Earlier this year, in R. v. National Post, 2010 SCC 16, considered the dimensions of such a privilege in the context of the “Shawinigate” scandal involving former Prime Minister Jean Chretien. (Read more about the National Post decision here.) Essentially, the court rejected the argument for a class-based privilege between journalists and their sources, and also rejected the Charter argument put forth by the National Post. Instead, the Court concluded that the common law Wigmore test should be applied to assess privilege on a case-by-case basis.

Globe and Mail v. Canada (Attorney General), 2010 SCC 41, a decision released late in October, raises many of the same concerns about source confidentiality and journalist-source privilege, but in the civil litigation context. Relying on its earlier precedent in National Post, the Court quickly concluded that the Wigmore test was preferable to a blanket class privilege or a constitutional protection for the journalist-source relationship. But the Court also had to find a way to introduce the Wigmore framework – a doctrinal creation of the common law – into Quebec’s civil law system.

History and Facts

Using information obtained through a confidential source, Globe and Mail journalist Daniel Leblanc wrote a series of articles on the problematic activities surrounding the administration of the Sponsorship Program, a program created by the federal Cabinet in the late 90s to increase the government’s visibility in Quebec. Leblanc’s articles, which primarily targeted the misuse and misdirection of public funds, spawned a media furor, a political backlash and eventually even a Royal Commission (the Gomery Inquiry).

In 2005, the Attorney General of Canada filed a motion to recover money – a total of over $60 million – paid by the federal government under the program, and the Groupe Polygone was one of the entities implicated in the scandal. In response, the group maintained that the government had earlier knowledge of the scandal. It tried to advance a defence of prescription under the Civil Code of Quebec.

In the course of the litigation, Groupe Polygone applied for an order requiring certain persons to answer questions aimed at identifying the source behind the Globe and Mail articles. Hebert J. issued a series of orders instructing individuals to answer questions in writing.

A year later, the Globe brought a motion for revocation, arguing that the orders would have the effect of breaching journalist-source privilege. De Grandpré J. dismissed the paper’s objections, and leave to appeal was denied.

Additionally, in 2008, Leblanc wrote another article that reported details of the negotiation of a settlement between Groupe Polygone and the federal government.  Counsel for Groupe Polygone responded by complaining about the leak at the discontinuance proceedings, which created the need for further judicial guidance. As a result, de Grandpré J. made an order that prohibited Leblanc from reporting on the confidential settlement negotiations between the AG and the defendants. Although the Globe argued that the order was, in effect, a publication ban, de Grandpré J. maintained that it was not despite providing no interim written or oral reasons. Once again, leave to appeal was rejected by the Quebec Court of Appeal.

At the Supreme Court of Canada, the two principal issues were the journalist-source privilege that should be afforded to Leblanc and the anonymous tipster, and the publication ban.

Let’s Be Civil About This: Introducing the Wigmore Framework

In Globe and Mail, the Court strongly endorses the conclusion reached in National Post. There, the Court rejected arguments on the Charter and on a reporting-class privilege, and adopted the Wigmore framework for issues of journalist-source privilege.

In essence, in order for a privilege to be recognized, the claimant of the privilege – in this case, the journalist and the Globe and Mail – must satisfy all four of the factors:

(1) the relationship must originate in a confidence that the source’s identity will not be disclosed; (2) anonymity must be essential to the relationship in which the communication arises; (3) the relationship must be one that should be sedulously fostered in the public interest; and (4) the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth.

Writing for the Court, LeBel J. doesn’t seem to deviate from Binnie J.’s approach in National Post, where a particular emphasis was placed on the third and fourth factors for the journalist-source context. However, LeBel J. is well-aware that the circumstances of this case are quite different, stating:

While this appeal raises issues similar to those addressed in National Post, the context is nevertheless different. This case involves civil litigation, not the criminal investigative process. It involves testimonial compulsion, and not the production of documents or other physical evidence. The parties’ dispute is subject to the laws of Quebec and the Quebec Charter. These factors must be considered in determining how, and to what extent, the majority reasons in National Post are equally applicable to the issues raised by this appeal.

Thus, although the Court concluded that the Wigmore case-by-case approach should apply in the context of ordinary civil litigation, it had to contend with Quebec’s unique civil law tradition. As noted by the Court, “it would be inappropriate for this Court to introduce into the Quebec law of civil procedure and evidence a framework for considering journalist-source privilege which originates entirely in the common law.”

In addition to the Civil Code, civil procedure is also codified in Quebec by means of the Code of Civil Procedure. The Court was quick to note, however, that the codification of civil procedure does not mean that civil procedure “is completely detached from the common law model.” They noted that the Civil Code sets out a legal framework and essential rules of the law of civil evidence, but general principles have still have to be considered when an unresolved issue emerges in the application of the law.

The Court quickly rejected arguments that journalist-source privilege is a quasi-constitutional privilege under the Quebec Charter, and acknowledged that neither the Civil Code nor the Code of Civil Procedure explicitly provided for the recognition of the privilege in a civil litigation context. However, the Court noted that constitutional and quasi-constitutional rights are engaged because “some form of legal protection for the confidential relationship between journalists and their anonymous sources is required.”

Thus, the need for a framework represents a “legitimate and necessary exercise” of the court’s power to interpret the law, and the Court analogized journalist-source privilege to police-informer privilege in this regard. Although police-informer privilege is a class privilege, the very thing they were rejecting, it does share roots in a common law rule of public policy.

In Bisaillon v. Keable, [1983] 2 S.C.R. 60, it was argued that since the Code of Civil Procedure was comprehensive, the omission of a testimonial exception for police informants meant that the Commissioner in the case could compel disclosure. Beetz J., writing for a unanimous case, concluded that because the police-informer privilege originated in the common law, the rule would only be overturned in Quebec law by a “validly adopted statutory provision.” Thus, since the Code of Civil Procedure was found to be lacking on this point, the common law rule remained a part of Quebec law.

Using this premise, the Court in Globe and Mail concludes that:

Despite its common law origins, the use of a Wigmore-like framework to recognize the existence of the privilege in the criminal law context, as established in National Post, is equally relevant for litigation subject to the laws of Quebec.

Thus, although the Wigmore test doesn’t have to explicitly guide the analysis of lower court judges, the Court believes that it can “shape the structure of the analysis” when claims of journalist-source privilege are made in a Quebec civil litigation context.

On the issue of journalist-source privilege, LeBel J. concludes that Leblanc was entitled to have his claim for privilege tested against these criteria, and allowed the appeal. The Court remitted the matter to Superior Court for a consideration of his claim, in accordance with the framework provided in the Court’s judgment.

It’s Not Not A Publication Ban

After counsel for Groupe Polygone voiced their frustration over an article by Leblanc that publicized some of the details of a settlement negotiation between the Groupe and the Attorney General, de Grandré J. made an order without notice, without an application, and without submissions from either party. The judge also maintained that his order was not a publication ban, even though the order in effect forbade Leblanc from writing articles about the settlement negotiations.

On this point of appeal, LeBel J. clearly stated that de Grandpré J. had erred by depriving the parties the opportunity to be heard. Although the Court acknowledged that art. 46 of the Code of Civil Procedure gave the Superior Court judge the authority to make orders ex proprio motu, the judge must do so in light of the rights of the parties. Given that a publication ban infringes on the constitutional rights of a party, it cannot be imposed unilaterally.

The Court also rejected Groupe Polygone’s submission that Leblanc had committed a civil wrong under art. 36(2) of the Civil Code of Quebec, which quantifies “intentionally intercepting or using…private communications” as the invasion of the privacy of a person. The Court concluded that the wrong contemplated by this article was committed by the government source, and not the reportage of the information in the Globe and Mail. LeBel J. also cited strong policy grounds for this conclusion:

The fact of the matter is that, in order to bring to light stories of broader public importance, sources willing to act as whistleblowers and bring these stories forward may often be required to breach legal obligations in the process. History is riddled with examples. In my view, it would also be a dramatic interference with the work and operations of the news media to require a journalist, at the risk of having a publication ban imposed, to ensure that the source is not provided the information in breach of any legal obligations. A journalist is under no obligation to act as legal adviser to his or her sources or information.

LeBel J. also concluded that this policy is consistent with the “Daily Mail principle” in the US, where the state cannot punish the publication of truthful information about a matter of public importance, absent a higher order public interest.

The Court also has no difficulty in qualifying the order as a publication ban, and concludes that the Dagenais/Mentuck framework should have been applied prior to making the order. In order to satisfy this framework, the order must be necessary to “prevent a serious risk to the proper administration of justice.” Additionally, the salutary effects of the ban must outweigh the deleterious effects to the rights and interests of the parties and the public.

LeBel J. found that the facts in this case failed to satisfy both prongs of the framework, and also addressed the question of the obligation on journalists when their source might be in violation of their confidentiality obligations:

…I am reluctant to endorse a situation where the media or individual journalists are automatically prevented from publishing information supplied to them by a source who is in breach of his or her confidentiality obligations. This would place too onerous an obligation on the journalist to verify the legality of the source’s information.

Entering a Post-Post Era

Picking up where National Post left off, Globe and Mail confirms that the Wigmore case-by-case analysis is the appropriate test for journalist-source privilege whenever it is raised as an issue. In addition, it provides a workable legal framework for the analysis under the Quebec civil law traditional.

However, if I may editorialize for a moment, both these cases also reaffirm the importance of the news media as the fourth estate. As a former journalist and editor, I have watched the discussion of a journalist-source privilege with great interest and although I know that many of my former peers would disagree with me, the Court has struck the appropriate balance in taking a case-by-case view.

Although there are a few negatives to a case-by-case standard – for one, it does not offer a reliable protection, and whistleblowers may be deterred for fear of having their anonymity compromised – it reflects the current nature of the journalistic profession. The truth of the matter is that “journalism” encompasses a broad range of media and a diverse range of reportage. Although a class privilege may have made more sense in print media’s heyday, it wouldn’t reflect the current nature of the profession.

More importantly, however, the Court’s approach to the Wigmore framework in cases of journalist-source privilege rightly places the focus on the third and fourth branches of the test, where a particular emphasis is placed on the public interest. Leblanc’s writings are an excellent example of how journalists play an essential role in serving the public interest. These kinds of journalistic endeavours, as we can see in the aftermath of the Sponsorship Scandal, can play a pivotal role in holding public actors accountable.

Thus, by placing greater weight on the third and fourth factors in both National Post and Globe and Mail, the Court has essentially afforded greater protections for journalist-source relationships that are beneficial to the public interest at large. In my view, these kinds of relationships are definitely worth fostering and protecting, and I think the Court has struck an appropriate balance.

The court will hear the story that a victim thought she’d never have the chance to tell.

It involves a 25-year-old sexual assault charge, a priest who plead guilty to the criminal charges and is now serving time for them, and a woman who felt she did not know the true extent of her injuries until she sought therapy for emotional problems many years later.

The main issue before the court was at what point the prescriptive period (known under the common law system as a statute of limitations) began to run. The general civil period of prescription in Quebec is three years from the date of impugned action.

Christensen did not file a civil claim for redress until 2006, 25 years after the assaults took place. The respondents (the Church) filed motions to dismiss the action on the ground that it was prescribed; the Quebec Superior Court granted their motions and dismissed the action. A majority of the Court of Appeal affirmed the judgment.

The Facts

During her childhood, the appellant attended the Sacred Heart parish in Quebec City. In 1979, when she was six, she met the respondent – the parish priest, Paul-Henri Lachance. Apparently in search of a father figure, she visited Lachance in his office at the rectory up to once a week, and he became her friend and confidant.

At some point in the first year of their relationship, the priest began to touch the young girl inappropriately. He would kneel before her and the touching lasted several minutes each time. During that period, the appellant’s mother sought the help of a child psychiatrist for behavioral problems. This went on for two years.

At some point in 1981, the priest moved to more aggressive sexual conduct by taking the appellant to his bedroom, removing her clothes and assaulting her further. The appellant rushed home immediately after this incident to tell her mother what happened, which leads to them visiting the rectory. Rev. Lachance is absent, but they speak with another priest, who recommends they visit the Roman Catholic Archbishop of Quebec. They are received by representatives of the respondent Archbishop, who tells the family that the diocese will handle the case, and not to disclose any of the events to the police or the public. The Archbishop assigns Lachance to another parish.

The appellant’s teenage years and later life are marred by problems with her self-esteem and sexuality.  She experiences panic attacks from sexual contact, and consults a psychologist. One day, when she was helping her husband’s six-year-old daughter from another marriage in the bathroom, she became overwhelmed with her daughter’s vulnerability at such a tender age. Angered, she finally defies the advice of the parish and files a complaint against Lachance for indecent assault against a female person. He pled guilty to the offense.

A year later, the appellant took steps to institute an action in tort against the respondents.

The Trial Judgment

At trial, the judge explained the principles that govern the consideration to dismiss a motion barred through extinctive prescription.  Citing the Supreme Court’s decision in Gauthier v. Beaumont, the trial judge held that if the appellant was unable to act because of fear, that psychological state of fear must have been caused by the defendant’s action, and must persist during the entire period the defendant did not act. He concluded that the facts did not support impossibility to action on part of the plaintiff, and found the action had been barred since 1983, three years after the final incident of indecent touching.

The Appeal

A majority of the Court of Appeal affirmed the judgment of the Superior Court, but for different reasons.

The appellant was not unable to be represented by others, argues the judgment. There is nothing in the record to indicate that the appellant’s mother was barred from action simply because the Diocese asked her not to go to the police.

Furthermore, the Court of Appeal argued, the appellant confused the starting point of prescription with the suspension of the limitation. Prescription may be suspended when the victim is unable to make the causal link between her injuries and the fault of the person who injured her.

The decision said that given that the existence of the parents’ knowledge about the priest’s actions and their daughter’s subsequent psychological impairment, the parents make a conscientious choice not to challenge ecclesiastical authority and not to pursue a civil remedy.

The Dissent (Endorsed in the SCC’s Ruling)

Chamberland J.A. did not agree with his colleagues, and his dissenting judgment formed the basis of the Supreme Court’s decision.

Although the appellant’s parents knew about the harm, and chose to remain silent, Chamberland JA maintained the most important aspect of this case was not whether the prescriptive limitation could be suspended, but rather when it should be said to begin running.

He cited the SCC’s decision in M(K) v. M(H) (an incest case)  where Justice La Forest argued that in order for a limitation period to begin to run, it is necessary that the plaintiff be aware of his injuries and their probable causes.

In this case, the appellant argues she became aware of the magnitude of what happened when she was 6-8 years old, and its potential connection to persistent psychological injuries, during the summer of 2006 when she sought therapy.

On these facts, the cause of action had not crystallized until the summer of 2006. The action is therefore not barred by extinctive prescription.

Moreover, Chamerland J.A. advised caution in the dismissal of claims held to be stale in Quebec, which has the shortest statute of limitations period for civil claims in Canada.

Victim’s rights groups assert that Quebec’s three-year rule is grossly unfair. While a statute of limitations is needed to reduce the uncertainty on potential defendants,  some argue that three years is not long enough for victims of assault to fairly assess the psychological damage that has been done to them. Without opening the doors to a flood of potential litigants, the court can, and hopefully will, do better in delivering justice for these vulnerable people.

A Quick Lesson on State Immunity

According to the internationally respected principle of absolute state immunity, courts are limited from exercising jurisdiction over actions brought in their jurisdiction against a foreign state. This principle has been codified in s. 3 of the federal State Immunity Act, R.S.C. 1985, c. S-18 (“SIA”). The SIA reflects the restricted immunity approach as it contains exceptions to absolute state immunity. Of particular relevance to this decision was the commercial activity exception in s. 5, which denies immunity in “any proceedings that relate to any commercial activity in the foreign state.” Other countries, including England have a similar regime.

Tail spinning into Disaster

This case arises out of Kuwait Airways Corp.’s (“KAC”) action for damages against Iraqi Airways Company (“IAC”) for appropriating its aircraft, equipment, and parts during the 1990 invasion of Kuwait. Iraq had funded and supervised IAC’s defence. Based on the perjury and tactics used to deceive the British courts during the defence, an English court awarded $84 million in costs against Iraq. The English court held that Iraq could not rely upon its state immunity because its involvement in the defence was related to its commercial interests in IAC, and thus the commercial activity exception applied. This international case migrated to Canada when KAC found out that Iraq had assets in Montreal. Accordingly, KAC applied to have the Quebec Superior Court recognize the English court’s decision. Since Iraq was unwilling go down in flames, it opposed the application on the basis that the impugned acts were sovereign acts, and thus protected by state immunity. As discussed above, Iraq’s position was that the Quebec court could not simply recognize the English decision, but had to independently decide the issue of state immunity. Thus, the main issue that the SCC had to determine was whether the SIA applies to an application for recognition of foreign judgment.

Who’s Law is it?

Before addressing the main issue, the SCC had to determine whether the Civil Code of Quebec, S.Q. 1991, c. 64 (“CCQ”) or the Civil Code of Lower Canada applied. The latter is predecessor of the CCQ and was in force in Quebec from July 1, 1867 to December 31, 1993. Iraq argued that the latter applied because the litigation that led to the English order for damages was commenced before the coming into force of the CCQ on January 1, 1994. If the Civil Code of Lower Canada applied, then the matter would have to be retried on the merits at the time of the application. The SCC swiftly disposed of this matter by referring to s. 170 of the Act respecting the implementation of the reform of the Civil Code, S.Q. 1992, c. 57 (“Implementation Code”). As its name suggests, the Implementation Code is meant to smooth the transition from the Civil Code of Lower Canada to the CCQ by providing solutions where the latter pieces of legislation are inconsistent with each other.

According to s. 170 of the Implementation Code, the CCQ applied because the English decision was rendered in 2004, after the CCQ came into force. The SCC stressed that “the relevant data for determining which code applies is not that on which the litigation between these two parties began.”

Having dealt with that preliminary issue, the SCC tackled the main issue of whether the SIA applied. KAC argued that because the English court had already decided the issue of state immunity, res judicata applied to preclude the re-litigation of the issue in the context of the application for recognizing the English decision. The SCC rejected this argument. According to Article 3076 of the CCQ, “The rules contained in this Book apply subject to those rules of law in force in Québec which are applicable by reason of their particular object.”[Emphasis added]. Since the SIA is a rule of law in force that governs  state immunity, its statutory framework governs the determination of the issue. This conclusion was fleshed out by the SCC through quoting Robert C.J.Q. of the Court of Appeal:

[translation]  To the extent that a foreign state is found to be entitled to immunity under this Act, the Canadian court simply does not have jurisdiction to consider an application against that state, including an application for recognition and enforcement of a foreign decision.  It is only in the case of an exception to the general principle of immunity that the court may rule on the merits of an application against a foreign state.

Thus, the [SIA] must apply and must govern the issue of whether Iraq is entitled to state immunity in Canadian courts.

This conclusion means that it does not matter that: (i) the issue of state immunity was already decided; and (ii) that the enforcing court will be in essence reviewing the merits of the foreign judgment. In regards to the first point, the problem of inconsistent decisions that is addressed by the principle of res judicata seems to have been conveniently set aside because state immunity is at stake. The SCC addressed this criticism at paragraph 22 when it endorsed Robert C.J.Q.’s observation that “if [the issue was res judicata], the effect would be that the British court and the United Kingdom law were delimiting the jurisdiction of the Quebec courts”. That response is satisfactory but the second point mentioned above chips away at the confidence upon which that response is accepted.

The second point, as alluded to earlier, is contrary to the basic rule in conflict of laws that an enforcing court shall not review the merits of a foreign judgment. Enforcing courts are not supposed to be appellant courts of foreign courts. However, the framework developed by the SCC for dealing with foreign judgments on state immunity is reminiscent of the interaction between appellant and lower courts. At paragraph 23, after the response on res judicata, the SCC stated:

However, the court hearing the application must confine itself to the role conferred on the Quebec authority for the consideration of an application for enforcement.  As I mentioned above, the court cannot review the merits of the decision …It may not retry the case and therefore must not reassess the facts.  Thus, the issue of state immunity and the exceptions to state immunity must be considered within the framework of the law currently applicable in Canada, including public international law, but on the basis of [the English court’s] findings of fact. [Emphasis added].

According to this statement, the enforcing court has to determine state immunity using the SIA (which arguably constitutes a review of the merits of the case), but cannot review the facts of the case – it must use the foreign court’s findings of fact. That conclusion is an interesting proposition to ponder, and considering it further, one is reminded of the role of an appellant court. Unless there has been a palpable and overriding error, an appellant court does not review the lower court’s findings of fact. The appellant court can uphold or quash the lower court’s decision. While it is clear that the enforcing court is to embark on an independent analysis of state immunity using the SIA, and thus is not upholding or quashing the foreign decision, the requirement that the foreign court’s findings of fact be used is reminiscent of the interaction between appeal and lower courts.  That similarity probably explains the initial discomfort with reviewing the merits of a foreign judgment but not the findings of fact.

Thank you for Flying with KAC

Despite taking the longer route, SCC ultimately reached the same destination as the English court. It agreed with the latter that Iraq was not protected by state immunity because its involvement in IAC’s defence was not a state act, but an act directed towards protecting its commercial interests. Although the SCC has settled many of the critical issues, the litigation between the parties will probably continue on into the future given Iraq’s stalwart determination not to pay the damages. It will be interesting to see what legal maneuvering it employs in the future to elude enforcement of the damages award.

The Claim

The corporate defendant, Green Park International Ltd., is a Quebec-registered corporation that has been involved in constructing and developing settlements for Israelis on occupied land in the West Bank. The land in question falls within the territory of the village of Bil’in. The plaintiffs are the Village Council of Bil’in, as well as Ahmed Yassin, now deceased, who claimed to own part of the land in dispute.

The structure of the claim is somewhat intricate. The plaintiffs allege that the corporate defendants are engaged in constructing residential buildings intended for Israeli civilians on village land, in furtherance of an Israeli state policy of inducing its civilian population to settle occupied territory with the ultimate objective of facilitating the eventual assimilation of these lands into its own territory.

The West Bank is not part of Israel but has been under Israeli military occupation since 1967. Thus, it falls squarely within the purview of the Geneva Conventions, which set out much of the international law with respect to military occupation. Under Article 49(6) of the Fourth Geneva Convention, it is illegal for an occupying state to “transfer parts of its own civilian population onto the territory it occupies” (the same prohibition is also set out in Article 8(2)(b)(viii) of the Rome Statute of the International Criminal Court). The plaintiffs allege that Israel is in breach of this law, and that the defendants are assisting in this breach.

Under international law, it so happens that a breach of Article 49(6) of the Fourth Geneva Convention is classified as a war crime. The term “war crime” has no clear, universally accepted definition, but essentially war crimes are those violations of the laws of war so grave that they have been specially designated by the international community as an extraordinary class of offence whose reprehensible nature would “shock the conscience of all right-thinking people” (to use the words of Cory J. in R. v. Finta, [1994] 1 S.C.R. 701). Laws against war crimes are generally aimed at atrocities against civilians, prisoners of war, and other non-combatants.

A war crime, to put it succinctly, is a very serious matter. Further, it is easy to see why the offence in question falls into this special category. Article 49(6) is essentially a law to prevent colonialism. One need look no further than the current condition of the indigenous peoples whose domain once spanned the entire expansive breadth of this continent to appreciate the gravity of the consequences territorial dispossession can inflict upon a population. Most war crimes deal with offences against individuals or groups of individuals, but the offence in Article 49(6) is one that threatens the integrity of an entire people. It clearly qualifies as an exceptional offence of higher order that is of grave concern to the global community as a whole.

The plaintiffs’ allegation that the defendants are participating in war crimes is not only very serious but highly politically charged. Thus, although the Geneva Conventions Act, R.S.C. 1985, c. G-3, and the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, confers on Canadian courts criminal jurisdiction over war crimes committed anywhere in the world, a prosecution of the Bil’in defendants would never proceed in Canada. Under the Canadian legislation, it would require the personal consent of the Attorney General or Deputy Attorney General, which, due to such political considerations, would be next to impossible to obtain. However, the plaintiffs have framed participating in war crimes as a civil wrong, invoking the standards of conduct articulated in the Geneva Conventions Act and the Crimes Against Humanity and War Crimes Act to argue that the defendants are liable in tort under Article 1457 of the Civil Code of Quebec, R.S.Q., c. C-25, which sets out the basic principle of extra-contractual civil liability under Quebec civil law:

1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

In bringing this claim, the plaintiffs have become the first in Canada to institute a civil claim for war crimes since a failed attempt by the family of Shidane Arone to bring a civil claim in Ontario courts for Arone’s torture-death at the hands of Canadian peacekeeping soldiers in Somalia (which was dismissed in an unreported judgment).

The defendants, not to be outmatched in creativity, filed in response a series of motions to dismiss, pleading no cause of action, state immunity, lack of standing, forum non conveniens, and even res judicata.

The Judgment

Cullen J. dismissed most of these motions either in whole or in part. Notably, he also accepted, for the first time in Canada, that the commission of a war crime constitutes a civil wrong:

[175] A war crime is an indictable offence. As such, it is an imperative rule of conduct that implicitly circumscribes an elementary norm of prudence, the violation of which constitutes a civil fault pursuant to art. 1457 C.C.Q.

He further accepted that a person may also commit a civil wrong by knowingly participating in a war crime:

[176] In theory, a person would therefore commit a civil fault pursuant to art. 1457 C.C.Q. by knowingly participating in a foreign country in the unlawful transfer by an occupying power of a portion of its own civilian population into the territory it occupies, in violation of an international instrument which the occupying power has ratified. Such a person would thus be knowingly assisting the occupying power in the violation of the latter’s obligations and would also become a party to a war crime, thereby violating an elementary norm of prudence.

However, the good news for the plaintiffs ends there. Despite delivering the not altogether stunning ruling that the commission of a war crime does, indeed, constitute a civil wrong in Canada, Cullen J. nevertheless exercised his discretion under CCQ Article 3135 to decline jurisdiction on the grounds of forum non conveniens.

In some ways this result is unsurprising. The doctrine of forum non conveniens has long been a staunch ally to Canadian corporations beset by human rights claims launched from abroad. However, the plaintiffs here put up a vigorous legal resistance which was innovative and not without appeal.

One of the relevant factors in the forum non conveniens analysis in Quebec, as in common law Canada, is the law governing the dispute. In Quebec, as in the rest of Canada, the law to be applied in a tort action is the lex loci delicti – the law of the place where the tortious act occurred. However, CCQ Article 3081 provides that “[t]he provisions of the law of a foreign country do not apply if their application would be manifestly inconsistent with public order as understood in international relations” (this is roughly analogous to the public policy exception in common law conflict of laws). The plaintiffs argued that the legality of settlements with respect to the Geneva Conventions is not justiciable in Israeli courts. The law as applied by Israeli courts would fail to take account of the Geneva Conventions and, insofar as it would condone the commission of a war crime recognized under both domestic and international law, would be “manifestly inconsistent with public order as understood in international relations.” Accordingly, sending the claim for disposition to Israel would lead to a result that would offend this notion of “public order.”

Furthermore, it is questionable whether Israel can even be considered an available forum, let alone an appropriate one. Insofar as the Israeli courts are effectively unable to hear the action framed as it is in terms of war crimes, it could be said that this claim is not one that is even capable of being tried in Israel. Declining jurisdiction in favour of the Israeli courts would leave the plaintiffs with no viable alternative forum in which to pursue their claim, which would plainly not be in the interests of justice.

Either analysis presents a compelling argument. It would plainly be unjust to send a civil suit for war crimes to the forum whose state is allegedly responsible for those war crimes, particularly where the legality of state action with respect to war crimes is not a justiciable issue. To support their position, the plaintiffs filed the affidavit of Orna Ben-Naftali, a professor of international law whose expertise lies chiefly in the field of international humanitarian law. Prof. Ben-Naftali explained how it is the judicial policy of Israeli courts to decline to review the legality of settlements with respect to international humanitarian law. The defendants, for their part, filed the affidavit of Israeli attorney Renato Jarach, which was substantially in agreement on the fact that Israeli courts would not review the legality of settlements with respect to war crimes, but pointed out that it was not for lack of legal tools to give judgment, but rather because a judicial determination with such broad political aspects should defer to the political process. At trial, counsel for the defendants pleaded respect for the principle of judicial deference to executive action in areas of government policy.

Cullen J. rejected the plaintiff’s argument by rejecting the evidence of Prof. Ben-Naftali – although, as we shall see, not in a way that entirely prefers Mr. Jarach’s evidence either. Embarking on his own interpretations of the Israeli case law, he concluded that it is not for political reasons that Israeli courts refrain from applying international humanitarian law to disputes respecting individual rights, but because the 1949 Geneva Conventions do not form part of domestic statute law in Israel. Furthermore, when the Israeli High Court of Justice was ruling on this question in the 1970s, it did not consider the 1949 Geneva Conventions to be rules of customary international law (which are automatically incorporated into the domestic law of all developed nations). In other words, Israeli courts do not apply the Geneva Conventions simply because they are not incorporated into Israeli law. Noting that “[a] similar requirement exists in Canada, where international instruments require legislative action to form part of Canadian domestic law,” he concluded that this requirement was not “manifestly inconsistent with public order as understood in international relations” within the meaning of CCQ Article 3081. Accordingly, the juridical advantage that the plaintiffs sought is not the advantage of being able to plead the Geneva Conventions, but rather the merely procedural advantage of not having to argue to an Israeli court that the Geneva Conventions have, since the 1970s, become part of customary international law (and therefore part of Israeli law). This minor juridical advantage, he found, is not enough to justify asserting jurisdiction, in light of the other connecting factors which, he concluded, pointed to Israel as the more appropriate forum.

Analysis

With respect, I am unable to agree with the reasoning of Cullen J. For the present purpose, I assert no position as to the legality of Israeli settlements under international law, or the commission of war crimes by Israel, or the state of Israeli law. However, I do agree with the basic reasoning that war crimes, by virtue of their nature, are a special category of higher-order wrongful conduct that would “shock the conscience of all right-thinking people,” and are consequently of deep concern to the global community as a whole. Given the grave and universally condemned nature of the acts alleged—acts which undoubtedly offend “public order as understood in international relations”—I feel that Cullen J.’s reasoning fails to disclose an adequate basis for declining jurisdiction—jurisdiction which the Quebec court, by virtue of the defendants’ domicile, is legally entitled to assert. I call attention, on this point, to the SCC’s citation in Spar Aerospace Ltd. v. American Mobile Satellite Corp., [2002] 4 S.C.R. 205, 2002 SCC 78 of the principle of forum non conveniens that in Quebec, “the plaintiff’s choice of forum should only be declined exceptionally, when the defendant would be exposed to great injustice as a result.”

I have some reservations, first of all, with the manner in which Cullen J. arrives at his determinations on Israeli law. The content of foreign law is not a question of law but a question of fact, which must be proven by expert evidence. A judge cannot simply disregard the pleadings of the parties and interpret the foreign law as he or she sees fit, as would be the case with domestic law (for example, SCC jurisprudence). Yet there is a strong argument to be made that this is exactly what Cullen J. did. The defence expert, Mr. Jarach, did not argue the point that Cullen J. ultimately relied on—namely, that the Geneva Conventions are non-justiciable merely because they are not considered customary international law. By embarking on his own analysis of Israeli case law and substituting his own legal interpretations of the judgments, and thereby arriving at factual conclusions that were not advanced in the testimony of any of the relevant experts, Cullen J. seems to skirt dangerously close to the limits of his judicial authority.

That said, I profess to having no expertise as to the proper interpretation of Israeli law and would not presume to challenge such a conclusion. Assuming, therefore, that Cullen J. properly came to the correct factual determination, and that the Geneva Conventions are indeed non-justiciable in Israel merely because they are not considered customary international law, I still fail to perceive the deductive progression between such a factual determination and the legal conclusions reached by Cullen J.

The plaintiffs’ argument, as I understand it, is that the failure of Israeli courts to apply the Geneva Conventions would in and of itself lead to a result “manifestly inconsistent with public order as understood in international relations,” insofar as it would condone the commission of a war crime. The reason behind the failure to apply such law—be it legal or political—is irrelevant. Rather, the relevant question is whether war crimes—prohibited as they are under international humanitarian and international criminal law and as indictable criminal offences under our own domestic penal law—are themselves acts that are “manifestly inconsistent with public order as understood in international relations.” If the answer is in the affirmative, then sending the claim to an Israeli court would lead to the application of a law that is “manifestly inconsistent with public order as understood in international relations,” regardless of the reasoning behind this law.

For this reason, I believe Cullen J. misses the point entirely by characterizing the question of whether the Fourth Geneva Convention is customary international law as “central to the dispute.” Although I happen to believe there is a very strong case to be made that, notwithstanding the Israel High Court of Justice’s opinion, the relevant norms of the Fourth Geneva Convention are indeed part of customary international law, I am of the opinion that this question is not central, but is, at best, peripherally relevant to the dispute.

I am further unconvinced by Cullen J.’s argument that, since 30 years have passed since the Israeli High Court of Justice pronounced in 1979 that the 1949 Geneva Conventions had not yet become part of customary international law, it is now open for the plaintiffs to argue before an Israeli court that since that time, the Geneva Conventions have indeed crystallized into customary international law. It seems only logical that a domestic plaintiff pleading that the application of a foreign law would lead to an unjust result ought to be entitled to presume that the foreign court will apply the law as it currently stands. It seems unreasonable to require the plaintiff to ask the foreign court to change the law on the strength of abstract speculation, wholly unsupported by evidence, that the foreign court may be receptive to such a change now that the current state of the law is 30 years old.

International Humanitarian Law

There is a further passage in the judgment where Cullen J. issues some remarks on the topic of international humanitarian law that raise interesting questions. After qualifying Prof. Ben-Naftali as an expert in “International Humanitarian Law,” Cullen J. offers the following commentary on her area of expertise:

[248] Professor Ben-Naftali refers to “International Humanitarian Law”. According to Sir Ian Bownlie [sic] the similar expression of “International Human Rights Law” is a convenient but perhaps confusing category of reference devoid of intrinsic substance:

Many lawyers in academic life refer to an entity described as “International Human Rights Law” which is assumed to be a separate body of norms. While this is a convenient category of reference, it is also a source of confusion. Human rights problems occur in specific legal contexts. The issues may arise in domestic law, or within the framework of a standard-setting convention, or within general international law. There is thus the law of a particular State, or the principles of the European Convention on Human Rights, or the relevant principles of general international law. In the real world of practice and procedure, there is no such entity as “International Human Rights Law”.

There is a key difference, however, between “international human rights law” and Prof. Ben-Naftali’s actual words, “international humanitarian law.” International humanitarian law is, of course, the field of law governing the rules of armed conflict between nations. Otherwise known as the laws of war or the law of armed conflict, it is the specific field of law that governs, inter alia, the commission of war crimes. The term “international human rights law” may very well be a “confusing category of reference devoid of intrinsic substance” (more on this contentious point below). International humanitarian law, however, is undoubtedly a well-defined and highly specialized field of law, and moreover the precise field of law that is implicated in this dispute.

It is puzzling why Cullen J. would conflate two decidedly distinct entities in such a manner. With the greatest respect to Cullen J., who for the most part delivered a thoughtful and well-reasoned opinion on a highly complex matter, the most likely reason seems to be that the judge, a specialist in civil and commercial litigation, simply failed to apprehend the distinction between international humanitarian law and international human rights law.

A careful examination of the rest of the decision seems to bear this explanation out. Other public international law concepts discussed in the judgment, such as customary international law, are duly defined and explained, but mysteriously there is no explanation of international humanitarian law anywhere in the judgment, outside of the confusing comparison with international human rights law. In fact, the term first appears placed inside quotation marks, as if the judge questions its universality or value. Nowhere is there any evidence to positively establish an affirmative awareness of the specialized meaning of the term.

Upon consideration, it is not inconceivable how a civil and commercial litigation specialist could develop such an impression. The precise meaning of the term “international humanitarian law” is not evident on the face of the words themselves, and the name does bear a potentially confusing similarity to the term “international human rights law.”

On its face, then, erroneously equating international humanitarian law with international human rights law appears to be merely a minor flaw in the judgment that does not affect the integrity of the decision as a whole. While it must no doubt be of no small consternation to the plaintiffs for the judge to be unaware of the name of the very field of law centrally implicated in this dispute, the judge in ruling on this motion made very little in the way of legal determinations concretely engaging international humanitarian law.

On closer consideration, however, this seemingly benign mistake does raise concerns that are serious enough to compromise the broader integrity of the decision. It raises an apprehension that every time the phrase arose in oral argument, in written submissions, or in relevant treatises that were consulted during the course of deliberations, there is a chance that the precise message may have been lost on the judge.

More significant, however, are this error’s implications on the judge’s assessment of the credibility of Prof. Ben-Naftali. An examination of the context of the passage quoted above makes it clear that Cullen J.’s purpose is to weaken Prof. Ben-Naftali’s credibility as a reliable expert and the weight of her evidence by erroneously finding that her testimony is plagued with terms that are “confusing” and “devoid of intrinsic substance.”

Further, as mentioned above, Cullen J. explicitly qualified Prof. Ben-Naftali as an expert in international humanitarian law. Accordingly, he deemed her to be an expert in a “confusing category of reference devoid of intrinsic substance,” of which “there is no such entity”—essentially, not much of a real expert in anything at all. Under this mistaken impression, he would then have assigned to her evidence a corresponding degree of weight.

It is unclear what conclusion Cullen J. may have reached with respect to the expert evidence before him had he been properly cognizant of the fact that, actually, Prof. Ben-Naftali was an expert in precisely the highly specialized and concretely defined field of international law that is squarely implicated in the dispute. Had he not mischaracterized her expertise, he may not have been so quick to substitute his own interpretation of Israeli law for hers. Whatever the case, it is clear that Cullen J.’s accidental conflation of international humanitarian law and international human rights law may have given rise to broader misconceptions that could have affected the final outcome.

International Law in Domestic Courts

The passage quoted above is not the only place where Cullen J.’s relative inexperience with respect to public international law is exposed. Later in the judgment, Cullen J. makes reference to “Israel’s absolute immunity to any judicial proceedings [in Canada]” [Emphasis added].

The term “absolute immunity” ordinarily refers to the conception of state immunity that confers on a state complete and total immunity, with no exception, from the jurisdiction of the domestic courts of another state. The doctrine of absolute immunity has been essentially defunct, at least in Canada, since at least 1982 when the federal government enacted the State Immunity Act, R.S.C. 1985, c. S-18, which codified the developing common law theory of restrictive immunity. In contrast to absolute immunity, the latter theory allows a number of exceptions to state immunity; for example, exceptions relating to commercial or criminal activity.

It is thus incorrect, and has been for some time now, to speak of Israel or any foreign state as enjoying “absolute immunity” in Canada. One expects that a judge with a stronger background in public international law would have avoided such wording, conflicting as it does with an established term of art—although given the many exceptions contained in the State Immunity Act, it is difficult to see how it could be said that Israel enjoys “absolute immunity” in either the doctrinal or the literal sense.

Further, Cullen J.’s dismissal of the term “international human rights law,” and his assumption that a sub-field of international law characterized by common subject-matter is “devoid of intrinsic substance” simply because it admits of many different sources, fundamentally misapprehends what is almost by necessary implication an intrinsic characteristic of many fields of international law. On this reasoning, there cannot be any sub-field of international law, whether “international human rights law,” “international environmental law,” “private international law,” “international trade law,” and so on.

If I were an international lawyer, I might point to these mistakes as a reflection of the generally ambivalent attitude towards public international law within the Canadian legal profession. To be sure, Canadian courts have also come out with some expertly written decisions on both state immunity and international humanitarian law. However, there are also many decisions such as Cullen J.’s where it is apparent that the judge is grappling with new and unfamiliar issues, often with unfortunate results. These kinds of issues will only arise more frequently in the future, as increasing international economic integration continues to produce more transnational litigation.

Conclusion

The plaintiffs have not yet filed an appeal, although one is expected. If Bil’in does find its way before the Court of Appeal, however, the plaintiffs certainly have a strong case to have the trial judge’s decision overturned. For the reasons outlined above, I am not convinced that Cullen J. properly identified and assessed the relevant considerations in his forum non conveniens analysis. He failed to properly assess the plaintiffs’ argument with respect to the non-justiciability of the legality of settlements under international humanitarian law in Israeli courts, and anchored his finding in an irrelevant consideration, i.e. the question of whether the reasoning behind this policy is legal or political. Further, he seriously mischaracterized Prof. Ben-Naftali’s expert evidence and qualifications and called her credibility into question on a faulty basis.

Ultimately, however, perhaps my strongest objection to this decision is what can only be characterized as its fundamental failure to give due consideration to the gravity of that special class of human rights abuses known as war crimes. Sending a civil claim for war crimes, over which the domestic courts lawfully have jurisdiction, to the courts of the same country alleged to have committed them is a proposition that ought to be suspect on its face, and to which domestic courts ought to accede only with extreme caution. Under no circumstances, in particular, should such jurisdiction be declined where, as the trial judge admitted here, war crimes are not justiciable in the courts of that country. This would lead to the grossly unjust result of leaving the plaintiff absolutely no forum in which to pursue the claim. Cullen J.’s claim that the refusal to adjudicate the commission of war crimes due not to their politically sensitive nature but because they are not customary international law essentially reduces international prohibitions against war crimes to the same status as any common treaty between nations: of no legal force in domestic courts until it is incorporated into domestic law by legislative enactment. It is a finding inconsistent with an awareness that war crimes are grave offences, not simply by virtue of their status as international law, but because they are in and of themselves serious and universally condemned violations of human rights, elevated to such exceptional status by broad international consensus—a consensus endorsed in Canada through such legislative enactments as the Geneva Conventions Act and the Crimes Against Humanity and War Crimes Act.

Cullen J. does not so much as acknowledge the difficulty this fact poses for his ultimate finding in his discussion of the “interests of justice” factor in forum non conveniens. Instead, he demurs to such factors as the plaintiffs’ failure to join any current owners or occupiers of the settlements (as if the issue concerned a mundane property dispute and not a war crime) and, incredibly enough, the need to conserve judicial resources. The non-justiciability of war crimes in Israel, meanwhile, is dismissed as akin to any mere difference between the laws of Israel and the laws of Quebec. Throughout the discussion, he seems blithely unaware of any reason why one might consider the non-justiciability of war crimes normatively problematic beyond the mere fact of simple divergence with the law of Quebec. Even on its most generous interpretation, such reasoning demonstrates nothing short of a complete failure to apprehend the exceptional character of the matters at stake in this litigation.

Such a ruling ought to trouble any observer, regardless of where on the spectrum he or she may fall with respect to the broader political context of this dispute. The issue at stake here is whether a civil claim for war crimes against a Canadian corporation can be heard in Canada, and not (at this stage) whether such war crimes were actually committed. The narrow and restrictive approach that Cullen J. took to the plaintiff’s arguments on justiciability and the failure to give effect to the exceptional level of censure that the international community has chosen to attach to war crimes could set a dangerous precedent that any observer measurably disturbed by the commission of war crimes in any form would be quick to condemn.

As authorities such as Binnie J. have noted, “[t]he enforcement mechanisms for human rights have lagged… [Y]ou cannot have a functioning global economy with a dysfunctional global legal system: there has to be somewhere, somehow, that people who feel that their rights have been trampled on can attempt redress.” In order to facilitate the introduction of such enforcement mechanisms, Canadian courts must act to significantly curb their current proclivity towards the liberal application of the forum non conveniens doctrine in such cases. Especially since the 1999 forum non conveniens stay in the Cambior case in Quebec (alongside a costs order against a Quebec NGO bringing a claim on behalf of Guyanese citizens that alleged health and other harms from a cyanide spill by a subsidiary of a Canadian gold mining company), Canadian courts have attracted—and often affirmed—a reputation as weak and ineffective when it comes to transnational corporate accountability. For example, when Sudanese citizens sought to sue Canadian company Talisman Energy, they went to US courts, arguing that the receptivity of Canadian courts to allowing a claim against a Canadian company was at best unclear, notwithstanding the fact that it was palpably clear Sudanese courts offered no viable alternative.

As it stands, the Bil’in judgment is a setback in the fight against war crimes, crimes against humanity, and human rights violations everywhere. If the reasoning stands, Canadian corporations will continue to successfully take shelter behind forum non conveniens regardless of the gravity of the allegations against them or the capacity of the foreign court to adjudicate the claim.

The author attended the hearing of Bil’in (Village Council) v. Green Park International Ltd. in Montreal in June with the assistance of the Nathanson Centre on Transnational Human Rights, Crime and Security. He has also provided legal research support and feedback to counsel for the plaintiffs.

Dust they are, and unto dust they shall return, yet human beings have difficulty resigning themselves to living in dust. Sometimes, weary of brooms and buckets of water, they are not unwilling to turn to the courts to get rid of it. This case is proof of that.

So begins the Supreme Court of Canada’s decision in St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, a case from Québec dealing with a class action by the residents of a community against a cement plant in their midst.

Facts

In the early 1950s, St. Lawrence Cement Inc. (SLC) built a large cement plant in Villeneuve (later amalgamated with the city of Beauport and then with the city of Québec). Soon after the plant began operating in 1955, problems arose with the residents of houses on land adjacent to SLC’s property, and environmental incidents began occuring as early as 1956. On several occasions in the 1980s, the Ministère de l’Environnement responded to complaints about problems with dust, odours and noise and, between 1991 and 1996, received many complaints about environmental incidents. During the same period, SLC invested several million dollars for environmental protection purposes, including almost $8 million on the installation of new dust collectors for the kilns, between 1991 and 1995. SLC stopped operating the plant in 1997.

On June 4, 1993, Huguette Barrette and Claude Cochrane filed a motion in the Quebec Superior Court for authorization to institute a class action, naming themselves as the representatives litigants of a class consisting of Beauport residents living in areas near the plant. The motion was granted on March 31, 1994, and the action filed on August 1, 1994.

Courts Below

Recognizing SLC’s efforts to comply with the relevant legislative standards, the trial judge found that SLC had committed no fault. However, she held that art. 976 of the Civil Code of Québec (C.C.Q.) established a scheme of no-fault liability such that SLC could be held civilly liable on the basis that the cement plant’s emissions of dust, odours and noise had caused annoyances to the representatives and the members of the class that were abnormal and excessive.

SLC appealed to the Québec Court of Appeal who rejected the trial judge’s theory of no-fault liability and instead found SLC liable based on proven fault. According to the Court of Appeal, SLC had an obligation to ensure that its equipment functioned optimally; as soon as a breakdown occurred, the plant must cease operating until the equipment properly repaired. SLC had failed to do so on numerous occasions during the period covered by the claim. The Court of Appeal therefore found that SLC had committed a fault and was, as a result, civilly liable. Based on this analysis of civil liability, the trial judge’s damages awards were reduced to exclude annoyances that had not resulting from SLC’s fault.

SLC appealed with regard to the Court of Appeal’s conclusion that it was liable on the basis of fault. The representatives cross-appealed, seeking recognition of a no-fault liability scheme in respect of neighbourhood annoyances that are excessive and to restore the trial judge’s conclusions on the quantum of damages.

Issue

While SLC raised several defences to avoid or limit its civil liablility for damages, the main issue before the Court was whether there is, under art. 976 C.C.Q., a liability scheme based on the extent of the annoyances suffered by the victim rather than on the conduct of the party who allegedly caused them. A no-fault liability regime would expand the scope of the existing rules regarding civil liability in Québec.

Decision

A unanimous Court dismissed the appeal by SLC and allowed the cross-appeal, restoring the decision of the trial judge with respect to no-fault liability and the damages to be awarded to the plaintiffs. The Court expressly rejected the theory of real liability adopted by the Court of Appeal, which unduly limited the scope of art. 976 and the possibility of instituting a class action.

Article 976 of the C.C.Q. states that:

976. Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom.

In the process of determining that art. 976 permitted scheme of no-fault liability, the Court examined three cases from the Supreme Court of Canada and the Quebec Court of Appeal dating as far back as 1896, in which no-fault liability was imposed in Québec upon a finding of excessive neighbourhood annoyances. These cases confirmed that where there is excessive interference with one’s enjoyment of their property, he or she should have the right to recover damages even where there is absence of fault; the fact that the defendant had shown care and caution did not exempt him from liability.

There was also evidence that the Québec legislature rejected prior drafts of art. 976 that imposed a positive obligation on owners to not cause excessive inconveniences to neighbours. Instead, it adopted a version that was silent on the question of liability resulting from neighbourhood annoyances.

The Court also reviewed academic commentaries that favoured the recognition of a scheme of civil liability based on the simple existence of abnormal neighbourhood disturbances without the requirement of proving fault, as it would be consistent with the approach taken in Canadian common law.

At common law, the tort of nuisance – defined as unreasonable interference with the use of land – is focused on the harm suffered by the victim rather than on wrongful conduct by the defending party. The interference must be intolerable to an ordinary person, which must be assessed by considering factors such as the nature, severity and duration of the interference, the character of the neighbourhood, the sensitivity of the plaintiff’s use and the utility of the activity.

The principle of the relativity of rights states that one party’s right to exercise his or her right of ownership of property must necessarily limited by the other party’s right to enjoy his or her property. The Court concluded that a no-fault liability regime in respect of nieghbourhood disturbances struck a fair balance between the rights of owners or occupants of neighbouring lands.

Conclusion

It was almost disappointing to find that the SCC decision with the best opening paragraph of the year turned out to be so unexciting; even the facts of the case and the injuries suffered by the class were mundane. Without disrespect to the plaintiffs, the annoyances complained of consisted of clinker dust or cement dust that demanded many residents to wash their cars, windows and garden furniture frequently; there was sulphur, smoke and cement odours as well as noise from the cement plant’s operation which “caused annoyances that were beyond the limit of tolerance” in different parts of the community. (para. 95)

As this case dealt specifically with art. 976 C.C.Q., it would have little application to other provinces beyond Quebec. However, the Court’s disposition of this case was not at all surprising. It seems only proper to interpret the Québec civil law in a manner that will be consistent with the English common law that applies to the rest of the country, by applying principles from the tort of nuisance in addressing the provision regarding neighbourhood disturbances in the Civil Code of Québec.

R. v. Grover

In a brief three paragraph decision, the unanimous SCC reinstated Mr. Grover’s conviction for attempted obstruction of justice. Mr. Grover had tampered with fire inspection records after a property he owned and managed had a serious fire. Mr. Grover exercised his right to testify at trial. His explanations of the false records and his knowledge of their falsification were rejected by the trial judge. Mr. Grover also stated that he visited several tenants who suffered injuries during the fire, and did so for solely compassionate reasons. One of the tenants testified that, on the contrary, she was asked to sign a document indicating that all of the fire inspections had occurred. On this evidence, he was convicted.

On appeal, the Saskatchewan Court of Appeal overturned the conviction, arguing that Mr. Grover may not have known of the various fire inspection requirements, and wanted his tenant to sign the form merely to maintain perfect records for the inevitable inspection following the fire. On that basis, the Court of Appeal ruled (in heavy jargon) that a properly instructed jury, acting judiciously, could not reasonably have rendered a conviction.

The SCC ruled quite forcefully that, after having considered the theory advanced by the defence and the testimony of the accused (which flatly contradicted the theory advanced by the Court of Appeal), the finder of fact’s conclusions are to be respected. It is not open to an appellate court to substitute its own theory of events in place of those found by the trial judge. In this case the finder of fact properly considered all the relevant evidence, and therefore the conviction was restored.

ABB Inc. v. Domtar Inc.

At 121 paragraphs, this case is considerably more complicated than the other released today. However, the reader will have to bear with my somewhat incomplete summary of the case. Only the headnote is currently available in English; the judgment itself is so far only available in French.

The facts of the case are relatively straightforward: Domtar purchased a defective boiler from ABB Inc. for approximately $13 million dollars. After the boiler’s defects became apparent, Domtar sued ABB Inc. for $13 million, sued ABB Inc.’s insurer Chubb, and sued its own insurers, Lloyd’s and Arkwright. Before trial, Lloyd’s settled for $1.5 million.

At trial, the Quebec Superior Court rejected the latent defect claim, but found for Domtar on the duty to inform claim; the court ruled that ABB must pay the $13 million, but that Lloyd’s payment ought to be deducted from the sum as they had been subrogated to Domtar’s rights after the settlement. Chubb only insured ABB Inc. against latent defects, so the claim against it was dismissed.

The Court of Appeal and the SCC largely agreed, so I will only summarize the SCC’s ruling.

Under the Civil Code of Quebec, there is an onerous duty imposed on sellers to provide products free from latent defects. The manufacturer is presumed to be the consummate expert with respect to its own products. Therefore, products supplied with latent defects are not subject to the usual limitations on liability. In order for the buyer to prove that a product has a latent defect, he/she must prove four things:

1. it must be latent
2. it must be sufficiently serious
3. it must have existed at the time of the sale; and
4. it must have been unknown to the buyer

The SCC determined that all of these elements were made out by Domtar. The SCC defined the second element as follows: “A defect will be considered to be serious if it renders the good unfit for its intended use or so diminishes its usefulness that the buyer would not have bought it at the price paid.” The SCC further clarified that, though Domtar was a sophisticated buyer and was in fact aided by an expert, that does not excuse ABB Inc. from failing to make known a latent defect to the buyer. Things would have been different, of course, if Domtar had in fact been aware of the defect; it would not have been “latent” in such a case.

After establishing each of the above conditions, the SCC discussed the defences available to ABB Inc. ABB Inc. had argued that it had acted in the utmost good faith throughout the sale process, and that it was ignorant of the defect. The SCC rejected such a low threshold:

The manufacturer must show that it did not know about the defect and that its lack of knowledge was justified, that is, that it could not have discovered the defect even if it had taken every precaution that the buyer would be entitled to expect a reasonable seller to take in the same circumstances. To absolve a manufacturer from liability will be justified only if the manufacturer shows that it had full knowledge of the technology in its field at the time the good was designed and that the defect in question cannot be attributed to it.

Having established the much narrower claim of latent defect, the SCC did not go on to analyze the duty to inform claim. They said that, in any event, it was subsumed into the latent defect claim.

With respect to the army of insurers, the SCC changed the liability set out by the trial judge. Because Lloyd’s policy explicitly exempted latent defects, the SCC argued that the settlement could not have been in respect of latent defects. Therefore ABB Inc. was responsible for the full $13 million and Domtar received an apparent windfall of $1.5 million. Because Chubb insured ABB Inc. against latent defects, they were liable with ABB Inc. to pay Domtar its damages. Arkwright’s policy also exempted latent defects, so it was excluded from the web of payments altogether.