By Haggai Carmon

A Montreal lawyer and a Notary sued their landlord and the State of Israel in the Quebec Superior Court in Montreal in a case involving sovereign immunity. Plaintiffs are tenants in an office tower in Westmount on the same floor occupied also by the Israeli Consulate General. The plaintiffs sued when security measures taken by the Israeli Consulate to protect its offices, failed to include security enhancements demanded by the plaintiffs. On November 26, 2008, Justice Guy Cournoyer granted Israel’s Motion to Dismiss the lawsuit due to Israel’s sovereign immunity. Plaintiffs said they would appeal. Teitelbaum v. The State of Israel, [2008] J.Q. no 12129.

The plaintiffs sought damages for endangering their security and an order to compel the defendants to protect them, their staff and the visiting public against the alleged increased risks created by the presence of the Israeli Consulate on their office floor.

The territorial torts exception included in the Canadian State Immunity Act (SIA) excludes immunity to foreign states from the jurisdiction of Canadian courts, in cases of “death or bodily injury, or any damage to, or loss of, property that occurs in Canada.” Therefore, the Court denied their complaint and said that the SIA does not establish a cause of action for potential deprivation of life or security of the person.

Another exception to SIA to sovereign immunity relates to  The landlord attempted to use the commercial exception [“any proceedings that relate to any commercial activity of the foreign state.”] to deny Israel’s claim of immunity. The Court disagreed. Citing the Ontario Court of Appeal in Bouzari v. Islamic Republic of Iran, (2004), 243 D.L.R. (4th) 406, Justice Cournoyer indicated that although a lease agreement with the State of Israel and the Consulate General of Israel is patently commercial, the consulate’s installation of security measures constitute an integral part of the operation of the consulate and therefore, Israel is protected by sovereign immunity.

More than a decade ago, a Magistrate Court in Bat-Yam, Israel decided that a house rental agreement for use as the Canadian ambassador’s residence is necessary for the performance of the activities of the foreign sovereign. The Magistrate Court [M. Tarento, Judge] said that the rental agreement was not a for- profit enterprise or a commercial activity usually excluded from the protection of sovereign immunity, and therefore was immune. The Court dismissed the complaint against Canada. That decision was overturned on appeal by the Tel Aviv District Court, and the Israeli Supreme Court denied an appeal on the District Court’s decision on appeal.