Canadian Planning v. Libya, 2015 ONSC 3791
CITATION: Canadian Planning v. Libya, 2015 ONSC 3791
Court File No. CV-13-44192-00
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CANADIAN PLANNING and DESIGN CONSULTANTS INC.
Applicant
- and -
STATE OF LIBYA
Respondent
R U L I N G
DELIVERED BY THE HONOURABLE JUSTICE C. BRAID
on March 13, 2015, at HAMILTON, Ontario
APPEARANCES:
G. Graham & M. Ruby
Counsel for the Applicant
M. Comartin & G. McGuire
J. Melia & J. Radford
Counsel for the Applicant
Counsel for the Respondent
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Ruling Page 1
Transcript Ordered.......................
Transcript Completed.....................
Ordering Party Notified..................
FRIDAY, MARCH 13, 2015
Ruling
BRAID, J. (Orally):
Canadian Planning and Design Consultants ("Canadian Planning") is a Canadian corporation who made a monetary claim against the State of Libya ("Libya") for breach of contract arising out of a Hospital Management Agreement from 2007. In that agreement, both parties agreed that any disputes would be settled at the International Chamber of Commerce International Court of Arbitration in Paris ("ICC"). A dispute arose, and both parties submitted to the jurisdiction of the ICC for the purpose of arguing the dispute on its merits.
On May 4, 2012, the ICC ordered Libya to pay damages to Canadian Planning for lost profit. The current value of this judgment is approximately $11 million Canadian dollars. Despite the fact that Libya submitted to the jurisdiction of the ICC, Libya has failed to pay the judgment.
On November 14, 2013, Canadian Planning issued a Notice of Application seeking an order to permit them to enforce the ICC judgment in Canada. Libya served and filed a Notice of Appearance dated January 22, 2014, wherein Libya objected to the Application on the grounds of state immunity.
Libya then served and filed a Respondent Application Record on February 7, 2014; and a factum and Book of Authorities on March 26, 2014. Libya sought to dismiss the action on the grounds that the Court had no jurisdiction over the subject matter of the Application on account of Section 3 of the State Immunity Act.
On March 24, 2014, Canadian Planning served and filed a Supplementary Application Record. Libya served and filed a motion record seeking to strike portions of the Supplementary Application Record. Canadian Planning then served a responding motion record regarding Libya's motion to strike. That motion had not been heard or disposed of by the time of the Application hearing.
On May 23, 2014, Borden Ladner Gervais ("BLG") solicitors of record for Libya, submitted a motion in writing to be removed as solicitors of record. The motion record included a draft order with Libya's address for service and telephone number. It also included a letter from the Libyan Ambassador that contained the address and phone number for the Libyan Embassy. The letter stated as follows:
"Please be kindly informed that the competent authorities in Libya decided to follow different channels and procedures for dealing with the legal dispute involving the State of Libya and the Canadian Planning & Design Consultants Inc., which implies that the Embassy of Libya in Ottawa terminates assigning BLG to represent it in this case."
That letter was sent by the Libyan Ambassador to Canada, Ambassador Fathi Mohammed Baja.
Despite the fact that Libya was aware of the May 27, 2014 court date, no one attended on their behalf. BLG was removed as solicitors of record for the Respondent. The Court also made the following additional orders:
- "There being no evidence before the Court that the retainer of BLG was ever properly authorized by the competent authority on behalf of the Respondent, the head of the litigation department, and in light of the letter of the
Respondent's Ambassador to Canada before the Court of May 16, 2014, showing the Respondent's intent to withdraw from these proceedings, the time period for the Applicant to wait while the Respondent's representation is sorted out, which time period would otherwise apply, and which are set out in Rule 15.04 (8) and (9), shall not apply."
- "Accordingly, this matter is put over to the long motions list for the week commencing June 16th, 2014 for argument on the merits unless the Respondent appoints alternate counsel and shows good cause why this matter should not proceed to be heard on the merits at that time."
By email, counsel for Canadian Planning advised BLG (former counsel for Libya) that the matter had been adjourned to the long motions list on the week of Monday, June 16, 2014. BLG was provided with a copy of the order of May 27, 2014 and a copy of the order was sent to the Libyan embassy at the address set out in the letter.
On Friday, June 20, 2014, Justice Parayeski issued a recognition and enforcement order. Libya did not attend this hearing. Libya had been served with the original application and had received a copy of the May 27, 2014 order setting out that the matter had been adjourned to the long motions list the week of June 16, 2014. The court practice in Hamilton is for the trial co-ordinator to telephone the parties with a specific date of the week when the matter is to be heard. Libya did not file a change of solicitor or an intention to act in person prior to the June 20, 2014 court date.
Some time after it learned of Justice Parayeski's order, Libya appealed the recognition and enforcement order. On December 19, 2014, the Ontario Court of Appeal found that there was no basis to interfere with the order on procedural fairness grounds and dismissed the appeal. The Court stated that the appropriate procedure to raise this issue was by way of a motion to set aside the order pursuant to Rule 38.11.
Libya subsequently brought a motion to set aside Justice Parayeski's order. The Libyan Ambassador swore an affidavit in support of this motion. At the outset of the hearing on this motion, an issue was raised as to whether the Libyan Ambassador to Canada should be produced for cross-examination.
Issue
The issue that this Court must deal with today is as follows: Is the Libyan Ambassador to Canada immune from being compelled to attend cross-examinations on an affidavit that he has filed in these proceedings?
Analysis
Libya argues that the Ambassador is not compellable. Libya states that this stems from general immunity from legal process and is also recognized by the Vienna Convention on Consular Relations, Article 44, (adopted into Canadian law as part of the Foreign Missions and International Organizations Act which states:
"Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence and documents related thereto."
Although the Ambassador is under no obligation to give evidence, I find that the analysis changes once he voluntarily submits evidence by affidavit or otherwise. It is a basic rule of evidence that a voluntary witness who provides an affidavit is required to submit to cross-examination because the right to cross-examine is essential to give any weight to an affidavit.
That basic rule of evidence has been recognized in the Supreme Court of Canada decision in R. v. Darrach 2000 SCC 46, [2000] 2 SCR 443 and later commented on by the Newfoundland and Labrador Court of Appeal in the case of Royal Canadian Mounted Police and Rees (decided March 29, 2005).
The cross-examination of the Ambassador is particularly important in the circumstances of this case for the following reasons:
a) Justice Parayeski, on a plain reading of the letter of May 16, 2014, believed that the letter expressed the Respondent's intent to withdraw from these proceedings (as he stated in his order of May 27, 2014). The content of the Ambassador's letter of May 16, 2014 appears to be contradictory to paragraph 6 in the Ambassador's affidavit (sworn January 13, 2014) wherein he states that: "it was Libya's intention to have an Embassy representative attend the Application hearing to assert Libya's sovereign immunity."
b) The test on the Rule 38.11 motion requires that Libya show that they failed to attend "through accident, mistake or insufficient notice". Libya states that they intended to dispute the application; however they failed to attend court on May 27 and June 20, 2014. The Ambassador states, in his affidavit, that the Court did not call him to notify him of the June 20 motion date. The sufficiency of notice will be particularly relevant to the analysis on the Rule 38.11 motion.
c) When Libya appealed the recognition and enforcement order, the Ontario Court of Appeal dismissed the appeal. The Court stated, in part, that: "there is no adequate record before us as to the state of the Appellant's knowledge regarding the June 20 or its reasons for not appearing on this date." Libya has attempted to amend this inadequacy by filing the Ambassador's affidavit. However, given how crucial this evidence may be to the outcome of the 38.11 motion, the Court cannot simply rely on bald assertions as set out in the affidavit.
In light of these factors, I find that this case is factually unique. The content of the Ambassador's affidavit and the accuracy of that evidence is crucial to the motion.
Conclusion
I find that an Ambassador is ordinarily under no obligation to give evidence. He is protected by the sovereign immunity of the State of Libya. However, once he provides evidence in these proceedings, he must also make himself available for cross-examination. Unless Ambassador Fathi Mohammed Baja withdraws his affidavit, I find that he has waived his immunity by filing the affidavit.
Libya suggests that any questioning of the Ambassador can be done by interrogatories or written questions. On the other hand, Canadian Planning wishes an opportunity to cross-examine the witness directly.
Rule 31.02 states that at, the option of the examining party, the examination for discovery may take place by way of written questions and answers. Canadian Planning has objected to proceeding in that fashion.
In light of the unique circumstances of this case, I find that it is appropriate to permit Canadian Planning the opportunity to exercise its right to cross-examine the witness. As mentioned above, it is a recognized rule of evidence that cross-examination is essential to give any weight to an affidavit.
I therefore direct as follows:
A) On or before March 25, 2015, Libya shall produce Ambassador Fathi Mohammed Baja for cross-examination.
B) The cross-examination shall be limited to his affidavit sworn January 13, 2015 and Ambassador Baja's letter of May 16, 2014.
C) The examination shall be arranged at a location that is agreed upon by counsel and the cost of the examination shall be paid by Canadian Planning.
D) If Libya refuses to produce Ambassador Baja for cross-examination, the Court shall give no weight to his affidavit sworn January 13, 2015.
Form 2
Certificate of Transcript (Subsection 5(2))
Evidence Act
I, Tracy Eybel certify that this document is a true and accurate transcript of the recording of Canadian Planning and Design Consultants v. State of Libya, in the Superior Court of Justice, held at HAMILTON taken from Recording 4799_702_20150313_094001, which has been certified in Form 1.
May 26, 2015 electronic copy
(Date) Authorized Court Transcriptionist
The Typist
Certified Verbatim Transcription
519-721-1879