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A Forum of Neccessity

Jan 12, 2012

Later this month, the Quebec Court of Appeal should rule on whether or not a class action suit can proceed against Anvil Mining for alleged involvement in atrocities by the armed forces of the Democratic Repulic of Congo. Hugo Lagacé, an LL.M. student at the Université du Québec à Montréal, was at the hearing on jurisdiction held in Montreal in November and he provided LoR with this analysis

In November 2010, the Canadian Association against Impunity (CAAI) filed suit against Anvil Mining Limited, a Canadian mining company with links to Australia. The CAAI is an association composed of Congolese victims and families of the massacre from Kilwa, with a board composed of the Canadian Centre for International Justice (CCIJ) and other partner organizations (including RAID and Global Witness). After fruitless attempts to seek justice in the DRC and Australia, the victims are seeking compensation for the losses suffered.

The case involves atrocities against civilians in the town of Kilwa in October 2004 committed by the Congolese Armed Forces after rebels are said to have taken over the town. The town was a key port for Anvil Mining, which was operating a mine near Kilwa. Anvil denies that it had knowledge of, or provided assistance to, the Congolese army in the committing of any human rights violations.

In April 2011, Judge Benoît Emery of the Quebec Superior Court judge rejected the company’s application for dismissal. Anvil based the motion to dismiss on the argument that Quebec has no jurisdiction over the case, mainly on the grounds that the dispute does not relate to any activity of Anvil in Quebec. Anvil is now appealing Judge Emery’s decision and a hearing was held in Montreal at the end of the November. During the hearing, the appellant, Anvil Mining, was the first to plead. Their two lawyers took it in turn to plead two principle arguments.

The Appeal

The first argument rested on an interpretation of section 3148 of the Quebec Civil Code (Ccq). The three important paragraphs of s.3148 are as follows:

3148. In personal actions of a patrimonial nature, a Quebec authority has jurisdiction where
1) the defendant has his domicile or his residence in Quebec;
2) the defendant is a legal person, is not domiciled in Quebec but has an establishment in Quebec, and the dispute relates to its activities in Quebec;
3) a fault was committed in Quebec, damage was suffered in Quebec, an injurious act occurred in Quebec or one of the obligations arising from a contract was to be performed in Quebec; [emphasis added]


Anvil’s interpretative argument, based on paragraph 2 of s.3148 Ccq, may be summarised as follows: Justice Emery, in the judgement subject to appeal, gave unreasonably broad jurisdiction to the courts of Quebec. Anvil had no establishment in the province of Quebec at the time the alleged acts occurred. In light of this, as well as other facts and supporting jurisprudence, the dispute therefore does not relate to any substantial activities of the company in Quebec. Justice Emery’s decision would allow any company with an establishment in Quebec to be sued in the province based on its actions anywhere around the world and on the mere fact that there is a simple link (i.e. an insubstantial connection) between Quebec and the dispute. The effect of this ruling would be to render Quebec an open international jurisdiction.

The second Anvil argument related to the discretion of the Court as exercised by Justice Emery in light of the doctrine of forum non conveniens in s.3135 Ccq;

3135. Even though a Quebec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide.

Anvil’s lawyers also claimed that Justice Emery implicitly – and incorrectly – incorporated s.3136 Ccq (forum of necessity) into the interpretation of s.3135 Ccq, but that he did so without first ensuring that the criteria for the application of s.3136 Ccq were met.

3136. Even though a Quebec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Quebec, where proceedings cannot possibly be instituted outside Quebec or where the institution of such proceedings outside Quebec cannot reasonably be required. [emphasis added]

In sum, Anvil is arguing that there is a lack of connection between Quebec and the dispute. Their lawyers drew on the principle of forum non conveniens to bolster that argument and to suggest the DRC or Australia would be more appropriate fora for the case. Indeed, Anvil’s lawyers argued that even where s.3136 might apply, some substantial connection between Quebec and the dispute must be shown. Justice Emery’s decision is therefore, in Anvil’s view, inconsistent with general principles of law and with the legislator’s will. The impugned decision, they argued, would give an illogical and dangerous scope to the jurisdiction of Quebec.

For the Plaintiffs

CAAI’s lawyer spent a good deal of time explaining, with the support of jurisprudence, that the jurisdiction of Quebec had to be determined as at the time of the hearings, and that therefore the fact that Anvil was not established in Quebec in 2004 is of no importance. The CAAI’s lawyer pleaded that in order to distinguish s.3148 (2) Ccq from s.3148 (1) and (3) Ccq, as recognized principles of legal interpretation would require, the criterion that the “dispute relates to its activities in Quebec” had to be understood largely.

Given Anvil’s arguments anticipating s.3136 Ccq, a logical counter-argument would have been that, the sufficient connection criteria of s.3136 Ccq must be interpreted more flexibly than the connection criteria of s.3148 Ccq because otherwise the principle of forum of necessity of s.3136 Ccq would be deprived of any use, the latter principle being an exceptional measure applicable when direct sufficient connection is lacking (i.e. even though a Quebec authority would normally have no jurisdiction to hear the dispute). In essence, this is an argument that, in this particular case, Quebec courts are in the best position of all possible jurisdictions to bring justice to the victims – an argument deeply linked to the principles underpinning the ‘forum of necessity’ of s.3136 Ccq.

But the CAAI did not bring s.3136 Ccq into the argument. Justice Emery did not base his decision explicitly on s.3136 Ccq and for that reason, it is logical that s.3136 Ccq was not expressly mentioned by CAAI during the appeal. The CAAI lawyers may well have looked into this question and decided for reasons of their own to focus on s.3148 Ccq instead. At the very end of the hearings, when the judge asked CAAI if they were pleading s.3136 Ccq, the lawyer’s answer was yes, implicitly (i.e. not expressly or directly).

A Forum of Necessity

In responding to human rights and humanitarian law violations, s.3136 Ccq would seem to be a powerful instrument for victims of in their pursuit of justice. It would be interesting to know why s.3136 Ccq did not come into argument, except for the brief argument made by Anvil. ‘Forum of necessity’ has been incorporated in the legislation of other provinces of Canada and of many European countries. In Switzerland, where the forum of necessity first appeared as a principle of law, the authors of the provision stated that during the drafting period the main objective of the enactment was to prevent victims from being denied international justice (Frank Vischer, “Drafting National Legislation on Conflict of Laws: The Swiss Experience” (1977) 41 L & Contemp Prob 131).

The principles of fairness and access to justice connected to the doctrine of forum of necessity should prevail. Many courts arond the world have now recognized that fairness and access to justice are guiding principles in the interpretation of the doctrine of forum of necessity (for example Kreuz v Poland, [2001] ECHR No. 28249/95). In Canada, s.3136 Ccq has already been interpreted in many judgments where the courts have decided how to interpret the law’s requirement of a “sufficient connection with Quebec”, or situations which “cannot possibly be instituted” and what is meant by “cannot reasonably be required” outside Quebec (for example, Lamborghini (Canada) Inc. c. Automobili Lamborghini S.P.A., [1997] R.J.Q. 58; Morguard Investments v. De Savoye, [1990] 3 S.C.R. 1077; Hunt v. T&N PLC, [1993] 4 S.C.R. 289). Given the particularities of the case, whether this jurisprudence is applicable or not to the Anvil Mining situation is uncertain, but these judgments are at least evidence that ‘forum of necessity’ could come with legal tests and criteria to ensure that it is viable in a way that does not require Quebec becoming an open international jurisdiction.

Hugo Lagacé LL.B., LL.M. candidate, Université du Québec à Montréal. All views and opinions are the author’s alone.

Image: Jared Rodriguez / truthout