Court File and Parties

Court File No.: CV-10-402443 Date: 2023-10-26 Superior Court of Justice – Ontario

Re: Hassan Almrei, Plaintiff – and – The Attorney General of Canada, Marc Towaij, John Doe and Jane Doe, Defendants

Before: Justice E.M. Morgan

Counsel: M. Philip Tunley, for the Plaintiff Marianne Zoric, Chris Ezrin, and Marina Stefanovic, for the Defendants

Heard: October 17, 2023

Motion to Amend

[1] The Plaintiff seeks to amend the Statement of Claim dated May 6, 2010 (the “Original SoC”). The Defendants say that too much time has passed and they will suffer prejudice as a result of this late amendment. They also argue that certain of the proposed amendments insert a claim that is not recognizable at law.

[2] The Defendants have filed a Statement of Defence dated June 7, 2010. The Original SoC has never been amended since its issuance some 13 years ago.

Background

[3] In the Original SoC, the Plaintiff claims damages for breach of the Charter and for related torts arising out of his wrongful detention and incarceration by agencies, officials and servants of the government of Canada. The Plaintiff is a Muslim who was born in Syria. Shortly after the attacks of September 11, 2001, he was misidentified as a terrorist associated with Osama Bin Laden and Al Qaeda.

[4] As a result of his having been wrongly identified as a terrorist, the Plaintiff was arrested and held in custody, without charges or any legal process to which to respond, for 8 years. His incarceration was formally authorized under security certificates issued under ss. 34-37 and related provisions of the Immigration and Refugee Protection Act, S.O. 2001, c. 27 (“IRPA”) and successor legislation, which identified him as a threat to the security of Canada.

[5] The Original SoC sets out that the security certificates in issue were based on an investigation by the Canadian Security and Intelligence Service (“CSIS”) with assistance from the Royal Canadian Mounted Police (“RCMP”). The facts supporting the issuance of the security certificates were not disclosed to the Plaintiff at the time of his incarceration pursuant thereto.

[6] On December 14, 2009, the Federal Court of Canada issued an Order quashing the last of the security certificates against the Plaintiff. In that proceeding, Justice Mosley issued public reasons for decision in which he found that the issuance of the certificates by the Defendants had been unreasonable. In June 2021, an additional set of reasons – Justice Mosley’s “private” reasons for decision as they have been called here – were finally produced to the Plaintiff for the first time, albeit in redacted form.

[7] On February 17, 2022, Plaintiff’s counsel sent to Defendants’ counsel a copy of the proposed revised pleading at issue here. A copy of the Amended Statement of Claim for which leave to amend is now sought is found at Schedule ‘A’ of the Notice of Motion (the “Amended SoC”). A number of editorial and substantive amendments have been proposed in that new pleading.

[8] In response, the Defendants have raised objections to two aspects of the Amended SoC which counsel have been unable to resolve. The Defendants have expressed no concerns about any of the other editorial changes found in the Amended SoC.

[9] The first set of the disputed amendments relates to the addition of a claim, or a new theory of liability, alleging breach of the Plaintiff’s equality rights under section 15 of the Charter. These are found in paragraphs 1(i), 131(iii), 189A, 189B, 203, and the new heading before paragraph 189A, of the Amended SoC.

[10] The second set of disputed amendments relates to the addition of references to Department of Justice (“DOJ”) employees as impugned actors in the claim. These references are found in paragraphs 16 and 135A of the Amended SoC.

[11] Plaintiff’s counsel makes the point that the Original SoC is very detailed in the facts that it alleges. It goes on for some 50 pages in length. It also incorporates by reference the findings made by Justice Mosley. The public version of those reasons go on for 150 pages and the private version, more recently revealed, add another 150 pages. When one tallies it all up, the sheer quantity of material facts pleaded is extraordinarily large.

[12] As a result, the amendments are mostly – but, as will be seen, not exclusively – premised on or composed of material facts already pleaded. Plaintiff’s counsel characterizes the amendments as reconfigurations of matters already contained in the Original SoC, or new legal theories based on facts already pleaded.

[13] Defendants’ counsel characterizes the Amended SoC as containing significant new factual assertions and allegations. It is their view that it is too late in the day for such far-reaching factual amendments to be introduced. They submit that the two areas of disputed amendments, if allowed, would require them, in response, to do new investigations searching for new and potentially no longer available factual evidence.

The section 15 issue

[14] Paragraphs 131(iii), 189A and 189B of the Amended SoC contain the substantive elements of the section 15 claim. Plaintiff’s counsel has made efforts to ensure that the particulars of the facts relied on in relation to the section 15 allegation are those already included in paragraphs 38, 40-43, 53 and 71 of the Original SoC and in the findings made by Justice Mosley in identified paragraphs of both his public and private Reasons.

[15] Defendants’ counsel submit that the limitation period has expired on a new cause of action such as the section 15 claim. They also argue that they are prejudiced by the lengthy passage of time. They will now have to re-create the conditions of the Plaintiff’s years of incarceration in order to find comparator groups and, potentially, section 1 evidence, in order to properly defend against this claim.

[16] It is Plaintiff’s counsel’s view that the addition of a pleading relating to section 15 of the Charter does not introduce a new cause of action. The Original SoC already alleged breach of the Plaintiff’s Charter rights. Rather, the new paragraphs further identify the specific nature of the breach in question, and provide a particularization and new legal theory for the Charter claim which will clarify it and thus make the claim, and the defense, more focused. In this view, no limitation period arises as no new cause of action has been introduced.

[17] Plaintiff’s counsel cites Klassen v. Beausoleil, 2019 ONCA 407, paras 27-29, in confirmation of this point:

[27] An amendment will be statute-barred if it seeks to assert a ‘new cause of action’ after the expiry of the applicable limitation period: North Elgin, at paras. 19-23, 33; Quality Meat Packers, at para. 65. In this regard, the case law discloses a “factually oriented” approach to the concept of a ‘cause of action’ – namely, ‘a factual situation the existence of which entitles one person to obtain from the court a remedy against another person’: North Elgin, at para. 19; Quality Meat Packers, at para. 65.

[28] An amendment does not assert a new cause of action – and therefore is not impermissibly statute-barred – if the ‘original pleading … contains all the facts necessary to support the amendments … [such that] the amendments simply claim additional forms of relief, or clarify the relief sought, based on the same facts as originally pleaded’: Dee Ferraro, at paras. 4, 13-14; North Elgin Centre Inc., at paras. 20-21; East Side Mario’s Barrie, at paras. 31-32; Quality Meat Packers, at para. 65. Put somewhat differently, an amendment will be refused when it seeks to advance, after the expiry of a limitation period, a "fundamentally different claim" based on facts not originally pleaded: North Elgin, at para. 23.

[29] The relevant principle is summarized in Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 3rd ed. (Toronto: LexisNexis, 2017), at p. 186:

A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon [which] the original right of action is based.

[18] I am not sure whether or not I ultimately agree with Plaintiff’s counsel on his characterization of the section 15 amendments. They might or might not amount to a new cause of action to which a new limitation period will apply. On the other hand, they are arguably subsumed under the existing pleading as part of the claim for damages under section 24 of the Charter, to which no limitation period is applicable.

[19] I would not dismiss at the pleadings stage an important claim like the section 15 claim on the basis of a possible, but not definitive, limitations argument. It is well accepted that in these circumstances, where novel or publicly important issues of law and policy are pleaded, a full factual record should be developed before dismissal of a claim is to be considered. While a limitation might apply to the section 15 claim, it is not plain and obvious to me that it does or, given the lengthy process of documentary production engaged in by the Defendant, that it has passed: Hunt v. Carey Canada Inc., [1990] 2 SCR 959, at para 33.

[20] Furthermore, Plaintiff’s counsel submits that the proposed section 15 amendments amount to a challenge to the “conduct” of CSIS investigators and staff. All of the facts that are material to the section 15 argument have already been pleaded; Plaintiff’s counsel has characterized this as a new legal theory based on the factual foundation contained in the original Statement of Claim (with its incorporated Federal Court decisions). He submits that as a challenge to conduct of government officials rather than a challenge to any laws themselves, there will be no need for the Defendants to present a defence under section 1 of the Charter: Mackie v Toronto (City) and Toronto Community Housing Corporation, 2010 ONSC 3801 at para 66.

[21] Plaintiff’s counsel also argues that recent case law has eliminated the Defendants’ need to find a mirror image group in arguing the section 15 case. The basis of the section 15 theory in the proposed amended pleading is that the Plaintiff was mistreated – incarcerated – based on his race and/or religion. It is Plaintiff’s counsel’s view that that this action was discriminatory on its face based on grounds enumerated in section 15, and does not prompt a need for wide ranging comparative or social science evidence.

[22] While I see Plaintiff’s counsel’s point, it is not for Plaintiff and his counsel, nor, for that matter, is it for me in a pleadings motion, to tell the Defendants how to defend the claim. They may wish to bring evidence of the policy and societal concerns that gave rise to the treatment of the Plaintiff in the first half of the 2000s. And that may involve comparison data across different sectors of society. In that respect, they may be put to greater expense as a result of the amendments and may be somewhat disadvantaged as a result of the passage of time.

[23] Having said that, the passage of time cannot be blamed on the Plaintiff. It is primarily due to the lengthy process engaged in by the Federal Court of Canada in authorizing the necessary production to be made by the Defendants. That is not exactly the Defendants’ fault either, but they will have to live with the consequences of that legal process. If they think it advisable, they will have to do as best as they can in gathering evidence that re-creates for the court the thinking that went into the evaluation of the Plaintiff’s case and that led to his incarceration.

[24] It is worth noting that the test for a pleading amendment is not whether the amendment may cause the Defendants some prejudice. Rather, under Rule 26.01 of the Rules of Civil Procedure, it is whether it will cause prejudice that cannot be compensated in costs. Counsel for the Defendants are understandably annoyed at having to now do more investigations and potentially collect even more evidence in respect of this claim, but annoyance is not exactly a legally recognized ground of objection.

[25] To the extent that people are not available to give evidence, that is a result of the national security procedures and cannot be visited on the Plaintiff. And to the extent that the Defendants incur extra time and expense putting together the response that needs to be made, that can be the subject of costs submissions down the road. It does not, however, block the section 15-related amendments that the Plaintiff seeks to introduce.

The Department of Justice issue

[26] In my view, the more problematic amendment to the Plaintiff’s pleading is the new inclusion of personnel from the DOJ as allegedly relevant actors giving rise to the claim of liability against the Defendants. The disputed amendments propose adding “employees or agents” of the DOJ to the group of government officials already listed in the Original SoC. Although the Amended SoC he does not specify who these employees or agents might be, it would presumably be lawyers, given the role of the DOJ and the nature of the negligence being alleged: failure to critically review the products of the investigation into the Plaintiff.

[27] Defendants’ counsel argues strenuously that the DOJ, by its structure and mandate, is no more and no less than the government’s law firm. Seen in this light, the Plaintiff’s desire to include DOJ personnel in his claim equates with a party’s desire to sue the opposing party’s law firm of record. The Defendants insist that that cannot be considered a viable claim.

[28] As counsel for the Defendants explain it, such a claim would put the DOJ lawyer in an untenable position of conflict, owing duties of care toward the opponent at the same time as owing professional duties of loyalty to the client. The Manitoba Court of Appeal has said imposing this kind of conflict would “turn the practice of law on its head”: Ostrowski v Weinstein, 2023 MBCA 3, at para 32.

[29] Further, as the Alberta Court of Appeal has observed, this type of conflicting duty would encourage the losing party in any action to re-litigate the case against the opposing counsel: German v Major, 1985 ABCA 176, at para 58. It would also make the confidentiality inherent in solicitor-client privilege impossible to maintain. Needless to say, maintaining the rules of privilege is “no less crucial for government officials than it is for individuals and corporations”: Re Canadian Security Intelligence Service Act, 2021 FCA 92, at paras 171-173.

[30] In short, “for reasons of public policy inherent in the nature of the adversary process, an action in negligence against the solicitor for one’s adversary in litigation is not tenable in the law of Ontario” or anywhere else in Canada: Heydary Hamilton PC v. Dil Muhammad, 2013 ONSC 4938 at para 23. Although Plaintiff’s counsel says that there is something special about the present context that differentiates this case from the usual rule, a cause of action against opposing counsel for acts done in that capacity is generally not sustainable at law.

[31] Plaintiff’s counsel submits that the Charter context of the claim makes this case special. In his submission, the Supreme Court of Canada’s decision in Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 SCR 214 has changed the law when it comes to a lawyer’s responsibility for Charter breaches.

[32] Specifically, he argues that Henry held that the Crown can be sued for damages under s. 24 of the Charter for withholding information that it knew, or ought reasonably have known, was material to the defence. This development, Plaintiff’s counsel contends, exposes not only the Crown as an institution, but Crown prosecutors as the personal embodiment of the institution, to liability for Charter damages.

[33] There are two ways to understand the Amended SoC and its attempt to apply Henry to the national security context. The first is to say that the Supreme Court has effectively made government lawyers personally liable for Charter breaches in which they are implicated. That reading is not made explicit in the Amended SoC. But it is clearly implied by Plaintiff’s counsel’s argument as set out in his factum and repeated at the hearing before me:

With respect to the second set of Disputed Amendments, relating to employees of the Department of Justice, par 10 of the Statement of Claim as originally issued already contained a general pleading that the John Doe and Jane Doe defendants referred to in the Statement of Claim were all “acting in the course of their duties as servants and agents of Her Majesty the Queen in Right of Canada”, without specifying the department or agency in which they were employed. No request for particulars was ever made by counsel for the AGC in that regard. As such, these Disputed Amendments are in reality just further particulars of an existing pleading, and not a substantive addition.

[34] This argument aims to minimize the nature of the amendment, and to counter the Defendants’ limitation challenge, by indicating that the new addition does nothing more than provide the particulars underlying a claim already made. But with the greatest of respect to the Plaintiff and his counsel, it suggests a good deal more than that.

[35] After all, John and Jane Doe are not only referenced in the body of the Plaintiff’s pleading; they are named as individual Defendants. In effect, Plaintiff’s argument signals that DOJ personnel are not just the agents doing the Crown’s work for which the Crown – i.e. government – is liable; it says that DOJ personnel are John and Jane Doe. And if that is the case, the DOJ lawyers will stand in the shoes of the Does and will themselves be personal defendants once identified and named. In this way, an award of Charter damages will be sought not only against the Crown as represented in the style of caused by the Attorney General of Canada, but also against individual lawyers working in the DOJ as represented in the style of cause by John Doe and Jane Doe.

[36] There is nothing in the Henry decision to suggest that one can add a Crown lawyer as a personal Defendant the way the Plaintiff wants to do here by saying that the Doe Defendants are placeholders for DOJ lawyers. That non-personalization of the liability for a Charter violation includes the very Crown prosecutor whose conduct was at issue in the Supreme Court appeal.

[37] The Henry case went through three levels of court, ending with two sets of very thorough reasons, one by Justice Moldaver for the majority and the other by Chief Justice McLachlin joining with Justice Karakatsanis in dissent. Both sets of reasons contained fulsome recitations of the relevant factual background. Having read the judgment, I know Mr. Henry’s first name – Ivan – and I know the name of the eventually convicted man with whom he was apparently confused – Donald McRae. I do not, however, know the prosecutor’s name; it never appears in the judgment as it is not relevant. Simply put, the Charter damages in Henry are against the Crown, not against a Crown (to use the common shorthand).

[38] In Henry, the Supreme Court confirmed that in the criminal prosecution context, the acts of Crown counsel are aimed directly at the accused; they are the acts of the Crown as state actor. Accordingly, the Court also confirmed that a prosecutor’s conduct can be impugned to the state. If the Crown in a criminal case withholds information that it is obliged to disclose, the prosecutor is not advising or representing the official doing the withholding. The prosecutor’s own act of withholding is the state’s act of withholding.

[39] The Henry decision concludes by saying, at para 99: “Mr. Henry may seek to amend his pleadings to include a claim for Charter damages against the AGBC alleging that the Crown, in breach of its constitutional obligations, caused him harm…” Notwithstanding the prosecutor’s direct engagement with the defendant rights holder, the individual prosecutor is not inserted into the style of cause and is not the target of a damages award; that role was reserved for the “AGBC” – the Attorney General of British Columbia as the embodiment of the Crown.

[40] Of course, the “Crown” is a symbol of state, not an actual person. It must act through individual agents. Again, in the criminal context, Crown counsel as prosecutor acts in the Crown’s name as against an accused. That distinguishes criminal cases from virtually every other type of legal action, including civil and regulatory actions in which government is involved as a central player.

[41] Thus, for example, when the Minister of National Revenue seeks payment of taxes owing, or the Minister of Fisheries and Oceans issues fishing licenses or seeks compliance with Atlantic cod quotas, a government lawyer giving advice to ministry officials, or representing those ministries in legal proceedings, is distinct from the investigative and enforcement arm of government that the lawyer represents. The lawyer appearing in court for the government will likely be from the DOJ, and will likely work under the auspices of the Attorney General, but that lawyer will not be wearing the government’s shoes in the criminal prosecution sense. The Supreme Court observed in Krieger v Law Society of Alberta, [2002] 3 SCR 37, that in the ordinary course government lawyers ought not be conflated with the interests of their client:

Attorneys General in this country are, of course, charged with duties beyond the management of prosecutions. As in England, they serve as Law Officers to their respective legislatures, and are responsible for providing legal advice to the various government departments… The numerous other duties of the provincial and federal Attorneys General are broadly outlined in the various Acts establishing the Departments of Justice in each jurisdiction.

[42] Turning to the Plaintiff’s legal context, section 77 of the IRPA and section 12 of the Canadian Security Intelligence Service Act, RSC 1985, c. C-23, require security certificates to be signed by Ministers of government. A DOJ lawyer may represent the Minister in court and render legal advice to the Minister as client; but it is CSIS and the RCMP who investigate and the Minister and Ministry officials who assert claims about production of documents and national security.

[43] Furthermore, under section 83 of the IRPA, it is the designated judge, not DOJ counsel, who has the authority to decide to whether or not information or documents are injurious to national security or disclosable to the individual in question. The DOJ lawyer presenting the case to the designated judge has no oversight role with respect to a Minister’s investigation and disclosure functions: Canada (Citizenship and Immigration) v Harkat, 2014 SCC 37, [2014] 2 SCR 33, at para 46. That lawyer is counsel, not a party to the action. Although the consequences of the proceeding are very serious for the person in the Plaintiff’s position, the lawyer is no more of an embodiment of government conduct than the same DOJ lawyer might be in representing an arm of government in any civil proceeding.

[44] The addition of DOJ personnel to the claim for damages represents an expansion of the factual matrix that is beyond anything contained in the Original SoC: Klassen, at para 14. It implicates conduct that is not included in the investigative conduct alleged against CSIS and the RCMP. In adding the work of DOJ lawyers to the Plaintiff’s claim, it represents an expansion of the claim that is untenable at law.

[45] To be clear, nothing in the Amended SoC suggests that what the Plaintiff is referring to in the challenged paragraphs is some non-legal function performed by the DOJ. I asked at the hearing whether DOJ employees perhaps participate in the investigative process along with the federal investigative agencies, thinking that if in some situations DOJ personnel assist CSIS and/or the RCMP in investigations, as opposed to acting as lawyers, that might provide a reason to add the DOJ to the pleading. I was advised, however, that that is not what the proposed amendment refers to, and that, in any case, the statutory mandate of the DOJ is to provide legal advice and services, not to carry out investigations. Under the circumstances, that function is entirely carried out by, and is alleged in the Original SoC to have been done by, the RCMP and CSIS.

[46] It is settled law that, with the exception of Crown prosecutors acting directly against a criminal defendant, lawyers are not identified with the acts of their clients. They advise clients and represent them, but are neither visited with liability on their behalf nor do their acts visit liability on the clients.

[47] The state may be held liable under the Charter or under tort law for the acts of its investigators and police law enforcers, but it is not liable for the acts of its lawyers in giving advice and representing a Minister of the Crown in litigation. That would create a conflict of legal duties for the DOJ lawyer that is unsustainable and unrecognized at law.

Disposition

[48] Leave to amend the Original SoC to include reference to employees of the Department of Justice, as found in paragraphs 16 and 135A of the Amended SoC, is dismissed. Those amendments are disallowed.

[49] Leave to amend the Original SoC in all other respects proposed by the Plaintiff in the Amended SoC, including the references to s. 15 of the Charter found in paragraphs 1(i), 131(iii), 189A, 189B, 203 and the new heading before paragraph 189A of the Amended SoC, is granted. Those amendments are allowed.

[50] The results of this motion are mixed. There will be no costs of the motion ordered for or against either party.

Released: October 26, 2023 Morgan J.