Enforcement immunity

Domestic law

Describe domestic law governing the scope of enforcement immunity.

In general, the property of a foreign state in Canada is immune from attachment and execution and, in the case of an in rem action, from arrest, detention, seizure and forfeiture, save in the following circumstances set out in section 12 of the SIA:

  • the state has waived its immunity from attachment, execution, arrest, detention, seizure or forfeiture, unless the state has withdrawn its waiver according to any applicable terms of such withdrawal;
  • the property is used or intended to be used for a commercial activity, or is used or intended to be used by a listed state to support or engage in terrorism;
  • the execution relates to a judgment establishing rights in property that has been acquired by succession or gift or in immovable property located in Canada; or
  • the state is a listed state and the attachment or execution relates to a judgment rendered in an action brought against it for its support of terrorism or its own terrorists activity and to property other than property that has cultural or historical value.

Conversely, the property of an agency of a foreign state is not immune from attachment and execution. It is not immune either, in the case of an in rem action, from arrest, detention, seizure and forfeiture, for the purpose of satisfying a judgment of a court in any proceedings in respect of which the agency is not immune from the jurisdiction of the court. The sole exception to this is where the property in question is used or is intended to be used in connection with a military activity of the foreign state, and is military in nature or under the control of a military authority or defence agency.

Application of civil procedure codes

When enforcing against a state, would debt collection statutes and the enforcement sections of civil procedure codes or similar codes also apply?

Yes, to the extent execution immunity is not applicable.

Consent for further enforcement proceedings

Does a prior submission to the jurisdiction of a court or tribunal constitute consent for any further enforcement proceedings against the property of the state?

No, the SIA makes a distinction between jurisdictional immunity and execution immunity. See question 16 for situations constituting exceptions to execution immunity.

Property or assets subject to enforcement or execution

Describe the property or assets that would typically be subject to enforcement or execution.

Property that would typically be subject to execution would be property used or intended to be used for commercial activity, as the term is defined in the SIA.

Assets covered by enforcement immunity

Describe the assets that would normally be covered by enforcement immunity and give examples of any restrictive or broader interpretations adopted by the courts.

Under the Foreign Missions and International Organizations Act, SC 1991, C 41 (FMIOA), which implements various provisions of the Vienna Convention on Diplomatic Relations, foreign embassies and consulates, as well as their furnishings and other property on the premises, and the means of transport of the embassy or consulate, are immune from search, requisition, attachment or execution. This immunity extends to the private residences of foreign diplomats.

The Canadian Minister of Foreign Affairs may issue a certificate under section 11 of the FMIOA confirming which property in Canada enjoys diplomatic immunity.

Explain whether the property or bank accounts of a central bank or other monetary authority would be covered by enforcement immunity even when such property is in use or is intended for use for commercial purposes.

Foreign central banks and monetary authorities enjoy immunity from attachment and execution in respect of property held for the bank’s own account that is not used or intended for a commercial activity. Immunity does not apply, however, where the bank, authority or its parent foreign government has explicitly waived the immunity, unless such waiver has been withdrawn in accordance with any applicable term relating to the withdrawal of the waiver.

Test for enforcement

Explain whether domestic jurisprudence has developed any further test that must be satisfied before enforcement against a state is permitted.

There is no further test to be satisfied for the enforcement phase since the requirement of a real and substantial connection would have already been satisfied and the state property in question would need to fall within one of the exceptions set out in the SIA, such as the commercial activity exception.

Service of arbitration award or judgment

How is a state served with process or otherwise notified before an arbitration award or judgment against it (or its organs and instrumentalities) may be enforced?

Section 10 of the SIA provides that where a judgment has been issued by default (whether it is a judgment on the merits, or a judgment recognising an award or foreign judgment), a certified copy of the judgment must be served before any enforcement step is taken. The state has 60 days to apply to have the default judgment set aside or revoked. Where the state appeared in the proceedings (whether it is a proceeding to determine liability or to recognise an award or foreign judgment) and lost on the merits, and the creditor wants to proceed with enforcement, the rules of service or notification are determined under the applicable legislation or rules of court governing the proceedings.

History of enforcement proceedings

Is there a history of enforcement proceedings against states in your jurisdiction? What part of these proceedings is based on arbitral awards?

Yes, there is a history of enforcement proceedings against states, state organs and state agencies in Canada. A significant number of these proceedings are for the recognition and enforcement of arbitral awards.

Public databases

Are there any public databases through which assets held by states may be identified?

There are no databases specifically dedicated to identifying state assets in Canada. However, there are general databases such as land registries, registries for personal property liens and corporate registries.

Court competency

Would a court in your state be competent to assist with or otherwise intervene to help identify assets held by states in the territory?

Canadian courts are governed by an adversarial judicial process. Courts do not proactively provide assistance to litigants or otherwise intervene to help identify assets of defendants. Plaintiffs must do this on their own and seek court assistance for the enforcement of judgments in instances where defendants do not voluntarily pay. To that end, courts can provide those forms of assistance contemplated in the given court’s rules of procedure or applicable law on remedies available to creditors. While courts may compel disclosure, such as through Norwich Pharmacal orders, immunity may still be engaged, however. For example, certain provisions of the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations have been implemented in Canada through the FMIOA and may be relevant.

Section 12.1 of the SIA provides, however, in respect of proceedings in which the exception to immunity based on a listed state’s support of terrorism applies, that the Minister of Finance or the Minister of Foreign Affairs, upon request, may assist a judgment creditor in identifying and locating assets of the foreign state that are held within Canadian jurisdiction (in the case of the Minister of Finance) and property of the foreign state that is situated in Canada (in the case of the Minister of Foreign Affairs). The Minister of Foreign Affairs is entitled to refuse to assist any request where it is believed that to assist the request would be injurious to Canada’s international relations, and either Minister may refuse to assist if it is believed that to assist the request would be injurious to Canada’s other interests.