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PROCEEDINGS - Appeals and judicial review - Practice and procedure - Evidence

Monday, February 27, 2017 @ 8:57 AM  


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Appeal by the plaintiffs from an order staying their action on the basis of forum non conveniens. In 2013, private security personnel employed at a Canadian-owned mine in Guatemala allegedly shot and injured several protestors. Seven plaintiffs commenced an action against the owner of the mine in British Columbia, alleging the defendant expressly or implicitly authorized the use of excessive force by security personnel, or was negligent in failing to prevent the use of excessive force. The plaintiff sought damages, including punitive damages, for negligence, and for direct and vicarious liability for battery. The defendant submitted the Court should decline jurisdiction on the basis Guatemala was the more appropriate forum. The application judge concluded that Guatemala was the more appropriate forum, and rejected the plaintiffs' assertion that corruption in the Guatemalan legal system would prevent a fair trial. The judge granted a stay of the British Columbia action. The plaintiffs appealed. They sought to introduce new evidence regarding the criminal proceedings in Guatemala related to the shooting, with further information regarding the Guatemalan legal system.

HELD: Appeal allowed. The new evidence regarding the Guatemalan legal system was available at the time of the hearing and was therefore inadmissible. The new evidence regarding recent developments in the Guatemalan criminal proceeding was relevant to the outcome and admissible. The new evidence cast serious doubt on the plaintiff's ability to advance a claim for compensation through the criminal proceeding due to its indefinite adjournment following the flight of the key defendant from Guatemala to a non-extradition country. In addition, the application judge erred in finding that the availability of a standalone civil action established Guatemala as the more appropriate forum. The judge failed to give adequate consideration to impediments with respect to the civil discovery process in Guatemala, the impact of the expiration of the applicable limitation period, and the measurable risk of unfairness in the Guatemalan judicial system given the specific context of the parties' dispute. The defendant's application for a stay of the British Columbia proceeding was dismissed.

Garcia v. Tahoe Resources Inc., [2017] B.C.J. No. 117, British Columbia Court of Appeal, H. Groberman, N.J. Garson and G. Dickson JJ.A., January 26, 2017. Digest No. 3640-002