New framework to be used for foreign claimants — Law Times

Kevin O’Brien

Oct 30, 2017

Osler partner Kevin O’Brien says the Ontario Court of Appeal (the Court) has provided guidance on whether there is jurisdiction over absent foreign claimants in a global class action originating in Ontario in its overturning of a recent lower court ruling, according to an article in Law Times. In her article, author Shannon Keri discusses how the Court, in Airia Brands Inc. v. Air Canada, has provided a new framework that involves a three-part test on absent foreign claimants in multijurisdictional class actions originating in Ontario. Kevin, a partner in Osler’s Litigation Practice Group, says this could address the issue of predictability.

"Any time the Court of Appeal can address certainty and predictability in multijurisdictional class actions, that is a welcome development," Kevin tells Law Times. At the same time, Kevin cautions that the double recovery could be problematic for defendants “if foreign courts do not recognize Ontario’s jurisdiction and plaintiffs in their home country ‘try to get a better deal,’” he says.

“The defendant may effectively have to pay twice,” Kevin tells Law Times.

Kevin also suggests that if the defendants in a class action seek leave to appeal to the Supreme Court, it could be granted, which is why “its application to global class actions is an important issue,” he explains.

For more information, read Shannon Kari’s article “New framework to be used for foreign claimants” in Law Times.