Is an Ontario-based inter-provincial class settlement
enforceable in Manitoba? The answer depends in part on
whether an Ontario court can properly exercise jurisdiction over
non-resident class members. The Manitoba Court of Appeal
recently provided guidance on these important issues in the first
appellate case to comprehensively address these questions since the
Supreme Court of Canada revamped the test for jurisdiction in its
Van Breda decision.
The pertinent facts of the decision in Meeking v. Cash Store Inc., 2013 MBCA 81 were
as follows. A class action relating to broker fees that were
alleged to have been charged by small loan businesses was
commenced and then certified in Ontario. The proceeding was then
resolved by a court-approved settlement in Ontario which purported
to be binding on Manitoba claimants as well. A Manitoba
resident class member who was ostensibly a part of the
Ontario-based settlement then initiated a similar class
proceeding in Manitoba on behalf of Manitoba residents. He had not
"opted out" of the Ontario settlement (indeed, he claimed
not to have been aware of it).
In determining whether the Ontario settlement was binding on the
Manitoba plaintiff, the Court first had to determine the threshold
issue of whether the Ontario Court properly assumed jurisdiction
over Manitoba residents. The Supreme Court of Canada in
Van Breda had enunciated four factors which give rise to
"presumptive" jurisdiction over a defendant. One of those
factors is whether the defendant carries on business in the
province. The defendants in the instant case fulfilled this
condition. However, the Manitoba Court of Appeal, in recognizing
the unique nature of class proceedings, ruled that the presence of
this factor alone is not sufficient to give rise to jurisdiction
over non-residents class members.
However, as the four factors identified in Van Breda
are not exhaustive, the Manitoba Court of Appeal went on to
recognize a new presumptive connecting factor which can furnish
jurisdiction over non-residents in class proceedings, namely the
presence of common issues across the class.
The Court identified four reasons for the recognition of this
"new" presumptive jurisdiction-conferring factor. First,
this factor, like the four existing factors set out by the Supreme Court of Canada in Van Breda,
"deals with the subject matter of the wrongdoing" (at
para. 95). Second, earlier pre-Van Breda jurisprudence had treated
common issues as "a factor sufficient to satisfy the real and
substantial connection test within Canada" (at para. 95).
Third, the Uniform Law Conference of Canada's Committee on the
National Class and Related Interjurisdictional Issues" had
"strongly endorse[d] the concept of national class actions
with opt-out clauses" (at para. 95). Fourth, class action
legislation in various provinces allow for national class actions
which extend to non-resident plaintiffs, subject to opt-out
clauses" (at para. 95).
Accordingly, the Court ruled that "where the Court has
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" (at para.
The ruling in Meeking will facilitate attempts by class
action defendants to settle inter-provincial class actions with
inter-provincial effect — that is, in a way which binds
non-resident members — without being met with successful
subsequent jurisdictional challenges.
In a future post, I will address the aspects of the
Meeking decision pertaining to procedural measures which
can be taken by settling defendants to help improve the likelihood
of enforcing inter-provincial class settlements.
The McCarthy Tétrault Opinions Group consists of
members of the firm's litigation department whose practices
focus on written advocacy and the provision of strategic advice and
opinions in the context of complex business disputes and
transactions. The members of the Opinions Group are Anthony
Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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