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PARTIES - Class or representative actions - Certification

Friday, September 20, 2019 @ 1:30 PM  


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Appeals from a judgment of the British Columbia Court of Appeal affirming a decision certifying a class proceeding under the British Columbia Class Proceedings Act. The defendants manufactured Optical Disc Drives (ODDs), and ODD products (products that contained ODDs). Godfrey alleged that the defendants conspired to fix prices of ODDs and ODD products. The certification judge granted Godfrey’s application. Two sets of defendants each appealed from that decision, unsuccessfully, to the British Columbia Court of Appeal. At stake in these appeals was whether it was plain and obvious that the claim under s. 36(1)(a) of the Competition Act by so-called “umbrella purchasers” who bought ODDs or ODD products manufactured and supplied by someone other than the defendants, but who alleged that the defendants’ price-fixing conduct raised the market price of the product, could not succeed. The outcome depended on whether the umbrella purchasers had a cause of action under s. 36(1)(a). The Court was also called upon to clarify the operation of the statutory limitation period for claims under s. 36(1)(a) of the Competition Act, to affirm the availability of common law and equitable actions in respect of claims also brought under s. 36(1)(a) of the Competition Act, and to reiterate the standard required to certify loss-related questions as common issues in class proceedings.

HELD: Appeals dismissed. Discoverability applied where the legislature stipulated that a limitation period should run from the moment when the cause of action arose, or where the triggering event was the plaintiff’s knowledge of his or her injury. The concern underlying the doctrine of equitable fraud was not limited to the unconscionability of taking advantage of a special relationship with the plaintiff. The text of s. 36(1)(a) provided a cause of action to any person who had suffered loss or damage as a result of conduct contrary to s. 45, and supported the view that umbrella purchasers had a cause of action thereunder. Recognizing the umbrella purchasers’ cause of action under s. 36(1)(a) did not risk exposing the defendants to indeterminate liability. The courts below correctly decided that it was not plain and obvious that Godfrey was precluded from bringing common law and equitable causes of action alongside his s. 36(1)(a) claim. Additionally, a breach of s. 45(1) of the Competition Act could supply the “unlawful” element of the tort of civil conspiracy. The certification judge identified the correct standard to certify commonality of loss as a common issue. The reasoning of the certification judge revealed no basis for interfering with his common issues determination. Irrespective of whether aggregate damages were certified as a common issue, it was for the trial judge to determine, following the common issues trial, whether the statutory criteria were met such that the aggregate damages provisions could be applied to award damages.

Pioneer Corp. v. Godfrey, [2019] S.C.J. No. 42, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., September 20, 2019. Digest No. TLD-September162019016-SCC