SUPREME
COURT OF CANADA
Between:
Impulsora
Turistica de Occidente, S.A. de C.V.,
Vision
Corporativa y Fiscal, S.A. de C.V., and
Hotelera
Qualton, S.A. de C.V.
Appellants
and
Transat
Tours Canada Inc.
Respondent
And between:
Tescor,
S.A. de C.V.
Appellant
and
Transat
Tours Canada Inc.
Respondent
And between:
MyTravel
Canada Holidays Inc.
Appellant
and
Transat
Tours Canada Inc.
Respondent
Coram:
McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron
and Rothstein JJ.
|
Reasons for
Judgment:
(paras. 1 to 10)
|
The Court
|
______________________________
Impulsora Turistica de Occidente, S.A. de C.V. v. Transat
Tours Canada Inc., [2007] 1 S.C.R. 867, 2007 SCC 20
Impulsora Turistica de Occidente, S.A. de C.V.,
Vision Corporativa y Fiscal, S.A. de C.V. and
Hotelera Qualton, S.A. de C.V. Appellants
v.
Transat Tours Canada Inc. Respondent
and
Tescor, S.A. de C.V. Appellant
v.
Transat Tours Canada Inc. Respondent
and
MyTravel Canada Holidays Inc. Appellant
v.
Transat Tours Canada Inc. Respondent
Indexed as: Impulsora Turistica de Occidente, S.A. de
C.V. v. Transat Tours Canada Inc.
Neutral citation: 2007 SCC 20.
File No.: 31456.
2007: April 25; 2007: May 25.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel,
Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for quebec
Private international law — Jurisdiction of Quebec
court — Forum non conveniens — Injunction order with extraterritorial effects —
Allegation of breach of contract made by Quebec travel wholesaler against
Mexican company that party to contract and against three other Mexican
companies that parties to breach of contract — Forum selection clause
in favour of Quebec courts — Alleged damage sustained in Quebec — Motion for
injunction to require foreign companies to honour contract — Superior
Court having jurisdiction to hear dispute — Difficulty enforcing injunction
order with extraterritorial effects not factor affecting Superior Court’s power
to make order and not leading to conclusion that doctrine of forum non
conveniens applicable — Civil Code of Québec, S.Q. 1991, c. 64,
arts. 3135, 3148.
Held: The
appeal should be dismissed.
Statutes and Regulations Cited
Civil
Code of Québec, S.Q. 1991, c. 64,
arts. 3135, 3148.
Code of
Civil Procedure, R.S.Q., c. C‑25.
APPEAL from a judgment of the Quebec Court of Appeal
(Dussault, Bich and Vézina JJ.A.), J.E. 2006‑716,
SOQUIJ AZ‑50363026, [2006] Q.J. No. 2519 (QL),
2006 QCCA 413, reversing a decision of Emery J., J.E. 2005‑2066,
SOQUIJ AZ‑50332482, [2005] Q.J. No. 12615 (QL). Appeal
dismissed.
Donald Kattan, for
the appellants Impulsora Turistica de Occidente, S.A. de C.V., Vision
Corporativa y Fiscal, S.A. de C.V. and Hotelera Qualton, S.A. de C.V.
Stéphane Pitre,
for the appellant Tescor, S.A. de C.V.
Karim Renno and
Dominic Dupoy, for the appellant MyTravel Canada Holidays Inc.
Richard A. Hinse, Élise Poisson and Bruno Verdon, for the
respondent.
The following is the judgment delivered by
1
The Court — The
respondent, Transat Tours Canada Inc. (“Transat”), applied for an injunction
and other remedies against the appellant Tescor, S.A. de C.V. (“Tescor”) in the
Quebec Superior Court. In substance, Transat alleged that Tescor, a Mexican
commercial corporation, had breached an agreement under which Transat had been
granted an exclusive right to lease rooms in a Puerto Vallarta hotel for three
years. The contract included a forum selection clause in favour of the Quebec
courts. Transat later asserted that three other Mexican corporations,
Impulsora Turistica de Occidente, S.A. de C.V., Vision Corporativa y Fiscal,
S.A. de C.V., and Hotelera Qualton, S.A. de C.V., had been parties to this
breach by agreeing to make blocks of rooms available to a Canadian company,
MyTravel Canada Holidays Inc. (“MyTravel”), which has a place of business in
the province of Quebec. Transat impleaded MyTravel as a mise en cause under
the provisions of Quebec’s Code of Civil Procedure, R.S.Q., c. C-25.
2
In the Superior Court, the Mexican defendants, with the support of
MyTravel, contested an application by Transat for a safeguard order. The
appellants also brought a joint motion for declinatory exception, in which they
argued that the Quebec courts lacked jurisdiction over the matter because
Transat was seeking extraterritorial relief against Mexican entities that had
no connections with Quebec. They also argued in the motion that, pursuant to
the principle of forum non conveniens, which is codified in art. 3135 of
the Civil Code of Québec, S.Q. 1991, c. 64, the Superior Court should
decline jurisdiction and dismiss Transat’s proceedings.
3
The Superior Court found in favour of the appellants, holding that there
were no grounds for issuing a safeguard order, as Transat could be adequately
compensated by a damages award. More importantly, it granted the motion for
declinatory exception, holding that the relief claimed by Transat would require
improper extraterritorial action by the Quebec courts, that any orders they
made would be ineffective and that, at any rate, under the principle of forum
non conveniens, the Mexican courts would be better situated to deal with
the case: [2005] Q.J. No. 12615 (QL).
4
Transat appealed the part of the judgment in which the Superior Court
had granted the motion for declinatory exception. It did not appeal the
dismissal of its application for a safeguard order. Dussault J.A., writing for
a unanimous Court of Appeal, reversed the judgment of the Superior Court and
dismissed the motion for declinatory exception ([2006] Q.J. No. 2519 (QL), 2006
QCCA 413). He found that a proper application of forum non conveniens led
to the conclusion that the Quebec courts had jurisdiction over the matter and
that it had been properly submitted to them. The effect of the Court of
Appeal’s judgment was that the case was remitted to the Superior Court for a
possible continuation of the proceedings.
5
We are all of the view that the Court of Appeal’s judgment is well
founded. In our opinion, Dussault J.A. correctly applied the relevant legal
principles relating to the jurisdiction of the Quebec courts and to forum
non conveniens.
6
First, we agree with Dussault J.A. that the Superior Court had
jurisdiction over the application for an injunction and other incidental
relief. He stated the following, at paras. 32-36:
[translation]
I cannot accept the respondents’ argument that a court of competent
jurisdiction could lack the power to issue an injunction with purely
extraterritorial effects.
On the one hand, article 46, paragraph 1 C.C.P.
provides that “[t]he courts and judges have all the powers necessary for the
exercise of their jurisdiction”.
On the other hand, insofar as article 3148 C.C.Q.
defines the scope of the jurisdiction of Quebec courts under private
international law and as, in the instant case, the Superior Court has
jurisdiction pursuant to subparagraph (3) of the first paragraph of that
article to decide the dispute, that court has the power to issue an injunction
against the respondents.
The possibility that the Superior Court would have
difficulty sanctioning a failure to comply with its orders does not affect its
power to issue an injunction. As Barclay J. of the Saskatchewan Court of
Queen’s Bench pointed out, “[a]lthough the Courts are reluctant to grant
injunctions against parties not within the jurisdiction, the power does exist”
(Super Seamless Steel Siding of Canada Ltd. v. Eastside Machine Co. (1993),
103 Sask. R. 293, at para. [47], citing Robert J. Sharpe, Injunctions and
Specific Performance, Toronto, Canada Law Book, 1983, at para. 123, and
loose-leaf edition, 2005, at para. 1.1190).
Rather, it is when the court exercises its
discretion under article 3135 C.C.Q., which authorizes it, “[e]ven though [it]
has jurisdiction to hear a dispute, . . . exceptionally and on an
application by a party, [to] decline jurisdiction if it considers that the
authorities of another country are in a better position to decide”, that it
will have to take difficulties in sanctioning a failure to comply with the
requested order into consideration (I.C.F. Spry, The Principles of Equitable
Remedies, Scarborough, Carswell, 1984, at p. 38).
7
We also agree with Dussault J.A. on the application of the doctrine of forum
non conveniens. He held that the Superior Court had, by focussing on
the difficulties that would arise in enforcing any orders it made, failed to
consider the relevant factors in the analysis. In this respect, we think it
will be helpful to reproduce the following comments of Dussault J.A., at paras.
39 and 40 of his reasons:
[translation]
Contrary to MyTravel’s submission, it is my view that in determining the most
appropriate forum to hear the dispute, the trial judge did not weigh the 10
criteria developed by the courts and did not consider from a purely theoretical
perspective the question of the Superior Court’s power to issue an injunction
order with extraterritorial effects. On the contrary, his decision to grant
the motions to dismiss the respondents’ action on the basis of forum non
conveniens was founded solely on his conclusion that he did not have the
power to issue such an order.
Since that conclusion was incorrect, the decision
based on it was also incorrect. As a result, I cannot accept the respondents’
argument that the trial judge judiciously exercised his discretion to decline
jurisdiction either.
8
It is also worth mentioning that Tescor had made a choice in favour of
the Quebec’s courts and laws. Moreover, any orders made by the Superior Court
would have an effect on MyTravel. The Superior Court appears to have conflated
the problem of the jurisdiction of the Quebec courts with the question of the
execution of their judgments in a foreign jurisdiction under the relevant rules
of private international law.
9
There were no grounds for denying or declining the jurisdiction of the Quebec
courts over the litigation between the parties to this appeal. As the only
issue before us is that of jurisdiction, we will refrain from expressing any
views on the merits of Transat’s proceedings, which remain to be determined in
the Superior Court.
10
For these reasons, the appeal is dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellants Impulsora Turistica de Occidente, S.A.
de C.V., Vision Corporativa y Fiscal, S.A. de C.V. and Hotelera Qualton, S.A.
de C.V.: Péloquin Kattan, Montréal.
Solicitors for the appellant Tescor, S.A. de C.V.: Borden
Ladner Gervais, Montréal.
Solicitors for the appellant MyTravel Canada Holidays
Inc.: Osler, Hoskin & Harcourt, Montréal.
Solicitors for the respondent: Lavery, de Billy,
Montréal.
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