Law Times

Page 10 April 16, 2018 • lAw Times www.lawtimesnews.com Victory for access to justice, says lawyer Panel overturns decision to stay global class action BY MICHAEL MCKIERNAN For Law Times T he Court of Appeal for Ontario struck a blow for access to justice when it allowed a global class action to proceed here, de- spite the fact it involves absent foreign claimants, according to one of the lawyers spearheading the claim. In Airia Brands Inc. v. Air Canada, a unanimous three- judge panel of the province's top court overturned a motion judge's decision to stay the action as it related to the absent foreign claimants, ruling that Ontario could assume jurisdiction over them, even without assurances that the court's final disposition would be recognized abroad. Linda Visser, a partner in the class actions practice group at Siskinds LLP in London, Ont., acts for the plaintiffs, a group of businesses alleging price fix- ing in the air freight shipping industry by a number of major airlines. "It's very important from an access to justice point of view for class members to be able to bring a claim in Canada, since we are one of only a handful of countries that allows class ac- tions," she says. "Without some form of collective redress, it's virtually impossible for parties in those countries to pursue a claim because it's so expensive. "The initial decision created some uncertainty in the law with regard to the possibility of an international class, so we were very pleased that the ap- peal court has clarified matters," Visser adds. But defence-side lawyers say that allowing claims to proceed on behalf of plaintiffs who have not consented and may not even be aware of an action un- fairly exposes defendants to the possibility of double recovery. They are pinning their hopes to a leave application currently before the Supreme Court of Canada that could yet result in the nation's top court weighing in on the issue. "It does raise fundamental issues of fairness," says Chris Naudie, co-chairman of the class actions defence practice group at Osler Hoskin and Harcourt LLP. "It's not clear why an Ontario court would want to adjudicate the claim of an absent foreign claimant if, ultimately, it may not be enforceable in their home jurisdiction. "It's questionable whether it serves the objectives of the Class Proceedings Act, but I would ex- pect that we will see more cases like this, which certainly raises the financial stakes for defen- dants," adds Naudie, who was not involved in the appeal court case. The matter has its roots in the years between 2000 and 2006, when the plaintiffs allege that a group of airlines, including Air Canada and British Airways PLC, conspired to fix air freight prices for shipments in and out of Canada by manipulating sup- ply or boosting the cost of fuel and security charges. However, the class action ran into trouble when the de- fendants challenged the court's jurisdiction over class members located outside Canada who en- tered into contracts outside the country. In August 2015, Ontario Superior Court Justice Lynne Leitch sided with the defen- dants, ruling that Ontario could not assume jurisdiction over the absent foreign claimants because they neither had any presence in the province nor had they consented to the claim proceeding here. "The potential for the mul- tiplicity of further actions by absent foreign claimants is in- consistent with the objectives of class proceedings and contrary to the principles of order and fairness," Leitch wrote, add- ing that the principle of comity would also be offended by as- serting jurisdiction in light of her conclusion that "the court can not reasonably expect that its judgment will be recognized in foreign countries." However, the appeal court panel ruled that Leith erred in her failure to apply the "real and substantial connection" test laid out by the Supreme Court in its 2012 decision Club Resorts Ltd. v. Van Breda to the jurisdiction question. The court then set its own three-part framework, es- tablishing that jurisdiction may be asserted over absent foreign claimants when: • there is a real and substantial connection between the sub- ject matter of the action and Ontario, and jurisdiction ex- ists over the representative plaintiff and defendants; • there are common issues be- tween the claims of the rep- resentative plaintiff and the absent foreign claimants; FOCUS See Only, page 12 Alexandra Teodorescu says the potential financial gains to class from the addition of absent foreign claimants will be tempered in many cases by the procedural burdens they bring with them. 6 TH ANNUAL ANTI-BRIBERY AND CORRUPTION COMPLIANCE FULLY ACCREDITED IN-CLASS PROGRAM & LIVE WEBINAR • Introduction and overview of the anti-corruption landscape for Canadian companies • Anti-corruption enforcement: the view from the RCMP • The US foreign corrupt practices act (FCPA): what canadian companies need to know • An industry perspective on anti-corruption enforcement and compliance: The view from snc-lavalin • Perspective from in house counsel: key compliance challenges and solutions • Investigating potential breaches within the company and dealing with enforcement MAY 10 | TORONTO & WEBINAR www.lexpert.ca/legal-programs/anti-bribery For questions and group rates, please contact: Toll-Free: 1-877-298-5868 Direct: 416-609-5868 Fax: 416-609-5841 Email: lexpert.questions@thomsonreuters.com EARLY BIRD EXTENDED TO APR. | SAVE $300 John W. Boscariol is head of the firm's International Trade & Investment Law Group and a partner in the Litigation Group. COURSE LEADER JOHN W. BOSCARIOL, MCCARTHY TÉTRAULT LLP Untitled-7 1 2018-04-11 10:05 AM It's not clear why an Ontario court would want to adjudicate the claim of an absent foreign claimant if, ultimately, it may not be enforceable in their home jurisdiction. Chris Naudie

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