In this case, the Nova Scotia Court of Appeal considered the extent to which an international organization has immunity within Canada.
Justice MacDonald determined that immunity is accorded in “any domestic suit that stands to interfere with [the international organization’s] autonomy in performing its functions. Therefore, simple interference suffices, and a greater level of interference, such as “significant”, “excessive” or “impermissible” interference, need not be found.
The case arose when a wrongful dismissal suit was brought against the Northwest Atlantic Fisheries Organization ("NAFO"), an international body headquartered in Nova Scotia. NAFO challenged the jurisdiction of the Supreme Court of Nova Scotia to adjudicate the matter, citing international law and the NAFO Immunity Order. Canada had issued an immunity order to NAFO pursuant to the Privileges and Immunities (International Organizations) Act (succeeded by the Foreign Missions and International Organizations Act). The NAFO Immunity Order provides that NAFO should have certain privileges and immunities “to the extent as may be required for the performance of its functions.” The court is tasked with interpreting the phrase “required for the performance of its function.”
MacDonald, C.J.N.S. reasoned that the immunity of an international organization is rooted in the necessity to preserve the organization’s autonomy to carry out its functions. Thus, immunity is accorded in “any domestic suit that stands to interfere with NAFO’s autonomy in performing its functions.” In coming to this conclusion, the court explicitly rejected both a broader view that immunity should be granted to every action simply related to performance of NAFO’s functions and a more restricted view that immunity would only be available if the proposed lawsuit would threaten the NAFO’s operations. Applying this reasoning, the court determined that by subjecting NAFO’s core operations to judicial scrutiny, and the consequent possibility of the court condemning NAFO’s management structure, assuming jurisdiction in this case would interfere with NAFO’s autonomy. The court thus held that the Supreme Court of Nova Scotia did not have jurisdiction to adjudicate this matter. MacDonald, C.J.N.S. noted that his interpretation leaves the plaintiff in this case without an enforceable legal remedy, but speculated that NAFO might nevertheless voluntarily extend some sort of remedy to the plaintiff; “After all, if such international organizations are to attract domestic employees, they must earn a reputation of treating their employees fairly. NAFO would be no exception.”
August 23, 2011
Link to Decision
Rebecca Crangle
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