The Superior Court of Justice has granted leave to appeal in a case that considered whether law enforcement can hand over information from a criminal case to a law firm acting in a civil action.
In Massa v. Sualim Justice Thomas Lederer looked at whether or not the RCMP was authorized to disclose information concerning 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 information, on the other, is to be resolved is important, even fundamental, 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 granted,” said Lederer in his Sept. 12 decision.
The motion before Lederer was for leave to appeal an order granting the motion of the plaintiff to continue a Mareva injunction which had initially been granted ex parte; that is, without notice to, or participation of, the defendants.
Massa claims to be the victim of a fraud. He believes the fraud was 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 semi-conductor product used in computer chips. Massa wired funds pursuant to instructions received by e-mail and claims he advanced and lost $840,000.
Lederer wrote in his decision: “In granting the injunction, Justice Stinson noted that Leon Massa had never met Alex Sualim. Despite this, he found that there was strong circumstantial 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 defrauded by Alex Sualim.”
The injunction was granted by an order of Justice David Stinson on Dec. 5, 2013. It was continued and re-stated on Dec. 12, 2013. On Dec. 20, 2013, as a result of a motion brought by the defendant, Sandra Sualim, an order was made capping the value of the injunction at $1.6 million.
In January of this year, the parties (all of them) appeared before Justice Elizabeth Stewart to determine if the injunction should be continued on its merits. This was joined by a motion to strike parts of the material filed in support of the injunction. The motion to strike was dismissed and the injunction continued. It is that order which the defendants were seeking leave to appeal.
At issue is whether the RCMP was authorized to send material from the case on to the law firm acting on behalf of Massa or whether it breached Alex Sualim’s right to privacy when it did so.
“At its root,” Lederer said, “the question the case asks is whether the release of information to a private lawyer, for use in a civil action, can be justified as consistent with the purpose for which the information was obtained, particularly in the absence of a request to, and consideration by, the “head of a government institution.”
He went on to say: “To my mind, there is a serious question as whether the justification for the release of the documents by the RCMP to a lawyer to be used in a civil matter is properly established by a subsequent finding of a prima facie case in the civil proceeding. For one thing, the burden of proof is different. The reasons of Madam Justice Stewart depend on the presence of a crime, but there is a serious question as to whether this can be taken as having been established by a finding that is based on the civil standard (balance of probabilities) as opposed to the criminal standard (beyond a reasonable doubt). Under the legislation relied on, in the absence of a crime, there can be no justification for the release of the material to a lawyer for the purpose of pursuing a civil fraud. In such circumstance, its release is not for a purpose consistent with the use for which it was obtained.”
