Docket: T-1747-15
Citation:
2016 FC 1052
Ottawa, Ontario, September 16, 2016
PRESENT: The Honourable Mr. Justice Barnes
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BETWEEN:
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ZHENHUA WANG
AND CHUNXIANG YAN
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN, OXANA M. KOWALYK (ID MEMBER), SUSY KIM (ID MEMBER), IRIS KOHLER (ID
MEMBER), OFFICER O'HARA (CBSA OFFICER), HAL SIPPEL, ERIC BLENKARN, ANDREJ
RUSTJA, CBSA OFFICERS, ALL JOHN AND JANE DOE CBSA/CIC OFFICIALS UNKNOWN TO
THE PLAINTIFFS, INVOLVED IN THE ARREST, DETENTION AND CONTINUED DETENTION OF THE
PLAINTIFFS, LINDA LIZOTTE-MACPHERSON, PRESIDENT OF THE CBSA, MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, MINISTER OF CITIZENSHIP AND
IMMIGRATION, ATTORNEY GENERAL OF CANADA
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Defendants
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ORDER AND REASONS
[1]
On these motions the Defendants seek relief under
Rule 221 of the Federal Courts Rules, SOR/98-106, striking out the Statement
of Claim filed by the Plaintiffs in this action on the basis that it discloses
no viable cause of action, is scandalous, frivolous or vexatious, is an abuse
of the process of the Court and is barred by cause of action estoppel.
[2]
At the outset of argument the Plaintiffs conceded
that the claims asserted against the President of the Canada Border Services
Agency [CBSA], the Minister of Public Safety and Emergency Preparedness and the
Minister of Citizenship and Immigration [CIC] should be struck. In the result
the action is dismissed as against those parties. What remains for
determination is whether the claims against the remaining Defendants should be
struck and, if so, on what terms.
[3]
In order to apply the legal principles relied
upon by the parties it is necessary to consider the specific allegations in the
Plaintiffs’ 65 page Statement of Claim.
[4]
The Plaintiffs’ complaint arises out of their
arrest and detention at the hands of the CBSA on March 7, 2014. Among other
allegations the Plaintiffs say that they were wrongfully arrested and
unlawfully detained on the strength of false information that CBSA and CIC
officials either knowingly or negligently relied upon in the prosecution of the
Plaintiffs’ ongoing immigration detentions. Included in the claims against the
named and unnamed officials are allegations that they misrepresented evidence,
conspired to deprive the Plaintiffs of a fair hearing, and sought to punish the
Plaintiffs for bringing refugee claims.
[5]
Some representative passages concerning the
alleged conduct of the CBSA and CIC officers are set out below:
· The Arrest and Detention of
Plaintiffs in Canada
87. Prior
to, and up to being arrested by the CBSA on March 7th, 2014, the
Plaintiffs were subject to the following actionable conduct by the CBSA/CIC
officials:
(a) negligent
investigation in refusing to properly investigate the facts and evidence put
forward by the Plaintiffs; and relying solely on the false information provided
by those who defrauded the Plaintiffs, as well as officials of the People’s
Republic of China, and who were defendants in Ontario civil actions for that
fraud and other criminal acts, for which negligent investigation the CBSA/CIC
officers, and Her Majesty the Queen are liable, in that:
(i) the
officers owed a common-law and statutory duty of care to competently
investigate prior to arrest and detention;
(ii) the
officer(s) breached that duty of care; and
(iii) as
a result of that breach they caused the Plaintiffs compensable damages;
(b) that
the initial duty to competently investigate is owed to the present day, which
has been flagrantly breached and ignored by the named and unnamed CBSA/CIC
officers, notwithstanding more comprehensive and updated information and
evidence provided by Plaintiffs’ counsel;
(c) engaged
in abuse and excess of authority, and misfeasance of public office for the
facts set out above, by:
(i) refusing
disclosure undertaken and resisting disclosure due to the Plaintiffs;
(ii) misrepresenting
the nature and quality of the evidence against the Plaintiffs;
(iii) acting
in bad faith, and absence of good faith, continued to shift the grounds, for
continued detention against the Plaintiffs;
(iv) sought
the continued detention of the Plaintiffs, as punishment, because the
Plaintiffs made refugee claims, refugee claims necessitated by the actions of
the Defendant CBSA/CIC officials who have now, knowingly, exposed the
Plaintiffs to torture and/or death if returned to China;
(v) refusing
to properly investigate;
(d) conspired
to deprive the Plaintiffs of their statutory and constitutional rights, to be
free of arbitrary and unlawful arrest and detention as set out below in this
statement of claim;
(e) breached
the Plaintiffs’ constitutional right(s) to counsel; and
(f) otherwise
breached their rights under s. 7 of the Charter, to life,
liberty, and security of the person, in a matter inconsistent with the tenets
of fundamental justice, and contrary to s. 15 of the Charter, by
discriminating against the Plaintiffs based on their status as wealthy Chinese
nationals, with respect to their investigation, arrest, detention, and
continued detention of the Plaintiffs.
. . .
102. Prior
to, and during, the 1st detention review, the Defendant CBSA/CIC
officials at the hearing, engaged in the following actionable conduct:
(a) they
continued to engage in negligent investigation as set out above;
(b) they
engaged in abuse of process, and abuse and excess of authority, and misfeasance
of public office by:
(i) refusing
disclosure undertaken and owed to the Plaintiffs;
(ii) misrepresenting
the nature and quality of the evidence against the Plaintiffs’;
(iii) in
bad faith, and absence of good faith, shifted the grounds, for continued
detention against the Plaintiffs;
(iv) sought
the continued detention of the Plaintiffs, as punishment, because the
Plaintiffs made refugee claims, refugee claims necessitated by the actions of
the Defendant CBSA/CIC officials who have now, knowingly, exposed the Plaintiffs
to torture and/or death if returned to China;
(c) conspired
to deprive the Plaintiffs of a fair hearing, and further conspired to continue
the Plaintiffs’ unlawful and arbitrary arrest and detention by:
(i) engaging
in an agreement for the use of lawful and unlawful means, and conduct, the
predominant purpose of which is to cause injury to the Plaintiffs; and/or
(ii) engaging,
in an agreement, to use unlawful means and conduct, whose predominant purpose
and conduct directed at the Plaintiffs, is to cause injury to the Plaintiffs,
or the Defendants’ officials should know, in the circumstances, that injury to
the Plaintiffs, is likely to, and does result;
(d) continued
to breach the Plaintiffs’ right to counsel and effective right to assistance of
assistance of counsel;
(e) endangered
the lives of the Plaintiffs if ever returned to China; and
(f) otherwise
breached their rights under s. 7 of the Charter, to life,
liberty, and security of the person, in a matter inconsistent with the tenets
of fundamental justice, and contrary to s. 15 of the Charter, by
discriminating against the Plaintiffs based on their status as wealthy Chinese
nationals, with respect to their investigation, arrest, detention, and
continued detention of the Plaintiffs.
[6]
In this action the Plaintiffs also seek damages
from three members of the Immigration Division (collectively the ID Members)
for unlawfully maintaining the Plaintiffs’ detention in the context of three
detention reviews. Each of the impugned decisions was overturned by this Court
on judicial review. The Plaintiffs’ claims are based, in part, on an assertion
that ID Members Kowalyk, Kim and Kohler are liable in damages for failing to
follow the Federal Court orders that quashed the earlier detention review
decisions and for a variety of other adjudicative errors. Parts of the
Statement of Claim assert causes of actions in negligence and others assert
fraud and malice.
[7]
The material allegations made against the ID
Members are the following:
MEMBER
KOWALYK
106. In making her decision, on December 11th, 2014,
ID Member O.M. Kowalyk, which decision was made in bad faith, and absence of
good faith, the ID Member, with knowledge and intent and sole purpose of the
continued detention of the Plaintiffs, contrary to law, engaged in the following
conduct, and made the following baseless findings, with intention and
knowledge, in bad faith and absence of good faith, for the sole purpose of
continuing the unlawful detention of the Plaintiffs by:
(a) making substantive determinations with respect to the
strength and bona fides of the Plaintiffs’ refugee claims
which are outside the jurisdiction of the ID, and the exclusive jurisdiction of
the RPD (Refugee Protection Division) of the IRB;
(b) making rulings diametrically opposed to binding Federal
Court orders and judgments;
(c) knowingly misapplying the jurisprudence to the facts of
the Plaintiffs’ detention with the intention to continue the unlawful and
arbitrary detention of the Plaintiffs;
(d) refusing a release plan, which has been accepted as a
release plan, for those accused of (association with) terrorism in Canada;
(e) knowingly making capricious and perverse findings of
fact and law, with the knowledge and intention of continuing the detention of
the Plaintiffs; and
(f) doing all of the above set out in (a)-(e), based on
discrimination, contrary to s. 15 of the Charter , because the
Plaintiffs are wealthy Chinese nationals;
which conduct and
findings were contrary to the binding jurisprudence, and the knowledge,
experience, and expertise of the Member which spans just over 30 years as an
Adjudicator and ID member conducting detention reviews.
…
109.
The Plaintiffs state and the fact is that the
errors cited by the Federal Court were not “errors” by Member Kowalyk, but made
knowingly by her, in bad faith, and absence of good faith, intentionally
designed for the purpose of continuing the Plaintiffs’ unlawful and
unconstitutional detention.
…
MEMBER KIM
114. In making her decision, on April 2nd, 2015, ID
Member Susy Kim, which decision was made in bad faith, and absence of good
faith, the ID Member, with knowledge and intent and sole purpose of the
continued detention of the Plaintiffs, contrary to law, engaged in the
following conduct, and made the following baseless findings, with intention and
knowledge, in bad faith and absence of good faith, for the sole purpose of
continuing the unlawful detention of the Plaintiffs:
(a) making rulings diametrically opposed to binding Federal Court
orders and judgment of Justice Phelan and knowingly ignored and contradicted
Justice Phelan’s judgment on judicial review;
(b) making substantive determinations with respect to the
Plaintiffs’ refugee hearings which are outside the jurisdiction of the ID, and
the exclusive jurisdiction of the RPD (Refugee Protection Division) of the IRB;
(c) making rulings diametrically opposed to binding Federal Court
orders and judgments;
(d) knowingly misapplying the jurisprudence to facts of the
Plaintiffs’ detention with the intention to continue the unlawful and arbitrary
detention of the Plaintiffs;
(e) refusing a release plan, which has been accepted as a release
plan, for those accused of (association with) terrorism in Canada;
(f) knowingly making capricious and perverse findings of fact and
law, with the knowledge and intention of continuing the detention of the
Plaintiffs; and
(g) doing all of the above set out in (a)-(e), based on
discrimination, contrary to s. 15 of the Charter, because the
Plaintiffs are wealthy Chinese nationals;
which conduct and
findings were contrary to the binding Federal Court jurisprudence, including
that of the previous, successful judicial review, by the Federal Court, of the
previous detention review of Oxana M. Kowalyk.
...
116. The Member’s decision essentially adopted and rehashed the
decision of the previous ID Member (Kowalyk). This is referenced in Justice
Gagne’s decision, at paragraph 48, as quoted in the previous paragraph of this
Statement of Claim. The decision further ignores and flies in the face of the
judicial review conducted by Justice Phelan of ID Member Kowalski’s decision,
whereby ID Member Kim knowingly adopts Kowalyk’s errors to fly in the face of
the Federal Court decision quashing Kowalyk’s decision.
117. The Plaintiffs state and the fact is that the errors cited
by the Federal Court were not “errors” by Member Susy Kim, but made knowingly by her, in bad faith, and
absence of good faith, intentionally designed for the purpose of continuing the
Plaintiffs’ unlawful and unconstitutional detention.
…
MEMBER
KOHLER
143. In making her decision, which decision was made in bad
faith, and absence of good faith, the ID Member, Iris Kohler, with knowledge
and intent and sole purpose of the continued detention of the Plaintiffs,
contrary to law, engaged in the following conduct, and made the following
baseless findings, with intention and knowledge, in bad faith and absence of
good faith, for the sole purpose of continuing the unlawful detention of the
Plaintiffs:
(a) making rulings diametrically opposed to binding Federal
Court orders and judgments;
(b) making substantive determinations with respect to the
Plaintiffs’ refugee hearings which are outside the jurisdiction of the ID, and
the exclusive jurisdiction of the RPD (Refugee Protection Division) of the IRB;
(c) knowingly misapplying the jurisprudence to facts of the
Plaintiffs’ detention with the intention to continue the unlawful and arbitrary
detention of the Plaintiffs;
(d) refusing a release plan, which has been accepted as a
release plan, for those accused of (association with) terrorism in Canada;
(e) knowingly making capricious and perverse findings of fact
and law, with the knowledge and intention of continuing the detention of the
Plaintiffs; and
(f) doing all of the above set out in (a)-(e), with
discrimination, contrary to s. 15 of the Charter , because the
Plaintiffs are wealthy Chinese nationals;
which conduct and
findings were contrary to the binding Federal Court jurisprudence, including
that of previous, successful judicial reviews, by the Federal Court, of
previous detention reviews, by Justice Phelan and Justice Gagné, as set
out above.
...
146. Furthermore, ID Member Kolher’s decision, rehashes and
repeats the reasons of the previous two ID Members’ decisions, with a number of
paragraphs being extracted and merged from ID Member Kowalyk’s, and ID Member
Kim’s decision, which findings and conclusions knowingly, and with the sole
intent to continue the detention of the Plaintiffs, fly in the face of the
previous two Federal Court decisions of Justice Phelan and Justice Gagné.
147. The Plaintiffs state and the fact is that the errors cited
by the Federal Court were not “errors”
by Member Iris Kohler, but made knowingly by her, in bad faith, and absence of
good faith, intentionally designed for the purpose of continuing the
Plaintiffs’ unlawful and unconstitutional detention.
[8]
In addition to the above allegations, the
Statement of Claim includes prolix, unfocussed and generalized accusations of a
conspiracy to harm the Plaintiffs carried out by the named Defendants and other
unnamed government officials. It is not possible to tell whether the ID Members
are included in all of the conspiracy allegations but, in a few instances, they
are expressly identified. For the most part, these conspiracy allegations
simply repeat the earlier pleading of individualized bad faith set out above.
Below are the key conspiracy allegations specific to the ID Members:
(d) that
the ID members, Oxana Kowalyk, Susy Kim, Iris Kohler, have also done so in a
separate and overlapping conspiracy, by:
(i) making
substantive determinations with respect to the Plaintiffs’ refugee hearings
which are outside the jurisdiction of the ID, and the exclusive jurisdiction of
the RPD (Refugee Protection Division) of the IRB;
(ii) making
rulings diametrically opposed to binding Federal Court orders and judgments
particularly the Federal Court orders and judgment made with respect to the
Plaintiffs; on judicial review(s) of their detention;
(iii) knowingly
misapplying the jurisprudence to facts of the Plaintiffs’ detention with the
intention to continue the unlawful and arbitrary detention of the Plaintiffs;
(iv) refusing
a release plan, which has been accepted as a release plan, for those accused of
(association with) terrorism in Canada;
(v) knowingly
making capricious and perverse findings of fact and law, with the knowledge and
intention of continuing the detention of the Plaintiffs; and
(vi) doing
all of the above set out in (a)-(e), based on discrimination, contrary to s. 15
of the Charter, because the Plaintiffs are wealthy Chinese
nationals;
…
155. The Plaintiffs further state that actions of the named and
unnamed CBSA/CIC officers, in conjunction with the ID Members, at the behest
and false information from agents of the People’s Republic of China, and the
fraudsters Szeto and Chen, with the resulting unlawful and unconstitutional
detention, constitute torture and unusual treatment contrary to the Convention
Against Torture and Other Cruel or Unusual Treatment, and also
constitutes a crime against humanity contrary to, inter alia, s.
6 of the Crimes Against Humanity Act, as well as an offence under
the Criminal Code of Canada. The Plaintiffs state, and fact is,
that the named and unnamed officials, in furtherance of attempting to remove
the Plaintiffs to China, are acting as de facto agents for the
People’s Republic of China, and in fact are accessories, co-conspirators with
the attempt to deliver the Plaintiffs to torture, and unlawful imprisonment
and/or death. This conspiracy, and over-lapping conspiracies, and unlawful and
unconstitutional conduct, through the knowledge and willful conduct of the
above-noted officials, in bad faith and the absence of good faith, also grounds
the basis for civil and constitutional torts and liability.
…
158. The Plaintiffs further state that this entire process, is a
statutory and constitutional abuse of process, by way of disguised extradition,
on false information obtained from fraudsters and officials of a dictatorial
regime, with a refusal by Canadian officials to properly and competently
investigate, to remove at the request of a regime that engages in inter
alia, torture, without the procedural and substantive safeguards of the
Extradition Act, which the named and unnamed officials, and ID
Members, know run contrary to the Royal Commission Inquiry conducted with
respect to Maher Arar, and its report and recommendations, as well as the
Ontario Court of Appeal decision (leave to the SCC denied), finding it
constitutionally impermissible to extradite based on information obtained by
torture, as set out in USA v. Kadr, which decision is a document
referred to in the pleadings herein.
[9]
In one concluding passage, the Statement of
Claim asserts that the ID Members, among others, were acting “as de facto agents of the People’s Republic of
China, in what amounts to a disguised and baseless extradition” (see
para 156 (vi)).
I.
Analysis
[10]
Rule 221 of the Federal Courts Rules
applies to these motions and provides for relief on the following basis:
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STRIKING OUT
PLEADINGS
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RADIATION D’ACTES DE PROCÉDURE
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221 (1) On motion,
the Court may, at any time, order that a pleading, or anything contained
therein, be struck out, with or without leave to amend, on the ground that it
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221 (1) À tout moment, la Cour peut, sur requête, ordonner la
radiation de tout ou partie d’un acte de procédure, avec ou sans autorisation
de le modifier, au motif, selon le cas :
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(a) discloses no reasonable cause of action or defence, as the
case may be,
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a) qu’il ne révèle
aucune cause d’action ou de défense valable;
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(b) is immaterial
or redundant,
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b) qu’il n’est pas pertinent ou qu’il est redondant;
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(c) is scandalous,
frivolous or vexatious,
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c) qu’il est scandaleux, frivole ou vexatoire;
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(d) may prejudice
or delay the fair trial of the action,
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d) qu’il risque de nuire à l’instruction
équitable de l’action ou de la retarder;
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(e) constitutes a
departure from a previous pleading, or
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e) qu’il diverge d’un acte de procédure antérieur;
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(f) is otherwise an
abuse of the process of the Court,
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f) qu’il constitue autrement un abus de procédure.
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and may order the
action be dismissed or judgment entered accordingly.
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Elle peut aussi ordonner que l’action soit rejetée ou qu’un
jugement soit enregistré en conséquence.
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(2) No evidence
shall be heard on a motion for an order under paragraph (1)(a).
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(2) Aucune preuve n’est admissible dans le cadre d’une requête
invoquant le motif visé à l’alinéa (1)a).
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[11]
The Defendants all contend that the Statement of
Claim discloses no cause of action known to law and is scandalous, frivolous
and vexatious. They also argue that a markedly similar Statement of Claim was
struck out by the Ontario Superior Court as disclosing no viable cause of
action, thus rendering this proceeding an abuse of process by relitigation or
subject to cause of action estoppel. The Immigration Division members also rely
on the immunity that is afforded to them by section 156(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
II.
The claims against the ID Members
[12]
There is no question that the claims advanced
against the ID Members in the performance of their adjudicative duties are
protected by a strongly worded immunity provision. Section 156 of IRPA states:
156. Immunity and no
summons – The following rules apply to the Chairperson and the members in
respect of the exercise or purported exercise of their functions under this
Act:
(a) no criminal or civil proceedings lie against them for anything
done or omitted to be done in good faith; and
(b) they are not competent or compellable to appear as a witness in
any civil proceedings.
[13]
Mr. Galati opposes the motion to strike the
claims against the ID Members on the basis that the Court must take the pleaded
facts as provable. He asserts that it is only where it is plain and obvious
that a pleading is bad that it can be struck: see, for instance, Hunt v
Carey Canada Inc, [1990] 2 S.C.R. 959 at page 980, 74 DLR (4th) 321.
Motions to strike under Rule 221 of the Federal Courts Rules are, of
course, also subject to Rule 174 requiring that every pleading contain “a concise statement of the material facts on which the party
relies”.
[14]
While I accept that, on a motion to strike, the
Court must take the pleaded facts to be provable and should only strike in the
clearest of cases, at the same time not every legal theory that can be imagined
by the creative legal mind must be entertained. For instance, I do not agree
that this Court must accept, as potentially viable, fanciful interpretations of
the scope of immunity afforded to the ID Members by section 156 of IRPA. An
example of such an argument is the Plaintiffs’ contention that they are
entitled to pursue a cause of action for the negligent enforcement of a
judicial decree (i.e., the Federal Court judgments). The Plaintiffs
advance this claim on the strength of the decision in Holland v Saskatchewan,
2008 SCC 42, [2008] 2 S.C.R. 551. That case, of course, involved an allegation of
negligent implementation of a judicial decree and not negligent adjudication.
In the face of the broad immunity created by section 156, it is plain and
obvious that this allegation and any similar allegation could not, in the
absence of pleaded material facts bearing on bad faith, possibly succeed.
[15]
The same can be said of the allegations
concerning ostensible errors made by the ID Members. The Statement of Claim
does not survive a motion to strike by the pleading of a series of supposed
errors followed by a bare assertion of bad faith and conspiracy. Indeed, all of
the conspiracy allegations are purely speculative and improper. To assert
without any factual foundation that the ID Members were engaged in a conspiracy
to harm the Plaintiffs with the CBSA and CIC officials and were acting as de
facto agents of the Chinese authorities is particularly scandalous and
improper. What the record actually discloses is that the ID Members produced
thoughtful and thorough decisions. This Court found some discrete reviewable
errors in their decisions but identified nothing blameworthy and returned the
cases for redetermination. The remedy for adjudicative error lies in judicial
review and not in a collateral action seeking damages.
[16]
What the Court must still consider is whether
some remainder of the Statement of Claim would, if proven, be sufficient to
escape the confines of section 156. To determine this, it is necessary to
consider the basic principles with respect to pleadings. The fundamental
purpose and rule of pleadings were discussed by Justice Eric Bowie in Zelinski
v the Queen, [2002] 1 CTC 2422, [2002] DTC 1204 (TCC) and recently endorsed
by Justice Wyman Webb in Beima v Canada, 2016 FCA 205, [2016]
FCJ No 907 (QL):
4 The purpose of pleadings is to
define the issues in dispute between the parties for the purposes of
production, discovery and trial. What is required of a party pleading is to set
forth a concise statement of the material facts upon which she relies. Material
facts are those facts which, if established at the trial, will tend to show
that the party pleading is entitled to the relief sought …
5 The applicable principle is stated
in Holmsted and Watson [Ontario Civil Procedure, Vol. 3, pages 25-20 to 25-21]:
This is the rule of pleading: all of
the other pleading rules are essentially corollaries or qualifications to this
basic rule that the pleader must state the material facts relied upon for his
or her claim or defence. The rule involves four separate elements: (1) every
pleading must state facts, not mere conclusions of law; (2) it must state
material facts and not include facts which are immaterial; (3) it must state
facts and not the evidence by which they are to be proved; (4) it must state
facts concisely in a summary form.
[17]
The question is therefore whether the Statement
of Claim contains any material factual allegations that could support a finding
of bad faith on the part of any of the ID Members in the discharge of their
adjudicative functions. In this context, bad faith requires proof of deliberate
dishonest conduct by each of the ID Members in carrying out their detention
review responsibilities.
[18]
An assessment of the Statement of Claim must
begin with an appreciation of the legal principles that distinguish between
speculative or conclusory allegations and those that are sufficiently
particularized to be subjected to further judicial scrutiny (i.e.,
material facts that are capable of supporting a potentially viable cause of
action). This distinction is discussed by Justice David Stratas in Merchant
Law Group v Canada Revenue Agency, 2010 FCA 184, 321 DLR (4th) 301 [Merchant
Law] in the following passage:
[34] I agree with the Federal Court’s
observation (at paragraph 26) that paragraph 12 of the amended statement of
claim “contains a set of conclusions, but does not provide any material facts
for the conclusions.” When pleading bad faith or abuse of power, it is not
enough to assert, baldly, conclusory phrases such as “deliberately or
negligently,” “callous disregard,” or “by fraud and theft did steal”: Zundel
v. Canada, 2005 FC 1612, 144 A.C.W.S. (3d) 635; Vojic v. Canada (M.N.R.),
[1987] 2 C.T.C. 203, 87 D.T.C. 5384 (F.C.A.). “The bare assertion of a conclusion
upon which the court is called upon to pronounce is not an allegation of
material fact”: Canadian Olympic Association v. USA Hockey, Inc. (1997),
74 C.P.R. (3d) 348, 72 A.C.W.S. (3d) 346 (F.C.T.D.). Making bald, conclusory
allegations without any evidentiary foundation is an abuse of process: AstraZeneca
Canada Inc. v. Novopharm Limited, 2010 FCA 112 at paragraph 5. If the
requirement of pleading material facts did not exist in Rule 174 or if courts
did not enforce it according to its terms, parties would be able to make the
broadest, most sweeping allegations without evidence and embark upon a fishing
expedition. As this Court has said, “an action at law is not a fishing
expedition and a plaintiff who starts proceedings simply in the hope that
something will turn up abuses the court’s process”: Kastner v. Painblanc
(1994), 58 C.P.R. (3d) 502, 176 N.R. 68 at paragraph 4 (F.C.A.).
[35] To this, I would add that the tort
of misfeasance in public office requires a particular state of mind of a public
officer in carrying out the impunged action, i.e., deliberate conduct
which the public officer knows to be inconsistent with the obligations of his
or her office: Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003
SCC 69 at paragraph 28. For this tort, particularization of the allegations is
mandatory. Rule 181 specifically requires particularization of allegations of
“breach of trust,” “wilful default,” “state of mind of a person,” “malice” or
“fraudulent intention.”
[19]
More recently, Justice Michael Manson discussed
the need for particulars when pleadings allege fraud or malice. His comments in
Tomchin v Canada, 2015 FC 402, 332 CRR (2d) 64 [Tomchin] are
particularly apt on this motion:
[21] In order to strike a pleading on the
ground that it does not disclose a reasonable cause of action, those
allegations that are properly pleaded as concise material facts and are capable
of being proved must be taken as true (Hunt v Carey Canada Inc, [1990] 2
SCR 959; Federal Court Rules, Rule 174). However, that rule does not
apply to allegations based on assumptions and speculation (Operation
Dismantle Inc v Canada, [1985] 1 S.C.R. 441 at para 27).
[22] As well, any pleading of
misrepresentation, fraud, malice or fraudulent intent must provide particulars
of each and every allegation; bald allegations of bad faith, ulterior motives
or ultra vires activities is both “scandalous, frivolous and vexatious”,
and an abuse of process of this Court (Federal Court Rules, Rule 191; Merchant
Law Group v Canada (Revenue Agency), 2010 FCA 184 at paras 34-35).
...
[38] Throughout the Statement of Claim,
the Plaintiff alleges bad faith and ulterior motives on the part of the
Defendants. However, I agree with the Defendants that the allegations are
purely speculative and none of the statements are supported by the facts as
pleaded. What the facts show is nothing other than legitimate, intra vires
reasons for the Plaintiff’s interview, investigation and detention by CBSA.
…
[47] The pleading as a whole is replete
with opinion and conclusory statements, devoid of the concise, material facts
needed to support a viable cause of action. I agree with the Defendants that
the Statement of Claim appears to have been filed for collateral purposes, in
the hopes that a fishing expedition may yield some claim of substance that may
somehow support the Plaintiff’s desire for a remedy against the Defendants. His
position is simply wrong (Kastner v Painblanc, [1994] FCJ No 1671 at
para 4 (FCA)).
[20]
The allegations made by the Plaintiffs against
the ID Members in this proceeding are bad for the same reasons identified in
the Merchant Law and Tomchin decisions noted above. The
allegations of bad faith and malice are merely conclusions unsupported by any
material facts. The allegation of a conspiracy in concert with the People’s
Republic of China is particularly troublesome. In the absence of any supporting
facts it is a scandalous allegation and, in that form, should never have been
pleaded.
[21]
I can only conclude from the total absence of
particulars that the claims made against the ID Members were solely intended to
embarrass those Defendants for making detention rulings adverse to the
Plaintiffs’ interests. In the result, all of the claims against the ID Members
are struck out without leave to amend and the action is dismissed as against
each of them.
[22]
The ID Members are entitled to their costs in
the action. Having regard to the scandalous nature of the allegations made
against them, an increased award of costs is justified. These Defendants are
awarded $5,500 payable within 30 days by the Plaintiffs, jointly and severally.
III.
The claims against the CBSA and CIC
[23]
One of the principal arguments advanced on
behalf of the CBSA and CIC Defendants is that this action is an abusive
relitigation of a very similar cause of action dismissed by the Ontario
Superior Court of Justice. To fairly address this argument it is necessary to examine
the scope and disposition of that earlier action.
[24]
The Statement of Claim issued on behalf of the
Plaintiffs in the Ontario Superior Court of Justice named, among other parties,
CIC and the CBSA as Defendants. That Statement of Claim sets out, almost
verbatim, much of the factual history contained in the Federal Court Statement
of Claim (see for example paras 16-18 and 76-99).
[25]
Nevertheless, the specific allegations directed
at the conduct of CIC and the CBSA in the Ontario pleading were limited to the
following:
62. CIC and CBSA knew, or ought to have
known, at the time that the application forms were submitted by Chen and Szeto,
that Chen and Szeto were not licensed or approved immigration consultants or
professionals, and that they were submitting the application documents contrary
to the IRPA s. 91(1).
63. Furthermore, subsequent to Ms. Yan
and Mr. Wang’s discovery that Chen and Szeto were not licensed to submit
immigration applications, and subsequent to their discovery of significant
other misrepresentations and frauds perpetuated against them by Chen and Szeto,
CIC and CBSA were notified by letters dated, respectively, January 27, 2014 and
February 5, 2014 from counsel for Ms. Yan and Mr. Wang, specifically
advising CIC and CBSA that:
(a) Ms. Yan
and Mr. Wang had discovered that Chen and Szeto were not licensed or
approved immigration consultants and were not licensed or qualified to complete
and submit applications to Canada Immigration on their behalf;
(b) Ms. Yan
and Mr. Wang had reason to believe that Chen and Szeto had provided
incorrect information on the applications;
(c) Chen
and Szeto had threatened repeatedly to make false reports regarding Ms. Yan
and Mr. Wang to CBSA and Canada Immigration in the course of continued
attempts at extorting funds from Ms. Yan and Mr. Wang. Because of the
legal actions and criminal complaints made by Ms. Yan and Mr. Wang
against Chen and Szeto, Ms. Yan and Mr. Wang had reason to believe that
Chen and Szeto had made and were continuing to make false allegations to CBSA
and CIC against Ms. Yan and Mr. Wang; and
(d) Ms. Yan
and Mr. Wang were requesting copies of all application documents submitted
on their behalf by Chen and Szeto.
64. Ms. Yan and Mr. Wang have
to date received no response whatsoever from CBSA or CIC to the January 27th
and February 5th letters.
65. Therefore, in addition to the fact
that CIC and CBSA should have known that Chen and Szeto were in breach of s.
91(1) of the IRPA at the time of submission of the purported application, CIC
and CBSA should certainly have known, and commenced a specific investigation
and consulted with Ms. Yan and Mr. Wang’s counsel, after receipt of
their counsel’s February notice letter.
66. Further, having received the latest
application in or about 2013, and possibly previous applications from Chen and
Szeto prior to that time, and then the February notification from counsel for
Yan and Mr. Wang, CBSA should then have known that they were relying upon
documents, the preparation of which were a criminal offence by Chen and Szeto
contrary to s. 91(1) of the IRPA.
67. Knowing that the preparation of the
application documents was a criminal offence by third parties, the CBSA should not
have instructed its counsel to rely upon information on those documents to
continue the detention and deny the freedom of Ms. Yan and Mr. Wang.
68. Chen and Szeto were not licensed or
approved immigration consultants, and they were submitting the application
documents contrary to the IRPA s. 91(1).
…
74. The CBSA’s arrest disclosure
referred to “tips” that they received in respect of Ms. Yan and Mr. Wang.
75. Ms. Yan and Mr. Wang
believe that their concerns, set out in their counsel’s February 2014 letter to
CIC and CBSA, were correct and that Chen and Szeto made false report to the
Canadian immigration agencies including CIC and CBSA, as well as false reports
to the embassy, national government, and provincial government of China, as
well as false reports to the Dominican Republic, all falsely claiming
improperly actions and activities by the Plaintiffs.
…
109. The plaintiffs state pleading that
they have suffered damages as a result of the Citizenship and Immigration
Canada and Canada Border Services Agency failure:
(a) to
identify and take preventative steps because, at the time that the application
forms were submitted by Chen and Szeto, Chen and Szeto were not licensed or
approved immigration consultants or professionals, and that they were submitting
the application documents contrary to the IRPA s. 91(1);
(b) to
take preventative action, including contacting counsel for the plaintiffs, upon
receipt of counsel’s letter in February 2014 warning that Chen and Szeto were
not licensed and may have file false information regarding the plaintiffs;
(c) to
refrain from using documents prepared by Chen and Szeto and relying upon “tips”
from Chen and Szeto as a part of the basis for investigation and detention of
the plaintiffs; and
(d) to
refrain from CBSA instructing its Minister’s Counsel to rely on documents
prepared by Chen and Szeto in submissions at Detention Hearings to continue the
detention of the plaintiffs.
[26]
Not surprisingly, the Attorney General of Canada
moved to strike the Ontario Statement of Claim as it related to CIC and the
CBSA on the basis that it disclosed no cause of action and was otherwise
frivolous, vexatious and an abuse of the Court process. On the day the motion
was to be heard, the Plaintiffs’ then counsel (not Mr. Galati) requested
and obtained an adjournment based, in part, on an argument that “new facts” had emerged “which
inform the Plaintiffs’ case against the moving Defendants”. Plaintiffs’
counsel also advised the Court that he intended to amend the Statement of Claim.
Thrown-away costs were awarded to the Attorney General in the amount of
$2,500.00, payable within 30 days.
[27]
The Attorney General brought the motion to
strike back before the Court on June 17, 2015. Plaintiffs’ counsel failed to
file any responding material and seems not to have opposed the motion. Indeed,
in an apparent effort to avoid the motion to strike, the Plaintiffs filed a Notice
of Discontinuance on June 11, 2015. Justice Edward Belobaba described the
filing of the Notice of Discontinuance as “improper”
and of no effect. He went on to strike the claims against the Attorney General
without leave to amend on the following basis:
The AG Canada’s motion to strike St. of Claim
as against AG Canada (CIC & CBSA) w/o leave to amend is granted. Unopposed.
No reasonable cause of action is created by not investigating s 91 IRPA
breaches. Ps have not alleged insufficient legal basis for detention. I agree
with and adopt AG’s submissions in paras. 35-37, 38-40 and 41-43, 45 and 50 of
AG’s Factum.
[28]
By reference Justice Belobaba adopted the
following points from the Attorney General’s written arguments:
35. There
is nothing in IRPA that imposes a duty on CIC or CBSA to investigate or
take action against anyone who contravenes s. 91 by giving representation or
advice in an immigration proceeding or application for consideration.
36. Similarly,
s. 91(9) of IRPA, which provides that “[e]very person who contravenes
subsection (1) commits an offence...” does not impose any duty on CIC or CBSA
to investigate or penalize every person who breaches s. 91.
37. The
Plaintiffs have cited no authority to show any duty on CIC or CBSA to
investigate or penalize all persons who may have breached s. 91 of IRPA.
They have also not pointed to any rationale for imposing such a duty on CIC or
CBSA or indicated how it would be possible or feasible to perform such a duty.
2) No cause of action created by not investigating Ms. Chen
and Mr. Szeto
38.
The Plaintiffs seem to suggest that CIC or CBSA should have investigated Ms. Chen
and Mr. Szeto after the Plaintiffs’ counsel wrote letters of January 27,
2014, and February 5, 2014 advising that these persons breached s. 0091.
This allegation fails to show any cause of action as the Plaintiffs cannot, by
their counsel’s letters, create a duty on CIC and CBSA to investigate persons
who allegedly breach s. 91(1), where no such duty exists in law.
Claim, paras 63, 65,
68, 109(b), [Motion Record of the AG]
39. The
Plaintiffs have not explained how their counsel’s letters could mandate CIC or
CBSA to investigate or prosecute Ms. Chen or Mr. Szeto for breaching
or allegedly breaching s. 91, absent any legislative duty, court order or other
legal requirement to do so.
40. Further,
the Plaintiffs do not allege that their detention by CBSA is unlawful, i.e. that
there are insufficient legal bases for the detention. As such, they fail to
show any reasonable cause of action regarding their detention.
3) Plaintiffs have not alleged insufficient legal basis
for detention
Plaintiffs’
detention currently based on flight risk
41. The
Plaintiffs assert a claim for “Special damages in the amount of $10,000.00 of
each day of detention of the plaintiffs by the defendant Canada Border Services
Agency”, but nowhere in the Claim do the Plaintiffs allege that their detention
is unlawful.
Claim, para 1 (o),
[Motion Record of the AG]
42. It
seems that the Plaintiffs are seeking damages for time spent in lawful
detention. However, this does not give rise to any reasonable cause of action.
43. Further,
the Plaintiffs implicitly admit that their detention is lawful, as they assert
that “the essence of its [CBSA’s] current claims against the Plaintiffs”
include “the flight risk and misrepresentation issues”. While the Plaintiffs
say that these “claims” are “in any event, incorrect”, they do not indicate any
reason why they are not flight risks. In addition, they do not allege that the
flight risk issue was caused by Ms. Chen or Mr. Szeto. In fact, their
allegations indicate the contrary.
Claim, para 45,
[Motion Record of the AG]
...
45. The
Plaintiffs’ allegations indicate that they are foreign nationals who are
detained in Canada as flight risks, i.e., being unlikely to appear for
examination, an admissibility hearing or removal from Canada. Since they state
that “flight risk” is part of the essence of CBSA’s claims against them, and
flight risk in these circumstances is sufficient for their lawful detention by
the Immigration Division, the mere fact that they are detained or that they
disagree with the flight risk finding does not create a reasonable cause of
action.
...
50. As
such, the Plaintiffs fail to show any cause of action against the AG (on behalf
of CIC or CBSA) regarding their detention, or regarding the use or reliance of
alleged incorrect information submitted by Mr. Chen and Mr. Szeto, as
the Plaintiffs’ allegations indicate that CIC or CBSA relied on information
other than that received from Ms. Chen and Mr. Szeto, to lawfully
detain them as flight risks, pursuant to IRPA.
[29]
It is quite clear to me that Justice Belobaba effectively
dismissed the Plaintiffs’ claims against the CIC and the CBSA alleging a
negligent investigation, albeit in relation to specified deficiencies
pertaining to the supposed fraudsters, Szeto and Chen. To the extent that the Statement
of Claim purported to assert a claim to damages from the Plaintiffs’ detention,
that, too, was dismissed.
[30]
I have some reservations about globally applying
abuse of process principles to this motion to strike based on the Ontario
Superior Court’s dismissal endorsement. That proceeding was supported by a few
vague allegations of negligent investigation by unnamed officials in the CBSA
and CIC, but the Statement of Claim did not include allegations against the ID
Members named in this action nor did it assert that government officials acted
or conspired to present false evidence to the Immigration Division for the
purpose of harming the Plaintiffs. In addition to the absence of a clear
overlap of pleaded issues, it is also not entirely clear what the Ontario
Superior Court decided beyond the finding that no cause of action based on an
alleged negligent investigation could be made out. It is also of some
significance that the Ontario action was dismissed on a motion to strike that
was unopposed. Finally, some of the allegations in the Federal Court Statement
of Claim post-date the dismissal of the Ontario action. Those after-the-fact
allegations cannot be struck based on the argument that a party is required to
put its best case forward and cannot selectively plead or split its case. Alleged
events that have not yet occurred cannot be reasonably anticipated and pleaded.
Given these issues I am not prepared to strike the entire Statement of Claim
based on abuse of process by relitigation principles. That is not to say,
however, that all of what has been pleaded in this action is permissible in the
face of the dismissal of the Ontario action. In my view, the Plaintiffs are not
entitled to replead their allegations concerning supposedly negligent
investigations by the CBSA, CIC or any of their officials. The Ontario Superior
Court found those allegations could not support a viable cause of action and
the Plaintiffs are not legally entitled to relitigate that issue in this Court.
To do so is an abuse of process: see Toronto (City) v CUPE, Local 79,
2003 SCC 63 at para 37, [2003] 3 S.C.R. 77. Those allegations are accordingly
struck from the Statement of Claim without leave to amend.
[31]
There is not much of any substance that remains
in the Statement of Claim, and what does remain is devoid of material facts.
Prolixity, repetition and the bare pleading of a series of events are not
substitutes for the requirement that a defendant know what is being factually
and legally alleged so that a proper answer and defence can be stated. What is
always required is a recitation of material facts that can support an arguable cause
of action. Nevertheless, there are some generalized allegations that CBSA and
CIC officials knowingly fabricated a case against the Plaintiffs in order to
keep them in custody. In theory, a viable cause of action for misfeasance in
public office could arise, provided that there are sufficient material facts
pleaded to support it. Here there are none and the remaining portions of the
Statement of Claim are struck out for that reason and because what little remains
is unintelligible. The Plaintiffs will, however, have leave to file a fresh
Statement of Claim provided that it contains sufficient material particulars to
support a cause of action for misfeasance in the prosecution of a case for the
detention of the Plaintiffs.
[32]
These Defendants have been successful on their
separate motions and are entitled to their costs which I fix at $3,500.00.
These costs are similarly payable jointly and severally by the Plaintiffs
within 30 days.
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