Area of Law: Services for Lawyers and Paralegals
Answer # 939
Investigation servicesRegion: Ontario Answer # 939
Periodically, lawyers require investigative services. For litigation purposes, for example, lawyers often gather surveillance evidence for insurers who believe an insured is fraudulently making a claim. Lawyers also use investigators to find witnesses, take witness statements, locate assets and conduct investigations into alleged corporate or personal impropriety.
For corporate due diligence purposes, businesses may want information on corporate competitors, people they are considering hiring for management or sensitive positions, forensic fraud investigations, intellectual trademark infringement investigations and for assistance on other corporate related issues.
Who may conduct an investigation?
Generally, investigations for hire may only be conducted by individuals and agencies licensed under Ontario’s Private Security and Investigative Services Act. In Ontario, a private investigation license is required to:
- obtain and provide information on the personal character or actions of a person;
- obtain and provide information on the business character or kind of business or occupation of a person;
- search for offenders against the law;
- search for missing persons; and
- search for missing property.
A private investigation license is not required to:
- seek or obtain information about the activities, character or repute of a business or organization;
- seek or obtain information about crimes and offences generally or
- seek or obtain information pertaining to the causes of fires, accidents and incidents.
A private investigator in Ontario is defined as “a person who performs work, for remuneration, that consists primarily of conducting investigations in order to provide information.” Therefore, if the above functions are conducted for free, or pro bono, a license is not required. It is also worth noting that commercial trade in information about persons and businesses is regulated by Ontario’s Consumer Reporting Act.
Who is exempt from licensing?
In Ontario, lawyers, police officers, members of the Canadian Corps of Commissionaires, insurance company employees, insurance adjusters, bailiffs, collectors of accounts, employees of financial credit rating companies, and employees of the federal, provincial and/or municipal governments acting within the scope of their duties are exempted from licensing. In addition to this list, Ontario’s registrar does not enforce licensing upon certain occupational groups such as forensic chartered accountants and certified fraud examiners as they are governed by their own licensing bodies.
A second form of exemption is private investigators that begin an investigation in their home province and continue that investigation in another province. In most cases, the impugned province permits the private investigator to investigate in their province without first obtaining a license. Québec, Saskatchewan and British Columbia are the exceptions to this rule. In Québec no such exemption exists. In British Columbia and Saskatchewan, permission from the provincial registrar is required before the investigation can be continued.
A final form of exemption is investigators who are permanently employed by one employer in a business other than that of providing private investigators and whose work is confined to the affairs of that employer. Bank fraud investigators are an example.
Why should a lawyer and not a client retain the investigator?
It is wise for anyone requiring the services of a private investigator, who foresees that the investigation may result in litigation, to first retain a lawyer. The reason for this is the legal concept of litigation privilege. When a lawyer is retained and the lawyer in turn retains the private investigator, all information provided by the private investigator is privileged if not used as evidence. In litigation, private investigators cannot claim a qualified privilege between themselves and their clients.
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