CITATION: Almalki v. Canada (A.G.), 2017 ONSC 3750

COURT FILE NO.: 10-49681

DATE: 2017/06/15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SAFA ALMALKI, NAZIH ALMALKI, YOUSSEF ALMALKI and BASSAM KANDAR

Plaintiffs (Responding Parties)

– and –

ATTORNEY GENERAL OF CANADA

Defendant (Responding Party)

Counsel:

Paul Champ, counsel for the Plaintiffs

Elizabeth Richards and Craig Collins-Williams, counsel for the Defendant

HEARD AT OTTAWA: February 7, 2017

REASONS FOR Decision

R. Smith J.

[1] The Attorney General of Canada (the “Attorney General”) has brought a motion for summary judgment seeking a dismissal of the Plaintiffs’ claims on the basis that the two year limitation period had expired before the claim was commenced.

[2] The Attorney General submits that the Plaintiffs discovered or with reasonable diligence, ought to have discovered the material facts which gave rise to their claim for negligence, negligent investigation and defamation, at the latest, when Justice O’Connor released the Addendum to his report on the Maher Arar Inquiry on August 12, 2007. The Plaintiffs’ claim was issued on October 20, 2010, more than two years after that date.

[3] The Plaintiffs submit that they did not know and could not have known by exercising reasonable diligence that the RCMP had branded them as extremists and terrorist suspects and had shared this information with the United States. The Plaintiffs submit that suspicion is not enough and they only became aware of sufficient material facts to support their claim, when the Iacobucci Inquiry Report was released on October 21, 2008.

[4] The Defendant argues that in the factual circumstances, the Plaintiffs ought to have conducted a diligent investigation to discover the material facts forming the basis of their claim before the Iacobucci Report was released. The Plaintiffs submit that before the Iacobucci Report was released, all they had was a suspicion that information about their association with Abdullah Almalki had been given to the United States by the RCMP, but they did not and could not have discovered that the RCMP had advised the United States that they were suspected terrorists.

[5] In the alternative, the Attorney General seeks an order striking the Plaintiffs’ claim for a breach of their mobility rights under section 6 of the Canadian Charter of Rights and Freedoms. They claim that their mobility rights have been breached as they are restricted from leaving Canada, as they are prevented from leaving Canada by car or by air through the United States as a result of the Canadian security officials advising the United States that they were extremists and terrorist suspects. As a result, they submit that Canada’s actions have restricted their mobility rights by preventing them from ever leaving Canada through the United States.

[6] The Attorney General submits that the limitation period began to run for the claim for a breach of their section 6 Charter rights when Safa and Youssef Almalki were denied entry into the United States, and for Bassam Kandar at the latest 6 years from July of 2002.

[7] The following issues must be decided:

(a) Is there a genuine issue requiring a trial to determine whether the limitation period expired before the action was commenced?

(b) Should the Plaintiffs’ claim be dismissed because the limitation period has expired?

(c) Should the Plaintiffs’ claim for an alleged breach of their section 6 Charter rights to travel to the United States be dismissed, as disclosing no reasonable cause of action?

Factual Background

[8] The facts are largely uncontested and as a result, I will refer to the facts as summarized in the parties’ factums:

[9] Abdullah Almalki (“Abdullah”), is the brother of the Plaintiffs Safa Almalki (“Safa”), Nazih Almalki (“Nazih”) and Youssef Almalki (“Youssef”), and was the employer of Bassam Kandar (“Bassam”). Abdullah was the primary target of an investigation by the RCMP in 2001. This anti- terrorism investigation also involved Mr. Maher Arar.

Detention of Abdullah in Syria

[10] In May 2002, Abdullah Almalki was detained in Syria while visiting his family. According to the Iacobucci Report, Abdullah was held in degrading and inhumane conditions and was tortured by the Syrians during interrogations. Commissioner Iacobucci concluded that the RCMP shared information about Abdullah with foreign states and sent questions to the Syrians to ask him, and these actions resulted in his torture and mistreatment. After 22 months of detention, Abdullah was released and returned to Canada in August 2004.

[11] During Abdullah’s ordeal, Maher Arar was detained in the same Syrian prison and, according to the O’Connor Inquiry Report, was also tortured. Mr. Arar encountered Abdullah and learned what he had suffered. When Arar returned to Canada in October 2003, he told Canadians in a news conference that Abdullah was still in a Syrian prison and had also been tortured.

[12] Commencing in November 2003, the Almalki family began speaking to the press about the detention of Abdullah in Syria. Youssef was frequently interviewed and gave statements regarding his brother’s treatment. At that time, Youssef believed there was a connection between his brother's case and Maher Arar.

[13] The Plaintiffs commenced their action on October 20, 2010, alleging negligence, negligent investigation, defamation and breaches of the Charter, all arising from an anti- terrorism investigation in 2001 known as Project A-O Canada. The allegations in the claim are about the RCMP sharing information from the investigation with the United States between 2001 and 2004, six (6) years before the claim was commenced.

[14] Bassam was employed by Abdullah between 1999 and 2002 when he provided services for Wireless Mobility, DSPOne Systems Inc, TS Link TK International Corp. and Dawn Services, all companies owned by Abdullah. Bassam operated a number of these companies for a period of time while Abdullah was out of the country.

[15] Nazih founded DSPOne Systems Inc., one of companies targeted in the investigation, in 1998. Between 1999 and 2001 he and Adbullah shared office space for DSPOne, Dawn Services and Wireless Mobility. Safa, the older brother of Abdullah Almalki, established Dawn Services Corporation in 1994, another company targeted in the investigation. Youssef, the youngest brother of Abdullah Almalki, occasionally worked for Dawn Services, DSPOne and TSLink between 1996 and 2000.

[16] In late November 2001, Abdullah travelled to Malaysia with his wife and children. He told the Plaintiffs that the family wanted to visit his mother in law who lived in Malaysia and was very sick. Bassam helped to run Abdullah’s companies in his absence.

January 22, 2002 Searches

[17] On January 22, 2002 the RCMP executed early morning search warrants on the homes of Nazih and Bassam as well as Abdullah’s parents. At the same time, RCMP officers visited the homes of Safa and Youssef and requested interviews. Youssef was attending medical school in London, Ontario, while all the other Plaintiffs were residing in Ottawa. The Plaintiffs were told by the RCMP that Abdullah was suspected of selling electric components and other goods to terrorists in Pakistan. In the course of those searches, various items were seized from all premises including documents, computer hard drives, CDs and VHS tapes.

[18] Nazih was home at the time the search warrants were executed and was provided a copy of the warrant. He was informed that the RCMP were investigating his brother Abdullah and one of the companies, DSPOne, which they believed was owned by Abdullah. Nazih was also aware that they were searching other residences that day, including his parents' home. The search warrant for Nazih disclosed that the RCMP were searching his personal residence and vehicles for information about him personally, including banking information and information about his company DSPOne. The search warrant disclosed the offences being investigated, that they involved activities of an international nature, and the police explained that they were part of an anti-terrorism investigation.

[19] The RCMP seized a number of items during the search of Nazih's home, including personal information, such as personal notebooks and audio tapes, copies of passports and banking information. Furthermore, during the search the RCMP presented a one inch thick file to Nazih which they opened revealing his picture. Nazih believed that they did this to give the impression that they had lots of information about him. Following the search the RCMP made several requests to interview Nazih but an interview never took place.

[20] Bassam was also home on January 22, 2012 when the search occurred. He was shown a copy of the search warrant and interviewed by members of the RCMP. At that point in time, Bassam believed that he was implicated in the investigation by virtue of his employment with Abdullah and he understood that the RCMP were investigating Abdullah's possible involvement in terrorist activities. The search warrant confirmed that the RCMP were searching his home and personal vehicles and were searching for information related to him personally, including letters, notes, diaries, rental agreements, banking information and information related to Osama bin Laden and Al-Qaeda terrorist networks.

[21] During the search, Bassam was interviewed and the police officers confirmed that he had been the subject of surveillance. They asked him a number of questions about Abdullah, and about his personal and business activities. After the search Bassam understood that a significant amount of personal information, not related to his employment with Abdullah, was seized by the RCMP.

[22] On January 22, 2002, the RCMP also went to the home of Safa and asked him to participate in an interview. They told him that they were conducting a terrorism investigation which involved Abdullah. He agreed and accompanied the RCMP to the “A” Division Headquarters for the interview. The interview was recorded and a transcript prepared. During this interview he was told that the RCMP were executing search warrants in a number of locations, including his parents’ home, and that they were trying to find out who in Ottawa may have inclinations to be involved in terrorist activities.

[23] During the interview the RCMP asked Safa what he knew about Abdullah’s businesses and travel and then told Safa they suspected that Abdullah was connected to a terrorist organization. Safa told the RCMP he didn’t know much about his brother’s businesses, but he didn’t believe this was true. Safa stated later that if there was hard evidence of his brother’s involvement in terrorism then he should be brought to justice. Safa was also asked several questions about Maher Arar. He wasn’t asked any questions about Nazih, Bassam or Youssef and the RCMP made it clear he was not under investigation.

[24] Youssef was a second year medical student when the RCMP knocked on his door early in the morning of January 22, 2002. He agreed to speak to the RCMP later that day, provided he could be accompanied by a lawyer. The interview proceeded that evening at the RCMP detachment. It was made clear that Youssef was not a suspect but he was asked several questions about Abdullah’s businesses and travels, and his opinions on the 9/11 attacks. The RCMP investigators’ commented in their report that Youssef was “very forthright and accommodating” and offered to make himself available for further questions.

[25] Nazih’s and Bassam’s encounters with the RCMP were more unpleasant as their homes were also searched. RCMP told Nazih they were investigating his brother Abdullah and that he might be a witness. The RCMP believed DSPOne was owned by Abdullah, but Nazih explained this was a mistake as he owned the company. The investigating officers told Nazih that they were only searching his house because they believed Abdullah owned DSPOne. Nazih’s house was once owned by his parents and Abdullah previously used this home as an address for his companies.

[26] Nazih and Bassam retained legal counsel following the execution of the search warrants in January of 2002. Following the search the Crown sought and received various judicial authorizations for the continued detention of the items seized pursuant to s. 490(3)(a) of the Criminal Code. Bassam and Nazih were provided with a list of the items seized through their counsel. They consented to all but one of the detention orders sought and did not commence any judicial proceedings to challenge the validity of the search warrants in the criminal process. Bassam relied on his counsel to deal with those proceedings and understood that they were proceedings related directly to him and the property seized from his home. During the course of the on-going proceedings, Bassam understood that he may have been a criminal suspect in the investigation.

[27] While not the subject of the on-going proceedings, both Youssef and Safa also appeared at court proceedings involving the continued detention of the goods seized from Nazih and Bassam’s homes. On June 16, 2003, Safa made representations to the Court about the impact the investigation was having on his career because he could not travel to the United States.

[28] Requests for the return of most of the seized items were agreed to and facilitated by the RCMP in February of 2002. All remaining items seized were returned to Nazih and Bassam through their counsel on or before October 1, 2003.

Arar Inquiry

[29] Justice O’Connor was appointed in February 2004 to lead a commission of inquiry into “the actions of Canadian officials in relation to Maher Arar”. Abdullah was still imprisoned in Syria, but his family sought standing in the inquiry on his behalf. It was their view that the cases were closely “intertwined” because both men were being investigated by the RCMP when they were detained and tortured in Syria and that participation might help Abdullah’s precarious situation in Syria. Justice O’Connor ruled that Abdullah did not have “a substantial and direct interest” in the inquiry and denied standing, but ruled that if evidence was called referring to Abdullah, he would be entitled to have counsel.

[30] Between May 11, 2005, and August 31, 2005 Justice O’Connor held further public hearings. Abdullah participated in the inquiry and prepared a chronology to assist the commission sometime in 2004 to early 2005. Nazih assisted in preparing that chronology and was aware of its contents at that time.

[31] On March 7, 2006, Abdullah Almalki, his wife, children and parents commenced an action against the Attorney General of Canada alleging negligence in the conduct of the Project A-O investigation.

[32] On September 18, 2006, Justice O’Connor released his public report in relation to the Arar Inquiry (Arar Report) with a number of redacted portions. In his report, Justice O’Connor made findings related to the investigation of Abdullah Almalki including the following findings:

(i) In early October 2001 RCMP “A” division created Project A-O Canada whose role evolved into investigations focussed on Abdullah Almalki and others who might be involved in criminal activities. Project A-O Canada shared a great deal of information with American agencies. The team dealt with the FBI directly and in many instances shared information at meetings;

(ii) On October 11, 2001, Project A-O Canada identified a number of individuals connected with Abdullah Almalki as targets of its investigations;

(iii) In October 2001, the RCMP requested that Canada Customs and the United States place a “Lookout” for named individuals;

(iv) The aim of a Lookout is to ensure that the target undergoes both a primary and a secondary examination when crossing the border into Canada;

(v) The RCMP put all target names, addresses and vehicle information on the United States Customs Text System;

(vi) In January 2002, the RCMP decided to conduct searches to determine whether the original threats were grounded and whether anyone was left who might be considered a threat;

(vii) On January 21, 2002, seven search warrants and a sealing order were issued;

(viii) On January 22, 2002, the RCMP executed seven search warrants conducting simultaneous searches in all of the locations identified;

(ix) On January 29, 2002, Inspector Cabana authorized the sharing of all seized data and the sum of the investigations with CSIS and the RCMP's American counterparts;

(x) The fruits of the searches, including the hard drives, were turned over to United States agencies on or around February 22, 2002; and

(xi) On May 31, 2002 Project A-O Canada made a major presentation in Washington, the purpose of which was to persuade the American authorities to initiate a criminal investigation of Mr. Almalki and his associates. At that time the RCMP had identified Nazih as an individual who might be part of an investigative hearing in regards to the investigation.

[33] The Arar Report discussed the October 2001 Lookouts in considerable detail. The report detailed the fact that the request stated that the targets of the Lookout were "Islamic Extremists individuals suspected of being linked to the al-Qaeda terrorist movement". Justice O'Connor revealed that Mr. Arar and his wife were listed in the Lookout request and that the names of individuals who surfaced in Canadian criminal investigations were routinely included in TECS Lookouts. Justice O'Connor was very critical of the nature of the request in this case, and in particular in the description of those in it as Islamic extremists.

[34] The O’Connor Inquiry also stated that search warrants were executed by the RCMP on January 22, 2002 and that following Abdullah’s departure, the RCMP decided to conduct searches to determine “whether the original threats were founded, and whether anyone was left who might be considered a threat.” The RCMP conducted simultaneous searches in Ottawa, Toronto and other Canadian cities, “interviewing a number of people as well.” The search of Nazih’s home, Abdullah’s brother was mentioned.

[35] Nearly a year after Justice O’Connor released his report, the Federal Court ordered that additional information from his report – previously withheld by the Attorney General – should be disclosed. An “Addendum” to the O’Connor Inquiry was published in August 2007 that included the following passage regarding the execution of the January 22nd search warrants:

When applying for the search warrants, Project A-O Canada provided the name of the country from which the information relied upon had been received. However, it did not mention that country’s poor human rights record or the fact that the information might be the product of torture.

Plaintiffs’ Awareness of the Details of the O’Connor (Arar) Report

[36] Safa stated that he understood that the O’Connor Inquiry discussed the RCMP investigation of his brother Abdullah. He searched the report for references to his name and he was interested in it for the implications for his brother. However, he didn’t see the report as being about himself, as he was just a witness who was interviewed by the RCMP at one point.

[37] Youssef gave evidence that the family was interested in the O’Connor Inquiry because he thought there could be evidence related to his brother, as Mr. Arar had seen Abdullah in the Syrian prison. He initially followed the developments in the inquiry, though not as much after his brother returned to Canada. Youssef also recognized that some information about the RCMP investigation of his brother might come out through the O’Connor Inquiry. When it was released, he skimmed it and searched for his name, but he was not mentioned.

[38] Nazih gave evidence that he understood the O’Connor Inquiry’s mandate was to investigate Mr. Arar’s situation, but that there may be issues related to his brother Abdullah. However, he did not read the final report when it was published in September 2006. He did an electronic search for his name and noted that there parts about his brother. He understood there were references to searches of residences but he didn’t necessarily draw the connection to himself. Nazih says he “vaguely” recalled the O’Connor Inquiry Addendum being released. When certain Addendum passages were put to him, Nazih agreed that there was a possibility the search warrant for his home had been obtained using information derived from torture.

[39] Bassam gave evidence that he did not read the O’Connor Inquiry report. It was his understanding that mandate related to Mr. Arar, and not to Abdullah. He was also unaware that Abdullah participated in the O’Connor Inquiry. Also, he did not know that Mr. Arar was investigated because of his acquaintance with Abdullah. Bassam stated that he understood that the cases were similar in that both men were detained and tortured in Syria, but he was completely unaware that the O’Connor Inquiry had a section on Abdullah. Bassam stated in cross-examination that, “I didn’t know Maher, I wasn’t really associated with him so I had no reason nor was I compelled to read it.” Up until the time of the examination, Bassam testified he was completely unaware of the Addendum to the O’Connor Inquiry.

[40] The Arar Commission and its report was the subject of considerable media attention. For example, in August 2007, the CTV reported that the newly released addendum revealed that the RCMP had relied on a purported confession from Mr. Elmaati who later claimed that the confession was obtained under torture. In that report counsel for Mr. Arar is quoted as saying:

But the information the RCMP used to obtain a warrant…Was either entirely unevaluated or indeed was information that came directly from torture. And the RCMP in characterizing that information and putting it before a judge had really mischaracterized the strength of their case, mischaracterized the kind of inferences that were available.

Efforts to Enter the United States

[41] On March 8, 2002, Safa was denied boarding on a flight from Ottawa to Texas for a business trip. United States Customs in the Ottawa airport turned him away after scanning his passport. As he was leaving, he spoke to two plain-clothed RCMP officers who suggested to him that, as a person of Middle-Eastern origin, he should refrain from travelling to the United States until “things settle down”.

[42] Youssef was completing his residency as a radiologist in 2007 when he registered for a four-week radiology course in Washington, D.C. All radiology residents in North America are expected to take this course. While attempting to get his boarding pass for his flight from Toronto to Washington, a United States Customs officer took him aside and asked him questions about who he knew in the United States and the names of family members in the United States and Canada. He was refused entry to the United States and was provided with no reasons.

[43] Nazih has not attempted any travel to the United States since August 2001. Following the events of 9/11, he has been apprehensive about travelling to the United States as a Muslim. Many of his Muslim Canadian friends and family members have had very negative experiences travelling across the United States border. This included his brothers Safa and Youssef. For this reason, he has not attempted any trips to the United States.

[44] Bassam was also apprehensive about travelling to the United States as a Muslim since 9/11. Many of his Muslim Canada friends have had very negative experiences at the United States border. In July 2010, Bassam attempted a trip to the United States, driving with his wife and children for some shopping. When his passport was scanned, sirens went off and his vehicle was surrounded by United States Customs agents. He was handcuffed in front of his family and other travelers and he was taken to a cell. He was questioned, photographed and printed. After several hours, he was denied entry and returned to Canada.

The Iacobucci Inquiry Report

[45] In December 2006, former Supreme Court of Canada Justice Frank Iacobucci was appointed to conduct a commission of inquiry into the actions of Canadian officials in relation to Abdullah, Ahmad Elmaati and Muayyed Nureddin. All three men were Canadians who were investigated by the RCMP and CSIS and were subsequently detained and tortured in Syria. The inquiry was to be conducted in private, with no public evidence or information, due to the national security issues involved.

[46] The final Iacobucci Inquiry Report was delivered on October 21, 2008. With respect to Abdullah, the Iacobucci Inquiry found that the RCMP described him to Syrian officials as an “imminent threat” to the safety in Canada. According to Iacobucci, these words were “inflammatory, inaccurate and lacking investigative foundation.” As well, the Iacobucci Inquiry reported that on October 31, 2007, the RCMP requested that the United States authorities place a lookout on Abdullah “and his family members”, describing them as “Islamic extremist individuals suspected of being linked to the Al-Qaeda terrorist movement.”

[47] The Iacobucci Inquiry also reported on the torture suffered by Ahmad Elmaati. He was punched and kicked by his Syrian interrogators and later forced to lay on his stomach with his knees bent and his hands and feet bound together. While in this position, interrogators poured cold ice water over his body and whipped his feet, legs and back with a black electrical cable about an inch thick. Elmaati was repeatedly questioned about his activities in Canada but his answers were unsatisfactory to his interrogators and this torture continued over a few sessions. His interrogators suggested he wanted to bomb the United States embassy in Ottawa. Fearful of the United States, Elmaati falsely confessed instead to plotting to bomb the Parliament Buildings as the biggest target he could think of. This confession was accepted, written down and signed.

[48] Mr Elmaati’s confession under torture was communicated to Canadian authorities by the Syrians. The RCMP subsequently relied on this information to obtain the search warrants executed on January 22, 2002. Although the Iacobucci Inquiry does not state it explicitly, it is presumed these warrants include the searches of the homes of Nazih and Bassam.

[49] On October 20, 2010, the Plaintiffs launched their claim against the Defendant, alleging negligence, negligent investigation, defamation and breaches of the Canadian Charter of Rights and Freedoms. The Plaintiffs plead that the RCMP described them as suspected terrorists to United States authorities, and this was false, defamatory and negligent. The Plaintiffs plead that this false and inflammatory labelling resulted in them being barred from entering the United States and caused them embarrassment, humiliation, and damage to their professional reputations and careers. The Plaintiffs also contend the RCMP’s actions constitute a violation of their mobility rights under section 6 of the Charter.

Issue #1

Is there a genuine issue requiring a trial to determine whether the limitation period expired before the action was commenced?

[50] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court held that summary judgment motions must be granted whenever there is no genuine issue requiring a trial. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits of the motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[51] At paragraph 16 of Hyrniak, the Supreme Court stated:

The Court of Appeal set out a threshold test for when a motion judge could employ the new evidentiary powers available under Rule 20.04(2.1) to grant summary judgment under Rule 20.04(2)(a). Under this test, the "interest of justice" requires that the new powers be exercised only at trial, unless a motion judge can achieve the "full appreciation" of the evidence and issues required to make dispositive findings on a motion for summary judgment. The motion judge should assess whether the benefits of the trial process, including the opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand, are necessary to fully appreciate the evidence in the case.

[52] While the moving party bears the onus of establishing that there is no genuine issue for trial, the responding party may not rely on mere allegations or denials, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. In this case, to avoid summary judgment the Plaintiffs bear the onus of satisfying the Court there are material facts to be tried as to when they discovered the cause of action. Courts have held that the party resisting the motion must “lead trump or risk losing”.

Disposition of Issue #1

[53] I am satisfied that there is no genuine issue requiring a trial as the facts are largely uncontested and I agree with the Attorney General that a genuine issue requiring a trial has not been raised. A fair and just determination of the issue may be made without a trial as the main facts were not disputed and a decision must be made on whether the Plaintiffs ought to have discovered the material facts giving rise to their cause of action by exercising reasonable diligence.

Issue #2

Should the Plaintiffs’ claim be dismissed because the limitation period has expired?

[54] In Lawless v. Anderson, 2011 ONCA 102 at paragraph 22, the Court of Appeal stated that a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by a Plaintiff exercising reasonable diligence.

[55] Section 5 of the Limitations Act, 2002, S.O. 2002, c. 24 states as follows:

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred;

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

the day on which a reasonable person with the abilities and in the

circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[56] The Plaintiffs substantially agree with the authorities and discoverability principles relied upon by the Defendant. The Plaintiff submits that the relevant principles are as follows:

(a) A cause of action arises when it is discovered by the plaintiff;

(b) There is a rebuttable presumption that a claim is discovered on the day the act or omission took place. When a limitation period is raised, the onus is on the plaintiff to rebut this presumption;

(c) Discoverability is an objective test, not a subjective one. The test is when, on an objective basis, the material facts necessary to commence the action were reasonably discoverable;

(d) Suspicion is not enough to trigger the running of a limitation period. A plaintiff can be said to have known of the claim only when he or she has some support for the suspicion;

(e) The factors in s. 5(1)(a) of the Limitations Act, 2002 are conjunctive, and the limitation period does not begin to run until the plaintiff is actually aware of all those enumerated matters, or until a reasonable person, with the abilities and circumstances of the plaintiff, first ought to have known of all those matters;

(f) A plaintiff must exercise reasonable diligence in investigating the relevant facts. While some steps to investigate must be taken, the nature and extent of the required action will depend on all of the circumstances of the case; and

(g) Determining whether a plaintiff has discovered a claim is primarily a fact-based analysis.

[57] As a result, the onus is on the Plaintiffs to show that they did not discover the material facts on which their claim is based until after Iacobucci J. released his report on October 21, 2008 in relation to Abdullah, Elmaati and Nureddin. In his report, Justice Iacobucci stated that on October 31, 2001, the RCMP requested the United States authorities to place a “lookout” on Abdullah “and his family members”, and described them as “Islamic extremist individuals suspected of being involved in the Al-Qaeda terrorist movement.”

[58] The material fact that the Plaintiffs had to discover, was that the RCMP had secretly advised the United States authorities to put the Plaintiffs on a “lookout” list that described them as “Islamic extremist individuals suspected of being linked to the Al-Qaeda terrorist movement.”

[59] The Plaintiffs were never advised by the RCMP or anyone else, that the RCMP had asked the United States to secretly put the Plaintiffs on a list that described them as Islamist extremists suspected to be linked to Al-Qaeda terrorism.

[60] When the Iacobucci report was released, the Plaintiffs’ legal counsel wrote to the Public Safety Minister, then Peter Van Sloan, and asked him to identify the ‘family members’ referred to in the report. No response was ever provided by the Minister.

[61] The Defendant acknowledged in its Statement of Defence that “the rule is that information shared, and its source, will be held in confidence and will not be disseminated to others without the consent of the agency publishing it.”

[62] In the Arar report, Commissioner O’Connor noted the unusual situation of a security suspect and stated in paragraph 500 of his report as follows:

The lack of transparency in national security investigations means that those affected will often not know that an investigation is taking place or has been completed. Even if they do learn of the investigation, they will seldom be aware of the specific investigative steps that may have an impact on their interests.

[63] The Attorney General argues that a reasonable person with the same abilities and circumstances of the Plaintiffs ought to have known, and that they failed to exercise reasonable diligence to investigate and discover the material fact that the RCMP had advised the United States to put them on a “lookout” list, which described them as suspected terrorists for the following reasons:

a) Abdullah was Investigated as a Suspected Terrorist

a) Abdullah was investigated by CSIS and the RCMP in the late 1990’s and early 2000’s and became a target of an investigation when he was suspected of having links to Islamic extremists. In January of 2002, the Plaintiffs were told by the RCMP that Abdullah was suspected of selling electrical components in Pakistan. I do not find that this information is sufficient to allow the Plaintiffs to discover or based on this information that they ought to have discovered that they were put on a list described as suspected terrorists just because Abdullah, a brother of three of the Plaintiffs, had him investigated.

b) RCMP Carried Out Search Warrants and Interviewed Plaintiffs

b) On January 22, 2002 the RCMP carried out search warrants of Abdullah’s home, Nazih’s home and business, and at Bassam’s home and his companies. Bassam had worked for Abdullah for several years.

c) In January 2002, the Plaintiffs were contacted and three were interviewed by the RCMP when the search warrants were executed. Youssef was contacted by the RCMP but an interview was never arranged.

[64] When interviewed, Safa was told that Abdullah was the target of the RCMP investigation, and that he was not under investigation. Youssef was in second year medical school on January 22, 2002 and he agreed to be interviewed accompanied by a lawyer. It was made clear to him that he was not a suspect. Bassam and Nazih’s homes were searched. Nazih was told that the RCMP were only searching his home because they believed that Abdullah owned DSPOne. Nazih’s house was once owned by his parents and Abdullah had previously used this home as an address for his companies.

[65] Bassam’s home was also searched and he was mostly questioned directly or indirectly about Abdullah. Bassam was an employee of one of Abdullah’s companies.

[66] I find that the searching of the two of the Plaintiffs’ homes and questioning the two others, where Youssef and Safa were told that they were not suspects, is not sufficient knowledge of the material fact that the RCMP had secretly advised the United States to put the Plaintiffs on a list describing them as suspected Islamist terrorists.

c) Abdullah Detained in Syria

[67] The fact that Abdullah was detained in Syria in May 2002 after the searches had been conducted and the Plaintiffs had been advised that the RCMP suspected Abdullah of selling electronics to terrorists in Pakistan, did not give them any knowledge that the RCMP had secretly advised the United States to put them on a list describing them as suspected Islamist terrorists.

d) United States Border Difficulties

[68] In March of 2002, Safa was denied entry into the United States and in July of 2007 Youssef was also denied entry into the United States. In January of 2002 Bassam and Nazih stopped visiting the United States because they were fearful of crossing the border. In all of the circumstances with the search of two of the Plaintiffs’ residences, their knowledge that the RCMP suspected Abdullah was assisting terrorists, their interviews by the RCMP and Abdullah being detained in Syria, it was reasonable to suspect that Abdullah family members and Bassam’s employment relationship with him had affected their ability to travel into the United States.

[69] However, the Plaintiffs’ suspicion is different from knowing that the criteria listed in section 5(1)(a) of the Limitations Act were met, including: that an injury had occurred to them, and that the injury was caused by an act or omission, in this case, that the RCMP had secretly advised the United States to put the Plaintiffs’ names on a “lookout” list and described them as Islamist terrorists.

e) O’Connor (Arar) Inquiry Report

[70] The Attorney General argues that upon the release of the O’Connor or Arar report, the Plaintiffs would have or ought to have discovered that the RCMP had advised the United States authorities in 2001 to put them on a list describing them as suspected Islamist terrorists.

[71] I do not find that the O’Connor report on its own or in addition to the other circumstances described above was such that the Plaintiff discovered or ought to have discovered the material acts of the RCMP, advising the United States to put them on a “lookout” list describing them as suspected terrorists for the following reasons:

a) The report was 1300 pages long and was related to Maher Arar and not to Abdullah and his family members;

b) The Plaintiffs stated that Bassam did not read the report because it related to Arar and not to Abdullah, Youssef and Safa reviewed the O’Connor report but did not see their names mentioned and were only interested in any implications to their brother Abdullah;

c) Nazih also reviewed the Arar report but understood the mandate was related to Mr. Arar; he did not see his name mentioned and did not draw a connection to himself and the searches;

d) The report was not primarily concerned with Abdullah but rather with Mr. Arar, and was lengthy and did not mention the Plaintiffs’ names; and

e) The O’Connor report did not state that the RCMP had secretly advised the United States to put the Plaintiffs on a list that described them as suspected Islamist terrorists.

[72] I find that it was only when the Iaocobucci report was released on October 31, 2007 concerning Abdullah and the two other individuals, which stated that the RCMP requested that United States authorities place a lookout on Abdullah “and his family members”, describing them as “Islamist extremist individuals suspected of being linked to the Al-Qaeda terrorist movement, that the Plaintiffs discovered sufficient material facts, that they knew or ought to have known about their cause of action against the Attorney General.

Disposition of Issue #2

[73] The Defendant’s motion to dismiss the Plaintiffs’ claim based on the expiry of the limitation period is dismissed for the reasons set out above.

Disposition of Issue #3

Should the Plaintiffs’ claim for a breach of their section 6 Charter mobility rights be struck as disclosing no reasonable cause of action?

[74] The Defendant brings this motion under Rule 21 of the Rules of Civil Procedure, and submits that the Plaintiffs’ claim for breach of their section 6 mobility rights under the Charter cannot possibly succeed and has no reasonable chance of success, because section 6 of the Charter only guarantees the rights of a Canadian citizen to enter or leave Canada and does not guarantee a Canadian the right to enter any other country including the United States.

[75] The Defendant submits that section 6 Charter rights do not include a right to travel to the United States, as this would violate the sovereignty of the United States.

[76] The Plaintiffs argue that they have raised a novel legal issue, that should not be struck out on a Rule 21 motion without hearing the evidence at a trial as the actions of the RCMP have restricted their ability to leave Canada, by preventing them from ever leaving through the United States by car or by air.

[77] Subsections 6(1), (2) and (3) of the Charter read as follows:

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

Rights to move and gain livelihood

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right to move to and take up residence in any province; and to pursue the gaining of a livelihood in any province.

Limitation

(3) The rights specified in subsection (2) are subject to any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

[78] A pleading will be struck pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure where it discloses no reasonable cause of action. The test set out by the Supreme Court in Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, is whether it is plain and obvious on the facts as pleaded that the action cannot succeed. The purpose of a Rule 21.01(1)(b) motion is to test whether the Plaintiffs’ allegations disclose a legally sufficient or substantively adequate claim. A Statement of Claim is insufficient when its allegations either do not give rise to a recognized cause of action, or when it fails to contain the necessary legal elements of an otherwise recognized cause of action.

[79] Subsection 6(1) of the Charter enshrines every Canadian citizen’s “right to enter, remain in and leave Canada”. It does not guarantee the right to enter the United States of America, a sovereign nation or any other independent state. In Divito v. Canada, 2013 SCC 47, the Supreme Court of Canada described the content of section 6 Charter mobility rights, as being founded in human rights violations following WWII and constituting a fundamental right associated with, Canadian citizenship. Put another way, no citizen should be denied the ability to leave their country of citizenship or to enter it.

[80] Moreover, the Supreme Court has confirmed that section 6 of the Charter cannot be interpreted in a way which violates the doctrine of state sovereignty. For that reason, the Court held that there is no automatic right for Canadian citizens to serve foreign criminal sentences in Canada. This would violate the exclusive right of foreign governments to administer criminal justice within their territories. Similarly, an interpretation that the Charter guarantees the right leave Canada and enter the United States would violate the sovereignty of the United States to control the entry of non-citizens into its territory.

[81] In the decision of Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, [2010] 1 F.C.R. 267, Mr. Abdelrazik was born in Sudan and also held Sudanese citizenship. He came to Canada as a refugee and became a Canadian citizen in 1995. Mr. Abdelrazik returned to Sudan in 2008 to visit his mother. Mr. Abdelrazik was detained by the Sudanese authorities and during this time, his Canadian passport expired.

[82] Abdelrazik was placed on a no fly list because of his association with two other individuals whom the UN Security Council 1267 Committee had listed then as associates of Al-Qaeda and were subject to a flight ban. Mr. Abdelrazik sought refuge in the Canadian Embassy in Khartoum, Sudan.

[83] The Court ordered Canada to provide an emergency passport that would permit him to travel and enter Canada, and to escort him to Montreal. The decision stated that where a Canadian citizen is outside Canada, the government of Canada has a positive obligation to issue an emergency passport to allow him to enter Canada, pursuant to section 6(1) of the Charter.

[84] I find that the Abdelrazik decision does not apply to the case before me because it confirms a right of a Canadian citizen to re-enter Canada. In this case, Plaintiffs are claiming that Canada’s actions of requesting the United States authorities to put the Plaintiffs’ names on a list, describing them as terrorists, has prevented them from entering or travelling through the United States.

[85] In Divito, the Supreme Court held that section 6 of the Charter could not be interpreted in a way that violates state sovereignty. The Court held that a Canadian citizen does not have an automatic right to serve foreign criminal sentences in Canada as this could violate the exclusive right of foreign governments to administer criminal justice within their territories. Similarly, section 6 of the Charter guarantees a Canadian citizen the right to leave Canada, but does not guarantee a right of entry into any other sovereign state, including the United States as this would violate the sovereignty of the United States to control entry of non-citizens into its territory.

[86] In Kamel v. Canada (Attorney General), 2009 FCA 21, [2009] 4 F.C.R. 449, the Federal Court of Appeal considered a case where the government refused to issue a passport to a Canadian citizen. The hearing judge had found that the Minister’s decision to withhold the passport was an infringement of the applicant’s section 6 right to mobility. On appeal, the government attempted to argue that the mobility right did not impose a duty on the State to facilitate international travel of Canadian citizens but the Court of Appeal rejected this argument, noting that section 6 of the Charter must be interpreted in a manner consistent with the reality of the world we live in (Kamel at paras. 14-15):

It is theoretically possible that a Canadian citizen can enter or leave Canada without a passport. In reality, however, there are very few countries that a Canadian citizen wishing to leave Canada may enter without a passport and very few countries that allow a Canadian citizen to return to Canada without a passport (A.B., Vol. 7, page 1406, Thomas affidavit). The fact that there is almost nowhere a Canadian citizen can go without a passport and that there is almost nowhere from which he or she can re‑enter Canada without a passport are, on their face, restrictions on a Canadian citizen’s right to enter or leave Canada, which is, of course, sufficient to engage Charter protection. Subsection 6(1) establishes a concrete right that must be assessed in the light of present-day political reality. What is the meaning of a right that, in practice, cannot be exercised? [emphasis added].

[87] In the Kamel scenario, while a foreign State could maintain sovereignty over its borders by requiring a passport for entry, the thrust of the Court’s critique was aimed at government conduct which unlawfully prevented a Canadian citizen from meeting the requirement of the foreign state. While the government’s position in Kamel was that the respondent was free to enter or leave Canada, the Court looked beyond this legal construct to the present day reality where movement between borders almost universally requires a passport.

[88] Could the Plaintiffs in the current situation make the case that their section 6 mobility right to enter or leave Canada is compromised where communications from law enforcement to the US authorities has resulted in a travel ban through the country? Maybe.

[89] Section 6 of the Charter gives every Canadian citizen the right to enter, remain and leave Canada. In this case, the actions of the RCMP have restricted the ability of the Plaintiffs to leave Canada or travel from Canada to any other part of the world through the United States. In this context, the Plaintiffs cannot leave or return to Canada using an automobile. Many international flights travel through the United States and our country’s largest contiguous border is shared with the United States. Where travel plans can no longer be based on logical convenience or financial sense and a person’s reasonable range of options for exiting and entering the country has been unjustly compromised, it is not plain and obvious that a Section 6 claim will fail.

Disposition of Rule 21 Motion

[90] The motion to strike Paragraph 98 of the Plaintiffs’ Statement of Claim, which claims damages based on a breach of their section 6 Charter mobility rights, is dismissed for the reasons given above.

Costs

[91] The parties may make brief written submissions on costs within 15 days.

Justice Robert Smith

Released: June 15, 2017

CITATION: Almalki v. Canada (A.G.), 2017 ONSC 3750

COURT FILE NO.: 10-49681

DATE: 2017/06/15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SAFA ALMALKI, NAZIH ALMALKI, YOUSSEF ALMALKI and BASSAM KANDAR

Plaintiffs (Responding Parties)

– and –

ATTORNEY GENERAL OF CANADA

Defendant (Responding Party)

REASONS FOR DECISION

R. Smith J.

Released: June 15, 2017