2018 QCCA 1356, 2018 QCCA 1356

Claris Lifesciences Ltd. c. Omega Laboratories Ltd. 2018 QCCA 1356 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027685-189 (500-17-094082-164) DATE: August 23, 2018 BEFORE THE HONOURABLE MARK SCHRAGER, J.A. CLARIS LIFESCIENCES LTD. APPLICANT – Defendant v. OMEGA LABORATORIES LTD.

RESPONDENT – Plaintiff JUDGMENT [ 1 ] Applicant seeks leave to appeal the interlocutory judgment rendered on June 18, 2018 by the Superior Court, District of Montreal (the Honourable Martin Castonguay) (notified July 5, 2018), dismissing Applicant’s declinatory exception invoking forum non conveniens (Article 3135 C.C.Q. ). [ 2 ] The Applicant Indian company entered into supply and distribution agreements with the Respondent Quebec company.

The parties stipulated in one of the agreements that any dispute be resolved before the Swiss courts, in Zurich, applying Swiss law. [ 3 ] Upon Applicant’s alleged breach, Respondent instituted proceedings in accordance with such clause but the Swiss court declined jurisdiction in 2016.

The judgment of the Swiss court is written in German, but Justice Castonguay notes as follows, I assume based on the unofficial (poor) translation shown to me: [29] Omega s’est vue refuser l’accès aux tribunaux suisses, ceux-ci invoquant qu’il existe une proximité telle, entre les faits entourant le litige et les Lois du Québec, que ce débat ne peut être tranché en Suisse. [ 4 ] Immediately following the Swiss judgment, Applicant took proceedings in India to enjoin Respondent from instituting proceedings in Quebec but Justice Castonguay found that such Indian proceedings had not been adequately served or notified to Respondent. [ 5 ] Applicant indicated its intention to move for the production of new evidence consisting of the latest judgment of the Indian court in the matter, apparently finding that the Indian proceedings were properly served on Respondent.

Applicant requested that I refer the instant motion to the Court to be heard together with the motion to produce new evidence. Such request is refused since the application for leave should proceed or fail based on the record before the judge in first instance. The new evidence can only be considered if leave is granted and should not influence that decision as it is extraneous to the record as it now stands.

Moreover, depending on which party I side with the new evidence adds a fact to the consideration of the application of forum non conveniens which is not material to the outcome. [ 6 ] The judgment a quo quickly holds that the Quebec courts have jurisdiction since the alleged damage was suffered in Quebec (article 3148 (3) C.C.Q. ).

This finding is not challenged. [ 7 ] The judge rejects the submission that the courts of India are more appropriate to resolve the dispute than the courts of Quebec because of the connection with Quebec law, the presence of witnesses in Quebec and the fact that the competing Indian proceedings were not properly served on Respondent. The latter element is now arguably contradicted by a recent finding of the Indian court. [ 8 ] Such facts are applicable criteria to a decision applying the doctrine of forum non conveniens according to the Supreme Court of Canada in Spar Aerospace Ltée v.

American Mobile Satellite Corp. [1] [ 9 ] The dismissal of a motion to dismiss is not normally appealable. However, where jurisdiction is in issue, leave may be granted under

Article 31 C.C.P. [2] [ 10 ] However, in my opinion, this case does not qualify for leave under

article 31 C.C.P. [ 11 ] Applicant alleges as an error that the judge failed to distinguish between the forum elected by the parties in their contract and their choice of law. However, the Applicant takes the judge’s remarks out of context. He referred to the decision of the Swiss court to the effect that the facts were so bound up with Quebec law that the courts of this province constitute the appropriate forum. Moreover, the law applicable to the dispute is one of the factors which should be considered in the application of forum non conveniens as enumerated

by the Supreme Court in the Spar Aerospace Ltée v. American Mobile Satellite Corp. [3] The question of the applicable law remains open because, strictly speaking, the judge only decided that the Quebec courts have jurisdiction over the matter and that the courts of India are not a more appropriate forum. [ 12 ] Other grounds raised by Applicant question the judge’s finding that the Indian proceedings were not properly served on Respondent.

Applicant also raises that the judge gave insufficient weight to other factors which favour yielding jurisdiction to the courts of India. [ 13 ] All of the alleged errors raise questions of fact or mixed fact and law and the exercise by the judge of his discretion in refusing to decline jurisdiction based on the doctrine of forum non conveniens .

Not only is such a decision largely fact driven but it is an exception to the rules which attribute jurisdiction to the Quebec courts so that the burden to demonstrate that India is the more appropriate forum is on Applicant. [4] That an Indian court may have recently held that service was proper, does not, on balance, change the equation given the other elements considered by the judge.

It is noteworthy that without indication of any particulars, the Indian court merely stated on August 1, 2018, that “defendant has been served with the present application.” This in no way contradicts Justice Castonguay finding in July that the Indian proceedings originally instituted in 2016, had not been properly served in accordance with the Hague Convention (para. 14 of the judgment).

I agree with Respondent, moreover, that it appears that the Indian court refers to the application to amend rather than the original proceedings. [ 14 ] Deference is due to the judge with regard to all of the foregoing matters given that the decision to decline jurisdiction under

Article 3135 C.C.Q. is discretionary and one of mixed fact and law. I am shown no palpable error which would justify the intervention of this Court. [5] As such, the appeal if allowed to proceed would not have a reasonable chance of success so that the interests of justice are not served by the granting of leave. FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: [ 15 ] REFUSES Applicant’s request to refer the instant application to a bench of three judges seized of a motion to introduce new evidence; [ 16 ] DISMISSES the amended application for leave to appeal, with legal costs. MARK SCHRAGER, J.A.

Mtre Daniel Grodinsky Mtre Gabrielle Tremblay BORDEN, LADNER, GERVAIS For the Applicant Mtre Jonathan Warin LAVERY DE BILLY For the Respondent Date of hearing: August 22, 2018