On October 6, 2016, the British Columbia Supreme Court ruled that a lawsuit by Eritrean miners, who allege they were forced to work in a mine owned by Nevsun Resources Ltd, a Canadian mining company, can proceed to trial. Vancouver-based Nevsun had argued that the case should be dismissed and that any suit should be properly heard in Eritrea. Justice Abrioux disagreed, stating that “there is sufficient cogent evidence from which I can conclude that there is a real risk that the plaintiffs could not be provided with justice in Eritrea,” thereby paving the way for an unprecedented trial in a Canadian court. Justice Abrioux stated that “claims of crimes against humanity, slavery, forced labour and torture can go forward against Nevsun.” Continue Reading BC Case Against Canadian Mining Company for Overseas Human Rights Violations to Proceed to Trial
Christopher Burkett is an experienced trial advocate, having appeared before a variety of administrative tribunals, at all levels of trial court, and the Court of Appeal for Ontario. Mr. Burkett's broad litigation and advocacy practice specifically focuses in the areas of labour and employment law, administrative and public law, professional discipline, corporate anti-bribery compliance, and criminal matters. Prior to joining Baker McKenzie in 2011, Mr. Burkett was an Assistant Crown Attorney, where he was the lead prosecutor on numerous criminal trials; including serious commercial fraud prosecutions. Mr. Burkett's experience extends to matters involving internal investigations, administrative tribunals, judicial review applications, injunctions, trials, and appeals.
Hot off the press. A Report released late last week by World Vision Canada concludes that Canadian consumers are unwittingly buying goods made by child and forced labourers deep in the supply chains of Canadian companies. According to the Report, Canadian businesses regularly import goods from countries with high-rates of child and forced labour, particularly in the following sectors: clothing, retail, food, and electronics.
We recently discussed the rising number of claims against Canadian companies for alleged human rights violations in their overseas operations or supply chains. In that article we described the ongoing class action lawsuit against Loblaws and Joe Fresh launched by Bangladeshi garment workers in response to the 2013 Rana Plaza collapse in Dhaka, Bangladesh. Click here for a link to the article.
We also commented on a general increase in litigation against Canadian multinational corporations, including the current case against Toronto-based, Hudbay Minerals Inc., which was brought by a group of indigenous Guatemalan Mayans for human rights violations related to a mining venture.
The reputational risks associated with these cases are serious, particularly in the age of online media and investor activism. On April 3, 2016, The New York Times published a front-page article on the Hudbay Minerals Inc. case entitled, ‘Outcry Echoes Up to Canada’. Continue Reading Global Human Rights Compliance & Litigation Update: Hudbay Minerals Inc. Lawsuit Receives International Media Coverage
The U.S. Justice Department announced last week that they were dropping their court action in which they sought to compel Apple to create a backdoor to override their existing iPhone passcode protection software.
If you followed this story, you know that a public and controversial battle ensued between the Justice Department and Apple over access to the iPhone used by Syed Farook, one of the perpetrators of the San Bernardino terrorist attack.
The Thomson Reuters Foundation has announced the upcoming launch of the Stop Slavery Award. The purpose of this award is to honour and recognize businesses that have excelled in their efforts to eradicate forced labour from their supply chains.
Loblaws, Joe Fresh, Nevsun Resources, Hudbay Minerals, and Tahoe Resources. What do these Canadian companies have in common? They have been targeted in significant lawsuits in Canadian courts for alleged labour and/or human rights violations in their overseas operations or supply chains.
Canadian multinational corporations must take note that our courts are revealing a new willingness to expand their jurisdictional reach in light of modern commercial realities and perceived corporate impunity (see: Chevron Corp. v. Yaiguage, 2015 SCC 42), and they are keeping an open mind as to whether a duty of care exists between Canadian companies and the foreign workers who produce their products (see: Choc v. Hudbay Minerals Inc., 2013 ONSC 1414). This emerging trend in Canada is taking place against the backdrop of hardening and expanding international business and human rights standards and norms.
A key test case for this shift in Canada is the ongoing class action lawsuit against Loblaws and Joe Fresh (the “Loblaws Defendants“), which was launched by Bangladeshi garment workers in response to the well-known 2013 Rana Plaza collapse in Dhaka, Bangladesh, which killed 1,130 workers.
Any employer who has faced an accommodation-related claim understands that assessing the scope and extent of their duty to accommodate is often a challenging process.
Some helpful direction arrived in Poursadi v. Bentley leathers (2015 HRTO 138), which pitted Ms. Robabeh Poursadi, a retail store manager, against her employer, Bentley Leathers Inc. (Bentley), in a case which ultimately turned on the identification of the employee’s essential duties.
The decision from the Human Rights Tribunal of Ontario (HRTO) provides employers with some further guidance for navigating the often murky waters of accommodating employees, particularly when an employee’s essential duties are in dispute (which is often). One key to success in these cases, as this decision illustrates, is being prepared to provide a sound evidentiary basis for what constitutes an employee’s essential duties. Continue Reading ‘Essential Duties’ and Accommodation: How do you draw the line?
Increasingly, legislators in a variety of jurisdictions have been placing social reporting obligations on multinational employers, particularly in relation to corporate efforts to combat forced labour and trafficking in supply chains. Multinational entities with complex supply chains that stretch around the globe need to take note of the shifting landscape away from voluntary reporting on CSR efforts to mandatory disclosure reports, specifically in relation to global labour rights, practices, and policies.
Chris Burkett, a member of Baker & McKenzie’s Labour, Employment and Employment Benefits Practice Group, has written on this trend, most recently in The Guardian, which can be viewed online here: http://tinyurl.com/nklbxcv.
On July 8, 2013, the Ontario Superior Court released an important decision for multi-national employers in favour of the employer, Four Seasons Hotels Ltd, represented by Christopher Burkett and Cherrine Chow of Baker & McKenzie.