Date: 20051129
Docket: IMM-9759-04
Citation: 2005 FC 1612
BETWEEN:
ERNST ZÜNDEL
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
HUGHES J.
[1] This is a motion by the Defendant, Her Majesty the Queen (Crown) to strike all or at least portions of an Amended Statement of Claim filed by the Plaintiff Ernst Zündel (Zündel) on November 1, 2005, and other consequent relief.
[2] Zündel is a 65 year old permanent resident of Canada who started living in Canada in 1958. Since that time he has faced threats, violent incidents, and court proceedings in respect of his expressions of certain views respecting the Holocaust. In the year 2000 Zündel moved to the United States from where he was deported back to Canada on February 19, 2003. Zündel was detained in custody from February 19, 2003 until May 1, 2003 when the Minister of Citizenship and Immigration (Minister) and the Solicitor General of Canada signed a certificate under the provisions of sections 33 and 34(1)(c)(d)(e) and (f) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA) to the effect that Zündel was a danger to the security of Canada. On May 1, 2003 the Solicitor General of Canada and the Minister issued a warrant under section 82(1) IRPA for the arrest and detention of Zündel.
[3] As required by sections 77(1), 78 and 80 of IRPA, a review as to the reasonableness of the certificate was commenced on May 5, 2003 in the Federal Court: Justice Blais conducted the review. Ultimately on February 24, 2005 Justice Blais upheld the security certificate and Zündel was, in early March 2005, deported to Germany where he remains in jail to this day.
[4] A chronology of relevant events since the issuance of the certificate is important to the understanding of the issues now before the Court:
· May 1, 2003 the Minister and Solicitor General issue the certificate
· May 5, 2003 review proceedings were instituted in the Federal Court before Justice Blais.
· May 6, 2003 Zündel filed a Notice of Constitutional Question in the Federal Court review proceedings.
· Early in 2003 and subsequent to the above events, Zündel instituted habeas corpus proceedings in the Ontario Superior Court, in which proceedings the constitutionality of certain provisions of IRPA, the same ones as now challenged in this action, were challenged.
· October 14, 2003 Zündel withdrew the Notice of Constitutional Question in the Federal Court.
· November 18 & 19, 2003 Justice Benotto of the Ontario Superior Court heard Zündel's application.
· November 25, 2003 Justice Benotto "declined jurisdiction" and gave reasons stating, inter alia, at paragraphs 16 and 17:
16 The application here is an attempt to bypass the comprehensive statutory scheme and usurp a process underway. The applicant has not met the test to have this court assume jurisdiction and it would be inappropriate to do so.
17 Although I have not assumed jurisdiction, had I done so, I would have dismissed the application in any event.
· Zündel appealed this decision.
· A motion for adjournment of the Federal Court proceedings before Justice Blais was heard on various days in November and December 2003 and January 2004 and on February 6, 2004 Justice Blais dismissed the motion giving reasons, 2004 F.C. 198, stating inter alia, at paragraphs 21 and 22:
21 Second, Mr. Zündel's counsel chose to withdraw the constitutional question that was before me and place it before a judge of the Ontario Superior Court, thereby adding an inevitable delay since the judge held she did not have jurisdiction on a matter already before the Federal Court, in accordance with both the jurisprudence and the Court of Justice Act, R.S.O. 1990, c. 43.
22 Third, there was no valid reason to withdraw the constitutional challenge that was properly before me until November 2003. True, the Minister had questioned whether a designated judge could hear a constitutional challenge, but this was not sufficient for me, or another judge of the Federal Court, not to hear the challenge. During the same period, Mr. Justice Simon Noël of this Court heard a constitutional challenge of the same provisions in the case of Re Charkaoui, and rendered a decision within a matter of months (Re Charkaoui, [2003] F.C.J. No. 1816, 2003 CF 1419).
· May 10, 2004 the Ontario Court of Appeal dismissed Zündel's appeal from the decision of Justice Benotto; Zündel sought leave to appeal to the Supreme Court of Canada.
· During this period Zündel applied to have Justice Blais removed from the Federal Court review proceedings alleging bias.
· October 21, 2004 the Supreme Court of Canada dismissed Zündel's application for leave to appeal.
· November 23, 2004 the Federal Court of Appeal affirmed the Federal Court decision dismissing Zündel's application to remove Justice Blais on allegations of bias.
· The same day, November 23, 2004, final argument was made before Justice Blais as to whether the issuance of the certificate was proper.
· November 24, 2004 Zündel filed the original Statement of Claim in this action claiming a declaration of invalidity of the provisions of IRPA at issue in these proceedings, a declaration that Zündel's detention was unlawful and claiming release of Zündel.
· December 10, 2004 the Federal Court of Appeal released its decision in Re Charkaoui 2004 F.C.A. 421 affirming that a trial judge reviewing a certificate (such as Justice Blais or Justice Noel) has jurisdiction to consider constitutional issues and upholding the constitutionality of the same provisions of IRPA as are challenged by Zündel in the action at issue here.
· February 24, 2005 Justice Blais issued a decision with reasons, 2005 F.C. 295 determining that the certificate is reasonable.
· Early March 2005, Zündel was deported to Germany where he remains in jail to this day.
· August 25, 2005 the Supreme Court of Canada granted leave to appeal the Federal Court of Appeal decision in Re Charkaoui. The appeal is scheduled to be heard in June 2006.
· October 31, 2005 Zündel moved to adjourn the Crown's motion to strike in this action until the Supreme Court of Canada determines Re Charkaoui, the motion is dismissed. Zündel filed another such motion which I directed to be heard at the time of this motion to strike.
· November 1, 2005 Zündel filed an Amended Statement of Claim in this action in which the claim for release of Zündel was omitted and a claim for $10 million for unlawful detention and deportation was added.
· November 16, 2005 the Crown filed an Amended Motion to Strike as against the Amended Statement of Claim.
· November 23, 2005 the motion to strike was heard with this decision taken under reserve.
[5] The Crown's motion to strike is based on either of two grounds:
1. Does the Amended Statement of Claim disclose a reasonable cause of action: and
2. Is Zündel's action res judicata or an abuse of process.
[6] Zündel argues that the motion, or the action, should be stayed pending the Supreme Court of Canada's disposition of Re Charkaoui.
[7] Each will be considered in turn.
ISSUE # 1 - Reasonable Cause of Action
[8] Rule 221(1)(a) of the Federal Court Rules provide that the Court may strike an action where it discloses no reasonable cause of action. In considering such issue the Court is required to look only at the pleading as filed and presume that the allegations can be proved in Court. Rule 221(2) provides that no evidence shall be heard in respect of a motion made under Rule 221(1)(a). The Court should only dismiss the action or strike out any claim in plain and obvious cases where the Court is satisfied that the case is beyond doubt ([1980] 2 S.C.R. 735">Canada (Attorney General) v. Inuit Tapirisat of Canada [1980] 2 S.C.R. 735 per Estey J. for the Court at page 740).
[9] At the heart of Zündel's amended action is a claim for damages against the Crown based on the Crown's enforcement of certain provisions of IRPA which, Zündel alleges, are invalid having regard to certain provisions of the Charter of Rights and Freedoms. Those provisions of IRPA are, and were at the time of this enforcement, valid and found to be so by the Federal Court of Appeal in Re Charkaoui 2004 F.C.A. 421. Zündel in his Amended Statement of Claim, paragraph 20, makes an admission that if the Supreme Court of Canada affirms this decision, it will be a "complete answer" to his claim, he says:
20. The issues in Charkaoui that are before the Supreme Court of Canada are identical to the issues herein, ie, the constitutionality of the security certificate legislation. The Supreme Court of Canada's decision in Charkaoui will be a complete answer to this claim. The defendant now attempts to never allow this answer to be revealed and then this claim adjudicated based on properly constituted laws in Canada, as determined by the Supreme Court of Canada.
[10] As of the time of Zündel's detention and deportation the "complete answer" as affirmed by the Federal Court of Appeal was that the relevant provisions of IRPA were valid having regard to the Charter. Courts apply the law as it stands today (see Guimond v. Quebec(procurer general)(1996), 201 N.R. 38 and Mackin v. New Brunswick, [2002] 1 S.C.R. 405, below).
[11] The Supreme Court of Canada in Guimond v. Quebec(procurer general)(1996), 201 N.R. 38 and in Mackin v. New Brunswick, [2002] 1 S.C.R. 405 has held that, absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages for harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional. At paragraphs 78 and 79 of Mackin, Gonthier J. for the Court said:
78 According to a general rule of public law, absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages [page442] for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional (Welbridge Holdings Ltd. v. Greater Winnipeg, [1971] S.C.R. 957">[1971] S.C.R. 957; Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42">[1979] 1 S.C.R. 42). In other words "[i]nvalidity of governmental action, without more, clearly should not be a basis for liability for harm caused by the action" (K. C. Davis, Administrative Law Treatise (1958), vol. 3, at p. 487). In the legal sense, therefore, both public officials and legislative bodies enjoy limited immunity against actions in civil liability based on the fact that a legislative instrument is invalid. With respect to the possibility that a legislative assembly will be held liable for enacting a statute that is subsequently declared unconstitutional, R. Dussault and L. Borgeat confirmed in their Administrative Law: A Treatise (2nd ed. 1990), vol. 5, at p. 177, that:
In our parliamentary system of government, Parliament or a legislature of a province cannot be held liable for anything it does in exercising its legislative powers. The law is the source of duty, as much for citizens as for the Administration, and while a wrong and damaging failure to respect the law may for anyone raise a liability, it is hard to imagine that either Parliament or a legislature can as the lawmaker be held accountable for harm caused to an individual following the enactment of legislation. [Footnotes omitted.]
79 However, as I stated in Guimond v. Quebec(Attorney General), supra, since the adoption of the Charter, a plaintiff is no longer restricted to an action in damages based on the general law of civil liability. In theory, a plaintiff could seek compensatory and punitive damages by way of "appropriate and just" remedy under s. 24(1) of the Charter. The limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government. In other words, this doctrine makes it possible to determine whether a remedy is appropriate and just in the circumstances. Consequently, the reasons that inform the general principle of public law are also relevant in a Charter context. Thus, the government and its representatives are required to exercise their powers in good faith and to respect the "established and indisputable" laws that define [page443] the constitutional rights of individuals. However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable. Otherwise, the effectiveness and efficiency of government action would be excessively constrained. Laws must be given their full force and effect as long as they are not declared invalid. Thus it is only in the event of conduct that is clearly wrong, in bad faith or an abuse of power that damages may be awarded (Crown Trust Co. v. The Queen in Right of Ontario(1986), 26 D.L.R. (4th) 41 (Ont. Div. Ct.)).
[12] Thus, if Zündel is to have a sustainable claim for damages against the Crown, whether or not Re Charkaoui is upheld of overturned by the Supreme Court of Canada, Zündel must demonstrate in his Statement of Claim that the actions of the Crown, as against him, in implementing the provisions of IRPA were "clearly wrong" or "in bad faith" or "an abuse of power".
[13] The Amended Statement of Claim alleges, in paragraph 2 that a security certificate issued by the Minister and Solicitor General as a result of which proceedings as to the reasonableness of the certificate were instituted in the Federal Court. Paragraph 14 of the Amended Statement of Claim states that the reasonableness of the certificate was upheld. Thus there is nothing "clearly wrong" as to the actions taken in respect of the certificate.
[14] Paragraph 1(b) of the Amended Statement of Claim and paragraph 15 thereof state that Zündel was deported to Germany under the provisions of IRPA. Sections 46(1)(c), 49(1)(a) and 48(2) provide that once a removal order is made the affected person must leave Canada immediately and that the order must be enforced as soon as reasonably practicable. There was nothing "clearly wrong" in the prompt deportation of Zündel.
[15] Were the acts of detention or deportation done "in bad faith" or as "an abuse of power". Zündel in paragraphs 16 and 17 of his Amended Statement of Claims says:
16. In fact, at every turn of the proceedings, the defendant has deliberately or negligently used every means to do the following:
(a) frustrate all the efforts Mr. Zundel made to seek adjudication on the merits the constitutionality of the legislation at issue by any court of law; and in the meantime, it
(b) imposed the effect of such legislation on Mr. Zundel, such as deportation, with undue haste.
17. The defendant did so with full knowledge or with callous disregard that the reasonably foreseeable consequence of their actions above would be to cause Mr. Zundel colossal damages arising from his hasty deportation which can neither been mitigated against nor reversed. The deportation has cost him damages including loss of his freedom and loss of his right to reside in Canadaand all the benefits and privileges incidental thereto.
[16] Merely to use adverbs and adjectives such as "deliberately or negligently" or "callous disregard" does not constitute a proper pleading as to bad faith or abuse of power.
[17] In considering Zündel's pleading as to his complaint with respect to the activity of the Crown one looks first to paragraph 12 where he pleads that he asked the Crown to postpone his deportation until the Supreme Court has considered the constitutionality of the relevant IRPA provisions. No duty of the Crown to do so has been pleaded and nothing in the pleadings demonstrate such a duty. A general plea of a "duty of care and good faith" in paragraph 23 is unsupported. No legal foundation has been pleaded or shown.
[18] Similarly on examination of the balance of the pleadings relevant to this issue, paragraphs 16 through 23 simply recite the vigorous litigation that has taken place between the parties. There is no plea that an illegal or improper activity on behalf of the Crown took place. At best it is pleaded for example, that the Crown "could have co-operated" (paragraph 18) and that it "changed its position" (paragraph 22). No specific duty is pleaded nor has any been shown to exist.
[19] Thus it is clear, beyond a doubt, based on the pleadings alone, that Zündel has no claim for damages against the Crown, whether or not the relevant provisions of IRPA are held to be valid by the Supreme Court of Canada. They were valid at the time of enforcement and the enforcement thereof has not, based on the pleadings alone, been shown to have been clearly wrong or in bad faith or an abuse of power. Thus the claim for damages as set out in paragraph 1(c) of the Amended Statement of Claim must be struck out without leave to amend.
[20] Paragraphs 1(a) and (b) ask for a declaration that certain provisions of IRPA are invalid having regard to the Charter and that Zündel's confinement and deportation were unlawful and unconstitutional. Is there any point to such declarations given that Zündel has no claim for damages and is not claiming any other relief that might arise as a result of such a declaration?
[21] The Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 has stated that the Court should not hear constitutional challenges, on the basis of mootness, where events have occurred to affect the relationship between the parties such that there is no practical effect of such decision. That is the case here. Sopinka J. for the Court said at page 353:
Mootness
15 The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.
16 The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.
Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 reaffirms the point that the conservation of scarce judicial resources warrants only those cases being heard that raise important issues that would otherwise evade review (para 20).
[22] Are there any circumstances warranting the Court to consider such declarations nonetheless? The answer is no. The Supreme Court of Canada is already considering the validity of the provisions of IRPA in Re Charkaoui as well as in at least one or two other cases. There is no point in expending judicial resources on a redundant challenge in this case.
[23] Therefore paragraphs 1(a) and (b) of the Amended Statement of Claim will be struck out without leave to amend. This leaves nothing, therefore the whole of the Amended Statement of Claim will be struck out, without leave to amend.
ISSUE #2 - Res Judicata or Abuse or Process
[24] While not essential in view of the findings in respect of Issue #1, the parties have argued whether the action should be struck as being res judicata or an abuse of process, and it is appropriate to address these arguments.
[25] The argument for the Crown in this respect is that Zündel had his day in Court in Ontario and lost, he was told to go to the Federal Court. In the Federal Court, the Crown argues, Zündel had every opportunity to raise his constitutional issues but did not do so, choosing instead, to institute this action. That, the Crown says, is either a matter that "ought to have been raised" in the proceedings before Justice Blais and thus the determination of Blais J. upholding the certificate is res judicata or, that Zündel engaged in forum shopping to an extent that constitutes an abuse of process.
[26] There has been much debate as to whether a designated Judge who is reviewing a certificate such as that at issue here, also has jurisdiction to consider issues as to validity of the relevant IRPA provisions. The Federal Court of Appeal in Re Charkaoui 2004 F.C.A. 421 referred to this debate in paragraph 54 of its Reasons:
[54] There was for a long time a passionate debate in this Court over the appropriate procedure for challenging the constitutionality of a statute. The decision of Rothstein J. in Singh, supra, is one such illustration. While there was no dispute that an action was an appropriate vehicle, there was no consensus as to whether an application for judicial review might be as well, which meant that counsel, as in Singh, had to show some imagination. The debate was definitively decided in Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404 (C.A.) and in Moktari v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 341 (C.A.): the Court also has jurisdiction to hear constitutional challenges of statutory provisions in the context of a judicial review proceeding.
[27] The Federal Court of Appeal in that decision, however, determined that while the commencement of an action for determination of such issues is "still a possible procedure", it is not perfect. At paragraph 61:
[61] The respondents propose, essentially, that the procedure be the one taken in Ahani and Baroud: while the designated judge considers informally and expeditiously the reasonableness of the certificate and the reasons for detention, another judge of the Court, in the context of an action, should consider the constitutional questions raised by the individual concerned. This is still a possible procedure, but in itself it is not perfect. It entails a duplication of proceedings and will not necessarily result in any real saving of time since, as happened in Ahani, the execution of the removal order was stayed by the Minister until final judgment was rendered on the constitutional questions. The procedure taken in the case at bar, subject of course to the acquiescence of the parties and the judge, has reduced the paperwork and the costs, facilitated the hearing of the constitutional arguments (since the judge need not be apprised of the factual basis of the case or the requirements peculiar to national security cases), and let the Court of Appeal itself decide whether it was necessary to stay the review of the reasons for detention pending the appeal, which it has agreed to do in this case but to which it might not have agreed.
[28] In the present circumstances Justice Blais himself in Re Zundel 2004 F.C. 198 at paragraph 33 said:
"This Court was the proper forum for hearing constitutional challenges."
[29] The Ontario Court of Appeal in R. v. Zundel [2004] O.J. No. 2087 at paragraph 10 said:
10 In this case, the appellant filed a Notice of Constitutional Question with the Federal Court in May 2003, but he subsequently withdrew that Notice. He has never brought a motion before Blais J. to attempt to raise the constitutional issues. In our view, the comments made by Blais J. during the hearing do not establish that he would refuse to entertain such a motion, should it be brought.
[30] Justice Benotto in her Reasons in the court below recited the stated rationale for Zündel to go to the Ontario Courts in R. v. Zundel [2003] O.J. No. 4951 at paragraph 10:
10 Mr. Zundel's counsel argues that the Federal Court is less advantageous largely due to the length of time involved in the process. He points to the fact that the review is not yet completed and more than six months has elapsed. He states that the constitutional issues will take years to get to trial. He has submitted evidence showing that the average case takes over five years to get to trial.
[31] Thus, procedurally, although invited to raise constitutional issues before Justice Blais, and it has been held to be proper to do so, Zündel has the option to proceed by way of this action instead. Is he bound by res judicata or abuse of process from doing so?
[32] It is clear from the extensive litigation that has gone on between Zündel and the Crown that he is no stranger to procedures and strategies however, just as this Court will not treat unrepresented litigants or poorly represented litigants more leniently, the Court should not treat an astute or well represented litigant more harshly. Zündel cannot be condemned for not having taken a step at a time when it was still procedurally problematic.
[33] The Constitutional issues raised by Zündel have not been decided against him or for him by any Court. He had an option of raising those issues by way of action and, at the latest possible moment took it. Zündel has certainly frustrated the Crown in employing the tactics that he has, but is he barred by res judicata or abuse of process? In Toronto(City) v. CUPE, [2003] 3 S.C.R. 77 Arbour J, for the majority said at paragraphs 50 to 53:
50 It has been argued that it is difficult to see how mounting a defence can be an abuse of process (see M. Teplitsky, "Prior Criminal Convictions: Are They Conclusive Proof? An Arbitrator's Perspective", in K. Whitaker et al., eds., Labour Arbitration Yearbook 2001-2002 (2002), vol. I, 279). A common justification for the doctrine of res judicata is that a party should not be twice vexed in the same cause, that is, the party should not be burdened with having to relitigate the same issue (Watson, supra, at p. 633). Of course, a defendant may be quite pleased to have another opportunity to litigate an issue originally decided against him. A proper focus on the process, rather than on the interests of a party, will reveal why relitigation should not be permitted in such a case.
51 Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.
52 In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that [page110] from the system's point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.
53 The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55).
[34] Justice Lemieux of this Court made an excellent review of the law concerning res judicata and abuse of process in Novartis Pharmaceuticals Canada Inc. v. RhoxalPharma Inc., July 3, 2002, 2002 F.C.T. 742. Authorities in this Court, the House of Lords and the Ontario Court of Appeal were canvassed. At paragraph 34 of his Reasons he summarized:
34 As I see it, the case law has established the following parameters surrounding the doctrine of abuse of process:
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it is a flexible doctrine, not limited to any set number of categories;
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its purpose is a public policy one used to bar proceedings that are inconsistent with that purpose;
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its application depends on the circumstances and is fact and context driven;
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its aim is to protect litigants from abusive, vexatious or frivolous proceedings or otherwise prevent a miscarriage of justice.
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[35] In the present case, Zündel has exercised the options open to him, not choosing what the Crown might have chosen, but nonetheless choosing an option which even at the very last moment, was open to him. Procedurally it nudges up against sharp dealing but falls short of an abuse of process. In this case there was some but not much doubt as to whether Justice Blais had jurisdiction to hear constitutional challenges. An action was a sure thing procedurally as far as those challenges were concerned and it was safe for Zündel to do so.
[36] Thus, on the procedural gamesmanship issue alone there is no basis for striking out the Amended Statement of Claim.
ISSUE #3 - Stay
[37] As is apparent from the discussion in respect of Issue #1 it does not matter what the ultimate decision of the Supreme Court of Canada in Re Charkaoui might be, Zündel has demonstrated no cause of action. There is, therefore, no point in ordering a stay until that determination has been made.
IN CONCLUSION
[38] In conclusion, the Amended Statement of Claim is struck out, without leave to amend. The Defendant shall have its costs to be assessed on a Column IV basis as this motion was somewhat more difficult than most.
"Roger T. Hughes"
Toronto, Ontario
November 29, 2005
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