Iran did not file a Statement of Defence and has been noted in default. This matter comes before me as a motion to determine whether the Superior Court of Justice has jurisdiction over this proceeding, both under the common law rules respecting conflicts of law and under the State Immunity Act, R.S.C.
1985, c. S-18. Section 3 of that Act states,
(1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.
(2) In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subsection (1) notwithstanding that the state has failed to take any step in the proceedings.
The plaintiffs argue that they fall within one of three exceptions specified in the Act - the commercial activity exception in s. 5, the tort exception in s. 6, or the penal proceedings provision in s.
18. Alternatively, they argue that a further exception should be read into the Act to permit a civil action for damages for torture against a foreign state. If the State Immunity Act bars this proceeding, they challenge the constitutionality of s. 3 under the Canadian Charter of Rights and Freedoms, arguing that it is contrary to s. 7 and not justified under s. 1.
Iran did not file a Statement of Defence and has been noted in default. This matter comes before me as a motion to determine whether the Superior Court of Justice has jurisdiction over this proceeding, both under the common law rules respecting conflicts of law and under the State Immunity Act, R.S.C.1985, c. S-18. Section 3 of that Act states,(1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.(2) In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subsection (1) notwithstanding that the state has failed to take any step in the proceedings.The plaintiffs argue that they fall within one of three exceptions specified in the Act - the commercial activity exception in s. 5, the tort exception in s. 6, or the penal proceedings provision in s. 18. Alternatively, they argue that a further exception should be read into the Act to permit a civil action for damages for torture against a foreign state. If the State Immunity Act bars this proceeding, they challenge the constitutionality of s. 3 under the Canadian Charter of Rights and Freedoms, arguing that it is contrary to s. 7 and not justified under s. 1.
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