J. Kenneth McEwan

The applicant sought a declaration for payment of over $4 million in "Take-or-Pay Fees" and unpaid invoices from a contract manufacturing agreement, alleging the respondent failed to meet minimum order volumes.

The respondent argued the matter was unsuitable for an application under Rule 14.05(3)(d) due to material facts in dispute, the enforceability of a potential penalty clause, and the impact of the COVID-19 pandemic.

The court agreed with the respondent, converting the application into an action for trial, finding that the dispute involved complex factual issues, including potential contract modification, estoppel, and frustration, which required discoveries and a fulsome record.

The representative plaintiff, Fanshawe College, sought to amend the class definition in a certified class proceeding alleging price-fixing of LCD panels.

Two amendments were proposed: a broad "all purchasers' amendment" to include all direct and indirect purchasers, and an "alternative amendment" to expand the list of named OEMs and distributors.

The court denied the "all purchasers' amendment," finding it an abuse of process as it attempted to re-litigate an issue previously abandoned and decided by the certification judge.

However, the court granted the "alternative amendment," as it was specifically contemplated by the certification judge and the claims were not found to be time-barred.

Direct and indirect purchasers sought certification of a class action alleging unlawful price-fixing of high-fructose corn syrup and pass-through overcharges.

The majority held indirect purchasers may in principle sue, but certification failed for that group because there was no evidentiary basis that at least two members could self-identify as having purchased affected products during the class period.

It also held the direct purchasers’ constructive trust claim was plain and obvious to fail for lack of proprietary nexus and inadequacy of monetary remedy.

The appeal by the proposed indirect purchaser class was dismissed and the respondents’ cross-appeal was allowed.

Dissenting reasons would have found an identifiable class and certified the indirect purchaser claims.