The Supreme Court of Canada (SCC) has confirmed that international organizations are immune from wrongful dismissal claims from senior employees in Canadian courts: Amaratunga v. Northwest Atlantic Fisheries Organization, 2013 SCC 66
- The Policy Rationale for International Organization Immunity
The Northwest Atlantic Fisheries Organization (NAFO), is an international organization, with an Immunity Order, under the Foreign Missions and International Organizations Act (FMIO). The Immunity Order provides immunity from Canadian law ”to such extent as may be required for the performance of its functions.“
International organizations can take comfort that grants of immunity will likely be broadly interpreted based on the courts comment:
Thus, Parliament’s objective in enacting the FMIO Act was, where international organizations are concerned, to modernize the rules respecting the immunities and privileges it could grant them. This was done both to reflect recent trends in international law and to make Canada an attractive location for such organizations to establish headquarters or offices. To limit the immunity granted in s. 3(1) as narrowly as the appellant proposes would run counter to Parliament’s objectives of modernization, flexibility and respect for the independence of international organizations hosted by Canada.
It bears repeating at this point that immunity is essential to the efficient functioning of international organizations. Without immunity, an international organization would be vulnerable to intrusions into its operations and agenda by the host state and that state’s courts. …
The SCC rejected arguments that NAFO should not be immune because the Appellant “was left without a forum to air his grievances and without a remedy.” Why was this rejected? Because “it is an inevitable result of a grant of immunity that certain parties will be left without legal recourse, and this is a “policy choice implicit” in the [FMIO]…”
- Limits to International Organization Immunity
- Immunity May Not Apply to All Employees
The decision confirms that immunity applies to those holding senior positions in the international organization. The decision was less definitive as to whether immunity will apply to those employees holding lower level positions:
…The appellant was the Deputy Executive Secretary of NAFO, the second-in-command in 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.
The SCC referred to the Appellant’s Statement of Claim in its decision, alleging that the Executive Secretary of NAFO “engaged in improper management practices” and claimed punitive damages. The SCC was satisfied that as a result of these pleadings, the Appellant was “asking the Nova Scotia Supreme Court to pass judgment on NAFO’s management of its employees…[that would] constitute interference with NAFO’s internal management, which goes directly to its autonomy.”
- Immunity Will Not Apply to Contracts of Employment
The SCC did allow the Appellant’s calim for separation indemnity under the NAFO Staff Rules. The court concluded that enforcement of the Staff Rules “would not amount to submitting NAFO’s managerial operations to the oversight of Canadian courts.”
Accordingly, international organizations should expect that they will not enjoy immunity from contractual obligations that may have been created by way of employment contract or workplace policies that speaks to, among other things, severance entitlements.
- Principles in favour of immunity may extend to non-employment related matters
This decision involved a claim for wrongful dismissal, but the principles adopted by the SCC and the wording of most grants of immunity from Canadian law are not confined to employment relationships. In assessing the potential impact that a grant of immunity may have upon a claim against an international organization, the SCC has confirmed that the wording of the grant of immunity, interpreted through the broader context of international law, will govern whether a claim can be advanced. In the case of the grant of immunity provided to NAFO the reasoning of the SCC can be used to suggest immunity from a wide range of legal claims which, if advanced, could restrict NAFO’s functioning.