Speaker's Corner: Amaratunga a reminder about obscure laws lawyers need to update themselves on

In a case that highlights the well-known proposition that it is what you don’t know that will hurt you, the Supreme Court recently dealt with an obscure feature of international law that prevented an employee in Nova Scotia from suing his employer for wrongful termination.

There’s no doubt Tissa Amaratunga thought he had a good job when he took a position with the Northwest Atlantic Fisheries Organization (NAFO) at its Dartmouth, N.S., headquarters. NAFO oversees international treaty obligations that preserve fishing resources in the northwest Atlantic Ocean on behalf of approximately two-dozen countries. NAFO is an intergovernmental organization. Several such organizations make Canada their home; the International Civil Aviation Organization in Montreal is one of the more famous of them. It is prestigious for a country to host these organizations and, as an enticement, governments typically offer them immunity from local laws. There is a federal statute called the Foreign Missions and International Organizations Act, and NAFO is the beneficiary of a specific immunity order made under that statute.

That was bad news for Amaratunga. There’s no doubt he thought that, along with his good job, he enjoyed the protection that Nova Scotia and Canadian laws grant to employees. Amaratunga was in for a rude shock. After NAFO fired him, Amaratunga sued it for wrongful dismissal. The Nova Scotia Court of Appeal dismissed his claim. The appeal court found the immunity order means just that: NAFO is immune from claims against it by its former employee even though that would leave Amaratunga with no ability to seek a remedy.

In Amaratunga v. Northwest Atlantic Fisheries Organization on Nov. 29, the Supreme Court upheld that conclusion. He could not sue for wrongful dismissal. In the court’s words, “it is an inevitable result of a grant of immunity that certain parties will be left without legal recourse, and this is a policy choice implicit in the legislation.” (The court didn’t shut Amaratunga out completely, though. It did allow him to sue NAFO to enforce the employer’s own termination policy.)

The narrow lesson to take from this case is people should accept employment with an intergovernmental organization with caution. The broader lesson is that just because people think they have a legal right does not mean they actually do.

With the barrage of information available today, people routinely feel that a careful online search will provide them with a good summary of their legal rights or that a conversation with a friend who has gone through a similar problem will complete the picture. But even in well-known areas of the law, every case turns on its own merits. In every case, the unique facts bring a distinct set of legal principles into play. Often, those principles do add up to a predictable legal result.
But sometimes, the result is different. If there is a core function for lawyers, it is to advise their clients as to their specific legal rights and responsibilities. That is necessarily a custom job every time. Clients often feel that such custom work is an unnecessary expense. The profession needs to explain why it is not only necessary but critical if the advice is going to be as accurate as possible.

This is also a cautionary tale for the profession. I doubt the average lawyer would have ever heard of the Foreign Missions and International Organizations Act. I know I hadn’t. If Amaratunga had sought legal advice when he was considering the job offer from NAFO, would the employment lawyer have thought to warn him about the risks of that job? This is the problem that always gives good lawyers insomnia. They can never be sure they have anticipated every possible pitfall and trap and researched every applicable rule, case, regulation, and statute. As a result, lawyers always know that any advice they give their clients is not, and cannot be, perfect.

But they can give advice to the best of their ability. That is why lawyers can never stop learning.  We cannot stop reading cases, participating in continuing legal education, speaking to colleagues or reading the legal press. If an employee of an intergovernmental organization sought legal advice today, I would hope the lawyer would warn about the risks of the job, including the restriction on suing the employer, after having kept an eye out for developments in the law and having read Amaratunga for that very reason. There will always be things you don’t know. What you can do is work to reduce the number of those things as much as possible.

Jonathan Rosenstein is a commercial and civil litigator at Pape Barristers Professional Corp. in Toronto.

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