State Immunity and Employment Relations in Canada

Canadian Labour & Employment Law Journal, Vol. 18, No. 2, 2015

U of Melbourne Legal Studies Research Paper No. 716

31 Pages Posted: 22 Aug 2015

See all articles by Richard Garnett

Richard Garnett

University of Melbourne - Law School

Date Written: August 20, 2015

Abstract

Canada's federal State Immunity Act, 1985 grants to foreign states a presumptive immunity from actions in the Canadian courts, subject to important exceptions. One such exception is set out in section 5 of the Act, which applies when the proceedings relate to "commercial activity." This paper argues that Canadian courts and tribunals in labour and employment cases have been inconsistent in their interpretation of the scope of the exception for commercial activity, and thus in the extent to which they have been prepared to uphold foreign states' claims to immunity. Advocating for what is termed the "liberal" approach, as enunciated in the leading case of Re Canada Labour Code, the author discusses the case law to demonstrate the varying degrees to which this approach has been followed. His preference for the liberal approach, which focuses on the roles and responsibilities of the employee, is informed by a comparative analysis of American, European, and Australian legislation and jurisprudence. Ultimately, it is argued that state immunity in employment cases should generally be restricted to two situations: individual employee claims where the employee is a high-ranking diplomat, civil servant or military official with the foreign state; and collective employee claims brought against a foreign state employer in a highly sensitive location such as a military base, embassy or consulate.

Keywords: immunity, foreign state, employment, Canada

JEL Classification: K00, K31

Suggested Citation

Garnett, Richard, State Immunity and Employment Relations in Canada (August 20, 2015). Canadian Labour & Employment Law Journal, Vol. 18, No. 2, 2015, U of Melbourne Legal Studies Research Paper No. 716, Available at SSRN: https://ssrn.com/abstract=2648711

Richard Garnett (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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