Gowling v. United Nations University, 2015 HRTO 365

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Allison Gowling Applicant

-and-

United Nations University Respondent

-and-

Attorney General of Canada Intervenor

DECISION

Adjudicator: Leslie Reaume
Date: March 23, 2015 Citation: 2015 HRTO 365 Indexed as: Gowling v. United Nations University

WRITTEN SUBMISSIONS

Allison Gowling, Applicant Self-represented

United Nations University, Respondent and Attorney General of Canada, Intervenor Jacqueline Dais-Visca, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant alleges that he applied for employment as a “Secretary and HR Assistant” with the United Nations University (“UNU”). The applicant alleges that as part of the application process he was required to complete and submit a “personal history form” from the UNU’s website. The applicant alleges that certain questions which appeared on the form relating to gender, age, nationality, marital status, dependent children, disabilities and potential changes in citizenship, constitute a violation of the Code.

3A Notice of Application was served on the respondent on July 21, 2014. The respondent was required to file a Response by August 25, 2014.

4On August 7, 2014, the Tribunal received a letter from the Department of Foreign Affairs, Trade and Development enclosing a certificate granted under the authority of the Minister of Foreign Affairs which states as follows:

In accordance with paragraphs 11(b) and 11(e) of the Foreign Missions and International Organizations Act, I hereby certify under the authority of the Minister of Foreign Affairs that the United Nations University is the subject of the Privileges and Immunities Accession Order (United Nations), an order taken under section 5 of the Act, and therefore enjoys certain privileges and immunities including, under section 2 of the Order and section 2 of Schedule III of the Act, immunity from every form of legal process.

5The Tribunal issued a Case Assessment Direction (“CAD”) dated October 24, 2014 which contained the following directions:

In Amaratunga v. Northwest Atlantic Fisheries Organization, [2013] 3 SCR 866, 2013 SCC 66, the Supreme Court of Canada dealt with a similar issue. The immunity order in that case granted immunity to such extent as may be required for the performance of the organization’s functions. The Court permitted the claim against the organization to proceed in part. In order to determine the respondent’s claim to immunity in this case, the respondent is requested to provide a copy of the order referenced in the certificate and its submissions supporting dismissal of the application on the basis of immunity.

6A Request to Intervene was filed by the Attorney General of Canada (“AGC”) on November 5, 2014. The AGC also filed submissions responding to the legal issues raised in the CAD of October 24, 2014. The applicant did not appear to take a position on the intervention request. I accept the argument of the AGC that the Government of Canada has an obligation to ensure full compliance with the immunities and privileges granted to the United Nations. The AGC has provided submissions in accordance with my directions which have assisted in resolving this matter. Accordingly, the request to intervene is granted.

7The AGC cited the following documents and arguments which are relevant to the issues before me:

• Correspondence from the United Nations (“UN”) dated October 29, 2014, requesting that the Government of Canada intervene;

• Charter of the United Nations, 24 October 1945, 1 U.N.T.S. XVI which provides the General Assembly of the UN the authority to establish subsidiary organs, like the UNU and for organizational immunities;

• Convention on Privileges and Immunities of the United Nations, 13 February 1946, 1 U.N.T.S. 15, Article II, Section 2 which establishes the absolute immunity of the UN from “every legal process” unless immunity is expressly waived;

• Establishment of the United Nations University, GA Res. 2951 (XXVII), UN GAOR, 27th Sess., UN Doc. A/8924, (1972) 35., which establishes an international university under the auspices of the United Nations;

• Charter of the United Nations University, GA Res. 3081 (XXVIII), UN GAOR, 28th Sess., UN Doc. A/9149/Add.2, (1973), (amended by the UNGA on 21 December 2009 and 20 December 2013), which establishes the UNU as an autonomous organ of the General Assembly of the United Nations enjoying the status, privileges and immunities provided in Articles 104-105 of the Charter of the United Nations;

• Foreign Missions and International Organizations Act, S.C. 1991, c. 41 which establishes that Canada has taken the necessary steps to make the treaty obligation to provide immunity to international organizations like the UN part of the domestic law of Canada;

• Privileges and Immunities Accession Order (United Nations), C.R.C., c. 1317, which was requested by the Tribunal and establishes that the UNU, a subsidiary organ of the United Nations, enjoys absolute immunity from every legal process in Canada;

• Agreement Between Government of Canada and the United Nations University Concerning the United Nations University International Network on Water, Environment and Health, Canada and United Nations University, 20 September 1996, Can. T.S. 1996 No. 27., which establishes that Canada has taken the necessary steps to make the treaty obligation part of the domestic law of Canada;

• Certificate from the Department of Foreign Affairs, Trade and Development issued under the Foreign Missions and International Organizations Act, sections 11(b) and 11(e), dated August 6, 2014, which establishes the UNU’s absolute immunity from every legal process in Canada, including the proceeding before the Tribunal; and

• North Atlantic Fisheries Organization Order, SOR/80/64, current to October 14, 2014 which was the subject of the Supreme Court’s decision in Amaratunga. In contrast to the Privileges and Immunities Accession Order (United Nations) which provides for absolute immunity from every legal process, the North Atlantic Fisheries Organization Order provides immunity “to such extent as may be required for the performance of its functions…”

8The AGC argues that these documents establish that the UNU is a subsidiary organ of the United Nations and that the immunity of the UNU from the proceeding before this Tribunal is absolute. The AGC also argues that the absolute immunity of the UNU can be distinguished from the “functional immunity” dealt with by the Supreme Court in Amaratunga under the Northwest Atlantic Fisheries Organization Order.

9Portions of the applicant’s submissions are non-responsive to the legal issues raised by the AGC and as a result, I have not found it necessary to set them out in this Decision. The applicant argues however, that the UNU is engaged in a commercial activity and therefore is not entitled to immunity in accordance with the provisions of the State Immunity Act, R.S.C. 1985, c. S-18.

10The AGC argues in response to the applicant’s submissions that the kind of immunity contemplated by the State Immunity Act is not engaged in this case. The AGC argues that state immunity is different from the specific form of immunity granted to the UNU as an international organization. The AGC argues that the issue in this case is whether the immunity granted to the UNU is absolute or limited.

11In Amaratunga, at paragraphs 27 through 31, the Supreme Court made some general comments highlighting the differences between state immunities and immunities granted to international organizations:

According to a general rule of customary international law, states enjoy immunity from the jurisdiction of other states: Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), I.C.J. judgment (February 3, 2012), at para. 56; International Law Commission, “Jurisdictional immunities of States and their property”, in Yearbook of the International Law Commission 1980 (1981), vol. II, Part Two, 137, pp. 147-48. The International Court of Justice has held that state immunity “derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order”: Jurisdictional Immunities of the State, at para. 57. The United Nations Convention on Jurisdictional Immunities of States and Their Property (2004) is the first attempt to codify the rules relating to state immunity in a general international convention, but it has not yet entered into force.

Like other jurisdictions, Canada has legislated on state immunity. Parliament has enacted the State Immunity Act, R.S.C. 1985, c. S-18, which confers immunity from the jurisdiction of Canadian courts on foreign states, except in proceedings that relate to a “commercial activity”. Canada has adopted a restrictive approach to state immunity and rejected the absolute approach under which states had historically enjoyed immunity in all circumstances: J. H. Currie, C. Forcese and V. Oosterveld, International Law: Doctrine, Practice, and Theory (2007), at pp. 494-501; see also Kuwait Airways Corp. v. Iraq, 2010 SCC 40, [2010] 2 S.C.R. 571.

In the case of international organizations, unlike that of states, the prevailing view at present is that no rule of customary international law confers immunity on them. International organizations derive their existence from treaties, and the same holds true for their rights to immunities: H. Fox, The Law of State Immunity (2nd ed. 2008), at pp. 725-26. Such an organization must operate on the territory of a foreign state and through individuals who have nationality and is therefore vulnerable to interference, since it possesses neither territory nor a population of its own: Fox, at p. 724. This reality makes immunity essential to the efficient and independent functioning of international organizations. It also shapes the immunities and privileges that are granted to international organizations. Such immunities and privileges are created through a complex interplay of international agreements and the national law of host states.

International organizations vary greatly in size, sphere of activities and powers. This is reflected in the source and the scope of their immunities and privileges. For example, the Convention on the Privileges and Immunities of the United Nations, 1 U.N.T.S. 15, and the Convention on the Privileges and Immunities of the Specialized Agencies, 33 U.N.T.S. 261, contain detailed provisions conferring broad immunities and privileges on the United Nations and its agencies. In addition to international conventions granting uniform immunities and privileges that apply in all member states, the most important international organizations such as the United Nations and its agencies also negotiate exhaustive and detailed headquarters agreements with host countries: see, e.g., Headquarters Agreement between the Government of Canada and the International Civil Aviation Organization, Can. T.S. 1992 No. 7, and the Supplementary Agreements of 1999 and 2013.

In the case of smaller international organizations, each organization must enter into an agreement with the host state regarding the immunities to be enjoyed in that state’s territory. Such is the case for NAFO. Article II of the Convention provides that NAFO is to come to an agreement with the contracting party (i.e. Canada) regarding the immunities and privileges it will enjoy in the territory of that party. NAFO and Canada reached an agreement in this regard, and it is reflected in the NAFO Immunity Order.

12The main issue before the Supreme Court in Amaratunga was the interpretation of the limiting language in the immunity granted to the North Atlantic Fisheries Organization. I agree with the AGC, that the documents and arguments they have presented establish that the UNU is a subsidiary organ of the United Nations and that the immunity of the UNU from this legal proceeding is absolute.

13Accordingly, this Application is dismissed.