CITATION: El Batnigi v. Attorney General of Canada, 2026 ONSC 2513
COURT FILE NO.: CV-24-97722
DATE: 2026/04/29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hany El Batnigi and Tamer Jarada, Plaintiffs
AND
Attorney General of Canada, Defendant
COUNSEL: Dimitri Lascaris, Shane Martinez, Jouman El-Asmar, Asaf Rashid, Faisal Bhabha and Yavar Hameed, counsel for the Plaintiffs
Elizabeth Richards, Sanam Goudarzi and Valeriya Sharypkina, counsel for the Defendant
HEARD: November 27, 2025 (Ottawa)
REASONS FOR DECISION
HACKLAND J.
Introduction
[1] The Attorney General of Canada (“Canada”) moves to strike this action on the basis it discloses no reasonable cause of action within the meaning of Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Plaintiffs seek 4 declarations arising from Canada’s alleged failure in its duty to take all reasonable measures within its power to prevent Israel from committing an alleged genocide in Gaza. This duty arises from the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) which came into force on January 12, 1951 and to which Canada is a signatory.
[2] The Plaintiffs seek:
(a) A declaration that Canada has a duty to take all reasonable measures within its power to prevent genocide, and that it has failed to fulfil that duty;
(b) A declaration that Canada has violated the Plaintiffs’ right to life and security of the person, contrary to section 7 of the Charter, by failing to take all reasonable measures within its power to prevent Israel from committing genocide against the Palestinian people of Gaza;
(c) A declaration that Canada has violated the Plaintiffs’ rights to equal protection and equal benefit of the law without discrimination, contrary to section 15 of the Charter, by subjecting them to differential treatment on the basis of their race, religion and ethnic or national origin as Palestinians seeking refuge for themselves, their loved ones, and/or members of their group;
(d) A declaration that Canada’s violations of the Plaintiffs’ rights undersections 7 and 15 of the Charter do not accord with principles of fundamental justice and are not saved by section 1 of the Charter.
Position of the Parties
[3] The Plaintiffs contend that the duty to prevent genocide, which is set forth in Article 1 of the Genocide Convention, to which Canada is a signatory, is a norm of customary international law and has therefore been incorporated into Canadian common law. Further, it is contended that an alleged failure on Canada’s part to fulfill its obligation to prevent genocide is justiciable in our courts.
[4] Canada’s position is that its statements, and the actions that it has taken, are made pursuant to the federal executive’s exclusive prerogative with respect to foreign affairs and international relations. For this reason, the matters raised by the Plaintiffs in this action are not justiciable. In general, it is not appropriate for the courts to second-guess the executive on matters of foreign affairs and national defence. Moreover, while the Genocide Convention requires state parties like Canada to prevent genocide from occurring, this international law obligation is not part of enforceable domestic law.
[5] Canada further takes the position that while the courts may decide whether any particular acts of the executive violate the legal rights of citizens, in this case the Plaintiffs’ rights under sections 7 and 15 of the Charter are not infringed. Section 7 does not impose positive obligations on Canada to protect Canadians or others in foreign jurisdictions and on the facts pleaded there is an insufficient causal link between Canada’s conduct and Israel’s military activity in Gaza. Section 15 is not engaged on the facts of this case and it does not, in any event, impose positive obligations on Canada.
Harms suffered by the Plaintiffs
[6] The Plaintiff’s have pleaded that Hany El Batnigi (“Hany”) and Tamer Jarada (“Tamer”), are Palestinian-Canadians whose lives were irreparably harmed by Canada’s failure to fulfill its common law duty to prevent genocide during Israel’s military assault on Gaza. The harm suffered by the plaintiffs is summarized in the plaintiff’s factum as follows:
(a) “Hany was in Gaza in October 2023. He endured weeks of bombardment, sheltering with dozens of relatives under dire conditions of hunger, chemical exposure, and constant fear of death from Israeli bombardment. Hany was repeatedly denied evacuation each time he made it to the Rafah border crossing, despite assurances from Canadian officials that he was on an approved exit list. When he finally made it back to Canada and attempted to bring surviving relatives to safety via the Gaza Special Measures (“GSM”) program, he was deemed ineligible due to his status as a pensioner.”
(b) “Tamer was in Canada during Israel’s bombardment of Gaza that commenced in October 2023. Nearly all of his immediate and extended family remained in Gaza. He watched in terror as Israeli airstrikes leveled his family’s neighbourhood and then the apartment building where they sought refuge, killing his parents, two sisters, two nephews, an uncle and aunt, three cousins, and several others. Overwhelmed by grief but determined to save those who survived, he applied to sponsor fourteen relatives through the GSM program but faced repeated delays and denials due to onerous restrictions, prolonged inaction, and discriminatory barriers not imposed on those fleeing conflict zones elsewhere.”
Discussion
[7] The parties agree the test on a motion to strike is whether it is “plain and obvious” that the pleading discloses no reasonable cause of action, or that the claim has no reasonable prospect of success. In conducting this analysis, a court is to assume the facts alleged in the pleading are true, unless they are patently ridiculous or incapable of proof or are based on assumptions and speculation. However, bare allegations and conclusory legal statements do not constitute material facts, nor are they assumed to be true for the purposes of a motion to strike. Even novel claims may be struck where they are doomed to fail.
[8] The plaintiffs’ basic contention in this claim is that Canada has a common law duty to take all reasonable measures within its power to prevent genocide and has failed to fulfill that duty. These failures arise in the context of what is said to be Canada’s long-standing exceptional legal treatment of Israel, which is said to be a product of anti-Palestinian racism. The alleged failures include Canada having taken certain positive steps to support the State of Israel during Israel’s “potential commission of a genocide”. These failures on Canada’s part are summarized by the plaintiffs in their Statement of Claim, as follows:
(i) Canada continues to assist Israel with the advancement of its military objectives through military cooperation under the Canada-Israel Strategic Partnership;
(ii) Canada continues to authorize the export of military equipment to Israel, including items subject to the Arms Trade Treaty, and continues to purchase military equipment from Israel;
(iii) Canada accords charitable status to Canadian organizations that funnel millions of dollars to subsidize services provided by Israel’s Ministry of Defence in contravention of Canada Revenue Agency policy;
(iv) Canada has taken no action to deter Canadian citizens from serving in Israel’s military and has allowed Israel’s military (or Canadian organizations acting on its behalf) to recruit Canadian citizens on Canadian soil, in violation of Canadian law;
(v) Canada has not sanctioned the state of Israel, any Israeli military officials or the Prime Minister and former Defence Minister of Israel (both of whom have been indicted by the International Criminal Court, “ICC”), despite liberally imposing sanctions on other states and state actors in response to suspected genocides or lesser international crimes;
(vi) Canada gives Israel preferential treatment under the Canada-Israel Free Trade Agreement and allows products produced in Israel’s illegal West Bank settlements to be sold in Canada, despite claiming that it does not recognize permanent Israeli control over territories militarily occupied in 1967;
(vii) Canada announced that it was suspending funding to the United Nations Relief Works Agency – an aid agency upon which millions of Palestinians depend for the sustenance and health – in the midst of Israel’s military siege on Gaza (an announcement it later rescinded) and
(viii) Canada’s visa program for Palestinians in Gaza imposes onerous, time-consuming and discriminatory burdens not imposed on similarly situated applicants in other programs.
[9] Canada submits these alleged actions or omissions to act pertain to responsibilities recognized by the jurisprudence as falling within Crown prerogative and as such are prima facie not actionable in our courts.
Is the duty to take all reasonable measures to prevent genocide a jus cogens of international law so as to constitute a common law obligation in Canadian domestic law and does it create a cause of action justiciable against the government of Canada?
[10] Canada’s treaty obligations exist as between Canada and other state parties to the treaties in question. Canada’s international obligations only apply domestically to the extent that they are: (1) specific treaty obligations that have been incorporated into Canadian legislation; or (2) part of customary international law, which is automatically adopted into Canadian common law.
[11] Canada submits that as part of its obligations under the Genocide Convention, Canada has established individual criminal responsibility for genocide as a criminal offence within its domestic law. Canada further submits that the Genocide Convention itself is not otherwise part of Canadian domestic law. In particular, the duty to prevent genocide has not been incorporated into either criminal or civil law by way of legislation. Additionally, no Canadian court has found the duty to prevent genocide to be a norm of customary international law.
[12] The concept of a part of customary international law being automatically adopted into Canadian common law is recognized in decisions such as R v Hape 2007 SCC 26 and Nevsun Resources Ltd. v. Araya, 2020 SCC 5. For the purposes of this motion this must be recognized as an accepted legal principle. Notably however, Nevsun was an action taken by individuals (former employees) against a private company for abusive labour practices which contravened customary international law. The Government of Canada was not involved in the proceedings and hence no issues pertaining to justiciability of Crown actions or omissions arose. A key question remains in this case as to whether the duty to take all reasonable measures to prevent genocide is enforceable in domestic proceedings against the Government of Canada, having regard to the principle of justiciability. In other words, the common law duty to take all reasonable steps to prevent genocide (arising from adoption of this international law obligation into Canadian common law) may not be enforceable against Canada in our domestic courts in so far as the required reasonable steps involve developing and carrying out policies and actions in the sphere of international relations, military and defence activities and generally responsibilities within the exclusive responsibility and expertise of the executive branch of government.
[13] The Crown argues, in my view correctly, that the doctrine of justiciability is primarily concerned with the suitability or appropriateness of judicial intervention in social, political and economic life. It is for the courts to decide, whether some questions are so political that courts are incapable or unsuited to dealing with them or should not deal with them in light of the demarcation of powers between the courts and other branches of government. The ultimate question that a court should ask is whether it has the institutional capacity and legitimacy to adjudicate the matter, see Hupacasath First Nation v Canada, 2015 FCA 4, per Stratas J.A. at paras. 62 and 66-70.
[14] The courts have frequently held that certain matters of public policy are within the exclusive domain of the executive and are, on their own, “demonstrably unsuitable for adjudication” see Tanudjaja v Canada (Attorney-General), 2014 ONCA 852 at paras 27 and 33-36. In Tanudjaja, the Court of Appeal upheld the dismissal of an application for a declaration that Canada had unlawfully enacted changes to legislation and implemented policies that eroded access to affordable housing. This issue was found to be primarily political and therefore non-justiciable. The court also emphasized “ there is no judicially discoverable and manageable standard for assessing in general whether housing policy is adequate or whether insufficient priority has been given in general to the needs of the homeless.”
[15] It is recognized that a matter will be found to be non-justiciable where the exercise of executive power is so suffused with ideological, political, cultural, social, moral and historical concerns that it is not amenable to judicial analysis. In these cases, judicial review of the reasonableness of the executive’s actions is beyond the court’s capability, taking into account its proper role, see Hupacasath at para. 66.
[16] Canada’s obligation to prevent genocide under international law has never been found to be enforceable in domestic courts. Furthermore, Canada argues strongly that foreign policy responses with respect to an alleged genocide, or in instances where there is a serious risk of genocide, should be recognized as falling within the exclusive prerogative of the executive branch to conduct foreign affairs.
[17] Government decision-making with respect to military and foreign policy is commonly accepted as non-justiciable unless and to the extent that it may violate the legal rights of citizens. Among the types of decisions the courts have accepted as non-justiciable are: military decisions about how to deploy forces or use military resources; executive decisions to sign a treaty; decisions about the status of foreign diplomats; and decisions to take action against a foreign government entity. See Hupacasath at para. 68; Copello v. Canada (Minister of Foreign Affairs), 2003 FCA 295 at para. 21; and, Orand v. Canada (Public Safety), 2024 FC 37 at paras. 22-23.
[18] Canada submits, correctly in my view, that the courts have recognized that the exercise of the executive power over foreign relations involves sensitive matters of State-to-State communications, expertise in international relations, and the making of government policy in relation to foreign affairs. The exercise of Canada’s prerogative powers with respect to foreign affairs and military matters concerning other states requires weighing many considerations and making policy choices that should not be assessed by the courts. These matters are suffused with ideological, political, cultural, social, moral and historical concerns of a sort not amenable to judicial process. Importantly there are no recognized criteria against which to measure Canada’s compliance with its international obligations.
[19] Further, in determining Canada’s motion to strike in the present case, this Court must consider its institutional capacity and competence to make direct findings regarding the legality of the actions of Israel and the point at which Canada’s international legal obligations would be triggered. This is a necessary determination to any consideration of the sufficiency of Canada’s own actions. The obligation to prevent genocide, pursuant to the Genocide Convention is triggered only when a State has learned, or should normally have learned, of a serious risk that genocide will be committed, see ICJ Bosnia Judgment International Court of Justice, 2007, at para. 431. This is not a question that considers the conduct or practices of a foreign State within the context of a domestic legal dispute, rather it is one involving the application of international relations expertise, see Nevsun Resources at paras. 47-54.
[20] In two recent Federal Court decisions, applications were struck on the basis they would require the court to consider the legality of a foreign State’s actions and whether they constituted genocide, matters which were found to be within the bailiwick of the federal government, not the courts. See Uyghur Rights Advocacy Project v. Canada (AG), 2023 FC 126 at para. 16 and Hewage v. Canada (Prime Minister), 2024 FC 901.
[21] In Turp v. Canada (Foreign Affairs) 2018 FCA 133, the Federal Court of Appeal upheld the dismissal of a judicial review application brought against the department of Foreign Affairs by an individual challenging the issuance of an export permit allowing the export of light armoured vehicles to Saudi Arabia, which was in alleged contravention of a treaty to which Canada was a party. The court held the applicant had no standing to raise an alleged violation by Canada of an international treaty “…even if it has been incorporated into domestic law” and “…in other words, the individuals or persons affected by the violation can not seek any remedy against the state responsible for violating the Geneva Conventions. That is the sole right of a signatory state that is not responsible for the violation.”
[22] This court respectfully agrees with the position taken by Canada that Canada’s duty to take all reasonable measures to prevent genocide is not justiciable in our domestic courts as it invariably involves the exercise of Crown prerogative in the areas of diplomatic and foreign affairs. The court adopts this statement [set out in para 21 of Canada’s factum]:
Adjudicating Canada’s international legal obligation to prevent genocide would inevitably draw this Court into adjudicating diplomatic, foreign policy or other responses plainly beyond the institutional competence of domestic courts. Indeed, among the conduct the Plaintiffs specifically invite the Court to consider as insufficient and contrary to Canada’s international legal obligations are Canada’s alleged military, economic and diplomatic support for Israel. It asks this Court to assess Canada’s duty – and its response – against Canada’s potential capacity to influence Israel, make its own judgment on these questions, and consider potential measures, including severing diplomatic relations, imposing economic sanctions, suspending agreements of cooperation, and recognizing Palestinian statehood, among others.
[23] An important consideration supporting the non-justiciability of the obligation to prevent genocide is that there are no explicit or generally accepted legal standards that a domestic court could apply to this question. On this point the court’s attention was brought to a relevant 2019 decision of the Supreme Court of the Netherlands in State of the Netherlands v. Mothers of Srebrenica Association, in which the court concluded:
3.7.3 The text and the legislative history of the Genocide Convention offer no ground for the assumption that the Contracting States intended to assign direct effect to the obligation of effort defined in Article I of the Genocide Convention. Although Article I of the Genocide Convention does provide that the Contracting Parties undertake to prevent genocide, it does not determine the manner in which they will do so. The obligation of effort to prevent genocide defined in Article I of the Genocide Convention is formulated in general terms and does not entail unconditional and sufficiently precisely described obligations that can be applied directly as objective law in a dispute between an individual and the State. The complaint in part 4 fails for that reason.
[24] The court also accepts Canada’s submission that the requested declarations are vague and nonspecific. They would inevitably require the court to review government policy making in the realm of foreign affairs and international relations. They invite the court to declare what foreign policy measures Canada has unreasonably failed to take and must now take to comply with its alleged duties. These are determinations properly assigned to the executive and not to the judiciary. The declarations are also speculative since the plaintiffs cannot establish that any particular measures taken by Canada would have discouraged or prevented Israel from carrying out its attacks in Gaza.
[25] In summary, this court finds that the first two declarations sought by the plaintiffs must fail (i.e. they have no reasonable prospect of success), because they are dependant on the court concluding that Canada has failed in its duty to take all reasonable measures to prevent genocide in Gaza. It also requires the court to make findings on the plaintiff’s basic thesis that Canada’s policies regarding Israel and Palestine have been infused with ant-Palestinian racism. The adjudication of these alleged failures involves the courts in reviewing and assessing matters of Crown prerogative, such as Canada’s current and past middle east policies which by their nature are not justiciable and fall within the responsibility of the executive branch of government. The common law courts lack the experience, expertise, the standards and procedures to process and rule on these issues.
No violation of Mr. El Batnigi’s Section 7 Charter Rights
[26] I accept the Crown’s position that on the facts pleaded Mr. El Batnigi’s section 7 Charter rights are not engaged. Section 7 does not impose on Canada a positive obligation to prevent a deprivation of his life or security of the person and there is an insufficient causal link between Canada’s conduct and any of the deprivations he suffered in Gaza.
[27] The Plaintiffs plead that Canada’s failure to prevent Israel from committing an alleged genocide causally contributed to a deprivation of this plaintiff’s security of the person. All of the actions referenced in the claim that directly impacted him were those of Israel. He travelled to Gaza freely. He does not plead that Canada acted to prevent him from leaving Gaza after the conflict began. To the contrary, he acknowledges that Canada assisted with his evacuation. The case law holds that section 7 is not engaged without proof of state-caused deprivation, see Canada (Attorney General) v. Bedford, 2013 SCC 72 at paras. 57-20 and Carter v. Canada (Attorney Canada), 2015 SCC 5 at para. 55.
[28] Further, Mr. El Batnigi has failed to show a sufficient causal connection between the alleged Canadian conduct and the deprivation of his right to life and security of the person. To establish a sufficient causal link, there must be both factual involvement of Canadian authorities in how the harms arose as well as foreseeability, i.e. that Canadian authorities knew or ought to have known that harms could arise as a result of Canada’s actions. The focus must be on the specific harms suffered by Mr. El Batnigi, the Charter claimant, not Canada’s potential contribution to the wider conflict. In this case Canada was not aware of Mr. El Batnigi’s plans to travel to Gaza and when this was discovered, it took steps to facilitate his safe return to Canada.
No violation of the Plaintiff’s section 15 Charter rights
[29] The plaintiffs assert that Canada’s visa program for Palestinians in Gaza imposes onerous, time-consuming and discriminatory burdens not imposed on similarly situated applicants in other programs. Specifically they allege that Canada denied them access to a reasonably functional immigration program as compared with other programs. In this regard, they allege that the eligibility criteria and impediments of the Gaza Special Measures (“GSM”) Public Policy, when compared with those of the Canada-Ukraine Authorization for Emergency Travel (“CUAET”) Public Policy and other ad hoc programs, is discriminatory and the product of anti-Palestinian racism.
[30] Differences between two discretionary programs are unlikely to provide a proper basis for a section 15 analysis. However, and in any event, to the extent that such programs entail considerations of immigration policy, foreign affairs, international relations, geopolitical considerations and humanitarian assistance, a claim structured in the way the Plaintiffs advance also inevitably risks drawing the court into adjudicating political matters. Immigration policy is a matter clearly outside the court’s jurisdiction.
The Rules of Pleading
[31] I accept Canada’s contention that the plaintiff’s 110 page statement of claim contains many passages that should be struck under Rules 25.11(a) or (b), in whole or in part, for being irrelevant, pleading evidence, stating conclusions of law or being overly argumentative or prejudicial. In particular the pleadings under the heading “Israel’s Historical Ethnic Cleaning of Palestinians,” contains long accounts of historical events such as the 1947 partition of Palestine and Canada’s role therein, Palestinian civilian casualties prior to the Gaza war, the blockade of Gaza which began in 2007, the Great March of Return, an explanation of the crime of apartheid and ICJ advisory opinions on Israel’s settlements and occupations. As stated above, the matters raised are not justiciable. The Plaintiffs are asking this Court to weigh in on the executive’s foreign policy and defence actions, both past and current. Even if this Court finds the claim justiciable, these historic pleadings are irrelevant. They are not tied to any of the pleaded causes of action or any of the relief sought by the Plaintiffs. Such pleadings will not assist the Court in adjudicating this matter. Moreover, the Defendant should not have to parse them to extract the relevant material facts. These claims will be struck under Rule 25.11 (b)
[32] Further, Statement of Claim, paragraph 17 “Part G – Acknowledgement of Harm to Palestinians” should be struck for pleading evidence. This references news articles and statements from the Prime Minister’s Office to demonstrate that “Canada’s words have not been matched with any meaningful preventative action”. Similarly, paragraphs 349-352, 386-390 and 422-424 alleging Canada’s “practice of systematically failing to uphold the rule of law, anti-Palestinian racism, Israeli legal exceptionalism and systemic Islamophobia” contain legal arguments, plead evidence and contain bald legal conclusions. These paragraphs of the pleading should be struck.
Disposition
[33] For the reasons set out above, the Plaintiffs’ claims for declaratory relief have no reasonable prospect of success. This is primarily due to the non-justiciable nature of Canada’s alleged common law obligations to take all reasonable measures within its power to prevent Israel from committing an alleged genocide in Gaza.
[34] The parties have agreed there would be no costs of this motion and accordingly no costs are awarded.
Justice Charles T. Hackland
Date: April 29, 2026
CITATION: El Batnigi v. Attorney General of Canada, 2026 ONSC 2513
COURT FILE NO.: CV-24-97722
DATE: 2026/04/29
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Hany El Batnigi and Tamer Jarada, Plaintiffs
AND
Attorney General of Canada, Defendant
COUNSEL: Dimitri Lascaris, Shane Martinez, Jouman El-Asmar, Asaf Rashid, Faisal Bhabha and Yavar Hameed, counsel for the Plaintiffs
Elizabeth Richards, Sanam Goudarzi and Valeriya Sharypkina, counsel for the Defendant
REASONS FOR DECISION
Justice Charles T. Hackland
Released: April 29, 2026