Case information

Private international law — Jurisdiction of Quebec Court — Civil procedure — Class actions — What is the proper interpretation of the forum of necessity doctrine under art. 3136 C.C.Q. in the context of a national class action — What is the relationship between art. 3136 C.C.Q., the principle of proportionality under art. 491 C.C.P., and access to justice in the context of national class actions — To what degree should the interpretation of art. 3136 C.C.Q. and art. 491 C.C.P. consider the importance of avoiding overlapping multi-jurisdictional class actions — Civil Code of Québec, arts. 3136, 3148 — Code of Civil Procedure, CQLR, c. C-25.01, arts. 18, 491, 575.

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The applicant M. Pohoresky was prescribed the drug Rexulti and claims to have experienced harmful, undisclosed side-effects, including compulsive gambling carried on in Ontario and Quebec. As his father, H. Pohoresky claims to have suffered due to his son’s gambling compulsion. Although the applicants live in Ontario, they were substituted for another potential representative plaintiff from Quebec who had to withdraw for health reasons. Together the applicants sought authorization in Quebec to commence a national class action against the respondents for their alleged failure to disclose the risk of the harmful side effects from Rexulti and to conduct adequate research and testing. While some of the respondents are Canadian subsidiaries located in Quebec, others are foreign defendants. When the applicants applied to certify their class action, the foreign defendants brought an application for declinatory exception, arguing that the Quebec courts were not the appropriate forum to adjudicate claims by non-residents of Quebec against non-resident defendants for events occurring outside the province. The Superior Court of Quebec accepted jurisdiction, granted in part the applicants’ motion for authorization to institute a class action and dismissed the respondents’ application for declinatory exception. The Court of Appeal of Quebec allowed the respondents’ appeal.