Meeking v. Cash Store Inc. et al.,

• Jurisdiction: Manitoba
• Judge: Chartier, Beard and Cameron, JJ.A.
• Neutral Citation: 2013 MBCA 81
• Citation: 2013 MBCA 81,(2013), 299 Man.R.(2d) 109 (CA),367 DLR (4th) 684,299 Man R (2d) 109,299 Man.R.(2d) 109,367 D.L.R. (4th) 684,299 ManR(2d) 109,(2013), 299 ManR(2d) 109 (CA)
• Date: 09 September 2013
• Court: Court of Appeal (Manitoba)

Meeking v. Cash Store Inc. (2013), 299 Man.R.(2d) 109 (CA);

      590 W.A.C. 109

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. SE.018

Scott Meeking, as Representative Plaintiff (plaintiff/respondent) v. The Cash Store Inc., 1152919 Alberta Ltd., carrying on business as Instaloans, and The Cash Store Financial Services Inc. (defendants/appellants)

(AI 12-30-07812; 2013 MBCA 81)

Indexed As: Meeking v. Cash Store Inc. et al.

Manitoba Court of Appeal

Chartier, Beard and Cameron, JJ.A.

September 9, 2013.

Summary:

Meeking sought to certify a proceeding as a class proceeding under s. 4 of the Class Proceedings Act. Similar proceedings had already been brought in Ontario, British Columbia and Alberta concerning broker fees collected in the defendants' loan business. On December 2, 2008, the Ontario Superior Court of Justice had approved the settlement of the Ontario class proceeding on behalf of all persons who obtained a "payday loan" from any Cash Store or Instaloans location in Canada, other than British Columbia and Alberta, on or before December 2, 2008. The order approving the settlement purported to release the defendants in that proceeding and Instaloans from any liability to persons who obtained such loans, including persons in Manitoba, who did not file an opt-out form under the settlement. The defendants sought an order recognizing and enforcing the Ontario judgment in Manitoba.

The Manitoba Court of Queen's Bench, in a decision reported at 276 Man.R.(2d) 142, held that the Ontario judgment should be recognized and enforced in Manitoba. However, it was not enforceable respecting any loans obtained from Instaloans or any signature and title loans obtained from The Cash Store, because of deficiencies in the notice given to Manitoba class members. Meeking appealed. The defendants cross-appealed.

The Manitoba Court of Appeal dismissed the appeal and cross-appeal.

Conflict of Laws - Topic 605

Jurisdiction - General principles - Class actions - The Manitoba Court of Appeal discussed the real and substantial connection test for the assumption of jurisdiction in the context of class actions - The court concluded that "...  in circumstances where the court has territorial jurisdiction over both the defendant and the representative plaintiff in a 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 plaintiffs." - See paragraphs 48 to 97.

Conflict of Laws - Topic 605

Jurisdiction - General principles - Class actions - This appeal concerned: (i) whether a court in Ontario had jurisdiction to certify a class action and approve a corresponding settlement that purported to be binding on Manitoba residents where the transactions giving rise to the claim occurred wholly within Manitoba and, if so, (ii) the conditions which had to be met before the settlement was recognized and enforced in Manitoba - The Manitoba Court of Appeal examined the nature of class actions, the evolution of the jurisprudence regarding the assertion of jurisdiction by a provincial superior court and the recognition and enforcement of that assertion by the court of another jurisdiction - As these issues had to be resolved within the confines of private international law and Canadian constitutional law, the court began there - See paragraphs 34 to 103.

Conflict of Laws - Topic 4986

Property - Trusts - Real and substantial connection - [See first Conflict of Laws - Topic 605 ].

Conflict of Laws - Topic 6605

Foreign judgments - General - Recognition of judgments of another province - Meeking sought to certify a proceeding as a class proceeding - Similar proceedings had already been brought in Ontario, British Columbia and Alberta concerning broker fees collected in the defendants' loan business - On December 2, 2008, the Ontario Superior Court of Justice had approved the settlement of the Ontario class proceeding on behalf of all persons who obtained a "payday loan" from any Cash Store or Instaloans location in Canada, other than British Columbia and Alberta, on or before December 2, 2008 - The order approving the settlement purported to release the defendants in that proceeding and Instaloans from any liability to persons who obtained such loans, including persons in Manitoba, who did not file an opt-out form under the settlement - The defendants sought an order recognizing and enforcing the Ontario judgment in Manitoba - A motion judge held that the Ontario judgment should be recognized and enforced in Manitoba - However, it was not enforceable respecting any loans obtained from Instaloans or any signature and title loans obtained from The Cash Store, because of deficiencies in the notice given to Manitoba class members - Meeking appealed and the defendants cross-appealed - The Manitoba Court of Appeal held that the question of whether the motion judge erred in determining that the Ontario Court properly assumed jurisdiction over non-resident Manitobans in the Ontario class action was a question of law, and the standard of review was correctness - However, the ultimate determination by the judge conducting the recognition and enforcement proceeding as to whether there had been procedural fairness, was entitled to deference (i.e., issues of whether, if the Ontario Court properly assumed jurisdiction, did the motion judge err in finding that: the Ontario settlement judgment should not be enforced against Manitoba class members respecting loans borrowed from Instaloans; and the Ontario settlement judgment should not be enforced against Manitoba class members respecting Signature and Title Loans) - See paragraphs 104, 109 and 110.

Conflict of Laws - Topic 6605

Foreign judgments - General - Recognition of judgments of another province - Meeking sought to certify a proceeding as a class proceeding - Similar proceedings had already been brought in Ontario, British Columbia and Alberta concerning broker fees collected in the defendants' loan business - On December 2, 2008, the Ontario Superior Court of Justice had approved the settlement of the Ontario class proceeding on behalf of all persons who obtained a "payday loan" from any Cash Store or Instaloans location in Canada, other than British Columbia and Alberta, on or before December 2, 2008 - The order approving the settlement purported to release the defendants in that proceeding and Instaloans from any liability to persons who obtained such loans, including persons in Manitoba, who did not file an opt-out form under the settlement - The defendants sought an order recognizing and enforcing the Ontario judgment in Manitoba - A motion judge held that the Ontario judgment should be recognized and enforced in Manitoba - However, it was not enforceable respecting any loans obtained from Instaloans or any signature and title loans obtained from The Cash Store, because of deficiencies in the notice given to Manitoba class members - Meeking appealed and the defendants cross-appealed - The Manitoba Court of Appeal dismissed the appeal and cross-appeal.

Conflict of Laws - Topic 6605

Foreign judgments - General - Recognition of judgments of another province - [See both Conflict of Laws - Topic 605 ].

Conflict of Laws - Topic 7285

Contracts - Jurisdiction - Real and substantial connection - [See first Conflict of Laws - Topic 605 ].

Conflict of Laws - Topic 7605

Torts - Jurisdiction - Real and substantial connection - [See first Conflict of Laws - Topic 605 ].

Practice - Topic 209.8

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Notice to members of class - [See second Conflict of Laws - Topic 6605 ].

Practice - Topic 8874

Appeals - Leave to appeal - From question of law - [See first Conflict of Laws - Topic 6605 ].

Cases Noticed:

McCutcheon v. Cash Store Inc. et al., [2006] O.T.C. 424; 80 O.R.(3d) 644 (Sup. Ct.), refd to. [para. 4].

Canada Post Corp. v. Lépine, [2009] 1 S.C.R. 549; 387 N.R. 91; 2009 SCC 16, refd to. [para. 11].

Van Breda et al. v. Village Resorts Ltd. et al., [2012] 1 S.C.R. 572; 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, appld. [para. 23].

Bisaillon v. Concordia University, [2006] 1 S.C.R. 666; 348 N.R. 201; 2006 SCC 19, consd. [para. 25].

Dell Computer Corp. v. Union des consommateurs et al., [2007] 2 S.C.R. 801; 366 N.R. 1; 2007 SCC 34, consd. [para. 25].

Naken et al. v. General Motors of Canada Ltd. et al., [1983] 1 S.C.R. 72; 46 N.R. 139, refd to. [para. 40].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 41].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81; [1991] 2 W.W.R. 217; 76 D.L.R.(4th) 256; 52 B.C.L.R.(2d) 160, refd to. [para. 49].

Hunt v. Lac d'Amiante du Québec Ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161; 109 D.L.R.(4th) 16, refd to. [para. 52].

Currie v. McDonald's Restaurants of Canada Ltd. et al. (2005), 195 O.A.C. 244; 74 O.R.(3d) 321 (C.A.), refd to. [para. 60].

Baxter v. Canada (Attorney General), [2005] O.T.C. 391 (S.C.), refd to. [para. 78].

Parsons v. Canadian Red Cross Society - see Kotyk Estate et al. v. Canadian Red Cross Society.

Kotyk Estate et al. v. Canadian Red Cross Society, [2013] O.T.C. Uned. 3053; 2013 ONSC 3053, refd to. [para. 83].

Wilson v. Servier Canada Inc. et al., [2002] O.T.C. 383; 59 O.R.(3d) 656 (Sup. Ct.), refd to. [para. 84].

Thorpe v. Honda Canada Inc. (2011), 373 Sask.R. 71; 2011 SKQB 72, refd to. [para. 85].

Tanfield v. Irvine (1826), 2 Russ. 149, refd to. [para. 90].

Authors and Works Noticed:

Halsbury's Laws of England (2nd Ed. 1933), vol. 8, para. 1173 [para. 87].

Hogg, Peter W., and McKee, S. Gordon, Are National Class Actions Constitutional? (2010), 26 N.J.C.L. 279, p. 284 [para. 79].

Manitoba Law Reform Commission, Class Proceedings, No. 100 (January 1999), pp. 6, 7 [para. 38].

Uniform Law Conference of Canada, Civil Law Section (March 9, 2005), Report of the Uniform Law Conference of Canada's Committee on the National Class and Related Interjurisdictional Issues: Background, Analysis and Recommendations, online: Branch MacMaster LLP, Barristers & Solicitors < http://www.branchmacmaster .com/storage/articles/ULCC_Report.pdf>, generally [para. 95].

White, R.W., Equitable Obligations in Private International Law: The Choice of Law (1986), 11 Sydney L. Rev. 92, p. 96 [para. 89].

Counsel:

P.R. Bennett, M.W. Mounteer and G.M. Wood, for the appellants;

T. Pinos and J. Beitchman, for the respondent.

This appeal was heard on January 29 and 30, 2013, by Chartier, Beard and Cameron, JJ.A., of the Manitoba Court of Appeal. Cameron, J.A. delivered the following decision for the court on September 9, 2013.