Title:
Anvil Mining Ltd. v. ACCI (Association Canadienne Contre l’Impunité)
Court:
Montréal Court of Appeal
Citation:
N°500-09-021701-115
Date:
24 January 2012
Instrument(s) Cited:
Quebec Civil Code, Articles 3148(2), 3135 and 3136
Case Summary:
Background:
This case was brought by the Canadian Association Against Impunity (Association Canadienne Contre l’Impunité or “ACCI”), whose mission is to assist victims of rights violations committed by companies or persons in countries where the judicial system does not allow for credible access to justice. ACCI alleged that Anvil, an Australian mining company incorporated in Canada, was responsible for providing logistical assistance and transportation for the troops responsible for the 2004 massacre in the Democratic Republic of Congo (“DRC”) city of Kilwa near one of the company’s mines, which resulted in the deaths of 70 to 80 persons, amongst whom – a number of children. Anivl is alleged to have provided vehicles, petrol and food supplies for the troops.
ACCI sought to institute a class action against Anvil in the interests of “all those who lost members of family, who were victims of abuses, of the pillaging of their property, or who had to flee Kilwa as a result of the illegal actions of the armed forces of the DRC”. They relied on article 3148(2) of the Civil Code of Quebec, which gives Quebecois courts jurisdiction to hear cases in which “The defendant is a company not based in Quebec but which has an office there and the disputes relates to its activities in Quebec”.
Issue and resolution:
Business and children’s rights. Whether a court in Quebec has jurisdiction to hear a case against a company regarding its activities abroad. It was held that Quebec courts had no jurisdiction as the disputed actions did not relate to anvil’s activities in Quebec as no ‘real and substantial link’ could be established.
Court reasoning:
The court’s decision turned on the issue of whether the dispute relates to the company’s activities in Quebec, as required by the Civil Code in order for the court to have jurisdiction over the case. Previous court decisions have interpreted this to require a ‘real and substantial link’ between the company’s activities and the violation. The court considered the role played by one Anvil employee, based in Quebec, who was in charge of ‘crisis managment’ in 2005. It was decided that the employee had no control over the management of the mine and that, in any case, the decision to ‘collaborate’, or to ‘not refuse to collaborate’, with the military could not be linked to the actual management of the mine. Therefore, there was no real and substantial link between this employee’s work activities in Quebec and what occurred in the DRC, and jurisdiction could not be established under the Civil Code.
‘Forum of necessity’
ACCI asked the court to accept the case given the fact that the victims cannot obtain justice in the DRC, nor can they access the Australian justice system. Quebecois courts can accept cases over which they otherwise lack jurisdiction ‘in exceptional circumstances’.
The burden of proof is on ACCI to show evidence that the victims could not have taken their claim(s) before the DRC’s courts. ACCI had only presented evidence regarding the difficulty in convincing DRC lawyers to take up the case, but according to the court, this did not sufficiently demonstrate the impossibility of accessing a foreign court.
Furthermore, Anvil did not have any registered office or (commercial) activity in Quebec prior to June 2005, whereas the events in Kilwa took place in October 2004. The Montréal office was set up for the sole reason of convenience for the Quebec-based representative of Anvil, who was only responsible for maintaining the relationships with investors and shareholders, and did not intervene in the management of the mine.
For all the above reasons, the Court reached the conclusion that Quebecois courts did not have jurisdiction to hear this class action, but according to the Court, the victims had the possibility of initiating proceedings in another jurisdiction.
Impact:
The ACCI unsuccessfully tried to appeal this decision before the Supreme Court of Canada.
It should be noted that, while the case was being considered by the courts, Anvil Mining Limited was acquired by Minmetals Resources in March 2012, which denies any culpability in the Kilwa massacre, stating once more that logistical support had been requested by authorities.
Link to Full Judgment:
http://citoyens.soquij.qc.ca/php/decision.php?liste=58481473&doc=5047861179306CD8FEBD381B0C210B59D57CA9DFDC4C6BC81859A8357641E233&page=2
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.