James S.F. Wilson

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.

Following a prior decision staying the action in favour of arbitration, the defendants sought costs of the motion.

The defendants claimed $61,538.71 all-inclusive, while the plaintiff argued that fees should fall in the range of $25,000.

The court reviewed the billing approach, including reliance on the principle that partial indemnity costs may reflect a percentage of actual billing rates, and assessed the reasonableness of the work performed and hourly rates claimed.

Applying the reasonableness standard and the factors in Rule 57.1 of the Rules of Civil Procedure, the court concluded the work appeared excessive in the circumstances.

The court fixed fees and disbursements at a reduced amount payable by the plaintiff.

The defendants moved to stay the plaintiff's action on the basis that the dispute was subject to an arbitration agreement contained in a Share and Asset Purchase Agreement.

The plaintiff had commenced an action claiming oppressive conduct regarding the calculation of EBITDA, which affected the purchase price of the remaining shares.

The court found that it was arguable the dispute fell within the arbitration clause, which covered disputes over any amount shown in an EBITDA report.

The action was stayed pending the arbitrator's determination of jurisdiction and the merits.

In a securities class proceeding under the Class Proceedings Act, 1992 and the Securities Act, the plaintiffs sought certification for settlement purposes against certain underwriters, approval of three settlements totalling approximately $10.85 million, approval of counsel fees, and approval of a proposed plan of allocation.

The court held that the settlements were fair, reasonable, and in the best interests of the class and approved them, along with counsel fees and the appointment of an administrator.

However, the court rejected the parties’ proposed distribution plan because it excluded class members who purchased shares on the day of the corrective disclosure from any compensation.

Exercising its authority to determine the plan of allocation, the court varied the distribution plan to include those purchasers and approved the modified plan as fair and reasonable.