2010 QCCA 2256, 2010 QCCA 2256

Unofficial English Translation Maroc (Gouvernement du Royaume du) c. El Ansari 2010 QCCA 2256 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-018094-078 (500-05-063377-012) DATE: December 9, 2010 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. JACQUES A. LÉGER , J.A. GOVERNMENT OF THE KINGDOM OF MOROCCO APPELLANT - INCIDENTAL RESPONDENT- Defendant v.

RHITA EL ANSARI RESPONDENT - INCIDENTAL APPELLANT - Plaintiff and MOHAMED BENAISSA, Minister of Foreign Affairs and Cooperation and FATHALLAH OUALALOU, Minister of Finance and Privatization IMPLEADED PARTY - Impleaded party JUDGMENT [ 1 ] THE COURT: On the main appeal and incidental appeal from a judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Carol Cohen), rendered on September 17, 2007, which allowed in part the respondent’s claim following her dismissal by her former employer, the Government of the Kingdom of Morocco. [ 2 ] For the reasons of Léger J.A., with which Pelletier and Hilton JJ.A. agree: [ 3 ] ALLOWS the main appeal; [ 4 ] SETS ASIDE the trial judgment; [ 5 ] DISMISSES the respondent’s motion to institute proceedings; [ 6 ] DISMISSES the incidental appeal, which has become moot; [ 7 ] THE WHOLE WITHOUT COSTS , both at trial and in appeal. ____________________________ FRANÇOIS PELLETIER, J.A. ____________________________ ALLAN R.

HILTON, J.A. ____________________________ JACQUES A. LÉGER, J.A. Mtre Gabrielle Azran Azran & Assoc. Mtre Gabrielle Perrault

For the appellant Mtre Henri Kélada For the respondent and Ms. Ritha El Ansari Respondent Date of hearing: January 19, 2010 REASONS OF LÉGER, J.A. [ 8 ] Both the main appellant, the Government of the Kingdom of Morocco, and the respondent, Rhita El Ansari, appeal from a judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Carol Cohen), rendered on September 17, 2007, which allowed in part Ms. El Ansari’s claim for damages for unjust dismissal by her employer, the Government of Morocco. [ 9 ] The Government of Morocco argues that the trial judge erred by condemning it to pay Ms.

El Ansari $70,200 plus interest and additional indemnity and by dismissing its counterclaim. In his view, the trial judge erred in law by refusing to recognize its sovereign immunity as a foreign government, since at all relevant times during the respondent’s posting, she worked as a civil servant pursuant to the Moroccan Statut général de la Fonction publique [ translation : General Civil Service Act]. [1] [ 10 ] The main appellant also argues that, in the circumstances, the employment contract with Ms. El Ansari should not have been characterized as commercial within the meaning of the exception in

section 5 of the State Immunity Act . Rather,

section 3 should apply [2] and therefore, as a foreign state, it “is immune from the jurisdiction of any court in Canada”. [ 11 ] Ms. El Ansari, for her part, maintains that she was unjustly dismissed and removed from Moroccan civil service after she refused to return to Morocco for a new posting. She also argues that the Government of Morocco could not recall her to a posting in Morocco and then dismiss her without having first provided her with the financial means to follow through with the recall. [ 12 ] In her incidental appeal, she contests the sufficiency of the amounts awarded by the trial judge.

I- BACKGROUND [ 13 ] The essential question asked in this appeal is whether the sovereign immunity claimed by the Government of Morocco applies to its employment relationship with Ms. El Ansari. It is incumbent upon Ms. El Ansari to establish whether she may, under the Canadian regime, raise an exception to the immunity enjoyed by a foreign State. A determination of whether the commercial activity exception applies requires a consideration of the nature of the alleged actions in their overall context. The conclusion must have factual content, since the exception in

section 5 of the Act referred to above contemplates only the commercial activities of a foreign state. [ 14 ] In other words, for a proper understanding of the analysis required, we must first review the stages of Ms. El Ansari’s career and her professional relationship with her employer through the years. We should also consider the general content of their correspondence in the two years prior to her dismissal. [3] [ 15 ] Born in Morocco in 1942, Ms. El Ansari joined the Moroccan civil service at the Department of National Education in 1959.

In 1961, she began working at the Department of Foreign Affairs, which led her to travel to various countries. In 1968, she was made a permanent civil servant, retroactive to 1967. Her title was Implementation Officer.

Her postings between 1961 and 1991 were the following: • 1961-1962: Secretary at the Moroccan embassy in Dakar, Senegal; • 1962-1967: Secretary at the Moroccan embassy in Belgrade, Yugoslavia; • 1967-1969: Private secretary for the Foreign Affairs Cabinet at government head offices in Rabat, Morocco; • 1969-1972: Registry officer at the Moroccan embassy in Madrid, Spain; • 1972-1975: Secretary at the Moroccan embassy in Paris, France; • 1975-1979: Executive private secretary to the Cabinet of the Department of Foreign Affairs in Rabat, Morocco. • 1979-1985: Secretary to the Moroccan permanent mission to the United Nations in New York, United States of America; • 1985-1987: Spouse of consul (no remuneration) at the Moroccan consulate in Bastia, Corsica;

• 1987-1991: Spouse of consul (no remuneration) at the Moroccan consulate in Dijon, France; [ 16 ] In the late 1980s or early 1990s, after leaving her first husband, a career diplomat with whom she had been living abroad, Ms. El Ansari approached the Minister of Foreign Affairs in Morocco to request a new posting, but nothing was available at the time. During the same period, she began the process to immigrate to Canada. On May 30, 1991, she obtained a Canadian immigrant visa thanks to the sponsorship of one of her sons, who was already a Canadian citizen. [ 17 ] When Ms.

El Ansari arrived in Canada on December 17, 1991, she had no posting with the Moroccan government. In July of 1993, she received a telephone call from the Moroccan consulate in Montreal informing her that a posting was available there but that she would have to return to Rabat at her own expense to finalize the hiring formalities. She agreed to do so. Once the formalities were carried out, the Moroccan government paid for her airplane ticket back to Montreal. It also provided her with a lump sum for change of residence [ indemnité forfaitaire pour changement de residence , hereinafter “IFCR”].

It was only then that she began working at the Moroccan consulate in Montreal. [4] [ 18 ] In 1996, she received her Canadian citizenship and married her third husband, Guessous Abdelhak. Shortly thereafter, in 1997, she was transferred to the Moroccan embassy in Ottawa. [5] She moved there without having first received any payment for her travel expenses or her IFCR.

She lived in an apartment in Ottawa with her new husband until late August 2000, when her duties at the embassy came to an end. [ 19 ] On April 6, 1999, the Government of Morocco asked her to return to Rabat for reassignment by the National Department of Foreign Affairs. From that moment on, she began exchanging voluminous correspondence with the relevant departments in an effort to defer her recall. Her arguments included her husband’s fragile health, her precarious financial situation, and the fact that her youngest son was still studying, completing his final year as an intern. [ 20 ] On June 24, 1999, Ms.

El Ansari received a letter informing her that her request for an extension had been granted for one year. She could therefore stay in Ottawa for an extra year. The letter specified, however, that [ translation ] “the person concerned must take all steps to return to the National Department on August 1, 2000 ”. [ 21 ] On February 15, 2000, she wrote to request a permanent transfer to Montreal.

Her arguments were her husband’s heart condition and her own situation as [ translation ] “head of household”. [ 22 ] The next day, she left for Morocco, where she stayed until April 15 to attend to her application for an administrative reclassification and to obtain a kafala from the competent authority. The kafala would attest that her husband was now at her expense. This would be useful if she were transferred to Montreal, as it would permit her to obtain special allowances. [ 23 ] On March 27, 2000, Ms.

El Ansari obtained a judgment from the city of Fez confirming the obtaining of the kafala . [ 24 ] On March 31, 2000, the Government of Morocco wrote to its ambassador in Ottawa to inform him that Ms. El Ansari was being recalled to Morocco on June 30 and that she would be granted a 30-day holiday as of July 1, 2000. It was only once she returned to Ottawa after April 15, however, that she learned of her impending recall.

She responded by repeating her request for a permanent transfer to Montreal with greater insistence. [ 25 ] Shortly thereafter, on June 6, she signed a one-year lease in Montreal, beginning on the following September 1.

When asked about her reasons for signing the lease even before hearing the response to her transfer request, she explained that her husband would have to stay in Canada in any event to benefit from the free health care, which he could not get in Morocco. [ 26 ] On June 26, she withdrew her request for a transfer to Montreal, stating that the ambassador had confirmed to her [ translation ] “in person, that the Department was maintaining its position to recall me to the National Department as of August 1, 2000”. This letter is important because it contains Ms.

El Ansari’s agreement to her recall to Morocco, subject to a number of payments, including airplane tickets for the years 1995 and 1999, the cost of the IFCR for her transfer from Montreal to Ottawa in 1997, and the reimbursement of her rent for the month of August. [ 27 ] On June 29, reiterating her demand for an [ translation ] “urgent” response to her requests, she also stated that she would continue to perform her duties at the Ottawa embassy until August 31, 2000, after which she would take her vacation in September and October. [ 28 ] On June 30, in response to Mr.

Zniber’s request for certification that her husband was not employed, Ms. El Ansari told him that, although she was initially going to take up her posting in Morocco on June 30, the problems referred to in her letter of June 26 [ translation ] “prevent her from acting”. [ 29 ] On July 1, she confirmed to Mr. Zniber that her husband was not working. She also criticized him for this requirement and reminded him that she was still waiting for the answer to her claim of June 26.

On July 5, she received a letter from the National Office in Morocco repeating the decision to recall her and informing her that her travel costs for 1995 were being processed but that there was no budget to reimburse her for her claim for 1997. [ 30 ] In July and August 2000, she continued her remunerated work at the Moroccan embassy in Ottawa. [6] On August 10, Ms. Ansari was invited to take

part in a competitive examination to enter the Canadian civil service, for which she had previously applied. She appeared in order to take the exam on September 11.

This request, when considered together with her signing of a lease in June for an apartment in Montreal and certain statements in her correspondence with her employer, raises a serious doubt as to her true intention to comply with the order from the National Office in Rabat calling her back. [ 31 ] On August 18, she demanded payment of her salary for the month of August, again reiterating that she was still awaiting the decision regarding her transfer to Montreal. She added that, if she was refused, it would be imperative that she receive the funds so that she could [ translation ] “hire a moving company”.

She ended her letter as follows: [ translation ] “I will be back in Morocco as of next

November”. [ 32 ] On August 22, she reiterated her request to be transferred to Montreal or, if not, to obtain the reimbursements she had requested. [7] On August 25, Ms. El Ansari received a formal notice stating that she had abandoned her post, retroactively to August 1, and ordering her to return to her post within the next seven days [8] at risk of facing removal. The evidence is not clear, however, as to when her removal became official in the eyes of the Moroccan administration. [ 33 ] The next day, she answered that she had not abandoned her post because she was still working at the embassy in Ottawa.

She again demanded that her expenses be reimbursed. [ 34 ] On September 29, she threatened to take legal action if she was deprived of the financial resources to which she was entitled [ translation ] “as is any other civil servant recalled to the National Department”. On October 2, the Government of Morocco authorized the payment of $9,735.61 for the IFCR, which she received on October 19. She did not know, however, whether this was her IFCR for 1997 or whether it was the flat rate for her relocation to Morocco. [ 35 ] On November 6, 2000, Ms. El Ansari began courses at a CEGEP.

On November 18, a friend sent her an email informing her that her removal had taken effect on August 1. Notice of her removal was on the website of the Caisse marocaine de retraite (Moroccan pension fund), dated November 14, 2000. In October, colleagues had informed her that she had been removed, but she had been unable to determine whether it had taken place before or after she received the IFCR cheque referred to above. [ 36 ] In the meantime, she had begun proceedings in Morocco on April 12, 2000, concerning her remuneration and her salary scale.

The final judgment dismissing her action was rendered on April 26, 2004. [ 37 ] She also brought other actions in Morocco seeking to cancel her removal as a civil servant. Apparently, her motion was eventually dismissed because she failed to retain counsel. This is confirmed by the Moroccan statute filed in evidence. [9] The case was therefore never heard on its merits. [ 38 ] Finally, on February 26, 2001, Ms. El Ansari filed her motion to institute proceedings before the Superior Court, District of Montreal.

II - RELEVANT STATUTORY PROVISIONS [ 39 ] Certain statutory and regulatory provisions in force at the time of the alleged facts are reproduced below: · Civil Code of Québec

Article 3118 The designation by the parties of the law applicable to a contract of employment does not result in depriving the worker of the protection to which he is entitled under the mandatory provisions of the law of the country where the worker habitually carries on his work, even if he is on temporary assignment in another country or, if the worker does not habitually carry on his work in any one country, the mandatory provisions of the law of the country where his employer has his domicile or establishment.

If no law is designated by the parties, the law of the country where the worker habitually carries on his work or the law of the country where his employer has his domicile or establishment is, in the same circumstances, applicable to the contract of employment. · State Immunity Act [10] Section 2 (1) In this Act, “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. ... Section 3 (1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.

(2) In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subsection (1) notwithstanding that the state has failed to take any step in the proceedings.

Article 5

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. · Moroccan legislation [ translation ] o Royal Decree No. 1182-66 of 27 Qa’dah 1386 (9 March 1967) conferring special status on diplomats and consular officials

Section 18 Diplomats and consular officials, as well as seconded officials from the Department of Foreign Affairs, shall practise at the National Office for at least two years before being assigned to a foreign post. Continuous service in the same foreign post shall be no less than two years and no greater than four years. Under no circumstances may posts in Zone C, in difficult or unhealthy climates, be greater than two years, pursuant to the regulations that shall be in force to such effect. The total of the number of consecutive years of service abroad shall not, however, be greater than six years.

Section 20 Any assignment abroad, transfer, or recall to the national office must take into account the family situation of the persons concerned, as well as their rights to holidays and travel requests. o Decree No. 2-62-345 of 15 Safr 1383 (8 July 1963) conferring special status on National Office managers and civil service joint staff

Section 1 The staff of the National Office is constituted by the following managers: 1) Officers in charge 2) Implementation officers ...

Section 3 Officers in charge, implementation officers, and secretaries, whether on duty at the National Office or in external departments, are subject to the appropriate Minister for all individual management measures. ... o Dahir No. 1-58-008 of 4 Sha’ban 1377 (24 February, 1958) conferring general status on the civil service

Section 2 Any person appointed to permanent, tenured employment at a level of the administrative State management hierarchy is a civil servant.

Section 3 Civil servants are in a statutory and regulatory situation with regard to the administration.

Section 5 The terms of application of this Dahir shall be specified in decrees conferring special status on the staff of each administration or department as well as managers common to several administrations, as the case may be.

Section 13 Civil servants shall in all circumstances comply with and enforce the authority of the State.

Section 21 A person may not be appointed to civil service (1) if he or she is not a Moroccan citizen ...

Section 24 Any candidate whose recruitment has been authorized by the competent department shall remain entirely at the disposal of the Administration for his or her appointments or assignments. In the event of a refusal to accept an assigned position, after a formal notice, the candidate shall be struck from the list of recruits.

Section 75 bis

Except for cases of duly justified absences, a civil servant who does not provide his or her service is deemed to have abandoned his or her post; in such a case, he or she is deemed to have knowingly waived the disciplinary guarantees provided in this statute. The Chief of Administration shall send a formal notice to the civil servant guilty of abandoning his or her post, inviting the civil servant to return to his or her post and informing him or her of the measures that may be taken in the event of a failure to comply.

The formal notice shall be addressed to the civil servant at the last declared residence of the person concerned by registered letter with acknowledgement of receipt. If he or she does not return to service within seven days following the date of notification of the formal notice, the Chief of Administration is empowered to order directly the removal of the civil servant, with or without suspension of pension entitlements and without prior consultation with the Council on Discipline.

Where the formal notice cannot be served, the Chief of Administration shall make an immediate order that the accused civil servant’s pay be suspended. If the civil servant does not return to his or her post within sixty days of the decision to suspend pay, the sanction set out in paragraph 3, above, shall apply. If the civil servant returns to his or her post within the specified time period, the civil servant’s file shall be submitted to the Council on Discipline.

In the cases contemplated in this provision, removal shall take effect as of the day the abandonment of the post was noted. o Dahir No. 1-91-225 of 22 Rabi I 1414 (10 September 1993) enacting Act No. 41-90 instituting administrative tribunals

Section 3 A matter shall be referred to an administrative tribunal by way of a written motion signed by an attorney entered on the roll of one of the Bars of Morocco. Unless otherwise indicated, the said motion contains the information and statements prescribed in

article 32 of the Code of Civil Procedure. ... III - JUDICIAL HISTORY SUPERIOR COURT (1) [ 40 ] The matter was heard for the first time on April 5, 2002, by Mr. Justice François Bélanger. Ms. El Ansari was not represented, and the Government of Morocco did not appear. The judge invoked the State Immunity Act of his own motion, took the case under advisement, and summarily dismissed the action in a judgment rendered on July 12, 2002. [11] The reasons, which were brief and not detailed, read as follows: [ translation ] 1.

The plaintiff, a landed immigrant in Canada since 1991, claims from the defendant an amount of $228,841.00, including salary and various indemnities flowing either from her employment or from the termination of such on or about July 31, 2000, as an Implementation Officer for the defendant’s diplomatic mission in Ottawa, where she had been posted since 1997. 2. The defendant failed to appear, although the summons seems to have been properly served. 3.

From the record as it stands, it appears that the plaintiff, who is Moroccan in origin, has been a member of her country’s civil service since 1959 and, as she details in paragraph 2 of her statement, has been assigned to diplomatic services in various countries since 1961. 4. She refers to her untimely dismissal in the summer of 2000, at which time her employer, the defendant, stated that the plaintiff had abandoned her post, as appears in the certified translation of an Order of Dismissal to this effect, which is filed in the record. 5.

Whatever the merits of the case, and despite the large amount of documentation provided, the plaintiff has not persuaded the Court that it should accept jurisdiction and thereby contravene the mandatory provisions of the State Immunity Act , R.S.C. c. S-18,

section 3 of which reads as follows: 3.

(1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.

(2) In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subsection (1) notwithstanding that the state has failed to take any step in the proceedings. 6. No exception set out in this statute applies here. FOR THESE REASONS, THE COURT: DISMISSES the plaintiff’s action, without costs; [ 41 ] Ms. El Ansari brought her first appeal against this judgment. COURT OF APPEAL

[42] Ms. El Ansari, still without representation before this Court, filed a factum adding new facts concerning, inter alia, thebackground, nature, and quality of her employment contract with the Government of Morocco, the circumstances of her transfer to theMoroccan embassy in Ottawa, as well as her place of residence and the payment of her taxes.[12] At the hearing in 2003, these facts werenot a matter for adversarial debate because the Government of Morocco was barred from submitting arguments. [43] On October 1, 2003, this Court allowed Ms.

El Ansari’s appeal, overturned the judgment of Bélanger J. cited above, andreturned the file to the Superior Court for a ruling on the merits of the claim. The judgment of the Superior Court reads as follows: [translation] [1] WHEREAS the foreign state does not benefit from immunity of jurisdiction in proceedings that relate to commercial activitieswithin the meaning of

section 5 of the State Immunity Act; [2] WHEREAS a simple employment contract is generally considered a commercial activity (Re Canada Labour Code, (SCC), [1992] 2 S.C.R. 50) except where the functions carried out by the employee contain aspects that undermine the sovereignty ofthe foreign state and the proceedings brought relate thereto; [3] WHEREAS Quebec authorities have jurisdiction to hear an action based on an employment contract when the worker isdomiciled or resides in Quebec; [4] WHEREAS

article 3118 of the Civil Code of Québec governs the law applicable to employment contracts; [5] WHEREAS the appellant in the present case has proved her status as permanent resident in Montreal since 1991, the position ofadministrative assistant which she occupied does not challenge the sovereignty of the foreign state, and her claims may be pecuniary innature; [6] WHEREAS this Court issued a judgment in Government of the Republic of Italy v.

Silvio Orvieto on September 11, 2002, J.E.(2002) 1781; [7] WHEREAS the record submitted to the Court by the appellant is incomplete; [8] FOR THESE REASONS, THE COURT: [9] ALLOWS the appeal with costs for disbursements only; [10] OVERTURNS the judgment under appeal; [11] RETURNS the file to the Superior Court so that it may rule on the merits of the case. [44] Subsequently, the Government of Morocco was denied leave to appeal before the Supreme Court of Canada. JUDGMENT UNDER APPEAL - SUPERIOR COURT (2) [45] On April 12, 2006, the trial judge began a fourteen-day hearing on the merits.

After taking the case under advisement, sherendered her judgment on September 17, 2007. Although she heard Ms. El Ansari’s claim against the Government of Morocco, shedeclined jurisdiction to rule on the employer’s defence of jurisdictional immunity, stating that she was bound by this Court’s judgmentdated October 1, 2003, and by the Supreme Court’s refusal hear the appeal. She added that the facts accepted by the Court of Appealwere supported in the evidence before her and concluded that: • Ms.

El Ansari was recruited locally, in Montreal, although her remuneration includes benefits generally reserved for Moroccancivil servants. • Therefore, she sees no justification to [translation] “question the jurisdiction of the Superior Court of Quebec or to apply a legalsystem other than Quebec law to this case”.[13] [46] As for Ms.

El Ansari’s claim regarding her dismissal, the trial judge affirmed that she had been dismissed [translation] “as ofAugust 1, 2000,”[14] for abandoning her post but pointed out that the allegation concerning that date could not stand because theevidence showed that she was working at the Moroccan embassy in Ottawa at the time. Consequently, her employer could not dismissher without first having provided her with the financial means to follow through on her recall to Morocco.

Therefore, she found that thedismissal was unjust. [47] The judge allowed her claim in part, ordering the Government of Morocco to award her severance pay in the amount of$70,200, calculated on the basis of twenty-seven years of remunerated work at a salary of $2,600 a month. To that amount she addedinterest, the additional indemnity provided in

article 1619 C.C.Q., costs, and expert fees. IV – GROUNDS OF APPEAL [48] I – The numerous grievances of the main appellant can be summarized in two questions:

1. Did the trial judge err by deciding that the defence of jurisdictional immunity, set out in the State Immunity Act , which was raised by the Government of Morocco, was res judicata ? 2. Did the trial judge err by finding that Ms. El Ansari was unjustly dismissed and by ordering the employer to pay her compensation? II - In her incidental appeal, Ms. El Ansari argues that the amounts awarded by the trial judge are insufficient in the circumstances. V – ANALYSIS 1.

Did the trial judge err by deciding that the defence of jurisdictional immunity set out in the State Immunity Act , which was raised by the Government of Morocco, was res judicata ? [ 49 ] The Government of Morocco argues that the trial judge erred by ruling that this Court’s 2003 judgment precluded her from re- hearing the issue of jurisdictional immunity on the merits.

It adds that the judgment must be interpreted in light of prior proceedings: first, the appellant never appeared before Bélanger J. and second, it was the judge himself who raised the inadmissibility of the immunity issue, even before he heard the merits. [ 50 ] Consequently, it adds, when the Court of Appeal overturned Bélanger J.’s judgment and sent the case back to the Superior Court, there was very little evidence in the trial record for the Superior Court aside from the new facts Ms. El Ansari had added in the appeal record.

Therefore, once the file was returned to the Superior Court to be heard on the merits, the trial judge first had to determine whether, based on the evidence before her, her employment contract met the conditions of the commercial activity exception set out in

section 5 of the State Immunity Act . [ 51 ] With respect for the trial judge, the Government of Morocco is right. The judge was wrong to find that she did not have to rule on the merits of the jurisdictional immunity defence.

It is clear from her reasons that she found it neither useful nor necessary to consider the prior issue regarding the determination of the nature of the employment relationship and its corollary, the application of the related commercial activity exception, believing herself to be bound by the 2003 judgment of this Court. [ 52 ] In so doing, the judge erred in law by over-evaluating the scope of that judgment, which was rendered ex parte , did not rule on the merits of the jurisdictional immunity defence, and took the new facts alleged in the factum submitted by Ms.

El Ansari as proven. [ 53 ] It should be recalled that the main appellant did not appear before Bélanger J., that the judge invoked the issue of its jurisdictional immunity on his own motion, and that he allowed it before hearing the merits of the case. The Court’s reasoning in setting aside Bélanger J.’s judgment is clear: it is because [ translation ] “a simple employment contract is generally considered to be a commercial activity”. Therefore, he should not, at that preliminary stage, have dismissed Ms. El Ansari’s motion to institute proceedings.

This explains the ruling in the judgment overturning Bélanger J.’s decision of July 12, 2002, and returning the case to the Superior Court [ translation ] “so that it may rule on the merits of the case”. DOES THE STATE IMMUNITY ACT APPLY IN THIS CASE? [ 54 ] Therefore, once the case was returned to the Superior Court, a reconsideration of the issue of the commercial activity exception in the State Immunity Act , which until then had been avoided, was required first to determine whether jurisdictional immunity applies in this case.

To do so, the judge needed to consider the contradictory evidence adduced before her this time thin the context of the acts that gave rise to the action against the Government of Morocco. [ 55 ] Because the trial judge failed to do so, it is undisputed that we are authorized to review her decision on this issue and, in light of the evidence, to substitute our opinion for hers if possible. We may also return the file to the Superior Court for a new trial.

Since the record is complete, it seems clear in the circumstances that the first option is in order. [ 56 ] At the outset, it should be noted that, in October 2003, Ms. El Ansari was not perfectly transparent.

Indeed, in her appeal factum at the time, she had stated that she had been [ translation ] “recruited locally” in Montreal, that her relationship with her employer was [ translation ] “through a contract of service entered into by the parties on September 1, 1993”, and that she had been [ translation ] “transferred provisionally and temporarily” to the Moroccan embassy in Ottawa on August 31, 1997, essentially to support the administrative staff. [ 57 ] The fact that Ms.

El Ansari implied on a number of occasions that she was a local agent, whereas the evidence shows that she was in fact a civil servant, is determinative, especially since this is a fact of which she could not have been unaware. Indeed, she describes herself thus in her correspondence with her employer and before the courts in Morocco; she states that she was [ translation ] “transferred” [15] to Montreal and then to Ottawa, pursuant to the Moroccan legislation in force. [16] An important portion of her remuneration consists of civil servant benefits such as airplane tickets, per diems, and the IFCR.

Local agents do not receive these types of remuneration. [ 58 ] She also erroneously claimed that she paid federal and provincial income tax in Canada. In actual fact, she was unable to produce her own personal income tax declarations and filed her husband’s instead.

[ 59 ] Finally, her status as a civil servant is the very reason why Ms. El Ansari must regularly address the Chief of Staff of the foreign mission at the Department of Foreign Affairs and Cooperation in Rabat. This is confirmed by the Moroccan law submitted as evidence. [17] [ translation ] Officers in charge, implementation officers, and secretaries, whether on duty at the National Office or in external departments, are subject to the appropriate Minister for all individual management measures . ... [ 60 ] Indeed, the judge recognized that Ms.

El Ansari had been given permanent status in 1968 or 1969 as an “Implementation Officer”. According to the Moroccan law filed as evidence, this meant that she was a civil servant: [18] [ translation ] The staff of the National Office is constituted by the following managers: 1) Officers in charge 2) Implementation officers ... [ 61 ] In some respects, particularly with regard to the calculation of damages, the trial judge also seemed to consider her to be a civil servant. [ translation ] [33] According to Ms.

El Ansari’s testimony, this trip to Morocco in 2000 was a 45-day administrative leave for the years 1997 and 1998.

In accordance with administrative practice for civil servants, she had received airplane tickets for herself and her husband Guessous on February 22, 1999, and these tickets were valid for only one year, until February 21, 2000. ... [52] The amounts she claimed in this letter were never paid to her, with the exception of the IFCR of $9,735.61 in October 2000, long after she had been struck from the list of civil servants of the Government of Morocco. ... [74] In light of the evidence as a whole, and in particular the testimony of Ms. El Ansari and Mr.

Zniber, the only eye-witnesses, the Court accepts the following facts, on a balance of probabilities: 1. Ms. El Ansari joined the Moroccan civil service in 1959, at the Department of National Education. 2. She worked for the government, in Morocco, until 1961. 3. From 1961 to 1979, and from 1993 to 2000, she worked, for remuneration, for the Department of Foreign Affairs of the Government of Morocco in various countries. 4. From 1979 to 1993, she worked as a volunteer but did not lose her status as a civil servant of the Moroccan state. 5. All told, Ms.

Ansari has had only one employer, the Government of Morocco, from 1959 to 2000, a period of forty-one years. 6. In September 1993, she was recruited to work in Montreal for the Government of Morocco, and her remuneration and employment conditions were those of civil servants recruited in Morocco, namely, a minimum base salary plus monthly per diems as well as administrative leave, IFCR payments and a promissory note to pay for any moves, and administrative promotions within scale 2, which she occupied until 2000. ... 9.

She never received a response to her many requests for administrative reassessment, for a transfer from Ottawa to Montreal, or for a suspension of her recall to Morocco in the summer of 2000, despite having obtained a kafala , which had been required by Mr. Zniber in February 2000, when she travelled to Morocco. ... 14. She worked, for remuneration, for the same employer, the Government of Morocco, for twenty-seven years: from 1959 to 1979, and from 1993 to 2000. ... 16.

She is eligible for her Government of Morocco civil service retirement pension as of the date of her being struck from the list, namely, August 1, 2000 (Exhibits P-59, D-66, D-68). She still has not claimed this pension, pending the outcome of these proceedings.

[ 62 ] In other respects, however, the trial judge did not consider Ms. El Ansari to be a civil servant. For example, she wrote the following: [ translation ] [83] Factually speaking, it should be pointed out that the facts accepted by the Court of Appeal in its judgment referred to above were entirely supported by the evidence filed before the undersigned. Ms.

El Ansari was an employee of the Government of Morocco from 1959 to 2000, under a series of open-ended contracts, the final one being a commercial employment contract entered into in September of 1993 for her work in Montreal as Secretary and Administrative Assistant at the Consulate. She was a resident of Montreal and a landed immigrant when this contract was entered into in 1993, and a resident of Montreal when she began these proceedings in 2001.

Moreover, the undersigned has determined that she was recruited locally, in Montreal, in 1993, although her remuneration agreement with her employer included conditions of remuneration connected with her prior years of service (per diems, promissory notes, IFCR, scales) that are usually reserved for civil servants recruited in Morocco. [ 63 ] With respect, this finding of fact does not withstand analysis. In actual fact, the evidence reveals that Ms. El Ansari was not hired locally in Montreal in 1993.

According to her own testimony, she returned to Morocco in 1991 and rejoined the State Department of Foreign Affairs (without pay). She then asked for a new assignment while waiting for a position in Montreal to become available. As noted above, it was only in 1993 that the Moroccan consulate in Montreal called her to tell her that there was a vacant position but that to obtain it she would have to return to Morocco to receive the “transfer” decision in person. The fact that she had become a landed immigrant in Canada in the meantime changed nothing with respect to the nature of her hiring by transfer.

This constitutes a material error of fact on the issue of the application of the commercial exception to the sovereign immunity claimed by the Government of Morocco. [ 64 ] In 1992, the Supreme Court of Canada ruled on the issue of the immunity of the United States of America with respect to a request for certification filed by Canadian civilians working on an American military base, located on Canadian territory under an emphyteutic lease. [19] The employees seeking certification had “minimal exposure to the actual military operations of the base” [20] and hiring decisions fell under the authority of the military base, not U.S. headquarters. [21] All employees had signed an employment agreement in which they agreed not to strike.

They were paid in Canadian dollars and paid taxes to the Canadian government. [ 65 ] The Court was asked to determine whether the certification process was a “commercial activity”, in which case, the State Immunity Act would not apply. [ 66 ] Certain facts of that case potentially weighed in favour of immunity, including: i. the applicants were Canadian citizens; ii. they occupied positions of lesser importance; iii. they had entered into an employment contract in Canada; iv. they paid Canadian income tax; v. hiring decisions were made at the military base on Canadian territory pursuant to a lease. [ 67 ] On the other hand, since the action concerned a certification procedure, there was a risk of strike on the foreign State’s military base. [ 68 ] La Forest J. concluded that “labour relations at the base are not ‘commercial’”. [22] In arriving at this conclusion, he opted for a contextual approach, taking into account the “particular facts” [23] of each case: I would draw one simple lesson from the common law and the American experience in applying a statutory restrictive immunity model: the proper approach to characterizing state activity is to view it in its entire context.

This approach requires an examination predominantly of the nature of the activity, but its purpose can also be relevant. [24] [ 69 ] In that case, he described the activity at issue as hybrid: It is true, no doubt, that a bare contract for employment services at the base is, in and of itself, generally a commercial activity. On that point, no real distinction can be made between a contract for the sale of goods to the base and a contract of employment services. Generally speaking, Canadian employees of foreign sovereign states are entitled to turn to our courts for enforcement of their employment contracts.

This principle is recognized under the American immunity model: Segni v. Commercial Office of Spain , 650 F.Supp. 1042 (1986). As such, the employees in the present case would be entitled to sue, for example, for unpaid wages in the courts of Newfoundland. But, this is not to say that the employment contract falls exclusively within the commercial realm. It has sovereign attributes as well. For example, cases have recognized that foreign states are immune from wrongful dismissal claims when the dismissal was for national security reasons: Van der Hulst v.

United States , Supreme Court of the Netherlands, No. 13.696, December 22, 1989, unreported; Kayiambakis v. United States , Norway, Eidsivating App.

Ct., May 29, 1989, unreported. [ 70 ] Finally, he found that the commercial activity exception did not apply because the certification proceedings only "incidentally affect" the commercial activity. [25] The "competing" link between the certification proceedings and the internal management of the base must prevail: I also agree with the Attorney General of Canada that the objective of the Board's proceedings is the imposition of collective bargaining by the Canadian state, and under the control of a Canadian court.

The nexus between this objective and the management of the base constitutes an unacceptable interference with American sovereignty. [26]

[ 71 ] That being established, it should be noted that the application of the State Immunity Act to an employment contract between a State and a foreign civil servant, or to one pertaining to a local civil servant working for an embassy, raises issues both in Canada and abroad. [ 72 ] Mohamed Salem El-Hadad v.

United Arab Emirates and The Embassy of the United Arab Emirates , a decision of an American court, is an analogous case. [27] The United States Court of Appeal for the District of Columbia was asked to rule on the application of the Foreign Sovereign Immunities Act [28] to an employment contract between and Egyptian civil servant and the United Arab Emirates embassy, in order to determine whether it was a commercial activity. An excerpt of the relevant legislation reads as follows: § 1605 General exceptions to the jurisdictional immunity of a foreign state (

a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case – … (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon

an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon

an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States; … [ 73 ] Although the employment contract at issue was not signed in the United States, it could have been connected to a commercial activity, since El-Hadad was a citizen of Egypt.

He was therefore considered by the legislation of the United Arab Emirates to be a local agent and not a "civil servant", a status reserved for its own citizens. [ 74 ] The United States Court of Appeal pointed out, however, that an employment contract between a foreign country and a civil servant working in an embassy is not in itself a commercial activity.

To determine whether he was a civil servant and also to ensure that the sovereignty of the foreign state would not be usurped, the Court set out a list of five criteria: [29] On the other hand, some countries might lack the notion of a “civil servant” altogether, and others might define the notion in a way far afield of FSIA’s purpose. We therefore take a flexible and inclusive approach to determining whether a foreign government’s employee is a civil servant.

El-Hadad II lists five generally relevant considerations, while noting that the list is not exclusive, necessarily applicable in all cases, or, unfortunately (but unavoidably), analytically precise: First, how do the U.A.E.’s own laws define its civil service, and do El-Hadad’s job title and duties come within that definition? Second, what was the nature of El-Hadad’s employment relationship with the U.A.E.? Did he have a true contractual arrangement, or is his “contract” claim instead based, as the U.A.E. contends, solely upon the civil service laws of the U.A.E.?

Third, what was the nature of El-Hadad’s employment relationship with the U.A.E. and how did his subsequent employment at the Embassy relate to that prior tenure? The U.A.E. contends that El-Hadad was a long-time resident and member of its domestic civil service, who was merely “transferred” to Washington to perform the same functions (governmental audits) he had been performing at home. El Hadad contends, on the other hand, that he quit his position in the U.A.E. and began a “new” job in the United States, “separate from his previous employment”. Fourth, what was the nature of El-Hadad’s work?

As noted above, Congress indicated that the “employment or engagement of laborers, clerical staff or public relations or marketing agents” would come within the definition of commercial activity. Fifth, what is the relevance of El-Hadad’s Egyptian nationality on the facts of this case? Is the U.A.E. a country in which, as the House Report assumed, non-nationals are unlikely to be employed as governmental officers?

Or does the U.A.E. often employ non-nationals in governmental positions? [ 75 ] It concludes that it is not bound by the "civil servant" label and decides to analyze the employer-employee relationship in order to determine whether there was interference with the sovereign functions of the foreign State. [ 76 ] In many respects, this approach is similar to the contextual analysis advocated by the Supreme Court of Canada in the decision referred to above. [ 77 ] With respect, if the trial judge had applied this approach to all of the evidence adduced before her, and particularly to the background of the employment relationship between Ms.

El Ansari and the Government of Morocco, there would have been only one conclusion available to her: Ms. El Ansari has not succeeded in discharging her burden of establishing the exception to the principle of immunity of jurisdiction to which the appellant is entitled under the State Immunity Act . [ 78 ] Certainly, Ms. El Ansari was not a diplomat, and her duties did not touch on the heart of the diplomatic activities of Morocco.

Nevertheless, my contextual analysis leads me to find that the following factors are determinative: • Moroccan law defines the respondent as a civil servant with the status of "Implementation Officer". [30] As such, she received benefits reserved for civil servants; • She did not sign her employment contract in Canada, and she began working at the Moroccan embassy in Montreal only once she received the transfer decision from Morocco, where she had to travel for this reason. The respondent's situation with respect to the National Administration in Morocco was [ translation ] "statutory and regulatory". [31]

• Moroccan law provides that civil servants [ translation ] "are subject to the relevant Minister for all individual management measures". [32] It appears that the respondent's situation is overseen by the National Department in Morocco, as her correspondence with her employer attests (for example, her request for airplane tickets, holidays, IFCR reimbursements, and so on); • The respondent has been a Moroccan civil servant for over thirty years. As a civil servant for the Department of Foreign Affairs, she may expect to be transferred every two to four years.

As a general rule, Moroccan law provides that she may not stay in the same country for more than six years. [33] • Although she has both Moroccan and Canadian citizenship, she benefits from the status of civil servant pursuant to her Moroccan citizenship. Moroccan law also provides that anyone who is not a Moroccan citizen may not be a civil servant. [34] • Ms. El Ansari has not proved that she paid her income taxes in Canada, and her employer does not pay into any employment insurance plan or into the Quebec or Canada pension plan.

As a result, if she wished to receive this type of compensation, she would have to address the relevant Moroccan authority. • Finally, she instituted two actions in Morocco concerning her remuneration and her dismissal as a civil servant before bringing her proceeding before the Superior Court of Quebec. [ 79 ] In short, it is difficult to see how the employment relationship between the Government of Morocco and one of its civil servants working at its Canadian embassy or its Montreal consulate could in any way be a "commercial activity". Its employment relationship with Ms.

El Ansari is clearly an internal management problem and should remain so. Despite any sympathy her situation as an employee may inspire, and despite the treatment she claims to have suffered, Canadian courts must not intervene; if they did, they would infringe on the sovereignty of the Government of Morocco. [ 80 ] Consequently, I am of the view that the Government of Morocco benefits from the immunity conferred by the State Immunity Act. [ 81 ] Given this conclusion, there is no need to analyze or rule on the other main grounds of appeal, which have become moot.

The same is true with regard to the incidental appeal brought by Ms. El Ansari, which should be dismissed. * * * * * [ 82 ] In conclusion, it is worth bringing our attention to the judgment of the Supreme Court rendered on October 21, 2010, in Kuwait Airways Corp. v. Iraq , [35] which deals with immunity of jurisdiction and the application of the commercial activity exception.

That case was heard by the Supreme Court after the hearing of the case before us now. [ 83 ] A consideration of that case reveals that it reiterates the principles set out in Re Labour Code of Canada , [36] which have been applied in this case. This new judgment in no way modifies the law applicable to the case before us, and there is therefore no need to discuss it any further. VI – CONCLUSION [ 84 ] For these reasons, I would allow the main appeal, set aside the trial judgment, and dismiss Ms.

El Ansari’s amended motion to institute proceedings and her incidental appeal. [ 85 ] Normally, the rule is for the losing party to pay costs in both first instance and appeal. The matter before us is a special case, however, since the Government of Morocco imprudently chose not to appear before Bélanger J. to argue its rights as soon as possible. Therefore, I would order each part to pay its own costs in both first instance and appeal. JACQUES A. LÉGER, J.A. [1] See selected excerpts in paragraph 39, under Moroccan Legislation. [2] R.S.C. (1985), c. S-18 .

Sections 3 and 5 are reproduced below in paragraph 39, under the heading “Relevant legislative provisions”. [3] Many of these letters are reproduced in paragraphs 28 to 62 of the trial judgment. [4] She was assigned to the Passport Department and to the Secretariat of the Consul General. [5] She was assigned to media clippings, mail distribution, and secretarial duties. [6] She was a temporary replacement for the Secretary to the Ambassador. On July 21,she received a cheque for $1,972.18 for her per diem allowance.

Another payment of $438.88 was made on August 9 for her monthly allowance. [7] This includes, among other things, the IFCR for 1997 and 2000, as well as her airplane tickets for 1995, 1999, and 2000.

[8] Regarding the seven-day period, Abdelilah El Housni, head of the Department of Programming and Regulation for the Governmentof Morocco, testified that the seven-day period begins to run upon receipt of the formal notice; see

section 75 bis of the Statut général dela fonction publique marocaine, reproduced below. [9] Dahir No. 1-91-225 of 22 Rabi I 1414 (10 September 1993) enacting Statute No. 41-90 instituting administrative tribunals, s. 3. [10] R.S.C. (1985), c. S-18. [11] The hearing lasted less than one hour, after which the matter was taken under advisement; Montreal 500-05-063377-012 (Sup.Ct.). [12] These allegations are discussed below in the Analysis

section of this judgment, at paras 49-52. [13] Judgment under appeal at para. 84. [14] Judgment under appeal at para. 74. [15] Testimony of Liliane Marsik, vol. 6 at 1760: a local agent, unlike a civil servant, signs an employment contract. [16] Royal Decree No. 1182-66 of 27 Qua'da 1386 (9 March 1967) conferring special status on diplomats and consular officials,section 18: This

article provides that the continuous service of a civil servant abroad [translation] "shall be no less than two years and nogreater than four years". [17] Decree No. 2-62-345 of 15 Safr 1383 (8 July 1963) conferring special status on National Office managers and civil service jointstaff,

section 3. [18] Decree No. 2-62-345 of 15 Safr 1383 (8 July 1963) conferring special status on National Office managers and civil service jointstaff,

section 1. [19] Re Canada Labour Code, (SCC), [1992] 2 S.C.R. 50. [20] Ibid. at para. 5. [21] Ibid. at para. 4. [22] Ibid. at para. 21. [23] Ibid. at para. 33. [24] Ibid. at para. 34. [25] Ibid. at para. 46. [26] Ibid. at para. 49. [27] 496 F.3d 658; 378 U.S. App. D.C. 67; 2007 U.S. App.

LEXIS 17904 (2007 – United States Court of Appeals for the District ofColumbia Circuit), motion in certiorari to the United States Supreme Court dismissed. [28] 28 U.S.C. § 1602 et seq.(1976). [29] These five criteria are essentially the same as those cited in a work submitted by the respondent, edited by the Council ofEurope, which provides a guideline to the determination of whether the sovereignty of a foreign county is at issue in the context of thejudicial consideration of an employment contract.

They are the following: the nature of the employee's work and the status of theemployee, the object of the claim, security interests, nationality and residence of the employee at the time the contract was entered into,and other circumstances including the duration of the employment relationship between the State and the employee. See State PracticeRegarding State Immunities, Council of Europe and Gerhard Hafter, Marcelo G.

Kohen & Susan Breau, eds., 2006 at 88–96. [30] Decree No. 2-62-345 of 15 Safr 1383 (8 July 1963) conferring special status on the managers of National Administration and jointstaff of Public Administration,

section 1; Dahir No. 1-58-0-008 of 4 Sha'ban 1377 (24 February 1958) conferring general status on thePublic Service. [31] Dahir No. 1-58-008 of 4 Sha'ban 1377 (24 February, 1958) conferring general status on the Public Service,

section 3. [32] Decree No. 2-62,345 of 15 Safr 1383 (8 July 1963) conferring special status on National Office managers and civil service jointstaff,

section 3. [33] Royal Decree No. 1182-66 of 27 Qa'dah 1386 (9 March 1967) conferring special status on diplomatic and consular agents, section18. [34] Dahir No. 1-58-008 of 4 Sha'ban 1377 (24 February 1958) conferring general status on the Public Service,

section 21. [35] 2010 SCC 40. [36] Supra note 19.