Jurisdictional Considerations in Class Proceedings

Class proceedings are now a well-entrenched part of the legal landscape in Canada but the issue of jurisdiction and the appropriate forum in which to conduct class proceedings often presents complex issues. Moreover, national and multi-jurisdictional class proceedings are becoming the new norm.

Despite encouragement and pressure from the judiciary, legislative intervention to solve many of these complex jurisdiction issues has not kept pace. As a result, these issues continue to cause difficulties for the parties, their counsel and the judges who hear these cases.

In order to understand and appreciate some of these issues and the complexities that can arise, we will examine two general issues of jurisdiction and forum that often present themselves in class proceedings.

The first issue that will be examined is that of forum non conveniens, including not only whether a particular forum has jurisdiction but also whether another jurisdiction is forum conveniens.

Secondly, we will examine developments in the area of multi-jurisdictional class proceedings including issues of duplicative class proceedings and hearing multiple class proceedings relating to the same alleged wrongdoing.

THE FORUM NON-CONVENIENS ANALYSIS IN CLASS ACTIONS

Forum Non-Conveniens and the Test in Club Resorts
The issue of forum selection is an important issue in class proceedings. Class proceedings legislation in some provinces mandates, upon certification of a class proceeding, “a person who meets the criteria to be a class member…is a class member unless the person opts-out of the class proceeding”. (see Class Proceedings Act, SA 2003, c.C-16.5). In other jurisdictions, the legislation indicates that members of the class who are residents of the province in which certification is granted must specifically opt out of the class proceedings, whereas those who are not residents of that province must specifically opt in if they are want their claims to be considered (see Class Proceedings Act, RSBC 1996, c. 50). This can cause counsel to “forum shop” for the most favorable jurisdiction in which to commence the action. That gives rise to questions of whether the province in which the action has been brought has jurisdiction and further, if it does, whether there is a more convenient forum that should hear the action.

When considering the forum non-conveniens analysis, one must immediately be conscious of the Supreme Court of Canada decision in Club Resorts Ltd. v. Van Breda, 2012 SCC 17. While the Club Resorts case was not a class proceeding, it nevertheless provides useful guidance on the topic. The first step in the Club Resorts analysis is to determine whether a court has simple jurisdiction over the claim. In addressing that question, the court must consider presumptive connecting factors. By identifying presumptive connecting factors, the court is better able to determine whether there is an appropriate linkage between the subject matter of the litigation and the defendant to the forum in which the action is brought.

The court must assess the link between the subject matter of the litigation and the forum, but separate consideration has to be given to values of fairness and efficiency and the principle of comity. The Supreme Court of Canada gave a non-exhaustive list of presumptive connecting factors for courts to consider when determining whether to assume jurisdiction over a dispute:

1. The Defendant is domiciled or resident in the province;
2. The Defendant carries on business in the province;
3. The tort was committed in the province; and
4. A contract connected with the dispute was made in the province.

Other factors, including where the damage was suffered or the domicile or place where a corporate plaintiff carried on business, are not factors that ought to be considered in the first branch of the analysis.

If a defendant challenging jurisdiction can establish that there is no presumptive connecting factor between the subject matter of the litigation and the forum selected by the plaintiff, the court will have no jurisdiction simpliciter and must decline to hear the dispute.

If the court determines that it does have jurisdiction by virtue of one or more presumptive connecting factors, the second branch of the test must be considered. In the second branch of the test, the court considers the distinction between the existence and the exercise of jurisdiction. In particular, the defendant must demonstrate that there is another more appropriate jurisdiction within which the dispute should be heard. In doing so, the defendant assumes the burden of demonstrating why the court ought to decline jurisdiction and stay the action.

In order to be successful on this second branch of the test, the Supreme Court of Canada said:

The defendant must show, using the same analytical approach the court followed to establish the existence of a real and substantial connection with the local forum, what connections this alternative forum has with the subject matter of the litigation. Finally, the party asking for a stay on the basis of forum non-conveniens must demonstrate why the proposed alternative forum should be preferred and considered to be more appropriate.

In considering these issues, the Supreme Court of Canada provided another non-exclusive list of factors to be considered:

1. The comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum;
2. The law to be applied to the issues in the proceeding;
3. The desirability of avoiding multiplicity of legal proceedings;
4. The desirability of avoiding conflicting decisions in different courts;
5. The enforcement of an eventual judgment;
6. The fair and efficient working of the Canadian legal system as a whole.

This is again not an exhaustive list and the Court was careful to indicate that the context of individual cases may raise other considerations that would need to be considered by the Court. In particular, the Court indicated that other possible considerations could include location of the parties and witnesses, the cost of transferring the case to another jurisdiction, or if declining the stay, the impact of a transfer, the conduct of the litigation on related or parallel proceedings, the possibility of conflicting judgments, problems related to the recognition and enforcement of judgments and the relative strengths of the connections of the parties.

Finally, regarding the burden imposed on a party seeking a stay on the basis of forum non-conveniens, the Court indicated that the alternative forum must be “clearly more appropriate”, a well-established test.

MULTI-JURISDICTIONAL CLASS PROCEEDINGS

Several Superior Courts across Canada are now willing to certify national classes and it is now commonplace that multiple, overlapping proceedings are being commenced in different jurisdictions. This is complicated further by the fact, as addressed above, the legislation differs among certain provinces as to whether upon certification, putative class members are required to “opt in” to be part of the class or whether they are automatically part of the class upon certification.

Provincial legislation is currently ill-equipped to address the jurisdictional problems and inefficiencies created by multi-jurisdictional class actions. While the Canadian Bar Association National Task Force on Class Actions has attempted to rectify some of these difficulties, its influence on Canadian courts has been limited to certification for settlement approval motions, at least to date. In order to bring clarity to these complex jurisdictional issues, legislative change will be needed.

Various jurists across Canada have called for some form of protocol to solve these complexities resulting from what are essentially the same claims brought in different jurisdictions. In Tiboni v. Merck Frosst Canada (2008), 295 DLR 4th 32 (Ont SC), Justice Cullity called for the development of a court-to-court agreement or protocol to address the complexities:

If decisions of provincial courts on carriage motions are not to be respected throughout Canada, this merely underlines – and makes even more urgent – the need for an agreement or protocol among superior courts that will provide for nationally-accepted carriage motions and determine the jurisdiction in which such motions will be heard.

More recently. the Supreme Court of Canada in Canada Post v. Lépine, 2009 SCC 16, called on provincial legislators to pay more attention to the framework for national class actions, and recommended establishing more effective methods for managing jurisdictional disputes:

As can be seen in this appeal, the creation of national classes also raises the issue of relations between equal but different superior courts in a federal system in which civil procedure and the administration of justice are under provincial jurisdiction. This shows that the decisions made may sometimes cause friction between courts in different provinces. This of course often involves problems with communications or contacts between the courts and between the lawyers involved in such proceedings. However, the provincial legislatures should pay more attention to the framework for national class actions and the problems they present. More effective methods for managing jurisdictional disputes should be established in the spirit of mutual comity that is required between the courts of different provinces in the Canadian legal space. It is not this Court’s role to define the necessary solution. (emphasis added)

Five years later, we are still waiting for some form of legislative reform to solve these difficulties. In the meantime, the Canadian Bar Association’s Judicial Protocol for the Management of Multi-jurisdictional Class Actions has arisen but to date, its acceptance when dealing with the merits of a case or even on certification, has been lacking. While the judicial protocol has been met with greater acceptance for settlement purposes, it remains to be seen whether it will gain traction when dealing with the merits of class proceedings or on certification of those proceedings.

The friction that can arise between courts of different provinces in multi-jurisdictional class proceedings was made evident in the British Columbia Court of Appeal’s decision in Endean v. British Columbia, 2014 BCCA 61. The decision in Endean arose out of multi-jurisdictional class proceedings filed in Ontario, Quebec and British Columbia arising over tainted blood through which people were said to have contracted Hepatitis C. All three actions were certified as parallel class proceedings which were ultimately settled. In order to administer the settlement, the Courts assumed a supervisory role requiring all three Courts to issue identical Orders for any Order to be effective.

In 2012, class counsel proposed that judges of all three jurisdictions hear parallel motions in one location. The Attorneys General of all three jurisdictions objected to the judges sitting outside their territorial boundaries. Directions were sought by class counsel from each of the three Courts. While class counsel was successful in all three provinces in the first instance, appeals were taken out in Ontario and British Columbia. The British Columbia Court of Appeal reversed the British Columbia Supreme Court decision finding that British Columbia superior court judges can only sit outside of the territorial boundaries of the province if there is a direct link to a British Columbia courtroom such that citizens of British Columbia can observe the proceedings, by video link or teleconference.

This decision was directly in conflict with the decision of Chief Justice Winkler in Ontario who, in Parsons v. Canadian Red Cross Society, 2013 ONSC 3053 found that an Ontario Supreme Court judge could preside over proceedings outside of the boundaries of the province of Ontario where it would promote the interest of justice to do so, assuming the Court has jurisdiction over the matter.

Issues such as this become even more complex when proceedings are filed not only in Canada but in other countries over the same dispute or cause of action. This was the situation in Kaynes v. B.P., PLC, 2014 ONCA 580. The Kaynes case dealt with misrepresentations allegedly made by B.P. in documents sent to its shareholders. The Plaintiff asserted a statutory cause of action for secondary market misrepresentation under the Ontario Securities Act. Shares of B.P., PLC were sold on various exchanges including the Toronto Stock Exchange, the New York Stock Exchange and on the London Stock Exchange.

The Plaintiff in Kaynes purchased his shares over the New York Stock Exchange but brought the action in Canada seeking to define the proposed class as including all residents of Canada who acquired B.P. securities between certain specific dates. The Court in Kaynes was faced with the issue of whether Ontario has or should assert jurisdiction over the claim of proposed class members who purchased B.P. shares on foreign exchanges.

Ultimately, the Court found that:

Order and fairness will be achieved by adhering to the prevailing international standard of tying jurisdiction to the place where the securities were traded.

What the Court described as “the maintenance of an orderly and predictable regime for the resolution of claims” was seen to be paramount and the differences between the securities legislation in the three jurisdictions played a role in the outcome of this decision of the Ontario Court of Appeal.

Various class action statutes across Canada have provisions concerning multi-jurisdictional class proceedings that also need to be considered. For example, section 5(6) through (8) of the Class Proceedings Act, SA 2003, c. C-16.5 provides, among other things, that an Alberta Court must determine whether it would be preferable for some or all of the claims or common issues raised by the prospective class members to be resolved in the proceeding commenced elsewhere. When making such a determination, the Alberta legislation provides factors that the Court must observe as well as a number of factors that the Court may observe in making this determination. Not all provincial legislation contains such provisions (see, for example, Class Proceedings Act, RSBC 1996, c. 50.)

Faced with numerous instances of overlapping national class actions, Canadian Superior Courts have, in some cases, adopted what could be called a “subclass deference model” in response to disputes regarding the choice of forum. Under this model, any Court in which a national class action is brought will generally refuse to engage in true forum selection. Instead, the Court will generally “defer” to the Superior Court of another province in respect of the subclass of persons residing in that other province. This deferential approach is frequently justified on the basis of judicial comity.

To date, it does not appear as if any Canadian Court has been prepared to stay or enjoin a class proceeding on the grounds that there is a competing national class action in a more appropriate forum. On the contrary, it has become common place for Canadian Courts to tolerate multiple overlapping national class actions. This prevailing attitude is reflected in the Ontario Superior Court’s decision in Sollen v. Pfizer (2008), 290 DLR (4th) 603:

The above aspects of class proceedings reduce the likelihood that one of the different jurisdictions will clearly be more appropriate than others, and will make it more difficult for a defendant to obtain a stay of a proceeding in any of the jurisdictions. The result is that – on the assumption that national classes are permitted – there are likely to be many cases of identical or overlapping class actions in more than one jurisdiction in which no stay would be justified by an application of the principles of forum non-conveniens.

This judicial tolerance for duplicative class proceedings lies in contrast to the judicial attitudes towards duplicative proceedings generally. Outside of the class context, Canadian Courts have shown an aversion to duplicative lawsuits, and with good reason. A multiplicity of proceedings is problematic because, among other things, it creates a risk of conflicting decisions.

Notwithstanding the risks that are well known in respect of duplicative proceedings outside the class action context, motions to stay duplicative class proceedings in one province in favor of a class proceeding in another on the basis of forum non-conveniens are often dismissed. A court hearing a stay motion typically takes the view that unless and until a class proceeding in another province has actually been certified, the Plaintiff should have a right to prosecute their own class action before that Court. For example, in the Alberta decision of Yee v. Aurelian Resources Inc., 2007 ABQB 368, the Court said:

As there has been no certification in Ontario and no motion for certification has been filed, there is simply nothing for Alberta residents to join. A stay would mean Alberta residents would be left in legal limbo of not being allowed to proceed in their home province, while not being part of any other proceeding.

It is important to note that these courts are preserving the right of provincial residents to pursue the certification and trial of a class action.

It appears that those courts that condone duplicative class proceedings in multiple provinces commonly propose that the risk of conflicting or confusing decisions can be overcome through “comity” between judges in different provinces. The operating assumption is that any Certification Order in such a case would “carve out” (for example) Alberta residents, who could then be included in the Alberta proceeding instead. In other words, the expectation is that the Court of every province will engage in a form of “ongoing deference” to the Courts of other provinces in respect of certification of any class that includes residents of those provinces.

Notwithstanding the foregoing, a forum non-conveniens Application may be successful in light of the Ontario Superior Court’s recent decision in Bond v. Brookfield Asset Management Inc., 2011 ONSC 2529, affirmed 2011 ONCA 730, leave to appeal denied. In that case, the Defendants brought a motion to have a proposed class proceeding stayed on the grounds that Ontario did not have jurisdiction simpliciter or, alternatively, that Ontario was forum non-conveniens. That motion was granted and the proposed class proceeding was stayed in Ontario and proceeded in Alberta. However, it is not clear from that decision whether the class action was multi-jurisdictional/national in scope. Further, it appears that the Court’s position hinged on the fact that there was no real and substantial connection to Ontario and therefore, no jurisdiction simpliciter.

Similar circumstances were addressed in the Saskatchewan Court of King's Bench decision in Brittin v. The Minister of Human Resources and Skills Development Canada, 2013 SKQB 318. In that case, the Court said:

The defendants have every right to raise concerns about preferability of forum, the interests of the parties, promoting judicial economy and juridical advantage to the plaintiffs. All of those issues can and will be addressed at the certification stage and as such, I see no reason why they need be addressed now. Parenthetically, I would add the following to this conclusion. As observed by the Court of Appeal in Englund, supra, the doctrine of abuse of process is aimed at preventing the misuse of the courts … and not to shield the defendants from the added burden of defending multiple actions.

It should be noted, however, that the Court may still exercise its discretion and grant a party’s forum non-conveniens Application on the basis that there is a more appropriate forum for the class proceedings. This was recently demonstrated by the Ontario Court of Appeal in Kaynes, supra.

As to abuse of process in circumstances of a multiplicity of proceedings, there is some overlap between this concept and the doctrine of forum non-conveniens. The doctrine of abuse of process causes the Court to be called upon to prevent the misuse of its resources to ensure the reputation of the administration of justice. Multiple duplicative claims may fail to serve any legitimate interest and call the administration of justice into disrepute.

Part of the assessment involves whether the class proceedings in multiple jurisdictions are sufficiently similar to raise the concerns necessary to provide an abuse of process but a Court would need to take a broad view in order to strike claims for abuse of process. Having regard to the attitude of the Courts to multi-jurisdictional class proceedings, this is likely a very difficult argument to make successfully given the deferential treatment that one provincial Superior Court gives another as referred to above.

CONCLUSION

Unless and until there is legislative intervention or a more cooperative but at the same time less deferential approach to multi-jurisdictional class proceedings, these problems will continue. An agreed-upon framework and an efficient structure to such claims are long overdue despite the pleas of the judiciary that provincial legislatures address these issues.

In the meantime, class counsel and the judges they appear before will have to continue to pay close attention to the legislation in place in the forum in which the action is being heard and be attentive to differences between that legislation and the legislation of other jurisdictions in which claims for the same wrongdoing may have been brought.

We will all continue to await the necessary changes that appear to be required in order to clarify the confusion that is created for so many, both counsel and parties, as well as the judiciary, in relation to these jurisdictional issues that arise in class proceedings across the country.

Don McGarvey is a partner with the Edmonton office of McLennan Ross LLP and practices complex commercial litigation. Kate Whittleton is an associate with the Edmonton office of McLennan Ross LLP and practices in the area of commercial litigation.