In the spirit of increased collegiality and collaboration within the Canadian legal blogging community, LawisCool.com and TheCourt.ca have set aside their heated rivalry to bring you their first ever joint posting. What follows is a commentary on the interesting case of Piedra v. Copper Mesa Mining Corporation, 2010 ONSC 2421.

Commentator for LawisCool.com: Omar Ha-Redeye, Juris Doctor, University of Western Ontario; founding contributor of LawisCool.com

Commetator for TheCourt.ca: James Yap, Juris Doctor, Osgoode Hall Law School, York University; former Senior Contributing Editor, TheCourt.ca.

The Facts

Copper Mesa Mining Corporation is a Canadian company based in British Columbia who planned through one of its subsidiaries to build an open pit copper mine in the Intag cloud forest just south-west of The Cotacachi Cayapas Ecological Reserve, an area of the Andes Mountains of Ecuador. The company is listed on the Toronto Stock Exchange (TSX), but it does not have significant assets or operations in the province of Ontario aside from two of its non-management directors residing in the province.

The Plaintiffs in the case are local activists in Ecuador who have opposed the mine, on the grounds that it will create major deforestation and desertification in the area and threaten more than a dozen animals with extinction. They allege that Copper Mesa through its agents used armed assaults and death threats to intimidate the local activists. Due to a perceived inability to hold Copper Mesa accountable in their country, the Plaintiffs brought a suit in Ontario against Copper Mesa, its directors, and the TSX.

The most novel aspect of the suit is the claim against the TSX for approving and listing Copper Mesa on the exchange, resulting in an influx of capital that would allegedly be used for further intimidation and violence against opponents. Local politicians in Ecuador and environmental supporters in Canada had brought the human rights allegations to the attention of the TSX before its listing. Further, the final prospectus filed by Copper Mesa’s subsidiary to the TSX acknowledge the existence of the conflict,

“[t]ensions surrounding potential exploration and mining work on the Junin property have risen, creating the potential of further escalating violence unless steps are taken to diffuse the situation,” and goes on to report a specific incident in which members of an “anti-mining group” felt “threatened”;

The liability, according to the Plaintiffs, flows from the failure to take any steps to avoid the violence, and that the Defendants knew or ought to have known that violence would ensue if the Copper Mesa subsidiary was financed through the TSX, and should have taken measures to ensure funds raised were not used for improper purposes.  The project was highly dependent on funding from the TSX, with over 80% of the US$26.7 million raised by the Copper Mesa subsidiary raised on the TSX alone. According to the Plaintiffs, it was a brokered private placement of shares approved by the TSX that raised US$4.5 million that allowed Copper Mesa to hire the private security forces allegedly responsible for the armed assaults that form the basis of the claim.

The TSX is considered a specialized exchange for mining, and over 60% of the world’s mining companies are listed on the TSX and related exchanges.

The Decision

This comment will only deal with the claim against the TSX, which is the more novel aspect of this litigation. Campbell J. began by enunciating the governing test, which is that laid out in Anns v. Merton London Borough Council, [1978] A.C. 728. Under that well-established test, the requirements for a duty of care owed by the defendant are the twin criteria of proximity and foreseeability. With respect to the former, Campbell J. concluded that there is simply “no connection between the Plaintiffs and the TSX Defendants.” Likening the TSX to a “voluntary regulator,” he reasoned that such an entity could not be found liable in tort for the adequacy of its regulatory activities. As for foreseeability, Campbell J. reasoned that “[i]n order to foresee [the alleged] harm, the TSX Defendants would have had to foresee political and business events in Ecuador which allegedly led to unlawful conduct by agents of Copper Mesa. Such a chain of events was not foreseeable or reasonably foreseeable.”

LawisCool.com (Omar Ha-Redeye):

I agree with the decision rendered by Campell J. in striking the action on a Rule 21 motion. To be clear, the grievances of the Plaintiffs are real and decidedly unfortunate. But sympathies alone cannot guide the actions of a court.

Rule 21 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states,

RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL

WHERE AVAILABLE
To Any Party on a Question of Law
21.01 (1)  A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.
[emphasis added]

The Plaintiffs have based their opposition to the motion largely on the basis of R. 21.01(1)(b), that there is no reasonable cause of action. They correctly invoke Hunt v. Carey Canada Inc. in para. 27 of their Responding Factum, and state that the novelty of a cause of action should not by itself result in it being struck.

But it’s not just the question of novelty of the cause against the TSX that provides a basis for striking the cause. There are significant questions of proximity that can be put to question here, and the Plaintiffs assertion of an existing duty of care to individuals from an entirely different jurisdiction where the TSX has very limited direct influence is suspect. As noted in the facts, it was the inability of the Plaintiffs to hold Copper Mesa accountable in their country that resulted in the proceedings being issued in Ontario. Although corruption, intimidation, violence and environmental harm are all regrettable, again, the courts cannot be led by sympathies alone.

As Campell J. indicates in para. 38, the TSX is governed by the Securities Act, R.S.O. 1990, c. S.5. There is no ambiguity about the purpose of the Act,

Purposes of Act
1.1 The purposes of this Act are,
(a) to provide protection to investors from unfair, improper or fraudulent practices; and
(b) to foster fair and efficient capital markets and confidence in capital markets.
[emphasis added]

The main functioning role of the TSX then is to protect investors, and not those that might be affected by enterprises that those investors engage in. The TSX also plays the role of maintaining the function of the exchange, of which confidence in the market is a significant aspect. Neither of these roles provides a duty of care to the Plaintiffs, and in fact, creating a duty of care could arguably undermine confidence in the markets by exposing capital to litigation from functions remotely distant from the regulatory function of the exchange. I know of no other statute in the jurisdiction of Ontario that would provide a statutory cause of action of this type.

For this reason, the Plaintiffs are incorrect when they say in para. 38 of their Responding Factum that, “There are no negative policy implications sufficient to negate a duty of care.” The policy reasons above would also be sufficient to negate the second branch of the Cooper-Anns test, thereby preventing the creation of a new duty of care by the courts. There are even additional policy considerations in R. 21.01(1)(a) that emphasize the role of the courts in conserving costs and avoiding unnecessary litigation that could burden the judicial system. Creating a new cause of action of this type without any restrictions or constraints could potentially open the floodgates to all sorts of litigation related to ancillary actions of multinational conglomerates with only tenuous connections to Ontario, thereby overwhelming our court system even further.

However, the Plaintiffs also invoke in para. 38 what they call an “overwhelming policy reasons to recognize such a duty.” If the nature of Canadian investments is such that they are overwhelmingly affecting the indigenous peoples of other nations adversely in a manner that compromises our values and human rights, this could potentially affect confidence in the market, especially given the specialized nature of the TSX for mining and exploration companies. The Plaintiffs cite Justice Ian Binnie in para. 88 of the Responding Factum, indicating that governance gaps make it difficult to redress human rights abuses committed by private enterprise,

The root cause of the business and human rights predicament lies in the governance gaps created by globalization—between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. These governance gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation.

The proper venue to address this governance gap is the body responsible for governance, namely the legislature. It is the legislature that determines appropriate sanctions and reparations, especially when dealing with the highly politicized nature of globalization. Committees can analyze the economic repercussions of such sanctions, the appropriate scope, and maintain the proper balance between various interests. As Campell J. states in his decision,

[53] If there were policy considerations that would favour extending liability as sought by the Plaintiffs, such policy would be appropriately be a matter for the legislatures and not the courts, at least on these facts.

Fortunately, Parliament is undergoing this exact endeavour right now. Bill C-300, An Act respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries, goes into its Third Reading this Fall Session, and is scheduled for its first hour of debate on the very first day that MPs return to session, September 20, 2010. The Standing Committee on Foreign Affairs and International Development (FAAE) has already heard evidence on this Private-Member’s Bill. And rather than create a statutory cause of action as sought by the Plaintiffs in this case, the Act would provide the Minister of Foreign Affairs and the Minister of International Trade the responsibility of holding corporations accountable by submitting annual reports to the House and Senate. For now, this is the appropriate balance that the elected representatives of Canadians have identified. If through their reports they identify a pressing and compelling problem, a carefully-tailored Canadian version of the American Alien Tort Claims Act might be appropriate, but until then foreign citizens lack standing to issue such claim, and Ontario courts lack jurisdiction to hear them.

Consequently, my opinion is that even if the Plaintiffs were successful above under R. 21.01(1), they would subsequently fail at R. 21.01(3), which provides the Defendants specific grounds for dismissing a motion,

To Defendant
(3)  A defendant may move before a judge to have an action stayed or dismissed on the ground that,
Jurisdiction
(a) the court has no jurisdiction over the subject matter of the action;
Capacity
(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;

Although Campbell J. did not discuss this element of the claim, it’s my opinion that the claim would also fail on jurisdictional and capacity grounds. This would provide an additional basis for dismissing the action under R. 21.01(1)(a) by disposing the action in its entirety.

The test used in Ontario for determining the proper jurisdiction is the real and substantial connection test. A jurisdiction does not have to present the most or strongest connection, just a real and substantial connection. There is a rather tenuous connection between the Defendants and the province of Ontario, and the TSX seems to almost be a fortuitous factor rather than a direct party causing the alleged harm. The connection to the Plaintiffs is even more remote, and it’s difficult to see what connection, if any, they have to the Province of Ontario. After the Court of Appeal’s decision in Van Breda v. Village Resorts Limited, the primary focus for determining a real and substantial connection is the first two factors of the “Muscutt test,” namely the respective connections of the Plaintiff and the Defendant to the proposed jurisdiction. Applying the test to this case would likely result in the court finding that a strong connection does not exist. Also, a motion by Defendants for forum non conveniens would likely have followed a successful ruling on this motion, as all the witnesses and evidence of the alleged harm are more properly located in Ecuador, especially if the TSX was struck as a Defendant.

Despite supporting the decision by Campbell J., I do think the case of Piedra v. Copper Mesa Mining Corporation has been a success. If the proper venue for recourse is in the legislature, it requires supporters of Ecuadorian activists to raise awareness here in Canada. This case has done just that by bringing to light the very serious nature of Canadian complicity in human rights violations abroad. Ideally this case, and others like it, will be vigorously discussed in Committee, the House and the Senate. It will require members of the Canadian public to support the passing of Bill C-300. And ultimately it might fall upon the conscience of Canadians to allow our courts to adjudicate human rights issues abroad against corporations with ties to our society. But until then the cause of action brought in Piedra against the TSX is not likely to successful, and in my opinion it should not be and is properly struck on a Rule 21 motion.

TheCourt.ca (James Yap):

I am not quite so convinced. It seems to me that Campbell J. is a step too hasty to characterize the TSX as a mere “voluntary regulator.” Such language seems to imply that the TSX has a merely regulatory function, akin to any state regulatory body. However, this is not strictly so – in reality, the TSX’s activities go much deeper than this. As Campbell J. in fact acknowledges, the TSX is not a state body but a private for-profit corporation. A duty of care thus need not derive from statute, the TSX may be subject to the same duties as other private actors. On the face of things it appears equally plausible, as the plaintiffs argued, to characterize the TSX as a private for-profit entity which holds out a service to the paying public – a service which, in the Copper Mesa case, may have led to the commission of a tort. Framed in such terms, the suggestion that the TSX may be liable in tort becomes much more palatable – akin, for instance, to a firearms dealer who sells a weapon to a customer in the knowledge that the customer intends to use it for an unlawful purpose. It is regrettable that Campbell J.’s analysis does not contain more thorough and deliberate reasoning as to why one characterization describes the TSX’s role more accurately than the other. Hopefully the Court of Appeal’s analysis will delve into greater depth.

Further, I am not sure that Campbell J. is asking the right question when he reasons that “[i]n order to foresee [the alleged] harm, the TSX Defendants would have had to foresee political and business events in Ecuador which allegedly led to unlawful conduct by agents of Copper Mesa. Such a chain of events was not foreseeable or reasonably foreseeable.” The question of foreseeability should not focus on whether the precise events that led to the harm were foreseeable, but on whether harm itself – regardless of the specifics of how it may have come about – was generally foreseeable (see e.g. Hughes v. Lord Advocate, [1963] UKHL 8 – although admittedly this case discusses foreseeability in the context of remoteness and not duty of care). As such, the question should not be whether the TSX should have foreseen the precise “political and business events” that allegedly led to the harm, but whether the TSX, given what it knew about the situation, should have foreseen that allowing Copper Mesa to raise funds on the exchange would have led to greater violence.

In light of all this, I am not so convinced that it is “plain and obvious,” as is the standard on a Rule 21 motion, that the plaintiffs do not have a reasonable cause of action. The plaintiffs’ claim is certainly novel and has its more tenuous aspects. However, this is not a sufficient basis to deny them their day in court altogether.

As my colleague suggests, however, even if the plaintiffs are successful on appeal they will face many difficult legal hurdles later on (although unlike my colleague, I am not convinced that jurisdiction is one – particularly with respect to forum non conveniens, where the joinder of the TSX would make it difficult to establish that another forum is clearly more appropriate. Tellingly, the defendants never filed a forum non conveniens motion – although it is still open for them to do so in future.). Ultimately, Campbell J. may have done little more than save the plaintiffs several years’ worth of expensive litigation costs.