The decision is at:
https://www.canlii.org/en/ca/scc/doc/2020/2020scc5/2020scc5.html
The appeal was in the context of the defendant’s motion to strike the claims based on violations of customary international law as
disclosing no reasonable cause of action. The majority held that it was not “plain and obvious” that these claims would fail and so allowed them to proceed to trial for the trial judge to determine whether they are, in law, viable (para 132). I do not think
this decision can be taken as saying these claims exist as of now in Canadian law. They might and they might not. We will see.
For what it is worth, the minority (unlike the majority) was prepared to decide the legal question, holding Canadian law recognizes
no such claim. Indeed, the minority is pretty biting in criticising the lack of jurisprudential support for the opposite view (see paras. 188 and 269).
I have written a short preliminary analysis of the decision, which is at:
http://conflictoflaws.net/2020/claims-against-corporate-defendant-founded-on-customary-international-law-can-proceed-in-canada/
Stephen
Professor Stephen G.A. Pitel
Faculty of Law, Western University
(519) 661-2111 ext 88433
Vice-President, Canadian Association for Legal Ethics/Association canadienne pour l’ethique juridique
Past President, University of Western Ontario Faculty Association
From: Baughen S.J. <s.j.baughen@swansea.ac.uk>
Sent: March 4, 2020 4:29 AM
To: Obligations <obligations@uwo.ca>
Subject: Supreme Court of Canada gives its decision in Nevsun v Arraya
Dear All,
An interesting recent tort decision in the claim against a Canadian mining corporation based on its subsidiary's shareholding in a gold mine in Eritrea in which the Eritrean state is alleged to have used
slave labour.
It has now decided, thirteen months after conclusion of the hearing, that: (1) 7-2 that the Act of State
doctrine does not form part of the law of Canada and (2) 5-4 that a cause of action based on violations of customary international law exists. In this case the claim is for aiding and abetting violations of the norms prohibiting slavery and crimes against
humanity. It now goes back to the trial judge.
Best wishes,
Simon
Simon Baughen, Professor of Shipping Law, Athro Cyfraith Llongau.
https://orcid.org/0000-0003-0837-4501