Sivak v. Canada

Sivak v. Canada

The Court struck specified portions of the Amended Statement of Claim and removed the Minister of Foreign Affairs as a party because the pleaded allegations were largely conclusions, speculative or evidence rather than material facts; the Claim failed to plead the essential elements of the torts alleged and failed to provide factual particularity for Charter s.7 and s.15 claims, thereby disclosing no reasonable cause of action under Federal Courts Rules r.174, r.181 and r.221(1).

Citation
2012 FC 272
Parties
Plaintiffs: DAVID SIVAK et al.; Defendants: HER MAJESTY THE QUEEN and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Court
Federal Court
Jurisdiction
Canada
Judgment Date
28 February 2012
Procedural Posture
Judicial Review Converted to Action Under Federal Courts Act S.18.4(2) / Motion to Strike Portions of Amended Statement of Claim (pleadings Stage); Class Certification Motion Heard Concurrently
Outcome
Certain paragraphs and allegations in the Amended Statement of Claim struck; Minister of Foreign Affairs struck as a party; Defendants awarded costs; court ordered parties to propose further steps and timetable by March 20, 2012
Legal Topics
Procedural Fairness, Institutional Bias, Motion to Strike, Class Action Certification, Misfeasance in Public Office, Conspiracy, Negligence, Abuse of Process, Charter Ss.7 and 15
Source Language
English
Administrative Law Immigration Law Tort Law Constitutional/charter Law Civil Procedure Procedural Fairness Institutional Bias Motion to Strike +6 more

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Parties

DAVID SIVAK et al.

Plaintiffs

HER MAJESTY THE QUEEN and THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendants

Procedural Posture

Judicial Review Converted to Action Under Federal Courts Act S.18.4(2) / Motion to Strike Portions of Amended Statement of Claim (pleadings Stage); Class Certification Motion Heard Concurrently

Legal Issues

  1. 1 Whether portions of the Amended Statement of Claim disclose a reasonable cause of action or are scandalous, frivolous or vexatious under Federal Courts Rules r.221(1)
  2. 2 Whether the Minister of Foreign Affairs is a proper party and can be held vicariously liable for conduct of embassy staff
  3. 3 Whether the Claim pleads sufficient material facts to ground torts alleged (negligence, conspiracy, misfeasance in public office, abuse of process)

Ratio Decidendi

The Court struck specified portions of the Amended Statement of Claim and removed the Minister of Foreign Affairs as a party because the pleaded allegations were largely conclusions, speculative or evidence rather than material facts; the Claim failed to plead the essential elements of the torts alleged and failed to provide factual particularity for Charter s.7 and s.15 claims, thereby disclosing no reasonable cause of action under Federal Courts Rules r.174, r.181 and r.221(1).

Court Disposition

Certain paragraphs and allegations in the Amended Statement of Claim struck; Minister of Foreign Affairs struck as a party; Defendants awarded costs; court ordered parties to propose further steps and timetable by March 20, 2012

Orders

  • Struck from the Amended Statement of Claim pursuant to Rule 221(1): paragraph 6(b)
  • Struck: paragraph 12(c)