Schreiber v. Federal Republic of Germany, 2001 CanLII 23999 (ON CA)

Schreiber v. The Federal Republic of Germany et al. [Indexed as: Schreiber v. Canada (Attorney General)]

52 O.R. (3d) 577

[2001] O.J. No. 524

Docket No. C34377

Court of Appeal for Ontario

Carthy, Doherty and Goudge JJ.A.

February 12, 2001

• Note: An appeal to the Supreme Court of Canada (McLachlin C.J., Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ.) was dismissed on September 12, 2002. S.C.C. File No. 28543. This information was noted at 2002 SCC 62, 61 O.R. (3d) 160. Full text of the SCC appeal is available at [2002] S.C.J. No. 62 (2002 SCC 62) in the SCJ database.

Civil procedure--Summary judgment--Republic of Germany requested extradition of plaintiff from Canada--Plaintiff arrested and detained under Extradition Act--Plaintiff brought action against Germany for damages arising from his arrest and detention--Germany moved successfully under rule 21.01(3)(b) of Rules of Civil Procedure for order dismissing action on basis that it was immune from suit under State Immunity Act--Motions judge did not err in deciding ultimate question as to whether Act applied instead of merely deciding whether it was plain and obvious that Germany was entitled to claim sovereign immunity --"Plain and obvious" approach cannot be applied to motion to dismiss founded on claim of state immunity--Scheme set out in State Immunity Act workable only if immunity claims are decided on their merits before any further step taken in action --State Immunity Act, R.S.C. 1985, c. S-18--Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(3)(b).

International law--Sovereign immunity--Republic of Germany requested extradition of plaintiff from Canada--Plaintiff arrested and detained under Extradition Act--Plaintiff brought action for damages for "personal injuries" in form of mental distress, denial of liberty and damage to reputation--Germany had not submitted to jurisdiction of Ontario courts under s. 4 of State Immunity Act by requesting extradition--Extradition proceedings were separate and distinct from plaintiff's lawsuit --"Personal injury" exemption to sovereign immunity in s. 6(a) of State Immunity Act did not apply as that exemption refers to physical injury and not to mental distress unless mental distress arises from or is linked to physical injury --State Immunity Act, R.S.C. 1985, c. S-18, ss. 5, 6(a).

The Federal Republic of Germany requested the extradition of the plaintiff from Canada. The Attorney General of Canada was authorized to seek a warrant for the plaintiff's arrest. A warrant was issued pursuant to s. 13 of the Extradition Act, S.C. 1999, c. 18 and the plaintiff was detained for eight days before he was released on bail. The plaintiff brought an action against Germany claiming damages for personal injuries suffered as a result of his arrest and detention. The "personal injuries" allegedly took the form of "mental distress, denial and restriction of liberty and damage to reputation". Germany brought a motion under rule 21.01(3)(b) of the Ontario Rules of Civil Procedure for an order dismissing the action, claiming that it was immune from the suit by virtue of the State Immunity Act. Under s. 4(2)(b) of the State Immunity Act, a foreign state submits to the jurisdiction of the court where it "initiates the proceedings in the court". The plaintiff claimed that Germany had submitted to the jurisdiction of the court under s. 4(2)(b) by initiating the extradition proceedings. The plaintiff also relied on s. 6(a) of the Act, which provides that a foreign state is not immune from the jurisdiction of a court in any proceedings that relate to "any death or personal injury" that occurs in Canada. The motions judge found in favour of Germany and dismissed the action against Germany. The plaintiff appealed.

Held, the appeal should be dismissed.

The motions judge did not err by deciding the ultimate question as to the meaning of the statutory provisions, instead of only deciding whether it was "plain and obvious" that Germany was entitled to claim sovereign immunity. The "plain and obvious" approach cannot be applied to a motion to dismiss founded on a claim of sovereign immunity. That claim challenges the obligation of the foreign state to submit to the court's jurisdiction. Until that challenge is decided, the action cannot proceed. A court faced with an immunity claim cannot withhold its decision until the end of the trial. The State Immunity Act clearly contemplates that any claim of sovereign immunity will be decided on its merits before the action proceeds any further. The motions judge properly approached the motion by deciding whether Germany was entitled to immunity.

Germany did not submit to the jurisdiction of the court by "initiating" extradition proceedings. Even if it could be said that Germany initiated the judicial proceedings under the Extradition Act (a characterization which was hard to accept since it was Canada that sought the warrant for the plaintiff's arrest), the extradition proceedings were separate and distinct from the plaintiff's lawsuit. The fact that the plaintiff's claim was based on conduct that occurred during the extradition process did not in any way make the extradition proceedings and the lawsuit one and the same proceeding.

"Personal injury" in s. 6(a) of the Act means physical injury and extends to mental distress and emotional upset only insofar as such harm arises from or is linked to a physical injury. That interpretation is supported by the French version of s. 6(a), which refers to "dommages corporels" (literally: "bodily injury"). The English and French versions of a federal statute are equally authoritative. When the meaning of the words in one version of a statute is broader than the meaning that can be given to the words in the other version of the statute, the task is to find a meaning that is shared by both versions. The phrase "personal injury" is broader and more ambiguous than the phrase "dommages corporels". While "personal injury" might mean non-physical injuries, "dommages corporels" speaks more clearly to physical injury. Physical injury is the shared meaning of the two versions of the statute. Some support for interpreting "personal injury" as meaning physical injury is also found in its combination in s. 6(a) with the word "death". The two read in combination connote physical harm to the person.

APPEAL from the judgment of Nordheimer J. (2000), 2000 CanLII 22376 (ON SC), 48 O.R. (3d) 521, 187 D.L.R. (4th) 146 (S.C.J.) dismissing an action against the Federal Republic of Germany.

Cases referred to Al-Adsani v. Government of Kuwait, [1995] N.L.O.R. No. 2626 (Q.B.), affd (1996), 107 I.L.R. 536 (C.A.); Canada Labour Code (Can.) (Re), 1992 CanLII 54 (SCC), [1992] 2 S.C.R. 50, 91 D.L.R. (4th) 449, 137 N.R. 81 (sub nom. Canada Labour Code and State Immunity Act (Re)); Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, 49 B.C.L.R. (2d) 273, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105 (sub nom. Hunt v. T & N plc); Jaffe v. Miller (1993), 1993 CanLII 8468 (ON CA), 13 O.R. (3d) 745, 103 D.L.R. (4th) 315 (C.A.), affg (1990), 1990 CanLII 6828 (ON SC), 75 O.R. (2d) 133, 73 D.L.R. (4th) 420 (H.C.J.) [Leave to appeal to S.C.C. refused, [1994] 1 S.C.R. viii, 166 N.R. 239n]; Joncas v. Sept-Iles (Town), [2000] J.Q. No. 5191 (Sup. Ct.); Kuwait v. Fevzi, [1999] E.W.J. No. 3450 (C.A.); Manitoba Language Rights (Reference re), 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, 35 Man. R. (2d) 83, 19 D.L.R. (4th) 1, 59 N.R. 321, [1985] 4 W.W.R. 385, 3 C.R.R. D-1 (sub nom. Language Rights Under Manitoba Act, 1870 (Reference re)); Michaud v. Quebec (Attorney General), [1998] R.R.A. 1065 (Sup. Ct.); Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1 (C.A.); Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir. 1984); R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128, 147 Nfld. & P.E.I.R. 1, 142 D.L.R. (4th) 50, 205 N.R. 161, 459 A.P.R. 1, 111 C.C.C. (3d) 353, 3 C.R. (5th) 187; R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72, 49 O.A.C. 47, 128 N.R. 299, 66 C.C.C. (3d) 517, 7 C.R. (4th) 314; United States of America v. Friedland (1999), 1999 CanLII 2432 (ON CA), 46 O.R. (3d) 321, 182 D.L.R. (4th) 614, 44 C.P.C. (4th) 47 (C.A.), revg (1998), 1998 CanLII 14864 (ON SC), 40 O.R. (3d) 747, 21 C.P.C. (4th) 89 (Gen. Div.) [Leave to appeal to S.C.C. granted, [2000] S.C.C.A. No. 91, 261 N.R. 400n]; Walker v. Bank of New York Inc. (1994), 1994 CanLII 8712 (ON CA), 16 O.R. (3d) 504, 111 D.L.R. (4th) 186 (C.A.), revg (1993), 1993 CanLII 5467 (ON SC), 15 O.R. (3d) 596, 20 C.P.C. (3d) 210 (Gen. Div.) [Leave to appeal to S.C.C. refused, [1994] 2 S.C. guR. x, 19 O.R. (3d) xvi, 178 N.R. 78n] (sub nom. Walker (Litigation guardian of) v. Bank of New York) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 9, 18 Civil Code of Quebec, S.Q. 1991, c. 64, arts. 1457, 1607 Criminal Code, R.S.C. 1985, c. C-46, s. 267(2) Extradition Act, S.C. 1999, c. 18, ss. 12, 13 Foreign Sovereign Immunities Act, 28 U.S.C.A. 1605(a)(5) State Immunity Act, R.S.C. 1985, c. S-18, ss. 3(1), 4, 5, 6(a) State Immunity Act 1978 (U.K.), 1978, c. 33, s. 5 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(3) (b) Authorities referred to Australian Law Reform Commission, Foreign State Immunity (Report No. 24) (Canberra: Australian Government Publishing Service, 1984) Côte, P.-A., The Interpretation of Legislation in Canada, 3d ed. (Toronto: Carswell, 2000) Crépeau, P.-A., ed., Private Law Dictionary and Bilingual Lexicon, 2d ed. (Cowansville, Que.: Yvon Blais, 1991) Emanuelli, C., "Commentaire: La Loi sur l'immunité des États" (1985) 45 R. du B. 81. House of Commons Debates (23 June 1981) at 10902-08, (30 April 1982) at 16787-93 Jewett, M.L., and Molot, H.L., "State Immunity Act--Basic Principles" (1983) 61 Can. Bar Rev. 843 Senate Debates (22 January 1981) at 1561-64, (26 May 1981) at 2454-55 Standing Committee on Justice and Legal Affairs Minutes of Proceedings and Evidence (2 February 1982) at 59:5-29, (4 February 1982) at 60:6-35. Sucharitkul, S., "Jurisdictional Immunities of States and their Property" in Yearbook of the International Law Commission, 1983, vol. II (New York: United Nations, 1985) UN Doc. A/ CN.4/363 Sullivan, R., ed., Driedger on the Construction of Statutes, 3d ed. (London: Butterworths, 1994)

Edward L. Greenspan, Q.C. and David Stratas, for appellant. Ed Morgan, for respondent Federal Republic of Germany. E. Noble, for respondent the Attorney General of Canada.

The judgment of the court was delivered by

DOHERTY J.A.:--

I

Introduction

1The appellant, Karlheinz Schreiber (Schreiber) sued the respondent, the Federal Republic of Germany (Germany) claiming damages for personal injuries suffered as a result of his arrest and detention in Canada pursuant to a warrant issued under the authority of s. 13 of the Extradition Act, S.C. 1999, c. 18. Germany brought a motion under rule 21.01(3)(b) of the [Rules of Civil Procedure R.R.O. 1990, Reg. 194] for an order dismissing the action claiming that it was immune from the suit by virtue of the State Immunity Act, R.S.C. 1985, c. S-18.

2Nordheimer J. found in Germany's favour and dismissed the action against Germany. [See Note 1 at end of document] He also granted a motion brought by the Attorney General of Canada (Canada), the second defendant in the action, for an order staying the action pending the determination of the extradition proceedings against Schreiber. The stay order is the subject of a separate appeal in the Divisional Court and is not before this court.

3I would affirm the order of Nordheimer J. dismissing the action against Germany.

II

Background

4Schreiber is a Canadian citizen and resided in Canada in 1999. In August 1999, Germany, pursuant to its treaty with Canada, requested the extradition of Schreiber from Canada to Germany. After consideration of the request, the Attorney General of Canada was authorized to seek a warrant for the arrest of Schreiber. A warrant was issued by Roberts J. of the Superior Court pursuant to s. 13 of the Extradition Act. Schreiber was arrested and held in custody for some eight days before he was released on bail. The extradition proceedings against Schreiber are ongoing.

5In November 1999, Schreiber commenced an action against Canada and Germany seeking "damages compensating the plaintiff for personal injury in the amount of $1,000,000".

6In his claim, Schreiber alleges that Canada and Germany owed him a duty of care to ensure that the extradition proceedings were authorized by the treaty between Canada and Germany and were conducted in a manner that was consistent with the Extradition Act and the Canadian Charter of Rights and Freedoms (the Charter).

7Schreiber further claims that Germany's request for extradition was not authorized by the treaty, and that his subsequent arrest and detention were not authorized by the Extradition Act and violated his rights under ss. 7 and 9 of the Charter. Schreiber alleges that Germany knew, was recklessly indifferent, or was wilfully blind to the illegality of its conduct.

8Schreiber contends that Germany is liable for the breach of the duty it owed to Schreiber and for Canada's conduct, since Canada acted as Germany's agent in the extradition process.

9Paragraph 23 of the Statement of Claim reads:

23. All of the foregoing conduct has caused Mr. Schreiber personal injury, including mental distress, denial and restriction of liberty and damage to reputation, for which the Defendants are liable. The full particulars of Mr. Schreiber's damages will be provided before trial.

(Emphasis added)

10Germany's motion to dismiss the action was based on the allegations in the Statement of Claim. Neither party adduced any evidence on the motion, although the authorization to apply for a provisional arrest warrant under s. 12 of the Extradition Act and the warrant issued by Roberts J. under s. 13 of that Act were before the motions judge.

11In bringing its motion, Germany was careful to limit the purpose of its appearance to a challenge to the jurisdiction of the court, and to deny any attornment to the jurisdiction of the court by the bringing of the motion: State Immunity Act, s. 4(3)(a).

12It was common ground on the motion and in this court that Germany was prima facie entitled to the immunity found in s. 3(1) of the State Immunity Act:

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

13Schreiber submitted that Germany had submitted to the jurisdiction of the Ontario courts as contemplated by s. 4 of the State Immunity Act. He also argued that in any event, his claim fell within the exception to sovereign immunity set out in s. 6(a) of that Act.

III

Standard of Review on Sovereign Immunity Motions

14Before addressing the applicability of the statutory provisions relied on by Schreiber, I will consider his submission that Nordheimer J. applied an improper test in dismissing the motion. Nordheimer J. interpreted the relevant statutory provisions and concluded that none of the allegations came within those provisions as he interpreted them. He decided the motion based on his determination of the correct interpretation to be given to the exemptions set out in the State Immunity Act. Counsel for Schreiber submits that the motions judge should not have decided the ultimate question as to the meaning of the statutory provisions, but should only have decided whether it was "plain and obvious" and "beyond doubt" that Germany was entitled to claim sovereign immunity in relation to the allegations made in the Statement of Claim. In making this submission, counsel relies on the well-established principle that pre-trial motions to strike claims or dismiss actions on the basis that they do not revea l a cause of action should only succeed in the clearest of cases: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 at p. 980, 49 B.C.L.R. (2d) 273; Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1 at pp. 5-6 (C.A.).

15There are strong, well-recognized policy reasons which preclude the pre-emptive striking of claims or dismissal of lawsuits on the basis that they do not disclose a cause of action. The exact nature of a claim is often an amalgam of fact and law which is melded through the trial process and only properly tested at the end of the trial. Plaintiffs should only be denied the opportunity to prove their claims at trial where the futility of those claims is obvious. In addition, a willingness to strike claims or dismiss actions prior to trial in situations where those claims or actions operate on the borderlines of the present jurisprudence will stultify the development of the law.

16The "plain and obvious" approach cannot be applied to a motion to dismiss founded on a claim of sovereign immunity. That claim challenges the obligation of the foreign state to submit to the court's jurisdiction. Until that challenge is decided, the action cannot proceed. Unlike a court faced with an allegation that a claim does not disclose a cause of action, a court faced with an immunity claim cannot withhold its decision until the end of the trial. There can be no trial until the court decides whether the foreign state is subject to the court's jurisdiction.

17The State Immunity Act clearly contemplates that any claim of sovereign immunity will be decided on its merits before the action proceeds any further. Section 4(2)(c) provides that a state submits to the jurisdiction of a court where it "takes any step in the proceedings before the court". Section 4(3)(b), however, permits the foreign state to appear in the proceedings strictly for the purpose of asserting sovereign immunity without thereby submitting to the court's jurisdiction. Participation beyond a claim of immunity may, however, result in the loss of any immunity to which the foreign state might otherwise have been entitled.

18If, on a motion to dismiss based on a sovereign immunity claim, a court were to conclude that it was not "plain and obvious" that the claim should succeed and direct that the matter proceed to trial, the foreign state would be in the untenable position of either not participating in the trial and risking an adverse result, or participating in the trial and thereby losing its immunity claim. The scheme set out in the State Immunity Act is workable only if immunity claims are decided on their merits before any further step is taken in the action.

19Although the sovereign immunity cases from this court have not specifically addressed the test to be applied on a motion to dismiss based on a sovereign immunity claim, all have proceeded on the premise that the motions judge was obligated to determine that claim on its merits and all have applied a correctness standard in reviewing the decision of the motions judge: Jaffe v. Miller (1993), 1993 CanLII 8468 (ON CA), 13 O.R. (3d) 745, 103 D.L.R. (4th) 315 (C.A.), affg (1990), 1990 CanLII 6828 (ON SC), 75 O.R. (2d) 133, 73 D.L.R. (4th) 420 (H.C.J.), leave to appeal to S.C.C. refused, [1994] 1 S.C.R. viii; Walker v. Bank of New York Inc. (1994), 1994 CanLII 8712 (ON CA), 16 O.R. (3d) 504, 111 D.L.R. (4th) 186 (C.A.), revg (1993), 1993 CanLII 5467 (ON SC), 15 O.R. (3d) 596, 20 C.P.C. (3d) 210 (Gen. Div.), leave to appeal to S.C.C. refused, [1994] 2 S.C.R. x; United States of America v. Friedland (1999), 1999 CanLII 2432 (ON CA), 46 O.R. (3d) 321, 182 D.L.R. (4th) 614 (C.A.), revg (1998), 1998 CanLII 14864 (ON SC), 40 O.R. (3d) 747, 21 C.P.C. (4th) 89 (Gen. Div.), leave to appeal to S.C.C. granted, [2000] S.C.C.A. No. 91.

20Whatever application the "plain and obvious" approach may have to motions to dismiss based on a lack of jurisdiction not founded on a claim of sovereign immunity, it cannot be applied to a claim based on sovereign immunity. Nordheimer J. properly approached the motion by deciding whether Germany was entitled to immunity. On appeal this court reviews the correctness of that decision.

IV

Analysis

21Schreiber alleges that Germany's sovereign immunity claim fails for two reasons. He contends that Germany submitted to the jurisdiction of the Ontario court and that the State Immunity Act specifically denies immunity in cases, like his, where it is alleged that the foreign state caused "personal injury" to a plaintiff in Canada.

Submission to Jurisdiction

22The contention that Germany submitted to the jurisdiction of the court is premised on the contention that the extradition proceedings initiated by Canada in the Superior Court on behalf of Germany are the same proceeding as the lawsuit initiated by Schreiber in the Superior Court after his arrest and detention on the extradition warrant. Schreiber relies on ss. 4(2)(b) and 4(4) of the State Immunity Act:

4(2) In any proceedings before a court, a foreign state submits to the jurisdiction of the court where it

(b) initiates the proceedings in the court;

(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.

23There is no merit to Schreiber's arguments based on s. 4 of the State Immunity Act. I agree with Nordheimer J. that the extradition proceedings are separate and distinct from Schreiber's lawsuit. Extradition proceedings are part of the process through which Canada honours its obligations to other nations. Schreiber's claim is a private action for damages. The fact that Schreiber's claim is based on conduct that occurred during the extradition process does not in any way make the extradition proceedings and Schreiber's lawsuit one and the same proceeding. Even if it could be said that Germany initiated the judicial proceedings under the Extradition Act (a characterization I find very hard to accept since it was Canada that sought the warrant for Schreiber's arrest), those proceedings are entirely distinct from a law suit Schreiber initiated.

24I also agree with Nordheimer J.'s interpretation of s. 4(4). The terms "counter-claim" and "third party proceedings" are well known in the civil procedure parlance. Schreiber's suit is neither.

25The statutory provisions relied on by Schreiber are clear and leave no room for the argument that Germany submitted to the jurisdiction of Ontario. I would, however, reject this argument even if one could look beyond the clear words of the statute to policy considerations. It is entirely contrary to concepts of comity and mutual respect as between nations to hold that a country that calls upon Canada to adhere to its treaty obligations and to assist in extradition to that country does so only at the expense of submitting to the domestic jurisdiction of Canadian courts in matters connected to the extradition request. Extradition is fundamentally a matter between sovereign nations, each exercising its sovereign authority. As a matter of policy, I see no reason why the exercise of that sovereign authority by a foreign state should somehow cost that foreign state its right to claim sovereign immunity in Canadian domestic courts.

26Germany did not submit to the jurisdiction of the court either under the terms of s. 4(2)(b) or s. 4(4) of the State Immunity Act.

The Personal Injury Exception

27The other argument advanced by Schreiber relies on s. 6(a) of the State Immunity Act:

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

(a) any death or personal injury,

that occurs in Canada.

28Schreiber has alleged that he suffered personal injury, including mental distress, denial and restriction of his liberty, and damage to his reputation as a result of Germany's deliberate, reckless, or negligent failure to adhere to its treaty with Canada, the Extradition Act and the Charter. Schreiber has not alleged that he suffered any physical injury.

29Counsel for Schreiber argues that personal injury includes any interference with, or injury to, the person and is not limited to physical injury. He relies on a passage from the judgment of this court in Walker v. Bank of New York Inc., supra. Counsel maintains that there is no principled basis for holding a foreign sovereign accountable in a Canadian court for tortious conduct that causes a physical injury in Canada but not for the same tortious conduct if it causes other forms of interference with, or harm to, the person. Counsel observes that non-physical harm to the person may be more serious than physical harm. He urges the court to interpret s. 6(a) so as to produce a "reasonable and just outcome".

30Counsel for Germany submits that this court has held that claims which do not involve physical injury are not within the scope of the exemption to sovereign immunity created by s. 6(a). He relies on the judgment in United States of America v. Friedland, supra. Counsel contends that Friedland, supra, effectively explains the passage in Walker, supra, relied on by Schreiber so as to render that reliance misplaced. Counsel for Germany also submits that s. 6(a) derogates from the broad immunity enjoyed by foreign sovereigns at common law and should be read restrictively. Lastly, in direct response to Schreiber's argument that he suffers an injustice if Germany's claim to immunity succeeds, counsel submits that every recognition of sovereign immunity can be seen as doing an injustice to an individual plaintiff in that it denies that plaintiff his or her day in court. Counsel submits that the policies that animate the s overeign immunity doctrine look to broader international interests at the expense of the personal interests of those who claim to be wronged by a foreign sovereign: Re Canada Labour Code (Can.), 1992 CanLII 54 (SCC), [1992] 2 S.C.R. 50, 91 D.L.R. (4th) 449, per La Forest J., at p. 91 S.C.R..

31Counsel's submissions require a careful examination of Walker, supra, and Friedland, supra. I must determine whether either or both of those cases decide whether Schreiber's claim is one for "personal injury" within the meaning of s. 6(a). If the issue has been decided by the prior decisions, I must determine whether this panel should depart from earlier authority.

32Before examining Walker, supra, and Friedland, supra, it is appropriate to observe that apart from these two decisions, there is precious little on the Canadian legal landscape that assists in determining the meaning of "personal injury" in s. 6(a). Unlike the "commercial activity" exception to state immunity in s. 5 of the State Immunity Act, the exception in s. 6(a) was created by the statute and has no common law ancestry to inform the meaning of the statutory exception: Jaffe v. Miller, supra, at pp. 756, 764-65 O.R.. The section attracted virtually no attention in the Parliamentary debates and committee proceedings leading to the enactment of the State Immunity Act. [See Note 2 at end of document] Subsequent commentaries on the Act do not consider the section in any depth. [See Note 3 at end of document] The court was not referred to any other provincial appellate authority which has addressed the section.

33I turn now to the two cases on which this appeal turns. In Walker, supra, the plaintiff was contacted in Toronto by American authorities as part of a "sting" operation. The American operatives convinced the plaintiff to provide certain firearms for destinations prohibited by American legislation. In furtherance of that scheme, the American operatives arranged for a meeting with the plaintiff in the Bahamas and gave him a plane ticket for that destination. The flight made a scheduled stop in New York where the plaintiff was arrested and charged under the American firearms legislation. He pled guilty and was allowed to return to Canada pending sentencing. He decided not to return to the United States for sentencing, but instead commenced an action against the U.S. government. He alleged conspiracy, unlawful imprisonment, fraud, and misrepresentation. He did not allege that he suffered any physical injury.

34The United States moved to dismiss the action claiming sovereign immunity under the terms of the State Immunity Act. The motions judge dismissed the motion, holding that the United States was not immune from the suit launched by the plaintiff. This court reversed and dismissed the action, holding that the United States was entitled to sovereign immunity under the Act.

35McKinlay J.A., for the court, began her analysis of s. 6(a) by doubting that it should be interpreted by reference to the distinction drawn in the common law doctrine of sovereign immunity between public and private functions performed by foreign states. She pointed out, at p. 509 O.R., that the exception to sovereign immunity found in s. 6(a) did not exist at common law. She went on, however, to hold that s. 6(a) clearly required that the personal injury occur in Canada. She said, at p. 510 O.R.:

If the respondent [Walker] suffered mental distress, emotional upset, or false imprisonment -- and for the purposes of this appeal we must assume that he did -- he did not suffer those injuries in Canada, but in the U.S. Consequently all of the appellants enjoy the protection of the Act.

36Immediately prior to this holding, however, McKinlay J.A. made the observation [at p. 510 O.R.] relied on by Schreiber:

We agree with the position of counsel for the respondent [Walker] that the scope of personal injury covered by s. 6 is not merely physical, but could include mental distress, emotional upset, and restriction of liberty.

(Emphasis added)

37If the jurisprudence stopped at Walker, supra, Schreiber would be on strong ground. Although McKinlay J.A. did refer to "merely" physical injury and did say that personal injuries under s. 6(a) "could include" non-physical injuries, it seems that had Walker suffered the mental distress, emotional upset, or restriction of his liberty in Canada, this court may well have refused to give effect to the sovereign immunity claim.

38Unfortunately, for Schreiber, the case law does not stop at Walker, supra. In Friedland, supra, the plaintiff sued the United States claiming that torts committed by the United States had caused him injury, including damage to his reputation, emotional upset and personal embarrassment. The plaintiff did not allege physical injury. The United States moved unsuccessfully to dismiss the action claiming sovereign immunity. This court allowed an appeal by the United States and dismissed the action.

39In Friedland, supra, the plaintiff relied on the exception to sovereign immunity set out in s. 6(a) of the State Immunity Act. He maintained that he had suffered "personal injury" in the form of damage to his reputation, emotional upset and personal embarrassment. Those injuries had occurred in Canada. In contending that his allegations brought him within s. 6(a), Friedland relied heavily on the observations of McKinlay J.A. in Walker, supra, quoted above. This court rejected that submission stating, at para. 25 [p. 328 O.R.]:

In our view, s. 6(a) does not assist Friedland. The obiter statement of McKinlay J.A. in Walker at p. 510, that "the scope of personal injury covered by s. 6 . . . could include mental distress, emotional upset, and restriction of liberty" does not mean that s. 6 extends to mental distress or emotional upset in all cases. Otherwise, a party could invoke s. 6(a) merely by claiming damages for alleged mental distress or emotional upset, an interpretation that would expand the exception far beyond its intended scope and render the doctrine of sovereign immunity ineffective. We agree with counsel for the appellants [the United States] that the "personal injury" exception refers primarily to physical injury and that s. 6(a) extends to mental distress and emotional upset only in so far as such harm arises from or is linked to a physical injury. This interpretation is consistent with the generally accepted international understanding of the "personal injury" exception to sovereign immunity.

(Emphasis added)

40The above passage from Friedland, supra, is part of the ratio. Friedland's claim that the United States was not immune from suit on his claims for damage to his reputation, emotional upset and personal embarrassment failed entirely because of the court's interpretation of s. 6(a). That interpretation was essential to the decision of the court.

41Counsel for Schreiber tried valiantly to escape the holding in Friedland, supra, by pointing out that while the court in Friedland, supra, held that claims for mental distress or upset were not "personal injury" claims absent some physical injury, it did not advert to claims based exclusively on the restriction of personal liberty. Counsel submits that the observations in Walker, supra, remain unaffected by Friedland, supra, insofar as a claim alleges interference with personal liberty. Counsel contends that such claims fall within the s. 6(a) exception even without physical injury. Schreiber's claims include a claim for "restriction of liberty" based on the eight days he spent in custody following his arrest.

42It is true that Friedland, supra, does not refer to restraint of liberty when explaining the passage from Walker, supra. This is no doubt because there was no allegation of restraint of liberty made in Friedland, supra. I can see no basis, however, upon which to read personal injury as requiring physical injury for some types of harm but not others. It is particularly difficult to draw a distinction between allegations of mental distress and allegations of interference with personal liberty. The two allegations will almost inevitably go together. The latter brings about the former. To say that an allegation of interference with personal liberty is a "personal injury" absent any physical injury is in effect to say that at least some claims for mental distress are personal injury claims even without any physical harm. That position is foreclosed by Friedland, supra.

43Friedland, supra, is dispositive of Schreiber's submission that his claim falls within the s. 6(a) exemption to state immunity. Unless this panel chooses to depart from Friedland, supra, Schreiber's appeal must fail.

44This court is not strictly bound by its earlier decisions. If this were a matter of first impression, I might be disposed to interpret "personal injury" as including non- physical injuries. The mere fact that I might decide a matter differently [from] a previous panel is, however, no reason to depart from that prior authority.

45I have reviewed the Canadian, English and American case law. There is no other Canadian authority which casts any doubt on Friedland, supra. [See Note 4 at end of document] Like Canada, England and the United States have enacted state immunity statutes. Both were enacted shortly before the State Immunity Act and were well known to the drafters of that Act. The "personal injury" exception to state immunity in the English legislation is virtually identical to s. 6(a). [See Note 5 at end of document] The English courts have not directly addressed the meaning of the phrase "personal injury" in their legislation, although two decisions, which turned on other issues, appeared to accept without analysis that "personal injury" could include non-physical injury such as mental stress or depression: Al-Adsani v. Government of Kuwait, [1995] N.L.O.R. No. 2626 at paras. 11, 43, 44 (Q.B.), online: QL (NLOR), affd (1996), 107 I.L.R. 536 at 544 (per Stuart-Smith L.J.), 549-50 (per Ward L.J.) (C.A.); Kuwai t v. Fevzi, [1999] E.W.J. No. 3450 (C.A.), online: QL (EWJ) (application for leave to appeal).

46The American legislation contains a "personal injury" exception to state immunity and then lists several torts and other actions that are not subject to that exception. [See Note 6 at end of document] The American legislation has received substantial judicial scrutiny, and at least one case has accepted that personal injuries can include non-physical injuries: Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir. 1984), per Bork J. for the majority, at p. 843, per Edwards J. dissenting, at pp. 843-44.

47I do not think that the English or American authorities give cause to depart from Friedland, supra. The English authorities do not provide any analysis of the phrase "personal injury", nor do they address the arguments considered in Friedland, supra, and in the present case. The structure of the American "personal injury" exception is so different [from] that found in s. 6(a) of the State Immunity Act that it makes reference to American authorities of doubtful use in interpreting the Canadian provision. Schreiber did not refer to or rely on any of the English or American authorities.

48The scope of the "personal injury" exception to state immunity as understood by international lawyers is consistent with the conclusion arrived at in Friedland, supra. The "personal injury" exception was considered at some length by the International Law Commission in 1983, less than one year after the enactment of the State Immunity Act: S. Sucharitkul, "Jurisdictional Immunities of States and their Property" in Yearbook of the International Law Commission, 1983, vol. II (New York: United Nations, 1985) 25, UN Doc. A/CN.4/363. The report observed that the exception was in its infancy on the international stage. The reach of that exception was described, at 38:

This area covers the liability of a state . . . to pay damages or monetary compensation in respect of an act or omission attributable to the state, resulting in personal injury (physical damage) to a natural person . . . In common law jurisdictions such causes of action may be included under the heading of tortious liability. For the purposes of jurisdictional immunity, they may be characterized as a non- commercial tort. In civil law and other jurisdictions, a similar heading may be entitled civil responsibility for physical damage to persons resulting in bodily harm, personal injuries or death.

49After reviewing various legislative treatments of the personal injury exception, including the Canadian legislation, the report continued at 44:

The area under consideration covers physical damage to the person which may cause death or disability or other bodily harm.

50In proposing a draft article that would encompass the personal injury exception to sovereign immunity, the report stated at 45:

The area under review unequivocally covers "personal injury", including loss of life or physical injury to the person as well as "damage to property", including loss or total destruction of tangible property. It is clear from the type of physical damage inflicted upon the person or property that the cause of action could arise from any activities undertaken by a foreign state . . . within the state of the forum. Damage to reputation or defamation is not personal injury in the physical sense, nor can interference with contract rights or any rights, including economic or social rights, be viewed as damage to tangible property.

51It seems clear that the "personal injury" exception to sovereign immunity considered by the International Law Commission contemplated physical injury. The report of the Australian Law Reform Commission, Foreign State Immunity (Report No. 24) (Canberra: Australian Government Publishing Service, 1984) took the same view. The Commissioners said, at 68:

Rather than attempt to list comprehensively all of the torts for which immunity should remain, it seems simpler to follow the majority of overseas models and exclude recovery for other than physical injury, and loss or damage to tangible property. . . . It is necessary to proceed cautiously in this area, a need which justifies denying recovery against foreign states under the proposed tort provision involving solely economic loss. Where the economic loss is parasitic on physical injury, recovery will be available on ordinary tort principles. Accordingly, it is recommended that the proposed Australian provision on torts allow recovery only for death, personal injury or loss or damage to tangible property.

(Emphasis added)

52These international authorities were before the court in Friedland, supra, and influenced its interpretation of "personal injury" in s. 6(a). I think it is entirely appropriate to refer to these international authorities when giving meaning to a statute like the State Immunity Act.

53I find support for the interpretation of "personal injury" adopted in Friedland, supra, in the French version of s. 6(a):

6. L'État étranger ne bénéficie pas de l'immunité de juridiction dans les actions découlant :

a) des décès ou dommages corporels survenus au Canada;

(Emphasis added)

54The French text literally provides that the foreign state enjoys no sovereign immunity in claims related to "bodily injury": P.-A. Crépeau, ed., Private Law Dictionary and Bilingual Lexicon, 2d ed. (Cowansville, Que.: Yvon Blais, 1991). The word "corporel", as applied to claims for compensatory damages is well-known in the civil law of Quebec. The Civil Code of Quebec, S.Q. 1991, c. 64, lists three categories of compensable harm that may arise from delictual responsibility, these being "corporel, moral ou matériel" (arts. 1457, 1607 C.C.Q.). "Corporel" has been interpreted to mean physical injury to the body. Purely non-physical injuries are captured by the term "moral": see Michaud v. Quebec (Attorney General), [1998] R.R.A. 1065 at paras. 20-22 (Sup. Ct.); Joncas v. Sept-Iles (Town), [2000] J.Q. No. 5191 (Sup. Ct.).

55The English and French versions of a federal statute are equally authoritative: Charter, s. 18; Manitoba Language Rights (Reference Re), 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721 at pp. 774-75, 35 Man. R. (2d) 83. Where the meaning of the words in one version of a statute is broader than the meaning that can be given to the words in the other version of the statute, the task is to find a meaning that is shared by both versions: R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128 at pp. 1157-58, 147 Nfld. & P.E.I.R. 1; P.-A. Côte, The Interpretation of Legislation in Canada, 3d ed. (Toronto: Carswell, 2000) at pp. 326-28; R. Sullivan, ed., Driedger on the Construction of Statutes, 3d ed. (London: Butterworths, 1994) at p. 221.

56The phrase "personal injury" is broader and more ambiguous than the phrase "dommages corporels". While "personal injury" might mean non-physical injuries, "dommages corporels" speaks more clearly to physical injury. In my opinion, physical injury is the shared meaning of the two versions of the statute.

57I also find some support for interpreting "personal injury" as meaning physical injury by its combination in s. 6(a) with the word "death". The two read in combination connote physical harm to the person. [See Note 7 at end of document]

V

Conclusion

58In summary, I can find no basis for departing from the decision in Friedland, supra. Arguments not advanced in Friedland, supra, lend further support to the interpretation of s. 6(a) adopted in that case. If it is to be said that Friedland, supra, is wrongly decided, it will have to be said by a higher authority. I would apply Friedland, supra, and dismiss the appeal with costs.

Appeal dismissed.

Notes

Note 1: His reasons are reported at (2000), 2000 CanLII 22376 (ON SC), 48 O.R. (3d) 521, 187 D.L.R. (4th) 146 (S.C.J.).

Note 2: Senate Debates (22 January 1981) at 1561-64, (26 May 1981) at 2454-55; House of Commons Debates (23 June 1981) at 10902-08, (30 April 1982) at 16787-93; Standing Committee on Justice and Legal Affairs Minutes of Proceedings and Evidence (2 February 1982) at 59:5-29, (4 February 1982) at 60:6-35.

Note 3: M.L. Jewett and H.L. Molot, "State Immunity Act -- Basic Principles" (1983) 61 Can. Bar Rev. 843; C. Emanuelli, "Commentaire: La Loi sur l'immunité des États" (1985) 45 R. du B. 81.

Note 4: The Supreme Court of Canada granted leave to appeal in Friedland, supra. A notice of appeal was filed on September 21, 2000, but the appeal has not yet been inscribed for hearing.

Note 5: State Immunity Act 1978 (U.K.), 1978, c. 33, s.5.

Note 6: Foreign Sovereign Immunities Act, 28 U.S.C.A. subsection 1605(a)(5).

Note 7: In R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72 at pp.79-81, 66 C.C.C. (3d) 517 at pp. 523-24, the term "bodily harm" in the phrase "death or serious bodily harm" was said to include non-physical injury. In reaching that interpretation, however, the court placed heavy reliance on the definition or bodily harm found in a provision in the [Criminal code R.S.C. 1985, c. C-46, s. 267(2)]. That definition clearly included non-physical harm.