2018 QCCA 1067, 2018 QCCA 1067

Tailor c. Chiassi 2018 QCCA 1067 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026295-162 (500-14-037217-106) DATE: June 26, 2018 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. MARTIN VAUCLAIR, J.A. GENEVIÈVE MARCOTTE, J.A. HITESH TAILOR APPELLANT – INCIDENTAL RESPONDENT – defendant v.

PRISCA CHIASSI RESPONDENT – INCIDENTAL APPELLANT – plaintiff and FERRETI ART ESTABLISHMENT IMPLEADED PARTY – defendant and CECILIA RISABELLA CHIASSI MARCO FERRETTI ANGELO FERRETTI IMPLEADED PARTIES – impleaded parties JUDGMENT [ 1 ] This is an appeal and an incidental appeal from a judgment of the Superior Court (the Hon.

Marc-André Blanchard) rendered on July 19, 2016 that granted an alternative conclusion of an exception to dismiss of the respondent Priscia Chiassi based on forum non conveniens seeking a declaration that the Court decline jurisdiction to adjudicate the appellant Hitesh Tailor’s motion introductive of suit. Amongst many other conclusions, that proceeding solicits an order to “reconstitute and probate a will, designate a liquidator of a succession and issue letters of verification” regarding the late Roberto Ferretti, who died in Italy in 2005.

The respondent’s incidental appeal asks the Court to conclude that the trial judge erred when he rejected her contention that the Superior Court lacked jurisdiction to hear and decide the appellant’s proceedings, but to hold, if that conclusion is rejected, that the trial judge correctly dismissed the appellant’s proceedings based on forum non conveniens . [ 2 ] Mr. Tailor resides in London, England. He was a very close friend of Mr. Ferretti, and at various periods of time they cohabited as a couple. The respondent Priscia Chiassi is the sister of Mr.

Ferretti’s late wife Francesca, and she resides in Rome, Italy. The other parties to the proceedings in the Superior Court are the plaintiff Ferrari Art Establishment, a legal person created according to the laws of Liechtenstein having its principal place of business in that country, as well as three impleaded parties: Cecilia Risabella Chiassi and Angelo Ferretti, both of whom reside in Italy, and Marco Ferretti, who lives in Montreal according to the appellant, but who in reality has been living in Italy since 2005 according to the documentary evidence referred to in paragraph [10] below.

At a minimum, the connection of the parties to this jurisdiction is tenuous at best. [ 3 ] Mr. Ferretti was born in 1923 in Italy, where he married the respondent’s sister Francesca in 1960. He immigrated to Canada in 1975, without bringing his wife, and purchased a revenue generating property in Pointe-Claire that he transferred for tax purposes to a corporate entity he controlled. He also owned other property in Canada including an apartment building in Montreal in which he retained an apartment. Mr. Ferretti became a Canadian citizen in 1979, the effect of which according to Mr. Tailor was that Mr.

Ferretti lost his Italian citizenship. [ 4 ] This assertion, however, is directly contradicted by an expert opinion from an Italian attorney produced by the respondent to the effect that the acquisition by an Italian citizen of another nationality does not automatically bring about the loss of Italian citizenship in the absence of a renunciation of Italian citizenship, of which there was no evidence in this case. Mr. Tailor produced no expert evidence to contradict the conclusions of the Italian attorney.

[ 5 ] As of the 1980s, however, Mr. Ferretti acquired considerable investment property in Europe, including the United Kingdom, Switzerland and Belgium. Despite also being a Canadian citizen, he lived in Europe, principally in properties he owned in Italy. The evidence shows that he was particularly attached to one such property in Castelfidardo, where he founded the Ferrari Art Institute and maintained a permanent residence. [ 6 ] Whatever time he spent in Canada was fleeting at best.

As the trial judge noted, during such periods of time, the appellant produced no documentary evidence (such as bank or credit card records) in support of the proposition that Mr. Ferretti was domiciled in Canada. The appellant challenges the judge’s conclusion in law as to domicile and the applicable law, but the judge’s observation as to the absence of supporting documentary evidence is at a minimum unimpeachable insofar as it would apply to the lack of evidence that Mr. Ferretti was actually resident in Quebec during this period of time. [ 7 ] When he died in Italy in May of 2005, Mr.

Ferretti held a Canadian passport that was issued in 2002, the last year he resided in Canada by Mr. Tailor’s own admission. In his handwritten last will and testament dated February 7, 2004 that is the object of these proceedings, he declared that he resided in London, England. It is not disputed, however, that he was then spending the vast majority of his time at his residence in Castelfidardo. The trial judge also heard testimony from several witnesses in Italy that was strongly suggestive of Mr. Ferretti’s complete detachment from Canada once he had returned to Italy. [1] [ 8 ] Mr.

Tailor, the petitioner in the Superior Court and the appellant in this case, produced the will before an Italian notary in July 2005 to effect what would be considered in Quebec as the probate of the will. Mr. Ferretti left the bulk of his estate to the Ferrari Art Establishment, which, as previously mentioned, he founded and is located in Castelfidardo, Italy. Mr. Tailor was a witness to the signature of the will, and he is mentioned in three paragraphs of the bequests as follows:

(1) Article 8, whereby Mr. Ferretti bequeaths to Marco Ferretti, inter alia , his “furniture in Canada”, but that the latter “considers, with no obligation, to give the two Buddha statutes to Hitesh Tailor”;

(2) Article 9, “I leave my personal wardrobe, clothes, medical items, etc. to Hitesh Tailor, to decide what to do”;

(3) Article 10, “In case of any dispute or misunderstanding I ask that Mr. Hitesh Tailor is asked to decide as he knows very well my wishes”. [ 9 ] Apart from the mention of “furniture in Canada”, none of the other provisions in Mr. Ferretti’s will refer to the disposal of property in Quebec or for that matter elsewhere in Canada. Moreover, the documentary record before the Court does not disclose the existence of an actual residence in Quebec or any property that Mr.

Ferretti may have owned in Quebec at the time of his death. [2] In fact, the record in the Superior Court contains an inventory of the assets of Mr. Ferretti’s estate Mr. Tailor signed on December 22, 2005 in Italy in which he affirmed that “(il) precise ne pas être en mesure d’indiquer les biens meubles et immeubles éventuels se trouvant à l’étranger au Notaire délégué à l’inventaire.” [3] [ 10 ] It is also worth noting as well that Marco Ferretti did not testify in these proceedings, whether on discovery or at trial, and that beyond Mr.

Tailor’s imperfect recollections, no actual evidence was produced to show the existence of such furniture or what became of it subsequent to Mr. Ferretti’s death in 2005. Moreover, the documentary evidence in the record shows that Marco Ferretti has been living in Italy since December 16, 2005. [4] In fact, the address of Marco Ferretti on Mr. Tailor’s introductory proceedings, 7275 Boulevard Langelier in Montreal, is a Jean Coutu pharmacy in a shopping centre, as Mr.

Tailor acknowledged when cross-examined. [5] Not surprisingly, he could not explain the incredulity of such a residential address. [ 11 ] On subsequent occasions related to the publication of the will in Italy, Mr. Tailor acknowledged in formal documentation, drafted in Italian, that Mr. Ferretti was domiciled in Italy at the time of his death. The trial judge did not accept Mr. Tailor’s testimony to the effect that he understood the Italian word for “domicile” to mean merely “residence”. Such a finding would be inappropriate for an appellate court to disturb, based as it is on an assessment of credibility.

Even if he thought, however, the word meant residence as opposed to domicile, it nevertheless represented a clear acknowledgement that Mr.

Ferretti was not then resident in Quebec. [ 12 ] The trial judge further held that to the extent that there was property of the deceased located in Quebec because of the reference to “furniture in Canada” in the will, the Superior Court enjoyed jurisdiction rationae materiae pursuant to the second paragraph of art. 3153 C.C.Q ., which provides that Quebec courts “have jurisdiction if any property of the deceased is situated in Quebec and a ruling is required as to the devolution or transmission of the property.” [ 13 ] Having thus established the Superior Court’s jurisdiction on that basis, he nevertheless applied the principles of the Supreme Court of Canada judgment in Spar Aerospace Ltd. v.

American Mobile Satelite Corp. [6] to the facts before him and concluded that Italian courts were better suited to adjudicate the appellant’s contentions. He did so on the basis that Mr. Ferretti was in fact resident in Italy at the time of his death, that Mr. Tailor had previously initiated legal proceedings before the appropriate court in Italy, and there were pending legal proceedings initiated by the respondent in Italy relating to the inventory of Mr. Ferretti’s estate. [ 14 ] The appellant argues forcefully that the trial judge erred in concluding that as a matter of law Mr.

Ferretti was domiciled in Italy rather than Quebec. He contends that there is a presumption he was domiciled in Quebec because of his Canadian citizenship, the corresponding loss (from his perspective) of his Italian citizenship, his holding of a Canadian passport and the absence of evidence of his intention to change his domicile, even if he had been for the most

part living abroad in Italy. In this respect, he invokes articles 78 and 3153 C.C.Q. in support of the proposition that Quebec courts have jurisdiction over the subject matter rationae materiae . [ 15 ] The facts relied on by the trial judge do not support Mr. Tailor’s contention that Mr. Ferretti was domiciled in Canada at the time of his death. On the contrary, they establish clearly that he was domiciled in Italy when he died. The trial judge’s conclusion in law based on his findings of fact is well-founded. [ 16 ] That being said, the trial judge erred in attributing jurisdiction rationae materiae to the Superior Court pursuant to the second paragraph of

article 3153 C.C.Q. based on the reference in Mr. Ferretti’s will to “furniture in Canada” in the absence of any actual evidence of the existence of such furniture at the time of the institution of the proceedings (“ sont situés/ is situated”), and what would have become of it after Mr. Ferretti’s death in Italy. This is all the more so when it is remembered that Mr. Tailor had previously declared in Italy being unaware of any assets of Mr. Ferretti’s estate outside of Italy. Moreover, none of the criteria mentioned in the first paragraph of

article 3153 C.C.Q were applicable in that the succession opened in Italy, not Quebec, no defendant to the proceeding was domiciled in Quebec, and Mr. Ferretti did not elect to have the law of Quebec apply to govern his succession.

[ 17 ] The Superior Court therefore lacked jurisdiction rationae materiae to entertain Mr. Tailor’s motion, and trial judge should have granted the conclusion in the respondent’s declinatory exception soliciting its dismissal, thus obviating the need to consider the respondent’s submission concerning forum non conveniens . [ 18 ] We would conclude by saying, however, that had it been necessary to consider Mr.

Tailor’s contentions based on the inapplicability of forum non conveniens , we would have agreed with the analysis and conclusions of the trial judge. [ 19 ] Even if it was conceded for purposes of discussion that the trial judge was right to have attributed jurisdiction to Quebec based on the reference to furniture in Canada in Mr. Ferretti’s will, all of the legatees and the other assets of his Estate are located in Italy, not Quebec. Moreover, neither Mr. Tailor nor the respondent are resident in Quebec. Apart from the technical legal argument relating to the domicile of Mr.

Ferretti, there is no practical or compelling reason why Quebec courts should adjudicate a matter that has so little nexus to Quebec, especially when the very same will has already been verified in Italy at the behest of Mr. Tailor. On the contrary, the circumstances described above show that the courts of Italy are “clearly more appropriate” than those of Quebec, as that term has been explained and applied by LeBel, J. on behalf of the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda [7] and Breeden v.

Black . [8] [ 20 ] The appeal will therefore be dismissed with legal costs, and the incidental appeal allowed with legal costs. FOR THESE REASONS, THE COURT : [ 21 ] DISMISSES the appeal with legal costs; [ 22 ] ALLOWS the incidental appeal with legal costs; [ 23 ] DECLARES that the courts of Quebec lack jurisdiction pursuant to the second paragraph of

article 3153 C.C.Q . to hear and decide the appellant’s “Motion to Reconstitute and Probate a Will, designate a Liquidator of a Succession and Issue Letters of Verification”. ALLAN R. HILTON, J.A. MARTIN VAUCLAIR, J.A. GENEVIÈVE MARCOTTE, J.A. Mtre Patrick Ferland LCM Avocats inc. For the appellant – incidental respondent Mtre Horia Bundaru Mtre Julie Carlesso Norton Rose Fulbright Canada For the respondent – incidental appellant Date of hearing: April 18, 2018