COURT OF APPEAL FOR ONTARIO

CITATION: Airia Brands Inc. v. Air
    Canada, 2017 ONCA 792

DATE: 20171017

DOCKET: C61094

Gillese, MacFarland and Pepall JJ.A.

BETWEEN

Airia
    Brands Inc., Startech.Com Ltd. and

QCS-Quick Cargo Service
    GMBH

Plaintiffs (Appellants)

and

Air Canada, AC Cargo Limited Partnership
,

Societe
    Air France, Koninklijke Luchtvaart Maatsch appij N.V. dba KLM,

Royal
    Dutch Airlines, Asiana Airlines Inc.,
British Airways PLC
,

Cathay
    Pacific Airways Ltd., Deutsche Lufthansa AG,

Lufthansa
    Cargo AG, Japan Airlines International Co., Ltd.,

Scandinavian
    Airlines System, Korean Air Lines Co., Ltd.

Cargolux
    Airlines International, Lan Airlines S.A.,

Lan
    Cargo S.A., Atlas Air Worldwide Holdings, Inc.,

Polar
    Air Cargo Inc., Singapore Airlines Ltd.,

Singapore
    Airlines Cargo PTE Ltd., Swiss International Air Lines Ltd.,

Quantas Airways Limited,
    and Martinair Holland N.V.

Defendants (
Respondents
)

Proceeding under the
Class
    Proceedings Act, 1992
, S.O. 1992, c. 6

Paul Bates, Linda Visser and Emilie McLachlan Maxwell,
    for the appellants

Katherine L. Kay, Danielle K. Royal and James S.F.
    Wilson, for the respondents Air Canada and AC Cargo Limited

Robert S. Russell and Denes A. Rothschild, for the
    respondent British Airways PLC

Lisa La Horey and Brent Kettles, for the intervener Attorney
    General of Ontario

Heard: December 13 and 14, 2016

On appeal from the order of Justice Lynne Leitch of the
    Superior Court of Justice, dated August 26, 2015, with reasons reported at 2015
    ONSC 5332.

Pepall J.A.:

A.

Overview

[1]

This appeal concerns the applicable test for determining jurisdiction
    over absent foreign claimants (AFCs) in a class action involving a claim of
    conspiracy to fix prices of air freight shipping services for shipments from or
    to Canada. The appellants allege that the airlines Air Canada, AC Cargo Limited
    Partnership (Air Cargo), and British Airways PLC (BA) (collectively the respondents)
[1]
and other airlines, operating in locations all over the world, participated in
    a conspiracy to increase the price of air freight shipping services between the
    years 2000 and 2006. Specifically, they allege that the respondents and others
    conspired to limit or unduly lessen the supply of air freight shipping services,
    or to enhance unreasonably the price of associated fuel and security
    surcharges.

[2]

The appellants sought an order certifying the class action with a class
    that included AFCs.  The proposed class was to include persons who directly
    purchased air freight shipping services for shipments from or to Canada and
    indirect purchasers who purchased such services through a freight forwarder.    The
    case is limited to the Canadian parameters of the Canadian conspiracy; that is
    to say, the illegal price fixing of fuel and security surcharges on air freight
    shipping services for shipments from or to Canada.

[3]

In response, the respondents and others brought a motion for a
    declaration that the Ontario court did not have jurisdiction over AFCs and that
    the class should be defined to exclude such parties (the jurisdiction motion).
    For the purposes of the motion, AFCs were defined as persons who reside outside
    of Canada, entered into contracts for Air Freight Shipping Services
[2]
outside of Canada, suffered any alleged losses outside of Canada, except those
    who expressly consent to the jurisdiction of the Ontario court.

[4]

The respondents also served a notice questioning the constitutional
    applicability of the real and substantial connection test and ss. 27(3), 28(1),
    and 29(3) of the
Class Proceedings Act, 1992

(
CPA
), which codify Ontarios
    opt out class proceedings regime, to AFCs.

[5]

The respondents sought an order staying the proposed action insofar as
    it related to AFCs on the basis of jurisdiction
simpliciter
and alternatively,
    on the basis of
forum non conveniens
.

[6]

The motion judge granted the respondents jurisdiction motion,
    concluding that the real and substantial connection test for jurisdiction
simpliciter
should not be applied.  Rather, the motion judge held that the jurisdictional
    analysis was to be guided by principles of order, fairness, and comity. She concluded
    that, because AFCs were not present in Ontario, or had not consented in some
    way to the jurisdiction of the court, jurisdiction had not been established.
    In the alternative, the motion judge held that there was no real and
    substantial connection and, in any event, Ontario should decline to exercise
    jurisdiction on the basis of
forum non conveniens
.  In a subsequent
    order, she certified the action as a class proceeding, but excluded AFCs from
    the class.

[7]

The appellants appeal from the motion judges jurisdiction order.  The
    Attorney General for Ontario has intervened in opposition to the motion judges
    conclusion that the real and substantial connection test was inapplicable to
    AFCs.

[8]

For the reasons that follow, I would allow the appeal.  The motion judge
    erred in law in concluding that the real and substantial connection test was
    inapplicable and that jurisdiction existed only if AFCs were present in Ontario
    or consented to the Ontario courts jurisdiction.  Moreover, she erred both in
    concluding that if the real and substantial connection test were to be applied,
    the test was not satisfied, and in her consideration of the principles
    governing
forum non conveniens
.

B.

Facts

(1)

Nature of the Claim

[9]

Air freight shipping services are shipments of goods by air.    Airlines
typically
sell the
ir

air freight shipping services to freight forwarders.  Shipping
    customers in turn purchase these services from the freight forwarders.  The
    freight forwarders in essence serve as intermediaries between the airlines and
    the shipping customers. The airlines may not know the identity of the shipper
    if a freight forwarder is used.  Airlines also sell air freight shipping
    services directly to shipping customers.  Air Canada, for example, has
    thousands of direct purchase shipper customers located throughout the world
, but these direct purchasers represent only a small portion of Air
    Canadas customer base for air freight services.

[10]

The
    appellants, the representative plaintiffs in this class action, include Airia
    Brands Inc., a Canadian manufacturer located in London, Ontario, and
    Startech.Com Ltd., a Canadian supplier also located in London, Ontario, both of
    whom purchased air freight shipping services from freight forwarders for the
    shipment of their products by air from and to Canada.  QCS-Quick Cargo Service
    GMBH is a German freight forwarder that purchased air freight shipping services
    for shipments from and to Canada. The appellants assert a damages claim for
    conspiracy under the
Competition Act
,
    R.S.C. 1985, c. C-34
.  They also plead that the respondents are liable
    for the tort of civil conspiracy.

[11]

The
    respondent airlines entered into transactions with customers, including AFCs, for
    shipments from and to Canada.  Air Canada
is a company
domiciled in Canada.  Air Canadas principal hub location for all its services,
    including air freight shipments, is Toronto (Pearson) International Airport.  Air
    Cargo is a limited partnership that is controlled by Air Canada. Air Cargo provides
    air freight services.  It has over 1,000 employees, about half of whom are
    located in Ontario.  Approximately 50% of AC Cargos Canadian cargo
    transportation revenue is generated from Toronto-based shipments.  At the times
    material to this action, BA had cargo shipping operations located at Toronto (Pearson)
    International Airport.  BA operated 16 direct flights per week from the U.K. to
    Toronto.  Approximately 75% of its Canadian air cargo customers were located in
    the Greater Toronto Area.

[12]

At the core of this class action is the issue of whether the
    respondents are, as the appellants allege, liable for conspiracy to fix prices
    for air freight shipping services, by imposing certain surcharges or extra fees
    on base prices for air freight shipping services.  As mentioned,
the
    appellants claim is limited to the Canadian parameters of the global
    conspiracy; that is to say, the illegal price fixing of fuel and security
    surcharges on air freight shipping services for shipments from or to Canada.  In
    furtherance of the conspiracy, the appellants allege that at least three
    in-person meetings occurred in Canada, of which at least one was in Ontario.

(2)

Guilty Pleas and Settlements

[13]

The
    conspiracy has been the subject of guilty pleas and judicial findings of guilt
    around the world.  In Canada, the pleas generally related to outbound shipments
    only, but Cathay Pacific Airways Ltd. pled guilty to fixing surcharges on air
    freight shipping services to and from Canada.

[14]

The
    action that is the subject matter of this appeal originally involved claims
    against other defendants, but those claims have been settled, leaving only
    three respondents remaining: Air Canada, Air Cargo, and BA.  The first
    settlement by parties to the action was entered into in 2006.  The class action
    as against Lufthansa AG, Lufthansa Cargo AG, and Swiss International Airlines
    Ltd. was certified on consent as a class proceeding in 2008 for settlement
    purposes.
A global class was certified.
An extensive
    notice program was undertaken worldwide, at a cost in excess of US$5 million.
The notice program was to provide fair and adequate notice
to
    class members
by informing them
about the litigation,
    the settlements, and the right to opt out.  The notice program employed a
    number of notification methods,
including
mailed notice
    to approximately 310,000 persons, as well as notice by publication.  The
    respondents approved the formal order made by the court.  That said, the terms
    of the settlement did not bind them on any issue, including whether the action should
    be certified as a class proceeding.

[15]

After
    that settlement, the action was certified on consent for settlement purposes
    with a number of other defendants who entered into settlement agreements with
    the appellants
.
The respondents did not oppose the
    certification
orders
related to the settlement
    agreements
, which again certified a global class
.  The
se subsequent settlement agreements similarly contained
express
    provisions that the terms of the settlement did not bind the respondents in any
    way.

(3)

U.S. Class Proceeding

[16]

Over
    a decade ago, a parallel class proceeding was commenced in the United States
    (the U.S. class action).  The U.S. class action was certified on behalf of
    persons who purchased air freight shipping services for shipments directly from
    or to the United States
:
In re Air Cargo Shipping
    Services Antitrust Litigation
, MDL No. 06-1775, 2014 WL
    7882100 (E.D.N.Y. Oct. 15, 2014),
report and recommendation adopted in
    full by
2015 WL 5093503 (E.D.N.Y. Jul. 10, 2015), at p. 1
.
     The certified class is global in nature, including both domestic and foreign
    purchasers of air freight services.

[17]

Prior
    to the U.S. certification motion, the defendants in the American proceeding brought
    a motion to dismiss the claims of the representative plaintiffs on a number of
    grounds.  In an order resulting from that motion, the U.S. court maintained the
    claims for inbound and outbound shipments, but dismissed claims for shipments
    to, from, or within the European Union (excluding from or to the United States)
, because

they were based
    on alleged violations of European law.  The court declined to exercise
    jurisdiction over the claims brought under European law on the grounds of
forum
    non conveniens

and international comity.  However
    it assumed jurisdiction of claims brought under U.S. law that involved
    shipments between the European Union and the United States
.
The
    court specifically considered whether foreign plaintiffs had standing to bring
    claims under the applicable U.S. law, holding that they did. See:
In re Air
    Cargo Shipping Services Antitrust Litigation
, MDL No.
    06-1775, 2008 WL 5958061 (E.D.N.Y. Sept. 26, 2008)
report and
    recommendation on these issues adopted by 2009 WL 3443405 (E.D.N.Y. Aug. 21,
    2009), affirmed 697 F.3d 154 (2nd Circ 2012).

[18]

In making its decision, t
he U.S. court
rejected the defendants argument that the conduct at issue

charging fixed prices for air cargo
    services
 occurred outside the United States.

The U.S. court
stated
it would take a broader view of the conduct relevant to the
    plaintiffs claims, and considered not just where communications about the price
    fixing occurred, but also where the air cargo services themselves were rendered.
     It concluded that it was significant that
air freight services are not
    rendered in one location
,
but are

performed
    along entire transportation routes, touching both the country of origin and the
    country of destination
:
In re Air Cargo

(Sept. 26, 2008), at p. 13
.

[19]

If
    the appellants succeed on this appeal, the Canadian and U.S. class proceedings
    would be substantially aligned.

(4)

The Motion Judges Jurisdiction Reasons

[20]

Before
    considering the appellants certification motion, the motion judge addressed
    the jurisdiction motion brought by the respondents and three other airlines who
    have since settled the proceeding against them.  She commenced her analysis by noting
    that the representative plaintiffs sought to certify the following class
    pursuant to their certification motion:

All persons (excluding Defendants, their respective parents, employees,
    subsidiaries, affiliates, officers, directors, persons currently resident in
    Australia who paid more than AUD$20,000 for the carriage of goods to and from
    Australia by air during the period January 1, 2000 to January 11, 2007, and
    persons who commenced litigation in a jurisdiction other than Canada prior to
    the conclusion of the trial of the common issues) who purchased Airfreight
    Shipping Services* during the period January 1, 2000 to September 11, 2006,
    including those persons who purchased Airfreight Shipping Services through
    freight forwarders, from any air cargo carrier, including, without limitation,
    the Defendants, but not including Integrated Air Cargo Shippers.**

*Airfreight Shipping Services means airfreight cargo shipping
    services for shipments to or from Canada (excluding shipments to and from the
    United States).

**Integrated Air Cargo Shipper is defined as an air cargo
    shipper that manages an integrated system of people, airplanes, trucks and all
    other resources necessary to move airfreight cargo from a customers point of
    origin to the delivery destination, and for greater certainty, includes but is
    not limited to FEDEX, UPS, DHL and TNT.

[21]

The
    class that the appellants sought to certify was subject to two exceptions:
    persons who commenced litigation outside of Canada prior to the conclusion of
    the trial of the common issues, and persons and shipments that fell within the
    scope of the proposed class actions that had been commenced in the United
    States and Australia.

[22]

The
    motion judge identified two issues to be addressed: did the court have
    jurisdiction over AFCs and if so, should it be declined based on
forum non
    conveniens
.

[23]

After
    describing the parties positions, she first turned to the expert evidence
    proffered by them. At para. 112 she concluded, based on the affidavits
    presented, that the prevailing law outside of Canada is that jurisdiction is
    based on presence, consent, or submission; that is, parties may only become
    plaintiffs if they bring the claim themselves or join in an existing claim.  At
    para. 113, she agreed with the original respondents that the real and
    substantial connection test is a radical departure from the norms adhered to by
    other countries and the Ontario opt-out regime set out in s. 27(3) of the
[
CPA
]
cannot be applied outside of Ontario. At paras. 114-115 she
    accepted, based on the record before her, the respondents argument that an
    Ontario class action judgment would not be recognized and enforced by a foreign
    court, exposing the respondents to the potential of double recovery by AFCs.

[24]

Having
    made these findings, the motion judge then turned to the issue of jurisdiction,
    noting that the
CPA
, a procedural statute, could not create
    jurisdiction where there is none.  She considered some of the governing
    jurisprudence.
[3]
She distinguished
Currie v. McDonalds Restaurants of Canada Ltd.

(2005),
    74 O.R. (3d) 321 (C.A.), which adopted the real and substantial connection test
    to address whether an Illinois court had
jurisdiction
    over non-resident Ontario class members in the context of
enforcement
    of a foreign judgment. In contrast, the case before her raised the question of
    whether the court should assume jurisdiction where foreign conflict of law
    principles precluded other countries from recognizing an Ontario judgment.

[25]

The
    motion judge also considered
Meeking v. Cash Store Inc.,
2013 MBCA 81, 367 D.L.R. (4th) 684
, where,
    in circumstances in which an Ontario court in a class action had territorial
    jurisdiction over both the defendant and the representative plaintiff, common
    issues between the claims of the representative plaintiff and that of
    non-resident plaintiffs were held to be a presumptive connecting factor
    sufficient to give the Ontario court jurisdiction over the non-resident
    plaintiffs.  The Manitoba Court of Appeal had concluded that this did not
    constitute an unconstitutional expansion of the real and substantial connection
    test.  In considering
Meeking
, the motion judge reasoned at para. 173
    that
Meeking
had limited significance because it related to a national
    class action and, as such, the real and substantial connection test was
    consistent with the principles of order and fairness.  Moreover, it was
    unnecessary to decide if
Meeking
was wrongly decided and contrary to
Van
    Breda v. Village Resorts Ltd.
,

2012 SCC 17, [2012] 1 S.C.R. 572 because
    the assertion of jurisdiction based on the sharing of a common issue is
    equivalent to asserting jurisdiction based on a party being a necessary or
    proper party, a notion rejected in
Van Breda
.

[26]

The
    motion judge noted the distinction made by the Supreme Court in
Van Breda
between
    the real and substantial connection test applied as a conflict of laws rule and
    as a constitutional principle.  In addition, while the Court affirmed that the
    appropriate test to determine whether a court has jurisdiction is the real and
    substantial connection test, it did not oust the traditional private
    international law basis for court jurisdiction.

[27]

The
    motion judge concluded that
Van Breda

invited courts to develop
    approaches to jurisdiction to meet constitutional requirements and that
    recognize order and fairness. Having regard to the unique circumstances
    presented by the case  parties who are not present in Ontario, have not
    consented to Ontarios jurisdiction, and have not attorned to Ontarios
    jurisdiction  she concluded that the principles of fairness, order, and comity
    should guide the jurisdictional analysis, not the real and substantial
    connection test.

[28]

In
    particular, the motion judge agreed with the respondents that the potential for
    re-litigation and the multiplicity of further actions by AFCs was inconsistent
    with the objectives of class proceedings and contrary to the principles of
    order and fairness. Further, asserting jurisdiction over AFCs where the court
    could not reasonably expect that its judgment would be recognized in foreign
    countries would offend comity.

[29]

At
    paras. 139-140, she considered
Ramdath v. George Brown College of Applied
    Arts and Technology,
2010 ONSC 2019,
    93 C.P.C. (6th) 106
, in which Strathy J. (as he then was) rejected
    the defendants argument that jurisdiction should follow recognition  that is,
    the notion that an Ontario court, in analyzing whether it has jurisdiction
simpliciter
over a claim, must consider whether its judgment would likely be recognized in
    foreign jurisdictions.  Strathy J. noted that holding otherwise would mean that
    Ontario courts would be deprived of jurisdiction even in the presence of an
    obvious real and substantial connection to Ontario.  This, in turn, would allow
    defendants to oust the Ontario courts jurisdiction by simply point[ing] to
    another country that would not recognize a potential judgment.  The motion
    judge distinguished
Ramdath
on the basis that, in
Ramdath
,
there was no issue of order and fairness and it was conceded that there was
    a real and substantial connection between Ontario and the claims of the international
    claimants.  Both the international students and the defendant would expect that
    their relationship claims would be litigated in Ontario and there was a finite
    number of international students from identified countries unlike this case.
    Moreover, before Strathy J., there was limited evidence from foreign law
    experts.  She also observed that in
McKenna
, he reached a different
    conclusion on different facts.

[30]

The
    motion judge addressed the ability of the appellants to rely on the Lufthansa
    notice program but held that it was irrelevant to the reasonable expectations
    of AFCs and she stated at para. 196 that the fact of adequate representation
    of rights and procedural fairness becomes relevant only after a court conclude
s
that it ha
s

jurisdiction.

[31]

Finally,
    she concluded that the court was bound by the constitutional limits on its
    jurisdiction.  At paras. 200-202, she stated:

[T]he territorial limits in s. 92 of the
Constitution Act,
    1867
, prohibit the court from assuming jurisdiction over any class members
    who do not meet the traditional test of presence or consent recognized abroad,
    i.e. [AFCs].

The constitutional limits on the courts jurisdiction lead me
    to the conclusion that the real and substantial connection test ought not to be
    applied to establish jurisdiction over [AFCs].

Rather, I am satisfied that jurisdiction over class members can
    only be established if they are present in Ontario or have consented in some
    way to the jurisdiction of this court.

[32]

As
    such, the court did not have jurisdiction over AFCs and the class action in
    relation to them was stayed.  Having reached this conclusion, she declined to
    address the respondents alternative argument that ss. 27(3), 28(1), and 29(3)
    of the
CPA
were constitutionally inapplicable to AFCs.

[33]

The
    motion judge then addressed whether, if the real and substantial connection
    test did apply, it was satisfied in this case.  In a brief discussion, she described
    the parties arguments on the issue, rejected the new presumptive connecting
    factor described in
Meeking
and determined that the real and
    substantial connection test was not met.  She did not discuss the issue of
    rebuttal of presumptive connecting factors.

[34]

The
    motion judge also decided that if the court did have jurisdiction over the AFCs,
    such jurisdiction should be declined on the basis of
forum non conveniens
.
     She accepted the respondents argument that in a multi-jurisdictional class
    action, the court should pay particular attention to whether its assumption of
    jurisdiction would be consistent with comity, prevailing international legal
    norms, and the reasonable expectations of the parties.  The AFCs would have had
    no expectation that their rights would be adjudicated in Ontario.  If they were
    included in the class, the Ontario court would have to apply the laws of at
    least 30 different countries in relation to matters that involve non-Canadians
    who entered into transactions outside of Canada.  The evidence was that an
    Ontario judgment would not be recognized in other jurisdictions, reaffirming
    the risk of double recovery.  The appellants contention that the AFCs claims
    would not be advanced anywhere at any time did not justify including those
    claims in the action.  Accordingly, she stated that she would stay the proposed
    class action as it related to the AFCs on the basis that Ontario is
forum
    non conveniens
.  She did not address whether an alternative forum was more
    appropriate.

C.

Issues

[35]

The
    issues for this court to consider on this appeal are:

(i)  What is the applicable standard of review?

(ii)  Did the motion judge err in her rejection of the real and
    substantial connection test for global class actions?

(iii) Did she err in her consideration of
forum non conveniens
?

[36]

Before
    engaging in an analysis of these issues, I will first briefly address this
    courts jurisdiction to hear the present appeal.  Section 30 of the
CPA

addresses the appropriate appeal routes for a number of types of orders and
    judgments made in class proceedings.  The
CPA

however makes no
    reference to the appropriate avenue for appeal of jurisdiction orders.  Where
    the
CPA

does not specifically address an avenue of appeal, s.
    6(1)(b) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43

governs
    whether an appeal in a class proceeding

lies to this court:

Locking
    v. Armtec Infrastructure Inc.
, 2012 ONCA 774, 30 C.P.C. (7th) 1, at
    para. 8;
Cavanaugh v. Grenville Christian College
, 2013 ONCA 139, 32
    C.P.C. (7th) 1, at paras. 29-30; and
Waldman v. Thomson Reuters Canada Ltd.
,
    2015 ONCA 53, 71 C.P.C. (7th) 33, at paras. 5-7.

[37]

The
    question therefore is whether the jurisdiction order under appeal is final and
    appealable to this court pursuant to s. 6(1)(b) or whether it is interlocutory.
     The jurisdiction order finally disposes of the issue of an Ontario courts jurisdiction
    over the AFCs, and therefore the present appeal is properly before this court.

D.

Analysis

(1)     Standard of Review

[38]

This
    appeal addresses whether an Ontario court can take jurisdiction over class
    action proceedings involving AFCs and the appropriate test to be applied.  This
    part of the analysis involves a question of law and therefore a correctness
    standard is applicable:
Housen v. Nikolaisen
, 2002 SCC 33, [2002]
    S.C.R. 235, at paras. 8-9, 27.

[39]

In
    contrast to the
i
dentification
of the
correct
    legal

test, the
application
of the correct
legal

test generally involves
    questions of mixed fact and law, which attract a standard of palpable and
    overriding error.  However, where an error in the application of the correct
    legal test can be attributed to an extricable legal error  for example, the
    failure to consider a required element of a legal test, a mischaracterization
    of a legal test, or a similar error in principle  a standard of correctness
    applies:
Housen
, at paras. 33-36.

[40]

This
    appeal also addresses the issue of
forum non conveniens
, which
requires
the application of the relevant legal test to the
    facts, and involves questions of mixed fact and law. Again, this issue is
    reviewable on a standard of palpable and overriding error, except where the
    motion judges analysis involves an error that is traceable to an extricable
    question of law.

(2)     Did the motion judge err in her rejection of
    the real and substantial connection test for global class actions?

(a)

Positions of the Parties

[41]

The
    appellants submit that the motion judge erred in numerous respects in rejecting
    the real and substantial connection test.  They
first
argue that the
operative
test
for
    determining jurisdiction
simpliciter

is
    that
described in
Currie
, which incorporates the real and
substantial connection test
.

[42]

Moreover,
    by holding that jurisdiction over the AFCs must be based on presence in the
    jurisdiction or consent to the jurisdiction, the motion judge replaced the real
    and substantial connection test with one based on imported foreign law; foreign
    law improperly became the determinant for jurisdiction.  The appellants argue
    that factors of order and fairness described in
Van Breda
are subsumed
    by the real and substantial connection test and do not amount to a stand-alone
    test.

[43]

The appellants additionally argue that,
contrary to the
    motion judges analysis, jurisdiction is not a function of enforcement
.

H
er decision
therefore
conflicts with the decisions of
Excalibur Special
    Opportunities LP v. Schwartz Levitsky Feldman LLP
, 2016 ONCA 916, 135 O.R.
    (3d) 743, leave to appeal refused, [2017] S.C.C.A. No. 54;
Ramdath, Nantais
    v. Telectronics Proprietary (Canada) Ltd.
(1995),

25
    O.R. (3d) 331 (Gen. Div.), leave to appeal refused (1995), 25 O.R. (3d) 331 at
    347 (Gen. Div.);

and
Robertson v. Thomson Corp,
(1999)

43 O.R. (3d) 161 (Gen. Div.)
, all of
    which provide that enforcement issues should not preclude certification of
    classes that include non-residents. In holding that the real and substantial
    connection test should be rejected based on concerns relating to recognition
    and enforcement, the motion judge allowed fairness to the respondents to
    overtake the analysis and become a higher priority than fairness to the AFCs.
    It was also an error to conclude that the prospect of re-litigation created
    order, fairness, and comity concerns, all the while ignoring that the risk of
    re-litigation was virtually non-existent due to the expiry of limitation
    periods.

[44]

The
    respondents position is that cases involving non-resident foreign class
    members in proposed class actions raise unique jurisdictional considerations.  The
    motion judge did not err in concluding that it would be inappropriate to assert
    jurisdiction over the AFCs in light of: the unique and specific factual
    circumstances of the AFCs, the expert evidence that a decision of the Ontario
    court assuming jurisdiction over the AFCs on the basis of the real and
    substantial connection test would not be recognized, and the applicable
    principles of fairness and order.  Contrary to the appellants assertion, there
    is no rigidly defined
Currie
test.
Currie
supports the
    proposition that the court may examine both the real and substantial connection
    test and principles of order and fairness in determining whether jurisdiction
    should be assumed in an international class action.  Subsequent decisions that
    the motion judge relied on in her reasons, such as
McKenna v. Gammon Gold
    Inc.
, 2010 ONSC 1591, 88 C.P.C. (6th)
    27
, reversed on other grounds, 2011 ONSC 3782, 13 C.P.C. (7th) 232
    (Div. Ct.);

and Perell J.s decision in
Excalibur Special
    Opportunities LP v. Schwartz Levitsky Feldman LLP
, 2014 ONSC 4118, 31
    B.L.R. (5th) 46, have applied similar considerations.

[45]

Furthermore,
    the respondents submit that in
Van Breda
, the Supreme Court recognized
    the distinction between the real and substantial connection test as a conflicts
    rule and as a constitutional principle.  The Supreme Court elaborated on the
    test as a conflicts rule, including discussion of presumptive connecting
    factors and their potential for rebuttal, but declined to elaborate on the
    content of the constitutional principle, deferring that question to an
    appropriate case in the future.  The respondents submit that the motion judge
    properly concluded that asserting jurisdiction over the AFCs would offend the
    constitutional requirements of order and fairness.  This
i
s
    because a
n Ontario
judgment would not be recognized
by foreign courts
,
creating a
potential for double-recovery
.

Furthermore,
AFCs would reasonably expect to bring their
    actions in their home jurisdiction.

[46]

The
    Attorney General, in its capacity as intervener, submits that the motion judge
    erred in holding that jurisdiction existed only if the AFCs were present in
    Ontario or consented to the Ontario courts jurisdiction and in holding that
    the real and substantial connection test was constitutionally inapplicable.

[47]

The
    Attorney General points to over 25 years of jurisprudence from the Supreme
    Court establishing that the real and substantial connection test governs
    whether a provincial superior court may assume jurisdiction over a dispute for
    both common law and constitutional purposes.
Van Breda
did not invite
    judges to devise their own test for jurisdiction.  It held the opposite,
    expressly cautioning judges against resolving jurisdiction issues on a
    case-by-case,
ad hoc
basis.  The common law conflicts rules must
    recognize Canadian constitutional, statutory, and common law requirements.  The
    real and substantial connection test strikes an appropriate balance between
    these objectives.

[48]

The
    Attorney General further argues that neither the real and substantial
    connection test, nor ss. 27(3), 28(1), and 29(3) of the
CPA
(the opt out
    provisions), are constitutionally inapplicable. The real and substantial
    connection test promotes the purposes of the
CPA
.  In contrast, the
    motion judges holding defeats those purposes.

[49]

The
    Attorney General also challenges the factors considered by the motion judge in
    her analysis of jurisdiction.  Consideration of foreign enforceability conflate
s
the analysis of jurisdiction
simpliciter
with
forum
    non conveniens
.  Requiring a plaintiff to prove that it can enforce a
    judgment before a court has jurisdiction reverses the onus and upends the
    analysis set out in
Van Breda
.  The risk of duplicative litigation and
    double recovery are inherent in the nature of conflicts of laws problems and
    are not fatal to the assumption of jurisdiction.  Risk is one of many factors a
    court may consider.

[50]

Lastly,
    the Attorney General submits that the real and substantial connection test is a
    constitutional imperative.  The presence or consent test unduly narrows the
    jurisdiction of provincial superior courts to deal with matters that may have a
    real and substantial connection to a province and may leave prospective class
    members who have suffered harm, which is real and connected to Ontario, without
    the ability to seek redress in Ontario.

(b)

Discussion

(i)

The Evolution of the Real and
    Substantial Connection Test

[51]

As
    Lebel J. observed at para. 66 of
Van Breda
, striking a proper balance
    between flexibility and predictability, or between fairness and order, has been
    a constant theme in Canadian jurisprudence on jurisdiction.

[52]

Starting
    in 1990 with the Supreme Courts decision in
Morguard Investments Ltd. v.
    De Savoye
, [1990] 3 S.C.R. 1077, and continuing with this courts decision
    in
Excalibur
, overturning
Perell
    J.s decision in
2014 ONSC 4118, and for which leave to appeal was refused,
    the real and substantial connection test has been a dominant, although not
    exclusive, test governing the issue of jurisdiction.

[53]

In
Morguard
, the Supreme Court addressed jurisdiction in the context of
    extra-provincial enforcement of judgments.
Justice
La
    Forest noted at p
p. 1108-1109
that the real and
    substantial connection approach to jurisdiction provides a reasonable balance
    between the rights of the parties.  In
Beals v. Saldanha
, 2003 SCC 72,
    [2003] 3 S.C.R. 416, the Supreme Court expanded the application of the real and
    substantial connection test to the recognition of foreign judgments.
Justice
Major held at para. 23 that a substantial connection
    with the subject matter of the action w
ill
satisfy the
    test even in the absence of such a connection with the defendant in the
    action.  Accordingly, a Canadian court could assume jurisdiction if the foreign
    court had a real and substantial connection with the subject matter of the
    action
or the parties
.
Justice Major
    further noted at para. 37 that t
he presence of traditional indicia of
    jurisdiction such as attornment, consent, residence, and presence serve to
    bolster the real and substantial connection
.

[54]

In
Van Breda
, a case dealing with the assumption of jurisdiction in tort
    actions, Lebel J. observed that, in developing the real and substantial
    connection test, the Supreme Court had crafted a constitutional principle
    rather than a simple conflicts rule.
Justice
Lebel
    sought to draw a clearer distinction between the constitutional and private international
    law dimensions of the test.  The constitutional dimension of the rule concerns
    the territorial limits of jurisdiction. The real and substantial connection
    test establishe
s
boundaries within which conflicts
    rules could be applied. The purpose of the constitutionally
-
imposed
    territorial limit is to ensure the existence of the relationship or connection
    needed to establish the legitimate exercise of state power. A weak or
    hypothetical connection cast
s
doubt on the legitimacy
    of the exercise of state power over the affected persons.  In contrast,
    conflict rules decide when jurisdiction can be assumed over a dispute, what law
    will govern a dispute, or how an adjudicative decision from another
    jurisdiction will be recognized and enforced. As Lebel J. stated, at para. 33,
    The constitutional territorial limits  are concerned with setting the outer
    boundaries within which a variety of appropriate conflicts rules can be
    elaborated and applied.

[55]

In
    recognizing the need to develop an appropriate framework for the assumption of
    jurisdiction based on the real and substantial connection test, Lebel J. specified,
    at para. 73, that the framework for the assumption of jurisdiction cannot be
    an unstable,
ad hoc

system made up on the fly on a
    case-by-case basis

however laudable the objective of
    individual fairness may be. He went on to s
ay
, at
    paras. 78-79:

In my view, identifying a set of relevant presumptive
    connecting factors and determining their legal nature and effect will bring
    greater clarity and predictability to the analysis of the problems of
    assumption of jurisdiction, while at the same time ensuring consistency with
    the objectives of fairness and efficiency that underlie this branch of the law.

From this perspective, a clear distinction must be maintained
    between, on the one hand, the factors or factual situations that link the
    subject matter of the litigation and the defendant to the forum and, on the
    other hand, the principles and analytical tools, such as the values of fairness
    and efficiency or the principle of comity. These principles and analytical
    tools will inform their assessment in order to determine whether the real and
    substantial connection test is met. However, jurisdiction may also be based on
    traditional grounds, like the defendants presence in the jurisdiction or
    consent to submit to the courts jurisdiction, if they are established. The
    real and substantial connection test does not oust the traditional private
    international law bases for court jurisdiction.

[56]

Fairness,
    efficiency, and comity inform the test but are not stand alone connecting
    factors. At para. 84, Lebel J. specifically excluded general principles or
    objectives of the conflicts system, such as fairness, efficiency or comity
    from the list of presumptive connecting factors, although he did note that
    these principles may influence the appropriateness of new factors.

[57]

Justice
    Lebel outlined a list of presumptive connecting factors for torts.  The onus is
    on a plaintiff to establish that one or more of the presumptive factors
    exists.  If one or more of the presumptive connecting factors applies, the
    court should assume that it has jurisdiction over the claim.  However, the
    presumption of jurisdiction is rebuttable.  A defendant may rebut the
    presumptive effect of any of the factors to demonstrate that the court lacks
    jurisdiction.  To do so, the defendant must establish, as outlined at para. 95,
    that the factor does not point to any real relationship between the subject
    matter of the litigation and the forum, or that the relationship between the
    subject matter and the forum is weak.

[58]

The
    Supreme Court set out the following four, non-exhaustive presumptive connecting
    factors for tort cases that,
prima facie
, entitle a court to assume
    jurisdiction over a dispute:

(a)   the defendant
    is domiciled or resident in the province;

(b)   the defendant carries on business in the province;

(c)   the tort was committed in the province; and

(d)   a
    contract connected with the dispute was made in the province.

[59]

At
    para. 91, Lebel J. described the following considerations to assist in
    identifying new presumptive factors:

(a)   similarity
    of the connecting factor with the recognized presumptive connecting factors;

(b)   treatment of the connecting factor in the case law;

(c)   treatment
    of the connecting factor in the statute law; and

(d)   treatment
    of the connecting factor in the private international law of other legal
    systems with a shared commitment for order, fairness and comity.

[60]

Justice Lebel also discussed whether a court would be limited in
    hearing only that part of a multi-jurisdictional claim that could be directly
    connected with the jurisdiction. In holding that a court would not be limited
    in such a manner, he
explained at para. 99 that [t]he purpose of the
    conflicts rules is to establish whether a real and substantial connection
    exists between the forum, the subject matter of the litigation and the
    defendant.

Where a real and
    substantial connection exists
in respect of a factual or legal
    situation, the court must assume jurisdiction over all aspects of the case.

[61]

Jurisdiction
    may therefore be based on traditional grounds such as presence or consent, or
    on the existence of a real and substantial connection.  Moreover, as stated in
Beals
    v. Saldanha
, the former may bolster the latter.

[62]

That
    traditional grounds are an appropriate basis for jurisdiction was reiterated in
Chevron Corp. v. Yaiguaje
, 2015 SCC 42, [2015] 3 S.C.R. 69, a case involving
    an action for recognition and enforcement of a foreign judgment in Ontario.  In
    such an action, there is no need to establish a real and substantial connection
    between the enforcing forum and either the judgment debtor or the dispute.

[63]

Of
    course, despite having jurisdiction, a court has discretion to decline to
    exercise its jurisdiction and to stay the proceedings based on the doctrine of
forum
    non conveniens
.

[64]

For
    the purposes of this appeal, however, the first issue to be addressed is the thorny
    issue of the intersection of jurisdiction and class action proceedings, the
    topic I will next discuss.

(ii)

Class Action Proceedings and the
    Unresolved Dilemma of Jurisdiction

Class Action
    Regime

[65]

Having
    discussed the applicable principles for jurisdiction, it is helpful to return
    to first principles governing class actions.

[66]

A
    class action is brought by a named plaintiff who serves as the representative
    plaintiff for a class of named or unnamed persons.  The AFCs are an example of
    an unnamed class.

[67]

In
    an article entitled Are National Class Actions Constitutional
?

(2010)
26 Natl J. Const. L. 279, Peter W. Hogg and S.
    Gordon McKee provide a concise outline
, at p. 281,

of the gatekeeping function of the court in a class action
    proceeding:

Before a class action can proceed to the trial of the common
    issues, it must be certified by the court.  The court needs to be satisfied
    that the proceedings disclose a cause of action, that there is an identifiable
    class, that the class will be adequately represented by the representative
    plaintiff, that the claims of the class raise common issues, and that the class
    proceeding is the preferable procedure to adjudicate the common issues of the
    claims asserted in the action.  If certification is denied, the class action
    will not proceed to trial, although the plaintiffs will then be free to bring
    individual actions against the defendant.  Only if certification is granted,
    does the class action proceed to trial.

[68]

Class
    actions were available at common law.  As long ago as 1938, class action
    legislation was introduced in the United States.  In Canada, the Province of
    Quebec was in the vanguard introducing class action legislation in 1978.
    Ontario followed in 1993.  Now, the federal government and all provinces except
    Prince Edward Island have enacted class action legislation. As has frequently
    been described, there are three public policy purposes that have fueled the
    development of class actions: access to justice, behaviour modification, and
    judicial economy.

Expansive and Restrictive
    Approaches to Jurisdiction over AFCs in Class Actions

[69]

Cases
    involving class actions raise unique jurisdictional challenges.  Unlike traditional
    litigation, which consists of an identifiable plaintiff actively selecting a
    jurisdiction and hence consenting to the jurisdiction, class actions involve at
    least one identifiable representative plaintiff and frequently unidentified
    members of a larger class. Typically in litigation, the question is whether the
    Ontario court has jurisdiction over a defendant, not whether it has
    jurisdiction over AFCs.  Indeed, the purpose of class actions is, in part, to
    confer a benefit on absent class members.  It is difficult to reconcile class
    actions that include unidentified claimants with traditional approaches to
    jurisdiction. In those circumstances, a real and substantial connection on an
    individualized basis may be elusive.  To allow for jurisdiction, either the
    members must be identified and present or consent to jurisdiction or there must
    be another doctrinal mechanism available to anchor jurisdiction.

[70]

Two
    very different approaches to this jurisdictional dilemma have emerged, one
    expansive and the other more restrictive.

[71]

One
    arm of the expansive approach focuses on the commonality of interest between
    the claims of resident and non-resident class members, as Tanya
J.
Monestier notes in her article Personal Jurisdiction Over
    Non-Resident Class Members: Have I Gone Down the Wrong Road?
(2010)
    45
Tex
.
Int'l L
.
J
.

537, at pp. 546-548.

[72]

Meeking
provides an example of this more expansive approach.  In
Meeking
,
the
    Manitoba Court of Appeal focused on commonality between resident and
    non-resident class members to provide a basis for jurisdiction.  In that
    analysis, the identity or confluence of an interest shared between non-resident
    plaintiffs and the representative plaintiff served to anchor jurisdiction in
    circumstances where the court had territorial jurisdiction over both the
    representative plaintiff and the defendant.
McCutcheon v. The Cash Store
(2006), 80 O.R. (3d) 644 (S.C.J.) (
Meeking
s Ontario counter-part);

and
Harrington

v. Dow Corning Corp.,
2000 BCCA 605, 82 B.C.L.R. (3d) 1, leave to appeal
    refused [2001] S.C.C.A. No. 21, both adopted the same approach.

[73]

The
    expansive approach has attracted criticism. In particular, Professor Monestier
    argues that the common issues approach is artificial and also conflates the
    test for jurisdiction with the test for certification.

[74]

Similarly,
but
without citing
Meeking
or the other aforementioned cases
, Hogg
    and McKee dismiss
an
approach where a real and
    substantial connection for the entire class
is established
    through
a real and substantial connection between the representative
    plaintiff and the forum
,
coupled with
commonality
    between the
issues
of the representative plaintiff and
    the rest of the class.
They too argue that this conflates certification
    (which requires common issues) and the test for jurisdiction.

[75]

Another
    arm of the expansive view of class action jurisdiction is reflected in American
    jurisprudence.  In
Phillips Petroleum Co. v. Shutts
, 472 U.S. 797 (1985),
    the U.S. Supreme Court held that in a class action, so long as the defendant
    had a sufficient connection to the forum state, the forum court had
    jurisdiction over a plaintiff class that included non-resident persons with no
    connection to the forum state provided they had been given adequate notice plus
    an opportunity to be heard, an opportunity to opt out of the action, and there
    was adequate representation by the representative plaintiff.

[76]

Justice
    Rehnquist reasoned at pp. 808-810 that non-resident plaintiffs are not in the
    same degree of jeopardy as out-of-state defendants because their interests are
    protected by the representative plaintiffs. Moreover, a courts inquiry at the certification
    stage helps ensure that those interests will be adequately represented and are
    sufficiently common with the interests of the representative plaintiffs. See
    also
Ortiz Fibreboard v. Corp.
,

527 U.S. 815 (1999), at pp. 847-848;
Carlough v. Amchem Prod., Inc.,
10 F.3d
    189 (3rd Cir. 1993)
, at p. 199.

[77]

At p. 291 of their article,
Hogg and McKee dismiss the
    approach taken in
Phillips

for Canada because it is based on
    due process rights rather than the doctrine of extraterritoriality applicable
    in this country.  It bears noting that their conclusion serves to negate class
    actions with unidentified class members, be they national or international.

[78]

It
    also bears noting that, although not identified as such, at its heart, the
    approach adopted by Sharpe J.A. in
Currie
is akin to the formulation
    set out in
Phillips
. As I later discuss in greater detail,
Currie

similarly held that jurisdiction over non-resident plaintiffs need not turn
    on whether they have opted into a class proceeding, so long as their interests
    are adequately represented and they are accorded sufficient procedural fairness,
    including adequate notice.

[79]

In
    contrast, a more restrictive approach to the real and substantial connection
    test requires that there be a substantive connection, beyond common interests,
    between the non-resident class members and the adjudicating forum: Monestier,
    at p. 548. For example, in
HSBC v. Hocking,
2008 QCCA 800
,
[2008]
    R.J.Q. 1189,
the Quebec Court of Appeal held that a shared interest in
    the common issues was insufficient to establish a real and substantial connection
    where
there was otherwise no
connection
to the jurisdiction
.

[80]

The
    difficulty with the restrictive approach, as Professor Monestier observes, is
    that it is almost impossible for a court to assert jurisdiction over a
    non-resident class member owing to a lack of actual connection between such a
    class member and the adjudicating forum. She notes, at p
p
.
551-
552:

The fundamental problem with a restrictive approach to the real
    and substantial connection test is that it essentially undercuts the ability of
    the class action to act as a vehicle for the resolution of issues that
    transcend provincial borders and are perhaps best suited to being addressed in
    class form.

[81]

An
    obvious problem created by the lack of a uniform approach to class action
    jurisdiction, as Hogg and McKee discuss at p
p
. 286
-287
, is that a defendant needs to be assured that it will
    not be exposed to further litigation on the same issue by non-resident members
    of the plaintiff class. If the enforcing court does not regard the adjudicating
    forum as having jurisdiction over the non-resident class members, the judgment
    will not be enforceable and nothing prevents the non-resident class member from
    proceeding with a claim in the enforcing forum. This creates concern about
    fairness to the defendant, who remains exposed to the risk of re-litigation.
    See also Monestier, at pp. 552-554.

Opt In and Opt Out Regimes

[82]

One
    option that avoids the jurisdictional issues associated with the real and
    substantial connection test when it comes to non-resident class members is the
    implementation of opt in and opt out regimes.

[83]

An
    opt in or opt out approach is reflected in certain statutes.  In Quebec and
    Ontario, a class action judgment is binding on all members of the class unless
    they have opted out of the proceeding:
Code of Civil Procedure,
R.S.Q.,
    c. C-25, art. 10
27

and the
CPA
,
    s. 27(3).  In British Columbia, in contrast, the governing statute provides for
    an opt out for class members who are residents of the province and an opt in
    provision for those who are resident outside of that province:
Class
    Proceedings Act,
R.S.B.C. 1996, c. 50
, ss. 16(1), 16(2)
.
    Clearly a non-resident class member who has opted into the proceeding has
    consented to the jurisdiction of the court and is bound by the result.

[84]

While
    Professor Monestier notes, at p.
558
, that the opt in
    approach is doctrinally sound, it also thwart
[
s
]
the policy objectives of class actions
,
such that they are no longer able to achieve the very goals for which they were
    designed.

[85]

In
    a similar vein, Professor Janet Walker, in Cross Border Class Actions: A View
    from Across the Border

(
2004
)

3
Mich. S
t.
L. Rev. 755 observes that
    the opt in alternative may provide for an under-inclusive class.  She states at
p.
770:

First, to the extent that class actions are intended to have a
    regulatory affect by requiring market actors to internalize the costs of
    wrongful conduct, under
-
inclusive plaintiff classes
    mean that the costs internalized are less than the costs generated by the
    wrongful conduct  Second, to the extent th
at
class
    actions are intended to facilitate compensation for wrongs suffered, under
-
inclusive plaintiff classes result in the failure of members
    of the plaintiff class to receive compensation  Finally, to the extent the
    class actions are intended to also bring closure to matters for defendants, the
    under
-
inclusiveness of plaintiff classes means that
    defendants will be left with unresolved claims that might be brought in other
    actions or in other fora.

[86]

Opt
    out regimes also present certain challenges, as Hogg and McKee comment at p.
    287:

We have noticed that the courts will insist that sufficient
    notice be given to the members of the plaintiff class, but so far the courts
    have not insisted that actual notice be given to every member of the class.
    Therefore, a class action judgment in Ontario (for example) may apply to some
    members of the plaintiff class who in fact know nothing about the proceedings
    brought on their behalf.

[87]

Professor
    Monestier posits that it is necessary to rethink whether a real and substantial
    connection is needed to ground jurisdiction over a non-resident plaintiff class,
    noting at p. 539 that
[t]
he test cannot be readily
    transposed to the separate question of whether a court has jurisdiction over an
    amorphous class of unnamed plaintiffs
.
  She suggests
    that courts should instead reorient the analysis towards insuring that
    procedural safeguards are afforded to non-resident plaintiffs.

(iii)

Jurisprudence on Class Actions and Jurisdiction

[88]

In
    Ontario, the real and substantial connection test has been consistently applied
    to the question of jurisdiction in class actions. The first case to deal with the
    issue of jurisdiction over non-resident class members in Ontario was
Currie
, released

in 2005
.
The particular issue in
Currie
was whether an Illinois judgment approving the settlement of a
    global class action against McDonalds was enforceable against Currie, an
    Ontario resident, so as to preclude him from launching his own class action in
    Ontario against McDonalds Canada.

[89]

Justice
Sharpe, writing for th
is
court, noted
at paras. 14-15
that legislation in
    several provinces specifically contemplated the inclusion of non-resident class
    members, and
that
strong policy reasons favoured the
    fair and efficient resolution of interprovincial and international class action
    proceedings.  In appropriate cases, conflict of law rules should recognize the
    importance of having claims finally resolved in one jurisdiction.  He
    highlighted one of the concerns associated with such enforcement that had been
    identified by Henry Paul Monaghan in Antisuit Injunctions and Preclusion against
    Absent Nonresident Class Members (1998) 98 Colum
.
L
.
Rev
.
1148.  The article describes
, at pp. 1155-1156,
the need to guard against potential
    abuses arising from class action defendants using the settlement of class
    action proceedings as a means to limit liability at bargain-basement prices.

[90]

Justice
Sharpe provided guidance on addressing th
is
and other concerns arising from class actions that
    included non-resident class members.  In doing so, he explained at para. 20 that
    the position of a class action plaintiff is not the same as that of a typical
    defendant
,
and that rules for recognition and
    enforcement of class action judgments should reflect those differences:

Class action regimes typically impose upon the court a duty to
    ensure that the interests of the plaintiff class members are adequately represented
    and protected.  This is a factor favouring recognition and enforcement against
    unnamed class members.

[91]

To
    address the concern for fairness, Sharpe J.A. held, at para. 25, that the court
    had to be satisfied with the procedures adopted in the proceeding:

Respect for procedural rights, including the adequacy of
    representation, the adequacy of notice and the right to opt out, could fortify
    the connection with
[
the foreign] jurisdiction and
    alleviate concerns regarding unfairness.

[92]

He
    rejected the need for an opt in regime, noting that this would effectively negate
    meaningful class action relief.  While he acknowledged that it may be easier to
    justify the assumption of jurisdiction in interprovincial cases than in
    international cases, a failure to opt out could be seen as a form of passive
    attornment sufficient to support jurisdiction over a non-resident, unnamed
    plaintiff, provided that certain conditions were met: a real and substantial
    connection link
s
the cause of action to the foreign
    jurisdiction
,
the rights of non-resident class members
a
re adequately represented, and non-resident class members
a
re accorded procedural fairness, including adequate notice.

[93]

Justice
Sharpe ultimately determined
, on the
    case before him,
that because the unnamed plaintiffs were not afforded
    adequate notice, an Ontario court ought not recognize and enforce the foreign
    judgment against the Canadian representative class member and the other
    Canadian class members he sought to represent.

[94]

The
    principles described in
Currie
were followed by Strathy J. in
Ramdath
and
McKenna
, both decided in 2010
.
    In
Ramdath,
Strathy J. concluded that the court should take jurisdiction
    over non-resident students of George Brown College in a class action claim
    alleging that the College misrepresented the benefits of a certain programme.
    He held that, provided the conditions in
Currie
were met, neither
    foreign law evidence that a Canadian class action judgment might not be given
    preclusive effect in a foreign jurisdiction, nor the absence of actual notice,
    should preclude an Ontario court from taking jurisdiction over the entire class.
    There was a real and substantial connection between Ontario and the subject
    matter of the action, and procedural fairness could be provided to the plaintiff
    class.  In
McKenna,
Strathy J. again applied the real and substantial
    connection test and the framework set out in
Currie
in assessing the
    courts jurisdiction over non-resident class members.  He noted at para. 108:

Although
Currie
involved the enforcement in
    Ontario of a judgment in a foreign class action, the mirror image of the
    principles stated by the Court of Appeal are applicable to the exercise of
    jurisdiction by this court in a class action that seeks to include class members
    outside the jurisdiction.

[95]

As
    noted earlier, in 2006 in
McCutcheon
, Cullity J. certified a class
    proceeding involving non-residents.  He determined that he could bind
    non-resident class members to an Ontario proceeding because there was a
    sufficient real and substantial connection between non-resident class members
    and Ontario, and the principles of order and fairness were met.
Justice
Cullity concluded that a common interest between the
    class members served to establish the real and substantial connection.
    Similarly, In
Baxter v. Canada (Attorney General)
, [2005] O.T.C. 391
    (S.C.J.), Winkler J. (as he then was) observed that certified common issues in
    a class action could serve as a basis for jurisdiction over extra-provincial
    parties.

[96]

These
    cases all pre-date
Van Breda
,
    which was released in 2012,
and must now be read through the lens
    of that decision.  As discussed earlier,
Van Breda
confirmed the real
    and substantial connection test as a constitutional imperative and a conflict
    of law rule, and founded presumptive connecting factors which, if present,
    establish jurisdiction.

[97]

After
Van Breda
, in its 2013 decision in
Meeking
, the Manitoba
    Court of Appeal grappled with issues similar to those in this appeal except
    that it dealt with recognition and enforcement of an Ontario judgment against
    non-resident, unnamed plaintiffs.  There, the court held at paras. 93 and 97 that:

The
    Canadian jurisprudence to which I have referred that would allow for common
    issues to be considered as a presumptive connecting factor in the real and
    substantial connection test is persuasive.  Fairness to non-resident
    plaintiffs is achieved through the notification process and opt-out provisions,
    while, at the same time, the policy considerations favouring class actions
    described by McLachlin C.J.C. in
Western Canadian Shopping
[
Centres Inc. v. Dutton
, 2001 SCC 46, [2001] 2 S.C.R. 534]
are fulfilled.  Further, the constitutional principle of
    federalism is respected.

Therefore, I would conclude that, in
    circumstances where the court has territorial jurisdiction over both the
    defendant and the representative plaintiff in a class action proceeding, common
    issues between the claim of the representative plaintiff and that of
    non-resident plaintiffs is a presumptive connecting factor, sufficient to give
    the court jurisdiction over non-resident plaintiffs.

[98]

Subsequently,
Abdula v. Canadian Solar Inc
., 2015 ONSC 53, 126 O.R. (3d) 459,
    adopted the same approach at paras. 58-59.

[99]

Finally
    and most recently, in 2016, this court addressed the application of the real
    and substantial connection test in
Excalibur
.
A
t
    para. 34
,
MacFarland J.A. (Cronk J.A. concurring)
    affirmed that the test to determine whether to take jurisdiction over foreign
    class members begins with an inquiry into jurisdiction
simpliciter
, on
    the principles set out in
Club Resorts Ltd. v. Van Breda
. She noted
    that
Currie
was not to be interpreted as standing for the proposition
    that an Ontario court should approach the issue of taking jurisdiction in a
    restrained manner.   Furthermore, the reasonable expectations of the non-resident
    class members were not to be treated as an independent consideration in
    determining whether to take jurisdiction in a global class proceeding.

[100]

In
Excalibur,
the representative plaintiff and the respondent accounting firm were both
    based in Toronto, but the remaining 56 plaintiffs were non-residents of
    Ontario.
Justice
Mac
F
arlan
d
concluded that three of the four presumptive connecting
    factors identified in
Van Breda
were present. There were also no serious
    concerns of order and fairness as the identity of all but one class member was
    known and all class members could receive appropriate notice.

[101]

In dissent,
    Blair J.A. reasoned that the motion judge had not disputed that the court had
    jurisdiction
simpliciter
and could take jurisdiction; rather the
    motion judge was addressing whether the Ontario court should take
    jurisdiction.
Justice
Blair held that the motion judge
    did not err in considering the reasonable expectations of the proposed
    non-resident class members or in taking an approach of restraint to the issue
    of whether to assume jurisdiction over the global class.

[102]

The Supreme
    Court refused leave to appeal
Excalibur
in June of this year.

(iv)

The motion judge erred in rejecting the real and
    substantial connection test

[103]

In light of the
    foregoing, it is clear that the motion judge erred in simply anchoring her
    jurisdiction analysis in a negation of the traditional bases for jurisdiction,
    namely presence or consent, and in failing to apply the real and substantial
    connection test articulated in
Van Breda
.  As explained in
Van Breda
,
    order, fairness, and comity are not independent roots of jurisdiction but are
    subsumed by the real and substantial connection test.  As stated by Lebel J.,
    the purpose of the constitutionally
-
imposed territorial
    limit is to ensure the existence of the relationship or connection needed to
    establish the legitimate exercise of state power.

[104]

It is true, as
    noted by the motion judge and as stated by Lebel J. at para. 79 of
Van Breda
,
    that jurisdiction may be based on traditional grounds. This would include
    presence in the jurisdiction and consent to the jurisdiction.  However, relying
    on those factors to ground jurisdiction is very different from rejecting
    jurisdiction based on their absence.  The motion judge erred in doing the
    latter.  Here the traditional grounds for jurisdiction were not available.  As
    such, the real and substantial connection test had to be the start of the
    analysis.

[105]

As recognized by
    Sharpe J.A. in
Currie
and the commentary discussed previously,

the
    situation of unidentified non-resident class members in a proposed class action
    presents unique concerns with respect to ensuring that a sufficient connection
    exists to justify taking jurisdiction over them. In my view, this is what the
    Courts of Appeal in Ontario and Manitoba sought to address in
Currie
pre-
Van
    Breda
,
and in
Meeking
,
    post-
Van Breda
, albeit in different ways.  Moreover, it seems to me
    that a robust analysis may encompass the approach of both appellate courts.

[106]

In setting out
    the contours of what the framework should be in these circumstances, I will
    address a preliminary issue raised during the appeal, which informs what is
    relevant to the assessment. I agree with the appellants that jurisdiction is
    not a function of foreign recognition and enforcement standing alone.  Put
    differently, when addressing jurisdiction, issues of foreign recognition and
    enforcement are not preclusive of all other factors.  Here, the motion judge
    permitted foreign law governing recognition to dominate her analysis to the
    exclusion of all other relevant factors.

[107]

Turning to the
    appropriate framework, jurisdiction may be established 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 as described in
Currie
are provided,
    thereby serving to enhance the real and substantial connection between AFCs and
    Ontario.

[108]

In my view, this
    framework provides the necessary safeguards to establish that jurisdiction
    properly exists and ensures the protection of the values of order and fairness.
    Quite apart from that consequence, a positive result of this framework is that
    the objectives at the heart of class actions are served.

[109]

As the motion
    judge had already determined that the Ontario court did not have jurisdiction
    over the AFCs, her subsequent analysis of the issue of jurisdiction was very
    brief.  She agreed at para. 210 with the original respondents that the new
    presumptive factor described in
Meeking
could not be recognized, as
    this would be inconsistent with
Van Breda
s guidance that, in
    identifying new presumptive factors, courts should consider the treatment of
    the connecting factor in the private international law of other legal systems
    having a shared commitment for order, fairness, and comity.  Then, after
    describing both the appellants and the respondents positions, she concluded
    at paras. 213-214:

It cannot be said here as it was in
Currie
,
Ramdath
,
McKenna
and
Excalibur
[4]

for example, that it would come as no surprise to, or it would not be
    unreasonable from the perspective of, the [AFCs] that legal claims arising from
    their purchase of Airfreight Shipping Services outside Canada would be
    litigated in an Ontario court.

I am not satisfied that in these circumstances the real and
    substantial connection test is met.

[110]

Apart from her
    discussion of the new presumptive factor in
Meeking
and
the relevance of
reasonable expectations, it is unclear
    whether
the motion judge
accepted all or some of the
    respondents submissions and some or none of those of the appellants regarding
    the application of the presumptive connecting factors discussed in
Van
    Breda
.
Given her rejection of the real and substantial
    connection test and in the absence of a consideration of the established
    presumptive connecting factors, it falls to this court to conduct the
    jurisdiction analysis anew applying the aforementioned analytical framework.

[111]

Dealing with the
    first factor, unquestionably, there is a real and substantial connection
    between the subject matter of the action and Ontario.  All of the three
    respondents carry on business in Ontario.  As Gascon J. stated in
Chevron
    Corp.
at para. 89, If a defendant maintains a business in Ontario, it is
    reasonable to say that the Ontario courts have an interest in the defendant and
    the disputes in which it becomes involved.  Moreover, there is jurisdiction
    over the three respondents based on presence in the jurisdiction and over the
    three representative plaintiffs based on presence and consent to the
    jurisdiction.  Airia, located in London, Ontario, purchased shipping services
    for transport from Ontario and Startech, also located in London, Ontario, purchased
    shipping services for transport from and to Ontario.  QCS is a German freight
    forwarder
that
purchased shipping services to Canada
    from Air Canada and BA, and also purchased services for shipment from Canada
    using agents located in Ontario.

[112]

The claim of the
    plaintiffs alleges the tort of conspiracy.  There is also a claim for damages
    for breach of the
Competition Act
.  Three specific meetings in
    furtherance of the conspiracy are alleged to have taken place in Canada, one of
    which was in Toronto on June 22, 1999.  Although the appellants define the
    Relevant Period for the conspiracy as beginning on or about January 1, 2000
    and continuing until September 11, 2006, the Toronto meeting is pleaded as
    being in furtherance of the conspiracy.  The respondents argue that the
    elements required to complete the tort of conspiracy did not occur in Canada.
    However, this is not determinative: see
Central Sun Mining Inc. v. Vector
    Engineering Inc.
, 2013 ONCA 601, 117 O.R. (3d) 313.
Moreover,
    the tortious conduct relates to air freight shipments linked to Canada, which served
    as either the shipments country of origin or country of destination.

[113]

Turning to the
    second factor, there are common issues between the representative plaintiffs
    over whom the court has jurisdiction and the AFCs.  In her decision on the
    representative plaintiffs related motion for certification, reported at 2015
    ONSC 5352, the motion judge held that the representative plaintiffs claim
    raised common issues among the members of the class she certified.  The common
    issues certified by the motion judge relate to the core question of whether the
    respondents are liable to the class members for the tort of conspiracy and
    breaches of the
Competition Act
arising from the supply of airfreight
    shipping services to and from Canada in the relevant time period.  These common
    issues clearly extend to the AFCs.

[114]

Lastly, as a
    result of the settlements with some of the other defendants, the AFCs have been
    afforded the three procedural safeguards described in
Currie
.  Notice
    has been effected in 140 countries and as mentioned, mailed notice has gone to
    310,000 persons.  The designed website had received more than 54,000 visitors
    from 135 countries as of November 2008 and the interactive telephone service
    had fielded 3,900 calls.  As of January 2009, 270 class members from 33
    different countries registered to receive further information about the
    Canadian litigation by mail.  Each round of settlements involved a further
    notice campaign, including direct mail.

[115]

The respondents
    argued before the motion judge that the notice program should not be considered
    as it amounted to an action to carry out the Lufthansa settlement that, based
    on the terms of the settlement, was not to be referred to or received in
    evidence in any proceeding.  The motion judge chose not to resolve the issue as
    she was of the view that it could not have an effect on the determination of
    the jurisdiction motion and the notice program was irrelevant to the reasonable
    expectations of the AFCs vis-à-vis the respondents and could not prejudice
    them.  There is no evidence that any motion to strike was brought by the
    respondents.

[116]

I do not accept
    that the extent of and facts relating to notice would be captured by the terms
    of the Lufthansa settlement and that such evidence would be precluded from
    consideration in the proceeding against the respondents.  In any event, even if
    they were, I would note that the
CPA
specifically provides for notice.
    Moreover, other significant protections are provided by the
CPA
.  To ensure its fair and expeditious determination, a
    court may make any order under s. 12 that it considers appropriate regarding
    the conduct of the class action.  The certification criteria in s. 5 provide
    that there be a representative plaintiff who would fairly and adequately
    represent the interests of the class among other matters.  Pursuant to s. 29 of
    the
CPA
, a class action may only be discontinued or settled with court
    approval.  Section 31 ensures that class members other than the representative
    plaintiffs are not liable for costs except in respect of the determination of
    their individual claims. Section 32 provides that the court must approve the
    fees of class counsel.  These protections are all provided within the context
    of the gatekeeping function of the court in a class action proceeding as
    previously described in these reasons.  In my view, there is a sufficient basis
    on which to ground jurisdiction over the AFCs.

[117]

As in
Abdula
,
    this is not a case of a defendant being forced to defend a lawsuit in a
    jurisdiction in which it has no connection.  I would also observe that assuming
    jurisdiction over the AFCs serves the objectives of class proceedings.

[118]

Nor has the
    assumption of jurisdiction been rebutted.  The respondents business in Ontario
    includes the sale of services that are the subject matter of the alleged conspiracy.
    As mentioned, part of the conduct in furtherance of the alleged conspiracy took
    place in Ontario, and there are shared common issues between the representative
    plaintiffs and the AFCs.

[119]

Accordingly, I
    would conclude that an Ontario court has jurisdiction over the AFCs in this
    class action proceeding.

(3)     Did the
    motion judge err in her consideration of
forum non conveniens
?

[120]

The
    motion judge also decided that jurisdiction should be declined on the basis of
forum
    non conveniens
.  I will now turn to this issue.

[121]

In
Van Breda
,
    at para. 110, Lebel J. set out a list of non-exhaustive factors to consider in
    the
forum non conveniens
analysis: the location of the parties and the
    witnesses; the cost of transferring the case to another jurisdiction or
    declining the stay; the impact of a transfer on the conduct of the litigation
    or on related or parallel proceedings; the possibility of conflicting
    judgments; problems related to recognition and enforcement of judgments; and
    the relative strength of the connection of the parties.

[122]

The burden is on
    the respondents to show that another jurisdiction has a real and substantial
    connection to the claim and also the availability of a clearly more appropriate
    forum than Ontario:
LaPointe Rosenstein Marchand Melançon LLP v. Cassels
    Brock & Blackwell LLP
, 2016 SCC 30, [2016] 1 S.C.R. 851, at para. 52,
    and
Van Breda
at paras. 103-105.  As stated in Van Breda at para. 104:

Forum non conveniens
recognizes that there is a residual power to
    decline to exercise jurisdiction in appropriate, but limited, circumstances in
    order to assure fairness to the parties and the efficient resolution of the
    dispute.  Consistent with the need to identify a clearly more appropriate
    forum than Ontario, the principle of comity informs the application of
forum
    non conveniens
.

[123]

The motion judge
    accepted the respondent airlines arguments that Ontario was
forum non
    conveniens
and suggested that AFCs pursue individual actions within their
    own jurisdictions.  However, she failed to ask whether any jurisdiction was clearly
    more appropriate than Ontario.  This was in error.

[124]

I would note
    that, in concluding Ontario was not the appropriate forum for the AFCs claims,
    the motion judge relied extensively on this courts decision in
Kaynes v. BP,
    PLC
, 2014 ONCA 580, 122 O.R. (3d) 162.  In
Kaynes
, Sharpe J.A. held
    that the United States and United Kingdom were more appropriate forums than
    Ontario for a class proceeding involving a claim in misrepresentation arising
    out of share purchases, the bulk of which were made on foreign exchanges.

[125]

An examination
    of the facts in
Kaynes
reveals why
Kaynes
is distinguishable from
    the present case.  First, the appellant in
Kaynes
was able to point to
    specific alternative fora that were more appropriate than Ontario, which the
    respondents here have failed to do.  Second, litigation had commenced in the
    U.S. with respect to the exact same claims that the representative plaintiff
    sought to litigate in Ontario, whereas the claims put forth in the present
    class proceeding, dealing with shipments from or to Canada, are not the subject
    of any other existing proceedings. Indeed, the representative plaintiffs seek
    to exclude those claims relating to shipments between Canada and countries with
    ongoing proceedings arising from the same alleged conspiracy.  Third, the
    majority (over 99%) of the proposed class in
Kaynes
lacked a link to
    Canada, as they had purchased shares outside of Canada.  In contrast, to be
    part of the class in the present proceeding, an AFC must have purchased air
    freight services from or to Canada.  Lastly, the substantive claims in
Kaynes
rested in part on U.S. securities law, unlike the claims in the present
    case, which rest solely on Canadian law.

[126]

I would also
    observe that in a subsequent decision of this court in
Keynes v. BP, P.L.C.,
2016 ONCA 601, 133 O.R. (3d) 29, the same panel decided that the stay that it had
    previously imposed on the Ontario action based on
forum non conveniens
was to be lifted.  This was because it had become clear that the plaintiffs
    could not proceed with a claim in the proceedings in the United States as had
    previously been anticipated and the claim was now conceded to be governed by
    Ontario law.  Another forum was not clearly more appropriate.

[127]

In this case, there
    is no such forum.  Furthermore, the evidence clearly demonstrates a robust
    connection between the parties and Ontario.  All of the respondents carry on
    business in Ontario, as do at least two of the representative plaintiffs.  To
    be part of the class, AFCs must have purchased air freight services from the
    respondents for shipments from or to Canada.  Based on the respondents own
    evidence, the majority of these services were rendered for shipments from or to
    Ontario.  Some of the events in furtherance of the conspiracy claim unfolded in
    part in Ontario.  Litigation relating to these same claims has not been brought
    in another jurisdiction and if it is in the future the plaintiffs are excluded
    from the class.  The evidence of the respondents disclosed a minimum of 11,
000
customers in Ontario for shipping services that arguably
    were impacted by the conspiracy.

[128]

Moreover, the
    availability of class actions, contingency fees, and the ability to defer costs
    favour Ontario as the most efficient and cost-effective forum for resolution of
    the conspiracy claim.  The motion judges ruling has the effect of fracturing a
    single class of AFCs into countless possible actions brought by individual AFCs
    in their home jurisdictions.  This outcome lacks the efficiency and
    cost-effectiveness provided by the present class proceedings, while creating
    the potential for a multiplicity of proceedings and increasing the likelihood
    for conflicting decisions.

[129]

Section 28 of
    the
CPA
provides for the tolling of limitation periods.  AFCs can only
    benefit from this particular provision if their claims are prosecuted in
    Ontario.  Moreover, as the conspiracy in issue is alleged to have taken place
    between 2000 and 2006, if the AFCs are denied recourse in Ontario, their claims
    may very well be time-barred in other jurisdictions.  This suggests that the risk
    of re-litigation is low thereby undermining the concerns of order and fairness
    raised by the respondents.

[130]

The motion judge
    found that the court would have to apply the laws of at least 30 countries if
    AFCs were included in the class.  In her decision on the related motion for
    certification, the motion judge held at para. 133 that the issue of whether
    foreign law would have to be applied to the litigation was uncertain at this
    stage of the litigation.  I agree that the extent to which foreign law will
    apply in these proceedings is unclear.

[131]

First, the only
    pleading in which foreign law was pleaded was that of a defendant who has since
    settled the claims against it. Second, foreign law must be proven and in the
    absence of same, domestic law is applicable.  Third, even if foreign law is considered
    to be applicable, it will have to be applied to those AFCs who consented or
    attorned to the jurisdiction in any event.

[132]

Recognition and
    enforcement are two factors of many to consider.  However, it may be dangerous
    to accord primacy to these factors, particularly in the face of the multitude
    of other factors that contribute to the inquiry of
forum non conveniens
.
    This danger is perhaps best illustrated by the evidence on the position taken
    by the respondent BA in related litigation in the U.K. There, it relies on
    orders made by the Canadian courts, including the court in Ontario, approving
    the Lufthansa settlement agreement, to preclude the litigation of claims in the
    U.K.  Here, in essence, its position is to the contrary.

[133]

In conclusion,
    there is no clearly more appropriate forum to resolve the AFCs claims than
    Ontario, and the respondents have not met their onus in demonstrating otherwise.

(4)

Other

[134]

Lastly, in their notice of constitutional issue, the respondents posited
    that even if the court possessed adjudicative jurisdiction over AFCs based on
    the real and substantial connection test, the territorial limits of provincial
    legislative power in s. 92 of the
Constitution Act
would still prevent
    the court from applying ss. 27(3), 28(1), and 29(3) of the
CPA
as set
    out in Appendix A, attached hereto.  Those subsections address opting out,
    suspension of limitation periods that would otherwise apply to those class
    members claims, and settlements.

[135]

The respondents essentially argue that these provisions of the
CPA
alter the substantive foreign laws that would otherwise apply to AFCs by
    suspending foreign limitation periods and ignoring foreign res judicata
    principles, which limit the binding effect of judgments to claimants who ask to
    bring a claim.

[136]

The Attorney General responds that, as a procedural statute, the
CPA
does not confer, modify, or create substantive rights.  Subsections 27(3) and
    29(3) of the
CPA
, which bind all class members to a settlement or common
    issues judgment, including AFCs who have not opted out, cannot prevent a claim
    from being brought in courts outside the province.  The provisions only have
    res judicata effect outside Ontario if and when a foreign court recognizes and
    enforces a settlement or judgment.  Similarly, s. 28(1) does not suspend
    limitation periods in a foreign jurisdiction.

[137]

The motion judge noted, at para. 116 of her reasons, that the
CPA
is a procedural statute and, citing
Bisaillon v. Concordia University
,
    2006 SCC 19, [2006] 1 S.C.R. 666, that class action procedure does not alter
    the jurisdiction of courts nor does it create new substantive rights. That
    said, at para. 204, she stated that she need not address the issue of the constitutional
    inapplicability of those subsections of the
CPA
given her decision on
    the absence of jurisdiction over the AFCs.

[138]

While it was open to the respondents to advance this argument in the
    alternative before this court, they took the position that this issue was not
    under appeal: footnote 62 of the respondents factum.   In all of these
    circumstances, I decline to address the issue of the constitutional
    applicability of these sections of the
CPA
.

E.

Disposition

[139]

For these
    reasons, I would allow the appeal.  As agreed, I would order the respondents to
    pay the appellants $75,000 in costs of this appeal, inclusive of disbursements
    and taxes and order the intervener to bear its own costs.  I would order that
    the matter of costs of the jurisdiction motion be remitted to the motion judge
    for determination.

Released: SEP OCT 17 2017

S.E. Pepall J.A.

I agree. E.E.
    Gillese J.A.

I agree. J.
    MacFarland J.A.

Appendix A

Class Proceedings Act, 1992
, S.O. 1992, c. 6

Subsection 27(3) A judgment on
    common issues of a class or subclass binds every class member who has not opted
    out of the class proceeding, but only to the extent that the judgment
    determines common issues that,

(a) are
    set out in the certification order;

(b)
    relate to claims or defences described in the certification order; and

(c)
    relate to relief sought by or from the class or subclass as stated in the
    certification order.

Subsection 28(1) Subject to
    subsection (2), any limitation period applicable to a cause of action asserted
    in a class proceeding is suspended in favour of a class member on the
    commencement of the class proceeding and resumes running against the class
    member when,

(a) the
    member opts out of the class proceeding;

(b) an
    amendment that has the effect of excluding the member from the class is made to
    the certification order;

(c) a
    decertification order is made under section 10;

(d) the
    class proceeding is dismissed without an adjudication on the merits;

(e) the
    class proceeding is abandoned or discontinued with the approval of the court;
    or

(f) the
    class proceeding is settled with the approval of the court, unless the
    settlement provides otherwise.

Subsection 29(3) A settlement of a
    class proceeding that is approved by the court binds all class members.

[1]
After the motion in issue, and before this appeal, settlements were reached
    with the defendants Cathay Pacific Airways Ltd., Asiana Airlines Inc., and
    Korean Airlines Co. Ltd.  Claims against the other defendants were settled
    previously.

[2]

As subsequently discussed, these are defined as air freight
    cargo shipping services for shipments to or from Canada (excluding shipments to
    and from the United States) during the period January 1, 2000 to September 11,
    2006.

[3]
Understandably, she did not consider t
he Supreme Courts decision in
Chevron Corp.
    v. Yaiguaje
, 2015 SCC 42, [2015] 3 S.C.R. 69, which had not been rendered when the
    jurisdiction motion was argued.
Chevron
addressed the
    issue of jurisdiction in the context of recognition and enforcement of a
    foreign judgment.

[4]

This reference is to the decision of
    the Superior Court that was subsequently overturned.


COURT OF APPEAL FOR ONTARIO

CITATION: Barkhouse (Re), 2017 ONCA 823

DATE:  20171025

DOCKET: C63417

Hoy A.C.J.O., Laskin and Blair JJ.A.

IN THE MATTER OF:  ANDREW BARKHOUSE

AN APPEAL UNDER PART XX.1 OF THE
CODE

Daniel Medd, for appellant, Andrew Barkhouse

Kathleen Farrell, for the respondent, Her Majesty the
    Queen

Gavin S. MacKenzie, for the respondent, Person in Charge
    of the Centre for Addiction and Mental Health

Janice Blackburn, for the respondent, Person in Charge
    of Waypoint Centre for Mental Health Care

Heard:  October 24, 2017

On appeal against the disposition of the Ontario Review
    Board dated, January 5, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals the Disposition, dated January 5, 2017, ordering
    that he be detained at the Waypoint Centre for Mental Health Care  Provincial
    Forensic Division.  His next scheduled review hearing is December 12, 2017.

[2]

The appellant does not challenge the Boards finding that he poses a significant
    threat to public safety.  Rather, he argues that his transfer from CAMH to
    Waypoint was not a necessary and appropriate Disposition for managing that
    risk.  In particular, he argues that the Board failed to consider the context
    of his behaviour in the period prior to his Disposition hearing.  He submits
    that his risk was being managed at CAMH until CAMH advised him that he would be
    transferred from CAMH and that announcement triggered the marked deterioration
    in his behaviour.

[3]

He also argues that the Board did not give sufficient weight to the
    disruption of his therapeutic and familial relationships that would result from
    a transfer.

[4]

In our view, there is no basis to interfere with the Disposition.  The
    Board considered all of the factors set out in s. 672.54 of the
Criminal
    Code
, including the appellants specific rehabilitation and other needs.
    It concluded that the appellants risk could not be safely managed at CAMH, and
    that the safety concerns arising from his violence in recent months overrode
    the concern about disrupting his therapeutic and familial relationships.

[5]

Its decision was reasonable and amply supported by the evidence, including
    the opinion of Dr. Darby.

[6]

Accordingly, the appeal is dismissed.