Khadr v. Canada, (2014) 466 F.T.R. 244 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: September 04, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 466 F.T.R. 244 (FC);2014 FC 1001

Khadr v. Can. (2014), 466 F.T.R. 244 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. NO.003

Omar Ahmed Khadr (plaintiff) v. Her Majesty the Queen in Right of Canada (defendant)

(T-536-04; 2014 FC 1001; 2014 CF 1001)

Indexed As: Khadr v. Canada

Federal Court

Mosley, J.

November 4, 2014.

Summary:

The plaintiff filed a motion, seeking an order pursuant to rules 75(1), 76, 77, 78, 79 and 201 of the Federal Courts Rules, granting leave to: 1. further amend the Statement of Claim; and 2. file the Amended Amended Amended Fresh as Amended Statement of Claim. In the proposed amended claim, the plaintiff sought $20,000,000 in damages, including compensatory damages for negligent investigation, conspiracy and misfeasance in public office; Charter damages pursuant to s. 24(1) for breaches of ss. 7, 10(a), 10(b) and 12 of the Charter; punitive and aggravated damages; and special damages.

The Federal Court granted the motion in part. The court allowed the plaintiff to file the Amended Amended Amended Fresh as Amended Statement of Claim with two modifications. First, paragraph 58 was struck in its entirety. Second, the word "omissions" in paragraph 60 was struck.

Equity - Topic 5006

Merger - Application of doctrine - The plaintiff filed a motion, seeking leave to: 1. further amend the Statement of Claim; and 2. file the Amended Amended Amended Fresh as Amended Statement of Claim - The proposed amended claim sought $20,000,000 in damages, including compensatory damages for negligent investigation, conspiracy and misfeasance in public office; Charter damages pursuant to s. 24(1) for breaches of ss. 7, 10(a), 10(b) and 12 of the Charter; punitive and aggravated damages; and special damages - The defendant (Canada) contended that the proposed conspiracy claim merged with the other causes of action raised by the plaintiff, as it added no further liability against the defendant that was not already covered by the alleged torts of misfeasance in public office and negligent investigation and the alleged Charter breaches - The Federal Court held that the plaintiff's plea of conspiracy was permissible - The plaintiff's plea of conspiracy shared the same factual basis as his other claims, as required by rule 201 - It was difficult to see how the defendant would suffer prejudice not compensable by costs if the claim were allowed to proceed - The impugned amendments would not hamper the court's consideration of the action on its merits - The defendant's invocation of the doctrine of merger failed - The plaintiff's amendments did not allege a conspiracy to commit a tort or Charter breach already disclosed in his pleadings - The torts forming the object of the conspiracy were distinct from those raised as alternative causes of action - See paragraphs 7 to 17.

International Law - Topic 2209

Sovereignty - Incidents of - Immunity - When applicable - The plaintiff filed a motion, seeking leave to: 1. further amend the Statement of Claim; and 2. file the Amended Amended Amended Fresh as Amended Statement of Claim - The proposed amended clam sought $20,000,000 in damages, including compensatory damages for negligent investigation, conspiracy and misfeasance in public office; Charter damages pursuant to s. 24(1) for breaches of ss. 7, 10(a), 10(b) and 12 of the Charter; punitive and aggravated damages; and special damages - The defendant (Canada) contended that the plaintiff's claim of unlawful means conspiracy offended the principle of sovereign immunity by indirectly impleading the United States government in these proceedings - The Federal Court held that the doctrine of sovereign immunity did not bar the impugned amendments - The plaintiff's claim of conspiracy did not fall within the traditional ambit of the doctrine of sovereign immunity - The defendant failed to show how a potential judgment of the court holding Canada liable in conspiracy might affect any legal interest of the U.S. government - There was no indication that such a judgment might impose any liability on the United States, a non-party to the action, and lead to enforcement against its assets - The ability of the United States to freely perform its sovereign functions would not be hindered in any way - The court would have to deem the conduct of U.S. officials unlawful in order to hold Canada liable under unlawful means conspiracy - However, a court could evaluate the behaviour of a foreign state for purposes that did not affect its legal interests - See paragraphs 29 to 44.

Practice - Topic 1989

Pleadings - Particulars - Particulars of particular matters - Misfeasance in or abuse of public office - The plaintiff filed a motion, seeking leave to: 1. further amend the Statement of Claim; and 2. file the Amended Amended Amended Fresh as Amended Statement of Claim - The proposed amended claim sought $20,000,000 in damages, including compensatory damages for negligent investigation, conspiracy and misfeasance in public office; Charter damages pursuant to s. 24(1) for breaches of ss. 7, 10(a), 10(b) and 12 of the Charter; punitive and aggravated damages; and special damages - The defendant argued that several paragraphs of the Amended Amended Amended Fresh as Amended Statement of Claim offended fundamental principles of pleading - It took issue with paragraphs 58, 59 and 60, which plead misfeasance in public office - The Federal Court concluded that in paragraphs 59 and 60, the plaintiff plead material facts that were sufficiently particularized to ground misfeasance in public office, in accordance with rules 174 and 181 - However, paragraph 58 did not contain enough particulars to merit inclusion - Plaintiffs had to particularize the identity of the impugned officials, the acts committed by those officials, and their state of mind - The plaintiff did not satisfy those requirements in paragraph 58 - That paragraph did not contain sufficient particulars to give notice of the case to be met - See paragraphs 48 to 51.

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice or presumed prejudice - What constitutes - [See Equity - Topic 5006 ].

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - [See Equity - Topic 5006 ].

Practice - Topic 2120

Pleadings - Amendment of pleadings - Statement of claim - General - The plaintiff filed a motion, seeking leave to: 1. further amend the Statement of Claim; and 2. file the Amended Amended Amended Fresh as Amended Statement of Claim - The proposed amended claim sought $20,000,000 in damages, including compensatory damages for negligent investigation, conspiracy and misfeasance in public office; Charter damages pursuant to s. 24(1) for breaches of ss. 7, 10(a), 10(b) and 12 of the Charter; punitive and aggravated damages; and special damages - The defendant (Canada) argued that paragraphs 59 and 60 of the Amended Amended Amended Fresh as Amended Statement of Claim were impermissibly broad and did not give it a chance to raise a meaningful defence - The Federal Court disagreed - The court stated that "Contrary to the Defendant's suggestion, the Plaintiff never states that Canadian officials committed every act outlined in paragraphs 29 to 56, which include various acts done by the United States. The Plaintiff rather accuses Canadian officials of interrogating him with the knowledge that he had been tortured by the Americans, 'as detailed in paragraphs 29 to 56.' ... It is quite obvious that the Plaintiff does not allege that the Defendant's agents committed acts which his pleadings explicitly impute to U.S. personnel. ... Paragraphs 59 and 60 might not be a paragon of clarity, yet they should be allowed because they disclose the case to be met to the Defendant ... I see only a minor problem with paragraph 60: the inclusion of the word 'omissions'. ... Striking this word would remove any ambiguity from paragraph 60" - See paragraphs 52 to 53.

Practice - Topic 2120

Pleadings - Amendment of pleadings - Statement of claim - General - The plaintiff filed a motion, seeking leave to: 1. further amend the Statement of Claim; and 2. file the Amended Amended Amended Fresh as Amended Statement of Claim - The proposed amended claim sought $20,000,000 in damages, including compensatory damages for negligent investigation, conspiracy and misfeasance in public office; Charter damages pursuant to s. 24(1) for breaches of ss. 7, 10(a), 10(b) and 12 of the Charter; punitive and aggravated damages; and special damages - Paragraph 55(i) of the Amended Amended Amended Fresh as Amended Statement of Claim alleged that the defendant (Canada) knew that the United States committed criminal offences against the plaintiff, in contravention of the Geneva Conventions Act of Canada (GCA) and the Crimes against Humanity and War Crimes Act of Canada (CHWCA) - The defendant objected to this amendment for two reasons - First, it invited a Canadian court to assume jurisdiction over U.S. acts - Second, there was no evidence that American officials had been convicted of criminal offences pursuant to the GCA or the CHWCA - The Federal Court stated that "The most that can be said against this subparagraph is that it appears unnecessary for the conspiracy claim. If the Plaintiff establishes Canada's knowledge of the other unlawful acts allegedly committed by U.S. officials - including torture, as pleaded at subparagraph 55(l) - then he might succeed without having to qualify those acts as crimes under the GCA or CHWCA. However, the Rules do not require this Court to determine whether every segment of a pleading is necessary to making out a cause of action on a motion to amend. Pleadings are struck out only if they disclose no reasonable cause of action. Clearly, a finding that Canada knew about U.S. conduct which violated the GCA or CHWCA would assist the Plaintiff in making out conspiracy. Therefore, this subparagraph does not offend any established principle of pleadings" - See paragraphs 61 to 63.

Torts - Topic 5702

Conspiracy - General - Pleadings - The plaintiff filed a motion, seeking leave to: 1. further amend the Statement of Claim; and 2. file the Amended Amended Amended Fresh as Amended Statement of Claim - The proposed amended claim sought $20,000,000 in damages, including compensatory damages for negligent investigation, conspiracy and misfeasance in public office; Charter damages pursuant to s. 24(1) for breaches of ss. 7, 10(a), 10(b) and 12 of the Charter; punitive and aggravated damages; and special damages - The defendant (Canada) attacked paragraphs 54(a) and 54(b) of the Amended Amended Amended Fresh as Amended Statement of Claim - Those paragraphs referred to statements made by the Prime Minister and his representative - In the defendant's view, they did not contribute to any cause of action and simply added colour to the claim of conspiracy - The Federal Court stated that "The Plaintiff presents the Prime Minister's statements as acts committed by Canada in furtherance of its conspiracy to violate his rights. ... It is not plain and obvious that these amendments add nothing to the claim of conspiracy. For instance, it is possible that a court might find that these statements contributed to his continued detention by turning popular opinion against him at a time when several groups were publicly advocating for his repatriation. A court might also view the statements as evidence of the Defendant's intention to harm the Plaintiff, another necessary element of the conspiracy tort. In light of the high threshold for striking out set by the 'plain and obvious' test and the generous approach reserved for amendments, I allow these subparagraphs to stand" - See paragraphs 56 to 59.

Cases Noticed:

Minister of National Revenue v. Canderel Ltd., [1994] 1 F.C. 3; 157 N.R. 380 (F.C.A.), refd to. [para. 6].

Francoeur et al. v. Minister of National Revenue, [1992] 2 F.C. 333; 140 N.R. 389 (F.C.A.), refd to. [para. 6].

Seanix Technology Inc. v. Synnex Canada Ltd. et al. (2005), 270 F.T.R. 183; 2005 FC 243, refd to. [para. 6].

Valentino Gennarini SRL v. Andromeda Navigation Inc. (2003), 232 F.T.R. 256; 2003 FCT 567, refd to. [para. 6].

Scannar Industries Inc. et al. v. Minister of National Revenue (1994), 172 N.R. 313 (F.C.A.), refd to. [para. 6].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, folld. [para. 11].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Ward v Lewis, [1955] 1 All E.R. 55 (C.A.), refd to. [para. 14].

Dominion of Canada General Insurance Co. v. MD Consult Inc. et al., [2013] O.T.C. Uned. 1347; 2013 ONSC 1347, folld. [para. 15].

Pro-Sys Consultants Ltd. et al. v. Microsoft Corp. et al., [2013] 3 S.C.R. 477; 450 N.R. 201; 2013 SCC 57, refd to. [para. 19].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 21].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 24].

Kuwait Airways Corp. v. Iraq (Republic) et al., [2010] 2 S.C.R. 571; 407 N.R. 145; 2010 SCC 40, refd to. [para. 30].

Reference Re Canada Labour Code and State Immunity Act (Can.), [1992] 2 S.C.R. 50; 137 N.R. 81, refd to. [para. 30].

Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269; 292 N.R. 250; 164 O.A.C. 354; 2002 SCC 62, refd to. [para. 30].

Kazemi Estate v. Islamic Republic of Iran, [2014] 3 S.C.R. 176; 463 N.R. 1; 2014 SCC 62, refd to. [para. 30].

United Mexican States v. Labour Relations Board (B.C.) et al., [2014] B.C.T.C. Uned. 54; 2014 BCSC 54, refd to. [para. 31].

Compania Naviera Vascongado v. "Cristina" (The), [1938] A.C. 485 (U.K.H.L.), refd to. [para. 32].

Sultan of Johore v. Abubakar, [1952] 1 All E.R. 1261 (Singapore P.C.), refd to. [para. 32].

Buttes Gas & Oil Co v. Hammer (No 2), [1975] Q.B. 557 (Eng. Ch. Div.), refd to. [para. 33].

Buttes Gas & Oil v. Hammer (No 3), [1982] A.C. 888 (U.K.H.L.), refd to. [para. 33].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 40].

Khadr v. Canada (Minister of Justice) et al., [2008] 2 S.C.R. 125; 375 N.R. 47; 2008 SCC 28, refd to. [para. 40].

Rasul v. Bush (2004), 542 U.S. 466, refd to. [para. 41].

Hamdan v. Rumsfeld (2006), 548 U.S. 557, refd to. [para. 41].

Boumediene v. Bush (2008), 553 U.S. 723, refd to. [para. 41].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 42].

Husayn (Abu Zubaydah) v. Poland (No. 7511/13) (Eur. Ct. of Human Rights), refd to. [para. 43].

Simon v. Canada (2011), 410 N.R. 374; 2011 FCA 6, refd to. [para. 47].

Weatherall v. Canada (Attorney General), [1989] 1 F.C. 18; 86 N.R. 168 (C.A.), refd to. [para. 47].

Merck & Co. v. Brantford Chemicals Inc., [2004] N.R. Uned. 101; 2004 FCA 223, refd to. [para. 47].

Merchant Law Group et al. v. Canada Revenue Agency et al. (2010), 405 N.R. 160; 2010 FCA 184, refd to. [para. 50].

Adventure Tours Inc. v. St. John's Port Authority (2011), 420 N.R. 149; 2011 FCA 198, refd to. [para. 50].

Pembina County Water Resource District et al. v. Manitoba et al., [2008] F.T.R. Uned. A31; 2008 FC 1390, refd to. [para. 57].

Statutes Noticed:

State Immunity Act, R.S.C. 1985, c. S-18, sect. 3(1), sect. 5 [para. 34].

Counsel:

John Kingman Phillips and Patrick Senson, for the plaintiff;

Barney Brucker and Jessica Winbaum, for the defendant.

Solicitors of Record:

Phillips Gill LLP, Toronto, Ontario, for the plaintiff;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the defendant.

This motion was heard on September 4, 2014, at Toronto, Ontario, before Mosley, J., of the Federal Court, who delivered the following decision on November 4, 2014.