Recent class-action decisions in two closely watched Canadian cases suggest that Canadian courts may be more receptive to the class mechanism than in the past. Previously, only a handful of Canadian antitrust class actions had progressed to a contested motion for class certification. And, in those that had, courts denied the motion, often citing the need for more rigorous expert analysis of loss and liability on a class-wide basis. But in September 2009, in Irving Paper Ltd. v. Atofina Chemicals, the Ontario Superior Court of Justice certified a class amid allegations of price-fixing by hydrogen peroxide producers. Two weeks later, in Pro-Sys Consultants Ltd. v. Infineon Technologies AG, the British Columbia Court of Appeal reversed a lower court decision and certified a class in a case involving allegations of price-fixing among DRAM memory-chip makers. Justice Smith observed that the lower court had erred in subjecting the plaintiff’s expert evidence to “rigorous scrutiny” at the certification stage. “[T]his approach was fundamentally unfair at this stage of the proceeding,” Justice Smith wrote, “when the appellant has not had discoveries and an adequate opportunity to marshal the evidence required by [the expert] for his analysis.” All that is required, according to the opinion, is “a credible or plausible methodology” for determining damages on a class-wide basis.
Both decisions are significant because they are the first instances of Canadian courts—both trial and appellate—certifying classes in multilateral price-fixing cases over opposition from defendants. Pro-Sys, moreover, is noteworthy for its treatment of direct and indirect purchasers and its decision to certify a consolidated direct and indirect purchaser class. Although it is too early to predict with much accuracy, many in the Canadian legal community expect that these decisions will lead to increased class-action antitrust litigation in Canada, particularly where there are complementary cases proceeding in the United States.
Read the court’s decision in Pro-Sys Consultants Ltd. v. Infineon Technologies AG here.
Read more coverage here.
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