Amnesty International was represented in this case by Paul Champ, Jennifer Klinck, François Larocque, and Penelope Simons
WHAT IS THIS CASE ABOUT?
In June 2014, an action was filed by seven Guatemalan men in British Columbia against Canadian company Tahoe Resources for injuries suffered when Tahoe’s security personnel allegedly opened fire on them at close range during a peaceful protest against the company’s mining activities. They accused Tahoe Resources of having expressly or implicitly authorized the use of excessive force against the injured, or of otherwise being negligent in failing to prevent the excessive use of force.
The British Columbia Supreme Court dismissed the action on the basis of the forum non conveniens doctrine, finding that the case would more appropriately be heard by a Guatemalan court. The plaintiffs appealed the judgment to the British Columbia Court of Appeal.
AMNESTY INTERNATIONAL’S INTERVENTION
Amnesty International intervened before the British Columbia Court of Appeal in the Tahoe Resources case. In our intervention, we submitted that in applying the doctrine of forum non conveniens, Canadian courts can and must consider as a contextual factor international law and norms that emphasize the importance of access to an effective remedy for transnational tort and human rights claims. Accordingly, Amnesty International argued that when jurisdiction is properly asserted, the British Columbia Court of Appeal should require corporate defendants to show that British Columbia is “clearly an inappropriate forum.” This approach is consistent with international practice and precedent and appropriately responds to the distinct features of this type of claim, including in particular the power imbalances inherent to cases involving marginalized plaintiffs and financially and political powerful transnational companies.
STATUS OF THE CASE
The British Columbia Court of Appeal heard this case on 1 November 2016. In its judgment from 26 January 2017, the Court of Appeal held that the lower court judge had made a number of errors in finding that Guatemalan courts were the more appropriate forum to hear the complaints, including failing to consider the limited discovery procedures available to the plaintiffs and the fact they would be unable to bring a civil suit in Guatemala due to the expiration of limitation periods.
Importantly, the court found that there was a “real risk that the appellants will not obtain justice in Guatemala given the context of the dispute and the evidence of endemic corruption in the Guatemalan judiciary.” The court rejected the lower court judge’s test for assessing the risk of unfairness in a foreign jurisdiction. Rather than determining whether the foreign court is “incapable of providing justice,” the Court of Appeal instead adopted a more stringent test of “whether there is a real risk of an unfair process in the foreign court.”
Reacting to the judgment, Amnesty International Canada’s Secretary General Alex Neve stated: “The Appeal Court’s decision means that these seven men are at long last one step closer to justice for the harms they have endured. However, leadership is urgently needed from the federal government to provide a pathway to justice and accountability for other individuals and communities around the world who experience human rights abuses due to the operations of Canadian extractive companies. It is time to appoint an Ombudsperson for human rights complaints related to this enormous Canadian industry.”
LEGAL RESOURCES
Submissions of the defendant Tahoe Resources to the British Columbia Supreme Court in the Tahoe case
Submissions of the plaintiffs on jurisdiction to the British Columbia Supreme Court in the Tahoe case
Reply submissions of the defendant Tahoe Resources to the British Columbia Supreme Court in the Tahoe case
British Columbia Supreme Court judgment in the Tahoe case
Factum of the appellants at the British Columbia Court of Appeal in the Tahoe case
Factum of the respondent Tahoe Resources to the British Columbia Court of Appeal in the Tahoe case
Reply factum of the appellants to the British Columbia Court of Appeal in the Tahoe case
Amnesty International notice of motion to intervene before the British Columbia Court of Appeal in the Tahoe case
Alex Neve’s affidavit in support of Amnesty International’s motion to intervene before the British Columbia Court of Appeal in the Tahoe case
Amnesty International’s memorandum of argument in support our motion to intervene before the British Columbia Court of Appeal in the Tahoe case
Amnesty International’s submissions to the British Columbia Court of Appeal in the Tahoe case
British Columbia Court of Appeal judgment in the Tahoe case
MEDIA
“‘My mother taught me how to fight.’ Guatemalan youth activists tell their stories” (10 February 2017)
“First hurdle cleared in long walk to justice for Guatemalan anti-mine activists” (3 February 2017)
“BC Court of Appeal Ruling: A Breakthrough for Corporate Accountability for Human Rights” (31 January 2017)
“Rights at Risk in Guatemala: One year on, concerns about mining and human rights remain” (30 September 2015)
“Tahoe AGM: will investors reject ‘business as usual’?” (8 May 2015)
“Wiretap transcripts raise troubling questions about Tahoe Resources’ militarized security detail” (7 April 2015)
“Public Statement on Tahoe Resources’ Escobal Project” (8 May 2013)
