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

AuthorJacob RW Damstra
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, or FAR DC)
conducted anti-insurgency operations in the town of Kilwa,
Katanga province, DRC. Along the way, with logi stical support
from Anvil Mini ng Limited, a Canadi an-Australian transna-
tional corporation, t he FARDC committe d 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 court s raises several interesting ques-
tions about the feasibilit y of a foreign clas s bringing an action
against defendants i n Canadian court s. 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 str ictly 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 Cana dian Cla ss Action Rev iew
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-
Jacob RW Damstra*
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 Agai nst Impunity (CAAI) titled “No justice in Canada for
Congolese massacre v ictims as Canad a’s Supreme Court dismisses leave
to appea l.”2 Both article s quote Matt Eisenbrant, president of the Canadi an
* 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 da/montreal/
supreme-court-won-t-hear-appe al-in-congo-mas sacre-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/i ndex.php?DOC_INST=14>.
230 The Cana dian Cla ss Action Rev iew
Centre for International Just ice 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 cour ts, 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 court s 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 inspect ion 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 authoriz ation for a
class action in Quebec, on behalf of Congolese victims of war crimes
and human rights v iolations executed in October 2004, against Anvil
Mining Ltd for its alleged complicity, aiding and abetting the crimes.
Anvil was incor porated pursuant to the Busine ss Corporation Act of the
Northwest Territories of Canad a, 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 ma ssacre occurred — in t he 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 Ki lwa 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 SCC A].
5 Anvil QCCA, ibid at pa ras 16–17.
6 Anvil QCCS, above note 4 at para 41.
7 Anvil QCCA, above note 4 at para 104.
8 Anvil SCCA, above note 4 at par a 1.
Volume 9, No 2, February 2014 231
1) Q ue st ion s
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 cert ain circumstances. However, the Superior Court and
Court of Appeal judgments in Anvil provide only a piecemeal framework
— several questions remain unanswered. Thi s 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 internat ionally. First, what rules govern the cert if‌ication of
proposed classe s in Canada? Specif‌ically, are there any limitations on
(1) the membership of the cl ass due to citizenship/nationality or (2) the
types of harms for which a class can raise an action and seek compen sa-
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 cla ss; (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 certif y a foreign class and
exercise intern ational 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 direct ion (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 Canadi an courts, the interest s 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.
The story of the Kilwa clas s 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 inhabitant s located at the border
of Zambia, on the Mwero Lake (Pweto territory, High Katanga distr ict,
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 Cana dian Cla ss Action Rev iew
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 describe s 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 m arket, 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 Anv il. The rebels assured the em-
ployees that the MRLK had no intent ion 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 t he
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 citizen s 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 t heir 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
10 Ibid at par as 12–15.
11 Ibid at para 14.
12 Ibid at para 15.
Volume 9, No 2, February 2014 233
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 f‌ight ing.
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 clear ing 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 Canadia n 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 a fter 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 al lowed to pillage
the town, raping and torturing innocent non-combatant s. 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 pre ssure, the accused were tr ied before the Court Martial
13 Ibid at paras 16–17 [all punctuation and as ides appear in the origi nal report].
14 Ibid at p aras 17–19.
15 Ibid at para 26.
16 Anvil QCCA, ab ove note 4 at para 25
17 MONUC, above note 9 at par a 24.
234 The Cana dian Cla ss Action Rev iew
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 gui lty at trial — retur ning 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 l aw violations committed in the DRC, High Commissioner
Arbour stated:
The judicial decis ions made during the K ilwa case are an i llustration
of the lack of impar tiality and inde pendence within t he military ju s-
tice system. The Court has clearly demonstr ated its bias in favour of
the accused, exonerating Colonel Adémars of most of t he murder char-
ges made by the mi litary prosec utor, either against him pers onally or
against him a s the commander of the perpetrators of these murders. No
reference was made in t he judgment to internat ional law as it pert ains
to war crime s. Throughout this case, pol itical inte rference, 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-
18 Off‌ice 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
Rep ort].
19 Ibid at paras 8 67–68.
20 Ibid at para 869.
Volume 9, No 2, February 2014 235
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 compen sation 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 jurisdict ion 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 Represent ative21 (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 transport ation 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 inst allations, which Anvil had constructed at Kilwa. The
executive director of the Dikulushi Mine and person in cha rge of Anvil’s
operations on site in October 200 4 was Canad ian Pierre Mercier. During
the proceedings before the K atanga Court Marital on 13 October 2006,
Mercier commented on Kilwa’s signif‌icance to t he Dikulushi operation.
He also admitted Anvil’s awareness of the uprising i n Kilwa after Kazadi
met with Anvil’s employees at the fuel depot. He st ated:
Given what this tow n represents for Anvi l Mining, I altern ately called
the head of the ANR [Agence Natio nale de Renseigne ments (National I n-
telligence Agency)] in Kinshas a and the Comt 6 Rgn Mil (Comd 6 Rgn
Mil) [Commanda nt de la 6ième région militaire (Commander of the 6th
Militar y Region)] to ask them if they had infor mation on this situ ation.
The f‌irst, meani ng the head of the ANR, told me th at he knew nothing
about it, whereas the se cond, fully informed, recommende d that I evacu-
ate the members of our st aff. Therefore, I called Dik ulushi to ask them
21 Anvil QCCS, above note 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 Cana dian Cla ss Action Rev iew
to describe t he security situ ation there to me. After spe aking with t he
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 compa ny Anvil Minin g 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 shal low graves and one indiv idual grave. Anvi l Mining has
conf‌irmed to MONUC th at 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. A nvil Mining h as also acknowledged t hat 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 pla nes were also used to t ransport to Lubumb ashi
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 Min ing drove the vehicles us ed by the FARDC. MONUC was a lso
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 ac knowledged to have contributed to t he payment of a
certain numb er of soldiers.23
The MONUC report also noted that the Commander of the 6th Militar y
Region thanked Anvil for its logistical support, without which FARDC’s
intervention in Kilwa would not have been possible.24
The report also cites Anv il’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, t hat’s an internal i ssue.” In other parts of the inter view,
22 Ibid 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].
23 MONUC, above note 9 at para 36.
24 Ibid at para 37.
Volume 9, No 2, February 2014 237
Mr Turner added: “They requested as sistance from Anvil for tr ansporta-
tion. We provided that tr ansportation so t hat they could get their sol-
diers down to Ki lwa.” To the question of how ma ny vehicles Anvil were
being provided he an swered: “What dif ference does it make how many
vehicles? There are a group of soldier s, and whatever number of vehicles
was necessa ry to move these guy s I guess we sent up there and t hey
moved them down.”25
Therefore, it was evident that not only was Anv il’s senior management
aware of the company’s involvement with the FARDC in putting dow n
the MLRK uprisi ng, there was also an indifference regarding the scope
and extent of the assi stance 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 Anv il’s internal investigative report
concerning the events i n Kilwa. The company denied the request, accord-
ing to MONUC, in apprehension of legal proceedings env isaged against
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 f‌ir m 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’ law yers with regard to cost-related agree-
ments.29 Patricia Gr ylls, executive director of Right s and Accountability
in Development (RAID), was the representative charged with meeting
the victims i n order to obtain their inst ructions for Slater & Gordon.
According to Grylls’s aff‌idavit before the Australian t ribunal, Congolese
authorities impeded her movements and the movements of the Kilwa
25 Ibid at para 37, n 5.
26 Ibid at para 41.
27 Ibid.
28 Pierre v Anvil Mining Manageme nt NL, [2008] WASC 30.
29 Ibid.
238 The Cana dian Cla ss Action Rev iew
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 th reats 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 invest igations, poorly drafted or inadequately
substanti ated court documents, ir rational decision s, violations of due
process and var ious instances of interference by t he civilian and milit ary
authorities in t he judicial process, a re 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 prov ing the legal respon-
sibility of privat e companies in the perpetr ation of human r ights abuses
and violations of i nternational hum anitarian l aw, even when they are
supplying ar ms or logistical supp ort to armed groups. Thi s case also
showed that politic al interference and a lack of i mpartialit y are all the
more striki ng when economic interests ar e at stake. In this inc ident in
2004, at least 73 people were ki lled apparently by the C ongolese army
(FARDC) in Kilwa, a town in Kat anga that had fal len into the hands of
a rebel group. An Austra lian-Canad ian mining compa ny was accused
of supplying the ar my with logistics and transpor t during its mil itary
operation . . . The case could h ave set an important pre cedent in terms
30 Pierre v Anvil Mining Manageme nt NL, [2008] WASC 30.
31 Mapping Repor t, above note 18 at para 47.
Volume 9, No 2, February 2014 239
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 Super ior Court. In the proposed action
against Anvil, the CAAI descr ibed the class as:
All people who lost a member of t heir family, who were victims of abus e,
of pillage of their prope rty or who had to f‌lee the tow n of Kilwa in
October 2004 follow ing the illegal acts committed b y the Armed Forces
of the Democratic Republ ic of Congo.33
The Motion for Authorization alleged that Anvil h ad violated several
standards of conduct applicable to the Kilwa case. The claim stated that
Anvil acted negligently and imprudently, allowing the harm s to the
people of Kilwa to occur.34 Further, Anvil was accused as an accomplice
to crimes again st humanity and war cr imes under articles 7 and 8 re-
spectively of the Rome Statute of the Internat ional Criminal Court —
pursuant to Congolese domestic law.35 Article 25(3)(c) ascribes cr iminal
liability under the Rome Statute to persons who, “[f]or the purpose of
facilitating the commission of such a crime, aids, abets or other wise as-
sists in its comm ission or its attempted commission, including provid ing
the means for its commi ssion.”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
32 Ibid at para 774.
33 Motion for Authorization, above note 21 at pa ra 1.1.
34 Ibid at para 2.157.
35 Ibid at para s 2.163–2.167.
36 Rome Statute of the Int ernational Criminal Court, 17 July 1998, UN Doc A /
CONF.183/9, online: UN /icc/statute/romef ra.htm [Rome
37 Motion for Authorization, a bove note 21 at paras 2.168–2.179.
240 The Cana dian Cla ss Action Rev iew
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 cl ass itself or the alleged h arms; and (2)
what barriers exist for a foreign class for a proposed action to be heard
in Canadian courts.
1) Purposes
Conceptualizing the innocent victims at Kilwa as a class in the legal sense
is unique in itself — merciless war crime s 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 cla ss 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 fundament al purposes underlying
class actions in Canadian law: judicial economy, access to justice, and
behaviour modif‌ication. Furthermore, the Report on Class Actions con-
38 Again, 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.
39 Michael 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.
40 Ibid.
41 Ontar 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 2014 241
cluded by recommending legislative action in the form of a provincial
Class Proceedings Act.42 A decade later, the Ontario legislature eventually
passed the Cla ss Proceedings Act, 1992.43 The Supreme Court of Canada
accepted the three-pronged utility of class actions in the la ndmark 2001
decision of Western Canadian Shopping Centres Inc v Dutton44 wherein
McLachlin J (as she was then) stated that:
Class action s offer three import ant advantages over a multiplic ity of
individual s uits. First, by agg regating simil ar individual act ions, class
actions serve jud icial economy by avoiding unnecessary duplic ation in
fact-f‌inding and legal a nalysis. The eff‌icienc ies thus generated free ju-
dicial resources that can be d irected at resolving ot her conf‌licts, and
can also reduce t he costs of litigation both for plainti ffs (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 allowi ng f‌ixed litigation cost s to be divided over a large
number of plainti ffs, class act ions improve access to justice by making
economical the pros ecution of claims that would othe rwise be too costly
to prosecute indiv idually. Without class action s, 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, clas s actions serve eff‌iciency and justice by ensuring that
actual and potent ial wrongdoers do not ignore t heir obligations to the
public. Without class actions, those who cause w idespread but individ-
ually mini mal harm might not take into account the ful l costs of their
conduct, because for any one pla intiff the expe nse of bringing suit would
far exceed the l ikely recovery. Cost-sharing de creases the expense of
pursuing legal re course and accordingly deters pote ntial defendants who
might otherw ise assume th at minor wrongs would not result i n litiga-
In considering the certif‌ication of new and different ty pes of classe s,
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, cert ifying the
42 Ibid at 19 8.
43 SO 1992, c 6 [CPA]. See Eizenga & Dav is, above note 39 at 21.
44 [2001] 2 SCR 534 [Dutton].
45 Ibid at paras 27–29.
242 The Cana dian Cla ss Action Rev iew
Kilwa victim s as a class clearly satisf‌ies each of these pur poses. First,
judicial economy is served by reducing the need for travel related ex-
penses for plaintiffs and defendants, lim iting 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 repre sentative plaintiff be-
fore a Canadian court t han 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, rat her than multiple individual assessments ba sed
on claims of each aggrieved plaintiff bringing an indiv idual 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 v ictims, 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 modi f‌ied set of facts that might
allow Quebec courts to t ake 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 cla ss 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 act ions, 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 modif ying effect may be to cause transnational companies to
remove their operations from Canadian jurisd ictions. This effect would
be detrimental i n 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 2014 243
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 as sume 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 cer tif‌ied. 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 t hese criteria pr imarily in order to facili-
tate and standardize the certif‌ication of class actions in Can ada when
only about half of its jurisdictions had legislative direction.
An ancillar y 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 t he 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 inter pretations. 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 act ion
procedure even in the absence of a statutory framework.”49 Such a liberal
46 Ibid at paras 38 –41.
47 [2001] 3 SCR 158 [Hollick].
48 [2001] 3 SCR 182 [Rumley].
49 Eizenga & Davis, above note 39 at 23.
244 The Cana dian Cla ss Action Rev iew
attitude looks encouraging for new and unique classes to pursue col-
lective justice in the Can adian judicial system. On its face, a “f‌lexible
and expansive approach” seems to support a class of victim s 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 Crim inal Court under the Rome Statute,51 public international
law concepts of universal jur isdiction and extraterritoriality h ave 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 cor porations.”54 It may yet be the case t hat private
prosecution of internationa l 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 prov ince except for Prince Edward Island h as now
passed a general applicat ion class proceedings statute. Though the wording
varies slightly by jurisdiction, the generic cr iteria enunciated by McLach-
lin CJ in Dutton for certifying a class are st andard across the countr y.
Section 5 of Ontario’s CPA lays out the following guidelines for certif‌ica-
tion of a class:
The court shall cer tify a class pro ceeding on a motion under sect ion 2,
3 or 4 if,
(a) the ple adings or the notice of application dis closes a cause of ac-
50 John A Kazanjian, “Clas s Actions in Canada” (1973) 11 Osgoode Hall LJ 397 at
51 Rome Statute, above note 36
52 See, for example, R c Munyaneza, 2009 QCCS 2 201 (Crim Div).
53 Rome 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.
54 John 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 2014 245
(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 fa irly and adequately represe nt the interests of the
(ii) has produced a plan for the pro ceeding that sets out a work-
able method of advancing t he proceeding on beha lf 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 Cour t 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 act ions. Passed in 1978,
Book IX of the CCP governs the cert if‌ication of class actions in Quebec.
Specif‌ically, article 1003 reads:
The court authorize s the bringing of t he class action and a scribes the
status of repres entative to the member it designate s if of opinion that:
55 CPA , above note 43.
56 Ibid, s 1.
57 (2004), 73 OR (3d) 401, 247 DLR (4th) 667 at para 52.
58 CPA, 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”).
59 Code of Civil Procedure [CCP] .
246 The Cana dian Cla ss Action Rev iew
(a) the recourse s of the members raise identical, simil ar 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 a rticle 59
or 67 diff‌icult or impract icable; and
(d) the member to whom the court i ntends to ascrib e the status
of representative i s in a position to represent t he members ad-
As with the Ont ario CPA, the Quebec CCP does not expressly bar the
certif‌ication of a cla ss 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 member ship is composed, in whole or in
part, of foreign nationals, living outside of the Canadian jurisdict ion
where the proposed action will be heard.
In the Kilwa case then, applying the more general criter ia 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
ac ti on .”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 unnecessari ly br oa 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 incur red (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 cla ss 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’ losse s, as described above, are
60 Hollick, above note 47 at para 16 [emphasis in or iginal].
61 Ibid at para s 20–21 [emphasis in origina l].
Volume 9, No 2, February 2014 247
f‌ixed in time — they would not var y from member to member. Moreover,
despite the various injur ies of which there were complaints, the i ssues
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 cla ss 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 propert y was pillaged
during the events in Kilwa in October 2004.62 Ms. Mwayum a 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 cl ass. 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 factua l basis of the
claim, swear ing an aff‌idavit setting out facts relevant to cer tif‌ication, be-
ing cross-ex amined on the aff‌idavit, and participating in mediation or
trial proceed ings. 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 classe s from
bringing an act ion in Canada. In fact, the broad and sweeping conse-
quences of globalizat ion have brought recognition to the fact t hat foreign
62 Motion for Authorization, ab ove note 21 at paras 2.32–2.33.
248 The Cana dian Cla ss Action Rev iew
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 terr itorial borders within Canada. However, his comments
are presumably not less true in regard to an international class on non-
The Class Proceedings Act of Ontario does not s peak to the issue of
whether a plainti ff class can include non-resident s of Ontario. The Que-
bec Act is also s ilent on the issue of includi ng non-residents as cla ss
members. In contra st, the class proce edings legislat ion of the six other
provinces spe cif‌ically contemplates the inclusion of non-resident cla ss
members. Five of thes e provinces allow for non-resident class members
to opt in to a class proc eeding commenced in anot her province. Only
Manitoba allows for certif‌ication of non-resident cl ass members on an
opt-out basis.64
Citing several Ontario trial court certif‌ications of clas s actions con-
taining non-resident membership, Winkler CJO identif‌ied a limiting
requirement of a “real and subst antial connection between t he 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
Chief Justice Winkler a lso contemplated the recognition and enforce-
ment of class action judgments from other jurisdictions — indeed, from
63 Chief 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 /ps/speeches/global .htm.
64 Ibid.
65 Ibid, 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 2014 249
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;
(iii) non-resident clas s members are accorded procedur al 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 Il linois court
approving a class action settlement between American a nd 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 enter tain foreign class act ions
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 i mpunity 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 compen sation for harms created by a cor poration’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
66 (2005), 74 OR (3d) 321.
67 Ibid at para 30.
68 Dutton, above note 44 at para 26.
69 Hollick, above note 47 at para 37.
250 The Cana dian Cla ss Action Rev iew
A faulty product may be s old to numerous consumers. Corp orate
misman agement may bring loss to a l arge number of shareholders.
Discrim inatory policies m ay affect entire cate gories of employees. En-
vironmenta l pollution may have consequenc es for citizens all ove r the
country. Conf‌licts l ike these pit a large group of compla inants again st
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 cr imes, clearly such a case is analogous — there is a
large group of identically situated complainants, sharing common issues
pitted against an alleged w rongdoer. 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 i ssues 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 Rumle y.72 In the Kilwa case, all class members share an inter-
est in the question of whether Anv il 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 “nece ssary 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 Anv il. It is clear that in the absence of legisla-
tive guidance,74 the inquiry should be conducted with reference to the
70 Dutton, above note 44 at par a 26.
71 Rumley, 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.
74 See, 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 2014 251
three advantages of cl ass 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 indiv idual 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 t hat 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 pur poses of
class proceedi ngs, and the proposed class met the statutory a nd common
law criteria for certif‌ication, despite the absence of any ex press restric-
tions on foreign classe s 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
75 Hollick, above note 47 at para 28.
76 Ibid at para 29, citi ng WK Branch, Class Action s in Canada (Vanc ouver : West-
ern Legal P ublications, 1996) at para 4.690.
77 Ibid 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 Cana dian Cla ss Action Rev iew
Shortly after CAAI f‌iled the Motion for Authorization to Initiate a Cl ass
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 C AAI’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 clas s to overcome in order to receive certif‌ication as a cla ss
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 juri sdiction 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, Emer y 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 theor y of non
conveniens. In the Cour t 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
78 Anvil 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
79 Motion to Dismiss, ib id at para 1.
80 Ibid.
81 Anvil QCCS , above note 4 at para 40.
82 Anvil QCCA, above note 4 at pa ra 94.
Volume 9, No 2, February 2014 253
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 t he 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 di stinctly 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 w ill — or will not (as in Anvil) — have the
authority to assume jur isdiction 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 juris dictions in Canada,
with reference primarily to Ontario. Can ada 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 re al 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 guideline s on taking jurisdiction. However, in
83 Ibid at para 103.
84 See, 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.
85 Civil Code of Quebec [CC Q].
86 Canada 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 Cana dian Cla ss Action Rev iew
Spar Aerospace, Lebel J rejected suggestions that a plaintiff must prove a
real and substant ial connection in addition to the cr iteria in the relevant
articles of the CCQ. Rather, Lebel J stated t hat:
[l]ooking at the wording of art. 3148 itself, it is arguable that the notion
of a “real and subst antial connection” is al ready subsumed under t he
provisions of ar t. 3148(3), given that each of the grounds li sted (fault,
injurious act, da mage, contract) seems to be an example of a “real and
substanti al connection” between the prov ince of Quebec and the action
. . . from my exami nation of the system of rule s found in Book Ten, it
seems that t he “real and substa ntial connection” criter ion is captured
in other provision s, to safeguard agai nst the improper ass umption of
jurisd iction.87
In Spar Aerospace, Lebel J continued to recognize that the doctrine of
forum non convenie ns as codif‌ied in article 3135 serves as an important
counterweight against too categorically taking jur isdiction 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 ca se 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, t he authority to take jurisdiction is less straightforward. The
article lists f‌ive grounds under which Quebec authorities could a ssume
jurisdiction in such actions:
1) the defendant ha s his domicile or residence in Québec;
87 Spar Aerospace, above note 86 at paras 56–57.
88 Ibid at para 57.
89 CCQ, above note 85, art 3134.
90 Ibid, art 307.
91 Anvil QCCA, ab ove note 4 at para 9; Anvil QCCS, above note 4 at para 13.
Volume 9, No 2, February 2014 255
2) the defendant i s a legal person, is not domici led in Québec but has
an establi shment in Québec, and the di spute relates to its act ivities
in Québec;
3) a fault was committe d in Québec, damage wa s 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 part ies have by agreement submit ted to it all existi ng or future
disputes bet ween themselves aris ing out of a specif‌ied legal relation-
5) the defendant submit s to its jurisdiction.
However, a Québec authority ha s no jurisdiction where t he parties,
by agreement, have cho sen to submit all exi sting or future dis putes be-
tween thems elves relating to a spe cif‌ied legal relationsh ip to a foreign
authority or to an arbit rator, unless the defendant submits to the juris -
diction of the Québec aut hority.92
The f‌irst connecting factor is pract ically identical to art icle 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 cour t 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,
92 CCQ, above note 85, art 3148.
93 The 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 Cana dian Cla ss Action Rev iew
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 exi st at the time
of the facts underlying t he 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 Convergia 94 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 establi shment 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. Addit ionally, Forget J stated:
I do not think it is nece ssary in t his case to aff‌i rm, absolutely, that the
two conditions of sect ion 3148(2) C.C.Q. must exist at the t ime of the facts
underlying res ponsibility or at the t ime of the institution of t he action
or both. However, the total abs ence 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 w rongful conduct suggested as a criterion by
Anvil is less material than the extent to which the second criter ion is
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 establi shment 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 — hal f 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 mai ntaining 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.
94 Rees v Convergia, 2005 QCCA 353.
95 Ibid at para 48.
96 Anvil QCCA, above note 4 at par as 78–79.
Volume 9, No 2, February 2014 257
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 cl aimed that be-
cause Anvil’s only operations involved the exploitation of the Dikulushi
Mine in the DRC, its activities in Quebec were necessar ily 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 mass acre 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 ha s been recognized that article
3148 “establishes a broad ba sis for f‌inding jurisd iction.”100 As a result,
Quebec authorities and the SCC have been quite liberal in their i nter-
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 v Herzo g,
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 activ ity 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
97 Ibid at paras 83 –86; see also Anvil QCC S, above note 4 at paras 17–29.
98 Anvil QCCS, above note 4 at para 29.
99 Ibid at para 27.
100 Spar Aerospace, above note 86 at paras 31 and 57–61.
101 Ibid at para 57.
102 Interinvest, ab ove note 93 at para 41.
258 The Cana dian Cla ss Action Rev iew
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 di spute 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 h ave 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 lea st 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 crime s 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, t he 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 con sideration
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 th at 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 suf fered in Quebec.
103 Anvil QCC A, above note 4 at paras 89 and 93.
104 CCQ, above note 85, art 3148(3).
Volume 9, No 2, February 2014 259
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 t he one
which was carr ied out at Kilwa. Implicit in this underst anding 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 t hat
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. Alter natively,
if a foreign plaintif f class could show that the defendant in Quebec made
a conscious decision, which was i ntended to have the consequence of
creating the harm suffered, the Quebec authorities might assume juri s-
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 man agerial decision to conduct or support
such actions in order to cause the complained of harm. In both of these
scenarios, it would probably be necess ary to prove that the decision or
negligent non-decision was or should have been taken by the defendant
in Quebec. However, these grounds are unte sted, and ultimately a Que-
bec authority’s decision in assuming jurisd iction or not will necessar ily
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 jur isdiction 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 di spute in exceptional circumst ances.
105 Spar Aerospace, above note 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 Cana dian Cla ss Action Rev iew
2) The forum non conveniens: Ar ticle 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 exceptional ly and on an application by a par ty, 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 requirement s. 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 doctr ine 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 Gm bH.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 r ules and purposes of cl ass 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).
107 Spar Aerospace, above note 86 at para 71.
Volume 9, No 2, February 2014 261
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 emphasi zed 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 th at the defendant has cle arly estab-
lished that t he circumstance s of the case as a whole allow t he court to
f‌ind that a foreign cour t or a court in anot her province is a more appro-
priate forum, t he court may stay the procee ding in Quebec by decid ing
that it must inste ad be commenced or continued outside t he territoria l
jurisdict ion of the Quebec courts.110
The burden is on the defendant applying for the di smissal on thi s doc-
trine to show both “that t he Quebec court is clearly less appropri ate,
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 jur isdiction but dismis sed the action on the basis of the
forum non convenie ns 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-
ministrat ion of justice is in such a state of disarray that it would consti-
tute an injustice to the vict ims 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 cour ts 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 dism issed the action on the
108 Ibid 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].
110 Ibid at p 68.
111 Rudolf Keller SR L c Banque Laurentienne du Can ada, 2003 CanLII 34 078 at para
62 (QC CS).
112 Recherches Internationales Québec v Cambior Inc, [1998] Q J No 2554 at paras
1–2 (SC) [Cambior].
113 Ibid at pa ra 12.
114 Ibid at par a 9.
262 The Cana dian Cla ss Action Rev iew
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 t hat “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 Intern ational Law” that:
The starting p oint should be the principle th at 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 cou rts must f‌ind a bal-
ance between the adv antages and disadvant ages for the parties when the
plaintif f chooses a Quebec court . They should only decline juris diction
if the bala nce tilts toward the foreign court.118
Considering the three purposes of cla ss 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 bri ng-
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 sig nif‌icant expense in both time and money trying their
case in their home jur isdiction 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 t he dispute has a suff‌ic ient connection with Qué-
bec, where proceedi ngs cannot possibly be instit uted outside Québec or
115 Anvil QCCS, ab ove note 4 at para 39.
116 Anvil QCCA, ab ove note 4 at para 95.
117 Spar 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 2014 263
where the instit ution of such proceedings outs ide 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 appe aling 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 represent s
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 ar ticle 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 t he circumstances, to require the plaintiff
to attempt to do so. In Lamborghini, LeBel J re stricted this aspect to deal
with problems of access to just ice, for a litigant who is in Quebec, when
the foreign forum that usually has jurisdiction is inaccessible to him for
exceptional reason s.122 Justice LeBel imagined t he types of cases where
the forum of necessity doct rine 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 act ion. 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.
120 Anvil QCCA, above note 4 at p ara 98, citing Lamborghini, above n ote 109.
121 Spar Aerospace, above note 86 at para 64.
122 Anvil QCCA, above note 4 at p ara 98, citing Lamborghini, above n ote 109.
123 Ibid.
264 The Cana dian Cla ss Action Rev iew
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 cl ass was from Kilwa in the DRC, but because the
victims could sti ll have pursued justice either in t he civilian court s 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 dismis sal of the case on the notion of
forum non convenie ns. Therefore, while the task m ay not be impossible, a
proposed foreign class faces a steep climb with ma ny obstacles in h aving
its case heard i n Quebec.
4) Jurisdiction Rules under the Common Law
Ontario’s rules for taking jurisdiction were reformul ated 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-
celles127 at 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.
125 Anvil QCCA, above note 4 at p ara 103.
126 Ibid at paras 100 –2.
127 Muscutt 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 2014 265
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.128 On 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 a nd substantial connection prima facie between
the dispute and the Ont ario 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) t he tort was committed in the province; and
(d) a contract connected with the dispute was m ade 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 jurisd iction
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 t he 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).
128 2010 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.
131 Ibid at p ara 80.
132 Ibid at para 91.
266 The Cana dian Cla ss Action Rev iew
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 expand ing the ability of
courts to assume jurisdiction:
If, however, no recognized pre sumptive connecting f actor — whether
listed or new — applies, t he effect of the common law real and subst an-
tial connect ion test is that the cour t should not assume juris diction. In
particul ar, a court should not assume juri sdiction on the basi s of the
combined effect of a number of non-pre sumptive connecting factors.
That would open the door to ass umptions of jurisd iction 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 convenie ns
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 Bre da 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 stand ard of
showing that the alter native 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 c ases, and its purpose is
to ensure that both parties are treated fairly and that the process for re-
133 Ibid at para 92.
134 Ibid at paras 81 and 95–97.
135 Ibid at par a 93.
136 Ibid at para 103.
137 Ibid at par a 108.
Volume 9, No 2, February 2014 267
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 t he litigation or on related or par allel
proceedings, t he possibility of conf‌l icting judgments, problem s relat-
ed to the recognit ion and enforcement of judgments, and t he 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 en suring eff‌iciency in dispute resolution.
These underlying goals a re compatible with the fundamental pur poses of
certify ing class proceedings in the f‌irst place.
6) The Forum of Necessity
However, the SCC in Van B red a 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 for um in which the plaint iff can reas onably
seek relief, there i s a residual disc retion to assume juri sdiction. In my
view, the overriding concern for access to justice t hat motivates the as -
sumption of juris diction despite inadeq uate connection with the for um
should be accommodated by e xplicit 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 guid ing SCC authority on the common law forum of
necessity doctr ine, Sharpe J’s contemplation of the principle seem s 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 jurisdict ion in international cases
are neither clear nor static. In Quebec, the CCQ is subject to changing
138 Ibid at para 105.
139 Ibid at para 110.
140 Va n Bre da ONCA, above note 128 at par a 100.
268 The Cana dian Cla ss Action Rev iew
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 jur isdic-
tions more necessar y. This overview does not purport to be a compre-
hensive review or decisive statement of the rules regarding the t aking
of international jur isdiction by Quebec or Ontario authorities. Rather,
it intends, in the context of foreign cla sses bringing actions in Canadian
courts for harms suffered internationally, to outline some of the many
obstacles to justice faced by such proposed classes.
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 Spar Aeros pace,
Van Breda, and other cases, the Supreme Court of Can ada has discu ssed
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 Canad a 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 jur isdiction in international disputes.
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 recogn ize that Quebec has jurisdiction
Volume 9, No 2, February 2014 269
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 CA AI.
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 purpose s underlying class proceedings — judicial economy,
access to justice, and beh aviour modif‌ication — seem to support foreign
classes seeking corrective justice in Canadian courts. The potential ben-
ef‌its support notions of justice global ly. Compensation and fairness for
victims of wrongs committed by transnational corporations are cr itical
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 harmoni ze 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 substant ial 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. Ontar io
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 connect ion 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-
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 direct ion, take jurisdiction to hear the
case. Nor was there suff‌icient connection or the impossibility of accessing
141 Anvil QCCA, a bove note 4 at para 104.
270 The Cana dian Cla ss Action Rev iew
justice in a more appropriate forum, which may have made Quebec a
forum of necessity. This was cert ainly a disappointing end to a diff‌icult
struggle; the Kilwa victims are still without justice almost a decade after
their horrendous suffer ing. Yet, the pursuit of global justice is not with-
out hope. Given the appropriate factual matr ix, Canadian cour ts will
have to, in the right circum stances, hear the ca ses of foreign plaintiff
classes who h ave suffered harms internat ionally, in order to allow justice
to be done.

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