Foreign Classes Bringing Canadian Actions: Lessons From the Case Against Anvil Mining Limited

• Author: Jacob RW Damstra
• Pages: 227-270

227

FOREIGN CLASSES BRINGING

CANADIAN ACTIONS: LESSONS

FROM THE CASE AGAINST ANVIL

MINING LIMITED

Jacob RW Damstra

Abstract: In October 2004, the Armed Forces of the Demo-

cratic Republic of the Congo (known in t he DCR as the Forces

Armées de la République Démocratique du Congo, orFAR DC)

conducted anti-insurgency operations in the town of Kilwa,

Katanga province, DRC. Along the way, with logi stical support

from Anvil Mining Limited, a Canadian-Australian transna-

tional corporation, the FARDC committed countless atroci-

ties against t he innocent civilian towns people in Kilwa. Eight

years later, the Kilwa victims’ long road to justice came to

a disappointing end at the doorstep of the Supreme Court

of Canada. The legal struggle of the proposed Kilwa class

through the Quebec courts raises several interesting ques-

tions about the feasibilit y of a foreign clas s bringing an action

against defendants in Canadian courts. Focusing on Quebec

and Ontario, thi s paper aims to provide some answers to these

important questions. The purposes of class proceedings and

rules regarding class certif‌ication appear supportive of the

notion of a foreign class settling an international dispute

in Canada. Yet, these cases, such as the one against Anvil

Mining Limited, face steep obstacles in the civil and com-

mon law rules of jurisdiction. The Civil Code of Quebec and

the common law “real a nd substantial connection” test do not

absolutely foreclose foreign classes from bringing actions in

Canada, but they do strictly regulate the situations in which

Quebec or Ontario authorit ies can assume jurisd iction to hear

a case. The complementary doctrines of forum non convenie ns

228 The Canadian Class Action Review

and forum of necessity be come especially relevant in the con-

text of foreign class actions for atrocities committed abroad.

This paper is intended as an overview of these important is-

sues.

229

FOREIGN CLASSES BRINGING

CANADIAN ACTIONS: LESSONS

FROM THE CASE AGAINST ANVIL

MINING LIMITED

Jacob RW Damstra*

A. INTRODUCTION

A quick reading of the 1 November 2012 headline, “Supreme Court won’t

hear appeal in Congo massacre case,”1 might not raise many eyebrows.

Taking a second look though, numerous questions surface — especially

when coupled with a corresponding press release from the Canadian

Association Against Impunity (CAAI) titled “No justice in Canada for

Congolese massacre victims as Canada’s Supreme Court dismisses leave

to appea l.”2 Both articles quote Matt Eisenbrant, president of the Canadian

* BA (Hons), Gold Medalist; JD cand idate, University of Western Ont ario, Fac-

ulty of Law, 2015; MA candidate, Un iversity of Western Ontario, Dep artment

of History, 2015. Mr. Damstra is an honou rs JD/MA (History) student in t he

second year of a joint deg ree program at the University of Weste rn Ontario.

This past sum mer he worked as a research ass istant in the Faculty of La w

developing a course on lega l history, while also acting a s the Adjutant and

Operations O ff‌icer of his Canadian Force s Primary Res erves Regiment, the 1st

Hussars. Du ring the coming summer, Mr. Dam stra will be working as a 2L

summer student at L enczner Slaght LLP in Toronto.

Please note that t he present work is intended to sur vey the possibility of

an entirely foreig n class bringing a n action against trans national corporate

defendants in C anadian courts. The d iscussion of the events at Ki lwa is taken

from United Nations a nd non-government organization r eports. The author

does not purpor t to pass judgment on the facts or i ssues of the case, which

have not been proven in a cour t of law.

1 “Supreme Court Won’t Hear Appeal in C ongo Massacre Case” The Canadi an

Press (1 November 2012) online: CBC News w ww.cbc.ca/news/cana da/montreal/

supreme-court-won-t-hear-appeal-in-congo-massacre-case-1.1297191.

2 Canadian A ssociation Against I mpunity, Press Release, “No Justic e in Canada

for Congolese Mass acre Victims as Canad a’s Supreme Court Di smisses Leave

to Appeal” (1 November 2012) online: CCJI

cases/index.php?DOC_INST=14>.

230 The Canadian Class Action Review

Centre for International Justice and member of the CAAI’s board of direc-

tors, stating “[i]t is unacceptable that in 2012, victims are still unable to

hold Canadian companies accountable in Canadian courts, for their al-

leged involvement in serious human right s violations committed abroad.

We look forward to a time when Canadian companies are held respon-

sible for their actions.”3 Unacceptable or disappointing as it might seem,

on its face the outcome is not surprising. After all, some might ask, why

should Canadian courts hear a class action suit wherein not a single

member of the proposed clas s is Canadian, and not a single har m alleged

in the action occurred in Canada?

While the intuitive answer seems to be that Canadian courts shouldn’t

entertain such a class action, a deeper inspection of the case at issue,

Association canadienne contre l’impunité c Anvil Mining Ltd,4 reveals just

how feasible a foreign class in a Canadian action may actu ally be. In this

case (told in greater detail below), the CAAI sought authorization for a

class action in Quebec, on behalf of Congolese victims of war crimes

and human rights violations executed in October 2004, against Anvil

Mining Ltd for its alleged complicity, aiding and abetting the crimes.

Anvil was incorporated pursuant to the Business Corporation Act of the

Northwest Territories of Canada, on 8 January 2004, headquartered in

Perth, Australia. Anvil also leased a small off‌ice in Montreal, beginning

1 June 2005. Anvil’s sole commercial activity was the operation of a cop-

per mine near Dikulushi, roughly 55 kilometres north of Kilwa — the

town in which the massacre occurred — in the Democratic Republic of

the Congo (DRC).5 Anvil responded to CAAI’s action by f‌iling a motion

to dismiss for declinatory exemption and forum non conveniens. In the

f‌irst instance, the Quebec Superior Court rejected Anvil’s request and

assumed jurisdiction to hear the case.6 At the Quebec Court of Appeal,

Forget JCA held that the “legislation does not make it possible to recog-

nize that Quebec has jurisdiction to hear this class action.”7 Ultimately,

the Supreme Court of Canada dismissed without reasons the CAAI’s ap-

plication for leave to appeal,8 and the Kilwa victims’ pursuit of justice

came to an end in Canada.

3 Ibid.

4 2011 QCCS 1966 [Anvil QCCS], rev’d 2012 QCCA 117 [Anvil QCCA], leave to

appeal to SCC refu sed, [2012] SCCA No 128 [Anvil SCCA].

5 Anvil QCCA, ibid at pa ras 16–17.

6 Anvil QCCS, above note 4 at para 41.

7 Anvil QCCA, abovenote 4 at para 104.

8 Anvil SCCA, above note 4 at par a 1.

Volume 9, No 2, February 2014231

1) Questions

While the SCC may have closed the door on the Kilwa action, it seems

to have left many doors open for foreign classes to bring an action in

Canada under certain circumstances. However, the Superior Court and

Court of Appeal judgments in Anvil provide only a piecemeal framework

— several questions remain unanswered. This paper poses these ques-

tions in an attempt to resolve the issues therein and craft a framework

for certifying a foreign class to take private action in Canada for wrongs

committed internationally. First, what rules govern the certif‌ication of

proposed classes in Canada? Specif‌ically, are there any limitations on

(1) the membership of the class due to citizenship/nationality or (2) the

types of harms for which a class can raise an action and seek compensa-

tion? Second, what legal obstacles exist for a foreign class action in the

Canadian lega l system? Looking at the rules governing jur isdiction, what

restrictions exist based on the location of (1) the plaintiff class; (2) the

defendant’s headquarters, property, and operations; and (3) the alleged

wrongdoing or events in dispute? Third, what policy considerations

might concern a court that has been asked to certify a foreign class and

exercise international jurisdiction to hear a proposed class action? Of

particular concern include (1) Canada’s international legal obligations,

(2) Canadian foreign policy, (3) economic and business factors, and (4)

legislative direction (or non-direction) on such matters. Ultim ately, with

a comprehensive framework, which could include a system such as what

boxes must be checked for a foreign class to gain certif‌ication to bring

an action in Canadian courts, the interests of corrective justice, viewed

globally, might be benef‌icially ser ved. Such a possibility would tend to af-

ford avenues for compensation, fairnes s, and access to justice, and create

a strong deterrent factor in the str uggle to end impunity.

B. THE KILWA STORY

The story of the Kilwa class began eight years prior to the ultimate deci-

sion in the action of the Supreme Court of Canada. In the early morning

hours of 14 October 2004, a small group of men attacked and brief‌ly oc-

cupied Kilwa, a mining town of 48,000 inhabitants located at the border

of Zambia, on the Mwero Lake (Pweto territory, High Katanga district,

Katanga Province). The men were a half-dozen in number, according to

witness st atements recorded by the United Nations Mission in the Demo-

cratic Republic of the Congo (MONUC) Special Investigation into the

232 The Canadian Class Action Review

events. They were led by Alain K azadi Makalayi, f rom the town of Pweto,

general-in-chief of the Mouvement Révolutionnaire pour la Liberation de

Katanga (MRLK). The MONUC report describes the details of the inva-

sion at some length.9 According to witness testimony, the initial stages

of the rebellions operations went off w ithout violence. Kazadi recruited

several townspeople, including members of the Kilwa police force; pro-

cured and distr ibuted arms; and publically proclaimed t he independence

of Katanga province. The MRLK was apparently motivated by a desire

to end the corruption of President Kabila and his advisor, Katumba

Mwanke. At a public meeting at the Kilwa market, Kazadi stressed that

“the time for pocketing the money from the mines” was over.10

During the course of the day on 14 October, Kazadi and a few follow-

ers entered a fuel depot operated by Anvil. The rebels assured the em-

ployees that the MRLK had no intention of disrupting the company’s

mining operation. Kazadi insisted that the employees help him make

contact with the “whites” at the company headquarters at Dikulushi,

about 55 kilometres north of Kilwa (referred to as the Dikulushi Mine).

The Anvil employees were uncooperative, refusing to negotiate with or

aid the insurgents. The MRLK forces demanded and obtained some pet-

rol before abandoning their purpose at the depot and returning to the

town.11 Meanwhile, approximately 90 percent of the 48,000 inhabitants

of Kilwa f‌led the town. Unconvinced by the MRLK’s message of libera-

tion and anxious about the impending government response to the rebel

movement, the f‌leeing citizens told MONUC they wanted no part in the

movement. The MRLK did not resist or restrict the exodus.12

On the afternoon of 15 October 200 4, the Armed Forces of the Demo-

cratic Republic of the Congo (FARDC) commenced its assault on Kilwa.

Pre-invasion bombardments destroyed f‌ive or six houses. According to

the 10 November 2004 conf‌idential report of MONUC’s special investiga-

tion in Kilwa, “[t]he 62nd Brigade of Pweto under the comma nd of Colonel

Ilunga Adémars – launched their attack on the town with vehicles pro-

9 United Nations Orga nization Mission in t he Democratic Republic of Congo,

Report on the con clusions of the Special Investigation concer ning allegations of

summary ex ecutions and other human r ights violations perpe trated by the Armed

Forces of the Democratic Rep ublic of Congo (FARDC) in Kilwa (Katanga Province)

on 15 October 2004, MONUC, 2005, at para s 10–23, online: RAID-UK

http://www.raid-uk.org/docs/Anvil_Dikulushi/MONUC_Rpt_%20Eng.pdf

[MONUC].

10Ibid at par as 12–15.

11Ibid at para 14.

12Ibid at para 15.

Volume 9, No 2, February 2014233

vided by (crossed out)/ from the local mining company, Anvil Mining.”13

The main effort of the f‌ighting lasted one or two hours, centered at the

Kilwa marketplace. The FARDC easi ly defeated the ragtag, poorly armed,

and undisciplined rebels, suffering no casualties during the f‌ighting.

Kazadi was wounded during the battle, eventually arrested, and taken

to hospital where he later died. In the following twenty-four hours, the

FARDC conducted house-to-house searches and clearing operations,

during which the mi litary committed numerous human rig hts violation s

and summary executions.14 The MONUC report cites a military source

which stated that “soldiers were allegedly given order before the attack

‘to shoot anything that moved.’”15

Although the number of dead varies by source, the Canadian courts

have accepted into evidence the United Nations’ estimations that roughly

seventy to eighty civi lians were killed in the f‌ight ing.16 The MONUC inves-

tigation concluded that at least twenty-eight of the known de ad, suspect-

ed supporters of the insurgents, were summarily e xecuted by the FARDC.

The report also cites in formation received which cl aims that the military

clandestinely bur ied an unknown number of victims of su mmary execu-

tion killings in a m ass grave at Nsensele.17 FARDC also illegally detained

several prisoners after the f‌ighting. For nearly two weeks, the military

authorities obstructed MONUC’s investigation into the number, identi-

ties, and status of the detainees. At least two individuals, including the

rebellion leader, Kazadi, d ied while under the control of the FARDC mil-

itary forces. The FARDC are also reported to have committed countless

atrocities against the remaining civilian population at Kilwa. During the

chaos of the battle and its aftermath, soldiers were allowed to pillage

the town, raping and torturing innocent non-combatants. Many resi-

dents of the town returned to f‌ind their homes looted, and their posses-

sions stolen or destroyed.

1) The DRC Military Tribunals

Only seven of the hundreds of FARDC soldiers involved were eventually

charged in October 200 6 with committing war crime s pursuant to article

8 of the Rome Statute of the International Cr iminal Court. Under growi ng

international pressure, the accused were tried before the Court Martial

13 Ibid at paras 16–17 [all punctuation and as ides appear in the origi nal report].

14Ibid at p aras 17–19.

15Ibid at para 26.

16Anvil QCCA, ab ove note 4 at para 25

17MONUC, above note 9 at par a 24.

234 The Canadian Class Action Review

of the Province of Katanga.18 As will be discussed further below, three

Anvil Mini ng Congo employees were also cha rged for their complicity in

the alleged war crimes. On 28 June 2007, Colonel Adémars and Captain

Sadiaka were convicted of murder and torture, not war crimes. The re-

maining accu sed, including the Anvil employees, were acquitted for lack

of evidence. The decision was appealed to t he High Military Court of the

DRC, which on 30 October 2008 upheld the acquittals and reduced the

sentences of the two soldiers found guilty at trial — returning them to

service with the army.19 Louise Arbour, then United Nations High Com-

missioner for Human Rights, expressed regret that the military justice

system had so blatantly failed to address the human rights violations

suffered by the Kilwa p eople. In the 2010 UN report on human rights a nd

international law violations committed in the DRC, High Commissioner

Arbour stated:

The judicial decisions made during the Kilwa case are an illustration

of the lack of impartiality and independence within the military jus-

tice system. The Court has clearly demonstrated its bias in favour of

the accused, exonerating Colonel Adémars of most of the murder char-

ges made by the military prosecutor, either against him personally or

against him a s the commander of the perpetrators of these murders. No

reference was made in the judgment to international law as it pertains

to war crimes. Throughout this case, pol itical interference, a lack of co-

operation on the par t of the military authorit ies and many irregula rities

were observe d.20

The absence of local justice in the Kilwa case is unfortunate. It is also a

sad reality in t he DRC. Countless attempt s have been made to rectify thi s

shortcoming in scholarly f‌ields and by practitioners.

The current focus is on neither the crimes of the FARDC nor the

impunity enjoyed by those directly involved. Rather, this paper is con-

cerned with the creative attempts to f‌ind a remedy for the victims: the

class of Kilwa citizens who suffered brutally at the hands of the military.

The DRC military tribunals relieved Anvil Mining Congo of all culpabil-

18Off‌ice of the UN High Com missioner for Human Rights, D EMOCR ATIC

REPUBLIC OF THE CONGO, 1993–2003: Report of the Mapping E xercise docu-

menting the most ser ious violations of human r ights and international hu manitar-

ian law committed within th e territory of the Democrat ic Republic of the Congo

between March 1993 and June 2003, UNOHCHROR, 2010, at para 867 [Mapping

Report].

19Ibid at paras 8 67–68.

20Ibid at para 869.

Volume 9, No 2, February 2014235

ity or complicity in the events. Furthermore, the innocent, civilian vic-

tims of the war cr imes and family members of those t hat had been killed

were identif‌ied as civil parties and denied any compensation in the f‌irst

instance and refused leave to appeal to the High Military Court. It was

quickly evident that t he atrocities suffered would not be compensated by

the FARDC — nor was corrective justice likely in the DRC. The victims

thus looked beyond the immediate wrongdoers to the alleged aider and

abettor of the war crimes, Anvil Mining Limited. They also looked out-

side of domestic jurisdiction to Anvil’s home countries, both Australia

and Canada, as a forum in which to pursue corrective justice.

2) Anvil’s Role

The Kilwa victims never alleged in any forum that Anvil was involved

in the planning or the actual execution of the massacre. However, the

CAAI Motion for Authorization to In stitute a Class Action and to Obtain

the Status of Representative21 (Motion for Authorization) on behalf of

the victims claimed that Anvil was implicated in the commission of the

crimes by virtue of the logistical support and transportation it had pro-

vided to Colonel Adémars and the 62nd Brigade soldiers.

The Dikulushi Mine was Anvil’s only productive asset at the time of

the events, the company’s sole activity, and its primary source of prof‌it.

Extraction and export of the ore from the mine was reliant on secure

access to port installations, which Anvil had constructed at Kilwa. The

executive director of the Dikulushi Mine and person in charge of Anvil’s

operations on site in October 200 4 was Canad ian Pierre Mercier. During

the proceedings before the Katanga Court Marital on 13 October 2006,

Mercier commented on Kilwa’s signif‌icance to the Dikulushi operation.

He also admitted Anvil’s awareness of the uprising in Kilwa after Kazadi

met with Anvil’s employees at the fuel depot. He stated:

Given what this town represents for Anvil Mining, I alternately called

the head of the ANR [Agence Nationale de Renseignements (National In-

telligence Agency)] in Kinshasa and the Comt 6 Rgn Mil (Comd 6 Rgn

Mil) [Commandant de la 6ième région militaire (Commander of the 6th

Military Region)] to ask them if they had information on this situation.

The f‌irst, meaning the head of the ANR, told me that he knew nothing

about it, whereas the se cond, fully informed, recommende d that I evacu-

ate the members of our staff. Therefore, I called Dikulushi to ask them

21Anvil QCCS, abovenote 4 (Motion for Author ization to Institute a Cla ss Ac-

tion and Obtai n the Status of Representat ive [Motion for Authoriz ation]).

236 The Canadian Class Action Review

to describe the security situation there to me. After speaking with the

Comt 6 Rgn Mil on the telephone aga in, a decision was reached to ev acu-

ate the 75 members of our sta ff (Congolese and Expat riates).22

Therefore, Mercier was aware of the uprising and concerned with the ef-

fects it might have on Anvil’s operations at the Dikulushi Mine.

Though it is unclear where the subsequent decisions were taken,

Anvil did not deny providing transportation and logistical support to

Colonol Adémars. The MONUC report detailed:

[The FARDC] used vehicles of the mining company Anvil Mining dur-

ing their operat ion in Kilwa. These vehicles appea r to have been used to

transpor t pillaged goods as well as corp ses — which may have included

victims of su mmary execution — to t he area of Nsensele; there, MONUC

located two shallow graves and one individual grave. Anvil Mining has

conf‌irmed to MONUC that the FARDC did use the company’s vehicles

but Anvil has de nied that the vehicles were used t o transport corpses or

pillaged goods. Anvil Mining has also acknowledged that planes char-

tered by the company to ev acuate its personnel to Lubumb ashi were used

on 14 and 15 October to transpor t approximately 150 soldiers in the a rea

of operation. These planes were also used to transport to Lubumbashi

some of the suspect s arrested by the ar my following its counter-offensive

in Kilwa. MONUC was able to con f‌irm that three dr ivers of the company

Anvil Mining drove the vehicles us ed by the FARDC. MONUC was also

able to conf‌irm th at food was provided to the armed force s in order to —

according to Anv il — prevent the pillage of goods of civi lians. Anvil al so

appears to have acknowledged to have contributed to the payment of a

certain numb er of soldiers.23

The MONUC report also noted that the Commander of the 6th Military

Region thanked Anvil for its logistical support, without which FARDC’s

intervention in Kilwa would not have been possible.24

The report also cites Anvil’s president and CEO, Bill Turner, who, in

an interview w ith the Australian television program, Four Co rners, aired

on 6 June 2005, stated:

“We helped the milit ary to get to Kilwa and then we were gone. Wh atever

they did there, that’s an internal issue.” In other parts of the interview,

22Ibid at paras 2.57–2.61, citing the Mi nutes from the Interrogation conducted at

the Milita ry Court of the Province of K atanga [translation provi ded in original].

23MONUC, above note 9 at para 36.

24Ibid at para 37.

Volume 9, No 2, February 2014237

Mr Turner added: “They requested as sistance from Anvil for tr ansporta-

tion. We provided that transportation so that they could get their sol-

diers down to Kilwa.” To the question of how many vehicles Anvil were

being provided he answered: “What difference does it make how many

vehicles? There are a group of soldier s, and whatever number of vehicles

was necessary to move these guys I guess we sent up there and they

moved them down.”25

Therefore, it was evident that not only was Anvil’s senior management

aware of the company’s involvement with the FARDC in putting down

the MLRK uprising, there was also an indifference regarding the scope

and extent of the assistance provided. Anvil conducted an investigation

of their employees’ conduct and the use of company assets during the

incident. However, the company did not publicize the f‌indings of their

report. MONUC requested access to Anvil’s internal investigative report

concerning the events i n Kilwa. The company denied the request, accord-

ing to MONUC, in apprehension of legal proceedings envisaged against

Anvil.26

3) Proceedings in Australia

Proceedings did in fact commence against Anvil in Australia, where the

company was headquartered. Following the 6 June documentary, the

Australian Feder al Police were pressed to inve stigate Anvil’s involvement

in the crime s at Kilwa and alleged corruption in the Congo.27 When more

details regarding the events became available, the Australian f‌irm Slater

& Gordon Ltd. brief‌ly retained sixty-one victims of the Kilwa as a pro-

posed class in an action against Anvil in negligence before the Supreme

Court of Western Australia in 2007.28 Pre-trial, in response to a request

from Anvil, the judge ordered disclosure of information relating to the

instructions of the victims’ lawyers with regard to cost-related agree-

ments.29 Patricia Grylls, executive director of Rights and Accountability

in Development (RAID), was the representative charged with meeting

the victims in order to obtain their instructions for Slater & Gordon.

According to Grylls’s aff‌idavit before the Australian tribunal, Congolese

authorities impeded her movements and the movements of the Kilwa

25Ibid at para 37, n 5.

26Ibid at para 41.

27Ibid.

28Pierre v Anvil Mining Manageme nt NL, [2008] WASC 30.

29Ibid.

238 The Canadian Class Action Review

victims and she wa s thus unable to obtain the victim s’ statements and in-

structions. Additionally, members of both RAID and the proposed class

received anonymous death threats related to their work on the claim.30

Slater & Gordon withdrew as t he victims’ legal representation in Aust ralia.

Despite efforts made by R AID, the Kilwa victims were unable to f‌ind al-

ternative represent ation in Australia and, ultimately, the claim wa s even-

tually dropped in 2008.

4) The UN DRC Mapping Report

Following the release of t he 2010 UN DRC Mapping Report, the injustice

suffered by the victims of the Kilwa massacre rose to the fore again. As

mentioned, the report was critical of the irregularities in the proceed-

ings before the mil itary tribunal s in the DRC. The report commended the

bravery of some judges of the Congolese mil itary justice system for the sm all

number of decisions related to cr imes under international law. However,

the report qualif‌ied those comments by noting:

Botched and dubious investigations, poorly drafted or inadequately

substantiated court documents, irrational decisions, violations of due

process and var ious instances of interference by t he civilian and military

authorities in the judicial process, are apparent defects that character-

ized some of thes e cases, partic ularly those pert aining to Ankoro, Kahwa

Mandro, Kilwa and Katamisi.31

The report also demurred the ability of the Congolese justice system to

hold private companies accountable for their involvement in violat ions of

human rights and the commission of war crimes. It held:

The Kilwa case demon strated the diff‌iculty in proving the legal respon-

sibility of privat e companies in the perpetr ation of human r ights abuses

and violations of international humanitarian law, even when they are

supplying arms or logistical support to armed groups. This case also

showed that political interference and a lack of impartiality are all the

more striking when economic interests are at stake. In this incident in

2004, at least 73 people were killed apparently by the Congolese army

(FARDC) in Kilwa, a town in Katanga that had fallen into the hands of

a rebel group. An Australian-Canadian mining company was accused

of supplying the army with logistics and transport during its military

operation . . . The case could have set an important precedent in terms

30Pierre v Anvil Mining Manageme nt NL, [2008] WASC 30.

31Mapping Repor t, above note 18 at para 47.

Volume 9, No 2, February 2014239

of corporate accountabi lity. Instead, all the defendant s were acquitted of

the charges rel ating to the events in Kilwa, in a t rial by a military court

that failed to me et international standa rds of fairness.32

CAAI seized on the opportunity provided by renewed international

attention given to the incident to restart proceedings against Anvil.

5) The Action in Quebec

The coalition of human rights NGOs brought together the victims from

Kilwa as a proposed class in its Motion for Authorization to initiate

proceedings before the Quebec Superior Court. In the proposed action

against Anvil, the CAAI described the class as:

All people who lost a member of t heir family, who were victims of abus e,

of pillage of their property or who had to f‌lee the town of Kilwa in

October 2004 follow ing the illegal acts committed by the Armed Forces

of the Democratic Republ ic of Congo.33

The Motion for Authorization alleged that Anvil had violated several

standards of conduct applicable to the Kilwa case. The claim stated that

Anvil acted negligently and imprudently, allowing the harms to the

people of Kilwa to occur.34 Further, Anvil was accused as an accomplice

to crimes against humanity and war crimes under articles 7 and 8 re-

spectively of the Rome Statute of the International Criminal Court —

pursuant to Congolese domestic law.35 Article 25(3)(c) ascribes criminal

liability under the Rome Statute to persons who, “[f]or the purpose of

facilitating the commission of such a crime, aids, abets or otherwise as-

sists in its comm ission or its attempted commission, including provid ing

the means for its commission.”36 The claim also suggested that Anvil

violated the Voluntary Principles on Security and Human Rights to which

the company had assented in September 2004.37

32Ibid at para 774.

33Motion for Authorization, above note 21 at pa ra 1.1.

34Ibid at para 2.157.

35Ibid at para s 2.163–2.167.

36Rome Statute of the Int ernational Criminal Court, 17 July 1998, UN Doc A /

CONF.183/9, online: UN untreaty.un.org/cod /icc/statute/romef ra.htm [Rome

Statute].

37Motion for Authorization, a bove note 21 at paras 2.168–2.179.

240 The Canadian Class Action Review

The merits of the case are not in question here,38 nor indeed were

they even considered by the Superior Court or the Court of Appeal in

Quebec. Rather, the critical questions at issue are: (1) whether such a

foreign class is proscribed from initiating an action in Canada on the

basis of the composition of the class itself or the alleged harms; and (2)

what barriers exist for a foreign class for a proposed action to be heard

in Canadian courts.

C. CLASS ACTIONS IN CANADA

1) Purposes

Conceptualizing the innocent victims at Kilwa as a class in the legal sense

is unique in itself — merciless war crimes are a far stretch from the ty p-

ical complaints of an aggrieved class. As Michael A Eizenga and Emrys

Davis observed: “The class action is linked so strongly with the unique

characteristics of the modern era — mass consumption and mass pro-

duction, large-scale disasters, corporate mismanagement.”39 Products

liability, securities and stock misrepresentation, environmental, wrong-

ful dismissal or discrimination, medical malpractice suits, and mass tort

negligence actions are the more usua l suspects in class proceed ings. This

is not to suggest, however, that categories of class proceedings are or

should be closed.

Indeed, Canadi an law — largely inf‌luenced by developments in Eng-

land and the United State s40 — has recognized the exp anding and critical

role of class actions in t he legal system and for society writ large. In 1982,

the Ontario Law Reform Commission published a Report on Class Ac-

tions41 analyzing trends in English, American, and Ca nadian class action

law. The Commission set out three fundamental purposes underlying

class actions in Canadian law: judicial economy, access to justice, and

behaviour modif‌ication. Furthermore, the Reporton Class Actions con-

38Again, the author of the curr ent work does not intend to portray Anv il Mining

or its subsidia ries as being guilt y or complicit in the Kilwa incident. For a d is-

cussion cha racterizing the act s and alleged crimes of Anv il, see Adam McBeth,

“Crushed by Anv il: A Case Study on Respons ibility for Human Rights in t he

Extractive S ector” (2008) 11 Yale Human Rt s & Dev LJ 127 at 130– 43.

39Michael A Eizenga & Em rys Davis, “A History of Clas s Actions: Modern Les-

sons from Deep Root s” (2011) 7:1 Can Class Act ion Rev 3 at 5.

40Ibid.

41Ontar io Ministry of the Attor ney General, Ontario L aw Reform Commission,

Report on Cla ss Actions, vol 1 (Toronto: Queen’s Printe r, 1982) [Ontario Law

Reform Comm ission].

Volume 9, No 2, February 2014241

cluded by recommending legislative action in the form of a provincial

Class Proceedings Act.42 A decade later, the Ontario legislature eventually

passed the Class Proceedings Act, 1992.43 The Supreme Court of Canada

accepted the three-pronged utility of class actions in the landmark 2001

decision of Western Canadian Shopping Centres Inc v Dutton44 wherein

McLachlin J (as she was then) stated that:

Class actions offer three important advantages over a multiplicity of

individual suits. First, by aggregating similar individual actions, class

actions serve judicial economy by avoiding unnecessary duplication in

fact-f‌inding and legal analysis. The eff‌iciencies thus generated free ju-

dicial resources that can be directed at resolving other conf‌licts, and

can also reduce t he costs of litigation both for plaintiffs (who can share

litigation costs) and for defenda nts (who need litigate t he disputed issue

only once, rather th an numerous times.

Second, by allowing f‌ixed litigation costs to be divided over a large

number of plaintiffs, class actions improve access to justice by making

economical the pros ecution of claims that would othe rwise be too costly

to prosecute individually. Without class actions, the doors of justice re-

main closed to s ome plaintiffs; however strong thei r legal claims. Sharin g

costs ensure s that injuries are not left unre medied.

Third, class actions serve eff‌iciency and justice by ensuring that

actual and potential wrongdoers do not ignore their obligations to the

public. Without class actions, those who cause w idespread but individ-

ually minimal harm might not take into account the full costs of their

conduct, because for any one pla intiff the expe nse of bringing suit would

far exceed the likely recovery. Cost-sharing decreases the expense of

pursuing legal re course and accordingly deters pote ntial defendants who

might otherwise assume that minor wrongs would not result in litiga-

tion.45

In considering the certif‌ication of new and different types of classes,

Canadian cour ts have dutifully referred to the pri ncipal purposes for class

actions set out in Dutton.

The f‌irst issue, therefore, is to deter mine whether the proposed Kilwa

class f‌its the purposes of judicial economy, access to justice, and behav-

iour modif‌ication. Applying McLachlin CJ’s reasoning, certifying the

42Ibid at 19 8.

43SO 1992, c 6 [CPA]. See Eizenga & Dav is, above note 39 at 21.

44[2001] 2 SCR 534 [Dutton].

45Ibid at paras 27–29.

242 The Canadian Class Action Review

Kilwa victims as a class clearly satisf‌ies each of these purposes. First,

judicial economy is served by reducing the need for travel related ex-

penses for plaintiffs and defendants, limiting duplication in fact-f‌inding

and analysis, and reducing costs of litigation. This consider ation becomes

pertinent again in the jurisdictional issues. In assessing the appropriate-

ness of a court to assume jurisdiction in a foreign matter, the location

of the parties is particularly relevant. In that discussion, it is far more

feasible to certify a foreign class and bring a representative plaintiff be-

fore a Canadian court than to deal with the logistical nightmare of ar-

ranging travel for dozens, if not hundreds, of potential plaintiffs who

have suffered the same harms. Furthermore, by dealing with the group

as one class, the Quebec courts were able to engage in a single delibera-

tion of jurisdiction, rather than multiple individual assessments based

on claims of each aggrieved plaintiff bringing an individual action.

Meanwhile, minimizing travel and reducing litigation costs is cer-

tainly a par amount access to justice concern for the class of v ictims resid-

ing in a foreign country. The doors of justice in Can ada, as McLachlin CJ

stated, would have remained entirely closed to the Kilwa victims if not

for their ability to ama lgamate as a class in order to retain repres entation

through the CAAI in Quebec. Most, if not all of the Kilwa victims, are

impoverished. They are represented by a coalition of not-for-prof‌it, hu-

man rights NGOs. Setting aside jurisdictional hurdles for now, it is clear

that cost sharing would be vital to the prosecution of the claims brought

against Anvil. Presupposing a slightly modif‌ied set of facts that might

allow Quebec courts to take jurisdiction in a case like Anvil, the Kilwa

class would be able to afford a fair opportunity to seek a remedy for their

injurie s.

Allowing a foreign class to bring an action against a multinational

corporat ion for wrongs commit ted internation ally would also potentially

contribute to general and specif‌ic deterrence. Holding companies such

as Anvil accountable for their actions, regardless of where they are com-

mitted, would ensure th at those companie s do not ignore their corporate

social responsibility. Amalgamating numerous or widespread claims of

the same harms caused by the same transnational company would lead

to a more full-cost accounting decision-making processes. One import-

ant consideration not to be overlooked though is the possibility that the

behaviour modifying effect may be to cause transnational companies to

remove their operations from Canadian jurisdictions. This effect would

be detrimental in at least two signif‌icant ways. First, the obvious result

would be lost jobs and decreased potent ial tax revenues in Cana da. Mean-

Volume 9, No 2, February 2014243

while, such companies moving their operations would likely relocate in

jurisdiction s with fewer regulations and legal controls over corporat ions,

which might encourage companies to engage in more bad behaviour.

It is reasonably safe to assume that the Anvil case satisf‌ies the pur-

poses of class actions in Canada. Judicial economy, access to justice, and

behaviour modif‌ication would all be affected by allowing the Kilwa vic-

tims to pursue t heir claim as a class in Ca nadian courts. However, simply

having sati sf‌ied the purposes underlyi ng the certif‌ication of a class act ion

in Canada, a foreign class — indeed, any class — is not guaranteed to

receive certif‌ication. Certain criteria, as set out in the various provincial

rules of civil procedure, specify when and in what circumstances a pro-

posed class would be certif‌ied. The wording may vary from province to

province, but the checklist remains substantially the same. Additionally,

the Supreme Court of Canada has synthesized the various criteria and

provided guidance for court s in the absence of legislative frameworks for

class certif‌ication.

2) Criteria for Certifying Class Proceedings

It was also in Dutton t hat the SCC set out four necessary criteria to ce rtify

a class action: (1) the class must be capable of a clear de f‌inition; (2) there

must be issues of law and fact common to all class members; (3) success

for one class member would necessarily mean success for all members;

and (4) the proposed cla ss representative would adequately represent the

class.46 The Court established these criteria primarily in order to facili-

tate and standardize the certif‌ication of class actions in Canada when

only about half of its jurisdictions had legislative direction.

An ancillary effect of setting out the above four criteria is the open-

ness or expansiveness that the general framework allows. Where a prov-

incial statute, such as the Ontario CPA or the Code of Civil Procedure in

Quebec (discussed below), may be conceived narrowly, within the contex t

of the statute itself, the Supreme Court of Canada approach has been to

emphasize generous interpretations. Along with Dutton, in the compan-

ion decisions of Hollick v Toronto (City)47 and Rumley v British Columbia,48

the Court endorsed a “f‌lexible and expansive approach to class action

procedure even in the absence of a statutory framework.”49 Such a liberal

46Ibid at paras 38 –41.

47[2001] 3 SCR 158 [Hollick].

48[2001] 3 SCR 182 [Rumley].

49Eizenga & Davis, above note 39 at 23.

244 The Canadian Class Action Review

attitude looks encouraging for new and unique classes to pursue col-

lective justice in the Canadian judicial system. On its face, a “f‌lexible

and expansive approach” seems to support a class of victims of terrible

war crimes in an action for compensation of their suffering. In Canadian

law, the class action has long stood as a f‌irst-response avenue through

which unincorporated groups without a legislative remedy can pursue

justice.50 This is especially the case where comprehensive regulatory

constructs h ave not yet developed in response to t he numerosity of case s

or changing societal needs. Fifteen years into the mandate of the Inter-

national Criminal Court under the Rome Statute,51 public international

law concepts of universal jurisdiction and extraterritoriality have begun

to take root.52 However, as John Burchill observed, legal persons are not

included in the Rome Statute,53 thereby “effectively leaving it to domestic

courts to prosecute corporations.”54 It may yet be the case that private

prosecution of international wrongdoers grows in frequency and quan-

tity to match the fu ndamental societal desire for correct ive justice, which

is unfortunately under serviced by the expan sion of public prosecution of

international crimes. This remains to be seen.

In any case, every province except for Prince Edward Island has now

passed a general applicat ion class proceedings statute. Though the wording

varies slightly by jurisdiction, the generic criteria enunciated by McLach-

lin CJ in Dutton for certifying a class are standard across the country.

Section 5 of Ontario’s CPA lays out the following guidelines for certif‌ica-

tion of a class:

The court shall certify a class proceeding on a motion under section 2,

3 or 4 if,

(a) the ple adings or the notice of application dis closes a cause of ac-

tion;

50John A Kazanjian, “Clas s Actions in Canada” (1973) 11 Osgoode Hall LJ 397 at

401.

51Rome Statute, above note 36

52See, for example, R c Munyaneza, 2009 QCCS 2 201 (Crim Div).

53Rome Statute, above note 36. Article 25(1) states “[t]he Court shall have

jurisdict ion over natural persons pu rsuant to this Statute.” Domestic c ourts

are not barred f rom taking jurisd iction over corporate offenders for violat ions

of internation al human rights law (ie war cr imes, genocide, crimes aga inst

humanit y, terrori sm, etc) or complicity therein.

54John Burchill, “Out of the Heart of D arkness: A New Regime for Controll ing

Resource Ext raction in the Congo” (2010) 10 Asper Rev of Int’l Bus a nd Trade

Law 99 at 131.

Volume 9, No 2, February 2014245

(b) there i s an identif‌iable class of t wo or more persons that would be

represented by the r epresentative plaintiff or de fendant;

(c) the claims or defences of t he class members ra ise common issues;

(d) a class proceeding would be the preferable procedure for the

resolution of the common is sues; and

(e) the re is a representative plainti ff or defendant who,

(i) would fairly and adequately represent the interests of the

class,

(ii) has produced a plan for the pro ceeding that sets out a work-

able method of advancing the proceeding on behalf of the

class and of noti fying class member s of the proceeding, and

(iii) does not have, on the common i ssues for the class, an inter-

est in conf‌lict w ith the interests of other cla ss members.55

The CPA place s no limitations on the types of cl asses a court may certif y.

Rather, the only qualif‌ications to the general guidelines for certif‌ication

is that “common issues” for the purpose of the Act means “(a) common

but not necessarily identic al issues of fact, or (b) common but not neces-

sarily identical issues of law that ar ise from common but not necessarily

identical facts.”56 In Cloud v Attorney General (Ontario), a class action

against the government for sexual abuses suffered at Aboriginal residen-

tial schools, the Court of Appeal held that the common issues require-

ment in the CPA is a “low bar.”57 In the Kilwa case, the victim-claimants

almost certainly raise common issues by the CPA’s def‌inition and the

“low-bar” threshold set out by the Ontario Court of Appeal. Moreover,

the certif‌ication stage is not meant to be a test of the merits of the pro-

posed action.58

Queb ec’s Code of Civil Procedure59(CCP)provides the earliest ex-

ample of Canadian legislation in regard to class actions. Passed in 1978,

Book IX of the CCP governs the certif‌ication of class actions in Quebec.

Specif‌ically, article 1003 reads:

The court authorizes the bringing of the class action and ascribes the

status of repres entative to the member it designate s if of opinion that:

55CPA, above note 43.

56Ibid, s 1.

57(2004), 73 OR (3d) 401, 247 DLR (4th) 667 at para 52.

58CPA, above note 43, s 5(5) states “An order certi fying a class procee ding is not

a determinat ion of the merits of the proceedi ng”; see also Ca puto v Imperial

Tobacco Ltd (1997), 34 OR (3d) 314 (Gen Div), at p 320 (“any inquiry into th e

merits of the act ion will not be relevant on a motion for cert if‌ication”).

59Code of Civil Procedure [CCP] .

246 The Canadian Class Action Review

(a) the recourses of the members raise identical, similar or related

questions of law or fac t;

(b) the facts a lleged seem to justify the conclusion s sought;

(c) the compo sition of the group makes the application of article 59

or 67 diff‌icult or impract icable; and

(d) the member to whom the court intends to ascribe the status

of representative is in a position to represent the members ad-

equately.

As with the Ontario CPA, the Quebec CCP does not expressly bar the

certif‌ication of a class on the grounds of the national or jurisdictional

composition of the group or the residence of its members. There are,

therefore, no legislated or common-law restrictions to certifying a class

simply due to the fact that its membership is composed, in whole or in

part, of foreign nationals, living outside of the Canadian jurisdiction

where the proposed action will be heard.

In the Kilwa case then, applying the more general criteria set out

by the SCC in Dutton, the question is whether the victims f‌it within

the f‌lexible and expansive def‌inition of a certif‌iable class. In Hollick, the

SCC stated: “[T]he certif‌ication stage focuses on the form of the action.

The question at the certif‌ication stage is not whether the claim is likely

to succeed, but whether the suit is appropriately prosecuted as a class

action.”60 These questions a re surely answered in the aff‌ir mative. First, the

class is capable of a clear def‌inition. Hollick held that “It falls to the puta-

tive representative to show that the class is def‌ined suff‌iciently narrowly.

The requirement is not an onerous one. The representative need not show

that everyone in the class sh ares the same interest in the re solution of the

asserted common issue. There must be some showing, however, that the

class is not unnecessarily broa d.”61 The proposed class def‌ines the group

in terms of speci f‌ic types of harms suffered (murder of a family member,

abuse, pillaged propert y, and forced exodus); the time and location where

the injuries were incurred (October 2004 in the town of Kilwa, DRC);

and the alleged causer-in-fact of the suffering (the war crimes commit-

ted by the FARDC). Given the alleged harms, there would be suff‌icient

evidence to show that the class is not unnecessar ily broad.

Second, it necessarily follows this def‌inition that the relevant issues

of law and fact are common to all members of the proposed class. The

circumstances giving rise to the victims’ losses, as described above, are

60Hollick, above note 47 at para 16 [emphasis in or iginal].

61Ibid at para s 20–21 [emphasis in origina l].

Volume 9, No 2, February 2014247

f‌ixed in time — they would not var y from member to member. Moreover,

despite the various injuries of which there were complaints, the issues

of law regarding Anvil’s alleged involvement in the perpetration of the

war crimes by FARDC would remai n similar. Third, success for one class

member in a claim al leging Anvil’s complicity in the events would neces-

sarily mean success for all members. Therefore, if any one of the pro-

posed class members were to receive corrective justice on thes e identical

questions of fact and similar issues of law, the entire class would inevit-

ably be entitled to the same corrective justice.

Fourth, the proposed class representative would adequately repre-

sent the class. CAAI named Adèle Mwayuma as the designated member

to represent the class. Ms. Mwayuma lost two of her sons, Ulimwengu

Lukumani and Ulimwengu Nombele, who were summarily executed by

FARDC soldiers. Additionally, all of her family’s property was pillaged

during the events in Kilwa in October 2004.62 Ms. Mwayuma was forty-

seven in October 2004 and was otherwise unremarkable in comparison

to the other members of the class. Her losses — the assassination of two

sons, forced exodus, and the loss of her family property — are repre-

sentative of the losses suffered by the remainder of the class. Other

considerat ions as to whether Ms. Mwayuma is an appropri ate represent-

ative would include her ability to fulf‌ill the various duties of a repre-

sentative plaintiff in the action. Such duties would include, but are not

limited to: instructing class counsel, detailing the factual basis of the

claim, swear ing an aff‌idavit setting out facts relevant to cer tif‌ication, be-

ing cross-examined on the aff‌idavit, and participating in mediation or

trial proceedings. No issue was raised in regard to Ms. Mwayuma’s cap-

acity to adequately fulf‌ill these duties and represent the common inter-

ests of the class. It is reasonable to assume t hat the CAAI designated Ms.

Mwayuma as the proposed representative conf‌ident in her literacy and

communication skills necessary to discharge these obligations.

Ultimately, the certif‌ication of a proposed class will depend on the

court’s discretion as to the preferability of a class proceedi ng with regard

to these factors (or the statutorily mandated criteria depending on the

province), taking into account the general purposes laid out in Dutton.

As mentioned, nothing in the statutory language or common law guide-

lines to certifying class actions expressly restricts foreign classes from

bringing an action in Canada. In fact, the broad and sweeping conse-

quences of globalizat ion have brought recognition to the fact t hat foreign

62Motion for Authorization, ab ove note 21 at paras 2.32–2.33.

248 The Canadian Class Action Review

members to class act ions initiated before Canadian cour ts will inevitably

result. In 2007, Warren Winkler CJO gave a talk at an Oxford University

international conference on the Globalization of Class Actions.63 In his

remarks, Wink ler CJO identif‌ied four issues in multi-jurisdictional class

actions with specif‌ic reference to a national plaintiff class across prov-

incial and territorial borders within Canada. However, his comments

are presumably not less true in regard to an international class on non-

residents:

The Class Proceedings Act of Ontario does not speak to the issue of

whether a plainti ff class can include non-resident s of Ontario. The Que-

bec Act is also silent on the issue of including non-residents as class

members. In contrast, the class proceedings legislation of the six other

provinces specif‌ically contemplates the inclusion of non-resident class

members. Five of these provinces allow for non-resident class members

to opt in to a class proceeding commenced in another province. Only

Manitoba allows for certif‌ication of non-resident class members on an

opt-out basis.64

Citing several Ontario trial court certif‌ications of class actions con-

taining non-resident membership, Winkler CJO identif‌ied a limiting

requirement of a “real and substantial connection between the subject

matter of the action and Ontario.” Therefore, even in cases where material

facts that form the basis of non-resident class members’ claims occur

entirely outside of Ontar io, provided there is a “rea l and substantial con-

nection,” the Ontario court will apply the procedural law set out in the

CPA.65

Chief Justice Winkler a lso contemplated the recognition and enforce-

ment of class action judgments from other jurisdictions — indeed, from

63Chief Justice of Ontar io Warren Wi nkler, “Representation & Conf‌lict s of

Interests in C lass Actions and Other Group Act ions” (Remarks delivered at the

Globalizat ion of Class Actions Intern ational Conference, Oxford Univers ity,

England, 12–14 December 20 07), online: Onta rio Court of Appeal

www.ontario courts.ca/coa/en /ps/speeches/global .htm.

64Ibid.

65Ibid, citing Na ntais v Telectronics Proprietary (Canada) Ltd (1995), 25 OR (3d)

331 (Gen Div), leave to appeal to Div isional Court refus ed; Carom v Bre-X

Minera ls Ltd (1999), 43 OR (3d) 441 (Ont Ct (Gen Div)); Webb v K-Mart Canada

Ltd (1999), 45 OR (3d) 389 (SCJ), Brockenshire J; Wilson v Servier (2002), 59

OR (3d) 656 (SCJ), Cumming J; McCutcheon v The Cash Store Inc, [2006] OJ No

1860 (SCJ), Cullity J; see also Harringt on v Dow Corning Corp (1997), 29 BCLR

(3d) 88 (SC).

Volume 9, No 2, February 2014249

other states. In Currie v McDonald’s Restaurants of Canada Ltd,66 the On-

tario Court of Appea l held that it would enforce foreign class action judg-

ments contingent on three criteria:

(i) there is a rea l and substantial connect ion linking the cause of action

to the foreign juri sdiction;

(ii) the rights of non-re sident class members are ade quately represented;

and

(iii) non-resident class members are accorded procedural fairness, in-

cluding adequate not ice.

In such circumst ances, failure of the non-resident class member to opt out

of the action may, in the words of the court, “be regarded as a form of pas-

sive attornment suff‌icient to support the ju risdiction of the foreign court.”67

In that case, the Court considered whether the order of an Illinois court

approving a class action settlement between American and international

customers and McDonald’s Restaurant should preclude a proposed class

action in Ontario and be given binding effect. The Court found that the

Illinois judgment fai led to meet the third requirement of adequate notice

to non-resident class members. The upshot, however, is the willingness

of Ontario and other Canadian courts to entertain foreign class actions

and give effect to foreign class action judgments in Canada.

The Kilwa class i s also important in identif ying a new type of problem

— transnational corporations’ potential impunity for their involvement

in war crimes, crimes against humanity, and other atrocious actions or

negligence tantamount to complicity. While the Supreme Court of Ca nada

recognized that “[t]he rise of mass production, the diversif‌ication of cor-

porate ownership, the advent of the mega-corp oration, and the recognition

of environ mental wrongs”68 were crit ical developments which made class

action proceedings preferable in some cases, the Court has been silent

on the issue of civil compensation for harms created by a corporation’s

involvement in crimes under inter national law. Ultimately though, as the

Court stated in Hollick, “[t]he question of whether an action should be

permitted to be prosecuted as a class action is necessarily one that turns

on the facts of the case.”69 In Dutton, the Court explained this by way of

example:

66(2005), 74 OR (3d) 321.

67Ibid at para 30.

68Dutton, above note 44 at para 26.

69Hollick, above note 47 at para 37.

250 The Canadian Class Action Review

A faulty product may be sold to numerous consumers. Corporate

mismanagement may bring loss to a large number of shareholders.

Discriminatory policies may affect entire categories of employees. En-

vironmental pollution may have consequences for citizens all over the

country. Conf‌licts like these pit a large group of complainants against

the alleged wrongdoe r. Sometimes, the complainant s are identically situ-

ated vis-à-v is the defendants. In other c ases, an importa nt aspect of their

claim is common to a ll complainants. The class act ion offers a means of

eff‌iciently resolv ing such disputes in a ma nner that is fair to all p arties.70

Although the Court make s no reference to complicity in ma ss atrocity or

facilitation of war crimes, clearly such a case is analogous — there is a

large group of identically situated complainants, sharing common issues

pitted against an alleged wrongdoer. It is not unreasonable to suggest

then, that the class action would similarly offer an eff‌icient means of

resolution in such a dispute.

In Dutton, Hollick, and Rumley, the deciding issues were “whether

there are questions common to the class” and “whether a class proceed-

ing would be the preferable procedure for the fair and ef f‌icient resolution

of the common issues.”71 The requirement of commonality as between

the members of the Kilwa class would be satisf‌ied applying the Court’s

logic in Rumley.72 In the Kilwa case, all class members share an inter-

est in the question of whether Anvil was complicit in the FARDC’s war

crimes and other atrocities. On the claim of negligently aiding and abet-

ting for the purpose of f acilitating the commission of the cr imes, no class

member can prevail w ithout showing a duty and bre ach. Resolving those

issues, as was the case in Dutton, is “necessary to the resolution of each

class member’s claim.”73

The question of preferability then becomes predominant in consid-

ering whether a Kilwa-t ype class should be certif‌ied in a n action such as

the one proposed against Anvil. It is clear that in the absence of legisla-

tive guidance,74 the inquiry should be conducted with reference to the

70Dutton, above note 44 at par a 26.

71Rumley, above note 48 at para 26.

72 Ibid at para 27 citing Dutton, above note 44 at pa ra 39.

73 Dutton, above note 44 at para 39.

74See, for exam ple, Class Proceedings Act, RSBC 1996, c 50 where the Brit ish

Columbia legisl ature has provided expre ss guidance as to how a court shou ld

approach the preferabi lity question found in s 4(1)(d). Section 4(2) states: In

determini ng whether a class proceedi ng would be the preferable procedure

for the fair and ef f‌icient resolution of the common issue s, the court must

consider all rele vant matters including the follow ing: (a) whether questions of

Volume 9, No 2, February 2014251

three advantages of class proceedings identif‌ied by the Court: judicial

economy, access to justice, and behaviour modif‌ic ation. In Hollick, where

the Court was inter preting the Ontario CPA,McLachlin CJ disc usses this

analysis in terms of two questions: f‌irst, “whether or not the class pro-

ceeding [would be] a fair, eff‌icient and manageable method of advancing

the claim,” and second, whether the class proceedings would be prefer-

able “in the sense of preferable to other procedure s.”75 The Court held that

“preferable” should receive a broad understanding, and adopted a “prac-

tical cost-benef‌it approach to this procedural issue.”76 What this means

then, is a proposed class representative must “demonstrate that, given

all of the circumstances of the particular claim, [a class action] would be

preferable to other methods of resolving these claims and, in particular,

that it would be preferable to the use of individual proceedings.”77

Ultimately, the determination of commonality and preferability will

be made on the particular fact of each individual case. In the circum-

stances of the Kilwa massacre and the proposed action against Anvil,

both of these critical requirements, prima facie, seem to be met on the

criteria laid out in legislation and by the common law. However, the

courts failed to reach even the certif‌ication stage in that case. CAAI and

the Kilwa victi ms faced yet another preliminar y hurdle before they could

have their case he ard. The jurisdictional obstacle they faced, t urned out,

on the facts of Anvil, to be an insurmountable one for the proposed class

action. Thus, even if the action against Anvil satisf‌ied the purposes of

class proceedi ngs, and the proposed class met the statutory a nd common

law criteria for certif‌ication, despite the absence of any express restric-

tions on foreign classes or claims for compensation after mass violence,

the fatal element in the act ion lies in the inherent limitations of t he juris-

diction of Canadian courts.

fact or law common to the me mbers of the class predomi nate over any ques-

tions affect ing only individual membe rs; (b) whether a signif‌icant number

of the members of th e class have a valid intere st in individually control ling

the prosecution of s eparate actions; (c) whether the class procee ding would

involve claims t hat are or have been the subject of any ot her proceedings; (d)

whether other mea ns of resolving the clai ms are less practical or le ss eff‌icient;

(e) whether the administ ration of the class proceed ing would create greater

diff‌icultie s than those likely to b e experienced if relief wer e sought by other

means.

75Hollick, above note 47 at para 28.

76Ibid at para 29, citi ng WK Branch, Class Action s in Canada (Vanc ouver : West-

ern Legal P ublications, 1996) at para 4.690.

77Ibid at para 30, citin g MG Cochrane, Class Actions: A Guid e to the Class Pro-

ceedings Act, 1992 (Aurora, ON: Canada Law B ook, 1993) at p 27.

252 The Canadian Class Action Review

D. OBSTACLES TO FOREIGN CLASSES

Shortly after CAAI f‌iled the Motion for Authorization to Initiate a Class

Action in the case, attorneys for Anvil Mining Ltd capitalized on juris-

dictional barrier facing the Kilwa victims. In its Motion for Declinatory

Exemption,78 the respondent characterized CAAI’s motion as: “(i) on be-

half of foreign plaint iffs, (ii) against a foreign company that had no estab-

lishment in Quebec at the time of the events in question, (iii) based on

allege defaults that were comm itted or acts that occurred exclusively out-

side of Quebec, (iv) for damages which were not suffered in Quebec.”79

In framing the action as such, Anvil set out a signif‌icant challenge for

the Kilwa class to overcome in order to receive certif‌ication as a class

and have its case heard in the Quebec Superior Court. Anvil’s pleading

carried two alternatives by which it asked the court to dismiss the peti-

tioner’s Motion for Authorization. First, Anvil submitted that the Que-

bec Superior Court did not have jurisdiction over the dispute. Second,

in the alternative, if the court did f‌ind that the dispute was within its

jurisdiction, Anvil submitted that the action should be dismissed on the

doctrine of forum n on conveniens, stating that the Quebec Superior Court

was not the proper forum to hear the dispute.80 In addition, the Motion

for Declinatory Exemption submitted that article 3136 of the Civil Code

of Quebec (CCQ), the doctrine of forum of necessity, should not apply.

The Quebec Superior Court assumed jurisdiction in the case under

article 3148(2) CCQ, and declined to apply the doctrine of forum non

conveniens found in article 3135 CCQ. Given these decisions, Emery J

found it unnecessar y to comment on the forum of necessity doctrine laid

out in article 3136 CCQ.81 Anvil appealed this decision to the Quebec

Court of Appeal, submitting that Emery J erred in his conclusion that

Quebec authorities had jur isdiction in the case; or if t he Quebec Superior

Court did have jurisdiction pursuant to 3148(2) CCQ, the judge erred by

not applying 3135 CCQ and declining jurisdiction on a theory of non

conveniens. In the Court of Appeal’s reasons for judgment, Forget J held

that “3148(2) CCQ does not make it possible to recognize the jurisdic-

tion of the Quebec authorities in the case in question.”82 In accordance

78Anvil QCCS, above note 4 (Motion by R espondent to Dismiss for Dec linatory

Exception and to Di smiss on the Ground of Forum Non Convenien s [Motion to

Dismiss]).

79Motion to Dismiss, ibid at para 1.

80Ibid.

81Anvil QCCS ,above note 4 at para 40.

82Anvil QCCA, above note 4 at pa ra 94.

Volume 9, No 2, February 2014253

with that holding, Forget J found it unnecess ary to address the forum non

conveniens matter, but held that the forum of necessity would not apply

on the facts of the cas e at bar.83 Ultimately, the Supreme Court of Canada

dismissed the CAAI’s appeal without reasons.

Despite the differing approaches and opposite outcomes reached at

the Superior Court and Court of Appeal in Quebec with regard to the

Anvil case, t he decisions raise interesting que stions. Both judgments out-

line key provisions in the CCQ and important Court of Appeal and SCC

interpretations a s to when Quebec courts are authorized to take jur isdic-

tion. The judgments also distinctly raise the application of articles 3135

and 3136 CCQ on the forum non conveniens and the forum of necessity

respectively. Collectively, the decisions in Anvil can give some guidance

as to when Quebec courts will — or will not (as in Anvil) — have the

authority to assume jurisdiction in various circumstances. This section

will look to answer t he question of jurisdiction to hear proposed cl ass ac-

tions f‌irst in Quebec, then also in common law jurisdictions in Canada,

with reference primarily to Ontario. Canada is also home to statutory

regimes for taki ng jurisdiction; such models will not be d iscussed here.84

1) International Jurisdiction of Quebec Authorities

Book Ten of Quebec’s civil code sets out guidance for Quebec authoritie s

on private international law.85 Specif‌ically, provisions under Title Three

(articles 3134–3154) deal with the international jurisdiction of Quebec

authorities. That is, when Quebec courts inherently have, can assume,

or can decline, jurisdiction in certain cases. The Supreme Court of Can-

ada has de scribed the purpose of these r ules as ensuring compliance with

the general principle “that there be a real and substantial connection

between the Quebec court and the dispute.”86 The language of “real and

substantial connection” is not found in the CCQ, but is in fact an import

from the common law guidelines on taking jurisdiction. However, in

83Ibid at para 103.

84See, for example, Court Jurisdiction an d Proceedings Transfer Act, SBC 2003, c

28; Court Jurisd iction and Proceedings Transfer Act, SNS 2003 (2d Sess), c 2. For

analysi s, see: V Black, SGA Pitel, & M Sobkin, Sta tutory Jurisdiction: An Analy-

sis of the Court Jurisd iction and Proceedings Transfer Act (Toronto: Carswell

2012); Stephen GA Pitel, “The Canadian Cod if‌ication of Forum Non Conveni-

ens” (2011) 7:2 J P Int’l L 251.

85Civil Code of Quebec [CCQ].

86Canada Post Corp v Lépin e, 2009 SCC 16, [2009] 1 SCR 549 at par a 19, citing

Spar Aerospace Ltd v Amer ican Mobile Satellite Corp, 2002 SCC 78, [2002]

4 SCR 205 at paras 55–56 [Spar Aerospace].

254 The Canadian Class Action Review

Spar Aerospace, Lebel J rejected suggestions that a plaintiff must prove a

real and substantial connection in addition to the cr iteria in the relevant

articles of the CCQ. Rather, Lebel J stated that:

[l]ooking at the wording of art. 3148 itself, it is arguable that the notion

of a “real and substantial connection” is already subsumed under the

provisions of art. 3148(3), given that each of the grounds listed (fault,

injurious act, damage, contract) seems to be an example of a “real and

substantial connection” between the province of Quebec and the action

. . . from my examination of the system of rules found in Book Ten, it

seems that the “real and substantial connection” criterion is captured

in other provisions, to safeguard against the improper assumption of

jurisdiction.87

In Spar Aerospace, Lebel J continued to recognize that the doctrine of

forum non conveniens as codif‌ied in article 3135 serves as an important

counterweight against too categorically taking jurisdiction where there

may not be a real and substantial connection.88

Article 3134, which states “the Québec authorities have jurisdiction

when the defendant is domiciled in Q uébec” is unproblematic.89 In terms

of a corporation, article 307 CCQ states: “[T]he domicile of a legal person

is at the place and address of its head off‌ice.”90 Anvil was incorporated

in the Northwest Territories and listed on the Toronto Stock Exchange,

yet it was never disputed in the case that the company’s head off‌ice was

in Perth, Austral ia. Thus, it was not domiciled in Quebec, or anywhere in

Canada for that matter, and article 3134 was inapplicable.91 Were Anvil’s

headquarters located in Quebec at the time of the massacre in Kilwa, the

victims would almost certainly have recourse for justice in the Quebec

courts, subject to a forum non conveniens consideration.

Under article 3148, in regard to personal actions of a patrimon-

ial nature, the authority to take jurisdiction is less straightforward. The

article lists f‌ive grounds under which Quebec authorities could assume

jurisdiction in such actions:

1) the defendant ha s his domicile or residence in Québec;

87Spar Aerospace, above note 86 at paras 56–57.

88Ibid at para 57.

89CCQ, above note 85, art 3134.

90Ibid, art 307.

91Anvil QCCA, ab ove note 4 at para 9; Anvil QCCS, above note 4 at para 13.

Volume 9, No 2, February 2014255

2) 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;

3) a fault was committed in Québec, damage was suffered in Québec,

an injurious act occ urred in Québec or one of the obligations a rising

from a contract was to b e performed in Québec;

4) the parties have by agreement submitted to it all existing or future

disputes bet ween themselves aris ing out of a specif‌ied legal relation-

ship;

5) the defendant submit s to its jurisdiction.

However, a Québec authority has no jurisdiction where the parties,

by agreement, have chosen to submit all existing or future disputes be-

tween themselves relating to a specif‌ied legal relationship to a foreign

authority or to an arbitrator, unless the defendant submits to the juris-

diction of the Québec aut hority.92

The f‌irst connecting factor is practically identical to article 3134, but the

restatement emphasizes the importance of a “real and substantial con-

nection” between the dispute, the par ties, and the Quebec courts. Again,

this factor was not contested in Anvil.

The fourth and f‌ifth connecting factors are also unlikely to be rel-

evant to the types of disputes in question here. However, in the case

that they would ari se, the Quebec authority’s jurisdiction over the m atter

would presumably be uncontested. Where a defendant submits to the

jurisdiction of a Quebec court or has previously agreed to submit all

existing or future disputes, the question of taking jurisdiction is an un-

controversial one. However, where no such submission has been made

and a plaintiff or proposed class is asserting that a Quebec authority

should assume juris diction under article 3148(2) or 3148(3), the issues of

fact and law are both likely to be hotly contested.

The second subparagraph was the connecting factor on which the

facts of Anvil turned. Essential ly, for a Quebec authority to take jurisdic-

tion under 3148(2), it must be proven that two requi rements are satisf‌ied:

f‌irst, that the defendant has an establishment in Quebec;93 and second,

92CCQ, abovenote 85, art 3148.

93The Quebec Court of Appeal unde rtook a thorough analysis of t he “establish-

ment” requirement in Interinvest (Bermuda) Ltd c Herzog, 200 9 QCCA 1428 at

paras 14–28 [Interinvest] and concluded at p ara 28 “that a company may have,

in addition to its he adquarters, various e stablishments or place s of business,

an establi shment is where a business is op erated, a physical location w ith a

degree of stabil ity, and the determination of the ex istence of an establish ment

256 The Canadian Class Action Review

that the dispute rel ates to the defendant’s activ ities in Quebec. In the f‌irst

instance, Anvil submitted that there was also a contemporaneousness

criterion, which required the establishment in Quebec to exist at the time

of the facts underlying the action. For its part, the CAAI submitted that

the company’s establishment in Quebec need only exist at the initiation

of the action. Justice Emery at the Super ior Court cited the Quebec Court

of Appeal’s decision in Rees v Convergia94 in accepting CAAI’s submis-

sion and rejecting Anvil’s proposed t hird condition. In Rees, Rayle J held:

“By referring back to article 3148 CCQ, it is noted that the elements for

awarding jurisdiction provided in paragraphs 1 and 2 (the home or resi-

dence of the defendant or the establishment of the legal person) must

necessari ly exist at the time when the action is inst ituted.” 95 At the Court

of Appeal in Anvil though, Forget J noted that the Rees judgment was

primarily in regard to article 3149, and the comments on article 3148(2)

were obiter dictum. Additionally, Forget J stated:

I do not think it is necessary in this case to aff‌irm, absolutely, that the

two conditions of sect ion 3148(2) C.C.Q. must exist at the t ime of the facts

underlying responsibility or at the time of the institution of the action

or both. However, the total absence of establishment and activity at the

time of the underly ing facts and certainl y a signif‌icant element to deter-

mine if the di spute relates to its activity i n Quebec.96

Therefore, it seems that the simulta neity of the defendant’s establishment

in Quebec and the alleged wrongful conduct suggested as a criterion by

Anvil is less material than the extent to which the second criterion is

satisf‌ied.

Assuming t hat the f‌irst requirement is satis f‌ied by the defendant hav-

ing an establishment at the time the action is initiated (it would be un-

problematic if the establishment existed at the time the facts underlying

the action occurred), the plainti ff is still required to prove that t he dispute

relates to the defendant’s activities in Quebec. In Anvil, the company’s

Montreal off‌ice opened in June 2005 — half a year after the Kilwa mas-

sacre — and was occupied by a single full-time employee. Robert LaVal-

liere, Anvil’s vice president of investor relations at the time, and later of

corporate affairs, was tasked primarily with maintaining relations with

in Québec is an e ssentially factu al question. Failure to regist er in Quebec or

f‌ile an annual r eturn is not determinat ive.”

94Rees v Convergia, 2005 QCCA 353.

95Ibid at para 48.

96Anvil QCCA, above note 4 at par as 78–79.

Volume 9, No 2, February 2014257

shareholders and promoting Anvil’s operations to North American in-

vestors. Mr. LaValliere was also involved in “crisis management” for the

company.97 In its Motion for Authorization, the CAAI claimed that be-

cause Anvil’s only operations involved the exploitation of the Dikulushi

Mine in the DRC, its activities in Quebec were necessarily related to the

company’s involvement in all incidents related to t hat mine near the town

of Kilwa. This would inherently include the actions of Anvil’s employees

during the October 2004 events and the massacre carried out by the

FARDC with logistical s upport from Anvil . Justice Emery at the Super ior

Court accepted this conclusion.98

Much of the controversy in Anvil was around the correct interpreta-

tion of the words “the dispute relates to the activities in Quebec” in

article 3148(2).99 Since Spar Aerospace it has been recognized that article

3148 “establishes a broad basis for f‌inding jurisdiction.”100 As a result,

Quebec authorities and the SCC have been quite liberal in their inter-

pretation of the wording of 3148(2) and 3148(3) in order to assume juris-

diction. In fact, in Spar Aerospace, LeBel J held that:

the doctrine of for um non conveniens, as codi f‌ied at art. 3135, serves a s an

important counte rweight to the broad basis for jur isdiction set out in art.

3148. In this way, it is open to the appellant s to demonstrate, pursuant to

art. 3135, that although there is a l ink to the Quebec authoritie s, another

forum is, in the i nterests of justice, better suited to t ake jurisdiction.101

In other words, the courts should t ake an expansive approach to assum ing

jurisdiction under a rticle 3148, a nd balance that approach by applying the

test under article 3135 to determine if Quebec is a for um non conveniens.

This was the approach taken in Interinvest (Bermuda) Ltd vHerzog,

where Dalphond J held that “a foreign legal person with an establish-

ment in Quebec can be sued if the matter in dispute relates to its activity

in Quebec, even if the decisions relating to that activity were not taken

by the Quebec establishment.”102 In Anvil, the Court of Appeal acknow-

ledged this holding of Dalphond J, but went on to state “that does not

excuse the need for demonstration that the dispute objectively relates to

its activity in Q uebec . . . I am unable to establish a link bet ween the alleged

97Ibid at paras 83 –86; see also Anvil QCC S, above note 4 at paras 17–29.

98Anvil QCCS, above note 4 at para 29.

99Ibid at para 27.

100Spar Aerospace, above note 86 at paras 31 and 57–61.

101Ibid at para 57.

102Interinvest, ab ove note 93 at para 41.

258 The Canadian Class Action Review

wrongdoing committed by Anvil’s leaders in October 2004 and an activ-

ity in Quebec that would have begun in June 2005.”103

While the CAAI failed to show any connection between the dispute

and the establi shment in Quebec, establishing a Quebec author ity’s juris-

diction under 3148(2) in such a case of alleged complicity in war crimes

is not unattainable. A foreign plaintiff or proposed class would need to

satisfy two requirements. First, that the defendant has an establishment

in Quebec. This would mean identifying a physical location of some sta-

bility where the busine ss of the defendant was conducted. The establish-

ment need not necessarily exist at the time of the dispute, but certainly

at the time the action is initiated. Second, the defendant’s activities in

Quebec must somehow be related to the dispute in question. This does

not require a plaintiff to prove that the decisions related to the dispute

were taken in Quebec. However, there must be a suff‌icient link to show

that the defendant’s activities in Quebec are relevant to the al leged inter-

national wrongdoing. The courts have refused to make an implicit con-

nection, as in Anvil, where because the dispute occurred in proximity to

the company’s only extractive operations, all other activities are neces-

sarily related. In that sense, a defendant must have at least some related

activity in Quebe c at the time of the dispute in question. The CAAI f ailed

to show that Anvil was carrying out any such activity in Quebec in Oc-

tober 2004, which could be related to aiding or abetting war crimes or

crimes again st humanity.

A second option for a Quebec authority to take jurisdiction where

the defendant is not domiciled in Quebec and does not submit to the

Quebec authority is found in article 3148(3) CCQ. There are four pos-

sible grounds for assert ing jurisdiction under article 3148(3): the defend-

ant committed a fault in Quebec, the damage incurred by the plaintiff

was suffered in Quebec, the injurious act of the defendant occurred in

Quebec, or one of the contractual obligations between the parties was

to be performed in Quebec.104 In the category of cases in consideration

here (a foreign class pursuing corrective justice for the commission or

complicity in the commission of war crimes and crimes against human-

ity by a defendant corporation), probably only two of these factors will

be relevant. The nature of the dispute makes it unlikely that contractual

obligations woul d exist as between t he parties, let alone obl igations to be

performed in Quebec. Meanwhile, it is highly improbable that the dam-

ages in such a case would be suffered in Quebec.

103Anvil QCC A, above note 4 at paras 89 and 93.

104 CCQ, above note 85, art 3148(3).

Volume 9, No 2, February 2014259

That leaves the two concepts of fault and injurious act, which must

have occurred in Quebec for a Quebec authority to assume jurisdiction.

In regard to these grounds, the Quebec Court of Appeal in Spar Aero-

space stated that “the f‌irst concept requires a breach of an obligation, the

second refers to the act which causes damage and does not consider

the notion of obligation.”105 Neither of these grounds has been cited in

regard to the type of cases in question here. However, one can imagine

a case where the negligent conduct or management of a corporation’s

asset by employees in Quebec might lead to the misuse of such assets

as logistical support in the commission of a similar massacre to the one

which was carried out at Kilwa. Implicit in this understanding is that

the proposed class would need to prove that the defendant corporation

was under a duty of care to control its employees and equipment in a

way which would not lead to the harm suffered by the plaintiff. In that

case, t he fault that occurs in Quebec would necessarily have to be a cause

of a not-too-remote harm suffered in the foreign location. Alternatively,

if a foreign plaintif f class could show that the defendant in Quebec made

a conscious decision, which was intended to have the consequence of

creating the harm suffered, the Quebec authorities might assume juris-

diction on the grounds of an injurious act occurring in Quebec. In Spar

Aerospace, LeBel J stated that the appropriate inter pretation of “injurious

act” “must refer to a damage-causing event that attracts no-fault liabil-

ity.” The act in the hypothetical case would not be the perpetration of

the wrongs itself, but the managerial decision to conduct or support

such actions in order to cause the complained of harm. In both of these

scenarios, it would probably be necessary to prove that the decision or

negligent non-decision was or should have been taken by the defendant

in Quebec. However, these grounds are untested, and ultimately a Que-

bec authority’s decision in assuming jurisdiction or not will necessarily

turn on the facts of the action being proposed.

Establishing a connection under any of these articles is not deter-

minative, though, as a Quebec authority may still consider exception-

al circumstances in its decision whether or not to assume jurisdiction.

Where a Quebec court has jurisdiction to hear a case, article 3135 gives

that authority the discretion to decline jurisdiction on the basis of forum

non conveniens. On the other hand, article 3136 provides a forum of ne ces-

sity doctrine whereby a Quebec authority that does not have juri sdiction

can hear the dispute in exceptional circumst ances.

105Spar Aerospace, abovenote 86 at para 12, citi ng Spar Aerospace Ltd c American

Mobile Satellite Cor p, 2000 CanLII 10312 at paras 16–17 (QCCA).

260 The Canadian Class Action Review

2) The forum non conveniens: Article 3135 CCQ

The provision codifying the forum non conveniens doctrine in Quebec

reads as follows:

3135. Even though a Québec authorit y has jurisdiction to he ar a dispute,

it may exceptionally and on an application by a party, decline jurisdic-

tion if it considers t hat the authorities of another countr y are in a better

position to decide.

Implicit in this article are three key requirements. First, the party rely-

ing on the doctrine must apply for dis missal of the action on the grounds

of the article. Second, authorities of another country must be in a better

position to decide. Third, the doctrine should be invoked only in excep-

tional cases.

In order to determine whether the author ities in another jurisdiction

are more appropriate, the SCC in Spar Aerospace adopted a ten-factor list

used by the Quebec Court of Appeal in Lexus Maritime Inc v Oppenheim

Forfait GmbH.106 Justice LeBel stated that the invocation of forum non

conveniens should be based on a consideration of the following:

1) The parties’ re sidence, that of witnesses a nd experts;

2) the location of the m aterial evidence;

3) the place where the cont ract was negotiated and executed;

4) the existe nce of proceedings pending betwe en the parties in another

jurisd iction;

5) the location of Defenda nt’s assets;

6) the applicable law;

7) advantages confer red upon Plaintiff by its choice of forum , if any;

8) the interest of just ice;

9) the interest of the p arties;

10) the need to have the judgment recogni zed in another jurisdict ion.107

None of these factors were held to be determinative. However, in the

context of proposed class actions where the membership of the class is

primarily or entirely foreign to Quebec, these factors will be considered

with regard to the rules and purposes of class proceedings.

Meanwhile, it may be the case, as it was in Anvil, that more than one

alternative forum may exist. In such circum stances, no single, preferable

forum is clearly demarc ated, but multiple alternatives, which are equally

106 [1998] QJ No 2059 at para18 (QL).

107Spar Aerospace, above note 86 at para 71.

Volume 9, No 2, February 2014261

suitable, can be found. In those c ases, Spar Aerospace maint ains that “there

is a presumption in favour of the forum selected by the plaintiff, which

wins by default if t here is no clearly preferable alternative.”108

The Quebec Court of Appeal emphasized the f‌lexible, fact-specif‌ic

application of a rticle 3135 in Lamborghini (Canada) Inc v Automobili Lam-

borghini SPA,109 where it held:

If [a Quebec authority] concludes that the defendant has clearly estab-

lished that the circumstances of the case as a whole allow the court to

f‌ind that a foreign cour t or a court in another province is a more appro-

priate forum, the court may stay the proceeding in Quebec by deciding

that it must instead be commenced or continued outside the territorial

jurisdict ion of the Quebec courts.110

The burden is on the defendant applying for the dismissal on this doc-

trine to show both “that the Quebec court is clearly less appropriate,

but also that another court is clearly better suited to settle the dispute

between the parties.”111

In a 1998 class action cas e against Cambior Inc, the Quebec Superior

Court assumed jurisdiction but dismissed the action on the basis of the

forum non conveniens doctrine. In that case, a dam at the Omai Mine in

Guyana collapsed, spilling 120-million gallons of contaminated water

into the Omai and Essquibo Rivers.112 Despite the reality that “the ad-

ministration of justice is in such a state of disarray that it would consti-

tute an injustice to the victims to have their case litigated in Guyana,”

the Quebec Superior Court found that “Guyana’s judicial system would

provide the victim s with a fair and imparti al hearing.”113 The Quebec court

noted that t he spill occurred in Guyana, the vict ims and witnesses re sided

there, the harm was suf fered there, the laws of that country would apply,

and thus the Guyanese courts would be the more appropriate forum.114

In Anvil, the Superior Court decl ined to invoke the doctrine of forum

non conveniens, holding “that if the Tribunal dismissed the action on the

108Ibid at p ara 75, citing Amchem Products Inc v Brit ish Columbia (Workers’ Com-

pensation Board), [1993] 1 SCR 897 at p 931, Sopinka J.

109 [1997] RJQ 58 [Lamborghini].

110Ibid at p 68.

111Rudolf Keller SR L c Banque Laurentienne du Can ada, 2003 CanLII 34 078 at para

62 (QC CS).

112Recherches Internationales Québec vCambior Inc, [1998] Q J No 2554 at paras

1–2 (SC) [Cambior].

113Ibid at pa ra 12.

114Ibid at par a 9.

262 The Canadian Class Action Review

basis of article 3135 C.C.Q, there would exist no other possibility for the

victims to be heard by civil justice.”115 However, the Court of Appeal in

that case deter mined in the absence of jurisdiction of t he Quebec author-

ities, it was unneces sary to consider the application under article 3135.116

However, it is clear from the caselaw that “the doctrine of forum non

conveniens is to be applied exceptionally.”117 Jeffery Talpis and J-G Castel

write in “Interpreting the Rules of Private International Law” that:

The starting point should be the principle that the plaintiff ’s choice of

forum should only be decli ned exceptionally, when the defendant would

be exposed to g reat injustice as a result. Quebec courts must f‌ind a bal-

ance between the adv antages and disadvant ages for the parties when the

plaintiff chooses a Quebec court. They should only decline jurisdiction

if the bala nce tilts toward the foreign court.118

Considering the three purposes of class actions set out above (judicial

economy, access to justice, and behaviour modif‌ic ation), in addition to the

fact that class certif‌ication rules do not bar foreign classes from bring-

ing actions in Canada, the doctrine of forum non conveniens should very

rarely apply to circumst ances such as the Kilwa incident — if the Queb ec

authorities have juri sdiction in the f‌irst place. However, if the courts give

more weight to the private internat ional law pri nciple of comity than t he

sister principles of fairness and eff‌iciency, it may be required of a foreign

class to incur signif‌icant expense in both time and money trying their

case in their home jurisdiction in order to prove the domestic legal sys-

tem is faulty and access to justice is severely threatened.

3) The Forum of Necessity: Article 3136 CCQ

The contrary considerat ion is found in article 3136 CCQ under the forum

of necessity principle. The provision st ates:

3136 . Even though a Québec authority ha s no jurisdiction to hear a di s-

pute, it may hear it, if the dispute has a suff‌icient connection with Qué-

bec, where proceedi ngs cannot possibly be instit uted outside Québec or

115Anvil QCCS, ab ove note 4 at para 39.

116Anvil QCCA, ab ove note 4 at para 95.

117Spar Aerospace, above note 86 at para 79.

118 Jeffrey A Talpis & J- G Castel “Interpreting t he Rules of Private Internat ional

Law,” in Reform of the Civil Code, vol 5B, Private Inter national Law (Montr é-

al: Barre au du Québec, 1993) [translat ed by Susan Altschul] at 55, cited with

approval in Spar Aerospace, ibid at para 79.

Volume 9, No 2, February 2014263

where the institution of such proceedings outside Québec cannot rea-

sonably be required.119

In order for a Quebec authority to declare itself a forum of necessity, the

burden of proof is on the party appealing to the jurisdiction of the court

to meet two requirements. Fir st, the party must show that the dis pute has

a suff‌icient connection with Quebec. Presumably this requires less of a

connection than one that is “real and substanti al.” However, LeBel J cau-

tioned against too read ily invoking the principle in Lamborgini. There, at

the Quebec Court of Appeal, Lebel J held that “the provision represents

a narrow exception to the normal rules of jurisdiction. It is not intended

to allow the Quebec court to appropriate jurisdiction which it would not

otherwise possess.”120 Although it may not be required for a plaintiff to

point to a connecting factor found in another article of the CCQ, it still

lies with the plaintiff to show a suff‌icient connection. In obiter, LeBel J

stated in Spar Aerospace that by looking at the ten connecting factors

listed in the forum non conveniens considerations, a court might f‌ind a

suff‌icient connection with the Quebec forum.121 This would, in theory,

satisfy the f‌irst requirement under article 3136.

The second requirement may be more diff‌icult in cases analogous to

Anvil. It must be either impossible to institute proceedings outside Que-

bec, or unreasonable, given the circumstances, to require the plaintiff

to attempt to do so. In Lamborghini, LeBel J restricted this aspect to deal

with problems of access to justice, for a litigant who is in Quebec, when

the foreign forum that usually has jurisdiction is inaccessible to him for

exceptional reasons.122 Justice LeBel imagined the types of cases where

the forum of necessity doctrine would apply to be limited to situations

where there has been a breakdown in relations with the foreign state, or

there is a need to protect a politica l refugee, or there is a threat of physical

harm to the party proposing to bring an action. Any of these circum-

stances would prevent a person, who was in Quebec, from bringing an

action in the foreign state.123

Justice Lebel does not appear to def‌initively close the categories of

situations that might cause Quebec to become a forum of necessity. Crit-

ically though, the doctr ine acts not only to accommodate one of the part ies

119 CCQ, above note 85, art 3136.

120Anvil QCCA, above note 4 at p ara 98, citing Lamborghini, aboven ote 109.

121Spar Aerospace, above note 86 at para 64.

122Anvil QCCA, above note 4 at p ara 98, citing Lamborghini, aboven ote 109.

123Ibid.

264 The Canadian Class Action Review

to the dispute but also to avoid a denial of justice.124 Certainly in Anvil

the Quebec Court of Appeal did not foreclose the possibility of invoking

article 3136 CCQ on the fact that the proposed class was entirely foreign

to Quebec. Rather, Forget J held that the CAAI failed to discharge its

burden of demonstrating an impossibility of obtaining access to justice

in a foreign court and showing that the case had a suff‌icient connection

to Quebec.125 In short, the forum of necessity prov ision was rejected, not

because the proposed class was from Kilwa in the DRC, but because the

victims could still have pursued justice either in the civilian courts of

the DRC — where the wrongful acts occurred — or in Australia, where

Anvil was headquartered.126

Just as there are no rules prohibiting the certif‌ication of a foreign

class from bringing an action in Quebec, it also seems that Title Three

of Book Ten CCQ on the international jurisd iction of Quebec authorities

imagines several scenarios in which such a class could bring such an

action. In the simplest cases, a defendant person or corporation would

have residence or a head off‌ice in Quebec, or submit to the jurisdiction of

the Quebec authority (articles 3134, 3148(1), 3148(4), 3148(5), and 3148

para 2 CCQ). The connecting factors required under article 3148(2)–(3),

or showing that Quebec i s a forum of necessit y under article 3136, would be

more diff‌icult for a proposed foreign class to prove. Additionally, in any

case where the Quebec author ity is found to have jurisdiction, it remain s

open to the defendant to apply for dismissal of the case on the notion of

forum non convenie ns. Therefore, while the task may not be impossible, a

proposed foreign class faces a steep climb with ma ny obstacles in h aving

its case heard in Quebec.

4) Jurisdiction Rules under the Common Law

Ontario’s rules for taking jurisdiction were reformulated in 2012 by the

Supreme Court of Canada, modifying the real and substantial connec-

tion test that was f‌irst conceived in 2002 by Sharpe J in Muscutt v Cour-

celles127at the Ontario Cour t of Appeal. In 2010, Sharpe J began to rev iew

124 P Glenn, “Droit inter national privé,” dans La réfor me du Code civil (Barreau du

Québec et la Cha mbre des Notaires du Québec, P.U.L., Sainte-Foy, 1991) at 744.

125Anvil QCCA, above note 4 at p ara 103.

126Ibid at paras 100 –2.

127Muscutt v Courcelles, 20 02 CanLII 44957 (ONCA) (available on CanLII)

[Muscutt] developed a list of e ight factors to be considered when decid ing

whether an ass umption of jurisdiction is ju stif‌ied: (1) the connection between

the forum and the pl aintiff’s clai m; (2) the connection bet ween the forum and

Volume 9, No 2, February 2014265

and reframe the Muscutt test in two ca ses combined at the Ontario Court

of Appeal under the name Van Breda v Village Resorts Limited.128On ap-

peal the Supreme Court of Canada in 2012, LeBel J took this reformu-

lation further. In Club Resorts Ltd v Van Breda,129 the SCC held that in

order to establish a real and substantial connection prima facie between

the dispute and the Ontario authority, a plaintiff need only point to the

existence of a presumptive connect ing factor. Writing for the SCC, LeB el

J listed four such factors in cases concerning a tort: (a) the defendant is

domiciled or resident in the province; (b) the defendant carries on busi-

ness in the province; (c) the tort was committed in the province; and

(d) a contract connected with the dispute was made in the province.130

Interestingly, what LeBel J seems to have attempted, in effect, is the har-

monization of relevant CCQ provisions on the inter national jurisdiction

of Quebec authorities with the common law principles guiding the as-

sumption of jurisdict ion by Ontario courts. The application and practical

effects of the new Va n Bred a test remains to be seen.

In any case, the SCC also made clear that the list of recognized fac-

tors is not, and should not be, closed.131 In reviewing and adding new

presumptive connecting factors, LeBel J set out the following considera-

tions for courts in futur e international disputes: (a) similarity of t he con-

necting factor with the recognized presumptive connecting factors; (b)

treatment of the connecting factor in caselaw; (c) treatment of the con-

necting factor in statute law ; and (d) treatment of the connecti ng factor in

the private intern ational law of other legal systems with a sh ared commit-

ment to order, fairness, and comity.132 As he did in Spar Aerospace, LeB el J

emphasized the pertinent place of the principles of private international

law in all juri sdictional questions. In particular, he stated that the values

of order, fairness, and comity “unde rlie all presumptive connecting factor s

the defendant; (3) unfair ness to the defendant in a ssuming jurisdict ion; (4)

unfair ness to the plaintiff i n not assuming juris diction; (5) the involvement of

other partie s to the suit; (6) the court’s willing ness to recognize and en force

an extra-prov incial judgment rendered on t he same jurisdictiona l basis; (7)

whether the ca se is interprovincia l or international in nat ure; and (8) comity

and the stand ards of jurisdiction, r ecognition and enforcement prevai ling

elsewhere. No sin gle factor was held to be determin ative. In Sharpe J’s words,

“all relevant factor s should be considered and weighed togethe r” (at para 76).

1282010 ONCA 84, 98 OR (3d) 721 [Van Br eda ONCA] (available on C anLII).

129 Club Resorts Ltd v Van Breda, 2012 SCC 17 [Van Br eda] (available on C anLII).

130 Ibid at para 90.

131Ibid at p ara 80.

132Ibid at para 91.

266 The Canadian Class Action Review

whether liste d or new.”133 However, the presumptive factors were not held

as irrebuttable, leaving it to a defendant to argue that accepting such a

connection would be inappropriate in the circumstances.134

The Court also warned against too broadly expanding the ability of

courts to assume jurisdiction:

If, however, no recognized presumptive connecting factor — whether

listed or new — applies, t he effect of the common law real and subst an-

tial connection test is that the court should not assume jurisdiction. In

particular, a court should not assume jurisdiction on the basis of the

combined effect of a number of non-presumptive connecting factors.

That would open the door to assumptions of jurisdiction based largely

on the case-by-c ase exercise of discretion a nd would underm ine the ob-

jectives of order, certa inty and predictability t hat lie at the heart of a fair

and principled pr ivate international law syste m.135

However, once the jurisdiction of an authority is established, it is not

absolute. A defendant can still invoke forum non conveniens.

5) The forum non conveniens

The common law doctrine of forum n on conveniens is simi lar, but not iden-

tical, to the civil law provision found in article 3135 CCQ. The burden

is still on the defendant to raise the issue to show why the court should

decline jurisd iction. In order to do so, the defendant must identif y an al-

ternative forum, e stablish a rea l and substantial connection (on the same

analysis required by the Van Breda test) to that forum, and demonstrate

why the alternative forum should be considered more appropriate.136 At

common law, the burden is on the defendant to meet the standard of

showing that the alternative forum is “clearly more appropriate.”137 This

language is not found in art icle 3135 CCQ, but the Quebec rules do stress

the exceptional nature of the doctrine.

Justice LeBel doubted whether any list of factors in considering ap-

propriateness could be exhaustive, preferring instead to insist that “the

doctrine focuses on the contexts of individual cases, and its purpose is

to ensure that both parties are treated fairly and that the process for re-

133Ibid at para 92.

134 Ibid at paras 81 and 95–97.

135Ibid at par a 93.

136 Ibid at para 103.

137Ibid at par a 108.

Volume 9, No 2, February 2014267

solving their lit igation is eff‌icient.”138 In any case, he continued to sug gest

that such factors:

might include the locat ions of parties and wit nesses, the cost of tra nsfer-

ring the ca se to another jurisdiction or of decli ning the stay, the impact

of a transfer on the conduct of the litigation or on related or parallel

proceedings, the possibility of conf‌licting judgments, problems relat-

ed to the recognition and enforcement of judgments, and the relative

strengths of t he connections of the two partie s.139

Ultimately, forum non conveniens is not about denying a plaintiff their

choice of forum because another forum might exist, but about ensur-

ing fairness to the parties and ensuring eff‌iciency in dispute resolution.

These underlying goals a re compatible with the fundamental pur poses of

certifying class proceedings in the f‌irst place.

6) The Forum of Necessity

However, the SCC in Van Breda did not address the forum of necessity

doctrine, presum ably giving tacit support to Sharpe J ’s formulation at the

Ontario Court of Appeal in that case. Describing the forum of necessity

as a limited exception to the real and substantia l connection test, Sha rpe

J stated:

Where there is no other forum in which the plaintiff can reasonably

seek relief, there is a residual discretion to assume jurisdiction. In my

view, the overriding concern for access to justice that motivates the as-

sumption of jurisdiction despite inadequate connection with the forum

should be accommodated by explicit recognition of the forum of neces-

sity exception rat her than by distorting t he real and substantial con nec-

tion test.140

While there is no guiding SCC authority on the common law forum of

necessity doctrine, Sharpe J’s contemplation of the principle seems to

support the idea that in exceptional cases, proposed foreign classes may

deserve certif‌ication and hearing of their case in Canada in order to en-

sure access to justice.

In short, the rules for assuming jurisdiction in international cases

are neither clear nor static. In Quebec, the CCQ is subject to changing

138 Ibid at para 105.

139Ibid at para 110.

140Va n Bre da ONCA, above note 128 at par a 100.

268 The Canadian Class Action Review

interpretations and d iffering circumstant ial factors. In Ontario and com-

mon law Canada, the ef fects of the Va n Bre da decision rema in to be seen.

Meanwhile, the situations giving rise to tort actions of an international

nature are constantly evolving and changing with new technologies. In

addition, the expanding reach of globalization has made transnational

harms more prevalent, and recourse for such harms in foreign jurisdic-

tions more necessary. This overview does not purport to be a compre-

hensive review or decisive statement of the rules regarding the taking

of international jurisdiction by Quebec or Ontario authorities. Rather,

it intends, in the context of foreign classes bringing actions in Canadian

courts for harms suffered internationally, to outline some of the many

obstacles to justice faced by such proposed classes.

E. POLICY OBSTACLES TO FOREIGN CLASS ACTIONS

The current work has also shied away from addressing policy considera-

tions, which are certainly at play whenever a court must decide whether to

assume juri sdiction in international cas es. There are, of course, the guid-

ing principles of private inter national law. In decisions in SparAerospace,

Van Breda, and other cases, the Supreme Court of Canada has discussed

these principles at lengt h. There are also numerous implicit considerations

at play. Judicial deference to legislative direction and Canadian foreign

policy preferences is always an inf‌luential factor that may not explicitly

arise in non-const itutional law cases. Moreover, the court is bound to be

cognizant of the economic impacts of a decision to exercise jurisdiction

and hear a case against a corporation headquartered or otherwise estab-

lished in Canada for alleged wrongs committed internationally. Though

it is impossible to predict wit h any accuracy, such transnational corpora-

tions may attempt to relocate thei r operations to jurisdictions wit h fewer

tendencies to assume jurisdiction in international disputes.

F. LESSONS LEARNED FROM

ANVIL

The Kilwa victims are the unfortunate test case in a scenario where a

transnational corporation, by deliberate acts or negligent omissions, al-

legedly became complicit in atrocit ies committed by the armed forces of a

domestic state. As noted by Forget J at the Quebec Court of Appea l, “it is

regrettable to note that citi zens have so much diff‌iculty obtain ing justice.

Despite all of the sy mpathy that must be felt for the victims . . . the l egisla-

tion does not make it possible to recognize that Quebec has jurisdiction

Volume 9, No 2, February 2014269

to hear this cl ass action.”141 The Kilwa class’s long road to justice ca me to

an unhappy ending when t he Supreme Court of Canad a refused leave for

appeal to the CAAI.

Yet, although the uphill struggle may have come up short, the even-

tual loss did not come without its le ssons. The courts have not refused to

certify a foreign cl ass by virtue of the residence of its memb ership, which

may be a factor in determining the appropriateness of the forum, but

alone should not bar certif‌ication. The relevant statutes certainly don’t

expressly prevent a foreign class from bringing an action either. Mean-

while, the purposes underlying class proceedings — judicial economy,

access to justice, and behaviour modif‌ication — seem to support foreign

classes seeking corrective justice in Canadian courts. The potential ben-

ef‌its support notions of justice globally. Compensation and fairness for

victims of wrongs committed by transnational corporations are critical

to the goals of corrective justice. Meanwhile, specif‌ic and general deter-

rence of transnational corporations from engaging in harmful activities

can only truly b e effective where there is a realistic effort to end impun ity.

Clearly, there are signif‌icant obst acles that a foreign class must over-

come in order to have its case hea rd by Canadian courts. Some legi slative

and judicial efforts have been made to harmonize the various regimes

for taking jurisdiction in international cases across Canada. That does

not mean, however, that foreign plaintiffs will be free to bring an action

in any Canadian jurisdiction they choose. The principles of private in-

ternational law — comity, order, fairness, and the like — still demand a

“real and substantial connection” between the parties, the dispute, and

the forum. In Quebec, the CCQ has set out provisions that indicate what

connecting factors will be suff‌icient to satisfy that requirement. Ontario

and common law Canadian jurisdictions are subject to more leniency and

judicial interpretation, but the connection must still be “real and sub-

stantial.” In any case, where such a connection has been found, a court

may still decline to hear the case on the basis of forum non conveniens

in exceptional circumstances, where another forum is clearly more ap-

propriate.

The proposed plaintiff cl ass in Anvil may have satisf‌ied t he purposes

of class proceedings and requirements for certif‌ication, but the CAAI

failed to suff‌iciently l ink the dispute to the Quebec forum. Quebe c authori-

ties could not, on the legislative direction, take jurisdiction to hear the

case. Nor was there suff‌icient connection or the impossibility of accessing

141Anvil QCCA, a bovenote 4 at para 104.

270 The Canadian Class Action Review

justice in a more appropriate forum, which may have made Quebec a

forum of necessity. This was certainly a disappointing end to a diff‌icult

struggle; the Kilwa victims are still without justice almost a decade after

their horrendous suffering. Yet, the pursuit of global justice is not with-

out hope. Given the appropriate factual matrix, Canadian courts will

have to, in the right circumstances, hear the cases of foreign plaintiff

classes who h ave suffered harms internat ionally, in order to allow justice

to be done.