Ontario Civil

Conflict of Laws


Proposed class action regarding global price fixing conspiracy was stayed as it related to absent foreign claimants

Global price fixing conspiracy was alleged. Defendants other than Air Canada defendants were foreign companies resident and domiciled outside of Canada. Action was certified class proceeding for settlement purposes and none of defendants opposed motion. Plaintiffs brought motion to certify action as class proceeding. Class proposed by plaintiffs included claimants from more than 30 different countries. Defendants sought declaration that court did not have jurisdiction over parties who were absent foreign claimants. Defendants sought order staying proposed class action as it related to absent foreign claimants. Motion granted. Action was stayed in relation to absent foreign claimants. Court did not have jurisdiction simpliciter over absent foreign claimants. Potential for multiplicity of further actions by absent foreign claimants was inconsistent with objectives of class proceedings and contrary to principles of order and fairness. Judgment of court would not be enforced outside of Canada and defendants would be exposed to potential for double recovery of absent foreign claimants. Even if aggregate damage award was made, Canadian court could not resolve or prevent potential for double recovery. Asserting jurisdiction over absent foreign claimants in these circumstances where court could not reasonably expect that its judgment would be recognized in foreign countries would offend comity. Consent certification for settlement purposes could not have effect on determination of issues raised on jurisdiction motion. Approval of settlement and its notice program was irrelevant to reasonable expectations of absent foreign claimants vis-a-vis defendants and could not prejudice defendants. Expectations of absent foreign claimants were more likely in accordance with laws of their own countries and they would not expect that their rights would be determined in current proceeding. Fact of adequate representation of rights and procedural fairness became relevant only after court concluded it had jurisdiction. Real and substantial connection test was not met. Ontario was forum non-conveniens.

Airia Brands Inc. v. Air Canada (Aug. 26, 2015, Ont. S.C.J., L.C. Leitch J., File No. 50389CP) 257 A.C.W.S. (3d) 273.

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