Canada

Name of Case

Araya v. Nevsun Resources Ltd.

Araya v. Nevsun Resources Ltd., 2016 BCSC 1856 - CanLII

Area of Law

Conversion, battery, unlawful confinement, negligence, conspiracy, and the negligent infliction of mental distress (tort).

The plaintiffs also argue that Nevsun is responsible for violations of customary international law including forced labour; torture; slavery; cruel, inhuman or degrading treatment; and crimes against humanity.

The claimants maintain that Nevsun expressly or implicitly approved the widespread use of forced labour by its local contractor, Segen Construction Company, at the Bisha mine in Eritrea. The claimants allege that they endured appalling working and living conditions and were subjected to severe punishment for perceived disobedience.

Jurisdiction

Province of British Columbia (common law)

Current Stage

In March 2020, the Supreme Court of Canada allowed the case to proceed. The parties settled in October 2020.

In November 2017, the British Columbia Court of Appeal rejected Nevsun’s appeal to dismiss the case on the basis of the forum non conveniens and the act of state doctrines. The court also opted not to dismiss claims based in international human rights law.

In January 2018, Nevsun sought leave to appeal before the Supreme Court of Canada.

The company was granted leave. It challenged the appeal court’s ruling on the act of state doctrine and the plaintiffs’ use of international law. The company did not challenge the appeal court’s decision regarding forum non conveniens.

In March 2020, the Supreme Court of Canada allowed the case to proceed. The parties settled in October 2020. The court determined that the act of state doctrine is not part of Canadian common law and therefore does not impede the plaintiffs’ case. The court also found that Canadian companies may be sued in Canada for violations of customary international law. This represents a significant development in Canadian law.

Requirement/Result

Claimants requesting monetary damages

Peremptory norms of international law (forced labour, torture, slavery, cruel, inhuman and degrading treatment, crimes against humanity) and domestic tort law (conversion, battery, unlawful confinement, negligence, conspiracy, and the negligent infliction of mental distress)

Reach of the requirements

Overseas activity of a Canadian transnational and its subsidiary 

Pros

Seeks to establish direct liability of parent company for overseas operations

This is the first case in which claims against a Canadian corporation for alleged breaches of customary international law have been allowed to proceed.

Broader Application to Other Sectors

Finding of parent company liability would have implications beyond mining sector.

Broader Application to Other Jurisdictions

Jurisprudence could be followed  in other common law jurisdictions

Name of Case

García v. Tahoe Resources Inc.

Garcia v. Tahoe Resources Inc., 2017 BCCA 39 - CanLII

Area of Law

Battery and negligence (tort)

The claimants allege that they suffered serious injuries when security personnel employed by Tahoe's subsidiary shot at them during a peaceful demonstration against the company’s Escobal silver mine in Guatemala in April 2013.

Jurisdiction

Province of British Columbia (common law)

Current Stage

concluded

In 2015 the case was dismissed on the basis of the forum non conveniens doctrine. The court found that Guatemala was a more appropriate forum to hear the case. The claimants successfully challenged this ruling on appeal in 2017. That same year the Supreme Court of Canada denied Tahoe’s application for leave to appeal.

In July 2019 the plaintiffs reached a settlement with Pan American Silver, which acquired Tahoe Resources months earlier. The agreement included public acknowledgement by the company that the plaintiffs' human rights were violated during the shooting, as well as a public apology to the plaintiffs and their community.

Requirement/Result

A settlement was reached between the parties.

Reach of the requirements

Overseas activity of a Canadian corporation and its subsidiary

Pros

Important appellate-level precedent recognizing Canada as an appropriate legal forum for plaintiffs who suffer harm in countries with compromised judicial systems. First transnational litigation in Canada involving a corporate defendant that concludes with a settlement between the parties. First formal acknowledgement of wrong-doing and offer of public apology by a corporate defendant in the context of transnational litigation in Canada.

Broader Application to Other Sectors

Jurisprudence on forum will inform future transnational litigation against corporate defendants. Corporate acknowledgement of wrong-doing may encourage prospective litigants and may inspire  similar behaviour by other business defendants. 

Name of Case

Yaiguaje v. Chevron Corporation

Yaiguaje v. Chevron Corporation, 2015 SCC 42, [2015] 3 S.C.R. 69

Area of Law

Enforcement of foreign damage award

Jurisdiction

Province of Ontario (common law)

Current Stage

Finished

In 2003, indigenous and settler residents of the Amazon region of Ecuador known as the Oriente filed a lawsuit in Ecuador against Chevron Corporation.

In 2011, an Ecuadorian court found Chevron liable for over US$19 billion in damages. Two years later, the Ecuadorian National Court of Justice upheld the decision, reducing the award to US$9.51 billion. Chevron had no assets in Ecuador.

In 2012, claimants brought a suit in Ontario against parent company Chevron Corporation and its Canadian subsidiary, Chevron Canada.

In 2017, the Ontario Superior Court barred the claimants from piercing the corporate veil in order to use Chevron Canada’s assets to pay the debts of its parent company, Chevron Corporation. However, enforcement proceedings were allowed to advance against Chevron Corporation.

In 2018, the Ontario Superior Court's decision regarding Chevron Canada was upheld on appeal. In April 2019 the Supreme Court of Canada dismissed the plaintiffs’ application for leave to appeal, terminating the action against Chevron Canada.

In July 2019, Chevron Corp brought a motion to dismiss the outstanding proceeding. The plaintiffs consented to the dismissal, bringing an end to the litigation.

Requirement/Result

Damages

Claimants allege that they suffered harm, including property damage and adverse health and environmental impacts, as a result of the intentional and reckless mismanagement of crude oil and toxic waste in the Oriente.

Reach of the requirements

Attempt to enforce foreign damage award (Ecuador) against Canadian subsidiary of U.S. parent company

Enforcement

At the time of 2013 judgment, Chevron held no assets in Ecuador, making it impossible for the claimants to enforce the damages award they had been granted in that country.

Claimants filed suit to enforce the Ecuadorian judgement in a number of jurisdictions where the company did hold assets, including the Ontario Superior Court.

Name of Case

Das v. George Weston Limited (Loblaws)

Arati Rani Das, Rehana Khatun, Mohamed Alauddin and Kashem Ali

and

George Weston Limited, Loblaws Companies Limited, Loblaws Inc., Joe Fresh Apparel Canada Inc., Bureau Veritas – Registre International de Classification de Navires et D’Aeronefs SA, Bureau Veritas Consumer Products Services, Inc., and Bureau Veritas Consumer Products Services (BD) Ltd

Area of Law

Negligence (tort) 

Class action lawsuit against Canadian company Loblaws, its wholly owned subsidiary Joe Fresh and Bureau Veritas, a company that audits factories, regarding the collapse of a Bangladeshi garment factory in 2013 that killed 1,130 people and seriously injured 2,520 more, most of whom were young women. Class members included both injured victims and families of the deceased.

The plaintiffs argued that Loblaws:

• owed a duty of care toward its suppliers’ workers, which it failed to discharge;
• was vicariously liable for any negligence on the part of its suppliers; and
• owed a fiduciary duty regarding the audits and inspections carried out at its suppliers’ operations, which it failed to discharge.

The plaintiffs further argued that Bureau Veritas owed a duty to conduct reasonable audits and to ensure that issues of non-compliance were quickly remedied.

Jurisdiction

Province of Ontario (common law) 

The Ontario Superior Court ruled that it had jurisdiction to hear the case given that the defendants were resident and carried on business in Ontario.

Current Stage

On December 20 2018, the Ontario Court of Appeal issued its ruling.

The defendants sought to have the case dismissed on the grounds that it was ‘plain and obvious’ that no claim existed. The defendants argued that, consistent with the Supreme Court of Canada decision in Tolofson v. Jensen, the choice of laws in tort cases depends on where the harmful activity occurred (lex loci). The defendants argued that Bangladeshi law must apply and the claim must therefore fail as it was brought following the expiration of a statutory limitation period and because the defendants owed no duty of care to the plaintiffs in Bangladesh.

The plaintiffs argued that because Loblaws operates in Ontario and important decisions regarding its suppliers in Bangladesh were taken in that province, the tort took place in Ontario. They also argued that Bangladeshi law is underdeveloped and that it discriminates against women.

The Ontario Superior Court agreed with the defendants on all counts, as did the Ontario Court of Appeal.

Result

The plaintiffs sought CDN$2 billion in damages, as well as punitive damages.

Damages were claimed from Loblaws, Joe Fresh and auditing firm Bureau Veritas.

Reach of the requirements

Attempt to assign liability to parent company in Canada for damages sustained by workers employed by the company’s foreign suppliers.