Sui Generis: Common Law Solutions to Constitutional Problems in Multijurisdictional Class Proceedings
Martin, J. M., University of Toronto Faculty of Law Review
I. THE EXTENT OF THE REAL AND SUBSTANTIAL CONNECTION i. The Morguard test ii. Must the "real and substantial connection" exist between each class member and the forum? II. APPLICATION OF STATUTES BEYOND TERRITORIALITY i. "Opt In" multijurisdictional classes are inconsistent with the policy objectives of class proceedings ii. "Opt-out" multi jurisdictional classes do not themselves enforce provincial statutes beyond provincial borders iii. It is generally not appropriate for a court to certify a class action based on a statutory cause of action III. OVERLAPPING NATIONAL CLASSES IV. CONCLUSION
[A class action] is a claim brought pursuant to the procedural mechanism of the CPA on behalf of a group of people similarly situated claiming relief in respect of a common wrong. It originates from the time of the issuance of the claim or notice of action. It is not an individual action that metamorphoses to a class proceeding when certified.--Justice Warren K. Winkler (as he then was), Logan v Canada (Minister of Health) (1)
Throughout the brief history of class proceedings in Canada, academic debate and jurisprudential inconsistency have attended the prospect of a multijurisdictional class action. The constitutional and procedural difficulties posed by multijurisdictional class actions have remained unresolved for more than a decade. The controversy is founded in the aspects of federalism engaged by the prospect of litigating class proceedings across provincial boundaries. The class proceedings statutes that ostensibly authorize courts to certify class actions are acts of provincial legislatures, which cannot be binding on the residents of other provinces. Even more problematically, the vast majority of class proceedings concern property and civil rights: the exclusive jurisdiction of provincial governments and provincial courts. (2) As the Federal Court is constitutionally restricted to a narrow statutory mandate that does not include jurisdiction over the subject matter of most private-law class actions, (3) the mechanics of prosecuting a nationwide class action in a single provincial court, following the procedure outlined in a single provincial class proceedings act, has attracted a constitutional debate.
At present, various provinces approach class proceedings in different ways, but there is an increasing trend towards legislatures authorizing courts to hear "opt-out" national class proceedings, in which plaintiff class members residing outside the province are presumptively bound by the results of the class proceeding unless they take positive steps to withdraw from the action. Courts in these provinces have been hearing such "opt-out" class proceedings for years, but their vulnerability to constitutional challenge is still a live issue.
Some authorities contend that class proceedings statutes passed by provincial legislatures purport, in effect, to unconstitutionally grant provincial courts the jurisdiction to determine the civil rights of individuals residing outside the territorial boundaries of either that legislature or that court. (4) Other prominent authorities suggest that provincial courts do have the constitutional authority to bind out-of-province class members. Those authorities, however, disagree amongst themselves as to whether or not a "real and substantial connection" must be demonstrated between the claim of each individual class member and the forum hearing the action in order for the court to justify asserting jurisdiction over the whole class (and for other courts to enforce class settlements nationwide), (5) or whether the standard "real and substantial connection" test for assuming and recognizing jurisdiction is simply inappropriate in the class action context. (6)
There can be little doubt that the authority of provincial courts to certify class proceedings extending beyond territorial borders has been implicitly acknowledged by all levels of the judiciary, (7) yet the constitutional capacity for them to do so remains the subject of controversy. …