Federal Court Decisions

     IMM-1600-95

BETWEEN:

     THALAYASINGAM SIVAKUMAR

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN,

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     THE SOLICITOR GENERAL OF CANADA,

     and THE CANADIAN SECURITY INTELLIGENCE SERVICE

     Defendants

     REASONS FOR ORDER

JEROME A.C.J.:

     This motion by the defendants for an order striking portions of the plaintiff's Statement of Claim came on for hearing before me at Toronto, Ontario, on December 9, 1996. At the close of argument, I took the matter under reserve and indicated that these written reasons would follow.

     The plaintiff is a citizen of Sri Lanka who came to Canada on June 16, 1989. The plaintiff had occupied a leadership position in the Liberation Tigers of the Tamil Eelam ("LTTE"). In his Statement of Claim the plaintiff seeks:

(a) a declaration that the removal of the plaintiff to Sri Lanka would be a violation of sections 7 and 12 of the Charter of Rights and Freedoms in that it would constitute cruel and unusual treatment;

(b) a declaration that the Canadian government is estopped from removing the plaintiff from Canada as a result of assurances that were given to him in exchange for his cooperation with the Canadian Security Intelligence Service; and

(c) an injunction enjoining the defendants from removing the plaintiff from Canada.

     The defendants request that this Court grant an order:

(a) striking references to the Canadian Security Intelligence Service ("CSIS") and the plaintiff's alleged dealings with CSIS contained in paragraphs 2 through 6, 9 through 18, 20 through 27, 29 through 30, and 32 through 34 of the Statement of Claim;

(b) striking paragraph 35(b) of the Statement of Claim whereby the plaintiff seeks a declaration that the Canadian government is estopped from removing the plaintiff from Canada;

(c) striking CSIS as a defendant;

(d) striking the Solicitor General of Canada as a defendant; and

(e) for costs on this motion.

The defendants submit that the Statement of Claim fails to disclose a reasonable cause of action and that CSIS is not an entity which is capable of being sued. The plaintiff accepts that CSIS is not capable of being sued and consents to the striking of CSIS as a defendant. As I am of the opinion that CSIS is not a proper defendant to this action, I hereby order that CSIS be struck as a defendant. However, I do not consider it appropriate to strike the references to CSIS contained in paragraphs 2 through 6, 9 through 18, 20 through 27, 29 through 30, and 32 through 34 of the Statement of Claim. While CSIS is not a proper defendant, the plaintiff is not precluded from making factual allegations pertaining to dealings with CSIS.

     The defendants argue that the plaintiff's claim that the Canadian government is estopped from removing the plaintiff from Canada does not disclose a reasonable cause of action because the doctrine of estoppel cannot be used to preclude the exercise of the Minister of Citizenship and Immigration's statutory duty to deport the plaintiff as required by the Immigration Act. The defendants state that the element of "mutuality", a requisite for a claim of estoppel, is absent in that the alleged promises were made by CSIS officials to the plaintiff, the Minister of Citizenship and Immigration being a third party to any such promises. In addition, the defendants submit that the plaintiff is attempting to use the doctrine of estoppel to create a substantive right in law which does not otherwise exist. That is, he is trying to use estoppel as a sword rather than as a shield.

     The plaintiff submits that the relevant portions of the Statement of Claim should not be struck as the doctrine of estoppel supports a reasonable cause of action in these circumstances. The plaintiff states that his factual circumstances satisfy the test for the application of the principle of estoppel. The plaintiff further submits that the doctrine of legitimate expectation is also applicable to the case before me. In addition, the plaintiff notes that there are factual issues to be explored through the discovery process, making it inappropriate to strike out the relevant portions of the Statement of Claim at this time.

     As the Supreme Court of Canada made clear in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, the Court will only strike pleadings where it is plain and obvious that the pleadings disclose no reasonable cause of action. The plaintiff's claim for a declaration depends upon the plaintiff successfully proving that the defendants are estopped from removing the plaintiff from Canada. As the decisions of the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Lidder (1992), 136 N.R. 254 (F.C.A.) and Granger v. Canada Employment and Immigration Commission, [1986] 3 F.C. 70 (F.C.A.) make clear, the doctrine of estoppel can never be used to preclude the exercise of a statutory duty. It is the duty of the Minister of Citizenship and Immigration to execute the validly enacted deportation order which is in effect against the plaintiff, subject to the stay of execution in this case which was issued by the Federal Court of Appeal on May 24, 1996. The plaintiff has had the complete benefit of the refugee determination process and was found to be excluded from the Convention Refugee definition because of serious reasons for considering that he has committed crimes against humanity in his leadership role with LTTE. The Federal Court of Appeal confirmed this finding and leave to appeal to the Supreme Court of Canada was denied.

     I find that in the circumstances of this case it is plain and obvious that the pleadings disclose no reasonable cause of action founded in estoppel. Even if the alleged statements and promises of the CSIS officers were made to the plaintiff, this could not confer a substantive right of non-removal from Canada upon the plaintiff. As such, I order that paragraph 35(b) of the plaintiff's Statement of Claim be struck.

     In my opinion, it is also appropriate to strike the defendant, the Solicitor General of Canada as a defendant in this action. There is no cause of action in estoppel against the Solicitor General of Canada.

     I am prepared to hear further representations from the parties pertaining to the future course of these proceedings, should the parties consider it desirable to do so. I do not consider these to be appropriate circumstances for an award of costs.

O T T A W A

January 24, 1997                      "James A. Jerome"

                             A.C.J.