Feb 5, 2019

Appeal court upholds dismissal of Bangladeshi garment workers' class action against Loblaws over deadly factory collapse

Das v. George Weston Limited, 2018 ONCA 1053 (CanLII)
February 5, 2019

Affirming a lower court ruling, the Ontario Court of Appeal dismissed the appeal of a class action lawsuit against Loblaws and its auditing firm Bureau Veritas brought on behalf of those injured and killed in the 2013 Rana Plaza factory collapse in Bangladesh. The Court held that the motion judge correctly determined that Bangladesh law governed the action, and therefore, that all claims except those of minor class members were statute-barred by the one-year limitation period under Bangladesh law. Affirming the motion judge's finding that Loblaws had no direct contractual relationship with the factory, which supplied apparel to a garment exporter hired by Loblaws, the Court held that Loblaws did not owe a duty of care to the garment workers and thus could not be held liable for negligence. Although Loblaws had contracted with Bureau Veritas to perform factory audits as part of its Corporate Social Responsibility program, the limited retainer had excluded structural inspections of the factory. Accordingly, the Court held that the motion judge had not erred in concluding that it was plain and obvious that the claims were not legally viable.

The Facts:

After an Ontario judge dismissed a class action lawsuit against Loblaws and its auditing firm brought on behalf of garment workers injured and killed in the 2013 Rana Plaza factory collapse in Bangladesh as lacking a viable cause of action, the garment workers appealed the decision.

Canadian company Loblaws was connected to Rana Plaza through its supply chain. Loblaws hired garment exporter Pearl Global to produce clothing for its Joe Fresh apparel line. Pearl Global, in turn, outsourced some of this work to New Wave Style, a company operating two factories in leased premises in Rana Plaza in Bangladesh, which was well-known for its substandard record of enforcing workplace safety standards. Rana Plaza was built in 2006 on a former pond, without proper approvals, as a six-floor commercial complex with mixed retail and office space; it was not designed for industrial use, meaning that its structure was not strong enough to bear the weight of industrial machinery. The plaza was subsequently expanded by two more floors, and in 2013, construction of a ninth floor to accommodate New Wave's expanding operations was nearing completion. At the time, five garment manufacturers, including New Wave as the largest manufacturer, were operating in the plaza, contrary to the zoning permit. Approximately half of the work New Wave was performing was for Loblaws.

On April 23, 2013, cracks in the building's structure were discovered, and the site was evacuated while a local engineer attended the plaza. That afternoon, New Wave's managers advised the employees that they were to return to work the next day. On that day, the plaza's owner assured the media that the building had been inspected and was safe. At 9 a.m. that morning, the building collapsed due to vibrations from back-up diesel engines turning on because of a power outage. A total of 1,130 people were killed and another 2,520 were injured.

Under Loblaws' agreement with Pearl Global, to which New Wave was not a party, Loblaws was authorized, but not required, to perform site inspections of its suppliers' factories. As well, in light of its practice of purchasing merchandise from around the world, Loblaws had developed and implemented Corporate Social Responsibility (CSR) standards, designed to oversee the operations of its suppliers and protect the safety of its employees in both Canada and globally. Although the standards, which were incorporated into the agreement with Pearl Global, addressed workplace health and safety, they did not explicitly address the structural integrity of buildings in which its suppliers operated. Under the agreement, Loblaws was entitled to end its business relationship with Pearl Global if it failed to comply with the CSR standards, but it had no contractual right to control the suppliers' operations, to order a supplier to shut down, or to hire, supervise, or fire employees of its suppliers.

Loblaws used a consulting company, Bureau Veritas, to perform "social audits" of its suppliers' factories, including the New Wave factories, to ensure compliance with its CSR standards, which included ensuring compliance with the following: Loblaws' code of conduct, a code of conduct developed by Bureau Veritas containing industry standards to address specific industry hazards, local workplace health and safety laws, and industry standards established by certain organizations such as the International Labour Organization. Although Bureau Veritas offered other services beyond a basic social audit for an additional cost, Loblaws' contract was limited to the basic social audit, and did not expressly require investigation of the building's structural integrity. Bureau Veritas performed site inspections of Rana Plaza in 2011 and 2012, and reported many instances of non-compliance relating to health and safety issues, including machine safety, hazardous materials, and clean water, but did not report on building integrity. Loblaws took no steps to insist on compliance.

On April 22, 2015, three injured garment workers and the parents of two sons and a daughter-in-law killed in the collapse brought an action pursuant to the Ontario Class Proceedings Act against Loblaws and Bureau Veritas, alleging that they were liable for negligence, and that Loblaws was also liable for vicarious negligence on behalf of its suppliers and for breach of fiduciary duty. They claimed general damages of $1.85 billion and punitive damages of $150 million among other remedies. The action was brought on behalf of survivors of the collapse as well as the estates and family members of individuals who died as a result of the collapse.

Loblaws and Bureau Veritas brought motions, under rule 21 of Ontario's Rules of Civil Procedure, to have the action dismissed on the basis that the court lacked jurisdiction over the subject matter of the action and because there was no viable cause of action.

Case History:

In a 135-page judgment dated July 5, 2017, 2017 ONSC 4129 (CanLII), reported in Lancaster's Employment Standards Law, February 8, 2018, eAlert No. 109, Justice Paul Perell of the Ontario Superior Court dismissed the garment workers' action, ruling that the claims were statute-barred under Bangladesh law with the exception of any claimants who were minors, and, further, that it was plain and obvious that the garment workers had no legally viable claims for torts (civil wrongs) or breach of fiduciary duty.

Turning to whether Bangladesh law or Ontario law governed the action, and relying on the Supreme Court of Canada's decision in Tolofson v. Jensen, 1994 CanLII 44 (SCC), in which the Court ruled that the law of the jurisdiction in which the wrongdoing occurred typically applies to tort claims, Perell held that Bangladesh law applied. In ruling this way, the judge declined to find that applying Bangladesh law would result in injustice, stating that he disagreed with the "fundamental premise" that Bangladesh law was unsophisticated, since it was based "largely … on the same common law roots as Canada." As well, although Perell accepted that Canadian courts will not apply a foreign law that violates fundamental Canadian values and that Bangladesh law incorporated Sharia law dictating that male heirs receive twice as much as female heirs, he held that very few claimants would be affected by this law and that the appropriate solution would be to sever that aspect of Bangladesh law in the quantification of compensation if the case got that far. Finally, in addition to holding that he was not satisfied that punitive damages were not available under Bangladesh law as the garment workers had claimed, Perell concluded that the absence of such damages would not work an injustice, observing that this was "not a policy decision that offends the essential morality and fundamental values of Canadian society."

Having concluded that Bangladesh law applied, Perell held that the actions were statute-barred under that country's Limitation Act, which provides, in sections 21 and 22, a one-year limitation period for fatal accidents and personal injuries, with the exception of those who were minors at the time of the collapse. To that end, noting that 14-year-olds may join the workforce in Bangladesh, Perell stated that "the claims, if any, of putative [c]lass [m]embers who were born on or after April 22, 1996, hence minors at the time of the collapse of Rana Plaza, are not statute-barred."

Addressing whether the negligence claim was legally viable in Bangladesh, the judge held that the claim failed in that jurisdiction based on the absence of a duty of care on the part of either Loblaws or Bureau Veritas. He rejected the opinion of the plaintiffs' expert that, under Bangladesh law, a duty of care could be founded on an "assumption of responsibility" theory, stating that "New Wave was not Loblaws' subsidiary; rather, it was a sub-supplier to one of Loblaws' subsidiaries and Loblaws had no direct control over New Wave and only limited indirect control over New Wave through its CSR standards and no control over the workplace [nor] over the employees working there." He further stated that "the imposition of liability is unfair given that the [d]efendants are not responsible for the vulnerability of the plaintiffs, did not create the dangerous workplace, had no control over the circumstances that were dangerous, and had no control over the employers or employees or other occupants of Rana Plaza." Moreover, Perell held that, if he were mistaken in concluding that Bangladesh law applied, it was also plain and obvious that there was no cause of action in negligence against Loblaws or Bureau Veritas under Ontario law since the relationship did not fall into a recognized category attracting a duty of care, nor were the criteria for establishing a new duty of care satisfied.

Perell also held that there was no viable claim that Loblaws bore vicarious liability under either Ontario or Bangladesh law, which he found were similar on this issue, given that Loblaws did not have a duty of care to the employees of Pearl Global or New Wave. Further, the breach of fiduciary claim against Loblaws could not succeed under either Bangladesh or Ontario law as Loblaws' relationship to the class members did not bear the hallmarks of a fiduciary relationship, again emphasizing the absence of any "legally significant relationship between Loblaws and the putative [c]lass [m]embers."

The garment workers appealed the Ontario Superior Court's decision to the Ontario Court of Appeal.

The Arguments:

The garment workers argued that Perell erred by failing to accept the pleaded facts as true, including the contention that Loblaws exercised control over New Wave's operations, and by holding that the law of Bangladesh governed the claims. On the latter point, they contended that the activities giving rise to the "wrong" – i.e. Loblaws' assumption of responsibility for worker safety and Bureau Veritas' negligent provision of professional advice, audit reports, and other services to Loblaws – occurred in Ontario, and again asserted that applying Bangladesh law would result in an injustice by virtue of its inclusion of Sharia law principles and the unavailability of punitive damages. The garment workers also argued that the motion judge erred by applying the one-year limitation period under sections 21 and 22 of the Limitation Act, instead of a six-year period, and by failing to apply s.13 of the statute, which tolls (pauses) the limitation period for "the time during which the defendant has been absent from Bangladesh," asserting that Loblaws had not been present in the country. Finally, they submitted that Loblaws owed a duty of care to the prospective class members since, by adopting CSR standards and visiting New Wave factories among other activities, the company undertook to ensure the safety of the buildings in which its apparel was made. In this regard, the garment workers contended that Perell failed to give effect to Indian caselaw, persuasive in Bangladesh courts, endorsing a liberal interpretation of the duty of care.

The arguments of Loblaws and Bureau Veritas are not set out in the decision; however, it is noted that, on appeal, the appellants did not argue that the motion judge erred in dismissing the fiduciary duty claim, and none of the grounds of appeal in the appellants' notice of appeal made reference to that claim.

The Decision:

In a 92-page decision, a three-member panel of the Ontario Court of Appeal dismissed the garment workers' appeal, holding that the motion judge had correctly concluded that it was plain and obvious that the tort claims against Loblaws and Bureau Veritas would not succeed. Writing for the panel, Justice Kathryn Feldman began her analysis with the standard of review, stating that the lower court's decision to apply the law of Bangladesh to the action would be reviewed on a reasonableness standard while its determinations concerning the content and application of Bangladesh law would be reviewed on a correctness standard. The judge remarked that, while there was some debate over the proper standard of review regarding the content and application of foreign law, for the purpose of the appeal she was prepared to apply the more stringent standard of correctness since she was in any event satisfied that Perell was correct in his findings on Bangladesh law. Additionally, Feldman rejected the contention that the motion judge failed to accept the pleaded facts as true, stating that "while the material facts that are pleaded in the statement of claim are assumed to be true for purposes of a motion to strike, bald conclusory statements of fact and allegations of legal conclusions unsupported by material facts are not." In this regard, she held that Perell had made "fair and proper" findings regarding what pleadings were facts as opposed to legal conclusions.

Conflict of laws

Next, Feldman endorsed Perell's conclusion that the law of Bangladesh applied, holding that he had properly applied both the Tolofson principle that the law of the place where the wrong occurred will govern a claim as well as the general tort principle that there is no actionable wrong without injury. Consequently, she held the injuries and deaths at Rana Plaza "crystallized the alleged wrong" giving rise to the tort claims, notwithstanding the fact that Loblaws made decisions regarding its CSR standards in Ontario. Similarly, she found no basis for interfering with Perell's refusal to exercise his discretion not to apply Bangladesh law on the basis of the injustice exception, endorsing his conclusions that Sharia law would not affect the rights of most claimants and could be severed where it did and that the unavailability of punitive damages under Bangladesh law, even if proven, was not the type of issue to offend fundamental Canadian values.

Statute of Limitations

Regarding the statute of limitations, Feldman affirmed Perell's determination that the one-year period under sections 21 and 22 of the Bangladesh Limitation Act applied, stating that both the clear language of the statute and the decision of the Appellate Division of the Supreme Court of Bangladesh in Bangladesh Beverage Industries Ltd. v. Rowshan Akhter (2016), 69 Dhaka L.R. 196 (S.C. Bangladesh App. Div.), favoured the application of the one-year limitation period for fatal accidents and personal injuries rather than the six-year period applicable where no other limitation period is specified. Feldman also discarded the claim that Indian caselaw supported the view that the limitation period ought to have been tolled in accordance with s.13 of the Limitation Act in light of Loblaws' absence from the country, holding that in Turner Morrison & Co. v. H. I. Trust Ltd., [1972] 3 S.C.R. (Ind.) 711, the Supreme Court of India had clarified that the equivalent tolling provision in India's Limitation Act "can be viewed in one of two ways, i.e. that that provision does not apply to incorporated companies at all or alternatively that the incorporated companies must be held to carry on their [activities] and thus [be] present in all those places." Applying this principle, Feldman held that, because Loblaws had engaged in activities in Bangladesh since 2006 with representatives visiting for inspection purposes on numerous occasions, "Loblaws would be held to reside not only in Ontario but also in Bangladesh for the purpose of … s.13 of the Limitation Act, 1908," and consequently, the limitation period was not tolled.

Duty of care

Considering whether it was plain and obvious that the negligence claims of the class of minor members – the only group whose claims were not statute-barred – would fail under Bangladesh law, Feldman noted that, since it was undisputed that the claims were novel under Bangladesh law, the question was whether persuasive English or Indian jurisprudence, which influenced the development of Bangladesh law, supported imposing a duty of care on Loblaws to protect the claimants from the harm resulting from structural defects at Rana Plaza. Beginning with English authorities, Feldman noted that whether a duty of care is owed in a particular situation requires consideration of three factors: (1) the foreseeability of harm; (2) a relationship of proximity; and (3) whether it is "fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other." Next, addressing caselaw relied on by the garment workers, Feldman acknowledged that these principles had been applied in Chandler v. Cape Plc, [2012] EWCA Civ. 525, a decision of the England and Wales Court of Appeal, to hold a parent company liable for the actions of its subsidiary, a brick and asbestos manufacturer, on the basis that it had dictated its subsidiary's health and safety policy and had assumed responsibility for ensuring that its subsidiary's employees were not exposed to asbestos by hiring a scientific and medical officer to address health and safety issues, among other measures. However, Feldman held that Chandler was factually distinguishable from the present case:

While the appellants seek to rely on the English case of Chandler, the determinative circumstances in that case are absent from the relationship between Loblaws and New Wave. First, they are not in a parent/subsidiary relationship. The nature of their proximity is completely different: New Wave could contract with any number of purchasers, none of which could have the kind of control present in a parent/subsidiary relationship. In any event, there was no contractual relationship between Loblaws and New Wave. Loblaws' contract was with Pearl Global. Second, Loblaws and New Wave are not in the same business. Third, while there is a pleading that Loblaws knew Rana Plaza had numerous structural deficiencies, it is not pleaded that Loblaws had superior knowledge or expertise about issues of structural safety in the working environment.

Fourth, although there is a pleading that Loblaws did not review and monitor the social audit reports to ensure that the audits were conducted in accordance with Loblaws' CSR Standards and other standards specified by Bureau Veritas, and did not follow up on the issues identified in Bureau Veritas' audit reports, those audits did not, nor were they intended to audit any structural issues in the New Wave factories.

In addition, Feldman found that more recent English caselaw regarding a parent company's duty to prevent harm caused by a subsidiary operating in a foreign jurisdiction further militated against imposing a novel duty of care in the present case. In both Okpabi v. Royal Dutch Shell Plc, [2018] EWCA Civ. 191, and AAA v. Unilever Plc, [2018] EWCA Civ. 1532, the England and Wales Court of Appeal held that the pleaded facts did not establish a "good arguable case" for finding that parent companies owed a duty of care to individuals affected by the activities of their subsidiaries: in Okpabi, the majority of the Court found that the parent company did not exercise a sufficient degree of control over its subsidiaries' oil pipeline operations to support the necessary proximity; and in Unilever, the Court found that the parent company had not provided any advice to its overseas subsidiary regarding the risk management of political violence and that the subsidiary knew it was responsible for devising its own policy on the matter. While in a third case, Lungowe v. Vedanta Resources Plc, [2017] EWCA Civ. 1528, the Court of Appeal held that there was a "good arguable case" to impose a duty of care on a parent company for the mining activities of a subsidiary alleged to have polluted waterways in Zambia, as that conclusion was based on evidence of the parent company's direct control over its subsidiary. In the instant case, Feldman held that Perell had properly concluded that Loblaws had not assumed responsibility for and thus did not owe a duty of care to New Wave employees.

Addressing the garment workers' argument that Perell failed to give effect to Indian caselaw endorsing a more liberal approach to the expansion of tort law, Feldman stated that "it would be pure speculation to find that, despite the courts' incremental approach to the development of the law on duty of care, a Bangladeshi court would go far beyond the parameters recently developed by the English courts on this current, dynamic jurisprudential issue," adding that the Indian jurisprudence in fact also spoke to "evolution, not revolution" in regard to the development of tort law and further, that such a finding would have required the motion judge to develop a cogent legal analysis with no existing foundation in caselaw.

Regarding the negligence claim against Bureau Veritas, Feldman again held that the lower court had correctly concluded that it was plain and obvious that the garment workers' pleaded claim would fail given that the auditing firm's contract omitted structural audits of the New Wave factories and the garment workers had not cited any caselaw in which a duty of care had been imposed on a service provider to a third party to perform an activity beyond the scope of its retainer. The judge also stated that Perell had properly concluded that the termination of Bureau Veritas' retainer with Loblaws before the discovery of the cracks that caused the collapse further precluded finding that the auditing firm owed a duty of care in respect of the collapse.

Vicarious liability

Dealing lastly with vicarious liability, Feldman observed that the garment workers had failed to plead that either Pearl Global or New Wave was acting as an agent for, or on behalf of, Loblaws in conducting its operations – one of the conditions for imposing vicarious liability under Bangladesh law – and that the broad principle of absolute liability adopted by the Supreme Court of India in M.C. Mehta v. Union of India, [1987] All Ind. R. 1086 (S.C.), according to which companies operating in dangerous industries owe a non-delegable duty to surrounding communities to ensure no harm results from their activities, was not relevant to the present case since garment manufacturing was not an inherently dangerous activity. Additionally, despite acknowledging that English courts, in a small number of cases, had imposed vicarious liability for the wrongdoing of an independent contractor based on a non-delegable duty, Feldman held that the motion judge correctly held that such liability could not be identified in the present case given that neither Pearl Global nor New Wave were agents, employees, or independent contractors of Loblaws and because it had already been established that Loblaws did not owe a duty of care or a non-delegable duty to the garment workers.

In the result, the Court dismissed the garment workers' appeal, affirming the lower court's ruling that it was plain and obvious that the majority of claims would be statute-barred under Bangladesh law and that the remaining claims would fail on the basis that neither Loblaws nor Bureau Veritas owed a duty of care to New Wave employees.

Comment:

Following the factory collapse at Rana Plaza in 2013, more than 200 fashion brands signed on to an Accord on Fire and Building Safety in Bangladesh. Under the five-year Accord, engineers carried out fire, electrical, and structural safety inspections at more than 1,800 factories and identified 118,500 hazards, leading to the remediation of many factories. On June 29, 2017, signatories to the agreement renewed their commitment by entering into a new Accord on Fire and Building Safety in Bangladesh. The new agreement was to extend independent, expert building safety inspections for three more years to all covered factories, ensuring that safety improvements achieved under the first Accord will be maintained and that new problems in any factory will be addressed. It also puts greater emphasis on the right of workers to organize and join a union, and includes enhanced protections for workers whose factories are closed or relocated due to the implementation of the agreement.

However, the future of the renewed Accord is in doubt. In May 2018, the High Court in Bangladesh ordered the Accord to stop its work and close its Dhaka office by November 30, 2018, ruling that responsibility for enforcing safety should be transitioned back to the Bangladesh government and its inspectors. Both labour activists and a number of brands protested the court's ruling, with the Accord appealing the decision to the Bangladesh Supreme Court. The Supreme Court issued a stay, and hearings scheduled for December 6 and December 17, 2018 were postponed to allow the government and the members of the Accord an opportunity to negotiate a solution. A further hearing scheduled for January 21, 2019 was adjourned to February 18, 2019, and, according to the Bangladesh Supreme Court website, the interim order staying the lower court ruling is continued to that date.

If the lower court ruling is upheld, the work of the Accord will be significantly impeded, as any inspections undertaken by the Accord will have to be approved by the government and/or government committees, and the Accord will no longer be able to take direct action against factory owners who refuse to comply. Further, official inspections and orders to ensure effective remediation of issues in the approximately 1,650 factories covered by the Accord will be carried out only by the government, which, by all accounts, has neither the resources nor the technical expertise – let alone the political will – to undertake the task. Indeed, activists have questioned whether the government can ever be relied upon to effectively inspect the factories, since many garment manufacturers sit in parliament, and the industry generates 82% of the country's exports. (see Lancaster's Labour Law News, April 17, 2018, eAlert No. 428).

The inclusion of an arbitration mechanism under the Accord has resulted in brands being held accountable for safety violations at factories in their supply chain. Pursuant to the Accord's arbitration provisions, international unions IndustriALL and UNI Global Union commenced two legal proceedings in 2016 against multinational fashion brands for failing to require contracted factories to remedy hazards in a timely manner, thus exposing employees to dangerous working conditions. Settlements were reached in 2017 and 2018, with the latter requiring one brand to pay $2 million to fix issues at more than 150 garment factories in Bangladesh and to disburse $300,000 to the supply chain worker support fund, a joint fund managed by the two unions that brought the case.

Although civil litigation brought on behalf of garment workers injured and killed at Rana Plaza has proven unsuccessful – in 2016, the U.S. Delaware Court dismissed a similar class action law suit against the American retailers J.C. Penny, The Children's Place, and Walmart on the basis that they did not owe a duty of care to the employees of factories operating in Rana Plaza – victims of the factory collapse received some compensation from the Rana Plaza Donors Trust Fund, an independent fund established to provide support to victims and their families. Donors included global retailers, textile companies, trade unions, and NGOs.

As well, in Bangladesh, 38 individuals, including Sohel Rana, the owner of Rana Plaza, have been charged with murder in relation to the factory collapse, though progress in the legal proceedings has been slow. However, in 2017, Sohel Rana was convicted of corruption and sentenced to three years in prison after Bangladesh's Anti-Corruption Commission filed a case against him for unaccounted income.

Interestingly, the case under review includes notably less discussion of CSR standards than Perell's judgment. In concluding that it would be unfair to hold Loblaws liable for the activities of its sub-suppliers, Perell gave more weight to policy considerations in his reasons, opining that imposing such liability would effectively punish corporations for voluntarily adopting CSR standards:

… Loblaws' [alleged] liability is based on it voluntarily assuming a duty of care by developing and promulgating ethical purchasing practices (CSR standards,) which one would like to think is a good thing, but from an exposure to liability perspective, Loblaws would have been far better off if it had not developed and promulgated its CSR standards, and in the future it and others would be far better off not doing business with Bangladesh rather than relying on CSR standards, which as demonstrated by the case at bar, do not insulate a business from liability but rather attract claims, including allegations that the duty of care was breached because the CSR standards were inadequate to protect a supplier's or sub-supplier's employees.

However, Perell's reasoning has subsequently attracted criticism from Osgoode Hall Law Professor David Doorey. In his article "Lost in Translation: Rana Plaza, Loblaw, and the Disconnect Between Legal Formality and Corporate Social Responsibility," Professor Doorey highlighted problems inherent in Perell's view of CSR:

This conclusion could lead one to ask an obvious question: If Loblaws had no capacity to improve the lives and safety of workers at New Wave, then what was the purpose of Loblaws' CSR program, which was clearly intended to suggest otherwise? However, Loblaws' impotent CSR program attracted no derision from the Court. To the contrary, Justice Perell strongly insists that Loblaws should be praised for its CSR efforts. He rules that the law should be careful not to discourage companies from following Loblaws' exemplary CSR lead and from sourcing from low-wage, high risk factories….

[Perell] appears genuinely to believe that businesses should engage in CSR because it can help workers. However, he fails to appreciate the difference between genuine and window-dressing CSR, and between code monitoring on one hand, and enforcement and remediation on the other hand. This leads him to the erroneous conclusion that any cosmetic attempt at CSR is better than no attempt at all. But window-dressing CSR benefits no one but the company seeking to use it to mislead the public into believing supply chain workers are safer. Everyone else, including the workers and other businesses investing in genuine CSR, would be better off if the law produced clear disincentives to engaging in the practice of misinformation through window-dressing CSR.

Given this critique, it unsurprising that the Court of Appeal largely confined its analysis to transnational negligence law and avoided discussion of the legal policy considerations flowing from the adoption of CSR standards.

The instant case is one of several proceedings currently before Canadian courts regarding the liability of Canadian corporations for overseas activities, some of which concern a parent corporation's alleged direct involvement in negligence and human rights violations by subsidiaries and thus may have a stronger chance of proceeding to trial (see Lancaster's Labour Law News, August 27, 2018, eAlert No. 437).