Nevsun Resources Ltd. v. Araya

Nevsun Resources Ltd. v. Araya
Collection
Supreme Court Judgments
Date
2020-02-28
Neutral citation
2020 SCC 5
Report
[2020] 1 SCR 166
Case number
37919
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
British Columbia
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Nevsun Resources Ltd. v. Araya, 2020 SCC 5, [2020] 1 S.C.R. 166
Appeal Heard: January 23, 2019 Judgment Rendered: February 28, 2020 Docket: 37919
Between:
Nevsun Resources Ltd.
Appellant
and
Gize Yebeyo Araya, Kesete Tekle Fshazion and Mihretab Yemane Tekle
Respondents
- and -
International Human Rights Program, University of Toronto Faculty of Law, EarthRights International, Global Justice Clinic at New York University School of Law, Amnesty International Canada, International Commission of Jurists, Mining Association of Canada and MiningWatch Canada
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 133)
Joint Reasons Dissenting in Part: (paras. 134 to 266)
Dissenting Reasons: (paras. 267 to 313)
Abella J. (Wagner C.J. and Karakatsanis, Gascon and Martin JJ. concurring)
Brown and Rowe JJ.
Côté J. (Moldaver J. concurring)
Nevsun Resources Ltd. Appellant
v.
Gize Yebeyo Araya,
Kesete Tekle Fshazion and Mihretab Yemane Tekle Respondents
and
International Human Rights Program, University of Toronto Faculty of Law,
EarthRights International,
Global Justice Clinic at New York University School of Law,
Amnesty International Canada,
International Commission of Jurists,
Mining Association of Canada and
MiningWatch Canada Interveners
Indexed as: Nevsun Resources Ltd. v. Araya
2020 SCC 5
File No.: 37919.
2019: January 23; 2020: February 28.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for british columbia
Public international law — Human rights — Act of state doctrine — Customary international law — Jus cogens — Peremptory norms — Doctrine of adoption — Direct remedy for breach of customary international law — Eritrean workers commencing action against Canadian corporation in British Columbia — Workers alleging they were forced to work at mine owned by Canadian corporation in Eritrea and subjected to violent, cruel, inhuman and degrading treatment and seeking damages for breaches of customary international law prohibitions and of domestic torts — Corporation bringing motion to strike pleadings on basis of act of state doctrine and on basis that claims based on customary international law have no reasonable prospect of success — Whether act of state doctrine forms part of Canadian common law — Whether customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment and crimes against humanity can ground claim for damages under Canadian law — Whether claims should be struck.
Three Eritrean workers claim that they were indefinitely conscripted through Eritrea’s military service into a forced labour regime where they were required to work at a mine in Eritrea. They claim they were subjected to violent, cruel, inhuman and degrading treatment. The mine is owned by a Canadian company, Nevsun Resources Ltd. The Eritrean workers started proceedings in British Columbia against Nevsun and sought damages for breaches of customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. They also sought damages for breaches of domestic torts including conversion, battery, unlawful confinement, conspiracy and negligence. Nevsun brought a motion to strike the pleadings on the basis of the act of state doctrine, which precludes domestic courts from assessing the sovereign acts of a foreign government. Nevsun also took the position that the claims based on customary international law should be struck because they have no reasonable prospect of success. The chambers judge dismissed Nevsun’s motion to strike, and the Court of Appeal agreed.
Held (Brown and Rowe JJ. dissenting in part and Moldaver and Côté JJ. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Abella, Karakatsanis, Gascon and Martin JJ.: The act of state doctrine and its underlying principles as developed in Canadian jurisprudence are not a bar to the Eritrean workers’ claims. The act of state doctrine has played no role in Canadian law and is not part of Canadian common law. Whereas English jurisprudence has reaffirmed and reconstructed the act of state doctrine, Canadian law has developed its own approach to addressing the twin principles underlying the doctrine: conflict of laws and judicial restraint. Both principles have developed separately in Canadian jurisprudence rather than as elements of an all-encompassing act of state doctrine. As such, in Canada, the principles underlying the act of state doctrine have been completely subsumed within this jurisprudence. Canadian courts determine questions dealing with the enforcement of foreign laws according to ordinary private international law principles which generally call for deference, but allow for judicial discretion to decline to enforce foreign laws where such laws are contrary to public policy, including respect for public international law.
Nor has Nevsun satisfied the test for striking the pleadings dealing with customary international law. Namely it has not established that it is “plain and obvious” that the customary international law claims have no reasonable likelihood of success.
Modern international human rights law is the phoenix that rose from the ashes of World War II and declared global war on human rights abuses. Its mandate was to prevent breaches of internationally accepted norms. Those norms were not meant to be theoretical aspirations or legal luxuries, but moral imperatives and legal necessities. Conduct that undermined the norms was to be identified and addressed.
While states were historically the main subjects of international law, it has long-since evolved from this state-centric template. The past 70 years have seen a proliferation of human rights law that transformed international law and made the individual an integral part of this legal domain, reflected in the creation of a complex network of conventions and normative instruments intended to protect human rights and ensure compliance with those rights. The rapid emergence of human rights signified a revolutionary shift in international law to a human-centric conception of global order. The result of these developments is that international law now works not only to maintain peace between states, but to protect the lives of individuals, their liberty, their health, and their education. The context in which international human rights norms must be interpreted and applied today is one in which such norms are routinely applied to private actors. It is therefore not plain and obvious that corporations today enjoy a blanket exclusion under customary international law from direct liability for violations of obligatory, definable, and universal norms of international law.
Customary international law is the common law of the international legal system, constantly and incrementally evolving based on changing practice and acceptance. Canadian courts, like all courts, play an important role in its ongoing development. There are two requirements for a norm of customary international law to be recognized as such: general but not necessarily universal practice, and opinio juris, namely the belief that such practice amounts to a legal right or obligation. When international practice develops from being intermittent into being widely accepted and believed to be obligatory, it becomes a norm of customary international law.
Within customary international law, there is a subset of norms known as jus cogens, or peremptory norms, from which no derogation is permitted. The workers claim breaches not only of norms of customary international law, but of norms accepted to be of such fundamental importance as to be characterized as jus cogens. Crimes against humanity have been described as among the least controversial examples of violations of jus cogens. Compelling authority confirms that the prohibitions against slavery, forced labour and cruel, inhuman and degrading treatment have attained the status of jus cogens. Refusing to acknowledge the differences between existing domestic torts and forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity, may undermine the court’s ability to adequately address the heinous nature of the harm caused by this conduct.
Canada has long followed the conventional path of automatically incorporating customary international law into domestic law via the doctrine of adoption, making it part of the law of Canada. Therefore, customary international law is automatically adopted into domestic law without any need for legislative action. The fact that customary international law is part of our common law means that it must be treated with the same respect as any other law.
A compelling argument can therefore be made that since customary international law is part of Canadian common law, a breach by a Canadian company can theoretically be directly remedied. Since the workers’ claims are based on norms that already form part of our common law, it is not “plain and obvious” that our domestic common law cannot recognize a direct remedy for their breach. Appropriately remedying the violations of jus cogens and norms of customary international law requires different and stronger responses than typical tort claims, given the public nature and importance of the violated rights involved, the gravity of their breach, the impact on the domestic and global rights objectives, and the need to deter subsequent breaches.
Nevsun has not demonstrated that the Eritrean workers’ claim based on breaches of customary international law should be struck at this preliminary stage. The Court is not required to determine definitively whether the Eritrean workers should be awarded damages for the alleged breaches of customary international law. It is enough to conclude that the breaches of customary international law, or jus cogens, relied on by the Eritrean workers may well apply to Nevsun. Since the customary international law norms raised by the Eritrean workers form part of the Canadian common law, and since Nevsun is a company bound by Canadian law, the claims of the Eritrean workers for breaches of customary international law should be allowed to proceed.
Per Brown and Rowe JJ. (dissenting in part): The appeal should be allowed in part. There is agreement with the majority that the dismissal of Nevsun’s application to strike the pleadings should be upheld as it regards the foreign act of state doctrine. However, there is disagreement on the matter of the use of customary international law. The workers’ claims for damages based on breach of customary international law disclose no reasonable cause of action and are bound to fail.
Two separate theories have been advanced upon which the pleadings of the Eritrean workers could be upheld. The majority’s theory is that the workers seek to have Canadian courts recognize a cause of action for breach of customary international law and to prosecute a claim thereunder. The second theory is that the workers seek to have Canadian courts recognize four new nominate torts inspired by customary international law: use of forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. The latter theory is more consistent with the pleadings and with how the workers framed their claims before the Court. Regardless, the workers’ claims are bound to fail on either theory.
The claims are bound to fail on the first theory. On this theory, the workers’ pleading is viable only if international law is given a role that exceeds the limits placed upon it by Canadian law. For this pleading to succeed, then, Canadian law must change. Such a change would require an act of a competent legislature, as it does not fall within the competence of the courts. Without change, the pleading is doomed to fail.
Substantively, the content of customary international law is established by the actions of states on the international plane. A rule of customary international law exists when state practice evidences a custom and the practicing states accept that custom as law. These two requirements are called state practice and opinio juris.
The high bar established by the twin requirements of state practice and opinio juris reflects the extraordinary nature of customary international law: it leads courts to adopt a role otherwise left to legislatures; and, unless a state persistently objects, its recognition binds states to rules to which they have not affirmatively consented. Once a norm of customary international law has been established, it can become a source of Canadian domestic law unless it is inconsistent with extant statutory law.
The primacy given to contrary legislation preserves the legislature’s ability to control the effects of international laws in the domestic legal system. If the legislature passes a law contravening a prohibitive norm of international law, that law is not subject to review by the courts. Similarly, if the legislature does not pass a law in contravention of a mandatory norm of international law, the courts cannot construct that law for them, unless doing so is otherwise within the courts’ power. Courts may presume the intent of the legislature is to comply with customary international law norms, but that presumption is rebuttable: customary international law has interpretive force, but it does not formally constrain the legislature. Canada and the provinces have the ability, should they choose to exercise it, to violate norms of customary international law. But that is a choice that only Parliament or the provincial legislatures can make; the federal and provincial governments cannot do so without the authorization of those legislative bodies.
To determine whether a statute prevents amending the common law, courts must precisely identify the norm, determine how the norm would best be given effect and then determine whether any legislation prevents the court from changing the common law to create that effect. If no legislation does, courts should implement that change to the common law. If any legislation does, the courts should respect that legislative choice, and refrain from changing the common law.
Procedurally, the content of customary international law is established in Canada by the court first finding the facts of state practice and opinio juris. When there is or can be no dispute about the existence of a norm of customary international law, it is appropriate for the courts to take judicial notice. Courts will also be called on to evaluate both whether there exists a custom generally among states that is applied uniformly, and whether the practicing states respect the custom out of the belief that doing so is necessary in order to fulfil their obligations under customary international law. Once the facts of state practice and opinio juris are found, the second step is to identify which, if any, norms of customary international law must be recognized to best explain these facts. This is a question of law. The final step is to apply the norms, as recognized, to the facts of the case at bar. This is a question of mixed fact and law.
Applying this structure to the majority’s theory, there is agreement with the majority that: there are prohibitions at international law against crimes against humanity, slavery, the use of forced labour, and cruel, inhuman, and degrading treatment; these prohibitions have the status of jus cogens; individuals and states both must obey some customary international law prohibitions, and it is a question for the trial judge whether they must obey these specific prohibitions; and individuals are beneficiaries of these prohibitions.
There is, however, disagreement that the majority’s reasons provide a viable path to showing that a corporation may be civilly liable in Canada for a breach of customary international law norms. It is plain and obvious that corporations are excluded from direct liability at customary international law. Corporate liability for human rights violations has not been recognized under customary international law; at most, the proposition that such liability has been recognized is equivocal. Customary international law is not binding if it is equivocal. Absent a binding norm, the workers’ cause of action is clearly doomed to fail.
It is unclear how the majority deduces the potential existence of a liability rule from an uncontroversial statement of a prohibition. Perhaps it sees a prohibition of customary international law as requiring Canada to provide domestic liability rules; perhaps it sees the prohibition as itself containing a liability rule; or perhaps it sees the doctrine of adoption as producing a liability rule in response to a prohibition. None of these options provide an interpretation of the majority’s theory of the case that makes the claims viable.
The workers did not plead the necessary facts of state practice and opinio juris to support the proposition that a prohibition of customary international law requires states to provide domestic civil liability rules. Indeed, states are typically free to meet their international obligations according to their own domestic institutional arrangements and preferences. A civil liability rule is but one possibility. A prohibition could also be effected through, for example, the criminal law or through administrative penalties.
The workers also did not plead the necessary facts to support the proposition that a prohibition of customary international law itself contains a liability rule. An essay that states it would not make sense to argue that international law may impose criminal liability on corporations, but not civil liability does not constitute state practice or opinio juris. State practice is the difference between civil liability and criminal liability at customary international law. Outside the sphere of criminal law, there is no corresponding acceptance-of-liability rule regarding individuals. For a customary international law prohibition to create a civil liability rule would require there to be widespread state practice that does not exist today.
Nor can the doctrine of adoption play the role of converting a general prohibition upon states and criminal prohibitions upon individuals into a civil liability rule. Applying the three-step process for determining whether to amend private common law rules in response to the recognition of a mandatory norm of customary international law, the relevant norms here are that Canada must prohibit and prevent slavery by third parties, mutatis mutandis for each of the claims. Although such norms may exist, they are appropriately given effect through, and only through the criminal law. The criminal law does not provide private law causes of action. Moreover, adopting the norms as crimes cannot be done because Parliament has, in s. 9 of the Criminal Code , clearly prohibited courts from creating criminal laws via the common law.
The majority’s theory is no more tenable if a step back is taken and it is considered more conceptually. Essentially, the majority’s theory amounts to saying that the doctrine of adoption has what jurists in Europe would call horizontal effect. It would be astonishing were customary international law to have horizontal effect where the Canadian Charter of Rights and Freedoms does not. The majority’s approach also amounts to recognizing a private law cause of action for simple breach of customary international public law. This would be similarly astonishing, since there is no private law cause of action for simple breach of statutory Canadian public law.
Nor does the presence of international criminal liability rules make necessary the creation of domestic torts, at least outside the American context. In that country, the hoary and historically unique Alien Tort Statute requires courts to treat international law as creating civil liabilities. Essentially, the majority’s approach would amount to Americanizing the Canadian doctrine of adoption. Canadian courts cannot adopt a U.S. statute when Parliament and the legislatures have not.
While there is agreement that where there is a right, there must be a remedy, the right to a remedy does not necessarily mean a right to a particular form, or kind of remedy. Further, a difference merely of damages or the extent of harm will not suffice to ground a new tort.
Canadian law, as is, furnishes an appropriate cause of action. When there is a breach of rights that is more grave or that needs to be deterred, increased damages are available under existing tort law. Punitive damages have as a goal the denunciation of misconduct. Moreover, a court can express its condemnation of wrongful conduct through its reasons, by stating in them that a party committed human rights abuses, even if the ultimate legal conclusion is that they committed assault, battery or other wrongs. Other states also recognize that such ordinary private law actions provide mechanisms to address the harm arising out of a grave breach of international criminal law. Even were this part of Nevsun’s motion to strike to be granted, the workers could pursue in Canada the same relief they could obtain in most other states.
The only remaining way to support the majority’s theory of the case is for the doctrine of adoption to change so that it provides a civil liability rule for breaches of prohibitions at customary international law. The Court cannot make such a change. Although, it is open to Parliament and the legislatures to make such a change, absent statutory intervention, the ability of the courts to shape the law is, as a matter of common-law methodology, constrained.
Courts develop the law incrementally. For a change to be incremental, it cannot have complex and uncertain ramifications. To alter the doctrine of adoption would set the law on an unknown course whose ramifications cannot be accurately gauged. It is thus for Parliament to decide whether to change the doctrine of adoption to provide courts the power to convert prohibitive rules of international law into free-standing torts. Parliament has not done so.
The claims are also bound to fail on the second theory that the workers sought to have the court recognize four new nominate torts inspired by international law: use of forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity.
Three clear rules for when the courts will not recognize a new nominate tort have emerged: where there are adequate alternative remedies; where it does not reflect and address a wrong visited by one person upon another; and where the change wrought upon the legal system would be indeterminate or substantial. The first rule, that of necessity, acknowledges at least three alternative remedies that could make recognizing a new tort unnecessary: an existing tort, an independent statutory scheme, and judicial review. A difference merely of damages or the extent of harm will not suffice. The second rule is reflected in the courts’ resistance to creating strict or absolute liability regimes. The third rule reflects the courts’ respect for legislative supremacy and the courts’ mandate to ensure that the law remains stable, predictable and accessible.
The proposed tort of cruel, inhuman or degrading treatment should not be recognized as a new nominate tort, because it is encompassed by the extant torts of battery or intentional infliction of emotional distress. The proposed tort of crimes against humanity also should not be recognized, because it is too multifarious a category to be the proper subject of a nominate tort. It is, however, possible that the proposed torts of slavery and use of forced labour would pass the test for recognizing a new nominate tort.
Nevertheless, these proposed torts should not be recognized for the first time in a proceeding based on conduct that occurred in a foreign territory. In general, tortious conduct abroad will not be governed by Canadian law, even where the wrong is litigated before Canadian courts, except when the foreign state’s law is so repugnant to the fundamental morality of the Canadian legal system as to lead the court not to apply it. Developing Canadian law in such circumstances is inadvisable because the law that is appropriate for regulating a foreign state may not also be law that is appropriate for regulating Canada and because doing so would take courts outside the limits of their institutional competence. The domain of foreign relations is perhaps the most obvious example of where the executive is competent to act, but where courts lack the institutional competence to do so. Setting out a novel tort in the exceptional circumstance of a foreign state’s law being held by the court to be so repugnant to Canadian morality would be an intrusion into the executive’s dominion over foreign relations. The courts’ role within Canada is, primarily, to adjudicate on disputes within Canada, and between Canadian residents.
Not granting the motion to strike in this case offers this lesson: the more nebulous the pleadings and legal theory used to protect them, the more likely they are to survive a motion to strike.
The creation of a cause of action for breach of customary international law would require the courts to encroach on the roles of both the legislature (by creating a drastic change in the law and ignoring the doctrine of incrementalism), and the executive (by wading into the realm of foreign affairs). It is not up to the Court to ignore the foundations of customary international law, which prohibits certain state conduct, in order to create a cause of action against private parties. Nor is it for the courts to depart from foundational principles of judicial law-making in tort law. The result of doing so will be instability and uncertainty.
Per Moldaver and Côté JJ. (dissenting): There is agreement with Brown and Rowe JJ.’s analysis and conclusion concerning the workers’ claims inspired by customary international law. It is plain and obvious that they are bound to fail. In addition, the extension of customary international law to corporations represents a significant departure in this area of law. The widespread, representative and consistent state practice and opinio juris required to establish a customary rule do not presently exist to support the proposition that international human rights norms have horizontal application between individuals and corporations.
There is disagreement with the majority concerning the existence and applicability of the act of state doctrine. The workers’ claims here are not amenable to adjudication within Canada’s domestic legal order. Instead, they are allocated to the plane of international affairs for resolution in accordance with the principles of public international law and diplomacy. They are therefore not justiciable and should be dismissed in their entirety.
There is agreement with the majority that Canada’s choice of law jurisprudence plays a similar role to that of certain aspects of the act of state doctrine; however, the act of state doctrine includes a second branch distinct from choice of law which renders some claims non-justiciable. This second branch of the doctrine bars the adjudication of civil actions which have their foundation in allegations that a foreign state has violated public international law. Whether referred to as a branch of the act of state doctrine or as a specific application of the more general doctrine of justiciability, these claims are not justiciable because adjudicating them would impermissibly interfere with the conduct by the executive of Canada’s international relations.
Justiciability is rooted in a commitment to the constitutional separation of powers. A court must conform to the separation of powers by showing deference for the roles of the executive and the legislature in their respective spheres so as to refrain from unduly interfering with the legitimate institutional roles of those orders. A court has the institutional capacity to consider international law questions, and its doing so is legitimate, if they also implicate questions with respect to constitutional rights, the legality of an administrative decision or the interface between international law and Canadian public institutions. If, however, a court allows a private claim which impugns the lawfulness of a foreign state’s conduct under international law, it will be overstepping the limits of its proper institutional role. The adjudication of such claims impermissibly interferes with the conduct by the executive of Canada’s international relations. Litigation between private parties founded upon allegations that a foreign state has violated public international law is not the proper subject matter of judicial resolution because questions of international law relating to internationally wrongful acts of foreign states are not juridical claims amenable to adjudication on judicial or manageable standards.
While a court may consider the legality of acts of a foreign state under municipal or international law if the issue arises incidentally, a claim will not be justiciable if the allegation that the foreign state acted unlawfully is central to the litigation. In the instant case, the workers’ claims are not justiciable because the issue of the legality of Eritrea’s acts under international law is central to those claims and requires a determination that Eritrea has committed an internationally wrongful act. As the workers allege that Nevsun is liable because it was complicit in the Eritrean authorities’ alleged internationally wrongful acts, Nevsun can be liable only if the acts of the actual alleged perpetrators — Eritrea and its agents — were unlawful as a matter of public international law. Since the workers’ claims, as pleaded, requires a determination that Eritrea has violated international law, they must fail.
Cases Cited
By Abella J.
Distinguished: Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176; considered: Belhaj v. Straw, [2017] UKSC 3, [2017] A.C. 964; Blad v. Bamfield (1674), 3 Swans. 604, 36 E.R. 992; Duke of Brunswick v. King of Hanover (1848), 2 H.L.C. 1, 9 E.R. 993; Yukos Capital Sarl v. OJSC Rosneft Oil Co. (No. 2), [2012] EWCA Civ 855, [2014] Q.B. 458; Oppenheimer v. Cattermole, [1976] A.C. 249; Buttes Gas and Oil Co. v. Hammer (No. 3), [1982] A.C. 888; Moti v. The Queen, [2011] HCA 50; Laane and Baltser v. Estonian State Cargo & Passenger s.s. Line, [1949] S.C.R. 530; Hunt v. T&N plc, [1993] 4 S.C.R. 289; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; referred to: R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147; Kuwait Airways Corpn. v. Iraqi Airways Co. (Nos. 4 and 5), [2002] UKHL 19, [2002] 2 A.C. 883; Belhaj v. Straw MP, [2014] EWCA Civ 1394, [2016] 1 All E.R. 121; Habib v. Commonwealth of Australia, [2010] FCAFC 12; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Tolofson v. Jensen, [1994] 3 S.C.R. 1022; Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Canada v. Schmidt, [1987] 1 S.C.R. 500; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; India v. Badesha, 2017 SCC 44, [2017] 2 S.C.R. 127; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441; Willow v. Chong, 2013 BCSC 1083; North Sea Continental Shelf, Judgment, I.C.J. Report 1969, p. 3; Case concerning certain German interests in Polish Upper Silesia (Germany v. Poland) (1926), P.C.I.J. Ser. A, No. 7; Prosecutor v. Jelisić, IT-95-10-T, 14 December 1999; Prosecutor v. Krstić, IT-98-33-T, 2 August 2001; Prosecutor v. Erdemović, IT-96-22-A, 7 October 1997; The Paquete Habana, 175 U.S. 677 (1900); Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] 1 Q.B. 529; Triquet v. Bath (1764), 3 Burr. 1478, 97 E.R. 936; Chung Chi Cheung v. The King, [1939] A.C. 160; The Ship “North” v. The King (1906), 37 S.C.R. 385; Reference as to Whether Members of the Military or Naval Forces of the United States of America are Exempt from Criminal Proceedings in Canadian Criminal Courts, [1943] S.C.R. 483; Friedmann Equity Developments Inc. v. Final Note Ltd., 2000 SCC 34, [2000] 1 S.C.R. 842; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210; Watkins v. Olafson, [1989] 2 S.C.R. 750; Sidaway v. Board of Governors of the Bethlem Royal Hospital, [1985] 1 A.C. 871; Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; Great Western Railway v. Brown (1879), 3 S.C.R. 159; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; Dunlea v. Attorney-General, [2000] NZCA 84, [2000] 3 N.Z.L.R. 136; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.
By Brown and Rowe JJ. (dissenting in part)
Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; British Columbia/Yukon Assn. of Drug War Survivors v. Abbotsford (City), 2015 BCCA 142, 75 B.C.L.R. (5th) 69; Kripps v. Touche Ross & Co. (1992), 69 B.C.L.R. (2d) 62; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 465, Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176; R. v. Jones (Margaret), [2006] UKHL 16, [2007] 1 A.C. 136; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; R. v. Finta, [1994] 1 S.C.R. 701; Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2007); Kadic v. Karadžić, 70 F.3d 232 (1995); Bouzari v. Islamic Republic of Iran (2004), 71 O.R. (3d) 675; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; Holland v. Saskatchewan, 2008 SCC 42, [2008] 2 S.C.R. 551; West Rand Central Gold Mining Company v. Rex, [1905] 2 K.B. 391; Chung Chi Cheung v. The King, [1939] A.C. 160; Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551; Merrifield v. Canada (Attorney General), 2019 ONCA 205, 145 O.R. (3d) 494, leave to appeal refused, S.C.C. Bull., September 20, 2019, 7; R. v. Vaillancourt, [1987] 2 S.C.R. 636; A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177; Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126; Dhillon v. Dhillon, 2006 BCCA 524, 232 B.C.A.C. 249; Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595; Watkins v. Olafson, [1989] 2 S.C.R. 750; London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299; R. v. Salituro, [1991] 3 S.C.R. 654; Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210; Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241; R. (Miller) v. Secretary of State, [2017] UKSC 5, [2018] A.C. 61; Frame v. Smith, [1987] 2 S.C.R. 99; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; McLean v. McLean, 2019 SKCA 15; 6165347 Manitoba Inc. v. Jenna Vandal, 2019 MBQB 69; Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181; Harris v. GlaxoSmithKline Inc., 2010 ONSC 2326, 101 O.R. (3d) 665, aff’d 2010 ONCA 872, 106 O.R. (3d) 661, leave to appeal refused, [2011] 2 S.C.R. vii; Tolofson v. Jensen, [1994] 3 S.C.R. 1022; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44.
By Côté J. (dissenting)
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2010), aff’d 569 U.S. 108 (2013); Jones v. Ministry of Interior of Saudi Arabia, [2006] UKHL 26, [2007] 1 A.C. 270; Belhaj v. Straw, [2017] UKSC 3, [2017] A.C. 964; Johnstone v. Pedlar, [1921] 2 A.C. 262; Oppenheimer v. Cattermole, [1976] A.C. 249; Kuwait Airways Corpn. v. Iraqi Airways Co. (Nos. 4 and 5), [2002] UKHL 19, [2002] 2 A.C. 883; Laane and Baltser v. Estonian State Cargo & Passenger s.s. Line, [1949] S.C.R. 530; Buck v. Attorney General, [1965] 1 All E.R. 882; Hunt v. T&N plc, [1993] 4 S.C.R. 289; Buttes Gas and Oil Co. v. Hammer (No. 3), [1982] A.C. 888; Blad v. Bamfield (1674), 3 Swans. 604, 36 E.R. 992; Duke of Brunswick v. King of Hanover (1848), 2 H.L.C. 1, 9 E.R. 993; Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176; Presbyterian Church of Sudan v. Talisman Energy, Inc., 2005 WL 2082846; International Association of Machinists and Aerospace Workers v. Organization of Petroleum Exporting Countries, 649 F.2d 1354 (1981); Reference as to Powers to Levy Rates on Foreign Legations and High Commissioners’ Residences, [1943] S.C.R. 208; Reference re Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792; Reference re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86; W. S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp., International, 493 U.S. 400 (1990).
Statutes and Regulations Cited
Alien Tort Statute, 28 U.S.C. § 1350 (2018).
Business Corporations Act, S.B.C. 2002, c. 57.
Canadian Charter of Rights and Freedoms , s. 7 .
Constitution Act, 1867 , s. 96 .
Constitution Act, 1982 , s. 52(1) .
Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24 .
Criminal Code , R.S.C. 1985, c. C-46, s. 9 .
European Communities Act 1972 (U.K.), 1972, c. 68.
Human Rights Act 1998 (U.K.), 1998, c. 42, s. 6(1), (3).
Justice for Victims of Terrorism Act , S.C. 2012, c. 1, s. 2, s. 4 .
Law and Equity Act, R.S.B.C. 1996, c. 253, s. 2.
State Immunity Act , R.S.C. 1985, c. S-18 .
Supreme Court Civil Rules, B.C. Reg. 168/2009, rr. 9-5, 21-8.
Treaties and Other International Instruments
African Charter on Human and Peoples’ Rights, 1520 U.N.T.S. 217, art. 5.
American Convention on Human Rights, 1144 U.N.T.S. 123, art. 5.
American Declaration of the Rights and Duties of Man, April 30, 1948, art. 26.
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36, art. 16.
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 3.
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 37.
European Convention for the Prevention