Piedra et al. v. Copper Mesa Mining Corp. et al., (2011) 280 O.A.C. 1 (CA)

• Judge: Rosenberg, Simmons and Cronk, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 25, 2010
• Jurisdiction: Ontario
• Citations: (2011), 280 O.A.C. 1 (CA);2011 ONCA 191

Piedra v. Copper Mesa Mining (2011), 280 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. MR.010

Marcia Luzmila Ramírez Piedra, Jaime Polivio Pérez Lucero, and Israel Pérez Lucero (plaintiffs/appellants) v. Copper Mesa Mining Corporation, William Stearns Vaughan, John Gammon and TSX Inc., TSX Group Inc. (defendants/respondents)

(C52250)

Marcia Luzmila Ramírez Piedra, Jaime Polivio Pérez Lucero, and Israel Pérez Lucero (plaintiffs/appellants) v. Copper Mesa Mining Corporation, William Stearns Vaughan, John Gammon and TSX Inc., TSX Group Inc. (defendants/respondents)

(C52251; 2011 ONCA 191)

Indexed As: Piedra et al. v. Copper Mesa Mining Corp. et al.

Ontario Court of Appeal

Rosenberg, Simmons and Cronk, JJ.A.

March 11, 2011.

Summary:

Copper Mesa's shares were listed for trade on the Toronto Stock Exchange (TSE), which was run by TSX. A subsidiary of Copper Mesa proposed to carry out a mining project in the Junín area of Ecuador. The plaintiffs, citizens of Ecuador, were opposed to the project. They sued Copper Mesa, two of its directors and the TSX, for damages for injuries suffered as a result of assaults and threats allegedly carried out by security forces and other agents of Copper Mesa in response to "widespread and sustained local opposition" to the Junín project. The defendants moved to strike the statement of claim. The plaintiffs moved for leave to amend it.

The Ontario Superior Court, in a decision reported [2010] O.T.C. Uned. 2421, allowed the defendants' motion and dismissed the plaintiffs' motion. The plaintiffs appealed.

The Ontario Court of Appeal dismissed the appeal.

Company Law - Topic 4183

Directors - Liability of directors - For torts - A subsidiary of Copper Mesa, a Canadian corporation, proposed to carry out a mining project in the Junín area of Ecuador - The plaintiffs, citizens of Ecuador, were opposed to the project - They sued Copper Mesa and two of its non-management directors for damages for injuries suffered as a result of assaults and threats allegedly carried out by security forces and other agents of Copper Mesa in response to "widespread and sustained local opposition" to the Junín project - The Ontario Court of Appeal affirmed the striking of the statement of claim for failure to disclose a cause of action - The plaintiffs did not plead the material facts necessary to anchor the imposition of private law duties of care or to establish the breach of those duties by the directors - There was no suggestion that the directors had any direct personal involvement in the complained of acts in Ecuador - Neither the foreseeability nor the proximity requirements were met - The plaintiffs were unable to point out any authority for the proposition that personal liability attached to an officer or director on the basis that they were personally liable for the torts alleged simply because they were an officer or director - See paragraphs 72 to 92.

Company Law - Topic 4566

Officers and agents - Liability - General - For tortious acts - [See Company Law - Topic 4183 ].

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances when amendment denied - Copper Mesa's shares were listed for trade on the Toronto Stock Exchange (TSE), which was run by TSX - A subsidiary of Copper Mesa proposed to carry out a mining project in the Junín area of Ecuador - The plaintiffs, citizens of Ecuador, were opposed to the project - They sued Copper Mesa, two of its non-management directors and TSX, for damages for injuries suffered as a result of assaults and threats allegedly carried out by security forces and other agents of Copper Mesa in response to "widespread and sustained local opposition" to the Junín project - The defendants moved to strike the statement of claim - The plaintiffs moved for leave to amend it - The motion judge allowed the defendants' motion and dismissed the plaintiffs' motion - The Ontario Court of Appeal affirmed the decision - The plaintiffs failed to disclose a cause of action in that their pleadings failed to indicate that the defendants owed them a duty of care - Although the plaintiffs now argued that further material facts could be pleaded to support their claims, the suggested additional facts would not affect the key question of whether duties of care of the type asserted should be recognized against the defendants - See paragraphs 93 to 98.

Securities Regulation - Topic 1402

Exchanges - Liability of - Copper Mesa's shares were listed for trade on the Toronto Stock Exchange (TSE), which was run by TSX - A subsidiary of Copper Mesa proposed to carry out a mining project in the Junín area of Ecuador - The plaintiffs, citizens of Ecuador, were opposed to the project - They sued Copper Mesa and TSX, for damages for injuries suffered as a result of assaults and threats allegedly carried out by security forces and other agents of Copper Mesa in response to "widespread and sustained local opposition" to the Junín project - As against TSX, the plaintiffs alleged that the assaults and threats could not have been committed without access by Copper Mesa to the substantial funds raised by it through a private placement and otherwise following the listing of its shares on the TSE - The Ontario Court of Appeal affirmed the striking of the statement of claim for failure to disclose a cause of action - TSX did not owe a duty of care to the plaintiffs, as neither the foreseeability nor the proximity requirements were met - As for foreseeability, the plaintiffs' pleadings did not indicate that TSX ought reasonably to have had the plaintiffs or their interests in mind in deciding whether to list Copper Mesa's shares on the TSE - The plaintiffs were not investors or shareholders in Copper Mesa and TSX did not have sufficient knowledge of potential "serious harm" to opponents of the Junín project if Copper Mesa's shares were listed - As for proximity, there was no relationship between TSX and the plaintiffs that would have obliged TSX to be mindful of the plaintiffs' interests when conducting its affairs - In addition, TSX and the TSE, by statute, owed their duties to the public at large - See paragraphs 38 to 71.

Cases Noticed:

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), consd. [para. 27].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, consd. [para. 27].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268, consd. [para. 27].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388, consd. [para. 27].

Williams v. Canada (Attorney General) et al. (2009), 249 O.A.C. 150; 95 O.R.(3d) 401 (C.A.), leave to appeal refused (2009), 403 N.R. 400; 263 O.A.C. 400 (S.C.C.), consd. [para. 28].

Morgis et al. v. Thomson Kernaghan & Co. et al. (2003), 174 O.A.C. 104; 65 O.R.(3d) 321 (C.A.), leave to appeal refused (2004), 329 N.R. 400; 195 O.A.C. 400 (S.C.C.), refd to. [para. 29].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, consd. [para. 36].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201, refd to. [para. 36].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 36].

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161, consd. [para. 42].

B.D. v. Syl Apps Secure Treatment Centre - see B.D. et al. v. Children's Aid Society of Halton Region et al.

ADGA Systems International Ltd. v. Valcom Ltd. et al. (1999), 117 O.A.C. 39; 43 O.R.(3d) 101 (C.A.), leave to appeal refused (2000), 254 N.R. 400; 134 O.A.C. 400 (S.C.C.), consd. [para. 73].

Montreal Trust Co. of Canada et al. v. Scotia McLeod Inc. et al. (1995), 87 O.A.C. 129; 26 O.R.(3d) 481 (C.A.), leave to appeal refused (1996), 205 N.R. 314; 95 O.A.C. 399 (S.C.C.), consd. [para. 73].

Normart Management Ltd. v. West Hill Redevelopment Co. et al. (1998), 113 O.A.C. 375; 37 O.R.(3d) 97 (C.A.), refd to. [para. 73].

Jama v. McDonald's Restaurants of Canada Ltd. et al., [2001] O.T.C. 203 (Sup. Ct.), consd. [para. 75].

Nielsen Estate et al. v. Epton et al. (2006), 392 A.R. 81 (Q.B.), affd. in part (2006), 401 A.R. 63; 391 W.A.C. 63; 277 D.L.R.(4th) 267 (C.A.), refd to. [para. 91].

Anger et al. v. Berkshire Investment Group Inc. et al. (2001), 141 O.A.C. 301 (C.A.), refd to. [para. 91].

United Canadian Malt Ltd. v. Outboard Marine Corp. of Canada Ltd. et al., [2000] O.T.C. 322; 48 O.R.(3d) 352 (Sup. Ct.), refd to. [para. 91].

Berger v. Willowdale A.M.C. et al. - see Falkenberg v. Berger.

Falkenberg v. Berger (1983), 41 O.R.(2d) 89 (C.A.), leave to appeal refused (1983), 50 N.R. 399 (S.C.C.), refd to. [para. 91].

Adelaide Capital Corp. v. Toronto-Dominion Bank - see South Holly Holdings Ltd. v. Toronto-Dominion Bank et al.

South Holly Holdings Ltd. v. Toronto-Dominion Bank et al., [2007] O.A.C. Uned. 247; 2007 ONCA 456, refd to. [para. 94].

Taylor et al. v. Tamboril Cigar Co. et al., [2005] O.A.C. Uned. 432; 2005 CarswellOnt 4775 (C.A.), refd to. [para. 94].

Heydary Hamilton Professional Corp. v. Hanuka - see Heydary Hamilton Professional Corp. v. Baweja et al.

Heydary Hamilton Professional Corp. v. Baweja et al. (2010), 272 O.A.C. 271; 2010 ONCA 881, refd to. [para. 94].

Counsel:

Murray Klippenstein and W. Cory Wanless, for the appellants;

Peter H. Griffin and Andrew Parley, for the respondents, the TSX defendants;

John Keefe, Julie Rosenthal and Peter Kolla, for the respondents, the Copper Mesa defendants.

This appeal was heard on November 25, 2010, by Rosenberg, Simmons and Cronk, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Cronk, J.A., and released on March 11, 2011.