“ The TSX operates a stock exchange in Toronto and is incorporated by virtue of the Toronto Stock Exchange Act, R.S.O. 1990 ch. T-15 and related statutes. The claim in the action against TSX is that it owed duties to the Plaintiffs in connection with the actions of the Copper Mesa subsidiary in Ecuador as a result of Copper Mesa raising funds through a public offering.”
“continued Corporation” means The Toronto Stock Exchange as continued under the Business Corporations Act pursuant to Part II.1; (“Société maintenue”)
“Corporation” means The Toronto Stock Exchange; (“Société”)
Rights, liabilities, etc., preserved
(3)Upon the Corporation being continued under the Business Corporations Act,
(a) the continued Corporation possesses all the property, rights, privileges and franchises and is subject to all the liabilities, including civil, criminal and quasi-criminal, and all contracts, disabilities and debts of the Corporation;
(b) a conviction against, or ruling, order or judgment in favour of or against the Corporation may be enforced by or against the continued Corporation;
(c) the continued Corporation shall be deemed to be the party plaintiff or the party defendant, as the case may be, in any civil action commenced by or against the Corporation; and
(d) the continued Corporation is a recognized stock exchange under the Securities Act and is subject to that Act and to any terms and conditions imposed under subsection 13.0.1 (3). 1999, c. 9, s. 225. [emphasis added
“ Other than having its shares registered on the Toronto Stock Exchange (“TSX”), Copper Mesa does not appear to have any connection with Ontario. The Defendants Vaughan and Gammon are residents of Ontario who in 2006 and 2007 respectively became non-management directors of Copper Mesa.” [emphasis added]
It may be advisable for the plaintiffs to consider relying upon Justice Sharpe’s “forum of necessity” exception in Van Breda v. Village Resorts Limited to buttress any novel case arguments.
With respect to forum non conveniens, among the oft-cited factors, “loss of juridical advantage” will not trump any of the other factors if they tend to point towards Ecuador as the natural forum. However, if one considers Van Breda with a grain of salt (which the Supreme Court of Canada will likely do on March 21, 2011), it is arguable that a combination of “forum of necessity” (re: jurisdiction simpliciter) and “loss of juridical advantage” (re: forum non conveniens) may give the Ontario Court of Appeal a moment of pause when considering the order and fairness of assuming jurisdiction over these type of international human rights claims.