COURT FILE NO.: 06-CV-308130 PD3

DATE: May 30, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AHMAD ABOU-ELMAATI, BADR ABOU EL MAATI, SAMIRA AL-SHALLASH AND RASHA ABOU-ELMAATI

Plaintiffs

– and –

THE ATTORNEY GENERAL OF CANADA, JOHN DOE AND JANE DOE

Defendants

Andrea Gonsalves for the Plaintiffs

Barney Brucker and Helen Gray for the Defendants

HEARD: May 28, 2013

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] Abdullah Almalki, Ahmed Abou-Elmaati, and Muayyed Nureddin are the Plaintiffs in three separate actions against the Government of Canada, which is represented by the Attorney General of Canada. In those actions, the Plaintiffs respectively have made a motion, among other things, to have Canada’s Statements of Defence struck out for failure to provide an adequate List of Documents or for failure to comply with a Discovery Plan or in the alternative for Canada to be ordered to provide a Fresh List of Documents that would include certain specified documents not presently included in the List or Documents.

[2] In support of the their motions, the Plaintiffs delivered summonses to examine Cherie Henderson of the Canadian Security Intelligence Service (CSIS), Chesley Parsons of the Royal Canadian Mounted Police (RCMP), and Lillian Thomsen of the Department of Foreign Affairs and International Trade (DFAIT).

[3] Canada, which I will sometimes refer to as the Crown, now brings a preliminary motion to quash the summonses.

[4] Canada submits that the proposed examinations are for an ulterior or improper purpose and amount to an abuse of process because a cross-examination of the Crown’s List of Documents is not permitted at common law or by statute. In the alternative, Canada submits that any cross-examination would be premature and a fishing expedition given the issues to be determined on the motions to strike the Statements of Defence and alternatively to require a Fresh List of Documents.

[5] Messrs. Almalki, Elmaati, and Nureddins’ actions respectively are: Elmaati v. Canada (Attorney General) (06-CV-308130PD3) Almalki v. Canada (Attorney General) (06-CV-35416) and Nureddin v. Canada (Attorney General) (04-CV-270558CM1).

[6] I am case managing, the Elmaati and Nureddin actions in Toronto, and Regional Senior Judge Hackland is case managing the Almalki action in Ottawa. It was agreed that I would hear the motions in all three actions.

[7] For the reasons that follow, I dismiss Canada’s preliminary motion on terms that:

(a) the examinations of Canada’s deponents, Jessica Winbaum, Bradley Evans, and Vince Creaco, go before the examinations of Madams Henderson, Parsons, and Thomsen;

(b) the requirement in the summonses that the witness produce “all documents in the possession of [CSIS, RCMP or DFAIT] relevant to the Notice of Motion dated March 19, 2013 in paragraphs 2 (a), (b), (e), (g) and (h)” be struck from the summonses;

(c) the dismissal of the motion is without prejudice to Canada’s right to object to questions on the cross-examinations of Madams Henderson, Parsons, and Thomsen that go beyond the scope of the Plaintiffs’ motions or on any other proper ground; and,

(d) a proper ground for objecting to questions on the cross-examinations of Madams Henderson, Parsons, and Thomsen is that the question was already answered on the examination of Ms. Winbaum, Mr. Evans, or Mr. Creaco.

B. FACTUAL BACKGROUND

[8] Mr. Elmaati is a Canadian-Muslim. He and two other Canadian-Muslims, Mr. Almalki and Mr. Nureddin, were the victims of brutal torture while in the custody of the governments of Syria and Egypt. Each victim brought actions against Canada and each alleged that Canada put them in harm’s way and was complicit and responsible for their horrific experience and for failing to come to their aid and rescue.

[9] Mr. Nureddin’s action against Canada was the first, and it began in June 2004. In January 2006, Mr. Elmaati and members of his family commenced their actions, and he claimed, among other things, compensatory damages for breaches of his rights under the Charter. Mr. Almalki commenced a similar action in March 2006.

[10] Mr. Elmaati’s action and the actions of Mr. Almalki and Mr. Nureddin make allegations about the conduct of the Canadian Security and Intelligence Service (“CSIS”), the Royal Canadian Mounted Police (“RCMP”) and the Department of Foreign Affairs and International Trade (“DFAIT”).

[11] A major allegation is that Canadian investigators made false statements to foreign agencies and identified Messrs. Elmaati, Almalki, and Nureddin as terrorists associated with Al Qaeda and Osama Bin Laden. It is alleged that those misrepresentations led to their being forcibly rendered into the custody of foreign countries where they were imprisoned and tortured. Mr. Elmaati was imprisoned in both Syria and Egypt for 26 months. Mr. Elmaati pleads that his rights under the Charter were violated and that Canada is liable for complicity in torture in breach of applicable international law instruments to which Canada is bound.

[12] Canada has delivered Statements of Defence that deny that it breached the Charter or any duty alleged to be owed to the Plaintiffs.

[13] As noted above, Messrs. Almalki, Elmaati, and Nureddin have brought motions, among other things, to strike out Canada’s Statements of Defence in the three actions. The motions concern the adequacy of Canada’s List of Documents and also whether Canada has complied with its obligations under complicated and special Discovery Plans in the three actions.

[14] The Discovery Plans are complicated because Canada has claimed that many of its documents cannot be produced or cannot be produced without redactions because of claims of privilege and on the grounds of national security, defence, and international relations. The production of documents becomes very complicated because production involves an elaborate procedure before the Federal Court. (The constitutionality of that procedure was challenged in a previous interlocutory motion and appeal in the Elmaati action. See Abou-Elmaati v. Canada (Attorney General), 2010 ONSC 2055, varied 2011 ONCA 95).

[15] To be more precise, the Plaintiffs’ motions request very substantial relief. By way of summary, the motions are for: (a) an Order Striking out the Statements of Defence for failure to comply with the Discovery Plans; (b) a Fresh List of Documents including all remaining documents from the “O’Connor Inquiry” or the “Iacobucci Inquiry;” (c) a Fresh List of Documents including relevant documents from former defendants and from witnesses at the O’Connor Inquiry or the Iacobucci Inquiry; (d) a Fresh List of Documents including logs, intercepts, summaries, etc. of surveillance of the Plaintiffs by CSIS, RCMP, or other Canadian investigators; (e) a Fresh List of Documents including notes of CSIS investigators; (f) a Fresh List of Documents including communications between Canada and the media about the Plaintiffs and investigations about the Plaintiffs; (g) a schedule for the delivery of the documents in the Fresh List of Documents and an order striking out Canada’s Statements of Defence for non-compliance with the schedule; (h) an order prescribing the form of the Fresh List of Documents; (i) an order requiring Canada to identify any former Defendants that are now deceased; (j) an order determining any restrictions on the use of reports and transcripts from the O’Connor Inquiry or the Iacobucci Inquiry; and (k) an interim order permitting the Plaintiffs to cross-examine on the List of Documents.

[16] The Plaintiffs’ motions are supported by the affidavit of Ephry Mudrky, who is a law clerk with Stockwoods LLP, lawyers for the Plaintiffs in the three actions.

[17] The substance of Mr. Mudrky’s affidavit is to explain the procedural history of the three actions and to lay the evidentiary foundation for the Plaintiffs’ argument that Canada’s list of documents is deficient and that there is non-compliance with the Discovery Plans.

[18] The Plaintiffs’ position on the motion to strike the Statements of Defence and for Fresh Lists of Documents is that the Plaintiffs have demonstrated that there are serious deficiencies in the Lists of Documents in the three actions. They submit that the lists are incomplete and the descriptions of the documents in the lists inadequate. They submit that the document review process is inexcusably late and that Canada has inexcusably failed to meet deadlines under the Discovery Plan.

[19] Canada responded to the Plaintiffs’ motions and by way of responding material, Canada delivered affidavits from: (1) Jessica Winbaum, Department of Justice counsel; (2) Bradley Evans, CSIS employee, and Vince Creaco, RCMP employee.

[20] In her affidavit, Ms. Winbaum, who is counsel with the Federal Department of Justice assigned to assist Canada’s lead counsel, Barney Brucker and Helen Gray, provides an overview of the history of the actions and the history of the development of the Discovery Plans. She provides Canada’s account of the progress made in the production of documents and in preparing the List of Documents, including the status of the Federal Court proceedings associated with Canada’s various claims for privilege. She also provides a response to specific alleged deficiencies in the production of documents.

[21] In his affidavit, Mr. Evans, who is a CSIS employee engaged in the areas of counter intelligence and counter terrorism, provides evidence about CSIS’s role and mandate and document production in the three actions. In particular, he describes the collection and processing of audio intercepts

[22] In his affidavit, Mr. Creaco, who is a civilian member of the RCMP, provides evidence about collection and production of RCMP audio intercepts.

[23] The Plaintiffs believe that the Winbaum, Evans, and Creaco affidavits are inadequate to determine the issues on the motion, and accordingly, they served summonses to examine: (1) Cherie Henderson of CSIS; (2) Chesley Parsons of the RCMP; and (3) Lillian Thomsen of DFAIT. The position of the Plaintiffs is explained in paragraphs 14 to 16 of their factum as follows:

14. None of these affiants offers direct evidence about the AGC’s document gathering and review process, the assembly of the AGC’s Lists of Documents and productions, or the process followed by the AGC in attempting to meet its obligations within the deadlines in the Discovery Plan. Based on the contents of the affidavits, it is clear that none of the three affiants is in a position to give any such evidence. Equally, neither of the lay witnesses are able to provide evidence about the documents produced by CSIS, the RCMP or DFAIT in these actions, or about the types and sources of documents that are or may be missing from those productions, or about the factual background to the documents produced or omitted from the productions that may provide a foundation for arguments as to the relevance of any such documents.

15. The Production Motions are significant substantive motions, which seek among other relief to strike the AGC’s Statements of Defence. On the face of the AGC’s responding materials, the AGC has not provided direct evidence about the key issues raised in the Production Motions.

16. Following receipt of the AGC’s responding materials, therefore, the Plaintiffs served summonses to witnesses under rule 39.03 on three individuals: Cherie Henderson, Chesley Parsons and Lillian Thomsen (the “Proposed Witnesses”). The Proposed Witnesses were presented by the AGC in May 2010 during the parties’ negotiations towards the Discovery Plan as representatives of CSIS, the RCMP and DFAIT, respectively, who could be examined for discovery regarding the documents produced by those agencies in the litigation. The AGC’s representations in that regard establish that the Proposed Witnesses are in a position to give evidence relevant to the Production Motions regarding the AGC’s document gathering and review process, the assembly of the AGC’s Lists of Documents and productions, the AGC’s efforts to meet the deadlines in the Discovery Plan, and the relevance of various categories of documents.

[24] The summons require that Madams Henderson, Parsons, and Thomsen bring the following documents to the examination:

• All remaining documents relating to the Iacobucci Internal Inquiry (the “Internal Inquiry”) or to the O’Connor Inquiry (the “Arar Inquiry”) relevant to the issues in the Actions including all transcripts, reports, or notes, memoranda, or other records relating to evidence of those persons listed in Appendix H to the Internal Inquiry Report and in Appendix 4 of Volume II of the Arar Inquiry Report.

• All documents relevant to the issues in the Actions, from all former individual defendants and from all government witnesses at the Internal Inquiry and the Arar Inquiry, including any transcripts in which those witnesses were examined in proceedings such as proceedings related to search and seizure authorizations naming any of the plaintiffs or other targets of the O-Canada and AO-Canada investigations, related to the issues raised in the Actions.

• All documents relating to communications between the Government of Canada and the media about the plaintiffs, whether on or off the record; all press releases and official communication to the media by government representatives; transcripts of media interviews and scrums; formal government monitoring, analysis, and responses to specific media articles.

• A Fresh List of Documents which shall include all relevant documents identified in accordance with Paragraphs 2(a), (b), (c), (d) and (e) containing information as specified in paragraph 2(g) of the Notice of Motion.

• Identification of all former defendants in the Actions and any Government witnesses listed in Schedule 1 to the Notices of Motion in the Actions who have passed away since the Actions were commenced or who have ceased to be employed by the Government of Canada or who, for any other reason, are no longer available for the purposes of oral or documentary discovery in the Actions.

[25] Canada now moves to have the summonses quashed. Canada’s preliminary motion to strike the summons was supported by an affidavit from Jennifer Multari, who is a legal assistant employed by the Department of Justice to assist Helen Gray, the counsel in Ottawa, who has carriage of the file.

C. CANADA’S ARGUMENT THAT THE SUMMONSES ARE AN ABUSE OF PROCESS

[26] Relying on Hallstone Products Ltd. v. Canada (Customs & Revenue Agency) (2004), 2004 9133 (ON SC), 71 O.R. (3d) 373 (S.C.J and Mazumder v. Ontario, [2000] O.J. No. 4793 (S.C.J.), Canada submits that since at common law, it was under no discovery obligation and since the statutory overruling of the common law does not provide for a motion for a further and better List of Documents, therefore, there is no jurisdiction to require one and the Plaintiffs’ summonses to challenge the adequacy of the List of Documents are an abuse of process.

[27] Canada submits that had Parliament intended that a Crown representative could be examined on a List of Documents produced by the Crown, it would have been open to Parliament to require the Crown to serve or file an Affidavit of Documents, as in the case of private litigants, or to state that the Crown may be examined on a List of Documents, but Parliament has not done so.

[28] Alternatively, Canada submits that while ostensibly being for the purpose of eliciting relevant evidence, the proposed examinations are premature and therefore, sought for an ulterior or improper purpose. It submits that the summonses are a fishing expedition in an attempt to find or make a case that there are more documents that ought to have been produced, which is the very subject matter of the main motion.

[29] Canada says that it will argue that the documents that the Plaintiffs are seeking by their motion for a better List of Documents are not relevant or if relevant need not be produced based on the principle of proportionality. Canada says, however, that if it is required to produce witnesses about whether certain categories of documents were considered or reviewed, this effectively predetermines that these categories of documents are relevant and producible. Thus, the summonses are abusive as premature. This argument is made in paragraphs 40 and 41 of Canada’s factum, which state:

40. By way of analogy, it has been held that questions on a Rule 39.03 examination in aid of an undertakings and refusals motion, which would provide relevant evidence in the action or would provide evidence of the very facts that the party on discovery undertook or refused to answer, are improper, since determination of the relevance of the question refused at discovery is precisely the matter to be determined on the main motion. In the present case, questions as to the alleged deficiencies in the AGC’s lists or supplementary lists of documents would be improper since the sufficiency of the AGC’s listing of documents is one of the core matters to be determined on the main Motion to Strike and is a function of relevance and proportionality, two aspects of documentary discovery to be fully argued on the Motion to Strike.

41. Albeit in different underlying circumstances, the Court has held that an examination under Rule 39.03 is improper where a party seeks to prematurely inquire into matters properly left for later determination. For example, in Fehringer v. Sun Media Corp. (2001), 2001 28060 (ON SC), 54 O.R. (3d) 31 (S.C.J.), the Court held that proposed Rule 39.03 examinations in relation to a motion for certification of a class proceeding constituted an abuse of process insofar as these examinations would: (i) allow the plaintiffs to conduct a general examination of the defendants before the close of pleadings; and (ii) impose a significant cost burden on those defendants before it was known if the action was certifiable. As noted above, cross-examination of Crown witnesses on the AGC’s document listing is premature given that it remains to be determined whether there are indeed deficiencies in the AGC’s listing and production, as alleged by the plaintiffs. This determination will take place following hearing of the Motion to Strike in July 2013.

D. DISCUSSION AND ANALYSIS

1. Introduction and Overview

[30] As may be observed from the above discussion of the background to the motion to quash the summonses, Canada submits that the three summonses are an abuse of process for two reasons.

[31] The first reason is essentially jurisdictional as Canada submits that given the historical immunity of the Crown to discovery, it is immune from having the adequacy of its List of Documents tested. The second reason is conventional as Canada submits that the three summonses may be quashed in accordance with the established law about when a summons is an abuse of process.

[32] I have not yet set out the Plaintiffs’ counterarguments because in the discussion and analysis part of my Reasons for Decision, with some departures, I intend to adopt the Plaintiffs’ arguments and restate them in my own language.

[33] The Plaintiffs’ first counterargument, with which I agree and which I will develop in the next part of my Reasons for Decision is that while there are some differences between the discovery obligations of the Crown and other litigants, for example, the Crown serves a List of Documents and not an Affidavit of Documents, the Crown is not immune from having its List of Documents challenged in accordance with the law associated with a motion for a further and better Affidavit of Documents. Under that law, a party is entitled to bring a motion to demonstrate that the Affidavit of Documents or a List of Documents is inadequate, and it is normal part of the motion procedure to serve a summons to gather evidence. In my opinion, it was thus permissible for the Plaintiffs to serve summonses in the case at bar to test whether the Crown has complied with its documentary discovery obligations. With a fuller explanation to follow, I conclude that Canada’s first argument fails.

[34] Having concluded the jurisdictional point, I will turn to Canada’s second argument that the summonses should be quashed on the conventional ground that they are an abuse of process. I will begin that discussion by describing briefly the law associated with a motion challenging the adequacy of an Affidavit of Documents, which is the law that will be applied when there is an allegedly deficient List of Documents. This description is necessary because determining the propriety of a summons for an examination in aid of a motion requires some understanding of the nature of the motion.

[35] As the discussion below will reveal, my view is that given the nature of the motion in the case at bar, the summonses were not an abuse of process. However, given the excesses of the demand to produce documents in the summonses, it is possible that the Plaintiffs might ask questions that go beyond the scope of a proper cross-examination of a witness on a pending motion.

[36] Therefore, in my opinion, the proper outcome of Canada’s motion to quash the summonses is to dismiss the motion but on terms that are designed to ensure that the summonses do not become an abuse of process. That outcome can be achieved by imposing the terms set out above in the Introduction to these Reasons for Decision.

2. The Discovery Obligations of the Crown

[37] At common law, there was no pre-trial discovery against the Crown: Tomline v. The Queen (1879), 4 Ex. D. 252; Quebec (A.G.) and Keable v. Canada (A.G.), 1978 23 (SCC), [1979] 1 S.C.R. 218 at pp. 245-246; Waverley (Village) v. Nova Scotia (Acting Minister of Municipal Affairs) (1993), 1993 NSSC 71, 16 C.P.C. (3d) 64 (N.S.S.C.) at paras. 33-40; Crombie v. The King (1922), 1922 576 (ON CA), 52 O.L.R. 72 (C.A.) at p. 77.

[38] In the 1950s, legislation made discovery against the Crown in right of Canada possible. See Crown Liability Act, S.C. 1952-1953, c. 30 and Crown Liability (Provincial Court) Regulations, P.C. 1954-1687. See now Crown Liability and Proceedings Act, R.S.C. 1985 c. C-50 and Crown Liability and Proceedings (Provincial Court) Regulations, SOR/9164.

[39] Apart from the jurisdiction provided by statute, the Superior Court does not have jurisdiction to compel production from the Crown in a civil proceeding: Abou-Elmaati v. Canada (Attorney General), 2010 ONSC 2055, varied 2011 ONCA 95.

[40] Under the federal legislation, for proceedings in Ontario, s. 27 of the Crown Liability and Proceedings Act stipulates that the Rules of Civil Procedure apply to Canada, subject to certain qualifications. Section 27 states:

27. Except as otherwise provided by this Act or the regulations, the rules of practice and procedure of the court in which the proceedings are taken apply in those proceedings.

[41] One of the qualifications is that Canada is not required to prepare an Affidavit of Documents. Rather, under s. 8 of the Crown Liability and Proceedings (Provincial Court) Regulations, SOR/9164, Canada is required to serve a “List of Documents.” Section 8 states:

8. (1) Subject to sections 37 to 39 of the Canada Evidence Act, where the Attorney General or an agency of the Crown would, if the Crown were a private person, be required under the provincial rules to file or serve a list or an affidavit of documents, the Deputy Attorney General shall, subject to the same conditions as apply between subject and subject, file or serve a list of documents relating to the matter of which the Crown has knowledge within 60 days after the event that under the provincial rules gives rise to the obligation to file or serve the list or affidavit, or within such further time as may be allowed by the court.

(2) Where, under provincial rules, a party would be entitled to obtain production for inspection of any document or a copy of any document as against or from the Crown, if the Crown were a private person, such production for inspection or copy may be had, subject to sections 37 to 39 of the Canada Evidence Act, under order of the court after consideration has been given to any objection that would be available to the Crown if the Crown were a private person.

[42] I pause here to note and will return below to the point that under comparable provincial legislation, there is a similar scheme with respect to the provincial Crown. The discovery scheme is pursuant to s. 8 of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, which states:

Discovery

8. In a proceeding against the Crown, the rules of court as to discovery and inspection of documents and examination for discovery apply in the same manner as if the Crown were a corporation, except that,

(a) the Crown may refuse to produce a document or to answer a question on the ground that the production or answer would be injurious to the public interest;

(b) the person who shall attend to be examined for discovery shall be an official designated by the Deputy Attorney General; and

(c) the Crown is not required to deliver an affidavit on production of documents for discovery and inspection, but a list of the documents that the Crown may be required to produce, signed by the Deputy Attorney General, shall be delivered.

[43] The Plaintiffs submit that Canada has the same obligations as any other litigant to produce relevant documents, except that it is required to do so in the form of a List of Documents rather than a sworn Affidavit of Documents. I agree with this submission.

[44] While the Plaintiffs acknowledge that a List of Documents is not an Affidavit of Documents, they submit that it does not follow that the court has no means to test and enforce the obligations of Canada to provide a proper and complete List of Documents.

[45] The Plaintiffs submit that there is no common law or statutory bar to this Court ordering a cross-examination on a list of documents. They point out that s. 8 of Crown Liability and Proceedings (Provincial Court) Regulations, SOR/9164 provides that the service of a List of Documents by the AGC is “subject to the same conditions as apply between subject and subject”. The Plaintiffs submit that if Canada’s argument that it is immune from having the adequacy of its List of Documents tested was correct, it would produce an absurd result. Thus, they state in paragraph 35 of their factum:

35. The AGC’s argument in this case, if accepted, would mean that none of the rules referable to affidavits of documents apply to the AGC’s lists of documents. That result is not based on any principle or logic, and is inconsistent with case law and s. 8 of the Regulations. As the Supreme Court stated in Carey v Ontario (Attorney General), 1986 7 (SCC), [1986] 2 SCR 637 at p 654, that view “would go against the spirit of the legislation enacted in every jurisdiction in Canada that the Crown may be sued like any other person.” It would effectively render meaningless the words “subject to the same conditions as apply between subject and subject” in s. 8 of the Regulations, which is contrary to fundamental tenets of statutory construction.

[46] In my opinion, Canada has misconceived the analytical approach to determining its discovery obligations. Although at common law, Canada has no discovery obligations and although it is true that apart from the jurisdiction provided by statute, the Superior Court does not have jurisdiction to compel production from the Crown in a civil proceeding, that statutory jurisdiction is provided by s. 8 of the Crown Liability and Proceedings (Provincial Court) Regulations, SOR/9164. Under s. 8 in circumstances where a private person would be required to serve an affidavit of documents, Canada must serve a List of Documents subject to the same conditions as would apply between private persons.

[47] In Proctor v. Canada, [2000] O.J. No. 658 (Master), Master Beaudoin, now Justice Beaudoin, ordered Canada to provide an Affidavit of Documents as opposed to a List of Documents. In Hallstone Products Ltd. v. Canada (Customs & Revenue Agency), supra, Justice Carnwath ruled that Proctor v. Canada and Logan v. Harper, [2003] O.J. No. 4098 (Master), another decision where Canada was ordered to serve an Affidavit of Documents, were wrongly decided on the point about the service of an Affidavit of Documents.

[48] In my opinion, Justice Carnwath was correct, but Hallstone Products does not answer the issue in the immediate case, which is whether there can be a motion for a further and better List of Documents. The answer to that question is provided by s. 8 of the Crown Liability and Proceedings (Provincial Court) Regulations, SOR/9164, which provides that the obligation of serve a List of Documents is subject to the same conditions as would apply between private sector litigants required to serve an Affidavit of Documents. Thus, Hallstone Products does not assist Canada’s argument.

[49] In Benatta v. Canada (Attorney General), [2009] O.J. No. 5392 (Master), Master Short interpreted Justice Carnwath’s decision in Hallstone Products narrowly to be a ruling that while Canada need not serve an Affidavit of Documents, its obligation to serve a List of Documents should be interpreted in a manner that would place the opposing party in as nearly an equal position as would be the case in private sector litigation. Master Short ordered Canada to serve a further and better List of Documents.

[50] As precedents go, you could hardly find a closer case to the case at bar than Bennata. It is an action against Canada with alleged facts similar to those alleged in the actions of Messrs. Almalki, Elmaati, and Nureddin, except that Mr. Bennata was allegedly detained and tortured in the United States and not in Middle East.

[51] Canada is also not assisted by Mazumder v. Ontario [2000] O.J. No. 4793 (S.C.J.), which concerned a constitutional challenge to the validity of s. 8 of Ontario’s Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, set out above. In ruling that the statute did not contravene the Canadian Charter of Rights and Freedoms, Justice Nordheimer mentioned that there is no jurisdiction in this court to entertain claims against the Crown except as provided for by statute. Accepting that proposition to be true, the point remains that s. 8 of the Crown Liability and Proceedings (Provincial Court) Regulations, SOR/9164, provides the authority for a challenge to the adequacy of the List of Documents.

[52] It is interesting and informative to note that in Maxumder, while Justice Nordheimer held that there was nothing unconstitutional about the Attorney General not being obliged to serve a sworn affidavit, he ordered Canada to produce certain documents that were in its possession and control.

[53] In the case at bar, there was nothing improper or impermissible in the Plaintiffs’ bringing a motion to challenge the adequacy of Canada’s List of Documents. It is a normal matter to serve a summons to examine witnesses in aid of a motion, Thus, Canada’s first argument fails; there is jurisdiction to serve the summonses.

[54] The issue that remains is whether the service of summonses in aid of the motion to challenge the List of Documents is an abuse of process, which is the issue to which I now turn.

3. Quashing a Summons on the Grounds that it is an Abuse of Process

[55] The above discussion leads to the conclusion that the normal law that applies to an Affidavit of Documents applies with necessary modifications to the Crown’s List of Documents. It is necessary to briefly describe that law because it is a factor in determining whether the summonses in the case at bar are an abuse of process.

[56] Under rule 30.06, a party may move for relief when it has reason to believe that the other party has not complied with its disclosure obligations. Rule 30.06 states:

WHERE AFFIDAVIT INCOMPLETE OR PRIVILEGE IMPROPERLY CLAIMED

30.06 Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may,

(a) order cross-examination on the affidavit of documents;

(b) order service of a further and better affidavit of documents;

(c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and

(d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege

[57] A party who considers the Affidavit of Documents of an opposite party to be unsatisfactory or insufficient may move for an order for a further and better affidavit and, in support of such motion, the moving party may file an affidavit and exhibits showing the facts upon which the allegation is based: Bow Helicopters v. Textron Canada Ltd., [1981] O.J. No. 2265, 23 C.P.C. 212 at para. 15 (Ont. Master); Mark Fishing Company v. United Fishermen & Allied Workers Union, [1968] B.C.J. No. 168 (1968), 1968 643 (BC CA), 68 D.L.R. (2d) 410 (B.C.C.A.).

[58] A party may move for a further and better affidavit of documents from his or her opponent, but the motion must be based on more than speculation, intuition or guesswork, and for an order requiring a better affidavit, the moving party must demonstrate some basis for concluding that his or her opponent has overlooked or withheld documents: Richardson Technologies Inc. v. Gowling Lafleur Henderson LLP,[2003] O.J. No.1298 (Master); RCP Inc. v. Wilding, [2002] O.J. No. 2752 (Master); Bow Helicopters v. Textron Canada Ltd., [1981] O.J. No. 2265 (Master); Nelma Information Inc. v. Holt, [1985] O.J. No. 373 (H.C.J.).

[59] The case law establishes that in order for the court to make an order that there should be a further and better Affidavit of Documents, there must be some evidence that there has been an omission such that production and/or inspection ought to be ordered, and there is no right to in effect “rummage through an opponent’s filing cabinets” or computers, etc., to see if there is anything interesting: Rossi v. Vaughan (City), [2010] O.J. No. 203 at paras. 10-11 (Master); Borst v. Zilli, [2009] O.J. No. 4115 (Master); Vector Transportation Services Inc. v. Traffic Tech Inc., [2008] O.J. No. 1020 at paras. 15-16 (S.C.J.). However, the case also establishes that the level of proof required should take into account the fact that one party has access to the documents and the other does not: Leduc v. Roman, 2009 6838 (ON SC), [2009] O.J. No. 681 at para. 14 (S.C.J.); RCP Inc. v. Wilding, [2002] O.J. No. 2752 at para. 12 (Master).

[60] With this background, I can now turn to the law about when it is appropriate to quash a summons in aid of a motion or application.

[61] The case law establishes that where a party serves a summons to examine a witness for a pending motion or application, an opposing party may move to quash the summons for the examination of the witness on the ground that the evidence sought is not relevant to the application or motion or that the examination or the underlying proceeding would amount to an abuse of process: Canada Metal Co. v. Heap (1975), 1975 675 (ON CA), 7 O.R. (2d) 185 (C.A.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 7258 (ON SC), 27 O.R. (3d) 291 (Gen. Div.); Schreiber v. Mulroney (2007), 2007 82797 (ON SC), 87O.R. (3d) 643 ( S.C.J.).

[62] If the summons to the witness is challenged, the party seeking the examination should be prepared to show that the evidence is relevant to the pending application or motion and that the party to be examined is in a position to provide the evidence: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 7258 (ON SC), 27 O.R. (3d) 291 (Gen. Div.); Heslin v. Verbeeten, [2001] O.J. No. 1602 (S.C.J.); Siegel v. Mulvihill Capital, [2009] O.J. No. 265 (S.C.J.).

[63] If the party seeking the examination cannot satisfy the relevancy and evidentiary screening, then the summons is regarded as a fishing expedition and an abuse of process: Canada Metal Co. v. Heap (1975), 1975 675 (ON CA), 7 O.R. (2d) 185 (C.A.); Schreiber v. Mulroney (2007), 2007 82797 (ON SC), 87 O.R. (3d) 643 (S.C.J.); René v. Carling Export Brewing & Malting Co. (1927), 1927 382 (ON SC), 61 O.L.R. 495 ( S.C.); Agnew v. Ontario Assn. of Architects (1988), 1987 4030 (ON SC), 64 O.R. (2d) 8 (Div. Ct.); Bettes v. Boeing Canada/DeHavilland Division (1992), 1992 7789 (ON SC), 10 O.R. (3d) 768 (Gen. Div.); Beck v. Bradstock (1976), 1976 874 (ON SC), 14 O.R. (2d) 333 (H.C.J.); Lauzon v. Axa Insurance (Canada) 2012 ONSC 6730 (S.C.J.) at paras. 27-28. Similarly, if the examination is being used for an ulterior or improper purpose, or if the process is itself an abuse, it will be set aside on that ground: Beck v. Bradstock (1976), 14 O.R. (2d) 333 (H.C.J.).

[64] An examination is improper if the purpose of the examination is to prematurely inquire into a party's defences or otherwise commence the discovery process: Ainslie v. CV Technologies Inc. (2008), 2008 63217 (ON SC), 93 O.R. (3d) 200 at para. 27 (S.C.J.); Fehringer v. Sun Media Corp. (2001), 2001 28060 (ON SC), 54 O.R. (3d) 31 at p. 35 (S.C.J.); Sun-Times Media Group Inc. v. Black, [2007] O.J. No. 795 at paras. 46-47 (S.C.J.).

[65] In considering whether to strike a summons to a witness, the court will consider the nature and grounds for the application to determine what are the issues for which the examination is in aid: Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), 2002 41606 (ON CA), [2002] O.J. No. 1445, (C.A.), leave to appeal refused [2002] S.C.C.A. No. 252 (S.C.C.); Ashley v. Marlow Group Private Portfolio Management Inc., [2005] O.J. No. 4941 ( S.C.J.); Alpha Forest Products Inc. v. Hanna, [2006] O.J. No 3212 (S.C.J.); Teranet Inc. v. Canarab Marketing Corp., [2007] O.J. No. 745 (S.C.J.).

[66] Once the party seeking to conduct the examination shows that the proposed examination is about an issue relevant to the pending application and that the party to be examined is in a position to offer possibly relevant evidence, it is not necessary for the party to go further and show that the proposed examination will provide evidence helpful to that party’s cause: Manulife Securities International Ltd. v. Société Générale (2008), 2008 13367 (ON SC), 90 O.R. (3d) 376 (S.C.J.), leave to appeal to Ont. Div. Ct. refused [2008] O.J. No. 1698 (Div. Ct.); Heslin v. Verbeeten, [2001] O.J. No. 1602 ( S.C.J.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 7258 (ON SC), 27 O.R. (3d) 291 (Gen. Div.).

[67] If the evidence would be possibly relevant to the issues, the burden is on the party challenging the summons to show that the examination or the underlying application is an abuse of process: Manulife Securities International Ltd. v. Société Générale (2008), 2008 13367 (ON SC), 90 O.R. (3d) 376 (S.C.J.), leave to appeal to Div. Ct. refused [2008] O.J. No. 1698 (Div. Ct.); Heslin v. Verbeeten, [2001] O.J. No. 1602 ( S.C.J.).

[68] In considering whether to quash a summons, the court may consider the merits of the underlying proceeding: Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), 2002 41606 (ON CA), [2002] O.J. No. 1445 (C.A.), leave to appeal refused [2002] S.C.C.A. No. 252 (S.C.C.).

[69] Applying the above law to the circumstances of the immediate case, in my opinion, in the case at bar, the Plaintiffs have met the onus of showing that that the evidence of Madams Henderson, Parsons, and Thomsen would be relevant to the pending application and Canada has not met the onus of showing that the service of the summonses was an abuse of process.

[70] The most that Canada has shown is that it has reason to be apprehensive that the Plaintiffs will use the examinations of Madams Henderson, Parsons, and Thomsen beyond their proper purposes. The Crown’s apprehension is based largely on the extensive far-reaching demand for the production of documents included in the summonses, which Plaintiffs’ counsel commendably conceded was beyond what the Plaintiffs need for the examinations. The very broad demand gives the impression that the Plaintiffs are fishing for information or that they may be attempting to impose obligations on Canada that would offend the proportionality principle.

[71] However, within the context of a motion to quash a summons, the Crown’s apprehension of an improper examination does not meet the onus of showing that the summonses are an abuse of process and any improper examination can be dealt with in the normal way by counsel objecting to improper questions.

[72] To the extent that anything prophylactic need be done to prevent an abusive examination, all that needs to be done is to strike the overreaching demand in the summonses and to re-order the order of the examinations so that the examinations of Canada’s deponents precedes the examinations of Madams Henderson, Parsons, and Thomsen and to provide that Canada may object to answering questions on the grounds that they have already been answered.

[73] I regard these terms as a matter of procedural fairness. The Plaintiffs’ scepticism about the knowledge of Canada’s deponents about the issues is at best speculative, and it should be recalled that as a matter of procedural fairness in an adversarial system governed by the Rules of Civil Procedure, Canada should have the opportunity to select its own witnesses and in selecting a witness, under the Rules of Civil Procedure. it is entitled to provide evidence based on information and belief.

E. CONCLUSION

[74] For the above reasons, I dismiss Canada’s motion

[75] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Plaintiffs’ submissions within 20 days of the Release of these Reasons for Decision followed by Canada’s submissions within a further 20 days.

Perell, J.

Released: May 30, 2013

COURT FILE NO.: 06-CV-308130 PD3

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AHMAD ABOU-ELMAATI, BADR ABOU EL MAATI, SAMIRA AL-SHALLASH AND RASHA ABOU-ELMAATI

Plaintiffs

‑ and ‑

THE ATTORNEY GENERAL OF CANADA, JOHN DOE AND JANE DOE

Defendants

REASONS FOR DECISION

Perell, J.

Released: May 30, 2013