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Araya v. Nevsun Resources Ltd., 2017 BCCA 401 (CanLII)

Date:
2017-11-21
File number:
CA44025
Other citations:
419 DLR (4th) 631 — 4 BCLR (6th) 91 — 12 CPC (8th) 225 — [2017] CarswellBC 3232 — [2017] BCJ No 2318 (QL)
Citation:
Araya v. Nevsun Resources Ltd., 2017 BCCA 401 (CanLII), <https://canlii.ca/t/hnspq>, retrieved on 2024-03-29

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Araya v. Nevsun Resources Ltd.,

 

2017 BCCA 401

                                                                                                                          Date: 20171121

Docket: CA44025

Between:

Gize Yebeyo Araya, Kesete Tekle Fshazion
and Mihretab Yemane Tekle

Respondents

(Plaintiffs)

And

Nevsun Resources Ltd.

Appellant

(Defendant)

And

EarthRights International

Intervenor

 

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Willcock

The Honourable Madam Justice Dickson

On appeal from:  An order of the Supreme Court of British Columbia,
dated October 6, 2016 (Araya v. Nevsun Resources Ltd.,
2016 BCSC 1856, Vancouver Docket S148932).

Counsel for the Appellant:

M. Andrews, Q.C.
A.I. Nathanson

A.D. Borrell
G.R. Cameron

A. Mitretodis

C. Senini

Counsel for the Respondents:

J. Fiorante, Q.C.

R. Mogerman

J.D. Winstanley

N. Baker

J. Yap

Counsel for the Intervenor
(making written submissions only):

A. Latimer

T. Morgenthau

Place and Date of Hearing:

Vancouver, British Columbia

September 2528, 2017

Place and Date of Judgment:

Vancouver, British Columbia

November 21, 2017

 

Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Mr. Justice Willcock

The Honourable Madam Justice Dickson

 

 

 

Summary:

Plaintiffs are Eritrean refugees who assert they were forced to work at a gold mine in that country owned (indirectly) by defendant “Nevsun” (as to 60%) and Eritrean state companies (as to 40%). Plaintiffs allege that international law norms against forced labour, slavery and torture were violated during the construction of the mine. They sought to sue Nevsun in a representative action on behalf of over 1000 people who had been conscripted into the military under the Eritrean National Service Program (“NSP”) and deployed at the mine. (Court below ultimately ruled that a common law representative action was not available.) Both private law torts and violations of “customary international law” (“CIL”) were pleaded; most were “derivative or ‘indirect” claims that Nevsun had been complicit in wrongs committed by Eritrea, its officials or agents.

Since Nevsun was a British Columbia corporation, B.C. courts had territorial jurisdiction, but Nevsun contended Eritrea would be the forum conveniens. It applied under the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”) to have action stayed in B.C. (the “Forum Application”). Plaintiffs submitted a “real risk” existed that Eritrean legal system would not provide a fair process. In addition to first-hand affidavit evidence submitted by both sides, chambers judge below admitted various “secondary” reports prepared by governmental and quasi-governmental organizations and NGOs concerning the Eritrean legal system and NSP. He admitted secondary reports for the “limited purpose” of providing context for the claims. He dismissed Nevsun’s Forum Application. Nevsun argued court erred in admitting the secondary reports, and in its analysis of the factors required to be considered under s. 11 of CJPTA.

Nevsun also applied to have action dismissed on the basis of the doctrine of act of state, which precludes a domestic court from adjudicating on the legality or validity of legislation of a foreign state or acts done by officials of a foreign state (the “Act of State Application”). The chambers judge dismissed this Application given uncertainty as to whether ‘act of state’ would or would not apply.

Finally, Nevsun applied to have the causes of action based on customary international law struck out on the basis that even though Canada is a party to the Convention Against Torture, there is no right in Canada to a civil remedy for acts of torture committed outside Canada. (Kazemi (2014 SCC).) Since chambers judge was not persuaded it was “plain and obvious” the CIL claims must fail, he dismissed the “Customary International Law Application”.

On Appeal:  Appeal dismissed. Chambers judge had not erred in dismissing the Forum Application. Although the practical and logistical difficulties of trying these claims in British Columbia would be considerable, Chambers judge did not err in finding a “real risk” of corruption and unfairness in the Eritrean legal system, nor in admitting secondary evidence for limited purposes he had. This evidence went to “social” as opposed to “adjudicative” facts and corroborated first-hand affidavit evidence. It was difficult to imagine how plaintiffs could prove their allegations concerning the Eritrean legal system without material of this kind. Criteria of reliability and necessity were met at this preliminary stage, and the materials had not been admitted for use at trial.

Following a discussion of the doctrine of act of state and of recent decision of the UKSC in Belhaj v. Straw, Court of Appeal concluded the doctrine was not applicable and that in any event, the “public policy limitation” to the doctrine applied in light of the grave nature of wrongs asserted in this case. The “Kirkpatrick” exception also applied. Accordingly, chambers judge did not err in dismissing the Act of State Application. He had erred, however, in applying the “plain and obvious” test to whether the act of state applied.

Nevsun also contended court below erred in declining to strike out causes of action based on CIL on the basis no such cause of action has ever been recognized in Canada. In the past, Canadian courts, including SCC in Kazemi, have declined to recognize private causes of action for breaches of peremptory international norms, or jus cogens. However, Kazemi and other Canadian cases had involved claims against foreign states. This case does not involve a claim against Eritrea; thus arguments based on international comity and equality are attenuated. Other jurisdictions have recognized private law claims based on violations of jus cogens. Recent developments in “transnational law” left open the possibility that an incremental step towards reflecting CIL norms in private law remedies might be appropriate in this instance. Chambers judge had not erred in concluding CIL claims were not “bound to fail”, or in dismissing CIL Application.


 

Table of Contents

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102

108

108

112

114

121

123

124

130

140

142

143

149

154

159

165

THE PLEADINGS

THE APPLICATIONS OF AUGUST 2015

The Evidence Application

The Forum Application

Comparative Convenience and Expense

Law to be Applied

Three Overlapping Factors

Fair and Efficient Working of the Canadian Legal System

Additional Factors

Act of State Application

Customary International Law Application

ON APPEAL

Nature of the Case

Error in Refusing to Decline Jurisdiction?

Admissibility of Secondary Reports

Connell Reports

Forum Conveniens Factors

Standard of Review

“Broad Assertions” of Corruption

Nature of the Case and the Difficulty of a Trial in British Columbia

Outdated Evidence?

The Act of State Doctrine and its Exceptions

The ‘Plain and Obvious’ Test

Evolution of Act of State

Belhaj (CA)

Belhaj (UKSC)

Lord Neuberger’s Analysis

Lord Sumption’s Analysis

Nevsun’s Argument

Plaintiffs’ Argument

Analysis

The Kirkpatrick Exception

170

174

177

198

The Commercial Exception

Customary International Law and Canada

DISPOSITION


 

Reasons for Judgment of the Honourable Madam Justice Newbury:

[1]           In 2014, in Belhaj v. Straw [2014] EWCA Civ 1394, aff’d [2017] UKSC 3, Lloyd Jones, L.J. observed:

… a fundamental change has occurred within public international law. The traditional view of public international law as a system of law merely regulating the conduct of states among themselves on the international plane has long been discarded. In its place has emerged a system which includes the regulation of human rights by international law, a system of which individuals are rightly considered to be subjects. A corresponding shift in international public policy has also taken place….These changes have been reflected in a growing willingness on the part of courts in this jurisdiction to address and investigate the conduct of foreign states and issues of public international law when appropriate. [At para. 115.]

The overarching question in this case is whether Canadian courts, which have thus far not grappled with the development of what is now called ‘transnational law’,[1] might also begin to participate in the change described; or whether we are to remain on the traditional path of judicial abstention from the adjudication of matters touching on the conduct of foreign states in their own territories – even where that conduct consists of violations of peremptory norms of international law, or jus cogens.

THE PLEADINGS

[2]           The facts of this case are unusual, and they raise legal issues that are, in counsel’s word, “exceptional”. The plaintiffs are refugees from Eritrea, a poor country that was formerly part of Ethiopia. Eritrea came into existence in 1993 as a result of a long liberation struggle led by its one political party, the People’s Front for Democracy and Justice (“PFDJ”). Eritrea continues to have border conflicts with its neighbour and is apparently on a continuous war footing. The defendant “Nevsun” is a publicly-held British Columbia corporation. The plaintiffs allege that Nevsun entered into a “commercial venture” with Eritrea for the development of a large mine in that country and that through a chain of subsidiary corporations, it continues to own a 60% interest therein. Located near Asmara, the Bisha mine produces gold, copper and zinc and constitutes an important source of revenue for the Eritrean economy.

[3]           The plaintiffs assert that Nevsun engaged the Eritrean military and corporations controlled by it and by the PFDJ to build the mine and related infrastructure. For this purpose, the military deployed or provided forced labour, conscripted under Eritrea’s National Service Program (“NSP”). The plaintiffs say they were among those forced to work at the mine in inhuman conditions and under the constant threat of physical punishment, torture and imprisonment, even after they had served their periods of conscription in the military. (Since then, the period for which people are conscripted into military service in Eritrea has reportedly been extended indefinitely by executive proclamation.) As originally framed, the action purported to be a representative one brought on behalf of all those (said to number over 1000) who between 2008 and 2012 allegedly suffered inhuman treatment at the mine while being forced to work against their wills.

[4]           In their Notice of Civil Claim (“NOCC”) filed in November 2014, the plaintiffs allege that Nevsun was complicit in the use of forced labour, slavery, torture, inhuman or degrading treatment, and crimes against humanity at the mine in the following respects:

(a)        Nevsun aided and abetted the use of forced labour, slavery, torture, cruel, inhuman or degrading treatment, and crimes against humanity at the Bisha mine; and/or

(b)        Nevsun ordered, solicited, or induced the use of forced labour, slavery, torture, cruel, inhuman or degrading treatment, and crimes against humanity at the Bisha mine; and/or

(c)        Nevsun, expressly or implicitly, approved of the use of forced labour, slavery, torture, cruel, inhuman or degrading treatment, and crimes against humanity at the Bisha mine; and/or

(d)        Nevsun acquiesced in the use of forced labour, slavery, torture, cruel, inhuman or degrading treatment, and crimes against humanity at the Bisha Mine; and/or

(e)        Nevsun failed to prevent or stop the use of forced labour, slavery, torture, cruel, inhuman or degrading treatment, and crimes against humanity at the Bisha mine; and/or

(f)         Nevsun knowingly and intentionally contributed to the commission of these acts by a group of persons acting with a common purpose in the development of the Bisha mine; and/or

(g)        Nevsun had effective authority and control over Segen and other subordinates at the Bisha mine and failed to properly exercise control over its subordinates at the Bisha mine, and further:

(i)         Nevsun either knew or consciously disregarded information which indicated that its subordinates at the Bisha mine were committing or about to commit acts in violation of the foregoing principles of customary international law and jus cogens;

(ii)        these acts were within the effective responsibility and control of Nevsun; and

(iii)      Nevsun failed to take all necessary and reasonable measures within its power to prevent or repress their commission.

[5]           By failing to prevent such activity, Nevsun is also said to have aided and abetted, directly and indirectly, the conduct of the corporations involved in building the mine, Segen Construction Co. (“Segen”) and Mereb Construction Co. (“Mereb”). They are controlled by the PFDJ and the military, respectively. The plaintiffs assert that Nevsun is liable for the conduct of its (indirect) subsidiary, Bisha Mine Share Company (“BMSC”), on the basis of (i) agency; (ii) that it was an “extension of the business enterprise of Nevsun”; and (iii) that the corporate ownership structure separating Nevsun from BMSC is “artificial and should be disregarded in the interests of justice.” It is said that Nevsun knew or ought to have known that violations of human rights were an inevitable consequence of “engaging with a rogue state such as Eritrea and its contracting arms Segen and Mereb.” In these circumstances including the fact that the plaintiffs have no effective legal remedy against those bodies in the absence of a “functioning system of justice” in Eritrea the plaintiffs also seek to have Nevsun held vicariously liable for the conduct of Segen, Mereb and the Eritrean military.

[6]           The plaintiffs advance two types of causes of action in the NOCC. First, they allege private law torts consisting of:

i)         conversion, battery, unlawful confinement and intentional infliction of mental distress through certain corporations controlled by Nevsun;

ii)         negligence in inter alia failing to adhere to any “standards of corporate social responsibility”;

iii)        unlawful conspiracy with other corporations and the Eritrean military to injure the plaintiffs; and

iv)        unjust enrichment.

[7]           Second, the plaintiffs allege breaches of peremptory principles of international law in the form of forced labour, slavery, torture, inhuman or degrading treatment, and crimes against humanity. Overall, they seek “damages at customary international law [“CIL”] as incorporated into the law [of] Canada”; damages under domestic British Columbia law, including aggravated and punitive damages; restitution; and related equitable relief, together with court order interest and costs.

[8]           The plaintiffs characterize Eritrea as a “rogue state” and “one of the most oppressive regimes in the world.” In the words of their NOCC:

10.      …. It has a well documented history of forced labour, arbitrary arrests and detention, extrajudicial killings, torture, inhuman prison conditions, infringements of freedoms of movement, expression and opinion, assembly, association and religious belief, sexual and gender-based violence, and violations of children’s rights.

11.      Eritrea is a dictatorial, one-party state which has never held elections or implemented a constitution. Eritrea has a single political party, the People’s Front for Democracy and Justice (“PFDJ”). All other political parties are banned.

12.      The rule of law does not exist in Eritrea. It has no constitution, functioning legislature or civil justice system, independent judiciary, elections, independent press, or nongovernmental organizations. Power is concentrated in the hands of President Isaias Afewerki.

.           .           .

15.      In 2002, the government of Eritrea extended the period of service for conscripts indefinitely and forced the conscripts to provide labour to various companies owned by senior military officials or the PFDJ including the Segen Construction Company, which is owned by the PFDJ, and the Mereb Construction Company, which is controlled by the military.

.           .           .

20.      Eritrea’s system of indefinite conscription enforced by torture, violence, arbitrary detention, retribution against family members and other cruel, inhuman and degrading treatment is a widespread and systematic attack directed against the civilian population of Eritrea. [Emphasis added.]

[9]           In its Response to Civil Claim, Nevsun denies almost all the allegations made by the plaintiffs — including that it or BMSC engaged the Eritrean military to build the mine or to supply labour in connection therewith. Nevsun pleads that the Eritrean military and its personnel “were [not] and are not subject to the control, direction or supervision of Nevsun or BMSC” and denies that the plaintiffs were subjected to forced labour or abused or mistreated at all.

[10]        Nevsun does acknowledge that BMSC owns and operates the Bisha property and that BMSC is a party to a series of agreements with Eritrea and its national mining corporation (“ENAMCO”) that “give rise to [BMSC’s] right, title and interest in the Bisha Mine.” However, Nevsun pleads that BMSC “required” that no forced labour be used to build the mine and that it had in place various policies intended to guard against abuses:

40.      BMSC also adopted plans, including a Construction, Environmental and Social Management Plan (“CESMP”), consistent with various social and environmental commitments it made in connection with the Bisha Mine project. The CESMP provided that BMSC and SENET would ensure that Eritrean National Service personnel on extended service would not be used by BMSC or its contractors. The CESMP further provided that SENET was responsible for promoting health and safety and worker camp regulations adhering to BMSC’s code of conduct and other policies prohibiting crimes and violence.

.           .           .

43.      Nevsun denies the allegations of forced labour, slavery, torture, cruel and degrading treatment and crimes against humanity set out in the Notice of Civil Claim. If such conduct occurred, which is denied, it did not occur at the Bisha Mine, and Nevsun and BMSC were not aware of it and did not aid or condone it, either expressly or impliedly, as alleged or at all.

[11]        Further, Nevsun pleads that the terms and conditions of the plaintiffs’ employment by Segen (which was engaged as a subcontractor by the main contractor for the construction of the mine), were set out in a collective agreement and that “any disputes were first required to be referred to mediation and, failing settlement, to the Eritrean Ministry of Labour and Human Welfare, with a right of appeal to the Eritrean High Court.” On this point, Nevsun relies on the “Weber doctrine”: see Weber v. Ontario Hydro 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929.

[12]        With respect to the plaintiffs’ assertions about Eritrea itself, Nevsun denies that it is a “rogue state” with no functioning legal system. In particular, the defendant pleads:

23.      The State of Eritrea obtained its formal independence from Ethiopia in 1993 and is a developing country. It is a member of the United Nations (UN) and, like many other UN member states including, for example, the People’s Republic of China, it is governed by a single political party. The State of Eritrea enjoys sovereign immunity consistent with principles of international law and the State Immunity Act, R.S.C. 1985, s. 18 (the “SIA”). Eritrea has ratified relevant international conventions including the International Labor Organisation (ILO) Convention Against Forced Labour (No. 29) and the ILO Convention concerning the Abolition of Forced Labour (No. 105).

24.      The State of Eritrea has a system of positive laws, including a Penal Code, Civil Code, Commercial Code, Civil Procedure Code, as well as a Labour Code, referred to as the Labour Proclamation No. 118/2001, which prohibits forced labour.

25.      The State of Eritrea also has a functioning court and justice system. This includes courts with specialised jurisdiction, a Labour Board and procedures recognising mediation and arbitration for the private settlement of disputes. The rule of law applies, and state actors including public officials are subject to Eritrean laws and the jurisdiction of the Eritrean courts.

(I note that Eritrea has also acceded to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1465 U.N.T.S. 85).)

[13]        Nevsun also takes issue with the notion that it is vicariously liable for the acts of BMSC, Segen, Mereb, or the Eritrean military, the latter of which is protected by the doctrine of state immunity. The defendant says it did not owe the plaintiffs a duty of care, nor did it conspire with others to breach any such duty; and that the several corporations in the corporate ladder between itself and BMSC are entitled to the protection of limited liability.

[14]        Most important for purposes of this appeal, Nevsun denies that the courts of this province have, or should take, jurisdiction to try the case at all. Although a British Columbia court has territorial jurisdiction by virtue of the fact that the company is “ordinarily resident” in the province (see ss. 3 and 7 of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (“CJPTA”), Nevsun submits that British Columbia is not the most appropriate forum for the determination of the plaintiffs’ claims and that the forum conveniens would be an Eritrean court or other tribunal. Eritrea is the locus of the wrongs asserted; it is where many of the potential witnesses reside; and under normal conditions, its law would likely be the ‘proper law’ of most if not all the causes of action pleaded.

[15]        As well, Nevsun submits that the Supreme Court of British Columbia lacks subject-matter competence over the plaintiffs’ claims effectively, that the doctrine of ‘act of state’ precludes British Columbia courts from adjudicating the legality of a foreign state’s conduct. The act of state doctrine is relied on as “both a jurisdictional bar to the plaintiffs’ claims and a substantive defence.” In the words of Nevsun’s Response:

17.      The Plaintiffs’ claims against Nevsun, in whole or in part, depend on establishing wrongful conduct by the State of Eritrea, its public officials and its military, all of which is alleged to have occurred within the sovereign territory of the State of Eritrea. Consistent with the equality of sovereign states and the principle of international comity, the legal validity of sovereign acts of foreign states occurring within their own territory is not justiciable and cannot be the subject of adjudication by this Court or by the municipal courts of any state other than the State of Eritrea. This is referred to as the “act of state doctrine”. Nevsun pleads and relies on the act of state doctrine as both a jurisdictional bar the Plaintiffs’ claims and a substantive defence. [Emphasis added.]

[16]         Finally, Nevsun pleads that CIL does not apply to create causes of action against it under the law of British Columbia:

13.      Customary international law, either on its own or as incorporated into the laws of Canada and of the Province of British Columbia, does not apply to corporations. Alternatively, the specific norms of customary international law on which the Plaintiffs rely, whether so incorporated or not, apply to states but not to corporations such as BMSC and Nevsun, which are incorporated under national laws.

14.      Further or in the alternative, customary international law as incorporated into the laws of Canada and the Province of British Columbia, either generally or in respect of the specific customary norms relied on by the Plaintiffs, does not create a private law cause of action and a right to recover damages.

15.      In particular, the law of British Columbia does not recognise a private law cause of action for damages for forced labour, slavery, torture, cruel and inhuman treatment or crimes against humanity, as those concepts are defined in customary international law. Nevsun denies that it engaged in or became liable for any such conduct, as alleged or at all.

16.      Further, or in the alternative, Nevsun denies that the prohibitions against forced labour and cruel and inhuman treatment are norms of customary international law or that, if they are such norms, which is denied, that they are jus cogens norms. [Emphasis added.]

THE APPLICATIONS OF AUGUST 2015

[17]        Jurisdiction being disputed, the plaintiffs’ case is still at the preliminary stage. The chambers judge in the court below, Mr. Justice Abrioux, was asked to rule on four separate interlocutory applications filed by Nevsun in August 2015. One of these was procedural: Nevsun sought an order denying this proceeding the status of a (common law) representative action. The judge granted this order, and no appeal is now taken therefrom.

[18]        It is from the judge’s rulings, all in the plaintiffs’ favour, on three substantive motions that the defendant appeals. These were:

                     the “Forum Application”, brought under R. 21-8(2) of the Supreme Court Civil Rules and s. 11 of the CJPTA, seeking a stay of the action on the basis that the courts of Eritrea are a more appropriate forum in which to hear the proceedings;

                     the “Act of State Application”, brought under R. 21-8(1)(a) and (b) or alternatively, R. 9-5, for an order staying or striking out the plaintiffs’ claims on the basis that the pleading disclosed no reasonable cause of action due to the operation of the act of state doctrine and the principle of state immunity, the latter of which is codified in the State Immunity Act, R.S.C. 1985, c. S-18 (“SIA”); and

                     the “CIL Application”, brought under R. 9-5, to strike out those portions of the plaintiffs’ claims that are based on customary international law as disclosing no reasonable cause of action or as unnecessary.

[19]        The appeal thus raises a number of difficult issues of transnational law. These include questions about the operation of forum conveniens, a principle obviously based on comity, in circumstances where the foreign court is alleged to be unlikely to provide even the basic elements of a fair trial; the doctrine of act of state and “limitations” or exceptions thereto; and the applicability of customary international law principles said have been adopted into the common law of Canada. Some of these issues have never been addressed directly by a Canadian court. Underlying all of them are difficulties concerning the proof of assertions such as those made by the plaintiffs about the nature of the Eritrean regime and the state of its legal system.

The Evidence Application

[20]        In addition to the four applications noted above, Nevsun also made an “Evidence Application” at some point in the case-management process, seeking an order striking portions of affidavit evidence filed and relied on by the plaintiffs in responding to the four (now three) substantive applications. I will not attempt to rehearse the chambers judge’s analysis of the Evidence Application here (see paras. 127–225.) It will, I hope, be sufficient to note that the plaintiffs tendered both first-hand and so-called “secondary” evidence. The first-hand material included:

(a)      Affidavits of each of the plaintiffs detailing his treatment at the mine, described at paras. 4247 of the reasons;

(b)      Affidavits of former Eritrean judges, most notably Messrs. Khiyar, Gebreselassie and Ghebremichael, whose evidence is described at paras. 8384 and was tendered “in part” as expert evidence;

(c)        Affidavit of Mr. Tesfalidet, a lawyer who was attached to the office of the Legal Advisor to the President of Eritrea, described at para. 93;

(d)      Affidavit of Mr. Yeibio, a former prosecutor and judge, described at para. 96; and

(e)      Two reports of Mr. Dan Connell, who has written several books on Eritrea, described at paras. 173185.

As far as I am aware, Nevsun did not seek to cross-examine any of the deponents on their affidavits.

[21]        The secondary material sought to be adduced by the plaintiffs concerning the Eritrean government generally, its legal system and the NSP, consisted of reports published by various governmental or quasi-governmental organizations such as the United Nations Commission of Inquiry (“COI”) on Human Rights in Eritrea, the European Asylum Support Office (“EASO”) and the U.S. State Department; and non-governmental organizations such as Amnesty International and Human Rights Watch. Most were adduced simply as exhibits to the affidavit of an assistant to counsel. Nevsun objected to the admissibility of these materials on the grounds that they contained “double hearsay”; much of their content was contradictory or inconsistent; and they were “anonymous” in that individual authors were not identified, much less qualified as experts, and thus could not be cross-examined. (At paras. 156–158.)

[22]        In considering these objections, the chambers judge prepared a table summarizing how Canadian courts have treated such reports in previous cases. All that could be drawn from his compilation, he said, was that there was “no clear answer” on the issue, although the context of the proceeding and the circumstances of each individual case obviously governed the analysis. (At para. 165.)

[23]        More helpful, the judge said, was the distinction between “adjudicative” and “social” facts that is often drawn in Charter cases, in which secondary reports have been accepted as evidence of larger societal phenomena that are not susceptible to proof by expert evidence in its usual form. The distinction was discussed in R. v. Spence 2005 SCC 71, a case about judicial notice of racism in the context of a jury challenge; and Mahjoub v. Canada (Minister of Citizenship and Immigration) 2006 FC 1503, an immigration case, at paras. 72–75. In Spence, Binnie J. speaking for the Court observed that “social facts” are difficult to prove and do not relate strictly to the adjudication of guilt or innocence. Rather, they are “used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a particular case.” (At para. 57.)

[24]        In Mahjoub, the Court on judicial review stated:

The delegate’s blanket rejection of information from agencies with worldwide reputations for credibility such as AI and HRW is puzzling, especially given the institutional reliance of Canadian courts and tribunals on these very sources. Indeed, the Minister of Citizenship and Immigration frequently relies on information from these organizations in creating country condition reports, which in turn are used by Immigration and Refugee tribunals, in recognition of their general reputation for credibility (France Houle, “Le fonctionnement du régime de preuve libre dans un système non-expert: le traitement symptomatique des preuves par la Section de la protection des réfugiés” (2004) 38 R.J.T. 263 at para. 71 and at n. 136).

.           .           .

Similarly, the Federal Court has recognized the reliability of both Amnesty International and Human Rights Watch. For instance, my colleague Justice Michael Kelen referred to a HRW report as “credible” (Buri v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1358, [2001] F.C.J. No. 1867 (Fed T.D.) at para. 22); another colleague, Justice François Lemieux, stated that an immigration officer erred in failing to consider a current AI report relating to country conditions, where the report was not among the documents she had considered and where the officer’s views were contrary to its findings (Kazi v. Canada (Minister of Citizenship and Immigration), 2002 FCT 178, [2002] F.C.J. No. 223 (Fed. T.D.) at paras. 28, 30).

In Thang v. Canada (Solicitor General), 2004 FC 457, [2004] F.C.J. No. 559 (Fed. T.D.) at para.8, Justice James O’Reilly seemingly recognized that the credibility of AI did not necessarily mandate that a decision-maker agree with the conclusions of its reports, but it did require her to state why she found the report unpersuasive. It remains open to this reviewing Court to assess whether the delegate’s treatment of evidence from such credible sources was done arbitrarily or by ignoring crucial evidence. [At paras. 72 and 745.]

(Counsel for Nevsun points out that the Immigration and Refugee Protection Act, S.C. 2001, c. 27 expressly allows the Immigration and Refugee Board to rely on evidence that would not be admissible in ordinary courts.)

[25]        In light of these authorities, Abrioux J. ruled in the case at bar that the secondary reports were admissible, “at a minimum to ‘connect the dots’” of otherwise asserted facts, citing Harrison v. XL Foods Inc. 2014 ABQB 720. He continued:

A similar conclusion was recently reached in Ewert v. Canada (Attorney General) where Blok J. on a class action certification proceeding stated at para. 39:

 For these reasons I conclude that the OCI Report [prepared by a commission of investigation] is not admissible for proof of the facts stated in it, although it is helpful, in the sense described in Harrison, in placing otherwise asserted facts in context. It is helpful as well in understanding why a class action may be necessary to encourage a modification in CSC behaviour. [At para. 172; emphasis added.]

[26]        Nevsun was also permitted to adduce evidence, which included:

(i)         Affidavit of Mr. Rogers, the general manager of BMSC between 2005 and 2011, described at para. 56;

(ii)        Affidavits of Mr. Romaine, Nevsun’s Vice-President of Corporate Social Responsibility;

(iii)      Portions of a transcript of testimony given by two Nevsun officials before the House of Commons in June 2014 concerning Eritrea, as described at paras. 5766;

(iv)      Affidavits of Mr. Arthur, the chief of mine surveying for BMSC at the Bisha mine, and of Mr. Williams, BMSC’s operations manager;

(v)        Affidavit of Semaynesh Efrem, chair of the union that represents Segen workers;

(vi)      Affidavit of Takeste Baire, general secretary of the National Confederation of Eritrean Workers;

(vii)      Affidavits of various labourers and management personnel (including Mr. Weldemariam, an engineer) employed by Segen; and

(viii)     Affidavit of Mr. Yohanne Sium, a Washington attorney who has travelled to Eritrea in recent years and held discussions with law students, professors and judges. His evidence is described at para. 99.

[27]        Most importantly, Nevsun filed expert opinion evidence of Prof. Andemariam, an assistant professor at the University of Asmara and previously a judge in Eritrea. He opined that the parties would receive a fair triaI in Eritrea. I will return to Prof. Andemariam’s evidence later in these reasons.

[28]        Ultimately, the chambers judge reached the following conclusions on the Evidence Application as a whole:

(a)        what is clearly unattributed hearsay in certain of the affidavits is inadmissible;

(b)        the secondary reports are admitted into evidence for the limited purpose of providing a social, historical and contextual framework to the first hand allegations or properly attributed hearsay in certain of the affidavits filed on behalf of the plaintiffs, and the opinion evidence of the former judges and lawyers and Mr. Ghebremichael relating to whether there is a real risk the plaintiffs will not receive a fair trial in Eritrea;

(c)        the Connell reports that are in part based on statements contained in certain of the secondary reports, are admitted into evidence for the limited purpose of providing social and historical facts in which to place the first hand evidence of the plaintiffs’ affidavits in context;

(d)        the opinion evidence contained in the affidavits of the former judges and lawyers is admitted into evidence;

(e)        the IRB and Subcommittee transcripts are not admitted into evidence with the exception that the testimony before the Subcommittee of Mr. Lipsett, Mr. Romaine and Mr. Davis to which I have referred is admitted;

(f)         the allegations of bias against the translator are dismissed; and

(g)        the Court will not consider exhibits in a foreign language that have not been translated into English. [At para. 138; emphasis added.]

He then proceeded to address the three substantive applications before him in turn, beginning with the Forum Application at para. 226.

The Forum Application

[29]        As noted, this application was brought pursuant to R. 21-8(1)(a) and (b) or alternatively, R. 9-5. Rule 9-5 deals generally with applications to strike out pleadings, on the ground inter alia they do not disclose a reasonable cause of action. The Rule of course requires the Court to decide if it is “plain and obvious” the cause will not succeed, or if it is ‘bound to fail’.

[30]        Rule 21-8(a) and (b) relate specifically to jurisdiction:

Disputed jurisdiction

(1)        A party who has been served with an originating pleading or petition in a proceeding, whether that service was effected in or outside British Columbia, may, after filing a jurisdictional response in Form 108,

(a)  apply to strike out the notice of civil claim, counterclaim, third party notice or petition or to dismiss or stay the proceeding on the ground that the notice of civil claim, counterclaim, third party notice or petition does not allege facts that, if true, would establish that the court has jurisdiction over that party in respect of the claim made against that party in the proceeding,

(b)  apply to dismiss or stay the proceeding on the ground that the court does not have jurisdiction over that party in respect of the claim made against that party in the proceeding, …

Order declining jurisdiction may be sought

(2)        Whether or not a party referred to in subrule (1) applies or makes an allegation under that subrule, the party may apply to court for a stay of the proceeding on the ground that the court ought to decline to exercise jurisdiction over that party in respect of the claim made against that party in the proceeding.

[31]        As a second alternative, Nevsun’s Forum Application invoked the CJPTA, which provides in s. 3 that a British Columbia court has territorial competence over a person (such as Nevsun) who is ordinarily resident in the province; and in s. 11 that:

Discretion as to the exercise of territorial competence

11 (1)   After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2)        A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including

(a)        the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,

(b)        the law to be applied to issues in the proceeding,

(c)        the desirability of avoiding multiplicity of legal proceedings,

(d)        the desirability of avoiding conflicting decisions in different courts,

(e)        the enforcement of an eventual judgment, and

(f)         the fair and efficient working of the Canadian legal system as a whole. [Emphasis added.]

[32]        The judge began his analysis of this application by quoting a long passage from the trial court’s decision in Garcia v. Tahoe Resources Inc. 2015 BCSC 2045 (rev’d 2017 BCCA 39, lve to app. dism’d [2017] S.C.C.A. No. 94.) It in turn quoted at length from the seminal cases of Breeden v. Black 2012 SCC 19 and Club Resorts Ltd. v. Van Breda 2012 SCC 17. In the latter case, Lebel J. summarized the court’s task in determining whether territorial jurisdiction (in British Columbia, confirmed by s. 3 of the CJPTA) should be displaced by another jurisdiction:

Regarding the burden imposed on a party asking for a stay on the basis of forum non conveniens, the courts have held that the party must show that the alternative forum is clearly more appropriate. The expression “clearly more appropriate” is well established. It was used in Spiliada and Amchem. On the other hand, it has not always been used consistently and does not appear in the CJPTA or any of the statutes based on the CJPTA, which simply require that the party moving for a stay establish that there is a “more appropriate forum” elsewhere. Nor is this expression found in art. 3135 of the Civil Code of Québec, which refers instead to the exceptional nature of the power conferred on a Quebec authority to decline jurisdiction: “... it may exceptionally and on an application by a party, decline jurisdiction ...”.

The use of the words “clearly” and “exceptionally” should be interpreted as an acknowledgment that the normal state of affairs is that jurisdiction should be exercised once it is properly assumed. The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules. The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin. A court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation. But the court must be mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules. Forum non conveniens may play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute. [At paras. 108–109; emphasis added.]

[33]        It will be recalled that the Supreme Court in Garcia proceeded on the basis later overruled on appeal that the ‘risk’ of corruption and injustice in a foreign court should be addressed not as part of the s. 11 factors, but at a secondary stage in which the onus is on the plaintiffs. In the case at bar, however, the judge rejected this approach as running contrary to the mandatory language in s. 11, which prescribes factors that the court “must consider”: see Teck Cominco Metals Ltd. v. Lloyd’s Underwriters 2009 SCC 11 at paras. 21–22. He thus proposed to consider this factor as part of the s.11 analysis. He also proposed to take a “broad approach” to the term “convenience” (presumably as it appears in s. 11(2)(a)), given that a real risk of an unfair trial was “likely not convenient” for the plaintiffs.”[2] (At para. 243.)

Comparative Convenience and Expense

[34]        With respect to the first factor – the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the Supreme Court of British Columbia or in any alternative forum – Nevsun argued that a trial in this province would be completely impractical:

(a)        there may well be hundreds of witnesses and many thousands of documents depending on how the case proceeds. The witnesses include employees of BMSC, Segen and SENET, including those employed by BMSC and SENET, who supervised and worked alongside the Segen employees, the vast majority of whom were Eritreans. They also include Segen management and Segen supervisors at the Bisha Mine. Some of these are identified in the affidavits delivered by the plaintiffs and their witnesses. Others are mentioned in the minutes of weekly progress meetings. Segen witnesses also include:

i.         those employees who were housed at the Bisha Mine camp but who were exempt, released or demobilized from NSP;

ii.         those NSP members who lived in the same camp but worked on the public road project described by Messrs. Weldemarian and Rogers;

(b)        witnesses may also include union officials (both from the Segen Base Union and the NCEW); officers and members of the Eritrean military; Mereb management, supervisors and employees; members of local communities like Mogoraib, where the Segen employees socialised during their time off; and Eritrean government officials. Those who entered into the unlawful conspiracy alleged by the plaintiffs may well be important witnesses, as will the Segen managers who made the alleged agreement in mid-2009 to bring in workers from Mereb and the mechanized branch of the armed forces designated as “74”, as described by Mr. Alemayo;

(c)        as Nevsun notes, the documentary evidence gives some indication of the order of magnitude of the number of witnesses: there were over 1,700 persons on site at the Bisha Mine in the month of August 2010 alone. BMSC had 934 employees in 2011 and 1,085 in 2012;

(d)        the named plaintiffs suggest that if the class succeeds at trial, they expect the class members to be given “the opportunity to participate because their involvement may be necessary at that stage to prove their damages”. This raises the prospect of individual inquiries to prove damages. This would in turn require witnesses, including family members, employers, health care professionals, and economists or other experts, in respect of each putative class member’s claim for damages. Many of those witnesses, too, would be found in Eritrea, where the class members resided at the relevant times;

(e)        most of the Eritrean witnesses will speak Tigrinya. The BMSC, SENET and Segen employees from the communities surrounding the Bisha Mine speak Tigre. The named plaintiffs themselves do not speak or read English. Obtaining and translating evidence will pose considerable challenges and will lengthen the trial;

(f)         most of the relevant documents, with the exception of Nevsun’s own documents, are held in Eritrea or South Africa. These include documents held by the Eritrean government and military;

(g)        communications between the two countries, including telephone and internet is unreliable. Videoconferencing or communicating via Skype or other internet video communications is subject to similar difficulties. Travel time from Vancouver can range from 24 to 36 hours with the cost of economy airfare from Vancouver generally between $3,000-$4,000;

(h)        attempting to take evidence on commission in Eritrea from so many witnesses would be extremely difficult and would also deprive the Court of hearing this important evidence firsthand; and

(i)         Eritrean nationals are required to obtain entry visas before entering Canada. Similarly, Canadian or other nationals must obtain entry visas to travel to Eritrea. Further authorizations are required to travel within Eritrea, including to the Bisha Mine. [At para. 245.]

There was also the fact, of course, that the events complained of by the plaintiffs all occurred in Eritrea. (At para. 248.)

[35]        In response, the plaintiffs cited the following factors that militated against Eritrea as the forum conveniens:

(a)        the plaintiffs may be considered to be traitors in Eritrea, and practically precluded from returning to that country. In any event they will not do so. There is a real risk that witnesses will not come forward to testify out of fear and that judges would be fearful to rule in the case. The former judges have given clear accounts of witnesses being intimidated, arrested and in some cases beaten as a result of their testimony in court;

(b)        the evidence of Prof. Andemariam is that the military refuses to cooperate in the judicial process and will not make its personnel available to testify;

(c)        witnesses and counsel in Eritrea may be subject to internal travel restrictions;

(d)        it is for Nevsun to satisfy the court that there is a system in place in Eritrea whereby proper documentary disclosure could occur and also to demonstrate how the evidence would be made available in a court proceeding in that country. It has failed to do so;

(e)        Nevsun’s own expert, Prof. Andemariam, has recently commented on “the problems and inconsistencies in the admission, analysis and weighing of evidence” in Eritrean courts in the absence of comprehensive evidence legislation. In particular, he notes that the law of evidence serves to secure fairness in trials. The Eritrean legal system exists in a legislative vacuum regarding comprehensive evidence law. This has resulted in Eritrean courts being unable to confidently answer questions of evidence and, consequently, discrepancies in rulings and judgments in similar cases;

(f)         there are additional difficulties raised by Prof. Andemariam including the fact there is no legal framework for the admission of foreign documents or testimony into evidence. It appears the practice is to require authentication of evidence by Eritrean embassies or consular offices. [At para. 247; emphasis added.]

[36]        With respect to onus of proof on this point, the judge noted that according to the English authorities, it would have been for the plaintiffs to establish “a real risk that justice will not be obtained in the foreign court by reason of incompetence or lack of independence or corruption”: see the cases cited at para. 253. However, he continued, the Canadian approach focusses not on whether the Canadian legal system is fairer and more efficient than the foreign forum, but whether the foreign legal system is capable of providing justice to the parties (Citing Garcia (BCSC) at para. 64.) He concluded that although the onus was on Nevsun to satisfy the Court that the comparative convenience and expense for the parties favoured Eritrea, the plaintiffs were obliged to provide “sufficient” evidence for the Court to conclude that there was a “real risk” they would not receive a fair trial in that forum. (At para. 256.)

[37]        Abrioux J. found that there was sufficient cogent evidence (set out in Part III of his reasons) from which a “real risk” could be inferred in this instance. He distinguished Garcia, Bil’in (Village Council) v. Green Park International Inc. 2009 QCCS 4151, aff’d 2010 QCCA 1455, Ferrexpo AG v. Gilson Investments Ltd. [2012] EWHC 721 (Comm), and Mengiste v. Endowment Fund for the Rehabilitation of Tigray [2013] EWHC 599 (Ch.) on their facts, and then referred to the expert evidence concerning the Eritrean justice system.

[38]        Most important to the plaintiffs’ case was the evidence of Mr. Ghebremichael, an Eritrean judge until he was expelled from the judiciary after he was imprisoned in 2007. He deposed that the judicial system in Eritrea is “not set up to ensure judicial independence from the government. In fact, the opposite is true.” He continued:

The administration of the court system is not free from government or political interference. Former military personnel (known generally as ex-fighters) who fought in the war of independence against Ethiopia have considerable power and influence in Eritrean society. The presidents or coordinators of regional courts are usually ex-fighters or party loyalists. They often interfere in the administration of justice by handling files without the knowledge of judges, requesting changes of venue and through express and/or implicit intimidation and threat of demotion.

In 2002, the government closed the only law school, at the University of Asmara. This was a well respected institution which produced a high quality of legal education. Many in the legal profession viewed the closure of the law school to be a deliberate move by the government to undermine the role of lawyers in Eritrean society.

In 2011, a new law program was opened at the Adi-Keih College of Arts. My understanding is that the law program is a department within the college and that all graduates from this program are conscripts who are assigned to the Ministry of Justice to work as clerks, prosecutors or judges.

To the best of my knowledge, the Ministry of Justice has not issued a licence for the private practice of law since approximately 1997, particularly for graduates of Law School of University of Asmara. Because of this and the fact that many judges and lawyers have fled the country, there are very few licensed lawyers remaining in private practice in the entire country. So far as I am aware, no more than a few of my law school classmates remain in the country. [At paras. 2932; emphasis added.]

He described the position of judges:

As judges, we did not enjoy any form of tenure. We were subject to summary dismissal or reassignment by the Ministry of Justice. In one prominent case, the country’s Chief Justice was dismissed in 2001 after issuing a statement about the sustained campaign by the government against the judiciary. The same Minister of Justice who dismissed the Chief Justice holds office today. In my own case, I was summarily expelled from the judiciary.

.           .           .

The executive branch of government can and does interfere in the judicial process. [At paras. 35 and 38.]

and the legal system:

Although Dutch legal scholars drafted new codes for Eritrea in 2002 (in English), these codes were never made law and have not been implemented. In May 2015, the government declared that it has enacted new codes but to the best of my knowledge, these codes have not been put into effect. They are not available to the public. [At para. 58.]

[39]        Dr. Ghebremichael described the “Special Court” thus:

The Special Court has exclusive jurisdiction on criminal matters relating to corruption, theft, breach of trust and fraud. In reality, this is not a court in any proper sense of the term.

In 1996, the Government created the Special Court purportedly to tackle corruption. The Proclamation that created the court stipulated that:

(a)        defendants are not permitted any legal representation;

(b)        trials would be held in private;

(c)        no appeal is permitted;

(d)        the court is empowered to use any method it sees fit to pursue a case; and

(e)        the Special Court is not bound by the principle of res judicata.

The Special Court does not provide due process of law as required in the Transitional Criminal Procedure Code.

The Special Court has created chaos in the judicial system by reversing decisions of the ordinary courts, including decisions in civil cases.

The Special Court established its own Execution Office to enforce its decisions. It has also been given wider power to auction off property and dissolve companies.

After a decade of injustice carried out by the Special Court, the Government created another “court” within the Special Court and called it Nay Fluy Fluy (“Special of the Special”) to review cases decided by the Special Court. This “Nay Fluy Fluy” Division of the Special Court is a kind of appeal court. However, not all parties involved have the right to go to this division. Its existence and the way it operates is obscure. Some decisions of the Special Court have been quashed and reversed by this division.

Judges in the Special Court are members of the Ministry of Defense and some are ranking military officials even though it is not a martial court.

[At paras. 7379.]

[40]        Finally, Mr. Ghebremichael also stated this about the existence of “extra-judicial remedies”:

In Eritrea, there are also a number of extra-judicial “remedies” which can be pursued in order to interfere with, block or overturn a result obtained in the court system. These are:

(a)        petitioning the Office of the President to directly interfere in , block or overturn a court proceeding or decision.

(b)        starting a new case under a different name in the Special Court. This can easily be done by claiming that the case involves some issue of fraud or forgery. As explained above, the Special Court is not a court in any proper sense of the word. It does not permit lawyers or appeals. It does not respect the principle of res judicata and it is free to obtain evidence in any manner it sees fit.

(c)        in a military zone, a litigant could simply ask a high ranking military official to resolve the matter. There are several military zones in the country. In these zones, military officials exercise their own authority to resolve disputes, often by jailing one of the litigants.

(d)        appealing to the National Security office for assistance. The National Security office will intervene in a court proceeding on the pretext that a matter of national security is involved. In practical terms, it can order that the proceeding be stopped or adjourned. In some cases, it may impose an outcome.

In addition, the Minister of Justice directly interferes with many cases. Recently, the Office of Citizens Militia has also begun handling cases.
[At paras. 80–81.]

[41]        As mentioned earlier, Nevsun’s most important expert was Prof. Andemariam. He began his responses to counsel’s questions by noting that the Eritrean Constitution was declared “in effect ‘dead’” in 2015 and that “Transitional Codes” of law have been published, based on Ethiopian Code Proclamations. An Evidence Code is expected to be published in due course. He described the court hierarchy and various specialized tribunals, including a Labour Relations Board. With certain exceptions, he observed, court proceedings are public; and the courts are “congested with cases.” Since Eritrea is not party to any treaty regarding the recognition or enforcement of foreign judgments, there is at present “no execution of foreign judgments and arbitral awards … in Eritrea.”

[42]        With reference to this case in particular, Prof. Andemariam opined that Eritrean courts would assume “territorial” jurisdiction because the events leading to the making of the claims occurred there, and an Eritrean court would likely associate Nevsun with its (indirect) share in the Bisha mine and consider it a company doing business in Eritrea. The case would be heard by the High Court; Prof. Andemariam estimates it would take 1218 months.

[43]        With respect to the possibility that foreign law (to Eritrea) might apply, Prof. Andemariam observed:

In practice, the general agreement among scholars and the courts of Eritrea is that if foreign law is applicable to a case before the Eritrean courts, the courts will dismiss the case. If, however, an Eritrean court is, theoretically, convinced that it will have to apply a foreign law, such law will be proved by asking the parties to authenticate such law before an Eritrean embassy or consular office in (responsible for) that country. The court may also take judicial notice of such law.

[44]        When asked whether Eritrean judges enjoy independence from “executive and political interference, he answered in part:

The issue of executive or political interference in the activities of the Eritrean judiciary is often discussed in light of the dominance of Eritrean political sphere by the executive, security and military apparatus especially since the early 2000s. I am aware of the recurrently cited events of the dissension, in 2001, at the highest political offices in Eritrea and the subsequent arrest of top government and military officials, the non-convocation since then of the Eritrean National Assembly, the closing of private press, the suspension of the implementation of the 1997 constitution, the indefinite extension of the active national service program and the legal implications of these developments.

In spite of these developments, however, I also know that Eritrean courts at all levels have continued to decide tens of thousands of civil, commercial and criminal cases every year which cases have been, and continue to be, executed with no discernable executive or political interference.

However, there are few instances where the executive interferes with or does not respect the activities or decisions of the Eritrean courts. I will mention the three noticeable instances.

1.            The first is the practice of the Special Theft, Corruption and Embezzlement Court answerable to the executive branch overturning decisions of the other courts. This Special Court often broadly interprets its mandate, entertains some cases of predominantly civil nature (for example, civil cases wherein forgery of documents has been alleged) decided by the other courts and hears them de novo.

2.            Then there is the case of reluctance, or often refusal, of some sections of the Eritrean Defense Forces to make their members available to the courts (as defendants, witnesses etc.) by stating that said members are in military duty.)

[45]        He added that most judges are subject to restrictions (for example, travel restrictions or inability to quit their jobs) similar to those applicable to other government employees. He was aware of cases in which judges have decided cases against government organizations or officials. He stated that he was not aware of any plaintiffs or prosecutors having faced retaliation for pursuing such cases. As well, there had been few instances of judicial corruption, and he could recall only one instance in which a judge was dismissed after taking a bribe. In addition, the first chief justice of Eritrea was removed from office in 2001 after giving a paper at an academic conference in which he strongly criticized the executive for interfering with the judiciary, either directly or through the Special Court.

[46]        The chambers judge assessed the respective qualifications of the two primary experts and their evidence thus:

Mr. Biniam Ghebremichael was a judge in Eritrea until he was expelled from the judiciary in 2007. This occurred after he was imprisoned for refusing to accept relocation to a remote area of the country for what he considered to be retribution for objecting to military interference in a case he was seized of. He describes in detail his experiences while in prison.

He remained in Eritrea as a legal officer at Eritrean Airways until he fled in late 2014. He is now considered a traitor since he has been absent for more than six months. While his accounts as a judge are limited to the time frame up to 2007, his evidence regarding the justice system, the role of the courts which have special jurisdiction, including the Special Court with its arbitrary powers, and the creation of the “Special of the Special” Court is apparently based on his knowledge until the time of his departure.

.           .           .

I would add at this stage that Prof. Andemariam’s curriculum vitae is to the effect that since 2007 he has been:

a member of the team of advisors to the Minister of Justice of Eritrea. The team constantly meets with the Minister to advise her on legal matters pertaining to the functions of the Ministry, legal advices to the government as well as law making and other matters related to her mandate.

From the former judge Kifleyonhanes Teweldebrhan Yeibio’s affidavit, this is the same Minister of Justice who was in office during the time frame identified in the plaintiffs’ and the former judges’ and lawyers’ evidence.

There are some additional weaknesses in Prof. Andemariam’s reports which include that:

(a)        he appears to be in a position to provide concrete examples to this Court as to the manner in which the administration of justice and the independence of the judiciary has improved over the years, but has not done so;

(b)        he could also have provided examples of situations where complex civil trials, involving dozens of witnesses and hundreds if not thousands of documents, have taken place in Eritrea, but has not done so;

(c)       he refers in his report to the availability of representative proceedings but provides no examples of any such cases in fact having occurred and how the Eritrean justice system handled them;

(d)        he says that there is no prohibition against contingency fees, but provides no examples of a practice of this occurring, particularly in a case such as this;

(e)        while he acknowledges proceedings have taken place against the government and its ruling party, nothing suggests he is aware of any proceedings in which claims have proceeded involving allegations of serious governmental misconduct or how the government would react if the plaintiffs’ claims proceeded in Eritrea; and

(f)         Mr. Biniam Ghebremichael’s evidence is that the Special Court, whose proceedings are held in private and where no representation is permitted, “has created chaos in the judicial system by reversing decisions of the ordinary courts…” While Prof. Andemariam is of the opinion that the parties would receive a fair trial in the High Court, he does not comment on a fair trial within the context of the Special Court or the “Special of Special” court.

In addition, although this is a preliminary application, I have significant difficulty in placing much weight on Prof. Andemariam’s evidence regarding a fair trial for the plaintiffs in Eritrea. He is apparently providing “constant” advice to the government. Although the State of Eritrea is not a party in this proceeding, it is clear from the evidence that the State’s role, which includes the military, will be a most important factor in the plaintiffs’ ability to prove their case and/or Nevsun to establish its defence. [At paras. 274–80; emphasis added.]

[47]        The judge also found that the plaintiffs would feel “real consequences” if they attempted to return to Eritrea a conclusion generally supported by the secondary reports. (See generally paras. 156–185.) In his analysis:

With respect, it would defy common sense for this Court to accept that the plaintiffs, as a pre-condition to returning to Eritrea, would have to:

(a)        pay a tax or fine as punishment for having left the country illegally;

(b)        render a written apology for their conduct; and

(c)        possibly attend a six week course designed to enforce their patriotic feelings

and not find that there is a real risk that the plaintiffs would not receive a fair trial in Eritrea. This is particularly the case if they then chose to commence legal proceedings in which they make the most unpatriotic allegations against the State and its military, and call into question the actions of a commercial enterprise which is the primary economic generator in one of the poorest countries in the world. [At para. 286.]

These and other factors militated against Eritrea as the appropriate forum.

[48]        On the other side of the scale, Abrioux J. noted that the Supreme Court of British Columbia has well-established rules of court that include comprehensive case management procedures; and has experience with long and complex trials; and there exists a “robust and well-established” body of evidentiary law. (At para. 290.) He concluded that Nevsun had failed to establish that comparative convenience and expense favoured Eritrea as the appropriate forum.

The Law to be Applied to the Plaintiffs’ Claims

[49]        On this point, Nevsun argued that the ‘proper law’ to be applied to the plaintiffs’ claims would be that of Eritrea as the lex loci delicti and that the common law strongly prefers to have disputes determined in the forum whose substantive law is being applied. Nevsun cited the seminal Canadian case of Tolofson v. Jensen 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, in which both La Forest J. for the majority and Major J. concurring, agreed that in general, the lex loci delicti should govern in tort cases involving more than one jurisdiction. However, La Forest J. for the majority added:

… because a rigid rule on the international level could give rise to injustice, in certain circumstances, I am not averse to retaining a discretion in the court to apply our own law to deal with such circumstances. I can, however, imagine few cases where this would be necessary. [At 1054; emphasis added.]

As an example of a case in which such an exception had been made, the plaintiffs referred to Oppenheimer v. Cattermole [1976] AC 249, in which the House of Lords declined to apply a German law the effect of which was to strip Germans of Jewish descent of their German citizenship and property.

[50]        The plaintiffs also argued that it was not clear how Eritrean law was to be applied and that even Prof. Andemariam had noted “the lack of a substantive body of law of evidence” in Eritrean law.

[51]        The chambers judge acknowledged that “a number of issues” could not be determined at this stage, including whether the procedural code that had been adopted by the Eritrean legislature would apply, given the dissolution of the National Assembly. (At present, it appears that laws in Eritrea are issued, amended and repealed by government decree or executive pronouncement.) There was also the question of whether the Special Court, or simply the office of President, could make the ultimate decision in the case, “with no discernable law” applying. The judge found that choice of law was “equivocal” in the s. 11 analysis.

Three Overlapping Factors

[52]        Abrioux J. then turned to consider the third, fourth and fifth factors – the desirability of avoiding multiplicity of proceedings; the desirability of avoiding conflicting decisions in different courts; and the enforcement of an eventual judgment. In his view, these three (overlapping) factors were equivocal in the forum conveniens analysis. Whether the substantive proceeding occurred in British Columbia or Eritrea, there were serious allegations as to the integrity of the Eritrean judicial system; Nevsun’s principal asset is the Bisha mine; and there would undoubtedly be various proceedings in any event concerning the enforcement of any judgment, no matter where the proceeding was heard.

The Fair and Efficient Working of the Canadian Legal System as a Whole

[53]        On this point, Nevsun relied heavily on an Ontario case, Airia Brands v. Air Canada 2015 ONSC 5332, a class action in which the defendants were accused of conspiring in Canada and elsewhere to fix the prices of air freight shipping services. The Court concluded that it did not have jurisdiction simpliciter over absent foreign plaintiffs whose only link to Canada was that they had purchased shipping services from somewhere outside of Canada into Canada. (At para. 146.) Thus, permitting a global class action on behalf of absent foreign claimants was found not to satisfy the principles of order and fairness. Even if that were not the case, moreover, the Court would have stayed the action on the basis of forum non conveniens.

[54]        The chambers judge in the case at bar found Airia to be distinguishable on several bases, described at paras. 320–322. He was of the view that if the Supreme Court of British Columbia were to assume jurisdiction over this proceeding, the result would be to promote the fair and efficient working of the Canadian legal system. This factor was therefore seen as favouring the plaintiffs’ position.

Additional Factors

[55]        Abrioux J. rejected the defendant’s argument that if the Supreme Court were to take jurisdiction, it would thereby “usurp” the exclusive subject-matter competence of Eritrean labour tribunals over the plaintiffs’ claims. He noted Prof. Andemariam’s opinion that “the labour tribunals could not hear any claims against Nevsun and two of the three Plaintiffs cannot bring a claim before the labour tribunals at all.” (At para. 327(a).) As well, allegations regarding forced labour and torture “could not” be disputes arising under a collective bargaining agreement; and there was evidence pointing to the risk of interference in judicial proceedings by both the Special Court and the Office of the President of Eritrea.

[56]        Finally, Nevsun argued that if the act of state doctrine applied to limit the Court’s subject-matter competence, s. 11 of the CJPTA would not need to be addressed at all. Later in his reasons, the judge dismissed the Act of State Application, but at this point, he reasoned:

If I am wrong in that conclusion, then as was noted by the Privy Council in AK Investment [AK Investment CJSC v. Kyrgyz Mobil Tel Ltd & Ors (Isle of Man)(Rev 2) [2011] UKPC 7] at para. 101, the act of state doctrine does not preclude a court from undertaking an assessment of the deficiencies of a foreign court system.

In any event, Nevsun’s argument appears to accept that if I dismiss the Act of State Application, I can nonetheless take into account underlying concerns regarding sitting in judgment on actions by the State of Eritrea.

The foundational principles, both on this application and in the proceeding generally, are the interests of justice and the requirement that all parties receive a fair trial.

As I noted in the introduction to these reasons for judgment, Nevsun disputes in their entirety the plaintiffs’ allegations against it.

There can be no doubt that at the conclusion of the trial I will be asked to make findings regarding certain allegations concerning the actions of the State of Eritrea. But when I do, it will be within the context of deciding whether the plaintiffs have proven their case against Nevsun and not “sitting in judgment” on the actions of the State of Eritrea itself. [At paras. 331–35; emphasis added.]

Accordingly, this factor was also found to be equivocal in the forum conveniens analysis.

[57]        In the result, the judge ruled on the Forum Application that neither the CJPTA factors nor the case law clearly established that Eritrea was the more appropriate forum. He dismissed the defendant’s motion to decline jurisdiction and to stay the action pursuant to s. 11(1) of the CJPTA. (At para. 339.)

The Act of State Application

[58]        This application was brought pursuant to R. 21-8(1)(a) and (b) or alternatively, R. 9-5. It was based on the proposition that the Court lacked subject-matter competence in respect of the plaintiffs’ claims and that therefore no cause of action existed. The chambers judge approached the application on the assumption that the onus was on Nevsun to establish that the claims had no reasonable likelihood of success by reason of act of state. (At para. 347.)

[59]        Abrioux J. noted that the act of state doctrine (or ‘act of state’) has not yet been applied in Canada, but has been applied in the U.S and the U.K. In the U.S., the “classic formulation” was that provided by Chief Justice Fuller in 1897 in Underhill v. Hernandez, 168 U.S. 250:

Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. [At 252; emphasis added.]

[60]        In the U.K., the doctrine (or more specifically, various rules or principles from which it may be drawn) has a long history associated with Britain’s maritime and colonial past. It is usually traced back to Blad v. Bamfield (1673) 3 Swan 603; (1674) 4 Swan 604. In the 20th century, it evolved in the more global context, and most recently was the subject of long and detailed judgments from judges of the U.K. Supreme Court in Belhaj. These reasons were not available to the chambers judge, who referred instead to the Court of Appeal’s decision, reported at [2014] EWCA Civ 1394.

[61]        The judge began by quoting the definition of the act of state doctrine given by Lord Millett in R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3) [2000] 1 A.C. 147 (H.L.) (“Pinochet No 3”):

Immunity ratione materiae…. is a subject matter immunity. It operates to prevent the official and governmental acts of one state from being called into question in proceedings before the courts of another, and only incidentally confers immunity on the individual. ... It is an immunity from the civil and criminal jurisdiction of foreign national courts but only in respect of governmental or official acts.... The immunity finds its rationale in the equality of sovereign states and the doctrine of non-interference in the internal affairs of other states… [The cases] hold that the courts of one state cannot sit in judgment on the sovereign acts of another.… [At 269; emphasis added.]

Lord Millett had also described the difference between the act of state doctrine and the principle of state immunity (which in Canada is codified by the State Immunity Act, R.S.C. 1985, c. S-18 (“SIA”)) as follows:

As I understand the difference between them, state immunity is a creature of international law and operates as a plea in bar to the jurisdiction of the national court, whereas the Act of State doctrine is a rule of domestic law which holds the national court incompetent to adjudicate upon the lawfulness of the sovereign acts of a foreign state. [At 269; emphasis added.]

[62]        Another definition of the act of state doctrine had been provided by Lord Hope in Kuwait Airways Corporation v. Iraqi Airways Company (Nos 4 and 5) [2002] 2 A.C. 883 (H.L.):

There is no doubt as to the general effect of the rule which is known as the act of state rule. It applies to the legislative or other governmental acts of a recognised foreign state or government within the limits of its own territory. The English courts will not adjudicate upon, or call into question, any such acts. They may be pleaded and relied upon by way of defence in this jurisdiction without being subjected to that kind of judicial scrutiny. [At 1108; emphasis added.]

[63]        Act of state has been described as a doctrine defined by its limitations (or exceptions.) Relying on para. 54 of Belhaj (CA), the chambers judge listed the “acknowledged limitations” to the doctrine as follows:

1.         the act must occur in the territory of the foreign state;

2.         the doctrine will not apply to foreign acts of state which are in breach of clearly established rules of international law, or are contrary to English principles of public policy, or grave infringements of human rights [the public policy exception];

3.         judicial acts are not captured;

4.         [the doctrine does not apply if] the act has a commercial rather than a sovereign character [the commercial exception]; and

5.         the doctrine applies [sic; does not apply] in cases in which the only issue is whether the act occurred, rather than the act’s legal effectiveness. [At para. 353; emphasis added.]

The fifth exception – which obviously overlaps with the ‘incidental’ principle propounded in Buck and cases following it -- is often referred to as the “Kirkpatrick” exception: see W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corporation, International 493 U.S. 400 (1990), to which I will return below. With respect, however, I note that it was misstated by the chambers judge. As the intervenor in the case at bar noted in its factum, Kirkpatrick stands for the proposition that if the validity of an official act is not in issue, act of state is not triggered. (It appears the error was simply a typographical one.)

[64]        Beginning at para. 359, the judge described the parties’ respective positions on act of state Nevsun’s contention that the plaintiffs’ claims require the court to inquire into the legality of the conduct and motives of a foreign sovereign and thus fall squarely within the act of state doctrine; and the plaintiffs’ contention that the doctrine does not, or may not, form part of the common law of Canada, and that if it does, the public policy, Kirkpatrick and commercial limitations would apply.

[65]        The judge framed two questions requiring resolution, beginning with whether the act of state doctrine forms part of the common law of Canada. He referred to United Mexican States v. British Columbia (Labour Relations Board) 2015 BCCA 32, where this court elaborated on the distinction between the doctrine of act of state and the principle of state immunity. Harris J.A for the Court agreed with the observations of Lloyd Jones L.J. in Belhaj (CA) that:

The principles of state immunity and act of state as applied in this jurisdiction are clearly linked and share common rationales. They may both be engaged in a single factual situation. Nevertheless, they operate in different ways, state immunity by reference to considerations of direct or indirect impleader and act of state by reference to the subject matter of the proceedings. Act of state reaches beyond cases in which states are directly or indirectly impleaded, in the sense described above, and operates by reference to the subject matter of the claim rather than the identity of the parties. [At para. 48; emphasis added.]

In United Mexican States, the Court concluded that act of state was not engaged because the B.C. Labour Relations Board had “made no orders in relation to property in the ownership, possession or control of Mexico. It did not affect Mexico’s legal interests.” (At para. 49.) It was not necessary to go further to decide the appeal.

[66]        Abrioux J. in the case at bar emphasized that Eritrea is not a party to this proceeding (i.e., is not “impleaded”) and that Nevsun was “neither a foreign sovereign state nor an official of that state or the home state.” Rather, he said, “it is a British Columbia company which is alleged to have committed various human rights abuses and common law torts in furthering its commercial interests” in the form of the construction and operation of the Bisha mine. (At para. 368.) He found he was bound by this court’s decision in United Mexican States to rule that the doctrine of act of state exists in the common law of Canada. Even if he had not been so bound, he would have reached the same conclusion. The existence of the doctrine was also well established, he noted, in other jurisdictions and was supported by Castel and Walker, Canadian Conflict of Laws (6th ed., 2005) at 10-2 and 10-4.

[67]        Abrioux J. then turned to the second and more difficult question whether act of state was engaged in the circumstances of this case, such that the plaintiffs’ action should be dismissed pursuant to R. 21-8 or R. 9-5.

[68]        Nevsun contended that act of state applied to prohibit the adjudication of the plaintiffs’ claims and that indeed, the exercise of military authority is the “paradigm example” of the doctrine. (Citing Pinochet (No. 3) at 269.) The defendant referred the Court to four decisions of the Supreme Court of Canada that had ‘adverted’ to the doctrine, but the chambers judge found they did not provide the necessary basis for defeating the plaintiffs’ claim at this preliminary stage. Even if he were wrong in this conclusion, he said, he would nevertheless have dismissed the application on the basis that if the doctrine had been engaged, then the Kirkpatrick, public policy and ‘commercial activity’ limitations would apply or might apply. (At para. 395; my emphasis.) On this point, Abrioux J. relied on Habib v. Commonwealth of Australia [2010] FCAFC 12 and Belhaj (CA). He went to observe that both Habib and Belhaj had arisen in the context of preliminary applications; both concerned alleged human rights violations within the territories of foreign states; and, if jurisdiction were accepted, the domestic (or “municipal”) court would have been required to investigate the validity of conduct of a foreign state. (See para. 399.) Nevertheless, the court in each instance determined that the public policy exception to the act of state doctrine applied as a matter of law.

[69]        Nevsun also argued that in Canada, the public policy exception is subject to a “caveat”, which requires that the unlawfulness of the foreign sovereign’s conduct must have been “previously and clearly” established, whether by the court, the foreign state itself (as occurred in Canada (Justice) v. Khadr 2008 SCC 28), or an “international forum with jurisdiction” (as in Kuwait Airways (Nos 4 and 5) [2002] 2 A.C. 883.) Again, the chambers judge did not agree. In his analysis:

This submission presupposes that the public policy exception in the State Immunity Act is synonymous to the public policy limitation in the act of state doctrine. I disagree. The SIA is a complete code whereas the act of state doctrine is a much more fluid and unclear doctrine. In Belhaj, the Court of Appeal found that investigating the validity of the conduct of a foreign state could entail a number of considerations including:

(a)        as a result of fundamental changes in international law, including the move toward regulation of human rights, courts are more willing than in the past to investigate the conduct of foreign states and issues of public international law, when appropriate;

(b)        the strength of international consensus on prohibiting the conduct alleged;

(c)        whether an alternative international forum with jurisdiction exists, and if the action were taken in the national courts of another state, whether the defendants could plead immunity. As this was the case in Belhaj, the court found that as a result, “unless the English courts are able to exercise jurisdiction in this case, these very grave allegations against the executive will never be subjected to judicial investigation”; and

(d)        in the particular circumstances of the case, “the risk of displeasing our allies or offending other states” could not outweigh the “need for our courts to exercise jurisdiction” over a properly justiciable claim.

Since I have found that Eritrea is not an appropriate forum, all these factors apply to some degree in this case. [At paras. 4078.]

[70]        Nor was the judge persuaded that in light of the uncertainty concerning Belhaj (then under appeal), he should dismiss the plaintiffs’ claims, which Nevsun emphasized are “mere allegations” at this point. Indeed, the uncertainty reinforced his conclusion that it was “simply not possible” to decide this issue on a preliminary application in Nevsun’s favour. (At para. 411.) He also disagreed with the contention that the plaintiffs were seeking to have the Court adjudicate the legal validity of matters such as Eritrea’s Labour Code Proclamation or its NSP, or the alleged deficiencies in its system of justice. He said he would give the plaintiffs the opportunity to amend its NOCC to clarify that such was not the case. (At para. 413.)

[71]        Finally, a determination of whether the ‘commercial activity’ exception to the act of state doctrine applied would require a “factual analysis” of the acts in issue, including their purpose, and in their full context. In the Court’s analysis, this also militated against dismissing the action at this stage of the proceeding.

[72]        In the result, the judge dismissed Nevsun’s Act of State Application. In his words:

On this preliminary application, I am not prepared to accept that a doctrine which:

(a)        has yet to form the basis of a decision at any level of court in Canada;

(b)        has been described by a senior appellate court in Australia as being of “uncertain application” and “beyond the certainty that [it] exists there is little clarity as to what constitutes it”; and

(c)        on Nevsun’s own submission, has been described differently by two different divisions of the English Court of Appeal,

and if applied in the manner submitted by Nevsun, should result in the plaintiffs’ claims being stayed or dismissed pursuant to either Rule 21-8 or Rule 9-5.

As Chief Justice Black stated in Habib at para. 13:

It is not to the point that Mr. Habib's proceeding is a civil claim for damages and not a criminal proceeding under the Crimes (Torture) Act, the Geneva Conventions Act or the Criminal Code. The point is that, if a choice were indeed open, in determining whether or not the act of state doctrine operates to deny a civil remedy contingent upon breach of those Acts, the common law should develop congruently with emphatically expressed ideals of public policy, reflective of universal norms.

In my view, the same considerations apply here. After all, this is British Columbia, Canada; and it is 2016. [At paras. 419–21; emphasis added.]

The Customary International Law Application

[73]        In the final application before the chambers judge, Nevsun sought to strike out parts of the NOCC under R. 9-5 on the basis that they disclosed no reasonable claim or were “unnecessary” in that private law causes of action, including the private law torts pleaded, are available to the plaintiffs.

[74]        The chambers judge observed at para. 427 that the parties’ arguments on this motion raised several issues, including:

(a)        whether CIL is part of the common law of Canada;

(b)        if so, the extent to which it can form part of the basis for the plaintiffs’ claims against Nevsun. This will include a consideration of the doctrine of “adoption” in relation to the nature and scope of the applicable customary norms;

(c)        whether corporations are immune from CIL claims and in particular allegations of breaches of jus cogens or peremptory norms;

(d)        in that the plaintiffs’ claims may be subject to existing tort principles, whether the plaintiffs’ CIL claims are necessary;

(e)        whether this Court should recognize up to four new nominate torts to correspond to the breaches of the CIL pre-emptive norms alleged by the plaintiffs, being torture, slavery, forced labour and crimes against humanity.

[75]        With respect to CIL and the doctrine of adoption, the judge explained the content of jus cogens and found they were clearly engaged here:

CIL is a branch of international law that is not derived from any written instrument but is instead drawn from the settled practice of sovereign states. To establish a rule of CIL, states must show a pattern of behaviour among them in conformity with that rule (referred to as “state practice”), and that the pattern of behaviour arises out of a sense of legal obligation (“opinio juris”). A rule becomes recognized as a norm of CIL once it is clear that the community of sovereign states recognizes and observes it as a binding legal obligation. Once a rule is recognized as one of CIL it becomes, with very few and narrow exceptions, universally binding across all states. CIL is sometimes referred to in the literature as international custom or international usage.

.           .           .

There is also a set of higher-order international law principles known as jus cogens. These are peremptory norms of international law from which no derogation is permitted. Article 53 of the Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 for example, states that “[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.”

A jus cogens norm enjoys a higher rank in the international hierarchy than treaty law and even ordinary customary rules, having acquired a status as one of the most fundamental standards of the international community. Courts seeking to determine whether a norm of CIL has attained the status of jus cogens look to the same sources, but must also determine whether the international community recognizes the norm as one from which no derogation is permitted: Prosecutor v. Furundzija, IT-95-17/1-T, Final Judgment (10 December 1998) at paras.153-54; Siderman de Blake v. Republic of Argentina, 965 F. 2d 699 at 71415 (9th Cir. 1992).

The prohibitions on slavery, forced labour, torture and crimes against humanity are part of CIL, and all have the status of jus cogens. [At paras. 434, 437–39; emphasis added.]

[76]        In R. v. Hape 2007 SCC 26, a majority of the Court, per Justice LeBel, approved the proposition that CIL norms form part of the common law of Canada and should be used to develop it. In the Court’s analysis:

Despite the Court’s silence in some recent cases, the doctrine of adoption has never been rejected in Canada.  Indeed, there is a long line of cases in which the Court has either formally accepted it or at least applied it.  In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. [At para. 39; emphasis added.]

See also Bouzari v. Islamic Republic of Iran (2004) 2004 CanLII 871 (ON CA), 71 O.R. (3d) 675 (C.A.) at paras. 6366.)

[77]        Nevertheless, Nevsun took the position that the plaintiffs’ CIL claims had no reasonable chance of success for various reasons set out at para. 443 including arguments that CIL does not apply to corporations and that there was no reasonable prospect the Court would recognize breaches of CIL that are “unknown to the law”. Nevsun relied in part on Kazemi Estate v. Islamic Republic of Iran 2014 SCC 62, which it will be recalled concerned the death of a Canadian journalist, Ms. Kazemi, allegedly due to acts of torture committed against her while she was imprisoned in Iran. The Supreme Court of Canada upheld the dismissal of an action brought by her estate and her son against Iran. In doing so, it applied state immunity as codified by the SIA. Section 3 thereof provides:

3 (1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.

(2)  In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subsection (1) notwithstanding that the state has failed to take any step in the proceedings.

(Interestingly, s. 5 creates an exception for “any proceedings that relate to any commercial activity of the foreign state.”)

[78]        The majority in Kazemi found that even if there was an international consensus to the effect that Article 14 of the Convention Against Torture required the recognition of a civil remedy for the breach of its provisions, that would not “automatically transform [Article 14] into a principle of ‘fundamental justice’” for purposes of the Canadian Charter of Rights and Freedoms. Further, LeBel J. for the majority referred to the fact of Canada’s federal system of law-making:

This means that, unless a treaty provision expresses a rule of customary international law or a peremptory norm, that provision will only be binding in Canadian law if it is given effect through Canada’s domestic law-making process (Health Services and Support Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 69; Capital Cities Communications Inc. v. Canadian Radio-Television Commission, 1977 CanLII 12 (SCC), [1978] 2 S.C.R. 141, at pp. 17273; Currie, at p. 235). The appellants have not argued, let alone established, that their interpretation of art. 14 reflects customary international law, or that it has been incorporated into Canadian law through legislation. [At para. 149.]

and:

Taking the above as indicative of lack of state practice and opinio juris, I must conclude that Canada is not obligated by the jus cogens prohibition on torture to open its courts so that its citizens may seek civil redress for torture committed abroad. This is not the meaning and scope of the peremptory norm. [At para. 157.]

[79]        The majority in Kazemi also noted that the purposes of the SIA “largely mirror the purpose of state immunity in international law: the upholding of sovereign equality.” (At para. 42.) Canada’s choice to uphold state immunity applies, LeBel J. continued, in priority to the objective of civil redress for citizens who have been tortured abroad. He continued:

This policy choice is not a comment about the evils of torture, but rather an indication of what principles Parliament has chosen to promote given Canada’s role and that of its government in the international community. The SIA cannot be read as suggesting that Canada has abandoned its commitment to the universal prohibition of torture. This commitment is strong, and developments in recent years have confirmed it. [At para. 46.]

The Court found that none of the exceptions to state immunity listed in the SIA applied.

[80]        The chambers judge in the case at bar did not agree with Nevsun, however, that Kazemi demonstrated that the plaintiffs’ claims under CIL had no reasonable chance of success. Abrioux J. reasoned as follows:

The ratio of Kazemi is restricted to the SIA and claims brought against a foreign state and its officials. In my view Justice Lebel’s statement that “the mere existence of a customary rule in international law does not automatically incorporate that rule into the domestic legal context” should be considered in that context. If I am wrong in this interpretation then I am of the view that the fact a customary rule is not automatically incorporated into the domestic legal context does not mean that it can never be so incorporated.

While it is arguable that a similar result to Kazemi should occur in this case, it is also arguable that it should not, given that there is no statute, let alone a complete code that applies to the circumstances alleged to have occurred here. [At paras. 453–54; emphasis added.]

[81]        He also rejected the idea that the failure of other Canadian statutes – the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, and the Justice for Victims of Terrorism Act, S.C. 2012, c. s.2 – to provide private law causes of action for the breach of CIL norms, indicated that Parliament intended no such cause of action should exist. In Abrioux J.’s view, this was not necessarily so, and there was no Canadian legislation in this case (unlike Kazemi) that conflicted with the theory of the plaintiffs’ CIL claims. (At para. 462.) Further, the fact that those claims (or at least aspects thereof) were actionable as private law torts did not mean they had no reasonable chance of success on the basis of CIL:

The plaintiffs are entitled to base their claims on additional or alternative bases of relief as long as they otherwise satisfy the requirements for proper pleadings. [At para. 464.]

[82]        As noted earlier, another “key” argument raised by Nevsun was that CIL does not recognize that corporations, being creatures of domestic law, can be held responsible for breaches of CIL norms. The judge set out the parties’ respective arguments on this point at paras. 471- 472, noting in particular U.S. case law arising out of the Alien Tort Statute, 28 U.S.C. §1350; and the fact that at the Nuremberg trials, the heads of major business entities and the corporations themselves were said to be liable to those who had lost assets as a result of anti-Jewish confiscatory laws. Nevsun argued here, however, that it was for the legislature, and not the courts, to bring about major changes in the law that have complex ramifications, “however necessary or desirable”. (Citing Watkins v. Olafson 1989 CanLII 36 (SCC), [1989] 2 S.C.R. 750 at 760–761 and R. v. Salituro 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654 at 670.)

[83]        Ultimately, the chambers judge found it unnecessary to decide these and other substantive issues raised by the parties concerning the adoption of CIL and the existence of corporate immunity. In his analysis, the question to be answered at this stage was whether Nevsun had shown the CIL claims were ‘bound to fail’. He called in aid the oft-quoted passage from the judgment of Wilson J. in Hunt v. Carey Canada Inc. 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 to the effect that where a pleading contains a difficult and novel question of law, it “may well be critical” that the action be allowed to proceed. “Only in this way”, she continued, “can we be sure that the common law … will continue to evolve to meet the legal challenges that arise in our modern industrial society.” (At 990–991.) Abrioux J. concluded:

Since there is merit to the submissions of both Nevsun and the plaintiffs, I have concluded:

(a)        Nevsun has not established that the inclusion of the CIL claims in the NOCC constitutes a radical defect, has no reasonable chance of success and is bound to fail;

(b)        rather, a real issue exists, one which has a reasonable chance of success. The issue is whether such claims are permitted based on the common law as it currently stands or constitute a “reasonable development” of the common law; and

(c)        the CIL claims raise arguable, difficult and important points of law and should proceed to trial so that they can be considered in their proper factual and legal context. This is necessary such that the common law and the law of tort may evolve in an appropriate manner.

Accordingly the CIL Application is dismissed. [At paras. 484–85.]

ON APPEAL

[84]        In its factum, Nevsun asserts the following errors on the part of the chambers judge:

i)         an error in law in holding that the plaintiffs’ claims were not barred by the act of state doctrine;

ii)         an error in law in declining to strike out the plaintiffs’ claims founded on customary international law; and

iii)        an error in law or in principle in refusing to decline jurisdiction.

The third ground challenges not only the judge’s assessment of forum conveniens, but also his ruling on the Evidence Application admitting the secondary reports described earlier “for the limited purpose of providing a social, historical and contextual framework to the first hand allegations or properly attributed hearsay”. (See para. 138.) I propose to begin with that ruling and then address the grounds of appeal in the order in which I have described the trial judge’s findings on the other applications.

Nature of the Case

[85]        At the outset, however, it may be useful to say a few words about the nature of the plaintiffs’ case. Each side in this litigation sees the case differently. In his able argument, Mr. Andrews characterized the case as “all about state actions”. He contends that the primary tortfeasors are “state actors” and that the sovereignty of Eritrea with which Canada has diplomatic relations as an independent state is under direct attack in this proceeding. He describes the wrongs on the part of Nevsun asserted in the NOCC as “derivative” and “accessory” to wrongful conduct of Eritrea: Nevsun is said to have ‘aided’, ‘abetted’, ‘condoned’, and ‘failed to prevent’ conduct on the part of Eritrea, rather than to have harmed the plaintiffs directly. As a corollary, counsel submits, Nevsun would be exposed to liability if and only if Eritrean state actors are found to have engaged in the wrongs asserted. Thus, if a British Columbia court were to embark on the trial of the case, it would find itself “sitting in judgment” over the NSP, the military and indeed the governance of a foreign state a possibility Mr. Andrews strongly decries as contrary to all accepted norms of international comity, equality and order.

[86]        The plaintiffs characterize their case very differently. In their submission, it is not about the conduct of Eritrean state actors, but about Nevsun’s (alleged) complicity in serious breaches of human rights and international norms. Mr. Fiorante denies that the plaintiffs’ claims are purely derivative, emphasizing allegations in the NOCC that Nevsun “ordered, solicited or induced the use of forced labour” or failed to meet its own standards on “social and environmental performance”. These, counsel argues, are not “secondary” or indirect. In any event, Eritrea and its officials would be protected by the operation of state immunity from any “roving commission” by a British Columbia court into its governance and legal system. The validity or invalidity of its laws or official acts under Eritrean law would not affect that immunity and would be of only incidental interest.

[87]        On this point, Mr. Mogerman referred us to a line of cases that distinguish between situations in which the validity or constitutionality of a foreign state’s conduct is in issue, and those in which only the existence of the conduct is at issue and the legality thereof is only incidental. In Buck v. Attorney-General [1965] 1 Ch. 745 (C.A.), for example, Lord Diplock contrasted the case before the Court, which was concerned entirely with the validity of a law of a foreign sovereign state, with situations where the issue arose incidentally. “The validity of this law”, he said, “does not come into question incidentally in proceedings in which the High Court has undoubted jurisdiction. For instance, the validity of a foreign law might come into question incidentally in an action upon a contract to be performed abroad.” (At 770.)

[88]        In terms of Canadian law, counsel noted Hunt v. T&N plc 1993 CanLII 43 (SCC), [1993] 4 S.C.R. 289, where the plaintiff in an asbestos case from this province sought to contest the constitutionality of a Quebec statute dealing with the production of business records. The issue arose whether the statute was ultra vires or whether it was “constitutionally inapplicable” to a judicial proceeding in another province. (At 296.) In ruling that the issue could be ruled on by a British Columbia court, La Forest J. stated:

In determining what constitutes foreign law, there seems little reason why a court cannot hear submissions and receive evidence as to the constitutional status of foreign legislation. There is nothing in the authorities cited by the respondents that goes against this proposition. Quite the contrary, Buck v. Attorney-General, … holds only that a court has no jurisdiction to make a declaration as to the validity of the constitution of a foreign state. That would violate the principles of public international law. But here nobody is trying to challenge the constitution itself. The issue of constitutionality arises incidentally in the course of litigation. [At 3089; emphasis added.]

[89]        In addition to Buck, LaForest J. cited Manuel v. Attorney General [1982] 3 All E.R. 786 (Ch. D.), where the Court observed that the courts of one country should not pronounce on the validity of a statute of another, but expressly excepted cases where the question arises merely incidentally. Similar reasoning appears in Moti v. The Queen [2011] HCA 50, where the High Court approved a statement to the effect that courts are:

… free to consider and pronounce an opinion upon the exercise of sovereign power by a foreign Government if the consideration of those acts of a foreign Government only constitutes a preliminary to the decision of a question … which in itself is subject to the competency of the Court of law. The fact that the decision of a foreign official is called into question does not of itself prevent the courts from considering the issue. (At para. 52; citing Lucasfilm Ltd. v. Ainsworth [2011] 4 All E.R. 817 at 843).

[90]        Meeting the defendant’s point more directly, Mr. Mogerman also emphasizes that no challenge is made in the instant case to Eritrean laws (which generally take the form of proclamations) or official acts. Certainly Nevsun has not pleaded that any of the alleged breaches of human rights or international norms was or would have been authorized by Eritrean law or by any official policy decision. Indeed, as seen at para. 12 above, Eritrea has endorsed the Convention Against Torture and other similar agreements. In the plaintiffs’ submission, if violations of jus cogens are found to have occurred at the Bisha mine, considerations of comity would not be offended or undermined by a British Columbia court’s considering such conduct in the course of trying claims against Nevsun. By ratifying the Convention, all states can be taken to have agreed that such violations are “internationally denounced.” (See Habib at para. 95.) In short, no question about the legality of torture of other breaches of jus cogens can arise.

[91]        At least as regards the pleadings, the chambers judge saw the case generally as the plaintiffs do. I repeat what he stated at para. 413 of his reasons:

I do not agree with Nevsun that what the plaintiffs seek to do is to have the court enquire into Eritrea’s conduct for the purpose of adjudicating upon the legal validity of such matters as the Labour Code Proclamation, the NSP or the alleged frailties in that state’s system of justice. Should I be wrong in that conclusion, then I would provide the plaintiffs with the opportunity to amend the NOCC such that it was clear that this was not the case.  [Emphasis added.]

[92]        I am not convinced that the question of Nevsun’s liability can be divorced so cleanly from the matter of Eritrea’s conduct as the plaintiffs suggest. I agree with Mr. Andrews that the plaintiffs’ assertions relate not completely but substantially to secondary or ‘derivative’ conduct on the defendant’s part. In respect of those assertions (and assuming for purposes of this discussion that the law of British Columbia applies to this issue), one or more of Eritrea, its military, Segen or Mereb must be found to have committed one or more of the pleaded wrongs before Nevsun could be found to have ‘aided’, ‘abetted’, condoned’ or ‘failed to prevent’ same; or before it could be vicariously liable. In this sense, counsel for Nevsun is correct that as the NOCC now stands, the company could be liable “if and only if” Eritrea, its officials or agents were found to have violated fundamental international norms and Nevsun were shown to have been complicit in such conduct. It is for this reason, one might infer, that Nevsun takes the position that the act of state doctrine applies to shield Eritrea from having a British Columbia court ‘sit in judgment’ over its sovereign acts, even though Eritrea itself and its officials are undoubtedly protected by state immunity.

Error in Refusing to Decline Jurisdiction?

Admissibility of Secondary Reports

[93]        The defendant’s submission with respect to this ground of appeal includes a discrete question, namely whether the chambers judge erred in admitting the secondary reports into evidence and, having done so, erred in disregarding the limited purpose for which he had admitted them. In particular, Nevsun submits, in finding it would “defy common sense” to “not find there is a real risk that the plaintiffs would not receive a fair trial in Eritrea”, the judge effectively treated the secondary reports as establishing the facts asserted. At the same time, Nevsun concedes in its factum that it was open to the Court to accept the first-hand evidence it did and that that evidence supported the finding of “real risk”.

[94]        Canadian courts have, as the judge suggested, varied in their approach to secondary evidence not adduced via expert opinion. At one end of the spectrum, we see Canadian Foundation for Children, Youth and the Law v. Canada 2004 SCC 4. There, the Court cited views expressed by the Human Rights Committee of the UN on corporal punishment, to the effect that such punishment of children in schools engages Article 7 of the International Covenant on Civil and Political Rights. (See para. 33.) This opinion was what Nevsun’s counsel would describe as “anonymous” it was not attributable to any one author and there was no indication it was admitted as expert opinion evidence in the usual way through an expert available to be cross-examined in court.

[95]        On the other hand, we were referred to Isakhani v. Al-Saggaf 2007 ONCA 539, a family law case in which the mother obtained temporary custody of her child after arriving in Canada from Dubai. The father moved to have the order set aside and to have the child returned to Dubai. The lower court considered a “mass” of affidavit evidence but also received a report prepared by Amnesty International in 2005 concerning discrimination and violence against women in the Gulf Cooperation Countries, including Dubai. The judge of first instance admitted the report and relied on it “insofar as it proves there is reason to be concerned about the degree of access to justice that a woman in general, and a married woman in particular,” would have in Dubai “where there is a concern over domestic violence or domestic abuse.” (At para. 29.) He gave it “a fair bit of weight” and concluded that if the mother and child were returned to Dubai, they would be subject to violence and abuse.

[96]        The Court of Appeal ultimately dismissed the father’s appeal, but expressed the view that the report should not have been admitted because it was of only marginal relevance and its probative value was “manifestly outweighed by its prejudicial effect.” (At para. 36.) The Court also expressed a second concern as to whether the report had constituted inadmissible hearsay evidence, although it did not finally answer that question. In the analysis of Moldaver J.A., as he then was, speaking for the Court:

Given my conclusion that the Report was otherwise inadmissible, I need not finally resolve the hearsay issue. I would simply point out that where a document like the Amnesty International Report is being tendered for the truth of its contents in respect of contested facts (be they adjudicative, legislative or social) that are at the centre of the controversy between the parties, the reliability and trustworthiness of the document takes on added importance. To that end, I believe that trial and motion judges should be guided by the principles set forth by Binnie J. in R. v. Spence (2005), 2005 SCC 71 (CanLII), 202 C.C.C. (3d) 1 at paras. 60–61. Although Binnie J.’s comments were directed to the issue of judicial notice, I believe that they are apposite to situations like the one at hand. Thus, in this case, the closer the Amnesty International Report came to the dispositive issue, namely, whether the wife and child would be adequately protected by the Dubai justice system, the closer scrutiny it deserved.

Here, that could well have translated into a need to submit evidence from witnesses with firsthand knowledge of the Report who could be subject to meaningful cross-examination. No such witnesses were available here. The Report was appended to the affidavit of Mr. Robert Alexander Neve, Secretary-General of Amnesty International, Canadian Section. As is apparent from Mr. Neve’s affidavit, he did not participate directly in the drafting of the Report; hence, he could only attest to the fact that it had been prepared “in conformity with Amnesty International’s exacting quality control standards”.

Without questioning the adequacy or legitimacy of those standards, it is apparent that Mr. Neve could not have been questioned about any of the details underlying the Report, including basic matters such as the people who were interviewed and, perhaps more importantly, those who were not. [At paras. 38–40; emphasis added.]

The latter complaint, of course, is one that would apply to many, if not most, reports prepared by the UN, governmental agencies or NGOs: they are not written by any one individual and are usually the work product of many people. The authors may also have undertaken not to reveal the identity of their sources.

[97]        The particular reports objected to by Nevsun, which were simply appended as exhibits to the affidavit of Ms. Carmichael-Yanish, are as follows:

1.         Two reports of the United Nations Commission of Inquiry (“COI”) into human rights in Eritrea in 2015 and 2016. The summary of the 2015 report states that although the Commission was unable to visit Eritrea, it obtained first-hand testimony by conducting 550 confidential interviews with witnesses residing in third countries and received 160 written submissions. The summary continues:

In the present report, the Commission shows how the initial promises of democracy and rule of law, incarnated in the never-implemented Constitution of 1997, were progressively suppressed and then extinguished by the Government. It details how the Government has created and sustained repressive systems to control, silence and isolate individuals in the country, depriving them of their fundamental freedoms. Information collected on people’s activities, their supposed intentions and even conjectured thoughts are used to rule through fear in a country where individuals are routinely arbitrarily arrested and detained, tortured, disappeared or extra-judicially executed. The Commission also describes how, on the pretext of defending the integrity of the State and insuring itself-sufficiency, Eritreans are subject to systems of national service and forced labour that effectively abuse, exploit and enslave them for indefinite periods of time.

This report is over 500 pages in length and begins with a detailed description of the COI’s mandate, methodology and legal framework. It describes Eritrea’s judicial system (in which, it states, judges are appointed, reassigned and dismissed at the will of the President.) It also describes the Special Court, which was established by proclamation in 1996 to address corruption, illegal currency exchange and embezzlement. The report continues:

The Special Court is not part of the ordinary judicial system and it does not have any formal links with the High Court and the Chief Justice. It derives its powers from the Ministry of Defence rather than from the Ministry of Justice but it is the Attorney-General who decides which cases go to the Special Court. The procedure before the Special Court clearly disregards the most basic safeguards related to due process, including those explicitly provided for under the Transitional Codes. Judges are senior military officers without legal training, directly appointed by the President and directly accountable to him. Some judges such as the renowned singer Mr. Estifanos Abraham “Zemach” are appointed because of their popularity. One judge acts as Prosecutor. There is no right to have a legal representative or to present one’s defence. Trials are not public and there is no public record of the proceedings. Decisions are not published. The Special Court has the capacity to re-open cases that have already been decided by other courts. In fact the Special Court is empowered to use any method to pursue the truth. The decisions, which are final and binding since there is no right of appeal, are reportedly not taken on the basis of the domestic laws in force in Eritrea or established jurisprudence but on the basis of the judges’ opinions. [At para. 329; emphasis added.]

The repression of all walks of life by the ruling party is described in detail as is the “widespread and systemic” use of torture throughout Eritrea inflicted on detainees and on NSP conscripts “during their military training and throughout their life in the army.” The Commission finds that torture is used “as a means to subjugate national service conscripts, instill fear among the population and silence opposition.” The various forms of torture normally used are illustrated and the descriptions of persons who have suffered such torture are recounted.

2.         Report of the Special Rapporteur on the situation of Human Rights in Eritea. This report was prepared for the UN Human Rights Council and is dated May 13, 2014. It discusses in particular the conditions of national service in Eritrea and notes at para. 51:

Military service escapees, as well as perceived offenders, are frequently sent to one of numerous prisons as punishment; Wi’a prison camp, situated on the Red Sea coast, south of Massawa, is a notoriously harsh one. Punishment amounting to torture, inhuman or degrading treatment, as well as detention in inhumane conditions appear to be the norm, even for trivial cases. National service conscripts in detention are also used for hard labour.

3.         Report prepared by the European Asylum Support Office (“EASO”) on Eritrea for the purpose of assisting in the determination of claims for international refugee protection. This report acknowledges that some of its core topics are “particularly affected by the problematic access to reliable sources”, including “national service, prison conditions, torture and treatment of deserters and draft evaders”. The EASO acknowledges its own use of secondary sources, including the U.S. State Department and Human Rights Watch, adding that there is some risk of “roundtripping” and “false confirmation of information”. Under the heading “Methodology”, the report states that it is based on publicly available reports of COI units, UN agencies, human rights organizations, scholars, official and NGO papers, government and diaspora media. In order to ensure its compliance with EASO methodology, the report was reviewed by “COI specialists” and by Mr. Connell.

The EASO report is slightly less restrained than the COI report. In describing the “transitional” government, it states:

No division of power exists in Eritrea since the constitution has never been implemented. The parliament has not been convened for more than 10 years, the ministers hold few powers, and the president and the military intervene in the judicial system. According to several scholars and other sources, the official state institutions are in reality institutional facades and President Isaias rules the country informally by decree with the help of advisors from the [ruling party] leadership and high-ranking military representatives. [Emphasis added.]

The EASO reports that a large number of criminal cases now pass through the Special Court and that extra-judicial prison sentences are “meted out by secret committees on a regular basis. However, due to the secretive and arbitrary nature of these procedures, it is hard to obtain information about them.”

Although Eritrea is a party to the Convention Against Torture, the report says torture is used for many purposes in Eritrean prisons and in the military on an arbitrary basis, and that the Special Court is now used by the leaders of the country to “circumvent the formal justice system in political, administrative and criminal cases.”

4.         “World Reports” prepared between 2006 and 2015 by Human Rights Watch. Some of these reports are quite brief and not surprisingly, cite inter alia the reports of other NGOs and the UN. However, they do contain references to interviews of people in and outside of Eritrea who claim to have experienced torture and other human rights abuses. With respect to the NSP, the 2009 report states:

Unlike earlier military mobilizations for the war of independence and the 19982000 war with Ethiopia, the current mass and indefinite mobilization of the population into national service ostensibly in readiness for a potential Ethiopian invasion is increasingly unpopular. The repressive apparatus required to keep so many unwilling people conscripted and mobilized is extensive: summary executions, brutal punishments, reprisals against families, and a huge prison infrastructure outside the rule of law in which acts of torture and cruel treatment are commonplace and committed with impunity. National service conscripts serve in the army, work on national development projects, or are loaned to private firms controlled by army officers and government allies for their gain. Compensation is minimal and non-compliance is not an option.

The 2015 Human Rights Watch report refers specifically to the Bisha mine:

The Eritrean construction industry is a government monopoly that uses forced conscript labour. In 2013, Human Rights Watch found that several hundred conscripts had been used by state-owned Segen Construction Co. to build infrastructure at the Bisha Mine, Eritrea’s only operating mineral mine. Bisha is majority-owned by Nevsun Resources, a Canadian mining company. Nevsun has expressed “regret if certain employees of Segen were conscripts” during the mine’s construction, but insists there are no ongoing abuses. Segen remains a contractor at Bisha. Able-bodied men older than 50 had been forced to perform militia duty several times a week without pay since 2012. They are used as armed guards and as labour on public work projects, prompting some to flee.

5.         Report of the U.S. Department of State, Bureau of Democracy, Human Rights and Labour. This was compiled from reports received from other organizations (e.g., the World Bank). It describes a similarly bleak picture of human rights in Eritrea and from individuals who are not named.

[98]        Nevsun objects to the admissibility of these materials on the bases that they offer opinions on a central issue; they are not the subjects of judicial inquiry; they contain unattributed hearsay and double hearsay; and it is not possible to test the facts and opinions expressed, through cross-examination or otherwise. It seems to me, however, that the type of “social” evidence contained in these reports could only be adduced in reports of this kind. It is difficult to imagine how one “expert” could purport to swear the accuracy of, for example, all the information contained in the UN COI report. Further, experts and scholars in most fields almost invariably cite previous studies and attribute such authoritative works. Some comfort might be taken from the descriptions given by some organizations (such as the UN, EASO and Human Rights Watch in this case) of their methodology and standards; but such information is not always provided. As this court noted in Jones v. Zimmer GMBH 2013 BCCA 21, in a passage quoted by the chambers judge at para. 183:

Experts must as a matter of practical necessity rely on second-hand source material for their opinions. Proponents of expert opinions cannot be expected to prove independently the truth of what the experts were taught by others during their education, training, and experience or the truth of second-hand information of a type customarily and reasonably relied upon by experts in the field. Accordingly, the degree to which an expert opinion is based on hearsay evidence is a matter to be considered in assessing the weight to be given the opinion. [At para. 50.]

[99]        Canadian courts, following the lead of the Supreme Court of Canada, have in recent years shown a willingness to decide admissibility on the basis of principle rather than hard and fast rules, leaving it to trial judges to assess weight as appropriate. In particular, the hearsay rule has been relaxed in favour of a “principled” approach that weighs probative value against the risk of prejudice to a party: see R. v. B (K.G.) 1993 CanLII 116 (SCC), [1993] 1 SCR 740. In Charter cases, it appears the Supreme Court has often accepted the admissibility of secondary reports relevant to social or historical facts, seemingly without objection or comment: see, for example, Carter v. Canada (Attorney General) 2012 BCSC 886, aff’d 2015 SCC 5, in which the trial judge admitted evidence of various secondary sources (see paras. 114117) and the Supreme Court of Canada did not express disapproval (see para. 47); and Canada (Attorney General) v. Bedford 2013 SCC 72 at paras. 5056; A.B. v. Bragg Communications Inc. 2012 SCC 46 at para. 26; and R. v. Clayton 2007 SCC 32 at paras. 110113. See also R. v. Parks (1993) 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.) at paras. 4252. In Constitutional Law of Canada (5th ed., 2016) Professor Hogg writes that the relaxation of the rules of evidence for legislative facts in constitutional cases has “spilled over from references and appeals to trials” and that “it seems clear that a trial court, when asked to make findings of legislative fact, has a discretion to admit unsworn evidence that is not ‘inherently unreliable.’” (At 60-18.)

[100]     In my view, the conditions of reliability and necessity that favour a court’s accepting such evidence in constitutional cases also apply to the applications before the chambers judge: there are “circumstantial guarantees” of the reliability of studies or reports done by agencies such as the UN; and ultimately the only way social facts can be proven is by eyewitness evidence (that may be unavailable for various legitimate reasons) or by such reports. In this case, the plaintiffs have provided evidence of both kinds. It also bears emphasizing that the reports were adduced and admitted not as evidence on the substantive issues to be determined at trial, but only on the interlocutory motions before the Court. On the Forum Application, they were relevant mainly to the “real risk” question. Contrary to the suggestion of counsel for Nevsun, this issue and the others raised on the four applications were not “at the centre of the controversy between the parties.”

[101]     I conclude that in the circumstances of this case, the judge did not err in law or otherwise in admitting the secondary reports for the limited purpose of providing background or context relevant to the “social facts” forming the context of the Forum Application (and to some extent, to the other applications as well). Nor do I see any basis on which we could conclude that contrary to what he stated, the chambers judge used these reports as evidence “at large.” (See para. 138(b).) Again, and as he emphasized at para. 10 of his reasons, he did not make findings of fact on the substantive issues that are to be tried; nor did he admit evidence for purposes of the trial. I would not accede to this aspect of the first ground of appeal.

The Connell Reports

[102]     I turn next to the evidence of Mr. Connell, a researcher and student of Eritrea for many years, who has interviewed many refugees from that country as part of his research. In his first report, Mr. Connell cited information provided by “leading human rights watchdogs” ranging from Amnesty International to the U.S. State Department. He was then asked by counsel for the plaintiffs to clarify his sources of information and opinions, which he did in his second report, provided on December 1, 2015. It was attached to an affidavit in which he explained his methodology at length:

I have been asked to explain my practice of protecting the identity of refugees I have interviewed in the course of conducting research on country conditions in Eritrea. As my requests for a visa to visit Eritrea have been consistently denied or ignored, including inquiries I made through diplomatic intermediaries this year, my research has been conducted by interviewing individuals who have fled or otherwise left Eritrea. The vast majority of witnesses I have interviewed fear reprisals by the Eritrean state against them or their family members should their identities by revealed, a practice that has been extensively documented by UN agencies, the U.S. State Department, the Immigration and Refugee Board of Canada … Human Rights Watch and numerous other governmental and nongovernmental agencies and monitoring groups. For this reason, I have conducted these interviews on the basis that the witnesses’ names will be kept confidential. This is standard practice in the investigation of situations that may involve violations of human rights and in practice before the various refugee boards before whom I have appeared as an expert witness. The United Nations Commission of Inquiry on Human Rights in Eritrea reported:

The Commission established procedures to ensure the protection of victims, witnesses and other sources of information at all stages of its work and beyond its conclusion. These procedures are in accordance with the standard policies adopted by OHCHR, which are themselves based on the central principles of confidentiality and “do no harm”.

The protection of victims and witnesses was one of the main challenges faced by the Commission during its investigations. Almost all victims and witnesses in contact with the Commission feared reprisals by Eritrean authorities, be it themselves or targeting their family members still living in Eritrea. Irrespective of the country or location where the interview were organised, the persons who agreed to speak on a confidential basis to the Commission were convinced that the Eritrean authorities were in a position to monitor their conduct through a network of spies and informants within the Eritrean diaspora. Indeed, the Commission was able to witness one specific episode of such monitoring. The Commission is, therefore, particularly grateful to those individuals who, notwithstanding such fears, did agree to speak to the Commission.

This is completely consistent with my experience in conducting field research for other international agencies and human rights monitors, such as Human Rights Watch, for which I produced a report on arms trafficking in Sudan in 1998 and Freedom House, for which I produced country assessments on democratic governance in Eritrea in 2005, 2007 and 2011[sic], among others, and for major media and peer-reviewed academic journals. Virtually all of the witnesses I interviewed expressed fear of reprisals. For this reason, I have adopted the practice of withholding the witnesses’ identity. The information gathered from these witnesses is compared against other available sources in order to assess the reliability of the information. [At paras. 78; emphasis added.]

[103]     Mr. Connell’s substantive report notes the large numbers of refugees who ‘pour in’ to Ethiopia from Eritrea each month, “many of them national service conscripts who questioned the terms or conditions of their service or sought to escape after experiencing abusive treatment reaching the level of torture.” He continues:

My interviews with refugees confirmed that these practices continue unabated. When I visited Eritrean refugee camps in Ethiopia in June 2015, new arrivals were pouring in at rates of 3,000 per month. The UN Refugee Agency (UNHCR) counted 107,000 at the start of 2015 and projected this to climb to 132,000 by December (allowing for the fact that some will continue to other destinations). Few I spoke with opposed national service per se; most saw it as a national obligation. The reasons they gave for leaving were having to serve 15 years or longer; the extent of regime control over their lives from 11th grade onward; the bare subsistence pay that forced many to rely on subsidies from parents in a culture where parents traditionally rely on them, even as government officials, party members and others in the ruling circle lived well; the extremes of punishment and public humiliation meted out for real or imagined infractions with no accountability or recourse; and the prevalence of torture and abuse in the jails and prisons never visited by external monitors with no prospect of release other than escape. [At para. 63; emphasis added.]

[104]     His report ends thus:

Government officials, notably PFDJ Political Affairs head Yemane Gebreab (often characterized as a top “presidential advisor”), have also told visiting delegations and diplomats that the national service is being scaled back to its original term of 18 months and that the current cohort will be released in 2016. However, such an announcement has not been made inside Eritrea to the conscripts themselves or to the general public, and there has been no indication that such a move would presage a full, phased demobilization of the tens of thousands who have already served longer than 18 months. …

There is simply no evidence that Eritrea’s national service has so far changed from being a form of indefinite indentured servitude forced labor or that it is likely to change soon. There are individual exceptions, such as those exempted for personal disabilities or those excused to care for dependents, and some have been released for other reasons, but there remain no clear and consistent avenues for release for the bulk of the conscripts, and tens of thousands of young people continue to serve in military service and non-military positions at bare subsistence levels of “pay” under extremely coercive conditions where physical abuse, public humiliation and torture are common while perpetrators are free to act with utter impunity. Thousands also remain in prison for questioning the length or nature of their service or for trying to leave it, often after years of dutiful service. [At paras. 7172; emphasis added.]

[105]     Nevsun objects to Mr. Connell’s evidence on the ground that it is ‘massively reliant’ on unattributed hearsay and double hearsay; that it constitutes argument in the guise of opinion; and since it contains summaries of other secondary reports, it creates the risk of “roundtripping”. I have already dealt with arguments of this kind in connection with the other secondary reports. A stronger objection might have been made on the bases of relevance and necessity, given that his evidence seems to be directed more to the merits of the plaintiffs’ claims than to the issues before the Court on the preliminary applications. His affidavits add little on the ‘real risk’ issue or on the operation of the Eritrean legal system. Certainly the material supports the UN and other reports discussed above, but to that extent, the necessity of its admissibility is also attenuated.

[106]     The chambers judge acknowledged that Mr. Connell’s reports contained “certain deficiencies”, including the fact that they purported to reach factual conclusions merely on the basis of interviews with refugees. (See para. 184(b).) He accepted the evidence nevertheless, again for the limited purpose of describing “social” or “historical” facts which were relevant to give context to the first-hand evidence adduced by the plaintiffs. The judge also noted that Mr. Connell’s research and opinions could have been explored in greater depth had Nevsun chosen to cross-examine him.

[107]     Although I might have reached a different result on the admissibility of Mr. Connell’s reports, I cannot say the chambers judge erred in law or in the exercise of his discretion in admitting them for the limited purpose he did, while giving them limited weight in light of their evidentiary deficiencies.

Forum Conveniens Factors

Standard of Review

[108]     I come now to three arguments in which the weight given by the chambers judge to the factors listed in s.11 of the CJPTA is challenged on appeal. The parties agree that as a discretionary decision, the chambers judge’s assessment of weight to be given to the factors is entitled to deference, but counsel differ on the exact formulation of the applicable standard of review. Nevsun states in its factum that on questions of jurisdiction, an appellate court may interfere “where the court below has erred in law or in principle or has made a clear and serious error in the determination of relevant facts. An error in principle includes failing to give weight to all relevant considerations.” (Citing Breeden v. Black at para. 37 in a passage adopted in Garcia (CA) at para. 55.) For their part, the plaintiffs cite the standard enunciated in the sister case to Breedin, Éditions Écosociété Inc. v. Banro Corp. 2012 SCC 18. There the Court stated:

The application of forum non conveniens is an exercise of discretion reviewable in accordance with the principle of deference to discretionary decisions; an appeal court should intervene only if the motion judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision (see Young v. Tyco International of Canada Ltd. [2008 ONCA 709] at para. 27). [At para. 41.]

See also Lapointe Rosenstein Marchand Melancon LLP v. Cassels Brock & Blackwell LLP 2016 SCC 30 at para. 54.

[109]     This court’s decision in Garcia, which like this case involved a judgment as to the existence of a “real risk” of an unfair trial process in a foreign court, is also relevant to standard of review. The appeal in Garcia was allowed on several bases, and fresh evidence was adduced on the appeal that led to a different conclusion regarding forum conveniens. (See para. 71.) The Court found that the judge below had not given “adequate consideration” to the difficulties the appellants would face in bringing a stand-alone civil suit against the defendant in Guatemala (see para. 79); had failed to weigh the potential impact of a limitation period under Guatemalan law (see para. 95); and had adopted an incorrect test in connection with the corruption and injustice alleged in the Guatemalan judiciary. (At para. 123.) At para. 126, the Court also found:

… the judge erred by considering the risk of unfairness as a secondary stage in the forum non conveniens analysis and by defining the question as whether Guatemala was “capable” of providing justice. As a result, she gave insufficient weight to the evidence of weakness and lack of independence in the Guatemalan justice system in her discretionary weighing of the factors, particularly given the context in which the alleged shooting occurred. The evidence of weakness in the Guatemalan justice system ought not to be ignored. A discretionary decision may be reversed where the lower court gives no, or insufficient weight to relevant considerations: Friends of the Oldman River Society v. Canada (Minister of Transport)1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3. Based on the judge’s errors, it is open to this Court to reverse her discretionary decision. Though the appellants’ evidence regarding the risk of unfairness in Guatemala is of a general nature, I am of the view that the evidence factors against finding Guatemala is clearly the more appropriate forum. I place moderate weight on this factor given the quality of the appellants’ evidence. [At para. 126; emphasis added.]

The plaintiffs object that the underlined passages, which essentially apply the longstanding standard of review enunciated in Oldman River, amount to no standard of review and is “little different from simply reweighing all the factors de novo.”

[110]     With respect, this assertion ignores the fact the standard was formulated as a deferential one. Thus LaForest J. stated for the majority in Oldman River that:

The principles governing appellate review of a lower court’s exercise of discretion were not extensively considered, only their application to this case. Stone J.A. cited Polylok Corp. v. Montreal Fast Print (1975) Ltd., 1983 CanLII 4999 (FCA), [1984] 1 F.C. 713, 1 C.I.P.R. 113, 41 C.P.C. 294, 76 C.P.R. (2d) 151, 52 N.R. 218 (C.A.), which in turn approved of the following statement of Viscount Simon L.C. in Charles Osenton & Co. v. Johnston, [1942] A.C. 130 at 138, [1941] 2 All E.R. 245 (H.L.):

The law as to the reversal by a court of appeal of an order made by the judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified.

That was essentially the standard adopted by this court in Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561, [1979] 3 W.W.R. 676, 96 D.L.R. (3d) 14, 26 N.R. 364 [Sask.], where Beetz J. said, at p. 588:

Second, in declining to evaluate, difficult as it may have been, whether or not the failure to render natural justice could be cured in the appeal, the learned trial judge refused to take into consideration a major element for the determination of the case, thereby failing to exercise his discretion on relevant grounds and giving no choice to the Court of Appeal but to intervene. [Emphasis by underlining added.]

[111]     Since then, the Oldman River standard has been applied in many appellate cases: see Penner v. Niagara (Regional Police Services Board) 2013 SCC 19 at paras. 70 and 27; Mining Watch Canada v. Canada (Minister of Fisheries and Oceans) 2010 SCC 2 at paras. 434; Reza v. Canada 1994 CanLII 91 (SCC), [1994] 2 S.C.R. 394 at 404; Kish (Litigation Guardian of) v. Sobchak 2016 BCCA 65 at paras. 334; Tyson Creek Hydro Corp. v. Kerr Wood Leidal Associates Ltd. 2014 BCCA 17; Wenngatz v. 371431 Alberta Ltd. 2013 BCCA 225 at para. 9; Cervo v. Raimondo 2006 CanLII 37119 (ON CA), [2006] 277 D.L.R. (4th) 95 (Ont. C.A.) at para. 57; Pecore v. Pecore (2005) 2005 CanLII 31576 (ON CA), 17 R.F.L. (6th) 261 at para. 35, aff’d 2007 SCC 17; Ayangma v. Canada Health Infoway 2017 PECA 13 at para. 15; Ellph.com Solutions Inc. v. Aliant Inc. 2012 NSCA 89 at paras. 2751. In the latter case, Saunders J.A. for the Court observed:

Considerations of fairness will always require an assessment and balancing of competing interests. The decision maker will decide the weight or importance to be assigned to those interests. It is not for us to second guess that discretion-driven adjudicative function or interfere with that process simply because we might have assigned a different level of importance had we heard the motion in first instance. To do so would reduce the notion of deference to hollow, meaningless rhetoric. [At para. 51.]

I propose to proceed, then, on the assumption that Oldman River remains good law and connotes a deferential standard.

“Broad Assertions” of Corruption

[112]     I have already concluded that the chambers judge did not err in admitting, for limited purposes, the secondary reports of organizations such as the UN and EASO concerning the government and the legal system of Eritrea. Nevsun emphasizes, however, this court’s statement in Garcia that “Broad assertions of corruption should be given limited weight, whereas detailed and cogent evidence of corruption should attract significant weight” in the forum conveniens analysis. (At para. 125.) Garcia (CA) was of course not available to the chambers judge and Nevsun contends that in the case at bar, the judge’s conclusions regarding “real risk” were influenced by “broad assertions and unsubstantiated allegations”.

[113]     Of course it is true that the more generalized evidence is, the less probative it will be of particular claims in a court of law. Secondary reports, no matter how well-crafted, could not be relied upon as proof at trial of any particular allegation of torture, abuse or forced labour. But that was not the purpose for which they were admitted. They were admitted “for the limited purpose of providing a social, historical and contextual framework to the first-hand allegations of properly attributed hearsay … and the opinion evidence of the former judges and lawyers” relating to the forum conveniens analysis. (At para. 138.) Again, they were not admitted for purposes of the trial and were regarded only as corroborative of the “detailed and specific” evidence from various witnesses who do have first-hand experience in Eritrea.

Nature of the Case and the Difficulty of a British Columbia Trial

[114]     Under this rubric, Nevsun contends that the chambers judge gave “undue weight” to the risk of an unfair trial in Eritrea and that he failed to give “adequate, or any, consideration to the fundamental nature of the dispute”. In the words of Nevsun’s factum:

The chambers judge gave no consideration to the nature of the case, which is unlike anything that has previously been advanced in a Canadian court. Substantially all of the claims against Nevsun are based on derivative or secondary liability for the alleged acts of the State of Eritrea, including the Eritrean military. These entities and individuals would enjoy state immunity if the plaintiffs’ claims were made against them directly in this province. A British Columbia court could never entertain an action against those whose conduct is the foundation of the plaintiffs’ claims. Just as importantly, these actors could never be compelled by a British Columbia court to appear in this province or to give evidence.

The chambers judge dismissed Nevsun’s objections by reasoning that British Columbia courts are capable of managing complex litigation and can exercise various “trial management powers”. With respect, the competence of our courts does not solve the problems presented by an action that concerns events that allegedly occurred over many years in a state that is thousands of miles away. Potential witnesses number in the hundreds and most, if not all, are located in Eritrea or other foreign countries. A British Columbia court cannot order them to give evidence. [At paras. 150–51.]

[115]     On a more general level, Mr. Andrews again objects that if the Supreme Court of British Columbia were to take jurisdiction, it would find itself “sitting in judgment” over the conduct of a faraway country that is entitled to the respect of a sovereign nation under international law. The trial judge would be faced with “broad swathes” of evidence about Eritrea’s internal affairs, even though Eritrea itself and its officials have the protection of state immunity. Counsel suggests that authorities such as Garcia, Habib, and Belhaj should be confined to their factual underpinnings and that in the final analysis, the broad and important principles of comity, international order and efficiency must prevail over the other forum conveniens factors. The high international norms against slavery, forced labour and torture do not, he submits, trump those principles.

[116]     In response to Mr. Andrews’ concerns, counsel for the plaintiffs invited us (by implication at least) to answer the ‘clarion call’ sounded in other jurisdictions in favour of the recognition and enforcement of jus cogens by domestic courts beginning with the U.S. Supreme Court’s decision in Underhill and taken up more recently by the Australian High Court in Habib. There, Chief Justice Black referred to Doe 1 v. Unocal Corp. 395 F. 3d 932 (9th Cir. 2002), in which certain residents of Myanmar sued in the U.S. under the Alien Tort Claims Act (28 USC §1350) for torts committed “in violation of the law of nations.” The Court ruled that the defendant was not protected by the act of state doctrine and that the wrongs alleged (which included murder, torture, rape and slavery) were violations of jus cogens “and thus involved norms binding on all nations whether or not they agree. By definition, all jus cogens violations are internationally denounced.” (At para. 95.) If adopted in Canada, such an approach would obviously tend to weaken the defendant’s objections in this case based on comity and international order.

[117]     As for the practical problems referred to by the chambers judge at para. 242 et seq., there is no doubt they are very significant indeed. But these difficulties were fully appreciated by the chambers judge: see paras. 234 and 245 of his reasons. On the other hand, he noted factors strongly militating against Eritrea as the forum conveniens, including:

(a)  the plaintiffs may be considered to be traitors in Eritrea, and practically precluded from returning to that country. In any event they will not do so. There is a real risk that witnesses will not come forward to testify out of fear and that judges would be fearful to rule in the case. The former judges have given clear accounts of witnesses being intimidated, arrested and in some cases beaten as a result of their testimony in court;

(b)  the evidence of Prof. Andemariam is that the military refuses to cooperate in the judicial process and will not make its personnel available to testify;

(e)  Nevsun’s own expert, Prof. Andemariam, has recently commented on “the problems and inconsistencies in the admission, analysis and weighing of evidence” in Eritrean courts in the absence of comprehensive evidence legislation. In particular, he notes that the law of evidence serves to secure fairness in trials. The Eritrean legal system exists in a legislative vacuum regarding comprehensive evidence law. This result in Eritrean courts being unable to confidently answer questions of evidence and, consequently, discrepancies in rulings and judgments in similar cases;

(f)  there are additional difficulties raised by Prof. Andemariam including the fact there is no legal framework for the admission of foreign documents or testimony into evidence. It appears the practice is to require authentication of evidence by Eritrean embassies or consular offices. [At para. 247.]

[118]     Having set out the conflicting factors, the judge was faced with a stark choice: the expense, inconvenience and practical difficulties of mounting a trial in British Columbia concerning conduct in a faraway and inaccessible country, as against the prospects of no trial at all, or a trial in an Eritrean court, possibly presided over by a functionary with no real independence from the state (which is implicated in the case) and in a legal system that would appear to be actuated largely by the wishes of the President and his military supporters (also implicated). Underlying all of these was the fact that grave abuses of human rights are alleged a fact that distinguishes the case from Bil’ln (Village Council) and Ferrexpo. As the Court of Appeal observed in Belhaj, the cost, inconvenience and expense that would be involved “must be looked at in the light of the grave allegations that [the plaintiffs’] claims comprehend.” (At para. 159.)

[119]     At the end of the day, the judge’s dilemma fell to be decided with reference to onus. The onus was on Nevsun to establish that it would be fairer and more efficient to depart from the “normal state of affairs that jurisdiction should be exercised in the jurisdiction having territorial jurisdiction and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules.” (Club Resorts, at para. 109.) In my respectful view, the chambers judge did not err in principle, misapprehend or fail to take into account material evidence or reach an unreasonable decision in concluding that Nevsun had not met this onus, nor in concluding that a “real risk” of an unfair trial, should it occur in Eritrea, had been shown. (At paras. 2956.) Nor did the court below fail to give weight, or sufficient weight, to the difficulties of a trial in British Columbia. Those difficulties are indeed substantial; but they do not go to the root of the fairness of the trial process or the independence of the very courts in which the plaintiffs would have to press their case in Eritrea.

[120]     In my opinion, Abrioux J. was right to prefer the jurisdiction in which the plaintiffs can assert their claims in a fair and impartial proceeding, over a jurisdiction in which justice seems unlikely to be done. In this regard, I respectfully adopt the comment of Lord Bingham, M.R. (as he then was) in Connelly v. RTZ Corp. plc (No. 2) [1997] ILPr 643:

But faced with a stark choice between one jurisdiction, albeit not the most appropriate in which there could in fact be a trial, and another jurisdiction, the most appropriate in which there never could, in my judgment, the interests of justice would tend to weigh, and weigh strongly in favour of that forum in which the plaintiff could assert his rights. [At 651; quoted with approval on appeal at [1997] UKHL 30 at para. 8.]

I would not accede to this aspect of the third ground of appeal.

Outdated Evidence?

[121]     Nor do I agree that the plaintiffs’ evidence regarding Eritrea’s legal system was outdated as Nevsun suggests. As the judge noted, Mr. Ghebremichael had been in Eritrea until late 2014, having been expelled from the judiciary in 2007. His evidence concerning the legal system was apparently based on his knowledge until the time of his departure. As against his evidence, the judge correctly observed various uncertainties regarding Prof. Andemariam’s evidence (see paras. 279 and 280), including the fact that he is apparently still providing “constant advice” to the government. The Court found support in the evidence for the plaintiffs’ expressed fears that they cannot return to Eritrea and obtain a fair trial against Nevsun. The defendant countered on appeal that it is just as unlikely that the plaintiffs or any Eritrean witness would be able to enter Canada, since Immigration officials would likely deny visas to such persons. However, no evidence was given in support of this argument and it was not suggested that judicial notice could be taken on the point.

[122]     In the result, I would dismiss Nevsun’s appeal from the judge’s order dismissing the Forum Application.

The Act of State Doctrine and its Exceptions

[123]     With some trepidation, I come next to the act of state doctrine if such it be. Although one might have expected that the recent decision of the U.K. Supreme Court in Belhaj would resolve some, if not all, uncertainties relating to ‘act of state’, the Court split 2:2:2:1. As a result, questions continue concerning the nature and scope of the doctrine in English law. The situation in Canada is more uncertain, given that act of state has never been directly applied by a Canadian court. As we have already seen, this court in United Mexican States appears to have acknowledged the doctrine as having become part of Canadian law, but the comments relied on (see paras. 4850) were obiter. Mr. Andrews on behalf of Nevsun therefore took pains to draw our attention to earlier cases such as Duke of Brunswick v. King of Hanover (1848) 2 HLC 1, 9 E.R. 993, in which the Lord Chancellor observed that “no court in this country can entertain questions to bring Sovereigns to account for their acts done in their Sovereign capacities abroad.” This and other cases indicate that some form of the doctrine, although not called so by name, was part of the English common law accepted into the law of this province in 1858 by what is now s. 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253.

The ‘Plain and Obvious’ Test

[124]     Just as the parties in the case at bar disagree concerning the nature of the plaintiffs’ claims, they also differ on the nature of act of state and of the primary issue raised by the defendant’s Act of State Application. Nevsun asserts that the doctrine is a rule of subject-matter competence, a “prohibition on adjudication” the purpose of which is to prevent a challenge to the acts of a foreign sovereign “at the outset, as a matter of immunity rationae materiae.” (Citing Yukos Capital Sarl v. OJSC Rosneft Oil Co. (No 2) [2012] EWCA Civ 855 at para. 109.) Thus it says the chambers judge erred in applying the “plain and obvious” standard to an application based on a jurisdictional rule.

[125]     On this point, counsel referred to the decision of the Ontario Court of Appeal in Schreiber v. Canada (Attorney General) (2001) 2001 CanLII 23999 (ON CA), 152 C.C.C. (3d) 205, aff’d 2002 SCC 62. In the Court of Appeal, Doherty J.A. stated that the “plain and obvious” test is not applied to a claim of sovereign immunity – a doctrine ratione personae that is analogous to act of state. In his analysis:

[The] claim challenges the obligation of the foreign state to submit to the court’s jurisdiction. Until that challenge is decided, the action cannot proceed. Unlike a court faced with an allegation that a claim does not disclose a cause of action, a court faced with an immunity claim cannot withhold its decision until the end of the trial. There can be no trial until the court decides whether the foreign state is subject to the court’s jurisdiction.

.           .           .

If, on a motion to dismiss based on a sovereign immunity claim, a court were to conclude that it was not “plain and obvious” that the claim should succeed and direct that the matter proceed to trial, the foreign state would be in the untenable position of either not participating in the trial and risking an adverse result, or participating in the trial and thereby losing its immunity claim. The scheme set out in the State Immunity Act is workable only if immunity claims are decided on their merits before any further step is taken in the action….

.           .           .

Whatever application the “plain and obvious” approach may have to motions to dismiss based on a lack of jurisdiction not founded on a claim of sovereign immunity, it cannot be applied to a claim based on sovereign immunity. [At paras. 16, 18 and 20; emphasis added.]

[126]     On appeal, the Supreme Court of Canada did not disagree with Doherty J.A, but neither did it fully confirm his ruling on the point. LeBel J. for the Court stated:

The defence of sovereign immunity can be raised by a defendant state to be determined in a preliminary motion, as a matter for summary judgment or at trial. As noted by Doherty J.A., a number of sovereign immunity cases before the Court of Appeal for Ontario have been determined on a preliminary motion on the premise that the motion judge was obligated to determine the immunity claim on its merits…. However, even if a defendant state fails in its bid to dismiss the action at a preliminary motion, it is not precluded from raising the immunity defence sometime during the trial, as the case develops. [At para. 18.]

(See also Bombardier Inc. v. AS Estonian Air 2014 ONCA 41 at paras. 57.)

[127]     Counsel for Nevsun emphasizes that in both Belhaj and Habib, the applicability of act of state was decided on the pleadings, “although some evidence appears to be admissible.” In this regard, I note Lord Sumption’s comment at para. 267 of Belhaj (UKSC) that:

Whenever the foreign act of state doctrine is invoked, the court must decide whether it applies. If it cannot do it by reference to the pleadings or admissions, it must examine the evidence. This may involve examining what the state has done, for example, where there is an issue as to its responsibility for the acts of its alleged agents.… The need to establish a factual foundation for the application of the doctrine must equally apply where the issue concerns not the character of the act but the availability of an exception. [At para. 267.]

See also Lord Mance at para. 2; and AK Investment CJSC v. Kyrgyz Mobil Tel Ltd. [2011] UKPC 7, at para. 81, citing Hutton (E.F.) & Co. (London) Ltd. v. Mofarrij [1989] 1 WLR 488 (C.A.) at 495 and Chellaram v. Chellaram (No. 2) [2002] EWHC 632 (Ch.) at para. 35.)

[128]     The plaintiffs respond that since it was Nevsun itself that brought the Act of State Application under (inter alia) Rule 9-5, it should not now be heard to say that the chambers judge erred in applying the “plain and obvious” test. In their submission, act of state is neither a matter of subject-matter jurisdiction nor a “rule of general application”. They note that it has been described in many different ways, including as a “doctrine of judicial prudence or deference, judicial restraint, judicial abstention, issue preclusion, conflicts of law and choice of law”. (Citing Matthew Alderton, “The Act of State Doctrine: Questions of Validity and Abstention from ‘Underhill to Habib’” (2011) 12 Melb. J. Int’l L 1, at 2.)

[129]     Without determining whether the doctrine as now understood is truly jurisdictional (a phrase that has its own unique implications in Canadian law) or something less hard-edged, I respectfully agree with the notion that when act of state is invoked, including at the pleadings stage, the court should generally decide whether it applies as opposed to whether it might possibly apply. Thus the chambers judge was in error, in my respectful opinion, to the extent that he decided the issue on the “plain and obvious” test associated with Rule 9-5. The reasoning of the Court of Appeal in Schreiber is equally applicable to immunity ratione materiae (and its limitations or “exceptions”) as it is to immunity ratione personae. It would be extremely inefficient to subject a sovereign state to trial and then to decide at the end of the process that the court was not competent to adjudicate the claim. Having said this, I acknowledge that there may be, and have been, cases in which the issue does not arise until trial – in which event, it is decided then. In this regard I note that at para. 267 of Belhaj, Lord Sumption commented that in Underhill, the act of state application had come before the U.S. Supreme Court on appeal from a trial court which had made findings of fact. The Supreme Court decided the issue, his Lordship observed, “without any suggestion that in making them the lower court had been ‘sitting in judgment’ on [the government of Venezuela].” Whether on an interlocutory application or at trial, however, the question should be whether act of state applies not whether it might apply.

The Evolution of Act of State

[130]     The principle, or doctrine, of act of state has been evolving in England over many decades from a series of diverse judicial decisions concerned with the justiciability of the acts of sovereign nations. As will be seen below, the U.K. Supreme Court reviewed many of these decisions at great length in Belhaj. Before turning to that case, however, it may be useful to set the stage by referring to Yukos. It provides an overview of the leading cases that dealt with aspects of what became the doctrine of act of state over the late 20th century.

[131]     In Yukos, certain decisions rendered by courts in Russia were challenged in the U.K. as being the result of a judicial process that was not impartial or independent. The English Court of Appeal ruled that judicial acts did not constitute acts of state for purposes of the doctrine. (At para. 73.) In the course of his reasons for the Court, Rix L.J. adverted to Blad v. Bamfield and the decisions of the U.S. Supreme Court in Underhill and Oetjen v. Central Leather Co. (1918) 246 US 297 at 2456. (See paras. 401.) The latter decisions had, he observed, been applied by the Court of Appeal in inter alia, Princess Paley Olga v. Weisz [1929] 1 KB 718, in which the act of state doctrine was put this way:

This court will not inquire into the legality of acts done by a foreign government against its own subjects in respect of property situate in its own territory. [At 736; emphasis added.]

The Court in Yukos suggested at para. 42 that the reference to “its own subjects” might have to be reassessed today “as matters concerned with private rights and private international law principles rather than sovereign authority”. (Referring to Kuwait Airways Corp. v. Iraqi Airways Co. [2000] EWCA Civ 284 at paras. 3212.)

[132]     Rix L.J. next referred to Buck to illustrate the analogy between the act of state doctrine (often called subject-matter immunity) and state immunity; and then to Nissan v. Attorney General [1970] AC 179 (H.L.). There, Lord Pearson saw act of state as an “exceptional” principle concerned with relations between states:

As to the alleged act of state, it is necessary to consider what is meant by the expression “act of state”, even if it is not expedient to attempt a definition. It is an exercise of sovereign power. Obvious examples are making war and peace, making treaties with foreign sovereigns, and annexations and cessions of territory. Apart from these obvious examples, an act of state must be something exceptional. Any ordinary governmental act is cognisable by an ordinary court of law (municipal not international): if a subject alleges that the governmental act was wrongful and claims damages or other relief in respect of it, his claim will be entertained and heard and determined by the court. An act of state is something not cognisable by the court: if a claim is made in respect of it, the court will have to ascertain the facts but if it then appears that the act complained of was an act of state the court must refuse to adjudicate upon the claim. In such a case the court does not come to any decision as to the legality or illegality, or the rightness of wrongness, of the act complained of; the decision is that because it was an act of state the court has no jurisdiction to entertain a claim in respect of it. This is a very unusual situation and strong evidence is required to prove that it exists in a particular case. [At 237; emphasis added.]

[133]     The Court in Yukos next noted the seminal decision of the Judicial Committee in Buttes Gas and Oil Co. v. Hammer (No 3) [1982] AC 888, from which (Rix L.J. suggested) the modern law of foreign act of state took its impetus. (At para. 45.) Buttes Gas was a defamation action which arose in the context of two conflicting oil concessions in the Arabian Gulf. The defendants took the position that the action raised issues that were non-justiciable by an English court and should therefore be stayed. In his much-quoted reasons, Lord Wilberforce drew from the existing authorities “at least two principles” one specific, a “territorial” act of state principle; the other general, the principle of non-justiciability. The latter was held to apply. Rix L.J. in Yukos recounted:

Lord Wilberforce expressed each doctrine in the following terms. Of the former he said, at p 931:

A second version of ‘act of state’ consists of those cases which are concerned with the applicability of foreign municipal legislation within its own territory, and with the examinability of such legislation often, but not invariably, arising in cases of confiscation of property. Mr. Littman gave us a valuable analysis of such cases … suggesting that these are cases within the area of the conflict of laws, concerned essentially with the choice of the proper law to be applied.”

In that context issues might still arise as to whether effect would be given in England to the foreign law or act, if it was contrary to public policy or international law. It appears that Lord Wilberforce was here perhaps seeking to narrow the territorial principle, for instance by referring to “legislation”. However, this version of the doctrine did not apply because what the Buttes Gas case was concerned about was not so much a foreign municipal law as “an act or acts operating in the area of transactions between states”: p 931.

Lord Wilberforce therefore turned to a wider and more general principle, which on our current understanding is not so much a separate principle as a more general and fundamental principle, the principle of non-justiciability. Thus he said, at p 931:

“So I think that the essential question is whether, apart from such particular rules as I have discussed … there exists in English law a more general principle that the courts will not adjudicate upon the transactions of foreign sovereign states. Though I would prefer to avoid argument on terminology, it seems desirable to consider this principle, if existing, not as a variety of ‘act of state’ but one for judicial restraint or abstention.” …

Lord Wilberforce considered some of the issues which would arise in that case, if it was allowed to proceed, at p 937. He emphasised first, the question of the boundary dispute between four nations; and secondly, that the dispossession of any rights depended on a series of inter-state transactions, an examination of the motives of sovereigns, and questions of unlawfulness under international law. He then concluded with this well known passage, at p 938:

“It would not be difficult to elaborate on these considerations, or to perceive other important inter-state issues and/or issues of international law which would face the court. They have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass. Leaving aside all possibility of embarrassment in our foreign relations (which it can be said not to have been drawn to the attention of the court by the executive) there are to follow the Fifth Circuit Court of Appeals no judicial or manageable standards by which to judge these issues, or to adopt another phrase (from a passage not quoted), the court would be in a judicial no-man’s land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were ‘unlawful’ under international law.” [At paras. 478; 50; emphasis added.]

[134]     Carrying on with his review of the cases, Rix L.J. in Yukos noted Pinochet (No 3), in which Lord Millett discussed state immunity and act of state, observing in another much-quoted passage:

Immunity ratione materiae is very different. This is a subject matter immunity. It operates to prevent the official and governmental acts of one state from being called into question in proceedings before the courts of another, and only incidentally confers immunity on the individual. It is therefore a narrower immunity but it is more widely available. It is available to former heads of state and heads of diplomatic missions, and any one whose conduct in the exercise of the authority of the state is afterwards called into question, whether he acted as head of government, government minister, military commander or chief of police, or subordinate public official. The immunity is the same whatever the rank of the office-holder. This too is common ground. It is an immunity from the civil and criminal jurisdiction of foreign national courts but only in respect of governmental or official acts. The exercise of authority by the military and security forces of the state is the paradigm example of such conduct. The immunity finds its rationale in the equality of sovereign states and the doctrine of non-interference in the internal affairs of other states: see Duke of Brunswick v. King of Hanover (1848) 2 HL Cas I; Hatch v. Baez, 7 Hun 596; Underhill v. Hernandez (1897) 168 US 250. These hold that the courts of one state cannot sit in judgment on the sovereign acts of another

Given its scope and rationale, it is closely similar to and may be indistinguishable from aspects of the Anglo-American act of state doctrine. As I understand the difference between them, state immunity is a creature of international law and operates as a plea in bar to the jurisdiction of the national court, whereas the act of state doctrine is a rule of domestic law which holds the national court incompetent to adjudicate upon the lawfulness of the sovereign acts of a foreign state. [At 269, quoted at para. 53 of Yukos; emphasis added.]

Also notable are the comments of Lord Phillips in Pinochet (No 3):

There would seem to be two explanations for immunity ratione materiae. The first is that to sue an individual in respect of the conduct of the state’s business is, indirectly, to sue the state. The state would be obliged to meet any award of damage made against the individual. This reasoning has no application to criminal proceedings. The second explanation for the immunity is the principle that it is contrary to international law for one state to adjudicate upon the internal affairs of another state. Where a state or state official is impleaded, this principle applies as part of the explanation for immunity. Where a state is not directly or indirectly impleaded in the litigation, so that no issue of state immunity as such arises, the English and American courts have none the less, as a matter of judicial restraint, held themselves not competent to entertain litigation that turns on the validity of the public acts of a foreign state, applying what has become known as the act of state doctrine. [At 286; quoted at para. 54 of Yukos; emphasis added.]

[135]     In Pinochet (No 3) itself, a majority in the House of Lords held that the former head of state of Chile, Mr. Pinochet, was not immune from liability for torture and conspiracy to torture allegedly committed after December 8, 1988. On that date, the U.K. ratified the Convention Against Torture. (Chile and Spain had done so already.) Mr. Pinochet was thus subject to arrest under an international warrant issued by Spain. Chile’s objections, based on both state immunity and act of state, to the arrest and proposed trial of Mr. Pinochet in Spain were rejected.

[136]     One of the points of disagreement among their Lordships arose from the fact that the Convention Against Torture refers only to conduct of a “public official or other person acting in an official capacity.” Mr. Pinochet argued that the alleged acts had been “carried out for the purposes of protecting the state and advancing its interests.” (Only if they were “official” acts could he invoke state immunity or act of state.) The six law lords constituting the majority ruled that no immunity was available to Mr. Pinochet. They arrived at this conclusion by different paths and gave different degrees of attention to the act of state doctrine and state immunity respectively. Some of the law lords questioned whether Mr. Pinochet’s “alleged organisation of state torture … would constitute an act committed … as part of his official functions as head of state.” (At 203.) Lord Browne-Wilkinson, for example, asked, “How can it be for international law purposes an official function to do something which international law itself prohibits and criminalises?” (At 205.) Lord Hutton expressed the view that the commission of acts of torture was not a “function of the head of state of Chile under international law” and thus not protected by immunity. (At 262.) Lord Hope reasoned that the Convention Against Torture precluded any state from invoking immunity ratione materiae in respect of “allegations of systematic or widespread torture” committed after the relevant date. (At 247.) And Lord Millett observed:

The offence is one which could only be committed in circumstances which would normally give rise to the immunity. The international community had created an offence for which immunity ratione materiae could not possibly be available. International law cannot be supposed to have established a crime having the character of a jus cogens and at the same time to have provided an immunity which is co-existent with the obligation it seeks to impose. [At 278; emphasis added.]

(See also Jones v. Ministry of Interior of the Kingdom of Saudi Arabia [2006] UKHL 26, where Lord Bingham commented that the “essential ratio” of Pinochet (No 3) was that “international law could not without absurdity require criminal jurisdiction to be assumed and exercised where the Torture Convention conditions were satisfied and, at the same time, require state immunity to be granted to those properly charged.” (At 19.).)

[137]     The Court in Yukos next referred to Kuwait Airways, in which different definitions of act of state were offered by Lord Nicholls (at paras. 246), Lord Steyn at para. 112 and Lord Hope. The latter stated:

There is no doubt as to the general effect of the rule which is known as the act of state rule. It applies to the legislative or other governmental acts of a recognised foreign state or government within the limits of its own territory. The English courts will not adjudicate upon, or call into question, any such acts. They may be pleaded and relied upon by way of defence in this jurisdiction without being subjected to that kind of judicial scrutiny. This rule gives effect to a policy of “judicial restraint or abstention”: see Buttes Gas…. As the title to moveable property is determined by the lex situs, a transfer of property effected by or under foreign legislation in the country where the property is situated will, as a general rule, be treated as effective by English law for all relevant purposes. [At para. 135; emphasis added.]

[138]     Looking back, Rix L.J. suggested in Yukos that the foregoing cases had not confirmed Lord Wilberforce’s principle of “non-justiciability” in Buttes Gas as something separate from the act of state principle, “but rather has to a large extent subsumed it as the paradigm restatement of that principle.” Rix L.J. continued:

It would seem that, generally speaking, the doctrine is confined to acts of state within the territory of the sovereign, but in special and perhaps exceptional circumstances, such as in the Buttes Gas case itself, may even go beyond territorial boundaries and for that very reason give rise to issues which have to be recognised as non-justiciable. The various formulations of the paradigm principle are apparently wide, and prevent adjudication on the validity, legality, lawfulness, acceptability or motives of state actors. It is a form of immunity ratione materiae closely connected with analogous doctrines of sovereign immunity and, although a domestic doctrine of English (and American) law, is founded on analogous concepts of international law, both public and private, and of the comity of nations. It has been applied in a wide variety of situations, but often arises by way of defence or riposte: as where a dispossessed owner sues in respect of his property, the defendant relies on a foreign act of state as altering title to that property, and the claimant is prevented from calling into question the effectiveness of that act of state. [At para. 66; emphasis added.]

[139]     The Court then proceeded to consider some of the limitations (a term it preferred to “exceptions”) to the doctrine, the third of which was in respect of judicial acts, which did not fall within the scope of the doctrine. (At para. 73.) As well, the Court examined the commercial activity exception (beginning at para. 92) and the Kirkpatrick limitation, beginning at para. 95. I will return to these below, but I note here Rix L.J.’s well-known description of act of state as something that is increasingly defined “like a silhouette, by its limitations, rather than … as occupying the whole ground save to the extent that an exception can be imposed”. That, he suggested, would explain why it has become “commonplace to adjudicate on or call into question the acts of a foreign state in relation to matters of international convention….” He added:

It also has to be remembered that the doctrine was first developed in an era which predated the existence of modern international human rights law. The idea that the rights of a state might be curtailed by its obligations in the field of human rights would have seemed somewhat strange in that era. That is perhaps why our courts have sometimes struggled, albeit ultimately successfully, to give effective support to their abhorrence of the persecutions of the Nazi era…. [At para. 115.]

Belhaj (CA)

[140]     We come, then, to Belhaj, which concerned allegations of complicity by U.K. officials, including the Foreign Minister, with Libya in the illegal deportation, abduction, kidnapping and removal of the plaintiff to Libya in 2004. The plaintiff alleged the torts of false imprisonment, trespass to the person, conspiracy to injure and use unlawful means, negligence and misfeasance in public office. As noted by the Court of Appeal at paras. 7 and 89, the hearings below and on appeal were conducted on the basis of the pleadings, which were at that point “no more than allegations.” The court of first instance had found that act of state operated to bar the claims, and struck most of them out except for certain claims in negligence.

[141]     In the Court of Appeal, Lloyd Jones L.J. for the Court carried out a review of the cases I have referred to and many more, and at para. 53 cited with approval the description of act of state provided in Yukos. (See the passage quoted at para. 138 above.) The Court saw the central issue in Belhaj as whether the public policy exception to act of state should be applied in a case in which, if jurisdiction were exercised, the court would be “required to conduct a legal factual investigation into the validity of the conduct of a foreign state.” (At para. 114.) The Court answered the question in the affirmative, in light of the “compelling” public policy reasons to exercise jurisdiction and permit the action to proceed. These reasons included the “fundamental change” that has occurred in public international law (see para. 1 above); the fact that particularly grave violations of human rights were being asserted; the fact that the defendants were U.K. officials and thus not entitled to any immunity before the (English) court; and the fact that unless the English courts were able to exercise jurisdiction in this case, “these very grave allegations against the executive will never be subject to judicial investigation.”

Belhaj (UKSC)

[142]     I do not propose to attempt a full description of the three learned judgments given on the final appeal in Belhaj (UKSC) by Lords Mance, Neuberger and Sumption. In their factum, the plaintiffs summarize the basic results of the judgments as follows:

i.  Lord Mance “disaggregated” the act of state doctrine into three (or four) discrete rules. He concluded that none of these applied and if they did, he would have invoked the public policy limitation.

ii.  Lord Neuberger (joined by Lord Wilson) also set out a three-rule formulation of the doctrine, but his rules were different from those suggested by Lord Mance. Lord Neuberger concluded that none of them applied and in any event, he would have invoked the public policy limitation.

iii.  Lady Hale and Lord Clarke agreed with Lord Neuberger that act of state did not apply and viewed the reasons of Lord Mance as essentially the same as those of Lord Neuberger on that point. They declined to express a view on the public policy limitation.

iv.  Lord Sumption, joined by Lord Hughes, set out a more unified formulation of the doctrine, concluding first that act of state applied, but that in the end, the public policy limitation was engaged.

In the result, five of the seven members of the Court were of the view that act of state did not apply; Lords Sumption and Hughes disagreed. Lord Mance expressed a preference for limiting the scope of his third rule, rather than grafting a public policy limitation onto it. However, in the end, he said nothing turned on this difference; what mattered was “how one defines the ambit [of the third rule] or any exceptions.” (See para. 89.) Thus, five of the judges, including Lord Sumption, were of the view that the public policy limitation would also apply; two expressed no opinion on that point. (See para. 174.) The opinion of Lord Neuberger may be loosely regarded as the majority opinion, although it is Lord Sumption’s decision on which Nevsun largely relies in its arguments on this appeal.

Lord Neuberger’s Analysis

[143]     At the outset of his reasons, Lord Neuberger provided this “summary” of act of state:

In summary terms, the Doctrine amounts to this, that the courts of the United Kingdom will not readily adjudicate upon the lawfulness or validity of sovereign acts of foreign states, and it applies to claims which, while not made against the foreign state concerned, involve an allegation that a foreign state has acted unlawfully. Insofar as it is relied on in these proceedings, the Doctrine is purely one of domestic common law, and it has all the advantages and disadvantages of a principle that has been developed on a case by case basis by judges over the centuries. Thus, while it is pragmatic and adaptable to changing norms … it is a principle whose precise scope is not always easy to identify. [At para. 118; emphasis added.]

His Lordship emphasized that in many of the older cases, the courts that had ruled on whether a claim was justiciable by an English court had not used the expression “act of state”, at least as a term of art. Thus “[m]any of the judgments do not distinguish between what are now treated as three separate doctrines, namely Crown act of state, foreign act of state, and state immunity.” (At para. 119.)

[144]     Lord Neuberger suggested four “possible rules [my emphasis] which have been treated as aspects of the doctrine” of act of state although, he said, it could be argued that the first rule was not part of the doctrine at all. The first three rules were as follows:

The first rule is that the courts of this country will recognise, and will not question, the effect of a foreign state’s legislation or other laws in relation to any acts which take place or take effect within the territory of that state.

The second rule is that the courts of this country will recognise, and will not question, the effect of an act of a foreign state’s executive in relation to any acts which take place or take effect within the territory of that state.

The third rule has more than one component, that each component involves issues which are inappropriate for the courts of the United Kingdom to resolve because they involve a challenge to the lawfulness of the act of a foreign state which is of such a nature that a municipal judge cannot or ought not rule on it. … This third rule is justified on the ground that domestic courts should not normally determine issues which are only really appropriate for diplomatic or similar channels [At paras. 12123; emphasis added.]

[145]     As examples of situations coming within the third rule, his Lordship referred to the interpretation or ‘questioning’ of dealings between foreign states, such as “making war and peace, making treaties with foreign sovereigns and annexations and cessions of territory.” (Citing Nissan at 237.) No one contended that this rule might be engaged in the case at bar. The same is true of the possible fourth rule, already suggested in Yukos at para. 65, that “the courts will not investigate acts of a foreign state where such an investigation would embarrass the government of our own country: that this doctrine only arises as a result of a communication from our own Foreign Office”.

[146]     Lord Neuberger recounted several cases involving issues of property or title to property in which the first two rules (which he described as general principles of international law at para. 150) had been applied. (See paras. 126128.) It was clear that the first rule applies to acts in respect of property situated in the foreign state where the acts are lawful in that state. The second rule was not as clear: it had, he noted, significant judicial support but only in relation to property. (At para. 136.) Where the executive acts at issue are unlawful according to the foreign law, he was not convinced they should not be treated as unlawful by an English court. (Citing Dicey, Morrison and CollinsThe Conflict of Laws (15th ed., 2012) at 1380.) On the other hand, he saw some ‘pragmatic attraction’ in the view that an executive act within the foreign state, even if unlawful by that state’s law, should be treated as “effective” in the interests of certainty and clarity, at least to the extent the act relates to property and property rights.

[147]     It was not necessary to resolve this issue, nor whether the second rule applies to executive acts which interfere with property or property rights in the foreign jurisdiction, as property rights were not at issue in the appeal. (At para. 143.)

[148]     Lord Neuberger did acknowledge that it may be appropriate for a court to decide whether a foreign state’s executive action infringes the law of a foreign state where the issue arises only incidentally i.e., “at least where that is not the purpose of the proceedings”. (Citing Buck and Al-Jedda v. Secretary of State for Defence [2010] EWCA Civ 758.) Again, however, he found it unnecessary to go further, given his conclusion that the public policy limitation to act of state applied in any event:

It is well established that the first rule, namely that the effect of a foreign state’s legislation within the territory of that state will not be questioned, is subject to an exception that such legislation will not be recognised if it is inconsistent with what are currently regarded as fundamental principles of public policy see Oppenheimer v. Cattermoleper Lord Cross of Chelsea. This exception also applies where the legislation in question is a serious violation of international law see Kuwait Airways … para 29, per Lord Nicholls of Birkenhead. [At paras. 153; emphasis added.]

He added at para. 154 that the limitation was “ultimately to be judged by domestic rule of law considerations.”

Lord Sumption’s Analysis

[149]     Lord Sumption also wrote lengthy reasons reviewing both state immunity and act of state, seeking a general principle on which the latter is based. He described it as a subject-matter immunity that “proceeds from the same premise as state immunity, namely mutual respect for the equality of sovereign states.” He continued:

it is wholly the creation of the common law. Although international law requires states to respect the immunity of other states from their domestic jurisdiction, it does not require them to apply any particular limitation on their subject matter jurisdiction in litigation to which foreign states are not parties and of which they are not indirectly impleaded. The foreign act of state doctrine is at best permitted by international law. It is not based upon it … [At para. 200; emphasis added.]

He saw act of state as comprising two principles:

“The first can conveniently be called “Crown act of state” and does not arise in the present cases. It is that in an action based on a tort committed abroad, it is in some circumstances a defence that it was done on the orders or with the subsequent approval of the Crown in the course of its relations with a foreign state. The second, commonly called “foreign act of state”, is that the courts will not adjudicate upon the lawfulness or validity of certain sovereign acts of foreign states. For this purpose a sovereign act means the same as it does in the law of state immunity. It is an act done jure imperii, as opposed to a commercial transaction or other act of a private law character. These are distinct principles, although they are based on certain common legal instincts. [At para. 199; emphasis added.]

[150]     At para. 227, he suggested that although it is always possible to “break down the cases into different factual categories, and deconstruct the law into a fissiporous bundle of distinct rules,” it is more productive to distinguish between the decisions according to the underlying principles they are intended to apply. In his analysis, the distinction described by Lord Wilberforce in Buttes Gas between (i) claims concerned with the “application of foreign legislation within [a state’s] own territory and with the examinability of such legislation” and (ii) cases concerned with “transactions of foreign states” was supported by case-law over three centuries. The first, he said, is concerned with the “application to a state of its own municipal law, and the second with the application of international law to that state’s dealings with other states.” At para. 230, he disagreed with the suggestion that “municipal law act of state” (the first type) is confined to legislative or executive expropriations of property or that it should not extend to cases of personal injury or other wrongs against the person. In this regard, he referred with approval to the American cases of Underhill and Hatch, in which act of state had been applied to complaints of personal injury. (At para. 231.)

[151]     Under the heading “Incidental Unlawfulness”, Lord Sumption stated that the doctrine does not apply in either form…

… simply by reason of the fact that the subject-matter may incidentally disclose that a state has acted unlawfully. It applies only where the invalidity or unlawfulness of the state’s sovereign acts is part of the very subject matter of the action in the sense that the issue cannot be resolved without determining it. [At para. 240; emphasis added.]

This was best illustrated, he said, by reference to Kirkpatrick, which had first clearly articulated that “act of state issues only arise when a court must decide that is, when the outcome of the case turns upon the effect of official action by a foreign sovereign.” (The overlap between the ‘incidental’ principle enunciated in Buck and the Kirkpatrick exception is again apparent.) Conversely, act of state is not directed to the “avoidance of embarrassment” on the part of the foreign state, nor is it concerned with incidental illegality. Again in Lord Sumption’s words:

Where an English court makes findings in a deportation case about, say, the use of torture in a foreign jurisdiction it is not concerned with its lawfulness or unlawfulness, either under the law of the foreign jurisdiction or in international law. It is simply applying its own standards to an exercise of its own jurisdiction. [At para. 241.]

[152]     In Belhaj itself, Lord Sumption did not view the unlawfulness of the acts alleged against the foreign states as arising only incidentally. Instead, he said, unlawfulness was essential to the pleaded causes of action because the various civil wrongs alleged were “not said to have been committed directly by the defendants. They were committed by the foreign states. If the conduct of the foreign states was lawful, it cannot be tortious for the defendants to have assisted in their commission.” (At para. 242.)

[153]     In the result, Lord Sumption (with Lord Hughes concurring) were the only members of the Court who found that the act of state doctrine applied or would have applied but for their conclusion on the public policy exception. After a long and learned discussion of the authorities (including Khadr and Habib) dealing with that exception, Lord Sumption found it would be contrary to the “fundamental requirements of justice” to apply act of state to an allegation of “civil liability for complicity in acts of torture for foreign states.” In his analysis, the chief rationale for the doctrine the autonomy of foreign sovereign states could not extend to their involvement in torture, since each state is bound by the Convention Against Torture and other international conventions to renounce torture as an instrument of national or international policy and to participate in its suppression. He continued:

The defendants are not foreign states. Nor are they the agents of foreign states. They are or were at the relevant time officials and departments of the British government. They would have no right of their own to claim immunity in English legal proceedings, whether ratione personae or ratione materiae. On the other hand, they would be protected by state immunity in any other jurisdiction, with the result that unless answerable here they would be in the unique position of being immune everywhere in the world. Their exoneration under the foreign act of state doctrine would serve no interest which it is the purpose of the doctrine to protect. [At para. 262; emphasis added.]

and:

The purpose of the foreign act of state doctrine is to preclude challenges to the legality or validity of the sovereign acts of foreign states. It is not to protect English parties from liability for their role in it. In itself, that would not prevent them from taking incidental advantage of the foreign act of state doctrine. In R (Noor Khan) v Secretary of State for Foreign Affairs, British officials were entitled to take advantage of the doctrine in a case where they were said to have assisted in military action overseas by a foreign sovereign. I think that that decision was correct. But torture is different. It is by definition an act of a public official or a person acting in an official capacity: see article 1 of the Torture Convention. Article 4 of the Convention requires the United Kingdom to criminalise not only torture (as defined) but acts constituting complicity in torture. … Torture is contrary to both a peremptory norm of international law and a fundamental value of domestic law. [At para. 266; emphasis added.]

Nevsun’s Argument re Act of State

[154]     Returning to the case at bar, counsel for Nevsun concentrated on the public policy exception to act of state rather than the doctrine itself. Counsel acknowledged that the public policy limitation applied in Belhaj because of the seriousness of the allegations of kidnapping, arbitrary detention and torture, etc. (which, Nevsun says, were assumed to be true for purposes of the appeal). The same was true of the claims of arbitrary detention and severe mistreatment to which Mr. Belhaj was allegedly subjected. Counsel emphasizes, however, that no Canadian court has gone so far as to recognize “a public policy exception triggered solely by allegations.” Mr. Andrews referred us to Kazemi (which was cited with approval by Lord Sumption at para. 260 of Belhaj). In Kazemi, the Supreme Court of Canada acknowledged the abhorrent nature of torture but at the same time affirmed that state immunity (as codified by the SIA) required the dismissal of the proceedings against Iran, despite public policy arguments. The Court said little, however, about act of state. I will return to Kazemi below in connection with the CIL Application.

[155]     Nevsun also submits that a “clear violation of fundamental human rights protected by international law” is required before the public policy limitation may even be considered, citing Khadr at para. 24. In that instance, such a violation had been established by the decision of the United States Supreme Court in Hamdan v. Rumsfeld 126 S.Ct. 2749 (2006). This made it unnecessary for the Supreme Court of Canada to resolve whether it was appropriate to pronounce on the legality of the “process” under which Mr. Khadr had been held at Guantanamo Bay and in which Canadian officials had participated. (At para. 21.)

[156]     In Nevsun’s submission, no “clear violation” of jus cogens has been shown or recognized at this stage of the case at bar. (This would of course be one of the purposes of a trial.) Nevsun distinguishes this case from Belhaj, which was concerned with the “foreign policy actions” of U.K. officials (who were subject to English law in any event) rather than the official acts or legislation of a foreign state. The same is true of Habib, which concerned the complicity of Australian officials in a breach of human rights. Here, in contrast, the plaintiffs are said to have framed their entire claim on the basis that “conduct in Eritrea by the Eritrean state, its military and all of the relevant private actors shall be judged by the Supreme Court of British Columbia applying British Columbian or international law, but certainly not Eritrean law.”[3] Nevsun’s factum goes on to assert:

National courts do not sit in judgment over the acts of other states, purporting to apply their own or international law to the foreign state’s conduct; that rule is not altered by the common law’s “adoption” of rules of customary international law. This is precisely the sort of decision that UK Supreme Court said national courts should not make and invoking public policy does not alter this.

[157]     In response to the argument that it is Nevsun, not Eritrea, whose conduct is before the Court, Nevsun emphasizes that one must look to the substance of the matter and not its form. The doctrine of act of state should not be “eluded by the device of naming a domestic defendant.” (Citing Buck at 7701.) In summary, the defendant submits in its factum:

The entire fabric of plaintiffs’ claims is woven out of attacks on the validity of the state of Eritrea’s conduct. This is precisely the type of claim that engages the act of state doctrine and precludes the operation of the Kirkpatrick exception.

[158]     Last, the defendant submits it is not necessary for the case to be heard by a British Columbia court to ensure that Nevsun will not be immune from suit: it is willing to attorn to proceedings in Eritrea and the prosecution of the plaintiffs’ claims there would not encounter the problem of “one sovereign sitting in judgment over another and did not seek to apply British Columbia or international law.” The plaintiffs could thus pursue their claims “provided those claims were not dependent on Nevsun being vicariously or secondarily liable for acts of the Eritrean state”. This possibility does not, however, admit the existence of the ‘real risk’ of an unfair trial found by the chambers judge.

Plaintiffs’ Argument re Act of State

[159]     For their part, the plaintiffs emphasize that Lords Sumption and Hughes were in the minority in Belhaj in deciding that the act of state doctrine was applicable as a rule of subject-matter jurisdiction. (They would have permitted the claims to proceed, however, on the basis of the public policy exception.) Five judges held that act of state was of more limited scope (recall the three (or four) rules of Lord Neuberger and three different ones proposed by Lord Mance.) The plaintiffs contend that contrary to Nevsun’s “vastly expanded” view of act of state, the U.K. Supreme Court narrowed the potential scope of the doctrine, as did the High Court of Australia in Moti. (See Lord Sumption at para. 247 of Belhaj.) Thus, the plaintiffs submit, if the majority’s reasons in Belhaj are applied, act of state does not apply at all in this case.

[160]     Alternatively, and according to five of the seven judges, the public policy exception applies. The plaintiffs submit that a Canadian court should not reach a different result from that reached in Belhaj but should permit the common law to develop in accordance with contemporary standards.

[161]     Since Lord Neuberger’s reasons constitute the majority opinion, the plaintiffs look to his three rules, the first two of which they characterize as general principles of private international law relating to choice of law. They observe that the first rule (on which Nevsun appears to rely) is predicated on the existence of legislation. Yet Nevsun has not identified any Eritrean law that purports to justify the conduct that forms the basis of the plaintiffs’ claims. In fact, Nevsun interprets Prof. Andemariam’s evidence as indicating that practices such as torture and forced labour have no basis in Eritrean law and are indeed unlawful in Eritrea, which is bound by the Convention Against Torture and other conventions against forced labour.

[162]     A similar argument is made with respect to Lord Neuberger’s second rule, which he suggested might not apply to executive acts that are “not lawful by the laws of the state concerned”: see para. 139. The plaintiffs submit that the NSP as it is being administered is not lawful. In particular, they point out that Prof. Andemariam referred in his opinion to an “informal policy” in Eritrea called the Warsay-Yikealo Development Campaign (“WYDC”). It requires members of the NSP who have completed their initial 18 months to continue to participate in the WYDC until they are demobilized. In his opinion, Prof. Andemariam characterized the WYDC as an “executive announcement” with “no legislation governing it”, and emphasized that it is based on “practice” rather than law. In the plaintiffs’ analysis, this characterization is consistent with that in the UN COI report, which found no evidence of any written document or law relating to the WYDC.

[163]     With respect to the proposition that a “clear violation” of international law must be proven or officially confirmed in some manner before the public policy exception may apply, the plaintiffs say this argument rests on a misapprehension of a comment made by Lord Nicholls in Kuwait. The argument was rejected in Belhaj (CA), and was found to have no bearing on the public policy exception by both Lord Mance and Lord Sumption. (See Belhaj (UKSC) at paras. 80, 86 and 256 and Habib at para. 44.) Nevsun’s reliance on Khadr is also said to be misplaced since it was not concerned with act of state but with constitutional principles under the Canadian Charter. Even if “external confirmation” of a breach of international norms were required at this stage, the plaintiffs submit that the UN COI and the report to the UN Human Rights Council demonstrate that the practices associated with Eritrea’s NSP constitute forced labour, torture, slavery and crimes against humanity. As well, immigration tribunals in Canada and other courts and tribunals globally have on many occasions confirmed the findings of the UN that Eritrea’s NSP constitutes forced labour, torture, slavery and crimes against humanity.

[164]     The plaintiffs go on to contend that even if the public policy limitation involved a “balancing” of public policy considerations against comity (which they deny), that exercise would weigh heavily in the plaintiffs’ favour. On their view of the case, the conduct of Eritrea itself and its agents is secondary to the primary question of Nevsun’s complicity, while the allegations engage clear jus cogens norms that lie at the core of fundamental human rights. As Lord Neuberger noted, such norms will “almost always” engage the public policy limitation, which is a “domestic standard”. (Belhaj at paras. 155, 168.)

Analysis

[165]     In my view, there are several reasons why the act of state doctrine does not apply in this case.

[166]     First, if one accepts Lord Neuberger’s “possible” rules as describing the scope of the doctrine (and as applying, contrary to his suggestion, to harm to individuals as well as property), the plaintiffs’ claims do not purport to challenge the legality or validity (the “effect”) of a foreign state’s “legislation or other laws” nor the “effect” of an act of a foreign state’s executive in relation to events in Eritrea. The plaintiffs only seek compensation for acts on the part of Nevsun in connection with wrongs alleged to have occurred in Eritrea that are not contemplated by any legislation or official policy. If it could be said that the “effect” of an act of an executive of Eritrea was being ‘questioned’, such acts would by their nature be unlawful to the extent they were in breach of peremptory fundamental norms.

[167]     Alternatively, if one were to accept Lord Sumption’s formulation of act of state (“the courts will not adjudicate upon the lawfulness or validity of certain sovereign acts of foreign states”), one would again be met with the fact that the lawfulness, validity, effect of, or motives underlying, sovereign acts of Eritrea need not be analyzed by the domestic court. The conduct of which the plaintiffs complain is Nevsun’s alleged complicity in acts that are unlawful, and could only be unlawful under both domestic and international law. If the wrongs asserted in the NOCC were shown to have occurred, the only question remaining for the trial court would be Nevsun’s alleged complicity therein.

[168]     Similar reasoning would apply even if one were to set Belhaj aside. If one were to adopt the description given by Lord Millett in Pinochet (No 3), for example, the fact that no challenge is made to the “official and governmental acts” of Eritrea would again take this case outside the scope of act of state. Or, if one were to return to the traditional view that act of state applies only to questions of property or title thereto, there is no suggestion here that Eritrea’s ownership or possession of property, or indeed its legal position in general, would be affected by a judgment in favour of the plaintiffs. (See also Lord Mance’s comments in Belhaj at para. 29, and United Mexican States at para. 49.)

The Kirkpatrick Exception

[170]     The plaintiffs also contend that the Kirkpatrick limitation, as encapsulated in Moti, would apply in the event act of state were engaged. In Kirkpatrick, the U.S. Supreme Court stated:

Act of state issues only arise when a court must decide that is, when the outcome of the case turns upon the effect of official action by a foreign sovereign. When that question is not the case, neither is the act of state doctrine. That is the situation here. Regardless of what the courts’ factual findings may suggest as to the legality of the Nigerian contract, its legality is simply not a question to be decided in the present suit, and there is thus no occasion to apply the rule of decision that the act of state doctrine requires. [At 705; emphasis added.]

[171]     In Yukos, the Court found that the Kirkpatrick exception did not apply, since the case turned on the validity of Russian court decisions that the plaintiff claimed were “invalid, ineffective, wrongful, arbitrary, and directed by the hostile motive of a campaign of expropriation and wrongful imprisonment.” (At para. 103.) The Yukos Court could not treat the allegations as concerned with simply “what occurred and with castigating what occurred as wrongful and therefore to be regarded as ineffective.” In the analysis of Rix L.J.:

Thus we would again emphasise: the teaching of the Kirkpatrick case (and the cases which follow it) is not to do with any difference, were there to be any, between concepts of validity, legality, effectiveness, unlawfulness, wrongfulness and so on. Validity (or invalidity) is just a useful label with which to refer to a congeries of legal concepts, which can be found spread around the cases. Similarly, the word “challenge” is not sacrosanct: the cases refer to the prohibition on adjudication, sitting in judgment on, investigation, examination, and so on. What the Kirkpatrick case is ultimately about, however, is the distinction between referring to acts of state (or proving them if their occurrence is disputed) as an existential matter, and on the other hand asking the court to inquire into them for the purpose of adjudicating upon their legal effectiveness, including for these purposes their legal effectiveness as recognised in the country of the forum. It is the difference between citing a foreign statute (an act of state) for what it says (or even for what it is disputed as saying) on the one hand, something which of course happens all the time, and on the other hand challenging the effectiveness of that statute on the ground, for instance, that it was not properly enacted, or had been procured by corruption, or should not be recognised because it was unfair or expropriatory or discriminatory. [At para. 110; emphasis added.]

[172]     In my opinion, the converse is true in this case: at the risk of repetition, the Court is not being asked to inquire into the legality, validity or ‘effectiveness’ of the acts of laws or conduct of a foreign state. If the conduct complained of is proven “as an existential matter”, the only remaining issue will be whether Nevsun ‘aided and abetted’, ‘condoned’ or was otherwise complicit in it. Its ‘validity’ or ‘wrongfulness’ will not be the subject of adjudication; nor could it be, given that torture, slavery and forced labour are by their nature unlawful. As in Sharon v. Time, Inc., 599 F. Supp. 538 (SDNY 1984), “the issue in this litigation is not whether [the alleged acts] are valid, but whether they occurred.” (At 546.)

[173]     In summary, I am of the view that the Kirkpatrick limitation would also apply to the act of state doctrine if it were engaged in the case at bar. To paraphrase the U.S. Supreme Court in Kirkpatrick, the plaintiffs here are not attempting to undo or disregard any act of government, but only to obtain damages from private parties who are alleged to have been complicit therein. (At 705.) Further, paraphrasing Lord Sumption in Belhaj, Nevsun’s exoneration under act of state would “serve no interest which it is the purpose of the doctrine to protect”. (See para. 262.)

The Commercial Exception

[174]     Counsel before us made only brief submissions as to whether the “commercial exception” to the act of state doctrine would also apply. Nevsun submitted that the exception was developed to prevent commercial traders operating under the umbrella of state ownership from unfairly taking advantage of the shield of immunity. It says a claim “arising out of a program of national military service” the creation and operation of which it characterizes as acts of a “sovereign or public nature” cannot engage the commercial exception. The plaintiffs submit on the other hand that acts of forced labour and slavery are clearly commercial in nature, and that the purpose of the conduct of which they complain was an economic or commercial one to generate revenue for Eritrea from the production of gold at the Bisha mine.

[175]     This is an interesting issue, but respectfully, we did not receive argument in sufficient depth to permit us to reach a firm conclusion. The fact that both the public policy and Kirkpatrick exceptions apply makes it unnecessary to do so. The act of state doctrine in this instance is sufficiently silhouette-like that the question can be left for another day.

[176]     In the result, I would dismiss the defendant’s appeal of the chambers judge’s order dismissing the Act of State Application.

Customary International Law and Canada

[177]     I come finally to the question of whether the chambers judge erred in law in declining to strike out the plaintiffs’ claims founded in customary international law as adopted into Canadian law. As will be recalled, the defendant’s application to have the “CIL” portions of the NOCC struck out was brought pursuant to Rule 9-5 on the basis that the pleading disclosed no reasonable claim under CIL or that any such claim was unnecessary, given the availability of nominate torts under domestic law such as assault and false imprisonment. (At para. 423.) At the outset, I acknowledge that my discussion of this topic, which goes to the very nature of international law and state participation therein, will necessarily be superficial. Ultimately, the philosophical and political issues raised are not capable of resolution by a court of law, which must concern itself primarily with legal issues and applicable precedents in reaching a decision in a particular factual context. If this case reaches the Supreme Court of Canada, however, it is to be hoped that guidance can be provided as to ‘where we are’ in the evolution of transnational law that legal and other scholars have observed in recent years.

[178]     Nevsun raised several strong objections to the claims under CIL, but the overarching one is the argument that the prohibitions against slavery, torture, etc. recognized by customary international law do not give rise to private law causes of action in Canada. The chambers judge did not find it necessary to resolve this issue or the sub-issues he listed at para. 427 of his reasons, given his view that it was not “plain and obvious” the CIL claims would fail.

[179]     On appeal, Nevsun agrees that the “plain and obvious” test applies, although it also notes that in this court, the standard of appellate review on a motion to strike is correctness: see Carhoun & Sons Enterprises Ltd. v. Canada (Attorney General) 2015 BCCA 163 at para. 23 and Johnston Estate v. Johnston Estate 2017 BCCA 59 at para. 25. The plaintiffs did not challenge this proposition in their factum or oral argument.

[180]     Nevsun also acknowledges the principle enunciated in the well-known passage from Hunt v. Carey concerning difficult or novel claims. (See para. 83 above.) In the defendant’s submission, however, the plaintiffs’ claims for damages for breaches of CIL are “beyond anything that has ever been seen in this country”. Making a change in the law to accommodate the plaintiffs’ claims would not bring about an incremental extension of the law but would constitute a radical transformation.

[181]     The defendant goes on to describe public international law as something conceptually distinct from the national legal systems of states. It argues that although international criminal and human rights norms are being felt on the periphery of domestic legal systems (see e.g., Baker v. Canada 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at paras. 69 – 71), the two systems still remain distinct in their application and effects. On this point, counsel notes the comment of John H. Currie, Public International Law (2nd ed., 2008) that:

… the current interaction between international and domestic legal systems is in a state of flux and in fact has both dualist and monist tendencies. To the extent that international law continues to develop and extend its substantive scope, it is likely that dualism alone will provide an ever-less satisfactory model to describe its relation to domestic law. However, it is important to bear in mind that in its present state of development, the international legal system remains, at least notionally and in many ways formally and practically, quite distinct in its application and effects from national systems.

In any case and as suggested above, the precise extent to which the interface between international and domestic legal systems is accurately described in dualist or monist terms will depend crucially on each domestic legal system’s chosen approach to the “reception” of international law. [At 224.]

[182]     Thus far, courts in both the U.K. and Canada have declined to recognize a private cause of action for breaches of jus cogens such as the prohibition against torture. In these cases all of which were brought against sovereign states the principle of state immunity has weighed strongly against upsetting the “balance currently struck in international law ‘between the condemnation of torture as an international crime against humanity and the principle that states must treat each other as equals not to be subjected to each other’s jurisdiction’”. (Per Lord Bingham in Jones v. Ministry of Interior of the Kingdom of Saudi Arabia, at para. 1.)

[183]     In Bouzari, for example, the Ontario Court of Appeal upheld the dismissal of an action brought by an Iranian national against Iran for damages for abduction, imprisonment and torture. The plaintiff had emigrated to Canada and brought his suit in Ontario. The plaintiff argued, and the Attorney General of Ontario acknowledged, that customary rules of international law are “directly incorporated into Canadian domestic law unless explicitly ousted by contrary legislation”. (Citing Jutta Brunnee and Stephen J. Toope, “A Hesitant Embrace: The Application of International Law by Canadian Courts”, (2002) 40 Can. Y.B. Int’l.L. 3.) However, as the authors also observed, it was open to Canada to legislate contrary to principles of customary international law and the SIA had clearly and unambiguously accorded state immunity to the defendant Iran.

[184]     The Court in Bouzari also addressed the “more fundamental question” of whether Canada was under an obligation to “provide access to the courts so that a litigant can pursue an action for damages against a foreign state for torture committed outside Canada.” On this question, the parties had adduced expert evidence from two experts in international law, Prof. Greenwood and Prof. Morgan. (See para. 68.) The judge of first instance in Bouzari had preferred Prof. Greenwood’s opinion that the Convention Against Torture does not create any such obligation. Rather, she opined, the Convention simply required Canada to provide a remedy for torture committed within its own jurisdiction. (At para. 74.) Writing for the Court, Mr. Justice Goudge reasoned:

Both experts agreed that state practice is important in the interpretation of Article 14. The motion judge found that no state interprets Article 14 to require it to take civil jurisdiction over a foreign state for acts committed outside the forum state. Indeed, on ratifying the Convention, the United States issued an interpretive declaration indicating that it understood Article 14 to require a state to provide a private right of action for damages only for acts of torture committed within the jurisdiction of that state. Ultimately, the motion judge based her conclusion on Professor Greenwood’s evidence of a broad state practice reflecting a shared understanding that Article 14 limits the obligation of a ratifying state to providing the right to a civil remedy only for acts of torture committed within its territory.

While the appellant contests this finding of state practice, particularly that it reaches the level of agreement on the meaning of Article 14, there was ample evidence to sustain this conclusion. Indeed, I agree with it.

The appellant also argues that the motion judge should have expressly considered the fact that an early draft of Article 14 contained the phrase “committed in any territory under its jurisdiction” and should have drawn the inference that by omitting this phrase from the final draft, the intention was to exclude this concept from the Article. However, Professor Greenwood, whose opinion the motion judge accepted, was of the view that the words were dropped because they were superfluous since this limitation was already implicit in the Article. The motion judge did not err in accepting this opinion and disregarding the drafting history of Article 14.

In my view, the motion judge correctly concluded on the basis of these various considerations that Canada’s treaty obligation pursuant to Article 14 does not extend to providing the right to a civil remedy against a foreign state for torture committed abroad. The appellant’s various attacks on her careful analysis all must be dismissed. Canada’s treaty obligation under Article 14 simply does not extend to the appellant’s case. [At paras. 7881.]

and further:

Thus, I see no basis to depart from the conclusion of the motion judge. Just as Canada’s treaty obligations do not do so, the rules of customary international law binding Canada do not accord to the appellant the civil remedy he seeks. Both under customary international law and international treaty there is today a balance struck between the condemnation of torture as an international crime against humanity and the principle that states must treat each other as equals not to be subjected to each other’s jurisdiction. It would be inconsistent with this balance to provide a civil remedy against a foreign state for torture committed abroad. In the future, perhaps as the international human rights movement gathers greater force, this balance may change, either through the domestic legislation of states or by international treaty. However, this is not a change to be effected by a domestic court adding an exception to the SIA that is not there, or seeing a widespread state practice that does not exist today. [At para. 95; emphasis added.]

[185]     In 2006, in Jones v. Ministry of Interior of the Kingdom of Saudi Arabia, the House of Lords reached a similar conclusion. In his reasons, Lord Bingham reviewed the proceedings of a meeting of the Committee Against Torture set up under the Convention, which considered reports submitted by Canada in 2005. During the discussion, an American committee member, Ms. Gaer, had raised the question of whether Article 14 required Canada to provide a civil remedy for victims of torture in foreign states. Lord Bingham described the discussion:

The Canadian representatives said that their understanding of the effect of Art. 14 was that it did. As I have said earlier, that is the general understanding of Art. 14 and the United States in particular accompanied its ratification of the Torture Convention with a statement that:

It is the understanding of the United States that Article 14 requires a state party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that state party.

No one has ever objected to that statement of understanding by the United States and similar views have been expressed and reports to the Committee by New Zealand and German…. Nevertheless, in its comments on the Canadian report, the Committee expressed concern at the absence of effective measures to provide civil compensation to victims of torture in all cases and recommended that Canada should “review its position under Article 14 of the Convention to ensure the provision of compensation through its civil jurisdiction to all victims of torture”…. Quite why Canada was singled out for this treatment is unclear, but as an interpretation of Art. 14 or a statement of international law, I regard it as having no value. The short answer is that … an exception for torture is neither recognized by international law nor required by Art. 14. Whether it should be is another matter. The Committee has no legislative powers. [At para. 57; emphasis added.]

[186]     In 2014, the question reached the Supreme Court of Canada in Kazemi. The Court held that there was no obligation on signatories to the Convention Against Torture to create civil remedies for torture committed outside their respective territorial jurisdictions. LeBel J. for the majority reasoned:

Taking the above as indicative of lack of state practice and opinio juris, I must conclude that Canada is not obligated by the jus cogens prohibition on torture to open its courts so that its citizens may seek civil redress for torture committed abroad. This is not the meaning and scope of the peremptory norm [against torture]. Consequently, failing to grant such access would not be a breach of the principles of fundamental justice. [At para. 157; emphasis added.]

As for the argument that a “universal civil jurisdiction has been created allowing foreign officials to be sued in our courts”, the majority commented:

Creating this kind of jurisdiction would have a potentially considerable impact on Canada’s international relations. This decision is to be made by Parliament, not the courts.

I further note that the development of the common law should be gradual and that it should develop in line with norms accepted throughout the international community. ... The common law should not be used by the courts to determine complex policy issues in the absence of a strong legal foundation or obvious and applicable precedents that demonstrate that a new consensus is emerging. To do otherwise would be to abandon all certainty that the common law might hold. Particularly, in cases of international law, it is appropriate for Canadian courts only to follow the “bulk of the authority” and not change the law drastically based on an emerging idea that is in its conceptual infancy. (Jones v. United Kingdom, at para. 213). The “bulk of the authority” in this situation confirms that a State’s right to immunity may not be circumvented by suing its servants or agents instead” (ibid.) [At paras. 1078; emphasis added.]

[187]     Abella J. dissented, writing that an individual’s right to a remedy for violations of his or her human rights is “now a recognized principle of international law” (at para. 199) and that:

The availability of the state immunity for jus cogens violations rests on the underlying rationale that such immunity is necessary to allow the government to continue functioning in its own territory. By declining to extend the reach of its conclusion to individual foreign individuals, the I.C.J. [in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 Feb. 2012, [2012] I.C.J. Rep. 99] implicitly acknowledged the immunity ratione materiae in civil proceedings can be developed on a different trajectory than state immunity (Hazel Fox and Philippa Webb, The Law of State Immunity (3rd ed. 2013), at p. 569).

The evolutionary nature of the law of immunity for torture was recognized most recently in Jones v. United Kingdom.…

The European Court of Human Rights extensively reviewed the international jurisprudence, noting that state practice on the question of immunity ratione materiae for incidents of torture was “in a state of flux” (para. 30). It recognized the existence of “some emerging support in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged against foreign State officials” because torture was not lawfully within the scope of official authority (para. 213; see, e.g., Samantar II as well as Xuncax v. Gramajo, 886 F.Supp. 162 (D. Mass. 1995), and Cabri v. Assasie-Gyimah, 921 F.Supp. 1189 (S.D.N.Y. 1996)). Nevertheless, it was of the view that there was not yet sufficient international support for denying immunity to individual defendants against a civil claim based on torture. This decision, however does not foreclose the possibility that torture is beyond the protection of immunity ratione materiae. [At paras. 205208; emphasis added.]

Abella J. also found that on its face, Article 14 of the Convention imposed an obligation on state parties to ensure that all victims of torture from their countries can obtain “redress and ha[ve] an enforceable right to fair and adequate compensation”. (At para. 215.)

[188]     Each of Bouzari, Jones and Kazemi involved, of course, claims made against foreign states. The case at bar does not; nor does it involve claims against “servants or agents” of a state. Because of that, the SIA is not applicable and the salience of arguments based on international comity and equality is obviously attenuated: those values are clearly less relevant to a claim against a British Columbia corporation.

[189]     Nevsun contends, however, that corporations such as itself are subjects of national law and “creatures of statute” that are not directly recognized as actors in international law. In Nevsun’s submission:

Efforts on the international plane to create legal frameworks governing the activities of multinational corporations have remained at the developmental stage ‘and in any event have been formulated in terms of rights and obligations of states in relation to such entities, and not of the entities themselves’. (Emphasis added). As it stands, international law does not purport to regulate corporations directly, but may oblige states to do so under their own national laws. Corporate liability for human rights violations is not yet recognized under any customary international law.

(Citing Brownlie’s Principles of Public International Law (8th ed., 2012) at 6556.) Nevsun also emphasizes that some efforts have been made in recent years to “legislate by treaty” a rule that corporations may face liability under national criminal laws through which states implement their international obligations, but that such efforts have failed thus far.

[190]     The plaintiffs respond that Nevsun’s objections to the concept of the adoption of CIL into Canadian law rest on a fundamental misunderstanding of Canada’s constitutional arrangements and the relationship between criminal and tort law. They take the position that peremptory norms of international law are “automatically” incorporated into the domestic law of Canada in the absence of legislation to the contrary. On this point, they refer again to Hape, where LeBel J. said for the majority:

Despite the court’s silence in some recent cases, the doctrine of adoption has never been rejected in Canada. Indeed, there is a long line of cases in which the Court has either formally accepted it or at least applied it. In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law. [At para. 39; emphasis added.]

[191]     Obviously, the plaintiffs continue, Canada has not passed any laws that legalize slavery, torture or crimes against humanity. The fact that a breach of these norms is a crime under international law does not mean it may not also be a civil wrong and indeed, the plaintiffs note that s. 11 of the Criminal Code, R.S.C. 1985, c. C-46, provides that no civil remedy for an act or omission is suspended or affected by reason of the fact that it is also a criminal offence. The plaintiffs also note that Lord Sumption in Belhaj soundly rejected the proposition that since torture was a crime, treaties prohibiting torture could not inform the public policy limitation on the act of state doctrine. In his Lordship’s words:

It is no answer to these points to say that these treaty provisions are concerned with criminal law and jurisdiction. So they are. But the criminal law reflects the moral values of our society and may inform the content of its public policy. Torture is contrary to both a peremptory norm of international law and a fundamental value of domestic law. Indeed, it is contrary to domestic public policy in England long before the development of any peremptory norm of international law. It derives its force chiefly from England’s long domestic tradition of abhorrence of torture, even in a period when it was commonplace in other jurisdictions. [At para. 160, citing Belhaj UKSC at para 266; emphasis added.]

[192]           The plaintiffs also take issue with the notion, advanced by “classical positivist scholars”, that states are the sole entities having legal personality in international law. The plaintiffs cite scholarly articles that acknowledge that private parties today participate in the “international legal process” (see Jan Paulsson, Denial of Justice in International Law (2005) at 55), although that role does not suffice to “suggest a major upheaval of the international law-making system” (see Jean d’Aspremont, Participants in the International Legal System (2011) at 25.) In more colourful terms, Jordan J. Paust writes in “Non-state Actor Participation in International Law and the Pretense of Exclusion” (2011) 51 Va.J. Int’l L. 977 that:

For centuries, there have been vast numbers of formally recognized actors in the international legal process other than the state, although far too many assume incorrectly that traditional or classical international law had been merely state-to-state and that under traditional international law individuals and various other nonstate actors did not have rights or duties based directly in international agreements or customary international law. Even today, invidious consequences occur when judges cling to clearly ahistorical assumptions about international law and rule erroneously that customary international law is created “only by achieving universal recognition and acceptance as a norm in the relations of States inter se” and that “international law … has never extended the scope of liability to a corporation.” This Essay seeks to explode a false and inhibiting myth regarding nonstate actors and a related pretense of exclusion by identifying a large number of such actors from each inhabited region of the globe and a number of specific forms of formal participation from the 1700s through the early twentieth century when, according to mendacious myth, state-oriented positivism achieved complete and universal acceptance and denied the existence of any status, role, right, or duty of any nonstate actor. [At 9778; emphasis added.]

[193]     Going back in time, the plaintiffs observe that historically, international laws against piracy were extended to “non-state entities” and that claims for “denial of justice”, one of CIL’s oldest principles, may now be brought by corporations directly against states. (See Paulsson at 1, 89.) As well, the plaintiffs note that at the Nuremberg trials after World War II, the tribunals suggested that certain German corporations had violated international law during the war a fact relied upon by the Ninth Circuit Court of Appeals in Doe v. Nestle U.S.A., Inc. 766 F. (3d) 1013 (2014).

[194]      In Nestle, the Court reviewed its previous decision in Sarei v. Rio Tinto PLC, 671 F. 3d 736 (9th Circ., 2011), brought under the Alien Tort Statute, 28 USCA s.  1350 (“ATS”) in respect of violations of international norms against genocide and war crimes. The Court in Nestle recounted:

In Sarei we also explained that a norm could form the basis for an ATS claim against a corporation even in the absence of a decision from an international tribunal enforcing that norm against a corporation. (“We cannot be bound to find liability only where international fora have imposed liability.”). We explained that the absence of decisions finding corporations liable does not imply that corporate liability is a legal impossibility under international law, and also noted that the lack of decisions holding corporations liable could be explained by strategic considerations…. Sarei reaffirmed that corporate liability ultimately turns on an analysis of the norm underlying the ATS claims.

.           .           .

We thus established three principles about corporate ATS liability in Sarei, that we now reaffirm. First, the analysis proceeds norm-by-norm; there is no categorical rule of corporate immunity or liability. Second, corporate liability under an ATS claim does not depend on the existence of international precedent enforcing legal norms against corporations. Third, norms that are “universal and absolute,” or applicable to “all actors,” can provide the basis for an ATS claim against a corporation. To determine whether a norm is universal, we consider, among other things, whether it is “limited to states” and whether its application depends on the identity of the perpetrator. [At 1021; emphasis added.]

Care must of course be taken in attempting to draw legal principles from U.S. cases such as Nestle, because Canada does not have a statute comparable to the ATS.

[195]     It would not be useful for me to go further in elaborating on the parties’ respective arguments on the CIL question. Many of these arguments are historical or philosophical rather than legal a fact that makes it all the more difficult to arrive at a clear conclusion as to the likelihood of the plaintiffs’ position succeeding in Canada. The basic elements of the plaintiffs’ legal position are found at para. 199 of their factum:

Unproven structural elements of international law do not govern how the rules cited by the plaintiffs are integrated into the common law. Rather, as the chambers judge acknowledged, common law principles regarding civil liability and corporate personality may be used to supplement these rules and guide their operation, even if international law itself knows no such principles. Since these torts have yet to be defined, all of these are presently open questions. As such, Nevsun’s contention that the plaintiffs’ claims are bound to fail cannot succeed at this stage. Nevsun itself acknowledges that at the very least, international law is a “source of ‘development’ and ‘adaptation’ of the common law.” This contradicts Nevsun’s argument that international law must be strictly and rigidly applied.

As against this, para. 137 of Nevsun’s factum encapsulates its position:

The plaintiffs’ customary international law claims are incompatible with the basic structure of international law, with how international law is received in Canada, and with settled principles of Canadian law laid down by the Supreme Court of Canada. Their recognition would require a major and complex revision to domestic common law. Such a change has not been shown to be necessary, and even if it were, it must be left to the legislature. In concluding that the plaintiffs’ customary law claims had a reasonable prospect of success, the chambers judge failed to correctly apply these principles, with the result that he erred in law. The customary international law claims should be struck out in the interests of judicial efficiency and correctness, to allow the court and the parties to focus on the real issues in the action, and not the vast and complicated, but ultimately irrelevant, terrain of public international law.

[196]     There is no doubt that in pursuing claims under CIL, the plaintiffs face significant legal obstacles, including states’ legitimate concerns about comity and equality and the role of the judiciary as opposed to that of the legislature. It is not necessarily the case, however, that the recognition of a CIL norm against torture as the basis for some type of private law remedy in this instance would bring the entire system of international law crashing down. As I have emphasized, no state is a party to this proceeding; Eritrea is fully protected by state immunity; and the prohibition against torture is, as the majority stated in Kazemi, “universally accepted.” If, as the Court suggested, the development of the law in this area should be gradual, it may be that an incremental first step would be appropriate in this instance.

[197]     At the end of the day, I do not believe it can be said the plaintiffs’ claims are “bound to fail”. We have seen that international law is “in flux” and that transnational law, which regulates “actions or events that transcend national frontiers” is developing, especially in connection with human rights violations that are not effectively addressed by traditional “international mechanisms”: see Raponi at 374. Other jurisdictions have been willing to hold corporate actors accountable for violations of jus cogens; and over time, the doctrine of act of state has been limited by public policy considerations said to be part of domestic law. Reasonable persons and reasonable experts in international law would seem to hold different views (as occurred in Bouzari) on the effect of the Convention Against Torture on states’ domestic laws, and expert opinion evidence would obviously be helpful on the point. In all the circumstances, I am not persuaded the chambers judge erred in ruling that this action, including the claims based on CIL, should proceed in British Columbia as pleaded.

DISPOSITION

[198]     In the result, I would dismiss the appeal from Mr. Justice Abrioux’s rulings on all the applications in question. We are grateful for the very able submissions of all counsel in this matter.

“The Honourable Madam Justice Newbury”

 

I AGREE:

“The Honourable Mr. Justice Willcock”

I AGREE:

“The Honourable Madam Justice Dickson”

 


 

TABLE OF CASES

 

A.B. v. Bragg Communications Inc., 2012 SCC 46.

 

Airia Brands v. Air Canada, 2015 ONSC 5332.

 

AK Investment CJSC v. Kyrgyz Mobil Tel Ltd., [2011] UKPC 7.

Al-Jedda v. Secretary of State for Defence, [2010] EWCA Civ 758.

 

Ayangma v. Canada Health Infoway, 2017 PECA 13.

 

Baker v. Canada, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193.

 

Belhaj v. Straw, [2014] EWCA Civ 1394, aff’d [2017] UKSC 3.

 

Bombardier Inc. v. AS Estonian Air, 2014 ONCA 41.

 

Bil’in (Village Council) v. Green Park International Inc., 2009 QCCS 4151, aff’d 2010 QCCA 1455.

 

Blad v. Bamfield, (1673) 3 Swan 603, (1674) 4 Swan 604.

 

Bouzari v. Islamic Republic of Iran, (2004) 2004 CanLII 871 (ON CA), 71 O.R. (3d) 675 (C.A.), 243 D.L.R. (4th) 406.

 

Breeden v. Black, 2012 SCC 19.

 

Buck v. Attorney-General, [1965] 1 Ch. 745 (C.A.), [1965] 1 All E.R. 882.

 

Buttes Gas and Oil Co. v. Hammer (No 3), [1982] A.C. 888, [1981] All E.R. 616.

 

Canada (Attorney General) v. Bedford, 2013 SCC 72.

 

Canada (Justice) v. Khadr, 2008 SCC 28.

 

Canadian Foundation for Children, Youth and the Law v. Canada, 2004 SCC 4.

 

Carhoun & Sons Enterprises Ltd. v. Canada (Attorney General), 2015 BCCA 163.

 

Carter v. Canada (Attorney General), 2012 BCSC 886, aff’d 2015 SCC 5.

 

Cervo v. Raimondo (2006), 2006 CanLII 37119 (ON CA), 83 O.R. (3d) 56, 277 D.L.R. (4th) 95 (Ont. C.A.).

 

Chellaram v. Chellaram (No. 2), [2002] EWHC 632 (Ch.).

Club Resorts Ltd. v. Van Breda, 2012 SCC 17.

 

Connelly v. RTZ Corp. plc (No. 2), [1997] I.L.P.r. 643.

 

Doe v. Nestle U.S.A., Inc., 766 F. (3d) 1013 (2014).

 

Doe 1 v. Unocal Corp., 395 F. 3d. 932 (9th Cir. 2002).

 

Duke of Brunswick v. King of Hanover, (1848) 2 H.L.C. 1, 9 E.R. 993.

 

Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18.

 

Ellph.com Solutions Inc. v. Aliant Inc., 2012 NSCA 89.

 

Ferrexpo AG v. Gilson Investments Ltd. [2012] EWHC 721 (Comm).

 

Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, 88 D.L.R. (4th) 1.

 

Garcia v. Tahoe Resources Inc., 2015 BCSC 2045 (rev’d 2017 BCCA 39, lve to app. dism’d [2017] SCCA No. 94).

 

Habib v. Commonwealth of Australia, [2010] FCAFC 12.

 

Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006), 137 I.L.R. 480.

 

Harrison v. XL Foods Inc., 2014 ABQB 720.

 

Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959.

 

Hunt v T&N plc, 1990 CanLII 90 (SCC), [1993] 4 S.C.R. 289, 74 D.L.R. (4th) 321.

 

Hutton (E.F.) & Co. (London) Ltd. v. Mofarrij, [1989] 1 W.L.R. 488 (C.A.), 2 All E.R. 633.

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Johnston Estate v. Johnston Estate, 2017 BCCA 59.

 

Jones v. Ministry of Interior of the Kingdom of Saudi Arabia, [2006] UKHL 26.

 

Jones v. Zimmer GMBH, 2013 BCCA 21.

 

Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62.

 

Kish (Litigation Guardian of) v. Sobchak, 2016 BCCA 65.

 

Kuwait Airways Corp. v. Iraqi Airways Co., [2000] EWCA Civ 284.

 

Kuwait Airways Corporation v. Iraqi Airways Company (Nos 4 and 5), [2002] UKHL 19, 2 A.C. 883.

 

Lapointe Rosenstein Marchand Melancon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30.

 

Mahjoub v. Canada (Minister of Citizenship and Immigration), 2006 FC 1503.

 

Manuel v. Attorney General [1982] 3 All E.R. 786 (Ch. D.).

 

Mengiste v. Endowment Fund for the Rehabilitation of Tigray, [2013] EWHC 599 (Ch.).

 

Mining Watch Canada v. Canada (Minister of Fisheries and Oceans), 2010 SCC 2.

 

Moti v. The Queen, [2011] HCA 50.

 

Nissan v. Attorney General, [1970] A.C. 179 (H.L.).

 

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Penner v. Niagara (Regional Police Services Board), 2013 SCC 19.

 

Princess Paley Olga v. Weisz, [1929] 1 K.B. 718, 5 I.L.R. 95.

 

Reza v. Canada, 1994 CanLII 91 (SCC), [1994] 2 S.C.R. 394, 116 D.L.R. (4th) 61.

 

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R. v. Clayton, 2007 SCC 32.

 

R. v. Hape, 2007 SCC 26.

 

R. v. Parks, (1993) 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.).

 

R. v. Spence, 2005 SCC 71.

 

Sarei v. Rio Tinto PLC, 671 F. 3d. 736 (9th Circ., 2011).

 

Schreiber v. Canada (Attorney General), (2001) 2001 CanLII 23999 (ON CA), 152 C.C.C. (3d) 205, aff’d 2002 SCC 62.

 

Sharon v. Time, Inc., 599 F. Supp. 538 (SDNY 1984), 88 I.L.R. 101.

 

Teck Cominco Metals Ltd. v. Lloyd’s Underwriters, 2009 SCC 11.

 

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Wenngatz v. 371431 Alberta Ltd., 2013 BCCA 225.

 

W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corporation International, (199) 493 U.S. 400, 88 I.L.R. 93.

 

Yukos Capital Sarl v. OJSC Rosneft Oil Co. (No. 2), [2012] EWCA Civ 855, 165 I.L.R. 554.



[1] See the discussion of the terms “transnational law” and “transnational public law litigation” in S. Raponi, Grounding a Cause of Action for Torture in Transnational Law, in C. Scott, Torture as Tort: Comparative Perspectives in the Development of Transnational Human Rights Litigation (Hart Publishing, 2001) at 3745.

[2] I note that the word “conveniens” in the phrase “forum conveniens” refers not to “convenience”, but to “appropriateness.” For a discussion of the genesis of the doctrine of forum non conveniens, see Chilenye Nwapi, “Re-Evaluating the Doctrine of Forum Non Conveniens in Canada”, (2013) 34 Windsor Rev. Legal & Social Issues 59, at 617.

[3] The defendant cites various paragraphs of plaintiffs’ pleading in support of this proposition, but it is worth noting that where the NOCC refers to the application of “international law”, it is in connection with the notion that CIL can or should be adopted into the common law of Canada, as discussed later in these reasons in connection with the CIL Application. The act of state doctrine and the public policy exception or limitation thereof often arise in the context of a contest concerning the “proper law” question, but it does not decide that question.