Posts Tagged ‘Quebec’

Assuming Jurisdiction in Tort Cases Over Non-Contracting Parties

May 27, 2013

Trillium v. General Motors of Canada et al, 2013 ONSC 2289 (CanLII) [“Trillium“] attempts to answer the lingering question of how and when will a court assume jurisdiction in a tort case over contractual non-parties. (more…)

Supreme Court of Canada grants leave to appeal in Kazemi v. Rep. of Iran torture case

March 7, 2013

Zahra Kazemi shown before her arrest.

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.

Stay tuned.

International Litigation Articles in the Latest Issue of The Advocates’ Quarterly

October 2, 2012

The latest issue of The Advocates’ Quarterly Vol. 40, Number 2 (September 2012) (Canada Law Book -print or online subscription required)  has some articles of  interest to international litigators:

  • Matthew E. Castel, Anti-Foreign Suit Injunctions in Common Law Canada and Quebec Revisited (195)
  • Nicholas Pengelley, ‘‘We All Have Too Much Invested to Stop’’: Enforcing Chevron in Canada (213)
  • Ken MacDonald, The Hague Convention Stymies Actions Against Foreign Corporations: Khan Resources Inc. v. Atomredmetzoloto JSC (303)

Your American Subpoena Ain’t No Good ‘Round Here

October 2, 2012

American law firms and lawyers often serve subpoenas on Canadians as non-parties to the U.S. civil litigation. When they do so, they presume that the subpoena is valid and enforceable in Canada.

Well, it’s not. (more…)

Two-Year Limitation Period Applies to Enforcing Foreign Judgments in Ontario

April 10, 2012

In  Commission de la Construction du Québec v. Access Rigging Services Inc., 2010 ONSC 5897 (S.C.J.) [“Access Rigging“] the Ontario court confirmed that the two-year limitation period under the Limitations Act, 2002, S.O. 2002, c. 24 applies to the enforcement of foreign judgments.  In Access Rigging, the plaintiff brought an application to enforce a judgment from Quebec. The court noted that Quebec is not a member of the Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5, which provides a six-year limitation period on the enforcement of judgments from reciprocating provinces. The applicant originally sued in Quebec and obtained a default judgment in November 2005 for the grand total of $9,792.94 for amounts paid under an employment plan.   (more…)

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