Court File No.

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

SENATOR MICHAEL DENNIS DUFFY

Plaintiff

and

THE SENATE OF CANADA and THE ATTORNEY GENERAL OF

CANADA
Defendants

STATEMENT OF CLAIM

TO THE DEFENDANTS

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the

plaintiff. The claim made against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting

for you must prepare a statement of defence in Form 18A prescribed by the Rules of Civil
Procedure, serve it on the plaintiffs lawyer or, where the plaintiff does not have a lawyer,
serve it on the plaintiff, and file it, with proof of service in this court office, WITHIN
TWENTY 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 filing 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 filing a statement of defence, you may serve and file a notice of
intent to defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle
you to ten more days within which to serve and file your statement of defence.
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IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN

AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO
YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO
PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY
CONTACTING A LOCAL LEGAL AID OFFICE.

TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it

has not been set down for trial or terminated by any means within five years after the action
was commenced unless otherwise ordered by the court.

DATE:
ISSUED BY:____________________

Address of Court Office:

161 Elgin Street
Ottawa, ON K2P 2K1

TO: The Senate of Canada

Michel Patrice, Law Clerk and Parliamentary Counsel
1310-40 Elgin St.
Ottawa, ON K1A 0A4
Tel: 613-992-2426
Fax: 613-992-2125

TO: Ministry of the Attorney General of Canada

Deputy Attorney General
Office of the Deputy Attorney General of Canada
284 Wellington Street
Ottawa, Ontario K1A 0H8
 3

I. CLAIM

1. The Plaintiff claims:

(a) General damages in the amount of

$6,500,000;

(b) Loss of income and benefits in the

amount of $300,000 as

particularized in paragraph 132 plus

related benefits;

(c) Special damages in an amount to be

determined before trial;

(d) Punitive damages in the amount of

$1,000,000;

(e) A declaration that the Plaintiffs

rights under the Charter of Rights

and Freedoms have been violated; as

particularized in paragraphs 116-119

(f) An award for damages under s. 24 of

the Charter of Rights and Freedoms;

to be particularized prior to trial.

4

(g) A declaration that the Senate and/or

some of its members acted

unconstitutionally under the

Constitution Act, 1867, sections 18,

21-36, 91 (8), 128 and the Fifth

Schedule and the Parliament of

Canada Act;

(g)(h) A declaration that the Senate and/or

some of its members acted ultra

vires its legal powers in the

administrative law sense;

(h)(i) Pre and post judgment interest in

accordance with the Court of Justice

Act, RSO 1990, c. C. 43, as

amended;

(i)(j) Costs of this action, plus with all

applicable taxes; and

(j)(k) Such further and other relief as this

Honourable Court deems just.

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II. PARTIES

2. The Plaintiff, Senator Michael Dennis Duffy (Senator Duffy), was appointed to

the Senate of Canada on January 26, 2009, representing the province of Prince Edward

Island. At all material times he was a member of the Senate of Canada (the Senate).

3. The Defendant, the Senate, is the upper house of the Parliament of Canada. The

Senate consists of 105 senators appointed by the Governor General. The Senate was

established pursuant to the Constitution Act, 1867. The Senate is responsible in law for its

actions and/ or decisions as well it is vicariously liable for the actions and/ or decisions of

its members and committees, and sub committees whether those actions and/ or decisions

are made within or outside the exercise of their statutory authority.

4. The Defendant, the Attorney General of Canada (AGC), is named in place of the

Her Majesty the Queen in Right of Canada (the Crown) who is the sovereign of Canada

and is liable for damages in respect of torts committed by servants of the Crown, pursuant

to the Crown Liability and Proceedings Act, RSC 1985, c. C-50. The Crown is also liable

for damage in respect of unconstitutional acts of omissions of servants of the Crown,

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

5. The AGC is liable for the damages in respect of torts committed by the Royal

Canadian Mounted Police (the RCMP) pursuant to the Crown Liability and Proceedings

Act, RSC 1985, c. C-50. The AGC is also liable for damages in respect of violation of

constitutionally protected rights by officers, agents and servants of the RCMP, pursuant to

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

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III. FACTS

Senator Duffys 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 (PEI). Senator Duffy was to enjoy security of tenure until the age of 75.

The protection of a Senators independence, avoidance of financial coercion and/or political

influence are all reasons for the security of tenure.

7. Section 23 of the Constitution Act, 1867, sets out the conditions by which an

individual may qualify to be a senator. For senators of every province, except for Quebec,

they must be at least 30 years old, be a citizen, own property in the province of appointment

and have a worth of over $4000 above debts and liabilities. Such an individual shall be

resident in the Province for which the appointment is made.

8. Senator Duffy was born on May 27, 1946 in PEI. His family has long and deep

family roots in the province. He can trace his PEI family roots back to 1844. His

grandparents were born there, his parents were born there, his siblings were born there. He

was raised and schooled in PEI. Like so many born and bred Maritimers, as a youth,

Senator Duffy left his home in search of a career. In 1971 he relocated to Ottawa, Ontario

to pursue journalism opportunities. Even when he left PEI in search of a career in

journalism, his family and roots remained in PEI. He returned to the province constantly to

visit family.
 7

9. Senator Duffy launched a very successful and lengthy career in journalism,

specializing in political life in Canada. Against the odds, he persevered and ultimately

attained success in his chosen field.

10. From 1971 until his 2009 appointment to the Senate, Senator Duffy worked in

Ottawa as a radio and TV journalist. Due to his employment, Senator Duffy lived in

Ottawa.

11. In 1998, while still working in Ottawa, Senator Duffy and his wife purchased their

intended permanent residence at 10 Friendly Lane, Cavendish Beach, PEI. They did not

intend to permanently reside in Ottawa once Senator Duffys retired from his journalism

career.

12. Senator Duffys life as a journalist ended with his 2009 appointment as Senator for

the Province of PEI.

The PMO, the Senate and the Forced Scenario

13. When told of his appointment, Senator Duffy actively made inquiries and was

initially informed by the Prime Minister, and confirmed by memo of Christopher

McCreery, constitutional advisor to the Senate leader Marjore LeBreton that once he

declared PEI his province of residence and owned land in PEI, then, upon his appointment,

he would be qualified to represent PEI in the Senate. Indeed, he was told that he could sit as

a Senator from PEI, even if he lived in Ottawa 99% of the time.

14. All senators appointed to represent jurisdictions outside of Ontario, or Ontario

senators whose main residence was at least 100km away from Ottawa, were expected to
 8

maintain a residence in the National Capital Region. While Senator Duffys residence in

PEI remained his residence in the province for which he was appointed, his home in

Kanata, Ontario, became his residence while attending to his duties at the Senate.

15. As a result of his appointment, Senator Duffy was able to claim per diem expenses

related to residing away from his PEI residence. Senator Duffy was advised by Senator

Tkachuk, then Vice-Chair of the Senate standing committee on Internal Economy, Budgets

and Administration (the CIBA) Committee, that he should claim per diem expenses as

other PEI senators do, given that PEI was where his provincial residence was.

16. In late 2012, the media began publishing articles about Senate expense claims. This

ignited a slow-burning political storm which eventually became a major political issue for

the government and the powerful Prime Ministers Office (the PMO).

17. Nigel Wright, at the time the Prime Ministers Chief of Staff, spearheaded the PMO

response to the expense issue.

18. On November 22, 2012, the CIBA created the Subcommittee on Living

Allowances (the Subcommittee) to review expense claims for reimbursement of

expenses related to residences in the National Capital Region.

19. Senator Duffy actively sought advice from the top authorities to confirm that his

actions were within the rules. Throughout December 2012 and January 2013 both Nigel

Wright and, Senator Tkachuk, stated that Senator Duffys expense claims were entirely

within the rules and that there was no reason for him not to claim housing allowance for his
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Ottawa home. He was, however, urged not to speak out against the media stories in the

hope the story would fade away.

20. As of January 2013, the PMO and the Senate leadership were all fine with Senator

Duffys 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 PMOs Issues

Manager Chris Woodcock, the Leader of the Government in the Senate, Senator LeBreton,

and the Chair of CIBA, Senator Tkachuk, and the majority of the Steering committee of

CIBA

24. A two-pronged strategy was hatched over the course of that day:

(a) Temporarily buy time. This would

allow the various parties to appear to

do something so that there would be

no allegations of a cover up. This

included making sure that Senator

Duffy did not speak to the press.

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(b) The mistake-repay fiction would be

the operational strategy. This would

solve the problem of the living

expenses received, even though

those expenses were already known

to have been validly claimed. The

political strategy involved deliberate

deceit over honesty and truth. It

required Senator Duffy to admit to

mistakes he did not make, to repay

amounts validly claimed, and to

apologize.

25. The intended purpose of the Forced Scenario was to end the public agony of this

story remaining in the media cycle. The PMO response was a calculated effort to politically

limit any further bleeding damage to the government and, in particular, Prime Minister

Harper.

26. Right from the start, Senator Duffy resisted the Forced Scenario, on the principled

basis that he had done nothing wrong.

27. Senator Duffy retained lawyer Janice Payne to advise him as a result of the pressure

from Nigel Wright and pursuant to the PMOs Forced Scenario.

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28. On February 14, 2013, the CIBA confirmed that they had engaged Deloitte, an

audit, consulting, and financial advisory company, to conduct an independent examination

of Senator Duffys expense and living claims from April 1, 2011 to Sept 30, 2012.

29. Deloittes specific mandate was to analyze Senator Duffys expenses in reference

to the Senates very own rules and practices. There were specifically asked to review:

(a) Senator Duffys travel claims and

supporting documentation

(b) Claims related to/from a primary

residence, assess and determine

whether this occurred or could have

occurred

(c) Assess where the primary residence

is located for Senator Duffy, and

(d) Categorize claims as either:

(i) Appropriate in keeping with Senate practice,

(ii) Subject to reimbursement to the Receiver General, or

(iii) Subject to interpretation and determination by the Standing

Committee.

30. Despite the Deloitte audit, the behind the scenes scheming of the PMO continued as

it tried to end what it described as Chinese water torture.

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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 didnt 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 Duffys lawyer, Nigel Wright and members of the PMO. The PMO scripted press

releases on behalf of Senator Duffy. Senator Duffy continued to maintain his innocence

and express his resistance to stating that his expenses were wrongly claimed. He refused to

admit any wrong doing.

34. On February 27, 2013, the PMO became aware that the Senate was looking for a

back payment of approximately $90,000 from Senator Duffy (the $90k).

35. Justice Vaillancourt later found that Senator Duffy was kicking and screaming to

have the issues dealt with in an appropriate forum. However, as a result of the coordinated

and threatening efforts of the PMO, his free will was overwhelmed and he capitulated.

Justice Vaillancourt ruled that the entire Forced Scenario was not for the benefit of Senator

Duffy but rather, for the benefit of the government and the PMO. It was political damage

control at its finest.

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36. After being threatened, cajoled, arm-twisted and rebuked, Senator Duffy

capitulated to the Forced Scenario. He was extorted into agreeing to release a statement

that he had claimed amounts in error and that he would pay the amounts back, a statement

that would deceive the Canadian public and the Tory base. Even the repayment was a

fiction: Nigel Wright had agreed to pay the $90k Senator Duffy fictitiously owed.

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

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

significant changes to the report.

38. The PMO then began to exert its influence to get Deloitte to abandon its audit of

Senator Duffy. On March 1, 2013, Nigel Wright wrote to Benjamin Perrin and members of

the PMO with regard to the Deloitte examination. At the PMOs request, Senator Gerstein

attempted to influence the Deloitte audit through back-room channels. He was asked to

work through senior contacts at Deloitte to have them report that if Senator Duffys

primary residence is in Ottawa, then he would owe approximately $90,000, but that since

Senator Duffy has committed to repaying this amount, then Deloittes 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 Duffys expenses.

Mr. Wright stated that the Party will not be paying Senator Duffys expenses. He then

added I am personally covering Duffys $90k.

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40. On March 21, 2013, the PMO reported on Senator Gersteins efforts. Senator

Gersteins attempt to influence the Deloitte investigation failed. Senator Gerstein advised

that he had information from Deloitte that Deloitte would not change its opinion based on

any repayment by Senator Duffy because they were asked to provide their opinion on

residency. The decision was made that Senator Duffy should not engage with Deloitte.

Nigel Wright agreed with this strategy.

41. On March 25, 2013, Nigel Wright delivered a cheque for $90k to Janice Paynes

law firm pursuant to the Forced Scenario.

42. On that same day, Nigel Wright wrote to the members of the PMO and stated that

he could say that the facts as they know them do not warrant a referral of the matter to the

RCMP.

43. On April 22, 2013, Senator Duffy wrote to Deloitte to answer some of their

questions. Nigel Wright was against Senator Duffy communicating in any way with

Deloitte and communicated that to members of CIBA. As a result, on April 24, 2013, the

CIBA told Senator Duffy that he could not meet with Deloitte.

44. On May 9, 2013, the Deloitte report on Senator Duffys expense claims was

released. The report stated that:

(a) Senators whose primary residence is

located more than 100 km from the

National Capital Region (NCR),

are entitled to reimbursement of

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travel expenses, and living expenses

while in the NCR for Senate

business;

(b) The following terms are undefined

by applicable Senate guidelines and

regulations: primary residence,

secondary residence, NCR

residence, provincial residence,

registered residence.

(c) The applicable Senate regulations

and guidelines did not include

criteria to enable Deloitte to

determine Senator Duffys primary

residence, nor to assess the status of

Senator Duffys 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

Duffys primary residence against the rules and guidelines. Other than one small clerical

error, Deloitte could not find that any of Sen. Duffys 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 Duffys 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

Duffys living expenses and living allowance should not have been claimed. In addition,
 17

the CIBA referred to Senators Duffys 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 CIBAs opinion. The same Deloitte report was used to justify two radically different

determinations: that Senator Duffys expenses were validly claimed versus that Senator

Duffys expenses were wrongly claimed and his actions should be referred to the RCMP

for investigation.

54. Justice Vaillancourt, in R. v. Duffy, [2016] OJ No. 2033 would later review these

same expenses. He concluded that when Senator Duffy designated his primary residence as

PEI and made living expense claims for his NCR residence he committed no prohibited

act, violated no Senate rules and did not in all circumstances commit the actus reus of

fraud.

55. Justice Vaillancourt also found that when Senator Duffy made his primary

residence designation and his living expense claims he did so based on:

(a) The direct advice of Senator

Tkachuk, the vice-chair of the

authoritative Standing Committee

on Internal Economy;

(b) The memorandum received by

Senate Leader LeBreton and

authored by Mr. McCreery advising

 18

that Senator Duffy could reside in

Ottawa 99% of the time;

(c) The statements of the Prime Minister

of Canada that the effect of Senator

Duffy appointment to represent PEI

changed the status of his PEI

residence;

(d) The wording of the

designation/declaration form; and

(e) The constitutional importance that

Senator Duffy be at all times a

resident of PEI.

56. Justice Vaillancourt also found, as did Deloitte, that all of Senator Duffys travel

claims were appropriate.

The Expulsion from the Senate

57. On October 17, 2013, Senator Carignan, then Leader of the Government in the

Senate, moved that Senator Duffy be suspended for what he alleged was "gross

negligence" in the management of his parliamentary resources and that, during the period

of suspension all remuneration or reimbursement of expenses from the Senate, including

any sessional allowance or living allowance and pension accrual, be withheld, and that
 19

Senator Duffy be denied the right to use Senate resources and that he not receive any other

benefit from the Senate.

58. This so called suspension was in effect 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 Senates

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.
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64. Senator Duffy attended at the Senate in October and November 2013, to try to

defend himself from the motion for suspension, despite his doctors orders that he should

not be working.

65. On November 5, 2013, the Senate voted in favour of Senator Duffys 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 Duffys suspension was made in the absence of a hearing on the charge of

gross negligence, in defiance of the presumption of innocence until proven guilty

according to law, in the absence of a fair and public hearing by an independent and

impartial tribunal, and contrary to the principles of natural justice and to fundamental

justice.

67. On June 4, 2015, the Auditor General of Canada reported to the Senate that 30

Senators, not including Senator Duffy, were found to have incurred expenses that were

determined not to be in accordance with the applicable Senate rules, policies or guidelines,

such inappropriate expenses totalled $772,838.87.

68. Not one of those 30 Senators, who included Senator Carignan who had moved the

motion against Senator Duffy, was accused of "gross negligence", suspended, denied

sessional allowance, living allowance, pension accrual, or use of Senate resources or any

other Senate benefit.

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

only for purely political motives.

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70. Senator Duffys suspension had no limits. Due to the Senates actions, Senator

Duffys place in the Senate became vacant: not for a day, or a week, or even a month. The

vacancy was indefinite until Parliament was prorogued - a date which was unknown at the

time. His suspension continued until August 5, 2015 when Parliament was prorogued

due to the pending election.

71. During all this time, Prince Edward Island did not have its full complement of

representation in the Senate.

72. At the time of prorogation in August, 2015, Senator Duffy had been charged with a

criminal offence. His suspension continued until he was acquitted of all charges on April

21, 2016.

The RCMP Investigation

73. The RCMP investigation into Senate expenses included the investigation into Nigel

Wright due to the $90k payment and for exerting pressure on the Senate sub-committee to

cleanse the Senate report relating to Senator Duffys audit.

74. As pertaining to Nigel Wright, the RCMP had been considering charges of breach

of trust, frauds on the government, bribery of a judicial officer and Parliament of Canada

offences.

75. On June 13, 2013, Nigel Wrights 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 Duffys behalf. He also indicated he was willing to

meet with RCMP investigators.

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76. On March 18, 2014, two RCMP officers interviewed Nigel Wright in the presence

of his lawyers. The purpose was to ascertain whether he could be a witness and provide

Senator Duffys 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 Duffys 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 Wrights 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 Duffys 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 influential and held an

important position, Senator Duffy was a more high-profile target. The investigation into

the Senate of Canada was the primary focus of the RCMP and nothing would or could

dissuade them from that main target, even the clear email evidence which they had in their

possession.

83. On April 15, 2014, the RCMP dropped its nearly year-long investigation into Nigel

Wright on the basis that the evidence gathered did not support criminal charges against

him.

84. On July 17, 2014, Senator Duffy was charged by the RCMP with 31 offences

relating to Senate expenses and the $90k cheque.

The Findings of Justice Vaillancourt in R. v. Duffy

85. In R. v. Duffy, Justice Charles Vaillancourt concluded that the facts related to the

$90k payment were explicitly outlined in the email traffic that flowed between members of

the PMO, members of the Senate and Senate staff, Senator Duffy, and Janice Payne,

counsel for Senator Duffy.

86. These emails were in the possession and fully known by the RCMP many months

prior to charges being laid against Senator Duffy.

87. Justice Vaillancourt concluded that the PMO wielded significant power. He stated

that in an effort to calm the political storm that was Senator Duffys 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.

Wrights orders?

[1032] Were those same senior members of the Senate robotically marching forth

to recite their provided scripted lines?

[1033] Did Nigel Wright really direct a Senator to approach a senior member of an

accounting firm that was conducting an independent audit of the Senate with the

intention to either get a peek at the report or part of the report prior to its release to

the appropriate Senate authorities or to influence that report in any way?

[1034] Does the reading of these emails give the impression that Senator Duffy was

going to do as he was told or face the consequences?

[1035] The answers to the aforementioned questions are: YES; YES; YES; YES;

YES; and YES!!!!!

[1036] The political, covert, relentless, unfolding of events is mindboggling and

shocking.

[1037] The precision and planning of the exercise would make any military

commander proud.
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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 Duffys 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 Wrights funds so that the government could rid

itself of an embarrassing political fiasco that just was not going away: they aimed to put an

end to the Chinese water torture of more facts becoming public which the Prime Minister

does not want.

90. In addition to finding that Senator Duffy resisted against the Forced Scenario,

Justice Vaillancourt also found that Senator Duffy did not receive a true advantage or

benefit. In fact, he found that the opposite was true: the true recipients of any benefit (the

disappearance of political embarrassment) were Nigel Wright, the PMO, the Prime

Minister and the Conservative Party of Canada. By implication, this also benefitted the

Conservative members of the Senate who were conscripted to assist the PMO in pressuring

their scenario upon Senator Duffy.

91. At trial, Crown Counsel suggested that Senator Duffys 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 Duffys position of
 26

trust. Justice Vaillancourt stated that if one were to substitute the PMO, Nigel Wright and

others for Senator Duffy in the aforementioned sentence, you would have a more accurate

statement.

92. Senator Duffy was acquitted of all counts. No appeal was taken from the judgement

and factual findings of Justice Vaillancourt they are final.

Continued Prosecution by the Senate

93. On July 25, 2016, well after Judge Vaillancourts factual findings and complete

exoneration of Senator Duffy, the Senate announced that it would be clawing back $17,000

from Senator Duffys 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 Senates own policy of legal

re-imbursement.

96. On December 12, 2016, Senator Duffy wrote to the Senate and requested

reimbursement of the salary, living allowances and pension accruals that were withheld

because of the Senate motion to suspend him on November 5, 2013.

97. The Senate, to date, has not replied.

 27

Prolonged Media Scrutiny

98. The media scrutiny regarding expenses concerns began in earnest in December

2012. The media covered the senate committee investigation, the Deloitte investigation,

the payment of the 90K and extensive exposure of the Senate. The media frenzy extended

from there to the very public suspension of Senator Duffy from his position without due

process and for an indefinite period of time.

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

lengthy criminal trial was a national media focus for a year.

100. Senator Duffy and his family have been subjected to intense and unrelenting

negative media coverage for over 3 years.

101. Even after his acquittal on all charges and return to the Senate, the media scrutiny

into Senator Duffys life and work has not abated.

102. Senator Duffys reputation is forever tied to the Senate expense investigation, the

controversy over the $90K payment, and the subsequent criminal trial. It has had a

profound effect on his reputation, health and well-being and that of his family.

103. As result of the actions of the Defendants, Senator Duffy suffered significant

emotional, physical, and economic damages as discussed more fully in the damages

section below.

IV. LIABILITY

A. The Senate and the Crown

 28

Malicious Prosecution

104. The Senate is liable for malicious prosecution on the following grounds:

(a) The Senate, through the CIBA,

initiated an investigation into

Senator Duffys expense claims;

(b) The CIBA engaged a third-party

auditor to assist with the

investigation of Senator Duffys

claims on February 14, 2013;

(c) The CIBA cleared Senator Duffy of

any administrative wrong doing

based on the Deloitte Report on May

9, 2013;

(d) The CIBA completely reversed its

opinion, based on no new evidence

before it, solely for political damage

control purposes and pursuant to the

PMO direction. CIBA concluded on

May 22, 2013 that Senator Duffys

expenses were wrongly claimed;

29

(e) The CIBA referred Senator Duffys

case to the RCMP for investigation

on May 29, 2013;

(f) Neither the CIBA nor the Senate as a

whole, conducted any further

investigation, committee hearings,

or any other form of investigation

into Senator Duffys actions or

expense claims;

(g) Notwithstanding any usual practice

or provision of the Rules of the

Senate, and without any further

investigation, hearing, or

introduction of evidence, the Senate

moved to suspend Senator Duffy for

gross negligence on October 22,

2013;

(h) There was no hearing, no evidence

called and no genuine opportunity

for Senator Duffy to meaningfully

respond to the vaguely worded but

very serious allegations against him;

30

(i) On November 5, 2013, the Senate

voted to suspend Senator Duffy

without pay, including expulsion

from the Senate Chamber, denial of

pension accrual, denial of all Senate

expenses, denial of access to his

office, and denial of living and travel

allowances;

(j) Senator Duffy was charged by the

RCMP with 31 offences relating to

Senate expenses on July 17, 2014;

(k) The suspension of Senator Duffy

ended upon the dissolution of

Parliament on August 2, 2015;

(l) After the dissolution of Parliament

on August 2, 2015, the Senate

continued its suspension without pay

of Senator Duffy (and all the other

sanctions) based on the charges he

was facing and the upcoming

criminal trial;
31

(m) Senator Duffy was acquitted on all

charges by Judge Vaillancourt on

April 21, 2016;

(n) On July 25, 2016, and despite the

Judgment of the Court, the Senate

proceeded to deduct further amounts

from Senator Duffys salary based

on the same expense claims

analyzed by Judge Vaillancourt at

trial and found to have been

appropriately claimed and within

Senate administrative rules;

(o) On August 24, 2016, the CIBA

improperly rejected a request to

partially reimburse Senator Duffy

for legal expenses and

disbursements incurred in the

successful defence of the criminal

charges he faced despite the Senates

own policy for such reimbursement;

(p) Senator Duffy sent a written request

to the Senate for reimbursement of

 32

his wrongfully withheld salary,

pension accrual and living

allowance during the period of

suspension. The Senate has failed to

respond to Senator Duffy;

(q) The Senate lacked reasonable and/or

probable grounds to both commence

and continue the prosecution against

Senator Duffy considering that:

(i) The Deloitte report concluded Senator Duffy had not violated any

Senate expense rules;

(ii) The Twenty-Second CIBA report cleared Senator Duffy of any

administrative malfeasance in his senate expense claims;

(iii) The Twenty-Sixth CIBA report dramatically reversed its position

on Senator Duffys claimed expenses based on no new evidence,

based on the PMOs political goals, and without affording Senator

Duffy fair notice and real and meaningful opportunity to comment;

(iv) The decision to repay $90,000 in valid expense claims was forced

upon Senator Duffy by Nigel Wright and the PMO as part of a

political damage control scenario scripted by the PMO;

 33

(v) Judge Vaillancourt found that Senator Duffy had not violated any

Senate expense rules;

(vi) The Senate lacked the constitutional power to suspend and

effectively expel and punish Senator Duffy under the

circumstances; on the basiss set out in paragraphs 58 to 62 above;

(vii) In the circumstance suspending Senator Duffy without limit in time

amounted to declaring the place of Senator Duffy to be vacant, in

violation of Constitution Act, 1867, s. 31;

(viii) The Senate lacked the constitutional power to suspend a Senators

pay in the absence of a final criminal conviction or wilful absence

from the Senate;

(ix) In the alternative, if the Senate had the constitutional power, it did

so in the absence of facts that made it necessary for the Senate to use

that power under the circumstances;

(x) In the further alternative, if the Senate had the power to suspend

Senator Duffy under the circumstances, the scope of the power used

far exceeded what was constitutional under the circumstances;

(xi) The Senate failed to follow the rules of natural justice or fairness in

its investigation, prosecution and punishment of Senator Duffy;

 34

(xii) The Senate failed to abide by section 7, 11(d) and/ or 12 of the

Charter of Rights and Freedoms, in its investigation, prosecution

and punishment of Senator Duffy; Commented [Cu1]: Particularize: you are probably referring to s.
7, but in view of the referral to the RCMP you might consider also
referring to s. 11(d), and 12 as you do below.

(xiii) The motivation of the Senate to investigate, prosecute and punish

Senator Duffy was based on the improper purpose of furthering

political agendas; self-serving to the political popularity of the

Government of the Day; and in violation of the Senates duty to act

as a sober second thought to government, not as the governments

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 Senates

continuing persecution and prosecution of the Senator on the same

matters determined by a Court of law.

105. The Senate is vacuously liable for the torts of all its members including without

limiting the generality of the foregoing, The Senators affiliated with the governing

Conservative party who used or abused their authority as set out in paragraph 104(q)

above.

106. As such, the Plaintiff claims damages for malicious prosecution.

 35

Misfeasance in Public Office

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

sub paragraphs 104 (d), (e), (f), (g), (h), (i), (l), (n), (o), and (q).

108. These actions were motivated by an improper and unlawful purpose, thus making

these acts unlawful in the administrative law sense.

109. The members of the Senate affiliated with the governing Conservative party knew

that their actions would harm Senator Duffy and they did.

Unjust Enrichment

110. The Senate is liable to Senator Duffy for unjust enrichment:

(a) The Senate wrongfully withheld

Senator Duffys salary and related

benefits from November 2013 to

August 2015 and did not reimburse

the withheld salary or pension

accrual upon Senator Duffys

acquittal on all charges;

(b) Senator Duffy has been deprived of

his constitutionally protected salary

and pension accrual, living and

travel expenses as well as suffering

36

the public shame of denial of access

to the Senate or even his own office;

(c) The Senate wrongfully reclaimed

and there by unjustly enriched itself

by deducting $17,000 from Senator

Duffys current salary for past

expenses deemed valid by Judge

Vaillancourt;

(d) Senator Duffy was deprived of

partial legal expense

indemnification during the above

noted investigation, prosecution, and

trial.

(e) The Senate lacks the power to

withhold the Senators salary under

the circumstances;

(f) The Senate lacks the power to set-off

administrative expenses from the

Senators salary under the

circumstances;
 37

(g) The Senate unjustly enriched itself

through procedures and actions that

violated the rules of natural justice

and the Charter, but which caused

damages to Senator Duffy; and

(h) The Senate acted ultra vires and/ or

without legal basis in unjustly

enriching itself at the expense of

Senator Duffy. The findings in the

criminal proceeding against Senator

Duffy are conclusive in these civil

proceedings and therefor the actions

of the members of the Senate

constitute a collateral attack upon

the decision of Judge Vaillancourt.

111. As such, the Plaintiff claims damages for unjust enrichment. Commented [Cu2]: I would reorganize this section to show more
clearly a roadmap for the required elements of UE, ie an enrichment, a
corresponding impoverishment, and the absence of any juristic reason
for these, following Dicksons classic statement, and its progeny in the
Unconstitutional Actions jurisprudence., As to the last requirement, the comments above, as to
improper and illegal or ultra vires actions in the administrative law
sense, could be fortified by the collateral attack rule ie the findings in
a criminal proceeding are conclusive in civil proceedings (subject to
claims of abuse of process or fresh evidence which are not applicable
112. Section 31 of the Constitution Act sets out the basis upon which the place of a here): see Toronto v, CUPE Local 79, 2003 3 SCR 77, and generally
Perrell and Morden, The Law of Civil Procedure in Ontario, p 92.
Senator can become vacant. As none of these pre-conditions existed, the Senate was acting

outside of its authority when it suspended Senator Duffy indefinitely without pay or

privileges.
 38

113. The Senate unconstitutionally withheld and failed to reimburse, the Plaintiffs

constitutionally protected Senators remuneration and pension accrual (as well as living

and travel allowance) in violation of the Constitutional Act, 1867 and the Parliament of

Canada Act.

114. As such the Plaintiff claims damages for this constitutional tort. The Plaintiff also

seeks a declaration that the suspension of Senator Duffy together with the suspension of his

salary, suspension of his benefits, claw-back of expenses, his virtual expulsion and ban

from the Senate on Nov. 5, 2013 and onwards was unconstitutional.

115. The Plaintiff also seeks a declaration that the investigation, prosecution and

punishment of Senator Duffy by the Senate, as described above, lacked procedural fairness

and were in violation of the rules of natural justice.

Charter

116. The actions of the Senate as described above deprived the Plaintiff of his rights

under section 7, 11 and 12 of the Charter.

117. The actions of the Senate as described in the paragraphs above constitute a

violation of the Plaintiffs 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 Plaintiffs rights with regard to proceedings in penal matters to:

 39

(a) To be presumed innocent until

proven guilty according to law in a

fair and public hearing by an

independent and impartial tribunal;

(b) Not to be found guilty on account of

any act or omission unless, at the

time of the act or omission, it

constituted an offence under

Canadian or international law or was

criminal according to the general

principles of law recognized by the

community of nations; and

(c) If finally acquitted of the offence,

not to be tried for it again.

all guaranteed by section 11 of 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 specific cause of action also

forms a part of the allegations relied upon by the Plaintiff as supporting each of the other

causes of action.

121. The Senate is vicariously liable for the torts committed by its Senators and is liable

for the actions of the whole Senate.

122. Furthermore, and/or in the alternative, the AGC on behalf of the Crown is

vicariously liable for torts committed by her agents including the senate.

B. The Attorney General of Canada on Behalf of the RCMP

Negligent Investigation

123. The AGC, on behalf of the RCMP, is liable for negligent investigation:

(a) It initiated criminal proceedings

against Senator Duffy on July 17,

2014;

(b) It was negligent in its duty owed to

suspects of a crime and fell well

below the applicable standard of

care;

(c) The charges were fully resolved in

favour of the Plaintiff on April 21,

 41

2016 and factual findings were made

that the plaintiffs expense claims

and conduct were appropriate and

within the Senate administrative

rules; and

(d) The Plaintiff suffered damages as a

result of the negligence.

124. The AGC was negligent on the following grounds:

(a) It failed to conduct an appropriate

investigation prior to charging

Senator Duffy;

(b) It lacked reasonable and probable

grounds to charge Senator Duffy;

(c) It failed to obtain any evidence of

any criminal activity on the part of

Senator Duffy prior to his arrest;

(d) It treated Senator Duffy as a

valuable target which produced an

investigation 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;

(e) It failed to provide Senator Duffy

with a real opportunity to provide his

side of the story prior to laying

charges;

(f) It disregarded and improperly

ignored exculpatory expert

accounting/audit evidence,

exculpatory emails, and exculpatory

witness interviews prior to the

charging of Senator Duffy;

(g) It failed in its duty to be full, frank

and fair in the Informations to

Obtain (ITOs)

(h) It consented to and/or facilitated

access to the contents of

Informations to Obtain (ITOs) when

they knew or ought to have known

that the contents of those ITOs were

 43

one-sided, unfair and/or inaccurate

and would cause damage to Senator

Duffy; and

(i) The AGC is vicariously liable for the

torts committed by the RCMP and

its Officers.

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

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

investigation.

126. As such, the Plaintiff claims damages for negligent investigation.

Negligence

127. The Plaintiff states that the AGC is negligent, the particulars of which include, but

are not limited to, the following:

(a) It failed to ensure that the RCMP and

its Officers were properly trained

and/or that guidelines were provided

on proper police procedure

regarding probable grounds to

charge, and investigative techniques;

 44

(b) Alternatively, if any such training

and/or guidelines were provided, as

outlined above, the RCMP and its

Officers, for whom it is responsible,

failed to ensure that the

training/guidelines were followed;

(c) It failed to ensure proper supervision

of its employees in the execution of

their duties.

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

and reputational damage as a direct result of the AGCs negligence.

129. As such, the Plaintiff claims damages for negligence.

V. DAMAGES

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

claims damages for the following:

General Damages

130.

(a) Pain, suffering and loss of

enjoyment of life, including the loss

of friendships and trust. Senator

 45

Duffy has 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;

(b) Extreme damage to his reputation

nation-wide including, continual

mocking and satire in the media;

(c) Mental distress, including,

(i) Severe anxiety; and

(ii) Depression.

(d) Physical distress, including

(i) Aggravation to his heart condition including the need for a second

open-heart surgery;

(ii) Insomnia and nightmares;

(iii) Exacerbation of his diabetes condition including diabetic

retinopathy; and

(iv) Headaches.
 46

(e) Senator Duffys pre-existing heart

condition was greatly exacerbated

due to the actions of the Defendants.

His heart condition deteriorated

significantly as a result, requiring

extensive and significant surgery;

and

(f) Senator Duffy has been required to

take increased and new medications

to treat the exacerbation of ongoing

medical issues as well as to treat new

conditions caused by the

Defendants actions.

131. Senator Duffys acquittal at trial has not remedied his damages. A significant

stigma still remains. Senator Duffy continues to suffer emotional and physical

damage due to the continued and prolonged reputational damage that continues to

this day, including daily mention, mockery and ridicule in media outlets

nation-wide.

Loss of Income, Loss of Competitive Advantage and Loss of Earning Capacity

 47

132. Due to the actions of the Defendants, Senator Duffy suffered the following

economic losses:

(a) Loss of salary from Nov. 5, 2013 to

Aug. 2, 2015;

(b) Loss of living allowance from Nov.

5, 2013 to April 22, 2016;

(c) Loss of pension accrual from

November 5, 2013 to April 22, 2016.

(d) Partial loss of salary from July 25,

2016 onward.

133. The Plaintiff, who had been a frequently requested and high-profile speaker at

events, lost all future speaking engagements and the ability to earn income outside of his

Senate salary, which itself was suspended for the period outlined above.

134. The Plaintiff claims the above damages as against the Senate, save for the portion

of pension accrual lost for the period from Aug 2, 2015 to April 22, 2016, which he claims

as against the AGC.

Special Damages

135. As a result of the actions of the Defendants as described above, Senator Duffy

suffered special damages, including, over three years of legal fees incurred to defend
 48

himself from administrative, criminal and penal charges, the particulars of which will be

provided prior to trial.

Punitive Damages

136. The actions of the Defendants, as described above, were malicious, callous and

high-handed and politically motivated. The actions of the Defendants, as described above,

serve to undermine the publics confidence 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 officers involved in Senator Duffys case were

acting within the authority of their employment, as such the AGC is liable for their actions

pursuant to section 5 of the Proceedings Against the Crown Act, R.S.O, 1990, c. P. 27.

138. The Plaintiff pleads and relies on the following legislation:

(a) Courts of Justice Act, R.S.O. 1990,

c. 43, as amended;

(b) Proceedings Against the Crown Act,

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

(c) Negligence Act, and R.S.O. 1990, c

N.1, as amended;

(d) Parliament of Canada Act;

 49

(e) Constitution Act, 1867; and

(f) Canadian Charter of Rights and

Freedoms.

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

July 17, 2017 GREENSPON, BROWN & ASSOCIATES

331 Somerset Street West
Ottawa ON K2P 0J8

Lawrence Greenspon
lawrence@greensponbrown.ca
Tina Hill
tina@greensponbrown.ca
Tel: 613-288-2890
Fax: 613-288-2896

Counsel to the Plaintiff

SENATOR MICHAEL THE SENATE OF CANADA and Court File No:
DENNIS DUFFY and THE ATTORNEY GENERAL OF
CANADA
Plaintiff Defendants

ONTARIO
SUPERIOR COURT OF JUSTICE

Proceeding commenced at Ottawa

STATEMENT OF CLAIM

GREENSPON, BROWN &

ASSOCIATES
331 SOMERSET STREET WEST
OTTAWA ON K2P 0J8

LAWRENCE GREENSPON (#20103D)

TINA HILL
Tel: (613) 288-2890
Fax: (613) 288-2896

Counsel to the Plaintiff