In Visagie et al. v. TVX Gold, Inc., reported in the October issue of Lexpert, three individual plaintiffs known as the “Alpha Group” succeeded in obtaining an award of a proprietary interest in Greek mining properties owned by TVX Gold, Inc. (TVX), based upon alleged breaches of confidence and fiduciary duty by TVX. In her Reasons, Justice Feldman noted that the plaintiffs themselves appeared to have made use of confidential information and proprietary documents belonging to Curragh Inc. without authority to do so. She held that this did not deprive the plaintiffs of standing to pursue TVX. However, the trial judge did recite the confirmation of counsel for the plaintiffs that “...if Curragh wished to make a claim against either party for use of its confidential information, it could seek to do so.”

1235866 Ontario Inc. (1235866), a successor to Curragh Inc., has taken up counsel’s invitation. Represented by Osler, Hoskin & Harcourt LLP’s Brian G. Morgan, Frederick Myers, Edward Sellers and Andrew M. Diamond, 1235866 has delivered a Statement of Claim against all of the parties to the original lawsuit and others seeking, orders among other relief, that the two 12 per cent interests in the original case are held in trust for 1235866 due to the breaches of contract, fiduciary duties and confidence committed by the original plaintiffs.

In addition, 1235866 has moved before the Ontario Court of Appeal to seek to set aside the judgment of Justice Feldman and to require a new, consolidated trial of both actions on the basis that 1235866 or its predecessor Curragh Inc. were necessary parties at the original trial whose presence was necessary to enable Justice Feldman to adjudicate on the issues. Furthermore, on December 27, 1999, 1235866 was successful in fending off a challenge to its right to proceed against Alpha and TVX as Curragh’s successor. The challenge was brought by creditors of Anvil Range Mining Corporation. Anvil Range purchased Curragh’s Faro Mine in the Yukon Territory from Curragh’s Interim Receiver. Anvil Range has itself been placed in receivership. Certain creditors of Anvil Range sought to challenge the Interim Receiver’s view that 1235866 and not Anvil Range had become vested with Curragh’s rights to pursue Alpha and TVX. Fred Myers appeared before Mr. Justice Farley to argue the matter on behalf of 1235866. In his finding in favour of 1235866, Mr. Justice Farley labelled the Anvil creditors’ attack a “flight in fantasy” and confirmed that the rights of Curragh to sue TVX and Alpha were indeed vested in 1235866.

TVX is being represented by a team led by Peter Roy of Fasken Martineau DuMoulin LLP, which includes J. D. Timothy Pinos of Cassels, Brock & Blackwell LLP, and Kathryn L. Knight and Maureen Helt, both of Faskens. Alan J. Lenczner, Q.C., and Lawrence E. Thacker of Lenczner Slaght Royce Smith Griffin are representing the Alpha Group.