Post by
MTStack on Dec 07, 2022 1:45pm
Excerpts from the Verdict
I found the following statements of the BC Court of Appeals Verdict to be especially interesting. [Numbers indicate the paragraph within the verdict. Underlining mine.]
. HELD: Appeal dismissed. The panel’s liability and sanctions decisions were procedurally fair. The panel did not err: with respect to admitting and assessing expert evidence; by scrutinizing the parties’ evidence unevenly; by refusing to grant the appellants an adjournment; by failing to assist the appellants as self-represented parties; in assessing and imposing sanctions; or by failing to give sufficient reasons.
[12] ] By 2015, Mountainstar had paid Mr. Lopehandia USD 4.6 million under the option agreement. As Mountainstar had no meaningful revenue, Mountainstar raised these funds through investors. Unfortunately, on the evidence adduced at the hearing, the option agreement proved to be worthless.
[13] According to the evidence of the Executive Director’s expert witness, Mr. Ossa, in 2011, Mr. Lopehandia had simply filed petitions (applications) with the Chilean courts to acquire mining concessions but his petitions were successfully opposed by pre-existing rights-holders or cancelled between 2012 and 2014. In other words, Mr. Lopehandia never actually acquired any mineral exploration or exploitation rights to the areas in issue.
[16] Despite having ample opportunity to do so, Mountainstar and Mr. Johnson did not produce any objective evidence at the hearing before the panel to counter Mr. Ossa’s evidence. Nor did they seek to introduce such evidence on appeal. They did not give a satisfactory explanation for this obvious shortcoming in their case.
[46] Furthermore, the panel noted that in an interview with Commission staff Mr. Johnson had acknowledged he had been aware the Villar proceedings had been dismissed in full when Mountainstar made the MD&As in issue. He had described the proceedings as “not determinable” because Mountainstar and Mr. Johnson believed the outcome was “completely wrong”. In other words, regardless of any advice by the Chilean lawyer, Mr. Johnson knew Mountainstar’s statements about the Villar proceedings were false or misleading.
As to Mr. Ossa:
The panel did not make a palpable and overriding error in assessing Mr. Ossa’s qualifications or by relying on his evidence.
[61] Mr. Ossa’s evidence consisted of his May 31, 2017 affidavit and his hearing testimony. Although Mr. Ossa was qualified as an expert in Chilean law, I agree with the Executive Director that he gave primarily factual evidence. In particular, he accessed, reviewed and described relevant and publicly available decisions of various courts in Chile. He did not need personal knowledge of these decisions to describe their outcomes to the panel any more than counsel for Mountainstar and Mr. Johnson needed personal knowledge of the many authorities he cited to this Court in argument. Mr. Ossa attached copies of the relevant decisions to his affidavit. The Executive Director provided certified translations of these decisions to the panel.
[62] Mr. Ossa also described the process of obtaining a mining concession in Chile and testified that Mr. Lopehandia had only ever applied for, but was never issued any, mining concessions. Again, Mr. Ossa did not need personal knowledge to testify about these topics.
[63] Mr. Ossa was eminently qualified to provide this factual and opinion evidence. He has law degrees from a university in Chile as well as Oxford, lectures abroad at prestigious law schools, has extensive litigation experience in Chile (including cases relating to mining law issues), is a senior partner at a leading Chilean law firm and has been qualified to provide expert evidence on Chilean law in a number of countries, including the United States, the United Kingdom, Israel and Canada. Mr. Ossa testified that he was aware of his duty not to act as an advocate for any party. Mountainstar and Mr. Johnson did not adduce any evidence to establish that Mr. Ossa had a conflict of interest.
[64] Section 173 of the Act empowered the panel to “receive relevant evidence submitted by any person” and the panel was “not bound by the rules of evidence.” Without question, Mr. Ossa provided highly relevant factual and opinion evidence and it was open to the panel to receive and accept it.
[65] On my review of the record, I can discern no unfairness in the panel’s treatment of Mr. Ossa’s evidence.
On JL's testimony:
[74] As noted by Mountainstar and Mr. Johnson, the panel gave two reasons for rejecting Mr. Lopehandia’s evidence — his personal interest in the outcome and his lack of expertise in Chilean law. The record provides ample support for these findings.
[75] Mr. Lopehandia’s interest in the outcome is obvious. He has been paid handsomely under the terms of the option agreement for a mining interest that, on the evidence, does not exist. It was clearly in his interest to continue promoting the idea that he has title to valuable mining interests to: (1) insulate himself from liability associated with promoting a fallacy; and (2) perhaps receive further payments. While having an interest in the outcome of the hearing did not disqualify Mr. Lopehandia from testifying, it was certainly a factor for the panel to consider in assessing his evidence. It was for the panel to decide whether his evidence was “sufficiently objective to be relied upon”: The Owners, Strata Plan NES 97 v. Timberline Developments Ltd., 2011 BCCA 421 at para. 48.
[76] In terms of expertise, Mr. Lopehandia has experience in the mining industry but is not a lawyer. His formal training in Chilean mining law dates back to 1972 when he graduated as a mining technician.
[77] Despite Mr. Lopehandia’s purported expertise, his various assertions about the state of affairs were not supported by objective evidence. For example, he did not produce documentary evidence of his asserted mining rights over the Amarillo Claims or the Supreme Court of Chile decision he maintains was decided in his favour.
Comment by
slugman on Dec 07, 2022 3:42pm
This post has been removed in accordance with Community Policy
Comment by
slugman on Dec 07, 2022 4:24pm
AURWAR, Read Braelorne's post on ihub. Tells you who GINNY the GUZZLER is and what he stands for.....ONLY HIMSELF & DIARRHEA. He couldn't give a damn about you or any MSX shareholder. To him the MSX Shareholders are suckers to be taken..AGAIN & AGAIN & AGAIN..AD FINITUM!! LOPEY THE DOPE has NEVER OWNED one square inch of Mina Pascua DOES NOT NOW and NEVER.EVER WILL! A FACT!!