On January 24, 2012, the Québec Court of Appeal rejected
an appeal on a motion made by the Association Canadienne Contre
l'Impunité/Canadian Association Against Impunity (CAAI)
to request the authorization to institute a class action proceeding
against Anvil Mining Limited (Anvil) regarding its alleged
complicity in the commission of war crimes and crimes against
humanity in the Democratic Republic of the Congo (DRC).
The CAAI was set up under the joint initiative of five NGO's
for the purposes of instituting class actions with respect to
events that occurred in the DRC, more particularly in 2004. Anvil
is a Canadian mining company that was incorporated in the
North-West Territories in 2004, and its head office is located in
Perth, Australia. Its principal, if not sole activity, is the
exploitation of a copper and silver mine located in the DRC copper
belt close to the border with Zambia. Since 2005, Anvil leases
office space in Montréal, Québec where two employees,
the V.-P. corporate affairs and a secretarial assistant, undertake
work for the company. Although listed on the TSX, the only reason
why Anvil opened an office in Montréal is because the V.-P.
preferred to live there, rather than in Toronto.
The class group of people sought to be represented by the CAAI
encompassed all those who had suffered the loss of a family member,
injuries, damages to property or who had to flee the City of Kilwa
located in the DRC, resulting from a raid conducted in October 2004
by the Armed Forces of DRC in order to suppress an armed rebellion.
It is alleged that Anvil was complicit in assisting the DRC Armed
Forces in the conduct of such actions.
The issue raised before the Québec courts was whether or not
these courts actually had jurisdiction to hear the CAAI's claim
in the first place, since the actions complained of took place
within the territory of the DRC State.
In contrast with the other provinces and territories of Canada, the
law of the Province of Québec is based on civil law. In the
case at hand, the matter turned on the interpretation and
application of the particular wording of three important articles
of the Civil Code of Québec (CCQ), where the principles of
private international law concerning the attribution of
jurisdiction to domestic courts are codified. Although the matter
under review is based on civil law, the exercise of discretion
vested in the Québec courts to assert or deny jurisdiction
in a case such as this one involves, as will emerge from the
following review, the articulation of underlying policy
considerations that can have wide-ranging implications.
In the case at hand, three competing principles were in play. Under
Title Three – International Jurisdiction of Québec
Authorities – Article 3148(2) of the CCQ provides that,
when a legal person (corporation) has an establishment (place of
business) in the Province of Quebec, the Québec courts have
jurisdiction to hear claims against it if the dispute relates to
its activities in Québec. Article 3135 CCQ, on the other
hand, provides that even if a Québec court has original
jurisdiction, it may nevertheless decline such jurisdiction in
favour of a more competent forum (this is known as the principle of
forum non conveniens). Conversely, under Article 3136, even when a
Québec authority has no original jurisdiction in the first
place, it may otherwise assume jurisdiction and hear a dispute if
the dispute has "sufficient connections" with the
Province of Québec and where proceedings could not possibly
be instituted outside of Québec (this is known as the
principle of forum of necessity).
At the beginning of the proceedings, Anvil filed a motion to have
the case dismissed before being heard on the merits on the basis
that the Québec courts lacked jurisdiction over the subject
matter of the proceedings. It was assumed for the purposes of the
proceedings that the alleged military actions by the DRC Armed
Forces had actually taken place and that Anvil had indeed provided
them with logistical support (air transportation to the conflict
site, and vehicles and food once on the ground). The Superior Court
of Québec (being the highest trial level court of first
instance in the Province) rejected Anvil's motion and Anvil
then appealed to the Québec Court of Appeal.
Anvil submitted to the Superior Court that its establishment in
Montréal only opened in 2005 and that it could not,
therefore, be held responsible for activities in Québec as
regards events that had occurred in the DRC in 2004. Moreover, the
activities of its establishment in Montréal had no relation
to the decisions that had been made with respect to the 2004
events. Anvil then moved on to present a subsidiary argument, being
the application of the principle of forum non conveniens, i.e.,
that the courts of the DRC were in a better position to hear the
claim since the alleged actions occurred in the DRC or,
alternatively, the Australian courts should hear the claim, since
the company's head office is located there.
The CAAI argued that Article 3148(2) CCQ only requires that one
establish that the corporation exercises activities in
Québec that are linked to the claim set out in the
litigation. In this case, it is alleged that the place of business
in Québec was directly involved in the "crisis
management" of the investors and of the corporate image
following the 2004 events. With respect to forum non conveniens, it
was submitted that Anvil had not demonstrated that either the DRC
or the Australian courts were better forums than the Québec
courts. Moreover, the CAAI submitted that the Québec courts
were the proper forum, given Anvil's own assertion that the
proceedings that were already conducted in the DRC are now
completed, and in view of the United Nation's High Commissioner
for Human Rights' harsh denunciation of the legal process of
the DRC Military Court, which resulted in only two military
personnel being found guilty of murder (and not of any war crimes).
All the other military personnel that had been implicated were
acquitted and the victims received no compensation. Also, an
attempt to institute a class action in Australia had failed due to
the fact that the government of the DRC obstructed the NGO's in
their efforts to contact the victims. The Australian law firm which
had initially accepted to take the case on behalf of the victims
eventually withdrew from the proceedings and, when no other legal
representation could be found, the claim was withdrawn.
The trial court ruled that Anvil's Montréal activities,
even if these essentially only involved dealing with investor
relations, were nevertheless related to the action being brought
before the court, because such activities were necessarily linked
to Anvil's single operation, being its mine in the DRC. The
trial judge also dismissed the forum non conveniens argument,
finding that it was impossible for the parties to be heard outside
of Québec.
On appeal, the Court of Appeal decided that in order for the
Québec courts to have original jurisdiction under Article
3148(2), it is sufficient that the defendant has an establishment
(place of business) in Québec and that the activity that is
the subject matter of the litigation takes place in
Québec.
In the instant case, Anvil had neither any establishment nor any
activity conducted in Québec in 2004. Moreover, the actions
of Anvil's representatives in Montréal in 2005 had
nothing to do with any alleged "complicity" that occurred
in 2004. Even if it is not necessary to establish that the
"decision" regarding participation in the events of 2004
must necessarily have been taken in Montréal, one must
demonstrate that the subject matter of the litigation relates to
activities in Québec. As such, the Court of Appeal found
that there was no "real and substantial link" with the
Province of Québec.
The Québec Court Appeal also dismissed the subsidiary forum
of necessity argument (that was designed to seek to extend
jurisdiction if none had been found in the first place), stating
that the CAAI had not demonstrated the impossibility for the
plaintiffs to have their case heard in a forum other than that of
the Québec courts. The Court indicated that such argument
could apply when issues arise in States in which citizens do not
have adequate access to justice. In this case, however, it was not
established that the victims had exhausted all of their local
remedies in the DRC. Moreover, Anvil's head office is located
in Australia. Australia does not fall into the category of States
where access to justice is problematic. As for the proceedings in
Australia, against the background of a "forum shopping"
submission, the Court considered that it was not sufficient to
merely allege that no representation could be obtained before the
courts of Australia (perhaps impliedly in view of the fact that
representation was in fact secured before the Québec courts,
which are renowned as "class action friendly").
The CAAI has filed an application for leave to appeal before the
Supreme Court of Canada.
The case is of significance because it highlights the extent
– and the limits – to which Courts are willing
to recognize or extend their jurisdiction over companies located
within their territory as regards the extraterritorial conduct of
such corporations, and, particularly, when such corporations are
alleged to be accomplices in the commission of war crimes and
crimes against humanity.
If the host State is unable to give redress, will the courts where
the corporation has establishments and activities step in to fill
in the gap? For the time being, on the facts of the matter placed
before it, the Québec Court of Appeal answered,
"No".
The issue is, however, timely. In a recent public speech given by a
newly-retired and admired judge of the Supreme Court of Canada, his
Lordship wondered whether courts (and Canadian courts in
particular) are rising to the challenge posed by human rights'
abuses in the Third World that are committed with the complicity of
corporations. If the complicity is shown, what is their
responsibility and who gets to decide? The matter being brought
before the Supreme Court in this case has all the ingredients to
address this question squarely and may have serious implications in
all other non-civil law Canadian jurisdictions, as it relates to
the exercise of judicial discretion in matters of attribution of
jurisdiction.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.