Our Aging Cpa: It’s Time for Ontario to 'opt-in' to a Modern Global Class-actions Framework

• Author: Madeleine Brown
• Pages: 395-425

395

OUR AGING

CPA

: IT’S TIME

FOR ONTARIO TO “OPT-IN”

TO A MODERN GLOBAL

CLASS-ACTIONS FRA MEWORK

Madeleine Brow n

Abstract: Notwithstanding the fact that “international” is

the new standard for many businesses, Canadian courts con-

tinue to struggle w ith how to properly assert jurisdiction over

claimants in an international class action. The current legis-

lative framework provides no meaningful guidance, and the

current test was not designed to handle the unique jurisdic-

tional issues of a global class. The result is an unpredictable,

unstable body of caselaw that f‌lies in the face of the const itu-

tional principles of order, fairness, and comity. It is time for

legislative intervention.

I suggest that the most appropri ate model would be a hy-

brid regime that requires domestic claimant s to opt out, but

foreign (that is, non-Canadian) claimants to opt in. A hybrid

model will also ensure that Canada’s jurisdictional rules per-

taining to foreign cl aimants are in line with established inter-

nationally accepted norms, and bring Ontario’s regime up to

date with recent developments in t he European Union and the

United Kingdom in anticipation of the e xpanding role of class

action and collective settlement regimes beyond the bounds

of North America. It would also prov ide greater protections to

Canadian s where other countries, such as the United States,

presume to include Canadi ans in foreign opt-out proceedings

without the consent of the Can adian class members. In short,

a hybrid model would introduce a welcome level of clarity i nto

the jurisdict ional analysis of a global class.

CCAR 13-2.indb 395 10/30/2018 11:42:09 AM

CCAR 13-2.indb 396 10/30/2018 11:42:09 AM