Canada: British Columbia Lawsuit By Guatemalan Plaintiffs Against Tahoe Resources Inc. Stayed On Forum Non Conveniens Grounds

In a decision with important implications for Canadian companies with foreign operations, the Supreme Court of British Columbia declined jurisdiction to hear a claim brought against Tahoe Resources Inc. (Tahoe) in British Columbia.

On June 18, 2014, seven Guatemalan residents brought a claim against Tahoe in the Supreme Court of British Columbia seeking damages, including punitive damages, for negligence and battery based on various grounds, including alleged human rights violations(the Claim). The Claim relates to an incident that occurred on April 27, 2013 outside of the Escobal Mine in San Rafael Las Flores, Guatemala, which is operated by Tahoe's wholly-owned subsidiary, Minera San Rafael S.A. (MSR). On that date, a group of individuals, including the plaintiffs, assembled in front of the gates of the Escobal Mine. The plaintiffs allege that they suffered multiple bodily injuries as a result of actions taken by mine security personnel.

On November 9, 2015, the Supreme Court of British Columbia issued its ruling on the jurisdictional application brought by Tahoe, in which Madam Justice Gerow granted Tahoe's jurisdictional application, declining to hear the action as Guatemala is clearly the more appropriate forum for adjudicating the claim (Garcia v. Tahoe Resources Inc., 2015 BCSC 2045).

Tahoe's legal team was led by McMillan LLP who worked in collaboration with Tahoe's counsel based in Reno, Nevada and counsel based in Guatemala. The McMillan team was led by Karen Carteri and also consisted of Amandeep Sandhu and Robert Wisner.

Novel Tort Claims in Canada

The Tahoe case is one of three cases that have recently been launched in Canada against parent companies with subsidiaries operating in foreign countries. In the Tahoe case, the plaintiffs claimed that Tahoe expressly or implicitly authorized battery by security personnel. Alternatively, the plaintiffs claimed that Tahoe owed them a duty of care arising in part out of its corporate social responsibility policies, and that it breached that duty in part as a result of Tahoe's alleged failure to establish procedures for security personnel to comply with international guidelines pertaining to the use of force.

A proposed class action has also been brought by three Eritreans against Nevsun Resources in British Columbia alleging among other things that forced labour was used at the Bisha Mine in Eritrea in violation of international law, and by Guatemalan plaintiffs against Hudbay Minerals in Ontario alleging among other things that human rights abuses, such as sexual assault, were perpetrated by the companies' security personnel. While each case has very different facts and while each case includes other causes of action, they each contain a common theme of alleging violation of international human rights principles or guidelines as a basis in tort to make a Canadian company responsible for the acts of its foreign subsidiaries or agents.

Hudbay sought to have the action against it struck on the basis that there was no legal basis for the claim. The Ontario court dismissed that application, leaving the matter of whether such a claim can be successfully made in Canada to be determined at trial. Tahoe applied to have the action against it stayed based on the jurisdictional principle of forum non conveniens, saying that Guatemala was clearly the more appropriate forum for determination of the plaintiffs' claims in that case. Nevsun Resources has brought a forum non conveniens motion and a motion to strike, which motions are scheduled to be heard in early 2016.

The Decision to Decline Jurisdiction

Forum non conveniens is a legal doctrine by which courts may refuse to exercise jurisdiction over matters where there is a more appropriate forum available to the parties. A defendant must meet a high threshold to succeed on a forum non conveniens application, as it must establish that a foreign jurisdiction is clearly the more appropriate forum for determination of the matters in dispute.

The factors that a court in British Columbia uses to determine whether or not it is an appropriate forum is found in section 11 of the Court Jurisdiction and Proceedings Transfer Act (the CJPTA). This non-exhaustive list of factors include:

  1. the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,
  2. the law to be applied to issues in the proceeding,
  3. the desirability of avoiding multiplicity of legal proceedings,
  4. the desirability of avoiding conflicting decisions in different courts,
  5. the enforcement of an eventual judgment, and
  6. the fair and efficient working of the Canadian legal system as a whole.

As per the Supreme Court of Canada's decision in Club Resorts Ltd. v. Van Breda, the objective of the court in deciding a forum non conveniens application is to ensure fairness to the parties and an efficient resolution of their dispute.

In the Tahoe case, the central feature of the plaintiffs' submissions on the forum non conveniens motion was that the Guatemalan legal system is corrupt and that they would be unable to receive a fair trial in Guatemala. The plaintiffs also asserted that the Claim was centered in Canada because the central issue is whether a Canadian company has responsibility under Canadian law for security personnel hired to protect its main asset.

Madam Justice Gerow made the following findings as they relate to each of the factors outlined in section 11(2) of the CJPTA:

comparative convenience of the parties and witnesses 

  • trying the action in British Columbia would result in considerably greater inconvenience and expenses for the parties and witnesses;
  • the alleged battery occurred in Guatemala, none of the plaintiffs speak English, and all medical, financial and related records are located in Guatemala and most, if not all, are in Spanish;
  • the majority of Tahoe's management and staff, who might be called as witnesses, live and work in Reno, Nevada, and the majority of Tahoe's documents are in Nevada;
  • most, if not all, of the witnesses will have to travel to Vancouver from Guatemala and Reno, and many will only speak Spanish;
  • where the ordinary factors set out in the CJPTA and case law point to Guatemala as the more appropriate forum, the question is not whether Canada's legal system is fairer and more efficient. It is whether the foreign legal system is capable of providing justice, and the plaintiff must take the forum as he finds it, even if it is less advantageous in certain respects, unless he can establish that substantial justice cannot be done in the appropriate forum;
  • while Guatemala's legal system may be imperfect, it functions in a meaningful way, and parties can pursue rights and remedies such as the ones raised by the plaintiffs in their claim;
  • Guatemalans who have lesser means to pursue claims are supported by organizations like El Centro de Accion Legal-Ambiental y Social de Guatemala (CALAS), which provides free legal assistance. The plaintiffs are using the benefit of such representation;
  • the evidence is that both the alleged battery and the alleged breaches of duty on the part of Tahoe occurred in Guatemala and perhaps Nevada, and as such the plaintiffs' assertion that the case is centered in Canada is not supported by their pleadings;
  • this is not a case where the plaintiffs will not have a trial or hearing in the other jurisdiction. The plaintiffs are advancing a compensation claim through existing criminal proceedings in Guatemala, and they could also commence a civil action in Guatemala;

choice of law

  • the law applicable to tort claims is the law of the place where the activity occurred and in this case that was in Guatemala; 
  • further, as the breaches of the duty alleged in the notice of civil claim occurred in Guatemala, it is likely that Guatemalan law should be applied to the plaintiffs' claim;

avoiding multiplicity of legal proceedings

  • following the incident, the Guatemalan public prosecution authority, known as the Ministerio Publico, laid criminal charges against Alberto Rotondo, MSR's contracted security manager. Since the plaintiffs are seeking compensatory damages against Rotondo through the ongoing criminal proceedings in Guatemala, and since they are seeking damages in British Columbia against Tahoe for the same injuries arising out of the same incident, there is a possibility of reaching conflicting decisions and a multiplicity of legal proceedings arising out of the same cause of action;

enforcing foreign judgments

  • there is no evidence to suggest that a Guatemalan judgment could not be enforced by the plaintiffs in British Columbia;

fair and efficient working of the Canadian legal system

  • in terms of the direct liability the plaintiffs allege against Tahoe, while it is argued by the plaintiffs, it is far from clear in the Choc decision that such a duty will be established, as the claim is noted in Choc as being a novel one;
  • plaintiffs have been able to obtain documents and evidence in Guatemala, and expert evidence has outlined the procedures for obtaining and submitting evidence in civil procedures in Guatemala;
  • if the claim were to proceed in British Columbia, non-party witnesses would have to be compelled from Guatemala or other jurisdictions, which would present significant challenges; and
  • public interest requires that Canadian courts proceed extremely cautiously in finding that a foreign court is incapable of providing justice to its own citizens, and the principle of comity must not be ignored.

Having considered the above factors, the case law, evidence and submissions, Madam Justice Gerow concluded that Guatemala is clearly the more appropriate forum for adjudicating the plaintiffs' claims for damages relating to their injuries, and she exercised her discretion to decline jurisdiction in this case. Among other things, this case demonstrates that generalized arguments and evidence about corruption in foreign courts and the existence of a potentially novel domestic claim do not prevent a case from being stayed within the broad range of well established forum non conveniens factors and principles.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2015

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Robert Wisner
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions