Mr. Speaker, I am pleased to have the opportunity to speak today to Bill C-331. The international promotion and protection of human rights is something I take great interest in as a representative of a very engaged community of global citizens in Parkdale—High Park and as someone who was a former war crimes prosecutor on a Rwandan genocide tribunal in Arusha, Tanzania. I thank the NDP member opposite for moving this bill and prompting this very important discussion this morning.
Under existing law, the superior courts of the provinces and territories can hear lawsuits involving events that occur outside of Canada if there is enough of a connection to Canada. This was raised by the member for St. Albert—Edmonton. Lawsuits alleging that Canadian companies have been involved in violations of international human rights abroad that involve claims for negligence or other violations of Canadian or foreign law are based on existing bodies of law.
The question of whether the common law also allows a person to claim damages in a superior court specifically for a violation of customary international law is the issue in the case of Nevsun v. Araya, which was heard by the Supreme Court of Canada in January. That decision is under reserve, and it is important that we hear from the court on this particular issue.
Unlike the superior courts, the Federal Court generally does not handle cases against companies or individuals for actions taken outside of Canada. The Federal Court's jurisdiction is limited both by the Federal Courts Act and by the Constitution.
The Federal Court mostly hears cases involving judicial review of decisions of federal boards and tribunals, lawsuits against the federal government, and cases involving patents or maritime law. Civil claims between private parties don't usually end up in Federal Court, except in those areas.
The bill would amend the Federal Courts Act to provide that the court may exercise jurisdiction over certain cases involving violations of international law outside of Canada. As the member for New Westminster—Burnaby has said, this bill was modelled on the U.S. Alien Tort Statute, or ATS. It provides, in full, that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
The ATS has been controversial in the United States, and there has been a great deal of litigation about its scope. This has included disagreements about what kinds of claims are covered and about the application of the statute to foreign defendants and corporations, again something that has already been mentioned in the course of this morning's debate.
Bill C-331's main provision is a little more complicated than the ATS, but the idea and the targets are similar. I want to make three observations about the kinds of cases in which the Federal Court would have jurisdiction.
First, Bill C-331 appears to give the Federal Court jurisdiction over existing types of legal claims and would not create new ones. It would provide that the Federal Court would have jurisdiction to hear cases involving claims respecting conduct that “arises from a violation of international law”.
Jurisdiction delineates the scope of the court's authority, either in terms of territory or in terms of subject matter. Jurisdiction is not the same thing as the right to a legal remedy, and that is an important distinction. For example, the Federal Courts Act gives the Federal Court “jurisdiction in all cases in which relief is claimed against the Crown.” However, that does not mean that the Federal Court can address any complaint a Canadian might have about the federal government. The act gives the court jurisdiction, but the court can only give a remedy if one is provided for by Canadian law, such as the law governing Crown contracts if the claim is one of breach of contract.
Second, the bill grants jurisdiction to the Federal Court rather than to the provincial Superior Courts. The Supreme Court of Canada has held that the Federal Court can only hear certain kinds of cases. It needs permission from Parliament, in the form of a statutory grant of jurisdiction. In addition, the case must also be governed by an existing body of federal law.
Accordingly, Bill C-331 will allow the Federal Court to hear cases based on federal law, rather than on provincial law or foreign law. This could include cases where there is a violation of both international law and a federal statute, such as the Carriage by Air Act.
The third point I want to make is that lawsuits under Bill C-331 would appear to involve only defendants who are subject to the jurisdiction of Canadian courts. According to the State Immunity Act, as well as international law, foreign governments and their officials generally cannot be sued in Canadian courts. Because Bill C-331 would not amend the State Immunity Act, these rules would remain in place. Similarly, Bill C-331 would not modify the principle that Canadian courts only hear cases that have a sufficient connection to Canada. That nexus was elaborated on again by the member for St. Albert—Edmonton.
In summary, Bill C-331 could allow the Federal Court to hear some new cases involving violations of international law abroad. However, it appears that those cases would need to fit within existing legal remedies or pre-existing causes of action. They would need to be based on federal law, and they would need to have a sufficient connection to Canada.
I would also like to speak briefly to two procedural aspects of the bill. Bill C-331 would provide that the cases to which it applies would not be subject to limitation periods provided in federal law. This would allow people to bring certain old claims even if they missed the deadlines that ordinarily apply. For example, claims against the Crown in respect of matters outside of a province are ordinarily subject to a six-year limitation period. This limitation period would no longer apply under the bill.
Bill C-331 would also specify when the Federal Court could stay proceedings to allow a case to go forward in a different court. This would roughly echo the principle of forum non conveniens, which Canadian courts use to decide when to stay a lawsuit because it would be more appropriate for it to proceed in a different court.
In conclusion, I would like to thank the sponsor of the bill for bringing this important issue before the House, and I look forward to hearing more of the second reading debate on this bill.
I would also like to take this opportunity to highlight the recent appointment of the first Canadian ombudsperson for responsible enterprise, Ms. Sheri Meyerhoffer. The Minister of International Trade Diversification appointed her on April 8, 2019. The ombudsperson will review allegations of human rights abuses arising from the activities of Canadian companies abroad.
This is a role that I have heard extensively about, and not just from my constituents in Parkdale—High Park but from people around the country who share the concern of the member for New Westminster—Burnaby about ensuring that international human rights are protected not just in Canada but abroad, including when Canadian corporations are involved.
For companies found to be involved in wrongdoing abroad, the ombudsperson can recommend measures, which could include the withdrawal of certain government services, such as trade advocacy. The ombudsperson can also make specific recommendations to companies, including in relation to compensation, an apology or corporate policy changes.
Giving the ombudsman's role some enforceable powers and some teeth is a critical aspect of this mechanism.
The appointment of this ombudsperson underscores Canada's commitment to advancing responsible business conduct by Canadian companies abroad and respect for the fundamental rights of people around the world.
That is exactly the type of reform that we need more of in this country. It is the type of reform that I am sure the member for New Westminster—Burnaby would share with us, as all parliamentarians should, in terms of promoting the understanding and enforcement of international human rights obligations.