R.S. v. P.R., 2019 SCC 49

Private international law — Lis pendens — Application for stay of ruling — Condition of susceptibility of recognition of foreign judgment

On appeal from a judgment of the Quebec Court of Appeal (2017 QCCA 1470), setting aside a decision of Hallée J., 2016 QCCS 3394.

R and S married in Belgium in 2004. They moved to Quebec with their children in 2013. In 2014, the couple’s relationship deteriorated, and S told R that she had decided to terminate their union. Two applications for divorce were then brought, one by R in Belgium on August 12, and the other by S in Quebec on August 15. Under Belgian law, R then revoked, in a letter, all the gifts he had given S during their marriage, which were valued at over $33 million.

R applied to the Superior Court under art. 3137 of the Civil Code of Québec (“C.C.Q.”) to stay its ruling on S’s proceedings in Quebec on the basis of international lis pendens. That court — which considered that it would not be possible to recognize in Quebec a decision of a Belgian court based on the provision of Belgium’s Code civil under which R could revoke the gifts, because that provision is discriminatory — held that S’s divorce proceedings in Quebec should not be stayed. The Court of Appeal reversed that judgment, finding that it would be premature to conclude that a Belgian decision with respect to the revocation of the gifts could not be recognized in Quebec. In the Court of Appeal’s opinion, the trial judge had also made an error that had caused her analysis concerning the appropriateness of exercising her discretion to order a stay to be unreasonable. It therefore ordered that S’s divorce proceedings in Quebec be stayed.

Held (Brown J. dissenting): The appeal should be allowed and the Superior Court’s conclusion on dismissing the application for a stay restored.

Per Wagner C.J. and Moldaver, Karakatsanis, Gascon and Martin JJ.:

The conditions for the application of art. 3137 C.C.Q. are met in this case. R has discharged his burden, which is not onerous, of establishing that it is possible that the eventual decision of the Belgian court will be susceptible of recognition in Quebec. However, the Court of Appeal’s intervention in the exercise of the trial judge’s discretion was unwarranted. It was open to the trial judge to conclude that it was appropriate to decline to order a stay as she did in this case. Her decision on this point must therefore be restored.

Article 3137 C.C.Q. establishes the lis pendens exception in Quebec private international law. Under it, a court may stay its ruling on an action brought in Quebec if the dispute is already the subject of proceedings before the courts of a foreign jurisdiction. Although this article is applied regularly, it constitutes an exception in that the Quebec court is departing from the general principle with respect to cases filed with it by staying proceedings that have in fact been validly brought before it. The international lis pendens exception is intended to allow the domestic court to stay its ruling in order to eventually give effect to the foreign decision in Quebec for the purpose of avoiding a situation in which parallel proceedings result in inconsistent decisions that could both have effects in Quebec. Under this article, three conditions must be met before a Quebec court may stay its ruling. First, the action must have been filed with the foreign forum first. Second, there must be an identity of parties, of facts and of subject — the condition of three identities — between the two actions that have been brought. Third, it must be possible for the foreign action to result in a decision that will be susceptible of recognition in Quebec. If any one of these conditions is not met, the application for a stay cannot be granted, because there is then not a situation of lis pendens under art. 3137 C.C.Q.

The court cannot raise the international lis pendens exception of its own motion. Article 3137 C.C.Q. provides that the Quebec authority may stay its ruling on an action only “[o]n the application of a party”. In accordance with the principles of evidence that apply in civil matters, and as in any other case, it is the party who raises international lis pendens and seeks a stay who must show, on a balance of probabilities, that the conditions of that article, including the third one, are met. This is provided for explicitly in art. 2803 para. 1 C.C.Q., which reads “[a] person seeking to assert a right shall prove the facts on which his claim is based”. Article 3155 C.C.Q. changes nothing in this regard. It establishes a presumption that the foreign decision is valid, and this presumption can be rebutted only if one of the six exceptions enumerated in that article applies. While it is true that the condition of susceptibility of recognition under art. 3137 C.C.Q. must be considered in light of the exceptions of art. 3155 C.C.Q., the burden is still on the party who seeks to benefit from art. 3137 C.C.Q. to show that the three conditions under it are met.

In S’s opinion, what is at issue in the analysis of the third condition in this case is whether art. 1096 of the Belgian Code civil is inconsistent with public order as understood in international relations, which is one of the exceptions to the recognition of foreign judgments that are provided for in art. 3155 C.C.Q. But according to the words setting out this exception, what must be analyzed is the outcome of the foreign decision, not the laws of the foreign jurisdiction. The purpose is not to instruct the foreign authorities in their own law. The Quebec court’s role is limited to ensuring that a foreign decision is not enforced if the decision’s outcome would be so inconsistent with certain of the underlying values of the Quebec legal system as to be incapable of being incorporated into it. Public order as understood in international relations is thus generally more limited than its domestic law counterpart. The reason for this lies in a desire to apply Quebec rules of conflict that allow for the application of a foreign law under certain conditions even if that law is inconsistent with Quebec law. Thus, a foreign decision will not be recognized if its outcome runs counter to the moral, social, economic or even political conceptions that underpin Quebec’s legal order. In this case, the trial judge relied solely on an analysis of the discriminatory nature of art. 1096 of the Belgian Code civil to conclude that there was a “great” risk that a Belgian court’s decision would not be recognized in Quebec. The discriminatory nature of the legislative provision can be a relevant factor for purposes of the analysis. However, an approach as restrictive as the one adopted by the trial judge strays from the requirements of art. 3137 C.C.Q.

In the context of art. 3137 C.C.Q., the assessment of the possibility that the foreign decision is inconsistent with international public order must take into account the required degree of proof. The burden of showing that the third condition is met, that is, that it will be possible for the foreign proceedings to result in a decision that is susceptible of recognition in Quebec, is not an onerous one. On the basis of the very words of art. 3137 C.C.Q., the only requirement is that the action pending in the foreign court “can result in a decision which may be recognized in Québec”. Thus, even if the exceptions listed in art. 3155 C.C.Q. remain relevant for the purpose of determining whether the Quebec court may order a stay under art. 3137 C.C.Q., the burden applicable to international lis pendens differs from the one that applies to the proceeding for recognition and enforcement of the foreign decision. Where the international lis pendens exception is at issue, the court does not rule on the question whether the foreign judgment should be incorporated into the Quebec legal order; it merely decides whether the proceedings brought in Quebec should be stayed pending the filing there of an application for exemplification. In such situations, the Quebec court does not always have the benefit of a final foreign decision. The analysis with respect to the condition of susceptibility of recognition cannot therefore be completed as definitively as in the context of the exemplification proceeding. That is why certain authors describe the burden of proof under art. 3137 C.C.Q. in terms of a “prognosis” or a “plausibility” of recognition. The applicant can discharge this burden by showing that it is possible that the foreign decision will eventually be recognized in Quebec. This low threshold can be explained in particular by the underlying purposes of art. 3137 C.C.Q., namely to foster international comity and avert the risk of potentially conflicting judgments.

The trial judge imposed a burden of proof that was more onerous than the one required by art. 3137 C.C.Q. R was required to show only that there was a possibility that the eventual Belgian decision would not be manifestly inconsistent with public order as understood in international relations. At this time, the outcome of the eventual Belgian decision is uncertain. There are a number of factors in support of the possibility that that outcome will not involve the revocation of the gifts, and therefore that it will not be manifestly inconsistent with this international public order. This is enough to meet the third condition of art. 3137 C.C.Q.

Once the applicant has established that there is in fact a situation of international lis pendens for the purposes of art. 3137 C.C.Q., the Quebec court must still exercise its discretion and decide whether it should stay its ruling in the circumstances. The discretion under art. 3137 C.C.Q. is grounded in the idea that, even if the dispute was submitted to the foreign court first, and even if none of the exceptions to the recognition of foreign decisions set out in art. 3155 C.C.Q. apply, it is nonetheless possible that the foreign court is not the one that has the closest connections with the dispute. In this regard, the required analysis is related to the one that applies with respect to the discretion under art. 3135 C.C.Q., which codifies the doctrine of forum non conveniens in Quebec private international law. Because of this close relationship, the criteria developed by the courts with respect to forum non conveniens also apply to international lis pendens. The list of criteria is not exhaustive, and the weight to be attached to each of the criteria depends on the circumstances. While the perspective specific to each article differs, there is no reason to distinguish the analysis of the criteria conducted for the purposes of art. 3137 C.C.Q. from the one required in the context of art. 3135 C.C.Q. solely on the basis of the nature of the application.

The standard for intervention that should be applied to an exercise of the discretion in the context of international lis pendens is an exacting one. An appeal court should intervene only if the judge who ruled on the application erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision. A simple difference of opinion will not suffice. In the end, the possible recognition of the Quebec judgment in the other country is the only criterion on which the Court of Appeal relied to substitute its own analysis for that of the trial judge in this case. The Court of Appeal expressed no disagreement with her regarding the other criteria she had discussed. This criterion alone could not justify that court’s intervention in the trial judge’s exercise of her discretion. The recognition of the Quebec judgment in the other country cannot be a determinative consideration unless the Quebec judgment would not be effective without being enforced in the other country. There is no doubt in this case that the Quebec judgment would be effective, given that much of the valuable property at issue in the litigation is located in Quebec.

Per Abella J.:

There is agreement that the proceedings in Quebec should not be stayed. However, there is disagreement with the majority’s application of the legal scheme governing the susceptibility of recognition of foreign decisions. R has not discharged his burden of demonstrating that a Belgian decision rendered under art. 1096 of the Belgian Civil Code permitting the unilateral revocation of gifts could be recognized by a Quebec court. As a result, he has not met the test for a stay.

The evidence shows that the Belgian provision is non‑discretionary and allows a spouse to unilaterally revoke, without any formalities or justification, gifts bestowed during the marriage. It is an absolute right, even when exercised in bad faith. More significantly, the revocation contemplated under art. 1096 of the Belgian Civil Code is valid in Belgium even when its application results in flagrant inequalities between spouses. In this case, the husband is seeking to unilaterally revoke over $33 million dollars in assets. As the trial judge found, the consequences for the wife will be catastrophic.

The party seeking a stay under art. 3137 of the C.C.Q. bears the burden of demonstrating, on a balance of probabilities, that a stay should be granted. This includes the burden to demonstrate that the outcome of the foreign decision will not be manifestly inconsistent with public order. Because of the uncertainty usually surrounding the effects of a pending decision, the examination simply requires demonstrating a possibility that the decision will be recognized. While it may be desirable in some cases to await the outcome of a pending proceeding to determine whether it will be inconsistent with the public order condition, art. 3137 of the C.C.Q. does not require a court to do so.

The Court of Appeal was of the view that the burden was not on the husband who was seeking the stay, but on the wife who opposed it. This reversal of the onus led the Court of Appeal to suggest various hypotheticals showing that it was premature to determine at this stage whether the decision would be manifestly inconsistent with public order. Allowing speculation to drive the analysis, rather than the reality of the revocation for the wife, empties the burden on the husband of any meaning.

A decision, or pending decision, cannot be recognized in Quebec if, contrary to art. 3155 of the C.C.Q., it is “manifestly inconsistent with public order as understood in international relations”. Not every foreign decision that reaches a result different from what it would likely be under Quebec law will be found to violate the fundamental values underlying the international public order. The international public order exception applies only to situations where the application of a foreign law would contradict the moral, social, economic and political conceptions underlying the Quebec legal system to such an extent as to be incapable of combining with it.

The violation of the principle of spousal equality would be manifestly incompatible with public order as understood in international relations. Various international instruments reinforce the view that inequality between spouses in the divorce context is contrary to public order as understood in international relations. As well, the equality of spouses and the protection of a vulnerable one are philosophical underpinnings of the C.C.Q. The spousal property regime in Quebec allows the spouses to choose together which regime they wish to apply to their property. It is a regime based both on consensus and equality between the parties. Foreign judgments which contradict those conceptions, such as any decision made under art. 1096 of the Belgian Civil Code in this case, will not be recognized in Quebec. Without any evidence that there is even a possibility of a judgment in Belgium that does not infringe these fundamental public order values, the outcome of the decision under art. 1096 of the Belgian Civil Code could not be recognized in Quebec.

Per Brown J. (dissenting):

The Quebec Court of Appeal was right to intervene in the discretionary decision of the Quebec Superior Court and grant the requested stay. The appeal should be dismissed.

There is agreement with the majority that the Superior Court erred in concluding that none of the threshold conditions of art. 3137 C.c.Q. for the exercise of the discretion were met. However, the majority fails to address the Superior Court’s error of law with respect to the subject of an action, which directly affected that court’s conclusions relating to the condition of first filing with the foreign authority. These errors had a determinative impact on the Superior Court’s decision to decline to stay its ruling.

There is also disagreement with the majority regarding the Superior Court’s exercise of its discretion. The discretion conferred on the Quebec authority by art. 3137 C.C.Q. has two purposes. First, it is intended to prevent abusive forum shopping, a practice that would on the contrary be encouraged if the Quebec authority systematically deferred to a first filing with a foreign authority. Second, the international lis pendens exception is also intended to avoid a multiplicity of proceedings and a risk of conflicting judgments. The Superior Court erred in ruling out this risk when it found that the claims concerning the partition of the family patrimony and the compensatory allowance had been submitted to the Quebec court first and that the Cour d’appel de Bruxelles could also order a stay with respect to the claims that have been submitted to the Belgian court first. The Superior Court should not have disregarded as it did the risk of conflicting judgments being rendered by the Quebec and Belgian courts. That was an error of law. The discretion provided for in art. 3137 C.C.Q. cannot be exercised without giving serious consideration to the very purpose of this article, which is to avoid conflicting judgments.

The courts and the authors recommend that the criteria developed in the context of the doctrine of forum non conveniens be applied to international lis pendens cases. These criteria must be assessed from the specific perspective of art. 3137 C.C.Q., which is not the same as that of art. 3135 C.C.Q. The legislature has provided that the Quebec court’s power to decline to exercise its jurisdiction on the basis of forum non conveniens is exceptional in nature. In contrast, ordering a stay in a case of international lis pendens under art. 3137 C.C.Q. is not exceptional; in a spirit of cooperation based on international comity, Quebec courts are in fact quite open to doing so. Accordingly, it is not necessary to establish that the foreign authority is clearly more appropriate, as is the case in the context of forum non conveniens. In the context of international lis pendens, it is enough to show that the foreign authority is an appropriate forum.

The Superior Court also erred on the issue of the law applicable to the revocation of gifts, that is, on the main issue on which the parties disagree. Contrary to the Superior Court’s conclusion, under the Quebec rules of private international law Belgian law is the law applicable to the revocation of the gifts, at least in respect of the gifts that were given while the parties were residing in Belgium.

Finally, the Superior Court did not consider the fact that an eventual Quebec judgment liquidating the parties’ matrimonial regime would not be susceptible of recognition in Belgium, where the parties still own numerous assets. Where, as in this case, a foreign authority to which a dispute was submitted first is an appropriate forum, the Quebec authority should be circumspect in exercising its discretion to not stay its ruling. First, if the Quebec authority declines to stay its ruling, it and the foreign authority could render conflicting judgments, and the Quebec proceedings could prove to be pointless in the event that the foreign authority to which the dispute was submitted first rendered its decision before the Quebec court. Second, if the Quebec authority were to exercise its discretion not to stay its ruling, there might then be a real risk that the Quebec decision would not be susceptible of recognition by the foreign authority to which the dispute was submitted first specifically because of the Quebec authority’s violation of the lis pendens rule. In this case, the fact that a Quebec decision is not recognized in another country is an important factor, as the parties have numerous assets in Belgium, which means that a Quebec judgment that cannot be recognized in that country could be of no effect in respect of those assets. It makes no sense for a Quebec court to partition the numerous assets located outside Quebec, given that the resulting judgment would not be susceptible of recognition at the place where the assets are located.

Citation:                                                R.S. v. P.R., 2019 SCC 49

SCC File Nos. :                                    37861

Reasons for Judgment:                       Gascon J. (Wagner C.J. and Moldaver, Karakatsanis and Martin JJ. concurring)

Concurring Reasons:                          Abella J.

Dissenting Reasons:                           Brown J.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17985/index.do

 
 
 
 
 
 

APPLICATION FOR LEAVE TO APPEAL GRANTED

Oct. 24, 2019

SCC No. Case Name Province of Origin Keywords
38734

Her Majesty the Queen v. Richard Lee Desautel

BC Constitutional law — Aboriginal law — Aboriginal rights

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

Oct. 24, 2019

SCC No. Case Name Province of Origin  Keywords
38639 IN THE MATTER OF an application in the Supreme Court of Newfoundland and Labrador for an order in the nature of certiorari, et al. NL Criminal law — Warrants 
38685 Jaden Joshua Omeasoo, et al. v. Her Majesty the Queen MB Charter of Rights  — Search and seizure 
38675 Canadian Broadcasting Corporation, Gillian Findlay, Morris Karp and David Studer v. AARC Society (Alberta Adolescent Recovery Centre)  AB Limitation of actions — Defamation — Cause of action 
38620 Wayne Oakley v. Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia, et al. NS Expropriation — Remedy — Non‑pecuniary losses 
38707 Angelina Rivers, Sharon Zehr and Barry Zehr v. Waterloo Regional Police Services Board and Waterloo Regional Police Association ON Courts — Jurisdiction — Civil procedure 
 
 
 
 
 
 

APPLICATION FOR LEAVE TO APPEAL GRANTED

Oct. 24, 2019

38734

Her Majesty the Queen v. Richard Lee Desautel

(B.C.)

Constitutional law — Aboriginal law — Aboriginal rights — Hunting

Mr. Desautel shot and killed an elk in the Arrow Lakes region near Castlegar, British Columbia. He did not have a hunting license and he is not a resident of Canada. He is a member of the American Lakes Tribe of the Confederated Tribes of the Colville Reservation, a citizen of the United States and he lives on the Colville Indian Reserve in Washington State. He was charged with hunting without a licence and hunting big game while not being a resident of British Columbia, contrary to ss. 11(1) and 47(a) of the Wildlife Act, R.S.B.C. 1996, c. 488. At trial, he maintained that he was exercising an Aboriginal right to hunt for ceremonial purposes in the traditional territory of his ancestors. The Provincial Court acquitted Mr. Desautel. A summary conviction appeal was dismissed. An appeal to the Court of Appeal was dismissed.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

Oct. 24, 2019

38639

IN THE MATTER OF an application in the Supreme Court of Newfoundland and Labrador for an order in the nature of certiorari, and mandamus seeking to quash the refusal by a Provincial Court Judge to issue a section 487.02  Criminal Code  assistance order, sought by the Crown to give effect to a section 492.2(1)  Criminal Code  transmission data recorder warrant

(N.L.)

Criminal law — Warrants — Transmission data recorder warrants

The RCMP applied for a transmission data warrant (“TDR warrant”) under s. 492.2(1)  of the Criminal Code, in the course of a drug investigation. They were looking for information on unknown telephone numbers associated with an identified telephone number, but the TDR warrant would only capture the unknown numbers and not the names and addresses associated with those numbers. As a result, the RCMP sought an assistance order pursuant to s. 487.02  of the Criminal Code , which, it argued, would require telecommunications service providers (“telcos”) to give the police the subscriber information. The Provincial Court judge refused to issue the assistance order for want of jurisdiction, finding that subscriber information was not “transmission data” within the meaning of s. 492.2  of the Criminal Code  and could therefore not be accessed through an assistance order for a TDR warrant. The Superior Court agreed and dismissed the Crown’s application for certiorari and mandamus. A majority of the Court of Appeal allowed the appeal and remitted the matter to the Provincial Court. Green J.A., dissenting, would have dismissed the appeal.

38685

Jaden Joshua Omeasoo v. Her Majesty the Queen

- and between -

Benjamin White v. Her Majesty the Queen

(Man.)

Charter of Rights  — Search and seizure — Arbitrary detention — Right to counsel

Police received a 911 call regarding a road‑rage incident involving firearms. The information provided by the caller, who was not involved in the firearms incident, was that a red “Chevy” Silverado truck had cut off the driver of another vehicle after he drove up beside the truck and gestured at its driver. Two males exited the truck armed with handguns. There were no shots fired. The caller also provided a description of the men. The officers testified that they believed they had reasonable grounds to arrest Omeasoo and White because the truck was found in the area of the firearms incident, it matched the general description of the suspect vehicle, there were two male occupants and they found the bullet in the washroom where the passenger had just been. The officers arrested Omeasoo and White for a firearms investigation and the officers conducted a search. Omeasoo and White were charged with possession of cocaine, methamphetamine and ecstasy for the purpose of trafficking (section 5(2)  of the Controlled Drugs and Substances Act, SC 1996 c. 19 ), and firearms offences pursuant to ss. 86(2)8890(1) and 94 of the Criminal Code. White was charged with additional weapons offences pursuant to ss. 92 (1) ‑(2) and 117.01(1) of the Criminal Code. At the conclusion of a voir dire, the trial judge found that the rights of Omeasoo and White under sections 8, 9 and 10 of the Charter were breached, excluded the evidence seized by the police pursuant to s. 24(2) of the Charter, and summarily dismissed the charges. The Court of Appeal allowed the Crown appeals and ordered a new trial.

38675

Canadian Broadcasting Corporation, Gillian Findlay, Morris Karp and David Studer v. AARC Society (Alberta Adolescent Recovery Centre)

(Alta.)

Limitation of actions — Defamation — Cause of action

The respondent AARC provides treatment for addicted adolescents. The applicants are the CBC and three of its employees. In 2009, CBC broadcast a Fifth Estate program entitled “Powerless”, which criticized AARC. Shortly after the broadcast, CBC posted the “Powerless” program on its webpage. An action in defamation was commenced by AARC against CBC et al. in 2011. The program remained on the webpage until sometime in March 2017 when it was removed. CBC reposted the program later in 2017. After this reposting, AARC filed an application seeking an order granting it permission to amend its claim. The Court of Queen’s Bench of Alberta denied some of the amendments on the basis that they represented a marked departure from AARC’s original strategy. The Court of Appeal was divided. Wakeling J.A. allowed the appeal. In his view the chambers judge made reversible errors. Pentelechuk J.A. concurred in the result, and McDonald J.A. dissented.

38620

Wayne Oakley v. Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia, Atlantic Mining NS Corp (formerly known as DDV Gold Limited), a body corporate and Nova Scotia Utility and Review Board

(N.S.)

Expropriation — Remedy — Non‑pecuniary losses

Atlantic Mining NS Corp owns and operates a gold mine in the rural Nova Scotia community of Moose River Gold Mines. Atlantic acquired some surface title by negotiation. In other cases, Atlantic resorted to expropriation. Wayne Oakley purchased his property in this region in 1997. Atlantic wanted Mr. Oakley’s property for its mine and negotiations were unsuccessful. As a result, in 2012 Atlantic expropriated Mr. Oakley’s residential property. This was done through a vesting order issued by the Minister of Natural Resources under s. 70 of the Mineral Resources Act, SNS 1990, c. 18. In addition to out‑of‑pocket expenses, Mr. Oakley claimed he should be paid non‑pecuniary “losses” for disturbance. The parties agreed on a market value for the residential property but the remaining issue of disturbance losses went before the Nova Scotia Utility and Review Board for determination. The Utility and Review Board agreed with Mr. Oakley that he was entitled to non‑pecuniary “losses” as damages and awarded him the maximum allowable statutory amount of 15% of the market value of his home. The Court of Appeal allowed the appeal and replaced the damages award with a 2% award instead.

38707

Angelina Rivers, Sharon Zehr and Barry Zehr v. Waterloo Regional Police Services Board and Waterloo Regional Police Association

(Ont.)

Courts — Jurisdiction — Civil procedure — Class actions

The applicants, who are female police officers of the Waterloo Regional Police Services (“police officers”), sought certification of a class action on behalf of all women members of that police force, asserting multiple claims relating to systemic gender‑based workplace discrimination and harassment, including breach of s. 15  Charter  rights and, as against the Waterloo Regional Police Services Association, breach of the duty of fair representation. The respondents, who are, the applicants’ employer and exclusive bargaining agent, brought a motion challenging the Superior Court’s jurisdiction, arguing exclusive jurisdiction over the matter belonged to labour arbitrators and the Human Rights Tribunal of Ontario (“HRTO”). The motions judge concluded that the Superior Court lacked jurisdiction over the claims. The Court of Appeal dismissed the appeal.