Linda J. Visser

The defendants brought motions for summary judgment to dismiss a proposed class action alleging a price-fixing conspiracy regarding liquid crystal display (LCD) panels.

The defendants argued the claims were statute-barred under the Limitations Act, 2002 and the Competition Act, and constituted an abuse of process.

The court dismissed the motions, finding that there were genuine issues requiring a trial regarding when the plaintiff knew or ought to have known of the claims (discoverability).

The court also held that the discoverability principle applies to the limitation period in s. 36(4) of the Competition Act.

In a proposed class proceeding alleging a worldwide conspiracy to fix lithium ion battery prices, the plaintiffs sought leave to file a supplemental law clerk affidavit after cross-examining the affiant on the foreign defendants' jurisdiction motion.

The court held that leave under rule 39.02(2) should be granted sparingly and only where the moving party meets a very high threshold.

The proposed affidavit was relevant but not important to the plaintiffs' jurisdiction theory, which did not depend on disproving the affiant's evidence about direct or indirect Canadian sales.

The plaintiffs also failed to provide an adequate explanation for why the material could not have been included before cross-examination.

Leave was denied and there was no order as to costs.

The plaintiff sought to certify a class action against the Dow defendants for an alleged price-fixing conspiracy in the market for polyether polyol products.

The court reviewed the requirements for certification under the Class Proceedings Act, 1992, in light of recent Supreme Court of Canada jurisprudence on indirect purchaser claims.

The court found that the pleadings disclosed a cause of action, there was an identifiable class, common issues existed with a plausible methodology for proving class-wide loss, a class action was the preferable procedure, and the plaintiff was a suitable representative.

The motion for certification was granted.

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.

The moving party sought certification of a national class proceeding alleging that organic asphalt roofing shingles manufactured by the defendants were defective and prone to premature failure.

Claims were advanced in negligence and under various provincial consumer protection statutes, asserting that the shingles failed prematurely and exposed homeowners to risks such as water penetration, mould, and structural damage.

The defendants opposed certification on the grounds that the claim disclosed only pure economic loss, that no common defect existed across the products, and that individual remedies were preferable.

The court held that the pleadings disclosed viable causes of action, that expert evidence provided some basis in fact for a common defect, and that the proposed class and common issues met the statutory requirements under s. 5 of the Class Proceedings Act, 1992.

A class proceeding was found to be the preferable procedure given the small individual claims and the efficiency of resolving common issues collectively.