Court File No. 1392 

ONTARIO
SUPERIOR COURT OF JUSTICE

 

 

BETWEEN:
Q, SENATOR MICHAEL DENNIS DUFFY
:43. Plaintiff
.- - and
E. ZEE .
E31553 OF CANADA and THE ATTORNEY GENERAL OF
CANADA
Defendants
eri?) . vii 
\?Ei?bfh?i 
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 ?le it, with proof of service in this court of?ce, WITHIN
TWENTY DAYS after 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 ?ling your statement 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 ?ling a statement of defence, you may serve and ?le 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 ?le your statement of defence.

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 ?ve years after the action
was commenced unless otherwise ordered by the court.

DATE: AUG 21. 2017 
ISSUED BY:


Address of ourt Of?ce:
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
Of?ce of the Deputy Attorney General of Canada
284 Wellington Street
Ottawa, Ontario KIA 0H8

1.

I. CLAIM

The Plaintiff claims:





(C)





(D

General damages in the amount of

$6,500,000;

Loss of income and bene?ts in the
amount of $300,000 as
particularized in paragraph 132 plus

related bene?ts;

Special damages in an amount to be

determined before trial;

Punitive damages in the amount of

$1,000,000;

A declaration that the Plaintiff?s
rights under the Charter of Rights
and Freedoms have been violated; as

particularized in paragraphs 1 16-1 19

An award for damages under s. 24 of
the Charter of Rights and Freedoms;

to be particularized prior to trial.











A declaration that the Senate and/or
some of its members acted
unconstitutionally under the
Constitution Act, 1867, sections 18,
21-36, 91 (8), 128 and the Fifth
Schedule and the Parliament of

Canada Act;

A declaration that the Senate and/or
some of its members acted ultra
vires its legal powers in the

administrative law sense;

Pre and post judgment interest in
accordance with the Court of Justice
Act, RSO 1990, c. C. 43, as

amended;

Costs of this action, plus with all

applicable taxes; and

Such further and other relief as this

Honourable Court deems just.

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, I 86 7. 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 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 pursuant to the Crown Liability and Proceedings
Act, RSC 1985, c. The AGC is also liable for damages in respect of violation of
constitutionally protected rights by of?cers, agents and servants of the RCMP, pursuant to

s. 24 of the Canadian Charter of Rights and Freedoms (the ?Charter?).

 FACTS
Senator Duffy Background 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 Senator Duffy was to enjoy security of tenure until the age of 75.
The protection of a Senators independence, avoidance of ?nancial coercion and/or political

in?uence 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.

9. Senator Duffy launched a very successful and career in journalism,
specializing in political life in Canada. Against the odds, he persevered and ultimately

attained success in his chosen ?eld.

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 Duffy?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 con?rmed 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 quali?ed 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

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 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? Of?ce (the? 

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 con?rm 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

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 ?ne 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 in order to extract what they believed 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 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:

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.

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The mistake-repay ?ction 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 Forced Scenario.

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28. On February 14, 2013, the CIBA con?rmed that they had engaged Deloitte, an
audit, consulting, and ?nancial 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 speci?c mandate was to analyze Senator Duffy?s expenses in reference

to the Senate?s very own rules and practices. There were speci?cally asked to review:

Senator Duffy?s travel claims and

supporting documentation

Claims related to/from a primary
residence, assess and determine
whether this occurred or could have

occurred

Assess where the primary residence

is located for Senator Duffy, and
Categorize claims as either:
Appropriate in keeping with Senate practice,
(ii) Subject to reimbursement to the Receiver General, or

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.?

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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 

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 bene?t of Senator
Duffy but rather, for the bene?t of the government and the PMO. It was political damage

control at its ?nest.

13

36. Alter 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

?ction: Nigel Wright had agreed to pay the $90k Senator Duffy ?ctitiously owed.

37. The political interference continued. On March 1, 2013, Nigel Wright wrote to

Senator Stewart Olsen to advise he had seen the draft report and he asked for four

signi?cant changes to the report.

38. The PMO then began to exert its in?uence 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 request, Senator Gerstein
attempted to in?uence 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 am personally covering Duffy?s $90k.?

14

40. On March 21, 2013, the PMO reported on Senator Gerstein?s efforts. Senator
Gerstein?s attempt to in?uence 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 ?rm 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 Du?y 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:

Senators whose primary residence is
located more than 100 km from the
National Capital Region 

are entitled to reimbursement of

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travel expenses, and living expenses

while in the NCR for Senate

business;

The following terms are unde?ned
by applicable Senate guidelines and
regulations: primary residence,
secondary residence, NCR
residence, provincial residence,

registered residence.

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 was impossible to assess the status of Senator
Duffy?s primary residence against the rules and guidelines. Other than one small clerical

error, Deloitte could not ?nd 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 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:

The direct advice of Senator
Tkachuk, the vice-chair of the
authoritative Standing Committee

on Internal Economy;

The memorandum received by
Senate Leader LeBreton and

authored by Mr. McCreery advising

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that Senator Duffy could reside in

Ottawa 99% of the time;

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;

The wording of the

designation/declaration form; and

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

bene?t from the Senate.

58. This so called ?suspension? was in effect an expulsion 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, despite 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 in the absence of a hearing on the charge of
gross negligence, in de?ance 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 bene?t.

69. Only Senator Duffy was punished in the absence of procedural fairness, and then

only for purely political motives.

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70. Senator Duffy?s ?suspension? had no limits. Due to the Senate?s actions, Senator
- Duffy?s place in the Senatebecame vacant: not for a day, or a week, or even a month. The
vacancy was inde?nite 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 of?cer 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.

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76. On March 18, 2014, two RCMP of?cers 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 for Nigel 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.

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82. The RCMP further believed that although Mr. Wright was in?uential and held an
important position, Senator Duffy was a more high-pro?le 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. Du??x, Justice Charles Vaillancourt concluded that the facts related to the
$90k payment were explicitly outlined in the email traf?c 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 signi?cant 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.

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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 ?rm 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 in?uence 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: 

and 

[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.

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[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 ?asco 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 ?nding that Senator Duffy resisted against the Forced Scenario,
Justice Vaillancourt also found that Senator Duffy did not receive a true advantage or
bene?t. 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 bene?tted 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 ?ndings of Justice Vaillancourt they are ?nal.

Continued Prosecution by the Senate

93. On July 25, 2016, well after Judge Vaillancourt?s factual ?ndings 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 they asserted 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 inde?nite period of time.

99. Senator Duffy was then subjected to a criminal investigation and trial. The

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 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 signi?cant
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:





(C)



The Senate, through the CIBA,
initiated an investigation into

Senator Duffy?s expense claims;

The CIBA engaged a third-party
auditor to assist with the
investigation of Senator Duffy?s

claims on February 14, 2013;

The CIBA cleared Senator Duffy of
any administrative wrong doing
based on the Deloitte Report on May

9,2013;

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









The CIBA referred Senator Duffy?s
case to the RCMP for investigation

on May 29, 2013;

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;

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;

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







(1)

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
of?ce, and denial of living and travel

allowances;

Senator Duffy was charged by the
RCMP with 31 offences relating to

Senate expenses on July 17, 2014;

The suspension of Senator Duffy
ended upon the dissolution of

Parliament on August 2, 2015;

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 and the upcoming

criminal trial;

31





(0)

(P)

Senator Duffy was acquitted on all
charges by Judge Vaillancourt on

Apri121, 2016;

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;

On August 24, 2016, the CIBA
improperly rejected a request to
partially reimburse Senator Duffy
for legal expenses and
disbursements incurred in the
successful defence of the criminal
charges he faced despite the Senate?s

own policy for such reimbursement;

Senator Duffy sent a written request

to the Senate for reimbursement of



(ii)



(W)

32

his wrongfully withheld salary,
pension accrual and living
allowance during the period of
suspension. The Senate has failed to

respond to Senator Duffy;

The Senate lacked reasonable and/or
probable grounds to both commence
and continue the prosecution against

Senator Duffy considering that:

The Deloitte report concluded Senator Duffy had not violated any

Senate expense rules;

The Twenty-Second CIBA report cleared Senator Duffy of any

administrative malfeasance in his senate expense claims;

The Twenty-Sixth CIBA report dramatically reversed its position
on Senator Duffy?s claimed expenses based on no new evidence,
based on the political goals, and without affording Senator

Duffy fair notice and real and meaningful opportunity to comment;

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 

(V)

(vi)

(vii)

33

Judge Vaillancourt found that Senator Duffy had not violated any

Senate expense rules;

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;

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;

The Senate lacked the constitutional power to suspend a Senator?s

(iX)

(X)

(xi)

pay in the absence of a ?nal criminal conviction or wilful absence

from the Senate;

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;

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;

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;

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 af?liated 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.

3 5
Misfeasance in Public Of?ce

107. The Senate is liable for the misfeasance in public of?ce of its Senators as set out in

sub Paragraphs 104 (1), (0), and 

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 af?liated 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:

The Senate wrongfully withheld
Senator Duffy?s salary and related
bene?ts from November 2013 to
August 2015 and did not reimburse
the withheld salary or pension
accrual upon Senator Duffy?s

acquittal on all charges;

Senator Duffy has been deprived of
his constitutionally protected salary
and pension accrual, living and

travel expenses as well as suffering

36

(C)







the public shame of denial of access

to the Senate or even his own of?ce;

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;

Senator Duffy was deprived of
partial legal expense
indemni?cation during the above
noted investigation, prosecution, and

trial.

The Senate lacks the power to
withhold the Senator?s salary under

the circumstances;

The Senate lacks the power to set-off
administrative expenses from the
Senator?s salary under the

circumstances;

37





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

The Senate acted ultra vires and/ or
without legal basis in unjustly
enriching itself at the expense of
Senator Duffy. The ?ndings 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 inde?nitely without pay or

privileges.

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 Constitution Act, 186 7 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 bene?ts, 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 the Charter.

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 the Charter, 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

To? be presumed innocent until
proven guilty according to law in a
fair and public hearing by an

independent and impartial tribunal;

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

If ?nally acquitted of the offence,

not to be tried for it again.

all guaranteed by section 11 of the Charter, for which the Plaintiff claims damages

as a remedy pursuant to section 24 of the Charter.

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 speci?c 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:

It initiated criminal proceedings
against Senator Duffy on July 17,

2014;

It was negligent in its duty owed to
suspects of a crime and fell well
below the applicable standard of

care;

The charges were fully resolved in

favour of the Plaintiff on April 21,

41



2016 and factual ?ndings were made
that the plaintiff expense claims
and conduct were appropriate and
within the Senate administrative

rules; and

The Plaintiff suffered damages as a

result of the negligence.

124. The AGC was negligent on the following grounds:





(C)



It failed to conduct an appropriate
investigation prior to charging

Senator Duffy;

It lacked reasonable and probable

grounds to charge Senator Duffy;

It failed to obtain any evidence of
any criminal activity on the part of

Senator Duffy prior to his arrest;

It treated Senator Duffy as a
valuable target which produced an
investigation blinded by
tunnel-vision and 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;

It failed to provide Senator Duffy
with a real opportunity to provide his
side of the story prior to laying

charges;

It disregarded and improperly
ignored exculpatory expert
accounting/audit evidence,
exculpatory emails, and exculpatory
witness interviews prior to the

charging of Senator Duffy;

It failed in its duty to be full, frank
and fair in the Informations to

Obtain 

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

The AGC is vicariously liable for the
torts committed by the RCMP and

its Of?cers.

125. The negligent investigation by the RCMP caused Senator Duffy emotional,

physical, economic and reputational damage as a direct result of the 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:



It failed to ensure that the RCMP and
its Of?cers were properly trained
and/or that guidelines were provided
on proper police procedure
regarding probable grounds to

charge, and investigative techniques;

V. DAMAGES

claims damages for the following:

General Damages

44



(C)



Alternatively, if any such training
and/or guidelines were provided, as
outlined above, the RCMP and its
Of?cers, for whom it is responsible,
failed to ensure that the

training/guidelines were followed;

It failed to ensure proper supervision
of its employees in the execution of

their duties.

The negligence of the AGC caused Senator Duffy emotional, physical, economic

and reputational damage as a direct result of the negligence.

As such, the Plaintiff claims damages for negligence.

As a result of the joint and/or several actions of the Defendants, Senator Duffy

Pain, suffering and loss of
enjoyment of life, including the loss

of friendships and trust. Senator

45

Duffy has suffered from and
continues to 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;

Extreme damage to his reputation
nation-wide including, continual

mocking and satire in the media;
(0) Mental distress, including,
Severe anxiety; and
(ii) Depression.
Physical distress, including

Aggravation to his heart condition including the need for a second

open-heart surgery;
(ii) Insomnia and nightmares;

Exacerbation of his diabetes condition including diabetic

retinopathy; and

(iv) Headaches.

46

Senator Duffy?s pre?existing heart
condition was greatly exacerbated
due to the actions of the Defendants.
His heart condition deteriorated
signi?cantly as a result, requiring
extensive and signi?cant surgery;

and

(1) 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 signi?cant
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:

Loss of salary from Nov. 5, 2013 to

Aug. 2, 2015;

Loss of living allowance from Nov.

5,2013 to April 22, 2016;

(0) Loss of pension accrual from

November 5, 2013 to April 22, 2016.

Partial loss of salary from July 25,

2016 onward.

133. The Plaintiff, who had been a frequently requested and high?pro?le speaker at
events, lost all ?iture 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 con?dence in the 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 of?cers 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:

Courts of Justice Act, R.S.O. 1990,

c. 43, as amended;

Proceedings Against the Crown Act,

R.S.O, 1990, c. P. 27; as amended;

Negligence Act, and R.S.O. 1990, 0

NJ, as amended;

Parliament of Canada Act;

49

(6) Constitution Act, 1 86 7; and

Canadian Charter of Rights and

Freedoms.

139. The Plaintiff proposes that this action be heard in the City of Ottawa, Canada.

 

August 24, 2017 GREENSPON, BROWN ASSOCIATES
331 Somerset Street West
Ottawa ON 0] 8

Lawrence Greenspon

Tina Hill

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 OJ 8

Lawrence Greenspan 20301D)

lawrencc@greensponbrown.ca

Tina Hill 46325.1)
Tina@greensponbrown.ca

Counsel to the Plaintiff