Canada v. Cynthia L. Merlini

Respondent Merlini was injured while working as Assistant to the Consul General at petitioner Canada’s Consulate. She sued Canada under a strict liability cause of action premised on the employer’s failure to comply with state regulatory requirements for workers’ compensation insurance. Canada did not comply with those requirements because its own legislation creates a comprehensive workers’ compensation scheme applicable to all Canadian Government employees worldwide. The court of appeals rejected Canada’s claim of sovereign immunity based on the commercial activity exception to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2). The questions presented are:

1. Whether the court of appeals erred in treating Canada’s legislative decision to compensate its consular employees for workplace injuries exclusively under Canadian law as a mere omission to comply with state law, and thus as “commercial activity” within 28 U.S.C. § 1605(a)(2).

2. Whether the court of appeals erred in deeming Canada’s setting of conditions of full-time employment within the Canadian Consulate “commercial activity” within 28 U.S.C. § 1605(a)(2), based on the employee’s U.S. citizenship and allegedly “clerical” job duties.