Court of Appeal for Ontario

Bouzari v. Iran (Islamic Republic)

Date: 2003-08-22

Counsel: Christine Mohr and Peter Southey, for Attorney General of Canada (moving party). Mark H. Arnold, for appellants, Houshang Bouzari, Fereshteh Yousefi, Shervin Bouzari and Narvan Bouzari. No one appearing for respondent, Islamic Republic of Iran.

Court File No. C38295; M30146

Endorsement

[1] Sharpe J.A. (in Chambers):—The Attorney General of Canada moves for an order to clarify its status in this appeal. It is common ground that, having intervened at trial to respond to the constitutional issue pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109, the Attorney General of Canada is entitled to the status in this appeal accorded by s. 109(5), namely, to "be deemed to be a party to the proceedings for the purpose of any appeal in respect of the constitutional question". The parties disagree about precisely what that status involves.

[2] The appellants assert a claim against the Islamic Republic of Iran for damages arising from imprisonment and torture. They contend that, properly interpreted, the State Immunity Act, R.S.C. 1985, c. S-18, does not bar their suit against Iran. To the extent it does, they say it violates their Canadian Charter of Rights and Freedoms rights. Iran did not defend the action, but the Attorney General of Canada intervened at trial pursuant to the Courts of Justice Act, s. 109 to defend the constitutionality of the State Immunity Act. The trial judge found that the courts of Ontario lacked jurisdiction over the claim, that the State Immunity Act bars the action, and dismissed the constitutional challenge [summarized 114 A.C.W.S. (3d) 57]. The appellants appeal on all three issues.

[3] In her oral submissions before me, counsel for the Attorney General of Canada expressly stated that the Attorney General had restricted its involvement at trial to the constitutional issue and intended to do so as well on the appeal. She stated that the Attorney General of Canada would make no submissions and take no position with respect to the other issues arising on this appeal. Counsel further indicated that the Attorney General of Canada did not seek status as a party to the action or the appeal pursuant to Rule 5 or as an intervener pursuant to Rule 13. However, the Attorney General asserts the right to be named as a respondent to the appeal pursuant to s. 109(5).

[4] Counsel for the appellants insists that s. 109(5) does not entitle the Attorney General to be named as a respondent.

[5] Lurking behind what might otherwise appear to be an arid procedural debate about the formal status of the Attorney General in the present appeal are three practical concerns:

(a) the Attorney General argues that as a respondent to the appeal, it has the rights conferred by rule 61.05 with respect to a certificate of evidence. The appellants have not included in the evidence filed on the appeal expert reports led by the Attorney General and made exhibits at trial;

(b) the appellants ask for an order restricting the right of the Attorney General to make submissions on the constitutional issue as it is specifically framed in the appellants' factum; and

(c) both parties are concerned about potential appeal rights to the Supreme Court of Canada.

[6] In my view, the purpose of s. 109(5) is to ensure that an Attorney General who has intervened on a constitutional issue at trial has the right to appeal an adverse ruling on the constitutional issue as well as the right to respond to an appeal against the dismissal of a constitutional challenge. However, under s. 109(5), the rights of an Attorney General who intervened at trial are limited to the constitutional issue. The Attorney General is not entitled to appeal the judgment on some other issue, and where an unsuccessful constitutional challenge is appealed to this court, an Attorney General who relies on s. 109 cannot broaden his or her participation beyond the scope of the constitutional question. In my view, s. 109(5) does not alter the status of the Attorney General as an intervener. The Attorney General is "deemed to be a party" but only "for the purpose of any appeal in respect of the constitutional question" (emphasis added). The word "party" is not defined in the Rules, but the word "deemed" suggests to me that the Attorney General retains the formal status as intervener, while acquiring certain appellate rights normally reserved for parties, but limited to the constitutional issue. The Attorney General came into this proceeding as an intervener under s. 109 and the Attorney General's participation should continue under that label for the purposes of this appeal. However, the title of proceedings should also reflect the special status conferred by s. 109(5). It seems to me that the best way to capture that special status in the title of proceedings is to label the Attorney General as "Intervener (Appellant)" or "Intervener (Respondent)" as the case may be.

[7] I agree with the submission of the Attorney General that those rights include the rights of a respondent with respect to the appellant's certificate of evidence, but only with respect to evidence that bears upon the constitutional issue. As the appeal has been perfected and listed for hearing, the appropriate order here is to permit the Attorney General to file a supplementary exhibits book including the expert reports admitted at trial bearing upon the constitutional issue

[8] I do not accept the appellants' submission that the Attorney General is necessarily to be restricted in the scope of its written submissions on the constitutional issue by the precise manner in which the appellants have framed that issue in their factum. It is for the court, not the appellant, to decide what is relevant to the constitutional issue and the Attorney General's rights should be determined accordingly. On the basis of the record before me, which does not contain a draft factum from the Attorney General, I can be no more precise than that.

[9] I would not presume to make any ruling with respect to potential appeal rights from any judgment of this court, a matter that is now premature and that in any event would ordinarily be dealt with by the Supreme Court of Canada.

[10] Accordingly, I order that:

(1) the title of proceedings be amended to show the Attorney General of Canada as an Intervener (Respondent), and

(2) the Attorney General of Canada should also be entitled to file a supplementary exhibits book including the expert reports admitted at trial with reference to the constitutional issue.

[11] The Attorney General points out that an order has been made by the Chief Justice allowing Amnesty International (Canadian Section) to intervene. In light of that order, the appellants should ensure that the title of proceedings properly reflects the status of that intervener in this appeal.

[12] In my view, this is not a matter for costs.

Order accordingly.