Lawsuits against Canadian Mining Company for Human Rights Abuses

October 24th, 2013 by Dan Stone

Lawsuits against Canadian Mining Company for Human Rights Abuses Committed Abroad Allowed to Proceed

This blog is written by our summer student, Michelle Stephenson.

Last month, three motions to strike by Toronto-based mining company Hudbay Minerals Inc. and two of its subsidiaries were dismissed by the Ontario Superior Court of Justice. Instead, the lawsuits against the Canadian mining company for human rights abuses committed abroad allowed to proceed.

The motions were to strike the claims in Margarita Caal Coal v. Hudbay Minerals Inc., Angelica Choc v. Hudbay Minerals Inc., and German Chub Choc v. Hudbay Minerals Inc, suits that arose from allegations of human rights abuses of indigenous Mayan Q’eqchi’ in Guatemala by security personnel under the control of Hudbay Minerals.

In the Margarita Caal Coal, 11 women are alleging that they were gang-raped by security personnel, police, and military during the course of a forced removal from their village. In Angelica Choc, a “respected indigenous leader and outspoken critic of mining practices” was allegedly beaten and shot in the head by security personnel in the context of a land dispute. And in German Chub Choc, the plaintiff alleges that in the context of a land dispute he was shot and left paralyzed from the chest down in an unprovoked attack by security personnel.

The plaintiffs’ positions emphasize that Hudbay retained control and supervision of the mining project and security practices, and thus was liable for the actions taken on its behalf. The plaintiff’s also allege that Hudbay created a risk of violence by employing undertrained and under-supervised personnel “armed with unlicensed and illegal weapons.”

In response to these claims, Hudbay and its subsidiaries brought motions to have these actions struck on the basis that they had no chance of success at trial.

In its defence, Hudbay argues that it could not be held responsible for the actions of its subsidiaries and thus the actions had no chance of success. However, the court found that at trial the position of the plaintiffs (that the subsidiary companies were acting as agents of Hudbay Minerals) might be accepted, as it was “not patently ridiculous or incapable of proof.”

Interestingly, rather than attempting to recover damages for the torts actually committed, such as sexual assault, the plaintiffs are suing the company in negligence for failing to prevent the harms. For this action to succeed, a trial judge would have to recognize a new duty of care applying to this novel situation.

The court held that it was not impossible that a duty of care would be established at trial; it was plausible that the damage resulting from the company’s actions or inactions could satisfy the traditional test for establishing a new duty of care.

Ultimately, the court held that the lawsuits faced by the companies were not so obviously bound to fail, and dismissed the motions.

While this decision might well be appealed, the policy implications are broad. Allowing the plaintiffs to sue Hudbay for negligence represents a move towards greater accountability and of Canadian companies for their subsidiaries’ actions internationally.

For the full decision on the lawsuits against the Canadian mining company for human rights abuses committed abroad allowed to proceed:
http://lancasterhouse.com/pdf/decisions/up-OSCJ_Hudbay.pdf

Have questions about your employment or human rights case? Contact Marty Rabinovitch.


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