2013 QCCA 941, 2013 QCCA 941

Saudi Arabian General Investment Authority c. André R. Dorais Avocats 2013 QCCA 941 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023511-132 (500-17-072702-122) DATE: MAY 23, 2013 PRES IDING : THE HONOURABLE MR. JUSTICE CLÉMENT GASCON, J.A. SAUDI ARABIAN GENERAL INVESTMENT AUTHORITY and THE GOVERNMENT OF THE KINGDOM OF SAUDI ARABIA Petitioners - Defendants v. ANDRÉ R.

DORAIS AVOCATS Respondent - Plaintiff JUDGMENT [ 1 ] The Petitioners, the Saudi Arabian General Investment Authority and the Government of the Kingdom of Saudi Arabia, seek leave to appeal from an interlocutory judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Pierre Nollet), rendered orally on March 19, 2013 (with a revised transcript dated April 9, 2013). [ 2 ] The judgment dismissed the Petitioners' Motion 1) for lack of jurisdiction (pursuant to Article 3148 (2) C.C.Q. ) and 2) to refer the matter to the courts of the Kingdom of Saudi Arabia on the basis of the forum non conveniens doctrine (pursuant to

Article 3135 C.C.Q. ). [ 3 ] This preliminary motion of the Petitioners was filed against a claim instituted by the Respondent, André R. Dorais Avocats, in front of the Quebec Superior Court. The claim is an action for professional services rendered for an amount of CAN$242,418.02.

The Respondent alleges that the " contrat de représentation " at the basis of the claim was concluded in Montreal and that most of the services were rendered in this city. [ 4 ] In their Motion for leave to appeal, the Petitioners submit that the trial judge erred in fact and in law in failing to conclude that the Respondent had elected that any alleged contract to be entered into with them would be subject to the jurisdiction of the courts of the Kingdom of Saudi Arabia.

According to the Petitioners, such an election left the Quebec Superior Court without jurisdiction, as set forth in Article 3148 (2) C.C.Q. : 3148. (…) 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. 3148. […] Cependant , les autorités québécoises ne sont pas compétentes lorsque les parties ont choisi, par convention, de soumettre les litiges nés ou à naître entre elles, à propos d'un rapport juridique déterminé, à une autorité étrangère ou à un arbitre, à moins que le défendeur n'ait reconnu la compétence des autorités québécoises. [ 5 ] The Petitioners also submit that the trial judge erred in fact and in law in dismissing their request for a stay of proceedings based on the forum non conveniens doctrine.

In their view, the judge did not properly evaluate the factors establishing that the courts of the Kingdom of Saudi Arabia were better placed to decide the dispute, as set forth in

Article 3135 C.C.Q .:

3135. Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide. 3135.

Bien qu'elle soit compétente pour connaître d'un litige, une autorité du Québec peut, exceptionnellement et à la demande d'une partie, décliner cette compétence si elle estime que les autorités d'un autre État sont mieux à même de trancher le litige. [ 6 ] In his judgment delivered orally after a one day hearing, the judge concluded that Article 3148 (2) C.C.Q. did not apply since the evidence indicated that no agreement on a "jurisdiction clause" had been reached between the parties.

Hence, the Quebec Superior Court had jurisdiction to hear Respondent's claim based on the allegations of the proceedings. [ 7 ] The judge concluded as well that, in his view, the authorities of the Kingdom of Saudi Arabia were clearly not better placed (" nettement plus appropriées ") than the Quebec Superior Court to decide the dispute. He did so following his analysis of the criteria established by the Supreme Court in Spar Aerospace v. American Mobile Satellite [1] and based on his review of the recent decision of the Court in Stormbreaker Marketing and Productions Inc. v. Weinstock [2] .

The judge opined that the situation was not exceptional to the point of justifying the Quebec Superior Court to decline exercising its jurisdiction to decide the matter. [ 8 ] I consider that leave to appeal should not be granted to the Petitioners under the circumstances. [ 9 ] While both parties agree that the case is one that is contemplated by

Article 29 C.C.P. as it dismisses a motion for an alleged lack of jurisdiction, it remains that, in my view, the pursuit of justice (" les fins de la justice ") does not require that leave be granted in this matter (Article 511 C.C.P .). [ 10 ] In deciding whether the pursuit of justice criteria set forth in

Article 511 C.C.P. is met , the motion judge exercises a discretionary power and enjoys large latitude. In this regard, the role of the motion judge is, amongst others, to filter to some extent the requests for leave to appeal. In that exercise, the motion judge must assess whether or not a petitioner has a reasonable chance of convincing the Court to reverse the trial judgment with respect to which leave is being sought [3] . [ 11 ] Similarly, this pursuit of justice criteria of

Article 511 C.C.P. sometimes requires consideration of the principles of proportionality of

Article 4.2 C.C.P. , as my colleague, Madam Justice Bich, J.A., recently stated in Corporation Sun Media v. Gesca Ltée [4] : [8] La « justice » dont parle cet

article n'est pas une justice absolue mesurée à l'aune du seul intérêt de la

partie requérante, mais une justice pratique, tenant compte des intérêts de toutes les parties en cause et tenant compte aussi de la bonne marche et de l'économie du système judiciaire, qui accorde une importance désormais capitale à la proportionnalité, principe consacré par l'article 4.2 C.p.c. et qui s'applique également au stade de l'appel. C'est ce qui explique, par exemple, qu'un pourvoi dont le juge autorisateur estime qu'il est voué à l'échec ou a peu de chances de succès ne sera pas permis.

Il faut souligner enfin que, dans l'exercice du pouvoir que lui confère l'article 511 C.p.c. , le juge saisi de la requête pour autorisation d'appel jouit d'une vaste latitude. [ 12 ] Here, the Respondent is suing the Petitioners in front of the Quebec Superior Court for professional services rendered.

He is suing them in this province because, pursuant to his allegations, the " contrat de représentation " at the basis of the claim was concluded in Montreal where most of the services were also rendered. [ 13 ] On the Petitioners' lack of jurisdiction argument based on Article 3148 (2) C.C.Q. , the judge ruled that the evidence did not support their assertion that the parties had chosen, implicitly or explicitly, to submit to the jurisdiction of the Kingdom of Saudi Arabia by agreement. [ 14 ] In this respect, the judge emphasized that the Petitioners were indeed denying the mere existence of any agreement between the parties for the professional services at issue.

In fact, he considered this somewhat contradictory with the line of argument presented by the Petitioners on this specific point. Still, in their Motion for leave to appeal, the Petitioners are again insisting that they are expressly denying that the parties ever entered into any kind of contract (para. 54 of the Motion). [ 15 ] In my opinion, the Motion for leave to appeal does not establish to what extent, if any, the judge made a manifest and dominant error in his assessment of the factual evidence that he analyzed before reaching that conclusion.

Accordingly, the Petitioners do not satisfy me that they have a reasonable chance of convincing the Court to review this conclusion of the judge that is, after all, largely based on what appears to be a reasonable assessment of the evidence currently in the record. [ 16 ] Turning to the other aspect of the judgment dealing with the forum non conveniens doctrine, the Petitioners recognize, at para. 42 of their Motion, that the judge exercised a judicial discretion in assessing whether or not, pursuant to

Article 3135 C.C.Q. , the Quebec Courts should exceptionally decline their jurisdiction to hear the dispute because the Kingdom of Saudi Arabia was in a better position to decide. [ 17 ] Again, the Petitioners do not establish, in my view, a manifest and dominant error of the judge in his assessment of the criteria set forth by the Supreme Court in the Spar Aerospace decision. In essence, the Petitioners' argument is focussed on a criticism of his analysis of one or two of these numerous criteria.

However, it is clear from the judgment that the judge thoroughly considered each of the applicable factors in his analysis of their submission. Based on this overall assessment, he concluded that, under the circumstances, the authorities of the Kingdom of Saudi Arabia were not in a better position than the Quebec Courts to rule upon the Respondent's proceedings. [ 18 ] From that standpoint, the judge applied what the Court recently reaffirmed in the Stormbreaker Marketing and Productions decision, namely that jurisdiction should only be declined pursuant to

Article 3135 C.C.Q . when the authorities of the other country are " nettement plus appropriées " than the Quebec Courts to decide the issue, and then again, only exceptionally.

[ 19 ] Given the discretion enjoyed by the trial judge in this regard, the factual analysis that he thoroughly followed and his correct application of the Spar Aerospace and Stormbreaker decisions, I consider that the Petitioners do not have a reasonable chance of convincing the Court to reverse the judgment rendered under the circumstances. FOR THESE REASONS, THE UNDERSIGNED: [ 20 ] DISMISSES the Petitioners' Motion for leave to appeal, with costs. CLÉMENT GASCON, J.A. Mtre Daniel Grodinsky BORDEN LADNER GERVAIS For the Petitioners Mtre Stéphane Rivard RIVARD ET ASSOCIÉS Mtre Sabrina Brosseau-Malo ANDRÉ R. DORAIS AVOCATS For the Respondent Date of hearing: May 17, 2013