The Real and Substantial Connection Test in Canadian Class Action

Introduction

This paper will discuss how Canadian court dealt with jurisdictional issues in class proceedings, how the conflicts of law rule interacts with class proceeding rules in Canada. Conflicts of law, as known as private international law, included the rules that have been chosen for deciding when jurisdiction can be assumed over a given dispute, what law will govern a dispute or how an adjudicative decision from another jurisdiction will be recognized and enforced. Applied it to class proceedings, it is about the rules on when jurisdiction can be assumed over a class proceeding, what law will govern the class proceeding, or how an adjudicative decision on class action or judicial approval of a class action settlement from another jurisdiction will be recognized and enforced.

Traditionally, Canadian courts, inherited the common-law tradition, only take jurisdiction over foreign defendants present in or submit to the forum. However, Canadian courts recently broaden their approach in recognizing and enforcing foreign jurisdiction if there are a real and substantial connection between the foreign defendants and the forum.

Canadian courts, adopting the real and substantial connection approach, are willing to assume jurisdiction in class proceedings when there is a real and substantial connection with the forum even if the plaintiff did not submit or present to the forum and subject to another jurisdiction.

The Development of the Real and Substantial Connection Test

The real and substantial connection was first introduced in Morguard v De Savoye[1]. Supreme Court of Canada discussed that common law conflict of law is based on comity, order and fairness. After Morguard, Canadian court must recognize and enforce a judgement arising from another province, provided that there was a real and substantial connection between the action and the province. This approach was quickly adopted for interprovincial litigation under federalism.

Later on, in Muscutt[2], Justice Sharpe identified 8 factors to assess the connection in paragraph 75 to 110.

• A connection between the forum and the Plantiff’s claim
• A connection between the forum and the Defendant’s claim
• Unfairness to the Defendants in assuming jurisdiction
• Unfairness to the Plaintiff in not assuming jurisdiction
• Involvement of other parties to the suit
• The courts willingness to recognize and enforce an extra-provincial judgement rendered on the same jurisdictional base
• The nature of the case (interprovincial or international)
• Comity and standards of jurisdiction, recognition and enforcement prevailing elsewhere.

Moran v Pyle National Ltd[3]is the first case about torts on product liability, the Supreme Court of Canada ruled “Where a foreign Defendant carelessly manufacture a product in a foreign jurisdiction which enters into the normal channels of trade, and he knows or ought to know both that

1.                   As a result of his carelessness a consumer may be injured, and
2.                 It is reasonably foreseeable that the product would be used/consumed where the Plaintiff used/consumed it.  Then the forum in which the Plaintiff suffered damage is entitled to exercise jurisdiction over that foreign defendant.. . that he reasonably ought to have had in his contemplation when he tendered his goods.  This is particularly true of dangerously defective goods in the interprovincial flow of commerce”.

One of the most important case in the development of the real and substantial connection test is Club Resorts Ltd. v Van Breda[4]. It is a case involve personal injury claims for Canadian tourists sustained damage when taking vacation in Cuba. The motion judge found that the Ontario court should assume jurisdiction against the foreign defendants. Both the Court of Appeal and Supreme Court of Canada upheld the trial decision. Sharpe JA wrote for the Court of Appeal decision while Justice Lebel wrote for the Supreme Court of Canada decision.

 The Supreme Court of Canada’s decision in Club Resorts Ltd. v Van Breda addresses the legal test for when a Canadian court should assume jurisdiction over an out-of-province or even a foreign defendant.

“ To meet the common law real and substantial connection test, the party arguing that the court should assume jurisdiction has the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum.  Jurisdiction must be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation with the forum.  Abstract concerns for order, efficiency or fairness in the system are no substitute for connecting factors that give rise to a “real and substantial” connection for the purposes of the law of conflicts.  In a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:

(a)         the defendant is domiciled or resident in the province;

(b)         the defendant carries on business in the province;

(c)         the tort was committed in the province; and

(d)         a contract connected with the dispute was made in the province.

Although the factors set out in the list are considered presumptive, this does not mean that the list of recognized factors is complete, as it may be reviewed over time and updated by adding new presumptive connecting factors.  When a court considers whether a new connecting factor should be given presumptive effect, the values of order, fairness and comity can serve as useful analytical tools for assessing the strength of the relationship with a forum to which the factor in question points. These values underlie all presumptive connecting factors, whether listed or new.  In identifying new presumptive factors, a court should look to connections that give rise to a relationship with the forum that is similar in nature to the ones which result from the listed factors.  Relevant considerations include:

(a)         Similarity of the connecting factor with the recognized presumptive connecting factors;

(b)         Treatment of the connecting factor in the case law;

(c)         Treatment of the connecting factor in statute law; and

(d)         Treatment of the connecting factor in the private international law of other legal systems with a shared commitment to order, fairness and comity.

The presumption of jurisdiction that arises where a recognized connecting factor — whether listed or new — applies is not irrebuttable.  The burden of rebutting the presumption of jurisdiction rests, of course, on the party challenging the assumption of jurisdiction.  That party must negate the presumptive effect of the listed or new factor and convince the court that the proposed assumption of jurisdiction would be inappropriate.  This could be accomplished by establishing facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them.

If the court concludes that it lacks jurisdiction because none of the presumptive connecting factors — whether listed or new — apply or because the presumption of jurisdiction that flows from one of those factors has been rebutted, it must dismiss or stay the action, subject to the possible application of the forum of necessity doctrine.  If jurisdiction is established, the claim may proceed, subject to the court’s discretion to stay the proceedings on the basis of the doctrine of forum non conveniens.In Van Breda, The Supreme Court of Canada dismissed the appeals on the basis that, applying the recognized presumptive connecting factors, the Ontario court had jurisdiction, and Club Resorts had failed to rebut those presumptions. In the case of Van Breda, the fourth presumptive factor applied, whereby the litigation was connected to a contract entered into in Ontario. With respect to the second action, the second presumptive factor was established on the basis that Club Resorts maintained an active commercial presence in Ontario. The court also declined to exercise its discretion under the doctrine of forum non conveniens in this case, on the basis that considerations of fairness weighed in favour of the plaintiffs.”[5]

After Van breda, almost every provinces in Canada integrated the real and substantial connection test into legislation. In British Columbia and Ontario, the legislation was called Court Jurisdiction and Proceedings Transfer Act (“CJPTA”). In BC, section 3 and section 10 of the CJPTA defines when the court will have territorial competence by establish the real and substantial connection between the forum and the facts. Section 6 give the court residual discretion to assume jurisdiction even if the factors in section 3 probably are not met[6].

In Stanway v Wyeth Pharmaceutical Inc[7],  the court reconfirmed that section 10 of the CJPTA creates a mandatory, rebuttable presumption the real and substantial connection if one of the factors listed in section 10 is met, and the list is not exhaustive.

Although there are some cases[8] shown that the party who are seeking to establish the connection should show it is a good arguable case, there is probably no such heavy burden for the plaintiff who are seeking certification for a class proceeding because the merit of the case can be decided later[9].

In sum, Van Breda defines the common law on how Canadian courts can assume jurisdiction based on a real and substantial connection.

Rebutting the Presumption of Jurisdiction

Larry Lowenstein, Mary Paterson and Robert Carson summarized the doctrine of forum non-convenience in the article “Canada Revamps the Test for Jurisdiction over Foreign Defendants”.

“If a presumption of jurisdiction is engaged, the onus shifts to the defendant, who may rebut the presumption. The Supreme Court of Canada gave the following explanation of what the defendant must establish to rebut the presumption:

“The defendant must establish facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them.”[10]

If the defendant succeeds in rebutting the presumption of jurisdiction, the court must decline to determine the matter. However, it should be noted that even if the court has jurisdiction over a matter, the defendant can still argue that the court should decline to exercise that jurisdiction in favour of proceedings in another province or country which may be the more appropriate forum in which to the litigate the dispute. The CJPTA also legislated this doctrine of forum non conveniens in section 11[11].”

It is established by the Supreme Court of Canada in Amchem Products Inc. v British Columbia[12] and later case law that it is always the defendants bear the burden of arguing forum non conveniens if the real and substantial connection or other personal connecting factors are established. It is contraryto the common law tradition Spiliada Maritime Corp. v. Cansulex Ltd.  developed in UK that the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay, but if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country[13]. There are lots of critiques regarding the Canadian approach which put heavy burden on the defendants.

The review of the case law in the development of the real and substantial connection test to assume jurisdiction by Canadian courts showed that Canadian courts are taking a very board and liberal approach in assuming jurisdiction. It is also demonstrated by various class action cases which have been dealt with jurisdictional issues. The unique features of class proceedings also created challenge for Canadian courts in applying the real and substantial connection test and assuming jurisdictions.

From the review of conflicts of law rules above, it can be inferred that a class proceeding started in Canada probably potentially include foreign class members or foreign defendants.

For example, when a settlement was reached, the defendants want the settlement to be recognized globally. The defendants would want recognition for res judicata, prevention of further actions. Class action statutes purport to bind everyone in the class and to bar further actions. Opt-out class statutes pose a problem that members of the class may not have been aware of the litigation and of their own membership in the class.

In addition to the difficulties created by the opt-out class action regime, there may be issues yet to be resolved concerning the constitutional validity of any legislation purporting to bind non-resident involuntary plaintiff. However the constitutional issue is not within the discussion this paper.

Class Action Cases Involved Jurisdictional Issues

While the Morguard principles may provide prospects for how we deal with jurisdictional issues, the Morguard decision cannot supply the details of the standards and practices on class proceedings because it can be a case about the preclusive effect of judgments as they affect the interests of named parties, and named defendants, and not about the interests of class members, and unnamed plaintiffs who could not or would not sue separately.  Therefore, it is important to consider the interaction of the real and substantial connection test and the features of class proceedings, provided with the principle of order and fairness emphasized in assuming jurisdiction.

When a court decides whether to recognize a judgement in class action, the question is better understood as a question of appropriate forum, considering all the named parties, class members (resident of the forum and non-resident of the forum) and the principle of order and fairness.

Currie v. McDonald’s[14] is one of the most important cases talked about the recognition and enforcement rules should consider certain unique features of class action proceedings. In this case, the court considered the situation of the unnamed, non-resident class plaintiff. The court specified that “I am not persuaded that a model entirely based upon the position of the defendant in a traditional two-party lawsuit can adequately capture the legal dynamics and complexity of the situation of an unnamed plaintiff in modern cross-border class action litigation. The position of the class action plaintiff is not the same as that of a typical defendant.” [15] The conflicts of law rule cannot be automatically applied in class action cases.

David Kent provided a good case summary of Curries’  facts in his article “Cross-Border Class Action Settlements: Unwilling Litigants in the U.S. Courts”. Here is my summary from page 15-16 of the article:

The Currie is about a class action with an allegation of wrongdoing in promotional prize offered to MacDonald’s’ customers sponsored by McDonald’s in the U.S. and Canada.  For the US actions there are several people charged criminally.

The US class action (“Boland”) was commenced in Illinois, the city where the headquarter of Macdonald’s located, in August 2001.  The Boland settlement was agreed in 2002.  In the Boland settlement, the defendant expected to cover all the class members in North America.

The Boland settlement was approved by Judge Schiller in June 2001 and the Illinois court required notice to be provided to Canadian class member, in a way to be published in three major magazines in Canada and in two U.S. publications that also had circulation in Canada.

A parallel Canadian class action (“Parsons”) was commenced in Ontario four days before the final fairness hearing for Boland.  Mr. Parsons object the Boland settlement on the ground that the US court lack of jurisdiction in regard of Canadian class actions. Another parallel Canadian class action (“Currie”) was launched in Ontario about two weeks after the Boland final fairness hearing.

In January 2003, Judge Schiller finally approved the Boland settlement notwithstanding the objection above.  His order provided that the settlement is binding on all class members of the class action who had not opted out, therefore, including the Canadian class members.

After that, the defendant apply to dismiss or stay the Canadian cases in the Ontario court based on the Boland settlement. The defendant argued that all claims should had been dismissed by recognizing the enforcing the Boland action.

The Ontario motions judge disposed the Parsons action based on the ground that Mr. Parsons had submitted to the US jurisdiction, in a way by appearing to the Boland settlement to object it. According to the common law of assuming jurisdiction, presence and submission are the traditional ways of assenting jurisdiction.

However, the Ontario motion judge refused to stay or dismiss the Currie action because the US court would have jurisdiction over Canadian class members even though they were neither present nor submit to the US court but dismissed the Currie action because the notice given to Canadian class members was not enough. Finally the motion judge held that the US settlement should not be enforced against Canadian class members. The plaintiffs appealed. The Ontario Court of Appeal, written by Sharpe JA, dismissed the appeal.

The Court of Appeal began its analysis by ask whether the “Ontario courts should recognize and enforce the Boland judgement against Currie and the non-attorning Canadian class members he seeks to represent”[16]. It refer back to the Morguard for the two principle of “the real and substantial connection” and “order and fairness”s to illustrate the general conflict of law rules when recognizing a foreign judgement.

Citing from some US case law, Sharpe J. recognized that class action regime typically imposes upon the court a duty to ensure the interests of the plaintiff class members are adequately represented and protected.

In addition, Sharpe J. also considered the nature of the class action and think the Canadian court should scrutinize the conduct of the plaintiff: whether the plaintiffs participated in the foreign proceedings. In this case, the Canadian plaintiffs became unnamed plaintiff of the Canadian proceedings simply by being a client of a McDonalds’ Canada restaurant and participated in a promotional prize giveaway presented by McDonalds’ Canada.

In summary, the Court of Appeal’s clarifies on to whether the Boland decision would have been recognized and enforced against Canadian plaintiffs beside the notice issue.  “Given the substantial connection between the alleged wrong and Illinois, and given the small stake of each individual class member, it seems to me that the principles of order and fairness could be satisfied if the interests of the non-resident class members were adequately represented, and if it were clearly brought home to them that their rights could be affected in the foreign proceedings if they failed to take appropriate steps to be removed from those proceedings.”[17]

Currie told US Defendants that given the right circumstance and followed the appropriate procedure, it is possible for a settlement released in US and approved by US courts to be effectively binding on Canadian jurisdiction.

After Currie, there are case law developed around the conflicts of law rule on class proceedings including some securities misrepresentation cases, such as Silver v IMAX[18], McCann v CP Ships[19], McKenna v Gammon Gold Inc.[20], and Dobbie v Arctic Glacier[21]. These cases generally told us that given the unnamed plaintiff purchased their shares in Canada or though Canadian intermediaries, the real and substantial connection can be met therefore Canadian courts can assume jurisdiction on unnamed, not adorning claimants and foreign defendants.

Ramdath v. George Brown College[22] is also a misrepresentation case.  This is a motion for certification of a proposed class action. The plaintiffs are former students in the International Business Management Program (the “Program”) at The George Brown College of Applied Arts and Technology (“George Brown”). They claim that the course calendar misrepresented the benefits of the Program and falsely stated that it would enable them to obtain three industry designations in addition to a college certificate.

Defendants in Ramdath argued that the action should not be certified because there are 65% of the class who are international students. It is possible that the Canadian judgement would not be recognized in their home jurisdiction and those international students who are not happy with the outcome in this action would take a “second bite” in their home countries. Defendants also provided expert opinions that a judgement in a class action is not likely to preclude litigation in jurisdictions such as Indian and the People’s Republic of China.

The defendant interpreted Morguard as the authority on the private international rule that there be a “substantial connection” with the forum before a court exercises jurisdiction over the case and that where such connection exists the courts of other jurisdictions will recognize the judgement of the forum. In Morguand, the court did say the court exercising jurisdiction must have regard to the principle of “order and fairness”, including “acting through fair process and with properly restrained jurisdiction” and read it as “jurisdiction follows recognition”.  However, the court did not accept the interpretation of “jurisdiction follows recognition” by the defendants from Morguard in Ramdath. G.R. Strathy J. who wrote the judgement stated “I regard the quoted passage as affirming that if a court exercises jurisdiction over non-residents based on a real and substantial connection, and does so having regard to order and fairness, its decision ought to be respected and enforced in other jurisdictions, both as a matter of private international law and, in the case of the decisions of courts of other provinces, Canadian constitutional law.”[23]

Finally, the court concluded in Ramdath, the jurisdictional factors almost exclusively point to Ontario, and it is unlikely that any class member would commence a proceeding in any other jurisdiction.  It is appropriate for this Court to take jurisdiction over non-resident class members in these circumstances, especially where the class members are as easily identifiable as in this case.

Meeking v Cash Store[24]is a very interesting case and currently under appeal to the Supreme Court of Canada. In this case, it has been decided that the Ontario court can have jurisdiction even without notice or explicit consent to extra-provincial plaintiff based on the real and substantial connection.  It has been ruled that common issue existing between resident plaintiff and non-resident plaintiff can be a presumptive factor to establish the real and substantial connection for the court to assume jurisdiction, which seems to contrary to the interpretation of the real and substantial connection in Van Breda “The involvement of other parties to the suit is only relevant in cases where that is asserted as a possible connecting factor and in relation to avoiding a multiplicity of proceedings under forum non conveniens”[25].

Airia Brands v Air Canada[26]is a case pointing to the contrary direction that the Canadian court feels comfortable to take jurisdiction over a class certification application motion and stayed the proceeding. In this case, the defendants’ argument that broadness of the class (mostly non-Canadians) was unfair to the non-attorning plaintiffs was successful.

The Airia is a class certification application about alleged price fixing conspiracy on air freight; The defendants are air transportation companies who provided air freight service in Canada. It could be a test case to certify a worldwide class in Canada after Ramdath. The allegation is that defendants conspired in Canada and throughout the world to fix price of Airfreight Shipping Services, which is defined to mean airfreight cargo shipping services for shipments to or from Canada.  The airfreight shipping services can be purchased directly from those defendants or indirectly purchased from air freight forwarders.

The Class definition is a worldwide class of whoever purchased airfreight service with 2 exception 1) people who commence litigation outside Canada prior to the conclusion of the trial of the common issues, and  2) persons and shipment that fall within the scope of the proposed class actions that have been commenced in the US and Australia.

The issue is whether the court have jurisdiction over putative class member who reside outside Canada and if so whether the court should exercise that jurisdiction. Justice Leitch gave a negative answer in this case and concluded that jurisdiction over class members can only be established if they are present in Ontario or have consented in some way to the jurisdiction of this court.[27] The Canadian courts should not apply the real and substantial connection test arbitrarily without the reasonable expectation of the class members.

Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30 is one of the most recent Supreme Court of Canada decision discussed the real and substantial connection in a class action case. During the economic recession in 2007-2008, GM wanted to close many of its dealership in Canada. Over 200 dealerships were closed in Canada and there is a Wind-down Agreement entered between GM and each dealerships. 207 GM dealers who had been closed down later commenced a class action, alleging GM had forced them to enter the Wind-Down Agreements. The law firm, Cassels Brock & Blackwell LLP is claimed to be negligent in regard of advising the Wind-down Agreement. However, within the Wind-Down Agreement, each individual dealers were required to have retain independent legal advices before entered the agreement. Therefore, all the 150 law firms whoever provided legal advice regarding the Wind-down Agreement was added as third party defendants in the action. Some of the non-Ontario third parties defendants disputed the jurisdiction for the action to be taken in place of Ontario. The Motion judge dismissed the challenge and so do the Court of Appeal. Finally the Supreme Court of Canada dismiss the application to challenge Ontario’s court’s jurisdiction with Justice Cote dissented.

Excalibur Special Opportunities LP (“Excalibur”)[28] is also a recent misrepresentation class action case decided by the Ontario Court of Appeal. Summarized by Paul Davis and Brandon Mattalo in “Uncertain Implications for Global Class Certification: The Ontario Court of Appeal’s Decision in Excalibur Special Opportunities” the facts of Excalibur is as follow:  It is a Toronto-based partnership, was 1 of 57 investors in a Nevada corporation that owned and operated hog farms in China. In addition to Excalibur, only one other investor was based in British Columbia. The vast majority of the investors were based in the United States. Excalibur and the other investors allegedly relied on an audit report prepared by a Toronto and Montreal-based accounting firm, Schwarts Levitsky Feldman LLP (“SLF”), when deciding to invest. After some disclosures, the investors found out that they lost all of their money. Excalibur sought to certify a global class action against SLF in Ontario for negligence and negligent misrepresentation for alleged false statements contained in the audit report on which they allegedly relied to invest. The court spited its opinion on the jurisdictional issue. The Court of Appeal granted the certification of the global class in December 2016, with a dissenting judgement.

Most of the class action cases above demonstrated that Canadian courts generally are comfortable to assume jurisdiction over foreign defendants by establishing the real and substantial connection.

The Application of the Real and Substantial Connection Test in Class Action Cases

In Currie, Sharpe J. A. outlined the novel point of the application of the real and substantial connection test and the principles of order and fairness to unnamed, non-resident Plaintiffs in international class action. Sharpe J.A summarized that “provided (a) there is a real and substantial connection linking the cause of action to the foreign jurisdiction, (b) the rights of non-resident class members are adequately represented, and (c) non-resident class members are accorded procedural fairness including adequate notice, it may be appropriate to attach jurisdictional consequences to an unnamed plaintiff’s failure to opt out. In those circumstances, failure to opt out may be regarded as a form of passive attornment sufficient to support the jurisdiction of the foreign court. I would add two qualifications: First, as stated by La Forest J. in Hunt v. T&N plc, supra, at p. 325 S.C.R., “the exact limits of what constitutes a reasonable assumption of jurisdiction” cannot be rigidly defined and “no test can perhaps ever be rigidly applied as no court has ever been able to anticipate” all possibilities. Second, it may be easier to justify the assumption of jurisdiction in interprovincial cases than in international cases: see Muscutt v. Courcelles (2002), 2002 CanLII 44957 (ON CA), 60 O.R. (3d) 20, [2002] O.J. No. 2128 (C.A.), at paras. 95-100. “[29] In short, the court need to consider whether the non-resident has done something that would give rise to a reasonable expectation that legal claims arising out of the activity could be litigated in the jurisdiction. The courts need to consider appropriate representation for such class members, appropriate notice and an informed and meaning opportunity to opt out.

Currie is the leading case which dealt with the interaction of the private international law and class action rules. It tells us that Canadian courts will apply the real and substantial connection test to class proceedings, taking into consideration of the principle of order and fairness at the same time, and considering the interest of all the parties, including unnamed non-residents Plaintiffs. However, the principle provided by Currie is still highly abstract and waiting for further interpretation.

Van Rensburg J further commented on this summary on Silver v IMAX Corp. In Silver v IMAX Corp, she applied the three factors from Currie to determine whether a global class should be certified.

In Ramdath, Strathy J. concluded that the court should take jurisdiction over the non-resident class members. However, in Airia, it has been emphasized that it is only given the special circumstances in Ramndath that the real and substantial connection was established:

there would be every reason for both to expect that claims arising from their relationship would be litigated in Ontario. Given that George Brown is based in Ontario, the students came to college in Ontario and lived in Ontario, and the contract was performed in Ontario, it is hard to imagine that either party would have contemplated that George Brown would be sued in China, India or any one of the other foreign jurisdictions if the relationship broke down. There is, in any event, a real and substantial connection with Ontario and there is no such connection with any other single jurisdiction.[30]

However, the facts in Airia is distinguishable from Ramadath. First, there was a finite group of international students (78 of the 119 students) from specifically identified countries, while in Airia there are countless numbers of absent foreign claimants from all the countries in the world. Secondly, there is no action commenced in any foreign forum other than the Ontario court, while in Airia there are litigation on the same issue commence in the United Kingdom, Netherlands and Australia. Thirdly, Leithy J. decided in Airia that the torts may not be committed in Canada as well as the damage may not be suffered in Canada, while in Ramadath, given that George Brown is based in Ontario, the students came to college in Ontario and lived in Ontario, and the contract was performed in Ontario, it is not difficult to conclude that there is more nexus between the case and the forum in Ramadath. Finally, in Airia it has both (and most) foreign defendants and non-resident Plaintiffs.

Further, it is interesting to noted that Leithy J. disagree with Strathy J. in his interpretation that the real and substantial connection is generally accepted globally in Airia. While Strathy J. considered the real and substantial connection test met generally accepted principles of private international law and concluded that an Ontario court could reasonably expect other court to give effect to its judgement; Leithy J felt that such a conclusion may not be true and there had been decision of foreign courts such as the Irish, U.K. and Hong Kong courts that concluded to the contrary.

In McKenna, Strathy found that there is a real and substantial connection between Ontario and a cause of action for prospectus misrepresentation in a public offering in Ontario. However, he only include the persons who acquired securities within Canada into the class definition as the person who acquired securities outside Canada would not have a reasonable expectation that their rights would be ultimately determined by a Canadian court. [31]

Perell J cited Ramdath in Airia and concluded that it is generally can be assumed that the foreign court will enforce the Ontario judgement if it was fair for the Ontario court to extend its jurisdiction to the foreign Class Members.  However, given the case law and the special circumstances in different cases, it is still remained unclear when the court will assume and exercise its jurisdiction in a particular case. All the analysis above are facts-driven.

Recap from the case law on the real and substantial connection test, to meet the common law real and substantial connection test, the party arguing that the court should assume jurisdiction had the burden of identifying a presumptive connecting factor that links the subject matter of the litigation to the forum. These presumptive factors are listed in Van Breda and legislated in the CJPTA, and the list is not exhaustive. The courts have the discretion to add new factors.  The presumption of jurisdiction that arises where a recognized presumptive connecting factor is rebuttable and the burden of rebutting it rests on the party challenging the assumption of the jurisdiction.

In class actions, given there is a nexus between the forum and the present case, it is highly possible that the court will assume its jurisdiction if it meets any of the presumptive factors.

Meeking is a controversial case and is currently under appeal to the Supreme Court of Canada because it creates a new assumptive connecting factor for national and global class action cases.  Cameron J.A. concluded at para.97 that “in circumstances where the court has territorial jurisdiction over both the defendant and the representative plaintiff in the class action proceeding, common issues between the claim of the representative plaintiff and that of non-resident plaintiffs is a presumptive connecting factor, sufficient to give the court jurisdiction over non-resident plaintiff.” That is to say, common issue can be a connecting factors used by Canadian courts to establish the real and substantial connection, pursuant to Meeking. While the traditional conflicts of law rule says that only the involved parties to the suit can be asserted as a possible connecting factor to avoid the duplication of forum non conveniens.   She also further concluded that recognition of common issues as a presumptive connecting factor in these circumstances does not constitute an unconstitutional expansion of the real and substantial connection test. Therefore, whether unnamed plaintiffs are involved parties in a class litigation remains ambiguous.

However, Leitch J. seems to disagree with Meeking and common issue is being the proper connecting factor of extending the real and substantial connection to assume jurisdiction, according to her judgment in Airia.  She also distinguished the facts in Meeking from Airia, which somehow justified the Meeking decision.

First of all, Leitch J felt that Meeking is a national case. As Currie pointed out, it is easier to certify a national class than a global class. It is also reasonable for a Manitoba resident to expect other Canadian courts will enforce judgement based on the real and substantial connection. Secondly, She also implied that Meeking may be wrongly decided and contrary to Van Breda, because the assertion of jurisdiction based on the sharing of a common issue is equivalent to asserting jurisdiction based on a party being a necessary or property party, a notion rejected in Van Breda.

To Leitch J. the appropriate jurisdiction test to determine whether the court had jurisdiction over absent foreign claimants is probably not the common law real and substantial connection test, as least not the broadly application of the real and substantial connection test.  In para 201 and 202 of Airira, Leitch J concluded that:

[201]      The constitutional limits on the court’s jurisdiction lead me to the conclusion that the real and substantial connection test ought not to be applied to establish jurisdiction over absent foreign claimants.

[202]      Rather, I am satisfied that jurisdiction over class members can only be established if they are present in Ontario or have consented in some way to the jurisdiction of this court.

Recently Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP[32]is a recent Supreme Court of Canada decision revisit the four presumptive factors of assuming jurisdiction including the factors to establish the real and substantial connection test in Van Breda.

This case engages the fourth factor in Van Breda: whether a contract connected with the dispute was made in the province. Provided it is a contract dispute and if the contract is made within the jurisdiction it could be assumed that there is a connection between the claim and the jurisdiction. However, in this case, there are more than one contracts. The standardized Wind-down contract is entered in Ontario while the independent legal advice contracts are entered in different provinces in Canada, mainly in Ontario and Quebec.

Supreme Court of Canada decided that a connection does not necessarily require that an alleged tortfeasor be a party to the contract. The forth factor is applicable even when more than one contracts is involved. The defendant’s liability can flows indirectly from his contractual obligation and the court should take into consideration all the circumstances such as where those contracts are entered, the numbers of parties in different jurisdiction.  If there is one contract linked to the jurisdiction, it is sufficient that the dispute be connected to a contract made in the province or territory where jurisdiction is proposed to be assumed. This merely requires that a defendant’s conduct brings him or her within the scope of the contractual relationship and that the events that give rise to the claim flow from the relationship created by the contract. The fact that another forum may also be connected with the dispute does not undermine the existence of a real and substantial connection in Ontario.

Although the decision is based on its own facts, it underscores that the Court is not ready to change the real and substantial connection test substantially. To be noted that there is a dissenting judgement delivered by Justice Côté. He is in the opinion that jurisdictional issues must be approached with rigour, or else the cardinal values of order, certainty, and fairness will be jeopardized. Côté J disagreed with the broad scope given to Van Breda’s fourth connecting factor by the majority court that the broader approach confers jurisdiction in a case where Ontario simply has no real or substantial connection with the dispute and also muddies an area of the law that should be kept clear and predictable.  [33]

In Excalibur Ontario Court of Appeal Decision summarized by Davis and Mattalo, the majority held that lower court decision by Perell J. erred by failing to find a real and substantial connection between Ontario and the subject matter of the dispute. It also concluded that it was an error in law for the motion judge to consider the reasonable expectations of the non-resident class members in determining whether to take jurisdiction in a global class proceeding,and that he erred in exercising “restraint” when applying the real and substantial connection test, while  Justice Blair disagree with the boarder approach of assuming jurisdiction by expanding the fourth jurisdiction assuming factor in Van Breda, He expressed a view similar to the dissenting judgment by Justice Cote in Lapointe Rosenstein Marchand Melançon LLP, that jurisdiction better be exercised with restraint and rigor.

These cases above provided some guideline for jurisdiction issues arise in class proceedings. However, a case-by-case analysis is always required. All the decisions above are based on their own facts to determine whether there is a real and substantial connection established between the forum and the case. Given a set of slightly different facts, the Court may give different result. For example, if the Airia is not about air freight conspiracy but overselling flight tickets, and if the class member is limited to Canadian plaintiffs, it could be possible be held that the real and substantial connection may be met, and Canadian courts may feel comfortable to take jurisdiction.

The flexible approach to jurisdiction expressed by the Supreme Court of Canada is likely to expand existing case law on how non-Canadian companies can be brought into Canadian class actions, and how Canadian courts assume jurisdiction on non-attorning non-resident claimants based on the real and substantial connection. This could lead to potentially surprising assertions of jurisdiction. The trend seems to be that Canadian courts are more and more willing to exercise jurisdiction simpliciter rather than restrain its judicial power, in particular where there is no clear law regulating it.

Comment on the Application of the Real and Substantial Connection Test in Class Action

After a review of many authorities on how Canadian courts applied the real and substantial test in class action, it has been showed that in general Canadian courts are willing to take a liberal and board approach on assuming jurisdiction on class action cases which involve either absent foreign defendants and/or absent foreign plaintiffs.

However, this approach is not without critique since it raises issues on the constitutional limitation of Canadian courts and the principle of order, fairness and comity. In addition, the real and substantial connection is only adopted in Canada and many other jurisdictions may refuse to exercise some Canadian judgments due to the board approach to assume jurisdiction based on the real and substantial connection. Moreover, as Cote J. stated in Lapointe Rosenstein Marchand Melançon LLP, this area of law is far from being clear and predictable.

Sometimes although given the fact scenario that there might be “connection” to Canadian forum based on the application of the real and substantial connection test, it is not sufficient for a court to assume jurisdiction over an absent foreign claimant if the foreign claimants have no connection (or weak connection) to Canada and has not voluntarily submitted or consented to the jurisdiction. Sometimes there is no reasonable expectation for the foreign claimants or/and foreign defendants to expect the litigation should be conducted in Canada. It could be very unfair to the defendant(s) to bears the burden of rebutting the speculative presentative connecting factors especially after Meeking. There is also a risk that the resulting judgement by Canadian courts would not be recognized and enforced by the court in the jurisdiction where the absent foreign claimant resides.  Especially under the “opt out” regime, there are risks of forum shopping and re-litigation.

In addition, the Canadian conflicts of law rule developed from Morguard, an interprovincial recognition and enforcement case. Moreover, Currie emphasized that it may be easier to justify the assumption of jurisdiction in interprovincial cases than in international cases.  Therefore, global class action cases should be treated differently than the national class action cases.

In the long run, Canadian courts probably want to restrain its jurisdictional power and apply the real and substantial connection test in the interaction of class action proceeding and the conflicts of law rules with rigour.

Pursuant to the current case law, both plaintiffs and defendants have some cases to argue jurisdictional issues in a Canadian class proceeding and the result would probably be influenced by the narrative of the facts. In short, there is no easy way to avoid jurisdictional fights in class proceeding unless there are clear and predictable legislation or case law on it. Definitely it is not achieving the objectives of class proceedings: judicial economy, access to justice and behavioral modification, especially on judicial economy.

Reference

Annual National Class Actions Symposium, Watson, G. D., Cumming, P. A., & Osgoode Hall law School. Osgoode Professional Development Program. (2008). 5th annual symposium on class actions. Toronto, Ont.: Osgoode Hall Law School, York University, Osgoode Professional Development CLE.

Brown, J. P. (2012). Chapter 16 The Perils of Certifying International Class Actions in Canada. In D. e. a. Fairgrieve (Ed.), Extraterritoriality and collective redress, London: Oxford University Press (U.K.). doi:285.

Buckley, T., Charbonneau, R. E., Mercier, J., & Borden Ladner Gervais LLP. (2009). Cross-border class actions in Canada. Lexpert Guide to the Leading US/Canada,

Davis, P., & Mattalo, B. (February 28th, 2017). Uncertain implications for global class certification: The Ontario court of Appeal’s decision in Excalibur special opportunities. Retrieved from http://www.canadianclassactionsmonitor.com/2017/02/uncertain-implications-for-global-class-certification-the-ontario-court-of-appeals-decision-in-excalibur-special-opportunities/

Kent, D. W., & McMillan Binch Mendelsohn LLP (Toronto). (Spring 2006). Cross-border class action settlements:  unwilling litigants in the U.S. courts. American Bar Association International Committee | ABA Section of Antitrust Law,

Neave, D. T. (2015). Being neighborly: Canada welcomes foreign defendants in class proceedings. FDCC Quarterly, (Winter), 117.

Winkler, W., Brown, J. P., Christa, L., Gertner, E., Harris, D., Loveday, C., . . . Walker, J. Guidelines for recognizing and enforcing foreign judgments for collective redress – A report of the international bar association task force on international procedures and protocols for collective redress.

Walker, Janet, Recognizing Multijurisdiction Class Action Judgments within Canada: Key Questions – Suggested Answers (May 1, 2008). Canadian Business Law Journal, Vol. 46, pp. 450-469, 2008.

Lowenstein, Larry & Paterson, Mary & Carson, Robert, Supreme Court of Canada Revamps the Test for Jurisdiction over Foreign Defendants (April 19, 2012), retrieved from https://www.osler.com/en/resources/regulations/2012/supreme-court-of-canada-revamps-the-test-for-juris.

Norton Rose Fulbright Canada LL, Club Resorts Ltd. v Van Breda: the Supreme Court of Canada considers the test for jurisdiction (April 19, 2012), retrieved from http://www.lexology.com/library/detail.aspx?g=04aa1f53-e47e-43e7-90dd-7c4a43967870

Morguard Investments Ltd. v. De Savoye, [1990] 3 SCR 1077, 1990 CanLII 29 (SCC).

Muscutt v. Courcelles, 2002 CanLII 44957 (ON CA), 60 OR (3d) 20; 213 DLR (4th) 577; 13 CCLT (3d) 161; [2002] CarswellOnt 1756; [2002] OJ No 2128 (QL); 114 ACWS (3d) 634; 160 OAC 1; 26 CPC (5th) 206.

 Moran v. Pyle National (Canada) Ltd., [1975] SCR 393, 1973 CanLII 192 (SCC)

Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP

Ramdath v. George Brown College, 2010 ONSC 2019 (CanLII)

Excalibur Special Opportunities LP v. Schwartz Levitsky Feldman LLP, 2016 ONCA 916

Currie v. McDonald’s Restaurants of Canada Ltd., 2005 CanLII 3360 (ON CA)

Airia Brands v Air Canada, 2015 ONSC 5332

Meeking v. Cash Store Inc. et al., 2013 MBCA 81 (CanLII), 367 DLR (4th) 684; 299 Man R (2d) 109.

Silver v. Imax Corporation, 2009 CanLII 72334 (ON SC).

McCann v. CP Ships Ltd., [2009] O.J. No. 5182 (S.C.J.).

McKenna v. Gammon Gold Inc., 2010 ONSC 1591 (CanLII), [2010] CarswellOnt 1460; [2010] OJ No 1057 (QL); 88 CPC (6th) 27

Dobbie v. Arctic Glacier Income Fund, 2011 ONSC 25 (CanLII), [2011] O.J. No. 932 (S.C.J.).

Club Resorts Ltd. v. Van Breda, [2012] 1 SCR 572, 2012 SCC 17.

Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592.

AG Armeno Mines and Minerals Inc. v. Newmont Gold Co., 2000 BCCA 405.

Hollick v. Toronto (City), [2001] 3 SCR 158, 2001 SCC 68.

[1] Morguard Investments Ltd. v. De Savoye, [1990] 3 SCR 1077, 1990 CanLII 29 (SCC).

[2] Muscutt v. Courcelles, 2002 CanLII 44957 (ON CA), 60 OR (3d) 20; 213 DLR (4th) 577; 13 CCLT (3d) 161; [2002] CarswellOnt 1756; [2002] OJ No 2128 (QL); 114 ACWS (3d) 634; 160 OAC 1; 26 CPC (5th) 206.

[3] Moran v. Pyle National (Canada) Ltd., [1975] SCR 393, 1973 CanLII 192 (SCC), at page 394.

[4] Club Resorts Ltd. v. Van Breda, 2010 ONCA 84;  [2012] 1 SCR 572, 2012 SCC 17.

[5] Club Resorts Ltd. v. Van Breda, [2012] 1 SCR 572, 2012 SCC 17

[6] Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c 28, s. 3, 6 and 10.

3 A court has territorial competence in a proceeding that is brought against a person only if

1. that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim,
2. during the course of the proceeding that person submits to the court’s jurisdiction,
3. there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding,
4. that person is ordinarily resident in British Columbia at the time of the commencement of the proceeding, or
5. there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.

6  A court that under section 3 lacks territorial competence in a proceeding may hear the proceeding despite that section if it considers that

1. there is no court outside British Columbia in which the plaintiff can commence the proceeding, or
2. the commencement of the proceeding in a court outside British Columbia cannot reasonably be required.

10  Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based, a real and substantial connection between British Columbia and those facts is presumed to exist if the proceeding

1. is brought to enforce, assert, declare or determine proprietary or possessory rights or a security interest in property in British Columbia that is immovable or movable property,
2. concerns the administration of the estate of a deceased person in relation to

1. immovable property in British Columbia of the deceased person, or
2. movable property anywhere of the deceased person if at the time of death he or she was ordinarily resident in British Columbia,

3. is brought to interpret, rectify, set aside or enforce any deed, will, contract or other instrument in relation to

1. property in British Columbia that is immovable or movable property, or
2. movable property anywhere of a deceased person who at the time of death was ordinarily resident in British Columbia,

4. is brought against a trustee in relation to the carrying out of a trust in any of the following circumstances:

1. the trust assets include property in British Columbia that is immovable or movable property and the relief claimed is only as to that property;
2. that trustee is ordinarily resident in British Columbia;
3. the administration of the trust is principally carried on in British Columbia;
4. by the express terms of a trust document, the trust is governed by the law of British Columbia,

5. concerns contractual obligations, and

1. the contractual obligations, to a substantial extent, were to be performed in British Columbia,
2. by its express terms, the contract is governed by the law of British Columbia, or
3. the contract

1. is for the purchase of property, services or both, for use other than in the course of the purchaser’s trade or profession, and
2. resulted from a solicitation of business in British Columbia by or on behalf of the seller,

6. concerns restitutionary obligations that, to a substantial extent, arose in British Columbia,
7. concerns a tort committed in British Columbia,
8. concerns a business carried on in British Columbia,
9. is a claim for an injunction ordering a party to do or refrain from doing anything

1. in British Columbia, or
2. In relation to property in British Columbia that is immovable or movable property,

10. is for a determination of the personal status or capacity of a person who is ordinarily resident in British Columbia,
11. is for enforcement of a judgment of a court made in or outside British Columbia or an arbitral award made in or outside British Columbia, or
12. is for the recovery of taxes or other indebtedness and is brought by the government of British Columbia or by a local authority in British Columbia.

[7] Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592.

[8] AG Armeno Mines and Minerals Inc. v. Newmont Gold Co., 2000 BCCA 405.

[9]Hollick v. Toronto (City), [2001] 3 SCR 158, 2001 SCC 68.

[10] Club Resorts Ltd. v. Van Breda, [2012] 1 SCR 572, 2012 SCC 17 (CanLII), at para 95.

[11] Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c 28, s. 11;

Discretion as to the exercise of territorial competence

11  (1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including

(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,

(b) the law to be applied to issues in the proceeding,

(c) the desirability of avoiding multiplicity of legal proceedings,

(d) the desirability of avoiding conflicting decisions in different courts,

(e) the enforcement of an eventual judgment, and

(f) the fair and efficient working of the Canadian legal system as a whole.

[12] Amchem Products Inc. v. British Columbia (Workers’ Compensation Board) (1993), 102 DLR (4^th) 96 (SCC).

[13] Spiliada Maritime Corp. v. Cansulex Ltd.; “Spiliada” (The), [1987] A.C. 460.

[14] Currie v. McDonald’s Restaurants of Canada Ltd., 2005 CanLII 3360 (ON CA)

[15] Currie v. McDonald’s Restaurants of Canada Ltd., 2005 CanLII 3360 (ON CA), at para 20.

[16] Currie, at para 8.

[17] Currie v. McDonald’s Restaurants of Canada Ltd., 2005 CanLII 3360 (ON CA), at Para 25.

[18] Silver v. Imax Corporation, 2009 CanLII 72334 (ON SC).

[19] McCann v. CP Ships Ltd., [2009] O.J. No. 5182 (S.C.J.).

[20] McKenna v. Gammon Gold Inc., 2010 ONSC 1591 (CanLII), [2010] CarswellOnt 1460; [2010] OJ No 1057 (QL); 88 CPC (6th) 27

[21] Dobbie v. Arctic Glacier Income Fund, 2011 ONSC 25 (CanLII), [2011] O.J. No. 932 (S.C.J.).

[22] Ramdath v. George Brown College, 2010 ONSC 2019.

[23] Ramdath, at para 65.

[24] Meeking v. Cash Store Inc. et al., 2013 MBCA 81 (CanLII), 367 DLR (4th) 684; 299 Man R (2d) 109.

[25] Club Resorts Ltd. v. Van Breda, 2010 ONCA 84, at para 109.

[26] Airia Brands v Air Canada, 2015 ONSC 5332

[27] Airia,  at para 202.

[28] Excalibur Special Opportunities LP v. Schwartz Levitsky Feldman LLP, 2016 ONCA 916; 2014 ONSC 4118 at para. 110 (“Excalibur motion”).

[29] Currie v. McDonald’s Restaurants of Canada Ltd., 2005 CanLII 3360 (ON CA), at para 30

[30] Ramdath v. George Brown College, 2010 ONSC 2019 (CanLII), at para 71

[31] Airia, para 148.

[32] Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, [2016] 1 SCR 851, 2016 SCC 30.

[33]  Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, [2016] 1 SCR 851, 2016 SCC 30, at para 102.