Al Omani v. Canada

Al Omani v. Canada
Court (s) Database
Federal Court Decisions
Date
2017-08-24
Neutral citation
2017 FC 786
File numbers
T-1774-15
Decision Content
Date: 20170824
Docket: T-1774-15
Citation: 2017 FC 786
Ottawa, Ontario, August 24, 2017
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
EMAD IBRAHIM AL OMANI, LINA HOUSNE HAMZA NAHAS, AND SULTAN EMAD AL OMANI (A MINOR), LULWA EMAD IBRAHIM AL OMANI (A MINOR), HAYA EMAD IBRAHIM AL OMANI (A MINOR), BY THEIR LITIGATION GUARDIANS, EMAD IBRAHIM AL OMANI AND LINA HOUSNE HAMZA NAHAS
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
ORDER AND REASONS
[1] The Plaintiffs form a family from Saudi Arabia who applied for permanent residence in Canada under the Federal Skilled Worker Class. They submitted a statement of claim alleging a number of causes of action resulting in various heads of damages against the Defendant due to their treatment in the immigration system. They also seek, or give notice of intent to seek, declarations that certain provisions in the Federal Courts Act, RSC, 1985, c F-7 [Federal Courts Act] and the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] are unconstitutional. The Defendant moved to strike the statement of claim in its entirety. The Court must determine whether the Defendant has established that the statement of claim fails to meet the pleadings requirements set out in the Federal Courts Rules, SOR 98-106 [the Rules]. At the Plaintiffs’ request, the Court must also determine whether to grant leave to amend any claims that are struck.
I. Facts as set out in the statement of claim [2] The principal Plaintiff, Emad Al Omani, first submitted an application for permanent residence in Canada under the Federal Skilled Worker Class pursuant to subsection 12(2) of the IRPA in September 2006. That application included his wife, Lina Housne Hamza Nahas, and their two children, Lulwa Ehmad Alomani and Sultan Emad Alomani, as accompanying dependents. Their third child, Haya Emad Ibrahim Al Omani, was later added to the application.
[3] The Canadian High Commission in London dealt with the application and refused it in December 2009 because it fell two points short of the score of 67 needed for a positive decision. The Plaintiffs mainly contest the visa officer’s award of 4/10 points for “adaptability” and 10/16 points for English proficiency, both of which are made by applying subsection 76(1) and related provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR]. The principal Plaintiff maintains he should have received 5 adaptability points for his Canadian brother plus at least 3 adaptability points for his wife’s university degree. On language proficiency, he argues the visa officer should have considered other evidence of his English language abilities:
A/ with respect to adaptability, the Regulations and CIC’s own website, sets out that the Plaintiff, Emad Al Omani, should have obtained, under “adaptability”, 5 points, because he has a “sibling” (brother) who is a Canadian citizen and another 3 points because his spouse has a University degree, for a minimum of 8 out of 10 points for “adaptability”, and these 8 out of 10 points, which are statutorily predetermined, are before even considering the other factors of adaptability, such as the fact that both the Plaintiff and his wife have university degrees from English instruction universities, have a net worth of $2.3 million (CDN), of which half is in liquid assets, have family in Canada, have a job offer in Canada, from the company run and owned by the Plaintiff’s brother;
B/ with respect to language (English) proficiency, the Plaintiff, Emad Al Omani, only received 10 out of 16 points, notwithstanding that the Regulations, and CIC’s representations, indicate that the prescribed English exam is not the only means by which to access English proficiency, and notwithstanding that the Applicant raised the issue of the need to write the exam, when he in fact graduated from an English-speaking University, has worked for English-speaking companies, in the English language, and was in the third year of a four year MBA programme, in English, which he had not yet completed due to work demands, and that the officer was in possession of confirmation of all of the above, and refused to exercise jurisdiction to assess his English proficiency, in the circumstances, within the context of his “ability to become economically established in Canada”
(at para 20(b)(ii) of the statement of claim).
[4] The decision was challenged in the Federal Court. In August 2010, the decision was set aside by the Federal Court and the matter was sent back for redetermination by a different visa officer.
[5] As part of the process of redetermination, the principal Plaintiff submitted further documentation requested by the Defendant and was called for an interview in January 2014. It is asserted that the interview lasted some 15 minutes. The officer asked the principal Plaintiff to explain a change in his job description. Towards the end of the interview, the officer would have asked the principal Plaintiff suddenly whether he “belonged to, or was in any way associated with “any group or organization like Al Qaeda in Iraq” ”. The principal Plaintiff categorically replied, according to the statement of claim, that he did not belong to, nor associated with, such groups as Al Qaeda, nor Al Qaeda itself (statement of claim, para 26(b)). When the principal Plaintiff asked for more detail on the question, the officer refused due to “secrecy” concerns.
[6] In March 2014, the redetermination of the Plaintiffs’ permanent residence application resulted in a second negative decision. The refusal explained that “there are reasonable grounds to believe [the principal Plaintiff is] a member of the inadmissible class of persons described in 34(1)(f)” of the IRPA.
[7] In September 2014, once again the Federal Court ordered that the second negative decision be set aside and the matter was sent back for redetermination. On the record as it stands, the Plaintiffs had not heard from the Crown with respect to this second redetermination. The Plaintiffs sued.
II. Arguments [8] Fundamentally, the Plaintiffs argue that they have been mistreated in Canada’s immigration system to a degree that warrants compensation. They allege the Defendant is liable in tort for misfeasance in public office, abuse and excess of jurisdiction and authority, abuse of process, negligence and negligent investigation, conspiracy, and for breaches of the plaintiffs’ section 7 and section 15 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] rights.
[9] The Plaintiffs are seeking:
i. general damages in the amount of $200,000 per Plaintiff;
ii. aggravated damages in the amount of $50,000 per Plaintiff;
iii. punitive damages in the amount of $50,000 per Plaintiff;
iv. any and all economic loss damages pleaded, to be calculated at trial;
v. a declaration and/or finding that section 49 of the Federal Courts Act, barring jury trials in the Federal Court, is unconstitutional, and of no force and effect;
vi. a declaration and/or finding that the requirement to seek leave from an administrative decision, under the IRPA, to commence judicial review under section 18 of the Federal Courts Act, pursuant to section 72(1) of the IRPA, violates the constitutional right to judicial review and a fair and independent judiciary and is of no force and effect; and
vii. solicitor-client costs of this action and any other relief the Court deems just.
[10] The Defendant contends in her motion to strike that the statement of claim fails to establish any of the alleged causes of action and does not properly plead damages. They further seek to strike the two named Ministers (Foreign Affairs and Citizenship and Immigration) from the action in favour of Her Majesty the Queen, as well as the Plaintiffs’ constitutional arguments respecting the Federal Courts Act and the IRPA.
III. Law on a motion to strike [11] Is before the Court the motion to strike brought on behalf of the Defendant. Rule 221(1) permits the Court to strike a claim on certain grounds:
221(1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it
221(1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d’un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas :
(a) discloses no reasonable cause of action or defence, as the case may be,
a) qu’il ne révèle aucune cause d’action ou de défense valable;
(b) is immaterial or redundant,
b) qu’il n’est pas pertinent ou qu’il est redondant;
(c) is scandalous, frivolous or vexatious,
c) qu’il est scandaleux, frivole ou vexatoire;
(d) may prejudice or delay the fair trial of the action,
d) qu’il risque de nuire à l’instruction équitable de l’action ou de la retarder;
(e) constitutes a departure from a previous pleading, or
e) qu’il diverge d’un acte de procédure antérieur;
(f) is otherwise an abuse of the process of the Court,
f) qu’il constitue autrement un abus de procédure.
and may order the action be dismissed or judgment entered accordingly.
Elle peut aussi ordonner que l’action soit rejetée ou qu’un jugement soit enregistré en conséquence.
The Defendant primarily relies on Rule 221(1)(a), which allows a claim to be struck if it “discloses no reasonable cause of action.”. Rule 221(1)(c) is also in play.
[12] The test to strike a claim under Rule 221 sets a high bar. First, it is assumed that the facts stated in the statement of claim can be proven. The Court must be satisfied that it is plain and obvious that the pleading discloses no reasonable cause of action assuming the facts pleaded are true: R v Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 SCR 45 at para 17; Hunt v Carey Canada Inc, [1990] 2 SCR 959 [Hunt] at p 980. The Defendant bears the onus of meeting this test: Sivak v Canada, 2012 FC 272, 406 FTR 115 [Sivak] at para 25.
[13] In Hunt, the Supreme Court sided with the articulation of the rule in England to the effect that “if there is a chance that the plaintiff may succeed, then the plaintiff should not be “driven from the judgment seat”” (p. 980). A high bar indeed to succeed on a motion to strike. Some chance of success will suffice or, as Justice Estey said in Att. Gen. of Can. v Inuit Tapirisat et al, [1980] 2 SCR 735, “(o)n a motion such as this a court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that "the case is beyond doubt"” (p.740).
[14] To show a plaintiff has a reasonable cause of action, the statement of claim must plead material facts satisfying every element of the alleged causes of action: Mancuso v Canada (National Health and Welfare), 2015 FCA 227, 476 NR 219 [Mancuso] at para 19; Benaissa v Canada (Attorney General), 2005 FC 1220 [Benaissa] at para 15. The plaintiff needs to explain the “who, when, where, how and what” giving rise to the Defendant’s liability (Mancuso, para 19, Baird v Canada, 2006 FC 205 at paras 9-11, affirmed in 2007 FCA 48).
[15] Thus, there appears to be a balance. On one hand, a chance of success is enough for the matter to proceed. On the other, the material facts must be pleaded in sufficient detail such that the cause of action may exist. The purpose of pleadings is to give notice to the opposing party and define the issues in such a way that it can understand how the facts support the various causes of action. As the Court of Appeal put it in Mancuso, “(i)t is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and relief sought” (para 16). The Plaintiffs note that pleadings can still proceed despite being “far from models of legal clarity” (Manuge v Canada, 2010 SCC 67, [2010] 3 SCR 672 at para 23). But it remains that adequate material facts must be pleaded. Parties cannot make broad allegations in their statement of claim in the hope of later going on a “fishing expedition” to discover the facts: Kastner v Painblanc (1994), 176 NR 68, 51 ACWS (3d) 428 (FCA) at p.2.
[16] Rules 174 and 181 further define the minimum requirements for a statement of claim. Pursuant to Rule 174, every pleading must contain the material facts on which the party relies.
174 Every pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved.
174 Tout acte de procédure contient un exposé concis des faits substantiels sur lesquels la partie se fonde; il ne comprend pas les moyens de preuve à l’appui de ces faits.
Rule 181 requires that a pleading contain particulars of any alleged state of mind of a person, malice, or fraudulent intention.
181(1) A pleading shall contain particulars of every allegation contained therein, including
181(1) L’acte de procédure contient des précisions sur chaque allégation, notamment :
(a) particulars of any alleged misrepresentation, fraud, breach of trust, wilful default or undue influence; and
a) des précisions sur les fausses déclarations, fraudes, abus de confiance, manquements délibérés ou influences indues reprochés;
(b) particulars of any alleged state of mind of a person, including any alleged mental disorder or disability, malice or fraudulent intention.
b) des précisions sur toute allégation portant sur l’état mental d’une personne, tel un déséquilibre mental, une incapacité mentale ou une intention malicieuse ou frauduleuse.
[17] But what are “material facts”? They cannot be conclusions or bald allegations: Merchant Law Group v Canada Revenue Agency, 2010 FCA 184 at para 34; 321 DLR (4th) 301 [Merchant]; Mancuso at paras 17-18. You cannot plead bad faith as a material fact by merely stating phrases such as “deliberately or negligently” or “callous disregard:” Zündel v Canada, 2005 FC 1612 at para 16, affirmed in 2006 FCA 356. A modicum of story-telling is required. The statement of claim must contain enough facts for the Defendant to understand, for instance, what the bad faith allegation is based on.
[18] The jurisprudence suggests that a pleading can fall into one of three categories along a spectrum. The pleading either shows no scintilla of a cause of action, in which case the motion to strike would succeed, shows a scintilla of a cause of action, in which case there may be leave to amend, or it shows a reasonable cause of action. The Federal Court of Appeal similarly described in Mancuso material facts and bald allegations as lying on a continuum:
[18] There is no bright line between material facts and bald allegations, nor between pleadings of material facts and the prohibition on pleading of evidence. They are points on a continuum, and it is the responsibility of a motions judge, looking at the pleadings as a whole, to ensure that the pleadings define the issues with sufficient precision to make the pre-trial and trial proceedings both manageable and fair.
IV. Issues [19] Motions to strike can present short questions with lengthy answers. Based on the aforementioned law, we are concerned with two overarching issues in this case:
1. Is it plain and obvious that the statement of claim discloses no reasonable cause of action with respect to some or all of the claims?
2. Do some claims that could be struck nevertheless show a scintilla of a cause of action such that the Plaintiffs should be granted leave to amend those claims?
V. Analysis of each alleged cause of action [20] The Court must take the statement of claim as it is. It must be read as generously as possible, thereby avoiding to put weight on what may be drafting deficiencies. However, would not be drafting deficiencies what would amount to speculations, hoping to find facts on discovery to support the allegations made. In effect, the motions judge is looking for the facts, taken as proven at this stage that will satisfy all of the necessary elements of the cause of action.
A. Material facts [21] We find guidance in the binding decision of the Federal Court of Appeal in Mancuso on the requirements for a statement of claim to resist a motion to strike under rule 221.
[22] The main theme in Mancuso is the requirement that there be sufficient material facts pleaded. The material facts that are pleaded must be sufficient to support the claim and the relief sought. That means therefore that the facts must be advanced so that the cause of action may be established, leading to an appropriate remedy. The Court of Appeal agreed with the judge in Mancuso that “pleadings play an important role in providing notice and defining the issues to be tried and that the Court and opposing parties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action” (para 16). The plaintiff must commit to more than merely stating some facts, a sort of narrative taken as proven, and then posit a series of alleged causes of action in order to prevail on a motion to strike.
[23] A plaintiff will want to maximize her flexibility in a statement of claim. But she “must plead, in summary form but with sufficient detail, the constituent elements of each cause of action or legal ground raised. The pleading must tell the defendant who, when, where, how and what gave rise to its liability” (Mancuso, para 19). As is often the case, the principle behind the rule helps understand the scope of the requirement. Hence, we read at paragraph 17 of Mancuso:
[17] The latter part of this requirement – sufficient material facts – is the foundation of a proper pleading. If a court allowed parties to plead bald allegations of fact, or mere conclusory statements of law, the pleadings would fail to perform their role in identifying the issues. The proper pleading of a statement of claim is necessary for a defendant to prepare a statement of defence. Material facts frame the discovery process and allow counsel to advise their clients, to prepare their case and to map a trial strategy. Importantly, the pleadings establish the parameters of relevancy of evidence at discovery and trial.
[24] Thus, adequate pleadings are required up front; adequate material facts are mandatorily required. As put by the Mancuso Court at para 20, “(p)laintiffs cannot file inadequate pleadings and rely on a defendant to request particulars, nor can they supplement insufficient pleadings to make them sufficient through particulars: AstraZeneca Canada Inc. v. Novopharm Limited, 2010 FCA 112.”
[25] That translates into the requirement that tort claims be identified and then the material facts are set out such that the elements of the tort claim are satisfied. In my view, that is largely missing in this statement of claim, which has made the examination of the motion to strike quite cumbersome.
B. How the statement of claim is organized [26] The statement of claim is difficult to apprehend and somewhat unwieldy. It starts off with bald allegations of various infringements, be they abuse of process, excess of authority, public misfeasance, negligence, negligent investigation, contempt of two Federal Court Judgments, as well as violation of section 15 and 7 of the Charter. For good measure, there is also an allegation that section 49 of the Federal Courts Act (prohibition of jury trails) and 72 of the IRPA (requirement that leave be granted for judicial review) are unconstitutional and of no force and effect.
[27] It then continues with a series of paragraphs that allege facts, what constitutes in fact a narrative. Follow a number of paragraphs which provide a series of heads of damages that allegedly would result from the facts as presented. The chapeau of para 30 simply states that damages were suffered as a result of “officials’ inexcusable delay, false and unfounded allegations, and breach of duty to process the main Plaintiffs’ application.”
[28] Paragraphs 32 to 35 of the statement of claim that the Plaintiffs list causes of action. Thus, para 32 declares that there was:
• abuse and excess of jurisdiction and authority;
• abuse of process at common law and section 7 of the Charter;
• public misfeasance.
The paragraph ends with a mere declaration, without any connection with the facts, that “tortious conduct has caused the damages”. What particular facts constitute the alleged tortious conduct is nowhere to be found in the pleading.
[29] Para 34 of the statement of claim seeks to be somewhat more precise in suggesting that the delay between various proceedings constitutes in itself abuse and excess of authority as well as public misfeasance, alleging bad faith at para 35.
[30] The Plaintiffs chose to plead in the alternative that officials have been negligent and engaged in negligent investigation. As for these causes of action, the statement of claim does not state what facts are pled in support of its essential elements. Rather, it is simply stated that they are owed a duty of care “to competently and with due dispatch properly process an application …as well as competently and diligently investigate any allegations of inadmissibility” (para 36).
[31] In the further alternative, the Plaintiffs allege a conspiracy to deny their permanent residence. This time, the allegations are barely more precise in that the Plaintiffs allege “a contrived denial made in bad faith”, delay and baseless association with Al Qaeda (para 37). I note that, again, the material facts that would give precision to the alleged conspiracy are not stated. In fact, there is a general allegation of conspiracy, but bad faith, delay and baseless association do not make a conspiracy, i.e. where there is proof of agreement and execution. The Defendant does not know who, when, where, how and what which would give rise to its liability.
C. Amending pleadings [32] It does not suffice for the Court to rule that a pleading is deficient. Rule 221 requires consideration of whether a pleading should be struck with or without leave to amend. The jurisprudence points to various considerations which come into play in making such determination.
[33] The Plaintiffs have raised the possibility that if the statement of claim is struck in part or in whole, leave to amend the pleadings should be granted. As long as a pleading shows a scintilla of a cause of action, it will not be struck out if it can be cured by amendment: Hunt at pp 976-978; Simon v Canada, 2011 FCA 6 [Simon] at para 8; Collins v Canada, 2011 FCA 140 at para 30 [Collins]; Sivak at para 94; Sweet v Canada (1999), 249 NR 17 at para 21 (FCA) [Sweet]; Larden v Canada, (1998) 145 FTR 140 at para 26; Kiely v Her Majesty the Queen, (1987) 10 FTR 10 (FCTD) at p 2; Waterside Ocean Navigation Co Inc v International Navigation Ltd, [1977] 2 FC 257 at para 4.
[34] The case law teaches that a pleading will not be struck out without leave to amend unless there is no scintilla of a cause of action (McMillan v Canada, (1996) 108 FTR 32 [McMillan] and Sivak). But there must be that scintilla. As Associate Chief Justice Jerome put it in McMillan, “(t)he burden on the applicant under R. 419 (1)(a) is heavy since portions of the pleadings will only be struck out if it is clear that the claim cannot be amended to show a proper cause of action” (para 39).
[35] However, it is not for the Court to redraft the pleadings. In Sweet, the Court of Appeal commented that “(e)ach proceeding is to be assessed on its own merits, with consideration being given to, inter alia, the personal situation of the party, the issues and arguments raised, the manner and tone in which they are raised, the number and proportion of allegations that are defective and the readiness of the amendments needed” (my emphasis, para 21).
[36] In fact, if a scintilla of a cause of action has been pleaded, this Court may be more reticent to strike claims without leave to amend in case it is the first version of the pleading, as in this case. In Simon and Collins, the Court of Appeal warned that failure to comply with the rules once the pleadings have been allowed to be amended would expose the pleadings to the risk of being struck out (Simon at para 17 and Collins at para 31).
D. Alleged causes of action [37] At the outset of the hearing, the parties agreed that the Defendant’s list of claims was a satisfactory way to organize the discussion. I will proceed through each claim in this order and address the two issues identified above.
Claim 1: Misfeasance in public office [38] The statement of claim alleges the tort of misfeasance in public office. Because it constitutes the cause of action on which the Plaintiffs have chosen to rely the most heavily, I have attempted to gather the various paragraphs of the statement of claim which refer to misfeasance:
1. The Plaintiffs claim […] all of which damages arise from: […]
(ii) the Defendants’ servants and officers’ actions, and lack of action and omissions, in not issuing the permanent resident visas, and not complying with the Federal Court orders, constitutes an abuse of process, abuse and excess of authority and jurisdiction, public misfeasance, as well as negligence, and negligent investigation, all compensable at common-law, under the Immigration and Refugee Protection Act (“IRPA”), as well as s. 24(1) of the Charter.
[…]
32. The Plaintiffs state, and the fact is that:
(a) the Defendants’ officials have, with knowledge and intent, abused process, abused and exceeded authority and jurisdiction, and engaged in public misfeasance of their office, in their refusal to lawfully abide by the Federal Court order and terms of the IRPA and Regulations, and issue permanent residence visas, and in the refusal(s) to give any cogent and/or sober answers to the plaintiffs and their counsel, except stone silence and stone-walling and that the Defendants’ servants and officials have: […]
(iii) engaged in public misfeasance as set out by the Supreme Court of Canada in Odhavji Estate v. Woodhouse [2003] 3 S.C.R. 263, in that:
A/ the officials engaged in deliberate, unlawful conduct in the exercise of their public functions;
B/ the officials are aware that the conduct is unlawful and likely to injure the plaintiffs; and
C/ the officials’ tortious conduct is the legal cause of the plaintiffs’ injuries pleaded herein;
[…]
33. The Plaintiffs state that the Defendants’ officials have a common-law duty, as well as a statutory duty under s. 3(1)(f) of the IRPA, as interpreted and confirmed by this Court, in Dragan v Canada QL [2003] F.C.J. No. 260 and Liang v Canada (M.C.I.) 2012 FC 758 decisions to process applications consistently and promptly, which sub-section reads:
3. (1) The objectives of this Act with respect to immigration are
…
(f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces […]
34. The Plaintiffs state that the Defendants’ inexcusable, inordinate, and castigating delay, both between the time of the 1st judicial review and the 2nd negative decision, as well as the 2nd judicial review to the present, constitutes abuse and excess of authority, as well as public misfeasance, of public office, in that inexcusable delay has been determined to constitute public misfeasance in inter alia, McMaster v. Canada, [2009] F.C.J. No. 1071, by this Court.
35. The Plaintiffs further state that the conduct of the officers, and nature and substance of both decisions to deny the Plaintiffs permanent residence, has been made in bad faith, and absence of good faith, and further constitutes public misfeasance as set out above in the within statement of claim.
[39] As indicated earlier, the Plaintiffs must plead with sufficient detail the constituent elements of each cause of action. But that is not enough. The Plaintiffs must also plead material facts in sufficient detail. As already indicated earlier, the trial judge in Mancuso commented, and it was specifically approved by the Court of Appeal, that “opposing parties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action” (para 16). I am afraid this statement of fact suffers from that very deficiency. The elements of the tort of misfeasance are set out in Odhavji Estate v Woodhouse, 2003 SCC 69, [2003] 3 SCR 263 at paras 22-23 [Woodhouse]. The tort may take two different forms, but each requires the elements which are common to both. These elements are “(f)irst, the public officer must have engaged in deliberate and unlawful conduct in her or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff” (para 23). The tort may be approached in two ways. The two elements can be independently established, requiring unlawful conduct and knowledge that conduct was likely to cause harm. Or, both elements can be satisfied by proving the public officer specifically intends to injure a person because such officers do not have the authority to exercise their powers for an improper purpose (Woodhouse at para 23).
[40] The first element is focused on whether the alleged misconduct is deliberate and unlawful. This can arise from an act or omission that “arises[s] from a straightforward breach of the relevant statutory provisions or from acting in excess of the powers granted for an improper purpose”: Three Rivers District Council v Bank of England (No. 3), [2000] 2 WLR 1220 at p 1269, cited in Woodhouse at para 24.
[41] The second element establishes the nexus between the impugned public official and the plaintiff by requiring that defendants know that their conduct was unlawful and likely to harm. One can read at paragraph 29 of Woodhouse:
The requirement that the defendant must have been aware that his or her unlawful conduct would harm the plaintiff further restricts the ambit of the tort. Liability does not attach to each officer who blatantly disregards his or her official duty, but only to a public officer who, in addition, demonstrates a conscious disregard for the interests of those who will be affected by the misconduct in question. This requirement establishes the required nexus between the parties. Unlawful conduct in the exercise of public functions is a public wrong, but absent some awareness of harm there is no basis on which to conclude that the defendant has breached an obligation that she or he owes to the plaintiff, as an individual. And absent the breach of an obligation that the defendant owes to the plaintiff, there can be no liability in tort.
The Court has further commented that this element requires the Defendant, at the very least, to have been “subjectively reckless or wilfully blind as to the possibility that harm was a likely consequence of the alleged misconduct” (Woodhouse at para 38).
[42] The requirement that the Defendant must have known that the conduct was unlawful is essential to the tort of misfeasance in public office. A public official’s decision may well be adverse to certain people’s interests, and yet still be lawful:
The requirement that the defendant must have been aware that his or her conduct was unlawful reflects the well-established principle that misfeasance in public office requires an element of “bad faith” or “dishonesty”. In a democracy, public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certain citizens. Knowledge of harm is thus an insufficient basis on which to conclude that the defendant has acted in bad faith or dishonestly. A public officer may in good faith make a decision that she or he knows to be adverse to the interest of certain members of the public. In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office.
(Woodhouse, para 28)
[43] With that understanding of the tort, I will assess whether the statement of claim sufficiently pleads both tort elements for each of the Plaintiffs’ misfeasance pleadings. The statement of claim seems to allege misfeasance on four grounds: (i) refusal to abide by Federal Court orders; (ii) refusal to issue permanent resident visas; (iii) refusal to provide “cogent and/or sober” answers to questions posed by the Plaintiffs; and (iv) delay in processing the Plaintiffs’ permanent residence applications. For the first three grounds, the Plaintiffs allege that the actions were done “with knowledge and intent”, but no similar claim is made with respect to the alleged processing delay.
(1) Misfeasance claim 1: Contempt [44] I see no potential for deliberate, unlawful conduct in the first allegation of contempt. The statement of claim says both Court orders sent the visa decision back for redetermination. There is no indication as to how the redetermination should proceed. No direction was given by the Court. The first redetermination resulted in a second negative decision, and the second redetermination is outstanding. The pleadings contain no facts, let alone material facts, showing that the orders were not followed. In fact, the exact opposite occurred. There was no refusal to abide by the court orders.
[45] As a result, I cannot see a scintilla of a cause of action in the Plaintiffs’ claim that the Defendant failed to abide by the orders in bad faith. I am striking the misfeasance claim respecting the “refusal to abide by Federal Court orders” without leave to amend.
(2) Misfeasance claim 2: Refusal to issue permanent visas [46] The second allegation is not, prima facie, unlawful. The act of refusing to issue permanent residence visas regularly occurs as a result of implementing IRPA. In this case, it is not completely clear on the record how the refusal to issue visas constitutes misfeasance.
[47] The statement of claim offers that the first visa officer awarded the principal Plaintiff the wrong number of points under the IRPR in the face of evidence to the contrary and that the visas were denied “with knowledge and intent”. The relevant provisions set precise point allocations for the adaptability criterion, leaving the visa officer little discretion in how to award points for a Canadian relative or a spouse’s education.
[48] It also states that the second visa officer deemed the principal Plaintiff inadmissible on the basis of wrong information. The relevant inadmissibility provisions of IRPA state that a foreign national is inadmissible for “being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to [in above subsections]” (para 34(1)(f) of IRPA). The determination of whether that organization engages in the enumerated acts requires that the officer must have “reasonable grounds” to believe in order to make that decision. That leaves a measure of appreciation to the officer. Certainty beyond a reasonable ground is not required. The test does not contemplate either that the officer be satisfied on a balance of probabilities, the legal standard in civil matters (Canada (Attorney General) v Fairmont Hotels Inc., 2016 SCC 56, [2016] 2 SCR 720). Reasonable grounds to believe will suffice. The Plaintiffs, on the other hand, state that there is no basis for the inadmissibility finding.
[49] The phrase “with knowledge and intent” is a bald conclusion; however, there are sufficient material facts alleged early in the statement of claim to appreciate that there is a basis for the claim that both actions were deliberate conduct. It appears to me that there is a scintilla of a cause of action pleaded however imperfectly. But more precision is needed. The material facts must be plainly identified and they must be connected to the elements of the tort asserted, including of course the required state of mind (Mancuso, para 26).
[50] The second tort element is knowledge that the visa denials were unlawful and likely to harm the Plaintiffs. The statement of claim says that the visa officers denied the lawful visa issuance “with knowledge and intent” and “in bad faith”. If the officers did award the wrong number of points and deem the principal Plaintiff inadmissible in the face of clearly contradictory evidence, this is sufficient to plead that the officers knew their conduct was unlawful. Woodhouse found that a similarly-worded pleading was sufficient to establish a reasonable cause of action in misfeasance:
Insofar as the second requirement is concerned, the statement of claim alleges that the acts and omissions of the defendant officers “represented intentional breaches of their legal duties as police officers”. This plainly satisfies the requirement that the officers were aware that the alleged failure to cooperate with the investigation was unlawful. The allegation is not simply that the officers failed to comply with s. 113(9) of the Police Services Act, but that the failure to comply was intentional and deliberate.
(Woodhouse, para 36)
[51] The only reference to knowledge that the unlawful conduct would likely harm the Plaintiffs is at paragraph 35, which states “that the conduct of the officers, and nature and substance of both decisions to deny the Plaintiffs permanent residence, has been made in bad faith” and the general assertion that the alleged misfeasance was done “with knowledge”. Bald conclusions such as “in bad faith” do not qualify as material facts (Merchant at para 34). Moreover, Rule 181 requires that Plaintiffs provide particulars on the material facts they are pleading to support a tort’s mental element. Here, the Plaintiffs seem to be pointing to several circumstantial facts to argue that the Defendant intentionally misprocessed their permanent residence applications over a ten-year period to keep them out of Canada.
[52] If someone applies for a permanent residence visa, they expect to have it properly processed because they want to live in Canada. It is not a stretch to infer that improper denial of such a visa would likely harm applicants wanting to come to Canada. Of course, the statement of claim should actually plead specifically the material facts necessary to make out this second tort element. That was not done. Mancuso requires the who, when, where, how and what. The issue must be defined with more precision in order to make the proceedings manageable and fair. The amended pleadings will have to provide the material facts such that the Defendant will know what it is defending against. At this stage, one has to speculate somewhat as to what facts constitute the cause of action. More and better precision is called for.
[53] My role on a motion to strike is not to decide the Plaintiffs’ chance of succeeding with this argument (Minnes v Minnes (1962), 39 WWR 112). Because I see a scintilla of a cause of action, barely, I am also granting leave to amend this particular misfeasance claim with respect to the second tort element (i.e. material facts underpinning the allegation that the public official “knew” that their act or omission would likely harm the Plaintiff).
(3) Misfeasance claim 3: Refusal to provide answers [54] The fact that the Defendant refused to answer the Plaintiffs’ questions does not show unlawful conduct. This does not show a cause of action, let alone a reasonable one. Unlike the points calculation and the inadmissibility decision, the Plaintiffs failed to point to a statutory obligation that the visa officer(s) breached or show that the officer(s) acted unlawfully in the exercise of their public functions generally. As a result, I am striking the misfeasance allegation concerning the “refusal to provide “cogent and/or sober” answers to questions posed