Docket: T-1381-16
Citation:
2017 FC 1092
Ottawa, Ontario, December 4, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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MUBEEN FATIMA
NAQVI
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Plaintiff
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and
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HER MAJESTY THE
QUEEN
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THE ATTORNEY
GENERAL OF CANADA
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Defendants
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JUDGMENT AND REASONS
I.
Background
[1]
This is an appeal brought under Rule 51(1) of
the Federal Courts Rules, SOR/98-106, from a prothonotary’s order
dismissing the Defendants’ motion to strike out Mubeen Fatima Naqvi’s amended
statement of claim.
[2]
Ms. Naqvi pleads that, in 2013, an unnamed visa
officer in Pakistan refused her sponsorship application on the basis that her
marriage was not genuine. Ms. Naqvi’s claim asserts that, in making the
decision, the visa officer breached her rights under sections 2(a) and
15 of the Canadian Charter of Rights and Freedoms. She seeks over a
million dollars in damages under section 24(1) of the Charter.
[3]
This is the Defendants’ second attempt to strike
out Ms. Naqvi’s claim under Rule 221(1) as disclosing no reasonable cause of
action. A prothonotary of this Court allowed the first motion in part, granting
Ms. Naqvi leave to clarify her statement of claim by amendment. The Defendants’
second motion to strike the amended claim was dismissed by the prothonotary,
who found that the amended claim was not bereft of any chance of success.
[4]
On this appeal, the Defendants again argue that
Ms. Naqvi has not pleaded the requisite material facts to ground her claim. For
the reasons that follow, I agree that Ms. Naqvi’s amended claim discloses no
reasonable cause of action and cannot be cured by further amendment. Therefore,
the order of the prothonotary dated June 9, 2017 shall be set aside and replaced
with a judgment allowing the Defendants’ motion to strike Ms. Naqvi’s claim in
its entirety, without leave to amend.
II.
Summary of the Amended Statement of Claim
[5]
In my view, the material facts pleaded in Ms.
Naqvi’s amended statement of claim, which, for the purposes of a motion to
strike, must be read generously and assumed to be true (Apotex Inc v Allergan,
Inc, 2011 FCA 134 at para 2), may be summarized as follows:
1.
Ms. Naqvi is a Canadian citizen who is a visible
minority, wears the hijab in public, and follows the Shia Ithna-Ashariyya
Islamic faith. She married her husband, Ali Taqi Syed, on October 2, 2010 in
Pakistan. The wedding reception and ceremonies were conducted in accordance with
the religious beliefs of Ms. Naqvi and her family, meaning that (i) Ms.
Naqvi wore a golden satin gown, specially made by her mother, and no visible
makeup; (ii) Ms. Naqvi’s bridal henna was only applied to the inside of her
palms and intended only for her husband to see; and (iii) Ms. Naqvi and
her husband remained modest and reserved in the presence of their family and
friends.
2.
Ms. Naqvi filed a sponsorship application for
her husband in June 2011, which included colour photographs of the wedding
reception and phone records intended as proof of contact. Some of Ms. Naqvi’s
bridal henna was visible in one of the pictures submitted. The phone records indicated
calls from Ms. Naqvi’s home phone number, which was registered under her
mother’s name.
3.
In April 2013, the visa officer refused Ms.
Naqvi’s sponsorship application, determining that the marriage was not genuine
because: (i) Ms. Naqvi was wearing a non-festive outfit with minimal jewelry
and makeup, (ii) Ms. Naqvi did not have customary patterns of henna on her
body, (iii) the photographs submitted showed limited comfort between Ms. Naqvi
and her husband, and (iv) the phone records submitted were not registered in
Ms. Naqvi’s name. Ms. Naqvi was not put on notice of these concerns. The visa
officer refused to contact Ms. Naqvi or her husband or request an interview.
4.
A different visa officer, who conducted a
preliminary review of the sponsorship file, determined that Ms. Naqvi’s family
was religious, and did not take issue with the greeting cards, envelopes, or
phone bills furnished in support of Ms. Naqvi’s application.
5.
The Immigration Appeal Division of the Refugee
Board reviewed the same photos that were before the visa officer and observed
that Ms. Naqvi’s wedding dress was “beautiful”
and “colourful”.
6.
The visa officer had certain expectations of a
genuine marriage which were narrow minded. The visa officer expected Ms. Naqvi
to bare her arms, contrary to her religious beliefs. The visa officer would
have allowed Ms. Naqvi’s application if she had not been adhering to her
religious beliefs.
7.
Ms. Naqvi was shocked and intimidated by the
visa officer’s decision and did not seek redress until her husband received his
permanent residence card for fear of administrative retribution.
8.
There was an unreasonable delay from the date of
the visa officer’s refusal in April 2013 to the date Ms. Naqvi’s husband
received his visa in January 2016. This delay disrupted Ms. Naqvi and her husband’s
plans for him to pursue his medical studies in Canada, and caused prejudice to
Ms. Naqvi. There were further administrative incompetencies that exacerbated
Ms. Naqvi’s anxiety.
9.
Ms. Naqvi experienced continuous anxiety over
her separation from her husband, who remained in Pakistan where he was at risk
of being targeted and killed. Ms. Naqvi suffered psychological trauma,
along with attendant adverse impacts on her studies and financial well-being.
It was reasonably foreseeable that Ms. Naqvi would incur financial costs
and endure emotional distress and mental anguish as a result of the visa
officer’s refusal and subsequent administrative delay.
III.
Analysis
A.
Standard of Review
[6]
A decision to strike a pleading is discretionary
(Elbit Systems Electro-Optics Elop Ltd v Selex ES Ltd, 2016 FC 1129 at
para 15). A prothonotary’s discretionary order attracts the same standard of
review on appeal as do similar orders by motions judges (Hospira Healthcare
Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215 at para 69 [Hospira]).
Therefore, a prothonotary’s discretionary order should only be interfered with
by this Court when it is incorrect in law, or when it is based on a palpable
and overriding error in regard to the facts (Hospira at para 64).
[7]
In my view, the prothonotary erred in law by not
identifying and addressing all the required elements of Ms. Naqvi’s pleaded
cause of action (see Tuccaro v Canada, 2014 FCA 184 at para 22). The
facts pleaded in Ms. Naqvi’s amended statement of claim do not satisfy the
requisite elements of an action for section 24(1) damages for breaches of the Charter
by an administrative decision-maker, because Ms. Naqvi has not pleaded
that the visa officer’s decision was motivated by intentional prejudice, nor
could the facts that are pleaded, if proven, support such a finding.
B.
Legal Principles on a Motion to Strike
[8]
To survive the Defendants’ motion to strike, Ms.
Naqvi’s amended claim must have set out all the necessary elements of a
recognized cause of action, as well as sufficient material facts to support
each of those elements (Al Omani v Canada, 2017 FC 786 at para 20).
[9]
The requirement for sufficient facts is further
reflected in Rule 174, pursuant to which every pleading must contain a
concise statement of material facts relied upon. As the Federal Court of Appeal
recently confirmed in Mancuso v Canada (National Health and Welfare),
2015 FCA 227 [Mancuso], sufficient material facts are the foundation of
a proper pleading, which is, in turn, fundamental to the trial process:
17 [Sufficient material facts are]
the foundation of a proper pleading. If a court allowed parties to plead bald
allegations of fact, or mere conclusory statements of law, the pleadings would
fail to perform their role in identifying the issues. The proper pleading of a
statement of claim is necessary for a defendant to prepare a statement of
defence. Material facts frame the discovery process and allow counsel to advise
their clients, to prepare their case and to map a trial strategy. Importantly,
the pleadings establish the parameters of relevancy of evidence at discovery
and trial.
18 There is no bright line between
material facts and bald allegations, nor between pleadings of material facts
and the prohibition on pleading of evidence. They are points on a continuum,
and it is the responsibility of a motions judge, looking at the pleadings as a
whole, to ensure that the pleadings define the issues with sufficient precision
to make the pre-trial and trial proceedings both manageable and fair.
19 What constitutes a material fact
is determined in light of the cause of action and the damages sought to be
recovered. The plaintiff must plead, in summary form but with sufficient
detail, the constituent elements of each cause of action or legal ground
raised. The pleading must tell the defendant who, when, where, how and what
gave rise to its liability.
20 The requirement of material facts
is embodied in the rules of practice of the Federal Courts and others: see Federal
Courts Rules, Rule 174; Alta. Reg. 124/2010, s. 13.6; B.C. Reg. 168/2009,
s. 3-1(2); N.S. Civ. Pro. Rules, s. 14.04; R.R.O. 1990, Reg. 194, s. 25.06.
While the contours of what constitutes material facts are assessed by a motions
judge in light of the causes of action pleaded and the damages sought, the
requirement for adequate material facts to be pleaded is mandatory. Plaintiffs
cannot file inadequate pleadings and rely on a defendant to request
particulars, nor can they supplement insufficient pleadings to make them
sufficient through particulars: Astrazeneca Canada Inc. v. Novopharm Ltd.,
2010 FCA 112.
[10]
Mancuso’s
statement of these principles is well-established in the case law. For
instance, over a decade earlier, Benaissa v Canada (Attorney General),
2005 FC 1220 underlined the crucial importance of clearly pleading all material
facts as follows:
[14] Rule 174 of the Federal Courts
Rules ("Rules") sets out the fundamental principle that a pleading
must contain a concise statement of the material facts on which a party relies.
It follows that all of the facts which a party must prove to establish a cause
of action must be legally complete.
[15] 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.).
[11]
Ms. Naqvi seeks damages under section 24(1) of
the Charter, which provides that anyone whose Charter rights or
freedoms have been infringed may apply to the Court for a “just and appropriate” remedy.
[12]
An action for damages under section 24(1) is not
in the nature of a tort, but rather a “distinct public
law action directly against the state” (Dunlea v Attorney General,
[2000] NZCA 84 at para 81, cited in Vancouver (City) v Ward,
2010 SCC 27 at para 22 [Ward]).
[13]
Justice Rennie held in Mancuso that Charter
actions do not trigger special rules on motions to strike and the
requirement of pleading material facts still applies:
21 There are no separate rules of
pleadings for Charter cases. The requirement of material facts applies
to pleadings of Charter infringement as it does to causes of action
rooted in the common law. The Supreme Court of Canada has defined in the case
law the substantive content of each Charter right, and a plaintiff must
plead sufficient material facts to satisfy the criteria applicable to the
provision in question. This is no mere technicality, “rather, it is essential
to the proper presentation of Charter issues”: MacKay v. Manitoba,
[1989] 2 S.C.R. 357 at p. 361.
[14]
Indeed, Mancuso was followed on this
point last year in Shebib v Canada, 2016 FC 539, which further
underscored that Charter cases must be “carefully
prepared and presented on a solid factual basis” (at para 23). More
recently, Justice McSweeney of the Ontario Superior Court of Justice held that
“Charter claims must be supported by material
facts, and cannot be made on a factual vacuum” (Ogiamien v R,
2017 ONSC 2312 at para 35, citing MacKay v Manitoba, [1989] 2 S.C.R. 357
(SCC)).
[15]
In this proceeding, the Defendants moved under
Rule 221(1)(a), requesting that the prothonotary strike out Ms. Naqvi’s amended
claim as disclosing “no reasonable cause of action”.
The test on such a motion is whether it is “plain and
obvious” that the claim cannot succeed, as set out by the Supreme Court
of Canada in R v Imperial Tobacco Canada Ltd, 2011 SCC 42:
[17] The parties agree on the test
applicable on a motion to strike for not disclosing a reasonable cause of
action under r. 19(24)(a) of the B.C. Supreme Court Rules. This Court has
reiterated the test on many occasions. A claim will only be struck if it is
plain and obvious, assuming the facts pleaded to be true, that the pleading
discloses no reasonable cause of action: Odhavji Estate v. Woodhouse,
2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15; Hunt v. Carey Canada Inc.,
[1990] 2 S.C.R. 959, at p. 980. Another way of putting the test is that the
claim has no reasonable prospect of success. Where a reasonable prospect of
success exists, the matter should be allowed to proceed to trial: see,
generally, Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007]
3 S.C.R. 83; Odhavji Estate; Hunt; Attorney General of Canada
v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735.
[…]
[22] A motion to strike for failure to
disclose a reasonable cause of action proceeds on the basis that the facts
pleaded are true, unless they are manifestly incapable of being proven: Operation
Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455. No evidence is
admissible on such a motion: r. 19(27) of the Supreme Court Rules (now
r. 9-5(2) of the Supreme Court Civil Rules). It is incumbent on the
claimant to clearly plead the facts upon which it relies in making its claim. A
claimant is not entitled to rely on the possibility that new facts may turn up
as the case progresses. The claimant may not be in a position to prove the
facts pleaded at the time of the motion. It may only hope to be able to prove
them. But plead them it must. The facts pleaded are the firm basis upon which
the possibility of success of the claim must be evaluated. If they are not
pleaded, the exercise cannot be properly conducted.
[16]
In summary, the applicable legal framework on
the Defendants’ motion to strike required the prothonotary to: (i) define the
constituent elements of Ms. Naqvi’s claim for Charter damages, and (ii)
assuming the facts pleaded to be true, determine whether it was “plain and obvious” that the action could not succeed
(see McIlvenna v Greater Subdbury (City), 2014 ONSC 2716 at para 24 [McIlvenna]).
C.
Elements of Ms. Naqvi’s Claim for Charter
Damages
[17]
The Charter applies not only to
legislation, but also to actions taken under statutory authority; a party may
therefore seek a remedy under the Charter for the unconstitutional
actions of a delegated decision-maker (see Eldridge v British Columbia
(Attorney General), [1997] 3 SCR 624 at 644, 1997 CarswellBC 1939
(WL Can) at paras 20-21). Ms. Naqvi pleads that her Charter rights
were breached by the actions of the visa officer, a decision-maker with
delegated authority under the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA].
[18]
Ms. Naqvi does not challenge the validity of any
of IRPA’s provisions, nor does she seek judicial review of the visa officer’s
decision (which Ms. Naqvi has since successfully appealed to the Immigration
Appeal Division). Rather, she seeks damages under section 24(1) of the Charter,
which authorizes courts to grant “appropriate and just”
remedies to individuals whose Charter rights have been breached.
[19]
A claimant who seeks damages under section 24(1)
of the Charter must first show that a Charter right has been
breached. Section 24(1) is remedial; the underlying Charter breach is
the wrong upon which the claim for damages is based (Ward at para 23).
Then, the claimant must show that damages are a just and appropriate remedy (Ward
at para 4; see also McIlvenna at para 54).
[20]
Therefore, Ms. Naqvi’s amended claim must
contain sufficient material facts that, if true, would establish the following
necessary elements of her cause of action: (i) that the visa officer’s actions
breached Ms. Naqvi’s rights under section 2(a) of the Charter, and/or
section 15 of the Charter, and (ii) that damages under section
24(1) of the Charter are a just and appropriate remedy.
D.
Breaches of Sections 2(a) and 15 of the Charter
[21]
As Justice Rennie of the Federal Court of Appeal
explained in Mancuso, a motion to strike a Charter claim must be
determined with reference to the substantive content of each Charter
right alleged to have been breached (Mancuso at para 21).
(1)
Section 2(a)
[22]
The elements of a breach of section 2(a) of the Charter
were recently confirmed by the Supreme Court of Canada in Ktunaxa Nation
v British Columbia (Forests, Lands and Natural Resource Operations), 2017
SCC 54 [Ktunaxa] as follows:
[68] To establish an infringement of
the right to freedom of religion, the claimant must demonstrate (1) that he or
she sincerely believes in a practice or belief that has a nexus with religion,
and (2) that the impugned state conduct interferes, in a manner that is non‑trivial or not
insubstantial, with his or her ability to act in accordance with that practice
or belief: see Multani, at para. 34.
[23]
I have no difficulty concluding that Ms. Naqvi’s
amended claim contains sufficient material facts to support a finding that her
religious practices and beliefs are sincere (see Ktunaxa at para 69).
[24]
However, Ms. Naqvi has not pleaded any material
facts which, if proven, would show that her religious beliefs or practices were
in any way threatened, inhibited, or constrained by the visa officer’s actions
(see Veffer v Canada (Foreign Affairs and International Trade Canada), 2007 FCA 247
at para 33). In other words, the facts pleaded do not show that Ms. Naqvi’s
freedom to believe in the Shia Ithna-Ashariyya Islamic faith, or her freedom to
practice her religion, were interfered with (Ktunaxa at para 70).
[25]
It is thus plain and obvious that those parts of
Ms. Naqvi’s amended claim seeking damages for a breach of section 2(a) of the Charter
disclose no reasonable cause of action and should be struck.
(2)
Section 15
[26]
The test for a breach of section 15 of the Charter
consists of two questions: (i) whether the law creates a distinction based on
an enumerated or analogous ground; and (ii) whether the distinction creates a
disadvantage by perpetuating prejudice or stereotyping (R v Kapp,
2008 SCC 41 at para 17). In Mancuso, in the context of a motion
to strike Charter claims, Justice Rennie of the Federal Court of
Appeal also commented that a claimant under section 15 must “establish that the basis on which he or she claims to have
been discriminated against is either an enumerated or an analogous ground
within the scope of section 15” (at para 24).
[27]
Ms. Naqvi pleads that, had she not displayed
indicia of her religious practices, her sponsorship application would have been
approved. Bearing in mind that discrimination need not be intentional to
constitute a breach of section 15 (Withler v Canada (Attorney General),
2011 SCC 12 at paras 29 and 31), I conclude that Ms. Naqvi’s pleaded facts
could support a finding that her section 15 rights were breached.
[28]
However, that by itself does not provide a
complete answer to the legal issue before this Court. As set out below, the
facts pleaded in Ms. Naqvi’s amended claim must also support a finding that Charter
damages would be a just and appropriate remedy.
[29]
I note that Ms. Naqvi has also pleaded that the
visa officer’s actions violated a duty of procedural fairness owed to her under
section 15. Ms. Naqvi has not provided the Court with any authorities supporting
this interpretation of section 15. It is ordinarily section 7 of the Charter
that protects against violations of procedural fairness (see Charkaoui v
Canada (Citizenship and Immigration), 2007 SCC 9 at para 19), and only in
circumstances where “a decision-maker has a power of
decision over life, liberty or security of the person” (Peter W Hogg, Constitutional
Law of Canada, 5th ed (Canada: Thomson Reuters, 2007) (loose-leaf 2016
supplement) ch 47.22). Ms. Naqvi has not pleaded section 7, and nor would the
facts pleaded establish a deprivation of her life, liberty or security in these
circumstances (see Maghraoui v Canada (Citizenship and Immigration),
2013 FC 883 at para 20). In any event, even if Ms. Naqvi had properly pleaded a
breach of section 7, her amended claim would still fail to support an
entitlement to Charter damages, as I will now explain.
E.
Damages a Just and Appropriate Remedy
[30]
The thrust of the Defendants’ argument on this
appeal is that the facts pleaded in Ms. Naqvi’s amended claim would, if
proven, not support a finding that the visa officer intentionally
refused Ms. Naqvi’s sponsorship application based on prejudice.
[31]
Justice Rennie wrote in Mancuso that “[a]s a general rule, damages are not available from harm
arising from the application of a law which is subsequently found to be
unconstitutional, without more” (Mancuso at para 29,
emphasis added). The “without more” is typically
some element of bad faith (Mancuso at para 29; followed in Canada
(Royal Mounted Police) v Canada (Attorney General), 2015 FC 1372
at para 37 [Royal Mounted Police]; Whaling v Canada (Attorney
General), 2017 FC 121 at para 14).
[32]
Here, Ms. Naqvi impugns the actions of a visa
officer, not the application of a law found to be unconstitutional. With
respect to the unconstitutional conduct of state actors, it is not sufficient
to prove mere negligence: there must be some “additional”
element of bad faith or malice to justify an award of damages (see Tremblay
v Ottawa Police Services Board, 2016 ONSC 4185, at para 167; Hawley v
Bapoo, 2007 ONCA 503 at paras 8-9; Royal Mounted Police at paras
36-37 and 40). This is analogous to the “without more”
identified in Mancuso.
[33]
Recently, in MacRae v Feeney, 2016 ABCA
343 [MacRae], the Alberta Court of Appeal upheld a trial judge’s decision
to strike a claim for Charter damages, relying on Henry v British
Columbia (Attorney General), 2015 SCC 24 for the proposition that, where a
plaintiff seeks Charter damages based on a “highly
discretionary decision”, an element of improper purpose, mala fides,
or wilfulness must be inferable from the facts pleaded:
12 Moldaver, J writing for five
members of the seven judges who heard the Henry appeal explained that “the
malice standard translates awkwardly into cases where the alleged misconduct is
wrongful non-disclosure.” (at para. 59) In contrast, he wrote that the
wrongdoing targeted by the tort of malicious prosecution “...is the decision to
initiate or continue an improperly motivated prosecution” and that because
malice requires a showing of improper purpose, the “improper purpose” inquiry
“is apt when the impugned conduct is a highly discretionary decision such as
the decision to initiate or continue a prosecution, because discretionary
decision-making can best be evaluated by reference to the decision-maker's
motives.” (at para. 59)
13 In the case at bar the decision to
investigate and prosecute was a “highly discretionary decision.” Neither mala
fides nor wilfulness is made out on this record. We see no basis for appellate
intervention.
[34]
Here, as in MacRae, Ms. Naqvi seeks Charter
damages based on a “highly discretionary decision”
— that of a visa officer. Ms. Naqvi must prove that the visa officer’s decision
was actually motivated by an improper purpose (i.e., intentional
prejudice). As she has not pleaded any facts that would directly prove mala
fides, she must plead circumstances from which a trier of fact could infer
this requisite intentional element (see Fragomeni v Greater Sudbury Police
Service, 2015 ONSC 3889 at para 32).
[35]
Rule 181(1)(b) also directs that a pleading must
contain particulars of any alleged state of mind of a person, including of malice
or fraudulent intention. Although Ms. Naqvi does not expressly plead that the
visa officer was motivated by malice, it is clear to me from Ms. Naqvi’s
amended claim and her submissions on this appeal that she sincerely believes
that the visa officer’s “narrow” state of mind
may be inferred from the circumstances pleaded.
[36]
I do not agree that the facts pleaded could
support the requisite wilful element required for Ms. Naqvi’s claim for Charter
damages. Ms. Naqvi’s amended claim does not plead, nor would the pleaded
facts support a finding, for example, that the visa officer’s decision was
utterly devoid of foundation or made for an extraneous purpose, or that the
visa officer made deliberately false statements or concealed information (see OJ
v Alberta, 2013 ABQB 693 at para 79), or that the visa officer
deliberately or recklessly disregarded information (see Oniel v
Metropolitcan Toronto (Municipality) Police Force (2001), 195 DLR (4th) 59
(ONCA) at para 54-59).
[37]
On this point, I refer to the reasoning in Wilson
v Toronto Police Service, [2001] OJ No 2434 (OSCJ) [Wilson], aff’d
[2002] OJ No 383 (ONCA). Although Wilson considered a difference cause
of action (malicious prosecution), the principles enunciated by the trial
judge, and confirmed by the Ontario Court of Appeal, are instructive by analogy:
72 […] [The plaintiff] is unable
to plead facts that could lead to the conclusion that Barry continued the
prosecution in the complete absence of any information pointing to guilt or
upon evidence that was ludicrously and obviously insufficient. He is
unable to point to circumstances that could result in a conclusion that the
prosecution can only be accounted for by implying some wrong or indirect motive
to the prosecutor, although it may be impossible to say what it was […]
(Emphasis added)
[38]
The Ontario Court of Appeal upheld Wilson,
writing:
2 In
some cases, depending on the entirety of the evidence, the trier of fact may
infer malice from the absence of any reasonable prospect of conviction. The
potential availability of that inference at the end of a trial cannot, however,
relieve a plaintiff of his or her obligation to properly plead the “full particulars”
of an allegation of malice: Rule 25.06(8).
([2002] OJ No
383)
[39]
I am cognizant that allegations of prejudice and
intentional discrimination are rarely proven by direct evidence, and that there
is also always the possibility that more information could arise through the
trial process. In this regard, the Defendants direct me to the transcript of
the motion, and the prothonotary’s comment that: “what
if it turns out that [the visa officer] holds some grudge against a particular
sect that Ms. Naqvi belongs to?”
[40]
However, Ms. Naqvi has not pleaded or argued
that further material facts, outside of her knowledge, exist to support her
claim. She argues instead that the visa officer’s motives can be inferred from
the facts she has pleaded. More importantly, on a motion to strike, the Court
must be wary of allowing a claim to proceed on the basis that better evidence
may arise down the road. As held by Justice Stratas: “[t]he
price of admission to documentary and oral discoveries is the service and
filing of an adequately particularized pleading that asserts all of the
essential elements of a viable cause of action” (St John’s Port
Authority v Adventure Tours Inc, 2011 FCA 198 at para 63).
[41]
Canada’s immigration system depends upon a large
number of visa officers with delegated authority to make highly discretionary
decisions. Unfortunately, some of those decisions are poorly made, as occurred
in Ms. Naqvi’s case. Those poor decisions can be set aside on appeal or
judicial review. However, absent an additional, wilful element of wrongdoing, such
as bad faith or prejudice, a poorly-made decision does not open the door to Charter
damages.
[42]
In sum, a judge of this Court could not
conclude, taking the facts pleaded to be true, that the visa officer’s conduct
was intentionally motivated by prejudice or another improper purpose.
Therefore, it is plain and obvious that Ms. Naqvi’s claim cannot succeed and
should be struck in its entirety.
F.
Whether Leave to Amend should be Granted
[43]
Ms. Naqvi has already had one opportunity to
amend her claim. In considering whether Ms. Naqvi should be granted leave to
amend again, the test is whether the defects in her pleading are potentially
curable (Simon v Canada, 2011 FCA 6 at para 8). I am satisfied
that Ms. Naqvi has pleaded all the circumstances known to her, and thus no
amendments to her statement of claim could cure the deficiencies identified.
IV.
Conclusion
[44]
I conclude that the prothonotary erred in
dismissing the Defendants’ motion to strike Ms. Naqvi’s claim. The
prothonotary’s order dated June 9, 2017 is hereby set aside, and replaced with
a judgment striking Ms. Naqvi’s amended claim without leave to amend.
[45]
I have considered the costs submissions on both
sides. Taking into account all the circumstances, including the immigration history
of these proceedings, which led to personal challenges for Ms. Naqvi and her
husband, I decline to make any costs order in this particular matter.
[46]
I wish to thank and congratulate Ms. Naqvi for
her able and professional presentation of her case, which, as mentioned during
the hearing of this appeal, rivalled the advocacy skills of many counsel who
appear before me.
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