A New Duty of Care? Tort Liability from Voluntary Human Rights Due Diligence in Global Supply Chains

There are few international and domestic legal obligations that require corporations to prevent, monitor or respond to human rights abuses in their global supply chains. Nonetheless, some Canadian companies now voluntarily represent to carry out supply chain human rights due diligence. The author investigates whether these voluntary undertakings to prevent, monitor or respond could give rise to a positive duty to protect under tort law-an issue yet to be addressed in Canada. The author argues that the relationship between these Canadian corporations and their suppliers' employees could give rise to a duty of care; however, only in limited circumstances. Through the use of a hypothetical claim, the author highlights the key issues a potential plaintiff would have to overcome: most importantly, establishing that he relied on the corporation's representations. The author further argues that the traditional negligence test should be modified to reflect the developments in parent/subsidiary liability and the circumstances of global production. Finally, after establishing the limited circumstances that could give rise to a prima facie claim, the author reviews the relevant policy concerns. Despite the lack of legislative remedies for foreign workers suffering human rights abuses, the author's arguments provide hope that meaningful remedies may be available through a claim in tort if represented undertakings are carried out negligently.