Supreme Court of Canada
Gouvernement de la République Démocratique du Congo v.
Venne, [1971] S.C.R. 997
Date: 1971-05-31
Le gouvernement de
la République démocratique du Congo Appellant;
and
Jean Venne Respondent.
1970: October 22; 1971: May 31.
Present: Fauteux C.J. and Abbott, Martland,
Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH,
APPEAL SIDE, PROVINCE OF QUEBEC
International law—Sovereign immunity—Action
by architect to recover from foreign State fees for services—Declinatory
exception—Waiver of immunity.
The respondent, an architect, claimed to have
been retained on behalf of the appellant government for the purpose of making
preliminary studies and preparing sketches in relation to the national pavilion
which the appellant proposed to build at Expo 67. The Congo decided not to
proceed with the pavilion. The appellant filed a declinatory exception whereby
it claimed that, by reason of its status as a sovereign state, it could not be
impleaded in the Quebec Courts. The material before the Courts consisted of the
declaration or claim, the declinatory exception and two formal admissions: that
the appellant had accredited its chargé d’affaires as its commissioner general
to the exhibition and also that the Democratic Republic of Congo is a sovereign
State. The exception was dismissed by the trial judge, and his judgment was
upheld by the Court of Appeal. The government of the Congo appealed to this
Court.
Held (Hall and
Laskin JJ. dissenting): The appeal should be allowed.
Per Fauteux
C.J. and Abbott, Martland, Judson, Ritchie, Spence and Pigeon JJ.: The record
as a whole discloses that the appellant’s employment of the respondent was an
act done in the performance of a sovereign act of state. It follows that the
appellant could not be impleaded in the Courts of this country even if the
so-called doctrine of restrictive sovereign immunity had been adopted in our
Courts. Cases concerning sovereign immunity decided in the Courts of the United
States in recent years are of little or no authority in Canada.
The proposition that a defendant can be taken
to have submitted to the jurisdiction by entering a plea to the effect that it
is not subject thereto, cannot be
[Page 998]
accepted. In any event, a sovereign state is
not to be held to have submitted to a sovereign jurisdiction unless the
submission be made in the face of the Court, coupled with a request that such
jurisdiction be exercised.
Per Hall and
Laskin JJ., dissenting: Resort to applicable rules of procedure for the
purpose of asserting immunity and contesting jurisdiction cannot be converted
into a submission to the Court’s authority to deal with the merits. To be
effective, waiver must be made in the face of the Court and at the time the
Court is asked to exercise its jurisdiction.
The Court is faced with an unqualified
contention that a sovereign state cannot as such be impleaded regardless of the
activity in which it is engaged and out of which a suit against it is brought
in a foreign domestic Court. To allow the declinatory exception would thus be
to reaffirm the doctrine of absolute immunity. That doctrine is spent. It would
be wrong to revive it on any view of a deficiency of evidence to overcome any
suggested presumption that when a sovereign state acts through an accredited
diplomatic representative any ensuing transaction with a private person is for
a so-called public purpose. Since jurisdiction which is invoked as here cannot
be effectively repudiated ab initio on the basis of unqualified
immunity, the action should proceed. Even if the immunity claimed herein is to
be tested on a restrictive basis, as it should be, there is not enough in the
record before this Court upon which a ready affirmation of immunity can be
founded. The claim cannot be allowed at this stage of the action.
APPEAL from a judgment of the Court of
Queen’s Bench, Appeal Side, province of Quebec,
affirming a judgment of Leduc J. which had dismissed a declinatory exception.
Appeal allowed, Hall and Laskin JJ. dissenting.
Barnabas Vizkelety, for the appellant.
Rosaire Beaulé, for the respondent.
The judgment of Fauteux C.J. and of Abbott,
Martland, Judson, Ritchie, Spence and Pigeon JJ. was delivered by
RITCHIE J.—This is an appeal from a judgment of
the Court of Appeal of the Province of Que-
[Page 999]
bec1 dismissing an appeal from a
judgment of the Superior Court of Montreal which disallowed the appellant’s
declinatory exception whereby it had claimed that, by reason of its status as a
sovereign state, it could not be impleaded in the Quebec courts.
The respondent is an architect who claims to
have been retained between February 1965 and March 1966 on behalf of the
appellant for the purpose of making preliminary studies and preparing sketches
in relation to the national pavilion which La République Démocratique du Congo
(hereinafter called “The Congo”) proposed to build at “Expo 67”. The
respondent’s declaration incorporated by reference an unsigned copy of a
contract, pursuant to which he claims to have been employed, and also certain
sketches of the proposed pavilion which he claims to have furnished to the
appellant. The respondent prepared a bill of $20,000 for services rendered
which he subsequently reduced to $12,000 and which was not paid because the
Congo decided not to proceed with the pavilion.
The appellant has not denied any of the
allegations contained in the declaration and no evidence whatever was called by
either party, but the following admissions made on behalf of the respective
parties constitute part of the record before this Court:
[TRANSLATION] The defendant admits through
counsel that on the dates alleged in the declaration Messrs. Félix Mankwe and
Pierre M’Balé were duly accredited Chargés d’Affaires of the Embassy of the
Democratic Republic of the Congo in Ottawa, and duly appointed Commissioners
General to the Montreal World Exhibition.
Signed:
VIZKELETY
The plaintiff admits through counsel that
since 1960 the Government of the Democratic Republic of the Congo has been a
sovereign state.
Signed:
G. GIRARD
The first paragraph of the declaration describes
the offer allegedly made by the appellant to retain the respondent’s
professional services as follows:
[TRANSLATION] 1. During the period from
November 1965 to March 1966, Mr. Félix Mankwe, Chargé
[Page 1000]
d’Affaires and Commissioner General for the
Democratic Republic of the Congo, Mr. Pierre A. M’Balé, his successor in
those duties, and the Deputy Minister of Foreign Affairs of the Democratic
Republic of the Congo, in Montreal, on behalf of the said country, did request
the professional services of plaintiff, an architect in Montreal, to carry out
preliminary studies and prepare sketches in relation to the Pavilion which that
country proposed to build at Expo 67.
It is common ground that the term “Expo 67” as used
in the declaration refers to the exhibition defined in s. 2(f) of
the Canadian World Exhibition Corporation Act, 1962-63 (Can.), c. 12, as
follows:
2. (f) Exhibition means the Canadian
Universal and International Exhibition, Montreal, 1967, for which registration
was granted by the Council of the Bureau of International Exhibitions on
November 13, 1962.
Mr. Justice Leduc in the Superior Court and
the three judges who sat on the Court of Appeal, were all of opinion that the
contract in question was entered into by the Congo as a private commercial
transaction and that it did not bear the character of an act of state or an act
done for the public purpose of a foreign sovereign state.
Mr. Justice Leduc expressed his finding in
this regard in the following terms:
[TRANSLATION] WHEREAS the defendant, by
requesting plaintiff’s services through its Chargés d’Affaires, duly accredited
to the governing body of Expo 67, did not perform an act jure imperii (acte
de puissance publique) but an act jure gestionis (acte de gestion d’une
nature privée);
WHEREAS, although the Democratic Republic
of the Congo is a sovereign State, the contractual relations between the
parties were purely of a private nature;…
Accepting the finding that the contractual
relations between the parties were of a purely private nature, Mr. Justice
Owen proceeded to pose the problem as he understood it in the following terms:
The problem raised by this appeal is
whether under conditions existing today our courts will continue to apply the
doctrine or theory of absolute
[Page 1001]
sovereign immunity or whether the time has
come to apply a doctrine or theory of qualified or restrictive sovereign
immunity.
In my opinion we should abandon the
doctrine of absolute sovereign immunity and adopt a theory of restrictive
sovereign immunity.
Stated briefly, the theory of sovereign immunity
recognizes the classical doctrine that a foreign sovereign cannot, without his
consent, be impleaded in the courts of another sovereign state, whereas
according to the theory of restrictive sovereign immunity, which has been
accepted by the United States State Department and consequently by the courts
of that country, the immunity of the foreign sovereign is recognized only with
regard to sovereign or public acts (jure imperii) but not with respect
to private acts (jure gestionis).
It accordingly appears to me, with all respect
for the views of others, that the problem so dramatically posed by
Mr. Justice Owen can only arise in this case if the judges of the Court of
Appeal were right in adopting, without discussion, the finding of the learned
trial judge that when the appellant employed the respondent to prepare sketches
of the national pavilion which it proposed to build at a duly authorized
international exhibition, it was not performing a public act of a sovereign
state but rather one of a purely private nature.
The record indicates that the judges of the
Court of Appeal simply accepted this finding of the trial judge and did not
pause to consider the material upon which it was based. In fact, in his reasons
for judgment, Mr. Justice Leduc disposes of the matter in one paragraph
where he says:
[TRANSLATION] In the circumstances there is
no doubt that this was a private act, since it is a Montreal architect claiming
from defendant, his principal, the minimum payment for his professional
services, as the result of jure gestionis acts (actes de gestion)
performed by the latter’s Chargés d’Affaires, duly accredited not only to the
sovereign power of Canada, but also to the Commissioners General of the 1967
World Exhibition.
As I have indicated, the material before this
Court is in my view, limited to the terms of the
[Page 1002]
respondent’s declaration and the admissions made
on behalf of the parties, all of which is to be read against the background of
the Canadian World Exhibition Corporation Act, supra, which incorporated
the agency created by the Government of Canada for the purposes of planning,
organizing, holding and administering the Canadian Universal and International
Exhibition.
This record discloses nothing more than that the
contract here in question was made in pursuance of the desire of a foreign
sovereign state to construct a national pavilion at an international exhibition
and to be thereby represented at that exhibition which was registered by the
Council of the Bureau of International Exhibitions and which was to be held (in
the words of s. 3(1) of the Canadian World Exhibition Corporation Act,
supra) “in connection with the celebration of the centennial of Confederation
in Canada in a manner in keeping with its national and historical
significance.”
Mr. Justice Leduc, and consequently the
Court of Appeal, adopted the view that the nature of the transaction here at
issue was to be determined entirely on the basis that the respondent was a
Montreal architect claiming against his employer and that the matter was
therefore a purely private one. Considered from the point of view of the
architect, it may well be that the contract was a purely commercial one, but,
even if the theory of restrictive sovereign immunity were applicable, the
question to be determined would not be whether the contractor was engaged in a
private act of commerce, but whether or not the Government of the Congo, acting
as a visiting sovereign state through its duly accredited diplomatic
representatives, was engaged in the performance of a public sovereign act of
state.
I think that it is of particular significance
that the request for the respondent’s services was made not only by the duly
accredited diplomatic representatives of the Congo who were Commissioners
General of the Exhibition, but also by the representative of the Department of
Foreign Affairs of that country. (See declaration, para. 1). This makes it
plain to me that in preparing for the construction of its national pavilion, a
department of the Government of a foreign state, together with its duly
accredited diplomatic representatives,
[Page 1003]
were engaged in the performance of a public
sovereign act of state on behalf of their country and that the employment of
the respondent was a step taken in the performance of that sovereign act. It
therefore follows in my view that the appellant could not be impleaded in the
courts of this country even if the so-called doctrine of restrictive sovereign
immunity had been adopted in our courts, and it is therefore unnecessary for
the determination of this appeal to answer the question posed by
Mr. Justice Owen and so fully considered by the Court of Appeal. In an
area of the law which has been so widely canvassed by legal commentators and
which has been the subject of varying judicial opinions in different countries,
I think it would be undesirable to add further obiter dicta to those
which have already been pronounced and I am accordingly content to rest my
opinion on the ground that the appellant’s employment of the respondent was in
the performance of a sovereign act of state.
There is more than a suggestion in the reasons
for judgment of the Court of Appeal that in determining whether the act of a
foreign sovereign is public or private, the burden of proof lies upon the
sovereign to show that the act was a public one if it is to be granted
sovereign immunity. As I have indicated, there is no dispute as to the facts in
the present case and in my view, to the extent that it may have any bearing on
the determination of this appeal, the question of whether the contract in
question was purely private and commercial or whether it was a public act done
on behalf of a sovereign state for state purposes, is one which should be
decided on the record as a whole without placing the burden of rebutting any
presumption on either party.
Reference was made in the reasons for judgment
of Mr. Justice Owen to the judgment of Mr. Justice Reid in Allan
Construction v. Venezuela, where
the Court was considering a contract for the construction of a pavilion at
“Expo 67” and it was held that as the contract was a purely private and
commercial one, the government of the foreign sovereign state there in question
was subject to the jurisdiction of the Quebec courts.
[Page 1004]
In that case there was ample evidence that the
foreign state in question intended to incorporate in its pavilion a restaurant
with the right to sell alcoholic liquor and to sell the products of Venezuela.
I do not find it necessary for the purpose of the present case to comment on
the conclusion drawn by the learned trial judge from his finding that the
contract was a commercial one; here there is no evidence of a commercial
venture and in the view which I take of the matter I see no basis upon which
the appellant should be required to assume the negative burden of proving that
no commercial undertakings were to be associated with its participation in the
Exhibition.
Although, as I have indicated, I am content to
base my decision on the premise that the appellant’s employment of the
respondent was an act done in the performance of a sovereign act of state, I
think some consideration should be given to the careful and extensive arguments
contained in the reasons for judgment in the Court of Appeal.
In this regard I think it should be pointed out
that, as I have indicated, the decisions in the United States, upon which the
reasons for judgment of Taschereau and Owen JJ. are clearly based, stem from
opinions furnished by the State Department in that country which come to the
courts by way of “letters of suggestion” and which are generally regarded as
authoritative statements of the foreign policy of that country. In one of these
letters, i.e., the Tate Letter, written in 1952 by Professor J.B. Tate who was
then the acting legal adviser to the State Department, it was categorically
stated that “… it will hereafter be the Department’s policy to follow the
restrictive theory of sovereign immunity in the consideration of requests of
foreign governments for a grant of sovereign immunity”. This position appears
to have been generally accepted in the United States courts although they have
some leeway in cases where the State Department refuses to make a suggestion of
immunity, and the Victory Transport case
is cited by Mr. Justice Owen as an example of an independant judicial
acceptance of the theory of restrictive sovereign immunity. It is pointed out,
however, that in that
[Page 1005]
case Mr. Justice Smith, speaking on behalf
of the United States Court of Appeals (second circuit) stated at page 358:
Where, as here, the court has received no
communication from the State Department concerning the immunity of the
Comisaria General, the court must decide for itself whether it is the
established policy of the State Department to recognize claims of immunity of
this type.
It is thus clear that in such cases the question
to be determined in the United States courts is whether it is the established
policy of the State Department to recognize the immunity claimed in any
particular case. As no such question arises in this country, I take the view
that cases concerning sovereign immunity decided in the courts of the United
States in recent years are of little or no authority in Canada.
Although I do not intend to discuss all the
relevant cases which have been decided in this Court and have been so fully
reviewed by Mr. Justice Brossard, I nevertheless think it desirable to
make reference to the case of Saint John et al. v. Fraser-Brace Overseas
Corp., et al. This
was a case involving liability to municipal taxation of property being used on
behalf of the United States Government in the construction of a radar defence
system which had been agreed to by the Governments of Canada and the United
States. The special nature of the joint project was undoubtedly a circumstance
which affected the court’s reasoning but in the course of the very
comprehensive reasons for judgment rendered by Mr. Justice Rand, he made a
number of statements which are of general application. Amongst these is the
following which occurs at page 266:
The general principle of immunity from
legal processes in the broadest sense in what may be called the host country of
public property of a foreign state has been given its authoritative statement
for Canada by Duff C.J. in the Foreign Legations Reference, 1943 S.C.R.
208. There, as here, he was dealing with taxation under general language in
which only the interpretation of the statute was in question. The significant aspect
of the matter examined by him was that of the theory on which the immunity is
to be placed. In the early considerations given it, the idea of
exterritoriality, the physical
[Page 1006]
projection of one sovereignty within the
borders of another, arose probably from one of its earliest examples, that of a
public vessel entering a foreign port. But as new contacts and relations
between states developed, the multiplied situations appearing rendered
necessary a more realistic and flexible conception. On p. 218 of his
reasons, after quoting a passage from Vattel on the immunities of an
ambassador’s residence, which includes the qualification in the application of
the rule, ‘at least in all the ordinary affairs of life’, Duff C.J. observes,
on the latter, that it must be read ‘as excluding the fiction of
exterritoriality in its extreme form’. The notion was, in his view, finally
rejected by the Judicial Committee in Chung Chi Cheung v. The King, 1939
A.C. 160; and reverting to it at p. 230 he repeats: ‘This fiction of
exterritoriality must be disregarded.’
…What is substituted is the conception of
an invitation by the host state to the visiting state. That is the core of what
was laid down by Marshall C.J. in The Schooner Exchange v. M’Faddon et al., (1812)
11 U.S. (7 Cranch) 116, which Duff C.J. adopts. The fundamental attitude which
states adopt towards each other is the recognition and observance of individual
sovereignty, that is, the acknowledgment of the absolute independence of each;
and on this basic footing their intercourse is conducted. When one state admits
within its boundaries a foreign sovereign or his representative, the terms of
that entry are to be gathered from the circumstance of the invitation and its
acceptance. In the language of Marshall C.J. at pp. 139 and 143:
A sovereign committing the interests of his
nation with a foreign power, to the care of a person whom he has selected for
that purpose, cannot intend to subject his minister in any degree to that
power; and, therefore, a consent to receive him, implies a consent that he
shall possess those privileges which his principal intended he should retain…
(The) extent (of the implied consent) must
be regulated by the nature of the case, and the views under which the parties
requiring and conceding it must be supposed to act.
In the absence of something special or
unusual, when a visiting sovereign steps upon the foreign soil he does so free
from any submission to its immanent law; from that he remains insulated; and
the
[Page 1007]
recourse against what may be considered to
be an infringement of the privileges of the invitation becomes a matter for
diplomatic and not legal adjustment. In the language of Marshall C.J. at pp.
138-9, quoted by Duff C.J. at p. 215:
The assent of the sovereign to the very
important and extensive exemptions from territorial jurisdiction which are
admitted to attach to foreign ministers, is implied from the considerations
that, without such exemption, every sovereign would hazard his own dignity by
employing a public minister abroad. His minister would owe temporary and local
allegiance to a foreign prince, and would be less competent to the objects of
his mission. A sovereign committing the interests of his nation with a foreign
power, to the care of a person whom he has selected for that purpose, cannot
intend to subject his minister in any degree to that power; and, therefore, a
consent to receive him, implies a consent that he shall possess those
privileges which his principal intended he should retain—privileges which are
essential to the dignity of his sovereign, and to the duties he is bound to
perform.
On the same page there is a pertinent
quotation from Vattel reinforcing the same view which it is unnecessary to
reproduce.
Freedom from the coercion of the public law
is coextensive with the requirements of the purpose for which the entry is
made. In general, the immunity of a sovereign, his ambassadors, ministers and
their staffs, together with his and their property, extends to all processes of
Courts, all invasions of or interferences with their persons or property, and
all applications of coercive public law brought to bear affirmatively,
including taxation.
The reasons for judgment of Mr. Justice
Rand were expressly endorsed by Mr. Justice Abbott.
Some of the thoughts expressed by
Mr. Justice Rand in the Saint John case supra, find an echo
in the early English decision in The Charkeih, where Sir Robert Phillimore said at
page 97:
The object of international law, in this as
in other matters, is not to work injustice, not to prevent the enforcement of a
just demand, but to substitute negotiations between governments, though they
may be dilatory and the issue distant and uncertain, for the ordinary use of
courts of justice in cases where such use would lessen the dignity or embarrass
the
[Page 1008]
functions of the representatives of a
foreign state;… It is thus apparent that immunity from the jurisdiction of our
courts on the ground of sovereign immunity does not necessarily preclude the
enforcement of a just demand through other channels.
I do not find it necessary in the present case
to consider the statements made by Lord Atkin in Compania Naviera
Vascongardo v. S.S. Cristina and
in Rahimtoola v. Nizam of Hyderabad,
where he expressed the view that sovereign immunity applied in respect of
commercial transactions, because I think the present circumstances are governed
by the decision of this Court in Flota Maritima Browning de Cuba S.A. v.
Republic of Cuba, where
it was said of the ships whose seizure gave rise to the issue before the Court:
All that can be said is that they are
available to be used by the Republic of Cuba for any purpose which its
government may select, and it seems to me that ships which are at the disposal
of a foreign state and are being supervised for the account of a department of
government of that state are to be regarded as ‘public ships of a foreign
state’ at least until such time as some decision is made by the sovereign state
in question as to the use to which they are to be put.
Similarly in the present case, with the greatest
respect for those who hold a different view, I am of opinion that the contract
here sought to be enforced to which the appellant’s diplomatic representative
and one of its departments of government were parties, was a contract made by a
foreign sovereign in the performance of a public act of state and that whatever
view be taken of the doctrine of sovereign immunity, it was a matter in respect
of which the Republic of the Congo cannot be impleaded in our courts. I would
allow this appeal on that ground.
I have proceeded on the assumption that the
record before this Court is limited to the respondent’s declaration and the
admissions made by the parties, but I think I should deal with the contention
advanced on behalf of the respondent
[Page 1009]
that judicial notice should be taken of a
document entitled “Universal and International Exhibition of 1967
Montreal—General Rules and Regulations”. This document was tendered by the
respondent for the first time in this Court and was not mentioned by any of the
judges in the courts below, it does not purport to be issued under the
authority of any statute or order in council, it is undated, unsigned and was
not produced by any witness so that its source is unknown.
The document to which I refer was objected to by
counsel on behalf of the appellant but it is suggested that the force of this
objection is weakened by the fact that the document is referred to in the
appellant’s factum. It is, in my view, important to understand that no act of
counsel can be relied upon as enlarging the category of matters of which this
Court will take judicial notice.
It is suggested, however, that judicial notice
should be taken of the Rules and Regulations in question because mention is
made in s. 4(3) of the Canadian World Exhibition Corporation Act,
supra, of “The General Rules and Regulations of the Exhibition approved on
November 13, 1962 by the Council of the Bureau of International
Exhibitions”. There is, however, no evidence whatever that the Rules and
Regulations now tendered are the ones referred to in the statute and in any
event the reference there made has to do with the by-laws of the Canadian World
Exhibition Corporation and can have no bearing on the matter here at issue.
It is further contended that the Rules and
Regulations in question are in some fashion to be regarded as a treaty on the
ground that “Expo 67” was organized under the umbrella of the constitution
relating to international exhibitions of November 22, 1928 as modified by
protocol on May 10, 1948. I can find no evidence of the Exhibition having been
so organized, (although this may well be the case), but even if the Rules and
Regulations are to be regarded as a treaty, this does not of itself convert
them into material of which this Court can take judicial notice.
Although no reliance was placed by the Court of
Appeal on the argument advanced by the learned trial judge to the effect that
the appellant
[Page 1010]
had submitted to the authority of the Quebec
courts by entering a declinatory exception in accordance with the practice
established in that Province, I think it perhaps desirable to state that I
cannot accept the proposition that a defendant can be taken to have submitted
to the jurisdiction by entering a plea to the effect that it is not subject
thereto, and in any event I see no merit in this argument because of the long
line of cases which establishes that a sovereign state is not to be held to
have submitted to a foreign jurisdiction unless the submission be made in the
face of the court, coupled with a request that such jurisdiction be exercised.
(See Duff Development Company v. Government of Kelantan).
For all these reasons I would allow this appeal,
set aside the judgments of the Court of Appeal and of the Superior Court and
allow the declinatory exception. The respondent’s action is accordingly
dismissed. The appellant will have its costs throughout.
The judgment of Hall and Laskin JJ. was
delivered by
LASKIN J. (dissenting)—This appeal arises
out of a suit by an architect to recover from the Government of The Democratic
Republic of Congo fees for his services. The services were those provided in
the planning of a national pavilion which that country proposed to erect on an
allotted site as a participant in the Universal and International Exhibition
held in Montreal in 1967. Having been impleaded in the Superior Court of
Quebec, Montreal District, the Government challenged the suit by a declinatory
exception which was dismissed by Leduc J., and the dismissal was affirmed
unanimously by the Quebec Court of Appeal.
The interlocutory proceedings thus became the vehicle for the determination of
the basic issues in the litigation, namely, the immunity of the foreign
Government from suit and from the jurisdiction of the Quebec Superior Court.
The reasons upon which Leduc J. and the Quebec
Court of Appeal proceeded were not fully concordant. The former purported to
find, in a
[Page 1011]
formal admission by the foreign Government that
it had accredited its Chargé d’Affaires as its Commissioner General to the
Montreal Exhibition, that the transaction with the architect amounted to a
private law transaction cognizable before the Quebec Superior Court. In taking
this view, Leduc J. accepted what he regarded as an evolved distinction in the
law of sovereign immunity between public acts of a State and acts of a private
character. He also found that invocation by the foreign Government of the
processes of the Quebec Code of Civil Procedure amounted to a submission to the
jurisdiction of the Superior Court. I take this as meaning that there was a
waiver of immunity, assuming it existed, through an attributed consent to be
impleaded.
The Quebec Court of Appeal flatly rejected the
doctrine of absolute sovereign immunity, applied by this court in Dessaulles
v. Republic of Poland, and
declared for a principle of restrictive sovereign immunity in accordance with
developments in the domestic courts of some European countries and consonant
with the executive policy of the United States reflected in the Tate Letter of
1952 (26 U.S. Department of State Bulletin 984). It found leeway to depart from
this court’s judgment in Dessaulles by referring to allegedly contrary
indications in the later judgment in Flota Maritima Browning de Cuba S.A. v.
Republic of Cuba. It
also went on to hold that it was incumbent on the foreign Government in this
case to establish the circumstances in support of its claim of immunity. On the
view of Owen J., this followed from the fact that immunity was a derogation
from the general rule of domestic jurisdiction; and it also followed, in the
view of the court as a whole, from the denial of a rule of absolute immunity.
Since the court was of the opinion that no proof had been offered by the
foreign Government to establish its claim of immunity, it held that the
declinatory exception had been properly dismissed. The court’s position on the
burden of proof arising under a doctrine of restrictive immunity relieved it of
any need to
[Page 1012]
consider the situations in which immunity would
be recognized. Its bare references to public and private acts, and to acts jure
imperii and acts jure gestionis, left those situations at large.
The one issue in this appeal is whether a claim
of immunity, be it on an absolute basis or on a restrictive basis, must be
conceded under the declinatory exception taken by the appellant. Before turning
to that, I wish to dispose of the alternative ground of waiver of immunity
relied on by Leduc J. In my opinion, there is no basis for finding waiver in
the facts relied on by the learned judge. Resort to applicable rules of
procedure for the purpose of asserting immunity and contesting jurisdiction
cannot be converted into a submission to the court’s authority to deal with the
merits. English law has been consistent in holding that waiver and submission
to jurisdiction on the part of a foreign sovereign State must, to be effective,
be made in the face of the court and at the time the court is asked to exercise
its jurisdiction: see Duff Development Co. v. Government of Kelantan; Kahan v. Pakistan Federation; a previous agreement to submit,
although part of a contract sued upon, is not binding upon the foreign
government which may resile from it. Whether or not the time may come when
waiver by contractual agreement will be recognized as effective (as proposed,
for example, by the Restatement (Second), Foreign Relations Law of the United
States (1965), s. 70), the present case may be disposed of on this issue
without relying on the English rule, which is also the prevailing rule in the
United States. There was here no contractual submission, but, from the outset,
a resistance to jurisdiction, subject to the courtesy of an appearance to
contest it.
I begin my consideration of the central point in
this case by noting that we are not concerned here with any claims to property,
tangible or in-
[Page 1013]
tangible, by any foreign State or agency
thereof. Nor are we concerned with the status of any corporate or other body
alleged to be an organ of a foreign State. There is in the present case a
formal admission by the respondent that the Democratic Republic of Congo is a
sovereign State. This determines its status for the purposes of this case
without the necessity of seeking a certificate from the executive. No question
is raised as to service of process, and hence only amenability to jurisdiction
remains.
There is no doubt that there has been a shift in
the positions of the domestic courts of various countries from the doctrine of
absolute immunity, which prevailed through the nineteenth century and into the
twentieth, to a restrictive doctrine. The Tate Letter enumerates the countries
which have departed from the absolute view of immunity, and a recent text-book,
O’Connell, International Law (2nd ed. 1970), p. 844 states that
“the absolute view is not sanctioned by international law” and that “at the
present time only English and perhaps Russian law reflects to any extent the
traditional doctrine”. This text-writer’s assessment does not appear to embrace
Canadian law (or even that of Australia, which is his base) unless he considers
the two countries to be governed by the English rule. For Canada at any rate,
the question is one for this court, subject to any binding Canadian treaty on
the subject.
The restrictive view adopted in the Tate Letter
is, it must be remembered, not a rule of law but a policy guide for the United
States State Department. It has legal effect, however, through the conclusive
force which the courts of the United States give to a suggestion made to the
court by the State Department through the Justice Department that a claim of
immunity be “recognized and allowed”: see Compania Espanola de Navegacion
Maritima S.A. v. The Navemar; Ex
parte Peru. The
practice of a “suggestion” by the executive to the courts goes back to the
judgment of Mar-
[Page 1014]
shall C.J. in The Schooner Exchange v.
M’Faddon. I
am not aware of any such “suggestion” practice in Canada. The executive here
has gone no farther than to certify sovereign status, but, of course, under an
absolute doctrine of immunity that would, in a case like the present one, be
sufficient.
In the United States, the courts have leeway
only where the State Department refuses to make a suggestion of immunity, and
they have both granted and refused immunity in such a situation: see Puente
v. Spanish National State, cert.
denied
(immunity granted in a suit for legal fees on letter from Spanish Ambassador
claiming immunity); Victory Transport Inc. v. Comisaria General de
Abastecimientos y Transportes, cert.
denied
(immunity refused in a suit to compel arbitration where agreed to under
charterparty entered into by arm of foreign government). The Victory
Transport case is apparently the first in which a United States federal
court has unequivocally adopted the restrictive view of immunity, which had
been a State Department policy even before being formalized in the Tate Letter:
see O’Connell, op. cit., supra, at p. 856. There were indications
before the Victory Transport case that the courts of the United States
would accept the restrictive view as the governing one: see National City
Bank of New York v. Republic of China,
and this now seems to be so.
The position in Great Britain is not, or not
yet, clearly in the direction of a restrictive view. The flat assertion of the
absolute view in The Cristina, by
Lord Atkin became a much quoted paragraph in later English and Canadian cases.
However, in Sultan of Johore v. Abubakar, Tunku
[Page 1015]
Aris Bendahara, Viscount Simon said, for the Privy Council, that “Their Lordships do
not consider that there has been finally established in England… any absolute
rule that a foreign independent sovereign cannot be impleaded in our courts in
any circumstances” (at p. 1268). This could well refer, for example, to a
probable qualification in respect of the use of property, or to competing
claims to some chose in action rather than to a case like the present one where
a foreign State is directly impleaded in a contract type of action. It does,
however, leave the general question of immunity open to reconsideration.
The House of Lords returned to the issue of
immunity in Rahimtoola v. Nizam of Hyderabad, which involved a contest between
two claimants, one a former personal sovereign and the other a foreign State,
in respect of a bank account in England. Viscount Simonds, who delivered the
leading judgment, accepted the statement of the absolute view made by Lord
Atkin in The Cristina. Lord Denning apart, the other Law Lords in the
case proceeded on the same view so far as the issue of immunity concerned the
direct impleading of a foreign sovereign or arose out of a claim to property or
a chose in action clearly in the control of the foreign government, albeit not
beneficially owned by it.
Before considering the views of Lord Denning (to
which his colleagues in the case expressly withheld their assent) I wish to
examine the decisions of this court on the question. The absolute immunity of a
foreign sovereign State itself was recognized by Duff C.J. and by Hudson J. in
the course of their reasons in Reference as to Powers to Levy Rates on
Foreign Legations and High Commissioners’ Residences. That doctrine was not, however, in
issue, and none of the other judges in the case dealt with it in any explicit
sense. Similarly, passing references to absolute
[Page 1016]
immunity were made in Reference as to
Exemption of United States Forces from Canadian Criminal Proceedings, as, for example, in the reasons of
Rand J. The first direct consideration of the matter was in Dessaulles v.
Republic of Poland, already referred to.
That case, like the present one, involved a
declinatory exception by the respondent State when it was sued for fees for
legal services and for an accounting. An official of the State had instituted disciplinary
proceedings against the plaintiff before the Bar Council which was joined as
mis-en-cause in his action against Poland. The Quebec Superior Court dismissed
the declinatory exception on the ground that the institution of the
disciplinary proceedings constituted a submission to the jurisdiction. This
view was rejected unanimously by the Quebec Court of Appeal, which sustained the declinatory
exception. On further appeal to this Court, the judgment of the Court of Appeal
was affirmed. In addition to rejecting the contention that there had been a
submission to jurisdiction, the Supreme Court was unanimous on the following
statement of principle:
[TRANSLATION] There is no doubt that a
sovereign state cannot be sued before foreign courts. This principle is founded
upon the independence and dignity of states, and international comity has
always respected it. The Courts have also adopted it as being the domestic law
of all civilized countries.
I make two observations on this statement.
First, it is clear that the absolute doctrine is not today part of the domestic
law “de tous les pays civilisés”. Second, neither the independence nor the
dignity of States, nor international comity require vindication through a
doctrine of absolute immunity. Independence as a support for absolute immunity
is inconsistent with the absolute territorial jurisdiction of the host State;
and dignity, which is a projection of independence or sovereingty, does not
impress when regard is had to the submission of States to suit in their own
courts. The Supreme Court of the United States has exposed the fraily of these
considerations by allowing a counterclaim to be pursued against a
[Page 1017]
sovereign State which invoked the jurisdiction
of a domestic court: see National City Bank of New York v. Republic of
China, supra, at p. 364. Nor is comity any more realistic a foundation
for absolute immunity, unless it be through treaty. It is not correct to say,
as did Lord Wright in The Cristina, supra at p. 502, that
international comity or courtesy has ripened into a general principle of
international law that supports absolute immunity. The former rule of practice
and reciprocity in this respect has been abandoned. I should observe that
another former prop of absolute immunity, that of extraterritoriality, which
was in the main used to exclude domestic jurisdiction over foreign public
ships, has long been recognized as a spent fiction, ruled out in this Court by
Duff C.J. in the Foreign Legations Reference, supra, at
p. 230, following the lead of Lord Atkin in Chung Chi Cheung v. The
King. Rand
J. took the same view in St. John v. Fraser-Brace Overseas Corp.
This last-mentioned case has a relevance in
principle to the present case in the general considerations upon which Rand J.,
with whom Abbott J. agreed in a concurring judgment, proceeded. It had to do
with a claim to immunity from local taxation of (a) personalty, of which the
legal title was in the United States, and (b) leasehold interests, beneficially
owned by that foreign State. All the property was used in the construction of a
radar defence system in Canada, pursuant to an agreement between Canada and the
United States. Although Locke J., with whom Cartwright J. concurred, appeared
to accept the principle of absolute immunity in quoting from The Parlement
Belge, I
do not read the reasons of Rand J. as going that far, albeit the Court was
unanimous in supporting immunity from the proposed local taxation.
Rand J. felt the need to search for “a more
realistic and flexible conception” of immunity
[Page 1018]
than extraterritoriality, and found it in the
conception of “an invitation by the host State to the visiting State”. On the
facts of the case, involving a “visit” for a particular mutual purpose of
protection, it was a reasonable conclusion that public taxing legislation
should not be applied to property used in the joint venture, especially when
“the work carried on by either Government on its own land would be untaxable”.
It is in this context that I read two passages in his reasons that, ex
facie, indicate a fixed immunity so far as court proceedings are concerned.
The two passages are as follows ([1958] S.C.R. 263, at p. 268):
In the absence of something special or
unusual, when a visiting sovereign steps upon the foreign soil he does so free
from any submission to its immanent law; from that he remains insulated; and
the recourse against what may be considered to be an infringement of the
privileges of the invitation becomes a matter for diplomatic and not legal
adjustment.
Freedom from the coercion of the public law
is coextensive with the requirements of the purpose for which the entry is
made. In general, the immunity of a sovereign, his ambassadors, ministers and
their staffs, together with his and their property, extends to all processes of
Courts, all invasions of or interferences with their persons or property, and
all applications of coercive public law brought to bear affirmatively,
including taxation.
These passages are immediately followed by
others which seem to me to support the limited view I take of what I have
quoted. Further, what Rand J. says in those following passages points up, in my
view, the fact that time and events have removed the underpinnings of the
judgment of this court in Dessaulles. He puts the matter in this way (at
pp. 268-269):
It is obvious that the life of every state
is, under the swift transformations of these days, becoming deeply implicated
with that of the others in a de facto society of nations. If in 1767
Lord Mansfield, as in Heathfield v. Chilton, (1767), 4 Burr. 2015, 98
E.R. 50, could say, “The law of nations will be carried as far in England, as
any where”, in this country, in the 20th century, in the presence of the
[Page 1019]
United Nations and the multiplicity of
impacts with which technical developments have entwined the entire globe, we
cannot say anything less.
In the language of Sir Alexander Cockburn
quoted by Lord Atkin in Chung Chi Cheung, ([1939] A.C. 160. at
p. 172) in the absence of precise precedent we must seek the rule which
“reason and good sense… would prescribe”. In this we are not to disregard the
practical consideration, if not the necessity, of that “general assent and
reciprocity”, of which Lord Macmillan speaks in Compania Naviera Vascongardo
v. The “Cristina” et al, [1938] A.C. 485 at 497,… But to say that precedent
is now required for every proposed application to matter which differs only in
accidentals, that new concrete instances must be left to legislation or
convention, would be a virtual repudiation of the concept of inherent
adaptability which has maintained the life of the common law, and a retrograde
step in evolving the rules of international intercourse. However slowly and
meticulously they are to be fashioned they must be permitted to meet the necessities
of increasing international involvements. It is the essence of the principle of
precedent that new applications are to be determined according to their total
elements including assumptions and attitudes, and in the international sphere
the whole field of the behaviour of states, whether exhibited in actual
conduct, conventions, arbitrations or adjudications, is pertinent to the
determination of each issue.
This court did not embark upon any general
inquiry into immunity in the Flota Maritima case, supra; and if
the Quebec Court of Appeal found any support there for its enunciation of a
doctrine of restrictive immunity, it must have been only in that part of the
judgment of Ritchie J., speaking for the majority of the Court, in which he
reserved opinion on immunity in respect of property of a foreign State used
only for commercial purposes. The same reservation was made by Locke J.,
although he adopted the absolute view of immunity expressed by Lord Atkin in The
Cristina, supra. Ritchie J. quoted the same sentences from The Cristina,
but without indicating his approval thereof.
I refer now to Lord Denning’s canvass of general
principle in the Rahimtoola case. It will suffice to quote one passage,
a summarizing one,
[Page 1020]
which, to put it briefly, would substitute
function for status as the determinant of immunity; it is in these words:
…it seems to me that at the present time
sovereign immunity should not depend on whether a foreign government is
impleaded, directly or indirectly, but rather on the nature of the dispute. Not
on whether “conflicting rights have to be decided,” but on the nature of the
conflict. Is it properly cognizable by our courts or not? If the dispute brings
into question, for instance, the legislative or international transactions of a
foreign government, or the policy of its executive, the court should grant
immunity if asked to do so, because it does offend the dignity of a foreign
sovereign to have the merits of such a dispute canvassed in the domestic courts
of another country: but if the dispute concerns, for instance, the commercial
transactions of a foreign government (whether carried on by its own departments
or agencies or by setting up separate legal entities), and it arises properly
within the territorial jurisdiction of our courts, there is no ground for
granting immunity.
The considerations which, in my view, make it
preferable to consider immunity from the standpoint of function rather than
status do not rest simply on a rejection of the factors which had formerly been
said to underlie it. Affirmatively, there is the simple matter of justice to a
plaintiff; there is the reasonableness of recognizing equal accessibility to
domestic courts by those engaged in transnational activities, although one of
the parties to a transaction may be a foreign State or an agency thereof; there
is the promotion of international legal order by making certain disputes which
involve a foreign State amenable to judicial processes, even though they be
domestic; and, of course, the expansion of the range of activities and services
in which the various States today are engaged has blurred the distinction
between governmental and non-governmental functions or acts (or between
so-called public and private domains of activity), so as to make it unjust to
rely on status alone to determine immunity from the consequences of State
action.
A shift from status to function means, of
course, the substitution of a loose formula for a precise one, but it is
dictated by factors and conditions
[Page 1021]
which have impressive support from scholars as
well as judges, and also in the practice of States as reflected in the
restrictive doctrine adopted by their domestic courts and as reflected as well
in the negotiation of treaties providing for waiver of immunity, as, for
example, in commercial matters: see Sucharitkul, State Immunities and
Trading Activities in International Law (1959); Falk, The Role of
Domestic Courts in the International Legal Order (1964), Chap. VII; Hendry, Sovereign
Immunities from the Jurisdiction of the Courts, (1958) 36 Can. Bar Rev. 145; Simmonds,
The Limits of Sovereign Jurisdictional Immunity, (1965) 11 McGill L.J. 291;
Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States,
(1951) 28 Brit. Y.B. Int’l.L. 220; Comment, The Jurisdictional Immunity
of Foreign Sovereigns (1954), 63 Yale L.J. 1148.
I note the general terms in which Lord Denning
illustrated those classes of functions to which immunity should continue to
attach. Another classification was proposed by the United States Court of
Appeals for the Second Circuit in its reasons for judgment in the Victory
Transport case, supra; it is as follows (at p. 360 of 336
F.2d):
…we are disposed to deny a claim of
sovereign immunity that has not been “recognized and allowed” by the State
Department unless it is plain that the activity in question falls within one of
the categories of strictly political or public acts about which sovereigns have
traditionally been quite sensitive. Such acts are generally limited to the
following categories:
(1) internal administrative acts, such as
expulsion of an alien.
(2) legislative acts, such as
nationalization.
(3) acts concerning the armed forces.
(4) acts concerning diplomatic activity.
(5) public loans.
We do not think that the restrictive theory
adopted by the State Department requires sacrificing the interests of private
litigants to international comity in other than these limited categories.
Should diplomacy require enlargement of these categories, the
[Page 1022]
State Department can file a suggestion of
immunity with the court. Should diplomacy require contraction of these
categories, the State Department can issue a new or clarifying policy
pronouncement.
The need for distinctions “to render unto Caesar
the things that are Caesar’s” is obvious, and the two proposed classifications
are useful aids. I resist the temptation in this case to add a classification
of my own of activities in respect of which immunity should continue to attach;
and the more so because the issue of initial jurisdiction raised by the
declinatory exception, if it be taken to comprehend immunity on a restrictive
basis, requires a conclusion only on whether the transaction in this case is so
clearly within the claim of immunity as to make any further inquiry superfluous.
For this purpose, I turn to the particular facts out of which the present
litigation has arisen, so far as they can be gleaned from a rather sparse
record and relevant legislation.
Montreal Expo, to give the Exhibition its
popular name, was organized under the umbrella of the Convention relating to
International Exhibitions of November 22, 1928, as modified by a Protocol of
May 10, 1948, to which Canada is a party. Article 5 provides that the host
country must address invitations for participation by foreign countries through
the diplomatic channel. Prior to this, it must have applied to the
international authority, constituted by the Convention, to register the
Exhibition, and it must contemporaneously have filed certain information and
documents, including copies of the general regulations that will be operative.
Canada fulfilled these requirements, found in Article 8 of the Convention,
and established an administration for Expo under the Canadian World
Exhibition Corporation Act, 1962-63 (Can.), c. 12. This Special Act
provided for a board of directors of the Corporation (in whose appointment the
Governments of Canada and of Quebec shared) under a responsible federal
Minister.
Certain provisions of the federal statute are
especially relevant to the issue in this case. Subject to an exception that is
immaterial here, the Corpo-
[Page 1023]
ration was declared, by s. 7(1) to be for
all purposes of the Act an agent of the Crown. Section 7(4) was as follows:
Actions, suits or other legal proceedings
in respect of any right or obligation acquired or incurred by the Corporation
on behalf of Her Majesty, whether in its name or in the name of Her Majesty,
may be brought or taken by or against the Corporation in the name of the
Corporation in any court that would have jurisdiction if the Corporation were
not an agent of Her Majesty.
Among the powers of the Corporation, set out in
s. 9, were the acquisition of property for the construction, maintenance
and operation of the Exhibition, and the making of construction contracts;
these powers were, however, qualified by limitations on the amounts of
expenditures on any contract or any property acquisition unless the approval of
the Government of Canada was obtained for exceeding the limitations. A key
provision was s. 10, obliging the Corporation to secure the approval of
the Governments of Canada and of Quebec of its overall plan for the Exhibition.
I note that the Act defines “Exhibition” in
s. 2 (f) to mean “the Canadian Universal and International
Exhibition, Montreal 1967, for which registration was accorded by the Council
of the Bureau of International Exhibitions on November 13, 1962”. My reason for
drawing attention to this definition is to give context to a document produced
at the hearing in this court, entitled “General Rules and Regulations, The
Universal and International Exhibition of 1967, Montreal (Quebec, Canada)”. I
take this to be the document of general regulations filed with the
international authority, pursuant to Article 8 of the Convention relating to
International Exhibitions.
Objection to its production in this Court was
taken by the appellant foreign Government. It was entitled to take this
objection in so far as the document was tendered to form part of the record.
Although it may be arguable that judicial notice should be taken of the general
rules and regulations, as being incorporated into the treaty and statutory
regime under which Expo was organized and conducted, it would be taking the
[Page 1024]
parties by surprise to apply them, whether in
their factual or legal bearing on the question of immunity, without giving the
parties previous notice so as to enable them to make representations on the
relevancy and effect of the general rules and regulations.
Notwithstanding the objection to production of
the general rules and regulations, counsel for the appellant in the Factum
filed on the appeal to this Court referred to them in submitting that Congo’s
participation was for a “public purpose”. I quote from p. 19 of the
Factum:
We respectfully submit that the Congo
participated in Expo 67, pursuant to an invitation from the Government of
Canada, through diplomatic channels, for the purposes and objects cited in the
Paris Convention and in the general rules and regulations of the Exhibition.
The Congo’s pursuit of the purposes and objects of Expo 67 to “endeavour to
attain unity among men”, and “to show the spiritual and material aspirations of
the world”, certainly constitutes involvement by a Sovereign state in public
purposes in the traditional sense.
Counsel for the respondent had an opposite
purpose in view in offering the document. It appears therefore that both
parties considered it relevant to the issue of immunity on a restrictive basis,
and this issue cannot be resolved on the record that is now before this Court.
That record consists only of the declaration or claim, the declinatory
exception, and two formal admissions to which reference has already been made.
If the immunity claimed herein is to be tested on a restrictive basis, as I
think it should be, there is, in my opinion, not enough in the record upon
which a ready affirmation of immunity can be founded. The case must certainly
proceed further for the claim to immunity to be determined.
In viewing the matter from the standpoint of an
issue of restrictive immunity, I have taken a broader view of the declinatory
exception than its terms, strictly speaking, justify. As set out in the Case in
Appeal, the declinatory exception is a peremptory assertion of immunity as a
sovereign State. There is nothing in the exception as framed to indicate any
claim to immunity based on a restrictive theory. Such a claim might have been
open if Congo had invoked art. 165 C.C.P.
[Page 1025]
rather than art. 163 and 164. Had it done
so, it would be conceding jurisdiction in the Superior Court to determine
whether it was entitled to immunity under a restrictive theory. However, by
reason of the way in which Congo proceeded and of the stand it took, this Court
is faced, as were the courts below, with an unqualified contention that a
sovereign State cannot as such be impleaded regardless of the activity in which
it is engaged and out of which a suit against it is brought in a foreign
domestic court.
To allow the declinatory exception is thus to
reaffirm the doctrine of absolute immunity. I have made plain my opinion that
the doctrine is spent. If so, it would be wrong to revive it on any view of a
deficiency of evidence to overcome any suggested presumption that when a
sovereign State acts through an accredited diplomatic representative any
ensuing transaction with a private person is for a so-called public purpose. At
this stage of the action there is no question of requiring evidence from the
plaintiff or from Congo to negate or establish immunity on a restrictive basis.
That comes later. Hence, I need not now be concerned with fixing any burden of
proof. The only question is whether the action should be throttled at its
inception or whether it should be allowed to proceed. Since, in my view,
jurisdiction which is invoked as here cannot be effectively repudiated ab
initio on the basis of unqualified immunity, I am of opinion that the
action should proceed.
I am fortified in this opinion on my view that
even if the declinatory exception is read to claim immunity on a restrictive
basis (as the appellant urged alternatively in its Factum and in argument),
there is no factual basis on which it can be allowed at this stage of the
action.
I would dismiss the appeal with costs.
Appeal allowed with costs, HALL AND LASKIN J.J. dissenting.
Solicitor for the appellant: B.
Vizkelety, Montreal.
Solicitor for the respondent: R.
Beaulé, Montreal.
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