The move by Hudbay Minerals Inc. has surprised lawyers representing the Guatemalans claiming they were abused by security staff working for a subsidiary of the company.
“Hudbay has fought tooth and nail so far on every little point,” says counsel Cory Wanless, of Klippensteins Barristers & Solicitors. “We were ready for, and expecting, an appeal.”
In an Ontario Superior Court decision released on July 22, Justice Carole Brown said the case should proceed to trial.
Choc v. Hudbay Minerals Inc. considered three related cases regarding alleged incidents in the vicinity of the Fenix open-pit nickel mining operation in Guatemala between 2007 and 2009.
These include the alleged gang rape of 11 women by security personnel, police, and the military during their forced removal from their village, which the women say had been requested by a subsidiary of Hudbay.
They also include the fatal shooting of an indigenous leader and outspoken mining critic, and an “unprovoked” shooting that paralyzed its victim from the chest down, both allegedly carried out by mining security staff.
Hudbay had previously argued that the case should not be heard in Canada. It sold the mining project and the subsidiary that ran it in August 2011.
The outcome of the case could have significant implications for companies that hold subsidiaries abroad.
Wanless says appealing Brown’s decision would have been difficult because it was an interlocutory motion, meaning Hudbay would have needed to seek leave.
“It’s a hard test,” he adds. “There has to be conflicting jurisprudence, or the judge has to see there’s a serious question to look at.” Justice Brown’s decision was “very tight,” he says.
Lawyers have told Law Times the decision was won “on a very low bar.” The plaintiffs only had to argue the case would not plainly and obviously fail if it proceeded to trial.
Hudbay’s counsel Robert Harrison, a partner at Fasken Martineau DuMoulin LLP, agrees Brown’s ruling was “very narrow.”
“The clients made the decision not to seek to have an appeal review of the decision. We’re quite confident about what will ultimately happen, on the merits,” he adds.
The next stage in the case will be the discovery process.