R.S. v. P.R. (2019) SCC 49

If a foreign court is hearing the same case, the court in Quebec does not necessarily have to place the trial on hold.

The parties are Belgian citizens who, when concurrent divorce proceedings started, were living in Quebec. P.R (respondent) appealed first to the Belgian divorce authority and, under Belgian law, to liquidate the matrimonial regime. In Quebec, R.S (appellant), demanded a divorce as well as provisional, accessory and safeguard provisions according to the legislation existing in the province. By means of a letter, Respondent revoked all inter vivos presents which he had rendered to appellant after their matrimonial union, amounting to more than $33 million, which, under Belgian law, was permissible under Article 1096 of the Belgian Civil Code. Also, in addition to that respondent applied to the Québec Supreme Court, on the grounds of lis pendens, to stay appellants proceedings in Québec as allowed by Article 3137 of the C.C.Q. To refuse a stay of prosecution, the trial judge exercised its discretion. The Court of Appeal overturned the verdict, noting the arbitrary decision of the court to deny the stay. Appellant filed leave of appeal in Supreme Court Canada (SCC).

The SCC set out to decide whether, under Article 3137 C.C.Q the three necessary conditions for a stay are fulfilled, as to who has the burden to proof and to identify the principles that form the discretion of a judge until the conditions were met. Regarding the burden of proof it goes to the person seeking the benefit of stay under Article 3137 and the 3 requirements to proof are (1) the prior proceeding concerns the same parties, facts and subject-matter (2) it is pending before a foreign authority or court and (3) it can give rise to a resolution which may be accepted in Québec.

Supreme Court of Canada’s majority agreed with the Court of Appeal that all necessary requirements for a possible stay were served by the respondent. Even if it was not clear if the Belgian judgment would be recognised in Quebec, it was said that the respondent had done enough to prove that it was likely. Addition to that, majority also agreed on the fact that the decision of the application judge to hear the appeal could still stand. Quebec courts should not immediately place their cases on hold even when the three conditions are met. On the question of the exercise of the right by a judge, the majority concluded with the trial judge that, even though all three of the international lis pendens conditions are satisfied, the motion for a stay could be denied by the court. The three requirements for lis pendens do not examine the relation of the parties to the international jurisdiction. With regard to rulings on lis pendens, it is reasonable for the court to exercise discretion more flexibly. The concerns include where the parties live; the location of physical investigations, consultants, and witnesses; where a bond has been established etc. And in this case the family home of the appellant and the respondent was in Quebec. Hence making Quebec closely connected to the dispute.

In the end, the SCC permitted appellant’s appeal and restored the decision of the trial court to deny Respondents request for a stay, even though the claimant met all three conditions of Article 3137.