The enabling statute of a regulatory body typically includes a right of the regulator to apply to a court for an order permitting someone to search and seize items on the property of a named person, who may be a non-registrant, or for an order that a person produce an item to a particular committee. For example, section 29 of the Health Professions Act provides to each college a right to apply to the court for a search and seizure order, without notice to either the registrant being investigated or to the person against whom the order is being sought, in private (i.e., in a closed courtroom), and on evidence disclosing reasonable grounds for the court to believe that the inquiry committee may find evidence of misconduct, a breach of a standard, etc. Similarly, section 45 of the Engineers and Geoscientists Act provides for a right of APEG’s council to apply to the court for an order that a person produce “any record or thing” that is relevant and reasonably required for an investigation or a review of professional practice.
A regulator intending to apply to a court for a search and seizure order should consider the following issues:
- Do any privacy issues require a preliminary application by the regulator to have the court file sealed and have the application heard in private? For example, is the inquiry, disciplinary, or review process a private matter under the governing legislation, such that privacy is crucial to maintaining the integrity of the process? Or does the information contain sensitive third party information or business information that must be protected from disclosure to the public? Remember that court hearings are generally open to the public, and that court registry files are generally accessible by the public.
- Is the obtaining of items urgent, or might evidence disappear if warning of a search is given to anyone? If so, consider bringing the application without notice, but be sure there is proof of urgency, or evidence to support a concern about a warning of a search being given, because a court will ask why notice was not given (even if an application without notice is allowable by statute).
- In the application materials, be as precise as possible in the description of the items sought as the court will be concerned about granting a broad, open ended order. In my experience, when there is time to give notice to the non-registrant, I am able narrow down a description of the items at issue with the cooperation of the non-registrant’s lawyer.
- Be prepared with a plan on how the items will be returned, destroyed or otherwise maintained as the court will ask.