Gouvernement de la République Démocratique du Congo v Venne,

• Judge: Laskin J.J.,Laskin J.,Ritchie J.,Hall
• Date: 31 May 1971
• Court: Supreme Court (Canada)

Canada, Supreme Court.

(Fauteux C.J.C., Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.)

Government of the Democratic Republic of The Congo

and

Venne

Sovereign immunity — Foreign State — Restrictive theory of sovereign immunity — State obtaining services of architect for the construction of foreign State's national pavilion at exhibition — Whether a public or a commercial act — Whether State entitled to sovereign immunity in action by architect for his fees — The law of Canada

Summary: The facts:—The facts are set out in the report of the judgment of the Quebec Court of Queen's Bench, Appeal Side (above, p. 1), which rejected the claim of the Government of the Congo to sovereign immunity in an action brought by an architect to recover his fees for services rendered in connection with the construction of the Congo national pavilion at the Expo '67 exhibition. The Government of the Congo appealed.

Held (Hall and Laskin JJ. dissenting):—The appeal was allowed.

(1) The Democratic Republic of the Congo had acted in a sovereign rather than a commercial capacity in securing the services of Mr Venne and was therefore entitled to sovereign immunity. The fact that the Government had acted through its diplomatic representatives in Canada and its Department of Foreign Affairs was evidence of the sovereign nature of the act.

(2) Since the Government was thus entitled to sovereign immunity even under the restrictive theory it was unnecessary to determine whether that theory had become part of Canadian law.

(3) The question whether a contract was a purely private and commercial act or a public act done for sovereign purposes should be determined, in so far as it might be relevant, by the Court in the light of all the evidence without placing on either party the burden of rebutting any presumption about the nature of the transaction.

per Laskin J., (dissenting) with whom Hall J. agreed: The absolute theory of sovereign immunity was no longer accepted by most States and could not be regarded as part of international law. The restrictive theory should now be applied in Canada. It was wrong to presume from the fact that the Government had acted through its diplomatic representatives that the contract thus entered into was a sovereign act. At this stage of the proceedings there was insufficient evidence to determine whether the transaction was to be regarded as sovereign or commercial.

The text of Laskin J.'s dissenting judgment commences on p. 34. The fallowing is the text of the judgment of the majority of the Court, delivered by Ritchie J.:

This is an appeal from a judgment of the Court of Appeal of the Province of Quebec dismissing an appeal from a judgment of the Superior Court of Montreal which disallowed the appellant's declinatory exception whereby it had claimed that, by reason of its status as a sovereign State, it could not be impleaded in the Quebec Courts.

The respondent is an architect who claims to have been retained between February, 1965 and March, 1966, on behalf of the appellant for the purpose of making preliminary studies and preparing sketches in relation to the national pavilion which the Republique Democratique in Congo (hereinafter called ‘The Congo’) proposed to build at ‘Expo 67’. The respondent's declaration incorporated by reference an unsigned copy of a contract, pursuant to which he claims to have been employed, and also certain sketches of the proposed pavilion which he claims to have furnished to the appellant. The respondent prepared a bill of $20,000 for services rendered which he subsequently reduced to $12,000 and which was not paid because the Congo decided not to proceed with the pavillion.

The appellant has not denied any of the allegations contained in the declaration and no evidence whatever was called by either party, but the following admissions made on behalf of the respective parties constitute part of the record before this Court (translation):

The defendant admits through counsel that on the dates alleged in the declaration Messrs. Felix Mankwe and Pierre M'Bale were duly accredited Chargés d'Affaires of the Embassy of the Democratic Republic of the Congo in Ottawa, and duly appointed Commissioners General to the Montreal World Exhibition.

Signed: ‘Vizkelety

The plaintiff admits through counsel that since 1960 the Government of the Democratic Republic of the Congo has been a sovereign state.

Signed: ‘G. Girard

The first paragraph of the declaration describes the offer allegedly made by the appellant to retain the respondent's professional services as follows (translation):

1. During the period from November 1965 to March 1966, Mr. Felix Mankwe, Charge d'Affaires and Commissioner General for the Democratic Republic of the Congo, Mr. Pierre A. M'Bale, his successor in those duties, and the Deputy Minister of Foreign Affairs of the Democratic Republic of the Congo, in Montreal, on behalf of the said country, did request the professional services of plaintiff, an architect in Montreal, to carry out preliminary studies and prepare sketches in relation to the Pavillion which that country proposed to build at Expo 67.

It is common ground that the term ‘Expo 67’ as used in the declaration refers to the exhibition defined in s. 2 (f) of the Canadian World Exhibition Corporation Act, 1962–63 (Can.), c. 12 [renamed Canadian Corporation for the 1967 World Exhibition Act by 1963, c. 32, s. 1], as follows:

2.(f) ‘Exhibition’ means the Canadian Universal and International Exhibition, Montreal, 1967, for which registration was accorded by the Council of the Bureau of International Exhibitions on November 13, 1962;

Leduc, J., in the Superior Court and the three Judges who sat on the Court of Appeal were all of opinion that the contract in question was entered into by the Congo as a private commercial transaction and that it did not bear the character of an act of State or an act done for the public purpose of a foreign sovereign State.

Mr. Justice Leduc expressed his finding in this regard in the following terms (translation) [see [1968] Que. P.R. at p. 12]:

Whereas the defendant, by requesting plaintiff's services through its Chargés d'Affaires, duly accredited to the governing body of Expo 67, did not perform an act jure imperri (acte de puissance publique) but an act jure gestionis (acte de gestion d'une nature privée);

Whereas although the Democratic Republic of the Congo is sovereign State, the contractual relations between the parties were purely of a private nature;

Accepting the finding that the contractual relations between the parties were of a purely private nature, Owen, J.A., proceeded to pose the problem as he understood it in the following terms [5 D.L.R. (3d) at p. 130]:

The problem raised by this appeal is whether under conditions existing today our Courts will continue to apply the doctrine or theory of absolute sovereign immunity or whether the time has come to apply a doctrine or theory of qualified or restrictive sovereign immunity.

In my opinion we should abandon the doctrine of absolute sovereign immunity and adopt a theory of restrictive sovereign immunity.[1]

Stated briefly, the theory of sovereign immunity recognizes the classical doctrine that a foreign Sovereign cannot, without his consent, be impleaded in the Courts of another sovereign State, whereas according to the theory of restrictive sovereign immunity, which has been accepted by the United States State Department and consequently by the Courts of that country, the immunity of the foreign Sovereign is

recognized only with regard to sovereign or public acts (jure imperii) but not with respect to private acts (jure gestionis).

It accordingly appears to me, with all respect for the views of others, that the problem so dramatically posed by Mr. Justice Owen can only arise in this case if the Judges of the Court of Appeal were right in adopting, without discussion, the finding of the learned trial Judge that when the appellant employed the respondent to prepare sketches of the national pavilion which it proposed to build at a duly authorized international exhibition, it was not performing a public act of a sovereign State but rather one of a purely private nature.

The record indicates that the Judges of the Court of Appeal simply accepted this finding of the trial Judge and did not pause to consider the material upon which it was based. In fact, in his reasons for judgment, Mr. Justice Ledue disposes of the matter in one paragraph where he says (translation):

In the circumstances there is no doubt that this was a private act, since it is a Montreal architect claiming from defendant, his principal, the minimum payment for his professional services, as the result of jure gestions acte (actes de gestion) performed by the tatter's Charges d'Affaires, duly accredited not only to the sovereign power of Canada, bat also to the Commissioners General of the 1967 World Exhibition.

As I have indicated, the material before this Court is, in my view, limited to the terms of the respondent's declaration and the admissions made on behalf of the parties, all of which is to be read against the background of the Canadian Corporation for the 1967 World Exhibition Act, which incorporated the agency created by the Government of Canada for the purposes of planning, organizing, holding and administering the Canadian Universal and International Exhibition.

This record discloses nothing more than that the contract here in question was made in pursuance of the desire of a foreign sovereign State to construct a national pavilion at an international exhibition and to be thereby represented at that exhibition which was registered by the Council of the Bureau of International Exhibitions and which was to be held (in the words of s. 3(1) [rep. & sub. 1963, c. 32, s. 3] of the Canadian Corporation for the 1967 World Exhibition Act) ‘In connection with the celebration of the Centennial of Confederation...