Litigation Update- May 2010

LEGISLATIVE UPDATE

(a) Bill 38 – Criminal Record Checks for Volunteers Act, 2010, first reading 16 April 2010

The purpose of this Act is to promote volunteerism by reducing the frequency with which an organization can require a criminal record check for a volunteer and by reducing the cost to a volunteer of obtaining a criminal record check, while still ensuring public safety. The proposed Act would not apply in a municipality where a police force does not charge for the release of the criminal record check.

The proposed Act would preclude an organization from requiring a volunteer to provide a criminal record check as a condition of commencing or continuing work for the organization if (a) the volunteer provided a criminal record check that is less than one year old; and (b) the criminal record check is the latest one obtained by the volunteer. However, the organization can require the volunteer to provide it with notice of all proceedings which may result in a conviction, and may require a criminal record check if the organization has actual notice or reasonable grounds to believe that a conviction for an offence has been added to the volunteer's criminal record since the date of the most recent criminal record check for the volunteer that the organization has received.

(b) Bill C-21 – An Act to Amend the Criminal Code (sentencing for fraud); first reading 3 May 2010

This Bill is otherwise known as the Standing up for Victims of White Collar Crime Act. The intent of the Bill is to combat "white collar" crime by way of tougher sentencing provisions in the Criminal Code, including:

a minimum two-year imprisonment term for fraud offences exceeding one million dollars; consideration of the magnitude, complexity, duration or degree of planning of the fraud committed as a specified aggravating factor for the court's consideration in sentencing; a prohibition on considering as mitigating circumstances the offender's employment, employment skills, status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence; a new type of prohibition order prohibiting the offender from seeking, obtaining or continuing any employment, or becoming or being a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person; and consideration of a new type of community impact statement made by a person on a community's behalf describing the harm done to, or losses suffered by, the community arising from the commission of the offence. DEVELOPMENTS OF INTEREST IN CASE LAW

(a) Conflict of Interest – Removal of Lawyer of Record – Confidential Information: Rosenstein v. Plant, 2010 ONSC 502, Released 26 January 2010

Plant and Rosenstein separated, and Rosenstein retained a lawyer, Ages, to vary the terms of the separation agreement. Plant, himself a lawyer, moved to remove Ages based on a conflict of interest. Plant alleged that he had discussed confidential matters with Ages on more than one occasion and Ages had provided Plant with advice. Specifically, ten years before, Ages and Plant met over lunch to discuss Ages' firm's interest in having Plant join them; there was a discussion on the street in fall 2006, before Plant and his wife separated, in which Plant claimed to have provided details of his personal and professional life, and to have received advice from Ages; and there was a discussion with Ages at the court house in spring 2009 when the two ran into each other at Assignment Court, during which Plant discussed his law partnership and financial circumstances respecting his former wife. Ages...

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