CANADA Law and Practice Contributed by: Claudia Feldkamp and Chris Pigott, Fasken
• Garcia v Tahoe Resources Inc (settled in 2020 after company’s motion to strike failed at the BC Supreme Court and the BC Court of Appeal); and • Das v Weston (Rana Plaza Disaster and Loblaws) (suit dismissed after motion to strike successful at the Ontario Superior Court and the Ontario Court of Appeal). The decisions in Araya Eritrean et al v Nevsun Resources and Choc v Hudbay Minerals Inc et al open Canadian corporations operating over - seas, including through foreign subsidiaries, to potential new types of corporate civil liability claims for human rights violations committed overseas. As none of the cases have proceed - ed to trial, there is no case law assessing the scope and potential for liability arising from such claims, including the extent to which a Canadian company may be liable in its oversight of the operations of foreign subsidiaries. Araya Eritrean et al v Nevsun Resources In Araya Eritrean et al v Nevsun Resources Ltd, workers filed a claim before the BC Supreme Court against the parent company of a foreign subsidiary in Eritrea seeking damages for pri - vate law torts and alleged violations of custom - ary international law prohibitions against slav - ery, forced labour, torture, and crimes against humanity in connection with a mining operation in Eritrea. After Nevsun Resources Ltd unsuc - cessfully moved in the BC courts to strike the plaintiffs’ customary international law claims, certain issues were appealed to the Supreme Court of Canada, including whether the plain - tiffs’ claims for breach of customary international law should go to trial. In a 5-4 decision, the Supreme Court of Canada ruled as follows.
• The novel claims for breach of custom - ary international law norms brought by the alleged victims disclosed a reasonable cause of action and could proceed against the Canadian parent company for its complicity in the abuses. • It was not “plain and obvious” that a civil action seeking to hold Canadian companies liable for violations of customary international law committed outside Canada would fail. • Both majority and dissenting judges agreed that certain norms of customary international law prohibit specific conduct, regardless of whether the perpetrator is a state or private actor. The plaintiffs reached an out-of-court settlement with Nevsun Resources Ltd in October 2020. Choc v Hudbay Minerals Inc et al In the 2013 decision of Choc v Hudbay Miner - als Inc et al, Hudbay unsuccessfully applied to strike the claims brought by a group of indige - nous peoples from Guatemala for alleged human rights abuses at a Guatemalan mining project owned through Compania Guatemalteca De Niquel (CGN), its Guatemalan subsidiary. Choc v Hudbay Minerals Inc et al involved three related actions that were consolidated into one claim before the courts in Ontario. The plaintiffs advanced two main grounds for the claims – namely, that the parent company, Hudbay: • was negligent in failing to prevent the harm that the security personnel committed at the mine in Guatemala – Hudbay owed a direct duty of care to the plaintiffs; and • was liable for the torts committed by the for - eign subsidiary’s employees or agents.
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