By Tom Blackwell

TORONTO -- In what's being hailed as a precedent-setting ruling, a group of mostly expatriate Serbs has won the right to sue the Canadian government over the NATO bombing of their homeland.

A Superior Court of Ontario judge rejected this week a request by federal lawyers to toss out the case before it gets to trial.

It marks the first time a Canadian court has given the go-ahead to a suit that deals with Canada's actions in a foreign land, Emilio Binavince, lawyer for the Serb nationals and Serb-Canadians, said yesterday.

A similar lawsuit by relatives of Somalian teenager beaten to death by Canadian soldiers was not permitted to proceed, he noted.

"This is a great victory," Mr. Binavince said.

"For the first time, a wrong committed by the Cnadian government outside the country is the subject of a suit [that is proceeding to trial]."

The claim was launched by 50 Canadian residents of Serbian origin and seven Serb residents over the NATO bombing campaign against the country in the spring of 1999.

Eighteen Canadian P-18 Hornet jet flghters took part in the air strikes, accouting for about 10% of the 6,700 sorties flown by war planes of the North Atlantic Treaty Organization.

The attacks were designed to pressure Slobodan Milosevic, then president of Serbia to end attacks on ethnic Albanians in the province of Kosovo.

Mr. Milosevic was later indicted as a war criminal by an international tribunal, then overthrown in a bloodless uprising last year.

The suit alleges that Canada violated both international law and the Charter of Rights and Freedoms by taking part in the campaign.

It demands $75 million in compensation for deaths, injuries and property damage suffered by the plaintiffs and their relatives in Serbia.

Among other things, Ottawa had claimed that individuals could not sue Canada over its obligations under international law, only other countries can do so.

Justice Gordon Sedgwick of the Superior Court disagreed.

"They are not seeking to enforce an international obligation of Canada," Judge Sedgwick said in his judgement.

"They are asking this court to determine whether the allegedly 'illegal' actions of Canadian ministers and military officials in participating in the NATO bombardments of Yugoslavia may be characterized as wrongful acts [for the purposes of a suit in the courts here]. I am not persuaded that they are prohibited by law from doing so."

Judge Sedgwick also rejected federal arguments that Canadian courts cannot rule on issues involving Ottawa's "royal prerogative" to participate in foreign affairs and international military actions.

Ed Sojonky, the senior Department of Justice lawyer representing Canada in the case, said the government will decide within a couple of weeks whether to appeal but in the meantime he would not comment on the ruling.

"Our position has always been that there is no merit to the claim," he said.

Judge Sedgwick gave the plaintiffs 60 days to update their statement of claim to spell out how each of them was directly affected by the bombing.