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 fairness.
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.
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