Denes Agay Rothschild

The plaintiffs brought a motion to certify a class action for settlement purposes against Morgan Stanley regarding alleged price-fixing in the foreign exchange market.

The court found that the criteria for certification under section 5 of the Class Proceedings Act, 1992 were met, noting that the criteria may be less rigorously applied in a settlement context.

The court approved the settlement agreement, which included a payment of USD$2.3 million by the settling defendant.

This appeal concerns the applicable test for determining jurisdiction over absent foreign claimants (AFCs) in a class action involving allegations of conspiracy to fix prices of air freight shipping services for shipments from or to Canada between 2000 and 2006.

The motion judge had rejected the real and substantial connection test and held that jurisdiction could only be established if AFCs were present in Ontario or had consented to the court's jurisdiction.

The motion judge also declined to exercise jurisdiction on the basis of forum non conveniens.

The Court of Appeal allowed the appeal, holding that the real and substantial connection test applies to class actions involving AFCs and that jurisdiction may be established where there is a real and substantial connection between the subject matter and Ontario, common issues exist between representative plaintiffs and AFCs, and procedural safeguards of adequate representation, notice, and opt-out rights are provided.

The court also found that forum non conveniens did not apply as no clearly more appropriate forum existed.

The plaintiffs brought a proposed class action alleging a global price-fixing conspiracy by the defendants regarding airfreight shipping services.

The defendants brought a motion to stay the action as it related to absent foreign claimants, arguing the court lacked jurisdiction simpliciter.

The court granted the motion, finding that the real and substantial connection test should not be applied to establish jurisdiction over absent foreign claimants, as an Ontario judgment would not be recognized abroad, offending principles of order, fairness, and comity.

Alternatively, the court held that even if jurisdiction existed, it would decline it on the basis of forum non conveniens.