In this case, the Nova Scotia Court of Appeal held that recognition of a Trinidadian marriage in extremis as a valid marriage under the Nova Scotia Wills Act did not require the Court to also apply, under the principle of comity, the entire Trinidadian law governing such marriages. Therefore, the Court held that such marriages can revoke a prior will, in accordance with the Wills Act, even though Trinidadian law would produce the opposite outcome.
In 1989, the appellant's ex-husband, Dr. Davies, executed a will naming her the principle beneficiary and executrix. Following their divorce, Dr. Davies began a relationship with the respondent, and the two entered into a marriage in extremis in Trinidad and Tobago in July 2007. The trial judge found that the marriage between Dr. Davies and Ms. Collins in Trinidad, although its form was not recognized in Nova Scotia, constituted a marriage within the meaning laid out in s. 17 of the Wills Act. Then, the trial judge applied Nova Scotia law to determine that the marriage revoked the original will.
The appellant argued that Trinidadian law should have been applied to the case as a whole. Noting that comity is not a term of art in the conflict of laws, but rather a principle of international law requiring that states respect one another's legal actions, the Court rejected the appellant's argument. Recognizing the marriage in extremis as a valid marriage under Nova Scotia law did not necessitate applying provisions of Trinidadian law that contradicted Nova Scotia law. The Court also noted that Mr. Davies' presumed intention in drafting the will was that it be governed by Nova Scotia law.
September 13, 2011
Link to Decision
Sierra Robart & Kai Sheffield
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Showing posts with label International. Show all posts
Showing posts with label International. Show all posts
Tuesday, September 13, 2011
Tuesday, August 23, 2011
Northwest Atlantic Fisheries Organization v. Amaratunga 2011 NSCA 73
In this case, the Nova Scotia Court of Appeal considered the extent to which an international organization has immunity within Canada.
Justice MacDonald determined that immunity is accorded in “any domestic suit that stands to interfere with [the international organization’s] autonomy in performing its functions. Therefore, simple interference suffices, and a greater level of interference, such as “significant”, “excessive” or “impermissible” interference, need not be found.
The case arose when a wrongful dismissal suit was brought against the Northwest Atlantic Fisheries Organization ("NAFO"), an international body headquartered in Nova Scotia. NAFO challenged the jurisdiction of the Supreme Court of Nova Scotia to adjudicate the matter, citing international law and the NAFO Immunity Order. Canada had issued an immunity order to NAFO pursuant to the Privileges and Immunities (International Organizations) Act (succeeded by the Foreign Missions and International Organizations Act). The NAFO Immunity Order provides that NAFO should have certain privileges and immunities “to the extent as may be required for the performance of its functions.” The court is tasked with interpreting the phrase “required for the performance of its function.”
MacDonald, C.J.N.S. reasoned that the immunity of an international organization is rooted in the necessity to preserve the organization’s autonomy to carry out its functions. Thus, immunity is accorded in “any domestic suit that stands to interfere with NAFO’s autonomy in performing its functions.” In coming to this conclusion, the court explicitly rejected both a broader view that immunity should be granted to every action simply related to performance of NAFO’s functions and a more restricted view that immunity would only be available if the proposed lawsuit would threaten the NAFO’s operations. Applying this reasoning, the court determined that by subjecting NAFO’s core operations to judicial scrutiny, and the consequent possibility of the court condemning NAFO’s management structure, assuming jurisdiction in this case would interfere with NAFO’s autonomy. The court thus held that the Supreme Court of Nova Scotia did not have jurisdiction to adjudicate this matter. MacDonald, C.J.N.S. noted that his interpretation leaves the plaintiff in this case without an enforceable legal remedy, but speculated that NAFO might nevertheless voluntarily extend some sort of remedy to the plaintiff; “After all, if such international organizations are to attract domestic employees, they must earn a reputation of treating their employees fairly. NAFO would be no exception.”
August 23, 2011
Link to Decision
Rebecca Crangle
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Justice MacDonald determined that immunity is accorded in “any domestic suit that stands to interfere with [the international organization’s] autonomy in performing its functions. Therefore, simple interference suffices, and a greater level of interference, such as “significant”, “excessive” or “impermissible” interference, need not be found.
The case arose when a wrongful dismissal suit was brought against the Northwest Atlantic Fisheries Organization ("NAFO"), an international body headquartered in Nova Scotia. NAFO challenged the jurisdiction of the Supreme Court of Nova Scotia to adjudicate the matter, citing international law and the NAFO Immunity Order. Canada had issued an immunity order to NAFO pursuant to the Privileges and Immunities (International Organizations) Act (succeeded by the Foreign Missions and International Organizations Act). The NAFO Immunity Order provides that NAFO should have certain privileges and immunities “to the extent as may be required for the performance of its functions.” The court is tasked with interpreting the phrase “required for the performance of its function.”
MacDonald, C.J.N.S. reasoned that the immunity of an international organization is rooted in the necessity to preserve the organization’s autonomy to carry out its functions. Thus, immunity is accorded in “any domestic suit that stands to interfere with NAFO’s autonomy in performing its functions.” In coming to this conclusion, the court explicitly rejected both a broader view that immunity should be granted to every action simply related to performance of NAFO’s functions and a more restricted view that immunity would only be available if the proposed lawsuit would threaten the NAFO’s operations. Applying this reasoning, the court determined that by subjecting NAFO’s core operations to judicial scrutiny, and the consequent possibility of the court condemning NAFO’s management structure, assuming jurisdiction in this case would interfere with NAFO’s autonomy. The court thus held that the Supreme Court of Nova Scotia did not have jurisdiction to adjudicate this matter. MacDonald, C.J.N.S. noted that his interpretation leaves the plaintiff in this case without an enforceable legal remedy, but speculated that NAFO might nevertheless voluntarily extend some sort of remedy to the plaintiff; “After all, if such international organizations are to attract domestic employees, they must earn a reputation of treating their employees fairly. NAFO would be no exception.”
August 23, 2011
Link to Decision
Rebecca Crangle
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Friday, July 15, 2011
The Minister of Citizenship v. Immigration and Rachidi Ekanza Ezokola, 2011 FCA 224
In The Minister of Citizenship and Immigration v. Rachidi Ekanza Ezokola, the Federal Court of Appeal considered whether a senior official with a foreign government, who remains in his or her position without protest and continues to defend the interests of his or her government while being aware of the crimes committed by this government, can nonetheless be considered a refugee under s. (1)(F) of the United Nations Convention relating to the Status of Refugees. The court held that such a conclusion is possible, and clarified the legal test on whether such an individual has been complicit in the crimes committed by his or her government.
In the Court’s view, a senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by this government, demonstrate “personal and knowing participation” in these crimes and, thus, be complicit with the government in their commission. However, the final outcome will always depend on the facts particular to each case.
The Court noted that the test to determine complicity does not necessarily require personal participation by the individual in the crimes alleged, whether by carrying them out personally or facilitating their commission in the manner described; such a rendering of the “personal and knowing participation” test is too narrow. The Court also distinguished between the “personal and knowing participation” test and a “personal and knowing awareness” test, noting that the latter is too broad and, thus, an error of law.
In obiter, the Court called for an end to using the term “complicity by association,” arguing that it is misleading since it is contribution to the commission of a crime (i.e. personal and knowing participation) rather than simply association that leads to liability. Instead, it argued, “complicity” alone should be referred to.
July 15, 2011
Link to Decision
Mark Carter & Dominik Swierad
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In the Court’s view, a senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by this government, demonstrate “personal and knowing participation” in these crimes and, thus, be complicit with the government in their commission. However, the final outcome will always depend on the facts particular to each case.
The Court noted that the test to determine complicity does not necessarily require personal participation by the individual in the crimes alleged, whether by carrying them out personally or facilitating their commission in the manner described; such a rendering of the “personal and knowing participation” test is too narrow. The Court also distinguished between the “personal and knowing participation” test and a “personal and knowing awareness” test, noting that the latter is too broad and, thus, an error of law.
In obiter, the Court called for an end to using the term “complicity by association,” arguing that it is misleading since it is contribution to the commission of a crime (i.e. personal and knowing participation) rather than simply association that leads to liability. Instead, it argued, “complicity” alone should be referred to.
July 15, 2011
Link to Decision
Mark Carter & Dominik Swierad
*
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