The recent Ontario decision in Amtim Capital Inc. v. Appliance Recycling Centers of America, 2013 ONSC 4867 (Ont. S.C.J.) [“Amtim Capital”] highlights the limits of judicial comity in international litigation and to what extent a default judgment in a foreign court will operate as res judicata, issue estoppel or abuse of process. It also provides insight into how most Canadian judges take a dim view of forum shopping. (more…)
Archive for the ‘international litigation’ Category
Tanya J. Monestier (Roger Williams University School of Law) has published “(Still) a ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada”, Fordham International Law Journal, Vol. 36, p. 397, 2013/Roger Williams Univ. Legal Studies Paper No. 136. The abstract reads:
In April 2012, the Supreme Court of Canada released the most important decision on personal jurisdiction in over twenty years. The Van Breda decision was intended to clarify, once and for all, the application of the “real and substantial connection” test to ex juris defendants. The Supreme Court in Van Breda adopted an approach to the real and substantial connection test that relied on the plaintiff fitting himself within one of four presumptive factors in order to establish jurisdiction: (a) The defendant is domiciled or resident in the province; (b) The defendant carries on business in the province; (c) The tort was committed in the province; (d) A contract connected with the dispute was made in the province. The Court also left open the possibility of creating additional presumptive factors in the future. The presumptive factors approach was intended to re-orient the jurisdictional test toward objective factual connections between the forum and the cause of action and to establish a simple and predictable framework for courts to use in making jurisdictional determinations. In this Article, I comprehensively examine the new presumptive factors approach to jurisdiction adopted by the Supreme Court in Van Breda with a view to exposing its shortcomings. I argue that this approach to jurisdiction – while simple and predictable on its face – will actually complicate jurisdictional determinations for the foreseeable future. Litigants will try to find creative ways to fit themselves within one of these four factors. And courts will spend years unpacking and defining the contours of the four presumptive factors. I also argue that the Court in Van Breda failed to provide meaningful guidance on how all pieces of the jurisdictional puzzle fit together. Among the outstanding questions: How does the real and substantial connection test work in non-tort cases? How do the traditional jurisdictional bases of consent and presence fit into the jurisdictional mix? Can the forum of necessity doctrine be reconciled with the real and substantial connection test? How does the test apply to the enforcement of foreign judgments? The Court simply left these hard questions until later. In short, while the Court in Van Breda was on the right track, it got derailed – which may ultimately mean another twenty years until the outstanding jurisdictional issues are sorted out.
Download a copy of the article at SSRN here.
The Supreme Court of Canada today granted leave to appeal in Estate of the Late Zahra (Ziba) Kazemi et al. v. Islamic Replubic of Iran et al. (Que.) (Civil) (By Leave) (35034) Coram: McLachlin / Abella / Cromwell.
Here is the SCC summary:
Canadian Charter of Rights and Freedoms – Public International Law – Jurisdictional immunity – Applicants beginning legal proceedings in Quebec against Iran, Iranian Head of State and other state officials in relation to alleged detention, torture and death of Canadian citizen in Iran – Defendants bringing motion to dismiss action as barred by State Immunity Act – Whether State Immunity Act bars civil actions initiated in Canada against a foreign State for acts of torture – Whether Canada’s obligation under United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment requires it to provide civil remedy to victims of torture occurring in foreign state – Whether s. 3(1) of State Immunity Act infringes s. 2(e) of Bill of Rights or s. 7 of the Charter by barring proceedings filed by Applicants – Whether the psychological harm caused to a victim of torture by inability to seek redress is sufficient to attract protection of s. 7 of Charter – Whether jurisdictional bar created by s. 3(1) of State Immunity Act is compatible with principles of fundamental justice enshrined in Bill of Rights and Charter – Whether the Court of Appeal erred in determining that state immunity applies to lower level state officials allegedly responsible for acts of torture – Canadian Bill of Rights, S.C. 1960, c. 44, ss. 2(e) – State Immunity Act, R.S.C., 1985, c. S-18, ss. 3 and 6 – Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85
In 2003, Zahra Kazemi, a Canadian citizen, was allegedly arrested, detained, tortured and killed by State authorities in Iran. Against the wishes of her family and of Canadian authorities, her remains were buried in Iran.
Her son, Stephan Hashemi, acting in his capacity as liquidator of his mother’s estate as well as in his personal capacity subsequently filed a civil liability claim in Quebec against Iran, the Head of State, the Chief Public Prosecutor as well as the former Deputy Chief of Intelligence for the prison in which Mrs. Kazemi was held. The claims of the Estate were for damages for the pain and suffering of Mrs. Kazemi in relation to her abuse, sexual assault, torture and death. The claim filed by Mr. Hashemi in his personal capacity sought damages for his pain and suffering provoked by the arrest, torture and death of his mother. Exemplary and punitive damages were also sought by the Estate and by Mr. Hashemi for the alleged unlawful and intentional interference with the rights and freedoms of both Mrs. Kazemi and her son. Lastly, the action sought an order that the respondents be required to disinter and release Mrs. Kazami’s remains so that they may be returned to Canada for an autopsy and burial.
The respondents brought a motion to dismiss the action on the ground that the suit was unfounded in law, alleging that the action was barred due to the application of s. 3 of the State Immunity Act of Canada, R.S.C. 1985 c. S-18 (“SIA”) which, as a general principle, prohibits lawsuits against foreign States before Canadian courts. Mr. Hashemi and the Estate countered with a constitutional challenge alleging that, if the State Immunity Act barred their claims, that Act was contrary to s. 2(e) of the Canadian Bill of Rights as well as s. 7 of the Charter insofar as it would deprive them of the right to seek a civil remedy against Iran in Canada.
For an analysis of the Quebec Court of Appeal decision in Kazemi, see my previous post: Quebec Court of Appeal Upholds State Immunity for Torture.
- Supreme Court to decide whether it will hear case of son of slain photojournalist (sunnewsnetwork.ca)
- Family of Canadian photographer killed in Iran wins bid to appeal case (theglobeandmail.com)
- Steen v. Islamic Republic of Iran (Ont. C.A.): A Silver Lining in the State Immunity Playbook? (thetrialwarrior.com)
- Iran releases former prosecutor tied to Zahra Kazemi death (cbc.ca)
- Iran releases ‘butcher of the press’ prosecutor linked to Canadian photojournalist Zahra Kazemi’s death (news.nationalpost.com)
- Iran official’s arrest means ‘nothing,’ says son of slain Canadian journalist (theglobeandmail.com)
- Iranian prosecutor implicated in torture death of Canadian Zahra Kazemi jailed (vancouversun.com)
- Prosecutor linked to Kazemi death released (metronews.ca)
- Iran jails former prosecutor linked to Zahra Kazemi death (cbc.ca)
- Kazemi’s son finds no satisfaction in jailing of Iranian prosecutor (macleans.ca)
An interesting development in the Lago Agrio/Chevron litigation battle , which was the subject of my Guest Post: Comments on the Lago Agrio Plaintiffs Enforcement Action in Canada at Ted Folkman’s Letters Blogatory.
Via the Juicio Crudo Blog (original in Spanish):
An international arbitration court yesterday issued a ruling in which it concludes that the Republic of Ecuador has violated previous interim awards of the same court authorized under international law and a treaty between the United States and Ecuador to not attempt to prevent the execution of a sentence of 19,000 million against Chevron Corp. (NYSE: CVX). In previous decisions, the court warned that if the arbitration Chevron ended imposing “any loss arising from the implementation (of the judgment) would be losses for which (the Republic) would be responsible (with Chevron) under international law.”
Convened under the authority of the Bilateral Investment Treaty (BIT, according to its acronym in English) between the United States and Ecuador, and administered by the Permanent Court of Arbitration at The Hague, the tribunal found that Ecuador breached previous court rulings and ordered to explain why the Republic should not be ordered to pay compensation to Chevron for all damages resulting from attempts by plaintiffs to enforce a judgment arising out of an environmental lawsuit against the company in Lago Agrio, Ecuador. (more…)