The Nevsun Decision: A Future Role for Customary International Law Claims in Canadian Class Actions?

Guest blog by Scott Robinson

On February 28, 2020, the Supreme Court of Canada released its long-awaited decision in Nevsun Resources Ltd. v. Araya. The Court’s decision holds important principles for the development and recognition of public international law in Canada, including the potential for corporate liability under it. It also provides an opening for potential future class actions regarding these issues in Canadian courts.

The case initially arose in the context of a proposed class action against Nevsun in B.C. on behalf of more than 1,000 individuals alleged to have been compelled by Eritrea to work in an Eritrean mine owned by Nevsun, a Canadian company, between 2008 and 2012. In addition to various torts under traditional Canadian law, the claim sought damages for breaches of customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity as separate and distinct actionable claims in their own right under Canadian law.

It was found in the B.C. lower courts that the class action regime could not be availed because the proposed plaintiffs were not B.C. residents, and a common law representative proceeding could not be maintained, such that the case was to proceed as a multi-party traditional lawsuit. Nevsun, however, also moved to strike the customary international law claims as non-justiciable or doomed to fail, yet the B.C. courts all refused to do so. Nevsun appealed on these points. The majority of the Supreme Court of Canada upheld the B.C. courts and dismissed Nevsun’s appeal.

The most pivotal points in the Supreme Court of Canada’s majority decision are as follows:

1.  Customary international law remains a core and evolving part of Canadian common law by virtue of the “doctrine of adoption” that posits customary international law is automatically adopted into domestic law without any need for legislative action. This has long been the end result of Canada’s monist tradition with respect to customary international law, but the Court’s decision firmly settles this issue. Unlike foreign law, judicial notice is to be taken of customary international law. Moreover, Canadian courts have an express “role in implementing and advancing customary international law”.

2.  Claims for violations of customary international law by private actors will generally survive a motion to strike in Canada, even if novel. These claims can be actionable at common law, save for conflicting legislation. It is not necessary that such claims be packaged under existing torts, or that new nominate torts be recognized to advance such claims, or that traditional tort principles be relied upon to achieve damages or other remedy. Indeed, a separate, direct, private law damages remedy for breaches of customary international legal norms may be possible.

3.  If there was ever any doubt, the “act of state doctrine” – which in short precludes domestic courts from assessing the sovereign acts of a foreign government, even if in a peripheral manner – never was, and certainly is not, part of Canadian law.

4.  Endorsing a modern non-state-centric public international law, the decision expressly holds open the idea of corporate private civil liability in Canada for violations of customary international law attributable to the corporation. Fundamentally, claims for such redress against a corporationcan survive a motion to strike: “it is 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’, or indirect liability for their involvement in … ‘complicity offenses’”. The sheer force of this legal development as regards international legal liability for multinational corporations operating in or from Canada cannot be overstated. As a minority of the Court noted, however, it is also a development that generally puts Canada in conflict with other jurisdictions, especially the United States, which have typically found corporations to be beyond the scope of liability for violations of customary international law. It will be very interesting to see how this norm of at least potential prima facie corporate liability at international law will continue to develop in Canadian jurisprudence. The trial of the Nevsun case may provide this opportunity, but no doubt others will follow.

5.  As for the potential impact of the decision on class actions in Canada, it is no secret that class actions have long been a vehicle capable of shifting public policy. That said, this opening of the door to claims for breaches of customary international law in Canadian courts – and significantly, potentially as against corporations – only further aligns with this notion. It would not be surprising to find these types of stand-alone claims for customary violations to be litigated more and more in Canadian class actions going forward, especially as Canadian class actions law continues to address more transnational issues concerning transnational actors.

Ultimately, the scope and substance of any private law remedy for such breaches of customary international law is at present unsettled. The question remains: “can our domestic common law develop appropriate remedies for breaches of adopted customary international law norms?” And further, can we develop “a civil remedy in domestic law for corporate violations of the customary international law norms adopted in Canadian law”? It was not “plain and obvious” to the majority of the Supreme Court of Canada that both questions could not be answered affirmatively. Indeed, “[a] good argument can be made that appropriately remedying these violations 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.” If so, and if advanced in a class-wide setting, such claims could not only possibly lead to larger classes, but also lead to damages worth millions, especially when considering the “heinous nature of the harm caused by this conduct” typically found to have violated customary international law principles.

Scott Robinson is an associate at Strosberg Sasso Sutts LLP in Windsor. Views are his own.

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