Law:State Immunity Act

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R.s.c., 1985, c. S-18

An Act to provide for state immunity in Canadian courts


Contents

Short Title

Short title

1. This Act may be cited as the State Immunity Act.

1980-81-82-83, c. 95, s. 1.


Interpretation

Definitions

2. In this Act,

“agency of a foreign state”

« organisme d’un État étranger »

“agency of a foreign state” means any legal entity that is an organ of the foreign state but that is separate from the foreign state;

“commercial activity”

« activité commerciale »

“commercial activity” means any particular transaction, act or conduct or any regular course of conduct that by reason of its nature is of a commercial character;

“foreign state”

« État étranger »

“foreign state” includes

(a) any sovereign or other head of the foreign state or of any political subdivision of the foreign state while acting as such in a public capacity,

(b) any government of the foreign state or of any political subdivision of the foreign state, including any of its departments, and any agency of the foreign state, and

(c) any political subdivision of the foreign state;

“political subdivision”

« subdivision politique »

“political subdivision” means a province, state or other like political subdivision of a foreign state that is a federal state.

1980-81-82-83, c. 95, s. 2.


State Immunity

State immunity

3. (1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.

Court to give effect to immunity

(2) In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subsection (1) notwithstanding that the state has failed to take any step in the proceedings.

1980-81-82-83, c. 95, s. 3.

Immunity waived

4. (1) A foreign state is not immune from the jurisdiction of a court if the state waives the immunity conferred by subsection 3(1) by submitting to the jurisdiction of the court in accordance with subsection (2) or (4).

State submits to jurisdiction

(2) In any proceedings before a court, a foreign state submits to the jurisdiction of the court where it

(a) explicitly submits to the jurisdiction of the court by written agreement or otherwise either before or after the proceedings commence;

(b) initiates the proceedings in the court; or

(c) intervenes or takes any step in the proceedings before the court.

Exception

(3) Paragraph (2)(c) does not apply to

(a) any intervention or step taken by a foreign state in proceedings before a court for the purpose of claiming immunity from the jurisdiction of the court; or

(b) any step taken by a foreign state in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained before the step was taken and immunity is claimed as soon as reasonably practicable after they are ascertained.

Third party proceedings and counter-claims

(4) A foreign state that initiates proceedings in a court or that intervenes or takes any step in proceedings before a court, other than an intervention or step to which paragraph (2)(c) does not apply, submits to the jurisdiction of the court in respect of any third party proceedings that arise, or counter-claim that arises, out of the subject-matter of the proceedings initiated by the state or in which the state has so intervened or taken a step.

Appeal and review

(5) Where, in any proceedings before a court, a foreign state submits to the jurisdiction of the court in accordance with subsection (2) or (4), that submission is deemed to be a submission by the state to the jurisdiction of such one or more courts by which those proceedings may, in whole or in part, subsequently be considered on appeal or in the exercise of supervisory jurisdiction.

1980-81-82-83, c. 95, s. 4.

Commercial activity

5. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.

1980-81-82-83, c. 95, s. 5.

Death and property damage

6. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to

(a) any death or personal or bodily injury, or

(b) any damage to or loss of property

that occurs in Canada.

R.S., 1985, c. S-18, s. 6; 2001, c. 4, s. 121.

Maritime law

7. (1) A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to

(a) an action in rem against a ship owned or operated by the state, or

(b) an action in personam for enforcing a claim in connection with a ship owned or operated by the state,

if, at the time the claim arose or the proceedings were commenced, the ship was being used or was intended for use in a commercial activity.

Cargo

(2) A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to

(a) an action in rem against any cargo owned by the state if, at the time the claim arose or the proceedings were commenced, the cargo and the ship carrying the cargo were being used or were intended for use in a commercial activity; or

(b) an action in personam for enforcing a claim in connection with any cargo owned by the state if, at the time the claim arose or the proceedings were commenced, the ship carrying the cargo was being used or was intended for use in a commercial activity.

Idem

(3) For the purposes of subsections (1) and (2), a ship or cargo owned by a foreign state includes any ship or cargo in the possession or control of the state and any ship or cargo in which the state claims an interest.

1980-81-82-83, c. 95, s. 7.

Property in Canada

8. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to an interest or, in the Province of Quebec, a right of the state in property that arises by way of succession, gift orbona vacantia.

R.S., 1985, c. S-18, s. 8; 2004, c. 25, s. 172.

Previous Version

Procedure And Relief

Service on a foreign state

9. (1) Service of an originating document on a foreign state, other than on an agency of the foreign state, may be made

(a) in any manner agreed on by the state;

(b) in accordance with any international Convention to which the state is a party; or

(c) in the manner provided in subsection (2).

Idem

(2) For the purposes of paragraph (1)(c), anyone wishing to serve an originating document on a foreign state may deliver a copy of the document, in person or by registered mail, to the Deputy Minister of Foreign Affairs or a person designated by him for the purpose, who shall transmit it to the foreign state.

Service on an agency of a foreign state

(3) Service of an originating document on an agency of a foreign state may be made

(a) in any manner agreed on by the agency;

(b) in accordance with any international Convention applicable to the agency; or

(c) in accordance with any applicable rules of court.

Idem

(4) Where service on an agency of a foreign state cannot be made under subsection (3), a court may, by order, direct how service is to be made.

Date of service

(5) Where service of an originating document is made in the manner provided in subsection (2), service of the document shall be deemed to have been made on the day that the Deputy Minister of Foreign Affairs or a person designated by him pursuant to subsection (2) certifies to the relevant court that the copy of the document has been transmitted to the foreign state.

R.S., 1985, c. S-18, s. 9; 1995, c. 5, s. 27.

Default judgment

10. (1) Where, in any proceedings in a court, service of an originating document has been made on a foreign state in accordance with subsection 9(1), (3) or (4) and the state has failed to take, within the time limited therefor by the rules of the court or otherwise by law, the initial step required of a defendant or respondent in those proceedings in that court, no further step toward judgment may be taken in the proceedings except after the expiration of at least sixty days following the date of service of the originating document.

Idem

(2) Where judgment is signed against a foreign state in any proceedings in which the state has failed to take the initial step referred to in subsection (1), a certified copy of the judgment shall be served on the foreign state

(a) where service of the document that originated the proceedings was made on an agency of the foreign state, in such manner as is ordered by the court; or

(b) in any other case, in the manner specified in paragraph 9(1)(c) as though the judgment were an originating document.

Idem

(3) Where, by reason of subsection (2), a certified copy of a judgment is required to be served in the manner specified in paragraph 9(1)(c), subsections 9(2) and (5) apply with such modifications as the circumstances require.

Application to set aside or revoke default judgment

(4) A foreign state may, within sixty days after service on it of a certified copy of a judgment under subsection (2), apply to have the judgment set aside or revoked.

R.S., 1985, c. S-18, s. 10; 2004, c. 25, s. 173.

Previous VersionNo injunction, specific performance, etc., without consent

11. (1) Subject to subsection (3), no relief by way of an injunction, specific performance or the recovery of land or other property may be granted against a foreign state unless the state consents in writing to that relief and, where the state so consents, the relief granted shall not be greater than that consented to by the state.

Submission not consent

(2) Submission by a foreign state to the jurisdiction of a court is not consent for the purposes of subsection (1).

Agency of a foreign state

(3) This section does not apply to an agency of a foreign state.

1980-81-82-83, c. 95, s. 10.

Execution

12. (1) Subject to subsections (2) and (3), property of a foreign state that is located in Canada is immune from attachment and execution and, in the case of an action in rem, from arrest, detention, seizure and forfeiture except where

(a) the state has, either explicitly or by implication, waived its immunity from attachment, execution, arrest, detention, seizure or forfeiture, unless the foreign state has withdrawn the waiver of immunity in accordance with any term thereof that permits such withdrawal;

(b) the property is used or is intended for a commercial activity; or

(c) the execution relates to a judgment establishing rights in property that has been acquired by succession or gift or in immovable property located in Canada.

Property of an agency of a foreign state is not immune

(2) Subject to subsection (3), property of an agency of a foreign state is not immune from attachment and execution and, in the case of an action in rem, from arrest, detention, seizure and forfeiture, for the purpose of satisfying a judgment of a court in any proceedings in respect of which the agency is not immune from the jurisdiction of the court by reason of any provision of this Act.

Military property

(3) Property of a foreign state

(a) that is used or is intended to be used in connection with a military activity, and

(b) that is military in nature or is under the control of a military authority or defence agency

is immune from attachment and execution and, in the case of an action in rem, from arrest, detention, seizure and forfeiture.

Property of a foreign central bank immune

(4) Subject to subsection (5), property of a foreign central bank or monetary authority that is held for its own account and is not used or intended for a commercial activity is immune from attachment and execution.

Waiver of immunity

(5) The immunity conferred on property of a foreign central bank or monetary authority by subsection (4) does not apply where the bank, authority or its parent foreign government has explicitly waived the immunity, unless the bank, authority or government has withdrawn the waiver of immunity in accordance with any term thereof that permits such withdrawal.

1980-81-82-83, c. 95, s. 11.

No fine for failure to produce

13. (1) No penalty or fine may be imposed by a court against a foreign state for any failure or refusal by the state to produce any document or other information in the course of proceedings before the court.

Agency of a foreign state

(2) Subsection (1) does not apply to an agency of a foreign state.

1980-81-82-83, c. 95, s. 12.


General

Certificate is conclusive evidence

14. (1) A certificate issued by the Minister of Foreign Affairs, or on his behalf by a person authorized by him, with respect to any of the following questions, namely,

(a) whether a country is a foreign state for the purposes of this Act,

(b) whether a particular area or territory of a foreign state is a political subdivision of that state, or

(c) whether a person or persons are to be regarded as the head or government of a foreign state or of a political subdivision of the foreign state,

is admissible in evidence as conclusive proof of any matter stated in the certificate with respect to that question, without proof of the signature of the Minister of Foreign Affairs or other person or of that other person’s authorization by the Minister of Foreign Affairs.

Idem

(2) A certificate issued by the Deputy Minister of Foreign Affairs, or on his behalf by a person designated by him pursuant to subsection 9(2), with respect to service of an originating or other document on a foreign state in accordance with that subsection is admissible in evidence as conclusive proof of any matter stated in the certificate with respect to that service, without proof of the signature of the Deputy Minister of Foreign Affairs or other person or of that other person’s authorization by the Deputy Minister of Foreign Affairs.

R.S., 1985, c. S-18, s. 14; 1995, c. 5, ss. 25, 27.

Governor in Council may restrict immunity by order

15. The Governor in Council may, on the recommendation of the Minister of Foreign Affairs, by order restrict any immunity or privileges under this Act in relation to a foreign state where, in the opinion of the Governor in Council, the immunity or privileges exceed those accorded by the law of that state.

R.S., 1985, c. S-18, s. 15; 1995, c. 5, s. 25.

Inconsistency

16. If, in any proceeding or other matter to which a provision of this Act and a provision of the Extradition Act, the Visiting Forces Act or the Foreign Missions and International Organizations Act apply, there is a conflict between those provisions, the provision of this Act does not apply in the proceeding or other matter to the extent of the conflict.

R.S., 1985, c. S-18, s. 16; 1991, c. 41, s. 13; 2000, c. 24, s. 70.

Rules of court not affected

17. Except to the extent required to give effect to this Act, nothing in this Act shall be construed or applied so as to negate or affect any rules of a court, including rules of a court relating to service of a document out of the jurisdiction of the court.

1980-81-82-83, c. 95, s. 16.

Application

18. This Act does not apply to criminal proceedings or proceedings in the nature of criminal proceedings.

1980-81-82-83, c. 95, s. 17.


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