On 23 December 1999, the Ontario Court of Appeal overturned a ruling by Lederman J. that the United States of America had waived its sovereign immunity in its prosecution of mining promoter Robert Friedland. The decision put an end to Friedman’s counterclaim against three lawyers with the US Environmental Protection Agency and the US Department of Justice for a host of tort claims including wrongfully obtaining a Mareva injunction freezing Friedland’s assets.
Robert P. Armstrong, Q.C., of Torys, and Malcolm N. A. Ruby of Gowling, Strathy & Henderson acted for the U.S.A., and Howard Shapray, Q.C., and Brad Cramer of Shapray, Cramer and Associates and Risa M. Kirschblum of Lenczner Slaght Royce Smith Griffin represented Mr. Friedman on the appeal. In upholding the appeal, the Court of Appeal found (with one exception) that the US had not waived its sovereign immunity and therefore was not liable to be sued by Friedland. Immunity had only been waived, the Court held, in respect of any provable claim arising from the undertaking as to damages given when the Mareva was obtained. Friedland’s counterclaim was therefore dismissed. David W. Scott and Michael D. Crinson of Borden Elliot Scott & Aylen were counsel for the three US government lawyers on the counterclaim.