2018 QCCA 163, 2018 QCCA 163

Poppy Industries Canada Inc. c. Diva Delights Ltd. 2018 QCCA 163 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026014-167 (500-17-091675-150) DATE: February 2 nd , 2018 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. MANON SAVARD, J.A. CLAUDINE ROY, J.A. POPPY INDUSTRIES CANADA INC. APPELLANT - Plaintiff v. DIVA DELIGHTS LTD. RESPONDENT - Defendant JUDGMENT [ 1 ] The Court is seized with an appeal from a judgment issued March 16, 2016 by the Superior Court (the Honourable Mr.

Justice William Fraiberg), District of Montreal, granting an application to dismiss for lack of jurisdiction, forum non conveniens and lis pendens , declaring that the Superior Court has no jurisdiction with respect to two of three claims for damages and staying the Québec proceeding for damages to reputation. [ 2 ] For the reasons of Roy, J.A., with which Doyon and Savard, JJ.A., concur, THE COURT : [ 3 ] GRANTS leave to appeal; [ 4 ] ALLOWS the appeal; [ 5 ] OVERTURNS the judgment rendered by the Superior Court on March 16, 2016 in the case bearing the Court number 500-17- 091675-150; [ 6 ] DISMISSES Diva Delights Ltd’s Application to dismiss for lack of jurisdiction, forum non conveniens and/or lis pendens ; [ 7 ] THE WHOLE WITH LEGAL COSTS in favor of Appellant both before this Court and the Superior Court.

FRANÇOIS DOYON, J.A. MANON SAVARD, J.A. CLAUDINE ROY, J.A. Mtre Mirna Kaddis MCMILLAN For the Appellant Mtre Jonathan Feingold ROBINSON SHEPPARD SHAPIRO For the Respondent Date of hearing: December 12, 2017

REASONS OF ROY, J.A. [ 8 ] This is an appeal from a judgment issued March 16, 2016 by the Superior Court, District of Montreal, granting an application to dismiss for lack of jurisdiction, forum non conveniens and lis pendens ( Application to Dismiss ), declaring that the Superior Court has no jurisdiction with respect to two of three claims for damages and staying the Québec proceeding for damages to reputation, until judgment in a Manitoba proceeding. [1] 1.

CONTEXT [ 9 ] Poppy Industries Canada Inc. ( Poppy ) is a Québec-based company which distributes food products in Canada and the United States of America ( USA ). Diva Delights Ltd. ( Diva ) is a Manitoba-based company which manufactures food products. [ 10 ] Since 2009, Poppy had been the marketing, logistics, sales and distribution entity with respect to Diva’s products in Québec, Ontario and the USA. In April 2015, Diva tried to arrange for termination of its relationship with Poppy as of July 1, 2015.

Poppy took the position that this termination was without cause and that Diva had failed to provide a reasonable notice of termination.

In May 2015, after negotiations, the parties entered into a settlement agreement ( Settlement Agreement ) which extended the termination notice period to December 31, 2015. [ 11 ] The Settlement Agreement provided that: • the relationship between Poppy and Diva would continue in accordance with their past practice, except as expressly modified in the Settlement Agreement, until December 31, 2015; • until December 31, 2015, Poppy would use all reasonable commercial efforts to continue to secure orders of Diva’s crisps from the customers Costco East, Metro, Target, Safeway USA, Amazon, The Fresh Market, Meijer and Harris Teeter ( Customers ), but not Trader Joe’s; • Poppy would not sell products competing with Diva’s crisps to its Customers; • Diva would not contact any of Poppy’s Customers and, if approached by a customer, would advise it that all enquiries and orders had to be placed through Poppy; • payment terms on Poppy’s orders from Diva were to be in accordance with the past practice of the parties and Poppy was to pay Diva in accordance with the past practice of the parties; • during the termination notice period, and for a period of 12 months after, the parties agreed to make no representation to anyone intending or reasonably expected to harm the other party’s reputation; • up to December 31, 2015, Diva would deal directly with Trader Joe’s and would use all reasonable commercial efforts to maximize its sales to this customer, for which Diva would pay US$0.50 to Poppy per unit sold. [ 12 ] Disagreement between the parties began with an exchange of e-mails in November 2015, where Diva advised that it would not be able to deliver all goods ordered by Poppy prior to December 31, 2015, and that orders delivered after that date would not be considered as sales by Poppy. [ 13 ] As a result of the parties’ different

interpretations of their obligations under the Settlement Agreement, litigation arose in Québec and in Manitoba. Diva commenced proceedings in Manitoba on November 27, 2015 but Poppy was only served on December 11, 2015.

Meanwhile, on December 2, 2015, Poppy had instituted proceedings against Diva in Québec. [ 14 ] In Québec, Poppy is claiming: • loss of profits in relation to orders placed by Poppy before December 31, 2015 but not delivered by Diva before that date ( Loss of Sales Claim ); • compensation for Diva’s lack of effort to sell products to Trader Joe’s and the corresponding loss for Poppy ( Trader Joe’s Claim ); • damages to reputation ( Reputational Damages Claim ). [ 15 ] Diva filed an application to dismiss the Québec proceeding for lack of jurisdiction, forum non conveniens and lis pendens .

On the lack of jurisdiction, Diva invokes four elements. The first two are not contested: • Diva is not domiciled in Québec and does not have an establishment there; • there is no exclusive jurisdiction clause requiring the parties to submit disputes to Québec authorities and Diva has not attorned to the jurisdiction of Québec. [ 16 ] The other two arguments raised by Diva concern the situs of the injury and where obligations were to be performed, within the meaning of Article 3148 (3) C.C.Q. :

• the prejudice alleged by Poppy is purely economic and therefore not sufficient to grant the Superior Court jurisdiction within the meaning of Article 3148 (3) C.C.Q. ; • the principal issue raised by Poppy concerns Diva’s obligation to produce and deliver orders secured by Poppy and to make efforts to sell to Trader Joe’s; both obligations are performed outside of Québec. [ 17 ] In the Manitoba proceeding, Diva is claiming that Poppy did not use all reasonable commercial efforts to secure orders during the termination notice period, failed to continue to conduct business in accordance with past practices of the parties and disparaged Diva to Customers.

A mirror motion for lack of jurisdiction has been filed by Poppy in Manitoba.

The parties addressed the jurisdictional issues in Québec first. [ 18 ] The trial judge: • declared that the Superior Court of Québec had no jurisdiction with respect to the Loss of Sales and Trader Joe’s Claims because the loss did not occur in Québec nor did the Settlement Agreement stipulate that Poppy had to perform its obligations in Québec; • did not analyze the forum non conveniens argument considering it could not be seriously contemplated because the Québec authorities did not have jurisdiction on the economic claims and the claim for moral damages was stayed; • declared that there is lis pendens between Poppy’s Reputational Damages Claim and Diva’s action pending before the Manitoba Court of Queen’s Bench and stayed this application pending the Manitoba Court proceeding. 2.

LEAVE TO APPEAL [ 19 ] Poppy filed both a notice of appeal and an application for leave to appeal de bene esse . The application for leave to appeal was deferred to the panel hearing the merits. [2] [ 20 ] Since the trial judge considered the Québec authorities only had jurisdiction on the $10,000 claim for moral damages, he should have declined jurisdiction and transferred the file to the Court of Québec. The judgment would then have been a final judgment appealable as of right by virtue of

Article 30 C.C.P. [3] [ 21 ] However, as formulated, the judgment is one that “determines part of the dispute” within the meaning of

Article 31 C.C.P. and, as such, requires leave to appeal. [ 22 ] As explained by J. Mainville, for the Court, in Larivière c. Ville de Montréal (Service de police de la Ville de Montréal ), [4] leave to appeal is required if a judgment partially grants a declinatory exception as it is a judgement rendered “in the course of a proceeding” within the meaning of

Article 31 C.C.P. : [36] Je suis d’avis que c’est l’approche préconisée par la juge Tourigny, le juge Chamberland et la juge Bich qui doit maintenant clairement prévaloir sous le nouveau Code de procédure civile. En effet, la distinction entre « jugement final » et « jugement interlocutoire » aux fins d’un appel est désuète. L’article 30 C.p.c. énonce plutôt que ce sont les jugements « qui mettent fin à une instance » qui sont susceptibles d’appel de plein droit.

Même si l’idée qu’une même instance puisse comporter plusieurs « jugements finals » pourrait toujours se défendre, seul le jugement « final » qui « met fin à l’instance » est susceptible d’appel de plein droit sous le nouveau C.p.c. [37] Les autres jugements « finals » rendus en cours d’instance et qui décident en

partie du litige, tel le jugement par lequel un tribunal décline compétence sur une

partie du litige ou accueille une irrecevabilité au moyen d’une inscription en droit partielle, ne pourraient être visés que par l’ art. 31 C.p.c . si l’instance se continue devant le même tribunal entre les mêmes parties. En effet, ces jugements ne mettent pas fin à l’instance . [Emphasis added] [ 23 ] I would grant leave to appeal because the judgment determines part of the dispute or causes irremediable prejudice to a party, within the meaning of

Article 31 C.C.P. 3. JURISDICTION OF QUÉBEC AUTHORITIES [ 24 ] International jurisdiction of Québec authorities is governed by Title Three of Book Ten of the Civil Code of Québec . More specifically, in this instance, the parties are referring to the conditions set out in Article 3148 (3) C.C.Q. : 3148. In personal actions of a patrimonial nature, Québec authorities have jurisdiction in the following cases: […] 3148. Dans les actions personnelles à caractère patrimonial, les autorités québécoises sont compétentes dans les cas suivants: […]

(3) a fault was committed in Québec, injury was suffered in Québec , an injurious act or omission occurred in Québec or one of the obligations arising from a contract was to be performed in Québec ; […] [Emphasis added] 3° Une faute a été commise au Québec, un préjudice y a été subi , un fait dommageable s’y est produit ou l’une des obligations découlant d’un contrat devait y être exécutée ; […] [Soulignement ajouté] [ 25 ] Any one of the four factors mentioned in Article 3148 (3) C.C.Q. will constitute a sufficient connection with the province to ground jurisdiction. [5] [ 26 ] The facts alleged by a party to bring its proceeding within the jurisdiction of the court must be taken as averred and the opposing party may challenge these facts by presenting evidence. [6] 3.1 Obligations to Be Performed in Québec [ 27 ] To assert jurisdiction, Article 3148 (3) C.C.Q. requires that at least “one of the obligations arising from a contract was to be performed in Québec”. [ 28 ] Even if there is a difference between an obligation being executed in Québec in fact and the requirement that an obligation be executed in Québec according to the contract, [7] and even if the distribution contract has not been produced in evidence, there are enough elements to conclude that some of the obligations were required to be performed in Québec. [8] [ 29 ] The Settlement Agreement provides for Poppy to continue to use all reasonable commercial efforts to secure orders from its Customers and to continue “to provide the marketing, logistical, sales, distribution and other services that it has historically provided to Diva” and the evidence shows that Poppy operated only from Québec in the past: [9] 5.

Poppy and its operations are located in Montreal, Quebec; […] 7. At all material times, Poppy managed the relationships with its customers of Diva products and Diva had no direct contact with Poppy’s customers; […] 18. […] (

d) The obligations that Poppy had to perform pursuant to the Settlement Agreement (Exhibit P-2 of the Motion to Institute Proceedings) were performed in Quebec, including securing new customers for Diva Products (including customers located in Quebec such as Metro […], taking orders for Diva products, marketing Diva products and maintaining client relationships; […] (

f) Poppy’s efforts to secure orders for Diva’s products were all made in Montreal, Quebec, so Poppy’s evidence in that regard is located in Quebec; (

g) Communication with clients was made through and from Poppy’s office in Montreal […]; […] [ 30 ] It is not necessary that the cause of action be a violation of the obligation to be performed in Québec, only that there be at least one obligation to be performed here: [10] 90. […] ou une obligation découlant d’un contrat, quand cette obligation devait être exécutée au Québec.

Il ne semble pas qu’il soit nécessaire, dans ce dernier cas, que la cause d’action soit fondée sur la violation de l’obligation qui devait être exécutée au Québec, car dans ce cas il s’agirait d’une faute commise au Québec (déjà un chef de compétence). […] [ 31 ] Consequently, the Québec authorities have jurisdiction because some of the obligations were to be performed in Québec. 3.2 Injury Suffered in Québec [ 32 ] Article 3148 (3) C.C.Q. also gives jurisdiction to the Québec authorities when “injury was suffered” in Québec. In E. Hofmann Plastics Inc. v.

Tribec Metals Ltd. , [11] this Court decided that this provision did not require that each potential cause of action bear a connecting factor to Québec and that one cause of action is enough to grant jurisdiction: [13] Firstly, the historical evolution of Quebec’s private international law supports exercising jurisdiction in the instant case. Prior to the entry into force of the C.C.Q . in 1994, the question of international jurisdiction was decided pursuant to

article 68 C.C.P . , which required that the whole cause of action originate in Quebec. Now article 3148(3) C.C.Q. establishes jurisdiction on the basis of one key element of the cause originating in Quebec (fault, damage, injurious act, or an obligation arising from a contract). The appellant’s

assertion that 3148(3) requires both causes of action to originate in Quebec ignores this legislative evolution from

article 68 C.C.P . to article 3148(3) C.C.Q. Moreover, the minister’s comments tell us that part of 3148(3)’s raison d’être is to avoid the complications that arose from the application of

article 68 C.C.P. in the context of international jurisdiction: “ Le troisième point ne reprend pas l’expression du droit antérieur ‘toute la cause d’action’, puisque l’application de cette règle était la source de nombreuses difficultés .” Requiring article 3148(3) to apply to both causes of action would reintroduce complications similar to those that resulted from the application of

article 68 C.C.P., such as an unnecessary division of the dispute to be spread out over two jurisdictions. The legislator has chosen to avoid such scenarios. [References omitted] [ 33 ] Consequently, jurisdiction must be determined globally, and not separately for each cause of action. Jurisdiction over one of the causes of action will be sufficient to grant jurisdiction for the whole proceeding. 3.2.1 Reputational Damages Claim [ 34 ] In its motion, Poppy seeks damages for loss of reputation as a result of Diva’s dealings with Poppy’s Customers: 26.

Sections 9 and 10 of the Settlement Agreement provide for a special treatment to the sales of Diva products made to Trader Joe’s. This is because, even before the first illegal termination notice issued by Diva to Poppy in the Spring of 2015, Diva contacted Trader Joe’s and undercut Poppy with respect to this customer and made it impossible for Poppy to continue its business with Trader Joe’s, this seriously damaged Poppy’s reputation and good standing with this customer. […] 28. Finally, Diva has been communicating with Customers for other purposes than becoming a vendor of record (Section 4).

This is a direct breach of Sections 3 c. and d. of the Settlement Agreement. […] 31. As a result of Diva’s illegal actions and her dealings with Poppy’s Customers, the Plaintiff has suffered damages to its reputation that it estimates at the time being at $10,000 . 32.

Poppy is a Quebec based company, all the damages have been suffered in Quebec, namely the damages to its reputation […] [Emphasis added] [ 35 ] Damages to the reputation of a legal person usually constitute an injury suffered at its place of business. [12] If Diva harmed Poppy’s reputation – and it is not at this stage that the merit of the claim is to be decided – the situs of the injury is in Québec, where Poppy has its domicile, place of business, employees, operations and contacts with customers. [13] [ 36 ] On appeal, Diva argued that the claim was not sufficiently substantiated in the proceedings, thus indicating that it was added only for the purpose of attempting to ground jurisdiction in Québec.

While it is true that the allegations regarding harm to reputation are not detailed, [14] the Court cannot infer from the lack of detail that Poppy added the claim solely for purposes of jurisdiction.

The facts here must be distinguished from those in Spar Aerospace . [15] In that case, Spar Aerospace was claiming harm to its reputation at a place other than its domicile and more detailed evidence was adduced at the beginning of the proceedings. [ 37 ] It is telling that Diva did not raise any issue regarding the situs of the alleged harm to reputation claim in its motion to dismiss for lack of jurisdiction nor did it provide any evidence that would raise a possibility that the injury was suffered elsewhere.

In fact, before the trial judge, Diva agreed that a connection existed between the jurisdiction of Québec and the harm to reputation claim. [16] [ 38 ] The trial judge seemed to be concerned by the fact that this claim is substantially smaller than the other two. [17] But this consideration is irrelevant, as the Supreme Court of Canada decided in Spar Aerospace . A similar disparity was present in that case: Spar Aerospace was claiming $50,000 for loss of future profits caused by loss of reputation and more than $800,000 for loss of performance incentives.

Article 3148 (3) C.C.Q. does not establish jurisdiction on the basis of the amount claimed, it simply requires that the injury [18] be suffered in Québec: [19] 37 In their arguments, the appellants seem to conflate the issue of the “damage” suffered in Québec with the issue of the amount of damages claimed in Québec. In this case, we are only concerned with the former as art. 3148 requires that “damage” be suffered in Québec in order to ground jurisdiction.

The amount of damages that the respondent is claiming is not a concern for the jurisdiction question but may be one of many factors to be considered in a forum non conveniens application, […]. 3.2.2 Loss of Sales and Trader Joe’s Claims [ 39 ] Poppy also argued that it suffered injury in Québec for the Loss of Sales Claim and the Trader Joe’s Claim. [ 40 ] Much has been written on the situs of the injury when the loss is an economic loss: [20] some suggest a broader

interpretation of Article 3148 (3) C.C.Q. , others prefer a more restrictive approach. In 2013, the Supreme Court of Canada addressed the issue in Infineon Technologies AG v. Option consommateurs , [21] in a judgment authorizing a class action. It referred to the distinction between damage suffered in Québec and damage simply recorded in Québec: [45] Damage suffered in Quebec is an independent factor under art. 3148(3): the damage does not need to be tied to the locus of the injury or of the fault, unlike in the case of art. 3168, to give one example.

Any one of the four individual factors listed in art. 3148(3) would constitute a sufficient connection with the province to ground jurisdiction […]. In terms of the type of damage covered by art.

3148(3), there is no principled reason to exclude purely economic damage from its scope. The plain language of art. 3148(3) does not preclude economic damage from serving as a connecting factor, nor is the recovery of a purely economic loss prohibited in Quebec civil law […]. It is clear from the Quebec jurisprudence that economic damage can serve as a connecting factor under art. 3148(3) […]. [46] Quebecor Printing , a case the appellants rely on, should not be read so broadly as to systematically exclude a purely economic loss as a type of damage to which art. 3148(3) applies.

Rather, that case indicates that where financial damage is merely recorded in Quebec, that fact is not sufficient to ground jurisdiction under art. 3148(3). To satisfy the requirement of art. 3148(3), the damage must be suffered in Quebec.

As Kasirer J.A. explained in the judgment of the Court of Appeal in the case at bar, there is a distinction between damage that is substantially suffered in Quebec and damage that is simply recorded in Quebec on the basis of the location of the plaintiff’s patrimony: [ Préjudice ] is to be distinguished from the “ dommage /damage” that is the subjective consequence of the injury relevant to the measure of reparation needed to make good the loss.

As a result, in specifying “damage was suffered in Québec/ un préjudice y a été subi ” as the relevant connecting factor, article 3148(3) seeks to identify the substantive situs of the “bodily, moral or material injury which is the immediate and direct consequence of the debtor’s default” (article 1607 C.C.Q.) and not the situs of the patrimony in which the consequence of that injury is recorded. [para. 65] [47] This application of the C.C.Q. is not, as the appellants assert, a novel, or undue, extension of Quebec’s jurisdiction. Rather, it is based on the language of art. 3148(3) and on the jurisprudence.

As this Court stated in Spar Aerospace , at para. 58, “[t]here is abundant support for the proposition that art. 3148 sets out a broad basis for jurisdiction.” [References omitted] [ 41 ] The legislator replaced the word “damage” with the word “injury” in May 2014, as part of a series of amendments made to ensure terminological uniformity without changing the substance of the text, as allowed by

section 3 of the Act respecting the Compilation of Québec Laws and Regulations . [22] [ 42 ] The Loss of Sales and Trader Joe’s Claims are based on the failure to deliver goods before the end of the termination notice period, and the failure to make all reasonable efforts to sell products to Trader Joe’s, thus preventing Poppy from making a profit and receiving higher compensation per item sold. [ 43 ] For both claims, Diva argued that Poppy’s economic loss would only be “recorded” in Québec, but not “suffered” here.

It argued that, in the absence of proof to the contrary, the Court should presume that payments for the orders (Loss of Sales Claim) were to be made by Poppy’s Customers at their respective places of business in Ontario and the USA by virtue of

Article 1734 C.C.Q. : 1734. The buyer is bound to take delivery of the property sold, and to pay the price thereof at the time and place of delivery. He is also bound to pay any expenses related to the act of sale. 1734. L’acheteur est tenu de prendre livraison du bien vendu et d’en payer le prix au moment et au lieu de la délivrance. Il est aussi tenu, le cas échéant, de payer les frais de l’acte de vente. and that, pursuant to

Article 1566 C.C.Q. , payment regarding the Trader Joe’s Claim had to be made in Manitoba: 1566. Payment is made at the place expressly or impliedly indicated by the parties. If no place is indicated by the parties, payment is made at the domicile of the debtor, unless what is due is certain and determinate property, in which case payment is made at the place where the property was when the obligation arose. 1566. Le paiement se fait au lieu désigné expressément ou implicitement par les parties.

Si le lieu n’est pas ainsi désigné, le paiement se fait au domicile du débiteur, à moins que ce qui est dû ne soit un bien individualisé, auquel cas le paiement se fait au lieu où le bien se trouvait lorsque l’obligation est née. [ 44 ] Diva’s reference to these legislative provisions is surprising as it argues in its motion that Manitoba law, not Québec law, should apply to the litigation. [23] [ 45 ] In any case, the place where a payment was due is not necessarily where an injury was suffered.

Article 3148 (3) C.C.Q. grants jurisdiction either where “an injurious act or omission occurred in Québec” or where “injury was suffered in Québec”. [ 46 ] In both cases, there is a serious argument to be made that economic loss was suffered in Québec: Poppy’s domicile, only place of business and where all its operations are run.

However, it is unnecessary to decide the issue since I have already concluded that some of the obligations had to be performed in Québec and that the reputational damages were suffered here. 3.2.3 Conclusion [ 47 ] In my opinion, Québec authorities have jurisdiction on the proceedings. 4. FORUM NON CONVENIENS [ 48 ] The trial judge considered that the forum non conveniens argument could not be seriously contemplated. In my opinion, it should have been. [ 49 ]

Article 3135 C.C.Q. allows a Québec authority that has jurisdiction to hear a dispute to decline jurisdiction, exceptionally , if the

other forum is in a better position to decide the dispute: 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 State are in a better position to decide the dispute. 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. [ 50 ] The factors to be taken into consideration to decide whether a foreign jurisdiction is in a better position to hear the case are well established: [24] • the parties’ residence, that of witnesses and experts; • the location of the material evidence; • the place where the contract was negotiated and executed; • the existence of proceedings pending between the parties in another jurisdiction; • the location of the defendant’s assets; • the applicable law; • the advantages conferred upon plaintiff by its choice of forum, if any; • the interests of justice; • the interests of the parties; • the need to have the judgment recognized in another jurisdiction. [ 51 ] Diva invoked four of these criteria only: the location of witnesses and evidence, the applicable law and the need to have the judgment recognized in another jurisdiction. [ 52 ] The location of the witnesses and the evidence in this case does not favour one forum more than the other.

Witnesses and evidence will come from Manitoba and from Québec. As for the Trader Joe’s Claim, any American witnesses who testify will either have to go to Québec or Manitoba or, more simply, testify by videoconference. [ 53 ] As for the applicable law, there is a debate between the parties. Poppy claims that Québec law applies while Diva wishes to apply Manitoba law.

Under the present circumstances, this factor does not favour one location or the other. [ 54 ] Diva also argued that its assets are located in Manitoba and, therefore, that if the trial were to proceed in Manitoba, it would be easier to enforce a judgment there. Once again, the argument goes both ways as both parties are suing each other in damages and the result of the proceedings is still unknown. [ 55 ] Diva did not elaborate much on the jurisdiction of the Manitoba courts over Poppy’s violation of its Settlement Agreement obligations. Arguments mirroring those made here could be presented there.

Diva had the burden of proving that Manitoba was in a better position to hear the case and did not do so: [25] [ 51 ] Finding that there is a real and substantial connection does not automatically mean that a court will assume jurisdiction over a claim […].

Once jurisdiction is established, the party contesting jurisdiction may raise the doctrine of forum non conveniens , and attempt to “show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff […].” [ 52 ] The burden is on the defendant to demonstrate that a court of another jurisdiction has a real and substantial connection to the claim and that this alternative forum is “ clearly more appropriate” than the one where jurisdiction may be assumed […].

This threshold will be met where, based on its “characteristics”, the alternative forum “would be fairer and more efficient” for disposing of the litigation […]. It is not sufficient that the alternative forum merely be “comparable” to the forum where jurisdiction has been found to exist […].

Forum non conveniens is not concerned only with fairness to the party contesting jurisdiction; it is also concerned with efficiency and convenience for the proceedings themselves […]. [References omitted] [ 56 ] Diva did not show exceptional circumstances justifying a decision to decline jurisdiction because the authorities of Manitoba would be in a better position to decide the dispute. 5. LIS PENDENS [ 57 ]

Article 3137 C.C.Q. reads:

3137. On the application of a party, a Québec authority may stay its ruling on an action brought before it if another action, between the same parties, based on the same facts and having the same subject is pending before a foreign authority, provided that the latter action can result in a decision which may be recognized in Québec, or if such a decision has already been rendered by a foreign authority. 3137.

L’autorité québécoise, à la demande d’une partie, peut, quand une action est introduite devant elle, surseoir à statuer si une autre action entre les mêmes parties, fondée sur les mêmes faits et ayant le même objet, est déjà pendante devant une autorité étrangère, pourvu qu’elle puisse donner lieu à une décision pouvant être reconnue au Québec, ou si une telle décision a déjà été rendue par une autorité étrangère. [ 58 ] The two actions are between the same parties, but the facts and the objects are different. [ 59 ] As explained in Roberge v.

Bolduc , [26] to determine the “object” of an action, it is necessary to look at the nature of both the right and the remedy sought. It is not necessary for the two actions to seek precisely the same order, but rather that if the two proceedings have the same object, there would be res judicata if judgment is rendered in one of the two proceedings. [ 60 ] The Manitoba proceeding concerns Poppy’s fulfillment of its obligations, while the Québec proceeding concerns Diva’s fulfillment of its obligations. The facts differ accordingly. As was the case in Amiel Distributions Ltd. c.

Amana Co., L.P. , [27] while there are similarities between the two proceedings, they stem from different causes of action. [ 61 ] For these reasons, I would grant leave to appeal, allow the appeal, overturn the judgment rendered by the Superior Court and dismiss Diva’s Application to Dismiss the whole with legal costs in favor of Appellant both before this Court and the Superior Court. CLAUDINE ROY, J.A.