TORONTO - A judge's findings in freeing a Syrian-born man from almost eight years of national security detention should be enough to validate his civil claim against the federal government, his lawyers are set to argue this week.
On the contrary, government lawyers say, the Federal Court findings in favour of Hassan Almrei should not apply to his lawsuit because they were made for an entirely different purpose.
It will be up to Ontario's top court to choose between the two competing visions in deciding whether a lower court justice was right to side with the government.
Most of the arguments before the Ontario Court of Appeal are highly technical — essentially turning on whether the Federal Court that quashed Almrei's national security certificate decided once and for all the issues now at play in his civil suit.
Almrei, 38, of Mississauga, Ont., came to Canada in 1999 and was granted refugee status in 2000. He spent almost eight years in custody or house arrest as a security threat until Federal Court Judge Richard Mosley set aside the designation in December 2009 after a 38-day trial.
Mosley found no evidence he had ever been a member of al Qaida, and that the government relied on outdated information against him some of which might have been obtained through torture.
Following that decision, Almrei launched a civil suit against the government and others seeking more than $16 million in general and punitive damages for, among other things, false imprisonment, negligent investigation and abuse of public office.
Almrei's lawyers then asked Ontario Superior Court for a summary judgment in his favour, arguing Mosley had already decided for him on the factual underpinnings of his lawsuit.
The government, which maintains Canadian officials always acted in good faith, argued Mosley's findings had no bearing on the civil suit. It said the same issues needed to be thrashed out at a full trial.
In April last year, Superior Court Justice Sidney Lederman agreed with the government that a trial is needed, prompting Almrei's lawyers to take their case for summary judgment to the Appeal Court.
Beyond the legal technicality of "estoppel" at play, both sides are also arguing issues of fairness and justice.
Mosley's findings were based in part on a review of secret evidence that Almrei was never allowed to see. As a result, his lawyers say, it would be unfair to expect him to argue his lawsuit in the absence of that evidence.
"(Almrei) will not be able to prove many of the crucial elements of his tort claim," his lawyers say in their Appeal Court factum.
"Without proper consideration of this factor, it cannot be said that 'justice was done'."
The government argues Lederman made the right decision both technically and as a matter of fairness.
"In seeking partial summary judgment, Mr. Almrei relied solely on findings in proceedings whose object was very different from deciding the elements of the causes of action he now claims," the government says in its factum.
"The matters now at issue in the torts he claims were not the subject matter of that hearing and the findings must be interpreted in the context in which they were made."
In addition, if the Appeal Court decides Mosley's findings should stand for the civil suit, it would deprive the federal government of an opportunity to defend against the claim, Ottawa argues.
The two sides are scheduled to make oral arguments on Tuesday.