



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



United Mexican States v. British Columbia (Labour
  Relations Board),









2015 BCCA 32




Date: 20150130

Docket:
CA041589

Between:

United Mexican
States and Consulado General
de Mexico en Vancouver

Appellants

(Petitioners)

And

British Columbia
Labour Relations Board, Certain Employees of
Sidhu & Sons Nursery Ltd., Sidhu & Sons Nursery Ltd., and United
Food and Commercial Workers International Union, Local 1518

Respondents

(Respondents)




Before:



The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Harris

The Honourable Mr. Justice Willcock




On appeal from:  An
order of the Supreme Court of British Columbia,
dated January 15, 2014 (
United Mexican States v. British Columbia
(Labour Relations Board)
, 2014 BCSC 54, Vancouver Docket S132385).




Counsel for the Appellants:



P.A. Gall, Q.C. &
  L.J. Wihak





Counsel for the Respondents BC Labour Relations Board:



D.W. Garner





Counsel for the Respondents United

Food and Commercial Workers International Union, Local
  1518:



C.G. Buchanan





Place and Date of Hearing:



Vancouver, British
  Columbia

December 2, 2014





Place and Date of Judgment:



Vancouver, British
  Columbia

January 30, 2015









Written Reasons by:





The Honourable Mr. Justice
  Harris





Concurred in by:





The Honourable Mr. Justice
  Groberman

The Honourable Mr. Justice
  Willcock








Summary:

Certain Mexican workers in a
union representing agricultural workers applied to the British Columbia Labour
Relations Board to cancel the unions certification, following a representation
vote. The union filed a complaint with the Board, arguing, inter alia, that
Mexico had improperly interfered with the representation vote, within the
meaning of s. 33(6)(b) of the Labour Relations Code, such that the vote
was unlikely to disclose the true wishes of the union employees. Mexico raised
a preliminary objection before the Board, arguing that the Board was barred by
the doctrine of state immunity, as codified in s. 3(1) of the State
Immunity Act, from adjudicating in relation to its conduct and was therefore
prohibited from making a finding that it had engaged in improper
interference. Held: Appeal dismissed. A finding of improper interference
under s. 33(6)(b) of the Code does not amount to an exercise of
jurisdiction over the individual or organization that engaged in improper
interference. That individual or organization is neither directly nor
indirectly impleaded by such a finding. The doctrine of state immunity
therefore does not apply.

Reasons
for Judgment of the Honourable Mr. Justice Harris:

Introduction

[1]

This is an appeal from the dismissal of a judicial review petition
brought by the United Mexican States and Consulado General de Mexico en
Vancouver (Mexico). The judicial review concerned the scope of state immunity
codified in the
State Immunity Act
, R.S.C. 1985, c. S‑18 [
SIA
].
The issue arose out of a decision of the British Columbia Labour Relations
Board (the Board) in the context of an application to decertify the United
Food and Commercial Workers International Union, Local 1518 (the Union)
as the bargaining agent for a group of agricultural workers. The Board
concluded that state immunity did not prevent it from considering and making
findings regarding Mexicos conduct for the purpose of deciding whether a
representation vote was unlikely to disclose the true wishes of the employees
in the Union because of improper interference by Mexico. The chambers judge
agreed.

[2]

This appeal also raised the question of whether the
Vienna Convention
on Consular Relations
, 24 April 1963, 596 U.N.T.S. 261 [
Vienna
Convention
],

precludes the Board from hearing the voluntary
testimony of former consular employees of a state without the consent of that
state. The Board concluded that it could receive that evidence. The chambers
judge agreed.

[3]

Since the hearing of the judicial review, the Board has considered the
merits of the decertification application, including receiving the evidence from
the consular employees. I am satisfied that this issue is moot, given that a
primary purpose of the immunity provided to consular employees is to protect
confidentiality and that protection has now been lost. Accordingly, I will
focus in these reasons only on the state immunity doctrine.

[4]

At the outset, it is important to emphasize that the issue on this
appeal is the extent of state immunity provided by the
SIA.
Section 3(1)
of the
SIA
is the critical section. It provides:

3. (1) Except as provided by this
Act, a foreign state is immune from the jurisdiction of any court in Canada.

[5]

I emphasize that the issue is the extent of state immunity because, in
my opinion, Mexico seeks to expand the scope of state immunity by reference to
the related, but different, doctrine of act of state. As I will explain, the
doctrine of act of state may confer a subject matter immunity that will lead a
court to decline to adjudicate matters involving the sovereign acts of foreign
states even in circumstances where there is no state immunity under the
SIA.
In this case, however, Mexico has not argued at any stage in the
proceedings that the Board should decline to consider its conduct on the
independent ground that its acts are also protected by the doctrine of act of
state. Accordingly, the only question on this appeal is whether the Board, in
considering the conduct of Mexico, exercised jurisdiction over it contrary to
the protection provided by s. 3(1) of the
SIA.

[6]

For the reasons that follow I would dismiss the appeal.

Background

[7]

A detailed background of the events leading to these proceedings is
contained in the decision below:
United Mexican States v. British Columbia
(Labour Relations Board)
, 2014 BCSC 54. For the purposes of this appeal, it
is necessary to highlight only the following.

[8]

The Union is the certified bargaining agent for workers employed by
Sidhu & Sons Nursery Ltd. (the Employer), an agricultural nursery and
farming business in British Columbia. The Employer hires its workers through
the Federal Governments Seasonal Agricultural Workers Program (SAWP), a programme
based on bilateral agreements between Canada and foreign governments, including
Mexico. Under SAWP, Mexico is responsible for selecting and approving the
citizens who will participate in the programme. It may repatriate its citizens
or terminate their participation in SAWP at any time. Mexican workers were
hired by the Employer, but not all members of the Union were Mexican; some came
from other countries, it appears.

[9]

Following a representation vote, on April 11, 2011, certain
employees of the Union (the Employees) applied to the Board to decertify the
Union pursuant to s. 33(2) of the
Labour Relations Code
, R.S.B.C.
1996, c. 244 [
Code
].

[10]

On April 19, 2011, the Union filed a complaint against Mexico, the
Employer, and the Employees, seeking the dismissal of the decertification
application on the basis that Mexico had engaged in: (a) unfair labour
practices, contrary to ss. 6 and 9 of the
Code
;

and (b) improper
interference, within the meaning of s. 33(6)(b) of the
Code
, such
that the representation vote was unlikely to reflect the true wishes of the
employees in the Union. The Union alleged that Mexico employed a policy of
preventing workers who supported the Union from returning to Canada or from
working in unionized workplaces.

[11]

Mexico raised a preliminary objection before the Board, claiming state
immunity from the Boards jurisdiction under s. 3(1) of the
SIA
. In
its February 1, 2012, decision on this issue, the Board found that it
lacked jurisdiction to require Mexico to participate as a party in the
proceedings and that it could not make any orders against Mexico. Accordingly,
it dismissed the Unions unfair labour practices complaint. The Board held,
however, that it could consider Mexicos conduct insofar as any improper
interference by Mexico affected the exercise of its discretion to cancel or
refuse to cancel the certification arising from s. 33(6) of the
Code
:
Re Sidhu & Sons Nursery Ltd.
, BCLRB No. B28/2012 at
paras. 4647.

[12]

Following that decision but before the decertification hearing, the
Union informed the Board and remaining parties that it intended to call former
consular employees of Mexico to testify as to Mexicos SAWP policy. Mexico then
made submissions asserting that the Board was barred from hearing the testimony
of the former employees by the
Vienna Convention
, and that the
SIA
prevented
it from making any legal or factual findings of improper interference by Mexico
on the basis of their testimony.

[13]

On February 23, 2012, the Board concluded that it could hear the
evidence of the former consular employees if provided voluntarily, and started the
decertification application, during which those former employees testified.

[14]

Subsequent to the decertification hearing but before a decision was
rendered, Mexico again argued that the Board was barred by state immunity from
inquiring into Mexicos conduct for the purposes of an improper interference
analysis under s. 33(6)(b) of the
Code
, and from making any legal
or factual findings in relation to Mexicos conduct. It asked the Board to rule
on this issue prior to deciding on the decertification application.

[15]

The Board ruled on September 21, 2012, that the
Vienna
Convention
prevented it from hearing the testimony of the former consular
employees, but that it was not barred by the
SIA
from making findings of
fact based on other admissible evidence concerning Mexico in relation to the
allegations of improper interference:
Re Sidhu & Sons Nursery Ltd.
,
BCLRB No. B194/2012.

[16]

All parties, including Mexico, applied for reconsideration of that
decision. On March 7, 2013, the Board issued its decision in which a
majority held that the Board was neither precluded from hearing the testimony
of the former consular employees, so long as they testified voluntarily, nor
from making findings in relation to whether Mexicos conduct amounted to
improper interference, within the meaning of s. 33(6)(b) of the
Code
:
Re Sidhu & Sons Nursery Ltd.
, BCLRB No. B54/2013.

[17]

Mexico then applied for judicial review of the reconsideration decision,
which was dismissed by Madam Justice Warren in the court below.

The Chambers Judgment

[18]

Madam Justice Warren decided that the
SIA
did not preclude the
Board from inquiring into, and making factual or legal findings in relation to,
Mexicos conduct for the purpose of determining whether it had engaged in
improper interference. In doing so, the Board was not exercising jurisdiction
over Mexico contrary to s. 3(1) of the
SIA.
Mexico was no longer a
party to the proceedings, no orders could be made against it, and no finding
was made that it had violated the
Code.
She also held that nothing
prevented former consular employees of Mexico from voluntarily giving evidence,
even in the absence of a waiver of immunity by Mexico. In the result, she
dismissed the petition.

[19]

The chambers judge reasoned that a finding by the Board of improper
interference under s. 33(6)(b) is different in nature from a finding that
someone has engaged in unfair labour practices and thereby violated the
Code.
At para. 61, she said:

[61]       the phrase improper
interference is only referenced in s. 33(6)(b), there is no express
prohibition against conduct amounting to improper interference, and a finding
of improper interference for the purpose of s. 33(6)(b) is not a finding
that the
Code
has been violated.

[20]

With respect to the nature of a finding of improper interference under
s. 33(6)(b), Madam Justice Warren held that such a finding is merely a
basis upon which the Board may dismiss a decertification application without
regard for the result of a representation vote and does not constitute a
finding that the
Code
has been violated: at para. 66, Madam
Justice Warren went on to hold:

[67]      The conclusions of
the majority in the Reconsideration Decision regarding the nature of the
Boards jurisdiction under s. 33(6)(b) have not been shown to be patently
unreasonable. In summary, a finding of improper interference under s. 33(6)(b)
of the
Code
is unlike a finding that a party has engaged in unfair
labour practices. It is not a declaration that a person has breached the
Code
.
Rather, it is a finding that may result in a decision by the Board to refuse to
decertify a union notwithstanding the outcome of a representation vote. This is
a consequence that has legal effect on the employer, the employees, and the
union.
There is no legal consequence for any other person who is found to
have improperly interfered
.

[Emphasis added.]

[21]

The chambers judge next considered the scope of the immunity conferred
by s. 3(1) of the
SIA
, which as noted above, reads, Except as
provided by this Act, a foreign state is immune from the jurisdiction of any
court in Canada. She stated the issue before her in this way:

[68]      The question, then, is
whether the immunity conferred by s. 3(1) of the
SIA
precludes the
Board from considering and making findings regarding Mexicos conduct in a
decertification application to which Mexico is not a party, in which no remedy
is sought against Mexico and no claim is advanced against any of Mexicos
property, and as a result of which Mexico is exposed to no legal consequence.

[22]

After a review of Canadian and international jurisprudence on the
doctrine of state immunity, the chambers judge held that the natural or
ordinary meaning of s. 3(1) is that Canadian courts may not embark upon
proceedings that could affect a foreign states legal rights, by impleading the
state, directly or indirectly, or attacking its property, unless one of the
exceptions provided elsewhere in the
SIA
applies: at para. 98. Put
another way, [i]t is the subjection of [state] conduct to the control of a
foreign court that is precluded by s. 3(1) of the
SIA
: at para. 121.

[23]

Ultimately, Madam Justice Warren held that the
SIA
did not
preclude the Board from inquiring into or making findings relating to whether
Mexico had engaged in improper interference because Mexico was not subject to
the control of the Board and remained free to administer SAWP in whatever
manner it deemed appropriate: at para. 125. She stated, in summary:

[133]    It is one thing for Canadian courts to refrain from
imposing Canadian labour law on a foreign employer if necessary to avoid
interfering with a foreign states sovereign functions. It is quite another
thing to ignore conduct of a foreign state that is relevant to the imposition
of Canadian labour law on a Canadian employer. In my view, a determination by
the Board that Mexicos conduct has legal consequences for Canadian employers
and their employees would not interfere with Mexicos autonomy. Such a finding,
if made, would not purport to regulate, change, or interfere with Mexicos
conduct. It would merely acknowledge that Mexicos conduct can have
consequences for others under Canadian law.

[134]     In other words, it is
accepted that Canadian courts and tribunals cannot purport to regulate the
sovereign conduct of a foreign state. What is not accepted is the notion that
the mere inquiry by a Canadian court or tribunal into the conduct of a foreign
state in proceedings involving other parties, where no jurisdiction is asserted
over the foreign state, where the state is not impleaded, where there is no
possibility of any remedy being issued against the state, and where the states
legal interests are not imperiled, would constitute the regulation of the
foreign state or in any way interfere with its sovereign functions or
authority.

Issue on Appeal and Mexicos Position

[24]

The issue in this appeal is whether, by finding that Mexicos actions
constituted improper interference within the meaning of s. 33(6)(b) of
the
Code
, the Board exercised jurisdiction over Mexico, contrary to
s. 3(1) of the
SIA
.

[25]

Mexico submits that the Board did assume jurisdiction over it. Mexico
contends that the doctrine of state immunity is not limited to instances where
the state is a party to the proceedings and where there is some legal remedy
sought against the state. It argues that the chambers judge failed to recognize
that the doctrine of state immunity precludes a domestic
tribunal from adjudicating the conduct of a foreign state vis‑à‑vis
its own citizens under domestic law regardless of whether a remedy is imposed
on the foreign state for a breach of domestic law. Mexico asserts that the
Boards finding regarding unlawful interference amounts to a finding that
Mexico violated the
Code
and that this is a result barred by the
doctrine of state immunity. It contends further that the Board, in effect, took
jurisdiction over it by indirectly impleading Mexico and making findings that
implicate its legal interests.

Standard of Review

[26]

In an appeal from a judicial review, this Court must first determine
whether the reviewing court selected the correct standard of review and then
whether it correctly applied that standard:
Henthorne v. British Columbia
Ferry Services Inc.
,

2011 BCCA 476 at paras. 73 and 74. As
a result, this Court will for practical purposes be in the same position as it
would be if it were reviewing the decision of the tribunal directly, since no
deference is to be afforded to the reviewing court:
Henthorne
at
para. 79.

[27]

The Boards decisions are subject to the standards of review set out in
s. 58(2) of the
Administrative Tribunals Act
, S.B.C. 2004, c. 45
[
ATA
]. The preferred approach for determining whether a matter falls
within the exclusive jurisdiction of a tribunal and attracts the standard of
patent unreasonableness under s. 58(2)(a), or does not and attracts the
standard of correctness under s. 58(2)(c) is simply to examine whether
the privative clause [in the tribunals enabling statute] covers the matters
in issue:
Kerton v. Workers Compensation Appeal Tribunal
, 2011 BCCA 7
at para. 29. This analysis is required even where a tribunal is
interpreting its home statute, as was the case in
Kerton
.

[28]

Section 139 of the
Code
provides that the Board has
exclusive jurisdiction to decide a question arising under [the] Code. As the
chambers judge correctly held, the scope of state immunity under the
SIA
is a matter that is clearly outside of the Boards exclusive jurisdiction: at
para. 56. Consequently, the standard of correctness applies, pursuant to
s. 58(2)(c) of the
ATA
. This Court must therefore determine whether
the chambers judge was correct to find that the Board itself was correct in its
conclusions as to the scope of state immunity under the
SIA
.

[29]

Insofar as the Boards conclusions relating to the
Code
are
concerned, and in particular, its conclusions regarding the legal character and
consequences of a finding of improper interference under s. 33(6)(b), the chambers
judge correctly found patent unreasonableness to be the applicable standard of
review: at para. 57. These are clearly questions arising under [the] Code.
For this Court, the question then is whether in applying the patent unreasonableness
standard, the chambers judge reached the correct result. Again, no deference is
owed to the court below.

Discussion

[30]

It is necessary at the outset to understand what it is that the Board
did in examining the conduct of Mexico for the purpose of determining whether
its conduct constituted improper interference such that the representation vote
did not disclose the true wishes of the Unions employees. This inquiry is
necessary because it is critical to Mexicos argument that the finding of
improper interference by the Board is effectively a legal declaration that
Mexico violated the
Code
.

[31]

The context in which the issue arises is the Unions unfair labour
practice complaint. That complaint is rooted in ss. 6 and 9 of the
Code
,
which provide in part as follows:

6.   (1) Except
as otherwise provided in section 8, an employer or a person acting on behalf of
an employer must not participate in or interfere with the formation, selection
or administration of a trade union or contribute financial or other support to
it.

...

9.   A person must not use coercion or
intimidation of any kind that could reasonably have the effect of compelling or
inducing a person to become or to refrain from becoming or to continue or cease
to be a member of a trade union.

[32]

These sections are in aid of protecting the fundamental right of
employees enshrined in s. 4 of the
Code
,

which stipulates
that every employee is free to be a member of a trade union and to participate
in its lawful activities. Where the Board concludes that there has been an
unfair labour practice, it may make orders against the person committing the
practice: s. 14. The
Code
requires notice to be given to any person
alleged to have committed an unfair labour practice.

[33]

In this case, the Union complaint was made in the context of the
Employees decertification application governed by s. 33 of the
Code
.
Section 33 allows bargaining rights to be revoked if certain statutory
preconditions are met, including that at least 45% of the employees in the
bargaining unit sign a decertification application. If this occurs, the Board
must order that a representation vote be conducted: s. 33(2). A majority
of the employees casting a ballot in the representation vote must support the
application for decertification: s. 33(4). Section 33(6), however,
confers a discretion on the Board to refrain from cancelling the certification.
That section reads as follows:

33. (6)  If an
application is made under subsection (2), the board may, despite subsections
(2) and (4), cancel or refuse to cancel the certification of a trade union as
bargaining agent for a unit without a representation vote being held, or
without regard to the result of a representation vote, in any case where

(a)  any
employees in the unit are affected by an order under section 14, or

(b)  the board considers that because of
improper interference by any person a representation vote is unlikely to
disclose the true wishes of the employees.

[34]

As the chambers judge noted, the
Code
expressly prohibits unfair
labour practices, which are defined in s. 6.
O
f particular relevance here is s. 6(3)(d),
which  provides that an employer or a person acting on behalf of an employer
must not

(d)  seek by intimidation, by dismissal,
by threat of dismissal or by any other kind of threat, or by the imposition of
a penalty, or by a promise, or by a wage increase, or by altering any other
terms or conditions of employment, to compel or to induce an employee to
refrain from becoming or continuing to be a member or officer or representative
of a trade union[.]

[35]

Unlike a finding that a person has engaged in an unfair labour practice,
which necessarily involves a finding of a breach of the
Code
, a finding
of improper interference for the purpose of s. 33(6)(b) is not a finding
that the
Code
has been violated. That phrase is only referred to in
s. 33(6)(b) and there is no express prohibition against conduct amounting
to improper interference. It seems to me that the purpose of a finding of
improper interference by a person is simply a basis on which the Board can
conclude that the vote does not disclose the true wishes of the employees. No
orders of any kind can be issued against such a person, whose only connection
to the proceeding is the conduct found to constitute improper interference. And
because no orders may issue against them, there is no requirement on the Board
to give the person notice of the proceedings. The finding has no legal effect
and, in my view, does not affect their legal interests.

[36]

The majority of the panel in the Board reconsideration decision under
review observed that [t]he parties who have a direct and legally material
interest in [a decertification application] are those bound by the
certificationthe employees, the employer and the certified trade union: at para. 25.
The majority summarized the Boards jurisdiction under s. 33(6)(b) as
follows:

[29]      Section 33(6) permits
the Board to cancel or to refuse to cancel the Unions certification without
regard to the vote if improper interference is found. A finding of improper
interference under Section 33(6)(b) is not a contravention of the Code:
7‑Eleven
. As such, the Boards remedial authority under Section 133 is not engaged.
That is the case regardless of how the parties or strangers to the proceeding
choose to perceive that conduct or choose to portray it in public forums. The
fact remains that the Board does not have jurisdiction under Section 33(6)(b)
to issue a remedydeclaratory or otherwiseagainst the person who has engaged
in improper interference. The Boards sole mandate under Section 33(6)(b)
is to remedy the consequences of such conduct by refusing to cancel the Unions
certification regardless of the vote.

[37]

This is an accurate statement of the law, and it is certainly not
patently unreasonable. It is in this context that the application of s. 3(1)
of the
SIA
must be assessed.

[38]

I am in substantial agreement with the analysis of s. 3(1)
undertaken by the chambers judge. These principles have also recently been
extensively reviewed by the Court of Appeal in England in
Belhaj v. Straw,
[2014]
EWCA Civ 1394. The analysis of the Court of Appeal is directly pertinent to the
issue before us. In particular, that court distinguishes between the scope of
state immunity and situations in which there is no state immunity but courts nonetheless
decline to consider certain state conduct by applying the related but
independent act of state doctrine, as a form of subject matter immunity.

[39]

In the United Kingdom, as in Canada, state immunity as it existed at
common law is now codified by statute. Section 3(1) provides, as we have
seen:

Except as provided by this Act, a
foreign state is immune from the jurisdiction of any court in Canada.

[40]

This case turns on whether, in making its findings, the Board exercised
jurisdiction over Mexico. None of the exceptions to the immunity referred to in
that section apply in this case.

[41]

At common law, the courts would not directly implead a state as a party
to proceedings, nor would a state be indirectly impleaded. This case does not
give rise to a question of direct impleading  Mexico is not a party. Mexico
argues, however, that it has been indirectly impleaded in the Board proceedings.

[42]

The concept of indirect impleading captures proceedings in which the
state is not a party but in which proceedings are brought in relation to
property in the states ownership, possession, or control: see
Compania
Naviera Vascongado v. S.S. Cristina (The Cristina),
[1938] A.C. 485;
The
Parlement Belge
(1879) 5 P.D. 197.

[43]

Mexico argues that the finding of improper interference is a finding that
it breached the
Code
in respect of which it could claim immunity, as it
did in respect of the unfair labour practices complaint, if it were a party to
the proceeding. It argues that to defend against that finding would,
improperly, require it to waive its immunity. Mexico has been indirectly
impleaded, it argues, because the finding affects Mexicos interest in the
administration of SAWP, passes judgment on the legality of sovereign acts of
Mexico conducted in its own territory, and achieves indirectly what could not
be done directly.

[44]

A similar argument was advanced and rejected in
Belhaj.
Mexico
submits, as was submitted in that case, that the scope of state immunity was
expanded by the House of Lords in
Buttes Gas and Oil Co. v. Hammer (Nos. 2
and 3),
[1982] A.C. 888. The Court of Appeal noted that the decision
in
Buttes
turned on the non-justiciability of the subject matter of the
claims and expressly did not turn on state immunity. As Lord Wilberforce said
in
Buttes
at 926 C-D:

The doctrine of sovereign
immunity does not in my opinion apply since there is no attack, direct or
indirect, upon any property of any of the relevant sovereigns, nor are any of
them impleaded directly or indirectly.

[45]

The Court of Appeal in
Belhaj
noted that cases arise in which no
state is directly or indirectly impleaded, so that no issue of state immunity
arises, but nevertheless courts decline to adjudicate on claims that turn on
the validity of public acts of a foreign state. This is the application of the
act of state doctrine. After referring to cases from other jurisdictions,
including the decision of the chambers judge in this case, the Court of Appeal
observed at para. 39 that [p]roceedings will not be barred on grounds of
state immunity simply because they will require the court to rule on the
legality of the conduct of a foreign state.

[46]

The Court went on to analyze the scope of the concept of indirect
impleading for the purpose of the application of state immunity. In brief, it
recognized that a state may be indirectly impleaded in circumstances where,
although not named as a party, the proceeding, in effect, seeks to affect the
property, rights, interests, or activities of that state, citing Article 6(2)(b)
of the
UN Convention on Jurisdictional Immunities of States and Their
Property
, 2 December 2004 (not yet in force). The Court considered
academic writing, among other sources, approving of the view that the legal
effects engaged should be specifically legal effects, such as the imposition of
a lien or declaration of title, rather than social, economic, or political
effects. Similarly, the relevant state interests should be confined to legal
interests, as opposed to interests in some more general sense:
Belhaj
at para. 45.

[47]

The Court summarized its view of the relationship between state immunity
and act of state in the following passage:

[48]      The principles of state
immunity and act of state as applied in this jurisdiction are clearly linked
and share common rationales. They may both be engaged in a single factual
situation. Nevertheless, they operate in different ways, state immunity by
reference to considerations of direct or indirect impleader and act of state by
reference to the subject matter of the proceedings. Act of state reaches beyond
cases in which states are directly or indirectly impleaded, in the sense
described above, and operates by reference to the subject matter of the claim
rather than the identity of the parties. This is inevitably reflected in the
different detailed rules which have developed in relation to the scope and
operation of the two principles. In this jurisdiction exceptions to immunity
are laid down in the 1978 Act. Limitations on the act of state doctrine, which
are not identical, have now become established at common law. (See, in
particular,
Yukos Capital Sarl v. OJSC Rosneft Oil Co (No.2)
[2014] QB
458.) The extension of state immunity for which the respondents contend
obscures these differences. Such an extension is also unnecessary. Any wider
exemption from jurisdiction extending beyond state immunity in cases of direct
or indirect impleader is addressed in this jurisdiction by the act of state
doctrine and principles of non-justiciability. The extension of state immunity
for which the respondents contend would leave no room for the application of
those principles.

[48]

I respectfully agree with this analysis. In my view, the argument
advanced by Mexico is not a state immunity argument. Rather, to the extent it
has merit, the argument invokes the related but separate principles of the act
of state doctrine. Mexico did not argue act of state as an independent ground
supporting a conclusion that the Board could not inquire into the sovereign
acts of Mexico conducted within its own territory. It has not argued that
proposition on appeal. Rather, its submission is, in substance, that the
principle of indirect impleading should be expanded to incorporate principles
drawn from the act of state doctrine. It submits that that is the proper
meaning to be given to the exercise of jurisdiction by the Board in this case.

[49]

For the reasons already given, I would reject that submission. I do
not agree that the Board exercised jurisdiction over Mexico when it considered
whether Mexicos conduct amounted to improper interference with the employees of
the Union for the purpose of exercising its discretion to refuse to cancel the
Unions certification. The Board made no orders in relation to property in the
ownership, possession, or control of Mexico. It did not affect Mexicos legal
interests. In my view, that conclusion is sufficient to dispose of this appeal.

[50]

This is not a case in which it is necessary to consider the scope or
content of the act of state doctrine. I would say only this: I am not persuaded
that the act of state doctrine has any application to the facts of this case.
The Board did no more than examine Mexicos conduct for the purpose of
exercising its remedial powers under the law of British Columbia, in respect of
the rights of the Employees, the Union, and the Employer in British Columbia.
The Board considered whether certain conduct had occurred, but in doing so, the
Board was not adjudicating its legal validity in Mexico or under international
law, and was not adjudicating whether the conduct breached the
Code.
The
Board was doing no more than vindicating the rights of persons in British
Columbia. I do not see that the act of state doctrine, however articulated, has
any application to the case before us.

[51]

I would dismiss the appeal.

The Honourable Mr. Justice Harris

I
agree:

The Honourable Mr. Justice Groberman

I
agree:

The
Honourable Mr. Justice Willcock




