COURT FILE NO.: 06-CV-035416
DATE: 20120704
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Abdullah Almalki et al, Plaintiffs
AND:
The Attorney General of Canada, John Doe and Jane Doe, Defendants
BEFORE: Hackland R.S.J.
COUNSEL: Andrea Goncalves, for the Plaintiffs
Barney Brucker, for the Defendant, The Attorney General of Canada
HEARD: May 24, 2012 (Ottawa)
ENDORSEMENT
[ 1 ] This motion is to impose a Discovery Plan in this action with virtually identical terms to that imposed by Justice Paul Perell in the actions Abou-Elmaati et al v. Attorney General of Canada et al (06-CV-308130 PD3) and Nureddin et al v. Attorney General of Canada et al (04-CV-270558CM1) (the “Toronto actions”), as amended by His Honour’s Orders of December 20, 2011.
[ 2 ] The Toronto actions and the present action are brought by victims of torture which occurred while in the custody of foreign governments. In actions against the Attorney General of Canada they allege that the Canadian Government was complicit in the abuse which they suffered and for failing to come to their aid.
[ 3 ] Up to this time the Toronto actions and the present action have proceeded in parallel, with the Elmaati and Nureddin Discovery Plan being followed in the present action. I am the case management judge in the present action brought by Abdullah Almalki, (which is an Ottawa action), and I have been kept fully informed of the progress of the Toronto actions. The same counsel are acting in all three actions.
[ 4 ] There has been no order for trial together or consolidation of the present action and the Toronto actions, although this may occur at some point.
[ 5 ] The parties agree, as do I, that all three actions should continue to proceed together at least at the production and discovery stage. The Discovery Plan imposed by Justice Perell should be adopted in the present action, in my opinion, unless there is a clear and identifiable reason for a departure on any particular aspect of the Plan.
[ 6 ] I have had the advantage of reading the comprehensive reasons of my colleague Justice Perell, dated December 5, 2011, 2011 ONSC 7220. In these reasons he considered and ultimately accepted the motion of the Attorney General of Canada to amend the Discovery Plan in the Toronto actions to allow for an extension of time for the completion of the production of documents from the original deadline of January 2, 2012 to September 30, 2012.
[ 7 ] Justice Perell’s reasons carefully explain the remarkable events that have marked the progress of these actions to date as well as the complex process for the disclosure and ultimately the production of the defendant’s extensive documentation in the face of claims for Crown privilege on national security grounds. I do not propose to reproduce that discussion. The judge found that the delay in the progress of the actions to date had been occasioned by the process for screening the relevant documents for claims of Crown privilege. He said that he was prepared to accept that the Attorney General had diligently and in good faith, attempted to comply with the Discovery Plan.
[ 8 ] Justice Perell therefore exercised his discretion to extend the date for the Attorney General to produce the balance of his relevant documents to September 30, 2012 “…failing which he shall show cause why his statement of defence should not be struck out.” Justice Perell explained that this potential sanction was designed to ensure that the actions will proceed promptly.
[ 9 ] Before this court counsel for the Attorney General has submitted that he appreciates the need to move promptly in order to bring these matters to trial and intends to continue to make best efforts to produce his relevant documents in the three actions by September 30, 2012. He argues that as indicated in the lists of documents, approximately 5000 documents have yet to be produced with attendant national security concerns to be addressed before production. By far, the greatest number of these documents will be produced in the present action. He therefore submits a “show cause” provision should not be imposed in this action as had previously been done in the Toronto actions.
[ 10 ] On my review of the materials in the Attorney General’s motion record, it does appear that in the present action the number of documents to be produced, particularly those which are subject to claims of Crown privilege, are substantially greater than in the Toronto actions.
[ 11 ] In view of Justice Perell’s finding that the Attorney General had diligently attempted to comply with the Discovery Plan, the best efforts commitment on the part of the Attorney General to meet the obligation to produce all relevant documentation by September 30, 2012 and the greater volume of such documentation in the present action, I exercise my discretion not to include the show cause provision in the Discovery Plan in the present action. Subject to that one point, I order that the Discovery Plan in the present action shall otherwise be on the same terms mutatis mutandis as the Discovery Plan in the Toronto actions.
[ 12 ] Should either party wish to seek costs of this motion, they should write to me within fourteen days of the release of this endorsement.
Mr. Justice Charles T. Hackland
Released: July 4, 2012
COURT FILE NO.: 06-CV-035416
DATE: 20120704
BETWEEN: Abdullah Almalki et al, Plaintiffs AND: The Attorney General of Canada, John Doe and Jane Doe, Defendants ENDORSEMENT
HACKLAND R.S.J.
Released: July 4, 2012