Extract
Gouvernement de la République Démocratique du Congo v. Venne, [1971] S.C.R. 997 (1971)
Supreme Court of Canada
Gouvernement de la République Démocratique du Congo v. Venne, [1971] S.C.R. 997Date: 1971-05-31Le gouvernement de la République démocratique du Congo Appellant;andJean Venne Respondent.1970: October 22; 1971: May 31.Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.ON APPEAL FROM THE COURT OF QUEEN'S BENCH, APPEAL SIDE, PROVINCE OF QUEBECInternational law-Sovereign immunity-Action by architect to recover from foreign State fees for services-Declinatory exception-Waiver of immunity.The respondent, an architect, claimed to have been retained on behalf of the appellant government for the purpose of making preliminary studies and preparing sketches in relation to the national pavilion which the appellant proposed to build at Expo 67. The Congo decided not to proceed with the pavilion. The appellant filed a declinatory exception whereby it claimed that, by reason of its status as a sovereign state, it could not be impleaded in the Quebec Courts. The material before the Courts consisted of the declaration or claim, the declinatory exception and two formal admissions: that the appellant had accredited its chargé d'affaires as its commissioner general to the exhibition and also that the Democratic Republic of Congo is a sovereign State. The exception was dismissed by the trial judge, and his judgment was upheld by the Court of Appeal. The government of the Congo appealed to this Court.Held (Hall and Laskin JJ. dissenting): The appeal should be allowed.Per Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Spence and Pigeon JJ.: The record as a whole discloses that the appellant's employment of the respondent was an act done in the performance of a sovereign act of state. It follows that the appellant could not be impleaded in the Courts of this country even if the so-called doctrine of restrictive sovereign immunity had been adopted in our Courts. Cases concerning sovereign immunity decided in the Courts of the United States in recent years are of little or no authority in Canada.The proposition that a defendant can be taken to have submitted to the jurisdiction by entering a plea to the effect that it is not subject thereto, cannot be accepted. In any event, a sovereign state is not to be held to have submitted to a sovereign jurisdiction unless the submission be made in the face of the Court, coupled with a request that such jurisdiction be exercised.Per Hall and Laskin JJ., dissenting: Resort to applicable rules of procedure for the purpose of asserting immunity and contesting jurisdiction cannot be converted into a submission to the Court's authority to deal with the merits. To be effective, waiver must be made in the face of the Court and at the time the Court is asked to exercise its jurisdiction.The Court is faced with an unqualified contention that a sovereign state cannot as such be impleaded regardless of the activity in which it is engaged and out of which a suit against it is brought in a foreign domestic Court. To allow the declinatory exception would thus be to reaffirm the doctrine of absolute immunity. That doctrine is spent. It would be wrong to revive it on any view of a deficiency of evidence to overcome any suggested presumption that when a soverei...See the full content of this document
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