No CrossRef data available.
Article contents
Giving Effect to Out-of-Province Judgments in Class Actions
Published online by Cambridge University Press: 09 March 2016
Summary
In Canada Post Corp. v. Lépine, the Supreme Court of Canada upheld the lower Québec courts’ refusal to recognize an Ontario judgment approving an out-of-court settlement of a class action that included Québec residents. In reaching its decision, the Supreme Court of Canada did not extend to the non-resident plaintiff members of the class the jurisdictional test applicable to defendants. The decision was based on the lack of procedural fairness accorded to the non-residents. The Court also rejected a literal interpretation of Article 3164 of the Québec Civil Code, which requires that the foreign court must have had jurisdiction in accordance with Québec rules, including the doctrine of forum non-conveniens. To apply this doctrine is not compatible with inter-provincial and international comity as it defeats the liberal approach taken by the Civil Code with respect to the recognition of foreign judgments. This settles a long-lasting controversy. As a result of this decision, enhanced procedural fairness has become the best defence available to non-resident, non-attorning plaintiffs in inter-provincial and international class actions. Finally, the Court hoped that, in the spirit of mutual comity, the provincial legislatures would develop more effective methods for managing jurisdictional disputes involving national class actions.
- Type
- Notes and Comments / Notes et commentaires
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 46 , 2009 , pp. 397 - 414
- Copyright
- Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2009
References
1 Class action brought in Canada involving residents of more than one Canadian province or territory.
2 Class action brought in Canada or abroad involving residents of Canada and of one or more foreign countries.
3 Civil Code of Quebec, art. 2848, para. 2, which deals with the authority of a Québec final judgment deciding a class action. Such judgment has no res judicata effect with respect to parties and members who have excluded themselves from the group.
4 See Currie v. McDonald’s Restaurants of Canada Ltd (2005), 74 O.R. (3d) 321 at 329, para. 13 [Currie].
5 Morguard Investments Ltd v. De Savoye, [1990] 3 S.C.R. 1077 [Morguard].
6 Canada Post Corp. v. Lépine, 2009 SCC 16 [Lépine]
7 The Uniform Law Conference of Canada has recommended means for coordinating class proceedings in Canada so as to minimize uncertainty arising from multi-jurisdictions class proceedings. Uniform Law Conference of Canada, Report of the Uniform Law Conference of Canada’s Committee on the National Class and Related Inter-jurisdictional Issues: Background, Analysis and Recommendations, Uniform Law Conference of Canada, Vancouver, 9 March 2005; and Supplementary Report on Multi-jurisdictional Class Proceedings in Canada, Uniform Law Conference of Canada, Edmonton, August 2006 ˂http://www.ulcc.ca˃. In Québec, there is a central registry of applications for authorization to institute class actions kept at the office of the Superior Court. Code of Civil Procedure, art. 1051.
8 For the legislation in force in Canada, see ˂http://www.branmac.com˃. In Québec, specific rules exist with respect to the approval of out-of-court settlements that are different from those of other provinces. Code of Civil Procedure, art. 1025.
9 See, e.g., Alberta, Class Proceedings Act, S.A. 2003, c. C-16.5, s. 17(1) (b); B.C., Class Proceedings Act, R.S.B.C., 1996, c. 50, s.16(2); Newfoundland, Class Actions Act, S.N.L. 2001, c. C-18.1, s. 17(2).
10 See, e.g., Manitoba, Class Proceedings Act, C.C.S.M., c. C-130, s. 16; Saskatchewan, Class Actions Act, S.S. 2001, c. C-12.01, s.18; Nova Scotia, Class Proceedings Act, S.N.S. 2007, c. 28, ,s.11 (1 ) (f); Ontario, Class Proceedings Act, S.O. 1992, c. 6, s. 9; Québec, Code of Civil Procedure, arts. 1006 (e), 1007,1008.
11 The legislation of several provinces specifically contemplate the inclusion of non-resident class members, e.g., Alberta, S.A. 2003, c. C-16.6, ss. 7(1 ) ,(3) and 17(1) (b); British Columbia, R.B.C. 1996, c. 50, ss. 6(2) and 16(2); Manitoba, C.C.S.M. c. C 130, ss. 6(3) and 16; Saskatchewan, S.S. 2001, c. C-12.01, s. 18(2); Newfoundland, S.N.L. 2001, c. C-18.1, ss. 7(2) and 17(2). In Ontario, the courts have allowed it as the Class Proceedings Act, S.O. 1992, c. 6, is silent on nonresidents. The same is true in Québec. More generally, see Code of Civil Procedure, arts. 999 to 1051; and Civil Code of Quebec, art. 2848 (presumption of res judicata), and arts. 2897 and 20908 (prescription).
12 Castel, J.-G. and Walker, J., Canadian Conflict of Laws, 6th edition (Markham: Butterworths, 2005), ch. 14.Google Scholar
13 Civil Code of Quebec, arts. 3134–3140 and 3155–3168, book 10, titles 3 and 4.
14 Morguard, supra note 5.
15 Hunt v. T & N plc., [1993] 4 S.C.R. 289.
16 Beals v. Saldanha, [2003] S.C.R. 416 [Beals].
17 Currie, supra note 4 at 332, para. 20 (Sharpe J.A.).
18 Ibid.
19 Morguard, supra note 5. In Ontario, see Mignacca v. Merck Frosst Canada Ltd. (2009), 95 O.R. (3d) 269 (Div. Ct.) where it was held that a motion judge is not bound by principles of comity and full faith and credit to defer to a Saskatchewan order.
20 Currie, supra note 4 at 335, para. 30.
21 Lépine, supra note 6. Note that the Supreme Court of Canada, at para. 14, called the Ontariojudgment an external rather than a foreign one despite the language used in the Civil Code of Quebec: “foreign decisions, décisions étrangères” (at art. 3155 et seq.), which does not make a distinction since both types ofjudgments are treated the same way.
22 Canada Post Corp. v. Lépine, 2005 Can LII 26419 [Lépine (Sup. C.)].
23 Civil Code of Quebec, arts. 3134–37, 3148, 3149, and 3155, 3164, 3165, and 3168, which deal with private international law especiallyjurisdiction and foreign judgments.
24 This article covers the defences to the recognition and enforcement of foreign decisions.
25 Lépine (Sup. C.), supra note 22 at para. 38.
26 Canada Post Corp. v. Lépine, [2007] R.J.Q. 1920 [Lépine (C.A.)].
27 Ibid. at para. 71.
28 Ibid. at para. 73.
29 Ibid. at para. 62.
30 Ibid. at paras. 69 and 90.
31 Ibid. at para. 62; and Castel and Walker, supra note 12 at 14–23, para. 14–4e; Goldstein, G. and Groffier, E., Traité de droit civil, Droit international privé, t. 1 (Cowansville, PQ: Yvon Blais, 1998) at 417, para. 175Google Scholar; Glenn, H.P., “Droit international privé,” in La Réforme du code civil, t. 3 (Québec City: Presses de l’Université Laval, 1993) at 669, paras 116–19, and 769–73Google Scholar; and Talpis, J.A. and Castel, J.-G., “Interpreting the Rules of Private International Law,” in La Réforme du code civil, t. 5 (Québec City: Presses de l’Université Laval, 1993) at 801, paras 485–87 and 916–17.Google Scholar Civil Code of Quebec, art. 3164 reads as follows: “The jurisdiction of foreign authorities is established in accordance with the rules applicable to Quebec 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.” This is called the mirror principle since foreign rules of jurisdiction must reflect Quebec rules
32 Civil Code of Quebec, 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.” This is called the little mirror since the foreign court in deciding whether to exercise jurisdiction must apply Québec notions of forum non conveniens, see the Lépine case, supra note 6 at para. 28. The rules found in arts. 3164 and 3135 were not part of Québec law prior to the coming into force of the Civil Code of Quebec on 1 January 1994 nor are they found in the 1975 Report on Private International Law prepared by the Civil Code Revision Office.
33 See Saumier, G., “The Recognition of Foreign Judgments in Quebec: The Mirror Cracked” (2002) 78 Can. Bar. Rev. 677 at 691–94.Google Scholar Talpis, J.A., If I Amfrom Grand-Mère Why Am I Being Sued in Texas? Responding to Inappropriate Foreign Jurisdiction in Quebec- United States Crossborder Litigation (Montréal: Thémis, 2001) at 109.Google Scholar Note that in Hocking c. Haziza et HSBC Canada, 2008 QCCA 800 (Bich J.A. for the majority of the Quebec Court of Appeal) at para. 181, Québec courts must first determine whether the requirements of Article 3168 of the Civil Code for personal actions of a patrimonial nature are fulfilled. Second, they must establish the existence of a substantial connection between the dispute and the foreign court that was seized of the class action by virtue of Article 3164 of the Civil Code. Third, they must assess the appropriateness of the foreign court’s decision to exercise jurisdiction by examining how well that decision harmonizes with the general provisions of Québec’s rules of private international law, including the doctrine of forum non conveniens in Article 3135. She added that the fundamental principles of order and fairness must also be considered when determining the jurisdiction of the foreign court (at para. 181).
34 Saumier, supra note 33 at 691.
35 Lépine (C.A.), supra note 26 at para. 89.
36 Morguard, supra note 5.
37 “(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 Quebec, whether it has acquired the authority of a finaljudgment (res judicata) or not, or is pending before a Quebec authority, in first instance , or has been decided in a third country and the decision meets the necessary conditions for recognition in Quebec.”
38 Lépine (C.A.), supra note 26 at paras. 75 and 78.
39 Ibid. at paras. 59–61.
40 Lépine, supra note 6 at para. 36.
41 Ibid. at paras. 35–36. “This approach introduces a degree of instability and unpredictability that is inconsistent with the standpoint generally favorable to the recognition of foreign or external judgments that is evident in the provisions of the Civil Code” (at para. 36).
42 Ibid. at paras. 34–35. Art. 3165 deals with situations where the jurisdiction of the foreign authority is not recognized and art. 3168 lists the only cases where the jurisdiction of a foreign authority is recognized in personal actions of a patrimonial nature.
43 Ibid. at para. 36. Civil Code of Quebec, art. 3136: “Even though a Quebec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Quebec, where proceedings cannot possibly be instituted outside Quebec or where the institution of such proceedings outside Quebec cannot reasonably be required.”
44 Currie, supra note 4 at para. 31; see also paras. 21, 30, and 41–42.
45 Lépine, supra note 6 at para. 42.
46 Ibid. at para. 43.
47 Morguard, supra note 5 at para. 43.
48 Lépine, supra note 6 at para. 50.
49 Ibid. at para. 57.
50 Ibid.
51 Note that the courts are not constrained by constitutional considerations from certifying an inter-provincial plaintiff class although it is not settled whether section 92 or 129 of the Canadian Constitution is the proper basis for provincial jurisdiction. See Caron v. Bre-X Minerals Ltd. ( 1999), 43 O.R. (3d) 441; and Western Canada Shopping Centres Inc. v. Dutton, [ 2001 ] 2 S.C.R. 534.
52 Monestier, T.J., Personal Jurisdiction over Non-Resident Plaintiff in Multi-Jurisdictional Class Actions: Have We Gone the Wrong Road? Working Paper no. 08-05 (23 October 2008) at 9,Google Scholar citing McCutcheon v. The Cash Store (2006), 80 O.R. (3d) 644 (S.C); and Harrington v. Dow Corning Corp. (1996), 22 B.C.L.R. (3d) 97 (S.C.), aff’d [2000] 193 D.L.R. (4th) 67 (C.A.).
53 Ibid. at 22.
54 Beals, supra note 16 at para. 76. The function of the award is the issue, not its size: Kidron v. Green ( 1999), 48 O.R. (3d) 775 (Gen. Div.), leave to appeal refused at 784.
55 Castel and Walker, supra note 12, ch. 14, para. 14.3. See also Civil Code of Quebec, art. 3158.