HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marsha Bentley

Applicant

-and-

Consulate General of Barbados/Invest Barbados

Respondents

DECISION

Adjudicator: Sheri D. Price

Date: November 12, 2010

Citation: 2010 HRTO 2258

Indexed as: Bentley v. Consulate General of Barbados/Invest Barbados

Written Submissions

Marsha Bentley, Applicant ) Self-represented

Consulate General of Barbados/ ) Adam Halioua, Counsel

Invest Barbados, Respondents )

INTRODUCTION

1The applicant filed an Application with the Tribunal pursuant to s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), alleging that her employment with the respondents was terminated on the basis of pregnancy, and therefore sex, contrary to the provisions of the Code.

2Specifically, the applicant contends that she was hired by the respondents as a secretary on a contractual basis in March 2007. The applicant alleges that a more permanent position with the respondents became available during the summer of 2008. The applicant, who was pregnant at the time, was interviewed for the position in August 2008. The applicant gave birth on September 6, 2008. A couple of days later, the applicant received a Record of Employment from the respondents, listing the Consulate General of Barbados (“the Consulate”) as her employer, and indicating that the reason for cessation of the employment relationship was “maternity leave” and that the applicant would not be returning to employment with the respondents. By letter dated November 4, 2008, the respondents notified the applicant that the position for which she had been interviewed had been filled by another candidate.

3The respondents have not responded to the specific allegations in the Application. Rather, in accordance with the Tribunal’s earlier Interim Decision in this matter, 2010 HRTO 89, the respondents have filed a Request that the Application be dismissed on the basis that the Tribunal lacks jurisdiction over the Application. Specifically, the respondents assert that they are immune from the Application pursuant to s. 3(1) of the State Immunity Act, R.S.C. 1985, c. S-18 (“SIA”), which states:

Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.

4The applicant filed a Response to the respondents’ Request to Dismiss in which she maintains her belief that her rights were violated by the respondents and states that she wishes the Tribunal to hear her Application. She does not specifically contest the respondents’ submission that they are immune from the Application or their factual assertions in support of that submission.

5For the reasons that follow, I find that the respondents are protected by state immunity from this Application and the Tribunal therefore has no jurisdiction over this Application. The Application is dismissed accordingly.

LAW AND ANALYSIS

6The respondents submit that the applicant was employed jointly by the Consulate General of Barbados, the legal representative of the Government of Barbados in Toronto, and Invest Barbados, a statutory corporation wholly-owned by the Government of Barbados. The respondents submit that the Consulate and Invest Barbados fall within the definition of “foreign state” in the SIA and that the respondents are immune from the legal jurisdiction of the Tribunal pursuant to s. 3(1) of the SIA.

7The respondents further submit that the Application does not fall within the “commercial activity” exception to state immunity contemplated in the SIA, as the Application relates more to the sovereign acts of the foreign state of Barbados than to its commercial acts.

8The respondents’ Request raises the following issues, each of which I address in turn, below:

1. Does the SIA apply with respect to proceedings before the Tribunal?

2. If the SIA does apply to proceedings before the Tribunal, are the respondents a “foreign state” or “agency of a foreign state” such that they have immunity under the SIA?

3. Does this proceeding fall within the “commercial activity” exception in the SIA such that the respondents are deprived of immunity from the Application?

Application of State Immunity Act to proceedings before the Tribunal

9The respondents submit that they are immune from this Application under the Code by virtue of s. 3(1) of the SIA which states that a foreign state is immune from the “jurisdiction of any court” in Canada.

10Before determining any other issue arising in respect of the respondent’s Request, it seems to me there is a threshold question whether the SIA applies to proceedings which are not before “a court” per se, but rather before a statutory tribunal, such as the Human Rights Tribunal of Ontario.

11Having carefully considered the matter, I am satisfied that foreign states who are immune from the “the jurisdiction of any court in Canada” under the SIA are immune from the jurisdiction of the Tribunal. Below are my reasons in this regard.

12First, in the leading case on state immunity, Re Canada Labour Code, 1992 CanLII 54 (SCC), [1992] 2 S.C.R. 50 at para. 21, the Supreme Court of Canada found that, pursuant to the terms of the SIA, the United States was immune from “the jurisdiction of any domestic labour tribunal” in respect of labour relations at one of its military bases in Canada. Although in that case, the Canada Labour Relations Board, a statutory tribunal, “conceded” that it was a “court” for the purposes of the SIA (para. 10), in accepting and relying upon the concession and by going so far as to conclude that immunity applied in respect of “any” domestic labour tribunal, the Court sent a strong signal that state immunity under the SIA applies equally to proceedings before statutory tribunals as well as the courts.

13Second, a purposive interpretation of the legislation leads me to conclude that the immunity from the “jurisdiction of any court” includes immunity from proceedings before statutory tribunals.

14The Supreme Court has stated that in interpreting statutes, a court or tribunal must take a purposive and contextual approach, reading “the words of an Act … in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27 at para. 21, citing R. Sullivan, Sullivan and Driedger on the Construction of Statutes (3rd ed. 1994), at p. 87. See also Whiteley v. Osprey Media Publishing, 2010 HRTO 2152; Wilkes v. Just Energy, 2010 HRTO 655.

15Re Canada Labour Code is instructive with respect to the purpose and object of the SIA. In that case, the Supreme Court held that the SIA codified the restrictive theory of sovereign immunity developed by the common law, “continuing and clarifying” it, without altering its substance: at para. 30. Since the SIA has been held to codify the common law theory of state immunity, it is useful to have regard to that theory in determining the purpose and object of the SIA.

16The common law doctrine of state immunity recognizes that sovereign nations relate to one another as independent equals who do not submit to one another’s laws, since to do so would “embarrass” or offend the dignity of the sovereign nation. In Saint-John (City) v. Fraser-Brace Overseas Corp., 1958 CanLII 40 (SCC), [1958] S.C.R. 263 at 267, as cited in Jaffe v. Miller, (1993) 1993 CanLII 8468 (ON CA), 13 O.R. (3d) 745 (ON C.A.) at para. 20, the Supreme Court of Canada described the fundamental conception upon which the common law theory of state immunity is based:

The fundamental attitude which states adopt towards each other is the recognition and observance of individual sovereignty, that is, the acknowledgement of the absolute independence of each; and on this basic footing their intercourse is conducted.

(…)

In the absence of something special or unusual, when a visiting sovereign steps upon the foreign soil he does so free from any submission to its immanent law; from that he remains insulated; and the recourse against what may be considered to be an infringement of the privileges of the invitation becomes a matter for diplomatic and not legal adjustment.

Saint John, supra, at 268.

17The principles underlying the common law theory of state immunity have continued to inform the Court’s interpretation and application of state immunity under the SIA, first enacted in 1982:

Just as the internal management of a federal operation is exempt from provincial regulation, so too must the management of foreign sovereign operations be exempt from Canadian regulation. The same principle applies in each instance: sovereign states … should not be embarrassed by subjection to the overreach of regulations imposed by another jurisdiction.

Re Canada Labour Code, supra, at para. 42

18Taking a purposive and contextual approach to the interpretation of the SIA, I find that immunity from the “jurisdiction of any court” in s. 3(1) of the SIA applies to proceedings before tribunals as well as the courts proper, including the Human Rights Tribunal of Ontario. This, in my view, is the interpretation which is in greatest harmony with the scheme and object of the SIA and the intention of Parliament.

19Since the SIA codified the common law, its purpose is to recognize that, subject to certain exceptions, sovereign nations are independent from Canada and not subject to our laws or legal jurisdiction. Bearing the purpose of the SIA in mind, it becomes clear that whether laws are enforced and jurisdiction exercised through courts or administrative tribunals is irrelevant to the inquiry. Submission to the legal jurisdiction of Canada would offend the dignity of the foreign sovereign and undermine the concept of sovereign nations as independent equals no matter the forum – court or tribunal.

20Moreover, to interpret the legislation otherwise – that is, to find that foreign states were immune to proceedings before the “courts” but not before “tribunals” – would frustrate the very purpose of the SIA and fly in the face of the common law doctrine of state immunity which it codified.

21I am further fortified in my interpretation because it would be absurd to find that the respondents were subject to the jurisdiction of the Tribunal when they are clearly not subject to the jurisdiction of the Ontario Divisional Court, which judicially reviews the Tribunal’s decisions, nor even indeed of the Supreme Court of Canada, the ultimate adjudicative authority in Canada. In addition to applications for judicial review, the Tribunal is also subject to the jurisdiction of the Divisional Court in that it may state a case to the Divisional Court on questions of law (s. 45.6 of the Code). Taking all of this into account, it would not make sense to interpret the SIA to mean that foreign state respondents are subject to the powers of the Tribunal but not of any of the superior courts to which the Tribunal itself is subject.

22Finally, on this latter point, I note that it is not necessary for me to find that the “tribunal” is a “court” within the meaning of the SIA in order to conclude that state immunity under the SIA applies to proceedings before the Tribunal. Rather, the question is whether immunity from the “jurisdiction of any court” includes immunity from proceedings before the Tribunal. Parties to proceedings before the Tribunal are subject to the jurisdiction of the Ontario Divisional Court when it sits in judicial review of the Tribunal’s decisions, and to the jurisdiction of the Ontario Court of Appeal and ultimately the Supreme Court of Canada when it sits on appeal from the Divisional Court’s decisions. The fact that Applications to the Tribunal may thus ultimately end up before the courts on judicial review and appeal is another reason for my finding that proceedings before the Tribunal fall within “the jurisdiction of any court” in Canada such that state immunity under the SIA applies in respect of proceedings before the Tribunal.

23Having thus determined that “foreign states” are immune from the jurisdiction of the Tribunal, the question becomes whether the respondents in this case fall within the definition of “foreign state” in the SIA.

Whether respondents a “foreign state” or “agency of a foreign state” within meaning of State Immunity Act

24According to the Application and the respondents’ submissions, the applicant was jointly employed by the Consulate and Invest Barbados.

25The respondents submit that the applicant was initially hired as a secretary by the Consulate of Barbados (“the Consulate”) and the Barbados Investment and Development Corporation (“BIDC”) in March 2007. Documents submitted with the Application confirm this. The respondents assert that BIDC is a statutory corporation wholly-owned by the Government of Barbados. As noted above, the applicant did not dispute this fact.

26The respondents submit that, after she was hired, the applicant primarily performed duties for the International Business Division of BIDC, which Division became a distinct statutory corporation wholly-owned by the Government of Barbados known as “Invest Barbados” in 2008, while the applicant was still employed by the respondents. Again, the applicant did not dispute this contention.

27The respondents submit that both BIDC and Invest Barbados operate in Canada under the umbrella of the Consulate General of Barbados. They are not separate registered entities in Canada. The respondents submit that BIDC and Invest Barbados effectively operate as a single entity together with the Consulate.

28The respondents submit that the prime objective of Invest Barbados is to market Barbados and to attract foreign direct investment into Barbados, an objective which is pursued together with the Consulate.

29The respondents submit that the Government of Barbados allocates Invest Barbados’ budget; appoints its Board of Directors; and retains ultimate decision-making authority over the entity. The Invest Barbados team in Canada is comprised of an executive assistant, a secretary and two diplomats.

30Again, the applicant did not dispute any of the respondents’ submissions about the relationship between Invest Barbados and the Consulate or the Government of Barbados.

31The Consulate-General of Barbados is a consular post established in Canada by the sovereign state of Barbados to perform consular functions on its behalf, as described in Article 5 of the Vienna Convention on Consular Relations (which Convention has the force of law in Canada pursuant to s. 3(1) the Foreign Missions and International Organizations Act, S.C. 1991, c. 41). The Consulate very clearly falls within the definition of “foreign state” in the SIA.

32Under the SIA, “foreign state” includes “an agency of a foreign state”. Section 2 of the SIA defines “agency of a foreign state” to mean “any legal entity that is an organ of the foreign state but that is separate from the foreign state.” As a statutory corporation wholly-owned by the Government of Barbados, with its own Board of Directors, Invest Barbados is a separate legal entity which performs state functions (i.e. marketing the country of Barbados to investors) and is ultimately controlled by the Government of Barbados. I therefore find that Invest Barbados is an “agency of a foreign state” and therefore a “foreign state” within the meaning of the SIA, and protected by state immunity.

Commercial Activity Exception to State Immunity

33The respondents acknowledge that state immunity is not absolute and that there are exceptions to state immunity in the SIA. Of particular significance is s. 5 of the SIA which states:

A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.

34The onus is on the applicant to prove that the responding state is deprived of immunity because of the exception in s. 5 of the SIA. See: Greco v. Holy See (State of the Vatican City), [2000] O.J. No. 5293, at para. 2. In this case, the applicant has not asserted that the respondents are deprived of immunity pursuant to the “commercial activity” exception in the SIA, or put forward any facts to support such an assertion, even after the respondents raised the issue in their Request. However, since the Application arises out of the applicant’s contract of employment with the respondents, and since in their Request the respondents themselves suggest that the relevant inquiry is whether the “commercial activity” exception in the SIA applies in the circumstances of this case, it is appropriate for the Tribunal to consider whether these proceedings fall within the exception in s. 5 of the SIA.

35Re Canada Labour Code is the leading case regarding when proceedings arising out of employment by a sovereign nation will fall within the “commercial activity” exception in s. 5 of the SIA. In that case, the Supreme Court of Canada considered whether an application to the (then) Canada Labour Relations Board (“CLRB”) to unionize civilian personnel at a United States military base in Canada were proceedings which relate to the “commercial activity” of a foreign state, such that the foreign state was deprived of immunity.

36The Supreme Court affirmed that, under the SIA, foreign states are immune from proceedings which relate to their sovereign as opposed to commercial acts. The Supreme Court held that in order to determine whether the foreign state’s activity is “commercial” or “sovereign” in nature, one must consider the activity in its entire context. The Court acknowledged that “a bare contract for employment services … is, in and of itself, generally a commercial activity” and that “generally speaking, Canadian employees of foreign sovereign states are entitled to turn to our courts for enforcement of their employment contracts … to sue, for example, for unpaid wages...” (at para. 43)

37However, the Supreme Court found that that employment by a foreign sovereign state may have “sovereign attributes” as well and that the “management and operation of a military base is undoubtedly a sovereign activity” (at para. 44).

38Ultimately, the Supreme Court determined that the United States’ military base was immune from union certification proceedings before any Canadian labour tribunal. This was because, “at the heart of the matter,” the certification application to the CLRB sought to regulate the management and operations of a foreign state’s military base; and as such the CLRB proceedings related “most obviously and directly” to the sovereign activities of the foreign state.

39Similarly, in Greco, supra, the Ontario Superior Court applied the reasoning in Re Canada Labour Code to find that an action for wrongful dismissal against the Holy See, a “foreign state” within the meaning of the SIA, did not fall within the “commercial activity” exception in the SIA and that the Holy See was therefore immune from the civil action.

40The plaintiff in Greco alleged that she performed secretarial functions at the Holy See’s consulate in Ottawa, and that she was subjected to abuse, psychological torture, and harassment by the employer during her employment. She also alleged that she was dismissed from her job without just cause. By way of remedy, the plaintiff sought damages for mental suffering, among other things.

41The Court found that the defendants were immune from the wrongful dismissal action because the action would necessarily entail an examination of the reasons for and the circumstances of the plaintiff’s dismissal. The proceedings would therefore have had a “significant impact on the sovereign right of the defendant state to control and regulate its own workforce” and would have constituted “an unacceptable interference with sovereignty”: at para. 6. On this basis, the Court held that the wrongful dismissal claim did not fall within the “commercial activity” exception in the SIA and the defendants were immune from it. The plaintiff was permitted to continue with that part of her claim which related to unpaid wages.

42I turn now to the case at hand. The applicant in this case alleges that the respondents selected a candidate other than the applicant for a permanent job based on the applicant’s pregnancy (i.e. sex), and that the applicant’s employment was terminated based on her pregnancy.

43This Application, were it to proceed, would necessarily require the Tribunal to examine the reasons for and the circumstances of the plaintiff’s departure from the respondents’ employ as well as the respondents’ reasons for hiring someone other than the applicant on a permanent basis. The Courts have held that this kind of inquiry would constitute an unacceptable interference with the sovereign right of the defendant state to control and regulate its own workforce.

44In my view, the operation and management of a consulate is precisely the type of activity which the courts have found to be “sovereign” as opposed to “commercial” in nature. The Supreme Court of Canada has stated that “The operations of embassies and offshore military posts are the quintessential examples of state activity that should be immune from foreign review.” Re Canada Labour Code, supra, at para. 44.

45It seems to me that the above proposition applies with equal force to consulates, which the courts have found to be akin to embassies for the purposes of state immunity: Butcher v. Saint Lucia, [1998] O.J. No. 2026 (Ont. Crt. Gen. Div.) at para. 18. See also the passage from Italian Trade Union for Embassy and Consular Staff v. United States, (1981), 65 I.L.R. 338 (Italy), as cited in Re Canada Labour Code, supra, at para. 55.

46Having regard to the applicable authorities, I have no doubt that insofar as the Application relates to the applicant’s employment by the Consulate, it relates more to the sovereign acts of the foreign state of Barbados than to its commercial acts and therefore does not fall within the “commercial activity” exception to state immunity.

47To the extent the Application relates to the employment of the applicant by Invest Barbados, however, the situation is somewhat less clear. Invest Barbados’ activities in marketing Barbados and attracting foreign direct investment into Barbados may very well be more “commercial” than “sovereign” in nature; there is no dispute that the applicant’s duties primarily related to the day-to-day operations and administration of Invest Barbados. Ultimately, however, the question is not whether Invest Barbados’ activities are primarily sovereign or commercial in nature, but whether the applicant has established that this Application relates to the commercial activity of the foreign state of Barbados. The applicant in this case has not done so.

48As noted above, there is no dispute between the parties that the applicant was jointly employed by the Consulate and Invest Barbados. In her Application, the applicant names the Consulate and Invest Barbados as a single respondent with one contact person. This is consistent with the respondents’ submissions about the nature of the relationship between the Consulate and Invest Barbados. The Consulate is also listed as the applicant’s employer on her Record of Employment.

49Even if I were to find that the applicant’s day-to-day duties related more to the foreign state’s commercial activities than to its sovereign activities, because the applicant was employed jointly by the Consulate, the Application would inevitably lead to an inquiry into the Consulate’s hiring and organizational practices. The Application would therefore interfere with the operation and management of the Consulate and the foreign state’s sovereign right to control and manage the workforce at the Consulate. The Courts have been clear that such a proceeding does not fall within the “commercial activity” exception in the SIA and that state immunity protects the respondents from such a proceeding.

50For the reasons set out above, I find that the respondents are immune from the jurisdiction of the Tribunal in respect of this Application, and they are not deprived of that immunity pursuant to the “commercial activity” exception in s. 5 of the SIA.

Conclusion

51Under the SIA, state immunity “from the jurisdiction of any court in Canada” includes immunity from proceedings before the Tribunal.

52As a “foreign state” and “agency of a foreign state” within the meaning of the SIA, the respondents are protected by state immunity, unless the applicant establishes that the respondents are deprived of such immunity pursuant to one of the exceptions in the SIA. The applicant does not allege that one of the exceptions applies in this case; in any event, I am satisfied that these proceedings do not fall within the “commercial activity” exception in the SIA. Accordingly, I find that the respondents are immune from the jurisdiction of the Tribunal in respect of this proceeding. The Application is dismissed.