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INTERNATIONAL TORT RISK ary international law, jus cogens norms require no formal implementation process in order for these rules to be incorporated into the body of Canadian common law. Compelling examples of jus cogens norms include prohibitions against the use of force; genocide; racial discrimination; crimes against humanity; and slave trading or human trafficking. Serious allegations of human rights violations often invoke jus cogens norms. In practice, this means that customary international law can create liability for private actors — both individuals and corporations. To put this in context, recall that Talisman was accused of aiding and abetting the government of Sudan in a campaign of genocide, war crimes and crimes against humanity. At the time of the allegations, Sudan was embroiled in civil war, and its indirect subsidiary had no choice but to acquiesce to the actions of the Sudanese government and military in the context of protecting the consortium's employees and operations. Toward that end, the actions that were scrutinized by the Southern District Court of New York were not obviously nefarious ‒ they included building roads, upgrading airstrips for transport, paying royalties to the local government and designating areas for oil exploration ‒ and indeed the case against Talisman ultimately failed to frame causes of action meriting a trial. Nonetheless, Talisman was subjected to protracted litigation with consequent impact on its reputation and shareholder value. Parliament has recently enacted a limited analogue to the ATS, the Justice for Victims of Terrorism Act (S.C. 2012, c. 1, s. 2; in force on assent March 13, 2012), which is Part I of a federal omnibus bill that also amended, inter alia, provisions of the State Immunity Act "to deter terrorism by establishing a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters" (ibid., s. 3). This is, however, very focused legislation that does not cover the general field of international human rights-based tort liability we address here. Nor, as our previous discussion demonstrates and as the case law to date (discussed below) further illustrates, is such legislation necessary to support such cases against private actors. Recent Examples of International Tort in Canadian Domestic Courts At first blush, it may appear that the threshold cases advancing claims of civil liability for alleged crimes against humanity by CCOAs have met with virtually no success — none have yet reached a trial on the merits. But on a closer review, it becomes clear that courts have not rejected these types of claims outright (i.e., for want of subject matter jurisdiction). Rather, the cases brought to date have failed for reasons entirely unique to their own facts and are not indicative of problems with this type of claim in all circumstances. For example, litigation failed in two separate instances on purely procedural grounds, the courts viewing themselves as a too inconvenient forum Recherches Internationales Québec v. Cambior Inc., [1998] Q.J. No. 2554. Plaintiffs brought a class-action suit against Cambior for toxic waste, which was released into a river used by indigenous people, claiming that the company acted with negligence. Québec Superior Court dismissed the case on grounds of forum non conveniens. > Court found that Guyana was the proper forum. Bil'In (Village Council) et al. v. GreenPark International Inc. et al. 2010 QCCA 1455, 322 D.L.R. (4th) 232 (Que. C.A.) aff'g Sup. Ct. decision 2009 QCCS 4151, leave to appeal to SCC dismissed. Plaintiffs sought compensation for construction of residential housing on disputed lands on the West Bank of the Jordan River. Québec Court of Appeal dismissed the case on grounds of forum non conveniens. > Court found that Israel's High Court of Justice was the proper forum. Piedra v. Copper Mesa Mining Corporation, 2011 ONCA 191, aff'g Sup. Ct. decision 2010 ONSC 2421. Plaintiffs alleged that Copper Mesa (vicariously), its two Ontario-resident directors and the Toronto Stock Exchange (TSX) were negligent in preventing violence suffered by Ecuadorians opposed to the corporation's mining project. Ontario Superior Court dismissed the case on grounds that claims disclosed no reasonable cause of action. > Court found that a duty of care could neither be imposed on the TSX nor the two directors. Canadian Association Against Impunity v. Anvil Mining Limited, 2012 QCCA 117; Que. C.A., 24 January 2012, rev'g Que. Sup. Ct., 27 April, 2011, leave to appeal to SCC dismissed. Plaintiff alleged that Anvil was complicit with irregular military units in the Democratic Republic of Congo in expelling insurgents from a town near its mine. Québec Superior Court found the case was properly bought in Québec, but the decision was overturned by the Québec Court of Appeal. > Court found there were insufficient connections to Québec. Choc v. Hudbay Minerals Inc. et al., 2013 ONSC 1414. Plaintiffs allege that Hudbay was negligent in failing to prevent human rights abuses at a Guatemalan mine operated by Hudbay's local subsidiary. Subject matter jurisdiction was not an issue before the Ontario Superior Court and in personem jurisdiction was accepted. > Case is still before the courts. www.lexpert.ca | LEXPERT • December 2013 | 51