Date: 20050404
Docket: T-1375-04
Citation: 2005 FC 442
Toronto, Ontario, April 4th, 2005
Present: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
YUNHONG DING, SHIYANG DING by His Litigation Guardian YUNHONG DING,
and DANIEL SHIWEN DING by His Litigation Guardian YUNHONG DING
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] On July 22, 2004, the plaintiff, Yunghong Ding ("Ding") filed a statement of claim seeking $11,000,000 in damages on behalf of himself and his two minor children, Shiyang Ding ("Shiyang") and Shiwen Ding ("Shiwen"). Ding is self-represented, and purports to represent his children as litigation guardian.
[2] The action arises from the allegedly wrongful conduct of employees with Citizenship and Immigration Canada ("CIC") who were involved in processing Ding's application for Canadian citizenship. The plaintiffs' claims are framed as a breach of statutory duty, abuse of authority, and as violations of the plaintiffs' rights under s. 7 and ss. 12(1) and 15(1) of the Canadian Charter of Rights and Freedoms ("the Charter"). The plaintiffs claim that they suffered damages, including aggravated post-traumatic stress disorder, mental anguish, and physical pain and suffering, as a result of the tortious conduct of CIC officers.
[3] The defendant seeks an order, pursuant to Rules 3, 8, 174, 221(1)(a),(b),(c) of the Federal Court Rules, 1998 (theRules), striking out the plaintiffs' action on the grounds that it does not disclose a reasonable cause of action; that all or portions of the statement of claim are immaterial or redundant; and that the statement of claim is scandalous, frivolous or vexatious. The defendant requests, in the alternative, an extension of 20 days to serve and file a statement of defence.
[4] For the reasons that follow, I conclude that the statement of claim should be struck out on two distinct grounds. First, the pleading does not give the defendant fair notice of the case which it has to meet, and prevents the Court from properly regulating the proceedings. Second, it fails to disclose any reasonable cause of action.
Facts
[5] Paragraphs 3 to 30 of the statement of claim set out the facts upon which the plaintiffs rely in support of their action. The allegations are very detailed and comprise ten pages of the 22-page statement of claim. There is no need to reproduce these paragraphs in their entirety. A brief summary of their contents, which must be taken as proven for the purposes of this motion, will suffice.
[6] It is pleaded that Ding and his family were landed as permanent residents in Canada in February 1998, and moved to Canada on March 21, 1998. The plaintiffs resided in London, Ontario from March 1998 to January 2000, and then settled permanently in Windsor, Ontario. Ding started commuting daily to study at a school in Detroit, Michigan in May 2000.
[7] In April 2001, Ding applied for Canadian citizenship for his family. He failed to list in his application form a number of trips he had made to the United States in the previous three years, even though ss. 5(1) of the Citizenship Act provides that to become a Canadian citizen, a permanent resident must have resided in Canada for at least three years out of the four years immediately preceding the application for citizenship. The plaintiffs admit that Ding travelled on several occasions to the United States before submitting his application. Ding estimates that he spent no more than 7 or 8 days outside of Canada in the three years preceding his application.
[8] Although the plaintiffs, Shiyang and Shiwen, eventually acquired Canadian citizenship, Ding's application was held up by CIC. When Ding called the CIC Information Centre in May 2002 to enquire about the reasons for the delay in processing his application, he was informed that a background check was being conducted.
[9] Five months later, Ding contacted the office of his local member of Parliament, Mr. Masse, to seek assistance in determining the status of his application. He was advised by someone in Mr. Masse's office that the CIC office in Windsor ("Windsor CIC") would be sending him a letter requesting documents to confirm his residence status at the time he applied for citizenship.
[10] Ding eventually received a letter from CIC requesting further information. The letter also stated that Ding did "something wrong" by not listing his trips outside of Canada (paragraph 5 of the statement of claim). Ding submitted additional information and documents to the Windsor CIC in November 2002 to explain why he had not listed his trips to the United States, and to show that he met the residence requirement notwithstanding.
[11] Another year went by without any decision being made on Ding's application. In the interim, Ding started commuting to work in Detroit, Michigan. Ding continued to complain to Mr. Masse's office, as well as to other government officials, including the Governor General of Canada, about the delay in processing his application. Ding eventually learned that CIC's concerns related primarily to Ding's failure to report a trip to Chicago during the relevant period, his failure to claim a dependent child when he landed in Canada, and his failure to report that he was attending school when he claimed employment insurance benefits.
[12] At a meeting with a CIC Windsor officer in June 2004, Ding attempted to explain away various "mistakes" he made in completing his application forms for landing, citizenship and employment insurance. He denied that any of his statements were false. With respect to his trip to Chicago, Ding explained that he thought it was too short to include in his application for citizenship. As for his failure to declare a dependent child at the time of landing, Ding simply responded that "CIC had made a decision on this before". Finally, Ding conceded that he had failed to report that he was attending school when he applied for employment insurance benefits and volunteered to repay the benefits he had received. Ding's explanation for making the unfounded claim, as pleaded, was that "he went to school in order to cheat his wife, not for study (sic), to let his wife comfortable (sic), at that time he had no ability to study, all this in order to prevent his family broken (sic)."
[13] Various officials at CIC Windsor officer reviewed the status of Ding's citizenship application with him. They recommended that he withdraw his application and re-apply it, failing which the matter would have to be referred for hearing before a Citizenship Judge. Ding refused to do so.
[14] The plaintiffs claim that CIC officials treated Ding unfairly and abused their authority by not accepting his explanations and the documents he submitted to correct the information in his file. The plaintiffs further claim that CIC officials were not authorized to consider documents which he submitted in support of his applications for landing or for employment insurance since the information is confidential under the Privacy Act. Finally, at paragraph 35 of the statement claim, the plaintiffs allege that Ding was discriminated against because he is "a Chinese".
[15] From paragraph 31 to 58 of the statement of claim, the plaintiffs lay out six "counts", or causes of action, against the defendant:
(a) the intentional violation of Ding's equality rights under section 15(1) of the Canadian Charter of Rights and Freedoms ("the Charter") and under the Privacy Act;
(b) the intentional violation of Ding's equality rights under section 15(1) of the Charter and under the Citizenship Act;
(c) the intentional violation of Ding's legal rights under section 12(1) of the Charter, under the Immigration Act, and under the Citizenship Act;
(d) the Defendant's breaches of duty by failing to provide a "no abuse of authority, no discrimination and no harm environment";
(e) the intentional infliction of emotional distress; and
(f) the intentional violation of the plaintiffs' legal rights under section 7 of the Charter.
Legal principles
[16] This Court has jurisdiction under Rule 221 of the Rules to strike a statement of claim. Because dismissal of an action for failure to state a reasonable cause of action is a drastic measure, the Court is required to give a generous reading to the statement of claim, construe it in the light most favourable to the plaintiff, and be satisfied that it is plain and obvious that the plaintiff cannot succeed: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. As a general principle, therefore, the Court will be hesitant to strike out a statement of claim.
[17] A statement of claim should be struck, however, where it contains a radical defect, or where the plaintiff is seeking relief for acts that are not proscribed under the law. Moreover, when a particular cause of action is pleaded, the claim must contain material facts satisfying all the necessary elements of the cause of action. Otherwise, the inevitable conclusion would be that such a claim discloses no reasonable cause of action: Howell v. Ontario (1998), 159 D.L.R. (4th) 566 (Ont. Div. Ct.).
Analysis
[18] The plaintiffs' statement of claim is a long, rambling document that sets out a narrative account of Ding's dealings with various CIC officers with respect to his citizenship application over a number of years. The essence of the plaintiffs' claim appears to be that an officer or officers at the Windsor CIC acted unfairly and in a discriminatory manner towards him in handling his application for citizenship.
[19] The plaintiffs acknowledge that some of the allegations in the pleading are "extraneous". They submit, however, that the superfluous allegations are not overly long, and simply provide background facts that may ultimately go to the quantum of damages.
[20] Although much of what is contained in the statement of claim may be factually true, it remains that the pleading lacks conciseness, and is replete with evidence. Rule 174 requires that "(e)very pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved". The plaintiffs were accordingly required to set forth material facts as clearly as possible, and to do so in a manner consistent with Rule 174, so that the defendant can know the nature of the specific wrongdoing and prepare a proper defence. They have failed to do so.
[21] By way of examples, it is unclear whether the plaintiffs' complaints relate to events going back to April 2001, when they applied for citizenship, or are limited to events that transpired in or about June 2004. Further, it is difficult to ascertain precisely who and what actions are under challenge. Although the named defendant is Her Majesty the Queen (the "Crown"), the plaintiffs have identified various officials in their pleading: The Honourable Judy Sgro, Minister of Citizenship and Immigration (paragraphs 12, 27); Citizenship and Immigration Canada (paragraphs 4, 13, 42, 43,); CIC Windsor office (paragraphs 13, 25, 30,44,); various unnamed officer(s) at CIC Windsor office (paragraphs 14 to 22; 23 and 24, 27, 30, 35, 38, 43, 44, 51 to 53, 56, 62);); the Crown (paragraphs 48, 49, 57, 58, 61); and the Crown and its authorized servants (paragraphs 59, 60, 62, 63, 64).
[22] In Ceminchuk v. Canada, [1995] F.C.J. No. 914, Prothonotary Hargrave concluded that a statement of claim should be struck where a defendant did not have fair notice of the case which it had to meet, and the Court could not regulate the proceedings. He stated at paragraph of his reasons for order:
The Statement of Claim consists of unconnected statements and conclusions which do not have the underpinning of material and necessary facts leading up to those statements and conclusions. The Plaintiff, in his Statement of Claim, says he has numerous documents on which he will rely...However, that is not the point: it is for the plaintiff to provide a Statement of Claim containing enough narrative, particulars and material facts not only to show a cause of action, but also both to allow the defendant to plead to the Statement of Claim and to allow the Court to properly regulate the proceedings.
[23] The same would apply in the present case. In addition, and more significantly, the statement of claim also contains ambiguous or inconsistent statements, and bald conclusions of law that are not supported by any facts.
[24] The plaintiffs allege that a CIC Windsor officer "related Ding's previous violation of Immigration Act (sic) with his application for citizenship" and delayed the processing of his application, and that this constituted cruel and unusual treatment and punishment. Although the plaintiffs go on and baldly allege that the CIC Windsor officer intentionally abused her authority, the required elements of the tort of abuse of authority have not been pleaded. The tort of abuse of public office is an intentional tort distinguished by a deliberate, unlawful conduct in the exercise of public functions, and an awareness that the conduct is unlawful and likely to injure the plaintiff: Odhavji Estate v. Woodhouse 2003 S.C.C. 69; Francoeur v. Canada (1994), 78 F.T.R. 109 (F.T.D.). Nowhere in the statement of claim do the plaintiffs clearly plead that the officer's conduct was unlawful, that she was aware that her conduct was unlawful, or that she was aware that the plaintiffs would likely be injured. The same can be said about the allegations of negligence.
[25] Further, there is no discernible cause of action based on the plaintiffs' allegations of breaches of sections 7, 12 and 15 of the Charter. The plaintiffs have failed to identify that government action is engaged in their complaint, or a breach of duty is owed to them. Moreover, their claim is erroneously based on the premise that Ding is entitled to Canadian citizenship. Yet, it is well established at law that there is noCharter based entitlement to Canadian citizenship: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.
[26] Section 7 of the Charter is breached by state action which deprives someone of life, liberty, or security of the person contrary to a principle of fundamental justice: Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. The plaintiffs simply plead, however, that the actions of a CIC Windsor officer were wilful, intentional, egregious, harmful and unlawful, which caused the plaintiffs to suffer damages, including physical, emotional, and psychological damages. However, the plaintiffs do not plead how government action has engaged one or more of the three protected interests that have been infringed, namely, life, liberty and security of the persons. Moreover, the plaintiffs' allegations are merely assertions with no factual basis.
[27] In order to engage section 12 of the Charter, the plaintiffs were required to show that the action involves some treatment or punishment by the state, and that such treatment is cruel and unusual. A mere prohibition on certain conduct, even if it results in cruel and unusual effects, does not qualify as treatment under s. 12. Punishment means a sanction imposed by the state as a corrective measure for the commission of a particular offence. The test for cruel and unusual is that the action must be "so excessive as to outrage standards of decency": Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. The plaintiffs have failed to plead any state action which could conceivably constitute treatment and punishment, or cruel and unusual treatment. The allegations are bare assertions of conclusions with no factual underpinnings.
[28] With respect to s.15(1) of the Charter, there are no facts pleaded to support a claim of discrimination based on race (other than a bald allegation), or any other ground of discrimination.
[29] As for obtaining a remedy under s. 24 of the Charter, a plaintiff must establish an adequate factual foundation that his Charter rights or freedoms have been infringed or denied. Furthermore, damages under subsection 24(1) of the Charter will only be awarded against government action if there is proof of elements such as bad faith, malice, grievous misconduct, gross negligence, wilful disregard or unreasonable of a government agent. The plaintiffs have not plead material facts or a cause of action that could sustain such a finding: Chrispen v. Prince Albert (City) Police Department, [1997] S.J. No. 360; Alford v. Canada (Attorney General), [1997] B.C.J. No. 251.
[30] Finally, the plaintiffs allege that they have suffered damages, but they fail to set out any material facts which support the bald allegations that the Crown's tortious conduct was the legal cause of the injuries they suffered. A conclusion of law pleaded without the requisite material facts is defective. I find that the monetary relief requested, in the amount of $11,000,000, is not based on any facts.
Conclusion
[31] I conclude that the statement of claim fails to concisely set out the material facts on which the purported causes of action are based. In addition, I am satisfied that the statement of claim, as pleaded, does not disclose any reasonable cause of action. The plaintiffs have not identified which legislation has engaged the Charter in this case, or how government action in the context of the Privacy Act or the Citizenship Act is engaged, or even how it was breached. I would therefore strike out the statement of claim, with leave to amend, if the plaintiffs are so advised.
Page: 13
ORDER
THIS COURT ORDERS that:
32. The statement of claim in this proceeding is hereby struck out, with leave to amend no later than 30 days from the date of this order.
33. The plaintiffs shall pay the defendant's costs of this motion in any event of the cause.
"Roger R. Lafrenière"
Prothonotary
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-1375-04
STYLE OF CAUSE: YUNHONG DING, SHIYANG DING by His Litigation Guardian YUNHONG DING, and DANIEL SHIWEN DING by His Litigation Guardian YUNHONG DING
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 18, 2004
REASONS FOR ORDER
AND ORDER BY: LAFRENIÈRE, P.
DATED: APRIL 4, 2005
APPEARANCES BY:
Yunhong Ding FOR THE PLAINTIFFS, ON THEIR OWN BEHALF
Margherita Braccio
Leena Jaakkimainen FOR THE DEFENDANT
SOLICITORS OF RECORD:
Yunhong Ding FOR THE PLAINTIFFS, ON THEIR OWN BEHALF
John H. Sims Q.C.
Deputy Attorney General of Canada
FOR THE DEFENDANT
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