Canada: Conflict Of Laws - The Supreme Court Of Canada Refuses To Hear Case Concerning The Kilwa Incident

Last Updated: November 28 2012

Contributed by Justin Seitz

In October 2004 a group calling itself the Revolutionary Movement for the Liberation of Katanga staged a small-scale uprising in the small town of Kilwa, in the Democratic Republic of Congo. Despite no resistance from the rebels, the Congolese Armed Forces responded by mercilessly killing up to 100 unarmed civilians, including women and children. The actions of the Congolese Army amounted to gross human rights violations.

You may be wondering what this atrocity has to do with Canada; the answer is Anvil Mining Limited. Anvil is a Canadian company with its headquarters in Montreal. At the time of the incident the Canadian company was operating the Dikulushi Mine near the town of Kilwa. It is alleged that Anvil provided the Congolese Army with logistical support, including food, shelter, planes, trucks, and drivers for transporting soldiers to the isolated town of Kilwa. These same vehicles were then used to remove people who had been arbitrarily detained from the town, as well as to remove corpses. Anvil denied any involvement in the response by the Congolese Army and asserted that it did not have any prior knowledge of Congolese Army's response.  

On behalf of the families of the victims, a coalition of human rights groups and non-government organizations, the Canadian Association against Impunity (CAII), filed a class action suit in November 2010 against Anvil in for its alleged involvement in the massacre. Anvil denied any wrongdoing, and the case proceeded through the lower courts. In April 2011 the Québec Superior Court ruled the case could proceed to the class certification stage.

However, this ruling was overturned by the Québec Court of Appeal in January of 2012 on the basis of forum non conveniens; the Court of Appeal ruled that Anvil's Montreal office was not involved in the decision-making that led to the Kilwa incident, and therefore found that Québec was not the proper place to hear the case. It also noted that the families of the victims could have sought relief in the Congo or Australia where the company also operated.

The CAII then brought an application to the Supreme Court of Canada for leave to appeal January 2012 decision; the CAII was claiming that the appeal court ignored evidence that there was no access to justice in other countries, and that the Québec Court of Appeal's decision on that provinces jurisdiction was unnecessarily restrictive.  

A ruling on this matter might have had serious implications for Canadian companies with respect to their liability in Canadian courts for their alleged tortious conduct in foreign countries.  

However, on November 1, 2012, the Supreme Court of Canada refused to hear the appeal and the justices gave no reasons for their decision. The families of the victims have lost their last chance at suing Anvil in Canada. It appears that, for the time being, Amchem Products Inc v British Columbia (Workers' Compensation Board) [1993] 1 SCR 897 is the leading authority in Canada when it comes to forum non conveniens; the test is still the 'real and substantial connection test'. The Supreme Court of Canada was careful to point out that decisions regarding whether or not to decline jurisdiction are largely a discretionary matter, and that there can be more than one 'natural forum'. One wonders if the Supreme Court of Canada would have decided to hear the appeal if Canada, and in particular Québec, were the only jurisdictions left in which the families of the victims could have sought relief.  

In March 2012, Anvil Mining Limited was acquired by Minmetals Resources Limited (now MMG Limited).  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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