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

Court	Québec Superior Court, Canada
Case number	500-06-000530-101
Decision title	Judgment
Decision date	27 April 2011
Parties	Canadian Association Against Impunity (CAAI) Anvil Mining Ltd.
Categories	War crimes
Keywords	corporate accountability, war crimes
Links	Judgment

Summary

A Canadian human rights organization filed a complaint against a Canadian mining company which operated in the Democratic Republic Congo (DRC). It does so 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 the town of 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 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.

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 and 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.

Related developments

Anvil appealed to the judgment of the Superior Court. 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 6^th Military Region Lubumbashi to do everything to regain Kilwa in 48 hours. Anvil Mining Ltd., a Canadian mining company with a main office in Perth, Australia (para. 5), ran the Dikulushi mine, which was located 55 kilometres from Kilwa. Also, Anvil has a port in Kilwa. The Governor of the Province of Katanga, upon request by the Commander of the 6^th Military Region, contacted Anvil to request logistical support for the military of the DRC. Anvil put at the disposal of the 62^nd Infantry Brigade three trucks, a jeep and food (para. 2).

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.

Core legal questions

Whether the Court had jurisdiction in this case and, if this would be the case, whether the Court should exercise jurisdiction.
Whether Anvil (not domiciled in Québec) has an establishment in Québec and whether the dispute relates to activities in Québec.
Whether the Québec court is suitable, and whether another court is clearly more suitable to resolve the dispute between the parties involved.

Specific legal rules and provisions

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

Court's holding and analysis

Anvil had attempted to supplement the conditions for jurisdiction in Article 3148(2) of the C.C.Q. (the corporation should have an establishment in Quebec and there should be a relation between the dispute and the corporation’s activities in Québec) with a third condition: that the establishment must exist at time of the allocated facts. The Court rejected this, as this condition is not supported by any law (para. 16).

Anvil had argued that its office in Montreal only served as a liaison between the company and investors in North America and that, therefore, the conditions of Article 3148(2) of the C.C.Q. had not been met. The Court rejected this argument, stating that the Vice President Corporate Affairs of Anvil Montreal was necessarily linked to Anvil’s activities in the Dikulushi mine in the DRC, as this was Anvil’s main activity (para. 29).

The Court established that it was impossible to determine that courts in either the DRC or Australia would be more suitable to rule on this case. It held that everything indicated that if the Court would dismiss the action, there would be no other possibility for victims to be heard in a civil procedure (paras. 38-39).

Further analysis

J. Kyriakakis, 'Australian Prosecution of Corporations for International Crimes: The Potential of the Commonwealth Criminal Code', Journal of International Criminal Justice, 2007, Vol. 5, pp. 809-826;
G. Saumier, 'Forum Non Conveniens in Quebec: Assessment of a Transplant', Melanges en l'honneur du Professeur Alain Prujiner, S. Guillemard 2011, pp. 345-370.

Instruments cited

Canada: Civil Code of Québec, S.Q., 1991, c. 64, 1 January 1994.

Related cases

Québec Court of Appeal, Canada, Canadian Association Against Impunity (CAAI) v Anvil Mining Ltd., Case No. 500-09-021701-115, Judgment, 24 January 2012.
Military Court of Katanga, Congo, Public Prosecutor v. Adémar Ilunga et al. (CAAI), Case No. R.P. Nº 010/2006, Judgment, 28 June 2007.