2017 QCCA 1398, 2017 QCCA 1398

Waldman c. Waldman 2017 QCCA 1398 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026638-171 (500-17-094246-165) MINUTES OF THE HEARING DATE: SEPTEMBER 15, 2017 CORAM: THE HONOURABLE MARIE-FRANCE BICH , J.A. MANON SAVARD , J.A. ROBERT M. MAINVILLE , J.A. APPELLANT COUNSEL ASHER WALDMAN Mtre LAZAR SARNA (Sarna Neudorfer) RESPONDENTS COUNSEL MICHA WALDMAN RAN WALDMAN Mtre leslie a. beck (Gravenor Beck) On appeal from a judgment rendered on January 30, 2017 by the Honourable Justice Pierre-C. Gagnon of the Superior Court, District of Montreal

DESCRIPTION : Declinatory Exception – Forum non conveniens Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING Continuation of the hearing of September 14, 2017. Counsel were excused from appearing in Court this afternoon. 4:00 Judgment – see page 3. Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] The parties are brothers. The appellant resides in Montreal while the respondents reside in Israel. [ 2 ] In his proceedings before the Quebec Superior Court, the appellant blames the respondents for having unduly:

i) induced him into paying $81,000 in taxes on their behalf while they knew he was to be disinherited in their father’s will dated January 1, 2014, and ii) influenced their late father to disinherit him rendering themselves unworthy of a generous gift from the appellant of more than $ 207,000. The appellant therefore considers himself entitled to recover the amount paid on their behalf (as well as associated expenses) and to revoke the gift.

The total amount claimed to the respondents is $306,829. [ 3 ] The appellant also filed, before the Inheritance Registrar in Israel, an objection to the probate of his father’s will dated January 1, 2014.

No decision has been yet rendered on this procedure. [ 4 ] Before filing any defence, the respondents brought a motion for declinatory exception based on absence of jurisdiction rationae materiae or, subsidiarily, on forum non conveniens , which was granted by the judgment of the Superior Court under appeal [1] . [ 5 ] The Court is of the view that the judge correctly concluded that the Superior Court had no jurisdiction rationae materiae pursuant to paragraph (3) of

article 3148 C.C.Q. , the other paragraphs of this provision being irrelevant. [ 6 ] The alleged faults (or injurious acts) of the respondents were all committed in Israel, which is not in dispute. In addition, the gift was made in Israel as the amount was paid by bank transfer to the respondents’ accounts in Israel (articles 1806, 1824, al. 2 and 1825 C.C.Q. ). The alleged agreement between the parties with regard to the amount paid on their behalf ($81,000) also intervened in Israel.

None of the obligations arising from this agreement (payment being due in Israel pursuant to art. 1566 C.C.Q. ) was to be performed in Quebec and none remained to be performed once the gift was made and accepted, in Israel. [ 7 ] The appellant however contends that the alleged prejudice (being of the nature of an economic damage) is suffered in Quebec. The Court does not agree. With regard to the tax agreement, if the appellant is successful, payment will be due in Israel (para. 9 of the appellant’s re-amended judicial application originating a proceeding).

As for the revocation of the gift, the notion of prejudice as understood under para. 3148(3) C.C.Q. appears not to be applicable since such revocation, if granted, is not of a compensatory nature.

And, assuming that the criteria of prejudice is applicable to such situation, the obligation to return the amount received as a gift should it be revoked by reason of the respondents’ alleged ingratitude will occur in Israel. [ 8 ] Moreover, even if the Superior Court had jurisdiction, the appellant has failed to demonstrate that the judge made a reviewable error in the exercise of his discretion by concluding that the proceedings before the Israeli courts amounted to a “clearly preferable

alternative” for deciding the appellant’s claim (art. 3135 C.C.Q. ). Having correctly identified the factors to be considered in such circumstances ( Spar Aerospace ltée v. American Mobile Satellite Corp ., 2002 SCC 78 ), he rightly concluded that : [26] Here, the test clearly favours recognizing that the authorities of Israel are in a better position to decide the dispute brought before the Superior Court. [27] In particular: (

a) most of the witnesses reside in Israel; (

b) there are closely related proceedings initiated by Asher W. in Israel; (

c) if Asher W. were to be successful with his claim, a judgment rendered in Québec would need to be recognized and executed in Israel; and (

d) execution of such judgment would be against assets of Micha w. and Ran W., situated in Israel. [28] On a practical note, if Asher W. were to succeed before the Inheritance Registrar in Israel and have the probate of the father’s will denied, then there would be very little substance left to his alleged cause of action in Québec.

Asher W. would get his share of his late father’s estate and suffer no loss. […] [31] The proper administration of justice and the principle of comity towards the authorities of Israel, calls for the application of the principle of forum non conveniens (art. 3135 CCQ ). [32] The Court declines jurisdiction in favour of the authorities of Israel. [ 9 ] The appellant underlines that para. 26 of the judgement could have been worded differently, but, even if it were so, it does not affect the validity of the judge’s overall analysis. As the Supreme Court stated in Club Resorts Ltd v. Van Breda ,

article 3135 C.C.Q. « refers to the exceptional nature of the power conferred on a Quebec authority to decline jurisdiction: “ it may exceptionally and on an application by a party, decline jurisdiction” » [2] . Therefore, in order to decline jurisdiction, the Quebec court must consider that the court of another country is « in a better position to dispose fairly and efficiently of the litigation » [3] or, in other words, « is clearly more appropriate » [4] . That is precisely the conclusion of the judge of the Superior Court and we find no reviewable error with respect to that conclusion.

For these reasons, the Court: [ 10 ] DISMISSES the appeal, with legal costs. MARIE-FRANCE BICH, J.A. MANON SAVARD, J.A. ROBERT M. MAINVILLE, J.A.