Ontario and Her Sisters: Should Full Faith and Credit Apply to the National Class?

• Author: Celeste Poltak
• Pages: 437-465

437

ONTARIO AND HER SISTERS:

SHOULD FULL FAITH AND CREDIT APPLY TO

THE NATIONAL CLASS?

Celeste Poltak1

Whether the result reached in an Ontario court in a class proceeding

will bind members of the class in other provinces who remained passive

and simply did not opt out, remains to be seen.2

A. INTRODUCTION

The prescience of Justice Zuber’s words could not have been more fully

realized. More than a decade later, the binding force of a class proceed-

ings judgment on out-of-province class members, in large measure, still

“remains to be seen.” The question is only further complicated by the

spectre of enforcing international class proceedings judgments in Canada.

Given the recent proliferation of class proceedings in Canada and the

U.S., Canadian courts are sure to face these complex issues surround-

ing jurisdiction, recognition, and enforcement with growing frequency.

While there is a wealth of private conflicts of law jurisprudence generally

governing such questions, courts have been grappling with whether these

principles should apply in their totality to the special nature of class pro-

ceedings and the conundrum of the absent plaintiff.

The question that continues to vex the courts and practitioners alike

is whether there is any principled reason to differentiate between the

binding nature of a national class judgment and a strictly intra-provincial

one. Given the constitutional underpinnings of the Canadian federation

and the Supreme Court of Canada’s pronouncements in private conflicts

of law cases generally, there is a strong basis for arguing that there is no

principled basis on which to differentiate between judgments that bind

1 Celeste Poltak, LL.M.(London School of Economics & Political Science), of the

Bars of Ontario and Alberta; Associate, Koskie Minsky LLP, Toronto.

2 Nantais v. Telectronics Proprietary (Canada) Ltd. (1995), 129 D.L.R. (4th) 110

at 113 (Ont. Ct. Gen. Div), Zuber J., refusing leave to appeal from (1995), 127

D.L.R. (4th) 552, leave to appeal to C.A. refused (1996), 7 C.P.C. (4th) 206

[Nantais].

438 THE CANADIAN CLASS ACTION REVIEW

extra-provincial class members and those that bind only intra-provincial

class members. While the enforcement of international class proceedings

judgments raises different concerns, full faith and credit should apply to

the recognition and enforcement of provincial class proceedings judg-

ments binding Canadian non-residents.

B. RECOGNITION AND ENFORCEMENT OF

JUDGMENTS GENERALLY

Canadian courts have determined that it is “eminently sensible” to

have one court decide the question of liability “once and for all, for

all Canadians.”3 The considerations underpinning the rules of comity

“apply with much greater force between the units of a federal state

[than internationally] ... our courts have not hesitated to cooperate with

courts of other provinces where necessary to meet the ends of justice.”4

Jurisdiction should be acknowledged by sister provinces as proper where

the forum was a reasonable place to hear the action, taking into account

all the circumstances, including judicial efficiency and the legitimate

interests of the parties.5

In Canada, there exists a constitutional imperative to give full faith

and credit to the courts of other provinces. A “more cooperative spirit in

recognition and enforcement”6 of judgments exists as between Canadian

provinces than does between Canada and foreign states. As Justice

La Forest determined in Hunt, this is due to the following factors: (1)

common citizenship; (2) interprovincial mobility of citizens; (3) the com-

mon market created by the union as reflected in sections 91(2), 91(10),

121 and the peace, order, and good government clause; and (4) the essen-

tial unitary structure of our judicial system with the Supreme Court of

Canada at its apex.7

Therefore, there is a presumption in favour of enforcement of sis-

ter provinces’ judgments and the burden to enforce such judgments is

3 Ibid. at 567, Brockenshire J. (cited to 127 D.L.R.).

4 Morguard Investments Limited v. De Savoye, [1990] 3 S.C.R. 1077 at 1098–99,

La Forest J. [Morguard], also relying on Re Wismer and Javelin International Ltd

(1982), 136 D.L.R. (3d) 647 (Ont. H.C.J.); Re Mulroney and Coates (1986), 27

D.L.R. (4th) 118 (Ont. H.C.J.); Touche Ross Ltd. v. Sorrel Resources Ltd. (1987),

11 B.C.L.R. (2d) 184 (S.C.); Roglass Consultants Inc. v. Kennedy, Lock and

Kennedy (1984), 65 B.C.L.R. 393 (C.A.).

5 Beals v. Saldhana, [2003] 3 S.C.R. 416 at para. 181, Lebel J. [Beals].

6 Hunt v. P & N plc, [1993] 4 S.C.R. 289 at para. 54 [Hunt].

7 Ibid.