Bouzari v. Islamic Republic of Iran (2004), 71 OR (3d) 675 (CA)
Links: Judgment (website)
In Bouzari, the plaintiff was a former Iranian citizen who had since moved to Italy and began a consulting business advising foreign enterprises with respect to their oil and gas business in Iran. In exchange for the payment of a $50 million bribe, one of the President’s sons offered the plaintiff business assistance, but the plaintiff refused. On a business trip to Tehran, the plaintiff was abducted and brutally tortured by the Iranian government. He escaped and immigrated to Canada with his family. The plaintiff brought a claim against Iran in Ontario for damages connected to his kidnapping and torture.
Iran did not defend the plaintiff’s action and was noted in default. On a motion to assess the damages suffered by the plaintiff, the motion judge dismissed the action. She held that, not only was there no real and substantial connection to Ontario such that she would have jurisdiction to decide the claim, but also that the action was barred by Canada’s State Immunity Act, RSC 1985, c S-18 (SIA). She found that neither the exceptions in the SIA, public international law, nor the Canadian Charter of Rights and Freedoms could override the SIA.
The plaintiff appealed and, CLAIHR sought and was granted leave to intervene. CLAIHR was represented by Patricia D.S. Jackson (Torys LLP) and François Larocque (University of Ottawa Faculty of Law; Power Law LLP). They argued that it was proper for the Court to apply the real and substantial connection test which would grant Ontario jurisdiction over the claim, particularly given the absence of any other forum. While the Court did apply the real and substantial connection test, it refused to reach a conclusion on the issue, given its findings with respect to the SIA, namely that it was a complete bar to the action.
CLAIHR also argued that the enactment of the SIA did not displace the common law of state immunity and that, under the common law, torture could not be legitimized as a government act and could not therefore attract immunity. The Court rejected this argument on the grounds that the wording of the SIA excluded any exceptions to state immunity other than those set out in the SIA. As a result, the appeal was dismissed.