Legal immunity doesn’t include wrongful dismissal

A legal immunity agreement for an international organization that operates in Nova Scotia doesn’t include a wrongful dismissal claim from a former employee, the Nova Scotia Supreme Court has ruled.

Tissa Amaratunga was the deputy executive secretary of the Northwest Atlantic Fisheries Organization (NAFO) in Dartmouth, N.S. The NAFO is an international organization established in 1979 as a co-operative body among several nations to manage and conserve fishery resources and conduct scientific research in the Northwest Atlantic Ocean.

Organization granted legal immunity

Shortly after the NAFO was formed, the Canadian federal government passed a parliamentary Order-in-Council — later replaced by legislation — that gave the NAFO the status of a body corporate in Canada but issued a legal immunity order. The immunity order stipulated the NAFO would have “immunity from every form of legal process” in Canada, unless it chose to waive that immunity, “to such extent as may be required for the performance of its functions.”

Amaratunga joined the NAFO in 1988 and worked there for 17 years until he was summarily dismissed on June 24, 2005. The NAFO offered him severance funds of about $50,000, but Amaratunga rejected the method and terms of the payment. He contested the dismissal and filed an action for wrongful dismissal and breach of contract in 2006.

However, the NAFO claimed the immunity order from the federal government protected it from the wrongful dismissal claim, leaving Amaratunga no basis for the suit.

Amaratunga argued the immunity order did not give the NAFO absolute immunity from legal issues but rather only for that required for the performance of its functions, which didn’t encompass employment law issues. He also said a claim for immunity by the organization needed to be confirmed by the NAFO’s general counsel.

The NAFO claimed the order was meant to give complete immunity because a strict interpretation limited immunity to what was required to perform its functions could essentially reduce its immunity to nothing. It also argued it should encompass labour and employment laws with respect to employees who play a direct role in carry out its functions, such as that of Amaratunga’s role of deputy executive secretary.

Scope of immunity order in question

The court found there was nothing in the immunity order that specified the NAFO’s general counsel had to confirm specific immunity and the issue was simply whether the organization’s immunity applied to Amaratunga’s wrongful dismissal suit. The court also noted there was no presumption of legal immunity for the NAFO and the onus was on the organization to show the immunity granted to it by the government applied in this case.

Scope of immunity order limited

After hearing evidence from international law experts, the court determined there was no “customary international law” that provided complete immunity from all legal processes for international organizations and the only determinant of immunity for the NAFO would be the scope of the Canadian government’s immunity order. It also found Parliament didn’t intend to grant the NAFO the same level of complete immunity as the United Nations, sine it included language limited the immunity to the performance of the organization’s function.

“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,” said the court. “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.”

The court found the use of the word “required” in the immunity order referred to functions that were essential or necessary to the NAFO’s function. It found the NAFO’s function, according to its stated primary objective, was the “optimum utilization, rational management and conservation of the fish resources in the Northwest Atlantic Ocean. This function was performed in a limited technical and geographic sector, said the court, which was much smaller in scope than most United Nations agencies, as a comparison.

The court found the NAFO’s official functions would not be damaged by an obligation to pay an former employee financial entitlements and the NAFO failed to satisfy its burden to show it needed immunity from employment law and contract law requirements to provide Amaratunga with financial compensation for his dismissal.

“It is safe to say that it is a principle of both domestic common law and international law that an aggrieved person with a legitimate claim is entitled to a fair hearing before a competent, independent and impartial tribunal established by law. It would require a clear legislative intent to adopt an interpretation of the NAFO Immunity Order that would be inconsistent with such a basic right,” said the court.