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August 5, 2013

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DEVELOPMENT CHARGES GROIA'S APPEAL Factum pulls no punches Follow LAW TIMES on www.twitter.com/lawtimes $4.00 • Vol. 24, No. 25 P4 Advising buyers key for real estate lawyers FOCUS ON P7 P9 Corporate/Commercial Law L aw TIMes NO COST STORAGE Ask Us How. e: ssoil@docudavit.com www.docudavit.com CO V E R I N G O N TA R I O ' S L E G A L S C E N E • W W W. L AW T I M E S N E W S . CO M August 5, 2013 ntitled-2 1 13-05-22 10:16 A Hudbay plaintiffs succeed on 'very low bar' Lawyer cautious about implications for corporate duty of care BY YAMRI TADDESE Law Times T he Guatemalan workers alleging rape and murder on a property owned by the subsidiary of a Canadian mining company have only had to prove one thing so far: that their case against Hudbay Minerals Inc. wouldn't plainly and obviously fail if it proceeds to trial. "It's a very low bar for a plaintiff to win a motion," says Mark Gelowitz, a corporate and securities litigation lawyer with Osler Hoskin & Harcourt LLP. "They don't prove anything. They don't even try to prove anything. There's no evidence that's admissible on that motion. It's dealt with purely on the basis of the pleadings and judicial assumption," he says. So when Superior Court Justice Carole Brown ordered the case to proceed, it shouldn't necessarily have come as a surprise to some people. But for a key reason, it did. Part of the surprise stems from the fact that Brown's decision means the case will proceed to trial in Ontario. But according to Gelowitz, the jurisdiction matter was specific to this case and will likely not set a strong precedent. For the corporate world, perhaps the more ominous part of Brown's decision is where she sets out a test for a novel duty of care to the plaintiffs. "It really is a fundamental part of corporate law that a shareholder is not liable for the legal wrongs of the company whether that shareholder is an individual person or another corporation," says Gelowitz. "From that perspective, the recognition that the sort of duty that was described in this case might be found against 'Mining companies or any company with international operations are going to want to pay attention to this case,' says Mark Gelowitz. a shareholder is a troubling development from a corporate law perspective." Brown found that the plaintiffs had a triable case when it came to the duty of care. One of the tests for a duty of care Photo: Laura Pedersen — proximity — could be met in this case, the judge found, after going through a list of communications and actions by the company that suggested they could have been See Trial, page 5 JP facing fresh sexual harassment allegations Law Times A n Ontario justice of the peace is facing a fresh set of sexual harassment allegations after five more female court staff members, including a provincial prosecutor and another justice of the peace, complained about inappropriate behaviour by the judicial officer. Justice of the peace Errol Massiah was found guilty of professional misconduct in April 2012 after half a dozen court staff accused him of making sexually suggestive comments, eyeing staff members up and down, and, in one case, slapping someone's buttocks. While those proceedings were ongoing, five staff members at the Whitby, Ont., courthouse phoned the prosecuting counsel to lodge more sexual harassment complaints after reading media coverage about how Massiah said his before the Justices of the Peace Review Council, Massiah was reprimanded and suspended for 10 days. He was also ordered to write letters of apology to the parties involved and take training in "judicial educa- With your eyes, you also looked her up and down in a manner that conveyed sexual connotations. This caused Ms. H to feel very uncomfortable and vulnerable. "friendly" remarks were misunderstood by the women, according to the prosecution's factum. The new complaints are alleged to have occurred between May 2007 and August 2010. In the first set of complaints tion or counselling in gender sensitivity and professional boundaries." According to documents filed with the council, by the time the Whitby courthouse staff contacted prosecuting counsel Douglas Hunt, he felt it was too late to add the new complaints to the ongoing matter. In the new notice of application issued in July, Massiah is accused of "leering and/or ogling at female staff," giving an "undressing look," and inviting them into his chamber without being fully dressed. One of the complaints says that in the summer of 2010, H.H., a provincial prosecutor, "was coming in from the parking garage to the courthouse. As she was walking past you, you said, 'Mrs. H, looking goooood' in a manner that conveyed sexual undertones. "With your eyes, you also looked her up and down in a manner that conveyed sexual connotations. This caused Ms. H to feel very uncomfortable and vulnerable." PM #40762529 BY YAMRI TADDESE See Massiah, page 5 ONTARIO LAWYER'S PHONE BOOK 2013 YOUR MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS More detail and a wider scope of legal contact information for Ontario than any other source: 26,000 lawyers 9,000 law firms and corporate offices OLPB_LT_Feb11_13.indd 1 Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation 13-02-06 12:58 PM

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