Dr. Keith Reutter

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 to approve settlements with National Bank, Visa, and MasterCard in a class action alleging a conspiracy to fix merchant discount fees.

The settlements provided for a total payment of $45 million, modifications to the 'No Surcharge Rule', and cooperation in the ongoing action against the remaining non-settling defendants.

Despite objections from Wal-Mart and Home Depot regarding the breadth of the releases, the court found the settlements to be fair, reasonable, and in the best interests of the class, particularly given the weaknesses in the plaintiffs' case against Visa and MasterCard under the Competition Act.

The court also approved Class Counsel's fee request.

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 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.

In a proposed price-fixing class action involving lithium ion batteries, both sides brought refusals motions arising from cross-examinations conducted in advance of certification.

The court held that questions probing how class counsel came to act for the proposed representative plaintiffs, and requests for a retailer plaintiff’s business documents, were not relevant to the certification criteria.

However, questions to the plaintiffs’ expert about whether inclusion of contract phone purchasers complicated pass-through analysis were relevant to testing the expert’s methodology and had to be answered.

Questions to defence witnesses about alleged meetings and documents referenced in a related U.S. proceeding were refused as going to the merits rather than certification.