The judgment of La Forest, L'Heureux-Dubé and Gonthier JJ. was delivered by
The reasons of Sopinka and Cory JJ. were delivered by
whether it had erred in holding that the United States could not claim state immunity with respect to the application for certification;
if not, whether it had erred in holding that the matter falls within the federal constitutional jurisdiction; and
If not, whether it had erred in holding that the matter falls within its own jurisdiction.
The certification proceedings have been stayed pending the determination of this reference. The Federal Court of Appeal held that the Board decided the first issue correctly but it did not address the second and third questions. It is the Court of Appeal's decision on the first question which is the subject of this appeal.
Applicable Legislation
Federal Court Act
28. . . .
2. . . .
"commercial activity" means any particular transaction, act or conduct or any regular course of conduct that by reason of its nature is of a commercial character;
3. (1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada. . . .
(1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada. . . .
(1) A foreign state is not immune from the jurisdiction of a court if the state waives the immunity conferred by subsection 3(1) by submitting to the jurisdiction of the court in accordance with subsection (2) or (4).
(2) In any proceedings before a court, a foreign state submits to the jurisdiction of the court where it
(a) explicitly submits to the jurisdiction of the court by written agreement or otherwise either before or after the proceedings commence;
. . .
A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.