The lawyer in the ordinary course of his practice utilizes
employees such as articling students, law clerks and secretaries.
Communication to such agents for the purpose of facilitating the
obtaining of legal advice is equally protected. The same can be
said about the client’s agents so long as they are
employed as his agents for the purpose of obtaining
legal advice.
- The Law of Evidence in Canada
Agents vs. Third Parties
Environmental consultants can be agents
Structure the relationship between company, environmental
consultant and lawyer carefully to create agency
Descôteaux v. Mierzwinski (SCR)
…a lawyer’s client is entitled to have all communications made
with a view to obtaining legal advice kept confidential. Whether
communications are made to the lawyer himself or to employees,
and whether they deal with matters of an administrative nature
such as financial means or with the actual nature of the legal
problem, all information which a person must provide in
order to obtain legal advice and which is given in
confidence for that purpose enjoys the privileges
attached to confidentiality. This confidentiality attaches to
all communications made within the framework of the solicitorclient relationship, which arises as soon as the potential client
takes the first steps, and consequently even before the formal
retainer is established
No free evidence / Control the documents you can
Include a lawyer in your audit plans
Organize communications carefully so solicitor-client privilege
applies
Keep privileged documents (e.g. reports, e-mails, memos between
consultant and lawyer) separate from other documents and
marked distinctly
Do not share privileged documents outside your company without
legal advice (e.g. statutes compelling production of documents
likely do not apply to privileged communications).
Keep your eye on who is in charge
Penal and civil liability is usually assigned to the brains of the
operation (i.e. “charge, management and control”)
Even if you were hired to give advice, be mindful of how much
your client is deferring to you. Keep them in the loop if you don’t
want the risk
If you hire an environmental professional to do a job, but can’t
keep your hands off the decisions, you may be in charge
Prosecutors occasionally charge everybody on a project and wait
for one without control to give up evidence on the other in
exchange for dropping the charges.
Due Diligence Defense
You have the burden to prove to the court you took all reasonable
care in the circumstances to prevent the offence
To use this defense, must take steps well in advance of the
charges
R. v. Sault Ste. Marie
While the prosecution must prove beyond a reasonable doubt that
the defendant committed the prohibited act, the defendant
must only establish on the balance of probabilities
that he has a defence of reasonable care.
R v. Bata Industries
The defendant must establish on the balance of probabilities that
they were duly diligent, that is, they must establish that they
exercised all reasonable care by establishing a proper
system to prevent commission of the offence and by
taking reasonable steps to ensure the effective
operation of the system. The availability of the defence to a
corporation will depend on whether such due diligence was taken
by those who are the directing mind and will of the corporation,
whose acts are therefore in law the acts of the corporation itself.
Proving Reasonable Care is Harder than it Sounds
Predict the harm
Identify precautions and take them (i.e. look for risky things)
If you miss the precaution, you’re cooked
Prepare an Environmental Management System
Write it down; tell everybody at the company about it
Do it
Check it and improve it
Personal Liability Tied to Role in Company
President of the company not responsible for taking out the trash
Front line workers not responsible for company’s lack of environmental
policy
Mind your neighbours
Be responsive to complaints from neighbours; governments
enforce when neighbours tell them about things
Don’t hurt anybody
If you learn about a condition that might hurt people or ruin other
people’s lands or businesses, make it safe first.
No comments:
Post a Comment