Contemporary anti-corruption and bribery legislation is distinguished by its extraterritorial reach to conduct abroad – conduct which may indeed be lawful and/or expected as a condition of doing  business where it occurs – as a basis for criminal liability at home both for individuals and other  legal persons. Such statutes were, at inception, a marked departure from the principle of the  sovereign equality of states, and previously sound business practices, that individuals and  companies doing business abroad take and adhere to the law as they find it. Now, however, our  anti-corruption regimes hold their individual and corporate entities to a common standard wherever  they go.

In this phenomenon, Canadian legislation and courts may now be starting to lead by example. We are  seeing the beginnings of similar developments in the realm of civil liability. Specifically,  several recent decisions suggest a new type of extraterritorial tort liability for alleged  violations of international human rights in foreign jurisdictions to which Canadian companies,  particularly in extractive industries operating abroad, may be exposed. The fact that many of these  companies are either based in or have asset-based connections to Canada also suggests that Canadian  courts may become a centre for litigation of this kind.

Recent Examples of International Tort Litigation in Canadian Courts

Choc v. Hudbay Minerals Inc.1  involves three lawsuits brought by members of the indigenous Mayan  Q’eqchi’ population in El Estor, Guatemala, for alleged abuses committed by security personnel at  Hudbay’s former mining project in Guatemala in 2007 and 2009, including a shooting, a killing and  gang rapes. The plaintiffs have advanced claims against Hudbay, a Canadian mining company with  headquarters in Toronto and incorporated under the Canada Business Corporations Act, for being  directly liable for the actions of its former Guatemalan subsidiary (and in one of the three  actions, for also being vicariously liable for the actions of the Guatemalan subsidiary). The  plaintiffs argued that Hudbay was directly liable for failing to prevent harms committed by the  security personnel of its Guatemalan subsidiary, and that a duty of care was owed by the parent company to the members of the local community. Amnesty  International, acting as an intervener, made submissions regarding international law, standards and  norms supporting the existence and scope of such a duty of care.

Madam Justice Brown of the Ontario Superior Court denied a preliminary motion to strike, allowing  the claims to proceed to trial, and found that the plaintiffs had pled all material facts required to establish the constituent elements of their claim of direct negligence and a novel duty of care owed by a parent company (which are reasonable foreseeability, proximity, and absence of policy reasons to offset or otherwise restrict that  duty). Hudbay may prove to be a landmark case on the domestic enforcement of rights and norms  originally derived from international law.

In June of this year, a Notice of Civil Claim was also filed in the Supreme Court of British  Columbia against Tahoe Resources Inc., a Canadian mining company incorporated under the laws of British Columbia, by seven Guatemalan men for injuries they suffered when Tahoe  security personnel at the Escobar Mine in Southeast Guatemala allegedly fired at them at close  range.2  The plaintiffs assert that Tahoe expressly or implicitly authorized the use of excessive  force by its security personnel or was negligent in preventing or failing to prevent the security  personnel from using excessive force. The plaintiffs claim that Tahoe owed a duty of care to the  plaintiffs based on the fact that, among other things, it knew that the security personnel failed  to adhere to internationally accepted standards on the use of private security personnel to which  Tahoe had committed.

Tahoe has contested the jurisdiction of the British Columbia court over the defendant company3, and  how the British Columbia courts deal with the jurisdictional issue in this particular context may  be an important precedent for future cases.

Another claim has also been very recently filed in the Vancouver Registry of the Supreme Court of  British Columbia against Nevsun Resources Ltd. The claim alleges that the company was complicit in  the use of forced labour – which the claim calls “a form of slavery” – at its copper mine in  Eritrea, and gives rise to another potential precedent in this area of civil liability.4

Most of the other cases to date involving alleged violations of international norms or  international human rights did not reach a trial on the merits and were dismissed by Canadian  courts on jurisdictional grounds.5  The decision in Piedra v. Copper Mesa Mining Corporation6  went  a little further and the Ontario courts had to consider, similarly to the Hudbay case, the  existence of a novel duty of care. In Piedra, the plaintiffs alleged that Copper Mesa (vicariously), its two Ontario-resident directors and the Toronto Stock Exchange (TSX) were negligent in not preventing  violence suffered by Ecuadorians opposed to the corporation’s mining project. The Court of Appeal  upheld the decision of the lower court judge that the plaintiffs’ claims against the defendants  disclosed  no reasonable cause of action (i.e. there was no duty of care owed by each of the  defendants to the plaintiffs).

The case law to date makes it clear that courts have not rejected these types of claims outright  for want of subject matter jurisdiction. However, those decisions generally do not set out the  genesis of international human rights-based tort litigation in Canada or the principles on which it  is based. In addition, the claims advanced by the plaintiffs (as reflected  in the court decisions)  have not been uniformly framed with express reference to violations of international law or international human rights as being  the foundation for the claims.7  Thus, the questions that arise and that have not been answered  fully yet pertain to how the rights and norms that derive from international law can be recognized  and enforced by Canadian courts. Incorporation of international customary law into Canadian  domestic law may provide a theoretical foundation for such recognition and enforcement.

International Norms in Canadian Law

In R. v. Hape,8  the Supreme Court of Canada demonstrated that even though Canada lacks a statutory  jurisdictional vehicle functionally equivalent to the ATS,9  there is a legal basis for exposure of  Canadian companies with operations abroad to legal actions in Canada for alleged violations of  international law abroad. That case arose in the relatively unrelated context of alleged violations  of the Canadian Charter of Rights and Freedoms with respect to a domestic criminal prosecution  dependent on Canadian police investigations in a foreign jurisdiction. Nonetheless, it authoritatively resolved in the affirmative a long-held  assumption that international customary law was automatically part of the law of Canada, absent  clear statutory departures to the contrary.10 In Canada, treaties per se are not part of domestic law unless implemented by Parliament and/or provincial legislatures11 but the same rules that are expressed in treaties can also be incorporated into the body of  Canadian common law if the treaties stand as codifications of pre-existing international customary law.12

Canada’s long-standing commitment to international human rights law is evidenced by its central  role in the drafting of the Universal Declaration of Human Rights in 1947/1948 as well as its  adoption of eight different core multilateral human rights treaties, all of which are now in  force.14  The breadth of Canada’s international commitments in this regard provide a broad  foundation for the importation of liability to Canadian private actors for human rights-based  international torts.

In addition to customary international law evidenced by codification in treaties, certain  fundamental principles of international law – known as “peremptory norms” or “jus cogens norms” –  apply to all states without exception or permitted derogation.15  As a category of customary international law, jus cogens norms require  no formal implementation process in order for these rules to be incorporated into the body of  Canadian common law. Examples of jus cogens norms include prohibition on the use of force; the law of genocide; the principle of racial non-discrimination; crimes against humanity; and the  rules prohibiting trade in slaves or human trafficking. Serious allegations of human rights  violations often invoke jus cogens norms.

What remains to be resolved on the facts of particular cases such as Hudbay and Tahoe is what legal  effect customary international norms have once they are incorporated into domestic law. Are they  automatically binding and capable of forming the basis, by themselves, for the decision of the court? Or do they give rise to, limit  or extend enforceable rights at common law?16  It appears that Ontario courts have taken the latter  approach, using international law norms as a basis for the finding of a “novel” duty of care at  common law.  However, it remains to be seen whether, for example, international law can support the  creation of new causes of action aimed specifically at civil liability for violations of international human rights, and  what standard of liability will be applied for those claims. Eventually, the cases will tell us,  not to mention the possibility of the Parliament and provincial legislatures weighing in with statutory prescriptions.