Safety And HR Consultants Beware: Unlicensed Private Investigator Convicted

by Dentons
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Health and safety and human resource consultants who conduct investigations or retain outside experts to do so, should pay attention to a court decision in which an Ontario man was convicted of acting as a private investigator without a license.

Ontario’s Private Security and Investigative Services Act, 2005 defines a private investigator very broadly as “a person who performs work, for remuneration, that consists primarily of conducting investigations in order to provide information.”

That Act states that “no person shall act as a private investigator or security guard or hold himself or herself out as one unless the person holds an appropriate licence under this act.”

The defendant had attended “tax sales” (forced sales of homes in order to pay back-taxes owing to a municipality) in the past and had purchased homes in this manner.

The defendant undertook several investigations, including checking to determine whether a particular property had fallen into tax arrears and was in jeopardy of being sold, and determining if the property was free and clear of any liens.  Having been unsuccessful in his attempt to purchase the home, he realized that there would be a “surplus” from the sale, so he located and approached the owner of the home who was apparently unaware of the surplus.   The owner agreed to split any “surplus” from the sale 50-50.

The court decided that the defendant was able through investigative techniques to deduce where the property was located and who owned it, and that he had profited from his investigation.  As such, he had acted as a private investigator without a license.  He was therefore guilty of an offence.

The case indicates how broad the term “private investigation” can be interpreted.  Safety professionals and human resources managers who hire private investigators for a fee, should satisfy themselves that the private investigator is licensed.

Although the Act includes several exemptions, including “persons who perform work, for remuneration, that consists primarily of searching for and providing information on . . . the qualifications and suitability of persons as employees or prospective employees”, there are many types of workplace investigations that could fall outside of that exemption.

The bottom line is that safety professionals or human resources managers who undertake “private investigations” themselves for a fee, should check whether their activities require a license.

R. v. Harvey, 2012 ONCJ 702 (CanLII)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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