Registrant Working from Home Stymies Regulator

While regulators are often given search and seizure powers, they are rarely used. Generally, the authority to enter business premises without a warrant, the duty of registrants to cooperate, and the authority to summons witnesses and documents are sufficient to elicit cooperation. However, in the case of The Law Society of Ontario v Bowie, 2022 ONSC 7144 (CanLII) a Court agreed that the usual investigative powers were insufficient.

In that case, the regulator was investigating allegations of sexual harassment of more than one person by the registrant. The regulator wanted to confirm that the messages received by the individuals originated from the registrant’s devices and social media. The regulator also sought evidence of harassment of other potential victims. The registrant refused to surrender his electronic devices and the regulator could not obtain them because they were not located at his business premises; the registrant generally worked from home or his vehicle. There was urgency to obtain the social media posts before they expired.

The Court granted the order authorizing searching and accessing the devices and social media accounts even from his home or vehicle. The Court said: “The allegations against the respondent are of a predatory nature.” The Court approved of the arrangements by the regulator for a third party to hold the information to protect the privacy and privilege of information unrelated to the investigation. The Court also agreed to a temporary sealing of the file to protect the integrity of the investigation and the privacy of the complainant. The Court also delayed the release of its decision and reasons for a brief time until the search could be executed.

This case illustrates the kind of circumstances, and manner, in which search and seizure powers can be exercised by a regulator.

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