MountainWest Resources Inc. C.MWR

Recap of Evidence in C 29407-2016 (Libel)

[MTStack]

Aldo Molinari Valdes and Gonzalo Nieto Valdes, attorneys, in representation of Compania Minera Nevada SpA., … C 29407-2016, to this Court we respectfully state:
 
We request the Court to bear in mind the following considerations in relation to the evidence provided and, on the merits thereof, to reject in all its parts the claim filed by Mr. Jorge Rodrigo Lopehandia Cortes against Compania Minera Nevada, with express condemnation of costs, since none of the allegations of the action have been established.
 
For your consideration, we hereby present to this Court that this document shall be developed according to the following index:
 
[Table of contents]
 

1. GENERAL CONCLUSIONS

 
As this Court will be able to verify, the evidence rendered in the case permits us to arrive at the following general conclusions without any doubt:
 

1. Although the Court could ascertain from a single reading of the pleadings submitted in these records that Mr. Lopehandia has filed a manifestly reckless, instrumental, confusing and simply unfounded claim, the lack of evidence given by the plaintiff in order to substantiate his claims has only confirmed the initial suspicion, and exposed his true intention in the exercise of this action.
2. In fact, the only and scant evidence that was rendered by the opposing party had a very different purpose from proving the elements of extra-contractual liability that was claimed, since nothings submitted about the participation that – supposedly – our client would have had in the preparation of the publication, or the injurious nature of it, nor – and what is deeply striking in the face of a multi-million dollar claim such as in this case – the hefty damages that it claims, much less the causal relationship that these have with the alleged illicit act.  Indeed, Your Honor, the opposing party did not provide a single precedent to prove the damage of more than 3 billion pesos that he demands.
3. On the contrary, the plaintiff focused his evidentiary activity exclusively on the dispute over the property of Pascua Lama Chile, submitting certificates of ownership of mining properties whose ownership is not being disputed in this case, and a history of previous lawsuits that have been already completed – unfavorably for Mr. Lopehandia – between the parties about that matter.  Thus, there is no doubt that the scant evidence provided by the opposing party bears absolutely no relation to what is at issue in this trial or to the substantive, relevant and controversial facts established by this Court.
4. Thus, in forgetting that the plaintiff filed an action for extra-contractual liability, this Court will find that it was not possible for the opposing party to prove: (i) the illicit or injurious nature of the communication in question; (ii) the participation, much less the culpability that existed in the publication by our client; (iii) the existence of the material and moral damages that he claims, nor (iv) much less that these are a necessary and direct consequence of the communication made by Barrick Gold Corporation.
5. On the contrary, this party through its evidentiary activity managed not only to discredit the elements of extra-contractual liability claimed by the plaintiff, but also managed to prove the factual assumptions that support the exceptions and defenses that our client filed in answer to the lawsuit.
6. In fact, it has become clear that this Court lacks the competence and jurisdiction considering that the publication in question was made by Barrick Gold Corporation, a Canadian company, through its website, whose domain is located abroad, there is no connecting factor that allows attribution of jurisdiction to this Court.
7. Taking the foregoing into consideration and the fact that the relationship that our client has with Barrick is only that of belonging to the same economic conglomerate, without CMN having any type of representation of that Company, nor having any ownership or shareholding by our client, much less holding some kind of control over the parent company, have proven the factual  assumptions that account for the lack of passive standing of CMN and its total absence of participation in the – alleged – commission of the illicit act.
8. For its part, it has been possible to establish that the conditions of the limitation period of the action sought by Mr. Lopehandia have been met, since it has been established that the certain date of the publication was December 21, 2011, it can be seen that the lawsuit was filed more than 4 years after the communication, and was notified 6 years after it.
9. Finally, from a single reading of the content of the publication, and the lack of evidentiary activity by the opposing party, it can be found that in no case can it be described as insulting, since it does not contain phrases that are false, much less that have the exclusive purpose of affecting the honor of the plaintiff.  On the contrary, it is a descriptive communication that was made in the legitimate exercise of the right to opinion and information, and that refers to facts that are in the public domain, and can not in any case be qualified as an illicit act that enables the lawsuit for extra-contractual liability.

 

2. THE EVIDENCE AND ITS SPECIFIC FINDINGS CONCERNING THE ABSOLUTE INADMISSIBILITY OF THE LAWSUIT

 

1. EVIDENCE POINT 1: “ENTITY THAT MADE THE PUBLICATION, DATE AND CONTENT OF IT.”

 

1. As will be seen below, (i) it has been established in the records that the entity that made the publication was Barrick Gold Corporation, a Canadian company that issued the communication on its own website; likewise, (ii) it has been proven that the date of the publication is December 21, 2011, and the action filed is prescribed.  Last, (iii) the precise content of the publication has been proven, which relates facts in a descriptive manner and in no way constitutes the alleged injury that the plaintiff claims.

 
 

1. It has been established in the records that the entity that made the publication was Barrick Gold Corporation, a Canadian company that issued the communication on its own website with a foreign domain.

 

2. It has been proven in the record that the company that published the communication that the plaintiff seeks – falsely – to classify as insulting to him was made entirely by Barrick Gold Corporation, a company established in Canada, on its own website, which in turn has a foreign domain.
3. Indeed, through the acts of diligence dated August 17, 2018 and May 16, 2022, signed by the Notary Public of the 48^th Notary of Santiago, Mr. Roberto Cifuentes Allel, who certified that the publication imputed to our client is available on the website https://www.barrick.com, specifically in the news section of 2011 of this page, in the link https://www.barrick.com/news/news-details/2011/False-and-Misleading-Press-Release-Issued-by-Mountain-West-Resources-Inc/default.aspx
4. On the other hand, it was exhaustively confirmed that the aforementioned website has a domain abroad, through 4 acts of diligence, all dated November 25, 2019, signed by the Notary Public of the 48th Notary of Santiago, Mr. Roberto Cifuentes Allel, who certified that the Host Advice web pages, Ishosetdby, Check-Host and Whois Domain Tools, which indicate the location of a website's IP, locating abroad the publication imputed to our client.
5. All these certifications, Your Honor, were not objected to by the opposing party within the legal deadline, producing full evidence in these records as to the entity that published the communication, and the location of the IP of the website on which it was made.  Moreover, the opposing party did not provide any evidence calling into question the factual circumstances amply established by this party.
6. Moreover, the plaintiff himself has expressly acknowledged Barrick Gold Corporation as the author of the publication in question, noting that the website of the communication “is clearly noted as owned by the Barrick conglomerate.
7. Thus, it follows from the facts established – in respect of which the plaintiff did not provide any evidence to the contrary or object to any of the documents indicated – and from the simple reading of the lawsuit, it is clear that two of the exceptions filed by this party are absolutely admissible.
8. In the first place, the lack of jurisdiction of this Court to hear this action, since both the alleged illicit act – the publication – and the parties involved in it, are located abroad, there being no connecting factor or other background that allows attributing knowledge of the matter to the national courts, those who lack the competence and jurisdiction to resolve a conflict that originates and has consequences outside the national territory, which is sufficient reason to dismiss the lawsuit filed.
9. Then, secondly, the presuppositions that allow the objection of lace of passive standing filed by this party are upheld, since the evidence provided, and even from what the plaintiff himself has acknowledged, the party who would have incurred the – alleged – illicit act in making the communication referred to in the case was Barrick Gold Corporation and not our client.
10. In this regard, it is relevant to note that the plaintiff’s only argument for forcibly trying to establish some type of connecting factor, is indicated briefly in a single paragraph of the reply, alluding to the location of the Pascua Lama project and the owner of said project, inexplicably concluding that “The information in the publication, evidently came from the Chilean company, domiciled in the commune of Providencia, Metropolitan Region.”
11. Beyond the fact that even if what the plaintiff indicates is true, which we categorically deny, it would not allow a sufficient connecting factor to attribute jurisdiction to the national courts or attribute passive standing to our client, this Court will be able to verify that the opposing party did not submit a single piece of evidence in the trial to support this statement.
12. There is no record of a single communication between CMN and Barrick, or any other evidence from which it may even be inferred that the information in the publication came from CMN.  The website – owned by Barrick – is not a medium that is controlled or that belongs to CMN, having no interference in the decision to publish any information on said website or its content.
13. In this manner, it was proved that the Canadian company, Barrick Gold Corporation was the author of the relevant publication, made on its own website of foreign domain, and that all the background to which both the plaintiff refers in support of his action and the content of the publication itself operate abroad, thus proving the cases of fact make it appropriate to declare the lack of jurisdiction and competence of the national courts because there is no factor of connection with our jurisdiction, and the lack of passive standing of our client, who – according to what the same plaintiff himself acknowledges – has not taken part in the publication of the communication.

 

2. It has been established that the date of publication is December 21, 2011, and the action filed is prescribed.

 

14. By means of the acts of diligence dated August 17, 2018 and May 16, 2022, signed by the Notary Public of the 48^th Notary of Santiago, Mr. Roberto Cifuentes Allel, who certified the date of the publication imputed to our client, available on the web web https://www.barrick.com, specifically in the news section of 2011 of this page, in the link https://www.barrick.com/news/news-details/2011/False-and-Misleading-Press-Release-Issued-by-Mountain-West-Resources-Inc/default.aspx , which clearly indicates December 21, 2011 as the date of publication.
15. As is apparent from the case before this Court, those documents were not objected to by the opposing party, within the deadline, producing full proof as to proving the certain date on which the communication was made.
16. For his part, the plaintiff expressly and voluntarily acknowledged that the publication of the alleged injurious facts would have occurred on March 8, 2012, “this being the exact date of their occurrence and the damages claimed in the file” – without submitting background information explaining why he modifies the effective date of the publication confirmed by this party, that is, on December 21, 2011.
17. The truth, Your Honor, is that whether any of these dates are considered, it can only be concluded that the action is irremediably prescribed.  In fact, if the illicit act had been committed on March 8, 2012, the service of the lawsuit that interrupted the limitation period was only made on June 8, 2018, that is, 6 years and 3 months since the alleged illicit act.  Even if it is admitted that the mere filing of the claim is sufficient for the interruption of the deadline – and taking as a reference the date of the publication indicated by the opposing party – the action was filed on November 29, 2016, in circumstances that were prescribed in March of the same year.
18. Thus, having established the date of the publication imputed to CMN, it was also proved the validity of the statute of limitation of the trial brought by Mr. Lopehandia.  It should be noted to this Court that there is no reason to alter the form of the calculation of the limitation period, because the plaintiff himself expressly acknowledged in the present case that the alleged damages were manifested on exactly the same day as the illicit act was committed.

 

3. The precise content of the publication has been proven, which relates facts in a descriptive way and in no case constitutes the alleged insult intended by the plaintiff.

 

19. This party submitted the act of diligence signed before the Notary Public of the 48^th Notary of Santiago, Mr. Roberto Cifuentes Allel, dated August 17, 2018, which certified – as noted above – not only the website where the publication was made, the entity that made it, and its date, but also the content of it.  In addition, the free translation into Spanish of Barrick’s statemen imputed to CMN, entitled in English “False and Misleading Press Releases Issued by Mountain-West Resources, Inc.”, which was not objected to by the counterparty in accordance with the provisions of Article 347 of the CPC, and therefore produces full evidence in its content, was attached, which is worded as follows:

 
[Press release reproduced.]

20. As this Court can see, Barrick Gold Corporation’s publication is eminently descriptive and framed within its legitimate constitutional right to inform and issue and opinion.
21. In this regard, the only hypothesis that our civil law contemplates access to compensation for damages caused by expressing opinions or ideas is in the case that the opinion is considered “abusive”, which our doctrine has interpreted as “intolerable insults” or “when they are false fasts that affect the name or reputation, disclosed without care that the legal system considers enforceable.” In this sense, it is relevant to make this Court aware that our jurisprudence has established that there is not even a negligent act in publishing information that is in the public domain, as is much of what is indicated in the publication.
22. Moreover, as stated in the defense, defamation requires as an essential element the falsity of the statements made, which is a prerequisite for establishing guilt.
23. On the other hand, the plaintiff describes the publication as “insulting”, which “is defined by the voluntary insult and precisely aimed at affecting the honor of others.” Thus, the opposing party must establish that it was carried out with the sole purpose of damaging the honor of the person concerned.  Likewise, jurisprudence has held that this illicit act is not configured when it comes to mere expressions of protest, displeasure and censorship against specific behaviors of another subject.
24. That being the case, despite the fact that Mr. Lopehandia had not submitted any document or antecedent to comply with the procedural burden that fell to him to prove the injurious nature of the publication, proving not only its falsity, but its objective of damaging his honor, it is clear from its mere reading that it could in no case be classified in such a way.
25. In fact, Your Honor, as you will be able to appreciate from the content of the publication – which has been confirmed in the case – the account of the facts referred to Mr. Lopehandia and Mountain-West Resources Inc. cannot in any event constitute an abuse of Barrick Gold Corporation’s freedom of expression, because the expressions were truthful.
26. In fact, only by way of example, the statement that “neither Jorge Lopehandia, nor MWR have registered property rights in respect to Los Amarillos 1-3000 concessions or the Tesoro One 1-30 to Tesoro Twelve 1-5 concessions” could hardly be described as abusive or injurious.  That is a descriptive and objective phrase that is not intended to damage Mr. Lopehandia’s honor, but only to verify that he did not have ownership or the listed concessions.
27. Moreover, the veracity of that assertion has been proved by this party, by means of authorized copies accompanied by certificates of current domain issued by the Conservator of Mines of Vallenar of the survey of the mining concessions previously indicated.  Even, Your Honor, it is apparent from the same – scant – evidence submitted by Mr. Lopehandia that the ownership of the mining assets in question did not belong to the plaintiff.
28. Nor – and again only by way of example – has the plaintiff proved the insulting nature of the publication by indicating that Mr. Lopehandia “has a long history of filing false complaints against Barrick, in relation to the Pascua property.  In 2002, Barrick filed a defamation suit against Mr. Lopehandia in the Ontario Superior Court of Justice.  Mr. Lopehandia took no action in his defense and in 2003, Barrick obtained damages against Mr. Lopehandia.  In June 2004, the Ontario Court of Appeal issued a judgment against Mr. Lopehandia awarding Barrick for increased general damages, punitive damages, and judicial restraint (…).
29. Indeed, it is absurd to maintain that in view of the fact that, in addition to the fact that the assertion was not intended to harm Mr. Lopehandia’s honor, it describes facts that are true, according to what this same party has established in the records when submitting the judgment of the Court of Appeal for Ontario of June 4, 2004, in Court File #C-39837 – submitted uncontested with its proper translation – and most importantly, Your Honor, in the public domain, there cannot be, as has been indicated, any insult to publish information that is publicly accessible.
30. In this regard, Your Honor, the opposing party has not provided evidence of any kind to prove the insulting nature that he wrongly attributes to the publication, apparently forgetting that we are facing a trial of extra-contractual liability for the – alleged – existence of an insult that would have damaged his honor, to proceed to provide evidence on background and controversies in relation to the ownership of the Pascua Lama project, which have nothing to do with the present case.
31. In this way, it has been established that one of the essential elements of extra-contractual liability that the opposing party intends, that is, the guilty participation of our client in an illegal act or fact, does not exist.

 

2. EVIDENCE POINT 2: "LINK BETWEEN THE ENTITY WHICH MADE THE PUBLICATION AND THE DEFENDANT"

 

32. In this regard, (i) it was proven that Compania Minera Nevada SpA and Barrick Gold Corporation are companies with distinct legal personality, and (ii) beyond belonging to the same economic conglomerate, no other type of relationship between the two companies was proven.

 

1. It was proven that Compania Minera Nevada SpA and Barrick Gold Corporation are companies with distinct legal personality

 

33. To prove the foregoing, this party confirmed the entire process of incorporation of CMN and the social modifications that the company has experiences, together with a certificate of shareholders of the company at the end of 2011, date of the publication imputed to my client.

 

34. The submitted documents correspond to:

 

1. Authorized copy of the public deed of incorporation of the mining corporation “Compania Minera Nevada”, dated December 6, 1977.  In this deed it is stated that the mining concessions “Amarillo 1-3000 contributed in ownership to the its capital.
2. Authorized copy of the extract of the public deed of merger by which Compania Minera Barrick Chile Dos Limitada was incorporated into Compania Minera Nevada S.A. dated December 21, 1999.
3. Authorized copy of the notarization of the extract of the transformation of Company Minera Nevada S.A. into Compania Minera Nevada Limitada, dated October 3, 2000.
4. Authorized copy of the public deed of modification of the object of Compania Minera Nevada Limitada, by its partners Compania Minera San Jose Inc, IMV Inc. and Minera San Francisco S.A. dated January 27, 2009.
5. Authorized copy of the public deed of transformation of Company Minera Nevada Limitada into Company Minera Nevada SpA, by its partners Minera San Jose Inc, IMV Inc., and Minera San Francisco S.A. dated December 1, 2009.
6. Authorized copy of public deed of modification and reduction of the share capital of Compania Minera Nevada SpA, dated July 13, 2010.
7. Copy of the registration of Compania Minera Nevada SpA, on page 3261, Number 1812 of the Commercial Registry of Santiago of 1985, with marginal annotations.
8. Certificate of shareholders of Compania Minera Nevada SpA at the end of 2011 – date of the publication – stating that at that date its sole shareholder is Compania Minera San Jose Inc.

35. From the submitted documents – which constitute full proof as they are public instruments not objected to on legal grounds – it was proved that Barrick Gold Corporation has never even had a direct shareholding in CMN, much less merged with the latter.

 

36. In this way, it was proven by this party that CMN and Barrick are different legal entities incorporated in different countries and with their own assets.

 

2. Beyond belonging to the same economic conglomerate, no other type of link between the two companies was established.

 

37. As Mr. Lopehandia indicates in his lawsuit and as this party acknowledges in its filing dated June 6, 2022, CMN is a subsidiary company – through other companies – of Barrick Gold Corporation, an issue that is not in dispute by the parties.

 

38. However, the plaintiff also attributed the status of “representative” of Barrick to CMN, in his desperate attempt to attribute in some possible way responsibility to our client.  The foregoing, even if true – which we categorically deny – would not give rise to any type of responsibility of our client, since the effects of the acts of the representative are imputed to the principal.

 

39. In any event, as this Court has been able to observe, the opposing party did not provide evidence of any kind to suggest the existence of any mandate or representation of CMN towards Barrick, which was the plaintiff’s burden to prove, a question which was simply impossible in the absence of such a relationship.

 

40. Moreover, Your Honor, if one wanted to argue about the control that one company can exercise over the other in decision making, obviously that control would be exercised by Barrick over CMN, and not the other way around, given the corporate structure.  It is not clear how CMN could have such interference to decide for Barrick to publish on its website.

 

41. Thus, it is evident that the impertinence of the assertions of the plaintiff that we are dealing with the same economic conglomerate as the sole and exclusive basis to sustain the standing of our client and its participation in an unlawful act is evident, since there is no doubt that this in no case implies assuming that any of the member companies is responsible for the acts of another company in the same group.

 

42. In conclusion, it has been proved by this party that CMN and Barrick are separate legal persons, one incorporated in Chile in 1983, the other in Canada, with its own assets and whose relationship is limited to an indirect parent – subsidiary relationship that Barrick holds over CMN.

 

3. EVIDENCE POINT 3:  EXISTENCE OF THE DAMAGES DEMANDED. IN THE AFFIRMATIVE, NATURE AND AMOUNT THEREOF", EVIDENCE POINT 4: "EXISTENCE OF MORAL DAMAGE. IN THE AFFIRMATIVE, FACTS CONSTITUTING IT."

 

43. Your Honor, as this party has indicated in the first pages of its contestation, Mr. Lopehandia brought an action in a confusing and inexplicable manner, as he focuses the lawsuit – and all the evidence he has submitted in the case – on making references to the dispute over the ownership of the Pascua Lama project, in circumstances in which that matter is not only presented in a fallacious manner, but is totally and absolutely alien to the object of the lawsuit.

 

44. It is along this line that the plaintiff forgot that he had the burden of proving the damages he claims.  As can clearly be seen from the case file, Mr. Lopehandia did not attach a single document or provide evidence of any kind that would allow us to confirm the existence of the damages that he unreasonably demands.

 

45. Indeed, Mr. Lopehandia indicates that as a result of the press release, it would have caused a) “an absolute detriment of personal and commercial position”.

 

46. Although it is evident that the damages claimed are vague, hypothetical and uncertain, it is necessary to remind this Court that Mr. Lopehandia did not submit any background to prove the damages or losses to which he refers, nor to prove his status as a reliable individual.  Nor is there any record in the file regarding the loss of a credit agreement or of the “family problems” that this would have caused.

 

47. Likewise, and for obvious reasons, the “decrease in the favorable status that until now he held as a litigant, in the various trials that currently confront Barrick Corporation”, was not confirmed in any way.  Who knows how he intended to prove such an injury, that is, that the legal judges would no longer consider his legal position as a result of the publication.  You judge, Your Honor.

 

48. Even less did the submitted documents prove that MWR would try to “evaluate the conclusion of the final purchase contract”, which is why he requests the sum of $1,400,000,000.  Indeed, there are no communications that account for the alleged pre-contractual stage in which Mr. Lopehandia and MWR would find themselves, nor anything that minimally proves the existence of the contract – and what about the supposed “evaluation” that MWR would now be carrying out as a result of the publication - .

 

49. Finally, the plaintiff would also seem to have forgotten to submit the documents that would prove his main compensation item, consisting of the state of affliction, pain or distress that the publication would have generated and or which he requests no less than $1,600,000,000.

 

50. In short, Your Honor, and what is truly unusual in a lawsuit for no less than $3,000,000,000, no record was confirmed or submitted to prove that the publication would have caused any of the damages for which the plaintiff sues, much less the existence even of the aforementioned damages.

 
THEREFORE,
 
We respectfully request this Court to bear in mind the considerations set out in relation to the evidence given in the file and on the merits of them, to reject the lawsuit in all its parts, with express condemnation of costs to the plaintiff.