Employment Law, Jurisdictional Immunity, and Access to Justice: Amaratunga v Northwest Atlantic Fisheries Organization

In Amaratunga v Northwest Atlantic Fisheries Organization, 2013 SCC 66, Justice LeBel, writing for a unanimous court, determined that an employee’s claim for wrongful dismissal against the Northwest Atlantic Fisheries Organization (NAFO) could not succeed due to the jurisdictional immunity that the international organization was entitled to as a result of an immunity order it had entered into with Canada.

Facts

With a mandate to manage and preserve fishing resources in the Northwest Atlantic Ocean, NAFO is an international organization headquartered in Nova Scotia. Mr. Amaratunga held a senior management position with the organization from 1988 until 2005, at which point his employment was terminated. There was some evidence of animosity between Mr. Amaratunga and his superior, an executive secretary appointed in 2003.

When Mr. Amaratunga was terminated on June 24, 2005, he was provided with a letter that stipulated he would receive a salary up to July 31, 2005 (effectively 1 month notice) and also a leave entitlement and separation indemnity under rule 10.4 of the NAFO Staff Rules. This amount totalled $102,193. He was also to receive an amount of $50,956 to compensate him for financial disadvantages as a result of unemployment.

Mr. Amaratunga initially accepted the terms of the payment of the separation indemnity, but stipulated that the gratuitous $50,956 should be paid “without prejudice” (i.e. it cannot be used against him as evidence in the event of future legal proceedings). NAFO made payments according to the agreement. However, when it attempted to pay Mr. Amaratunga for the gratuitous payment of $50, 956, the cheque was returned because NAFO had not agreed to Mr. Amaratunga’s stipulations that it would be given “without prejudice.” Mr. Amaratunga then sued for wrongful dismissal.

Interpreting Immunity

Article 11(4) of the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, Can. T.S. 1979 No. 11 (“the Convention”) specifies that NAFO has legal personality and as such, enjoys immunities and privileges. Article II(3) provides that Canada and NAFO are to agree on the specificities of those privileges and immunities in Canada in the NAFO Immunity Order.

The Court focused on the meaning of immunity in the phrase “to such extent as may be required for the performance of its functions” found in s. 3(1) of the NAFO Immunity Order. The Court looked to this phrase to establish the scope of the immunity granted to NAFO by the Governor in Council using principles of statutory interpretation.

The varied interpretation of the statute was at issue in this case because Amaratunga argued that the word “required” in s. 3(1) of the NAFO Immunity Order should be understood in its ordinary meaning as “necessary.” He further argued that any interpretation of s. 3(1) must be consistent with Canada’s international obligations. That is, the NAFO Immunity Order must be interpreted in a manner consistent with the right to a fair hearing provided for in the International Covenant on Civil and Political Rights, UN General Assembly, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171 (“ICCPR”).

The Canadian Civil Liberties Association intervened in the case to present a similar argument that the interpretation of the NAFO Immunity Order should not violate the fundamental principle of access to justice.

In contrast, NAFO argued that a proper functional approach to interpretation entitles them to immunity from Mr. Amaratunga’s claims.

In the lower court, Justice Wright concluded that the immunity provided for in the NAFO Immunity Order applies only to the extent that it is necessary for NAFO’s performance of its functions. On this basis, he reasoned that since NAFO’s functions relate to the utilization, management and conservation of fisheries resources, the organization does not require immunity in functions outside of this sphere, such as matters related to employment law.

The Supreme Court determined that this analysis limited the definition of the word “required” and that other interpretive factors must be considered in the determination of the meaning of s. 3(1) of the NAFO Immunity Order. Justice LeBel offered the following analogy:

[41] If the word “required” were to be interpreted as meaning “necessary” in the strictest sense, officials working for NAFO would enjoy only such personal immunities and privileges as are required for the performance of their duties…such a narrow interpretation of the word “required” would mean that NAFO officials would not be entitled to import their furniture and effects free of duty — arguably a common immunity enjoyed by individuals working for international organizations — because, in light of NAFO’s mission, the importation of such items would not, in this strict sense, be “required” for the performance of their duties.

Although one might contend that it is required to have furniture “in the performance of duties,” given that it is necessary to rest when not at work in order to function at work, it is also necessary to receive reasonable notice when employment is terminated. Nonetheless, the Court deemed that a literal interpretation of “required” would lead to absurd conclusions.

However, the Court did recognize—following Re Canada Labour Code, [1992] 2 S.C.R. 50—that labour relations are important to the achievement of an organization’s mission. It further acknowledged that NAFO could not function without employees. Yet, the Court maintained that the employment relationship is “multi-faceted” and contextual, thus highlighting the Court’s clear unwillingness to impose obligations on international organizations located in Canada.

In reaching this decision, Justice LeBel also looked at the relevant statute, the Foreign Missions and International Organizations Act, S.C. 1991, c. 41 (“FMIO Act”) to determine Parliament’s intentions on the subject of immunity.

The Court determined that in enacting the FMIO Act, Parliament sought to provide for immunities and privileges to entities of foreign states so that the provinces’ missions abroad could receive reciprocal immunities. The Court found that this provision was also intended to reflect “trends” in international law and to make Canada a desirable location for organizations to establish offices. As such, the Court determined that to limit the interpretation of immunity to only what was literally required for the job (the interpretation proposed by Mr. Amaratunga) would run counter to Parliament’s objectives of independence for international organizations headquartered in Canada.

The Court reasoned that an international organization could be vulnerable to state intrusions into its operations and agenda without immunity. Although this argument does have a great deal of merit—as the Canadian Civil Liberties Association argued—there are also serious access to justice issues that arise out of broad immunity. Although Mr. Amaratunga was a well-paid senior manager, one could imagine this situation arising with a different set of facts in which the complainant is not similarly well off. Mr. Amaratunga had no recourse to argue for reasonable notice in termination that he would normally be entitled to under Canadian law.

Further, such a wide interpretation of immunity as that advanced by the Court is also open to abuse by international organizations and those who work for them. Indeed, the case of Atkinson v Inter-Am. Dev. Bank, 156 F.3d (D.C. Cir. 1998) arising out the United States is just one example. After a particularly conflictual divorce, Ms. Atkinson was unable to collect on the monies owed to her because her ex-husband (an employee of the Inter-American Development Bank) filed for bankruptcy and left the United States. Ms. Atkinson sought to enforce state court judgements against her ex-husband by garnishing his wages through his employer. However, the District of Columbia Circuit Court found that the Inter-American Development bank was immune from suit.

In Amaratunga, the Supreme Court acknowledged the problems, highlighted in both the Canadian and American immunity cases, whereby those affected by immunity will be without a forum to grieve or seek remedies. However, it ultimately reasoned that the Canadian Bill of Rights , S.C. 1960, c. 44 “right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations” does not create a substantive right to make a claim. Rather, it provides for a fair hearing if and when a hearing is held. As such, the fact that Mr. Amaratunga has no forum in which to air his grievances and seek a remedy was found to be nothing more than “unfortunate” by the Court.