Court File No.
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: SENATOR MICHAEL DENNIS DUFFY Plaintiff and THE SENATE OF CANADA and THE ATTORNEY GENERAL OF CANADA Defendants
STATEMENT OF CLAIM
TO THE DEFENDANTS A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff. The claim made against you is set out in the following pages. IF YOU WISH TO DEFEND THIS PROCEEDING , you or an Ontario lawyer acting for you must prepare a statement of defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the plaintiff’s lawyer or, where the plaintiff does not have a lawyer, serve it on the plaintiff, and file it, with proof of service in this court office, WITHIN TWENTY DAYSafter this statement of claim is served on you, if you are served in Ontario.
If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing yourstatement of defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days. Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your statement of defence.
2 IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE. TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it has not been set down for trial or terminated by any means within five years after the action was commenced unless otherwise ordered by the court.
DATE: ISSUED BY:____________________ Address of Court Office: 161 Elgin Street Ottawa, ON K2P 2K1 TO:
The Senate of Canada Michel Patrice, Law Clerk and Parliamentary Counsel 1310-40 Elgin St. Ottawa, ON K1A 0A4 Tel: 613-992-2426 Fax: 613-992-2125
TO:
Ministry of the Attorney General of Canada Deputy Attorney General Office of the Deputy Attorney General of Canada 284 Wellington Street Ottawa, Ontario K1A 0H8
3
I. CLAIM 1.
The Plaintiff claims: (a)
General damages in the amount of $6,500,000;
(b)
Loss of income and benefits in the amount
of
$300,000
as
particularized in paragraph 132 plus related benefits; (c)
Special damages in an amount to be determined before trial;
(d)
Punitive damages in the amount of $1,000,000;
(e)
A declaration that the Plaintiff’s rights under the Charter of Rights and Freedoms have been violated; as
particularized in paragraphs 116-119 (f)
An award for damages under s. 24 of the Charter of Rights and Freedoms; to be particularized prior to trial.
4 (g)
A declaration that the Senate and/or some
of
its
members
acted
under
the
unconstitutionally
Constitution Act, 1867, sections 18, 21-36, 91 (8), 128 and the Fifth Schedule and the Parliament of Canada Act;
(g)(h) A declaration that the Senate and/or some of its members acted ultra vires
its
legal
powers
in
the
administrative law sense; (h)(i) Pre and post judgment interest in accordance with theCourt of Justice Act, RSO 1990, c. C. 43, as
amended; (i)(j)
Costs of this action, plus with all applicable taxes; and
(j)(k) Such further and other relief as this Honourable Court deems just.
5
II. PARTIES
2.
The Plaintiff, Senator Michael Dennis Duffy (“Senator Duffy”), was appointed to
the Senate of Canada on January 26, 2009, representing the province of Prince Edward Island. At all material times he was a member of the Senate of Canada (the “Senate”). 3.
The Defendant, the Senate, is the upper house of the Parliament of Canada. The
Senate consists of 105 senators appointed by the Governor General. The Senate was established pursuant to the Constitution Act, 1867. The Senate is responsible in law for its actions and/ or decisions as well it is vicariously liable for the actions and/ or decisions of its members and committees, and sub committees whether those actions and/ or decisions are made within or outside the exercise of their statutory authority. 4.
The Defendant, the Attorney General of Canada (“AGC”), is named in place of the
Her Majesty the Queen in Right of Canada (the “Crown”) who is the sovereign of Canada and is liable for damages in respect of torts committed by servants of the Crown, pursuant to the Crown Liability and Proceedings Act, RSC 1985, c. C-50. The Crown is also liable for damage in respect of unconstitutional acts of omissions of servants of the Crown, pursuant to s. 24 of the Canadian Charter of Rights and Freedoms (the “Charter”). 5.
The AGC is liable for the damages in respect of torts committed by the Royal
Canadian Mounted Police (“the RCMP”)pursuant to theCrown Liability and Proceedings Act, RSC 1985, c. C-50. The AGC is also liable for damages in respect of violation of
constitutionally protected rights by officers, agents and servants of the RCMP, pursuant to s. 24 of the
Canadian
Charter
of
Rights
and
Freedoms (the “Charter”).
6
III.FACTS
Senator Duffy’s Backgrou nd and Appointment to the Senate
6.
On the advice of the Prime Minister, the Governor General summoned Michael
Dennis Duffy to the Senate on January 26, 2009, to represent the province of Prince Edward Island (“PEI”). Senator Duffy was to enjoy security of tenure until the age of 75. The protection of a Senators independence, avoidance of financial coercion and/or political influence are all reasons for the security of tenure. 7.
Section 23 of the Constitution Act, 1867, sets out the conditions by which an
individual may qualify to be a senator. For senators of every province, except for Quebec, they must be at least 30 years old, be a citizen, own property in the province of appointment and have a worth of over $4000 above debts and liabilities. Such an individual shall be resident in the Province for which the appointment is made. 8.
Senator Duffy was born on May 27, 1946 in PEI. His family has long and deep
family roots in the province. He can trace his PEI family roots back to 1844. His grandparents were born there, his parents were born there, his siblings were born there. He was raised and schooled in PEI. Like so many born and bred Maritimers, as a youth, Senator Duffy left his home in search of a career. In 1971 he relocated to Ottawa, Ontario to pursue journalism opportunities. Even when he left PEI in search of a career in journalism, his family and roots remained in PEI. He returned to the province constantly to visit family.
7 9.
Senator Duffy launched a very successful and lengthy career in journalism,
specializing in political life in Canada. Against the odds, he persevered and ultimately attained success in his chosen field. 10.
From 1971 until his 2009 appointment to the Senate, Senator Duffy worked in
Ottawa as a radio and TV journalist. Due to his employment, Senator Duffy lived in Ottawa. 11.
In 1998, while still working in Ottawa, Senator Duffy and his wife purchased their
intended permanent residence at 10 Friendly Lane, Cavendish Beach, PEI. They did not intend to permanently reside in Ottawa once Senator Duf fy’s retired from his journalism career. 12.
Senator Duffy’s life as a journalist ended with his 2009 appointment as Senator for
the Province of PEI.
The PMO, the Senate and the Forced Scenario 13.
When told of his appointment, Senator Duffy actively made inquiries and was
initially informed by the Prime Minister, and confirmed by memo of Christopher McCreery, constitutional advisor to the Senate leader Marjore LeBreton that once he declared PEI his province of residence and owned land in PEI, then, upon his appointment, he would be qualified to represent PEI in the Senate. Indeed, he was told that he could sit as a Senator from PEI, even if he lived in Ottawa 99% of the time. 14.
All senators appointed to represent jurisdictions outside of Ontario, or Ontario
senators whose main residence was at least 100km away from Ottawa, were expected to
8 maintain a residence in the National Capital Region. While Senator Duffy’s residence in PEI remained his residence in the province for which he was appointed, his home in Kanata, Ontario, became his residence while attending to his duties at the Senate. 15.
As a result of his appointment, Senator Duffy was able to claim per diem expenses
related to residing away from his PEI residence. Senator Duffy was advised by Senator Tkachuk, then Vice-Chair of the Senate standing committee on Internal Economy, Budgets and Administration (“the CIBA”) Committee, that he should claim per diem expenses as other PEI senators do, given that PEI was where his provincial residence was. 16.
In late 2012, the media began publishing articles about Senate expense claims. This
ignited a slow-burning political storm which eventually became a major political issue for the government and the powerful Prime Ministers’ Office (the” PMO”). 17.
Nigel Wright, at the time the Prime Minister’s Chief of Staff, spearheaded the PMO
response to the expense issue. 18.
On November 22, 2012, the CIBA created the Subcommittee on Living
Allowances (the “Subcommittee”) to review expense claims for reimbursement of expenses related to residences in the National Capital Region. 19.
Senator Duffy actively sought advice from the top authorities to confirm that his
actions were within the rules. Throughout December 2012 and January 2013 both Nigel Wright and, Senator Tkachuk,stated that Senator Duffy’s expense claims were entirely within the rules and that there was no reason for him not to claim housing allowance for his
9 Ottawa home. He was, however, urged not to speak out against the media stories in the hope the story would fade away. 20.
As of January 2013, the PMO and the Senate leadership were all fine with Senator
Duffy’s 4 years of living expense claims as being entirely within the rules. 21.
However the story did not leave the media spotlight.
22.
Suddenly, in February 2013, in an effort to end the political damage to Prime
Minister Harper, the PMO stopped adhering to its hands off approach to the issue, and instead entered into the fray inorder to extract what theybelieved would be a resolution to the problem (the “Forced Scenario”). 23.
On February 7, 2013, the PMO decided to enact a new political strategy – what they
termed the mistake-repay strategy. The strategy engaged Nigel Wright, the PMO’s Issues Manager Chris Woodcock, the Leader of the Government in the Senate, Senator LeBreton, and the Chair of CIBA, Senator Tkachuk, and the majority of the Steering committee of CIBA 24.
A two-pronged strategy was hatched over the course of that day: (a)
Temporarily buy time. This would allow the various parties to appear to do something so that there would be no allegations of a cover up. This included making sure that Senator Duffy did not speak to the press.
10 (b)
The mistake-repay fiction would be the operational strategy. This would solve the problem of the living expenses
received,
even
though
those expenses were already known to have been validly claimed. The political strategy involved deliberate deceit over honesty and truth. It required Senator Duffy to admit to mistakes he did not make, to repay amounts validly claimed, and to apologize. 25.
The intended purpose of the Forced Scenario was to end the public agony of this
story remaining in the media cycle. The PMO response was a calculated effort to politically limit any further “bleeding” damage to the government and, in particular, Prime Minister Harper. 26.
Right from the start, Senator Duffy resisted the Forced Scenario, on the principled
basis that he had done nothing wrong. 27.
Senator Duffy retained lawyer Janice Payne to advise him as a result of the pressure
from Nigel Wright and pursuant to the PMO’s Forced Scenario .
11 28.
On February 14, 2013, the CIBA confirmed that they had engaged Deloitte, an
audit, consulting, and financial advisory company, to conduct an independent examination of Senator Duffy’s expense and living claims from April 1, 2011 to Sept 30, 2012. 29.
Deloitte’s specific mandate was to analyze Senator Duffy’s expenses in reference
to the Senate’s very own rules and practices. There were specifically asked to review: (a)
Senator Duffy’s travel claims and supporting documentation
(b)
Claims related to/from a primary residence, assess and determine whether this occurred or could have occurred
(c)
Assess where the primary residence is located for Senator Duffy, and
(d)
Categorize claims as either:
(i)
Appropriate in keeping with Senate practice,
(ii)
Subject to reimbursement to the Receiver General, or
(iii)
Subject to interpretation and determination by the Standing Committee.
30.
Despite the Deloitte audit, the behind the scenes scheming of the PMO continued as
it tried to end what it described as “Chinese water torture.”
12 31.
On February 19, 2013, Nigel Wright wrote to Senator LeBreton and advised that he
had prior approval that the Conservative Party would pay the expenses in question on behalf of Senator Duffy. 32.
On February 20, 2013, Nigel Wright told Senator Duffy that if he didn’t take a dive
on the expenses, the Senate committee would rule that he was not a resident of PEI and therefore disqualify him from sitting as a Senator. This was the ultimate pressure put to Senator Duffy: the threat of expulsion. 33.
Over the next few days there were a litany of emails back and forth between
Senator Duffy’s lawyer, Nigel Wright and members of the PMO. The PMO scripted press releases on behalf of Senator Duffy. Senator Duffy continued to maintain his innocence and express his resistance to stating that his expenses were wrongly claimed. He refused to admit any wrong doing.
34.
On February 27, 2013, the PMO became aware that the Senate was looking for a
back payment of approximately $90,000 from Senator Duffy (the $90k”). 35.
Justice Vaillancourt later found that Senator Duffy was “kicking and screaming” to
have the issues dealt with in an appropriate forum. However, as a result of the coordinated and threatening efforts of the PMO, his free will was overwhelmed and he capitulated. Justice Vaillancourt ruled that the entire Forced Scenario was not for the benefit of Senator Duffy but rather, for the benefit of the government and the PMO. It was political damage control at its finest.
13 36.
After being threatened, cajoled, arm-twisted and rebuked, Senator Duffy
capitulated to the Forced Scenario. He was extorted into agreeing to release a statement that he had claimed amounts in error and that he would pay the amounts back, a statement that would deceive the Canadian public and the Tory base. Even the repayment was a fiction: Nigel Wright had agreed to pay the $90k Senator Duffy fictitiously owed. 37.
The political interference continued. On March 1, 2013, Nigel Wright wrote to
Senator Stewart – Olsen to advise he had seen the CIBA’s draft report and he asked for four significant changes to the report. 38.
The PMO then began to exert its influence to get Deloitte to abandon its audit of
Senator Duffy. On March 1, 2013, Nigel Wright wrote to Benjamin Perrin and members of the PMO with regard to the Deloitte examination. At the PMO’s request, Senator Gerstein attempted to influence the Deloitte audit through back-room channels. He was asked to work through senior contacts at Deloitte to have them report that if Senator Duffy’s primary residence is in Ottawa, then he would owe approximately $90,000, but that since Senator Duffy has committed to repaying this amount, then Deloitte’s determination of primary residence was no longer needed. 39.
On March 8, 2013, Nigel Wright wrote to Chris Woodcock, the PMO Director of
Issues Management, in response to a query from Jordan Press, parliamentary reporter for Postmedia News, regarding Conservative Party repayment of Senator Duffy’s expenses. Mr. Wright stated that the Party will not be paying Senator Duffy’s expenses. He then added “I am personally covering Duffy’s $90k.”
14 40.
On March 21, 2013, the PMO reportedon Senator Gerstein’s efforts. Senator
Gerstein’s attempt to influence the Deloitte investigation failed. Senator Gerstein advised that he had information from Deloitte that Deloitte would not change its opinion based on any repayment by Senator Duffy because they were asked to provide their opinion on residency. The decision was made that Senator Duffy should not engage with Deloitte. Nigel Wright agreed with this strategy. 41.
On March 25, 2013, Nigel Wright delivered a cheque for$90k to Janice Payne’s
law firm pursuant to the Forced Scenario. 42.
On that same day, Nigel Wright wrote to the members of the PMO and stated that
he could say that the facts as they know them do not warrant a referral of the matter to the RCMP. 43.
On April 22, 2013, Senator Duffy wrote to Deloitte to answer some of their
questions. Nigel Wright was against Senator Duffy communicating in any way with Deloitte and communicated that to members of CIBA. As a result, on April 24, 2013, the CIBA told Senator Duffy that he could not meet with Deloitte. 44.
On May 9, 2013, the Deloitte report on Senator Duffy’s expense claims was
released. The report stated that: (a)
Senators whose primary residence is located more than 100 km from the National Capital Region (“NCR”), are entitled to reimbursement of
15 travel expenses, and living expenses while in the NCR for Senate business; (b)
The following terms are undefined by applicable Senate guidelines and regulations:
primary
secondary
residence,
residence,
provincial
residence, NCR residence,
registered residence. (c)
The applicable Senate regulations and guidelines did not include criteria
to
enable
Deloitte
to
determine Senator Duffy’s primary residence, nor to assess the status of Senator Duffy’s primary residence against
those
regulations
and
guidelines. 45.
The Deloitte report found that there was a lack of clarity and terminology used in
the rules. Indeed, the regulations and guidelines applicable did not include criteria for determining “primary residence”. As such it wasimpossible to assess the status of Senator Duffy’s primary residence against the rules and guidelines. Other than one small clerical error, Deloitte could not find that any of Sen. Duffy’s living claims were inappropriate.
16 46.
On that same day, May 9, 2013, the CIBA, on receipt of the Deloitte report,
presented its own report to the Senate (the “Twenty-Second Report”). It recommended that the living expenses claimed by Senator Duffy dating back to his appointment had been properly claimed and that the living and travel expenses submitted by Senator Duffy be monitored on a going forward basis for the period of not less than one year. 47.
The Twenty-Second Report was adopted by the Senate as a whole.
48.
On May 14, 2013 the media began raising questions about how Senator Duffy
repaid the $90k to the Senate. Nigel Wright wrote that the Prime Minister knew in broad terms that he had personally assisted Senator Duffy with the repayment. The decision was effected to avoid further political embarrassment to the government and Prime Minister Harper. 49.
On May 16, 2013 the news media broke the story that Nigel Wright wrote a
personal cheque to cover Senator Duffy’s expenses. 50.
This revelation created uproar in the public, the media, and the government and in
the Senate. 51.
On May 19, 2013, Nigel Wright resigned as Chief of Staff to the Prime Minister.
52.
On May 29, 2013, the CIBA, on orders from the PMO, released a new
politically-motivated report (the “Twenty-Sixth Report”) to be adopted by the Senate as a whole. This report dramatically rewrote the Twenty-Second Report to state that Senator Duffy’s living expenses and living allowance should not have been claimed. In addition,
17 the CIBA referred to Senator’s Duffy’s repayment of $90k to the proper authorities for investigation. 53.
The CIBA received no new information from Deloitte prior to the dramatic revision
of the CIBA’s opinion. The same Deloitte report was used to justify two radically different determinations: that Senator Duffy’s expenses were validly claimed versus that Senator Duffy’s expenses were wrongly claimed and his actions should be referred to the RCMP for investigation. 54.
Justice Vaillancourt, in R. v. Duffy, [2016] OJ No. 2033 would later review these
same expenses. He concluded that when Senator Duffy designated his primary residence as PEI and made living expense claims for his NCR residence he “committed no prohibited act, violated no Senate rules and did not in all circumstances commit the actus reus of fraud.”
55.
Justice Vaillancourt also found that when Senator Duffy made his primary
residence designation and his living expense claims he did so based on: (a)
The
direct
advice
of
Senator
Tkachuk, the vice-chair of the authoritative Standing Committee on Internal Economy; (b)
The
memorandum
Senate
Leader
received LeBreton
by and
authored by Mr. McCreery advising
18 that Senator Duffy could reside in Ottawa 99% of the time; (c)
The statements of the Prime Minister of Canada that the effect of Senator Duffy’ appointment to represent PEI changed the status of his PEI residence;
(d)
The
wording
of
the
designation/declaration form; and (e)
The constitutional importance that Senator Duffy be at all times a resident of PEI.
56.
Justice Vaillancourt also found, as did Deloitte, that all of Senator Duffy’s travel
claims were appropriate.
The Expulsion from the Senate 57.
On October 17, 2013, Senator Carignan, then Leader of the Government in the
Senate, moved that Senator Duffy be suspended for what he alleged was "gross negligence" in the management of his parliamentary resources and that, during the period of suspension all remuneration or reimbursement of expenses from the Senate, including any sessional allowance or living allowance and pension accrual, be withheld, and that
19 Senator Duffy be denied the right to use Senate resources and that he not receive any other benefit from the Senate. 58.
This so called “suspension” was in effect anexpulsion that went well beyond any
power that the Senate had to either regulate its internal proceedings or to discipline its members. 59.
The expulsion created a vacancy in the Senate, on a basis outside the Senate ’s
statutory authority. 60.
The expulsion and the withholding of sessional allowance etc. deprived Senator
Duffy of remuneration was unnecessary for the proper functioning of the Senate and was an unprecedented abuse of power. 61.
The expulsion implemented the resolution of the Senate outside Parliament and
affected the rights outside Parliament of Senator Duffy and the people of Prince Edward Island whom he represented. 62.
The expulsion was affected for an improper purpose and was therefore without
legal or constitutional authority. 63.
The "gross negligence" alleged was the accrual of expenses said to be not in
accordance with the Senate Administrative Rules, policies or guidelines. The PMO had said the expenses claimed were within the rules. Deloitte had said the expenses claimed were within the rules. Even the CIBA had said the expenses claimed were within the rules.
20 64.
Senator Duffy attended at the Senate in October and November 2013, to try to
defend himself from the motion for suspension, desp ite his doctor’s orders that he should not be working. 65.
On November 5, 2013, the Senate voted in favour of Senator Duffy’s suspension,
an exercise of power that had never been exercised before except in the face of criminal charges being laid or willful non-attendance at the Senate. 66.
Senator Duffy’s suspension was made inthe absence of a hearing on the charge of
gross negligence, in defiance of the presumption of innocence until proven guilty according to law, in the absence of a fair and public hearing by an independent and impartial tribunal, and contrary to the principles of natural justice and to fundamental justice. 67.
On June 4, 2015, the Auditor General of Canada reported to the Senate that 30
Senators, not including Senator Duffy, were found to have incurred expenses that were determined not to be in accordance with the applicable Senate rules, policies or guidelines, such inappropriate expenses totalled $772,838.87. 68.
Not one of those 30 Senators, who included Senator Carignan who had moved the
motion against Senator Duffy, was accused of "gross negligence", suspended, denied sessional allowance, living allowance, pension accrual, or use of Senate resources or any other Senate benefit. 69.
Only Senator Duffy was punished in the absence of procedural fairness, and then
only for purely political motives.
21 70.
Senator Duffy’s “suspension” had no limits. Due to the Senate’s actions, Senator
Duffy’s place in the Senate became vacant:not for a day, or a week, or even a month. The vacancy was indefinite until Parliament was prorogued - a date which was unknown at the time. His “suspension” continued until August 5, 2015 when Parliament was prorogued due to the pending election. 71.
During all this time, Prince Edward Island did not have its full complement of
representation in the Senate. 72.
At the time of prorogation in August, 2015, Senator Duffy had been charged with a
criminal offence. His “suspension” continued until he was acquitted of all charges on April 21, 2016.
The RCMP Investigation 73.
The RCMP investigation into Senate expenses included the investigation into Nigel
Wright due to the $90k payment and for exerting pressure on the Senate sub-committee to cleanse the Senate report relating to Senator Duffy’s audit. 74.
As pertaining to Nigel Wright, the RCMP had been considering charges of breach
of trust, frauds on the government, bribery of a judicial officer and Parliament of Canada offences. 75.
On June 13, 2013, Nigel Wright’s lawyer, Patrick McCann, contacted the RCMP
and advised that at the time Mr. Wright provided the $90k payment, he was unaware of any fraudulent expense claims on Senator Duffy’s behalf . He also indicated he was willing to meet with RCMP investigators.
22 76.
On March 18, 2014, two RCMP officers interviewed Nigel Wright in the presence
of his lawyers. The purpose was to ascertain whether he could be a witness and provide Senator Duffy’s calendar. After the interview, Nigel Wright was advised that the RCMP had no intention to charge him but that they expected to call him as a witness. 77.
At least twice in the many months prior to charges being laid, Don Bayne, lawyer
for Senator Duffy, offered to sit down and discuss Senator Duffy’s side of the story with the Crown and the RCMP. Senator Duffy was given no real chance to explain his side of the story before the decision was made to charge him. 78.
The RCMP instead determined, without speaking to Senator Duffy, that Nigel
Wright had been forthcoming. They believed they could not have obtained emails relating to PMO dealings with Senator Duffy if it were it not forNigel Wright’s cooperation. But they never asked Senator Duffy for his emails.
79.
The emails, which were later to form the key evidence regarding Senator Duffy,
were obtained by the RCMP and reviewed by the RCMP months before Senator Duffy was charged. These are the same emails that Justice Vaillancourt determined revealed the truth of the PMO and Senate pressure against Senator Duffy. 80.
The RCMP also credited Nigel Wright with obtaining Senator Duffy’s detailed
day-to-day calendar of events since his appointment to the Senate. Again, Senator Duffy was never given an opportunity to cooperate and provide the calendar himself. 81.
The RCMP believed that charges against Nigel Wright would weaken the case
against Senator Duffy whom they made the prime focus of the investigation.
23 82.
The RCMP further believed that although Mr. Wright was influential and held an
important position, Senator Duffy was a more high-profile target. The investigation into the Senate of Canada was the primary focus of the RCMP and nothing would or could dissuade them from that main target, even the clear email evidence which they had in their possession. 83.
On April 15, 2014, the RCMP dropped its nearly year-long investigation into Nigel
Wright on the basis that the evidence gathered did not support criminal charges against him. 84.
On July 17, 2014, Senator Duffy was charged by the RCMP with 31 offences
relating to Senate expenses and the $90k cheque.
The Findings of Justice Vaillancourt in R. v. Duffy 85.
In R. v. Duffy, Justice Charles Vaillancourt concluded that the facts related to the
$90k payment were explicitly outlined in the email traffic that flowed between members of the PMO, members of the Senate and Senate staff, Senator Duffy, and Janice Payne, counsel for Senator Duffy. 86.
These emails were in the possession and fully known by the RCMP many months
prior to charges being laid against Senator Duffy. 87.
Justice Vaillancourt concluded that the PMO wielded significant power. He stated
that in an effort to calm the political storm that was Senator Duffy’s expense issue, the methods employed by the PMO seemed to know no bounds.
24 88.
Justice Vaillancourt concluded that the actions of Nigel Wright and the PMO were
mindboggling and shocking: Paragraphs: [1030]Was Nigel Wright actually ordering senior members of the Senate around as if they were mere pawns on a chessboard? [1031]Were those same senior members of the Senate meekly acquiescing to Mr.
Wright’s orders? [1032] Were those same senior members of the Senate robotically marching forth
to recite their provided scripted lines? [1033]Did Nigel Wright really direct a Senator to approach a senior member of an
accounting firm that was conducting an independent audit of the Senate with the intention to either get a peek at the report or part of the report prior to its release to the appropriate Senate authorities or to influence that report in any way? [1034]Does the reading of these emails give the impression that Senator Duffy was
going to do as he was told or face the consequences? [1035] The answers to the aforementioned questions are: YES; YES; YES; YES;
YES; and YES!!!!! [1036] The political, covert, relentless, unfolding of events is mindboggling and
shocking. [1037]The precision and planning of the exercise would make any military
commander proud.
25 [1038]However, in the context of a democratic society, the plotting as revealed in
the emails can only be described as unacceptable. Putting aside the legalities with respect to some of the maneuvers undertaken and the intensity of the operations, a simple question comes to mind. Why is the PMO engaged in all of this activity when they believed that Senator Duffy’s living expense claims might very well have been appropriate? 89.
After extensively and exhaustingly reviewing the evidence and considering the
arguments of counsel, Justice Vaillancourt found that based on all the evidence, Senator Duffy was forced into accepting Nigel Wright’s funds so that the government could rid itself of an embarrassing political fiasco that just was not going away: they aimed to put an end to the “Chinese water torture of more facts becoming public which the Prime Minister does not want.” 90.
In addition to finding that Senator Duffy resisted against the Forced Scenario,
Justice Vaillancourt also found that Senator Duffy did not receive a true advantage or benefit. In fact, he found that the opposite was true: the true recipients of any benefit (the disappearance of political embarrassment) were Nigel Wright, the PMO, the Prime Minister and the Conservative Party of Canada. By implication, this also benefitted the Conservative members of the Senate who were conscripted to assist the PMO in pressuring their “scenario” upon Senator Duffy. 91.
At trial, Crown Counsel suggested that Senator Duffy’s actions were driven by
deceit, manipulations and carried out in a clandestine manner representing a serious and marked departure from the standard expected of a person in Senator Duffy’s position of
26 trust. Justice Vaillancourt stated that “if one were to substitute the PMO, Nigel Wright and others for Senator Duffy in the aforementioned sentence, you would have a more accurate statement.” 92.
Senator Duffy was acquitted of all counts. No appeal was taken from the judgement
and factual findings of Justice Vaillancourt they are final.
Continued Prosecution by the Senate 93.
On July 25, 2016, well after Judge Vaillancourt’s factual findings and complete
exoneration of Senator Duffy, the Senate announced that it would be clawing back $17,000 from Senator Duffy’s salary to recover funds theyasserted were inappropriately claimed as Senate expenses. 94.
These expenses were part of the expenses examined by Judge Vaillancourt and
factually found by the court to have been validly made. 95.
On August 24, 2016, the CIBA rejected a request to partially reimburse Senator
Duffy for legal expenses and disbursements incurred in the successful defence of the criminal charges against him, despite the provisions of the Senate‘s own policy of legal re-imbursement. 96.
On December 12, 2016, Senator Duffy wrote to the Senate and requested
reimbursement of the salary, living allowances and pension accruals that were withheld because of the Senate motion to suspend him on November 5, 2013. 97.
The Senate, to date, has not replied.
27
Prolonged Media Scrutiny 98.
The media scrutiny regarding expenses concerns began in earnest in December
2012. The media covered the senate committee investigation, the Deloitte investigation, the payment of the 90K and extensive exposure of the Senate. The media frenzy extended from there to the very public suspension of Senator Duffy from his position without due process and for an indefinite period of time. 99.
Senator Duffy was then subjected to a lengthy criminal investigation and trial. The
lengthy criminal trial was a national media focus for a year. 100.
Senator Duffy and his family have been subjected to intense and unrelenting
negative media coverage for over 3 years. 101.
Even after his acquittal on all charges and return to the Senate, the media scrutiny
into Senator Duffy’s life and work has not abated. 102.
Senator Duffy’s reputation is forever tied to the Senate expense investigation, the
controversy over the $90K payment, and the subsequent criminal trial. It has had a profound effect on his reputation, health and well-being and that of his family. 103.
As result of the actions of the Defendants, Senator Duffy suffered significant
emotional, physical, and economic damages as discussed more fully in the damages section below.
IV. LIABILITY
A. The Senate and the Crown
28
Malicious Prosecution 104.
The Senate is liable for malicious prosecution on the following grounds: (a)
The Senate, through the CIBA, initiated
an
investigation
into
Senator Duffy’s expense claims; (b)
The CIBA engaged a third-party auditor
to
assist
with
the
investigation of Senator Duffy’s claims on February 14, 2013; (c)
The CIBA cleared Senator Duffy of any
administrative
wrong
doing
based on the Deloitte Report on May 9, 2013; (d)
The CIBA completely reversed its opinion, based on no new evidence before it, solely for political damage control purposes and pursuant to the PMO direction. CIBA concluded on May 22, 2013 that Senator Duffy’s expenses were wrongly claimed;
29 (e)
The CIBA referred Senator Duffy’s case to the RCMP for investigation on May 29, 2013;
(f)
Neither the CIBA nor the Senate as a whole,
conducted
any
further
investigation, committee hearings, or any other form of investigation into Senator Duffy’s actions or expense claims; (g)
Notwithstanding any usual practice or provision of the Rules of the Senate, and without any further investigation,
hearing,
or
introduction of evidence, the Senate moved to suspend Senator Duffy for “gross negligence” on October 22, 2013; (h)
There was no hearing, no evidence called and no genuine opportunity for Senator Duffy to meaningfully respond to the vaguely worded but very serious allegations against him;
30 (i)
On November 5, 2013, the Senate voted to suspend Senator Duffy without pay, including expulsion from the Senate Chamber, denial of pension accrual, denial of all Senate expenses, denial of access to his office, and denial of living and travel allowances;
(j)
Senator Duffy was charged by the RCMP with 31 offences relating to Senate expenses on July 17, 2014;
(k)
The suspension of Senator Duffy ended
upon
the
dissolution
of
Parliament on August 2, 2015; (l)
After the dissolution of Parliament on August 2, 2015, the Senate continued its suspension without pay of Senator Duffy (and all the other sanctions) based on the charges he was
facing
criminal trial;
and
the
upcoming
31 (m)
Senator Duffy was acquitted on all charges by Judge Vaillancourt on April 21, 2016;
(n)
On July 25, 2016, and despite the Judgment of the Court, the Senate proceeded to deduct further amounts from Senator Duffy’s salary based on
the
same
expense
claims
analyzed by Judge Vaillancourt at trial
and
found
to
have
been
appropriately claimed and within Senate administrative rules; (o)
On August 24, 2016, the CIBA improperly rejected a request to partially reimburse Senator Duffy for
legal
disbursements
expenses incurred
and in
the
successful defence of the criminal charges he faceddespite the Senate’s own policy for such reimbursement; (p)
Senator Duffy sent a written request to the Senate for reimbursement of
32 his wrongfully withheld salary, pension
accrual
and
living
allowance during the period of suspension. The Senate has failed to respond to Senator Duffy; (q)
The Senate lacked reasonable and/or probable grounds to both commence and continue the prosecution against Senator Duffy considering that:
(i)
The Deloitte report concluded Senator Duffy had not violated any Senate expense rules;
(ii)
The Twenty-Second CIBA report cleared Senator Duffy of any administrative malfeasance in his senate expense claims;
(iii)
The Twenty-Sixth CIBA report dramatically reversed its position on Senator Duffy’s claimed expenses based on no new evidence , based on the PMO’s political goals, and without affording Senator Duffy fair notice and real and meaningful opportunity to comment;
(iv)
The decision to repay $90,000 in valid expense claims was forced upon Senator Duffy by Nigel Wright and the PMO as part of a political damage control scenario scripted by the PMO;
33 (v)
Judge Vaillancourt found that Senator Duffy had not violated any Senate expense rules;
(vi)
The Senate lacked the constitutional power to suspend and effectively
expel
and
punish
Senator
Duffy
under
the
circumstances; on the basis’s set out in paragraphs 58 to 62 above; (vii)
In the circumstance suspending Senator Duffy without limit in time amounted to declaring the place of Senator Duffy to be vacant, in violation of Constitution Act, 1867, s. 31;
(viii) The Senate lacked the constitutional power to suspend a Senator’s pay in the absence of a final criminal conviction or wilful absence from the Senate; (ix)
In the alternative, if the Senate had the constitutional power, it did so in the absence of facts that made it necessary for the Senate to use that power under the circumstances;
(x)
In the further alternative, if the Senate had the power to suspend Senator Duffy under the circumstances, the scope of the power used far exceeded what was constitutional under the circumstances;
(xi)
The Senate failed to follow the rules of natural justice or fairness in its investigation, prosecution and punishment of Senator Duffy;
34 (xii)
The Senate failed to abide by section 7, 11(d) and/ or 12 of the Charter of Rights and Freedoms, in its investigation, prosecution
and punishment of Senator Duffy; (xiii)
The motivation of the Senate to investigate, prosecute and punish Senator Duffy was based on the improper purpose of furthering political agendas; self-serving to the political popularity of the Government of the Day; and in violation of the Senate’s duty to act as a sober second thought to government , not as the government’s servant;
(xiv)
The lack of evidence to support the charge of gross negligence;
(xv)
There was no actual evidence of criminal activity and/or criminal motivation on the part of Senator Duffy; and
(xvi)
Despite the complete exoneration of Senator Duffy, the Senate’s continuing persecution and prosecution of the Senator on the same matters determined by a Court of law.
105.
The Senate is vacuously liable for the torts of all its members including without
limiting the generality of the foregoing, The Senators affiliated with the governing Conservative party who used or abused their authority as set out in paragraph 104(q) above. 106.
As such, the Plaintiff claims damages for malicious prosecution.
Commented [Cu1]:Particularize: you are probably referring to s. 7, but in view of the referral to the RCMP you might consider also referring to s. 11(d), and 12 as you do below.
35
Misfeasance in Public Office 107.
The Senate is liable for the misfeasance in public office of its Senators as set out in
sub paragraphs 104 (d), (e), (f), (g), (h), (i), (l), (n), (o), and (q). 108.
These actions were motivated by an improper and unlawful purpose, thus making
these acts unlawful in the administrative law sense. 109.
The members of the Senate affiliated with the governing Conservative party knew
that their actions would harm Senator Duffy and they did.
Unjust Enrichment 110.
The Senate is liable to Senator Duffy for unjust enrichment: (a)
The Senate wrongfully withheld Senator Duffy’s salary and related benefits from November 2013 to August 2015 and did not reimburse the withheld salary or pension accrual
upon
Senator
Duffy’s
acquittal on all charges; (b)
Senator Duffy has been deprived of his constitutionally protected salary and pension accrual, living and travel expenses as well as suffering
36 the public shame of denial of access to the Senate or even his own office; (c)
The Senate wrongfully reclaimed and there by unjustly enriched itself by deducting $17,000 from Senator Duffy’s current salary for past expenses deemed valid by Judge Vaillancourt;
(d)
Senator Duffy was deprived of partial
legal
expense
indemnification during the above noted investigation, prosecution, and trial. (e)
The Senate lacks the power to withhold the Senator’s salary under the circumstances;
(f)
The Senate lacks the power to set-off administrative expenses from the Senator’s
salary
circumstances;
under
the
37 (g)
The Senate unjustly enriched itself through procedures and actions that violated the rules of natural justice and the Charter, but which caused damages to Senator Duffy; and
(h)
The Senate acted ultra vires and/ or without legal basis in unjustly enriching itself at the expense of Senator Duffy. The findings in the criminal proceeding against Senator Duffy are conclusive in these civil proceedings and therefor the actions of the members of the Senate constitute a collateral attack upon the decision of Judge Vaillancourt.
111.
As such, the Plaintiff claims damages for unjust enrichment.
Unconstitutional Actions 112.
Section 31 of the Constitution Act sets out the basis upon which the place of a
Senator can become vacant. As none of these pre-conditions existed, the Senate was acting outside of its authority when it “suspended” Senator Duffy indefinitely without pay or privileges.
Commented [Cu2]:I would reorganize this section to show more clearly a roadmap for the required e lements of UE, ie an enrichment, a corresponding impoverishment, and the absence of any juristic reason for these, following Dickson’s classic statement, and its progeny in the jurisprudence., As to the last requirement, the comments above, as to improper and illegal or ultra vires actions in the administrative law sense, could be fortified by the collateral attack rule– ie the findings in a criminal proceeding are conclusive in civil proceedings (subject to claims of abuse of process or fresh evidence which are not applicable here): see Toronto v, CUPE Local 79, 2003 3 SCR 77, and generally Perrell and Morden, The Law of Civil Procedure in Ontario, p 92.
38 113.
The Senate unconstitutionally withheld and failed to reimburse, the Plaintiff’s
constitutionally protected Senator’s remuneration and pension accrual (as well as living and travel allowance) in violation of the Constitutional Act, 1867 and the Parliament of Canada Act.
114.
As such the Plaintiff claims damages for this constitutional tort. The Plaintiff also
seeks a declaration that the suspension of Senator Duffy together with the suspension of his salary, suspension of his benefits, claw-back of expenses, his virtual expulsion and ban from the Senate on Nov. 5, 2013 and onwards was unconstitutional. 115.
The Plaintiff also seeks a declaration that the investigation, prosecution and
punishment of Senator Duffy by the Senate, as described above, lacked procedural fairness and were in violation of the rules of natural justice.
Charter 116.
The actions of the Senate as described above deprived the Plaintiff of his rights
under section 7, 11 and 12 of theCharter. 117.
The actions of the Senate as described in the paragraphs above constitute a
violation of the Plaintiff’s right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, as guaranteed by section 7 of theCharter, for which the Plaintiff claims damages as remedy pursuant to section 24 of the Charter. 118.
The actions of the Senate as described in the paragraphs above constitute a breach
of the Plaintiff’s rights with regard to proceedings in penal matters to:
39 (a)
To be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(b)
Not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted
an
offence
under
Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; and (c)
If finally acquitted of the offence, not to be tried for it again.
all guaranteed by section 11 of theCharter, for which the Plaintiff claims damages as a remedy pursuant to section 24 of theCharter. 119.
The treatment of Senator Duffy by the Senate was a violation of his right to be free
from cruel and unusual punishment pursuant to section 12 of the Charter, for which the Plaintiff claims damages as a remedy pursuant to section 24 of the Charter.
40 120.
Each of the allegations outlined above as supporting a specific cause of action also
forms a part of the allegations relied upon by the Plaintiff as supporting each of the other causes of action. 121.
The Senate is vicariously liable for the torts committed by its’ Senators and is liable
for the actions of the whole Senate. 122.
Furthermore, and/or in the alternative, the AGC on behalf of the Crown is
vicariously liable for torts committed by her agents including the senate.
B. The Attorney General of Canada on Behalf of the RCMP
Negligent Investigation 123.
The AGC, on behalf of the RCMP, is liable for negligent investigation:
(a)
It initiated criminal proceedings against Senator Duffy on July 17, 2014;
(b)
It was negligent in its duty owed to suspects of a crime and fell well below the applicable standard of care;
(c)
The charges were fully resolved in favour of the Plaintiff on April 21,
41 2016 and factual findings were made that the plaintiff’s expense claims and conduct were appropriate and within the Senate administrative rules; and (d)
The Plaintiff suffered damages as a result of the negligence.
124.
The AGC was negligent on the following grounds: (a)
It failed to conduct an appropriate investigation
prior
to
charging
Senator Duffy; (b)
It lacked reasonable and probable grounds to charge Senator Duffy;
(c)
It failed to obtain any evidence of any criminal activity on the part of Senator Duffy prior to his arrest;
(d)
It treated Senator Duffy as a valuable target which produced an investigation tunnel-vision
blinded and
by
incorrectly
focused on Senator Duffy, excluding
42 other potential actors on the basis of their value, to the detriment of Senator Duffy and to the detriment of the Canadian public as a whole; (e)
It failed to provide Senator Duffy with a real opportunity to provide his side of the story prior to laying charges;
(f)
It
disregarded
ignored
and
improperly
exculpatory
accounting/audit
expert evidence,
exculpatory emails, and exculpatory witness interviews prior to the charging of Senator Duffy; (g)
It failed in its duty to be full, frank and fair in the Informations to Obtain (ITO’s)
(h)
It consented to and/or facilitated access
to
the
contents
of
Informations to Obtain (ITOs) when they knew or ought to have known that the contents of those ITOs were
43 one-sided, unfair and/or inaccurate and would cause damage to Senator Duffy; and (i)
The AGC is vicariously liable for the torts committed by the RCMP and its Officers.
125.
The negligent investigation by the RCMP caused Senator Duffy emotional,
physical, economic and reputational damage as a direct result of the RCMP’s negligent investigation. 126.
As such, the Plaintiff claims damages for negligent investigation.
Negligence 127.
The Plaintiff states that the AGC is negligent, the particulars of which include, but
are not limited to, the following: (a)
It failed to ensure that the RCMP and its Officers were properly trained and/or that guidelines were provided on
proper
regarding
police
probable
procedure grounds
to
charge, and investigative techniques;
44 (b)
Alternatively, if any such training and/or guidelines were provided, as outlined above, the RCMP and its Officers, for whom it is responsible, failed
to
ensure
that
the
training/guidelines were followed; (c)
It failed to ensure proper supervision of its employees in the execution of their duties.
128.
The negligence of the AGC caused Senator Duffy emotional, physical, economic
and reputational damage as a direct result of the AGC’s negligence. 129.
As such, the Plaintiff claims damages for negligence.
V. DAMAGES
As a result of the joint and/or several actions of the Defendants, Senator Duffy claims damages for the following:
General Damages 130. (a)
Pain,
suffering
and
loss
of
enjoyment of life, including the loss of friendships and trust. Senator
45 Duffy
has
continues
to
suffered
from
and
suffer
from
the
alienation of family and friends. For a time, he was even prevented from speaking with his own children who were on the witness list; (b)
Extreme damage to his reputation nation-wide
including,
continual
mocking and satire in the media;
(i)
Severe anxiety; and
(ii)
Depression.
(i)
(c)
Mental distress, including,
(d)
Physical distress, including
Aggravation to his heart condition including the need for a second open-heart surgery;
(ii)
Insomnia and nightmares;
(iii)
Exacerbation of his diabetes condition including diabetic retinopathy; and
(iv)
Headaches.
46 (e)
Senator Duffy’s pre-existing heart condition was greatly exacerbated due to the actions of the Defendants. His heart condition deteriorated significantly as a result, requiring extensive and significant surgery; and
(f)
Senator Duffy has been required to take increased and new medications to treat the exacerbation of ongoing medical issues as well as to treat new conditions
caused
by
the
Defendants’ actions. 131.
Senator Duffy’s acquittal at trial has not remedied his damages. A significant stigma still remains. Senator Duffy continues to suffer emotional and physical damage due to the continued and prolonged reputational damage that continues to this day, including daily mention, mockery and ridicule in media outlets nation-wide.
Loss of Income, Loss of Competitive Advantage and Loss of Earning Capacity
47 132.
Due to the actions of the Defendants, Senator Duffy suffered the following
economic losses: (a)
Loss of salary from Nov. 5, 2013 to Aug. 2, 2015;
(b)
Loss of living allowance from Nov. 5, 2013 to April 22, 2016;
(c)
Loss
of
pension
accrual
from
November 5, 2013 to April 22, 2016. (d)
Partial loss of salary from July 25, 2016 onward.
133.
The Plaintiff, who had been a frequently requested and high-profile speaker at
events, lost all future speaking engagements and the ability to earn income outside of his Senate salary, which itself was suspended for the period outlined above. 134.
The Plaintiff claims the above damages as against the Senate, save for the portion
of pension accrual lost for the period from Aug 2, 2015 to April 22, 2016, which he claims as against the AGC.
Special Damages 135.
As a result of the actions of the Defendants as described above, Senator Duffy
suffered special damages, including, over three years of legal fees incurred to defend
48 himself from administrative, criminal and penal charges, the particulars of which will be provided prior to trial.
Punitive Damages 136.
The actions of the Defendants, as described above, were malicious, callous and
high-handed and politically motivated. The actions of the Defendants, as described above, serve to undermine the public’s confidence inthe Senate, the PMO, the AGC, the RCMP and the administration of justice. Senator Duffy therefore claims punitive and/or aggravated damages. 137.
The Plaintiff states that the RCMP officers involved in Senator Duffy’s case were
acting within the authority of their employment, as such the AGC is liable for their actions pursuant to section 5 of the Proceedings Against the Crown Act, R.S.O, 1990, c. P. 27. 138.
The Plaintiff pleads and relies on the following legislation: (a)
Courts of Justice Act, R.S.O. 1990,
c. 43, as amended; (b)
Proceedings Against the Crown Act,
R.S.O, 1990, c. P. 27; as amended; (c)
Negligence Act, and R.S.O. 1990, c
N.1, as amended; (d)
Parliament of Canada Act;
49 (e)
Constitution Act, 1867; and
(f)
Canadian Charter of Rights and Freedoms.
139.
The Plaintiff proposes that this action be heard in the City of Ottawa, Canada.
July 17, 2017
GREENSPON, BROWN & ASSOCIATES 331 Somerset Street West Ottawa ON K2P 0J8 Lawrence Greenspon
[email protected] Tina Hill
[email protected] Tel: 613-288-2890 Fax: 613-288-2896
Counsel to the Plaintiff
SENATOR MICHAEL DENNIS DUFFY Plaintiff
and
THE SENATE OF CANADA and THE ATTORNEY GENERAL OF CANADA Defendants
Court File No:
ONTARIO SUPERIOR COURT OF JUSTICE Proceeding commenced at Ottawa
STATEMENT OF CLAIM
GREENSPON, BROWN & ASSOCIATES 331 SOMERSET STREET WEST OTTAWA ON K2P 0J8 LAWRENCE GREENSPON (#20103D) TINA HILL Tel: (613) 288-2890 Fax: (613) 288-2896
Counsel to the Plaintiff
