Update: Canada v. Merlini
Posted on March 9, 2020
For those of you who have been following the Merlini case, the case of the American worker injured on the job in the Canadian consulate, here is Canada’s cert. petition. Note that Canada has added Gordon Giffin, the former US Ambassador to Canada, to its list of counsel.
I guess you will see my full thoughts on the petition when we file the brief in opposition, which will be at least a month from now. The arguments that you can expect to see are not necessarily the arguments most of interest to Letters Blogatory readers, because opposing a cert. petition is not the same as arguing the merits. But let me remind you of a couple of points about the merits that I think should give you pause if you are inclined to defer to the foreign sovereign, especially maybe to a friendly foreign sovereign like Canada. First, if Canada is right, then a foreign government that says, “we have established, through legislation, a worldwide pay scale for our government employees” need not pay American workers the minimum wage. A foreign government that says, “we have established a worldwide policy, through legislation, of not hiring women in our consulates” cannot be sued in the United States for refusing to hire women, no matter how clear it is that the job the woman would be doing has no governmental or official duties. Second, if Canada is right, then a foreign country wins a case where it makes a deliberate decision not to buy workers’ compensation insurance but loses a case where it has not made such a policy, or where it affirmatively wants to buy the insurance, but fails to buy it for whatever reason you like—maybe it forgot to put the check in the mail, maybe the check bounced, whatever. That is strange on its face and also at odds with the FSIA’s requirement that the commercial nature of an act be decided by looking only at its nature, not at its purpose.
More to come!