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

In November 2017, the British Columbia Court of Appeal rejected Nevsun’s appeal to dismiss the case of 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.

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)

Personal Scope

Parent company

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 suffered serious injuries when security personnel employed by Tahore'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

Personal Scope

Parent company

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.

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

On appeal to Ontario Court of Appeal

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

2013: court in Ecuador awarded claimants US$9.51 billion in damages. Chevron had no assets in Ecuador.

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

2017: 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.

Claimants have appealed the decision to the Ontario Court of Appeal.

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.

Personal Scope

Parent-subsidiary relationship

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