COURT FILE NO.: CV-18-604334-0000

DATE: 20221026

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MOHAMED ABDEL-MOTTALEB

Respondent/Plaintiff

– and –

THE MINISTER OF GLOBAL AFFAIRS and ATTORNEY GENERAL OF CANADA

Appellants/Defendants

Scott Hutchison, Jennifer Brevorka, Meghan Pearson, for the Respondent/Plaintiff

Jacqueline Dais-Visca for the Appellants/Defendants

HEARD: MARCH 31, 2022

VELLA J.

REASONS FOR DECISION

[1] This matter is brought by way of an appeal by the Minister of Global Affairs and the Attorney General of Canada (the “AGC”) from an order of Jolley A.J. dismissing its motion for summary judgment (2022 ONSC 404).

[2] However, this appeal is really about whether this court has subject matter jurisdiction over the action, pursuant to s. 21(1) of the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 (the “CLPA”).

[3] The AGC seeks an order declaring the Order of Jolley A.J. dated January 18, 2022 null and void, along with dismissal of the action, on the basis that this court lacks subject matter jurisdiction under s. 21(1) of the CLPA.

[4] The rules invoked by the AGC are rr. 21.01(3)(a), 57.05(4), 62.01 and 63.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The AGC also relies on ss. 11(2) and 17(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”).

[5] This case is about Canada’s alleged role in actively facilitating the removal of Dr. Abdel-Mottaleb’s daughter by his ex-wife to Canada. Dr. Abdel-Mottaleb is a citizen of Egypt and resides in Egypt. Dr. Abdel-Mottaleb’s ex-wife, Dr. Haist, is a Canadian citizen. Their daughter, who is a minor, is a dual Canadian and Egyptian citizen.

[6] The Amended Statement of Claim (the “ASOC”) pleads factual allegations that directly implicates Canadian officials in Ottawa in what was ultimately the successful illegal, if temporary, removal of Dr. Abdel-Mottaleb’s daughter from Egypt and admission into Ontario.

[7] The ASOC also pleads factual allegations that directly implicates improper actions by Canadian consulate staff, including the ambassador, in Egypt and Sudan that, in combination with the conduct by Canadian officials in Ottawa, were necessary to facilitate this removal of Dr. Haist and Dr. Abdel-Mottaleb’s daughter from Egypt to Ontario.

[8] In addition, the ASOC also pleads that Canada’s refusal to disclose certain information to Dr. Abdel-Mottaleb violated certain provisions of the federal Privacy Act, R.S.C., 1985, c. P-21, and requests relief under the Canadian Charter of Rights and Freedoms.

[9] Each of the causes of action plead conduct committed jointly and severally by Canadian employees and agents located in Ottawa (Global Affairs Canada and Passport Canada) and in Egypt and Sudan (the ambassador to Egypt, and the consulate staff in Egypt and Sudan).

DISPOSITION

[10] For the reasons that follow, I find that the affirmative and interventionist exercise of Ottawa-conferred authority directing consular staff in Egypt, the direct actions taken by Global Affairs officials in Ottawa, and the issuance of the temporary passport to Dr. Abdel-Mottaleb’s daughter by Passport Canada in Ottawa, satisfies the criteria that vests statutory concurrent subject matter jurisdiction in this court and the Federal Court under s. 21(1) of the CLPA. Without the exercise of this authority and the issuance of the temporary passport, the consular staff on the ground in Egypt and Sudan would not have had the power to facilitate the removal of the daughter from Egypt and her subsequent admission into Canada.

[11] Accordingly, this court has subject matter jurisdiction over this claim, under s. 21(1) of the CLPA, and the appeal is dismissed.

ISSUES

(a) Preliminary Issue – whether this court has jurisdiction to resolve the issue of subject matter/statutory jurisdiction, considering it has been raised for the first time by the AGC on this appeal of Jolley A.J.’s order dismissing its motion for summary judgment.

(b) Primary Issue – whether the facts of this claim as pleaded and supplemented by the affidavit evidence gives rise to a good arguable case that the claim arises in Ontario so as to determine whether this court has subject matter jurisdiction pursuant to s. 21(1) of the CLPA.

[12] The primary issue to resolve is whether or not the facts underpinning this claim establish that the claim arises in Ontario or, as the AGC submits, in Egypt and Sudan. This determination will focus on whether the causes of action are driven by the conduct of the consulate staff in Egypt, or the conduct of Canadian officials in Ottawa, or in a combination of the two sets of actions.

Preliminary issue – Jurisdiction to resolve an issue raised for the first time on Appeal

[13] By way of preliminary issue, the respondent, Dr. Abdel-Mottaleb, raises this court’s jurisdiction to resolve the issue of subject matter/statutory jurisdiction as it is raised for the first time by the AGC by way of this appeal.

[14] This matter is effectively brought by way of a motion under r. 21.01(3)(a) within the context of an appellate proceeding, notwithstanding the lack of a formal notice of motion having been filed.

[15] While the manner in which the Attorney General brought the jurisdiction challenge may be “procedurally confused”, to quote Dr. Abdel-Mottaleb’s factum, nonetheless, the matter is properly before me, and was fully argued as a challenge to this court’s jurisdiction under the CLPA.

[16] I do not agree with Dr. Abdel-Mottaleb’s submission that Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, stands for the proposition that jurisdiction challenges may only be raised for the first time in an appeal where the underlying decision constituted a final disposition of the proceeding on the merits. Rather, the rationale underlying this court’s jurisdiction to hear this challenge raised for the first time on appeal is because if the Attorney General is correct, and this court lacks subject matter jurisdiction, then the underlying order of Jolley A.J. is a nullity. Neither the court, nor the parties, can vest the court with jurisdiction it does not have and in this case, for constitutional reasons, this court only has limited statutory jurisdiction to hear claims against the federal Crown. If the statutory criteria set out in s. 21(1) of the CLPA are not satisfied, it is not a question of whether this court ought to assume jurisdiction (as urged by Dr. Abdel-Mottaleb). This is because there is no inherent jurisdiction in this court to hear claims against the federal Crown.

[17] Furthermore, in W. (V.) v. S. (D.), 1996 CanLII 192 (SCC), [1996] 2 S.C.R. 108, at para. 17, a case relied upon in Kaiman, at para. 9, the Supreme Court of Canada does not restrict the court’s ability to entertain a challenge to its jurisdiction on appeal (for the first time) to only a trial or a final determination on the merits. Rather, the Supreme Court reminds us that a judge of the superior court or court of appeal has the obligation to raise jurisdiction on its own motion if necessary if there is a serious question as to the presiding court’s jurisdiction to hear the matter before it.

[18] Under s. 134 of the CJA, I have broad jurisdiction to make any order or decision that is considered just. I am also guided by r. 1.04 which directs that the rules must be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”.

[19] I am satisfied that I have jurisdiction to hear and resolve this issue notwithstanding that it is raised for the first time on this appeal (W. (V.), at para. 17).

[20] While the AGC invoked the jurisdiction of this court to seek an order for security for costs and an unsuccessful motion seeking summary judgment, I do not agree that the argument of voluntary attornment applies in this situation for the reasons stated; namely, that this court does not have inherent jurisdiction and the common law of voluntary attornment does not apply.

ANALYSIS

Rule 21.01(3)(a)

[21] The Attorney General brings this appeal under r. 62.01 and asks the court to dismiss the action under r. 21.01(3)(a) which provides that a defendant may move before a judge to have the action stayed or dismissed on the ground that the court has no jurisdiction over the subject matter of the action.

[22] Under this subrule, evidence is admissible. Also, the facts pleaded in the ASOC are deemed to be true (Fabrikant v. A.G. Canada, 2020 ONSC 7799, at paras. 6, 12).

[23] The parties were unable to locate any reported decision that sets out the evidentiary threshold a responding party must meet to resist a subject matter jurisdiction motion under s. 21(1) of the CLPA. Dr. Abdel-Mottaleb relied on Fabrikant, at para. 6, for the proposition that he need only demonstrate that it is not “plain and obvious” that the action must fail. This is the standard that is applied to motions under rr. 21.01(1)(a) and (b).

[24] Dr. Abdel-Mottaleb also relied on Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224, at para. 12, for the proposition that for jurisdiction simpliciter challenges brought under r. 21.01(3)(a) the responding party need only satisfy that it has a “good arguable case”. This standard preserves the fact-finding role of the trial judge and reflects that fact that this type of jurisdiction challenge is fact driven.

[25] In my view, there is an analogy between subject matter jurisdiction challenges under s. 21(1) of the CLPA and jurisdiction simpliciter challenges for purposes of assessing the tenability of the claim under a r. 21.01(3)(a) lens. This is because both are fact driven analyses warranting a low evidentiary threshold at this “early” stage of the proceeding. This standard preserves the fact-finding role of the trial judge.

[26] Accordingly, Dr. Abdel-Mottaleb must demonstrate that there is a good arguable case that this court has subject matter jurisdiction under s. 21(1) of the CLPA.

[27] No affidavit was filed by the AGC. The AGC relies on the facts as plead, and what it described as the findings of fact made by Jolley A.J. While Jolley A.J. did not make any binding findings of fact in the course of dismissing the AGC’s motion for summary judgment, Jolley A.J. found that there was sufficient evidence supporting Dr. Abdel-Mottaleb’s claims to raise genuine issues for trial.

[28] An affidavit was submitted on behalf of Dr. Abdel-Mottaleb

[29] Dr. Abdel-Mottaleb’s counsel also submitted that by bringing this matter by way of an appeal, the AGC seeks to avoid the application of r. 21.02 which requires a r. 21.01 motion to be made “promptly” at risk of cost consequences. I disagree. As I have found, this matter has effectively been brought by way of a motion under r. 21.01(3)(a) within the context of this appeal, and I will treat this challenge to jurisdiction accordingly.

Statutory Jurisdiction under s. 21(1) of the CLPA

[30] There is no doubt that this court’s jurisdiction over claims made against the federal Crown is statute based (Rudolph Wolff & Co. v. Canada, 1990 CanLII 139 (SCC), [1990] 1 S.C.R. 695, at p. 697). Approximately two years after the decision in Rudolph Wolff was released, the CLPA was proclaimed into force. For the first time, provincial superior courts were vested with a limited jurisdiction to hear certain claims against the federal Crown. This jurisdiction is concurrent with the Federal Court of Canada, thus vesting a discretion in parties to determine which court they wish to bring their claim providing it satisfies the statutory condition for concurrent jurisdiction. Section 21(1) provides:

(1) In all cases where a claim is made against the Crown, except where the Federal Court has exclusive jurisdiction with respect to it, the superior court of the province in which the claim arises has concurrent jurisdiction with respect to the subject-matter of the claim.

[31] As is evident on the face of this section, a provincial superior court can only hear claims which arise in its own province, subject to claims which are under the exclusive jurisdiction of the Federal Court.

[32] One purpose of s. 21(1) was to eliminate or reduce a multiplicity of proceedings arising out of the same facts where a plaintiff might otherwise be required to start a lawsuit against the federal Crown before the Federal Court, and a lawsuit against other defendants before a provincial superior court. The other purpose is to facilitate access to justice (Babington-Browne v. Canada (Attorney General), 2016 ONCA 549, 132 O.R. (3d) 690, at para. 14).

[33] The Court of Appeal in Babington-Browne, referencing its decision in David S. Laflamme Construction Inc. v. Canada (Attorney General), 2014 ONCA 775, 34 C.L.R. (4th) 187, at para. 7, set out the test for determining whether the asserted claims have arisen in the province. The court is “to examine the facts surrounding the claim in light of the elements of the alleged cause of action in order to decide where the substance of the claim arose” (Babington-Browne, at para. 22, citing David S. Laflamme, at para. 7).

[34] In Babington-Browne, the court affirmed that, because this court’s jurisdiction is based in statute and is not based in inherent jurisdiction, the common law jurisdiction simpliciter test set out in Van Breda v. Village Resorts Ltd., 2012 SCC 17, [2012] 1 S.C.R. 572, does not apply (see paras. 18-19).

[35] The only presumptive connecting factor from Van Breda’s substantial connection test that “parallels” s. 21(1) of the CLPA is whether the tort was committed in the province. This is the sole criterion that vests concurrent jurisdiction in a provincial superior court under this statutory provision (Babington-Browne, at para. 20).

[36] Furthermore, it is not necessary for all of the facts plead to have occurred in Ontario in order to find that the claim arose in Ontario. That said, the mere pleading of some facts having occurred in Ontario will be insufficient if, in substance, the claim occurred in another jurisdiction (Rowe v. Canada (Attorney General), 2004 CanLII 18898 (ON CA), 186 O.A.C. 106, at para. 7).

Do the claims, as plead in the Amended Statement of Claim, arise in Ontario?

[37] In describing the test for determining whether the pleaded cause of action arose in the province, the courts have variously described the test as whether the “substance” of the claim arose in the province, or where the “bulk” of the facts occurred. To paraphrase Babington-Browne, at para. 23, one has to look at where the main acts of the underlying causes of action occurred.

[38] In Babington-Browne, the Court of Appeal, affirming the motion judge’s determination that Ontario lacked jurisdiction under s. 21(1) of the CLPA in that case, agreed that the majority of the alleged negligent acts that led to the tragic death of a British soldier on a Canadian directed mission to Afghanistan caused when the Canadian Force’s helicopter crashed, occurred in Afghanistan, including the location of the fatal accident. The fact that a minority of alleged negligent acts plead against the federal Crown occurred in Ontario was outweighed by the location of the majority of the pleaded negligent acts which was where the substance of the claim occurred.

[39] The causes of action plead in the ASOC are:

(a) the intentional infliction of emotional distress;

(b) misfeasance of public office;

(c) conspiracy to harm the plaintiff;

(d) breach of the plaintiff’s rights under s. 7 of the Charter of Rights and Freedoms, pursuant to s. 24(a) of the Charter; and

(e) in the alternative, negligence with respect to the alleged involvement of Attorney General, and its employees and agents, in the disappearance of the plaintiff’s daughter and withholding information about her safety, location and unlawful removal from Egypt and/or Sudan to Canada.

[40] The Attorney General also submits that the plaintiff is claiming that there was a breach of the Privacy Act, and that this is a matter within the exclusive jurisdiction of the Federal Court. However, the ASOC does not plead a remedy in relation to breach of the Privacy Act. Rather, it raises the Privacy Act in support of some of its other causes of action.

[41] The ASOC pleads that various federal officials, employees and agents are the actors for various of the constituent elements of the causes of action. Some of these actors are the ambassador and consulate staff based in Egypt, and others are officials in the Ministry of Foreign Affairs and Passport Canada (including the then Minster of Foreign Affairs (Global Affairs) who were located in Ottawa at the time the alleged acts were committed. The ASOC names a number of (non-exhaustive) employees and agents – again some were based in Ottawa and others in Egypt and/or Sudan at the time of the alleged acts. More specifically, named Global Affairs staff were based in Ottawa, while Canadian embassy staff were based in Egypt and Sudan.

[42] The ASOC alleges that Dr. Abdel-Mottaleb and Dr. Haist were involved in a “bitter custody and access dispute” concerning their daughter. It further alleges that Dr. Haist requested assistance from the Canadian government to help her to bring their daughter to Canada, amidst allegations of sexual misconduct concerning Dr. Abdel-Mottaleb and their daughter.

[43] The ASOC further alleges that with the active assistance of the Canadian government, including consular services provided in Egypt and the active involvement of officials in Ottawa, Dr. Haist illegally removed their daughter from Egypt to Canada (Ontario), in breach of an existing order and travel ban issued by a competent court in Egypt.

[44] The ASOC pleads at para. 30 that Ramsay J., of the Superior Court of Ontario, released his decision on January 27, 2017, finding, inter alia, that the daughter had been improperly removed from Egypt, Egypt was the proper jurisdiction in which to resolve any outstanding custody and access disputes, the allegations of sexual and other misconduct against Dr. Abdel-Mottaleb were fabricated, and Ms. Haist was a “remorseless and persistent liar”.

[45] Other facts of note alleged in the ASOC include:

(f) In July 2015, Dr. Haist contacted the Canadian consulate in Egypt for help in relation to the since debunked allegations of sexual misconduct levied against Dr. Abdel-Mottaleb against their daughter. The consulate staff found a doctor for their daughter.

(g) In October 2015, the Canadian consul booked a room in a Cairo hotel under an assumed name for Dr. Haist and their daughter and paid for a weekend stay while “avenues were being explored” and to facilitate a meeting with Canada’s ambassador to Egypt. During this stay the daughter did not go on court mandated visits with Dr. Abdel-Mottaleb. Global Affairs’ officials in Ottawa knew the embassy was incurring this expense, and knew that this arrangement resulted in a breach of the Egyptian court order mandating scheduled visits between Dr. Abdel-Mottaleb and his daughter.

(h) Canadian officials in Ottawa from Global Affairs lobbied Passport Canada, in Ottawa, to issue the daughter a new Canadian passport because Dr. Abdel-Mottaleb held her passport. Passport Canada initially denied the request citing the fact that the father’s consent was required. However, Global Affairs officials in Ottawa continued to lobby Passport Canada officials despite this prohibition.

(i) In November 2015, at the persistent request of Global Affairs Canada, Passport Canada issued a temporary passport for the daughter, valid for one year, and without the consent or knowledge of her father. This passport was used to facilitate Dr. Haist’s illegal removal of their daughter from Egypt;

(j) The then Minister of Foreign Affairs confirmed that his office knew about the exceptional issuance of the passport and that members of his office were working to have Egyptian authorities lift the no-fly order that the Egyptian courts had issued in relation to the daughter;

(k) In June 2016, when Dr. Haist attempted to cross the border from Egypt to Sudan with the daughter, Sudanese border officials stopped them. The deputy director of the Canadian Family Unit at Global Affairs in Ottawa directed embassy staff in Sudan to contact Sudanese border officers and state that Canada would provide consular services to help Dr. Haist cross the border into Sudan. This action (combined with the new passport) allowed Dr. Haist to remove their daughter into Sudan, and from there Canadian officials from Ottawa ensured that Dr. Haist and her daughter were able to travel to Canada where they landed in Ontario in or around June 24, 2016 and resided here until this court ordered the daughter’s return to Egypt. When Canada assisted Dr. Haist, it was aware of the Egyptian court orders that would be violated.

(l) Throughout this ordeal, Dr. Abdel-Mottaleb had no idea where his daughter was. Amongst other actions, he retained lawyers in Ontario who wrote to Canadian Officials at Global Affairs Canada setting out the court custody battle history in Egypt, and seeking information about the daughter. This was all to no avail until, nearly one year after the daughter’s disappearance, Dr. Haist commenced family law proceedings in Welland, Ontario. Dr. Abdel-Mottaleb received notice of these proceedings and fully participated, resulting in the determination that the Egyptian courts had jurisdiction, Dr. Haist had mislead the court and lied about the sexual misconduct allegations, and returning the daughter to Dr. Abdel-Mottaleb and Egypt.

(m) In the course of correspondence between Parliamentary Secretary of the Minister of Global Affairs (Consular Affairs) to Dr. Abdel-Mottaleb’s lawyer in Ontario, the Parliamentary Secretary did not advise of Canada’s role in facilitating the daughter’s removal from Egypt, instead stating that Canada “respects the jurisdiction of the Egyptian legal system”.

[46] The daughter was ultimately taken to Ontario from Egypt.

[47] The damages are largely alleged to have been sustained in Egypt. However, the ASOC also pleads that some non-pecuniary damages were sustained by Dr. Abdel-Mottaleb in Ontario by way of mental distress, and pecuniary damages were realized when he hired a lawyer in Ontario to lobby Canada for information about his daughter while litigating the custody dispute in Ontario, and to respond to false allegations by Global Affairs made during an Ontario Family and Child Services investigation into the (ultimately baseless) allegations of sexual misconduct against Dr. Abdel-Mottaleb.

[48] The Attorney General states that the only link to Ontario is the fact that the consular staff based in Egypt were “merely” supervised by officials in Ottawa. This is not enough to ground the action in Ontario. If it were, then the mere supervision emanating from Ottawa would mean that every action involving consular staff outside of Canada would meet the requisite test under s. 21(1) of the CLPA making that conferral of territorially limited concurrent jurisdiction in the provinces meaningless.

[49] Furthermore, the Attorney General focusses on the written communications between the plaintiff’s lawyers and officials in Ottawa throughout the course of the daughter’s disappearance, and characterizes this correspondence as a narrative only, and not material to the causes of action themselves.

[50] The Attorney General’s position focusses on the fact that the “on the ground” conduct that infuses the causes of action is the conduct that occurred in Egypt and Sudan – not Ontario. All of the physical actions perpetrated by Canadian officials and employees that resulted in the daughter’s illicit removal from Egypt occurred in Egypt and, to a lesser degree, in Sudan.

[51] Therefore, according to the Attorney General, once the daughter was transported to Ontario, the alleged tortious and other actionable conduct had already occurred.

[52] Furthermore, the damages alleged to have been suffered by Dr. Abdel-Mottaleb, both non-pecuniary and pecuniary, occurred in Egypt where Dr. Abdel-Mottaleb suffered not knowing where his daughter was and where Dr. Abdel-Mottaleb’s business interests suffered economically.

[53] However, in my view, the claim pleads facts that go far beyond the “mere” proforma supervision and chain of command arguments raised by the AGC. The claim specifically pleads that the officials in Ottawa pro-actively intervened in this case and directed certain actions to occur that, in turn, facilitated the departure of the child of Dr. Abdel-Mottaleb to vacate Egypt with her mother contrary to Egyptian law and orders of that court that forbade the daughter’s departure from Egypt without her father’s consent.

[54] Furthermore, without the specific direction and authority conferred by officials in Ottawa, the consulate staff and ambassador would have been powerless to have carried out the physical acts alleged to have occurred in Egypt and Sudan.

[55] For example, and most compellingly, the officials in Ottawa convinced Passport Canada to issue a temporary passport to the daughter that then allowed Dr. Haist to take her across the border in Egypt and ultimately transport her to Canada, where they resided in Ontario pending the court’s disposition of the family proceeding launched by Dr. Haist. Without that essential affirmative action which occurred in Ottawa, none of the other actions by the consular staff, including the Canadian ambassador, in Egypt and Sudan would have been sufficient on their own to allow the mother to illicitly transport their child through Sudan to Canada in violation of Egyptian orders and a travel ban issued by an Egyptian court preventing a unilateral removal of the daughter from Egypt without Dr. Abdel-Mottaleb’s consent.

[56] The substance of the claims are based jointly in actions in Ontario comprised of Ottawa conferred authority and Ottawa directed action which was then carried out by embassy staff in Egypt and Sudan on the ground.

[57] As stated, most of the damages alleged were suffered in Egypt, but some damages are alleged to have occurred in Ontario (ASOC, paragraphs 63-91).

[58] Furthermore, the ASOC pleads other proactive actions by officials in Ottawa which, in combination with the “on the ground” actions by consular staff in Egypt and Sudan, resulted in the daughter’s removal from Egypt and ultimate arrival in Ontario, as above reviewed. See, for example, paragraphs 18, 19-20, 21-24, 50, 51, 54, 56-59, 61, and 62 of the ASOC.

[59] At paras. 63-87 of the ASOC, the constituent elements of the claims are plead. Particulars of the damages claim are found at paragraphs 88-91. These paragraphs illustrate that Dr. Abdel-Mottaleb is relying on a combination of actions by Canada as directed and carried out by Global Affairs in Ottawa, Passport Canada in Ottawa, and the Canadian embassy in Egypt (and to a lesser degree in Sudan). The bulk of the damages are alleged to have occurred in Egypt, with some special damages and non-pecuniary damages allegedly incurred in Ontario.

[60] Most of the acts which occurred in Ontario can be fairly characterized as being in the nature of the proactive exercise of official power and authority by officials in Ottawa targeted against the interests of Dr. Abdel-Mottaleb. The acts which occurred in Egypt and Sudan can be fairly characterized as the carrying out of that direction on the ground. The combination of the two territorially based sets of actions were necessary and are essential elements of the various pleaded claims.

[61] However, the tipping point in this balancing exercise is, in my view, the issuance of the temporary passport in Canada at the behest of Global Affairs in Ottawa. This is because without the issuance of the temporary Canadian passport, the consulate staff on the ground would have been powerless to facilitate the removal of the daughter from Egypt and Sudan to Canada. The consulate staff had nothing to do with the issuance of the temporary passport. This key act was done wholly in Ontario, through the direct intervention of Global Affairs in Ottawa with the officials at Passport Canada in Ontario. It was done to facilitate an end that was knowingly in breach of valid orders issued by an Egyptian court. This key fact, in constellation with the other plead facts, lead to a characterization of the substance of the claims having arisen in Ontario.

[62] The Attorney General also submitted that the ASOC raises violations of the Privacy Act and that the Federal Court has exclusive jurisdiction over any disputes arising from that statute thereby depriving this court of jurisdiction. However, in my view, the Attorney General overstates this plea. As stated, the ASOC challenges the withholding of certain information under the provisions of the Privacy Act in support of the plaintiff’s claims, including as evidence of negligence and as part of the narrative. This court is competent to interpret and apply the provisions of the Privacy Act, as any other statute, in the course of making its determinations regarding the pleaded causes of action. I do not agree that the raising of violations of the Privacy Act amounts to relief being sought against a federal tribunal under s. 18.1 of the Federal Courts Act. There is no such ground of relief requested in the ASOC against this tribunal.

[63] This is a close call, given the necessity of the two sets of territorially based conduct working in concert, according to the ASOC, to commit the alleged misconduct and alleged resulting harm to Dr. Abdel-Mottaleb. There are significant facts alleged to have occurred in Ottawa and in Egypt and Sudan.

[64] The amendment to the CLPA in the form of s. 21(1) is, in my view, intended to deal with exactly this sort of situation in which key constituent elements of the various causes of action occurred both in the province and outside of the province in which the claim is brought. Parliament resolved this issue by vesting concurrent jurisdiction in the Federal Court and the provincial superior court so as to eliminate a multiplicity of proceedings and facilitate access to justice. Further, while not relevant to my jurisdiction analysis, it has not escaped the court’s attention that Canada engaged this court’s jurisdiction to seek security for costs against Dr. Abdel-Mottaleb and then to unsuccessfully seek to have the matter dismissed under r. 20, before turning its mind to the issue of a possible jurisdiction attack.

[65] The bulk of the alleged acts pleaded, including the issuance of the temporary passport as the lynchpin of this executed plan to remove Dr. Abdel-Mottaleb’s daughter from Egypt to Ontario in violation of legitimate Egyptian Orders, occurred in Ontario. The substance of the claims asserted occurred in Ontario. Accordingly, there is a good arguable case that the causes of action plead arose in Ontario.

[66] Dr. Abdel-Mottaleb invited the court to make a final determination with respect to jurisdiction. Jurisdiction is a question of law, and Dr. Abdel-Mottaleb submitted that there was a fulsome evidentiary record before the court. However, in my view, a final determination of jurisdiction in this matter requires findings of fact that should not be made at this time. Dr. Abdel-Mottaleb must still ultimately prove his factual allegations at trial. I decline to make any such final determination.

[67] Therefore, there is a good arguable case that this court has concurrent jurisdiction with the Federal Court to hear this action pursuant to s. 21(1) of the CLPA. The appeal is dismissed.

[68] Dr. Abdel-Mottaleb seeks leave to further amend the ASOC. However, I was not provided with the proposed drafted further amended statement of claim. Accordingly, my order is made without prejudice to Dr. Abdel-Mottaleb’s right to seek leave to further amend his amended statement of claim.

COSTS

[69] If the parties cannot agree on costs, then Dr. Abdel-Mottaleb will have 10 days from the release of this decision to provide his written submissions and cost outline. The Attorney General shall have 10 days thereafter to provide its responding written submissions (the costs outline has been uploaded to CaseLines). These submissions shall not exceed five double-spaced pages each. Dr. Abdel-Mottaleb may then deliver a brief reply submission, if necessary, not to exceed two double-spaced pages within five days after receipt of the responding submissions.

Justice S. Vella

Released: October 26, 2022