The Litigator

THE LITIGATOR

Commentary on Law Affecting Business

The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
365 Bay Street, Suite 200  ·  Toronto, Canada
416 360 2800  ·  info@agmlawyers.com  ·  www.thelitigator.ca

The Supreme Court’s Nevsun Decision Firmly Incorporates Customary International Law into Canadian Common Law in the Class Action Context

Can a Canadian company be held liable in Canada for breaches of abroad? One of the ’s most recent decisions definitively answers that question in the affirmative.

On February 28, 2020, the Court released a decision that sharply defined the role of customary international law in Canada. The decision, Nevsun Resources Ltd. v Araya et al., 2020 SCC 5, addresses two major issues: the role (or more accurately, lack thereof) of the “Acts of State” doctrine in Canadian law and whether customary international law is automatically part of Canadian law.

The case began as a class action proceeding in British Columbia brought by three Eritrean refugees. The Plaintiffs alleged that they had been indefinitely conscripted through their military service into a forced labour regime and were forced to work at a mine in Eritrea owned by a Canadian company, the Defendant, Nevsun Resources Ltd. The Plaintiffs were also allegedly subject to violence and cruel, inhuman, and degrading treatment while enforced into labour at the mine. The Plaintiffs brought the action on behalf of more than 1,000 individuals forced to work at the mine between 2008 and 2012 and claimed damaged for several domestic torts, as well as breaches of customary international law prohibitions against forced labour; slavery; cruel, inhuman, or degrading treatment; and crimes against humanity.

Nevsun brought a motion to strike the pleadings on the basis that the “Acts of State” doctrine precludes Canadian courts from assessing the sovereign acts of a foreign government: in this case, the Eritrean National Service Program which allegedly enslaved the Plaintiffs. Nevsun also took the position that the Plaintiffs’ claims based on customary international law should be struck down as they had no prospect of success. The motion to strike was unsuccessful and was eventually appealed to the Supreme Court.

Acts of State

The Majority opinion, delivered by Justice Abella, began by addressing the “Acts of State” doctrine and whether it plays a role in Canadian common law. The “Acts of State” doctrine finds its source in English common law and generally operates to hold a “national court incompetent to adjudicate upon the lawfulness of the sovereign acts of a foreign state.”[1] This should be contrasted with the principle of state immunity which extends personal immunity to state officials for acts done in their official capacity.[2]

The “Acts of State” doctrine emerged out of decisions in the 17th and 19th century, which held that “a foreign sovereign, coming into this country, cannot be made responsible here for an act done in his sovereign character in his own country.”[3] The majority noted that the doctrine has since seen a proliferation of limitations, exceptions, and qualifications developed over the intervening years to the present.[4]

Canadian courts have never wholly accepted the “Acts of State” doctrine. While Canadian law has relied on some of the underlying principles, there has not been an all-encompassing doctrine established.[5] Instead of the “Acts of State” doctrine, Canadian courts have the discretion to decline to enforce foreign law where it would violate public policy and are frequently asked to evaluate foreign laws incidentally in many cases and directly in extradition or deportation cases.[6]

The majority noted that to import the UK’s “Acts of State” doctrine into Canada would be to ignore the development of parallel Canadian law. As a result, the “Acts of State” doctrine had no place in Canadian common law and it was no bar to the claim.

Customary International Law

Subsequently, the majority addressed whether the Plaintiffs’ claims, based on customary international law should be struck. As Nevsun was arguing that a breach of a customary international law was not actionable at common law, the Court was not required to determine the merits of the Plaintiffs’ claims, but rather whether they was bound to fail. The question for the majority was whether customary international laws are part of Canadian common law.

The majority’s answer can be simply distilled as “customary international law is also the law of Canada.”[7]

The court quickly concluded that the prohibitions against forced labour; slavery; cruel, inhuman, and degrading treatment; and crimes against humanity were all part of customary international law. However, the majority also noted that there were two major requirements for the development of a norm of customary international law: “general, but not necessarily universal, practice and opinion juris, the belief that such practice amounts to a legal obligation.”[8]

The majority then addressed where and how customary international law was applied in Canada. The majority noted that Canada internalizes customary international laws by incorporating them into its domestic legal structures without the need for legislative action.[9] The majority noted that the rules of customary international law are automatically incorporated into domestic law in the absence of conflicting legislation. “A legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law.”[10]

The majority, having determined that customary international laws, absent conflicting statutes, are part of Canadian common law, held that the Plaintiffs’ claims based on customary international laws are not bound to fail and dismissed Nevsun’s appeal.

The potential consequences of the Supreme Court’s decision are far reaching, particularly for Canadian companies working abroad in partnership with foreign governments. This decision puts the actions of those companies under the microscope and takes away a shield that some might have thought to use to avoid liability. The majority’s clear dismissal of the “Acts of State” doctrine sends a message that Canadian courts are more than willing to pass judgment on Canadian companies involved with foreign governments.

The majority has also opened the door to other potential international class actions. In particular, as customary international law evolves, we may see an evolution in the types of class actions being brought in Canada relying upon international law. It will be interesting to watch developments in international Environmental, Privacy, and law to see if they can be brought into Canada through the approach the Supreme Court has opened in this case.

[1] Nevsun Resources Ltd. v Araya et al., 2020 SCC 5 at para 29.

[2] Ibid at para 30.

[3] Ibid at para 33.

[4] Ibid at paras 34-43

[5] Ibid at para 44.

[6] Ibid at paras 45-54.

[7] Ibid at para 94.

[8] Ibid at para 77.

[9] Ibid at paras 85-86.

[10] Ibid at para 90.

Jacob Millar
Affleck Greene McMurtry LLP

Jacob Millar

Jacob Millar is a versatile lawyer who as a law student and articling student has gained experience in civil and criminal litigation and administrative matters in Ontario, Nova Scotia and the U.K. As an associate with the firm, Jacob represents and advises clients in all manner of commercial disputes and competition law matters.

Contributor's Archive

Contributor's Profile