Master

Factum

In the interest of fairness to all the parties, and to ensure this court has a full command of the facts which the plaintiffs seek to have put into evidence, the Court is asked by the Respondent for the plaintiffs to waive its rule on limiting the size of a pleading and to accept this Factum in its entirety. International Law State Immunity Article 4 Question Of Service Practice - Pleadings - Strike Applications [1]

Pleadings - Grounds - Strike Applicatiosn The plaintiffs sued the government of the Republic of Bulgaria and others in two separate actions - Defendant seeks an order setting aside plaintiffs claims arguing that it is a foreign state under the State Immunity Act, and therefore immune to the jurisdiction of Canadian courts - However, the only defence the Defendant raised was that it was immune by virtue of the State Immunity Act -plaintiffs , inter alia, seek to strike the applications as disclosing no defence - and the state immunity issue to be set aside for the reasons that follow..

Dismiss Application of Defendants. [2]

Accordingly, the application will be dismissed. An extension of time to allow for service, in accordance with s. 9(2) will be granted. While some argument might be made that counsel for the Commission's appearance on the motion constituted a voluntary attornment to the jurisdiction, I understand that appearance to be conditional only - for the purpose of arguing the state immunity and service issues. Accordingly, I do not treat it as a voluntary attornment.

Motion Time Inadequate Rule 65 In determining the time and issues of the present hearing the Respondent finds as appropriate to the Rule 65 applications of the Defendant the words of His Lordship Mr. Justice Lambert on Rule 18A, in the case of North Vancouver (District) v. Fawcett et al. (1998), 110 B.C.A.C. 137; 178 W.A.C. 137; 162 D.L.R.(4th) 402 (C.A.), at pp. 413-414 [D.L.R.]: "With respect, it seems to me that if the answer to an issue sought to be tried under rule 18A will only resolve the whole proceeding if one answer is given, but not if a different answer is given, then the applicant should be required to demonstrate, and the judge should be expected to decide, that the administration of justice, as it affects not just the parties to the motion, but also the orderly use of court time, will be enhanced by dealing with the issue as a separate issue. It cannot be enough simply that the parties have agreed to a summary trial of one or more issues, but not all of the issues, raised in the proceeding, without any consideration for the effective use of court time, or the efficient resolution of the proceeding." Tort - Practice - Pleadings - Statement of defence - Meaning of defamatory words - The Alberta Court of Queen's Bench stated that a "defendant could plead an alternative, lesser defamatory meaning to an allegedly defamatory statement and then attempt to justify that lesser defamatory meaning" - However, "the alternative meaning pled must also be defamatory. If it is not defamatory, then the pleadings should simply be that the plaintiff was not defamed. To rely on a plea of justification, the meaning attributed to the words used by the defendant must carry with them a separate and distinct sting from that relied on by the plaintiff. ... a defendant is not permitted to so massage and distort the statements complained of that the allegedly defamatory statements take on a meaning that is not at all defamatory. ... If the defendant insists on attempting to justify nondefamatory statements, then the remedy for the plaintiff is to bring an application to have the defence of justification to a non-defamatory meaning struck out." - It is inferred by the applications that the Defendant seeks to justify the defamation.

Analysis and Argumen - International Waiving of Immunity [3]

Before Evans, J., in KAC (Kuwait) supra.., IAC challenged the jurisdiction of the English Court on four grounds. (1) The service of the proceedings on IAC at its office in London was not effective, either under Ord. 65, r. 3, or under s. 695 of the Companies Act 1985 . (2) IAC, as a "separate entity," was entitled to immunity from suit in this country, under s. 14(2) of the State Immunity Act 1978 , because the proceedings related to things done by it in the exercise of sovereign authority and (contrary to the contention of KAC) IAC was not precluded from invoking state immunity by reason of having submitted to the jurisdiction. (3) The proceedings related to acts which were not justiciable in the English courts, on the principles stated by your Lordships' House in Buttes Gas and Oil Co. v. Hammer (No. 3); Occidental Petroleum Corp. v. Buttes Gas and Oil Co. (No. 2) , [1982] A.C. 888 (H.L.). (4) The Compensation Commission established pursuant to U.N. Security Council Resolution 687 provided the only appropriate forum for the resolution of the dispute. Evans, J., decided all these issues (except that relating to submission to the jurisdiction) in favour of KAC. The Court of Appeal however decided that IAC was entitled to immunity under s. 14(2) of the Act of 1978 and (in agreement with Evans, J.), that it had not submitted to the jurisdiction, and on that basis did not find it necessary to consider the other points upon which IAC relied. They upheld the judge's decision that the purported service of proceedings on Iraq was ineffective. Against the decision of the Court of Appeal KAC now appeals to your Lordships' House.

[4]

[8] I shall consider the issues which have arisen for decision by your Lordships' House in the following order:

[5]

A. Whether the writ was effectively served on IAC.

[6]

B. Whether the writ was effectively served on Iraq.

[7]

C. Whether IAC, as a separate entity, was entitled to immunity under s. 14(2) of the State Immunity Act 1978 .

[8]

D. Whether the proceedings relate to issues which are not justiciable in the English courts.

International Law - Submission - Waiving Immunity.1 [9]

Sovereignty - Incidents of - Immunity - Exceptions - Submission to jurisdiction - Canada arrested Schreiber so that he might be extradited to Germany in relation to tax evasion and other charges Schreiber sued Germany, asserting that it owed him a duty of care to ensure that the extradition proceedings were authorized by treaty and were conducted in accordance with the Extradition Act and the Charter - Germany sought to dismiss the action, asserting state immunity - Schreiber asserted that immunity was not available because Germany had submitted to the jurisdiction by participating in the extradition proceedings - The trial judge dismissed the action - Germany had state immunity - It had not submitted to the court's jurisdiction under s. 4 of the State Immunity Act - The extradition proceedings were separate from Schreiber's action - The Ontario Court of Appeal agreed - See paragraphs 22 to 26.

International Law - Waiving Immunity [10]

Sovereignty - Incidents of - Immunity - When determined - Germany obtained an order dismissing an action against it based on state immunity - On appeal, the plaintiff asserted that the motions judge erred by determining immunity on the merits - The judge should only have decided whether it was "plain and obvious" that Germany was entitled to claim immunity - The Ontario Court of Appeal rejected the submission - The "plain and obvious" approach could not be applied to motions to dismiss founded on immunity - The court would not withhold its decision until the end of trial - The State Immunity Act contemplated that immunity had to be decided before the action proceeded - Under s. 4(2)(c), a state submitted to the jurisdiction where it took a step in the proceedings, with the exception of claiming immunity - If the matter proceeded to trial, the foreign state would be in the untenable position of either not participating or participating and thereby losing its immunity - See paragraphs 14 to

International Conflict of Laws - Torts Jurisdiction - Waiver Immunity - Serice [11]

Practice - Topic 2502

[12]

Service - Personal service of writ, claim or notice - In Kuwait Airways Corp. (supra), the plaintiff submitted that, at the time of service, the employee fell within the meaning of "or other similar officer" per R.S.C., Ord. 65, r. 3(1) (England) - The House of Lords held that the Defendant, Iraq, was properly served

Statue Supercedes Rule

Postponement or suspension of statute - General - Discoverability rule -. Cases Noticed: Burnyeat, J. : The plaintiff seeks to amend his statement of claim to allege that the defendant slandered him on August 24, 1996, by calling him a "murderer". The statement of claim presently alleges that the defendant slandered the plaintiff on February 22, 1995, when, at a Nuxalk Nation Band meeting, the defendant made statements suggesting that the plaintiff should have been charged with "aggravated assault causing death" or with "second degree murder" arising out of an incident during which the father of both the plaintiff and the defendant died. A motion to amend the pleadings to allege this 1996 slander was originally before the court on December 15, 1998, when the defendant applied pursuant to rule 19(24), rule 18A, as well as pursuant to the Limitation Act , S.B.C. 1996, c. 266, for an order dismissing the claim of the plaintiff as set out in the statement of claim as filed. Conflicts of Law - Statutory Duty - Choice of Law - Misrepresentation [13]

The Defendant, even though a foreign state must however be responsible to the laws of jurisdictions in which its representatives, employees, officers, officials, agencies or instrumentalities jointly and severally operate. A "wrong" in this jurisdiction includes a breach of "statutory duty". There are statutory duties imposed under British Columbia statutes like the Trade Practice Act, R.S.B.C. 1996, c.457. These can lead to foreign corporations or non-incorporated bodies, with no presence in British Columbia, conducting their affairs in conformity with their domestic law, being judged under Section 13.1(1)(a) of the Trade Practice Act according to standards of conduct under British Columbia statutes for acts or omissions that occur in their own country.

International Law - Immnity - Service [14]

The Federal, Court of appeal found in v. Panama Canal (supra.), that the argument, that service was not proper, as correct. The court concluded that in the first place, s. 9(3)(c) must refer to the rules of the domestic jurisdiction within which the proceeding is commenced. Any other interpretation invites the difficulties which the defendants met in this case: not being able to comply with the foreign rules of court because those rules are designed to govern litigation commenced therein. Secondly, although the Commission referred to itself as "an agency in the executive branch of the United States government", it is the definition of agency in the State Immunity Act , R.S.C. 1985, c. S-28, that governs, not the Commission's self- description. Section 2 of that Act states: "'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;"

[15]

Most of the jurisprudence which was cited involves attempts, prior to the enactment of the State Immunity Act , to determine whether an entity was separate from a foreign state for the purpose of making it answerable to suit in the particular court in question. In this context, in Ferranti-Packard Ltd. v. Cushman Rentals Ltd. (1980), 30 O.R.(2d) 194, the Ontario High Court referred to the reasoning of Lord Denning in Trendtex Trading Corp. v. Central Bank of Nigeria , [1977] 1 Q.B. 529, at p. 559 (C.A.):

"I confess that I can think of no satisfactory test except that of looking to the functions and control of the organization. I do not think that it should depend on the foreign law alone. I would look to all the evidence to see whether the organization was under government control and exercised governmental functions." [16]

The court, then, went on to examine the constitutive legislation for the New York Thruway Authority. It was that organization whose status was under consideration. Factors which were assessed as relevant to the issue of separateness were: the amount of state control over the organization; whether it could sue or be sued in its own name; whether it was a separate legal (corporate) entity. This same approach was followed in Ogdensburg Bridge and Port Authority v. Edwardsburg (Township) (1966), 59 D.L.R.(2d) 537 (Ont. C.A.).

[17]

In the present case, the defendants rely on a number of features of the Panama Canal Treaty Between the United States of America and the Republic of Panama, 1977 and on the Panama Canal Act , 22 USCS § 3601 - 3872, in support of their contention that the Commission is an organ of the foreign state "that is separate from the foreign state".

Doctrine State Immunity

Argument - State Immunity - Section 3 Defamation Contracts Issue 2 Have The Respondents Lost Immunity Because The Alleged Acts Involved Some Illegality? On this issue, the appellants put forward somewhat contradictory positions. It is submitted on their behalf that notwithstanding the allegation that the responding defendants who are natural persons were acting within the terms of their employment so as to make their employer vicariously liable for their tortious conduct, the tortious acts themselves were of such an egregious nature that the employees were not entitled to shelter under the immunity of the State of Florida. Put another way, the acts of the particular responding defendants were not of a character contemplated by what Rand, J., supra, referred to as "the invitation of the host state to the foreign state"; in this case the terms of immunity provided by the State Immunity Act . In my view, the use of adjectives to describe the conduct of the responding defendants cannot deprive them of their status as functionaries of the foreign sovereign. The illegal and malicious nature of the acts alleged do not of themselves move the actions outside the scope of the official duties of the responding defendants. Further, as Sutherland, J., noted, the appellants' statement of claim contains no express allegation that any of the respondents were acting outside of their official capacities. [37] The task of this court is to determine if the appellants' case as pleaded falls within the exceptions to immunity afforded under the State Immunity Act , if the Act applies, and within the recognized exceptions to the common law, if the conduct alleged pre-dates the Act . I cannot give effect to the appellants' argument that the conduct as pleaded of the personal responding defendants was of such a nature as to deprive them of the protection afforded to functionaries of the State of Florida. These were functionaries of a foreign state and whether acting legally or illegally they attract immunity in the same way as the state itself. [38] This same point arose in Carrato v. United States of America (1982), 40 O.R.(2d) 459 (H.C.). In that case, a receiver had been appointed by the Federal Court of the United States to recover income taxes owing by the plaintiff's husband. The court order instructed the receiver to seize the assets of the husband whether located in the United States or elsewhere. Acting under this authority, the receiver came to Canada and seized business assets owned jointly by the husband and wife. The plaintiff sued for damages for unlawful trespass, entry and seizure of goods located in Canada and for other relief. [18]

The Respondent puts forth the proposition that, s. 3 is not satisfied because, there is a the contract between the Plaintiffs and the "alter-egos" of the Bulgarian Government and it is a contract for the supply of services and goods to the province and elsewhere as connected through the province by other contracts made with third parties in this province. The Respondent asks the Court to recall the contracts with Founders Group and LifeChoice Inc., as signed in Vancouver [see: Kapoustin Affidavit ]. This is therefore an action on not one but several commercial contracts for commercial activities within the meaning of the section by virtue of s. 5, the present proceedings relate to those contracts and the activities of the Defendant that they represent. The personal injury claims begin

with the defamation of the Plaintiffs by defendant Doornbos having communicated slanders on or about May 15th 1995 to the Defendant Bulgaria. The libel action begins with the July 7th 1995 Letter of Request delivered to agencies of the Bulgarian Government the R.C.M.P.. This are each separate actions about the words, some repeated countless time in countless contacts, the letters are not about the contract the separate actions about contract breaches, but about defamation of the Plaintiffs.. The fact that the defamation relates to the personality, character and religious beliefs of the Plaintiffs, Doornbos going in the R.C.M.P. Letter of Request to complain that the commercial activities in British Columbia connected to Bulgaria are really criminal in nature and not commercial. It can therefore be reasonably asserted by the plaintiffs that the defamation of the LifeChoice companies relates to commercial activities in the Province connected to Bulgaria and vise versa, which is why s. 5 and s. 6 are both satisfied by the available evidential materials. It follows that the proceedings relating to the contracts, which is what s. 5 requires are, in the Respondents opinion the since the words "proceedings relating to" a transaction refer to claims arising out of the transaction, usually contractual claims, and are not the same as any tortious claims arising independently of the transaction but in the course of its performance or independently arising from the defamation. [19]

For the same reason the Respondent doubts that the government of Bulgaria can make a defence of state immunity for its public distribution and arranging the publication of the slander and the contents of Letter of Request as it did on the numerous occasions given in evidence, the most identifiable of which is the August 1st 1996 "Continent" newspaper interview with an official of the Defendant. This interview and the public distribution of unverified slander or libel cannot be constituted as an "activity" of an official character in which the Republic of Bulgaria United States engaged in through the medium of the mass media, so as to bring the proceedings framed around the defamation within the meaning of s. 3. The context of the defendants defamation, in particular the fraudulent misrepresentations and deceit when making references to, inter alia, the quality of the medical substance "Factor-R" and the connections to the British Columbia of the activities in Bulgaria, strongly suggests in the reading the connection of the commercial activities and contracts with British Columbia and the Defendant Bulgaria. Defamation is a unilateral tortious act and the defendants acts of speaking, writing and publishing the slanders or libels cannot be brought within the words s. 3, they are excluded by the opening words of subsection (1) since, for the reasons the Respondent has given, the activities and actions of the Defendant were not performed in the exercise of sovereign authority but appear in the private acts born of a desire to make a profit from or with the Plaintiffs and later a malice towards the Plaintiffs that flows clearly from the spoken and written words of the defendants as supported by the tortfeasors acts..

State Immunity Use In Argument [20]

The "official act" is not challanged, its is the damages resulting from the act, the personal injury and property losses, by the "official act" for which the plaintiffs seek relief. and the exception of s. 6, and its connection to s. 5.

International Law - Sovereignty [21]

Sovereignty - Incidents of - Immunity - Exceptions - Proceedings relating to commercial activity of foreign state ( acta gestionis) - At first a group of Canadian residents and later Bulgarian and United States residents began investing in commercial activities with academic institution and governments departments of the Republic of Bulgaria on distribution in Canada and elsewhere of pharmaceutical and research products - the investors based in British Columbia, brought a law suit in the province and incorporated under the Class Actions Act other investors resident outside the province- Bulgaria claims state immunity under s. 3 of the State Immunity Act (Can.) - The Plaintiffs hold that Bulgaria is not immune from the claims framed in tort that consequenced economic losses and unlawful interference with the commercial activities and contracts under s. 6 of the State Immunity Act (Can) subject to jurisdiction of the Canadian courts - The Plaintiffs hold that their collective claims as a class proceeding relate to a "commercial activity" by Bulgaria

States and further therefore pursuant to s. 5 of the State Immunity Act, Bulgaria could not claim the immunity given by s. 3 of the Act. International Law - State Immunity History [22]

Sovereignty - Incidents of - Immunity - Waiver - In 2000 Bulgaria signed the Hague Convention on the Service of Extra Judicial and Judicial Documents agreement- The Plaintiffs hold that when Bulgaria consciously observed Rule 11, Rules of the Court and subordinated the conflicting procedures of this agreement and its national law to the Rules, Bulgaria made an explicit submission to the jurisdiction of the Canadian courts, such as to constitute a waiver of state immunity within the meaning of s. 4(2)(a) of the State Immunity Act .

International Law Doctrine State Immunity Act [23]

The State Immunity Act was proclaimed, and by its terms, came into force on July 15, 1982. It is intended as the domestic implementation of international legal principles that have evolved on a state by state basis rather than being created or codified by multilateral treaty. Generally, the effect of sovereign immunity is that the host country recognizes the independence of every other sovereign state and declines to exercise by means of its courts any of its territorial jurisdiction over that sovereign or its property, which but for this doctrine, would be subject to its jurisdiction: see Ship Parlement Belge (1880), 5 P.D. 197 (C.A.), at p. 217.

[24]

Sovereign immunity at common law was not absolute, however. It was modified over time and admitted of four exceptions. A foreigner has no immunity in respect of (1) land situate in the host state, (2) trust funds or moneys lodged for the payment of creditors, (3) debts incurred for service of its property in the host state and (4) commercial transactions entered into with a trader in the host state: see Thai-Europe Tapioca Service Ltd. v. Government of Pakistan et al. , [1975] 3 All E.R. 961 at pp. 965-966 (C.A.).

[25]

However, the notion that sovereign immunity is not absolute is of recent origin. Latterly there has been a shift to what is referred to as the "restrictive principle of sovereign immunity". A brief review of the nature of the two approaches to sovereign immunity - restrictive and absolute - is helpful in understanding the impact and effect of the State Immunity Act .

[26]

The doctrine of absolute immunity is neatly summarized in the words of Lord Atkin in Ship Cristina , [1938] A.C. 485 at p. 490 (H.L.), quoted by H.L. Molot and M.L. Jewett in Canadian Yearbook of International Law (1982), p. 79: "The first [proposition of international law engrafted into our domestic law] is that the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages. "The second is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control."

[27]

In approaching questions of immunity, English common law "drew by analogy from the position of the Crown itself - i.e., that the Crown itself is immune from suit and by analogy that foreign sovereigns should also be": see Jewett, Integrating International Law into Canadian Domestic Law: Sovereign Immunities (1981), 10 Canadian Council on International Law Proceedings 202.

[28]

Professor Ian Brownlie writes in Principles of Public International Law (4th Ed.) (Oxford: Clarendon Press, 1990), at pp. 322-336 that restrictive immunity emerged from doctrinal and judicial responses to the extension of state activity into commercial enterprises and public sector intervention in national economies. He notes at pp. 327-328 that Belgian and Italian courts responded to these developments by crafting a distinction between "acts of government, jure imperii , and acts of a commercial nature, jure gestionis , denying immunity from jurisdiction in the latter case. This approach, often called the doctrine of restrictive

or relative immunity, has been adopted by the courts of at least 20 countries. Another 11 states support the restrictive approach in principle." [29]

The State Immunity Act thus continues the fundamental extension of immunity to a foreign sovereign at the same time as acknowledging that such immunity, in particular contexts, is to be recognized in a restricted rather than an absolute fashion. Judicial review of the assertion of immunity has the advantage, particularly in a commercial context, of depoliticizing the assessment of the legal validity of the immunity claimed. Such considerations are reflected in the Act itself. The immunity is declared in s. 3 and ss. 5, 6 and 18 set out exceptions to that immunity as they may have application to this case. For convenience, they are provided here: "3(1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada. "(2) In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subs. (1) notwithstanding that the state has failed to take any step in the proceedings.

[30]

.....

[31]

"5. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.

[32]

"6. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to

[33]

(a) any death or personal injury, or

[34]

(b) any damage or loss of property that occurs in Canada.

[35]

.....

[36]

"18. This act does not apply to criminal proceedings or proceedings in the nature of criminal proceedings."

[37]

It is significant for the purposes of this proceeding, that s. 6(a) introduces death and personal injury as an exception to statutory immunity. Such an exception was not recognized at common law.

[38]

Issue 1 Are The Respondents Entitled To Immunity?

[39]

The Plaintiffs concede that the Minsitry of Finanace and Ministry of Health and their institutions or agencies are political subdivisions of the foreign state within the meaning of s. 2(c) of the Act and are prima facie entitled to immunity.

[40]

Sutherland, J., noted that Sucharitkul, in his article Immunities of Foreign States before National Authorities (1976), 149 Recueil des Courts, Academie de Droit International 89, Chapters 1 and 11 at p. 100, set out the principle that:

[41]

"... a state acts through its organs or agencies, which normally include the persons, representatives, subordinate organs, instrumentalities, corporations and government departments, which constitutionally form organic parts of the machinery of the central government of a sovereign state. Such agencies being part and parcel of the state are generally accorded the same immunity as the state they represent."

[42]

This principle was also adopted by Molot and Jewett in their analysis of the State Immunity Act in State Immunity Act - Basic Principles (1983), 61 Canadian Bar Review 843. The authors state at pp. 848-849:

[43]

"To the extent that any such instrumentality is an integral part of the state and its machinery of government, it may be said that the acts of the instrumentality are those of the state."

[44]

To avoid having its action dismissed on the ground of state immunity, a plaintiff would have only to sue the functionaries who performed the acts. In the event that the plaintiff recovered judgment,

the foreign state would have to respond to it by indemnifying its functionaries, thus, through this indirect route, losing the immunity conferred on it by the Act. [45]

The Random House Dictionary (2nd Ed. 1987) defines "functionary" as "a person who functions in a specified capacity, esp. in government service, an official, civil servants, bureaucrats and other functionaries ".

[46]

The position at common law and under the State Immunity Act is the same on this issue. Whether the tortious acts alleged in the statement of claim, the acts that the responding parties performed were within the scope of their duties as functionaries and they are entitled to state immunity if immunity is available to. The fact that the Act is silent on its application to employees of the foreign state can only mean that Parliament is content to have the determination of which employees are entitled to immunity determined at common law. It will be a matter of fact for the court to decide in each case whether any given person performing a particular function is a functionary of the foreign state.

International Law - Topic 2206 [47]

Sovereignty - Incidents of - Immunity - Foreign agencies - The State Immunity Act provided that, "except in certain circumstances, a foreign state is immune from the jurisdiction of Canadian courts. Foreign state includes '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'" .

Immunity At Common Law [48]

[39] It follows that the respondent's claim to immunity falls to be dealt with under the common law. Accordingly the question is whether, in accordance with the law laid down in I Congreso , the act complained of was "iure imperii" or "iure gestionis". This must be judged against the background of the whole context in which the claim is made. The question is not an altogether easy one, but I have come to the conclusion that the Court of Appeal were correct to designate the act complained of as being "iure imperii".

International Law - State Immunity - Commona Law Antecedents [49]

Sovereignty - Incidents of - Immunity - General - The Supreme Court of Canada discussed the common law antecedents of the State Immunity Act (Can.) - The court also compared Canada's codification of the common law with the statutory model in the United States -

[50]

In Carrato v. United States of America (1982), 40 O.R.(2d) 459 (H.C.)., a receiver had been appointed by the Federal Court of the United States to recover income taxes owing by the plaintiff's husband. The court order instructed the receiver to seize the assets of the husband whether located in the United States or elsewhere. Acting under this authority, the receiver came to Canada and seized business assets owned jointly by the husband and wife. The plaintiff sued for damages for unlawful trespass, entry and seizure of goods located in Canada and for other relief.

[51]

A motion was brought before Steele, J., to dismiss the action on the ground that the defendant, the United States of America, was immune from action. It was contended that the defendant was not entitled to claim indemnity because the acts of the receiver were illegal. Steele, J., disposed of this ground in the following passage at p. 461:

[52]

"In Amanat Khan et al. v. Fredson Travel Inc. (No. 2) (1982), 36 O.R.(2d) 17; 133 D.L.R.(3d) 632, I reviewed the law with respect to sovereign immunity. The basic principle is that such immunity is absolute. However, in England, and to a lesser extent in Canada, some exceptions to this rule have been recognized. None of the exceptions have related to illegal acts of a foreign state but all relate to commercial or property matters of a private nature. Some cases have referred to a distinction between conduct in the nature of a public or private act. No case has even indicated that an act of a public nature is exempt from absolute privilege. It would appear from the decision in Gouvernment de République Démocratique du Congo v. Venne , [1971] S.C.R. 997; 22

D.L.R.(3d) 669, that acts that some persons might normally consider to be commercial are not so when they are done in the performance of a sovereign act of state." [53]

As indicated earlier, in the United States, the comparable legislation to the State Immunity Act is the FSIA , supra. In Herbage v. Meese , 747 F.Supp. 60 (D.C.D.C. #1990), affd. without reasons 946 F.2d 1564 ( 1991), it was alleged that certain of the defendants who were functionaries of the British Government had entered into an illegal conspiracy to extradite the plaintiff to the United States. The defendants moved to dismiss the action as against them on the ground that they were entitled to immunity under the FSIA . It was contended that the defendants were not entitled to immunity because of the alleged illegalities. Green, J., dealt with this contention at p. 67:

[54]

"Arguing that these defendants, acting illegally, cannot have the benefit of immunity, Herbage contends they are subject to this court's jurisdiction. Nonetheless, these men were acting in their official capacities as agents of the British government (both on a national and local level); those actions cannot and do not subject them to liability in the courts of the United States. Since the activity complained of is governmental in nature and performed by officials of that government, this court does not have jurisdiction over a foreign sovereign. Texas Trading & Milling Corp. v. Federal Republic of Nigeria , 647 F.2d 300, 307 (2d Cir. #1981), cert. denied, 454 U.S. 1148; 102 S. Ct. 1012; 71 L.Ed.2d 301 (1982).

[55]

"The FSIA is absolute in this regard, no matter how heinous the alleged illegalities. The court has no authority to address the legality of the defendants' actions."

The State Immunity Act 1978 [56]

[33] The background to the State Immunity Act 1978 is well known. It is described at length in the speech of Lord Wilberforce in I Congreso and I need not repeat it in any detail. Until 1975 England, almost alone of the major trading nations, continued to adhere to a pure, absolute doctrine of state immunity. In the 1970's, mainly under the influence of Lord Denning, M.R., we abandoned that position and adopted the so-called restrictive theory of state immunity under which acts of a commercial nature do not attract state immunity even if done for governmental or political reasons. This development of the common law was confirmed by your Lordships' House in I Congreso in relation to acts committed before the passing of the Act of 1978 .

[57]

[1] Lord Hope of Craighead : My Lords, this case is concerned with the immunity of a foreign state from the jurisdiction of the English courts. The respondent is an official of the Department of Defense of the United States of America, of which country he is also a citizen. The United States of America has asserted immunity on his behalf in regard to proceedings which the appellant has brought against him in this country for damages. Her claim relates to a memorandum which the respondent wrote in his capacity as educational services officer at the United States base at Menwith Hill R.A.F. Station in North Yorkshire. She claims that it contained untrue statements about her and was defamatory.

[58]

[2] The immunity which is accorded by English law to foreign states in civil proceedings is the subject of two separate regimes. The first is that laid down by Part I of the State Immunity Act 1978, by which a foreign state is immune from the jurisdiction of the United Kingdom courts unless one of a series of exceptions to immunity in ss. 2 to 11 applies. The only exception on which the appellant seeks to rely in this case is that which is to be found in s. 3 of the Act , which relates to commercial transactions and contracts to be performed in the United Kingdom. The second regime is that under the common law. It applies to all cases that fall outside the scope of Part I of the Act . It is also necessary in this case to consider s. 16(2) of the State Immunity Act 1978, as this section disapplies Part I of that Act where the proceedings relate to "anything done by or in relation to the armed forces of a state while present in the United Kingdom".

International Law - Jurisdiction Immunity Issues [29] Having said all that I ask two obvious questions. How is the U.S. government subject to the jurisdiction of this court? Second, if I was unwise enough to grant the order how would the plaintiff

enforce it against the U.S. government? See Allen v. Richardson Greenshields of Canada Limited (1988), 23 B.C.L.R.(2d) 1 (C.A.) about granting orders which cannot be enforced. In ATU v. ICTU (1998), 225 A.R. 220 (QB) defamamtion was through newsletters and pamphlets that systematically attacked ATU, some of its officers and an ATU local, in an orchestrated effort to lure members away from ATU. In Olson v. Runciman, [2001] A.R. TBEd. JN.065 the case was an action in defamation arising from a series of letters written by the Defendant, Ross A. Runciman ("Runciman"), President of Canadian Aero Accessories Ltd. ("Canadian Aero"), an aircraft repair company regulated by Transport Canada, concerning the Plaintiff Olson, a Transport Canada inspector. Holland v. Lampen-Wolfe (2000), 259 N.R. 1 (HL) [59]

Holland (appellant) v. Lampen-Wolfe (respondent) Indexed As: Holland v. Lampen-Wolfe House of Lords Lord Hope of Craighead, Lord Cooke of Thorndon, Lord Clyde, Lord Hobhouse of Woodborough and Lord Millett July 20, 2000.

International Law - In Jaffe v. Miller (1993), 64 O.A.C. 20 (CA) The task of this court is to determine if the appellants' case as pleaded falls within the exceptions to immunity afforded under the State Immunity Act , if the Act applies, and within the recognized exceptions to the common law, if the conduct alleged pre-dates the Act . I cannot give effect to the appellants' argument that the conduct as pleaded of the personal responding defendants was of such a nature as to deprive them of the protection afforded to functionaries of the State of Florida. These were functionaries of a foreign state and whether acting legally or illegally they attract immunity in the same way as the state itself. [60]

Sovereignty - Incidents of - Immunity - Acta imperii (sovereign or public acts) - Miller worked for the International Civil Aviation Organization (ICAO) in Montreal - ICAO had its headquarters in a building leased to the federal Crown for use by ICAO - Miller sued the Crown in Quebec Superior Court for damages for health problems resulting from the inadequate air quality in the building He claimed that the Crown was aware of the air quality problems but had failed to warn of health dangers - The Crown moved to dismiss the action for lack of jurisdiction ratione materiae - The Crown argued that anything occurring at the place of employment, where that location resulted from an international agreement between an international organization and the Crown, was a sovereign act and, therefore, that no matter how remote, this act was protected by immunity - The Supreme Court of Canada rejected the argument and affirmed the dismissal of the motion - The failure to warn of health dangers, if proven, could not be seen as a "sovereign act" as it clearly had nothing to do with the agreement between ICAO and the Crown, nor with ICAO's daily activities See paragraphs 46 to 50.

[61]

Sovereignty - Incidents of - Immunity - Exceptions - Death, personal injury, torture and hostage taking - [See International Law - Topic 2204 ].

[62]

Canada arrested Schreiber so that he could be extradited to Germany in relation to tax evasion and other charges. Schreiber sued Canada and Germany, seeking damages for breaches of duties of care, abuse of public office, bad faith and violation of Charter rights. Canada sought to stay the action pending the determination of the extradition proceedings. Germany sought an order dismissing the action on the ground that it enjoyed state immunity.

[63]

Jaffe sued the defendants, alleging that they, acting alone and in concert, caused false criminal charges to be laid against him in Florida in order to coerce him into settling a civil suit in Florida against a company controlled by him. A dependent claimed damages under s. 60 of the Ontario Family Law Reform Act. Six of the defendants unsuccessfully moved to stay proceedings on the basis that Ontario was not a convenient forum. An appeal was dismissed. The six defendants moved to have the action against them dismissed on the grounds of sovereign immunity.

[64]

Sovereignty - Incidents of - Immunity - General - The Ontario Court of Appeal considered the impact and effect of the federal State Immunity Act on the common law doctrine of sovereign immunity - See paragraphs 12 to 22 - The court concluded that the Act continued "... the

fundamental extension of immunity to a foreign sovereign at the same time as acknowledging that such immunity, in particular contexts, is to be recognized in a restricted rather than an absolute fashion. Judicial review of the assertion of immunity has the advantage, particularly in a commercial context, of depoliticizing the assessment of the legal validity of the immunity claimed ..." - See paragraph 22. [65]

Sovereignty - Incidents of - Immunity - General - Plaintiffs sued functionaries of a foreign State The functionaries claimed sovereign immunity - The plaintiffs alleged that the functionaries had lost their sovereign immunity due to the illegalities of their conduct - The Ontario Court of Appeal concluded that the functionaries had sovereign immunity both at common law and under the State Immunity Act - The court stated that "... even allowing for the new restrictive approach to immunity, when the immunity exists either under the common law or under the [federal] State Immunity Act, it is absolute" - See paragraphs 35 to 41.

[66]

Sovereignty - Incidents of - Immunity - Waiver - Plaintiffs sued functionaries of a foreign State The functionaries claimed sovereign immunity - The plaintiffs asserted that the functionaries had waived their claim to immunity by unsuccessfully moving under Ontario Civil Procedure Rule 17 to stay proceedings on the basis of forum non conveniens - The Ontario Court of Appeal rejected the argument - See paragraphs 42 to 48.

[67]

Sovereignty - Incidents of - Immunity - Functionary of foreign state - The Ontario Court of Appeal stated that it is "... a matter of fact for the court to decide in each case whether any given person performing a particular function is a functionary of the foreign state" - See paragraph 33 - The court concluded that a functionary included government officials, civil servants and bureaucrats See paragraph 32.

[68]

International Law - Sovereignty - Incidents of - Immunity - Functionary of foreign state - The Ontario Court of Appeal affirmed that Florida's Attorney General, its Division of Risk Management (Florida Department of Insurance), its state attorneys, its assistant state attorneys and an investigator for the office of the State Attorney were functionaries at common law and under the federal State Immunity Act - Their positions were created by the State Constitution and they were entitled to state immunity when acting within the scope of those duties and in furtherance of a public act - See paragraphs 23 to 34.

International Law - Topic 2208 [69]

Sovereignty - Incidents of - Immunity - Scope of - When determined - A plaintiff and his dependent sued foreign functionaries for personal injuries arising from their tortious acts and an ongoing conspiracy - The functionaries claimed sovereign immunity - Although common law did not except personal injuries from state immunity, s. 6 of the federal State Immunity Act did - The Ontario Court of Appeal refused to apply s. 6 where (1) the alleged conspiracy was entered into in Florida to harm the plaintiff's Florida business interests; and (2) no torts were committed in Canada after the passage of the Act - See paragraphs 49 to 54 - The court stated that "... immunity attaches when the foreign state is permitted to exercise a presence in the host country and is subject to whatever terms are recognized at the time of such entry " - See paragraph 49.

International Law - Topic 2201 [70]

Sovereignty - Incidents of - Immunity - Acta imperii (sovereign or public acts) - Holland, an U.S. professor, taught U.S. military personnel and others at an U.S. base in the United Kingdom under a commercial agreement between her university and the U.S. Government - Lampen-Wolfe, an education services officer (civilian) of the U.S. Department of Defence, wrote a memorandum questioning Holland's professional competence - Holland sued Lampen-Wolfe in the United Kingdom for defamation - The House of Lords held that Lampen-Wolfe was protected by state immunity under common law - He acted as a U.S. official in the course of the performance of its sovereign function of maintaining its armed forces in the United Kingdom - Section 6 of the European Convention on Human Rights and Fundamental Freedoms, which guaranteed access to justice, did not impact on U.S. state immunity.

International Law - Topic 2202 [71]

Sovereignty - Incidents of - Immunity - Exceptions - Proceedings relating to commercial activity of foreign state - Acta gestionis - Holland, an U.S. professor, taught U.S. military personnel and others at an U.S. base in the United Kingdom under a commercial agreement between her university and the U.S. Government - Lampen-Wolfe, an education services officer of the U.S. Defence Department, wrote a memorandum questioning Holland's professional competence Holland sued Lampen-Wolfe for defamation - She argued that Lampen-Wolfe could not invoke state immunity based on a statutory exception to the general rule of state immunity concerning commercial transactions performed in the United Kingdom (State Immunity Act, 1978, s. 3) - The House of Lords rejected the argument - Part I of the Act (including s. 3) did not apply because her action related to something done by or in relation to the armed forces of the United States (Act, s. 16(2)).

International Forum European Court Argument - State Immunity And The European Convention [72]

The Defendant has put forward a proposition to this Court that an international tribunal is more likely the forma conveniens for the Plaintiffs complaints. As the Respondent has identified to this Court and as is obvious from the Defendant's applications no such tribunal is named. However, it can be inferred from the affidavit of Dobreva that the international tribunal in question is the European Court and the convenient forum for the Defendant. The European Convention on Human and Fundamental Rights the applicable international agreement. This deserves some discussion.

[73]

First Canada is not a party to this agreement and a guiding principal of the European Court as a final court is to examine complaints only after the applicant has exhausted the national courts of the High Contracting Party, a fortiori, citizens of Canada cannot seek judicial redress before the European Court for wrongs affecting them outside the jurisdiction of a contracting state.

[74]

A reading of Article 6 of the European Convention affords to everyone the right to a fair trial for the determination of his civil rights and obligations. This reflects the principle of English law to which Sir Thomas Bingham, M.R., gave utterance in a celebrated and much quoted observation that the policy which has first claim on the loyalty of the law is that wrongs should be remedied: see X v. Bedfordshire County Council , [1995] 2 A.C. 633, at p. 663.

[75]

This may appear to be inconsistent with a doctrine of comprehensive and unqualified state immunity in those cases where it is applicable, however there is in a practical sense no such inconsistency. This is not because the right guaranteed by art. 6 is not absolute but subject to limitations, nor is it because the doctrine of state immunity serves a legitimate aim. It is because art. 6 forbids a contracting state from denying individuals the benefit of its powers of adjudication.

[76]

The European Convention does not and can not however extend the scope of these powers of adjudication beyond the national law of the contracting state, instead it requires the contracting states to maintain fair and public judicial processes and forbids them to deny individuals access to those processes for the determination of their civil rights. The Court may recall the correspondence of the Defendant's Minister Dimitar Tonchev to the Plaintiff Kapoustin wherein the Defendant Bulgaria has wrongly enforced this policy of "access" in the alternative, to deny rather than secure a determination of civil rights [see: Affidavit Kapoustin Exhibit " " ].

[77]

Returning to the inference of the Defendant to the European Court. The reasoning of the European Convention presupposes that the contracting state in question has the powers of adjudication necessary to resolve the issues in dispute. As the respondent has said earlier in this Factum international law can not confer on Bulgaria as a contracting state adjudicative powers which it simply does not possess.

[78]

European Court case law overwhelming demonstrates it is not jurisdiction forma conveniens. If this Court finds it necessary the Respondent can cited numerous cases in which the European

Court of Human Rights has examined the circumstances in which an individual has been denied access to the courts of a contracting state and has held that the denial was not unlawful because it pursued a legitimate aim and was proportionate. It is a reasonable inference that, if this had not been the case, the court would have found that there was an infringement of Convention rights. But in those cases the extent of the jurisdiction of the state party was not in question. Where it is, it must be determined first, for if the state party has no jurisdiction to exercise, questions of legitimate aim and proportionality do not arise. Bulgaria can not adjudicate the legitimate aims and issues raised by the plaintiffs in either action. As can be seen from the affidavit (Amicus Curai) of xxxxit the Bulgaria Civil Code of Procedure and Commercial Codes simply do not have the procedural tools or substantive law necessary to fairly hear.. [79]

The immunity claimed by Bulgaria in the present case goes further than required by international law, and the exceptions of commercial activity, personal injury and loss or damage to property. The Criminal Code of Canada, the Human Rights Act and Charter will oblige this Court to decide the two cases before it, whether under statute or at common law, and the compatibly of the Defendant's acts with its European Convention obligations. In the interests of justice and a fair hearing this Court should do so unless it is prevented from doing so by primary or other legislation which cannot be read compatibly with the European Convention, case law shoes no such incompatibility.

Foma Conveniens International - Conflict of Laws - Forum conveniens [80]

Actions - General - Forum conveniens - Considerations - The Plaintiffs Michael, Tracy and Nicholas Kapoustin sued the Minister of Finance Republic of Bulgaria in two separate actions One action alleged inter alia, defamation with malice, personal injury and breach of contract, and interference with commercial activities. The other, undue influence and interference causing a breach of contract and interference with commercial activities. Bulgaria seeks an order setting aside plaintiffs claims - Bulgaria argued that British Columbia was not a convenient forum for the action - Pleadings inferred that, inter alia, the nature and subject matter of the actions made an "international tribunal" the forum conveniens. Bulgaria made no inferences or assertions as to the location of witnesses, the location of documents, and the juridical advantage or disadvantage to the parties should the provincial court hear the action.

International Law - Comity -Forma Conveniens [81]

Actions - International Comity - State Immunity Forum Conveniens - Considerations -The Plaintiffs Michael, Tracy and Nicholas Kapoustin sued the Minister of Finance Republic of Bulgaria in two separate actions. One action alleged inter alia, defamation with malice, personal injury and breach of contract and interference with commercial activities. The other, undue influence and interference causing a breach of contract and interference with commercial activities. The Defendant Bulgaria seeks an order setting aside the Plaintiffs claims against Bulgaria, it inferrs that the Ministry of Finance as a government department of a foreign state under the State Immunity Act, is immune to the jurisdiction of the British Columbia courts. [see: Calgary Univ. v. Colorado Sch. of Mines (1995), 179 A.R. 81 (QB)]

Forma Conveniens Practice - Rule 13(10) [82]

Ex juris Defendant - Applications - Rule 13(10) of the Rules of Court - Defendant a foreign government seeks to set aside service of endorsed Writs of Summons and Statements of Claim Defendant Bulgaria claims there is no connect of the plaintiffs' claims and the courts of Canada. A provincial legislature has no power to impose its own laws on extra-territorial status, contracts,

conduct or property. Choice of law rules are part of the Provinces' common law and subject to the same constitutional limits as are all legislative endeavours. [Hogg, op. cit. At pp.13-23] Jurisdiction Simpliciter and Forma Conveniens [83]

Counsel for the defendant argues that this court should decline jurisdiction on the basis of forum conveniens , that the applicable substantive law is that of an international tribunal.

[84]

On the issue of prima facie jurisdiction, the defendant maintains that the Supreme Court of British Columbia does not have jurisdiction in these actions by virtue of the parties residing in British Columbia, the defendant challenges the court's jurisdiction.

[85]

There are four decisions in particular which were of assistance that the Respondent refers to :

[86]

Stern v. Dove Audio, Inc. , [1994] B.C.J. No. 863 (B.C.S.C.);

[87]

Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon , [1994] 3 S.C.R. 1022, [1994] 3 S.C.J. No. 110 (S.C.C.);

[88]

Hanlan v. Sernesky , [Q.L. 1998 O.J. 1236] (C.A.Ont.); (1997) 35 O.R. (3d) 603 ( Ont.Crt.Gen.Div.);

[89]

Amchem Products Inc. v. British Columbia (Workers' Compensation Board ) (1993), 77 B.C.L.R. (2d) 62 (S.C.C.).

Conflict of Laws - Supreme Court of Canada - Forum Conveniens [90]

Actions - Forum conveniens - Considerations - The Supreme Court of Canada stated that "in Canada, a court may exercise jurisdiction only if it has a 'real and substantial connection' (a term not yet fully defined) with the subject matter of the litigation; ... This test has the effect of preventing a court from unduly entering into matters in which the jurisdiction in which it is located has little interest. In addition, through the doctrine of forum non conveniens a court may refuse to exercise jurisdiction where, under the rule elaborated in Amchem ... if there is a more convenient or appropriate forum elsewhere."

Conflict of Laws - Jurisdiction S004040 [91]

The Supreme Court of Canada held that the general rule was that the substantive law of the lex loci delicti (where injury occurred) applied, subject to circumstances where a rigid application of the rule would result in injustice (international litigation only) - The rule had the advantages of certainty, easy application, predictability and met normal expectations - The court rejected the approach of the courts applying their own substantive law subject to the wrong being " unjustifiable" in the other jurisdiction - That rule violated the territoriality principle - The court also rejected the "proper law of the tort" rule -

Conflict of Laws - Forum Conveniens [92]

Actions - General - Forum conveniens - Considerations - Plaintiffs refer to the test for forum conveniens set out by, inter alio, the Alberta Court of Appeal in United Oilseed Products Ltd. v. Royal Bank of Canada wherein Stevenson, J.A., said "1. The test to be applied in all cases where there is an issue of determining the appropriate forum, is that of forum conveniens, the forum which is more suitable for the ends of justice. 2. Where a forum possesses jurisdiction over a defendant, as of right, the defendant must show that there is another available forum which is clearly or distinctly more suitable. 3. Where the jurisdiction does not exist as of right, the same burden rests on the party seeking to establish jurisdiction (typically service ex juris). 4. While the overall burden is as stated, the party alleging an advantage or disadvantage must establish it" Bulgaria infers but does not allege any advantage or disadvantage to the parties.

13(10) and 14(6) Tort Actions - Jurisdiction - Choice of Law Rule - Perosnal Injury [93]

Jurisdiction simpliciter - Forum non Conveniens Rationale - choice of law rule - Court required to connect the alleged wrongful conduct to the place of its occurrence. The parties will be judged under the law governing them where they took the action in question. Plaintiffs rely on Rule 13(1)(h). Robert and Tatiana Kap by her guardian ad litem Sonja Kap Jordan, and Michael Kapoustin allege that the mental degenerative disease developed by Tatiana at the age of 68 was brought on or seriously aggravated by a psychosomatic phenomena induced by the emotional distress, mental anguish and anxiety surrounding Robert and Tatiana.

13(10) 14(6) Tort Actions - Jurisdiction - Choice of Law Rule - Personal Injury [94]

Jurisdiction simpliciter - Forum non Conveniens Rationale - choice of law rule - Court required to connect the alleged wrongful conduct to the place of its occurrence. The parties will be judged under the law governing them where they took the action in question. Plaintiffs rely on Rule 13(1)(h). Tracy and Michael Kapoustin allege their son Nicholas developed Type II diabetes in British Columbia at the age of 5. The onset of the disease was a psychosomatic phenomena induced by the emotional distress, mental anguish and anxiety surrounding Nicholas and TracyPersonal injury - consequences to Nicholas are physically manifest in his diabetes. Plaintiffs allege the personal injury of Nicholas was part of a conspiracy of the defendants to inflict, by slander or liable, the personal injury and done with malice by the Defendant when effected the defamation.

Argument International Private Law - Forum Non Conveniens [95]

In recent years the courts have been called upon to review a number of the structural rules of conflicts of laws or private international law. In Morguard Investments Ltd. et al. v. De Savoye , [1990] 3 S.C.R. 1077; 122 N.R. 81; [1991] 2 W.W.R. 217, and Hunt v. Lac d'Amiante du Québec Ltée et al. , [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, the courts had having occasion to revisit the law governing the jurisdiction of courts to deal with multijurisdictional problems and the recognition to be accorded by the courts of one jurisdiction to a judgment made in another jurisdiction. In Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.) , [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, the court also examined the rules governing when a court may refuse jurisdiction on the basis of "forum non conveniens".

[96]

In the two application before the Master the Court is again called upon to reconsider the "choice of law rule", i.e., which law should govern in cases involving the interests of more than one jurisdiction, specifically as it concerns claims framed in tort and breaches of contract. The laws suits allegedly involve personal injury and economic losses of residents of the province and foreign plaintiffs connected to the province as against foreign defendants of different jurisdictions.

Justice and Fairness Lex Loci Delecti Argument Convenience Justice Fairness Practical Results [97]

There are as well more general arguments of convenience for allowing an exception to the "lex loci delicti" rule. a flexible rule better meets the demands of justice, fairness and practical results and underline what seems to be the most obvious defect of this approach -- its extreme uncertainty. Lord Wilberforce in Chaplin v. Boys , supra, at p. 1103, after setting forth the complexities and uncertainties of the rule thus summarized his view: "The criticism is easy to make that, more even than the doctrine of proper law of the contract where the search is often one of great perplexity, the task of tracing the relevant contacts, and of weighing them, qualitatively, against each other, complicates the task of the courts and leads to uncertainty and dissent ( see particularly the powerful dissents in Griffith's case of Bell, Ch. J., and in Miller's case of Breitel, J.)."

"I agree with Lord Pearson too, at p. 1116, that the proposed rule "is lacking in certainty and likely to create or prolong litigation". As illustrating the uncertainty, he referred to Dym v. Gordon (1965), 209 N.E.2d 792, in which four members of the court held that the law of Colorado applied while the three dissenters would have applied the law of New York. Even more difficult problems would arise where more than two states had interests in the litigation. I therefore agree with the views expressed by the majority in Chaplin v. Boys ." [98]

A summarized Canadian approach can be found in Professor Catherine Walsh's article "A Stranger in the Promised Land?": (1988), 33 U.N.B.L.J. 173, at p. 182. She states: "In this situation [where the defendant is resident in another jurisdiction whose domestic law allows full tort recovery], it is argued, application of forum law neither prejudices the defendant nor impinges on the interests of the jurisdiction where the accident occurred…….Indeed, from la Régie's perspective, it is likely preferable that non-residents should settle their rights and obligations inter se in their home courts."

[99]

Walsh's article concerned the auto accident victims, however the similarities, mutatis mutandis to the issue presently before the Bar cannot be over looked. The Kapoustin's and Kap's are injured parties whose home jurisdiction's domestic law allows full tort recovery, the claims framed in tort fell here and the injuries consequenced occurred here. The defendants home jurisdiction does not allow full tort recovery and there is no "international tribunal" to which Canada is a party and where citizens can turn for judicial relief. There is little to gain and much to lose in creating an exception to the "lex loci delicti" in relation to domestic litigation.

[100]

It is, of course, true that the action is an action for defamation, not for the negligent provision of professional services. Littrell is clearly distinguishable on this ground. But I do not regard the distinction as material. The respondent was responsible for supervising the provision of educational services to members of the United States armed forces in the United Kingdom and their families. He published the material alleged to be defamatory in the course of his duties. If the provision of the services in question was an official or governmental act of the United States, then so was its supervision by the respondent. I would hold that he was acting as an official of the United States in the course of the performance of its sovereign function of maintaining its armed forces in this country.

[101]

The problem with the submissions before the Master is that the applicable law is clear. The difficulty, if any, lies in the characterisation of the facts for the purpose of applying the law to them. The issue may be said to be finely balanced. But that makes no difference. Either the two proceedings presently before the Bar relate to something done by or in relation to the commercial activities of the government of Bulgaria and the plaintiffs loss of property or they do not. Either the personal injury, including physical harm is derived from the of writing and publication of the slander or libel sued upon and attempts at extortion or were instead acts of Bulgaria "iure imperii" or they were not. The plaintiffs have reached their particular conclusions and brought the two actions because the right of access to justice which the law affords them in exceptions to the immunity from suit which international law affords to Bulgaria. Bulgaria as a defendant has rights too, and this Court is bound to respect them and its claims to immunity from the present suits, but only where that immunity is available. The material evidence must prevail over any parties pleadings and for that reason the government of the Defendant Bulgaria must submit itself to the jurisdiction of this Court and give itself over to addressing the facts as they are before us and to speak to the allegations against it.

Argumeny Exception to "lex loci delicti" [102]

I turn then to consider whether there should be an exception to the " lex loci delicti" rule. As mentioned earlier, the mere fact that another state (or province) has an interest in a wrong committed in a foreign state (or province) is not enough to warrant its exercising jurisdiction over that activity in the foreign state, for a wrong in one state will often have an impact in another. To permit a court in a territorial jurisdiction to deal with a wrong committed in another jurisdiction solely in accordance with the law of that court's jurisdiction, then some rule must be devised to

displace the "lex loci delicti", and that rule must be capable of escaping the spectre that a multiplicity of jurisdictions may become capable of exercising jurisdiction over the same activity in accordance with their own laws. This would not only encourage forum shopping but have the underlying effect of inhibiting mobility. The Proper Law of Tort USA [103]

A means of achieving this has been attempted in the United States through an approach often referred to as the proper law of the tort. This involves qualitatively weighing the relevant contacts with the competing jurisdictions to determine which has the most significant connections with the wrong. The approach was adopted by the majority in a strongly divided Court of Appeals of New York in Babcock v. Jackson , supra, a case whose facts were very similar to McLean v. Pettigrew , supra. The plaintiff, while a gratuitous passenger in the defendant's automobile, suffered injuries when the automobile was in an accident. Both plaintiff and defendant were residents of New York, but the accident occurred in Ontario where a statute absolved the owner and driver from liability for gratuitous passengers. In an action in New York, the defendant moved for dismissal on the ground that the law of Ontario applied. A majority denied the motion to dismiss. The court stated that while the jurisdiction where the wrongful conduct occurred will usually govern, justice, fairness and best practical results may better be achieved in tort cases with multi-state contacts by according controlling effect to the law of the jurisdiction which, because of its relationship and contact with the occurrence and the parties, has the greatest concern with the issue raised in the litigation. There has been a tendency to adopt that approach in a number of the American states, although it would appear the vast majority still apply the law of the place of the injury; see Richards v. United States (1962), 369 U.S. 1, at pp. 11-14.

[104]

There might, be room for an exception where the parties are nationals or residents of the forum. Objections to an absolute rule of " lex loci delicti" generally arise in such situations; see Babcock , supra; McLean v. Pettigrew , supra. There are several reasons why it is considered appropriate that the home state of the parties apply its own law to them. It is perceived by some commentators to be "within the reasonable expectations of the parties" to apply their home law to them. It is considered to be more convenient for both litigants and judges and to accord with forum notions of "public policy" or justice. In Neumeier v. Kuehner (1972), 286 N.E.2d 454 (N.Y.C.A.), the underlying rationale of the " justice" theory was succinctly put by Fuld, C.J., at p. 456: "It is clear that ... New York has a deep interest in protecting its own residents, injured in a foreign state, against unfair or anachronistic statutes of that state." I shall consider the issue of "public policy" first.

[105]

The imputed injustice of applying the "lex loci delicti" in the seminal choice of law cases which are referred to arose from some aspect of the law of the "locus delicti" that the court considered contrary to the public policy of the forum, i.e., unfair. In McLean , supra, and Babcock , supra, it was Ontario's notorious gratuitous passenger law. In Chaplin , supra, it was the unavailability of general damages under Maltese law. In LaVan v. Danyluk (1970), 75 W.W.R.(N.S.) 500 (B.C.S.C.), it was the absence of a contributory negligence statute under Washington law. In Tolofson , as between father and son (residents of British Columbia), it is Saskatchewan's guest passenger law and the short limitation period for infants under Saskatchewan law.

[106]

As observed in Morguard , supra., the underlying principles of private international law are order and fairness, order comes first. Order is a precondition to justice. At all events, similar anomalies occur if we create an exception for domiciliaries. Thus are exceptions for "lex fori" when parties are from the forum, there are many factors, not the least of which are the involvement of the health care system of their home province and the plaintiffs forum insurer, which are considered justifications for allowing the plaintiffs and defendants to settle their affairs according to the "lex fori". The Hague Convention is germane here and has to do with judicial convenience. There appears to have been a desire that the Convention should, if possible, limit the number of occasions when judges of the forum would have to apply foreign law; difficulties of proof, the expense and inconvenience involved, and the possibility that the judge might misinterpret the foreign law were all concerns, mutatis mutandis, the general rule of " lex loci delicti", in cases

involving parties from two or more jurisdictions, chances are that the lawsuit will take place in the country in which the consequences of the tort were felt or alternatively took place. There merit to allowing judges in this situation to apply their own law. [107]

There is also a factor, however, of significant concern here in the actions arising before this Court on matters that in a foreign jurisdiction where the laws of our common law provinces, are very different from the other state and that their application in the foreign state are impossible and would give judges and lawyers significant difficulty. Lord Wilberforce in Chaplin v. Boys (at p. 1100) conceded the same on the international plane and set forth means, already referred to, of accommodating the problems that might be posed, means that could be equally useful here.

Argumeny Lex Loci Delecti v. Lex Form Specific Issues Tolofson v. Jensen [108]

In any action involving the application of a foreign law the characterization of rules of law as substantive or procedural is crucial for, as Cheshire and North, Cheshire and North's Private International Law (12th Ed. 1992), at pp. 74-75, state: "One of the eternal truths of every system of private international law is that a distinction must be made between substance and procedure, between right and remedy. The substantive rights of the parties to an action may be governed by a foreign law, but all matters appertaining to procedure are governed exclusively by the law of the forum."

[109]

The reason for the distinction is that the forum court cannot be expected to apply every procedural rule of the foreign state whose law it wishes to apply. The forum's procedural rules exist for the convenience of the court, and forum judges understand them. They aid the forum court to " administer [its] machinery as distinguished from its product" ( Poyser v. Minors (1881), 7 Q.B.D. 329 (C.A.), at p. 333, per Lush, L.J.). Although clearcut categorization has frequently been attempted, differentiating between what is a part of the court's machinery and what is irrevocably linked to the product is not always easy or straightforward. The legal realist Walter Cook has commented ( The Logical and Legal Bases of the Conflict of Laws (1942), at p. 166): "If we admit that the 'substantive' shades off by imperceptible degrees into the 'procedural', and that the 'line' between them does not 'exist', to be discovered merely by logic and analysis, but is rather to be drawn so as best to carry out our purpose, we see that our problem resolves itself substantially into this: How far can the court of the forum go in applying the rules taken from the foreign system of law without unduly hindering or inconveniencing itself?"

[110]

This pragmatic approach is illustrated by Block Brothers Realty Ltd. v. Mollard (1981), 122 D.L.R.(3d) 323 (B.C.C.A.). In that case the issue was whether the requirement of s. 37 of the Real Estate Act , R.S.B.C. 1979, c. 356, that a real estate agent be licensed in British Columbia, should be categorized as procedural or substantive. The parties had executed a real estate listing agreement in Alberta for land situated in British Columbia. The plaintiff, an agent licensed in Alberta, sold the land to Alberta residents. The defendant vendor failed or refused to pay the commission. The plaintiff sued in British Columbia. The "lex causae" was Alberta. The defendant pleaded that the British Columbia licensing requirement was procedural. The court, however, ruled that it was substantive, notwithstanding that the section read: "A person shall not maintain an action ...", language traditionally relied on for a finding that a statute is procedural because it purported to extinguish the remedy, but not the right. The court expressly relied on policy reasons for its decision. It stated:

[111]

"If, however, the contract is governed by the law of Alberta and if the contract is valid under the law of Alberta, the characterization of s. 37 as procedural would deprive the plaintiff of the opportunity to enforce his legal rights in a British Columbia Court. The only purpose of s. 37 is to enforce the licensing sections, and it should be examined in this context. I think that legislation should be categorized as procedural only if the question is beyond any doubt. If there is any doubt, the doubt should be resolved by holding that the legislation is substantive."

[112]

[79] This approach makes sense to me. It is right to say, however, that it is significantly different from the early common law position as it relates to statutes of limitation.

Main Goal Conflicts Rule [113]

One of the main goals of any conflicts rule is to create certainty in the law. Most matters would have to proceed to trial on the basis that the "lex loci delicti" applied. This is not to say that an exception to the "lex loci delicti" such as contained in the Hague Convention is indefensible on the international plane, particularly since it is enshrined in a convention that ensures reciprocity. As I have noted, however, a rule along the lines of the Hague Convention is not without its problems and does not appear to afford this country most of the advantages that Europeans may gain from it.

Right to Sue Argument S005454 -Right to Sue Case [114]

In Intl. Assoc. of Science v. Hamza (1995), 162 A.R. 349 (CA); 83 W.A.C. 349, the Alberta Court of Appeal held that the status of a party to sue is a procedural issue, thus the right of a foreign litigant to sue is properly determined by law - That law included the rules relating to private international law applicable to foreign litigants affirming that the pleading should not be struck at that stage of proceedings, rather, the plaintiffs should be allowed to proceed in order to prove that they have status - The court discussed generally the law relating to the rights of foreign entities to sue and stated that if the court is satisfied by proof of the foreign law that its directions and judgements are enforceable against identifiable legal persons, then a foreign entity with status to sue in its home jurisdiction should be allowed to sue in the province - The Hague Convention as previously cited permits enforcement of the judgements of Canadian courts by courts of the Republic of Bulgaria - the court saying "overall the law tends to support a granting of status in cases where the entity in question is recognised as a legal or juridical person by the laws of its home jurisdiction, in the sense of having status to sue ... The principle of comity of nations appears to further strengthen that position" and went on to say, inter alia, that "... in general, a resident entity has status to sue or be sued in Alberta if it is recognised under the statutory or common law as a natural or statutory person ...".

Conflict of Laws - Right to Sue - S005440 [115]

Actions - Choice of law - Right to Sue General - a unincorporated association of investors in Bulgaria, together with investors who are resident in the province, issued an endorsed Writ with statement of claim against the defendants before the provincial court of British Columbia. - An issue arises respecting the status of the Bulgaria investors to commence proceedings in CanadaPersons who can sue and be sued - Foreign entities - law relating to the status of foreign litigants (including individuals, corporations and unincorporated foreign entities) to sue in Canada.

Practice - Prima Facie [116]

The aggregate action, - issues of breach of duty, causation and disease,- Plaintiff required to adduce prima facie evidence.

What is Commercial Activity International Law -Supreme Court - Bear Contract is commercial activity. [117]

Legal Assistance - Criminal Matters - Information- Letters of Request, - Portions confirmed under oath - Plaintiffs argue that the slander or libel publicly repeated and printed are so detailed as to the R.C.M.P. information sent from the province and the Letters of Request, that it would be difficult to accept any other alternative except for a conspiracy by the defendants to personally injure the plaintiffs with information that was at the time only known to them and known to be false. The information gathered in the province and the Letters of Request connecting the commercial activities in Bulgaria with a third parties criminal activities in the province supplies the Plaintiffs with one nexus as required by them to overcome the jurisdiction simpliciter and

forma non conveniens complaints of the Defendant Bulgaria. Further, while it has been years since the apparent conclusion of the Canadian investigation, the last letter requesting information and the last sworn statement of the Defendant Doornbos came in August of 1997. The Plaintiffs learned of this nexus in April of 1999 and one cannot ignore the inherent delays involved with dealing with bureaucracies of a Defendant reluctant to provide the plaintiffs reliable self incriminating information and evidence. In all of the circumstances, the letters of request from Canada, the information from the province, the property identified in the province as the subject of the investigation. the sent data, the slander made and repeated or the libel published, had all at first originated from the R.C.M.P. in the province. The plaintiffs are supplying this Court with a sufficient and reliable factual basis under oath upon which creates a necessary connection of the province to Bulgaria. International Law - Personal Injury and Commercial Activity [118]

Sovereignty - Incidents of - Immunity - Exceptions - Proceedings relating to commercial activity of foreign state - Acta gestionis - The plaintiff sued the defendant shipowners for damages for injuries suffered while on a barge in the Panama Canal - The defendants sought to add the Panama Canal Commission as a third party - The Commission asserted that it was part of a foreign state government - The State Immunity Act, s. 5, provided that a foreign state was not immune from the jurisdiction of the Canadian courts in proceedings "that relate to any commercial activity of the foreign state" - The Commission argued that the proceeding was a personal injury action and s. 5 only covered commercial claims - The Federal Court of Canada, Trial Division, held that even if the third party claim was a personal injury action, it would still come within s. 5, which stated that immunity was lost with respect to proceedings "that relate to" any commercial activity .

International Law - Commercial Activities - Perosnal Injury [119]

Sovereignty - Incidents of - Immunity - Exceptions - Proceedings relating to commercial activity of foreign state - Acta gestionis - The plaintiff sued the defendant shipowners for damages for injuries suffered while on a barge in the Panama Canal - The defendants sought to add the Panama Canal Commission as a third party - The Commission asserted that it was part of a foreign state government - The State Immunity Act, s. 5, provided that a foreign state was not immune from the jurisdiction of the Canadian courts in proceedings "that relate to any commercial activity of the foreign state" - The Commission argued that the proceeding was a personal injury action and s. 5 only covered commercial claims - The Federal Court of Canada, Trial Division, held that the defendants' third party action was an independent and separate claim from the main action and was not a personal injury claim.

Breach of Contract Argument Contracts and Agreements RGO Office Products v. Knoll North Am. (1996), 180 A.R. 1 (QB) [120]

The resolution of these issues as is often the case, turns on the facts and circumstances surrounding the Plaintiffs, their various companies Bulgaria, the commerical activitities of its various institutions and their predecessor's dealings with each other over a 5 year period.

[121]

Summary:

[122]

The plaintiff claimed damages for breach of an alleged unwritten dealership agreement with the defendant. The plaintiff claimed that it was an implied term of the agreement that it could not be terminated without reasonable notice. After almost 20 years of selling the defendant's product, the defendant terminated the agreement on 60 days' notice. The defendant claimed there was only an agency agreement which did not require notice. Alternatively, the defendant claimed that 60 days was reasonable notice.

[123]

II Were There Agreements With the Government of Bulgaria?

[124]

An answer in the affirmative is possible even if this Court were to only rely on the balance of probabilities. That Plaintiffs were doing business perosnally or as LifeChoice et al with agencies of the government of Bulgaria is, due to the evidence of Kapoustin, Gogova and Lukanov and the number of transactions identified, difficult if not impossible for the defendants to argue in the alternative. The Defendant Bulgaria has wisely not attempted to traverse these allegations or the fact that LifeChoice was an exclusive distributor for its products in the province of British Columbia and elsewhere and that this exclusive distribution involved a written agreements and some albeit unwritten existed between Bulgarian government agencies and the Plaintiff Kapoustin in 1991 and had so, since the inception of LifeChoice International A.D. (Bulgaria) in 1993. There are various factors which should led the Court to the same conclusion, that the government of the Defendant Bulgaria was involved in promoting and sell its products and services in Canada to the Plaintiffs and together with the Plaintiffs to others in and connected to the province .

[125]

Firstly, the evidence of all the witnesses for the Plaintiffs show that LifeChoice et al were at first the primary and exclusive distributors in North American for products medical produced and service provided by commercial and scientific organisations in Bulgaria belonging to and under the control of the Defendant. Ms. Gogova, who testified for the plaintiffs, has openly acknowledged that LifeChoice et al were distributors for Bulgaria products.

[126]

Here list my info in same style. . Both the letter dated February 17, 1982 (Tab 1, Exhibit 1) and the letter dated May 15, 1984 from Fred Drechsel of Reff (Tab 2, Exhibit 1) are addressed to Ross Glen of R.G.O. and refer to R.G.O. as a dealer of Reff product. More importantly, the letter dated September 27, 1991 (Tab 3, Exhibit 1) which terminated the dealership agreement and gave R.G.O. 60 days notice of such cancellation, refers to the subject as being "Reff Inc. Dealer Agreement". It is clear that Reff in that letter of September 27, 1991 openly recognized in writing that the relationship R.G.O. and Reff had over that 20 year period constituted an agreement and that it was a dealer agreement, requiring 60 days notice to be cancelled. Had it been an agency arrangement as Knoll contended at trial, it would have then followed that there would have been no need for Knoll in its correspondence to R.G.O. to refer to it as a dealer agreement nor to give R.G.O. any notice of termination whatsoever. But that did not occur between the two parties over the 20 years. Their relationship was much more substantial than the agency arrangement, as contended to by Knoll. The mere fact that R.G.O. was not the sole and exclusive dealer of Reff product into the Calgary market over that 20 years does not persuade me to conclude, as Knoll would have me do so, that R.G.O. had an agency arrangement and not a dealer's agreement with Knoll.

[127]

In Radhakrishnan v. Calgary Univ. Fac. (1995), 178 A.R. 221 (CA); 110 W.A.C. 221 the Chambers Judge to hear the first application refused to strike the statement of claim or grant summary judgment. In response to the respondents' claim that the court lacks jurisdiction he stated at p. 6 of his reasons:

[128]

"It is obvious that the allegations of misrepresentation, fraud, breach of trust, willful default and undue influence, are not covered [by] or germane to the Universities Act or the Collective Agreement. For that reason alone the Statement of Claim cannot be struck under Rule 129[1](b) [as scandalous, frivolous or vexatious] or (d) [as an abuse of the process of the court]."

Actions Framed In Tort International Law - Sovereignty -Scope - Actions Framed in Tort [129]

Sovereignty - Incidents of - Immunity - Foreign agencies - The State Immunity Act provided that, "except in certain circumstances, a foreign state is immune from the jurisdiction of Canadian courts. Foreign state includes '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'" - The plaintiffs discusses the scope and doctrine of this Act, and in particular, whether it applied to commercial activities or a tort or criminal act by "alter-egos" of the Defendant Bulgaria in or connected to British Columbia.

International Law - Tort Action - Personal Injury Immunity - Personal injury - s. 6 State Immunity Act - physical harm a consequences of - Nichols Kapoustin manifested the injury to him when developing Diabete Type II not previously diagnosed. Plaintiffs allege the injury of Nicholas as resuling from a conspiracy of the defendants to inflict, by slander or liable, the personal injury and done with malice by the Defendant when effecting the defamation. International Law - Tort Action - Personal Injury Immunity - Personal injury - s. 6 State Immunity Act - physical harm a consequences of - Tatiana manifested the injury to her in a form off aggressive mental degeneration disease not previously diagnosed. Plaintiffs allege the injury of Tatiana was resulting from a conspiracy of the defendants to inflict, by slander or liable, the personal injury and done with malice by the Defendant when effecting the defamation. International Law - Personal Injury - Physical [130]

Sovereignty - Incidents of - Immunity - Exceptions - Death, personal injury, torture and hostage taking - Canada arrested Schreiber so that he could be extradited to Germany in relation to tax evasion and other charges - Schreiber sued Germany, claiming that he suffered personal injury, including mental distress, denial and restriction of his liberty and damage to his reputation because of Germany's failure to adhere to its treaty with Canada, the Extradition Act and the Charter Germany sought to dismiss the action, asserting state immunity - Section 6(a) of the State Immunity Act provided that a state was not immune respecting personal injury claims - Schreiber asserted that his claim fell within s. 6(a) - The Ontario Court of Appeal rejected the submission and interpreted the expression "personal injury" to mean " physical" injury - See paragraphs 27 to 57.

[131] [132]

Conflict of Laws - Topic 602

[133] [134]

Jurisdiction - General principles - International jurisdiction - Pinochet was the head of state of Chile between 1973 and 1990 - In 1998, while visiting England, Spain issued an international warrant for his arrest alleging, inter alia, murder, conspiracy to murder, torture and conspiracy to torture - Pinochet claimed complete immunity as head of state (immunity ratione personae) - In requesting his extradition, Spain submitted that Pinochet, as a former head of state, was entitled to only limited immunity (immunity ratione personae) - Furthermore, such immunity only applied to acts of state whilst in office - The immunity did not cover torture because it was not a state function - In 1988 both the United Kingdom and Chile had become parties to the Convention Against Torture -The Convention took effect in the UK on December 8, 1988 - The House of Lords ruled that Pinochet could be extradited on the charges of torture and conspiracy to torture relating to the period after December 8, 1988 - See paragraphs 38 to 53, 190, 247, 271, 320 and 366.

[135] [136]

Conflict of Laws - Topic 602

[137] [138]

Jurisdiction - General principles - International jurisdiction - Pinochet was the former head of state of Chile - On a visit to London, Pinochet was arrested on an international warrant issued by Spain - Spain requested his extradition alleging, inter alia, violations of the Torture Convention of 1984 Pinochet submitted that while torture was contrary to international law, it was not strictly an international crime in the highest sense - Spain submitted that the prohibition against torture was a peremptory norm or jus cogens, i.e., a norm that enjoys a higher rank in the international hierarchy than treaty law and customary rules - Such principles could not be derogated from by states

through international treaties or local or special customs - The House of Lords, per Lord BrowneWilkinson, held that "[t]he jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed. ... I have no doubt that long before the Torture Convention of 1984 state torture was an international crime in the highest sense." - See paragraphs 30, 31 and 305 to 309. [139] [140]

The statutory offence consists of taking and detaining a person (the hostage), so as to compel someone who is not the hostage to do or abstain from doing some act: s. 1. But the only conduct relating to hostages which is charged alleges that the person detained (the so-called hostage) was to be forced to do something by reasons of threats to injure other non-hostages which is the exact converse of the offence. ..." - See paragraphs 25, 130 to 136.

[141] [142]

Issue 4 Did Sutherland, J., Err

[143] [144] [145]

In Holding That S. 6 Of The

[146] [147] [148]

State Immunity Act Had No

[149] [150] [151]

Application To This Action?

[152] [153] [154]

[49] Since it is conceded that personal injuries were not excepted from state immunity at common law, the appellants must come within the State Immunity Act to succeed. Counsel for the appellants submitted that Sutherland, J., was wrong in holding that s. 6 of the Act had no application because the alleged kidnapping and personal injury to the appellant Jaffe took place prior to the Act coming into force. Her first argument was that the immunity of a foreign state took effect only when it was claimed and was subject to whatever rules that were applicable at that time. She could provide no authority for this proposition and it flies in the face of s. 3(1) and (2) of the Act set out above. It is clear from these subsections that a foreign state is immune from the jurisdiction of any court in Canada and that in any proceedings the court shall give effect to this immunity notwithstanding that the state has failed to take any step in the proceedings. The immunity attaches when the foreign state is permitted to exercise a presence in the host country and is subject to whatever terms are recognized at the time of such entry. The entry alleged in the case on appeal occurred in September of 1981 when the alleged kidnapping took place in Toronto. Accordingly, the appellants are not entitled to rely upon exceptions legislated after the date upon which this tort is said to have occurred.

[155] [156]

[157]

[50] Counsel's second submission had more substance. She pointed out that the statement of claim alleged an ongoing conspiracy that covered the period prior to the passage of the Act and continuing on at least until October 11, 1983, when the appellant Jaffe was released from prison in Florida and allowed to return to Toronto. The particular paragraphs of the statement of claim that she relied upon are:

[158]

"38. Thereafter, and in furtherance of the conspiracy, the conspirators caused and agreed with the defendants Snow, Accredited, Kear, and Johnsen and the defendants Kear and Johnsen, with the assistance of the defendant Norris, would attend in Toronto for the purpose of wrongfully abducting the plaintiff Sidney Jaffe and conveying him to the State of Florida.

[159] [160]

.....

[161] [162] [163]

"40. Upon his return from jogging, the plaintiff Sidney Jaffe was forcibly abducted, falsely imprisoned, and conveyed to Florida by the defendants Kear and Johnsen, who struck the plaintiff Sidney Jaffe on the head, threatened him with further physical harm, handcuffed him, and threatened to kill members of his family in order to prevent his escaping."

[164] [165]

None of the named defendants in these paragraphs are the responding defendants.

[166] [167]

[51] Under s. 6 of the State Immunity Act , which I have set out at the beginning of these reasons, there is no immunity with respect to claims for personal injury or damages to or loss of property. This is a restriction on the common law right of sovereign immunity, which extended to such claims.

[168] [169]

[52] On the basis of the allegations in the statement of claim, it could be argued that the conspiracy was entered into in 1980 in Florida to harm the appellants, to intimidate them for the purpose of extracting money in purported settlement of a civil suit against CSEL, a company controlled by Sidney Jaffe, and to harm the appellants' business interest in Florida. On this theory of the conspiracy, the subsequent tortious acts were merely overt acts in furtherance of the conspiracy. If this is so, the State Immunity Act has no application and the respondents are entitled to sovereign immunity under the common law.

[170] [171]

[53] If this is not the correct theory of the conspiracy and the proper one is that the statement of claim is alleging separate tortious acts, then in order for the exception in s. 6 of the State Immunity Act to apply, the personal injury or damage to property must occur in Canada after passage of the Act . The malicious prosecution in July 1980, occurred in Florida; hence it would not come within s. 6 but would be covered by the common law. The kidnapping in September 1981 occurred in Ontario. However, this was prior to the State Immunity Act coming into force so that s. 6, as Sutherland, J., found, would have no application. The malicious prosecution in July 1983, occurred in Florida; consequently, it does not come within s. 6.

[172] [173]

[174]

[54] The troublesome feature of this case is the wrongful imprisonment from September 1981 to October 1983. Assuming that the kidnapping in September 1981 was a tortious act, it could be argued that the false imprisonment which resulted from the commission of that tort was a tort which continued after the State Immunity Act came into force on July 15, 1983. However, I do not believe that this accords with the facts. The kidnapping, assuming its illegality, came to an end when Jaffe was delivered up to the Florida court by the bail bondsmen. The imprisonment in Florida resulted from the actions of the Florida courts in holding Jaffe for trial and in subsequently finding that he had committed a criminal offence. Since that sequence of acts occurred in Florida, s. 6 has no application.

[175]

[55] In any event, while it is trite law that on this type of application the court must accept the allegations in the statement of claim as being true, the pleading relied upon must conform to the rules of pleading. Here the bald assertion that there was a conspiracy relating specifically to the alleged kidnapping without identifying the conspirators or particularizing the acts in furtherance of the conspiracy does not amount to "a concise statement of the material facts on which the party relies for his or her claim": see rule 25.06(1).

[176]

[56] The responding defendants cannot move to strike out these offending paragraphs without serving notice of intention to defend. This does not mean that they cannot complain about their sufficiency on an application to claim immunity. While the court is not concerned about the niceties of pleading on such an application, it will not assert jurisdiction over a cause of action where there has been such a flagrant disregard of the rules of pleading as is evident here. We cannot determine what part the responding defendants played in this conspiracy, or just what the conspiracy is that would deprive them of immunity. The appellants have simply failed to establish in their statement of claim that the responding defendants fall within the exceptions provided by the common law or the State Immunity Act . In my opinion, this ground of appeal must also fail.

Argument - International Law - Personal Injury [177]

In Schreiber supra. it was alleged that he suffered personal injury, including mental distress, denial and restriction of his liberty, and damage to his reputation as a result of Germany's deliberate, reckless, or negligent failure to adhere to its treaty with Canada, the Extradition Act , and the Charter . Schreiber has not alleged that he suffered any physical injury.

[178]

Counsel for Schreiber argued that the personal injury includes any interference with, or injury to, the person and is not limited to physical injury. He relies on a passage from the judgment of this court in Walker v. Bank of New York Inc. , supra. Counsel for the plaintiff maintained that there is no principled basis for holding a foreign sovereign accountable in a Canadian court for tortious conduct that causes a physical injury in Canada but not for the same tortious conduct if it causes other forms of interference with, or harm to, the person. Counsel observes that non-physical harm to the person may be more serious than physical harm. He urges the court to interpret s. 6(a) so as to produce a "reasonable and just outcome".

[179]

Counsel for Germany submited that this court has held that claims which do not involve physical injury are not within the scope of the exemption to sovereign immunity created by s. 6(a). He relies on the judgment in United States of America v. Friedland , supra. Counsel contends that Friedland , supra, effectively explains the passage in Walker , supra, relied on by Schreiber so as to render that reliance misplaced. Counsel for Germany also submits that s. 6(a) derogates from the broad immunity enjoyed by foreign sovereigns at common law and should be read restrictively. Lastly, in direct response to Schreiber's argument that he suffers an injustice if Germany's claim to immunity succeeds, counsel submits that every recognition of sovereign immunity can be seen as doing an injustice to an individual plaintiff in that it denies that plaintiff his or her day in court. Counsel submits that the policies that animate the sovereign immunity doctrine look to broader international interests at the expense of the personal interests of those who claim to be wronged by a foreign sovereign: Reference Re Canada Labour Code and State Immunity Act (Can.) , [1992] 2 S.C.R. 50; 137 N.R. 81, per La Forest, J., at 91 [S.C.R.].

[180]

The present case requires careful consideration of Schreiber supra., Walker , supra and Friedland , supra. and this Court to determine whether either or both of those cases decide whether the Kapoustins' claim is one for "personal injury" within the meaning of in s. 6(a). If the issue has been decided by the prior decisions it would seen unneccessary for the Master to depart from these and other earlier authorities

[181]

On examining Walker, and Friedland ,the Respondent observed that apart from these two decisions and Schreiber, supra., there was precious little on the Canadian legal landscape that assists in determining the meaning of "personal injury" in s. 6(a). Unlike the separate claim in these two law suits where plaintiffs rely on the "commercial activity" exception to state immunity in s. 5 of the State Immunity Act , the exception in s. 6(a) was created by the statute and has no common law

ancestry to inform the meaning of the statutory exception: Jaffe v. Miller , supra, at 756, 764-65 [O.R.]. This section seems to have attracted virtually no attention. [182]

Had the jurisprudence on s. 6(a) stopped at Walker , supra, the Plaintiffs would, for the purposes of this proceeding, have stopped at merely the non-physical consequences of the personal injury claims and would have been on strong ground. McKinlay, J.A., did refer in Wlaker, to "merely" physical injury and said that personal injuries under s. 6(a) "could include" non-physical injuries. Possibly, as has been noted by other authorities, had Walker suffered his mental distress, emotional upset, or restriction of his liberty in Canada, the court may well have refused to give effect to the sovereign immunity claim. The present instance brfore the Bar contains facts circumstances that fall within the ambit of that very exception that had been absent in Walker supra., the mental distress and emotional upset was suffered by the plaintiffs Nicholas, Tatiana, Tracy and Robert in Canada and unlike Walker, the restriction of liberty of Kapoustin, while not occuring in Canada, has an alleged causation and connection to be found in Canada and if not directly then at least vicareously responsible are the alleged May, July and December 1995 slander and libel in the Letter of Request coming out of Canada and the R.C.M.P. in British Columbia.

[183]

However, the case law does not stop at Walker, supra. In Friedland , supra, the plaintiff sued the United States claiming that torts committed by the United States had caused him injury, including damage to his reputation, emotional upset, and personal embarrassment. The plaintiff did not allege physical injury. The United States moved unsuccessfully to dismiss the action claiming sovereign immunity, although later successful on appeal.

[184]

In Friedland , supra, the plaintiff relied on the exception to sovereign immunity set out in s. 6(a) of the State Immunity Act . He maintained that he had suffered "personal injury" in the form of damage to his reputation, emotional upset, and personal embarrassment. Like the Kapoustins Freidland's injuries had occurred in Canada and as the Kaposutins he contended that the allegations of non-physical personal injury brought him within thee ambit of s. 6(a), Friedland relied heavily on the observations of McKinlay, J.A., in Walker , supra. cited above. The appeal court rejected that submission stating, at paragraph 25: "In our view, s. 6(a) does not assist Friedland . The obiter statement of McKinlay, J.A., in Walker at p. 510, that 'the scope of personal injury covered by s. 6 ... could include mental distress, emotional upset and restriction of liberty' does not mean that s. 6 extends to mental distress or emotional upset in all cases. Otherwise, a party could invoke s. 6(a) merely by claiming damages for alleged mental distress or emotional upset, an interpretation that would expand the exception far beyond its intended scope and render the doctrine of sovereign immunity ineffective. We agree with counsel for the appellants [the United States] that the 'personal injury' exception refers primarily to physical injury and that s. 6(a) extends to mental distress and emotional upset only in so far as such harm arises from or is linked to a physical injury. This interpretation is consistent with the generally accepted international understanding of the "personal injury" exception to sovereign immunity." (Emphasis added)

[185]

The above passage from Friedland , supra, while not conclusve is a part of the ratio. Friedland's claim that the United States was not immune from suit on his claims for damage to his reputation, emotional upset, and personal embarrassment failed entirely because of the court's interpretation of s. 6(a). That interpretation was essential to the decision of the court, and that interpretation is essential here in two ways. Is the physical impariment and disabilities of Nicholas and Tatiana connected to the alleges causation; their mental conflict and emotional upset? Did alleged damage to the Kapoustins' reputation injure their commercial activities and cause them damage or loss of their property or its value?

[186]

The "personal injury" exception to state immunity in the English legislation is virtually identical to s. 6(a). The English courts have not directly addressed the meaning of the phrase " personal injury" in their legislation, two decisions, that turned on other issues, accepted without analysis that "personal injury" could include non-physical injury such as mental stress or depression: AlAdsani v. Kuwait , [1995] N.L.O.R. No. 2626, at paras. 11, 43, 44 (Q.B.), online: QL ( NLOR), affd. (1996), 107 I.L.R. 536, at 544 (per Stuart-Smith, L.J.), 549- 50 (per Ward, L.J.) (C.A.);

Kuwait v. Fevzi , [1999] E.W.J. No. 3450 (C.A.), online: QL (EWJ) (application for leave to appeal). [187]

The American legislation contains a "personal injury" exception to state immunity and then lists several torts and other actions that are not subject to that exception. The American legislation has received substantial judicial scrutiny, and at least one case has accepted that personal injuries can include non-physical injuries: Persinger v. Islamic Republic of Iran (1984), 729 F.2d 835 (D.C. Cir.), per Bork, J., for the majority, at 843, per Edwards, J., dissenting, at 843-44.

[188]

The "personal injury" exception was considered at some length by the International Law Commission in 1983, less than one year after the enactment of the State Immunity Act : S. Sucharitkul, "Jurisdictional Immunities of States and their Property" in Yearbook of the International Law Commission, 1983 , vol. II (New York: United Nations, 1985) 25, UN Doc. A/CN.4/363. The report conceded such the exception was in its infancy on the international stage. The reach of that exception was described, at 38: "... This area covers the liability of a state ... to pay damages or monetary compensation in respect of an act or omission attributable to the state, resulting in personal injury (physical damage) to a natural person ... In common law jurisdictions such causes of action may be included under the heading of tortious liability. For the purposes of jurisdictional immunity, they may be characterized as a non-commercial tort. In civil law and other jurisdictions, a similar heading may be entitled civil responsibility for physical damage to persons resulting in bodily harm, personal injuries or death. ..."

[189]

A review by the commission of various legislative treatments of the exception, including Canadian legislation, the report continued at 44: "... The area under consideration covers physical damage to the person which may cause death or disability or other bodily harm. ..."

[190]

In proposing a draft article that would encompass the personal injury exception to sovereign immunity, the report stated at 45: "... The area under review unequivocally covers 'personal injury', including loss of life or physical injury to the person as well as 'damage to property', including loss or total destruction of tangible property. It is clear from the type of physical damage inflicted upon the person or property that the cause of action could arise from any activities undertaken by a foreign state ... within the state of the forum. Damage to reputation or defamation is not personal injury in the physical sense, nor can interference with contract rights or any rights, including economic or social rights, be viewed as damage to tangible property."

USA v. Friedland (1999), 128 O.A.C. 201 (CA) International Law - Topic 2204 [191]

Sovereignty - Incidents of - Immunity - Waiver - The U.S. (Environmental Protection Agency) obtained judgment in Colorado against Friedland - The U.S. then obtained an ex parte Mareva injunction in Ontario to restrain Friedland from selling certain shares - The U.S. had undertaken to compensate Friedland in damages for any losses suffered if the injunction was wrongfully granted or if the U.S. did not prevail - The injunction was dissolved - Rather than seeking an inquiry on the undertaking, Friedland filed a statement of defence and counterclaim seeking damages in tort from the U.S. and the individual E.P.A. lawyers - The U.S. and lawyers moved to dismiss the counterclaim on the basis of sovereign immunity - The trial judge dismissed the application on the ground that (1) the U.S. waived immunity by submitting to the jurisdiction of the court under s. 4(2) of the State Immunity Act and (2) waived immunity by commencing the ex parte proceeding for the injunction (s. 4(4 )) - The Ontario Court of Appeal allowed a U.S. appeal and dismissed the counterclaim - The U.S., by the undertaking, submitted only to the court's jurisdiction to inquire under the undertaking, not to the court's jurisdiction to entertain a tort claim by Friedland by way of counterclaim - As for s. 4(4), the counterclaim was outside of or independent of the state's

claim, so there was no waiver of immunity under s. 4(4) - There was also no submission to jurisdiction under s. 6(a) or (b) absent physical injury to the person or physical harm to or destruction of property. International Law - Exceptions Personal Injury Related to Commercial Activity [192]

Sovereignty - Incidents of - Immunity - Exceptions - Proceedings relating to commercial activity of foreign state - Acta gestionis - In Ferguson v. Arctic Transportation Ltd. (1995), 101 F.T.R. 16 (TD) the plaintiff sued the defendant for damages for injuries suffered while on a barge which was transiting the Panama Canal - The Panama Canal Commission was in control of the defendants' vessels while they were transiting the Canal - The defendants sought to add the Commission as a third party - The Commission asserted that it was part of a foreign state government - The State Immunity Act, s. 5, provided that a foreign state was not immune from the jurisdiction of the Canadian courts "in any proceedings that relate to any commercial activity of the foreign state" The Federal Court of Canada, Trial Division, held that the activities of the Commission, as they were relevant for the purposes of this case, were commercial in nature

Personal Injury Tort Argument Personal Injury The "personal injury" exception to sovereign immunity was considered by the International Law Commission and contemplates physical injury. The report of the Australian Law Reform Commission, Foreign State Immunity (Report No. 24) (Canberra: Australian Government Publishing Service, 1984) took the same view. The Commissioners said, at 68: "... Rather than attempt to list comprehensively all of the torts for which immunity should remain, it seems simpler to follow the majority of overseas models and exclude recovery for other than physical injury, and loss or damage to tangible property. ... It is necessary to proceed cautiously in this area, a need which justifies denying recovery against foreign states under the proposed tort provision involving solely economic loss. Where the economic loss is parasitic on physical injury, recovery will be available on ordinary tort principles. Accordingly, it is recommended that the proposed Australian provision on torts allow recovery only for death, personal injury or loss or damage to tangible property." (Emphasis added) [193]

These international authorities were before the court in Friedland , supra, and influenced its interpretation of "personal injury" in s. 6(a). The Respondent believes it is entirely appropriate to refer to these international authorities when giving meaning to a statute like the State Immunity Act .

[194]

There is support for the interpretation of "personal injury" adopted in Friedland , supra, in the French version of s. 6(a): "L'État étranger ne bénéficie pas de l'immunité de juridiction dans les actions découlant: a) des décès ou dommages corporels survenus au Canada; ..." (Emphasis added) The French text literally provides that the foreign state enjoys no sovereign immunity in claims related to "bodily injury": P.-A. Crépeau, ed., Private Law Dictionary and Bilingual Lexicon , 2d Ed. (Cowansville, Qc.: Yvon Blais, 1991). The word "corporel", as applied to claims for compensatory damages is well-known in the civil law of Quebec. The Civil Code of Quebec , S.Q. 1991, c. 64, lists three categories of compensable harm that may arise from delictual responsibility, these being "corporel, moral ou matériel" (arts. 1457, 1607 C.C.Q.). "Corporel" has been interpreted to mean physical injury to the body. Purely non-physical injuries are captured by the term "moral": see Michaud v. Quebec (Attorney General) , [1998] R.R.A. 1065, at paras. 20-22 (Que. Sup. Ct.); Joncas v. Sept-Iles (Town) , [2000] J.Q. No. 5191 (Sup. Ct.).

[195]

The English and French versions of a federal statute are equally authoritative: Charter , s. 18; Manitoba Language Rights Reference , [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, at

774-75 [S.C.R.]. Where the meaning of the words in one version of a statute is broader than the meaning that can be given to the words in the other version of the statute, the task is to find a meaning that is shared by both versions: R. v. Hinchey (M.F.) and Hinchey (B.A.) , [1996] 3 S.C.R. 1128; 205 N.R. 161; 147 Nfld. & P.E.I.R. 1; 459 A.P.R. 1; 111 C.C.C.(3d) 353, at 1157-58 [S.C.R.]; P.-A. Côte, The Interpretation of Legislation in Canada , 3rd Ed. (Toronto: Carswell, 2000), at 326-28; R. Sullivan, ed., Driedger on the Construction of Statutes , 3rd Ed. (London: Butterworths, 1994), at 221. [196]

The English "personal injury" appears to be broader and more ambiguous than the French "dommages corporels". While "personal injury" might mean non- physical injuries, "dommages corporels" speaks more clearly to physical injury, physical injury a shared meaning of the two versions of the statute. There is also some support for interpreting "personal injury" as meaning physical injury by its combination in s. 6(a) with the word "death". The two read in combination connote physical harm to the person. In R. v. McCraw , [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47; 66 C.C.C.(3d) 517; 7 C.R.(4th) 314, at 523-24 (C.C.C.), the term "bodily harm" in the phrase " death or serious bodily harm" was said to include non-physical injury. In reaching that interpretation, however, the court placed heavy reliance on the definition of bodily harm found in a provision in the Criminal Code . That definition clearly included non-physical harm. The plaintiffs claims meet both requirements.

But what of Causation (Act or Agency by whichh an effect is produced) ? [197]

The reversal of onus in respect of a causation issue is an accepted remedial procedure. As Sopinka J. wrote in Snell v. Farrell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289 at 299: "... If I were convinced that defendants who have a substantial connection to the injury were escaping liability because plaintiffs cannot prove causation under currently applied principles, I would not hesitate to adopt one of these alternatives. ..."

Tort Personal Injury - Future Earning Capacity [198]

Personal injury - Impairment of earning capacity - The minor plaintiff, now 8 years of age, developed Diabetes Type II allegedly in a 1997 allegedly a psychosomatic result of the emtional distress and metal conflect he experience - The plaintiff's parents, Michael and Tracy claim general damages for impairment of future earning capacity - The plaintiff can never fully recover from his injuries as a result of the alleged incidents and is therefore permeantly disabled or imparied lessening his employability.

Tort Nicholas Lost Years The course of the English jurisprudence on the question of lost years has had, as may be expected, an influence on the related legislation in Canada, particularly in Alberta. See e.g.: Flint v. Lovell , [1934] All E.R. 200 (C.A.), Rose v. Ford , [1937] 3 All E.R. 359 (H.L.), Benham v. Gambling , [1941] 1 All E.R. 7 (H.L.), Oliver v. Ashman , [1962] 2 Q.B. 210; [1961] 3 W.L.R. 669; [1961] 3 All E.R. 323 (C.A.), Pickett v. British Rail Engineering , [1979] 1 All E.R. 774 (H.L.), Gammell v. Wilson; Furness v. Massey (B. & S.) , [1981] 1 All E.R. 578 (H.L.). [199]

In Oliver v. Ashman , supra, the headnote accurately summarizes the judgment of the Court of Appeal and is in the following terms:

[200]

"In assessing damages for personal injuries involving loss of a period of expected life, loss of earnings during that period should not be valued as a separate head of damage, but, whether the injured person is living or has died, the damages for his loss of expectation of life should be assessed at the conventional sum (in the region £200 sterling) which should be regarded as covering all the elements of the lost expectation, including the opportunity of enjoying what would have been earned during the lost period ." (Emphasis added.)

[201]

To this I would add the eloquent words of Holroyd Pearce, L.J., where he says at p. 332:

[202]

"Thus the courts have decided that lost wages during the lost years can only be taken into account as one of the threads in the variegated tapestry of life. When the tapestry is severed there is but one sum recoverable in respect of that severance. What is lost is an expectation, not the thing itself. The House of Lords have laid down that on an objective and artificial valuation, the sum at which the loss of expectation is to be assessed must be a moderate one on the scale indicated in Benham v. Gambling ."

[203]

In Pickett v. British Rail Engineering , supra, the House of Lords was faced with what was termed a "hard case". In that case, the plaintiff was seriously injured in an accident. He brought action and obtained judgment but only for the lost income during his reduced life span, not for other years beyond that. He appealed the award and then died. It was a hard case because the plaintiff had obtained judgment and any fatal accident relief, ordinarily available to his dependents had merged with the judgment. The House of Lords provided relief by overruling Oliver v. Ashman , but only insofar as holding that a living plaintiff could recover damages for loss of earning during the lost years.

[204]

The problem of "lost years" was revisited by the House of Lords in Gammell v. Wilson; Furness v. Massey (B. & S.) , [1981] 1 All E.R. 578 (H.L.). In that case, Lord Edmund-Davis said at page 584: "... For it is impossible to distinguish in legal principle between a claim in respect of shortened expectation of life on the one hand and in respect of shortened expectation of working life on the other."

[205]

As the learned authors in Personal Injury Damages in Canada , supra, wrote at p. 390: "Most explicit of all is the British Columbia legislation, which precludes 'damages in respect of expectancy of earnings subsequent to the death of the deceased which might have been sustained if the deceased had not died'. Less explicit, though equally effective it seems, are those Acts which limit compensation to 'actual financial loss'."

Torts - Choice of law - Torts affecting the person - Claims for contribution between tortfeasors Torts - Choice of law - Torts affecting the person - Jurisdiction Torts - Choice of law - Torts affecting the person - Rule in Phillips v. Eyre - The infant plaintiff Nicholas Kapoustin at the age of 5 was diagnosed with Type II Diabetes after having a suffered a long period of severe emotional anxiety, mental anguish and distress. The injury occurred in British Columbia - its antecedent occurred in a foreign jurisdiction and the plaintiffs mother and father brought their action in his province of residence - The plaintiffs assert that they would be deprived of a legitimate juridicial advantage if forced to litigate outside the province. The British Columbia Court of Appeal has held in similar circumstances that the British Columbia courts had jurisdiction to hear the action - the Supreme Court of Canada has upheld this decision in that the substantive law of the place where the injury occurred (lex loci delicti) is applied to determine liability [see: (infant saskatchawan case)] Torts - Choice of law - Torts affecting the person - Jurisdiction Torts - Choice of law - Torts affecting the person Rule in Phillips v. Eyre -Injury and death - Body injuries - Mental Degenerative Diseases - In March 1997, the then 67 year old plaintiff, Tatiana Kap, slipped into a state of metal disorientation, and severe loss of her short term memory. Medical tests in British Columbia failed to reveal any physiological cause, family members attributed the condition as the result of her fear, mental anguish, emotional distress and anxiety the result of the alleged slander or libel and threats of harm against her son Michael. The affidavit of Kap alleges demands of money were made by officials of the Defendant Bulgaria to Mrs. Kap and himself whenever they attempted to come into contact with their son. - The mental condition of Mrs. Kap rapidly deteriorated as the alleged defamation and attempts at extortion continued until Mrs. Kap was reduced to a state of dementia.- Later test in the United States revealed that Mrs. Kap had developed or had a previous had an undiagnosed mental degenrative disease that allegedly had been exacerbated by her mental

distress and emotional anguish and fear. The injury occurred in British Columbia - its antecedent occurred in a foreign jurisdiction and the Mrs. Kap's husband, daughter and son have brought their action in her province of residence - The plaintiffs assert that they would be deprived of a legitimate juridicial advantage if forced to litigate outside the province. The British Columbia Court of Appeal has held in similar circumstances that the British Columbia courts had jurisdiction to hear the action - the Supreme Court of Canada has upheld this decision in that the substantive law of the place where the injury occurred (lex loci delicti) is applied to determine liability [see: (infant saskatchawan case)] Tort Law - Perosal Injury - Loss of Future Earnings Nicholas [206]

Côté, J.A., for a majority of a panel in Galand Estate v. Stewart , [1993] 4 W.W.R. 205; 135 A.R. 129; 33 W.A.C. 129 (C.A.), observed that the claim in a case like this is for the present loss of the ability to earn , which is very real and has financial consequences. The trial judge saw the claim there as one for a future loss, whereas the statutory requirement that the loss be "actual" would limit claims to "what is real as opposed to what is prospective". He cited O'Shea Estate v. Litle (1989), 93 N.S.R.(2d) 416; 243 A.P.R. 416 (C.A.) to that effect. The difficulty with that distinction is that a loss can be very real and exist in the present even though it will not be fully realized until some time in the future. An analogy would be a claim by an estate for loss of future rentals in respect of rental property destroyed by a tortfeasor. The damage in that case would be very real, or "actual" because the property is destroyed, even though the valuation of that property requires an examination of its likely future use, as indeed does the valuation of most property.

[207]

That said, one must accept that people often use the term "actual" to describe something about the here and now, as opposed to future events. More often, however, it seems to me that they use the term to describe something real, as opposed to something notional or fictive. Which sense should I apply? Better, why should I adopt the narrower sense?

Tort Actions -Multiple Tortfeasors - Right of Province [208]

In Margetts v. Timmer (1999), 244 A.R. 114 (CA); 209 W.A.C. 114 [\Case Law\Personal Injury\17.htm

[209]

Abuse of legal procedure - Maintenance and champerty - General - Two of several plaintiffs and one of two defendants in actions for damages for personal injuries following an automobile accident entered into "Mary Carter" settlement agreements -The settling defendant paid the settling plaintiffs a definite sum - In return, the settling plaintiffs assigned to the settling defendant their rights against the non-settling parties - The non-settling defendant argued that an assignment of a cause of action in tort for personal injury was contrary to the laws of champerty and maintenance and was unenforceable - The Alberta Court of Appeal affirmed a motions judge's decision that rejected the argument - See paragraphs 21 to 32.

Argument Personal Injury, Third Party Action and Commercial Activities [210]

In Counsel for the Commission argues, however, that even if the activity in which the Commission was engaged is commercial in nature, s. 5, still, does not apply because the proceeding in this court is a personal injury action. It is argued that s. 5 is only intended to cover commercial-type claims (e.g. the breach of a trading agreement). I have not been persuaded by that argument. The action, as between the defendants and the Commission, is not a personal injury claim. It is a claim for indemnification from the Commission for any damages which the defendants might be called upon to pay the plaintiff. The defendants allege negligence by the Commission, its servants or agents, in the inspection of the "AMT Transporter" (now called the "Arctic Tarsuit"), prior to its transit of the Panama Canal, and in its movement through the Canal. [see footnote 3] A third party claim is an independent and separate claim from the main action in the context of which it is commenced. It stands on its own. I would not characterize the defendants proposed third party claim as a personal injury action.

[211]

Even if the defendants' third party claim was characterized as a personal injury action, I still do not think it would fall outside the purview of s. 5. Section 5 states that immunity is lost with respect to " any proceedings that relate to any commercial activity". It does not say that the proceedings have to be "commercial proceedings". The claim in this case, albeit arising as a result of personal injuries sustained by a former Panama Canal pilot, is a proceeding that relates to the commercial activity in which the Commission was engaged. That is sufficient for the purposes of s. 5.

[212]

Counsel for the Commission argues, however, that even if the activity in which the Commission was engaged is commercial in nature, s. 5, still, does not apply because the proceeding in this court is a personal injury action. It is argued that s. 5 is only intended to cover commercial-type claims (e.g. the breach of a trading agreement). I have not been persuaded by that argument. The action, as between the defendants and the Commission, is not a personal injury claim. It is a claim for indemnification from the Commission for any damages which the defendants might be called upon to pay the plaintiff. The defendants allege negligence by the Commission, its servants or agents, in the inspection of the "AMT Transporter" (now called the "Arctic Tarsuit"), prior to its transit of the Panama Canal, and in its movement through the Canal. [see footnote 3] A third party claim is an independent and separate claim from the main action in the context of which it is commenced. It stands on its own. I would not characterize the defendants proposed third party claim as a personal injury action.

[213]

[9] Even if the defendants' third party claim was characterized as a personal injury action, I still do not think it would fall outside the purview of s. 5. Section 5 states that immunity is lost with respect to " any proceedings that relate to any commercial activity". It does not say that the proceedings have to be "commercial proceedings". The claim in this case, albeit arising as a result of personal injuries sustained by a former Panama Canal pilot, is a proceeding that relates to the commercial activity in which the Commission was engaged. That is sufficient for the purposes of s. 5.

Opening Argument The Present Cases - Personal Injury [214]

It was against this background that the present cases arose. The rule in McLean v. Pettigrew strictly, holds that a British Columbia plaintiff can sue both a British Columbia defendant and a foreign defendant in British Columbia under the laws of that jurisdiction for damages resulting from a personal injury that occurred outside the province. The principles as enunciated in its earlier decisions are followed by, the Ontario Court of Appeal in Gagnon (supra), under the present circumstances before the Bar it is incumbent on this court to respond to the prayer originally appearing in the reasons of Henry, J., in Ang v. Trach and repeatedly reiterated in subsequent cases.

[215]

The Master is dealing with legal issues having an impact in more than one legal jurisdiction, the Master is not really engaged in interest balancing but in a structural problem. While that structural problem arises here in a provincial setting, it is instructive to consider the matter first from an international perspective since it is, of course, on the international level that private international law emerged.

[216]

On the international plane, there exists the relevant underlying reality of the territorial limits of law under the international legal order. The underlying postulate of public international law is that generally each state has jurisdiction to make and apply law within its territorial limit. Absent a breach of some overriding norm, other states as a matter of " comity" will ordinarily respect such actions and are hesitant to interfere with what another state chooses to do within those limits. Moreover, to accommodate the movement of people, wealth and skills across state lines, a byproduct of modern civilization, they will in great measure recognize the determination of legal issues in other states. And to promote the same values, they will open their national forums for the resolution of specific legal disputes arising in other jurisdictions consistent with the interests and internal values of the forum state. These are the realities that must be reflected and accommodated in private international law.

[217]

However, that knife can be said to cut both ways.

[218]

The earlier 19th century English cases, such as Phillips v. Eyre , were alive to the fact that these are the realities and forces to which courts should respond in the development of principles in this area. By the turn of the century, however, the English courts adopted a positivistic rule-oriented approach that has since seriously inhibited the development of rational principles in this area; see Morguard , supra, for an illustration of this in a different context. It is to the underlying reality of the international legal order, then, that we must turn if we are to structure a rational and workable system of private international law. Much the same approach applies within a provincial system with the caveat that these internal rules have their own constitutional imperatives and other structural elements.

[219]

All of this is simply an application to "choice of law" of the principles enunciated in relation to recognition and enforcement of judgments in Morguard , supra. There this court had this to say, at p. 1095: "The common law regarding the recognition and enforcement of foreign judgments is firmly anchored in the principle of territoriality as interpreted and applied by the English courts in the 19th century; see Rajah v. Faridkote , supra. This principle reflects the fact, one of the basic tenets of international law, that sovereign states have exclusive jurisdiction in their own territory. As a concomitant to this, states are hesitant to exercise jurisdiction over matters that may take place in the territory of other states. Jurisdiction being territorial, it follows that a state's law has no binding effect outside its jurisdiction. " "Modern states, however, cannot live in splendid isolation and do give effect to judgments given in other countries in certain circumstances. ... This, it was thought, was in conformity with the requirements of comity, the informing principle of private international law, which has been stated to be the deference and respect due by other states to the actions of a state legitimately taken within its territory."

[220]

As Morguard and Hunt also indicate, the courts in the various states will, in certain circumstances, exercise jurisdiction over matters that may have originated in other states. And that will be so as well where a particular transaction may not be limited to a single jurisdiction. Consequently, individuals need not in enforcing a legal right be tied to the courts of the jurisdiction where the right arose, but may choose one to meet their convenience. This fosters mobility and a world economy.

[221]

To prevent overreaching, however, courts have developed rules governing and restricting the exercise of jurisdiction over extraterritorial and transnational transactions. In Canada, a court may exercise jurisdiction only if it has a "real and substantial connection" ( a term not yet fully defined) with the subject matter of the litigation; see Moran v. Pyle National (Canada) Ltd. , [1975] 1 S.C.R. 393; 1 N.R. 122; Morguard , supra; and Hunt , supra. This test has the effect of preventing a court from unduly entering into matters in which the jurisdiction in which it is located has little interest. In addition, through the doctrine of "forum non conveniens" a court may refuse to exercise jurisdiction where, under the rule elaborated in Amchem , supra (see esp. at pp. 921, 922, 923), there is a more convenient or appropriate forum elsewhere.

[222]

The major issue that arises in the two case is this: once a court has properly taken jurisdiction, what law should it apply? Obviously the court must follow its own rules of procedure; it could not function otherwise; see Chaplin v. Boys , supra. What is procedural is usually clear enough though at times this can raise difficult issues. In the present case, for example, the parties have raised a question of appilicable proedures for service ex juris of judicial and extra judicial documents. Whether Rule 11, Rules of the Court applies over the Defendant's own Declarations to the Hague Convention. The Responent shall deal with that issue later.

[223]

The more common issue is the "choice of law" problem, and the principal issue in these appeals, namely, what is the substantive law that should be applied in considering the present cases?

[224]

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". As is the present instances of these proceedings there are of course situations, 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. Difficulties may also arise where the wrong directly arises out of some transnational or interprovincial activity. There territorial considerations may become muted; they may conflict and other considerations may play a determining role. [225]

In these proceedings, though the parties may, before and after the wrong was suffered, have travelled from one country to another, the defining activity that constitutes the wrong had its consequences wholly within the territorial limits of one province, British Columbia. That being so and, barring some recognized exception, to which possibility the Respondent may turn later, that as Willes, J., pointed out in Phillips v. Eyre , supra, at p 28, "civil liability arising out of a wrong derives its birth from the law of the place [where it occurred], and its character is determined by that law". In short, the wrong is governed by that law. It is in that law that we must seek its defining character; it is that law, too, that defines its legal consequences.

[226]

Thus far the Respondents arguments are framed to favouring the "lex loci delicti" in theoretical terms. But the approach responds to a number of sound practical considerations. 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. In our modern world of easy travel and with the emergence of a global economic order, chaotic situations would often result if the principle of territorial jurisdiction were not, at least generally, respected. Stability of transactions and well grounded legal expectations must be respected. Many activities within one state necessarily have impact in another, but a multiplicity of competing exercises of state power in respect of such activities must be avoided.

[227]

Leaving aside the British practice, which itself is giving increasing deference to the "lex loci delicti", the practice of most states until recently favoured exclusive reference to the "lex loci". This was the case, as well, in the United States. This is attested to in Babcock v. Jackson (1963), 12 N.Y.2d 743, where Fuld, J., stated, at p. 746: "The traditional choice of law rule, embodied in the original Restatement of Conflict of Laws (§ 384), and until recently unquestioningly followed in this court ... has been that the substantive rights and liabilities arising out of a tortious occurrence are determinable by the law of the place of the tort." Similarly Australia has bypassed British precedents by adopting the "lex loci delicti" as the rule governing the choice of law in litigation within Australia; see Breavington v. Godleman (1988), 80 A.L.R. 362 (H.C.).

[228]

There may be room for exceptions but they would need to be very carefully defined. It seems to me self evident, for example, that State A (Bulgaria) has no business in defining the legal rights and liabilities of citizens of State B (Canada) in respect of acts in their own country, or for that matter the actions in State B (Canada) of citizens of State A (Bulgaria), and it would lead to unfair and unjust results if it did. What is really debatable is whether State A, or for that matter Province A, should be able to do so in respect of transactions in other states or provinces between its own citizens or residents. Forum Shopping

[229]

McLean v. Pettigrew, supra., has its place and may well be applicable here in adjudicating on wrongs committed in another country for our courts to apply our own law, subject to the wrong being "unjustifiable" in the other country. There is some principled justification here, in this court's defining the nature and consequences of an act done in another country. At first blush this idea may seem to fly against the territoriality principle. However, in the instance case there mitigating factors in favor of this approach. and the problem of proof of foreign law has now been

considerably attenuated in light of advances in transportation and communication, as Lord Wilberforce acknowledged in Chaplin v. Boys . And as he further indicated (at p. 1100), one of the ways in which this latter problem can be minimized in practice is by application of the rule that, in the absence of proof of foreign law, the "lex fori" will apply. Thus the parties may either tacitly or by agreement choose to be governed by the "lex fori" if they find it advisable to do so. McLean v. Pettigrew , supra. Applied the law of the forum when the action complained of was not actionable under the law of the place of the wrong. [230]

What then can be said of the double actionability rule along the lines adopted in England in Chaplin v. Boys ? The "lex loci delicti" rule appears as the governing law. However, because a rigid rule on the international level could give rise to injustice, as in the present circumstances, the courts retain discretion to apply Canadian law to deal with such circumstances.

[231]

When appling the "lex loci delicti" rule as the rule for defining the obligation and its consequences, the requirement appears to be under the English rule that the wrong must also be a tort when committed under English law seems to me to be related more to jurisdiction than choice of law.In the case of Red Sea Insurance Co. v. Bouygues S.A. et al. , supra, the Privy Council used the discretion to deal with a contract under the law of the place where the contract was made rather than the law of the forum. However, given the fact that the jurisdiction of Canadian courts is confined to matters in respect of which there is a real and substantial connection with the forum jurisdiction, I seriously wonder whether the requirement that the wrong be actionable in that jurisdiction is really necessary. The fact that a wrong would not be actionable within the territorial jurisdiction of the forum if committed there might be a factor better weighed in considering the issue of "forum non conveniens" or, on the international plane, whether entertaining the action would violate the public policy of the forum jurisdiction. Certainly where the place of the wrong and the forum are both in Canada, the application of the " forum non conveniens" rule should be sufficient there is a limited role, if any, for considerations of public policy in actions that take place wholly within Canada.

Personal injury - The Ontario Court of Appeal discussed the meaning of the expression " personal injury" as found in s. 6(a) of the State Immunity Act - See paragraphs 27 to 57. Torts - Jurisdiction - Torts occurring outside jurisdiction Torts - Choice of law - Rule in Phillips v. Eyre - In XXXX the infant plaintiff was injured in a motor vehicle accident in Saskatchewan between his father and the defendant Jensen - The infant and his father were from British Columbia - Jensen was from Saskatchewan - The defendant father was served in British Columbia - The plaintiff would be deprived of a legitimate juridicial advantage if forced to litigate in Saskatchewan (one year limitation period for infants and need to prove gross negligence by gratuitous passenger) - The British Columbia Court of Appeal held that the British Columbia courts had jurisdiction to hear the action - The Supreme Court of Canada affirmed that British Columbia courts had jurisdiction, but that Saskatchewan's substantive law applied to determine liability - See paragraphs 73 to 90. Lucas (Litigation Guardian Of) v. Gagnon [232]

In addition to the argument that the provinces law governs on the ground that the "lex loci delicti" was applicable, the appellant maintained that, in any event, Quebec law was the applicable law by virtue of Quebec's no- fault scheme. Since I have already decided that the "lex loci delicti" should govern, it would be unnecessary to enter into a discussion of the second argument, were it not for the fact that counsel for the respondent took a different view of the effect of Quebec law, in particular having regard to Quebec's new Civil Code .

Practice - Adding Parties - Personal Injury [233]

Parties - Adding or substituting parties - Adding or substituting crown defendants - Circumstances when allowed - The plaintiffs sued the foreign defendants for personal injury. In 1997 Robert Kap

brought a personal injury action in the Supreme Court of British Columbia against the Defendant Bulgaria. Kap now seeks to join his law suit with that of the Plaintiffs Michael, Tracy and Nicholas and to add Tatiana Kap.

Criminal Intent - Personal injury' - Defamation: Arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity; ... "Section V - Definitions ..... [19]to 'personal injury' only if caused by an offence: arising out of the conduct of your business, excluding advertising, publishing, broadcasting or telecasting done by or for you." (emphasis added) [20] for "personal injury" (a) "... if done by or at the direction of the insured with knowledge of its falsity ... (or) (c) Arising out of the wilful violation of a penal statute. ..." "7. 'Occurrence' means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. "8. 'Personal injury' means injury, other than 'bodily injury', arising out of one or more of the following offenses; ... d. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or ogranization's goods, products or services; or ..." [25] the publication of libel and slander material should be interpreted as broadly as possible to allow for an encompassing definition of "publication". The definition of "publishing" should be read as narrowly as possible, so as to limit the circumstances in which coverage may be denied. This would permit the word "publish" to have a similar meaning to the words with which it is associated. [26] In considering the exact meaning of "publishing" two decisions of courts in the United States are of interest. The phrase "advertising, broadcasting and telecasting" was considered in interpreting an exclusion clause similar to the one here under review. Both decisions concluded that the word in issue "advertising" denoted a widespread and public distribution, because of the presence of the other two words. See: Fax Chemical Co. v. Great American Insurance Co. , 264 N.W.2d 385; Playboy Enterprises v. St. Paul Fire and Marine Insurance (1985), 769 F.2d 425 (Applicants' authorities Tab 6 and Tab 7.) [13] The applicants submit that the allegations against them in the Citiclaims action include intentional interference with contractual relations which allegation is within the coverage provided by the Policy of Insurance under "property damage". [14] While the respondent has not argued that the intentional interference with contractual relations is not property damage, it does say that such coverage is excluded by provisions of the insurance policy. In particular it submits that clause 1a of Coverage A. requires that "property damage" be caused by an "occurrence" and this term is defined in clause 7 of Section V as meaning "an accident". The Oxford English Shorter Dictionary defies "accident" as "1. an event; esp. an unforseen contingency; a disaster ... 2. chance; fortune ...." This would indicate that the coverage in the policy extends only to results of the insured's actions which are intended and unpredictable. [15] The allegation in clause 14 of the Statement of Claim is that the said (publication) "was calculated by the defendants to cause damage to the plaintiffs and to sabotage current and future contractual relations ..." . [16] Further in clause 21 of the Statement of Claim the allegation is that " the defendants ... did wilfully interfere with the contractual relations of the plaintiffs. ..." ( emphasis added). Clause 2(a) of the policy dealing with exclusions states that insurance does not apply to property damage expected or intended from the standpoint of the insured. [17] The allegations in the Statement of Claim that the actions of the applicants were "calculated" and "wilful" suggests that they were intentional and therefore outside of the coverage provided by the respondent under property damage. It is therefore clear from a review of the pleadings that the obligation to defend the applicants with respect to this allegation does not arise. [18] The applicants' next submission is that the duty to defend arises as a result of the allegation of libel and defamation in the Citiclaims action and this is said to be covered by the protection afforded for " personal injury". "Personal injury" is defined in clause 8 of section V as meaning injury arising out of (d) oral or written publication of material that libels or slanders a person. Did the acts of the applicants cause damage arising out of the business of the insured which constitutes advertising, publishing, broadcasting or telecasting so that it is excluded under 1.b. 2) of Coverage B.?

3. Did the applicants have knowledge of the falsity of the statements? 4. Did the applicants wilfully violate a penal statute? Finally, the rule expressed by the latin term noscitur a sociis states that the meaning of a word is revealed by words with which it is associated. This rule would influence the interpretation placed on the word "publishing", where it exists within in the phrase "advertising, publishing, broadcasting and telecasting ..." The other words in this phrase denote communication with a broad audience. [13] For a period of approximately one year the plaintiff was not able to obtain alternate employment. She received employment insurance benefits until May of 1997 when she started her own day-care. [14] The plaintiff in her affidavit sworn September 20, 1999, says: "This has been the most stressful three years of my life. I am working three part-time jobs and only until recently have been making approximately $1,500 month. My credit is ruined; I cannot borrow $500.00. I never get a regular pay cheque. When a parent owes me money for Daycare, I get to hear all the reasons why they can't pay me this month. In the meantime, I am getting disconnection notices from Hydro and B.C. Telephone." Personal Injury Schaar v. Laing Prop. Corp. (2000), 265 A.R. 175 (QB) [234]

Summary:

[235]

In November 1994, the 72 year old plaintiff slipped and fell while shopping at the defendant's mall. The plaintiff tripped over the curled portion of a carpet outside one of the mall stores. The fall exacerbated the pain the plaintiff suffered from pre- existing health problems (previous motor vehicle accident injuries, osteoarthritis, degenerative disc problems and permanent partial disability from a total hip replacement over one year prior to the fall).

Duncan Estate v. Baddeley (1999), 231 A.R. 330 (QB) [236]

16 year olds - Injury and death - General damage awards - Loss of earning capacity - -His estate claimed for loss of future earning capacity - argued that the appropriate method of assessment was to 1) d

Torts History Historical Highlights Of Choice Of Law Rule In Tort [237]

The genesis of the existing Canadian rule for the determination of choice of law for torts arising outside a court's territorial jurisdiction is the seminal case of Phillips v. Eyre , supra. There the plaintiff brought an action in England for assault and false imprisonment against the defendant who at the time of the torts was governor of Jamaica. The acts of which the plaintiff complained were part of a course of action taken by Jamaican authorities to suppress a rebellion. Later the governor caused an act of indemnity to be passed absolving all persons of liability for any unlawful act committed in putting down the rebellion. Much of the judgment given by Willes, J., is devoted to questions concerning whether a colony like Jamaica could constitutionally enact such a statute; these the court answered in the affirmative. But the major import of the case relates to the final objection of the plaintiff that, assuming the colonial statute was valid in Jamaica, it could not have the effect of taking away a right of action in an English court. Willes, J., replied that the objection rested on a misconception of a civil obligation and the corresponding right of action, which later he stated is only an accessory to the obligation and subordinate to it. As in the case of contract, the general rule was that " the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law " (emphasis added) (at p. 28). The substantive law, he affirmed, is governed by the law of the place where the wrong has been committed. That, of course, would be Jamaica because the torts were wholly committed there.

[238]

Willes, J., then went on to say that English courts are said to be more open to admit actions founded on foreign transactions than those of other European countries, but he added, at p. 28, that there are restrictions (e.g., trespass to land) that exclude certain actions altogether, and "even with respect to those not falling within that description our courts do not undertake universal jurisdiction " (emphasis added). He then immediately continued with the following frequently cited passage, at pp. 28-29: "As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England... . Secondly, the act must not have been justifiable by the law of the place where it was done." The later point requiring the trier of the issues to ascertain the lawful or unlawful character of the act according to the laws of the foreign juridiction.

[239]

In this passage, Willes, J., appears to commingle the law dealing with what we would today call jurisdiction and choice of law. The first rule is strictly related to jurisdiction as is evident from its context as just related. The second rule we would normally think of as dealing with choice of law, which it is apparent earlier remarks was the place of the wrong, the "lex loci delicti". It was not, however, necessary for Willes, J., to engage in this type of modern analysis. All he was doing was expressing a rule of double actionability to permit suit in England; see Chartered Mercantile Bank of India, London and China v. Netherlands India Steam Navigation Co. (1883), 10 Q.B.D. 521 (C.A.), at pp. 536-537.

[240]

The law was not to remain in this form. In Machado v. Fontes , [1897] 2 Q.B. 231 (C.A.), (an interlocutory appeal heard in a summary way by two judges), Willes, J.'s, judgment was read in a rather wooden manner to mean something quite different from what he, in the Respondents view , had intended. In that case the plaintiff brought action in England for libel alleged to have been published in Portuguese in Brazil. Though the report leaves us to surmise, the names of the parties would indicate that they were Brazilian and, the language being Portuguese, the libel would seem to have taken place there. The court interpreted Willes, J.'s, language as meaning that an act committed abroad could be brought in England in the same way as if it had taken place in England, so long as it was not justified or excused under the law of the place where it was committed. It was, in other words, actionable under English law even if not actionable where it was committed if it was "unjustifiable" there, for example, if it constituted a criminal act there.

[241]

The approach taken in Machado v. Fontes was subjected to considerable judicial and academic criticism; see Professor Moffat Hancock's "Case and Comment"on McLean v. Pettigrew , supra, (1945), 23 Can. Bar Rev. 348. In particular so far as Canadian cases are concerned, Viscount Haldane in Canadian Pacific Railway Co. v. Parent , [1917] A.C. 195 (P.C.), at p. 205, early expressed some reservations about it. Argument has been brought and the Respondent would for his part, have thought the question of whether a wrong committed in Brazil by a Brazilian against another Brazilian gave rise to an action for damages should be within the purview of Brazil, and that its being made actionable under English law by an ex post facto decision of an English court would constitute an intrusion in Brazilian affairs which an English court, under basic principles of comity, should not engage in. In the alternative argument has been brought and the common law has been, as the Respondent could understand it, the approach of Willes, J. is accepted where the parties were in that instance, both English nationals or domiciled in England and there is some support in English cases for that measure of intervention; see Chaplin v. Boys , [1969] 2 All E.R. 1085 (H.L.), per Lord Hodson, at p. 1094, and Lord Wilberforce, at p. 1104; see also Lord Denning in the same case in the Court of Appeal, [1968] 1 All E.R. 283 (C.A.), at pp. 289-290. The Respondent adds, parenthetically that it could well be argued (though the facts were not conducive to that possibility) that, unlike a motor vehicle accident, the tort of libel should be held to take place where its effects are felt, but the court simply assumed that the place of the tort was Brazil.

[242]

In England, Machado v. Fontes was ultimately overruled by the House of Lords in Chaplin v. Boys , supra. There the plaintiff, a passenger on a motorcycle, was injured through the negligence of the defendant whose car had hit the motorcycle. The plaintiff and defendant were British soldiers

stationed in Malta. In upholding the action, their Lordships adopted a test of double actionability. Substantive British law would be applied if the conduct was actionable both in England and in the place where the conduct occurred, with a residual discretion to depart from the rule where justice warranted. Here the conduct was actionable both in England and in Malta, and there was no ground for a discretion to be exercised. The majority thus determined that the rule in Phillips v. Eyre was a double actionability test. While the ratio of the case is difficult to define with precision (see Red Sea Insurance Co. v. Bouygues S.A. et al. (1994), 174 N.R. 241 (P.C.)), the summary of the result set forth in the well-known text of Dicey and Morris, Dicey and Morris on the Conflict of Laws (11th Ed. 1987), at pp. 1365-1366, has been generally accepted: [243]

"Rule 205(1) As a general rule, an act done in a foreign country is a tort and actionable as such in England; only if it is both actionable as a tort according to English law, or in other words is an act which, if done in England, would be a tort; and actionable according to the law of the foreign country where it was done. "(2) But a particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and the parties."

[244]

Nonetheless it was on the insecure foundation of Phillips v. Eyre as interpreted in Machado v. Fontes that the existing Canadian law was erected by this court's 1945 decision in McLean v. Pettigrew . There, a driver and his gratuitous passenger, both domiciled in Quebec, had a car accident in Ontario, and the passenger sued the driver in Quebec. Under Ontario law, the claim would not have been actionable. It would, however, have been actionable in Quebec had it occurred there. Applying the prevalent English law, the court found that since the tort was actionable in Quebec, and the driver's conduct, though not actionable in Ontario, was prohibited under the Highway Traffic Act of that province, it was not "justifiable" in Ontario. It, therefore, upheld the plaintiff's action under Quebec law.

[245]

The law as enunciated in McLean v. Pettigrew has remained the basic rule in Canada ever since. However, its fundamental weaknesses began to be revealed in a series of Ontario cases beginning in the 1980s. The first requiring discussion is Going v. Reid Brothers Motor Sales Ltd. (1982), 35 O.R.(2d) 201 (H.C.). There the plaintiffs were seriously injured in a collision with the defendant's vehicle in Quebec owing to the negligence of the defendant. All the parties resided in Ontario. In an action in Ontario, Henry, J., held that the plaintiffs were entitled to recover damages in accordance with Ontario law despite the fact that the no-fault scheme in Quebec, where the accident took place, extinguished any action in respect of bodily injuries arising out of the accident. Had there been no breach of Quebec law of any kind the action would not have been maintainable in Ontario; see Walpole v. Canadian Northern Railway Co. , [1923] A.C. 113 (P.C.). However, in Going , the defendant had been in breach of the Quebec Highway Traffic Code . Thus the action was not "justifiable" in Quebec so, following the rule in McLean v. Pettigrew , the plaintiffs could recover under Ontario law. Henry, J., noted that the effect was that the defendants, who had no relationship with the plaintiffs apart from the accident, were deprived of the protection of the law accorded them in Quebec where the action occurred; moreover, he added, the rule encouraged forum shopping. Had either the British rule in Chaplin v. Boys , supra, or the American rule (which applied the proper law of the tort), been in effect, that would not have been the case. Respondent notes in passing that in this and the cases that followed, reference is made to rules in other countries, but in none of these cases was the rule approached on the basis of Canadian constitutional imperatives.

[246]

In Ang v. Trach (1986), 57 O.R.(2d) 300 (H.C.), even more strongly underlines the deficiencies of the rule in McLean v. Pettigrew . There Ontario residents who were involved in a motor vehicle accident in Quebec with a Quebec resident were held entitled to sue the latter despite the fact that a Quebec resident must surely expect to be governed by Quebec law in such circumstances. As Henry, J., observed, the rule, by applying the law of the forum as to liability and assessment, in essence constitutes an extraterritorial extension of the law of the forum. The situation in Going was at least supportable since the parties were all Ontario residents. In Henry, J.'s, view, the law of the place of the tort, or the proper law (i.e., the place having the most substantial connection with the tort) a concept which has been developed in the United States, would be more appropriate.

[247]

Henry, J.'s, prayer was answered by the Ontario Court of Appeal, at least to the extent to which it could do so, in Grimes v. Cloutier , supra, and Prefontaine Estate et al. v. Frizzle; Cuddihey et al. v. Robinson et al. (1990), 38 O.A.C. 22; 71 O.R.(2d) 385 (C.A.). In effect what the court did in the latter two cases was to confine McLean v. Pettigrew to its particular facts. In other situations, it held, the rule of double actionability set forth in Dicey and Morris following Chaplin v. Boys , supra, should be followed. Accordingly, in Grimes v. Cloutier , it dismissed the action of an Ontario resident against a Quebec resident for personal injuries suffered in an automobile accident in Quebec. Since under the Quebec no-fault scheme no action existed in respect of the accident, no action could be brought in Ontario. The same rule was applied in Prefontaine Estate v. Frizzle where a Quebec resident sued an Ontario resident in respect of an accident in Quebec.

Tort Fraud Tort - Fraud and Misrepresentation - Negligence Misrepresentation - What constitutes misrepresentation - General - Plaintiffs became the exclusive distributor to Canada and elsewhere for the Bulgarinan governments National Institute for Infectious and Parasictis Diseases ("NCIPD") - the Defendants commercial activties included manufacturing vaccines or phamaceutical and provding private label products and services to the Plaintiffs- Bulgaria provided information for the Plaintffs consideration prior to the signing of a number of different agreement - In 1995 and 1996 Bulgaria unilaterally, without adeqaute cause terminated the agreements and withdrew earlier represenations it made the Plaintiffs - The commerical activities in or connected to the province as a result failed - Plaintiffs law suits claim against Bulgaria for negligent misrepresentation respecting: (1) research and development forecasts; (2) competency and honesty of research representation; (3) collectibility of accounts receivable; (4) fitness of, facilities and manfacturing computer accounting system; and (5) interference by Bulgaria with the Plaintiff's business. Tort - Fraudulent Misrepresentation Statutory Assumption - Burden of Proof - Proof in alternative - Plaintiffs claim Defendant privately, publicly and in documents deliberately made misrepresentations as to the quality of its technological and manufacturing capabilities and resources. The Defendant maintained that the quality of its pharmaceutical and other medical products products could be brought to Canadian standards with investment in its existing facilities.

Tort Argument Tort - Misrepresentation Were One Or More Of The Alleged Representations Made By P.C.I. To Dornan, If So, Were They Wrong And If So, Were They Negligently Made? There is evidence of fraudulent misrepresentation. This was alleged by the plaintiffs in the Statement of Claim andis now pressed in this Factum. The action for negligent misrepresentation was first recognized by a decision of the House of Lords in Hedley Byrne & Co. v. Heller & Partners Ltd. , [1963] 2 All E.R. 575; [1963] 3 W.L.R. 101; [1964] A.C. 465 (H.L.). The headnote reads: "If, in the ordinary course of business or professional affairs, a person seeks information or advice from another, who is not under contractual or fiduciary obligation to give the information or advice, in circumstances in which a reasonable man so asked would know that he was being trusted, or that his skill or judgment was being relied on, and the person asked chooses to give the information or advice without clearly so qualifying his answer as to show that he does not accept responsibility, then the person replying accepts a legal duty to exercise such care as the circumstances require in making his reply; and for a failure to exercise that care an action for negligence will lie if damage results ---." Martland, J., adopted this statement in the Carman Construction Ltd. case (supra) at 201-202 [D.L.R.]. See also BG Checo International Ltd. v. British Columbia Hydro and Power Authority , [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241; 99 D.L.R.(4th) 626 per Iacobucci, J., at 616-617 [D.L.R.]. In the case of Queen (D.J.) v. Cognos Inc. , [1993] 1 S.C.R. 87; 147 N.R. 169;

60 O.A.C. 1; 99 D.L.R.(4th) 626, Iacobucci, J., at 643 [D.L.R.] set out five general requirements for a finding of negligent misrepresentation: "(1) there must be a duty of care based on a 'special relationship' between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making said misrepresentation; (4) the representee must have relied, in a reasonable manner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted." There is, inter alia, the various agreements and contracts with a varity of state officials and institutions; the profession publications and public appearances in Canada, the United States, Japan, South Africa and South Korea of official representetives for the state on the behalf of the Plaintiffs prove there exited a "special relationship" between the Plaintiffs and institutions of the government of Bulgaria. The alleged misrepresentations: (i) Pro-forma [106] It was reasonably foreseeable to the Defendant that the Plaintffs would rely on its institutional representations. The Plaintiffs are business men and women, not scientists or members of any scientific institutions. To assist the plaintiffs in deciding whether or not to enter into commercial activities, materials were put together and presented by scientific representatives of the Defendant. The standard of care that Bulgaria. owed to the plaintiffs is stated by Iacobucci, J., in the Queen case at 651 [D.L.R.]: "The applicable standard of care should be the one used in every negligence case, namely, the universally accepted, albeit hypothetical 'reasonable person'. The standard of care required by a person making representations is an objective one. It is a duty to exercise such reasonable care as the circumstances require to ensure the representations made are accurate and not misleading: ---." His Lordship went on to quote from L. Klar, Tort Law (1991), at p. 160 where Professor Klar said: "An advisor does not guarantee the accuracy of the statement made, but is only required to exercise reasonable care with respect to it. As with the issue of standard of care in negligence in general, this is a question of fact which must be determined according to the circumstances of the case. Taking into account the nature of the occasion, the purpose for which the statement was made, the foreseeable use of the statement, the probable damage which will result from an inaccurate statement, the status of the advisor and the level of competence generally observed by others similarly placed, the trier of fact will determine whether the advisor was negligent." Bulgarie had a duty of reasonable care to be accurate and not misleading when making commercial and scientific representations circumstances. Kapoustin did not agree when signing a contract or other agreements for the plaintiffs that he was going to limit or waive any rights which may accrue to him or his companies benefit by reason of any negligent misrepresentations made in precontractual discussions. See LaForest and McLachlin, JJ., in the BG Checo case (supra), at 583-584 [D.L.R.]. In this case the agreements are irrelevant to the Plaintiffs' actions for negligent misrepresentation and as Iacobucci, J., pointed out the Cognos decision at 664 [D.L.R.], there is no statement that Bulgaria is not assuming responsibility for representations made to the Plaintiffs during the precontractual discussions. (v) Facilities Plaintiffs allege that the facilities and reaserch work of the Defendant over time proved inadequate and precluded the Plaintiffs from entering the market in Canada and the United States as quickly as had been agreed upon by the parties, the Plaintiffs as a result had difficulty in competing with others in the marketplace. As stated in the affidavit of Kapoustin the agreements provided a concept that had the Plaintiffs securing sub-distributors and strategic partners, on the other side of this agreement Bulgaria would have its scientific, medical and other institutions conduct the needed research and documentation , the Defendant producing, packaging and storing the final products at its various facilities for the plaintiffs. The facilities were available for inspection and had been visited at various times prior to finalizing any agreement. Assurances by Ministry of Health officials and facilities scientific and production management of the Defendant governemnt were sufficiently reassuring to the plaintiffs that the adequacy of the facilities were not the subject of much if any discussion prior to the transactions being concluded.

[127] Bulgaria was at all times responsible to conduct the reasearh and maintain its own facilities. Officals of the Ministry of Health represented their facilities were adequent for the scintific and commercial needs and market plans of the Plaintiffs and that Bulgaria had committed to upgrade or add to the existing facilities as were represented by them. There was no commitment or representation made to provide facilities equivalent to competitors in Canada or the United States, instead the parties considered that the facilities had to meet only the minimum standards due to the unique nature of certain of the Bulgraian products and the price advantages to be had in producing in Bulgaria. This minimum standard was represented to the Plaintiffs and their customers in British Columbia, and the evidence of Ada Gogova, Michael Kapoustin and various documents support that there were such representations made or implied with respect to the facilities. [248]

In Kripps v. Touche Ross & Co. (1997), 33 B.C.L.R. (3d) 254 (C.A.) the court held that a plaintiff alleging a negligent misrepresentation need not prove their decision or action would not have been made but for the misrepresentation. This is where there may have been a number of reasons of which the misrepresentation was only one. There are many examples of a statutory assumption of detrimental reliance once a misrepresentation is shown. The Court of Appeal in Sidhu Estate v. Bains (1996), 25 B.C.L.R. (3d) 41 (C.A.) held that upon establishing a misrepresentation which might reasonably lead to a claimed loss the onus shifts to the defendant to prove the misrepresentation was not in fact relied upon.

Tortt Causation Misrepresentations Tort Actions [249]

[Canlin v. Thiokol Fibres Canada Ltd. (1983), 40 O.R. (2d) 687 (C.A.) at 691].

[250]

Wilkinson v. Security Nat. Ins. Co. (1999), 249 A.R. 282 (QB)

[251]

Summary:

[252]

Wilkinson and Mason had worked at the same company. Mason sued Wilkinson for defamation, alleging that Wilkinson had said, inter alia, that Mason had stolen from the company and misused company funds. Wilkinson's home insurance policy provided coverage for liability for damages for personal injury arising out of libel or slander.

Tort Negligennce Fulton v. Globe and Mail (1997), 207 A.R. 374 (QB)), the Alberta Court of Queen's Bench stated that negligent research, absent publication, gave rise to no legal consequences in that no damages could flow from unpublished negligent research - Accordingly, negligent research without more was not actionable - See paragraphs 18 to 23. Torts - Negligence - Care Negligence - Standard of care - Particular persons and relationships - Manufacturers -A press operator suffered a blow to the head while performing maintenance on a press - He sued the manufacturer in negligence, asserting that a guard on the press had crashed down - The operator had not established that the manufacturer, in designing the guard, created a foreseeable risk of harm or that it did not use reasonable efforts to reduce the risk - The manufacturer did not know or have reasons to know of any dangers - There was no duty to warn where the danger was not reasonably foreseeable -

Tort a claim which is framed alternately as negligence and an intentional tort, a claim which is framed alternately as negligence and an intentional tort, PCS Inv. Ltd. v. Dom. of Can. Gen. Ins. (1994), 153 A.R. 187 (QB) Summary:

The applicants provided property replacement services to the insurance industry. The applicants were sued by a competitor for defamation and intentional interference with contractual relations. The applicants sought an order declaring that their insurer was obligated to defend the action; that the insurer repudiated the obligation and had no further right to conduct the defence; and that the insurer was compelled to bear the cost of the defence conducted by solicitors selected by the applicants. The Alberta Court of Queen's Bench allowed the application in part. [11] The pleadings in the Citiclaims action against the applicants or defendant allege as follows: "14. The said publication of the altered Dominion letter was libelous, defamatory, malicious, irresponsible and was calculated by the defendants to cause damage to the plaintiffs and to sabotage current and future contractual relations between Citiclaims and insurance customers and to bring the plaintiff Citiclaims and the plaintiff McLaughlin into disrepute in the eyes of right thinking members of the insurance and business community. (Emphasis added.) "21. Further, the defendants or any of them did wilfully interfere with the contractual relations of the plaintiffs and their customers with the intent of causing damage to the plaintiffs by inducing a breach or termination of existing contracts by customers or potential customers of the plaintiffs and the plaintiffs have suffered damages as a result of the wrongful interference with contractual relations by the defendants or any of them."

Tort Breach of Contract - Unjust Enrichment - Restitution Unjust enrichment - General - Juristic reason for enrichment - Plaintiffs became the exclusive distributor to Canada and elsewhere for the Bulgarinan government National Institute for Infectious and Parasictis Diseases ("NCIPD") - the Defendants commercial activties included manufacturing vaccines or phamaceutical and provding private label products and services to the PlaintiffsBulgaria provided information for the Plaintffs consideration prior to the signing of a number of different agreement - In 1995 and 1996 Bulgaria unilaterally, without adeqaute cause terminated the agreements and withdrew earlier represenations it had made the Plaintiffs - The commercial activities in or connected to the province as a result failed - The Plaintiffs paid institutions of the government of Bulgaria to condcut scientifc and clinical research and provide the results to the Plaintffs - Bulgaria was provided research materials purchased by the Plaintiffs in Canada and provided the Defendant on condition of receiving the results in return. No results were forth coming and the plaintiffs seek recovery from Bulgaria on the basis of unjust enrichment since Bulgaria was being enriched by not returning the money and property of the Plaintiffs and not undertaking the research and clinical agreed to or in the alternative for withholding those result that it was obliged to provide the plaintiffs in the Province. The results are the property of the Plaintiffs.

Tort Interferance With Contracts Tort - Interference - Undo Influnence S005454Unjust enrichment - General - Juristic reason for enrichment - Plaintiffs became the exclusive distributor to Canada and elsewhere for the Bulgarinan government National Institute for Infectious and Parasictis Diseases ("NCIPD") - the Defendants commercial activties included manufacturing vaccines or phamaceutical and provding private label products and services to the PlaintiffsBulgaria provided information for the Plaintffs consideration prior to the signing of a number of different agreement - In 1995 and 1996 Bulgaria unilaterally, without adeqaute cause terminated the agreements and withdrew earlier represenations it had made the Plaintiffs - The operation as a result failed - He implemented a year-end volume rebate for nondesignated farm customers - Petro-Canada advised Dornan that any expense involved was his responsibility - Petro-Canada terminated the Marketer operation when it became unsuccessful - The farm customers claimed their rebates - PetroCanada paid them and sought recovery from Dornan on the basis of unjust enrichment since Dornan was being enriched by not making payments that he was obliged to make - The Alberta Court of Queen's Bench allowed Petro- Canada's claim because there was no juristic reason why Dornan should be enriched - See paragraphs 189 to 191.

Torts - Interference with economic relations - Conspiracy - General - [See Torts Topic 5098 ]. Torts - Interference with economic relations - Conspiracy - What constitutes a conspiracy Dornan Petroleum Inc. v. Petro-Can. (1996), 189 A.R. 241 (QB) Summary: Frederick Dornan was agent for Petro-Canada in Wetaskiwin. Petro-Canada terminated the agency in Wetaskiwin and asked Dornan to become Edmonton Wholesale Marketer. Dornan accepted and signed agreements including a Marketer Agreement. The operation was unsuccessful. Petro-Canada terminated the agreements. This led to the following actions: ( 1) in Action No. 9203-26148, Dornan personally and Dornan Petroleum Inc. sued Petro-Canada for fraudulent and negligent misrepresentation, breach of contract, monies improperly withheld, personal injury to Dornan and punitive damages; (2) in Action No. 9303-04437, Petro-Canada sued Dornan Petroleum Inc. for conversion of monies properly belonging to Petro-Canada and for monies paid by Petro-Canada to Dornan Petroleum customers on the basis of unjust enrichment or allegedly because Dornan Petroleum wrongfully held itself out as Petro-Canada's agent in making certain commitments to those customers. Petro-Canada also sued Dornan on a personal guarantee; (3) in Action No. 930318327, Petro-Canada sued Dornan Petroleum for monies owing under a sublease of property in Fort Saskatchewan. Petro-Canada also sued Frederick and Donna Dornan on their personal guarantees respecting the sublease. Dornan Petroleum, Frederick Dornan and Donna Dornan counterclaimed in damages for breach of contract and for return of certain monies allegedly belonging to them.

Tort Practice - Contracts -Interpretation Interpretation - General principles - Intention of parties - The Alberta Court of Queen's Bench interpreted a Marketer Agreement and held: "The fundamental rule of construction is that the intention of the parties must be ascertained from the language they have used. In doing so I must look to the factual situation in which the contract was made. The contract as a whole must be looked to, its object considered and the wording used interpreted to bring the clause in question into harmony with the other provisions. The words used must be given their plain and ordinary meaning, unless to do so would lead to an absurd result. Where special meanings are given the words as in Article 12.2(c)(i) then those meanings must be applied." - See paragraphs 162 to 182.

Argument Contracts Rule of Construction [172] The Defendant Bulgaria had determined in contracts with the Plaintiffs to not to offer, sell or supply product to any final customers. The fundamental rule of construction is that the intention of the parties must be ascertained from the language they have used. In doing so the Court must look to the factual situation in which the contracts were made. The contract as a whole must be looked to, its object considered and the wording used interpreted to bring the clause in question into harmony with the other provisions. The words used must be given their plain and ordinary meaning, unless to do so would lead to an absurd result. Where special meanings are given the words then those meanings must be applied. [173] Only in the case of ambiguity when one is left in real doubt as to the intention of the parties, after applying the other rules of construction, does the rule contra proferentem come into play in an attempt to remove that doubt.That is not the case in the two actions. [174] The exclusive distribution Contract of April 1993, for the purpose of this issue, sets out the terms under which the Plaintffs are granted the exclusive right and license to sell and supply the Defendants products and research service as originating from, inter alio, NCIPD and to do so to a certain segment of the marketplace, in this case non-designated customers of the Defendant Bulgaria in Canada and other exceptions included those in xxxxx as a designated Area. [176] The purchase price of the products from the Defendant was basically under the control of the government.

Tort of Conspiracy Criminal Law - Sentence - Secret commissions [253]

British Columbia - right of recovery - Medical Care Costs - Third Party recovery if litigation of Plaintiffs successful. Nicolas and Tatiana have received support from the Province for their long term health care and the Province is entitled to recovery those costs from the defendants. Illustration of prior Canadian legislation that provides government a direct cause of action to recoup from a third party costs incurred on behalf of another is found in the Canada Shipping Act, R.S.C. 1985, c.S-9, at ss.284-286. Recovery from a ship owner, mutatis mutandis a foreign state. The federal government is accorded a right of action to recover from a ship owner, regardless of fault, the medical expenses paid to treat an illness of a seaman. The aggregate action, after resolution of issues of breach of duty, causation and disease, requires the government to introduce evidence as to cost of health care benefits in respect of those diseases.

Torts - Conspiracy Interference with economic relations - Conspiracy - Pleading - In their statement of claim, the plaintiffs pleaded that the officials and commercial principals of the state defendant conspired with the Canadian defendant to defame the plaintiffs and their companies - In 550433 Alta. v. Stealth Alarms Systems (1998), 234 A.R. 111 (QB) the Alberta Court of Queen's Bench held that a conspiracy claim merged with a defamation claim and did not extend the scope of litigation, as the plea of conspiracy clearly related only to the alleged defamation - As a result, all specialized pleading rules applicable to defamation were also applicable to conspiracy - The scope of discovery or any other pre-trial or trial process was not extended - In some situations pleading conspiracy might extend the scope of the litigation and temper the general rule requiring specificity in pleadings regarding defamation . There the plaintiff was a home security company that claimed its competitor had engaged in a conspiracy "smear campaign" to injure its business interests by defaming the plaintiff to actual and potential customers of the plaintiff's. There plaintiff was able to identify only some of the customers to whom the defendant directed it's "smear campaign"; it therefore wishes to ask the defendant in examinations for discovery about further similar instances of defamation, as the defendant has exclusive knowledge of this. The plaintiff's statement of claim also pleads special damages relating to loss of business earnings. Pleadings in defamation must be specific, that the plaintiff must set out the alleged defamatory statements, to whom they were published and where they were published. The defendant therefore says it is entitled to the specifics of each instance of defamation, of particular sections of the Competition Act upon which the plaintiff will rely, and of the specific damages claimed. In cases where a plaintiff is unable to give particulars of slander because they are not within his knowledge but are within the knowledge of the defendant, the rule relating to strict pleadings is relaxed and the court usually will not strike out the pleading provided the plaintiff has revealed all the particulars in its possession and has set forth a prima facie case relating to the defamation in the pleadings. In the instance before the Bar the Plaintiffs here have established a prima facie case by providing in there second Notice to Admint to the defendant all the instances of defamation within its knowledge and establishing a reasonable foundation to entitle them to later ask the defendants in discovery if they have made similar statements to other people.

4. Plea Of Conspiracy [14] In the proceeding before the Bar the plea of conspiracy will not, in this case, extend the scope of the litigation as it might in some other situations conspiracy extend the scope of litigation and so temper the general rule requiring specificity in pleadings relating to defamation. In this case, however, the plea of conspiracy clearly relates only to the alleged defamation, the conspiracy claim merging with the defamation claim, not extending it. This was made clear in the English Court of

Appeal's decision in Lonrho plc v. Fayed (No. 5) , [1994] 1 All E.R. 188 (C.A.), and recently adopted by Master Funduk in Guccione supra., where Lord Dillon states at pp. 195-196: "In my judgment, if the plaintiffs want to claim damages for injury to reputation or injury to feelings, they must do so in an action for defamation - not in this very different form of action [conspiracy]. Injury to reputation and to feelings is, with very limited exceptions, a field of its own and the established principles in that field are not to be side-stepped by alleging a different cause of action. Justification - truth - is an absolute defence to an action for defamation, and it would, in my judgment, be lamentable if a plaintiff could recover damages against defendants who had combined to tell the truth about the plaintiff and so had destroyed his unwarranted reputation. But that would be the consequence if damages for injury to reputation and injury to feelings could be claimed in a 'lawful means' conspiracy action. To tell the truth would be wrongful." [15] The Master concludes that, where the conspiracy is to injure reputation, the conspiracy claim merges in the defamation claim: "The principle discussed in Fulton and Lonrho plc applies regardless of which kind of conspiracy it is……In addition, where the conspiracy to injure is by defaming the victim the conspiracy claim merges in the defamation claim: Normart Management Ltd. v. West Hill Redevelopment Co. 4 C.P.C.(4th) 64 (Ont. Ct. of Justice - Gen. Div.); Elliott v. C.B.C. , 16 O.R.(3d) 677 (Ont. Ct. - Gen. Div.), aff'd 125 D.L.R.(4th) 534 ( C.A.)." [16] This form of pleading does not extend the scope of discovery or any other pretrial or trial process: in the circumstances here the principle in Lonrho plc applies as the conspiracy is to defame and therefore the tort of conspiracy merges with the tort of defamation. As a result, all specialized pleading rules which apply to pleading defamation also apply to the cause of action based in conspiracy.

Tort Defamation Tort Practice Libel and Slander - negligent research Actions in tort - Libel and slander - When time beings to run -. Background Count I - Tax Department [254]

Mr. Kapoustin is a Vancouver businessman involved in investments in the phamaceutical amd oil and gas industry. From 1991 to sometime until in May, 1995 Mr. Kapoustin and the Plaintiffs British Columbia registered foreign corporation LifeChice International Inc., and its Canadian subsidiary company of LifeChoice Pharmaceuticals Inc., and Bulgarian subsidiary company of LifeChoice International A.D. (Inc. Bulgaria) became commercial involved with government institutions of the Defendant Bulgaria in the defamation action. There were a number of commercial activities related to the business of Mr. Kapoustin in British Colmbia and commercial activities overseen by the Ministry of Health, Republic of Bulgaria and the Ministry of Finance, Republic of Bulgaria. The Defendant and the Plaintiffs worked together on a variety of projects as identified in the evidence of Mr. Kapoustin, Ms. Gogova and Mr. Lukanov. Some of the parties to whom the defamatory words attributed to the Defendant Bulgaria, Ministry of Finanace are alleged to have been addressed had a clear relationship with Kapoustin and the LifeChoice companies in British Columbia and elsewhere, some did not. The Amended Statement of Claim of S004040 in Count I of the defamation action now alleges as follows:

[255] HERE WE NEED TO INSERT THE CRIMINAL ALLEGATIONS OF TAX DEPT. "1. That from on or around July, August, September or October of 1994 and May, June and July 1995 Mr. Kapoustin as managing director of the company LifeChoice International A.D. Bulgaria had stolen 'from the company and had misused company funds'. "2. That on or about November 11, 1994 Mr.Kaposutin made out a fradulent tax declaration, , stole money from Tornado, misused a company credit card and caused the company to misuse certain corporate funds.

"3. That on or about October 1, 1998 Mr. Wilkinson wrote to several shareholders of Tornado to the effect that Mr. Mason had personally profited at the expense of the shareholders of Tornado and that Mr. Mason 'has a bad reputation within the financial community'. "4. That on or about November 26, 1998 Mr. Wilkinson wrote to a third party with whom Tornado was in negotiations, words to the effect that Mr. Mason was a 'con artist' and had used corporate funds for his own personal use. "5. That in November or December, 1998 Mr. Wilkinson said to another party that Mr. Mason had stolen corporate funds and had misused a corporate credit card. "6. That on or about January 24, 1999 Mr. Wilkinson spoke to yet another person words to the effect that Mr. Mason was a rogue."

Argument Tort Defamamtion The Honourable Pearson L.J. in McCarey v. Associated Newspapers Ltd. (No. 2) , [1965] 2 Q.B. 36 (C.A.) laid down a principal with respect to the scope of recovery in an action for libel. Pearson L.J. held that compensatory damages may be payable for injury to feelings, grief and distress which may have been felt, having been spoken of in defamatory terms, and high-handed, oppressive, insulting behaviour which increases the mental pain and suffering caused by the defamation and may constitute injury to the plaintiff's pride and self-confidence. [40] The Society alleged dishonesty in the preparation of false documents. The facts, however, are equally consistent with mistake, lack of direction by the Board, and lack of consistency in the treatment of other employees. The fact is that the Society had no policy or procedure regarding the preparation and submission of the enrolment reports nor with respect to the obtaining of an application of grant monies. [41] Relying on the Wallace decision and applying the facts in the case at bar, I am of the opinion that the Society was not candid, reasonable, honest and forthright with the plaintiff. The Society, in the manner in which it dismissed her, was unduly insensitive. Such character is indicative of bad faith conduct or unfair dealing in the course of dismissal, the inevitable result of which is to the plaintiff humiliation, embarrassment and damage to her sense of self-worth and self-esteem. For these wrongs, the plaintiff is entitled to compensation by way of an addition to the notice period. The notice period, after taking into account the unfair dealing by the defendant in the manner of discharge, should be eleven months. In Clendenning, supra, at 89, Burnyeat, J., states the following: "Punitive damages are only available where the nature of the conduct is such that it is deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. If the misconduct of an employer in dismissing its employee amounts to an independent cause of action causing harm to the plaintiff, the plaintiff may recover aggravated damages. [references omitted]" It is difficult to assertain if the defendants acted in the circumstances of this case, on an honest but mistaken belief that it had just cause to make untru and false statements or was will their conduct proven at trail to be the organized "harsh, vindictive, reprehensible and malicious" and premiditated act that the Plaintiffs allege?.

Tort The Plaintiff's Claims for Defamation Defamation by Hiebert [47] The plaintiff claims that she was defamed by comments made by the Society, either carelessly or with the deliberate intention of discrediting the plaintiff's reputation, exposing the plaintiff to distress, embarrassment, loss of reputation and financial loss. [48] The facts surrounding the alleged defamation are as follows. In April of 1996, the plaintiff applied to the society for travel expenses to attend the Early Childhood Educators of British Columbia ("E.C.E.B.C.") Conference in Vancouver. The Society advanced to the plaintiff $100 on the condition that the plaintiff provide receipts and repay any excess. At no time did the plaintiff mention that there were travel subsidies available from the East Kootenay Branch of E.C.E.B.C. or that she had applied for a subsidy. The plaintiff's explanation is that the provision of travel expenses was a matter between herself and the giver of the financial subsidy.

Libel and Slander - The statement - Actionable statements per se - Words imputing criminal offence Practice -Tort Law Libel and Slander - Topic 6025 Practice - Actions - Concurrent liability in defamation and negligence and other torts -Defendants in two actions applied to strike out some of the pleas in the plaintiff's actions - They argued that all the claims made against them were claims for damages arising from an alleged loss of reputation - They argued that claims for damage to reputation were exclusively governed by the law of defamation and therefore the claims for conspiracy, injurious falsehood, negligent misrepresentation, inducing breach of contract/unlawful interference with economic interests should be struck from the pleadings - A Master of the Alberta Court of Queen's Bench allowed the applications.

Defamation In Haggart Construction Ltd. v. Canadian Imperial Bank of Commerce , [1988] 5 W.W.R. 586 (Alta. Q.B.), the plaintiff alleged that internal reports contained defamatory statements referring to the plaintiff's excessive gambling losses, binge drinking, and flamboyant personal lifestyle. The court held that the statements were subject to qualified privilege. The court set out the general principles of the law of defamation which are equally applicable to this case. In order to prove defamation the plaintiff must prove that a statement identifying the plaintiff to a third person or persons and tending to lower the reputation of the plaintiff was distributed by the defendant. The onus then shifts to the defendant to establish a recognized defence. ( Haggart, supra, at 621). In McKinnon v. Dauphin (1996), 108 Man.R.(2d) 163 (QB) Natural justice - The duty of fairness - When required - The plaintiffs sued the municipality for, inter alia, breach of procedural fairness - denied In Pootlass v. Pootlass (1999), 5 B.C.T.C. 21 (SC)

Defamation In Guccione v. Bell (1998), 229 A.R. 365 (QBM) the Defendants in two actions applied to strike out some of the pleas in the plaintiff's actions. They argued that all the claims made against them were claims for damages arising from an alleged loss of reputation. They argued that claims for damage to reputation were exclusively governed by the law of defamation and therefore the claims for conspiracy, injurious falsehood, negligent misrepresentation, inducing breach of contract/unlawful interference with economic interests should be struck from the pleadings. A Master of the Alberta Court of Queen's Bench allowed the applications.

In Daley v. Golden Child Care Soc., [2000] B.C.T.C. 8 (SC) Libel and Slander The statement - What constitutes defamatory statements - General principles Disparagement of reputation Libel and Slander Practice - Pleadings - Statement of defence - Meaning of defamatory words - The plaintiff claimed that Day made defamatory statements about the plaintiff in a letter in a newspaper - The plaintiff applied to strike out a paragraph in Day's statement of defence on the basis that it did not disclose a defence at law - Day claimed that the statement of defence pleaded a lesser defamatory meaning to the words and statements contained in the letter than the meaning attributed to them in the statement of claim and the lesser meaning in the statement of defence was true - The Alberta Court of Queen's Bench held that the meaning attributed to the statement in the letter in the statement of defence was not defamatory Therefore, the court struck out the paragraph as disclosing no defence at law. Libel and Slander - Topic 6025 Practice (incl. parties) - Actions - Concurrent liability in defamation and negligence - In holding that there could be no concurrent liability in defamation and negligence for damage to reputation, the Alberta Court of Queen's Bench stated that there were sound policy reasons for upholding the integrity of the law of defamation - While the law of defamation reflects a balance of the interests of maintaining free speech while protecting the rights of individuals, the law of negligence is rather concerned with breaches of duties of care - Furthermore, the court should resist expanding loss of reputation claims in the context of publication beyond the law of defamation in that to permit claims in negligence would allow plaintiffs to circumvent defences available in defamation claims - See paragraphs 28 to 30. [4] No statement of defence has yet been filed to this action. [5] The Master in Chambers, in a lengthy written judgment, allowed the application after a careful consideration of the issue of whether it is possible for a plaintiff to advance concurrent claims for defamation for alleged injury to reputation as well as a claim in negligence for allegedly faulty research giving rise to publication of material allegedly causing harm to the reputation of the plaintiff. [6] The law has long recognized that the law of defamation is unique in that it has been developed in the context of the balancing of the interests of maintaining free speech and the right of persons not to have their reputations unfairly sullied. [7] The law has also recognized that defamation and negligence are distinct areas of the law, and attempts to merge the two or attempts at disguising defamation claims under the guise of claims in negligence have been resisted by the courts. [8] In the 1941 decision of Foaminal Laboratories Ltd. v. British Artid Plastics Ltd. , [1941] 2 All E.R. 393, this classical statement of the law appears at p. 399: "... A claim for mere loss of reputation is the proper subject of an action for defamation, and cannot ordinarily be sustained by means of any other form of action, subject to certain recognized exceptions ..." [9] The recognized exceptions are as follows: a. against a banker for refusing to honour a customer's cheque in circumstances where the customer had funds to meet the obligation; b. for breach of promise of marriage; c. where a vendor of real estate, without any fault on his part, failed to take title, and

d. for breach of contract to permit an actress to play a role in a play when such had been advertised to the public. [10] Mr. Weir, representing the appellant/ plaintiff, argues that the Alberta Court of Appeal, in the decision of B.P.I. Resources Ltd. v. Merrill Lynch Canada Inc. and Anderson (1989), 95 A.R. 211 (C.A.), has impliedly accepted that in certain circumstances there may be concurrent claims in defamation and negligence for loss of reputation. [11] In the B.P.I. Resources case, Mr. Justice Harradence said the following at pp. 223-224: "[49] The authority cited by the trial judge for awarding compensatory damages for damage to reputation being claimed otherwise than in an action for defamation is Canlin Ltd. v. Thiokol Fibres Canada Ltd. (1983), 142 D.L.R.(3d) 450 (Ont. C.A.), which was a case involving breach of contract. Damages were awarded for loss of future business which was occasioned by damage to reputation. I agree that, in principle, damages resulting from loss of reputation may be recoverable in a tort action not involving defamation provided, of course, all the elements of the cause of action are proved. [50] A case on point is Foaminal Laboratories Ltd. v. British Artid Plastics Ltd. , [1941] 2 All E.R. 393, at 399-400 (K.B.). As Hallett, J., stated: '... [A] claim for mere loss of reputation is the proper subject of an action for defamation, and cannot ordinarily be sustained by means of any other form of action, subject to certain recognized exceptions ... However, if, as I think, the proposition of counsel for the defendants goes further than that, and if he is saying that a claim for compensation in respect of pecuniary loss cannot be sustained when the pecuniary loss is sustained through a loss of reputation caused through the breach of contract, then I think that he is putting his proposition too high ... [I]f pecuniary loss can be established, the mere fact that the pecuniary loss is brought about by the loss of reputation ... is not sufficient to preclude the plaintiffs from recovering in respect of that pecuniary loss.' "The reasoning is applicable here, assuming liability for pure economic loss for the moment. This is not a case where the tort is actionable per se. The appellant must prove it has suffered a monetary loss." 12] Several comments are in order respecting the status of the B.P.I. decision. [13] Firstly, counsel were not able to point out any express authority for the proposition that concurrent claims in defamation and negligence can stand. Secondly, the decision in B.P.I. Resources is not a decision regarding the law of defamation but rather arises out of unauthorized stock manipulation by an employee of Merrill Lynch Canada. [14] While there was no contractual linkage between the rogue stockbroker and B.P.I. Resources , it can hardly be said that the B.P.I. decision is analogous to the case before me which involves publication in a newspaper of allegedly defamatory material. [15] I do not accept that the B.P.I. Resources decision is authority for the proposition that in the Province of Alberta our Court of Appeal has sanctioned the bringing of concurrent claims in defamation and negligence for damage to reputation. [16] It is significant to note that in the B.P.I. Resources decision Mr. Justice Harradence cites with approval the Foaminal decision and specifically exempts defamation claims from his comments. [18] It is far from clear that, absent publication, there could ever be liability arising from negligent research. Negligent research, absent publication, gives rise to no legal consequences in that no damages can flow from unpublished negligent research. [19] No authority was cited before me that negligent research without more is actionable. Indeed, there is Canadian legal authority holding that the converse is true. [20] In the case of Elliott et al. v. Canadian Broadcasting Corp. et al. (1993), 16 O.R.(3d) 677, Montgomery, J., of the Ontario Court ( General Division), struck out a statement of claim filed on behalf of a number of former Air Force pilots who were offended by the Canadian Broadcasting Corporation airing a program dealing with their participation in Bomber Command during the Second World War. [21] One of the allegations in the statement of claim filed against the CBC in that action involved a claim for negligent research. [22] Mr. Justice Montgomery struck out this portion of the statement of claim on the basis that in reality this was a claim in defamation and not negligence, and that negligent research is not actionable per se.

Tort Practuc Libel and Slander - Concurrent liability in defamation and negligence Practice (incl. parties) - Actions - Concurrent liability in defamation and negligence - The plaintiff brought a defamation action against the defendant newspaper et al. and also claimed damages in negligence, alleging that the defendants conducted shoddy and incomplete research - The defendants successfully applied to strike the negligence portion of the statement of claim on the ground that there could be no concurrent liability in defamation and tort where the claim was for loss of reputation - On appeal, the Alberta Court of Queen's Bench affirmed that there could be no concurrent liability in defamation and negligence for damage to reputation.

Libel and Slander - Defences - Qualified privilege - Loss of - Lack of honest belief or existence of malice Libel and Slander - Defences - Qualified privilege - Public duty - General Libel and Slander -Malice - As a bar to defence of fair comment or qualified privilege - Requirement of express or actual malice - See paragraphs 35 to 37. Defense Malice Qualified Privilege The Respondent considered the applications of qualified privilege that exists where the person making a statement has a social, moral, or legal duty to make the statement, and the person receiving the statement has a social, moral, or legal duty to receive it. This is as an unassailable statement of lawand a principle was expressed in McLoughlin v. Kutasy (1979), 8 C.C.L.T. 105 (S.C.C.). The contention of Respondent is, that qualified privilege is forfeited where there is malice on the part of the person making the statement. Korach v. Moore (1991), 1 O.R. (3d) 275 (Ont. C.A.) and that indirect motives other than a sense of duty will serve of proof as malice and do away with any allegation of qualified privilege: Westbank Band of Indians v. Tomat (6 September 1989), Kelowna Reg. 86-205 (B.C.S.C.). The materials filed disclose a certain degree of malice on the part of many of the persons involved, the R.C.M.P. officer who is alleged to have said Kapoustin "had been convited of molesting children in Canada" is heinous. He provided this information to the Bulgarian authorities who repeated it to anyone who asked and allowed it to be reproducted in when interviewed by the mass media, at the very least, these officials had a social or moral duty to investigate the versacity of outragoeus claims coming from Canada and respond to the desperate efforts of the Plaintiffs to end their slander or libel. Can they be commended for speaking dishonestly? And for using the threat of criminal prosecution litigation which expressly stated by Doornbus, to gain information and repeated by Georgiev and Stoyanov to "pay back" the money they alleged Kapoustin had stolen? Are these "Good faith" disclosures in the public interest or malice and contempt towards the Plaintiffs?. The furtherance of that public interest requires that persons in the position of the police officers and government officials to support the truth and not perpitrate a conspiracy of falsehoods and malicious slander or libel that leads to the needless injury and the destruction of lives in Canada. This Court should respond in good faith to when good faith is present, but not to investigations such as these in evidence before. ATU v. ICTU (1995), 180 A.R. 241 (QB)

Defamation Haight-Smith v. Neden, [2000] B.C.T.C. 610 (SC) Summary: The plaintiff, a retired teacher, sued the defendants alleging defamation, negligence, malice and arbitrary treatment prior to her retirement. The defendants were the school principal, teachers, the superintendent and assistant superintendent, a secretary at the school, a support worker at the school, a custodian at the school, and the school district. The defendants applied to dismiss the action arguing that: the allegations in the statement of claim were beyond the court's jurisdiction and

properly matters to be resolved under the collective agreement; the statements alleged to be defamatory were protected by absolute privilege and/or qualified privilege.

In Sidorsky v. CFCN Com. Ltd. (1998), 216 A.R. 151 (CA); 175 W.A.C. 151, Sidorsky owned several mobile home parks. The defendant television station broadcast reports that Sidorsky and his companies swindled persons by misleading customers into believing they were purchasing mobile homes when, in fact, subsequent documents they signed created only a lease with a virtually worthless option to purchase. Sidorsky and his companies brought a defamation action for damages against the television station and eight employees. The defendants pleaded qualified privilege, justification and fair comment.

In Lougheed v. CBC (1978), 11 A.R. 55 (TD) Tort Law - Pleadings - Particulars - Particulars in specific proceedings - Defamation actions - The plaintiff sued the Canadian Broadcasting Corporation for damages for defamation arising out of the broadcast of a television play - The plaintiff in his statement of claim made general allegations that the television play portrayed the plaintiff in the defamatory manner - The Alberta Supreme Court, Trial Division, allowed the defendant's application for particulars - The Trial Division ordered the plaintiff to supply the defendant with particulars of which parts of the television play defamed him See paragraphs 12 to 51. Torts by and against the Crown - Meaning of " obligation" in the federal Broadcasting Act - The Canadian Broadcasting Corporation was sued for damages for defamation arising out of a broadcast of a television play - The C.B.C. alleged that it could not be sued in tort - The Alberta Supreme Court, Trial Division, interpreted the Broadcasting Act and held that the C.B.C. could be sued in its own name for defamation - The Trial Division stated that "obligation" in s. 40(4) of the Broadcasting Act is not restricted to contractual claims - See paragraphs 3 to 11.

In Goddard v. Day (2000), 276 A.R. 358 (QB), Goddard sued Day for defamation respecting a letter written to a newspaper. Tort - Lible or Slander Defamationa and Conspiracy In 550433 Alta. v. Stealth Alarms Systems (1998), 234 A.R. 111 (QB) the plaintiff sued the defendants, alleging that the defendants defamed it. The defendants sought further and better particulars of defamation in the plaintiff's statement of claim. A Master of the Alberta Court of Queen's Bench, in a decision reported at [1998] A.R. Uned. 442, held that the statement of claim was sufficiently detailed for the defendants to know the case against it and to be able to properly plead to it. The defendants appealed. The Alberta Court of Queen's Bench dismissed the appeal.

Libel and Slander - Topic 6126 Practice - Pleadings - Statement of claim - Setting out slanderous words - The plaintiff sued the defendants in defamation - The defendants sought further and better particulars of defamation in the statement of claim - A Master of the Alberta Court of Queen's Bench held that the statement of claim was sufficiently detailed for the defendants to know the case against them and to plead to it - The Alberta Court of Queen's Bench upheld the Master's decision - A letter from the plaintiff, disclosing further particulars, was deemed to be incorporated in the pleadings - The plaintiff established a prima facie case by providing the defendant with the instances of defamation within its knowledge, (dates, places, speakers and words used to defame it) - The plaintiff established a reasonable foundation to ask the defendants in discovery if they had made similar statements to other people.

Libel and Slander - Topic 6126 Practice - Pleadings - Statement of claim - Setting out slanderous words - The Alberta Court of Queen's Bench stated that "[a]lthough pleadings in defamation, particularly those in libel, have historically been strict in their requirement for specificity, the modern rule is that the court will be

satisfied with pleadings which give sufficient detail to establish that the plaintiff is not merely embarking on a fishing expedition by way of pleadings so general that the particulars of the defamation must be deduced by inference. In cases where a plaintiff is unable to give particulars of slander because they are not within his knowledge but are within the knowledge of the defendant, the rule relating to strict pleadings is relaxed and the court will not strike out the pleading provided the plaintiff has revealed all the particulars in its possession and has set forth a prima facie case relating to the defamation in the pleadings"

Libel or Slander Defences Defences - Justification or truth - General - Weisenberger was dismissed from his executive position at the Winnipeg office of an insurance brokerage business - Weisenberger's employer wrote to its Winnipeg clients "... to advise you that we have discovered that certain irregular and improper premium billing practices have taken place within the Winnipeg Branch Office. They were performed by some former employees." - Weisenberger sued for wrongful dismissal and defamation A Master summarily dismissed the defamation action - A motions judge upheld the summary dismissal - The contents of the letter were true - Alternatively, the employer had a duty to advise its clients that a potential overpayment had been charged and there was no malice, reckless disregard for the truth or bad faith rebutting the qualified privilege - The Manitoba Court of Appeal affirmed the decision.

Libel and Slander - Defences Defences - Qualified privilege - Employment relationship - [See Libel and Slander - Topic 2861 ].

Libel and Slander - Defences Libel and Slander - Defenses Defences - Qualified privilege - Employment relationship - [See Libel and Slander - Topic 2861 ].

Tort Law - Libel and Slander - Concurrent Liability Practice - Actions - Concurrent liability in defamation and negligence and other torts -Defendants in two actions applied to strike out some of the pleas in the plaintiff's actions - In Guccione v. Bell (1999), 239 A.R. 277 (QB) the Defendants argued that all the claims made against them were claims for damages arising from an alleged loss of reputation - They argued that claims for damage to reputation were exclusively governed by the law of defamation and therefore the claims for conspiracy, injurious falsehood, negligent misrepresentation, inducing breach of contract/unlawful interference with economic interests should be struck from the pleadings - A Master allowed the applications - The plaintiff appealed arguing, inter alia, some portion of the pleadings which were struck supported the claim founded in defamation, as well as claims for exemplary or punitive and aggravated damages - The Alberta Court of Queen's Bench allowed the appeal concerning most of the struck out paragraphs of the claims.

Tort Law - Defamation - Concurent Claims Defendants in two actions applied to strike out some of the pleas in the plaintiff's actions. They argued that all the claims made against them were claims for damages arising from an alleged loss of reputation. They argued that claims for damage to reputation were exclusively governed by the law of defamation and therefore the claims for conspiracy, injurious falsehood, negligent misrepresentation and inducing breach of contract/unlawful interference with economic interests should be struck from the pleadings. A Master of the Alberta Court of Queen's Bench, in a decision reported 229 A.R. 365, allowed the applications. The plaintiff appealed. The Alberta Court of Queen's Bench allowed the appeal in part.

Libel and Slander - Topic 6025 Practice - Actions - Concurrent liability in defamation and negligence and other torts -Defendants in two actions applied to strike out some of the pleas in the plaintiff's actions - They argued that all the claims made against them were claims for damages arising from an alleged loss of reputation - They argued that claims for damage to reputation were exclusively governed by the law of defamation and therefore the claims for conspiracy, injurious falsehood, negligent misrepresentation, inducing breach of contract/unlawful interference with economic interests should be struck from the pleadings - A Master allowed the applications - The plaintiff appealed arguing, inter alia, some portion of the pleadings which were struck supported the claim founded in defamation, as well as claims for exemplary or punitive and aggravated damages - The Alberta Court of Queen's Bench allowed the appeal concerning most of the struck out paragraphs of the claims.

Libel and Slander - Topic 6128 Practice - Pleadings - Statement of claim - Defamation - [See Libel and Slander - Topic 6025 ].

Practice - Jury Traial Topic 5103 Juries and jury trials - Right to a jury - Multiple actions or claims - Weisenberger sued his employer for wrongful dismissal and also alleged that the manner of his dismissal constituted defamation Counsel believed that if both claims proceeded to trial, both would have to be decided by a jury - The Manitoba Court of Appeal disagreed - The court stated that "[m]any wrongful dismissal claims include allegations of injured reputation. It would be most unsatisfactory if every such action could be forced to a jury trial simply by the plaintiff combining it with a claim pleading the tort of defamation. ... [T]he transparent device of joining two causes of action in one statement of claim cannot guarantee a plaintiff a jury trial of the wrongful dismissal claim to which he would not otherwise be entitled." - See paragraphs 32 to 34.

5. The Modern Rule Of Pleading In Defamation [17] In Olsen v. St. Martin (1981), 32 A.R. 51 (Q.B. Master) Master Funduk articulated the traditional requirement of pleading defamation as follows: "Defamation actions are one of the few forms of action where strictness in pleading is still insisted on. In a slander action the exact words uttered are a material fact, and accordingly, the exact words alleged to have been uttered must be pleaded." [18] The traditional position was informed by a concern that a vague allegation might become the long, pointy pole of a fishing expedition. The traditional rule also attempted to ensure that the defendant in a defamation action should be given sufficient information to allow the defendant to assess whether it had any type of privilege defence, including the defence of qualified privilege. It might also usefully be noted that even the traditional position, for obvious reasons, tolerated somewhat less specificity in defamation claims based on slanderous statements than on those grounded in libel. [19] In this case, Master Funduk's reasons reflect a contemporary approach to the same issue. [20] I agree with Funduk, Master's, approach in this case. I find support for his view in the comments made by Fruman, J., as she then was, in Rosen , where she states that, provided a reasonable amount of specificity is pleaded, the strict rule relating to pleadings should be relaxed:

"I think I would have been willing to go some way to ease (the plaintiffs') burden if there had been something in the pleadings that indicated to me that the plaintiffs were acting in good faith, were not on a fishing expedition and the defamatory words had actually been published. I might have been prepared to relax the strict rules if a summary of the words had been specified with an indication of the date or times or people by and to whom the communications were made. However, the Amended Amended Statement of Claim provides no specific and deals only with inferences. I, therefore, allow the motion to strike out the Statement of Claim as against the Insurance Crime Prevention Bureau." [21] It will be recalled that in Rosen , the pleading was stated very broadly or generally: "The second defendant has made defamatory statements to various insurers about the plaintiffs, intending to cause and knowing that it was likely to cause insurers to breach contracts they had with the plaintiffs, and inducing and encouraging them to do so." [22] In a later paragraph, additional claims were made: "The defamatory statements are said to be words to the effect that the plaintiffs are liars, arsonists, have committed perjury, have committed arson, have attempted to defraud, are poor risks." ( emphasis added) [23] There is in fact specific authority supporting Fruman, J's, view that the strict rules should be relaxed in cases where the plaintiff has set out a reasonable foundation in the pleadings to establish that it is not on a fishing expedition. Very recently, Master Powers of the B.C. Supreme Court, stated in Benson : "In response, counsel for the respondent relies upon the principle that an exception to that general rule exists where the court is satisfied that the defendant has defamed the plaintiff but the latter, acting in good faith, is unable to particularize the exact words: Brown , supra; Bulkey , supra, Paquette v. Cruji (1979), 26 O.R.(2d) 294 (H.C.); ... "In Paquette , supra, at p. 296, Grange, J., reiterated the fact that allegations of defamation must be strictly pleaded. However, he added the following caveat: 'There are, however, limitations to the strictness of pleading. Our courts have always refused to strike out a claim where the plaintiff has revealed all the particulars in his possession and has set forth a prima facie case in his pleading: see Winnett v. Appelbe et ux. (1894), 16 P.R. (Ont.) 57, and Lynford v. United States Cigar Stores Ltd. (1917), 12 O.W.N. 68. In the latter case Falconbridge, C.J.K.B., refused to strike out a statement of claim wherein the plaintiff had been unable to set forth the exact words in an allegedly defamatory letter which had resulted in loss of empoyment quoting with approval [at p. 69] the words of Odgers, 5th Ed. (1912), at p. 624: "If the plaintiff does not know the exact words uttered, and cannot obtain leave to interrogate before statement of claim, he must draft his pleading as best he can and subsequently apply for leave to administer interrogatories, and after obtaining answers, amend his statement of claim, if necessary."' In this case, I conclude that the plaintiff has revealed all of the particulars in its possession and that it has made out a prima facie case." [24] Paquette was also approved in the Australian case of Lazarus where the court held that, provided the plaintiff could establish a prima facie case of publication, and could verify his assertions that he lacked knowledge of the specific names of the persons to whom the publication was alleged, the court would not strike out his claim for want of particularity and that it would be sufficient for the plaintiff to give the best particulars he could to identify those persons. [25] In this case, the plaintiff has given details of the dates, and places, and speakers, and words used to defame it. This is sufficient detail to establish that the plaintiff is not merely on a fishing

expedition. Without the March 10, 1998 letter, there may not have been sufficient detail, but that letter must be deemed to have been incorporated in the pleadings. [26] Moreover, the plaintiff, having established a prima facie case, i.e., the existence of the defamatory statements made on specified dates to identified recipients by identified makers, the plaintiff is entitled, on discovery, to ask the defendants if they have made similar statements to other people. This would not be a fishing expedition because the plaintiff would have established reasonable grounds - a prima facie case - for inferring that other such similar statements had in fact been made. [27] In addition, the defendants have been given sufficient information so that they can make a determination about whether they have a defence of privilege.

In Scott v. Fulton (2000), 137 B.C.A.C. 77 (CA); Defences - Fair comment What constitutes fair comment - The plaintiff, a Reform Party MP, sued the defendant New Democratic Party MP for damages for defamation which allegedly occurred during a televised debate on the Nisga'a Treaty and aboriginal self- government - The defendant alleged that the impugned words were true or fair comment on a matter of public interest - The British Columbia Court of Appeal held that the trial judge erred in failing to apply the appropriate test in determining whether the statements were fact or comment - Further, because of this error, the judge did not find he needed to view the video tape of the debate to determine the attitude and possible anger expressed by the parties that a lay person viewing the debate might have perceived.

Aggregate Actions Tortfeasors Tort Actions - Aggregate Actions - S005440 [256]

Traditional rules regarding tort based actions- aggregate cause of action- more than one defendant. Where the traditional, individually oriented tort action does not realistically meet the need of a large-scale loss-recovery action, where very substantial numbers of people have been exposed and it is said to have resulted in adverse effects through non-observable means of causation, the aggregate action is intended to provide for relief.

Torts - Joint and concurrent tortfeasors - Joint tortfeasors - Release of one - Effect of Two of several plaintiffs and one of two defendants in actions for damages for personal injuries following an automobile accident entered into "Mary Carter" settlement agreements - The settling defendant paid the settling plaintiffs a definite sum - In return, the settling plaintiffs released the settling defendant for any amount exceeding the amount paid - The non-settling defendant argued that by settling with the settling defendant, one of two joint tortfeasors, the settling plaintiffs have released any claim they may have had against the non-settling defendant - This argument was based on the common law proposition that a release of one tortfeasor released all tortfeasors - The Alberta Court of Appeal affirmed a motions judge's decision that rejected the argument - See paragraphs 21 to 32. [257]

Torts - Joint and concurrent tortfeasors - Contribution between tortfeasors - Settlement by one tortfeasor Two of several plaintiffs and one of two defendants in actions for damages for personal injuries following an automobile accident entered into "Mary Carter" settlement agreements - The settling defendant paid the settling plaintiffs a definite sum - In return, the settling plaintiffs released the settling defendant for any amount exceeding the amount paid - The non- settling defendant argued that the settling defendant could not advance any claim for contribution or indemnity against the non-settling defendant because the settling defendant was never obligated to pay the settling plaintiffs any amount in excess of the settling defendant's percentage of the blame - The Alberta

Court of Appeal affirmed a motions judge's decision that rejected the argument - See paragraphs 21 to 32. [258]

Practice - Right to Jury Multiple actions or Claims Practice Juries and jury trials - Right to a jury - Multiple actions or claims - Weisenberger sued his employer for wrongful dismissal and also alleged that the manner of his dismissal constituted defamation Counsel believed that if both claims proceeded to trial, both would have to be decided by a jury - The Manitoba Court of Appeal disagreed - The court stated that "[m]any wrongful dismissal claims include allegations of injured reputation. It would be most unsatisfactory if every such action could be forced to a jury trial simply by the plaintiff combining it with a claim pleading the tort of defamation. ... [T]he transparent device of joining two causes of action in one statement of claim cannot guarantee a plaintiff a jury trial of the wrongful dismissal claim to which he would not otherwise be entitled." - See paragraphs 32 to 34. Defences - Justification or truth - General - Weisenberger was dismissed from his executive position at the Winnipeg office of an insurance brokerage business - Weisenberger's employer wrote to its Winnipeg clients "... to advise you that we have discovered that certain irregular and improper premium billing practices have taken place within the Winnipeg Branch Office. They were performed by some former employees." - Weisenberger sued for wrongful dismissal and defamation A Master summarily dismissed the defamation action - A motions judge upheld the summary dismissal - The contents of the letter were true - Alternatively, the employer had a duty to advise its clients that a potential overpayment had been charged and there was no malice, reckless disregard for the truth or bad faith rebutting the qualified privilege - The Manitoba Court of Appeal affirmed the decision.

Statement Of Claim Statement of Claim Amendments Start Here...THE ORIGINAL CAUSES OF ACTION PLEADED Tort Practice - Pleadings - Defence of justification It is clear that an Application to strike pleadings under s. 129(1)(a) will only be successful when it is plain and obvious that the pleading cannot succeed. ( Hunt v. T & N plc et al. , [1990] S.C.J. No. 93; 2 S.C.R. 959; 117 N.R. 321)). A defence may be struck if it is either hopeless in fact, or hopeless in law. This matter is based on the proposition that paragraph 5 of the Amended Statement of Defence does not disclose a defence known to law. ( German v. Major (1985), 62 A.R. 2; 20 D.L.R.(4th) 703 (C.A.)). The Alberta Court of Appeal has considered the nature of the cause of action and defence and has indicated that a high standard is required. The question must be beyond doubt that there is no reasonable cause of action. ( Cerny v. Canadian Industries Ltd. et al. (1972), 30 D.L.R.(3d) 462 and Decock et al. v. Alberta et al. , [2000] A.J. No. 419; 255 A.R. 234; 220 W.A.C. 234). The Court must assume that the allegations contained in the Statement of Claim or the Statement of Defence relating to fact are true. It then determines whether those facts disclose a cause of action. As stated previously, it must be plain and obvious that the plaintiff's Statement of Claim, or the defendant's Statement of Defence discloses no reasonable cause of action or no reasonable defence. The plaintiff, or the defendant, as the case may be, is entitled to a broad reading of the pleadings ( Tottrup v. Lund et al. , [2000] A.J. No. 435; 255 A.R. 204; 220 W.A.C. 204.) The parties agree that the traditional rule in Canadian defamation law prevented a defendant from pleading an alternative meaning to an allegedly defamatory statement and then attempting to justify the alternative meaning. Traditionally a defendant was only permitted the defence of justification to the particular meaning ascribed to a statement by a plaintiff ( Turner v. Toronto Star Publishing Corp. , [1990] O.J. No. 2244; 50 C.P.C.(2d) 73).

Subsequent to the Turner decision, this traditional rule has been set aside in favour of a modern approach established by the English Courts. The English Courts had determined that a defendant could plead an alternative, lesser defamatory meaning to an allegedly defamatory statement and then attempt to justify that lesser defamatory meaning ( Polly Peck (Holdings) plc v. Trelford , [1986] Q.B. 1000 and Pizza Pizza Ltd. v. Toronto Star Newspapers Ltd. et al. , [1996] O.J. No. 3227; 14 O.T.C. 321 (Gen. Div.), confirmed, [2000] O.J. No. 228; 128 O.A.C. 369 (C.A.)). It is, however, clear that the alternative meaning pled must also be defamatory. If it is not defamatory, then the pleadings should simply be that the plaintiff was not defamed. To rely on a plea of justification, the meaning attributed to the words used by the defendant must carry with them a separate and distinct sting from that relied on by the plaintiff. ( Cruise v. Express Newspapers plc , [1999] Q.B. 931 (C.A.)). [16] This determination made by the British Courts has also been adopted by the Canadian Courts. In Asper et al. v. Lantos et al. , [1999] O.T.C. 18; [1999] O.J. No. 4212, Nordheimer, J., of the Ontario Superior Court of Justice states at paragraph 18: "As a subsidiary or alternative argument, the plaintiffs say that a defendant, even under a modern approach, can only assert a different meaning for the words complained of if that different meaning is also defamatory. The plaintiffs say that the different meaning advanced by the defendants in para. 17 of the statement of defence is not defamatory. The defendants accept this principle but say that their version of the meaning of the words is defamatory. It is perhaps indicative of the tortured route that defamation pleadings seem to have to take that we advance to a stage where the defendants now allege defamation and the plaintiffs deny it." A defendant is not permitted to so massage and distort the statements complained of that the allegedly defamatory statements take on a meaning that is not at all defamatory. In those situations, the defendant should simply defend on the basis that what was said was not defamatory. If the defendant insists on attempting to justify nondefamatory statements, then the remedy for the plaintiff is to bring an Application to have the defence of justification to a nondefamatory meaning struck out. I turn to the question of whether or not the meaning attributed to the statement contained in the letter by the defendant is defamatory. I am satisfied that if the meaning attributed by the defendant is capable of bearing a defamatory meaning, the defence advanced by paragraph 5 of the Amended Statement of Defence to the Amended Statement of Claim cannot be struck out. ( Asper v. Lantos , supra). [19] The defendant acknowledges that the first sentence contained in paragraph 5 does not bear a defamatory meaning, and is not capable of bearing a defamatory meaning. The defendant also acknowledges that the last sentence contained in paragraph 5 merely provides particulars and places where those particulars may be found. Again the defendant agrees that the particulars in themselves do not raise a defamatory meaning, aside from the support that they provide to the proposition contained in the centre sentence of paragraph 5. Reasonable people would not hate, or despise, or subject a person to ridicule, shun or avoid that person, or consider that person to be a lesser person in their estimation because that person has made a Constitutional argument in a criminal court. Reasonable people are concerned about the constitutional liberties of their fellow citizens. Reasonable people support the Constitution of Canada or at the very least, support the right of other citizens to rely upon the protection afforded by that Constitution . The plaintiff brings brought a defamation action against the defendant respecting public statements represenattion alleging that he falsified his income tax return and forged invoices when a director of his company. The statement of claim also claimed negligence, alleging that the defendant's were liable for shoddy and incomplete research. Is there concurent liability alleging negligence, and claiming liability in defamation and tort where the claim was for loss of reputation. Practice - Adding or Substituting Parties [259]

Definitions - Foreign state or agency of a foreign state - Plaintiffs seek to add the Ministry of Attorney General as a party - The Plaintiff assert that it was part

In Ferguson v. Arctic Transportation Ltd. (1995), 105 F.T.R. 13 (TD) Practice - Parties - Adding or substituting parties - Adding or substituting defendants - Conditions precedent The plaintiff sued the defendant company and ship owners for damages for injuries he suffered while on board a barge which was transiting the Panama Canal - The plaintiff was a pilot for and an employee of the Panama Canal Commission - The Commission was in control of the defendants' vessels while they were transiting the Canal - The corporate defendant successfully applied to add the Commission as a third party - It then sought to add the Commission as a defendant under Federal Court Rule 1716 - A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the motion - The Commission did not come within the ambit of rule 1716 either as an entity that ought to be joined as a party, or as necessary to determine the issues in the plaintiff's case. Statement of Claim Pleadings - General principles - Stating material facts -. [260]

Pleadings - Statement of claim - Requirement of stating basis for claim - A plaintiff and his dependent sued foreign functionaries for personal injuries arising from a conspiracy related to a kidnapping - The foreign functionaries claimed sovereign immunity - Although common law did not except personal injuries from state immunity, s. 6 of the federal State Immunity Act did - The kidnapping occurred after the Act came into force - The plaintiffs asserted that the Act applied as the conspiracy was ongoing - The Ontario Court of Appeal refused to assert jurisdiction where there was a flagrant disregard for Ontario Civil Procedure Rule 25.06(1) which required a concise statement of the material facts on which the plaintiffs relied for their claim - See paragraphs 55 to 56. Practice - Topic 44.9

Should The Amendments Sought By The Plaintiff Be Allowed Rule 24(1) of the Supreme Court Rules provides that a party may amend a pleading "... at any time with leave of the court ...". Where the defamatory words are actionable per se, it is not necessary for the plaintiff to allege or to prove special damages: Allan v. Bushnell T.V. Co. , [1969] 2 O.R. 6 (C.A.); LeBlanc v. Imprimerie Acadienne Ltée , [1955] 5 D.L.R. 91 (N.B.Q.B.). Included within the matters which are considered to be slander per se is an accusation of the commission of a criminal offence. On August 24, 1996, the defendant referred to the plaintiff as a "murderer". It is clear that this type of statement is slander per se: Mitchell v. Victoria Daily Times (No. 3) (1944), 60 B.C.R. 39 (B.C.S.C.); Levi v. Reed (1881), 6 S.C.R. 482; and Cook v. Cook (1875), 36 U.C.Q.B. 553 (Ont. C.A.). Accordingly, the limitation period relating to the August 24, 1996, statement commenced to run on August 24, 1996. The question which then arises is whether s. 4(4) of the Limitation Act contemplates the addition requested by the plaintiff. The plaintiff submits that the decisions in Emmerton v. University of Sydney, [1970] 2 N.S.W.R. 633 (N.S.W.C.A.) and Thomas v. Canadian Broadcasting Corp. and Sanders , [1981] 4 W.W.R. 289; 27 A.R. 547 (N.W.T.S.C.), establish the proposition that each defamatory statement constitutes a separate slander. In Emmerton , the court dealt with a series of letters written about a university employee. The court concluded: "... it being clear law that each distinct occasion of publication of the same defamatory writing to a different publishee is a separate cause of action." (at p. 634) In Thomas , Disbery, J., concluded: "The law is quite clear that every repetition of a slander is, in itself, a new slander and consequently the defendants are equally responsible not only for broadcasting what they themselves originated and authored but also to the same extent for the hearsay repetitions they saw fit to include in their said broadcasts as part thereof and published to the listening members of the public: Gatley on Libel and Slander , 6th ed., (1967), pp. 130, 264 and 591 ... . See also Cherneskey v. Armadale Publishers Ltd. , [1979] 1 S.C.R. 1067 ... and Rubber Improvement v. Daily Telegraph; Rubber Improvement v. Associated Newspapers , [1964] A.C. 342 at 260, [1967] 2 All E.R. 151 (sub nom. Lewis v. Daily Telegraph; Lewis v. Associated Newspapers ) (H.L.)." (at p. 298)

Statement of Claim Amendment Special Circumstances to Amend In referring to that passage, Hall, J., in Onishenko Estate v. Quinlan , [1972] S.C.R. 380; 24 D.L.R.(3d) 720, commented that the word " peculiar" should now be equated with the use of the word "special". Hall, J., concluded that the power to allow amendment would be "infrequently invoked as the circumstances warranting its use will not often occur". (at p. 273) In concluding that the amendment should have been allowed in the case under review, Hall, J., noted: "In my view, the special circumstances which would warrant a court to allow such an amendment exist here. All the facts relating to the tort of the respondents and their liability for the death of Onishenko were pleaded in the original statement of claim. The respondents have admitted responsibility for the death of Onishenko. On the examination for discovery of the appellant which took place on June 9, 1969, counsel for the respondents examined as to the age of Onishenko's widow, whether she had employment, the number of children and their ages as well as to the employment of earnings of the deceased, all matters relevant to an action under the Fatal Accidents Act ." (at p. 724) In dealing with what will constitute peculiar or special circumstances, it is clear that under the present and "special circumstances" an explanation while not required from the party seeking the amendment to explain the delay and to explain the connection between or the dependence of the new cause of action on the original action. The following statement of Lambert, J.A., in Lui v. West Granville Manor Ltd. et al. (1985), 61 B.C.L.R. 315 (C.A.), was adopted with approval by Prowse, J.A., in Med Finance Co. S.A. v. Bank of Montreal et al. (1993), 29 B.C.A.C. 98; 48 W.A.C. 98; 79 B.C.L.R.(2d) 222 (C.A.): "... where the limitation period has expired, and the third party proceedings set up a separate cause of action, prejudice to the third party must be presumed, and an explanation is required, from the defendant who issued the third party notice, to explain the delay and to explain the dependence of the third party proceedings on the original action, before the third party notice will be allowed to stand." (at p. 331 of the Lui decision) While the Lui decision dealt with a limitation period as between a defendant and a third party, the Med Finance Co. decision dealt with an amendment sought by a plaintiff to allege that the appellants had breached the insider trading provisions of the Company Act in an action already commenced for damages arising out of hypothecation of shares. After adopting the statement of Lambert, J.A., in Lui , supra, Prowse, J.A., concluded: "Accepting, therefore, that I should apply the principles set forth in Lui and Ricketts to the case at bar, I conclude that the court must presume that the appellants were prejudiced by the amendment adding the new cause of action against them. I also conclude that the explanation tendered by the plaintiff for the delay in applying to add the new cause of action is a significant factor to be considered in determining whether it was 'just' to grant the order allowing the new cause of action to be added." [22] In Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. et al. (1996), 71 B.C.A.C. 161; 117 W.A.C. 161; 19 B.C.L.R.(3d) 282 (C.A.), Finch, J.A., stated: "In the exercise of a judge's discretion, the length of delay, the reasons for delay and the expiry of the limitation period are all factors to be considered, but none of those factors should be considered in isolation. Regard must also be had for the presence or absence of prejudice, and the extent of the connection, if any, between the existing claims and the proposed new cause of action. Nor do I think that a plaintiff's explanation for delay must necessarily exculpate him from all 'fault' or 'culpability' before the court may exercise its discretion in his favour." (at p. 299) In the same decision, McEachern, C.J.B.C., described the considerations as follows: "... I believe the most important considerations, not necessarily in the following order, are the length of the delay, prejudice to the respondents, and the overriding question of what is just and convenient." In Goulais et al. v. Pepin (1984), 39 C.P.C. 189 (Ont. H.C.), O'Leary, J., dealt with an application to add other siblings as plaintiffs after the two year limitation period had expired in an action already commenced within the limitation period by other siblings under the Family Law Reform Act , R.S.O. 1980, c. 152. The headnote states that a plaintiff may be added after the expiry of the limitation period if certain circumstances are present: (1) the facts supporting the added plaintiff's claim were the same as those giving rise to the action;

(2) the added plaintiff's claim arose out of or was directly related to the claim of the plaintiff whose action was commenced in time; (3) the delay was incurred in good faith; and (4) no substantial prejudice or hardship was occasioned to the defendant by the delay. (at p. 191) Is It Just And Convenient That The Amendment Sought By the Plaintiff Be Allowed? The cause of action arose on August 24, 1996, but the plaintiff delayed requesting this amendment until December 15, 1998, some 28 months after the cause of action arose and four months after the limitation period expired. The plaintiff provides this explanation in his January 3, 1999, affidavit regarding the delay between the February 22, 1995, statements made by the defendant and the commencement of this action: However, no explanation is provided by the plaintiff as to why this amendment was not sought or a separate action commenced prior to the expiry of the limitation period on August 24, 1998. Regarding the words set out in (d), it appears that a determination of whether the plaintiff was defamed by those words could proceed even though there is some variance between the words alleged and those proven to have been said by the defendant: Persen v. Rainbow , [1922] 1 W.W.R. (Alta. C.A.); Hahn v. Gettel (1915), 9 W.W.R. 686 (Sask. T.D.); Reilander v. Bengert (1908), 7 W.L.R. 891 (Sask. C.A.). While that may be the case, it would be difficult to find that was is quoted in (d) would constitute slander. It is also clear that this statement is not slander per se. Accordingly, in the absence of showing damage, there is no cause of action available to the plaintiff arising out of the words set out in (d). The statement of defence sets out in paragraph 3 that: "The defendant denies that he published the words set out in paragraph 4 of the statement of claim". With the possible exception of where a defamation action is before a jury, it is clear that ordinarily an amendment should be allowed to reflect the facts as proved: C. v. D. , [1925] 1 D.L.R. 734 (Ont. H.C.). However, that amendment is not sought by the plaintiff. Accordingly, the plaintiff is content to have me deal with the words as set out in the statement of claim as opposed to the words actually known to have been spoken by the defendant on February 22, 1995. It is clear that the actual words complained of must be set out verbatim so that the defendant will know with certainty the words which are alleged to be defamatory: Cook v. Cox (1814), 3 M. & S. 110; Pirie v. Carroll (1931), 4 M.P.R. 127 (N.B.C.A.); Shannon v. King , [1931] 2 W.W.R. 913 (B.C.C.A.); MacKay et al. v. Stomp et al. , [1992] 5 W.W.R. 475; 103 Sask.R. 168 (Q.B.); Barkhouse v. Steele (1995), 142 N.S.R.(2d) 397; 407 A.P.R. 397 (C.A.); Masunda v. Johnson , [1995] B.C.J. No. 182 (S.C.); Rosen v. Alberta Motor Association Insurance Co. et al. , [1994] 1 W.W.R. 719; 146 A.P.R. 219 (Q.B.); Voutsinos v. New Brunswick Research & Productivity Council (1993), 136 N.B.R.(2d) 364; 347 A.P.R. 364 (T.D.). In Shannon v. King , supra, our Court of Appeal confirmed that the words must be specifically set out and that this practice had existed for a long time: " ... the person complaining must be able to say what the words were. He has not been able to do this, therefore, the paragraph struck out shows no cause of action". (at p. 914) The plaintiff cites no authority to suggest that what was set out by our Court of Appeal in 1931 no longer remains the practice in British Columbia regarding defamation actions. From the statement of claim, the defendant is not in a position to know of the actual words complained of because words which are set out in the statement of claim have subsequently been shown not to have been spoken by the defendant and the words known to have been spoken have not been substituted. Accordingly, the defendant is left to guess which words actually said on February 22, 1995, are alleged by the plaintiff to be defamatory. While the actual words said might be found to constitute defamatory statements, the application to correct the statement of claim by reasonable amendments was not made. It is appropriate to accede to the application of the defendant to strike out paragraphs 4(a) through (c) of the statement of claim as it has been shown that those words were not said by the defendant. If that is done, then the plaintiff must rely on what is set out in paragraph 4(d) to constitute the claim against the defendant. [41] On the other hand, the defendant submits that the two year limitation period for defamation applies whether the defamation is slander or slander per se. The defendant relies on Brown, The Law of Defamation in Canada , Carswell, 1987 (Vol. 1) and Floyd v. Hiram Walker & Sons Ltd. , [1957] O.R. 107 (H.C.), to support that proposition. At pp. 794-795, the learned author states: "Where special damages must be shown, as in an action for slander, which is not actionable per se, the action is not complete until the damages are suffered. Where the limitation provision does not

draw a distinction between publications that are actionable per se and those that are actionable only by virtue of special damages, it is possible that the limitation period may expire before the plaintiff can bring his cause of action." Statement of Claim - Defamation Conspiracy Malicious Prosecution The

Respondent submits that the statements of claim advances four causes of action: 1. conspiracy to injure by unlawful means; 2. defamation; 3. negligence (Q.B. 9703-00977 only); 4. breach of statute and code of ethics. The complaint about items 1, 3 and 4 may articulates in this way: "1. The principal ground upon which these applications are made is that while framed as actions for conspiracy, defamation, negligence and breach of statute, all of the claims made as against these defendants are claims for damages arising from an alleged loss of reputation. Claims for damage to reputation are exclusively governed by law of defamation and therefore the claims for conspiracy, negligence and breach of statutory duty should be struck from the pleadings." This issue was canvassed in Fulton v. Globe and Mail et al. (1996), 194 A.R. 254 (Q.B. Master), affd. (1997), 207 A.R. 374; 53 Alta. L.R.(3d) 212 (Q.B.). There the plaintiff sued in defamation and negligence. The claim in negligence was struck out. Lonrho plc v. Fayed (No. 5) , [1994] 1 All E.R. 188 (C.A.), deals with the same issue except that the plaintiff sued for the tort of conspiracy to injure which was allegedly carried into effect by saying certain things about the plaintiff. The tort of conspiracy is summarized in Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al. , [1983] 1 S.C.R. 452; 47 N.R. 191, this way, pp. 471-472: "... the law of torts does recognize a claim against them in combination as the tort of conspiracy if: (1) whether the means used by the defendants are lawful or unlawful, the predominant purposes of the defendants' conduct is to cause injury to the plaintiff; or (2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff ( alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result. (3) In situation (2) it is not necessary that the predominant purpose of the defendants' conduct be to cause injury to the plaintiff but, in the prevailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injury to the plaintiff would ensue. In both situations, however, there must be actual damage suffered by the plaintiff." [13] The case law and the writers draw a distinction between a conspiracy to effect an unlawful purpose (to injure the plaintiff) and a conspiracy to use unlawful means and the plaintiff suffers damage. See, for example, the discussion by Klar, Tort Law , (2 nd Ed.), pp. 517 et seq. For the purpose of considering the plaintiffs "principal ground" for the applications the distinction is irrelevant. I will come back to it later for another argument. All three opinions in Lonrho plc class the conspiracy allegation before it as the first kind of conspiracy and wrestle with whether that claim is an attempt to circumvent defamation law. Dillon, L.J., says, pp. 192-193: "The present action, which was started on 11 July 1991 claims damages and injunctive relief against the defendants in respect of Miss Pollard's campaign and its alleged consequences and the Esterhuysen action; the cause of action relied on is that form of the tort of conspiracy which has been referred to - not altogether conveniently - as a 'lawful means' conspiracy. That is the form of action in conspiracy, recognized by the House of Lords in Lonrho plc v. Fayed and Lonrho Ltd. v. Shell Petroleum Co Ltd. , [1981] 2 All E.R. 456; [1982] A.C. 173 and other decisions there discussed, where actions which, if done by one person on his own, would be lawful and cannot be actionable can be

actionable as a tortious conspiracy if done by several persons in combination and if the predominant purpose of those persons was to injure the plaintiff, and not to protect or forward their own interests; see also the speech of Viscount Simon, L.C., in Crofter Hand Woven Harris Tweed Co Ltd. v. Veitch , [1942] 1 All E.R. 142, at pp. 147-148; [1942] A.C. 435, at pp. 442- 443. So far as this court is concerned, there is no doubt that we have to recognize the validity of such a cause of action. From the plaintiff's point of view, the virtue of it is that the truth or otherwise of the allegations against Lonrho and Mr. Rowland in Miss Pollard's letters and pamphlets would not be an issue in the action; it would be no defence to the defendants to justify the allegations and submit that they cannot be actionable because they are true. This leads to the serious dilemma to which I shall refer below as to whether it is possible by this form of action to circumvent the requirements of a defamation action and recover damages for injury to reputation without the defendants being able to plead justification or assert that the high reputation was not deserved; can a plaintiff by this form of action recover damages for injury to reputation if the defendants have combined to publish the truth about him?" Dillon, L.J., then states the issue again, p. 194: "The principal issue is whether the plaintiffs can recover in this form of action damages for injury to reputation, or, as it is alternatively put, business reputation. A further issue is whether, in the case of Lonrho plc , injury to business reputation can be recovered as a form of injury to property, sc goodwill; that involves considering what is meant by goodwill and - on the way the case has been argued by Mr. Beveridge - whether fluctuations in the share price of a company reflect its goodwill and reputation. In the case of the individual plaintiffs there is an issue whether they can recover in this form of action damages for injury to feelings in addition or as an alternative to damages for loss of business reputation." He goes on to answer the issue this way, pp. 195-196: "In my judgment, if the plaintiffs want to claim damages for injury to reputation or injury to feelings, they must do so in an action for defamation - not in this very different form of action. Injury to reputation and to feelings is, with very limited exceptions, a field of its own and the established principles in that field are not to be side-stepped by alleging a different cause of action. Justification truth - is an absolute defence to an action for defamation, and it would, in my judgment, be lamentable if a plaintiff could recover damages against defendants who had combined to tell the truth about the plaintiff and so had destroyed his unwarranted reputation. But that would be the consequence if damages for injury to reputation and injury to feelings could be claimed in a 'lawful means' conspiracy action. To tell the truth would be wrongful. "I see no difference in this regard between general reputation and commercial or business reputation. ..." Stuart-Smith, L.J., says the same, p. 202: "An individual can sue for injury to reputation and a trading company can sue for injury to its business reputation, but in my judgment to do so it must sue in defamation. I think this follows as a matter of principle and also on authority. The reason in principle is that no one has a right to a reputation which is unmerited. Accordingly one can only suffer an injury to reputation if what is said is false. In defamation the falsity of the libel or slander is presumed; but justification is a complete defence. In malicious falsehood, the plaintiff has to prove that the statement is false." He then goes on to refer to Bell-Booth Group Ltd. and Spring , both referred to in Fulton , and two later unreported decisions by the same Court of Appeal, to support his view that a claim for damages for loss of reputation ( defamation) cannot be "tacked on as parasitic damages to some head of pecuniary loss in this case". In other words, a claim for damages for loss of reputation cannot be slid in under the guise of a different tort. [19] The third member of the court, Evans, L.J., arrives at the same conclusions, pp. 210-211: "Third, the question whether damages for loss of reputation, or loss of business reputation, can be recovered in these proceedings, where defamation is not alleged, seems to me to involve two issues, one a question of law and the other largely a matter of semantics. The question of law is whether damage of that kind is sufficient to establish the cause of action in conspiracy upon which the plaintiffs rely. In my judgment, it is not. Such damages are not pecuniary loss, in the sense which I have described, and it follows that they form no part of the factual situation which entitles the plaintiffs to the remedy they seek. Nor can such damages be recovered parasitically, in my judgment, in addition to damage for pecuniary loss, for the reasons given by Dillon and Stuart-Smith L., JJ.

Conversely, the factual situation which gives a remedy in respect of loss of reputation is the cause of action in defamation which the plaintiffs conspicuously fail to assert. Spring v. Guardian Assurance plc , [1993] 2 All E.R. 273 is Court of Appeal authority for this proposition, following Bell-Booth Group Ltd. v. A-G , [1989] 3 N.Z.L.R. 148, at p. 156 where Cooke, P., used a graphic phrase. 'The important point for present purposes is that the law as to injury to reputation and freedom of speech is a field of its own'. More prosaically, damage of that kind is part of the factual situation which establishes a cause of action in defamation, but not in other torts, including negligence ( Bell-Booth Group Ltd. ) and lawful means conspiracy (here). "The same conclusion is justified on wider grounds. If damages for loss of reputation could be recovered by alleging and proving a lawful means conspiracy, then it would be unlawful to combine with another person in order to tell the truth about the plaintiff with the object of depriving him of a reputation which he enjoys but does not deserve. The implications are far-reaching, and this result could only be prevented by introducing, for example, a defence of justification and other safeguards which have evolved as part of the law of defamation. In other words, 'lawful means' conspiracy should not exist as a separate tort for damage of this kind." [20] As Klar points out, "the agreed combination must be carried into effect in a greater or lesser degree in order for conspiracy to be actionable as a civil cause of action": p. 516. If there is no overt act to carry out the conspiracy there is no tort. In that case the only sins by the conspirators are sins of the mind. The common law does not punish a person solely for a sin of the mind. Sins of the mind are judged in someone else's court. [21] It may be that the conspiracy claim advanced in the lawsuits before me is of the second kind discussed in Canada Cement LaFarge , and Klar p. 519: "A second type of tortious conspiracy arises where parties combine in the use of unlawful means and the plaintiff suffers damage as a result. If the unlawful means used are in themselves tortious and would give rise to a cause of action, even if done by a single party acting alone, the claim of a conspiracy adds nothing to the cause of action itself, although the damages caused because of the conspiracy may be more serious. It is where the unlawful act would not normally give rise to a tort claim, if done by a single party, that the issue becomes important. Should the combining together to commit an unlawful act give rise to a civil cause of action for conspiracy?" A conspiracy to cause injury to the plaintiff by defaming him engages two torts, the first being the conspiracy, the second being the defamation. The principle discussed in Fulton and Lonrho plc applies regardless which kind of conspiracy it is. In addition, where the conspiracy to injure is by defaming the victim the conspiracy claim merges in the defamation claim: Normart Management Ltd. v. West Hill Redevelopment Co. (1996), 4 C.P.C.(4th) 64 (Ont. Gen. Div.); Elliot et al. v. Canadian Broadcasting Corp. et al. (1993), 16 O.R.(3d) 677 (Gen. Div.), affd. (1995), 82 O.A.C. 115; 125 D.L.R.(4th) 535 (C.A.). Klar makes the same point, p. 519, above. See also Franklin Supply Co. et al. v. Midco Supply Co. (1995), 172 A.R. 264; 33 Alta. L.R.(3d) 362 (Q.B.); Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 113 O.A.C. 375; 37 O.R.(3d) 97 (C.A.) and Cinapri et al. v. Guettler et al. (1997), 31 O.T.C. 199; 33 B.L.R.(2d) 289 (Gen. Div.), not cited by counsel. Mr. Engel says that the allegations about conspiracy are allegations going to damages only, not to a cause of action in conspiracy. Mr. Carroll and I must not be reading the same pleadings that Mr. Engel is reading. Of course Mr. Carroll and I must of necessity look at the pleadings objectively. The author of a document often sees only what he intended to say. Whether the pen accurately followed the mind is another matter. The right order of things in a tort claim is a duty, a breach of the duty and damages flowing from the breach. In proving his case the victim does not start with damages and work backwards to then prove a duty and a breach of it. In pleadings the same logical order must follow. The pleader does not plead damages first, then a duty and a breach of it or worse yet then a breach of a duty and last the duty. You do not read a book backwards and you should not plead backwards. Mr. Engel would have me accept that paragraph 4 is just a plea going to damages only (not a claim for conspiracy) with the defamation claim following in later paragraphs. I do not read paragraph 4 that way. I read it to be a claim for the second kind of conspiracy. If, as Mr. Engel suggests, paragraph 4 goes only to damages for defamation I would have to conclude that the pleading is "obfuscatory and mealy mouthed", to use a description by Southin, J.A., in

Murrell v. Simon Fraser University (1997), 101 B.C.A.C. 207; 164 W.A.C. 207; 43 B.C.L.R.(3d) 209 (C.A.), p. 217. In his written brief Mr. Engel says that "while one aspect of the two lawsuits is a claim for damages for loss of reputation" other causes of action are pled which he identifies as follows: (a) Injurious Falsehood ( Remedies in Tort , pp. 9-5 to 9-8, Tab 1); (b) Malicious Prosecution ( Remedies in Tort , pp. 15-11 to 15-16, Tab 2); (c) Negligent Misstatement ( Remedies in Tort , pp. 16,IV -11 to 16.IV-12, Tab 3); (d) Inducing Breach of Contract/Unlawful Interference with Economic Interests ( Remedies in Tort , pp. 8-11 to 8-21, Tab 4); (e) Conspiracy to Commit (a), (b) and ( d) ( Remedies in Tort , pp. 3-9 to 3-15, Tab 5). In regard to (a), the quote is this: "1. The tort of injurious falsehood is the malicious publication of falsehoods concerning the plaintiff to third persons, who are induced by those falsehoods to act in a manner which causes the plaintiff actual damage." In the context of the lawsuits before me what is the difference between a defamation of the plaintiff where the defendants were malicious in committing the defamation and the tort of injurious falsehood? I see none. Later, in the same work relied on by Mr. Engel, it is said: "6. Both defamation and injurious falsehood 'involve a false and harmful imputation concerning the plaintiff, made not to him directly but to a third person.' Different interests of the plaintiff are protected by these two torts: defamation protects the plaintiff's interest in his reputation where false statements are made which lower him in the esteem of others; injurious falsehood concerns disparagement of the plaintiff's property, products, business or other attributes which affects their disposibility." In the context of the lawsuits before me this is just a semantics argument by Mr. Engel. Southin, J.A., would probably call it "obfuscatory". It is just an artificial attempt to separate a claim into parts and have each part be a whole. This argument by Mr. Engel just leads us back to the tort of defamation. [33] I understand what is being communicated in the pleadings even though Mr. Engel tries to disguise it. As Southin, J.A., said in Kalaman v. Singer Value Co. (1997), 93 B.C.A.C. 93; 151 W.A.C. 93; 38 B.C.L.R.(3d) 331 (C.A.), p. 360: "Persons do frequently understand what is being communicated although that which is being communicated may be ill expressed or not expressed at all. This proposition is illustrated by a limerick attributed to Anon: 'There was a young lady from Ken Who said she knew what it meant When men asked her to dine Gave her cocktails and wine She knew what it meant but she went.'" In regard to (b), malicious prosecution, I do not understand the submission. The requirements for that tort are set out in Nelles v. Ontario et al. , [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609: (1) The proceedings must have been initiated by the defendant; (2) The proceedings must have terminated in favour of the plaintiff; (3) The plaintiff must show that the proceedings were instituted without reasonable cause; (4) The defendant must have been actuated by malice. Assuming, without deciding, that complaints to the Association can constitute that tort the pleadings do not get past the second requirement. In regard to (c), negligent misstatement, a "misstatement" is a statement which is wrong. In the context of what is pleaded what are the " misstatements"? They are all about the plaintiff's professional conduct and professional morality. That leads full circle back to defamation. For the reasons given in Fulton and Lonrho plc the plaintiff cannot dance around the possible defences to a defamation lawsuit by suing for "negligent misrepresentation". In regard to (d), inducing breach of contract and unlawful interference with economic interests, I fail to see those as distinct causes of action in the pleadings. The basic allegation in that context is that the defendants conspired to inflict economic injury on the plaintiff and they did that by defaming him.

In regard to (e), conspiracy, I agree that paragraph 4 pleads that so we come full circle to Mr. Carroll's argument that this is not permissible. To the extent that the plaintiff relies on a breach of the Act or a code of ethics as a cause of action the principle in Fulton applies. Mr. Carroll and Mr. Engel disagree about what the allegations about the Act and the code of ethics go to. Mr. Engel says that the plaintiff is not advancing a cause of action for breach of statute. Rather, he says, this is pleaded to show a special relationship between veterinarians which creates a duty of care and the Act and code of ethics go to damages. But the gist of the complaint is defamation. A suggestion that a "special relationship" creates a duty of care not to defame has no merit. There does not need to be a "special relationship" between defamer and victim. This argument adds nothing. If anything, a "special relationship" between defamer and victim might give rise to a special defence. Mr. Engel has not identified any section of the Act allegedly violated by the defendants as the plaintiff pleads in paragraph 7. How defaming the plaintiff, which is a common law tort, violates the Act and the code of ethics escapes me. Defamation is a common law tort. I also agree with Mr. Carroll that the code of ethics is not a matter for the court to get into. If the plaintiff says that the defendants have violated the code of ethics the remedy is to make a complaint to the Association: s. 28(1) of the Act . In regard to the part of paragraph 8 that Mr. Carroll seeks to strike out, that would be a fact for a claim for malicious prosecution, but it cannot stand because there is no cause of action for malicious prosecution properly pled, i.e., the four requirements. Statement of Claim defamation - and negligence - beach of contract At p. 639 of the decision, Montgomery, J., stated the following: "Paragraph 44 of the Statement of Claim alleges failure of the defendants to adequately research the records. The defendants could be negligent in their research if they did not publish what the plaintiffs complain of is the harm alleged from the publication of the negligently researched material. The grievance of the plaintiffs is injury to reputation. That is really a claim in defamation, not in negligence. The negligent research is not actionable per se. "This further disguised claim of defamation must be struck." [24] The Ontario Court of Appeal, in a decision reported at (1995), 82 O.A.C. 115; 125 D.L.R.(4th) 534, dismissed the appeal from the judgment of Mr. Justice Montgomery, the court having found no error in his reasoning. [25] Counsel for the plaintiff/appellant cited a number of cases before me dealing with situations wherein loss of reputation claims had been advanced in the context of negligence actions. [26] In my view, there is no need for me to review these decisions as all of the decisions are distinguishable in that none of the decisions deal with the issue of the correctness of combining claims in defamation and negligence for loss of reputation. [27] I reiterate that counsel were not able to provide me with any authority whereby concurrent claims for damage to reputation had been permitted in defamation and negligence. [28] There are sound policy reasons for upholding the integrity of the law of defamation which, as noted above, does reflect a balancing of the interests of maintaining free speech while protecting the rights of individuals. [29] The law of negligence is not concerned with any such balancing of interests but rather is concerned with breaches of duties of care. [30] Furthermore, the court should resist expanding loss of reputation claims in the context of publication beyond the law of defamation in that to permit claims in negligence would allow plaintiffs to circumvent defences available to defendants in defamation claims.

Statement of Claim agaist Attorney General In B.N. v. Can. (A.G.) (1998), 230 A.R. 390 (QBM) "6. The defendants, and in particular, the defendant, Herb Gray, Solicitor General of Canada, have a statutory obligation under the Criminal Records Act , R.S.C. 1985, c. C-47, including, inter alia, to keep such a record of conviction separate and apart from all other criminal records and not to disclose such information to any person.

"9. Contrary to the Criminal Records Act , the plaintiff was advised that the defendants had supplied the information that the plaintiff had obtained a pardon, to customs personnel. "10. The plaintiff suffered humiliation and has had to cancel further business trips for fear that entry to the United States may be refused. As well, the plaintiff often travels with customers and the plaintiff has had to avoid any such travel for fear of loss of customers and/or loss of employment. "12. The defendants' words and actions have defamed and continued to defame the plaintiff by publishing, speaking, and/or broadcasting information which, contrary to the provisions of the Criminal Records Act and to the Pardon which was granted, imply criminal behaviour. The plaintiff has and continues to suffer damages as a result of this defamation."

Statement of Claim Defamamtion The Plaintiffs rely on the case of Larche v. Middleton, 69 O.R. (2d) 400, for the proposition that, absent the application of the discoverability rule, each publication of a defamatory remark constitutes a separate cause of action . In the alternative the Respondent also relies on the reasoning of the Ontario Court of Appeal and the Supreme Court of Canada in the case of Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 (S.C.C.); [1993] O.J. No. 239 ( Ont.C.A.) for the proposition that all publications together were a single continuous tort and thus all are actionable having been sued within two years of the last two publications. Reliance is also placed on Basse v. Toronto Star Newspapers Ltd., 4 D.L.R. (4 th) 381, for this same proposition. Botiuk (supra) and Rather (supra) deal with issues where defamatory remarks were raised on multiple occasions. In Basse the issue was republication by a third party. In Botiuk the particular facts of the case were found to justify the treatment of three related documents as a single, combined defamation resulting in a single award of damages. The test for defamation is well understood and was succinctly set out by the Supreme Court of Canada in Botiuk (supra) at paragraph 62: . . . a publication which tends to lower a person in the estimation of right-thinking members of society, or to expose a person to hatred, contempt or ridicule is defamatory and will attract liability. . .. What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances. The interview of August 1st 1996, defamed the Plaintiffs. The allegations of sexual assualt on children in Canada; organized criminal activities; go right to the root of the Plaintiffs more precious treasures their moral integrity and honest conduct. The evidence before the Court shows that these allegations were untrue and on close examination the Plaintiffs will prove that the defendants knew them to be untrue. There were never a charge, conviction or even an investigation of the Plaintiffs for the allegations in the Letter of Request related to pseudo-religious practices, money laundry, organized crimead the heinous allegation of sexually assaulting children of this province. It was most certainly established, if it had not been known all along, that there was no impropriety in the personal tax declarations of Mr. Kapoustin or in the Plaintiff's dealings with their companies assets. Also defamatory and untrue were the allegations of consorting with associated of a suspected religious order in Canada deemed a "pseudo-religious" cult and it directors. Save for the allegation of accepting a ride which I find, in any event, was an innocent and simple common courtesy extended by the Condor Director to the Plaintiff and readily admitted by the Plaintiff. This allegation concerning the ride, in and of itself, is not defamatory in any event, in my judgment. On the whole of the evidence before this Court there clearly flows that the intent of the defendants, from the onset was a conspiracy to impute criminality to Mr. Kapoustin, the plaintiffs and their companies LifeChoice et al. If the R.C.M.P. intention is deemed as irrelevant then in the alternative what relevant is the consequences. The test is objective and based upon "the estimation of rightthinking members of society." On this test and considering the surrounding circumstances in which the Defendant Doorbus took a part and the unflattering view held by him of Kapoustin and his companies, with reference to the R.C.M.P., it did most certainly impute criminality to Kapoustin and would be seen by right- thinking members of society as doing so. It is therefore a further defamation. An defense of defence of justification must be ultimately rejected. As for qualified privilege, oOn this issue I find that the letter of December 6, 1996, from Runciman, the President of a regulated company, to Sherritt, the Acting Director of the regulator, complaining about the conduct of a subordinate employee of the regulator, was a communication made on an occasion of qualified

privilege. I also find, however, that the dominant motive of the letter was not a legitimate attempt to protect Canadian Aero's interest but rather to vent spite and ill-will against the Plaintiff Olson. In short, I find that the letter was motivated by express malice against Olson who was seen by Runciman, if not as the enemy, then at least as consorting with the enemy. I find striking evidence of express malice in Runciman's startling admission alone that he had reason to doubt his informer's credibility yet used his "information" as a foundation for his complaint against the Plaintiff in any event. On this and the whole of the evidence the defence of qualified privilege fails. So too does the defence of fair comment. I adopt with respect the statement of law by Ritchie J. of the Supreme Court of Canada, speaking for the majority, in the case of Chernesky v. Armadale Publishing Ltd., [1979] 1 S.C.R. 1067 at paragraph 21: "In cases where the essential ingredients of either the plea of "qualified privilege" or that of "fair comment" have been established by the defence, then if it can be proved that the statements complained of were made or written maliciously the plea must fail;. ... As stated above, the Plaintiffs plead that express malice was the dominant motive for the Letter of Request of July 7th 1995 and the August 1st, 1996 interview Under section 2(2) of the Defamation Act, R.S.A. 1980 c. D-6, when defamation is proven, damages are presumed. On the matter of damages it must be borne in mind, in this case, that the defendants were public officials performing a job which was vital to public safety. They had a duty to see that the applicable regulations were properly observed and followed and that compliance failures were treated appropriately. The evidence proves that they did not discharged their duty faithfully and impartially, and maliciously defamed the Plaintiffs Kapoustin in the course of doing so.

The plaintiff seeks the following relief: "That the court make a finding of liability against the Society declaring that the plaintiff was wrongfully terminated and award damages: 1. General damages for wrongful termination equivalent to 13 months salary at $3,400 per month for a total of $44,200. 2. General damages for mental distress in the amount of $60,000. 3. General damages for defamation in the amount of $60,000. 4. Future care costs for medication and therapy in the amount of $5,000. 5. Aggravated or punitive damages in amount of $35,000. 6. Special costs or in the alternative that the determination of costs be reserved pending judgment." [16] The issues for determination are: 1. Has the Society satisfied the onus that the plaintiff was terminated for just cause? 2. Can the Society rely on the contractual term limiting the notice period to eight weeks? 3. What is a reasonable notice period in common law for the circumstances of the case? 4. Was the termination carried out in such a way that the plaintiff ought to be awarded either punitive exemplary or aggravated damages or, in the alternative, an extended notice period? 5. Was the termination carried out in such a way that the plaintiff ought to be awarded damages for mental distress? 6. Was the plaintiff defamed by Sharon Hiebert and is the Society liable for such defamation? 7. Was the plaintiff defamed by the Society and if so, what is the quantum of damages? Statements of Claim - Defense Fair Comment - defamation - negliegence - neglgenet research STATEMENT OF CLAIM It is hard to evade or overstate the importance of the defence of fair comment. To quote briefly from several well-known quotations dealing with this matter: "[t]he right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements.: Slim v. Daily Telegraph Ltd. , [1968] 2 Q.B. 157 (C.A.), at p. 170 per Lord Denning. "It is one of the fundamental rights of free speech and writing which are so dear to the British nation, and it is of vital importance to the rule of law on which we depend for our personal freedom that the courts should preserve the right of 'fair comment' undiminished and unimpaired.: Lyon v. Daily Telegraph Ltd. , [1943] 1 K.B. 746 (C.A.), at p. 753 per Scott, L.J.

"It would be an evil day for free speech in this country if this kind of controversy on a matter of public though local interest were discouraged by the fear that every word written to be read in haste should be subjected in a court of law to minute linguistic analysis of the kind to which these letters have been subjected on this appeal. Slim v. Daily Telegraph Ltd. , [1968] 2 Q.B. 157 (C.A.), at p. 179 per Diplock, J. "A free and general discussion of public matters is fundamental to a democratic society. The right of persons to make public their thoughts on the conduct of public officials, in terms usually critical and often caustic, goes back to earliest times in Greece and Rome. The Roman historian, Tacitus, spoke of the happiness of the times when one could think as he wished and could speak as he thought (1 Tacitus, History , para. 1). Citizens, as decision-makers, cannot be expected to exercise wise and informed judgment unless they are exposed to the widest variety of ideas, from diverse and antagonistic sources. Full disclosure exposes, and protects against, false doctrine." Cherneskey v. Armdale Publishers Ltd. and King , [1979] 1 S.C.R. 1067; 24 N.R. 271, at p. 1096 [S.C.R.] per Dickson, J. An appropriate test in determining whether statements were fact or comment can be seen in the case of at England v. Canadian Broadcasting Corp. and Clarkson , [1979] 3 W.W.R. 193 (N.W.T.S.C.), p. 207 where Tallis, J., states that: "In arriving at the natural and ordinary meaning of the words used, the question is what meaning those words would convey to an ordinary man, i.e., what meaning he gets from the words themselves and what he would infer from the words. In this connection I quote from the case of Rubber Improvement Ltd. v. Daily Telegraph , [1964] A.C. 234; [1963] 2 All E.R. 151, which is a decision of the House of Lords on libel. Lord Reid at p. 154 had this to say: 'There is no doubt that in actions for libel the question is what the words would convey to an ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs ... 'What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them and that is also regarded as part of their natural and ordinary meaning.'" Judge Tallis, at p. 209, also quoted from Lord Devlin's judgment in Rubber Improvement Ltd. v. Daily Telegraph Ltd. , [1964] A.C. 234, where the following appears: "In this particular case there is no jury, but as the trier of fact I must place myself in the position of a jury. It seems to me that the authorities support the view that it is the broad effect of the publication that counts. There is no purpose and it would be improper for me to dissect the words in the television broadcast neatly as one might do in interpreting an insurance contract. It is what the ordinary man hearing and viewing the television broadcast would think." The second error made by the learned trial judge was failing to consider the following principle enunciated by Lord Keith of Kinkel in Telnikoff v. Matusevitch , [1991] 3 W.L.R. 952; 135 N.R. 281 (H.L.), at p. 956 [W.L.R.]: "The first matter considered by Drake, J., and the Court of Appeal was whether those parts of the defendant's letter which were defamatory in character ... were capable of being regarded as statements of fact or could only properly be held to be comment ... Drake, J., said that on a consideration of the letter as a whole he had no doubt that these paragraphs constituted comment. If he had felt any doubt about the matter he would presumably have left it to the jury to decide, having regard to the law as stated in Halsbury's Laws of England , 4th Ed., (1979) vol. 28, para. 228: 'The question whether all or some of the words complained of are statements of fact or comments is a question of construction for the judge. If, in his opinion, there is no reasonable doubt, he must direct the jury accordingly; but if, in his view, there is reasonable doubt as to whether the words are statements of facts or expressions of opinion he must leave it to the jury to decide.'"

Background [4] The appellant (plaintiff) submits that the original facts pleaded give rise to causes of action in defamation, malicious prosecution, abuse of process and conspiracy to cause damage by lawful means. The appellant further submits that some portion of the pleadings which were struck support the claim founded in defamation, as well as claims for exemplary or punitive and aggravated damages. [5] The respondents' (defendants') original Notice of Motion in this matter requested an order to strike a portion of the pleadings on all of the enumerated grounds referred to in rule 129. The respondents argue that any cause of action arising from the facts pleaded relates to a claim for damage to reputation, and as such is governed exclusively by the law of defamation. The respondents obviously support the learned Master's award of costs. They argue that it is justified given the fact that although the issues were substantially the same, they were not identical and substantial time was expended to "track the differences". Further, the costs that would have been awarded based upon the new Schedule C (which came into effect September 1, 1998, shortly after Master Funduk's decision) would have been significantly higher. Determination [6] The decision of the Alberta Court of Appeal in Peterson et al. v. Highwood Distillers Ltd. et al. (1998), 216 A.R. 83; 175 W.A.C. 83; 158 D.L.R.(4th) 569 (C.A.), affirms the principle that a court should always be generous in assessing pleadings. This principle was also recently affirmed by our Court of Appeal in Kvaerner Enviropower Inc. v. Tanar Industries Ltd. et al. , [1998] A.J. No. 1027; 223 A.R. 348; 183 W.A.C 348 (C.A.). In that case the Court of Appeal also confirmed once again that the test for applications under rule 129(1) was an onerous one. Every phrase or sentence or paragraph in a statement of claim need not, and cannot, disclose an independent cause of action: Alexander et al. v. Pacific Trans-Ocean Resources Ltd. et al. (1991), 120 A.R. 22; 8 W.A.C. 22 (C.A.). [7] A motion to strike pleadings is not to be used to decide difficult points: McEwen v. North-West Coal and Navigation Co. (1889), 1 Terr.L.R. 203 (C.A.); Alexander v. Pacific , supra. The court must exercise the same caution in striking portions of a claim as in striking the whole of the statement of claim: Valentine v. Bee-Bell Health Bakery Ltd. (1993), 161 A.R. 1 (Q.B. Master), citing the Alberta Supreme Court Appeal Division in Sargent v. Canadian Coachways Ltd. , [1949] 1 W.W.R. 305 (Alta. C.A.). It may be that certain paragraphs can only be relied on by the plaintiff for limited purposes: Morris v. Wiltshire , The Times Feb. 15, 1994 (C.A.). Finally, the court should be concerned with matters of substance, and not of form: Operation Dismantle Inc. et al. v. Canada et al. , [1985] 1 S.C.R. 441; 59 N.R. 1; 13 C.R.R. 287; 18 D.L.R.(4th) 481; 12 Admin. L.R. 16; Colonia Life Holdings Ltd. v. Fargreen Enterprises Ltd. (1990), 1 O.R.(3d) 703 (Gen. Div.). Paragraph 5 [8] In light of the appellant's written argument, the appellant has impliedly conceded to striking out the phrase "or negligently" in paragraph 5 of the Statement of Claim in Action No. 9703-01454. The appellant's counsel states at p. 2 of his brief that he agrees with the decision of the Master insofar as it applied the principle that, excepting the claims for malicious prosecution, abuse of process and conspiracy to cause damage by lawful means, all other claims made by the appellant that flow as a result of published false statements have merged in the tort of defamation. This of course, therefore, excludes the tort of negligence. Paragraphs 3 And 7 [9] The appellant cites D.B. Casson, Odgers on High Court Pleading and Practice (23rd Ed.), (London: Sweet & Maxwell: 1991), p. 143 as authority for the proposition that facts which are matters in aggravation of damages should be pleaded. McElroy v. Cowper-Smith and Woodman , [1967] S.C.R. 425, is conclusive authority to the effect that not only aggravated damages, but also punitive damages may be awarded in defamation cases where the circumstances so warrant. Even assuming that the only cause of action arising from the facts alleged is defamation, paras. 3 and 7 may be relevant to an award of exemplary or punitive damages, as it is arguable that they relate to the standard of morality or decent conduct to which members of the veterinary profession are to be held. Since the substance of the pleadings is in issue here, and not the form, the location of paras. 3 and 7 does not minimize their potential relevance to the issue of damages. Paragraph 8

[10] At p. 10 of his written submissions, counsel for the respondents, referring to the latter portion of para. 8, writes that "to the extent that these expenses flow as a consequence of the communications allegedly made by the defendants which found the defamation claim, the appellant is at liberty to apply for leave to amend his damages claim as he deems fit without reference to the alleged conspiracy". However, para. 8 of the statement of claim does not make reference to any conspiracy, but simply refers to legal expenses incurred as a result of wrongful complaints to the A.V.M.A. Even if the pleadings sound only in defamation, para. 8 would require no deletion or amendment, as the defamatory statements detailed in para. 5 include communications by the defendants to the A.V.M.A., and it is arguable that costs of the defence may be recoverable as special damages. Paragraph 4 [11] This leaves us with para. 4. Counsel for the respondents submit that defamation is the gravamen of the appellant's complaint, and that as a matter of law claims for damage to reputation are governed exclusively by the law of defamation, relying on Foaminol Laboratories Ltd. v. British Artid Plastics Ltd. , [1941] 2 All E.R. 393 (K.B.); Lonrho v. Fayed (No. 5) , [1994] 1 All E.R. 188 (C.A.) and cases cited therein, and Fulton v. Globe and Mail et al. (1996), 194 A.R. 254 (Q.B. Master); affd. with variation (1997), 207 A.R. 374; 53 Alta. L.R.(3d) 212 (Q.B.). Foaminol , supra, dealt with claims for loss of reputation caused by a breach of contract. The court in that case held that the loss of reputation is a matter for which damages cannot generally be claimed except in actions for defamation. This statement of law is much less categorical than that espoused by the respondents. It is further tempered by the court's conclusion that the mere fact that the pecuniary loss is brought about by the loss of reputation caused by a breach contract is not sufficient to preclude the plaintiffs from recovering in respect of a pecuniary loss by way of a breach of contract if such pecuniary loss can be established (at p. 400). Fulton v. Globe and Mail , supra, deals specifically with alternative claims in defamation and negligence. The appellant has already conceded that the claim in negligence cannot stand. [12] Lonrho v. Fayed , supra, involves the issue of framing a claim for damages for injury to reputation as a "lawful means" conspiracy action. At p. 195 of that decision, Dillon, L.J., states: "Justification - truth - is an absolute defence to an action for defamation, and it would in my judgment, be lamentable if a plaintiff could recover damages against defendants who had combined to tell the truth about the plaintiff and so had destroyed his unwarranted reputation." [13] The appellant argues that the pleadings support a claim in conspiracy to cause damage by lawful means. The logic espoused by Dillon, L.J., precludes such a claim in this case. Furthermore, the respondents submit that the facts set out in para. 4 do not support such a claim, since the means alleged would be unlawful. Indeed, it is difficult to see how the facts in para. 4 could support the claim of conspiracy to cause damage by lawful means as suggested by the appellant. [14] However, the appellant goes on to argue that the fact that the respondents conspired together would constitute severe, high-handed, wanton, callous and reprehensible behaviour which would support exemplary or punitive and aggravated damage claims. Insofar as damages are concerned, para. 5 contains language sufficient to allow the appellant to lead evidence on the issue of the defendants acting in concert to effect the defamation. [15] The remaining issue is that of malicious prosecution or abuse of process. Nelles v. Ontario et al. , [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, sets out the requirements for the tort of malicious prosecution. The appellant has failed to plead one of the required elements, namely, that the proceedings in question terminated in favour of the appellant. The appellant requests leave to amend so that if the proceedings had been terminated in favour of the plaintiff, the plaintiff would have the opportunity to advance the claim. The respondent contends that the phrase "by initiating a false and malicious complaint against the plaintiff to the A.V.M.A." is simply one of the alleged modes by which the alleged conspiracy was carried out and is not a plea of an independent cause of action. The respondents go on to argue that if malicious prosecution is alleged, then that claim is essentially for damages, direct and consequential, arising from an alleged loss of reputation which are exclusively governed by the law of defamation. [16] J.G. Fleming, in The Law of Torts (9th Ed.) (Sydney: Law Book Co., 1998), discusses defamation and malicious prosecution at p. 673: "... [M]alicious prosecution ... bears close resemblance to defamation, both being infringements of essentially the same complex of interests on the part of the plaintiff. ... [T]his action [malicious prosecution] was never absorbed into the law of defamation."

The respondents have not produced any authority which would negate this proposition. [17] Therefore, although it is clear that defamation largely governs claims for loss of reputation, the respondent's statement of the ambit of defamation goes too far. [18] The question whether a claim of malicious prosecution would be tenable with respect to the disciplinary proceedings in question is better left to the trial judge. Should the appellant desire leave to amend to include the missing element, the parties are invited to make submissions as to whether such an amendment is permissible. However, even if the appellant cannot amend the pleadings to meet the requirements set out in Nelles , supra, the impugned phrase may support the claim in defamation, and should not be struck. [19] The appellant also argues that certain facts relevant to the defamation claim were struck out in striking out para. 4 in its entirety. Those concerns are addressed below. Conclusion [20] The underlined portions of the statement of claim in Action No. 9703- 01454, and the identical portions of the statement of claim in Action No. 9703-00977, are struck as follows and para. 4 is amended as indicated by the bolded letters for grammatical reasons: "3. Both the plaintiff and the defendants are members of their professional governing body, the Alberta Veterinary Medical Association ('A.V.M.A.') and as such, are subject to the A.V.M.A.'s rules, bylaws and Code of Ethics. They are also subject to the Veterinary Profession Act . 4. Starting in about October 1996, the defendants conspired together to inflict ed economic damage on the plaintiff's practice and did inflict such damage by making false and defamatory statements to clients and potential clients of the plaintiff and by initiating a false and malicious complaint against the plaintiff to the A.V.M.A. and by communicating false information to the A.V.M.A. The defendants continue to act in furtherance of their conspiracy and the plaintiff continues to suffer economic damage, losing about $13,000 per month. 5. The defendants, or any one of them or any combination of them, either on their own or as parties, falsely and maliciously or negligently spoke and made the following publications to the following people and/or organizations: ... (particulars omitted) 6. The said words were uttered in the course of conversations about the skill, competence and ethics of the plaintiff and, in their natural and ordinary meaning, meant and were understood to mean that the plaintiff was incompetent, unskilled, unprofessional and dishonest in his practice. 7. The defendants have, in consequence of the above, violated the Veterinary Profession Act and the A.V.M.A. Code of Ethics. 8. As a consequence of the above the plaintiff was and continues to be injured in his credit and reputation in his profession and has and continues to be put to legal expenses to defend the wrongful complaints made to the A.V.M.A." [21] If the appellant desires leave to amend to include the missing element relating to malicious prosecution, the parties are invited to make submissions as to whether such an amendment is permissible, once the appellant has revealed the nature of the proposed amendment. Defamation Statement of Claim Defamatiom [3] The portions of the statement of claim that were struck by Master Funduk are set forth below and underlined: " 3. Both the plaintiff and the defendants are members of their professional governing body, the Alberta Veterinary Medical Association ( 'A.V.M.A.') and as such, are subject to the A.V.M.A.'s rules, bylaws and Code of Ethics. They are also subject to the Veterinary Profession Act .

Conspiracy 4. Starting in about October 1996, the defendants conspired together to inflict economic damage on the plaintiff's practice and did inflict such damage by making false and defamatory statements to clients and potential clients of the plaintiff and by initiating a false and malicious complaint against the plaintiff to the A.V.M.A. and by communicating false information to the A.V.M.A. The defendants continue to act in furtherance of their conspiracy and the plaintiff continues to suffer economic damage, losing about $13,000 per month .

5. The defendants, or any one of them or any combination of them, either on their own or as parties, falsely and maliciously or negligently spoke and made the following publications to the following people and/or organizations: ... (particulars omitted) 6. The said words were uttered in the course of conversations about the skill, competence and ethics of the plaintiff and, in their natural and ordinary meaning, meant and were understood to mean that the plaintiff was incompetent, unskilled, unprofessional and dishonest in his practice. 7. The defendants have, in consequence of the above, violated the Veterinary Profession Act and the A.V.M.A. Code of Ethics. 8. As a consequence of the above the plaintiff was and continues to be injured in his credit and reputation in his profession and has and continues to be put to legal expenses to defend the wrongful complaints made to the A.V.M.A. " 4. Starting in about October 1996, the defendants conspired together to inflict economic damage on the plaintiff's practice and did inflict such damage by making false and defamatory statements to clients and potential clients of the plaintiff and by initiating a false and malicious complaint against the plaintiff to the A.V.M.A. and by communicating false information to the A.V.M.A. The defendants continue to act in furtherance of their conspiracy and the plaintiff continues to suffer economic damage, losing about $13,000 per month . 5. The defendants, or any one of them or any combination of them, either on their own or as parties, falsely and maliciously or negligently spoke and made the following publications to the following people and/or organizations: ... (particulars omitted) 6. The said words were uttered in the course of conversations about the skill, competence and ethics of the plaintiff and, in their natural and ordinary meaning, meant and were understood to mean that the plaintiff was incompetent, unskilled, unprofessional and dishonest in his practice. 7. The defendants have, in consequence of the above, violated the Veterinary Profession Act and the A.V.M.A. Code of Ethics. 8. As a consequence of the above the plaintiff was and continues to be injured in his credit and reputation in his profession and has and continues to be put to legal expenses to defend the wrongful complaints made to the A.V.M.A. " Statements of Claim Amendments

Defamatiom The portions of the statement of claim that were struck by Master Funduk are set forth below and underlined: " 3. Both the plaintiff and the defendants are members of their professional governing body, the Alberta Veterinary Medical Association ( 'A.V.M.A.') and as such, are subject to the A.V.M.A.'s rules, bylaws and Code of Ethics. They are also subject to the Veterinary Profession Act .

Conspiracy Statement of Claims amendments Starting in about May 1996, the defendants conspired together to inflict economic damage on the plaintiffs' business and did inflict damage by making false and defamatory statements to investors or potential investors and clients of the plaintiffs and by initiating a false and malicious complaint against the plaintiff Kapoustin to the A.V.M.A. and by communicating false information to Bulgarian government authorities, the defendant National Investigative Service and Main Public Prosecutors Office of the republic of Bulgaria. The defendants continued to act in furtherance of their conspiracy and the plaintiffs continues to suffer personal injury and economic damage as a result. 5. The defendants, or any one of them or any combination of them, either on their own or as parties, falsely and maliciously or negligently spoke and made the following publications to the following people and/or organizations: ... (particulars omitted) 6. The said words were uttered in the course of conversations about the skill, competence and ethics of the plaintiff and, in their natural and ordinary meaning, meant and were understood to mean that the plaintiff was incompetent, unskilled, unprofessional and dishonest in his practice. 7. The defendants have, in consequence of the above, violated the Veterinary Profession Act and the A.V.M.A. Code of Ethics.

8. As a consequence of the above the plaintiff was and continues to be injured in his credit and reputation in his profession and has and continues to be put to legal expenses to defend the wrongful complaints made to the A.V.M.A. " 4. Starting in about October 1996, the defendants conspired together to inflict economic damage on the plaintiff's practice and did inflict such damage by making false and defamatory statements to clients and potential clients of the plaintiff and by initiating a false and malicious complaint against the plaintiff to the A.V.M.A. and by communicating false information to the A.V.M.A. The defendants continue to act in furtherance of their conspiracy and the plaintiff continues to suffer economic damage, losing about $13,000 per month . 5. The defendants, or any one of them or any combination of them, either on their own or as parties, falsely and maliciously or negligently spoke and made the following publications to the following people and/or organizations: ... (particulars omitted) 6. The said words were uttered in the course of conversations about the skill, competence and ethics of the plaintiff and, in their natural and ordinary meaning, meant and were understood to mean that the plaintiff was incompetent, unskilled, unprofessional and dishonest in his practice. 7. The defendants have, in consequence of the above, violated the Veterinary Profession Act and the A.V.M.A. Code of Ethics. 8. As a consequence of the above the plaintiff was and continues to be injured in his credit and reputation in his profession and has and continues to be put to legal expenses to defend the wrongful complaints made to the A.V.M.A. "

Statement of Claim Start Here...THE ORIGINAL CAUSES OF ACTION PLEADED Background [4] The Respondent submits that the original facts pleaded give rise to several counts of causes of action in defamation, malicious prosecution, abuse of process and conspiracy to cause damage by lawful or unlawful means. The Respondent further submits that some portion of the pleadings that are poorly articulated or difficult to understand which are in the Statements of Claim support the claims founded in conspiracy and defamation, as well as claims for exemplary or punitive and aggravated damages. [5] The Respondent has now brought before the Court a Notice of Motion in this matter requested for an order to amend a significant portion of the original pleadings and to provide him sufficient time to bring the plaintiffs pleading within all of the enumerated points referred to in Rule 19 and to do so relies on Rule 24, Rules of the Court for leave. This appears necessary to the Respondent since it appears that a cause of action arising from the facts pleaded as relates to a claim for damage to reputation, and as such is governed exclusively by the law of defamation and is justified given the fact that although the issues were substantially the same, they are not identical and substantial time has been taken and still needs to be expended to "track the differences".

Determination [6] A decision of the Alberta Court of Appeal in Peterson et al. v. Highwood Distillers Ltd. et al. (1998), 216 A.R. 83; 175 W.A.C. 83; 158 D.L.R.(4th) 569 (C.A.), affirms the principle that a court should always be generous in assessing pleadings. This principle was also recently affirmed by the Court of Appeal in Kvaerner Enviropower Inc. v. Tanar Industries Ltd. et al. , [1998] A.J. No. 1027; 223 A.R. 348; 183 W.A.C 348 (C.A.) and that every phrase or sentence or paragraph in a statement of claim need not, and cannot, disclose an independent cause of action: Alexander et al. v. Pacific TransOcean Resources Ltd. et al. (1991), 120 A.R. 22; 8 W.A.C. 22 (C.A.). The court should be concerned with matters of substance, and not of form: Operation Dismantle Inc. et al. v. Canada et al. , [1985] 1 S.C.R. 441; 59 N.R. 1; 13 C.R.R. 287; 18 D.L.R.(4th) 481; 12 Admin. L.R. 16; Colonia Life Holdings Ltd. v. Fargreen Enterprises Ltd. (1990), 1 O.R.(3d) 703 (Gen. Div.). It may be that certain paragraphs can only be relied on by the plaintiff for limited purposes: Morris v. Wiltshire , The Times Feb. 15, 1994 (C.A.).

Proposed Amendments Sought Paragraph 5 [8] In light of the appellant's written argument, the appellant has impliedly conceded to striking out the phrase "or negligently" in paragraph 5 of the Statement of Claim in Action No. 9703-01454. The appellant's counsel states at p. 2 of his brief that he agrees with the decision of the Master insofar as it applied the principle that, excepting the claims for malicious prosecution, abuse of process and conspiracy to cause damage by lawful means, all other claims made by the appellant that flow as a result of published false statements have merged in the tort of defamation. This of course, therefore, excludes the tort of negligence. Paragraphs 3 And 7 [9] The appellant cites D.B. Casson, Odgers on High Court Pleading and Practice (23rd Ed.), (London: Sweet & Maxwell: 1991), p. 143 as authority for the proposition that facts which are matters in aggravation of damages should be pleaded. McElroy v. Cowper-Smith and Woodman , [1967] S.C.R. 425, is conclusive authority to the effect that not only aggravated damages, but also punitive damages may be awarded in defamation cases where the circumstances so warrant. Even assuming that the only cause of action arising from the facts alleged is defamation, paras. 3 and 7 may be relevant to an award of exemplary or punitive damages, as it is arguable that they relate to the standard of morality or decent conduct to which members of the veterinary profession are to be held. Since the substance of the pleadings is in issue here, and not the form, the location of paras. 3 and 7 does not minimize their potential relevance to the issue of damages. Paragraph 8 [10] At p. 10 of his written submissions, counsel for the respondents, referring to the latter portion of para. 8, writes that "to the extent that these expenses flow as a consequence of the communications allegedly made by the defendants which found the defamation claim, the appellant is at liberty to apply for leave to amend his damages claim as he deems fit without reference to the alleged conspiracy". However, para. 8 of the statement of claim does not make reference to any conspiracy, but simply refers to legal expenses incurred as a result of wrongful complaints to the A.V.M.A. Even if the pleadings sound only in defamation, para. 8 would require no deletion or amendment, as the defamatory statements detailed in para. 5 include communications by the defendants to the A.V.M.A., and it is arguable that costs of the defence may be recoverable as special damages. Paragraph 4 [11] This leaves us with para. 4. Counsel for the respondents submit that defamation is the gravamen of the appellant's complaint, and that as a matter of law claims for damage to reputation are governed exclusively by the law of defamation, relying on Foaminol Laboratories Ltd. v. British Artid Plastics Ltd. , [1941] 2 All E.R. 393 (K.B.); Lonrho v. Fayed (No. 5) , [1994] 1 All E.R. 188 (C.A.) and cases cited therein, and Fulton v. Globe and Mail et al. (1996), 194 A.R. 254 (Q.B. Master); affd. with variation (1997), 207 A.R. 374; 53 Alta. L.R.(3d) 212 (Q.B.). Foaminol , supra, dealt with claims for loss of reputation caused by a breach of contract. The court in that case held that the loss of reputation is a matter for which damages cannot generally be claimed except in actions for defamation. This statement of law is much less categorical than that espoused by the respondents. It is further tempered by the court's conclusion that the mere fact that the pecuniary loss is brought about by the loss of reputation caused by a breach contract is not sufficient to preclude the plaintiffs from recovering in respect of a pecuniary loss by way of a breach of contract if such pecuniary loss can be established (at p. 400). Fulton v. Globe and Mail , supra, deals specifically with alternative claims in defamation and negligence. The appellant has already conceded that the claim in negligence cannot stand. [12] Lonrho v. Fayed , supra, involves the issue of framing a claim for damages for injury to reputation as a "lawful means" conspiracy action. At p. 195 of that decision, Dillon, L.J., states: "Justification - truth - is an absolute defence to an action for defamation, and it would in my judgment, be lamentable if a plaintiff could recover damages against defendants who had combined to tell the truth about the plaintiff and so had destroyed his unwarranted reputation." [13] The appellant argues that the pleadings support a claim in conspiracy to cause damage by lawful means. The logic espoused by Dillon, L.J., precludes such a claim in this case. Furthermore, the respondents submit that the facts set out in para. 4 do not support such a claim, since the means

alleged would be unlawful. Indeed, it is difficult to see how the facts in para. 4 could support the claim of conspiracy to cause damage by lawful means as suggested by the appellant. [14] However, the appellant goes on to argue that the fact that the respondents conspired together would constitute severe, high-handed, wanton, callous and reprehensible behaviour which would support exemplary or punitive and aggravated damage claims. Insofar as damages are concerned, para. 5 contains language sufficient to allow the appellant to lead evidence on the issue of the defendants acting in concert to effect the defamation. [15] The remaining issue is that of malicious prosecution or abuse of process. Nelles v. Ontario et al. , [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, sets out the requirements for the tort of malicious prosecution. The appellant has failed to plead one of the required elements, namely, that the proceedings in question terminated in favour of the appellant. The appellant requests leave to amend so that if the proceedings had been terminated in favour of the plaintiff, the plaintiff would have the opportunity to advance the claim. The respondent contends that the phrase "by initiating a false and malicious complaint against the plaintiff to the A.V.M.A." is simply one of the alleged modes by which the alleged conspiracy was carried out and is not a plea of an independent cause of action. The respondents go on to argue that if malicious prosecution is alleged, then that claim is essentially for damages, direct and consequential, arising from an alleged loss of reputation which are exclusively governed by the law of defamation. [16] J.G. Fleming, in The Law of Torts (9th Ed.) (Sydney: Law Book Co., 1998), discusses defamation and malicious prosecution at p. 673: "... [M]alicious prosecution ... bears close resemblance to defamation, both being infringements of essentially the same complex of interests on the part of the plaintiff. ... [T]his action [malicious prosecution] was never absorbed into the law of defamation." The respondents have not produced any authority which would negate this proposition. [17] Therefore, although it is clear that defamation largely governs claims for loss of reputation, the respondent's statement of the ambit of defamation goes too far. [18] The question whether a claim of malicious prosecution would be tenable with respect to the disciplinary proceedings in question is better left to the trial judge. Should the appellant desire leave to amend to include the missing element, the parties are invited to make submissions as to whether such an amendment is permissible. However, even if the appellant cannot amend the pleadings to meet the requirements set out in Nelles , supra, the impugned phrase may support the claim in defamation, and should not be struck. [19] The appellant also argues that certain facts relevant to the defamation claim were struck out in striking out para. 4 in its entirety. Those concerns are addressed below. Conclusion [20] The underlined portions of the statement of claim in Action No. 9703- 01454, and the identical portions of the statement of claim in Action No. 9703-00977, are struck as follows and para. 4 is amended as indicated by the bolded letters for grammatical reasons: "3. Both the plaintiff and the defendants are members of their professional governing body, the Alberta Veterinary Medical Association ('A.V.M.A.') and as such, are subject to the A.V.M.A.'s rules, bylaws and Code of Ethics. They are also subject to the Veterinary Profession Act . 4. Starting in about October 1996, the defendants conspired together to inflict ed economic damage on the plaintiff's practice and did inflict such damage by making false and defamatory statements to clients and potential clients of the plaintiff and by initiating a false and malicious complaint against the plaintiff to the A.V.M.A. and by communicating false information to the A.V.M.A. The defendants continue to act in furtherance of their conspiracy and the plaintiff continues to suffer economic damage, losing about $13,000 per month. 5. The defendants, or any one of them or any combination of them, either on their own or as parties, falsely and maliciously or negligently spoke and made the following publications to the following people and/or organizations: ... (particulars omitted) 6. The said words were uttered in the course of conversations about the skill, competence and ethics of the plaintiff and, in their natural and ordinary meaning, meant and were understood to mean that the plaintiff was incompetent, unskilled, unprofessional and dishonest in his practice. 7. The defendants have, in consequence of the above, violated the Veterinary Profession Act and the A.V.M.A. Code of Ethics.

8. As a consequence of the above the plaintiff was and continues to be injured in his credit and reputation in his profession and has and continues to be put to legal expenses to defend the wrongful complaints made to the A.V.M.A." [21] If the appellant desires leave to amend to include the missing element relating to malicious prosecution, the parties are invited to make submissions as to whether such an amendment is permissible, once the appellant has revealed the nature of the proposed amendment.

Background Continental Newspaper Interview Georgiev In August of 1996 a investigative officer of the Bulgaria's National Investigative Service and a defendant in this proceeding, one Stefcho georgiev, participated in a public interview as an police official of the Bulgarian state. Parts of that interview were repeated on television and radio programs and was partly reproduced under the headlined " Kapoustin Is An International Swindler - insists the Chief of the Economic Crime Department of the National Investigative Service" in an August 1st 1996 article published in Kontinental Newspaper a Bulgaria daily and later repeated in other dailies and weeklys throught out Bulgaria. Parts of the interview reached Canada, the United States and Germany. The interview began with the defendant providiing a description of criminal charges brought against Kapoustin in Bulgaria and his arrest in Germany on February 7th 1996. The interviewer goes on to ask: "When Mr. Kapoustin was arrested….. Mr. Nestorov [ Public Prosceutor for the City of Sofia ] said Canada and Bulgaria will struggle which country is going to bring an action against him. But it looks like Canada does not want the pharoah?" The defendant Grogiev provided the following official reply: "His cases there [Canada] are old and unclear. In Canada he did not form the company "LifeChoice" and did not dare to lie so insolently." When asked by the interviewer if "..the accusations against Kapoustin are more serious in comparison with other creators of pyramids?" the following official answer was given by the defendants; "the…Canadian……proves to be an international swindler…..Kapoustin is a famous swindler for Interpol. Even in Canada he was playing "games of happiness". According to the data of Canadian authorities he was convicted of sexually molesting children….The accustaions against in Bulgaria are three: for misappropriation of 5,000,000 USD and embezzlement of 4,800.000 USD that he tranferred to the Carribean Islands with 6 fake invoices to buy the drug Factor - R, produced in Bulgaria! …he [Kapoustin] did not fill up exact tax declarations, with which he injured the state budget, the Sofia City Community and the Tax Department with millions. Attached to the case there are claims from Canadian companies which suffered damages of 470,000 USD…." When the defendant is asked a question concerning the Plaintiffs oil and waste refining equipment and facility installed on the Defendant Bulgarias property in the region of Tsarimir, Bulgaria, the defendant had this to say: "About the refinery he [Kapoustin] bought a second ahand installation. It can not bring the dreams of 10.5 million USD." The Defendant went on to speak about the products and marketing center of the Plaintiffs located at "Krakra" [a leasehold owned by the defendant Bulgaria] as follows: "At "Krakra" he [Kapoustin] made some improvements, that are on the account of the Ministry of Health and the National Centre for Parasitic and Infectious Diseases." The Defendant went on to speak about the medical products of the Plaintiffs tradmenarked as "Factor - R" havin the following to say: "The drug [medicine] "Factor- R" is sold without permission of the Bulgarian authorities and is actually the medicine "Respivax", plus vitamin C." The Defendant goes on to speak about the Plaintiffs financing the Defendant governments expiditions to it Antartice research station as follows: "He [Kapoustin] financed the expidition of the Atlantic Club with 50,000 USD. This is not his money, but of the investors" The interviewer follows with the following last question:

"You are an investigator who watches cases against pharoahs. Is there a possibility that Kapoustin shoulb be extradited to Bulgaria and shall we let him out on bail and will there ever be a [judicial criminal] process?" The defendant provided the following response: "My proposal to him [Kapoustin] since he is still in Germany, is to think how he is going to refund at least part of the money of the decieved investors, because that's the only thing that could possibibly mitigate his guilt." Argument Mental Distress (vi) Mental Distress [157] As the defamation become more and more public and the defendants demands for money became more frequent Tracy began to experience problems with depression and insomnia as time went on. Even though she started treatment the problems still persisted and continue to persist. In the 1997 when Nicholas fell into a coma the result of an undiagnoed diabetic condition, Tracy became worse and was in serious emotional and physical trouble. Again she received treatment and medication as conditions improved of Nicolas were stabilized, so did Tracy's mental and physical condition although not completely . Again, when he received notice of Michael's sentence of 23 years she became symptomatic. [158] These problems are stress-related and Tracy was not susceptible to them before she experienced the defamamtion and threats of vilonce against her husband, her son and family generally. The evidence on this is neither meagre or vague as to how Tracy and Nicholas were and only naturally could be affected by their illness in either a nonpecuniary or pecuniary sense. No doubt Tracy was upset and anxious and no doubt her depression and inability to sleep or properly function were not only most unpleasant but also had a deep and long lasting effect on her and Nicholas. As to an alternative to criminal intent there is a cause of action in negligence, such problems of Tracy or Nicholas was within the reasonable contemplation of those responsible, particularly the officers employeed by the Defendant who undertook to provide interviews or have materials published they knew to be deeply humiliatiing and untrue or when they or other agents of the Defendant spoke to Tracy or other members of the family and demanded money for the safety or possible release of Nicholas's father Michael.

Practice - Amending Pleadings There is similarity between the claims. The only difference is that Action No. S004040 involves striking of the words "or negligently" whereas Action No. S5440 contains no such words. Because of the similarity between the claims, it is therefore only necessary to set out the pertinent allegations contained in one of the Statements of Claim ( Action No. S004040). The pleadings which were struck by Master Funduk are underlined. The following reasons will refer to the paragraphs as numbered below, and will apply equally to the similar paragraphs in the second claim despite different numbering. " Argument Statement of Claim - Tort Interference With Contracts the Statement of Claim alleges that the defendants "... caused the alleged letter to be published by mailing or delivering the letter to approximately one hundred thirty employers, managers and adjusters in the insurance industry in Calgary, Alberta". The duty to defend then does arise with respect to the allegation of libel and defamation. [30] The next question to consider is whether the applicants had knowledge of the falsity of the statements. There is no allegation in the Statement of Claim that the applicants had such knowledge. While the respondent submits that the alterations made by the applicants make it "self-evident" that they had knowledge, the actual pleadings must be determinative. The Citiclaims action has not limited the claim to exclude negligent statements. This is unlike the United States decision cited by the respondent, E.E.O.C. v. Southern Publishing Co. Inc. (1988), 705 F.Supp. 1213 (S.D. Miss.) (respondent's authorities, Tab 4) where the plaintiffs alleged that the statement in question was "known ... to be untrue ..." (see p. 1219).

[31] The above reasoning is also applicable to the final question concerning allegations that constitute a claim that the applicants violated the Criminal Code . There is no allegation that the statements were made with knowledge that they were untrue or that they wilfully violated the Criminal Code . [32]. This applies to all situations in which loss is intended according to Brown and Menezies, Insurance Law in Canada (2nd Ed.), at 125 and 126. The authors refer to cases of intentional destruction of property and similar acts. In my view, this should only be raised with respect to actionable loss which is caused intentionally. Any other interpretation would leave an insured without insurance for all acts that were intentional but were not intended to give rise to a tortuous obligation to a third party. Assitance In Criminal Matters International - Practice - Assistance in Criminal Matters Summary: [261]

In R. v. Dawson (D.) (1999), 248 A.R. 82 (QB) the RCMP obtained a search warrant under the Mutual Assistance in Criminal Matters Act to search the plaintiffs premises. A search was conducted and numerous records and things were seized. A notice of hearing to consider the execution of the search warrant was served to the plaintiffs. The Crown applied for an order sending the items seized to the United States, who had requested assistance under the Act. The Alberta Court of Queen's Bench allowed the application.

International Law - Criminal Assitance - Nexus Jurisdiction [262]

Sovereignty - Incidents of - Immunity - Exceptions - Proceedings relating to commercial activity of foreign state ( acta gestionis) - The Supreme Court of Canada held that United States was immune from the jurisdiction of domestic labour tribunals - The court opined, however, that a bare contract for employment services at the base was generally commercial activity, such that the employees were entitled to turn to Canadian courts for enforcement of their employment contracts.

Criminal Law - Mutual Assistance in Criminal Matters Act [263]

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - Canada sent numerous letters naming the Plaintiff Kapoustin and other and requesting assistance from the Defendant Bulgaria for an investigation in British Columbia unrelated to the plaintiffs. The requests were not made under the Mutual Assistance in Criminal Matters Act - On the basis of these letters, the defendant an R.C.M.P. officer, provided and made represenations he knew to be untrue before police authorities of Bulgaria. The R.C.M.P. knew the information would personally injure the plaintiffs and lead to Bulgaria authorities to search, seize and close the plaintiffs offices and to seize their property in Bulgaria. The slander or libel and misrepresentations were made by Mr. Doornbos to aid a Canadian investigation in British Columbia. The July 7th 1995 Letter of Request was framed to Bulgaria in the context of a Warrant from Canada to arrest and prosecute the Plaintiff Michael Kapoustin in aid of a British Columbia police investigation into the activities of a religious organnization the "Society of Kabbalarians". In Canada, under the Act when observed, a search and seizure order by a court was required and a Crown application to send the information or objects seized to Bulgaria - Plaintiffs argue that while the information appeared to be in proper form, with a careful reading, it is clearly devoid of facts connecting Kapoustin to the investigation in British Colmubis. The Letter of Resuest embodied the personal conclusions and beliefs of Mr. Doornbos. The Letter of Request and other written correspondences of the R.C.M.P. constitute a libel, the personal communications of Mr. Doorbos to Bulgaria slander the plaintiffs on numerous occassions. The expressions used and construction of the words express a real malice of the officer towards the Plaintiffs, particularly Kapoustin and by inference the Jewish faith. Plaintiffs are of the view that, had there been judicial supervision over the R.C.M.P. and Mr. Doornbos and his investigation of Kapoustin , that any judge would not have found reasonable grounds upon which he could issue a search warrant or grant a sending order for the particular information and objects collected in the province on the direction of Doornbos. The investigation in the Province was unrelated to the Plaintiffs, and in

naming the Plaintiffs as connected to that particular R.C.M.P. investigation the Ministry of the Attorney General caused the plaintiffs wrongful personal injury. Criminal Law - Search Warrants [264]

Special powers - Search warrants - General - plaintiffs discussed in their pleadings the purpose of the Mutual Assistance in Criminal Matters Act -.

Criminal Law - Public Disclosure - Sending Abroad - Tort of Privacy [265]

Special powers - Power of seizure - Disclosure of things seized - Plaintiffs allege that the defendant R.C.M.P. officer Mr. Doornbos made unlawful disclosures to the Defendant Bulgaria. No search warrant was issued or other judicial oversight secured as required under the Charter and Mutual Assistance in Criminal Matters Act. Plaintiffs argue that the information gained in British Columbia without a search warrant was shared with the foreign authority prior to release by a court of this province of the information. The data and items were obtained in British Columbia. There is no warrant or sending order was issued by a court.-Was officer required to observe the Canadian law? Breach of fiduciary when making unlawful disclosure that he knew would harm the plaintiffs.

Practice - Adding Parties - Charter s. 34 - Slander [266]

Parties - Adding or substituting parties - Adding or substituting crown defendants - Circumstances when allowed - Charter of Rights and Freedoms s. 34 -The plaintiffs sued the foreign defendants for inter alia conspiracy - alternatively- defamation. The defendant Derek A. Doornbos is an R.C.M.P. official who it is alleged on or about May 15th 1995 utterred a slander to the Defendant Bulgaria that the Plaintiff Kapoustin was convicted in British Columbia on mutliple counts of sexual assault on children. The slander was committed while Doornbos acted in his capactity as an official of the Canadian governemnt. His remark was accepted for fact and repeated to agencies of Bulgaria as if fact and published in numerous newpaper articles and repeated on television and radio. Plaintiffs seek to add as defendant the Attorney General of Canada .

Practice - Adding Parties - Charter s. 34 - Libel [267]

Parties - Adding or substituting parties - Adding or substituting crown defendants - Circumstances when allowed - Charter of Rights and Freedoms s. 34 - The plaintiffs sued the foreign defendants for inter alia conspiracy - alternatively- defamation. The defendant Derek A. Doornbos is an R.C.M.P. official who on or about July 7th 1995 provided Bulgaria a Letter of Request that discuseed the Plaintiffs and their commercial activities in the province. It is alleged the Letter of Request wrongly made conclusions of law and statements of fact that were fraudulent or at best misleading statement made to appear as fact. The R.C.M.P. commited a libel against the plaintiffs and their commerical activities in or connected to British Columbia and Bulgaria. The Letter of Request advised Bulgaria that the Plaintiffs were members of a pseudo-religious Jewish sect based in British Columbia, Canada and that the plaintiffs companies were part of an international criminal activuty to laudry the proceeds of crime into British COlumbia. The libel was committed while Doornbos acted in his capactity as an official of the Canadian governemnt. The Letter of request was accepted as fact and repeated to agencies of Bulgaria as if fact and later published in numerous newpaper articles and repeated on television and radio. Plaintiffs seek to add as defendant the Attorney General of Canada

Tort Law -Defamation - Malicious Arrest - Prosceution - False Impriosnment Jury Judgments and orders - Summary judgments - Jurisdiction or when available - Section 64(1) of the Court of Queen's Bench Act stated that "[a]n action for defamation, malicious arrest, malicious prosecution or false imprisonment shall be tried with a jury, unless the parties waive trial with a

jury" - The Manitoba Court of Appeal held that s. 64(1) did not preclude summary dismissal of a defamation action - See paragraphs 7 to 12. Authors and Works Noticed : [268]

Bowker, W.F., The Uniform Survival of Actions Act (1964), 3 Alta. L. Rev. 197, pp. 198 to 201 [para. 73].

[269]

Coopers-Stephenson and Saunders, Personal Injury Damages in Canada (1981), p. 389 [para. 71].

[270]

Driedger, E.A., Construction of Statutes ( 3rd Ed. 1994), p. 131 [para. 8].

[271]

Englehart, K.G., Proof of Future Events: In Support of the Simple Probability Burden of Proof (1987), 8 Advocates Quarterly 163, generally [para. 30].

[272]

Klar, Tort Law, p. 10 [para. 15].

[273]

Waddams, S.M., Law of Damages (2nd Ed. 1995), generally [para. 17].

Authors and Works Noted [274]

Fleming, "Probabilistic Causation in Tort Law" (1989), 68 Can. Bar. Rev. 661.

[275]

Fleming, "Probabilistic Causation in Tort Law: A Postcript" (1991), 70 Can. Bar. Rev. 136.

Authors and Works Noticed: [276]

Fox, Hazel, State Immunity: The House of Lords' Decision in I Congreso Del Partido (1982), 98 L.Q.R. 94, generally [para. 16].

[277]

Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States (1951), 98 B.Y.I.L. 220, refd to. [para. 16].

[278]

The Respondent has no difficulty in holding that the present case falls to be resolved at common law and not under the State Immunity Act 1978. It would not be unreasonable to hold that the sending of the memorandum was done, to quote the terms of s. 16(2), "by ... the armed forces of a state while present in the United Kingdom".

[279]

[16] In relation to the common law as it has now developed the distinction has to be made between claims arising out of acts done in the exercise of a State's sovereign authority and claims not so arising, that is typically claims arising out of commercial transactions such as might be undertaken by private individuals. Expressed in the traditional Latin labels, which are convenient as words of reference but do not assist significantly in the application of the distinction, the distinction is between matters " jure imperii" and matters "jure gestionis". The "restrictive" theory which through the decisions in Ship Phillippine Admiral, Re , [1977] A.C. 373 (P.C.) and Playa Larga (Cargo Owners) v. I Congreso del Partido (Owners) et al. , [1983] 1 A.C. 244, has been adopted into the laws of the United Kingdom calls for this distinction to be made, but it is one which in some cases may be subtle and delicate to define and has indeed been criticised as one which may not be workable (Lady Hazel Fox, State Immunity; The House of Lords' Decision in I Congreso Del Partido (1982), 98 L.Q.R. 94). Indeed Professor Lauterpacht ( The Problem of Jurisdictional Immunities of Foreign States (1951), 98 B.Y.I.L. 220, 222) refers to the difficulty of defining the distinction as the main argument in favour of an absolute immunity from jurisdiction. In the same article Professor Lauterpacht suggests that the immunity of foreign states may have derived from the traditional immunity of a sovereign state from suit in its own courts, a principle which has more recently been so diminished as to question the validity of the principle which has been derived from it. But that is not an analysis which has been taken up in the leading cases. It has been recognised that there is an international principle that sovereign states cannot claim jurisdiction over each other. In I Congreso Lord Wilberforce was content to find the basis for this

in the ( albeit analytical) "maxim par in parem non habet imperium". More generally, as can be seen from the speeches in Compania Naviera Vascongada v. Cristina S.S. , [1938] A.C. 485, the principle has been attributed not only to that maxim but to such ideas as comity or reciprocity, the practicability of enforcement, or the respect for the dignity of other states. As matters stand I consider that we have to proceed upon the assumption that the eventual basis for the principle is to be found in such international considerations. But however the principle may have come about in the international context, the recognition that in practice states may engage in activities which do not truly rank as acts of sovereign power has encouraged exceptions to be made from an absolute immunity for all acts. But that course has given rise to the difficulties of classification already noticed. Transactions of a trading or commercial character may be seen as descriptive of the broad category where the exceptions will be found, but even that will not provide a precise definition of them. However we are not called upon in the present case to question the distinction. Indeed to innovate upon it in the domestic context would require to be the work of Parliament, and Parliament has already sought to formulate a distinction in the Act of 1978 . Difficult as the distinction may be at common law, we have to do the best we can to apply it. [280]

The solution in any particular case where the question of state immunity arises at common law has to be one of the analysis of the particular facts against the whole context in which they have occurred. It is the nature and character of the activity on which the claim is based which has to be studied, rather than the motive or purpose of it. The solution will turn upon an assessment of the particular facts. The line between sovereign and non-sovereign state activities may sometimes be clear, but in other cases may well be difficult to draw. In some cases, as was noticed in Reference Re Canada Labour Code and State Immunity Act (Can.) , [1992] 2 S.C.R. 50; 137 N.R. 81; 94 I.L.R. 264, 283, even when the relevant activity has been identified it may have a double aspect, being at once sovereign and commercial, so that it may then have to be determined precisely to which aspect the proceedings in question relate.

[281]

The Defendant has put stress on an international tribunal, and freedom of access to its court, in particular inferring the European Court and the European Convention on Human Rights and Fundamental Freedoms, the argument is certainly attractive for the Defendant. But it seems that, at least under reference to the European Convention where the rights in question are essentially rights open to an individual against the state, the present case is concerned with a distinct situation where the European Court lacks any jurisdiction to provide the plaintiffs with a remedy in a matter where the domestic courts of Canada normally have jurisdiction to provide remedy. Insofar as a right of access in an international context by a citizen of one state to the courts of another state is concerned, such a right would require to be measured against the demands of policy, comity and international law. At least in the circumstances of the present case the Respondent does not consider that the application of the established immunity would be reasonable or proportionate.

Authors and Works Noticed: [282]

Ailes, Edgar H., Limitation of Actions and the Conflict of Laws (1933), 31 Mich. L. Rev. 474, pp. 487 [para. 80]; 494 [para. 81].

[283]

Cheshire and North, Private International Law ( 12th Ed. 1992), pp. 74, 75 [para. 76].

[284]

Cook, Walter Wheeler, The Logical and Legal Bases of the Conflict of Laws (1942), p. 166 [para. 77].

[285]

Dicey and Morris, The Conflict of Laws (11th Ed. 1987), rule 205, pp. 1365, 1366 [para. 28].

[286]

Dutoit, Bernard M., Memorandum, Hague Convention on Traffic Accidents, Actes et documents de la Onzième session, p. 20 [para. 44].

[287]

Hancock, Moffat, Case and Comment on McLean v. Pettigrew (1945), 23 Can. Bar Rev. 348, generally [para. 27].

[288]

Huber, Ulrich, De conflictu legum diversarum in diversis imperiis (Essay 1686), generally [para. 80].

[289]

Lorenzen, Ernest G., Selected Articles on the Conflict of Laws (1947), pp. 136, 181 [para. 80].

[290]

Lorenzen, Ernest G., Huber's De Conflictu Legum ( 1919), 13 Ill. L. Rev. 375, reprinted, Lorenzen, Ernest G., Selected Articles on the Conflict of Laws (1947), p. 136 [para. 80].

[291]

Lorenzen, Ernest G., Story's Commentaries on the Conflict of Laws - One Hundred Years After (1934), 48 Harv. L. Rev. 15, reprinted, Lorenzen, Ernest G., Selected Articles on the Conflict of Laws ( 1947), p. 181 [para. 80].

[292]

Michel, M. Jean, La Prescription Libératoire en Droit International Privé (Thesis 1911), generally [para. 81].

[293]

Swan, John, The Canadian Constitution, Federalism and the Conflict of Laws (1985), 63 Can. Bar Rev. 271, p. 309 [para. 71].

Authors and Works Noticed: Clifton and Grimous, New Dictionary of the French and English Languages [para. 8]. Harrap's New Shorter French and English Dictionary (1975) [para. 8]. Gatley on Libel and Slander (7th Ed.), para. 95, note 76 [para. 38]; para. 983 [para. 16]; para. 1014 [para. 27]; para. 1081 [para. 45]. Mayer, Michael F., The Performing Arts and Defamation, (1969), 1 Performing Arts Review 73, 81 [para. 20]. Prothotics Corp. v. Bain (1995), 106 Man.R.(2d) 318 (QBM)

Authors and Works Noticed: Brown, Raymond E., The Law of Defamation in Canada (1987), generally [para. 12]. Dolden, Eric A., Article re Waiver of Privilege, 36 C.P.C.(2d) 56, p. 79(1) [para. 21]. Sopinka, John, and Lederman, Sydney N., The Law of Evidence in Civil Cases (2nd Ed. 1992), p. 719 [para. 4]. Wigmore on Evidence (McNaughton Rev. 1961), vol. 8, pp. 635 to 636 [para. 8]. [12] She cites Hoste v. Victoria Times Publishing Co. (1889), 1 B.C.R. (Pt. 2) 365 (S.C.), and Brown, The Law of Defamation in Canada (1987 Ed.), as authorities for the proposition that a party who has defamed another should remedy the situation by swiftly making and publishing an unconditional apology. [21] E.A. Dolden, in his article Waiver of Privilege , found in 36 C.P.C. (2d) 56, said (paraphrased, in capsule form) at page 79(1): "In the context of redacted or partially disclosed documents, the court can and will order full disclosure. The rationale in both situations is that the utilization of merely part of the contents of any document or professional advice may be unfair or may be misleading to the trier of fact. The general rule which applies to references to privileged documents at trial, whether in oral testimony or where a document becomes an exhibit, is that disclosure of part abrogates privilege in respect of the whole."

Cases And Authorities Cited [3] By the defendant/applicant: Rules 115 and 129 of the Alberta Rules of Court ; Zebroski v. Jehovah's Witnesses (1986), 71 A.R. 259 (Q.B.), affd. (1988), 87 A.R. 229 (C.A.); Collins v. Jones , [1955] 2 All E.R. 145 (C.A.); Gaskin v. Retail Credit Co. , [1961] O.W.N. 171 (H.C.) and Lougheed v. Canadian Broadcasting Corp. , [1978] 4 W.W.R. 358; 11 A.R. 55 (T.D.), varied [1979] 3 W.W.R. 334; 15 A.R. 201; 98 D.L.R.(3d) 264 (C.A.); Rosen v. Alberta Motor Association Insurance Co. et al. (1993), 146 A.R. 219 (Q.B.); Moss v. Boisvert et al. (1990), 107 A.R. 385; 74 Alta. L.R.(2d) 344 (Q.B. Master); Drake v. Overland and Southam Press Ltd. (1978), 14 A.R. 190; 90 D.L.R.(3d) 415 (T.D.); Magnotta Winery Ltd. v. Ziraldo , [1995] O.J. No. 2619; 25 O.R.(3d) 575 (Gen. Div.); Duke et al. v. Puts , [1997] S.J. No. 756; 161 Sask.R. 299 (Q.B.); Finnamore v. Sun Publishing Co. (1993), 77 B.C.L.R.(2d) 293 (S.C.); R.E. Brown, The Law of Defamation in Canada , 1987, Carswell, Vol 2 pp. 883 ff.

[4] By the plaintiff/respondent: Brown, The Law of Defamation in Canada (1994, 2nd Ed.) p. 19-14; Magnotta Winery Ltd. v. Ziraldo (1995) 25 O.R.(3d) 575 (H.C.); Duke v. Puts [1997] S.J. No. 756; 161 Sask.R. 299 (Q.B.). [5] By the Court: Paquette v. Cruji (1979), 26 O.R.(2d) 294 (H.C.); Benson v. Versa Services Ltd. et al. [1997] B.C.J. No. 2648; B.C.T.C. Uned. G10 (S.C. Master); Guccione v. Bell et al. [1998] A.J. No. 822; 229 A.R. 365 (Q.B. Master); Lazarus v. Pentsche Lvfthansa A.G. , [1985] 1 N.S.W.L.R. 188 (S.C.). The Kapoustin's, in two counts of a mutliple count claim, have sued the defendants in defamation and conspiracy. They allege that, during a period from May 1995 to March 2001, officials and employees of the defendant, made private or public statements and contacted thousands of investors who had entered into agrrements with companies of the Plaintiffis for an exchange of corporate shares of LifeChoice International A.D. for depositary receipts contracts owned by them, and engaged in a conspiracy by way of a "smear campaign" to injure the plaintiff's business by publicly and privately making and having published false statements to the following effect: - the plaintiff's companies were not a good company to deal with; - the principal. Michael Kapoustin was a convicted criminal in Canada and disreputable; - the plaintiff's operations in British Columbia and elsewher were criminal organisations and money laundering schemes as confirmed by Canadian police authorities; - the plaintiff's product Factor-R is a "scam"; - the plaintiff's oil and waste recycling business was also a "scam"; - the plaintiff's companies LifeChoice et al was a "pyramid " company engaged in criminal fraud; - the plaintiff's companies were not engaged in any real commercial activity; - the plaintiff's equipment has no value and was useless junk; - the plaintiff's companies would not honour any of their contracts; - the plaintiff's warranty was not valid; Cases Noticed [294]

Block Brothers Realty Ltd. v. Mollard (1981), 27 B.C.L.R. 17 (C.A.), refd to. [para. 8]. Regas Ltd. v. Plotkins, [1961] S.C.R. 566, refd to. [para. 9].

[295]

Hal Commodities Cycles Management v. Kirsh ( 1993), 17 C.P.C.(3d) 320 (Ont. Gen. Div.), refd to. [para. 10].

[296]

Cummings v. Ontario Minor Hockey Association ( 1979), 26 O.R.(2d) 7 (C.A.), refd to. [para. 17].

[297]

Ladies of the Sacred Heart v. Armstrong's Point Association (1961), 36 W.W.R.(N.S.) 364 (Man. C.A.), refd to. [para. 17].

[298]

Porter v. Freudenberg, [1915] 1 K.B. 857 ( C.A.), refd to. [para. 22].

[299]

Williston Basin State Bank v. Shearer and Wall (1983), 53 A.R. 121; 28 Alta. L.R.(2d) 341 (Q.B.), refd to. [para. 24].

[300]

Alexander Hamilton Institutes v. Chambers, [1921] 3 W.W.R. 520 (Sask. C.A.), refd to. [para. 25].

[301]

Bondholders Security Corp. v. Manville, [1933] 4 D.L.R. 699 (Sask. C.A.), refd to. [para. 26].

[302]

Henriques v. Dutch West India Co. (1728), 2 Ld. Raym 1532, refd to. [para. 26].

[303]

Lazard Brothers & Co. v. Midland Bank Ltd., [1933] A.C. 289 (H.L.), refd to. [para. 26].

[304]

Skyline Associates v. Small et al. (1974), 50 D.L.R.(3d) 217 (B.C.S.C.), refd to. [para. 28].

[305]

Von Hellfeld v. Rechnitzer (E.), [1914] 1 Ch. 748, refd to. [paras. 28, 34].

[306]

Canadian Pacific Railway v. Ottawa Fire Insurance Co. (1906), 39 S.C.R. 405, refd to. [para. 29].

[307]

Robinson Engineering Co. et al. v. Wasabi Resources Ltd. (1988), 93 A.R. 321; 32 C.L.R. 243 (Q.B.), refd to. [para. 30].

[308]

Skyline Associates v. Small et al. (1976), 56 D.L.R.(3d) 472 (B.C.C.A.), refd to. [para. 31].

[309]

United Services Funds v. Richardson Greenshields of Canada Ltd. (1987), 16 B.C.L.R.(2d) 187 (S.C.), refd to. [para. 32].

[310]

Society Brand Clothes Ltd. v. Amalgamated Clothing Workers of America, [1931] S.C.R. 321, refd to. [para. 33].

[311]

Wenlock v. River Dee Co. (1883), 36 Ch. D. 675, affd. 10 App. Cas. 354 (H.L.), refd to. [para. 34].

[312]

Arab Monetary Fund v. Hashim (No. 3), [1991] 2 A.C. 114 (H.L.), refd to. [para. 35].

[313]

Chaff and Hay Acquisition Committee v. Hemphill (J.A.) and Sons Pty. Ltd. (1947), 74 C.L.R. 35 (Aus.), refd to. [para. 36].

[314]

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 4 C.C.L.T.(2d) 1; 43 C.P.C.(2d) 105; 49 B.C.L.R.(2d) 273; 74 D.L.R.(4th) 321; [1990] 6 W.W.R. 385, refd to. [para. 40].

[315]

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

[316]

Korte et al. v. Deloitte, Haskins & Sells et al. (1993), 135 A.R. 389; 8 Alta. L.R.(3d) 337 (C.A.), refd to. [para. 40].

[317]

Tolofson v. Jensen (1994), 51 B.C.A.C. 241 (SCC); 84 W.A.C. 241

Words and Phrases [318]

Functionary - In the context of an international law case, the Ontario Court of Appeal concluded that a "functionary" included government officials, civil servants and bureaucrats - See paragraph 32.

Affidavit - Practice - Hearsay Rule Evidence Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - attempting to use the evidence to prove a case because she could not recall or did not have direct knowleadge of what happened - Accordingly, the evidence was not necessary Further, the evidence did not meet the criteria of reliability - Additionally, a superior assisted the her with the information in the record -

Find :Gill v. Gill et al. Temp. Cite: [2000] B.C.T.C. TBEd. JN.024 British Columbia Supreme Court