Lexpert Magazine

LEXPERT MAGAZINE | JANUARY 2019 19 CASE COMMENT FEATURES proximately $2.2 million in the aggregate. e Plaintiffs then appealed that deci- sion to the Ontario Court of Appeal. e Court of Appeal dismissed the Plain- tiffs' appeal on the merits. However, it reduced the costs payable to the Defen- dants by 30% in light of the public inter- est considerations. e case is remarkable for a number of propositions. The Procedure Below At the outset, it is worth noting that the procedure used by the Defendants here was somewhat unusual for class actions. Typi- cally, there is no inquiry on the merits at the time of the certification motion. While the Plaintiffs must establish that the plead- ings disclose a reasonable cause of action as part of the certification test, no evidence is admissible on those issues. Rather, the al- legations set out in the pleadings are taken as true. As the courts have routinely stated, a certification motion is procedural and not intended to be an initial analysis of the merits. Here, the Defendants brought their motion under Rule 21.01(1)(a) of the Rules of Civil Procedure for a determination of law: namely, whether Bangladeshi law ap- plied, whether the limitation period had expired, and whether it was in any event plain and obvious that the claims pled dis- closed a cause of action. It was necessary for the Defendants to bring a motion in this fashion as it was critical for them to be able to lead evidence of Bangladeshi law. e content of foreign law is a question of fact that must be proved on admissible evidence, so the Defendants could not have advanced their position simply based on the pleadings and legal argument. e motion judge raised no con- cerns about the Defendants using this pro- cedure, and the Court of Appeal similarly endorsed it. While this approach will not be appropriate in every case, it does high- light that there are some circumstances where such a procedural approach will be appropriate to resolve a matter on the mer- its at an early stage. Choice of Law in Class Proceedings e Plaintiffs argued that Ontario law applied in respect of the claim. Both the motion judge and the Court of Appeal rejected this argument, concluding that Bangladeshi law applied, including both substantive tort law as well as the applica- ble limitation period (which the Supreme Court of Canada has held to be a matter of substantive law). e choice of law question was resolved in the typical matter for such cases. Ap- plying settled law of the Supreme Court of Canada in Tolofson v Jensen, the Court of Appeal held that the applicable choice of law was the lex loci delicti, that is, the law of the place where the tort occurred. e Supreme Court of Canada had le open the possibility in Tolofson that there might be exceptional circumstances where a law other than the lex loci delicti might apply, and the Plaintiffs argued that this was an appropriate case where lex loci delicti did not apply. ey argued that because: 1) punitive damages were unavailable under Bangladeshi law and 2) Sharia law could mandate differences in damages between men and women in certain circumstances and would there- fore discriminate against female claim- ants, Ontario law should therefore apply. Both the motion judge and the Court of

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