Sandra A. Forbes

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 plaintiffs brought motions for settlement approval and fee approval in several class actions alleging price-fixing in the automotive parts industry.

The court certified the actions against Yazaki and Chiyoda for settlement purposes.

The court approved settlements with Yazaki and Chiyoda totaling over $11 million, noting that class counsel provided supplementary evidence demonstrating that the settlement amounts fell within the zone of reasonableness.

The court also approved class counsel's 25 percent contingency fee request.

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.

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.

The representative plaintiff in a proposed class action alleging a price-fixing conspiracy in the Canadian aftermarket oil and air filter market sought court approval of a settlement resolving the litigation.

The settlement provided for payment of $350,000, subject to an opt-out threshold, with a distribution protocol requiring significant purchase thresholds for direct recovery and a cy-près allocation to a consumer organization for remaining funds.

The court considered the risks of continuing litigation, including evidentiary issues, uncertainty regarding proof of conspiracy and price impact, and the pending Supreme Court of Canada decision concerning indirect purchaser rights.

Concluding that the settlement represented a fair, reasonable, and pragmatic resolution given the litigation risks, the court approved both the settlement and the reduced contingency fee arrangement.

The plaintiff brought a motion seeking certification of a proposed class proceeding against one defendant for settlement purposes.

The claim alleged a conspiracy to raise, maintain, fix, or stabilize gasoline prices in Eastern Ontario contrary to the Competition Act and the common law.

The court held that the pleadings disclosed viable causes of action, the proposed class definition was objectively ascertainable, and the existence of the alleged conspiracy constituted a common issue suitable for class determination.

The court further found that the representative plaintiff adequately represented the class and that the proposed settlement agreement contained a workable litigation plan including opt‑out procedures and notice provisions.

Certification for settlement purposes was granted as against the settling defendant.

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 CCAA proceeding, the Applicants (Hollinger Inc. et al.) sought approval of settlement agreements with their former auditors (KPMG) and lawyers (Torys).

The Non-Settling Defendants, including Conrad Black and David Radler, opposed the settlements, arguing the court lacked jurisdiction and that the included third-party releases and bar orders would deprive them of procedural rights to discovery.

The court held it had jurisdiction under the CCAA to manage litigation as a corporate asset.

The court approved the Pierringer-style settlements, finding that the procedural rights of the Non-Settling Defendants could be adequately protected through active case management and the application of the principle of proportionality in discovery.

The third parties, who were directors and officers of the plaintiff company, sought leave to appeal an interlocutory order refusing to strike out third party claims brought against them personally by the defendant auditors.

The defendants had been sued for negligence in performing audits and sought contribution and indemnity from the third parties for their alleged tortious personal conduct.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions and no good reason to doubt the correctness of the motions judge's decision, as the pleadings properly founded a reasonable cause of action against the third parties.

In a winding-up of a charitable corporation facing extensive institutional abuse claims, the liquidator sought appellate clarification on whether assets allegedly held on special purpose charitable trusts were shielded from tort creditors whose claims arose elsewhere within the charity’s operations.

The court held that Canadian law recognizes no charitable immunity from tort liability and rejects any trust-fund theory that would immunize charitable assets from execution.

In the winding-up context, all assets of the charitable corporation, whether beneficially owned or held on trust for charitable purposes, were available to satisfy legitimate tort claims.

The court also struck out a paragraph of the order suggesting it was not intended to affect related British Columbia proceedings, while confirming that the British Columbia court remained free to make its own factual findings on ownership issues.