Date: 20241206
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Docket: T‑1553‑23
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Citation: 2024 FC 1979
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Toronto, Ontario, December 6, 2024
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PRESENT: Associate Judge Trent Horne |
BETWEEN:
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ADRIAN MALIQI
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Plaintiff
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and
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HIS MAJESTY THE KING AND
MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP
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Defendants
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JUDGMENT AND REASONS
I. Overview
[1] The plaintiff asserts that he lost his permanent resident card when he was in Europe in December 2015. In January 2016, he went to the Canadian embassy in Vienna to apply for travel documents to return to Canada. That application was refused in February 2016 on the basis that the plaintiff had not complied with the residency obligations in the Immigration and Refugee Protection Act, SC 2001 c 27 (“IRPA”
).
[2] The plaintiff thought the decision was wrong. He appealed it to the Immigration Appeal Division (“IAD”
).
[3] In March 2016, the plaintiff applied to Canadian embassy staff in Vienna for travel documents that would allow him to appear before the IAD. He says that embassy staff in Vienna misinformed him about the process for obtaining documents to return to Canada to appear in person before the IAD. It is asserted that embassy staff told him that a request for travel documents had to be made to the IAD, not the embassy. Based on the information provided by the embassy, the plaintiff applied for travel documents from the IAD, which request was refused.
[4] The plaintiff requested travel documents from the embassy again on November 29, 2017 for the purposes of attending his IAD appeal. The embassy responded that since the plaintiff was last physically present in Canada in April 3, 2015, he ceased to be eligible for travel documents on April 3, 2016. When the plaintiff told the embassy staff that he had made a request for travel documents in March 2016, it is alleged that embassy staff realized their mistake, and reopened the plaintiff’s application for a permanent resident travel document, which was issued on July 20, 2018.
[5] The plaintiff was successful in his IAD appeal.
[6] On July 26, 2023, the plaintiff filed a statement of claim for damages arising from what he says was his lawful right to be in Canada from January 2016 to July 2018. The plaintiff claimed $100,000 in compensatory and $60,000 in punitive damages as a consequence of the loss of opportunity to work and study in Canada during that time, loss of access to healthcare and education, mental heath challenges associated with a fear of being returned to his country of origin, and delays in the processing of his citizenship application.
[7] The defendants moved to strike the statement of claim on the basis that it contained no material facts to support the causes of action, and did not disclose a reasonable cause of action. By order dated May 29, 2024, associate judge Crinson struck the statement of claim, with leave to amend. Costs were awarded, and were payable forthwith.
[8] Associate judge Crinson’s decision was upheld on appeal (Maliqi v Canada, 2024 FC 1121). In the order made on the appeal, the plaintiff was not permitted to file any further documents until the costs awarded in the May 29, 2024 order had been paid.
[9] The plaintiff sent a cheque to the defendants to satisfy the costs award, and served and filed a fresh as amended statement of claim (“Claim”
).
[10] The plaintiff’s cheque was not honoured by the bank.
[11] The defendants move to strike the Claim, without leave to amend, on the basis that the condition precedent for its filing, payment of the costs award, has not been satisfied, and also on the basis that the Claim discloses no cause of action. The motion is granted.
II. Law on Motions to Strike
[12] The legal principles applying to motions to strike are well known. The threshold to strike a claim is a high one.
[13] To strike a statement of claim it must be plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action. It needs to be plain and obvious that the action is certain to fail because it contains a radical defect (R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 17 (“Imperial Tobacco”
)). Pleadings must be read as generously as possible (Atlantic Lottery Corp Inc v Babstock, 2020 SCC 19 at paras 88–90).
[14] A motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. On such a motion, the Court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial (Imperial Tobacco at para 21; La Rose v Canada, 2023 FCA 241 at para 109).
[15] To disclose a reasonable cause of action, a claim must: (a) allege facts that are capable of giving rise to a cause of action; (b) disclose the nature of the action which is to be founded on those facts; and (c) indicate the relief sought, which must be of a type that the action could produce and the Court has jurisdiction to grant (Oleynik v Canada (Attorney General), 2014 FC 896 at para 5).
III. Analysis
A. The costs award has not been satisfied
[16] It is not contested that the plaintiff’s cheque to satisfy the costs award was not honoured by the bank, and that the plaintiff has not paid the costs owing under the May 29, 2024 order.
[17] The plaintiff argues that this is an unintentional and rectifiable error. He says that the defendants deposited the cheque two weeks after it was delivered, and in the intervening period another payment went through his account that lowered the balance. It is stated that this can be remedied in the near future.
[18] I cannot agree with the plaintiff’s argument that this is a minor procedural irregularity. The July 17, 2024 order required costs to be paid before a fresh claim could be filed. That condition precedent has not been satisfied. To permit the fresh as amended statement of claim to remain on the Court file would require me to disregard or amend an order of a judge, which I cannot do.
[19] The fresh as amended statement of claim is therefore struck.
B. The Claim was filed after the expiry of the limitation period
[20] Striking a pleading without leave to amend is a power that must be exercised with caution. If a statement of claim shows a scintilla of a cause of action, it will not be struck out if it can be cured by amendment (Al Omani v Canada, 2017 FC 786 at paras 32-35).
[21] I am unable to exercise my discretion to grant leave to the plaintiff to serve and file a third version of the statement of claim when the outstanding costs award is paid. It is barred by the applicable limitation period.
[22] The original statement of claim was filed on July 26, 2023.
[23] The applicable limitation period is in section 32 of the Crown Liability and Proceedings Act, RSC, 1985, c C-50 (“CLPA”
), which states:
Prescription and Limitation
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Prescription
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Provincial laws applicable
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Règles applicables
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32 Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose.
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32 Sauf disposition contraire de la présente loi ou de toute autre loi fédérale, les règles de droit en matière de prescription qui, dans une province, régissent les rapports entre particuliers s’appliquent lors des poursuites auxquelles l’État est partie pour tout fait générateur survenu dans la province. Lorsque ce dernier survient ailleurs que dans une province, la procédure se prescrit par six ans.
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[24] The cause of action in this matter arose in Vienna, not in a province. The limitation period within which to bring an action is six years.
[25] The plaintiff relies on the Ontario Limitations Act, SO 2002, c 24. Sections 4 and 5 of that Act set out a two-year limitation period from the date a claim is “discovered.”
Ontario limitations legislation has no application. The plaintiff’s claim is against the federal Crown, and CLPA sets out the relevant limitation period. Unlike provincial legislation, the CLPA has a fixed and universal six-year limitation period, without application of a discoverability principle.
[26] The events that are the subject of the plaintiff’s claim occurred on January 12, 2016 (application for travel documents refused; permanent resident status revoked), January 17, 2016 (submission of further documents to the embassy), February 11, 2016 (the embassy’s refusal to reconsider the request for travel documents), and March 14, 2016 (providing incorrect information regarding the process for obtaining travel documents). Even if the Claim disclosed a cause of action, the initial statement of claim was filed in July 2023, more than six years after each of these events. The action is out of time. This deficiency cannot be cured with better drafting, therefore the fresh as amended statement of claim must be struck without leave to amend.
[27] In the event I am incorrect, and a discoverability principle can be applied to the limitation period in the CLPA, I am not satisfied that the Claim sets out material facts that could engage the discoverability principle.
[28] Jurisprudence from the Court of Appeal for Ontario (Longo v MacLaren Art Centre, 2014 ONCA 526 at para 42) states that “a plaintiff is required to act with due diligence in determining if he has a claim. A limitation period will not be tolled while a plaintiff sits idle and takes no steps to investigate”
if injury, loss or damage has occurred. Aside from stating in the Claim that the plaintiff trusted the embassy and followed their instructions, and lost hope after the IAD refused a request for travel documents, there are no material facts that, if presumed to be true, would show due diligence after March 14, 2016 and before November 29, 2017.
[29] The plaintiff argues that the defendants are not prejudiced by the limitation issue. I cannot agree. Limitation periods “are meant to promote certainty, avoid stale evidence, encourage diligence, and bring repose”
(Markevich v Canada, 2003 SCC 9 at para 17). They cannot be disregarded.
C. No cause of action in negligence
[30] Even if the original statement of claim had been filed within the applicable limitation period, it is not sustainable because there is no cause of action in negligence in these circumstances.
[31] After describing the plaintiff’s interactions with embassy staff and the IAD in 2016-2018, the Claim states that “all of these direct actions constitute negligence.”
In essence, the plaintiff asserts that he was owed a duty of care, and that this duty was breached by embassy staff when they failed to properly assess the plaintiff’s residency evidence, and provided incorrect information on how to obtain travel documents. The jurisprudence indicates that there is no such duty of care.
[32] There is no recognized cause of action in negligence against a government authority for negligent breach of a statutory duty (Holland v Saskatchewan, 2008 SCC 42 at paras 8-9).
[33] IPRA does not set out any duty of care between embassy staff and persons making applications for travel documents.
[34] It would not be “just, fair and reasonable to impose a duty of care on those responsible for the administrative implementation of immigration policies […], absent evidence of bad faith, misfeasance, or abuse of process.”
Imposing a duty of care on immigration staff would hamper the effective performance of the system of immigration control (Farzam v Canada (Minister of Citizenship and Immigration), 2005 FC 1659 at paras 102 and 108). I am therefore satisfied that it is plain and obvious that there is no cause of action against the defendants in negligence.
[35] The Claim also requests damages for “gross misconduct,”
but no details are provided as to what would elevate the conduct of embassy staff from a mistake to misconduct or abuse.
[36] It is useful to repeat what the Federal Court of Appeal said about particulars in Mancuso v Canada (National Health and Welfare), 2015 FCA 227, a decision cited by associate judge Crinson in his May 29, 2024 order:
[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.
[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.
[37] The Claim makes a bald allegation of gross misconduct. To the extent this is intended to describe misfeasance in public office, that is an intentional tort. The elements of the tort are, first, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff. Misfeasance in public office also requires an element of bad faith or dishonesty. Proof that the tortious conduct was the cause of the injuries and are compensable in tort law is also required (Odhavji Estate v Woodhouse, 2003 SCC 69 at paras 23, 25, 28, and 32). The Claim does not include any material facts in this respect.
[38] Since this is the second version of the statement of claim, and the plaintiff has already been alerted to the requirement to give full details of his allegations, I am not satisfied that material facts can be alleged that would support a claim for what could generally be described as gross misconduct.
[39] The Claim is therefore struck without leave to amend.
[40] I appreciate that the plaintiff represents himself. “The Court generally shows flexibility when a party is self-represented, but this does not exempt the party from complying with its rules of procedure. The reason for this is simple – it is not fair to a defendant to have to respond to claims that are not explained in sufficient detail for them to understand what the claim is based on, or to have to deal with claims based on unsupported assumptions or speculation. Neither is it fair to the Court that will have to ensure that the hearing is done in a fair and efficient manner. A court would have difficulty ruling that a particular piece of evidence was or was not relevant, for example, if the claim is speculative or not clear. This will inevitably lead to “fishing expeditions” by a party seeking to discover the facts needed to support their claims, as well as to unmanageable trials that continue far longer than is appropriate as both sides try to deal with a vague or ever-changing set of assertions. A degree of flexibility is needed to allow parties to represent themselves and to have access to the justice system, but flexibility cannot trump the ultimate demands of justice and fairness for all parties”
(Fitzpatrick v Codiac Regional RCMP Force, District 12, 2019 FC 1040 at paras 19-20).
IV. Costs
[41] At the conclusion of the hearing, the defendants submitted that costs should be payable by the plaintiff in an amount to be determined by the Court. The plaintiff submitted that there should be no award of costs, and that costs should not act as a barrier to self-represented persons accessing the Court.
[42] In the exercise of my broad discretion under subrule 400(1) of the Federal Courts Rules, SOR/98-106, costs will be payable by the plaintiff to the defendants, fixed at $300.00. This is the same as what was awarded by Justice Gleeson, and less that what would have been payable had costs been assessed at the middle of Column III of Tariff B.
JUDGMENT in T-1553-23
THIS COURT’S JUDGMENT is that:
The fresh as amended statement of claim is struck, without leave to amend.
Costs of the motion are payable by the plaintiff to the defendants, fixed at $300.00.
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"Trent Horne" |
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Associate Judge |
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