2020 QCCA 1708, 2020 QCCA 1708

Geotility Systems Corporation c. Manisy inc. 2020 QCCA 1708 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029221-207 ( 500-17-109148-190 ) MINUTES OF HEARING DATE: December 10, 2020 THE HONOURABLE STÉPHANE SANSFAÇON, J.A. APPLICANT COUNSEL Geotility systems corporation Mtre Daniel Baum M tre geneviève claveau ( Langlois Avocats ) By videoconference RESPONDENT COUNSEL MANISY INC.

Mtre Pascale Dionne-Bourassa ( D3B AVOCATS INC. ) By videoconference DESCRIPTION: Application for leave to appeal from a judgment rendered in the course of the proceeding on October 22, 2020 by the Honourable Marie-Anne Paquette of the Superior Court , District of Montreal (Art. 31 para. 2 and 357 C.C.P. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 9:31 Commencement of the hearing. Identification of counsel. Submissions by Mtre Baum. 9:58 Submissions by Mtre Dionne-Bourassa. 10:07 Reply by Mtre Baum.

10:09 BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] Geotility Systems Corporation (“Geotility”) is a company domiciled in Kelowna, British Columbia, operating in the heating, ventilation and air conditioning (HVAC) industry. To assist it with a contemplated transaction, it entered into a consulting agreement (“Consulting Agreement”) with Manisy inc. (“Manisy”) so as to be provided with consulting services.

Manisy is a Quebec-based company, whose sole shareholder and director is Andrew Kuhn. [ 2 ] On September 12, 2019, Manisy filed an action on account against Geotility to claim $1,045,870 for services rendered pursuant to the Consulting Agreement.

Geotility objected on the ground that the courts of Quebec lack jurisdiction over this dispute and requested that the Superior Court either dismiss the claim for that reason or, alternatively, decline jurisdiction in favour of the British Columbia courts. [ 3 ] On October 22, 2020, the Superior Court (the Honorable Madam Justice Marie-Anne Paquette) dismissed Geotility’s application.

Geotility now seeks leave to appeal from that decision. [ 4 ] At the centre of the dispute is the Consulting Agreement, which provides: Place Where Services Will be Rendered: The Consultant will perform most services in accordance with this Agreement at 39 Birch Hill, Baie-d’Urfé, Quebec, H9X 3J1.

However, the Consultant will also perform services on the telephone and using other methods of telecommunications and at other places as designated by the Corporation to perform these services in accordance with this Agreement. [ 5 ] According to the applicant, the Superior Court judge erred in law by asserting jurisdiction over the dispute on the basis of a novel and incorrect

interpretation of art. 3148(3) C.C.Q ., which provides: [ 6 ] Article 3148 (3) C.C.Q. : 3148. In personal actions of a patrimonial nature, Québec authorities have jurisdiction in the following cases: 3148.

Dans les actions personnelles à caractère patrimonial, les autorités québécoises sont compétentes dans les cas suivants : […] […] (3) a fault was committed in Québec, injury was suffered in Québec, an injurious act or omission occurred in Québec or one of the obligations arising from a contract was to be performed in Québec ; 3° Une faute a été commise au Québec, un préjudice y a été subi, un fait dommageable s’y est produit ou l’une des obligations découlant d’un contrat devait y être exécutée ; […] […] [Emphasis added] [Soulignement ajouté] [ 7 ] Contrary to what the applicant asserts, I do not see that the judgment under appeal represents a significant deviation from the text of the Civil Code of Québec , nor that it is not in line with the prevailing jurisprudence on that matter . [1] [ 8 ] In all the judgments of this Court to which the applicant referred me, the contract did not specify where the obligations arising from the contract were to be performed.

That omission led the Court to look for elements that could lead to the conclusion that at least some of the obligations were nonetheless required to be performed in Quebec. [2] Moreover, while it is true that “there is a distinction between an obligation being executed in fact in Quebec, and that obligation having to be executed in Quebec according to the contract”, [3] one need not look any further nor try to make distinctions when there is no need for it, where the contract itself provides as clearly as the Consulting Agreement does that “[t]he Consultant will perform most services in accordance with this Agreement at 39 Birch Hill, Baie-d’Urfé, Quebec”. [ 9 ] In her judgment, the Superior Court judge wrote: [30] In the case at hand, the Consulting Agreement deals with the place of performance of the contract.

It expressly states that most of the obligations will be performed in Québec. Even if the relevant provision leaves an opening to alternative places, the general principle set out for the place of performance of most of the obligations under the Consulting Agreement cannot be disregarded. [ 10 ] I see no error in that reasoning, nor do I see a departure from the jurisprudence or a misreading of art. 3148(3) C.C.Q . As none of

the conditions of art. 31 C.C.P . are met, I do not believe that the attention of the Court is warranted. FOR THESE REASONS, THE UNDERSIGNED : [ 11 ] DISMISSES the application, with costs. STÉPHANE SANSFAÇON, J.A.