INTERNATIONAL TORT RISK
INTERNATIONAL
HUMAN RIGHTSBASED TORTS:
A NEW SPECIES OF
LITIGATION RISK
FOR CANADIAN
COMPANIES
OPERATING ABROAD
Hudbay decision highlights how Canadian
companies face a very real risk from
international tort litigation
By H. Scott Fairley and Kim Lawton; WeirFoulds LLP
OVER THE LAST DECADE, Canadian companies operating abroad
(CCOAs) have increasingly come under domestic scrutiny for their actions on foreign territory. Analysis of the risks from foreign environmental assessments, bribery and corruption
prosecutions and securities class actions are now part of the compliance planning work
undertaken by careful CCOAs. A fourth area, international tort litigation principally based
on alleged violations of international human rights norms admitted into Canadian law, has
also emerged as another potential source of costly liability. The recent decision in Choc v.
Hudbay Minerals Inc. et al., 2013 ONSC 1414, wherein Justice Carole Brown ruled that
negligence claims brought by indigenous Guatemalans in three related cases against Hudbay
can proceed to trial in Ontario, has brought this topic to the forefront for the Canadian legal
audience but the risk from international tort litigation pre-dates the Hudbay decision.
In this article we highlight in brief the evolution of this new area of law by examining the
American phenomenon of alien tort litigation; the basis of tort liability under Canadian law
arising from violations of customary international law; and the recent examples of international tort litigation in Canadian courts. We conclude with a short discussion of best practices
for CCOAs to minimize risk of exposure to litigation of this kind. Our overview is introductory only of a new breed of litigation, which will likely command more detailed scrutiny in
the near future.
www.lexpert.ca | LEXPERT • December 2013 | 49
