In this decision, the Québec Court of Appeal (QCCA) clarified the circumstances in which courts can hear a dispute based on events that take place or have an impact in more than one jurisdiction.
The QCCA confirmed that assumption of jurisdiction requires a significant nexus between the forum seized of a dispute and either the subject matter of the litigation or the defendant. The decision is of particular relevance in our globalized environment, where corporations operate in a number of jurisdictions around the world.
The Association canadienne contre l'impunité© (ACCI), an association comprised of five NGOs based in Canada and abroad, sought to file a class action in Québec against Anvil Mining Limited (Anvil). The action was based on events that took place in October 2004 in the Democratic Republic of the Congo (DRC) where Anvil, a company headquartered in Australia, was operating a silver-and-copper mine. The allegations centered on the role allegedly played by Anvil during the DRC military's repression of an insurrection in the town of Kilwa, located 50 kilometres from Anvil's mining operations, in October 2004. The events on which the ACCI's proposed action was based had already been the subject of legal proceedings in the DRC and Australia.
The only factor connecting Anvil to Québec was that it had opened a small office in Montreal in 2005, six months after the DRC events. The ACCI was therefore seeking to commence an action on behalf of foreign nationals, against a foreign-based defendant, on the basis of alleged faults committed exclusively outside Québec at a time when the foreign defendant did not have any presence in Québec and in reparation of harm suffered abroad.
The Québec Superior Court (QCCS) initially denied Anvil's motion to dismiss the ACCI's action for lack of jurisdiction.1 The QCCS concluded that the applicable jurisdiction test in the Civil Code of Québec (Code) (defendant established in Québec and "dispute relate[d] to its activities in Québec - see article 3148(2)) was satisfied even where all the alleged facts of the dispute occurred abroad at a time when the defendant had no presence in Québec . The QCCS held that Anvil's subsequent Québec activities were "necessarily linked" to the exploitation of a mine in the DRC and, therefore, to the events at issue, since mining was Anvil's only, or main, activity. On appeal, Anvil contended that the QCCS had neglected to consider the policy underlying the rules of jurisdiction and the need for a nexus between the dispute and the jurisdiction in which the case is heard. The QCCA agreed with Anvil and dismissed the action filed against it for want of jurisdiction.2 The QCCA held that the test for jurisdiction could not be satisfied in this case given the lack of an establishment in Québec and of any activities in Québec at the time of the events giving rise to the dispute.
The QCCA also held that on the facts of the case, the ACCI had failed to meet its burden under the "forum of necessity" doctrine. Article 3136 of the Code provides that Québec can be forum of necessity in a situation where "the dispute has a sufficient connection with Québec " and where a demonstration is made that "proceedings cannot possibly be instituted outside Québec " or "cannot reasonably be required." In this context, the absence of any links whatsoever between the dispute and Québec and the existence of previous proceedings related to the same events against Anvil in two different jurisdictions were determinative.
See also Club Resorts Ltd. v. Van Breda, described in the Conflicts and Jurisdiction section of this publication.
Footnotes
1. Association canadienne contre impunite© (ACCI) c. Anvil Mining Ltd., 2011 QCCS 1966.
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