[1] Three motions are brought before the Court, all filed by the plaintiffs. The first is a motion for default judgment; the second, a motion for summary judgment; and the third, which is twofold: on the one hand, a motion to allow an amendment to the statement of claim, and on the other hand, to force the defendants, on the basis of Rules 225 and 227 to 229 of the Federal Courts Rules, SOR/98-106 [the Rules], to disclose the documents deemed relevant.

I. Background

[2] A brief background is in order. The plaintiffs are all members of the same family. Two of the plaintiffs, Ituze Loic Sibomana and Tracy Sibomana, are minors. In April 2016, the principal plaintiff, Jean-Pierre Martin Sibomana [Mr. Sibomana], being the only plaintiff at the time, brought an action against the defendants in which he is seeking a series of remedies, all related to the processing of his immigration file by certain officials of Citizenship and Immigration Canada [CIC] and the Canada Border Services Agency. Such remedies include awarding of damages and an order forcing the CIC to grant him permanent resident status, or even that of Canadian citizen. In terms of amendments made to his statement of claim in May 2016, the claimed amount increased from $20 million to $66.5 million.

[3] In late June 2016, the defendants represented by the Attorney General of Canada (Her Majesty the Queen in Right of Canada, federal ministers John McCallum and Ralph Goodale, and federal public servants François Jobidon and Émélie Audet) filed a motion to strike Mr. Sibomana’s action on the grounds that it does not reveal any reasonable cause of action. For their part, defendants Raoul Delcore, Hubert Roisin, and Patrick Stevens are Belgian nationals on duty in Canada on behalf of their government [the Belgian Defendants]. Legal immunity is claimed for them.

[4] In June 2016, Mr. Sibomana had already sought to obtain a summary judgment and a default judgment the following month. The filing of his motion for summary judgment was not allowed since there is still no defence on record. Regarding the motion for default judgment, it is deemed premature since the Attorney General’s motion to strike was already before the Court.

[5] On August 18, 2016, my colleague, Justice Yvan Roy, dismissed, for all intents and purposes, the Attorney General’s motion to strike, considering that, according to the applicable tests in this type of motion, it is not clear and obvious that Mr. Sibomana’s recourse is doomed to fail. (Sibomana v Canada, 2016 FC 943 [Sibomana]). However, Roy J. struck the names of ministers McCallum and Goodale as defendants and ordered that the references to the remedies sought in favour of any person other than Mr. Sibomana, in this case the family members, be deemed struck on the grounds that he is not authorized to act for anyone other than himself.

[6] Moreover, Roy J. granted the Attorney General a 30-day time limit from the date of his order to file his defence. On August 31, 2016, the plaintiffs filed a re-amended statement of claim. On or about September 23, he filed a new motion for default judgment. By direction of the Court, issued on September 23, the plaintiffs were informed that said motion would not be set down for the General Sitting on October 6, 2016, as hoped by the plaintiffs, on the grounds that it was premature, and, according to the direction, the defendants had until September 30, 2016, to file their defence. The defence was effectively filed on September 30. The plaintiffs nevertheless insisted to proceed on October 6, but through a new direction issued on October 3, 2016, the Court reiterated that the motion for default judgment would not be set down since the defendants’ defence was filed.

[7] Nevertheless, the defendants insisted on submitting a new motion for default judgment in late October 2016 as a result of an order issued by the Chief Justice of this Court setting a special date — November 24, 2016 — for the hearing of the new summary judgment motion filed by the plaintiffs on October 4, 2016. In fall 2016, the plaintiffs also filed their motion to gain access to certain documents that they deem relevant. They hope, at the same time, to re-amend their statement of claim in order to make their monetary claim of $650 million against the defendants.

[8] On November 24, 2016, at the end of the special sitting scheduled by the Chief Justice and presided over by Justice Michel Shore, he suspended the case until a decision is made on a potential application for leave and judicial review of the decision that, according to the plaintiffs, would give rise to the difficulties that will lead Mr. Sibomana to bring this action. That decision, made on June 25, 2010, is that of the CIC authorities refusing permanent residency to Mr. Sibomana on the grounds of inadmissibility related to a robbery that he allegedly committed in Belgium in 2006.

[9] The suspension ordered by Shore J. was lifted on June 28, 2017, by order of the Court after Mr. Sibomana unsuccessfully attempted to obtain leave to challenge said decision. The plaintiff’s three motions were finally heard on October 23, 2017.

II. The motion for default judgment

[10] Despite what the plaintiffs say, their motion for default judgment is now moot because the Attorney General’s defence was filed on time. The directions issued by the Court on September 23 and October 3, 2016, are clear in this regard. The amendments made to the statement of claim on August 31, 2016, resulted in, through Rule 204 of the Rules, of postponing the time limit issued by Roy J. for the filing of the Attorney General’s defence to September 30, 2016. In fact, the 30-day time limit provided under Rule 204 is equally applicable in cases where defendants must respond to the initial statement of claim and in cases where they must respond to the amended or re-amended statement (Oakwood Lumber & Millwork Co. v Classic Millwork Co. (1989), 28 CPR (3d) 142 at p. 144). In these circumstances, I have neither the will nor the power to depart from the Court’s directions that, in relation to Roy J.’s order, dictated the final deadline for the filing of the Attorney General’s defence and thereby grant the plaintiffs’ motion.

[11] Further, I note that the Attorney General showed due diligence in responding to Mr. Sibomana’s action, by first indicating his intention to file a motion to strike early on in the process, then by speedily filing the first amendments to the statement of claim at the end of May 2016, and finally, as a result of Roy J.’s ruling, in filing his defence within the time set out in the Rules following the amendments to the statement of claim on August 31, 2016. However, there is nothing improper about wanting to submit a motion to strike before the defence is filed. In terms of judicial economy, this is even desired (Letarte, Veilleux, Leblanc, and Rouillard-Labbé, Recours et procédures devant les Cours fédérales, Lexis Nexis, Montréal, 2013 [Recours et procédures devant les Cours fédérales], at para 4-62). Therefore, assuming he is unable to file his defence on time, I would have no hesitation, in the circumstances of this case, to relieve the Attorney General of his failure.

[12] Lastly, it is useful to recall that, according to section 25 of the Crown Liability and Proceedings Act, RSC 1985, c. C-50, a default judgment can only be obtained against the Federal Government with prior leave from the Court obtained by an application served at least 14 clear days before it is filed, during which time it can, without further formality, be remedied by default to render said application moot (Recours et procédures devant les Cours fédérales, at para 4-38). No such motion has been submitted in this case.

[13] Finally, I cannot do anything against the Belgian Defendants since a certificate, issued under the terms of section 11 of the Foreign Missions and International Organizations Act, SC 1991, c. 41, was filed in the Court record in regard to each of them. In each case, this certificate seems to have been delivered under the authority of the Minister of Foreign Affairs, who ensures that, while still following this section, he demonstrates his content without necessarily proving the authenticity of the affixed signature or the official quality of the signatory. He grants the Belgian Defendants civil and administrative immunity in Canada. As the matter stands, the Court therefore has no authority over them. Regarding the State Immunity Law, RSC 1985, c. S-18, invoked by the plaintiffs, it does not apply to this case, as highlighted by the Attorney General.

III. The motion for summary judgment

[14] The motion for summary judgment cannot succeed. The plaintiffs are clearly convinced of the merits of their claim and wish to complete this as quickly as possible by obtaining the reparations they believe they are entitled to receive without further delay. Unfortunately for them, it is not that simple. In an adversarial system such as ours, both opposing parties’ positions matter.

[15] As mentioned above, Roy J. refused to grant the Attorney General’s motion to strike, finding that, in holding the statement of claim facts as true, it could not be found that Mr. Sibomana’s remedies (now also that of all the plaintiffs) would be doomed to fail. Otherwise, he found that, based on the assumption that the plaintiffs could prove the alleged facts supporting their statement of claim to the trial judge’s satisfaction, there was an issue for trial. He made sure to highlight the fact that the plaintiffs’ task “could be very difficult” insofar as they would in particular need to make a “demonstration of bad faith, wilful negligence, unlawful conduct or actions deliberately inconsistent with the performance of statutory duties” (Sibomana, at para 19). However, he calls for caution and invites the reader not to draw any inferences whatsoever on the merits of Mr. Sibomana’s action due to the dismissal of Attorney General’s motion to strike (Sibomana, at para 47).

[16] This case should normally proceed to trial. However, from a perspective of access to justice and judicial economy, Rules 214 and 215 of the Rules contemplate the possibility of obtaining summary judgment without necessarily holding a trial in certain circumstances. The purpose of this procedure is to allow the Court to summarily dispense “with actions that ought not to proceed to trial because they do not raise a genuine issue to be tried.” (Canada (Citizenship and Immigration) v Houchaine, 2014 FC 342 at para 26 [Houchaine]). In other words, it allows the Court to summarily dispense “with cases which ought not proceed to trial because there is no genuine issue to be tried in respect of the claim” (Timm v Canada, 2015 FC 1391 at para 48 [Timm]).

[17] Therefore, when a motion for summary judgment is before the Court, its role is to determine if the success of the position advanced by the party against whom the motion is submitted “is so doubtful that it does not deserve consideration by the trier of fact at a future trial” (Houchaine, at para 27). The burden falls onto the shoulders of the party seeking the summary judgment (Timm, at para 49). In this case, this burden was not met.

[18] As noted by Roy J., the plaintiffs’ statement of claim “is wordy, full of exaggeration and not organized” (Sibomana, at para 11). He rightly adds that it is “at times difficult to follow” and the vocabulary used in making allegations of bad faith, malice and unlawful motivation is “needlessly flowery” (Sibomana, at para 29). However, in addition to these stylistic peculiarities and lack of organization, I believe it is allowed, and the hearing for this motion tended to confirm this, to summarize the central allegations in the plaintiff’s statement of claim as follows:

a) On June 25, 2010, Mr. Sibomana’s permanent residence application was refused on account of a robbery that he allegedly committed in Belgium and he reportedly failed to declare this to the Canadian authorities; in addition to denying the commission of this crime, he said that he was never advised of the decision deeming him inadmissible for permanent resident status, which deprives him of his right to have it judicially reviewed and makes his status in Canada precarious, considering all the resulting inconveniences for him and his family; he blames the CIC for having intentionally hidden this decision and even created a “ghost file” of inadmissibility that will haunt his subsequent reports with the CIC for the sole purpose of causing him harm;
b) This decision is therefore the pretext for the subsequent decision-making that is just as detrimental to him; as such, on November 11, 2011, a ruling was made against him, after his work permit renewal was denied, an exclusion order on account of his inadmissibility, an order that was subsequently set aside by a decision of this Court (Sibomana v Canada (Citizenship and Immigration), 2012 FC 853). Also, in June 2013, as he was returning from Europe, Mr. Sibomana was arrested and held for a few days, because he was inadmissible and there was a risk that he would avoid an examination and potential removal, all based on false accusations;
c) Mr. Sibomana sees other examples of bad faith, wilful negligence, unlawful conduct or actions deliberately inconsistent with the performance of statutory duties on the defendants’ part, especially considering that his inadmissibility would be lifted by the Immigration Division in July 2013; for Mr. Sibomana, the defendants were guilty of sloppiness and intentional and slanderous harassment.

[19] The Attorney General pleads in defence that the allegations tied to the June 25, 2010 decision and to the alleged impossibility of challenging this by filing an application for leave and judicial review in a timely fashion, which constituted the starting points and anchor of the entire proceedings brought by the plaintiffs, are without merit. Even though he recognizes that he is unable to file the letter containing said decision due to the CIC’s file retention and disposal policy of the [translation] “sparse document,” he highlights that the Field Operations Support System [FOSS] notes, of which he produced a copy, clearly indicate that said decision was transmitted to Mr. Sibomana by letter the same day it was filed, on June 25, 2010.

[20] Regarding the allegation that Mr. Sibomana was deprived of his application for judicial review in respect to that decision, the Attorney General pleads that under section 72 of the Immigration and Refugee Protection Act, SC 2001, c. 27 [the Act], the time limits to judicially review a decision made under the Act is done from the time the plaintiff is advised or becomes aware of it for the first time. He adds that the Court always has the power to extend the time set out in the Act when there are valid reasons to do so.

[21] And so, he argues, even if he had not received a copy of the June 25, 2010 decision when the FOSS notes suggest it, Mr. Sibomana still had the right to challenge this decision from the time he became aware of it for the first time, which he did not do. However, insofar as Mr. Sibomana suggests that this decision would never have been made, the FOSS notes contradict this affirmation. Lastly, the Attorney General denies Mr. Sibomana’s complaints about the very merit of the decision, adding that they must first be argued by means of a judicial review.

[22] I cannot not say whether the position that the Attorney General defends in response to the allegations of the statement of claim concerning the June 25, 2010 decision is so doubtful that it does not merit to be reviewed by the trier of fact in a potential trial. I must add that these allegations must now be reviewed in accordance with the new information, that of this Court’s dismissal of the application for leave and judicial review filed by Mr. Sibomana against said decision following the suspension of this case by Shore J. on November 24, 2016 (Sibomana v Canada (Citizenship and Immigration), April 20, 2017, Docket IMM-526-17). I am not certain that this new information necessarily helps the plaintiffs’ case and increases the Attorney General’s burden. At the very least, it does not favour granting a summary judgment in favour of the plaintiffs on this matter.

[23] Now, regarding the November 11, 2011 decision concerning an exclusion order against Mr. Sibomana, the Attorney General responds by reporting in detail the role of defendant Jobidon, the nature of the decision that he made, the history of Mr. Sibomana’s immigration file, the work permit renewal procedures under which Mr. Sibomana was legally in Canada since his arrival in Quebec in June 2008, the investigation led by the CIC in relation to this renewal application, which was ultimately refused on October 25, 2011, the Court’s setting aside of the exclusion order made by defendant Jobidon, the reasons behind the ruling, and the confusion that could have led to the CIC attributing two identification numbers to Mr. Sibomana by mistake.

[24] However, the Attorney General denies all responsibility with respect to this part of the plaintiffs’ claim. Specifically, he denies the allegations of abusive behaviour attributed to defendant Jobidon, who pleads that the Court’s reasons for judgment for setting aside the exclusion order do not support in any way this part of the plaintiffs’ claim and argues that, in any event, this falls under the three-year limitation period established by section 32 of the Crown Liability and Proceedings Act and article 2924 of the Civil Code of Québec, and is therefore statute-barred.

[25] Once again, I cannot say that the Attorney General’s defence regarding this part of the plaintiffs’ claim does not raise any genuine issues. As I mentioned above, the plaintiffs’ proceeding relies entirely on the allegations of bad faith, wilful negligence, unlawful conduct or actions deliberately inconsistent with the performance of statutory duties. These types of allegations, once the defendant defends against them using a detailed file that is supported by documentary evidence to indicate a serious defence, at least at first glance, are ill-suited to the summary judgment proceeding. In this type of scenario, there are necessarily two versions of the facts and it is normally the trial judge who is in the best position, in light of all the evidence, to decide between them and choose one over the other.

[26] The same observation applies to the allegations concerning Mr. Sibomana’s arrest and detention when he returned to Canada on June 13, 2013. Here, the Attorney General gives a detailed account of his version of the facts, particularly as regards the review process made by defendant Audet when Mr. Sibomana’s plane descended, the contents of the discussions that took place, the nature of the powers exercised by the defendant, what motivated her to proceed with Mr. Sibomana’s arrest and detention, to his release on June 17, 2013, under certain conditions, to the decision made by the Immigration Division [the ID] on July 25, 2013, finding that Mr. Sibomana was not inadmissible, as the ID believed that he did not have the mens rea required to commit the robbery for which he was convicted in absentia by the Belgian judge, and to the real impact this decision had on the plaintiffs’ complaints about this third part of the proceeding.

[27] Once again, the Attorney General vigorously denies the allegations of wrongdoing against defendant Audet and the federal authorities in general. He recalls that the authorities responsible for enforcing the Act have the power, under the conditions and circumstances set out therein, to arrest and detain a foreign national residing in Canada without a warrant, and that such decisions, contrary to what the plaintiffs say, have no connotation of criminal law, and in this case, the conditions imposed by the ID during Mr. Sibomana’s release demonstrate that this jurisdiction was carried out judiciously by defendant Audet without bad faith, as she was only doing her job.

[28] At the hearing for this motion, counsel for the Attorney General pleaded that the plaintiffs had not discharged their burden of proving that the defence filed against the statement of claim did not raise any genuine issues, simply dwelling on the allegations in the statement without focusing on the defence relied upon by the Attorney General. This observation is fair, but in any case, as highlighted above, I am satisfied that this is not a case where the trial is not needed because it does not raise any serious question in regard to the claim. This is not counting the difficulties tied to certain findings sought by the plaintiffs, who, as highlighted by the Attorney General in his defence, sometimes raise concerns about the Court’s jurisdiction to grant it, sometimes their pure and simple admissibility.

[29] As this case is already being specially managed, under an order issued on December 6, 2016, I will dismiss the motion with costs, nothing more.

IV. The motion to amend the statement of claim and force the defendants to disclose all documents deemed relevant

[30] The plaintiffs wish to amend their statement of claim in order to increase the claimed damages and interest to $650 million. Under Rule 220 of the Rules, the Court’s leave is required since the Attorney General has already responded in his most recent version to the plaintiffs’ statement of claim dated August 31, 2016.

[31] To be given leave, the amendment sought must present a “reasonable prospect of success” (Teva Canada Limited v Gilead Sciences Inc., 2016 FCA 176, at paras 29 to 31 [Teva Canada]). For this purpose, the Federal Court of Appeal says that we must review the possibilities of success “in the context of the law and the litigation process, and a realistic view must be taken” (Teva Canada, at para 30). Here, it is evident that the plaintiffs have no chance of obtaining an amount of this size. In fact, in their best-case scenario, they can only hope to receive, in light of the indemnification principles in force in Canada, a small part of the $66.5 million that they are currently claiming. The amount of $650 million is so unorthodox in the context of our law that it is outlandish. I note in passing that this amount seems to be the fruit of the plaintiffs’ control to “cut short” the claim that they believe is worth $100 billion. This view of damages suffered requires no comment as it is so beyond belief in our judicial world.

[32] I would not grant the part of this motion that aims to force the Attorney General to disclose files deemed relevant by the plaintiffs. In fact, this application acts in response to the affidavits of documents filed by the Attorney General under Rule 223 of the Rules. The plaintiffs, who had been given a copy of all the documents mentioned in the affidavits, want the Attorney General to grant electronic access to the contents of two CIC databases (FOSS and GCMS), the files concerning Mr. Sibomana (6001-2088 and 6199-9991), and [translation] “all physical files kept at Archives Canada”.

[33] At the hearing for this motion, Mr. Sibomana quite candidly indicated to the Court that he wished to obtain this access to ensure the complete and sufficient nature of the two affidavits of documents filed by the Attorney General. However, this is not the application for review provided in Rule 227 of the Rules, which permits the Court to inspect any documents and order that an accurate or complete affidavit be served on the other party. However, the Court will only be able to issue such an order if it is satisfied that the affidavit of document in question is inaccurate or insufficient.

[34] The mere willingness of a party to be satisfied that the affidavit filed by the opposing party is accurate and complete is not enough to initiate the application of Rule 227. Further, that the moving party that has [translation] “the burden to disclose persuasive evidence to demonstrate the existence of available documents, but were not filed” and to also explain in which way the documents it seeks to have added to the affidavit are relevant to the dispute [sic]. (Recours et procedures devant les Cours fédérales, at para 4-78).

[35] And so, this was not demonstrated in this case. Rule 227, the only one that allows the Court’s intervention in relation to filing affidavits of documents, was not intended to allow for fishing expeditions to be done in the opposite party’s records in the hopes of possibly finding something that would support the defended position. Other mechanisms that are not stated by the rules of relevance or judicial law can be used to this end.

[36] At the motion hearing, Mr. Sibomana also seemed to challenge the authenticity or even the merit of certain documents identified in the affidavits of documents filed by the Attorney General. Since I had the opportunity of mentioning this to Mr. Sibomana, this type of argument goes largely beyond the framework of Rule 227. In other terms, Rule 227 is not the appropriate vehicle to raise this type of concern.

[37] The plaintiffs’ three motions are therefore dismissed, with costs, considering the outcome of said motions.

[38] As this case is being specially managed, the plaintiffs can hope to rapidly proceed to trial. To do so, they must cease multiplying, as they have tended to do so until now, the prolific and unwise proceedings and applications for directions that only burden and unduly prolong the process. This is, without a shadow of a doubt, a case where the presence of an attorney acting on behalf of the plaintiffs would be beneficial for all. This presence would resolve the problem of the plaintiffs’ representation, especially that of Mr. Sibomana’s two minor children. Mr. Sibomana certainly has the right to represent himself, but he is not permitted, according to the Court Rules, to speak on behalf of other plaintiffs. As the matter stands, this problem, which stayed on the back burner during the hearing of these motions, is likely to arise sooner or later, as evidenced by the Roy J.’s judgment and the defence filed by the Attorney General.

ORDER

THE COURT ORDERS that:

The motion for default judgment is dismissed;
The motion for summary judgment is dismissed;
The motion to amend the statement of claim and to force the defendants to disclose documents deemed relevant is also dismissed;
With costs against the defendants in all three cases, payable in any event of the cause.