Reasons on Motion

COURT FILE NO.: 15-64657 DATE: 2016-06-01

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

ROLAND EID Self-Represented Plaintiff/Responding Party

- and -

THE ATTORNEY GENERAL OF CANADA Kevin Palframan, for the Defendant Defendant/Moving Party

HEARD: May 17, 2016, at Ottawa, Ontario

MADAM JUSTICE B. R. WARKENTIN

[1] The Defendant, the Attorney General of Canada, seeks to have Roland Eid’s statement of claim struck out without leave to amend. In the event that I permit any part of Mr. Eid’s claim to continue, the Attorney General of Canada seeks an order extending the time to file the statement of defence.

[2] Mr. Eid’s original statement of claim included six defendants who, at the time the statement of claim was issued, held certain government positions, as follows: a) The Honourable Peter Gordon Mackay, Minister of Justice and Attorney General of Canada; b) Commissioner: The Royal Canadian Mounted Police (RCMP); Commissioner Bob Paulson; c) Commissioner / Director: The Canadian Security; Intelligence Services (CSIS), Mr. Michel Coulombe; d) Minister; Foreign Affairs, Trade and Development; Canada, The Honourable Robert Nicholson; e) Minister: Public Safety Canada, The Honourable Steven Blaney; and f) Minister: Public Works and Government Services, Canada, The Honourable Diane Finley.

[3] The title of the proceeding was amended on consent on December 17, 2015 to name the Attorney General of Canada (the “AG”) as the sole defendant pursuant to Section 23(1) of the Crown Liability and Proceedings Act, RSC 1985, c C-50, which states that:

Proceedings against the Crown may be taken in the name of the Attorney General of Canada or, in the case of an agency of the Crown against which proceedings are by an Act of Parliament authorized to be taken in the name of the agency, in the name of that agency.

[4] The AG’s position is that the statement of claim should be struck in its entirety, without leave to amend, because: a) It fails to establish a reasonable cause of action as against the AG; b) It is frivolous, vexatious, or otherwise an abuse of the process of the court; c) Allowing it to proceed as pleaded would prejudice or delay the fair trial of this action; and/or, d) Mr. Eid is without legal capacity to pursue certain claims pleaded.

[5] The AG argued that the statement of claim should be struck on four grounds: a) The claim should be struck pursuant to Rule 21.01(b) of the Rules of Civil Procedure, RRO 1990, Reg 194, because it fails to disclose a reasonable cause of action; b) It is plain and obvious on the face of the claim that the causes of action pleaded cannot succeed and should be struck as frivolous, vexatious, or an abuse of process pursuant to Rules 21.01(3)(d) and 25.11(c); c) The claim should be struck pursuant to Rule 25.11(a) because allowing it to proceed as pleaded would prejudice or delay the fair trial of this action; and d) Portions of the claim should be struck pursuant to Rule 21.01(3)(b) because the Plaintiff is without legal capacity to pursue them.

[6] The statement of claim is 40 pages long. It is unclear how many paragraphs are in the statement of claim because they are not all numbered. Additionally, the allegations are not presented chronologically and are difficult to understand.

[7] Having reviewed the statement of claim, I agree with the submissions of the AG that while not all of the following causes of action or their constituent elements were pled; a liberal reading of the statement of claim suggests that Mr. Eid is attempting to advance the following: a) negligence; b) negligent investigation; c) malicious prosecution; and d) intentional infliction of mental distress.

[8] The AG argued that Mr. Eid’s claims in negligence, negligent investigation, malicious prosecution and intentional infliction of mental distress should be struck for failing to plead the necessary elements and material facts to establish a tort, for failing to plead any damages caused or contributed to by the AG’s conduct, and for failing to have standing to plead the allegations.

[9] Mr. Eid seeks to pursue all of his claims as set out in the statement of claim and asked the court to dismiss the AG’s motion.

Background

[10] Mr. Eid is a Canadian citizen living in Ottawa, ON who claims to have been a paid informant of the Canadian Security Intelligence Service (CSIS) from 1999 to 2007.

[11] Mr. Eid states that in September 2007 he received a phone call from Hezbollah, the Lebanese militant Islamist group and political party, threatening harm to him and his family if he did not return to Lebanon. Mr. Eid returned to Lebanon with his wife and three children on December 25, 2007.

[12] Mr. Eid remained in Lebanon until March 2012, when he returned to Canada. Upon his return, he was charged with a number of criminal offences relating to the bankruptcy of his Ottawa-based construction company, ICI Construction Management (“ICI”). The allegations included that Mr. Eid had committed various frauds or engaged in fraudulent activities. ICI had been petitioned into bankruptcy in January 2008 by one of its creditors.

[13] Mr. Eid denied that he had engaged in the frauds alleged and commenced this litigation in July 2015.

[14] Mr. Eid claims that it is the AG’s motion to strike his pleadings that is frivolous, vexatious or otherwise an abuse of the process of the court and an abuse of power by the AG.

[15] Mr. Eid also claims that an order striking his statement of claim would violate his constitutional rights under s. 24 of the Canadian Charter of Rights and Freedoms, to access to the court in order to obtain a remedy.

The Law re: Striking of Pleadings

[16] The factum of the AG set out the Rules of Civil Procedure and the supporting authorities under which pleadings may be struck, as follows: a) A pleading may be struck under Rule 21.01(1)(b) where it discloses no reasonable cause of action. To succeed on such a motion, the moving party must establish that it is plain and obvious on the facts pleaded that the action cannot succeed. [1] If there is a chance that the plaintiff might succeed, the claim should not be struck. b) A pleading may be struck under Rules 21.01(3)(d) and 25.11(c) where it is frivolous, vexatious, or otherwise an abuse of the process of the court. The test to be applied on a motion to dismiss an action under Rule 21.01(3)(d) is whether on the face of the claim and circumstances it is plain and obvious that the case cannot succeed. [2] c) A pleading may be struck under Rule 25.11(a) on the ground that it may prejudice or delay the fair trial of an action. d) A pleading may be struck under Rule 21.01(3)(b) where the Plaintiff is without legal capacity to commence or continue the action.

[17] Counsel for the AG then went through the law regarding each of the tort claims that Mr. Eid has pled and argued why the tort claims could not succeed as pled. He then argued that as pleaded, the statement of claim fails to meet the minimum requirements as to the form of pleadings as set out under Rule 25 of the Rules of Civil Procedure.

[18] The standard required by the responding party, in this case Mr. Eid, to demonstrate a cause of action is very low.

[19] In assessing the cause of action, no evidence is admissible and the court accepts the pleaded allegations of fact as proven unless they are patently ridiculous or incapable of proof. [3]

[20] In responding to the AG’s motion to strike his statement of claim, Mr. Eid attempted to bolster his position by filing volumes of additional evidence purporting to prove his claim. In making his arguments in this motion, Mr. Eid also attempted to present this evidence and argue his case. Mr. Eid was informed that the court would not consider any of the additional evidence he filed with his response to the AG’s motion to strike. The court did accept his book of authorities and his written argument, without consideration of the additional evidence.

[21] Mr. Eid alleges in his statement of claim that he suffered damages as a result of the conduct of those he first named as defendants. As indicated above, he framed these allegations in negligence; negligent investigation; malicious prosecution; and intentional infliction of mental distress.

[22] For the reasons set out below, I grant the motion of the AG and order that the Statement of Claim in its entirety shall be struck without leave to amend.

Allegations of Negligence in the Statement of Claim

[23] Counsel for the AG submitted that the allegations of negligence in the statement of claim relate to three general categories, namely: a) ICI’s bankruptcy; b) Refusal of overnight shelter in the Canadian embassy building in Lebanon; and c) The handling of confidential documents in Lebanon.

[24] Counsel for the AG argued that none of these categories disclose a reasonable cause of action against the AG and they should all be struck.

ICI’s Bankruptcy

[25] Mr. Eid claimed that he suffered damages as a result of the negligent conduct of the various individuals and their ministries identified in paragraph 2 above. He alleged that it was as a result of this negligence that caused ICI’s bankruptcy after he departed Canada for Lebanon in December 2007. These allegations are found in the statement of claim at paragraphs 2.1.5 – 2.1.6 and 22.1.1.

[26] At pages 12 to 14 of the statement of claim (the paragraphs are not numbered) Mr. Eid claimed that it was Caisse Populaire, a creditor of ICI, backed by the RCMP, that fraudulently petitioned and bankrupted ICI on January 30, 3008, one month after he and his family left for Lebanon.

[27] Mr. Eid provided no particulars regarding the RCMP’s alleged role in the petition into bankruptcy of ICI by Caisse Populaire in January 2008, and Caisse Populaire is not a defendant in these proceedings.

[28] In paragraphs 8.1.4 and 8.1.6 of the statement of claim, Mr. Eid states that he sold ICI prior to leaving for Lebanon in December 2007.

[29] Counsel for the AG argued that on its face, the claims of negligence regarding the bankruptcy of ICI cannot possibly succeed because Mr. Eid admitted that he sold ICI prior to leaving for Lebanon and the statement of claim contains no material facts to suggest that he had any other beneficial interest in ICI.

[30] At paragraph 2.1.3 of the statement of claim, Mr. Eid stated that he was a paid Canadian Security Intelligence Service (“CSIS”) informant and that he created ICI at CSIS’ behest in order “to provide funds from (ICI’s) profits for CSIS’s operations overseas”.

[31] It was therefore the position of counsel for the AG that even if the allegations as pleaded are true, Mr. Eid could not have suffered any losses as a result of ICI’s bankruptcy because he no longer owned ICI nor had any interest in the company. The claim should also be struck pursuant to Rule 21.01(3)(b) because Mr. Eid has no legal capacity to bring an action for damages resulting from the loss of a company in which he had no beneficial interest. [4]

[32] Finally, counsel for the AG argued that because on a motion to strike, the facts as pleaded are to be taken as true, Mr. Eid could not have suffered a loss as a result of ICI’s bankruptcy because of his claim in paragraph 2.1.3 of the statement of claim that he was not the beneficiary of ICI’s profits.

[33] Mr. Eid argued that his claims regarding ICI should not be struck because he remained an owner of the company, notwithstanding the statements in the statement of claim that he was no longer the owner when he left for Lebanon in 2008 and that the company was created at CSIS’ behest in order “to provide funds from (ICI’s) profits for CSIS’s operations overseas”.

[34] With respect to Mr. Eid’s claims of negligence regarding the bankruptcy of ICI, I accept the submissions of counsel for the AG. Paragraphs 2.1.6 and 22.1.1 and the first unnumbered paragraph on page 5 and the first complete paragraph on page 12 of the statement of claim are struck out pursuant to Rule 21.01(1)(b) because they fail to disclose a reasonable cause of action and equally pursuant to Rule 21.01(3)(b) because Mr. Eid lacks the legal capacity to bring these claims on behalf of ICI.

Refusal of Overnight Shelter in the Canadian Embassy Building in Lebanon

[35] Counsel for the AG argued that Mr. Eid’s allegations with respect to damages suffered by his wife and children must be struck pursuant to Rule 21.01(3)(b) because he lacks legal capacity to bring claims on their behalf.

[36] At paragraphs 3.1.3 – 3.1.5 of the statement of claim, Mr. Eid claimed that the Canadian embassy in Beirut allowed his wife and children to take refuge within its fenced perimeter but refused them overnight access to the embassy building itself. At paragraphs 3.1.5, 4.1.1 and 5.1.3 of the statement of claim, Mr. Eid admitted that it was only his wife and children for whom he was seeking shelter within the embassy building; that he was not seeking shelter for himself.

[37] It was counsel for the AG’s position that even if the embassy staff’s refusal to allow Mr. Eid’s wife and children overnight shelter in the embassy building was negligent, any resulting damages were suffered by Mr. Eid’s wife and children and not by him. A plaintiff may not recover damages that he did not suffer.

[38] Mr. Eid argued that the conduct of the embassy staff was negligent and was instigated by the AG or those he originally named as defendants as set out in paragraph 2 above. It was his position that his family was put at risk and could have been harmed.

[39] I accept the argument of counsel for the AG. Mr. Eid lacks standing to commence a claim for damages on behalf of his wife or children, therefore those paragraphs that seek a remedy for damages allegedly suffered by Mr. Eid’s wife and children are struck. Those paragraphs are: a) the second and fourth unnumbered paragraphs on page 5 of the statement of claim; b) those portions of the third unnumbered paragraph on page 5 of the statement of claim that relate to damages suffered by Mr. Eid’s family members; c) those portions of the first and second unnumbered paragraph on page 6 of the statement of claim that relate to damages suffered by Mr. Eid’s family members; and d) the first complete unnumbered paragraph on page seven of the statement of claim.

Negligent Investigation / Handling of Confidential Documents

[40] Mr. Eid alleged that the RCMP’s handling of sensitive documents was negligent and put his safety and the safety of his family at risk. In pages 5, 6 and 7 of his statement of claim, Mr. Eid claims that he and his family endured pain and suffering for the past 8 years caused by the defendants he originally named as set out in paragraph 2 above; that he and his family were placed in imminent danger with a high possibility of loss of life; were treated unfairly and as enemies of Canada, and that members of the RCMP improperly disclosed classified information to Lebanon and Hezbollah.

[41] These allegations appear to stem from the investigation by the RCMP into various allegations of fraud by Mr. Eid. When the statement of claim and this motion to strike the statement of claim were filed, the criminal trial had not yet concluded. On May 2, 2016, Mr. Eid was convicted on all 10 counts of fraudulent activity. This information is not in the material before the court however, I have taken judicial notice of the fact of these convictions in assessing Mr. Eid’s claims in the statement of claim for both negligent investigation and malicious prosecution that I will address next. [5]

[42] The tort of negligent investigation requires Mr. Eid to establish that the AG owed him a duty of care and breached that duty in the course of the police investigation, resulting in damages. The Supreme Court of Canada in the 2007 case of Hill v. Hamilton-Wentworth Regional Police Services Board [6] described when a plaintiff may be awarded damages for a claim for negligent investigation as follows:

…recovery under the tort of negligent investigation should only be allowed for pains and penalties that are wrongfully imposed. The police must be allowed to investigate and apprehend suspects and should not be penalized for doing so under the tort of negligent investigation unless the treatment imposed on a suspect results from a negligent investigation and causes compensable damage that would not have occurred but for the police’s negligent conduct.

As discussed above, the loss or injury as a result of alleged police negligence is not established until it is clear that the suspect has been imprisoned as a result of a wrongful conviction or has suffered some other form of compensable harm as a result of negligent police conduct.

[43] In order to succeed on a claim for negligent investigation, Mr. Eid must be able to establish that the criminal proceedings on which the tort is based terminated in favour of the plaintiff. [7] Mr. Eid cannot satisfy this requirement in light of the guilty verdicts on all counts on which he was charged.

[44] Even if the RCMP’s handing of sensitive documents was negligent, Mr. Eid has not pleaded the material facts that are necessary to establish a causal link between the alleged negligence of the RCMP and the damages he claims he suffered. In his statement of claim and in his submissions on the hearing of the motion, Mr. Eid confirmed that the only damages he has suffered was being put at risk or in a situation of increased danger. He confirmed that neither he nor his family were actually harmed, but they could have been. There are no particulars in the pleadings that indicate he or his family was ever threatened, exposed to actual danger or otherwise harmed.

[45] Mr. Eid did claim that his health was affected due to the negligence he has alleged. He claimed that he suffered an increase in his symptoms of bipolar disorder. Notwithstanding this claim, there are no facts set out in his pleading that establish a causal link between the alleged negligence and changes in his bipolar symptoms. In the absence of such a pleading, there is no basis to suggest that changes in his bipolar disorder were caused by the alleged negligent conduct.

[46] I therefore find that the following paragraphs are struck from the statement of claim pursuant to Rule 21.01(1)(b) because they disclose no reasonable cause of action and pursuant to Rules 21.01(3)(d) and 25.11(c) because it is plain and obvious on the face of the pleading that these allegations cannot succeed: a) the first, second, third and fourth unnumbered paragraphs on page 5 of the statement of claim; b) both full paragraphs on page 6 of the statement of claim; c) both full paragraphs on page 7 of the statement of claim; d) the first full unnumbered paragraph on page 12 of the statement of claim; e) paragraphs 2.1.8; 3.1.1; 3.1.3; 3.1.4; 3.1.5; 4.1.1; 5.1.3; 6.1.3; 7.1.7; 8.1.1; 8.1.2; 8.1.4; 8.1.7; 8.1.9; 8.1.10; 10.1.1; 13.1.2; 13.1.3; and 13.1.4.

Malicious Prosecution

[47] Mr. Eid has alleged that in addition to the negligence he claims occurred as set out above, the RCMP and the other federal government departments conducted a malicious prosecution when they charged him with the 10 counts of fraudulent activity. He claimed that the conduct was in fact malicious persecution of him while he was in Lebanon between December 2007 and 2012, when he returned to Canada.

[48] Mr. Eid conceded that malicious prosecution and malicious persecution were the same tort in light of his claims regarding the police investigation and the handling of his information.

[49] To succeed in a claim of malicious prosecution, Mr. Eid must be able to demonstrate that the criminal proceedings against him were: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause to commence or continue the prosecution; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect. [8]

[50] Because Mr. Eid was convicted on all counts, his claim for malicious prosecution has no reasonable prospect of success and is struck pursuant to Rule 21.01(3)(d). It is also struck pursuant to Rule 25.11(c) because it is plain and obvious that this claim cannot succeed.

[51] The following portions of the statement of claim are struck as a result: the first full paragraph beginning on page 13 of the statement of claim, which continues to the top of page 15; and paragraph 8.1.3.

Intentional Infliction of Mental Distress

[52] Mr. Eid claims to be entitled to damages as a result of the mental anguish he suffered when his wife and children were denied entry to the Canadian embassy building in Lebanon. I have briefly discussed this issue under the sub-heading Refusal of Overnight Shelter in the Canadian Embassy Building in Lebanon where Mr. Eid claimed that members and departments of the federal government were negligent when they failed to permit his wife and children to stay in the Canadian Embassy in Beirut overnight.

[53] Mr. Eid confirmed on page 6 of his statement of claim that his wife and children were given shelter outside on the grounds of the embassy, within the fenced embassy compound. Mr. Eid did not plead that any harmful or dangerous events actually occurred and in his submissions confirmed that nothing untoward actually happened to his family. Mr. Eid submitted that the basis for this claim is that this was a traumatic experience for him and his family that caused him extreme mental suffering.

[54] Mr. Eid claimed that the conduct of the officials in the Canadian Embassy constituted “flagrant or outrageous conduct” when they refused to permit his wife and children to stay overnight inside the embassy. The officials inside the embassy permitted Mr. Eid and his family access to the fenced embassy compound where they were permitted to sleep.

[55] To succeed in a claim alleging intentional infliction of mental distress Mr. Eid must be able to prove three elements: a) There was flagrant or outrageous conduct; b) The conduct was calculated to produce harm; and, c) The harm resulted in a visible and provable illness. [9]

[56] An act is “calculated to produce harm” where it is clearly foreseeable that it would cause harm to the victim. The extent of the harm need not be anticipated, but the type of harm must have been intended or known to be substantially certain to follow. [10]

[57] Mr. Eid’s position in his claim and his submissions was that the night on the embassy grounds was traumatic for him and his family. As with the claim in negligence, Mr. Eid argued that something bad might have happened to his family, although in fact, nothing actually happened. Mr. Eid did not plead any particulars to support his position that his family should have been entitled to spend the night in the embassy.

[58] Even if Mr. Eid were able to convince a court that the conduct of the embassy staff in refusing to let his family sleep in the embassy itself for the night was outrageous conduct, Mr. Eid has not pled any facts to support the remaining two elements that the conduct was calculated to produce harm and that harm resulted in a visible and provable illness.

[59] Mr. Eid has alleged that his bi-polar condition was exacerbated by this night on the embassy grounds and he required additional medication in order to get it back under control, which the medication did. This is the extent of the harm he has alleged from the night spent on the embassy grounds. There was no lasting harm caused, and mere emotional upset, no matter how distressing, is not alone sufficient to found a cause of action. [11]

[60] As with the other claims in the statement of claim, Mr. Eid’s claim for intentional infliction of mental distress has no reasonable prospect of success and is struck pursuant to Rules 21.01(3)(d) and 25.11(c). This applies to the last full paragraph on page six of the statement of claim.

Failure to Meet the Minimum Requirements as to Form of Pleading – Rule 25

[61] Counsel for the AG argued that the remainder of the statement of claim cannot stand because the paragraphs offend the requirements set out in Rule 25 that govern the manner in which pleadings are to be structured.

[62] It was their position that the statement of claim, including portions of the claim that have already been struck for other reasons, repeatedly violate Rule 25.06, which requires that “every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.”

[63] Similarly, counsel for the AG argued that the statement of claim also repeatedly violates Rule 25.11(a) which states that the court may “strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document may prejudice or delay the fair trial of an action”.

[64] Finally, counsel for the AG argued that pages 5 through 15 of the statement of claim violate Rule 25.02 because the claims on those pages are not properly set out in “paragraphs numbered consecutively, and each allegation shall, so far as is practical, be contained in a separate paragraph”.

[65] It was counsel for the AG’s position that the combined effect of the violations of Rule 25 prevents the Defendant from complying with its obligation to admit or deny each paragraph in a claim in a clear and cohesive manner without having to carefully parse the claim to indicate which portions of a particular paragraph are being responded to. [12]

[66] Counsel for the AG also argued that the purpose of Rule 25.06 reinforces the goals of pleadings, which are intended to: a) define the questions in issue between the parties; b) give other parties fair notice of the case they have to meet and the remedies sought; and c) assist the court in its investigation. [13]

[67] While the style of the pleading is irrelevant, motions to strike should succeed where the rules of pleading are offended. [14]

[68] Mr. Eid argued that he should be given some leeway because he is representing himself and is not knowledgeable about the proper construction of a statement of claim.

[69] I have carefully reviewed the paragraphs that counsel for the AG submits violate the proper form of pleading under Rule 25. In considering these paragraphs, I note that many of these paragraphs do not fall under any type of actionable tort. If they are actionable, the paragraphs contain no information or particulars about the harm caused to Mr. Eid as a result of these allegations.

[70] Without addressing each of the offending paragraphs in detail, they can be summarized as containing irrelevant allegations without any material facts to support them or any indication of their relevance to the causes of action pleaded. Examples of these irrelevant pleadings are: a) Mr. Eid has set out 26 examples of incidents that purport to demonstrate controversies and scandals involving the RCMP that have nothing to do with Mr. Eid (see paragraph 3.1.2 of the statement of claim); b) Mr. Eid made reference to statements made by individuals whom he names but does not identify with respect to the roles they are alleged to have played in the allegations as pleaded. He also alleged a biased investigation report, yet there are no facts pleaded to explain the nature of this investigation and report or its role in the claims Mr. Eid has made (see paragraphs 3.1.2, 5.1.2 – 5.1.3, 7.1.1 – 7.1.2 and 7.1.7 of the statement of claim); and c) Mr. Eid has made serious allegations of misconduct against certain RCMP officers without pleading any material facts to support these allegations or how this conduct supports his claims. (see paragraphs 9.1.1 – 9.1.4 and 13.1.1 of the statement of claim).

[71] At best, the remaining paragraphs in the statement of claim contain irrelevant evidence, without setting out a cause of action against the Defendant. These paragraphs are not amenable to amendment and are not paragraphs to which the AG should be required to respond. I find that the remaining paragraphs in the statement of claim are struck.

Conclusion

[72] The motion of the AG is granted and the statement of claim is struck without leave to amend. Mr. Eid’s action is therefore dismissed.

[73] The parties may make written submissions on costs beginning with the submissions of the AG within 20 days of the release of these reasons followed by Mr. Eid’s submissions within a further 20 days. Submissions shall not exceed 4 pages together with the usual Bills of Costs.

Madam Justice B. R. Warkentin

Released: June 1, 2016