Case information

None.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Civil procedure - Pleadings - Torts - Misfeasance in public office - Negligence - Enforcement of provisions of the Immigration and Refugee Protection Act, S.C. 2001, c.27, which the Applicant alleged to be invalid pursuant to the Charter - No allegation that enforcement was clearly wrong, in bad faith or an abuse of power - Whether the Federal Court of Appeal erred in finding that there is not a scintilla of a possibility that the Crown could be held liable for misfeasance in public office or negligence for opposing efforts to have the constitutionality of the security certificate provisions of the IRPA adjudicated on their merits - Whether the pleadings disclosed a tort - Whether the Crown took improper positions in any of the relevant proceedings - Whether the Crown properly moved to dismiss the action, having previously taken the position that the constitutionality of the IRPA would be properly challenged in an action in the Federal Court - Whether the pleadings imputed any improper purpose to the Crown in its conduct of the litigation - Whether the case is no stronger if framed in negligence - What constitutes the "scintilla" required in order to sustain an action.

Mr. Zundel, a permanent resident of Canada, was detained in custody on February 19, 2003, when the Minister of Citizenship and Immigration and the Solicitor General of Canada signed a certificate under the provisions of ss. 33 and 34(1)(c-f) of the IRPA to the effect that Mr. Zundel was a danger to the security of Canada. On May 1, 2003, a warrant was issued under s. 82(1) of the IRPA for Mr. Zundel's arrest and detention.

While a review of the reasonableness of the certificate was underway, Mr. Zundel filed a Statement of Claim requesting declarations that the IRPA provisions at issue are invalid and that his detention was unlawful, and his release. The Crown moved to strike the Statement of Claim as disclosing no reasonable cause of action, and as being res judicata or an abuse of process. When this Court granted leave to appeal Re Charkaoui, [2005] 2 F.C.R. 299, 2004 FCA 421, Mr. Zundel moved to adjourn the Crown's motion to strike until Supreme Court decided that case.

The reasonableness of the security certificate was upheld on February 24, 2005 (2005 FC 295) and Mr. Zundel was deported to Germany in early March 2005. He remains in jail there. He therefore amended his Statement of Claim to claim $10 million for unlawful detention and deportation instead of his release. The motions judge declined to adjourn the Crown's motion, found that the Statement of Claim disclosed no reasonable cause of action and was moot, but declined to find that it was an abuse of process. The Court of Appeal dismissed an appeal.