International Association of Science and Technology for Development et al. v. Hamza, (1995) 162 A.R. 349 (CA)

• Judge: Harradence, Bracco and Conrad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 26, 1995
• Citations: (1995), 162 A.R. 349 (CA)

Intl. Assoc. of Science v. Hamza (1995), 162 A.R. 349 (CA);

    83 W.A.C. 349

MLB headnote and full text

The International Association of Science and Technology for Development and The International Society for Mini & Micro Computers (respondents/plaintiffs) v. Christa Madeleine Hamza (appellant/defendant) and Mohamed Hamed Hamza (respondent/defendant)

Christa Madeleine Hamza (appellant/plaintiff) v. Mohamed Hamed Hamza (respondent/defendant)

(Appeal No. 15098)

Indexed As: International Association of Science and Technology for Development et al. v. Hamza

Alberta Court of Appeal

Harradence, Bracco and Conrad, JJ.A.

January 26, 1995.

Summary:

The International Association of Science and Technology for Development (IASTD) and the International Society for Mini & Micro Computers (ISMM) were allegedly registered in Switzerland as societies. Nei­ther society was incorporated nor registered

as any form of society or trade union under Canadian provincial or federal law. The societies issued a statement of claim naming the Hamzas as defendants in property litiga­tion in Alberta. The Hamzas applied to strike out the statement of claim arguing that the societies lacked legal status to commence the action. The societies argued that they were recog­nized in Switzerland as having status to sue, and, therefore should be accorded simi­lar recognition in Alberta.

The Alberta Court of Queen's Bench, per Dixon, J., dismissed the application to strike. C.M. Hamza appealed.

The Alberta Court of Appeal agreed that the statement of claim should not be struck at this stage of the proceedings due to lack of status, rather the societies could proceed in order to prove that they had status. The court, however, added the societies as inter­ested parties to a matrimo­nial property proceeding involving the Hamzas, where the societies' claims arose as a result of issues raised in the matrimonial property action. The court held that the issue of the societies' status could be determined either at the com­mencement of the trial or as a prelimi­nary matter.

Conflict of Laws - Topic 1681

Actions - Choice of law - General - Two entities registered as societies in Switzer­land issued a statement of claim against two individual defendants in Alberta - An issue arose respecting the status of the societies to commence proceedings in Alberta - 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 Alberta law - That law included the Alberta rules relating to private interna­tional law applicable to foreign litigants - See paragraphs 8 to 11.

Conflict of Laws - Topic 9207

Practice - Status to sue - Two entities registered as societies in Switzerland issued a statement of claim against two individual defendants in Alberta - The defendants applied to strike out the plead­ing, arguing that the societies lacked status to commence proceedings in Alberta - The Alberta Court of Appeal affirmed that the pleading should not be struck at this stage of proceedings, rather, the societies 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 in Alberta - See paragraphs 1 to 40.

Conflict of Laws - Topic 9207

Practice - Status to sue - The Alberta Court of Appeal stated that if the court is satisfied by proof of the foreign law that its directions and judgments are enforce­able against identifiable legal persons, then a foreign entity with status to sue in its home jurisdiction should be allowed to sue in Alberta - If a foreign litigant is incapable of proving it has status to sue in the foreign jurisdiction, or that there are identifiable legal persons who are answer­able for court directions and orders against the foreign litigant, then the court should require that proper parties be named - See paragraph 38.

Conflict of Laws - Topic 9207

Practice - Status to sue - The Alberta Court of Appeal discussed the law relating to the status of foreign litigants (including individuals, corporations and unincorpor­ated foreign entities) to sue in Alberta - See paragraphs 22 to 37 - The court con­cluded that with respect to unincorporated foreign entities, "overall the law tends to support a granting of status in cases where the entity in question is recognized 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" - See paragraph 37.

Practice - Topic 104

Persons who can sue and be sued - Foreign entities - The Alberta Court of Appeal discussed the law relating to the status of foreign litigants (including indi­viduals, corporations and unincorporated foreign entities) to sue in Alberta - See paragraphs 22 to 37.

Practice - Topic 203

Persons who can sue and be sued - Cor­por­ations - Foreign corporations - [See Practice - Topic 104 ].

Practice - Topic 216

Persons who can sue and be sued - Indi­vid­uals and corporations - Status or stand­ing - Persons living out of court's juris­diction - [See Practice - Topic 104 ].

Practice - Topic 260

Persons who can sue and be sued - Legal personalty - General - The Alberta Court of Appeal discussed generally the status to sue under Alberta law - See paragraphs 12 to 20 - The court stated, inter alia, that "... in general, a resident entity has status to sue or be sued in Alberta if it is recog­nized under the statutory or common law as a natural or statutory person ..." - See paragraph 13.

Practice - Topic 266

Persons who can sue and be sued - Legal personalty - Unincorporated bodies or associations - The Alberta Court of Appeal discussed generally the status to sue under Alberta law - See paragraphs 12 to 20 - The court stated, inter alia, that "generally speaking, subject to certain statutory exceptions, other entities which are neither natural persons nor statutory persons will lack the status to commence an action. Thus, unincorporated associ­ations and clubs are not legal entities capable of suing or being sued ... Actions involving an unincorporated association must be brought in the name of the mem­bers involved, either personally or in a representative capacity" - See paragraph 17.

Practice - Topic 266

Persons who can sue and be sued - Legal personalty - Unincorporated bodies or associations - [See all three Conflict of Laws - Topic 9207 ].

Cases Noticed:

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].

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

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

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].

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

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].

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

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

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

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

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

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

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

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].

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

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

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

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

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

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

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].

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

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].

Statutes Noticed:

Business Corporations Act, S.A. 1981, c. B-15, sect. 15(1) [para. 14]; sect. 282(1) [para. 23].

Companies Act, R.S.A. 1980, c. C-20, sect. 196(1) [para. 24].

Interpretation Act, R.S.A. 1980, c. I-7, sect. 25(1)(p) [para. 21].

Labour Relations Act, S.A. 1988, c. L-1.2, sect. 23(1) [para. 18].

Quebec Code of Civil Procedure, art. 79 [para. 33].

Rules of Court (Alta.), rule 80 [para. 19].

Societies Act, R.S.A. 1980, c. S-18, sect. 10 [para. 15].

Authors and Works Noticed:

Castel, J.G., Canadian Conflict of Laws (3rd Ed. 1993), p. 534 [para. 28].

McLeod, James G., Conflict of Laws (1983), p. 455 [para. 34].

Counsel:

G.D. Roszler, for the appellant;

H.D. Lloyd and D.G. Byblow, for the respondent.

This appeal was heard before Harradence, Bracco and Conrad, JJ.A., of the Alberta Court of Appeal. The decision of the court was delivered on January 26, 1995, by Conrad, J.A.