Court of Appeal of Quebec

Otsuka Pharmaceutical Company Limited c. Pohoresky

Ruel, Moore, Bachand

Appeal from a judgment of the Superior Court granting in part an application for authorization to institute a class action and dismissing a declinatory exception. Allowed.

The trial judge authorized a class action regarding Rexulti, an atypical antipsychotic, on behalf of a national class. The action concerns six companies, only two of which (the impleaded parties) are located in Quebec, while the other four (the appellants) are in Japan, Denmark, and the United States. The application for authorization was initially filed by a person domiciled in Quebec, but that person withdrew from the file in March 2020 and was then replaced by respondents, who are both domiciled in Ontario. Further to this substitution, the appellants raised a declinatory exception challenging the jurisdiction of the Quebec authorities in their regard.

The appellants are of the view that the judge erred in law by considering that since the coming into force of article 491, paragraph 2, of the Code of Civil Procedure (CQLR, c. C-25.01) (C.C.P.), the mere fact that it is more convenient for an action to be instituted in Quebec is sufficient to permit the Quebec authorities to hear a dispute that has a minimal connection to Quebec. They also submit that the judge committed a reviewable error by concluding that the principle of proportionality dictates that the respondents should be authorized to sue them in Quebec.

The coming into force of article 491, paragraph 2 C.C.P. could not have the effect of permitting a Quebec authority to invoke article 3136 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.) to hear a case presenting a minimal connection to Quebec on the sole ground that the plaintiff could use its energy and resources more proportionately. Accepting that theory would have the effect of significantly modifying the rationale behind the jurisdiction set out in article 3136 C.C.Q., the cornerstone of which is to avoid  a miscarriage of justice, not simply to accommodate one of the parties.

That being said, it should be recognized that where the additional inconvenience (costs, delays, etc.) associated with a trial in a foreign jurisdiction is likely to jeopardize the plaintiff’s right to access justice, it may be unreasonable to require that the action be instituted there within the meaning of article 3136 C.C.Q. However, it is essential for such an observation to be sufficiently supported by the facts entered in evidence.

In this case, because the record does not ground the conclusion that requiring the respondents to sue the appellants in Ontario would actually jeopardize their action against them, the judge should have found article 3136 C.C.Q. inapplicable. The declinatory exception raised by the appellants is therefore granted, and the respondents’ application for authorization to institute a class action against them is dismissed.

Legislation interpreted: article 491, paragraph 2 C.C.P.

Text of the decision:

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