1. Une pensée d’avance Think Ahead 2012-2013 Formation Continue Faculty of Law Professor Genevieve Saumier Private International Law: Where to Sue after the Supreme Court decision in Club Resorts Ltd. v. Van Breda 29 January 2013

2. International jurisdiction in Quebec  Prior to 1994:  art. 27-28 CCLC  no a priori barrier to suing foreign defendant in Quebec  art. 68 CCP by analogy  Defendant resided or had property in the province  Whole cause of action arose in Quebec  Claim arising from contract made in Quebec  Libel claim related to publication in Quebec

3. International jurisdiction in Quebec  1994: Book X of the new Civil Code of Quebec  Comprehensive codification of private international law  Title I – General provisions  Title II – Choice of law rules  Title III – International jurisdiction rules  Title IV – Effect of foreign decisions

4. International jurisdiction in Quebec  Title III – International Jurisdiction of Quebec Authorities  Exclusive source of rules  Art 68 CCP amended: “Subject to…the provisions of Title X of the Civil Code of Quebec”  Limited to determining proper venue in province  Steep learning curve for jurists in the province  Formation continue still important!

5. International jurisdiction in Quebec  Title III is comprehensive  covers jurisdictional questions in relation to all substantive legal issues found elsewhere in the Civil Code:  “personal actions of a patrimonial nature”  Contractual or extra-contractual disputes  “personal actions of an extra-patrimonial or family nature”  Custody, support, dissolution of civil union, filiation  “real and mixed actions”  Property, successions, matrimonial regime

6. International jurisdiction in Quebec  Basic principles  Jurisdiction is established according to  (i) links to the defendant  (ii) links to the action  (iii) consent of the parties or of the defendant  (iv) exceptionally based on links to the plaintiff  Judicial discretion to decline jurisdiction  New doctrine of forum non conveniens

7. International jurisdiction in Quebec  Jurisdiction based on links to the defendant  General rule: art. 3134  Applicable unless specific rule differs  Based on domicile of the defendant in the province  Natural person = residence + intention (art. 78 )  Legal person = place of head office (art. 307 )

8. International jurisdiction in Quebec: link to defendant  Specific rules:  Contract or extra-contractual claim  Residence of natural person is sufficient (art. 3148(1))  Legal person: establishment + activities (art. 3148(2))  Family matters (except custody)  In most cases, if one of the persons concerned is resident in the province (art. 3141-47 )

9. International jurisdiction in Quebec: links to action  Real action  If property is situated in the province (art. 3152)  Contract or extra-contractual claim (art. 3148(3))  If a fault was committed in Quebec  If damage (préjudice) was suffered in Quebec  If an injurious act occurred in Quebec, or  If one of the obligations arising from a contract was to be performed in Quebec

10. International jurisdiction in Quebec: consent  Express consent of the parties  Forum selection clause  Designating exclusively the courts of Quebec (art. 3148(4))  NB: If parties designated a court outside Quebec or an arbitral tribunal, the Quebec courts have no jurisdiction (3148 in fine)  Implied consent of the defendant  Submission (failure to object or acts inconsistent with objection) (3148(5))

11. International jurisdiction in Quebec: links to the plaintiff For some claims, domicile (and sometimes mere residence) of the plaintiff will be sufficient :  Family matters:  Support (art. 3143)  Dissolution of a civil union (art. 3144)  Effects of mariage or civil union (art. 3145)  Filiation (art. 3147)  Consumer or employment contracts (art. 3149)  Insurance contract (art. 3150)

12. International jurisdiction in Quebec: other bases  Exceptional or limited jurisdiction  Necessity; requires sufficient connection with Quebec (art. 3136)  Provisional or conservatory measures; no jurisdiction over merits required (art. 3138)  Incidental or cross demand; if jurisdiction over principal demand (art. 3139)  Emergency protection of persons or property present in the province (art. 3140)

13. International jurisdiction in Quebec: declining it  Forum non conveniens  Art. 3135: Even though a Quebec 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.  Lis pendens (art. 3137)

14. Effect of Van Breda in Quebec?  Narrow reading: no effect  Decision limited to establishing common law jurisdictional rules for tort claims  Broad reading: may challenge the validity of existing rules of international jurisdiction in Quebec

15. Effect of Van Breda in Quebec?  Implications for Quebec rest with constitutional dimensions of the decision  Limit on the reach of the jurisdiction of a province’s courts  Limit is derived from territorial constraint imposed in s. 92 of the Constitution  Limit sets the outer boundaries

16. Effect of Van Breda in Quebec? First, the good news  LeBel J., writing for unanimous court, states:  Constitutional limit does not impose uniform rules across country  Different solutions and approaches remain possible  Limit does not require that connection with province be strongest possible  Moreover: traditional bases remain valid:  Presence of the defendant  All rules based on links to the defendant  Consent of the parties or of the defendant  rules involving forum selection or arbitration clauses and submission of the defendant

17. Effect of Van Breda in Quebec? First, the good news  Other presumptively valid connecting factors identified in Van Breda support the constitutionality of many rules in the CCQ  Art. 3134 – general jurisdiction based on domicile of defendant  Jurisdiction in civil liability claims based on :  residence of a natural person (art. 3148(1))  carrying on business in the province (art. 3148(2))  a fault committed in or an injury suffered in the province (art. 3148 (3))  a contractual obligation to be performed in the province (art. 3148(3))

18. Effect of Van Breda in Quebec? Next, possible bad news  Recall SCC REJECTED the following presumptive connecting factors for tort claims in Ontario  Presence of the plaintiff in the province  Damage, as distinguished from injury, suffered in the province  ONCA had also rejected necessary party

19. Potential effect of Van Breda on validity of CCQ jurisdictional rules  Quebec rules that may conflict with statements in Van Breda:  Art 3148(3) and civil liability claims based on “damage” in the province  Art 3149 on consumer and employment contract claims  Art 3139 and jurisdiction over related/necessary parties

20. Art. 3148(3) “damage” in the province  Expansive interpretation of “damage” since Spar Aerospace (SCC 2002; per LeBel J.)  $1 M claim related to lost performance incentives on satellite equipment (not connected to Quebec)  + $50 000 loss of reputation claim (connected to Quebec)  Spar: two main points  Real & Substantial Connection test subsumed in jurisdictional rules of CCQ  Forum non conveniens as corrective of broad jurisdictional bases

21. Art. 3148(3) “damage” in the province  Van Breda retreats from one or both points:  Forum non conveniens as separate and independent from jurisdiction  Ambiguous about whether Quebec can have a more generous provision  Constitutional constraint as “outer limit”  Consequential damage or loss alone not sufficiently connected to the forum  BUT no requirement of uniformity; room for different approaches; no need for closest connection

22. Art. 3148(3) “damage” in the province  Quebec Court of Appeal jurisprudence  Broad interpretation of “damage” in extra-contractual claims relating to bodily injury  Hotel Decameron Jamaica c. D’Amours (2007)  Nosseir c. Sea Pro Divers (2009)  Narrower interpretation of “damage” in contractual claims relating to financial losses  Quebecor Printing v. Regenair (2001)  Option consommateurs v. Infineon Technologies (2011)  Requirement of “material fact” connected to Quebec

23. Art. 3149 consumer and employment contract claims  Van Breda may raise concerns over constitutional validity  “presence of the plaintiff is not, on its own, a sufficient connecting factor”  “absent other considerations”…  Protection of vulnerable parties  Protection limited to jurisdiction, does not extend to choice of law  Recall numerous jurisdictional grounds in family matters based on connection of the plaintiff alone – cannot be excluded altogether

24. Art. 3149 CCQ: necessary party  Not explicitly rejected by SCC in Van Breda  Explicitly rejected by ONCA  SCC commentary on this point seems supportive of ONCA  Policy objectives of 3139 CCQ:  Avoiding multiplicity of proceedings and risk of contradictory results  Efficiency and fairness for the parties in principal action  Response: what about presence and consent? Efficiency/fairness trumps R&S in those cases?

25. Effect of Van Breda in Quebec? Concluding remarks  Van Breda replaces Spar Aerospace as authority on constitutional limitations on private international law in the CCQ  Jurisdictional rules no longer pre-approved in terms of respecting any “real and substantial connection” test for constitutional validity  Forum non conveniens can no longer serve to justify broad interpretation of jurisdictional rules  Quebec courts will have to entertain arguments that either the jurisdictional rule or its application in a given case is incompatible with constitutional limitations on courts’ jurisdiction  Particularly at risk are 3148(3), 3149 and 3139 CCQ

26. Une pensée d’avance Think Ahead 2012-2013 Formation Continue Faculty of Law Prof. Geneviève Saumier genevieve.saumier@mcgill.ca