Par
Sarah D. Pinsonnault
Revenu
Québec
In Johnston c. Great West Life, 2013 QCCS 1404, the Defendants, Great West Life
and one of its insurance representatives, are being sued by the trustee of
Andrei Markov’s Trust for false representations made regarding the universal
life insurance policy issued by the former. Alleging vitiated consent, the
Trust is asking for the annulment of the Policy and the reimbursement of $1,233,434.33
paid in premiums. Markov, being the sole beneficiary of the Trust, impleaded in
the proceedings.
In response, the Defendants filed a motion to (i) have the action be
dismissed based on the forum non
conveniens doctrine and (ii)
quash the intervention of Markov under the pretext that his presence is unnecessary
for the resolution of the dispute.
With respect to the first argument, the Defendants purported that the Quebec courts were not
competent to hear and decide on the case at bar due to section 3150 of the Civil
Code of Quebec (“C.C.Q.”). This
section provides that Quebec authorities have
jurisdiction to hear actions based on insurance contracts when, inter alia, the insured or the
beneficiary of the contract resides in Quebec. In actuality, the “insured” in this
case is the trustee of Markov’s Trust, who just so happens to reside in Ontario.
Furthermore, the Defendants argued that the issuance of the insurance
policy falls within their “ordinary course of business”, as set forth in
section 3113 C.C.Q.. Thus, the applicable laws of
their establishment, being in Manitoba,
should apply.
Justice Thomas M. Davis of the Quebec Superior Court first analysed
various sections of the Code of Civil
Procedure (“C.C.P..”) and the Civil Code of Quebec and reasoned that,
in personal actions of a patrimonial nature, Quebec authorities have
jurisdiction when the defendant is a legal person who, although may not be
domiciled in Quebec, has an establishment in the province and the dispute
relates to its activities in Quebec (s. 3148(2) C.C.Q.). In this case, despite the fact that the Defendants’ head
office is in Winnipeg, they do hold an office
and carry out business here in Quebec.
Regarding the forum non conveniens
principle, as prescribed in section 3135 C.C.Q., Justice Davis analysed various
case law, namely the Supreme Court of Canada’s Spar
Aerospace Ltee c. American Mobile
Satellite Corp., and the recent Quebec Court of Appeal’s Stormbreaker
Marketing and Productions Inc. c. Weinstock.
The lesson drawn from these is that a Quebec
judge may decline jurisdiction in multi-jurisdictional matters only under exceptional
circumstances (note: a summary of the latter case by Me Ashley Kandestin’s is
available here).
More precisely, the criteria for determining whether a court judge is
entitled to decline jurisdiction pursuant to section 3135 C.C.Q. are twofold: first, it must be
established that the courts of a foreign jurisdiction are better suited to hear
the case and, secondly, that exceptional circumstances justify this
declinatory exception.
Simply put, the purpose of the forum
non conveniens doctrine is to level the playing field between opposing
parties:
“[63] Stormbreaker makes it
clear that the legislator meant to protect the potentially vulnerable party by
allowing them to seek redress in their home jurisdiction.
[64] Markov resides in Quebec and was a
resident of Quebec
when he signed the Policy. Despite the trust arrangement, it is Markov as an
individual who the alleged misrepresentations affect the most. These facts also
lead to the conclusion that the Quebec
courts should not decline jurisdiction.”
Lastly, regarding the debate surrounding Markov’s presence, Justice
Davis deemed his presence necessary, in conformity with section 216 C.C.P., so as to allow for the complete resolution
of the case:
“[68] Markov is the settlor of the Trust and sole beneficiary of the
Trust. The financial scheme, consisting of the RCA trust and the purchase of
insurance policies, was created to secure his financial security when he
retires. Markov is also the sole source of revenue invested in the Trust and of
the premiums paid to GWL. Markov’s objectives are inextricable from those of
the Trust.
[69] Simon, the trustee at the time the Policy was signed, made the
decision to purchase the Policy in order to meet Markov’s financial needs and
objectives. The Court cannot obtain a complete picture of the whether
Niskanen’s representations were consistent with the final terms of the Policy
without insight into Markov’s intention and understanding of the matter.
[70] The need for Markov to be a party to the proceedings is
strengthened by the allegations in the introductory motion that various
misrepresentations were made to Markov following the issuance of the Policy.”
To read this decision in its entirety, click here.
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