Court of Appeal for Ontario

Date: June 30, 2017

Docket: C62403, C62404, C62405, C62406, C62407

Panel: Hoy A.C.J.O., Blair and Hourigan JJ.A.

Parties

Between

Edward Tracy, by his Litigation Guardian, Charles Murphy; Elizabeth Cicippio-Puleo; Estate of Helen Fazio; Estate of Domenic Cicippio; David B. Cicippio; Eric R. Cicippio; Richard Dennis Cicippio; Thomas J. Cicippio; Estate of Paul V. Cicippio; Allen John Cicippio; Estate of Rose Abell; Anthony Cicippio; Estate of Alexander Cicippio; Nicholas B. Cicippio; and Estate of Joseph J. Cicippio Jr.

Applicants (Respondents)

and

The Iranian Ministry of Information and Security; The Islamic Republic of Iran; and The Iranian Revolutionary Guard Corp.

Respondents (Appellants)

And Between

Estate of Marla Bennett; Michael Bennett; Linda Bennett; and Lisa Bennett

Plaintiffs (Respondents)

and

The Iranian Ministry of Information and Security and the Islamic Republic of Iran

And Between

Chad Phillip Holland

Plaintiff (Respondent)

and

The Islamic Republic of Iran; the Iranian Ministry of Information and Security; and the Iranian Revolutionary Guard Corps

Defendants (Appellants)

And Between

American Center for Civil Justice, Inc., as Assignee For Christine Higgins

Plaintiff (Respondent)

and

The Iranian Revolutionary Guard Corps

Defendant (Appellant)

And Between

Katie L. Marthaler; Herman C. Marthaler, III; Matthew Marthaler; Kirk Marthaler; Richard W. Wood; Kathleen M. Wood; Shawn M. Wood; Francis Heiser; Denise M. Eichstaedt; Anthony W. Cartrette; Lewis W. Cartrette; Thaddeus C. Fennig; Catherine Fennig; Paul D. Fennig; Mark Fennig; Catherine Adams; Mary Young; Daniel Adams; Elizabeth Wolf; Patrick D. Adams; John E. Adams; William Adams; Michael T. Adams; Christopher R. Nguyen; Bridget Brooks; James R. Rimkus; Anne M. Rimkus; Steve K. Kitson; Nancy A. Kitson; Lawrence E. Taylor; Vickie L. Taylor; Starlina D. Taylor; Dawn Woody; Bernadine R. Beekman; Tracy M. Smith; Jonica L. Woody; Timothy Woody; Ibis S. Haun; Senator Haun; Milagritos Perez-Dalis; Cecil H. Lester, Sr.; Judy Lester; Cecil H. Lester, Jr.; Jessica F. Lester; Shyrl L. Johnson; Kevin Johnson, Jr.; Nicholas A. Johnson, A Minor, By His Legal Guardian Shyrl L. Johnson; Michael Morgera; Thomas Morgera; Marie R. Campbell; Bessie A. Campbell; James V. Wetmore; George M. Beekman; Che G. Colson; Bruce Johnson; Estate Of Brent E. Marthaler; Estate Of Sharon Marthaler; Estate Of Michael Heiser; Estate Of Gary Heiser; Estate Of Patrick P. Fennig; Estate Of Christopher Adams; Estate Of Thanh Van Nguyen; Estate Of Sandra M. Wetmore; Estate Of Kendall Kitson, Jr.; Estate Of Kendall K. Kitson, Sr.; Estate Of Nancy R. Kitson; Estate Of Joshua E. Woody; Estate Of Leland Timothy Haun; Estate Of Christopher Lester; Estate Of Kevin J. Johnson, Sr.; Estate Of Millard D. Campbell; Estate Of Peter J. Morgera; Estate Of Justin R. Wood; Estate Of Earl F. Cartrette, Jr.; Estate Of Brian Mcveigh; Estate Of Joseph E. Rimkus; Estate Of Jeremy A. Taylor; Estate Of Laura E. Johnson; Paul Alexander Blais; Estate Of Curtis Taylor; Maria Taylor; Cielito Valencia; Luz Southard; Steven Wolfe; Sonya Turner Broadway; Estate Of Betty Welch; Gerard Welch; Michael Welch; Richard Paul Brewer; Joyce Louise Leydet; Diana Campuzano; Avi Elishis; Gregg Salzman; Donna Marie Holland; James Robert Holland; Elisa Nili Cirilo Peres Ben-Rafael; Yonatan Mishael Benrafael, A Minor By His Litigation Guardian Elisa Nili Cirilo Peres Ben-Rafael; Ralph Goldman; Noa Ruth Ben-Rafael; Judith Goldman Baumgold; and Naomi Goldman

Plaintiffs (Respondents)

and

The Islamic Republic of Iran; the Iranian Ministry of Information and Security; and the Iranian Revolutionary Guard Corps

Defendants (Appellants)

Counsel

For the Appellants: Colin Stevenson and J. Daniel McConville

For the Respondents, Tracy and Bennett: John Adair and Gordon McGuire

For the Respondents, Marthaler, Holland and American Center for Civil Justice, Inc.: John B. Laskin, Sarah Whitmore, Eliot Che

For the Intervener, the Attorney General of Canada: Jacqueline Dais-Visca and Joseph Cheng

Heard: April 18, 2017

On appeal from: The orders of Justice Glenn A. Hainey of the Superior Court of Justice, dated June 9, 2016, with reasons reported at 2016 ONSC 3759, 400 D.L.R. (4th) 670.

Reasons for Decision

Hourigan J.A.:

A. INTRODUCTION

[1] In 2012, Parliament enacted the Justice for Victims of Terrorism Act, S.C. 2012, c. 1 ("JVTA"), which was part of the Government of Canada's effort to strengthen its response to terrorism. The legislation granted victims of terrorism the ability to sue terrorists and foreign states that have materially contributed to terrorism and terrorist-sponsored attacks.

[2] The stated purpose of the JVTA was "to deter terrorism by establishing a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters" (s. 3). The JVTA provides for a direct cause of action (s. 4(1)) and an ability to sue on a foreign judgment obtained for loss or damage suffered as a result of terrorist activities (s. 4(5)).

[3] The respondents all hold judgments issued by courts in the United States for the sponsorship of terrorism by one or more of the appellants – the Islamic Republic of Iran, the Iranian Ministry of Information and Security and the Islamic Revolutionary Guard Corps, a military wing of that ministry (collectively, "Iran"). The respondents sued in Ontario to enforce their judgments under the provisions of the JVTA.

[4] Iran did not defend the respondents' enforcement actions, and ultimately a series of judgments and enforcement orders were granted. Iran then moved unsuccessfully to set aside the judgments and orders in a series of motions before the motion judge.

[5] On these appeals, Iran makes the same submissions it made before the motion judge, arguing that he erred on every legal issue before him. I am satisfied that if these submissions were accepted they would have the effect of rendering enforcement actions under the JVTA a cumbersome and largely unworkable process that would provide very limited rights of recourse to victims of terrorism. Indeed, Iran advances several arguments that appear designed solely to frustrate Parliament's intention and the proper operation of the JVTA.

[6] That result is, of course, contrary to the stated purpose of the JVTA and the clear wording of the statute. Accordingly, I would dismiss the appeals, save for judgments based on acts of terrorism that occurred prior to January 1, 1985. Although the JVTA is expressly retroactive, it does not apply prior to that date, and those judgments cannot be enforced.

B. BACKGROUND

(1) The Terrorist Acts

[7] In these reasons, I will refer to the respondents as follows: the "Tracy respondents"; the "Bennett respondents"; the "Holland respondent"; the "American Center for Civil Justice respondent"; and the "Marthaler group of respondents."

[8] The respondents were awarded significant monetary damages, including substantial punitive damages. The amount of damages from all the American judgments that has been unpaid by Iran totals approximately US$1.7 billion. The judgments arise from several different terrorist attacks. I will describe them briefly in chronological order because, as I will explain later in these reasons, the timing of the terrorist attacks is important.

[9] The Holland respondent's claim arises from the suicide bombing carried out by Hezbollah against the U.S. Marine Barracks in Beirut, Lebanon on October 23, 1983. The attack killed 241 American servicemen, including Petty Officer Holland. The U.S. court found that Iran provided material support, including financing and training, to Hezbollah. The court awarded damages against Iran for the death of Holland on February 1, 2006.

[10] The claims of the Marthaler group of respondents arise from four separate attacks. The attack that was earliest in time was the September 20, 1984 bombing of the U.S. Embassy in East Beirut by the terrorist organization Hezbollah. The explosion killed 14 people, including Army Warrant Officer Kenneth V. Welch. U.S. Marine Officer Richard Paul Brewer was knocked unconscious and wounded. The U.S. court found that Iran provided Hezbollah with military training and financial support for the bombing. It awarded damages for Welch's death on October 15, 2007 and Brewer's injuries on October 15, 2009.

[11] The claim of the American Center for Civil Justice respondent arises from the hostage taking and killing of Lieutenant Colonel William Higgins in Lebanon. On February 17, 1988, Lieutenant Colonel Higgins was kidnapped by the "Organization of the Oppressed on Earth," a name used by Hezbollah. He was held hostage for 18 months under cruel and primitive conditions. When Hezbollah's demands were not met, the terrorists killed Lieutenant Colonel Higgins and released a videotape of his body hanging from the neck. The American court found that Iran had provided material support to Hezbollah by means of training and providing equipment and awarded damages for his death on September 21, 2000.

[12] The Tracy respondents' claims arise from the hostage taking and captivity of Joseph Cicippio and Edward Tracy by Hezbollah in 1986. Mr. Cicippio was ultimately released and returned to the United States in December 1991, but not before his captors broadcast an intention to kill him and had Mr. Cicippio read a farewell message to his family on television. Mr. Tracy, who had been chained to Mr. Cicippio almost constantly, also survived his abduction, but was badly beaten during his captivity. He too was not released until 1991. The American court made findings that Iran provided material support to Hezbollah and entered judgments against Iran on August 21, 2003 with respect to Mr. Tracy and October 7, 2005 with respect to Mr. Cicippio.

[13] The other three attacks to which the claims of the Marthaler respondents relate are described at paras. 11-13, 20-22 and 23-25 of the motion judge's reasons. Chronologically, they occurred in 1992, 1996 and 1997. They all involved bombings by terrorist organizations that the U.S. court found that Iran provided material support and funding to for the purpose of carrying out the bombings. They all resulted in awards of monetary damages to specific claimants within the Marthaler group of respondents.

[14] Finally, the Bennett respondents' claims arise from the bombing of the Frank Sinatra Cafeteria at Hebrew University in Jerusalem, Israel on July 31, 2002. Marla Bennett, who was a 24-year-old student from California enrolled at the university, was killed when operatives of the terrorist organization Hamas bombed the cafeteria. The American court found that Iran had provided significant support to Hamas and awarded Ms. Bennett's estate damages on August 30, 2007.

(2) The Canadian Legislation

[15] The JVTA created a civil cause of action for claims against supporters of terrorism, where the loss or damage is suffered as a result of a foreign state's activities in the nature of acts punishable under the terrorism offences in the Criminal Code. The statutory cause of action is found in s. 4(1):

4 (1) Any person that has suffered loss or damage in or outside Canada on or after January 1, 1985 as a result of an act or omission that is, or had it been committed in Canada would be, punishable under Part II.1 of the Criminal Code, may, in any court of competent jurisdiction, bring an action to recover an amount equal to the loss or damage proved to have been suffered by the person and obtain any additional amount that the court may allow, from any of the following:

(a) any listed entity, or foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or other person that committed the act or omission that resulted in the loss or damage; or

(b) a foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or listed entity or other person that – for the benefit of or otherwise in relation to the listed entity referred to in paragraph (a) – committed 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.

[16] Section 4(5) of the JVTA provides for recognition of foreign judgments that are in respect of terrorism claims:

(5) A court of competent jurisdiction must recognize a judgment of a foreign court that, in addition to meeting the criteria under Canadian law for being recognized in Canada, is in favour of a person that has suffered loss or damage referred to in subsection (1). However, if the judgment is against a foreign state, that state must be set out on the list referred to in subsection 6.1(2) of the State Immunity Act for the judgment to be recognized.

[17] At the same time as the enactment of the JVTA, Parliament also amended the State Immunity Act, R.S.C 1985, c. S-18 ("SIA") to create an exception to the general rule of state immunity from court jurisdiction and enforcement. The new statutory exception applies only to states that are listed as supporters of terrorism by the Governor in Council pursuant to s. 6.1(2) of the SIA. On September 7, 2012, Canada listed Iran as a foreign state that "supports terrorism" pursuant to s. 6.1(2). That same day, Canada closed its embassy in Tehran, suspended diplomatic relations with Iran and expelled Iranian diplomats from Canada.

[18] Section 6.1(1) of the amended SIA provides:

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.

(3) Enforcement Proceedings

[19] The Marthaler, Holland and American Center for Civil Justice respondents served statements of claim on Iran to recognize and enforce their American judgments in Ontario. Iran did not defend the actions and three separate default judgments were signed by Corbett J. on October 3, 2014.

[20] The Tracy respondents commenced proceedings in Nova Scotia for an order recognizing their U.S. judgments. Iran did not defend the proceeding. The Nova Scotia Supreme Court granted an order dated March 22, 2013 recognizing those U.S. judgments (the "Nova Scotia Order").

[21] The Tracy respondents then commenced an application in Ontario under the Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5 ("REJA"), for registration of the Nova Scotia Order. Chapnik J. granted an order ex parte on May 22, 2013, registering the Nova Scotia Order as an order of the Ontario court (the "Recognition Order").

[22] In January 2014, the Tracy respondents moved for a declaration that certain Iranian assets, including funds from a Bank of Nova Scotia account, funds from a Royal Bank of Canada account, a property at 290 Sheppard Avenue West in Toronto and a property at 2 Robinson Avenue in Ottawa (collectively, the "Iranian Assets") are beneficially owned by Iran and thus available for execution. D.M. Brown J. (as he then was) granted the order on March 17, 2014.

[23] The Bennett respondents commenced an action on September 13, 2012 for recognition and enforcement of their U.S. judgment in Ontario, the day after the JVTA came into force. They obtained an ex parte Mareva injunction from Allen J. on October 11, 2012 in relation to 290 Sheppard Avenue and 2 Robinson Avenue. They obtained a continued Mareva injunction from E. MacDonald J. on October 31, 2012.

[24] On February 1, 2013, the Department of Foreign Affairs issued a certificate certifying that a diplomatic mission of the Islamic Republic of Iran was established in 1956. The certificate listed the addresses of the mission, which did not include 290 Sheppard Avenue and 2 Robinson Avenue. The listed premises were noted as continuing to enjoy the privileges and immunities under the Foreign Missions and International Organizations Act, S.C. 1991, c. 41 ("FMIOA").

[25] On August 13, 2013, the Department of Foreign Affairs issued an amended certificate. This certificate listed real properties and certain bank accounts, all of which were said to continue to enjoy the privileges and immunities under the FMIOA. None of the Iranian Assets was included in the amended certificate.

[26] On September 4, 2013, the Department of Foreign Affairs wrote to counsel for the Tracy respondents and provided a list of Iranian diplomatic and non-diplomatic properties that it had identified. The 2 Robinson Avenue and the Bank of Nova Scotia and Royal Bank of Canada accounts were listed in the non-diplomatic section of the list. Reference to the 290 Sheppard Avenue property was not found in either list. The Department of Foreign Affairs also advised in the letter that a list of Iranian properties would be included on its website in the near future.

[27] In January 2016, the appellants brought a motion before the motion judge seeking to set aside, vary or stay each of the following: (1) the Recognition Order and all related writs of seizure and sale; (2) the order of D.M. Brown J., finding that the Iranian Assets were subject to execution, and any writs of seizure and sale flowing from the order; (3) the judgments of Corbett J. enforcing the U.S. judgments in the Holland, Marthaler and American Center for Civil Justice claims; and (4) the order of E. Macdonald J. continuing the Mareva injunction in relation to the Bennett respondents' claims.

C. Decision Below

[28] The motion judge dismissed the appellants' motions. He also heard and granted a motion for summary judgment brought by the Bennett respondents for recognition of their American judgment. While the details of his reasons will be considered in the analysis section of my reasons below, in order to frame the issues on the appeal, I will touch upon the motion judge's principal holdings in this section.

[29] The motion judge held that the JVTA operates independently from the SIA in respect of a plaintiff's entitlement to commence proceedings against a state sponsor of terrorism. In his view, the legislation was intended to provide a free-standing procedural and substantive mechanism for a plaintiff's recovery of losses caused by the acts of state sponsors of terrorism.

[30] The motion judge concluded that s. 4(5) of the JVTA does not require a plaintiff to establish that the foreign state supports terrorism within the meaning of s. 2.1 of the SIA if the foreign state is on the list referred to in s. 6.1(2) of the SIA.

[31] With respect to the reference in s. 4(1) of the JVTA to the date of January 1, 1985, the motion judge concluded that the date refers to when the losses were suffered and not the date that a terrorist attack occurred. Accordingly, he found that even if a terrorist attack predated January 1, 1985, as long as the losses or damages continued to flow after that date, an action can be brought under s. 4(1) of the JVTA.

[32] The motion judge rejected Iran's argument that s. 4(1) requires the respondents to prove beyond a reasonable doubt the commission of a specific criminal offence under the Criminal Code. Rather, the reference to the provisions of the Criminal Code contained in s. 4(1) of the JVTA was meant to define the type of conduct that constitutes an act of terrorism under the JVTA, and a claim under s. 4(1) need only be proved on the civil standard of a balance of probabilities. The motion judge further held that he was required to accept the American courts' findings of fact and should not adjudicate the merits of the respondents' claims.

[33] The motion judge also concluded that the respondents' enforcement proceedings were not statute barred because the limitation period did not begin to run until a cause of action and a defendant who is capable of being sued existed. Thus, he concluded that the respondents' claims arose, at the earliest, on September 7, 2012, when Iran was added to the list of state sponsors of terrorism under the SIA.

[34] In finding that the American judgments meet the criteria for being recognized under Canadian common law, the motion judge rejected the argument advanced by Iran that the judgments violate international law. He concluded that, in assuming jurisdiction over the respondents' claims pursuant to the Foreign Sovereign Immunities Act, 1976, 28 U.S.C. 97 (the "FSIA"), the American courts did so on the same basis as a Canadian court would pursuant to a similar statutory scheme in Canada, namely, the JVTA. He further found that the fact that the American judgments awarded damages greatly in excess of what would likely be awarded in Canada does not offend any public or moral interest in Canada such that the judgments would be rendered unenforceable in Canada.

[35] The motion judge rejected Iran's submission that it is entitled to immunity from execution of the U.S. judgments recognized in Ontario. He found that the date of the respondents' attempted execution against the Iranian Assets is the appropriate date to consider in determining whether the Iranian Assets can be attached and executed against. The dates of the attempted enforcement by the respondents against the Iranian Assets post-dated the enactment of s. 12(1)(d) of the SIA, which removed immunity from execution. Further, he found that diplomatic immunity cannot be asserted to avoid execution in Canadian court proceedings unless the Minister of Foreign Affairs (the "Minister") has recognized the diplomatic status of the property sought to be attached.

[36] Iran submitted that Nova Scotia was not a proper forum for the Tracy respondents to apply to have their American judgments recognized under the JVTA because Iran has no assets, is not ordinarily resident and does not conduct business in Nova Scotia. The motion judge rejected this argument, finding that these respondents were entitled to apply in Nova Scotia to have their American judgments recognized in that province. According to the motion judge, the Supreme Court of Canada's decision in Chevron Corp. v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69, establishes that it is not necessary to have a real and substantial connection between Nova Scotia and the proceeding to enforce the American judgments. Accordingly, he declined to set aside the Recognition Order.

[37] The motion judge released a costs endorsement on February 8, 2017. He ordered that Iran pay costs as follows: to the Holland, Marthaler and American Center for Civil Justice respondents, costs of $142,970.85; to the Tracy respondents, costs of $96,425.73; and to the Bennett respondents, costs of $62,510.73.

D. ISSUES

[38] The issues raised on these appeals and my conclusions on each issue may be summarized as follows:

(i) Was Iran's immunity from the jurisdiction of the Canadian courts removed by the JVTA or s. 6.1 of the SIA?

Yes. By virtue of the JVTA and the amendments to the SIA, Iran's state immunity has been lifted with respect to its sponsorship of terrorist acts that occurred on or after January 1, 1985, but not for sponsorship of terrorist activities that occurred before that date. The only proof of the support of terrorism necessary to maintain an enforcement action under s. 4(5) of the JVTA is the listing of the state sought to be sued under s. 6.1(1) of the SIA. The trial judge properly relied upon the facts found in the U.S. judgments, and the respondents were not required to prove the commission of a specific criminal offence beyond a reasonable doubt.

(ii) Does the JVTA require or permit Canadian courts to recognize the American judgments?

Yes. Subsection 4(5) of the JVTA sets forth the process for recognition of the American judgments. None of the arguments advanced by Iran defeat recognition. There was ample evidence that Iran's conduct would be punishable under the Criminal Code. The claims are not time-barred, as the cause of action did not begin to run until Iran was listed under s. 6.1(1) of the SIA. The American courts had jurisdiction to grant the judgments. Finally, recognition of the judgments is not contrary to Canadian public policy.

(iii) Did the motion judge err when he found that Iran's immunity from enforcement or attachment was removed by s. 12(1)(d) of the SIA?

No. State immunity from enforcement was stripped from Iran because the underlying U.S. judgments were based on Iran's support of terrorism and the Iranian Assets do not have any cultural or historical value.

(iv) Did the motion judge err when he found that Iran's bank accounts and two real properties were not protected by diplomatic immunity?

No. The time for determination of the exigibility of the Iranian Assets is the time of the purported execution. The Minister determines the diplomatic status of the Iranian Assets. There was a solid evidentiary basis for the motion judge to conclude that the Iranian Assets were not protected by diplomatic immunity. The issue of notice of the loss of diplomatic immunity is not relevant because, given the existence of international sanctions against Iran, notice would have had no practical effect.

(v) Did the motion judge err by failing to set aside the Recognition Order?

No. Iran missed the statutory deadline to move to set aside the Recognition Order. It has not sought leave to extend the deadline or offered an explanation as to why the deadline was missed. Iran's complaint about the manner of service of the Recognition Order is without merit.

(vi) Did the motion judge err in his application of the test for setting aside the default judgments?

No. The motion judge applied the correct test. Iran did not meet its onus in establishing that even a single factor militated in favour of setting aside the default judgments. In addition, the interests of justice do not support such an order.

(vii) Did the motion judge err in awarding costs to the respondents?

No. The awarding of costs was consistent with the text of both the JVTA and the SIA. There is no principled reason why Iran should be immune from a costs award. The suggestion otherwise is contrary to binding Supreme Court of Canada jurisprudence.

Each of these issues will be considered in greater detail in the next section of my reasons.

E. ANALYSIS

1. Iranian State Immunity from Canadian Jurisdiction

[39] On the issue of its immunity, Iran makes a general argument regarding statutory interpretation, submitting that any interpretation of the JVTA and SIA that results in the removal of its state immunity violates the statutory interpretation presumptions of compliance with international law and against retroactivity. Related to that general argument is the specific argument that these presumptions prohibit the lifting of state immunity for terrorist attacks that occurred prior to January 1, 1985. Iran further submits that the motion judge erred in his analysis of this issue when he: (i) refused to require the respondent to prove that the "state supporter of terrorism" exception applied; and (ii) relied on s. 83.03 of the Criminal Code without considering which crimes are alleged to have been committed. I will address each of these arguments in turn.

(a) Statutory Interpretation

[40] Iran submits that any interpretation of the JVTA that leads to the lifting of its state immunity violates both the presumption against retroactive or retrospective interpretation of statutes and the presumption of compliance with international law.

[41] The presumption against retrospective or retroactive statutory interpretation is based on the policy that everyone subject to the jurisdiction of Canadian courts is entitled to advance knowledge of the laws and the ability to arrange their affairs based on settled expectations: R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, paras. 42-43. Iran submits that any non-prospective interpretation of the JVTA would represent a departure from this policy and eliminate a well-established immunity relied on by sovereign states in ordering their affairs and in international relations generally.

[42] The presumption of compliance with international law presumes that domestic legislation will be interpreted in a manner that is consistent with or minimizes contravention of international law: R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 40. State immunity is recognized as a general rule of customary international law: Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176, at para. 38.

[43] These presumptions are important tools in statutory interpretation, but they are subject to rebuttal by Parliament through the use of clear statutory language. In short, Parliament has the power to make legislation retroactive and it has the power to ignore international law. Parliamentary sovereignty requires courts to give effect to a statute that demonstrates such an unequivocal legislative intention, absent constitutional concerns, which are not raised here.

[44] The presumption against retroactivity can be rebutted either by express words or by necessary implication: "All that is required is some sufficient indication that the legislation is meant to change the law for the past as well as the future": Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at p. 772.

[45] Similarly, the presumption of compliance with international law is rebutted where Parliament expresses a clear intention to default on an international obligation: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53.

[46] A plain reading of the JVTA, together with the contemporaneous amendments to the SIA, establishes that Iran's immunity from civil proceedings related to terrorism was lifted in September 2012, exposing them to liability for acts of terrorism they supported that occurred on or after January 1, 1985. Thus, the presumption of compliance with international law and against retroactivity has been rebutted, to this extent, by the clear wording of the statutes.

[47] The question that remains is whether Iran's state immunity is lifted for terrorist activities that took place prior to January 1, 1985. The issue comes down to this question: can an Ontario court recognize a foreign judgment against a state sponsor of terrorism where the terrorist attacks in question occurred before January 1, 1985 but the resulting harm continued to be suffered after that date? Iran says no, the respondents say yes. This question matters because the U.S. judgments in favour of two claimants in the Marthaler group of respondents, Welch and Brewer, and the respondent Holland arose out of Iranian-supported terrorist attacks that occurred before January 1, 1985, but the resulting harm continued to be suffered after that date.

[48] Iran submits that the trial judge erred when he decided that judgments based on terrorist attacks prior to 1985 could be recognized by a Canadian court if the damages continued to be suffered after January 1, 1985. It argues that, to the extent that s. 6.1(1) of the SIA lifts immunity at all, it is only for terrorist activity that took place after January 1, 1985.

[49] The respondents rely on a purposive reading of s. 4(5) of the JVTA, which was intended to make it easier to recognize and enforce judgments obtained abroad similar to those that could be obtained under s. 4(1) of the JVTA. Thus, the respondents argue that the statute's words should be interpreted broadly, with a view to promoting access to justice for victims of terrorism. Therefore, they submit that the JVTA should be read as a standalone basis for stripping state immunity.

[50] In my view, the motion judge erred in law in his interpretation of the JVTA and the SIA regarding this issue. A careful review of s. 4(5) of the JVTA makes clear that Iran's state immunity is lifted only to the extent permitted by the SIA.

[51] To understand the temporal limits of s. 4(5) of the JVTA, it is first necessary to take a step back and consider the law of state immunity in Canada. Subsection 3(1) of the SIA demonstrates Canada's acceptance of the well-recognized principle of customary international law that states are immune from the jurisdiction of other states; it provides: "Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada."

[52] The rule in customary international law that sovereign states enjoy absolute immunity from the jurisdiction of other states has evolved over time, resulting in some exceptions to this general rule recognized at common law: Kuwait Airways Corp. v. Iraq, 2010 SCC 40, [2010] 2 S.C.R. 571, at para. 13. A number of exceptions have already been codified by Parliament in ss. 4 - 8 of the SIA. Today, it is accepted that these statutory exceptions are exhaustive and that there are no further exceptions at common law: Steen v. Islamic Republic of Iran, 2013 ONCA 30, 114 O.R. (3d) 206, at paras. 24-28. Bill C-10, Safe Streets and Communities Act, S.C. 2012, c. 1, the bill that enacted the JVTA and amended the SIA in 2012, simply added a new exception for state support of terrorism.

[53] The Legislative Summary of Bill C-10 reflects Parliament's awareness of its obligation under international law to respect state sovereignty, but it also evidences a clear intention to carve out a new exception to state immunity for the purposes of (i) deterring terrorism and (ii) making it easier for plaintiffs to make claims against states that support terrorism and that have assets in Canada that could assist in satisfying a judgment: see Canada, Parliament, Bill C-10: An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts, by Laura Barnett, Tanya Dupuis, Cynthia Kirkby, Robin MacKay, Julia Nichol and Julie Béchard, Legislative Summary 41-1-C10-E (revised February 17, 2012). The authors of the summary write at p. 14:

Although the JVTA itself does not explicitly state that only foreign states on the list established by the Cabinet under the new section 6.1(2) of the State Immunity Act may be sued using the cause of action described in section 4(1) of the JVTA, the practical effect of the amendments introduced by the State Immunity Act is that only listed foreign states may be sued. This is because the amendments to the State Immunity Act create an exception to state immunity only for listed states that support terrorism.

[54] As the motion judge recognized, related legislation forms part of the legal context in which an act of Parliament is passed: see ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 59. Parliament must be taken to have been aware of the general immunity afforded to states and the need to eliminate that immunity to enable plaintiffs to sue states that sponsor terrorism. I would add that where there are two possible interpretations of two different statutes that relate to the same subject matter, the interpretation that achieves maximum harmony between the statutes should be preferred: see Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 121.

[55] The purpose of the amendments to the SIA in Bill C-10 was to permit actions under the new JVTA. Parliament recognized that the JVTA would be ineffective if it did not carve out an exception to the general rule in the SIA. Otherwise, the two statutes would be in the following conflict: the JVTA would purport to create a new cause of action, but immunity would not have been lifted under the SIA, and s. 3(1) of the SIA would hold that Iran was immune from prosecution under the JVTA. For this reason, Parliament amended the SIA at the same time that it enacted the JVTA; the two statutes were intended to work in symmetry to permit the effective operation of the JVTA.

[56] It cannot be the case that Parliament amended the SIA to permit a cause of action under the JVTA but chose to have a more expansive retrospective application in the JVTA than in the SIA. Such an interpretation would be inconsistent with the purpose of the amendments to the SIA, which permit actions under the JVTA but only to the extent that state immunity is lifted by the SIA. That interpretation would regard state immunity as having been lifted for a broader array of conduct under the JVTA than is permissible under the SIA. Immunity for the pre-1985 conduct for which damages would be available under the JVTA would not be lifted under the SIA, and there would be a conflict between the two statutes.

[57] The respondents submit that Iran's interpretation is inconsistent with opening words of s. 4(1) of the JVTA that the direct cause of action is available to any person who has "suffered loss or damage in or outside Canada on or after January 1, 1985 as a result of an act or omission …" While the wording of s. 4(1) is regrettably not clear, the words relied upon must be read in the context of the two interrelated statues.

[58] To the extent that it could be argued that there is some ambiguity, this is an appropriate place to employ the presumption of compliance with international law and the presumption against retroactivity. The first few words of s. 4(1) of the JVTA, which suggest an ability to sue on terrorist actions carried out prior to January 1, 1985, do not constitute a sufficiently clear intention from Parliament to defeat either presumption.

(b) Proof of State Sponsorship

[59] Iran submits that the motion judge erred when he refused to require the respondents to prove that the "state supporter of terrorism" exception applied so as to lift state immunity. Iran says that a claimant must prove not only that it was listed under the SIA s. 6.1(2) but also that it supported terrorism.

[60] This submission is contrary to the plain language of s. 4(5) of the JVTA, which provides that a court "must recognize" a judgment of a foreign court where: (i) the criteria under Canadian law for recognition in Canada are met; (ii) the judgment is in favour of a person who has suffered loss or damage referred to in s. 4(1); and (iii) if the judgment is against a foreign state, the state is set out in the list of state supporters of terrorism referred to in s. 6.1(2) of the SIA. As the motion judge recognized, the second and third requirements would be redundant if the judgment creditor also had to prove that the debtor state supported terrorism.

[61] Iran's argument would also run counter to the purpose of the JVTA, being the facilitation of claims against state sponsors of terrorism. Parliament intended that in order to facilitate civil claims all that need be established was that the sovereign state be listed under the SIA. As the preamble to the JVTA affirms "certain states that support terrorism should not benefit from state immunity in this regard."

(c) Proof of Criminal Conduct

[62] Iran submits that the respondents had to prove beyond a reasonable doubt specific criminal acts committed by the appellants under Part II.1 of the Criminal Code and that the appellants cannot rely on the findings of fact made by the U.S. courts to establish liability under the JVTA.

[63] I disagree. I accept the analysis of the motion judge on this point. Parliament did not intend to require plaintiffs to prove the commission of a specific criminal offence under this part of the Criminal Code. Rather, the requirement under s. 4(1)(b) of the JVTA was meant to define the type of conduct that constitutes an act of terrorism under the JVTA.

[64] Again, the Legislative Summary of Bill C-10 is of some assistance in understanding Parliament's intention in referring to the terrorism provisions of the Criminal Code in s. 4(1)(b) of the JVTA. In discussing arguments concerning the constitutionality of the JVTA, the authors of the summary note at p. 6:

Alternatively, it might be possible to view the JVTA as functionally connected to Parliament's power to legislate in relation to criminal law (section 91(27) of the Constitution Act, 1867) because the civil remedy is available only if plaintiffs can show that they have suffered loss or damage as a result of "an act or omission that is, or had it been committed in Canada would be, punishable under Part II.1 of the Criminal Code" (clause 4 of the JVTA). Whether the courts would uphold the statute on this basis is, however, open to question, given that it does not appear that securing a criminal conviction under Part II.1 of the Code is a precondition to initiating a civil action under the JVTA. [Emphasis added.]

[65] Reading in a criminal standard of proof into an element of the cause of action under the JVTA defeats the clear legislative purpose of the statute. It would take tremendous financial resources, perhaps beyond any potential financial recovery, to prove a state's material support of a terrorist organization, and a connection to a particular terrorist act, beyond a reasonable doubt. Moreover, imposing a criminal standard to an element of the cause of action would be inconsistent with Canadian jurisprudence that, in civil cases, there is only one standard of proof – the standard of "balance of probabilities": F.H. v. McDougall, 2008 SCC 53, [2008] 2 S.C.R. 41, at para. 40.

[66] The role of a court in considering whether the criteria under s. 4(5) of the JVTA are met does not extend to reconsidering or reviewing the factual findings underlying the foreign judgments: Kuwait Airways, at para. 23; and Chevron, at para. 44. Instead, the court's function in the respondents' actions was to consider whether the requirements of s. 4(5) of the JVTA were met within the framework of the applicable Canadian law on the basis of the findings of fact made by the American courts. It is also appropriate to take into account Iran's deemed admissions, having been noted in default and therefore deemed to admit the allegations in the statements of claim. Any argument that the court must look behind the foreign courts' factual findings and conduct its own inquiry is contrary to the plain language of the JVTA and the jurisprudence on the enforcement of foreign judgements.

(4) Recognition and Enforcement of the U.S. Judgments

1. Iran's Position

[67] Iran submits that Parliament did not leave the question of recognition to be determined solely by common law criteria set out in cases such as Beals v. Saldanha, 2003 SCC 72, [2003] 2 S.C.R. 416. Instead, Parliament imposed additional statutory criteria that must be satisfied if a Canadian court is to recognize these types of foreign judgments. Subsection 4(5) of the JVTA provides:

A court of competent jurisdiction must recognize a judgment of a foreign court that, in addition to meeting the criteria under Canadian law for being recognized in Canada, is in favour of a person that has suffered loss or damage referred to in subsection (1). However, if the judgment is against a foreign state, that state must be set out on the list referred to in subsection 6.1(2) of the State Immunity Act for the judgment to be recognized. [Emphasis added.]

[68] Iran submits that the motion judge erred when he failed to consider whether all the criteria in s. 4(5) of the JVTA for recognition of this type of foreign judgment had been satisfied. Accordingly, in this section of my reasons I will examine each criterion to determine if the motion judge erred in his analysis.

(d) Proof of Loss under the JVTA

[69] Iran raises a series of arguments to the effect that the motion judge erred in finding that there was a sufficient evidentiary basis to conclude that the respondents had satisfied the requirement of s. 4(5) of the JVTA that they have "suffered loss or damage referred to in subsection (1)". In this case, the respondents rely on s. 4(1)(b). I will deal with each of these arguments below.

[70] First, according to Iran, the Governor in Council listed it under the SIA on the basis that the "politicians" reasonably believed it to be a supporter of terrorism. Iran submits that court proceedings require more than a reasonable belief: claimants must prove in court that Iran supported terrorism and that its conduct, if carried out in Canada, would have constituted a criminal offence.

[71] This submission has no merit. The inclusion of the reference to terrorism offences in s. 4(1)(b) of the JVTA could not have been intended to require proof of the actual commission of an offence – rather, as noted above, it references conduct within the scope of Part II.1 to establish the type of conduct that triggers the direct cause of action created by the JVTA. Requiring a judgment creditor seeking enforcement under s. 4(5) of the JVTA to prove that the debtor's acts actually contravened the Criminal Code would be inconsistent with the purpose of the JVTA and the overall purpose of a recognition and enforcement action. It would also undermine Parliament's intention that the JVTA be retroactive; if Iran's interpretation were accepted, there would be no recovery under the JVTA for loss or damage suffered from a state-sponsored terrorist act that occurred prior to December 24, 2001, the date when the relevant provisions in Part II.1 of the Criminal Code provisions came into effect.

[72] Second, Iran submits that the motion judge erred when he failed to consider that s. 83.03 of the Criminal Code requires that Iran provide property or financial or other related services knowing they will be used by or will benefit a "terrorist group" as defined in s. 83.01(1). "Terrorist group" includes a "listed entity". Hamas and Hezbollah were only listed in 2002 as terrorist entities under the Order Accepting the Recommendation of the Minister of Public Safety and Emergency Preparedness Concerning the Two-Year Review of the List of Entities, S.I./2012-103. All of the events underlying the U.S. judgments obtained by the respondents occurred prior to the addition of Hezbollah and Hamas to the list in 2002. It is submitted by Iran that the respondents cannot rely on a list that was created years after the relevant events to establish that Hamas or Hezbollah were terrorist groups within the meaning of (the subsequently enacted) s. 83.03 of the Criminal Code at the time of the attacks.

[73] I would not give effect to this argument. It is true that Hamas and Hezbollah were only listed as terrorist groups in 2002, but the JVTA does not require that the act or omission be punishable at the time it was committed. What is relevant is whether it would be punishable today.

[74] Third, Iran submits that the motion judge erred with respect to the actus reus because a finding by a U.S. court under the FSIA that a U.S. citizen suffered personal injury or death caused by an act of torture, extrajudicial killing, aircraft sabotage or hostage taking, or the provision of material support or resources for such an act by a foreign state (even if admissible in Canada), does not provide an evidentiary basis for concluding that Iran committed or would have committed an offence under s. 83.03 of Canada's Criminal Code.

[75] I disagree. The motion judge properly found, on the basis of the U.S. courts' findings of fact and the appellants' deemed admissions that the respondents' losses resulted from acts on the part of Iran that would be punishable under the Criminal Code. The motion judge was entitled to rely on the American courts' findings and the deemed admissions. He found all three elements of the offence under s. 83.03(b) were met: Hamas and Hezbollah are both terrorist groups; Iran provided them with significant financial support; and Iran knew that its support would be used to facilitate and carry out terrorist activity.

[76] Fourth, the motion judge found that the U.S. judges' reasons established that "significant financial support" was provided to Hamas or Hezbollah. Iran submits that this is not the same thing as providing "financial services" as required by s. 83.03. I reject this submission. The criminal offence created by s. 83.03 of providing a person with "financial services" with knowledge that they will be used to carry out terrorist activities is capable of capturing a broad range of conduct. I see no reason to interfere with the motion judge's conclusion that the provision of significant financial support to terrorist organizations amounts to providing financial services under s. 83.03.

(e) Limitation Defences

[77] Iran submits the motion judge erred when he found that the American judgments are "statutory claims" under s. 4(5) of the JVTA and their recognition is not barred by any limitation period. Its argument is as follows. The subject claims were common law claims for recognition and they could always have been brought even in the absence of the JVTA, subject to being stayed by virtue of state immunity. Moreover, these proceedings are barred either by the basic two-year limitation period under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, or the former six-year limitation period in s. 45(1)(g) of the predecessor Limitations Act, R.S.O. 1990, c. L.15, each of which apply to the recognition of foreign judgments: Independence Plaza 1 Associates, L.L.C v. Figliolini, 2017 ONCA 44; and Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.). Iran says that nothing in the JVTA or the SIA relieves the respondents of the limitation periods that apply to the enforcement of foreign judgments. In particular, the suspension of limitation periods in s. 4(3) of the JVTA does not apply to proceedings under s. 4(5). According to Iran, Parliament turned its mind to the possibility of statute-barred claims and specifically provided an extension of time for claims under s. 4(1) but not for those under 4(5).

[78] I see no error in the motion judge's conclusion that the respondents' claims were not barred by the current Limitations Act, 2002 or its predecessor because they were not discovered until the JVTA came into force in 2012. Under s. 5(1)(iv) of the current act, the respondents' claims would not have been discovered until, "having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it." Prior to September 7, 2012, Iran was not added to the list of state sponsors of terrorism in the SIA and a proceeding under s. 4(5) of the JVTA was not possible. Proceedings to enforce the U.S judgments were not otherwise possible at common law because Iran was immune from civil suit in Canada: Steen, at paras. 24-28. Thus, even if the proceedings could always have been commenced before September 7, 2012, subject to being stayed by virtue of state immunity, it was not legally appropriate for the respondents to commence them until that date and, as the motion judge concluded, they were not discovered until that date.

[79] The purpose of the appropriateness criterion in s. 5(1)(iv) of the Limitations Act, 2002 is to deter needless litigation: Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325, at para. 17. Given that a stay of the respondents' proceedings on the U.S. judgments would be inevitable if they were brought at common law, it would have been fruitless to commence them before 2012 when the JVTA and SIA carved out an exception to Iran's immunity. They were therefore not appropriate or discoverable before 2012.

[80] The same considerations apply to the 1990 Limitations Act, as the six-year limitation period applicable to proceedings on a foreign judgment did not begin to run under s. 45(1)(g) of that act until "the cause of action arose." Here the respondents' claims on the U.S. judgments did not "arise" within the meaning of that provision until September 7, 2012 when Iran was added to the list in the SIA.

[81] I do not accept Iran's submission that the enactment of s. 4(1) of the JVTA and addition of Iran to the list in the SIA in 2012 was only a procedural modification to the respondents' pre-existing claim for recognition and enforcement of the U.S. judgments. In my view, the respondents' claims only came into substantive existence in 2012. In their applications for recognition and enforcement of the U.S. judgments, they all specifically relied on s. 4(5) of the JVTA, which did not exist before 2012. They did not rely on a pre-existing common law cause of action that was somehow procedurally modified in 2012.

[82] In any event, as this court held in Steen, there are no exceptions to state immunity at common law. The respondents' claims were only made possible by the JVTA and SIA. The inevitability of a stay on a claim brought outside these statutes leads me to conclude that these statutes are more than merely procedural considerations and are in actuality the true sources of the respondents' claims for recognition and enforcement.

[83] I conclude that the respondents' cause of action under the JVTA was discoverable, or arose, only after the JVTA was enacted and Iran was added to the list in the SIA at the earliest. All of the respondents' claims were commenced well within the ensuing two-year and six-year limitation periods.

(f) Jurisdiction

[84] Iran submits that America had no connection to the events or the parties other than that the respondents were U.S. nationals and the FSIA purported to establish domestic statutory jurisdiction. It argues that the motion judge erred when he failed to consider that the American courts' assumption of jurisdiction was based entirely on an American statute being applied unilaterally and retroactively to acts by third parties in other countries. It further argues that America did not exercise a "properly restrained" jurisdiction. In the absence of any significant factor connecting Iran to the American or Canadian courts, Iran submits that it could not have expected that the Canadian courts would enforce American judgments obtained in breach of international law.

[85] I do not accept this argument. A foreign court will be found to have properly assumed jurisdiction where it had a real and substantial connection with the litigants or with the subject matter in dispute: Chevron, at para. 21.

[86] The American courts properly assumed jurisdiction over the respondents' actions against the appellants because they were commenced pursuant to an American statute that authorized them. Unless the FSIA offends Canadian public policy, which will be discussed below, as a matter of comity it was correct for the motion judge not to look behind the American statutory authority. Moreover, as the motion judge recognized, the FSIA and the JVTA provide essentially the same basis for a court to assume jurisdiction over a foreign state in a claim for damages resulting from a terrorist attack in a foreign country.

(g) Canadian Public Policy

[87] Once it is determined that a foreign court properly assumed jurisdiction, a foreign judgment is prima facie enforceable. The burden then shifts to the foreign defendant to establish the availability of a defence to the recognition of a foreign judgment: Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at para. 39.

[88] Iran asserts as a defence that the judgments were contrary to Canadian public policy, advancing the following five arguments:

(i) The American courts' application of a "long arm" retroactive statutory jurisdiction contravened the fundamental morality of the Canadian legal system.

(ii) The American legislation discriminates on the basis of national identity and offends the principle of comity in that it fails to provide any mechanism to recognize and enforce Canadian judgments arising out of the JVTA.

(iii) The American judgments contravene public international law, as they all predate the 2012 amendments to the SIA and the enactment of the JVTA.

(iv) The American judgments are statute-barred.

(v) The American judgments are grossly excessive, as the Canadian cap on non-pecuniary damages, adjusted for inflation as of June 2016, is $367,806.00.

[89] I would not give effect to any of these arguments. Before considering them, I note that the defence of public policy has a high threshold. To be declared unenforceable on the ground of public policy, enforcement of the judgment must violate "conceptions of essential justice and morality": Beals, at para. 222, citing Boardwalk Regency Corp. v. Maalouf (1992), 88 D.L.R. (4th) 612 (Ont. C.A.), at p. 615.

[90] Arguments three and four can be dealt with summarily, as they have been considered above. The recognition of the foreign judgments under the JVTA may violate international law, but Parliament has expressly authorized their recognition. In addition, for the reasons set forth above, the judgments are not time-barred.

[91] With respect to the first argument, I am not satisfied that the American statute offends Canadian legal morality. As proof, I need only point to the JVTA, which is substantially similar to the FSIA. It is difficult to see how American legislation that Parliament has chosen to emulate could be considered morally offensive to our legal system.

[92] The terrorist attacks out of which the respondents' U.S. judgements arise are repugnant to civilized society. The fact that a foreign government would engage in the sponsorship of such atrocities is chilling. Both the JVTA and the FSIA are designed to use the countries' respective civil justice systems to fight the state sponsorship of terrorism. There is nothing offensive about using peaceful legislative means to combat terrorism.

[93] Regarding Iran's second argument, the inclusion of a requirement that the plaintiff or the victim in the proceedings under the "state-sponsored terrorism" exception to the FSIA be a U.S. national is not discriminatory and, in any event, does not offend Canadian public policy. The FSIA does not use the term "citizen" but specifically uses the term "national," which the U.S. Code defines as someone who, though not a citizen of America, owes permanent allegiance to America. In addition, the requirement is broader than Iran describes – it is met if the plaintiff or victim is an American national, a member of the American armed forces or an employee of the American government. Iran's position also ignores the similarities between the FSIA and the JVTA. The JVTA allows a court to hear a matter based solely on the plaintiff's Canadian citizenship or residency: see s. 4(2).

[94] The fact that there is no explicit mechanism in the FSIA for the recognition of foreign judgments is not determinative. Iran has filed an expert opinion from an American law firm to the effect that a judgment granted under the JVTA would not be enforceable in the United States. I note that this issue has not been determined by the American courts. Assuming, without deciding, that the opinion is correct, this fact would not, in my view, amount to a violation of Canadian public policy. Such a lack of reciprocity can hardly be considered to violate conceptions essential to Canadian justice and morality.

[95] With respect to Iran's fifth argument, the quantum of the judgments, and specifically the American courts' application of punitive damages law, cannot ground a defence of public policy. The Supreme Court of Canada expressly rejected the position that the amount of a foreign judgment alone could render its recognition and enforcement contrary to Canadian public policy in Beals, at para. 77.

[96] Recognizing and enforcing large damage awards against Iran is consistent with the public policy animating the JVTA to "enable plaintiffs to bring lawsuits against terrorist and their supporters." The fact that the American courts award damages in excess of the cap for non-pecuniary damages recognized in Canada does not offend any basic conception of morality. To the contrary, awarding damages that may have a deterrent effect is a sensible and measured response to the state sponsorship of terrorism and is entirely consistent with Canadian legal morals.

(5) State Immunity from Execution of the U.S. Judgments in Canada

[97] Iran submits that the jurisdictional immunity in s. 3 of the SIA and the immunity from attachment and execution in s. 12 are distinct immunities. It argues that immunity from the jurisdiction of a court does not encompass immunity from execution. Iran submits that even after a court has decided that Iran does not enjoy immunity from adjudication and has awarded or recognized a money judgment, it must still satisfy itself that the conditions for lifting execution immunity have been satisfied.

[98] In my view, Iran does not enjoy state immunity from execution.

[99] Section 12(1) provides that the property of a foreign state that is located in Canada is immune from attachment and execution, subject to specified exceptions. Section 12(1)(d) of the SIA strips a state of execution immunity where:

(d) 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.

There is no question that Iran is listed under s. 6.1(2) of the SIA. Thus, it is incumbent on the respondents to prove: (i) the underlying judgment was based on Iran's support for terrorism; and (ii) the assets do not have cultural or historical value.

[100] The respondents' American judgments were all obtained in proceedings where the respondents alleged and the American courts found that Iran had engaged in state sponsorship of terrorism. Therefore, the first of the two criteria is established.

[101] The second criterion, being the "cultural or historical value" exception to s. 12(1)(d) does not apply because Iran's affiant, Ms. El-Husseini, conceded in cross-examination that the two real properties – 2 Robinson Avenue and 290 Sheppard Avenue – have no cultural or historical value to Iran. Obviously, the bank accounts would not meet this criterion.

(6) Diplomatic Immunity

1. Principles

[102] Diplomatic immunity is a long-standing principle of international law and entails the protection of a diplomatic mission's property and people from state interference and detention, as well as a duty of protection by the receiving state: see Reference as to Powers to Levy Rates on Foreign Legations, [1943] S.C.R. 208, per Duff C.J. These special immunities for diplomatic missions have been consolidated in the Vienna Convention on Diplomatic Relations, 18 April 1961, 50 U.N.T.S. 95 ("Vienna Convention"). Canada and Iran are both signatories to this convention.

[103] The stripping of Iran's state immunity does not determine what diplomatic immunities, if any, it enjoys under the Vienna Convention and customary international law. For the purposes of determining that issue on this appeal, the following legal principles are relevant.

[104] First, our law recognizes the Crown's prerogative to conduct international affairs and that the executive is best placed to make foreign policy decisions, within a range of constitutional options: Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at paras. 25-27 and 36-37. Accordingly, the Minister alone has the power to recognize diplomatic status. This power arises from the Crown's prerogative and the FMIOA.

[105] Second, a sending state cannot unilaterally attribute diplomatic status over its property with binding effect on the domestic laws of the receiving state: Philippine Embassy Bank Account Case (1977), 65 I.L.R. 146 (Fed. Const. Ct.) (Germany), at p.188. It is the Minister who must receive and be satisfied by Iran's due assurances that the property is being used for diplomatic purposes and, if so satisfied, recognize diplomatic status.

[106] Third, the Minister has a right under s. 11 of the FMIOA to deliver certificates to communicate a fact to a court pertaining to foreign relations. Under s. 11, the Minister may issue a certificate to communicate any fact relevant to, among other things, "whether any person, diplomatic mission, consular post, office of a political subdivision of a foreign state, international organization or accredited mission has privileges, immunities or benefits under this Act."

[107] Fourth, where diplomatic immunity is going to be stripped from a person, the receiving state must give the person reasonable time after the loss of the immunity to put his or her affairs in order before the loss takes effect: Re Regina and Palacios, (1984), 45 O.R. (2d) 269 (C.A.), at p. 274. In other words, the person must be given notice of the loss of immunity.

(h) Iran's Submissions

[108] With those principles in mind, I turn to Iran's submissions regarding diplomatic immunity in the circumstances of this case.

[109] Iran submits that the premises of a diplomatic mission, the property thereon, its archives, documents and official communications are all protected by diplomatic immunity. According to Iran, the motion judge erred when he concluded that the Iranian Assets did not enjoy diplomatic immunity. Iran relies on a Minister's certificate that did not state that its bank accounts or properties were not diplomatic and submits that there was other compelling evidence that Canada had accepted that these assets were diplomatic in nature.

[110] With respect to the bank accounts, Iran submits that it is undisputed that the two accounts were used to pay student scholarships and expenses on behalf of one of the Iranian Embassy's branches. Iran relies on the fact that Canada issued a diplomatic note recognizing the diplomatic nature of the Bank of Nova Scotia account in January 2012. It also points out that on June 21, 2012, Iran delivered a diplomatic note confirming that the relevant accounts were used and intended to be used for diplomatic purposes, that is, student scholarships. In any event, Iran submits that it should have been given notice of its loss of diplomatic immunity in September, 2012 so that it could transfer the funds out of the country.

[111] With respect to the real properties, Iran argues that they are included as premises of its diplomatic mission in Canada and are subject to immunity, regardless of the severance of diplomatic relations or even the outbreak of armed conflict between two states: see Vienna Convention, art. 22, as incorporated in s. 3 of the FMIOA. Iran argues that the evidence establishes that the two properties were used or were intended to be used as cultural centres. Iran submits, therefore, that these purposes are sufficiently connected with the official purposes of the state and the premises of the mission to permit it to invoke diplomatic immunity. Finally, Iran submits that even if the Minister's certificate that did not explicitly mention that its properties were not diplomatic can be construed as an implicit refusal or withdrawal of diplomatic status, Canada was obliged to give it a reasonable amount of time to sell the real properties and remove the proceeds from Canada.

(i) Analysis

[112] I would not give effect to any of these arguments.

[113] Dealing first with the issue of notice of the loss of diplomatic immunity, it is unnecessary to determine whether this court's ruling in Palacios, which was made in the context of an individual losing diplomatic immunity and being subject to arrest, should be extended to the loss of diplomatic status for property. I reach this conclusion because, in my view, notice is not relevant given the special circumstances of Iran's diplomatic relations with Canada.

[114] Well before the cessation of diplomatic relations between the two countries in 2012, Iran was the subject of international sanctions set out in the Special Economic Measures (Iran) Regulations, S.O.R./2010-165. Pursuant to these sanctions, Canada had to approve the transfer of funds out of the country. When requests were made in September 2012 for such a transfer they were denied by the Canadian government.

[115] Consequently, notice of the loss of diplomatic status for the bank accounts or real property would have no practical effect. The purpose of notice in such circumstances would be to give Iran a reasonable opportunity to transfer money out of Canada, but any such transfer could not be affected unless approved by Canada because the sanctions were in place. Therefore, the motion judge made no error in not considering the lack of notice given to Iran.

[116] Next, I agree with the motion judge's finding that the time for determination of the diplomatic status of property is the time of the attempted execution on that property. As all parties agree, the diplomatic status of property may change over time. If the question is whether the property is exigible, logically the status of the property must be examined as at the date of the attempted execution.

[117] I also see no error in the motion judge's conclusion that diplomatic immunity cannot be asserted to avoid execution of a foreign judgment that has been recognized in Canadian court proceedings unless the Minister has acknowledged the diplomatic status of the property sought to be attached. That conclusion is entirely consistent with the principles outlined above.

[118] Thus, the question becomes whether on the evidence the Minister had conferred diplomatic status on the Iranian Assets. The motion judge concluded that no diplomatic status was extant at the time of the execution on the property. The evidence, including the fact that the Iranian Assets property was not included in the Minister's certificates, amply supported that finding.

[119] While a certificate is the best evidence of Minister's communication of diplomatic status, it was not an error for the motion judge to look at the whole context, including the Department of Foreign Affairs' website and its letter of September 4, 2013 to counsel for the Tracy and Bennett respondents, to determine what property enjoyed diplomatic status. The website, for example, made clear what Iranian Assets were not protected by diplomatic immunity, and it referred specifically to the 2 Robinson Avenue property in Ottawa as well as to several Bank of Nova Scotia and Royal Bank of Canada accounts.

[120] The motion judge's finding in this regard is entitled to deference from this court. Given the solid evidentiary base supporting that finding, there is no basis for appellate interference.

(7) REJA Enforcement

[121] Iran submits that the Registration Order should have been set aside because the respondents did not comply with the REJA. It argues that the REJA requires the Ontario court to consider whether the original court acted within its jurisdiction, whether Iran carried on business in Nova Scotia, and whether Iran would have a good defence to the original action. According to Iran, had Chapnik J. undertaken this analysis she would have concluded that the original court acted without jurisdiction as Iran did not carry on business nor was it resident in Nova Scotia and that Iran would have had a good defence because the Nova Scotia Order contravened public policy. Further, Iran asserts that the Registration Order was not properly served and that the motion judge erred when he failed to consider that s. 3(2) of the SIA required the court to give effect to state immunity even if Iran fails to take steps in the proceeding.

[122] I am not persuaded by these submissions to set aside the Registration Order.

[123] The fact is that Iran's motion to set aside the order was brought out of time. Section 6 of the REJA requires that such motions be brought within one month after the judgment debtor has notice of registration. Iran was served with the Registration Order on August 19, 2013 and it did not move to set aside that order until May 16, 2014. There was no request to extend the time under the REJA for bringing the motion to set aside, nor has Iran provided any evidence to explain why it failed to meet the one-month deadline in s. 6 of the REJA.

[124] With respect to Iran's argument regarding the validity of the service of the Recognition Order, in my view the service was proper. I note that Iran's counsel raised a new argument during the course of oral argument on this point that contradicted his position in his factum. I will deal with both arguments.

[125] In its factum, Iran argued that s. 5 of the REJA required service of the Registration Order within one month after issuance and Chapnik J. did not have authority to extend the time period for service. Section 5 of the REJA provides as follows:

In all cases in which registration is made upon an order made without notice, notice thereof shall be given to the judgment debtor within one month after the registration, and the notice shall be served in the manner provided by the practice of the registering court for service of originating process, and no sale under the judgment of any property of the judgment debtor is valid if made prior to the expiration of the period fixed by section 6 or such further period as the court may order.

[126] In the Registration Order, Chapnik J. provided that, pursuant to s. 5 of the REJA, a "copy of this Order shall be sent by the Applicants to the Department of Foreign Affairs of Canada within one month after registration for service upon the Respondents through diplomatic channels." She made no error in ordering service in this manner. Section 5 of REJA provides for service in accordance with the "manner provided by the practice of the registering court for service of originating process." Rule 16.04 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permits a judge to extend the time for service and to order substituted service. Accordingly, I am not satisfied that the service order was contrary to the manner provided for in the Rules of Civil Procedure and, therefore, it did not violate s. 5 of the REJA.

[127] While making reply submissions, counsel for Iran raised for the first time an alternative argument on this point. He submitted, contrary to what was in his factum, that service should not be carried out in accordance with s. 5 of the REJA but in accordance with s. 9(2) of the SIA, which provides:

(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.

[128] It is difficult to understand how reliance on s. 9(2) of the SIA assists Iran. The Registration Order explicitly provides for delivery of the order to the Department of Foreign Affairs of Canada for service through diplomatic channels, which is what Chapnik J. ordered. The Tracy respondents in fact complied with this specified manner of service. As Brown J. found at para. 13 of his reasons for ordering that certain of Iran's assets in Canada were available to the Tracy respondents for execution, an August 21, 2013 certificate from the Department of Foreign Affairs confirmed service of the Registration Order on Iran on August 19, 2013. Counsel for Iran also appeared to concede this point in reply submission. So, under either the REJA or the SIA, service was proper.

[129] Finally, I acknowledge that under s. 3(2) of the SIA Chapnik J. was obliged to "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." That subsection would be applicable where the immunity granted in subsection (1) is still extant. In her order, Chapnik J. specifically provided that once service was affected Iran could move under s. 6 of the REJA to set aside the Registration Order. In that way, she gave effect to Iran's immunity, if it still existed, by explicitly providing that it could set aside the order, presumably on the basis of, among other things, state immunity.

(8) Test for Setting Aside a Default Judgment

[130] Iran submits that the default judgments should have been set aside because:

1. The appellants had viable defences;

2. Section 3(2) of the SIA requires the court to give effect to immunity notwithstanding that the state has failed to take steps in the proceedings;

3. The claimants failed to translate their documents, resulting in a delay in responding;

4. Iran understood Canada would protect its interests; and

5. Iran moved promptly to stay these proceedings.

[131] I would not give effect to these submissions. For the reasons given above, Iran has not established that it has viable defences. Regardless of s. 3(2) of the SIA, Iran is not protected by immunity, save for the pre-1985 terrorist conduct. Iran has also not tendered any admissible evidence to explain its default. Although art. 5 of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965, Can. T.S. 1989 No. 2, may require a party serving court documents on a foreign state to provide copies of the documents in the official language of the state addressed, Iran is not a signatory to this convention and therefore cannot invoke art. 5: see Xela Enterprises Ltd. v. Castillo, 2016 ONCA 437, 131 O.R. (3d) 193, at para. 21, leave to appeal refused, [2016] S.C.C.A. No. 366. Finally, the rather vague assertion that Canada would protect Iran's interests is unexplained and unpersuasive.

[132] In my view, it is not in the interests of justice to set aside the default judgments, save as mentioned above. Iran was properly served and ultimately chose to effectively take its chances with the court process by not responding to the claims and waiting to have them set aside on a subsequent motion. I agree with the motion judge's observation at para. 186 of his reasons that Iran appears to have been "gaming the process."

(9) Costs

[133] Iran submits that the motion judge erred in awarding costs against it. In support of this position, it advances two arguments. First, it says the phrase "additional amount" in s. 4(1) of the JVTA refers to costs so the absence of similar language in s. 4(5) means that costs are not payable in an enforcement action. Second, it argues that it is immune from a costs award because its immunity has not been expressly lifted.

[134] The motion judge rightly rejected these arguments below.

[135] First, I agree with the motion judge that the phrase "additional amount" in s. 4(1) refers to non-compensatory damages. If Parliament intended to refer to costs, it would have done so explicitly. The term "costs" is a "familiar and widely used term of art" that could have easily been used to implement that intention: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, at para. 40.

[136] Second, there is no principled reason why, if a foreign state's immunity has been lifted under the JVTA for an enforcement action, it should not be subject to an award of costs for the prosecution of such an action. In this regard, the motion judge was correct to rely upon s. 17 of the SIA, which provides that "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." I note as well that the argument that a state is immune from a costs award even after it has been stripped of its immunity is contrary to binding authority from the Supreme Court of Canada: Kuwait Airways, at para. 36.

F. DISPOSITION

[137] I would dismiss the appeal in its entirety, save for the actions of Welch and Brewer in the Marthaler group of respondents and the action of the respondent Holland. Because the underlying U.S. judgments in those actions relate to terrorist activities that occurred prior to January 1, 1985, those judgments cannot be recognized under s. 4(5) of the JVTA.

[138] At the conclusion of oral argument, the parties indicated their agreement to address the matter of the costs of these appeals in writing following the release of these reasons so that their discussions may be informed by the outcome of these appeals. I recognize that as a consequence of the dismissal of the Welch, Brewer and Holland actions there may be ramifications for the costs ordered on the motions. I trust that the parties can reach an agreement on this issue. If they cannot, they may make brief written submissions to this court.

Released: June 30, 2017

"C.W. Hourigan J.A."

"I agree. Alexandra Hoy A.C.J.O."

"I agree. R.A. Blair J.A."

SCHEDULE "A"

Justice for Victims of Terrorism Act, S.C. 2012, c. 1

Preamble

Whereas Canadians and people everywhere are entitled to live their lives in peace, freedom and security;

Whereas Parliament recognizes that terrorism is a matter of national concern that affects the security of the nation and considers it a priority to deter and prevent acts of terrorism against Canada and Canadians;

Whereas acts of terrorism threaten Canada's political institutions, the stability of the economy and the general welfare of the nation;

Whereas the challenge of eradicating terrorism, with its sophisticated and trans-border nature, requires enhanced international cooperation and a strengthening of Canada's capacity to suppress and incapacitate acts of terrorism;

Whereas United Nations Security Council Resolution 1373 (2001) reaffirms that acts of international terrorism constitute a threat to international peace and security, and reaffirms the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by acts of terrorism;

Whereas Canada ratified the 1999 International Convention for the Suppression of the Financing of Terrorism on February 15, 2002;

Whereas hundreds of Canadians have been murdered or injured in terrorist attacks;

Whereas terrorism is dependent on financial and material support;

Whereas certain states that support terrorism should not benefit from state immunity in this regard;

And whereas Parliament considers that it is in the public interest to enable plaintiffs to bring lawsuits against terrorists and their supporters, which will have the effect of impairing the functioning of terrorist groups in order to deter and prevent acts of terrorism against Canada and Canadians;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Provisions

1 This Act may be cited as the Justice for Victims of Terrorism Act.

2 The following definitions apply in this Act.

foreign state has the same meaning as in section 2 of the State Immunity Act. (État étranger)

listed entity has the same meaning as in subsection 83.01(1) of the Criminal Code. (entité inscrite)

person includes an organization as defined in section 2 of the Criminal Code. (personne)

3 The purpose of this Act is to deter terrorism by establishing a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters.

4 (1) Any person that has suffered loss or damage in or outside Canada on or after January 1, 1985 as a result of an act or omission that is, or had it been committed in Canada would be, punishable under Part II.1 of the Criminal Code, may, in any court of competent jurisdiction, bring an action to recover an amount equal to the loss or damage proved to have been suffered by the person and obtain any additional amount that the court may allow, from any of the following:

(a) any listed entity, or foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or other person that committed the act or omission that resulted in the loss or damage; or

(b) a foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or listed entity or other person that — for the benefit of or otherwise in relation to the listed entity referred to in paragraph (a) — committed 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.

(2) A court may hear and determine the action referred to in subsection (1) only if the action has a real and substantial connection to Canada or the plaintiff is a Canadian citizen or a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act.

(2.1) In an action under subsection (1), the defendant is presumed to have committed the act or omission that resulted in the loss or damage to the plaintiff if the court finds that

(a) a listed entity caused or contributed to the loss or damage by committing an act or omission that is, or had it been committed in Canada would be, punishable under Part II.1 of the Criminal Code; and

(b) the defendant — for the benefit of or otherwise in relation to the listed entity referred to in paragraph (a) — committed 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.

(3) A limitation or prescription period in respect of an action brought under subsection (1) does not begin before the day on which this section comes into force and is suspended during any period in which the person that suffered the loss or damage

(a) is incapable of beginning the action because of any physical, mental or psychological condition; or

(b) is unable to ascertain the identity of the listed entity, person or foreign state referred to in paragraph (1)(a) or (b).

(4) The court may refuse to hear a claim against a foreign state under subsection (1) if the loss or damage to the plaintiff occurred in the foreign state and the plaintiff has not given the foreign state a reasonable opportunity to submit the dispute to arbitration in accordance with accepted international rules of arbitration.

(5) A court of competent jurisdiction must recognize a judgment of a foreign court that, in addition to meeting the criteria under Canadian law for being recognized in Canada, is in favour of a person that has suffered loss or damage referred to in subsection (1). However, if the judgment is against a foreign state, that state must be set out on the list referred to in subsection 6.1(2) of the State Immunity Act for the judgment to be recognized.

State Immunity Act, R.S.C. 1985, c. S-18

Relevant Provisions

2.1 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.

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

(2) 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.

6.1 (1) 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.

(2) 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.

9 (1) Service of an originating document on a foreign state, other than on an agency of the foreign state, may be made

(a) in any manner agreed on by the state;

(b) in accordance with any international Convention to which the state is a party; or

(c) in the manner provided in subsection (2).

(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.

12 (1) 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

(a) 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;

(b) 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;

(c) 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

(d) 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.

(2) 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.

17 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.