1. Quotes From Prothonotary’s Dismissal
2. Previous Links
NOTE: This is an unedited version of the written submission.
There is further editing and changes being made.
PART I. ISSUES
(1) Did Prothonotary Milczynski make overriding palpable error saying the Plaintiff’s claim was based on personal opinions, without material facts?
(2) Did Prothonotary Milczynski make an error of law in finding there is no public or private standing in the matter?
(3) Did Prothonotary Milczynski make an error of law by not taking facts alleged as proven, at least in the preliminary stages?
(4) Did Prothonotary Milczynski make an error of law by overreaching, and striking out a Statement of Claim in a matter that is complex and involves in depth analysis of law? Prothonotaries are not Judges or Justices.
(5) Did Prothonotary Milczynski make an error of law by not allowing for amendments?
(6) Did Prothonotary Milczynski make an error of law by not considering arguments of: unjust enrichment, unconscionability, negligence, or constitutional issues prior to striking?
(7) Did Prothonotary Milczynski make an error of law by allowing procedural rules to unjustly hinder a self represented litigant?
(8) Housen v. Nikolaisen (2002) is the accepted standard for review. It outlines the standard for both factual errors, errors of law, and mixed law and fact errors. Hospira Healthcare Corp v. Kennedy Institute of Rheumatology (2017) clarified that Prothonotary orders being reviewed should subjected to the same standard, as they are basically the same thing.
(9) The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error”. A palpable error is one that is plainly seen. …. The standard of review on pure questions of law is one of correctness, and an appellate court is thus free to replace the opinion of the trial judge with its own. Appellate courts require a broad scope of review with respect to matters of law because their primary role is to delineate and refine legal rules and ensure their universal application…. Questions of mixed fact and law involve the application of a legal standard to a set of facts.
PART II. FACTS
(10) In December 2002, Canada and the United States signed the “Safe Third Country Agreement” (the S3CA). This was in effect an agreement to prevent “asylum shopping” by forcing alleging to be refugees to apply for asylum in the first country they arrive in.
(11) In December 2004, the Safe Third Country Agreement (S3CA) legally took effect between Canada and the United States. This is not disputed by the other side.
(12) However, due to a “loophole” in the agreement, the rules apparently do not apply if a “refugee” simply bypasses official border ports of entry. In other words, enter Canada from the U.S. at any place other than an official port, then different rules apply. The result has been fake refugees entering from the U.S. and attempting to claim asylum.
(13) Instead of turning people away attempting to enter Canada from the United States, this loophole has made it easier for people to enter the country and submit asylum applications here. This completely defeats the purpose of having the agreement in the first place.
(14) The United States considers many thousands of asylum applications every year (see Exhibit A). It is because of this, and because of how legitimate asylees are treated, Canada as made this Safe Third Country Agreement in the first place.
(15) The claim that the Plaintiff’s assertions are just personal opinions is false. The ruling by Prothonotary Milczynski of that is complete nonsense. Here are some examples.
(16) The CBC, Canadian Broadcasting Corporation, has reported (see Exhibit B) that at least 50,000 people have entered Canada in just the last 2 years, coming from all countries.
Close to 50,000 have come into Canada in just two years at Roxham Road, stepping across the border at the unauthorized crossing.
(17) But perhaps CBC is just faking the article. Perhaps all of this really the Plaintiff’s opinion (sarcasm). But moving on, the United Nations has published freely available articles on Roxham Road in Quebec. One such article (see Exhibit C) reads that at least 20,000 people have entered Canada illegally just in the Summer of 2017:
(18) The United Nations, in this article, estimates that at least 20,000 people crossed into Canada illegally in just the Summer of 2017 at Roxham Road in Quebec. This is the United Nations’ own estimate. Not my imagination or opinion, as Prothonotary Milczynski has stated. Moving on, the Toronto Star has also written about the problem (Exhibit D) and writes that people are entering from Roxham Road every day in Canada.
(19) The Toronto Star not only details the illegals (fake refugees) crossing into Canada from the US, but documents a family who was coming to Canada simply because they feared deportation because they were living in the U.S. illegally.
(20) Next, Global News covered Toronto Mayor John Tory on the topic of border jumpers, (see Exhibit E). He has said that homeless shelter beds are being filled up with illegals, and it has cost at least $64.5 million:
(21) CTV news has also written about the cost of these fake refugees. Here (Exhibit F) is one of their submissions:
(22) Both the Conservative Party of Canada and the People’s Party of Canada have made pledges to close the loophole in the Safe Third Country Agreement (Exhibits G and H). This is to prevent more illegal crossings. But perhaps it is their opinions as well that this is happening.
(23) Prothonotary Milczynski’s ruled that the Plaintiff is stating personal opinions and personal beliefs. For this conclusion to be true, all of the following entities would have to be lying:
(a) The Canadian Broadcasting Corporation (CBC)
(b) Global News
(c) CTV News
(d) Toronto Star
(e) City of Toronto
(f) Toronto Mayor John Tory
(g) Conservative Party of Canada, and its members
(h) People’s Party of Canada, and its members
(24) Of course, this is only a small sample of the media, print, photographic and video evidence available about the illegal border crossings going on, particularly at Roxham Road, QC. Even the simplest of online searches would have found a wealth of information corroborating what the Plaintiff alleges.
(25) Also, part of Prothonotary Milczynski’s ruling is confusing. She states (accurately) that I have concerns about illegal immigration and fake refugees gaming the system. That part is true. But then she goes on to state that these are bare assertions. Does she think the Plaintiff is making up the entire thing?
PART III. LAWS ON THE SUBJECT
(26) Housen v. Nikolaisen (2002) is the accepted standard for review. It outlines the standard for both factual errors, errors of law, and mixed law and fact errors. Hospira Healthcare Corp v. Kennedy Institute of Rheumatology (2017) clarified that Prothonotary orders being reviewed should subjected to the same standard, as they are basically the same thing.
Housen v. Nikolaisen,  2 SCR 235, 2002 SCC 33 (CanLII)
(28) Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology,  1 FCR 331, 2016 FCA 215 (CanLII)
(29) In this case, Prothnotary Milczynski made both errors of fact, and errors of law.
(30) First, the errors of fact. The biggest one is the stating that the Plaintiff is making bald assertions, is being argumentative, and is stating personal opinions. This is completely wrong.
(31) People are coming into Canada illegally, that has been thoroughly documented. The fact that it happens, and estimates about the scale and costs are all public knowledge. Yet Prothonotary shrugs this off as “opinion”.
(32) The Statement of Claim (as I understand it) is not supposed to include evidence. That is to come later. Moreover, when responding to the motion to strike (via Rule 221) evidence is not supposed to be submitted, so that was not an option. How is a Plaintiff supposed to prove these facts when the Statement is struck out prior to it being allowed in? It was offered to do, if the Claim were allowed to be amended, but that didn’t happen.
(33) Prothnotary Milczynski’s ruling that facts were just “personal opinions” was a palpable error. It was an overriding one, causing the case to be thrown out prematurely.
(34) The Government of Canada cited (Downtown Eastside Sex Workers United v. Attorney General of Canada, 2010), arguing that a personal, private stake in the matter must be shown. Okay.
(35) From a purely financial point of view, the Plaintiff does not want to see her tax dollars being spent on people who have no right to be in the country in the first place. This includes people circumventing the law by going around official border crossings. While this seems superficial and cold, it is an improper use of taxpayer money. It was shown in earlier exhibits that social services “are” being accessed.
(36) Moving beyond that, letting people into the country who are unscreened is a danger to the Plaintiff’s well being. True, not everyone is violent, however the Plaintiff has an expectation that the Government will take reasonable steps to ensure the identities and security risks of people entering the country. Simply entering the country from the “warzone” of the United States claiming to be a refugee does not ensure her safety. Moreover, it is unclear what, if any, medical screening these people have undergone prior to coming to Canada. Again, they just show up and claim to be fleeing persecution.
(37) Also, allowing fake refugees to enter from the United States cheapens the Plaintiff’s citizenship. Being Canadian is supposed to come with privileges and rights that are unique to Canadians. Simply allowing anyone into Canada from the U.S. who “identifies” as a refugee undermines the process, and weakens what it means to be Canadian.
(38) Previous Counsel, Aman Owais, made the extremely false and disingenuous argument that because the Plaintiff is not a refugee she has no right to intervene, as her rights are not at stake. This was an intentional straw-man argument. It was never about getting the Plaintiff into Canada as a refugee, but about protecting her (and Canada as a whole) from abuse of the refugee process.
(39) Regarding a public standing (Downtown Eastside Sex Workers United v. Attorney General of Canada, 2010), has issued a 3 point test to determine standing:
(a) the existence of a serious justiciable issue;
(b) whether the Plaintiff has a real or genuine interest in the matter;
(c) whether the proceeding is an effective means of bringing it to the court
(40) First point, yes there is a serious, justiciable issue. Maintaining an actual border with the power to exclude people is important. Prothonotary Milczynski has stated that it is not a sufficient issue to bring to court. Wrong. As stated in the earlier submissions, we have borders for a reason, and it is to protect the citizens from outsiders. This is not xenophobic, but simple reality. How can the Government offer its citizens any level of safety and security if it cannot control who comes into the country? Only the most obtuse or contrarian person would argue that there is not serious issue about having borders that exclude people without a right to be in the country.
(41) Far from being the work of a “busybody”, asking the Court to enforce existing laws is vital to the well being of the nation. Indeed, being able to secure its perimeter is arguably the most important function a Government should have. Instead, it is fighting efforts to compel it to do so.
(42) Second point, yes, the Plaintiff has a genuine interest in the matter. She is concerned over the problem of illegal immigration into Canada, which is largely at — but not exclusive to — Roxham Road. She in concerned about the money being spent on this (both her and others), the security risk that large numbers of illegals pose, and the cheapening of the Canadian citizenship. It is nonsense to suggest that bringing this matter to the court — at her own time and expense — isn’t a real interest. Protecting your nation’s borders isn’t “busybody” work, it’s what any true patriot should see as important.
(43) Third point, is this an effective means of bringing it to the Court? Yes. What is being asked of the Court is to order the Government of Canada to enforce existing laws and to stop illegal immigration into this country. This case only covers ILLEGAL immigration, which as should be obvious, is illegal. Courts get asked to enforce laws, or order enforcement every day. The only difference here is the scale of the enforcement that is being asked of it. And if not the Court, then who exactly is to remedy a problem when the Government itself won’t act?
(44) Rules 17 and 25 of the Federal Courts Act give the Plaintiff the ability to file here. The Federal Court does have jurisdiction
(45) Think about how ridiculous this matter is: the Government of Canada has to be taken to court to enforce its own laws regarding border security. The Court is being asked to force the Government to enforce its own laws. The Judiciary has long been recognized as a “check and balance” against the Legislative and Executive Branches of Government.
(46) Prothonotary Milczynski made an error of law when ruling that the Plaintiff had no standing, wither publicly or in private to bring the case. She seems to view it as an opinion that nations need borders.
Unjust Enrichment, Unconscionability
(47) The Plaintiff also raised the issue of unjust enrichment. If you accept the fact that fake refugees are coming into Canada and receiving social benefits (as was demonstrated in the “facts” section), then how is this not unjust enrichment? How is taking something that one is not entitled to anything but unjust? Courts have the power to prevent this sort of thing from happening, and typically they do.
(48) Beyond unjust enrichment, consider the doctrine on unconscionability. If the Safe Third Country Agreement is to be worded — as the Government suggested before — that putting this loophole was intentional, does that not violate good public policy? Should agreements that act against public interest not be amended or voided as appropriate. If that was the case (and it appears to be just another excuse) then the agreement was invalid to begin with.
(49) Prothonotary Milczynski made an error of law when not appropriately considering the argument of unjust enrichment, or unconscionability
(50) Prothonotary Milczynski also erred in law when striking out a matter that is not simple, or established law. It is well established that this is not appropriate
(51) In Hanson v. Bank of Nova Scotia, the Ontario Court of Appeals reversed an order to strike out a Statement of Claim, stating that:
(52) Although this case was an Ontario one, the same principle can be applied to Federal cases as well. Even if there are deficiencies in the Statement of Claim, they can usually be cured by filing an “amended” Statement of Claim. That must always be considered when asked to strike out. This is settled by a great many cases.
(53) In the COMER case, it was argued, that:
(56) This reasoning absolutely applies here.
(a) No previous ruling, on point, was ever argued by the Defense. They never attempted to claim that this has been settled.
(b) To reiterate, claims made by a Plaintiff must be taken as proven, at least initially.
(c) New cases do result in laws changing over time, and the Courts accept that principle.
(d) Claims cannot be struck simply because they are difficult to prove.
(e) Claims cannot be struck simply because they are novel.
(57) The Federal Court has the powers (under 47(1) and 53(1) and (2) of Federal Courts Rules), to ask with a wide degree of discretion and to make orders it views as just. If there were errors or confusion in the original Statement of Claim, it would have been better corrected by allowing an Amended Statement of Claim. Prothonotary Milczynski erred in not at least allowing the option. Certainly whether the Federal Government can be ordered to enforce its own laws regarding border security is an issue worthy of the Court’s attention.
(58) Striking out a claim in such an important and complex matter should be above the ability of a Prothonotary, and it is.
(59) Also worth noting is that failing to secure the border could be viewed as negligence by the Court. Negligence, broadly speaking, is a 3 part test:
(a) A duty of care is owed
(b) That duty of care is breached
(c) Harm results from breaching the duty of care
(60) I would argue that the Government does owe a duty of care to the Canadian public. Securing the Federal borders and excluding people not legally allowed to enter is the essence of that duty. By allowing illegals into the country, the Government is breaching that duty of care. Yes, harm is resulting. This comes from taxes being used to support illegals, reduced security of the people, and the general cheapening of the Canadian citizenship.
(61) The Plaintiff submits that allowing people to enter Canada illegally, and at taxpayer expense, violates the POGG Doctrine. Morally, the citizens of Canada have as much of a right to safety as does any genuine refugee, and that letting in large numbers of “undocumented migrants” puts their safety at risk. Also, if the intent is to provide safety for those fleeing persecution, making it easy for individuals who may be after them (gang members, abusive husbands, w/e) to follow them into our country is doing no one any favours. We can’t provide safety to people fleeing persecution if anyone can enter as well
(62) We have no business in taking in so many people when we already have a housing shortage on our hands. crowding our homeless citizens out of the shelters by filling them with border crossers is morally reprehensible, particularly in light of our harsh winter climate. to do so is to argue that any one “refugee” from the other side of the planet is more worthy of shelter than a given, homeless Canadian; and given the disproportionately high rates of indigenous men and women among the homeless population, this ought not to be a perception for the government to continue to reinforce
(63) Yes, there are some generalizations in the above paragraphs, but we have obligations: both to Canadians, and to legitimate refugees. Simply letting people bypass border controls is not a good way to govern a country.
(64) Since the Supreme Court ruling of Pintea v. Johns, (which endorsed the statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council), it has been practice for courts to go the extra mile to ensure that procedurals rules are not used to unjustly hinder. The ruling also allows for Court officials to explain rules and options to self-represented persons.
(65) Opportunities to amend a claim, or make changes as the Court requires, are granted all the time to lawyers. A self-rep should be given no less consideration. If anything, Courts should be inclined to cut them a break.
(66) This is not an attempt to have the Court “make my case”. Rather, it is to ensure the issues originally raised (illegal immigration) actually have their day in Court. Since our Federal Government seems to have little interest in enforcing our borders, it’s time for another opinion.
(67) Prothonotary Milczynski made overriding, palpable error in ruling the facts alleged by the Plaintiff were bare assertions, and personal opinions. No opportunity to introduce evidence had been available up to that point.
(68) Prothonotary Milczynski further made several errors of law including:
(a) wrongly applying the standard of public and private standing. It assumes that there is no public or private interest by the Plaintiff in stopping illegal immigration, and hence ruled on the entire case. An overreach.
(b) Striking out the Statement of Claim when facts alleged by the Plaintiff were supposed to be taken as proven, at least in preliminary stages. This is well settled case law.
(c) Striking out the Statement of Claim in a matter that is complex and complicated. That is a serious overreach for a Prothonotary. They are not judges, and not supposed to behave as such. Again, settled case law.
(d) Not allowing the Plaintiff an attempt to prove the facts alleged in the Statement of Claim, or allowing an amended Statement to be filed. Again, facts alleged are supposed to be taken as true in early stages.
(e) Not at least considering the claims of: unjust enrichment, unconscionability, negligence or any constitutional question. However, she ruled everything to be opinion anyway.
(f) Not giving any consideration to a self-represented litigant, consistent with the Pintea v. Johns principles.
PART IV: AUTHORITIES
 Committee for Monetary and Economic Reform v. Canada, 2014 FC 380 (CanLII)
 Hanson v. Bank of Nova Scotia, 1994 CanLII 573 (ON CA)
 Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology,  1 FCR 331, 2016 FCA 215 (CanLII)
 Housen v. Nikolaisen,  2 SCR 235, 2002 SCC 33 (CanLII)
 Pintea v. Johns,  1 SCR 470, 2017 SCC 23 (CanLII)