Mainville, Dufresne, Hogue
Appeals from a judgment of the Superior Court ruling on declinatory exceptions. Dismissed.
Groupe SNC-Lavalin Inc. and three subsidiaries (SNC-Lavalin) brought a civil action for damages alleging that they were the victims of the embezzlement of more than 127 million dollars as a result of a fraud conceived and orchestrated by two former employees and officers, Ben Aïssa and Bebawi, with the help of other natural and legal persons (the Swiss defendants). Several declinatory exceptions were raised. The trial judge concluded in particular that the Quebec courts lacked jurisdiction with respect to the Swiss defendants and rejected Ben Aïssa’s arguments based on res judicata and the doctrine of forum non conveniens.
Regarding the issue of res judicata, the Swiss authorities had introduced criminal proceedings against Ben Aïssa. SNC-Lavalin was made a civil party in those proceedings. The judge refused to recognize the Swiss judgment because of the inseparable nexus between the criminal and civil conclusions. However, the Swiss judgment itself very clearly distinguishes between its criminal and civil conclusions, which makes it easy to separate the two. That said, a finding of res judicata cannot be made where there is no identity of object and cause. In addition, the Swiss judgment’s classification of the fraud accusations does not prevent SNC-Lavalin from asserting in Quebec its civil claims founded on the same facts.
Regarding the Superior Court’s jurisdiction with respect to the Swiss defendants, it must be recalled that the injury suffered was not due to contracts concluded in Quebec with the corporations that embezzled the funds. Indeed, the injury suffered was rather the embezzlement of significant sums for the benefit of Ben Aïssa and Bebawi. The embezzlement was based on actions that took place largely outside of Quebec. The economic loss therefore cannot provide a basis for the jurisdiction of the Quebec courts with respect to the Swiss defendants. Regarding the injury resulting from the damage to reputation, SNC-Lavalin’s allegations were vague with respect to the place where this injury was suffered and it simply asserted that its reputation has been tarnished in Quebec and throughout the world. Lastly, the Swiss defendants did not recognize the jurisdiction of the Quebec courts, either explicitly or even implicitly.
Regarding the application of the doctrine of forum non conveniens, recognizing Ben Aïssa’s argument according to which the Quebec courts’ lack of jurisdiction with respect to the Swiss defendants must be taken into account would be tantamount to accepting that a crook can escape a civil trial in the natural forum by choosing a secondary accomplice subject to the exclusive jurisdiction of a foreign court where it would be more difficult to sue the crook in a civil proceeding or which would be more favourable to that person. The Court cannot accept such an argument, which moreover appears contrary to public order in the context of a civil action based on fraud or a scam. There is also no reason to interfere with the judge’s analysis of the connection factors.
Text of the decision: Http://citoyens.soquij.qc.ca