Lexpert Special Editions

34 | Big Suits In Angelica Choc v. Hudbay Minerals Inc, the plaintiff alleges that her husband, Adolfo Ich, a respected indigenous community leader and critic of mining practices, was hacked with machetes and fatally shot in the head by security personnel. In German Chub Choc v. Hudbay Minerals Inc, the plaintiff alleges that he was shot and paralyzed by the head of the mine company security personnel in an unprovoked attack in the same series of events that led to the death of Adolfo Ich. The primary claims against Hudbay Minerals in all three cases are based on the tort of negligence. The defendants brought motions to strike out the claims, asserting that no proper cause of action had been pleaded. In particular, the defendants argued that the claims were an improper attempt to pierce the corporate veil that was akin to imposing absolute liability on a parent corporation for the operations of its subsidiaries in foreign countries. The defendants argued that there is no recognized duty of care owed by a parent or grandparent corporation to ensure that commercial activities carried on by its subsidiary in a foreign country are conducted in a manner designed to protect those people with whom the subsidiary interacts.  Further, the defendants argued, the requisite elements of foreseeability and proximity required to recognize a new duty of care are not present in this case, and that, in any event, policy considerations militate against recognizing any such duty. Justice Carole Brown dismissed the defendants' motions to strike, and permitted the claims to proceed to trial. The Court rejected the idea that the claims were an improper attempt to hold Hudbay responsible for the torts of others (namely the security personnel or the subsidiary), and instead agreed with the Plaintiffs that the primary allegation was that Hudbay itself was directly negligent for failing to prevent the harms that were committed by the subsidiary's security personnel. The court accepted that it is possible that a Canadian parent corporation could be directly liable in negligence for its own actions and omissions in another country.  Applying the Anns test, the court found that it was possible, based on the pleadings, that Hudbay had brought itself into a relationship of sufficient proximity to the plaintiffs to justify imposing liability. The court found that a secondary claim could proceed because a relationship of agency between the parent and the subsidiary sufficient to pierce the corporate veil was properly pleaded. The defendants did not appeal Justice Brown's ruling.  Angelica Choc v. Hudbay is the first time that a claim against a Canadian mining company over human rights abuse abroad has been permitted to go to trial in Canada. Angelica Choc, German Chub, Margarita Caal Caal, Rosa Elbira Coc Ich, Olivia Asig Xol, Amalía Cac Tiul, Lucia Caal Chún, Luisa Caal Chún, Carmelina Caal Ical, Irma Yolanda Choc Cac, Elvira Choc Chub, Elena Choc Quib, and Irma Yolanda Choc Quib were represented by Murray Klippenstein and Cory Wanless of Klippensteins Barristers & Solicitors. Hudbay Minerals, HMI Nickel and Compañía Guatemalteca de Níquel were represented by Robert Harrison, Tracy Pratt and Christopher Rae of Fasken Martineau DuMoulin LLP. Amnesty International Canada was granted intervenor status and was represented by Paul Champ of Champ & Associates and Penelope Simons of the University of Ottawa. Commissioner of Competition v. Visa/MasterCard Decision date: July 23, 2013 The Competition Tribunal dismissed the case brought by the Commissioner of Competition against Visa's and MasterCard's honour-all-cards and no-surcharge rules and MasterCard's nodiscrimination rule.  This was the first time the Competition Tribunal considered the amended price maintenance provision LEXPERT®Ranked Lawyers Scott, QC, David W. Borden Ladner Gervais LLP Shaughnessy, Andrew M. Slaght, QC, Ronald G. Torys LLP Lenczner Slaght Royce Smith Griffin LLP (613) 787-3525 dscott@blg.com (416) 865-8171 ashaughnessy@torys.com ACTL's first Canadian President. University of Ottawa and LSUC Honorary degrees. Advocates' Society and Law Society Medals recipient. Order of Canada officer. Lexpert Lifetime Achievement Award: Pro Bono/ Lexpert Zenith Award: Celebrating Leadership. Partner in Torys' Litigation Practice. Mr. Shaughnessy's practice focuses on intellectual property litigation, with current emphasis on complex patent (especially pharmaceutical) litigation and Federal Court practice. (416) 865-2929 rslaght@litigate.com In addition to a formidable reputation in commercial and securities litigation, Mr. Slaght has built an eclectic practice based on his experience in administrative law, real property, intellectual property and class actions. Smith, Glenn Spiro, David E. Stainsby, Jonathan Lenczner Slaght Royce Smith Griffin LLP Dentons Canada LLP Heenan Blaikie LLP (416) 863-4761 david.spiro@dentons.com (416) 360-3568 jstainsby@heenan.ca Mr. Spiro guides domestic and foreign business enterprises through income and commodity tax audits as well as the objection and appeal process. He also deals with voluntary disclosures, requests for taxpayer relief and judicial review applications. Mr. Stainsby, a litigator who heads Heenan Blaikie's IP litigation practice, acts in complex patent, trademark and copyright matters in a variety of industries and technical fields before the Ontario and Federal Courts and Supreme Court of Canada. (416) 865-2927 gsmith@litigate.com Mr. Smith has a diverse commercial litigation practice with an emphasis on class actions and complex insurance litigation. He has a special interest in product liability and cases involving insurance coverage of corporate directors and officers.

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