Investigator’s use of wife’s e-mail account (???) leads to stay for abuse of process

11 Jun

The use of personal e-mail accounts for work purposes is out of control. A May 23rd judgement of the Court of Appeal of Alberta illustrates.

The Court affirmed a stay a prosecution that an accounting profession tribunal ordered because an investigator used his wife’s e-mail to send and receive correspondence in conducting an investigation. The Court agreed with the tribunal that the respondent did not consent. It said:

In our view, whatever standard of review one applies to the Appeal Tribunal’s review of the Discipline Tribunal’s decision on this point, it is clear that the finding of consent cannot be sustained. While it might be possible to infer that Clark consented to the disclosure of information he sent to Rockwood’s wife’s e-mail address, no such inference can be drawn with respect to the confidential information gathered by the investigator about Clark from the complainant and other third parties. Clark did not know that information about him was being gathered in this fashion, and counsel for CIC conceded that Rockwood’s wife might have seen some of these e-mails.

The Court also held that the tribunal was reasonable to conclude that a stay (though an extreme remedy) was warranted, particularly given the investigation and prosecution at issue was for breaching client confidences: “…the stay was the only way to hold the CIC to the standard of conduct expected of all members of the profession.”

Clark v. Complaints Inquiry Committee, 2012 ABCA 152 (CanLII).

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One Response to “Investigator’s use of wife’s e-mail account (???) leads to stay for abuse of process”

  1. Jeremy Maddock June 11, 2012 at 2:37 am #

    Quite ironic that the investigators alleged “Clark had sent unprofessional e-mail communications and disclosed confidential client information to third parties,” then proceeded to engage in the same kind of sloppy conduct themselves.

    A stay was certainly necessary in this case to send a message that investigators with professional associations are not above the law.

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