Vancouver, British Columbia, March 27th, 2006
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
CHEN, Tsai-Cheng, PENG, Sheng-Chien, WU, Chin-Chung, LIN, Chin Yuan,
KUO, Nai Wei, WANG, Hsiu Shan, HSIEH, Tze-En, HUNG, Mei Ying, KO, Ching Yi,
KO, Yu Fan, KO, Yu Chu, HSU, Tase Yen, CHANG, Lien Fang, CHEN, Yuan Hsing,
LIN, Cheng-I, CHEN, Ping-Hung,HSIEH, Tsung-Jen, CHEN, Yueh-Yin,
FANG CHANG, Shu-Min,PUI, Kwan Kay, LAI, Yung-Liang, CHANG, Ting Hui,
CHANG, Fang Ming, LEI, Manuel Joao, LIN, Yung Nien, HUANG HSU, Li-Mei,
FANG, Ming-Tau, LIU, Kun Yung, CHEN, Kun-Wen, TSENG, Hung Yu,
CHANG, Mao, MENG, Lin Yu, TAI, Yu-Hu, YANG, Cheng-Kang, CHEN, Wen Shing,
YU, Chung-Wen, YU, Wei-Chung, LIN, Shih Chun, CHANG, Lei-Fa,
CHAO, Lin Shu, and HSU, Pao Hua
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER ANDORDER
[1] This is a motion by the Defendants for further and better particulars in respect of the Plaintiffs' Consolidated Statement of Claim dated May 9, 2005, and for an extension of time to serve and file a statement of defence.
Background facts
[2] On November 8, 2004, Justice James Russell ordered that the applications for judicial review in Court Nos. IMM-577-04 and IMM-1467-04 be treated and proceeded with as actions pursuant to subsection 18.4(2) of the Federal Courts Act, and that the two converted proceedings be consolidated with two other actions in Court Nos. IMM-576-04 and IMM-10140-03: see Chen v. Canada(Minister of Citizenship and Immigration), [2005] 3 F.C. 82. Leave was also granted to the parties to amend their pleadings to reflect the joinder and consolidation. The Plaintiffs subsequently filed a Consolidated Statement of Claim (the Claim), which is the subject of this motion for particulars.
[3] At the time that the proceedings were converted and consolidated by Justice Russell, the relief being sought by the applicants in the judicial review applications was fairly well defined and essentially declaratory in nature. The focus of the review was on the Permanent Resident Card (PR Card) process and whether there has been undue delay in completing PR Card applications. The Court was being asked to compel the Minister of Citizenship and Immigration (the Minister) to process the applicants' applications for permanent residence cards by taking into account whether they had the intent to abandon Canada as their place of permanent residence. The applications also raised the issue of whether the provisions of the Immigration and Refugee Protection Act which deal with residency requirements and obligations are being applied in a retroactive manner that is contrary to sections 7 and 15 of the Charter.
[4] The proceedings have now ballooned into a claim raising a panoply of causes of action, including: (1) breach of statutory rights, (2) public misfeasance, (3) abuse of authority and process, (4) conspiracy to deny to the Plaintiffs' statutory and constitutional rights, (5) interference with contractual obligations and inducing breach of contract, (6) infliction of mental suffering, (7) misrepresentation, (8) negligence by the Defendants in the exercise of their statutory duty, (9) violations of the Plaintiffs' rights under the Magna Carta and (10) breaches of sections 7, 8 and 15 of the Charter. The breath and scope of the Plaintiffs' action do not appear to have been contemplated by Justice Russell when he concluded as follows at paragraph 22 of his decision:
Taking into account the relief that the Applicants are seeking in the judicial review applications - much of it declaratory in nature (as set out in the applications and their further memoranda of argument) - there are evidentiary gaps and ambiguities in the present record that, in my view, render it inadequate for a satisfactory consideration of the grounds of complaint and the availability of the remedies sought ...
[5] Be that as it may, the Defendants have now moved for the particulars of the Plaintiffs' fairly voluminous pleading.
Analysis
[6] The Defendants submit that the Plaintiffs have failed to particularize essential allegations in their Claim such that the Defendants are unable to discern the case they have to meet. The Plaintiffs counter that the Defendants' request for particulars is nothing more than a delaying tactic, and that the Defendants know full well, from "the avalanche of the record", the nature of claim being advanced by the Plaintiffs.
[7] The Defendants have established that a request for particulars was made, but have adduced no affidavit evidence to show that particulars are needed. Although evidence of need is usually required on a motion for particulars, where it is clear on the face of a pleading that particulars are lacking, particulars may nonetheless be ordered. It is ultimately for the Court to decide on the record and on the available facts before it whether the necessity for particulars exists.
[8] When dealing with a motion involving the sufficiency of a pleading, the Court should bear in mind that the purpose of pleadings is to define the matters at issue between the parties. The purpose of particulars is somewhat different, in that they are meant to provide the opposing party with sufficient information of the allegations being advanced so that it might know the case to be met at trial and be able to prepare a full and meaningful pleading in response. Particulars are given to make clear what is unclear, and to allow a party to determine whether the pleading discloses a cause of action, or whether it might be characterized as embarrassing. If the pleading is not good as a matter of law, the particulars cannot save it. If it is not good as a matter of pleading, the particulars will not improve it.
[9] The Defendants have dissected the Claim in some detail to identify what they view as deficiencies in the pleading, particularly in relation to the constituent elements of some of the allegations asserted. By way of example, the Defendants point to paragraph 2(e) of the Claim where the Plaintiffs allege that the Defendants refused to allow the Plaintiffs to return to Canada, actively confiscated their records of landing, and ordered the airlines not to board the Plaintiffs with their record of landing. In one fell swoop, the Plaintiffs assert that these actions constitute an
abuse of authority, public misfeasance, conspiracy to deny the plaintiff's statutory and constitutional rights, interference with contractual obligations and inducing breach of contract, a denial of ss. 7, 8 and 15 of the Charter, and a breach of statutory duty and misrepresentation.
[10] The Defendants complain that the Plaintiffs do not indicate which of the alleged acts (confiscation of records, refusal to allow the Plaintiffs to return to Canada, or ordering the airlines not to board the Plaintiffs) apply to which of the alleged breaches and/or which Plaintiffs. The Defendants also submit that the Plaintiffs failed to plead the constituent elements of the various allegations, such as foreseeable harm in relation to public misfeasance, to provide the facts that define the contractual obligations, or the inducement to breach to which they are referring in paragraph 2(e)(iv). The Defendants list further deficiencies, such as the Plaintiffs' failure to provide any facts or plead the necessary elements of the alleged Charter breaches in paragraph 2(e)(v), to identify the statutory duties they allege have been breached in paragraph 2(e)(vi), to identify the statutory duty that is the source of the alleged negligence, and to plead the requisite elements for negligence in paragraph 2(e)(vii), or any facts relating to the alleged misrepresentation in paragraph 2(e)(viii).
[11] Although it is urged by the Plaintiffs that the Defendants must know the true facts of the case from an "avalanche" of documents produced in earlier proceedings, this objection is misconceived. Each party is entitled to know the outline of the case that his adversary is going to make against him, and to bind him down to a definite story. A defendant should not be left guessing at what a plaintiff is alleging. The Plaintiffs were required to specify the what, the whom, the how, and the when, unless they could show, which they did not attempt to do, that the requisite information was within the Defendants' exclusive knowledge.
[12] On the face of the pleading, I am satisfied that the Defendants have made out a case for particulars. Particulars are required for a number of paragraphs identified in the Defendant's Request for Particulars, including the following, which illustrate the deficiencies:
(a) At paragraph 3(b)(i), there is no indication of what s. 15 right the Defendants have allegedly breached, nor have the Plaintiffs plead the necessary elements of a s. 15 claim, such as an analogous or comparator group. Bald allegations that the Plaintiffs' s.15 rights have been breached are simply not sufficient.
(b) At paragraph 3(e), the Plaintiffs allege that their right to access fair and independent judiciary has been breached due to ultra vires and unconstitutional regulations, however the Plaintiffs do not indicate what regulations they rely upon in support of their assertion. If the constitutionality of regulations is to be at issue in this action, they should be identified.
(c) At paragraph 12, the Plaintiffs allege that they are unable to exercise their right of appeal because they were deprived of their rights. The Plaintiffs do not identify the who, the what or the how. The Defendants are entitled to know whether the Plaintiffs allege that their appeal rights were deprived by statute, or by virtue of alleged abuse of authority or misfeasance by a public official. If the latter, the Plaintiffs should be providing particulars of the alleged abuses and who is alleged to have committed the abuses.
(d) At paragraph 12(b), the Plaintiffs allege that the Defendants instructed commercial airlines under threat of sanctions not to allow the Plaintiffs to board commercial airlines on the basis of their records of landing. The Plaintiffs do not provide, however, the required particulars with respect to those instructions, such as who provided them, when they were provided, or how those instructions were issued.
(e) At paragraphs 12(e) and (f), the Plaintiffs claim that they were prejudiced by the Minister's "failure to process in a timely manner and were further prejudiced by the Minister's misrepresentations". Allegations of misrepresentation, which is akin to fraud, should be pled with considerable specificity. The essential elements of the tort of misrepresentation are: (i) material misrepresentation, (ii) reasonable reliance, and (iii) damages proximately caused by the misrepresentation. Particulars of the misrepresentations, the date they were made, and the circumstances of the misrepresentations should be provided, as well as the identity of the person making the representations.
[13] The Plaintiffs are of the view that the Defendants' request for particulars is over-reaching, improper and an abuse of process. I disagree. By drafting an imprecise, disjointed, and muddled pleading, and by failing to properly plead the essential elements of a number of causes of action, the Plaintiffs have only themselves to blame. They should have anticipated that there would be a significant riposte from the Defendants.
ORDER
THIS COURT ORDERS that
1. The following particulars, as listed in the Defendants' Request for Particulars dated July 6, 2005, need not be provided by the Plaintiffs on the grounds that it is not clear on the face of the Claim that particulars are needed:
(a) Paragraph 1 (a) - Items (v) and (vi);
(b) Paragraph 1(d);
(c) Paragraph 2(d) - Item (iii) - "the relevant principle(s) of fundamental justice breached", and Item (vi);
(d) Paragraph 3 - No particulars need be provided regarding section 52 of the Constitution Act, 1867;
(e) Paragraph 3(b)(ii) - Items (ii) and (iii);
(e) Paragraph 3(c) - ...and the relevant principles of fundamental justice;
(f) Paragraph 3(e) - Item (i) and (iv);
(g) Paragraphs 3(f)(i) & (ii) -Items (ii) and (iii);
(h) Paragraph 3(g);
(i) Paragraph 3(i);
(j) Paragraph 4(a);
(k) Paragraph 4(b);
(l) Paragraph 5;
(m) Paragraph 7;
(n) Paragraph 9;
(o) Paragraph 11;
(p) Paragraph 12 (d);
(q) Paragraph 15 (iv);
(r) Paragraph 16;
(s) Paragraph 19;
(t) Paragraph 21;
(u) Paragraph 25;
(v) Paragraph 28(b);
(w) Paragraph 28(c); and
(x) Paragraph 28(f).
2. The Plaintiffs shall provide the balance of the particulars requested in the Defendants' Request for Particulars dated July 6, 2005 within a time to be agreed to by the parties. In the event the parties cannot agree on a deadline for the provision of particulars, the Plaintiffs shall forthwith requisition a case management conference for the purpose of fixing a deadline.
3. The Defendants are dispensed from the requirement to serve and file a statement of defence pending further order of the Court.
4. Costs of the motion shall be in the cause.
"Roger R. Lafrenière"
Prothonotary
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-577-04
STYLEOF CAUSE: Chen, Tsai-Cheng et al. v. Her Majesty the Queen et al.
PLACE OF HEARING: Toronto, Ontario by way of conference call
DATE OF HEARING: March 6, 2006
REASONS FOR ORDER: Lafrenière P.
APPEARANCES:
| Mr. Lawrence Wong Mr. Rocco Galati
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| Ms. Brenda Carbonell
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SOLICITORS OF RECORD:
| Wong Pederson Law Offices Barristers & Solicitors Vancouver, British Columbia
Galati, Rodrigues & Associates Barristers & Solicitors Toronto, Ontario
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| Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia
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