Court File and Parties

COURT FILE NO.: CV-18-604334

MOTION HEARD: 20211118

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mohamed Abdel-Mottaleb, Plaintiff

AND: Attorney General of Canada, Defendant

BEFORE: Associate Justice Jolley

COUNSEL: Jacqueline Dais-Visca and Diya Bouchedid, counsel for the moving party defendant

Jennifer Brevorka and Meghan Pearson, counsel for the responding party plaintiff

HEARD: 18 November 2021

REASONS FOR DECISION

[1] The defendant brings this motion for summary judgment under rule 20.04(2)(a). It seeks a dismissal of the action on the basis that the plaintiff’s claim has raised no genuine issue requiring a trial. Specifically, the defendant argues that there is no special relationship between the plaintiff and the defendant that could give rise to a duty of care, that the plaintiff has not proven a section 7 Charter violation and that the statement of claim discloses no legally tenable causes of action.

A. Overview

[2] The plaintiff, a foreign national, and his ex-wife Dr. Alanna Haist, a Canadian citizen, were involved in a bitter custody and access dispute concerning their minor daughter, who is a Canadian and an Egyptian citizen. All parties resided in Egypt at the time of the dispute. Canadian consular officials in Cairo provided assistance to Dr. Haist at her request from December 2012 until she and the daughter returned to Canada in June 2016. The defendant continued to assist Dr. Haist for some time thereafter. The extent and legitimacy of the services it provided are in issue.

[3] The plaintiff alleges that the assistance provided by the Canadian government facilitated the kidnapping of his daughter contrary to numerous Egyptian court orders, laws and international agreements. He argues that the government owed him duties including a duty to properly investigate the claims made by Dr. Haist before acting on them, to consult him before providing assistance and to share information with him about the whereabouts of their daughter.

[4] In his amended statement of claim, he seeks damages for intentional infliction of emotional distress, misfeasance in public office, conspiracy and breach of his section 7 Charter rights. He advances an alternative claim in negligence with respect to the defendant’s “involvement in the disappearance of [his] daughter, withholding of information regarding her safety and whereabouts, and unlawful removal of the plaintiff’s daughter from Egypt and/or Sudan to Canada”.

[5] The defendant argues that it owes no duty to the plaintiff. First, decisions on providing consular services are an exercise of prerogative power in the conduct of foreign relations. Second, it owes no general legal duty to provide consular services to foreign nationals. Third, it made no promises or took any steps that could give rise to a special relationship in tort with the plaintiff. As such, it would be unreasonable for the plaintiff to expect that his views or interests would be considered by the defendant in deciding what services to offer his ex-wife and daughter, and those actions in assisting Dr. Haist and the daughter could not give rise to a cause of action in favour of the plaintiff.

[6] The plaintiff has conceded that there is no statutorily-created cause of action against Canada under the Privacy Act or the Canadian Criminal Code. He also concedes there exists no statutorily-created cause of action against Canada under the Vienna Convention on Diplomatic Relations, schedule I to the Foreign Missions and International Organizations Act, S.C. 1991, c.41, the Vienna Convention on Consular Relations, schedule II to the Foreign Missions and International Organizations Act, S.C. 1991, c.41, or the United Nations Convention on the Rights of the Child (the “Conventions”). Similarly, he concedes that the neither the Egyptian court orders nor the bilateral Agreement between the Government of Canada and the Arab Republic of Egypt Regarding Cooperation on Consular Elements of Family Matters, gives rise to a cause of action. He does maintain that the laws, treaties, Conventions and court orders remain relevant to the court's consideration of the intentional tort claims of conspiracy, misfeasance in public office and infliction of mental suffering.

B. Evidence on the Motion

[7] As part of its motion, the defendant filed an affidavit sworn by Rebecca Coleman, a paralegal at the Department of Justice Canada and the plaintiff’s response to its demand for particulars. In addition it filed numerous Case Notes from the Global Affairs Canada Consular Management Operations System database, upon which both parties relied.

[8] The plaintiff filed an affidavit sworn 2 June 2021 in response to this motion, an affidavit that he swore in 31 October 2019 in response to a motion for security for costs and an affidavit of Maya Boorah, a lawyer with the law firm acting for the plaintiff, attaching multiple exhibits including the results from the firm’s Access to Information request and his respond to the demand for particulars with detailed exhibits. The caselines filings for both parties exceeded 6,000 pages.

[9] The plaintiff and Dr. Haist married in 2001. Their daughter was born in February 2007. The parents separated in 2013 and divorced in 2014. In the course of their custody dispute, both the plaintiff and Dr. Haist obtained orders from the Egyptian court preventing the other from leaving Egypt with their daughter without the consent of the other parent.

[10] In July 2015 Dr. Haist contacted the Canadian consulate in Egypt for help, alleging that the plaintiff had sexually assaulted their daughter. She then provided the defendant through its consulate with various doctors’ reports and other documents and a description of her failed efforts to file a police report with the Egyptian police. Initially, the consul assisted Dr. Haist in finding a doctor for her daughter.

[11] Dr. Haist’s allegations of sexual abuse by the plaintiff against their daughter escalated in October 2015. As a result, the consul booked a room at a hotel in Cairo under an assumed name and paid for a weekend stay for Dr. Haist and the daughter, while “avenues were being explored”. During this stay, the daughter did not attend visits with her father as mandated by the Egyptian court.

[12] According to the plaintiff, Dr. Haist and their daughter disappeared on 8 October 2015, when she was due for a scheduled visit with her father.

[13] Dr. Haist told the consulate that the plaintiff had custody of their daughter’s current passport and would not release it. She wanted assistance in obtaining a second passport for her. Passport Canada advised the Canadian embassy that it would not authorize the issuance of a new travel document absent a court document ordering the father to return the passport or authorizing the mother to obtain a new travel document without the father’s participation. While the exchanges have not been produced, it appears lengthy discussions then ensued between the consul and Passport Canada about their position. In addition to these discussions, in order to support the daughter’s application, the consul paid for and provided Passport Canada with translations of court documents. Passport Canada ultimately provided an interim passport for the daughter without requiring the plaintiff’s signature. It was known that the purpose of issuing the new passport was to assist the daughter in leaving Egypt. While the defendant knew that the daughter was listed on a travel ban and prohibited from leaving Egypt, the newly issued passport did not contain any restrictions on its use.

[14] Shortly after the defendant, unbeknownst to him, had issued his daughter a new passport, the plaintiff provided the Canadian Embassy with information about Dr. Haist and his daughter. In November 2015, he advised that his daughter had been missing for eight weeks, the issue of access was before the Egyptian court, the accusations of Dr. Haist concerning him were false and that there was a travel ban under Egyptian law preventing his daughter from travelling outside Egypt.

[15] That same month, the defendant wrote to Dr. Haist advising that the daughter’s passport was ready, that it had met with senior members of the Egyptian Foreign Ministry and the Ministry of Interior to discuss her case on a no-names basis and that they had offered their strong support. The consul advised that it stood “ready to support you at the police station, in court and during medical and other appointments as required.”

[16] The plaintiff’s lawyers wrote various Canadian government officials around this time noting, among other things, that their client was pleading that no action be taken to assist in his daughter’s abduction from Egypt in violation of the existing court orders. They also demanded information about the daughter’s whereabouts and the consular services she was being provided.

[17] In January 2016, the Canadian ambassador delivered a report to the Egyptian Ministry of Foreign Affairs detailing Dr. Haist’s allegations of sexual assault by the plaintiff, along with a statement from her lawyer detailing his unsuccessful attempts to file the report with the police. To that point, the police had refused to investigate on that basis that there was no evidence to support the allegations. The defendant delivered the materials with a diplomatic note and requested that it be considered in lieu of a police report so that the local authorities would investigate Dr. Haist’s allegations. The action was successful as the Ministry delivered the information to the Egyptian Prosecutor General’s office and the Egyptian Ministry of the Interior and a criminal investigation commenced. The plaintiff voluntarily met with the Egyptian officials to clear his name and no charges were laid.

[18] In response to the letters from the plaintiff’s lawyers, in May 2016, the defendant advised that it respected the jurisdiction of the Egyptian legal system, which was handling the custody and access dispute. In a follow up in June 2016 in response to the plaintiff’s inquiry about his daughter’s well-being, the defendant advised that it understood there were ongoing family law proceedings in Egypt and suggested to plaintiff’s counsel that he should pursue his family dispute through the “proper channels in the Egyptian legal system”.

[19] The plaintiff argues that the government’s representation to him that it would respect the jurisdiction of the Egyptian legal system was patently false. By then, the consul had been involved in hiding his daughter and paying for her accommodation, petitioning Egyptian ministers, and assisting in Dr. Haist’s complaints to the RCMP that were intended to bar the plaintiff from entering Canada, in addition to assisting with her false complaints to the Egyptian Minister and the London police.

[20] The plaintiff argues that this representation was further belied by the defendant’s involvement in assisting Dr. Haist to cross into Sudan with his daughter. In June 2016 authorities in Sudan advised the Canadian consulate in Egypt that Dr. Haist was attempting to cross into the country with her daughter without a visa. Canadian consular officials advised the Sudanese authorities that should Dr. Haist and her daughter request entry into Sudan, the Canadian consulate would provide consular services to assist them. Dr. Haist crossed into Sudan thereafter and then, on 24 June 2016, she and her daughter arrived in Canada.

[21] Canada denies that it assisted Dr. Haist and her daughter to arrange travel to Canada. The evidence on the motion in the form of a case note is that the Canadian consul met them at the Sudanese border “from which point the team at Global Affairs, under the leadership of Giuseppe Basile, ensured [Dr. Haist and her daughter] had a seamless journey” to Canada.

[22] On 6 July 2016 the plaintiff, through his lawyers, advised the defendant that an Egyptian court had ordered his daughter to be returned and to remain in the custody of the plaintiff’s mother. In response, the defendant stated that it could not mediate between family members and that its primary concern was for the well-being of Canadian children. It did not advise the plaintiff that his daughter had already arrived in Canada.

[23] Once in Ontario, Canadian officials suggested that Dr. Haist bring an application for custody, which she did. The court that ultimately heard the custody application found that Dr. Haist’s allegations of her daughter’s abuse were “a malicious contrivance” and ordered the daughter returned to Egypt. The applications judge ordered Dr. Haist to pay $100,000 to the plaintiff after finding she had “lied to consular authorities, to the police, to FACS [Family and Child Services] and to me”.

C. Argument

[24] As noted above, the plaintiff claims damages for intentional infliction of emotional distress, misfeasance of public office, conspiracy and breach of his section 7 Charter rights with an alternative claim in negligence.

[25] The defendant has not challenged the sufficiency of the plaintiff’s pleading. It argues, instead, that after a review of the evidence, the plaintiff has not raised any genuine issue that requires a trial and that the action should be dismissed in its entirety (Rule 20.04(2)). I note that, pursuant to Rule 20.04(2.1), I do not have the power on this motion to weigh the evidence, evaluate parties’ credibility or draw inferences from the evidence.

(i) Claim in Negligence

[26] The defendant argues that it cannot owe the plaintiff a duty of care necessary for any finding of negligence as there was no relationship of proximity between it and the plaintiff. It denies any representations or interactions that could give rise to such a duty.

[27] It argues that it does not owe a duty to provide consular services to Canadians, let alone the plaintiff, a foreign national. As such, he would have to succeed in establishing a new or novel duty of care owed to him.

[28] The plaintiff does not seek damages based on a failure to provide him with consular services. His claim is in negligence. He agrees that it cannot be based on any of the pleaded statutory schemes, agreements or orders, so must be based on his interactions with the defendant. As the defendant notes in its factum, “For there to be a prima facie duty on this basis [i.e. from specific interactions between Canada and the plaintiff], officials must have, through their conduct or representations, entered into a special relationship with the claimant. This could happen if, for example, officials made promises to the plaintiff or led the plaintiff to believe he could rely on Canada to look after his private interests.”

[29] The defendant relies on Khairy v. Canada (Minister of Foreign Affairs and International Trade) 2004 FC 1466, 2004 F.C. 1466 (“Khairy”) in support of its proposition that it can owe no duty of care to the plaintiff.

[30] In Khairy, the plaintiff father sued Canada alleging that the consular offices assisted in his ex-wife’s ultimately unsuccessful plan to abduct his daughter from the United Arab Emirates in contravention of UAE family court orders that guaranteed him access and that prohibited his ex-wife from travelling alone with their child. He also relied on the same Conventions and bilateral Agreements pleaded by the plaintiff in this action.

[31] I note that, unlike this case, Khairy was a pleadings motion. The court struck the plaintiff’s claim in negligence because he had not alleged the basis for any duty to him such as “an express or implied promise or representation made to him” or “a particular relationship with him, in the treatment of requests for assistance addressed to them by third parties – such as the Plaintiff’s ex-wife.” (see paragraph 24)

[32] While Khairy argued on the motion that there was a relationship of sufficient proximity between him and the Crown from the time the consul advised him that it would not get involved in family matters, particularly if there were custody issues, he had not pleaded those particulars or the requited elements of the tort of negligence in his statement of claim. The court recognized that “while the statement of claim alleges material facts that could give rise to a duty of care arising from the contacts between the Plaintiff and the Canadian Consul to the UAE, it is lacking in specifics as to the nature and extent of the duty, and, more to the point, it contains no material allegations of fact to support a finding of negligence or carelessness, even taking the facts alleged as being proven” (paragraph 29).

[33] The Khairy court recognized that the causes of action could stand if properly pleaded and granted leave to amend for the purpose of alleging the specific acts or steps taken by the Crown servants and any other material facts giving rise to a cause of action in negligence, misfeasance in public office, conspiracy and breach of section 7 of the Charter.

[34] The court noted, by way of example, that the claim did not set out what sort of assistance the consul offered or provided to his ex-wife. By contrast, and keeping in mind this is not a pleadings motions, the present statement of claim pleads, among other things, that the defendant:

(a) arranged for a clandestine hotel for the daughter in Cairo and knew that she would miss her court-ordered visitation with the plaintiff while hiding there;

(b) was preparing to launch a public media campaign against the plaintiff which, presumably would have included allegations that he abused his daughter;

(c) issued a temporary passport to the daughter knowing that it would be used to breach the travel ban and in violation of the requirement that both parents consent to any travel outside the country;

(d) filed a report with the Egyptian authorities on behalf of Dr. Haist containing the unfounded and incredible allegations of sexual assault against the plaintiff;

(e) worked with the Egyptian authorities to lift the no-fly order so that the daughter could come to Canada;

(f) offered to contact the RCMP on behalf of Dr. Haist so that they could liaise with the Canada Border Service Agency to place the plaintiff on an alert should he attempt to enter Canada; and

(g) it falsely reported to the Family and Children’s Services Niagara that it had information that the plaintiff was possibly going to abduct his daughter.

[35] It is pleaded and there is evidence in support of the allegation that the defendant knew there were ongoing custody proceedings. It knew there was an order that prohibited Dr. Haist from removing their daughter from the country. It knew that the plaintiff had visitation rights as a result of Egyptian court orders. It knew those rights would be violated when it arranged and paid for a hotel in Cairo in which Dr. Haist and the daughter hid.

[36] Further, while the defendant pleads that it only issued the temporary passport on the understanding that it would not be used until the travel ban was lifted, it is alleged and there is evidence filed on this motion that it knew that Dr. Haist and her daughter were at the Sudanese border and were crossing, presumably on the strength of the passport. It did not send a consular note that the crossing should not be permitted but instead sent a note that the Canadian consulate would provide services to the pair once they crossed.

[37] Given the allegations that Dr. Haist had made and the danger in which she said she and her daughter were placed, it is pleaded that the defendant knew or ought to have know that, if it bent the rules and granted the daughter a passport without the plaintiff’s knowledge or consent, Dr. Haist would use that passport to attempt to remove their daughter from Egypt in violation of the visitation order, the no-fly order and the order that neither parent remove the child from the country. What is pleaded that the defendant reasonably should have known, in fact happened.

[38] Further, there is evidence on this motion that the defendant made a specific representation to the plaintiff that it respected the jurisdiction of the Egyptian legal system. The defendant denies that this was a representation to the plaintiff but it should be open to him to argue that he understood this to mean Canada would let the Egyptian custody proceedings run their course without aiding his ex-wife in removing his daughter by booking a hotel for them in the name of a consular employee, providing the daughter with an extraordinary passport, and confirming to Sudan that it would provide them with full support once they crossed the border.

[39] Whether these representations are sufficient to create a relationship of proximity should be determined in the context of a trial. The defendant has not led any evidence that such a duty of care would lead to indeterminate liability. I find that this issue is also best determined after hearing from witnesses at trial.

(ii) The Role of the Conventions, Agreements and Egyptian Orders

[40] The defendant also relies on Khairy for its position that international conventions and agreements cannot create rights in favour of individuals or be enforced by them.

[41] In discussing the pleading, the court stated at paragraph 5:

The difficulty with the Plaintiff's statement of claim is that it provides no details of the actual steps and actions which the two officials took or agreed to take to assist the Plaintiff's ex-wife. There are no allegations that any of the actions taken, or proposed to be taken by consular or DFAIT officials were, in and of themselves, illegal, improper, negligent, unauthorized, or that they exceeded or abused their positions or powers. Indeed in the course of argument, the Plaintiff's counsel did not submit that the officials' actions or proposed actions were, of themselves, unlawful. Rather, the unlawfulness or illegality of the officials' actions appears to rest solely on the allegations that they were made or offered with the knowledge or intent of assisting an abduction, that this conduct flies in the face of Canada's international commitment to put an end to international child abductions and was of a nature to cause foreseeable harm to the Plaintiff.

[42] As to his claim based on breach of statutory duty, the court held that the Conventions and agreements could not create a statutory duty owed by Canada to Khairy. They create rights and obligations between states and are not enforceable by individuals. The court noted at paragraph 10:

The law as to the existence of a civil cause of action for breach of statutory duty has been clearly set out by the Supreme Court in Canada v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC), [1983] 1 S.C.R. 205: There is no nominate tort of statutory breach giving a right to recovery merely upon proof of breach and damages. Any civil consequence of a breach of statute is subsumed in the law of negligence. While the statutory formulation of a duty may afford a specific and useful standard of reasonable conduct, and while proof of statutory breach may be evidence of negligence, a common law duty of care together with a failure to take care or negligence must be alleged and proven. (emphasis added)

[43] While the plaintiff in this case had pleaded that the Conventions and agreements form the basis for a cause of action, he has conceded in his recent admission that this is not the case. As in Khairy, he now relies on the Conventions and agreements contextually, as “a specific and useful standard of reasonable conduct”. As set out by the court in Khairy, at paragraph 16:

That said, the conduct alleged may well be contrary to the spirit and intent of the policies adopted and promoted by Canada in adhering to these various international treaties and conventions. To that end, the treaties and conventions may provide guidance as to the standard of reasonable conduct to be expected of the consular officials in the context of an action in negligence, but the alleged “breaches” of treaties do not of themselves give rise to a cause of action.

(iii) Are the defendant’s actions protected in any event as constituting consular services?

[44] The defendant argues that it cannot be liable for the consular services it provided to Dr. Haist and the daughter as they were done as part of its prerogative powers. Any breach of a consular function is a matter to be resolved through diplomatic channels and cannot be enforced personally. For this proposition, the defendant relies on R. v. Bonadie, 1996 CanLII 17924 (ON CJ).

[45] In that case, a St. Vincent national in Canada on a temporary work programme was charged with a crime. Before facing trial, he fled back to St. Vincent, with the assistance of Bonadie, the consul for St. Vincent and the Grenadines in Canada. Bonadie was then charged with unlawfully attempting to obstruct justice by assisting the St. Vincent national to fail to appear in court.

[46] At trial, Bonadie established that his actions fell within the definition of consular services. As a result, the court held that he was entitled to consular immunity. I agree with the conclusion in Bonadie and with the submissions of the defendant that matters involving a consular service are to be resolved diplomatically, state to state.

[47] That being said, there is no agreement in the case before me on whether the services the defendant provided constitute consular services, such that they would be protected. This was also the case in Bonadie and was resolved after a trial that reviewed the actions taken by Bonadie in their factual matrix. In my view, it requires a fuller evidentiary record than the one before me to determine whether the scope of protected “consular assistance” is wide enough to cover:

(a) an ambassador’s delivery of a report with a request that it be considered in lieu of a police report and the allegations be criminally investigated.;

(b) the payment of a hotel and the secreting of the daughter there;

(c) the defendant’s offer of assistance to Dr. Haist and the daughter at the Egypt/Sudan border; and

(d) its failure to advise Sudan of its understanding that the daughter’s temporary passport was intended to be used only when the custody issue had been settled or, at least the travel ban lifted.

[48] Whether these actions qualify as protected consular services, should be determined on a fuller evidentiary record.

[49] The Global Affairs Consular Service Charter (the “Service Charter”) provides that a consulate cannot reimburse Canadians for hotel costs (which it paid for Dr. Haist and her daughter in Cairo for at least a weekend), cannot intervene in private legal matters, cannot intercede with foreign officials about immigration of Canadians (which it is alleged to have done in respect of Dr. Haist’s entry into Sudan and which the defendant denies), cannot solve immigration-related problems such as visa applications (which it allegedly did by paying for the translation of materials to support the daughter’s passport application, in evidence on this motion), cannot ask local authorities to give Canadians preferential treatment (which it is alleged to have done by forwarding Dr. Haist’s complaint to the Egyptian Ministry and asking that it be accepted in lieu of a police report so that the plaintiff could be investigated) and cannot take possession of a child abducted by a parent involved in a custody dispute. The plaintiff relies on the Service Charter to demonstrate that the defendant’s conduct fell outside the scope of consular services and it not protected.

[50] There is no evidence before me of the binding nature of the Service Charter. The plaintiff suggested that it was authoritative and the defendant stated that it was only an information pamphlet to advise travelling Canadians what they could expect by way of assistance from the defendant. While the defendant states in its reply factum that the Service Charter does not establish a “realm of accepted, consular conduct”, as alleged by the plaintiff, there is no evidence before me to support or counter that statement

[51] What it does say, according to the defendant, is that “each consular case is unique and the assistance we can provide will vary depending on the circumstances”. Assuming that to be so, that gives rise to a question about whether and why the defendant believed the assistance that it provided was both permitted and protected. It has not said so on this motion other than to attach consular case notes that generically indicate that the government acts in the best interests of Canadian children.

(iv) Misfeasance in Public Office

[52] The defendant argues that there can be no misfeasance in public office based on the alleged breaches of the Privacy Act R.S.C. 1985, c.P-21 or the Criminal Code R.S.C. 1985, c.C-46. The plaintiff argues that this interpretation of this tort is too narrow and that it covers “conduct specifically intended to injure a person when a public officer acts with knowledge both that he or she has no power to do the act complained of and that the act is likely to injure the plaintiff” (Odhavji Estate v Woodhouse 2003 SCC 69, 2003 S.C.C. 69).

[53] The court in Khairy determined, not that the plaintiff could not pursue the tort of misfeasance in public office, but that he had not properly pleaded the requisite elements of the cause of action. The court noted at paragraph 19, “As mentioned above, there is no allegation that the actions proposed or carried out were unauthorised or exceeded the officials’ powers. On the facts pleaded, the action cannot succeed on the basis of the tort of misfeasance in public office.” (emphasis added)

[54] The law clerk who swore the defendant’s affidavit in support of this motion was unable to speak to the issue of intent. The actors involved on behalf of the defendant have not provided evidence on this motion. There is no evidence of what they specifically knew or what their motivations were. There is no sworn evidence to confirm that they believed they were acting in the best interests of the daughter or, importantly, how they concluded, with or without some investigation, that removing her from her father was acting in her best interests.

[55] The defendant argues that the plaintiff must lead evidence that the defendant’s representatives acted knowing that their actions were unlawful and were done with the predominant purpose of harming him. It argues that it does not assist the plaintiff even if he demonstrates that the defendant’s actions breached the Service Charter (which it denies in any event), given the document does not have the force of law and any breach would not be considered to be unlawful. Similarly, he cannot rely on any Egyptian orders as Canada was not a party.

[56] The plaintiff has filed an affidavit and filed evidence in the record through the consul notes concerning the circumstances in which the defendant acted and the alleged lack of due diligence it undertook before acting. He relies on the Service Charter, the force of which will be determined at trial, for his position that the actions the government took were unlawful. Given this motion was brought before discoveries, I find that he has satisfactorily led all the trump he has. It would not be just to dismiss his claim or even the malfeasance in public office portion of it at this stage on the basis of his failure to prove the intent of the defendant.

[57] As to the plaintiff being the target of the harm, Canada relies on its consul notes that indicate that it was providing aid in order to stabilize the situation, while it looked for local solutions. The plaintiff has deposed that the defendant knew of the risk of harm to him if it interfered with his legal rights and he details the harm that befell him, discussed in paragraph 71, below.

[58] For the reasons set out above, I find that this cause of action cannot fairly be determined on a summary judgment motion.

(v) Intentional Infliction of Mental Distress and Conspiracy

[59] Even assuming the arguments concerning the negligence claim went Canada’s way, they do not address the plaintiff’s claims of intentional infliction of mental distress or conspiracy.

[60] The plaintiff filed an affidavit outlining the harm he suffered and has pleaded the specific acts of the defendant that caused that harm.

[61] The court in Khairy recognized that there could be a tort of conspiracy, however anomalous, but that the pleading must specifically allege what actions were taken pursuant to the alleged agreement between the conspirators (paragraph 33). Based on the consul notes that have been produced to date, the plaintiff alleges that each of the defendant’s employees and agents, who are named in the body of the pleading, in addition to Dr. Haist, were involved in the decisions to facilitate his daughter’s alleged abduction and subsequent removal from Egypt and her unlawful detention in Canada and he has outlined the specific steps they took, based on the consul notes.

[62] It would be inappropriate to dismiss this claim at this stage.

(vi) Section 7 of the Charter

[63] The plaintiff pleads that the defendant’s actions breached his section 7 rights, which guarantee that the government will not act in a manner that interferes with his life, liberty and security of the person, will not act to unlawfully or arbitrarily detain or imprison individuals and will not take actions that violate an individual’s equal protection and benefit of the law regardless of that individual’s race, nationality or ethnic origin, colour, religion, sex, age, or mental or physical disability.

[64] The defendant acknowledges that state action that causes severe psychological harm to an individual can engage section 7, but argues that the plaintiff has not established that the actions taken by the defendant reached that level of harm. Nor has he established that it was the defendant that caused the harm, as opposed to Dr. Haist.

[65] Khairy does not stand for the proposition that there can be no civil claim based on a section 7 breach. On that pleadings motion, the court noted that the assertion in the statement of claim that the plaintiff’s section 7 rights had been breached without more, such as an allegation of unlawfulness or negligence, was insufficient to form the basis of a cause of action (see paragraph 38). It granted leave to amend on this issue as well.

[66] I find a motion for summary judgment is not the proper vehicle to determine whether the plaintiff’s suffering, which he alleges is due to the actions of the government, transcends from “the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action” and therefore is not actionable, and reaches a level of “serious and profound impact” on his psychological integrity, which may be compensable. (see Blencoe v British Columbia (Human Rights Commission) 2000 SCC 44, 2000 S.C.C. 44 and New Brunswick (Minister of Health and Community Services) v. G(J) 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46).

[67] I note that the court in New Brunswick v G(J), on which the defendant relies, found that the removal of a child from the custody of a parent could rise to the level that engaged a parent’s section 7 rights. As the court noted, “the effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.” (New Brunswick v. G(J), supra at paragraph 60).

[68] The court went on to state: “I have little doubt that state removal of a child from parental custody pursuant to the state’s parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent. The parental interest in raising and caring for a child is, as La Forest J. held in B. (R.), supra, at paragraph 83, ‘an individual interest of fundamental importance in our society’.”

[69] The court noted this was particularly so where the alleged fitness of a parent was the reason for the request for removal of the child. As might be argued in this case, with an order for removal comes stigmatization that the parent is unfit and, as an individual’s status as a parent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly serious consequence (New Brunswick v G(J), supra at paragraph 61).

[70] The New Brunswick v G(J) court made its determination on the level of suffering caused to a parent by the removal of a child after a three day hearing on the issue in which it made it clear that the seriousness of the harm was fact driven.

[71] The plaintiff’s evidence on which he was not cross-examined, is that he was nearly destroyed when his daughter was taken and he was unable to speak to her or see her and, in fact, did not know where she was or how she was. He was gravely concerned for her well-being. Although he succeeded in having his daughter returned to him, he continues to cope with the emotional trauma that he experienced as a result of her abduction.

D. Conclusion

[72] For the reasons stated above, I find the plaintiff has raised genuine issues that cannot be determined on a motion such as this and that require a trial. The motion is dismissed.

[73] Both parties have filed costs submissions. They will each have 20 days from the date of this decision to provide written costs submissions not to exceed five pages. Submissions should be delivered by email to my assistant trial co-ordinator, Ms. Meditskos.

Associate Justice Jolley

Date: 18 January 2022