Jaffe v. Miller et al., (1993) 64 O.A.C. 20 (CA)

• Judge: Houlden, Finlayson and Carthy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 17, 1993
• Jurisdiction: Ontario
• Citations: (1993), 64 O.A.C. 20 (CA)

Jaffe v. Miller (1993), 64 O.A.C. 20 (CA)

MLB headnote and full text

Sidney L. Jaffe and Ruth Jaffe (plaintiffs/appellants) v. Joe C. Miller, II, Metropolitan Toronto Condominium Corporation No. 539, Daniel J. Kear, Frances L. Giles, Hank M. Snow, Jr., William Hatch, Louis R. Stark, Clyde E. Shoemake, Stephen L. Boyles, Accredited Surety & Casualty Co., Terrence Schmidt, Charles W. Grant, Patricia Silver, The Attorney General of the State of Florida, Florida Board of Risk Management, Ormark Enterprises Limited, Putnam County Florida, Smith, Handler, Smith, Werner Jacobowitz & Fried P.A. Kelly Smith, Charles Baird, Garry Keller, Bonnie Allender, John Eubanks, Timm Johnsen, Glen E. Norris (defendants/respondents)

(C 10101)

Indexed As: Jaffe v. Miller et al.

Ontario Court of Appeal

Houlden, Finlayson and Carthy, JJ.A.

June 17, 1993.

Summary:

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.

The Supreme Court of Ontario, in a deci­sion reported 75 O.R.(2d) 133, allowed the motion and dismissed the claims. Jaffe and his dependent appealed.

The Ontario Court of Appeal dismissed the appeal.

International Law - Topic 2200

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.

International Law - Topic 2200

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.

International Law - Topic 2201

Sovereignty - Incidents of - Immunity - Acta imperil - Sovereign or public acts - [See second International Law - Topic 2207 ].

International Law - Topic 2204

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.

International Law - Topic 2207

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.

International Law - Topic 2207

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

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.

Practice - Topic 1300

Pleadings - General principles - Stating material facts - [See Practice - Topic 1462].

Practice - Topic 1462

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.

Words and Phrases

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.

Cases Noticed:

Ship Parlement Belge (1880), 5 P.D. 197 (C.A.), refd to. [para. 12].

Reference Re Canada Labour Code and State Immunity Act (Can.), [1992] 2 S.C.R. 50; 137 N.R. 81, consd. [para. 13].

Thai-Europe Tapioca Service Ltd. v. Pakistan et al., [1975] 3 All E.R. 961 (C.A.), refd to. [para. 13].

Ship Cristina, [1938] A.C. 485 (H.L.), refd to. [para. 15].

I Congreso del Partido, [1983] 1 A.C. 244 (H.L.), consd. [para. 17].

Congo (Republic) v. Venne, [1971] S.C.R. 997, consd. [para. 19].

Saint John et al. v. Fraser-Brace Overseas Corp. et al., [1958] S.C.R. 263, refd to. [para. 20].

Foreign Legations, Reference Re, [1943] S.C.R. 208, consd. [para. 20].

Lorac Transport Ltd. v. Iran (1986), 69 N.R. 183; 28 D.L.R.(4th) 390 (F.C.A.), consd. [para. 21].

Tritt v. United States of America (1989), 68 O.R.(2d) 284 (H.C.), consd. [para. 27].

Kline v. Kaneko (1988), 685 F.Supp. 386 (S.D.N.Y.), consd. [para. 28].

Philippines (Republic) v. Marcos (1987), 665 F.Supp. 793 (N.D.Cal.), consd. [para. 29].

Carrato v. United States of America (1982), 40 O.R.(2d) 459 (H.C.), consd. [para. 38].

Herbage v. Meese (1990), 747 F.Supp. 60 (D.C.D.C.), affd. without reasons (1991), 946 F.2d 1564, consd. [para. 40].

Statutes Noticed:

Family Law Reform Act, R.S.O. 1970, c. 152, sect. 60 [para. 6].

Foreign Sovereign Immunities Act, 1976, 28 U.S.C. [para. 28].

Rules of Civil Procedure (Ont.), rule 17.06 [paras. 10, 43]; rule 17.06(1) [para. 44]; rule 17.06(4) [para. 46]; rule 25.06(1) [para. 55].

State Immunity Act, R.S.C. 1985, c. S-18, sect. 2 [paras. 24, 49]; sect. 2(c) [para. 25]; sect. 3 [para. 22]; sect. 3(1), sect. 3(2) [para. 49]; sect. 4 [para. 46]; sect. 4(1), sect. 4(2)(c) [para. 44]; sect. 4(3) [para. 42]; sect. 4(3)(a) [para. 44]; sect. 5 [para. 22]; sect. 6 [para. 22 et seq.]; sect. 6(a) [para. 22]; sect. 17 [paras. 42, 44, 46]; sect. 18 [para. 22].

Uniform Land Sales Practices Law (Florida), generally [para. 3].

Authors and Works Noticed:

Blom, Canadian Cases in International Law in 1986-87 (1987), Canadian Yearbook of International Law, p. 493 [para. 21].

Brownlie, Ian, Principles of Public Inter­national Law (4th Ed. 1990), pp. 322 to 336 [para. 18].

Jewett, M.L., Integrating International Law into Canadian Domestic Law: Sovereign Immunities (1981), 10 Canadian Council on International Law Proceedings 202, generally [para. 16].

Molot, H.L. and M.L. Jewett, Cana­dian Yearbook of International Law (1982), p. 79 [para. 15].

Molot, H.L. and M.L. Jewett, State Im­munity Act - Basic Principles (1983), 61 Can. Bar Rev. 843, pp. 848, 849 [para. 26]; 853 [para. 47].

Random House Dictionary (2nd Ed. 1987) [para. 32].

Sucharitkul, Immunities of Foreign States before National Authorities (1976), 149 Recueil des Courts, Academie de Droit International 89, p. 100 [para. 26].

Counsel:

Jennie Hatfield-Lyon, for the plaintiff appellants;

David M. Brown and Marjo A. MacMullin, for the defendant respon­dents.

This appeal was heard on April 13 and 14, 1993, before Houlden, Finlayson and Carthy, JJ.A., of the Ontario Court of Appeal.

The judgment of the court was delivered by Finlayson, J.A., and released on June 17, 1993.