A distant company in East Africa exploits local citizens in accordance with local law and practice. The manner of treatment of such persons is alleged to be inhumane and similar to slave-like conditions. Can such manner of treatment to these employees be afforded legal redress in Canadian courts, with the sole line of connection being a Canadian owner of this local enterprise?
In a word, yes. The allegations in this case remain just that. The Supreme Court of Canada, however, has settled the legal basis of the claim and allowed the case to proceed to trial to be proven and adjudicated on its merits.
The Factual Basis of the Case
Eritrea is a small country in East Africa. It maintains a program that mandates military or similar public service for all its citizens upon reaching age 18. This mission requires such persons to work at projects designated by the government of the day. It is titled with the innocuous term “National Service Program”.
The Bisha Mine is a company located in this jurisdiction. It is owned by a Canadian company known as Nevsun Resources Ltd., against which the case has been brought. The head office is located in British Columbia.
The workers alleged that they were forced to work in inhumane conditions, ones which were pleaded to violate “customary international law”. These included a workday of 12 hours a day, six days a week, working in temperatures close to 50 degrees C. The employees also alleged that they were frequently the subject of physical assaults in the course of their employment. These persons escaped from these alleged brutal conditions sought and attained refugee status in Canada and commenced this proceeding.
The Legal Issues
International law recognizes a concept known as “customary international law”. The claim was well pleaded as it was argued that the forced conditions of work, as summarized above, were violations of this standard. Ultimately, the Canadian head office, Nevsun was the apparent benefactor of these conditions.
The fundamental issue presented for determination was whether such a principle, customary international law, was a recognized principle of Canadian common law. To this question, the Supreme Court decided affirmatively. Certain rules of international law, it concluded, were “peremptory norms”, which must be foundational in the common law.
Abella, J, writing for the majority, stated:
There is no doubt then, that customary international law is also the law of Canada. In the words of Professor Rosalyn Higgins, former President of the International Court of Justice: “In short, there is not ‘international law’ and the common law. International law is part of that which comprises the common law on any given subject” ……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.
In other words, “Canadian courts, like courts all over the world, are supposed to treat public international law as law, not fact”.
There was another argument presented of “the act of state doctrine” which also failed as a defence. This exceeds the mandate of this summary.
The decision is an omen of disaster for the Canadian mining industry which does business in such foreign places. No liability has been established as yet, but the train is clearly coming down the tracks to its final station. There remain other defences for the trial on the merits, apart from the factual allegations of abuse.
It is noteworthy that the Canadian Mining Industry Association was an added party to the Supreme Court hearing, for good reason.
A Similar Case in Guatemala
A case that is similar, although not identical to this, is that of female workers in Guatemala alleging sexual and other abusive conduct by local security personnel at this location, all of which is made against a Canadian parent mining company. This case is also in progress.
International law is a complex and important issue in Canadian courts. This is a developing principle. Canadian companies in any industry should be mindful and aware of the conduct of the local operating entities they control in foreign jurisdictions. Shareholders and directors of these companies should not turn a blind eye to these allegations.
Get Advice and Know Your Rights
For advice on this issue and all employment law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.
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