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Why is it difficult for victims to access Canadian courts?
26 March 2019
Those who have been wronged by a Canadian company working overseas face many hurdles accessing Canadian courts. Litigation can be costly and logistically difficult. In addition, plaintiffs run the risk that a Canadian judge will refuse to hear their case. The legal principle of forum non conveniens allows a judge to decline a case, even if the Canadian court has jurisdiction to hear it, if the judge finds that it would be more appropriate for the case to be heard in the country where the alleged abuse took place.
As the number of troubling accusations regarding human rights abuse and Canadian companies grows, foreign victims have begun to test the legal waters in Canada. To date, eight cases involving international corporate accountability have been brought to Canadian courts. However, thus far no non-national has been successful in such a suit. Three cases (involving HudBay Minerals in Guatemala) are currently at trial in Ontario. The HudBay cases are, so far, unique. HudBay withdrew its arguments on forum non conveniens, which meant that these cases could go to trial, but would not clear the way for future cases to be heard in Ontario courts. A similar case brought to the BC Supreme Court was dismissed on forum grounds, and another case in BC is outstanding.
If every country had a free and fair judicial system, or there were effective international mechanisms for holding companies to account, accessing justice in Canada would be less urgent. However, in many countries where Canadian mining companies operate, legal barriers, cost and corruption can make it difficult for those who suffer corporate abuse to seek justice. Where regulations do exist in other countries, they are often weak and unenforced. To make matters worse, in several countries, Canada has played a role in weakening social and environmental protections through mining code revisions.
Globally, there is an urgent need to improve access to justice for victims of corporate abuse. The United Nations urges states to address the barriers that prevent legitimate cases from being brought before the courts.
It is time for the Canadian government to show leadership in facilitating access to Canadian courts for the foreign victims of corporate abuse.