
Canada
Summary of developments:
- Choc v. Hudbay Minerals Inc.: Ontario Superior Court has permitted the claims to proceed on the basis that it was not "plain and obvious" that Hudbay did not owe a duty of care to the plaintiff (ongoing).
- Araya v. Nevsun Resources: Supreme Court of Canada granted Nevsun leave in June and will hear the appeal (2018, ongoing).
- Garcia v. Tahoe Resources: British Columbia Court of Appeal has allowed case to go to trial (2017, ongoing).
- Yaiguaje v. Chevron Corporation: Plaintiffs have sought leave to appeal before Supreme Court of Canada (ongoing).
Last updated 20/03/2018
Case Law
Choc v. Hudbay
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In a nutshell |
In more detail |
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Name of Case |
Hudbay |
Choc v. Hudbay, 2013 ONSC 1414 - CanLII Three cases are being heard together: Choc v. Hudbay Chub v. Hudbay Caal v. Hudbay |
Area of Law |
Negligence (tort) |
The lawsuits allege that between 2007 and 2009, private security personnel employed by Hudbay at its Fenix nickel mine killed a local community leader, seriously wounded another local resident, and gang-raped eleven women. |
Jurisdiction |
Province of Ontario (common law) |
|
Current Stage |
Examinations for Discovery |
|
Requirement/Result |
Claimants requesting monetary damages |
|
Material Scope | Negligence (tort) | |
Reach of the Requirements |
Overseas activity of a Canadian transnational and its subsidiary |
|
Enforcement |
Decision pending |
|
Pros |
Seeks to establish direct liability of parent company for overseas operations |
Has established a precedent with respect to parent company liability. This was the first case in Canada where foreign claimants alleging to have suffered harm caused by a Canadian company's overseas operations could proceed to trial. |
Broader Application to Other Sectors |
Finding of parent company liability could have implications beyond mining sector |
|
Resources
♦ Choc Community Blog
♦ "Defensora", documentary film about resistance against the mining company in Guatemala (info and trailer).
♦ Business & Human Rights Resource Centre (BHRRC) Coverage
Araya v. Nevsun Resources Ltd.
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In a nutshell |
In more detail |
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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 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 June 2018, the Supreme Court of Canada decided to hear the appeal and granted Nevsun leave. |
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 and the case will be heard in January 2019. |
Requirement/Result |
Claimants requesting monetary damages |
|
Material Scope |
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 |
Resources
♦ Analysis at Canada Class Action monitor.
♦ Canadian Centre for International Justice coverage.
♦ Business and Human Rights Resource Centre coverage
♦ Mondaq coverage.
García v. Tahoe Resources Inc.
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In a nutshell |
In more detail |
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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 |
Will be heard on the merits |
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. |
Requirement/Result |
Claimants requesting monetary damages |
|
Material Scope | Battery and negligence (tort) | |
Reach of the requirements |
Overseas activity of a Canadian corporation and its subsidiary |
|
Enforcement |
Decision pending |
|
Pros |
Seeks to establish direct liability of parent company for overseas operations of subsidiary |
|
Broader Application to Other Sectors |
Finding of parent company liability could have implications beyond mining sector. |
|
Resources
♦ Decision allowing an Appeal.
♦ Business & Human Rights Resource Centre coverage.
♦ Canadian Centre for International Justice coverage.
Yaiguaje v. Chevron Corporation
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In a nutshell |
In more detail |
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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 |
Plaintiffs have sought leave to appeal before the Supreme Court of Canada |
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 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. The claimants have sought leave to appeal this decision before the Supreme Court of Canada. |
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. |
Material Scope | Enforcement of foreign judgment | |
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 whose decision is pending appeal. |
Pros |
Could create helpful jurisprudence on piercing the corporate veil |
|
Broader Application to Other Jurisdictions |
Could create standard to be adopted across common law jurisdictions |
|
Resources
♦ Supreme Court Judgment.
♦ "The Enforcement Saga Continues", article by McCarthy Tetrault, in Lexology.
♦ "SCC Decision Highlights Increased Litigation Risk for Canadian Companies for Misdeeds of their Foreign Affiliates", article by McCarthy Tetraul, in mccarthy.ca.
♦ Business & Human Rights Resource Centre coverage.
♦ "Court sets aside cash order in Ecuadorians’ appeal of Chevron decision", article by The Canadian Press, in Rd news Now.