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Published online by Cambridge University Press: 09 March 2016
The views expressed in this comment are not necessarily those of the Department of Justice or the Government of Canada.
1 United States of America v. Public Service Alliance of Canada (indexed as Re Canada Labour Code), [1992] 2 S.C.R. 3.
2 State Immunity Act, S.C. 1980-81-82, c. 95 (now R.S.C. 1985, c. S-18). For the legislative history of the Act, and a comparative analysis of the British State Immunity Act, 1978, c. 33 and the United States Foreign Sovereign Immunities Act, 28 U.S.C. § 1603 et seq., see Molot, H.L. and Jewett, M.L., “The State Immunity Act of Canada” (1982) 20 Canadian Yearbook of International Law 79.Google Scholar
3 S. 2 of the State Immunity Act defines “commercial activity” as “any particular transaction, act or conduct or any regular course of conduct that by reason of its nature is of a commercial character.” There are two components to this definition. On the one hand, it refers to a “regular course of conduct” that is commercial in nature. This envisages situations in which the foreign government conducts a business, such as a trading company, a commercial bank, or a shipping line. The other part of the definition refers to “any particular transaction, act or conduct” that “by reason of its nature” is commercial in character. It is this latter, transactional focus that is relevant here.
4 In Gouvernement de la République démocratique du Congo v. Venne, [1971] S.C.R. 997, a majority of the Supreme Court of Canada held that a foreign state could claim immunity from the courts of Quebec in relation to a dispute over the fees of an architect for its pavilion at Expo 67. In his dissenting judgment, Laskin, J. (as he then was) attacked the continued validity of an absolute rule of immunity. In Lorac Transport Ltd. v. The Atra, [1987] 1 F.C. 108, a case arising before the entry into force of the State Immunity Act, the Federal Court of Appeal held that the common law had evolved since Venne to endorse a restrictive scheme of immunity similar to that codified in the Act.
5 Under s. 3 of the United Kingdom State Immunity Act, 1978, contracts of employment are specifically excluded in the definition of “commercial transaction,” with the result that foreign states retain immunity with respect to such matters. However, in draft articles on the jurisdictional immunities of states and their property, the International Law Commission has considered treating individual contracts of employment as a separate category from commercial transactions, but with respect to which a foreign state will not enjoy immunity. See, e.g., Yearbook of the International Law Commission, vol. 1 in A/CN.4/SER.A/1984.
6 Canada Labour Code, R.S.C. 1985, c. L-2.
7 [1952] C.T.S. No. 14, Mar. 27, 1941. The Agreement established a lease for a period of 99 years. This lease was incorporated into the laws of Newfoundland by the American Bases Act, S.N. 1941, c. 12 and continued under the Terms of Union between Canada and Newfoundland in 1949 (Newfoundland Act, R.S.C. 1985, Appendix II, No. 32, Schedule, s. 18).
8 Federal Service Labor-Management Relations Act, 5 U.S.C. § 7103(3)(2)(i).
9 See Re Canada Labour Code, [ 1990] 1 F.C. 332.
10 [1953] C.T.S. No. 13.
11 R.S.C. 1985, c. V-2.
12 [1990] 1 F.C. 332 at 339.
13 647 F.ad 300 (2d Cir., 1981) at 309.
14 Supra note 9, at 347.
15 Ibid., at 347–48, 349.
16 Ibid., at 349.
17 Ibid., at 340.
18 Ibid., at 339.
19 The U.S. Foreign Sovereign Immunities Act, supra note 2, stipulates that “the commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.”
20 Supra note 9, at 339.
21 Ibid., at 338–39.
22 [1991] 2 S.C.R. 3 at 83.
23 Ibid., at 78.
24 Ibid., at 76.
25 For the Federal Court of Appeal statement on this point, see supra note 12, at 348.
26 [983] A.C. 244.
27 Supra note 22, at 73.
28 Ibid., at 74. Indeed; La Forest, J. questioned whether under U.S. law the courts are truly barred from considering the purpose of an activity. He cited De Sanchezv. Ranco Central de Nicaragua, 770 F.ad 1385 (1985), Rush Presbyterian-St. Luke’s Medical Center v. Hellenic Republic, 877 F.ad 574 (1989), and Joseph v. Office of Consulate General of Nigeria, 830 F.ad 1018 (1987) for the proposition that American courts continue to consider the purpose of an activity, despite “legislation that would seem to invite the contrary position.”
29 Ibid., at 73.
30 Ibid., at 70.
31 Bell Canada v. Quebec (Commission de la Santé et de la Sécurité du Travail, [1988] 1 S.C.R. 749 at 825 per Beetz, J., (part of a trilogy of cases including Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868,Google Scholar and Alltrans Express Ltd. v. British Columbia (Workers’ Compensation Board), [ 1988] 1 S.C.R. 897).
32 Supra note 22, at 81.
33 869 F.ad 75 (2d Cir. 1989).
34 Supra note 22, at 87.
35 Ibid., at 75.
36 Ibid., at 89.
37 Supra, note 13.
38 Supra, note 22, at 100.
39 Ibid., at 102–3.
40 Supra, note 22, at 107.
41 Ibid., at 108.
42 Ibid.
43 Ibid., at 109.
44 Ibid., at 110–11.
45 Ibid., al 87. La Forest, J. said that it was not his view that the courts of the United States would consider labour relations at a Canadian embassy or at a foreign military base to constitute a mere commercial activity.