In a motion arising from efforts to set aside a recognition and enforcement order of an international arbitral award against a foreign state, the court considered whether the foreign state's ambassador could be compelled to attend for cross-examination on his affidavit.
The moving party argued diplomatic or sovereign immunity barred compulsion, relying in part on Article 44 of the Vienna Convention on Consular Relations as adopted into Canadian law.
The court held that while an ambassador is ordinarily under no obligation to give evidence, filing an affidavit in the proceeding waives that immunity for the purpose of cross-examination unless the affidavit is withdrawn.
Given the affidavit's central importance to notice and non-attendance issues on the Rule 38.11 motion, direct cross-examination was ordered.
