Schreiber v Canada (Attorney General), 2021 ABQB 679

Court of Queen’s Bench of Alberta Citation: Schreiber v Canada (Attorney General), 2021 ABQB 679 Date: 20210826 Docket: 9703 20183 Registry: Edmonton Between: Karlheinz Schreiber Plaintiff - and - Attorney General of Canada and Her Majesty the Queen In Right of Canada Defendants _______________________________________________________ Reasons for Decision in relation to the Appeal of Master Birkett’s Decision issued on August 15, 2019 (“Master’s Decision”) of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Background

[1] The Appeal before the Court has a long history and involves several related actions and proceedings. The procedural historycan be briefly summarized as follows: • In September of 1995, the Minister of Justice of Canada sought the assistance of the Government of Switzerland to obtaininformation related to Mr. Schreiber’s Swiss bank accounts as part of an RCMP investigation then being conducted in relation to Mr.Schreiber. As a result, the Swiss authorities issued an order for the seizure of Mr. Schreiber’s Swiss bank account records.

Portions of theLetter of Request (the Request Letter) which was sent on behalf of the Minister of Justice were subsequently made public. • In July of 1996, Mr. Schreiber challenged the issuance of the Request Letter in Federal Court.

He took the position that s 8 of theCanadian Charter of Rights and Freedoms (the Charter) applied to a search and seizure request made by the Government of Canada(Canada) in relation to his offshore bank accounts (Schreiber v Canada (Attorney General), (FC), [1996] 3 FC 931,appeal dismissed by (FCA), [1997] 2 FC 176 (Fed CA), appeal to SCC allowed by (SCC), [1998] 1SCR 841). • In October of 1997, Mr. Schreiber brought a claim against the Attorney General of Canada and Her Majesty the Queen in Right ofCanada in relation to the Request Letter. He alleged ss 7 and 8 Charter breaches, as well as defamation.

He sought damages for thesebreaches, loss of privacy, damage to his reputation, security of his person and his liberty and livelihood. This claim is the subject matterof the Action which is the subject matter of this Appeal. • In May of 1998, the majority of the Supreme Court of Canada determined that the Request Letter did not engage s 8 of theCharter, because all of the aspects of state compulsion in relation to privacy were undertaken by authorities in Switzerland (Schreiber vCanada (Attorney General), (SCC), [1998] 1 SCR 841). • In May of 1999, Mr.

Schreiber’s Statement of Claim was amended to delete the ss 7 and 8 Charter breach allegations.

Section 8was removed on the basis of its being res judicata.

Section 7 allegations were removed on the basis that they were premature and raisedno cause of action. Both parties conducted discoveries after the close of pleadings and the exchange of documents. Some resultingCrown undertakings remain outstanding. • In November of 1999, Mr. Schreiber commenced another action seeking $1 million in damages alleged to have resulted frombreaches by Canada and the Government of Germany (Germany).

The pleadings claimed that both countries failed to ensure that Mr.Schreiber’s arrest and detention were consistent with ss 7 and 9 of the Charter (Schreiber v Canada (Attorney General), (ON SC), [2000] OJ No 1813 (Sup Ct)). This action was dismissed against Germany and was stayed against Canada pendingresolution of extradition proceedings. The stay was set aside on appeal (Schreiber v Canada (Attorney General), (ON CA), [2001] OJ No 4778 (Ont CA)). The dismissal as against Germany was upheld on appeal to the Supreme Court of Canada(Schreiber v Canada (Attorney General), 2002 SCC 62). • In 2002, Mr.

Schreiber challenged the constitutionality of ss 32(1)(a), 32(1)(c), and 33 of the Extradition Act, SC 1999 c 18. TheOntario Superior Court of Justice found that the provisions were constitutionally valid but also indicated that the ruling did not mean thatMr. Schreiber “is not entitled to claim that their operation in a given instance may not violate ... s. 7 rights” (Germany (FederalRepublic) v Schreiber, [2002] OJ No 3170). • In May of 2004, the Ontario Superior Court of Justice ordered Mr.

Schreiber’s committal for extradition (the Committal Order)(Germany (Federal Republic) v Schreiber, (ON SC), [2004] OJ No 2310). • In October of 2004, the Minister of Justice issued a Surrender Order with reasons, requiring that Mr. Schreiber surrender forextradition to Germany to face charges of tax evasion, fraud, forgery and bribery. The reasons given by the Minister included referenceto ss 6 and 7 of the Charter, bias and abuse of process, and misconduct regarding the extradition arrest. • In 2006, Mr. Schreiber appealed the Committal Order and sought judicial review of the Surrender Order.

The Ontario Court ofAppeal rejected his argument that the surrender was unjust, oppressive and contrary to s 7 of the Charter. It found no error in theMinister’s decision (Germany (Federal Republic) v Schreiber, [2006] OJ No 789). The Supreme Court of Canada denied leave toappeal (Germany (Federal Republic) v Schreiber, [2006] SCA No 146). • While the leave application was pending, Mr. Schreiber had requested that the new Justice Minister reconsider the former JusticeMinister’s Surrender Order. The new Minister refused to reconsider the Order. • In May of 2007, Mr.

Schreiber brought a judicial review application to quash the Minister’s decision to refuse to rescind theSurrender Order. The Application was brought on the basis of s 7 of the Charter. The Ontario Court of Appeal considered whether Mr.Schreiber’s surrender would be “simply unacceptable” or would sufficiently shock the conscience of Canadians (Schreiber v Germany(Federal Republic), 2007 ONCA 354, citing Canada (Minister of Justice) v Pacificador, (2002) (ON CA), 216DLR (4th) 47). The Court of Appeal held that Mr.

Schreiber’s extradition would not offend Canadians’ sense of what is fair, right andjust. • In November of 2007, Mr. Schreiber brought an application for judicial review of the new Minister’s decision to decline toreconsider the Surrender Decision. The Ontario Court of Appeal dismissed the judicial review application (Schreiber v Canada(Minister of Justice), 2007 ONCA 791). • In 2007, Mr. Schreiber also applied to the Federal Court of Canada for judicial review of Canada’s actions from January 1995 tothat point “as they relate to the fundamental rights and freedoms” of Mr. Schreiber. In his application, Mr.

Schreiber sought an orderincluding a declaration that his Charter rights had been breached. The Federal Court concluded that these issues had already beendecided by the Ontario Court of Appeal. Therefore, it declined to hear the judicial review (Schreiber v Canada (Attorney General),2007 FC 618). The Federal Court of Appeal dismissed the appeal of this decision (Schreiber v Canada (Attorney General), 2008 FCA147).

• In 2008, Mr. Schreiber made further submissions to the Minister, requesting that the Minister reconsider the Surrender Order. He also made another judicial review application to the Ontario Court of Appeal ( Schreiber v Canada (Attorney General) , 2008 ONCA 575 ). • In March of 2009, Mr. Schreiber was questioned in relation to this Action. His answers to undertakings remain outstanding. • In August of 2009, Mr.

Schreiber was extradited to Germany, where he was convicted of tax evasion and sentenced to six and a half years imprisonment. • Between 2009 and 2013, counsel for Canada received numerous telephone calls advising that Mr. Schreiber intended to pursue the Action. • In January of 2010, counsel for Canada received a letter from Mr. Schreiber’s counsel which enclosed documents related to the Action. • In 2012, Mr. Schreiber suffered a heart attack. As a result, he was released from prison and placed under house arrest. • In March of 2016, Mr.

Schreiber was paroled as a result of his medical condition. • In June of 2017, counsel for Canada received a letter from Mr. Schreiber’s counsel again advising that Mr. Schreiber intended to pursue the Action. • In October of 2017, the Crown brought an application to dismiss the Action for long delay pursuant to Rule 4.33 of the Alberta Rules of Court , AR 124/2010 or, in the alternative, pursuant to Rule 4.31 . The application was adjourned to February 2019. • In 2019, Mr.

Schreiber brought a cross-application, seeking to amend his Statement of Claim to include alleged Charter breaches and to compel Canada to answer outstanding undertakings. • On August 15, 2019, Master Birkett found that more than three years had passed without a significant advance in the Action. She granted the Crown’s application to dismiss the Action pursuant to Rule 4.33 . It is that decision which is the subject of this Appeal.

Position of the parties Position of the Defendants (“Canada”) [ 2 ] Canada argues that the Master correctly dismissed the Action for long delay, correctly finding that there had not been a significant advance since the examination of Mr. Schreiber in March 2009. [ 3 ] Canada submits that Rule 4.33 is mandatory, unless an exception under that Rule applies. It takes the position that no exception applies in this case. In addition, Canada submits that the Action could also have been dismissed on the basis of Rule 4.31, because the delay was both inexcusable and inordinate. Position of Mr. Schreiber [ 4 ] Mr.

Schreiber acknowledges that the last significant advance in the Action occurred in 2009. However, he submits that this is a unique case in which the delay was caused, or substantially contributed to, by Canada’s Charter infringing conduct during the course of the litigation. [ 5 ] Mr. Schreiber advances three main arguments for why Rule 4.33 does not apply. He argues, firstly, that constitutional principles of due process and abuse of process would be offended if Rule 4.33 were applied in this case.

He alleges that there are multiple Charter breaches that remain unresolved, seeking in his cross-application to add ss 6, 7 and 12 Charter breaches to the Statement of Claim. Mr. Schreiber submits that these interlocutory breaches caused the significant delay and contributed to the tortious losses claimed by him in the Action. He argues that Canada should not be able to have the Action dismissed for long delay, since it was a major cause of that delay. To permit Canada to do so would, in Mr. Schreiber’s submission, result in an abuse of process.

He further argues that the Rules cannot be used to override his constitutional right to due process, although he does acknowledge that this right is not absolute. [ 6 ] Mr. Schreiber argues, secondly, that under the functional approach, his inability to significantly advance the Action was due to his imprisonment and ill health. He argues that these factors excuse that portion of the delay and should result in that period being deducted from the delay calculation.

He submits that, because his imprisonment was caused or contributed to by the Minister’s decision to surrender him to Germany, it would be a miscarriage of justice not to deduct that time from the delay calculation. [ 7 ] Thirdly, Mr. Schreiber submits that Canada engaged in tactics during the course of litigation which had the effect of causing delay. He points in particular to the fact that he was held in Canada for five years during the ethics investigations before he was eventually extradited.

He notes that courts have refused to apply Rule 4.33 where a defendant has purposefully obstructed, stalled, or ambushed an action. He argues that equity requires this Court to consider whether Canada should benefit from its “incongruous” conduct. [ 8 ] Mr. Schreiber also submits that Rule 4.31 also does not apply, as the delay was not inordinate and Canada has suffered no prejudice.

Issues [ 9 ] Given the arguments raised and the evidence that is before the Court, the main issues that must be determined on this Appeal are: 1. whether Canada engaged in misconduct that would excuse Mr. Schreiber’s delay; 2. whether there are unresolved Charter claims; and 3. if so, whether such unresolved Charter claims constitute an excuse for the delay. Analysis 1. Did Canada engage in misconduct that would excuse Mr. Schreiber’s delay? [ 10 ] Rule 4.33(2) is mandatory.

The Court’s discretion may only be exercised in the “clearest of circumstances” ( Wilson v Aspen View Regional School, Division No 19 , 2014 ABQB 741 ). A person’s constitutional right to commence a claim or to access the courts is not absolute ( Humphreys v Trebilcock , 2017 ABCA 116 ). [ 11 ] While a defendant is not required to actively move a plaintiff’s action forward, it cannot purposefully obstruct, stall, or delay the action ( Janstar Homes Ltd v Elbow Valley West Ltd , 2016 ABCA 417 , citing Rule 1.2).

It would be unjust to allow a defendant to lull a plaintiff into believing a delay will not be objected to and then move to strike the action ( Alston v Haywood Securities Inc , 2020 ABQB 107 ). Silence, however, is not acquiescence ( Flock v Flock Estate , 2017 ABCA 67 ). [ 12 ] In Turek v Oliver , 2014 ABCA 327 , the Court of Appeal upheld a chambers judge’s decision to dismiss a Rule 4.33 application which had been brought by the defendants. Due to repeated delays by the defendants’ counsel, the plaintiff agreed to extend the time to file the affidavit of records.

The defendants missed the deadline and brought an application to strike. The Court of Appeal held that it was not unreasonable for plaintiff’s counsel to rely on the undertakings of defendants’ counsel that the action would be significantly advanced by a specific date.

It concluded that allowing the application to strike would encourage the “ambush” engaged in by the defendants’ counsel. [ 13 ] In Second Real Properties Ltd, as represented by Avison Young Tax Services v Calgary (City) , 2020 ABQB 629 , Second Real filed, in 2016, an application for leave to appeal and for judicial review of two municipal tax decisions. In 2017, its counsel asked the respondent’s counsel for available hearing dates. The respondent’s counsel replied that there were no available dates for a year. When Second Real asked for dates again in 2019, the respondent brought a Rule 4.33 application.

It took the position that there had been no significant advance since the filing and serving of the original application. Second Real argued that the City should not succeed on its application to strike because it did not have clean hands. The Master rejected the argument that equity applies to Rules-based relief. He also rejected the argument that there should be a retroactive suspension period imposed at the discretion of the Court.

He held that it had been open to Second Real to apply for a suspension under Rule 4.33(9) if it wanted to ensure its action would not “drop dead”. [ 14 ] In Laurier Charters Ltd v Eggleton , 2020 BCSC 262 , the plaintiffs brought an action against multiple defendants in 2010. The claim was responded to, but no steps were taken to move the litigation forward between 2011 and 2019. The plaintiff acknowledged that the delay was inordinate, but argued that it should, nonetheless, be excused because the individual plaintiff, Mr. Chambers, was imprisoned in the United States between 2002 and 2015.

He submitted that, during the term of his imprisonment, he had limited access to email and telephones and, when he returned to Canada in 2015, he did not have the financial or psychological means to pursue the claim. The Court found that Mr. Chambers’ period of incarceration did not excuse the delay, given that he clearly had the ability to instruct counsel during that time. The Court also found that there was no excuse for the plaintiffs not pursuing the action after Mr. Chambers’ return to Canada. Therefore, the action was dismissed. [ 15 ] In this case, Mr.

Schreiber has not pointed to any specific conduct on the part of Canada which could reasonably be categorized as intentionally obstructing, stalling, or delaying the prosecution of this Action. There were no unfulfilled promises made by counsel for Canada and no act of lulling Mr. Schreiber into thinking that Canada would not assert its right to strike the Action. [ 16 ] Mr.

Schreiber’s argument that he should be excused from the delay because of his incarceration (as it was made possible by Canada’s actions in connection with the ethics investigations and extradition proceedings) is not supported by the case law. Similar to the situation in Laurier Charters , there is evidence that Mr. Schreiber could have instructed counsel while he was incarcerated or under house arrest in Germany. During this time, Canada received documents and phone calls from his counsel.

Furthermore, it was open to him to request a standstill agreement or to apply for a suspension under Rule 4.33(9), but he did not do so. Similarly, it is clear in law (and Mr. Schreiber does not suggest otherwise), that his communications, through counsel, of his intention to pursue the Action were not sufficient to constitute an advance in the Action. Rather than communicating his intention, Mr.

Schreiber was required to take steps to significantly advance the action or to obtain a suspension or a standstill agreement. [ 17 ] This Court, in Second Real , rejected the application of “clean hands” and equitable principles to the Rules-based relief imposed under the “long delay” Rule.

While the principles of fundamental justice may estop a party from benefiting from intentional misconduct, courts have resisted using their discretion to suspend the Rules where there has been no intentional stalling, obstruction, or delay of the action. [ 18 ] While the ethics investigations and the extradition proceedings, and Mr. Schreiber’s subsequent incarceration and health issues, may have diverted his attention from pursuing this Action, there is no evidence that these governmental activities were undertaken for any purpose related to causing a delay in this Action.

I do not find that the Government’s action in facilitating a police

investigation, an ethics investigation, and an extradition proceeding initiated by another government can reasonably be construed as thetype of intentional misconduct that has been recognized as excusing a plaintiff’s delay in pursuing a lawsuit. 2. Are there unresolved Charter claims and, if so, do they constitute excuses for thedelay? [19] This Court dealt with the issue of unresolved constitutional questions in the context of a Rule 4.33 application in Callihoo vCanada (Attorney General), 2015 ABQB 337.

In that case, descendants of former Michel Indian Band No. 472 had commenced anaction against the same defendants as are defendants in the Action related to this Appeal. The action was summarily dismissed againstAlberta in 2006. Later that year, the plaintiffs amended the Statement of Claim to include a Notice of Constitutional Question. Canadafiled a Statement of Defence in 2008. An additional Notice of Constitutional Question was sent to Canada in 2013. In 2014, Canada filedan application to dismiss the action for long delay.

It submitted that there had been no significant advance in the litigation since 2008.The plaintiffs argued that allowing the Crown to succeed in dismissing the action would “eliminat[e] Treaty rights and foreclos[e]constitutional protection for the Plaintiffs”. The Court found that the 2013 Notice of Constitutional Question did not constitute asignificant advance in the litigation. It did not amend the pleadings but, rather, served a “housekeeping” function. The Court also foundthat Rule 4.33 was mandatory and was available as a procedural defence to the Crown, even in cases involving aboriginal and treatyclaims.

The action was dismissed. [20] Mr. Schreiber argues that his case is distinguishable from Callihoo, on the basis that the alleged Charter breaches occurredduring the course of the litigation, as opposed to being the subject of the initial litigation. No case law has been provided on this point,but I conclude that this distinction is either one that does not exist at law or is of no consequence in this particular case. [21] Several Canadian courts have repeatedly dealt with Mr. Schreiber’s Charter claims during the course of the variousproceedings referred to in these Reasons. Mr.

Schreiber takes the position that, although the Supreme Court ruled on his s 8 claim, thereremains outstanding ss 6, 7 and 12 Charter issues which must be resolved. However, I find that this position is not consistent with thelitigation history that I have outlined above. The Minister’s Surrender Order specifically considered arguments on ss 6 and 7 of theCharter, and misconduct allegations regarding the extradition arrest. The Order was upheld on judicial review by the Ontario Court ofAppeal, which specifically rejected Mr.

Schreiber’s argument that his surrender was unjust, oppressive, and contrary to s 7 of theCharter. The Court found no error in the Minister’s decision. The Ontario Court of Appeal subsequently held that the Minister properlyconsidered Mr. Schreiber’s s 7 rights in finding that his extradition would not offend Canadians’ sense of what was fair, right and just.The Supreme Court of Canada dismissed Mr. Schreiber’s application for leave to appeal that decision. [22] The Federal Court of Canada considered Mr.

Schreiber’s concerns related to alleged Charter breaches between January 1995and the judicial review application brought in 2007. It refused to grant the requested order or a declaration that Mr. Schreiber’s Charterrights had been breached, finding that these issues had already been dealt with by the Ontario Court of Appeal. The Federal Court’srefusal to hear Mr. Schreiber’s judicial review application was upheld by the Federal Court of Appeal. [23] Although Mr.

Schreiber has not previously specifically plead s 12 of the Charter, which protects individuals from cruel andunusual treatment or punishment, s 7 includes a related principle which prohibits grossly disproportionate limitations of the right to life,liberty and security of the person (Canada (Attorney General) v Bedford, 2013 SCC 72). [24] In R v Smith, (SCC), [1987] 1 SCR 1045 and R v Morrisey, 2000 SCC 39, the Supreme Court confirmed thats 12 is meant to prohibit treatment or punishment that would “outrage our society’s sense of decency” such that Canadians would find it“abhorrent or intolerable”.

The Ontario Court of Appeal found that Mr. Schreiber’s extradition did not offend Canadians’ sense of what isfair, right or just in the context of his s 7 argument. I find that the Ontario Court of Appeal’s conclusions have equal application to hisrecently raised s 12 argument and are determinative of that argument.

That is, I conclude that there are no unresolved Charter issues inthis case, the same having been extensively canvassed and dealt with by the Ontario Court of Appeal, the Federal Court, the FederalCourt of Appeal and the Supreme Court of Canada (either explicitly or by those Courts’ conclusion that they were res judicata or by theirrefusal to grant leave, as the case may be). [25] In light of this conclusion, it is not necessary to consider whether there are further excuses for the delay in advancing thisAction. However, had I found it necessary to do so, I would have concluded that Mr.

Schreiber has had ample opportunity to fullyadvance these claims in the more than 25 years since Canada commenced proceedings and Mr. Schreiber began raising Charter issues inchallenging those proceedings. It is also unnecessary to consider Mr. Schreiber’s application to amend his Statement of Claim. Had Ifound it necessary to do so, the same rationale, and conclusion, would apply. Conclusion [26] For the above Reasons, I conclude that the Master’s Decision to dismiss Mr. Schreiber’s Action on the basis of Rule 4.33 wascorrect.

Accordingly, the Appeal is dismissed. [27] The Defendants are entitled to their costs in connection with this Appeal. If the parties cannot agree on the amount of costspayable by Mr. Schreiber, they are to contact my Assistant within 30 days to advise of same so that arrangements can be made to addressthat matter. Heard on the 27th day of May, 2021. Dated at the City of Edmonton, Alberta this 26th day of August, 2021.

D.L. Shelley J.C.Q.B.A. Appearances: Robert Hladun Hladun & Company for the Plaintiff Kerry Boyd Department of Justice Canada for the Defendant