Resources

Competition Law

Canadian Competition Class Actions Developments

Published: 06/29/2010

By Yana Ermak, Chris Hersh, Nicole Washington

Recent Decisions Relax Certification Test

Two recent cases appear to signal a significant change in the way that Canadian courts approach certification in class actions brought in respect of claims of price fixing.

These cases involved allegations of price fixing against manufactures of “DRAM” semiconductor chips and hydrogen peroxide.  In both cases, the lower courts (in British Columbia and Ontario, respectively) certified consolidated classes that included both direct and indirect purchasers.  In both cases, the defendants appealed.  Earlier this month, the Supreme Court of Canada and the Ontario Superior Court delivered their decisions denying leave to appeal in both cases.

 These decisions appear to signal a more permissive approach to certification that includes the following elements:

• The proposed class may include both direct and indirect purchasers, where the claim seeks to have damages assessed on an aggregated, class-wide basis 
• At the certification stage, it is not necessary to demonstrate that class member actually suffered a loss
• Plaintiffs need only demonstrate a “credible or plausible methodology" for proving loss on a class-wide basis
• Courts are not to weigh competing expert evidence about the workability of the proposed methodology at the certification stage

It is too early to say whether these decisions will result in a proliferation of cases (in particular cases where there have been no Canadian convictions or guilty pleas).  However, it is clear that more competition law class actions will be certified on a contested basis and it is likely that, for the first time, a competition law class action will proceed to trial in Canada. 

For a more in-depth discussion about these cases and their possible ramifications, please click here. For more information regarding the potential implications of this decision or Canadian competition and foreign investment review matters generally, please contact Mark Nicholson, Chris Hersh, Yana Ermak or Nicole Washington in the Competition, Antitrust & Foreign Investment Law group.