Anwar et al v. Fairfield Greenwich Limited et al

Filing 1048

DECLARATION of Professor Jonathan Harris in Support re: #775 FIRST MOTION to Certify Class.. Document filed by AXA Private Management, Harel Insurance Company Ltd., Harel Insurance Company, Ltd., Pacific West Health Medical Center Inc. Employees Retirement Trust(On behalf of Itself), Pacific West Health Medical Center Inc. Employees Retirement Trust(on Behalf of All Others Similarly Situated), Pacific West Health Medical Center, Inc. Employee's Retirement Trust, Securities & Investment Company Bahrain, St. Stephen's School. (Attachments: #1 Exhibit 1 through 3, #2 Exhibit 4 Part 1, #3 Exhibit 4 Part 2, #4 Exhibit 5, #5 Exhibit 6, #6 Exhibit 7 and 8, #7 Exhibit 9 through 11, #8 Exhibit 12 through 14, #9 Exhibit 15 through 21, #10 Exhibit 22 and 23, #11 Exhibit 24, #12 Exhibit 25 through 27, #13 Exhibit 28 through 32, #14 Exhibit 33, #15 Exhibit 34, #16 Exhibit 35, #17 Exhibit 36, #18 Exhibit 37 through 39, #19 Exhibit 40, #20 Exhibit 41 Part 1, #21 Exhibit 41 Part 2, #22 Exhibit 42 through 51, #23 Exhibit 52 through 65, #24 Exhibit 66 through 70, #25 Exhibit 71 through 74, #26 Exhibit 75 through 77, #27 Exhibit 78 through 81, #28 Exhibit 82, #29 Exhibit 83 Part 1, #30 Exhibit 83 Part 2, #31 Exhibit 84 and 85, #32 Exhibit 86 Part 1, #33 Exhibit 86 Part 2, #34 Exhibit 87 through 90, #35 Exhibit 91 Part 1, #36 Exhibit 91 Part 2, #37 Exhibit 92 through 103, #38 Exhibit 104 through 106, #39 Exhibit 107 and 108, #40 Exhibit 109 through 113)(Barrett, David)

EXHIBIT 40

DOMINION
LAW REPORTS
(FOURTH SERIES)
A WEEKLY SERIES OF REPORTS OF CASES FROM
ALL THE COURTS OF CANADA

Vol. 304
CITED 304 D.L.R. (4th)

CANADA LAW BOOK
A Division of The Cartwright Group Ltd.
240 Edward Street, Aurora, Ontario L4G 3S9
www.canadalawbook.ca

2009

SOCIETE CANADIENNE DES POSTES

v.

LEPINE

539

Canada Post Corporation v. Lepine;
Attorney General of Canada et aI., Interveners
[Indexed as: Societe canadienne des postes v. Lepine]
Court File No. 32299
2009 SCC 16
Supreme Court of Canada
McLachlin C.J.c., Binnie, LeBel, Deschamps,
Fish, Charron and Rothstein Jl,
Heard: November 17,2008
Judgment rendered: April 2, 2009
Conflict of laws - Foreign judgments - Jurisdiction of foreign court Recognition procedure - Parallel class proceedings commenced in different
provinces - Quebec court hearing application for recognition of foreign
judgment not entitled to take account of doctrine of forum non conveniens in
determining whether foreign authority had jurisdiction - Quebec residents
not bound by Ontario settlement agreement because Ontario notice procedure
contravened fundamental principles of procedure -. Quebec and Ontario
proceedings not giving rise to situation of lis pendens - Civil Code of Quebec,
S.Q. 1991, c. 64, art. 3155.
Civil procedure - Class actions - Procedure - Notices - Recognition
procedure - Parallel class proceedings commenced in different provinces Quebec court hearing application for recognition of foreign judgment not
entitled to take account of doctrine of forum non conveniens in determining
whether foreign authority had jurisdiction - Quebec residents not bound by
Ontario settlement agreement because Ontario notice procedure contravened
fundamental principles of procedure - Quebec and Ontario proceedings not
giving rise to situation of lis pendens - Civil Code of Quebec, S.Q. 1991, c. 64,
art. 3155.
Canada Post terminated its commitment to lifetime Internet Service only
one year after marketing the service. A customer in Quebec filed a motion for
authorization to institute a class action on behalf of every natural person residing in
Quebec who had purchased it. A class proceeding was certified in Ontario and led
to a settlement agreement. According to the Ontario judgment, the settlement
agreement was binding on every resident of Canada who had purchased the service
except those in British Columbia.
The next day the Quebec Superior Court authorized the Quebec class action.
Canada Post sought to have the Ontario judgment recognized under art. 3155 of the
Civil Code a/Quebec, S.Q. 1991, c. 64. The application was dismissed on the basis
that the notice of certification of the Ontario proceeding was inadequate in Quebec
and created confusion with the Quebec class action.

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304 D.L.R. (4th)

The Quebec Court of Appeal affirmed the judgment and held that the Ontario
court should have declined jurisdiction over Quebec residents by applying the doctrine of/arum non conveniens. It also held that the two class proceedings gave rise
to a situation of lis pendens since the Quebec proceeding was commenced first.
On further appeal to the Supreme Court of Canada, held, the appeal should be
dismissed.
The Court of Appeal added an irrelevant factor to its analysis of the foreign
court's jurisdiction in applying the doctrine of/arum non conveniens. In reviewing
an application for recognition of a foreign judgment, the Quebec court does not
have to consider how the court of another province should have exercised jurisdiction or declined to exercise jurisdiction. Enforcement by the Quebec court depends
on whether the foreign court had jurisdiction, not on how that jurisdiction was
exercised.
The application of the specific rules set out in arts. 3165 to 3168 of the Code are
generally sufficient to determine whether the foreign court had jurisdiction. The
Ontario Superior Court clearly had jurisdiction pursuant to art. 3168 since Canada
Post had its head office in Ontario. This connecting factor alone justified finding
that the Ontario court had jurisdiction.
The notices provided for in the judgment of the Ontario Superior Court of
Justice, when considered in the context in which they were published, contravened
the fundamental principles of procedure within the meaning of art. 3155, para. 3.
Clarity of the notice was particularly important given the parallel proceedings. The
Ontario notice was likely to confuse its intended recipients because it failed to prop-'
erly explain the impact of the judgment certifying the class proceeding on Quebec
members of the national class. It could have led those who read it in Quebec to conclude that it simply did not concern them.
The Quebec courts were also precluded from recognizing the Ontario judgment
on the basis of lis pendens pursuant to art. 3155, para. 4. A class action does not
exist only as of its filing date. The three identities required for lis pendens were
present at the date of the authorization application. The basic facts in support of
both proceedings were the same for Quebec residents, the object was the same and
the legal identity of the parties was established.
Cases referred to
Birdsall Inc. v. In Any Event Inc., [1999] RJ.Q. 1344, 89 A.C.W.S. (3d) 249 sub
nom. Stageline Mobile Stage Inc. v. In Any Event Inc. - refd to
Currie v. McDonald's Restaurants a/Canada Ltd. (2005),250 D.L.R. (4th) 224, 7
C.P.C. (6th) 60 sub nom. Parsons v. McDonald's Restaurants of Canada Ltd., 74
O.R. (3d) 321, 195 O.AC. 244, 137 A.C.W.S. (3d) 250 - refd to
Hocking v. Haziza, [2008] RJ.Q. 1189, 172 AC.W.S. (3d) 84 sub nom. HSBC Bank
Canada v. Hocking, 2008 QCCA 800, [2008] J.Q. No. 3423 [affd 172 AC.W.S.
(3d) 83, 2008 QCCA 801 sub nom. HSBC Bank Canada v. Hocking] - refd to
Hotte v. Servier Canada Inc., [1999] RJ.Q. 2598, 91 AC.W.S. (3d) 715 - refd to
Masson v. Thompson, [1993] RJ.Q. 69, 36 AC.W.S. (3d) 911consd

SOCIETE CANADIENNE DES POSTES V. LEPINE

541

Roberge v. Bolduc (1991),78 D.L.R. (4th) 666, [1991] 1 S.C.R. 374, 39 Q.A.c. 81,
124 N.R. 1 sub nom. Dorion v. Roberge, 25 A.C.W.S. (3d) 597 - refd to
Rocois Construction Inc. v. Quebec Ready Mix Inc., [1990] 2 S.c.R. 440, 31 Q.A.C.
241, 112 N.R. 241, sub nom. Rocois Construction Inc. v. Dominion Ready Mix
Inc., 22 A.C.W.S. (3d) 541 - refd to
Spar Aerospace Ltd. v. American Mobile Satellite Corp. (2002),220 D.L.R. (4th)
54, [2002] 4 S.C.R. 205, 28 C.P.c. (5th) 201, 297 N.R. 83, 118 A.C.W.S. (3d)
368, 2002 ~CC 78 - refd to
Statutes

referred

to

Civil Code of Quebec, S.Q. 1991, c. 64
arts. 3134-3154
arts. 3155-3168
Code of Civil Procedure, R.S.Q., c. C-25
Fair Trading Act, R.S.A. 2000, c. F-2
Authorities

referred

to

Black's Law Dictionary, 8th ed. (St. Paul, Minn.: ThomsonlWest, 2004)
Glenn, H. Patrick, "Droit international prive", in La reforme du Code civil, vol. 3,
Priorites et hypotheques, preuve et prescription, publicite des droits, droit international prive, dispositions transitoires, Textes reunis par le Barreau du Quebec
et la Chambre des notaires du Quebec (Sainte-Foy, Que.: Presses de l'Universite
Laval, 1993)
Goldstein, Gerard, and Ethel Groffier, Droit international prive, vol. J, Theorie
Generate (Cowansville, Que.: Editions Yvon Blais, 1998)
Le Grand Robert de la langue francoise, 2nd ed. (Paris: Le Robert, 2001)
Reid, Hubert, Dictionnaire de droit quebecois et canadien, 3rd ed. (Montreal:
Wilson & Lafleur, 2004)
Royer, Jean-Claude, La preuve civile, 4th ed. (Cowansville, Que.: Editions Y. Blais,
2008)
Saumier, Genevieve, "The Recognition of Foreign Judgments in Quebec - The
Mirror Crack'd?" (2002), 81 Can. Bar Rev. 677
Talpis, Jeffrey A., and Shelley L. Kath, "If I am from Grand-Mere, Why Am I Being
Sued in Texas?": Responding to Inappropriate Foreign Jurisdiction in QuebecUnited States Crossborder Litigation (Montreal: Editions Themis, 2001)

APPEAL
from a judgment of the Quebec Court of Appeal, [2007]
R.J.Q. 1920, 166 A.C.W.S. (3d) 632, 2007 QCCA 1092, [2007]
SOQUIJ AZ-50446058, 2007 CarswellQue 13496, [2007] Q.J. No.
8498, dismissing an appeal from a judgment of Baker J., J .E. 20051631, [2005] SOQUIJ AZ-50325631, 2005 CanLII 26419, 2005
CarswellQue 5457, [2005] Q.J. No. 9806, authorizing a class action
in Quebec.
Serge Gaudet, Gary D.D. Morrison and Frederic Masse, for
l'l',",UUlU, Canada
~L '--VIp la.UVl1.
annellant ,--a.l a. a. Post Cornoration
Francois Lebeau and Jacques Larochelle, for respondent, Michel
Lepine.

542

DOMINION LAW REpORTS

304 D.L.R. (4th)

Alain Prefontaine, for intervener, Attorney General of Canada.
No one appearing for intervener, Cybersurf Corp.
The judgment of the court was delivered by
LEBELJ.:-

l. Introduction
A. Nature of the Appeal
[1] In September 2000, the appellant, the Canada Post Corporation
("Corporation"), began marketing a lifetime Internet service in
Canada. Many consumers purchased the service. However, the
Corporation terminated its lifetime commitment in September 200 1
and discontinued the service, which led to complaints and various
proceedings. There was a settlement in Ontario after the Ontario
Superior Court of Justice had certified a class proceeding and
approved a settlement agreement with the Corporation. A class
action had also been instituted in Quebec. The Corporation sought to
have the Ontario judgment recognized under art. 3155 of the Civil
Code of Quebec, S.Q. 1991, c. 64 ("C.c.Q."), and to have the
Quebec proceedings dismissed, but the Quebec Superior Court dismissed its application. The Quebec Court of Appeal affirmed that
judgment. For reasons that differ in part from those given by the
Court of Appeal, I would dismiss this appeal, which concerns the
conditions under the Civil Code of Quebec for recognizing a judgment rendered outside Quebec. The appeal also raises issues
concerning the management of parallel class actions instituted in
different provinces.
B. Origin of the Case
[2] The events on which this case is based began in September
2000, when the Corporation offered its customers a lifetime Internet
access package using software designed by the intervener Cybersurf
Corp., an Internet service provider. The software came on a
CD-ROM that was sold for $9.95. In exchange for free service, purchasers agreed to have advertising transmitted to their computers.
According to the Corporation, it sold 146,736 CD-ROMs across
Canada. For reasons not specified by the parties, the Corporation
discontinued the lifetime Internet service on September 15, 200 1.
Some consumers were upset, and their reactions led, inter alia, to the
proceedings now before this Court.

SOCIETE CANADIENNE DES paSTES V. LEPINE

543

[3] In 2001, the Alberta government complained to the
Corporation under the Fair Trading Act, R.S.A. 2000, c. F-2. Then,
on February 6, 2002, Michel Lepine, the respondent in this appeal,
filed a motion in the Quebec Superior Court for authorization to
institute a class action under Quebec's Code of Civil Procedure,
R.S.Q., c. C-25. He sought to institute the action against the
Corporation on behalf of every natural person residing in Quebec
who had purchased the Corporation's Internet package. On March 28,
2002, Paul McArthur also commenced a class proceeding against the
Corporation in the Ontario Superior Court of Justice. He sought
leave to represent everyone who had purchased the Corporation's
CD-ROM and Internet service, except Quebec residents. Finally, on
May 7, 2002, John Chen commenced a class proceeding in the
British Columbia Supreme Court on behalf of residents of that
province who had purchased the CD-ROM distributed by the
Corporation. A settlement was reached in Alberta in December 2002,
and the Corporation undertook to refund the purchase price of
the CD-ROM to Canadian consumers who returned the CD-ROM
to it.
[4] Negotiations were conducted to settle the class proceedings
under way in Quebec, Ontario and British Columbia. The
Corporation offered the same settlement as in Alberta, which it later
enhanced by offering three months of free Internet access.
According to information provided by the parties, the applicants for
certification of the class proceedings in British Columbia and
Ontario accepted the Corporation's offers. The applicant for authorization in the Quebec action, Mr. Lepine, rejected them.
[5] The application for authorization of the Quebec class action,
which the Corporation contested vigorously, was still pending at the
time of these negotiations. On June 18, 2003, the Quebec Superior
Court decided to hear the application on November 5, 6 and 7 of that
year.
[6] In the meantime, in Ontario in early July 2003, the parties to
the Ontario and British Columbia proceedings entered into a settlement agreement with the appellant based on the offer they had
accepted. The agreement created two classes of claimants. The first
was limited to British Columbia residents. For the purposes of the
Ontario proceeding, the second class included residents of every

544

DOMINION LAW REpORTS

304 D.L.R. (4th)

province of Canada except British Columbia, as it no longer
excluded Quebec residents despite the fact that the respondent,
Michel Lepine, was proceeding with his application for authorization to institute a class action in Quebec and had rejected the
proposed settlement. To give effect to the settlement, the Ontario
application for certification was amended on November 19, 2003 to
include Quebec residents in the class.
[7] Beginning at the time of negotiation of the settlement, various
proceedings that had contradictory purposes and effects were commenced in the Ontario Superior Court of Justice and the Quebec
Superior Court. When informed of the settlement with the
Corporation, Mr. Lepine sought unsuccessfully to obtain safeguard
orders from the Quebec Superior Court as well as a declaration that
the Ontario agreement could not be set up against Quebec residents.
His motion was heard on July 22, 2003, but the judge merely ordered
the Corporation to give Quebec counsel details related to the
applications for approval in Ontario and British Columbia.
[8] Nevertheless, the Quebec Superior Court heard Mr. Lepine's
application for authorization on the scheduled dates, November 5 to
7, 2003, despite attempts by the Corporation to obtain a stay of the
hearing and the judgment. The judge reserved his decision on
November 7.
[9] The Ontario proceeding also continued. The Superior Court of
Justice heard the application for certification of the class proceeding,
to which the application for approval of the settlement agreement
had now been added. Mr. Lepine's Quebec counsel did not appear in
the Ontario proceeding. However, he sent the judge hearing the
application for certification and approval a letter asking him to
decline jurisdiction over Quebec residents for reasons he set out in
detail. On December 22, 2003, the Superior Court of Justice certified
the class proceeding and approved the settlement. It excluded British
Columbia residents but not Quebec residents from the class. It did
not comment on Mr. Lepine's request, but referred to that request in
the following terms in its recitals: " ... and upon being advised of the
situation in the Province of Quebec and the correspondence
forwarded to this Court by Quebec counsel, Francois LeBeau .... "
Thus, the Ontario Superior Court of Justice approved the settlement
reached with the Corporation without reservation and ordered that

SOCIETE CANADIENNE DES POSTES

v.

LEPINE

545

notices of the judgment be published accordingly. The following are
the most important heads of relief in its order:
1. THIS COURT ORDERS AND ADJUDGES that for purposes of the
settlement, as set out in the Settlement Agreement attached as Schedule "A"
("the Settlement Agreement"), the within action is certified as a Class
Proceeding pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6.
3. THIS COURT ORDERS AND ADJUDGES that, as set out in the
Settlement Agreement, the group of persons who are members of the Ontario
Class be:
"Any person in Canada, not a resident of the Province of British
Columbia, who purchased a CD-Rom through any Canada Post outlet at
a retail price of $9.95, exclusive of applicable taxes, the packaging of
which displayed the words "free internet for life", on or after September 27,
2000."
4. THIS COURT ORDERS AND ADJUDGES that the claims asserted on
behalf of the Class are for breach of contract and misrepresentation and the
relief sought is damages, including punitive, aggravated and exemplary
damages, interest and costs as set out in the Amended Statement of Claim.
10. THIS COURT ORDERS AND ADJUDGES that any Class Member
who does not opt-out within the time provided and in the manner described in
the Settlement Agreement is bound by the Settlement Agreement and this
Order and is hereby enjoined from pursuing any claims covered by the
Settlement Agreement against the Defendants.

On the next day, December 23, 2003, the Quebec Superior Court
rendered a judgment authorizing the institution of a class action
against the Corporation on behalf of a group limited to residents of
Quebec.
[10] Finally, on April 7, 2004, the British Columbia Supreme
Court approved the settlement for the class of British Columbia residents. The settlement with the Corporation had accordingly been
completed.
[11] In the meantime, the judgments rendered by the Ontario
Superior Court of Justice and the Quebec Superior Court had created
an unavoidable legal conflict. On the one hand, a class action against
the Corporation was continuing in the Quebec Superior Court. On
the other hand, the Corporation had obtained a judgment from the
Ontario Superior Court of Justice declaring that the claims against it
had been settled, including the claims of Quebec residents. To break:

546

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304 D.L.R. (4th)

the impasse, the Corporation applied to the Quebec Superior Court
in June 2004 to have the judgment of the Ontario Superior Court of
Justice recognized and declared enforceable. To this date, more than
four years later, the Ontario judgment has not yet been recognized in
Quebec, and the class action authorized by the Quebec Superior
Court has not yet been heard.
II. Judicial History
A. Quebec Superior Court, [2005] Q.J. No. 9806 (QL)
[12] On July 20, 2005, Baker J. of the Quebec Superior Court dismissed the Corporation's application for recognition of the judgment
of the Ontario Superior Court of Justice on the basis that the application did not meet the requirements of art. 3155 C.c.Q. Baker J.
based his decision to refuse recognition on the ground of contravention of the fundamental principles of procedure, which is provided
for in art. 3155(3) c.c.Q. In his view, the notice of certification of
the Ontario proceeding was inadequate in Quebec and created confusion with the class action under way in Quebec and the notices
given in that action.
B. Quebec Court of Appeal (Delisle, Pelletier and Rayle JJ.A.), 2007
QCCA 1092 (CanLII), [2007] R.J.Q. 1920, 166 A.C. W.S. (3d) 632
[13] In a unanimous decision written by Rayle J.A., the Quebec
Court of Appeal dismissed the Corporation's appeal from the
Superior Court's judgment. Rayle J.A. found that there were three
reasons to refuse recognition. She conceded that the Ontario
Superior Court of Justice had jurisdiction over Mr. McArthur's
application. But in her view, that court should have declined jurisdiction over Quebec residents by applying the doctrine offorum non
conveniens. Next, she agreed with the trial judge that the confusion
created by the notices concerning the class proceeding certified in
Ontario had resulted in a contravention of the fundamental principles of procedure within the meaning of art. 3155(3) c.c.Q. Finally,
the Court of Appeal found that the two class proceedings gave rise
to a situation of lis pendens. Because the Quebec proceeding had
been commenced first, art. 3155(4) C.c.Q. precluded the Quebec
courts from recognizing the Ontario judgment. The Court of Appeal
did not rule on the issue of violation of international public order
under art. 3155(5) c.c.Q. However, Rayle J.A. stated that she was
puzzled by the decision of the Ontario Superior Court of Justice

SOCIETE CANADIENNE DES POSTES

v.

LEPINE

547

judge to exclude British Columbia residents but not Quebec
claimants from the class. She wondered why the Ontario court had
not adhered to the principles of interprovincial comity in relation to
the Quebec court, which had been the first one seised of the dispute.
The Corporation appealed that judgment to this Court, asking that it
be reversed.
III. Analysis
A. Issues
(1) Nature of the Issues
[14] This appeal concerns the interpretation and application of
art. 3155 c.c.Q. with regard to the recognition of a judgment
rendered in a class proceeding in Ontario. I prefer to characterize
that judgment as an external rather than a foreign one, despite the
language used in the Civil Code of Quebec. In essence, the dispute
between the parties raises three issues. First, can a Quebec court
hearing an application for recognition of an external judgment take
account of the doctrine of forum non conveniens? Next, did the
Ontario Superior Court of Justice adhere to the fundamental principles of procedure? If there were defects, did they entail a
contravention of the fundamental principles of civil procedure
within the meaning of art. 3155(3) c.c.Q.? Finally, did the application for authorization in Quebec and the application for certification
in Ontario give rise to a situation of lis pendens?
[15] The discussion of these issues will also require some comment on the issue of interprovincial judicial comity in the conduct of
interprovincial class actions. Although the outcome of this appeal
does not depend on the resolution of this last issue, it is one that now
seems likely to affect the conduct of class actions involving two or
more Canadian provinces, as well as relations between the superior
courts of different provinces. It therefore merits some thought, as
can be seen from the problems or reactions it appears to have
provoked in this case.
(2) The Parties' Positions
[16] The appellant submits that none of the provisions of art. 3155
C.C.Q. stood in the way of its application for recognition in Quebec
and that the Quebec Superior Court should therefore have recognized the judgment of the Ontario Superior Court of Justice.
According to the Corporation, the Quebec court could not raise the

548

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304 D.L.R. (4th)

application of the doctrine of forum non conveniens by the Ontario
court as an issue. The Corporation adds that the notices given in
Quebec were consistent with the fundamental principles of procedure. Finally, it denies that the conditions for lis pendens were met.
[17] The respondent relies primarily on the judgment of the
Quebec Court of Appeal on the three issues being discussed. He also
alleges that the Ontario proceedings were conducted in a manner
inconsistent with international public order, which the appellant disputes. This argument need not be considered in the circumstances of
this case. Finally, the Attorney General of Canada has intervened on
the issue of the application of the doctrine of forum non conveniens
in the procedure for the recognition of judgments rendered in the
provinces of Canada. Before considering these questions, I believe it
will be helpful to summarize the rules governing the recognition of
external judgments by Quebec courts under the Civil Code of Quebec.
B. Legal Framework for the Judicial Recognition of External
Judgments
[18] The rules on the international jurisdiction of Quebec
authorities and the recognition of foreign or external judgments are
found, respectively, in Title Three (arts. 3134 to 3154) and Title Four
(arts. 3155 to 3168) of Book Ten of the Civil Code of Quebec on
private international law. The two titles are closely related. I will
come back to this in the course of my analysis.
[19] In substance, Title Three sets out general rules and specific
rules for identifying the connecting factors that will give Quebec
authorities jurisdiction in an international context. Where there are
no specific rules, whether a Quebec authority has jurisdiction will
depend on whether the defendant is domiciled in Quebec (art. 3134).
As a whole, these rules ensure compliance with the basic requirement that there be a real and substantial connection between the
Quebec court and the dispute, as this Court noted in Spar Aerospace
Ltd. v. American Mobile Satellite Corp., 2002 SCC 78, [2002] 4
S.C.R. 205, 220 D.L.R. (4th) 54, at paras. 55-56.
[20] Other provisions of Title Three supplement these rules by
giving the Quebec court a discretion to either intervene or decline to
do so in a dispute. Article 3135 is particularly important, as it confirms the incorporation of the doctrine of forum non conveniens into
private international law in Quebec. Under this provision, a Quebec

SOCIETE CANADIENNE DES paSTES v. LEPINE

549

court may decline to hear a case over which it has jurisdiction if it
considers that the authorities of another country are in a better
position to decide.
[21] Title Four concerns foreign judgments or judgments
rendered outside Quebec that are brought before the courts of that
province. It establishes the conditions for the recognition and
enforcement of such judgments.
[22] In accordance with the evolution of private international law,
which seeks to facilitate the free flow of international trade, the basic
principle laid down in art. 3155 C.C.Q. for all the rules in Title Four
is that any decision rendered by a foreign authority must be recognized unless an exception applies. The exceptions are limited: the
decision maker had no jurisdiction, the decision is not final or
enforceable, there has been a contravention of the fundamental principles of procedure, lis pendens applies, the outcome is inconsistent
with international public order, and the judgment relates to taxation.
This legislative intent is clear from the wording of art. 3155:
3155. A Quebec authority recognizes and, where applicable, declares
enforceable any decision rendered outside Quebec except in the following cases:
(1) the authority of the country where the decision was rendered had no
jurisdiction under the provisions of this Title;
(2) the decision is subject to ordinary remedy or is not final or enforceable
at the place where it was rendered;
(3) the decision was rendered in contravention of the fundamental principles
of procedure;
(4) a dispute between the same parties, based on the same facts and having
the same object has given rise to a decision rendered in Quebec, whether it has
acquired the authority of a final judgment (res judicata) or not, or is pending
before a Quebec authority, in first instance, or has been decided in a third country and the decision meets the necessary conditions for recognition in Quebec;
(5) the outcome of a foreign decision is manifestly inconsistent with public
order as understood in international relations;
(6) the decision enforces obligations arising from the taxation laws of a foreign country.

[23] Article 3158 limits the scope of a Quebec court's power to
review a foreign decision. The court must confine itself to considering whether the requirements for recognizing the decision have
been met. It cannot review the merits of the case or retry the case.
Article 3158 expressly prohibits this:

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304 D.L.R. (4th)

3158. A Quebec authority confines itself to verifying whether the decision
in respect of which recognition or enforcement is sought meets the requirements prescribed in this Title, without entering into any examination of the
merits of the decision.

[24] However favourable these principles may be to the recognition of foreign decisions, it must still be found that none of the
exceptions provided for in art. 3155 C.C.Q. apply. In particular, as
art. 3155(1) provides, the Quebec court must find that the court of
the country where the judgment was rendered had jurisdiction over
the matter. In this regard, Title Four also contains arts. 3164 to 3168,
which set out rules the Quebec court is to apply to determine
whether the foreign authority had jurisdiction. The main analytical
tool for art. 3164 relates to the technique of referring to the rules in
Title Three on establishing the jurisdiction of Quebec authorities.
[25] This provision creates a mirror effect. The foreign authority
is deemed to have jurisdiction if the Quebec court would, by
applying its own rules, have accepted jurisdiction in the same situation (G. Goldstein and E. Groffier, Droit international prive, vol. I,
Theorie generale (1998), at p. 416). To this principle, art. 3164
C.C. Q. adds the requirement of a substantial connection between the
dispute and the foreign authority seised of the case:
3164. The jurisdiction of foreign authorities is established in accordance
with the rules on jurisdiction applicable to Quebec authorities under Title
Three of this Book, to the extent that the dispute is substantially connected
with the country whose authority is seised of the case.

[26] Articles 3165 to 3168 then set out more specific rules applicable to a variety of legal situations. Only art. 3168 is important for
the purposes of this case. It identifies the cases in which a Quebec
court will recognize a foreign authority's jurisdiction in personal
actions of a patrimonial nature. This provision applies to the matters
in dispute here. It provides for six situations in which a foreign
authority's jurisdiction will be recognized in such actions:
3168. In personal actions of a patrimonial nature; the jurisdiction of a foreign authority is recognized only in the following cases:
(1) the defendant was domiciled in the country where the decision was
rendered;
(2) the defendant possessed an establishment in the country where the decision was rendered and the dispute relates to its activities in that country;
(3) a prejudice was suffered in the country where the decision was rendered
and it resulted from a fault which was committed in that country or from an
injurious act which took place in that country;

SOCIETE CANADIENNE DES paSTES

v. LEPINE

551

(4) the obligations arising from a contract were to be performed in that
country;

(5) the parties have submitted to the foreign authority disputes which have
arisen or which may arise between them in respect of a specific legal relationship; however, renunciation by a consumer or a worker of the jurisdiction of
the authority of his place of domicile may not be set up against him;
(6) the defendant has recognized the jurisdiction of the foreign authority.

[27] Because of the way these rules of recognition are set out in
the legislation, a problem rises that is of particular significance for
the analysis of the instant case. Do the jurisdictional rules in
arts. 3164 to 3168 incorporate, by reference to Title Three, the
doctrine oiforum non conveniens? Do they thus give a Quebec court
the power, even if the foreign authority's jurisdiction has been established, to determine whether the court that rendered the decision
should have applied the doctrine of forum non conveniens? Can a
Quebec court refuse to recognize a judgment rendered outside
Quebec because, in its opinion, the foreign court should, pursuant to
that doctrine, have declined jurisdiction over the case?
C. Mirror Effect and Application of the Doctrine of Forum Non
Conveniens
[28] The question of the mirror effect and its scope has been a
problem in Quebec private international law since the Civil Code of
Quebec came into force. In art. 3164 C.c.Q., the legislature has not
been as clear as might be hoped about the scope of its reference to
the provisions of Title Three of Book Ten (see, for example,
Goldstein and Groffier, at p. 416). This drafting problem has led
some Quebec authors and judges to support what is known as the
"little mirror" theory. This theory seems to be based on a literal
interpretation of the reference in art. 3164 to the general provisions
of Title Three on determining whether a Quebec authority has jurisdiction and on the exercise of such jurisdiction. Under that
interpretation, because the reference does not exclude any of Title
Three's provisions, it necessarily encompasses the doctrine offorum
non conveniens, which is accepted in Quebec private international
law under art. 3135 c.c.Q.
[29] Thus, according to the theory, the possibility of applying the
doctrine of forum non conveniens, when considering a motion for
judicial recognition of a foreign or external judgment, supplements
the provisions on establishment of the foreign court's jurisdiction by

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enabling the Quebec authority to more effectively ensure compliance with the basic requirement under art. 3164 C.C.Q. of a
substantial connection between the dispute and the country whose
authority is seised of the case. Moreover, this interpretation means
that, when considering whether a foreign court has jurisdiction over
an action of a patrimonial nature, the Quebec authority will not limit
itself to determining whether the application for recognition corresponds to one of the situations provided for in art. 3168 C.C.Q. The
Quebec court can also consider how the foreign authority should
have applied the doctrine oi forum non conveniens to decide whether
or not to decline jurisdiction.
[30] Goldstein and Groffier, who support the little mirror theory,
stress the importance they attach to the wording of art. 3164 C.C. Q.,
which does not limit the scope of the reference to the general provisions of Title Three (at p. 417):
[TRANSLATION] It must first be noted that the jurisdiction of Quebec
authorities that is extended to foreign authorities is logically determined not
only through specific connecting principles, but also through the general provisions such as those on forum non conveniens, forum conveniens and
exclusive jurisdiction. In referring to the Quebec rules on jurisdiction,
art. 3164 C.C.Q. does not limit them to the specific rules (arts. 3141 to 3154
C.C.Q.) and therefore refers implicitly to arts. 3134 to 3140 C.C.Q. as well.
The latter provisions considerably alter the specific rules on jurisdiction in
Quebec by giving the courts a broad discretion. It should therefore be accepted
that foreign authorities can have the same freedom to exclude heads of
jurisdiction that the Quebec courts would have excluded. As Professor Glenn
points out:
The foreign authority's jurisdiction is assessed not broadly, in light of the
connections accepted under the various heads of jurisdiction, but in light
of the specific circumstances of each case. The question is whether the
Quebec authority would have agreed to exercise its jurisdiction in such
circumstances. The mirror principle becomes the principle of a "little
mirror" that reflects the specific circumstances of the case in light of the
general provisions. (Emphasis in original)

These authors add that the Quebec court may therefore apply the
doctrine of forum non conveniens to determine how, in its view, the
foreign court should have applied that very doctrine (p. 417; along
the same lines, see also: H.P. Glenn, "Droit international prive", in
La reforme du Code civil (1993), vol. 3, 669, Nos. 117-19, at
pp.770-72).

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[31] The Quebec Court of Appeal adopted this approach in the
instant case. It recognized that the Ontario Superior Court of Justice
had jurisdiction over the subject matter in the usual sense of the term
(at para. 64). However, because it found that it had to consider the
jurisdiction of the Ontario court through the prism of the reciprocity
required by the little mirror theory, it concluded that the Superior
Court of Justice should have applied the doctrine of forum non conveniens and should, on that basis, have excluded Quebec residents
from the class in the class proceeding it was certifying (paras. 64-69).
The Superior Court of Justice should have recognized that it was not
the most appropriate forum with respect to this class of claimants,
and thus deferred to the jurisdiction of the Quebec Superior Court.
[32] However, some Quebec authors reject the application of
forum non conveniens in the recognition of foreign or external judgments. They would limit the effect of the reference to Title Three in
art. 3164 by excluding forum non conveniens from it. For example,
in a study on the rules for recognizing and enforcing foreign or
external judgments in Quebec, Professor Genevieve Saumier is
highly critical of the application of this doctrine ("The Recognition
of Foreign Judgments in Quebec - The Mirror Crack'd?" (2002),
81 Can. Bar Rev. 677). According to her, this interpretation of
art. 3164 C.C. Q. is not justified despite the very general language
used in drafting that provision. In her opinion, to apply the doctrine
of forum non conveniens when considering an application for recognition confuses the establishment of the foreign court's jurisdiction
as such with the exercise of that jurisdiction (pp. 691-92). Thus the
literal interpretation of art. 3164 C.C. Q. cannot be reconciled with
the general principle in art. 3155 C.C.Q. that a foreign or external
judgment should be recognized once the originating court has been
shown to have jurisdiction in the strict sense, and it is inconsistent
with the fact that this principle remains the cornerstone of the system of recognition of foreign judgments established by the Civil
Code of Quebec. The addition of a mechanism based on the discretion of the court to which the application has been made, one that
depends in all cases on the existence of a specific factual context, is
inconsistent with this principle (pp. 693-94).
[33] Professor Jeffrey Talpis refers to a few cases in which
Quebec courts have favoured the application of the doctrine of

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forum non conveniens in the recognition and enforcement of foreign
decisions. However, he expresses serious reservations about the
soundness of this approach, which he considers incompatible with
the legal framework for the recognition of foreign or external judgments set out in the Civil Code of Quebec:
Despite the fact that some support obviously exists in jurisprudence and
doctrine for the "little mirror" approach, it is somewhat distressing to note that
a reviewing court can decide that the originating court should have declined
jurisdiction onforum non conveniens grounds and that the first court's failure
to do so may be justification for denial of recognition of the resulting judgment
is rather distressing. To deny recognition for failure to do something that is
only discretionary in the first court would seem to contradict the very foundations of the exceptional character of the forum non conveniens doctrine in
Quebec. This "second guess" approach is even more disturbing in an
inter-provincial context. Be that as it may, one cannot deny that application of
the two grounds does provide a good antidote to inappropriate foreign forum
shopping.

("If I am from Grand-Mere, Why Am I Being Sued in Texas?": Responding to
Inappropriate Foreign Jurisdiction in Quebec-United States Crossborder
Litigation (2001), at p. 109; see also the critical comments of Bich J.A. of the
Quebec Court of Appeal in Hocking v. Haziza, 2008 QCCA 800, [2008]
R.J.Q. 1189, at paras. 174 et seq.)

[34] In my view, these reservations about extending the application of the doctrine of forum non conveniens to the recognition of
foreign or external judgments in Quebec are justified. I do not deny
that the application of this doctrine finds support, at first glance, in
the very broad wording of the reference to Title Three in art. 3164
c.c.Q. However, such an interpretation disregards the main principle
underlying the legal framework for the recognition and enforcement
of foreign or external judgments set out in the Civil Code of Quebec.
Enforcement by the Quebec court depends on whether the foreign
court had jurisdiction, not on how that jurisdiction was exercised,
apart from the exceptions provided for in the Civil Code of Quebec.
To apply forum non conveniens in this context would be to overlook
the basic distinction between the establishment of jurisdiction as
such and the exercise of jurisdiction. In this respect, I believe that it
will be helpful to repeat the quotation of the first paragraph of
art. 3155 of the Civil Code of Quebec, which sets out the following
exception to the obligation to recognize a foreign decision:

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555

... the authority of the country where the decision was rendered had no
jurisdiction ....

The words chosen by the legislature specify the nature of the analysis the court hearing the application for recognition must conduct.
The court must ask whether the foreign authority had jurisdiction,
but is not to enquire into how that jurisdiction was supposed to be
exercised.
[35] Furthermore, this distinction between jurisdiction and the
exercise thereof is recognized in the wording of the provisions of the
Civil Code of Quebec on the jurisdiction of Quebec authorities.
Article 3135 C.C. Q. provides that a Quebec court may refuse to
exercise jurisdiction it has under the relevant connecting rules.
However, in reviewing an application for recognition of a foreign or
external judgment, the Quebec court does not have to consider how
the court of another province or of a foreign country should have
exercised its jurisdiction or, in particular, how it might have exercised a discretion to decline jurisdiction over the case or suspend its
intervention.
[36] Article 3164 C.C.Q. provides that a substantial connection
between the dispute and the originating court is a fundamental condition for the recognition of a judgment in Quebec. Articles 3165 to
3168 then set out, in more specific terms, connecting factors to be
used to determine whether, in certain situations, a sufficient connection exists between the dispute and the foreign authority. The
application of specific rules, such as those in art. 3168 respecting
personal actions of a patrimonial nature, will generally suffice to
determine whether the foreign court had jurisdiction. However, it
may be necessary in considering a complex legal situation involving
two or more parties located in different parts of the world to apply
the general principle in art. 3164 in order to establish jurisdiction
and have recourse to, for example, the forum of necessity. The Court
of Appeal added an irrelevant factor to the analysis of the foreign
court's jurisdiction: the doctrine of forum non conveniens. This
approach introduces a degree of instability and unpredictability that
is inconsistent with the standpoint generally favourable to the recognition of foreign or external judgments that is evident in the
provisions of the Civil Code. It is hardly consistent with the principles
of international comity and the objectives of facilitating international

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and interprovincial relations that underlie the Civil Code's provisions on the recognition of foreign judgments. In sum, even when it
is applying the general rule in art. 3164, the court hearing the application for recognition cannot rely on a doctrine that is incompatible
with the recognition procedure.
[37] It would accordingly have been sufficient had the Quebec
authorities asked whether the Ontario Superior Court of Justice had
jurisdiction, in the strict sense, over the dispute. If it did, their next
step would have been to determine whether the respondent,
Mr. Lepine, had established that there were other obstacles to the
recognition of the Ontario judgment, as indeed the Quebec Court of
Appeal found that he had.

D. Jurisdiction of the Ontario Superior Court of Justice
[38] There is no doubt that the Ontario Superior Court of Justice
had jurisdiction pursuant to art. 3168 C.C.Q., since the Corporation,
the defendant to the action, had its head office in Ontario. This connecting factor in itself justified finding that the Ontario court had
jurisdiction. The question whether there were obstacles to the recognition of the judgment is more problematic, especially given the
allegations that it had been rendered in contravention of the fundamental principles of procedure and that the motion for authorization
made in Quebec and the parallel application for certification made in
Ontario had given rise to a situation of lis pendens.

E. Issue of Notices to the Quebec Members of the National Class
[39] One of the main arguments made by the respondent in contesting the application for recognition relates to the issue of
contravention
of the fundamental principles of civil procedure.
Under art. 3155(3) c.c.Q., such a contravention precludes enforcement. The Court of Appeal accepted this argument, among others, to
justify dismissing the application for recognition.
[40] The issue of the application of art. 3155(3) arises in relation
to the notices given pursuant to the Ontario Superior Court of
Justice's judgment certifying the class proceeding. The respondent
submits that the very content of the notices contravened the fundamental principles of procedure. In his opinion, the notices published
in Quebec newspapers were insufficient and confusing. Their wording did not enable class members residing in Quebec to understand
the impact of the Ontario judgment on their rights and on the

SOCIETE CANADIENNE DES POSTES V. LEPINE

557

authorization of the class action by the Quebec Superior Court on
December 23,2003.
[41] This argument does not amount to a request to review the
Ontario Superior Court of Justice's decision. The judge hearing the
application for recognition does not examine the merits of the judgment (art. 3158 c.c.Q.). However, at the stage of recognition and,
therefore, of enforcement of the judgment, he or she must consider
whether the procedure leading up to the decision and the procedure
for giving effect to it are consistent with the fundamental principles
of procedure. The judge hearing the application is concerned not
only with the procedure prior to the judgment but also with the procedural consequences of the judgment. This approach is particularly
important in the case of class actions.
[42] A class action takes place outside the framework of the
traditional duel between a single plaintiff and a single defendant. In
many class proceedings, the representative acts on behalf of a very
large class. The decision that is made not only affects the representative and the defendants, but may also affect all claimants in the
classes covered by the action. For this reason, adequate information
is necessary to satisfy the requirement that individual rights be safeguarded in a class proceeding. The notice procedure is indispensable
in that it informs members about how the judgment authorizing the
class action or certifying the class proceeding affects them, about the
rights - in particular the possibility of opting out of the class
action - they have under the judgment, and sometimes, as here,
about a settlement in the case. In the instant case, the question raised
by the respondent relates not to the Ontario statute but to the way it
was applied by the Ontario Superior Court of Justice in a case in
which that court knew that a parallel proceeding was under way in
Quebec. Were the notices provided for in the Ontario court's judgment therefore consistent, in the context in which they were
published, with the fundamental principles of procedure applicable
to class actions?
[43] The Ontario Court of Appeal stressed the importance of
notice to members in a case involving an application for recognition
of a judgment rendered in Illinois, in the United States. It emphasized the vital importance of clear notices and an adequate mode of
publication (Currie v. McDonald's Restaurants of Canada Ltd.

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(2005), 74 O.R. (3d) 321, 250 D.L.R. (4th) 224, at paras. 38-40). In
a class action, it is important to be able to convey the necessary
information to members. Although it does not have to be shown that
each member was actually informed, the way the notice procedure is
designed must make it likely that the information will reach the
intended recipients. The wording of the notice must take account of
the context in which it will be published and, in particular, the situation of the recipients. In some situations, it may be necessary to
word the notice more precisely or provide more complete information to enable the members of the class to fully understand how the
action affects their rights. These requirements constitute a fundamental principle of procedure in the class action context. In light of
the requirement of comity between courts of the various provinces
of Canada, they are no less compelling in a case concerning recognition of a judgment from within Canada. Compliance with these
requirements constitutes an expression of such comity and a condition for preserving it within the Canadian legal space.
[44] In the context of the instant case, I agree with the opinion
expressed by the Quebec Court of Appeal and with the findings of
the trial judge on the notice issue. The procedure adopted in the
Ontario judgment certifying the class proceeding for the purpose of
notifying Quebec members of the national class established in the
judgment contravened the fundamental principles of procedure
within the meaning of art. 3155(3) C.C.Q., and enforcement was
therefore precluded.
[45] The clarity of the notice to members was particularly important in a context in which, to the knowledge of all those involved,
parallel class proceedings had been commenced in Quebec and in
Ontario. The notice published in Quebec pursuant to the Ontario
judgment did not take this particular circumstance into account.
Those who prepared it did not concern themselves with the situation
resulting from the existence of a parallel class proceeding in Quebec
and the publication of a notice pursuant to the Quebec Superior
Court's judgment authorizing the class action. The notice made it
look like the Ontario proceeding was the only one. Nor, even though
Quebec residents were also a group under the Quebec class action,
did the notice clearly state that the settlement applied to them. In this
regard, the Quebec Superior Court carefully described the problems

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559

that had resulted from the procedure adopted to give effect to the
Ontario court's judgment certifying the class proceeding in the context in which that procedure was conducted. Thus, on February 21,
2004, the designated representative in the Quebec class action
published a notice of the authorization to institute a class action on
behalf of a group that was limited to Quebec residents. The notice
indicated that the members could request exclusion on or before
April 21, 2004. In the Ontario class proceeding, the notice published
on April 7, 2004, that is, shortly before the expiry of the time limit
for requesting exclusion from the Quebec action, stated that a settlement had been reached in class proceedings commenced in Ontario
and British Columbia but did not mention that the settlement also
applied to Quebec residents. The way the notice was written was
likely to confuse its intended recipients, as Rayle J .A. of the Quebec
Court of Appeal correctly noted in her opinion (see para. 73).
[46] In sum, the Ontario notice did not properly explain the
impact of the judgment certifying the class proceeding on Quebec
members of the national class established by the Ontario Superior
Court of Justice. It could have led those who read it in Quebec to
conclude that it simply did not concern them. The argument made by
the respondent in this respect was in itself sufficient to justify dismissing the application for recognition. However, another argument
raised by the respondent and accepted by the Quebec Court of
Appeal - lis pendens - should also be examined.
F. Lis Pendens
[47] The respondent has argued since the beginning of the recognition proceedings that enforcement was precluded by a situation of
lis pendens, as provided for in art. 3155(4) C.c.Q. The Quebec
Superior Court expressed no opinion on this point, but the Court of
Appeal accepted this argument.
[48] There are two different legal situations in which lis pendens
is dealt with in Quebec private international law. The first reference
to lis pendens in the Civil Code of Quebec appears in art. 3137,
which is found among the general rules that establish the bases for
the jurisdiction of Quebec authorities and the fundamental conditions for exercising that jurisdiction in relation to a dispute involving
a foreign element. Under art. 3137, a Quebec court may stay its
ruling on a dispute over which it otherwise has jurisdiction if there

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is a situation of lis pendens with respect to an action under way
before a foreign authority. Lis pendens depends on the existence of
three identities, that of the parties, that of the facts on which the
actions are based and that of the object of the actions:
3137. On the application of a party, a Quebec 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 object is pending before a foreign
authority, provided that the latter action can result in a decision which may be
recognized in Quebec, or if such a decision has already been rendered by a
foreign authority.

[49] The second situation of lis pendens, the one with which we
are concerned in this appeal, arises in respect of an application for
recognition of a judgment rendered by a foreign authority. Under
art. 3155, this situation is one of the 'Casesin which a decision rendered
outside Quebec cannot be declared enforceable in that province.
[50] The first situation concerns the discretion of a Quebec court
to decide whether it will exercise its jurisdiction despite a finding of
lis pendens (Birdsall Inc. v. In Any Event Inc., [1999] R.J.Q. 1344
(C.A.), at p. 1351). In the second situation, the one that arises in
respect of an application for recognition of a foreign or external
judgment, the court hearing the application has been given no discretion under art. 3155(4) C.c.Q. The legislature has precluded the
application of the general principle of recognition of foreign or
external judgments in a situation of lis pendens (see: Glenn, No. 105,
at pp. 763-64). Thus, when the conditions for lis pendens are met,
the Civil Code of Quebec guarantees that the Quebec court has
priority, provided that it was seised of the case first.
[51] What must now be determined is whether, as a result of lis
pendens, the Quebec courts were precluded in the case at bar from
recognizing the judgment of the Ontario Superior Court of Justice.
The conditions for lis pendens are well established in the domestic
context in Quebec civil law. Like res judicata, lis pendens depends
on identity of the parties, identity of the cause of action and identity
of the object (J.-C. Royer, La preuve civile (4th ed. 2008), Nos. 78889, at p. 635; Rocois Construction Inc. v. Quebec Ready Mix Inc.,
[1990] 2 S.C.R. 440). However, in private international law matters,
the nature of the required identities is altered somewhat in the Civil
Code of Quebec in the case of lis pendens. In particular, in art. 3137,
as in art. 3155(4), the Code retains identity of the parties and

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identity of the object but substitutes identity of the facts on which the
actions are based for identity of the cause of action.
[52] This change takes account of the problems involved in
reconciling the specific features of legal systems that come into contact with each other, as well as the diversity in their substantive law
concepts and procedural rules. The Quebec judge therefore considers the facts on which the actions are based and does not go
beyond the differences in the legal systems in question to try to find
an identity of the cause of action. The analysis thus focuses more on
the respective objects of the two actions (Birdsall, at pp. 1351-52;
Goldstein and Groffier, at pp. 325-26).
[53] However, the appellant argues that, in any event, the Quebec
courts did not even have to consider the question of lis pendens.
According to art. 3155(4), lis pendens is relevant only if the Quebec
proceeding predates the foreign action. The Corporation submits that
the Quebec proceeding commenced no earlier than the date the
Quebec Superior Court authorized the class action, that is,
December 23,2003. In support of this argument, the appellant relies,
inter alia, on Thompson v. Masson, [1993] R.J.Q. 69, in which the
Quebec Court of Appeal stressed that a class action does not commence until it is filed, that is, after the judgment authorizing the class
action. Before that time, there is only an authorization proceeding
whose purpose is to screen applications. In the instant case, according to the appellant, the Ontario proceeding predated the Quebec
action because it was certified one day before the class action was
authorized in Quebec.
[54] This interpretation is consistent neither with the wording of
art. 3155(4) nor with the way that provision is applied in the context
of a class action. While it is true that Mr. Lepine's action did not
exist yet in Quebec at the time the judgment certifying the class proceeding was rendered in Ontario, an application for authorization was
nevertheless before the Quebec Superior Court prior to December 23,
2003. The term "dispute" has a broad meaning that encompasses all
types of legal proceedings (see Black's Law Dictionary (8th ed.
2004), at p. 505; see also, regarding the term "litige" used in the
French version of art. 3155(4), H. Reid, Dictionnaire de droit quebecois et canadien (3rd ed. 2004), at p. 355; Le Grand Robert de la
langue francaise (2nd ed., enl. 2001), vol. 4, at p. 864; Goldstein and

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Groffier, at p. 384). The application for authorization is a form of
judicial proceeding between parties for the specific purpose of determining whether a class action will take place. The Quebec proceeding
predated the one in Ontario, and the Quebec court was therefore seised
before the Ontario court, which means that art. 3155(4) c.c.Q. was
applicable.
[55] At that stage, the three identities were present. The basic
facts in support of both proceedings were the same for Quebec residents, namely the purchase and discontinuation of an Internet access
service. The object was also the same: compensation for breach of
the undertaking. Identity of the parties was established: a legal representative, the applicant at the authorization stage, was acting for the
entire group of residents. The identity of the representative in a class
action may vary in the course of the proceeding, but there is always
one representative for all the members. What the courts have
required is not physical identity of the parties, but legal identity
(Hotte v. Servier Canada Inc., [1999] R.J.Q. 2598 (C.A.), at p. 2601;
Roberge v. Bolduc, [1991] 1 S.C.R. 374 at pp. 410-11, 78 D.L.R.
(4th) 666). The lis pendens argument was well founded, and the
Court of Appeal rightly accepted it. Like the contravention of the
fundamental principles of procedure, the lis pendens situation precluded judicial recognition of the decision of the Ontario Superior
Court of Justice.
G. National Classes and Parallel Class Actions
[56] In addition to its conclusions of law, the Quebec Court of
Appeal seems to have had reservations or concerns about the creation of classes of claimants from two or more provinces. We need
not consider this question in detail. However, the need to form such
national classes does seem to arise occasionally. The formation of a
national class can lead to the delicate problem of creating subclasses
within it and determining what legal system will apply to them. In
the context of such proceedings, the court hearing an application
also has a duty to ensure that the conduct of the proceeding, the
choice of remedies and the enforcement of the judgment effectively
take account of each group's specific interests, and it must order
them to ensure that clear information is provided.
[57] As can be seen in this appeal, the creation of national classes
also raises the issue of relations between equal but different superior

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563

courts in a federal system in which civil procedure and the administration of justice are under provincial jurisdiction. This case shows
that the decisions made may sometimes cause friction between
courts in different provinces. This of course often involves problems
with communications or contacts between the courts and between
the lawyers involved in such proceedings. However, the provincial
legislatures should pay more attention to the framework for national
class actions and the problems they present. More effective methods
for managing jurisdictional disputes should be established in the
spirit of mutual comity that is required between the courts of
different provinces in the Canadian legal space. It is not this Court's
role to define the necessary solutions. However, it is important to
note the problems that sometimes seem to arise in conducting such
actions.
TV.Conclusion
[58] For these reasons, I would dismiss the appeal with costs.
Appeal dismissed.