Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction over the Haitian government defendants was contested, requiring the court to determine whether the State Immunity Act's commercial activity exception applied.
• Unpaid professional fees formed the core contractual dispute between the plaintiff and defendants Sajous and Dietrich.
• Copyright infringement and plagiarism were alleged against the Haitian government after a tourism development document bearing similarities to the plaintiff's work was published online.
• The plaintiff's expert report on documentary similarities failed to persuade the court that substantial reproduction had occurred.
• Moral damages were claimed against multiple defendants, but only defendant Sajous was found liable due to his fault in ignoring the plaintiff and failing to pay.
• Exemplary damages and extrajudicial fees were sought but denied for lack of the requisite intentional fault or exceptional procedural circumstances.

Facts of the case

Olthène Tanisma, an urban planner residing and working in Montreal since 1977, brought a damages action before the Superior Court of Quebec against the Direction générale des impôts (DGI) and the Ministère de la Planification et de la Coopération Externe (MPCE) of the Government of the Republic of Haiti, as well as against Fernand A. Sajous and Robert Dietrich. The plaintiff claimed in excess of $2.2 million, comprising $1.8 million in material damages, $150,000 in moral damages, $150,000 in exemplary damages, $50,000 in extrajudicial fees, and $104,100 in unpaid professional fees.

The dispute arose from work the plaintiff performed between 2008 and 2011 in connection with a sustainable tourism development project on Île-à-Vache, Haiti. In early 2008, defendant Sajous — a longtime family acquaintance of the plaintiff who had commercial interests on the island — contacted Tanisma to help develop his tourist complex, which at the time had 29 rooms. In March 2008, the plaintiff traveled to Île-à-Vache for 14 days, accompanied by his partner. An agreement was reached in 2008 under which the plaintiff would prepare a development plan for a budget not exceeding $120,000. The plaintiff subsequently produced four documents: ABAKA BAY Phase II, un projet touristique durable sur l'Île-à-vache; ABAKA BAY : un attrayant projet de développement touristique durable sur l'Île-à-vache / An attractive, cozy and sustainable tourist resort on Île-à-Vache; Les Villas de l'Anse Dufour; and an Abaka Bay marketing plan. These documents were transmitted by email to defendants Sajous and Dietrich.

In 2010 and 2011, the plaintiff received a total of $8,900 from defendants Sajous and Dietrich through several Western Union money orders, which he characterized as partial payment of his professional fees. The documents were used in 2011 to support a financing application to the Inter-American Development Bank (BID), which was ultimately unsuccessful. That same year, a tourism development plan for Île-à-Vache — including an airport and a golf course — received approval from the Haitian government. In February 2013, the plaintiff discovered online a document titled Île à Vache – proposition préliminaire de développement touristique, bearing the heading of the Haitian government and its coat of arms. He alleged this document substantially reproduced his own work.

Legislative and contractual framework

The jurisdictional question turned on the State Immunity Act (R.S.C. 1985, c. S-18), which provides that foreign states enjoy immunity from proceedings before Canadian courts, subject to exceptions. The relevant exception, set out in section 5 of the Act, provides that a foreign state does not benefit from immunity in proceedings relating to its commercial activities. The Act defines "commercial activity" as any regular course of dealing or isolated transaction that is commercial in nature. The court applied the "contextual method," examining the object and nature of the acts underlying the claim, as directed by the Supreme Court of Canada in Kuwait Airways Corp. v. Iraq, 2010 SCC 40.

On the professional fees claim, the agreement between the plaintiff and defendants Sajous and Dietrich established fees of up to $120,000. The plaintiff ultimately valued his services at $113,000 and acknowledged receipt of $8,900, yielding the net claim of $104,100. For the copyright analysis, the court relied on the standard from CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, which holds that an original work — one requiring the exercise of talent and judgment — is protected, and that the relevant test for infringement is "substantial reproduction."

Court's reasoning and analysis

On jurisdiction, the court held that the Superior Court of Quebec had jurisdiction over the DGI and MPCE. The plaintiff's work in elaborating a tourism development plan constituted a commercial activity aimed at increasing revenue and did not touch on Haiti's sovereign functions. Rather, it related to the business dealings of a family of entrepreneurs with ties to the government. The court noted that the MPCE had filed a Requête contesting jurisdiction shortly after its appearance in the record, suggesting that its appearance was intended to challenge jurisdiction rather than to submit to it, and that this did not affect the court's analysis under the State Immunity Act. The court also flagged that territorial jurisdiction may have been questionable given the tenuous link between the facts and Quebec, but declined to consider this as the issue was not raised by the parties.

On professional fees, the court found the claim well founded. The plaintiff's uncontradicted testimony established the 2008 agreement. A letter from defendant Sajous to a credit officer of the Inter-American Investment Corporation in October 2010 referenced documents being prepared by "Planamec International" — the plaintiff's company — which corroborated the plaintiff's account. At trial, defendant Dietrich conceded that the plaintiff had produced documents and had not been paid, and added that the plaintiff was a "wonderful man and a wonderful person." The partial payments of $8,900 further supported the existence of the fee agreement. The court found that DGI and MPCE were not implicated in the 2008 agreement and thus bore no liability for the professional fees.

On plagiarism, the court declined to find in the plaintiff's favor. While it acknowledged that the plaintiff's two main documents — ABAKA BAY Phase II and ABAKA BAY : un attrayant projet de développement touristique durable — qualified as original works protected by copyright, the comparative analysis did not support a finding of substantial reproduction. Similarities such as emphasis on the island's beaches, references to the need for an airport, and the use of a photo of Sir Henry Morgan were deemed natural features of any document addressing Île-à-Vache, and copyright protects the expression of ideas, not the ideas themselves. The plaintiff's expert report on similarities was found unpersuasive, and the argument that differences between the documents were evidence of a plagiarist's attempt to conceal infringement was rejected as absurd.

On moral damages, the court found only defendant Sajous liable. His failure to pay the fees owed and his deliberate disregard of the plaintiff's communications — after years of collaboration — constituted a fault. The plaintiff's testimony about the resulting stress and emotional distress was uncontested. The court awarded $5,000 in moral damages against Sajous. Exemplary damages were denied across the board, as the intentional fault required to support such an award was not established against any defendant. The claim for extrajudicial fees of $50,000 was also dismissed, as no abuse of procedure or vexatious conduct was found.

Ruling and overall outcome

The Superior Court of Quebec, per Justice Geeta Narang, rendered judgment on May 27, 2026. The plaintiff, Olthène Tanisma, was the partially successful party. The court ordered defendants Fernand A. Sajous and Robert Dietrich, jointly, to pay $104,100 in professional fees, with legal interest and the additional indemnity under article 1619 of the Civil Code of Quebec, from July 21, 2012 — the date of the first formal demand. The court further ordered defendant Sajous alone to pay $5,000 in moral damages, with legal interest and the same additional indemnity, from April 11, 2014 — the date of the second formal demand. All other claims, including the $1.8 million in material damages, $150,000 in moral damages, $150,000 in exemplary damages, and $50,000 in extrajudicial fees, were dismissed. No costs were awarded, given the mixed outcome of the plaintiff's action.