Law Times

Page 2 September 22, 2014 • Law Times www.lawtimesnews.com NEWS Massa v. Sualim Can police pass criminal case information to civil litigators? By JeNNiFer BrOWN & yamri Taddese Law Times he Superior Court of Justice has granted leave to appeal in a case that considered wheth- er police could informally hand over information from a crimi- nal matter to a law firm acting in a civil action. In Massa v. Sualim, Jus- tice Thomas Lederer looked at whether or not the RCMP could disclose information concern- ing Alex Sualim to a lawyer at a private firm acting for Leon Massa. "I have little difficulty in finding that establishing how the tension between privacy, on the one hand, and access to in- formation, on the other, is to be resolved is important, even fun- damental, to the relationship of Canadian citizens and residents to our government institutions. The proposed appeal involves matters of such importance that leave to appeal should be grant- ed," said Lederer in his Sept. 12 decision. The issue before Lederer was for leave to appeal an order granting the plaintiff 's motion to continue a Mareva injunction initially granted on an ex parte basis. According to Lederer's en- dorsement, Massa claims to be the victim of a fraud perpetrated by Sualim. Massa has never met or spoken to Sualim but took part in what he understood was a venture to distribute silicon germanium, a semiconductor product used in computer chips. Massa wired funds pursuant to instructions received by e-mail and claims he advanced and lost $840,000, Lederer noted. None of the allegations have been proven in court. In summarizing the case, Lederer wrote: "In granting the injunction, Justice [David] Stinson noted that Leon Mas- sa had never met Alex Sualim. Despite this, he found that there was strong circumstan- tial evidence to support the conclusion that Alex Sualim was the fraudster or otherwise complicit in the fraudulent activity of which Leon Massa was a victim. On this basis, he concluded that there was a strong prima facie case that Leon Massa had been defraud- ed by Alex Sualim." Stinson, who granted the or- der last year, relied on the infor- mation obtained from police to conclude there was a strong pri- ma facie case. At issue is whether the RCMP had authority to send material from the case to the law firm acting on behalf of Massa or whether it breached Sualim's right to privacy when it did so. In January of this year, the parties appeared before Justice Elizabeth Stewart to determine if the injunction should contin- ue. The proceedings included a motion to strike parts of the material filed in support of the injunction. Stewart refused to strike portions of the materials after finding the police hadn't breached any privacy laws in handing over information for use by victims of fraud. "I think she's absolutely wrong in law," says Kelly Fried- man, a privacy lawyer with Da- vis LLP. "The privacy legislation says you can disclose to law enforce- ment agencies or to aid an inves- tigation. It doesn't say you can give it so that someone can col- lect civil damages," she adds. "The breach is obvious," says Friedman, because the Privacy Act requires consideration by a government head before mak- ing a decision to disclose infor- mation. "This is clearly the personal information of a third party." Even so, the question Stewart should have asked was whether the evidence was admissible by weighing the probative value and any prejudice instead of just look- ing at whether there was a privacy breach, according to Friedman. She adds that even if there was a privacy breach, the judge could have used her discretion to deem the evidence admissible. She suggests Sualim can potentially sue the RCMP and Massa's lawyer over the privacy issue but would have to do so in a different forum. Toronto lawyer Tudor Carsten, also of Davis, says civil counsel often gather informa- tion from police through infor- mal channels. "The reality is that a lot of lawyers who practise civil fraud like I do . . . develop a network and you obtain information through that network," he says. "What this decision says in a way is that obtaining informa- tion informally through that network may not be an appro- priate thing to do." He points out that the judge in the case didn't find the police shouldn't have disclosed the in- formation to the lawyer but sim- ply that they hadn't followed the right steps. But Lederer did suggest the need for serious consideration as to whether the release of police-obtained information is justifiable in a non-criminal context. "At its root, the question the case asks is whether the release of information to a private law- yer, for use in a civil action, can be justified as consistent with the purpose for which the infor- mation was obtained, particu- larly in the absence of a request to, and consideration by, the head of a government institu- tion," he wrote. LT SPACE APRIL 2013 | LEXPERT.CA | $16.95 THE BUSINESS MAGAZINE FOR LAWYERS THE DEAL FEEDING The upward trajectory of agribusiness M&A PM# 40065782 Scott Exner, MacPherson Leslie & Tyerman LLP; Patrice Walch-Watson, Torys LLP; John Kosolowski, Duncan & Craig LLP CANADA'S PRE-EMINENT MAGAZINE FOCUSING ON THE BUSINESS OF LAW Showcasing leading lawyers and valuable legal business information, Lexpert® is the authoritative source for the latest news and information on the business of law in Canada. 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