Does the doctrine of forum non conveniens apply against defendants who were not in Canada during the Class Period?

Consequently, the 2016 decision in Kaynes demonstrates that the court should not narrow the class at an early juncture when the defendants are opposing certification. The doctrine of forum non conveniens is only available if the defendant can meet the high threshold required to displace the forum chosen by the plaintiff: Paniccia v. MDC Partners Inc., 2017 ONSC 7298, at para. 40. However, in the present case, the evidence is that Ontario law applies against defendants who were residents, domiciled, and/or carried on business in Canada during the Class Period. The evidence before the court on the present motion does not establish the factors relied upon in the initial Kaynes decision.

I adopt the approach of van Rensburg J. (as she then was) in Silver. The court in the 2009 decision certified a global class action because there was a real and substantial connection to Ontario. The scope of the class was later narrowed in a 2013 decision, but only after a settlement of the U.S. action where class members were provided with the opportunity to opt out: Silver v. IMAX Corp., 2013 ONSC 1667, at para. 18.