In Part 2, I submit that a forum court presented with the issue of certification of a national class is bound by constitutional limits that make it inappropriate to exercise adjudicative jurisdiction over unnamed extraprovincial plaintiffs.
PROVINCIAL STATUTES CANNOT GIVE RISE TO A NATIONAL CLASS Restrictions on the Extraterritorial Effect of Provincial Law The Substantive Effects of Opt-Out Class Actions Bar Provincial Statutes From Providing for Their Extraprovincial Operation II.
The first requirement has been called the "provincial inability test"; briefly, it posits that to qualify a matter as being of national concern, a matter should have inherently extraprovincial
qualities such that, practically speaking, no one province can manage the matter entirely successfully.
Further, where the province enacts legislation within its jurisdiction and only incidentally affects extraprovincial rights, that legislation may not necessarily be sacrosanct by virtue of the general trade and commerce power.
Assuming that standards of treatment for foreign investors fall legitimately into the federal trade and commerce power because of their general nature (175) and that the federal government may stipulate standards of treatment for foreign investors as ancillary to its ability to regulate the entry of foreign investment, (176) the breadth of economic activity that the NAFTA's concept of investment covers (177) will certainly capture decisions that are absolutely within exclusive provincial jurisdiction and that otherwise have no extraprovincial effect.
perfectly legitimate, otherwise it would mean that our Constitution makes it impossible by federal-provincial cooperative action to arrive at any practical scheme for the orderly and efficient production and marketing of a commodity which all governments concerned agree requires regulation in both intraprovincial and extraprovincial
For example, Justice La Forest, in Crown Zellerbach, indicated that extraprovincial water pollution would qualify as a matter of national concern.
The more interesting question--and in the author's view more apposite--is whether the existing precedent, with its judge-made distinction between extraprovincial and intraprovincial trade, should even be applied to a statute like the KPIA.
The sixth factor from Muscutt, the court's willingness to recognise and enforce an extraprovincial
judgment rendered on the same basis, is also no longer an independent consideration.
Selon lui, l'intention legislative derriere les mots employes dans la loi demontre que le gouvernement federal tente de faire indirectement ce qu'il ne peut faire directement, soit de permettre aux provinces d'imposer le commerce extraprovincial
tout en leur dictant comment utiliser les montants ainsi preleves (50).
23) Joost Blom, "Conflict of Laws - Enforcement of Extraprovincial
Default Judgment--Real and Substantial Connection: Morguard Investments Ltd.
So, for example, while no significant statutes detail appropriate charities' administration costs, spending requirements, political activities, or extraprovincial
operations, the provinces generally provide limited direction on issues such as fundraising, telemarketing, and property taxes.