Law Times

Law Times • August 5, 2013 NEWS Trial outcome closely watched Continued from page 1 closely related to the complainants. "It is possible that, based on the foregoing, the defendants have brought themselves into proximity with the plaintiffs. The pleadings disclose a sufficient basis to suggest that a relationship of proximity between the plaintiffs and defendants exists, such that it would not be unjust or unfair to impose a duty of care on the defendants," the judge wrote. "Based on the foregoing, I find that it is not plain and obvious that no duty of care can be recognized." The fact that it's debatable whether the defendants should have a duty of care means the case deserves a trial, added Brown. "There are clearly competing policy considerations in recognizing a duty of care in the circumstances of this case. This alone would prevent it from being plain and obvious that this step of the Anns test will fail." But while the piercing of the corporate veil may be troubling for corporations, Gelowitz says it's still too early to say what the law on the matter is until the case goes to trial. "It's important to first bear in mind that this was a decision on a motion to strike as opposed to a trial decision. What's really significant about that is that the plaintiff gets to continue with the case unless it can be shown that the case is plainly and obviously not going to succeed," he says. University of Ottawa adjunct law professor Penny Collenette agrees there's hardly a grand conclusion that can be drawn on the law just yet. "We don't know yet the implications of this decision," she says. "But what it does do is articulate a concern that we've not really seen before in a Canadian judgment." If the case goes on to succeed, "this would mean quite a change" for Canadian companies, she says. "They'd have to do different risk assessments and their legal counsel would make new considerations," she adds. Still, Brown's decision is significant, according to Collenette. "If nothing else, it raises awareness for lawyers, for corporate counsel, and for boards of directors," she says. "It's something that's globally been of concern for many, many years. It's refreshing to see it being articulated by a justice." A successful prosecution in the Hudbay trial could also mean changes in how corporate and in-house counsel do their jobs, Collenette continues, noting it would suggest "an obligation to raise this human rights due diligence" with their clients. "This would raise another area in which lawyers would have to advise on which management and boards would have to take into consideration, especially in new projects," she says. "It's huge for new projects. This should not be looked at from just the prism of mining companies. I think all corporations that are operating overseas should take a hard look at their new projects and their supply chain management." There's no word yet on plans to appeal the Brown decision. If the case goes to trial and a decision is reached that imposes liability on shareholders, it would be "a cause for concern for any company that carries on internationally through subsidiaries," notes Gelowitz. "Mining companies or any company with international operations are going to want to pay attention to this case." But, of course, a cause for concern for some is a reason to celebrate for others. Brown's decision opens the gates for more corporate accountability and puts a halt to what Collenette calls "a frantic chase to avoid responsibility." "The outcome of the trial would be important," she says. LT Massiah denies allegations Continued from page 1 Another complaint accuses Massiah of changing his clothes in his chambers with his doors open. According to the allegations, when one complainant, C.C., "was delivering documents to you, you told her to come in when you were not fully dressed. On at least one occasion, you were bare-chested." Massiah's counsel, Ernest Guiste, tells Law Times his client denies the allegations. The justice of the peace is also moving to dismiss the complaints, arguing the way the Justices of the Peace Review Council received them constitutes an abuse of process. The grievances should have reached the council in a letter and not through a recorded phone call with the prosecuting counsel, Guiste's factum states. "It is respectfully submitted that the evidentiary record reveals that there were in fact no written complaints brought to the review council by anyone. The alleged complaints were brought to the attention of the review council contrary to the manner prescribed by the Justices of the Peace Act." The Association of Justices of the Peace of Ontario, which has been granted intervener status, agrees that complaints must be written. Since there has already been a disposition on a similar set of allegations, Massiah also argues it's not appropriate to deal with the new complaints. The complaints "in fact mirror the nature and quality of complaints which were addressed therein thereby calling into question the bona fides of this prosecution by the office of the attorney general for Ontario," Massiah's factum reads. The presenting counsel in the case disagrees. "The applicant has failed to demonstrate any abuse of process. There is no legal principle that supports the theory that proceeding with complaints that predate the disposition of the applicant's prior proceedings can constitute an abuse of process," wrote Marie Henein. "Moreover, the applicant was aware during the prior proceeding, that the allegations contained in the new complaint had emerged. He did not seek an adjournment or any other remedy at that time." The hearing has been postponed to November. At that time, Massiah's counsel will seek a publication ban. "I am seeking a publication ban to protect both the administration of justice and my client," says Guiste. "In my view, the failure to follow the law and the nature of the allegations make them scandalous as that term is used in our pleadings jurisprudence." At the time of the earlier hearing, Massiah said he could only explain the complaints against him as a misinterpretation of his casual communication style with staff. "At best, it's a misinterpretation of my actions. They constructed this image of me and who I am and basically chose to continue to interact with me in this way," Massiah told a hearing panel of the Justices of the Peace Review Council. "My manner is to extend a greeting, be kind, and pleasant. I never will engage in touching without consent." LT www.lawtimesnews.com Page 5

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