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

In October 2004, the Armed Forces of the Democratic Republic of the Congo (known in the DCR as the Forces Armées de la République Démocratique du Congo, or FARDC) conducted anti-insurgency operations in the town of Kilwa, Katanga province, DRC. Along the way, with logistical support from Anvil Mining Limited, a Canadian-Australian transnational corporation, the FARDC committed countless atrocities against the innocent civilian townspeople 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 courts raises several interesting questions about the feasibility of a foreign class bringing an action against defendants in Canadian courts. Focusing on Quebec and Ontario, this 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 common law rules of jurisdiction. The Civil Code of Quebec and the common law “real and substantial connection” test do not absolutely foreclose foreign classes from bringing actions in Canada, but they do strictly regulate the situations in which Quebec or Ontario authorities can assume jurisdiction to hear a case. The complementary doctrines of forum non conveniens and forum of necessity become especially relevant in the context of foreign class actions for atrocities committed abroad. This paper is intended as an overview of these important issues.