ONTARIO LAW FIRM INVESTIGATIONS

Many turn to experienced law firms when an outside independent third-party investigation is required in the workplace or in other situations where misconduct  is being alleged. Law firms can be well placed to conduct investigations involving interviewing witnesses, collecting and reviewing documents, and analysing the totality of the evidence in order to come to factual conclusions and make legal recommendations. Most importantly, only through retaining a law firm can clients be guaranteed solicitor-client privilege will protect the confidentiality of the investigative results. 

Why Relevant, Reliable & Probative Evidence is the Bedrock of all Legal Cases

No legal case stands by itself. All cases are supported by a solid foundation of relevant, probative and reliable evidence. Rights, duties, obligations are irrelevant is there is no evidence to support claims to them. Quite often we see cases involving shocking breaches of legal, ethical or moral duties, but their is a complete absence of evidence to support the assignment of liability to anyone, even though there may be strong suspicions of who is responsible. 

You may "know" or at least "suspect" who is responsible for an act or omission, but if you can't prove it you won't be able to access any legal remedies. 

"Proof" is based on investigation, through witness statements, document and data gathering and analysis, and other fact finding like video, audio or physical evidence. You can't just throw random facts into a court or tribunal case, and hope a decision maker will make sense of them. "Facts" are based on relevant and reliable evidence. Statements from people with first hand knowledge of events. Business or government documents that are presumptively reliable. 

But in order to gather relevant, reliable and probative evidence, you also have to know the law, as not all "facts" are relevant to a legal case. The world is full of facts, but if they don't advance your case, or clarify the truth of a matter, you're wasting your time and money gathering them. 

We conduct independent objective fact finding aimed solely at the objective truth, and we also conduct investigations targeting a particular result. Because we are officers of the court, you can count on our objectivity. 

What We Do & Who We Can Help in Investigations

Our firm can conduct recorded and transcribed interviews, including interviews under oath that can lead to severe penalties for false statements. We can also deal with the most complicated of documentary investigations, including using information technology to analyse documents, obtaining civil court orders to obtain documents and assist witnesses with the swearing of written sworn affidavit statements. We can then provide you with our opinion on the weight of the evidence, and whether any codes of conduct or laws appear to have been broken, so that you or your organization can take informed defensible action that is not based on rumour and innuendo, but rather cold hard facts and indisputable legal standards. 

We also assist individual employees and business partners or shareholders in defending against or advancing workplace or business investigations. Investigative bias taint is a scourge of all supposedly fair fact finding exercises. We bring objectivity (and potential legitimacy) to any process, even if there is already an internal investigation underway. 

Why Lawyers are Best Placed to Obtain Court Compulsion of Documents &Preservation of Assets

We act on Anton Piller and Mareava Injunction orders before the courts. An Anton Piller order is a civil search warrant, that may enable you to gather all sorts of evidence in possession of another party. But because the search warrant is executed by a private party, and not the police, the court may impose all sorts of procedural safeguard on their issuance. A Mareva Injunction can prevent the flight of property from a jurisdiction, including the freezing of bank accounts and investments. While no person can be forced to talk outside of a court trial process, their books and records can tell far more of a tale than they might be willing to, and documents lie far less frequently than do people. With the advent of large scale data searches and analysis, a law firm led investigation may be able to obtain all manner of books and records from a party, and conduct a detailed analysis getting at the heart of a matter. 

We will sometimes collaborate with forensic computer security experts, accountants and engineers in our investigations, but ensure that we are the ones retaining external experts so that the expertise can be cloaked with solicitor-client privilege just like our other legal services. 

The Strong Justification for External Law Firm Investigation

External investigations can be especially justifiable where there is a risk of a perception of internal bias, multiple complaints or respondents are involved, mental health issues could be at play, or the courts or tribunals might later become involved. We will conduct fact finding, provide a detailed written report on our findings based on the evidence (rather than rumour and innuendo), and make recommendations on possible outcomes and next steps. 

While an outside investigation may appear more costly than trying to handle a situation internally, you need to weigh the time that can be eaten up in conducting an investigation with your own human resources or executive employees that takes them away from other duties, the potential for later accusations of bias against internal investigators regardless of their actions just because they come from the internal organization, the greater credibility outside investigators might have, and ultimate significant cost savings if an outside investigation prevents any party proceeding to court in an attempt to challenge an investigation or its outcome. 

For matters potentially involving criminal or quasi-criminal wrongdoing, you should obtain legal advice on whether a private investigative process (either internal or external) should first be followed prior to turning the evidence over to the police or regulatory enforcement authorities. While you don't want a private process potentially tainting a government investigation, you also don't want the government to either lack the resources or interest to pursue a matter. Our decades of work with government law enforcement agencies has taught us how to deal with the delicate relationship issues that arise when presenting privately gathered evidence for government use. 

How External Law Firm Investigation Confidentially Protects Results through Solicitor-Client Privilege

The greatest advantage to using a licensed, practicing, insured external law firm for investigations is that solicitor-client privilege can be created between the investigators and those who retain them, whereby all of the investigation work product can be protected from public disclosure or compelled disclosure during subsequent litigation, since investigation can be considered to be legal services. This permits employers, employees, governments, and organizations to freely enquire about matters in an expeditious manner, so as to be able to take effective internal action or improve processes, without fear that external subsequent litigation will be able to gain access to the investigative process.

Certainly subsequent litigation may happen, but it will be subject to its own rules of discovery. The client commissioning the investigative report could choose to voluntarily release all or part of the report, but it will be very difficult to compel such a release through a demand or court process, and such reports are usually successfully defended from court demands. If anyone other than lawyers are used in an investigation, privilege will not apply unless those investigators are employed by and working under the direction of a law firm. Investigations conducted by lawyers internal to an organization may or may not be covered by privilege, depending on how court perceive their role. Retaining an external law firm offers the best guarantees of legal confidentiality of investigations.

Samples of Our Workplace Investigations Work

  • Hostile work environment
  • Bullying and psychological harassment
  • Sexual harassment
  • Racial harassment & discrimination
  • Workplace violence
  • Failure to Accommodate
  • Breach of trust or confidentiality
  • conflict of interest
  • Workplace health and safety
  • Human rights violations
  • Inappropriate employee behaviour
  • Policy or legal breaches
  • Workplace assessments on culture, practices and behaviour to identify causes of conflict
  • Advising in-house investigators on the law
  • Interviewing of subjects, complainants and third-party witnesses
  • Documentary review and analysis
  • Video, audio and electronic data review and analysis

Samples of Our Business Investigations Work

  • Shareholder and partner disputes
  • Employee & contractor dishonesty
  • Business property loss
  • Intellectual property theft
  • Fraud and debt recovery - investments, corporate, insurance, and banking
  • Insurance

Samples of Our Estate and Family Investigations Work

  • Trust and estate breach of fiduciary duty claims
  • Location of hidden marital assets or return of children

How We Combine Litigation with Investigations to Enhance and Follow Up on Results

In addition to our role as legal counsel who comprehensively gather, analyse and report on facts through our own means, we also conduct court-assisted investigations, as well as litigate the results of our investigative findings. 

  • Anton Piller Orders - Superior Courts may issue civil search warrants for private parties to enter premises (including computer data systems) and obtain information relevant to legal issues, without criminal search warrants being involved. The obtaining of such orders can be both complex, but may be well worth it if they reveal the proof of wrongdoing or location of assets that a party has been pursuing. 
  • Mareava & Other Injunctions - Superior Courts may issue civil orders freezing the moving or disposal of assets pending the outcome of other events, like fraud or debt recovery litigation. An injunction can prevent a party from moving an aircraft, ship, motor vehicle, cash, investments or documents out of where they are currently location, and could also prevent their destruction or alteration.
  • Fraud & Debt Recovery Litigation - Superior Court - including Small Claims Court - may order monetary damages or the return of property to a party who can prove a loss caused by another party, such as in investment, corporate, banking, insurance and relationship situations. 
  • Corporate-Commerical Litigation - oppression and shareholder actions against corporate entities, their officers, directors, managers, employees and other shareholders due to oppressive or dishonest conduct
  • Criminal Prosecutions - although peace officers are the only ones who can use special criminal investigative powers (some requiring prior court authorization), they are not the only ones who can conduct criminal investigations. We are able to gather evidence of criminal wrongdoing, offer our opinion on whether it meets criminal standards of proof (reasonable & probable grounds of an offence or proof beyond a reasonable doubt), and present it in a Crown prosecution brief format to either the police or the Crown for further investigation and action, or for pursuit as a private prosecution (which are permissible under Canadian law subject to a court accepting a case). 
  • Insurance Litigation - examining parties under oath, defending parties when claims based on fraud and dishonesty, and pursuing subrogation claims where insurance losses suffered due to fraud. 
  • Acting for Employees, Officers & Directors - defence of unwarranted allegations of improper conduct, and pursuit of actions for improper conduct on the part of others in and organization. 

Our Broad Investigations Experience

The firm’s Managing Lawyer Gordon Scott Campbell has directed investigations at the Military Police Complaints Commission, served as legal counsel to the Royal Canadian Mounted Police on labour, employment, professional standards, performance and fitness matters, worked as a Federal Crown Prosecutor throughout Canada, is author of three books on the law of investigations, and has trained law enforcement agencies throughout Canada. He has been involved in the successful gathering or presenting of evidence in hundreds of civil, regulatory and criminal investigations. He understands how to focus investigative efforts for maximum results. He is assisted by the other lawyers and staff of the firm, all of whom can conduct investigations in both French and English. 

 

Contact us to learn how we could assist you in developing and executing an investigation plan, or on advising you how you can best conduct your own investigation.