Gupta v. Canada

Gupta v. Canada
Court (s) Database
Federal Court Decisions
Date
2019-05-14
Neutral citation
2019 FC 669
File numbers
T-1255-16
Decision Content
Date: 20190514
Docket: T-1255-16
Citation: 2019 FC 669
Ottawa, Ontario, May 14, 2019
PRESENT: Madam Justice Walker
BETWEEN:
CHIRADEEP DUTTA GUPTA
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
JUDGMENT AND REASONS
[1] This judgment addresses the Defendant’s motion for summary judgment made pursuant to Rule 213 of the Federal Courts Rules, SOR/98-106 (Federal Courts Rules).
[2] On July 28, 2016, the Plaintiff, Mr. Chiradeep Gupta, served and filed an action for damages against the defendants, Her Majesty the Queen and the Minister of Immigration, Refugees and Citizenship (Minister). The Plaintiff’s claim is based on allegations of gross misconduct, conspiracy and breach of his fundamental rights by representatives of the Minister and the Canada Border Services Agency (CBSA) in their treatment of his application for Canadian citizenship from 2010 through 2015.
[3] The Defendant submits that this Court should grant summary judgment pursuant to Rule 215 of the Federal Courts Rules on the grounds that: (1) the Plaintiff’s action is statute-barred pursuant to the Ontario Limitations Act, 2002, SO 2002, c 24, Sched. B, (Ontario Limitations Act) because the proceeding was commenced more than two years after the claim was discovered; and (2) the Plaintiff’s action raises no genuine issue for trial.
[4] For the following reasons, I have found that there is no genuine issue for trial with respect to the Plaintiff’s claims. The Defendant’s motion for summary judgment will be granted.
I. Amendments to the Named Defendants and Style of Cause
[5] Pursuant to Rule 76 of the Federal Courts Rules, the Defendant properly requests that the Minister of Immigration, Refugees and Citizenship be removed as a Defendant in this matter and the style of cause amended accordingly. The request is granted and the style of cause is so amended.
II. Factual Background
[6] The Plaintiff is a citizen of India. He became a permanent resident of Canada in December 2002. The Plaintiff applied for Canadian citizenship on December 29, 2008 and passed a citizenship test in November 2009. On April 30, 2010, his application for Canadian citizenship was approved by a citizenship judge. The Plaintiff was scheduled to take his oath of citizenship at a ceremony in Etobicoke, Ontario on September 10, 2010.
[7] In his Statement of Claim, the Plaintiff states that, on July 12, 2010, he returned to the United States to take care of business matters. He was arrested in the US on July 16, 2010 and indicted for health care fraud.
[8] On September 7, 2010, an agent with the US Federal Bureau of Investigation (FBI), Ms. Katrina Amos, contacted Immigration, Refugees and Citizenship Canada (IRCC) (then Citizenship and Immigration Canada or CIC) to inform IRCC of the charges against the Plaintiff and of the FBI’s concern that the Plaintiff would go to Canada if released on bail and would not return to the US for his trial. On September 9, 2010, the Plaintiff was granted permission by a US district court judge in Michigan to travel to Canada for one day on September 10, 2010 for his citizenship ceremony. The same day, Ms. Amos informed Ms. Heather Primeau of IRCC that the Plaintiff would be travelling to Canada.
[9] On September 9, 2010, IRCC officials brought the Plaintiff’s situation to the attention of Ms. Maha Suleiman, a citizenship officer in IRCC’s Etobicoke office who had carriage of the Plaintiff’s file.
[10] On September 10, 2010, at or just prior to the oath ceremony, the Plaintiff was informed by Ms. Suleiman that his oath was being postponed until more information was obtained concerning his residence in Canada and the US criminal proceedings against him. The Plaintiff and Defendant disagree as to whether the Plaintiff was removed from the ceremony room as the ceremony started, causing him humiliation, or whether he was approached privately by Ms. Suleiman just before the ceremony.
[11] On September 16, 2010, the Plaintiff wrote to IRCC stating that his criminal charges would be settled quickly and that he would update IRCC on the outcome of the proceedings. He requested that his citizenship oath be postponed until the charges against him were resolved. The Plaintiff also provided his new address in Toronto.
[12] On October 18, 2010, Ms. Caroline Lemieux, a case review officer at IRCC, recommended to Ms. Suleiman that the Plaintiff’s case be referred to the CBSA for an admissibility review due to the US criminal charges and that a letter be sent to the Plaintiff to inform him of IRCC’s residency concerns. No action was taken on these recommendations because of a business realignment at IRCC. In November 2010, the Plaintiff’s file was transferred from Etobicoke to Mississauga, leading to processing delays. On April 8, 2011, the Plaintiff’s file was assigned to Ms. Livia Cardamone, an IRCC citizenship officer.
[13] On October 26, 2012, the Plaintiff was convicted of health care fraud and money laundering in the United States.
[14] On June 7, 2013, Ms. Cardamone attempted to contact the Plaintiff regarding the outcome of his criminal charges. The parties disagree as to whether the Plaintiff returned her call and left a message. In any event, Ms. Cardamone and the Plaintiff did not speak.
[15] On January 24, 2014, the Plaintiff was sentenced in the United States to ten years in prison and ordered to pay $10 million (USD) in restitution. Just before the date on which he was scheduled to report for incarceration, the Plaintiff was arrested while attempting to board a flight to India. He pled guilty to one charge of contempt of court and was sentenced to an additional two years of imprisonment, to be served consecutively to his original sentence. The Plaintiff began his prison sentence on February 4, 2015. He appealed his conviction and sentence based on ineffective assistance from counsel but, on March 14, 2018, the United States Court of Appeal for the Sixth Circuit refused the Plaintiff’s Motion to Vacate, Set Aside or Correct Sentence.
[16] In early 2015, IRCC’s Case Processing Centre in Mississauga conducted a review of its outstanding citizenship files. On April 9, 2015, Ms. Laura Miggiani, an IRCC citizenship officer, contacted Ms. Anne Raposo of the CBSA to inform her that IRCC had discovered that the Plaintiff had been convicted and sentenced to ten years in prison in the United States. Ms. Miggiani asked whether the CBSA intended to pursue enforcement action against the Plaintiff because of his criminal inadmissibility. The same day, Ms. Cardamone instructed a colleague to schedule the Plaintiff to take the citizenship oath and that his file should be abandoned if he was not present at the ceremony. The ceremony was scheduled for April 27, 2015.
[17] Also on April 9, 2015, Ms. Raposo informed IRCC that the CBSA planned to pursue enforcement action on the basis of the Plaintiff’s criminality. The CBSA requested that the Plaintiff’s citizenship application be placed on hold. On April 14, 2015, Ms. Raposo advised IRCC that no further action would be taken against the Plaintiff until his 2023 release from prison and that his file would be flagged.
[18] On or about April 13, 2015, the Plaintiff was summoned, by way of a Notice to Appear sent to his last known address on file, the address in Toronto, to a citizenship ceremony to be held in Mississauga, Ontario, on April 27, 2015. The Plaintiff did not attend the oath ceremony. The IRCC’s Notice to Appear was returned to the sender on May 5, 2015.
[19] On June 9, 2015, an Abandonment of Citizenship Application letter was sent to the Plaintiff. This letter too was returned to its sender.
[20] On June 11, 2015, the Citizenship Act, RSC 1985, c C-29 (Citizenship Act) was amended to expand the criminal prohibition against granting citizenship to include persons who are charged outside Canada for an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament or who are serving a sentence outside Canada for such an offence.
[21] On August 5, 2015, the Plaintiff’s counsel wrote to IRCC, stating that the Plaintiff had failed to update his contact information. He requested that the Plaintiff’s file be reopened and that his citizenship ceremony be rescheduled once he is released from custody. The letter stated that the Plaintiff’s failure to attend the ceremony was outside of his control. On September 10, 2015, Plaintiff’s counsel requested an update on the status of his letter.
[22] On October 27, 2015, the contents of the Plaintiff’s citizenship file were disclosed to him pursuant to a response to an Access to Information (ATIP) request. Among the documents provided to the Plaintiff were the emails among IRCC and CBSA officials that now form the basis for his claim.
III. Litigation Background
[23] On July 28, 2016, the Plaintiff filed an action for damages against Her Majesty the Queen and the Minister. The Plaintiff seeks moral damages of $30,000 per year since 2010 and exemplary damages of $50,000 for the loss of his citizenship rights and the violation of his fundamental rights. Broadly speaking, the Plaintiff bases his action on the following assertions:
1. Gross misconduct of IRCC: The Plaintiff alleges repeatedly that he was granted Canadian citizenship by the citizenship judge on April 30, 2010 and that, beginning with the actions of IRCC officials on September 10, 2010 to deny him the opportunity to take the oath of citizenship, IRCC and CBSA officials conspired to deprive him of his citizenship rights in order to assist US prosecutor Wyatt Pratt in his personal agenda against the Plaintiff. In so doing, the officials failed to respect Canadian laws and regulations as his US criminality was not a basis to deny his citizenship rights. The Plaintiff states that this conduct continued through June 2015 with the actions of Ms. Cardamone and Ms. Raposo in convoking his attendance at an oath ceremony while he was incarcerated in the United States and, therefore, unable to attend. The Plaintiff argues that these actions were not carried out by a lone employee but were planned and acted on in unity by numerous agents and supervisors who intentionally ignored his crystallized citizenship rights and repeatedly lied to him.
2. Breach of fundamental rights of the Plaintiff: The Plaintiff alleges that the actions of IRCC and CBSA officials breached his right to equality pursuant to section 15 of the 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) and, more generally, the protection of all rights afforded to Canadian citizens under the Charter.
3. Damages: The Plaintiff alleges that the Defendant has caused him unquantifiable moral damages by virtue of the continual emotional stress occasioned by his knowledge that he was not treated legitimately by IRCC and CBSA officials and by the defeat of his legitimate expectation to obtain citizenship. He alleges that these actions caused him the unrecoverable loss of his citizenship rights as he is incarcerated in the US and unable to serve his sentence in a Canadian prison. The Plaintiff also refers to his adverse experiences as a foreigner incarcerated in a US jail in support of his claim for damages.
[24] On September 26, 2016, the Defendant filed a Statement of Defence. The Defendant denies the Plaintiff’s characterization of the actions of IRCC and CBSA officials as part of a plot or conspiracy against him and submits:
1. Factual Arguments: The Defendant denies the Plaintiff’s allegations that Ms. Suleiman was asked to stop the Plaintiff from taking his citizenship oath following exchanges with Ms. Amos of the FBI. The Defendant also denies that Ms. Suleiman misinformed the Plaintiff regarding the basis for the postponement of his oath ceremony. The Defendant asserts that Ms. Suleiman informed the Plaintiff that his ceremony would be postponed in light of the fact that his fraud charges in the US raised concerns regarding his residence in Canada during the relevant period. In countering the Plaintiff’s allegation that IRCC and CBSA officials disregarded the law and waited five years until he could not return to Canada to rescind his rights, the Defendant states that the Minister postponed rather than refused to grant citizenship to the Plaintiff and that the Minister had no statutory or positive duty to administer the citizenship oath within a prescribed period of time.
2. Statute of Limitations: The Defendant argues that the material facts that form the basis of the Plaintiff’s claim for damages against the Minister occurred in Etobicoke, Ontario on September 10, 2010 when he was prevented from taking the citizenship oath. Pursuant to section 32 of the Crown Liability and Proceedings Act, RSC 1985, c C-50 (Crown Liability and Proceedings Act), and subsection 39(1) of the Federal Courts Act, RSC 1985, c F-7 (Federal Courts Act), as the Plaintiff’s claim arose in Ontario, the provincial laws of prescription and limitation apply in this case. Pursuant to section 4 of the Ontario Limitations Act, the applicable limitation period is two years. As the claim on which the Plaintiff’s action is based was discovered more than two years before the action was commenced, the claim is statute-barred.
3. Conduct of IRCC: The Defendant emphasizes that the citizenship judge could not grant citizenship to the Plaintiff. The power to do so was reserved to the Minister pursuant to subsection 14(2) of the Citizenship Act as it then read. In order to become a Canadian citizen, the Plaintiff was required to take the oath of citizenship at a citizenship ceremony pursuant to subsections 19(1) and (2) of the Citizenship Regulations, SOR/93-246. The Defendant argues that Canadian citizenship is a privilege and not a fundamental right and that, based on the information from the FBI regarding the Plaintiff’s US fraud charges, IRCC’s concerns about his residence in Canada during the relevant period were legitimate. Ms. Suleiman had the authority to postpone the Plaintiff’s oath ceremony and the evidence is not reflective of an improper purpose or of a conspiracy.
4. Alleged Damages: The Defendant argues that the Plaintiff has not suffered any damages or harm through the actions of IRCC. The evidence does not support a claim that IRCC officials acted in bad faith or maliciously. They are not liable for the good-faith exercise of their duties in the course of their employment. Further, there is no evidence of any infringement of the Plaintiff’s constitutional rights that would allow the recovery of damages pursuant to the Charter.
[25] On June 28, 2017, the Defendant examined the Plaintiff at the Federal Correctional Institution in Milan, Michigan.
[26] On October 27, 2017, the Plaintiff served two examination questionnaires on the Defendant (for IRCC and CBSA). On November 17, 2017, the CBSA opposed its examination by the Plaintiff because the action did not involve any allegations of torts, wrongdoings or damages caused by the CBSA. The Defendant provided IRCC’s responses to the examination questionnaire on December 17, 2017 and the CBSA’s responses on October 11, 2018.
[27] Counsel for the parties had settlement discussions in early July 2018. On July 18, 2018, the Plaintiff filed a requisition for a pre-trial conference. Shortly thereafter, on July 23, 2018, the Defendants informed the Court and the Plaintiff that they would be presenting a motion for summary judgment.
IV. Motion for Summary Judgment
[28] The Defendant brought this motion for summary judgment on October 15, 2018.
[29] The Defendant submits that this Court should grant summary judgment pursuant to Rule 215 of the Federal Courts Rules on the grounds that:
1. The Plaintiff’s action is statute-barred pursuant to the Ontario Limitations Act because the proceeding was commenced more than two years after the claim was discovered; and
2. The Plaintiff’s action raises no genuine issue for trial as it:
(a) fails to plead the common law of tort in Ontario which is the applicable law governing the action;
(b) fails to properly plead and establish any of the alleged causes of action; and
(c) fails to properly plead and establish any damages.
V. Preliminary Matter – Plaintiff’s Request to strike Certain Affidavits
[30] In support of its motion for summary judgment, the Defendant filed the following affidavits:
- Wayne F. Pratt, Assistant US Attorney for the Eastern Division of Michigan and Chief of the Health Care Fraud Unit;
- Heather Primeau, Director General, Centralized Network, IRCC (previously, Senior Director, Case Review Division, IRCC);
- Rosemarie Redden, Senior Program/Policy Analyst, Integrity Risk Guidance Branch, IRCC (previously, Manager, Citizenship Case Review Unit, IRCC);
- Diane Desrosiers, Unit Manager, Embassy of Canada in Turkey (previously, Director, Immigration Unit, IRCC);
- Maha Suleiman, Citizenship Officer, IRCC;
- Livia Cardamone, former Citizenship Officer, IRCC;
- Anne Raposo, Inland Enforcement Supervisor, CBSA; and
- Carmela Manni, Legal Assistant, Department of Justice Canada.
[31] The Plaintiff argues that the affidavits of Mr. Pratt, Ms. Primeau, Ms. Redden and Ms. Desrosiers should each be struck. With respect to Mr. Pratt’s affidavit, the Plaintiff argues that it is of no help in the motion as Mr. Pratt declares that he was involved in neither the Plaintiff’s file nor the US investigation or prosecution of the Plaintiff. The Plaintiff argues that Mr. Pratt has no personal knowledge of the events as required by Rule 81(1) of the Federal Courts Rules. Similarly, the Plaintiff argues that the affidavits of Ms. Primeau, Ms. Redden and Ms. Desrosiers should be struck because they are not based on the personal knowledge of the affiants.
[32] The Plaintiff relies of Rule 81(1) which provides as follows:
81(1) Content of Affidavits – Affidavits shall be confined to facts within the deponent’s personal knowledge except on motions, other than motions for summary judgment or summary trial, in which statements as to the deponent’s belief, with the grounds for it, may be included.
81 (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s’ils sont présentés à l’appui d’une requête – autre qu’une requête en jugement sommaire ou en procès sommaire – auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l’appui.
[33] At the hearing of this motion, I indicated that I would not grant the Plaintiff’s request to strike the affidavits. My reasons are as follows.
[34] The Plaintiff’s request to strike the affidavits is based on a flawed understanding of the requirement in Rule 81(1) that an affiant must confine the content of their affidavit to facts within their personal knowledge. In Mr. Pratt’s affidavit, he sets out the course of the investigation, prosecution and conviction of the Plaintiff for health care fraud in the United States. He also describes his limited involvement in the process. Mr. Pratt states categorically that the Plaintiff’s assertion that he contacted Ms. Amos is a fabrication as are the Plaintiff’s claims that Mr. Pratt participated in the plea bargaining process. All of these matters are within Mr. Pratt’s personal knowledge and are directly relevant to the Plaintiff’s assertions regarding Mr. Pratt’s alleged personal agenda and involvement in the conspiracy against him, a cornerstone of the Plaintiff’s claim.
[35] Ms. Primeau, Ms. Redden and Ms. Desrosiers each explain the presence of their names in one of the critical email chains the Plaintiff relies on as evidence of a conspiracy at IRCC. Though Ms. Primeau states that she does not remember the Plaintiff’s case specifically, this admission does not affect the admissibility and relevance of her affidavit as it is based on her personal knowledge and is relevant to the allegations made by the Plaintiff. Ms. Primeau details her role at IRCC at the relevant time and how she would have responded to information from the FBI regarding a possible Canadian citizenship issue. She also explains why she would have copied Ms. Desrosiers and Ms. Redden on her correspondence. The same analysis applies to the affidavits of Ms. Desrosiers and Ms. Redden who provide similar explanations.
VI. Legislative Background
[36] The full text of the relevant provisions of the Citizenship Act, RSC 1985, c C-29, as they were in 2010, (2010 Citizenship Act) and the Federal Courts Rules regarding motions for summary judgment are set out in Annex A to this judgment. I also refer to specific provisions of the 2010 Citizenship Act and Federal Courts Rules as required in my analysis of this motion.
[37] Although I have determined that it is not necessary to address the Defendant’s arguments regarding the limitation period applicable to the Plaintiff’s claim (see paragraphs 44-46 of this judgment), I have included the text of the federal and provincial legislation relevant to this issue in Annex A for ease of reference.
VII. Analysis
A. The Law regarding Motions for Summary Judgment
[38] Before addressing the merits of the Defendant’s motion, I will briefly review the law governing motions for summary judgment in the Federal Court. The purpose of summary judgment is to allow the Court to summarily dispense with cases which should not proceed to trial because there is no genuine issue to be tried. In Hryniak v Mauldin, 2014 SCC 7 (Hryniak), the Supreme Court of Canada considered the values underlying the summary judgment process. Although Hryniak involved the interpretation of the Ontario Rules of Civil Procedure, RRO 1990, Reg. 194 (which are worded differently from the Federal Courts Rules relating to summary judgment), the principles set out by the Supreme Court are of general application and remind us that the same goals of conserving judicial resources and improving access to justice, while safeguarding the proper disposition of an action, underlie the applicable Federal Courts Rules (Hryniak at para 35; see also Manitoba v Canada, 2015 FCA 57 at para 11).
[39] Rules 213 to 215 of the Federal Courts Rules govern motions for summary judgment before this Court. The application of those Rules was comprehensively reviewed by Justice MacTavish in Milano Pizza v 6034799 Canada Inc., 2018 FC 1112 at paras 24-41 (Milano Pizza). Rule 215(1) provides that the Court shall grant summary judgment where the judge is satisfied that “there is no genuine issue for trial with respect to a claim or defence”. The Supreme Court described the circumstances in which a judge can make such a determination as follows (Hryniak at para 49):
[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[40] The test on a motion for summary judgment is not whether a party cannot possibly succeed at trial; rather, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial (Milano Pizza at para 33; Canada (Citizenship and Immigration) v Campbell, 2014 FC 40 at para. 14). The onus is on the party seeking summary judgment to meet the test. However, Rule 214 of the Federal Courts Rules requires the responding party to set out specific facts in their response to the motion and to adduce evidence showing that there is a genuine issue for trial (Milano Pizza at paras 34-35). In other words, the responding party must put their best foot forward (Samson First Nation v Canada, 2015 FC 836 at para 94 (Samson First Nation); aff’d 2016 FCA 223 at paras 21, 24).
[41] It is well established that cases involving serious issues of the credibility of witnesses should not be determined on motions for summary judgment. As Justice Mactavish stated (Milano Pizza at para 37):
[37] The jurisprudence is clear that issues of credibility ought not to be decided on motions for summary judgment. Generally, a judge who hears and observes witnesses giving evidence orally in chief and under cross-examination will be better positioned to assess the witnesses’ credibility and to draw the appropriate inferences than a judge who must depend solely on affidavits and documentary evidence: TPG Technology Consulting Ltd. v. Canada, 2013 FCA 183 at para. 3, [2013] F.C.J. No. 836.
[42] The fact that serious issues of credibility should only be determined at trial does not preclude the granting of a motion for summary judgment where there is a conflict in the evidence before the motions judge. Rather, the judge must assess whether the issue is one of credibility.
[43] Finally, I am mindful of the fact that I must proceed with care in considering the Defendant’s motion for summary judgment as the granting of the motion would dispose of the Plaintiff’s action without providing the opportunity to present evidence at a full trial. Summary judgment should only be granted in the clearest of cases where the Court is satisfied that a trial on the issue(s) is unnecessary (Samson First Nation at para 96).
B. Applicable Limitation Period
[44] The Defendant correctly asserts that this Court may grant summary judgment on the basis of an expired limitation period (Warner v Canada, 2019 FC 329, at para 18; see also Riva Stahl GmbH v Combined Atlantic Carriers GmbH, [1999] FCJ No 762, 243 NR 183). The Defendant reiterates its position that the Plaintiff’s claim is statute-barred in whole or in part because the incident that forms the basis of the claim occurred in Etobicoke, Ontario on September 10, 2010 when he was prevented from taking the citizenship oath. Any consequences that flowed therefrom were immediately or reasonably discoverable. The Defendant argues that a combination of section 32 of the Crown Liability and Proceedings Act, subsection 39(1) of the Federal Courts Act and sections 4 and 5 of the Ontario Limitations Act result in a two-year limitation period for the Plaintiff’s claim. As a result, the Plaintiff filed his Statement of Claim almost four years after the expiry of the applicable limitation period.
[45] The Plaintiff disagrees with the Defendant’s analysis of the limitation period applicable to his claim, arguing that the claim arises otherwise than in a province and that the applicable limitation period is six years after his cause of action arose (section 32 of the Crown Liability and Proceedings Act and subsection 39(2) of the Federal Courts Act). The Plaintiff argues that his claim did not arise in a province as his citizenship application was first reviewed in Nova Scotia and then sent to Ontario where he resided. He also relies on the communication between an IRCC official in Canada and Ms. Amos, the FBI agent at the US embassy in Canada, as an international event which gave rise to a series of actions by IRCC and CBSA officials.
[46] For the reasons set out in the next section of this judgment, I am satisfied that the Plaintiff’s action raises no genuine issue for trial and that the Defendant’s motion will be granted. In my view, this is a clear case in which summary judgment should be granted in favour of the Defendant. Therefore, I will not address the issue of whether the Plaintiff’s claim is also statute-barred.
C. No Genuine Issue for Trial
[47] I have organized my analysis in this section as follows:
(1) Brief Summary of the Parties’ Positions
(2) Applicable Provisions of the 2010 Citizenship Act
(3) Identification of the Basis of the Plaintiff’s Claim
(4) The Evidence
(5) Torts of Misfeasance in Public Office and Conspiracy: Analysis Against the Evidence
(6) Damages
(7) Charter Arguments
(1) Brief Summary of the Parties’ Positions
[48] The Defendant submits that the Plaintiff’s claims of conspiracy and misfeasance by IRCC and CBSA officials to deny him Canadian citizenship are a distortion of plain facts and two administrative email chains from 2010 and 2015. The Defendant argues that the Plaintiff failed to specify any actionable torts in his Statement of Claim, leaving the Defendant to guess at what is in issue. In the Defendant’s view, the only potential actionable wrongs that can be gleaned from the Statement of Claim are tortious misfeasance in public office and conspiracy spanning the period from September 2010 to June 2015. The Defendant also argues that the Plaintiff failed to properly plead or prove the existence of compensable damages, stating that he presented “no material facts supporting a claim for damages and limited himself to conclusory assertions that damages exist”. Accordingly, there is no genuine issue for trial relating to claims of actionable wrongs and compensable damages.
[49] The Plaintiff submits that his claim is based on the intentional decisions, actions and omissions of IRCC and CBSA officials to prevent him from taking his citizenship oath on September 10, 2010, all at the prompting of an FBI agent. In oral argument, the Plaintiff stated that the basis of his claim is that of misfeasance in public office as he had the right to take the oath of citizenship and was unlawfully and deliberately precluded from doing so. He argues that there are serious credibility issues at stake in this matter that require a full trial. In his written and oral submissions in this motion, the Plaintiff raised the issue of negligence on the part of public officials and argued that the June 11, 2015 amendments to the Citizenship Act did not affect his acquired citizenship rights. With respect to damages, he alleges that different damages appeared in 2010, 2013 and 2015, most of them unknown to him or discovered much later. Finally, the Plaintiff states that, as a de jure Canadian citizen, he was entitled to the benefit of the rights and protections of sections 6, 7 and 15 of the Charter. The Plaintiff submits that there is a genuine issue to be tried and that this motion should not be granted.
(2) Applicable Provisions of the 2010 Citizenship Act
[50] Sections 5(1) and 17 of the 2010 Citizenship Act are critical to the proper analysis of IRCC’s actions in 2010 and read as follows:
Grant of citizenship
Attribution de la citoyenneté
5 (1) The Minister shall grant citizenship to any person who
5 (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
(a) makes application for citizenship;
a) en fait la demande;
(b) is eighteen years of age or over;
b) est âgée d’au moins dix-huit ans;
(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner:
c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante:
(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
(i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent,
(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;
(d) has an adequate knowledge of one of the official languages of Canada;
d) a une connaissance suffisante de l’une des langues officielles du Canada;
(e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté;
(f) is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.
f) n’est pas sous le coup d’une mesure de renvoi et n’est pas visée par une déclaration du gouverneur en conseil faite en application de l’article 20.
…
…
Suspension of processing of application
Suspension de la procédure d’examen
17 Where a person has made an application under this Act and the Minister is of the opinion that there is insufficient information to ascertain whether that person meets the requirements of this Act and the regulations with respect to the application, the Minister may suspend the processing of the application for the period, not to exceed six months immediately following the day on which the processing is suspended, required by the Minister to obtain the necessary information.
17 S’il estime ne pas avoir tous les renseignements nécessaires pour lui permettre d’établir si le demandeur remplit les conditions prévues par la présente loi et ses règlements, le ministre peut suspendre la procédure d’examen de la demande pendant la période nécessaire — qui ne peut dépasser six mois suivant la date de la suspension — pour obtenir les renseignements qui manquent.
[51] The Plaintiff states in his Statement of Claim that he was granted citizenship on April 30, 2010 by the citizenship judge. This is incorrect. The role of the citizenship judge was to consider whether the Plaintiff’s application for citizenship met the requirements of the 2010 Citizenship Act and to approve or not approve the application and notify the Minister accordingly (subss. 14(1) and (2) of the 2010 Citizenship Act). The right to grant citizenship to the Plaintiff was reserved to the Minister (s. 5 of the 2010 Citizenship Act).
[52] The Plaintiff argues in his submissions in this motion that IRCC officials, namely Ms. Suleiman, had no right to prevent him from taking his oath of citizenship on September 10, 2010. This too is incorrect. The Minister was permitted to suspend the processing of the Plaintiff’s application for a period of six months if the Minister was of the opinion that there was insufficient information to ascertain whether the Plaintiff met the requirements of the legislation (s. 17 of the 2010 Citizenship Act). Ms. Suleiman, acting as the Minister’s representative, had the authority to suspend the processing of the Plaintiff’s application by preventing him from taking the oath to enable IRCC to obtain more information.
[53] The Plaintiff questions the bona fides of Ms. Suleiman’s actions in this regard and I will discuss that question later in this judgment. However, the Plaintiff’s arguments that Ms. Suleiman acted without authority and that “the Minister had but one duty” which was to grant him Canadian citizenship do not accurately reflect the law.
(3) Identification of the Basis of the Plaintiff’s Claim
[54] A plaintiff is required to plead the constituent elements of each cause of action or legal ground raised (Al Omani v Canada, 2017 FC 786 at para 23 (Al Omani)). The “who, when, where, how and what” that gave rise to the alleged liability of the defendant must be set out. In this case, the Plaintiff’s Statement of Claim does not refer to a specific actionable tort. His claim is premised on the alleged gross misconduct of IRCC and CBSA officials in conspiring with US officials, namely Mr. Pratt and Ms. Amos, to deny him Canadian citizenship. As stated by the Defendant and agreed by the Plaintiff in oral argument, it appears that the Plaintiff’s claim is best framed as a claim against the Defendant due to misfeasance in public office by named IRCC and CBSA officials. I will also address the tort of conspiracy as the theme of an extended plot against the Plaintiff recurs throughout his written materials.
[55] The tort of misfeasance in public office is an intentional tort. In Odhavji Estate v Woodhouse, 2003 SCC 69 at paragraph 23 (Odhavji Estate), the Supreme Court set out the two constituent elements of the tort:
In my view, there are two such elements. First, the public officer must have engaged in deliberate and unlawful conduct in his 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.
[56] The Supreme Court’s reasoning in Odhavji Estate has been followed by this Court on many occasions, emphasizing that the essential question to be determined is not whether the officer has unlawfully exercised a power they possess but whether the officer’s alleged misconduct is deliberate and unlawful (Odhavji Estate at para 24; see also Brazeau v Canada (Attorney General), 2015 FC 151 at para 43).
[57] As Justice Roy of this Court stated in Al Omani at paragraph 85, the tort of conspiracy can be established on two grounds. A plaintiff can claim: (i) a conspiracy to injure in that two or more people work together in agreement using lawful or unlawful means for the predominant purpose of injuring the plaintiff, who is in fact injured; or (ii) a conspiracy of unlawful acts by two or more people working together in agreement to engage in unlawful conduct directed toward the plaintiff that they ought to know is likely to cause injury to the plaintiff, who is in fact injured.
[58] In his written and oral submissions in response to this motion, the Plaintiff alleges negligence or abuse of process as a basis for his claim. However, he did not plead the case on this basis in the Statement of Claim. The Plaintiff unequivocally asserted that IRCC and CBSA officials took deliberate action over a 5-year period to deny him citizenship. It is not open to him, in opposing this motion, to attempt to modify the basis of his claim.
[59] In addition and again in response to the Defendant’s motion, the Plaintiff argues that, due to the transitional provisions enacted with the amendments to the Citizenship Act in June 2015, his citizenship rights were unaffected by his US criminality. This too is a new argument and cannot be raised for the first time in this motion. I would only observe that, if the Plaintiff’s arguments are correct, and I make no finding in this regard, he has effectively removed a substantive element of his arguments in support of his initial claim.
(4) Evidence
[60] The evidence on which the Plaintiff bases his claims of misfeasance and conspiracy consists primarily of two email chains among Ms. Amos of the FBI, and IRCC and CBSA officials.
[61] The first email chain can be summarized as follows:
September 7, 2010: Michael Watts (Director, International Policy Coordination, IRCC) responds to an email (not included) from Katrina Amos (FBI agent at the US embassy) stating that the most appropriate person to contact would be Heather Primeau (Senior Director, Case Review Division, IRCC).
September 7, 2010: Ms. Amos emails Ms. Primeau stating she has some information to forward to CIC (now IRCC) regarding an individual seeking citizenship in Canada and the US. Ms. Amos states:
However, the individual has been indicted and arrested for Health Care Fraud in the US. It is highly likely that he will go to Canada if released on bail and not return to stand trial.
Ms. Amos states that she will send the information by letter to IRCC.
September 7, 2010: Ms. Primeau emails Ms. Amos (copied to Chantale Larocque, Rosemarie Redden, Diane Desrosiers) stating that Ms. Amos can address the letter to her.
September 9, 2010: Ms. Amos emails Ms. Primeau (same individuals copied) stating:
Here is the information