Absent Foreign Claimants in Canadian Class Actions: Where to After Airia Brands?

If a tort is committed on an international scale, when can a Canadian court assume jurisdiction in a class proceeding over class members who reside outside of Canada? The Ontario Court of Appeal’s recent decision in Airia Brands Inc v Air Canada provided a new framework for answering this question but, in doing so, expanded Ontario’s jurisdiction over absent foreign claimants to untenably broad levels. This new test allows on its face for the assumption of jurisdiction even when there are no direct connections between the absent foreign claimants and the forum. Rather, it is sufficient that a court have jurisdiction over both the representative plaintiff and the defendants, and that the representative plaintiffs share common issues of fact or law with the absent foreign claimants. This signifies an exceedingly broad approach to the assumption of jurisdiction over absent foreign claimants and a radical expansion of Canadian courts’ jurisdiction over class proceedings. If applied literally, this test will create significant problems for a wide range of class actions and would be inconsistent with norms of comity. Going forward, courts ought to consider the implications of this test and search for practical judicial solutions that can temper its negative impacts. These solutions may take the form of a modified test that requires greater linkage between absent foreign claimants and the forum or, alternatively, a more robust application of the forum non conveniens analysis subsequent to the finding of jurisdiction.