Can a class settlement that is entered into Ontario, and that
purports to be inter-provincial in effect, be enforced in
Manitoba? The answer – as a recent Manitoba Court of
Appeal decision makes clear — entails a two-step
analysis. First, the Ontario court must have properly assumed
jurisdiction over the non-resident class members. Second, the
Ontario court must have followed the principles of procedural
justice, as the Supreme Court of Canada recognized in Canada
Post Corp. v. Lepine, 2009 SCC 16. My earlier
post on Meeking v. The Cash Store Inc., 2013 MBCA 81, dealt with the issue of
jurisdiction. This post will address the issue of procedural
The relevant facts of the decision in Meeking are as
follows. A class proceeding pertaining to broker fees alleged
to have been unlawfully charged was settled in Ontario. The
settlement was inter-provincial in its intended scope. The
Cash Store and Instaloans were parties to the settlement. The
settlement also provided for an extensive notice program. A
Manitoba resident who was ostensibly a part of the Ontario-based,
inter-provincial settlement then commenced a parallel class
proceeding in Manitoba on behalf of Manitoba residents. He
had not "opted out" of the Ontario settlement and claimed
not to have any prior notice of the settlement. The Cash
Store and Instaloans sought to enforce the Ontario settlement in
Manitoba and to enjoin the Manitoba proceeding.
After ruling that the Ontario court properly exercised
jurisdiction over non-resident class members, the Manitoba Court of
Appeal turned its attention to the issue of the adequacy and
fairness of the procedures followed by the Ontario court in issuing
the settlement order. Significantly, the court ruled that the
notice program authorized by the Ontario court was deficient in two
ways. First, the notice referred only to The Cash Store in
the heading, even though the settlement involved Instaloans as
well. The court found that a prospective reader who had
obtained a loan from Instaloans would not read the notice further
after reading a heading mentioning only The Cash Store.
Second, although the Ontario settlement was intended to be
comprehensive, the notice only referred generally to "payday
loans" and not specifically to other types of loans which were
also at issue – namely, so-called "signature" loans
and "title" loans. Accordingly, the Manitoba Court
of Appeal held that the Ontario settlement was not enforceable in
Manitoba regarding Instaloans, and with respect to
"signature" and "title" loans. However,
the court refused to comment on the enforceability of the Ontario
settlement in other provinces.
The decision in Meeking highlights the importance of
drafting notice documents in a diligent and comprehensive manner,
as the extent of its "enforceability" will turn on the
extent of its clarity and comprehensiveness.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
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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