Association canadienne contre l’impunité (A.C.C.I.) v. Anvil Mining Ltd.

Association acnadienne contre l’impunité (“ACCI”), on behalf of victims of Kilwa massacre and NGOs, made a motion for appeal to proceed class action against Anvil Mining Limited (“Anvil”). Anvil is a Canadian mining company with headquarters in Perth, Australia, with sole business is exploitation of copper near Dikulushi in the Democratic Republic of the congo (“DRC”).

On October 13, 2004 small group of armed men claiming to be part of the Mouvement révolutionnaire pour la libération du Katanga entered a town named Kilwa in DRC proclaiming Katanga’s independence. The Congolese government retaliated by sending its army to reclaim Kilwa. This military action resulted in 70 to 80 civilian deaths which according to the United Nations Organization Stabilization mission in the Deomcratic republic of the Congo(“MONUSCO”) were done in form of on spot execution.

ACCI alleges Anvil had provided Congolese government military with logistic help including transporting troops, providing trucks and drivers as well as food supplies.

In 2007, Anvil’s executives were brought before Congolese military court under war crimes but was exonerated.

The case was also brought in Australia in 2007, however, was dropped after Congolese military court and its Superior Court finalized its ruling.

The Court found that it did not have jurisdiction to hear the case. The Court sought the Civil Code of Québec ("CCQ") to determine its international jurisdiction set out under articles 3134 to 3154 of the CCQ. Of these articles, article 3148(2), 3135 and 3136 were used to test the Court's jurisdiction over the case.

ACCI argued that article 3148(2) of CCQ provided Québec authorities jurisdiction by stating that "the defendant is a legal person, is not domiciled in Québec but has an establishment in Québec, and the dispute related to its activities in Québec."

Anvil countered by stating that the Court must dismiss the case by upholding doctrine of forum non conveniens under article 3135 of CCQ.

In addtion to aforementioned articles, the Court also took into consideration the article 3136 of CCQ which stipulates forum of necessity doctrine where it gives Québec authority jurisdiction if a dispute has sufficient connections with the Province of Québec.

In regards to the article 3148(2), the Court held it did not have jurisdiction since Anvil had no real and substantial link to Québec: Anvil neither had an establishment in Québec at the time of Kilwa massacre nor shown related activities in Québec.

The Court further declared the article 3136 of CCQ stipulating forum of necessity was not applicable to the case. It stated that ACCI's defense that it was difficult to convince counsel to bring proceedings in other forum was insufficient to convince the Court to take jurisdiction.

Hence, the Québec Court found itself unable to hear the case.

"I am unable to find a connection between the faults allegedly committed by the Anvil executives in October of 2004 and any activities allegedly undertaken in Quebec in June of 2005. I am even less able to find a 'real and substantial connection' with Quebec authorities." Para. 93

"The interpretation of articles 3135 and 3136 C.C.Q. takes a different, even contrary, approach. Article 3135 C.C.Q. states that if the Quebec authority has jurisdiction, it may decline it only in exceptional circumstances. article 3136 C.C.Q. provides that if the Quebec authority does not have jurisdiction, it may accept it only in exceptional circumstances." Para. 97

"It is regrettable to note that citizens face such difficulties in obtaining justice. Despite all the sympathy the victims warrant and the admiration that the commitment of the NGOs within the ACCI deserves, however, I find that the law prevent us from recognizing that Quebec has jurisdiction to hear this class action." Para. 104