Canadian Supreme Court allows case for alleged human rights abuses by Canadian company overseas

A group of Eritrean workers have won an important preliminary ruling against their former employers for alleged human rights abuses at a Canadian owned mine.

This claim was originally filed in 2014 in British Columbia by a group of Eritrean refugees living in Canada. They alleged that Nevsun Resources, a Canadian company operating in Eritrea, were complicit in a range of human rights violations including forced labour, slavery, cruel, inhuman or degrading treatment and crimes against humanity. They claimed that they were subjected to these abuses by their employer at Bisha mine, an Eritrean company owned in the majority by indirect subsidiaries of Nevsun. Human Rights Watch and a UN Commission of Inquiry have reported the abuses.

In their lawsuit, the plaintiffs cited various conventional torts like negligence, conspiracy and battery, along with a novel claim that the company’s actions were civilly actionable as breaches of customary international law prohibitions on slavery, torture, crimes against humanity and cruel, inhuman and degrading treatment. They argued that customary international law is automatically incorporated into domestic law through the common law so any violations could necessitate a civil remedy. The company filed motions to strike out the novel claim, and dismiss the lawsuit altogether. They argued that the case should be dismissed on the basis of the forum non conveniens doctrine, as Eritrea was the more appropriate jurisdiction in which to litigate the case. The company also argued for dismissal based on the act of state doctrine, the rule that prevents courts for ruling on matters which touch on the lawfulness of another state’s conduct. This rule is recognised in the UK, United States and Australia but had never been ruled on in Canada.

Nevsun lost all three motions at the British Columbia Supreme Court and Court of Appeal. They then appealed to the Supreme Court of Canada on the act of state and novel motions.

The Supreme Court of Canada dismissed both of the defendants’ motions. On the act of state motion, Judge Abella cited a line of British cases which established that the act of state doctrine consists of two elements: a choice of law rule requiring courts to recognise the validity of foreign laws in a foreign territory and a rule of judicial restraint from adjudicating on matters which stray too far into interstate relations. As the Canadian legal system already had equivalent concepts, the act of state doctrine was superfluous and did not form part of the Canadian common law. This being the case, it could not be a bar to the plaintiff’s case.

On the novel motion, the majority of the court recognised that a Canadian company could be held liable in Canada for a breach of customary international law which occurred in another country. It confirmed that customary international law forms part of the Canadian common law. The court went on to add that existing torts may be inadequate to address abuses so severe they breach jus cogens norms. It therefore accepted that the plaintiffs’ argument that the courts should recognise a new nominate tort for violations of customary international law could succeed at trial.

Though the merits of the case are yet to be determined, this preliminary decision opens the doors for possible future cases against Canadian companies operating outside of Canada for complicity in human rights abuses.

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