Description

These legal case assignments are to get you used to thinking and writing legally. Questions with a legal analysis require a statement of the legal test followed by application of the facts to what the question is answer (considering arguments for and against your side) followed by a conclusion.

Questions without a legal analysis require a full and thorough explanation. Make sure you explain why. The PowerPoints are meant to guide and assist you. It may be necessary to read or skim through the actual case on Canlii. The link can be found on the course outline or on the PowerPoint.

Submissions must not exceed 2 pages, tables, bullet points, and paragraphs may be used to organize your response.

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Facts

The Plaintiffs are natives of Ecuador who have opposed the mining, exploration and development proposed by a company in Ecuador that is a subsidiary of Copper Mesa Mining Company.

Copper Mesa is incorporated in British Columbia that does business through various subsidiaries, including one in the Bahamas, which in turn owns the Ecuadorian subsidiary responsible for exploration and development in that country.

That than having its shares registered on the Toronto Stock Exchange (TSX), Cooper Mesa does not appear to have any connection with Ontario.

The two Defendant Directors are residents of Ontario and are non-managing directors.

The claim in this action is made against the two directors and the TSX.

Cooper Mesa was not named as a Defendant.

The TSX operates a stock exchange in Toronto.

The claim in the against the TSX is that it owed a duty to the Plaintiffs in connection with the actions of the Copper Mesa subsidiary in Ecuador as a result of Cooper Mesa raising funds through a public offering.

The claims do not allege that the Directors authorized or directed the Security Forces, agents, employees or affiliates to commit the assaults or threats, nor that they supervised them.

Cooper Mesa is traded on the TSX.

Issues

Was there a duty of care owed by the TSX or the Directors?

If so, was that duty breached?

Analysis

The Plaintiff's claim that they were assaulted or threatened by Ecuador by the Security forces or agents, employees, or affiliates of the Company or its subsidiaries.

The Plaintiffs assert that the TSX is under a legal duty to take reasonable care to avoid conduct that entails an unreasonable risk of harm to others. The Plaintiff's claim that Cooper Mesa being listed on the TSX was the necessary precondition which triggered an enabled the harms inflicted on the Plaintiff's.

The TSX is said to have known that Copper Mesa depended on the financing provided through the TSX for continued operations and knew that serious allegations of violence, threats and human rights abuse had been made against Copper Mesa and the TSX itself had been specifically warned of the serious risk of future violence if the TSX provided Copper Mesa with access to capital.

But for the TSX's act of listing Copper Mesa, it is said, the Plaintiffs would not have been subjected to these threats and assaults.

Claim against TSX:

The duty of the TSX is not to list a corporation when there is such reasonably foreseeable and serious risk that funds raised on the Exchange will be used in such a way as to harm individuals such as the Plaintiff's

OR

Not to list a corporation on the Exchange without instituting precautionary measures to prevent a serious risk that funds raised through the Exchange will be used to harm individuals such as the Plaintiff.

The Plaintiff's assert that the directors had knowledge of the risk of harm to the Plaintiff's prior to the assaults and threats that are at issue.

The pleadings state the director knew or should have known of past violent confrontations that occurred prior to his directorship that were perpetrated by individuals under Copper Mesa's control.

The director is said to have had access to, and would have reviewed corporate documents that discuss allegations of violence committed on behalf of Copper Mesa.

The directors approved corporate practices intended to eliminate wide spread opposition to the proposed project, including practices related to security forces; approved funding to security forces and other individuals under Copper Mesa's control who had in the past were likely in the future to assault and threaten members of the community opposed to the project; failed to institute proper corporate policies and practices so as to prevent threats and assaults from being committed by individuals under Copper Mesa's control; and failed to raise concerns about and investigate reported past incidents of violence committed by individuals under Copper Mesa's control.

A community member from the Ecuador project area met with the directors to make sure they were aware of the violence

Do the Defendants owe a duty of care?

Step 1. has the duty of care asserted by the plaintiffs already been recognized by the law?

If yes a duty of care has been established

If no, the Cooper-Anns test is used to determine if there is a duty of care.

In novel situations the courts apply the Cooper-Anns test:

1. whether the relationship between the parties justifies the imposition of a duty of care on the defendant, involves consideration of foreseeability, proximity, and policy.

For a duty of care to arise more than foreseeability is required

The two parties must also be sufficiently proximate to one another

Two parties are in proximity with one another if their relationship is sufficiently close and direct that it is fair to require the defendant to be mindful of the legitimate interests of the plaintiff

Not a single unifying characteristic

Basic proposition is that everyone must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour

2. whether there are any policy reasons for not imposing a duty of care?

The Court cited Syl Apps Secure Treatment Center saying "to determine whether there is a prima facie duty of care, we examine the factors of reasonable foreseeability and proximity. If this examination leads to the prima facie conclusion that there should be a duty of care imposed on this particular relationship, it remains to determine whether there are nonetheless additional policy reasons for not imposing the duty."

"the basic proposition underlying 'reasonable foreseeability' is that everyone 'must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour'"

"the question is whether the person harmed was 'so closely and directly affected by my act that I ought reasonably to have in contemplation as being so affected'"

"there must also be a relationship of sufficient proximity between the plaintiff and defendant"

The TSX did not fall under any previously recognized duty of care.

The TSX denied that there was any foreseeability in the harm, and they did not owe a duty of care

The TSX believes that Plaintiff's cannot demonstrate that they were so closely and directly affected by the pleaded acts of the TSX that they ought to reasonably have had them in mind as being so affected.

Conclusion

There is no relationship between the parties, besides being listed on the stock exchange, and therefore the court agreed that there was no duty of care owed.

The Plaintiffs did not participate in the Canadian capital markets and are not investors or shareholders in Copper Mesa.

Questions

Define and explain Prima Facie.

This claim was not brought against Copper Mesa the corporation. If the Plaintiffs had made a claim against Copper Mesa use the facts and the Cooper-Anns test to determine whether the Court could have found a duty owed?

Regardless of whether you find there is a duty of care owed in the previous question, apply the rest of the negligence legal test to the facts.