COURT FILE NO.: 464/09
DATE: 20091127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MARCIA LUZMILA RAMÍREZ PIEDRA, JAIME POLIVIO PÉREZ LUCERO and ISRAEL PÉREZ LUCERO
Plaintiffs/Moving Parties
- and -
TSX INC., TSX GROUP INC., WILLIAM STEARNS VAUGHAN and JOHN GAMMON
Defendants/Respondents
AND BETWEEN:
MARCIA LUZMILA RAMÍREZ PIEDRA, JAIME POLIVIO PÉREZ LUCERO and ISRAEL PÉREZ LUCERO
Plaintiffs/Moving Parties
- and –
COPPER MESA MINING CORPORATION, WILLIAM STEARNS VAUGHAN and JOHN GAMMON
Defendants/Respondents
AND BETWEEN:
MARCIA LUZMILA RAMÍREZ PIEDRA, JAIME POLIVIO PÉREZ LUCERO and ISRAEL PÉREZ LUCERO
Plaintiffs/Moving Parties
- and –
COPPER MESA MINING CORPORATION, TSX INC., TSX GROUP INC., WILLIAM STEARNS VAUGHAN and JOHN GAMMON
Defendants/Respondents
Murray Klippenstein and W. Cory Wanless, for the Plaintiffs
Peter H. Griffin and Andrew Parley, for the Defendants
John A. Keefe and Peter Kolla, for the Defendants
HEARD at Toronto: November 27, 2009
LEDERMAN J.: (Orally)
[1] The plaintiffs seek leave to appeal the interlocutory order of the Motions Judge, Newbould J., transferring three related actions from the civil list to the Commercial List of the Court.
[2] The plaintiffs base their leave motion on Rule 62.02(4)(b), the test being that there is good reason to doubt the correctness of the order and the proposed appeal involves matters of such importance that leave to appeal should be granted. In order to succeed, the plaintiffs must satisfy both branches of this subrule.
[3] In the actions, which are to be consolidated, the plaintiffs allege that the defendant, Copper Mesa Mining Corp. (“Copper Mesa”), a Canadian public company, in engaging in mining exploration in Ecuador has participated in a campaign of intimidation, harassment and violence against individuals who are opposed to its open pit mining operation.
[4] The plaintiffs allege that the TSX defendants were negligent in breaching their duty of care by listing Copper Mesa on the Toronto Stock Exchange, thereby allowing Copper Mesa to raise substantial amounts of capital which has been used to finance unlawful actions against the plaintiffs, causing them harm.
[5] The plaintiffs also allege that the defendants Vaughan and Gammon, who were Directors of Copper Mesa, were negligent and breached their duty of care by operating the company in a manner that created a high risk of violence to and did result in harm to the plaintiffs.
[6] The plaintiffs allege that Copper Mesa is vicariously libel for the alleged harms caused to the plaintiffs by the two Directors.
[7] The plaintiffs submit that the claims against the TSX defendants and the two Directors of Copper Mesa are based on the common law of negligence and are not founded on any statutes.
[8] The plaintiffs oppose the transfer of the actions to the Commercial List on the grounds that they do not raise commercial issues and that no commercial relationship between the parties is in question. They say it is at heart a negligence action at common law.
[9] As to the first branch of the test for granting leave under Rule 62.02(4)(b) i.e., there is good reason to doubt the correctness of the order, the plaintiffs make the following argument.
[10] The Practice Direction that governs what matters may be on the Commercial List mandates an “in essence” test, namely, the matter must, in essence, involve a commercial statute or a commercial matter.
[11] The plaintiffs submit that it is not enough that the law suit merely involves defendants who are commercial entities or could impact commercial interests. They argue that what must be shown is that the core legal issues in question are commercial in nature. They submit the actions must be in pith and substance commercial.
[12] The Motions Judge concluded that the actions “clearly involve commercial issues”. The plaintiffs submit that the Motions Judge failed to apply the specific wording of the Practice Direction and in error applied an “involving” test rather than the more rigorous “in essence involving” or a pith and substance test.
[13] The plaintiffs argue that amounts to an error in law and in the exercise of discretion. Because of this failure to apply the correct test, the plaintiffs say there is good reason to doubt the correctness of the order.
[14] The Motions Judge found that the actions clearly involve commercial issues because the plaintiffs, in their Statement of Claim against the Directors, plead and rely on the statutory duties and obligations of Directors under the British Columbia Business Corporations Act, and in their claim against the TSX defendants there is reference to the duties and obligations that the Motions Judge stated are defined in part by the Securities Act, the TSE Company Manual and the TSX Recognition Orders of the OSC.
[15] Having regard to paragraphs 77, 92 and 109 of the proposed consolidated Statement of Claim, the plaintiffs in fact do rely on such commercial statutes as the Toronto Stock Exchange Act and the British Columbia Business Corporations Act, (similar to provisions in the OBCA) as being germane to the actions because they impose statutory legal duties of care on the defendants.
[16] By pleading these provisions, the plaintiffs themselves acknowledge that the actions have a commercial law component. Even if the plaintiffs’ intention is to plead and raise the statutory provisions merely to inform the common law duties of care that otherwise independently exist, an understanding and appreciation of these commercial statutes in the context of these proceedings would be helpful and these statutory provisions are part of the regular diet of the Commercial List.
[17] Moreover, the pleading raises the issue of the principle of corporate social responsibility governance frameworks when the company is engaged in mining operations in developing countries.
[18] Whether the degree of commercial issues amounts to being substantial or, “in essence” so as to be eligible for listing, is within the discretion of the Motions Judge. No hard and fast rules govern the assessment of sufficiency of the commercial nature of the action in question.
[19] As pointed by Cumming J. in Gyles v. My Travel Canada Holidays Inc. [2006] O.J. No. 2497 at para. 11, “Overall, the basket clause has been applied broadly and with flexibility”.
[20] Even consideration of a non-commercial factor may enter into the exercise of discretion in deciding what is to be listed under the basket clause. The Practice Direction states that the Motions Judge may take into account the current and expected case load of the commercial list.
[21] There is no disadvantage to a party in having the case listed on the Commercial List. In fact, procedures on the Commercial List allow for greater expediency. Moreover, the judges on the Commercial List not only have specialized knowledge about commercial issues but are part of the Superior Court of Justice and are generalists as well, quite capable of deciding issues of negligence and causation at common law.
[22] The Motions Judge was engaged in a discretionary case management exercise, that is, on which list of the Court should the actions proceed. He had regard to the wording of the Practice Direction and the pleading of the plaintiffs in deciding to exercise his discretion. In doing so, he did nothing contrary to any established judicial principles. I see no good reason to doubt the correctness of the way he exercised that discretion or the order itself.
[23] As to the second branch of Rule 62.02(4)(b), the Motions Judge used his discretion in applying the Practice Direction to the particular circumstances of the case before him. It was a fact specific exercise.
[24] The importance of the Motions Judge’s decision does not transcend the private interests of the parties. It raises no question of public importance for the administration of justice generally. It does not require any further judicial elucidation by the Divisional Court of the general principles underlying the Practice Direction. In this regard, it is instructive that counsel could point to no appellate decision reviewing a Practice Direction of any kind.
[25] As neither part of the test under Rule 62.02(4)(b) has been met, the motion is dismissed.
[26] I have endorsed the Record to read: “For oral reasons delivered, the motion is dismissed. Each group of the TSX defendants and the defendant directors will have their costs fixed at $1,500.00 all inclusive.”
LEDERMAN J.
Date of Reasons for Judgment: November 27, 2009
Date of Release: December 10, 2009
COURT FILE NO.: 464/09
DATE: 20091127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MARCIA LUZMILA RAMÍREZ PIEDRA, JAIME POLIVIO PÉREZ LUCERO and ISRAEL PÉREZ LUCERO
Plaintiffs/Moving Parties
- and -
TSX INC., TSX GROUP INC., WILLIAM STEARNS VAUGHAN and JOHN GAMMON
Defendants/Respondents
AND BETWEEN:
MARCIA LUZMILA RAMÍREZ PIEDRA, JAIME POLIVIO PÉREZ LUCERO and ISRAEL PÉREZ LUCERO
Plaintiffs/Moving Parties
- and –
COPPER MESA MINING CORPORATION, WILLIAM STEARNS VAUGHAN and JOHN GAMMON
Defendants/Respondents
AND BETWEEN:
MARCIA LUZMILA RAMÍREZ PIEDRA, JAIME POLIVIO PÉREZ LUCERO and ISRAEL PÉREZ LUCERO
Plaintiffs/Moving Parties
- and –
COPPER MESA MINING CORPORATION, TSX INC., TSX GROUP INC., WILLIAM STEARNS VAUGHAN and JOHN GAMMON
Defendants/Respondents
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: November 27, 2009
Date of Release: December 10, 2009