[RE: Nevsun Resources Ltd. v. Araya, 2020 SCC 5]

Hello, Justices, my name is [●], and I am here on behalf of my client, Araya, representing Eritrean workers. Our client seeks to uphold the decision to dismiss Nevsun’s motion-to-strike and have their appeal dismissed. Our client’s claim not only raises issues of procedural fairness in the domestic sphere, it also concerns the importance of Canada’s commitment to respecting the fundamental principles of international human rights.

In support of Araya’s position that Nevsun’s has not satisfied the “plain and obvious” test for striking the pleadings, I will be making 2 submissions today. My first submission is that, contrary to Nevsun, the question of whether international laws apply is not “plain and obvious” enough to suggest striking the pleadings. My second submission is that my client’s pleadings based on international torts (forced labor, slavery, cruel, inhuman or degrading treatment, and crimes against humanity)–given the possibility of either a novel tort or adopting international law–discloses a reasonable cause of action and chance of success.

To start, the threshold for it being “plain and obvious” that a claim has no chance of success is a high one. Justice Abrioux correctly identifies that the court could recognize either [1] the breach of customary international law or [2] a new tort based on adopting customary norms. Both of these options are consistent with the principle that international law is adopted into Canadian common law (unless there is contrary domestic legislation). The threshold for striking a claim as being “plain and obvious” of having no reasonable prospect of success is that the claim is “manifestly incapable of being proven” (Imperial Tobacco at para 17). This is an incredibly high threshold to meet because only well established questions of law are incapable of proof as they have already been answered.

It is important to clarify that adopting customary international law is also not manifestly incapable of proof just because it is possibly a novel claim. As the Court noted in Imperial Tobacco, “The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.” (para 21) Given the facts of this case, there is clearly a legal gap to be explored–an arguable claim–and the question of whether it is incapable of proof is yet to be decided. Until this is decided and the gaps are fully filled, it cannot be struck as having no reasonable prospect of success.

In the same vein, turning now to Canada’s commitments to international principles and this giving space to the possibility of hearing new torts. It is crucial to recognize the facts of this case cut to the core of the doctrine of jus cogens. (E.g. contract, labour, and admin law are accepted without proof.) Crimes against humanity, like slavery, are well established prohibition and violates one of the most basic human rights. My client was subjected to “violent, cruel, inhuman and degrading treatment.” They were “beaten” until they lost consciousness, “left in the hot sun” for over 12 hours, and had their families threatened if they sought remedy. Such acts “shock[s] the conscience of humanity” (SCC, quoting Bassiuni, para 124). Still, a novel claim of recognizing a new domestic tort is not the only way to proceed–alternatively, we can focus on international laws applying directly in virtue of Canada’s commitments to them.

These norms are not only rooted in the common law (in adopting international norms), but also in the foundation of Canadian public policy. As Laane [1949] (SCC, para 46) showed, the Court is reluctant to enforce decrees contrary to Canadian public policy, so the Courts should all the more adopt international norms consistent with Canadian public policy. There are no international customs prescribing the motion to strike (as Nevsun may argue), but there are international customs prescribing the investigation of my client’s claim.

In conclusion, our client submits that Nevsun’s motion to strike (and their subsequent appeal) be dismissed with costs. This case requires a look into how we understand procedural fairness in the context of the commitments Canada shares with other international powers. At the minimum, we must recognize that some violations to human rights are unacceptable too all and calls for legal action. Subject to any questions, these are my submissions. Thank you, Justices.