Fraud Against The Elderly Via Continuing Power Of Attorney For Property When people get older and their mental capacity dwindles, it can be a great relief to have someone else look after one’s financial affairs. There often comes a time in our lives when it becomes difficult to keep track of bills and payments and to keep the necessary overview required to make financial decisions. A trusted relative or friend may be willing and able to help when such tasks become more and more cumbersome. A continuing power of attorney for property is an excellent tool that permits the ‘grantor’ to grant a power of attorney (POA in the following) to a person of their choice who will remain in charge of the grantor’s property even in the event the grantor becomes mentally incapable. That is why it is called a continuing power of attorney. Scope With great power comes great responsibility and on the flip side great risk of abuse. The more encompassing the POA, the more vulnerable the elderly. S. 7(2) of the Substitute Decision Act (SDA) provides that a grantor may authorize the attorney to do anything in respect of property that the grantor, if capable, could do, except make a will. The grantor may also decide to limit the scope of authority to mitigate some of the risks that come with granting a POA. For example, the attorney may only be entitled to deal with certain assets, or the commencement of the power may be postponed to a specific time or event, i.e. when the grantor becomes mentally incapable. Such limitations would need to be clearly written into the POA. The POA loses its effect of entitling the attorney to act on the grantor’s behalf in property matters once the grantor dies. Legal Requirements According to s. 8 of the SDA, the grantor is capable of giving a continuing POA if the grantor knows what kind of property the grantor has and its approximate value;is aware of obligations owed to the grantor’s dependants;knows that the attorney will be able to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;knows that the attorney must account for the attorney’s dealings with the grantor’s property;knows that the grantor may, if capable, revoke the continuing power of attorney;appreciates that unless the attorney manages the property prudently, its value may decline; andappreciates the possibility that the attorney could misuse the authority given. Fraudulent Schemes A relative, an alleged friend, or even a stranger may fraud the elderly victim by having them sign a POA by misrepresenting its content or scope to them. Such a POA does not meet the above-mentioned requirements and is void. Yet, third parties may rely on the signed POA nevertheless and conduct business with the fraudster. While such transactions are void and legally the sold asset is recoverable, there might be insurmountable practical hurdles to recovery. The asset may simply have disappeared by the time the fraud is discovered. If the asset is a piece of land, there are certain statutory protections against a title transfer by a fraudster. However, if a good faith purchaser who bought the land from the fraudster resells the land and title is registered for the benefit of the next purchaser, the title of the original owner is extinguished. There even remains a risk of abuse after the grantor has died because third parties with whom the attorney conducts business purportedly on behalf of the deceased grantor may not know of the grantor’s death. They may again reasonably rely on the POA presented to them by the attorney. This risk is at this stage of course a risk for the estate of the deceased grantor. These extreme examples are criminal matters, as they are in clear violation of s. 331 of the Criminal Code ‘Theft by person holding power of attorney’. Another scheme can be conducted with a perfectly valid POA. The attorney may decide not to act solely in the interest of the grantor, as he or she is obliged to do under the SDA. For example, the attorney has the power to make gifts and loans to the grantor’s friends. This is deemed to be in the interest of the grantor by the SDA. A limit imposed on such gifts is the unduly depletion of the grantor’s property to a degree where it does not suffice to satisfy the support and care of the grantor. Obviously, where this line must be drawn is quite debatable and the attorney has significant leeway under the law. A further restriction to the attorney’s power lies in the fact that, if challenged, the attorney must prove that he or she had reason to believe, based on the intentions of the grantor expressed before becoming incapable, that the grantor would have made the gift as well. The reality is those elderly people who do not have the mental capacity to look after their own assets are also not in the position to challenge the abuse of a power of attorney. They are helpless and rely on better friends or kinder relatives to look after their interests. If you believe you discovered POA fraud performed on a grantor, do not hesitate to reach out to DSF lawyer Tracey Rynard at Tracey.Rynard@devrylaw.ca or 249-888-6647 for assistance with this litigation matter. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Litigation, Wills and EstatesMay 7, 2021May 7, 2021
Challenging a Termination Clause in Small Claims Court A 2019 decision of the Ottawa Small Claims Court serves as a caution for employers and may encourage employees to fight wrongful dismissals. When an employee is terminated without cause, (s)he may be entitled to severance pay in lieu of notice of termination. The amount will depend on the length of time the employee has worked for the employer. If the sum of severance pay in dispute is equal to or less than $35,000, the dispute can be brought in Small Claims Courts. Small Claims Court proceedings are somewhat simpler and can lead to a quicker resolution of the matter. The parties in a Small Claims Court matter have no right to pre-trial examinations for discovery and hence proceed to trial relatively quickly (unless of course there is a raging pandemic). A further benefit of Small Claims Court actions is that the parties may represent themselves if they so wish, which will reduce litigation costs. Caution is advised, however, as the law around termination clauses is quite complex and can be confusing. Given this complexity, many termination clauses are drafted in a way that renders them unenforceable. That was the case in the above-mentioned decision. If an employer wishes to limit its exposure to wrongful dismissal damages, it is a good idea to consult an employment lawyer and to have the employment contract reviewed. An employment contract may eliminate a common law wrongful dismissal claim if (1) the agreement complies with the minimum standards of the Employment Standards Act (ESA) and (2) is clear and unambiguous and (3) ideally states that the severance pay offered is intended to extinguish all common law remedies. The Termination Clause In this case, the termination clause read as follows: Your employment may be terminated for cause at any time without notice or payment in lieu thereof. Your employment may be terminated for any other reason by the company upon delivery of one week’s notice per year of Espial service or payment in lieu thereof, or such other amount as is required under the Employment Standards Act, whichever is greater. The intention was to limit the employer’s right to claim severance pay under the common law and to grant him or her the entitlements under the ESA. This wording failed to have this effect, however. First, the clause did not provide for the continuation of benefits as is required under the ESA. This is a violation of the ESA, which sets out minimum entitlements for employees that cannot be contracted out of. A violation of the ESA renders the contract void. The second problem with the termination clause was its ambiguity. The clause could be interpreted to lack reference to severance pay, another entitlement under the ESA. If a termination clause is ambiguous, meaning that the employee upon signing the contract cannot know what his or her entitlement will be upon termination, the clause is void. Thirdly, an argument was advanced by the employee that the contract did not make it clear that the employer intended to oust the employee’s common law entitlements upon termination. The court found that there is no obligation to include a “warning sign” in the termination clause, but that the legal standard is whether the clause is sufficiently clear. Out of an abundance of caution, it may be advisable to explicitly state in the employment contract that the common law remedies are eliminated. The claim succeeded and $25,000 was awarded as damages. The plaintiff had been employed slightly less than three years. Conclusion Given the complexity of the law regarding termination clauses, it is advisable for employers to ask a lawyer to review their employment contracts regularly to ensure their enforceability. The law is evolving and even when a clause was enforceable at some point in time, new case law may have rendered it unenforceable. For employees who believe they have been wrongfully dismissed, the Small Claims Court may provide a good forum to obtain relatively quick relief. While they can represent themselves in front of Small Claims Courts, a lawyer’s advice can be indispensable in determining the prospects and the risk involved in the litigation. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawMay 4, 2021June 24, 2024
How To Prepare For Changes In A Shareholder’s Life Circumstances: Buy-Out Clauses A shareholders’ agreement often includes the framework within which the business relationship will be governed. It can also provide mechanisms to address the dissolution of that relationship. This entry complements our previous blog on provisions by which shareholders or the corporation, can force a share transfer. Disability, Death, or Insolvency of a Shareholder An individual shareholder’s demise, insolvency or general inability to carry out his or her duties can be challenging for the remaining business partners. A shareholders’ agreement can provide that the remaining shareholders, or the corporation itself, are obliged to purchase the shares previously held by the affected shareholder or by his or her estate, and can set out the payment terms for the transaction. It can also include life insurance provisions, pursuant to which the insurance proceeds can be applied to payment of the purchase price. Valuation Mechanism Shareholders’ agreements will typically provide a mechanism by which to determine the fair market value of the shares at a given point in time. Provisions of this type can help avoid disputes as to value and as such are particularly helpful should the business relationship become less than amicable. Transfer Restrictions The shareholders’ agreement can restrict individuals or legal persons to whom or to which a shareholder may transfer his, her, or its shares. Provisions of this nature help ensure that the remaining shareholders have a means by which to control those with whom or with which they are business partners. There are a variety of provisions that can be used in shareholder agreements to govern shareholder buyouts or provide for the sale of a company in the event of unforeseen circumstances that end the relationship between shareholders. To further discuss these provisions or other aspects of shareholder agreements, please contact Elisabeth Colson, senior corporate lawyer at Devry Smith Frank LLP. You can reach her directly at (416) 446-5048 or by email at lisabeth.colson@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Corporate LawApril 26, 2021July 5, 2023
New Process for Administering Small Estates in Ontario Following an announcement by the provincial government this past February, on April 1, 2021 Ontario’s new procedure to administer small estates came into effect. The new procedures, which are designed to ease the administration process on “Small Estates” are welcomed and should facilitate a cost effective and timely probate on modest estates. Under The Smarter and Stronger Justice Act,[1] amendments were made to The Estates Act[2], one of which was the introduction of the “Small Estate.” A Small Estate is an estate with a value of $150,000 or less. The new and simpler procedures for Small Estate administration include the following: completing the new and simpler application forms;[3]in some instances, removing the requirement of the applicant to provide certain supporting documents (such as an affidavit of service for the notice of application); andin most circumstances, removing the requirement to post a bond.[4] Estate administration tax is still payable on Small Estates. As with all estates, the first $50,000 is exempt from estate administration tax, and the remainder is taxed at approximately 1.5% of the value of the estate as of the date of death. Once probate has been issued, estate trustees are required to file the Estate Information Return with the Ministry of Finance within 180 days of the issuance of probate. Regardless of the amount of money held in an account, banks and other financial institutions often cannot take instructions from an estate trustee unless probate has been granted. By easing the administration requirements on Small Estates, the hope is that less people will leave these estates unsettled due to the burdens and costs associated with probate. We understand that dealing with a loved one’s estate can be overwhelming. If you have questions regarding Ontario’s new procedures for the administration of Small Estates, or any questions regarding wills and estates in general please contact Esther Abecassis, wills and estates lawyer at Devry Smith Frank LLP at esther.abecassis@devrylaw.ca or 416-446-3310. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Smarter and Stronger Justice Act, 2020, S.O. 2020, c. 11 – Bill 161. [2] Estates Act, R.S.O. 1990, c. E.21. [3] the following new forms have been introduced pursuant to the Rules of Civil Procedure (R.R.O. 1990, Reg. 194: Rules of Civil Procedure under Courts of Justice Act, R.S.O. 1990, c. C.43) Form 74.1A – Application for a Small Estate Certificate (the “Application”); Form 74.1B – Request to File an Application for a Small Estate Certificate or an Amended Estate Certificate; Form 74.1C – Small Estate Certificate (the “Certificate”); Form 74.1D – Registrar’s Notice to Applicant in an Application for a Small Estate Certificate or Amended Small Estate Certificate; Form 74.1E – Application to Amend Small Estate Certificate; and Form 74.1F – Amended Small Estate Certificate (the “Amended Certificate”) [4] New section 36(3) of the Estates Act provides that “subject to section 6, a bond shall not be required in respect of a small estate, unless, (a) a beneficiary of the estate is a minor; or (b) a beneficiary of the estate is incapable within the meaning of section 6 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether or not the person has a guardian.” By Fauzan SiddiquiBlog, Wills and EstatesApril 16, 2021July 28, 2021
Witness Statements- Best Practices Obtaining Statements Witness statements should be obtained as soon as possible after a loss. The likelihood of locating witnesses is highest immediately after an incident and diminishes over time. It will also be more likely that a precise and detailed statement can be obtained while the witnesses’ recollections are fresh. Do not wait until preparing for trial to obtain witness statements. Statements should be obtained in sufficient time to be used at mediation or pre-trial. Get them as quickly as possible. Obtaining liability statements after notice of a pending action may help discourage further litigation. The information contained in the statements can also be helpful on examinations for discovery. Statements should generally be obtained from all liability witnesses. Do not rely on the statements included in the police notes, as these are frequently incomplete or unclear and often inaccurate. It is important to iron out any inconsistencies at the outset. Statements should also be obtained from any potential damages witnesses, such as neighbours, co-workers or friends. The identity of these potential witnesses can be obtained at examinations for discovery. Obtaining statements from these witnesses should be undertaken as soon as possible, and in any event well in advance of mediation or pre-trial. Reviewing Statements Where statements are obtained by an independent adjuster, they should be reviewed carefully to ensure that they are complete and unambiguous. Review the statements carefully for the following: Does the statement pin down the liability issue adequately?Is additional information required?Is there scope to challenge the witness on cross-examination that should be addressed at the time of obtaining the statement? If any additions or revisions to the statement(s) are required, they should be undertaken promptly and a revised statement should be prepared and forwarded to the witness for review. The witness should be asked to confirm the revised statement’s accuracy. If possible, the revised statement should be signed by the witness. The statement can also serve as an aide-memoire. Use of Statements Rule 31.06 (2) of the Rules of Civil Procedure requires disclosure of the names and addresses of potential witnesses. A summary of the evidence of the witness must also be given. The statement itself is privileged and except in rare circumstances, a copy of the witness statement should not be produced to opposing counsel. It is essential that the statement(s) be listed in Schedule B of the Affidavit of Documents. The statement can be referenced at mediation or pre-trial, where it will retain its privileged character. The statement can be used to assist in preparing the witness for trial. It is important, however, to ensure that the privilege attaching to the statement not be inadvertently waived. For example, if the witness states that they reviewed the statement to refresh their memory for trial, opposing counsel may be entitled to compel production of the statement. Accordingly, counsel should use the information in the statement to prepare the witness, without necessarily putting a copy of the statement before the witness. Should the opposing counsel call the witness at trial, the statement can be used to cross-examine the witness. If you have further questions about witness statements or any other insurance defence matter, do not hesitate to contact George O. Frank at 416-446-5858 or george.frank@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Insurance DefenceApril 14, 2021April 14, 2021
Play the hand you’re dealt! Do you think it matters? That is, do you think it matters how many cases a mediator has settled? Do you think we can measure the success of a mediator by keeping track of winning and losing records? Or for that matter, do you think a mediation can be successful even if it doesn’t settle? I recently participated in an on-line discussion about the challenges facing mediators in this ‘settle by zoom’ era. Apparently (and I have not experienced it yet) there is a certain part of the population of participants, parties and counsel who do not wish to turn on their video camera when participating in the mediation. There may be many reasons for this, likely ranging from having a bad hair day to wanting privacy. Sometimes parties are just being difficult, obstreperous or simply uncooperative. The question is, does it matter? In my view, likely not. We have to remember that while the mediator controls the process, the conflict is owned by the parties. As does the solution. If one of the tools of the mediator’s tool box is removed, like eye to eye contact and the ability to “read” the other person and react accordingly, a skilled mediator will simply look upon it as just another challenge in a process already filled with barriers. No one wants to talk to a blank screen with only a name showing. However, the true measure of the mediator is the ability to remain agile throughout the process. The joy (if that is not too over the top) for the mediator comes with the myriad of never repetitive challenges and opportunities that the mediation process brings to the participants. Is settling important? No self-respecting mediator would tell you otherwise. After all, mediation is one of several forms of “dispute resolution”. So settling must be important to the mediator or the clients will not be well served. But should the measure of a mediator be based on the percentages of cases settled? Not in my view. After all, there may be other, less tangible benefits, but if the mediator was fair, flexible, committed and tenacious, the mediator will have been successful, settlement achieved or not. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, MediationApril 6, 2021April 6, 2021
COVID-19 Civil Jury Trials – Personal Injury The civil jury trials are currently on hold due to Covid-19. The plaintiff anxious to get a day in the court can only move to strike a jury notice in order to have the trial by the judge alone, thereby bypassing the Covid-19 caused civil jury trials vacuum. In the recent case of Louis v Poitras, 2021 ONCA 49 [Louis], a unanimous panel of the Ontario Court of Appeal affirmed that the Covid-19 trial delay is a sufficient and laudable reason for striking the jury notice and allowing the plaintiff to proceed to a Covid-19 non-jury trial. Background The plaintiff in Louis was involved in a motor vehicle accident in the City of Ottawa. She sued an underinsured motorist involved in the accident as well as her own insurer for denied benefits, income replacement and punitive damage. Both defendants issued jury notices and the trials were eventually merged. The plaintiff then brought forth a motion to strike the jury notice, because, due to COVID-19 and the suspension of jury trials, requiring the trial to proceed by jury would result in significant delays. The plaintiff’s motion was granted. Divisional Court In unanimous disagreement, the Divisional Court pointed out a “fundamental” right to have a civil trial proceed before a jury. The court also followed Cowles v Balac, [2006] O.J. No. 4177 [Cowles] in which the Ontario Court of Appeal held that “a party moving to strike a jury bears the onus of showing that there are legal or factual issues to be resolved…which merit the discharge of a jury” and that the court has to determine “whether justice to the parties will be better served by proceeding by trying a case with and without a jury” (Cowles at paras 37-38 cited in Louis – Div Ct at paras 8-9). The court found that while the COVID-19 pandemic had certainly added to the delays that a case may be subjected to if it is to be tried by a jury, simply claiming that one’s trial will be delayed is not enough to strike a jury notice and that in striking the jury notice the motion judge had acted arbitrarily. The successful appellant (the defendant) was awarded a shocking $45,000 in costs. Court of Appeal The Court of Appeal unanimously found that the motion judge had properly considered the specific situation with COVID-19-related delays to jury trials in his region. He had considered Higashi v Chiarot, 2020 ONSC 5523 [Higashi], which was another decision pertaining to a motion to strike a jury notice, released just eight days earlier. In Higashi, the court struck a jury notice after taking into account factors such as (at para 42): • It [was] not known […] when a civil jury trial might be heard in Ottawa. • It seems more probable that civil jury trials will be delayed for quite some time, considering the delays with criminal jury trials to date, and considering the resulting backlogs. • The state of uncertainty resulting from COVID-19, for example, whether it will get better, whether it will get worse, whether there will be [another] wave, how that will impact us here in Canada, more specifically in Ottawa, how that will impact the civil justice system, how that will impact the availability of a civil trial is very much unknown. This state of not knowing favours a trial by judge alone, at this point in time. • Balancing the risks and the rights of the parties, as well, seems to favour striking the jury notice, considering the existing state of uncertainty highlighted above. • As indicated by the Supreme Court of Canada in Hryniak, a fair trial requires a process that is proportionate, timely and affordable, and this high level of uncertainty about when a jury trial might proceed in the future would make the probability of achieving these goals much more unlikely. The Court of Appeal found that the motion judge’s reliance on the information from a concurrent judicial decision would never be an arbitrary exercise of discretion (at para 31). Furthermore, it found that the motion judge appropriately turned his mind to the local conditions and made an unassailable finding that it was unknown when or how a jury trial might be heard in the subject matter (at para 33). This alone was sufficient for striking the jury notice. As a result, the Divisional Court’s ruling was overturned and the motion order reinstated. Conclusion The Court of Appeal’s decision affirms that the current Covid-19 civil jury trials delay and an ongoing and local COVID-19 uncertainty and impact on the administration of justice may be sufficient reasons alone for striking the jury notice and ordering the trial by the judge alone. If you have any further questions regarding Covid-19 motions to strike a jury notice or personal injury lawsuits in general, contact Dejan Ristic, a lawyer at Devry Smith Frank LLP at 416-446-5812, or at dejan.ristic@devrylaw.ca. Home and hospital visits, and video conferencing are available as necessary. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Personal InjuryMarch 19, 2021March 19, 2021
Learn to surf! Late in 2019, when it became apparent that the Covid-19 restrictions would remain in place, I decided that beginning a meditation/mindfulness practice might come in handy. After all, this was the time where inner peace could only be a benefit. The teacher on the app began with the saying unattributed (but I found it), “You can’t stop the waves, but you can learn to surf” – Jon Kabat-Zinn. As intended, it got me thinking. So the practice of meditation can bring something of use to mediation. That should be no surprise because even in the basic mediation courses I took in 1995, the emotional state of the participating parties was something that needed to be considered. Calming parties, increasing their comfort, reassuring them, asking them to be mindful (even if not practicing mindfulness) encourages resolution. Getting the parties to understand that trying to swim against the current (or waves) is difficult and often counterproductive. Exhausting too! If we as mediators can teach the parties to take control for themselves and manage their thoughts and the possible outcomes, essentially teaching them to surf, we are more likely than not to achieve a resolution. Enough of that analogy. I am reminded of the mediator at a continuing education programme who thought that we ought to consider burning incense in the break out rooms in order to encourage calm. Well, you won’t find me doing that in any mediation I hold, and that practice is more or less irrelevant in the Zoom environment, but it does raise an interesting issue. How to encourage the parties to be mindful, in the moment and focused during the process is a critical part of the mediation. Limiting distractions (an ever growing problem when using Zoom), maintaining focus and banishing outside thoughts is hard to achieve in the midst of a mediation, particularly with home or office Zoom interference. It is even difficult when practicing meditation. Does this sound too “touchy-feely” for a legal environment? Is it possible counsel will reject the notion that they must learn to surf? Maybe, but in the meantime, mediators already bring these concepts to mediation. You may not even know they are doing it. The better ones are, I suspect, better at it. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, MediationMarch 16, 2021March 16, 2021
COVID-19 and Collecting Personal Information The COVID-19 pandemic changed the way people do business. For many businesses, government regulations currently require operators to record the name and contact information of every person who enters the establishment and to maintain these records for at least one month. The purpose of this is to assist with contact tracing should a COVID-19 outbreak occur at an establishment. For other businesses, collecting personal information is a by-product of increasingly doing business online. Business owners must be aware of the implications when collecting this sort of private information and the laws that govern its collection. In particular, the federal Personal Information Protection and Electronic Documents Act SC 2000, c5 (PIPEDA), sets the ground rules for handling personal information in the course of commercial activities. This act applies whether businesses are collecting personal information in person or online. The following are best practices that businesses should adopt in order to be compliant with PIPEDA and other applicable privacy laws: Understand and identify the purpose for collecting private information. Do not collect more information than is necessary.Adopt privacy policies and procedures that set out the reason for collecting information, the length of time the information will be stored and its destruction procedure. Do not collect any information contrary to these procedures.Appoint someone to be responsible for privacy issues.Make information about your privacy policies and procedures available to customers.Inform customers of the purpose for collecting this information and obtain consent.Keep the information only for as long as is necessary and then destroy it using proper procedures.Use proper safeguards when storing the information. Do not leave the information in plain sight and keep it safe.Develop a simple and easily accessible complaint procedure. If a customer contacts you about a privacy concern, the customer should be informed about avenues of recourse. If you have further questions regarding collecting personal information during the era of COVID-19 or regarding your obligations under Canada’s privacy laws in general, or if you require assistance in developing effective privacy policies and procedures, please contact Esther Abecassis, lawyer at Devry Smith Frank LLP at esther.abecassis@devrylaw.ca or 416-446-3310. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Corporate Law, COVID-19March 15, 2021March 15, 2021
The First Steps After Being Criminally Charged During The COVID-19 Pandemic If you have been arrested by the police and are now required to navigate the criminal justice system, it is useful to know in advance what to expect, particularly with an eye to the latest changes to criminal court proceedings amidst the pandemic. A number of things can happen after being arrested and charged. If the allegations are not particularly serious, and the accused does not have a criminal record, the police may release the accused on a “promise to appear” or an “undertaking”. This means that the release is conditional on the accused’s promise that he or she will attend court. An undertaking may also contain various other conditions including no contact with any complainant or a condition that the accused stay within the jurisdiction. Bail Hearing If the alleged offence is more serious, or there are safety or other concerns, the police may not be willing to release the accused. Instead, the accused will be kept in custody until they are brought before a court within 24 hours for a bail hearing. Due to the pandemic, the accused are no longer brought to the physical court but are typically held in custody at the police station or a provincial detention center. They attend court virtually – via either phone or video conference. At court, the Crown Attorney or prosecutor will decide whether they are agreeable to a release of the accused on a consent basis and the terms of that release. If the Crown Attorney is not agreeable to a consent release of the accused, then a Judge or Justice of the Peace will conduct a “show-cause” or bail hearing where the Justice will determine whether the accused will be released and the form of the release, or whether the accused will remain in custody while the trial of the charges is pending. In determining whether to release an accused, the Justice is to impose the least restrictive form of release possible. When making their decision, the Justice is to consider three grounds for detention, which are outlined in the Criminal Code of Canada. The first or primary ground is whether the detention of the accused is necessary to ensure he or she attends court. The secondary ground is whether the detention of the accused is necessary for the protection or safety of the public. The third or tertiary ground is whether the detention of the accused is necessary to maintain confidence in the administration of justice. This final ground typically arises with very serious charges and where the Crown has a strong case. If an accused is released, they may be released with or without a surety. A surety is a person, often a friend or family member of the accused, who will have to promise to the court that they will supervise the accused to ensure he or she will comply with the bail conditions. The promise to supervise the accused often comes with a no deposit pledge of money that could be lost should the surety fail to properly supervise the accused. Prior to the bail hearing, the accused’s counsel and the Crown Attorney are encouraged to discuss the issues that the Justice presiding over the bail hearing will have to decide upon. This includes discussing the form of release and whether a surety is suitable or even required, as well as any proposed conditions of the release. Bail courts in most Ontario courthouses were very busy before the pandemic. That has only intensified. Given the current technological constraints, it is crucial to have the main issues sorted out in advance as much as possible. Disclosure and Case Management The next step after being released, or after a bail hearing, is to obtain disclosure. Disclosure is all of the materials and information the Crown has in relation to the charge(s). Every accused is entitled to receive all the documents the Crown has containing evidence against (or for) the accused, unless the documents are privileged or clearly irrelevant. During the pandemic, the accused should usually not go to the courthouse to obtain disclosure, but rather contact the Crown Attorney’s office that is prosecuting the case to ask them how to obtain their disclosure. Where possible and appropriate, the Crown will typically email or otherwise provide a digital copy of the disclosure via some form of electronic document sharing. Under normal circumstances, disclosure materials would be provided at the first court appearance and additional court appearances thereafter. These appearances are criminal case management dates and they are held after an accused is charged but before the matter proceeds to trial or is resolved. The purpose of these dates is for the Crown and accused to advise the court on the status of the case and ensure that it is moving forward. As a result of the pandemic, these case management court appearances are now held virtually and the accused or their lawyer can attend via ZOOM – either by video conferencing or calling in by phone. The ZOOM coordinates for case management courts in each courthouse in Ontario can be found in the latest notice and practice direction for criminal proceedings issued by the Ontario Court of Justice. Navigating the criminal justice system as an accused is daunting under any circumstances. The ongoing pandemic has changed certain aspects of the system that may at times simplify the process, but may also make navigating the system more difficult. If you need help with your criminal law matter contact David Schell at 416-446-5096 or David.Schell@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawMarch 8, 2021March 15, 2021