PROCESSI CONTRO LA NATO PER CRIMINI DI GUERRA:
IL CASO CANADESE
INDICTING NATO FOR WAR CRIMES:
THE CANADIAN CASE
---
> http://www.ottawacitizen.com/national/010113/
5094984.html
> http://www.nationalpost.com/news/
national/story.html?f=/stories/20010113/436178.html
National - Ottawa Citizen Online
Saturday 13 January 2001
Serbs win right to sue Canada
Expatriates want $75M for NATO bombing
Tom Blackwell
The Ottawa Citizen
TORONTO -- In what's being hailed as a
precedent-setting ruling, a group of mostly
expatriate Serbs has won the right to sue the
Canadian government over NATO's bombing of
their homeland.
A Superior Court of Ontario judge this week
rejected a request by federal lawyers to toss
the case out before it even gets to trial.
It marks the first time a Canadian court has
given the go-ahead to a suit that deals with
Canada's actions in a foreign land, Emilio
Binavince, lawyer for the Serb nationals and
Serb-Canadians, said yesterday.
A similar lawsuit by relatives of a Somalian
teenager beaten to death by Canadian soldiers
was not allowed to proceed, he noted.
"This is a great victory," Mr. Binavince said
after the judge's ruling.
"For the first time, a wrong committed by the
Canadian government outside the country is the
subject of a suit (that's proceeding to
trial)."
The claim was launched by 50 Canadians of
Serbian origin and seven Serb nationals over
the NATO bombing campaign against the country
in the spring of 1999.
Eighteen Canadian CF-18 Hornet jet fighters
took part in the air strikes, accounting for
about 10 per cent of the 6,700 sorties flown
by war planes of the North Atlantic Treaty
Organization.
The attacks were designed to pressure Slobodan
Milosevic, then president of Serbia, to end
attacks on ethnic Albanians in the district of
Kosovo.
Mr. Milosevic was later indicted as a war
criminal by an international tribunal, and
then overthrown last year in a bloodless
uprising.
But the suit alleges that Canada violated both
international law and the Charter of Rights
and Freedoms by taking part in the campaign.
It demands $75 million in compensation for
deaths, injuries and property damage suffered
by the plaintiffs and their relatives in
Serbia.
Among other things, the federal government had
claimed that individuals cannot sue Canada
over its obligations under international law,
arguing that only other countries can do so.
Justice Gordon Sedgwick of the Superior Court
disagreed.
"They are not seeking to enforce an
international obligation of Canada," Judge
Sedgwick said in his judgment.
"They are asking this court to determine
whether the allegedly 'illegal' actions of
Canadian ministers and civilian and military
officials in participating in the NATO
bombardments of Yugoslavia ... may be
characterized as wrongful acts (for the
purposes of a suit in the courts here). I am
not persuaded that they are prohibited by law
from doing so."
Judge Sedgwick also rejected federal arguments
that Canadian courts can't rule on issues
involving the government's "royal prerogative"
to participate in foreign affairs and
international military actions.
Ed Sojonky, the senior Justice Department
lawyer representing Canada in the case, said
the government will decide within a couple of
weeks whether to appeal, but in the meantime
he wouldn't comment on the ruling.
"Our position has always been that there is no
merit to the claim," he said.
The judgment wasn't all positive for the
Serbs. Judge Sedgwick gave the plaintiffs 60
days to update their statement of claim to
spell out exactly how each of them was
directly affected by the bombing.
---
==========================================Von: petar <petar@...>
Datum: 2001/01/13 Sat AM 05:11:47 CET
An: w.schulz@...
Betreff: Re: Court Decision / Endorcement in
regard to our Lawsuit
COURT FILE NO.: 99-CV-1 1304 DATE: 20010110
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: STEVAN ALEKSLC ET AL v. THE ATTORNEY
GENERAL OF CANADA
BEFORE:
COUNSEL:
SEDOWICK J.
Edward R. Sojonky, Q.C. and Elizabeth
Richards, for the defendant (moving party) and
Emilio S. Binavince, for the plaintiffs
(respondents)
ENDORSEMENT
Seduwick J.:
(1] The defendant moves to strike out the
plaintiff's statement of claim in this action
with costs.
[2] The statement of claim was issued on
September 15, 1999. There are 57 plaintiffs.
The ~0 plaintiffs identified as "Part A
Plaintiffs" are citizens or permanent
residents/landed immigrants resident in Canada
of Yugoslav heritage, 5 of them having dual
Canadian/Yugoslav citizenship's. The 7
remaining plaintiff identified as "Part B
Plaintiffs" are Yugoslav citizens resident in
Kosovo/Serbia/Federal Republic of Yugoslavia
('Yugoslavia").
[3] The statement of claim alleges that from
March 24 to June 1, 1999, Canada participated
in missile and aerial bombardments and the
military occupation of parts of Yugoslavia by
armed forces of the members of the North
Atlantic Treaty Organization ('~ATO") in
relation to internal civil strife in Kosovo.
These actions were allegedly carried out by
the Ministers and officials of the Department
of Foreign Affairs and International Trade and
of the Department of National Defense. Their
actions are alleged to be contrary to
customary and Conventional international law
incl6ding the United Nations Charter and the
Kellogg-Briand Pact, 1928. Their "illegal
acts" are common law torts and infringements
of rights under the Charter of Canadian Rights
and Freedoms (the "Charter').
[4] The Part A Plaintiffs seek general damages
of $50,000,000 together with special damages
and exemplary or punitive damages of
$10,000,000 for tort under S. 3(a) of the
Crown Liability and Proceedings Act "CLPA")
and as a remedy under S. 24(1) of the Charter.
Specific infringements of Charter rights are
alleged in paragraph 15 of the statement of
claim as to 5. 7 of the Charter and in
paragraph 16, as to 5.15 of the Charter It is
alleged that at all material times during the
bombardment period these plaintiffs
"sojourned21 in Yugoslavia or had family or
relatives living there or had contractual
relations with persons living or doing
business there. -2-
[5] The Part B Plaintiffs, all residents of
Yugoslavia, seek general damages of
$15,000,000 together with special damages and
exemplary or punitive damages of $1,000,000
for ton under S. 3(a) of the CLPA.
(6] All p1ainti~ seek interest in accordance
with the CLPA and their costs On a
solicitor/client scale. In the statement of
claim, the plaintiffs also seek an injunction
to restrain the Government of Canada from
using public funds to participate in NATO
military actions directed to aggressive war or
the occupation of any part of Yugoslavia other
than for humanitarian purposes. The claim for
injunctive relief is probably moot and, in
event, was not canvassed to any degree before
me. The gist of this action is the plaintiffs'
claims for damages.
[7] As to the tort claims of all plaintiffs
under S. 3(a) of the CILPA based on the
alleged "illegal acts" of Ministers and
officials of the Government of Canada (see
para. [3] above), damages are claimed for the
common law tons of assault and battery,
intimidation, intentional infliction of
nervous shock, negligence and interference
with contractual arid business interests and
relations with others.
[8] Separate Charter and tort claims are
pleaded for:
(a) unlawful expenditure of public funds for
other than lawfi'1 or constitutionally valid
purposes; (b) unlawful use by NATO armed
forces of weapons with toxic radioactive
components including depleted uranium contrary
to international law; (c) unlawful use by
NATO armed forces of area weapons including
cluster bombs contrary to international law;
and (d) unlawful destruction or damage to
factories, warehouses and other storage
facilities and refineries used to store or
process chemically dangerous toxic or
carcinogenic substances.
[9] The defendant moves to strike out the
statement of claim under Rule 21.01(1)(b) of
the Rules of Civil Procedure on the ground
that it discloses no reasonable cause of
action. The defendant also moves to have this
action dismissed under Rule 21 .01(3)(a) and
(d) on grounds that the court has no
jurisdiction over, the subject matter of the
action and that the action is frivolous and
vexatious or otherwise an abuse of the process
of the court,
[10] The test to be applied to determine
whether the statement of claim in this action
ought to be struck out may be stated in these
terms. Taking the material facts pleaded as
proven, do they disclose a reasonable cause of
action, do they disclose a reasonable cause of
action, that is, one "with some chance of
success"; or is it "plain and obvious that the
action cannot succeed"? Operation Dismantle
Inc. teat V. The Queen (1985] 1 S.C.R. 441 at
486-7 (per Wilson J.), Citing Drummond-Jackyon
v. British Medical Association f1970] I All
E.R. 1084 and Dawson v. Government of Canada
(1981) 37 N.R. 127, 138 (Fed. C.A.) per LeDain
3. A "plain and obvious" case has been
described as one where the court is satisfied
that "the case is beyond doubt'. Canada (A. C)
V. mutt Tapirisar of Canada [1980] 2 S.C.R.
735, 740 (per Estey 3.) citing RQSS ~ Scottish
Union. and National Insurance Co. (1920), 47
O.L.R. 308 (Ont. 3- App Div.). Novelty or
complexity of a cause of action pleaded in a
statement of claim ought not to weigh against
the plaintiff on a motion to strike a
statement of claim. Nor ought such a motion be
allowed on a question of law which has not
been hilly settled in the decided cases.
[11] In applying the test, the court is
"obliged to read the statement of claim as
generously as possible and to accommodate any
inadequacies in the form of the allegations
which are merely the result of drafting
deficiencies". (Operation Dismantle case, op.
cit, 451, per Dickson J.] as he then was.
however, what are to be taken as proven in the
statement of claim are the material facts, not
conclusions of law or allegations of possible
consequences of alleged wrongful acts that are
based only on assumptions or speculations
which by their very nature cannot be proven as
true by adducing evidence. (Operation
Dismantle case, op. cit., 455, per Dickson J.).
[12] In the Operation Dismantle case, the
Supreme Court of Canada considered whether the
appellants'' statement of claim should be
struck out as disclosing no reasonable cause
of action. The appellants alleged that a
decision made by the Canadian government to
allow the United States to test cruise
missiles in Canada violated or threatened to
violate 5.7 of the Charter. Declamatory
relief, an injunction and damages were sought
in the statement of claim. A judge of the
Federal Court, Trial Division dismissed the
motion to strike. The Federal Court of Appeal
reversed his decision, struck the statement of
claim and dismissed the action. A flintier
appeal to the Supreme Court of Canada was
dismissed. In dismissing the appeal, however,
the Court affirmed that decisions of the
executive branch of the Canadian government
are reviewable by the courts under 5. 32(l)(a)
of the Charter even though they raise what may
be characterized as "political questions" and
are exercises of the royal prerogative.
[13] The defendant moving party submits that
the statement of claim in this action does not
meet the test outlined in paragraphs [10] and
[11] above, First, the defendant says that the
issues raised in this action are not
justifiable in a Canadian court because they
include issues of international law which are
political in nature involving the exercise of
the royal prerogative in the realms of foreign
affairs and participation in international
military actions. It is submitted that these
are issues which are inherently incapable of
adjudication or review by a court of law, or
if not incapable, at least unsuitable for such
adjudication or review. As a matter of law,
this submission is, in my view, inconsistent
with the Operation Dismantle case; and as a
matter of discretion, I would not strike the
statement of claim on this ground.
[14] Second, the defendant says that the
actions of the Canadian ministers and civilian
and military officials of which the plaintiffs
complain were taken in the exercise of royal
prerogative powers in foreign affairs and the
disposition and control of Canada's armed
forces. It is submitted that the exercise of
prerogative powers in these particular matters
is not subject to review in a Canadian court
although the exercise of some prerogative
powers may be subject to judicial review under
the Charter. As a matter of law, the
submission that any exercise of prerogative
powers is not subject to judicial review is,
in my view, too sweeping and inconsistent with
the Operation Dismantle case; and as a matter
of discretion, I would not strike the
statement of claim on this ground. See also
Hogg v. Monahan: liability of the Crown (3~
Ed), 19. -4
[15] Third, the defendant says that this court
does not have jurisdiction to determine the
legality of actions of Canadian ministers and
civilian and military officials according to
international law. Obligations by a state
under international law are only owed to and
enforceable by other states, not individuals.
In its application to the statement of claim
in this action, this submission is, in my
view, entirely too broad. In their action, the
plaintiffs are not seeking a remedy against
another state. "'hey are not seeking to
enforce an international obligation of Canada.
They are asking this court to determine
whether the allegedly "illegal" actions of
Canadian ministers and civilian and military
officials in participating in the NATO
bombardments of Yugoslavia and the subsequent
deployment of NATO forces in Kosovo may be
characterized as wrongful acts which are
actionable in damages or as violations of the
Charter. At this early stage of the action, I
am not persuaded that they are prohibited by
law from doing so. I would not strike the
statement of claim on this ground.
[16] As to the Charter, the defendant further
submits that the Charter does not apply to the
alleged "illegal' acts of the Canadian
ministers and civilian and military officials
in relation to the decisions and military
action of NATO and tat there are no
infringements of Charter fights in any event.
Allegations of infringements of rights under
ss. 7 and is of the Charter are made in the
statement of claim on behalf of the Part A
Plaintiffs only. It is not alleged that the
Part B Plaintiffs have any rights under the
Charter. As to the cause of action alleged on
behalf of all the plaintiffs in tort, the
defendant submits that it is speculative,
remote and related "to alleged causes of
action not known in tort law on these facts",
a conclusion which is also drawn in the
defendant's factum in relation to alleged
Charter infringements. In view of the decision
of the Supreme Court of Canada in the
Operation Dismantle case para. [12] above) and
the considerations of novelty, complexity and
unsettled law in applying the "plain and
obvious rest (para. [10] above)3 it would, in
my view be premature to strike the statement
of claim on these grounds at this stage of the
action.
[17) Rule 25,06(1) requires that "Every
pleading shall contain a concise statement of
the material facts upon which the party relies
for the claim or defense, ..." (emphasis
added). The statement of claim in this acti6n
is only marginally compliant with this
provision. This is not a class action. Each of
the plaintiffs has a separate and distinct
cause of action. As previously stated, the
gist of this action is the plaintiffs' damages
claim. No material facts are pleaded as to how
the individual plaintiffs were affected by the
actions of the Canadian ministers and
officials. The plaintiffs must plead the
material facts relating to each cause of
action, linking the alleged damages suffered
to the alleged wrongful acts. (Rule 25.06(9)).
This is not a deficiency which, in my view,
may be cured by particulars. This pleading is
now 15 months old and I would anticipate that
the alleged losses suffered by the plaintiffs
as a result of the alleged wrongful acts are
now identifiable. There are other deficiencies
in the statement of claim which I need not
particularize. The statement bf1clairri
requires amendment before this action proceeds
further. The plaintiffs are given leave to
amend their statement of claim 'within 60
days. I [18] The motion by the defendant to
strike the plaintiffs' claim and dismiss their
action is dismissed with cost. If the parties
are unable to agree as to costs the court is
prepared to fix them on a party/party scale
upon receiving the written submissions of
counsel within 30 days.
January 10, 2001
=============================================Von: petar <petar@...>
Datum: 2001/03/01 Thu AM 04:38:52 CET
An: (Recipient list suppressed)
Betreff: Press Conference, March 5th, 2001,
Ottawa, Canada
The Ottawa Serbian Heritage Society
3662 Albion Rd. South, Gloucester, Ontario,
K1T 1A3, serbian.heritage@...
PRESS CONFERENCE
Time: Monday, March 5, 2001, at 11:00 a.m.
Place: Charles Lynch Room, 130 C Centre
Block, Parliament Building,
Wellington Str., Ottawa
Press Release
A Question of Principle: Citizens Group to
Agree to Government Appeal in Bombing Lawsuit
OTTAWA, ONTARIO -- The Serbian Heritage
Society of Ottawa is one of the initiators of
the lawsuit against the Canadian government
regarding the bombing of Yugoslavia in 1999.
Among other demands, this suit seeks to stop
the Canadian government from any further
participation in NATO military actions pending
the determination of the legality of such
actions by the Canadian justice system. Many
of our members were born outside of Canada and
chose to come this country—to work,
live, and raise our children as
Canadians—because we believed in the
noble principles that are not only the
foundation of its constitutional system but
that also represent the core beliefs of its
people and the basis for its culture. These
principles, which include fundamental
convictions about the rule of law, fairness,
tolerance, and the peaceful resolution of
conflict, are the reason why Canada and
Canadians command so much respect throughout
the world. It is, of course, the civic duty of
every Canadian citizen to uphold and guard
these principles. However, for those of us who
understand from personal experience how
difficult they are to establish and how
difficult they are to sustain in today’s
conflict-ridden world, there is a particular
urgency to defend them when they are
threatened. Furthermore, when this threat
comes from very powerful individuals who are
at the very head of our government, this need
is even more compelling. The government is not
above the law. In the course of 78 days,
Canadian planes and Canadian pilots were
ordered to bomb an innocent and helpless
civilian population, to destroy their homes
and property, to poison their environment. The
result is compounded human misery, a
dangerously polluted habitat, expansion of
terrorist activity, and a destabilization of
the entire region. This act of war was
undertaken against a country that was at peace
with its neighbours and that was not
threatening either Canada or any of its
allies. It was done without a mandate from the
United Nations, the Parliament of Canada, or
the Canadian people. There cannot be any
clearer examples of wanton and irresponsible
exercise of power by an arrogant elite who
clearly consider themselves outside the law.
No one should be allowed to get away with
that; it is a threat to our fundamental
democratic rights and civil liberties.
Therefore, the principal issue of this suit is
not about money or personal gain of any kind.
Members of the Society have committed to
donate the bulk of any momentary compensation
that they might receive to charity. It is also
not about politics – our ethnic origin
is immaterial here. It is about principle and
about responsibility: the government is not
above the law. Conseqeuntly, our objective is
to have this crucial issue addressed at the
highest judicial level possible and as soon as
possible. We approach this litigation in good
faith and have instructed our lawyer, Dr.
Emilio Binavince, to agree to the
Government’s appeal for escalating the
case to a higher court. Our objective is
simple but fundamental: the people must
control the actions of the high and the
mighty, the Government is not and must not be
above the law.
This press release is issued by the Serbian
Heritage Society of Ottawa. The society and
its members can be contacted via e-mail at:
serbian.heritage@...
=============================================
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IL CASO CANADESE
INDICTING NATO FOR WAR CRIMES:
THE CANADIAN CASE
---
> http://www.ottawacitizen.com/national/010113/
5094984.html
> http://www.nationalpost.com/news/
national/story.html?f=/stories/20010113/436178.html
National - Ottawa Citizen Online
Saturday 13 January 2001
Serbs win right to sue Canada
Expatriates want $75M for NATO bombing
Tom Blackwell
The Ottawa Citizen
TORONTO -- In what's being hailed as a
precedent-setting ruling, a group of mostly
expatriate Serbs has won the right to sue the
Canadian government over NATO's bombing of
their homeland.
A Superior Court of Ontario judge this week
rejected a request by federal lawyers to toss
the case out before it even gets to trial.
It marks the first time a Canadian court has
given the go-ahead to a suit that deals with
Canada's actions in a foreign land, Emilio
Binavince, lawyer for the Serb nationals and
Serb-Canadians, said yesterday.
A similar lawsuit by relatives of a Somalian
teenager beaten to death by Canadian soldiers
was not allowed to proceed, he noted.
"This is a great victory," Mr. Binavince said
after the judge's ruling.
"For the first time, a wrong committed by the
Canadian government outside the country is the
subject of a suit (that's proceeding to
trial)."
The claim was launched by 50 Canadians of
Serbian origin and seven Serb nationals over
the NATO bombing campaign against the country
in the spring of 1999.
Eighteen Canadian CF-18 Hornet jet fighters
took part in the air strikes, accounting for
about 10 per cent of the 6,700 sorties flown
by war planes of the North Atlantic Treaty
Organization.
The attacks were designed to pressure Slobodan
Milosevic, then president of Serbia, to end
attacks on ethnic Albanians in the district of
Kosovo.
Mr. Milosevic was later indicted as a war
criminal by an international tribunal, and
then overthrown last year in a bloodless
uprising.
But the suit alleges that Canada violated both
international law and the Charter of Rights
and Freedoms by taking part in the campaign.
It demands $75 million in compensation for
deaths, injuries and property damage suffered
by the plaintiffs and their relatives in
Serbia.
Among other things, the federal government had
claimed that individuals cannot sue Canada
over its obligations under international law,
arguing that only other countries can do so.
Justice Gordon Sedgwick of the Superior Court
disagreed.
"They are not seeking to enforce an
international obligation of Canada," Judge
Sedgwick said in his judgment.
"They are asking this court to determine
whether the allegedly 'illegal' actions of
Canadian ministers and civilian and military
officials in participating in the NATO
bombardments of Yugoslavia ... may be
characterized as wrongful acts (for the
purposes of a suit in the courts here). I am
not persuaded that they are prohibited by law
from doing so."
Judge Sedgwick also rejected federal arguments
that Canadian courts can't rule on issues
involving the government's "royal prerogative"
to participate in foreign affairs and
international military actions.
Ed Sojonky, the senior Justice Department
lawyer representing Canada in the case, said
the government will decide within a couple of
weeks whether to appeal, but in the meantime
he wouldn't comment on the ruling.
"Our position has always been that there is no
merit to the claim," he said.
The judgment wasn't all positive for the
Serbs. Judge Sedgwick gave the plaintiffs 60
days to update their statement of claim to
spell out exactly how each of them was
directly affected by the bombing.
---
==========================================Von: petar <petar@...>
Datum: 2001/01/13 Sat AM 05:11:47 CET
An: w.schulz@...
Betreff: Re: Court Decision / Endorcement in
regard to our Lawsuit
COURT FILE NO.: 99-CV-1 1304 DATE: 20010110
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: STEVAN ALEKSLC ET AL v. THE ATTORNEY
GENERAL OF CANADA
BEFORE:
COUNSEL:
SEDOWICK J.
Edward R. Sojonky, Q.C. and Elizabeth
Richards, for the defendant (moving party) and
Emilio S. Binavince, for the plaintiffs
(respondents)
ENDORSEMENT
Seduwick J.:
(1] The defendant moves to strike out the
plaintiff's statement of claim in this action
with costs.
[2] The statement of claim was issued on
September 15, 1999. There are 57 plaintiffs.
The ~0 plaintiffs identified as "Part A
Plaintiffs" are citizens or permanent
residents/landed immigrants resident in Canada
of Yugoslav heritage, 5 of them having dual
Canadian/Yugoslav citizenship's. The 7
remaining plaintiff identified as "Part B
Plaintiffs" are Yugoslav citizens resident in
Kosovo/Serbia/Federal Republic of Yugoslavia
('Yugoslavia").
[3] The statement of claim alleges that from
March 24 to June 1, 1999, Canada participated
in missile and aerial bombardments and the
military occupation of parts of Yugoslavia by
armed forces of the members of the North
Atlantic Treaty Organization ('~ATO") in
relation to internal civil strife in Kosovo.
These actions were allegedly carried out by
the Ministers and officials of the Department
of Foreign Affairs and International Trade and
of the Department of National Defense. Their
actions are alleged to be contrary to
customary and Conventional international law
incl6ding the United Nations Charter and the
Kellogg-Briand Pact, 1928. Their "illegal
acts" are common law torts and infringements
of rights under the Charter of Canadian Rights
and Freedoms (the "Charter').
[4] The Part A Plaintiffs seek general damages
of $50,000,000 together with special damages
and exemplary or punitive damages of
$10,000,000 for tort under S. 3(a) of the
Crown Liability and Proceedings Act "CLPA")
and as a remedy under S. 24(1) of the Charter.
Specific infringements of Charter rights are
alleged in paragraph 15 of the statement of
claim as to 5. 7 of the Charter and in
paragraph 16, as to 5.15 of the Charter It is
alleged that at all material times during the
bombardment period these plaintiffs
"sojourned21 in Yugoslavia or had family or
relatives living there or had contractual
relations with persons living or doing
business there. -2-
[5] The Part B Plaintiffs, all residents of
Yugoslavia, seek general damages of
$15,000,000 together with special damages and
exemplary or punitive damages of $1,000,000
for ton under S. 3(a) of the CLPA.
(6] All p1ainti~ seek interest in accordance
with the CLPA and their costs On a
solicitor/client scale. In the statement of
claim, the plaintiffs also seek an injunction
to restrain the Government of Canada from
using public funds to participate in NATO
military actions directed to aggressive war or
the occupation of any part of Yugoslavia other
than for humanitarian purposes. The claim for
injunctive relief is probably moot and, in
event, was not canvassed to any degree before
me. The gist of this action is the plaintiffs'
claims for damages.
[7] As to the tort claims of all plaintiffs
under S. 3(a) of the CILPA based on the
alleged "illegal acts" of Ministers and
officials of the Government of Canada (see
para. [3] above), damages are claimed for the
common law tons of assault and battery,
intimidation, intentional infliction of
nervous shock, negligence and interference
with contractual arid business interests and
relations with others.
[8] Separate Charter and tort claims are
pleaded for:
(a) unlawful expenditure of public funds for
other than lawfi'1 or constitutionally valid
purposes; (b) unlawful use by NATO armed
forces of weapons with toxic radioactive
components including depleted uranium contrary
to international law; (c) unlawful use by
NATO armed forces of area weapons including
cluster bombs contrary to international law;
and (d) unlawful destruction or damage to
factories, warehouses and other storage
facilities and refineries used to store or
process chemically dangerous toxic or
carcinogenic substances.
[9] The defendant moves to strike out the
statement of claim under Rule 21.01(1)(b) of
the Rules of Civil Procedure on the ground
that it discloses no reasonable cause of
action. The defendant also moves to have this
action dismissed under Rule 21 .01(3)(a) and
(d) on grounds that the court has no
jurisdiction over, the subject matter of the
action and that the action is frivolous and
vexatious or otherwise an abuse of the process
of the court,
[10] The test to be applied to determine
whether the statement of claim in this action
ought to be struck out may be stated in these
terms. Taking the material facts pleaded as
proven, do they disclose a reasonable cause of
action, do they disclose a reasonable cause of
action, that is, one "with some chance of
success"; or is it "plain and obvious that the
action cannot succeed"? Operation Dismantle
Inc. teat V. The Queen (1985] 1 S.C.R. 441 at
486-7 (per Wilson J.), Citing Drummond-Jackyon
v. British Medical Association f1970] I All
E.R. 1084 and Dawson v. Government of Canada
(1981) 37 N.R. 127, 138 (Fed. C.A.) per LeDain
3. A "plain and obvious" case has been
described as one where the court is satisfied
that "the case is beyond doubt'. Canada (A. C)
V. mutt Tapirisar of Canada [1980] 2 S.C.R.
735, 740 (per Estey 3.) citing RQSS ~ Scottish
Union. and National Insurance Co. (1920), 47
O.L.R. 308 (Ont. 3- App Div.). Novelty or
complexity of a cause of action pleaded in a
statement of claim ought not to weigh against
the plaintiff on a motion to strike a
statement of claim. Nor ought such a motion be
allowed on a question of law which has not
been hilly settled in the decided cases.
[11] In applying the test, the court is
"obliged to read the statement of claim as
generously as possible and to accommodate any
inadequacies in the form of the allegations
which are merely the result of drafting
deficiencies". (Operation Dismantle case, op.
cit, 451, per Dickson J.] as he then was.
however, what are to be taken as proven in the
statement of claim are the material facts, not
conclusions of law or allegations of possible
consequences of alleged wrongful acts that are
based only on assumptions or speculations
which by their very nature cannot be proven as
true by adducing evidence. (Operation
Dismantle case, op. cit., 455, per Dickson J.).
[12] In the Operation Dismantle case, the
Supreme Court of Canada considered whether the
appellants'' statement of claim should be
struck out as disclosing no reasonable cause
of action. The appellants alleged that a
decision made by the Canadian government to
allow the United States to test cruise
missiles in Canada violated or threatened to
violate 5.7 of the Charter. Declamatory
relief, an injunction and damages were sought
in the statement of claim. A judge of the
Federal Court, Trial Division dismissed the
motion to strike. The Federal Court of Appeal
reversed his decision, struck the statement of
claim and dismissed the action. A flintier
appeal to the Supreme Court of Canada was
dismissed. In dismissing the appeal, however,
the Court affirmed that decisions of the
executive branch of the Canadian government
are reviewable by the courts under 5. 32(l)(a)
of the Charter even though they raise what may
be characterized as "political questions" and
are exercises of the royal prerogative.
[13] The defendant moving party submits that
the statement of claim in this action does not
meet the test outlined in paragraphs [10] and
[11] above, First, the defendant says that the
issues raised in this action are not
justifiable in a Canadian court because they
include issues of international law which are
political in nature involving the exercise of
the royal prerogative in the realms of foreign
affairs and participation in international
military actions. It is submitted that these
are issues which are inherently incapable of
adjudication or review by a court of law, or
if not incapable, at least unsuitable for such
adjudication or review. As a matter of law,
this submission is, in my view, inconsistent
with the Operation Dismantle case; and as a
matter of discretion, I would not strike the
statement of claim on this ground.
[14] Second, the defendant says that the
actions of the Canadian ministers and civilian
and military officials of which the plaintiffs
complain were taken in the exercise of royal
prerogative powers in foreign affairs and the
disposition and control of Canada's armed
forces. It is submitted that the exercise of
prerogative powers in these particular matters
is not subject to review in a Canadian court
although the exercise of some prerogative
powers may be subject to judicial review under
the Charter. As a matter of law, the
submission that any exercise of prerogative
powers is not subject to judicial review is,
in my view, too sweeping and inconsistent with
the Operation Dismantle case; and as a matter
of discretion, I would not strike the
statement of claim on this ground. See also
Hogg v. Monahan: liability of the Crown (3~
Ed), 19. -4
[15] Third, the defendant says that this court
does not have jurisdiction to determine the
legality of actions of Canadian ministers and
civilian and military officials according to
international law. Obligations by a state
under international law are only owed to and
enforceable by other states, not individuals.
In its application to the statement of claim
in this action, this submission is, in my
view, entirely too broad. In their action, the
plaintiffs are not seeking a remedy against
another state. "'hey are not seeking to
enforce an international obligation of Canada.
They are asking this court to determine
whether the allegedly "illegal" actions of
Canadian ministers and civilian and military
officials in participating in the NATO
bombardments of Yugoslavia and the subsequent
deployment of NATO forces in Kosovo may be
characterized as wrongful acts which are
actionable in damages or as violations of the
Charter. At this early stage of the action, I
am not persuaded that they are prohibited by
law from doing so. I would not strike the
statement of claim on this ground.
[16] As to the Charter, the defendant further
submits that the Charter does not apply to the
alleged "illegal' acts of the Canadian
ministers and civilian and military officials
in relation to the decisions and military
action of NATO and tat there are no
infringements of Charter fights in any event.
Allegations of infringements of rights under
ss. 7 and is of the Charter are made in the
statement of claim on behalf of the Part A
Plaintiffs only. It is not alleged that the
Part B Plaintiffs have any rights under the
Charter. As to the cause of action alleged on
behalf of all the plaintiffs in tort, the
defendant submits that it is speculative,
remote and related "to alleged causes of
action not known in tort law on these facts",
a conclusion which is also drawn in the
defendant's factum in relation to alleged
Charter infringements. In view of the decision
of the Supreme Court of Canada in the
Operation Dismantle case para. [12] above) and
the considerations of novelty, complexity and
unsettled law in applying the "plain and
obvious rest (para. [10] above)3 it would, in
my view be premature to strike the statement
of claim on these grounds at this stage of the
action.
[17) Rule 25,06(1) requires that "Every
pleading shall contain a concise statement of
the material facts upon which the party relies
for the claim or defense, ..." (emphasis
added). The statement of claim in this acti6n
is only marginally compliant with this
provision. This is not a class action. Each of
the plaintiffs has a separate and distinct
cause of action. As previously stated, the
gist of this action is the plaintiffs' damages
claim. No material facts are pleaded as to how
the individual plaintiffs were affected by the
actions of the Canadian ministers and
officials. The plaintiffs must plead the
material facts relating to each cause of
action, linking the alleged damages suffered
to the alleged wrongful acts. (Rule 25.06(9)).
This is not a deficiency which, in my view,
may be cured by particulars. This pleading is
now 15 months old and I would anticipate that
the alleged losses suffered by the plaintiffs
as a result of the alleged wrongful acts are
now identifiable. There are other deficiencies
in the statement of claim which I need not
particularize. The statement bf1clairri
requires amendment before this action proceeds
further. The plaintiffs are given leave to
amend their statement of claim 'within 60
days. I [18] The motion by the defendant to
strike the plaintiffs' claim and dismiss their
action is dismissed with cost. If the parties
are unable to agree as to costs the court is
prepared to fix them on a party/party scale
upon receiving the written submissions of
counsel within 30 days.
January 10, 2001
=============================================Von: petar <petar@...>
Datum: 2001/03/01 Thu AM 04:38:52 CET
An: (Recipient list suppressed)
Betreff: Press Conference, March 5th, 2001,
Ottawa, Canada
The Ottawa Serbian Heritage Society
3662 Albion Rd. South, Gloucester, Ontario,
K1T 1A3, serbian.heritage@...
PRESS CONFERENCE
Time: Monday, March 5, 2001, at 11:00 a.m.
Place: Charles Lynch Room, 130 C Centre
Block, Parliament Building,
Wellington Str., Ottawa
Press Release
A Question of Principle: Citizens Group to
Agree to Government Appeal in Bombing Lawsuit
OTTAWA, ONTARIO -- The Serbian Heritage
Society of Ottawa is one of the initiators of
the lawsuit against the Canadian government
regarding the bombing of Yugoslavia in 1999.
Among other demands, this suit seeks to stop
the Canadian government from any further
participation in NATO military actions pending
the determination of the legality of such
actions by the Canadian justice system. Many
of our members were born outside of Canada and
chose to come this country—to work,
live, and raise our children as
Canadians—because we believed in the
noble principles that are not only the
foundation of its constitutional system but
that also represent the core beliefs of its
people and the basis for its culture. These
principles, which include fundamental
convictions about the rule of law, fairness,
tolerance, and the peaceful resolution of
conflict, are the reason why Canada and
Canadians command so much respect throughout
the world. It is, of course, the civic duty of
every Canadian citizen to uphold and guard
these principles. However, for those of us who
understand from personal experience how
difficult they are to establish and how
difficult they are to sustain in today’s
conflict-ridden world, there is a particular
urgency to defend them when they are
threatened. Furthermore, when this threat
comes from very powerful individuals who are
at the very head of our government, this need
is even more compelling. The government is not
above the law. In the course of 78 days,
Canadian planes and Canadian pilots were
ordered to bomb an innocent and helpless
civilian population, to destroy their homes
and property, to poison their environment. The
result is compounded human misery, a
dangerously polluted habitat, expansion of
terrorist activity, and a destabilization of
the entire region. This act of war was
undertaken against a country that was at peace
with its neighbours and that was not
threatening either Canada or any of its
allies. It was done without a mandate from the
United Nations, the Parliament of Canada, or
the Canadian people. There cannot be any
clearer examples of wanton and irresponsible
exercise of power by an arrogant elite who
clearly consider themselves outside the law.
No one should be allowed to get away with
that; it is a threat to our fundamental
democratic rights and civil liberties.
Therefore, the principal issue of this suit is
not about money or personal gain of any kind.
Members of the Society have committed to
donate the bulk of any momentary compensation
that they might receive to charity. It is also
not about politics – our ethnic origin
is immaterial here. It is about principle and
about responsibility: the government is not
above the law. Conseqeuntly, our objective is
to have this crucial issue addressed at the
highest judicial level possible and as soon as
possible. We approach this litigation in good
faith and have instructed our lawyer, Dr.
Emilio Binavince, to agree to the
Government’s appeal for escalating the
case to a higher court. Our objective is
simple but fundamental: the people must
control the actions of the high and the
mighty, the Government is not and must not be
above the law.
This press release is issued by the Serbian
Heritage Society of Ottawa. The society and
its members can be contacted via e-mail at:
serbian.heritage@...
=============================================
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