2012 QCCQ 1261, 2012 QCCQ 1261

JG1553 Bousquet c. Acer America Corporation (Canada) 2012 QCCQ 1261 COURT OF QUEBEC “Practice Division” CANADA PROVINCE OF QUEBEC DISTRICT OF HULL CITY OF GATINEAU “Civil Division” No.: 550-22-012717-102 DATE: February 22, 2012 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE JEAN-FRANÇOIS GOSSELIN, J.C.Q. ______________________________________________________________________ ALEXANDRE BOUSQUET Plaintiff-Respondent v.

ACER AMERICA CORPORATION (CANADA) and ACER AMERICA CORPORATION Defendants-Petitioners ______________________________________________________________________ JUDGMENT on Motion for Declinatory Exception ______________________________________________________________________ [ 1 ] Do Quebec courts have jurisdiction and, if so, does

section 49 of the Consumer Protection Act (" CPA ") still apply when the conventional warranty provided in the contract to purchase a computer is called into play, if that purchase was carried out online while the purchaser resided in Ontario, and the first breakdown occurred while he was still residing in Ontario, but if the second breakdown took place after he had moved to Quebec? [ 2 ] Essentially, these are the questions raised by the motion for declinatory exception before the Court.

They are in fact rather difficult questions, particularly with respect to the applicable law, since they resurrect a private international law debate that was thought to be resolved regarding the immediate application of the provisions governing the application of warranties enacted in the Consumer Protection Act and of the provisions conferring the right to punitive damages in the event of the systematic violation of this statute. This debate takes place against the backdrop of

article 3076 of the Civil Code of Québec (" CCQ "). 1. Background [ 3 ] Mr. Bousquet alleges that the manufacturer Acer America Corporation (Acer America) and the distributor Acer America Corporation (Canada) (Acer Canada) knowingly infringe

section 49 of the Quebec Consumer Protection Act by systematically refusing to assume the cost of shipping computers under warranty that are sent to them for repair. He is suing for $60,100: $100 in compensatory damages and $60,000 in exemplary damages. [ 4 ] Mr. Bousquet is originally from Quebec and maintains a residence at his parents' home in Montreal, where he stores his personal belongings, keeps a bank account, and spends his summers.

He purchased his computer online, however, while he was a student in Ottawa, after having previously studied in Manitoba and the United States. [ 5 ] Through their motion for declinatory exception, Acer Canada and Acer America now seek a declaration that the courts of Quebec lack jurisdiction to hear the dispute and, alternatively, should they have jurisdiction, that they should nevertheless decline jurisdiction on the basis of the doctrine of forum non conveniens .

Finally, also alternatively and in the event Quebec courts have and/or should assume jurisdiction over the dispute, Acer Canada and Acer America ask that Ontario law be declared applicable to this case. [ 6 ] Mr.

Bousquet replies to the motion by arguing his connection to Quebec territory and law, the temporary nature of his stay in Ontario, the fact that he has resumed residency in Quebec since the contract was formed, and his intention to contract with a company that does business in Quebec and to subject the transaction finalized online to the Quebec Consumer Protection Act , which he maintains should be interpreted so broadly that it should benefit consumers from Quebec who enter into consumer contracts outside Quebec. [ 7 ] Mr. Bousquet invokes a number of legal concepts, but the

interpretation he proposes for them has muddled the picture. It is

worth taking the time to put things back into proper perspective. [8] Before we begin, however, a brief review of the underlying facts is in order. 2. The Facts [9] On November 11, 2009, while he was studying at the University of Ottawa and residing in that city, Mr. Bousquet purchased aGateway brand computer manufactured by Acer. [10] He finalized the transaction on the Staples store website, which does business in Quebec under the corporate name Bureau engros, after being assured that the contract displayed on the screen contained no clause restricting or limiting the legal warranty.

He thenpaid with his credit card. The computer was delivered the next day to his home at 336 Chapel Street in Ottawa, with the invoice attached.It indicated that the computer had been sent from the Montreal Distribution Centre located at 4141 Autoroute 440 West, Laval, Quebec. [11] Mr. Bousquet started the computer, which then required five operations before he could access it. One of these operations wasthe acceptance of Gateway and Microsoft's terms and conditions. In all likelihood, Mr.

Bousquet agreed to them, as he was subsequentlyable to use the computer. [12] On April 14, 2010, however, while he was still living in Ottawa, the computer broke down due to a problem related to theelectrical power connection. Mr. Bousquet then contacted Acer and spoke to two individuals, first an agent and then the agent'ssupervisor.

He told them that the manufacturer was obligated to assume shipping costs under the Quebec Consumer Protection Act.Since they both refused to assume shipping costs, he personally paid to send the computer to the service centre, spending $15 to do so.The computer was repaired then returned to Mr. Bousquet's residential address at the manufacturer's expense. [13] On September 15, 2010, the computer broke down again. This time the problem was caused by the start button. In themeantime, however, Mr. Bousquet had moved to Gatineau; thus, his residence was in Quebec.

As he did the first time, he contacted themanufacturer and, speaking to a woman named Daya, informed her of the manufacturer's obligation to assume shipping costs. The agentgave him a [translation] "repair number", explained how to send his computer, and refused to assume shipping costs because that wascontrary to Gateway/Acer policy. The call centre agent in fact suggested to him that the manufacturer considers itself bound by its ownpolicies and commercial practices only, without regard to provincial legislation. Mr. Bousquet recorded this telephone conversation. [14] Once again, Mr.

Bousquet sent the computer to the manufacturer at his own expense. Again, it cost him $15. The machine wassubsequently returned to him, suitably repaired at no cost, at his new address in Gatineau. [15] Alleging a repeated and intentional violation of

section 49 of the Consumer Protection Act because of the failure to pay shippingcosts totalling approximately $30, Mr. Bousquet now seeks $60,000 in punitive damages. [16] His action is based on

section 49 of the CPA, which provides that "[t]he merchant or the manufacturer shall assume the real costof transportation or shipping incurred in respect of the performance of a conventional warranty, unless otherwise stipulated in the writingevidencing the warranty". At this stage, Acer suggests that the client assented to a stipulation to the contrary effect by accepting theterms and conditions proposed during the computer activation. But that is not the issue raised in the motion now before the Court. 3.

Analysis [17] That said, a number of preliminary matters must be clarified at the outset. [18] The first concerns the legal characterization of the contract that gives rise to this dispute.

Article 3078 CCQ establishes that thischaracterization is to be carried out pursuant to the law of the court hearing the matter: “Characterization is made according to the legalsystem of the court seised of the matter”. Consequently, the contract at issue is a consumer contract within the meaning of both the CivilCode of Québec (article 1384 CCQ) and the Consumer Protection Act. [19] The second concerns the characterization of the juridical fact whereby Mr.

Bousquet entrusted his computer to the manufacturerso that the latter would repair it pursuant to the limited, one-year warranty it had given at the time the contract was formed. This isindeed the performance of a conventional warranty set out in the purchase contract, within the meaning in

section 49 CPA, not theconclusion of two distinct service contracts finalized following discussions between Mr. Bousquet and the representatives of Acer, as Mr.Bousquet suggests. Consequently, we must refer to the initial contract to decide the declinatory exception invoked by Acer, since theaction brought by Mr. Bousquet is ancillary thereto. [20] The third concerns the irrelevance of the unilateral intention of one of the parties to the contract regarding the identification ofthe competent judicial forum.

It is well established that, while the parties may decide jointly to subject any dispute arising from acontract to the jurisdiction of the courts of a legal system of their choosing, it is not open to either of the parties to unilaterally impose itspreference on the others. Consequently, Mr. Bousquet's unilateral intention in this respect is not relevant. [21] What is relevant, however, are the provisions in the Civil Code of Québec governing international law, as well as theinterpretation of those provisions by the courts.

Therefore, the task to which we shall now devote ourselves is purely legal in nature. [22] It is germane to the case to begin our analysis by noting that the burden of establishing that the Quebec courts are competent tohear the case falls on Mr. Bousquet, as the Court of Appeal of Quebec decided in Baird v. Matol Botanical International Ltd., (QC CA), [1994] RDJ 282 (CA), AZ-94011471, at 2 [translation]

The courts have consistently held that the plaintiff must allege all the elements required to justify the territorial jurisdiction of the court before which the action is brought. If this jurisdiction is challenged by a motion for declinatory exception and if the facts are contested, the plaintiff bears the burden of proving, through evidence adduced in the context of the motion for declinatory exception, all of the elements justifying the court's jurisdiction. [ 23 ] Since then, this principle has been reiterated consistently by the courts of Quebec, as can be seen in particular in Hyprescon Inc. v.

Madison Chemical Industries Inc ., JE 2001-1907 (Sup Ct), AZ-50100684 , where Monast J wrote the following, at paragraph 15: [ translation ] It is accurate to state that, when a motion for declinatory exception is presented against an action instituted in a district outside that of the defendant's domicile, the plaintiff bears the burden of establishing the jurisdiction of the court before which it brought its action. The enactment of

article 3148 CCQ did not modify this principle. In this case, therefore, it is up to Hyprescon to establish the jurisdiction of the Quebec courts. [ 24 ] Therefore, we must ask the following questions: First, has Mr. Bousquet proved that one of the conditions conferring jurisdiction on Quebec courts has been met in this case? Second, if he has, should this jurisdiction be accepted or declined in favour of a more appropriate foreign forum?

And third, if the Quebec court should accept jurisdiction, should the law of Quebec or that of Ontario govern the dispute? [ 25 ] These are the issues we shall now discuss. 3.1 Do Quebec courts have jurisdiction? [ 26 ] We must refer to articles 3134 to 3154 of the Civil Code of Québec to determine the international jurisdiction of the Quebec authorities.

Article 3134 reiterates the spirit of

article 68 of the Code of Civil Procedure ( CCP ) by stating that, "[i]n the absence of any special provision, the Québec authorities have jurisdiction when the defendant is domiciled in Québec". But that is not the case in the matter before us. [ 27 ] We must proceed with a consideration of the more specific provisions, the first being

article 3148 CCQ , instead of

article 68 CCP , because it is the first one that circumscribes marks out the specific rules attributing jurisdiction when, as in the case before us, the remedy being considered is a personal action of a patrimonial nature. 3148.

In personal actions of a patrimonial nature, a Québec authority has jurisdiction where (1) the defendant has his domicile or his residence in Québec; (2) the defendant is a legal person, is not domiciled in Québec but has an establishment in Québec, and the dispute relates to its activities in Québec; (3) a fault was committed in Québec, damage was suffered in Québec , an injurious act occurred in Québe c or one of the obligations arising from a contract was to be performed in Québec ; (4) the parties have by agreement submitted to it all existing or future disputes between themselves arising out of a specified legal relationship; (5) the defendant submits to its jurisdiction.

However, a Québec authority has no jurisdiction where the parties, by agreement, have chosen to submit all existing or future disputes between themselves relating to a specified legal relationship to a foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction of the Québec authority. [Emphasis added.] [ 28 ] It is also interesting to consider the commentary of the Minister of Justice on this new provision ( Commentaires du ministre de la Justice , vol II (Les Publications du Québec, 1993) at 2008-2009): [ translation ] Some of the jurisdictional criteria set out in

article 68 CCP are reiterated. But since

article 3148 is aimed at providing a basis for the jurisdiction of Quebec authorities in international private law matters, certain criteria for jurisdiction provided for the purposes of domestic law were set aside because the connections they created with the Quebec authorities were too tenuous. That is the case with respect to the presence of the property of the defendant and the formation of the contract in Quebec (article 68(1) and (3)). [Emphasis added.] [ 29 ] That said, in this case, Mr.

Bousquet has not demonstrated that Acer Canada and/or Acer America are domiciled in Quebec, that they have an establishment in Quebec, or that the dispute relates to their activity in Quebec. On the contrary, the evidence reveals that neither of them are domiciled in Quebec or have an establishment here. Acer Canada's head office is in Mississauga, Ontario, and Acer America's head office is in San Jose, California, U.S.A. In the circumstances, it is clear that subparagraphs (1) and (2) of the first paragraph of

article 3148 do not apply in this case. [ 30 ] The same can be said of subparagraphs (4) and (5) and the second paragraph, in that, on the one hand, the parties never agreed to submit this dispute to the Quebec courts and, on the other, the defendants never recognized their jurisdiction. Indeed, as noted above, care must be taken in this case not to confuse Mr. Bousquet's unilateral intention to submit the dispute before the Quebec courts and the consensus agreement to which the parties must clearly and freely adhere for that to take place. A mere intention and/or wish expressed

repeatedly to a co-contracting party and the failure of that co-contracting party to formally object to this intent or wish does not constituteconsent. [31] In the context of

article 3148, the only remaining avenue available to Mr. Bousquet to justify the jurisdiction of the Quebeccourts over his dispute with Acer Canada and Acer America is in subparagraph 3 of the first paragraph of this article. We shall nowdiscuss this provision. [32] At the outset, it should be pointed out that the notion of the place where "the whole cause of action arose", which wasrecognized in the former law, was not taken up in the 1994 reform, nor was the place where the contract was formed. It is to be expectedthat these two concepts, which are at the heart of the court’s jurisdiction ratione materiae set out in article 68(2) and (3) CCP, aredifferent from those enshrined in

article 3148 CCQ. The two provisions do not contemplate the same purpose.

Article 3148 governswhen the courts of Quebec have jurisdiction, while

article 68 CCP governs the judicial district in which to bring the action oncejurisdiction is acquired. [33] It should also be noted that although the wording of article 3148 (3) eliminates the notion of the place where "the whole causeof action arose", it breaks it into distinct parts, identifying the situations that give jurisdiction to the Quebec authorities as the placewhere the fault was committed, where the damage was suffered, where the injurious act occurred, and/or where one of the obligationsarising from the contract was to be performed.

In the commentary of the Minister of Justice, supra, the following is written at page 2010: [translation] The third point does not repeat the expression "the whole cause of action" as set out in the former law, since the evidence required toestablish the right of action in one country presented too many difficulties. Under paragraph (3), to ground the jurisdiction of the Quebecauthorities, it is sufficient for the fault, the damage, the injurious act, or one of the obligations arising from the contract to be in Quebec.

It appeared necessary to distinguish the notion of fault from that of the injurious act, since an injurious act is not necessarily a fault. [Emphasis added.] [34] It should be noted in passing that each ground for jurisdiction listed in paragraph 3 constitutes one of the aspects of the real andsubstantial connection required the traditional scholarly commentary for the Quebec authorities to acquire jurisdiction. In the leadingcase Spar Aerospace Ltd. v.

American Mobile Satellite Corp, 2002 SCC 78 , [2002] 4 SCR 205, the Supreme Court, per LeBel J,specifies the following, at paragraph 56: Looking at the wording of art. 3148 itself, it is arguable that the notion of a “real and substantial connection” is already subsumed underthe provisions of art. 3148(3). given that each of the grounds listed (fault, injurious act, damage, contract) seems to be an example of a“real and substantial connection” between the province of Quebec and the action.

Indeed, I am doubtful that a plaintiff who succeeds inproving one of the four grounds for jurisdiction would not be considered to have satisfied the “real and substantial connection” criterion,at least for the purposes of jurisdiction simpliciter. [Emphasis added.] [35] As a result, it is sufficient for only one of the grounds in paragraph 3 to be present for jurisdiction to be acquired: ConservieraSpA v. Paesana Import-export Inc., (QC CA), [2001] RJQ 1458 (CA); Morales Moving and Storage Co. v.Chatigny-Bitton, (QC CA), [1996] RDJ 14 (CA); 9079-1476 Québec Inc. v.

Apollon, (QC CS),REJB 2001-24626 (Sup Ct); Hyprescon Inc. v. Madison Cheminal Industries Inc., (QC CS), REJB 2001-29388 (SupCt); Recherche et développement André Giguère Inc. v. Cimatec Environmental Engineering Inc., AZ-01036231, BE 2001 (CQ). [36] Having provided these details, we return at this stage to the question of whether any of the grounds in article 3148(3) areapplicable here. [37] First, we must discard the possibility that a fault was committed in Quebec: the defectiveness of a machine under conventionalwarranty carries an obligation to repair it, regardless of whether the manufacturer was at fault.

Therefore, this situation does not applyhere. [38] Next, concerning the first breakdown that took place while Mr. Bousquet was still residing in Ottawa, we must also exclude thepossibility that damage was suffered in Quebec, that an injurious act occurred here, or that one of the obligations arising from thecontract was to be performed here. As for this final possibility, we must at this stage take note of the fact that the computer purchasecontract was finalized online from Ottawa and subsequently performed in Ottawa, as the computer was delivered to the purchaser'sresidence there.

Moreover, at least until the second breakdown took place, all of the other obligations arising from the contract wereperformed in Ottawa, including the obligation to pay the agreed-upon amount assumed by the purchaser and the obligation to honour theconventional warranty assumed by the manufacturer when the computer broke the first time. With regard to the first breakdown, theQuebec authorities cannot claim jurisdiction under any of the three other grounds for jurisdiction listed in article 3148(3). [39] The same cannot be said with regard to the second breakdown, however, which took place after Mr.

Bousquet moved toQuebec. The reason his computer stopped working the second time was not the same as the first; this time it was caused by a problemwith the start button that prevented access to the screen.

Therefore, we must find that a new injurious act thus took place in Quebec, thatthis injurious act caused damage, and that the injurious act and the damage together gave rise to the obligation on the part of themanufacturer to perform an obligation arising from the purchase contract, specifically, the obligation to honour the conventionalwarranty given by the manufacturer, which was still in force at the time of the second breakdown. [40] As noted above, the existence of any one of these situations is in principle sufficient to confer jurisdiction over the actionbrought by Mr.

Bousquet on the Quebec authorities. [41] We then find ourselves, however, in the surprising situation where the Quebec authorities, which clearly did not havejurisdiction when the contract was formed or when the first breakdown took place, acquires jurisdiction because the computer becamedefective a second time after it had been transported onto Quebec soil when its owner moved.

[42] Can the adjudicative jurisdiction of the Quebec courts change over time with regard to the same contract for the purchase of thesame goods, according to the place where the owner of the goods resides when the problem affecting it arises? [43] Three different approaches lead us to answer this question in the affirmative. [44] The first flows from the philosophy underlying

article 3148 CCQ, which seeks to ensure a broad basis for the jurisdiction of theQuebec courts. Accordingly, every time we find ourselves in one of the situations described in subparagraph 3, the right to apply to theQuebec authorities for adjudication of the dispute arising from this situation should, in principle, be recognized. This is indeed what maybe inferred from the guidance given by Gaudet and Ferland in Contrat, sûretés, publicité des droits et droit international privé(Collection de droit 2011-2012, École du Barreau (Cowansville, Que: Yvon Blais, 2011) at 282–283): [translation] The third subparagraph of

article 3148 provides that the Quebec authorities have jurisdiction over a dispute when a fault is committed inQuebec, damage was suffered in Quebec, an injurious act occurred in Quebec, or one of the obligations arising from a contract was to beperformed in Quebec. These are alternative connecting factors, and it is sufficient for one of these elements to have taken place inQuebec. This provision has had the effect of considerably broadening the criteria applied in judicial decisions before the coming intoforce of the Civil Code of Québec. ...

Article 3148(3) CCQ refers to the occurrence of a fault or an "injurious act" in Quebec. This provision contemplates both delictual faultand the failure to perform a contractual or legal obligation. In the case of no-fault liability, it contemplates an injurious act at the originof the damage suffered. ... ...

According to the final connecting factor listed in article 3148 (3) CCQ, the Quebec authorities have jurisdiction if one of the obligationsarising from a contract was to be performed in Quebec, regardless of whether the contract was concluded elsewhere or whether most ofthe obligations were to be performed in another jurisdiction. This provision does not require that the dispute be based on the failure toperform an obligation that was to be performed in Quebec. [Emphasis added.] [45] This is the approach that Dalphond JA of the Court of Appeal, in Interinvest (Bermuda) Limited v.

Herzog, 2009 QCCA 1428,JE 2009-1451 (CA), described as [translation] "generous". In paragraph 40 of that judgment, he wrote: [translation] This

interpretation is of course more liberal than that proposed by the authors who criticize Rosdev, but in my view it seems to be more inline with the generous approach adopted by the courts with regard to the other provisions in

article 3148 CCQ, in particular subparagraph3148(3). In Spar Aerospace Ltd. v. American Mobile Satellite, 2002 SCC 78 , [2002] 4 SCR 205, LeBel J, for the SupremeCourt, writes that "art. 3148 sets out a broad basis for jurisdiction (paras. 57-59)”. [46] Let us now consider the second approach, which emphasizes the court's discretion to temper the potentially unreasonable effectof such a broad application of the jurisdiction being wielded by the Quebec authorities. The wording of article 3148(3) embraces such abroad range of situations that it may be tempting to restrict its scope by adopting a more or less restrictive

interpretation. However, asProfessors Goldstein and Groffier point out in Droit international privé, Tome 1 (Cowansville, Que: Yvon Blais, 1998) at 358–359, thisscreening should not take place when jurisdiction is assigned in principle but at the subsequent stage, when the forum non conveniensdoctrine is taken into consideration. [translation] In any event, in private international law, it is now sufficient for the performance of one of the obligations arising from a contract to be inQuebec to give jurisdiction to a Quebec court.

The place of the formation of the contract is no longer very important, at least when itcomes to establishing the international jurisdiction of Quebec authorities. ... ... ... therefore, the effect of the new provision is that Quebec authorities have jurisdiction as soon as a single obligation arising from thecontract is to be performed in Quebec. ... Despite the enthusiasm that such a provision might inspire, it is clear that the jurisdiction that results could be entirely outrageous.

Thus,to ground jurisdiction, it is sufficient that one of the ancillary obligations of the contract, of minimal value, must be performed in Quebec.The evidence is clear that Quebec courts would refuse to hand over jurisdiction to a foreign court that would accept it because article3148(4) requires that "the obligations arising from a contract were to be performed in that country". Therefore, this is also a case wherethe doctrine of forum non conveniens would be relevant. [Emphasis added.] [47] Finally, the third approach is based on case law. In Hoteles Decameron Jamaica Ltd v.

D'Amours, 2007 QCCA 418, the Courtof Appeal of Quebec adopted and extended the broad

interpretation of

article 3148 CCQ given by LeBel J of the Supreme Court ofCanada in Spar Aeropace Limited v. American Mobile Satellite Corp. 2002 SCC 78 , [2002] 4 SCR 205. It found that theconnecting factor should not be restricted [translation] "to the place of the first manifestation of damage" but should also extend to theplace the damage moves to. This suggests that, if this is the

interpretation to be preferred with regard to the criterion of damage, it is alsothe one that should prevail with regard to the criterion of "injurious act" and to that of the place where "one of the obligations arisingfrom the contract is to be performed". Thus, the situations identified in article 3148(3) become mobile in time and space. At least, this iswhat emerges from paragraphs 22, 24 and 25 of that judgment: [translation]

Finally, Spar Areospace gives a broad

interpretation to the notion of damage. ... Indeed, at first sight, it may appear attractive to assign jurisdiction to the court at the place of the first manifestation of bodily damage since, by definition, it cannot be dissociated from the victim and therefore moves with him or her. Upon reflection, however, I find that this would be an error of law because doing so would neutralize the individual nature of this connecting factor .

Indeed, as I have explained, the Code has defined damage as well as fault, the injurious act, and the place of the performance of an obligation as not only relevant factors but also distinct connecting ones . The Supreme Court teaches that each of these factors is sufficient to recognize the international jurisdiction of the Quebec courts because they satisfy all of the general principles of private international law. [Emphasis added.] [ 48 ] And the Court continues, at paragraphs 27–29: [ translation ] That said, I am aware that, as in all other things, abuses are possible .

We can imagine all sorts of circumstances where plaintiffs may seek the forum that better suits them, without regard to the forum that has the closest connection to the case . This is because bodily damage, by its very nature, moves with the person who suffers it. In actual fact, however, the real issue involves seeking out the "real and substantial connection" between the dispute and the forum.

Indeed, although paragraph 3148(3) must be applied a priori , it does not necessarily mean that the Quebec courts should not decline jurisdiction if the specific circumstances of a case mean that another forum would be "in a better position to decide the matter". In such a case, judges exercise their discretionary power and recognize that another jurisdiction is the " forum conveniens ", within the meaning of

article 3135 CCQ. In my understanding, this is the guidance provided by the Supreme Court in Spar Aerospace. In short, because the provisions of the Code are consistent with the general principles of private international law and because, moreover, '"art. 3148 sets out a broad basis for jurisdiction", when Quebec judges are asked to rule on international jurisdiction in the context of an extracontractual liability action for bodily damage, they must first determine whether the plaintiff has established one of the connecting factors in article 3148(3) CCQ.

Second, even if the Quebec court has jurisdiction, a foreign court may be preferred if the defendant demonstrates that the judge ought to exercise discretion under

article 3135 CCQ. [Emphasis added.] [ 49 ] Thus, the suggested

interpretation appears to be consistent with the teachings of the Court of Appeal, which does not require that the facts grounding the jurisdiction be fixed in time as long as they occurred before the action was brought, as Rayle JA reminds us in Rees v. Convergia , 2005 QCCA 353 , JE 2005-738 (CA) at paragraph 49 : [ translation ] It is an entirely different story with respect to subparagraphs 3, 4 and 5, and the final paragraph of

article 3148 CCQ .

In those cases, the grounds for jurisdiction must have existed before the action was instituted. [ 50 ] From the above considerations, it is clear that, since this case concerns the performance of a conventional warranty given by a computer manufacturer following a breakdown that occurred in Quebec when the owner of the goods had both domicile and residence here, the injurious act occurred in Quebec, the damage was suffered here, and the obligation to honour the conventional warranty was, in the case of the second breakdown, to be performed here. [ 51 ] Although none of these connecting factors existed when the computer was purchased or when it broke down the first time, each factor was present when the second breakdown occurred.

Therefore, Quebec courts have jurisdiction to hear the case, at least in principle. [ 52 ] In any event, even if the answer to this question had been negative,

article 3149 CCQ would have led to the same conclusion. [ 53 ] Indeed, this provision states the following: 3149. A Québec authority also has jurisdiction to hear an action involving a consumer contract ... if the consumer ... has his domicile or residence in Québec; the waiver of such jurisdiction by the consumer ... may not be set up against him . [Emphasis added.] [ 54 ] As noted above, domestic law must be relied on when carrying out the legal characterization required for the purposes of applying this provision (article 3078 CCQ ). Thus, the contract invoked by Mr.

Bousquet is a consumer contract within the meaning of both the Civil Code of Québec and the Consumer Protection Ac t. [ 55 ] It is interesting to note that the legislature drafted

article 3149 to favour a broad and liberal

interpretation that is consistent with the legislative objective sought. By stating that the provision applies to any "action involving a consumer contract" without regard to the place this contract was formed, it contemplates not only the failure to perform the primary obligations in the initial consumer contract but also all of those ancillary obligations relative to the goods and services that were the object of the consumer contract. The obligation to honour the conventional warranty for its entire duration is one of those ancillary obligations. [ 56 ] That said, in the Commentaires du ministre de la Justice , supra , the Minister specifies that his intention is to extend the reach of

article 3148. He explains as follows, at pages 2010–2011. [ translation ] This provision, which is new law, ... assigns jurisdiction over consumer or employment contracts to the Quebec authorities if the consumer or worker has domicile or residence in Quebec; this jurisdiction is in addition to that based on the criteria in

article 3148 .

[Emphasis added.] [57] In the La réforme du Code civil, Tome 3 (Quebec: Les Presses de l'Université Laval, 1993) at page 756, Professor Glenncompletes this thought: [translation] In the same protective spirit that inspired articles 3117 and 3118 (concerning the applicable law),

article 3149 creates a specific forum tohear actions involving consumer or employment contracts. Thus, such actions may be brought before the Quebec authorities if theconsumer or worker is domiciled or residing in Quebec. The provision, which is new law, is advantageous to the consumer or worker asplaintiff ... .

This specific forum is in addition to the forums of ordinary law (article 3148). [Emphasis added.] [58] Case law has also found that the legislature does not require that the consumer contract be signed in Quebec: Chatigny-Bitton v.Margo Movers International Inc., (QC CS), REJB 1995-28860 (Sup Ct); appeal dismissed by the Court of Appeal, (QC CA), [1996] RDJ 14 (CA). [59] It has also been decided that this provision does not grant exclusive jurisdiction to the Quebec courts, but that it creates anexceptional forum for the benefit of consumers: LVH Corp. (Las Vegas Hilton) v.

Lalonde, (QC CS), REJB 2003-39615 (Sup Ct). [60] From the preceding, it is clear that, even if the Quebec courts did not have jurisdiction to hear the dispute between Mr.Bousquet and Acer under the general rules in

article 3148 CCQ, they would nevertheless be competent under the exceptional schemecreated for the benefit of consumers under

article 3149. Once again, the obligation to honour the conventional warranty in the consumercontract arose when the machine broke down in Quebec when the consumer had both domicile and residence in Quebec. [61] Since the Quebec authorities have jurisdiction in principle to hear the dispute arising from this obligation to honour thewarranty, we must now consider whether it is desirable that they do so. [62] This question raises the issue of whether it is appropriate to decline jurisdiction on the basis of forum non conveniens. 3.2 Application of the doctrine of forum non conveniens [63] This doctrine is codified in

article 3135 CCQ. Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, declinejurisdiction if it considers that the authorities of another country are in a better position to decide. [Emphasis added] [64] In the Commentaires, supra,, the Minister of Justice explained the philosophy underlying this rule in the following terms onpage 1999: [translation] Indeed, forum non conveniens permits a court to decline jurisdiction when it deems that the interests of justice would be better served ifthe matter before it were heard by another court. ... The

article is intended to facilitate the administration of justice by taking into consideration the properly understood interest of theparties. Its application, however, is limited to exceptional cases. [Emphasis added.] [65] In La réforme du Code civil, supra, Professor Glenn points out, however, that, even if such a measure is essentiallydiscretionary, it may be contemplated only when several factors weigh in its favour – factors that have been defined in the case law, aswe shall see below. He states the following, at pages 744–745: [translation] ...

Despite its discretionary nature, this is a measure of international judicial cooperation ... The notion of forum non conveniens is nevertheless applied exceptionally and only upon application by a party (article 3135). Anunconscionable or vexatious choice of forum by the plaintiff will be a decisive factor in its exercise, but the court will also consider arange of other factors to determine whether the court of another country is in a better position to decide. [Emphasis added.] [66] Moreover, as the Court of Appeal recently noted in Anvil Mining Ltd. v.

Association canadienne contre l'impunité, 2012 QCCA117 at paragraph 99, the burden of proving that Quebec is not a forum conveniens rests on the party who asks that jurisdiction bedeclined – Acer in this case. [67] In Contrats, sûretés, publicité des droits et droit international privé, supra, Gaudet and Ferland also add that, while [translation]"it is a discretionary decision", the burden of proof on the party asking a Quebec court to decline jurisdiction is heavy. They state, at 286: [translation] As the wording of

article 3135 CCQ indicates, a court may decline to hear a dispute upon application of the doctrine of forum nonconveniens only in exceptional cases. It is not sufficient to demonstrate that the dispute has few connections to Quebec or that holding the

trial would be impractical or cause damage to a party. It must be established by means of clear evidence that the authorities of anothercountry are in a better position to hear the case and that it would be clearly more appropriate for them to hear it. Obviously, this meansthat the authorities of the other country must be able to hear the case according to their own rules of international jurisdiction.

Theremust also be real and substantial connections between the case and the other country, so that its authorities clearly represent the mostappropriate forum for the dispute. [Emphasis added.] [68] In light of these teachings, four comments are in order. [69] First, we must not lose sight of the fact that, while this dispute arose due to the breakdown of a computer under conventionalwarranty, its true purpose is to determine the scope of

section 49 of the Consumer Protection Act when applying this warranty.Therefore, the logic governing the dispute is distinct to Quebec in that, if the Quebec Consumer Protection Act does not apply, the issueis moot unless, of course, analogous provisions exist in the Ontario consumer protection statute, as we shall see below. [70] This first comment gives rise to a second: while according to the above argument, the authorities of another country might be ina better position to hear the case than the Quebec authorities, it might even be preferable that it be heard by the authorities of anothercountry, the record as it now stands, however, does not justify finding such a clear preference. [71] This leads us to our third remark: no evidence in the record justifies the conclusion that another country – in all likelihoodOntario – is able to hear the dispute pursuant to its own rules of international jurisdiction or that, at the time of the second breakdown,real and substantial connections between this dispute and the other country existed. [72] Finally, and this is our fourth remark, the wording of

article 3149 in fine, referred to above, expresses the clear intention of theQuebec legislature not to deprive Quebec consumers of their right to bring their disputes before the Quebec courts. Indeed, by explicitlystating that "the waiver of such jurisdiction by the consumer or worker may not be set up against him", the legislature in a wayguarantees access to the courts of Quebec once the grounds listed in the provision are met, regardless of any prior position the consumermay have taken in this regard.

In such a context, it is difficult to see how the Court could exercise its discretion to deprive the consumerof a forum to which the legislature intended to ensure access. [73] These considerations should be sufficient to urge the Court to refrain from exercising its discretion to apply the forum nonconveniens exception, since the record as it stands does not justify a finding that the Ontario judicial forum would be in a better positionto hear the dispute, that it would be far preferable to refer it to such a forum to decide the matter, or even that the other forum couldvalidly accept jurisdiction of the dispute. [74] Nevertheless, the Court finds it appropriate to take the analysis a little further by applying the factors developed in the case lawto Acer's request that jurisdiction be declined. [75] These factors, which the courts have reiterated on numerous occasions, were set out by the Court of Appeal of Quebec inOppenheim Forfait GmbH v.

Lexus Maritime Inc., (QC CA), REJB 1998-07102 (CA) and specifically approved bythe Supreme Court in Spar Aerospace, supra at paragraph 45. Pidgeon JA, as he then was, identified them at pages 7 and 8, indicatingthe manner in which they should be assessed and weighed when deciding whether there is an exceptional situation that warrants theapplication of the doctrine of forum non conveniens: [translation] The judge hearing a declinatory exception must consider several factors when determining whether the situation is exceptional. In recentyears, the courts have more clearly defined the meaning and scope of

article 3135 CCQ. The criteria to be considered include, inter alia:

(1) The parties' residence, that of witnesses and experts; (2) the location of the material evidence; (3) the place where the contract was negotiated and executed; (4) the existence of proceedings pending between the parties in another jurisdiction; (5) the location of Defendant's assets; (6) the applicable law; (7) advantages conferred upon Plaintiff by its choice of forum, if any; (8) the interest of justice; (9) the interest of the parties; (10) the need to have the judgment recognized in another jurisdiction. None of these criteria is individually determinant.

Rather, they should be assessed as a whole, bearing in mind that their application mustclearly indicate a single forum. Therefore, if no clear impression emerges that a foreign forum would be better suited to hear the case, thecourt should refuse to decline jurisdiction, particularly if the connecting factors are questionable. [Emphasis added.] [76] How does this apply to the case before us? Let us consider. [77] Thus, the first factor is the parties' residence and that of the witnesses.

The idea behind this criterion is that the connection ofthe parties and witnesses to a jurisdiction may help create an exceptional situation likely to justify the judge's decision to decline

jurisdiction. The plaintiff resides in Quebec, the defendant Acer Canada has its place of business in Ontario, and the defendant Acer America has its head office in California. As for the witnesses, the only one announced by the co-defendants is the only person in Canada who would be able to testify on the conventional warranties given by Acer and on the corporate policies relating to their application. This witness resides in Mississauga, Ontario.

Therefore, geographically speaking, it makes no difference to him whether he is required to travel to Ottawa, the only other possible forum, or to Gatineau, which is two kilometres away, just across the Outaouais River. In the circumstances, this factor does not weigh in favour of the application of the forum non conveniens doctrine. In fact, its effect is rather neutral. [ 78 ] The second factor emphasizes the location of the evidence. In this case, the evidence is primarily documentary; moreover, part of it is recorded in computer format: the purchase format, the delivery slip, the bill of lading, and so on.

As for the testimonial evidence, it consists first of the testimony of the plaintiff, now residing in Quebec (who in any event recorded his telephone conversation with the Acer customer service representative) and the person in charge of warranty compliance who, as noted above, lives in Mississauga and would have to travel to the Ottawa-Gatineau region regardless of the outcome of this motion before the Court.

In this context, this factor is no more significant than the preceding one. [ 79 ] The third factor requires taking into account the place the contract giving rise to the judicial demand was formed and performed. While the contract to purchase the computer was finalized in Ottawa, where the consumer was residing when the contract was formed electronically online, the application of the conventional warranty came into play in Gatineau when the second breakdown took place: therefore, the manufacturer's obligation to honour the conventional warranty was born in Quebec.

The manufacturer was therefore bound to perform this contractual clause in Quebec. This factor does not provide any additional justification for the Court to decline jurisdiction. [ 80 ] The fourth and fifth factors are not applicable in this case. First, no other action relating to this case has been brought before any other jurisdiction. Second, the location of the co-defendants' property has no effect on the outcome of this dispute.

Even if it did, we would in any event have to consider that Acer probably has property in Quebec, if only in the form of computer inventory located in the territory before title is acquired by someone else. [ 81 ] We now come to a consideration of the sixth factor: the law applicable to the dispute. As we shall see below, it is the Ontario law that applies here. While this factor could urge a Quebec court to decline jurisdiction, it does not require it. It is certainly an important factor, but it is not determinant.

Other factors, such as access to justice and the complexity of the legal issue, may temper its effect. Access to justice denotes, among other things, the physical accessibility of the Court, familiarity with procedure, and costs and delays, both future and incurred. Complexity of the legal issue refers to the degree of difficulty involved in importing foreign legal rules into a dispute instituted in Quebec. In this case, the Court is already seized of the matter, and both Mr. Bousquet and Acer have incurred significant costs and delays.

Moreover, the dispute raises no complex legal issues; the debate is limited to whether a provision analogous to

section 49 of the Quebec Consumer Protection Act , which permits punitive damages in the event of a violation, exists in Ontario legislation applicable in consumer protection cases. If equivalent provisions exist in Ontario law, evidence thereof could be adduced relatively easily, without significant delay, and at a reasonable cost. In such circumstances, this factor remains but one of many and its relative weight must therefore be assessed accordingly. [ 82 ] The seventh factor requires that the advantage conferred on the party in his choice of forum must also be considered.

This factor also weighs in favour of accepting jurisdiction, if only because the choice of the Quebec forum allows him to benefit from

section 49 of the Consumer Protection Act , upon which this dispute is based. [ 83 ] The eighth factor calls into play the interest of justice. Nothing in the record as it stands justifies the conclusion that the ends of justice would be better served if the Quebec authorities declined jurisdiction in favour of the Ontario authorities. In actual fact, the opposite is true. Insofar as Mr. Bousquet seeks an acknowledgment that

section 49 CPA applies to his situation, and insofar as he alleges that Acer and the other multinational companies that sell products under conventional warranty in Quebec systematically ignore it, the interest of justice in fact requires that the matter be decided by the Quebec authorities. That being said, it should be pointed out that Mr. Bousquet's allegation in this respect is categorically denied by Acer, who maintains that a stipulation to the contrary is accepted by purchasers when they activate their computers.

As this constitutes the substance of the dispute, however, its merits should not be discussed at this stage of proceedings. Rather, it should be considered solely with the purpose of identifying the judicial forum best suited to adequately serve the interest of justice. [ 84 ] The ninth factor highlights the interest of both parties. In this case, the interest of the parties becomes the first consideration if Quebec law is identified as the applicable law.

Acer's interest in having the Ontario courts assume jurisdiction is intimately related to the interest it has in seeing the dispute subjected to Ontario law: Ontario courts are best suited to apply Ontario law. The opposite is also true: Mr. Bousquet has an interest in the Quebec courts accepting jurisdiction if Quebec law is applicable in this dispute because, if Ontario law were applicable, he would be required to incur expert legal fees to adduce evidence of Ontario law before a Quebec court.

Ultimately, the above considerations do not urge the Court to decline jurisdiction any more than the other factors do. [ 85 ] We now come to a consideration of the tenth and final factor: the eventual requirement that the judgment be recognized in another jurisdiction. This criterion weighs in favour of the argument put forward by Acer: it is true that any judgment rendered against it in Quebec would have to be homologated in Ontario to become enforceable there.

That said, given the relatively modest financial stakes in this case, the obvious solvency of Acer, and the company's interest in maintaining a positive corporate image in the eyes of its numerous Quebec customers in the event of an unfavourable judgment, the Court finds that it is nothing more than speculation to argue that Acer would refuse to comply willingly with a final judgment against it and thus require its creditor to force execution.

Indeed, the possibility is too remote and uncertain to make us turn away from the direction indicated by all of the other factors. [ 86 ] This direction is the following: Upon carrying out an analysis of all the criteria, bearing in mind [ translation ] "that the result of their application must clearly indicate a single forum", [ translation ] "there is no clear impression indicating a single foreign forum" (Oppenheim, supra at page 8). Consequently, Acer has not discharged its burden of proof: this is not an exceptional situation and, therefore, it is not appropriate to decline jurisdiction.

[ 87 ] This Court is therefore properly and validly seized of the action instituted by Mr. Bousquet. Now we need merely determine whether the law of Quebec or the law of Ontario is applicable. 3.3. The Applicable Law [ 88 ] The Court's conclusion regarding the applicable law has already been stated: the dispute should be decided in accordance with the Quebec Consumer Protection Act.

I will explain why. 3.3.1 Are the schemes governing the application of warranties in sections 34 to 54 CPA and the awarding of punitive or exemplary damages of immediate application ? [ 89 ] Before more thoroughly considering the conflict of law rules enshrined in articles 3038 CCQ and following, we must first determine whether

article 3076 helps us arrive at satisfactory answer to the above question. This provision reads as follows: The rules contained in this Book apply subject to those rules of law in force in Québec which are applicable by reason of their particular object. » [ 90 ] In substance, this

article provides that, in certain subject matters relating to social organization or public order, Quebec laws apply even when the matter submitted contains foreign elements. That is what commentators have referred to as a [ translation ] "rule of immediate application" or a [ translation ] "rule of necessary application". [ 91 ] In this specific context, the legislature chose to impose the application of Quebec law without it being necessary, or even useful, to resort to conflict of law rules.

In the Commentaires , supra , the Minister of Justice justifies this position as follows, at pages 1950– 1951: [ translation ] This provision, which is new law, is inspired by the 1987 Swiss Loi fédérale sur le droit international privé (federal act on private international law), which legislatively enshrines the theory of laws of immediate application. These are provisions of our domestic law which, considering their particular object, directly and imperatively apply, regardless of the conflict rule , even when the legal situation contains foreign elements.

Unless the legislator has clearly stated it, it is not sufficient that a rule be imperative for it to be considered of immediate application; its object must also confer upon it a very special significance to the organization of the state .

The application of these provisions safeguards the political cohesion of Quebec's domestic legal order. [Emphasis added.] [ 92 ] The question was quickly raised as to whether the Consumer Protection Act was included in the body of rules that transcend ordinary conflict of law rules and should therefore be exempt from the application of the rules intended to govern them. [ 93 ] As early as 1993, even before the new Civil Code came into force and the case law began to take an interest in the new provision, Professor Glenn entertained doubts on this subject.

He explained them as follows, at pages 679–680 of La réforme du Code civil , supra : [ translation ] In other situations, the existence of a law of immediate application is more debatable . These are cases where the law would lose its effectiveness in

part if it were not applied in an international situation, but where it cannot be said that this weakening of its authority would be total. In consumer protection matters, for example, it may be argued that the objective of the Consumer Protection Act is the protection of consumers domiciled in Quebec and that it should therefore apply to consumer contracts formed by persons in a foreign country who are domiciled here.

Even if it were not applied in such a situation, however, the law would preserve a great deal of its effect because it applies entirely to consumer contracts formed in Quebec by persons having domicile in Quebec. Does the particular objective of such a law command that it be applied extra-territorially? The answer might be found in the legislative history, but such documentation is frequently silent on this question.

Failing a more precise definition of its particular object, case law in Quebec currently tends to reject the imperative application of the Consumer Protection Act in situations containing a foreign element. [Emphasis added.] [ 94 ] Since then, this uncertainty has been expressed by other commentators.

For example, Contrats, sûretés, publicité des droits et droit international privé , supra at pages 255–256, lawyers Gaudet and Ferland further qualify this point of view: [ translation ] Rules of immediate application are fundamental rules of the forum that, apply to an international situation even when they are not designated by a rule of conflict because of their particular objective (article 3076 CCQ ). Unlike substantive rules, these rules do not in themselves contemplate an international situation.

Rather, they are substantive rules of domestic law which, because of the objective sought by the legislature, should be applied despite the existence of foreign elements. In other words, these rules are to be applied by judges whether the situations before them are purely domestic or international . The authors consider that statutes involving truly vital and essential interests of the State with regard to its political, social, or economic organization (so-called "policy laws") are generally of immediate application.

Thus, the Competition Act and the Youth Protection Act have been considered rules of immediate application because of their objectives. According to some, the rules relating to health care consent in the Civil Code of Québec (

article 14 and following) are also of immediate application. On the other hand, case law has held – although not without hesitation – that the Consumer Protection Act is not sufficiently crucial to be characterized as a law of immediate application . [Emphasis added.]

[95] It is particularly interesting to note that the opinion expressed by Mtre Gaudet and Mtre Ferland is based on a single judgment,cited in footnote 22: St-Pierre v. Canadian Acceptance Corp., EYB 1982-139838 (CA), JE 82-654 (CA).

It is a short judgment of theCourt of Appeal of Quebec and, although rendered before the 1994 Civil Code reform, it is, as we shall see, still considered a leadingcase on the question. [96] In the same footnote, the authors also refer to a judgment rendered three years earlier by the Supreme Court of Canada in R. v.Thomas Equipment Ltd., (SCC), [1979] 2 SCR 529, where the Court had opted instead for the rule of immediateapplication, applying an Alberta statute aiming to protect purchasers of agricultural machinery from Alberta instead of the NewBrunswick statute designated as the applicable law in the contract between the parties. [97] In Précis de droit international privé québecois, 4th ed, published before the reform (Cowansville, Que: Yvon Blais, 1990),Professor Ethel Groffier analyzed this judgment as follows, at page 4: [translation] An agricultural machines merchant from Alberta purchased machines from a manufacturer in New Brunswick.

The manufacturer grantedthe merchant exclusivity in a part of Alberta. After some time, the Alberta merchant informed the manufacturer that he wished toterminate the franchise contract and asked him to buy back his unsold stock, pursuant to an Alberta statute. This obligation does not existin New Brunswick, and the law of New Brunswick had been expressly chosen by the parties to govern their contract.

The Supreme Court of Canada applied Alberta law because, according to the majority of the Court, this was not a simple contract of saleof merchandise between a merchant from New Brunswick and a purchaser from Alberta; it was also the promotion of the merchandise ofthe merchant in Alberta and the establishment of a clientele for the merchant's products in that province.

Consequently, the merchant'sliability arose from his conduct in Alberta, where he himself chose to be subject to the provisions of the Farm Implement Act at issue.The Supreme Court of Canada therefore set aside the applicable law as designated in the contract under the usual rule of privateinternational law. [Emphasis added.] [98] A certain analogy can be drawn between the facts and reasoning underlying Thomas Equipment Ltd. and the case before us. [99] Let us first point out that, under its conventional warranty, Acer and its client choose in principle to subject any dispute thatcould arise therefrom to the laws of South Dakota, unless the client is Canadian, in which case Acer agrees to subject itself to Canadianconsumer protection laws.

At least, this is what emerges from clauses 7 and 10 of the warranty: 7. …This Agreement and any sales there under shall be governed by the laws of the State of South Dakota, without regard to conflict oflaws rules. ... 10.

For Residents of Canada: This Agreement is subject to the applicable provisions of Canadian consumer protection laws thatcannot be derogated from by private agreement. [Emphasis added.] [100] Without identifying which of the Canadian consumer protection laws it would prefer to be subject to, Acer recognizes theprimacy of laws that cannot be derogated from by private agreement and agrees to be subject to them. And indeed,

section 261 of theQuebec Consumer Protection Act provides that "No person may derogate from this Act by private agreement". This observation certainlydoes not bar the application of the rule of immediate application. [101] It may also be argued that the contract giving rise to this dispute is not [translation] "a simple contract for the sale" of a computerbut, because the goods are offered for sale online to anyone – including residents of Quebec – it also arises from Acer's aim to advertiseits computers in Quebec and establish a clientele for its products here. [102] Finally, it would be wrong to limit this debate to the question – ultimately a secondary one – of the actual scope of

section 49CPA with regard to the obligation of a merchant or a manufacturer to assume "the real cost of transportation or shipping incurred inrespect of the performance of a conventional warranty, unless otherwise stipulated in the writing evidencing the warranty". Becausesection 49 is but one of twenty-two provisions creating a particular legal scheme of public order applicable to warranties in contracts ofsale, leasing, and services subject to the Consumer Protection Act. [103] Therefore, the fundamental question raised by the action brought by Mr.

Bousquet is actually the following: when a consumerresides in Quebec and goods under warranty break down here, should the competent Quebec court find that the legal and public orderscheme governing the application of warranties set out in sections 34 to 54 CPA should be applied under

article 3076 CCQ, regardless ofthe conflict of law rules? Or rather, should the court refer to these rules and to

article 3117 in particular or, in the alternative, to article3114, to determine which consumer protection provisions – those from Quebec or those from a foreign country – apply? [104] According to the approach set out by the Supreme Court in Thomas Equipment Ltd., supra, the first approach may beconsidered. [105] The problem can also be considered from another angle.

Indeed, it should be recognized that the concept of "laws involvingtruly vital and essential interests of the State with regard to its political, social, or economic organization" that are of immediate ornecessary application may have a broader scope now than thirty years ago due to technological developments and the era of e-commerce.Thirty years ago, few consumers were parties to international contracts, or at least to contracts containing foreign elements. [106] In the 21st century, however, the phenomenon is not only common, indeed, it is widespread among the entire population andeven ubiquitous among younger generations.

This state of affairs raises new challenges because, as Dalphond JA states in Interinvest(Bermuda) Limited, supra, [translation] "[i]n this era of globalization and instant communication by electronic or other means, it isincreasingly difficult to identify the place a decision is made" (at para 38).

[ 107 ] In this globalized world, where goods acquired in or transported to Quebec may break down and require repairs in Quebec whether or not they are still under warranty, the outsourcing of customer service can cause real problems. [ 108 ] In this context, a person from Quebec who purchases goods online while in Quebec may, as we shall see, rely on

article 3117 CCQ to gain access to a Quebec judicial forum. The situation is more problematic, however, when a person from Quebec purchases goods under conventional warranty from a multinational corporation while travelling abroad and brings it back to Quebec while the warranty is still in effect. The same can be said when a person originally from Quebec moves to another jurisdiction for work or school and purchases goods there, bringing them back to Quebec while they are still under warranty.

In such circumstances, the Quebec consumer could be deprived of the protection that the law of his or her place of residence is supposed to provide. [ 109 ] Indeed, this case is a perfect example: arrangements were made over the telephone from Quebec with a customer service agent in a call centre that could have been anywhere on the planet, and the computer was then sent from the new residence in Quebec to California for repairs. [ 110 ] In that context, it is not unreasonable to believe that the case law could be influenced by new issues relating to access to justice and potential denials of justice arising from this dynamic and that the debate should be recentred on the philosophy underlying

article 3076 CCQ , namely, the intention not to subject Quebec consumers in a position of weakness to the vagaries of conflict of law rules when applying warranties granted by foreign merchants or manufacturers or under the Act.

Indeed, truth be told, the traditional application of conflict of law rules may in some cases render any remedy illusory: the financial stakes in most consumer cases simply do not justify resorting to a foreign forum. [ 111 ] Indeed, it is that very need to protect weaker parties that justifies applying the rule of immediate application to the Youth Protection Act and to the rules governing health care consent. [ 112 ] What is more, in C ommentaires sur le Code civil du Québec (DCQ), 2011 (EYB 2011 DCQ 1160), Professor Goldstein proposes the following approach when [ translation ] "determining whether, implicitly , because of an objective of particular importance to the social and economic organization of Quebec, a domestic law provision should apply to achieve this objective, despite a conflict of law rule designating a foreign law".

Recalling that [ translation ] "it is necessary to restrict one's domain and to resort [only] exceptionally" to the rule of immediate application, the author, at paragraph 3076 560, proposes the following analytical framework: [ translation ] More recently, however, the Court of Appeal, thus favouring foreseeability, applied the doctrine while expressly requiring the verification that there is an objective of [ translation ] "vital interest" to Quebec, while finding that this is not the case with respect to Quebec provisions governing family patrimony.

Since the organization of the state is at issue, it may be found that some signs will reflect the importance of the provisions in the legal order concerned. Usually, an interventionist legislative policy will suggest such a characterization, for example, to protect a certain class of persons. Thus, the creation of an administrative body responsible for verifying compliance or attributing sanctions beyond those traditional in civil law ( fines, punitive damages , etc.) should constitute evidence of the status of the legislation as overriding .

Legislation respecting residential leases is one example: the existence of the Régie du logement (Quebec rental board) and the possibility of awarding punitive damages indicate the government's interest in these provisions. ... [Emphasis added.] [ 113 ] It is particularly interesting to note that the Consumer Protection Act fits this profile. The result of a resolutely interventionist legislative policy, it imposes rules that cannot be derogated from by private agreement (section 261 CPA ) to ensure the protection of consumers, even despite themselves if necessary.

The Office de la protection du consommateur (consumer protection bureau) is also created (section 291 CPA ), and "[i]t is the duty of the Office to protect consumers" (section 292 CPA ). Moreover, it provides for a number of sanctions that exceed the traditional boundaries of private law, such as the awarding of punitive damages (section 272 CPA ) and the imposition of a fine (sections 277(

a) and 279 CPA ). Finally, all of these measures that go beyond private law affect the specific scheme governing the application of warranties in sections 34 to 54 of the Act.

In such a context, it can be argued that the possibility of designating the warranty application scheme under the Consumer Protection Act may indicate that these provisions are among those that, to reiterate the commentary of the Minister of Justice, supra , [ translation ] "[safeguard] the political cohesion of Quebec's domestic legal order" since their objective confers on them "a very special significance in the organization of the state". [ 114 ] That said, it must also be recognized that the concerns outlined above are not universally shared.

Indeed, this type of position does not rally the commentators, who consider this issue to be closed. [ 115 ] For example, Professor Goldstein does not support the argument whereby the Consumer Protection Act could fall within the ambit of

article 3076 CCQ . His reservations are based primarily on the fact that the legislature enacted a single conflict of law rule to govern consumer contracts, which in his view expresses the legislative intent that this issue not be subject to

article 3076 . He states the following, at paragraph 3076 565: [translation] The very fact that consumer protection is included within the conflict of law rules in

article 3117 CCQ ... indicates the Codifier's intent to break with a certain line of case law on consumer contracts and not to favour a broad

interpretation of the scope of

article 3076 CCQ . [ 116 ] Professor Goldstein thus reiterates the position he had adopted in the book he co-wrote with Professor Groffier in 2003. In Droit international privé , Vol II (Cowansville, Que: Yvon Blais, 2003) at 618–619, the authors write that even before the Civil Code reform, the Consumer Protection Act could not be characterized as a law of immediate application: [ translation ] In any event, a rule of necessary application implies at least the existence of a very strong functional connection to Quebec. In a judgment

that has unfortunately not been published in the official reporters ( St-Pierre v. Canadian Acceptance Corp ., supra ), the Court of Appeal changed directions, refusing to apply the rule of immediate application to the Consumer Protection Act . It criticized this position, noting that Quebec law could not govern a contract entered into outside Quebec. In light of the wording of

article 8 CCLC , this was tantamount to stating that the international scope of the Consumer Protection Act should be determined by the conflict of law rule governing contracts. It is this combination that was supposed to give rise, through

article 3117 CCQ , to a new rule of private international law specific to consumer contracts. [ 117 ] Subsequently, at pages 634–635, the authors added the following with regard to cases such as the one before us, where the consumer directly sues the manufacturer instead of the merchant with whom he contracts: [ translation ] ... Because of the existence of his contract with the immediate merchant, the consumer may or may not be recognized as having a direct right of action against the manufacturer designated under

article 3117 CCQ . It is important to ensure that the same law governs the rights of consumers/purchasers arising from contractual and legal warranties with merchants and manufacturers. This is a “legislative package" that would not survive dépeçage . Moreover, in principle, in the civil law, according to the theories enjoying the most support (that of the transfer of ancillary matters, among others), the direct action against the manufacturer is fundamentally connected to the right of the purchaser as against the immediate merchant.

Yet, in the Consumer Protection Act, for the purchaser-consumer, the right remains relatively independent because in this case it does not rely on the existence of a contractual remedy against the merchant (sections 53 and 54 CPA ). Should the solution offered to this private international law issue reflect that adopted in the Consumer Protection Act ? Should these Quebec provisions creating this direct action for the benefit of the consumer (sections 53 and 54 CPA ) be considered rules of necessary application, and should objective dépeçage be accepted ?

At first glance, and considering the matter from a consumer protection perspective, we may lean toward answering this question affirmatively because it is difficult to see how a foreign law could be more favourable to the consumer on this point. Yet,

section 53, for example, has its limitations. Thus, the possibility that the consumer could find a latent defect by an ordinary examination eliminates this type of direct action. A foreign contract statute might not be bound by the same limitations. Therefore, it is not always indispensable for a Quebec statute to be imposed as a law of necessary application. The consumer will not necessarily be better protected by it:

article 3117 CCQ reflects this very approach, and the conflict of law method must be respected. [Emphasis added.] [ 118 ] As a result of the preceding, according to Goldstein and Groffier, the

chapter of the Consumer Protection Act creating a specific warranty scheme (sections 34–54) cannot be characterized as containing rules of immediate application either by considering the Act as a whole or by proceeding by way of dépeçage that would take only this

chapter into account. [ 119 ] This opinion is also shared by Professors L'Heureux and Lacourcière in their book entitled Droit de la consommation , 6th ed (Cowansville, Que: Yvon Blais, 2011) at 24–25: [ translation ] Following a decision of the Superior Court, the question of whether this statute is of immediate application was raised. This characteristic can be expressed as follows: in the event of a private international law problem, because the consumer resides in Quebec, the court must apply Quebec law without applying the usual procedure to situate the contract according to the conflict of law rules.

The Court of Appeal rejected this characterization by deciding that the Quebec statute applies only to contracts made in Quebec or presumed to have been made in Quebec in accordance with the rules of private international law.

Article 3117 CCQ confirms this

interpretation. [Emphasis added.] [ 120 ] Professor Emanuelli, however, seems to adopt a more nuanced position in Droit international privé québecois , 3d ed (Montreal: Wilson & Lafleur, 2011): [ translation ] In principle, substantive rules for domestic application, which constitute the Quebec legal system, apply in international situations only if Quebec law is the applicable law according to a rule of conflict. They may also apply, however, without the application of a conflict rule if they constitute standards of necessary application.

Standards of necessary application can essentially be defined as imperative rules enacted by the legislature to regulate the activities of individuals domestically ( Consumer Protection Act). That said, to realize the objectives of the rules, they must also apply in certain international situations even if they are no longer designated by a conflict rule. In such cases, they have the capacity to become standards of necessary application.

For this potential to become reality in an actual case, another condition is required: a significant connection must exist between the imperative domestic rule and the international situation to which it is supposed to apply directly. When all of these conditions are met, the mandatory domestic rule may apply directly to the situation at issue as a standard of necessary application. The application of the said rule thus extends beyond purely domestic relations to embrace an international situation. The scope of Quebec law in international situations is thus extended . ...

More frequently, however, their identification as rules likely to become standards of necessary application and the definition of their international field of application as such are left to the courts. Their application in certain international situations can then be deduced because it is required to attain the objectives of the rules, regardless of any conflict rule. ... In such a situation, the identification of a domestic rule with the capacity to become a standard of necessary application presupposes that the rule is imperative . The next step involves the

interpretation of its objectives. This

interpretation must show that achieving the objectives sought by the rule requires the application of this rule in international relations, even if Quebec law is not designated by a conflict rule. Not all mandatory rules of Quebec meet this condition. ... In these conditions, it seems difficult to justify the application of the Consumer Protection Act, if it is indeed of necessary application , to the purchase in Manitoba of a vehicle by a person from Quebec staying for some time in that province ( General Motors Acceptance Corp. of Canada Ltd. v. Breton , [1986] RJ Q. 781 (Prov Ct) ).

To apply directly to an international situation, imperative domestic rules of Quebec must have sufficiently strong connections to that situation . In some cases, these connections are identified by Quebec rules of private international law (article 3117 and 3118 CCQ ). In others, the law is silent on the issue. A Quebec judge will then decide on a case-by-case basis whether these connections are sufficient.

[Emphasis added.] [ 121 ] What do we learn from this? [ 122 ] Essentially, in the current state of the law, it is problematic to consider the Consumer Protection Act as a whole, or even the

chapter dealing specifically with warranties as constituting rules of immediate application within the meaning of

article 3076 CCQ . Moreover, against a backdrop of globalization, with more and more goods likely to be purchased abroad by people from Quebec or by foreigners importing products under warranty to Quebec when they move here, the situation may evolve. Therefore, the question of warranties applicable to products purchased online from companies that distribute around the globe could eventually be considered to fall under a rule of immediate application. [ 123 ] We have not yet reached that point, however, and for the purposes of this dispute, this last option should be discarded. 3.3.2 Application of the conflict rules to this case [ 124 ] Since the Consumer Protection Act , in general, and the

chapter on legal and conventional warranties, in particular, do not govern this dispute as rules of immediate application, the rules of conflict will determine whether or not Quebec law applies. [ 125 ] The first specific provision to consider is, obviously,

article 3117 CCQ , which enshrines a specific scheme in favour of consumers. The choice by the parties of the law applicable to a consumer contract does not result in depriving the consumer of the protection to which he is entitled under the mandatory provisions of the law of the country where he has his residence if the formation of the contract was preceded by a special offer or an advertisement in that country and the consumer took all the necessary steps for the formation of the contract in that country or if the order was

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