Court rejects damages
for stigma of dismissal
PAGE 9
GREY POWER
PAGE 14
CRISTIN SCHMITZ OTTAWA
SCC limits
scope of
state
immunity
The Supreme Court has clarified when a foreign country’s
actions are deemed to be “
commercial”—and hence not protected by state immunity—in a
decision which opens the door to
the recognition in Canada of an
English court’s $84million costs
judgment against Iraq.
On Oct. 21, nine judges unanimously allowed the appeal of
Kuwait Airways Corp. (KAC)
against decisions of the Quebec
courts below which permitted
Iraq to claim immunity from the
courts’ jurisdiction under the federal State Immunity Act (SIA).
The top court ruled that Iraq
could not rely on its general state
immunity under s. 3 of the SIA
because the Islamic republic’s
cost-sanctioned actions were of
a commercial nature (rather
than sovereign acts) during a
long-running English court proceeding launched against Iraq’s
national airline by KAC.
Iraq appropriated hundreds of
millions of dollars’ worth of KAC’s
air craft, equipment and parts
inventory when it invaded Kuwait
during the Gulf War in 1990.
Section 5 of the SIA stipulates
that a foreign state is not
immune from a Canadian court’s
jurisdiction “in any proceedings
that relate to any commercial
activity of the foreign state.”
The Supreme Court affirmed
for the first time that foreign
countries can put forward a state
immunity defence to applica-
tions for the recognition of for-
eign judgments in Canada.
At the same time, the High
Court rejected the apparent suggestion of the Quebec Court of
Appeal that there is a category of
commercial acts which are protected by state immunity, even
See Iraq Page 27
Age-related worker’s
comp reduction
gets thumbs-down
William Brock represented The Globe and Mail in a landmark media law decision on protecting confidential sources.
Critics worry the decision may make it difficult to protect solicitor-client secrets leaked to the media.
WASSIM NJEIM FOR THE LAWYERS WEEKLY
See story on page 2
DEPARTING LAWYERS
LUIS MILLAN MONTREAL “ It’s all very well that
the rules of practice
have been simplified,
but the Quebec Code
of Civil Procedure
was made for
lawyers, not the
typical person.
Judges grapple with unrepresented litigants
The surging number of
unrepresented litigants trying to
navigate the complex demands
of law and procedure may leave
legislators with little choice but
to review and enact simplified
rules of practice to make justice
more accessible, said the chief
justice of Quebec’s Superior
Court at a conference examining
the disturbing trend.
The figures are alarming,
with an average of 37 per cent of
parties representing themselves
in civil matters before Quebec
Superior Court, revealed Judge
François Rolland. In divorce
cases before Quebec Superior
Court, 36 per cent of Quebecers
are unrepresented litigants, a
figure that rises to 42.1 per cent
in family matters dealing with
child custody and separation.
Almost 42 per cent of parties
appealing a sentence in crim-
inal matters before Quebec
Superior Court are unrepre-
sented litigants while 38.8 per
cent of individuals facing a
motion that could authorize
their psychiatric treatment do
not have legal representation,
prompting Justice Rolland to
remark that if anybody “should
be represented it seems to me
it’s the treatment cases.”
The Court of Quebec, a court
of first instance that has jurisdic-
tion in civil, criminal and penal
matters as well as in matters
relating to youth, does not fare
any better. Approximately 38 per
cent of individuals who have a
matter pending before its civil
division appear in court without
a lawyer. Even the Supreme
Court of Canada cannot dodge
the trend. Approximately 30 per
cent of requests to file an appli-
cation for leave to appeal are
lodged by unrepresented liti-
gants, noted Justice Rolland.
Leaving a firm gracefully
PAGE 22
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