If Canada Post gets documents so should Caspian, contractor's lawyer argues

If Canada Post gets access to documents seized as part of a fraud investigation into construction contractor Caspian, then Caspian should be granted the same right, say lawyers for the contractor.

The lawyers for Caspian Construction and Caspian Projects Inc. were in court to argue that position Wednesday. 

Both Caspian companies are owned by contractor Armik Babakhanians, and had been hired to build two multi-million dollar construction projects the RCMP are presently investigating for alleged fraud.

The Winnipeg police headquarters, which cost the city just under $214 million dollars to buy and transform an old building downtown into the new HQ, and the Canada Post Mail Processing Plant, which opened near the James Richardson International Airport in 2010, and cost the Crown corporation more than $100 million.

In August, Canada Post asked the courts for access to invoices seized by the RCMP as part of the fraud investigation into the construction of the Winnipeg mail plant. The Crown corporation said it wanted to analyze those documents and potentially file a civil suit to recoup any money owed.

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Caspian's lawyer said his client is opposed to the sharing of documents, but if the courts grant Canada Post's application, then Caspian should get to see the documents too.

"Caspian should have the same access as Canada post in fairness," said lawyer Jeff Baigrie. "We have to have access to the documents in fairness to defend ourselves."

On Tuesday, Canada Post's lawyer Bob Sokalski said the sworn affidavits and information to obtain search warrants that RCMP filed in court as part of their criminal investigation clearly prove a fraud has been committed. 

But Baigrie pushed back, and argued there is no proof of fraud, or "the f-word" as he called it, particularly because he said in order to prove fraud you have to prove intent.

"The officers involved have no auricular insight into the minds of Caspian and its employees," Baigrie said.

He said Canada Post is on a "fishing expedition" and should not be given access to the documents, which still belong to Caspian, even though they are in the RCMP's possession.

Caspian can't present full case

When Baigrie was done, Caspian's other lawyer Saul Simmonds got up to present his arguments but was stopped by Court of Queen's Bench Justice Sadie Bond, who said he had not filed a motions brief outlining his arguments which is required in cases such as this.

Simmonds, who is a criminal defence lawyer, said he wasn't familiar with civil court rules and didn't know he had to file a brief in advance.

Sokalski, who appeared outraged, stood up and told the court he had emailed Simmonds on September 6 to tell him if he intended to make any arguments in court during the December hearing, he would need to file a motions brief in advance.

"To show up at the eleventh hour and say you didn't know. That's way offside, that's way out of line," he said. 

Sokalski said in civil court, briefs must be filed seven days in advance, and in criminal court the timeframe is even longer.

"Those are the rules," he said. 

The court was told Simmonds had sent a two-page email Tuesday night briefly outlining the points he wanted to make but did not go into enough detail to give Canada Post the opportunity to properly prepare a response.

"I'm limiting your argument today because of your failure to comply with the rules," said Justice Bond. 

Simmonds was allowed to re-argue points already made by Baigrie.

On Tuesday, lawyers for the Attorney General of Manitoba and Canada argued on behalf of the RCMP and the Crown that any sharing of the documents would compromise the police probe which is not yet complete.

Justice Bond reserved her decision and will deliver her ruling at a later date.