In the latest edition of Fantastic new torts (for previous posts with this title see here and here) I circle back to Nevsun Resources Ltd. v. Araya 2020 SCC 5. (See here for a discussion of a different aspect of this judgement). Here, I discuss dissenting judges’ (Brown and Rowe JJ) excellent analysis of whether the new torts should be recognised.
New torts inspired by international law?
One of the pleadings of Eritrean workers was for the court to recognise four new torts “inspired by international law”. These are: use of forced labour; slavery; cruel, inhuman or degrading treatment; and crimes against humanity. Although the majority judgement did not rely too much on this aspect, the chambers judge and the Court of Appeal gave more weight to this pleading.
Brown and Rowe JJ, in examining this pleading or “theory of the case” as they say, discuss when Canadian common law courts should or should not recognise these new torts. The relevant principles in this regard are condensed into this:
“for a proposed nominate tort to be recognized by the courts, at a minimum it must reflect a wrong, be necessary to address that wrong, and be an appropriate subject of judicial consideration”. 
The rule about the tort needing to reflect a wrong means that the court is resistant to create absolute or strict liability regimes.  The rule of necessity implies that where alternative remedies exist, a new nominate tort need not be recognised. As Brown and Rowe JJ note, three alternative remedies exist: another tort, an independent statutory scheme, and judicial review.  Finally, the last rule about being an appropriate subject of judicial consideration refers to “the courts’ respect for legislative supremacy and the courts’ mandate to ensure that the law remains stable, predictable and accessible”. 
Two proposed torts would pass the test
Having clarified the relevant rules regarding this pleading Brown and Rowe JJ go on to conclude that two of the proposed torts fail these tests while the remaining two proposed torts would pass the tests. Even with respect to the proposed torts that pass the tests, they are of the opinion that the attempt to create such nominate torts is doomed to fail.
The proposed tort of cruel, inhuman or degrading treatment failed the necessity test because conduct captured by this proposed tort would also be captured by the torts of battery or intentional infliction of emotional distress.  The other proposed tort that fails is “crimes against humanity” because “it is too multifarious a category to be the proper subject of a nominate tort”. Many crimes against humanity would be already addressed under existing torts and “adopting such a tort wholesale would not be the kind of incremental change to the common law that a Canadian court ought to make”. 
Slavery and use of forced labour are the two proposed torts that would pass the test for recognizing a new nominate tort. Brown and Rowe JJ note that each of these proposed torts “may capture conduct not independently captured in torts such as battery, intentional infliction of emotional distress, negligence, or forcible confinement”.  Further, “to the extent there are non-tort alternative remedies under the criminal law, they would not restore the victim as tort law would”.  Finally, recognising these two new torts would not cause “unforeseeable or unknowable harm to Canadian law” because both slavery and forced labour are widely accepted to be illegal and morally reprehensible in Canada. 
Proposed new torts should not be recognised for the first time in this case
Having gone through the above analysis of whether the proposed new torts could be recognised, Brown and Rowe JJ go on to say that these two torts should not be recognised for the first time in the circumstances of the current case. Their reasoning is that the conduct alleged in this case occurred in a foreign territory, “where the workers had no connection to British Columbia at the time of the alleged torts, and where the British Columbian defendant has only an attenuated connection to the tort”. 
These aspects are relevant because the court should apply Eritrean law unless it finds that Eritrean law is “so repugnant to the fundamental morality of the Canadian legal system” that the courts would not apply it. In the former case, “judicial restraint would prevent the courts from recognizing a novel tort in Canadian law, because its application would be moot” and in the latter case “courts would be in the unfortunate position of setting out a position for the first time on these proposed new torts based on conduct that occurred in a foreign state”. 
Moreover, they note that recognising these new torts in such an “exceptional circumstance of a foreign state’s law being held by the court to be so repugnant to Canadian morality would be an intrusion into the executive’s dominion over foreign relations”.  In very categorical terms, Brown and Rowe JJ go on to note:
Our courts’ legitimacy depends on our place within the constitutional architecture of this country; Canadian courts have no legitimacy to write laws to govern matters in Eritrea, or to govern people in Eritrea. Developing Canadian law in order to respond to events in Eritrea is not the proper role of the court: that is a task that ought to be left to the executive, through the conduct of foreign relations, and to the legislatures and Parliament. 
This analysis is sound and the trial court will hopefully refrain from recognising the new torts in this case.