Date: 20190611

Docket: T-1216-18

Citation: 2019 FC 801

Toronto, Ontario, June 11, 2019

PRESENT:  Madam Justice Heneghan

BETWEEN:

LESLIE STUART

Plaintiff

and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

First Defendant

and

THE ATTORNEY GENERAL OF AMERICA

Second Defendant

ORDER AND REASONS

I.  INTRODUCTION

[1]  By notice of motion in writing dated July 23, 2018, filed pursuant the Federal Courts Rules. Her Majesty the Queen in Right of Canada (the “Defendant”) seeks the following relief pursuant to the Federal Courts Rules, SOR/98-106 (the “Rules”):

1.  An Order striking out from the Plaintiff’s Statement of Claim/First Amended Statement of Claim [sic] the Attorney General of America as a Defendant;

2.  An Order striking out the Plaintiffs’ [sic] Statement of Claim, dated June 25, 2018 and the Plaintiff’s Amended Statement of Claim, dated July 10, 2018 in their entirety without leave to amend, with costs to the Crown; or,

3.  In the alternative, and only if necessary, an Order granting the Crown an extension of time in which to file a Statement of Defence within 30 days of the date of the Order; and,

4.  Such further and other relief as this Court deems appropriate.

II.  CONTEXT

[2]  The Plaintiff is a foreign national. In his Statement of Claim dated June 25, 2018, he alleges that the Defendant and the Attorney General of America apparently conspired to limit his presence in Canada. He alleges various breaches of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “Charter”). He also alleges the tort of misfeasance in public office, apparently in respect of the manner in which he was treated by the Canadian and American governments.

[3]  The “bare” factual context of the Plaintiff’s claim is set out in paragraphs 1 to 4 of his original Statement of Claim as follows:

1.  The Plaintiff claims:

(a) An Order declaring that the Defendants have violated the Plaintiff’s rights under ss. 7, 8, 9, 10(a), 10(b), 11(a), 11(d), 11(g), 12 and 15(1) of the Canadian Charter of Rights and Freedoms;

(b) An award of damages pursuant to section 24(1) of the Charter in the amount of Ten (10) million dollars in damages and or compensation, for all the violations, the losses, the mental anguish, the pain and suffering committed against the Plaintiff, by the Canadian and the American Governments;

(c) An Order for the Plaintiff to be allowed to remain in Canada for the duration of these proceedings in both the Lower and Upper Courts of Canada, for fear that the defendants may deny the Plaintiff re-entry to Canada, which is one of the violations committed by the Defendants against the Plaintiff presented in his statement of claim;

(d) Costs, interest; and

(e) Such further and other relief as this Honourable Court deems just.

2.  At all material time [sic] the Plaintiff was a lawfully admitted eTA Traveler to the Dominion of Canada.

3.  On the 11^th of May 2017, the Plaintiff on a return flight from London England [sic], applied for re-entry to Canada and was unduly delayed and then granted permission to stay in Canada for a considerably less period than he was originally granted when he arrived in Canada for the first time on 17^th April 2017.

4.  The Plaintiff was informed by the Canadian government that the reason why he was unduly delayed and ordered to leave Canada prematurely, was because of a felony report made against him by the American government, which the Canadian government received via their joint system of criminal reporting, namely the Canadian C.P.I.C. system and the American N.C.I.C. system.

[4]  The Plaintiff amended his Statement of Claim (“First Amended Statement of Claim”) on July 10, 2018.

[5]  In his First Amended Statement of Claim the Plaintiff added two paragraphs relative to his claim against the Defendant and the Attorney General of the United States, as follows:

The U.S. Border Patrol agents and the U.S. Embassy in Nassau Bahamas extorted money from the Plaintiff for U.S. Visa applications, by falsely advising the Plaintiff that he needed to obtain a visa before he could be allowed entry to the United States, while knowing all along that they; the Border Patrol Agents, had the final authority to allow the Plaintiff into the United States with or without a Visa, which is a violation under the R.I.C.O. Statute of the United States, at double the amount in damages to the Plaintiff. See Appendix G. (U.S. Government’s statement on Border Agents authority).

The Attorney General of Canada’s refusal to serve the second defendant; U.S. Government is in contravention of the Hague Convention on service abroad, and is a violation of the Plaintiff’s rights under Section 7, and section 15 of the charter, and is also Obstruction of justice under Section 139(2), of the Canadian criminal Statute. See Appendix H. (Plaintiff’s request to the Attorney General for service on the U.S. Government under The Hague Convention on service on the U.S. Government under The Hague Convention on service abroad). See Appendix I. (Attorney General of Canada’s denial to abide by the Hague Convention on service abroad).

[6]  The Plaintiff seeks relief for alleged breaches of rights provided by the Charter. He also alleges the tort of misfeasance in public office and defamation. There may also be an implied claim that the Canadian and American governments conspired to defame the Plaintiff’s character with a false arrest report.

[7]  The Plaintiff seeks the following relief in both his original and Amended Statement of Claim:

The Plaintiff claims:

(a) An Order declaring that the Defendants have violated the Plaintiff’s rights under ss. 7, 8, 9, 10(a), 10(b), 11(a), 11(d), 11(g), 12 and 15(1) of the Canadian Charter of Rights and Freedoms;

(b) An award of damages pursuant to section 24(1) of the Charter in the amount of Ten (10) million dollars in damages and or compensation, for all the violations, the losses, the mental anguish, the pain and suffering committed against the Plaintiff, by the Canadian and the American Governments;

(c) An Order for the Plaintiff to be allowed to remain in Canada for the duration of these proceedings in both the Lower and Upper Courts of Canada, for fear that the defendants may deny the Plaintiff re-entry to Canada, which is one of the violations committed by the Defendants against the Plaintiff presented in his statement of claim;

(d) Costs, interest; and

(e) Such further and other relief as this Honourable Court deems just.

III.  SUBMISSIONS

[8]  The Defendant argues that the Plaintiff has failed to plead any breach of sections 7, 8, 9, 10, 11, 12 and 15 of the Charter, nor has he set out material facts in support of any alleged breaches.

[9]  Section 7 of the Charter is a guarantee of the right to life, liberty and the security of the person.

[10]  Section 8 provides constitutional protection against unreasonable search or seizure.

[11]  Section 9 provides the right against arbitrary detention or imprisonment.

[12]  Section 10(a) provides a right to be informed of the reasons for one’s arrest or imprisonment.

[13]  Section 10(b) provides the right upon arrest or detention to retain and instruct counsel without delay and to be informed of this right.

[14]  Section 11(a) allows for any person charged with an offence the right to be informed without delay of the specific offence with which they are charged.

[15]  Section 11(d) allows for any person charged with an offence the right to be presumed innocent until proven guilty.

[16]  Section 11(g) provides that an individual charged with an offence can only be found guilty of that offence if it constituted an offence according to Canadian or international law at the time that the act or offence was committed.

[17]  Section 12 is engaged when a person can show “treatment or punishment” by a Canadian state actor. It provides the right not to be subject to any cruel and unusual treatment or punishment.

[18]  Section 15 is a guarantee from differential treatment on an enumerated or, analogous ground to the enumerated grounds of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[19]  Subsection 24(1) of the Charter grants a Court the discretion to grant a remedy for a breach of a Charter right.

[20]  The Defendant submits that this Court has no jurisdiction over the Attorney General of the United States and is under no obligation to facilitate service of the Statement of Claim upon that person, under the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 658 UNTS 163(entered into force 11 October 1969) (the “Hague Service Convention”).

[21]  The Plaintiff responded to the Defendant’s arguments. In his written brief, he argues that the Defendant has no defence to his allegations of criminal conduct and that the Defendant is further in error by failing to serve his Statement of Claim upon the Attorney General of the United States, in light of the provisions of the Hague Service Convention.

[22]  The Defendant, in her reply, submits that the Plaintiff failed to answer any of her arguments and that there is no reasonable cause of action disclosed in his Statement of Claim.

[23]  The Plaintiff filed three supplemental submissions. In the document titled “Second Supplemental Submissions”, he refers to provisions of the Canadian Victims Bill of Rights, S.C. 2015, c. 13, s. 2.

[24]  In his Third Supplemental Submissions the Plaintiff provided several paragraphs from the decision in Apotex Inc. v. Ambrose, [2017] F.C.R. 510. He refers to these paragraphs for the law on striking out pleadings, breach of statutory duty and fiduciary duty, costs, defamation, and conspiracy.

[25]  In his “Fourth Supplemental Submissions” the Plaintiff provides information on the Canadian Police Information Centre and the National Crime Information Centre. He also claims exemplary, punitive and special damages and special costs.

IV.  DISCUSSION

[26]  In seeking to strike the Plaintiff’s Statement of Claim and First Amended Statement of Claim, the Defendant relies principally on Rules 174 and 221(1) of the Rules, which provide as follows:

[27]  The first matter to be addressed is the claim against the Attorney General of the United States.

[28]  I agree with the submissions of the Defendant that the Federal Court lacks jurisdiction over the Attorney General of the United States.

[29]  The Court is created pursuant to section 101 of the Constitution Act, 1867 (UK), 30 & 31 Victoria, c. 3, reprinted in R.S.C. 1985, Appendix II, No. 5(the “Act”). It is a statutory Court, authorized to adjudicate causes that fall within the jurisdiction conferred by the Act; see the decision in ITO Int'l Terminal Operators v. Miida Electronics, [1986] 1 S.C.R. 752.

[30]  Section 17 of the Act confers jurisdiction on the Federal Court in respect of the Defendant. Subsection 17(1) provides as follows:

[31]  There is no basis for this Court to exercise jurisdiction over the Attorney General of the United States; see the decision in Massey v. Canada (1997), 137 F.T.R. 171.

[32]  Accordingly, the action is struck against the Attorney General of the United States, without leave to amend.

[33]  I turn now to the balance of the Plaintiff’s claims as set out in the original Statement of Claim and in the First Amended Statement of Claim.

[34]  The Plaintiff seeks relief for various breaches of the Charter, including a breach of his right to life, liberty and security of the person, the right to be free from unreasonable search and seizure and the right to be presumed innocent of any criminal charge until tried in a fair and impartial tribunal.

[35]  The Plaintiff raises his claim in the context of entering Canada on May 11, 2018, following an airline flight from London, England. He objects that he was “unduly” delayed, presumably by Canadian Border Security and Immigration agents, and then was granted entry for a shorter period of time than he had been granted upon his arrival to Canada on April 17, 2017.

[36]  According to an exhibit to the original Statement of Claim, the Plaintiff is a citizen of the Bahamas.

[37]  Without the status of Canadian citizenship or permanent residence, the Plaintiff has no right to enter Canada; see decision in Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711.

[38]  Bare allegations in a Statement of Claim are insufficient to establish a cause of action. In Mancuso v. Canada (National Health and Welfare) (2015), 476 N.R. 219 (F.C.A.) at paragraphs 16 and 17, the Federal Court of Appeal set out general principles as follows;

[16]  It is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and relief sought. As the judge noted “pleadings play an important role in providing notice and defining the issues to be tried and that the Court and opposing parties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action.”

[17]  The latter part of this requirement – sufficient material facts – is 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.

[39]  The purported Statements of Claim filed by the Plaintiff do not meet these criteria.

[40]  In Operation Dismantle v. Canada, [1985] 1 S.C.R. 441, the Supreme Court of Canada said the following at pages 451, 455, and 486.

I believe that we are obliged to read the statement of claim as generously as possible and to accommodate any inadequacies in the form of the allegations which are merely the result of drafting deficiencies.

[…]

We are not, in my opinion, required by the principle enunciated in Inuit Tapirisat, supra, to take as true the appellants' allegations concerning the possible consequences of the testing of the cruise missile. The rule that the material facts in a statement of claim must be taken as true for the purpose of determining whether it discloses a reasonable cause of action does not require that allegations based on assumptions and speculations be taken as true. The very nature of such an allegation is that it cannot be proven to be true by the adduction of evidence. It would, therefore, be improper to accept that such an allegation is true. No violence is done to the rule where allegations, incapable of proof, are not taken as proven.

[…]

The law then would appear to be clear. The facts pleaded are to be taken as proved. When so taken, the question is do they disclose a reasonable cause of action, i.e. a cause of action "with some chance of success" (Drummond-Jackson v. British Medical Association, [1970] 1 All E.R. 1094) or, as Le Dain J. put it in Dowson v. Government of Canada (1981), 37 N.R. 127 (F.C.A.), at p. 138, is it "plain and obvious that the action cannot succeed?" Is it plain and obvious that the plaintiffs' claim for declaratory or consequential relief cannot succeed?

[41]  I agree with and accept the submissions of the Defendant that in claims against the Crown, a plaintiff must plead material facts, as explained by the Federal Court of Appeal in St. John’s Port Authority v. Adventure Tours (2011), 420 N.R. 149 (F.C.A.) at paragraph 63, as follows:

[63]  In my view, it was not “manifestly wrong” for this Court in Merchant to be mindful of this policy concern and insist that the requirement to plead material facts be followed, without any relaxation, for the tort of abuse of public office. The concern in Merchant was that it is all too easy for a plaintiff who is aggrieved by governmental conduct to assert, perhaps without any evidence at all, that “the government” acted, “knowing” it did not have the authority to do so, “intending” to harm the plaintiff. Such a bald and idle assertion is insufficient to trigger the defendant’s obligation to file a defence, let alone its later obligation to disclose its documents and produce a witness for examination in discoveries. […]

[42]  The Defendant argues that the Plaintiff has failed to plead breaches of the Charter rights for which he seeks recovery of Charter damages.

[43]  I agree.

[44]  A Charter breach cannot be established in a vacuum. I refer to the decision of the Supreme Court of Canada in MacKay v. Manitoba, [1989] 2 S.C.R. 357 at page 361 as follows:

Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered options. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based on the unsupported hypotheses of counsel.

[45]  A party cannot obtain damages for a Charter breach unless and until a breach of the Charter is established. No breach of the Charter can be established unless proper factual allegations are set out in a Statement of Claim. That is not the case here.

[46]  The Defendant further challenges the Plaintiff’s allegations of misfeasance in public office, arising in connection with the manner in which he was treated upon his arrival to Canada in May 2018.

[47]  The basis for this allegation is that the Defendant somehow “knew” or should have known that information emanating from the United States, concerning the Plaintiff, was false or had been falsified.

[48]  According to the decision in Al Omani v. Canada, 2017 FC 786 at paragraphs 39 to 42, this tort cannot be established simply on the grounds that a public official intentionally made a decision that injured a plaintiff’s private interests. To satisfy the two elements of this tort, a Plaintiff must also show that the official knows that the conduct was unlawful and likely to cause harm.

[49]  I agree with the arguments of the Defendant that the Plaintiff has failed to plead sufficient facts to show that the “impugned” information is in fact false. In my opinion, this plea is inadequate and will be struck out, on the basis of the submissions made by the Defendant.

[50]  The Plaintiff seeks an Order that he be allowed to remain in Canada during the prosecution of his action.

[51]  In her submissions, the Defendant addresses the implicit allegation of conspiracy.

[52]  For ease of reference, I refer to paragraph 45 of her submissions as follows:

The Plaintiff’s implied allegation of conspiracy is not made out. The pleadings demonstrably fail to establish the requisite elements of the tort:

(a) All of the parties to the conspiracy must be identified and their relationship to each other must be described;

(b) Agreements between the various defendants must be pleaded with all facts material to such agreements including the parties to each agreement, the date of the agreement and the object and purpose of each agreement;

(c) Overt acts of each of the alleged conspirators in pursuance or furtherance of the conspiracy must be plead with clarity and precision, including the times and dates of such overt acts; and,

(d) The pleadings must allege the injury and the damage occasioned to the plaintiffs and special damages in the sense of the monetary loss which the plaintiffs have sustained must be plead and particularized.

[53]  I agree with the arguments advanced by the Defendant.

[54]  In Al Omani, supra, the Federal Court set out the elements and facts necessary to ground a claim in conspiracy. Paragraph 94 of this decision provides as follows:

The nature of a conspiracy requires that there be participants, some known and others unknown, who agree to do something that will cause injury (Cement LaFarge v B.C. Lightweight Aggregate, [1983] 1 S.C.R. 452). Here, the material facts allowing to conclude to some agreement are absent. The date, the object and the purpose of an agreement between unknown participants is not even pled. No overt act by the participants in furtherance of the conspiracy is offered in the pleadings. These are bald allegations involving undefined persons without even a hint of the agreement which is central to a claim of conspiracy. As found in Sivak at para 55, this constitutes a pleading that is vexatious (see also Kisikawpimootewin). It is not possible, on the basis of these pleadings, for the Defendant to know how to answer. The pleading is “so defective that it cannot be cured by simple amendment” (Krause v Canada, [1999] 2 FCR 476 (FCA)). The Plaintiffs never indicated how they could amend their pleadings on this front such that there could be some assessment of “the readiness of the amendments needed”, in the words of the Federal Court of Appeal in Sweet.

[55]  The Statement of Claim and First Amended Statement of Claim do not provide the factual allegations necessary to support a claim of conspiracy. The Plaintiff does not allege conspiracy in his Statement of Claim, as such it cannot be considered as a cause of action. The information provided in his Supplemental Submissions cannot assist him in supporting the claim.

[56]  In his Supplemental Submissions, the Plaintiff advised that he has relocated to the Bahamas.

[57]  However, in any event, this Court has no jurisdiction to make such an Order in the context of the Plaintiff’s action.

[58]  The Defendant argues that the Plaintiff’s original Statement of Claim and the First Amended Statement of Claim constitute and otherwise, are scandalous, frivolous or vexatious.

[59]  In Canada (Attorney General) v. TeleZone  Inc., [2010] 3 S.C.R. 585 at paragraph 78, the Supreme Court of Canada said that a Court retains a discretion to strike a statement of claim if it is essentially an application for judicial review presented as a cause of action for a private wrong, as follows:

[78]  To this discussion, I would add a minor caveat. There is always a residual discretion in the inherent jurisdiction of the provincial superior court (as well as in the Federal Court under s. 50(1) of its Act), to stay the damages claim because in its essential character, it is a claim for judicial review with only a thin pretence to a private wrong. Generally speaking the fundamental issue will always be whether the claimant has pleaded a reasonable private cause of action for damages. If so, he or she should generally be allowed to get on with it.

[60]  Insofar as the Plaintiff complains about the period of time for which he was granted permission to stay in Canada, I agree with the arguments of the Defendant that this complaint may be the subject of an application for judicial review pursuant to the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. However, that is not the matter that is set out in the Plaintiff’s Statements of Claim and those pleadings can be characterized as vexatious.

[61]  The Statements of Claim can also be described as scandalous, frivolous and vexatious , as described by the Supreme Court of Canada in R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45 at paragraphs 22 and 23 as follow:

[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.

[23]  […] The judge on the motion to strike cannot consider what evidence adduced in the future might or might not show. To require the judge to do so would be to gut the motion to strike of its logic and ultimately render it useless.

[62]  The original Statement of Claim and the First Amended Statement of Claim do not meet the basic elements of a proper pleading. The purported causes of action cannot succeed, in other words they do not meet the standard of achieving a “scintilla of success”.

[63]  In the result, the motion is granted, the Statement of Claim and the First Amended Statement of Claim are struck out, without leave to amend.

V.  COSTS

[64]  The Defendant seeks costs, pursuant to Rule 400(3)(k)(i) upon her motion, if successful. That Rule provides as follows:

[65]  Rule 400(2) allows for an award of costs in favour of the Crown, as follows:

[66]  An award of costs lies wholly in the discretion of the Court, pursuant to Rule 400 (1) which provides as follows:

[67]  The Defendant was successful upon her motion. In the exercise of my discretion, I award the Defendant the sum of $500.00 in costs, inclusive of fees, disbursements and HST, to be paid forthwith by the Plaintiff.

ORDER in T-1216-18

THIS COURT ORDERS that the Motion is allowed with costs to the Defendant in the amount of $500.00 inclusive of fees, disbursements and HST, payable forthwith.

“E. Heneghan”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	t-1216-18
STYLE OF CAUSE:	LESLIE STUART v HER MAJESTY THE QUEEN IN RIGHT OF CANADA v THE ATTORNEY GENERAL OF AMERICA

MOTION IN WRITING CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES

 

ORDER AND REASONS:	HENEGHAN J.
DATED:	JUNE 11, 2019

WRITTENS REPRESENTATIONS BY:

Leslie Stuart	For The PLAINTIFF (ON HIS OWN BEHALF)
Asha Gafar Christopher Crighton	For The FIRST DEFENDANT

SOLICITORS OF RECORD:

Attorney General of Canada

For The FIRST DEFENDANT