Northwest Atlantic Fisheries Organization v. Amaratunga, 2011 NSCA 73

NOVA SCOTIA COURT OF APPEAL Citation: Northwest Atlantic Fisheries Organization v. Amaratunga , 2011 NSCA 73 Date: 20110823 Docket: CA 343395 Registry: Halifax Between: Northwest Atlantic Fisheries Organization, a body corporate Appellant v. Tissa Amaratunga Respondent Judge: The Honourable Chief Justice Michael MacDonald Appeal Heard: June 7, 2011, in Halifax, Nova Scotia Subject: International organizations; international law; immunity from suit; employment law, wrongful dismissal.

Summary: In this appeal, we explore the extent to which an international organization should be bound by the laws of the jurisdiction where it has set up shop. The respondent commenced a wrongful dismissal suit against his employer, an international organization. The employer claimed immunity from this suit and sought a declaration accordingly. The Nova Scotia Supreme Court denied this relief and the employer now appeals to this court. Issue: Did the judge commit reversible error by denying the appellant a declaration of immunity, as an international organization? Result: Appeal allowed.

The appellant was immune from the present suit and the judge erred in concluding otherwise. This information sheet does not form part of the court ’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 34 pages.

NOVA SCOTIA COURT OF APPEAL Citation: Northwest Atlantic Fisheries Organization v. Amaratunga , 2011 NSCA 73 Date: 20110823 Docket: CA 343395 Registry: Halifax Between: Northwest Atlantic Fisheries Organization, a body corporate Appellant v. Tissa Amaratunga Respondent Judges: MacDonald, C.J.N.S.; Beveridge and Bryson, JJ.A. Appeal Heard: June 7, 2011, in Halifax, Nova Scotia Held: Appeal allowed per reasons for judgment of MacDonald, C.J.N.S.; Beveridge and Bryson, JJ.A. concurring. Counsel: John T. Shanks and Richard M. Dunlop, for the appellant David A. Copp, for the respondent

Reasons for judgment : [ 1 ] In this appeal, we explore the extent to which an international organization should be bound by the laws of the jurisdiction where it has set up shop. BACKGROUND [ 2 ] The appellant Northwest Atlantic Fisheries Organization (“NAFO”) is an international body comprised of 13 signatories representing approximately two dozen independent countries, including Canada. It is the product of the 1978 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries , 1135 U.N.T.S.369 (1978), Can. T.S. 1979, No. 11.

Headquartered in Dartmouth, Nova Scotia, its mandate is to manage and preserve fishing resources in the northwest Atlantic Ocean. [ 3 ] The respondent, Tissa Amaratunga, began working for NAFO at its headquarters in 1988 in a senior management position. His duties were summarized in NAFO’s factum: 11.... In NAFO Secretariat’s second highest position of employment, Mr. Amaratunga was required, among other things to: • Assume the duties of the Executive Secretary in an acting capacity as needed; • Administer and manage the Scientific Council.

The Scientific Council’s general function is to provide a forum for consultation and cooperation among the contracting countries with respect to the study, appraisal and exchange of scientific information and views relating to the fisheries of the Convention Area. • Establish and maintain close personal contact and liaison with statistical offices in numerous countries and represent the Executive Secretary, when necessary, in dealings with other international organizations which have related objectives. • Attend numerous international workshops, meetings and sessions in his capacity as Deputy Executive Secretary or Assistant Executive Secretary.

Mr. Amaratunga represented NAFO at these meetings. • Be “informed of senior management level operational and staff matters involving the [NAFO] secretariat and receive full confidence of Executive Secretaries.” [ 4 ] Mr. Amaratunga continued in that capacity until June of 2005, when his employment was terminated. This prompted the subject action; a wrongful dismissal suit in the Supreme Court of Nova Scotia. [ 5 ] In response, NAFO claimed immunity as an international organization. It, therefore, asked the Supreme Court to declare itself without jurisdiction to adjudicate the matter.

Its claim was based in part at least on an immunity order issued by the Government of Canada pursuant to the Privileges and Immunities (International Organizations) Act , R.S.C. 1985, c. P-22 (“ PIA ”). This provision remains in effect pursuant to successor legislation, the Foreign Missions and International Organizations Act , S.C. 1991, c. 41 .

It is limited to situations where immunity is “required for the performance of [NAFO’s] functions” and incorporates provisions from the Convention on the Privileges and Immunities of the United Nations , 1 U.N.T.S. 15 (1946), Can T.S. 1948, No. 2: 3(1) The Organization shall have in Canada the legal capacities of a body corporate and shall, to such extent as may be required for the performance of its functions, have the privileges and immunities set forth in Articles 11 and 111 of the Convention for the United Nations. [“UN Convention”]

[ 6 ] The relevant aspects of the United Nations Convention are: The United Nations, its property and assets wherever located by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity ... [Article ll, s.2.] [ 7 ] Wright, J. of the Supreme Court dismissed NAFO’s motion concluding that s. 3(1) was inapplicable because immunity from this particular suit was not “required for the performance of its functions”. [ 8 ] Citing several errors of both fact and law, NAFO now appeals to this court.

For the reasons that I will develop, I would allow the appeal and uphold NAFO’s immunity. THE ISSUES [ 9 ] At the outset, it is interesting to observe how the issues were initially developed before the motions judge, only to be transformed on appeal. The Issues Before the Motions Judge [ 10 ] Before Wright, J., NAFO stepped boldly to assert that it could claim immunity based solely on established international law without even having to rely on its immunity order. In other words, s. 3(1) was merely complementary to a broader rule of immunity for international organizations such as NAFO.

It explained it this way in its pre-motion brief: ¶24NAFO’S primary position, which is consistent with the rules of customary international law, is that in order for NAFO to perform its functions as an international organization, it requires, inter alia , immunity from Canadian labour and employment laws, which includes, wrongful dismissal lawsuits, with respect to any and all of its employees. ¶25It is a principle of customary international law that international organizations are entitled to such privileges and such immunity from the jurisdiction of a member state as are necessary for the fulfillment of the purposes of the international organization.

One of the important protections granted to international organizations is immunity from lawsuits by employees of the organization in actions arising out of the employment relationship. The rationale for international organization immunity is: (i)International organizations require protection from unilateral control by a member nation over the activities of the international organization within its territory. (ii)An international organization cannot reasonably be expected to have its employment practices comply with each member countries’ labour and employment laws.

The functioning of an international organization could be greatly hindered if it could be subjected to lawsuits worldwide. (iii)An administrative body of an international organization should remain independent from the intranational policies of the individual members. ¶26The wording of the NAFO Immunity Order, namely, the enjoyment of immunity from every form of legal process “to such extent as may be required for the performance of its functions” does not conflict with and, in fact, closely resembles the rule of customary international law that international organizations should enjoy immunity from employment-related lawsuits.

[ 11 ] Mr. Amaratunga flatly denied this proposition. Instead, he insisted that if NAFO were to enjoy immunity, it must be rooted in s. 3(1) . He hastened to add that s. 3(1) would be of no assistance in this case because immunity was simply not required. [ 12 ] This debate was nourished greatly by two eminent international law experts, Professor Ed Morgan from the University of Toronto on NAFO’s behalf and Professor Philip Saunders from the Schulich School of Law at Dalhousie University on Mr. Amaratunga’s behalf.

The judge admired them both: ¶15Both parties retained renowned legal experts in the field of international law in support of their respective positions on the immunity claim. The plaintiff retained Phillip Saunders who, at the time of the writing of his report, was Dean and Weldon Professor of Law at the Schulich School of Law at Dalhousie University in Halifax. Professor Saunders is also a member of the Nova Scotia Barristers' Society.

The defendant NAFO retained Ed Morgan, a full professor at the University of Toronto, Faculty of Law, who is also a barrister in the Province of Ontario. ¶16 Both experts have impressive credentials in the field of international law. By agreement of counsel, and with the approval of the court, both were qualified as experts in international law, able to express opinion evidence with respect to international law and, in particular, the law respecting immunity of sovereign states and international organizations. [ 13 ] Those experts disagreed. Initially, they were poles apart.

For example, Professor Morgan insisted that international organizations such as NAFO enjoyed immunity from domestic suits, plain and simple. In fact, this immunity could be stronger than that enjoyed by sovereign states: ¶14International organizations and treaty bodies such as NAFO are treated by international law and policy as having the same, and sometimes even more extensive, immunity from domestic court jurisdiction as do foreign sovereign states. In the Reparations Case (Advisory Opinion), [1949] LC.J.

Rep. 174, the International Court of Justice held that the United Nations itself, as a creature of multilateral treaty among its member states, is the functional equivalent of a state, with all of the juridical personality and standing before the international court that inhere to sovereign states. Likewise, the Italian Court of Cassation has found that the North Atlantic Treaty Organization enjoys the same privileges and immunities as the member states that form the organization, Branno v. Ministry of War , 22 I.L.R. 756 (1954).

That same court later confirmed that international organizations serve "sovereign functions" and therefore deserve an immunity that is the functional equivalent of their sovereign creators, Maida v. Administration for International Assistance , 23 IL.R. 510 (1955). ¶15As noted by the U.S.

Court of Appeals for the District of Columbia, “The strong foundation in international law for the privileges and immunities accorded to international organizations denotes the fundamental importance of these immunities to the growing efforts to achieve coordinated international action through multinational organizations with specific missions.” Mendaro v. International Bank for Reconstruction and Development , 717 F. 2d 610 , 614 (D.C. Cir., 2007).

Moreover, it is generally the case that "an international organization is entitled to such privileges and such immunity from the jurisdiction of a member state as are necessary for the fulfillment of the purposes of the organization, including immunity from legal process, from financial controls, taxes and duties.” Restatement of the Foreign Relations Law of the United States (Revised) §464(1) (Tentative Draft No. 4) (1983). ¶16The immunities enjoyed by international organizations are deeply entrenched in international law and policy.

Thus, for example, while they may be waived by an organization that consents to being sued, such waiver must be explicit and cannot be implied through a course of action engaged in by the organization. Boimah v. United Nations General Assembly , 664 F. Supp. 69 (E.D.N.Y.,1987). ¶17This deeply held commitment to immunity flows from the broadly accepted principle that international organizations must be free to perform their functions and that no member state may take action to hinder the organization.

See, XIlI Documents of the United Nations Conference on International Organizations 704-05 (1945), reprinted in 13 Whitman, Digest of International Law 36 (1968). The states that host these organizations and treaty bodies on their territory are therefore required to provide a legal environment which ensures that, “[i]nternational officials should be as free as possible, within the mandate granted by the member states, to perform their duties free from the peculiarities of national politics.” Broadbent v. Organization of American States , 628 F. 2d 27 , 34 (D.C.

Cir., 1980). [ 14 ] Further, wrongful dismissal suits such as this would fall under this broad umbrella:

¶18One of the most important of these protections granted to international organizations is “immunity from suits by employees of the organization in actions arising out of the employment relationship.” Mendaro, supra , 717 F. 2d 610 , 615. The necessity of applying the immunity principle to the international organization employment context has been confirmed by courts in the United States, Tuck v. Pan American Health Organization , 668 F. 2d 547 , 550 & n. 7 (D.C. Cir., 1981), as well as by courts in Europe, International Institute of Agriculture v. Profili , 5 Ann.

Dig. 413 (Court of Cassation, Italy, 1931); Chemidlin v. International Bureau of Weights & Measures , 12 Ann. Dig. 281 (Tribunal Civil of Versailles, France, 1945), and by governments in countries which typically host the headquarters and offices of such organizations, Confidération Suisse, Regime of Privileges and Immunities , Federal Department of Foreign Affairs, http//www.eda.admin.ch/eda/en/home/topics/intorg/un/unge/gepri/manimm/ manim3.html (accessed online 9/16/07).

Indeed, immunity from domestic court jurisdiction for international organizations has become so widely acknowledged that it is no longer reliant on specific treaty provisions, but rather is now accepted as customary international law.

Restatement of the Foreign Relations Law of the United States (Revised), §464 Comment 'a' & Reporters' Note 4 at 73 (Tentative Draft No.4) (1983). [ 15 ] Thus, it would take an express waiver to eliminate NAFO’s immunity in this matter: ¶21Public policy therefore demands that treaty bodies and international organizations that operate on the territory of a member state be accorded jurisdictional immunity from suits in the domestic courts of that state, in the absence of an express waiver of that immunity.

Accordingly, international law as implemented by Canada requires that such organizations have the benefit of immunity from civil suits by their employees and all others in the Canadian courts. [ 16 ] Professor Saunders said quite the opposite in his report. His position was simple. There is no such rule of international law. NAFO therefore could look only to s. 3(1) for relief. In other words, NAFO would have to prove that immunity would be “required” in the context of this case.

He explained: ¶15Unlike sovereign immunities of states, which are based in a recognition of the sovereign equality of states, the grant of immunities international organizations is justified on the basis that the organizations require some degree of protection from unilateral intervention by one national government, including, in some circumstances, national court processes and other interventions by governments, in order to carry out their functions effectively.

This functional approach to immunities of international organizations has dictated that the immunities of such organizations are not uniform (as is the case with states) but rather are highly variable, consistent with the wide range of purposes for which such organizations are created, and the many hundreds of such organizations that now exist. P. Bekker, The Legal Position of Intergovernmental Organizations : A Functional Necessity Analysis of Their Legal Status and Immunities (1994), 100, 114. ¶16The United Kingdom Foreign Office has expressed this position as follows: ...

What is appropriate in one case may not be so in another. Thus the United Nations Organisation may be called upon to act in emergencies in all parts of the world in difficult situations. Its functions are highly political in character and therefore liable to attract a large measure of unfavourable criticism. For these and other reasons it has need of an exalted status for itself and its staff members to enhance its authority. Its privileges and immunities should, and do, reflect these considerations.

An organisation of more limited membership with narrower and less controversial functions cannot be regarded as having comparable needs in the matter of privileges and immunities ... . Memorandum by the Government of the United Kingdom on the privileges and immunities of international organisations and people connected with them (Foreign Office, 10 March 1965); as cited in Bekker, supra , 115. ¶17A further distinction from state immunity is found in the legal source of immunity.

Whereas state immunity derives from a rule of customary international law, the primary legal sources of immunity for most international organizations are found in the conventions that create them, in any other agreements that specify their immunities and in national legislation that grants them immunities. Restatement (Third) §.467, comment (a); Law of International Institutions, supra, 487.

In the Restatement (Third) it has been suggested that the United Nations and some other organizations (including significant regional organizations such as the Organization of American States) may enjoy immunity as a matter of customary international law. Restatement (Third) §.467, comment (a).

In my opinion NAFO does not fall into this latter category of organization, as it is an organization of limited technical purposes, with no broader political or security functions. . . . ¶58The foregoing analysis leads me to the conclusion that NAFO is not entitled to complete other [sic] absolute immunity from legal process in Canadian courts. Rather, NAFO is entitled to immunity from legal process to the extent, and only to the extent, that it can

show that immunity in a particular case is "required for performance of its functions".

In addition to this general conclusion, I have reached conclusions on the specific issues which follow: i.It is common practice for member states of international organizations to grant immunities, of varying scope, to international organizations, especially when the headquarters of the organization are located in the state in question. ii.In my opinion, based on the authorities and materials examined, there is no rule of customary international law requiring that immunity from legal process be granted to international organizations such as NAFO, or that any particular level of immunity be granted. iii.In my opinion, based on the authorities and materials examined, the immunities of international organizations are generally derived from their constitutive treaties, from other agreements (such as headquarters agreements) and from national legislation.

Where such instruments exist, they fully define the immunities of the organization in question. iv.In the case of NAFO, it is my opinion that the only immunities to which it is entitled are those set out in the NAFO Immunity Order, which is both a national legislative instrument and reflective of an agreement between Canada and NAFO. v.In my opinion, where an international organization is granted immunities only to the extent required for the performance of its functions, there is no rule of customary law requiring that employment disputes must be immune from legal process. vi.Where immunity from jurisdiction over employment disputes has been recognized, a significant consideration has been whether or not employees have access to an independent and objective dispute settlement procedure within the organization. vii.There is not, to my knowledge, any Canadian case which has dealt with the extent of immunity available in employment disputes, for international organizations with limited immunities.

There is, however, caselaw which has decided that in the application of restrictive (i.e. limited) immunity to sovereign states, employment disputes may be subject in whole or in part to the jurisdiction of Canadian courts. viii.The caselaw applicable in the analogous situation of restrictive sovereign state immunity suggests that employment contracts of international organizations with limited immunity should be similarly subject to the jurisdiction of Canadian courts. [ 17 ] Then, under cross examination, Professor Morgan modified his position somewhat.

He conceded that customary immunity was not “bulletproof” or “absolute, absolute”. In other words, while, for example, diplomats might have absolute immunity from suit, NAFO’s immunity may be limited to those suits that “relate to its function”: A.Well, that's true everywhere. The specific agreement can displace, can specify, can change anything that prevails as a custom. Q. So, in Switzerland — A. True in -- by the way, true in Canada, also. One must say, of course, that Canada's dealings with NAFO have a specificity to them. Q.

But there doesn't seem to be a law in Switzerland that says that headquarters agreements have to have provisions about immunities. A. No. Q. And if they didn't —

A. They don't have to. Q. --- then the organization is bulletproof, according to the theory of customary law? A.No, sir, not bulletproof ; different than diplomats. Diplomats are what you might call bulletproof. Organizations and their personnel are not bulletproof. They don't have absolute, absolute immunity. They have immunity that relates to their function as an international organization. Q.But, to that extent, the function extent, they are bulletproof. A. Yes, to the extent that it relates to their functioning as an international organization . [ 18 ] This is an important concession.

In fact, it reveals that, in the end, the two experts are not that far apart. In other words, they would now appear to agree that NAFO’s immunity is not absolute but qualified according to its function as an international organization. That said, Professor Saunders would continue to limit any potential immunity to that provided by s. 3(1) , and thereby see it available only when “required” to perform its functions. [ 19 ] Meanwhile, Professor Morgan did not entirely abandon the influence of customary international law.

He insisted that immunity would still be available as long as the suit merely “related” to the performance of NAFO functions. In other words, he would not limit it to situations where immunity was “required”. [ 20 ] In any event, NAFO covered all bases before the motions judge by advancing an alternative submission. Specifically, if necessary, it would still be content to rely on s. 3(1) , maintaining that immunity from this suit was indeed “required for the performance of its functions”.

I refer again to its pre-hearing brief: ¶27NAFO’s alternative position is that in order for it to perform its functions as an international organization, it requires, inter alia , immunity from Canadian labour and employment laws, which include wrongful dismissal lawsuits, with respect to employees in the NAFO Secretariat who fall into a category of employees who play a direct role in carrying out the functions of NAFO. NAFO says that as Assistant and Deputy Executive Secretary, Mr. Amaratunga played a direct role in the functioning of NAFO. [ 21 ] As noted, Wright, J. rejected both prongs of NAFO’s argument.

Instead, he ruled that NAFO’s only potential recourse would be under s. 3(1) , which in the case would be inapplicable because immunity was not “required”. I will discuss his reasoning in more detail later.

The Issues on Appeal [ 22 ] Before us, NAFO lists the following grounds of appeal: The Learned Trial Judge erred when he determined that the Northwest Atlantic Fisheries Organization Privileges and Immunities Order (the ''NAFO Immunity Order") did not exclude the Claim from the jurisdiction of the Nova Scotia Supreme Court in the following respects: 1.The Learned Trial Judge erred in law by: (a)interpreting the NAFO Immunity Order in a manner inconsistent with established Canadian jurisprudence;

(b)finding that the Claim, if permitted to continue, will not have an impact upon the internal organization, management or governance of NAFO. 2. The Learned Trial Judge made the following legal errors of statutory

interpretation by: (a)interpreting the NAFO Immunity Order in a manner contrary to the principles of international law; (b)interpreting the lack of a “commercial activity”' exemption in the NAFO Immunity Order in a manner contrary to the rules of statutory

interpretation; (c)interpreting the word "required" contained in the NAFO Immunity Order in a manner contrary to the rules of statutory

interpretation. 3. The Learned Trial Judge made the following errors of fact by: (

a) finding, in direct contradiction to the affidavit evidence before him, that NAFO did not assert cause for the dismissal of Mr. Amaratunga; (

b) finding, without any evidentiary basis, that “international organizations typically are regulatory and/or research bodies which don't normally engage in commercial activities to any material extent.” 4.The Learned Trial Judge made an error of law, or in the alternative, an error of fact by ''prefer[ing] the opinion of Professor Saunders [over that of Professor Morgan] that there is no customary international law rule requiring the granting of complete immunity from all legal processes of international organizations and that the sole source of NAFO's immunity in this case is the NAFO Immunity Order as legislated." [ 23 ] These grounds of appeal are interesting.

Note that they effectively represent only one overarching assertion; namely, that the judge erred in not applying the immunity order to exclude the Supreme Court’s jurisdiction. Significantly, NAFO seems to have abandoned its reliance on customary international law as a stand-alone basis for immunity. [ 24 ] In my view, therefore, this appeal comes down to these two basic questions: 1.Did the judge err in his

interpretation of the phrase “ required for the performance of its functions ” as contained in s. 3(1) of NAFO ’ s immunity order? This involves a question of law that we would therefore review on a correctness standard. In other words, should we disagree with the motions judge ’ s

interpretation, our view would prevail. See: Bristol-Myers Squibb Co. v. Canada (Attorney General) , 2005 SCC 26 , [2005] 1 S.C.R. 533 at paras. 36-38 and Gillis v. MacKeigan , 2010 NSCA 101 , 298 N.S.R. (2d) 149 at para. 11 . 2.Did the judge err in finding that immunity was not “ required ” in this case? This involves either a question of fact or a question of mixed fact and law. Either way, deference is required. Specifically, we will not interfere short of palpable (clear) and overriding (determinative) error absent an extricable error in law. See: Housen v.

Nikolaisen , 2002 SCC 33 , 2 S.C.R. 235 at paras. 26-36 and McPhee v. Gwynne-Timothy , 2005 NSCA 80 , 232 N.S.R. (2d) 175 at para. 32 . ANALYSIS

Did the judge err in his

interpretation of the phrase “ required for the performance of its functions ” ? [ 25 ] It would be helpful to begin with a closer look at the judge’s reasoning. Here it is clear that he fully appreciated this issue. In fact, he addressed it head on: ¶51 In light of the foregoing analysis, the scope of immunity granted under the NAFO Immunity Order can be restated as follows. NAFO, having the legal capacity of a body corporate in Canada, enjoys immunity from every form of legal process (barring waiver) to such extent as may be required for the performance of its functions. The difficulty in this case lies in the proper

interpretation to be given to those latter words of limitation, especially where there does not exist any Canadian case law directly on point to assist. . . . ¶54 What the court must keep in focus is how the subject legislative instrument (i.e., the NAFO Immunity Order) ought to be interpreted in accordance with general principles of statutory

interpretation and in a manner consistent with principles of international law as articulated in the expert reports. As Professor Saunders put it, and I agree, whether or not employment disputes are to be accorded immunity in any given case must first be a matter of

interpretation and application of the applicable grant of immunity. The correct approach must be to interpret and apply the relevant instrument (here the NAFO Immunity Order) recognizing that it is not possible to mandate, as a universal rule of law, a single interpretative approach to a wide variety of legal instruments. ¶55 It is readily apparent that the key words of the NAFO Immunity Order to be judicially interpreted are the words of limitation "to such extent as may be required for the performance of its functions".

Do those words in the final analysis serve to permit or oust the jurisdiction of this court to adjudicate the plaintiff's claim for wrongful dismissal? [ 26 ] He then zeroed in on the word “required”, giving it its plain and ordinary meaning - “necessary or essential”.

In the process, he rejected Professor Morgan’s view that would see NAFO immune from any suit that was simply “related to” as opposed to “required for” the performance of its functions: ¶67 I have considered all the arguments made by counsel both in their written and oral submissions and see no compelling reason why the word "required" should not be given its plain and ordinary meaning in this case. "Required" means necessary or essential. Even looking at the word contextually, I am not persuaded that it should be read down to mean "related to" the performance of NAFO's functions (as espoused by Professor Morgan).

The use of the word "required" in that context indicates that the drafters of the NAFO Immunity Order did not intend to create an unlimited immunity (barring waiver) for an organization operating within the scope of its duties and mandate. [ 27 ] He then considered the type of suit that would justify a declaration of immunity. He set the bar high.

In essence, the suit would have to represent “an impermissible intrusion into NAFO’s internal management”, “NAFO’s official functions [being] significantly impeded”, or “excessive interference or hindrance in [its] actual operations”: ¶69 In the present case, there is very little factual evidence to sustain the argument that it would be an impermissible intrusion into NAFO's internal management for the court to take jurisdiction.

One must also keep in mind, as recited earlier from Professor Saunders' report, that employment cases are not a single unitary category and that jurisdiction can be asserted for some aspects of an employment dispute while other aspects ought to be subject to immunity. ... ¶70 Professor Saunders wrote in his report that he has not been made aware of any aspect of NAFO's official functions which would be significantly impeded by the imposition of an obligation to pay monetary entitlements to a former employee, as sought here. Neither has the court been made so aware from the evidence before it.

I conclude, therefore, notwithstanding the able arguments of its counsel, that NAFO has not satisfied the burden resting upon it to demonstrate that immunity from this legal process is required for the performance of its functions. I am not persuaded that excessive interference or hindrance in the actual operations of NAFO would be visited upon it were the court to take jurisdiction in a claim of this nature.

[Emphasis added.] [ 28 ] It is at this stage that, in my respectful view, the judge began to slip into error. I say this because he appeared to limit s. 3(1) ’s reach to only those cases where the impugned law suit would jeopardize the organization’s ongoing operations. Furthermore, he seemed to focus only on the potential outcome of the suit, namely, “to pay monetary entitlements”, as opposed to how the actual court process might interfere with NAFO’s functions. This, in my view, represents an overly restrictive approach.

I say this for the following reasons. [ 29 ] Firstly, let me say that I agree with the judge’s rejection of Professor Morgan’s thesis that immunity should be granted to every action that would simply be “related to” the performance of NAFO’s function. Essentially such an

interpretation would mean unlimited immunity for NAFO, thereby rendering s. 3(1) meaningless. For example, all of NAFO’s commercial activities, however routine, would clearly be seen as “related to” the performance of its functions. Consider, for example, something as basic as NAFO’s contracts with its suppliers. Surely, they would be “related to” NAFO’s functions. Does that mean NAFO could refuse payment with immunity? I would think not. If it could, NAFO would certainly have a great deal of difficulty carrying on business with anyone. In short, the provision says “required” and even considering customary international law at its highest, I could not envisage such a broad

interpretation. [ 30 ] In fact, even sovereign states have no immunity from suits involving their commercial activities. They are, by statute, specifically excepted. See: State Immunity Act , R.S.C., 1985, c.

S-18, s. 5 : 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. [ 31 ] Surely, in this context, international organizations cannot be seen to be on a higher footing than sovereign states. [ 32 ] That said, in rejecting Professor Morgan’s thesis, the judge seems to have defaulted to the opposite end of the spectrum whereby immunity would be available only if the proposed suit would threaten NAFO’s operations.

In my view, such an approach would be equally impractical and would render s. 3(1) far more restrictive than intended. [ 33 ] Here, NAFO cites an apt example. It involves its officials and their right to import personal belongings duty free; a right that no one would seriously challenge. Yet according to this

interpretation, that right would appear illusory. NAFO explains it this way in its factum: ¶5The

section of the NAFO Immunity Order granting immunity must be read in the context of the NAFO Immunity Order as a whole. For example, section 3(3) of the NAFO Immunity Order says that: ... all officials of the Organization shall have in Canada, to such extent as may be required for the performance of their functions , the privileges and immunities set forth in

Article V of the Convention for Officials of the United Nations.

Section 18(

g) of

Article V of the UN Convention provides that NAFO officials "have the right to import free of duty their furniture and effects at the time of first taking up their post in question”. It is respectfully submitted that a NAFO official could never show that immunity from import duties on furniture is necessary or essential to perform his functions. If s. 3(3) of the NAFO Immunity Order, which contains the same words as s. 3(1), was interpreted in the restrictive manner employed by the Learned Hearing Judge, NAFO Officials would never be immune from importation duties on furniture. If accepted, the Learned Hearing Judge's

interpretation of the word ''required'' in the NAFO Immunity Order would render Parliament's grant of immunity meaningless. [ 34 ] Therefore, in my respectful view, pragmatism prescribes an

interpretation of s. 3(1) which would place immunity somewhere between these two divergent views. [ 35 ] In this regard, the Supreme Court of Canada offers helpful guidance. In Canada (House of Commons) v. Vaid, 2005 SCC 30 , 1 S.C.R. 667, a chauffeur for the Speaker of the House of Commons claimed to have been constructively dismissed as a result of

discrimination. He sought to invoke Canada’s statutory human rights protections. The Speaker, on the other hand, claimed immunity flowing from parliamentary privilege. [ 36 ] Binnie, J. for the Court confirmed that parliamentary privilege and its corresponding immunity were rooted in the concept of necessity , i.e., immunity should be available only to the extent that it is necessary for the proper functioning of Parliament.

Otherwise, the common law right to sue should prevail: ¶29 While there are some significant differences between privilege at the federal level, for which specific provision is made in s. 18 of the Constitution Act, 1867 , and privilege at the provincial level, which has a different constitutional underpinning, many of the relevant issues concerning privilege were resolved in New Brunswick Broadcasting and earlier cases, and there is no need to repeat the analysis here.

For present purposes, it is sufficient to state a number of propositions that are now accepted both by the courts and by the parliamentary experts. ... 4.Parliamentary privilege includes ... the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces ... in order for these legislators to do their legislative work . [Emphasis added.] (J. P. J. Maingot, Parliamentary Privilege in Canada (2nd ed. 1997), at p.12; New Brunswick Broadcasting , at p. 341; see Fielding v. Thomas , [1896] A.C. 600 (P.C.), at pp. 610-11 ; Kielley v.

Carson (1842), 4 Moo. P.C. 63, 13 E.R. 225, at pp. 235-36 .) The idea of necessity is thus linked to the autonomy required by legislative assemblies and their members to do their job. 5.The historical foundation of every privilege of Parliament is necessity.

If a sphere of the legislative body's activity could be left to be dealt with under the ordinary law of the land without interfering with the assembly's ability to fulfill its constitutional functions, then immunity would be unnecessary and the claimed privilege would not exist ( Beauchesne's Rules & Forms , at p. 11; Maingot, at p. 12; Erskine May , at p. 75; Stockdale v. Hansard , at p. 1169; New Brunswick Broadcasting , at pp. 343 and 382.) [ 37 ] Therefore, it all comes to preserving Parliament’s autonomy to function properly: ¶46 All of these sources point in the direction of a similar conclusion.

In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly's work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency. [ 38 ] In my view, it is appropriate to apply this same rationale here.

For example, while parliamentary immunity exists to preserve that body’s autonomy as a legislative and deliberative body, NAFO’s immunity exists to preserve its autonomy as an international organization composed of many diverse nations. In other words, NAFO’s immunity order is the Canadian Government’s recognition that its autonomy must also be preserved.

In fact, s. 31(1) ’s language - “as may be required [necessary] for the performance of its functions” - is very similar to the language employed by Binnie, J. in describing the rationale for parliamentary immunity. [ 39 ] Note then Binnie, J.’s approach to the concept of necessity in this context. He calls for a broad

interpretation. ¶297."Necessity" in this context is to be read broadly. The time-honoured test, derived from the law and custom of Parliament at Westminster, is what "the dignity and efficiency of the House" require: If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body. [Emphasis added.]

( New Brunswick Broadcasting, at p. 383) (In my view, the references to "dignity" and "efficiency" are also linked to autonomy. A legislative assembly without control over its own procedure would, said Lord Ellenborough C.J. almost two centuries ago, "sink into utter contempt and inefficiency" ( Burdett v. Abbott (1811), 14 East 1, 104 E.R. 501, at p. 559) . "Inefficiency" would result from the delay and uncertainty would inevitably accompany external intervention.

Autonomy is therefore not conferred on Parliamentarians merely as a sign of respect but because such autonomy from outsiders is necessary to enable Parliament and its members to get their job done.) . . . 9.Proof of necessity is required only to establish the existence and scope of a category of privilege. Once the category (or sphere of activity) is established, it is for Parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate.

In other words, within categories of privilege, Parliament is the judge of the occasion and manner of its exercise and such exercise is not reviewable by the courts: "Each specific instance of the exercise of a privilege need not be shown to be necessary" ( New Brunswick Broadcasting , p. 343 (emphasis added)). [ 40 ] Even more relevant to our case, Binnie, J. also considered the significance of the employee’s work to be a relevant factor when determining the breadth of immunity.

Specifically, the closer the work comes to Parliament’s core operation, the stronger the potential for immunity: ¶47 The distinction between defining the scope of a privilege, which is the function of the courts, and judging the appropriateness of its exercise, which is a matter for the legislative assembly, may sometimes be difficult to draw in practice, but can nevertheless, be illustrated on the facts of this case. The appellants claim privilege in respect of relations with all employees.

If the claim of privilege were justified, no court or body external to the House of Commons could enquire into the appellant Speaker's reasons for the constructive dismissal of the respondent Vaid. Such outside bodies would have no jurisdiction to do so. Nevertheless the courts are required to determine the scope of the privilege claimed. In this case, the inquiry is directed to whether the privilege extends to dealings with all categories of employees or just those categories of employees whose work is connected with the legislative and deliberative functions of the House.

More specifically, the issue is whether the privilege extends to the ranks of service employees (such as catering staff) who support MPs in a general way, but play no role in the discharge of their constitutional functions. [ 41 ] Applying this logic to our case, it is noteworthy that Mr. Amaratunga was a high level employee playing an integral role in NAFO’s operations. I will address this in more detail when I consider the second issue. [ 42 ] In

summary, therefore, although Vaid dealt with parliamentary immunity (as opposed to international organization immunity), I can nonetheless draw several guiding parallels. Firstly, immunity is rooted in “necessity” and we should take a broad view of that concept. Secondly, what is to be judged as “necessary” is the preservation of the organization’s autonomy to carry out its functions.

Thirdly, in the employment context, the closer an aggrieved employee’s tasks come to the organization’s core function, the more likely its autonomy will be affected and, therefore, the greater likelihood that immunity will be required. [ 43 ] With this guidance, I am persuaded to give s. 3(1) a broader application than that proposed by the motions judge. In other words, it must cover more than suits that are “significantly impeding”, “impermissible intrusion[s]” or “excessive interference[s]” with NAFO’s operations.

These are concepts which, in my respectful view, come very close to saying that unless the law suit threatens to put NAFO out of business, immunity will be denied. [ 44 ] Instead, guided by Vaid , I would focus on NAFO’s need as an international organization, to operate autonomously. After all, NAFO represents many countries each with its own unique domestic law. It should not get caught in the net of Canadian/Nova Scotia domestic law simply because it chose to set up shop here. Therefore, I would declare immunity from any domestic suit that stands to interfere with NAFO’s autonomy in performing its functions.

In other words, simple interference would suffice. I would not require “significant”, “excessive” or “impermissible” interference.

[ 45 ] Therefore, in my respectful view, the judge erred in his

interpretation of s. 3(1) . This takes me to the next (and ultimate) question: Is immunity required in this case? Is Immunity “ Required ” in this Case? [ 46 ] The fact that I would take a broader view of s. 3(1) does not mean that immunity is automatically “required” in this case. Instead, applying my proposed broader standard, we must consider whether immunity ought to have been declared in this matter, i.e., whether, on these facts, this law suit interferes with NAFO’s autonomy in performing its functions. [ 47 ] In the process, I will still defer to the judge’s factual conclusions.

In other words, I will accept his facts, unless they reflect palpable and overriding error. [ 48 ] In this regard, NAFO asserts two such errors. The first requires some background. It involves the fact that, as noted, there is no statutory “commercial activity” exception to NAFO’s immunity as would be the case with sovereign states under the State Immunity Act , supra . Thus, NAFO has developed this creative theory.

Parliament presumably being aware of jurisprudence that confirms employment contracts as “commercial activities” and, not having enacted a “commercial activity” exception for NAFO, it therefore purposely intended to grant NAFO immunity to employment related suits such as this. [ 49 ] With this backdrop, NAFO objects to this statement volunteered by the judge: “International organizations typically are regulatory and/or research bodies which don’t normally engage in commercial activities to any material extent.” This says NAFO is simply not the case.

Thus, in its factum, it cautions: ¶25The Learned Hearing Judge reasoned that the NAFO Immunity Order had to be interpreted in accordance with the general principles of statutory

interpretation. ¶26NAFO submitted that the absence of a commercial activity exception in FMIOA was significant and demonstrated that Parliament did not intend to subject international organization immunity to a commercial activity exception.

The Learned Hearing Judge dismissed the submission on the basis of a factual finding that was not supported by the evidence: As a brief aside , counsel for NAFO argues that had Parliament intended to further limit the grant of immunity, it could have added the commercial activity exemption with respect to international organizations as exists for foreign states under the State Immunity Act .

I do not consider that to be of any significance, however, because international organizations typically are regulatory and/or research bodies which don't normally engage in commercial activities to any material extent . [Emphasis added] ¶27NAFO respectfully submits that this conclusion not only lacks an evidentiary basis, but is also contrary to a common sense observation that in order for international organizations to operate in the modern world, they would have to engage in numerous commercial relationships.

This error of fact impacted the final result as it was the only basis upon which the Learned Hearing Judge dismissed NAFO's commercial activity exception submission. [ 50 ] Although NAFO raises an interesting submission here, in the end, I am not at all troubled by the judge’s comment. If it represents a factual error, it would be a very subtle one and certainly not one that would be “palpable” as required. Furthermore, it would be hardly “overriding” considering the fact that the judge billed this reference as a “brief aside”.

Finally, I do not necessarily accept NAFO’s creative proposition that Parliament intended to grant NAFO immunity in all employment related matters. That, in my view, might be a bit of a stretch. For all these reasons, I would not disturb this aspect of the decision. [ 51 ] NAFO’s second complaint, however, causes me some concern. It involves the judge’s apparent conclusion that NAFO did not challenge the merits of Mr. Amaratunga’s case. Specifically, relying only on NAFO’s written defence, which was based exclusively on the immunity claim, the judge concluded - “just cause is not asserted by NAFO”.

[ 52 ] However, in the context of the entire record, this statement is, in my respectful view, incorrect. Specifically, it is clear that NAFO restricted its filed defence to the immunity argument in order to avoid attorning to the jurisdiction of the Supreme Court of Nova Scotia. However, elsewhere in the record it is clear that NAFO did in fact assert just cause. For example, Mr.

Amaratunga’s statement of claim acknowledges as much: ¶42One of the envelopes given to Tissa Amaratunga contained a letter advising Tissa Amaratunga that NAFO “had cause to terminate [Tissa Amaratunga’s] employment”, such employment would actually continue to 31 July 2006, but that Tissa Amaratunga was not “expected or permitted to perform any more work for NAFO during the salary continuance period”. ... [ 53 ] Furthermore, the June 24, 2005 letter from his superior (referred to in this passage) was exhibited before the judge during Professor Morgan’s cross examination.

It elaborates on NAFO’s alleged just cause: I have been dissatisfied with your service and you have failed to comply with the duties and obligations set out in the Staff Rules. I have expressed my dissatisfaction to you both verbally and in writing since June 2004. NAFO takes the position that it had cause to terminate your appointment. ... [Emphasis added.] [ 54 ] As well, this error is significant because the judge relied on it in his assessment of whether immunity was required.

In other words, because just cause was not alleged, the judge viewed the suit as less complicated and therefore less of an intrusion into NAFO’s operations. For example, here is the full passage demonstrating this context: ¶69 In the present case, there is very little factual evidence to sustain the argument that it would be an impermissible intrusion into NAFO's internal management for the court to take jurisdiction.

One must also keep in mind, as recited earlier from Professor Saunders' report, that employment cases are not a single unitary category and that jurisdiction can be asserted for some aspects of an employment dispute while other aspects ought to be subject to immunity. In the present case the following features are of note: 1.We are here dealing with a private contract of employment voluntarily entered into by NAFO; 2. The claims of the plaintiff are limited to monetary damages for breach of that contract.

Just cause is not asserted by NAFO ; 3.The plaintiff does not claim any right to interfere with the internal organization, management or governance of NAFO; 4.The plaintiff does not seek to subject NAFO to Canadian legislation, employment related or otherwise.

The plaintiff relies on his common-law rights for breach of an employment contract; 5.There are no sovereign, political or security elements present in this case. [ 55 ] Therefore, this, in my respectful view, represents a palpable and overriding error of fact that must be corrected. [ 56 ] Furthermore, in addition to this factual error, I would respectfully take issue with the judge’s overall characterization of this suit. I will elaborate.

[ 57 ] As noted in the above passage, the judge cites certain criteria that serve to minimize the suit’s impact on NAFO’s operations. However, I view this claim as a much more significant encroachment. Granted, we are dealing with a private employment contract and the claim is limited to common law rights. However, in my view, wrongful dismissal actions by their very nature represent critical exposés of the employer/employee relationship. Furthermore, in this case we are dealing with a key senior employee with over 15 years experience. NAFO in its factum accurately highlights this: ¶52As is evident by Dr.

Fischer's and Mr. Amaratunga's affidavits, Mr. Amaratunga had a close and direct connection to NAFO's function in the following respects: -Mr. Amaratunga was the Executive Secretary's Deputy; -In Mr.

Amaratunga's own words his position ''was a senior management and only professional category position in the Secretariat of NAFO... [his authority] included the direct supervision of four of the total of eleven staff members of the Secretariat who were subordinate to the Executive Secretary and Assistant Executive Secretary, and frequent supervision of the three other staff members who provided services with respect to publications of NAFO." -Mr. Amaratunga was a permanent Secretary and the Rapporteur for the Scientific Council.

This meant that he was responsible for taking minutes and describing the views expressed at the meetings and, most importantly, in the event there were conflicting views, he would have to fairly and accurately describe the conflicting views. -Science and, therefore, the Scientific Council, plays a central role in NAFO's performance of its function. The science component of NAFO is an integral part of NAFO and its management and conservation measures are based upon scientific advice which is collected in the course of the Scientific Council's performance of its mandate. -Mr.

Amaratunga attended numerous international workshops, meetings and sessions in a representative capacity as Deputy Executive Secretary and Assistant Executive Secretary. [ 58 ] Therefore, in my view, this suit would inevitably put NAFO’s core operations under a microscope. This is especially so when one considers Mr. Amaratunga’s claim for punitive damages. This claim by its very nature is designed to focus on NAFO’s alleged misconduct. Furthermore, Mr.

Amaratunga’s claim for solicitor-client costs is exceptional and would as well be based on NAFO’s alleged misconduct. [ 59 ] Consider as well the following extracts from Mr. Amaratunga’s statement of claim all of which target NAFO’s alleged misconduct and mismanagement: ¶17After commencement of the term of Dr. Fischer as Executive Secretary, Dr.

Fischer engaged in conduct with respect to the supervision of Tissa Amaratunga which was contrary to sound management practice and which resulted in embarrassment to him, and confusion and impairment of efficiency and effectiveness in the discharge of the mandate of Secretariat.

Such conduct included, but was not limited to, reversal of decisions made by Tissa Amaratunga within the scope of his authority and after consultations involving him, staff of the Secretariat and members of the other constituent bodies of NAFO, and the countermanding of management directions given by Tissa Amaratunga to staff of the Secretariat under his supervision, particularly the countermanding of such directions without notice to, or the advice of, Tissa Amaratunga. . . . ¶56The Plaintiff Tissa Amaratunga states that the Executive Secretary, for purposes and with motivations in the peculiar knowledge of that individual, engaged in improper management practices directed against Tissa Amaratunga, such that a reasonable person in the position of Tissa Amaratunga would find attendance at work and the performance of the duties of Deputy Executive Secretary intolerable, namely, the Executive Secretary:

1.substantially reduced the authority and function of Tissa Amaratunga, contrary to the mandate upon which Tissa Amaratunga wasappointed as Assistant Executive Secretary; 2.placed Tissa Amaratunga in a discussion with a senior official of NAFO which was conflictive and in which Tissa Amaratunga waslikely to be called upon for opinion or comment on the issue under discussion between such official and the Executive Secretary; 3.failed to provide timely, periodic, fair, or any documented evaluations of the work performance of Tissa Amaratunga or process forsuch evaluation from the time of appointment to NAFO of Dr Fischer as Executive Secretary, to the time of dismissal from service ofTissa Amaratunga; 4.passed direction to Tissa Amaratunga through subordinate staff of the Secretariat in the format of suggestion or request to take softwaretraining, and then held Tissa Amaratunga accountable for non-registration in course, as if Tissa Amaratunga was in defiance of a directinstruction from the Executive Secretary; 5.placed Tissa Amaratunga in jeopardy of immediate termination of employment for failure to create the database which was to be an“internal” project of the Secretariat without providing Tissa Amaratunga with reasonable, proper or adequate direction as to the form,scope, purpose and function of such database, or the level of commitment of resources of the Secretariat to achieve the commissioningsuch database; and, 6.communicated insulting, and demeaning comments to Tissa Amaratunga concerning the intelligence, personality, integrity andprofessional competence of Tissa Amaratunga; [60] In short, Mr.

Amaratunga, in the course of adjudicating his wrongful dismissal claim, asks the Supreme Court of Nova Scotiato condemn NAFO’s management structure. In my view, this represents interference with NAFO’s autonomy. [61] Nor, in my view, would it be enough to suggest that Mr. Amaratunga is simply asking the court to consider how NAFOhandled itself in the past (as opposed to purportedly representing a directive as to how it should manage itself in the future). That wouldoversimplify matters. After all, any organization criticized by a court (as Mr.

Amaratunga requests) would be expected to change itswayward ways in response. Consider again the punitive damage claim. Its very purpose is to ask the court to denounce NAFO’s conductin order to deter it and similar employers from acting in a similar fashion in the future. [62] Here, as well, we can be guided by the Supreme Court of Canada, albeit in the context of sovereign state immunity. In ReCanada Labour Code, (SCC), [1992] 2 S.C.R. 50, the union representing civilians working at a United States navalbase in Newfoundland sought certification before the Canada Labour Relations Board.

The U.S. claimed immunity because forcing itinto the Canadian collective bargaining regime would interfere with its autonomy as a sovereign state. The union countered by assertingthat such employment contracts represented “commercial activities” and were thereby exempted from immunity by virtue of s. 5 of theState Immunity Act, supra (repeated for ease of reference): 5.A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreignstate. [63] Therefore, this case addresses the same basic question.

Would the proposed suit interfere with the subject body’s autonomy (inmanaging its operations)? [64] Interestingly, the Court noted that the typical employment relationship represented a spectrum of activities from those thatwere purely “commercial” on one end and those purely “sovereign” at the other. The impugned court’s task, therefore, was to firstdetermine the various employment activities targeted by the proposed suit and then to determine the suit’s general impact on thesovereign state’s autonomy (pp. 76-77):

In determining the nature of the activity in question, it is useful to begin by acknowledging that employment at a military base is a multi-faceted relationship. It is simply not valid to isolate one aspect of this activity and label it as either "sovereign" or "commercial" in nature. A better approach is to determine which aspects of the activity are relevant to the proceedings in issue, and then to assess the impact of the proceedings on these attributes as a whole. . . . One aspect of employment at the base is this bare contract of service entered into by each employee.

This aspect carries with it a range of rights and obligations that normally attach to such a contract. For the employee, these include the right to be paid, the right not to be wrongfully terminated, etc. Obligations of the employee include diligence, obedience and honesty. These attributes of the employment relationship will fall at various points along a spectrum between purely "sovereign" and "commercial" activities. For example, the right to be paid is for the most part a commercial aspect of the employment relationship.

On the other hand, the right to dismiss an employee without notice for security reasons is a sovereign attribute of the relationship. Another aspect of the employment relationship is the structuring of work at the base. This entails decisions about what work will be done, when and by whom. Traditionally, decisions regarding this aspect of employment are reserved for management - in this case, the base commander.

This aspect of the employment relationship will, in most instances, be "sovereign" in character since it goes to the heart of the operation of the base. [ 65 ] In other words, while Canadian employees can turn to domestic courts for the basic right to receive a salary, they may not be able to advance a wrongful dismissal suit if, for example it would threaten national security (pp. 79-80): 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. [ 66 ] Therefore, citing cases from other jurisdictions, the Court suggests that the closer the suit resembles an inquiry into the state’s activities, the greater the need for immunity (pp. 83-84): Case law in other jurisdictions has recognized an immunity for foreign instrumentalities from domestic labour relations tribunals. In Libyan Arab Jamahiriya v. Trobbiani (1990), 73 Riv. Dir. Int. 402 (Italy), the Supreme Court of Cassation in Italy refused to consider a Libyan embassy employee's claim for transfer to a higher wage classification within the embassy.

Had the claim related solely to unpaid wages, the court conceded that it would have had jurisdiction. However, the court declined jurisdiction because the claim required an inquiry into the organizational activities of the foreign embassy. A similar case is Italian Trade Union for Embassy and Consular Staff v. United States (1981), 65 I.L.R. 338 (Italy) , in which the Examining Magistrate of Milan considered a claim of anti-union activity brought against an American consulate.

The court noted its reasons as follows, at pp. 342-43: In order to protect these interests effectively, the judge is called upon to interfere considerably in all the various powers of the employer (organizational, managerial and disciplinary powers, etc.) and impart direct "orders" to put an end to the offending behaviour and to rectify the situation and he has to apply repressive measures which do not only affect this or that relationship of employment but also impinge upon the employer's prerogatives in their entirety.

Now it is obvious that if a Court were to interfere in the organizational power of a foreign State (for example in its power to organize Consular offices) it would upset a whole set of acts performed iure imperii .

In particular should a Court order a foreign State -- as has been requested in the case at hand -- to modify preordained procedures for the employment of staff (even of persons employed in an administrative or clerical capacity) to suppress those aspects considered harmful to the collective interests of the trade union, then the Court would undoubtedly infringe upon the State's power to organize its own offices and act iure imperii .

In such a case the Court's decision would amount to a judicial interference that it is not allowed even vis-à-vis the Italian public administration (...), thereby violating the principle of good faith. [ 67 ] In addition to the Canada Labour Code case, the Québec Superior Court decision in Trempe v. Assoc. du personnel de l ’OACI , 2003 Carswell Que 2804 (S.C.) also offers guidance. There, the International Civil Aviation Association, headquartered in Montreal, was sued domestically by an aggrieved employee.

The Association enjoyed the same immunity “as is enjoyed by sovereign states”. [ 68 ] Relying on the Supreme Court of Canada decision of Miller v. Canada , 2001 SCC 12 , 1 S.C.R. 407, the Quebec Superior Court concluded that it had no jurisdiction. Interestingly, in that case, the plaintiff was a lower level clerical employee. Nonetheless Tellier, J. reasoned: ¶77... In short, the Applicant says that he was unfairly dismissed by ICAO. He exercised the right which he thought he had, pursuant to the internal regulations of an organization which enjoys immunity under Canadian law, to appeal.

He accepted the authority of this means of settlement. The appeal did not have the result he had hoped for. This Court has no authority to consider appeals regarding these issues. ¶78Both parties submitted extensive documentation on the matters raised for purposes of consideration of these two requests. The Court looked at it but does not feel there is any need to refer to it in extenso. It will merely cite the following. ¶79In the case Miller v. Canada , Judge Bastarache of the Supreme Court of Canada wrote on page 425: The majority judges considered the argument carefully.

The Appellant did not institute proceedings against ICAO in the Supreme Court. It is clear from the Headquarters Agreement, the ICAO staff rules, the Service Code and the previous judgements that, had he done so, his case would have been rejected . ICAO has complete immunity from prosecution under the international agreements it has signed with Canada , thus complaints must be filed in accordance with the administrative procedures set forth in the Service Code and staff rules . In fact, Miller did file a claim against ICAO in accordance with the administrative procedures.

He waited six years and at the time the appeal was heard he was still waiting for a decision. This action on the other hand has been instituted against third parties who, according to him, are responsible for his health problems. (Emphasis added by the Court) [Emphasis by Tellier, J.] [ 69 ] This conclusion was upheld by the Québec Court of Appeal. See: Trempe v. Assoc. du personnel de l ’OACI , 2005 Carswell Que 9802 ; 2005 QCCA 1031 . [ 70 ] With this guidance, consider again the context we face. Unlike the clerical worker in Trempe , we have a 15 year senior management employee taking action.

He is a key member of a relatively small staff that does important work. He is seeking exceptional relief in the form of punitive damages and solicitor-client costs. In my respectful view, the conclusion appears inevitable - this action would indeed interfere with NAFO’s operations. Section 3(1) applies to this case. As such, NAFO’s immunity must be declared. [ 71 ] In reaching this conclusion, I am well aware that Mr. Amaratunga will be left without an enforceable remedy.

The motions judge was quite properly concerned: ¶71 This conclusion is reinforced by another compelling argument made by the plaintiff, supported by the opinion of Professor Saunders. It is pointed out that if this court lacks jurisdiction to adjudicate this dispute, the plaintiff is left with no recourse to pursue his claim in any other forum whatsoever. NAFO acknowledges this to be the situation but counsel refers to it as a regrettable result, tracking the language of the Supreme Court in Re Canada Labour Code .

As rightly pointed out, the existence of a mechanism for alternate dispute resolution is not a prerequisite for a claim of immunity by an international organization.

[72] The judge also quite properly acknowledged that Canada’s international treaty obligations in this regard should inform therequisite analysis: ¶72 That is not to say, however, that the absence of a forum for dispute resolution is a completely irrelevant factor. Professor Saunders,in his report, acknowledges that the smooth functioning of international organizations is a legitimate policy objective but goes on to saythat this must be counterbalanced by other concerns and obligations binding on Canada.

He then makes reference to the ICCPR whichconfers on all persons, whether in a criminal or civil case, the entitlement to a fair and public hearing of a competent, independent andimpartial tribunal established by law.

While Professor Saunders recognizes that this entitlement is not absolute, he expresses the viewthat this obligation is one that can and should be taken into account in determining whether it is "required" for the performance ofNAFO's functions that an employee be denied the most basic of rights enshrined in that document. ¶73 Professor Morgan noted in his cross-examination that ICCPR has never been enacted as legislation in Canada and therefore doesnot confer a cause of action or afford judicial remedies thereunder.

He conceded, however, that even though not enacted, ICCPR can beused as an interpretative guide so that Canada is not in violation of its obligations under various treaties. ¶74 Indeed, that conforms with a well-known principle of statutory

interpretation which the Supreme Court of Canada had occasion todeal with in Baker v. Canada (Minister of Citizenship and Immigration) (SCC), [1999] 2 S.C.R. 817. There the courtstated as follows (at paras. 69-70): I agree with the respondent and the Court of Appeal that the Convention has not been implemented by parliament. Its provisions havetherefore no direct application within Canadian law. Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory

interpretationand judicial review. As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330: [T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. Theseconstitute part of the legal context in which legislation is enacted and read. In so far as possible, therefore,

interpretations that reflectthese values and principles are preferred. ¶75 It is safe to say that it is a principle of both domestic common law and international law that an aggrieved person with a legitimateclaim is entitled to a fair hearing before a competent, independent and impartial tribunal established by law. It would require a clearlegislative intent to adopt an

interpretation of the NAFO Immunity Order that would be inconsistent with such a basic right as enshrinedin the ICCPR. ¶76 There is no such clear legislative intent in the present case. The court should therefore adopt an

interpretation of the NAFOImmunity Order that is consistent with Canada's obligations under international treaties and which reflect values enshrined ininternational law. [Emphasis by Wright, J.] [73] However, it is one thing to interpret legislation in a manner that reflects the values and principles of international treaties. It isquite another to deny immunity in circumstances where, by legislation, it clearly exists. [74] Therefore, one of the unfortunate consequences of immunity can be the absence of a legally enforceable remedy. That has beenrecognized by our courts on many occasions.

See: Re Canada Labour Code, supra at 91; Canada (House of Commons) v. Vaid,supra at para. 30; Trempe c. Assoc. du personnel de l’OACI, supra at para. 76 ; Bouzari v. Iran (2003), (ON CA),71 O.R. (3d) 675, 243 D.L.R. (4th) 406 (C.A.) at para. 102; and Arar v. Syria (Arab Republic) (2005), (ON SC), 28C.R. (6th) 187, 127 C.R.R. (2d) 252 (Ont. S.C.J.) at paras. 24-34. Hopefully, however, that will not translate into no remedy at all. Afterall, if such international organizations are to attract domestic employees, they must earn a reputation of treating their employees fairly.NAFO would be no exception.

Therefore, while I make no comment on the merits of this claim, I do note that initial offers have beenmade. I therefore trust that we will see a fair settlement.

DISPOSITION [ 75 ] I would allow the appeal and declare that the Supreme Court of Nova Scotia has no jurisdiction to adjudicate this matter. I would vitiate all orders for costs issued below and have tho se same amounts payable instead by the respondent to the appellant. The appellant shall also receive its costs on appeal, representing 40% of the amount ordered below together with all of its reasonable disbursements to be taxed. MacDonald, C.J.N.S. Concurred in: Beveridge, J.A. Bryson, J.A.