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ARTICLE · 21 MARCH 2020

Case Study: Nevsun Resources Ltd. v. Araya, 2020 SCC 5

Gardiner Roberts LLP
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Slavery, forced labour, cruel and degrading treatment and crimes against humanity have long been recognized as prohibited conduct under the norms of customary international law.

CanadaLitigation, Mediation & Arbitration
John A. Campion
John A. Campion
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Introduction

Slavery, forced labour, cruel and degrading treatment and crimes against humanity have long been recognized as prohibited conduct under the norms of customary international law. The question that confronted the Supreme Court of Canada is whether alleged breaches of customary international norms of prohibitions against slavery, forced labour, cruel and degrading treatment and crimes against humanity can form the basis of tort claims in damages in a Canadian civil court.

The Nevsun Case

In Nevsun Resources Ltd. v. Araya, the Supreme Court of Canada decided (five to four) that it was not "plain and obvious" that claims in damages arising from allegations of breach of customary international norms "have no reasonable likelihood of success". In short, the tort claims based on a breach of customary international norms of slavery, forced labour, cruel and degrading treatment, and crimes against humanity must proceed to discovery and trial.

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