COURT FILE NO.: CV-07-330175PD3
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NANAK P. SINGH and HARPREET DUA
Plaintiffs
– and –
THE ATTORNEY GENERAL OF CANADA
Defendant
Plaintiffs, appearing in person
E Tinker and W. Wright, for the Defendant
HEARD: September 21, 22, 23 & 25, 2015
REASONS FOR DECISION
HOOD j.
1This is an action by Mr. Nanak P. Singh (“Singh”) for negligence and negligent investigation against the Canadian Government (“Canada”). His wife, Harpreet Dua (“Dua”), makes a claim pursuant to the Family Law Act, R.S.O. 1990, c. F.3 against Canada. The claims by Mr. Singh and Ms. Dua are sizeable. However, at the commencement of the trial, Mr. Singh, who acted throughout on his own behalf and on behalf of Ms. Dua, together with counsel for Canada, advised that I was only to deal with the question of liability, and that the parties had agreed to address the issue of damages at a future date depending on the outcome of the trial before me.
2Mr. Singh’s position is that Canada has caused him damage by spreading false information about him to countries around the world, and that following two incidents in 2005, Canada failed to take any action, and by so doing, was negligent.
3Canada’s position is that it did not owe a duty of care to Mr. Singh in relation to his complaints, but that even if it did, there was no evidence to support his allegations that Canadian officials caused him harm.
4For the reasons that follow I dismiss the plaintiffs’ claim.
FACTUAL BACKGROUND
Factual Background
5The first incident occurred on March 27, 2005. Having recently received their Canadian citizenship, Mr. Singh and Ms. Dua travelled to Niagara Falls with their two children, then aged 11 and 9, to celebrate. They drove from their home in the GTA, and when they reached Niagara Falls, they went to look at the falls from the United States side.
6Mr. Singh testified that they drove without incident through the Canadian customs. When they reached United States customs, Mr. Singh handed over the family’s passports and citizenship cards to the United States agent. Mr. Singh believes that these documents were then “put through the system”, as he put it. He was asked to step out of the car and to open the trunk for inspection. He got out, and as he walked towards the trunk, a number of armed personnel “pounced” on him, again as he put it, handcuffed him and dragged him away to a cold room without windows, where he was kept with no food or water, and asked questions by a variety of individuals for approximately four hours. At one point, he had to use the toilet. He was taken to a filthy toilet which he found disgusting. Mr. Singh also gave evidence that during his confinement, he heard United States officials making lewd comments about his son. He felt that all of this was part of torture techniques designed to break him down. At one point, he was convinced that one of those questioning him was a Canadian Security Intelligence Service (“CSIS”) agent. Mr. Singh said he determined this by his questioner’s demeanour and the questions he was asking.
7Eventually he was fingerprinted, his photo was taken, and he was denied entry by the United States border security personnel. Mr. Singh concluded that the only reason for this treatment and the denial of his entry was that the United States had misinformation about him. The only source of this misinformation, to his mind, was CSIS, and in particular, one agent who had allegedly threatened him during his citizenship application process many years before, when he refused to divulge information about his past in the Indian army.
8On March 29, 2005, two days after the incident in Niagara Falls, Mr. Singh emailed a lengthy letter of complaint to President George W. Bush, which was copied and emailed to Prime Minister Paul Martin, the Minister of Justice Irwin Cotler, the Minister of Foreign Affairs Pierre Pettigrew, and the United States Ambassador to Canada. In it, Mr. Singh alleged, among other things, that he had been tortured, his children had been starved, the guards were racist, and some made sexually reprehensible remarks about his son. He further wrote that he was reminded of slave citizenship; that he understood why the whole world hates the United States and why there were suicide attacks; that the guards were “well-fed trigger-happy crooks” who would kill anyone at the merest pretext; that if he argued they might kill his family; that the guards were unintelligent and thickheaded; that Canada informs (sic) the United States to torture its citizens; that some of the guards were pedophiles; that the guards damaged one side of his car; that he, his wife and his children had been tortured for over four hours by United States guards; that Canada has never taken the case of a non-white citizen seriously; that Canada breeds kidnapping and torture; that Canada is planning to put tracking devices on its citizens; and that Canada has different classes of citizenship depending on race, skin color, and place of birth. This is but a sampling of what was contained in his letter.
9Many lengthy letters from Mr. Singh were put into evidence at trial. While there was no issue as to them being sent and received, the letters are not proof of the truth of their content. For example, the statements made in the letters by Mr. Singh as to what he was told by other parties, what had transpired, or what he concluded, is not evidence of their truth.
10He received a response from the United States Embassy in Ottawa dated April 5, 2005, from United States Customs and Border Protection dated June 24, 2005, and from the Prime Minister’s office in early April, 2005. None of the responses were satisfactory to Mr. Singh. He replied to the response from the Prime Minister’s office with an email, complaining amongst other things, about his local Liberal MP and the government’s discrimination based on skin color. He also referenced Maher Arar as he had in his earlier letter. Throughout the trial, Mr. Singh likened his treatment to that of Mr. Arar and his rendition, imprisonment, and torture in Syria.
11Mr. Singh’s evidence that he had been handcuffed when he stepped out of the car and had been detained for approximately four hours was basically corroborated by Ms. Dua and Mr. Singh’s two children. They also confirmed that while they waited at the United States border crossing building, they were not provided with anything to eat. They were all upset by Mr. Singh’s detention.
12Mr. Singh’s allegation that one of the individuals questioning him was a CSIS agent was not contained in his 23-page, 69-paragraph Amended Fresh as Amended Claim of June 1, 2009. His belief was based upon the friendly demeanour of this one agent, and that certain questions had to do with Toronto and the GTA, which Mr. Singh concluded only a Canadian would know. All of the others Mr. Singh concluded, based upon his experience, were American.
13The second incident concerns Mr. Singh’s attempts to obtain a visa from the Australian government so that he could travel to Australia for a business opportunity.
14Mr. Singh testified that in April, 2005, he, Ms. Dua and their children made electronic applications for Australian visas with the Australian government. While Ms. Dua’s and the children’s were approved, Mr. Singh’s was not. He was told by the Australian authorities to make a paper visa application through the appropriate office in Ottawa. He did so.
15Ms. Dua and the children travelled to India for a vacation, and Mr. Singh waited in Canada for the Australian visa. When it was not immediately forthcoming, Mr. Singh decided to travel to India in the hope that he could pick up the visa from the Australian High Commission in New Delhi. Once in India, Mr. Singh began to exchange emails with the Australian authorities who told him that the visa was being processed, but they did know when the application would be finalized.
16Mr. Singh’s evidence is that he then contacted the Australian High Commission in New Delhi, and was told to get a letter from the Canadian High Commission in New Delhi. In his evidence, he did not say what sort of letter he was supposed to get, but presumably it was some sort of clearance letter from Canada. He then went to the Canadian High Commission in New Delhi at the beginning of June, 2005. He thought he would be given a warm welcome, but he said his actual experience was “horrifying”. He was unable to meet the Canadian consul. Instead, a Mr. Jaswinder Singh, the Senior Consular Program Officer for the Canadian High Commission, was sent out to speak to him. The plaintiff said he felt insulted that he was being forced to speak to an Indian rather than a Canadian citizen. He was certain that this was deliberate. He did not want to deal with Mr. Jaswinder Singh. Mr. Jaswinder Singh told the plaintiff to put his complaints in writing.
17Mr. Singh then wrote a letter titled “Re: Canadian Government Connivance In Effecting Torture and Harassment Of Its Own Citizens”. He wrote that being denied an immediate meeting with the Canadian consul was the equivalent of being subjected to torture and harassment. He wanted to know why non-white Canadian citizens were treated this way and issued passports that were useless.
18Mr. Singh then wrote a lengthy letter to the Canadian High Commission on June 27, 2005 which he called his “distress” letter. In it, he complained at length, amongst other things, about his treatment by the High Commission in New Delhi, the lack of response to his visa situation, the failure of the Canadian government or High Commission to write to the Australian High Commission or the United States Embassy, his mistreatment based on his ethnicity, his torture by the United States border agency in Niagara Falls, and how all Canadian foreign missions need a massive overhaul.
19On July 20, 2005, Mr. Singh received a response dated July 18, 2005 from Foreign Affairs Canada to some of his earlier correspondence, namely the letter of March 29, 2005, directed to President Bush and copied to various Canadian government officials regarding Niagara Falls, and his more recent letter from early June, 2005 titled “Canadian Government Connivance” regarding New Delhi.
20In it, a Mr. Dyet explained that the United States Customs and Border Protection officials determine who can or cannot enter the United States and determine how individuals are treated at the border. He also explained that it was not within the purview of any Canadian authority to interfere in the Australian visa decision-making process.
21Mr. Singh dismissed this letter as a generic and lame response and not the intervention that he wanted from the Canadian government.
22Not obtaining any satisfaction from the Canadian High Commission, Mr. Singh testified that he decided to visit the United States Embassy in New Delhi to see if he could find out why he could not get his Australian visa, and whether the United States had information about him which had caused the problem at Niagara Falls or with the Australian government. He visited the Embassy twice towards the end of September, 2005.
23During the first of his visits, he met with a United States visa officer who advised him that there was nothing in the United States system about him. On the second visit, he met with the United States consul who repeated that there was nothing in the system about him. He was then asked by the consul to wait in a room at the back of the Embassy. While waiting he was approached by another individual who apparently refused to give his name, and who asked questions similar to those he had been asked in Niagara Falls. Mr. Singh suspected that this person was either from the CIA or CSIS. Mr. Singh believed he was now in a difficult situation especially when he saw uniformed marines standing outside the room he was in. He gave evidence that he now feared he was about to be rendered somewhere and tortured.
24He decided to leave. He left the room and then ran out of the embassy. He concluded that the marines did not stop him as they had no direct orders to do so.
25On January 27, 2007, long after his application, Mr. Singh was advised by a visa officer working in the Australian High Commission in Ottawa that his visa to Australia had been approved and explained the process to obtain it. Mr. Singh responded by telling him that he intended to file a multi-million dollar lawsuit against the Australian government for causing him irreparable harm based on unverified information, and participating in a defamation campaign against him. No evidence was presented as to whether Mr. Singh actually proceeded with such a claim.
26Mr. Singh did, however, issue a claim on his own behalf, and on behalf of Ms. Dua and his children, against the United States government, on April 26, 2007, for $2.6 billion in damages arising from the Niagara Falls incident and what happened in New Delhi at the United States Embassy. His claim was against the Attorney General of the United States, the United States Secretary of State for Homeland Security, United States Customs and Border Protection, the guards at Niagara Falls, the United States consul in New Delhi, the senior visa officer in New Delhi, and the United States Secretary of State.
27On December 21, 2009, the Registrar made an order dismissing the claim as abandoned. Mr. Singh brought a motion to set aside the Registrar’s order. It was heard by Justice Pitt on April 14, 2010. Justice Pitt dismissed the motion.
28The defendant called Mr. Sean Blane as its sole witness. Mr. Blane is currently the Deputy Director of Consular Case Management with the Department of Foreign Affairs, Trade and Development. As he described it, he is a foreign service officer with a specialization in consular services. He served in a number of missions abroad since 2004 and was currently working in Ottawa in his capacity as Deputy Director.
29From his review of the Department of Foreign Affairs’ case notes which were placed in evidence before me as business records and without objection from Mr. Singh, he concluded that the situation in New Delhi had been handled properly by the consular officials there. As he explained, it is the sovereign right of each country to determine how it issues visas. Canada cannot tell another country such as Australia what to do, any more than Australia could tell Canada what to do. This was what Mr. Dyet had told Mr. Singh in his response of July 18, 2005. Nor would the Canadian High Commission or the Canadian government issue a letter to another country advising that Canada had nothing ‘adverse’ against Mr. Singh. All that the consular officials could do, would be to re-direct someone like Mr. Singh to another resource, such as a lawyer with knowledge of the other country’s legal system, or to the appropriate person or department in the other country who might be able to assist. He testified that the New Delhi consular officials’ conduct throughout in dealing with Mr. Singh was proper and appropriate.
30Similarly, in relation to the Niagara Falls incident, Mr. Blane gave evidence that the Canadian government could not tell the United States border agency what to do. He stated that Canada cannot tell the United States who to let in or how to treat them at their borders, any more than the United States can tell Canada who to let in and how they should be treated. Mr. Blane testified that the correct protocol would be to advise the individual with the problem to speak to a United States lawyer and to address the problem in the United States.
31Mr. Blane stated that while there are some areas where the Canadian government might get involved, such as the mistreatment of a Canadian citizen in a foreign prison, visa applications and border crossing are two areas in which the Canadian government does not get involved.
ANALYSIS
Analysis
32I accept that Mr. Singh was denied entry to the United States on March 27, 2005 at Niagara Falls by the United States Customs and Border Protection officials. I also accept that the detention was unpleasant. I do not find that his detention amounted to torture. On the evidence before me, I do not find that a CSIS agent was involved in the incident described by Mr. Singh. Mr. Singh’s intuition and feelings about one of his interrogators are not enough for me to reach that conclusion.
33I accept that Mr. Singh’s visa application to Australia took one year and nine months to be processed and accepted by the Australian government. No evidence was presented as to whether this was unusual or out of the ordinary, or why it took this length of time.
34I also accept that Mr. Singh could not get any Canadian consular officials in New Delhi to intervene on his behalf with the Australian government. I accept that Mr. Singh was questioned by someone while at the United States Embassy in New Delhi. I am not prepared to find that this individual was a CSIS agent as again Mr. Singh failed to prove this fact. Mr. Singh’s suspicion is not enough. In any event, Mr. Singh equally thought that this individual could have been a CIA agent.
35Having accepted that the Niagara Falls incident occurred, I am not satisfied that Mr. Singh has proved that the defendant was in any way involved in it. Nor am I satisfied that Mr. Singh has proved that the defendant or any Canadian officials instigated Mr. Singh’s detention or provided any information, let alone misinformation, to the United States government which led to his detention. I am not satisfied that Mr. Singh has proved that the defendant or any Canadian officials provided any information let alone misinformation to the Australian government which somehow impacted his visa application. The fact that he was eventually approved for his Australian visa suggests that there was nothing provided, or if it was, it did not concern the Australian visa office. As mentioned earlier, without any evidence as to the Australian visa process, I cannot even say whether the length of time it took was unusual. Further, there is absolutely no evidence of anything untoward taking place at the United States Embassy in New Delhi. Mr. Singh’s imaginings of rendition and torture is not actionable against the United States let alone Canada.
36I am not satisfied that Mr. Singh has proved that the defendant failed to properly respond to either the Niagara Falls incident or the New Delhi incident. Mr. Blane’s uncontradicted evidence is that these are matters where the Canadian government does not get involved.
37As set out above, I find that there is no evidence that Canada spread false information about Mr. Singh to countries around the world. Mr. Singh in argument acknowledged that he had no direct evidence proving this. Mr. Singh argued that since the Canadian government had information about him obtained during his lengthy application for Canadian citizenship, that this combined with his detention in Niagara Falls, his “near death experience” in the United States Embassy in New Delhi, and his delayed visa application, and the fact that Canada had never refuted his accusations of passing on misinformation as contained in his letters but merely sent standard letters in reply, was proof enough. I disagree.
38Putting it in its simplest terms, the plaintiffs did not provide any evidence that there was any false information about Mr. Singh with the United States officials or with Australia. Nor did the plaintiffs provide any evidence that even if there was false information that it came from Canada. The plaintiffs had the burden to prove both steps. They failed to do so.
39Mr. Singh also argued that the findings of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar was evidence of the spreading of false information about him. I can make no such connection between what happened to Mr. Arar in 2002 and 2003 to what happened to Mr. Singh in 2005.
40Mr. Singh argued that the defendant is liable under the tort of negligent investigation. While the tort exists, see Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, it has not been made out here. Leaving aside whether there is a duty of care in the case before me, and whether there are policy considerations negating a prima facie duty of care, there is no evidence that any investigation by the defendant carelessly reached a faulty conclusion with respect to Mr. Singh. Nor is there any evidence to establish any connection between the defendant and the actions of the United States officials in Niagara Falls, or in New Delhi (such as they were), or the Australian government in processing Mr. Singh’s visa application, which are necessary components for the tort to be made out.
41The defendant argues that there is no duty of care owed to the plaintiffs in the circumstances of this case by any governmental agencies.
42The defendant argues on the basis of Syl Apps Secure Treatment Centre v. B.D. 2007 SCC 38, [2007] 3 S.C.R. 83 at paras. 49 - 50, that both the Canadian Security Intelligence Service Act, R.S.C., 1985, c. C‑23 and the Foreign Affairs and International Trade Act, R.S.C., 1985, c. E‑22 foreclose any private law duty of care to the plaintiffs. However, I do not have to enter into that analysis as to whether there is a duty of care owed by the defendant to Mr. Singh as he has failed to prove any facts to establish the basis of his claim against the defendant. His claim is therefore dismissed.
43Ms. Dua’s claim is a derivative claim under the FLA. No direct negligence claim is made by her against the defendant for damages arising out of the Niagara Falls incident or the New Delhi incidents. In fact, she had no involvement in the New Delhi incidents. Accordingly, her claim is also dismissed.
MOTIONS
Motions
44Following the closing of evidence, Mr. Singh brought a motion to amend his claim to grant a variety of immediate declaratory relief pending the assessment of damages at a future date. He relied upon Rule 26.01. The motion was opposed by the defendant. The defendant argued that it was too late to seek an amendment. The defendant had based its case upon the claim as it existed and it would now be prejudiced by such a late amendment.
45I dismissed the motion for a number of reasons but primarily on the basis that the prejudice to the defendant could not be compensated for by costs or an adjournment, coming as it did following the closing of evidence. The changes to the prayer for relief were so substantial that it was conceivable that the defendant may have conducted its defence differently had they been part of the claim prior to trial. As well, much of the relief related not to the plaintiffs, but to the children who were not parties. Moreover, some of the relief sought was the same as what had been part of the initial claim which had been struck out by Justice Belobaba on January 5, 2009. In my view, it would be improper to allow these amendments having already been struck once.
46What is more telling is how some of the amendments being sought demonstrate the failure of the plaintiffs to prove their claim. At paragraph 6 of the proposed amendments, the plaintiffs seek to have the defendant find out from the United States and Australia if harmful information about them exists in their respective records. At paragraph 8, the plaintiffs seek to have the defendant find out why the plaintiffs were refused entry to the United States and Australia in 2005.
47The plaintiffs did not prove why the United States detained Mr. Singh at the United States border, or why the Australian visa was delayed. The plaintiffs did not prove that the United States or Australia had anything about Mr. Singh in their records. And most importantly, the plaintiffs did not prove that if they did have anything that it came from Canada.
48The plaintiffs also brought a motion at the end of the evidence to have the court file sealed because it contains personal and sensitive information about them and their children. No authority was provided by the plaintiffs in support of this motion. No reference was made to the basis of my authority to do so. Under s. 137(2) of the Courts of Justice Act, I have the authority to seal a court document. Presumptively, court files are open to the public. The burden to seal the court file lies upon the person opposing potential public disclosure. Here the plaintiffs failed to provide any argument or evidence to warrant doing so and I am not prepared to make such an order.
COSTS
Costs
49As to costs, I was provided with the defendant’s costs outline and submissions at the conclusion of the argument. The plaintiffs had no submissions and I ordered Mr. Singh to provide his submissions within two weeks of September 25, 2015. He did so. I have thoroughly reviewed the submissions of both parties.
50Being successful at trial the defendant is presumptively entitled to costs. The fixing of costs is discretionary under s. 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01.
51The defendant asks for costs on a substantial indemnity basis. Undoubtedly, Mr. Singh was extremely difficult to deal with throughout the litigation, writing lengthy and often insulting letters and emails to the defendant’s counsel, missing deadlines and failing to comply with court orders along the way. In acting on his own behalf and on behalf of his wife, some leniency can be accorded to him. However, early on in the litigation, Justice Belobaba on the first motion to strike the plaintiffs’ claim, mentioned above, wrote that Mr. Singh would be well advised to retain legal counsel, and that if he decides otherwise, he should realize that self-represented litigants are required to comply with the Rules. His claim also makes improper allegations of bad faith and misconduct against the defendant which is another consideration to the level of costs to be awarded.
52I am not prepared to award costs on a substantial indemnity basis as Mr. Singh’s actions do not, in my view, meet the level of being reprehensible, scandalous or outrageous conduct deserving of sanction. Substantial indemnity costs are only to be awarded in rare and exceptional circumstances. I find costs should be fixed on a partial indemnity basis. The defendant asks for costs of $43,204 on a partial indemnity basis.
53Overall, I am required to consider what is fair and reasonable for the unsuccessful parties to pay rather than actual costs incurred by the successful party, although that is a factor. As well, pursuant to s. 131(2) of the Courts of Justice Act, costs are not to be disallowed or reduced merely because they relate to lawyers like Ms. Tinker and Ms. Wright who are salaried officers of the Crown.
54The fact that Mr. Singh is acting for himself and Ms. Dua does not disentitle the defendant to costs. I have reviewed the defendant’s costs outline. The hourly rates are reasonable. For the most part, the hours spent are reasonable. I find the pre-trial and pre-hearing hours spent from 2013 - 2015 to be somewhat excessive. Also, Ms. Wright was not at trial every day and the trial took four days rather than five.
55In all the circumstances, and in the exercise of my discretion, I consider costs in the amount of $35,000, inclusive of HST and disbursements, to be a reasonable amount and well within the contemplation of the plaintiffs.
HOOD J.
Released: November 9, 2015
COURT FILE NO.: CV-07-330175PD3
DATE: 20151109
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NANAK P. SINGH and HARPREET DUA
Plaintiffs
– and –
THE ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR DECISION
Hood J.
Released: November 9, 2015