In Personam Class Actions - Jurisdiction, Recognition and Enforcement

In Personam Class Actions—Jurisdiction, Recognition and Enforcement -Adaptation of rules from personal action, to class actions -Legislation à BC only province with opt-in model -Finding jurisdiction in class actions— - Connecting factors for R&S connection: • “Common issue” with a proceeding in BC is a presumptive connecting factor, even if Ps (non-residents) would otherwise not meet R&S connection (Harrington v Dow) • Traditional rules of presence or submission still apply to class actions (Ward v Canada) • Location of tort (Kaynes v BP) -Forum non conveniens/discretion— - Consider usual factors (Ward v Canada) - + Whether there is a parallel class actions that P could join (Kaynes v BP) - Can reconsider later in proceeding (after certification) with more info if somewhere else is appropriate forum (Ward v Canada) -Recognition & Enforcement of class actions— - R&E rules should take into account unique features of class actions (Currie v Macdonald’s) - Criteria for R&E of class action: (Currie v Macdonald’s) • (1) Real and substantial connection between forum + action • (2) Non-residents must be adequately represented • (3) Non-residents should get procedural fairness, including adequate notice** § Need notification to all members of class to opt-out and not be bound by class § No notice à poor distribution, confusing messaging, unclear - R&E of other judgment used as shield for new action (Currie & Meeking) • If foreign court had territorial jurisdiction over D and resident P + there is a common issue between claim of resident P and non-Resident P à Presumptive connection that gives foreign court jurisdiction over nonresident P • Therefore, likely bound by decision of foreign court if you fail to opt-out (Meeking) Harrington v Dow Corning Corp Court can have jurisdiction over plaintiffs if they opt-in and have a “common issue” members of the class action -F: Class action about breast implants, had resident and non-resident sub-classes (wanted to opt-in to BC action) - Challenging class certification order over lack of jurisdiction over non-resident class -A: Jurisdiction simpliciter—need a real and substantial connection between forum + parties or subject matter of action - Non-resident class cannot establish jurisdiction simpliciter under straight R&S connection test (parties) • Connection between BC + non-resident is the common issue, enough to meet R&S - “Common issue” is a presumptive connecting factor -Class Proceedings Act s. 16(2)—A non-resident may opt into the class if the person would be, but not for their residence, a member of the class - BC is opt-in class action jurisdiction Ward v Canada Same rules for jurisdiction + discretion apply in class actions (presence, submission) + keep in mind possibility of parallel actions, can reconsider discretion as more info becomes available -F: P resident of Manitoba, bringing class action against fed gov’t for issue while in army in NB -I: Can Manitoba take jurisdiction over federal gov’t? -A: Crown is present in every province à presence is still a presumptive connecting factor in class actions - MB court can have jurisdiction over gov’t • But, does not mean MB shouldn’t exercise discretion - This case—class action was in certification stage, MB was forum conveniens • Jurisdiction could be varied as more information is gathered (perhaps stay in favour of NB) Kaynes v BP plc Class actions + forum non conveniens, look if there are other parallel actions P could join -F: Oil spill in Gulf, action for misrepresentation, P was shareholder bought shares in NY, D British company and action commenced based on Ontario Securities Act -I: Does Ont have jurisdiction over British corporation and Mexico oil spill? -A: Tort of misrepresentation occurred in Ont à presumptive connecting factor, lex loci delicti - But, Ont exercises discretion (stays the action), forum non conveniens • Class action was also happening in US that P could join -2016 à stay reconsidered because US court refused to proceed on pre-explosion misrepresentations, you can reconsider discretion Currie v MacDonald’s Restaurants R&E of class actions, need to accommodate special features of class action, notice very important for opt-out actions -F: Action for consumer fraud, R&E of class action by D for shield purposes (didn’t want another action starting somewhere else) - P didn’t opt-out of action in Illinois (class had been extended to Canadians) -I: R&E of Illinois judgment? -A: Illinois had jurisdiction, real and substantial connection between court, McDonalds and action - R&E rules should take into account unique features of class actions - Criteria for R&E of class action: • (1) Real and substantial connection between forum + action • (2) Non-residents must be adequately represented • (3) Non-residents should get procedural fairness, including adequate notice § Need notification to all members of class to opt-out and not be bound by class - This case—notice was put in MacLean’s magazine, 3 papers but was very technical + unclear, no R&E Meeking v Cash Store R&E, if opt-out class and P seeking to bring new action had common issue with the original class, likely bound by the decisions -F: class actions brought against payday loan stores, Ont class settled and prevented anyone else (except BC and AB) from commencing other action - P was MB resident who failed to opt-out of Ont class -A: Foreign court has territorial jurisdiction over D and resident P + there is a common issue between claim of resident P and nonResident P à Presumptive connection that gives foreign court jurisdiction over non-resident P (opt-out model) - With regard to R&E, one court has jurisdiction se Currie - This case—Ont had jurisdiction over non-resident P (bound by decision b/c didn’t opt-out) because of common issue • Decision R&E in MB