Khairy v. Canada (Minister of Foreign Affairs and International Trade), 2004 FC 1466

                                                                                                                                 Date: 20041022

                                                                                                                               Docket: T-300-04

                                                                                                                      Citation: 2004 FC 1466

Ottawa, Ontario, Friday, this 22^nd day of October 2004

PRESENT:    MADAM PROTHONOTARY MIREILLE TABIB

BETWEEN:

                                              SALAH ELDIN MOHAMED KHAIRY

                                                                                                                                              Plaintiff

                                                                        - and -

                                     CANADA (MINISTER OF FOREIGN AFFAIRS

                                                AND INTERNATIONAL TRADE),

                                       THE ATTORNEY-GENERAL OF CANADA,

                                DERRICK STEWART AND JEAN-MARC LESAGE

                                                                                                                                      Defendants

REASONS FOR ORDER AND ORDER

TABIB P.

[1]          The Plaintiff sues the Crown for the stress, suffering and expenses he incurred in attempting to protect his daughter from a plan elaborated by his ex-wife to abduct his daughter from their country of residence, the United Arab Emirates ("UAE") to Japan, in breach of a custody order of the UAE Courts prohibiting travel of the child with any one single parent. The Plaintiff, having learned of the plan, himself removed his daughter to Egypt in order to foil the plan. The plan, needless to say, was not executed; the child has however been living in Egypt since 2001, separated from her father who still works in the UAE and must travel to see his daughter; the custody dispute between the Plaintiff and his ex-wife is winding its way through the UAE appeal process.

[2]          The Crown, says the Plaintiff, is liable for his loss because a consular official in the UAE and an official of the Department of Foreign Affairs and International Trade ("DFAIT") in Ottawa, knowing the details of the ex-wife's plan and that it was "illegal", nevertheless helped and assisted her in her endeavour. At the same time, these officials failed to assist the Plaintiff or even reply to his requests for information or assistance.

[3]          The Crown's servants, in so doing, are alleged to have acted contrary to or breached Canada's obligations under several international conventions and bilateral agreements and violated UAE laws. The conduct of the Crown's servants is also said to constitute a tort, to amount to a conspiracy against the Plaintiff, and/or to have breached the Plaintiff's fundamental rights as protected by section 7 of the Charter of Rights and Freedoms.

[4]          The Defendant brings this motion to strike the Plaintiff's statement of claim as disclosing no reasonable cause of action or, alternatively, for particulars to be given as to certain paragraphs of the statement of claim.

[5]          The difficulty with the Plaintiff's statement of claim is that it provides no details of the actual steps and actions which the two officials took or agreed to take to assist the Plaintiff's ex-wife. There are no allegations that any of the actions taken, or proposed to be taken by consular or DFAIT officials were, in and of themselves, illegal, improper, negligent, unauthorized, or that they exceeded or abused their positions or powers. Indeed in the course of argument, the Plaintiff's counsel did not submit that the officials' actions or proposed actions were, of themselves, unlawful. Rather, the unlawfulness or illegality of the officials' actions appears to rest solely on the allegations that they were made or offered with the knowledge or intent of assisting an abduction, that this conduct flies in the face of Canada's international commitment to put an end to international child abductions and was of a nature to cause foreseeable harm to the Plaintiff. I have excerpted and set out in annexe to these reasons the allegations touching specifically on the Crown's servants' actions. In essence, the material facts pleaded in the statement of claim are the following:^[1]

1.       Under a UAE Court order, the Plaintiff's ex-wife was prohibited from travelling alone with the couple's daughter.

2.       The Plaintiff's ex-wife disclosed in full details to the Canadian officials her plans to remove her daughter from the UAE to Japan, and that this was illegal. The statement of claim is lavish as to the details of the ex-wife's plans.

3.       The Canadian officials advised that they would do "everything in their power" to help. No details are given as to what concrete steps this promise implied.

4.       The Canadian officials "discussed" the plan. No details are given as to the general tenor of these discussions.

5.       The Canadian officials failed to inform the Plaintiff, the UAE authorities or Egyptian authorities of the plan, and specifically refused to inform the Plaintiff of the matter when asked.

6.       The Canadian officials failed to provide assistance to the Plaintiff and to support him when requested to do so. The nature of the assistance requested and withheld is not specified.

7.       The Canadian officials "proceeded with the plan"; "helped" and "assisted" the ex-wife with her plan; "acted" and "conspired"; "coordinated their assistance". No indication is given as to the nature of any action actually taken, or intended to be taken.

8.       The Canadian officials had illegal, secret contacts with the Plaintiff's lawyers in the UAE, without his knowledge or consent, for the purpose of obtaining information on him. Whether these contacts elicited information, and whether it was used and to what effect is not specified.

[6]          Further distilled, any cause of action pleaded against the Defendant would be founded on the following acts or omission:

-         Failure to inform.

-         Failure to provide consular assistance.

-         Promising assistance and providing assistance to a third person with the knowledge that the assistance would further an illegal act and cause harm to the Plaintiff.

-         Unlawfully communicating with the Plaintiff's counsel in secret and without consent.

[7]          The fourth and last "wrongful" act can briefly be dealt with. The statement of claim does not set out or claim in any way that the contacts made to the Plaintiff's counsel in the UAE caused him any harm or damage or contributed in any way to the damages he suffered. It is trite law that unlawful conduct cannot form the basis of a right of action without damages or without a specific statutory provision allowing compensation in the absence of damages. No such statute has been pleaded. I am therefore satisfied that it is clear and obvious that no reasonable cause of action is disclosed in the statement of claim arising from the allegations that DFAIT officials had secret and unauthorized discussions with the Plaintiff's UAE lawyers.

[8]          While the causal link between the three remaining wrongful acts or omissions and the damages alleged may, in some instances, appear somewhat tenuous, there are sufficient allegations of damages and of a causal link to warrant further analysis as to whether the alleged acts or omissions disclose a reasonable cause of action.

Breach of statutory duty

[9]          The way in which the allegations of the statement of claim are framed and structured speak primarily to an action for breach of statutory duty.

[10]      The law as to the existence of a civil cause of action for breach of statutory duty has been clearly set out by the Supreme Court in [1983] 1 S.C.R. 205">Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205: There is no nominate tort of statutory breach giving a right to recovery merely upon proof of breach and damages. Any civil consequence of a breach of statute is subsumed in the law of negligence. While the statutory formulation of a duty may afford a specific and useful standard of reasonable conduct, and while proof of statutory breach may be evidence of negligence, a common law duty of care together with a failure to take care or negligence must be alleged and proven.

[11]      Of course, where a civil right of recovery is clearly provided by statute, an action may be maintained in accordance with statute. But that is not the case here. None of the international conventions or agreements pleaded, nor the legislation enacting some of these conventions into domestic law provide for a civil remedy.

[12]      Furthermore, no positive statutory duty is imposed on Canada or on the officials named by any of the conventions or statutes pleaded.

[13]      Two of the international conventions or agreements pleaded have not been implemented into domestic legislation (the Canada-Egypt Bilateral Agreement^[2] and the Convention on the Rights of the Child, 1992 Canada Treaty Series No. 3), and therefore cannot confer rights or obligations on individuals (R. v. Vincent (1993), 12 O.R. (3^d) 427 and Re Vincent and Minister of Employment and Immigration (1983), 148 D.L.R. (3d) 385).

[14]      Article 41 of the Vienna Convention on Diplomatic Relations, on which the Plaintiff relies, has specifically been left out of the legislative implementation of that convention by the Foreign Missions and International Organizations Act, 1991 S.C. c. 41, section 3.

[15]      The Hague Convention on the Civil Aspects of International Child Abduction, 1983 Canada Treaty Series No. 35 (the "Convention"), on which the Plaintiff also relies, was implemented in provincial legislation. It is, however, clearly not applicable to the facts as set out in the statement of claim. Indeed, article 4 of the Convention specifically provides that it "shall apply to any child who was officially resident in a contracting state immediately before any breach of custody or access rights". The Plaintiff's daughter is stated to have been a resident of the UAE at the relevant time, and the UAE is not a contracting state. Furthermore, even had it applied, the duties stipulated by the Convention are directed solely to the Central Authorities constituted by the governments of each province under its aegis, and are essentially aimed at the return of abducted children. There are no specific nor general duties provided in the Convention to prevent the abduction of children, nor are there any duties assigned to individual federal servants or consular officers.

[16]      It therefore is clear and obvious that the statement of claim discloses no action for breach of statutory duty. The allegations of the statement of claim, even if proven, do not disclose that the actions of the Canadian officials named have breached any applicable Canadian statute. That said, the conduct alleged may well be contrary to the spirit and intent of the policies adopted and promoted by Canada in adhering to these various international treaties and conventions. To that end, the treaties and conventions may provide guidance as to the standard of reasonable conduct to be expected of the consular officials in the context of an action in negligence, but the alleged "breaches" of treaties do not of themselves give rise to a cause of action.

The tort of misfeasance in public office

[17]      While not specifically pleaded in the statement of claim or at the hearing before me, it is incumbent upon me, in considering a motion to strike on the basis that a claim discloses no reasonable cause of action, to read the statement of claim as generously as possible and determine whether the facts alleged would disclose even a "scintilla" or a "germ" of a cause of action if otherwise pleaded. I have therefore considered whether the facts alleged would give rise to an action based on the tort of misfeasance in public office.

[18]      The constituent elements of that tort have been reiterated by the Supreme Court in Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263 (at paragraph 22):

"In Three Rivers^[[3]], the House of Lords held that the tort of misfeasance in a public office can arise in one of two ways, what I shall call Category A and Category B. Category A involves conduct that is specifically intended to injure a person or class of persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff."

[19]      The Plaintiff here does allege that the Crown servants knew that their actions - or proposed course of action - would likely injure him. However, there is no allegation that the intent was specifically to cause injury to the Plaintiff (as is required for "category A") or that their actions were, to their knowledge, unauthorised, or invalid (as is required for "category B"). As mentioned above, there is no allegation that the actions proposed or carried out were unauthorised or exceeded the officials' powers. On the facts pleaded, the action cannot succeed on the basis of the tort of misfeasance in public office.

Negligence

[20]      A pleading in negligence must contain the following elements:

(a)      The claimant must suffer some damage;

(b)      the damage suffered must be caused by the Defendant;

(c)      the Defendant's conduct must be negligent, that is, in breach of the standard of care set by the law;

(d)      there must be a duty recognized by the law to avoid this damage;

(e)      the conduct of the Defendant must be a proximate cause of the loss or, stated another way, the damage should not be too remote a result of the Defendant's conduct;

(f)       the conduct of the Plaintiff should not be such as to bar recovery, that is the Plaintiff must not be guilty of contributory negligence and must not voluntarily assume the risk.

(Khaper v. Canada, [1999] F.C.J. No. 1735 at para. 19, citing Linden, Canadian Tort Law (6^th Ed. 1997) at p. 99).

[21]      The two elements in issue here are the duty of care and the negligent breach thereof. It should further be remembered that pursuant to the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s.3, the liability of the Crown in tort can arise only in respect of the tort of a servant of the Crown. Thus, the allegations of duty of care and breach of that duty must be identified to a specific Crown servant.

[22]      The statement of claim points to two possible sources of a duty of care that could be owed by the identified Crown servants: the alleged statutory duties contained in the various international conventions and agreements pleaded, and the duties of the Crown servants as consular officials.

[23]      As stated above, no statutory duties were imposed on the officials by the conventions and agreements cited. The only duty pleaded that could give rise to a viable cause of action if breached is a duty arising out of the performance of the official duties of the Crown servants.

[24]      As regards the alleged wrongful acts of failure to inform and failure to assist, the Plaintiff has not alleged the existence of any other specific duty on the Crown servants to provide information or assistance, whether in the statutes governing their conduct and duties as consular officials or by reason of an express or implied promise or representation made to him. In the same manner, regarding the "wrongful act" of promising or providing assistance to a third party, it is not clearly alleged in the statement of claim that the Crown servants owed a duty to the Plaintiff, as consular officials, or as a result of a particular relationship with him, in the treatment of requests for assistance addressed to them by third parties - such as the Plaintiff's ex-wife.

[25]      Counsel for the Plaintiff argued at the hearing, although it is not alleged as such in the statement of claim, that the Crown servants had a duty not to breach UAE law, independent of the Vienna Convention on Diplomatic Relations and the Foreign Missions and International Organizations Act. What UAE laws are the Defendants alleged to have broken? The only UAE laws alleged in the statement of claim is a law prohibiting unauthorized and secret contact with a party's lawyers, and a UAE Court order prohibiting travel of the child with a single parent. As discussed above, a breach of UAE laws prohibiting contact with lawyers would not, in this case, give rise to a cause of action. The UAE Court order, for its part, appears to contain no express obligation or prohibition directed to the Crown's servants. The Crown is not alleged to have been a party to the proceedings in which the order was issued. To the extent UAE law would include an express or implied obligation on persons not named in Court orders or not parties to a proceeding to refrain from taking steps that might lead to a breach of an order, such provision is not pleaded in the statement of claim.

[26]      The Plaintiff, in its responding motion record, argues that a relationship of sufficient proximity arose between the Plaintiff and the Crown servants from the time the Canadian Consul to the UAE advised him that DFAIT officials did not get involved in family matters, especially if there are custody issues. Whether and how this statement gave rise to a duty to inform, to assist, or to exercise care in the treatment of requests for assistance by a third party is not sufficiently articulated or pleaded in the statement of claim as presently drafted. I do, however, recognize that such an argument might reasonably emerge from the facts pleaded. If a proximity relationship were the sole element lacking from the statement of claim, I would find in these facts that "germ" or "scintilla" of a chance that a duty of care could reasonably be pleaded to allow the statement of claim to be amended.

[27]      However, even assuming that a common law duty of care arising out of a relationship of proximity could be pleaded, are the allegations of the statement of claim sufficient to establish the next constituent element of the tort of negligence: the negligence or carelessness of the Crown servants in discharging that duty? All that the statement of claim contains are bald assertions:

-         that the Crown servants failed to provide specific information; however, whether the failure was negligent or careless is not stated;

-         that the Crown servants failed to provide assistance; however, what assistance was requested and whether the failure to provide it was negligent or careless is not stated;

-         that the Crown servants undertook to do "everything in their power to help", "assisted", "helped", etc., the Plaintiff's wife; however, what form the assistance pledged or given took is not stated, let alone whether same was negligent or careless.

[28]      The blanket statement in paragraph 80 of the statement of claim that the Defendant's conduct and actions "fall well below the standard of care given by DFAIT to Canadians facing problems abroad" is not a sufficient allegation of negligence where the particular nature of the duty owed to the Plaintiff is not set out and the particular nature of the conduct is not set out (George v. Beaubien, [1997] O.J. No. 3300 (Ont. Gen. Div.)).

[29]      Accordingly, while the statement of claim alleges material facts that could give rise to a duty of care arising from the contacts between the Plaintiff and the Canadian Consul to the UAE, it is lacking in specifics as to the nature and extent of that duty, and, more to the point, it contains no material allegations of fact to support a finding of negligence or carelessness, even taking the facts alleged as being proven.

The tort of conspiracy

[30]      The absence of a cause of action in negligence does not preclude the possible existence of a cause of action in the tort of conspiracy. Indeed, the law on the tort of conspiracy has evolved to specifically cover acts done by two or more parties, which would not constitute a tort if done by either of them alone, but which are done in combination for the predominant purpose of injuring a third party. The elements of the tort of conspiracy are the following:

"(1) Whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to cause injury to the plaintiff; or

(2)       Where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely and does result."      

([1983] 1 S.C.R. 452">Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452).

[31]      Here, the statement of claim proposes a bald assertion that "The Defendants knowingly acted in ill-faith and conspired against the well being of the Plaintiff" (at paragraph 58). There is no allegation that the Crown servants' predominant purpose was to injure the Plaintiff - counsel for the Plaintiff at the hearing of the motion did not suggest there was. A reasonable cause of action based on the tort of conspiracy therefore depends on there being allegations that the Crown servants'conduct was unlawful. As discussed above, the statement of claim does not disclose any breach of statute by the Crown servants. As to common law "unlawfulness", absent specific allegations as to the nature of the acts actually carried out by the Crown servants, it is quite impossible to establish whether any of them were "unlawful".

[32]      Furthermore, the tort of conspiracy requires, beyond a mere agreement, acts done in execution of the agreement:

"Regarded as a civil tort, however, conspiracy is a highly anomalous cause of action. The gist of the cause of action is damage to the Plaintiff; so long as it remains unexecuted the agreement, which alone constitutes the crime of conspiracy, causes no damage; it is only acts done in execution of the agreement that are capable of doing that; so the tort, unlike the crime, consists not of agreement but of concerted action taken pursuant to agreement."

(Lonrho Ltd. et al. v. Shell Petroleum Co. Ltd. et al., [1982] A.C. 175).

[33]      It is therefore necessary for a statement of claim to specifically allege what actions were in fact taken pursuant to an alleged agreement. The obligation is an onerous one; the statement of claim "must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy [...]" Normart Management Limited v. West Hill Redevelopment Company Limited et al. (1998), 37 O.R. (3^d) 97 (C.A.) at p. 104).

[34]      The statement of claim as drafted is clearly inadequate in this regard. It is far too vague as to whether the Crown servants merely promised assistance to the Plaintiff's wife, whether the promised assistance was actuated, and to what extent. It is fatally silent as to any overt act having been done by any of the alleged conspirators.

Breaches of the Charter

[35]      Section 7 of the Charter provides:

"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".

[36]      The law, as it now stands, is that a breach of section 7 must be established in a two-step process: "there must first be a finding that there has been a deprivation of the right to "life, liberty and security of the person", and secondly, that that deprivation is contrary to the principles of fundamental justice." (R. v. Beare, [1988] 2 S.C.R. 387, at p. 401). The second criteria, that the deprivation be contrary to the principles of fundamental justice, has been interpreted as requiring that the individual be affected by a direct contact with the judicial system, or at the very least, with law enforcement or some threat of legal proceedings. (See for example, Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 S.C.R. 486; New Brunswick (Minister of Health and Community Services v. G.(J.), [1999] 3 S.C.R. 46; Rodriguez v. British Columbia (A.G.), [1993] 3 S.C.R. 519, and Jane Doe v. Board of Commissioners of Police for the Municipality of Metropolitan Toronto 74 O.R. (2d) 225).

[37]      Here, even if one could stretch the Plaintiff's allegation that he has been living under "tremendous" stress and is suffering from "great emotional and psychological distress" to constitute a deprivation of "life, liberty and security of the person", there simply aren't any allegations in the statement of claim to support a finding that the deprivation was contrary to the principles of fundamental justice.

[38]      I appreciate that a claim should not be struck simply because it is novel, and that the jurisprudence relating to section 7 Charter breaches is constantly evolving towards an expansion of the type of interaction with state action that engages the application of the principles of fundamental justice. Still, I cannot see how a bare assertion that section 7 rights have been breached by the unspecified actions of Crown servants, without allegations of unlawfulness or negligence, can properly form the basis of a cause of action.

Leave to amend

[39]      While I have been able to determine conclusively that the Plaintiff's claim discloses no cause of action for breach of statutory duty and is doomed to failure on that basis, the absence of a reasonable cause of action in negligence, misfeasance in public office, conspiracy, or breach of section 7 of the Charter is due more to the absence or insufficiency of material allegations of fact than to a demonstrable lack of merit. To the extent the Plaintiff were to provide details of actions and steps actually taken by the Crown servants, and then plead sufficient facts to characterize same as negligent, careless or unlawful, a reasonable cause of action in negligence, misfeasance in public office or conspiracy might emerge. I am less certain as to whether the same is possible in relation to a breach of Charter rights, but again, the statement of claim in that regard is so scant that it is impossible to devine what might be pleaded to amount to a cause of action.

[40]      Accordingly, the statement of claim is struck, but with leave to amend for the purpose of alleging the specific acts or steps taken by the Crown servants and other material facts, if any, giving rise to a cause of action in negligence, misfeasance in public office, conspiracy or breach of section 7 of the Charter. The Defendant retains the right to file a new motion, as appropriate, to strike the amended statement of claim.

                                                                       ORDER

IT IS ORDERED THAT:

1.       As per the Plaintiff's consent:

(a) Paragraphs 1a), b) and c) of the statement of claim are struck, without prejudice to the Plaintiff's right to file a new proceeding in the form of an application for judicial review.

(b) The statement of claim is struck as against the Minister of Foreign Affairs and International Trade, Derrick Stewart and Jean-Marc Lesage.

(c) Paragraphs 37 to 40, 43, 79, 82 and 83 are struck, without leave to amend.

2.       The remainder of the statement of claim is struck, with leave to amend in accordance with the within reasons, and subject to the Defendants' right to make, as may be appropriate, a motion to strike the amended proceeding.

                                                                                                                                    "Mireille Tabib"          

                                                                                                                                        Prothonotary             

                                                               Annexe "A"

                                  Excerpted portions of the Statement of Claim                      

8.     [...] Mr. Stewart [consul in UAE] indicated to the Plaintiff that the Embassy does not get involved in family matters, especially if there are custody issues [...]. Mr. Stewart also indicated to the Plaintiff that travel restrictions were imposed by the DFAIT on the travel of his daughter and on renewing her passport.

9.     Mr. Stewart never replied to the Plaintiff's letter [asking for details on the imposition of the travel restriction].

10.     [...] the Plaintiff's wife was planning to abduct the parties' daughter to Japan with the assistance of Canadian and Japanese diplomats.

11.     In her e-mails to Mr. Lesage [DFAIT, Ottawa] and Mr. Stewart, the Plaintiff's ex-wife told them about her plan [...]. [She] described the plan [...] as "illegal" [...].

14.     Mr. Lesage [...] replied [...] and indicated to her that the DFAIT will do everything in its power to assist her in her plan [...].

17.     Mr. Lesage [...] copied the e-mails he sent to the Plaintiff's wife to Mr. David Knockaert, the Canadian consul in Tokyo.

18.     [...] The questions posed by Mr. Lesage in the correspondence [with the Plaintiff's wife] indicate that the actions taken by the DFAIT depended on and were motivated by the race and religious beliefs of the Plaintiff and on the fact that the Plaintiff and his wife live in an "Arab country".

21.     [...] the Plaintiff contacted the Canadian Embassy in the UAE to ask Mr. Stewart for an explanation on the e-mail correspondence [...].

23.     [...] the Plaintiff sent many e-mails to Mr. Stewart asking for his assistance and requesting some information [...]. Mr. Stewart failed to address the Plaintiff's requests and obvious concerns.

27.     The Plaintiff [sent two further] e-mails to Mr. Stewart asking for assistance [...]. Mr. Stewart never replied to the Plaintiff.

35.     The Plaintiff [was facing a] lack of support from DFAIT and particularly, Mr. Stewart.

36.     The Plaintiff's lawyers [...] sent two letters to the DFAIT to obtain disclosure of documents [...]. The DFAIT refused to provide any details or answers to the questions [...].

41.     [...] DFAIT had secret contacts with the Plaintiff's lawyers in the UAE in order to obtain information about the Plaintiff.

42.     The Plaintiff's lawyers in Canada sent a letter to DFAIT asking for answers regarding the DFAIT's contacts with the Plaintiff's lawyers in the UAE. The DFAIT did not reply to the Plaintiff's letter.

51.     In her correspondence with Mr. Stewart, the Plaintiff's ex-wife described the plan [...] that the Canadian Embassy will issue an emergency travel document for the Plaintiff's daughter and give it to the Plaintiff's ex-wife [...] and that the diplomats [of Canada and Japan] will assist the Plaintiff's ex-wife to pass through UAE Passport and Immigration authorities.

52.     The Plaintiff's ex-wife discussed in her correspondence with Mr. Stewart whether the UAE Passport and Immigration authorities would be suspicious [...]. She also asked Mr. Stewart if UAE authorities would be suspicious [...].

53.     The Plaintiff's wife discussed in her correspondence with Mr. Stewart the security and intelligence details of her abduction plan [and] the pre-plan intelligence on evasion measures that she will carry out [..].

54.     DFAIT failed to inform the Plaintiff of his ex-wife's intentions [...].

55.     [...] the Defendants were intentionally helping the Plaintiff's wife to abduct the Plaintiff's daughter.

56.     [...] the Defendants proceeded with the abduction plan and helped the Plaintiff's ex-wife with this illegal plan.

58.     The Defendants knowingly acted in ill-faith and conspired against the well being of the Plaintiff [...].

61.     The DFAIT failed to present the Plaintiff's case to the Joint Consultative Commission as required by the Bilateral Agreement between Canada and Egypt regarding Cooperation on Consular Elements of Family Matters.

63.     The DFAIT failed to inform the Egyptian Ministry of Foreign Affairs of the intentions of the Plaintiff's ex-wife [...].

65.     [...] DFAIT coordinated its assistance with the Japanese [authorities].

71.     [...] DFAIT should have taken measures to inform the UAE authorities of the intentions of the Plaintiff's ex-wife [...] but failed to do so.

74.     [Mr. Stewart and Mr. Lesage] discussed through e-mails and telephone conversations with the Plaintiff's ex-wife activities [that were] "illegal" and violated the laws of UAE.

76.     The actions of DFAIT [...] contradict DFAIT's policy [concerning international child abductions].

77.     [...] DFAIT had secret contacts with the Plaintiff's lawyers in the UAE without the Plaintiff's knowledge or consent.

78.     The UAE laws and Ministry of Justice regulations prohibit third parties from secretly contacting lawyers representing clients without the knowledge or consent of clients.

80.     The assistance given by the DFAIT to the Plaintiff's ex-wife [...] violated the Plaintiff's [section 7 Charter rights].

81.     The continuous refusal by the DFAIT to help the Plaintiff in the UAE, the actions of the DFAIT with regards to its failure to disclose crucial evidence and the behaviour of the DFAIT employees with regard to the Plaintiff fall well below the standard of care given by the DFAIT to Canadians facing problems abroad.

                                                             FEDERAL COURT

                           NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-300-04

STYLE OF CAUSE:                            Salah Eldin Mohamed Khairy

v.

Canada (Minister of Foreign Affairs and International Trade), The Attorney-General of Canada, Derrick Stewart and Jean-Marc Lesage

PLACE OF HEARING:                        Ottawa, Ontario

DATE OF HEARING:                          September 14, 2004

REASONS FOR ORDER

AND ORDER:                                       Madam Prothonotary Mireille Tabib

DATED:                                                 October 22, 2004

APPEARANCES:

Edward C. Conway                                                                   FOR PLAINTIFF

Karine J. Devost

John S. Tyhurst                                                                          FOR DEFENDANTS

Ramona Rothschild

SOLICITORS OF RECORD:

LEWIS LANGEVIN LLP                                                         FOR PLAINTIFF

Ottawa, Ontario

MORRIS ROSENBERG                                                         FOR DEFENDANTS

Ottawa, Ontario