Freedom of Association and Assembly / Protests
Nemtsov v. Russia
In Progress Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Court of Appeal for British Columbia determined that Canada was the more appropriate forum for an action brought by seven Guatemalan individuals claiming damages against Tahoe Resources Inc., a Canadian company which manages the Escobal mine in Southeast Guatemala. The Plaintiffs/Appellants had been injured by a private security guard who opened fire on protesters gathered in front of the mine. They argued that although the shooting was planned, ordered and directed by the private security guard, Tahoe had authorized the use of excessive force. In allowing the appeal, the Court admitted evidence showing that the existing criminal proceedings in Guatemala were not the more appropriate forum for adjudicating the dispute. The Court also found that the chambers judge in the Supreme Court had erred in finding that a potential stand-alone civil suit in Guatemala was a more suitable forum. The Court reasoned that the limited discovery procedures available, the one-year expiration of the time limit for bringing a claim and the real risk that the Appellants would not obtain justice weighed against a finding that Guatemala was a more appropriate forum than British Columbia.
Tahoe Resources Inc. is a Canadian-owned mine in Guatemala. On April 27, 2013, private security guards employed by Tahoe shot and injured Adolfo Agustín García and six other Guatemalan individuals. The incident occurred during a protest against the company in which the individuals took part. The private security manager, Alberto Rotondo, and Tahoe were aware of the ongoing protests and the opposition against the operations of the mine. During the protests, the individuals assembled in front of the mine and, according to their claim, “the security guards opened fire on the protestors using weapons that included shotguns, pepper spray, buckshot and rubber bullets”.
A Guatemalan prosecutor charged Rotondo with assault, aggravated assault and obstruction of justice. No charges were brought against Tahoe or its Guatemalan subsidiary, Minera San Rafael S.A. (“MSR”), in connection with the shootings. At the Appellants’ request, they were joined as civil complainants in the criminal proceeding (as is permitted under Guatemalan law), and, within that derivative proceeding, they seek compensation.
On June 18, 2014, the seven Appellants filed a notice of civil claim against Tahoe in the Supreme Court of British Columbia. They argued that the shooting was planned, ordered and directed by Rotondo and that Tahoe authorized the use of excessive force.
In the claim they pleaded three causes of action against Tahoe: 1) direct liability for battery; 2) vicarious liability for battery; and 3) negligence. Tahoe then filed an application requesting a stay of the proceedings because Guatemala was a more convenient forum. The chambers judge granted Tahoe’s application and determined that Guatemala was the more appropriate forum. García and the other six individuals appealed the Supreme Court’s decision.
Justice Nicole J. Garson delivered the opinion of the Court of Appeal for British Columbia.
The Judge first considered new evidence the Appellants sought to introduce in connection with the Guatemalan criminal proceedings. The new evidence, none of which was disputed by Tahoe, concerned Rotondo’s flight to Peru, his subsequent house arrest there and the institution of extradition proceedings. Rotondo is opposing extradition and the Guatemalan proceedings against him have been adjourned indefinitely. Justice Garson admitted this evidence which, she said, lead “to the inescapable conclusion that the extant Guatemalan criminal proceeding – to which the appellants’ civil compensation claims have been joined – is not a more appropriate forum for adjudicating the dispute”. [para. 71].
The Judge then turned to the stand-alone civil suit focusing on three factors: 1) the Guatemalan discovery procedures for civil suits; 2) the limitation period for bringing civil suits in Guatemala; and 3) the risk of unfairness in the Guatemalan justice system, the Appellants having argued that Guatemala was not a more convenient forum because of systemic corruption and a long history of impunity.
Justice Garson considered the differences between Guatemalan and British Columbia discovery procedures, which had been presented by the Appellants’ expert evidence with which the Respondent’s expert did not take issue. She said that the evidence regarding the difficulties the appellants will face in bringing a stand-alone civil suit against Tahoe in Guatemala, namely that they can’t discover documents in Tahoe’s possession without going through a “complex and time consuming process”, points away from finding that Guatemala is clearly the more appropriate forum for bringing tort claims against a British Columbia corporate defendant.
Both parties having accepted that the one-year limitation period had expired, Justice Garson found that the Appellants had properly sought juridical advantages by commencing their claim in British Columbia against a British Columbia corporate defendant. Further, she said that the Appellants had been diligent and were not forum shopping and concluded that the expiration of the limitation period factors against finding that Guatemala is clearly a more appropriate forum especially because it casts doubt on whether the Appellants would be able to pursue a civil suit against Tahoe in Guatemala at all.
Finally Justice Garson considered the risk of unfairness in the Guatemalan justice system taking into consideration expert evidence. One of the experts referenced by the Judge asserted that given the economic ties between Tahoe and the government of Guatemala there was a real risk that the appellants would not get a fair trial in Guatemala. [para. 99]
The Judge also discussed the Appellants’ argument that endemic corruption in Guatemala’s legal system reaches all the levels of the Judiciary. [para. 100] The Appellants relied on expert evidence that pointed out the fact that a commission was created by “Guatemalan officials and members of the international community to investigate powerful criminals and corrupt politicians because of the Guatemalan criminal justice system’s endemic weakness.” [para. 100]
The Judge further considered another expert testimony that “there is no assurance of a fair trial and impartial legal proceeding in Guatemala.” [para. 102] That expert also indicated that Guatemala’s legal system does not demonstrate any concern for human rights and tends to favor the powerful. [para. 102]
Finally, the Judge examined whether there was a real risk that Guatemala may not offer a fair trial to the Appellants. She said that the “evidence of weakness in the Guatemalan justice system ought not to be ignored.” Comparing the “real risk” analysis with the one used in England, Justice Garson determined that in Canada it is “not necessary to stipulate a specific evidentiary threshold for the risk of unfairness since it is just one factor of many to weigh in a unified forum non conveniens analysis.” [para. 125] She also indicated that the “appellants will encounter difficulty in receiving a fair trial against a powerful international company whose mining interests in Guatemala align with the political interests of the Guatemalan state.” [para. 130]
For these reasons, the Judge determined that British Columbia was the more appropriate forum for the Appellants’ claim.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court of Appeal’s decision is important because it recognized that a corrupt legal system would be unable or unwilling to determine that a private company is liable for exercising violence against peaceful speakers and protesters so denying plaintiffs the right to a fair trial.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Sections 7, 11
Case significance refers to how influential the case is and how its significance changes over time.
The Court of Appeal of British Columbia is the highest appellate court in the province.
Let us know if you notice errors or if the case analysis needs revision.