2012 QCCA 117, 2012 QCCA 117

Unofficial English Translation Anvil Mining Ltd. c. Association canadienne contre l'impunité 2012 QCCA 117 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-021701-115 (500-06-000530-101) DATE: January 24, 2012 CORAM: THE HONOURABLE ANDRÉ FORGET, J.A. LORNE GIROUX, J.A. RICHARD WAGNER, J.A. ANVIL MINING LIMITED, APPELLANT – Respondent v. ASSOCIATION CANADIENNE CONTRE L'IMPUNITÉ, RESPONDENT – Plaintiff JUDGMENT [ 1 ] THE COURT; - On appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Benoît Émery), rendered on April 27, 2011, which dismissed a motion for declinatory exception based on absence of jurisdiction, and subsidiarily, on the doctrine of forum non conveniens ; [ 2 ] For the reasons of Forget, J.A., with which Giroux and Wagner, JJ.A. agree; [ 3 ] ALLOWS the appeal, without costs. [ 4 ] QUASHES the judgment under appeal; [ 5 ] ALLOWS the motion for declinatory exception; [ 6 ] DISMISSES the motion for authorization to bring a class action, without costs, on the grounds that the Superior Court of Quebec does not have jurisdiction over the dispute. ANDRÉ FORGET, J.A.

LORNE GIROUX, J.A. RICHARD WAGNER, J.A. Mtre Jean-François Lehoux Mtre Pierre-Jérôme Bouchard McCARTHY, TÉTRAULT LLP For the Appellant Mtre Bruce Johnston Mtre Philippe Hubert Trudel

TRUDEL & JOHNSTON For the respondent Date of hearing: November 25, 2011 REASONS OF FORGET, J.A. [ 7 ] In the court below, the Association canadienne contre l'impunité ("ACCI") filed a motion for authorization to bring a class action against Anvil Mining Limited ("Anvil") on behalf of the following group of persons: [translation] All persons who have lost a family member, who were victims of abuse, whose property was plundered, or who had to flee the town of Kilwa in October of 2004, as a result of the unlawful actions of the Armed forces of the Democratic Republic of Congo; [ 8 ] It is not contested that the faults alleged were committed in the Democratic Republic of Congo (DRC) or that the damages were sustained in that country, where all the members of the group contemplated in the class action reside. [ 9 ] It is also acknowledged that Anvil's head office is in Perth, Australia. [ 10 ] To establish the international jurisdiction of Quebec’s courts, the ACCI argues article 3148(2) C.C.Q. : 3148.

In personal actions of a patrimonial nature, a Québec authority has jurisdiction where: 1) ... 2) the defendant is a legal person, is not domiciled in Québec but has an establishment in Québec, and the dispute relates to its activities in Québec; [ 11 ] In the court below, Anvil presented a motion for declinatory exception on the grounds that the dispute is not related to its activities in Quebec ; it argued, moreover, that it did not have any establishment or activities in Quebec in October of 2004. [ 12 ] In the alternative, Anvil argued that if Quebec courts do have jurisdiction, the Superior Court should nevertheless decline it pursuant to the doctrine of forum non conveniens under

article 3135 C.C.Q. 3135. Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide. [ 13 ] The trial judge did not accept Anvil's arguments on jurisdiction or forum non conveniens and dismissed the motion for a declinatory exception. [ 14 ] In light of his findings, the trial judge did not find it useful to address the doctrine of the "forum of necessity" within the meaning of

article 3136 C.C.Q. : 3136. Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Québec, where proceedings cannot possibly be instituted outside Québec or where the institution of such proceedings outside Québec cannot reasonably be required. [ 15 ] Anvil has received leave to appeal that judgment from a judge of this Court. THE PARTIES [ 16 ] Anvil is a mining company constituted on January 8, 2004, under the Business Corporation Act of the North West Territories of Canada.

Its head office is in Perth, Australia, as previously mentioned. Anvil's sole activity is to mine copper near Dikulushi, in the DRC. [ 17 ] Since June 1, 2005, Anvil has had a place of business in Montreal, a small office (170 ft. 2 ), where Robert Lavallière works. [ 18 ] Lavallière employs a part-time administrative assistant. [ 19 ] His main responsibility is maintaining relationships with investors and the company's shareholders. [ 20 ] In its motion for authorization, the ACCI describes itself as follows: [translation] 2.9 The Association Canadienne contre l'impunité is a company incorporated under

Part III of the Quebec Companies Act (R.S.Q.,

c. C-38, s. 218); 2.10 The ACCI was the result of a joint initiative by the following five non-governmental organizations: the Association contre l'impunité pour les droits humains (" ACIDH "), the Association Africaine de défense des droits de l'homme (" ASADHO "), the Centre canadien pour la justice internationale (" CCJI "), Global Witness, and Rights and Accountability in Development (" RAID ").

The ACCI was set up to bring this class action, among other things; 2.11 The ACCI's mission is described in its letters patent: To assist the victims of faults committed by corporations or individuals in countries where the judicial system prevents reasonable access to justice. To represent, in a class action suit, the interests of the victims of the events that unfolded in Kilwa, in the Democratic Republic of Congo, in 2004.

The whole as appears from the letters patent, exhibit R-7; THE EVENTS OF KILWA [ 21 ] On October 13, 2004, a small group of armed individuals from neighbouring Zambia, claiming to act on behalf of the Mouvement révolutionnaire pour la libération du Katanga [Revolutionary Movement for the Liberation of Katanga], entered the town of Kilwa and proclaimed Katanga's independence. [ 22 ] In the days that followed, the Congolese government ordered the army's officers to drive these individuals out and take back control of the town of Kilwa. [ 23 ] This town is situated about 55 kilometres from the mine operated by Anvil. [ 24 ] The Congolese Military High Court asserts that the fighting yielded only a few deaths or casualties on either side. [ 25 ] The United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), however, asserts that the armed forces engaged in a veritable slaughter by summarily executing people and plundering the property of the inhabitants.

According to this mission, about 70 or 80 civilians were killed. [ 26 ] According to the allegations of the ACCI, Anvil provided the military with logistical help during these events. After evacuating part of its personnel on planes to Lumbumbashi, it allegedly used the return flight to transport troops to Kilwa, made trucks and drivers available to the armed forces, and supplied food rations and fuel.

The trial and appeal before the Congolese military courts [ 27 ] In 2007, after repeated pressure from MONUSCO, seven members of the military and three Anvil executives who were involved in the events were tried for war crimes before the Congolese military court of the province of Katanga. [ 28 ] Some of the victims of the events of Kilwa became civilian parties seeking damages between US$10,000 and US$100,000, as the case may be. [ 29 ] Two members of the military were convicted (of murder but not of war crimes), all the other accused were acquitted, and the victims, who were civilians, did not receive any compensation. [ 30 ] Louise Arbour, United Nations High Commissioner for Human Rights at the time, made her concerns known following the trial judgment: … I am concerned at the court’s conclusions that the events in Kilwa were the accidental results of fighting, despite the presence at the trial of substantial eye-witness testimony and material evidence pointing to the commission of serious and deliberate human rights violations”, said the High Commissioner.

"I am pleased that an appellate instance will have the opportunity to revisit these findings. I urge the appeal court to fully and fairly weigh all the evidence before it reaches the appropriate conclusions that justice and the rights of the victims demand." The High Commissioner also encouraged all competent authorities in the DRC to use all available legal means to bring justice to the victims of Kilwa. … The High Commissioner criticized the military court's assumption of jurisdiction over civilians in this case.

"It is inappropriate and contrary to the DRC's international obligations for military courts to try civilians. While military personnel can in principle be charged by court martial, civilians may not - they should be tried before fair and independent civilian courts." [1] [ 31 ] On appeal before the Congolese Military High Court, both members of the military who had been convicted saw their sentences reduced and were reintegrated into the army. Every acquittal was maintained.

The appeal by the civilian parties was declared inadmissible. [ 32 ] Before the Superior Court, Anvil filed a sworn statement by Professor Raphaël Nyabirungu, an attorney in Kinshasa, who

deemed that the conditions for a fair trial had been met in first instance and on appeal. Professor Nyabirungu is of the opinion that the victims could have appealed their case to the Supreme Court of Justice, which they did not do. [ 33 ] The Office of the United Nations High Commissioner for Human Rights (OHCHR) is of a different view: 869. The judicial decisions made during the Kilwa case are an illustration of the lack of impartiality and independence within the military justice system.

The Court has clearly demonstrated its bias in favour of the accused, exonerating Colonel Adémar of most of the murder charges made by the military prosecutor, either against himpersonally or against him as the commander of the perpetrators of these murders. No reference was made in the judgement to international law as it pertains to war crimes.

Throughout this case, political interference, a lack of co-operation on the part of the military authorities and many irregularities 1514 were observed. [2] Australian proceedings [ 34 ] In 2007, a class action was brought in Australia on behalf of the victims of the events that occurred in Kilwa. At the outset of the proceedings, Anvil petitioned for access to information relating to the mandate given to the victims' counsel, particularly with respect to any fee agreements.

The judge granted the request. [3] [ 35 ] The NGO representative was unable to meet with the victims to receive their instructions for counsel. According to the allegations in the ACCI's motion, the Congolese government impeded the movements of the victims and members of the NGO. NGO members allegedly received death threats, prompting the victims and those supporting them to give up. [ 36 ] The NGO representative explained these facts to the Australian court. [4] [ 37 ] The Australian firm Slater & Gordon, which had taken on the case, ultimately withdrew.

According to the ACCI's allegations, despite their efforts, the victims were unable to find other attorneys willing to represent them in Australia. [ 38 ] Anvil provided a sworn statement from Australian attorney S.K. Dharmananda (Senior Counsel), who expressed the following opinion: 39. As discussed above, the identified plaintiffs could bring an action in negligence in the SCWA.

This is confirmed by the proceedings of pre-action discovery, referred to above, which show that a cause of action for negligence against Anvil related to the events at Kilwa in 2004 can be persued. [ 39 ] In another sworn statement, he claims not to have all the information necessary to determine whether the victims' action is prescribed. [ 40 ] Counsel for Anvil argue that it was difficult for their expert to determine prescription in Australia when the action has yet to be brought. [ 41 ] They also point out that in this dispute the ACCI intends to invoke Congolese law, which sets out a thirty-year prescription.

We do not know if the situation would be different in Australia. JUDGMENT UNDER APPEAL [ 42 ] The trial judge reiterated the principles: the ACCI must establish that Anvil has an establishment in Quebec and that the dispute relates to its activities in Quebec. [ 43 ] The judge did not accept Anvil's argument that the establishment in question must exist at the time of the facts giving rise to liability. He asserted that this alleged requirement is not in keeping with the rule of law, but that, in his view, this Court stated in Rees v.

Convergia [5] that the establishment referred to in article 3148(2) must exist when the action is brought. [ 44 ] The judge was of the opinion that he had to decide [ translation] "whether the dispute relates to Anvil's establishment in Place Ville-Marie, Montreal, within the meaning of article 3148(2) C.C.Q ." He recalled that in Interinvest (Bermuda) , [6] the Court of Appeal determined that the

interpretation to be given to the words "the dispute relates to its activities in Quebec" from article 3148(2) C.C.Q. should be [translation ] “ a foreign legal person with an establishment in Quebec can be sued in Quebec if the dispute relates to its activities in Quebec, despite the fact that the decisions respecting these activities were not made by the Quebec establishment”. [ 45 ] The trial judge applied this principle to the facts of the case as follows: [translation] [29] It appears that the role of Robert LaVallière, the vice-president of corporate affairs at Anvil in Montreal, was necessarily connected to the Dikulushi mining operation in Congo since that was Anvil's main, if not its sole, activity.

Whether travelling to Congo to foster relationships with local government or staying in Montreal to encourage the business community to invest in the company, Robert Lavallière's activities were necessarily connected to the Congolese mining operation in October of 2004 when local employees, whether voluntarily or involuntarily, allegedly provided logistical support to the army to counter the insurrection in Kilwa. The Court recalls that case law has often reasserted the broad basis for jurisdiction set out in

article 3148 C.C.Q. , subject to the courts’ intervening on the basis of

article 3135 if the connection is neither real nor substantial. [ 46 ] Having established the jurisdiction of Quebec courts, the trial judge considered the forum non conveniens exception raised by Anvil. He found that Anvil was not in a position to identify whether the DRC or Australia would be the most appropriate forum.

[ 47 ] The trial judge noted that the events gave rise to proceedings in both jurisdictions and that in both jurisdictions the victims encountered significant difficulties. He seemed to be of the opinion that the contradictory evidence did not support a finding that the victims had received a fair and equitable trial in the DRC.

Furthermore, according to the victims, it is no longer possible to be heard in Australia because there are no attorneys willing to take their case. [ 48 ] The judge therefore found that Anvil had not proved that a foreign jurisdiction was clearly more appropriate than Quebec to rule on the dispute. [ 49 ] In light of these findings, the trial judge did not find it useful to rule on the "forum of necessity" (3136 C.C.Q. ) ISSUES [ 50 ] The appeal raises the three following questions:

(1) Did the trial judge err in law by concluding that Quebec authorities had jurisdiction under 3148(2) C.C.Q. ?

(2) If Quebec authorities have jurisdiction under article 3148(2) C.C.Q. , did the judge err in failing to decline jurisdiction under

article 3135 C.C.Q. in favour of Congolese or Australian authorities? [ 51 ] If Quebec authorities do not have jurisdiction under article 3148(2) C.C.Q. , do they have it under

article 3136 C.C.Q. (forum of necessity)? ANALYSIS Jurisdiction under article 3148(2) C.C.Q. [ 52 ] The rules concerning the international jurisdiction of Quebec authorities are set out under articles 3134 to 3154 of the Civil Code of Québec . [ 53 ] Spar Aerospace Ltd. v. American Mobile Satellite Corp. , [7] rendered by the Supreme Court, is a leading case on the subject. [ 54 ] Although that judgment discusses the third paragraph of

article 3148 C.C.Q. , [8] LeBel J. sets out guiding principles respecting Quebec's international jurisdiction. [ 55 ] First, LeBel J. recalls the basis for private international law: [21] The three principles of comity, order and fairness serve to guide the determination of the principal private international law issues: jurisdiction simpliciter, forum non conveniens, choice of law, and recognition of foreign judgments.

Given that these three principles are at the heart of the private international legal order, it is not surprising that the various issues are interrelated. ... [ 56 ] LeBel J. deems that we should not stray from these principles when interpreting the relevant provisions, even though they are not binding: [23] As the basic rules of private international law are codified in Quebec, courts must interpret those rules by first examining the specific wording of the provisions of the C.C.Q. and then inquiring whether or not their

interpretation is consistent with the principles which underlie the rules . Given that the provisions of the C.C.Q . and of the C.C.P . do not refer directly to the principles of comity, order and fairness, and that the principles are at best, vaguely defined, it is important to emphasize that these principles are not binding rules in themselves. Instead, they inspire the

interpretation of the various private international law rules and reinforce the interconnected nature of the issues. (For a discussion on the relationships between the various private international law rules, see: J.A. Talpis, “ If I am from Grand-Mère, Why Am I Being Sued in Texas? Responding to Inappropriate Foreign Jurisdiction in Quebec-United States Crossborder Litigation (2001) at pp. 22 and 43-69). ... (Emphasis added.) [ 57 ] LeBel J. then uses the "real and substantial connection" test to determine the international jurisdiction of Quebec authorities.

He notes that the Supreme Court has always acknowledged the importance of this test, notably in Morguard and Hunt , [9] particularly in an interprovincial context: [51] I agree with the appellants that Morguard and Hunt establish that it is a constitutional imperative that Canadian courts can assume jurisdiction only where a “real and substantial connection” exists: see La Forest J. in Hunt, supra , at p. 328: “courts are required, by constitutional restraints , to assume jurisdiction only where there are real and substantial connections to that place” (emphasis added).

However, it is important to emphasize that Morguard and Hunt were decided in the context of interprovincial jurisdictional disputes. In my opinion, the specific findings of these decisions cannot easily be extended beyond this context.

In particular, the two cases resulted in the enhancing or even broadening of the principles of reciprocity and speak directly to the context of interprovincial comity within the structure of the Canadian federation; see Morguard , supra , at p. 1109, and Hunt , supra , at p. 328. [ 58 ] LeBel J. expresses the opinion that this test is implicitly included in the provisions of the Civil Code of Québec : [56] Looking at the wording of art. 3148 itself, it is arguable that the notion of a “real and substantial connection” is already subsumed

under the provisions of art. 3148(3), given that each of the grounds listed (fault, injurious act, damage, contract) seems to be an example of a “real and substantial connection” between the province of Quebec and the action. Indeed, I am doubtful that a plaintiff who succeeds in proving one of the four grounds for jurisdiction would not be considered to have satisfied the “real and substantial connection” criterion, at least for the purposes of jurisdiction simpliciter. [ 59 ] Concerning the second subparagraph of

article 3148 C.C.Q. specifically, counsel for both parties referred to the judgments in Rosdev , [10] Perez , [11] and Interinvest . [12] [ 60 ] The first decision listed on the subject was Rosdev , rendered in 1994 by Marcellin J. [ 61 ] Rosdev had brought an action in Quebec against Allstate regarding a loan issued to him by Allstate Ontario to refinance a building in Quebec City. [ 62 ] Allstate had an establishment in Quebec, but argued that there was no connection within the meaning of article 3148(2) C.C.Q. since in that province it conducted only insurance activities. [ 63 ] Marcellin J. did not accept this argument: [translation] [18] Allstate submits that the establishment in Quebec does not operate in the area of business financing but only in insurance. [19] It is true that the dispute between the parties is not related to insurance; it is, however, related to Allstate's activities in Quebec. [20] The Court is of the view that by enacting a double requirement in

article 3148 C.C.Q. , the legislature did not intend to connect the activity to the establishment but to the cause of the dispute between the parties. [21] In the case under consideration, even though the dispute between the parties is not connected to the Quebec establishment, the fact remains that Allstate conducts business financing activities in Quebec and this is the type of activity at issue. The two criteria of article 3148(2) are therefore met. ... [24] The evidence reveals that Allstate has an establishment in Quebec, where it has claims and operates various activities.

It therefore possesses several connecting factors and the test in articles 3148(2) and 3148(3) is met. [ 64 ] In Perez , rendered in 2003, Lévesque J. found that it was not enough for the Bank of Nova Scotia to carry on banking activities in Quebec for the Superior Court to have jurisdiction in a dispute concerning a $100,000 deposit in Ontario: [translation] [5] The Bank of Nova Scotia, Scotia Capital Inc. and Scotia McLeod Corporation (hereinafter the defendants, insofar as Scotia McLeod Corporation exists because of a merger) have an establishment in Quebec, but do not conduct activities there relating to the deposit of the $100,000 referred to in the conclusions listed herein above.

Indeed, all the activities between the plaintiffs and the defendants unfolded in Argentina, according to the introductory motion (paragraphs 6 to 8). [6] Moreover, paragraphs 9, 11, and 13 do not indicate that the dispute between the plaintiffs and the defendants relates to its activities in Quebec. [7] On the contrary, paragraphs 7 and 12 refer to activities that took place in Toronto, Ontario. [8] Reference is also made to activities relating to share certificates that are mentioned in the introductory proceeding (in paragraphs 10 and 12 of the Motion to institute proceedings) that relate to share certificates.

These activities occurred outside of Quebec. [9] For there to be a connection justifying the application of article 3148(2) of the Civil Code of Québec , it is not sufficient to assert, as the plaintiffs do while referring to the financial statements filed as an exhibit, that the defendants generally conduct banking and financial activities in Quebec. [10] The plaintiffs have not discharged the burden that was upon them to establish that the dispute relates to activities between the parties in Quebec. [11] The previous statements distinguish the judgments in Rosdev Investments Inc. v.

Allstate Insurance Company of Canada , H.L. Boulton & Co. S.A.C.A. v. Banque Royale du Canada and A.V.S. Technologies Inc. v. Goldstar Co. (Citations omitted.) [ 65 ] In Perez , this Court [13] dismissed the appeal: [1] The appellants have not shown any error in the judgment of first instance. We are of the view that the trial judge has correctly interpreted section 3148 (2) C.C.Q. [ 66 ] In 2009, Interinvest (Bermuda) Limited , rendered by this Court, also addressed the

interpretation and application of article 3148(2) C.C.Q . [ 67 ] First, we note that the "real and substantial connection" with Quebec was indisputable in that case because the business’s centre

of operations was in Montreal, even though its head office was in Bermuda: [translation] [7] Bermuda is affiliated with the respondent Interinvest Counsulting Corporation of Canada Ltd., a legal person with offices inMontreal (in fact, it appears that Interinvest Group’s operational centre is in Montreal in a building called "Interinvest House").

OnBermuda's letterhead the words "affiliated offices in Montreal & Toronto, Canada – Boston, USA – Zurich, Switzerland" appear. [68] Dalphond J.A. went on to review the scholarly commentary and case law, his analysis focussing mainly on the second criterionin article 3148(2) C.C.Q.: [translation] [29] The mere existence of an establishment in Quebec is not sufficient, however, to give jurisdiction to Quebec courts under article3148(2) C.C.Q.; this would be a return to former law, where it was enough for property to be possessed in Quebec (art. 68 C.C.P.).

Thedispute must also relate to the company's activities in Quebec. [30] A controversy appears to exist as to this second element. For some authors, the dispute must relate to Quebec activities that areconducted from the establishment in that province, whereas Professor Glenn, infra, and the case law have shown themselves to be moreopen. [31] In Rosdev Investments Inc. v. Allstate Insurance Company of Canada, (QC CS), J.E. 94-1891 (Sup. Ct.),Marcelin J. appears to be the first judge to analyze the second requirement of article 3148(2).

In that case, Allstate did not dispute that ithad an establishment in Quebec but argued that its only activities there were relating to insurance, whereas the dispute concerned a loanissued to Rosdev, an operation conducted from its head office in Toronto. The judge found that Allstate could nevertheless be sued inQuebec since the dispute related to Allstate's activities in Quebec. For the judge, even though the dispute was not related to the Quebecestablishment, the fact remained that Allstate conducted activities relating to financing in Quebec; ... [32] This

interpretation was criticized on the grounds that it unduly expanded the scope of 3148(2) C.C.Q. because the activity relatedto the dispute did not concern Allstate's establishment in Quebec. [33] Jeffrey Talpis, supra, states the following at p. 24: Where an establishment in Quebec does exist and a dispute arises only partly out of the activities of that establishment, this should besufficient to establish jurisdiction since art. 3148 para. 1(2) C.C.Q. does not require that the activities in question arise solely from theestablishment in Quebec.

It is not, however, proper grounds for jurisdiction over the foreign company under art. 3148 para. 1(2) if thedispute arises out of activities of the parent in Quebec, other than those of the establishment. A contrary result was obtained in RosdevInvestments Inc. v. Allstate Insurance Co. of Canada, but in my opinion, this

interpretation attempts to authorize an expansion which isunwarranted. [34] Gerald Goldstein and Ethel Groffier, Droit international privé, t. 1, (Cowansville, Que.: Yvon Blais, 1998) at 349 and 350, alsoexpress the opinion that the

interpretation favoured in Rosdev is wrong. Aware that the wording of article 3148(2) C.C.Q. allows forsuch an

interpretation since "its" activity could very well be connected to either the establishment or the defendant itself; regardless, theyassert that such an

interpretation would be contrary to the legislator's intent when it enacted this paragraph. They are of the opinion thatthe purpose of this paragraph is to set aside the possession of property as the connecting factor in personal cases of a patrimonial nature(which is the case in

article 68 C.C.P., however).

Finding that Quebec courts have jurisdiction "based on a disconnect between thedefendant's Quebec activities and the presence of an establishment unrelated to this activity" would, according to the authors, be aninterpretation that the legislator intended to preclude. [35] The author Emmanuelli seems to agree with this criticism when he writes in the previously quoted passage: [translation] "thelegal person’s activities giving rise to the dispute must be connected to that legal person's establishment in Quebec". [36] For my part, I find that the view proposed by Marcelin J. must be accepted.

Both criteria must be met, but there is no need for thedecision respecting the activity in dispute to have been made from the Quebec establishment; it is sufficient for the activity in dispute tobe conducted in Quebec and for the defendant to have an establishment there. [37] This is in fact what Professor H.

Patrick Glenn appears to state in his work "Droit international privé", published in La réformedu Code civil, t. 3, Priorités et hypothèques, preuve et prescription, publicité des droits, droit international privé, dispositionstransitoires, texts compiled by the Barreau du Québec and the Chambre des notaires du Québec (Ste-Foy, Que: P.U.L., 1993) 753 at No.89: [translation] Article 3148(2) establishes a new international head of power that is the conducting of activities in Quebec by a legal person with anestablishment there.

It is necessary, however, for the dispute to relate to activities conducted by that legal person in Quebec. Althoughthis head of power is new, it does not entail that the jurisdiction of Quebec authorities is necessarily expanded. In the past, in most cases,this jurisdiction might have been grounded in the presence in Quebec of the said legal person's property; the jurisdiction thus groundedwas not limited to the activities of the legal person in Quebec.

The new head of power requires a more substantial connection betweenthe foreign legal person and Quebec to ground the jurisdiction of Quebec authorities. (Emphasis added.) [38] In this age of globalization and instant communication, electronic and otherwise, it is increasingly difficult to pinpoint whereexactly a decision was made. If certain documents respecting a loan issued to a Quebec borrower are transmitted from a foreign legal

person’s Montreal establishment so that New York can decide, should it be concluded that the loan is connected to the Quebecestablishment's activities or to those of a foreign head office? [39] Similarly, the fact that a financial institution with one or more establishments in Quebec centralizes decisions regarding some ofits activities, major commercial loans for example, in a head office located in Toronto, New York or elsewhere changes nothing to thefact that it conducts this financing activity in Quebec, the province where it has one or more establishments.

Both elements of 3148(2)C.C.Q. are then met; if the institution that is sued in Quebec regarding that loan nevertheless wishes to proceed elsewhere (withouthaving the benefit of arguing a forum selection clause), it will be up to the said institution to convince a Quebec court to declinejurisdiction under 3135 C.C.Q. (forum non conveniens). [40] This

interpretation is certainly more liberal than that of authors who are critical of Rosdev, but it appears more consistent to mewith the generous approach taken by the courts with respect to the other provisions of

article 3148 C.C.Q., its third paragraphspecifically. In Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78 , [2002] 4 S.C.R. 205, LeBel J., on behalfof the Supreme Court, refers to the "broad basis for jurisdiction set out in art. 3148" (paras. 57–59). [41] In closing, a foreign legal person with an establishment in Quebec can be sued there if the dispute relates to its activities inQuebec, even if the decisions regarding those activities are not made at the Quebec establishment.

Both elements required to create asufficient connection with Quebec, within the meaning of 3148(2) C.C.Q., are then present and the connection exceeds the merepresence of property in Quebec since the dispute must also arise from activities conducted in Quebec, as Lévesque J. noted in Perez v.Bank of Nova Scotia, B.E. 2004BI-542 (Sup.

Ct., aff'd by SOQUIJ AZ-04019613, 2004-05-07 (C.A.)). [69] By favouring Marcellin J.'s opinion over that of some authors, counsel for the ACCI argue that Dalphond J.A. implicitlyrejected the analysis of Lévesque J. in Perez, but that is not the case since Dalphond J.A. refers to that decision with approval. [70] We will now apply these principles to the present case. [71] First, it is undisputed that at the time of the events, Anvil neither conducted its activities in Quebec nor had an establishmentthere. [72] Counsel for the ACCI argue that this is irrelevant, since the requirements of article 3148(2) must exist when the remedy isbrought, not when the facts from which liability arises occur.

They argue that, if it were otherwise, a company could simply move itsestablishment after acting wrongfully to avoid an action being brought against it. [73] Counsel for Anvil argues that the trial judge and opposing counsel misunderstood the argument: they do not insist on theabsence of an establishment in Quebec in October of 2004 so much as they do on the absence of any activities in Quebec at the time. [74] The ACCI asserts that, in Rees,[14] this Court found, upon its analysis of the test in article 3148(2) C.C.Q., that the temporalnexus must exist when the proceedings are brought.

Anvil argues that the court did not make this finding and that, in any event, it was anobiter dictum at most. [75] The Rees case considered the application of

article 3149 C.C.Q., which attributes jurisdiction to Quebec authorities in matters ofwork contracts and states that any waiver of this jurisdiction cannot be set up against the worker. [76] Mr. Rees, an American citizen, had been a resident of Montreal and worked in Pointe-Claire for Convergia. After his dismissal,he ended his lease and returned to the United States before bringing his action in Quebec. [77] Rayle, J.A, on behalf of the Court, found that, the temporal nexus in that case should be assessed at the time of the facts and notat the time the action was brought.

She wrote that the situation could have been different under article 3148(2) C.C.Q.: [translation] [47] For the following reasons, I find that the conditions for giving jurisdiction to Quebec authorities are not always assessed whenthe action is brought. It may be enough that these conditions existed when the cause of action arose. This is the case for

article 3149C.C.Q. where the work performance occurred in Quebec. [48] Revisiting

article 3148 C.C.Q,. we observe that the elements attributing jurisdiction set out in numbered paragraphs (1) and (2)(defendant's domicile or residence or a legal person's establishment) must necessarily exist when the action is brought. [49] That is not the case for paragraphs (3), (4) or (5), or in the final paragraph of

article 3148 C.C.Q.

In those cases, the conditionsfor attributing jurisdiction must necessarily have existed before the action was brought. [50] The temporal nexus test is therefore not universal; it is in fact rather exceptional. [78] Whatever the case, I do not believe that it is necessary, for the purposes of this case, to assert without exception that bothconditions of article 3148(2) C.C.Q. must exist when the facts giving rise to liability occur, when the action was brought, or at bothtimes. [79] Yet, the complete lack of an establishment and activities when the facts giving rise to liability occur is certainly a significantelement to determine whether the dispute relates to its activities in Quebec. [80] This is all the more applicable in light of the actions alleged against Anvil. [81] In short, the ACCI argues that Anvil is liable for the damages caused to the members because it was an accomplice in "warcrimes" and "crimes against humanity".

[ 82 ] The following excerpts from the motion for authorization are worth quoting: [translation] 2.105. If Anvil had acted in a reasonably prudent manner to avoid becoming complicit in the crimes that were committed with its help, it would have insisted on receiving a requisition in due form before providing any logistical help to the FARDC; 2.106. If Anvil had acted in a reasonably prudent manner to avoid becoming complicit in the crimes that were committed with its help, it would have insisted in particular on obtaining assurances as to the manner in which the equipment and personnel were to be used; ... 2.167.

It is clear that the abuses committed by the FARDC with the help of Anvil against the population of Kilwa constitute war crimes and that, by being complicit in these crimes, Anvil has incurred its liability under domestic Congolese law; 2.168. Anvil has also violated the Voluntary Principles on Security and Human Rights, drafted in 2000 through a collaboration between the United States, the United Kingdom, businesses from the extraction and energy industry sectors, and certain NGOs (hereinafter the " voluntary principles ", as appears from a copy of the voluntary principles, exhibit R-30 ; 2.179.

From the preceding, it is clear that, through its complicity in the serious crimes committed by the FARDC, Anvil committed several faults that directly caused the damages suffered by the members, thereby incurring its liability; [ 83 ] I have already stated that the main responsibility of Lavallière – Anvil's sole representative in Quebec – was to maintain relationships with investors and shareholders.

It must be said that Anvil is registered on the Toronto Stock Exchange and that its establishment has been situated in Montreal since June of 2005 simply because Lavallière, who resides in Quebec, prefers to work in Montreal over Toronto. [ 84 ] Lavallière is not involved in the management of the mine; in fact, one might even wonder whether the decision to "collaborate" or "not to refuse to collaborate" with military personnel was even connected with the management of the mine. [ 85 ] Anvil's activities in Quebec had absolutely nothing to do with "complicity" to commit "war crimes" or "crimes against humanity" while operating a mine. [ 86 ] It is true that, after assuming his position in June of 2005, Lavallière took

part in certain events that could be described as "crisis management". [ 87 ] This is not sufficient to find that the dispute relates to Anvil's activities in Quebec. Indeed, it would seem that this was the trial judge's understanding: [ translation ] THE COURT: I keep coming back to the same question. But the dispute... Mtre BRUCE JOHNSTON: Yes. THE COURT: ... it doesn’t concern crisis management, it’s about the facts that gave rise to liability, that is, the decision, if there was one, to assist, from a logistical standpoint, the Congolese army. Mtre BRUCE JOHNSTON: Yes.

THE COURT: But I have nothing that ties Mr. Lavallière, and even less so the establishment since it did not exist, to the facts giving rise to liability, because your class action, once again, concerns the fact that the company should not have, no, and so on. Mtre BRUCE JOHNSTON: Yes. THE COURT: It does not concern the bad crisis management that followed. Mtre BRUCE JOHNSTON: No. This is true. THE COURT:

So, what is left to me, you know, between Quebec, in two... Ultimately, in two thousand and four (2004), what do I have left?

Mtre BRUCE JOHNSTON: Well in fact, Your Honour, we are ready to concede that there is nothing, just about nothing, between Quebec and the events giving rise to the dispute in two thousand and four (2004). [ 88 ] I am well aware that during arguments judges may raise questions or objections that they will set aside during their deliberations, but the trial judge's initial reaction seems in keeping with the rule that he had to apply. [ 89 ] In Interinvest (Bermuda) , Dalphond J.A. took a liberal approach to article 3148(2) C.C.Q. , acknowledging that it was not necessary to establish that the decision was made from the Quebec establishment, but adding that this did not relieve the need to demonstrate that the subject of the dispute relates to its activities in Quebec. [ 90 ] Counsel for the ACCI argue that this is a question of fact and that the trial judge's decision on this matter should not be at issue. [ 91 ] With respect, I find that the trial judge failed to connect the dispute to any of Anvil's activities in Quebec and, in so doing, committed an error of law. [ 92 ] In this case, the dispute specifically concerns a form of [translation] "complicity" between Anvil's executives and governmental authorities. [ 93 ] I am unable to find a connection between the faults allegedly committed by the Anvil executives in October of 2004 and any activities allegedly undertaken in Quebec in June of 2005.

I am even less able to find a "real and substantial connection" with Quebec authorities. [ 94 ] I find that article 3148(2) C.C.Q. does not ground jurisdiction for Quebec authorities in this case. FORUM NON CONVENIENS [ 95 ] In light of the fact that Quebec authorities do not have jurisdiction, there is no need to consider this question, although the facts alleged on the subject could indirectly affect the next question. FORUM OF NECESSITY [ 96 ] At this stage, the ACCI reiterates that the victims would be unable to obtain justice in the DRC or to be successful before the Australian courts. [ 97 ] The

interpretation of articles 3135 and 3136 C.C.Q. takes a different, even contrary, approach.

Article 3135 C.C.Q. states that if the Quebec authority has jurisdiction, it may decline it only in exceptional circumstances .

Article 3136 C.C.Q. provides that if the Quebec authority does not have jurisdiction, it may accept it only in exceptional circumstances. [ 98 ] On this subject, LeBel J.A., as he was then, wrote the following in Lamborghini : [15] [translation] According to its legislative history, this provision represents a narrow exception to the usual rules governing jurisdiction. It is not intended to allow a Quebec court to seize a power that it would not otherwise possess.

It is intended to settle issues of access to justice for a litigant on Quebec territory, when the foreign forum that would normally have jurisdiction is unavailable for exceptional reasons such as a nearly absolute legal or practical impossibility. This includes, for example, the breakdown of diplomatic or commercial relations with a foreign State, the need to protect a political refugee, or the existence of a serious physical threat if the debate were to be undertaken before the foreign court.

According to the commentary by the Minister of Justice and a few scholarly analyses, this rule of attribution of legal jurisdiction, drawn from Swiss conflict of law rules, remains exceptional and corresponds specifically to the concept of the forum of necessity. The comments of the Minister of Justice regarding

article 3136 A.R.I.R.C . indicates: [translation] This

article of new law is inspired by the 1987 Swiss Loi fédérale sur le droit international privé ( Federal Law on International Private Law ). The provisions in Title III aim to exhaustively set out the international jurisdiction of Quebec authorities. It was therefore appropriate to establish a new power for Quebec authorities to provide for the case where a foreign proceeding could not be instituted or when it could not be reasonably be required to do so. The dispute must, however, present a sufficient connection with Quebec. This

interpretation was accepted by scholarly commentary. Thus, P. Glenn sees in the jurisdictional rule under

article 3136 C.C.Q. the creation of a forum of necessity: [translation] 74. Forum of necessity. Once again, by following the Swiss model, namely

section 3 of the Loi fédérale sur le droit international privé ,

article 3136 creates a so-called forum "of necessity" in Quebec in cases where foreign proceedings would be impossible or if such

proceedings cannot reasonably be required. This jurisdiction exists even when a Quebec authority would not usually have jurisdiction to hear the dispute. It nevertheless requires that the dispute has "a sufficient connection" with Quebec (article 3136). The forum thus created is subsidiary, but it is done to avoid a denial of justice, not merely to accommodate one of the parties. As examples of this, Swiss law cites the refugee who cannot sue in the country where he or she was persecuted, or the urgent petition that cannot be heard in time abroad.

The Court of Appeal has also acknowledged that Quebec courts may have jurisdiction in matters of custody based on the mere presence of the child in Quebec where there is an immediate, clear, and serious threat” (op. cit. at 744; see also J.A. Talpis and G. Castel, "Interprétation de la règle de droit international privé", in La réforme du Code civil , Barreau du Québec and Chambre des Notaires du Québec (Sainte-Foy, Que.: P.U.L., 1993) at 900–901).

Article 3136 C.C.Q. sets out an exception based on the demonstrated impossibility of obtaining access to the foreign court in a dispute that is sufficiently connected to Quebec. ... (Emphasis added.) [ 99 ] The burden now rests with the ACCI, whereas it used to be with Anvil who argued that Quebec was not a forum conveniens . [ 100 ] Professor Raphaël Nyabirungu expresses the opinion that the victims could have brought their case to the Congolese Supreme Court of Justice.

The ACCI did not present evidence to the contrary but settled for filing reports by international organizations that deplored the unfolding of the proceedings before the military courts . [ 101 ] It may be believed that, in some countries, citizens are not treated fairly and equitably before the courts, according to criteria recognized by the international community, but that is obviously not the case in Australia. In that country, the difficulties result from a lack of collaboration from the Congolese authorities.

There are no elements in the case that would lead one to believe that the situation would be different if the proceeding were to take place in Montreal. [ 102 ] In other words, according to the ACCI’s allegation, the only reason apparently barring the victims from going before the Australian courts – the country where Anvil has its head office and where the decisions alleged by the ACCI were in all likelihood made, unless they were made in the DRC – is the difficulty in convincing counsel to bring proceedings.

No information whatsoever has been presented regarding the steps taken to this end. [ 103 ] To apply the criteria of LeBel, J.A. in Lamborghini , [16] the ACCI has not shown that it would be impossible to gain access to a foreign court and does not establish that the dispute has a sufficient connection with Quebec. CONCLUSION [ 104 ] It is regrettable to note that citizens face such difficulties in obtaining justice.

Despite all the sympathy the victims warrant and the admiration that the commitment of the NGOs within the ACCI deserves, however, I find that the law prevents us from recognizing that Quebec has jurisdiction to hear this class action. [ 105 ] In light of the circumstances, there is no cause to grant costs. ANDRÉ FORGET, J.A.