the information would go to the Public Safety Minister for further examination. And they could end up before cab- inet and be rejected. Before changes in the act in 2009, the federal govern- ment would approve hun- dreds of new foreign invest- ments every year. Less than a dozen would be rejected on security grounds. But this all changed when the new act went into ef- fect under Harper. Foreign investors would have to file their information on a proposed invest- ment a full 45 days before they filed their application for acceptance. Otherwise, they could be rejected outright. The government wanted plenty of time to study the potential investment and discuss it fully with the potential foreign investor. But then Justin Trudeau came to power and everything changed once again. On Dec. 19, 2016, the new Trudeau government published a document en- titled "Guidelines on the National Secur- ity Review of Investments." The govern- ment wanted to know more about pro- spective foreign investments but was also willing to make it easier for the right sort of investments to be allowed in. More government intelli- gence services would also be taking part in reviews — in- cluding the RCMP, Canada Border Services, CSIS, the Department of Global Affairs and International Trade, the Canada Revenue Agency and provincial, regional and mu- nicipal forces. The 45-day advance filing is still in effect and the government is still watching for all sorts of "injurious" possi- bilities, but now, the government people and the various government ministers are more prepared to sit down and talk ahead of time under sworn secrecy with potential foreign investors. "There is clear evidence that foreign investment has direct benefits for Can- ada," says Joshua A. Krane, partner with Blake Cassels & Graydon LLP. That is why business lawyers working with potential investors and government in-house lawyers are so anxious to keep the Guidelines on the National Security Review of Investments working to every- one's benefit. It means still advising for- eign clients to file at least 45 days before the planned closing of their investment. The federal government also has to begin its national security review on a po- tential foreign investor within 45 days of notification. If it doesn't, the investor can close the business deal without fear the government will order divestiture later on. That's why both government people and the company lawyers keep stressing to potential investors that they should contact government security people at the earliest stage they can when they want to invest in Canada. Despite all this advice, there are still companies that make their business moves on invest- ments without first consulting the feder- al government, say lawyers. Krane says more guidelines are need- ed this coming year to facilitate more for- eign investment into Canada. "We've made a good start . . . but I would like to know more on the process [of ] how an investor gets to work with the government to alleviate government concerns," says Krane. LT uRichard Cleroux is a freelance re- porter and columnist on Parlia- ment Hill. His email address is richardcleroux34@gmail.com. of record." While the case centres on allegations of sexual assault — where concerns about privacy regarding complainants are particularly paramount — it has wider effects for anyone who handles sensitive in- formation. The proliferation of records in a digital age, and concerns about protection of information con- tained therein, will only intensify as technology quickens. LT ©2017 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . . . . .Alex Robinson Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . . . . .Catherine Giles Electronic Production Specialist . . . Derek Welford The Hill Richard Cleroux

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