TVX Appeal Dismissed

On June 1, 2000, the Court of Appeal for Ontario dismissed TVX Gold Inc.’s appeal of the trial judgment of Feldman J. (as she was then), which granted Alpha Group a 12 per cent ownership interest in the Kassandra Mines and the right to acquire an additional 12 per cent ownership interest, upon payment of applicable costs (which was reported on in the March issue of Lexpert).

TVX also brought a motion to admit fresh evidence on the appeal. The TVX fresh evidence motion also was dismissed. The Alpha Group cross-appeal seeking a constructive trust over 100 per cent of the Kassandra Mines also was dismissed. As a result, the trial judgment of Feldman J. was upheld. The Kassandra Mines have been valued at US$800 million.

At the trial, Feldman J. held that TVX was liable to Alpha Group for breach of contract, breach of confidence and breach of fiduciary duty. The Court of Appeal overturned Feldman J.’s finding that TVX owed Alpha Group a fiduciary duty which survived the termination of the joint venture agreement between TVX and Alpha. However, the Court of Appeal affirmed Feldman J.’s findings against TVX on Alpha Group’s claims for breach of contract and breach of confidence.

Before the appeal was heard, a non-party to the action and appeal, 1235866 Ontario Inc., brought a motion to set aside the trial judgment. 1235866, a successor to Curragh Inc., has commenced a separate action against Alpha Group claiming Alpha Group’s interest in the Kassandra Mines. The 1235866 motion sought an order setting aside the trial judgment in the Alpha Group-TVX action and ordering a new trial. The Court of Appeal dismissed the 1235866 motion.

The Alpha Group was represented before the Court of Appeal by Alan Lenczner, Q.C. and Lawrence Thacker of Lenczner Slaght Royce Smith Griffin. TVX Gold Inc. was represented by Peter Roy, Kathryn Knight, Maureen Helt and Anne McConville of Fasken Martineau DuMoulin LLP in Toronto and Timothy Pinos of Cassels Brock & Blackwell LLP. 1235866 Ontario Inc. was represented by Brian Morgan and Fred Myers of Osler, Hoskin & Harcourt LLP.