Does a Quebec court have jurisdiction over a company incorporated under the laws of the Northwest Territories of Canada, with a head office in Australia and a local office in Quebec, in respect of alleged war crimes that occurred in the Democratic Republic of Congo in the context of a military conflict between government troops and secessionist forces? This was the essential question addressed by the Quebec Court of Appeal in the case of Anvil Mining Ltd. v. Association canadienne contre l’impunité (2012 QCCA 117). In a judgment issued on January 24, 2012, the Court dismissed the action for lack of jurisdiction.
The facts of the case are as follows:
- The Association canadienne contre l’impunité or ACCI (Canadian Association against Impunity) is a non profit corporation established under the Quebec Companies Act by five NGOs working in the field of human rights. ACCI’s purpose is to assist victims of wrongdoing by companies or individuals in countries where the legal system does not allow for reasonable access to justice.
- Anvil Mining operates mines in the Democratic Republic of Congo. It is incorporated under the laws of the Northwest Territories of Canada, its head office is in Australia and it has an office in Montréal (in the province of Quebec) with one employee.
- ACCI initiated a class action lawsuit against Anvil Mining before the Quebec Superior Court on behalf of the civilian victims of the military conflict in Kilwa, in the province of Katanga, DRC. ACCI alleged that in October 2004, Anvil provided logistical assistance to the DRC military, which allegedly committed war crimes and crimes against humanity during the conflict with secessionist forces in Katanga. According to ACCI, Anvil used its aircraft to transport DRC troops to Kilwa, in addition to providing trucks, drivers, gasoline and food to the Congolese military.
The Superior Court allowed the class action to go forward. The Quebec Court of Appeal reversed that judgment and declared that the Quebec courts do not have jurisdiction over the action.
The principal question before the Court of Appeal was whether the Quebec courts have jurisdiction under Art. 3148(2) of the Civil Code of Québec, which provides as follows:
In personal actions of a patrimonial nature, a Québec authority has jurisdiction where … the defendant is a legal person, is not domiciled in Québec but has an establishment in Québec, and the dispute relates to its activities in Québec. [Emphasis added]
The key factual issue underlying the jurisdictional question was whether the dispute related to Anvil’s “activities in Quebec”. The Court reasoned as follows:
- Anvil employs only one person in Quebec whose job consists in maintaining relations with investors.
- The Montréal office did not even exist at the time of the alleged incidents in 2004.
- Anvil is traded on the Toronto Stock Exchange, and its Montréal office was established for the sole reason that the employee in question preferred to work in Montréal rather than Toronto.
- That employee had and has no role in Anvil’s management or operations, and nothing whatsoever to do with the company’s alleged conduct in the DRC.
- Although in his capacity as Anvil’s investor-relations representative the Montréal employee was involved in certain activities in June 2005 that could be characterized as “crisis management” in relation to events in the DRC, it is impossible to draw any link between the wrongdoing allegedly committed by Anvil in October 2004 and any such activity in June 2005.
- There is thus no basis to find that “the dispute relates to [Anvil’s] activities in Québec” within the meaning of Art. 3148(2) CCQ.
The Court of Appeal also dealt with Art. 3136 CCQ, which provides that Quebec courts may hear a dispute, even though they otherwise have no jurisdiction, if proceedings cannot possibly be instituted outside Quebec or where the institution of such proceedings outside Quebec cannot reasonably be required – provided that the dispute has a sufficient connection with Quebec. The Court held that, irrespective of the situation in the DRC, the fact that Anvil’s headquarters were in Australia meant that the alleged victims could have proceeded before the Australian courts. In fact, the record showed that the plaintiffs had tried but were unable to convince Australian lawyers to take up their case. The Court of Appeal found that there was no impossibility to proceed before a foreign court and that, in any event, the action did not have a sufficient connection with Quebec.
ACCI has announced its intention to file an application for leave to appeal to the Supreme Court of Canada.
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