In Law Society of Ontario v Marusic, the Law Society Tribunal held that licensees have a reasonable—albeit diminished—expectation of privacy in work computers and work-related emails as compared to personal accounts[1]. This decision raises important considerations for both regulated professionals in terms of reasonable expectations of privacy when it comes to devices used in their professional capacity and regulators when evaluating the scope of an individual’s privacy interests in the context of cooperative investigations.
Background
In 2017, the Law Society commenced an application in connection with the alleged misconduct of a lawyer, Ms. Marusic. As part of its investigation, the Law Society requested disclosure of electronic documents relating to a specific file, referred to as Client B. Ms. Marusic cooperated with investigators, allowing them to image (copy) her firms’ hard drives and servers. She did so after it was agreed that the Law Society would only view and take documents that “related to” the Client B matter during the relevant period. It was on this basis that Ms. Marusic gave her consent to the imaging of the entire hard drive, something she was not obligated to do.
In 2019, the Law Society commenced a second application. Relying on emails it discovered during its initial investigation—including emails of a personal nature—the Law Society raised new allegations of misconduct relating to matters other than the Client B matter.
Ms. Marusic brought a motion in the second proceeding to exclude from evidence the various emails that the Law Society obtained from her firm’s computer and server. She argued that the Law Society went beyond their agreement and improperly searched for and seized other emails not related to Client B.
The parties agreed that the Charter applied to the Law Society’s actions. In carrying out its regulatory functions, the Law Society was exercising its legislative authority and is therefore required to comply with the Charter.
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