Docket: T-462-20
Citation: 2022 FC 310
Ottawa, Ontario, March 7, 2022
PRESENT: The Honourable Mr. Justice Pamel
| BETWEEN:
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| AHMED MOHAMED ABDI
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| Plaintiff
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| and
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| HER MAJESTY THE QUEEN IN RIGHT OF CANADA
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| Defendant
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ORDER AND REASONS
I.
Background and context
[1] This is a motion in writing by the Attorney General of Canada [Attorney General], on behalf of the defendant pursuant to sections 213 and 369 and subsections 221(1) and 215(1) of the Federal Courts Rules, SOR/98-106 [FCR], to strike without leave to amend or, alternatively, dismiss summarily the claim set out in the plaintiff’s statement of claim alleging a number of causes of action under various heads of damage against Her Majesty the Queen in Right of Canada [Her Majesty] resulting from the manner in which Immigration, Refugees and Citizenship Canada [IRCC] dealt with the plaintiff, Mr. Ahmed Mohamed Abdi, and his wife in respect of their immigration file [underlying claim].
[2] Mr. Abdi is a Canadian citizen of Somali origin and the husband of Asli Xasan Cusmaan [Ms. Cusmaan], a citizen of Somalia living in Egypt at the relevant time. On June 25, 2014, Mr. Abdi filed a sponsorship application and undertaking of support in relation to Ms. Cusmaan, who, on the same day, applied for permanent residence as a member of the family class. On February 22, 2015, as part of the processing of her application for permanent residence, an IRCC visa officer [visa officer] interviewed Ms. Cusmaan at the Canadian Embassy in Cairo. The interview, during which questions were asked of Ms. Cusmaan by the visa officer to assess, amongst other things, the genuineness of the marriage, was conducted with the assistance of an interpreter. The visa officer’s notes were inserted into IRCC’s Global Case Management System [GCMS].
[3] The GCMS notes indicate that the visa officer asked Ms. Cusmaan about a number of issues, including how she met Mr. Abdi, details of their marriage, their compatibility, their communications, and what she knew about Mr. Abdi’s life. Ms. Cusmaan’s responses did not satisfy the visa officer’s concerns regarding the genuineness of the marriage and, on March 1, 2015, her application for permanent residence was denied [the visa officer’s decision]; Mr. Abdi appealed the visa officer’s decision to the Immigration Appeal Division [IAD]. Following a two-day hearing during which Mr. Abdi, Ms. Cusmaan and two witnesses who were present at the wedding gave evidence and were cross-examined by opposing counsel, the IAD dismissed Mr. Abdi’s appeal on May 25, 2017 [IAD decision]. In its decision, the IAD highlighted a number of inconsistencies in the evidence as well as vagueness about what it found to be key points relating to the genuineness of the marriage. In the meantime, Mr. Abdi had also filed a complaint to the Canadian Human Rights Commission [CHRC] on August 11, 2016, regarding the visa officer’s decision; the complaint was dismissed by the CHRC on June 14, 2017, pursuant to paragraph 41(1)(b) of the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA] – the complaint was one that could more appropriately be dealt with according to a procedure provided for under an Act of Parliament other than the CHRA.
[4] On May 2, 2018, this Court allowed Mr. Abdi’s application for judicial review of the IAD decision. Although the Court did not find any breach of procedural fairness or breach of Mr. Abdi’s or Ms. Cusmaan’s rights under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] – as pleaded by Mr. Abdi – the Court nonetheless took issue with several of the IAD’s findings which led to the conclusion that the marriage was not genuine; in particular, the Court determined, contrary to the IAD’s finding, that Mr. Abdi’s testimony was not vague as regards his future plans should Ms. Cusmaan come to Canada and that the IAD had misapprehended or mischaracterized the evidence and failed to consider the totality of the evidence in reaching its conclusions. The Court therefore quashed the decision and remitted the matter back to the IAD for redetermination by a new panel (Abdi v Canada (Citizenship and Immigration), 2018 FC 475 [Abdi]). However, in a section of the decision entitled “Obiter”, the Court felt compelled to remark on two specific concerns it had regarding the treatment Mr. Abdi has received in his request to sponsor Ms. Cusmaan; the Court raised concerns regarding what it found to be undue suspicion with which the IAD and the Canadian Embassy official treated Mr. Abdi, unreasonably assigning motives to him that have no basis in the evidence, as well as the bald assertion of the visa officer, who suspected that Mr. Abdi had “made an arrangement with [Ms. Cusmaan’s] family to get her into Canada”
. In addition, the Court took exception to the language and approach used by the visa officer and the IAD in respect of the 22-year age gap between the couple and the question of whether the couple wanted children (Abdi at paras 41-45). After setting out its concerns, the Court stated that “it is uncontroversial to assert that in modern Canadian society, couples are to be accepted regardless of differences in race, gender, social status or other differences” (Abdi at para 44).
[5] On January 3, 2019, the IAD allowed Mr. Abdi’s appeal on redetermination, concluding that the marriage between him and Ms. Cusmaan was in fact genuine, although the IAD commented that its conclusion was “not to say the evidence [was] clear and unequivocal.”
It noted a continued “lack of clarity about how the relationship developed”,
limited interaction between the spouses prior to marriage, and non-determinative inconsistencies in the evidence. The IAD also noted that Mr. Abdi’s “argumentative nature interfered with his own interests in terms of the evidence”
and that his “argumentative presentation and his resistance to providing evidence in a straightforward and fulsome way created challenges that have, ultimately, prevented a seamless processing of this sponsorship application”
. Notwithstanding the expressed concerns, the IAD nonetheless concluded, on a balance of probabilities, that the marriage was genuine and allowed the appeal; on September 15, 2019, Ms. Cusmaan arrived in Canada as a permanent resident, over five years following Mr. Abdi’s initial sponsorship application.
[6] It would seem that the manner in which he perceived that he and his wife were treated throughout the immigration process may have caused Mr. Abdi some form of emotional or psychological distress. The evidence before me includes letters from Mr. Abdi’s family doctor and several psychologist reports, dated after this Court’s decision in Abdi, setting out that Mr. Abdi had experienced some adverse changes to his health, either to do with or exacerbated by his recent stresses surrounding his attempt to sponsor Ms. Cusmaan, that he was feeling worthless and stressed and was suffering from depression and anxiety on account of feeling that his rights had been violated. One of the psychologists suggested that further long-term counselling would benefit Mr. Abdi.
[7] As matters turned out, seven months after Ms. Cusmaan’s arrival in Canada, on April 9, 2020, Mr. Abdi instituted proceedings and filed with this Court the underlying claim seeking the following relief – it should be kept in mind that Mr. Abdi is a self-represented litigant whose first language is not English:
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a declaration that the Defendant, referred to as the Canada Immigration and Citizenship, owed to violation of [Charter], statutory and common law duties to the plaintiff;
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a declaration that Canada Immigration and Citizenship deprived me rights under the [Charter];
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a declaration that Canada Immigration and citizenship violated section 24(1) of the [Charter];
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a declaration that Canada Immigration and citizenship is liable to the plaintiff for damages by its decisions which violated constitutional, statutory and common law duties;
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non-pecuniary general damages arising from Canada Immigration and citizenship violation constitutional, statutory and common law duties in the amount of $25,000,000;
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pecuniary damages arising from Canada Immigration and citizenship its violation to constitution, statutory, and common law duties, the pain and suffering, health damages;
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such monetary award above or in alternative to damages at common law as is necessary to vindicate the Charter Rights;
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prejudgment and post judgment interest;
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costs, including, a Charter Remedy in the nature of an award of costs at full indemnity;
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seeking a further remedy on the order of this Honourable Court to the plaintiff consequential treble damages as just and appropriate in the circumstance.
[8] Mr. Abdi does not hide the fact that he is basing the underlying claim on his reading of the findings and conclusions of this Court in Abdi. In fact, in reviewing his response to the present motion, it seems to me that Mr. Abdi is under the mistaken belief that this Court’s decision in Abdi is conclusive on liability on the part of the defendant, and therefore any refusal to pay damages or settle the underlying claim is tantamount to contempt of court. Mr. Abdi’s statement of claim alleges intentional misrepresentation, bad faith, defamation, misconduct, abusive behaviour, prejudice, deliberate intent to deny procedural fairness and malice on the part of the visa officer and the IAD, and is replete with quotes from the decision in Abdi, which Mr. Abdi asserts is conclusive evidence of his allegations. In addition, Mr. Abdi also alleges that the Prime Minister and four unidentified Cabinet ministers were negligent in failing to “stop intentional tort that denied [him] procedural fairness and [he] suffered six years.”
Mr. Abdi also claims that “[t]he government intentionally ignored [his] grievance and failed to protect [his] constitutional rights in the charter.”
[9] Amongst the various arguments in support of the present motion, the Attorney General argues that the underlying claim is based on assumptions and speculation and is deficient in material facts to support a reasonable cause of action. To be fair to Mr. Abdi, I should also mention that in addition to his statement of claim, Mr. Abdi served the defendant with a 155‑paragraph affidavit with exhibits [additional affidavit] dated August 12, 2020, where he cites at length additional excerpts from this Court’s decision in Abdi purportedly concluding that his Charter rights were violated, in particular:
. . .
12. The grounds of this lawsuit based on the Federal Court decision [in Abdi]. Based on findings of the Federal Court decision dated May 2, 2018, that IRCC has breached my rights under [the Charter], specifically with respect to ss. 6(1), 7, 15(1) 24(1) 24(2);
. . .
26. As the Federal Court concluded its decision on May 2, 2018, IRCC misconduct and wrongful decisions dated April 1, 2015 and May 25, 2017, IRCC violated my constitutional rights guaranteed by [the Charter]; s. 6(1), 7, 15(1) 24(1) 24(2);
. . .
73. Based on findings [in Abdi], court concluded IAD created mischaracterization and misapprehension, as excuse to treat me differently and denied me fairness. The IAD Act to treat me differently and deny me fairness violated my constitutional rights guaranteed by [the Charter], s. 7, 15(1) . . . ;
74. Based on findings [in Abdi], court concluded that I was treated differently and denied fairness because issues of having children or not. IAD Act constitutes discrimination of family status prohibited in the charter section 15(1) . . . ;
75. Federal Court concluded that I was denied a right to fair and impartial decision making. Because the IAD failed entirely to take account all crucial relevant evidence, for this reason I was denied procedural fairness, as Federal Court concluded in its decision dated May 2, 2018. IAD acted to deny my right to fair and impartial decision making violated my Charter’s rights guaranteed: Part One of [the Charter], s. 7, 15(1) 24(1) 24(2). . . . ;
76. Federal Court concluded again that IAD disregarded all crucial relevant evidence that I submitted to IAD. IAD acts of denying me fair representation constitutes differential treatment and that violated my rights guaranteed under Part One of [the Charter], s. 7, 15(1) 24(1). . . . ;
. . .
78. Federal Court established its decision dated May 2, 2018, that IAD ruined my future plans and intentionally mischaracterized and misapprehended to denied [sic] me fairness and equality. . . .
. . .
80. As Federal Court concluded in its decision on May 2, 2018, that Both IAD and Canadian Embassy official fabricated false unfound [sic] the undue suspicion to deny me fairness. IAD treated me differently and denied procedural fairness because my real purpose going to Africa in January, 2014, was to see my father and not my wife, Ms. Cusmaan. These unfounded, vicious slander and malicious allegations fabricated by the IRCC officials, of which I was treated differently and denied justice, violated my constitutional rights under [the Charter]; s. 7, 15(1) 24(1);
. . .
83. Exclusion of evidence 24(2): As the Federal Court concluded I have been treated differently and denied fairness. The court established that IRCC deliberately created false, unfounded, vicious and malicious suspicions and aspersion to deny me justice. . . . IAD’s refusal to consider the relevant evidence and its unfounded suspicion and aspersions with misconduct and wrongful decision to deny me procedural fairness, violated my constitutional rights guaranteed under Part One of [the Charter], s. 7, 15(1) 24(1) and 24(2);
. . .
[10] The Attorney General filed his statement of defence on July 14, 2020. On September 18, 2020, Mr. Abdi wrote an eight-page letter to the Prime Minister setting out the emotional trauma he experienced on account of what he claims was the denial of his fundamental rights, urging the Prime Minister to settle the underlying claim out of court. His letter to the Prime Minister contends, amongst other things, that defence counsel during the hearing in Abdi somehow challenged his constitutional rights by arguing the reasonableness of the IAD decision and that this somehow “demonstrates how government officials are racist.”
II.
Analysis
[11] To survive a motion to strike under subsection 221(1) of the FCR, the underlying claim must set out the necessary elements of a recognized cause of action as well as a concise statement of the material facts to support each element (section 174 of the FCR; Naqvi v Canada, 2017 FC 1092 at para 8 [Naqvi]). What constitutes a material fact is determined in light of the cause of action and the damages sought to be recovered (Mancuso v Canada (National Health and Welfare), 2015 FCA 227 at para 19 [Mancuso]). In addition, the material facts pleaded must be read generously and assumed to be true for the purposes of the motion to strike (Condon v Canada, 2015 FCA 159; Apotex Inc v Allergan, Inc, 2011 FCA 134 at para 2).
[12] Any pleading of misrepresentation, fraud, malice or fraudulent intent must provide particulars of each and every allegation; bald allegations of bad faith, ulterior motives or ultra vires activities are both “scandalous, frivolous and vexatious”
and an abuse of the process of this Court (Merchant Law Group v Canada (Revenue Agency), 2010 FCA 184 at paras 34 and 35 [Merchant Law Group]). As stated by the Federal Court of Appeal in Merchant Law Group, unsupported conclusions and speculative accusations are an abusive and impermissible “fishing expedition”:
[34] . . . When pleading bad faith or abuse of power, it is not enough to assert, baldly, conclusory phrases such as “deliberately or negligently,” “callous disregard,” or “by fraud and theft did steal”: Zundel v. Canada, 2005 FC 1612, 144 A.C.W.S. (3d) 635; Vojic v. Canada (M.N.R.), [1987] 2 C.T.C. 203, 87 D.T.C. 5384 (F.C.A.). “The bare assertion of a conclusion upon which the court is called upon to pronounce is not an allegation of material fact”: Canadian Olympic Association v. USA Hockey, Inc. (1997), 1997 CanLII 5256 (FC), 74 C.P.R. (3d) 348, 72 A.C.W.S. (3d) 346 (F.C.T.D.). Making bald, conclusory allegations without any evidentiary foundation is an abuse of process: AstraZeneca Canada Inc. v. Novopharm Limited, 2010 FCA 112 at paragraph 5. If the requirement of pleading material facts did not exist in Rule 174 or if courts did not enforce it according to its terms, parties would be able to make the broadest, most sweeping allegations without evidence and embark upon a fishing expedition. As this Court has said, “an action at law is not a fishing expedition and a plaintiff who starts proceedings simply in the hope that something will turn up abuses the court’s process”: Kastner v Painblanc (1994), 58 C.P.R. (3d) 502, 176 N.R. 68 at paragraph 4 (F.C.A.).
[13] Before reviewing the elements of the underlying claim, I first wish to address what seems to be Mr. Abdi’s mistaken understanding of this Court’s decision in Abdi; the decision is not confirmation of any breach of his Charter rights or the commitment of various torts, nor does it establish the underlying claim. In Abdi, this Court did not find there to be a breach of procedural fairness as asserted by Mr. Abdi, nor did it conclude that Mr. Abdi or Ms. Cusmaan were denied any rights under the Charter, that the visa officer or the IAD fabricated vicious falsehoods, or that an intentional tort was committed in respect of either of them. Nor did this Court conclude that the IAD ruined Mr. Abdi’s future plans and intentionally mischaracterized and misapprehended evidence to deny him fairness and equality. What this Court found was that the IAD’s misapprehension and mischaracterization of certain statements that were made by Ms. Cusmaan and Mr. Abdi, and its failure to consider the totality of the evidence in reaching its conclusion, were reviewable errors rendering the IAD decision unreasonable; to hold this Court’s decision in Abdi as anything more or in the manner reflected in Mr. Abdi’s pleadings is simply unsustainable. That said, there is also no doubt that this Court in Abdi felt compelled to speak out against perceived irregularities in the visa officer’s line of questioning as well as the impressions left by the IAD decision, however, such comments made in obiter in the context of an application for judicial review cannot base a claim in damages which is otherwise not made out by the pleadings. In this case, I find that Mr. Abdi, possibly inadvertently, is misconstruing the findings and conclusions of this Court in Abdi in a way that unjustifiably embellishes the underlying claim.
[14] Mr. Abdi sets out the substantive elements of his claim and the differing causes of action in several sections within his statement of claim. The sections often overlap, however I will attempt to deal with each of them separately.
(1)
Denial of Charter rights – paragraphs 4 to 8
[15] Mr. Abdi seeks damages under subsection 24(1) of the Charter for alleged breaches of his rights guaranteed by sections 6, 7 and 15 of the Charter. As determined by the Federal Court of Appeal in Mancuso, a motion to strike a Charter claim must be determined with reference to the substantive content of each Charter right alleged to have been breached (Mancuso at para 21). In addition, when dealing with Charter damages, “it should always be borne in mind that these are not private law damages, but the distinct remedy of constitutional damages”
(Vancouver (City) v Ward, 2010 SCC 27 at para 22 [Ward]). Determining whether Charter damages may be granted pursuant to subsection 24(1) requires a four-step analysis (Ward; Henry v British Columbia (Attorney General), 2015 SCC 24 [Henry]):
The claimant establishes a breach of a Charter right;
The claimant establishes that damages are a just and appropriate remedy in this case;
The state has an opportunity to establish countervailing factors, including the existence of alternative remedies particularly judicial review (Ernst v Alberta Energy Regulator, 2017 SCC 1 [Ernst]) and concerns for good governance; and
If the state fails, the court assesses the quantum for damages.
[16] The Attorney General asserts that Mr. Abdi “bears the burden of proving facts that establish that his Charter rights are implicated, and of doing so based on an actual evidentiary record”
, and that he cannot rely on mere speculation to make out a deprivation of such rights (Revell v Canada (Citizenship and Immigration), 2019 FCA 262 at para 67). Here, argues the Attorney General, there is no evidence on the record that supports finding a Charter breach. I must agree. It seems to me that it is plain and obvious that Mr. Abdi will not succeed at trial at establishing a breach of his Charter rights. The underlying claim, even read in light of the additional affidavit filed by Mr. Abdi, lacks the necessary clarity to show how his Charter rights were breached. In any event, it is clear that these claims are not founded in law. Consequently, no amendment will help cure these deficiencies because the underlying claim shows no scintilla of a cause of action.
[17] I start by saying that the fact that Mr. Abdi had recourse to judicial review is not determinative of the present motion. I appreciate that the Supreme Court in Ernst noted that immunity benefiting, in this case, the visa officer and the IAD, “strengthens public confidence in the legal system, preserves impartiality, both in fact and in perception, and closes off routes of collateral attack”
(Ernst at para 54), however, the Court also stated that the availability of judicial review is only one of the “factors that weigh heavily against the appropriateness of Charter damages awards”
(Ernst at para 41); I do not read Ernst as an absolute bar to Charter claims in such a context. The Attorney General also cites Naqvi for the proposition that the appropriate remedy for a “poorly made” decision is appeal or judicial review. I agree, however, this Court’s decision in Naqvi should not be taken for the proposition that the availability of judicial review is an automatic bar to any further claim in Charter damages. In that decision, the Court made clear that “absent an additional, wilful element of wrongdoing, such as bad faith or prejudice, a poorly-made decision does not open the door to Charter damages”
(Naqvi at para 41).
[18] The other issue that must be taken into consideration is whether wilful misconduct may be inferred from the material facts that are pleaded. As set out at paragraph 33 of Naqvi:
[33] Recently, in MacRae v Feeney, 2016 ABCA 343 [MacRae], the Alberta Court of Appeal upheld a trial judge’s decision to strike a claim for Charter damages, relying on Henry v British Columbia (Attorney General), 2015 SCC 24 for the proposition that, where a plaintiff seeks Charter damages based on a “highly discretionary decision”, an element of improper purpose, mala fides, or wilfulness must be inferable from the facts pleaded:
12 Moldaver, J writing for five members of the seven judges who heard the Henry appeal explained that “the malice standard translates awkwardly into cases where the alleged misconduct is wrongful non-disclosure.” (at para. 59) In contrast, he wrote that the wrongdoing targeted by the tort of malicious prosecution “...is the decision to initiate or continue an improperly motivated prosecution” and that because malice requires a showing of improper purpose, the “improper purpose” inquiry “is apt when the impugned conduct is a highly discretionary decision such as the decision to initiate or continue a prosecution, because discretionary decision-making can best be evaluated by reference to the decision-maker's motives.” (at para. 59)
13 In the case at bar the decision to investigate and prosecute was a “highly discretionary decision.” Neither mala fides nor wilfulness is made out on this record. We see no basis for appellate intervention.
[19] Here, the visa officer’s decision was discretionary.
(a)
Section 6 of the Charter
[20] As to subsection 6(1), Chief Justice Crampton, in the recent decision of Spencer v Canada (Health), 2021 FC 621, outlined the legal framework applicable to this section of the Charter:
[69] I recognize that an expansive approach to subsection 6(1) is consistent with the fact that it is exempt from the legislative override in section 33 of the Charter and is not subject to any limitations, such as those set forth in subsections 6(3) and 6(4): Divito v Canada (Public Safety and Emergency Preparedness), 2013 SCC 47 at para 28 [Divito]. I further recognize that “rights under the Charter must be interpreted generously so as to fulfill its purpose of securing for the individual the full benefit of the Charter’s protections”: United States of America v Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469 at 1480 [Cotroni]. At the same time, “it is important not to overshoot the actual purpose of the right or freedom in question”: R v Big M Drug Mart Ltd, 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295 at 344.
[21] In United States of America v Cotroni, [1989] 1 S.C.R. 1469 at 1482, the Supreme Court of Canada held that “the central thrust of s. 6(1) is against exile and banishment, the purpose of which is the exclusion of membership in the national community.”
Mr. Abdi’s claim regarding a breach of section 6 of the Charter is set out in paragraph 4 of his statement of claim. However, no material facts are pleaded that would support such a contention, and all that is asserted is that somehow his rights under section 6 have been breached because he did not travel outside of Canada. I must agree with the Attorney General that Mr. Abdi has simply not provided any particulars regarding when or how he was denied his right to enter, remain in, or leave Canada. What I gather from the additional affidavit is that Mr. Abdi is making reference to the concerns expressed by the visa officer and the IAD in their decisions regarding the fact that Mr. Abdi had not returned to Egypt to visit Ms. Cusmaan. Even on a generous reading of the underlying claim, I cannot see how this could support a claim for Charter damages under subsection 6(1). The fact that the visa officer or the IAD was concerned that Mr. Abdi had not visited his wife in Egypt—in the context of determining the genuineness of the marriage—does not demonstrate that Mr. Abdi was denied the right to enter, remain in, or leave Canada. In any event, it is plain and obvious that this argument cannot succeed on the merits. Paragraph 4 should be struck from the statement of claim as being frivolous.
(b)
Section 7 of the Charter
[22] Mr. Abdi’s claim regarding a breach of section 7 of the Charter is set out in paragraphs 5 and 6 of his statement of claim. He asserts that his rights to life, liberty and security were denied based upon this Court’s decision in Abdi, however, pleads no material facts in support thereof other than to say that he has been treated “differently, exclusively, unusually and unfairly.”
As was the case with his claim under section 6, Mr. Abdi’s claim under section 7 of the Charter lacks the necessary clarity and is doomed to fail on the merits. It is unclear from the underlying claim how the defendant breached Mr. Abdi’s section 7 rights and as stated earlier, this Court’s decision in Abdi does not support his assertion that such a breach took place or that the defendant is liable as a consequence thereof. The absence of material facts to support the alleged section 7 violations would be enough in itself to strike these allegations (Mancuso at para 21):
. . . The requirement of material facts applies to pleadings of Charter infringement as it does to causes of action rooted in the common law. The Supreme Court of Canada has defined in the case law the substantive content of each Charter right, and a plaintiff must plead sufficient material facts to satisfy the criteria applicable to the provision in question. This is no mere technicality, “rather, it is essential to the proper presentation of Charter issues”: Mackay v Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357 at p. 361.
[23] Moreover, an amendment would not cure these defects because the underlying claim, as far as it concerns a breach to section 7 of the Charter, shows no scintilla of a cause of action. The Court is left to piece together the issue that Mr. Abdi is purporting to raise. If the issue is one of family unity, it is well-established that family unity or family reunification through the Immigration and Refugee Protection Act, SC 2001, c 27, does not fall within the ambit of protection offered by section 7 of the Charter (Begum v Canada (Citizenship and Immigration), 2018 FCA 181 at paras 100–110). Further, immigration is a privilege that has not been elevated to the level of a right (Al Omani v Canada, 2017 FC 786 at para 105 [Al Omani]; Medovarski v Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539; 2005 SCC 51).
[24] The additional affidavit provided by Mr. Abdi includes as exhibits medical and psychological reports suggesting that he suffered anxiety and depression as a result of his sponsorship application. Therefore, if the issue is rather one of health, it is clear that stress, stigma and anxiety do not deprive one of the right to life, liberty and security of the person (Al Omani at para 105; Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44). Furthermore, as the Supreme Court stated in New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3 S.C.R. 46 at para 59:
. . . It is clear that the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action. If the right were interpreted with such broad sweep, countless government initiatives could be challenged . . . .
[Emphasis added.]
[25] I note that there is some reference in the pleadings to an issue of procedural fairness in paragraph 6 which could be considered under section 7 of the Charter (see Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 19), however, the protection of section 7 would only be triggered where “a decision-maker has a power of decision over life, liberty or security of the person”
(Peter W Hogg, Constitutional Law of Canada, 5th ed Supp (Scarborough, Ont: Thomson/Carswell, 2007) (loose-leaf updated 2021, release 1) ch 47.22) – none of which apply in this case. At this point, put simply, Mr. Abdi has not pleaded facts to establish a deprivation of his life, liberty or security in these circumstances (see Maghraoui v Canada (Citizenship and Immigration), 2013 FC 883 at para 20). Consequently, paragraphs 5 and 6 should be struck from the statement of claim as being frivolous.
(c)
Section 15 of the Charter
[26] Mr. Abdi’s claim regarding a breach of section 15 of the Charter is set out in paragraphs 7 and 8 of his statement of claim. He claims to have been denied his right to equal treatment under the law on account of his age, family and marital status, and “physical characterization”
, the whole based upon the determination by this Court in Abdi confirming that he had been discriminated against. He specifically asserts in his pleadings that the visa officer “abused, humiliated and degraded”
Ms. Cusmaan during the interview and that the “Decision maker’s intentional injustice has ruined our life and affected severely our wellbeing. As Federal Court concluded; we were treated differently and unusually and unfairly . . .”
.
[27] To demonstrate a breach of subsection 15(1) of the Charter, Mr. Abdi must address a two-step test: (i) whether the law creates a distinction based on an enumerated or analogous ground; and (ii) whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping (Naqvi at para 26; R v Kapp, 2008 SCC 41 at para 17). It should be noted that discrimination need not be intentional to constitute a breach of section 15 (Withler v Canada (Attorney General), 2011 SCC 12 at paras 29 and 31). Here, however, there are no facts to support the allegation that Ms. Cusmaan was “abused, humiliated and degraded”
. The assertion that Mr. Abdi and Ms. Cusmaan were treated “differently” stems from what seems to be a misunderstanding of the use of the word by this Court in Abdi. The Court never stated that they were treated differently, only that the differences in their age or in their attitude on the issue of having children were not issues that should reasonably have been broached by the visa officer. That is far from an assertion that because of their age, status or culture, they were treated differently by the visa officer in the sense of having been discriminated against; doubting the genuineness of the marriage because the couple was not sure whether they wanted children may have been unreasonable, but there is nothing to suggest that it may also amount to discrimination based on family status.
[28] The Attorney General argues that the visa officer and the IAD are entitled to ask questions regarding an age difference between spouses when assessing the genuineness of a marriage for a sponsorship application (Canada (Citizenship and Immigration) v Genter, 2018 FC 32 at para 14; Pabla v Canada (Citizenship and Immigration), 2018 FC 1141 at para 54; Kaur v Canada (Citizenship and Immigration), 2018 FC 657 at para 19; Khera v Canada (Citizenship and Immigration), 2007 FC 632 at para 10; Ouk v Canada (Citizenship and Immigration), 2007 FC 891 at para 13). That may be so, however, this is not where the issue lies in the present motion to strike. The question is not whether they asked appropriate questions, but whether they discriminated against Mr. Abdi in making their determination. The visa officer and the IAD may have made inappropriate statements or asked inappropriate questions, but to succeed, Mr. Abdi needs more: by more, and as held in Mancuso and Naqvi, what is required are facts which may lead to a determination of bad faith or mala fides or a determination that the visa officer intentionally refused Ms. Cusmaan her visa on account of prejudice (Mancuso at para 29; Naqvi at para 31). As highlighted in Naqvi, allegations of prejudice and intentional discrimination are rarely proven by direct evidence, however, there must nonetheless be material facts in the pleadings which may lead to the conclusion that the visa officer’s conduct was intentionally motivated by prejudice or another improper purpose (MacRae at para 13; Naqvi at para 34). We should keep in mind the statement by the Court in Henry (and reaffirmed in Ernst at para 25) that “[c]ourts should endeavour, as much as possible, to rectify Charter breaches with appropriate and just remedies. Nevertheless, when it comes to awarding Charter damages, courts must be careful not to extend their availability too far”
(Henry at para 91). Here, other than reference to this Court’s decision in Abdi, which I have already established is a non‑starter, no material facts have been pleaded that may support a finding that Mr. Abdi’s section 15 rights were breached.
[29] I should also mention that I have not had to deal with the fact that Ms. Cusmaan is not a party to the present proceedings, and leaving aside the issue of whether she can benefit from Charter protection as a non-citizen and non-resident (as she then was) (Al Omani at paras 100-102), it is plain and obvious that Mr. Abdi cannot receive compensation for damages that were suffered by his wife. At best, this argument can provide context on the attitude and comportment of the visa officer in order to prove that his Charter rights were possibly breached.
[30] As a result, paragraphs 7 and 8 should be struck from the statement of claim as frivolous and disclosing no reasonable cause of action.
(2)
Misconduct, negligence and intentional tort
[31] Mr. Abdi sets out various heads of claim in paragraphs 9 to 12(C).
(a)
Mischaracterization
[32] At paragraphs 9, 9A, 9B and 9C of his statement of claim, Mr. Abdi alleges that the visa officer tormented, abused, humiliated and degraded Ms. Cusmaan during her interview by criticizing her values and the appropriateness of marrying Mr. Abdi, who was 22 years her senior and who had three children from a previous marriage. Mr. Abdi also asserts that the visa officer stated that his wife should not have children because she is too old and that, when referring to the wedding photos, the visa officer stated that the couple looked “miserable”. In addition, Mr. Abdi asserts that the visa officer “fabricated malicious allegation and falsehood”
as a pretext to deny them procedural fairness and so as to conclude that the relationship was not bona fide. Mr. Abdi relies heavily on what he claims were the findings of this Court in Abdi in support of his allegations. Putting aside for the moment that if any statements were made by the visa officer, they were made to Ms. Cusmaan, who is not a party to these proceedings, the basis for Mr. Abdi’s complaint is the findings of the visa officer and the IAD. Some of those findings may have been unreasonable, or at least hurtful, but they do not amount to material facts which could support the requisite wilful elements of malice or fraudulent intent that Mr. Abdi must establish. In addition, I find once again that Mr. Abdi may be stretching the evidence to support the underlying claim. The excerpt from the GCMS notes that was the subject of criticism in Abdi reads as follows:
Q. How old is your husband?
A. He was born in 1956.
Q. He is then 58 years old so almost 20 years older than you?
A. Yes.
Q. It does not bother you?
A. No it’s not important.
. . .
Q. Your husband is 56 years old and already has 3 children. He wants to have more children?
A. She hesitates. I want to have children.
Q. But you yourself are 37 years old? Don’t you think it<s [sic] late to have children?
A. No answer.
[33] The additional affidavit also refers to a question asked to Mr. Abdi during the hearing before the IAD: “Did you ever discuss with your wife why she would be interested in a man who is 22 years older than her?”
[34] This line of questioning led this Court, in Abdi, to state in obiter:
The official’s questions about the Applicant and Ms. Cusmaan’s difference in age are wholly inappropriate and the official had no business asking them. . . . With respect to the issue of children, as I have noted above, the fact that an adult couple may have differing opinions on this question – regardless of age or prior children – has nothing to do with an assessment of the genuineness of a marriage.
[35] Mr. Abdi again tethers his claim to what he asserts are the conclusions of this Court in Abdi. His assertions are incorrect in that respect, and other than the exchanges cited above, no other statements are attributed to the visa officer in the pleadings; all there is are general allegations of Ms. Cusmaan being embarrassed and insulted by the visa officer, and Mr. Abdi being “appalled” by the question from the IAD. Mr. Abdi does not plead any further material facts to support his claim, and the Federal Court of Appeal has warned against allowing a claim to proceed just in case better evidence may arise in the future (St John’s Port Authority v Adventure Tours Inc, 2011 FCA 198 at para 63).
[36] I cannot envisage how Mr. Abdi will be able to establish, based upon the pleadings, the existence of wilful intent or mala fides on the part of the visa officer or the IAD, and consequently, the underlying claim on this issue is unsupportable and doomed to fail. Accordingly, paragraphs 9, 9A, 9B and 9C of his statement of claim must be struck as it is plain and obvious that this portion of the claim cannot succeed.
(b)
Apprehension and misrepresentation
[37] At paragraphs 10, 10A, 10B, 10C, 10D and 10E of his statement of claim, Mr. Abdi alleges that the “Decision maker”, who I must take as being both the visa officer and the IAD as regards their respective decisions, “fabricated falsehood, defamation of character, to deny us procedural fairness . .
. based [on] preconceived notion and intentional tort . . .”.
Mr. Abdi refers specifically to the visa officer’s decision, which states: “I believe you entered into that marriage solely to get a privilege under the Canadian Immigration Act”
. He goes on to allege that purported false accusations and lies regarding the genuineness of the marriage has “ruined [their] life and affected severely [their] wellbeing”
. He then cites passages from Abdi which according to him establish his assertions and allegations. The short answer is that they do not, and repeating them does not make it so. The visa officer was expressing her findings; those findings were eventually determined to be unreasonable, however, I find no support for the proposition that the mere fact that they were found to be unreasonable opens the door to damages. Again, Mr. Abdi seems to be taking statements or findings that he may find embarrassing and elevating them to the level of intentional malice. There is no basis to support such an exercise on the part of Mr. Abdi, and there is certainly no support in this Court’s decision in Abdi that he may turn to. Mr. Abdi has simply not pleaded the necessary facts to allow a court to make the link between the offending statements or questions and the intentional element he requires to succeed in his claim. Consequently, this part of his claim is also frivolous and cannot succeed. Accordingly, paragraphs 10, 10A, 10B, 10C, 10D and 10E of his statement of claim should be struck.
(c)
Intentional tort and denial of procedural fairness
[38] At paragraphs 11, 11A and 11B of his statement of claim, Mr. Abdi asserts that following the filing of his appeal of the visa officer’s decision, he received a transcript of the interview with his wife. He states that he found the grounds for which his wife was denied a visa profoundly disturbing and shocking and that his wife was treated “horribly and brutally” by the visa officer. Mr. Abdi again then cites the decision in Abdi as confirmation that he and Ms. Cusmaan were treated “differently” and were discriminated against. Unfortunately, no material facts to support these allegations are set out in the paragraphs, with the only support being Mr. Abdi’s interpretation of the conclusions in Abdi. Mr. Abdi has not provided any material support for his contention, and I must therefore again find that his claim on this issue is doomed to fail. Therefore, paragraphs 11, 11A and 11B of his statement of claim are to be struck.
(d)
Government failure and negligence
[39] At paragraphs 12, 12A, 12B and 12C of his statement of claim, Mr. Abdi asserts, as stated earlier, that on January 26, 2016, he wrote to the Prime Minister and four unidentified Cabinet ministers regarding his then ongoing immigration appeal. He alleges that these individuals breached their duty of care they owed to him by failing to take meaningful action. The underlying claim appears to suggest that the “negligence” occurred because the Prime Minister failed to “protect his rights” and because Mr. Abdi was “forced” to seek judicial review to the Federal Court. However, such bald statements do not support a claim in negligence. 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). In any event, the underlying claim does not properly plead a cause of action in negligence (Sivak v Canada, 2012 FC 272 at paras 48-51). If Mr. Abdi’s letters went without a response, his recourse is elsewhere than in the courts. Paragraphs 12, 12A, 12B and 12C of his statement of claim are to be struck for disclosing no reasonable cause of action and for being frivolous.
(e)
Whether leave to amend should be granted
[40] Mr. Abdi’s claim is predicated on an erroneous interpretation of this Court’s decision in Abdi as well as his misunderstanding of the effect and consequences of that decision. In considering whether Mr. Abdi should be granted leave to amend, the test is whether the defects in his pleadings are potentially curable (Simon v Canada, 2011 FCA 6 at para 8); I am satisfied that they are not because of the underlying erroneous premise upon which they are based. Under the circumstances, no amendments to his statement of claim could cure its deficiencies.
III.
Costs
[41] I have no doubt that Mr. Abdi feels ill done by and that the institution of the present action was the by-product of a need to seek redress. His claim was misconceived, however, quite possibly on account of his own misunderstanding of the judicial process; Mr. Abdi saw this Court’s decision in Abdi as something it was not. I hope that he now has a better understanding of what the decision truly was. Under the circumstances, I do not believe that costs are warranted.
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