2014 QCCQ 2417, 2014 QCCQ 2417

Sarrapuchiello c. Marzoli 2014 QCCQ 2417 COURT OF QUEBEC (Practice division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division N° : 500-22-208578-131 DATE : March 10, 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ALAIN SARRAPUCHIELLO Plaintiff c. FRANK MARZOLI et MARZCORP OIL & GAS INC.

Defendants ______________________________________________________________________ INTERLOCUTORY JUGEMENT ______________________________________________________________________ [ 1 ] The Defendants, Frank Marzoli and Marzcorp Oil & Gas Inc. (« Defendants »), ask that the suit be dismissed pursuant to articles 68 and 163 C.C.P. and

article 3148 C.C.Q. on the ground that there is no court within the legislative authority of Quebec having jurisdiction over the suit. [ 2 ] The Defendants characterise the action as follows: JC00G0 On December 23, 2013, the Plaintiff took an action to cause the Defendants to reimburse an investment made by the Plaintiff in 200,000 common shares in share capital of the Defendant, MARZCORP OIL & GAS INC. as appears by the subscription agreement and other documents filed by the Plaintiff as Exhibit P-1; [ 3 ] Then, referring to the agreement: […] 9.5 Applicable Law This Subscription Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the internal laws of the Province of Ontario and the laws of Canada applicable therein, without reference to any conflicts of law rules that would impose a law of another jurisdiction.

Any and all disputes arising under this Subscription Agreement, whether as to

interpretation, performance or otherwise, shall be subject to the non-exclusive jurisdiction of the courts of the Province of Ontario and each of the parties hereto hereby irrevocably attorns to the jurisdiction of the courts of such province. […] [ 4 ] They argue that all actions arising out of this agreement must be heard exclusively in Ontario, and that they, as parties to the case have not submitted to the jurisdiction of the Quebec courts, given that their declinatory exception was brought at the first opportunity. [ 5 ]

Article 3148 , in fine C.C.Q. excludes the jurisdiction of the Quebec authority in certain cases:

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 Québec 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. [ 6 ] In the case of the Defendant, Frank Marzoli, clause 9.5 is of no avail, Mr. Marzoli not being a party to the agreement. [ 7 ] In the case of the corporate Defendant, Marzcorp Oil & Gas Inc., the clause is not a true choice of forum clause as intended in

article 3148 in fine C.C.Q. While it does provide that the parties will attorn to the Ontario jurisdiction, it defines that jurisdiction as "non- exclusive". Thus, it does not defeat the jurisdiction of an authority of another state that would otherwise apply to the suit. [ 8 ] The Defendants allege that Marzcorp Oil & Gas Inc. is domiciled in Ontario, at its head office. The bailiff's return, however, establishes that it has an establishment in Quebec. No attempt was made to refute this evidence.

The introductory motion, as amended orally at the hearing, alleges that the Defendants made fraudulent misrepresentations to the Plaintiff in the Province of Quebec as to the "guaranteed" nature of the investments the Plaintiff was induced to make in the capital of Marzcorp Oil & Gas Inc. [ 9 ] This is sufficient to establish the jurisdiction of the Court pursuant to articles 3148 (2) and (3) C.C.Q. [ 10 ] The Plaintiff produced an excerpt of a transcript of testimony of Mr.

Marzoli in another action between the parties in the Superior Court (500-17-080475-133) wherein the stenographer records the solemn declaration and testimony of Mr. Marzoli who is described as "domiciled and residing" at an address in Montreal. This Court therefore has jurisdiction pursuant to article 3148 (1) C.C.Q. [ 11 ] Finally, the Defendants did not formally raise forum non conveniens though the subject was discussed at the hearing.

No case was made for the Court to decline its jurisdiction to that of the Ontario courts. [ 12 ] The matter being at the stage of the first presentation, the parties will proceed by way of a new notice of presentation of the introductory motion. FOR THESE REASONS, THE COURT: DISMISSES the Motion of the Defendants to dismiss the action due to lack of territorial jurisdiction of the Court of Quebec; THE WHOLE, with costs. __________________________________ DAVID L. CAMERON, J.C.Q. Me Dominic Bianco Mercadante Di Pace Attorney for Plaintiff Me Jacqueline Sanderson Attorney for Defendants

Date of hearing : February 18, 2014