COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Garcia v. Tahoe Resources Inc.,

2017 BCCA 39

Date: 20170126

Docket: CA43295

Between:

Adolfo Agustin
Garcia, Luis Fernando Garcia Monroy,

Erick Fernando
Castillo Pérez, Artemio Humberto Castillo Herrera,
Wilmer Francisco Pérez Martinez, Noé Aguilar Castillo, and
Misael Eberto Martinez Sasvin

Appellants

(Plaintiffs)

And

Tahoe Resources
Inc.

Respondent

(Defendant)

And

Amnesty
International Canada

Intervenor

Before:

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Garson

The Honourable Madam Justice Dickson

On appeal from:  An
order of the Supreme Court of British Columbia, dated November 9, 2015 (
Garcia
v. Tahoe Resources Inc.
, 2015 BCSC 2045, Vancouver Docket S144726).

Counsel for the Appellants:

J. Fiorante, Q.C.

R. Mogerman

J. Winstanely

Counsel for the Respondent:

P. Reardon

A. Sandhu

L. Yang

Intervenors, Amnesty International Canada:

P. Champ

J. Klinck

Place and Date of Hearing:

Vancouver, British
  Columbia

November 1, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 26, 2017

Written Reasons by:

The Honourable Madam Justice Garson

Concurred in by:

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Dickson

Summary:

The
appellants appeal from a chambers order granting the respondents application
for a stay based on forum non conveniens under s. 11 of the Court
Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28. The
chambers judge held that an extant criminal proceeding and a potential civil
suit in Guatemala made Guatemala clearly the more appropriate forum for the
appellants claims. The chambers judge also found that the appellants had not
established that justice could not be done in Guatemala. On appeal, the
appellants seek admission of new evidence relevant to the extant criminal
proceeding and to the risk of unfairness in the Guatemalan judiciary. The
appellants say the chambers judge erred in the legal test she applied when
considering the appellants evidence of corruption and injustice in the
Guatemalan judiciary. Held: appellants application to admit new evidence
granted in part; appeal allowed; respondents application for a stay dismissed.
The new evidence concerning the extant criminal proceeding casts doubt on
whether the proceeding will go forward in a timely manner or at all; this
evidence is admitted because it is likely to have affected the outcome of the
chambers judges decision. The new evidence leads to the inescapable conclusion
that the extant criminal proceeding is not a clearly more appropriate forum for
the appellants claims. The judge erred in concluding that a potential civil
suit in Guatemala is also clearly a more appropriate forum. Three factors weigh
against such a finding: (1) the limited discovery procedures available to the
appellants; (2) the expiration of the limitation period for bringing a civil
suit; and (3) the real risk that the appellants will not obtain justice in
Guatemala. Evidence of corruption and injustice in a defendants proposed
alternate forum should be considered as a single factor among all relevant
factors and concerns to be weighed together in one stage in the forum non
conveniens analysis with the overall burden on the defendant to establish that
the alternate forum is in a better position to dispose of the litigation fairly
and efficiently. The judge erred by placing the onus on the appellants to prove
that Guatemala was incapable of providing justice.

Reasons
for Judgment of the Honourable Madam Justice Garson:

[1]

On April 27, 2013, private security personnel employed at a Canadian-owned
mine in Guatemala allegedly shot and injured Adolfo Agustin Garcia as well as
six other Guatemalan individuals during a protest outside the Escobal mine. The
mine is owned by the respondent, Tahoe Resources Inc., through its wholly owned
subsidiaries. The seven plaintiffs commenced an action for damages against
Tahoe in the Supreme Court of British Columbia. Tahoe, a British Columbia
company, conceded that the Court had jurisdiction over the claim but applied
for an order that the court exercise its discretion to decline jurisdiction on
the grounds that Guatemala was the more appropriate forum for adjudicating the plaintiffs
claims. Madam Justice Gerow granted the
forum non conveniens
application
sought by Tahoe and stayed the British Columbia action.

[2]

The application primarily turned on the judges assessment of the plaintiffs
ability to obtain a fair trial in Guatemala. The judge concluded that they
could. The plaintiffs appeal from the judges order. (For consistency, I will
refer to them as the appellants hereafter, even when discussing their role as
plaintiffs in the Guatemala and British Columbia proceedings.)

[3]

On this appeal, the appellants contend that the judge erred in law in
imposing on them the burden of proving that justice could never be done in
Guatemala; they say that the correct test is whether the evidence discloses a
real risk of an unfair trial process in the foreign court. Tahoe says that the
appellants arguments demonstrate a parochial attitude towards countries that
follow the civil law procedural tradition. It says that the judge properly
concluded that the appellants evidence did not meet the necessary standard of
proof to justify a refusal to decline jurisdiction.

[4]

On appeal, the appellants seek to introduce new evidence. This evidence
touches upon developments in the related criminal proceeding in Guatemala and provides
further opinions concerning the Guatemalan legal system. Tahoe opposes the
introduction of the new evidence.

[5]

Amnesty International Canada intervenes. It supports the appellants
contention that the judge erred in her articulation of the legal test to be
applied in assessing the risk that the appellants could not obtain a fair trial
in Guatemala.

I. Background Facts to the Claim

A. The April 27, 2013, Incident

[6]

Through its wholly owned subsidiaries, Tahoe manages and controls all significant
aspects of the operation of the Escobal mine, a silver, gold, lead, and zinc
mine in Southeast Guatemala in the municipality of San Rafael Las Flores.

[7]

Six of the appellants are farmers and one is a student; they are all residents
of San Rafael Las Flores.

[8]

On April 27, 2013, the appellants participated in a protest outside the
gates of the mine.

[9]

Tahoes security manager, Alberto Rotondo DallOrso, was concerned that
the protestors would interfere with the operation of the mine. He and Tahoe
were aware of strong opposition to the mine within the local community. Leading
up to the day of the incident, there had been a number of violent conflicts at
several mines between protestors, mine staff, and local officials. On the
evening of April 27, 2013, the protestors assembled in front of the gates to
the mine. In their notice of civil claim, the appellants allege that security
guards opened the mine gates and opened fire on the protestors using weapons
that included shotguns, pepper spray, buckshot and rubber bullets.

[10]

The appellants plead that the shooting was planned, ordered, and
directed by Rotondo and that Tahoe expressly or implicitly authorized the use
of excessive force by Rotondo and other security personnel, or was negligent in
failing to prevent Rotondo and other security personnel from using excessive
force.

[11]

The appellants allege that the security personnel acted at the direction
of Rotondo, the Security Manager at the mine.

[12]

The appellants allege that, after the incident, Rotondo instructed
security personnel to falsify accounts of the shooting and destroy or cover up
evidence.

B. Criminal Proceedings

[13]

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.

[14]

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.

C. Escobal Mine Ownership and Management Structure

[15]

Three of Tahoes directors reside in Reno, Nevada, and five reside in
Canada. The President, Chief Operating Officer, and General Counsel of Tahoe all
reside in Reno and work from Tahoes U.S. offices. Tahoe has no office in
British Columbia other than a registered and records office necessary to meet
its statutory requirements as a reporting British Columbia company. Tahoe has
no officers or employees employed in British Columbia. Tahoe holds its annual
general meetings in either Vancouver or Toronto. Its directors meet once or
twice a year in Vancouver.

[16]

Don Gray, the General Manager and Country Manager of MSR at the time of
the incident and current Vice President of Operations for Tahoe, is a resident
of Guatemala.

[17]

Tahoe is the parent company of MSR, a Guatemalan company which owns the
Escobal mine.

[18]

Gray has responsibility for the day-to-day operation of the mine. Rotondo
reported to Gray. On security matters, Gray reported to Ron Clayton, the
President and Chief Operating Officer of Tahoe who is based in Reno.

[19]

The employment contracts concerning Rotondo and other security personnel
are in Spanish.

D. Tahoes Corporate Social Responsibility Initiatives

[20]

The appellants plead that Tahoe has direct responsibility for the
conduct of Rotondo. As part of that liability they refer to Tahoes Corporate
Social Responsibility (CSR) initiatives.

[21]

Gray deposed that [a]s a demonstration of genuine commitment to the region
and sensitivity to socio-economic issues in the communities in which MSR
operates, numerous CSR initiatives have been implemented... He describes how Tahoes
Board of Directors formed a Health, Safety, Environment, and Community
Committee (HSEC) to oversee health, safety, environmental and other community
issues at a high level. Tahoe also established a CSR Steering Committee which
includes executive officers of Tahoe. Tahoe has retained CSR consultants to
assist it in complying with various business and human rights conventions. MSR
also employs personnel locally to build relations with the local community.

II. Pleadings

[22]

On June 18, 2014, the appellants filed a notice of civil claim against
Tahoe in the Supreme Court of British Columbia.

[23]

The appellants plead three causes of action against Tahoe for which they
seek damages, including punitive damages: (1) direct liability for battery; (2)
vicarious liability for battery; and (3) negligence.

[24]

On the direct liability claim, the appellants plead that Tahoe controls
all significant aspects of MSR and the Escobal mine and expressly or implicitly
authorized the unlawful conduct of Rotondo and the security personnel.

[25]

On the vicarious liability claim, the appellants plead that MSR
expressly or implicitly authorized the unlawful conduct of Rotondo and the
security personnel and that, as the parent company of MSR, Tahoe is vicariously
liable for the battery. Alternatively, the appellants assert that Tahoe is
vicariously liable for the battery committed by Rotondo and the security
personnel as parent company of MSR who contracted for their services.

[26]

On the negligence claim, the appellants plead that Tahoe owed them a
duty of care because it controlled all significant aspects of the operation of
MSR and the Escobal mine, including establishment and implementation of
security and community relations policies and practices in Guatemala and
strategies for dealing with opposition to the mine. They also plead that Tahoe
owed them a duty of care given Tahoes knowledge of the extensive local
opposition to the mine and the risk of harm to protesters if Tahoes security
personnel did not adhere to its CSR policies. The appellants assert that Tahoe
breached its duty of care by failing to conduct adequate background checks on
Rotondo and the security personnel, failing to establish and enforce clear
rules of engagement for them, failing to adequately monitor them, and failing
to ensure they adhered to Tahoes CSR policies. They allege that Tahoes CSR
policies governed the manner in which it supervised its operations and its
security personnel. That policy bound Tahoe to observe international
humanitarian law and local law, including the proportional use of force, and
the adoption of policies respecting human rights. The location where Tahoe
implemented and oversaw its alleged CSR policies  Reno, Nevada, or British
Columbia or both  is important to the analysis that follows.

[27]

The appellants claim punitive damages for the alleged malicious,
arbitrary, highly reprehensible conduct of Tahoe.

III. Tahoes
Forum Non Conveniens
Application

[28]

On August 8, 2014, Tahoe filed a notice of application seeking an order
staying the proceeding on the grounds that Guatemala was a more appropriate
forum for the action.

IV. Reasons for Judgment

[29]

The judge granted Tahoes
forum non conveniens
application and
ordered a stay of proceedings because she found that Tahoe had satisfied its
burden of establishing that Guatemala was clearly the more appropriate forum
for determination of the matters in dispute.

[30]

She noted that the appellants characterized the central issue as whether
Tahoe has responsibility under Canadian law for the brutal conduct of security
personnel hired to protect its prize asset (at para. 4). She noted that
the appellants said that question can only be answered in a Canadian court as
they have no faith in the Guatemalan legal system to hold the company
accountable (at para. 4).

[31]

She noted that the onus was on the defendant Tahoe to show why the court
should decline to exercise its jurisdiction (at para. 31).

[32]

The judge found that s. 11 of the
Court Jurisdiction and
Proceedings Transfer Act
, S.B.C. 2003, c. 28 [
CJPTA
], sets out
the principles which govern the Supreme Courts discretion to decline
jurisdiction over a proceeding when there is a more appropriate forum for the
action.

Section 11(2) of the
CJPTA
provides a non-exhaustive list
of factors relevant to the proceeding to consider when determining whether to
decline jurisdiction. What emerges from the s. 11(2) analysis is that the
defendant must establish an alternate forum that is clearly more appropriate:
Club
Resorts Ltd. v. Van Breda
, 2012 SCC 17 at paras. 103, 108 and 110.

[33]

The judge began her analysis of the s. 11(2) factors by noting that
all the appellants reside in Guatemala, their alleged injuries and losses
occurred in Guatemala, and the evidence is in either Guatemala or Nevada. She
noted that all the evidence of the appellants is in Spanish. MSR, the direct
operator of the mine, is a Guatemalan company and all of its employees are
resident in Guatemala or Reno. MSR carries on business in Guatemala. She noted
that Tahoe carries on business in Reno, Nevada, and that its operating officers
were located there, not in British Columbia.

[34]

The judge decided that the ordinary factors set out in the
CJPTA
pointed to Guatemala as the more appropriate forum. She rejected the appellants
assertion that systemic corruption in the Guatemalan legal system posed a
serious risk that they would not obtain a fair trial. She identified the issue
as whether the foreign legal system is capable of providing justice. She said:

[64]      In my view, 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 Canadas legal system
is fairer and more efficient than Guatemalas legal system.
It is whether
the foreign legal system is capable of providing justice
. As stated in
Connelly
,
where the
forum non conveniens
analysis points to a clearly more
appropriate forum, then the plaintiff must take the forum as he finds it even
if it is in certain respects less advantageous to him unless he can establish
that substantial justice cannot be done in the appropriate forum.

[Emphasis added.]

[35]

She found that the evidence of corruption within the Guatemalan criminal
justice system was not relevant to the appellants civil claims for personal
injury:

[65]      The plaintiffs experts refer to corruption in the
context of criminal prosecutions against state officials or organized crime
syndicates, not cases involving claims for personal injuries such as this one.

[66]      It is clear from the
evidence that Guatemala has some problems with its legal system. However, the
evidence, even from the plaintiffs experts, is that Guatemala has been
involved in justice reform since the early 2000s. While its justice system may
be imperfect, it functions in a meaningful way. It provides laws and procedures
through which parties can, and do, pursue rights and remedies such as the ones
raised by the plaintiffs in their notice of civil claim. Further, Guatemalan
citizens who have lesser means to pursue their claims are supported by
organizations like El Centro de Accion Legal-Ambiental y Social de Guatemala
(CALAS), which provides free legal assistance to claimants. The plaintiffs in
this case have the benefit of such representation and are using it.

[36]

She concluded:

[105]    In my view, the public
interest requires that Canadian courts proceed extremely cautiously in finding
that a foreign court is incapable of providing justice to its own citizens. To
hold otherwise is to ignore the principle of comity and risk that other
jurisdictions will treat the Canadian judicial system with similar disregard.
In this case, as noted earlier, Guatemala has a functioning legal system for
both civil and criminal cases, and the plaintiffs are already seeking
compensation for their injuries in Guatemala.

[37]

She found that the alleged battery and breaches of duty by Tahoe
occurred in Guatemala and perhaps Nevada.

[38]

She determined that Tahoe could be added to the criminal proceeding
against Rotondo or sued civilly:

[71]      The plaintiffs assert Tahoe will not be a party to
the action in Guatemala and that is a very significant factor in determining
Guatemala is not a convenient forum. However,
the evidence is that parties
can be added to both the criminal proceedings and that a separate civil suit
can be commenced
. The expert evidence is that Tahoe can be held vicariously
liable if its personnel directed or supervised the alleged battery. MSR could
also be found vicariously liable.

[72]
This is not a case where the plaintiffs will not
have a trial or hearing in the other jurisdiction
. They are advancing a
claim for compensation for their injuries in the criminal proceedings in
Guatemala. They are able to add other parties. The plaintiffs can also commence
a civil action in Guatemala.

[Emphasis added.]

[39]

She noted that Mr. Gray was responsible for overseeing all national
and local CSR initiatives and that all those activities occurred in Guatemala.

[40]

She held that the choice of law (Guatemala), the desirability of
avoiding multiplicity of legal proceedings and conflicting decisions, and the
ability to enforce an eventual judgment all favoured Guatemala.

[41]

She noted that six of the seven appellants were joined to the criminal
proceeding and could obtain compensation for their injuries in that proceeding.
She considered the appellants argument that in Guatemala they cannot advance a
claim directly against Tahoe for its negligence or for vicarious liability by
piercing the corporate veil, and therefore, there is a juridical advantage to
proceeding in British Columbia. The judge noted that it was far from clear whether
such a novel negligence claim against a parent company for the activities of
its subsidiary could succeed in a Canadian court:
Piedra v. Copper Mesa
Mining Corp.
, 2010 ONSC 2421 affd. 2011 ONCA 191.

[42]

She rejected the appellants argument that the lack of a Guatemalan
document discovery process similar to that provided for under British Columbia
rules was an impediment.

[43]

She concluded that there are two types of procedures by which the appellants
may obtain civil compensation in Guatemala: a stand-alone civil suit; and
through a criminal proceeding in which both the accused Rotondo and other
liable parties can be ordered to pay compensation:

[28]      The expert evidence sets out that the following
framework exists in Guatemalas legal system:

* Guatemala has a Civil Code.
Guatemalan law provides remedies for the claims arising from intentional or
negligent acts that cause injury.

* The tort of negligent action
requires the plaintiff to prove he suffered a damage or injury; the relationship
between the defendants acts or omission or lack of care owed and the damage
the injury caused.

* Battery is considered a crime and
any party responsible for a crime or offence is also civilly liable. Under
Guatemalan law, a person can be added as a claimant seeking civil
reparation/damages from an accused in a criminal proceeding. Damages can
include restitution, payment of loss income, and damages for moral and material
reparation.

* In a filed criminal claim,
claimants seeking civil reparation can seek damages against any person found
liable for any alleged physical and/or psychological damages. Other parties
potentially responsible for the actions of an accused can be added as parties
to the civil claim.

* Vicarious liability exists, but a
plaintiff has the burden of proving that the company directed or supervised the
acts against them. If the plaintiffs can prove the people who attacked them
were acting under the parent companys supervision or direction, then the
parent company would be held responsible.

* When a lawsuit related to acts or
business in Guatemala is initiated, Guatemalan courts are qualified to summon
foreign or Guatemalan individuals or corporations who are not in the country.

* The plaintiffs can also file a
civil suit claiming payment for damages. Within the civil procedure, plaintiffs
can bring vicarious liability, direct battery and negligence claims. Plaintiffs
can claim damages suffered including lost income, lost profit and medical
expenses. The concept of damages is not defined in the Code and it is possible
to claim compensation for moral or psychological damages suffered.

* Various parties may be plaintiffs
or defendants in the same proceedings. Defendants may bring third parties into
a suit by joinder.

* Discovery procedures are
available prior to a hearing.

* Parties have a right to appeal
final judgments of a trial court.

[96]       As noted earlier, the plaintiffs would have to
establish that Tahoe either directed or supervised the actions of the
wrongdoers in order to establish liability on the part of Tahoe.

[97]

The fact that
the plaintiffs would not be able to advance claims based on agency in Guatemala
is a factor in favour of British Columbia as the appropriate jurisdiction. I
note that the plaintiffs would also face impediments in British Columbia in
piercing the corporate veil; however, I agree the law in that regard appears
less restrictive in British Columbia.

[44]

The judge did not consider that the expiration of the one-year
limitation period to commence a civil suit would impede the appellants from
bringing a civil suit against Tahoe in Guatemala if British Columbia had
declined jurisdiction on the basis of
forum non conveniens
(at para. 87).

[45]

After considering all the s. 11(2)
CJPTA
factors, the judge
concluded that Guatemala was clearly the more appropriate forum for
adjudication of the dispute. She granted Tahoes application for a stay of the
British Columbia proceedings.

V. Application to Admit New Evidence on Appeal

[46]

I shall refer to the application to admit new evidence on appeal in more
detail below. Put briefly, the evidence relates to the indefinite adjournment
of the criminal proceeding in Guatemala owing to Mr. Rotondos flight to
Peru. This has implications for the appellants derivative claim for
compensation within the criminal proceeding. The appellants also submit new
evidence concerning judicial corruption in Guatemala.

VI. Issues on Appeal

[47]

I would state the issues on this appeal in the following way:

-

Should new evidence concerning the Guatemalan criminal proceeding
against Rotondo be admitted?

-

In light of the new evidence, is the criminal proceeding still a more
appropriate forum for the action?

-

Did the judge err in finding that a potential stand-alone civil suit in
Guatemala is a more appropriate forum?

-

Did the judge misapprehend the expert evidence regarding the effect that
the expiration of the Guatemalan limitation period for bringing a civil claim
would have on the appellants claim against Tahoe in a stand-alone civil suit?

-

Did the judge err in her application of the
forum non conveniens
analysis?
More specifically, did the judge properly consider all factors that she was
required to consider?

-

Should new evidence concerning corruption in the Guatemalan judiciary be
admitted?

-

How should evidence regarding corruption in a defendants proposed forum
be assessed in an application of the
forum non conveniens
analysis?

VII. Discussion

[48]

In the analysis that follows, I consider, in light of new evidence, whether
the Guatemalan criminal proceeding  in which the appellants have a derivative
civil claim  is a more appropriate forum for the dispute. I conclude that it
is not. Turning to the potential stand-alone civil suit in Guatemala, I discuss
three factors: (1) the limitation period for bringing civil suits in Guatemala;
(2) the Guatemalan discovery procedures for civil suits; and (3) the risk of
unfairness in the Guatemalan justice system.

[49]

I conclude that those three factors all weigh against finding that
Guatemala is clearly the more appropriate forum for the action.

A. Statutory Provisions

[50]

Jurisdictional applications of this type are governed by Rule 218 of
the
Supreme Court Civil Rules
, B.C. Reg. 168/2009. The pertinent part of
the Rule permits a defendant to apply to strike out, or stay a proceeding,
where the defendant seeks an order declining jurisdiction:

21  8 Disputed
jurisdiction

(1)        A party who has been served with an originating
pleading or petition in a proceeding, whether that service was effected in or
outside British Columbia, may, after filing a jurisdictional response in Form
108,

(a) apply to strike out the notice
of civil claim, counterclaim, third party notice or petition or to dismiss or
stay the proceeding on the ground that the notice of civil claim, counterclaim,
third party notice or petition does not allege facts that, if true, would
establish that the court has jurisdiction over that party in respect of the
claim made against that party in the proceeding,

(b) apply to dismiss or stay the
proceeding on the ground that the court does not have jurisdiction over that
party in respect of the claim made against that party in the proceeding, or

(c) allege in a pleading or in a
response to petition that the court does not have jurisdiction over that party
in respect of the claim made against that party in the proceeding.

[am.
B.C. Reg. 119/2010, Sch. A, s. 35.]

Order declining
jurisdiction may be sought

(2)        Whether or not a party
referred to in subrule (1) applies or makes an allegation under that subrule,
the party may apply to court for a stay of the proceeding on the ground that
the court ought to decline to exercise jurisdiction over that party in respect
of the claim made against that party in the proceeding.

[51]

Sections 7 and 11 of the
CJPTA
are pertinent to this application
and appeal. Section 7 provides that a corporation is ordinarily resident in
British Columbia if the corporation has a registered office in British Columbia.
Tahoe concedes that it has a registered office in British Columbia and that the
Supreme Court therefore has jurisdiction
simpliciter
. However, it argues
that British Columbia is not the most appropriate forum.

[52]

Section 11 of the
CJPTA
governs the exercise of the Courts discretion
to decline jurisdiction and stay a proceeding on the grounds that another
jurisdiction  in this case, Guatemala  is the more appropriate forum for
adjudication of the claim. Section 11 provides:

Discretion as to the
exercise of territorial competence

11
(1) After considering the interests of the
parties to a proceeding and the ends of justice, a court may decline to
exercise its territorial competence in the proceeding on the ground that a
court of another state is a more appropriate forum in which to hear the
proceeding.

(2) A court, in deciding the
question of whether it or a court outside British Columbia is the more
appropriate forum in which to hear a proceeding, must consider the
circumstances relevant to the proceeding, including

(a) 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,

(b) the law to be applied to issues
in the proceeding,

(c) the desirability of avoiding
multiplicity of legal proceedings,

(d) the desirability of avoiding
conflicting decisions in different courts,

(e) the enforcement of an eventual
judgment, and

(f) the fair and efficient working of the Canadian legal
system as a whole.

[53]

The factors enumerated in s. 11(2) are not exhaustive. As Mr. Justice
LeBel noted in
Van Breda
, a diverse array of context-specific factors
and concerns may be considered by the court in deciding whether to apply
forum
non conveniens
(at paras. 105, 110).

B. Burden of Proof and Standard of Review

[54]

Writing for the Court in
Van Breda
, LeBel J. explained

that
the burden of proof in a
forum non conveniens
analysis is on the party
who seeks the stay of proceeding (at para. 109):

The use of the words clearly and exceptionally should be
interpreted as an acknowledgment that the normal state of affairs is that
jurisdiction should be exercised once it is properly assumed.
The burden is
on a party who seeks to depart from this normal state of affairs to show that,
in light of the characteristics of the alternative forum, it would be fairer
and more efficient to do so and that the plaintiff should be denied the
benefits of his or her decision to select a forum that is appropriate under the
conflicts rules
. The court should not exercise its discretion in favour of
a stay solely because it finds, once all relevant concerns and factors are
weighed, that comparable forums exist in other provinces or states. It is not a
matter of flipping a coin. A court hearing an application for a stay of
proceedings must find that a forum exists that is in a better position to
dispose fairly and efficiently of the litigation. But the court must be mindful
that jurisdiction may sometimes be established on a rather low threshold under
the conflicts rules.
Forum non conveniens
may play an important role in
identifying a forum that is clearly more appropriate for disposing of the
litigation and thus ensuring fairness to the parties and a more efficient
process for resolving their dispute.

[Emphasis added.]

[55]

In
Black v. Breeden
, 2012 SCC 19, LeBel J. again writing for the
Court summarized the application of the
forum non conveniens
analysis
and the standard of review on appeal, at para. 37:

In the end, some of the factors relevant to the
forum non
conveniens
analysis favour the Illinois court, while others favour the
Ontario court. The
forum non conveniens
analysis does not require that
all the factors point to a single forum or involve a simple numerical tallying
up of the relevant factors.
However, it does require that one forum
ultimately emerge as
clearly
more appropriate
. The party raising
forum
non conveniens
has the burden of showing that his or her forum is
clearly
more appropriate. Also, the decision not to exercise jurisdiction and to stay
an action based on
forum non conveniens
is a discretionary one. As
stated in
Club Resorts
, the discretion exercised by a motion judge in
the
forum non conveniens
analysis will be entitled to deference from
higher courts, absent an error of law or a clear and serious error in the
determination of relevant facts (para. 112). In the absence of such an
error, it is not the role of this Court to interfere with the motion judges
exercise of his discretion.

[Emphasis added.]

[56]

Therefore, on this appeal, the standard of review is deferential insofar
as this Court is reviewing the judges weighing of the
forum non conveniens
factors.
But it is a correctness standard where the basis of the point on appeal is a
question of law:
Housen v. Nikolaisen
, 2002 SCC 33.

C. Criminal Proceeding Against Rotondo

i. New Evidence Concerning the Criminal Proceeding

[57]

The appellants seek to introduce new evidence concerning the Guatemalan
criminal proceeding against Mr. Rotondo. This evidence is set out in
affidavits from: the appellants legal expert, Mynor Melgar; the appellants
CALAS legal representative in Guatemala; a translator, Roger Barany; and a
paralegal in the office of the appellants British Columbia lawyers. The
affidavits describe events relevant to the criminal proceeding that have
occurred subsequent to the judges order under appeal.

[58]

Mr. Rotondo had been under house arrest in Guatemala City awaiting
trial. The guard posted at the front gate of his residence went off duty. When
he returned three days later he did not see Mr. Rotondo. On November 29,
2015, the police obtained permission to enter the residence at which time it
was discovered that Mr. Rotondo was not in the home. After Mr. Rotondo
escaped from house arrest, he travelled to Peru, his birthplace and country of
origin. The Guatemalan authorities are seeking his extradition from Peru. There
is no evidence as to when or if that will occur. The evidence of the public
defenders acting for the appellants in Guatemala is that on December 1, 2015,
the Guatemalan court declared Mr. Rotondo in contempt, ordered his arrest,
and suspended the trial. Mr. Rotondo has been arrested in Peru and is
under house arrest in Peru.

[59]

Tahoe does not dispute the veracity of any of the new evidence about the
Guatemalan criminal proceedings against Mr. Rotondo.

[60]

The appellants contend that the whole underpinning of the order under
appeal was the existence of the criminal proceeding through which the appellants
could apply for compensation for their injuries. Importantly, the judge held
that:

[72]      This is not a case
where the plaintiffs will not have a trial or hearing in the other
jurisdiction. They are advancing a claim for compensation for their injuries in
the criminal proceedings in Guatemala. They are able to add other parties.

[61]

The new evidence casts serious doubt on that conclusion. I agree with
the appellants that the existence of the ongoing criminal proceeding in
Guatemala was a significant, if not pivotal, point in the judges decision to
grant a stay.

[62]

The test for the admission of new evidence on appeal is a stringent one.
Writing for the Court in
Palmer v. The Queen
, [1980] 1 S.C.R. 759 at 775,
Mr. Justice McIntyre set out the following test:

(1) The evidence should generally not be admitted if, by due
diligence, it could have been adduced at trial provided that this general
principle will not be applied as strictly in a criminal case as in civil cases:
see
McMartin v. The Queen
, [1964] S.C.R. 484.

(2) The evidence must be relevant in the sense that it bears
upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is
reasonably capable of belief, and

(4) It must be such that if
believed it could reasonably, when taken with the other evidence adduced at
trial, be expected to have affected the result.

[63]

New evidence may be considered by the court only in exceptional
circumstances. The evidence must be considered likely to affect the result
and its admission must be clearly in the interests of justice:
Animal
Welfare International Inc. v. W3 International Media Ltd.
, 2015 BCCA 148 at
para. 10. The test is somewhat more flexible where the order is interlocutory
in character:
Kaynes v. BP P.L.C.
, 2016 ONCA 601.

[64]

The appellants say that the order under appeal is a stay which could be
lifted and therefore it is interlocutory in character. As already noted, the
appellants contend that this new evidence goes to the very underpinnings of the
order under appeal and is likely to have affected the outcome.

[65]

Tahoe says that the order under appeal is not an interlocutory order. It
says that the result of the judges order is the end of the British Columbia
proceeding. Tahoe relies on
North Vancouver (District) v. Lunde
(1998),
60 B.C.L.R (3d) 201, for the proposition that new evidence is almost never
admitted in the interests of finality in litigation.

[66]

In my view,
Lunde
is not applicable to this case. The premise of
the order staying the British Columbia proceeding was that there was an ongoing
criminal proceeding which was a more appropriate forum to adjudicate the
dispute. As it is now doubtful whether that proceeding will go forward in a
timely manner or at all, contrary to the assumption made by the judge, the
evidence should be before the Court.

[67]

Tahoe argues that the Guatemalan proceedings, including the extradition
request to Peru, should be left to run their course. Tahoe argues in its
written submissions on the new evidence application that:

The further delay in returning Mr. Rotondo
to Guatemala for trial is a function of due process as to extradition between
Guatemala and Peru; it does not follow that this should cause the Guatemalan
legal system to be viewed in a negative light. Indeed, Mr. Melgar concedes
that Mr. Rotondo has every right to exhaust all available legal remedies
in his country of origin, and it is impossible to foresee with absolutely legal
certainty the outcome of these domestic proceedings or how long they are likely
to take.... Tahoe submits that this conclusion could be made regarding
extradition proceedings involving any two countries and is not germane to the
matter under appeal.

[68]

The burden of the evidence sought to be admitted as new evidence on
appeal is that Mr. Rotondo has fled Guatemala and is now in Peru. It is
uncertain if he will be successfully extradited to Guatemala. As I have said,
the underlying basis of the judges decision to stay the proceeding in British
Columbia was that there was an adequate extant proceeding in Guatemala in which
the appellants civil compensation claims against Tahoe and others could
proceed. Now the appellants say that there is doubt as to whether the criminal
proceeding will proceed in a timely way or at all.

[69]

The new evidence establishes that the criminal proceeding against
Rotondo is adjourned indefinitely. Tahoe did not adduce evidence to suggest
when or if it is likely to resume. Resumption is dependent on Peruvian
extradition proceedings about which there is no evidence.

[70]

The evidence of Mr. Rotondos flight, the subsequent adjournment of
the criminal proceeding, his arrest in Peru, and his stated intention to oppose
extradition is relevant and affects the outcome of the
forum non conveniens
analysis. I would admit this evidence on appeal.

ii. Conclusion Regarding Criminal Proceeding

[71]

Admission of the new evidence leads to the inescapable conclusion that
the Guatemalan criminal proceeding  to which the appellants civil
compensation claims have been joined  is not a more appropriate forum for
adjudicating the dispute.

D. Stand-alone Civil Suit

[72]

Although the judges primary focus was on the existence of the
derivative claims joined to the criminal proceeding, she also found that a
potential stand-alone civil suit in Guatemala was a more appropriate forum. I therefore
turn to a consideration of whether the judge erred in her finding that the
availability of a civil action established Guatemala as a more appropriate
forum.

[73]

The appellants contend that she erred in so finding. They advance three
main grounds to support this aspect of their appeal:

1)

Inadequate discovery rules and other procedural difficulties make
Guatemala a wholly inconvenient and inefficient forum;

2)

The limitation period to commence a civil suit in Guatemala has expired;
and

3)

The Guatemalan judicial system is corrupt and there is a real risk they
cannot obtain a fair trial. The appellants seek the admission of new evidence
to support this third ground of appeal.

[74]

Below, I discuss how Canadian jurisprudence establishes that the relevant
forum non conveniens
factors should be considered and weighed together
in one stage when determining whether a defendant has proven that its proposed
alternate forum is clearly the more appropriate forum.

i. Guatemalan Discovery Procedures

[75]

The appellants say that there are important differences in the available
discovery procedures in Guatemala compared to those available in British
Columbia which would put them at a distinct disadvantage in Guatemala.

[76]

The appellants submit expert evidence from Carol Zardetto, a Guatemalan
lawyer practicing for over 25 years. She describes these difficulties in her
report:

A civil claim is commenced in Guatemala by filing a document
known in Spanish as a
Demanda.
There are very specific rules for the
Demanda.
First, Article 105 of the Civil and Mercantile Procedures code indicates
that it must specify the evidence which the party intends to rely on to prove
the claim. Evidence that is not described in the
Demanda
may not be
submitted to the court later. Second, Article 108 requires that the essential
documents that constitute the basis of the claim must be presented with the
Demanda
or described in detail, indicating where the originals are. Third, Article
108 establishes that if the documents are not presented with the
Demanda
they
will not be accepted afterwards, except if there is a justified reason for not
possessing them. Fourth, article 109 permits the Judge to reject a claim that
doesnt comply with these requirements. In addition, the evidence referenced in
the
Demanda
must be sufficient to establish the legitimacy of the claim.
In practice, these rules mean the plaintiff must know the evidence he or she
intends to rely on to prove the case at the beginning of the case.

There are very limited procedures
available to the plaintiff to obtain evidence from a foreign defendant before
filing a
Demanda
and commencing the case. Basically, the plaintiff would
have to petition the court to issue letters rogatory to a foreign court to
request production of evidence from the foreign company. This would be a
complex and time consuming process with no assurance of success. The request
would likely have to be based on Guatemalan rules of procedure, not the foreign
procedures, in order to ensure that any evidence obtained in this process could
be used in the court case here. As will be described below, there are very real
limitations on the ability of a requesting party to prove the document exists
and what its contents are in order to obtain a ruling to produce the document.

[77]

Tahoes expert, Francisco Chávez Bosque, is a Guatemalan lawyer
practicing for over 40 years. He did not contradict any of Ms. Zardettos
evidence on this issue.

[78]

The judge considered the differences between Guatemalan and British
Columbia discovery procedures and nevertheless concluded that they did not rise
to a level that could alter her conclusion about the choice of forum. The judge
made the following findings:

[70]      The plaintiffs argue they will be unable to obtain
discovery in Guatemala. However, that is not borne out by the evidence. CALAS
represents four of the seven plaintiffs in the criminal proceeding involving Mr. Rotondo
in Guatemala. As counsel, CALAS has a right to a copy of all the evidence in
the case. The evidence included the security video from the Escobal mine and
audio intercepts of conversations in which the plaintiffs say Mr. Rotondo
participated. The security video and audio intercepts were adduced on this
application.

[98]      The plaintiffs argue there is a juridical advantage
to the plaintiffs in proceeding in British Columbia because otherwise they will
be unable to obtain the documents to pursue their claims against Tahoe.

[99]      However, as noted earlier, the plaintiffs have been
able to obtain documents in Guatemala. Most of the other evidence relevant to
the plaintiffs claims is in the possession of the MSR and its employees in
Guatemala, such as evidence of security protocols, interaction between head
office and MSR, etc. As well, the majority of the damage documents are in Guatemala
with the plaintiffs for their wage loss claims, and the plaintiffs medical
care providers and caregivers for their general damages and future cost of care
claims.

[100]    There is evidence from
Tahoes expert outlining the procedures for obtaining and submitting evidence
in civil procedures, including obtaining declarations of material witnesses and
conducting depositions. While the plaintiffs experts point to the fact there
may be challenges, the procedures outlined resemble those used in other civil law
jurisdictions and are available to the plaintiffs.

[79]

The appellants submit that the judge erred by equating the appellants
access to documents in the prosecutors file in the criminal proceeding with a
right to civil discovery of documents possessed by Tahoe. I agree. In my view,
the judge did not give adequate consideration to the difficulties the appellants
will face in bringing a stand-alone civil suit against Tahoe in Guatemala when
they cannot discover documents in Tahoes possession without going through a complex
and time consuming process of petitioning a Guatemalan court to issue letters
rogatory requesting that a British Columbia court require Tahoe to produce the
documents. This lack of consideration on the judges part can be explained, in
part, by the fact that the judge considered the stand-alone civil suit as an
adjunct to the existing criminal proceeding. As that criminal proceeding is now
mired in uncertainty, closer scrutiny must be given to the stand-alone civil
suit.

[80]

I am mindful that in
Van Breda
, the Court cautioned against
placing too much emphasis on procedural variances between Canada and other
jurisdictions when assessing the juridical advantage factor. As the Court said,
[d]ifferences should not be viewed instinctively as signs of disadvantage or
inferiority (at para. 112). In this case, however, the evidence regarding
civil discovery procedures in Guatemala points away from finding that Guatemala
is clearly the more appropriate forum for bringing tort claims against a
British Columbia corporate defendant, particularly in light of the fact that
new evidence shows the criminal proceeding has stalled.

ii. Limitation Period

[81]

The parties all agree that the applicable limitation period under
Guatemalan law for the appellants to commence a civil suit against Tahoe is one
year. This period has long since expired. Tahoe contends that the expiration of
the limitation period should not factor in favour of the appellants in the
forum
non conveniens
analysis. Tahoe also contends that a judge might exercise
his or her discretion under Guatemalan law to permit such a claim
notwithstanding the expiration of the primary limitation period.

[82]

I turn first to this question of whether the limitation period may be
extended.

[83]

The judge found that the expiration of the limitation period in
Guatemala would not bar the appellants from bringing a civil suit against
Tahoe. I find that the expert evidence does not support such a finding.

[84]

In Mr. Bosques first report, he said the following regarding
limitation periods:

In case of damages caused intentionally or by carelessness or
imprudence, which are civil damages that can be pursued in a civil claim, the
right to claim damage compensation expires in one year as of the day the damages
were caused or as of the day the victim knew of the damage and who had caused
it [Article 1673 of the Civil Code]. The same limitation period applies both to
the direct damage authors and to those vicariously liable.

The statute of limitation must be
raised as a defence and cannot be applied officiously by the Courts of law.
Notwithstanding the aforementioned, the party that benefits from the limitation
period may waive it in several ways: by an express waiver; by acknowledging the
Plaintiffs right to the claim; and by not raising the statute of limitations
defence.

[85]

Tahoe has not undertaken to waive the limitation period.

[86]

In Ms. Zardettos report, she said:

In my opinion, recommencing such
a case in Guatemala would face an additional problem that the limitations
period in Guatemala for damage claims of one year may have expired. It is
impossible to know if a Guatemalan judge would consider the limitations period
interrupted by an action filed in BC and dismissed under such basis as the
inconvenience of the forum, especially when Guatemala doesnt recognize the
validity of this doctrine.

[87]

In Mr. Bosques reply report to Ms. Zardettos report, he did
not address the limitation period issue at all. In response to Ms. Zardettos
assertion that Guatemala cannot accept a transfer of the case from British Columbia
because, once a claim is validly filed in a foreign jurisdiction, Guatemalan
courts are no longer competent to consider it, Mr. Bosque said:

a.         Ms. Zardetto is correct in stating that a
Guatemalan Court cannot accept a
transfer
of a case. If a civil
complaint is not heard in a foreign court for a
forum non conveniens
decision, the Guatemalan plaintiff must file a new complaint in Guatemala
under
Guatemalan procedural rules and requirements
, and Guatemalan courts have
the obligation to hear the case. Refusing to hear a case concerning damages
caused in Guatemala could be construed as a negation of justice. Congress
Decree 34-97 does not bar the filing of a new lawsuit in Guatemala in case a
foreign court has decided to accept the
forum non conveniens
defense.

b.         The difficulties Plaintiffs may encounter in
succeeding in their complaint do not counter the fact that Guatemalan courts
have jurisdiction over the case and that Guatemalan laws rule over the acts
that allegedly took place in Guatemala.

[Emphasis added.]

[88]

The judge found:

[87]
Although the plaintiffs
argue they may not be able to commence a civil action because the limitations
period had passed,
the evidence indicates that a law suit can be filed in
Guatemala if it is determined that the British Columbia courts will decline
jurisdiction on the basis of
forum non conveniens
.
As noted earlier,
similar causes of actions to the one pleaded in this action are available under
Guatemalan law.

[Emphasis added.]

[89]

Regarding the judges above finding, I infer two possibilities: (1) the
judge misapprehended Mr. Bosques evidence in his reply report and found
that Guatemalan courts would be obligated to hear a civil suit against Tahoe notwithstanding
the expiration of the limitation period; or (2) the judge simply found that the
appellants could file a civil suit in Guatemala but made no finding on how the
raising of a limitation period defence might affect that claim. It is not clear
what the judge understood. As the party seeking a stay, Tahoe has the burden of
proof to establish that the limitation period does not foreclose the appellants
from suing in Guatemala. The expert evidence is not clear on this point. In my
view, the judge erred in her conclusion.

[90]

The next question is how the possible expiration of the limitation
period factors into the analysis.

[91]

In a
forum non conveniens
analysis, facts
regarding limitation periods are considered under the juridical advantage
factor: see
Tolofson v. Jensen
, [1992] 3 W.W.R. 743 (B.C.C.A.);
Gotch
v. Ramirez
, [2000] O.J. No. 1553 at para. 16 (S.C.). Many courts
have found that the expiration of a limitation period in the other jurisdiction
is a juridical disadvantage to the plaintiff that weighs
against
granting
a stay of proceedings based on
forum non conveniens
: see
Tolofson
;
Gotch
;
Butkovsky v. Donahue
(1984),
52 B.C.L.R. 278
(S.C.);
Ang et al. v. Trach et al.
, [1986] O.J. No. 1117
(S.C.);
Jordan v. Schatz
, 2000 BCCA 409 at para. 28. However, some
courts have found that a plaintiffs failure to bring an action within time in
the other jurisdiction militates against attaching any weight to the juridical
advantage factor because, in some circumstances, a plaintiff could successfully
oppose a defendants
forum non conveniens
application in one
jurisdiction by simply allowing the limitation period to expire in the other
jurisdiction: see
Kennedy v. Hughes
,
[2006] O.J. No. 3870
at para. 12(v)-(vi) (S.C.);
Hurst v. Société Nationale de LAmiante
,
2008 ONCA 573 at paras. 51-52.

[92]

It appears that the weight attached to the juridical
advantage factor when considering the expiration of a limitation period in
another jurisdiction is a case-specific inquiry that turns on the facts.

[93]

In its factum, Tahoe cites
Breeden
where the Court cautioned that
a focus on juridical advantage may put too strong an emphasis on issues that
may reflect only differences in legal tradition which are deserving of respect,
or courts may be drawn too instinctively to view disadvantage as a sign of
inferiority and favour their home jurisdiction (at para. 26).

[94]

In view of the fact that the appellants have been joined
to the criminal proceeding and have also commenced an action against Tahoe in
British Columbia, it cannot be said that they have not diligently pursued their
claims. Nor can it be said that the appellants are forum shopping by bringing
a claim in British Columbia; I find that they have sought legitimate juridical
advantages by commencing their claim here against a British Columbia corporate
defendant. In my view, the appellants failure to sue Tahoe in Guatemala within
the limitation period should not militate against attaching any weight to the
juridical advantage factor when the appellants have actively sought remedies in
dual jurisdictions.

[95]

Put in other words,
the judge misapprehended the
evidence on the potential impact of the limitation period (i.e., she either
thought the Guatemalan court would have to hear the civil suit despite the
expired limitation period or she ignored the possible impact of the expired
limitation period). As a result of her misapprehension, she failed to account
for the juridical advantage to the plaintiff that weighs against granting the
stay. This is not one of those cases in which the juridical advantage factor
should have no weight because the appellants have been diligent and are not
forum shopping. For that reason, I conclude the judge erred in failing to weigh
this significant factor in the balance.

[96]

I conclude that the expiration of the limitation period
factors against finding that Guatemala is clearly a more appropriate forum. I
attach significant weight to this factor because it casts doubt on whether the
appellants will be able to pursue a civil suit against Tahoe in Guatemala at
all.

iii. Risk of Unfairness in the Guatemalan Justice System

a. New Evidence Concerning Judicial Corruption

[97]

The appellants adduce new evidence concerning judicial corruption set
out in a further affidavit of their expert, Mynor Melgar, in which he
describes recent events involving arrests of members of the judiciary. This new
evidence underscores the evidence already before the judge but is not
qualitatively different from it. I would not admit it on appeal because it cannot
affect the outcome, and therefore, does not meet the test for admission of new
evidence.

b. Evidence that was before the Chambers Judge

[98]

The judge considered expert evidence submitted by the parties on the
climate of the Guatemalan justice system.

[99]

The appellants submit that their evidence shows the structural weakness
of the Guatemalan judiciary and the real risk that they may not receive justice
in Guatemala. The evidence of the appellants expert Mr. Melgar, a former
Secretary General of the Public Prosecutors office, is relevant to the
question of whether the appellants claim should be considered in a broader
context. Mr. Melgars report was not specifically challenged by Tahoes
expert, Mr. Bosque. While the judge held that the claims against Tahoe were
personal injury claims, Mr. Melgars evidence highlights the political
context of the dispute and the large power imbalance between the parties. Mr. Melgar
asserts that the close economic ties between the mine and multiple levels of
political power in Guatemala create a very real risk that the appellants will
not receive a fair trial in Guatemala. The appellants cite from Mr. Melgars
report in their factum to illustrate their point:

Given the above context, and considering the statements
contained in the documents provided to me, in particular the affidavit of
Donald Paul Gray, I find this to be a case where there are economic interests
that transcend the companies that own the project and involve the different
levels of political power. Locally, that power is represented by mayors who
derive economic benefits for their municipalities, and regionally by
parliamentary deputies representing the provinces where the plant Is located;
and at a yet higher level, those interests affect the Guatemalan state, whose
national budget benefits from a revenue source in the form of royalties, in
addition to the potential importance of attracting foreign investment.

With this amalgam of common
interests at play, in my opinion and based on my experience, it would be difficult
to ensure a fair and impartial trial in a legal contest between those who
represent those common interests and a group of seven farmers injured as a
result of their actions in opposition to a mining project.

[100]

The appellants argue that the expert evidence shows that endemic
corruption in the Guatemalan legal system is not isolated to high profile criminal
prosecutions but reaches all levels of the Guatemalan judicial system. The
appellants rely on the expert evidence of Mirte Postema in this regard. Ms. Postema
is a lawyer with the Due Process of Law Foundation in Washington, D.C., an
organization which promotes the rule of law and human rights in Latin American
countries. Her evidence describes the commission established by Guatemalan
officials and members of the international community to investigate powerful
criminals and corrupt politicians because of the Guatemalan criminal justice
systems endemic weakness. In her report she says:

The situation in Guatemalas
judiciary is so severe that in the past decade, international pressure led
Guatemalan officials and civil society leaders to work with the international
community to establish the International Commission Against Impunity in
Guatemala (CICIG). Because national institutions such as the Public Prosecutors
Office (MP) and the National Civil Police (PNC) proved unable to effectively
investigate crimes committed by members of illegal security forces and
clandestine security structures, let alone disband such structures, it was
decided that the only way to counter such forces was in creating an
independent, international commission with far-reaching investigative (but not
prosecutorial) powers.

[101]

The appellants also refer to Ms. Postemas evidence regarding the
lack of judicial independence which notes that judges do not have tenure.
Judges who make unpopular decisions may be subject to disciplinary proceedings
and subsequent sanctions. Ms. Postema says there is a lack of basic
safeguards in Guatemala to ensure judicial independence. In her report, she
says:

The structural weaknesses identified severely call into
question the existence of basic conditions to guarantee judicial independence
in Guatemala. They can be summarized as follows:

The normative framework in place in
Guatemala is not sufficient to effectively guarantee judicial independence and
protect judges from pressures originating both outside and inside the
judiciary. Although the Constitution (art. 203) and laws (such as art 2 LCJ
[Ley de la Carrera Judicial - Law on the Judicial Career]) speak of the
independence of the judiciary, there are no mechanisms in place to guarantee
this independence in practice: there is a lack of both internal and external
independence, judges lack tenure, and the judicial selection processes are not
merit-based.

There is no real judicial career in
Guatemala. Judges are appointed for a period of only five years. This lack of
tenure means that judges can, and do, lose their jobs without any justification
necessary. This situation leaves judges highly vulnerable to pressures.

The internal disciplinary system
does not respect due process guarantees and arbitrary decisions are therefore
highly likely. It is a known problem that judges who make unpopular decisions
are subject to disciplinary proceedings and subsequent sanctions.

The processes for the selection of
judges are not transparent or merit-based, but rather, are controlled by
special interests-including those involved with organized crime.

Although there is a system in place for the random
assignment of cases to judges, the judges and legal practitioners interviewed
for DPLFs study indicated that this system is easily manipulated.

[102]

The
appellants further rely on the report of Ms. Zardetto. She has also been
involved in law reform in Guatemala. She opines that there is no assurance of a
fair and impartial legal proceeding in Guatemala. She characterizes Guatemalas
legal system as dysfunctional, formalistic, lacking in internal judicial
independence, demonstrating little concern for human rights, and favouring the
powerful. She says that a civil case is generally conducted by a judicial
officer and not a judge. The system is slow. Lawyers can act without a strict
ethical posture and use many tactics to cause delay, making justice almost
impossible to attain. In addition, Ms. Zardetto says that there are virtually
no reported cases in which Guatemalan individuals have sued a foreign
corporation in tort.

[103]

Tahoe
relies on the evidence of Mr. Bosque for the proposition that the kind of
corruption addressed by the appellants experts is anecdotal and inapplicable
to this kind of case.

[104]

Although Mr. Bosque
does not disagree that tort actions against foreign corporations are extremely
uncommon in Guatemala, he explicitly disagrees with Ms. Zardettos opinion
regarding corruption. He says that Guatemala has a functioning civil justice
system and that the appellants can be assured of a fair and impartial
proceeding in Guatemala against Tahoe as any plaintiff can be in a Guatemalan
court of law. He estimates that a civil case may take 46 years from the time
the claim is brought to the time the Court of Appeals releases its decision. As
I understand his response to Ms. Zardettos description of the need for
the CICIG, he suggests that corrupt judges are few in number.

[105]

Tahoe
characterizes the appellants expert evidence of corruption as anecdotal, not
systemic. Tahoe says that courts should, as the judge did, reject such limited
anecdotal evidence as a ground for refusing to recognize comity:
Standard Chartered
Bank (Hong Kong) Ltd v. Independent Power Tanzania Ltd
, [2015] E.W.H.C.
1640 (Comm.) at para. 174.

[106]

The
appellants say that these expert opinions should have led the judge to conclude
that, despite reforms, systemic weaknesses in the Guatemalan judicial system
persist, and impunity for human rights violations remains a current and
pervasive feature.

[107]

The intervenor,
Amnesty International Canada, notes that the context of this case is important.
It disagrees with the judges characterization of the case as a personal injury
case. Amnesty emphasizes that the context of this claim involves a
transnational company embroiled in human rights violations. I do not understand
Amnesty to disagree that this is a tort claim, nor to suggest international
laws should govern. I understand it simply to contend that, in considering the
risk of not receiving a fair trial, the context of the dispute should be taken
into consideration.

[108]

The judges
analysis on this question of corruption in the Guatemalan legal system is found
at paras. 65-66 of her reasons for judgment (set out above). She
determined that the evidence of corruption referred to in the expert reports
was relevant to criminal prosecutions against state officials and organized
crime syndicates but not to personal injury claims such as the one before her.
The judge accepted the appellants expert evidence showing that Guatemala has
some problems with its legal system, but she concluded that Guatemalas
justice system has been undergoing positive reform since the early 2000s and
that it functions in a meaningful way.

[109]

I agree
with the appellants and the intervenor that in characterizing the appellants claim
as a personal injury case, the judge was insufficiently attentive to the
context in which the conflict arose. This claim is not akin to a traffic
accident. Rather, it arose in a highly politicized environment surrounding the
governments permitting of a large foreign-owned mining operation in rural
Guatemala. The protest that led to the battery at issue in this case was not an
isolated occurrence, as I have mentioned above. However, I am sensitive to
Tahoes submission that the expert evidence is anecdotal and does not establish
specific risks of corruption. I agree that the appellants expert evidence is
of a general nature. The appellants have not produced detailed evidence showing
instances where the Guatemalan judiciary has been corrupted by the power of
foreign corporations. Indeed, a key point of the appellants evidence is that
tort cases between individuals and transnational corporations are virtually
unknown in Guatemala. While it is logical to infer that, in a country that has
significant issues with judicial independence, there is an increased risk of
corruption in the politicized context of this case, doing so is a somewhat
speculative exercise.

[110]

In the UK
and Canadian case authorities put before the judge where corruption was a
determinative factor in the
forum non conveniens
analysis, detailed
evidence was relied upon by the courts.

[111]

In
889457
Alberta Inc v. Katanga Mining Ltd
, [2008] E.W.H.C. 2679 (Comm.), the judge
concluded that the Democratic Republic of Congo (DRC) was not an available
forum for the dispute because the evidence established that the normal
infrastructure of a justice system did not exist there. The judge also found
that even if the DRC was an available forum, he would have concluded that it
was not the more appropriate forum because there was a real risk of corruption
in the DRC judiciary. The judge based this conclusion on expert evidence which
drew on respected, independent and authoritative sources. These sources
included reports of various organizations such as: the Foreign Commonwealth
Office; the Border and Immigration Agency of the Home Office; the Special Rapporteur
to the UN General Assembly on the Independence of Judges and Lawyers; the US
State Department; Transparency International; and the Global Witness and Human
Rights Watch.

[112]

In
Norex
Petroleum Limited v. Chubb Insurance Company of Canada
, 2008 ABQB 442, the
judge found that there was a risk the appellants would not obtain justice in
Russian courts. The appellants expert evidence was that one of the defendant
corporations was controlled by a powerful Russian oligarch. This same Russian
oligarch had been a defendant in a recent English case where the court had
declined to grant a stay in favour of the Russian forum because there was a risk
that this oligarch would improperly influence the Russian proceedings.

[113]

In
contrast to the above cases, the expert evidence provided by Tahoe is less
detailed and does not point to any instance where Tahoe or any other foreign
corporation improperly influenced the Guatemalan judiciary. It does, however,
show that corruption in the Guatemalan justice system is widespread and
Guatemala does not have normative structures in place to ensure judicial
independence.

c. Legal Test for Risk of Unfairness in Foreign Judiciary

[114]

The test
the judge applied was whether the foreign court was capable of providing
justice. The judge concluded that to hold otherwise would be to ignore the
principles of comity (at para. 105).

[115]

The appellants say that the judge erred in describing the legal test. The
appellants submit  and in oral submissions, Tahoe concedes  that the correct
test is
whether there is a real risk of an unfair process in the foreign
court
:
AK Investment CJSC v. Kyrgyz Mobil Tel Ltd
(2011)
,
[2012]
1 W.L.R. 1804 at 1828. In their factum, the appellants say:

39.

The Supreme Court of Canada did not specifically formulate a test
of fairness in
Van Breda.
UK courts considering this question have
consistently held that an action in the English courts should not be stayed
where
there is a real risk of an unfair process in the foreign court
. In
AK
Investment
the Privy Council expressly rejected the proposition that the
plaintiff must establish with certainty that justice would not be done in the
foreign court in order to resist a stay of proceedings:

In
The Abidin Daver
[1984]
AC 398, at 411, Lord Diplock said that the possibility cannot be excluded that
there are still some countries in whose courts there is a risk that justice
will not be obtained and gave some examples, none of which is close to this
case. He went on to say that a plaintiff in an English action seeking to resist
a stay (that being a stay case) upon the ground that even-handed justice may
not be done to him in that particular foreign jurisdiction, must assert this
candidly and support his allegations with positive and cogent evidence. That
was not a case in which this question arose for decision, but it is clear that
Lord Diplock was speaking of evidence of risk, and that he was not requiring a
higher standard, that justice would not be done.

The better view is that, depending
on the circumstances as a whole, the burden can be satisfied by showing that
there is a real risk that justice will not be obtained in the foreign court by
reason of incompetence or lack of independence or corruption. Of course, if it
can be shown that justice will not be obtained that will weigh more heavily
in the exercise of the discretion in the light of all other circumstances.

[Emphasis added.]

[116]

The intervenor,
Amnesty International Canada, endorses the
AK Investments
real risk
articulation of the test.

[117]

In considering
whether the judge applied the correct legal test, I must consider the differences
between the English and Canadian approaches to the
forum non conveniens
analysis.

[118]

In
England, a defendant must establish that its proposed alternate forum is more appropriate;
if this burden is met, then a stay will ordinarily be granted
unless
the
plaintiff can establish other circumstances which make the granting of a stay
adverse to the interests of justice:
Spiliada Maritime Corp v. Cansulex Ltd
(1986),
[1987] A.C. 460 at 478. One such circumstance is the real risk that the
plaintiff will not obtain justice in the alternate forum:
AK Investment
at
1828. Consequently, in the English application of the
forum non conveniens
analysis,
consideration of corruption and injustice in the alternate forum comes at a
secondary stage with a reverse onus on the plaintiff to show that granting a
stay would be adverse to the interests of justice.

[119]

By contrast, the Canadian jurisprudence reflects a more unified approach
to the application of the
forum non conveniens
analysis. Writing for the
Court in
Amchem Products Incorporated v. British Columbia (Workers
Compensation Board)
, [1993] 1 S.C.R. 897 at 919-20, Sopinka J. said:

In my view there is no reason in principle why the loss of
juridical advantage should be treated as a separate and distinct condition
rather than being weighed with the other factors which are considered in
identifying the appropriate forum. The existence of two conditions is based on
the historical development of the rule in England which started with two
branches at a time when oppression to the defendant and injustice to the
plaintiff were the dual bases for granting or refusing a stay. The law in
England has evolved by reworking a passage from the reasons of Scott J.
in
St. Pierre v. South American Stores (Gath & Chaves), Ltd.
, [1936]
1 K.B. 382, which contained two conditions. In its original formulation the
second condition required the court to ensure that there was no injustice to
the plaintiff in granting the stay. No doubt this was because the oppression
test concentrated largely on the effects on the defendant of being subjected to
a trial in England.
When the first condition moved to an examination of all
the factors that are designed to identify the natural forum, it seems to me
that any juridical advantages to the plaintiff or defendant should have been
considered one of the factors to be taken into account.
The weight to be
given to juridical advantage is very much a function of the parties connection
to the particular jurisdiction in question. If a party seeks out a jurisdiction
simply to gain a juridical advantage rather than by reason of a real and
substantial connection of the case to the jurisdiction, that is ordinarily
condemned as forum shopping. On the other hand, a party whose case has a real
and substantial connection with a forum has a legitimate claim to the
advantages that that forum provides. The legitimacy of this claim is based on a
reasonable expectation that in the event of litigation arising out of the
transaction in question, those advantages will be available.

[Emphasis added.]

[120]

Writing for
the Court in
Van Breda,
LeBel J. affirmed that
Amchem
provided
the structure for the Canadian application of the
forum non conveniens
analysis
and described the application as a weighing of all relevant concerns and
factors (at paras. 104, 109).

Thus, the Canadian approach to
forum
non conveniens
is not a two-stage analysis as in England. All factors and
concerns must be weighed together in one stage with the overall burden on the
defendant to establish that the proposed alternate forum is in a better
position to dispose fairly and efficiently of the litigation:
Van Breda
at
para. 109.

[121]

Given the
differences between the English and Canadian applications of the
forum non conveniens
analysis, I find it unhelpful to frame the issue as whether the judge
applied the correct legal test for assessing evidence of corruption and
injustice. It is more appropriate to frame the issue as whether the judge
correctly defined a factor which she was required to consider in the overall
forum
non conveniens
analysis. In other words, should the judge have considered
the capability of the alternate forum to provide justice, or should she have
considered the likelihood that the alternate forum would provide justice
(i.e., whether there was a real risk that justice would not be done)?

[122]

The judges approach to the analysis reflects the English approach. Though
the judge addressed the corruption evidence under the
CJPTA s.
11(2)(a)
comparative convenience factor, the judges reasoning shows that she viewed the
question of whether the appellants could obtain justice in Guatemala as a
secondary stage in the analysis. At para. 64 of her reasons, she said:

As stated in
Connelly
,
where the
forum non conveniens
analysis points to a clearly more
appropriate forum, then the plaintiff must take the forum as he finds it even
if it is in certain respects less advantageous to him
unless he can
establish that substantial justice cannot be done in the appropriate forum
.

[Emphasis added.]

[123]

In my
view, the judge erred in considering the issue of corruption and injustice in
the Guatemalan judiciary as a secondary stage in the analysis with the burden
on the appellants to rebut her
prima facie
determination that Guatemala
was the more appropriate forum. In addition, the judge erred in defining the
question as whether Guatemalan courts were capable of providing justice.

[124]

There is
no binding authority on this Court concerning the correct question to ask when
considering evidence of corruption and injustice in a defendants proposed
alternate forum. In light of the fact that the application of
forum non
conveniens
focusses on whether an alternate forum is better equipped than
Canada to dispose of the litigation fairly and efficiently, I find that it is
inadequate to ask whether the alternate forum is capable of providing
justice. On the other hand, the principle of comity requires that Canadian
courts be cautious in determining that a foreign court is unlikely to provide
justice. The real risk test articulated in
AK Investment
was
formulated with these considerations in mind. Though the English analysis is
structured differently, as I have noted above, I find the real risk standard
helpful and I would adopt it. Where a plaintiff presents evidence of corruption
and injustice in the defendants proposed alternate forum, the court must ask whether
the evidence shows a real risk that the alternate forum will not provide
justice. I note that two lower court decisions in Canada have considered the
real risk that justice will not be done in the alternate forum when applying
forum
non conveniens
: see
Norex Petroleum Limited v. Chubb Insurance Company
of Canada
, 2008 ABQB 442 at paras. 115-116;
Sistem Mühendislik İnşaat
Sanayi Ve Ticaret Anonim Sirketi v. Kyrgyz Republic
, 2012 ONSC 4351 at para. 71.

[125]

I am
mindful of the fact that the evidentiary standard to establish real risk is a
high bar in England. As Tahoe points out, sweeping, generalized evidence of
corruption in the alternate forum does not meet that standard:
Ferrexpo AG
v. Gilson Investments Ltd
, [2012] E.W.H.C. 64 (Comm.);
Mengiste v.
Endownment Fund for the Rehabilitation of Tigray
, [2013] E.W.H.C. 599 (Ch.).
In the two-stage English application of the
forum non conveniens
analysis,
it is necessary for the plaintiff to satisfy a high evidentiary threshold at
the second stage because, at the first stage, the court made a finding that the
alternate forum is
prima facie
more appropriate for the dispute. In
Canada, however, 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. The quality of
evidence regarding the risk of unfairness should dictate the weight that is
attached to that factor. Broad assertions of corruption should be given limited
weight, whereas detailed and cogent evidence of corruption should attract
significant weight.

[126]

In my
view, the judge erred by considering the risk of unfairness as a secondary stage
in the
forum non conveniens
analysis and by defining the question as
whether Guatemala was capable of providing justice. As a result, she gave
insufficient weight to the evidence of weakness and lack of independence in the
Guatemalan justice system in her discretionary weighing of the factors,
particularly given the context in which the alleged shooting occurred. The
evidence of weakness in the Guatemalan justice system ought not to be ignored. A
discretionary decision may be reversed where the lower court gives no, or
insufficient weight to relevant considerations:
Friends of the Oldman River
Society v. Canada (Minister of Transport)
, [1992] 1 S.C.R. 3. Based on the
judges errors, it is open to this Court to reverse her discretionary decision.
Though the appellants evidence regarding the risk of unfairness in Guatemala
is of a general nature, I am of the view that the evidence factors against
finding Guatemala is clearly the more appropriate forum. I place moderate
weight on this factor given the quality of the appellants evidence.

v. Conclusion Regarding Stand-alone Civil Suit

[127]

As LeBel
J. said in
Breeden
, the
forum non conveniens
analysis does not
require that all factors point to the defendants proposed alternate forum, but
it does require that the defendant establish that the alternate forum is
clearly
more appropriate. In this case, the judge found that Tahoe had established that
Guatemala was clearly the more appropriate forum. However, in my view, the
three factors discussed above weigh against such a finding with regards to the stand-alone
civil suit. The judge erred in finding that these three factors did not weigh
against the suitability of Guatemala. The first factor is the limited discovery
procedures available to the appellants in Guatemala; the second is the marked uncertainty
as to how the expiration of the limitation period will be treated by Guatemalan
courts; and the third is the real risk that the appellants will not obtain
justice in Guatemala given the context of the dispute and the evidence of
endemic corruption in the Guatemalan judiciary.

[128]

I conclude
that the judge did not give adequate consideration to the difficulties the appellants
will face in bringing suit against Tahoe given the limited discovery procedures
available in Guatemala. This factor weighs against a finding that Guatemala is
the more appropriate forum.

[129]

I find
that the judge erred by concluding that the expiration of the limitation period
for bringing a civil suit in Guatemala would not affect the appellants claim.
The expert evidence does not support such a conclusion. In my view, the
uncertainty occasioned by the expiration of the limitation period is a
juridical advantage factor that weighs heavily against a conclusion that Guatemala
is the more appropriate forum. This is a significant factor because it casts
doubt on whether the appellants will be able to advance a claim against Tahoe in
Guatemala at all.

[130]

I conclude
that the judge erred by ignoring the context of this dispute and placing
insufficient weight on the risk that the appellants will not receive a fair
trial in Guatemala. That risk should not be ignored. In reaching this
conclusion, I make no general pronouncement on Guatemalas legal system. Rather,
I simply conclude that there is some measurable risk 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. This factor points away from Guatemala as the more
appropriate forum.

[131]

In the
result, I conclude the judge erred in finding that Tahoe had established that
Guatemala was clearly a more appropriate forum than British Columbia for
adjudication of the appellants claims.

VIII. Disposition

[132]

I would admit the new evidence concerning the criminal proceedings
against Rotondo, but I would not admit the new evidence concerning judicial
corruption. I would allow the appeal and dismiss Tahoes application for a stay
of the British Columbia proceeding.

The Honourable Madam Justice Garson

I AGREE:

The
Honourable Mr. Justice Groberman

I AGREE:

The Honourable Madam Justice
Dickson