Today the Court of Appeal dismissed an appeal in which a BC Corporation applied to have an action stayed in B.C. on the basis that Eritrea was the forum conveniens. The Court accepted that there was a “real risk” of corruption and unfairness in the Eritrean legal system.
The Court also dismissed an appeal from an order refusing to strike the claim that was sought by the BC Corporation based on the doctrine of act of state, which precludes a domestic court from adjudicating on the legality or validity of legislation of a foreign state or acts done by officials of a foreign state. The Court held that the doctrine was not applicable, and in any event the public policy limitation to the doctrine applied in light of the grave nature of the wrongs asserted by the plaintiffs which included forced labour, slavery and torture.
Finally, the Court dismissed the he BC Corporation's application to have causes of action based on customary international law struck out. The BC Corporation argued that even though Canada is a party to the Convention Against Torture, there is no right in Canada to a civil remedy for acts of torture committed outside Canada. Although prior Canadian decisions against foreign states have declined to recognize private causes of action for breaches of peremptory international norms, this case involves a claim against a private party and was not bound to fail. Developments in transnational law leave open the possibility that an incremental development in the law reflecting customary international law norms in private law remedies might be appropriate.
Alison M. Latimer and Tamara Morgenthau acted for the Intervenor, EarthRights International.
To read the full decision, click here.
