COURT FILE NO.: 10-49681

MOTION HEARD: 2012/05/15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Safa Almalki et. al., Plaintiffs

AND:

Attorney General of Canada, Defendants

BEFORE: Master MacLeod

COUNSEL:
Paul Champ, for the plaintiffs (moving parties)

Elizabeth Richards for the defendant (responding party)

HEARD: May 15 th , 2012

REASONS FOR DECISION

[ 1 ] This is a motion to compel the Attorney General of Canada to produce certain documents or categories of documents in aid of cross examination on an affidavit. The question is whether or not the court should order that production in the context of a relatively narrow summary judgment motion.

[ 2 ] The motion as argued dealt only with the question of relevance and not with privilege. For the reasons that follow I am granting relief to the plaintiff and I am directing the defendant to provide production of certain documents. In light of the recent directive to courts and litigants by the Court of Appeal in the Combined Air decision [1] and the fact that this action is case managed, I am also directing counsel to consider whether or not the summary judgment motion should be stayed until after production and discovery.

Background

[ 3 ] This action was commenced in Ottawa and it is case managed under Rule 77 of the Rules of Civil procedure. It is related to a group of actions commenced in Toronto and case managed by the Honourable Mr. Justice Perell. These are all civil actions against the Government of Canada arising out of certain investigations by the RCMP and CSIS and the consequences for those who were the targets of the investigations.

[ 4 ] This particular action is connected to the notorious story of Abdullah Almalki. He is a Canadian citizen of Syrian origin and was the subject of an anti-terrorist investigation by Canadian authorities beginning in 2001. Subsequently Mr. Almalki was arrested, detained and tortured in Syria and it is alleged that Canadian authorities were complicit in this. The conduct of those authorities in the case of Mr. Almalki as well as similar situations concerning Ahmad Abou-Elmaati and Muayyed Nureddin were the subject of an “internal inquiry” conducted by the Honourable Frank Iacobucci Q.C. Certain findings by Mr. Iacobucci were made public in 2008.

[ 5 ] Abdullah Almalki is not a plaintiff in this proceeding. The plaintiffs are his siblings, Safa, Nazih and Youssef Almalki and a former employee, Bassam Kandar. The plaintiffs claim that they have each suffered damages as the result of wrongful acts of agents of the Government of Canada, in particular CSIS and the RCMP.

[ 6 ] Central to this claim is the allegation that the plaintiffs were wrongfully and carelessly identified in Canada and to authorities in the United States as suspected terrorists. It is said, inter alia, that the plaintiffs were targeted as a consequence of their relationship to Abdullah Almaki, that the RCMP made statements and obtained search warrants on the basis of “confessions” made by Ahmad Abou-Elmaati under torture by the Syrian Military Intelligence Branch, that the government has never had any credible evidence that any of the plaintiffs were anything but law abiding citizens. Despite this, it is alleged, U.S. authorities were advised by these agencies that the plaintiffs were “Islamic extremist individuals” suspected of association with Al Qaeda.

[ 7 ] The plaintiffs allege that their reputations have suffered severely and that they cannot now and probably never will be able to travel to the U.S. This has had financial and personal consequences as it serves to limit employment prospects and prohibits visits to relatives in the United States. As recently as 2010 Mr. Kandar was stopped and interrogated at the U.S. border and then was refused admission to the United States. Each of the defendants seeks significant damages from the Government of Canada based on negligent investigation, defamation and breach of Charter rights.

[ 8 ] The defendant is bringing a summary judgment motion. In that motion the Attorney General takes the position that the action should be dismissed because the action in negligence or defamation is statute barred either by the two year limitation period under the Limitations Act, 2002 [2] or by the limitation periods existing under predecessor legislation. [3]

[ 9 ] The argument as I apprehend it will be that the cause of action accrued in 2001 or 2002 when the RCMP communicated with U.S. border authorities and ought to have been discovered by the plaintiffs by at least 2002 when search warrants were executed or on the first occasion that each plaintiff discovered he could not cross the border into the United States. The action was not commenced until October of 2010. I understand the plaintiffs will be relying on s. 5 of the Limitations Act which enshrines the principle of “discoverability”. The plaintiffs contend that they only knew of the communication of false and misleading intelligence that they were extremists linked to Al Qaeda and terrorist suspects when they read about that communication in the Iacobucci report in October of 2008.

[ 10 ] The summary judgment motion (the “main motion”) is not before me. The issue before me relates to cross examination on the affidavit material filed in support of the main motion. Specifically the question is whether or not the defendant must produce certain documents or classes of documents sought by the plaintiffs in connection with the cross examination of Harold O’Connell. Mr. O’Connell is the deponent of the defendant’s affidavit for use on the main motion. The documents identified in the notice of examination are as follows:

a. Document from on or about October 31, 2001, in which the RCMP made a request to the U.S. Customs Service to issue “lookouts” for Abdullah Almalki and several of his family members, including some or all of the Plaintiffs. In this request, the Plaintiffs are allegedly referred to as “Islamic extremist individuals suspected of being linked to the Al Qaeda terrorist movement”.

b. The response from U.S. Customs Service, dated on or about November 6, 2001, confirming that, at the RCMP’s request, some or all of the Plaintiffs were entered on the U.S. Customs Service’s Treasury Enforcement Communications System; and,

c. Any other documents communicated by the Defendant to the United States of America or other countries that identify the Plaintiffs as security threats or “Islamic extremists” or similar such words.

[ 11 ] I have not been asked to rule on the question of privilege. Nor have I been advised that any of these documents are caught by the provisions of s. 38 of the Canada Evidence Act . [4] S. 38 requires that certain documents identified as “sensitive information” or “potentially injurious information” relating to international relations or national defence or security may not be disclosed even to this court until there has first been a ruling by a designated judge of the Federal Court. An example of this procedure in the context of civil proceedings has taken place with respect to documents ordered produced to Mr. Abdullah Almalki and several other parties including Mr. Abou-Elmaati and Mr. Nureddin. [5]

[ 12 ] The motion was argued only on the question of relevance. The argument advanced by counsel for the Attorney General is fairly simple. It is conceded that the requested documents would be relevant to the merits of the action and might have to be produced (subject to proper claims of privilege) in the main action if it proceeds. It is argued however that these documents are not relevant to the summary judgment motion. That is because the plaintiffs have never seen these documents and therefore the documents cannot be relevant to the argument that the limitation period had either expired when the claim was issued on the one hand or that the limitation period did not begin to run until October of 2008 on the other.

Analysis

[ 13 ] The Attorney General relies heavily on the decision of Perell J. in Ontario v. Rothmans [6] which distinguishes relevance for purposes of a motion from relevance for purposes of discovery. He also relies upon my own ruling in Caputo v. Imperial Tobacco et. al. [7] in which I held that inserting irrelevant material into an affidavit cannot be used to fabricate an issue for purposes of cross examining the other party. There is no question that the relevant issues on a motion may be narrower than the issues in the main action. The relevant questions relating to expiry of the limitation period will not engage all of the production that relates to liability and damages. It is another matter entirely to agree that none of the requested documents could be relevant simply because the plaintiffs have never seen them.

[ 14 ] It is necessary to consider what must be proven to meet statutory test and also to consider the nature of the causes of action alleged by the plaintiffs. Firstly, with regard to the Limitations Act, 2002 , the limitation period begins to run on the earlier of the date when four elements of discoverability are known or the date on which those four elements could have been discovered by the exercise of reasonable diligence. The elements are: a) knowledge that damage has occurred; b) knowledge of the tortious act or omission; c) knowledge of the identity of the tortfeasor; and, d) having regard to the nature of the loss or damage, knowledge that a court proceeding would be appropriate. The plaintiff has the onus of showing that these elements were not known on the date that the tortious act (or omission) actually occurred. [8] Obviously this requires evidence of when the acts or omissions took place, when the plaintiffs gained actual knowledge, what information would or could have been disclosed if requested and what efforts the plaintiffs actually made to inform themselves.

[ 15 ] The limitation period cannot begin to run until the date when the tortious act occurred or the date on which the act, the actor, the consequences, the wrongful nature of the act and the constituent elements of the cause of action ought to have been apparent. The statute incorporates the fundamental tenet of fairness which had been developed in the pre-existing jurisprudence. It is unreasonable to have a cause of action expire before the date on which the plaintiff could reasonably have known that he or she could sue. This includes knowledge of any conditions precedent to commencing an action. [9]

[ 16 ] The tort of negligent investigation is by definition an evolutionary process that occurs during the course of a legitimate investigation. It cannot be negligent to begin a broad investigation or to consider a person connected to another person who is under investigation to be a person of interest. The courts have held that a citizen does not have a right to be left alone by the police but the citizen does have a right to expect that an investigation will be conducted reasonably and in accordance with the limits imposed by law. [10] Assuming good faith and compliance with legal requirements, there can be no cause of action for being included in an investigation or even being the target of an investigation. There can be a cause of action when the investigation carelessly reaches a faulty conclusion and damages to the plaintiff are the result.

[ 17 ] An investigation may become a negligent investigation when the police fall below the standard of reasonable investigation such as employing illegal means, disregarding exculpatory evidence, making decisions based primarily on assumptions or stereotypes, or reaching conclusions based on unreliable and flawed investigative techniques. Such an investigation may become actionable when the plaintiff suffers consequences that are compensable at law. The limitation period begins to run when the plaintiff is in possession of the necessary information so that the cause of action is complete. In wrongful conviction cases, for example, the limitation period only begins to run when the conviction is overturned. At that point, the plaintiff can show that not only was he or she convicted on the basis of a flawed investigation but that the conviction was in fact unjustified. [11] For these reasons it may be difficult to say when precisely the cause of action accrued.

[ 18 ] Defamation on the other hand is a specific act of defamatory communication. For example, assuming the statement to be false and not protected by a recognized privilege, each time there was a communication with the U.S. authorities identifying the plaintiffs as terrorists or suspected terrorists there would be potential for a defamation claim. In that instance each defamatory communication is a new cause of action subject to a separate limitation period. Of course the discoverability principle will still apply so it seems inherently problematic to refuse to disclose the potentially defamatory document while expecting the plaintiff to meet the onus imposed by s. 5 of the Limitations Act, 2002 .

[ 19 ] As counsel for the plaintiff concedes, there is an attractive simplicity to the position taken by the Attorney General. Why should the government be put to the time and expense of producing documents if the claim is statute barred? The problem is that in the circumstances of this case, certain documents necessary to establish the merits of the claim may well be tied up with the question of when the cause of action accrued and the limitation period began to run. If there was potentially defamatory communication, how can the plaintiff deal with the limitation argument unless the plaintiff is shown the documents and knows when they were sent? If the investigation was ongoing for years, how can the argument be met that the limitation period has expired without access to the details of how the investigation was actually conducted and how conclusions were formed? The investigations of the plaintiffs are investigations in which no arrests were ever made and no charges were ever laid. So the cause of action, if it exists, would appear to flow from communication of unfounded suspicions in the absence of any evidence that would have supported criminal proceedings under Canadian law.

[ 20 ] The question of whether or not a limitation period has expired may sometimes be neatly dealt with as a separate issue. It is the essence of limitation statutes that they are intended to put disputes to rest whether or not they have merit. Given the nature of these claims however, I agree with the submissions of counsel for the plaintiff that the documents sought by the plaintiff are highly relevant to the summary judgment motion.

The impact of Combined Air

[ 21 ] The first two documents listed in the plaintiffs’ notice of examination are relatively specific documents. They are the document referred to in the Iacobucci report and the American response. The third is not a single document but a category of documents. The plaintiffs seek production of any documents identifying any of them as security threats and addressed to foreign authorities. The plaintiffs have not seen these documents and therefore are unable to say how many there may be, the dates of those documents and the wording of the documents. Indeed there may be legitimate disagreement as to whether or not a specific document is caught by the wording of the request. Under those circumstances it is possible that the work of locating, identifying and producing those documents may broadly parallel the work that would have to be done to make more general production in the action. Moreover once the documents have been produced, there will be further cross examination and it is possible this will include questions that would also have to be asked at discovery.

[ 22 ] Consequently it is necessary to consider the question posed by the Court of Appeal in paragraphs 57 & 58 of Combined Air. In a unanimous decision of a 5 member panel, the court cautions about the injustice of requiring the plaintiff to put his or her “best foot forwards” where the summary judgment motion takes place early in the litigation. While the court is specifically addressing the use of the new subrule 20.04 (2.1), the admonition has broader application. In cases in which the nature and complexity of the issues demand the normal process of production and oral discovery take place before a party should be required to respond to a summary judgment motion, states the court, premature summary judgment motions are inefficient. “In such a case, forcing a responding party to build a record through affidavits and cross examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the actual discovery process”. [12]

[ 23 ] In the following paragraph the court states that counsel have the obligation to ensure that they are adopting an appropriate litigation strategy. The court specifically authorizes a party faced with a premature or inappropriate summary judgment motion to seek an order dismissing or staying the summary judgment motion in advance of the main motion. The suggested mechanism for this is a motion for directions. Of course in a case managed action, directions may also be obtained at a case conference.

[ 24 ] The plaintiffs have not asked for an order staying the summary judgment motion nor am I suggesting that such an order would necessarily be granted or be appropriate in this case. In principle if the question of expiry or non expiry of the limitation period can be determined on a motion then one way or another it will save the parties time and expense at trial. Of course if it is successful it will eliminate the trial or much of the trial entirely. But it will not save time or money if there must be repeated rulings dealing with production and cross examination attempting to parse what is relevant to the limitation period summary judgment motion from what is more generally relevant to the action as a whole. I am accordingly directing counsel’s attention to the issue. Once the scope of the production and cross examination flowing from the disposition of this motion is apparent, it may appear that it would be more efficient to complete production and discovery and then to argue the summary judgment motion (if it still appears appropriate) on a full documentary and factual record.

Conclusion

[ 25 ] In conclusion, the motion is granted. The Attorney General is to produce the documents identified in the notice of examination and the deponent is to appear for cross examination having reviewed the same.

[ 26 ] Prior to proceeding with this limited production and cross examination however counsel are to consider the question of sequencing and duplication of resources. Should it appear more efficient to complete production and discovery in the main action before arguing the summary judgment motion then the summary judgment motion should be postponed. In the event counsel disagree on this point then I may be spoken to for further directions once the scope of the production required by this order is fully apparent.

[ 27 ] I invite counsel to agree on the disposition of costs. Failing agreement the plaintiffs may make brief written submissions within the next 30 days and the Attorney General may respond 15 days thereafter. Costs submissions may be made electronically to mastersofficeottawa@ontario.ca .

Master MacLeod

Date: May 22, 2012

[1] Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764

[2] S.O. 2002, c. 24, Schedule B

[3] The defendants also rely on the Public Authorities Protection Act, R.S.O. 1990, c. P.28 and the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50.

[4] R.S.C. 1985, c. C-5 .

[5] See Attorney General of Canada v. Abdullah Almalki, et. al. 2011 FCA 199 ; leave to appeal refused, January 19, 2012, 1639 (S.C.C.)

[6] 2011 ONSC 2504 ; (2011) 5 C.P.C. (7 th ) 112 (S.C.J.)

[7] (2002) 25 C.P.C. (5 th ) 78 (S.C.J. – Master)

[8] S. 5 (1) & (2) of the Act.

[9] Pixeiro v. Haberman 1997 325 (SCC) , [1997] 3 S.C.R. 549 (S.C.C.)

[10] Hill v. Hamilton Wentworth Regional Police Services Board 2007 SCC 41 , [2007] 3 S.C.R. 129; (2007) 285 D.L.R. (4 th ) 620 (S.C.C.)

[11] Hill , supra @ para. 97

[12] Combined Air, supra @para 57.