State Immunity Act

An Act to provide for state immunity in Canadian courts Short title This Act may be cited as the State Immunity Act. Definitions In this Act, 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; (organisme d’un État étranger) 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; (activité commerciale) foreign state includes 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, 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 any political subdivision of the foreign state; (État étranger) political subdivision means a province, state or other like political subdivision of a foreign state that is a federal state. (subdivision politique) terrorist activity in respect of a foreign state has the same meaning as in subsection 83.01(1) of the Criminal Code, provided that a foreign state set out on the list referred to in subsection 6.1(2) does the act or omission on or after January 1, 1985. (activité terroriste) Meaning of supports terrorism For the purposes of this Act, a foreign state supports terrorism if it commits, for the benefit of or otherwise in relation to a listed entity as defined in subsection 83.01(1) of the Criminal Code, an act or omission that is, or had it been committed in Canada would be, punishable under any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code. State immunity 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 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. Immunity waived 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 In any proceedings before a court, a foreign state submits to the jurisdiction of the court where it explicitly submits to the jurisdiction of the court by written agreement or otherwise either before or after the proceedings commence; initiates the proceedings in the court; or intervenes or takes any step in the proceedings before the court. Exception Paragraph (2)(c) does not apply to 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 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 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 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. Commercial activity 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. Death and property damage A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any death or personal or bodily injury, or any damage to or loss of property that occurs in Canada. Support of terrorism A foreign state that is set out on the list referred to in subsection (2) is not immune from the jurisdiction of a court in proceedings against it for its support of terrorism on or after January 1, 1985. List of foreign states The Governor in Council may, by order, establish a list on which the Governor in Council may, at any time, set out the name of a foreign state if, on the recommendation of the Minister of Foreign Affairs made after consulting with the Minister of Public Safety and Emergency Preparedness, the Governor in Council is satisfied that there are reasonable grounds to believe that the foreign state supported or supports terrorism. Establishment of list The list must be established no later than six months after the day on which this section comes into force. Application to be removed from list On application in writing by a foreign state, the Minister of Foreign Affairs must, after consulting with the Minister of Public Safety and Emergency Preparedness, decide whether there are reasonable grounds to recommend to the Governor in Council that the applicant no longer be set out on the list. Notice of decision to applicant The Minister of Foreign Affairs must without delay give notice to the applicant of that Minister’s decision respecting the application. New application A foreign state set out on the list may not make another application under subsection (4), unless there has been a material change in its circumstances since the foreign state made its last application or the Minister of Foreign Affairs has completed the review under subsection (7). Review of list Two years after the establishment of the list, and every two years after that, the Minister of Foreign Affairs must review the list in consultation with the Minister of Public Safety and Emergency Preparedness to determine whether there are still reasonable grounds, as set out in subsection (2), for a foreign state to be set out on the list and make a recommendation to the Governor in Council as to whether the foreign state should remain set out on the list; and review the list in consultation with the Minister of Public Safety and Emergency Preparedness to determine whether there are reasonable grounds, as set out in subsection (2), for a foreign state that is not set out on the list to be set out on the list and make a recommendation to the Governor in Council as to whether the foreign state should be set out on the list. Effect of review The review does not affect the validity of the list. Completion of review The Minister of Foreign Affairs must complete the review as soon as feasible, but in any case within 120 days, after its commencement. After completing the review, that Minister must without delay cause a notice to be published in the Canada Gazette that it has been completed. Effect of removal from list on proceedings If proceedings for support of terrorism are commenced against a foreign state that is set out on the list, the subsequent removal of the foreign state from the list does not have the effect of restoring the state’s immunity from the jurisdiction of a court in respect of those proceedings or any related appeal or enforcement proceedings. Terrorist activity Where a court of competent jurisdiction has determined that a foreign state, set out on the list in subsection (2), has supported terrorism, that foreign state is also not immune from the jurisdiction of a court in proceedings against it that relate to terrorist activity by the state. Maritime law an action in rem against a ship owned or operated by the state, or 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 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 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 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. Property in Canada 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 or bona vacantia. Service on a foreign state Service of an originating document on a foreign state, other than on an agency of the foreign state, may be made in any manner agreed on by the state; in accordance with any international Convention to which the state is a party; or in the manner provided in subsection (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 Service of an originating document on an agency of a foreign state may be made in any manner agreed on by the agency; in accordance with any international Convention applicable to the agency; or in accordance with any applicable rules of court. 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 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. Default judgment 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. 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 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 in any other case, in the manner specified in paragraph 9(1)(c) as though the judgment were an originating document. 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 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. No injunction, specific performance, etc., without consent 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 Submission by a foreign state to the jurisdiction of a court is not consent for the purposes of subsection (1). This section does not apply either to an agency of a foreign state or to a foreign state that is set out on the list referred to in subsection 6.1(2) in respect of an action brought against that foreign state for its support of terrorism or its terrorist activity. Execution 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 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; the property is used or is intended to be used for a commercial activity or, if the foreign state is set out on the list referred to in subsection 6.1(2), is used or is intended to be used by it to support terrorism or engage in terrorist activity; 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, or the foreign state is set out on the list referred to in subsection 6.1(2) and the attachment or execution relates to a judgment rendered in an action brought against it for its support of terrorism or its terrorist activity and to property other than property that has cultural or historical value. Property of an agency of a foreign state is not immune 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 Property of a foreign state that is used or is intended to be used in connection with a military activity, and 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 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 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. Assistance for judgment creditors At the request of any party in whose favour a judgment is rendered against a foreign state in proceedings referred to in section 6.1, the Minister of Finance or the Minister of Foreign Affairs may, within the confines of his or her mandate, assist, to the extent that is reasonably practical, any judgment creditor in identifying and locating the following property, unless the Minister of Foreign Affairs believes that to do so would be injurious to Canada’s international relations or either Minister believes that to do so would be injurious to Canada’s other interests: in the case of the Minister of Finance, the financial assets of the foreign state that are held within Canadian jurisdiction; and in the case of the Minister of Foreign Affairs, the property of the foreign state that is situated in Canada. Disclosure of information In exercising the power referred to in subsection (1), the Minister of Finance or the Minister of Foreign Affairs, as the case may be, may not disclose information that was produced in or for a government institution, without the authorization of the government institution; and information produced in circumstances other than those referred to in paragraph (a), without the authorization of the government institution that first received the information. Definition of government institution In subsection (2), government institution means any department, branch, office, board, agency, commission, corporation or other body for the administration or affairs of which a minister is accountable to Parliament. No fine for failure to produce 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. Subsection (1) does not apply either to an agency of a foreign state or to a foreign state that is set out on the list referred to in subsection 6.1(2) in respect of an action brought against that foreign state for its support of terrorism or its terrorist activity. Certificate is conclusive evidence 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, whether a country is a foreign state for the purposes of this Act, whether a particular area or territory of a foreign state is a political subdivision of that state, or 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. 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. Governor in Council may restrict immunity by order 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. Inconsistency 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. Rules of court not affected 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. Application This Act does not apply to criminal proceedings or proceedings in the nature of criminal proceedings.