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
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
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
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
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)  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).
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