| Bil'In (Village Council) c. Green Park International Inc. |
2009 QCCS 4151 |
SUPERIOR COURT
CANADA
PROVINCE OF QUÉBEC
DISTRICT OF MONTREAL
No: 500-17-044030-081
DATE: September 18, 2009
IN THE PRESENCE OF: THE HONOURABLE LOUIS-PAUL CULLEN, J.S.C.
BIL'IN (VILLAGE COUNCIL)
and
THE LATE AHMED ISSA ABDALLAH YASSIN
Plaintiffs
and
BASEM AHMED ISSA YASSIN
and
MAYSAA AHMED ISSA YASSIN
and
MAZIN AHMED ISSA YASSIN
and
LAMYAA AHMED ISSA YASSIN
and
NORA AHMED ISSA YASSIN
and
TAGREED AHMED ISSA YASSIN
and
MOHAMMED AHMED ISSA YASSIN
and
ABDULLAH AHMED ISSA YASSIN
and
ESRAA AHMED ISSA YASSIN
and
YOSRA YOUSEF MOHAMMED YASSIN
and
AYESHA ALABED YASSIN DAR YASSIN
Plaintiffs in continuance of suit
v.
GREEN PARK INTERNATIONAL INC.
and
GREEN MOUNT INTERNATIONAL INC.
and
ANNETTE LAROCHE
Defendants
JUDGMENT
TABLE OF CONTENTS
Preamble
I- THE PROCEEDINGS
II- THE ISSUES
III- DISCUSSION
Costs
The Palestinian people still yearn for the freedom and dignity denied them
for decades. The Israeli people yearn for long-term security. Neither can
achieve their legitimate demands without a settlement of the conflict.
Today, we are at a critical juncture in efforts to move beyond crisis
management and renew efforts toward genuine conflict resolution.
United Nations Secretary-General Ban Ki-moon, February 2007 |1|
Preamble
[1] The State of Israel captured the West Bank of the Jordan River in June 1967.
[2] Military occupation continues more than forty years later. |2|
[3] Plaintiff Bil'in Village Council (hereafter, the "Council") is the municipal authority over
the Palestinian village of Bil'in.
[4] Plaintiff Ahmed Issa Abdallah Yassin passed away in 2009. The Plaintiffs in
continuance of suit are his heirs.
[5] The Plaintiffs' civil action is largely summarized in the following paragraph of the
motion introducing their action:
24. The Village pleads that the corporate Defendants, on their own behalf and as
agents of the State of Israel, are constructing residential and other buildings and
are creating a new dense settlement neighbourhood on the lands of the Village
and are marketing and selling therein condominium units and other built up areas
to the civilian population of the occupying power, the State of Israel, for the
purpose of transferring the civilian population of Israel to the village's land and
removing the population of the Village from their land. In so doing, the corporate
Defendants are aiding, abetting, assisting and conspiring with the State of Israel
in carrying out an illegal purpose. The Defendant, LaRoche, is deemed legally to
be liable for the conduct of the corporate Defendants in her capacity as their sole
registered director and officer. The Defendants, and each of them, are therefore
in violation of the aforesaid Article 49(6) of the Fourth Geneva Convention dated
August 12, 1949, Section 3(1), Schedule V Protocol 1, Part 1, Article 1 (1) and
Schedule V Protocol 1, Part V, Section 11, Article 85 (4)(a) of the Geneva
Conventions Act, R.S. 1985, c. G-3 , Articles 8(2)(b(viii) and 25 (c) of the Rome
Statute of the International Criminal Court dated July 17, 1998, Section 6(1)(c),
6(3) and 6 (4) of the Canadian Crimes against Humanity and War Crimes Act
S.C. 2000, c. 24, Sections 6 and 8 of the Charter of Human Rights and
Freedoms, R.S.Q., c. C-12 and Article 1457 of the Civil Code of Québec.
[6] More succinctly, the Plaintiffs allege that by transferring part of its civilian population
to territory it occupies in the West Bank, Israel is violating international law as well as
Canadian and Québec laws and that by constructing and selling condominiums
exclusively to Israeli civilians, the Defendants are assisting Israel in the perpertration of
war crimes.
[7] On those bases, the Plaintiffs seek declarations that the Defendants are in violation
of the legal provisions mentioned above. They also seek punitive damages, the
immediate cessation of the Defendants' activities, the demolition of the buildings in
dispute and a complete accounting.
[8] The Plaintiffs ask that their action be decided according to Canadian and Québec
laws, rather than the laws where the injurious acts and injuries allegedly occurred,
arguing that the courts of Israel will refuse to find that Israel is in violation of the
international instruments on which they rely.
[9] The Defendants are domiciled in Québec.
[10] They present preliminary motions to immediately dismiss the Plaintiffs' action.
To this end, they seek recognition of judgments rendered in Israel.
[11] This judgment does not determine whether Israel or the Defendants have
perpetrated an illegality. It only decides whether the Superior Court of Québec will
recognize judgements rendered in Israel and, at a later date, hear the merits of the
Plaintiffs' civil action, where issues of public international law, private international law
and domestic law intersect.
[12] This judgment is drafted in the language that the parties have used in their
proceedings and arguments.
I- THE PROCEEDINGS
(a) The "Second Further Amended and Particularized Motion Introducing a Suit
(article 110 Code of Civil Procedure)" dated June 12, 2009 (hereafter, the
"Action")
[13] The Action has grown in length from 14 to 32 pages, excluding notices, primarily
in response to the Defendants' request for particulars. |3| It is often repetitious and
circular, occasionally contradictory. |4|
[14] In substance, the Action contains the following allegations:
1- The village of Bil'in (hereafter, "Bil'in") is located in the West Bank, in Palestinian
territory occupied by Israel.
2- The Palestinian Authority appointed the Council in 2003, pursuant to the Oslo
accords. Democratically elected in 2003, the Council has the mandate and
authority to commence the Action. The Council claims municipal jurisdiction over
the lands at the center of the dispute, not their ownership, and brings the Action
on its own behalf and on behalf of the residents of Bil'in.
3- Defendants Green Park International Inc. and Green Mount International Inc.
(hereafter, the "Corporations") are registered in the Province of Québec. They
are building condominiums on Bil'in lands and selling those buildings illegally.
4- Defendant Annette Laroche is the sole director and officer of the Corporations.
As such, she is deemed to be their principal and controlling mind and is therefore
personally liable for their illegal conduct. By allowing herself to be named their
director, she is deemed to be a participant in their illegal activities.
5- The late Mr. Yassin was Head of the Council from 2003 to January 20, 2009,
when he passed away.
6- Mr. Yassin owned two parcels of the land on which the Corporations are carrying
out their activities, specifically parcel 35, which straddles the area where the
Corporations are carrying out construction, and parcel 62, which is situated
entirely inside that area. Mr. Yassin had no title deed, but had Jordanian Land
Tax documents, which are usually and customarily relied upon by Israel as the
basis for determining land ownership claims in cases of disputed land ownership.
The only available description of the location of Mr. Yassin's lands is a fiscal
map.
7- In 1991, Israel declared that portions of Bil'in lands were "state land". (The
preliminary motions were not argued on the basis that this was an "annexation",
i.e. a unilateral declaration of sovereignty over a territory.) The Plaintiffs admit to
having no knowledge of what the Defendants knew about this.
8- In 1996, Israel unlawfully assigned the state lands mentioned above to the local
council of Modi'in Illit for the construction of a Jewish settlement in the pursuit of
a policy of populating the West Bank with Israeli civilians and removing its
Palestinian population to ensure that such settlements would remain part of
Israel in any future agreement with Palestine (hereafter, the "Policy"). The
Plaintiffs admit to having no knowledge of what the Defendants knew about the
assignment of those lands by Israel to Modi'in Illit.
9- Afterwards, the local council of Modi'in Illit assigned the lands to the
Corporations. The Corporations have claimed and will claim that they have
purchased the lands (hereafter, the "Lands") for development.
10- Bil'in residents could access the Lands for agricultural purposes until 1998, when
the Israeli Army severely restricted their access. Since late 2000, they cannot
access the Lands.
11- Israel has never annexed the West Bank. The Lands are therefore subject to
international law, including "International Humanitarian Law".
12- As an occupying power, it is unlawful for Israel to re-assign land over which it
only has military control for non-military or security uses.
13- Israel and, either wilfully or negligently, the Defendants, are in breach of the
following provisions:
(1) Article 49 (6) of the Fourth Geneva Convention, dated August 12, 1949,
ratified by Israel in 1951:
49. ("…")
The Occupying Power shall not deport or transfer parts of its own civilian
population into the territory it occupies.
[Emphasis added.]
(2) Subsection 3(1) of Part I of the Canadian Geneva Conventions Act |5| and Article 85(4)(a)
of Schedule V of the same act:
3. (1) Every person who, whether within or outside Canada, commits a
grave breach referred to in Article 50 of Schedule I, Article 51 of Schedule
II, Article 130 of Schedule III, Article 147 of Schedule IV or Article 11 or
85 of Schedule V is guilty of an indictable offence, and
(a) if the grave breach causes the death of any person, is liable to
imprisonment for life; and
(b) in any other case, is liable to imprisonment for a term not exceeding
fourteen years.
SCHEDULE V
(Subsection 2(2))
PROTOCOL I
PROTOCOL ADDITIONAL TO THE GENEVA CONVENTIONS OF 12
AUGUST 1949, AND RELATING TO THE PROTECTION OF VICTIMS
OF INTERNATIONAL ARMED CONFLICTS (PROTOCOL I)
Article 85 — Repression of breaches of this Protocol
1. The provisions of the Conventions relating to the repression of breaches
and grave breaches, supplemented by this Section, shall apply to the
repression of breaches and grave breaches of this Protocol.
("…")
4. In addition to the grave breaches defined in the preceding paragraphs and
in the Conventions, the following shall be regarded as grave breaches of this
Protocol, when committed wilfully and in violation of the Conventions or the
Protocol:
(a) the transfer by the occupying Power of parts of its own civilian
population into the territory it occupies, or the deportation or transfer of all
or parts of the population of the occupied territory within or outside this
territory, in violation of Article 49 of the Fourth Convention;
("…")
(f) Without prejudice to the application of the Conventions and of this
Protocol, grave breaches of these instruments shall be regarded as war
crimes.
[Emphasis added.]
(3) Articles 8(2)(b)(viii) and 25 (3)(c) of the Rome Statute of the International
Criminal Court, dated July 17, 1998 (hereafter, the "Rome Statute"):
Article 8
War crimes
("…")
2. For the purpose of this Statute, "war crimes" means:
(b) Other serious violations of the laws and customs applicable
in international armed conflict, within the established framework of
international law, namely, any of the following acts:
("…")
(viii) The transfer, directly or indirectly, by the
Occupying Power of parts of its own civilian population
into the territory it occupies, or the deportation or transfer
of all or parts of the population of the occupied territory
within or outside this territory;
("…")
Article 25
Individual criminal responsibility
1. The Court shall have jurisdiction over natural persons pursuant to
this Statute.
2. A person who commits a crime within the jurisdiction of the Court
shall be individually responsible and liable for punishment in accordance
with this Statute.
3. In accordance with this Statute, a person shall be criminally
responsible and liable for punishment for a crime within the jurisdiction of
the Court if that person:
("…")
(c) For the purpose of facilitating the commission of such a
crime, aids, abets or otherwise assists in its commission or its
attempted commission, including providing the means for its
commission;
[Emphasis added.]
(4) Subsections 6 (1)(c) and (4) of the Canadian Crimes Against Humanity and War Crimes
Act: |6|
6. (1) Every person who, either before or after the coming into force of
this section, commits outside Canada
(a) genocide,
(b) a crime against humanity, or
(c) a war crime,
is guilty of an indictable offence and may be prosecuted for that offence in
accordance with section 8.
("…")
(4) For greater certainty, crimes described in articles 6 and 7 and
paragraph 2 of article 8 of the Rome Statute are, as of July 17, 1998,
crimes according to customary international law, and may be crimes
according to customary international law before that date. This does not
limit or prejudice in any way the application of existing or developing rules
of international law.
[Emphasis added.]
(5) Articles 4, 6 and 8 of the Québec Charter of Human Rights and Freedoms |7| (hereafter, the "Québec Charter"):
4. ;Every person has a right to the safeguard of his dignity, honour and
reputation.
("…")
6. Every person has a right to the peaceful enjoyment and free
disposition of his property, except to the extent provided by law.
("…")
8. No one may enter upon the property of another or take anything
therefrom without his express or implied consent.
(6) Article 1457 of the Civil Code of Québec (hereafter, the "C.C.Q."):
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.
Where he is endowed with reason and fails in this duty, he is responsible
for any injury he causes to another person by such fault and is liable to
reparation for the injury, whether it be bodily, moral or material in nature.
He is also liable, in certain cases, to reparation for injury caused to
another by the act or fault of another person or by the act of things in his
custody.
14-The Corporations are carrying out the Policy for their profit, on their own
behalf and as agents of Israel with the latter's support, by the construction
on the Lands, since February 2005, of residential and other buildings as
well as by the marketing and selling of condominium units or other built-up
areas exclusively to the civilian population of Israel, thereby aiding,
abetting, assisting and conspiring with Israel in carrying out an illegal
purpose.
15-The Defendants have acted wilfully: upon consenting to her appointment as
sole director and officer of the Corporations, Defendant Laroche was
aware or deemed to be aware that she would be liable for all the
wrongdoing of the Corporations. In the alternative, the Defendants have
negligently violated the laws upon which the Plaintiffs rely.
16-The Defendants have the mental capacity to know and understand the
consequences of their acts and to be able to discern right from wrong.
17-The Fourth Geneva Convention was ratified by Israel. It is considered
"customary international law" |8|
binding on all countries. (This allegation is central
to the dispute.)
18-The Plaintiffs make no allegation that the Corporations are occupying
powers.
19-The Council relies on the policy of the Government of Canada with respect
to Israeli settlements in occupied territory.
20-With respect to Mr. Yassin, the Defendants are in breach of art. 1 of the
Québec Charter, which provides that "Every human being has a right to
life, and to personal security, inviolability and freedom."
21-The Plaintiffs and the residents of Bil'in are denied freedom of movement
and access to the Lands.
22-The dignity and honour of the Council are violated, it is has been denied
peaceful enjoyment of its property and the Defendants deprive it and its
indigenous population of the peaceful enjoyment and free disposition of
their Lands, thereby also depriving them of sources of income from
agricultural activity that took place previously on the Lands.
23-The damages suffered by the Plaintiffs are the direct and immediate result
of the Defendants' faults and were reasonably foreseeable.
24-The Plaintiffs expressly acknowledge that no claim for compensatory
damages will be sought in the Action and that, with respect to damages,
the only claim made is for punitive damages.
25-The matters at issue before the Superior Court are not "justiciable" by the
Israeli courts, i.e. not capable of being decided according to legal
principles. (This allegation is also central to the dispute.)
26-The Plaintiffs have exhaustively and to the best of their knowledge,
information and belief provided full particulars and complete
documentation of every allegation.
(b) The preliminary motions before the Court
[15] The Defendants bring two preliminary motions:
(a) An "Exception to Dismiss Action and, de Bene Esse, to
Recognize Judgments (Art. 165(1), 785, 165(3) and 165 (4) C.C.P.)"
(hereafter, the "Exception to Dismiss"), and
(b) an "Application to decline jurisdiction - forum non
conveniens (Art. 3135 C.C.Q.)" (hereafter, the "Declinatory Exception").
[16] The Exception to Dismiss concludes in the immediate dismissal of
the Action on several alternative grounds:
- The Defendants are entitled to jurisdictional immunity as alleged agents of
Israel.
- The High Court of Justice of Israel (hereafter, the "HCJ") has already
rendered judgement on the substance of the Action (res judicata). In this
respect, the Defendants specifically seek recognition of three judgements
of the HCJ, nos. 3998/06, 143/06 and 1526/07.
- The Plaintiffs do not have sufficient legal interest to bring the Action.
- The Action is unfounded in law, even if the facts alleged are true.
[17] Finally, the Defendants' Declinatory Exception concludes in the
dismissal of the Action on the single ground that although the Superior
Court has jurisdiction over the Action, the HCJ is clearly in a better
position to decide.
II- THE ISSUES
[18] The preliminary motions therefore raise the following issues:
1- Are the Defendants entitled to immunity?
2- In the negative, should the Superior Court recognize HCJ judgments nos.
3998/06, 143/06 and 1526/07?
3- In the affirmative, have those judgments finally and completely settled all
of the issues in the Action (res judicata)?
4- In the negative, do the Plaintiffs have the necessary legal interest to bring
the Action?
5- In the affirmative, is the Action unfounded in law, even if the facts alleged
are true (art. 165 (4) C.C.P.)?
6- In the negative, is the HCJ clearly in such a better position than the
Superior Court to decide the Action that the exceptional exercise of the
power to decline jurisdiction is warranted?
[19] These issues will be considered in the same order, bearing in mind
that the Plaintiffs' allegations are assumed to be true only with respect to
the Exception to Dismiss based on art. 165 (4) C.C.P.:
165. The Defendant may ask for the dismissal of the action if:
1° There is lis pendens or res judicata;
("…")
3° The plaintiff has clearly no interest in the suit;
4° The suit is unfounded in law, even if the facts alleged are true.
[Emphasis added.]
III- DISCUSSION
1- Are the Defendants entitled to immunity?
[20] Pursuant to s. 3(1) of the State Immunity Act |9|(hereafter, the "SIA"), a "foreign
state" is immune from the jurisdiction of any court in Canada.
[21] An agency of a foreign state is also entitled to the same immunity.
[22] The SIA defines as follows "agency of a foreign state" and "foreign state":
2. In this Act,
"agency of a foreign state" means any legal entity that is an organ of the foreign
state but that is separate from the foreign state;
"foreign state" includes
(a) any sovereign or other head of the foreign state or of any
political subdivision of the foreign state while acting as such in a
public capacity,
(b) any government of the foreign state or of any political
subdivision of the foreign state, including any of its departments,
and any agency of the foreign state, and
(c) any political subdivision of the foreign state;
[Emphasis added.]
[23] The inclusive definition of a "foreign state" has been found to encompass
functionaries. |10|
[24] The Defendants do not claim that they are agents or functionaries of
Israel.
[25] They argue nonetheless that the Action is entirely based on the allegation
that they are acting as "agents of the State of Israel".
[26] This contention is inaccurate. The Plaintiffs also plead in the alternative
that the Defendants are acting "on their own behalf". |11| Those allegations are
reinforced by the allegation that the Corporations are "conspiring" with Israel in
carrying out an illegal purpose. |12|
[27] The allegations that the Corporations are acting on their own behalf are
undisputed. If this is true, the Corporations cannot claim jurisdictional immunity
pursuant to the SIA.
[28] Defendant Laroche is also alleged to be an agent of Israel. |13| This general
allegation is repeatedly particularized, however, by the allegation that she is
"deemed" to be an agent of Israel |14| because she is the sole director of the
Corporations, which are themselves allegedly acting as agents of Israel. |15|
[29] It follows that if the Corporations are acting on their own behalf rather than
as agents of Israel, Defendant Laroche isn't an agent of Israel.
[30] Above all, the Defendants do not contend that they are truly agents of
Israel. Moreover, one of their alternative arguments is predicated on the
opposite assumption. |16| It is axiomatic that pursuant to the SIA, immunity may
only be claimed legitimately by a "foreign state" or by an "agency of a foreign
state".
[31] The Defendants are therefore not entitled to state immunity on the basis of
the Plaintiffs' unproven and alternative allegations that they are agents of Israel.
2- Should the Superior Court recognize HCJ judgments nos. 3998/06,
143/06 and 1526/07?
[32] Each judgement will be reviewed briefly.
(a) Summary of HCJ no. 3998/06
[33] The petition named "Ahmad Isa (sic) Abdallah Yassin, Head of Bil'in
Village Council" as one of the 21 petitioners |17| whereas the respondents included
"Green Park Inc." and "Green Mount Inc."
[34] The petitioners were arguing that the declarations issued in 1990 and
1991 by the Commissioner for State Property in the Judea - Samaria Region
(hereafter, the "Commissioner"), whereby specific areas in Bil'in became state
property, were illegal by reason of deceitful misrepresentations.
[35] They were seeking to annul the 1990 and 1991 declarations by the
Commissioner and to freeze all planning and authorization proceedings of
Detailed Outline Plan 210/8/1 for the Mattihyahu East neighbourhood in Modi'in
Illit.
[36] On November 9, 2006, the HCJ dismissed the petition without costs.
[37] The HCJ found that "it was not proven that the Declarations … were made
with the aim of circumventing the processes determined in Law of the purposes
of bestowing rights to land of the type under discussion." |18|
[38] The HCJ did not determine whether "Green Park Inc." and "Green Mount
Inc." were the owners of the areas in dispute. It emphasized, however, that
"perusal of the petition does not reveal that the Petitioners have any basis for the
claim that they hold rights to the land that is the subject of the Declarations". |19| In
this connection, the HCJ commented: |20|
(We must mention that the claims made to the Appeals Committee, inter alia by
some of the Petitioners, concerning rights to the lands that are the subject of
Declaration 10/91 - were rejected, while no appeal whatsoever was submitted in
reference to Declaration 20/90).
[39] Mr. Yassin was one of the unsuccessful claimants before the Appeals
Committee.
[40] As appears from the petition, Mr. Yassin implicitly admitted that the
"Appeals Committee" had dismissed his claim to part ownership of parcel 62,
whereas the same authority had partially maintained his claim to part ownership
of parcel 35 as a result of which a portion of that parcel had been removed from
the declarations of state property. |21|
[41] The judgements of the HCJ in nos. 143/06 and 1526/07 were delivered
together on September 5, 2007.
(b) Summary of HCJ no. 143/06
[42] The petitioners included "The Head of the Bil'in Village Council, Ahmad
Issa Abdallah Yassin". The respondents again included "Green Park Inc." and
"Green Mount Inc."
[43] While the petition was pending, the HCJ found that construction work was
being carried out illegally in Mattihyahu East, i.e. without the required permits. It
granted an order nisi and issued an interim order preventing any further building
or occupancy.
[44] Israel cancelled Detailed Outline Plan 210/8 (hereafter, the "First Plan")
and recommenced the planning process. Detailed Outline Plan 210/8/1
(hereafter, the "Second Plan") addressed the defects in the First Plan: enclaves
of private land belonging to Palestinians were to be returned to their original
condition, fenced off, and access to them was to be ensured. The Second Plan
was submitted anew to the approval process and was ultimately approved in
February 2007.
[45] The petitioners argued that the approval process of the Second Plan for
the Mattihyahu East neighbourhood in Modi'in was fatally flawed by reason of
various defects, including failure to publish the Plan in Arabic, deviations from the
jurisdictional boundaries of the local council of Modi'in and, once more, the
alleged illegality of the Commissioner's declarations in 1990 and 1991 that the
land was state property.
[46] The petitioners sought to enforce applicable planning laws, to freeze all
construction pursuant to the Second Plan, and to bring to trial those responsible
for the illegal construction as well as for other violations of existing laws.
[47] The HCJ awarded costs to the petitioners but found that the Second Plan
had cured the defects of the First Plan.
(c) Summary of HCJ no. 1526/07
[48] The petitioners included "The Head of the Bil'in Village Council". "Green
Park Inc." and "Green Mount Inc." were again among the respondents.
[49] The petitioners had initiated their petition after the approval of the Second
Plan but before it had become valid.
[50] They argued that the existence of an Outline Plan was a condition
precedent to the approval of a Detailed Plan. They had not raised this argument
before.
[51] The petitioners also argued for the following reasons that the planning
authorities had illegally refused to consider their claims of title:
i) The alleged illegality of the Commissioner's declarations in 1990
and 1991 that the lands were state property. Following the judgment in
HCJ no. 3998/06, the petitioners abandoned this argument.
ii) Instead of their earlier general claim challenging the status of
state property of the entire area of the Plan, the petitioners were
submitting specific claims contesting this status with respect to each plot
of land.
[52] The HCJ found that the argument that the existence of an Outline
Plan was a condition precedent to the approval of a Detailed Plan could
have been raised in 1999 and was therefore no longer debateable, the
only matters remaining open to dispute being the changes between the
First Plan and Second Plan.
[53] The HCJ also dismissed the additional arguments raised by the
petitioners because they had not been submitted in due course.
[54] Regarding land rights, the HCJ stated: "The planning decision does
not determine rights to land. The petitioners' rights, to the extent that any
such exist, remain theirs". |22|
(d) Discussion
[55] Article 785, para. 2 C.C.P. allows a Defendant, in response to a
claim, to apply for recognition and enforcement of a decision rendered
outside Québec.
[56] A Québec court shall recognize a decision rendered outside
Québec except in any one of the six cases enumerated in art. 3155
C.C.Q.:
3155. A Québec authority recognizes and, where applicable, declares
enforceable any decision rendered outside Québec except in the following cases:
(1) the authority of the country where the decision was rendered had no
jurisdiction under the provisions of this Title;
(2) the decision is subject to ordinary remedy or is not final or enforceable at the
place where it was rendered;
(3) the decision was rendered in contravention of the fundamental principles of
procedure;
(4) a dispute between the same parties, based on the same facts and having the
same object has given rise to a decision rendered in Québec, whether it has
acquired the authority of a final judgment (res judicata) or not, or is pending
before a Québec authority, in first instance, or has been decided in a third
country and the decision meets the necessary conditions for recognition in
Québec;
(5) the outcome of a foreign decision is manifestly inconsistent with public order
as understood in international relations;
(6) the decision enforces obligations arising from the taxation laws of a foreign
country.
[57] The Plaintiffs object that the HCJ had no jurisdiction over the
subject matter of the judgments (art. 3155, para. 1 C.C.Q.).
[58] This argument stands in complete contradiction to their consistent
conduct before the HCJ. Having repeatedly petitioned the HCJ and, in
one case, been awarded costs, the Plaintiffs cannot argue now that the
HCJ did not have jurisdiction over the subject matter of their own
petitions. |23|
[59] The rules pertaining to the recognition of decisions rendered
outside Québec lead to the same conclusion.
[60] To determine whether the exception to recognition set out in art.
3155, para. 1 C.C.Q. should be given effect, reference must be made to
arts. 3164 to 3168 C.C.Q. and, if necessary, to arts. 3134 to 3140
C.C.Q. |24|
[61] Article 3164 C.C.Q. determines that the jurisdiction of a foreign
court will be established if (i) a Québec court would have had jurisdiction
over the dispute and (ii) the dispute is substantially connected with the
foreign country:
3164. The jurisdiction of foreign authorities is established in accordance with the
rules on jurisdiction applicable to Québec authorities under Title Three of this
Book, to the extent that the dispute is substantially connected with the country
whose authority is seised of the case.
(i) Jurisdiction of the HCJ
[62] In order to determine if a Québec court would have had jurisdiction
over the subject matter of the judgments, one must refer to Title Three of
Book Ten of the Civil Code of Québec, i.e. to arts. 3134 to 3154 C.C.Q.
[63] Under these articles, specific rules regarding jurisdiction vary
according to the nature of the action: arts. 3141 to 3147 C.C.Q. apply to
personal actions of an extrapatrimonial and family nature, arts. 3148 to
3151 C.C.Q. apply to personal actions of a patrimonial nature and arts.
3152 to 3154 C.C.Q. apply to real and mixed actions.
[64] In Bern v. Bern, |25| the Court of Appeal confirmed the accuracy of
the following definitions of "real actions", "personal actions" and "mixed
actions":
In Vocabulaire juridique, Association Henri Capitant, 3rd Edition, P.U.F., "action
réelle", "action personnelle" and "action mixte" are accurately defined as follows,
at pages 20-21:
réelle. Action par laquelle on demande la reconnaissance ou la
protection d'un droit réel (droit de propriété, servitude, usufruit,
hypothèque) et qui est mobilière si le droit réel exercé porte un
meuble. Ex. action en revendication d'un meuble perdu ou volé;
immobilière si le droit porte sur un immeuble. Ex. action en
revendication d'un immeuble.
personnelle. Action par laquelle on demande la reconnaissance
ou la protection d'un droit personnel (d'une créance) quelle qu'en
soit la source (contrat, quasi-contrat, délit, quasi-délit) et qui est,
en général, mobilière, comme la créance dont l'exécution est
réclamée (ex. action en recouvrement d'un prêt d'argent) mais qui
peut être immobilière, si cette créance l'est aussi. Ex. l'action en
délivrance de tant d'hectares de terre dans un terrain de
lotissement.
mixte. Action par laquelle le demandeur agit tout à la fois en
reconnaissance d'un droit réel et en exécution d'une obligation.
Ex. l'action en résolution de la vente exercée contre l'acheteur
pour défaut de paiement du prix; l'action par laquelle l'acquéreur
ou le donataire demande à être mis en possession de l'immeuble
dont il est devenu propriétaire par la vente ou la donation.
[65] The Plaintiffs argue that the judgments were of an administrative
nature only. Neither the nature nor the subject matter of the final judicial
decisions rendered by the HCJ constitutes a bar to their recognition.
[66] The Plaintiffs further argue that the judgments pertain to real
property situated in an occupied territory, not within Israel. In this
connection, the Plaintiffs do not indicate, however, which domestic law
applied in the West Bank other than the law of the occupying power.
[67] In any event, the nature of the rights in dispute before the HCJ was
not "real" or "mixed".
[68] In HCJ no. 3998/06, the HCJ emphasized that the petitioners'
alleged property rights in the lands were not in issue. Consequently, the
nature of the dispute cannot be characterized as "real". The same can be
said in respect of HCJ nos. 143/06 and 1526/07.
[69] Various authorities of the State of Israel were named
respondents. |26| In addition, the Corporations clearly submitted to the
jurisdiction of the HCJ.
[70] Consequently, whether the judgments concerned personal actions
of an extrapatrimonial or patrimonial nature, the HCJ had jurisdiction
pursuant to arts. 3141 or 3148, par. 5 C.C.Q.:
3141. A Québec authority has jurisdiction to hear personal actions of an
extrapatrimonial and family nature when one of the persons concerned is
domiciled in Québec.
3148. In personal actions of a patrimonial nature, a Québec authority has
jurisdiction where
("…")
(5) the Defendant submits to its jurisdiction.
[71] Finally, arts. 3165 to 3168 C.C.Q. must also be considered.
[72] Here, only arts. 3165 and 3168 C.C.Q. are potentially relevant.
[73] Article 3165 C.C.Q. plainly does not bar the jurisdiction of the HCJ:
3165. The jurisdiction of a foreign authority is not recognized by Québec
authorities in the following cases:
(1) where, by reason of the subject matter or an agreement between the parties,
Québec law grants exclusive jurisdiction to its authorities to hear the action which
gave rise to the foreign decision;
(2) where, by reason of the subject matter or an agreement between the parties,
Québec law recognizes the exclusive jurisdiction of another foreign authority;
(3) where Québec law recognizes an agreement by which exclusive jurisdiction
has been conferred upon an arbitrator.
[74] To the extent that the petitions were of a patrimonial nature, art.
3168 C.C.Q. further confirms the jurisdiction of the HCJ by reason of the
fact that the Corporations submitted to the court's authority:
3168. In personal actions of a patrimonial nature, the jurisdiction of a foreign
authority is recognized only in the following cases:
(1) the Defendant was domiciled in the country where the decision was
rendered;
(2) the Defendant possessed an establishment in the country where the decision
was rendered and the dispute relates to its activities in that country;
(3) a prejudice was suffered in the country where the decision was rendered and
it resulted from a fault which was committed in that country or from an injurious
act which took place in that country;
(4) the obligations arising from a contract were to be performed in that country;
(5) the parties have submitted to the foreign authority disputes which have
arisen or which may arise between them in respect of a specific legal
relationship; however, renunciation by a consumer or a worker of the jurisdiction
of the authority of his place of domicile may not be set up against him;
(6) the Defendant has recognized the jurisdiction of the foreign authority.
[Emphasis added.]
(ii) Substantial connection of the dispute with the foreign country
[75] Whether the HCJ had jurisdiction because one of the respondents
was domiciled in Israel or because the Corporations recognized its
jurisdiction, there appears to have been a substantial connection between
the petitions and Israel.
(e) Conclusions with respect to recognition of the HCJ judgments
[76] The three judgments must be recognized.
3- Have the judgments of the HCJ finally and completely settled all of
the issues in the Action (res judicata)?
[77] In Rocois Construction Inc. v. Québec Ready Mix Inc., Gonthier J.
indicated that res judicata is essentially designed to avoid a multiplicity of
court proceedings and the possibility of contradictory judgments for the
ultimate purpose of protecting the security and stability of social
relationships. |27|
[78] The conditions under which a party to a proceeding is bound by an
earlier judgment are expressed in art. 2848, para. 1 C.C.Q. The earlier
judgment must be final, the two demands must be based on the same
cause, involve the same juridical parties and seek the same thing:
2848. The authority of a final judgment (res judicata) is an absolute presumption;
it applies only to the object of the judgment when the demand is based on the
same cause and is between the same parties acting in the same qualities and
the thing applied for is the same.
(a) Finality
[79] Renato Jarach, an attorney at law, opposed on behalf of the
Corporations the petitions that led to HCJ judgments nos. 143/06 and
1526/07.
[80] Mr. Jarach executed an affidavit on February 1, 2009 in support of
the Defendants' preliminary motions.
[81] Paragraph 15 of his affidavit states that "all the judgments of the
High Court of Justice referred to in this affidavit are final and not subject to
further appeal". HCJ judgment no. 3998/06 is mentioned in para. 6 f) ii) of
his affidavit. HCJ judgments nos. 143/06 and 1526/07 are mentioned in
para. 6 g) i).
[82] The Plaintiffs do not dispute those statements. They argue,
however, that Mr. Jarach should not be accepted as an expert witness
because he represented the Corporations before the HCJ.
[83] They rely in this respect on the case of the Ikarian Reefer |28| where
Cresswell, J. of the Queen's Bench Division enumerated, in obiter, |29| the
duties and responsibilities of expert witnesses in civil cases. Such duties
and responsibilities include "that expert evidence presented to the Court
should be, and should be seen to be, the independent product of the
expert uninfluenced as to form and content by the exigencies of litigation",
[References omitted.] that an expert witness "should provide independent
assistance to the Court by way of objective, unbiased opinion in relation to
matters within his expertise" [References omitted.] and that an expert
witness in the High Court "should never assume the role of an
advocate". |30|
[84] The fact that Mr. Jarach represented the Corporations before the
HCJ in respect of two of the three judgments does not disqualify him from
providing opinion evidence to this Court, although it may affect the weight
given to his evidence. |31|
[85] Except for Mr. Jarach's statement that the interest of justice
supports the Defendants' Exception to Dismiss, |32| his affidavit does not run
afoul of the principles enunciated by Cresswell J. |33|
[86] Mr. Jarach's other statements include that:
- Various Israeli courts, including the HCJ, rejected the claims of ownership
made by Mr. Yassin regarding parcels 35 and 62.
- The Jordanian Villages Administration Law of 1954 governs the village of
Bil'in.
- Under the applicable Israeli, Jordanian or military occupancy laws, neither
the village of Bil'in nor the Council would have legal interest or standing to
institute the Action.
- The Plaintiffs attorned to the jurisdiction of the HCJ.
- The judgment rendered by the HCJ in Bargil v. The Government of Israel
does not support the Plaintiffs' contention that the matters at issue in the
Action are not justiciable before the Israeli courts; such matters are
justiciable before the Israeli courts and have already been submitted to
various tribunals and the HCJ.
- None of the applications made by Mr. Yassin or others against the
Corporations with respect to the Lands have been deemed by the HCJ to
be non-justiciable.
- The Plaintiffs have sought and obtained injunctive orders against the
Corporations with respect to the Modi'in Illit construction development,
have unsuccessfully advanced proprietary rights to parcels of land on
which the project is being developed and have invoked international
Conventions, namely the Fourth Geneva Convention, the Rome Statute of
the International Criminal Court and the Geneva Conventions Act.
- The residence of all Plaintiffs and of all witnesses except Defendant
Laroche, is in Israel or in the West Bank where all elements of proof are
also situated.
- The issues raised by the Plaintiffs in Israel invoked and called for an
understanding of various laws that are foreign to Canada.
- The Plaintiffs' injunctive proceedings would require recognition and
enforcement overseas.
[87] Subject to procedural requirements, relevant opinion evidence is
admissible if a person is shown to possess specialized knowledge beyond
that of the judge or jury. |34|
[88] Mr. Jarach received an LL. B. in 1969 and an LL. M. in 1974, both
from the Hebrew University of Jerusalem, as well as a license to practice
law in 1970. He practiced as an assistant to the State Attorney of the
State of Israel from 1970 to 1986, at which time he held the position of
Head of the High Court of Justice Litigation Department. He opened a
private practice in 1986 and, today, is a senior partner in one of Israel's
biggest law firms. His practice focuses on constitutional, administrative,
civil and commercial litigation.
[89] Mr. Jarach is duly authorized to practice before the courts of Israel.
[90] He is amply qualified to provide the Court with opinion evidence
regarding matters that relate to his practice as an attorney including
whether the judgments of the HCJ are final and open to any further
appeal.
[91] The Court accepts Mr. Jarach's evidence in this respect: the three
HCJ judgments are final and not subject to further appeal.
(b) Juridical identity of the parties
[92] The Plaintiffs submit that the judgments do not meet the
requirement of identity of parties for the application of res judicata.
[93] Pointing out that the word "International" does not appear in the
name of the corporate entities appearing in the judgments, they argue that
there is no evidence that the Defendants are the same entities.
[94] This disingenuous submission is plainly incompatible with the
Plaintiffs' own allegations in paras. 9, 14 and 27 of the Action, where they
implicitly acknowledge that the Corporations are the same entities that
appeared as respondents to their petitions before the HCJ. In addition,
the Plaintiffs allege that exhibits P-9, P-10, P-11, P-14 and P-15 relate to
the Corporations. These exhibits explicitly refer to "Green Park Inc." and
"Green Mount Inc", not to "Green Park International Inc." or "Green Mount
International Inc."
[95] The Corporations are without doubt the same entities that are
named in the three judgments of the HCJ.
[96] The Plaintiffs further argue that the Council and Mr. Yassin are not
named together as parties in any one of those judgments.
[97] This assertion is also incorrect: in HCJ no. 3998, "Ahmed Issa
Abdallah Yassin" is named as one of the petitioners. |35| However, Mr.
Yassin is described in the relevant petition as "Ahmad Issa Abdallah
Yassin, Head of Bil'in Village Council" and, paragraph 6 of the petition
indicates that he "…is the Head of Bil'in Village Council, who, by virtue of
his position, represents all the residents of the village. In addition, the
Appelant (Mr. Yassin) is one of the owners of plot 62 … and also one of
the owners of plot 35 …".
[98] Mr. Yassin was therefore apparently petitioning on his own behalf
as well as on behalf of the other residents of Bil'in.
[99] The evidence is unclear, however, regarding the other two
judgments. In HCJ no. 143/06, one of the petitioners is described as
"Chairman of the Village Council Bil'in Ahmed Issa Abdallah Yassin" |36| or
"The Head of the Bil'in Village Council, Ahmad Issa Abdallah Yassin". |37| In
HCJ no. 1526/07, one of the petitioners is described as "Chairman of the
Village Council " |38| or "The Head of the Bil'in Village Council". |39|
[100] In short, Mr. Yassin was apparently acting both on his own behalf
and on behalf of the Council in HCJ no. 3998 but he may have been
acting solely as a Council representative in HCJ nos. 143/06 and 1526/07.
[101] As a result, if the remaining conditions of res judicata are met, the
judgment of the HCJ in no. 3998 can be asserted against all Plaintiffs,
whereas the other two judgments can only be asserted against the
Council. |40|
(c) Identity of object
[102] In the Rocois Construction case, |41| Gonthier J. cited the following to
describe the "object" of an action:
In Traité de droit civil du Québec, vol. 9, 1965, at pp. 478-79, Nadeau and
Ducharme define the "object" of an action at law as follows:
[TRANSLATION] In an action the object is the right which the
plaintiff is exercising; it is the immediate legal benefit he seeks to
have recognized by the court.
It is thus not necessary for the two actions to have identical
conclusions; it will suffice if the object of the second action is
implicitly included in the object of the first . . . . [References
omitted.]
In Le droit civil canadien, vol. 6, 1902, discussing the conditions necessary for res
judicata, Mignault writes the following comment on the object of an action, at p. 105:
[TRANSLATION] It is of course the immediate legal benefit which is
being sought in bringing it, namely the right the party is seeking to
assert . . . but it is important to complete the rule by saying that it is
not necessary for the two actions to have exactly the same
conclusion: res judicata will exist when the object of the second
action is implicitly included in the object of the first.
[103] The immediate legal benefits sought in the Action are as follows:
1- Judicial declarations that the Defendants' conduct is in
violation of the legal provisions on which the Plaintiffs rely;
2- orders that the Defendants cease their activities on the
Lands, remove their buildings from the Lands, return the Lands to their
prior condition and provide an accounting for their activities on the Lands;
and
3- punitive damages.
[104] The essential objects of the judgments are as follows:
No. 3898/06
1- Annulment of the declarations that the Lands were state
property;
2- orders to cease building activities in Modi'in Illit.
Nos. 143/06 and 1526/07
1- Annulment of planning process;
2- ceasing construction on the Lands.
[105] The HCJ was not asked for the declarations the Plaintiffs are
seeking from the Superior Court nor was it asked to award punitive
damages or to order an accounting.
[106] The judgments and the Action share only one essential object:
ending construction activities on the Lands.
(d) Identity of cause
[107] In the context of res judicata, the concept of "cause" describes the
essential legal characterization given to facts in accordance with a rule of
law. |42|
[108] Gonthier J. formulated the applicable rule as follows: |43|
… where there is a single set of facts alleged to which two provisions are
presumed to be applicable, there will be an identity of cause when the substance
of each provision by the same legal principle produces an identical effect on the
rights and obligations of the parties.
[109] The relevant facts in the judgments of the HCJ are not the same as
in the Action. Their essential legal characterization also differs, as do the
potential effect on the rights and obligations of the parties of the
application of the legal rules to such facts.
[110] Contrary to what is essentially at issue in the Action, the judgments
did not determine whether Israel was acting in violation of international
agreements and whether the Defendants were liable on an
extracontractual basis to punitive damages, to an accounting of their
activities and to declarations that they had violated the legal rules on
which the Action is based.
[111] In other words, the HCJ did not adjudicate on the facts and law
relating to the issue of whether the Defendants were wrongfully assisting
Israel for the purpose of an illegal transfer by the latter of a portion of its
civilian population into the occupied territory of Bil'in in violation of either
the Fourth Geneva Convention or the Rome Statute.
[112] The cause in the judgments and the Action is therefore not
identical.
(e) Conclusions with respect to res judicata
[113] To sum up, the Corporations were parties to all of the judgments,
whereas Defendant Laroche was not. Mr. Yassin was a party in HCJ no.
3898/06, whereas the Council was a party in the other two judgments but
perhaps not Mr. Yassin personally.
[114] The only essential common object pertains to the stoppage of
construction on the Lands.
[115] The cause differs.
[116] There is therefore no risk of contradictory judgments.
[117] The judgments did not completely settle all of the issues that are
raised in the Action. |44|
[118] The presumption of res judicata therefore does not apply to the
Action.
4- Do the Plaintiffs have the necessary legal interest to bring the Action?
[119] Access to the courts is not absolute or unlimited.
[120] Whoever brings an action must have a sufficient interest in the
matter at issue (art. 55 C.C.P.):
55. Whoever brings an action at law, whether for the enforcement of a right
which is not recognized or is jeopardized or denied, or otherwise to obtain a
pronouncement upon the existence of a legal situation, must have a sufficient
interest therein.
[Emphasis added.]
[121] Interest is sufficient if it is direct and personal. |45|
[122] Article 165 (3) C.C.P. allows for the preliminary dismissal of an
action where the plaintiff has "clearly" no interest in the suit. In other
words, absence of interest must be obvious. |46|
[123] Where a Defendant seeks the preliminary dismissal of an action on
the basis that a Plaintiff's interest is insufficient, the facts alleged in the
action are not assumed to be true and evidence may be presented. |47|
(a) The Plaintiffs in continuance of suit
[124] The Plaintiffs in continuance of suit are not alleging any personal
rights other than those of the late Mr. Yassin. The latter alleged owning
two parcels of land that were directly affected by the activities of the
Defendants, i.e. parcels 35 and 62. This allegation is not supported by an
affidavit. It is admitted that Mr. Yassin did not have a title deed.
[125] Mr. Yassin did not produce any of the Jordanian Land Tax
documents on which he alleged to be relying.
[126] In addition, as mentioned above, in paragraphs 1, 6 and 41 of the
petition filed in HCJ no. 3898/06, Mr. Yassin implicitly admitted that his
claim to part ownership of parcel 62 had been dismissed by an "Appeals
Committee", |48| whereas his claim to part ownership of parcel 35 had been
partially maintained by the same authority, as a result of which a portion of
that parcel had been removed from the declarations of state property. He
also admitted in the Action that the Corporations will claim that they own
the Lands, including parcels 35 and 62.
[127] In short, on the one hand, Mr. Yassin's allegation of ownership is
not sworn, is unsupported by any document, an administrative body has
already dismissed his property claims insofar as they relate to the Lands
and the Corporations claim ownership of the same parcels.
[128] On the other hand, according to the HCJ, Mr. Yassin's claims of
ownership have never been finally determined.
[129] As already seen, the HCJ has repeatedly left open the substantive
issue of who owns the disputed parcels. In this connection, in HCJ no.
1526/07, the court referred to para. 39 of HCJ no. 8414/05.
[130] Judgment no. 8414/05 was delivered on September 4, 2007 at the
request of the Council. The Corporations were among the respondents.
The Council was opposing the seizure of land by Israel for the purpose of
erecting a "security fence" on lands in Bil'in.
[131] In para. 39, the HCJ reiterated that the disputed administrative
decisions had not determined the Corporations' property rights in the land
and that such rights remained to be decided according to law:
39. We have not ignored the claims made by the Real Estate Companies that
moving the fence to the west will cause harm to their title rights and economic
expectations. However, those claims do nothing to change the conclusion that
the Respondents must reconsider the route. There are several reasons why.
First, there is a gap between the position taken by the Respondents, stating that
the area on which the construction of the Mattityahu East Neighborhood is
planned is State Land and the position taken by the Real Estate Companies
stating that it is private land, purchased by them or for them. In accordance with
the decision taken by the Court in HCJ 3998/06, Yassin and others vs. The
Military Commander of the West Bank and Others (not yet published, November
9, 2006), the land that is subject of Outline Plan 210/8 were declared State
Property based on their status as State Land and not based on the ownership
claimed by private bodies. This declaration of itself does not determine or create
ownership rights in the area. To date, there has been no determination in
accordance with the substantial law, granting the ownership rights to any of the
Real Estate Companies. The discussion of the fence route of itself is not the
appropriate forum for the clarification of ownership rights. ("…")
[Emphasis added.]
[132] Whether Mr. Yassin or the Corporations own any portion of parcels
35 and 62 apparently remains to be determined in accordance with the
"substantial law".
[133] The Defendants have not clearly or obviously disproved Mr.
Yassin's claim of ownership.
[134] One cannot conclude that Mr. Yassin does not have any property
rights in parcels 35 and 62 beyond those that the Appeals Committee has
already recognized.
[135] A total absence of personal interest of the Plaintiffs in continuance
of suit in the outcome of the Action insofar as it concerns unimpeded
access to, and use of, land which Mr. Yassin alleged owning cannot be
termed "obvious".
[136] At this stage of the pleadings, the Court is not of the opinion that
the interest of the Plaintiffs in continuance of suit is insufficient and
therefore cannot refuse to render a declaratory judgment pursuant to art.
462 C.C.P.:
462. No action will be dismissed merely because it is intended to obtain a
declaratory judgment; but the court may, if it is of opinion that the interest of the
plaintiff is insufficient, or that a judgment will not put an end to the uncertainty or
controversy which gave rise to the action, refuse to render judgment.
[Emphasis added.]
(b) The Council
[137] The Council does not claim ownership of any portion of the Lands.
If it has any interest in the Action, it is not as a landowner.
[138] The Council alleges that it has municipal jurisdiction over the
Lands, |49| the authority to speak on behalf of each family of Bil'in residents
and a mandate as well as authority to commence the Action. It alleges
that the Corporations' delicts have caused it to suffer damages. In this
respect, it further alleges that the Corporations have denied it the use of
land owned by Bil'in residents and violated its dignity and honour.
[139] The mere existence of municipal jurisdiction over the Lands does
not confer any right to their use nor does it otherwise confer to the Council
a sufficient interest to seek for its own benefit the conclusions of the
Action.
[140] Only a physical person may claim violation of his or her dignity or
honour.
[141] The Council does not share with the residents of Bil'in a common
interest in the Action and did not file a mandate to appear on their behalf.
Therefore, pursuant to art. 59 C.C.P., it cannot represent them in the
Action:
59. A person cannot use the name of another to plead, except the State through
authorized representatives.
Nevertheless, when several persons have a common interest in a dispute, any
one of them may appear in judicial proceedings on behalf of them all, if he holds
their mandate. The power of attorney must be filed in the office of the court with
the first pleading; thereafter the mandate cannot be revoked except with leave of
the court and is not affected by the death or change of status of the mandators.
In such case, the mandators are jointly and severally liable with their mandatary
for the costs.
("…")
[Emphasis added.]
[142] This is not a case where standing should be granted to a person
having no personal interest in the action so that a matter of public interest
may be litigated. |50| Mr. Yassin's claim patently demonstrates that
proceedings at the initiative of the Council are not the only reasonable and
efficient way to litigate the matters raised in the Action.
[143] In Canadian Council of Churches v. Canada, |51| Cory J. stressed on
behalf of a unanimous court how granting public interest standing requires
a delicate balancing of access to the courts and the preservation of
judicial resources:
("…") However, I would stress that the recognition of the need to grant public
interest standing in some circumstances does not amount to a blanket approval
to grant standing to all who wish to litigate an issue. It is essential that a balance
be struck between ensuring access to the courts and preserving judicial
resources. It would be disastrous if the courts were allowed to become
hopelessly overburdened as a result of the unnecessary proliferation of marginal
or redundant suits brought by a well-meaning organizations pursuing their own
particular cases certain in the knowledge that their cause is all important. It
would be detrimental, if not devastating, to our system of justice and unfair to
private litigants.
[144] The Council does not have the sufficiently personal and direct
interest in the conclusions of the Action that Québec law generally
requires from a litigant. Its claim must therefore be dismissed.
5- Is the Action unfounded in law even if the facts alleged are true
(art. 165 (4) C.C.P.)?
[145] The Defendants further argue in the alternative that:
1- The rights created by the Fourth Geneva Convention inure to the
exclusive benefit of signatory states. Only states and their agents are
subject to its obligations. If the Defendants are not agents of Israel, they
are not subject to its application nor may a private party claim from them
civil redress for its alleged violation.
2- Even if they are subject to the application of the Fourth Geneva
Convention and the Rome Statute, violation of these international
instruments does not constitute a fault under Québec law.
3- Neither the Québec Charter not the Civil Code of Québec apply to the
Action.
4- The allegations against Defendant Laroche are insufficient to entail her
civil liability.
[146] The first three arguments are interrelated and will be considered
together. This will require an examination of the law that applies to the
Action.
(a) The law that applies to the Action
[147] A very brief overview of the sources of legal obligations that are
pleaded by the Plaintiffs is in order.
(i) Fourth Geneva Convention
[148] Professor Claude Emanuelli describes as follows the Fourth Geneva
Convention: |52|
In 1949, four new Geneva Conventions were adopted [Reference
omitted.]…Convention IV is new, since it is the first one dealing exclusively with
the protection of civilians in times of war. Indeed, until 1949, IHL [International
Humanitarian Law] was mainly concerned with the protection of combatants.
However, the Convention supplements some Hague Regulations on land warfare
relating to civilians. The Convention focuses on the treatment of civilians who
are under the jurisdiction of the enemy, either in its territory or in occupied
territory. To a lesser extent, it also seeks to protect civilians from attacks and
other effects of war.
[Content in brackets added.]
[149] In Article 1, the High Contracting parties undertake to respect and
ensure respect for the Convention "in all circumstances".
[150] Article 49(6) provides that "The Occupying Power shall not (…)
transfer parts of its own civilian population into the territory it occupies".
[151] The Plaintiffs allege that Israel has ratified the Fourth Geneva
Convention. |53|
[152] They further allege, and this is of vital importance, that the Fourth
Geneva Convention is considered "customary international law binding all
countries". |54| If so, the Fourth Geneva Convention is part of the domestic
(or "municipal") law of Israel. |55|
(ii) Geneva Conventions Act
[153] The Geneva Conventions Act allows prosecution in Canada of
persons accused of having perpetrated war crimes pursuant to the four
Geneva protocols.
[154] Subsection 2(2) of the Geneva Conventions Act approves the
Fourth Geneva Convention. The latter is set out in Schedule V of the act.
[155] Subsection 3(1) of the Geneva Conventions Act provides that the
commission of a "grave breach" pursuant to Article 85 of the Fourth
Geneva Convention is an indictable offence punishable by imprisonment.
"Grave breaches" include the transfer by the occupying Power of parts of
its own civilian population into the territory it occupies in violation of Article
49 of the Fourth Geneva Convention.
[156] Subsection 3(4) provides that "Proceedings with respect to an
offence referred to in subsection (1), other than proceedings before a
service tribunal (…) may only be commenced with the personal consent in
writing of the Attorney General of Canada or the Deputy Attorney General
of Canada and be conducted by the Attorney General of Canada, or
counsel acting on behalf thereof.
(iii) Rome Statute
[157] The Rome Statute creates the International Criminal Court
(hereafter, the "ICC ") to investigate and try international offences.
[158] According to Article 1, the ICC shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international
concern and shall be complementary to national criminal jurisdictions.
[159] Article 8 provides that the ICC shall have jurisdiction with respect to
war crimes in particular when committed as part of a plan or policy. It
defines "war crimes" as a list of "grave breaches of the Geneva
Conventions of 12 August 1949" and as "other serious violations of the
laws and customs applicable in international armed conflict" which include
"the transfer, directly or indirectly, by the Occupying Power of parts of its
own civilian population into the territory it occupies."
[160] Pursuant to Article 25, the ICC is given jurisdiction over natural
persons. The ICC may find a person criminally responsible and liable for
punishment for a crime within its jurisdiction, including where a person "for
the purposes of facilitating the commission of such a crime, aids, abets or
otherwise assists in its commission or its attempted commission, including
providing means of commission."
(iv) Crimes Against Humanity and War Crimes Act
[161] The Crimes Against Humanity and War Crimes Act has two main
purposes: to implement Canada's obligations under the Rome Statute and
to further Canada's capacity to prosecute persons accused of crimes
against humanity and war crimes and to punish those convicted. |56|
[162] Subsection 6(1) of the Crimes Against Humanity and War Crimes
Act provides that a person who commits a war crime outside of Canada is
guilty of an indictable offence and may be prosecuted for that offence in
accordance with s. 8. Subsection 6(1.1) futher provides that a person who
conspires to commit an offence referred to in subsection (1) is guilty of an
indictable offence. Pursuant to s. 6(2), life imprisonment may be imposed.
[163] Subsection 6(3) defines "war crime" as follows:
"war crime" means an act or omission committed during an armed conflict that, at
the time and in the place of its commission, constitutes a war crime according to
customary international law or conventional international law applicable to armed
conflicts, whether or not it constitutes a contravention of the law in force at the
time and in the place of its commission.
[164] Crimes described in paragraph 2 of article 8 of the Rome Statute
are deemed to be crimes according to customary international law (s.
6(4)).
[165] Pursuant to s. 9(3), no proceedings for an offence under s. 6 may
be commenced without the personal consent in writing of the Attorney
General or Deputy Attorney General of Canada, and those proceedings
may be conducted only by the Attorney General of Canada or counsel
acting on their behalf.
(v) Québec Charter
[166] The Québec Charter is a quasi-constitutional statute that
guarantees fundamental human rights and freedoms.
[167] The Plaintiffs claim punitive damages. Under Québec law, punitive
damages cannot be awarded unless specifically provided for by law. |57|
[168] Article 49 of the Québec Charter entitles the victim of unlawful and
intentional interference with a protected right or freedom to obtain the
cessation of such interference, monetary compensation for moral or
material prejudice resulting from such interference and punitive damages.
[169] Article 49 of the Québec Charter does not create a compensation
system parallel to art. 1457 C.C.Q. |58|
(vi) Civil Code of Québec
[170] There are no provisions for civil remedies in the Fourth Geneva
Convention, the Geneva Conventions Act, the Rome Statute or the
Crimes Against Humanity and War Crimes Act.
[171] In this respect, the Plaintiffs plead that the Defendants are liable
pursuant to art. 1457 C.C.Q., the foundation of extracontractual liability in
Québec, on the basis that the Defendants' alleged wilful participation in
Israel's alleged war crime constitutes a civil "fault".
[172] In St. Lawrence Cement Inc. v. Barrette, |59| LeBel and Deschamps JJ.
opined on behalf of a unanimous court that in some situations, the
violation of a statutory rule also constitutes a civil fault pursuant to art.
1457 C.C.Q.:
[33] As we noted above, the general rules of civil liability set out in
art. 1457 C.C.Q. are based on fault (Baudouin and Deslauriers, at p. 149).
[translation] "This is a universal concept, since it applies every time a victim
alleges that a person who caused injury is liable under the general rules" of
art. 1457 C.C.Q. (P.-G. Jobin, "La violation d'une loi ou d'un règlement
entraîne-t-elle la responsabilité civile?" (1984), 44 R. du B. 222, at p. 223). To
answer this question, the standards provided for in statutes and regulations,
often called "legislative standards", must be analysed in light of the basic concept
of civil fault.
[34] In Québec civil law, the violation of a legislative standard does not in
itself constitute civil fault (Morin v. Blais, [1977] 1 S.C.R. 570; Compagnie
d'assurance Continental du Canada v. 136500 Canada inc., [1998] R.R.A. 707
(C.A.), at p. 712; Jobin, at p. 226). For that, an offence provided for in legislation
must also constitute a violation of the standard of conduct of a reasonable
person under the general rules of civil liability set out in art. 1457 C.C.Q. (Union
commerciale Compagnie d'assurance v. Giguère, [1996] R.R.A. 286 (C.A.), at
p. 293). The standard of civil fault corresponds to an obligation of means.
Consequently, what must be determined is whether there was negligence or
carelessness having regard to the specific circumstances of each disputed act or
each instance of disputed conduct. This rule applies to the assessment of the
nature and consequences of a violation of a legislative standard.
[35] The French position is different. In French law, the violation of a
legislative standard in itself constitutes civil fault (Jobin, at p. 229). This means
that it is not necessary [translation] "to find negligence, imprudence,
carelessness or something deficient in the conduct of the person who caused the
injury" (Viney and Jourdain, at p. 328). Thus, where a legislative standard is
violated, the general rules of civil liability transform the standard into an
obligation of result, since the victim can [translation] "establish fault by proving
a simple material fact without having to show that the conduct of the person who
caused the injury was also morally or socially blameworthy" (Viney and Jourdain,
at p. 342).
[36] In Québec, art. 1457 C.C.Q. imposes a general duty to abide by the
rules of conduct that lie upon a person having regard to the law, usage or
circumstances. As a result, the content of a legislative standard may influence
the assessment of the duty of prudence and diligence that applies in a given
context. In a civil liability action, it will be up to the judge to determine the
applicable standard of conduct — the content of which may be reflected in the
relevant legislative standards — having regard to the law, usage and
circumstances.
[Emphasis added.]
[173] The relation between the violation of a statutory obligation and a
civil fault was considered in Compagnie d'assurances Continental du
Canada v. 136500 Canada inc., |60| where the insurer of a large industrial
building sued its tenants in damages. One of the tenants, Canadel, used
flammable liquids and, on a daily basis, hundreds of rags that were soiled
by these liquids by the end of the day. Each day, the rags were gathered
and stored in a metal container outside. A fire destroyed the building.
The trial judge rejected the insurer's contention that Canadel had violated
its regulatory obligations regarding storage and use of dangerous
flammable products thereby creating a presumption that this violation had
caused the fire. He also found that the cause of the fire was impossible to
determine and dismissed the claim.
[174] The Court of Appeal affirmed the dismissal of the action. Noting
that no regulatory violation had been proven, LeBel J.A., as he then was,
added that a violation of a statutory obligation does not constitute a civil
fault unless that obligation corresponds to an elementary norm of
prudence.
[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.
[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 |61| and would also become a party to a war crime,
thereby violating an elementary norm of prudence.
[177] The essential question, however, is whether the application of the
law of Québec with respect to extracontractual civil liability would be
engaged in that context rather than the law of the foreign country.
[178] Before a Québec court, the law of the country where the injurious
act occurred, |62| i.e. the lex loci delicti, governs extracontractual civil liability
unless the injury appeared elsewhere (art. 3126 C.C.Q.):
3126. The obligation to make reparation for injury caused to another is governed
by the law of the country where the injurious act occurred. However, if the injury
appeared in another country, the law of the latter country is applicable if the
person who committed the injurious act should have foreseen that the damage
would occur.
In any case where the person who committed the injurious act and the victim
have their domiciles or residences in the same country, the law of that country
applies.
[Emphasis added.]
[179] A similar rule exists in the common law provinces of Canada. In
Tolofson v. Jensen, |63| the Supreme Court of Canada overruled McLean v.
Pettigrew, refused to follow the English precedent of Chaplin v. Boys, |64|
and held that the rule of private international law that should generally
apply when adjudicating on wrongs committed in another country is the
law of the place where the activity occurred, the lex loci delicti. In this
connection, La Forest J. wrote the following with which four of his peers
unreservedly concurred: |65|
From the general principle that a state has exclusive jurisdiction within its own
territories and that other states must under principles of comity respect the exercise
of its jurisdiction within its own territory, it seems axiomatic to me that, at least as a
general rule, the law to be applied in torts is the law of the place where the activity
occurred, i.e., the lex loci delicti. There are situations, of course, notably where an
act occurs in one place but the consequences are directly felt elsewhere, when the
issue of where the tort takes place itself raises thorny issues. In such a case, it may
well be that the consequences would be held to constitute the wrong ("…")
[180] La Forest J. favoured the lex loci delicti for practical reasons as
well: |66|
The rule has the advantage of certainty, ease of application and predictability.
Moreover, it would seem to meet normal expectations. Ordinarily people expect
their activities to be governed by the law of the place where they happen to be and
expect that concomitant legal benefits and responsibilities will be defined
accordingly. The government of that place is the only one with power to deal with
these activities. The same expectation is ordinarily shared by other states and by
people outside the place where an activity occurs. If other states routinely applied
their laws to activities taking place elsewhere, confusion would be the result. ("…")
[181] Thus, applying the law of a foreign country to conduct and injury
suffered in that country is reasonable where extracontractual liability is in
issue.
[182] Consequently, the law that properly applies to the Action is not the
law of Québec but the law governing the West Bank, i.e. the law where
the injurious acts allegedly occurred and where the injuries were also
allegedly suffered.
[183] Pursuant to art. 165(4) C.C.P., the Court must postulate that the
allegations in the Action are true. Consequently, the Fourth Geneva
Convention applies in the West Bank as it has become part of customary
international law and such law is automatically part of the domestic law of
Israel. |67|
[184] This being so, it does not necessarily follow that the Defendants
would be liable under the rules governing extracontractual liability in the
West Bank. No evidence was offered regarding such rules.
[185] As already noted, the Plaintiffs do not plead the domestic law that
applies in the West Bank with respect to extracontractual civil liability. On
the contrary, they ask that the Superior Court substitute the law of Québec
to that legal regime as if the Defendants' alleged wrongful conduct had
occurred in Québec.
[186] Art. 2809 C.C.Q. supports their position. It provides that Québec
law is applied if the law of the country where the injurious act occurred is
not pleaded or proven:
2809. Judicial notice may be taken of the law of other provinces or territories of
Canada and of that of a foreign state, provided it has been pleaded. The court
may also require that proof be made of such law; this may be done, among other
means, by expert testimony or by the production of a certificate drawn up by a
jurisconsult.
Where such law has not been pleaded or its content has not been established,
the court applies the law in force in Québec.
[Emphasis added.]
[187] Since the domestic law of
extracontractual civil liability that
applies in the West Bank is not yet
pleaded |68| or proven, in addition to the
Geneva Conventions Act and the
Crimes Against Humanity and War
Crimes Act, the Québec Charter and
the Civil Code of Québec also find
application at this stage, i.e. for the
purpose of deciding the Exception to
Dismiss pursuant to art. 165(4) C.C.P.
[188] On this basis, as already noted,
the Defendants would be under the
general obligation not to prejudice the
Plaintiffs by favouring even indirectly a
breach by Israel of its undertakings as
a High Contracting Party pursuant to
the Fourth Geneva Convention.
Knowingly participating in such breach
would constitute a civil fault, as would
an intentional participation to a war
crime.
[189] Allegations of this nature are
made against the Corporations and
Defendant Laroche. |69|
[190] The Defendants' contention that
the rights created by the Fourth
Geneva Convention inure to the
exclusive benefit of signatory states
and that only states and their agents
are subject to its obligations are
therefore not decisive: if the Plaintiffs'
allegations are true, a trial judge could
find that the Corporations are at fault
for knowingly participating in Israel's
alleged illegal Policy.
[191] The Defendants argue that the
Action should be dismissed against
Defendant Laroche, however, on the
ground that the allegations against her
are insufficient to attract
extracontractual civil liability.
(b) Defendant Laroche's alleged
extracontractual liability
[192] According to the Action, the
construction of the buildings on the
Lands commenced in February 2005.
[193] The Corporations were created
in 2004. At the time, Defendant
Laroche was neither a director nor a
shareholder. This remained true until
at least April 2007. As of May 2008,
she was their sole director.
[194] The Defendants note the
absence of allegation that Defendant
Laroche had any actual knowledge of
the Corporations' activities and contend
that being their sole director and officer
does not suffice, in and of itself, to
attract personal liability on an
extracontractual basis.
[195] The Plaintiffs respond that by
allowing herself to become the sole
registered director and officer of the
Corporations, Defendant Laroche
became their principal and controlling
mind and that, as such, she is legally
deemed to have participated in all of
their wrongful acts and therefore to
have automatically become liable for
their wrongful participation in Israel's
allegedly illegal Policy. The Plaintiffs
are not attempting to lift the corporate
veil.
[196] The Defendants submit a letter
dated January 6, 2009 from the
Plaintiffs' counsel admitting that
Defendant Laroche's personal
participation in the Corporations'
alleged fault is strictly presumptive:
At this time, the Plaintiffs have no information that the Defendant LaRoche was
personally and directly involved in the construction, marketing or selling of
condominium units or that she personally solicited or otherwise encouraged or
facilitated members of the civilian population of the State of Israel to transfer and
maintain their place of residence in the Occupied Territories as alleged against
the corporate Defendants in the Further Amended and Particularized Motion
Introducing a Suit.
[197] This extrajudicial admission is
inadmissible in the context of a motion
based on art. 165(4) C.C.P. where no
evidence is allowed. |70|
[198] Under Québec law, a director
and officer of a corporation does not
incur personal liability on an
extracontractual basis merely because
the corporation itself has committed a
fault. |71| Such liability is contingent upon
his or her own extracontractual fault
(i.e. where his or her conduct differs
from that of an ordinarily prudent and
diligent director or officer in the same
circumstances) |72| or his or her actual
participation in the commission of a
fault by the corporation. |73|
[199] As the Action is framed, the
Corporations would be at fault for
having knowingly participated in Israel's
alleged war crime, whereas Defendant
Laroche would be at fault on the basis
of the allegation that she knowingly
directed the Corporations to so act.
[200] The following allegations also
allow to infer Defendant Laroche's
knowledge:
- Defendant Laroche was the sole director and officer of the Corporations
for a period of time during which the Corporations were building and
selling condominium units in the West Bank;
- the Corporations sold these units only to Israeli citizens pursuant to the
illegal Policy;
- Israeli settlements in the occupied territories of the West Bank are illegal.
[201] Under the circumstances,
particularly the location, nature, size
and complexity of the development
project, it may reasonably be inferred
that, being the only person in authority,
Defendant Laroche was aware of the
above activities and that she personally
authorized them knowing that this was
wrong.
[202] If proven, these allegations and
inferences are sufficiently serious,
precise and concordant |74| to allow the
trial judge to conclude that Defendant
Laroche knowingly directed the
Corporations to participate in the
commission of a grave illegality by
Israel - an extracontractual fault - and,
that in so doing, she also personally
committed an extracontractual fault
pursuant to Québec law. |75|
[203] Given that the Plaintiffs' injuries
may have resulted from such fault, her
personal liability cannot be excluded on
the mere basis of the allegations found
in the Action.
(c) Conclusions whether the Action
is unfounded in law even if the facts
alleged are true
[204] To summarize, the Superior
Court has jurisdiction over defendants
domiciled in Québec regarding a civil
action based on extracontractual
liability for an injury caused and
suffered in a foreign country. The law
that normally applies in such case is
the law of the country where the
injurious act occurred, i.e. where the
injury was caused. That law must be
proven. In the absence of proof, by
default, the Superior Court will apply
the substantive law of Québec.
[205] Under Québec law, a defendant
will incur civil liability if he causes
damages to another by his fault.
Knowingly favouring a breach of a High
Contracting Party's undertakings
pursuant to an international instrument
or knowingly assisting a state in the
perpetration of a war crime are both
civil faults. Assuming for purposes of
discussion that the Defendants
knowingly assisted Israel for the
purpose of committing a war crime as
alleged, the Defendants committed a
civil fault and are liable to appropriate
civil remedies. This is consistent with a
restrictive interpretation of state
immunity that limits its benefit to
sovereign entities and their agents.
[206] Given the grave consequences
of dismissing an action without a
hearing on the merits, as a rule, an
action ought not be dismissed
summarily on a motion based on art.
165(4) C.C.P. unless such action is
obviously not founded. |76| In the case at
bar, a generous reading of the Action,
considered as a whole, does not lead to
the inescapable conclusion that it is
unfounded in law even if the facts
alleged are true.
6- Is the HCJ clearly in such a better
position than the Superior Court to
decide the Action that the
exceptional exercise of the power to
decline jurisdiction is warranted?
[207] The Superior Court has
jurisdiction over the Action. The
general provisions of art. 3134 C.C.Q.
are unambiguous:
3134. In the absence of any special provision, the Québec authorities have
jurisdiction when the Defendant is domiciled in Québec.
[208] The Defendants argue that the
judicial authorities of Israel are so
clearly in a better position to decide the
Action that pursuant to art. 3135 C.C.Q.
the Court should exceptionally exercise
its discretion to decline jurisdiction in
their favour.
[209] The seminal case with respect to
the application of art. 3135 C.C.Q. is
Spar Aerospace v. American Mobile Satellite
Corp., |77| where on behalf of the Supreme
Court of Canada LeBel J. emphasized
the exceptional nature of a decision to
decline jurisdiction and noted the
explicit requirement that another
country be in a better position to
decide.
[210] The decision whether to decline
jurisdiction is based on the overall
consideration of various and variable
relevant factors, |78| none of which is
individually determinant. |79| In this
respect, evidence is admissible. |80|
[211] The following factors were
considered relevant in Spar:
1- The parties' residence, that of witnesses and experts;
2- the location of the material evidence;
3- the place where the contract was negotiated and executed;
4- the existence of proceedings pending between the parties in another
jurisdiction;
5- the location of the defendant's assets;
6- the applicable law;
7- the advantages conferred upon the plaintiff by its choice of forum, if any;
8- the interest of justice;
9- the interest of the parties;
10- the need to have the judgment recognized in another jurisdiction.
[212] Additional factors may also be
relevant according to the specifics of a
claim and contestation. In the present
case, the country where the injurious
act occurred and the country where the
injuries were suffered are also relevant.
(a) The parties' residence, that of
witnesses and experts as well as the
location of the material evidence
[213] Other than the three Defendants
who are Québec residents, the eleven
Plaintiffs in continuance of suit, all
ordinary witnesses and all expert
witnesses likely reside in the West
Bank or in Israel. This includes the
occupants of the buildings in dispute
and probably their owners.
[214] One may reasonably expect that
the Plaintiffs in continuance of suit will
testify regarding the ownership of
parcels 35 and 62, alleged restrictions
to their free access to such parcels
and, in general, the prejudice they
allegedly suffer from the Corporations'
activities.
[215] In support of the Declinatory
Exception, the Defendants have filed
the affidavit of businessman Gideon
Badt, a resident of Israel. Mr. Badt was
not examined. He states, among other
things, that:
- The Corporations were incorporated upon his instructions for domestic
Israel tax reasons only;
- the Corporations act as alter egos for and on behalf of a corporation that is
not a resident of Canada and that does not have any assets in Canada;
- the Corporations have no assets whatsoever in Québec or elsewhere in
Canada;
- Defendant Annette Laroche has not participated in any manner in the
development project in Bil'in.
[216] Most if not all of the factual
evidence will likely pertain to events
that have occurred and are occurring in
the West Bank or in Israel, and little or
no evidence to events in Québec.
Expert evidence will likely pertain to
ownership of the Lands as well as to
the laws and customs that apply in the
West Bank.
[217] Most if not all of the relevant
material things are situated in the West
Bank. This includes the Lands,
particularly parcels 35 and 62, the
buildings allegedly constructed and
sold by the Corporations and the
promotional material used to attract
purchasers.
[218] As the Plaintiffs in continuance
of suit seek the demolition of those
buildings, their inspection and valuation
may assist the court and require expert
evidence. In this respect, the court
may order an appraisal and wish to visit
the premises.
[219] The HCJ would clearly be the
preferable venue in light of the
residence of the parties and the
witnesses as well as the location of the
evidence.
(b) The place where contracts were
negotiated and executed
[220] Although the Action is based on
extracontractual liability, one may
reasonably expect that contracts
entered into in the West Bank or in
Israel will be relevant. These would
include contracts regarding the property
of the Lands as well as the construction
of the buildings in dispute and their sale
or rental. Most if not all of the relevant
contracts are likely to be written in
Hebrew or Arabic.
[221] The HCJ would clearly be the
better venue with respect to this factor.
(c) The country where the injuries
were allegedly suffered
[222] All injuries were allegedly
suffered in the West Bank.
(d) The country where the injurious
act allegedly occurred
[223] In light of the extrajudicial
admission contained in the letter from
the Plaintiffs' counsel to the
Defendants' counsel dated January 6,
2009 and of the undisputed evidence of
Mr. Badt, the injurious act, if any, did
not occur in Canada but rather in the
West Bank or in Israel.
[224] This factor also clearly favours
the HCJ.
(e) The existence in another
jurisdiction of proceedings pending
between the parties
[225] No such proceedings have been
brought to the Court's attention.
However, the HJC of Israel would
certainly be in a better position than the
Superior Court to appreciate the
significance, if any, of any previous
proceedings between Mr. Yassin and
the Corporations.
[226] According to the evidence of Mr.
Jarach, issues raised by the Plaintiffs in
Israel called for an understanding of
various laws that apply in the West
bank and that are foreign to Canada.
[227] To the extent that this factor may
be relevant, it would therefore clearly
favour referral to the HCJ.
(f) The location of the Defendants'
assets
[228] The Corporations are sued for
punitive damages in the amount of
$2,000,000.
[229] According to Mr. Badt, the
Corporations have no assets in
Québec. Their assets, if any, would
appear to be located in the West Bank,
where the buildings in dispute are
situated.
[230] The Plaintiffs claim $25,000 in
punitive damages from Defendant
Laroche. In the absence of any
evidence to the contrary, it is
reasonable to assume that her assets
are situated in Québec.
[231] Under Quebec law, punitive
damages cannot be awarded unless
compensatory damages are also
awarded. |81| The Plaintiffs have
renounced compensatory damages, |82|
but a future amendment of the Action
seeking compensatory damages
cannot be excluded.
[232] The plaintiffs also seek costs.
[233] On balance, the location of the
Defendants' assets clearly favours the
HCJ.
(g) The need to have the judgment
recognized in another jurisdiction
[234] The Plaintiffs seek, among
others, injunctions against the
Corporations, their directors, officers,
agents or any other person under their
direction or control to cease all
construction and sales activities with
respect to the buildings in Bil'in, the
demolition of such buildings and the
restoration of the Lands to their
condition prior to construction.
[235] A Québec court may issue an
injunctive order with extra-territorial
effects. |83| However, as Mr. Jarach
points out, if the Superior Court
delivered a final judgment in favour of
the Plaintiffs, they would be obliged to
have it recognized and enforced
overseas. This additional procedure
would be unnecessary if the Action
were brought before the HCJ.
[236] This factor again clearly favours
the HCJ.
(h) The applicable law
[237] As already seen, the applicable
law is that which applies in the West
Bank, not in Canada or in Québec,
unless the former is not pleaded or
proven.
[238] On the merits, the Defendants
may plead and prove the law that
applies in the West Bank.
[239] The Plaintiffs argue, however,
that such law is "manifestly inconsistent
with public order as understood in
international relations", insofar as the
HCJ refuses to adjudicate on the basis
of the "universal principles" expressed
by the Fourth Geneva Convention and
the Rome Statute regarding civilian
population transfers. Referring to
various precedents, they further argue
that Canadian courts will not give effect
to confiscatory acts of a foreign state
that purport to have extraterritorial
reach.
[240] As a result, the Plaintiffs submit
that pursuant to article 3081 C.C.Q. the
law that applies in the West Bank
should not be considered in
determining whether the HCJ would be
in a better position than the Superior
Court to decide the Action:
3081. The 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.
[241] The burden lies with the
Plaintiffs to show that the law that
applies in the West Bank should be
disregarded.
(i) The position of the HCJ regarding
the application of the Fourth Geneva
Convention in the occupied territories
[242] The Plaintiffs did not file any
judgment where the HCJ discussed the
application of the Rome Statute in the
occupied territories. The Plaintiffs
contend that the HCJ would be
unwilling to adjudicate on the alleged
violation by Israel in the occupied
territories of the Fourth Geneva
Convention. In support, they have filed
the affidavit of Professor Orna Ben-Naftali.
[243] Professor Ben-Naftali is a
Professor of Law and serves as Head
of the International Law Division at the
School of Law, The College of
Management Academic Studies, in
Israel. She holds an LL.B. from Tel-Aviv University Law Faculty, Israel, an
AM degree (History) from Harvard
University, U.S.A., a Master in Law and
Diplomacy and a Ph.D. from the
Fletcher School of Law and Diplomacy
in Massachusetts, U.S.A.
[244] Her research and publications
focus on International Humanitarian
Law and particularly the Israeli
Occupation. She has lectured in
International law in the U.S.A., Israel
and in Italy. She is the author of
International Law Between War and
Peace, a book published in Israel in
2006, of numerous articles as well as of
chapters in books and papers, many of
which pertain to the Occupied
Palestinian Territory and the conduct of
the State of Israel.
[245] Professor Ben-Naftali's
credentials undoubtedly qualify her to
give opinion evidence with respect to
International Humanitarian Law and, to
a lesser extent, to the views of the HCJ
with respect to the legality of
settlements in the Occupied Palestinian
Territories.
[246] Professor Ben-Naftali describes
as follows the core question raised in
the present case:
The Plaintiffs (hereafter Bil'in) have brought suit against the corporate
Defendants and their registered director (hereafter "the Green Park Companies")
under the provisions of the Geneva Conventions Act, R.S. 1985, c. G-3 and the
Crimes against Humanity and War Crimes Act S.C. 2000, c. 24. Pursuant to the
advice given by Mark H. Arnold, Canadian counsel to the Plaintiffs, I understand
that those statutes have been incorporated into Canadian Domestic Law, and
that they incorporate principles of International Humanitarian Law as found at
Article 49(6) of the Fourth Geneva Convention dated August 12, 1949 and
Articles 8(2)(b(viii) and 25(c) of the Rome Statute of the International Criminal
Court dated July 17, 1998. The law is clearly set out at paragraphs 15 to 20 of
the pleading.
The claim alleges that the Canadian Green Park Companies have acted
unlawfully, inter alia, by developing, marketing and constructing a residential
settlement (hereafter "settlement") for the population of the State of Israel on the
Municipal Lands of Bil'in, which are located on the West Bank of the Jordan River
in the Occupied Palestinian Territory, thereby violating International Humanitarian
and Canadian Domestic Law. That legal regime prohibits the transfer, directly or
indirectly, or the civilian population of an occupying power into the occupied
territory (page note omitted). The claim further alleges that in so doing, the
Canadian Green Park Companies have aided, abetted and assisted the State of
Israel in carrying out an illegal purpose.
[247] Professor Ben-Naftali openly
acknowledges that the Israeli Supreme
Court has accepted the Hague
Regulations of 1907 as customary
international law. These Regulations
are not in dispute. She is less
transparent, however, with respect to
the Fourth Geneva Convention which is
at the heart of the dispute: she deals
with it only in a footnote. There, she
states that it "is also recognized as
customary international law". This, as
we shall see below, is inconsistent with
the evidence as it pertains to the views
of the HCJ with respect to Article 49.
Professor Ben-Naftali also states that
"its humanitarian provisions" have been
routinely applied by the Israeli High
Court of Justice. She does not discuss
any further these two key statements
nor the two judgments she mentions in
the same footnote and which the
Plaintiffs have chosen not to enter into
evidence:
The Israeli Supreme Court, operating in its capacity as a High Court of Justice, [2]
[Reference omitted.] has accepted the Hague Regulations if 1907 as customary
international law. [3] [References omitted.] In addition, Israel ratified the Fourth
Geneva Convention "Relative to the Protection of Civilian Persons in Time of
War" in 1951. [4] These two bodies of law contain the main provisions comprising
"Occupation Law" also known as "The International Law of Belligerent
Occupation" that forms part of International Humanitarian Law. [5] [Reference
omitted.]
4 Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949. The Fourth Geneva
Convention is also recognized as customary international law and its "humanitarian provisions" have been routinely applied by the
Israeli High Court of Justice. E.g. HCJ 7015/02 Ajuri v. IDF Commander PD 56 (6) 352; HCJ 2056/04 Beit Sourik Village Council v. The
Government of Israel, PD 58 (5) 807.
[248] Professor Ben-Naftali refers to
"International Humanitarian Law".
According to Sir Ian Bownlie |84| 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".
[249] Professor Ben-Naftali's confirms
that she was asked to provide an
opinion on the issue of justiciability of
the Action before the Israeli Court and
to answer the following question:
Is the issue alleged by the Plaintiffs of violation of International Humanitarian Law
and Canadian Domestic Law justiciable before the Israeli Court, and are those
Courts willing to adjudicate on the question of the legality of settlements in the
Occupied Palestinian Territories in this case?
[250] She answers as follows:
In my opinion, the answer is negative: the core question of the legality of the
establishment of settlements is non-justiciable before Israeli Courts. In the
following, I shall (a) detail the document reviewed and briefly summarize the core
question raised in the petition; (b) offer a review and analysis of the
jurisprudence of the Israeli High Court of Justice on the matter; and (c) offer my
conclusion based on the review and analysis of said jurisprudence.
[Emphasis added.]
[251] Although professor Ben-Naftali
confirms that "The Israeli Supreme
Court, sitting as the High Court of
Justice, has legal jurisdiction in Israel
over matters brought against the State,
its military and their agencies",
following a brief outline of so-called
challenges of the legality of settlements
in the Occupied Palestinian Territory
decided by the HCJ between 1972 and
2005, she ultimately concludes:
Given that Israeli courts are unwilling to address the core question of the legality
of settlements in the OPT as a policy and practice under International
Humanitarian Law, and have declared the question of whether settlements are
legal to be non-justiciable, there appears to be no legal redress before Israeli
Courts to the claims made by Bil'in in its Québec proceeding.
[252] The Defendants contest this
conclusion.
[253] They offer in this respect the
affidavit of attorney Jarach and
judgments of the HCJ.
[254] In particular, Mr. Jarach disputes
that the decision of the HCJ in Bargil v.
Government of Israel supports the
statement contained in paragraph 29 of
the Action, that "the matters at issue
herein are not justiciable before the
Israeli Courts". The judgement in the
Bargil case is one of the judgements of
the HCJ on the basis of which
professor Ben-Naftali expresses her
opinion |85| and the only judgment of the
HCJ that the Plaintiffs have filed in this
connection.
[255] The Bargil case was decided in
August 1993. The petitioners opposed
the legality of Israeli settlements in the
occupied territories on the ground,
among others, that such settlements
were prohibited pursuant to the Fourth
Geneva Convention. Three judges
unanimously denied the petition.
[256] The majority concurred that the
issue was "unjusticiable" by reason of
the absence of a concrete dispute.
Justice E. Goldberg was the only judge
to hold that the case lacked
"institutional justicity". |86|
[257] Professor Ben-Naftali
nonetheless briefly summarizes the
Bargil case as follows:
Indeed, when the matter was raised again just over a decade later, in Bargil v
Government of Israel, the Court declined jurisdiction. In this case, the Petitioner
challenged the legality of a settlement policy of the State of Israel for the
Occupied Palestinian Territories under International Humanitarian Law. The
Petitioner alleged that State policy for settlements in the Occupied Palestinian
Territories was without military necessity and for the sole purpose of creating
permanent settlements. [Reference omitted.] In its decision, the Court reaffirmed
its reasoning in the Beth El case, and stated that the matter was non justiciable:<
….not because we lack the legal tools to give judgment,
but because a judicial determination, which does not
concern individual rights, should refer to a political process
of great importance and great significance.
[258] President M. Shamgar opined
that the issue in the Bargil case was
"unjusticiable" based on a combination
of three aspects: intervention in
questions of policy that are in the
jurisdiction of another branch of
government, the absence of a concrete
dispute and the predominantly political
nature of the issue. He stressed,
however, that the petition was
"characterized by its generality, namely
by the absence of any attempt to
establish a concrete set of facts as a
basis for the argument". |87|
[259] In this respect, President
Shamgar cited two cases decided by
the United States Supreme Court. In
Warth v. Seldin, |88| the Supreme Court
denied a petition "because it violated
the rule that the judiciary, by virtue of its
judicial self-governance, does not
consider abstract matters of sweeping
public significance that are merely
general objections on matters of policy,
best considered by the legislature or
the executive". |89| In Schlesinger v.
Reservists to Stop the War, |90| the
Supreme Court reaffirmed that "the
court does not deal with abstract
problems, unless they are linked to a
dispute with concrete implications; it will
certainly not do so if the case is one of
abstract problems of a predominantly
political nature". |91|
[260] President Shamgar also cited
Professor A. Barak who underlines, in
Judicial Discretion, |92| that a court's
central role lies in deciding disputes.
[261] President Shamgar considered
that it was irrelevant that the matter
before the HCJ concerned land in the
occupied territories and further
emphasised that the court would not
adjudicate in the abstract on matters of
public policy unrelated to a defined
dispute: |93|
In order to remove any doubt, I would add that it is not the fact that the matter
regards a dispute about land in the occupied territories that stops us from
intervening; this court has in the past dealt more than once with petitions about a
concrete dispute with regard to Jewish settlements in Judea, Samaria or the
Gaza Strip [References omitted.]. The courts, however, are only prepared to
hear objective, defined and specific quarrels and disputes, not abstract political
arguments. For this reason, the High Court of Justice has, for instance, refrained
from considering the proper or desirable water policy [Reference omitted.] … It
is not inconceivable that the court will consider a concrete issue concerning non-compliance with the law in so far as it relates to issues of water administration,
but it is not reasonable for the court to turn itself into a body that outlines the
general water policy.… In other words, the court will not deal with foreign,
defence or social policy, when the claim or petition are unrelated to a defined
dispute, merely because the petitioner or plaintiff attempt to cloak their claim or
petition on legal language.
[Emphasis added.]
[262] President Shamgar also
indicated that while the court would not
hear cases where the predominant
nature of the dispute was political, it
would take on a case even if the issue
was a mixed legal-political one: |94|
… However, if it is argued that the issue is a mixed legal-political one, I would
refer to what was explained, inter alia, in HCJ 852/86 Aloni v. Minister of Justice
[Reference omitted]. As we said there, attempts have been made to bring
predominantly political disputes into the jurisdiction of the court. In that case I
pointed out that I personally do not believe that it is, in practice, possible to
create a hermetic seal or filter that are capable of preventing disputes of a
political nature from penetrating into litigation before the High Court of Justice.
The standard applied by the court is a legal one, but public law issues also
include political aspects, within the different meanings of that term. The question
which must be asked in such a case is, generally, what is the predominant nature
of the dispute. As explained, the standard applied by the court is a legal one,
and this is the basis for deciding whether an issue should be considered by the
court, that is, whether an issue is predominantly political or predominantly legal.
[263] Justice T. Or opposed the
petition on the single ground that it did
not raise a dispute relating to a specific
settlement.
[264] His entire reasons read as
follows: |95|
The petition refers to issues of a general nature, and is, in fact, a request to the
court to give its opinion to outline in general what is permitted and prohibited with
regards to settlements in Judea, Samaria and the Gaza area.
This is not a concrete petition relating to a specific settlement, with all the special
factual details and conditions relating to such a settlement, or to an infringement
of any property rights of one of the residents of the said areas.
A petition formulated in such a way cannot be heard. Therefore, I agree with the
conclusions of my esteemed colleague, the President, that the petition should be
denied.
[265] On its face, the Bargil case
plainly does not support the view that
the HCJ would refuse to hear the
Action on the basis that the alleged
violation of Article 49(6) of the Fourth
Geneva Convention is non justiciable.
It merely expresses the well-established principle of judicial
economy whereby a court may abstain
from considering a question in the
abstract.
[266] A particular expression of this
principle is found in art. 453 C.C.P.:
453. Any person who has in interest in having determined, for the resolution of a
genuine problem, either his or her status or any right, power or obligation the
person may have under a contract, a will or any other written instrument, a
statute, an order in council, or a by-law or resolution of a municipality, may, by
way of a motion to institute proceedings, ask for a declaratory judgment in that
regard.
[Emphasis added.]
[267] In general, Canadian courts may
decline to hear a case that merely
raises a hypothetical or abstract
question. |96| This discretion cannot be
characterized as "manifestly
inconsistent with public order as
understood in international relations".
[268] The Defendants have filed two
of the other cases reviewed by
Professor Ben-Naftali in support of her
opinion: Ayub v. Minister of Defense
(1979) and Dweikat v. Government of
Israel (1979).
[269] Professor Ben-Naftali
summarizes the Ayub case as follows:
The second case in which the Israeli High Court of Justice was asked to address
the issue is Ayyub v. Minister of Defense (1978), known locally as the "Beth El"
case. [Reference omitted.] The petitioners challenged the establishment of an
Israeli Settlement in the OPT. In that case, the Israeli military seized lands
privately owned by Palestinians in the West Bank, in order to build a new
settlement, "Beth El". The Israeli Army alleged that the settlement was part of a
broader "Regional Defence Plan". The Court upheld the claim by the Israeli
Military that the settlements are lawful when they fulfil legitimate military needs.
The Court went on to rule with respect to the challenge to the legality of
settlements under Article 49(6) of the Fourth Geneva Convention (relied on in the
Bil'in claim here) and held:
this court must refrain from considering this problem of
civilian settlement in an area occupied from the viewpoint of
international law… it is best that matters that naturally belong in
the sphere of international policy are considered only in that
sphere. In other words, although I agree that the petitioners'
complaint is generally justiciable, since it involves property rights
of the individual, this special aspect to the matter
[international law] should be deemed non justiciable, when
brought by an individual to this Court (J. Landau) [emphasis and
term in brackets added].
[270] The five judges delivered the
judgment in Ayub in March 1979.
Landau J. agreed with Witkon J. and
their three colleagues expressed
agreement with both. As will be seen,
Landau J. clearly considered that
Article 49(6) of the Fourth Geneva
Convention was "non justiciable" on
legal grounds and not for political
reasons.
[271] The Ayub case involved two
petitions by landowners whose lands
were situated, respectively, near the
Beth El military base and near the
Jordan Rift.
[272] Following orders for the seizure
of the lands belonging to the Beth El
petitioners "for urgent and necessary
military needs", a Jewish civilian
settlement was established on the
lands. The petitioners disputed military
necessity and further argued that the
settlements had been established in
violation of international law.
[273] Witkon J. expressed the opinion
that "Jewish settlement in an occupied
territory - as long as there is a state of
belligerency - serves substantial
security needs". |97| He questioned
whether international law, including
Article 49 of the Fourth Geneva
Convention, had been incorporated into
the domestic law of Israel and referred
in this respect to the precedents of El
Jemmiyah El Masizia, Lalaratzi El
Makdasah v. The Minister of Defense
and Abou El-Tin v. The Minister of
Defense, that "dealt specifically with the
Hague Agreement and Geneva
Agreements". |98| Witkon J. went on to
note that "In the opinion of the judges
who gave these rulings, the two
agreements are in the realm of
international constitutive law, and
therefore one cannot rely upon them in
a municipal court in Israel". |99|
[274] In other words, the domestic (or
municipal) courts of Israel do not apply
international instruments unless they
are incorporated into Israel's domestic
law. |100|
[275] A similar requirement exists in
Canada, where international
instruments require legislative action to
form part of Canadian domestic law. |101|
This requirement is not "manifestly
inconsistent with public order as
understood in international relations".
[276] Witkon J. added that according
to an article published by Professor
Yoram Dinstein regarding the "Rafiah
Sea Front" case and to other
authorities, including
Schwarzenberger, |102| contrary to the
Hague Convention of 1907 which was
considered customary international law
and which, as such, formed part of the
domestic law of developed nations,
Article 49 of the Fourth Geneva
Convention was not considered
customary international law and had
therefore not been incorporated into the
domestic law of Israel:
…The [1949] Geneva Agreement has still remained in the realm of international
constitutive law (and therefore did not become a part of municipal law), while the
instructions of the [1907] Hague Agreement merely give expression to a law
which was at any rate accepted by all developed nations, and is therefore
considered international customary law. As a result of this article I again
reviewed the matter, and I am now satisfied, that the Hague Agreement is
accepted as customary law, which can be claimed in a municipal court.
[References omitted.] This is not so for the [1949] Geneva Agreement.
[Reference omitted.]
("…")
Intermediate Conclusion
From the material thus far we see that we must discuss the claims of the
petitioners to the extent which they rely on the Hague Agreement which is
considered international customary law, and that there is no place in this court to
discuss claims which are based on regulation 49 of the [1949] Geneva
Agreement…
[Contents in brackets and emphasis added.]
[277] Witkon J. thus acknowledged
that the status of the Hague Convention
of 1907 had changed. In addition, his
refusal to decide in 1979 on the basis
of Article 49 of the Fourth Geneva
Convention was based on the ground
that, in his opinion, the latter had not
become customary international law
and that, being conventional
international law, it did not then form
part of Israel's domestic law as it had
not been incorporated by statute into
such law. His reasons for finding that
the subject matter of the dispute was
non justiciable were therefore juridical,
not political.
[278] Landau J. concurred and gave
additional reasons why he considered
as well that Article 49 of the Fourth
Geneva Convention was not customary
international law:
Regarding paragraph 49 (6) of the [Fourth] Geneva Convention which forbids the
expulsion or transfer of civilian populations of the occupying power to the
occupied territory I agree with the opinion of my esteemed colleague that this is a
constitutive instruction and that therefore the petitioners cannot rely on it before
this court. To the written supports which my colleague has brought in regard to
this, I will add that in the commentary to this agreement, which was published
under the auspices of the Red Cross with the general edition of Dr. Pictet
(Geneva 1958), it is said regarding paragraph 49 (6) [Reference omitted.]:
"This clause was adopted after some hesitation, by the XVIIth
International Red Cross Conference"
If there were hesitations, then this surely was not an obvious instruction
according to customary international law. …
[Contents in brackets and emphasis added.]
[279] As already mentioned, judges
Asher, Bechor and Ben-Porah agreed
with their colleagues Witkon and
Landau JJ.
[280] Thus, the Ayub case essentially
confirms that, early in 1979, the HCJ
considered that Article 49 of the Fourth
Geneva Convention had not become
customary international law, which, as
such, forms part of the domestic law of
Israel and of all other nations. Instead,
the HCJ considered at the time that
Article 49 of the Fourth Geneva
Convention was conventional
international law that it could not apply
because it had not been incorporated
by statute into the domestic law of
Israel.
[281] The HCJ delivered its judgement
in the Dweikat case in October 1979.
Professor Ben-Naftali summarizes the
case as follows:
In a 1979 the Israeli High Court of justice was asked to determine the issue yet
again in Dweikat v. Government of Israel, known locally as the "Elon Moreh"
case. In this instance, the Israeli Army seized private land near the West Bank
City of Nablus for the establishment of an Israeli settlement. [References
omitted.] The State then claimed that the land was seized for military purposes
and that judicial precedent prevented the Israeli Court from hearing a petition
demanding that the Court prohibit or restrict the State's Settlement policy. The
Court dismissed the state's non-justiciability argument and ruled in favour of the
petitioners on the grounds that the government-directed army's act of seizure
had not been motivated by true military needs, but rather by ideological and
political motivations. This was the first and only case in which the Israeli High
Court of Justice judicially reviewed the legality of settlement establishment and
construction in the Occupied Palestinian Territories. Emphasizing the
controversial decision of the Court to rule on the matter of the legality of
settlements, Chief Justice Landau stated:
….There is great concern that the Court will appear to have
abandoned its appropriate place and will have entered the arena
of the public debate, and its decision will be accepted by part of
the public with applause, while it will be completely and adamantly
rejected by another part. In this sense I see myself as one whose
duty is to rule according to the law on every matter properly
brought before the Court, a duty that is indeed forced upon me,
with full advance knowledge that the wider public will not pay
attention to the legal reasoning but rather only to the final
conclusion, and the Court's status as an institution is likely to be
injured, beyond the divisive public debates. But this what we will
do, and it is our job and our duty as judges. [Reference omitted.]
[Emphasis added.]
[282] On the face of Professor Ben-Naftali's own review, the Dweikat case
does not support her conclusion that
the Action would not be justiciable
before the HCJ. Rather, it supports the
conclusion that the HCJ would not
refrain to adjudicate on a politically
controversial matter if it were properly
brought before the court.
[283] Referring to the Ayub case,
Deputy to the President Landau
confirmed in the Dweikat case that
customary international law applies and
is binding on the Military Government in
the administrative areas of Judea and
Samaria in the West Bank: |103|
…At the time, I took Section 49(6) to the Geneva Convention out of the debate
because it is part of the conventional international law, which is not binding law in
an Israeli courtroom, but I did concur with my learned colleague's opinion on the
judgeability of the matter in reference to the Hague Regulations, which are
binding upon the Military Government in Judea and Samaria because they are
customary international law….
[284] Vitkon J. distinguished as
follows customary international law and
conventional international law and
reiterated that the latter does not form
part of the law of Israel unless
incorporated through appropriate
legislation: |104|
…there is a difference between customary international law and conventional
international law. The first is part of Municipal Law, while the second is not,
unless it has been accepted through national legislation. Customary
international Law includes the Hague Regulations and therefore it is appropriate
for this Court to examine the legality of the seizure in terms of Section 52 of the
Hague Regulations and as was conducted by my eminent colleague the Deputy
to the President….If the Geneva Conventions should be viewed as part of
conventional international Law, therefore, in accordance with the international
approach and the approach that is also the norm here - the individual who has
suffered harm cannot appeal to the Courts in that state, when he has claims
against that state's authorities and demand his rights therein. This right to claim
only accrues to states signatory to such a convention and the hearings of such
claims cannot be in a court in the state and must be in an international forum. Therefore, I said in the Pichat Rafiach case and I repeated in the Beit El case,
that any expression of opinion on our part, concerning the legality of civilian
settlement in terms of the Geneva Convention is nothing more than a non-binding opinion and it would be preferable for a judge to abstain from such.
[Emphasis added.]
[285] Vitkon J.'s opinion reaffirms that
according to the HCJ in the late
seventies, the Fourth Geneva
Convention was part of conventional
international law, which contrary to
customary international law requires
enabling legislation in order to have
force of law in Israel, and that only its
signatories might avail themselves of
the rights it created.
[286] Professor Ben-Naftali offers no
review of the cases that involved Mr.
Yassin or the Council and the
Corporations before the HCJ. In this
respect, she simply writes:
Indeed, despite several court petitions filed by Bil'in, the Court has never
adjudicated or ruled upon the legality of Mattityahu East as an Israeli settlement
or on the conduct of the Defendant companies in the Occupied Palestinian
Territories under International Humanitarian Law. [References omitted.] Such an
attempt would be futile.
[287] The Court notes that in HCJ no.
8414/05, Petitioner "Ahmed Issa
Abdallah Yassin, Head of the Bil'in
Village Council" argued that the
construction of the disputed fence was
not legal, that it constituted a breach of
public international law and invoked the
advisory opinion of the International
Court of Justice delivered on July 9,
2004. |105| Deciding in favour of the
Petitioner on other grounds, the HCJ
stated that the Military Commander's
authority is anchored principally in the
Hague Regulations but also in the
Fourth Geneva Convention. |106|
[288] On the whole, the evidence
shows that the HCJ has not applied
Article 49(6) of the Fourth Geneva
Convention, not because of its
unwillingness to adjudicate on its
alleged violation by reason of the
political significance of the matter, but
either because it was unnecessary to
do so or because the HCJ considered
that it was not customary international
law (contrary to what professor Ben-Naftali states in her footnote) and that it
had not been incorporated into the
domestic law of Israel through
appropriate legislation.
[289] The fact that Canada, contrary
to Israel, has approved the Fourth
Geneva Convention by statute is
insufficient to conclude that the
application of the law of the West Bank
would lead to a result that would be
manifestly inconsistent with public order
as understood in international relations
contrary to article 3081 C.C.Q.
(ii) The position of the Government of
Canada
[290] The Plaintiffs urge the Court to
consider the position of the
Government of Canada as expressed
in a letter dated December 14, 1998 by
the Minister of National Revenue, which
the Federal Court of Appeal mentions
in a judgment it rendered in 2002 in
Canadian Magen David Adom for Israel
v. Canada. |107| The Defendants did not
object to this irregular means of
establishing a fact.
[291] The letter purports to describe
Canada's public policy with respect to
permanent settlements in the occupied
territories. Written over ten years ago
and under a different government, the
letter has minimal probative weight
regarding the present policy of the
Government of Canada and such
weight is further decreased by the fact
that the letter was not produced, so that
even the identity and level of authority
of its signatory on behalf of the Minister
remain unknown.
[292] Of course, the letter does not
express the views of the Attorney
General of Canada regarding the case
at bar.
(iii) Resolutions of the Security Council
of the United Nations and the advisory
opinion of the International Court of
Justice
[293] The Plaintiffs add that Israeli
settlements in the occupied territories
have been "condemned" over the years
by various resolutions of the Security
Council of the United Nations and by an
advisory opinion delivered by the
International Court of Justice in 2004.
[294] Israel has indeed been criticised,
apparently as a High Contracting Party
to the Fourth Geneva Convention.
Neither the Security Council nor the
International Court of Justice have
declared, however, that Article 49(6) of
the Fourth Geneva Convention was
part of customary international law |108| or
that a state that had not incorporated
this provision into its domestic law was
acting in a manner that is manifestly
inconsistent with public order as
understood in international relations.
(iv) Confiscatory act of a foreign state
inconsistent with public order
[295] The Plaintiffs also rely on art.
3081 C.C.Q. to argue that the
establishment of a Jewish settlement in
Modi'in Illit constitutes an act of illegal
confiscation manifestly inconsistent
with public order as understood in
international relations.
[296] Article 3081 C.C.Q. does not
purport to invalidate "acts" but to deny
the application of "provisions of the law"
of a foreign country, i.e. a result that
would be manifestly inconsistent with
public order as understood in
international relations: |109|
3081. The 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.
[297] Contrary to Lean and Balster v.
Estonian Cargo & Passenger
Steamship Line, |110| here, the Plaintiffs
are not attacking the application of the
provisions of a foreign statute
purporting to nationalize property
despite an insufficient consideration, or,
as in Vladi v. Vladi, |111| the application of
provisions of the law of a foreign
country that would have given a wife
minimal support, or, as in Kuwait
Airlines Corporation v. Iraqi Airways, |112|
the application of the provisions of a
decree by the Revolutionary Command
Council of Iraq pursuant to which
planes were seized during the Iraqi
invasion of Kuwait. |113|
[298] Strictly speaking, the Plaintiffs
are not contesting the application of
any "provision of the law" of Israel.
Rather, they prospectively oppose what
they presume would be a legally
unjustifiable refusal by the HCJ to apply
Article 49(6) of the Fourth Geneva
Convention on which the Action is
based. This argument is further dealt
with hereafter. |114|
[299] Most significantly, contrary to the
precedents the Plaintiffs cite, they have
offered no evidence whatsoever to this
Court of their alleged ownership of the
Lands.
[300] The judgements of the HCJ do
not support their argument that they
own property which has been
"confiscated", contrary to what was
indisputably the case in Lean and
Balster v. Estonian Cargo & Passenger
Steamship Line and in Kuwait Airlines
Corporation v. Iraqi Airways.
[301] The Plaintiffs have therefore
failed to show that article 3081 C.C.Q.
prevents giving effect to the law that
applies in the West Bank.
(v) Conclusion regarding the applicable
law
[302] There is no substance to the
Plaintiffs' argument that adjudication by
the HCJ on the basis of the laws that
apply in the West Bank would be
manifestly inconsistent with public order
as understood in international relations.
[303] Furthermore, contrary to the
HCJ, the Superior Court possesses no
expertise in respect to the laws that
apply in the West Bank.
[304] The factor of applicable law
clearly favours declining jurisdiction in
favour of the HCJ.
(i) The advantages conferred upon
the Plaintiffs by their choice of
forum
[305] The Plaintiffs wish to take
advantage of Canadian and Québec
laws and thereby ensure that they will
benefit from the Fourth Geneva
Convention and the Rome Statute
whereas the HCJ might refuse this on
legal grounds.
[306] In delivering the judgment of the
court in Amchem Products Incorporated
v. British Columbia (Workers'
Compensation Board), |115| Sopinka J.
made the point that the advantage that
a plaintiff derives by its choice of forum
is but one of the several factors
relevant to identifying the appropriate
forum and that the weight of this factor
depended on the connection to such
forum:
In my view there is no reason in principle why the loss of juridical advantage
should be treated as a separate and distinct condition rather than being weighed
with the other factors which are considered in identifying the appropriate forum….
The weight to be given to juridical advantage is very much a function of the parties'
connection to the particular jurisdiction in question. If a party seeks out a jurisdiction
simply to gain a juridical advantage rather than by reason of a real and substantial
connection of the case to the jurisdiction, that is ordinarily condemned as "forum
shopping". On the other hand, a party whose case has a real and substantial
connection with a forum has a legitimate claim to the advantages that that forum
provides. The legitimacy of this claim is based on a reasonable expectation that in
the event of litigation arising out of the transaction in question, those advantages will
be available.
[307] The case of Garantie (La),
compagnie d'assurances de l'Amérique
du Nord v. Gordon Capital Corp., |116|
instructs that the domicile of a
Defendant will not always suffice for a
legitimate claim to the advantages of a
forum.
[308] In that case, La Garantie insured
Gordon. The insurer's head office was in
Québec, whereas the insured's was in
Ontario. A dispute arose between the
parties regarding the application of the
policy. Gordon was issued a writ to sue
in Québec and, the following day,
obtained a writ to sue in Ontario, which
was never served. Gordon later
instituted declaratory proceedings in
Ontario. Gordon's Québec action was
then served. La Garantie brought a
motion in Québec to have Gordon's
action dismissed on the basis of lis
pendens and, alternatively, to stay the
Québec claim pending the final outcome
of the proceedings in Ontario. Gordon
opposed the stay on the ground that it
enjoyed a legitimate juridical advantage
in the forum of Québec.
[309] The Superior Court dismissed La
Garantie's motion on the finding that lis
pendens did not exist and that the
Québec proceedings could not be
stayed on the basis of the doctrine of
forum non conveniens. The Court of
Appeal granted the stay.
[310] Beauregard J.A. with whom
Mailhot J.A. concurred, examined
whether the mere fact that La
Garantie's domicile was situated in
Québec justified continuing the
proceedings in Québec and found that
it did not:
[TRANSLATION] Regarding the portion of this text that I have underlined,
Gordon suggests that there exists a real and substantial connection between its
claim and the Québec court and that it may therefore rely on article 2190. |117|
What is this real and substantial connection?
Gordon tells us that it is the fact that La Garantie is domiciled in Québec. It
reminds us that one cannot find a better connection between a claim and a court
than the Defendant's domicile. This is perfectly accurate in domestic law. It is
also accurate in private international law but, where two courts of two states or
two provinces both have jurisdiction over a dispute, it appears to me that one
must examine the real and substantial connection between the claim and the
court in a more "pragmatic and functional" manner. This out of a concern for
equity and order.
In the present case, such a "pragmatic and functional" examination shows that all
of the connecting factors indicate that the Ontario court is the appropriate forum
and that, except for the fact that La Garantie is domiciled in Québec, none of the
connecting factors suggest that the Québec court should hear the dispute.
[311] Similarly, in the present case,
the Québec forum has jurisdiction over
the Action solely because the
Defendants are domiciled in Québec.
[312] Mr. Badt's evidence and the
letter dated January 6, 2009 from the
Plaintiffs' counsel to the Defendants'
counsel clearly establish, however, that
this lone and apparent connection is
merely superficial: the Corporations
have no assets in Québec, are alter
egos for another corporation which
itself has no assets in Québec and
Defendant Laroche has no personal
involvement in the Bil'in project or any
actual knowledge of same.
[313] The advantage conferred to the
Plaintiffs by their choice of the Québec
forum should therefore be given very
little weight, if any.
(j) The interest of the parties
[314] It is in the interest of all the
parties that a court of competent
jurisdiction decides the Action
impartially, promptly and efficiently on
the basis of the best evidence
available. In this connection, it is
relevant to note that the burden of proof
in the Action lies with the Plaintiffs. |118|
[315] It would clearly be more practical
to try the Action in Israel rather than in
Québec in light of each and every one
of the connecting factors considered
above, including the interest of the
parties. It is also clear that the
Defendants would be seriously
prejudiced if this was not the case.
(k) The interest of justice
[316] The Plaintiffs strenuously argue
that they seek justice in the Québec
forum.
[317] However, as it is presently
framed, the Action can hardly lead to a
just result:
- The Plaintiffs have failed to implead any of the numerous owners or occupants of the buildings that they seek to have demolished, thereby depriving those persons of the right to be heard, a fundamental tenet of natural justice. |119|
- Despite having chosen not to implead the State of Israel, the Plaintiffs
indirectly seek the essential finding that it is committing a war crime,
thereby effectively by-passing Israel's absolute immunity to any judicial
proceedings. In Canada |120| as in England, |121| the scope of state immunity
extends to gross violations of international human rights.
[318] Moreover, the Geneva Conventions Act and Crimes Against
Humanity and War Crimes Act both prohibit criminal prosecution without
the Attorney General's authorisation. Although the Action is civil, it is
predicated on the finding that Israel is committing a war crime in violation
of public international law. While seeking the benefit of the Geneva
Conventions Act and Crimes Against Humanity and War Crimes Act, the
Plaintiffs are proceeding without having impleaded the Attorney General
and without his authorisation.
[319] The HCJ has jurisdiction over the Action insofar as the Plaintiffs
allege that the Defendants are agents of the State of Israel. |122| In the past,
Mr. Yassin has acknowledged the jurisdiction of the HCJ with respect to
the Lands by bringing several motions contesting the legality of various
actions undertaken by Israel.
[320] He was partially successful.
[321] He has apparently exhausted all recourses that are not based on
international law. In HCJ no. 143/06 delivered on September 5, 2007, the
HCJ commented as follows:
20. To summarize this matter: It is difficult not to gain the impression that
after the approval of the Second Plan, the Petitioners turned over every rock and
stone to find every possible planning claim, to prevent further construction and
occupancy. The propitious hour has passed for some of the Petitioners' claims
and other claims should not be accepted….
[322] And thus Mr. Yassin, and now his heirs, turn to Québec.
[323] The essence of their argument is that although Article 49(6) of the
Fourth Geneva Convention legally applies in the West Bank, the HCJ
would refuse to decide on the basis of this provision because of an
unwillingness to adjudicate on a politically sensitive matter. A review of
the evidence simply does not bear out this preconception.
[324] It is noteworthy that the Plaintiffs have not alleged and did not
argue that the HCJ is not an independent tribunal or that it would not try
the Action fairly and impartially or, more specifically, that it would not be
prepared to reconsider, in light of fresh evidence on the current practice of
states, the issue of whether Article 49(6) of the Fourth Geneva Convention
has now become customary international law.
[325] They are implicitly satisfied that the HCJ is an impartial tribunal.
Having closely examined all of the HCJ judgements filed in the record, this
Court is convinced that an informed person, viewing the matter realistically
and practically would not perceive the situation otherwise. |123|
[326] By choosing the Québec forum, the Plaintiffs are avoiding the
necessity of discharging their onus of proving before the HCJ that Article
49(6) of the Fourth Geneva Convention is indeed customary international
law as they allege, thus ensuring for themselves a juridical advantage
based on a merely superficial connection of the Action with Québec.
[327] In delivering the judgment of the Supreme Court of Canada in
Amchem Products Incorporated v. British Columbia (Workers'
Compensation Board), Sopinka J. expressed the court's opposition to the
selection by litigants of an inappropriate forum to secure a juridical
advantage at the expense of other litigants: |124|
This does not mean, however, that "forum shopping" is now to be encouraged. The
choice of the appropriate forum is still to be made on the basis of factors designed
to ensure, if possible, that the action is tried in the jurisdiction that has the closest
connection with the action and the parties and not to secure a juridical advantage to
one of the litigants at the expense of others in a jurisdiction that is otherwise
inappropriate. I recognize that there will be cases in which the best that can be
achieved is to select an appropriate forum. Often there is no one forum that is
clearly more appropriate than others….
If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by
reason of a real and substantial connection of the case to the jurisdiction, that is
ordinarily condemned as "forum shopping".
[Emphasis
added.]
[328] Inappropriate "forum shopping" should thus be discouraged.
[329] In the United States of America, legislation expressly grants
jurisdiction to American courts over civil claims brought by aliens and
based on torts committed abroad. |125| No such legislation exists in
Canada. |126| The Plaintiffs did not submit any precedent of a Canadian
court acknowledging that a person may be found civilly liable in Canada
for having participated abroad in a war crime as defined by international
instruments, neither is the Court aware of any such precedent.
[330] The existence of some substantive difference between the
domestic law of Israel and the domestic law of Québec does not mean, in
and of itself, that the HCJ would not be "in a better position" to decide the
Action than the Superior Court. In Kuwait Airlines Corporation v. Iraqi
Airways, |127| Lord Nicholls of Birkenhead, with whose views three of his four
colleagues concurred, explicitly recognized that proceedings having
connections with a foreign country may be more appropriately decided by
reference to the laws of such country despite differences with the laws of
England:
[15] Conflict of laws jurisprudence is concerned essentially with the just disposal
of proceedings having a foreign element. The jurisprudence is founded on the
recognition that in proceedings having connections with more than one country
an issue brought before a court in one country may be more appropriately
decided by reference to the laws of another country even though those laws are
different from the law of the forum court. The laws of the other country may have
adopted solutions, or even basic principles, rejected by the law of the forum
country. These differences do not in themselves furnish reason why the forum
court should decline to apply the foreign law. On the contrary, the existence of
differences is the very reason why it may be appropriate for the forum court to
have recourse to foreign law. If the law of all countries were uniform there would
be no "conflict" of laws.
[331] In Birdsall Inc. v. Any Event Inc., |128| LeBel J.A., as he then was,
discussed the issue of forum non conveniens in the context of an action in
warranty and cited authors G. Goldstein and E. Groffier regarding the
relevant connecting factors:
[TRANSLATION] What exceptional circumstances must be considered? The
criteria considered in the other provinces are the availability of evidence, the
expense for the parties to call witnesses and other practical factors that enable
an easy, swift and inexpensive trial. Public interest considerations may also
come into play, such as the inconvenience of having rolls encumbered by trials
that are unconnected with the venue […]
An abusive or vexatious election of forum by the plaintiff will be
decisive….[References omitted.]
[Emphasis added.]
[332] Judicial resources are unfortunately limited in all venues. It would
not be in the interest of justice to restrict access to the Superior Court for
those matters truly having a real and substantial connection with Québec
in favour of the Action or of similar proceedings having only a superficial
connection with Québec where another court would clearly be in a better
position than the Superior Court to decide.
[333] The applicable law and the advantages conferred upon a plaintiff by
its choice of forum are but two of the factors relevant to the determination
of whether the foreign authority would be in a "better position" to decide.
Of course, being in a "better position" is not synonymous with the "most
advantageous forum to the plaintiff".
[334] Order and fairness therefore require that the Action be tried before
the HCJ. In the words of La Forest J. "…While, no doubt, as was
observed in Morguard, the underlying principles of private international law
are order and fairness, order comes first. Order is a precondition to
justice…". |129|
[335] To sum up, this is one of those exceptional situations where the
Superior Court is compelled to decline jurisdiction on the basis of forum
non conveniens, as the Plaintiffs have selected a forum having little
connection with the Action in order to inappropriately gain a juridical
advantage over the Defendants and where the relevant connecting
factors, considered as a whole, clearly point to the HCJ as the logical
forum and the authority in a better position to decide.
Costs
[336] The Defendants' Exception to Dismiss is granted only against the
Council, without costs, given that the Defendants are largely unsuccessful
on the motion.
[337] The Declinatory Exception is granted with costs. The Defendants
will be entitled collectively to one bill of costs only based on the total
amount in issue.
[338] In light of the novelty of the matter, it would not be appropriate to
make any further award.
FOR THESE REASONS, THE COURT:
MAINTAINS, in part, the Defendants' Exception to Dismiss Action
and, de Bene Esse, to Recognize Judgments and DISMISSES the Village
Council of Bil'in's Second Further Amended and Particularized Motion
Introducing a Suit dated June 12, 2009.
Without costs.
MAINTAINS the Defendants' Application to decline jurisdiction -
forum non conveniens and DISMISSES the Second Further Amended and
Particularized Motion Introducing a Suit dated June 12, 2009.
With costs.
LOUIS-PAUL CULLEN, J.S.C.
Mark H. Arnold
GARDINER MILLER ARNOLD LLP
Me Pierre-Yves Trudel
ARCHAMBAULT ADEL TRUDEL, s.n.d.
Counsel for the Plaintiffs
Me Ronald H. Levy
DE GRANDPRÉ CHAIT LLP
Counsel for the Defendants
Dates of hearing: June 22, 23 and 25, 2009
Notes:
1. The Question of Palestine and the United Nations, United Nations, New York, 2008
<http://unispal.un.org/pdfs/DPI2499.pdf>. [Back]
2. For an overview of the situation since 1917, see <http://www.un.org/Depts/dpa/qpal/history.html>. [Back]
3. On June 12, 2009, the Plaintiffs amended the Action by adding paragraph 39. This paragraph purports to
describe the lands in dispute through a television documentary (Exhibit P-18). The Court was shown
exhibit P-18 without sound. During submissions, the amendment was authorized. The issues before the
Court are unaffected. [Back]
4. For example, on the one hand, the Council states that it does not claim ownership of the disputed lands
(paras. 13 iii) and 33 i). On the other hand, it alleges that it has been denied peaceful enjoyment of its
property (para. 22 ii). The Plaintiffs allege that Defendant Laroche is the sole director and officer of the
Corporations, but nonetheless seek injunctive relief against the Corporations and their directors and
officers. [Back]
5. R.S.C. 1985, c. G-3. [Back]
6. S.C. 2000, c. 24. [Back]
7. R.S.Q. c. C-12. [Back]
8. At <http://www.nyulawglobal.org/globalex/Customary_International_Law.htm#_ednref4>, Silke Sahl
describes "customary international law" as follows:
Customary international law results from a general and consistent practice of states followed
by them from a sense of legal obligation." [Reference omitted.] "This definition was published
in §102 (2) of the Restatement of the Law, Third, Foreign Relations Law of the United States,
published by the American Law Institute in 1987. The Restatement's reporters' notes for this
section state that "No definition of customary law has received universal agreement, but the
essence of Subsection (2) has wide acceptance" and goes on to explain various difficulties
in defining custom." [Reference omitted.] When is state practice considered to be customary
international law? The Restatement calls for two-pronged approach to determining custom
requiring both a general and consistent practice and a sense of legal obligation (opinion juris
sive necessitates). J.L. Brierly describes it as follows: "Custom in its legal sense means
something more than mere habit or usage; it is a usage felt by those who follow it to be an
obligatory one. There must be present a feeling that, if the usage is departed from, some
form of sanction probably, or at any rate ought to, fall on the transgressor." (Brierly, J. L. The
Law of Nations: An Introduction to the International Law of Peace, 6th ed. Oxford; New York:
Oxford University Press, 1963. p. 59.) Obviously, terms such as "a feeling that", "will
probably" and "ought" are difficult to prove. As Mark Janis puts it in his book, An Introduction
to International Law, "The determination of customary international law is more an art than
a scientific method." (Janis, Mark W. An Introduction to International Law, 4th ed. New York,
Aspen Publishers, 2003, p. 44.) This is a complex and fascinating area of law that is
addressed by the many excellent books and articles on customary international law. [Back]
9. R.S.C. 1985, c. S-18. [Back]
10. Jaffe v. Miller et al., (1993) 13 O.R. (3d) 745 at paras. 27-34 (Ont. C.A.). [Back]
11. Action at paras. 9, 9 iii), 23 and 24. [Back]
12. Ibid. at para. 9. Whether conspiracy is possible between an agent and its principal is questionable: see
Janssen-Ortho Inc. v. Amgen Canada Inc., [2004] O.J. no. 2523 at paras. 32-34 (Ont. Sup. Ct.). [Back]
13. Action at para. 23. [Back]
14. Ibid. at paras. 9, 9 i) and 9 iii). [Back]
15. Ibid. at para. 9 v). [Back]
16. At para. 145 of this judgment. [Back]
17. Schedule 8 to the affidavit of Renato Jarach at 1. However, the judgement of the HCJ identifies the
petitioners as: "Ahmad Issa Abdallah Yassin and 21 others" (see Schedule 11 to the affidavit of Renato
Jarach at 1). [Back]
18. Schedule 11 to the affidavit of Renato Jarach at para. 3. [Back]
19. Ibid. at para. 4. [Back]
20. Ibid. [Back]
21. Schedule 8 to the affidavit of Renato Jarach at paras. 1, 6 and 41. [Back]
22. Schedule 7 to the affidavit of Renato Jarach at para. 16. [Back]
23. National Bank v. Soucisse et al., [1981] 2 S.C.R. 339. [Back]
24. Canada Post Corp. v. Lepine, [2009] S.C.J. no. 16, at paras. 22 and foll. (S.C.C.); H. Patrick Glenn, "Droit
international privé", La réforme du Code civil, T. 3 (Ste-Foy: Presses de l'Université Laval, 1993) at 769
para. 116. [Back]
25. Bern v. Bern, [1995] R.D.J. 510 at 516 (C.A.). [Back]
26. In HCJ no. 3998/06: "The Military Commander of the West Bank" and "The Commissioner of State Property
in the Judea and Samaria Region"; in HCJ no. 143/06: "The Minister of Defence", "The Commander of
IDF Forces in the West Bank" and "The Judea and Samaria Civil Administration's Supreme Planning
Committee"; in HCJ no. 1526/07: "The Head of the Judea and Samaria Civil Administration", "The Judea
and Samaria Civil Administration's " and "The Supreme Planning Committee's Subcommittee for
Objections". [Back]
27. Rocois Construction Inc. v. Québec Ready Mix Inc., [1990] 2 S.C.R. 440 at 448. [Back]
28. National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd., [1993] 2 Lloyd's Rep. 68. [Back]
29. Cresswell J. did not exclude any expert evidence for those reasons. [Back]
30. Supra note 28 at p. 81-82. [Back]
31. Jean-Claude ROYER, La preuve civile, 3rd ed. (Cowansville: Yvon Blais, 2003) at 300 para. 468. [Back]
32. Affidavit of Renato Jarach at para. 28. [Back]
33. Mr. Jarach also refers to several judgments of the HCJ, which the Defendants have not formally asked the
Court to recognize. These unrecognized judgments are not considered with respect to res judicata. [Back]
34. R. v. Mohan, [1994] 2 S.C.R. 9 at 25 para. g ; R. v. Béland, [1987] 2 S.C.R. 398 at 415. [Back]
35. Schedule 11 to Mr. Jarach's affidavit. [Back]
36. P-14. [Back]
37. Schedule 7 to Mr. Jarach's affidavit. [Back]
38. P-14. [Back]
39. Schedule 7 to Mr. Jarach's affidavit. [Back]
40. Jean-Claude Royer, La preuve civile, supra note 31 at 610. [Back]
41. Rocois Construction Inc. v. Québec Ready Mix Inc., supra note 27 at 451-452. [Back]
42. Ibid. at 453 and foll.; Jean-Claude Royer, La preuve civile, supra note 31 at 616 and foll. [Back]
43. Rocois Construction Inc. v. Québec Ready Mix Inc. supra note 27 at 458. [Back]
44. For similar reasons, this is also true of HCJ no. 8414/05, where the Council petitioned against a section of
a fence constructed in Bil'in, following seizure orders issued in 2004. HCJ no. 8414/05 sets out the
history of the numerous proceedings opposing the process through which the Lands were declared state
property. [Back]
45. Jeunes Canadiens pour une civilisation chrétienne v. Fondation du théâtre du Nouveau-Monde, [1979] C.A.
491 at 493. In the context of the Geneva Conventions see: Turp v. Chrétien, J.E. 2003-1037 (S.C.). [Back]
46. Société d'habitation du Québec v. Leduc, 2008 QCCA 2065 at para. 15. [Back]
47. Ibid. at para. 16. [Back]
48. For an objection to a declaration of state property to succeed, the opponent must apparently establish his
or her right of ownership of the land at issue: see para. 98 of the petition in HCJ no. 3998/06. [Back]
49. Action at paras. 13 iii), 33 i) and 39. [Back]
50. Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236. [Back]
51. Ibid. at 252. [Back]
52. Claude Emanuelli, International Humanitarian Law, (Montreal: Yvon Blais, 2009) at 63. [Back]
53. Action at para. 15. [Back]
54. Ibid. [Back]
55. Malcolm N. Shaw, International Law, 5th ed. (Cambridge: Cambridge University Press, 2003) at 151. [Back]
56. Legislative history of Bill C-19. [Back]
57. Art. 1621, para. 1 C.C.Q., Béliveau St-Jacques v. Fédération des employées et employés de services
publics inc., [1996] 2 S.C.R. 345 at paras. 20 and 126; Quantz v. A.D.T. Canada inc., [2002] R.J.Q. 2972
at para. 37 (C.A.); Melocheville (Municipalité de) v. Fournier, J.E. 99-2023 (C.A.). [Back]
58. Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., supra note 57 at
404-406. [Back]
59. St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64. [Back]
60. Compagnie d'assurances Continental du Canada v. 136500 Canada inc., [1998] R.R.A. 707 (C.A.). [Back]
61. Trudel v. Clairol Inc. of Canada, [1975] 2 S.C.R. 236. [Back]
62. Here, the alleged "injurious act" is the construction and sale of condominium units. [Back]
63. Tolofson v. Jensen, [1994] 3 S.C.R. 1022. [Back]
64. McLean v. Pettigrew, [1945] S.C.R. 62; Chaplin v. Boys, [1969] 2 All E.R. 1085 (H.L.). [Back]
65. Tolofson v. Jensen supra note 63 at 1049-1050. [Back]
66. Ibid. at 1050-1051. [Back]
67. Malcolm N. Shaw, International Law, supra note 55 at 151. [Back]
68. The Defendants have not filed a defence. [Back]
69. Action at para. 27. [Back]
70. Dial Textile Ltée v. Ste-Foy (Ville de), [1982] C.A. 220 at 225. [Back]
71. Constructions Serafini inc. v. Gold Coin Development Corp., J.E. 2000-2173 (C.A.); Raymonde Crête &
Stéphane Rousseau, Droit des sociétés par actions, 2nd ed. (Montreal: Les Éditions Thémis, 2008) at
para. 989. [Back]
72. Houle v. Canadian National Bank, [1990] 3 S.C.R. 122, 182-183. [Back]
73. Boucher v. Pitre, J.E. 2001-950 at para. 5 (C.A.); Raymonde Crête & Stéphane Rousseau, Droit des
sociétés par actions, supra note 71 at para. 986. [Back]
74. Art. 2849 C.C.Q. [Back]
75. Paul Martel, « Le « voile corporatif » - l'attitude des tribunaux face à l'article 317 du Code civil du Québec », (1998) 58 R. du B. 95, quoted in Lanoue v. Brasserie Labatt Ltée, J.E. 99-857 (C.A.). [Back]
76. Entreprises Pro-Sag inc. v. Groupe Oslo Construction inc., J.E. 2006-115 (C.A.). [Back]
77. Spar Aerospace Ltd. v. American Mobile Satellite Corp., [2002] 4 S.C.R. 205 at 238-244. [Back]
78. Bourdon v. Stelco Inc., [2005] 3 S.C.R. 279 at para. 37. [Back]
79. Spar Aerospace Ltd. v. American Mobile Satellite Corp., supra note 77 at para. 71. [Back]
80. Ibid. at para. 32. [Back]
81. Syndicat des cols bleus regroupés de Montréal (SCFP, section locale 301) v. Coli, [2009] R.J.Q. 961 at
para. 108 (C.A.). [Back]
82. Action at para. 33 ii). [Back]
83. Impulsora Turistica de Occidente, S.A. de C.V. v. Transat Tours Canada Inc., [2007] 1 S.C.R. 867. [Back]
84. Ian Brownlie, Principles of Public International Law, 7th ed. (Oxford: Oxford University Press, 2008) at 554. [Back]
85. Khelou v. Government of Israel (1973) 27 (2) PD 169 (where, according to Professor Ben-Naftali, the HCJ
"did not examine the question of whether a settlement of civilians from the occupying power may lawfully
be established in an occupied territory"); Ayub v. Minister of Defense (1978) 33 (2) PD 113; Dweikat v.
Government of Israel (1979) 34 (1) PD 1; Bargil v. Government of Israel (1991) 47 (4) PD 210; Iyad v.
Commander of IDF Forces, (1998) Law 55 (1) PD 913; HCJ 7957/04 Maraabe et al. v. Israeli Prime
Minister et al. (2005) Takdin-Alyon (3) 3333 and HCJ 10024/04 "Nirit" Village Community Settlement v.
Minister of Defense, (2005) Takdin-Alyon (1) 2122. Professor Ben-Naftali also cites HCJ nos. 8414/05,
143/06 and 3998/06 but she does not discuss those cases. [Back]
86. P-17 at 11. [Back]
87. Ibid. at 6. [Back]
88. 95 S. Ct. 2197 (1975). [Back]
89. P-17 at 6. [Back]
90. 418 U.S. 208 (1974). [Back]
91. P-17 at 6. [Back]
92. Tel-Aviv, Papyrus, 1987 (in Hebrew). [Back]
93. P-17 at 7-8. [Back]
94. Ibid. at 9. [Back]
95. Ibid. at 11. [Back]
96. Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. [Back]
97. Schedule 14 to Mr. Jarach's affidavit, "The Hilou Trial", at 6. [Back]
98. These cases have not been filed. [Back]
99. Schedule 14 to Mr. Jarach's affidavit, "The Situation According to International Law", at 7-8. [Back]
100. In Witkon J.'s own words: "absorbed into municipal internal law". [Back]
101. Ahani v. R. 208 D.L.R. (4th) 66 at para. 34 (Ont. C.A.); Malcolm M. Shaw, International Law, supra note 55
at 151-152. [Back]
102. Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals: The Law of
Armed Conflict (London: Stevens & Sons, 1968), 2 at 164. [Back]
103. Schedule 13 to Mr. Jarach's affidavit at 21. [Back]
104. Ibid. at 45. [Back]
105. Schedule 4 to Mr. Jarach's affidavit at para. 14. [Back]
106. Ibid. at para. 27. [Back]
107. Canadian Magen David Adom for Israel v. Canada, [2002] F.C.J. No. 1269 (F.C.A.). [Back]
108. The Rome Statute was never mentioned. [Back]
109. H. Patrick Glenn, "Droit international privé", La réforme du Code civil, supra note 24 at 682; by analogy see:
Mutual Trust Co. v. St-Cyr, [1996] R.D.J. 623 (C.A.). [Back]
110. Lean and Balster v. Estonian Cargo & Passenger Steamship Line, [1949] S.C.R. 6. [Back]
111. Vladi v. Vladi, [1987] N.S.J. no. 204 (S.C.). [Back]
112. Kuwait Airlines Corporation v. Iraqi Airways, [2002] All. E. R. 209 (H.L.). [Back]
113. Ibid. at paras. 21 and 29. [Back]
114. At paras. 316 and foll. [Back]
115. Amchem Products Incorporated v. British Columbia (Workers' Compensation Board), [1993] 1 S.C.R. 897. [Back]
116. Garantie (La), compagnie d'assurances de l'Amérique du Nord v. Gordon Capital Corp., [1995] R.D.J. 537
(C.A.). [Back]
117. Article 2190 C.C.L.C. [Back]
118. Kaycan Ltd. v. Pella Corporation, [2003] J.Q. no. 12757 at para. 26 (S.C.). [Back]
119. On this basis, a trial court may refuse to issue the injunctive orders that the Plaintiffs are seeking: Bellavance v. Blais, [1976] R.P. 423 (C.A.). [Back]
120. Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675 (Ont. C.A.), leave to appeal refused. [Back]
121. John H. Currie, Public International Law, 2nd ed. (Ottawa: University of Ottawa, 2008) at 376 and foll. [Back]
122. According to Professor Ben-Naftali "The Israeli Supreme Court, sitting as the High Court of Justice, has
legal jurisdiction in Israel over matters brought against the State, its military, and their agencies."
[Reference omitted.] Mr. Jarach states that the Supreme Court of the State of Israel sitting as the HCJ
hears "matters in which it deems it is necessary to grant relief for the sake of justice and which are not
within the jurisdiction of another Court". [Back]
123. Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369. [Back]
124. Amchem Products Incorporated v. British Columbia (Workers' Compensation Board), supra note 115 at
912. [Back]
125. Alien Torts Claims Act (1789), codified (28 USC § 1350); see also: Torture Victims Protection Act 106 Stat.
73 (1992). [Back]
126. Bill S-233, submitted for first reading on April 28, 2009, would create a civil remedy in Canada against a
person who engaged in terrorist-related conduct. As of the date of this judgment, Bill S-233 has not been
passed into law. [Back]
127. Kuwait Airlines Corporation v. Iraqi Airways, supra note 112 at paras. 15-16. [Back]
128. Birdsall Inc. v. Any Event Inc., [1999] R.J.Q. 1344 at 1354 (C.A.) [Back]
129. Tolofson v. Jensen, supra note 63 at 1058. [Back]
[Source: CanLII, Federation of Law Societies of Canada, Ottawa, Canada]
