SCC denies leave from ONCA decision establishing framework for assumption of jurisdiction over global classes

In November 2017, we blogged about a decision of the Ontario Court of Appeal in Airia Brands Inc. v. Air Canada, 2017 ONCA 792, where it was held that courts in Ontario can have jurisdiction over absent foreign claimants (“AFCs”). AFCs are an opt-out class of individuals who are not present in Canada and have taken no steps to indicate their consent to a Canadian jurisdiction.

At first instance, the Superior Court of Justice granted the defendants’ motion for a declaration that Ontario did not have jurisdiction over AFCs. The Court of Appeal reversed Justice Leitch’s decision and created a new framework for determining when a provincial superior court can establish jurisdiction over AFCs. Writing for the court, Justice Pepall held that the Ontario Superior Court has jurisdiction over AFCs where:

  1. there is a real and substantial connection between the subject matter of the action and Ontario, and jurisdiction exists over the representative plaintiff and the defendants;
  2. there are common issues between the claims of the representative plaintiff and AFCs; and
  3. the procedural safeguards of adequacy of representation, adequacy of notice, and the right to opt out…are provided, thereby serving to enhance the real and substantial connection between AFCs and Ontario.

On October 25, 2018, the Supreme Court of Canada dismissed an application for leave to appeal from this judgment. As a result, the Ontario Court of Appeal’s decision stands.

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