Canada Post Corp. v. Lépine

Canada Post Corp. v. Lépine
Collection
Supreme Court Judgments
Date
2009-04-02
Neutral citation
2009 SCC 16
Report
[2009] 1 SCR 549
Case number
32299
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Charron, Louise; Rothstein, Marshall
On appeal from
Quebec
Subjects
International law
Notes
SCC Case Information: 32299
Decision Content
SUPREME COURT OF CANADA
Citation: Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549
Date: 20090402
Docket: 32299
Between:
Canada Post Corporation
Appellant
and
Michel Lépine
Respondent
‑ and ‑
Attorney General of Canada and Cybersurf Corp.
Interveners
Official English Translation
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 58)
LeBel J. (McLachlin C.J. and Binnie, Deschamps, Fish, Charron and Rothstein JJ. concurring)
______________________________
Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549
Canada Post Corporation Appellant
v.
Michel Lépine Respondent
and
Attorney General of Canada and Cybersurf Corp. Interveners
Indexed as: Canada Post Corp. v. Lépine
Neutral citation: 2009 SCC 16.
File No.: 32299.
2008: November 17; 2009: April 2.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ.
on appeal from the court of appeal for quebec
Private international law — Foreign or external judgments — Recognition procedure — Parallel class proceedings commenced in different provinces — Whether Quebec court hearing application for recognition of judgment can take account of doctrine of forum non conveniens in determining whether foreign authority had jurisdiction — Civil Code of Québec, S.Q. 1991, c. 64, arts. 3135, 3155(1), 3164.
Private international law — Foreign or external judgments — Recognition procedure — Parallel class proceedings commenced in different provinces — Notice procedure for Ontario judgment certifying class proceeding and approving settlement agreement — Quebec residents bound by settlement agreement — Whether notice procedure for Ontario judgment entailed contravention of fundamental principles of procedure that precluded recognition of Ontario judgment in Quebec — Civil Code of Québec, S.Q. 1991, c. 64, art. 3155(3).
Private international law — Foreign or external judgments — Recognition procedure — Lis pendens — Parallel class proceedings commenced in different provinces — Whether Quebec and Ontario proceedings gave rise to situation of lis pendens — Civil Code of Québec, S.Q. 1991, c. 64, art. 3155(4).
In September 2000, the Canada Post Corporation began marketing a lifetime Internet service in Canada, but it terminated its commitment in September 2001. This led to complaints and various proceedings. In Quebec, a customer who had purchased this service filed a motion for authorization to institute a class action on behalf of every natural person residing in Quebec who had purchased it. Subsequently, in Ontario, the Superior Court of Justice certified a class proceeding and approved a settlement agreement pursuant to which Canadian consumers could obtain a refund of the purchase price of the CD-ROM and receive three months of free Internet access. According to the Ontario judgment, the settlement agreement was binding on every resident of Canada who had purchased the service except those in British Columbia. On the next day, the Quebec Superior Court authorized the Quebec class action on behalf of a group limited to residents of Quebec. The Corporation then sought to have the Ontario judgment recognized under art. 3155 C.C.Q. The Quebec Superior Court dismissed the Corporation’s application on the basis that the notice of certification of the Ontario proceeding was inadequate in Quebec and created confusion with the class action under way in Quebec, which constituted a contravention of the fundamental principles of procedure (art. 3155(3) C.C.Q.). The Quebec Court of Appeal affirmed that judgment on this issue and added that although the Ontario court had jurisdiction over the proceeding, it should have declined jurisdiction over Quebec residents by applying the doctrine of forum non conveniens (arts. 3155(1), 3164 and 3135 C.C.Q.). Finally, the two class proceedings gave rise to a situation of lis pendens, since the Quebec proceeding had been commenced first (art. 3155(4) C.C.Q.).
Held: The appeal should be dismissed.
In applying the doctrine of forum non conveniens, the Court of Appeal added an irrelevant factor to its analysis of the foreign court’s jurisdiction. Although the application of this doctrine finds support, at first glance, in the very broad wording of the reference in art. 3164 C.C.Q. to Title Three on the international jurisdiction of Quebec authorities, such an interpretation disregards the main principle underlying the legal framework for the recognition and enforcement of foreign judgments set out in the Civil Code of Québec. In reviewing an application for recognition of a foreign judgment, the Quebec court does not have to consider how the court of another province or of a foreign country should have exercised its jurisdiction or, in particular, how it might have exercised a discretion to decline jurisdiction over the case or suspend its intervention. Enforcement by the Quebec court depends on whether the foreign court had jurisdiction, not on how that jurisdiction was exercised, apart from the exceptions provided for in the Civil Code of Québec. To apply forum non conveniens in this context would therefore be to overlook the basic distinction between the establishment of jurisdiction as such and the exercise of jurisdiction. The application of the specific rules set out in arts. 3165 to 3168 C.C.Q. will generally suffice to determine whether the foreign court had jurisdiction. It may be necessary in considering a complex legal situation to apply the general principle in art. 3164 C.C.Q. and to establish a substantial connection between the dispute and the originating court. But even when it is applying that general rule, the court hearing the application for recognition cannot rely on a doctrine that is incompatible with the recognition procedure. In the instant case, there is no doubt that the Ontario Superior Court of Justice had jurisdiction pursuant to art. 3168 C.C.Q., since the Corporation, the defendant to the action, had its head office in Ontario. This connecting factor in itself justified finding that the Ontario court had jurisdiction. [34-38]
In the context in which they were published, the notices provided for in the judgment of the Ontario Superior Court of Justice contravened the fundamental principles of procedure within the meaning of art. 3155(3) C.C.Q. In a class action, it is important that the notice procedure be designed so as to make it likely that the information will reach the intended recipients. The wording of the notice must take account of the context in which it will be published and, in particular, the situation of the recipients. Compliance with these requirements constitutes an expression of the necessary comity between courts and a condition for preserving it within the Canadian legal space. In the instant case, the clarity of the notice was particularly important in a context in which, to the knowledge of all those involved, parallel class proceedings had been commenced in Quebec and in Ontario. The Ontario notice was likely to confuse its intended recipients, as it did not properly explain the impact of the judgment certifying the class proceeding on Quebec members of the national class established by the Ontario Superior Court of Justice. It could have led those who read it in Quebec to conclude that it simply did not concern them. [42-46]
The Quebec courts were also precluded from recognizing the Ontario judgment on the basis of lis pendens pursuant to art. 3155(4) C.C.Q. The interpretation to the effect that a class action exists only as of its filing date, after it has been authorized, is consistent neither with the wording of art. 3155(4) nor with the way that provision is applied in the context of a class action. The application for authorization to institute a class action is a form of judicial proceeding between parties for the purpose of determining whether a class action will in fact take place. In the instant case, the three identities were present at the stage of this application. The basic facts in support of both proceedings were the same for Quebec residents, the object was the same and the legal identity of the parties was established. [51-55]
Cases Cited
Referred to: Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78, [2002] 4 S.C.R. 205; Hocking v. Haziza, 2008 QCCA 800, [2008] R.J.Q. 1189; Currie v. McDonald’s Restaurants of Canada Ltd. (2005), 74 O.R. (3d) 321; Birdsall Inc. v. In Any Event Inc., [1999] R.J.Q. 1344; Rocois Construction Inc. v. Québec Ready Mix Inc., [1990] 2 S.C.R. 440; Thompson v. Masson, [1993] R.J.Q. 69; Hotte v. Servier Canada Inc., [1999] R.J.Q. 2598; Roberge v. Bolduc, [1991] 1 S.C.R. 374.
Statutes and Regulations Cited
Civil Code of Québec, S.Q. 1991, c. 64, arts. 3134 to 3168, 3135, 3137, 3155, 3158, 3164, 3168.
Code of Civil Procedure, R.S.Q., c. C-25.
Fair Trading Act, R.S.A. 2000, c. F-2.
Authors Cited
Black’s Law Dictionary, 8th ed. St. Paul, Minn.: Thomson/West, 2004, “dispute”.
Glenn, H. Patrick. “Droit international privé”, dans La réforme du Code civil, t. 3, Priorités et hypothèques, preuve et prescription, publicité des droits, droit international privé, dispositions transitoires. Textes réunis par le Barreau du Québec et la Chambre des notaires du Québec. Sainte-Foy, Qué.: Presses de l’Université Laval, 1993, 669.
Goldstein, Gérald, et Ethel Groffier. Droit international privé, t. I, Théorie générale. Cowansville, Qué.: Yvon Blais, 1998.
Grand Robert de la langue française, 2e éd. augm., t. 4. Paris: Dictionnaires Le Robert, 2001, “litige”.
Reid, Hubert. Dictionnaire de droit québécois et canadien avec table des abréviations et lexique anglais-français, 3e éd. Montréal: Wilson & Lafleur, 2004, “litige”.
Royer, Jean-Claude. La preuve civile, 4e éd. Cowansville, Qué.: Yvon Blais, 2008.
Saumier, Geneviève. “The Recognition of Foreign Judgments in Quebec — The Mirror Crack’d?” (2002), 81 Can. Bar Rev. 677.
Talpis, Jeffrey A., with the collaboration of Shelley L. Kath. “If I am from Grand-Mère, Why Am I Being Sued in Texas?” Responding to Inappropriate Foreign Jurisdiction in Quebec–United States Crossborder Litigation. Montréal: Thémis, 2001.
APPEAL from a judgment of the Quebec Court of Appeal (Delisle, Pelletier and Rayle JJ.A.), 2007 QCCA 1092, [2007] R.J.Q. 1920, [2007] SOQUIJ AZ-50446058, [2007] J.Q. no 8498 (QL), 2007 CarswellQue 13496, affirming a decision of Baker J., J.E. 2005-1631, [2005] SOQUIJ AZ-50325631, [2005] Q.J. No. 9806 (QL), 2005 CarswellQue 5457, 2005 CanLII 26419. Appeal dismissed.
Serge Gaudet, Gary D. D. Morrison and Frédéric Massé, for the appellant.
François Lebeau and Jacques Larochelle, for the respondent.
Alain Préfontaine, for the intervener the Attorney General of Canada.
No one appeared for the intervener Cybersurf Corp.
English version of the judgment of the Court delivered by
LeBel J. —
I. Introduction
A. Nature of the Appeal
[1] In September 2000, the appellant, the Canada Post Corporation (“Corporation”), began marketing a lifetime Internet service in Canada. Many consumers purchased the service. However, the Corporation terminated its lifetime commitment in September 2001 and discontinued the service, which led to complaints and various proceedings. There was a settlement in Ontario after the Ontario Superior Court of Justice had certified a class proceeding and approved a settlement agreement with the Corporation. A class action had also been instituted in Quebec. The Corporation sought to have the Ontario judgment recognized under art. 3155 of the Civil Code of Québec, S.Q. 1991, c. 64 (“C.C.Q.”), and to have the Quebec proceedings dismissed, but the Quebec Superior Court dismissed its application. The Quebec Court of Appeal affirmed that judgment. For reasons that differ in part from those given by the Court of Appeal, I would dismiss this appeal, which concerns the conditions under the Civil Code of Québec for recognizing a judgment rendered outside Quebec. The appeal also raises issues concerning the management of parallel class actions instituted in different provinces.
B. Origin of the Case
[2] The events on which this case is based began in September 2000, when the Corporation offered its customers a lifetime Internet access package using software designed by the intervener Cybersurf Corp., an Internet service provider. The software came on a CD-ROM that was sold for $9.95. In exchange for free service, purchasers agreed to have advertising transmitted to their computers. According to the Corporation, it sold 146,736 CD-ROMs across Canada. For reasons not specified by the parties, the Corporation discontinued the lifetime Internet service on September 15, 2001. Some consumers were upset, and their reactions led, inter alia, to the proceedings now before this Court.
[3] In 2001, the Alberta government complained to the Corporation under the Fair Trading Act, R.S.A. 2000, c. F-2. Then, on February 6, 2002, Michel Lépine, the respondent in this appeal, filed a motion in the Quebec Superior Court for authorization to institute a class action under Quebec’s Code of Civil Procedure, R.S.Q., c. C-25. He sought to institute the action against the Corporation on behalf of every natural person residing in Quebec who had purchased the Corporation’s Internet package. On March 28, 2002, Paul McArthur also commenced a class proceeding against the Corporation in the Ontario Superior Court of Justice. He sought leave to represent everyone who had purchased the Corporation’s CD-ROM and Internet service, except Quebec residents. Finally, on May 7, 2002, John Chen commenced a class proceeding in the British Columbia Supreme Court on behalf of residents of that province who had purchased the CD-ROM distributed by the Corporation. A settlement was reached in Alberta in December 2002, and the Corporation undertook to refund the purchase price of the CD-ROM to Canadian consumers who returned the CD-ROM to it.
[4] Negotiations were conducted to settle the class proceedings under way in Quebec, Ontario and British Columbia. The Corporation offered the same settlement as in Alberta, which it later enhanced by offering three months of free Internet access. According to information provided by the parties, the applicants for certification of the class proceedings in British Columbia and Ontario accepted the Corporation’s offers. The applicant for authorization in the Quebec action, Mr. Lépine, rejected them.
[5] The application for authorization of the Quebec class action, which the Corporation contested vigorously, was still pending at the time of these negotiations. On June 18, 2003, the Quebec Superior Court decided to hear the application on November 5, 6 and 7 of that year.
[6] In the meantime, in Ontario in early July 2003, the parties to the Ontario and British Columbia proceedings entered into a settlement agreement with the appellant based on the offer they had accepted. The agreement created two classes of claimants. The first was limited to British Columbia residents. For the purposes of the Ontario proceeding, the second class included residents of every province of Canada except British Columbia, as it no longer excluded Quebec residents despite the fact that the respondent, Michel Lépine, was proceeding with his application for authorization to institute a class action in Quebec and had rejected the proposed settlement. To give effect to the settlement, the Ontario application for certification was amended on November 19, 2003 to include Quebec residents in the class.
[7] Beginning at the time of negotiation of the settlement, various proceedings that had contradictory purposes and effects were commenced in the Ontario Superior Court of Justice and the Quebec Superior Court. When informed of the settlement with the Corporation, Mr. Lépine sought unsuccessfully to obtain safeguard orders from the Quebec Superior Court as well as a declaration that the Ontario agreement could not be set up against Quebec residents. His motion was heard on July 22, 2003, but the judge merely ordered the Corporation to give Quebec counsel details related to the applications for approval in Ontario and British Columbia.
[8] Nevertheless, the Quebec Superior Court heard Mr. Lépine’s application for authorization on the scheduled dates, November 5 to 7, 2003, despite attempts by the Corporation to obtain a stay of the hearing and the judgment. The judge reserved his decision on November 7.
[9] The Ontario proceeding also continued. The Superior Court of Justice heard the application for certification of the class proceeding, to which the application for approval of the settlement agreement had now been added. Mr. Lépine’s Quebec counsel did not appear in the Ontario proceeding. However, he sent the judge hearing the application for certification and approval a letter asking him to decline jurisdiction over Quebec residents for reasons he set out in detail. On December 22, 2003, the Superior Court of Justice certified the class proceeding and approved the settlement. It excluded British Columbia residents but not Quebec residents from the class. It did not comment on Mr. Lépine’s request, but referred to that request in the following terms in its recitals: “. . . and upon being advised of the situation in the Province of Quebec and the correspondence forwarded to this Court by Quebec counsel, François LeBeau . . . .” Thus, the Ontario Superior Court of Justice approved the settlement reached with the Corporation without reservation and ordered that notices of the judgment be published accordingly. The following are the most important heads of relief in its order:
1. THIS COURT ORDERS AND ADJUDGES that for purposes of the settlement, as set out in the Settlement Agreement attached as Schedule “A” (“the Settlement Agreement”), the within action is certified as a Class Proceeding pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6.
. . .
3. THIS COURT ORDERS AND ADJUDGES that, as set out in the Settlement Agreement, the group of persons who are members of the Ontario Class be:
“Any person in Canada, not a resident of the Province of British Columbia, who purchased a CD-Rom through any Canada Post outlet at a retail price of $9.95, exclusive of applicable taxes, the packaging of which displayed the words ‘free internet for life’, on or after September 27, 2000.”
4. THIS COURT ORDERS AND ADJUDGES that the claims asserted on behalf of the Class are for breach of contract and misrepresentation and the relief sought is damages, including punitive, aggravated and exemplary damages, interest and costs as set out in the Amended Statement of Claim.
. . .
10. THIS COURT ORDERS AND ADJUDGES that any Class Member who does not opt-out within the time provided and in the manner described in the Settlement Agreement is bound by the Settlement Agreement and this Order and is hereby enjoined from pursuing any claims covered by the Settlement Agreement against the Defendants.
On the next day, December 23, 2003, the Quebec Superior Court rendered a judgment authorizing the institution of a class action against the Corporation on behalf of a group limited to residents of Quebec.
[10] Finally, on April 7, 2004, the British Columbia Supreme Court approved the settlement for the class of British Columbia residents. The settlement with the Corporation had accordingly been completed.
[11] In the meantime, the judgments rendered by the Ontario Superior Court of Justice and the Quebec Superior Court had created an unavoidable legal conflict. On the one hand, a class action against the Corporation was continuing in the Quebec Superior Court. On the other hand, the Corporation had obtained a judgment from the Ontario Superior Court of Justice declaring that the claims against it had been settled, including the claims of Quebec residents. To break the impasse, the Corporation applied to the Quebec Superior Court in June 2004 to have the judgment of the Ontario Superior Court of Justice recognized and declared enforceable. To this date, more than four years later, the Ontario judgment has not yet been recognized in Quebec, and the class action authorized by the Quebec Superior Court has not yet been heard.
II. Judicial History
A. Quebec Superior Court, [2005] Q.J. No. 9806 (QL)
[12] On July 20, 2005, Baker J. of the Quebec Superior Court dismissed the Corporation’s application for recognition of the judgment of the Ontario Superior Court of Justice on the basis that the application did not meet the requirements of art. 3155 C.C.Q. Baker J. based his decision to refuse recognition on the ground of contravention of the fundamental principles of procedure, which is provided for in art. 3155(3) C.C.Q. In his view, the notice of certification of the Ontario proceeding was inadequate in Quebec and created confusion with the class action under way in Quebec and the notices given in that action.
B. Quebec Court of Appeal (Delisle, Pelletier and Rayle JJ.A.), 2007 QCCA 1092, [2007] R.J.Q. 1920
[13] In a unanimous decision written by Rayle J.A., the Quebec Court of Appeal dismissed the Corporation’s appeal from the Superior Court’s judgment. Rayle J.A. found that there were three reasons to refuse recognition. She conceded that the Ontario Superior Court of Justice had jurisdiction over Mr. McArthur’s application. But in her view, that court should have declined jurisdiction over Quebec residents by applying the doctrine of forum non conveniens. Next, she agreed with the trial judge that the confusion created by the notices concerning the class proceeding certified in Ontario had resulted in a contravention of the fundamental principles of procedure within the meaning of art. 3155(3) C.C.Q. Finally, the Court of Appeal found that the two class proceedings gave rise to a situation of lis pendens. Because the Quebec proceeding had been commenced first, art. 3155(4) C.C.Q. precluded the Quebec courts from recognizing the Ontario judgment. The Court of Appeal did not rule on the issue of violation of international public order under art. 3155(5) C.C.Q. However, Rayle J.A. stated that she was puzzled by the decision of the Ontario Superior Court of Justice judge to exclude British Columbia residents but not Quebec claimants from the class. She wondered why the Ontario court had not adhered to the principles of interprovincial comity in relation to the Quebec court, which had been the first one seised of the dispute. The Corporation appealed that judgment to this Court, asking that it be reversed.
III. Analysis
A. Issues
(1) Nature of the Issues
[14] This appeal concerns the interpretation and application of art. 3155 C.C.Q. with regard to the recognition of a judgment rendered in a class proceeding in Ontario. I prefer to characterize that judgment as an external rather than a foreign one, despite the language used in the Civil Code of Québec. In essence, the dispute between the parties raises three issues. First, can a Quebec court hearing an application for recognition of an external judgment take account of the doctrine of forum non conveniens? Next, did the Ontario Superior Court of Justice adhere to the fundamental principles of procedure? If there were defects, did they entail a contravention of the fundamental principles of civil procedure within the meaning of art. 3155(3) C.C.Q.? Finally, did the application for authorization in Quebec and the application for certification in Ontario give rise to a situation of lis pendens?
[15] The discussion of these issues will also require some comment on the issue of interprovincial judicial comity in the conduct of interprovincial class actions. Although the outcome of this appeal does not depend on the resolution of this last issue, it is one that now seems likely to affect the conduct of class actions involving two or more Canadian provinces, as well as relations between the superior courts of different provinces. It therefore merits some thought, as can be seen from the problems or reactions it appears to have provoked in this case.
(2) The Parties’ Positions
[16] The appellant submits that none of the provisions of art. 3155 C.C.Q. stood in the way of its application for recognition in Quebec and that the Quebec Superior Court should therefore have recognized the judgment of the Ontario Superior Court of Justice. According to the Corporation, the Quebec court could not raise the application of the doctrine of forum non conveniens by the Ontario court as an issue. The Corporation adds that the notices given in Quebec were consistent with the fundamental principles of procedure. Finally, it denies that the conditions for lis pendens were met.
[17] The respondent relies primarily on the judgment of the Quebec Court of Appeal on the three issues being discussed. He also alleges that the Ontario proceedings were conducted in a manner inconsistent with international public order, which the appellant disputes. This argument need not be considered in the circumstances of this case. Finally, the Attorney General of Canada has intervened on the issue of the application of the doctrine of forum non conveniens in the procedure for the recognition of judgments rendered in the provinces of Canada. Before considering these questions, I believe it will be helpful to summarize the rules governing the recognition of external judgments by Quebec courts under the Civil Code of Québec.
B. Legal Framework for the Judicial Recognition of External Judgments
[18] The rules on the international jurisdiction of Quebec authorities and the recognition of foreign or external judgments are found, respectively, in Title Three (arts. 3134 to 3154) and Title Four (arts. 3155 to 3168) of Book Ten of the Civil Code of Québec on private international law. The two titles are closely related. I will come back to this in the course of my analysis.
[19] In substance, Title Three sets out general rules and specific rules for identifying the connecting factors that will give Quebec authorities jurisdiction in an international context. Where there are no specific rules, whether a Quebec authority has jurisdiction will depend on whether the defendant is domiciled in Quebec (art. 3134). As a whole, these rules ensure compliance with the basic requirement that there be a real and substantial connection between the Quebec court and the dispute, as this Court noted in Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78, [2002] 4 S.C.R. 205, at paras. 55-56.
[20] Other provisions of Title Three supplement these rules by giving the Quebec court a discretion to either intervene or decline to do so in a dispute. Article 3135 is particularly important, as it confirms the incorporation of the doctrine of forum non conveniens into private international law in Quebec. Under this provision, a Quebec court may decline to hear a case over which it has jurisdiction if it considers that the authorities of another country are in a better position to decide.
[21] Title Four concerns foreign judgments or judgments rendered outside Quebec that are brought before the courts of that province. It establishes the conditions for the recognition and enforcement of such judgments.
[22] In accordance with the evolution of private international law, which seeks to facilitate the free flow of international trade, the basic principle laid down in art. 3155 C.C.Q. for all the rules in Title Four is that any decision rendered by a foreign authority must be recognized unless an exception applies. The exceptions are limited: the decision maker had no jurisdiction, the decision is not final or enforceable, there has been a contravention of the fundamental principles of procedure, lis pendens applies, the outcome is inconsistent with international public order, and the judgment relates to taxation. This legislative intent is clear from the wording of art. 3155:
3155. A Québec authority recognizes and, where applicable, declares enforceable any decision rendered outside Québec except in the following cases:
(1) the authority of the country where the decision was rendered had no jurisdiction under the provisions of this Title;
(2) the decision is subject to ordinary remedy or is not final or enforceable at the place where it was rendered;
(3) the decision was rendered in contravention of the fundamental principles of procedure;
(4) a dispute between the same parties, based on the same facts and having the same object has given rise to a decision rendered in Québec, whether it has acquired the authority of a final judgment (res judicata) or not, or is pending before a Québec authority, in first instance, or has been decided in a third country and the decision meets the necessary conditions for recognition in Québec;
(5) the outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations;
(6) the decision enforces obligations arising from the taxation laws of a foreign country.
[23] Article 3158 limits the scope of a Quebec court’s power to review a foreign decision. The court must confine itself to considering whether the requirements for recognizing the decision have been met. It cannot review the merits of the case or retry the case. Article 3158 expressly prohibits this:
3158. A Québec authority confines itself to verifying whether the decision in respect of which recognition or enforcement is sought meets the requirements prescribed in this Title, without entering into any examination of the merits of the decision.
[24] However favourable these principles may be to the recognition of foreign decisions, it must still be found that none of the exceptions provided for in art. 3155 C.C.Q. apply. In particular, as art. 3155(1) provides, the Quebec court must find that the court of the country where the judgment was rendered had jurisdiction over the matter. In this regard, Title Four also contains arts. 3164 to 3168, which set out rules the Quebec court is to apply to determine whether the foreign authority had jurisdiction. The main analytical tool for art. 3164 relates to the technique of referring to the rules in Title Three on establishing the jurisdiction of Quebec authorities.
[25] This provision creates a mirror effect. The foreign authority is deemed to have jurisdiction if the Quebec court would, by applying its own rules, have accepted jurisdiction in the same situation (G. Goldstein and E. Groffier, Droit international privé, vol. I, Théorie générale (1998), at p. 416). To this principle, art. 3164 C.C.Q. adds the requirement of a substantial connection between the dispute and the foreign authority seised of the case:
3164. The jurisdiction of foreign authorities is established in accordance with the rules on jurisdiction applicable to Québec authorities under Title Three of this Book, to the extent that the dispute is substantially connected with the country whose authority is seised of the case.
[26] Articles 3165 to 3168 then set out more specific rules applicable to a variety of legal situations. Only art. 3168 is important for the purposes of this case. It identifies the cases in which a Quebec court will recognize a foreign authority’s jurisdiction in personal actions of a patrimonial nature. This provision applies to the matters in dispute here. It provides for six situations in which a foreign authority’s jurisdiction will be recognized in such actions:
3168. In personal actions of a patrimonial nature, the jurisdiction of a foreign authority is recognized only in the following cases:
(1) the defendant was domiciled in the country where the decision was rendered;
(2) the defendant possessed an establishment in the country where the decision was rendered and the dispute relates to its activities in that country;
(3) a prejudice was suffered in the country where the decision was rendered and it resulted from a fault which was committed in that country or from an injurious act which took place in that country;
(4) the obligations arising from a contract were to be performed in that country;
(5) the parties have submitted to the foreign authority disputes which have arisen or which may arise between them in respect of a specific legal relationship; however, renunciation by a consumer or a worker of the jurisdiction of the authority of his place of domicile may not be set up against him;
(6) the defendant has recognized the jurisdiction of the foreign authority.
[27] Because of the way these rules of recognition are set out in the legislation, a problem rises that is of particular significance for the analysis of the instant case. Do the jurisdictional rules in arts. 3164 to 3168 incorporate, by reference to Title Three, the doctrine of forum non conveniens? Do they thus give a Quebec court the power, even if the foreign authority’s jurisdiction has been established, to determine whether the court that rendered the decision should have applied the doctrine of forum non conveniens? Can a Quebec court refuse to recognize a judgment rendered outside Quebec because, in its opinion, the foreign court should, pursuant to that doctrine, have declined jurisdiction over the case?
C. Mirror Effect and Application of the Doctrine of Forum Non Conveniens
[28] The question of the mirror effect and its scope has been a problem in Quebec private international law since the Civil Code of Québec came into force. In art. 3164 C.C.Q., the legislature has not been as clear as might be hoped about the scope of its reference to the provisions of Title Three of Book Ten (see, for example, Goldstein and Groffier, at p. 416). This drafting problem has led some Quebec authors and judges to support what is known as the “little mirror” theory. This theory seems to be based on a literal interpretation of the reference in art. 3164 to the general provisions of Title Three on determining whether a Quebec authority has jurisdiction and on the exercise of such jurisdiction. Under that interpretation, because the reference does not exclude any of Title Three’s provisions, it necessarily encompasses the doctrine of forum non conveniens, which is accepted in Quebec private international law under art. 3135 C.C.Q.
[29] Thus, according to the theory, the possibility of applying the doctrine of forum non conveniens, when considering a motion for judicial recognition of a foreign or external judgment, supplements the provisions on establishment of the foreign court’s jurisdiction by enabling the Quebec authority to more effectively ensure compliance with the basic requirement under art. 3164 C.C.Q. of a substantial connection between the dispute and the country whose authority is seised of the case. Moreover, this interpretation means that, when considering whether a foreign court has jurisdiction over an action of a patrimonial nature, the Quebec authority will not limit itself to determining whether the application for recognition corresponds to one of the situations provided for in art. 3168 C.C.Q. The Quebec court can also consider how the foreign authority should have applied the doctrine of forum non conveniens to decide whether or not to decline jurisdiction.
[30] Goldstein and Groffier, who support the little mirror theory, stress the importance they attach to the wording of art. 3164 C.C.Q., which does not limit the scope of the reference to the general provisions of Title Three (at p. 417):
[translation] It must first be noted that the jurisdiction of Quebec authorities that is extended to foreign authorities is logically determined not only through specific connecting principles, but also through the general provisions such as those on forum non conveniens, forum conveniens and exclusive jurisdiction. In referring to the Quebec rules on jurisdiction, art. 3164 C.C.Q. does not limit them to the specific rules (arts. 3141 to 3154 C.C.Q.) and therefore refers implicitly to arts. 3134 to 3140 C.C.Q. as well. The latter provisions considerably alter the specific rules on jurisdiction in Quebec by giving the courts a broad discretion. It should therefore be accepted that foreign authorities can have the same freedom to exclude heads of jurisdiction that the Quebec courts would have excluded. As Professor Glenn points out:
The foreign authority’s jurisdiction is assessed not broadly, in light of the connections accepted under the various heads of jurisdiction, but in light of the specific circumstances of each case. The question is whether the Quebec authority would have agreed to exercise its jurisdiction in such circumstances. The mirror principle becomes the principle of a “little mirror” that reflects the specific circumstances of the case in light of the general provisions.
(Emphasis in original.)
These authors add that the Quebec court may therefore apply the doctrine of forum non conveniens to determine how, in its view, the foreign court should have applied that very doctrine (p. 417; along the same lines, see also: H. P. Glenn, “Droit international privé”, in La réforme du Code civil (1993), vol. 3, 669, Nos. 117-19, at pp. 770-72).
[31] The Quebec Court of Appeal adopted this approach in the instant case. It recognized that the Ontario Superior Court of Justice had jurisdiction over the subject matter in the usual sense of the term (para. 64). However, because it found that it had to consider the jurisdiction of the Ontario court through the prism of the reciprocity required by the little mirror theory, it concluded that the Superior Court of Justice should have applied the doctrine of forum non conveniens and should, on that basis, have excluded Quebec residents from the class in the class proceeding it was certifying (paras. 64-69). The Superior Court of Justice should have recognized that it was not the most appropriate forum with respect to this class of claimants, and thus deferred to the jurisdiction of the Quebec Superior Court.
[32] However, some Quebec authors reject the application of forum non conveniens in the recognition of foreign or external judgments. They would limit the effect of the reference to Title Three in art. 3164 by excluding forum non conveniens from it. For example, in a study on the rules for recognizing and enforcing foreign or external judgments in Quebec, Professor Geneviève Saumier is highly critical of the application of this doctrine (“The Recognition of Foreign Judgments in Quebec — The Mirror Crack’d?” (2002), 81 Can. Bar Rev. 677). According to her, this interpretation of art. 3164 C.C.Q. is not justified despite the very general language used in drafting that provision. In her opinion, to apply the doctrine of forum non conveniens when considering an application for recognition confuses the establishment of the foreign court’s jurisdiction as such with the exercise of that jurisdiction (pp. 691-92). Thus the literal interpretation of art. 3164 C.C.Q. cannot be reconciled with the general principle in art. 3155 C.C.Q. that a foreign or external judgment should be recognized once the originating court has been shown to have jurisdiction in the strict sense, and it is inconsistent with the fact that this principle remains the cornerstone of the system of recognition of foreign judgments established by the Civil Code of Québec. The addition of a mechanism based on the discretion of the court to which the application has been made, one that depends in all cases on the existence of a specific factual context, is inconsistent with this principle (pp. 693-94).
[33] Professor Jeffrey Talpis refers to a few cases in which Quebec courts have favoure