Canadian Association Against Impunity (CAAI) v Anvil Mining Ltd.

Court	Québec Court of Appeal, Canada
Case number	500-09-021701-115
Decision title	Judgment
Decision date	24 January 2012
Parties	Canadian Association Against Impunity (CAAI) Anvil Mining Ltd.
Categories	War crimes
Keywords	corporate accountability, war crimes
Links	Judgment: English Judgment: French (original)

Summary

A Canadian human rights organization filed a complaint against a Canadian mining company which operated in the Democratic Republic Congo (DRC), on behalf of several Congolese victims (and relatives of victims) of violence committed by the army of the DRC in October 2004. Allegedly, Anvil Mining Ltd. provided the army with, for example, jeeps and cars to reach Kilwa, were the human rights violations were committed.

Anvil protested against the complaint filed, arguing that the Court in Québec did not have jurisdiction. The Superior Court disagreed and stated that Anvil’s activities in Québec and the mining activities in the DRC were sufficiently linked for the Court to have jurisdiction. Moreover, the Court stated that it did not consider courts in either the DRC or Australia, were the main office was located, more suitable to deal with this case. The Court of Appeal overturned this judgment, stating that the Quebec office of Anvil primarily focussed on investors and stakeholders. Therefore, the link with events in the DRC could not be established. Furthermore, it held that the complaint could also be heard in another country, most specifically Australia. Therefore, the Court found that authorities in Quebec did not have jurisdiction.

Procedural history

This legal action in Canada derived from several failed attempts to have Anvil employees convicted in Congo and failure to find lawyers willing to represent the claimants in Australia.

On 8 November 2010, a Class Action Complaint was filed by the Canadian Association Against Impunity (CAAI) on behalf of Congolese victims of massacres committed in the Democratic Republic of Congo (DRC).

According to this complaint, Anvil provided trucks, drivers and other logistical support to the Congolese military, which enabled the military to commit human rights abuses, specifically during the Kilwa massacre in 2004.

Anvil filed a motion to dismiss on jurisdiction grounds, arguing that the Superior Court did not have jurisdiction because Anvil is not domiciled in Québec, Anvil had no establishment in Québec at the time of the events, the dispute did not relate to anvil’s Québec activities, the alleged faults and damages all occurred outside Québec. In the alternative, Anvil argued that the court should exercise its discretion to decline jurisdiction on the grounds that Canada was not the place to decide on the case. The Superior Court rejected this motion on 27 April 2011. Anvil appealed against this decision.

Related developments

On 24 January 2012, the Québec Court of Appeal overturned the Superior Court’s findings, stating that there were not enough connections between this case and Québec. Also, it felt that Québec was not the place to decide on this case. The claimants requested the Supreme Court to review the case. This request was denied.

Legally relevant facts

In October 2004, the Congolese town of Kilwa was attacked and subsequently taken over by insurgents from the Revolutionary Movement for the Liberation of Katanga. President Kabila of the Democratic Republic of Congo ordered the Military to do everything to regain Kilwa (paras. 21-22). Anvil Mining Ltd., a Canadian mining company with a main office in Perth, Australia, ran the Dikulushi mine, which was located 55 kilometres from Kilwa (para. 23). Also, Anvil has a port in Kilwa. According to CAAI’s claims, Anvil provided logistical support to the military (para. 26).

In the process of regaining control over Kilwa, the Congolese Armed Forces committed widespread atrocities. After the town was shelled, Congolese soldiers committed, e.g., torture, rapes and extra-judicial killing. According to the United Nations, 70 people perished (para. 25).

Core legal questions

Did the first judge err by concluding that the Quebec authorities had jurisdiction pursuant to section 3148(2) C.C.Q., thus in concluding that Anvil had an establishment in Quebec and that the dispute was sufficiently related to the activities in Quebec?
If the Quebec authorities had jurisdiction pursuant to section 3148(2) C.C.Q., did the Judge err by not declining his jurisdiction for the benefit of the DRC or Australian authorities pursuant to section 3135 C.C.Q.?
If the Quebec authorities did not have jurisdiction pursuant to section 3148(2) C.C.Q., did they have jurisdiction pursuant to section 3136 C.C.Q.? (This section states hat a Quebec Court can have jurisdiction if the case cannot be heard in another country).

Specific legal rules and provisions

Articles 307, 3135, 3136, 3137 and 3148 of the Civil Code of Québec.

Court's holding and analysis

The Court of Appeal overturned the Superior Court’s judgment. Most importantly, it held that the dispute did not relate to Anvil’s activity in Quebec (para. 87). The only representative in Quebec had a task to primarily maintain relations with investors and stakeholders. He did not participate in the management of the mine. The Court held, furthermore, that there is reason to question whether the decision to ‘collaborate’ or ‘not to refuse to collaborate’ with the military personnel was related to the management of the mine, per se (para. 84). As the Court did not have jurisdiction under section 3148(2) C.C.Q., the Court did not have to assess whether section 3135 C.C.Q. applied.

Although the Court held in general that in several countries, citizens do not receive a fair and equal trial, this does not hold true for Australia. There, difficulties had been expressed about a lack of collaboration on the part of the authorities from the DRC. The Court held, however, that it did not believe that the situation would be different if proceedings were to take place in Montreal (para. 101). Therefore, the Court held that Quebec did not have jurisdiction to hear this class action.