Court of Appeal

Nova Scotia Court of Appeal

Citation: Kasheke v. Canada (Attorney General), 2018 NSCA 2

Date: 20180103

Docket: CA 462439

Registry: Halifax

Between:

Rev. Dr. Abella Ezra Kasheke

Appellant

v.

Attorney General of Canada and

Mr. John Baird, Minister of Foreign Affairs

Respondents

Decision:

          Introduction

[1]              Rev. Dr. Kasheke has launched an appeal from a decision (reported at 2017 NSSC 61) by LeBlanc, J. to strike out in its entirety his Statement of Claim against the respondents. The respondents have brought this motion to have his Notice of Appeal set aside, principally because in their submission, it sets out no grounds on which an appeal could be sustained.

          Background

[2]              On December 9, 2014, Rev. Dr. Kasheke filed a Statement of Claim against the respondents alleging that when he was in Tanzania from 2010 to 2013, Canadian government officials had failed to assist him with the result that he suffered harm and injury. The respondents brought a motion for summary judgment on pleadings pursuant to Civil Procedure Rule 13.03. LeBlanc, J. noted the respondents’ position on the pleadings as a whole:

…the facts pleaded, “no matter how much they are expanded upon or how much the Plaintiff believes he was harmed, do not result in a viable claim at law within the jurisdiction of a Canadian provincial superior court…” (para. 29)

[3]              In his decision, LeBlanc, J. outlined the harm described in Rev. Dr. Kasheke’s pleadings:

5     The Statement of Claim alleges that the plaintiff was the victim of a form of identity theft while in Tanzania, and that after commencing legal proceedings against those he believed to be responsible, he was subject to various forms of physical attack, including assaults, attempted shootings, poisoning, car chases, damage to his vehicles, attempted strangulation, and phone tapping, among other things. The plaintiff says the Tanzanian police did nothing to assist him and in fact, suggests that police officers were among his antagonists. He alleges that Canadian government officials failed to shelter or rescue him, leading to various harm and damages.

[4]              Rev. Dr. Kasheke’s claims against the respondents were not limited to what he alleged had occurred in Tanzania. LeBlanc, J. noted that the pleadings included assertions that,

20…after returning to Canada, the plaintiff and his family were subject to an ongoing campaign of attacks and intimidation by secret agents on behalf of the Tanzanian state who had, among other things, stalked and harassed him and his family, broken into and vandalized his home, and hacked his e-mail account. He says the Halifax police have not assisted him (paras. 120-134). In his written submissions, the plaintiff announces that he has concluded that in fact the people "hunting" him and his family in Canada must be Canadian, not Tanzanian secret agents.

[5]              LeBlanc, J. set out the parties’ positions:

29… The defendants argue that there is no statutory or common law duty for the Canadian state to protect or rescue Canadian citizens overseas. They further submit that in addition to the lack of a positive duty, there are no material facts pleaded that could support a conclusion that Canadian officials "conspired with foreign officials to violate the fundamental rights of a citizen": see Khadr v. Canada, 2014 FC 1001, [2014] F.C.J. No. 1096, at para. 13.

30     The essence of the plaintiff's claim appears to be that when he found himself in distress in Tanzania -- and particularly, he claims, the subject of a campaign of fraud, harassment, and attempted murder -- as the result of acts allegedly perpetrated by Tanzanian individuals, businesses and government figures, the Federal Crown was obliged to provide him refuge and to evacuate him. At the least, he appears to be saying, the Crown was obligated to provide him with air fare back to Canada. The failure to do so, he alleges, led to physical, mental and financial harm, both in Tanzania and in Canada, after his return.

[6]              LeBlanc, J. addressed Rev. Dr. Kasheke’s causes of action under headings itemized by the respondents: racial discrimination, Charter violations, negligence, breach of fiduciary duty, misfeasance in public office by Mr. Baird, intentional infliction of mental distress, business or financial loss, and conspiracy. He concluded there was “no discernable basis for these claims in private law.” (para. 70) He struck out the entire Statement of Claim without leave to amend. He found there was “no indication [of] a potential to remedy the deficiencies in the pleadings by amendment.” (para. 73)

          The Notice of Appeal

[7]              Rev. Dr. Kasheke appealed LeBlanc, J.’s decision in a 14-page Notice of Appeal filed on April 11, 2017. In the Notice, he disputes the decision with detailed factual allegations which he characterizes as “clarifications” of his original claims. He extensively reviews, paragraph by paragraph, LeBlanc, J.’s decision, repeating factual allegations and augmenting them. He also complains that LeBlanc, J. did not review the extensive documentation he submitted with his claim. This complaint references what LeBlanc, J. said about his treatment of the documentation:

72     I note that the plaintiff submitted a large quantity of documents on this motion (and throughout the proceeding previously) that are, or purport to be, evidence going to his claims. In accordance with the requirements of summary judgment on the pleadings, I have not considered any of this material on this motion.

[8]              In his Notice of Appeal Rev. Dr. Kasheke urges the Court of Appeal to “consider and review each and every document.” He says because LeBlanc, J. declined to consider the documentation he is “filing this appeal to wholly object the decision he took to grant the Summary Judgment that the Respondents are seeking.” (paras. 16 and 17, Notice of Appeal)

[9]              In his Notice of Appeal Rev. Dr. Kasheke states reasons for his appealing LeBlanc, J.’s decision:

To enable the Court of Appeal to consider “evidential material” listed in the Notice of Appeal which is “paramount to the substantiation of his case and is the reason he is appealing the Honourable Justice LeBlanc’s decision. (para. 13)

To correct “mistakes he made, thinking he and his family were being hunted [in Canada] by Tanzanian spy operatives” as “he did not contemplate or raise any suspicions to the fact that CSIS agents, the RCMP and the Halifax police were the ones who had put their forces together to stalk, intimidate, vandalize his cars and home and finally plot to murder him and members of his family.” (para. 15)

To “point the Appeal Court to specific arguments [made before LeBlanc, J.] that oppose this Summary Judgment…” (para. 20)

To obtain a reversal of LeBlanc, J.’s decision because “the unlearned Appellant thinks he alleged facts that adequately spell out divers causes of action…” (para. 22)

To challenge LeBlanc, J.’s finding in para. 58 of his decision that “any allegations in the pleadings respecting the conduct or intentions of the defendants is mere speculation as to state of mind, and therefore insufficient to make out the necessary material facts” [for a claim of intentional infliction of mental distress]. The appellant says that in his Statement of Claim he “specifically states the phrase, “intentional infliction of mental suffering…the Appellant believes he clearly mentioned a cause of action.” (paras. 23, 24 and 26)

To have the Court of Appeal determine whether “the phrase containing  the word “suffering” connotes, or is equal, or is parallel to the word “distress…” (para. 25)

To enable the Court of Appeal to be presented with “Doctors and Specialists’ reports regarding trauma and injuries that the Appellant sustained in Tanzania and for which he is receiving treatment…” (para. 26)

To object to LeBlanc, J.’s costs award [$750] (para. 30)

To have the Court of Appeal consider submissions made by the appellant before LeBlanc, J., for example, the “Plaintiff’s  Supplementary Objection to the Crown’s Summary Judgment Motion to Strike” filed June 1, 2016 “so that this matter can go to trial...” (para. 31)

To have the Court of Appeal consider “Dr. Omar Alwatban’s psychological report confirming what the Appellant’s family is going through…” (para. 33)

To “allow the results of the Public Inquiry [which the appellant has requested be ordered by the Governor General] to be filed with the Appeal Court.” (para. 34)

          The Parties’ Positions on this Motion

[10]         The respondents’ motion was heard on two days in regular Chambers. On the first day, December 14, they submitted that Rev. Dr. Kasheke’s Notice of Appeal fails to disclose, as required by Civil Procedure Rule 90.40(1), a ground of appeal, stating this as the primary basis for their motion. They said with no grounds of appeal particularized, they do not know how to respond to the appellant. They characterized the Notice of Appeal as nothing more than argument, supposition, and speculation.

[11]         The respondents have also sought to have Rev. Dr. Kasheke’s Notice of Appeal set aside for its failure to comply with Rules 90.40(2) and 90.06(1)(c) respecting the form and content of the notice of appeal.

[12]         In their written submissions, the respondents characterize the Notice of Appeal as “unintelligible” and submit that the thirty-five paragraphs under the heading “Grounds of Appeal” are nothing more than “a narrative retort to the judgment under appeal.” They submit that Rev. Dr. Kasheke “has not put forward any discernible grounds of appeal nor has he articulated any legal errors.”

[13]         Rev. Dr. Kasheke responded in court to the respondents’ submissions by saying that his case is “about human rights” and has merit. He then reiterated aspects of his original Statement of Claim, referring to a campaign of fraud, harassment and attempted murder in Tanzania and Canada, and invoking the Canadian Charter of Rights and Freedoms.

[14]         On December 14 I asked Rev. Dr. Kasheke what he is asserting as the errors of fact or law committed by LeBlanc, J. His response was to say that his factum, due to be filed on December 15, contained his arguments. He said everything he wanted to put forward in relation to the respondents’ motion was in his factum. This prompted an adjournment to December 21 so that Rev. Dr. Kasheke would have the benefit of his factum being considered.

          Rev. Dr. Kasheke’s Factum

[15]         Rev. Dr. Kasheke’s factum was not filed until December 20. In a covering letter, Rev. Dr. Kasheke advised that he could not file his factum on December 15 “due to time lost at court, to attend the other party’s motion.”  Notwithstanding the late filing of the factum, Ms. Grant for the respondents agreed on December 21 that the continuation of the motion should proceed as scheduled.

[16]         The respondents had two principal submissions about Rev. Dr. Kasheke’s factum: (1) it mirrors the Statement of Claim and discusses factual allegations, not errors; and (2) it contains many allegations that post-date LeBlanc, J.’s decision. The respondents say that the factum essentially re-argues the case. It is the submission of the respondents that the Notice of Appeal read with the factum discloses no grounds of appeal.

[17]         On December 21 Rev. Dr. Kasheke had nothing further to add in response to the respondents. Asked again to identify what he is alleging as grounds of appeal, he indicated he is relying on what is contained in his factum.

          The Applicable Legal Principles

[18]         Civil Procedure Rule 90.40(1) provides a judge of the Court of Appeal with the discretion to summarily “set aside a notice of appeal if it fails to disclose any ground for an appeal.” An appeal may also be dismissed if the form of the notice of appeal is non-compliant with the Rules. (Civil Procedure Rule 90.40(2)(a)) And a notice of appeal must contain “a concise statement of all grounds of appeal, a citation of the statutory authority for the appeal, and a concise description of the order to be sought at the conclusion of the appeal.” (Civil Procedure Rule 90.06(1)(c)).

[19]         Notices of appeal have been summarily set aside by Nova Scotia Court of Appeal Chambers judges for failing to articulate an error of law. In Fares v. CIBC Bank, 2009 NSCA 124, Roscoe, J.A. held that,

 “…a ground of appeal must include some particularization or suggestion of what the alleged error of law or jurisdiction…a bare allegation of an error of law or jurisdiction is insufficient to disclose a valid ground of appeal. (para. 6)

[20]         More recently, in Raymond v. Brauer, 2015 NSCA 106, Bourgeois, J.A. identified the following principles established by earlier cases:

•        If there is a sustainable ground of appeal, the appeal should not be dismissed by a single judge in Chambers, even in the face of questionable merit;

•        A ground of appeal is unsustainable if there is no possibility in law that it could be found to be meritorious on appeal;

•        A sustainable ground of appeal must not be a bare assertion of an error of law or jurisdiction, but rather, requires particulars of the error alleged; and

•        An appeal should not be dismissed if an amendment could cure deficiencies in the drafting of the grounds. (para. 13)

[21]         Although an appellant will not be penalized where a sustainable ground of appeal has simply not been adequately articulated, the ground of appeal has to be discernable even if in need of rehabilitation through amendment to the notice. In her decision in Raymond v. Brauer, Bourgeois, J.A. noted Beveridge, J.A.’s finding that an appeal should not be set aside “due to clumsy or inarticulate grounds if an amendment can cure the deficiency.” (MacDonald v. Nova Scotia (Attorney General), 2012 NSCA 64, para. 17)  MacDonald and Raymond v. Brauer are cases where grounds of appeal were not discernable and the motions to set aside the Notices of Appeal were granted.  (MacDonald, paras. 17 and 18; Raymond v. Brauer, paras. 21 and 22)

          Analysis

[22]         Rev. Dr. Kasheke’s Notice of Appeal contains no grounds of appeal. It articulates no errors of law or palpable and overriding errors of fact committed by LeBlanc, J. It simply seeks to “clarify” aspects of the Statement of Claim and elaborates on or amplifies issues and claims that were before LeBlanc, J. In my review of Rev. Dr. Kasheke’s forty page factum I discovered only assertions of alleged facts, suppositions, and speculation but nothing that can be remotely construed as a ground of appeal.

[23]         It is clear that Rev. Dr. Kasheke has not given up on asserting his causes of action. That is what his Notice of Appeal constitutes; a pleading of the causes of action contained in his Statement of Claim. Faced with LeBlanc, J.’s decision, Rev. Dr. Kasheke has simply ramped up his efforts to advance his claims. This is obvious throughout the Notice of Appeal.

[24]         A good illustration of how Rev. Dr. Kasheke has used the Notice of Appeal to re-deploy and amplify the claims struck out by LeBlanc, J. is found in the “Remedies” section of his factum. In his Notice of Appeal, Rev. Dr. Kasheke asked that LeBlanc, J.’s decision be reversed or in the alternative, “if successful, the Appellant be granted leave to amend his Statement of Claim and include torts for atrocities he and members of his family have endured in Halifax.” In his factum, Rev. Dr. Kasheke seeks not just a reversal of LeBlanc, J.’s decision. He asks for $98,800,000 “for damages and restitutions in this case, in consideration of the 476 days of suffering and injuries he sustained in Tanzania and in consideration of the five (5) years of mental, physiological and physical suffering the Appellant and members of his family have endured in Halifax.” He also seeks an order directing the RCMP  to forensically test “poisons the Appellant was given by the Tanzanian police” and an order directing a public apology from the Prime Minister for various harms experienced by the Appellant.

[25]         Rev. Dr. Kasheke’s Notice of Appeal is focused on a re-litigation before the Court of Appeal of the claims he was unsuccessful in advancing in the Nova Scotia Supreme Court. His Notice of Appeal is a reincarnation of his Statement of Claim. It contains nothing that can be interpreted or salvaged as a sustainable ground of appeal.  As stated by Scanlan, J.A. in Raymond v. Brauer, 2016 NSCA 36, “One party, not liking the outcome, has never been in and of itself a valid ground of appeal.” (para. 10)

          Conclusion

[26]         I have scoured Rev. Dr. Kasheke’s Notice of Appeal and his factum and found no ground of appeal articulated in either. I find that Rev. Dr. Kasheke’s failure to  set out any valid grounds of appeal entitles the respondents to succeed in their motion to have the appeal dismissed pursuant to Civil Procedure Rule 90.40(1).

[27]         No costs are awarded against Rev. Dr. Kasheke on this motion. Ms. Grant advised on December 21 that in the event the motion was granted the respondents would not be seeking costs. She noted the motion had been brought close to the original date scheduled for the appeal – February 7 -  a date that was then changed to accommodate the hearing of this motion.

[28]         In light of the success of the respondents’ motion, the appeal set for March 13 will not be proceeding.

                                                                   Derrick, J.A.