COURT FILE NO.: CV-11-439746 DATE: 2013-03-15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MANUEL RUIZ ESPINOZA, SALVADOR RETA RUIZ and JOSE RUIZ SOSA Respondents (Plaintiffs)

– and –

THE ATTORNEY GENERAL OF CANADA AND HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT CANADA AND THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA Applicant (Defendant)

– and –

FOREIGN AGRICULTURAL RESOURCE MANAGEMENT SERVICES Applicant (Defendant)

-and –

TIGCHELAAR BERRY FARMS Applicant (Defendant)

CANADIAN CIVIL LIBERTIES ASSOCIATION Intervener

COUNSEL: Andrew Lokan and Michael Fenrick, for the Respondents (Plaintiffs) Christine Mohr and Jon Bricker for the Applicant (Defendant) Jodi Gallagher Healey, for the Applicant (Defendant) John D. R. Craig, for the Applicant (Defendant) Paul Schabas and Nicole Henderson, for the Intervener

HEARD: September 25, November 8 and 20, 2012

REASONS FOR JUDGMENT

T. DUCHARME J:

I. Overview

[1] The respondents in this case, Manuel Ruiz Espinoza, Salvador Reta Ruiz and Jose Ruiz Sosa, (together the “respondents”) are three agricultural workers from Mexico who worked for Tigchelaar Berry Farms (“Tigchelaar”) in 2010. They were dismissed on August 30, 2010 and they returned to Mexico on the following day. Their employment was arranged through the Seasonal Agricultural Worker Program (“SAWP”), a program of the government of Canada ("Canada") that is administered by Foreign Agricultural Resource Management Services (“F.A.R.M.S.”). The respondents commenced an action for wrongful dismissal in contract but as well allege that their rights under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms[^1] and ss. 1(a) and 2(e) of the Canadian Bill of Rights[^2] have been violated. Specifically, the respondents claim to have been privately deported and argue that before that happened they should have been told the reason for their dismissal and repatriation and given a meaningful opportunity to respond. [^3]

[2] The applicant, Tigchelaar, has brought a motion pursuant to Rule 21.01(b) to strike the Charter and the Bill of Rights-related aspects of the respondents’ Fresh as Amended Statement of Claim (the “Amended Claim”) on the grounds that the pleadings disclose no reasonable cause of action. Tigchelaar does not move to strike the claim against them for wrongful dismissal. The Canada and F.A.R.M.S. have moved under Rule 21 to strike all the claims against it on the grounds that the pleadings disclose no reasonable cause of action.

II. Factual Context

A. The Parties

[3] The respondents are Mexican citizens who were employed by Tigchelaar as seasonal agricultural workers in 2010 under the SAWP.

[4] Tigchelaar is a private sector agricultural business in Vineland, Ontario, that participates in the SAWP. As detailed below, the SAWP is a federal government program under which workers from Mexico and other specified countries are permitted to enter and work in Canada on a temporary basis to meet the seasonal demand for agricultural workers.

[5] F.A.R.M.S. is a non-profit agency that assists in the administration of the SAWP.

[6] Her Majesty the Queen in Right of Canada (“Canada”) is responsible in law for the actions of the federal departments Human Resources and Skills Development Canada and Citizenship and Immigration Canada which are the principal departments responsible for Canada’s involvement in the SAWP.

B. The SAWP Contract & the respondents’ Employment with [Tigchelaar](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[7] The respondents worked at Tigchelaar from either approximately April 15, 2010 (Sosa) or May 15, 2010 (Espinoza and Ruiz) until August 30, 2010 when Tigchelaar terminated their employment. The respondents returned to Mexico the next day. Prior to commencing work with Tigchelaar, the respondents each signed a copy of the SAWP Contract, which is a standard form contract that governed the terms and conditions of the respondents’ employment with Tigchelaar.

[8] The SAWP Contract signed by the respondents included the following terms:

a) The respondents would be employed by Tigchelaar for a term of no more than eight (8) months and would return to Mexico no later than December 15, 2010 [Article I.1(a) and (c)];

b) Tigchelaar was entitled to develop farm rules regarding conduct, safety, discipline and care and maintenance of property. If such rules were developed, Tigchelaar was required to provide a copy of those rules to the respondents and, upon request, to the agent of the Mexican government (“Government Agent”), who was also a party to the SAWP Contract. [Article I.7, IX.3];

c) Following completion of a trial period of fourteen (14) working days, and after consulting with the Government Agent, Tigchelaar could terminate the respondents’ employment for “…non-compliance, refusal to work or any other sufficient reason…” and cause the worker to return to Mexico (i.e. early repatriation). [Article X.1];

d) The SAWP Contract did not state that the respondents had a right to know about and respond to allegations against them that could lead to the termination of their employment;

e) The “Obligations of the Employer” section addressed issues such as the employer providing transportation to obtain medical care, training and equipment for the handling of pesticides/chemicals and restrictions on transferring workers [Article VIII]. Nothing in that section or elsewhere in the SAWP Contract restricted Tigchelaar’s ability to determine its own human resource policies and processes. Specifically, there was no requirement that Tigchelaar conduct workplace investigations prior to terminating employees;

f) The Government Agent was entitled to determine after consultation with HRSDC that Tigchelaar had not satisfied its obligations under the SAWP Contract. If such a determination was made, it could result in the worker being transferred to another farm. Various other provisions of the SAWP Contract contemplate transfer of a worker from one farm employer to another [Articles X.4 (employer breach), I.5, I.6, VII, VIII (transfer)];

g) Upon termination, the respondents could be required to return to Mexico (i.e. early repatriation) [Article X.1];

h) The SAWP Contract is governed by the laws of Canada and the laws of the province in which the respondents were employed (i.e. Ontario) [Article XI.3]; and

i) No term or condition of the SAWP Contract could be superseded, suspended, modified or otherwise amended in any way, without the express written permission of the Canadian and Mexican authorities as well as the worker and the employer [Article XI.5].

[9] Tigchelaar terminated each of the respondents’ employment on or about August 30, 2010. The respondents returned to Mexico the following day. Following their return to Mexico, the respondents issued a Statement of Claim on November 17, 2011 and issued the Amended Claim on May 1, 2012.

III. Issues

A. What is the Test under Rule 21 for Striking Out a Claim?

B. Does the Charter Apply to Tigchelaar?

C. Does the Charter Apply to F.A.R.M.S.?

D. Do the Respondents Have a Viable Cause of Action under s. 7 of the Charter?

E. Do the Respondents Have a Viable Cause of Action under s. 15 of the Charter?

F. Do the Respondents Have a Viable Cause of Action under s. 1(a) of the Bill of Rights?

G. Do the Respondents Have a Viable Cause of Action under s. 2(e) of the Bill of Rights?

H. Do the Respondents Have a Viable Cause of Action in Contract Against F.A.R.M.S. or Canada?

I. Should the respondents be Granted Leave to Make Further Amendments?

IV. Analysis

A. What is the Test Under Rule 21 for Striking Out a Claim?

[10] The Court’s power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure that unclutters proceedings and is essential to effective and fair litigation. The law respecting Rule 21.01(1)(b) is well-settled. The Rule provides that a party may move before a judge “to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.” The threshold that a moving party must meet to show that there is no reasonable cause of action is very high. Such a motion can only succeed in "the clearest of cases" where it is "plain and obvious" or "beyond reasonable doubt" that there is no reasonable cause of action.[^4] Only when the matter is "certain to fail" due to a "radical defect" should it be struck out.[^5] Conversely, as Justice Finlayson held in Hanson v. Bank of Nova Scotia, “[t]he threshold for sustaining a pleading under Rule 21.01(1)(b) is not a high one.”[^6]

[11] Neither the length nor complexity of the issues, the novelty of the claim, nor the potential of a strong defence should prevent the matter from proceeding.[^7] Indeed, the novelty of a claim may suggest that it should not be struck as it has been recognized that “[m]atters of law that are not fully settled in the jurisprudence should not be disposed of on a Rule 21.01(1)(b) motion at an early stage of the proceedings before a Statement of Defence has been delivered and before discovery has taken place.”[^8] However, this principle should not be taken so far as to immunize a claim that is clearly untenable in law from being struck.

[12] The onus on the moving party in a motion to strike is particularly high in cases involving questions of constitutional law or when Charter rights are involved. The law governing such issues is often complex and may require careful consideration of both adjudicative facts and legislative facts.[^9] Thus, constitutional claims should be struck out only in the clearest of cases. [^10]

[13] A statement of claim must contain “a concise statement of the material facts on which the party relies for the claim” but not the evidence by which those facts are to be proved.[^11] Conclusions of law may be pleaded only if the material facts supporting them are pleaded.[^12] On a motion to strike under rule 21.01(2)(b) the question is to be determined solely on the basis of the pleadings. The facts as pleaded are to be taken as true unless they are patently ridiculous or incapable of proof. The pleadings must be read generously to accommodate any drafting deficiencies.[^13] However, it is incumbent on the respondents to plead clearly the facts necessary to ground each cause of action and failing to do so is fatal.

[14] Under rule 21.01(2)(b) no evidence is admissible on a motion to strike a pleading on the ground that it discloses no reasonable cause of action. However, the Court can consider any documents referred to in the Statement of Claim as well as any relevant legislation. Therefore, I will not consider evidence with respect to the question of whether the Statement of Claim discloses a reasonable cause of action. However, I can consider the SAWP Memorandum of Understanding; the SAWP contract as well as any relevant legislation.

B. Does the Charter Apply to [Tigchelaar](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[15] The Charter is essentially an instrument for regulating and limiting the exercise of government power over an individual. Under s. 32(1), the application of the Charter is limited to the legislative, executive and administrative branches of government. Private activity is deliberately excluded from Charter scrutiny.

[16] A non-governmental entity is subject to the Charter only if (1) it is found to be “government” because of its very nature or because the government exercises substantial control over it; or (2) it is not itself a government body but nevertheless performs “governmental activities”, such as exercising delegated governmental authority or implementing a specific government program or policy.[^14]

[17] The respondents’ argument is that the Charter applies to F.A.R.M.S. and Tigchelaar despite the fact that they are both non-governmental actors because they are performing an activity that is sufficiently governmental in nature to implicate the Charter. More specifically, the respondents submit that (1) in terminating and removing the migrant workers from Canada without sufficient procedural protections Tigchelaar and F.A.R.M.S. are exercising a coercive power delegated to them by the Canadian government; and (2) that in exercising this coercive power they are implementing a specific government policy, i.e. a policy that “unsuitable temporary workers should not remain in Canada.”

[18] In making this argument the respondents plead the following facts about the SAWP program in general:

(1) SAWP is a deliberately and formally adopted policy of the Government of Canada designed to ensure a temporary, reliable labour source for agricultural employers in Canada that cannot be obtained domestically, and to return these workers to their respective source countries either at the end of their work term or when their employment has been terminated; [^15]

(2) SAWP (including the SAWP Contract) has been developed and negotiated by the Government of Canada and F.A.R.M.S., together with source countries. In other words, the Government of Canada and F.A.R.M.S. have created the administrative structure that is in turn populated by employers, such as Tigchelaar, and foreign workers, such as the respondents;[^16]

(3) the Government of Canada (through HRSDC, CIC and CBSA) and F.A.R.M.S. (as intermediary for agricultural employers in Ontario) facilitate the entry of foreign workers to Canada;[^17]

(4) the Government of Canada (through HRSDC) and F.A.R.M.S. administer SAWP in Ontario and provide employment advice to agricultural employers, including advice concerning the termination and repatriation of foreign workers deemed unreliable; [^18]

(5) F.A.R.M.S. (through CanAg Travel Services) and agricultural employers, such as Tigchelaar, operate in tandem to remove from Canada foreign workers whose employment has been terminated;[^19] and

(6) Tigchelaar and F.A.R.M.S. were indispensable to the Government of Canada in carrying out SAWP and so the Government of Canada is a joint participant in Tigchelaar’s and F.A.R.M.S.’ administration of SAWP. Therefore, the Charter and the Canadian Bill of Rights apply to the actions of Tigchelaar and F.A.R.M.S.[^20]

[19] With respect to what was done to the respondents in this particular case, they plead the following:

(1) Prior to terminating each of the respondents, Tigchelaar sought and received advice from F.A.R.M.S. and/or the Government of Canada respecting the respondents’ employment;[^21]

(2) F.A.R.M.S. arranged the private deportations of each of the respondents on behalf of Tigchelaar through CanAG Travel Services;[^22] and

(3) In taking the actions described above, Tigchelaar and F.A.R.M.S. were exercising authority pursuant to SAWP’s statutory and administrative framework and Tigchelaar and F.A.R.M.S. were acting in pursuit of a specific objective of the Government of Canada. As such, Tigchelaar and F.A.R.M.S. are subject to the Charter.[^23]

[20] Nowhere in the pleadings do the respondents allege that Canada has directly delegated a power to deport them from Canada. However, the respondents assert that “SAWP effectively authorizes F.A.R.M.S. and Tigchelaar (as well as other participating agricultural employers) to summarily remove migrant workers from Canada.”[^24] In this regard, Mr. Lokan also relies on the language of the SAWP contract which Canada requires Tigchelaar to use. Article X 1. of the SAWP contract provides: “Following completion of the trial period of employment by the WORKER, the EMPLOYER, after consultation with the GOVERNMENT AGENT, shall be entitled for non-compliance, refusal to work, or any other sufficient reason, to terminate the WORKER’S employment hereunder and so cause the WORKER to be repatriated.”[Emphasis added.]

[21] Mr. Craig, for Tigchelaar, argues that it is plain and obvious that the Charter does not apply to Tigchelaar because: (1) Tigchelaar was not exercising a delegated statutory authority; and (2) there is no direct connection between Tigchelaar’s impugned conduct and the implementation of a government program or policy. I will consider these in turn.

(1) Was Tigchelaar Exercising A Statutory Power?

[22] The Amended Claim pleads no facts or statutory provisions to establish that Tigchelaar was exercising delegated statutory authority in determining its workplace investigation processes, terminating the respondents’ employment, or even in arranging for the respondents’ early repatriation to Mexico. While the respondents do mention a number of statutes in their pleadings,[^25] they have not pleaded that any provision of the listed legislation creates a statutory grant of authority under which Tigchelaar was acting. Nor was Mr. Lokan able to identify any such delegation in his oral submissions.

[23] However, I do not agree that the lack of delegated statutory authority is fatal to the respondent’s claim at this early stage. While both McKinney and Eldridge speak of the Charter applying to non-government entities exercising delegated statutory authority, neither of these cases limit the application of the Charter to instances of statutorily delegated authority. As La Forest J. noted in Eldridge¸ “[a]s I have discussed, it is a basic principle of constitutional theory that since legislatures may not enact laws that infringe the Charter, they cannot authorize or empower another person or entity to do so.” [Emphasis added.][^26] While statutorily delegated government authority will likely be involved in most cases of this nature, this passage from Eldridge leaves open the possibility that the Charter may apply any time a private entity is authorized or empowered to act contrary to the Charter. The important point is not how the authorization is effected, but the fact that the power of the private entity is derived from the government or results from government action. Given this, it is not plain and obvious that the Charter does not apply to Tigchelaar because the respondents cannot identify a specific statutory grant of the power to terminate and repatriate the respondents. Given that Canada has designed the SAWP program and requires Tigchelaar and its SAWP employees to enter into a contract that expressly authorizes Tigchelaar to “cause the worker to be repatriated” it is at least arguable that Canada has empowered or authorized Tigchelaar to repatriate the respondents.

(2) Is There a Connection between [Tigchelaar](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)’s Impugned Conduct and the Implementation of a Government Program or Policy?

[24] Mr. Craig cites Eldridge for the proposition that to trigger the application of the Charter based on the implementation of a government policy or program, the Amended Claim must plead facts establishing a “direct…and precisely defined connection” between Tigchelaar’s impugned conduct and implementation of a policy or program. In particular, he submits that managing farm employees, including dealing with workplace investigations and employee terminations, is not a governmental activity or an activity directly connected to government policy that should warrant application of the Charter. He correctly points out that none of the objectives of SAWP relate to human resource processes, workplace investigations, or day to day management of employees. He argues that the SAWP aims to facilitate the movement of temporary workers into Canada to satisfy agricultural employers’ seasonal labour demands, not govern farm employers’ internal human resource processes.

[25] I agree with the foregoing submission. However, it does not go far enough. It is artificial to consider this case as only involving the management of the farm’s agricultural work force. It also involves the repatriation of terminated workers to Mexico. The respondents argue that the objectives of SAWP include the return of temporary workers following termination of employment or the expiry of a work permit. Thus, this case is not like Lobo v. Carleton University,[^27] where the respondents failed to plead any material facts to establish that the impugned actions of the university were implementing a specific government program or policy. Mr. Lokan argues that there is a direct connection between Tigchelaar’s authority to cause the repatriation of the respondents and the Government of Canada’s objective to ensure that temporary foreign workers remain in Canada only temporarily and so long as they remain suitably employed. While this argument may not ultimately succeed, it is not plain and obvious that the respondents’ Charter claims must fail on this basis at this stage of the proceedings.

(3) Concluding Remarks about the Application of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) to Tigchelaar

[26] Section 32 of the Charter provides, in relevant part, that the Charter applies “to the Parliament and government of Canada in respect of all matters within the authority of Parliament”. While this language seems straightforward, the jurisprudence in this area is anything but and the determination of which entities or activities are sufficiently governmental in nature to attract the application of the Charter is a complex question. As Justice Paperny of the Alberta Court of Appeal recently noted, “[s]ince the enactment of the Charter, courts have struggled to find a conceptual framework for the determination of when and to whom it applies. The law has developed idiosyncratically and the various frameworks do not always fit comfortably with one another.”[^28] This significantly complicates any assessment of the claim that it is plain and obvious that the Charter does not apply to Tigchelaar.

[27] I very much expect that the Charter will ultimately be found not to apply to Tigchelaar in this case. I do not think that the structure of the SAWP program and the mandatory use of the SAWP contract constitute an authorization of government activity on the part of Tigchelaar.[^29] I am also of the view that Article X (1) of the SAWP contract will be found to be primarily concerned with the question of who bears the costs for the terminated worker’s return trip to Mexico. It is also significant that this Article does not require any worker to return to their country of residence before the expiry of their work permit. As such, the SAWP contract will likely be found not to authorize or empower Tigchelaar to deport terminated workers. But I recognize the caution in Eldridge that “[t]he factors that might serve to ground a finding that an activity engaged in by a private entity is ‘governmental’ in nature do not readily admit of any a priori elucidation.”[^30] As such, I think this important and complex question should best be determined by a Court presented with all the relevant adjudicative and legislative facts.

C. Does the Charter Apply to [F.A.R.M.S.](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[28] I regard the application of the Charter to F.A.R.M.S. to be a much more straightforward question. The respondents’ statement of claim details at some length the nature and extent of F.A.R.M.S.’ involvement in the administration of the SAWP program generally. In particular, the respondents plead that “F.A.R.M.S. was incorporated with the assistance of the Government of Canada to act as the administrative arm of the SAWP, and carries out functions under the SAWP that were carried out by the Government of Canada prior to 1987.”

[29] Not only is it pleaded that F.A.R.M.S. was incorporated to perform functions previously carried out by the Government of Canada, but, as was the case with respect to Tigchelaar, the respondents plead that:

(1) Prior to terminating each of the respondents, Tigchelaar sought and received advice from F.A.R.M.S. and/or the Government of Canada respecting the respondents’ employment;[^31]

(2) F.A.R.M.S. arranged the private deportations of each of the respondents on behalf of Tigchelaar through CanAG Travel Services;[^32] and

(3) In taking the actions described above, Tigchelaar and F.A.R.M.S. were exercising authority pursuant to SAWP’s statutory and administrative framework and Tigchelaar and F.A.R.M.S. were acting in pursuit of a specific objective of the Government of Canada. As such, Tigchelaar and F.A.R.M.S. are subject to the Charter.[^33] [Emphasis added.]

[30] For F.A.R.M.S., Ms. Gallagher-Healy argues that nothing in the Amended Claim pleads that F.A.R.M.S. is government funded or controlled, that F.A.R.M.S. was established pursuant to any legislative or regulatory provision or that any statutory or regulatory provisions grant F.A.R.M.S. discretionary or any other type of decision-making authority in relation to the SAWP or its participants.

[31] However, largely for the reasons discussed above,[^34] it is not plain and obvious that the Charter does not apply to F.A.R.M.S. given the pleadings that F.A.R.M.S.: (1) administers the SAWP program; (2) arranged for the repatriation of the respondents back to Mexico; and (3) now performs functions formerly performed by the Government of Canada.

D. Do the Respondents Have a Viable Cause of Action under [s. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[32] Section 7 of the Charter provides that "[e]veryone 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." The right to life, liberty and security of the person encompasses fundamental life choices and protects personal autonomy. The two steps in the s. 7 analysis have been set out by La Forest J. in R. v. Beare, as follows:

To trigger its operation 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 the deprivation is contrary to the principles of fundamental justice.[^35]

[33] The only issue on this motion is whether the respondents have properly pleaded a s. 7 claim. A claimant who alleges a breach of s. 7 of the Charter must plead material facts supporting a finding that: (1) there has been a deprivation of the right to life, liberty or security of the person; and (2) the deprivation was not in accordance with the principles of fundamental justice. I will consider each of these in turn.

(1) Have the Respondents Pleaded a Deprivation of Life Liberty or Security of the Person?

[34] The liberty interest protected by s. 7 is not restricted to mere freedom from physical restraint. As LaForest J. explained in Godbout v. Longueuil (City):

the right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interfere… as I see it, the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence.[^36] [Emphasis added.]

But liberty does not mean unconstrained freedom and s. 7 protects only that narrow sphere of personal autonomy wherein individuals may make these inherently private and fundamental life choices free from state interference.

[35] The right to security of the person is also broader than merely a guarantee of physical security. Like liberty, security of the person also rests on the principle of personal autonomy.[^37] As the Court of Appeal cautioned in Bedford “[t]he phrase "security of the person" defies exhaustive definition. Its meaning is best articulated in the context of the specific facts and claims advanced in a given case.”[^38] What is important for the purposes of this motion is that s. 7 protects the psychological integrity of an individual. However, this aspect of security of the person is only implicated by "serious state-imposed psychological stress" which means that, in order for this right to be triggered, the psychological harm must result from the actions of the state and it must be serious.[^39]

[36] The statement of claim contains two explicit references to s. 7 of the Charter:

The respondents, … claim against the Defendants for:

a declaration that Tigchelaar Berry Farms Inc. (“Tigchelaar”) had an obligation under … s. 7 of the Canadian Charter of Rights and Freedoms … to advise the respondents of the allegations against them and to provide a meaningful opportunity for them to respond, prior to terminating their employment and repatriating them;[^40]

The respondents have a right … pursuant to s. 7 of the Charter … to be informed of the allegations made against them and to be provided with a meaningful opportunity to respond to these allegations.[^41]

[37] In addition to the above, the statement of claim briefly outlines the employment relationship between the respondents and Tigchelaar,[^42] which ended when they were terminated “without sufficient or any reason” on August 30, 2010.[^43] The respondents were repatriated to Mexico on the following day, August 31, 2010. Finally, para. 50 of the Amended Claim states: “F.A.R.M.S. arranged the private deportations of each of the respondents on behalf of Tigchelaar through CanAG Travel Services.” The pleadings contain no other material facts with respect to: (1) the personal characteristics or vulnerabilities of the respondents; (2) their circumstances while working at Tigchelaar; (3) the circumstances leading to their repatriation; (4) their subsequent situation in Mexico; or (5) any consequences they might have suffered as a result of their repatriation.

[38] In this case, Mr. Lokan stresses that the respondents are not asserting a Charter right to remain in Canada. He acknowledges that non-citizens do not have an unqualified constitutional right to remain in Canada.[^44] But he emphasizes that, under their work permit and the SAWP Contract, the respondents were lawfully entitled to remain in Canada as long as they have not engaged in conduct amounting to “non-compliance, refusal to work, or any other sufficient reason” for termination. Rather, the respondents argue that their liberty interest is violated because they were summarily removed from Canada. In particular, they are asserting a claim for procedural safeguards prior to their removal from Canada. Mr. Lokan argues that this liberty interest is analogous to that recognized by the Supreme Court of Canada in Godbout, in which he says a majority of the Court held “that choosing where to establish one’s home” implicates s. 7 of the Charter.

[39] The respondents also assert that their security of the person has been violated. Relying on the Supreme Court of Canada’s decision in Blencoe,[^45]Mr. Lokan submits that it is far from plain and obvious that the respondents’ summary repatriation from Canada without even knowing the reasons for their removal could not harm the respondents’ psychological integrity.

[40] Ms. Mohr, for Canada, argues that the s. 7 claim must fail because there is no pleaded allegation that the Crown took part in any alleged deprivation. Of course there is no requirement that the Crown be directly involved. If there was, then a government could avoid constitutional responsibility in any case in which it has delegated its authority, which is precisely the mischief to which Eldridge and the cases following it are directed.[^46] If the Charter does apply to either Tigchelaar or F.A.R.M.S., as explained above, then it would not be appropriate to strike the respondents’ claim on this basis as their actions could result in liability for Canada.

[41] However, this does not end the matter. A careful review of the statement of claim reveals that the material facts pleaded could not support a claim that the respondents’ right to liberty or security of the person has been violated. There are a number of reasons for this conclusion.

(2) The Repatriation of the Respondents was Not a Deportation

[42] If the respondents had been deported from Canada they would have a much more credible claim under s. 7 of the Charter as this would at least involve interference with their physical liberty. In much of their oral argument the respondents complained that what was done to them constitutes a “private deportation.” This characterization was also reflected in the respondents’ written submissions:

Most importantly, the SAWP Contract, when read as a whole, operates in such a way that termination of employment by an agricultural business effectively results in immediate deportation of the employee from Canada. … Each of the respondents was repatriated to Mexico the next day on August 31, 2010. F.A.R.M.S. arranged the private deportations of each of the respondents on behalf of Tigchelaar through CanAg Travel Services. … the respondents’ deportation … The impugned activity in this case is the deportation of the respondents from Canada in the absence of sufficient procedural safeguards. … Given the “serious personal, financial and emotional consequences” engaged by deportation from Canada, and the reasonable expectations of SAWP participants that they may only be terminated from the program, and consequently removed from Canada where there is “sufficient reason” to do so, the respondents assert that, as in Singh, they are entitled to some process.[^47]

[43] The intervener, Canadian Civil Liberties Association, was even more pointed in this regard, repeatedly referring to what had been done to the respondents as a deportation and claiming that granting the applicants’ motion to strike would “effectively create a new zone of deportations free from constitutional scrutiny.”

[44] This characterization is striking in two respects: First, it is inconsistent with the tone of the respondents’ actual pleadings; and second, it is a fundamental mischaracterization of what happened to the respondents. I will address these in turn.

[45] With respect to the respondents’ pleadings, they only apply the word deportation to themselves once in para. 50 where they claim:

F.A.R.M.S. arranged the private deportations of each of the respondents on behalf of Tigchelaar through CanAG Travel Services. [Emphasis added.]

The only other mention of deportation in the pleadings is in para. 7(1) where it is alleged that:

F.A.R.M.S., through CanAg Travel Services, arranges for the deportation to their country of origin of foreign agricultural workers whose employment is terminated prematurely; [Emphasis added.]

[46] In paras. 47, 48, 49 of their pleadings the respondents say they were “repatriated to Mexico”. In the balance of the pleadings, the process is also referred to as repatriation, rather than deportation.[^48] Similarly in their factum, the respondents describe what happened to them as a “repatriation”[^49] and use the term “repatriation” to describe the return of a worker to their home country under the SAWP.[^50] This, of course, is consistent with the language used in the SAWP contract. The respondents also use the term “removal” to describe both what happened to them and what can happen to workers under the SAWP.

[47] The problem with the foregoing is that repatriation and deportation are not synonymous terms. “Repatriation” is defined as “the return or restoration of a person to his or her native country.”[^51] It is to be contrasted with “deportation,” which means “the action of carrying away; forcible removal, esp. into exile.”[^52] The essential difference in both domestic and international law is that deportation necessarily involves the forcible removal of a person from a country.[^53] Thus, while both deportation and repatriation are forms of returning a person to another country it is only the former in which the person is forced to return. Thus, I reject any suggestion that the respondents were deported. This is not only a mischaracterization of what happened but more importantly this assertion is not supported by the material facts in the Amended Claim.

[48] This is not merely a semantic quibble. To call what was done to the respondents deportation is to fundamentally misrepresent the nature of what occurred. The Amended Claim does not allege that: (1) any action was taken in the present case to revoke the respondents’ work permits; (2) any of the respondents were removed from Canada through the removal process set out in the IRPA; or (3) any of the respondents were forcibly removed from Canada in any other way. Indeed, the respondents clearly had the right to remain in Canada and avail themselves of the procedural protections provided for in the removal process under the Immigration and Refugee Protection Act S.C. 2001, c. 27 (“IRPA”).[^54] In this regard, the respondents were treated no differently than any other foreign national in Canada who is found to be inadmissible. As the respondents were not forced to return to Mexico, it would appear that they chose to return on the flight arranged by F.A.R.M.S. The problem is that the Amended Claim does not plead any material facts that would illuminate exactly how and why this occurred.

[49] But this does not end the matter. Mr. Lokan, for the respondents, urges the Court to consider the “on-the-ground” reality of the terminated SAWP worker which includes the following factors: (1) having been terminated by one SAWP employer the theoretical possibility of transferring to another SAWP employer is unlikely to occur; (2) they are not legally permitted to work for any other employer; (3) they will be expelled from their housing; (4) they have extremely limited financial resources; (5) they may not be able to speak English or French, the two official languages of Canada; and (6) as noted by the Supreme Court of Canada in Dunmore v. Canada, they are part of “a disadvantaged group. They are poorly paid, face difficult working conditions, have low levels of skill and education, low status and limited employment mobility."[^55] Thus, while not overtly coerced to return to Mexico, the terminated SAWP worker really has no choice but to do so. The option of remaining in Canada is illusory and impossible in any practical sense.

[50] One problem with the foregoing is that no material facts are pleaded with respect to: (1) any attempts to arrange the transfer of any of the respondents to another SAWP employer; (2) any expulsion of any of the respondents from their accommodation at Tigchelaar; (3) their financial circumstances; or (4) their linguistic capabilities. Moreover, while I suspect the characterization of the agricultural workers in Dunmore applies to the respondents in this case, there are no material facts in the Amended Claim to support that conclusion.

[51] If the Amended Claim pleaded facts that would support the foregoing description of the respondents’ position, I accept that a Court might find that the respondents, once terminated by Tigchelaar, had no real choice but to go home on the flight arranged by F.A.R.M.S. While I reject any suggestion that this constitutes a deportation, I accept that another court might find this to be a constructive deportation. If such a finding were made it would not be plain and obvious that the respondents would not have a claim under s. 7. Unfortunately, given the pleadings such a conclusion is not available to me.

(3) Can the Pleadings Support a Finding that the Respondent’s Right to Liberty under s. 7 was Violated?

[52] It is true that a majority of the Court in Godbout accepted “that choosing where to establish one’s home” implicates s. 7 of the Charter. However, it is unclear how this is relevant to the respondents, given the material facts pleaded. There is no suggestion in the Amended Claim that the respondents were planning to establish their home in Canada. As for any decisions by the respondents relating to where their temporary home might be, these were made when they entered into the SAWP contract that specified where they would live during the period of their seasonal employment and required them to return to Mexico at the end of their authorized work period.[^56] To the extent that the respondents exercised the liberty to choose where to make their temporary home they did so when they signed the SAWP contract. Most seriously for this motion, there are no material facts pleaded that suggest that the respondents were removed from housing at Tigchelaar or that there was any interference with their current or future living arrangements. This cannot simply be inferred by the fact that the respondents returned to Mexico the day following their termination. Thus, on the material facts pleaded, it is plain and obvious that the respondents’ claim of a violation of their liberty interests under s. 7 will not succeed and these claims must therefore be struck.

[53] There is another difficulty with the respondents’ argument. To the extent that their right to choose where to establish their home was violated this was surely by the fact of their repatriation, not by the fact that they were not told why they were terminated and given a chance to respond before being repatriated. But the respondents’ s. 7 claim only relates to the latter lack of procedural safeguards before removal from Canada.

(4) Can the Pleadings Support a Finding that the Respondents’ Right to Security of the Person under s. 7 was Violated?

[54] The respondents also assert that their security of the person has been violated. Relying on the Supreme Court of Canada’s decision in Blencoe, Mr. Lokan submits that it is far from plain and obvious that the respondents’ summary repatriation from Canada without even knowing the reasons for their removal could not harm the respondents’ psychological integrity.

[55] At the outset, I would point out that this argument suffers from the same problem as the respondent’s liberty argument. That is, I would have thought that any psychological impact would result from the fact of repatriation, not the fact that they were not informed of “the reasons for their removal” beforehand or offered any other procedural protections. But again, the respondents’ Charter claim only relates to the latter.

[56] More seriously, a violation of security of the person on these grounds requires "serious state-imposed psychological stress”. For the reasons outlined above at paras. 17 to 27, I am prepared to assume that it is possible that a court could find that what was done to the respondents was “state-imposed.” But the respondents did not plead that they suffered psychological stress, never mind serious psychological stress. They made this assertion for the first time in their factum and it is not supported by any material facts in the Amended Claim. All that happened to the respondents, as outlined in the Amended Claim, is that they were terminated from Tigchelaar and returned the next day to Mexico, their home country, where the SAWP contract required them to return in any event. The allegation that this termination was premature and done “without sufficient or any reason” provides no basis to conclude that they suffered serious psychological stress as a result. There are no material facts pleaded about the circumstances of the respondents’ termination, their repatriation or their post-return situation in Mexico. None of these can be presumed to have caused the respondents serious psychological stress. Thus, on the material facts pleaded, it is plain and obvious that the respondents’ claim of a violation of their security of the person under s. 7 of the Charter will not succeed and these claims must therefore be struck.

(5) The Principles of Fundamental Justice

Given my conclusion that the pleadings cannot satisfy the first part of the s. 7 test, it is not strictly necessary to address the second part. However, as the matter was fully argued before me I will do so. In Chaoulli v. Québec (A.G.), Binnie and LeBel JJ. emphasized the importance of the principles of fundamental justice in the s. 7 analysis:

Claimants whose life, liberty or security of the person is put at risk are entitled to relief only to the extent that their complaint arises from a breach of an identifiable principle of fundamental justice. The real control over the scope and operation of s.7 is to be found in the requirement that the applicant identify a violation of a principle of fundamental justice. The further a challenged state action lies from the traditional adjudicative context, the more difficult it will be for a claimant to make that essential link.[^57] [Emphasis added.]

[57] In R. v. Malmo-Levine, the Court stipulated three requirements for a rule to qualify as a basic tenet of the legal system, and thus as a principle of fundamental justice: (1) the rule must be a legal principle; (2) there must be significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate; and (3) the rule must be capable of being identified with sufficient precision to yield a manageable result.[^58]

[58] The principle the respondents are relying on is the principle of procedural fairness, i.e. that s. 7 affords them the following minimal procedural protections in the face of removal from Canada: (i) the right to be informed of the “sufficient reason” giving rise to their removal from Canada, and (ii) a meaningful opportunity to respond to those allegations. In other words, the respondents assert that it is a principle of fundamental justice that no one be removed from Canada without sufficient procedural safeguards.

[59] The respondents submit that the Supreme Court of Canada has recognized that procedural fairness is a principle of fundamental justice for the purposes of s. 7. [^59] While they concede that procedural fairness in the abstract is not a principle of fundamental justice, they argue that they are nonetheless entitled to procedural protections in the circumstances of this case. What is required of procedural fairness, and therefore of fundamental justice, must be decided in the context of the scheme involved and the rights affected. Specifically, determining the content of the duty of procedural fairness requires consideration of the non-exhaustive list of factors set out in Baker v. Canada and Suresh v. Canada:

(1) the nature of the decision made and the procedures followed in making it, that is, “the closeness of the administrative process to the judicial process”;

(2) the role of the particular decision within the statutory scheme;

(3) the importance of the decision to the individual affected;

(4) the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed; and

(5) the choice of procedure made by the agency itself. [^60]

[60] Given the “serious personal, financial and emotional consequences” engaged by their return to Mexico and the reasonable expectations of SAWP participants that they may only be terminated from the program, and consequently removed from Canada where there is “sufficient reason” to do so, the respondents assert that, as in Singh, they are entitled to some process. In this case, fundamental justice, at the very least, requires that they be informed of the reasons for their termination and consequent repatriation, and that they be provided with a meaningful opportunity to respond to the allegations made against them.

[61] While the principle articulated by the respondents does satisfy the test in Malmo-Levine, there are at least two problems with the respondents’ arguments. First, and most important, there are no material facts pleaded about the “serious personal, financial and emotional consequences” suffered by the respondents. Thus, the pleadings do not permit an assessment of “the importance of the decision to the individual affected.” Second, there are no material facts pleaded about whether the respondents availed themselves of existing procedural protections in the SAWP contract. Both of these complicate the assessment of whether any principle of fundamental justice is implicated in the treatment of the respondents.

E. Do the Respondents Have a Viable Cause of Action under [s. 15](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[62] Section 15(1) of the Charter provides “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” In order to establish a claim under s. 15, the Amended Claim must contain material facts capable of establishing the elements of the test which the Supreme Court of Canada recently stated in Withler v. Canada.[^61] To make out a s. 15 violation, a claimant must show:

(1) that the impugned legislation or state action creates a distinction based on an enumerated or analogous ground; and

(2) that the distinction creates a disadvantage by perpetuating prejudice or stereotyping.

[63] With respect to the second arm of the test, a distinction based on an enumerated or analogous ground is not a violation of subsection 15(1) unless the distinction is discriminatory.[^62] The following contextual factors are usually considered in determining whether the distinction is discriminatory: (1) pre-existing disadvantage; (2) the correspondence between the differential treatment and the claimant’s actual circumstances; (3) whether the law has an ameliorative effect; and (4) the nature of the interests affected.[^63]

[64] The Supreme Court has recently directed that these factors should not be applied rigidly[^64] and has stressed that the focus of s. 15 should be on substantive and not formal equality.[^65] Although the fundamental purpose of s. 15 is to combat discrimination, stereotyping and prejudice, the Court has been equally clear that the scope of s. 15 is restricted to government action.[^66] Courts have repeatedly confirmed that s. 15 is not capable of remedying all disadvantage, which may have a variety of causes.

[65] The Amended Claim asserts that “the SAWP does not provide foreign agricultural workers who are subject to it with equal protection or benefit of the law, and discriminates against the respondents and other foreign workers on the basis of national origin, citizenship, and/or their status as temporary agricultural workers.”[^67] The Amended Claim appears to base the s. 15 claim against F.A.R.M.S. and Canada allegation on the following:

(1) F.A.R.M.S. and Canada owe the respondents and other foreign agricultural workers who participate in the SAWP a duty to ensure that there are sufficient procedural safeguards in place for these workers, including ensuring that the respondents have a meaningful opportunity to respond prior to the agricultural business terminating his or her employment and repatriating the foreign agricultural worker to his or her home country. In particular, F.A.R.M.S. and Canada owe the respondents a duty to ensure that they receive treatment equal to that received by Canadian workers performing the same kind of agricultural work.[^68]

(2) The respondents and other participants in the SAWP have no effective recourse against the denial of their contractual, statutory and/or constitutional rights because they can be repatriated at the whim of their employer.[^69]

(1) Is There a Distinction on the Basis of an Enumerated or Analogous Ground?

[66] The respondents submit that the operation of the MOU and the SAWP Contracts, as well as the administration of the SAWP by Tigchelaar and F.A.R.M.S., constituted a violation of the respondents’ right to equality guaranteed by s. 15(1) on the analogous grounds of citizenship, national origin and their status as temporary agricultural workers. National origin is an enumerated ground of discrimination while citizenship and the occupational status of an agricultural worker have been recognized as analogous grounds.

[67] In Withler the Supreme Court, while affirming that comparison plays a role throughout the s.15 analysis, rejected the need for comparison to a comparator group saying at para. 63:

Provided that the claimant establishes a distinction based on one or more enumerated or analogous grounds, the claim should proceed to the second step of the analysis. This provides the flexibility required to accommodate claims based on intersecting grounds of discrimination. It also avoids the problem of eliminating claims at the outset because no precisely corresponding group can be posited.

[68] In this case, the respondents claim that they cannot be terminated and repatriated without having a meaningful opportunity to respond. While they have not defined a clear comparator group, it is not necessary that they do so. However, one obvious comparator group is any other foreign national in Canada who is found to be inadmissible. The problem, as discussed above at paras. 48 and 50, is that the respondents have pleaded insufficient material facts about the circumstances of their repatriation to determine whether or not a distinction in fact exists. However, given the above caution in Withler, I will move on to the second branch of the test.

(2) Does This Distinction Create a Disadvantage by Perpetuating Prejudice or Stereotyping?

[69] Here again, I would have thought that it was the fact of repatriation, not the absence of sufficient procedural protections beforehand that would be the concern here, but it is not. According to the respondents, the question to be asked at this stage is whether this lack of procedural protection creates disadvantage. The question is:

…whether, having regard to all relevant contextual factors, including the nature and purpose of the impugned legislation in relation to the claimant’s situation, the impugned distinction discriminates by perpetuating the group’s disadvantage or by stereotyping the group.[^70]

[70] In Withler, the Supreme Court said that in determining whether government policy or activity has a discriminatory impact, the relevant contextual factors include: (1) the preexisting disadvantage of the claimant group, (2) any existing prejudice against the claimant group; (3) the nature of the interest that is affected, (4) correspondence between the distinction and the claimant’s actual characteristics or circumstances, and (5) the ameliorative effect of the law on others and the multiplicity of interests it attempts to balance.[^71]

[71] The difficulty here is that while the respondents make much of the “vulnerability and unique circumstances of temporary agricultural workers” there is little in the pleadings to support this characterization. For example, the respondents assert in their factum that “SAWP workers generally have low levels of education, low levels of pay, are typically racialized, and in the case of migrants from Mexico, typically have low levels of proficiency in either English or French.” Yet the Amended Claim contains no material facts supporting any of these assertions.

[72] In conclusion, because the Amended Claim does not plead sufficient material facts to satisfy either branch of the test in Withler, it is plain and obvious that the respondents’ claim of a violation of s. 15 of the Charter will not succeed and these claims must therefore be struck.

F. Do the Respondents Have a Viable Cause of Action under s. 1(a) of the Bill of Rights?

[73] Section 1(a) of the Bill of Rights recognizes "... the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law". In Authorson v. Canada (Attorney General), Justice Major held that the Bill of Rights did not create a right to due process or alter existing law on the subject. The Supreme Court of Canada has clearly held that the Bill of Rights, by its express wording recognized and declared certain rights and freedoms as they existed in Canada immediately prior to its enactment and guaranteed their continued existence subject to limitation by “due process of law.”[^72] In order to successfully plead a claim under the Bill of Rights, the respondents must also plead the existence of such rights at that date. Justice Major also held that s. 1(a) of the Bill of Rights “guarantees notice and some opportunity to contest a governmental deprivation of property rights only in the context of an adjudication of that person's rights and obligations before a court or tribunal.”[^73]

[74] There is no authority for the proposition that individuals in the position of the respondents had a right at common law in 1960 to the specific procedural safeguards prior to termination which are claimed in the pleading. Even today, the common law concerning employment law does not accord the specific rights claimed in this proceeding. In light of this, it cannot be said that the termination of employment and repatriation of the respondents constitutes a deprivation of property that was not in accordance with due process of law.

[75] To the extent that the “enjoyment of property” protected by s. 1(a) may include a right to wages, the Claim pleads no facts which suggest that the alleged deprivation was not in accordance with due process of law.

[76] For all of these reasons, it is plain and obvious that the respondents’ claim under s. 1(a) of the Bill of Rights cannot succeed and it must therefore be struck.

G. Do the Respondents Have a Viable Cause of Action under s. 2(e) of the Bill of Rights?

[77] Section 2(e) of the Bill of Rights guarantees that "... no law of Canada shall be construed or applied so as to ... (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations." Unlike s. 1(a), s. 2(e) on its face only applies to a “law of Canada.” This term is defined in s. 5(2) to mean “an Act of the Parliament of Canada enacted before or after the coming into force of this Act, any order, rule or regulation thereunder, and any law in force in Canada or in any part of Canada at the commencement of this Act that is subject to be repealed, abolished or altered by the Parliament of Canada.” As no law is at issue here, by its express terms, section 2(e) has no application to this case.

[78] In Authorson, Justice Major held that s. 2(e) of the Bill of Rights applies only to guarantee the fundamental justice of proceedings before any tribunal or administrative body that determines individual rights and obligations.[^74] This position was largely based on an examination of the other guarantees conferred by s. 2, all of which are legal rights applicable only in the context of a hearing before a court or tribunal.[^75]

[79] As noted above, the Bill of Rights did not create new rights. In order to succeed, the respondents would have to plead and establish that there was a right to a fair hearing before a court or tribunal, prior to an employer’s dismissal of an employee in 1960. They have not pleaded these facts, nor could they establish that such a right existed at common law. Consequently, it is plain and obvious that the respondents’ claim under s. 2(e) of the Bill of Rights cannot succeed and it must therefore be struck.

H. Do the Respondents Have a Viable Cause of Action in Contract Against F.A.R.M.S. or Canada?

[80] Neither F.A.R.M.S. nor Canada are a party to the contract between Tigchelaar and the respondents. They both seek to have any claim against them based on this contract struck. The respondents submit that F.A.R.M.S. and Canada are appropriate defendants because the respondents are seeking declaratory relief with respect to the interpretation and terms of the contract.

[81] Since F.A.R.M.S. and Canada are not a party to the SAWP Contract and no other contract is pleaded, it is plain and obvious that the respondents’ contractual-based claim against F.A.R.M.S. and Canada has no prospect of success and should be struck.

I. Should the Respondents Be Granted Leave to Make Further Amendments?

[82] This is not a case in which leave to amend should be denied. Leave to amend is only denied very rarely and in cases in which any deficiencies cannot be cured by pleading additional material facts.[^76] The respondents will be permitted to make further amendments with respect to their Charter claims. Permitting them to do so is consistent with Rules 2.01(1) and 26.01, which reflect a “liberal philosophy toward the amendment of pleadings.”

[83] However, as the deficiencies cannot be cured by pleading additional material facts, the respondents’ claims under the Bill of Rights and under the SAWP contract against F.A.R.M.S. and Canada that were struck cannot be amended.

J. Conclusion

[84] For the foregoing reasons, the respondents’ claims are struck. The respondents will be granted 30 days to make further amendments with respect to their Charter claims.

[85] If the parties cannot agree on costs, they may make brief written submissions within 30 days of the release of this decision.

T. Ducharme J.

Released: March 15, 2013

COURT FILE NO.: CV-11-439746 DATE: 20130315

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MANUEL RUIZ ESPINOZA, SALVADOR RETA RUIZ and JOSE RUIZ SOSA Respondents (Plaintiffs)

– and –

THE ATTORNEY GENERAL OF CANADA AND HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT CANADA AND THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA Applicant (Defendant)

– and –

FOREIGN AGRICULTURAL RESOURCE MANAGEMENT SERVICES Applicant (Defendant)

-and –

TIGCHELAAR BERRY FARMS Applicant (Defendant)

CANADIAN CIVIL LIBERTIES ASSOCIATION Intervener

REASONS FOR JUDGMENT

T. Ducharme J.

Released: March 15, 2013

[^1]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [^2]: S.C. 1960, c. 44. [^3]: Against Tigchelaar, the respondents claim violation of their rights under contract, s. 7 of the Charter and ss. 1(a) and 2(e) of the Bill of Rights. Against F.A.R.M.S. and the Government of Canada, the respondents claim violation of their rights under contract, ss. 7 and 15 of the Charter and ss. 1(a) and 2(e) of the Bill of Rights. [^4]: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 (S.C.C.), at paras. 32-33 [^5]: Ibid., at para. 33. [^6]: Hanson v. Bank of Nova Scotia (1994), 1994 CanLII 573 (ON CA), 19 O.R. (3d) 142 (C.A.), at para. 8 [^7]: Hunt, at para. 33. [^8]: Tireco Inc. v. YHI (Canada) Inc., [2009] O.J. No. 4245 (Div. Ct.); A similar approach has been taken in the context of Rule 20 where in Romano v. D’Onofrio (2005), 2005 CanLII 43288 (ON CA), 77 O.R. (3d) 583 where Feldman J.A. stated at para. 7 that “Matters of law which have not been settled fully in our jurisprudence should not be disposed of at this [interlocutory] stage of the proceedings." While the test under Rule 20 is different, this rationale would seem to equally apply to Rule 21.01(b). [^9]: In Danson v. Ontario (A.G.), 1990 CanLII 93 (SCC), [1990] 2 S.C.R. 1086, at para. 27, Sopinka J. distinguished these as follows “Adjudicative facts are those that concern the immediate parties… Such facts are specific, and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements…” [^10]: Lockridge v. Ontario (Min. of Environment), 2012 ONSC 2316, [2012] O.J. No. 3016 (Div. Ct), at para. 25; Fraser v. Canada (A.G.), [2005] O.J. No. 5580, [2005] O.T.C. 1127; Daniels v. Canada (Minister of Indian Affairs and Northern Development), 2002 FCT 295, [2002] 4 F.C. 550 (T.D.), at para. 3. [^11]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 25.06(1). [^12]: Ibid., Rule 25.06(2). [^13]: Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1 (C.A.), at para. 11. [^14]: McKinney v. University of Guelph , 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, at paras. 25-45; Eldridge v. British Columbia (A.G.), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at paras. 20-22 and 43-44. [^15]: Amended Claim, at paras. 11-13. [^16]: Amended Claim, at paras. 15-16. [^17]: Amended Claim, at paras. 22-25. [^18]: Amended Claim, at paras. 20, 22(h). [^19]: Amended Claim, at para. 7(i). [^20]: Amended Claim, at para. 59. [^21]: Amended Claim, at para. 46. [^22]: Amended Claim, at para. 50 [^23]: Amended Claim, at para. 58 [^24]: Respondents’ factum, at para. 56. [^25]: The respondents refer to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 and its associated Regulations, the Department of Citizenship and Immigration Act, S.C. 1994 c. 31 and the Department of Human Resources and Skills Development Act, S.C. 2005, c. 34. [^26]: Eldridge, at para 35. [^27]: 2012 ONSC 254, [2012] O.J. No. 63, at para. 20; aff’d 2012 ONCA 498, [2012] O.J. No. 3161, at paras. 3-4. [^28]: Pridgen v. University of Calgary, 2012 ABCA 139, 258 C.R.R. (2d) 134, at para. 72. [^29]: While deportation is no doubt a form of government activity, for the reasons outlined below, I do not think the repatriation of the respondents will be found to be a deportation. [^30]: Eldridge, at para. 42. [^31]: Amended Claim, at para. 46. [^32]: Amended Claim, at para. 50 [^33]: Amended Claim, at para. 58 [^34]: See paras. 17 to 27. [^35]: R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at p. 401. [^36]: Godbout v. Longueuil (City), 1997 CanLII 335 (SCC), [1997] 3 S.C.R. 844, at para. 66. [^37]: Bedford v. Canada (AG) 2012 ONCA 186, 256 C.R.R. (2d) 143, at para. 93. [^38]: Ibid., at para 97. [^39]: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 57. [^40]: Amended Claim, at para. 1(c). [^41]: Amended Claim, at para. 52. [^42]: Amended Claim, at paras. 32 to 45. [^43]: Amended Claim, at paras. 46 to 51. [^44]: Chiarelli v. Canada (Minister of Employment and Immigration), 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711, at para. 24. [^45]: Blencoe, at para. 57. [^46]: See Eldridge, at para. 42. [^47]: Respondents’ factum, paras. 29, 34, 55, 60 and 81. [^48]: Amended Claim, at paras. 1(a); 1(c); 1(e); 29(e); 29(f); 30, 31, 56 and 57. [^49]: Factum, at paras 2, 34, 67, 69,111, 114 [^50]: Factum, at paras. 20(e); 29; 50(d); 57; 60; 61; 74; 78; 81; 82; [^51]: Oxford English Dictionary, <online: www.oed.com>. “repatriation”. [^52]: Ibid., “deportation”. [^53]: In Reference Re: Persons of Japanese Race, 1946 CanLII 46 (SCC), [1946] S.C.R. 248 at p. 316, Estey J. discussed the definition of deportation in the context of the War Measures Act and said “Upon this reference it is not necessary to precisely define the word. It is enough to emphasize that as it is applied in law it is a compulsory sending out of, or as stated in the Oxford Dictionary "a forcible removal", and that, while it need not be restricted to aliens, it does apply to them. [Emphasis added.] In the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 4, Sched., Rome Statute, Article 7 s. 2(d) states: “deportation or forcible transfer of population means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.” [Emphasis added.] [^54]: The respondents conceded this point both in oral argument and at para. 74 of their factum. Even without this concession, this point is obvious and does not depend on external evidence. All that is required is an understanding of the IRPA and its regulations. [^55]: Dunmore v. Ontario (A.G.), 2001 SCC 94, [2001] 3 S.C.R. 1016, at para. 41. [^56]: SAWP Contract Article IX 1., IX 6. [^57]: Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, per Binnie and LeBel JJ, dissenting, at para. 199 ; John Doe v. Ontario, [2007] O.J. No. 3889 (S.C.), aff’d 2009 ONCA 132, 248 O.A.C. 252, at paras. 113-116. [^58]: R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 113. [^59]: Singh v. Canada (Minister of Employment and Immigration), 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177, at paras. 57-58. [^60]: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 115; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 23-27. [^61]: 2011 SCC 12 , [2011] 1 S.C.R. 396, at paras. 30-31. [^62]: Ibid., at paras. 34-35. [^63]: Law v. Canada (Minster of Employment and Immigartion), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, at paras. 62-65. [^64]: R. v. Kapp,2008 SCC 41, [2008] 2 S.C.R. 483, at paras. 22-24. [^65]: Withler, at para. 55; Kapp, at paras. 41-42. [^66]: Farrell v. Ontario (Attorney General)(1997), 1997 CanLII 12351 (ON SC), 149 D.L.R. (4th) 335 (S.C.), at para. 14, aff’d (1998),1998 CanLII 6274 (ON CA), 42 O.R. (3d) 97 (C.A.), at para. 2, leave to appeal to SCC refused [1999] S.C.C.A. No. 79. [^67]: Amended Claim, at para. 54. [^68]: Amended Claim, para. 31. [^69]: Amended Claim, para. 54. [^70]: Withler, at para. 54. [^71]: Withler, at para. 38. [^72]: Authorson v. Canada, 2003 SCC 39, [2003] 2 S.C.R. 40, at para. 34; R. v. Burnshine, 1974 CanLII 150 (SCC), [1975] 1 S.C.R. 693 at pp. 699 and 707. [^73]: Authorson, at para. 42. [^74]: Ibid., at para. 58. [^75]: Ibid., at para. 59. [^76]: Piedra v. Copper Mesa Mining Corp., 2011 ONCA 191, 332 D.L.R. (4th) 118, at para 94; Adelaide Capital Corp. v. Toronto Dominion Bank, 2007 ONCA 456, 158 A.C.W.S. (3d) 399, at para. 6;