Court File and Parties

COURT FILE NO.: CV-21-00657522-0000 DATE: 20220214 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ebrahim Toure, Plaintiff AND: Attorney General of Canada et al., Defendants

COUNSEL: Louis Century, Melanie Anderson and Jared Will, for the Plaintiff Judy Michaely and Christopher Crighton, for the Defendants

HEARD: October 19, 2021

Endorsement

[1] This is a motion brought by the Attorney General of Canada (“Attorney General”) under R. 21.01(1)(b) of the Rules of Civil Procedure to strike two paragraphs from the Statement of Claim which deal with a claim for wide ranging non-monetary relief under s. 24(1) of the Canadian Charter of Rights and Freedoms.

[2] The essence of the Attorney General’s claim is that the court does not have jurisdiction to grant the requested relief, since it would intrude on the executive branch of government’s powers by seeking to “judicially reorganize the structure, policies and procedure of the Canada Border Services Agency, significantly impede Officer Lewis’ employment duties and grant the Plaintiff resident status” (Attorney General’s Factum, para. 1).

[3] Irrespective of the outcome of this motion, the Attorney General also seeks an extension of time of 30 days from the date of the release of this decision to deliver and file a statement of defence.

[4] The Plaintiff, Responding Party (“Mr. Toure”), states that this motion was brought under the wrong rule, fails to meet either of the preconditions under r. 21.01(1)(b) and, in any event, it is not plain and obvious that his claims for relief under the Charter will not succeed.

[5] The motion to strike is dismissed, and the motion to extend time to deliver a statement of defence is granted, for the following reasons.

Background

[6] This action arises out of Mr. Toure’s allegations that he was arbitrarily arrested and detained by Canada Border Services Agency (“CBSA”) contrary to sections 7 and 9 of the Charter. He further alleges that the wrongful detention was the product of fraudulent behaviour by one of the CBSA’s officers, Officer Lewis, and the CBSA.

[7] The action was commenced by way of Statement of Claim dated February 23, 2021. A statement of defence has not been filed. The Attorney General served its Notice of Motion to strike these paragraphs on May 19, 2021. No other steps have been taken in this proceeding.

[8] The Attorney General seeks to strike the subparagraph 1(d) of the Statement of Claim requiring the Defendants to:

(i) implement procedures at the Canada Border Services Agency (“CBSA”) to verify the authenticity of documents used to remove foreign nationals from Canada;

(ii) implement procedures at the CBSA to ensure that enforcement actions do not produce de jure or de facto statelessness;

(iii) implement procedures at the CBSA to ensure transparency in the processes used to obtain identity and travel documents from foreign authorities or agents;

(iv) adopt policies at the CBSA ensuring the retention of documents, and in particular prohibiting CBSA Officers from discarding or destroying records;

(v) adopt policies at the CBSA requiring that interviews that may lead to detention or removal proceedings are recorded and the recordings are preserved;

(vi) implement a system of independent oversight including an independent body with powers to investigate complaints of misconduct by CBSA officers;

(vii) remove Officer Dale Lewis from any position in which he is authorized to exercise powers of investigation, detention, removal or communication with foreign states and parties or to provide evidence in any legal proceedings; and,

(viii) grant permanent residence status to the Plaintiff, or in the alternative, a renewable temporary residence permit.

[9] The Attorney General also seeks to strike paragraph 78 of the Statement of Claim:

…[N]on-monetary relief under section 24 of the Charter, including an order that CBSA and Canada be required to implement a system of independent oversight. Given the extreme vulnerability of people in the position of Toure, and the gravity of the misconduct by Officer Lewis and his colleagues, such forward-looking remedies are necessary to ensure that such flagrant abuses are deterred in the future.

Scope of Rule 21.01(b)

[10] At the motion, the Attorney General confirmed that it was only relying on r. 21.01(1)(b):

21.01(1) A party may move before a judge,

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. (emphasis added)

[11] No evidence is admissible on a motion to strike brought under Rule 21.01(1)(b).

[12] The preliminary issue on this motion can be distilled to whether or not a motion seeking to strike a substantive ground of relief constitutes a “cause of action” within the meaning of r. 21.01(1)(b).

[13] The purpose of r. 21.01(1)(b) is to strike claims (or defences) from the pleadings that have no reasonable prospect of success based on an application of the law to the facts pleaded in the Statement of Claim (or Statement of Defence) which are deemed to be true (assuming they are capable of proof). The Attorney General frames the Charter relief sought as a “claim” in the nature of a cause of action. However, with respect, this characterization misconstrues the type of “claims” captured by this subrule.

[14] The Supreme Court of Canada articulated the test for striking out “claims” under a similarly worded rule in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 SCR 45, at para. 17 as follows:

The parties agree on the test applicable on a motion to strike for not disclosing a reasonable cause of action under r. 19(24)(a) of the B.C. Supreme Court Rules. This Court has reiterated the test on many occasions. A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action:…Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial…(emphasis added)

[15] The Attorney General appears to parse out the second section of the above passage, focusing a “claim” as expanding the scope of a “cause of action” to claims for relief or, in other words, remedies, to justify proceeding under this rule. The Attorney General did not advance any jurisprudence in which a claim for relief was captured by a motion to strike as constituting a cause of action. Its cases focused on the scope of remedies afforded by s. 24(1) of the Charter, in an effort to demonstrate that the challenged remedies were essentially untenable and to suggest appropriate constraints on the discretion of the court in fashioning remedies under the Charter.

[16] In order to succeed, the Attorney General must demonstrate that a cause of action has been interpreted to include remedies. There is no jurisprudence offered for such a proposition.

[17] In all of the cases advanced by the Attorney General regarding motions to strike claims on the basis that they failed to disclose a cause of action, the claims struck were not the requested remedies. In some of those cases, the remedies also failed but the discussion concerning the tenability of the remedies was a separate issue from striking the cause of action; e.g.: La Rose v. Canada, 2020 FC 1008 (Fed. Ct.).

[18] Based on a plain reading of r. 20.01(1)(b), the claims that can be struck under this subrule are only causes of actions. While they inevitably give rise to requests for remedies, the remedies were not struck as causes of action. They are not the same thing.

[19] The phrase, “cause of action”, is typically understood in two ways within the context of pleadings. First the constellation of facts that comprises the plaintiff’s complaint giving rise to a remedy, and second, the legal characterization of the complaint giving rise to a remedy. Examples of the latter include negligence, breach of fiduciary duty, breach of contract, or, in this proceeding, a violation of rights and freedoms enshrined in the Charter giving rise to a remedy under s. 24(1). See, for example, 1309489 Ontario Inc. v. BMO Bank of Montreal, 2011 ONSC 5505, 107 O.R. (3d) 384, at paras. 18 – 26 for a helpful discussion of what a cause of action is. I am not aware of any authority in which a “cause of action” was interpreted to mean the remedy requested. No case was provided in support of such a proposition, nor was any case advanced in which a remedy or relief requested was a “cause of action” within the meaning of r. 21.01(1)(b).

[20] The Attorney General has conflated the phrase “claim for relief” with a “claim giving rise to a cause of action”. The Attorney General has not sought to challenge, much less strike, any cause of action. Accordingly, the Attorney General does not reach first base and the motion must fail on this ground alone.

[21] While the parties spent considerable time advancing arguments with respect to the legal tenability of the non-monetary relief sought by Mr. Toure under s. 24(1) of the Charter, including the scope of the court’s jurisdiction to grant such non-monetary relief, in light of my procedural finding, it is not necessary to rule on this matter. Indeed, given the novelty of the Charter relief sought and the constitutional nature of this action, it would, in my view, be unwise to opine on this important issue by way of obiter within the context of a motion to strike.

[22] This does not mean that parties have no opportunity to challenge the justiciability of a particular remedy. For example, r. 21.01(1)(a) may provide such an opportunity.

[23] Accordingly, this issue will have to be left for another day. That said, I will observe that, based on the arguments made, the Attorney General has a high bar to reach at this early stage of the proceedings.

Disposition

[24] The motion to strike certain paragraphs of the Statement of Claim is dismissed.

[25] Leave is granted to the Attorney General to deliver and file its statement of defence within 30 days from the date of the release of this Endorsement.

[26] The Attorney General advised at the outset of the motion that it would not be seeking costs, irrespective of the outcome. However, Mr. Toure is seeking costs.

[27] Accordingly, unless the parties can agree on costs (and they should try), Mr. Toure will deliver his written submissions within 10 days from the date of the release of these reasons, and the Attorney General will deliver responding submissions within 10 days thereafter. Each of the written submissions are not to exceed 3 pages and should be delivered to my judicial assistant.

Justice S. Vella Date: February 14, 2022