No State Immunity for South Africa in Wrongful Dismissal Suit

Roy v. South Africa, 2013 ONSC 4633 (CanLII) is another in a recent series of Canadian court decisions involving state immunity in the employment context. See my previous posts here and here. 

The plaintiff was employed by the High Commission for South Africa in Ottawa since 1988; first as an administrative clerk, then as a consular clerk and most recently as assistant consular for immigration. In the latter senior role, she was responsible for the intake and processing of all visa and permit applications, diplomatic protocol, maintenance orders, pension and outstanding revenue matters, custom declarations, birth, marriage and death certificate process, e-mail inquiries and personal interviews. Due to consolidation of various consular services from Ottawa to Toronto, the plaintiff was terminated  in 2010. A letter of reference dated January 13, 2012 was on the letterhead of High Commission for the Republic of South Africa.

 The plaintiff sued for wrongful dismissal and issued a Statement of Claim on April 4, 2012.  As it appears on the certificate issued under the State Immunity Act, the Statement of Claim was “transmitted to the appropriate authority of the Government of the Republic of South Africa on May 11, 2012.”

Following numerous exchanges of correspondence, counsel for South Africa took the position that the named defendants were not legal entities and had no capacity to be sued. Despite repeated requests from plaintiff’s counsel, no defence was delivered. Ultimately, the defendants were noted in default.

A motion for default hearing was scheduled, but adjourned after the defendants brought a motion — state immunity grounds— to strike the Statement of Claim under Rule 21.01(1)(b) of the Ontario Rules of Civil Procedure  as disclosing no reasonable cause of action; or, alternatively, staying or dismissing the action under Rule 21.01(3)(a) and s.106 of the Courts of Justice Act on the ground of lack of jurisdiction over the subject matter of the action.  If successful on his motion to set aside, and unsuccessful on the other two claims for relief, defendants’ counsel sought an order allowing the defendants additional time for the filing of a defence to the action.

Tranmer J. granted the order setting aside the noting in default, due to a lack of demonstrated prejudice to the plaintiff. However, the motion judge dismissed the defendants’ motion to strike pleadings or stay or dismiss the action and rejected the state immunity arguments.

Justice Tranmer at the outset rejected oral submissions of both parties’ counsel that affidavit evidence is allowed on a Rule 21.01(2)(b) motion, noting the plain reading of the rule that prohibits reliance on affidavit evidence. The learned judge adds:

 [39]                        The law is clear that I must take the facts alleged in the Statement of Claim as true unless they are patently ridiculous or incapable of proof. The court should read the pleadings generously making allowances for drafting deficiencies. The essential question on this motion is whether it is plain and obvious that the pleadings disclose no reasonable cause of action (Transamerica Life v. ING [2003] O.J. No. 4656, para. 38, 36). The relief sought will only be granted if it is clear, or plain, obvious and beyond doubt that the plaintiff cannot succeed (Telezone v AG 2007 CanLII 52788 (ON SC), (2007), 88 O.R. (3d) 173, para.25).

Based upon the pleadings, the motion judge declined to strike the Statement of Claim on the ground that the named defendants are non-legal entities without capacity to be sued.

With respect to state immunity and the commercial activity exception, Justice Tranmer held:

 [51]                        Under section 3 of the State Immunity Act, a foreign state is immune from the jurisdiction of any court in Canada.  Section 5 of the Act provides an exception to this community “in any proceedings that relate to any commercial activity of the foreign state.”

[52]                        I have reviewed the cases relied upon by counsel most carefully. They are cited at Schedule A to these my reasons. The onus is on the plaintiff to establish that the commercial activity exception applies (Greco; DCMA).

[53]                        The cases indicate that I must consider, firstly, what is the nature of the activity in question and secondly, are the proceedings in the case related to that activity.

[54]                        The cases indicate that the commercial activity exception does not apply to certification proceedings (Can. Labour Code; DCMA), wrongful dismissal claims arising for security reasons (Can. Labour Code) or touching management of personnel issues (Greco), or employees holding the status of consul general appointed to establish a consulate for St. Lucia in Toronto, to be St. Lucia’s principal representative in Toronto and to be responsible for carrying on all normal consular activities in Toronto (Butcher).

[55]                        The cases indicate that the commercial activity exception does apply to an employee who is a cashier, simply collecting fees and scanning applications (Zachary), an employee hired to assist math teachers in the schools of a foreign state (Kais), to enforce money owed under a contract of employment (Greco), and to enforce money owed under a contract that required severance payment to be made upon the plaintiff’s position being declared redundant (Lovell).

[56]                        When I consider the plaintiff’s description of her employment at paragraph 7 of the Statement of Claim and her characterization of it as a senior professional position at paragraph 28c, I find that she is clearly not an employee in the same role as the plaintiff in Butcher (para.18). The reasons given for the termination are clearly not security based, nor do they indicate a situation as existed in Greco, as particularly described by Justice Charbonneau at paragraph 6 of his decision.  I find that the allegation that the plaintiff was targeted for termination because of illness does not touch on any sovereign affair of the Republic of South Africa, but rather is an employee issue most closely related to commercial activity. The same can be said for the reason given for the termination, namely that immigration and consular services have been largely consolidated.

[57]                        I find it is not clear, plain or obvious and beyond doubt, that the plaintiff cannot succeed in her claim.

The court reached a similar conclusion with respect to the defendants’ Rule 21.01(3)(a) and s.6 Courts of Justice Act motion to strike on the grounds the court has no jurisdiction over the subject matter of the action. Referring to the affidavit evidence filed, Tranmer J. writes,

 [60]                        The materials indicate that the plaintiff’s T4s were issued by South African High Commission and the letter of termination and a letter of reference were authored by High Commission for the Republic of South Africa. That being the case, I cannot find that it is plain and obvious the named defendants are not legal entities.

[61]                        On the question of sovereign immunity and the commercial activity exception, Mr. Hofley emphatically points out there is inconsistency between the allegations made in the Statement of Claim concerning the plaintiff’s job responsibilities and those made in her affidavit where, he says, she seeks to minimize her job responsibilities to simply those of the clerical nature. In her affidavit, she sets out that her position was an administrative position. She states that she did not have access to sensitive or diplomatic materials. She says that she was not a diplomat or a civil servant of the Government of the Republic of South Africa. She points out that she was not allowed into the high commission unless in the company of a foreign services officer. She said she did not participate in the creation of government policy or its administration. She carried out directions. She was not privy to political deliberations. She could not speak for the government in its decision-making, lobbying or legislative work. Attached to her affidavit is a letter of reference provided to her by the High Commission for the Republic of South Africa.  It states that her role was an administrative and client service driven role. Her tasks included receiving, capturing, and dispatching applications for visa, work and study permits; assisting the consular attache with civic matters relating to passport applications, birth registration, obtaining of birth, death and/or marriage certificates for South African citizens living in Canada. She also answered telephones, directed calls and messages; compiled, copied, sorted and filed records pertaining to the above noted. She operated office machines, such as photocopiers. She also sorted and routed incoming mail and forwarded correspondence and prepared outgoing mail on behalf of the consular attaché. Also, she was given the responsibility to liaise with the Canadian government on protocol issues and made travel arrangements for office personnel.

[62]                        Based on this evidence, I cannot find that it is clear, plain, obvious and beyond doubt that the plaintiff would not fall within the commercial activity exception contemplated by the State Immunity Act.

Hopefully the Supreme Court of Canada will clarify the scope of the commercial activity exception in the State Immunity Act in Tissa Amaratunga v. Northwest Atlantic Fisheries Organization, a body corporate (see my case summary here).

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