Sovereign immunity—Canada—Q&A guide [Archived, 2021 edition]

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Sovereign immunity—Canada—Q&A guide [Archived, 2021 edition]
  • 1. What is the general approach to the concept of sovereign immunity in your state?
  • 2. What is the legal basis for the doctrine of sovereign immunity in your state?
  • 3. Is your state a party to any multilateral treaties on sovereign immunity? Has the state made any reservations or declarations regarding the treaties?
  • 4. Describe domestic law governing the scope of jurisdictional immunity.
  • 5. How can the state, or its various organs and instrumentalities, waive immunity or consent to the exercise of jurisdiction?
  • 6. In which types of transactions or proceedings do states not enjoy immunity from suit (even without the state’s consent or waiver)? How does the law of your country assess whether a transaction falls into one of these categories?
  • 7. If one of the exceptions to sovereign immunity set out above applies, is there any related principle that could prevent a court having jurisdiction over the state?
  • 8. To what extent do proceedings against a state enterprise or similar entity affect the immunity enjoyed by the state? Is there precedent for piercing the corporate veil to subject the state itself to those proceedings?
  • 9. What is the nexus the plaintiff needs to have standing to bring a claim against a state?
  • More...

Sovereign immunity—Canada—Q&A guide [Archived, 2021 edition]

This Practice Note contains a jurisdiction-specific Q&A guide to sovereign immunity in Canada published as part of the Lexology Getting the Deal Through series by Law Business Research (published: May 2020).

Authors: Norton Rose Fulbright—Alison G FitzGerald; Azim Hussain

1. What is the general approach to the concept of sovereign immunity in your state?

Canada takes a restrictive approach to state immunity. That is, legislation provides for certain exceptions to the principle of state immunity consistent with the trend in industrial democracies restricting the scope of state immunity.

2. What is the legal basis for the doctrine of sovereign immunity in your state?

In Canada, state immunity from civil proceedings is governed by the State Immunity Act, RSC c S-18 (SIA). Section 3 of the SIA sets out the basic principle that foreign states are immune from the jurisdiction of any Canadian court except as provided in the SIA. The Supreme Court of Canada has described the SIA as a complete code as it relates to state immunity from civil proceedings in Canada such that it ousts the common law and international law as a potential source of exceptions to the immunity otherwise provided for in the SIA (see Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62, paragraphs 54 and 58). The common law and international law remain, however, valid interpretative guides for

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