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CIVIL PROCEDURE - Class or representative actions - Certification

Wednesday, June 26, 2019 @ 6:27 AM  


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Appeal by the plaintiff from a decision refusing to certify his action as a class proceeding. The appellant sued the respondents claiming compensation for an alleged price-fixing conspiracy of marine shippers who transported automobiles and other vehicles across oceans to Canada. The appellant alleged that the conspiracy resulted in higher costs to him and others who purchased vehicles in BC. The appellant proposed to include certain umbrella purchasers on the theory that the respondents’ conspiracy increased the price of all vehicles purchased in BC that were transported in a particular manner. The certification judge held that in presenting a methodology for assessing whether any overcharge was passed through to indirect purchasers, the appellant’s expert failed to determine whether the data needed for such methodology was in fact available. The certification judge held that the proposed methodology for proving loss on a class-wide basis was restricted to direct and indirect purchasers. The judge concluded, independent of the question of available data, that the appellant did not propose a methodology capable of establishing loss to umbrella purchasers on a class-wide basis.

HELD: Appeal allowed. The action was classified as a class proceeding. The certification judge erred in imposing a standard of identification of data that exceeded the statutory requirements for the determination of a common issue. At the certification stage, the appellant must provide some evidence that the loss component of liability could be proven on a class-wide basis, but it was not necessary to identify the specific data that would be required for the proposed methodology to do so. The methodology must be realistic but not compelling. The appellant showed some basis in fact that there was a credible or plausible methodology capable of establishing loss on a class-wide basis. Loss on a class-wide basis was a common issue for the claims of the indirect purchasers. These common issues would predominate over the remaining individual issues. The judge erred by dismissing the certification application without conducting a preferability analysis when the claims raised common issues as to the alleged wrongful acts of the respondents. Given the determination that loss on a class-wide basis was a common issue and the lack of any practical alternative to a class action in this case, a class proceeding was the preferable procedure for resolving the claims of the direct and indirect purchasers, and those were certified as a class proceeding. It was for the judge in the common issues trial to decide on the merits whether the appellant’s methodology did in fact establish pass-through loss for the various types of indirect purchasers who were part of the claim. The certification judge did not err in declining to certify the claims of the umbrella purchasers. It was open to the judge to conclude that the methodology proposed by the appellant to establish loss on a class-wide basis was not plausible in respect of the umbrella purchasers. In the absence of a common issue as to loss for the umbrella purchasers, individual interests would overwhelm the common issue, and a class proceeding was not the preferable procedure for resolving these claims. The single common issue raised by the umbrella purchasers’ claims resulted in a different preferability analysis than was appropriate for the indirect purchasers, where liability for loss was a common issue. On the record before the certification judge, individual issues would overwhelm the single common issue whether the umbrella purchasers could claim against the respondents.

Ewert v. Nippon Yusen Kabushiki Kaisha, [2019] B.C.J. No. 945, British Columbia Court of Appeal, M.E. Saunders, H. Groberman and J.J.L. Hunter JJ.A., May 29, 2019. Digest No. TLD-June242019007