COURT FILE NO.: CV-18-00596341
DATE: 20190201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KASHIF MOHAMMED ALI (a.k.a. ALI ADONGO)
Plaintiff
– and –
THE ATTORNEY GENERAL OF CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendants
Jared Will, for the Plaintiff
Sharon Stewart Guthrie and Susan Gans, for the Defendant the Attorney General of Canada
HEARD: January 15, 2019
Justice s. nakatsuru
[1] After seven years in detention at maximum security provincial remand jails awaiting his deportation from Canada, Mr. Kashif Mohammed Ali was released on April 28, 2017, by Nordheimer J. (as he then was) on a habeas corpus application. Nordheimer J. found that Mr. Ali’s continued detention was a violation of his rights under sections 7 and 9 of the Canadian Charter of Rights and Freedoms. Mr. Ali has now sued the Attorney General of Canada (henceforth “Canada”) and Her Majesty the Queen in Right of Ontario (henceforth “Ontario”) both in tort and under the Charter. He seeks declarations and many millions of dollars in damages.
[2] Canada brings a motion under rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to strike a number of claims brought by Mr. Ali in his Fresh as Amended Statement of Claim (henceforth Amended Statement) against Canada. Regardless of my decision, the legal suit will go on. Not all of Mr. Ali’s causes of action have been challenged by Canada. Ontario has not joined in this motion to strike.
[3] For the following reasons, I agree that some portions of Mr. Ali’s Amended Statement should be struck. I disagree with Canada that others should.
[4] I will set out an overview of the claim, the test to be used on a motion like this, and then I will deal with each issue raised on this motion separately.
A. OVERVIEW OF THE PLAINTIFF’S PLEADINGS
[5] The Plaintiff’s pleadings contain the following information.
[6] Mr. Ali was born in Ghana. His father is Ghanaian. His mother is Nigerian. Although Mr. Ali could be entitled to citizenship from either country, neither Ghana nor Nigeria will accept him as their national. Mr. Ali entered Canada in 1986 and made a refugee claim. Due to criminal convictions he received in October of 1995, the Minister of Immigration declared him a danger to the public. Mr. Ali’s refugee claim could not be pursued and the existing deportation order became enforceable. During this time, Mr. Ali remained in immigration detention.
[7] On January 29, 1996, Mr. Ali was deported to Ghana. Canada attempted to do this despite Ghana’s prior refusal to acknowledge Mr. Ali’s Ghanaian nationality. The Ghanaian officials refused his entry as they were not satisfied with his identity and nationality. Mr. Ali was detained in Ghana until October 1996, when he was returned to Canada by Canadian authorities. The Canadian authorities prolonged his detention in order to pursue investigation and coerce Mr. Ali to provide more biographical information. The authorities knew that his detention conditions in Ghana were exceptionally harsh, cruel, and dangerous. The Canadian authorities had control of his detention in Ghana and had an ability to bring him back to Canada earlier if they wanted to.
[8] Upon returning to Canada in October 1996, Mr. Ali was initially detained by immigration authorities but then released on a bond. However, due to further arrests and criminal convictions while out of custody, Mr. Ali was arrested on February 19, 2010, and he remained in detention on immigration grounds until he was ordered released by Nordheimer J. on April 28, 2017, following a combined habeas corpus and Charter application.
[9] Canada is responsible for Mr. Ali’s detention through the acts of the Department of Immigration, Refugees, and Citizenship Canada and the Department of Public Safety and Emergency Preparedness, which are in turn responsible for the Canada Border Services Agency (henceforth “CBSA”) and the Immigration Division, an independent tribunal responsible for conducting detention reviews for persons detained pursuant to the Immigration Refugee Protection Act, S.C. 2001, c. 27. (Henceforth “IRPA”).
[10] During the seven years detention, Mr. Ali was housed in provincial maximum security jails. Canada had contracted with Ontario to allow for the incarceration of immigration detainees at such locations. The CBSA elected to detain Mr. Ali in these institutions, despite its knowledge of the poor conditions and the harmful and prejudicial effects experienced by Mr. Ali while detained. Canada did this as a mechanism of coercion and punishment.
[11] Throughout his detention for the purpose of removal for deportation, Canada knew that such removal was neither possible nor was it attempted.
[12] During this detention, Mr. Ali underwent over 80 detention reviews before the Immigration Division as required by s. 57 of the IRPA. At each review, the CBSA Hearings Officer sought to maintain Mr. Ali’s detention on the ground that he was not cooperating with his removal and was withholding information. The CBSA misled the Adjudicators of the Immigration Division regarding the prospects of Mr. Ali’s removal by saying he could facilitate his removal by providing further information when it knew that Ghana and Nigeria would not accept him as a citizen. The CBSA also withheld favorable information relating to Mr. Ali’s entitlement to Nigerian nationality. The Adjudicators accepted the CBSA’s representations and continued Mr. Ali’s detention.
[13] During the detention, Mr. Ali suffered acute and chronic mental and physical health problems and lived in fear. As a result of the detention, Mr. Ali suffers continuing depression, anxiety, auditory hallucinations, and delusions. His physical health has deteriorated and he has chronic stomach problems, knee pain, and hemorrhoids.
B. THE TEST UNDER RULE 21.01(1)(b)
[14] In order to succeed on a motion to strike, the Defendant must demonstrate that it is plain and obvious that the statement of claim fails to disclose a cause of action and there is no reasonable prospect of success. When considering such a motion, the facts as pleaded are assumed true unless the facts are manifestly incapable of being proven. Leave to amend will not be permitted when it is plain and obvious that no tenable cause of action is possible on the facts alleged: Conway v. L.S.U.C., 2016 ONCA 72, 344 O.A.C. 291 at para. 7.
[15] The rationale for this test has been stated this way in R. v. Imperial Tobacco Canada Limited, 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 19-21:
The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.
This promotes two goods — efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless. The same applies to judges and juries, whose attention is focused where it should be — on claims that have a reasonable chance of success. ...
Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before McAlister (Donoghue) v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562 (U.K. H.L.) introduced a general duty of care to one's neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (U.K. H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in McAlister (Donoghue) v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.
C. THE CLAIMS AGAINST THE ADJUDICATORS OF THE IMMIGRATION DIVISION
[16] Canada has moved to strike the claims against the Immigration Division. It has submitted that the Immigration Division and its Adjudicators who made the detention orders against Mr. Ali are statutorily immune from suit. In addition, Canada submits that the Immigration Division is not a suable entity. Finally, Canada submits that insufficient material facts are in the pleadings to make out the claims.
[17] Canada submits it is plain and obvious that none of the three claims advanced against the Adjudicators can succeed. Those claims are: 1) negligent investigation; 2) malicious prosecution; and 3) breach of Mr. Ali’s Charter rights under ss. 7, 9, 12, and 15.
[18] Mr. Ali responds that Canada has misinterpreted the Amended Statement. He argues that the suit is not against the Immigration Division but the Adjudicators. Canada is liable for the actions of its employees or servants, the individual Adjudicators of the Immigration Division, who made the decisions on Mr. Ali’s detention reviews under ss. 57 and 58 of the IRPA. Mr. Ali argues that he has not sued the Immigration Division and does not allege it is an agent of the Crown. Nor does he argue that it is a non-corporate statutory entity that can be sued. On the other hand, Mr. Ali submits the individual Adjudicators do not enjoy any immunity against the claims of negligent investigation, malicious prosecution, or for Charter breaches. Given this, Mr. Ali submits that the claims should not be struck.
[19] Before I begin my analysis, I will make a preliminary observation. When it comes to the purported claims against the Immigration Division and the Adjudicators, I can easily see how Canada has interpreted the Amended Statement in the fashion it has. On this issue, the Amended Statement is far from being a model of clarity.
[20] The Immigration Division is not a named Defendant. Nor is it alleged that Canada is responsible for the liability of the Immigration Division as a legal entity. Yet, in para. 32 of the Amended Statement the Immigration Division is identified and described as an entity for which Canada is allegedly liable for under the heading of “Defendants Identification”. Given Mr. Ali’s position that he is not suing the Immigration Division, this paragraph should be struck. Furthermore, given this concession by Mr. Ali, it is not necessary for me determine whether the Immigration Division is a suable non-corporate statutory body: Ontario v. Gratton-Masuy Environmental Technologies Inc., 2010 ONCA 501, 321 D.L.R. (4th) 25. However, were it necessary to do so, I would have found using the factors set out in Westlake v. Ontario, 1971 680 (ON SC), [1971] 3 O.R. 533 (Ont. H.C.J.) that the Immigration Division is not a suable entity: Gratton-Masuy Environmental Technologies Inc, at paras. 36-47; 52-53; Hollinger Bus Lines v. Ontario Labour Relations Board (1952), 1952 16 (ON CA), [1952] O.R. 366, at paras. 11-19.
[21] Of course, as it was in Gratton-Masuy Environmental Technologies Inc, the individual Adjudicators may be liable even though the Immigration Division is not a suable non-corporate statutory body.
[22] The individual Adjudicators who made the detention orders are also not named Defendants. In my opinion, it is an open question whether Canada is vicariously liable for the acts of such members of an independent quasi-judicial statutory tribunal: Speckling v. Kearney, 2006 BCSC 506 at paras. 13-15, aff’d 2007 BCCA 145 at paras. 4-5. That being acknowledged, for the purposes of this motion, I am prepared to assume that Canada is vicariously liable or is the proper representative Defendant for the Adjudicators. The main thrust of the arguments before me centered on the immunity enjoyed by the Adjudicators and whether the claim of malicious prosecution could be made out on the facts pleaded. I will decide this motion on that basis.
[23] Prior to assessing those legal issues, it is worthwhile to set out the core of the allegations made against the Adjudicators. I also appreciate that other parts of the Amended Statement are relevant to the claims and that the Amended Statement must be examined as a whole on this motion. That said, setting out paragraph 56 of the Amended Statement provides illuminating context to Canada’s motion to strike. This paragraph states:
[56] The Plaintiff pleads that by upholding his detention at every detention review, the Adjudicators of the Immigration Division of the IRB (sic) furthered the negligent investigation and malicious prosecution of the CBSA. The particulars against the Adjudicators of the Immigration Division are as follows:
a. The Adjudicators of the Immigration Division failed to conduct its detention reviews in a reasonable manner by, inter alia, failing to put the CBSA to its burden of proof and in accepting the CBSA’s hearsay evidence at face value notwithstanding the Plaintiff’s denials of its accuracy and veracity;
b. The Adjudicators of the Immigration Division failed to conduct its detention reviews in a manner that was procedurally fair by, inter alia, failing to ensure that the Plaintiff was made aware of the case to meet and failing to ensure that the CBSA provided adequate disclosure;
c. The Adjudicators of the Immigration Division upheld the CBSA’s unlawful use of detention as a coercive tactic;
d. The Adjudicators of the Immigration Division failed to consider all of the required evidence to complete a fair investigation to determine whether there was a reasonable prospect of removal;
e. The Adjudicators of the Immigration Division acted in an incompetent manner;
f. The Adjudicators of the Immigration Division failed to uphold their statutory duties; and
g. The Adjudicators of the Immigration Division engaged in a reckless course of conduct which they knew or ought to have known would result in a breach of Charter rights and personal injury and damage to the Plaintiff.
[24] I will first examine Canada’s arguments about the Adjudicators’ statutory immunity.
1. The Immunity Provision Found in s. 156 of IRPA
[25] Section 156 of the IRPA states:
- The following rules apply to the Chairperson and the members in respect of the exercise or purported exercise of their functions under this Act:
(a) no criminal or civil proceedings lie against them for anything done or omitted to be done in good faith; and
(b) they are not competent or compellable to appear as a witness in any civil proceeding.
[26] Even apart from the issue of whether the Adjudicators owed Mr. Ali a private law duty of care, I find that it is plain and obvious that this provision bars the claim of negligent investigation. Thus references to this claim of negligent investigation against the Adjudicators in paragraphs such as 55 and 56 must be struck: Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, at paras. 16-20.
[27] Canada goes further and argues that this immunity provision bars the Charter claims of Mr. Ali against the Adjudicators. In this regard, Canada relies upon the case of Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3. I will elaborate more on this case later in my reasons. For present purposes, I find it is not plain and obvious that s. 156 precludes a Charter claim. The immunity provision in Ernst was more comprehensive, precluding any action or proceeding against the Alberta Energy Regulator (henceforth the “Board”) for any act or thing done purportedly in pursuance of the Energy Resources Conservation Act. Here, s. 156 only bars criminal or civil proceedings against an adjudicator for any act or omission done in “good faith”. It could be reasonably argued that if an Adjudicator breached Mr. Ali’s Charter rights, this does not qualify as an act done in good faith. Put another way, it is not plain and obvious that s. 156 would preclude a Charter claim being advanced: Ernst at para. 50 per Cromwell J.
[28] I also point out that in Ernst, the majority of the court found it significant that Ms. Ernst had accepted that the immunity provision in issue prevented the awarding of Charter damages. Indeed, Ms. Ernst relied upon this in her argument that such a broad and sweeping immunity clause itself was a constitutional violation. Aside from the dissenting judges, the plurality of the court did not find it necessary to determine whether the immunity clause did in fact preclude Charter damages. They accepted the Alberta Court of Appeal’s finding that it did.
[29] Therefore, I do not accept Canada’s position that s. 156 can be relied upon to strike Mr. Ali’s Charter claims against the Immigration Division Adjudicators.
2. The Charter damages claims against the Adjudicators
[30] However, based upon Ernst, I accept Canada’s submission that it is plain and obvious that the Charter claims against the Adjudicators for damages has no reasonable prospect of succeeding.
[31] In Ernst, Cromwell J., speaking for four members of the Supreme Court of Canada, found that it was plain and obvious that the immunity provision barred Ms. Ernst’s claim for Charter damages. On the issue of whether the immunity clause was unconstitutional, he held it was plain and obvious that it was not. Therefore, the immunity clause applied and the claim for Charter damages was struck. Cromwell J. applied the test for damages under s. 24(1) of the Charter as articulated in the case of Vancouver(City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28. In the case of the Energy Resources Conservation Board in Ernst, there were countervailing factors that established that damages were not a just and appropriate remedy under s. 24(1). Three factors considered collectively established this. First, the alternative remedy of judicial review was available to substantially vindicate Charter rights and clarify the law to prevent future breaches. Secondly, good governance concerns were engaged since permitting damages would undermine the effectiveness of the Board and inhibit effective governance. Thirdly, to permit the issue of the appropriateness of Charter damages on a case-by-case basis would largely undermine the purposes served by an immunity. Cromwell J. held that these countervailing factors made it plain and obvious that Charter damages could not be an appropriate and just remedy against any quasi-judicial decision-maker (see paras. 32-57).
[32] Abella J. wrote a concurring judgment. She too dismissed Ms. Ernst’s appeal. However, she did it for a different reason. At no prior point in the proceeding did Ms. Ernst challenge the constitutionality of the immunity clause. She had not given the required notice to do so. In Abella J.’s view, this was an improper collateral attack on the clause’s constitutionality. While she dismissed the appeal on this basis, Abella J. noted the statutory and common-law immunities that existed for judicial and quasi-judicial decision-makers and the good policy reasons to immunize them from personal damages claims. She commented that based upon the Ward analysis it was likely that Charter damages are not an appropriate and just remedy in the circumstances (at para. 123). However, since it was necessary to determine the constitutionality of the immunity clause before conducting a Ward analysis, Abella J. dismissed the appeal without the need to decide the point.
[33] The four dissenting judges found that it was neither plain nor obvious that the immunity clause barred Charter damages, nor that Charter damages would never be a proper remedy under s. 24(1) in the circumstances of Ms. Ernst’s case. They would have allowed her appeal and not have struck her claim against the Board.[^1] In applying the Ward analysis, McLachlin C. J., writing for the dissenting judges, departed from Cromwell J. at the third step of the analysis. She found it significant that there was nothing in the record that indicated the Board was acting in an adjudicative capacity when it wrote to Ms. Ernst advising her that she could no longer write to the Board until she stopped criticizing it. The policy reasons that the majority referred to were undercut when the quasi-judicial body was not acting in its adjudicative capacity but was acting to punish the plaintiff. Importantly for the purposes of this motion, McLachlin C.J. had little difficulty with the proposition that when such a body acts in its adjudicative functions, the policy reasons for providing immunity would be compelling. She states (at para. 171):
We acknowledge that our common law recognizes absolute immunity from personal liability for judges in the exercise of their adjudicative function. This is necessary to maintain judicial independence and impartiality (Sirros v. Moore, [1975] 1 Q.B. 118 (Eng C.A.); Gonzalez v. British Columbia (Ministry of Attorney General), 2009 BCSC 639, 95 B.C.L.R. (4th) 185; Taylor v. Canada (Attorney General), 2000 17120 (FCA), [2000] 3 F.C. 298 (C.A.), leave to appeal refused, [2000] 2 S.C.R. xiv (note) (S.C.C.)). Such immunity is not inconsistent with the Charter, as judicial immunity itself is a fundamental constitutional principle (Taylor, at para. 57). Similarly, we anticipate that compelling good governance concerns rendering Charter damages inappropriate or unjust will exist where the state actor has breached a Charter right while performing an adjudicative function.
[34] In my view, when the Amended Statement is read as a whole, with particular emphasis paid to para. 56, it is plain and obvious to me that the claim for Charter damages against the Adjudicators stands no reasonable prospect of success. It is certain to fail. This is because the only material acts and omissions that Mr. Ali can reasonably base his claim on are the detention decisions made by the Adjudicators. In doing that, they were acting in their adjudicative capacity. When all the reasons by the differing justices in Ernst are carefully scrutinized, there is no true dissenting view that in using the Ward analysis, Charter damages are not an appropriate and just remedy for Charter violations made by a quasi-judicial body acting in its adjudicative capacity. As a result, this claim against the Adjudicators must be struck.
[35] In my opinion, no leave to amend is allowed. It is not possible to amend this claim such that it would survive the authority of Ernst. It is no longer a novel claim that Mr. Ali is presenting. Nor is it one that he could possibly present if given a chance to amend. Given the circumstances, no tenable cause of action exists supporting his claim for Charter damages.
[36] Before leaving this issue, I feel obliged to point out that the Amended Statement is most deficient when it comes to the Charter claims in general. It simply states that Canada violated ss. 7, 9, 12 and 15 in the ways claimed. However, it is impossible to determine in what ways the Adjudicators were responsible for such violations. There are no material facts pleaded to support the specific claims against the Adjudicators themselves as compared to other servants or employees of the Crown.
3. The Claim of Malicious Prosecution against the Adjudicators
[37] This conclusion does not dispose of all of the Plaintiff’s claims against the Adjudicators. There is one remaining. The Plaintiff submits that the tort of malicious prosecution against the individual Adjudicators survives any application of the immunity clause given that s. 156 is limited to only acts or omissions done in good faith. The Plaintiff further relies upon Gratton-Masuy Environmental Technologies Inc. and submits even if the Immigration Division is not suable, its members, the Adjudicators, can be sued in tort. Gratton-Masuy Environmental Technologies Inc. involved a motion to strike a claim against members of a subcommittee of the Building Materials Evaluation Commission for the tort of misfeasance of public office. Although it was held that the Commission was not a suable entity, the individual members of the subcommittee could be sued for the tort. Nevertheless, on the pleadings in that case, the claim was struck as it was plain and obvious that it did not disclose any reasonable cause of action against the members.
[38] The tort is “malicious” prosecution. I will say more about the requisite elements of this tort later. For now, let me say that Mr. Ali relies upon the definition of “malice” as action done for an improper purpose, something outside of a proper statutory purpose. On this point of law, I cannot agree with him. As noted in Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 359 at paras. 80 to 81, while “malice” does require proof of an improper purpose, in the context of a criminal prosecution, this meant the wilful perversion or abuse of the prosecutor’s office or the process of justice. Merely failing to abide by one’s statutory obligations does not suffice.
[39] Here, I find it plain and obvious that the claim for malicious prosecution against the Immigration Division Adjudicators discloses no reasonable cause of action.
[40] First of all, it is unsustainable to find that the Adjudicators instituted a proceeding as required for the tort of malicious prosecution. They were Adjudicators and decided the reviews based upon the evidence and argument before them. Bluntly put, they were not “prosecutors” in any form or fashion.
[41] Secondly, it is plain and obvious that material facts have not been pleaded that could reasonably meet the test of malice. If one looks at the alleged particulars of malice as required by rule 25.06(8) against the Adjudicators in paragraph 56 of the Amended Statement, the particulars nearly all relate to grounds that are typical of a judicial review application. These include accepting hearsay evidence, failing to conduct a procedurally fair hearing, failing to consider required evidence, failing to uphold their statutory duties, incompetence, and engaging in reckless conduct that they knew or ought to have known breached the Charter or caused Mr. Ali injury. In addition, these are all bald legal conclusions and not material facts. Further, no material facts are pleaded about the Adjudicators wilfully perverting or abusing their office or the judicial process they were engaged in. No material facts supporting malice is pleaded, nor can such facts reasonably be inferred from the pleadings. Either individually or cumulatively, what is pleaded is not capable of supporting, without more, the requirement of malice: Wang v. Canada, 2016 FC 1052, aff’d 2018 FCA 46, at paras. 14 – 21.
[42] Thirdly, I appreciate that it is also alleged that the Adjudicators furthered the CBSA’s malicious prosecution. Thus, it could be argued that Mr. Ali’s claim is that the Adjudicators committed the tort by aiding the malicious prosecution by the CBSA Hearings Officers. However, when the claim is read as a whole, this claim cannot be sustained. For instance, in paragraph 55(e), it is alleged that the CBSA actually misled the Adjudicators about the prospects of Mr. Ali’s removal. I recognize that it is also alleged that the Adjudicators upheld the CBSA’s unlawful use of detention as a coercive tactic, but this is just a bald assertion. What is completely lacking is any material facts supporting the Adjudicator’s knowledge of this or the requisite intention by the Adjudicators to aid the CBSA in this. It cannot be forgotten that there were over 80 detention reviews. None of the Adjudicators are ever identified. It is pleaded that a significant piece of knowledge was withheld by the CBSA from the Adjudicators. At its highest, in my view, the complaint is that the numerous detention orders made by the Adjudicators had the effect of supporting any tort committed by the CBSA. That is far from setting out the material facts that the Adjudicators aided any malicious prosecution committed by the CBSA.
[43] Thus, I emphasize that it is plain and obvious that the claim of malicious prosecution against the Adjudicators is certain to fail. In so finding, I have considered the Amended Statement as a whole and have not simply focused on para. 56. As the individual Adjudicators are not liable, then Canada is not liable: Gratton-Masuy Environmental Technologies Inc. at para. 79.
[44] No leave to amend should be permitted. In my view, no further material facts could be pleaded to advance a claim against the Adjudicators regarding the tort of malicious prosecution. What Mr. Ali disagrees with is how the Adjudicators decided his detention reviews. This was a matter properly for judicial review. While I appreciate that leave to amend should not lightly be withheld, I find that no tenable cause of action supporting a claim of malicious prosecution against the Adjudicators is possible.
D. THE CLAIMS AGAINST THE CBSA REGARDING MALICIOUS PROSECUTION
[45] The tort of malicious prosecution traditionally has four constituent elements: (a) a proceeding initiated by a defendant; (b) that proceeding terminated in favor of the plaintiff; (c) the absence of reasonable and probable cause for the defendant to initiate the proceeding; and (d) malice on the part of the defendant: Miazga v. Kvello, at paras. 53-56.
[46] On this motion to strike, Canada submits that as against the CBSA and its Hearings Officers, it is plain and obvious that the claim cannot succeed, as the Plaintiff cannot, on the material facts pleaded, establish elements (a), (b), and (d).
[47] Canada submits that the tort of malicious prosecution does not apply to the Hearings Officers representing the Minister of Public Safety and Emergency Preparedness at the detention review hearings before the Immigration Division. It submits that a detention hearing is not a prosecution. It submits that the Hearings Officers have no degree of authority or decision-making power over whether to pursue and continue the matter. For instance, in a criminal matter, the prosecutor can withdraw the charges and thus has the authority to continue or halt the proceedings. By comparison, the immigration detention review process is mandated by statute. It is the Immigration Division that has the authority for the detentions. Such hearings are required after 48 hours from the initial arrest, then seven days, and then every 30 days thereafter. At the hearing, there is no discretion on the part of the Hearings Officer to withdraw the detention. The Officer can only make submissions whether it should continue in light of the grounds for detention. It is the Adjudicator that makes the decision and if an individual is ordered detained, further recurring reviews are required. Thus, Canada submits that the first element of the tort of malicious prosecution is not made out.
[48] Canada further submits the material facts do not establish that the detention reviews were terminated in Mr. Ali’s favor. Canada submits that his success on the habeas corpus application does not assist him, since it is a forward-looking remedy. It is distinct from the immigration detention proceedings. Thus, Canada submits that it cannot be said that the proceedings terminated in Mr. Ali’s favor.
[49] Finally, Canada submits that Mr. Ali has failed to plead full particulars of malice. With respect to his detention in Ghana, the facts pleaded do not establish Canada as having any authority as a prosecutor. Further, the allegations do not establish malice.
[50] Regarding Mr. Ali’s detention in Canada, the Defendant argues that Mr. Ali cannot establish malice solely based on his bald allegations that the CBSA used its power of preventative detention as a mechanism of coercion and punishment.
[51] To start, I agree with one of the submissions made by Canada on this ground. With respect to paragraph 54 where Mr. Ali is suing Canada for malicious prosecution as well as negligent investigation while he was detained in Ghana, the claim for malicious prosecution should be struck. More exactly, just the phrase “malicious prosecution” should be struck, leaving the rest of the paragraph unaltered. Once Mr. Ali was deported and while he was being held in Ghana, there were no proceedings by Canada in existence. His detention and the conditions of detention in Ghana were under the authority of that country. There was no “prosecution” by Canada, malicious or otherwise, at the time. While these facts can reasonably ground Mr. Ali’s other causes of action, it is plain and obvious that the material facts do not amount to nor could they possibly ever amount to the tort of malicious prosecution while he was detained in Ghana. No opportunity to amend could alter this incontrovertible fact. Thus, leave to amend is denied.
[52] Other than that, I have been left unpersuaded by the Defendant’s submissions. I agree with Mr. Ali that these are novel issues of law and cannot be determined on a motion to strike. I have come to this conclusion for the following reasons.
[53] I appreciate that the tort of malicious prosecution is most commonly brought in criminal prosecutions. However, the initiated “proceeding” need not be a criminal one. It is not a closed list. This tort has been brought in professional disciplinary matters, child protection cases, and bankruptcy proceedings: Robson v. Law Society of Upper Canada, 2016 ONSC 5579, 32 C.C.L.T. (4th) 290 at para. 49; Stoffman v. Ontario Veterinary Association, 46 O.A.C. 232 (Div. Ct.); H.V.K. v. Children’s Aid Society of Haldimand-Norfolk, 2003 2364 (ON SC), 37 R.F.L. (5th) 348 (Ont. S.C.) at para. 37; J.O. v. Alberta, 2013 ABQB 693, 576 A.R. 307 at paras. 40-56, 80.
[54] It is not plain and obvious that the initiation and the perpetuation of a detention under the IRPA would fall outside the scope of the tort of malicious prosecution. The tort exists to ensure that the process of justice is not perverted for an improper purpose. It is arguable that if a plaintiff can sue for malicious prosecution in other non-criminal contexts, it should be permitted in this context where the liberty of the individual is at stake.
[55] There is further a significant degree of discretion exercised by the Hearings Officer. Under ss. 55-57 of the IRPA, the CBSA has the discretion to arrest a foreign national and thus initiate the proceeding, which is the detention and the detention review process. In addition, upon arrest, the CBSA has the discretion to release the detainee with or without conditions before they first appear before the Immigration Division. Thereafter, the Hearings Officer at the detention review can argue for or against detention. While Canada is right that it is the Adjudicators who make the detention decisions and the Hearings Officers cannot on their own terminate the proceedings (i.e., the detention) at this point, practically speaking, they exercise a significant amount of discretion and power in how they present the case at the detention review by making recommendations to the Adjudicator about release or detention. In the pleadings, Mr. Ali has pleaded that the CBSA knew from the outset that he could not be deported. Despite that, the CBSA exercised its discretion to arrest him, detain him, not release him in the first 48 hours post-arrest, and to continue to argue for his detention at over 80 detention reviews.
[56] While this discretion of the Hearings Officer is different from Crown prosecutors, I am struck by the close analogy to the bail process in the criminal context. Hypothetically speaking, if an assistant Crown attorney knew at an accused’s bail hearing that the accused could not be tried, but argued for his detention at the bail hearing due to some private animus against the accused, it does not strike me that it would be plain and obvious that a suit for malicious prosecution would be destined to fail.
[57] On this point, I must deal with Canada’s reliance upon a hand-written endorsement of the Ontario Superior Court released June 1, 2018, in Vu v. Her Majesty the Queen in Right of Canada et al. On a motion to strike by Canada, Schreck J. struck the claim for malicious prosecution against the defendants regarding immigration detention reviews. Canada relies in particular on a brief comment by Schreck J. where he held there was no “prosecution” in that case. I can attribute little precedential value to this very short endorsement. It is unclear to me what material facts were being put forward to support the malicious prosecution tort. Schreck J. pointedly also struck the claim on the basis that the plaintiff had not pleaded any particulars with respect to the malice. In such a deficient pleading, it is difficult for me to determine what material facts, if any, were pleaded to support the requisite element of “prosecution”.
[58] With respect to the second element, I have little hesitation in finding that Nordheimer J.’s decision on the habeas corpus application could reasonably be argued as establishing the third element of the tort that the proceedings were terminated in Mr. Ali’s favour. I appreciate that the habeas corpus application was external to the detention review process and the nature of the remedy is dissimilar to a release by an Adjudicator. However, Mr. Ali was released from detention which is the proceeding that is the subject of the claim. As stated by the Supreme Court of Canada in Miazga (at para. 54) the “favourable termination requirement may be satisfied no matter the route by which the proceedings conclude in the plaintiff’s favour.” In a criminal matter, this could include a stay of proceedings which is not an adjudication on the merits of the charge: Romanic v. Johnson, 2012 ONSC 3449 at para. 11, aff’d 2013 ONCA 23. It could also include the granting of a prerogative writ by a superior court in a supervisory role. In short, I find it is not plain and obvious to to me that a successful habeas corpus application in these circumstances would not meet the second element of the tort.
[59] Finally, I find that sufficient material facts have been pleaded to support the final element of malice. It is true that not all the particulars are directly pleaded under a heading referable to malice alone. However, the material facts do not have to be neatly tied to this requisite element, so long as the essential material facts are pleaded: Paton Estate v. Ontario Lottery and Gaming Corp., 2016 ONCA 458, 349 O.A.C. 106, at paras. 14, 48. In this case, Mr. Ali has specifically pleaded that the CBSA was aware from the outset that he could not be deported and was not acting in furtherance of a lawful purpose for detention. In paragraph 55, he gives some specific particulars. These are more than bare assertions. It is pleaded that the CBSA detained him for the disingenuous stated purpose of removal when it knew it was not possible. It is pleaded that the CBSA unlawfully utilized its power of preventive detention as a mechanism of coercion and punishment. In other parts of the Amended Statement, he states this was in order to coerce Mr. Ali to provide the CBSA with more information. It is also alleged that the CBSA intentionally withheld information from Mr. Ali, including making sure he did not know of his legal entitlement to Nigerian nationality or the CBSA’s own findings, uncovered during the habeas corpus application, that there was no reasonable prospect of his deportation. It is pleaded that the CBSA misled the Adjudicators with respect to his prospect of removal by repeatedly stating that Mr. Ali could facilitate his own removal by providing more information, when the CBSA already knew that neither Ghana nor Nigeria would recognize him as their citizen. It is pleaded that in order to punish and coerce Mr. Ali, the CBSA unlawfully detained him in maximum security jails knowing their harsh and dangerous conditions. These are but illustrations. I find that these are more than mere bald assertions. They are material facts which provide the specificity required to support the malice claim. I agree with Mr. Ali that if Canada wishes more particulars, the remedy is to seek further particulars rather than striking the claim.
[60] In addition, I agree with Mr. Ali that the Amended Statement does not simply allege negligent or reckless conduct (although that too is pleaded). It is pleaded that these actions noted above were knowing and deliberate. That is sufficient in the circumstances to support the claim of malice.
[61] I find that Canada has not established that it is plain and obvious that this cause of action has no reasonable prospect of success because it has not shown malice.
[62] Let me conclude on this point by saying this. There is no doubt that the possible expansion of the tort of malicious prosecution to encompass the conduct of the CBSA officers on the detention review is both novel and an expansion of the tort with important ramifications to other proceedings where the liberty or the security of the person is involved. But in that regard, I would refer to comments made by Wilson J. in Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959 at para. 52 where she states:
The fact that a pleading reveals "an arguable, difficult or important point of law" cannot justify striking out part of the statement of claim. Indeed, I would go so far as to suggest that where a statement of claim reveals a difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way can we be sure that the common law in general, and the law of torts in particular, will continue to evolve to meet the legal challenges that arise in our modern industrial society.
E. THE CLAIMS OF INTENTIONAL INFLICTION OF HARM
[63] Mr. Ali has pleaded the tort of intentional infliction of emotional harm against Canada. The tort requires proof of: 1) conduct that is flagrant, extreme, or outrageous; 2) which is calculated to produce harm or knew that the harm was almost certain to occur; 3) that results in demonstrable and provable illness or harm: Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, at para. 44; Princo v. Baycrest Centre for Geriatric Care, 2002 45005 (ON CA), 60 O.R. (3d) 474 (C.A.); Piresferreira v. Ayotte, 2010 ONCA 384, 263 O.A.C. 347 at paras. 70-79.
[64] Canada submits that it is plain and obvious that this cause of action will fail. With respect to the plea that Canada intentionally prolonged his detention in Ghana, Canada submits that there are no material facts to establish that the actions were calculated to produce harm or that Mr. Ali suffered a visible or provable illness arising from Canada’s conduct in 1996. With respect to his detention in Canada from 2010 to 2017, Canada submits that Mr. Ali has failed to plead that Canada desired or intended to cause him harm or was substantially certain the harm would follow. Reasonable foreseeability or reckless indifference does not suffice.
[65] I do not accept Canada’s submissions on this. Statement of claims must be read generously on motions like this. With respect to the 1996 deportation and detention in Ghana, Mr. Ali has plead that Canada knowingly subjected him to harsh, cruel, and dangerous conditions in the Ghanaian jails and prolonged his detention there to induce Mr. Ali to provide information that the CBSA believed he was withholding. These are sufficient material facts to support the requirement that Canada brought this harm about in a calculated fashion. In my view, a large number of specific material facts have been plead about the harm Mr. Ali suffered and continues to suffer from. They include physical, mental, and psychological harm. While in the Amended Statement, such harms are not specifically linked to the Ghanaian detentions, they are linked more generally to Mr. Ali’s detentions. Read generously, it is not plain and obvious that the third requirement of the tort is not sufficiently established on the material facts plead. I further note that if this was the only deficiency and the claim was struck for this reason, I would have granted leave to amend as conceded by Canada to be appropriate.
[66] The same can be said about the 2010-2017 detention. I am satisfied that there are sufficient material facts pleaded. Again, Mr. Ali claims that he was not only subjected to a very lengthy period of detention with conditions of custody that Canada knew to be detrimental to his physical and mental health, but it did so to coerce him into providing additional information about himself. It can readily be inferred from the whole of the pleadings that the Defendant did this intending to cause him harm. Regardless, on these facts, it is plead that the Defendant did this with the knowledge that it was certain such harms in prolonged detention would befall him. Either way, the requirement is met. With respect to the other two requirements, Canada does not take serious issue with them. I find sufficient material facts have been pleaded such that this cause of action should not be struck.
F. THE CLAIM UNDER S. 15 OF THE CHARTER
[67] This issue can be disposed of without in-depth analysis. Canada makes a number of arguments why it is plain and obvious Mr. Ali’s s. 15 claim is certain to fail. Canada submits that Mr. Ali has failed to establish that he was subjected to differential treatment based on an enumerated or analogous ground. It submits that the distinction is not between citizens and non-citizens but rather between non-citizens who meet the grounds for detention and those who do not. It further submits that if the distinction is based on immigration status, this is not an analogous ground. Canada also submits that his differential treatment is not discriminatory. It relies upon Charkaoui v. Canada (MCI), 2007 SCC 9, [2007] 1 S.C.R. 350, which held that a deportation scheme that applies only to non-citizens does not by virtue of that distinction violate s. 15.
[68] Regardless of the ultimate merits of Canada’s position, I agree with Mr. Ali that for the purposes of this motion, Canada has not met the test for the motion to strike based upon the following comments made in Charkaoui v. Canada (MCI) at paras. 129-131:
The appellant Mr. Charkaoui argues that the IRPA certificate scheme discriminates against non-citizens, contrary to s. 15(1) of the Charter. However, s. 6 of the Charter specifically allows for differential treatment of citizens and non-citizens in deportation matters: only citizens are accorded the right to enter, remain in and leave Canada (s. 6(1)). A deportation scheme that applies to non-citizens, but not to citizens, does not, for that reason alone, violate s. 15 of the Charter: Chiarelli.
It is argued that while this is so, there are two ways in which the IRPA could, in some circumstances, result in discrimination. First, detention may become indefinite as deportation is put off or becomes impossible, for example because there is no country to which the person can be deported. Second, the government could conceivably use the IRPA not for the purpose of deportation, but to detain the person on security grounds. In both situations, the source of the problem is that the detention is no longer related, in effect or purpose, to the goal of deportation. In Re A, the legislation considered by the House of Lords expressly provided for indefinite detention; this was an important factor leading to the majority's holding that the legislation went beyond the concerns of immigration legislation and thus wrongfully discriminated between nationals and non-nationals: paras. 54, 81, 134, 157-58, 180 and 229.
Even though the detention of some of the appellants has been long — indeed, Mr. Almrei's continues — the record on which we must rely does not establish that the detentions at issue have become unhinged from the state's purpose of deportation…. [Emphasis added]
[69] In this case, Mr. Ali has claimed that his detention had become “unhinged” from any legitimate state purpose of deportation. As posited in the first example given in Charkaoui, this was because his detention became potentially indefinite, since deportation was impossible as no country would take him. Given the willingness of the court in Charkaoui to entertain this as a possible way that s. 15 could be violated, it cannot be said that this cause of action is destined to fail. As a result, Canada’s motion to strike paragraphs 83 and 84 of the Amended Statement of Claim is dismissed.
G. THE CLAIM OF BREACH OF STATUTORY DUTY
[70] Canada moves to strike any stand-alone cause of action for a breach of statutory duty. Mr. Ali responds that he is not making any such claim and any pleas regarding a breach of statutory duty is relevant to the other claims that he is making. In light of this, subparagraphs 1(c) and (d) are poorly drafted as it can reasonably be interpreted otherwise. Therefore, the phrase “statutory duties” in both subparagraphs should be struck.
H. CONCLUSION
[71] Thus the claims against the Adjudicators of the Immigration Division are struck in their entirety with no leave to amend. I have already specified some of the impugned paragraphs. In accordance with these reasons, Mr. Ali shall file an Amended Statement of Claim within 30 days of the release of this decision.
[72] Canada requests some time to file its Statement of Defence. On consent of the parties, Canada will have 30 days from the receipt of the Amended Statement of Claim to serve and file its Statement of Defence.
[73] With respect to the issue of costs, success on this motion is rather evenly divided. As a result, taking into account all the appropriate factors, each party will bear their own costs of this motion.
Justice S. Nakatsuru
Released: February 1, 2019
COURT FILE NO.: CV-18-00596341
DATE: 20190201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KASHIF MOHAMMED ALI (a.k.a. ALI ADONGO)
Plaintiff
– and –
THE ATTORNEY GENERAL OF CANADA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendants
REASONS FOR JUDGMENT
NAKATSURU J.
Released: February 1, 2019
[^1]: At this point, I feel obliged to observe that the issue of whether the Board was a suable non-corporate statutory entity was not raised as an issue in Ernst. I also note that where proceedings for a declaration is brought in an action, the statutory body must have sufficient legal personality to be sued in its own right; otherwise, the only effective remedy against such a body would be by way of judicial review or prerogative writ: Gratton-Masuy Environmental Technologies Inc., at paras. 49-50, citing Smith v. New Brunswick (Human Rights Commission) (1997), 1997 17791 (NB CA), 143 D.L.R. (4th) 251, leave to appeal dismissed [1997] S.C.C.A. No. 169.