United States of America v. Zakhary, 2015 FC 335

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Rennie, J.
• Citation: 2015 FC 335,(2015), 477 F.T.R. 46 (FC)
• Date: 09 December 2014

USA v. Zakhary (2015), 477 F.T.R. 46 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MR.054

United States of America (applicant) v. Nadia Zakhary (respondent)

(T-1147-13; 2015 FC 335)

Indexed As: United States of America v. Zakhary

Federal Court

Rennie, J.

March 17, 2015.

Summary:

Zakhary was terminated from her employment with the United States Consulate in Toronto. She filed an unjust dismissal complaint under the Canada Labour Code. An inspector in the Federal Ministry of Labour sent the complaint to the Consulate via registered mail. The only response to the complaint was an acknowledgment of receipt by a human resources officer with the United States Embassy in Ottawa. An adjudicator was appointed. The United States advised that it was not a party to the case and would take no steps in the proceeding due to the fact that it was not served with the complaint through diplomatic transmittal by the Deputy Minister of Foreign Affairs, as required by s. 9(2) of the State Immunity Act (SIA). The adjudicator concluded that the human resources officer's letter constituted a waiver of immunity under s. 4 of the SIA and, further, that the Consulate's activities were a "commercial activity" and thus exempt from immunity under s. 5 of the SIA. The adjudicator made a finding of unjust dismissal and ordered the United States to reinstate Zakhary to her former position, compensate her for lost pay and benefits, and pay her $5,000 in legal costs. A Certificate of Filing of Order was issued. The United States applied for an order setting aside the Certificate.

The Federal Court allowed the application.

International Law - Topic 250

General - Practice - Service on foreign state or agency of foreign state - Zakhary was terminated from her employment with the United States Consulate in Toronto - She filed an unjust dismissal complaint under the Canada Labour Code - An inspector in the Federal Ministry of Labour sent the complaint to the Consulate via registered mail - An adjudicator was appointed - The United States advised that it was not a party to the case and would take no steps in the proceeding due to the fact that it was not served with the complaint through diplomatic transmittal by the Deputy Minister of Foreign Affairs, as required by s. 9(2) of the State Immunity Act (SIA) - The adjudicator made a finding of unjust dismissal and various orders - A Certificate of Filing of Order was issued - The Federal Court allowed the United States' application for an order setting aside the Certificate - Service of the complaint by registered mail did not conform with s. 9 of the SIA, which was a mandatory, jurisdictional precondition to the commencement of proceedings against a foreign state - Accordingly, the adjudicator had no jurisdiction over the United States - It did not matter what individual or agency (i.e., Zakhary or the Canada Labour Board) was responsible for service under any particular recourse mechanism - See paragraphs 20 to 25.

International Law - Topic 2202

Sovereignty - Incidents of - Immunity - Exceptions - Proceedings relating to commercial activity of foreign state - Zakhary was terminated from her employment as a cashier with the United States Consulate in Toronto - She filed an unjust dismissal complaint under the Canada Labour Code - An inspector in the Federal Ministry of Labour sent the complaint to the Consulate via registered mail - An adjudicator was appointed - The United States advised that it was not a party to the case and would take no steps in the proceeding due to the fact that it was not served with the complaint through diplomatic transmittal by the Deputy Minister of Foreign Affairs, as required by s. 9(2) of the State Immunity Act (SIA) - The adjudicator found that the Consulate's activities were a "commercial activity" and thus exempt from immunity under s. 5 of the SIA - The adjudicator made a finding of unjust dismissal and various orders - A Certificate of Filing of Order was issued - The Federal Court allowed the United States' application for an order setting aside the Certificate - Section 5 did not apply in the context of this case - The court did not parse or dissect, within the walls of embassies or consulates, which functions were purely diplomatic or which functions might be administrative - Zakhary's duties within the financial operation of the consulate, however administrative they might have been, engaged elements of trust and confidentiality, and were thus integral to the operations of the consulate - The prima facie presumption of immunity was not rebutted - The fact that Zakhary might have a remedy in the form of an action for damages had no bearing on the scope of the immunity provisions - See paragraphs 28 to 35.

International Law - Topic 2204

Sovereignty - Incidents of - Immunity - Waiver - Zakhary was terminated from her employment with the United States Consulate in Toronto - She filed an unjust dismissal complaint under the Canada Labour Code - An inspector in the Federal Ministry of Labour sent the complaint to the Consulate via registered mail - The only response to the complaint was an acknowledgment of receipt by a human resources officer (Shorter) with the United States Embassy in Ottawa - An adjudicator was appointed - The United States advised that it was not a party to the case and would take no steps in the proceeding due to the fact that it was not served with the complaint through diplomatic transmittal by the Deputy Minister of Foreign Affairs, as required by s. 9(2) of the State Immunity Act (SIA) - The adjudicator concluded that, through Shorter's letter, the "employer responded" and "did not raise any claim of immunity" - Therefore, the United States "took a step" in the proceeding and waived immunity under s. 4 of the SIA - The adjudicator made a finding of unjust dismissal and various orders - A Certificate of Filing of Order was issued - The Federal Court allowed the United States' application for an order setting aside the Certificate - Shorter's letter did not constitute a waiver of immunity - Waiver by a foreign state had to be explicit, unequivocal or unconditional, and certain - Waiver also had to be that of the state itself, and the representative who waived immunity had to be authorized by the state to do so - None of those requirements were met in this case - See paragraphs 26 and 27.

Practice - Topic 2659

Service - Generally - Waiver of service or abridgment of time for service - [See International Law - Topic 2204 ].

Practice - Topic 2660

Service - Generally - On foreign governments - [See International Law - Topic 250 ].

Cases Noticed:

Reference Re Canada Labour Code and State Immunity Act (Can.), [1992] 2 S.C.R. 50; 137 N.R. 81, refd to. [para. 14].

Tritt v. United States of America et al. (1989), 68 O.R.(2d) 284 (H.C.), refd to. [para. 20].

Softrade Inc. v. United Republic of Tanzania (Minister of Water and Livestock Development) et al., [2004] O.T.C. 482 (Sup. Ct.), refd to. [para. 20].

Kazemi Estate v. Islamic Republic of Iran (2014), 463 N.R. 1; 2014 SCC 62, refd to. [para. 21].

Defense Contract Management Agency - Americas (Canada) v. Public Service Alliance of Canada et al. (2013), 307 O.A.C. 290; 2013 ONSC 2005 (Div. Ct.), refd to. [para. 27].

Canada v. The Employment Appeals Tribunal, [1992] I.R. 484 (S.C.), refd to. [para. 32].

Amaratunga v. Northwest Atlantic Fisheries Organization (2013), 451 N.R. 1; 338 N.S.R.(2d) 360; 1071 A.P.R. 360; 2013 SCC 66, refd to. [para. 35].

Counsel:

Malcolm Ruby and Michael Comartin, for the applicant;

Howard Markowitz, for the respondent.

Solicitors of Record:

Gowling Lafleur Henderson, LLP, Toronto, Ontario, for the applicant;

Du Markowitz, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on December 9, 2014, before Rennie, J., of the Federal Court, who delivered the following judgment and reasons at Ottawa, Ontario, on March 17, 2015.