Docket: A-339-16
Citation: 2018 FCA 46
| CORAM:
|
WEBB J.A.
RENNIE J.A.
GLEASON J.A.
|
| BETWEEN:
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| ZHENHUA WANG AND CHUNXIANG YAN
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| Appellants
(Plaintiffs)
|
| and
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| HER MAJESTY THE QUEEN, OXANA M. KOWALYK (ID MEMBER), SUSY KIM (ID MEMBER), IRIS KOHLER (ID MEMBER), OFFICER O'HARA (CBSA OFFICER), HAL SIPPEL, ERIC BLENKARN, ANDREJ RUSTJA, CBSA OFFICERS, ALL JOHN AND JANE DOE CBSA/CIC OFFICIALS UNKNOWN TO THE PLAINTIFFS, INVOLVED IN THE ARREST, DETENTION AND CONTINUED DETENTION OF THE PLAINTIFFS, MINISTER OF CITIZENSHIP AND IMMIGRATION, ATTORNEY GENERAL OF CANADA
|
| Respondents
(Defendants)
|
Heard at Toronto, Ontario, on February 28, 2018.
Judgment delivered from the Bench at Toronto, Ontario, on February 28, 2018.
| REASONS FOR JUDGMENT OF THE COURT BY:
|
GLEASON J.A.
|
Date: 20180228
Docket: A-339-16
Citation: 2018 FCA 46
| CORAM:
|
WEBB J.A.
RENNIE J.A.
GLEASON J.A.
|
| BETWEEN:
|
| ZHENHUA WANG AND CHUNXIANG YAN
|
| Appellants
(Plaintiffs)
|
| and
|
| HER MAJESTY THE QUEEN, OXANA M. KOWALYK (ID MEMBER), SUSY KIM (ID MEMBER), IRIS KOHLER (ID MEMBER), OFFICER O'HARA (CBSA OFFICER), HAL SIPPEL, ERIC BLENKARN, ANDREJ RUSTJA, CBSA OFFICERS, ALL JOHN AND JANE DOE CBSA/CIC OFFICIALS UNKNOWN TO THE PLAINTIFFS, INVOLVED IN THE ARREST, DETENTION AND CONTINUED DETENTION OF THE PLAINTIFFS, MINISTER OF CITIZENSHIP AND IMMIGRATION, ATTORNEY GENERAL OF CANADA
|
| Respondents
(Defendants)
|
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on February 28, 2018).
GLEASON J.A.
[1]
The appellants appeal from the judgment of the Federal Court in Wang and Yan v. The Queen et al, 2016 FC 1052 (per Barnes, J.) in which the Federal Court struck the appellants’ Statement of Claim, with leave to amend it in part. We see no basis for interfering with the Federal Court’s judgment as the Federal Court correctly set out the law applicable on a motion to strike and made no palpable and overriding error in applying that law to the appellants’ Statement of Claim.
[2]
More specifically, it was open to the Federal Court to conclude that the claims against the individual members of the Immigration Division of the Immigration and Refugee Board (the ID) should be struck in the absence of any material facts that could conceivably ever support a claim against them. Likewise, it was open to the Federal Court to dismiss as abusive those portions of the claim that sought to re-litigate issues that had previously been finally decided by the Ontario Superior Court of Justice and to conclude that what remained of the pleading was so devoid of material fact that it ought to be struck, with leave to amend. Although the Federal Court did not deal with the appellants’ claim for habeus corpus, the appellants have been released from custody and the circumstances have therefore changed from those that existed at the time of the pleading. It is unnecessary for us to address in this appeal the extent, if any, of the Federal Court’s jurisdiction to hear a new application for habeas corpus based on these changed facts, which application has not yet been made.
[3]
We would accordingly dismiss this appeal with costs, fixed in the all-inclusive amount of $2000.00, payable to the respondent members of the ID and in the all-inclusive amount of $2000.00, payable to the remaining respondents. We would grant the appellants the requested 60 days within which to amend their Statement of Claim, if they wish.
“Mary J.L. Gleason”
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| Docket:
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A-339-16
|
||
| STYLE OF CAUSE:
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ZHENHUA WANG AND CHUNXIANG YAN v. HER MAJESTY THE QUEEN, OXANA M. KOWALYK (ID MEMBER), SUSY KIM (ID MEMBER), IRIS KOHLER (ID MEMBER), OFFICER O'HARA (CBSA OFFICER), HAL SIPPEL, ERIC BLENKARN, ANDREJ RUSTJA, CBSA OFFICERS, ALL JOHN AND JANE DOE CBSA/CIC OFFICIALS UNKNOWN TO THE PLAINTIFFS, INVOLVED IN THE ARREST, DETENTION AND CONTINUED DETENTION OF THE PLAINTIFFS, MINISTER OF CITIZENSHIP AND IMMIGRATION, ATTORNEY GENERAL OF CANADA
|
|
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| PLACE OF HEARING:
|
Toronto, Ontario
|
||
| DATE OF HEARING:
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February 28, 2018
|
||
| REASONS FOR JUDGMENT OF THE COURT BY:
|
WEBB J.A.
RENNIE J.A.
GLEASON J.A.
|
||
| DELIVERED FROM THE BENCH BY:
|
GLEASON J.A.
|
||
APPEARANCES:
| Rocco Galati
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For The Appellants
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| James Todd
B. Asha Gafar
|
For The Respondents
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| Jonathan Dawe
Michael Dineen
|
For The Respondents
OXANA M. KOWALYK (ID MEMBER), SUSY KIM (ID MEMBER), IRIS KOHLER (ID MEMBER)
|
SOLICITORS OF RECORD:
| Rocco Galati Law Firm
Professional Corporation
Barristers and Solicitors
Toronto, Ontario
|
For The Appellants
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| Nathalie G. Drouin
Deputy Attorney General of Canada
|
For The Respondents
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| Dawe & Dineen
Barristers and Solicitors
Toronto, Ontario
|
For The Respondents
OXANA M. KOWALYK (ID MEMBER), SUSY KIM (ID MEMBER), IRIS KOHLER (ID MEMBER)
|