The Gloaming of International Human Rights in Canada?

I prevously blogged about  Bill C-10 (short title: Safe Streets and Communities Act), an omnibus criminal law statute, which received Royal Assent on March 13, 2012 —which includes the “Justice for Victims of Terrorism Act and to amend the State Immunity Act” [“JVTA”] —creating a specific cause of action for victims of terrorism, enabling them to sue for loss or damage as a result of actions punishable under the Criminal Code. This part also amends the State Immunity Act (“SIA”) lifting state immunity of foreign states that sponsor terrorism or terrorist activity, but does nothing to improve the prospects for access to justice to Canadian victims of torture and war crimes.

Recently, the Quebec Court of Appeal in Islamic Republic of Iran c. Hashemi, 2012 QCCA 1449 (CanLII) upheld state immunity for torture of Canadian citizens abroad. See my previous post here.

Today, the Supreme Court of Canada denied an application for leave to appeal in Association canadienne contre l’impunité v. Anvil Mining Limited (Québec C.A., January 24, 2012) (34733). The Canadian Centre for International Justice (CCIJ) issued a press release describing the Court’s decision denying leave as the “end of any judicial relief in Canada for victims of the Kilwa massacre”. The CCIJ adds:

The CAAI [Canadian Association against Impunity], an organization representing survivors and families of victims of the 2004 Kilwa massacre] expressed its profound disappointment with the Supreme Court’s refusal to hear the case. “It is unacceptable that in 2012, victims are still unable to hold Canadian companies accountable in Canadian courts, for their alleged involvement in serious human rights violations committed abroad. We look forward to a time when Canadian companies are held responsible for their actions,” said Matt Eisenbrandt, a member of the Board of Directors of the CAAI.

In November 2010, families of the Congolese victims, through the CAAI, filed a class action against Anvil Mining accusing it of involvement in the atrocities through having provided logistical support to the Congolese army. The army raped, murdered and brutalized the people of the town ofKilwa in the DRC. According to the United Nations, an estimated 100 civilians died as a direct result of the military action, including some who were executed and thrown in mass graves. Anvil Mining has admitted to providing the army with trucks, food, lodging and other logistical support but claims it was requisitioned by the authorities and denies any wrongdoing.

In April 2011, Justice Benoit Emery of the Quebec Superior Court ruled the case could proceed to the class certification stage. However, the Quebec Court of Appeal, despite stating sympathy for the obstacles faced by the victims in seeking justice, overturned the earlier Court’s decision on jurisdiction.

This may well be the gloaming of international human rights in Canada, but a ray of hope shines through in the recent decision of Allen J. in Bennett Estate v. Islamic Republic of Iran, 2012 ONSC 5886 (CanLII), which granted the Plaintiffs a Mareva injunction restraining Iran and the Iranian Ministry of Information and Security (“the Defendants”) from disposing of, encumbering or otherwise dealing with any of its assets in Canada, specifically, three assets which are real property situate in Ontario.

The Plaintiffs sued the Defendants in  the United States for damages for the wrongful death of the late Ms. Bennett, a U.S. citizen at the time, who was killed as a result of a terror attack bombing by Hamas at the Hebrew University where she was a student. In the U.S. the Plaintiffs claimed damages for Ms. Bennett’s death on the grounds the Defendants provided material support to Hamas, the organization responsible for the bombing. Madam Justice Allen notes,

[4]         On a standard of “clear and convincing evidence”, the Plaintiffs proved their claim to the satisfaction of the United States District Court for the District of Columbia (“the U.S. Court”). The U.S. Court found that Iran and the Iranian Ministry of Information and Security (MOIS) provided persistent support to Hamas. Judgment was ordered on August 30, 2007 in favour of the Plaintiffs in the amount of $12,904,548 (USD) (“the U.S. Judgment”) [Bennett v. Islamic Republic of Iran 507 F.Supp.2d 117 (2007)]. The U.S. Judgment is final and binding in respect of the U.S. Court. Problems arose in the Plaintiffs’ attempts to enforce the U.S. Judgment against Iranian assets in the U.S.

[5]         On this motion, the Plaintiffs filed an affidavit sworn on October 8, 2012 by a U.S. attorney, Thomas Fortune Fay, who attested to his successful representation in the U.S. of other plaintiffs in actions against Iran for damages arising from Iran’s support of terrorist acts. Mr. Fay gave evidence as to the conduct of Iran in face of such law suits and in particular Iran’s practice of not defending the actions on their merits. Mr. Fay points out that once a judgment has been obtained Iran immediately takes steps to avoid Iran’s assets in the U.S. from being attached.  This has been the case with attempts to give effect to the U.S. Judgement. The Plaintiffs have not been able to enforce the U.S. Judgment against Iranian assets in the U.S.

[6]         The Plaintiffs commenced an action in the Ontario Superior Court on September 13, 2012 seeking an Order to recognize the U.S. Judgment in Ontario. Understandably, the Plaintiffs have had some difficulty serving its Statement of Claim on the Defendants given the closing of the Iranian Embassy. At the time of the motion the Plaintiffs were continuing in their efforts to accomplish service through the Deputy Minister of Canada’s Department of Foreign Affairs and International Trade.  The Deputy Minister has received the Statement of Claim and the Plaintiffs await word as to the Department’s success in effecting service.

The Plaintiffs filed an expert affidavit from Professor Farrokh Zandi, a Professor of Economics at York University in Toronto, who related how international economic sanctions imposed by the international community against Iran have proven fruitless; the Iranian regime continues to blithely ignore the UN imposed sanctions and conceals its ownership in assets and its involvement in businesses and other economic activities (at para. 8-14).

The Plaintiffs proffered evidence of three properties (two in Ottawa, one in Toronto) either legally or beneficially owned by Iran.

The motion judge then applied the five-factored test for a  Mareva injunction (citing Sibley & Associates LP v. Ross2011 ONSC 2951 (CanLII), 2011 ONSC 2951, at para. 11, (Ont. S.C.J.) and Chitel v. Robart (1983), 39 O.R. (2d) 513 (Ont. C.A.)]. The Plaintiffs must:

(a)   make full and frank disclosure of all material facts within its knowledge: the Plaintiffs in their affidavit material addressed potential defences, including lack of conclusive evidence of legal or beneficial ownership or ability to attach the former Iranian Embassy and the impeachment defences of fraud, natural justice and public policy);

(b)   provide particulars of the claim, stating the grounds of the claim and the amount thereof, and the points that could be fairly made against it by the defendant: the Plaintiff must show a “strong prima facie” case on the merits. In this case, Allen J. held:

[29]      Foreign states generally enjoy immunity from law suits in Canada under the State Immunity Act, R.S.C. 1985, c. S-18s. 6.1, with exceptions, one of which applies to Iran. Because Iran is listed under the State Immunity Act as a sponsor of state terrorism and the claims arising from the U.S. Judgment arise out of a claim of state terrorism, Iran does not enjoy this immunity. Immunity therefore does not stand as a bar to Ontario recognizing the U.S. Judgment.

[30]      An Ontario court will recognize a foreign judgment that is final and binding in respect of the issuing court and where the foreign court “properly assumed jurisdiction when the circumstances are tested against Ontario’s law on jurisdiction [Beals v. Saldanha, 2003 CarswellOnt 5101 (S.C.C) and Oakwell v. Enernorth, 2006 CarswellOnt 3477 (Ont. C. A.)]

[31]      The Plaintiffs, I find, have raised a strong prima facie case with respect to those criteria.

(c)   give some grounds for believing that there are assets in the jurisdiction: Madam Justice Allen found that the Plaintiffs met the “strong prima facie” case standard with respect to the evidence of legal or beneficial ownership of the the properties, including the former Iranian Embassy which the learned judge held was not immune from attachment as “[n]either Article 27 nor Article 31 of the Vienna Convention on Consular Relations is cited in s. 3(1) of [the Foreign Missions and International Organizations Act, S.C. 1991, c. 41, as amended (the “FMIO Act”)] as having the force of law in Canada.

(d)   give some grounds for believing that there is a real risk that the assets will be removed from the jurisdiction, disposed of within the jurisdiction or otherwise dissipated so that the moving party will be unable to satisfy a judgment awarded to him or her: The Plaintiffs also  filed an affidavit sworn by their U.S. counsel, Thomas Fortune Fay, who attested to his successful representation in the U.S. of other plaintiffs in actions against Iran, including providing several examples of his knowledge of Iran’s practices in avoiding or attempting to defeat or hinder creditors by removing them from the U.S. jurisdiction; and

(e)   provide an undertaking as to damages- The Plaintiffs gave the salutary undertaking as to damages as required under the Rules.

Since this was an ex parte injunctive motion under Rule 40 of the Rules of Civil Procedure, once the Statement of Claim and Injunction Order are served on  Iran and the Iranian Ministry of Information and Security (good luck with that), they will have an opportunity to raise defences and seek to vary the Order or have it set aside at the expiry of ten the days.

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