Legislation Update: July 2017

The facts

The plaintiffs are residents of the town in Guatemala where the Tahoe mine is located. They are supported in Canada by Vancouver law firm Camp Fiorante Matthews Mogerman and the Canadian Centre for International Justice. They alleged that they were “intentionally” wounded by Tahoe’s security personnel opening fire on them, to supress a peaceful protest. Residents established a peaceful protest camp near the mine and carried out daily stand-ins, following which they allege the security emerged from the mine in riot gear and opened fire at the peaceful protesters. The protest expressed the community’s concerns over the environmental impacts of the mine, and the lack of communication the company offered to the community regarding the project. They also allege the security manager, Alberto Rotondo, is guilty of ordering the shooting and of covering up regarding following the shooting. On the 30^th of April, Rotondo was arrested and charged with obstruction of justice, causing serious and minor injuries, and mistreatment of a minor. An employee of Tahoe Resources, Juan Pablo Oliva Trejo, was also arrested and charged with concealment of evidence regarding this incident.

In their defense, Tahoe Resources claimed in a statement that the protest turned “hostile”, and in retaliation they used only tear gas and rubber bullets to contain around 20 people armed with machetes.

The decision

The Supreme Court of British Columbia held hearings of this case in April 2015. Tahoe Resources asked the court to dismiss the case claiming that the case was out of the jurisdiction of the Canadian Courts, and should instead be heard within Guatemala. In November 2015, a Canadian Supreme Court Justice denied jurisdiction in the case and ruled that the plaintiffs could seek justice in Guatemala.

The plaintiffs then appealed this ruling, arguing the barriers to justice in Guatemala meant that justice could never be done there. They also denied the ruling that they needed to provide evidence to show justice could not take place in Guatemala, but that they need only provide evidence that there is a risk of unfair trial.

In January 2017, the British Columbia Court of Appeal overturned a lower court decision to say it had jurisdiction over the claims as the plaintiffs would not be granted a fair trial in Guatemala. The company appealed and in June 2017, the Supreme Court of Canada declined to hear Tahoe Resources’ appeal, meaning the case could be tried in Canada.

Lessons for businesses

This ruling has implications for parent companies operating abroad. It sets the precedent for victims of human rights abuses linked to Canadian companies operating abroad, to be able to gain justice within Canada instead of their home country. Before this, the legal doctrine of forum non conveniens meant courts could dismiss a case in favour of a foreign jurisdiction and shielded Canadian companies. Now, foreign victims are more likely to try and win compensation or justice from the courts where the parent companies operate, as they are not bound by legal barriers to seek justice in their home countries.