Canada could make civil remedy for corporate violations of customary international law norms

International Law – Application of international law - Miscellaneous

Plaintiffs, refugees and former Eritrean nationals, claimed that they were indefinitely conscripted through their military service into forced labour regime where they were required to work at mine in Eritrea and subjected to violent, cruel, inhuman and degrading treatment. Mine was owned by defendant, Canadian company. Plaintiffs started proceedings in British Columbia, seeking damages for breaches of domestic torts and for breaches of customary international law prohibitions. Defendant brought motion to strike pleadings on basis of act of state doctrine. It also took position that claims based on customary international law should be struck because they had no reasonable prospect of success. Chambers judge dismissed defendant's motions to strike on these bases. Defendant's appeal was dismissed. Defendant appealed. Appeal dismissed. It was not plain and obvious that plaintiffs' claims against defendant based on breaches of customary international law could not succeed. In absence of any contrary law, customary international law norms raised by plaintiffs formed part of Canadian common law and potentially applied to defendant. It was not plain and obvious that Canadian courts could not develop civil remedy in domestic law for corporate violations of customary international law norms adopted in Canadian law.

Nevsun Resources Ltd. v. Araya (2020), 2020 CarswellBC 447, 2020 CarswellBC 448, 2020 SCC 5, 2020 CSC 5, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2017), 2017 CarswellBC 3232, 2017 BCCA 401, Newbury J.A., Willcock J.A., and Dickson J.A. (B.C. C.A.).

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