Friday, 30 August 2013

Recent Developments in International Human Rights Litigation - Part 1

Here are some recent important developments regarding the ability to sue in Canada or the United States for incidents such as human rights abuses occurring abroad. Part One will cover Canadian developments, and Part Two will cover American developments.

Negligence for Failure to Prevent Harm by a Subsidiary as a Cause of Action -  Choc et al v. Hudbay Minerals

The Ontario Superior Court of Justice has recently ruled, in Choc et al v. Hudbay Minerals Inc. [2013] O.J. No.3375, 2013 ONSC 1414,  to allow a group of indigenous Guatemalans to sue a Canadian parent company for the  murder and gang rapes allegedly committed by the security personnel of its subsidiary in Guatemala. The plaintiffs were local residents claiming ownership of certain land on which that subsidiary was operating.   The plaintiffs brought a novel claim, that the parent, Hudbay, was negligent in failing to properly manage the security personnel so as to prevent those crimes being committed, and thus Hudbay was liable for the crimes.  This claim was separate and distinct from another claim for piercing the corporate veil.  A 2010 decision of the Supreme Court of Canada had paved the way for the negligence claim.  In Fullowka v. Pinkerton's [2010] 1 S.C.R. 132 the Court allowed a claim that Pinkerton's, a security company, was negligent for having failed to prevent a third party, a striking employee, setting off a bomb.  Hudbay moved to strike the negligence claim, saying it is not a cause of action because there is no duty of care. 

C.J. Brown J. allowed the claim to proceed to trial.   As per the decision of the British House of Lords in Anns v. Merton [1978] A.C. 728   and the decision of the Supreme Court of Canada in OdhavjiEstate v Woodhouse, [2003] 3 S.C.R. 263 there are three requirements to establish a duty of care:  a.) that the harm be a reasonably foreseeable consequence of the alleged negligence; b.) that there is a sufficient proximity between the parties so as to justify imposition of a duty of care, and c.) that there be no policy reasons to negative or limit that duty of care.  The court found the harm foreseeable in that Hudbay knew violence had been used in earlier forced evictions of people from other lands in Guatemala, that the risk of violence is larger for evictions in remote areas, that the security personnel were neither licensed nor trained but had possession of guns, and that the vast majority of violent crime goes unpunished in Guatemala.  The court found the necessary proximity based on the many public statements asserting that Hudbay worked closely with the indigenous people and other local stakeholders, that it did everything possible to avoid violations of human rights in the course of evictions, and evidence that in fact Hudbay (which owned 98% of the subsidiary)  held control over community relations and over security personnel, including standards of conduct for those personnel.    The Court ruled it was not plain and obvious that policy considerations would negate or restrict a duty of care.   It appears this ruling will stand, as no appeal has been brought and the time for doing so has passed.  Cory Wanless, one of the counsel for the moving parties, commented that he welcomed this advance in human rights jurisprudence.

This ruling provides a means by which plaintiffs with claims arising out of incidents occurring abroad may have more potential targets/defendants to choose from, e.g. deep-pocketed defendants and/or defendants that are resident here and thus not able to raise a jurisdictional defence to a proceeding in Ontario.

Forum of Necessity – Van Breda v Village Resorts, and the Court Jurisdiction and Proceedings Transfer Act
             The Ontario Court of Appeal has confirmed in Van Breda v Village Resorts 2010 ONCA 84, at para. 109, that “where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction”.  This concept, called forum of necessity, opens the doors of Ontario and other courts to human rights cases (or other types of cases) brought by plaintiffs who cannot be reasonably expected to seek justice from the courts in their home country because of the nature and/or cause of the alleged human rights abuse. An example of such cases would be abuse perpetrated by the government of a country lacking an independent judiciary.  The Supreme Court of Canada heard an appeal of Van Breda but did not address this part of the Court of Appeal’s decision.  

Forum of necessity already exists in the law of British Columbia, Saskatchewan, Nova Scotia and the Yukon Territory, each of which have in recent years enacted the Court Jurisdiction and Proceedings Transfer Act (CJPTA) which provides that:
(a) there is no court outside [the province] in which the plaintiff can commence the proceeding, or
(b) the commencement of the proceeding in a court outside [the province] cannot reasonably be required.
Forum of necessity is provided for in the Quebec Civil Code   S.Q. 1991, c. 64,  s 3136, and in the European Convention on Human Rights. 

Immunity of Governments – Steen v Iran, and the Justice for Victims of Terrorism Act
            The State Immunity Act  R.S.C. 1985 c. S-18 (“SIA”) provides that “except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada”; there is an exception for “commercial activity”.  One might expect that such a law would be construed narrowly, insofar as it is a departure from fundamental principles and goals of our legal system, namely the rule of law and the goal of ensuring accountability for one’s actions.  However, in Steen v Iran [2013] O.J. No. 228 the Ontario Court of Appeal re-affirmed, implicitly, that the immunity that the SIA confers on foreign states is not to be narrowly construed.    Between 1982 and 1988 Iran directed the kidnapping and detention of several American citizens, including Steen, who was  held for an extended period, and in inhumane conditions.  Iran demanded a ransom of money and weapons before releasing Steen.   Steen sued in the United States and obtained a judgment for $342,750,000, which he sought to enforce in Ontario.  The Court dismissed Steen’s argument that Iran’s demand for a ransom payment brings the case within the exception for commercial activity, ruling that “a mere nexus to commercial activity is insufficient”, and that the payment “does not alter the true nature of hostage taking as a brutal act”. (para 22)   With respect, a hostage taking can be considered both a brutal act and a commercial one, and ought to be, so as to allow a remedy.   
             The Court also refused to recognize any common law exceptions to immunity, just as it had refused ten years earlier in Bouzari v Iran (2004), 71 O.R. (3d) 675, despite the 2010 decision of the Supreme Court of Canada in Kuwait Airways v Iraq [2010] 2 S.C.R. 571 (para 24)  that, in obiter dicta, recognized the evolution of international law toward exceptions to sovereign immunity, and hinted at the possibility that such evolution has led to the development of new exceptions to immunity.   The Steen decision is consistent with a recent decision of the Quebec Court of Appeal on the SIA in Iran v Hashemi, 2012 QCCA 1449. 

            The Ontario Court of Appeal also rejected an argument that a government might lose its right to immunity if its acts were in violation of peremptory norms of international law “(jus cogens”).  Such norms include the prohibitions against genocide, slavery, apartheid, and torture.  Steen’s argument was that a state that violates such norms loses its immunity because in committing such acts the state is not acting in a sovereign capacity.     The Court’s analysis of this issue was disappointing.   Citing Bouzari, the Court said that absent “a widespread state practice [of creating such an exception from immunity] that does not exist today”, the SIA  is not to be interpreted to admit of such an exception.  One wonders how international law could evolve if every court adopted such a conservative philosophy.  Also, the court cited a decision of the International Court of Justice in Jurisdictional Immunities of the State(Germany v Italy: Greece Intervening), judgment 3 Feb. 2012, IC.J. General List No. 143 to the effect that the rules of jus cogen and the rule of customary international law that requires one state to accord immunity to another are not in conflict.  The court failed to address the point that the rights jus cogen confers are illusory if there is no remedy.  Genocide is generally committed by states, not persons, because of the scale of violence involved in genocide; apartheid too is generally committed by states, not persons.
            Fortunately for human rights advocates, new legislation -- the Justice for Victims of Terrorism Act  S.C. 2012, c 1 S. 2 – reduces state immunity somewhat. That act provides that “a court … must recognize a judgment of a foreign court that, in addition to meeting the criteria under Canadian law for being recognized in in Canada, is in favour of a person that has suffered loss or damage [as a result of certain terrorist acts].”  Recognition is mandated even for judgments against foreign states if the state is on a certain list issued by the Governor General in Council in 2012. The listed states are the Islamic Republic of Iran and the Syrian Arab Republic. 

           The act also creates a cause of action for Canadian citizens and permanent residents for damages for harm incurred in or outside Canada by certain types of terrorist acts,  even against states on the list. The act also creates presumptions in favour of liability, and suspends limitation periods for plaintiffs who were unable to sue due to their physical, mental or psychological condition or who were unable to identify the perpetrator/defendant.

My next post will cover American developments.