Amaratunga v. Northwest Atlantic Fisheries Organization, (2013) 338 N.S.R.(2d) 360 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 28, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 338 N.S.R.(2d) 360 (SCC);2013 SCC 66

Amaratunga v. Northwest Atlantic Fisheries (2013), 338 N.S.R.(2d) 360 (SCC);

    1071 A.P.R. 360

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2013] N.S.R.(2d) TBEd. NO.064

Tissa Amaratunga (appellant) v. Northwest Atlantic Fisheries Organization, a body corporate (respondent) and Canadian Civil Liberties Association (intervener)

(34501; 2013 SCC 66; 2013 CSC 66)

Indexed As: Amaratunga v. Northwest Atlantic Fisheries Organization

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

November 29, 2013.

Summary:

Amaratunga sued his former employer, the Northwest Atlantic Fisheries Organization (NAFO), an international organization headquartered in Nova Scotia, for breach of his contract of employment and for breach of the contract under which NAFO was required in accordance with the NAFO Staff Rules to pay a separation indemnity payment. NAFO claimed that it enjoyed immunity from the lawsuit under the Northwest Atlantic Fisheries Organization Privileges and Immunities Order, SOR/80-64 (NAFO Immunity Order), and moved for a determination.

The Nova Scotia Supreme Court, in a decision reported at [2009] N.S.R.(2d) Uned. 153, held that the issue of law should go forward and be determined as a single issue by a judge.

The Nova Scotia Supreme Court, in a decision reported at (2010) 295 N.S.R.(2d) 331; 935 A.P.R 331, determined that immunity was not "required", as used in the phrase "to such extent as may be required for the performance of its functions" in s. 3(1) of the NAFO Immunity Order. NAFO appealed.

The Nova Scotia Court of Appeal, in a decision reported at (2011), 306 N.S.R.(2d) 380; 968 A.P.R. 380, allowed the appeal. The immunity provided for in s. 3(1) of the NAFO Immunity Order shielded NAFO from all of the claims. Amaratunga appealed.

The Supreme Court of Canada allowed the appeal in part. Pursuant to s. 3(1) of the NAFO Immunity Order, NAFO enjoyed immunity from Amaratunga's claims, except the claim concerning the separation indemnity payment. The matter was remanded to the Nova Scotia Supreme Court for adjudication of the remaining claim.

Civil Rights - Topic 8006

Canadian or provincial bill of rights - Principles of operation and interpretation - Right to fair hearing in accordance with principles of fundamental justice - [See third Practice - Topic 234 ].

International Law - Topic 2211

Sovereignty - Incidents of - Immunity - Application of legislation - [See all Practice - Topic 234 ].

Practice - Topic 234

Persons who can sue and be sued - Agencies of government - Agency created by international treaty - The Northwest Atlantic Fisheries Organization (NAFO), an international organization headquartered in Nova Scotia, sought a determination of its claim that it enjoyed immunity from the plaintiff's lawsuit by virtue of s. 3(1) of the Northwest Atlantic Fisheries Organization Privileges and Immunities Order, SOR/80-64 (NAFO Immunity Order), deemed to have been made under Canada's Foreign Missions and International Organizations Act (FMIOA) - The Supreme Court of Canada interpreted the NAFO Immunity Order in accordance with the modern principle of statutory interpretation - "The words 'to such extent as may be required for the performance of its functions' found in s. 3(1) of the NAFO Immunity Order must therefore be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme and object of the FMIO Act, and in light of the grant of authority and the intention of Parliament" - The court concluded that "the Governor in Council granted NAFO a functional immunity, that is, the immunity required to enable NAFO to perform its functions without undue interference. ... What is necessary for the performance of NAFO's functions, or what constitutes undue interference, must be determined on a case-by-case basis." - See paragraphs 37 to 53.

Practice - Topic 234

Persons who can sue and be sued - Agencies of government - Agency created by international treaty - The plaintiff sued his former employer, the Northwest Atlantic Fisheries Organization (NAFO), an international organization, for wrongful dismissal - The main issue was whether the immunity granted to NAFO in s. 3(1) of the Northwest Atlantic Fisheries Organization Privileges and Immunities Order, SOR/80-64 (the Immunity Order), applied - The Supreme Court of Canada concluded that, in this case, immunity from the plaintiff's claims was "required" in order for NAFO to perform its functions - The plaintiff was the Deputy Executive Secretary of NAFO, the second-in-command of the Secretariat - He directly supervised other staff and was responsible for the scientific aspect of NAFO's mission - "That alone would be sufficient to conclude that immunity is required in this case in order for NAFO to perform its functions. NAFO must have the power to manage its employees, especially those in senior positions, if it is to perform its functions efficiently. To allow employment-related claims of senior officials to proceed in Canadian courts would constitute undue interference with NAFO's autonomy in performing its functions and would amount to submitting its managerial operations to the oversight of its host state's institutions." - See paragraphs 54 to 58.

Practice - Topic 234

Persons who can sue and be sued - Agencies of government - Agency created by international treaty - The plaintiff sued Northwest Atlantic Fisheries Organization (NAFO), an international organization headquartered in Nova Scotia, for wrongful dismissal, in the Nova Scotia Supreme Court - NAFO claimed immunity from the action - The Nova Scotia Court of Appeal held that NAFO was entitled to immunity by virtue of s. 3(1) of the Northwest Atlantic Fisheries Organization Privileges and Immunities Order, SOR/80-64 - The plaintiff appealed - The Supreme Court of Canada concluded that NAFO was entitled to immunity and addressed the plaintiff's "denial of justice" argument - "The absence of a dispute resolution mechanism or of an internal review process is not, in and of itself, determinative of whether NAFO is entitled to immunity. ... [A]n employment relationship must be considered as a whole and in light of its context. ... As for the Canadian Bill of Rights, the 'right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations' recognized in s. 2(e) does not create a substantive right to make a claim. Rather, it provides for a fair hearing if and when a hearing is held. ... The same holds true for the appellant's argument based on art. 14 of the ICCPR [International Covenant on Civil and Political Rights] ... The fact that the appellant has no forum in which to air his grievances and seek a remedy is unfortunate. However, it is the nature of an immunity to shield certain matters from the jurisdiction of the host state's courts." - See paragraphs 59 to 63.

Practice - Topic 234

Persons who can sue and be sued - Agencies of government - Agency created by international treaty - The plaintiff sued Northwest Atlantic Fisheries Organization (NAFO), an international organization headquartered in Nova Scotia - He sought damages for wrongful dismissal and for breach of the contract under which NAFO was required to pay the balance of the separation indemnity granted in accordance with the NAFO Staff Rules - The Nova Scotia Court of Appeal held that NAFO was entitled to immunity from all the claims, by virtue of s. 3(1) of the Northwest Atlantic Fisheries Organization Privileges and Immunities Order, SOR/80-64 - The plaintiff appealed - The Supreme Court of Canada concluded that NAFO was entitled to immunity, with the exception of the claim concerning the separation indemnity payment - First, the claim related solely to rule 10.4 of the NAFO Staff Rules - The enforcement of rule 10.4 would not amount to submitting NAFO's managerial operations to the oversight of Canadian courts - The separation indemnity claim would in no way interfere with NAFO's performance of its functions - Second, NAFO conceded that the Immunity Order did not immunize NAFO from a lawsuit that only sought payment of entitlements under the NAFO Staff Rules - See paragraphs 64 to 67.

Statutes - Topic 2603

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from whole of section or statute - [See first Practice - Topic 234 ].

Statutes - Topic 5516

Operation and effect - Delegated legislation - Orders-in-council - Interpretation - Consistent with empowering statute - [See first Practice - Topic 234 ].

Statutes - Topic 9403

Treaty, convention and protocol - Implementation legislation - General principles - Interpretation - [See first Practice - Topic 234 ].

Torts - Topic 6821

Defences - Statutory compliance, authority or immunity - Statutory authority or immunity - [See all Practice - Topic 234 ].

Words and Phrases

Required - The Supreme Court of Canada determined the meaning of the word "required" as used in the phrase "to such extent as may be required for the performance of its functions" in s. 3(1) of the Northwest Atlantic Fisheries Organization Privileges and Immunities Order, SOR/80-64, deemed to have been made under the Foreign Missions and International Organizations Act, S.C. 1991, c. 41 - See paragraphs 35 to 53.

Cases Noticed:

House of Commons et al. v. Vaid et al., [2005] 1 S.C.R. 667; 333 N.R. 314; 2005 SCC 30, consd. [para. 18].

Kuwait Airways Corp. v. Iraq (Republic) et al., [2010] 2 S.C.R. 571; 407 N.R. 145; 2010 SCC 40, refd to. [para. 28].

Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217; 341 N.R. 1; 204 O.A.C. 311; 2005 SCC 63, refd to. [para. 36].

Glykis v. Hydro-Québec, [2004] 3 S.C.R. 285; 325 N.R. 369; 2004 SCC 60, refd to. [para. 36].

Bristol-Myers Squibb Co. et al. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 533; 334 N.R. 55; 2005 SCC 26, refd to. [para. 36].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 37].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 37].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 38].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 38].

Reference Re Canada Labour Code and State Immunity Act (Can.), [1992] 2 S.C.R. 50; 137 N.R. 81, consd. [para. 56].

Iran (Islamic Republic) v. Hashemi, [2012] R.J.Q. 1567; 2012 QCCA 1449, refd to. [para. 61].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, refd to. [para. 61].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1985, App. III, sect. 2(e) [para. 61].

Convention on Future Multilateral Cooperation in the Northwest Atlantic, 1978, Can. T.S. 1979, No. 11, art. II(1) [para. 3].

Convention on the Privileges and Immunities of the United Nations (1946), 1 U.N.T.S. 15, art. II(2) [para. 34].

Foreign Missions and International Organizations Act, S.C. 1991, c. 41, sect. 5(1)(b) [paras. 33, 46]; sect. 16 [para. 32].

International Covenant on Civil and Political Rights (1966), 999 U.N.T.S. 171, art. 14 [para. 62].

Northwest Atlantic Fisheries Organization Privileges and Immunities Order, SOR/80-64, sect. 3(1) [para. 34]; sect. 3(3) [para. 41].

Authors and Works Noticed:

Berenson, William M., Squaring the Concept of Immunity with the Fundamental Right to a Fair Trial: The Case of the OAS (2012), 3 World Bank L. Rev. 133, generally [para. 45].

Canada, Hansard, House of Commons Debates, vol. 7, 3rd Sess., 34th Parliament (October 4, 1991), pp. 3332 ff. [para. 43].

Currie, John H., Forcese, Craig, and Oosterveld, Valerie, International Law: Doctrine, Practice and Theory (2007), pp. 494 to 501 [para. 28].

Driedger, Elmer A., Construction of Statutes (1974), p. 67 [para. 37].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 247 [para. 36].

Fox, Hazel, The Law of State Immunity (2nd Ed. 2008), pp. 724, 725, 726 [para. 29].

Hansard - see Canada, Hansard, House of Commons Debates.

Preuss, Lawrence, The International Organizations Immunities Act (1946), 40 Am. J. Int. L. 332, p. 345 [para. 45].

Sands, Philippe, and Klein, Pierre, Bowett's Law of International Institutions (6th Ed. 2009), p. 494 [para. 49].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 368 [para. 36].

United Nations, Human Rights Committee, General Comment No. 32, Article 14: Right to Equality Before Courts and Tribunals and to a Fair Trial, U.N. Doc. CCPR/C/GC/32 (August 23, 2007), para. 18 [para. 62].

United Nations, International Law Commission, Jurisdictional immunities of States and their property, in United Nations, Yearbook of the International Law Commission 1980, Report of the Commission to the General Assembly on the work of its thirty-second session (1981), vol. 2, Part 2, p. 137 [para. 27].

United Nations, Yearbook of the International Law Commission 1980, Report of the Commission to the General Assembly on the work of its thirty-second session (1981), vol. 2, Part 2, p. 137 [para. 27].

Counsel:

David A. Copp, for the appellant;

John T. Shanks and Richard Dunlop, for the respondent;

Ewa Krajewska and Heather K. Pessione, for the intervener.

Solicitors of Record:

David A. Copp, Halifax, Nova Scotia, for the appellant;

Stewart McKelvey, Halifax, Nova Scotia, for the respondent;

Borden Ladner Gervais, Toronto, Ontario, for the intervener.

This appeal was heard on March 28, 2013, before McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. In reasons written by LeBel, J., the Court delivered the following judgment, dated November 29, 2013.