Absent Foreign Claimants in Canadian Class Actions: Where to After Airia Brands?

AuthorPaul-Erik Veel and Graham Henry
Paul-Erik Veel and Graham Henry
Abstract: If a tort is committed on an inter national scale, when
can a Canadi an court assume juri sdiction in a class proceed-
ing over class members who reside outside of Canada? The
Ontario Court of Appeal’s recent decision in Airia Brands Inc
v Air Canada provided a new framework for answer ing this
question but, in doing so, expanded Ontario’s jurisdiction
over absent foreign claimants to untenably broad levels. This
new test allows on its face for the assumption of jurisdiction
even when there are no direct connect ions between the absent
foreign claimant s and the forum. Rather, it is suff‌icient that
a court have jurisd iction over both the representative plain-
tiff and the defenda nts, and that the representative plaintiffs
share common issues of fact or law with the absent foreign
claimants. This signif‌ies an exceedingly broad approach to
the assumption of juri sdiction over absent foreign claimants
and a radical ex pansion of Canadian courts’ jur isdiction over
class proceedings. If applied literally, this test will create sig-
nif‌icant problems for a wide range of cla ss actions and would
be inconsistent with norms of comity. Going forward, courts
ought to consider the implications of this test and search for
practical judicial solutions that can temper its negative im-
pacts. These solutions may take the form of a modif‌ied test
that requires g reater linkage between absent foreign claim-
ants and the forum or, alternat ively, a more robust application
of the forum non convenie ns analysis subsequent to t he f‌inding
of jurisd iction.
Paul-Erik Veel and Graham Henry*
It is a trite observation that the world has become extremely globalized.
International trade f‌lows affect virtually all consumer products and m any
services. Inte rnational f‌inancial t ransactions play a signif‌ica nt role in the
global economy.
Along with that increase in globalization comes an increasing num-
ber of disputes that touch on multiple jurisdictions. International com-
merce and f‌inance have cha llenged the existing rules th at courts apply as
to when they assume jurisdiction over disputes. In the past twenty-f‌ive
years in part icular, Canadian pr ivate international law h as undergone a
sea change, which ha s expanded both courts’ juri sdiction over disputes as
well as the wil lingness to recognize a nd enforce foreign judgments. While
the rules relating to jurisdiction in d isputes between only a hand ful of
parties are now well-under stood, the rules regarding juri sdictional issues
in class actions are in a much greater state of f‌lux. Class actions, by their
nature, raise a whole new set of problems for private inter national law.
Historically, issues of jur isdiction in the private international law
sense were almost alway s raised by defendants. There was seldom any issue
with the court hav ing jurisdict ion over the plaintiff, as the fact that the
plaintiff brought a claim in a particula r court was suff‌icient to constitute
attornment and grant that court jurisdiction. As a result, the doctrines
of private international law, particularly as they have developed over
the last quarter century, have been primar ily focused on circumst ances
* Paul-Erik Veel is a par tner at Lenczner Slaght and a lect urer in law and eco-
nomics at the Univer sity of Toronto. Graham Hen ry is an articling st udent at
Lenczner Slag ht. The views and opinions contai ned in this article ar e those of
the authors, and do not repre sent the views of Lenczner Sl aght or its clients.
Any errors rem ain those of the authors alone.

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