Burnaby couple denied in bid to quash lawsuit over Fiji mine

A Burnaby couple will have to face court in BC rather than overseas after they were accused of defaming a resource extraction company that contracted their company, Bonga Xploration Drilling Supplies, to operate mining exploration in Fiji.

Lloyd Gale, who heads Smithers-based Bonga, and his spouse, Viccy Namuyomba, are accused of defamation after they reportedly claimed Vancouver-based Thunderstruck Resources and its CEO, Bryce Bradley, stole their mining equipment.

The court case is before the BC Supreme Court, but Gale sought to have the case dismissed, suggesting Fijian courts held jurisdiction over the matter. But in a recent decision, the court ruled that BC’s courts are the appropriate venue for the dispute.

The cases arose out of a dispute after the two companies entered a contract over a resource exploration project in Fiji in May 2020, according to the decision.

None of the claims have been proven in court, with a decision made only on whether BC courts have jurisdiction over the matter.

When Bonga met Thunderstruck

Bonga was contracted to do drilling and other services for Thunderstruck in its Fijian projects, with Bonga obliged to provide its own employees, materials, supplies, and equipment.

In June of that year, Bonga arranged the delivery of equipment to Fiji for the contract work, also buying equipment in Fiji. Gale followed, arriving in August 2020 to begin work.

According to the ruling, Bonga faced challenges recruiting on account of the COVID pandemic, so Thunderstruck agreed to help with hiring locally, through their Fiji-based company FijiCo.

Bonga got to work at two mines in September and December 2020, but the work quickly came to a halt for the company. On Jan 11, 2021, Thunderstruck terminated the contract.

Thunderstruck claims the termination arose “from various disputes,” according to the ruling, while Gale says it came without previously raising any concerns with him.

Before work began, Bonga was prepaid an initial deposit of $105,000, for 30% of the total expected work to be done, in order to enable Bonga to buy and maintain drilling equipment for the project.

Bonga was expected to apply that initial deposit to invoices as work began, but by the time the contract was terminated, the vast majority of that money—$96,250—had not been applied to invoices.

As a result, on Jan 13, 2021, Thunderstruck put a lien on Bonga’s equipment until the company repaid the amount of the initial deposit that had not been earned under the contract.

Taking it to Fiji’s courts

And that’s when the legal action began, with Gale threatening in emails that he would seek legal action against Thunderstruck in Canada.

“In those communications, Mr. Gale specifically referred to the contract being governed by Canadian laws,” reads the court ruling by Justice Shelley Fitzpatrick.

“However, Bonga did not file any action in Canada; rather, Bonga reported Thunderstruck and Ms. Bradley to the Fijian police, alleging theft by Thunderstruck of the Bonga equipment.”

After the contract was ended, Thunderstruck claims Bonga, Gale, and Namuyomba posted on several websites, including Stockwatch.com and CEO.ca, alleging Thunderstruck had stolen the equipment. Gale also alleged that Bradley had engaged in “theft” of Bonga equipment in emails to two Thunderstruck directors.

On March 1 last year, Bonga filed the first legal proceeding from the issue, seeking an order from a Fijian court that FijiCo pay $208,600 plus interest. On the same day, the company also filed with a Fijian court in hopes of getting an injunction against FijiCo and Thunderstruck using the equipment.

FijiCo’s response, on March 16, was to ask the court to dismiss the proceedings against it, noting Bonga’s contract was with Thunderstruck and not FijiCo.

Legal fight comes home

On April 7, the legal dispute came to Canada, with Thunderstruck filing a notice of civil claim with the BC Supreme Court.

The notice seeks damages from Bonga for alleged breach of contract, restitution from Bonga “for its unjust enrichment due to the deposit payment,” and damages from Bonga, Gale, and Namuyomba for alleged defamation and libel.

The company and the couple filed responses on April 29 claiming BC courts did not have jurisdiction, according to Fitzpatrick’s decision. And the following month, the three defendants filed responses “denying all allegations and asserting their jurisdictional response.”

Gale and Bonga then filed a counterclaim, adding FijiCo as a defendant. In the counterclaim, they referred to the claims set out in their response to the original lawsuit. The counterclaim seeks damages for “fraudulent and negligent misrepresentation,” breach of contract, and unjust enrichment, along with a return of the Bonga equipment or damages in lieu.

According to Fitzpatrick, Bonga’s claims in Fiji courts, including a second claim that increased the money sought to $828,000, were ultimately unsuccessful.

The court in Fiji set aside both of Bonga’s claims against FijiCo.

“In addition, the Fiji court ordered that Bonga pay FijiCo’s costs. Bonga has not paid these costs, as ordered,” Fitzpatrick noted.

All the while, Bonga, Gale, and Namuyomba sought to have the BC claims quashed.

The questions to be answered

In deciding whether to defer to Fijian courts, Fitzpatrick put forward three questions: whether the defendants voluntarily submitted to the BC court’s jurisdiction; whether they are “ordinarily resident” in BC; and whether there are “real and substantial connections between this dispute and BC.”

And the answer to all three questions, Fitzpatrick found, favoured the plaintiffs.

With respect to the first question, the couple and the company had filed counterclaims with BC courts. Fitzpatrick found that to be voluntarily submitting to the court’s jurisdiction, despite claims by the defendants that they had “no choice” but to file the counterclaims.

On the second question, Fitzpatrick noted that Bonga is registered as a BC company, and Namuyomba and Gale both live in Burnaby.

And on to the final question, Fitzpatrick agreed with the plaintiffs that both companies and all individuals named in the lawsuits are BC-based. Further, payments were made under a BC-made contract penned by Bonga states it is subject to BC law, and the payments were made in Canadian dollars to Bonga’s Scotiabank account.

The defamation claims were also connected to BC because all defendants and plaintiffs are BC-based, and Thunderstruck relies on its reputation in BC to attract investors.

Fitzpatrick wrote that it would be “manifestly unjust” to allow Bonga and Gale to force the matter to return to Fijian courts.

“In my view, the defendants have failed to meet their burden to show that Fiji is clearly the more appropriate forum to decide all of the issues in this proceeding,” Fitzpatrick wrote.

“To the contrary, the overall circumstances clearly support allowing the BC action to continue.”

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