Emrys Charles Davis

Two sets of appellants (manufacturers of optical disc drives) appealed the certification of a price-fixing class proceeding in British Columbia.

The majority held that the discoverability rule applies to extend the two-year limitation period in s. 36(4)(a)(i) of the Competition Act, that fraudulent concealment can toll a limitation period without requiring a special relationship between the parties, that umbrella purchasers (persons who bought from non-defendant manufacturers) have a cause of action under s. 36(1)(a), that s. 36(1) does not bar concurrent common law and equitable claims, and that a plaintiff's expert methodology need only establish that overcharges reached the indirect-purchaser level to certify loss as a common issue.

Côté J. dissented in part, finding that the discoverability rule does not apply to s. 36(4)(a)(i) and that umbrella purchasers have no cause of action under s. 36(1).

Both appeals were dismissed.

The plaintiffs brought a motion for judicial approval of 13 discrete auto part class action settlements with the HIAMS, Mitsuba, NGK, and Sumitomo Riko defendants, totaling approximately $14.8 million.

The court found that each of the proposed settlements fell within a zone of reasonableness, noting that the Canadian settlement amounts were proportionate to related American settlements.

The court also approved class counsel's request for a 25 percent contingency fee, plus disbursements and taxes, finding it presumptively valid.

The appellants brought a class action against defendant manufacturers and suppliers alleging they conspired to fix the price of lithium-ion batteries sold in Canada between January 2000 and December 2011.

The conspiracy allegedly impacted all purchasers, including "umbrella purchasers" whose batteries originated from non-defendants, as the cartel's price increases caused non-conspirators to also raise prices.

The certification judge certified only a statutory claim under the Competition Act for non-umbrella purchasers.

The Divisional Court certified an unlawful means conspiracy claim but excluded umbrella purchasers, citing indeterminate liability concerns.

The Court of Appeal allowed the appeal, holding that the principle of indeterminate liability does not apply to either the statutory claim or the unlawful means conspiracy claim, and that umbrella purchasers should be included in the class with a subclass created for non-umbrella purchasers regarding aggregate damages quantification.

The plaintiffs in a competition law class action regarding price-fixing of lithium-ion batteries brought a motion for consent certification for settlement purposes against two groups of defendants, NEC and Samsung.

The plaintiffs and the settling defendants reached settlement agreements and agreed on a plan for disseminating the notice of hearing for settlement approval.

The court found that the criteria for certification under section 5 of the Class Proceedings Act, 1992 were met in the settlement context and granted the motion to certify the action for settlement purposes.

This appeal concerns whether a proposed securities class action asserting a statutory cause of action for misrepresentation under Part XXIII.1 of the Ontario Securities Act was time-barred by the three-year limitation period in section 138.14.

The appellant commenced a class action in May 2009 but did not bring a motion for leave to proceed with the statutory claim within the limitation period.

The motion judge refused to grant leave nunc pro tunc (retroactively), finding that the appellant failed to meet the test established by the Supreme Court of Canada in Canadian Imperial Bank of Commerce v. Green.

The Court of Appeal upheld the motion judge's decision, finding no error in principle in the exercise of discretion to deny nunc pro tunc relief.

The plaintiffs appealed a certification order that denied certification of claims for unlawful means conspiracy and claims on behalf of 'Umbrella Purchasers' in a class action alleging a global price-fixing conspiracy for lithium-ion batteries.

The Divisional Court allowed the appeal regarding the unlawful means conspiracy claim, finding it was bound by a recent Court of Appeal decision.

However, the court dismissed the appeal regarding the Umbrella Purchasers, concluding that allowing claims by purchasers who bought from non-defendant manufacturers would expose the defendants to indeterminate liability for economic loss.

The plaintiffs and defendants both sought leave to appeal an order certifying a class action regarding an alleged global price-fixing conspiracy in the lithium-ion battery industry.

The plaintiffs sought leave to appeal the denial of certification for claims relating to unlawful means conspiracy and umbrella purchasers.

The defendants sought leave to appeal the certification of the civil remedy claim under s. 36 of the Competition Act.

The Divisional Court granted the plaintiffs' motion for leave to appeal, finding conflicting decisions and that the issues merited appellate attention.

The defendants' motion for leave to appeal was denied, as they failed to establish conflicting decisions or reason to doubt the correctness of the certification order.

The plaintiff brought a motion to certify a proposed class proceeding for settlement purposes and to approve a settlement agreement with certain defendants alleged to have participated in a conspiracy to fix prices in the cathode ray tube (CRT) industry.

The settlement provided for a payment of $4.15 million and additional non‑monetary cooperation.

The court held that the action met the certification requirements under s. 5(1) of the Class Proceedings Act, 1992 for settlement purposes and that the settlement was fair, reasonable, and in the best interests of the class.

The plaintiff also sought approval of contingency fees, disbursements, and taxes pursuant to the retainer agreement.

The court found the requested fees and disbursements reasonable given the complexity and risks of the litigation.

The plaintiffs brought a motion to certify a class action against several manufacturers of lithium-ion batteries, alleging a price-fixing conspiracy that artificially inflated prices for direct and indirect purchasers in Canada.

The court certified the action solely for the statutory cause of action under section 36 of the Competition Act.

The court excluded 'umbrella purchasers' (those who bought from non-defendants) from the class, finding it plain and obvious they lacked a cause of action due to indeterminate liability and lack of restitutionary basis.

The court also declined to certify the common law claims for unlawful means conspiracy and unjust enrichment, holding that they were precluded by the comprehensive statutory scheme of the Competition Act.

The remaining certification criteria were met for the statutory claim.

The applicants sought leave to appeal an order that continued existing banking and management arrangements for joint venture properties, rather than ordering a court-appointed sales officer to distribute sales proceeds directly to the ultimate owners.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's highly discretionary decision and concluding the proposed appeal did not involve a matter of general importance.

The court addressed three motions in a proceeding involving the sale of multi-unit residential buildings by a court-appointed Sales Officer.

The court approved the Sales Officer's activities, receipts, and post-appointment fees, but directed that pre-appointment fees be allocated between the Sales Officer mandate and the applicants who initially sought a broader receivership.

The applicants' motions for production of accounting records and for independent oversight of the interim distribution were largely deferred to a case conference, though the court ordered a $7,500,000 holdback from the distribution to ensure liquidity for future adjustments.

The applicants moved for an order regarding post-closing issues following a court-approved sale of properties.

The respondents sought payout on two mortgages, including compensation for future interest loss, as the mortgages were vested off title prior to maturity.

The applicants objected, arguing the mortgages were self-dealing and should not include an unbargained pre-payment penalty.

The court found that the mortgages did not contain a pre-payment privilege and that the respondents did not breach any fiduciary duty in the refinancing.

The court ruled in favour of the respondents, ordering that they be compensated for future interest loss.

The applicants moved for an order regarding post-closing issues following a court-approved sale of properties.

The respondents sought a payout on two mortgages that included a prepayment penalty for future interest loss.

The applicants argued the mortgages were self-dealing and should not include a prepayment penalty, as the original CMHC mortgages did not.

The court found that the mortgages did not contain a prepayment privilege and that the respondents were entitled to compensation for the loss resulting from the early vesting off title of the mortgages.

The court ruled in favour of the respondents.

In a costs endorsement following an appeal and cross-appeal regarding an estate dispute, the respondents sought substantial indemnity costs of $85,000 for the main appeal.

The Court of Appeal declined to award substantial indemnity costs, finding the appellant's conduct was not reprehensible and her appeal raised reasonable questions of law.

The respondents were awarded partial indemnity costs of $30,000 for the main appeal.

The appellant, having been successful on the cross-appeal, was awarded $5,000 in costs.

The appellant challenged the validity of her mother's two wills and a codicil, alleging lack of testamentary capacity, lack of knowledge and approval, and undue influence.

The motion judge granted summary judgment dismissing the challenge and upholding the testamentary documents.

On appeal, the appellant argued that the motion judge erred by granting summary judgment instead of ordering a trial, and by excluding certain expert and lay evidence.

The Court of Appeal dismissed the appeal, finding that the motion judge had a full appreciation of the evidence and issues, properly excluded unreliable expert voicemail messages and uncorroborated evidence under the Evidence Act, and correctly found that the propounders met their burden of proving knowledge and approval despite suspicious circumstances.

The respondents' cross-appeal on costs was also dismissed.

The applicant, a unitholder in an income fund, sought an order requiring the fund's trustees to call a special meeting of unitholders to vote on a proposed transaction involving the restructuring of preference shares and secured notes.

The court found that the proposed transaction was objectively 'materially adverse' to the unitholders because it postponed payments on the secured notes.

Consequently, under the Declaration of Trust, the trustees lacked the authority to vote the fund's common shares in favour of the transaction without unitholder approval.

The court ordered the special meeting of the company to be adjourned pending a unitholder vote.

In a proposed class action alleging a price‑fixing conspiracy in the optical disc drive (ODD) market contrary to common law and s. 45 of the Competition Act, the plaintiff sought leave to amend the claim to add eighteen additional corporate defendants.

The defendants opposed the amendment on the basis that limitation periods under the Limitations Act and s. 36(4) of the Competition Act had expired.

The court held that at the pleadings amendment stage it was inappropriate to make definitive findings on discoverability or the expiry of limitation periods where the evidentiary record was incomplete.

Although the plaintiff’s evidence regarding due diligence was thin, the court concluded it would be unfair to refuse the amendment solely on the deficient record.

The motion was adjourned to permit the plaintiff to file additional evidence addressing discoverability and diligence.

In a proposed national class proceeding alleging a price‑fixing conspiracy in the market for DRAM semiconductor devices, the representative plaintiffs sought approval of four additional settlement agreements with certain defendants and approval of class counsel fees.

The court assessed whether the negotiated settlements were fair, reasonable, and in the best interests of the class under the Class Proceedings Act, 1992.

Although no finalized distribution protocol for settlement funds had yet been developed, the court concluded the settlements—totaling $23.325 million and including cooperation provisions—were reasonable given litigation risk and the benefit of cooperation against non‑settling defendants.

The court also scrutinized class counsel’s request for a 30% contingency fee of approximately $7.13 million.

Finding that percentage excessive at this stage of the proceedings, the court reduced the fee award to 20% of total settlements achieved to date and approved an interim fee of $4,180,345.59.

The plaintiffs brought a motion to certify two actions as class proceedings for settlement purposes under the Class Proceedings Act, 1992 in relation to alleged price-fixing of DRAM (dynamic random access memory) devices.

The actions alleged breach of Part IV of the Competition Act, civil conspiracy, and tortious interference with economic interests against numerous international semiconductor manufacturers.

Following earlier settlement with one defendant, additional settlements were reached with several defendants totaling substantial monetary payments and cooperation commitments.

The court held that the criteria for certification under s. 5(1) of the Class Proceedings Act, 1992 were satisfied and approved certification for settlement purposes.

The court further determined that no additional opt‑out period was required because class members had already been provided a valid opportunity to opt out during the earlier settlement process.

The Court of Appeal issued a costs endorsement following an appeal in CCAA proceedings.

The appellant, Computershare Trust Company of Canada, was ordered to pay costs of the appeal to the respondent Crystallex International Corporation in the amount of $110,688.00, and to the respondent Tenor Capital Management Company, L.P. and Affiliates in the amount of $80,000.

Both amounts are inclusive of disbursements and HST.