Dessaules v The Republic of Poland,

• Judge: Taschereau J.
• Docket Number: Case No. 24
• Date: 22 June 1944
• Court: Supreme Court (Canada)

Canada, Court of King's Bench of Quebec.

Supreme Court.

(Errol McDougal, Francoeur, Bissonette, Prevost and Stuart McDougal in Quebec Court of King's Bench.)

(Rinfert, C.J.C.; Kerwin, Hudson, Tascherau and Rand, JJ., in Supreme Court of Canada.)

Case No. 24

Dessaulles

and

Republic of Poland.

Jurisdiction — Immunity of Foreign Sovereign State — Implied Waiver — Institution by State of Proceedings Before Another Municipal Tribunal — Set-Off.

The Facts.—The plaintiff was a barrister of the Montreal bar and sued the Republic of Poland for fees for professional services and for an account. It appeared that he had acted as legal adviser to the Polish Consulate and had also represented various nationals of Poland who had been sent to him. The defendant State asked for the action to be dismissed on the ground that, the Republic of Poland being a sovereign State unwilling to submit to the jurisdiction, the Court had no jurisdiction to hear the case. The plaintiff argued that since the defendant State had through its Consul instituted proceedings against him before the Council of the Bar by lodging a complaint and information before the Syndic of that body, the defendant had thereby waived its rights and submitted to the jurisdiction and could not now deny his right to counterclaim on the same facts. The plaintiff further asked for a prohibition to be issued to the Council of the Bar prohibiting them from proceeding further until after judgment in the present case.

The trial Judge held that the plaintiff was entitled to summon the defendant in order to have it declared that he had fulfilled his obligation to render an account, and that the defendant's sovereign immunity did not apply at this stage of the proceedings.

Held (on appeal to the Quebec Court of King's Bench): that the action should be dismissed for want of jurisdiction. This decision was affirmed on further appeal to the Canadian Supreme Court.

The Quebec Court of King's Bench, per Errol McDougal, J. (Francoeur, Bissonnette, Prevost and Stuart McDougal, JJ., concurring), said: “Lying at the root of the question now submitted to this Court is a principle of public international law as universal in its application as it is peremptory in its effect. [His Lordship then examined the judgments of Brett, L.J., in The Parlement BelgeELR (1880), 5 P.D. 197, of Lord Esher, M.R., in Mighell v. Sultan of JohoreELR, [1894] 1 Q.B. 149, and of Maclennan, J., in the American case of Brown v. S.S. Indochine (1922), 21 Ex. C.R. 406.]

“Recognizing the force and weight of these authorities in bar of his right [of] action, the respondent seeks to offset the application thereof to the present action by urging that the acts of the appellant's Consul import a renunciation of the...