Amnesty International was represented in this case by Penelope Simons and Paul Champ.
WHAT IS THIS CASE ABOUT?
This case is brought against Canadian mining company HudBay Minerals and its subsidiaries by Maya-Q’eqchi’ villagers from eastern Guatemala alleging gross human rights abuses by the company in Guatemala in 2007 and 2009. The Maya-Q’eqchi’ opposed the mining project, and claimed they were not consulted by the Guatemalan government in the transfer of land to private interests. The plaintiffs claim that security personnel employed by HudBay’s local subsidiary shot and killed school teacher and anti-mining activist Adolfo Ich Chamán, shot and paralyzed youth Gernam Chub Choc, and gang-raped 11 Maya-Q’eqchi’ women. Because HudBay is a Canadian company, the plaintiffs seek a remedy for the human rights violations in Canadian courts.
HudBay brought motions to dismiss the claims, on the basis that a parent company can never owe a duty of care to those who may be murdered, harmed, or raped by security personnel employed by the company’s subsidiary in a foreign country. Originally, the defendants had also claimed that in accordance with the forum non conveniens principle these lawsuits should not be heard in Canada because the alleged violations occurred in Guatemala; but the company unexpectedly dropped this argument shortly before a scheduled hearing of the company’s motion.
AMNESTY INTERNATIONAL’S INTERVENTION
Amnesty International intervened in this case before the Ontario Superior Court of Justice to argue that international law supports the view that a duty of care may exist in circumstances where a parent company’s subsidiary is alleged to be involved in gross human rights abuses.
International law set out in the UN Guiding Principles on Business and Human Rights, as well as other important international human rights instruments endorsed by Canada, call for companies working in conflict-affected or high risk areas to conduct a risk assessment of the human rights impacts of security forces, screen and train security personnel, and establish clear parameters on the use of force by security forces. We argued that the court should draw on these international norms and standards of conduct, to determine that Canadian corporations owe a duty of care to individuals at risk of harm from security forces engaged to protect the corporation’s assets and installations. We noted that this is indeed the approach taken by many jurisdictions around the world, including the UK.
Finally, Amnesty International noted that when Canadian companies operate abroad, Canada’s own reputation is at stake. It is in the interests of Canadian society to ensure that victims of gross human rights abuses have an effective and meaningful avenue to seek justice and accountability, regardless of where Canadian companies operate or the business structure they adopt.
STATUS OF THE CASE
In a precedent-setting decision, the Ontario Superior Court of Justice dismissed HudBay’s motions, finding that the parent Canadian company owed a duty of care to the Maya-Q’eqchi’ villagers affected by the actions of the security personnel of its subsidiary companies. The judgment means that the plaintiffs will have the opportunity to present their evidence of gross human rights violations against HudBay and its subsidiaries in Canada.
The HudBay trial continues to be heard on its merits before the Ontario Superior Court of Justice and has been in the discovery stage for several years.
LEGAL RESOURCES
Amnesty International’s motion to intervene at the Ontario Superior Court of Justice in the HudBay case
Judgment of the Ontario Superior Court of Justice granting Amnesty International leave to intervene in the Hudbay case
Amnesty International’s submissions to the Ontario Superior Court of Justice in the HudBay case
Judgment of the Ontario Superior Court of Justice on the motion of the companies to strike the case
MEDIA
“Amnesty International Canada intervenor in important corporate accountability case – HudBay Minerals” (27 February 2013)
“Ground-breaking ruling paves the way for Indigenous Guatemalans to have their day in a Canadian court” (26 July 2013)
