HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Karina Gould Applicant
-and-
ProMexico – Trade Commission of Mexico in Toronto Respondent
DECISION
Adjudicator: Brian Cook Date: September 2, 2015 Citation: 2015 HRTO 1165 Indexed as: Gould v. ProMexico – Trade Commission of Mexico in Toronto
APPEARANCES
Karina Gould, Applicant Megan Evans Maxwell, Counsel
ProMexico – Trade Commission of Mexico in Toronto, Respondent George Waggott, Counsel
Introduction
1This Application alleges discrimination with respect to employment and contracts contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondent submits that the State Immunity Act, R.S.C. 1985, c. S-18 (”SIA”) applies to the respondent. Section 3 of the SIA provides:
Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.
2The applicant does not agree that the SIA restricts the applicant from bringing the Application. The applicant relies on section 5 of the SIA:
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.
3The respondent further submits that the Application was not served in accordance with section 9 of SIA, which provides:
- (1) Service of an originating document on a foreign state, other than on an agency of the foreign state, may be made
(a) in any manner agreed on by the state;
(b) in accordance with any international Convention to which the state is a party; or
(c) in the manner provided in subsection (2).
(2) For the purposes of paragraph (1)(c), anyone wishing to serve an originating document on a foreign state may deliver a copy of the document, in person or by registered mail, to the Deputy Minister of Foreign Affairs or a person designated by him for the purpose, who shall transmit it to the foreign state.
(3) Service of an originating document on an agency of a foreign state may be made
(a) in any manner agreed on by the agency;
(b) in accordance with any international Convention applicable to the agency; or
(c) in accordance with any applicable rules of court.
4The respondent submits that this means that the Application must be served by delivering it to the Deputy Minister of Foreign Affairs.
5The applicant does not agree that the Application was not properly served. The applicant submits that the respondent is an “agency” and not a foreign state and therefore section 9(3) applies.
6These issues were canvassed in a telephone conference call hearing on April 15, 2015, and in written submissions from the parties. In addition, the Tribunal received communications from Foreign Affairs, Trade and Development Canada. As discussed below, these included a Certificate relevant to the respondent’s status.
The Tribunal is subject to the State Immunity Act
7Although the SIA refers to courts and not specifically to tribunals, the reference to courts applies equally to tribunals: Bentley v. Consulate General of Barbados/Invest Barbados, 2010 HRTO 2258. This fact is not disputed by the parties in this case.
The respondent has not waived immunity
8The applicant has suggested that the respondent has waived any immunity it could otherwise claim because it has participated in the proceeding at the Tribunal. The respondent submits that from the time the Application was delivered to the respondent, it has participated only to assert its immunity. At the hearing, the applicant submitted that the respondent had participated in the hearing beyond asserting its immunity because it had made objections to witnesses she proposed to call and also to documents she wished to file.
9Section 4 of the SIA provides:
- (1) A foreign state is not immune from the jurisdiction of a court if the state waives the immunity conferred by subsection 3(1) by submitting to the jurisdiction of the court in accordance with subsection (2) or (4).
(2) In any proceedings before a court, a foreign state submits to the jurisdiction of the court where it
(a) explicitly submits to the jurisdiction of the court by written agreement or otherwise either before or after the proceedings commence;
(b) initiates the proceedings in the court; or
(c) intervenes or takes any step in the proceedings before the court.
(3) Paragraph (2)(c) does not apply to
(a) any intervention or step taken by a foreign state in proceedings before a court for the purpose of claiming immunity from the jurisdiction of the court; or
(b) any step taken by a foreign state in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained before the step was taken and immunity is claimed as soon as reasonably practicable after they are ascertained.
10In my view, the respondent’s participation in the Tribunal’s process has been with respect to its assertion of immunity. The objections raised by the respondent to which the applicant refers were raised with respect to the immunity issue and the related issue of whether the commercial activity exception applies. I am satisfied that the respondent has not submitted to the Tribunal’s jurisdiction.
What is ProMexico?
11The respondent describes itself as a Trade Commission. Its purpose is to promote trade and commercial activity between Mexico and Canada.
12A Certificate issued by the Department of Foreign Affairs, Trade and Development on April 13, 2015 states:
In accordance with paragraphs 11(a) and 11(e) of the Foreign Missions and International Organizations Act, I hereby certify under the authority of the Minister of Foreign Affairs that “Pro-Mexico – Trade Commission of Mexico” in Toronto is part of the consular post of the United Mexican States established with the consent of the Government of Canada and has privileges and immunities under this Act.
13Sub-sections 11(a) and (e) of the Foreign Missions and International Organizations Act, S.C. 1991, c. 41, provide:
- A certificate purporting to be issued by or under the authority of the Minister of Foreign Affairs and containing any statement of fact relevant to any of the following questions shall be received in evidence in any action or proceeding as proof of the fact stated in the certificate without proof of the signature or official character of the person appearing to have signed the certificate:
(a) whether a diplomatic mission, a consular post or an office of a political subdivision of a foreign state has been established with the consent of the Government of Canada;
(e) whether any person, diplomatic mission, consular post, office of a political subdivision of a foreign state, international organization or accredited mission has privileges, immunities or benefits under this Act.
14The respondent is thus part of the Mexican “consular post”. Consular posts are recognized by the Vienna Convention on Consular Relations, to which Canada is a signatory. The Foreign Missions and International Organizations Act gives the force of Canadian law to the Convention and recognizes that consular posts are part of the foreign state to which they relate. A consular post has the immunity conferred by section 3 of the SIA. However, section 5 of the SIA provides that immunity does not apply in any proceedings that relate to any commercial activity of the foreign state. The applicant submits that this Application relates to a contract of or for employment and that such a contract is a “commercial activity”.
The applicant's contract
15The applicant had a contract of service with the respondent, which identified her as an Independent Professional Service Provider who would provide service through the following activities:
- Market analysis and generation of profiles, with the objective to generate new export projects.
- Identification of Mexican exporters for specific market opportunities.
- Generation of databases of importers and exporters.
- Maintenance and general management of export projects in the CRM.
- Carrying out of market studies or other tasks, as ordered by the head of the office.
- Assist the head of the office to initiate leads and follow-up of export projects.
- Identification and approaching of Canadian importers to promote Mexican products in Canada.
- Generate business opportunities to send to Mexico and register in the Hecho en Mexico B2B system.
- Activity report of business cases.
Service of the Application
16When the Tribunal receives an Application, the Tribunal’s practice is to deliver the Application to the respondent(s) named in the Application. In this case, the Application was delivered to ProMexico – Trade Commission of Mexico in Toronto.
17The Tribunal does not have any different rule or practice in respect of respondents who may be a foreign state or an agency of a foreign state.
18Section 9 of the SIA, set out above, is clear that if the respondent is a foreign state, service must be made by delivering a copy of the Application to the Deputy Minister of Foreign Affairs. This was not done in this case.
19The applicant submits that the respondent is not a foreign state but rather an agency of a foreign state. The applicant submits that service is therefore governed by section 9(3) of the SIA. As quoted above, it provides:
(3) Service of an originating document on an agency of a foreign state may be made
(a) in any manner agreed on by the agency;
(b) in accordance with any international Convention applicable to the agency; or
(c) in accordance with any applicable rules of court.
20Section 2 of the SIA defines “agency of a foreign state” as follows:
“Agency of a foreign state” means any legal entity that is an organ of the foreign state but that is separate from the foreign state.
21The applicant refers to Bentley v. Consulate General of Barbados/Invest Barbados, 2010 HRTO 2258, which considered the relationship between the Barbados Consular post and Barbados/Invest Barbados, which was described as a trade commission, with similar functions to the respondent in this Application. In Bentley, it was stated that the Barbados trade commission was an agency of a foreign state and that it was a separate legal entity from the Barbados consular post. In Bentley, the issue of service does not appear to have arisen. Also, it appears that, unlike the instant case, the Tribunal received no information from the Department of Foreign Affairs, Trade and Development.
22In this case, the Department of Foreign Affairs, Trade and Development has certified that the respondent is “part of the consular post of the United Mexican States”.
23It therefore appears that the Application may not have been served in accordance with the provisions of the SIA. However, given my findings below, it is not necessary to address this issue further.
The commercial activity exemption
24Section 5 of the SIA provides:
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.
25“Commercial activity” is defined in section 2:
“commercial activity” means any particular transaction, act or conduct or any regular course of conduct that by reason of its nature is of a commercial character
26The main source of guidance about how to interpret “commercial activity” within the meaning of the SIA is the decision of the Supreme Court of Canada in Re Canada Labour Code, 1992 CanLII 54 (SCC), [1992] 2 S.C.R. 50.
27In that case, there had been an attempt to unionize some of the civilian employees of a military base operated in Canada by the United States of America.
28The Court majority noted section 5 of the SIA and stated:
The section, in combination with the definition of "commercial activity" in s. 2, raises two basic questions. First, what is the "nature" of the activity in question ‑‑ i.e., does employment at the base constitute commercial activity? Second, are the proceedings in this case ‑‑ a union certification application ‑‑ "related" to that activity? The two questions are, of course, interrelated, and neither can be answered in absolute terms. Certain aspects of employment at the base are commercial, but in other respects the employment relationship is infused with sovereign attributes. Accordingly, the certification proceeding affects both the commercial and sovereign aspects of employment at the base. The issue then becomes whether the effect on the commercial realm is sufficiently strong as to form a "nexus" so that it can truly be said that the proceedings "relate" to commercial activity. In my view, a nexus exists only between the certification proceedings and the sovereign attributes of labour relations at the base. The effect on commercial activity is merely incidental and cannot trigger the application of s.5 of the State Immunity Act.
29In regard to the “nature of the activity”, the Court commented:
One aspect of employment at the base is this bare contract of service entered into by each employee. This aspect carries with it a range of rights and obligations that normally attach to such a contract. For the employee, these include the right to be paid, the right not to be wrongfully terminated, etc. Obligations of the employee include diligence, obedience and honesty. These attributes of the employment relationship will fall at various points along a spectrum between purely "sovereign" and "commercial" activities. For example, the right to be paid is for the most part a commercial aspect of the employment relationship. On the other hand, the right to dismiss an employee without notice for security reasons is a sovereign attribute of the relationship.
It is true, no doubt, that a bare contract for employment services at the base is, in and of itself, generally a commercial activity. On that point, no real distinction can be made between a contract for the sale of goods to the base and a contract of employment services. Generally speaking, Canadian employees of foreign sovereign states are entitled to turn to our courts for enforcement of their employment contracts. This principle is recognized under the American immunity model: Segni v. Commercial Office of Spain, 650 F.Supp. 1042 (1986). As such, the employees in the present case would be entitled to sue, for example, for unpaid wages in the courts of Newfoundland. But, this is not to say that the employment contract falls exclusively within the commercial realm. It has sovereign attributes as well. For example, cases have recognized that foreign states are immune from wrongful dismissal claims when the dismissal was for national security reasons: Van der Hulst v. United States, Supreme Court of the Netherlands, No. 13.696, December 22, 1989, unreported; Kayiambakis v. United States, Norway, Eidsivating App. Ct., May 29, 1989, unreported.
30The case law following Re Canada Labour Code submitted by the applicant is discussed below. This jurisprudence confirms that it is necessary to consider the nature of the activity and the whether and how the proceedings relate to that activity.
31In Lovell v. New Zealand Tourism Board, 1992 CanLII 1502 (BC SC), the Supreme Court of British Columbia found that the commercial activity exemption applied and allowed an former employee to pursue an action that it described as “enforcement of a term of an employment contract providing for a severance payment on the plaintiff’s position being declared redundant.”
32In Kais v. Abu Dhabi Education Council et al, 2011 ONSC 75, the Superior Court of Justice of Ontario found that an action that it described as an alleged breach of an employment contract could continue. At paragraph 47, the Court said:
Adopting a contextual approach and considering both the nature of the activity and its purpose and relationship to the domestic court, as suggested in Canada Labour Code and Kuwait Airways, the commercial activity exception would apply to the facts of this case. This was an employment contract to assist math teachers in Abu Dhabi. The nature of the act is an alleged breach of contract. The subject of the litigation is the alleged breach of an employment contract and, if so, resulting damages. Even if the purpose of the alleged breach of contract could be connected to state purposes, such as security and immigration, any such connection is too distant to the subject of the litigation. As indicated, this action is not a challenge to any state ability to control such state issues as security and immigration but whether, in this case, this particular employment contract was breached (and whether the tort of misrepresentation is made out).
33In Smith v. Chin, 2006 CanLII 34347 (ON SC), the Court considered whether the commercial activity exception applied to an action concerning an “Economic Development Program” implemented by the Government of St. Kitts. At paragraphs 44-46, the Court said:
State immunity is preserved if the proceedings merely “touch on” or “incidentally effect” the commercial aspect of the activity. In other words, to deprive the defendant of state immunity, “the proceedings must not seriously impact or interfere with a sovereign aspect of the activity”. (Greco v. Holy See (State of the Vatican City), [2000] O.J No. 5293 at para. 2 (Super. Ct.), aff’g [1999] O.J. No. 2467 (Master); see also Butcher v. Saint Lucia, supra at para. 15, and Lorac Transport Ltd. v. Atra (The), supra at para. 22)
I agree with the plaintiffs that their court proceedings do not intrude upon the sovereign aspects of St. Kitt’s Program. The commercial aspect of the Program is the exclusive target of the plaintiffs’ court proceedings. The plaintiffs do not seek an order compelling St. Kitt’s to provide Mr. Smith with citizenship or passport privileges. The plaintiffs’ claim is limited to allegations of breach of contract, conspiracy, and misrepresentation related to what they believed to be legitimate investments in Life-Line made in accordance with St. Kitt’s Program.
As a consequence, s. 5 of the Act applies and the defendant St. Kitt’s is not immune from the plaintiffs’ claim. Since St. Kitt’s is not protected by state immunity, the defendant Allen is also not immune to the plaintiffs’ claim.
34Dorais c. Saudi Arabian General Investment Authority, 2013 QCCS 4498, the legal action in question was described by the Quebec Superior Court as follows at paragraph 1:
The plaintiff André R. Dorais avocats (“Dorais”), a firm of Montreal lawyers, alleges that it was retained by the Saudi Arabian General Investment Authority (“SAGIA”) in 2009 to promote Canadian investment in the Kingdom of Saudi Arabia. Dorais alleges that SAGIA and the government of the Kingdom, on behalf of whom SAGIA acted, breached the parties’ agreement and failed to pay Dorais’ fees and expenses amounting to $242,000. Dorais has sued to recover these amounts in this Court.
35At paragraphs 37-39 the Court said:
These cases demonstrate that where a plaintiff’s relationship with the foreign state (either as a former employee or a contracting party) and the parties’ legal proceedings do not raise issues touching upon the foreign state’s management of its internal affairs or its diplomatic activities, the matter is generally viewed as a commercial activity falling outside the scope of the SIA.
Two decisions illustrate the limits traced by the courts. In Maroc (Gouvernement du Royaume du) c. El Ansari, the Québec Court of Appeal considered whether an employee at the Moroccan Embassy in Ottawa could sue in this province for wrongful dismissal. The Court examined the plaintiff’s employment history and the nature of her duties and came to the conclusion that the proceedings related to a matter of internal management by the foreign state, not a commercial activity under s. 5 of the SIA. It was relevant for the Court that although the plaintiff was not a diplomat, she had been a Moroccan civil servant for over thirty years “subject to the relevant Minister [in Rabat] for all individual management measures”.
Conversely, in Roy v. South Africa, the Ontario Superior Court of Justice held that a Canadian employed as a clerk at the South African High Commission could sue in Ontario for wrongful dismissal, since her employment, and the reasons for dismissal, had no bearing on any of the defendant’s consular or sovereign functions.
36The Court found that Dorais’ engagement by the defendants was a commercial activity, not a governmental or sovereign activity, and that the defendants are not entitled to immunity from suit.
37In Zakhary v. United States of America, 2012 CanLII 15690 (CA LA), an Arbitrator found that a complaint of unjust dismissal against the Consulate General of the United States of America in Toronto, brought by a person described as a cashier, was not protected by state immunity because the commercial activity exception applied. On review by the Federal Court, the Arbitrator’s decision was overturned because the Court found that the commercial activity exception did not apply. In United States of America v. Zakhary, 2015 FC 335, 2015 F.C. 335, the Court said, at paragraphs 30-31:
The question of who works within an embassy, and whether they perform their responsibilities to the satisfaction of the foreign government, is not a commercial activity. It is not a commercial matter, such as hiring someone to repaint the interior or to repair the plumbing; rather employment within the embassy is integral to its operations and is immune from review in domestic courts. Nor can any principled distinction can be drawn between employment in the United States Consulate, in Toronto, and the United States Embassy, in Ottawa.
The nature of the functions and responsibilities of the employee, whether administrative, clerical or, as in this case, financial, do not limit the immunity. The immunity extends to the operations of the Consulate. The Court does not parse or dissect, within the walls of embassies or consulates, which functions are purely diplomatic, or which functions may be administrative. It is doubtful that such bright lines can be drawn, a further reason as to why the Court will not engage in a dissection of specific employment responsibilities within embassies or consulates.
38Bentley v. Consulate General of Barbados/Invest Barbados, 2010 HRTO 2258, is a case of this Tribunal (and referred to earlier in this Decision). In that case, the adjudicator found that the applicant was employed by both the consulate and a trade commission. Paragraphs 43-44 of the Decision state:
This 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.
In 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.
39In Bentley, it was found that the applicant was employed by both the consulate and the trade commission and the Application as against the consulate would necessarily involve issues of sovereign activity. In that case, the applicant’s employment with the trade commission was not as clearly a sovereign activity because the trade commission was involved in trade. However, since the applicant was employed by both, the adjudicator held that the commercial activity exemption did not apply.
40As noted earlier, in Bentley, the Tribunal did not receive any communication from the Department of Foreign Affairs and there was no Certificate as there is in the instant case. I have found that in the instant case, the applicant was employed by the Trade Commission, but that it is part of the consular post.
41In Bentley, the Tribunal discussed Greco v. Holy See (State of the Vatican City), [2000] O.J. No. 5293, another of the cases referred to in the applicant’s submissions, at paragraphs 39-41:
[I]n 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.
The 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.
The 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.
The nature of the allegations in the Application
42Turning now to the case at hand, the Application alleges discrimination in employment or in the performance of a contract for or of service, because of sex, sexual orientation, and age.
43The allegations as described by the applicant in the Application describe the applicant's employment up until the termination of her employment, which she says was a forced resignation due to a toxic work environment. She describes a series of incidents which she believes show that she was targeted by her employer, treated unfairly and falsely accused of inadequate performance of her duties. She alleges that the reason for this treatment was her sex and age. Many of the allegations related to the applicant's involvement in various trade shows and related events, and reports she prepared relating to trade issues.
44The applicant also makes allegations about inter-office conflicts about job roles and alleged preferential treatment of other employees as compared to her treatment.
45Her claim for damages includes compensation for lost wages in the period after the termination of her employment, but there is no claim for unpaid earnings before the termination.
46As discussed earlier, the Foreign Missions and International Organizations Act gives the force of Canadian Law to the Vienna Convention on Consular Relations. Article V of that Convention describes the nature of consular functions. It reads in part:
Consular functions consist in:
(a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;
(b) furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;
(c) ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;
47The applicant’s job duties according to the contract were set out earlier. Those job duties clearly included the sorts of functions identified in the Convention. Even if some of the applicant's job duties were not of that sort, and even if she did duties apart from those identified in the contract, the fact that her job duties included job duties identified as consular in nature means that the “nature of the activity” to which the Application relates is very largely concerned with consular functions which are sovereign in nature even if there is also a commercial aspect to them.
48The applicant suggests that the fact that she was worked under a contract of services rather than as an employee is relevant and suggests a commercial relationship. I do not see how the nature of the contract is relevant. What is relevant is the nature of the applicant's duties, whether these were performed under a contract of service or an employment contract.
49In addition, if it were to proceed, the Application would require evidence about the various job duties of the people involved. It would require evidence about reports that the applicant prepared or was involved with which were prepared for the purposes of advancing the interests of Mexico in Canada. The nature of the proceeding in this case therefore would necessarily intrude on the sovereign interests of the respondent.
50For these reasons, I find that the commercial activity exception in section 5 of the SIA does not apply. The respondent is protected by the immunity afforded to foreign states by the SIA.
DECISION
51The Application is dismissed.
Dated at Toronto, this 2nd day of September, 2015.
“Signed by”
Brian Cook Vice-chair