Notwithstanding the fact that “international” is the new standard for many businesses, Canadian courts continue to struggle with how to properly assert jurisdiction over claimants in an international class action. The current legislative framework provides no meaningful guidance, and the current test was not designed to handle the unique jurisdictional issues of a global class. The result is an unpredictable, unstable body of caselaw that flies in the face of the constitutional principles of order, fairness, and comity. It is time for legislative intervention.
I suggest that the most appropriate model would be a hybrid regime that requires domestic claimants to opt out, but foreign (that is, non-Canadian) claimants to opt in. A hybrid model will also ensure that Canada’s jurisdictional rules pertaining to foreign claimants are in line with established internationally accepted norms, and bring Ontario’s regime up to date with recent developments in the European Union and the United Kingdom in anticipation of the expanding role of class action and collective settlement regimes beyond the bounds of North America. It would also provide greater protections to Canadians where other countries, such as the United States, presume to include Canadians in foreign opt-out proceedings without the consent of the Canadian class members. In short, a hybrid model would introduce a welcome level of clarity into the jurisdictional analysis of a global class.
