Proceedings

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IN THE MATTER OF THE SECURITIES ACT
R.S.O. 1990, c. S.5, AS AMENDED

- AND -

IN THE MATTER OF SHANE SUMAN
AND MONIE RAHMAN

ORDER


      WHEREAS on July 24, 2007 the Ontario Securities Commission (the “Commission”) issued a Notice of Hearing pursuant to section 127 of the Securities Act, R.S.O. 1990, c. S.5, as amended, to consider whether it is in the public interest to make certain orders against Shane Suman (“Suman”) and Monie Rahman (“Rahman”), (collectively, the “Respondents”);

      AND WHEREAS on August 28, 2007, counsel for Staff of the Commission (“Staff”) and counsel for the Respondents attended before the Commission for a first appearance, at which time they agreed to attend a pre-hearing conference on October 23, 2007;

      AND WHEREAS on October 23, 2007, counsel for Staff and counsel for the Respondents attended before the Commission for a pre-hearing conference, at which time the parties agreed to attend a pre-hearing conference on November 26, 2007;

      AND WHEREAS on November 26, 2007, counsel for Staff and counsel for the Respondents attended before the Commission for a pre-hearing conference, at which time the parties agreed to attend a pre-hearing conference on December 28, 2007;

      AND WHEREAS on December 28, 2007, counsel for Staff and counsel for the Respondents attended before the Commission for a pre-hearing conference, at which time the parties agreed to attend a pre-hearing conference on January 29, 2008;

      AND WHEREAS on January 29, 2008, counsel for Staff, counsel for the Respondents and Suman attended before the Commission for a pre-hearing conference, at which time counsel for the Respondents withdrew from the record with the consent of the Respondents, and counsel for Staff and the Respondents agreed to attend a pre-hearing conference on February 12, 2008;

      AND WHEREAS, on February 12, 2008, counsel for Staff and Suman, representing himself and as agent for Rahman, attended before the Commission for a pre-hearing conference and it was ordered that: (1) the hearing of the merits in this matter shall commence on Wednesday, September 3, 2008 at 10:00 a.m., for ten days, with the exception of Friday September 12, 2008 and Tuesday September 16, 2008 (the “September Hearing Dates”), or such other date as ordered by the Commission; and (2) a further pre-hearing conference in this matter, to be held by Friday, July 11, 2008, shall be arranged by the parties through the Office of the Secretary to the Commission;

      AND WHEREAS, on June 27, 2008, counsel for Staff and Suman, representing himself and as agent for Rahman, attended before the Commission for a pre-hearing conference, at which time the Respondents’ disclosure motion was set down for July 17, 2008;

      AND WHEREAS, on July 17, 2008, counsel for Staff, Suman and newly-retained counsel for Rahman, attended before the Commission to speak to the Respondents’ disclosure motion;

      AND WHEREAS, on July 17, 2008, counsel for Rahman moved for an adjournment of the disclosure motion hearing on the ground that he requires more time to review the disclosure already made by Staff and to consider additional disclosure requests, Suman joined in the adjournment motion, and counsel for Staff did not contest the adjournment request;

      AND WHEREAS on July 17, 2008, the Commission adjourned the disclosure motion to July 30, 2008 and cancelled the pre-hearing conference previously scheduled for August 5, 2008;

      AND WHEREAS Staff has made disclosure to the Respondents, including disclosure of forensic images of hard drives of Suman’s home computer and of certain hard drives from the computers to which Suman had access while employed by MDS Sciex, a division of MDS Inc. (“MDS”);

      AND WHEREAS Staff offered and continues to offer the Respondents an opportunity to inspect forensic images of two hard drives from the computers to which Suman had access while employed by MDS (the “Disputed Hard Drive Images”) only at the offices of the Commission, with or without a retained expert, and with certain restrictions;

      AND WHEREAS Staff denied the Respondents or either of them alternative means of access to the Disputed Hard Drive Images unless counsel has been retained and has signed an undertaking in a form acceptable to Staff;

      AND WHEREAS on July 30, 2008, Suman and counsel for Rahman moved for an adjournment of the September Hearing Dates, and for unrestricted access to the Disputed Hard Drive Images to enable the Respondents to make full answer and defence;

      AND WHEREAS Staff submits that the Disputed Hard Drive Images were obtained by way of summons pursuant to section 13 of the Act, and that MDS has determined that the Disputed Hard Drive Images contain private personal employee information and highly sensitive commercial information;

      AND HAVING CONSIDERED written and oral submissions from Staff and from Suman and counsel for Rahman;

      IT IS HEREBY ORDERED that:
  1. The hearing on the merits, previously scheduled to commence on September 3, 2008, is adjourned to commence on October 20, 2008, or such other date as is agreed by the parties and determined by the Office of the Secretary, or otherwise ordered by the Commission;
  2. Staff shall provide the Respondents or either of them with an opportunity for private inspection of the Disputed Hard Drive Images at Staff’s offices, with or without the assistance of counsel for the Respondents or either of them (“Counsel”), and with or without the assistance of a computer forensic expert retained by Counsel (“Expert Retained by Counsel”);
  3. Staff shall provide Counsel with a copy of the Disputed Hard Drive Images;
  4. Counsel may provide an Expert Retained by Counsel with the copy of the Disputed Hard Drive Images provided by Staff;
  5. Except with the express consent of Staff or by order of the Commission, no one other than the Respondents, Counsel and/or an Expert Retained by Counsel shall view the Disputed Hard Drive Images;
  6. The Disputed Hard Drive Images shall not be electronically copied;
  7. The Disputed Hard Drive Images shall not be hard copied except for the purpose of enabling Rahman and Suman to make full answer and defence in this proceeding;
  8. The Disputed Hard Drive Images shall be maintained in the custody and control of Counsel or an Expert Retained by Counsel;
  9. Upon the completion of this proceeding and any appeal, Counsel shall return to Staff the copy of the Disputed Hard Drive Images provided by Staff and all hard copies made by or on behalf of the Respondents or either of them, Counsel or an Expert Retained by Counsel;
  10. The Disputed Hard Drive Images and the information contained therein shall not be used or disseminated except for the purpose of making full answer and defence to the allegations made against the Respondents in this proceeding and any appeal, and shall not be used for any collateral or ulterior purpose; and
  11. The Disputed Hard Drive Images, to the extent not filed and admitted in this proceeding, shall be governed by section 17 of the Act, as well as the implied undertaking rule, and shall not be used by Suman or Rahman in any other regulatory, criminal or civil proceeding.
DATED at Toronto this 1st day of August, 2008.


Lawrence E. Ritchie
Lawrence E. Ritchie


David L. Knight
David L. Knight, FCA
Carol S. Perry
Carol S. Perry