Court of Appeal for Ontario

CITATION: Bedessee Imports Ltd. v. Guyana Sugar Corporation, Inc., 2010 ONCA 719

DATE: 20101028

DOCKET: C52418

Sharpe, Armstrong and Rouleau JJ.A.

BETWEEN

Bedessee Imports Ltd. and Bedessee Imports Inc.

Plaintiffs (Respondents)

and

Guyana Sugar Corporation, Inc., Robert Persaud, Guyana Current, David Narine, Guyana Observer, National Communication Network, Kaieteur News Inc., Kaieteur Newspaper Inc., Guyana Times Inc., and Guyana News Today

Defendants (Appellants)

Mark A. Gelowitz and Lauren Tomasich, for the appellants Guyana Sugar Corporation Inc. and Robert Persaud

Peter E. J. Wells, for the respondents

Heard & released orally: October 22, 2010

On appeal from the order of Justice G.R. Strathy of the Superior Court of Justice dated June 10, 2010, with reasons reported at (2010), 2010 ONSC 3388, 320 D.L.R. (4th) 476.

ENDORSEMENT

[1] This appeal arises from a motion to dismiss a defamation claim made against the Minister of Agriculture of the Government of Guyana and a state-owned company on grounds of state immunity.

[2] The motion judge dismissed that motion and held that the Minister’s statements fell within the commercial activity exception to state immunity provided for in s. 5 of the State Immunity Act, R.S.C. 1985, c. S-18.

[3] The appellants’ central submission is that the motion judge erred in placing undue emphasis on the purpose of the Minister’s statements, and that he should have given primary attention to the nature of those statements, namely, statements by a minister speaking on behalf of the Government of Guyana in the public interest of Guyana. A related submission is that the motion judge ignored the constitutional dimension of the Minister’s role and statements.

[4] We are unable to accept these submissions. In Kuwait Airways Corp. v. Iraq, 2010 SCC 40, released the day before this appeal was heard, the Supreme Court of Canada held at para. 30:

It is therefore not sufficient to ask whether the act in question was the result of a state decision and whether it was performed to protect a state interest or attain a public policy objective. If that were the case, all acts of a state or even of a state-controlled organization would be considered sovereign acts.

[5] The court went on at para. 31 to refer to the decision in Re Canada Labour Code, 1992 CanLII 54 (SCC), [1992] 2 S.C.R. 50 at p. 73, where La Forest J. stated that the commercial activity exception required the court to consider the entire context and adopt a “contextual approach” and explained that “[r]igid adherence to the ‘nature’ of an act to the exclusion of purpose would render innumerable government activities jure gestionis.”

[6] In our view, the reasons of the motion judge are entirely consistent with these directions from the Supreme Court of Canada. The motion judge considered the statements of the Minister in the context of the ongoing trademark dispute between the state-owned Guyana Sugar Corporation and the respondent and concluded at para. 59:

The statements promoted Guyana’s “brand” and disparaged the brand of a competitor. To permit a lawsuit by Bedessee in relation to such activity is neither an affront to the dignity of the Guyanese state nor an interference with its sovereign functions.

[7] This conclusion was supported by the motion judge’s factual findings which, in turn, were well supported by the evidence. We agree with his careful reasons and we see no basis to interfere.

[8] We do note that in Kuwait Airlines at para. 22, the Supreme Court of Canada held that it is up to the party opposing the state asserting its immunity to establish that it may rely on an exception to this immunity. In his reasons, the motion judge applied the law as it stood when he decided the case and placed the onus on the appellant to make out the immunity. However, it is apparent to us from his reasons that the placement of the onus played no role in the motion judge’s decision.

[9] Accordingly, the appeal is dismissed. Costs to the respondent fixed at $20,000 inclusive of disbursements and taxes.

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”

“Paul Rouleau J.A.”