[1] THE COURT; - On the appeal from a judgment rendered on September 18, 2009 by the Superior Court, District of Montreal (The Honourable Louis-Paul Cullen), which maintains the Defendants' Application to decline jurisdiction - forum non conveniens and dismisses the Second Further Amended and Particularized Motion Introducing a Suit dated June 12, 2009;
[2] After having examined the file, heard the parties, and on the whole deliberated;
[3]
Upon application by the respondents, the trial
judge found that "the authorities of another country [Israel] are in a
better position to decide" (art.
[4] The appeal, therefore, does not seek to decide whether Green Park International Inc. (Green Park), Green Mount International Inc. (Green Mount), and Annette Laroche (Laroche) behaved wrongfully toward Basem Ahmed Issa Yassin and others (the Yassin family), but rather to determine whether the trial judge erred in the exercise of his discretion when granting a motion on the ground of forum non conveniens.
[5] The appellants seek to overturn the trial judgment.
[6] In the event the main appeal is allowed, Green Park, Green Mount, and Laroche file an incidental appeal against the trial judgment dismissing their motion to dismiss on the grounds of res judicata, the appellants' lack of interest, and the lack of a legal basis for their action even if the alleged facts are taken as proved.
[7]
The incidental appellants also seek compensatory
and punitive damages under art.
[8]
The appellants moved to have the incidental
appeal dismissed. In a judgment on December 11, 2009, this Court rejected the
challenge and gave effect to the suggestion of the parties to proceed first
with the issue of forum non conveniens and the costs that
may be claimed under art.
THE PARTIES
[9] Bil'in is a village on the West Bank of the River Jordan, in the territories that have been occupied by Israel since June 1967.
[10] Ahmed Issa Abdallah Yassin was Head of the village Council. He alleged that he owned land parcels there bearing numbers 35 and 62.
[11] Ahmed Issa Abdallah Yassin died on January 20, 2009, and the case was continued by his heirs (the Yassin family).
[12] Green Park and Green Mount are corporations constituted under Part 1A of the Corporations Act[1] and have their head offices in Montreal.
[13] Annette Laroche is the sole administrator of Green Park and Green Mount.
THE DISPUTE
[14] The dispute can be outlined briefly as follows: Green Park and Green Mount began constructing residential buildings to be occupied by Israeli citizens on land allegedly belonging to Ahmed Issa Abdallah Yassin, in contravention of Art. 49(6) of the Convention (IV) relative to the Protection of Civilian Persons in Time of War ("Fourth Geneva Convention"), dated August 12, 1949 :[2]
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
[15] The trial judge correctly observed that the essential character of the dispute is set out in paragraph 24 of the motion to institute proceedings :
24. The Village pleads that the
corporate Defendants, on their own behalf and as agents of the State of Israel,
are constructing residential and other buildings and are creating a new dense
settlement neighbourhood on the lands of the Village and are marketing and
selling therein condominium units and other built up areas to the civilian
population of the occupying power, the State of Israel, for the purpose of
transferring the civilian population of Israel to the village's land and
removing the population of the Village from their land. In so doing, the
corporate Defendants are aiding, abetting, assisting and conspiring with the
State of Israel in carrying out an illegal purpose. The Defendant, LaRoche, is deemed
legally to be liable for the conduct of the corporate Defendants in her
capacity as their sole registered director and officer. The Defendants, and
each of them, are therefore in violation of the aforesaid Article 49(6) of the Fourth
Geneva Convention dated August 12, 1949, Section 3(1), Schedule V Protocol
1, Part 1, Article 1 (1) and Schedule V Protocol 1, Part V, Section 11, Article
85 (4)(a) of the Geneva Conventions Act, R.S. 1985, c. G-3, Articles
8(2)(b(viii) and 25 (c) of the Rome Statute of the International Criminal
Court dated July 17, 1998, Section 6(1)(c), 6(3) and 6(4) of the Canadian Crimes
against Humanity and War Crimes Act S.C. 2000, c. 24, Sections
6
and
8
of
the Charter of Human Rights and Freedoms, R.S.Q., c. C-12 and Article
THE PROCEEDINGS
[16] At trial, in addition to a motion for forum non conveniens, Green Park, Green Mount, and Laroche, sought the dismissal of the action on the grounds of foreign state immunity, the doctrine of res judicata by virtue of decisions rendered by Israeli courts, lack of interest on the part of the applicants, and lack of a legal basis even assuming the facts alleged to be true.
[17] The exception for dismissal based on the lack of interest of the Bil'in Village Council was maintained and its claim dismissed. This ruling was not appealed.
[18] All other grounds for dismissal raised by Green Park, Green Mount, and Laroche were dismissed.
THE LAW
[19]
Art.
3135. Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide.
[20] In Spar Aerospace Ltd. v. American Mobile Satellite Corp.,[3] LeBel J. cited with approval the ten factors set out by this Court in Lexus Maritime Inc. v. Oppenheim Forfait GmbH,[4] none of which is individually determinative :
20.1. the parties' residence, that of witnesses and experts;
20.2. the location of the material evidence;
20.3. the place where the contract was negotiated and executed;
20.4. the existence of proceedings pending between the parties in another jurisdiction;
20.5. the location of the Defendant's assets;
20.6. the applicable law;
20.7. advantages conferred upon a Plaintiff by its choice of forum, if any;
20.8. the interest of justice;
20.9. the interest of the parties;
20.10. the need to have the judgment recognized in another jurisdiction.
TRIAL JUDGMENT
[21] The trial judgment contains a detailed consideration of all of the issues in dispute.
[22] Addressing the issue of forum non conveniens, the trial judge properly considered each of the ten factors approved by the Supreme Court in Spar Aerospace.
[23] First, the trial judge dealt with the following factors: (1) the parties' residence, that of lay and expert witnesses, (2) the location of the material evidence, (3) the place where the contract was negotiated and executed, and (4) the location of the respondent's assets. Subsequently, he notes the absence of proceedings pending before a court in another jurisdiction. Finally, he acknowledges the need to have the judgment recognized in another jurisdiction.
[24] In his view, there is no doubt that, upon consideration, all of these factors weigh in favour of referring the case to an Israeli court.
[25] The trial judge analyzed more closely the factors which the parties treated as more contentious :
25.1. the applicable law;
25.2. the advantages conferred upon the plaintiffs by their choice of forum;
25.3. the interest of justice;
25.4. the interest of the parties.
[26] Concerning the determination of the applicable law, the appellants argue that the courts of Israel do not apply the Fourth Geneva Convention and consequently would not consider their application to be "justiciable".
[27]
That being the case, they allege, the foreign
law does not meet the requirements set out in art.
3081. The provisions of the law of a foreign country do not apply if their application would be manifestly inconsistent with public order as understood in international relations.
[28] The trial judge carefully reviewed the expert reports filed by the parties. The appellants rely on the opinion of Professor Orna Ben-Naftali, and the respondents on that of the attorney Renato Jarach.
[29] While considering the ground for dismissal based on res judicata, the trial judge recognized attorney Jarach's qualifications as an expert witness and referred to some of the contents of his expert report :
[86] Mr. Jarach's other statements include that:
- Various Israeli courts, including the HCJ, rejected the claims of ownership made by Mr. Yassin regarding parcels 35 and 62.
- The Jordanian Villages Administration Law of 1954 governs the village of Bil'in.
- Under the applicable Israeli, Jordanian or military occupancy laws, neither the village of Bil'in nor the Council would have legal interest or standing to institute the Action.
- The Plaintiffs attorned to the jurisdiction of the HCJ.
- The judgment rendered by the HCJ in Bargil v. The Government of Israel does not support the Plaintiffs' contention that the matters at issue in the Action are not justiciable before the Israeli courts; such matters are justiciable before the Israeli courts and have already been submitted to various tribunals and the HCJ.
- None of the applications made by Mr. Yassin or others against the Corporations with respect to the Lands have been deemed by the HCJ to be non-justiciable.
- The Plaintiffs have sought and obtained injunctive orders against the Corporations with respect to the Modi'in Illit construction development, have unsuccessfully advanced proprietary rights to parcels of land on which the project is being developed and have invoked international Conventions, namely the Fourth Geneva Convention, the Rome Statute of the International Criminal Court and the Geneva Conventions Act.
- The residence of all Plaintiffs and of all witnesses except Defendant Laroche, is in Israel or in the West Bank where all elements of proof are also situated.
- The issues raised by the Plaintiffs in Israel invoked and called for an understanding of various laws that are foreign to Canada.
- The Plaintiffs' injunctive proceedings would require recognition and enforcement overseas.
[30] The trial judge proceeded with an analysis of the case law cited in the expert reports, in particular the cases of Bargil, Ayub, and Dweikat.
[31] After reviewing the reasons of the different judges in the 1993 decision in Bargil,[5] the trial judge concluded that the High Court of Justice did not apply the Fourth Geneva Convention because the issue was moot and did not involve an actual conflict between the parties :
[265] On its face, the Bargil case plainly does not support the view that the HCJ would refuse to hear the Action on the basis that the alleged violation of Article 49(6) of the Fourth Geneva Convention is non justiciable. It merely expresses the well-established principle of judicial economy whereby a court may abstain from considering a question in the abstract.
[266] A particular expression of
this principle is found in art.
453. Any person who has in interest in having determined, for the resolution of a genuine problem, either his or her status or any right, power or obligation the person may have under a contract, a will or any other written instrument, a statute, an order in council, or a by-law or resolution of a municipality, may, by way of a motion to institute proceedings, ask for a declaratory judgment in that regard.
[Emphasis added]
[267] In general, Canadian courts may decline to hear a case that merely raises a hypothetical or abstract question. This discretion cannot be characterized as "manifestly inconsistent with public order as understood in international relations".
[32] The High Court of Justice had considered the issue pertaining to the application of the Fourth Geneva Convention in two cases heard in 1979.
[33] In Ayub,[6] a judgment rendered in early 1979, it appears that the judges found that the Convention did not apply :
[280] Thus, the Ayub case essentially confirms that, early in 1979, the HCJ considered that Article 49 of the Fourth Geneva Convention had not become customary international law, which, as such, forms part of the domestic law of Israel and of all other nations. Instead, the HCJ considered at the time that Article 49 of the Fourth Geneva Convention was conventional international law that it could not apply because it had not been incorporated by statute into the domestic law of Israel.
[34] Later that year, however, in Dweikat,[7] the High Court of Justice found that an action alleging the violation of customary international law was a justiciable issue :
[282] On the face of Professor Ben-Naftali's own review, the Dweikat case does not support her conclusion that the Action would not be justiciable before the HCJ. Rather, it supports the conclusion that the HCJ would not refrain to adjudicate on a politically controversial matter if it were properly brought before the court.
[283] Referring to the Ayub case, Deputy to the President Landau confirmed in the Dweikat case that customary international law applies and is binding on the Military Government in the administrative areas of Judea and Samaria in the West Bank:
…At the time, I took Section 49(6) to the Geneva Convention out of the debate because it is part of the conventional international law, which is not binding law in an Israeli courtroom, but I did concur with my learned colleague's opinion on the judgeability of the matter in reference to the Hague Regulations, which are binding upon the Military Government in Judea and Samaria because they are customary international law….
…
[285] Vitkon J.'s opinion reaffirms that according to the HCJ in the late seventies, the Fourth Geneva Convention was part of conventional international law, which contrary to customary international law requires enabling legislation in order to have force of law in Israel, and that only its signatories might avail themselves of the rights it created.
[35] The trial judge went on to note that Professor Ben-Naftali offered no comments on the cases before the High Court of Justice that involved the appellants themselves :
[286] Professor Ben-Naftali offers no review of the cases that involved Mr. Yassin or the Council and the Corporations before the HCJ. In this respect, she simply writes:
Indeed, despite several court petitions filed by Bil'in, the Court has never adjudicated or ruled upon the legality of Mattityahu East as an Israeli settlement or on the conduct of the Defendant companies in the Occupied Palestinian Territories under International Humanitarian Law. [References omitted.] Such an attempt would be futile.
[287] The Court notes that in HCJ no. 8414/05, Petitioner "Ahmed Issa Abdallah Yassin, Head of the Bil'in Village Council" argued that the construction of the disputed fence was not legal, that it constituted a breach of public international law and invoked the advisory opinion of the International Court of Justice delivered on July 9, 2004. Deciding in favour of the Petitioner on other grounds, the HCJ stated that the Military Commander's authority is anchored principally in the Hague Regulations but also in the Fourth Geneva Convention.
[288] On the whole, the evidence shows that the HCJ has not applied Article 49(6) of the Fourth Geneva Convention, not because of its unwillingness to adjudicate on its alleged violation by reason of the political significance of the matter, but either because it was unnecessary to do so or because the HCJ considered that it was not customary international law (contrary to what professor Ben-Naftali states in her footnote) and that it had not been incorporated into the domestic law of Israel through appropriate legislation.
[289] The fact that Canada,
contrary to Israel, has approved the Fourth Geneva Convention by statute
is insufficient to conclude that the application of the law of the West Bank
would lead to a result that would be manifestly inconsistent with public order
as understood in international relations contrary to article
[36] In considering the ground for dismissal based on res judicata, the trial judge himself provided a brief overview of the three cases before the High Court of Justice involving the appellants :
2- Should the Superior Court recognize HCJ judgments nos. 3998/06, 143/06 and 1526/07?
[32] Each judgement will be reviewed briefly.
(a) Summary of HCJ no. 3998/06
[33] The petition named "Ahmad Isa (sic) Abdallah Yassin, Head of Bil'in Village Council" as one of the 21 petitioners whereas the respondents included "Green Park Inc." and "Green Mount Inc."
…
[39] Mr. Yassin was one of the unsuccessful claimants before the Appeals Committee.
[40] As appears from the petition, Mr. Yassin implicitly admitted that the "Appeals Committee" had dismissed his claim to part ownership of parcel 62, whereas the same authority had partially maintained his claim to part ownership of parcel 35 as a result of which a portion of that parcel had been removed from the declarations of state property.
[41] The judgements of the HCJ in nos. 143/06 and 1526/07 were delivered together on September 5, 2007.
(b) Summary of HCJ no. 143/06
[42] The petitioners included "The Head of the Bil'in Village Council, Ahmad Issa Abdallah Yassin". The respondents again included "Green Park Inc." and "Green Mount Inc."
…
[46] The petitioners sought to enforce applicable planning laws, to freeze all construction pursuant to the Second Plan, and to bring to trial those responsible for the illegal construction as well as for other violations of existing laws.
[47] The HCJ awarded costs to the petitioners but found that the Second Plan had cured the defects of the First Plan.
(c) Summary of HCJ no. 1526/07
[48] The petitioners included "The Head of the Bil'in Village Council". "Green Park Inc." and "Green Mount Inc." were again among the respondents.
[49] The petitioners had initiated their petition after the approval of the Second Plan but before it had become valid.
…
[54] Regarding land rights, the HCJ stated: "The planning decision does not determine rights to land. The petitioners' rights, to the extent that any such exist, remain theirs",
[37] The expert Jarach filed a list of proceedings involving the appellants before the High Court of Justice :
SCHEDULE 2: Application for Order nisi and Interim Order, High Court of Justice file number HCJ 8414/05, with translation certificate;
SCHEDULE 3: Response to Petition by Respondents Green Park (International) Inc., Green Mount (International) Inc. et al. with translation certificate, HCJ 8414/05;
SCHEDULE 4: Court Decision in HCJ 8414/05, with translation certificate;
SCHEDULE 5: Petition for an Order Nisi and an Interim Injunction on behalf on the "Peace Now" Movement et al. vs. Green Park (International) Inc. and Green Mount (International) Inc. et al., HCJ 143/06;
SCHEDULE 6: Response on behalf of Green Park (International) Inc. and Green Mount (International) Inc. et al., HCJ 143/06;
SCHEDULE 7: Court Decision, HCJ 143/06, HCJ 1526/07, with translation certificate;
SCHEDULE 8: Petition for a Decree Nisi and an Interim Injunction by Ahmed Issa Abdallah Yassin, Head of Bil'in Village Council et al. vs. Green Park (International) Inc. and Green Mount (International) Inc. et al., HCJ 4998/06;
SCHEDULE 9: Roster of Opponents' Names and Map of Objections and Certified translation in HCJ 3998/06;
SCHEDULE 10: Response of Green Park (International) Inc, et al., 3998/06 and translation certificate;
SCHEDULE 11: Court Decision in HCJ 3998/06 and translation certificate;
[38] After referring to the position of the Government of Canada and the resolutions of the United Nations Security Council, the trial judge found that the appellants had not demonstrated a violation of public order :
[300] The judgements of the HCJ do not support their argument that they own property which has been "confiscated", contrary to what was indisputably the case in Lean and Balster v. Estonian Cargo & Passenger Steamship Line and in Kuwait Airlines Corporation v. Iraqi Airways.
[301] The Plaintiffs have
therefore failed to show that article
[302] There is no substance to the Plaintiffs' argument that adjudication by the HCJ on the basis of the laws that apply in the West Bank would be manifestly inconsistent with public order as understood in international relations.
[303] Furthermore, contrary to the HCJ, the Superior Court possesses no expertise in respect to the laws that apply in the West Bank.
[304] The factor of applicable law clearly favours declining jurisdiction in favour of the HCJ.
[39] The trial judge went on to consider the factor relating to the advantages conferred on the plaintiff by its choice of forum. He rejected the appellants' claim for the following reasons :
[311] Similarly, in the present case, the Québec forum has jurisdiction over the Action solely because the Defendants are domiciled in Québec.
[312] Mr. Badt's evidence and the letter dated January 6, 2009 from the Plaintiffs' counsel to the Defendants' counsel clearly establish, however, that this lone and apparent connection is merely superficial: the Corporations have no assets in Québec, are alter egos for another corporation which itself has no assets in Québec and Defendant Laroche has no personal involvement in the Bil'in project or any actual knowledge of same.
[313] The advantage conferred to the Plaintiffs by their choice of the Québec forum should therefore be given very little weight, if any.
[40] The letter from counsel for the plaintiffs to counsel for the defendants to which the trial judge refers, dated January 6, 2009, reads as follows :
At this time, the Plaintiffs have no information that the Defendant Laroche was personally and directly involved in the construction, marketing or selling of condominium units or that she personally solicited or otherwise encouraged or facilitated members of the civilian population of the State of Israel to transfer and maintain their place or residence in the Occupied Territories as alleged against the Corporate Defendants in the Further Amended and Particularized Motion Introducing a Suit.
[41] As for Mr. Badt's affidavit, referred to in the same paragraph of the judgment, the following excerpts are worth quoting here :
I, the undersigned, Gideon Badt, businessman, residing and domiciled at 2 Dov Grunner Street, in the City of Hertzelia, State of Israel, solemnly affirm as follows:
…
5. I declare that Green Park International Inc. and Green Mount International Inc. (the "Green Entities") were incorporated upon my instructions for domestic Israel tax reasons only;
6. The Green Entities act as alter egos for and on behalf of a corporation that is not a resident of Canada, which corporation has no assets in Canada;
7. The Green Entities have no assets, whatsoever, in the Province of Quebec or, for that matter, in Canada and act simply as alter egos, as defined above, with respect to the Modi'In Elite development project, which is the object of the present lawsuit;
[42] As for the factor relating to the interest of the parties, the trial judge reached a similar conclusion :
[314] It is in the interest of all the parties that a court of competent jurisdiction decides the Action impartially, promptly and efficiently on the basis of the best evidence available. In this connection, it is relevant to note that the burden of proof in the Action lies with the Plaintiffs.
[315] It would clearly be more practical to try the Action in Israel rather than in Québec in light of each and every one of the connecting factors considered above, including the interest of the parties. It is also clear that the Defendants would be seriously prejudiced if this was not the case.
[43] Finally, the trial judge found that the interest of justice also demands that the action be heard before an Israeli court :
[317] However, as it is presently framed, the Action can hardly lead to a just result:
- The Plaintiffs have failed to implead any of the numerous owners or occupants of the buildings that they seek to have demolished, thereby depriving those persons of the right to be heard, a fundamental tenet of natural justice.
- Despite having chosen not to implead the State of Israel, the Plaintiffs indirectly seek the essential finding that it is committing a war crime, thereby effectively by-passing Israel's absolute immunity to any judicial proceedings. In Canada as in England, the scope of state immunity extends to gross violations of international human rights.
[318] Moreover, the Geneva Conventions Act and Crimes Against Humanity and War Crimes Act both prohibit criminal prosecution without the Attorney General's authorisation. Although the Action is civil, it is predicated on the finding that Israel is committing a war crime in violation of public international law. While seeking the benefit of the Geneva Conventions Act and Crimes Against Humanity and War Crimes Act, the Plaintiffs are proceeding without having impleaded the Attorney General and without his authorisation.
[319] The HCJ has jurisdiction over the Action insofar as the Plaintiffs allege that the Defendants are agents of the State of Israel. In the past, Mr. Yassin has acknowledged the jurisdiction of the HCJ with respect to the Lands by bringing several motions contesting the legality of various actions undertaken by Israel.
…
[328] Inappropriate "forum shopping" should thus be discouraged.
…
[335] To sum up, this is one of those exceptional situations where the Superior Court is compelled to decline jurisdiction on the basis of forum non conveniens, as the Plaintiffs have selected a forum having little connection with the Action in order to inappropriately gain a juridical advantage over the Defendants and where the relevant connecting factors, considered as a whole, clearly point to the HCJ as the logical forum and the authority in a better position to decide.
[44] The trial judge concluded by allowing the motion, as follows :
MAINTAINS the Defendants' Application to decline jurisdiction - forum non conveniens and DISMISSES the Second Further Amended and Particularized Motion Introducing a Suit dated June 12, 2009.
ISSUES IN DISPUTE
[45] The appellants frame the issues as follows :
- Under Israeli law and jurisprudence the HCJ does not have jurisdiction, simpliciter, over this suit. It is not a civil court and it does not hear civil actions between private litigants.
- Even if the HCJ had jurisdiction over this suit, it would apply its own past jurisprudence that binds all other Israeli Courts. the HCJ would find that the application of Article 49(6) of the Fourth Geneva Convention, that prohibits an occupying power form transferring parts of its own civilian population into occupied territory, to the facts as alleged in the suit, to be non-justiciable.
- The Quebec Superior Court mis-applied the test for forum non conveniens as set out by the Supreme Court of Canada in Spar Aerospace v American Mobile Satellite Corp.
ANALYSIS
[46] Before considering the issues, a few comments are in order.
[47]
First, the appellants are correct in arguing
that the judge could not decline jurisdiction in the absence of “exceptional”
circumstances; this is clearly stated in art.
[335] To sum up, this is one of those exceptional situations where the Superior Court is compelled to decline jurisdiction on the basis of forum non conveniens, as the Plaintiffs have selected a forum having little connection with the Action in order to inappropriately gain a juridical advantage over the Defendants and where the relevant connecting factors, considered as a whole, clearly point to the HCJ as the logical forum and the authority in a better position to decide.
[48] That said, it remains the case that his decision amounted to the exercise of a discretion, to which deference is owed by an appellate court when such exercise is founded on established legal criteria.[8]
[49] It should be noted, also, that the appellants treat every conceivable argument as good grist for the mill, which causes them to take contradictory propositions.
[50] The appellants claim that the action does not seek to determine the ownership of the land at issue. They argue that the trial judge was mistaken on this point and therefore erred in his analysis. They also allege, however, that the plaintiff was owner of lots 35 and 62 :
2. The Plaintiff, Ammed Issa Abdallah Yassin (hereafter "Village Head Yassin"), is the duly elected Head of the Village Council of Bil'in and is the owner of parcels of land within the Village Land Boundaries as defined by the British Mandatory Government of Palestine.
…
iii) The lands owned by Mr. Yassin are Parcels No. 35 and 62. Parcel 62 is entirely inside the area where the defendants are carrying out building construction and Parcel 35 straddles the area where the defendants are carrying out building construction as more fully described in herein.
iv) As the exact description of Mr. Yassin's lands, there are no coordinates or legal descriptions other than those referred to in the fiscal Map referred to herein.
v) Of the two parcels of land owned by Mr. Yassin, Parcel 62 is completely within the lands of the Fiscal Map. Parcel 35 straddles the Fiscal Map.
vi) Exhibits P-3 and P-4 establish and confirm the election of Mr. Yassin as Village Head. The plaintiff is not in possession of English translation of these documents.
vii) There are no title deeds for Lands in the Village of Bil'in.
[51] The appellants must prove this allegation; otherwise, like the Village Council of Bil'in, they will not be able to establish their interest and at most their proceeding will amount at most to a request for a declaration on the policy of the "occupying State".
[52] Moreover, in a proceeding before the High Court of Justice of Israel, Green Park and Green Mount claimed to have acquired these land parcels from the true owners :
The Position Taken by the Real Estate Companies
23. … According to the Real Estate Companies, there are the owners of the land that is the subject of Outline Plan 210/8, after that land was purchased lawfully many years ago at its full price from the Arab owners. However, in view of the fear that revelation of the purchase papers in a public process will endanger the lives of those who sold the plots, the Real Estate Companies abstained from attaching the documents proving those purchases. The Real Estate Companies claim that for that reason and at the Real Estate Companies' request, the State declared the plots purchased as State property and defined them as "private property under State administration". …[9]
[53] While considering the grounds for dismissal, the trial judge remarked on this aspect of the dispute :
[124] The Plaintiffs in continuance of suit are not alleging any personal rights other than those of the late Mr. Yassin. The latter alleged owning two parcels of land that were directly affected by the activities of the Defendants, i.e. parcels 35 and 62. This allegation is not supported by an affidavit. It is admitted that Mr. Yassin did not have a title deed.
[125] Mr. Yassin did not produce any of the Jordanian Land Tax documents on which he alleged to be relying.
[126] In addition, as mentioned above, in paragraphs 1, 6 and 41 of the petition filed in HCJ no. 3898/06, Mr. Yassin implicitly admitted that his claim to part ownership of parcel 62 had been dismissed by an "Appeals Committee", whereas his claim to part ownership of parcel 35 had been partially maintained by the same authority, as a result of which a portion of that parcel had been removed from the declarations of state property. He also admitted in the Action that the Corporations will claim that they own the Lands, including parcels 35 and 62.
[127] In short, on the one hand, Mr. Yassin's allegation of ownership is not sworn, is unsupported by any document, an administrative body has already dismissed his property claims insofar as they relate to the Lands and the Corporations claim ownership of the same parcels.
[128] On the other hand, according to the HCJ, Mr. Yassin's claims of ownership have never been finally determined.
[54] It is therefore difficult to understand how it can be claimed that the existence of property rights in these parcels is not an initial issue requiring determination prior to any further proceeding before a Quebec court. Were it not so, the respondents would be correct in asserting in their written argument that the question is moot .
10. If this case is not about land ownership or property rights, then it is an invitation to participate in a theoretical analysis of a situation alleged to be taking place in the West Bank of the River Jordan on theoretical, hypothetical and esoteric grounds.
[55] After arguing that the dispute was not between private litigants over the ownership of the land parcels, the appellants argued that the High Court of Justice of Israel could not hear them because it does not have jurisdiction over disputes in which the State of Israel is not a party.
[56] In paragraph 24 of their motion to introduce proceedings, supra, the appellants argue that the respondents are agents of the State of Israel and that they are conspiring with Israel to commit acts that contravene the Fourth Geneva Convention. How then can they claim that the State of Israel would not be party to potential proceedings before the High Court of Justice to decide the issues in dispute? To invoke the Fourth Geneva Convention, the appellants must demonstrate “that an Occupying Power has deported or transferred part of its own civilian population into the territory it occupies".
[57] It can be understood why the appellants chose not to implead the State of Israel before the Superior Court of Quebec, given that Israel could have invoked its immunity as a foreign state. No such ground would avail, however, if the matter were heard before a court of Israel; in such a case, it can be assumed that the Israeli State would be involved in the proceedings.
[58] Finally, it must be noted that the appellants have appeared in the High Court of Justice on several occasions in matters connected to the one before us but that they nevertheless argue now that that same court lacks the jurisdiction to hear them.
COMPETENCE OR JURISDICTION OF THE HIGH COURT OF JUSTICE
[59] The appellants are correct to argue that the trial judge could not decline the jurisdiction of the Superior Court of Quebec in favour of a foreign court that itself would not have jurisdiction to hear the dispute.
[60] It is apparent that the allegations and conclusions of the respondents' motion did not invite the trial judge to designate the High Court of Justice as a competent forum :
3. The Courts of the State of Israel, and particularly the High Court of Justice, forming part of the Supreme Court, to which direct applications have on numerous occasions been made on behalf of Plaintiffs with respect to the construction project, which is the object of the present proceedings, is clearly the most appropriate forum for the issues raised by these proceedings, the whole as acknowledged by Plaintiffs with respect to their previous applications to said Court concerning their rights and the said construction project;
…
GRANT the present Motion;
DECLINE jurisdiction to hear the present matter;
DISMISS Plaintffs' action;
THE WHOLE with costs, including the cost of experts.
[Emphasis added.]
[61] The trial judge simply granted the motion as phrased.
[62]
As a first observation, art.
[63] To draw an analogy, if the court of another province of Canada or a foreign country declined its jurisdiction in favour of the courts of Quebec, it would not have to specify whether the case was to be heard by the Superior Court of Quebec or the Court of Quebec.
[64] Admittedly, in his reasons, the trial judge referred only to the High Court of Justice. This view of the matter appears to be consistent with the description of the broad powers of the High Court of Justice :
Section 15 Supreme Court
(a) The seat of the Supreme Court is Jerusalem.
(b) The Supreme Court shall hear appeals against judgments and other decisions of the District Courts.
(c) The Supreme Court shall sit also as a High Court of Justice. When so sitting, it shall hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of another court (beit mishpat or beit din).
(d) Without prejudice to the generality of the provisions of Subsection (c), the Supreme Court sitting as a High Court of Justice shall be competent-
(1) to make orders for the release of persons unlawfully detained or imprisoned.
(2) to order State and local authorities and the officials and bodies thereof, and other persons carrying out public functions under law, to do or refrain from doing any act in the lawful exercise of their functions or, if they were improperly elected or appointed, to refrain from acting;
(3) to order courts (batel mishpat and batei din) and bodies and persons having judicial or quasi-judicial powers under law, other than courts dealt with by this Law and other than religious courts (batei din), to hear, refrain from hearing, or continue hearing a particular matter or to void a proceeding improperly taken or a decision improperly given;
(4) to order religious courts (batei din) to hear a particular matter within their jurisdiction or to refrain from hearing or continue hearing a particular matter not within their jurisdiction, provided that the court shall not entertain an application under this paragraph if the applicant did not raise the question of jurisdiction at the earliest opportunity; and if he had no measurable opportunity to raise the question of jurisdiction until a decision had been given by a religious court, the court may quash a proceeding taken or a decision given by the religious court without authority.
(e) Other powers of the Supreme Court shall be prescribed by Law.
[65] It is also consistent with the prior conduct of the appellants, who chose to initiate proceedings in the High Court of Justice in cases related to the one at hand. The respondents correctly refer to this past conduct in their memorandum :
18. We know that Plaintiffs have attorned to the jurisdiction of the State of Israel having made numerous applications to, inter alia, the High Court of Justice. In that regard, Respondents refer this Honourable Court to a document entitled, Table of Petitions, Responses (Partial) and Judgments, described by Mr. Jarach in his Affidavit as "listing various petitions, and their dispositions, instituted by Mr. Yassin and others in connection with the…" development in issue.
19. Apart from having, themselves, attorned to the jurisdiction of the Courts, Tribunals and Commissions of the State of Israel, on numerous occasions, with respect to this development project, Appellants now argue that the "Respondents presented no evidence of other Israeli Courts that might have jurisdiction over this civil dispute between these private parties".
20. In view of the many petitions brought by appellants before the High Court of Justice, such an exercise, it is suggested, is unnecessary. It was Plaintiffs who argued that the Israeli courts (not limited to the Supreme Court or the High Court of Justice of the Supreme Court) which would not hear the matter based on a decision of the High Court of Justice. This was refuted, clearly, by a simple reading of the decision which was submitted to support the principle, further refuted in the Affidavit of Mr. Jarach and the other decisions of the High Court of Justice which clearly contradict the statement made by Appellants, in this regard (as to non justiciability) and the Learned Trial Judge certainly committed no error in so concluding.
[66] It appears that the appellants did not argue at trial that the High Court of Justice lacked jurisdiction. And accordingly, Professor Ben-Naftali does not appear to challenge the jurisdiction of that court :
The Israeli Supreme Court, sitting as the High Court of Justice, has legal jurisdiction in Israel over matters brought against the State, its military and their agencies. On a number of occasions, the legality of the establishment and construction of Israeli settlements in the OPT under the provisions of International Humanitarian Law, has been challenged by petitioning the High Court of Justice. The pronouncements of the High Court of Justice on this issue are detailed below.
[67] The appellants' claim that the High Court of Justice would refuse to hear "actions between private litigants" is devoid of merit.
[68] As noted above, it is difficult to imagine that the State of Israel would decline to participate in a dispute challenging the actions of an "Occupying State" that had allegedly contravened a provision of an international convention signed by various States.
[69] It can only be concluded that the State of Israel — which, incidentally, may well have authorized the work carried out by Green Park and Green Mount — is the party against which the appellants actually aim their claim.
[70] And finally, it bears repetition that the conclusions of the trial judgement do not rule out the possibility that the dispute be heard if necessary by another Israeli court.
[71] The first ground of appeal is therefore dismissed.
JUSTICIABILITY
[72]
The appellants claim that the law in force in
Israeli-occupied territories is "manifestly inconsistent with public order
as understood in international relations" (art.
[73] Professor Ben-Naftali seems to acknowledge that the High Court of Justice admitted in Dweikat that the application of international law was a "justiciable" issue :
In a 1979 the Israeli High Court of Justice was asked to determine the issue yet again in Dweikat v Government of Israel, known locally as the "Elon Moreh" case. In this instance, the Israeli Army seized private land near the West Bank City of Nablus for the establishment of an Israeli settlement. The State then claimed that the land was seized for military purposes and that judicial precedent prevented the Israeli Court from hearing a petition demanding that the court prohibit or restrict the State's Settlement Policy. The Court dismissed the state's non-justiciability argument and ruled in favour of the petitioners on the grounds that the government-directed army's act of seizure had not been motivated by true military needs, but rather by ideological and political motivations. This was the first and only case in which the Israeli High Court of Justice judicially reviewed the legality of settlement establishment and construction in the Occupied Palestinian Territories. Emphasizing the controversial decision of the Court to rule on the matter of the legality of settlements, Chief Justice Landau stated:
…There is great concern that the Court will appear to have abandoned its appropriate place and will have entered the arena of the public debate, and its decision will be accepted by part of the public with applause, while it will be completely and adamantly rejected by another part. In this sense I see myself as one whose duty is to rule according to the law on every matter properly brought before the Court, a duty that is indeed forced upon me, with full advance knowledge that the wider public will not pay attention to the legal reasoning but rather only to the final conclusion, and the Court's status as an institution is likely to be injured, beyond the decisive public debates. But this is what we will do, and it is our job and our duty as judges.
[74] Professor Ben-Naftali is of the opinion that this position did not last long, however, since the High Court of Justice rejected this claim in Bargil in 1993 :
Indeed, when the matter was raised again just over a decade later, in Bargil v Government of Israel, the Court declined jurisdiction. In this case, the Petitioner challenged the legality of the settlement policy of the State of Israel for the Occupied Palestinian Territories under International Humanitarian Law. The Petitioner alleged that State policy for settlements in the Occupied Palestinian Territories was without military necessity and for the sole purpose of creating permanent settlements. In its decision, the Court reaffirmed its reasoning in the Beth El case, and stated that the matter was non-justiciable:
…not because we lack the legal tools to give judgment, but because a judicial determination, which does not concern individual rights, should defer to a political process of great importance and great significance.
[75] The expert Jarach is of the contrary opinion :
16. In paragraph 29 of the Amended Orginating Motion, Plaintiffs invoke the High Court of Justice decision in the matter of Bargil vs. The Government of Israel (HCJ 4481-91, a copy of which is attached as Schedule 12). Plaintiffs argue that:
"the matters at issue herein are not justiciable before the Israeli Courts, the whole pursuant to said decision"
17. I respectfully suggest that a reading of the said decision does not, in any way, support such statement. Citing with approval a decision of the United States Supreme Court in the matter of Warth V. Seldin, etc., Israeli Supreme Court President Shamgar speaking for the Court, states:
"In that case, the Petition was denied, inter alia, because it violated the rule that the judiciary, by virtue of its judicial self-governance, does not consider abstract matters of sweeping public significance that are merely general objections on matters of policy, best considered by the legislature or the executive."
He then goes on and very clearly states:
"In order to remove any doubt, I would add that it is not the fact that the matter regards a dispute about land in the Occupied Territories that stops us from intervening; this Court has in the past dealt more than once with Petitions about a concrete dispute with regard to Jewish settlements in Judee, Samaria or the Gaza Strip…
The Courts, however, are only prepared to hear objective, defined and specific quarrels and disputes, not abstract political arguments."
In the same Israeli decision, Supreme Court Justice Goldberg states the following:
"This Petition before us does not deal with any violation of Arab residents' property rights (as in Ayub vs. The Minister of Defence and in Duikat vs. The Government of Israel) but with the question of the legality of establishment civilian settlements in the Occupied Territories, for reasons other than security reasons.
…
In my opinion, the crux of the matter is whether this dispute should properly be determined by the Court, notwithstanding our ability to rule on it as a matter of law. In other words, does this case fall into the category of the few cases where this Court will deny a Petition for lack of institutional justicity (in the terminology of Justice Barak in HCJ 910-88 - Ressler vs. Minister of Defence…). I believe that we must answer this question in the affirmative. This is not because we lack the legal tools to give judgment, but because a judicial determination, which does not concern individual rights should defer to a political process of great importance and great significance." (Emphasis added)
And Justice Orr adds what follows:
"This is not a concrete Petition relating to a specific settlement, with all the special factual details and conditions relating to such a settlement or to an infringement of any property rights of one of the residents of such areas."
…
22. To the date of this Affidavit, no application made by Petitioner, Yassin and others against Green Park International Inc. and Green Mount International Inc. with respect to the development taking place in the area of the Village of Bil'in, and which is the object of the proceedings instituted by Plaintiffs before the Superior Court of the Province of Quebec, have been deemed by the High Court of Justice to be non-judiciable and, consequently, all such petitions have been dealt with by the Court and duly decided upon on their merits;
[76] The trial judge was faced with two divergent expert opinions. He chose to accept that of the expert Jarach. In addition, he based his conclusion on his own analysis of the judgments of the High Court of Justice referred to by the experts.
[77] He found that the appellants had not established that the courts of Israel, and the High Court of Justice in particular, would find their claims to be inadmissible because their complaint does not concern a "justiciable" issue.
[78] Trial judges must decide between contradictory expert opinions; what is more, they are not bound by such opinions. They may draw on the basis of contested facts certain inferences toward which an appellate court must show a degree of deference.[11]
[79] The appellants have not shown that the trial judge committed an error justifying the intervention of this Court.
[80] The second ground of appeal is therefore dismissed.
FACTORS IN SPAR AEROSPACE
[81] The appellants take issue with the trial judge's analysis of the factors in Spar Aerospace.
[82] The trial judge's conclusion concerning the residence of the parties and the witnesses, the location of the material evidence, the execution of the work, the location of the defendants' assets, and the need to have the judgement recognized in another jurisdiction appear to be beyond dispute. The appellants' claims on this point are without merit.
[83] The complaint concerning the applicable law was the subject matter of a second ground of appeal and has already been discussed.
[84] Regarding the advantages conferred by the choice of forum, the appellants fault the trial judge for having written that the action had merely a "superficial" connection with Quebec.
[85] The appellants are correct to argue that the principal party, Gideon Badt, who chose to incorporate in Quebec in order to take advantage of tax benefits, cannot now avoid the obligations arising from his choice.
[86] That said, the fact remains that the dispute pits citizens of the West Bank against corporations carrying out work in the West Bank in compliance with the law applicable in the West Bank. It requires a great deal of imagination to claim that the action has a serious connection with Quebec.
[87] Thus, the trial judge did not err in his assessment of the criteria.
[88] As for the interest of the parties, and given all the factors taken together, it is difficult to conclude that the judge erred in finding that it was in the interest of the parties to have the case heard before a court in the place of residence of the parties and witnesses and where the events at issue are occurring.
[89] Finally, regarding the interest of justice, the trial judge correctly noted that the appellants did not implead the purchasers of the new residential units. It is difficult to imagine how a Quebec court could order the evacuation of the owners without their having been impleaded.
[90] The trial judge noted in passing that there is no Canadian legislative provision relating to the civil liability of its citizens in a foreign country in such circumstances :
[323] In the United States of America, legislation expressly grants jurisdiction to American courts over civil claims brought by aliens and based on torts committed abroad. No such legislation exists in Canada. The Plaintiffs did not submit any precedent of a Canadian court acknowledging that a person may be found civilly liable in Canada for having participated abroad in a war crime as defined by international instruments, neither is the Court aware of any such precedent.
INCIDENTAL APPEAL
[91]
Green Park, Green Mount, and Laroche bring an
incidental appeal seeking an order for damages including extrajudicial fees, as
well as punitive damages. They base their claim on art.
54.4 On ruling whether an action or pleading is improper, the court may order a provision for costs to be reimbursed, condemn a party to pay, in addition to costs, damages in reparation for the prejudice suffered by another party, including the fees and extrajudicial costs incurred by that party, and, if justified by the circumstances, award punitive damages.
If the amount of the damages is not admitted or may not be established easily at the time the action or pleading is declared improper, the court may summarily rule on the amount within the time and under the conditions determined by the court.
[92] Green Park, Green Mount, and Laroche claim that the appellants' action is clearly without merit and improper. They insist that Laroche's role is limited, referring to comments made by counsel for the appellants in an interview with a journalist from The Canadian Press :
80. In his interview before La Presse Canadienne, Mr. Arnold made the following statements concerning individual Defendant Laroche:
[translation]
Montrealer Annette Laroche is registered as director, president, and secretary of Green Mount International Inc. and Green Park International. But the Canadian lawyer for the Village of Bil'in, Mark Arnold, believes that she is simply a figurehead.
"We believe that she is just the secretary at the offices of the lawyers who incorporated the company," he explains. "I have no evidence showing that she has done anything wrong. However, she is responsible for the conduct of this company."
[93] The incidental appeal must be dismissed.
[94] First, it must be noted that no similar application was made in the court below.[12] As for the appeal, the proceedings are not improper.
[95] As for the ground pertaining more particularly to Ms. Laroche, it must be said first that in her present capacity she cannot claim to be a mere front (un simple prête-nom). If she chooses to be an officer and director of these corporations, she becomes bound by the duties arising from her status.
[96] As for her total lack of participation in the acts alleged against Green Park and Green Mount, the trial judge arrived at the following conclusion, which is reasonable :
[194] The Defendants note the absence of allegation that Defendant Laroche had any actual knowledge of the Corporations' activities and contend that being their sole director and officer does not suffice, in and of itself, to attract personal liability on an extracontractual basis.
…
[200] The following allegations also allow to infer Defendant Laroche's knowledge:
- Defendant Laroche was the sole director and officer of the Corporations for a period of time during which the Corporations were building and selling condominium units in the West Bank;
- the Corporations sold these units only to Israeli citizens pursuant to the illegal Policy;
- Israeli settlements in the occupied territories of the West Bank are illegal.
[201] Under the circumstances, particularly the location, nature, size and complexity of the development project, it may reasonably be inferred that, being the only person in authority, Defendant Laroche was aware of the above activities and that she personally authorized them knowing that this was wrong.
[202] If proven, these allegations and inferences are sufficiently serious, precise and concordant to allow the trial judge to conclude that Defendant Laroche knowingly directed the Corporations to participate in the commission of a grave illegality by Israel - an extracontractual fault - and, that in so doing, she also personally committed an extracontractual fault pursuant to Québec law.
[203] Given that the Plaintiffs' injuries may have resulted from such fault, her personal liability cannot be excluded on the mere basis of the allegations found in the Action.
[97] Finally, and above all, the trial judge did not decide that the proceeding was frivolous or clearly unfounded. He held that the appellants’ action could survive various exceptions to dismiss but that a more appropriate forum for this litigation is a court in the State of Israel. Again, there is no reason for this court to vary these conclusions.
[98] Therefore, the incidental appeal is dismissed.
[99] For these reasons, the Court DISMISSES the appeal with costs and DISMISSES the incidental appeal with costs.
[1] L.R.Q., c. C-38.
[2] 50 R.T.N.U. 75.
[3]
[4]
[5] Bargil and others v. Government of Israel et als., HCJ 4481/91, August 25, 1993.
[6] Ayub and others v. The Minister of Defense et als., HCJ 606/78 and HCJ 610/78, March 15, 1979.
[7] Duikat and others v. The Government of the State of Israel et als., HCJ 390/79, October 22, 1979.
[8] British Columbia (Minister of Forests) v. Okanagan Indian
Band,
[9] It should be noted that the dispute, heard on February 18, 2007, before the Supreme Court sitting as the High Court of Justice, Ahmed Issa Abdallah Yassin opposed the Government of Israel as well as Green Park and Green Mount, among others: HCJ 8414/05, September 4, 2007.
[10] See, for example: Droit de la famille - 093066,
[11] H.L. v. Canada (Attorney General),
[12] L'article 54.4 C.p.c. est entré en vigueur quelques jours avant l'audition en première instance tenue les 22, 23 et 25 juin 2009.
AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans
appel; la consultation
du plumitif s'avère une précaution utile.