Supreme Court of Canada

Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295

Appeals Heard: December 11, 2018 Judgment Rendered: September 20, 2019 Dockets: 37809, 37810

Parties

Between:

Pioneer Corporation, Pioneer North America, Inc., Pioneer Electronics (USA) Inc., Pioneer High Fidelity Taiwan Co., Ltd. and Pioneer Electronics of Canada Inc. Appellants

v.

Neil Godfrey Respondent

‑ and ‑

Between:

Toshiba Corporation, Toshiba Samsung Storage Technology Corp., Toshiba Samsung Storage Technology Corp. Korea, Toshiba of Canada Ltd., Toshiba America Information Systems, Inc., Samsung Electronics Co., Ltd., Samsung Electronics Canada Inc., Samsung Electronics America, Inc., Koninklijke Philips Electronics N.V., Lite‑On IT Corporation of Taiwan, Philips & Lite‑On Digital Solutions Corporation, Philips & Lite‑On Digital Solutions USA, Inc., Philips Electronics Ltd., Panasonic Corporation, Panasonic Corporation of North America, Panasonic Canada Inc., BENQ Corporation, BENQ America Corporation and BENQ Canada Corp. Appellants

v.

Neil Godfrey Respondent

‑ and ‑

Option consommateurs, Consumers Council of Canada, Canadian Chamber of Commerce and Consumers' Association of Canada Interveners

Indexed as: Pioneer Corp. v. Godfrey

2019 SCC 42

File Nos.: 37809, 37810.

2018: December 11; 2019: September 20.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

on appeal from the court of appeal for british columbia

Headnotes

Civil procedure — Class actions — Certification — Plaintiff alleging that defendants conspired to fix prices of optical disc drives and related products — Plaintiff's action certified as class proceeding — Whether umbrella purchasers have cause of action under Competition Act — Whether expert's methodology sufficient to certify loss as common issue — Whether aggregate damages may be awarded to class members who suffered no loss — Competition Act, R.S.C. 1985, c. C‑34, ss. 36(1)(a), 36(4)(a)(i) — Class Proceedings Act, R.S.B.C. 1996, c. 50, ss. 4(1), 29(1)(b).

Limitation of actions — Competition Act setting out limitation period of two years from day on which conduct was engaged in — Action brought against some defendants more than two years after alleged conduct occurred — Whether discoverability rule applies to extend limitation period — Whether fraudulent concealment can toll limitation period absent special relationship between parties — Competition Act, R.S.C. 1985, c. C‑34, s. 36(4)(a)(i).

The proposed representative plaintiff applied for certification of a class proceeding under the British Columbia Class Proceedings Act. The plaintiff alleges that the defendants, who manufacture Optical Disc Drives ("ODDs") and ODD products, conspired to fix the prices of these products. The proposed class consisted of: (a) direct purchasers, whose ODD or ODD product was manufactured or supplied by a defendant and purchased from that defendant; (b) indirect purchasers, whose ODD or ODD product was manufactured or supplied by a defendant and purchased from a non-defendant; and (c) umbrella purchasers, whose ODD or ODD product was manufactured and supplied by a non-defendant.

The certification judge certified the action as a class proceeding, subject to certain exceptions and conditions. He was not satisfied that it was plain and obvious that the action against the Pioneer defendants was statute-barred. He also found that umbrella purchasers had a cause of action under s. 36(1)(a) of the Competition Act and that common law and equitable claims could be advanced alongside the statutory claim. The British Columbia Court of Appeal dismissed both sets of appeals by the Pioneer and Toshiba defendants.

Held (Côté J. dissenting in part): The appeals should be dismissed.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ.: It is not plain and obvious that the plaintiff's claim against the Pioneer defendants will fail on the basis that it is statute-barred. The discoverability rule applies to extend the two-year limitation period in s. 36(4)(a)(i) of the Competition Act, such that it begins to run only when the material facts on which the cause of action is based were discovered or ought to have been discovered.

Where a limitation period is subject to the rule of discoverability, a cause of action will not accrue for the purposes of the running of the limitation period until the material facts on which the cause of action is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence. The discoverability rule is a rule of construction, and its application depends on an examination of the pertinent statutory text to assess what triggers the running of the limitation period. Where the event triggering the limitation period is an element of the cause of action, the legislature has shown its intention that the limitation period be linked to the cause of action's accrual, such that discoverability will apply.

The discoverability rule applies to extend the two‑year limitation period in s. 36(4)(a)(i) of the Competition Act, such that it begins to run only when the material facts on which the cause of action is based were discovered by the plaintiff or ought to have been discovered by the plaintiff by the exercise of reasonable diligence. The event that triggers this limitation period — a day on which conduct contrary to Part VI occurred — is an element of the underlying cause of action in s. 36(1)(a). Parliament has therefore shown its intention that the limitation period be linked to the cause of action's accrual.

Furthermore, it is not plain and obvious that the doctrine of fraudulent concealment could not delay the running of the limitation period. Fraudulent concealment is a form of equitable fraud that arises when it would be unconscionable for the defendant to rely on the advantage gained by having concealed the existence of a cause of action. A special relationship between the parties is not always a necessary precondition to the application of the doctrine of fraudulent concealment.

Umbrella purchasers have a cause of action under s. 36(1)(a) of the Competition Act. Under the theory of umbrella pricing, the entire market for the subject product is affected because anti-competitive cartel activity creates an "umbrella" of supra-competitive prices. The text of s. 36(1)(a) supports the view that umbrella purchasers have a cause of action thereunder for conduct contrary to s. 45(1), since Parliament's use of "any person" does not narrow the realm of possible claimants. Recognizing that umbrella purchasers have a cause of action under s. 36(1)(a) does not risk exposing defendants to indeterminate liability; liability is limited by the class period, specific products whose prices are alleged to have been fixed, and the requirement that umbrella purchasers show a causal link between loss suffered and conspiratorial conduct.

Section 36(1) of the Competition Act does not bar common law or equitable claims, such as claims in civil conspiracy. A breach of s. 45(1) of the Competition Act can supply the "unlawful" element of the tort of civil conspiracy. The cause of action in s. 36(1) neither duplicates the tort of civil conspiracy nor provides a new and superior remedy so as to oust it by necessary implication.

In order for loss-related questions to be certified as common issues, a plaintiff's expert's methodology need only be sufficiently credible or plausible to establish that loss reached the requisite purchaser level of the distribution chain; it is not necessary that the methodology establish that each and every class member suffered a loss. Aggregate damages under s. 29(1)(b) of the Class Proceedings Act are purely remedial, and available only after all other common issues have been determined, including liability; the aggregate damages provisions cannot be used to distribute damages to class members who did not suffer a loss.

Per Côté J. (dissenting in part): Both appeals should be allowed in part. The discoverability rule does not apply to the limitation period in s. 36(4)(a)(i) of the Competition Act. The event that triggers the commencement of the limitation period — a day on which the conduct was engaged in — occurs independently of when the plaintiff first learns of the wrongdoing. However, it is not plain and obvious that the fraudulent concealment doctrine has no application in the absence of a special relationship.

It is plain and obvious that the claims by umbrella purchasers under s. 36(1)(a) of the Competition Act cannot succeed. Recognizing umbrella purchaser claims would expose defendants to potentially limitless liability for losses that are too remote from the anti-competitive conduct itself. The line should be drawn at loss and damage that flowed from the pricing decisions of the defendants themselves.

For questions to be certified as common issues, the representative plaintiff must show there is some basis in fact for the commonality requirement — that the question is capable of resolution on a class-wide basis. A methodology that is incapable of establishing at trial that at least some of the proposed class members suffered a loss cannot satisfy this requirement.

Cases Cited

By Brown J.

Applied: Pro‑Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477; referred to: Watson v. Bank of America Corp., 2015 BCCA 362, 79 B.C.L.R. (5th) 1; Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53; Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261; M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6; Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147; Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549; Fehr v. Jacob (1993), 1993 CanLII 4407 (MB CA), 14 C.C.L.T. (2d) 200; Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534; Vivendi Canada Inc. v. Dell'Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, 1990 CanLII 110 (SCC), [1990] 1 S.C.R. 1298; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; General Motors of Canada Ltd. v. City National Leasing, 1989 CanLII 133 (SCC), [1989] 1 S.C.R. 641; International Brotherhood of Teamsters v. Therien, 1960 CanLII 33 (SCC), [1960] S.C.R. 265; Gagnon v. Foundation Maritime Ltd., 1961 CanLII 69 (SCC), [1961] S.C.R. 435; Cement LaFarge v. B.C. Lightweight Aggregate, 1983 CanLII 23 (SCC), [1983] 1 S.C.R. 452.

By Côté J. (dissenting in part)

M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6; Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147; Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549; Fehr v. Jacob (1993), 1993 CanLII 4407 (MB CA), 14 C.C.L.T. (2d) 200; Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53; Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R. 801; Pro‑Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477; Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Shah v. LG Chem, Ltd., 2015 ONSC 6148; Shah v. LG Chem, Ltd., 2017 ONSC 2586; Shah v. LG Chem, Ltd., 2018 ONCA 819, 142 O.R. (3d) 721; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534; Bou Malhab v. Diffusion Métromédia CMR Inc., 2011 SCC 9, [2011] 1 S.C.R. 214; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; General Motors of Canada Ltd. v. City National Leasing, 1989 CanLII 133 (SCC), [1989] 1 S.C.R. 641; Fanshawe College of Applied Arts and Technology v. AU Optronics Corp., 2016 ONCA 621, 132 O.R. (3d) 81; Infineon Technologies AG v. Option Consommateurs, 2013 SCC 29, [2013] 3 S.C.R. 600; Vivendi Canada Inc. v. Dell'Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3.

Statutes and Regulations Cited

Budget Implementation Act, 2009, S.C. 2009, c. 2, s. 410.

Class Proceedings Act, R.S.B.C. 1996, c. 50, ss. 1, 4(1), Division 2, 29 to 34, 37(1).

Clayton Act, 15 U.S.C. § 15, s. 4.

Combines Investigation Act, R.S.C. 1970, c. C‑23.

Competition Act, R.S.C. 1985, c. C‑34, ss. 1.1, 36, Part VI, 45, 52, 62.

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 206(1).

Land Titles Act, R.S.A. 2000, c. L-4.

Limitation Act, S.B.C. 2012, c. 13, ss. 6 to 8, 21.

Limitation of Actions Act, S.N.B. 2009, c. L‑8.5, s. 5.

Limitation of Actions Act, S.N.S. 2014, c. 35, s. 8.

Limitations Act, R.S.A. 2000, c. L‑12, s. 3(1).

Limitations Act, R.S.O. 1970, c. 246, s. 45(1).

Limitations Act, S.S. 2004, c. L‑16.1, ss. 5 to 7.

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5, 15.

Securities Act, R.S.O. 1990, c. S.5, s. 138.14.

Statute of Limitations, R.S.B.C. 1960, c. 370, s. 3.

Survival of Actions Act, R.S.N.L. 1990, c. S-32, s. 5.

Authors Cited

Canada. Competition Bureau of Canada. Competitor Collaboration Guidelines. Gatineau, December 2009.

Canada. Consumer and Corporate Affairs. Proposals for a New Competition Policy for Canada: First Stage. Ottawa, 1973.

Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Finance, Trade and Economic Affairs, Issue No. 45, 1st Sess., 30th Parl., May 8, 1975, p. 45:18.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Eizenga, Michael A., et al. Class Actions Law and Practice, 2nd ed. Toronto: LexisNexis, 2009 (loose-leaf updated March 2019, release 55).

Inderst, Roman, Frank P. Maier‑Rigaud, and Ulrich Schwalbe. "Umbrella Effects" (2014), 10 J. Competition L. & Econ. 739.

Linden, Allen M., et al. Canadian Tort Law, 11th ed. Toronto: LexisNexis, 2018.

Mew, Graeme, Debra Rolph, and Daniel Zacks. The Law of Limitations, 3rd ed. Toronto: LexisNexis, 2016.

Spry, I. C. F. The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 9th ed. Pyrmont, N.S.W.: Lawbook Co., 2014.

Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.

Veel, Paul-Erik. Waiting forever for the axe to drop? Discoverability and the limitation period for Competition Act claims, Lenczner Slaght, August 12, 2016 (online: https://litigate.com/waiting-forever-for-the-axe-to-drop-discoverability-and-the-limitation-period-for-competition-act-claims/pdf).

Winkler, Warren K., et al. The Law of Class Actions in Canada, Toronto: Thomson Reuters, 2014.

Wright, Kevin, Todd Shikaze, and Emily Snow. "On the 'Level' After Godfrey: Proving Liability in Canadian Price Fixing Class Actions" (2017), 12 C.A.D.Q. 13.

APPEALS from a judgment of the British Columbia Court of Appeal (Newbury, Groberman and Savage JJ.A.), 2017 BCCA 302, 1 B.C.L.R. (6th) 319, [2017] 12 W.W.R. 448, [2017] B.C.J. No. 1618 (QL), 2017 CarswellBC 2245 (WL Can.), affirming a decision of Masuhara J., 2016 BCSC 844, [2016] B.C.J. No. 979 (QL), 2016 CarswellBC 1257 (WL Can.). Appeals dismissed with costs, Côté J. dissenting in part.

Counsel

W. Michael G. Osborne, Brigeeta Richdale and Jessica Lewis, for the appellants Pioneer Corporation, Pioneer North America, Inc., Pioneer Electronics (USA) Inc., Pioneer High Fidelity Taiwan Co., Ltd. and Pioneer Electronics of Canada Inc.

Laura F. Cooper and Vera Toppings, for the appellants Toshiba Corporation, Toshiba Samsung Storage Technology Corp., Toshiba Samsung Storage Technology Corp. Korea, Toshiba of Canada Ltd. and Toshiba America Information Systems, Inc.

Robert E. Kwinter and Evangelia (Litsa) Kriaris, for the appellants Samsung Electronics Co., Ltd., Samsung Electronics Canada Inc. and Samsung Electronics America, Inc.

Neil Campbell, Joan Young and Samantha Gordon, for the appellants Koninklijke Philips Electronics N.V., Lite‑On IT Corporation of Taiwan, Philips & Lite‑On Digital Solutions Corporation, Philips & Lite‑On Digital Solutions USA, Inc. and Philips Electronics Ltd.

John F. Rook, Q.C., Christiaan A. Jordaan and Emrys Davis, for the appellants Panasonic Corporation, Panasonic Corporation of North America and Panasonic Canada Inc.

Stephen Fitterman, for the appellants BENQ Corporation, BENQ America Corporation and BENQ Canada Corp.

Reidar M. Mogerman, Linda J. Visser, David G. A. Jones, Charles M. Wright, Katie I. Duke and Bridget M. R. Moran, for the respondent.

Maxime Nasr and Violette Leblanc, for the intervener Option consommateurs.

Jonathan J. Foreman and Jean‑Marc Metrailler, for the intervener the Consumers Council of Canada.

Sandra A. Forbes and Adam Fanaki, for the intervener the Canadian Chamber of Commerce.

Jean‑Marc Leclerc and Mohsen Seddigh, for the intervener the Consumers' Association of Canada.

Reasons for Judgment

The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ. was delivered by

Brown J. —

I. Overview

[1] The proposed representative plaintiff, Neil Godfrey, applied for certification of a class proceeding under the British Columbia Class Proceedings Act, R.S.B.C. 1996, c. 50. The defendants manufacture Optical Disc Drives ("ODDs" — a memory storage device that uses laser light or electromagnetic waves near the light spectrum to read and/or record data on optical discs), and ODD products (products that contain ODDs). Godfrey alleges that the defendants conspired to fix prices of ODDs and ODD products during a class period.

[2] The certification judge granted Godfrey's application. Two sets of defendants — one led by Pioneer Corporation, and the other by Toshiba Corporation — each appealed from that decision, unsuccessfully, to the British Columbia Court of Appeal. At stake in these appeals is, principally, whether it is plain and obvious that the claim under s. 36(1)(a) of the Competition Act, R.S.C. 1985, c. C-34, of so-called "umbrella purchasers" who bought ODDs or ODD products manufactured and supplied by a non-defendant cannot succeed.

[3] These appeals also present an occasion to clarify the operation of the statutory limitation period for claims under s. 36(1)(a) of the Competition Act, to affirm the availability of common law and equitable actions in respect of claims also brought under s. 36(1)(a) of the Competition Act, and to reiterate the standard required to certify loss-related questions as common issues in class proceedings.

[4] As I will explain below, my disposition of all these matters would lead me to dismiss the appeals.

II. Background

[5] Godfrey applied for certification of a class proceeding against 42 defendants (collectively, "Toshiba"), alleging a conspiracy to raise, maintain, fix and/or stabilize the price of ODDs between January 1, 2004 and January 1, 2010 ("class period"). He deposed that he purchased ODD products during the class period, and that he seeks to bring the proposed class proceeding on behalf of all British Columbia residents who purchased an ODD or an ODD product during the class period. The proposed class consisted of:

• (a) direct purchasers, whose ODD or ODD product was manufactured or supplied by a defendant and purchased from that defendant,
• (b) indirect purchasers, whose ODD or ODD product was manufactured or supplied by a defendant and purchased from a non-defendant; and
• (c) umbrella purchasers, whose ODD or ODD product was manufactured and supplied by a non-defendant.

III. Judicial History

A. British Columbia Supreme Court, 2016 BCSC 844 — Masuhara J.

[6] The certification judge certified the action as a class proceeding, subject to certain exceptions and conditions. One condition was that the class definition be amended so as to satisfy s. 4(1)(b) of the Class Proceedings Act. The certification judge held that the class definition proposed by Godfrey captured all four types of purchasers, and certified all four sub-classes.

[7] In his reasons, the certification judge resolved a number of matters, only two of which are relevant to these appeals: whether the pleadings disclose a cause of action, and whether Godfrey's proposed questions relating to loss suffered by the class are certifiable as common questions.

(1) Do the Pleadings Disclose a Cause of Action?

(a) The Pioneer Claim

[8] The certification judge first considered whether Godfrey's pleadings satisfy s. 4(1)(a) of the Class Proceedings Act, which conditions certification upon the pleadings disclosing a cause of action.

[9] A subset of the named defendants ("Pioneer") opposed Godfrey's certification application, arguing that the action was bound to fail because it was barred by the two-year limitation period in s. 36(4) of the Competition Act (although the action against the other defendants was filed on September 27, 2010, the action against Pioneer was not commenced until August 16, 2013, after the alleged conspiracy had been ongoing from January 1, 2004 through January 1, 2010). The certification judge, however, found that the action was not plain and obviously statute-barred. He held that: (1) the discoverability rule applies to s. 36(4)(a)(i) of the Competition Act; and (2) it is not plain and obvious that Pioneer cannot rely on the fraudulent concealment doctrine.

(b) Umbrella Purchasers

[10] Toshiba argued that the umbrella purchasers had no cause of action under s. 36(1)(a) of the Competition Act, because their inclusion would expose it to indeterminate liability. For four reasons, however, the certification judge held that the umbrella purchasers had a cause of action:

[11] The certification judge then considered Toshiba's argument that a breach of the Competition Act could not constitute the "unlawful" element of civil causes of action, such as the tort of unlawful means conspiracy. He held that he was bound by Watson v. Bank of America Corp., 2015 BCCA 362, 79 B.C.L.R. (5th) 1, to hold that a breach of s. 45 of the Competition Act can satisfy the "unlawful means" element of the tort of unlawful means conspiracy, and certified these issues.

(c) "Unlawfulness" Element

[12] Godfrey sought to have 25 questions certified as common questions under s. 4(1)(c) of the Class Proceedings Act (several of which related to loss alleged to have been suffered by the proposed class). Godfrey's expert, Dr. Keith Reutter, opined that (1) all the proposed class members would have been impacted by the alleged price-fixing conspiracy and (2) there are accepted methods available to estimate any overcharge and aggregate damages that resulted from the alleged wrongdoing using evidence common to the proposed class.

[13] After examining Dr. Reutter's opinion in detail, the certification judge concluded that his was a plausible methodology which satisfied the standard set in Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477, for evidence to support certifying loss as a common issue.

[14] The certification judge therefore certified all of the common issues with respect to the direct purchasers and indirect purchasers, except those relating to the unlawful means tort. With respect to the umbrella purchasers, he certified all of the common issues except those relating to the unlawful means tort and those relating to aggregate damages and restitution.

[15] Pioneer appealed, arguing the certification judge erred in holding: (1) that the limitation period defence cannot be considered at the certification stage; (2) that it is not plain and obvious that the discoverability rule never applies to the limitation period in s. 36(4)(a)(i) of the Competition Act; and (3) that it is not plain and obvious that Pioneer cannot rely on the doctrine of fraudulent concealment.

[16] Toshiba also appealed, arguing the certification judge erred by: (1) recasting the standard for certifying loss as a common issue; (2) holding that a breach of s. 45 of the Competition Act can furnish the "unlawfulness" element for common law actions; and (3) allowing the umbrella purchasers' claims to proceed.

B. British Columbia Court of Appeal, [2017 BCCA 302](https://www.canlii.org/en/bc/bcca/doc/2017/2017bcca302/2017bcca302.html), 1 B.C.L.R. (6th) 319 — per Savage J.A.

[17] The Court of Appeal dismissed both sets of appeals.

[18] Agreeing with the certification judge, the Court of Appeal held that limitations arguments should, generally, not be considered at the certification stage. Further, and that aside, the limitations issue in this case was "intimately connected with the facts of the alleged conspiracy" and should be left to the trial judge. The Court of Appeal also affirmed the discoverability rule's application to s. 36(4)(a)(i).

[19] Further, the certification judge was correct, said the Court of Appeal, to conclude that it is not plain and obvious that the doctrine of fraudulent concealment could not apply. Equitable fraud was sufficient to invoke the doctrine, and a purely commercial relationship could support it.

[20] Toshiba argued that, since Dr. Reutter's proposed methodology could neither demonstrate that loss was suffered by each class member nor identify the class members who did not suffer harm, the certification judge erred in certifying questions relating to harm as common questions. In the Court of Appeal's view, however, the certification judge's standard was correct: Dr. Reutter's methodology need only show overcharges were passed on to the indirect-purchaser level, consistent with Microsoft.

[21] The Court of Appeal rejected these arguments, noting that Microsoft allows loss to be certified as a common issue if "the methodology [is] able to establish that the overcharges have been passed on to the indirect-purchaser level in the distribution chain".

[22] The Court of Appeal agreed with the certification judge that a breach of s. 45 of the Competition Act could represent the unlawfulness element of the various causes of action advanced by Godfrey.

[23] Here, too, the Court of Appeal found no error in the certification judge's reasons. Umbrella purchasers have a cause of action under s. 36(1)(a) of the Competition Act based on a breach of s. 45(1). Toshiba's arguments that the certification judge did not expressly consider whether umbrella purchasers have a cause of action were also rejected.

[24] Finally, the Court of Appeal agreed with the certification judge that Toshiba's concerns about indeterminate liability did not support denying certification of the umbrella purchasers' claims. An action under s. 36(1)(a) based on a breach of s. 45(1) is subject to internal limitations within those provisions.

IV. Issues on Appeal

[25] Pioneer's appeal raises the issue of whether it is plain and obvious that the claim against it will not succeed because it is statute-barred by s. 36(4)(a)(i) of the Competition Act. In answering this question, we must decide:

1. whether the principle of discoverability applies to the limitation period in s. 36(4)(a)(i) of the Competition Act; and
2. whether, for fraudulent concealment to toll the limitation period in s. 36(4)(a)(i) of the Competition Act, a special relationship between the parties must be established.

[26] The appeals, taken together, raise three common issues:

1. whether it is plain and obvious that the umbrella purchasers' claim under s. 36(1)(a) of the Competition Act cannot succeed;
2. whether it is plain and obvious that s. 36(1) of the Competition Act bars a plaintiff from bringing concurrent common law and equitable claims; and
3. the required standard to certify loss as a common issue, and whether Dr. Reutter's evidence satisfies that standard.

V. Analysis

[27] Section 4(1) of the Class Proceedings Act contains the requirements for certification of a class proceeding in British Columbia. At issue is whether Godfrey has satisfied s. 4(1)(a), which requires that the pleadings disclose a cause of action, and s. 4(1)(c), which requires that the claims of class members raise common issues.

[28] Although at certification the plaintiff must satisfy s. 4(1)'s requirements that I have just described, the standard of review on appeal for each particular question depends on the nature of the question, and will be identified in turn.

A. Pioneer's Appeal

[29] Noting that the alleged conspiracy is said to have ended on January 1, 2010, and that the action against Pioneer was not commenced until August 16, 2013, Pioneer argues that Godfrey's claim is statute-barred, as it was commenced after the two-year limitation period in s. 36(4)(a)(i) of the Competition Act expired. As I will explain, I agree that the discoverability rule applies to extend the limitation period in s. 36(4)(a)(i). It is not plain and obvious that Godfrey's claim against Pioneer will fail on this basis. Although it is therefore unnecessary to opine on whether the doctrine of fraudulent concealment would apply, I take this opportunity to briefly discuss why its application is not conditioned upon a special relationship between the parties.

[30] Determining whether discoverability applies to the limitation period in s. 36(4)(a)(i) is a question of law subject to a standard of correctness, as is the question of whether fraudulent concealment requires a special relationship to be established between the parties. The applicability of either doctrine is, however (and as noted by the Court of Appeal), "bound up in the facts" and must be left to the trial judge to decide.

(1) Discoverability

(a) Limitation Periods Run From the Accrual or Knowledge of the Cause of Action

[31] This Court has recognized that limitation periods may be subject to a rule of discoverability, such that a cause of action will not accrue for the purposes of the running of a limitation period until "the material facts on which [the cause of action] is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence" (Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147, at p. 224; Ryan, at paras. 2 and 22).

[32] This discoverability rule does not apply automatically to every limitation period. While a "rule", it is not a universally applicable rule of limitations, but a rule of construction to aid in the interpretation of statutory limitation periods (Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549, at para. 37). It can therefore be displaced by clear legislative language. In this regard, many provincial legislatures have chosen to enact statutory limitation periods that codify, limit or oust entirely discoverability's application, particularly in connection with ultimate limitation periods.

[33] Further, absent legislative intervention, the discoverability rule applies only where the limitation period in question runs from the accrual of the cause of action, or from some other event that occurs when the plaintiff has knowledge of the injury sustained:

In my opinion, the judge-made discoverability rule is nothing more than a rule of construction. Whenever a statute requires an action to be commenced within a specified time from the happening of a specific event, the statutory language must be construed. When time runs from "the accrual of the cause of action" or from some other event which can be construed as occurring only when the injured party has knowledge of the injury, the judge-made discoverability rule applies to postpone the running of time until the plaintiff has or ought to have such knowledge. When time runs from some other event which clearly occurs without regard to the injured party's knowledge, the judge-made discoverability rule does not apply.

(Fehr v. Jacob (1993), 1993 CanLII 4407 (MB CA), 14 C.C.L.T. (2d) 200 (Man. C.A.), at para. 22, cited in Peixeiro, at para. 37.)

[34] Two points flow from this statement. First, where the running of a limitation period is contingent upon the accrual of a cause of action or some other event that can occur only when the plaintiff has knowledge of his or her injury, the discoverability principle applies in order to ensure that the plaintiff had knowledge of the existence of his or her legal rights before such rights expire (Peixeiro, at para. 39).

[35] Secondly (and conversely), where a statutory limitation period runs from an event unrelated to the accrual of the cause of action or which does not require the plaintiff's knowledge of his or her injury, the rule of discoverability will not apply. In Ryan, for example, this Court held that discoverability did not apply to s. 5 of the Survival of Actions Act, R.S.N.L. 1990, c. S-32, which stated that an action against a deceased could not be brought after one year from the date of death. As the Court explained (para. 24):

The law does not permit resort to the judge-made discoverability rule when the limitation period is explicitly linked by the governing legislation to a fixed event unrelated to the injured party's knowledge or the basis of the cause of action. [Emphasis added; citation omitted.]

By tying, then, the limitation period to an event unrelated to the cause of action, and which did not necessitate the plaintiff's knowledge of an injury, the legislature had clearly displaced the discoverability rule (Ryan, at para. 27).

[36] In determining whether a limitation period runs from the accrual of a cause of action or knowledge of the injury, such that discoverability applies, substance, not form, is to prevail: even where the statute does not explicitly state that the limitation period runs from "the accrual of the cause of action", discoverability will apply if it is evident that the operation of a limitation period is, in substance, conditioned upon accrual of a cause of action or knowledge of an injury. Indeed, clear statutory text is necessary to oust its application. In Peixeiro, for example, this Court applied the discoverability rule to s. 206(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which stated that an action must be commenced within two years of the time when "damages were sustained". The use of the phrase "damages were sustained" rather than "when the cause of action arose" was a "distinction without a difference", as it was unlikely that the legislature intended that the limitation period should run without the plaintiff's knowledge (para. 38).

[37] It is therefore clear that the "the judge-made discoverability rule will apply when the requisite limitation statute indicates that time starts to run from when the cause of action arose (or other wording to that effect)" (G. Mew, D. Rolph and D. Zacks, The Law of Limitations (3rd ed. 2016), at p. 103 (emphasis added)). And, while my colleague Côté J. claims to disagree with my analysis, I am fortified by the endorsement in her reasons of this formulation of discoverability (paras. 140 and 149).

[38] The issue raised by this appeal is what constitutes sufficiently clear legislative expression in this regard, such that discoverability will apply. In my view, where the event triggering the limitation period is an element of the cause of action, the legislature has shown its intention that the limitation period be linked to the cause of action's accrual, such that discoverability will apply. As this Court stated in M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, the accrual of a cause of action is a "gradation" (p. 34). Where all the elements of a cause of action occur simultaneously, the cause of action accrues contemporaneously with the occurrence of each element (M. (K.), at p. 34). Where, however, the occurrence of each element is separated in time, the accrual of the cause of action is a continuing (but not continual) process. That is, the cause of action will continue to accrue as each element of the cause of action occurs.

[39] This was what the Court in Ryan was referring to when it said that discoverability does not apply where the limitation period "is explicitly linked by the governing legislation to a fixed event unrelated to the injured party's knowledge or the basis of the cause of action" (para. 24 (emphasis added)). In Ryan, discoverability did not apply because the action was "complete in all its elements" before the operation of the event triggering the limitation period (para. 18). The limitation period was not dependent upon the accrual of the cause of action and thus the limitation period would begin to run independent of the accrual of the cause of action. Citing the trial judge with approval, the Court added this:

The fact of death is of no relevance to the cause of action in question. It is not an element of the cause of action and is not required to complete the cause of action. Whatever the nature of the cause of action, it is existing and complete before the Survival of Actions Act operates, in the case of a death, to maintain it and provide a limited time window within which it must be pursued. The fact of the death is irrelevant to the cause of action and serves only to provide a time from which the time within which to bring the action is to be calculated. [Emphasis added; para. 32.]

[40] Had, however, the event triggering the limitation period been an element of the cause of action, or had it been required to occur before the cause of action could accrue, discoverability could apply (Ryan, at paras. 29-30, citing Burt v. LeLacheur, 2000 NSCA 90, 189 D.L.R. (4th) 193). I do not see my colleague Côté J. as disagreeing on this point: she is quite right when she says that "the words 'basis of the cause of action' in para. 24 of Ryan should be understood as essentially synonymous with the 'arising or accrual of the cause of action'" (para. 148). As this Court held in Peixeiro, where the limitation period is based on an event that can be construed as synonymous with the accrual of the cause of action, discoverability will apply (para. 38).

[41] From all this, it is evident that discoverability continues to apply where the legislature has shown its intent that a limitation period shall run from "when the cause of action arose (or other wording to that effect)" or where the event triggering the limitation period requires the plaintiff's knowledge of an injury.

(b) The Statutory Scheme, and the Objects of Statutory Limitation Periods

[42] Bearing in mind that, as I have explained, the discoverability rule is a rule of construction, its application depends on an examination of the pertinent statutory text to assess what triggers the running of the limitation period in question, supplemented by consideration of the statutory scheme and the object of the statute.

[43] Turning first to the statutory text, the relevant provisions of s. 36 of the Competition Act state:

36 (1) Any person who has suffered loss or damage as a result of

(a) conduct that is contrary to any provision of Part VI, . . .

may, in any court of competent jurisdiction, sue for and recover from the person who engaged in the conduct or failed to comply with the order an amount equal to the loss or damage proved to have been suffered by him, together with any additional amount that the court may allow not exceeding the full cost to him of any investigation in connection with the matter and of proceedings under this section.

(4) No action may be brought under subsection (1),

(a) in the case of an action based on conduct that is contrary to any provision of Part VI, after two years from

(i) a day on which the conduct was engaged in, or

(ii) the day on which any criminal proceedings relating thereto were finally disposed of,

whichever is the later; . . .

[44] The text of s. 36(4)(a)(i) provides that no action may be brought under s. 36(1)(a) after two years from a day on which conduct contrary to Part VI occurred. From this, it is clear that the event triggering this particular limitation period is an element of the underlying cause of action. That is, under s. 36(1)(a), conduct contrary to Part VI must have occurred. And, under s. 36(4)(a)(i), the limitation period begins on a day on which that conduct occurred. In other words, the event triggering the limitation period — "a day on which the conduct was engaged in" — must occur for both the cause of action to accrue and the limitation period to begin running.

[45] The scheme of s. 36(4) also supports the view that discoverability was intended to apply to the limitation period in s. 36(4)(a)(i). Section 36(4)(a) sets out two limitation periods — s. 36(4)(a)(i), which runs from the day on which the conduct occurred and s. 36(4)(a)(ii), which runs from the day on which any criminal proceedings relating to the conduct were finally disposed of. These alternatives reflect the drafters' awareness that the plaintiffs in such cases may not be aware of the limitation period's commencement, i.e., the occurrence of conduct and the institution of criminal proceedings against the alleged conspirators. This is because price-fixing conspiracies are, by their nature, secretive affairs.

[46] So much for the statutory text and scheme. I turn, then, to consider this limitation period's relation to the overall object of the Competition Act, which is to "maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy . . . and to provide consumers and small and medium-sized enterprises with competitive prices and product choices" (s. 1.1). A conspiracy to price-fix is the "very antithesis" of this objective, and the Competition Act imposes "severe penalties" on such conduct.

[47] The application of discoverability to the limitation period in s. 36(4)(a)(i) is also supported by the object of statutory limitation periods. This Court has recognized that three rationales underlie limitation periods (M. (K.), at pp. 29-31), which courts must consider in deciding whether to apply the discoverability rule. These rationales are:

[48] Consideration of these rationales for limitation periods affirms discoverability's application here. Even recognizing that shorter limitation periods indicate that Parliament put a premium on the certainty that comes with a limitation statute's function of repose (Peixeiro, at para. 34), by applying discoverability to s. 36(4)(a)(i), the evidential rationale is served, since the application of discoverability does not allow a claim to be advanced until the plaintiff has knowledge of the conduct. And, the certainty rationale is not unduly compromised, since it is the plaintiff's actual or constructive knowledge that triggers the limitation period.

[49] In contrast, applying discoverability to s. 36(4)(a)(i) would not unduly affect the defendant's interests, as discoverability does not excuse the plaintiff from moving matters along, such that the rationale of encouraging diligence is still served (Peixeiro, at para. 39). Where plaintiffs know of the conspiracy, they must act; where they do not and could not know of the conspiracy, it would be unjust to bar their claims.

[50] For all of these reasons, I find that the discoverability rule applies to the limitation period in s. 36(4)(a)(i), such that it begins to run only when the material facts on which Godfrey's claim is based were discovered by him or ought to have been discovered by him by the exercise of reasonable diligence. As a consequence, it is not plain and obvious that the action against Pioneer is statute-barred.

[51] In light of my finding that discoverability applies to s. 36(4)(a)(i), it is, strictly speaking, unnecessary to consider the doctrine of fraudulent concealment. Given, however, the submissions and attention given to this issue at the courts below, I will comment briefly here on whether fraudulent concealment requires a special relationship between the parties.

[52] Fraudulent concealment is an equitable doctrine that prevents limitation periods from being used "as an instrument of injustice" (M. (K.), at pp. 58-59). Where the defendant fraudulently conceals the existence of a cause of action, the limitation period is suspended until the plaintiff discovers the fraud or ought reasonably to have discovered the fraud (Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335, at p. 390). It is a form of "equitable fraud" (Guerin, at p. 390):

It is now clear . . . that the word "fraud" in s. 26(b) of the Limitation Act, 1939, is by no means limited to common law fraud or deceit. Equally, it is clear, having regard to the decision in Beaman v. A.R.T.S., Ltd., [1949] 1 All E.R. 465, that no degree of moral turpitude is necessary to establish equitable fraud. It is sufficient if the defendant's conduct, having regard to all the circumstances, has been such that to allow him to rely on the Statute of Limitations would "be an affront to the court's sense of justice". . . .

(Kitchen v. Royal Air Force Association, [1958] 1 W.L.R. 563 (C.A.), at pp. 573-74.)

[53] While it is therefore clear that equitable fraud can be established in cases where a special relationship subsists between the parties, Lord Evershed, M.R. did not limit its establishment to such circumstances, nor did he purport to define exhaustively the circumstances in which it would or would not apply. Indeed, he expressly refused to do so: "What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define 200 years ago" (p. 574).

[54] When, then, does fraudulent concealment arise so as to delay the running of a limitation period? Recalling that it is a form of equitable fraud, it becomes readily apparent that what matters is not whether there is a special relationship between the parties, but whether it would be, for any reason, unconscionable for the defendant to rely on the advantage gained by having concealed the existence of a cause of action. This was the Court's point in Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678:

[Equitable fraud] ". . . refers to transactions falling short of deceit but where the Court is of the opinion that it is unconscientious for a person to avail himself of the advantage obtained" (p. 37). Fraud in the "wider sense" of a ground for equitable relief "is so infinite in its varieties that the courts have not attempted to define it" (p. 37).

It follows that the concern which drives the application of the doctrine of equitable fraud is not limited to the unconscionability of taking advantage of a special relationship with the plaintiff. Nor is the doctrine's application limited, as my colleague suggests, to cases where there is something commensurate with or tantamount to a special relationship.

[55] The question of whether Pioneer's alleged conduct amounts to fraudulent concealment will, of course, fall to be decided by a trial judge. Nevertheless, I agree with the Court of Appeal and the certification judge that it is not "plain and obvious" that fraudulent concealment could not delay the running of the limitation period in this case.

B. Umbrella Purchasers' Cause of Action Under Section 36(1) of the Competition Act

[56] Toshiba argues that the certification judge erred by certifying the umbrella purchasers' claims brought under s. 36(1)(a) of the Competition Act. For the following reasons, I disagree.

[57] Whether umbrella purchasers have a cause of action under s. 36(1)(a) of the Competition Act is a question of law, reviewable on a standard of correctness. Since, as I explain below, I have concluded that umbrella purchasers do have a cause of action under s. 36(1)(a), it is not plain and obvious that their claim cannot succeed. Godfrey's pleadings disclose a cause of action for umbrella purchasers, thereby satisfying the conditions under s. 4(1)(a) of the Class Proceedings Act for certifying the umbrella purchasers' claims.

[58] The theory behind holding price-fixers liable to umbrella purchasers — who, it will be recalled are in this case persons who purchased ODDs or ODD products neither manufactured nor supplied by the defendants — is that the defendants' anti-competitive cartel activity creates an "umbrella" of supra-competitive prices, causing non-cartel manufacturers to raise their prices (Shah v. LG Chem, Ltd., 2015 ONSC 6148, 390 D.L.R. (4th) 87, at para. 159). Additionally, the non-cartel manufacturers have an incentive to increase prices since increased demand for their products gives them an opportunity to profit by raising their prices. As the Court of Justice of the European Union explained:

Where a cartel manages to maintain artificially high prices for particular goods and certain conditions are met, relating, in particular, to the nature of the goods or the size of the market covered by that cartel, it cannot be ruled out that a competing undertaking, outside the cartel in question, might choose to set its prices at a level higher than it would have chosen under normal competitive conditions.

(Kone AG v. ÖBB-Infrastruktur AG, [2014] ECLI:EU:C:2014:1317, at para. 30)

[59] In short, a rising tide lifts all boats; under the theory of umbrella pricing, the entire market for the subject product is affected:

Umbrella effects typically arise when price increases lead to a diversion of demand to substitute products. Because successful cartels typically reduce quantities and increase prices, this diversion leads to a substitution away from the cartels' products toward substitute products produced by cartel outsiders. As a consequence, cartel outsiders also experience an increase in demand for their own products. This greater demand, in turn, allows them to charge higher prices.

(R. Inderst, F. Maier-Rigaud and U. Schwalbe, "Umbrella Effects" (2014), 10 J. Competition L. & Econ. 739, at p. 740)

[60] Several decisions of lower courts have certified umbrella purchaser actions brought under s. 36(1)(a) without expressly considering whether such purchasers had a cause of action.

[61] Whether umbrella purchasers have a cause of action under s. 36(1)(a) of the Competition Act is a question of statutory interpretation. The text of s. 36(1)(a) must therefore be read in its entire context and in its grammatical and ordinary sense, harmoniously with the scheme and objects of the Competition Act.

[62] As already noted, s. 36(1)(a) of the Competition Act creates a statutory cause of action which allows for the recovery of damages or loss that resulted from conduct contrary to Part VI. The relevant portion states:

Recovery of damages

36 (1) Any person who has suffered loss or damage as a result of

(a) conduct that is contrary to any provision of Part VI . . .

may . . . sue for and recover from the person who engaged in the conduct . . . an amount equal to the loss or damage proved to have been suffered by him, together with any additional amount that the court may allow not exceeding the full cost to him of any investigation in connection with the matter and of proceedings under this section.

[63] Godfrey relies on "conduct that is contrary to . . . Part VI" ("Offences in Relation to Competition"), since he alleges that Toshiba acted contrary to s. 45(1)(b), (c), and (d) of the Competition Act. During the class period,[^1] s. 45(1) stated:

Conspiracy

45. (1) Every one who conspires, combines, agrees or arranges with another person

(b) to prevent, limit or lessen, unduly, the manufacture or production of a product or to enhance unreasonably the price thereof,

(c) to prevent or lessen, unduly, competition in the production, manufacture, purchase, barter, sale, storage, rental, transportation or supply of a product, or in the price of insurance on persons or property, or

(d) to otherwise restrain or injure competition unduly,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or to a fine not exceeding one million dollars or to both.

[64] The text of s. 36(1)(a) supports the view that umbrella purchasers have a cause of action thereunder for conduct contrary to s. 45(1) of the Competition Act. Section 36(1)(a) provides a cause of action to any person who has suffered loss or damage as a result of conduct contrary to s. 45. Significantly, Parliament's use of "any person" does not narrow the realm of possible claimants. Rather, by using broadly inclusive language, Parliament has signalled that, subject to proof of the remaining elements of s. 36(1)(a), the potential class of claimants is inclusive.

[65] As I have already recounted, the purpose of the Competition Act is to "maintain and encourage competition in Canada" with a view to providing consumers with "competitive prices and product choices" (s. 1.1). A conspiracy to price-fix is the "very antithesis of the Competition Act's objective" (Shah (ONCA), at para. 38). Monetary sanctions for such anti-competitive conduct therefore further the Act's purpose by deterring violations and compensating those who suffer from them.

[66] Allowing umbrella purchaser actions furthers deterrence because it increases the potential liability falling upon those who engage in anti-competitive behaviour (Shah (ONCA), at para. 38). Here, Godfrey alleges that four of the named defendants controlled 94% of the global ODD market. While this means that Toshiba's potential liability to the umbrella purchasers is not limitless, it is substantial, and may operate as an important deterrent.

[67] The objective of compensation is also furthered by allowing umbrella purchaser actions, because doing so affords umbrella purchasers recourse to recover from loss arising from what, for the purposes of these appeals, is assumed to have been anti-competitive conduct. Barring a class of purchasers who were, on the theory pleaded, intended by the defendants to pay higher prices as a result of the alleged conspiracy would be contrary to this objective.

[68] Relatedly, and while far from determinative, departmental and parliamentary statements fortify my view that Parliament intended that the cause of action in s. 36(1)(a) be broadly available, such that anyone who suffers a loss from anti-competitive behaviour could bring a private action. The briefing document accompanying the first stage of the modernization amendments (which introduced the statutory cause of action) stated:

The proposed private right of action would provide an individual whose economic interest has been adversely affected by unlawful combines practices, the right to sue for damages suffered.

(Consumer and Corporate Affairs Canada, Proposals for a New Competition Policy for Canada (1973), at pp. 48-49)

[69] Toshiba argues that recognizing the umbrella purchasers as having a cause of action would expose Toshiba to a "potentially limitless scope of liability". This raises the question, first of all, of whether indeterminate liability is relevant at all to deciding the scope of possible s. 36(1)(a) claimants for conduct contrary to s. 45(1) of the Competition Act. One might say that this is a policy issue for Parliament, not courts, to resolve, and that courts ought not to import additional limitations that Parliament has not seen fit to include.

[70] Toshiba argues that indeterminate liability is a relevant consideration here because the umbrella purchasers seek to recover for pure economic loss. Toshiba relies upon this Court's statement in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, that "[t]he risk of indeterminate liability is enhanced by the fact that the claims are for pure economic loss" (para. 100). In any case, even were indeterminacy a relevant consideration, I find that it is not raised on the facts here.

[71] Several features of this case, however, lead me to the view that recognizing the umbrella purchasers' cause of action under s. 36(1)(a) does not risk exposing Toshiba to indeterminate liability.

[72] First, Toshiba's liability is limited by the class period, and by the specific products whose prices are alleged to have been fixed. Whereas in Imperial Tobacco, Canada had no control over who smoked light cigarettes (para. 99), the theory of umbrella effects links the pricing decisions of the non-defendant manufacturers to Toshiba's anti-competitive behaviour.

[73] This supports the submission made before us by Godfrey's counsel that umbrella effects are "not just a known and foreseeable consequence of what the defendants are doing, it's an intended consequence" (transcript, at p. 61). The point is that the results of Toshiba's alleged anti-competitive behaviour are not indeterminate. Intended results are not indeterminate, but pre-determined. I therefore reject the indeterminate liability argument.

[74] Secondly, and as I have already recounted, s. 36(1)(a) limits recovery to only those purchasers who can show that they suffered a loss or damage "as a result of" the defendants' conspiratorial conduct. In order to recover under s. 36(1)(a), then, the umbrella purchasers will have to demonstrate that Toshiba engaged in anti-competitive behaviour, that the umbrella purchasers suffered "loss or damage", and that such loss or damage was suffered "as a result of" the anti-competitive conduct.

[75] Thirdly, the text of s. 45(1) in force during the class period is instructive. The elements of the wrongful conduct outlined therein were described by the British Columbia Court of Appeal in Watson (at paras. 73-74):

[T]he actus reus elements of former s. 45 are:

i) the defendant conspired, combined, agreed, or arranged with another person; and

ii) the agreement was to enhance unreasonably the price of a product, to lessen unduly the supply of a product, or to otherwise restrain or injure competition unduly.

The mens rea element of former s. 45 as defined in R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606 at 659-660, requires:

i) the defendant had a subjective intention to agree and was aware of the agreement's terms; and

ii) the defendant had the required objective intention, that is, a reasonable business person would or should be aware that the likely effect of the agreement would be to lessen competition unduly.

(See also: Shah (ONCA), at para. 50; R. c. Proulx, 2016 QCCA 1425, at para. 20.)

While the subjective mens rea does not require that the defendants' conduct be directed specifically towards the claimant, s. 45(1) "limits the reach of liability to those who, at a minimum, specifically intend to agree upon anti-competitive conduct" (Shah (ONCA), at para. 51).

[76] Taken together, these features of ss. 36(1)(a) and 45(1) of the Competition Act limit the availability of this cause of action to those claimants who can demonstrate: (1) a causal link between the loss suffered and the conspiratorial conduct; and (2) that the defendants' conduct satisfies the actus reus and mens rea elements of s. 45(1) of the Competition Act.

[77] This is not to say that umbrella purchasers' actions will not be complex or otherwise difficult to pursue. Marshalling and presenting evidence to satisfy the conditions placed by Parliament on recovery under ss. 36(1)(a) and 45(1) — showing a causal link between loss and conspiratorial conduct, and proving the actus reus and mens rea of s. 45(1) — represents a significant burden. That said, the fact that a claim may ultimately prove difficult to make out at trial is not a reason to preclude the claim at the certification stage.

[78] In view of the foregoing, it is not plain and obvious that the umbrella purchasers' cause of action under s. 36(1)(a) of the Competition Act cannot succeed, and I would reject this ground of appeal.

C. Section 36(1) of the Competition Act Does Not Bar Common Law or Equitable Claims

[79] In addition to his statutory claims under the Competition Act, Godfrey advances claims in, inter alia, civil conspiracy.

[80] Toshiba argues that the courts below erred in two respects concerning the relationship between a statutory claim under the Competition Act and the tort of civil conspiracy. First, it says that the tort of civil conspiracy based on a breach of the predecessor statute to the Competition Act (the Combines Investigation Act, R.S.C. 1970, c. C-23) was never available to plaintiffs prior to the enactment in 1975 of the private right of action. Secondly, and in any event, the courts below failed to recognize that, by legislating ss. 36(1) and 45(1) of the Competition Act, Parliament intended to oust the common law tort of civil conspiracy.

[81] These arguments raise questions of law, and are therefore reviewed on a standard of correctness. For the reasons below, I reject both arguments, and it is therefore not plain and obvious that Godfrey's common law and equitable claims cannot succeed, except as was otherwise held by the certification judge.[^2]

(1) The Tort of Civil Conspiracy Based on the Breach of a Statute Existed Prior to the Enactment of the Statutory Cause of Action

[82] To be clear, I do not dispute Toshiba's submission that the 1975 amendments were significant. The predecessor to the Competition Act (the Combines Investigation Act) was exclusively penal — indeed, its constitutionality as an exercise of Parliament's legislative authority over the criminal law was upheld in Proprietary Articles Trade Association v. Attorney General for Canada, 1931 CanLII 385 (UK JCPC), [1931] A.C. 310 (P.C.). In 1975, Parliament supplemented this penal function with regulatory and civil enforcement provisions, including a civil remedy provision (now s. 36(1)) (Watson, at para. 36).

[83] All this said, our law had recognized the tort of civil conspiracy based on the breach of a statute long before Parliament legislated a civil right of action in 1975. In International Brotherhood of Teamsters v. Therien, 1960 CanLII 33 (SCC), [1960] S.C.R. 265, and Gagnon v. Foundation Maritime Ltd., 1961 CanLII 69 (SCC), [1961] S.C.R. 435, this Court imposed liability on trade unions for unlawful means conspiracy for conduct prohibited by statute. And, in Cement LaFarge v. B.C. Lightweight Aggregate, 1983 CanLII 23 (SCC), [1983] 1 S.C.R. 452, which was decided on the basis of the Combines Investigation Act, this Court affirmed not only the existence of the tort of civil conspiracy, but also that a breach of the Combines Investigation Act could satisfy the "unlawful" element of unlawful means conspiracy (pp. 471-72). Any question on this point was settled when LaFarge was cited in A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177, at para. 64, for the same proposition — that a breach of statute could satisfy the "unlawful means" component of the tort of unlawful means conspiracy.

[84] The law admits of no ambiguity on this point. Prior to the enactment of the cause of action contained in what is now s. 36(1) of the Competition Act, a breach of s. 45(1) of the Competition Act was, as it still is, able to satisfy the "unlawful means" element of the tort of civil conspiracy.

(2) The Enactment of the Statutory Cause of Action Did Not Oust Common Law and Equitable Actions

[85] Turning to Toshiba's other argument, the starting point in deciding whether a common law right of action has been legislatively ousted is the presumption that Parliament does not intend to abrogate common law rights (R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 538). While s. 36(1) does not by its express terms oust common law causes of action, legislation may rebut this presumption by ousting the common law either expressly or by necessary implication (Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, 1990 CanLII 110 (SCC), [1990] 1 S.C.R. 1298, at pp. 1315-16).

[86] In Gendron, this Court held, for three reasons, that the Canada Labour Code, R.S.C. 1970, c. L-1, ousted the common law duty of fair representation by necessary implication. First, the content of the duty in the Canada Labour Code was co-extensive with the common law duty such that "[t]he common law duty is . . . not in any sense additional to the statutory duty". Secondly, the Code provided a "new and superior" remedy. Thirdly, the Code was a "comprehensive and exclusive code" regarding the matter in issue.

[87] None of these considerations apply to s. 36(1) of the Competition Act, relative to the common law tort of civil conspiracy. Section 36(1) is neither duplicative of the tort of civil conspiracy nor does it provide a "new and superior" remedy. Claims under s. 36(1) are subject to the limitation period stated in s. 36(4), whereas the tort of civil conspiracy is subject to provincial limitation periods. Similarly, both actions allow for the recovery of costs, and while s. 36(1) does not provide for double or treble damages (unlike the American civil regime under the Clayton Act, 15 U.S.C. § 15), it does allow for awards of costs of investigation.

[88] Nor does s. 36(1) represent a comprehensive and exclusive code regarding claims for anti-competitive conspiratorial conduct. That this is so is made plain by s. 62 of the Competition Act ("Civil rights not affected") which contemplates the subsistence of common law and equitable rights of action by providing that "nothing in this Part [which includes s. 45(1), in respect of which s. 36(1)(a) allows recovery] affects any right or remedy that a person has under the law in force in a province."

[89] I therefore would reject this ground of appeal. The courts below correctly decided that it is not plain and obvious that Godfrey is precluded from bringing common law and equitable causes of action alongside his s. 36(1)(a) claim. Additionally, a breach of s. 45(1) of the Competition Act can supply the "unlawful" element of the tort of civil conspiracy.

D. Certifying Loss as a Common Issue

[90] Toshiba's final ground of appeal relates to the requirement in s. 4(1)(c) of the Class Proceedings Act that class members' claims raise common issues.

[91] Godfrey sought to certify several loss-related questions as common issues, principally whether the class members suffered economic loss. These questions were stated broadly enough that they could be taken as asking whether all class members suffered economic loss or whether any class members suffered economic loss. And, because they could be taken in two different directions, Toshiba argued that the questions were not capable of being answered on a class-wide basis.

[92] The certification judge certified the common issues relating to loss on the basis that the standard outlined in Microsoft requires that a plaintiff's expert methodology need only establish loss at the indirect-purchaser level. The questions, therefore, of whether any class members suffered loss and of whether all class members suffered loss, fulfilled the standard.

[93] Godfrey responds that the courts below correctly held that Microsoft requires, as a condition of certifying loss as a common issue, only a methodology capable of establishing that overcharges were passed on to the indirect-purchaser level. This standard is consistent with the principles underlying the commonality requirement, since a single answer to whether loss reached the indirect purchaser level will either advance (common failure) or terminate (common success) the litigation.

[94] The appropriate standard for certifying loss as a common issue at the certification stage is a question of law, to be reviewed on appeal for correctness. If I conclude that the certification judge identified the correct standard, then the certification judge's decision to certify the issues as common may not be disturbed absent a palpable and overriding error.

(1) Dr. Reutter's Methodology

[95] Application of the Microsoft standard here requires some review of Dr. Reutter's report. In that report, he drew two conclusions:

(1) . . . all members of the proposed Class would have been impacted by the actions of defendants as alleged in the Amended Notice of Civil Claim, and

(2) . . . there are accepted methods available to estimate any overcharge and aggregate damages that resulted from the alleged wrongdoing using evidence common to the proposed Class.

(A.R., vol. III, at p. 119)

[96] These conclusions were based on the presence of four economic factors during the period of the alleged conspiracy that suggest that the ODD industry was vulnerable to collusive conduct. These factors are:

(1) [ODDs] are commodity-like and manufactured to conform to industry standards,

(2) during the proposed Class period [the] defendants accounted for a majority of all [ODDs] manufactured worldwide,

(3) there are no economic substitutes for [ODDs], and;

(4) the manufacture of [ODDs] exhibits barriers to entry.

(A.R., vol. III, at pp. 119-20)

Because of the presence of these four factors, and the laws of supply and demand, Dr. Reutter concluded that "any conspiratorial overcharge would have been absorbed in part and passed-through in part at each level of the distribution chain, thus impacting all members of the proposed Class".

[97] In order to estimate overcharges and aggregate damages arising from the alleged price-fixing, Dr. Reutter developed a methodology to estimate the "but-for" price of the products subject to the anticompetitive conduct. This involves use of mainstream and accepted economic methodologies based on multiple regression. In particular, it involves three steps:

First, for the matter at hand, an economic model describing the interaction of the supply of and demand for [ODDs] must be developed. Second, based on the economic model, data will need to be collected from various sources, including defendants (when available), as well as public and third party vendors. Third, standard statistical and econometric techniques are used to determine the extent to which any overcharge established for direct purchasers was passed on to indirect purchasers.

(A.R., vol. III, at p. 150)

[98] In order to quantify the aggregate damages suffered by the proposed class, Dr. Reutter proposes to quantify the damages suffered by direct and indirect purchasers in the proposed class, which quantification can occur on a class-wide basis, using accepted economic and statistical methods. Overcharge, once estimated, can then be allocated among the class members using aggregate damages provisions.

[99] The question of whether a plaintiff's methodology must show loss at the indirect purchaser level or loss to each and every class member appears to be moot, since Dr. Reutter opines that all class members were impacted by Toshiba's anti-competitive behaviour; his methodology therefore satisfies either standard. Toshiba, however, points to its cross-examination of Dr. Reutter at the certification hearing, which it says shows that Dr. Reutter's opinion on this point is not reliable.

[100] After confirming that Dr. Reutter would use an average selling price across the ODD market to estimate overcharge, the following exchange took place:

399 Q. And implicit in the average is the fact that some class members may not have suffered any loss, but they would be compensated by the amount of the average overcharge in relation to the purchase that they made?

A. It's an empirical question and I don't want to sound flippant, but it depends. There may be some — there may be some small subset or subset, I don't want to put an adjective in front of it. There may be some subset that were not impacted. I don't, from an economic standpoint, understand how that would be if there was, in fact, a conspiracy that fixed the price at the upstream and then that was passed through.

403 Q. . . . But if you conclude that some members were not impacted once you do the analysis, then they would be compensated even though they suffered no loss?

A. Again, it depends on how finely or where we want to draw the line of what we're analyzing or what we're measuring.

A. Someone could — the average is an average and if you want to throw a zero in there, as Dr. Levinsohn does, and say that there could be zero damages, I can't deny that, you know, if you average zero with some other numbers you get something other than zero by the definition of mathematics.

407 Q. . . . Does the methodology which produces an average, is that average overcharge then applied to all class members irrespective of whether the average reflects the overage that they, in fact, incurred?

A. Yes.

408 Q. All right. And is there anything in the methodology that you are proposing that allows one to determine who those people are that suffered more or less? They're simply compensated on average?

410 . . .

A. In identifying him, no. [Emphasis added.]

(A.R., vol. V, at pp. 216-19)

Dr. Reutter went on to explain that his methodology is capable of creating subgroups within the class. For example, if the evidence after discovery suggests that Toshiba stopped price-fixing for a few months and then resumed again, the class members who purchased ODDs during that time would be excluded from the model.

[101] It is not at all apparent that this exchange shows Dr. Reutter resiling from his opinion that all class members would be impacted. On the contrary, he stated that he did not understand, from an economic standpoint, how it would be possible for some members of the class not to have suffered a loss if there was a conspiracy and the fixed price was passed through. Dr. Reutter's methodology therefore satisfies either standard.

[102] In any event, even were Dr. Reutter's methodology incapable of showing loss to every class member, as I explain below, it is not necessary, in order to support certifying loss as a common question, that a plaintiff's expert's methodology establish that each and every class member suffered a loss. Nor is it necessary that Dr. Reutter's methodology be able to identify those class members who suffered no loss.

(2) What Is the Standard Required to Certify Loss as a Common Issue?

[103] The Class Proceedings Act provides that in order for an issue to be common, the issue need not "predominate over issues affecting only individual members" (s. 4(1)(c)). Section 1 of the Class Proceedings Act defines "common issues" as meaning:

(a) common but not necessarily identical issues of fact, or

(b) common but not necessarily identical issues of law that arise from common but not necessarily identical facts

[104] In Microsoft, at para. 108, this Court reaffirmed the principles of "common issues" for the purpose of certification, as they were explained in Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534:

In [Dutton] this Court addressed the commonality question, stating that "[t]he underlying question is whether allowing the suit to proceed as a [class proceeding] will avoid duplication of fact-finding or legal analysis" (para. 39). I list the balance of McLachlin C.J.'s instructions, found at paras. 39-40 of that decision:

(1) The commonality question should be approached purposively.

(2) An issue will be "common" only where its resolution is necessary to the resolution of each class member's claim.

(3) It is not essential that the class members be identically situated vis-à-vis the opposing party.

(4) It [is] not necessary that common issues predominate over non-common issues. However, the class members' claims must share a substantial common ingredient to justify a class [proceeding]. The court will examine the significance of the common issues in relation to individual issues.

(5) Success for one class member must mean success for all. All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent.

[105] In Vivendi Canada Inc. v. Dell'Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3, this Court clarified that the "common success" requirement in Dutton should be applied flexibly. "Common success" denotes not that success for one class member must mean success for all, but rather that success for one class member must not mean failure for another (para. 45). A question is considered "common", then, "if it can serve to advance the resolution of every class member's claim", even if the answer to the question, while positive, will vary among those members (para. 46).

[106] In Microsoft, the representative plaintiff sought to certify a class proceeding wherein the proposed class members consisted of the end consumers of products whose prices were allegedly fixed ("indirect purchasers"). After concluding that indirect purchasers have a cause of action for price-fixing, the Court considered the standard of expert methodology required to certify loss-related questions as common issues for indirect purchaser class proceedings. The key passage from the Court's reasons states:

One area in which difficulty is encountered in indirect purchaser actions is in assessing the commonality of the harm or loss-related issues. In order to determine if the loss-related issues meet the "some basis in fact" standard, some assurance is required that the questions are capable of resolution on a common basis. In indirect purchaser actions, plaintiffs generally seek to satisfy this requirement through the use of expert evidence in the form of economic models and methodologies.

The role of the expert methodology is to establish that the overcharge was passed on to the indirect purchasers, making the issue common to the class as a whole. The requirement at the certification stage is not that the methodology quantify the damages in question; rather, the critical element that the expert must address is whether there is a method by which the common issue of loss can be proven on a class-wide basis.

The most contentious question involving the use of expert evidence is how strong the evidence must be at the certification stage to satisfy the court that there is a method by which impact can be proved on a class-wide basis. The B.C.C.A. in Infineon called for the plaintiff to show "only a credible or plausible methodology".

In my view, the expert methodology must be sufficiently credible or plausible to establish some basis in fact for the commonality requirement. This means that the methodology must offer a realistic prospect of establishing loss on a class-wide basis so that, if the overcharge is eventually established at the trial of the common issues, there is a means by which to demonstrate that it is common to all class members.

(Microsoft, at paras. 118-20)

[107] While there may be some room for debate arising from the references to "class-wide basis" in the above passages, in my view, the Court was employing the term "class-wide basis" synonymously with "indirect-purchaser level". Microsoft, therefore, directs that, for a court to certify loss-related questions as common issues in a price-fixing class proceeding, it must be satisfied that the plaintiff's expert's methodology is sufficiently credible or plausible to establish that the overcharge was passed on to the indirect-purchaser level, making the issue common to the class as a whole.

[108] Additionally, showing that loss reached the indirect purchaser level satisfies the criteria for certifying a common issue, since it will significantly advance the litigation, is a prerequisite to imposing liability upon Toshiba and will result in "common success" as explained in Vivendi, given that success for one class member will not result in failure for another. Showing loss reached the indirect purchaser level satisfies the "some basis in fact" standard for certifying a common issue, without requiring proof that every class member suffered a loss.

[109] When thinking about whether a proposed common question would "advance the litigation", it is the perspective of the litigation, not the plaintiff, that matters. A common issues trial has the potential to either determine liability or terminate the litigation. Either scenario "advances" the litigation toward resolution. As this Court recognized in Microsoft, at para. 139:

Thus, for the purposes of certification, the methodology about the existence of loss need only be shown to be a plausible one that the passing-on reached the indirect purchaser level of the distribution channel and that there might be individual issues about whether any particular class member experienced illegal price-fixing. If the plaintiff's expert's methodology failed in proof at trial, then this would dispose of the common issue and the litigation would be resolved by a finding that the defendants are not liable to the class.

(3) Does Dr. Reutter's Methodology Meet the Standard?

[110] The certification judge identified the correct standard to certify commonality of loss as a common issue. As Toshiba acknowledges, the issue of whether the certification judge erred in applying that standard to Dr. Reutter's evidence is "subject to . . . deference from an appellate court". The certification judge's analysis of Dr. Reutter's methodology as supporting certification of the loss-related common issues was entirely consistent with Microsoft.

[111] I agree with the Court of Appeal that the reasoning of the certification judge reveals no basis for interfering with his common issues determination. There is no palpable and overriding error in the certification judge's conclusion that Godfrey showed some basis in fact for finding the loss issues to be common. I would therefore dismiss this ground of appeal.

(4) Availability of Aggregate Damages

[112] I turn, finally, to Toshiba's final argument, which goes to the availability of the aggregate damages provisions found in Division 2 of the Class Proceedings Act, s. 29(1)(b), which states:

Aggregate awards of monetary relief

29 (1) The court may make an order for an aggregate monetary award in respect of all or any part of a defendant's liability to class members and may give judgment accordingly if

(b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant's monetary liability . . .

[113] Because all other issues of fact and law must be decided before the aggregate damages provisions could apply, it is plain that aggregate damages under s. 29(1)(b) are purely remedial, available only after all other common issues have been determined, including liability (see Microsoft, at para. 134). Irrespective, then, of whether aggregate damages are certified as a common issue, it is plain that they are available only after liability is established.

[114] Here, the certification judge certified the following common issues related to aggregate damages for the non-umbrella purchasers:

(k) Can the amount of damages be determined on an aggregate basis and if so, in what amount?

(w) Can the amount of restitution be determined on an aggregate basis and if so, in what amount?

As I will explain below, I would not disturb the certification judge's decision to certify these issues as common issues.

[115] Toshiba has not appealed the certification of these issues as common issues. Rather, it takes issue with the certification judge's statement when discussing certification of the loss-related common issues that "the aggregate damage provisions [. . .] allow for an aggregate award even where some class members have suffered no financial loss". Toshiba argues that this statement is inaccurate and that, if accepted by a trial judge, could lead to class members who suffered no loss being awarded compensation from the aggregate damages fund.

[116] On this point, I agree with Toshiba that the certification judge's statement that the aggregate damages provisions allow for an award of damages for class members that suffered no loss is inconsistent with this Court's jurisprudence. This Court has repeatedly affirmed that the advantages conferred by class proceeding legislation are purely procedural, and that they do not confer substantive rights. As Feldman J.A. (for a unanimous court) explained in 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp., 2010 ONCA 466, 100 O.R. (3d) 721 (Ont. C.A.):

With respect, I do not agree with this reasoning. The aggregate damages provisions of the CPA relate to remedy and are procedural. They cannot be used to establish liability. The language of s. 29(1)(b) specifies that no question of fact or law, other than the assessment of damages, should remain before the aggregate damages can be awarded. If loss is an element of the cause of action, then it must be established by each class member before they can share in an aggregate damages award.

(para. 55)

I agree with Feldman J.A.'s holding in Chadha that aggregate damages provisions are "applicable only once liability has been established, and provid[e] a method to assess the quantum of damages on a global basis, but not the fact of damage" (para. 49). I also agree with Masuhara J. of the B.C.S.C. in Infineon that "liability requires that a pass-through reached the Class Members", and that "[t]hat is a matter of proof at trial".

[117] The foregoing signifies that, where (as here) loss is an element of the cause of action, using the aggregate damages provisions to distribute damages to class members who did not suffer a loss would be inconsistent with the purely procedural quality of the advantages conferred by the Class Proceedings Act. It follows that the reliance by the courts below on the aggregate damages provisions to support the conclusion that it would not matter if some class members suffered no loss is mistaken.

[118] To be clear, I agree that the Class Proceedings Act permits individual members of the class to obtain a remedy where it may be difficult to demonstrate the extent of individual loss. What the jurisprudence of this Court maintains, however, is that, in order for individual class members to participate in the award of damages, the trial judge must be satisfied that each has actually suffered a loss.

[119] At this stage, it therefore remains possible that issues will arise, once it is determined that loss reached the indirect purchaser level, that affect individual class members' claims (Microsoft, at para. 140). In other words, while it was sufficient for the purposes of certifying loss as a common issue for Dr. Reutter's methodology to show merely that loss reached the indirect purchaser level, this does not mean that the aggregate damages provisions can then be used to distribute damages to those who suffered no loss.

[120] It should be borne in mind that the trial judge, following the common issues trial, might reach any one of numerous possible conclusions on the question of whether the class members suffered loss. For example, the trial judge might accept Dr. Reutter's evidence that all class members suffered a loss, in which case it would be open to the trial judge to use the aggregate damages provisions to simplify the damages assessment and then distribute those damages to all class members. But even then, the aggregate damages provisions may not be used to compensate class members who suffered no loss.

[121] But again, to be clear — neither the range of possible findings of the trial judge following the common issues trial, nor the unavailability of aggregate damages for class members that suffered no loss, is relevant to the decision to certify aggregate damages as a common issue. As was the case in Microsoft, "[t]he aggregate damages questions [the certification judge] certified relate solely to the aggregate quantum of monetary relief, not to issues of liability or loss" (para. 134).

VI. Conclusion

[122] I would dismiss the appeals.

[123] Section 37(1) of the Class Proceedings Act provides that "neither the [British Columbia] Supreme Court nor the Court of Appeal may award costs to any party to an application for certification". The parties appear to take this as precluding this Court from awarding costs at those courts, and seek only their costs at this Court. I would therefore award Godfrey costs in this Court only.

Reasons Dissenting in Part

The following are the reasons delivered by

Côté J. —

I. Overview

[124] These appeals raise a fundamental question: are courts at a stage where the balance struck by Parliament in Canada's competition law should be upset by applying new principles of liability for price-fixing cases, resulting in near-automatic certification of class actions? In doing so, are courts going a bridge too far?

[125] These appeals concern the certification of a proposed class action brought in British Columbia by representative plaintiff Neil Godfrey (the "Plaintiff", respondent in these appeals) against a number of defendants (the "Defendants", appellants in these appeals) that manufacture or supply devices known as optical disc drives ("ODDs"). The Plaintiff alleges that the Defendants conspired to fix prices of ODDs and ODD products between January 1, 2004 and January 1, 2010.

[126] The proposed class is essentially comprised of three groups. Direct purchasers are the class members who purchased an ODD or an ODD product manufactured or supplied by a Defendant from that Defendant. Indirect purchasers are the class members who purchased an ODD or an ODD product manufactured or supplied by a Defendant from a non-Defendant. Neil Godfrey is one of those indirect purchasers. Umbrella purchasers are the class members who purchased an ODD or an ODD product manufactured or supplied by a non-Defendant company (the "Umbrella Purchasers").

[127] The Plaintiff's action against most of the Defendants was commenced on September 27, 2010. He brought a separate action against certain additional Defendants — Pioneer Corporation, Pioneer North America, Inc., Pioneer Electronics (USA) Inc., Pioneer High Fidelity Taiwan Co., Ltd. and Pioneer Electronics of Canada Inc. (the "Pioneer Defendants") — on August 16, 2013, roughly three and a half years after the end of the Class Period.

[128] At the certification stage, Masuhara J. (the "Certification Judge") consolidated the two actions and conditionally certified them as class proceedings, in accordance with the criteria set out in s. 4(1) of British Columbia's Class Proceedings Act, R.S.B.C. 1996, c. 50 (2016 BCSC 844). The Defendants' appeals to the British Columbia Court of Appeal were unanimously dismissed (2017 BCCA 302).

[129] The Defendants that challenge the Court of Appeal's order before this Court in file no. 37810 (the "Toshiba Appeal") contend that both the Certification Judge and the Court of Appeal erred in three respects: (a) by permitting the Umbrella Purchasers to claim under the statutory cause of action in s. 36(1) of the Competition Act; (b) by allowing common law and equitable relief based on a breach of s. 45 of the Competition Act to proceed alongside the statutory cause of action in s. 36(1); and (c) by using an incorrect standard to certify the loss-related questions as common issues for trial.

[130] The appeal brought by the Pioneer Defendants in file no. 37809 (the "Pioneer Appeal") raises those same issues, as well as two unique issues pertaining to the treatment of the limitation defence by the courts below. The Pioneer Defendants argue that the Certification Judge erred in holding that the action against them can proceed — notwithstanding that it was commenced more than two years after the end of the Class Period — because neither the discoverability rule nor the doctrine of fraudulent concealment can toll the limitation period in s. 36(4)(a)(i).

[131] I would allow both appeals in part. With respect to the limitations issues raised in the Pioneer Appeal, my view is that the discoverability rule does not apply to the limitation period in s. 36(4)(a)(i) because the event that triggers the commencement of the limitation period occurs without regard to the state of a plaintiff's knowledge. As for the doctrine of fraudulent concealment, my view — which is in accord with that of my colleague Brown J. — is that a special relationship between the parties is not always a prerequisite or a necessary element for the application of the doctrine of fraudulent concealment. I would accordingly dismiss the Pioneer Appeal with respect to the fraudulent concealment question.

[132] With respect to the issues raised in the Toshiba Appeal, which are common to both appeals, I agree with my colleague Brown J. — although for different reasons — that the Competition Act does not prevent a plaintiff from advancing a claim at common law or in equity together with, or instead of, the statutory claim under s. 36(1) in respect of the same anti-competitive conduct. I would accordingly dismiss that issue in both appeals. However, I respectfully disagree with my colleague that the Umbrella Purchasers have a cause of action under s. 36(1) of the Competition Act, and that the standard applicable to certifying loss-related questions as common issues was correctly applied in this case.

II. The Pioneer Appeal

[133] The two unique issues raised in the Pioneer Appeal are as follows:

• (a) Does the discoverability rule apply to the limitation period established by s. 36(4)(a)(i) of the Competition Act?
• (b) Must there be a special relationship between the parties to an action in order for the doctrine of fraudulent concealment to toll the limitation period?

[134] The statutory cause of action under s. 36(1)(a) of the Competition Act, which allows a claimant to recover for loss or damage resulting from conduct contrary to any provision of Part VI of that Act, is subject to the limitation period established by s. 36(4). These two provisions read as follows:

36 (1) Any person who has suffered loss or damage as a result of

(a) conduct that is contrary to any provision of Part VI, or

(b) the failure of any person to comply with an order of the Tribunal or another court under this Act,

may, in any court of competent jurisdiction, sue for and recover from the person who engaged in the conduct or failed to comply with the order an amount equal to the loss or damage proved to have been suffered by him, together with any additional amount that the court may allow not exceeding the full cost to him of any investigation in connection with the matter and of proceedings under this section.

(4) No action may be brought under subsection (1),

(a) in the case of an action based on conduct that is contrary to any provision of Part VI, after two years from

(i) a day on which the conduct was engaged in, or

(ii) the day on which any criminal proceedings relating thereto were finally disposed of,

whichever is the later . . .

[135] The Plaintiff's action against the Pioneer Defendants, which is based in part on s. 36(1) of the Competition Act, was commenced on August 16, 2013 — more than two years following the end of the Class Period, which is the period during which the alleged price-fixing conspiracy took place. The Pioneer Defendants take the position that the Plaintiff's claim for recovery under s. 36(1) of the Competition Act is therefore barred by the limitation period in s. 36(4)(a)(i).

[136] In order to succeed, therefore, the Pioneer Defendants must persuade this Court that neither the discoverability rule nor the doctrine of fraudulent concealment has any application in this case.

A. Does the Discoverability Rule Apply to the Limitation Period Contained in the Statutory Cause of Action in Section 36 of the Competition Act?

[137] On this first limitations issue raised in the Pioneer Appeal, my colleague takes the view that the discoverability rule postpones the commencement of the limitation period in s. 36(4)(a)(i) until the time at which the potential claimant discovers, or is reasonably capable of discovering, the existence of the impugned conduct that forms the basis of a claim under s. 36(1). I respectfully disagree.

[138] Limitation clauses are statutory provisions that place temporal limits on a claimant's ability to institute legal proceedings. The expiry of a limitation period has the effect of "extinguish[ing] a party's legal remedies and also, in some cases, a party's legal rights" (G. Mew, D. Rolph and D. Zacks, The Law of Limitations (3rd ed. 2016), at p. 3). As this Court explained in M. (K.), the three purposes underlying limitation periods are: "the certainty and security of legal obligations"; encouraging diligence in the assertion of claims; and protecting against stale evidence.

[139] As statutory provisions, limitation clauses give rise to a number of interpretative issues. One important issue is the point at which the limitation period begins running — and in particular, whether the legislature intended that it commence only when the plaintiff has knowledge that the event which sets the clock ticking (sometimes referred to as the "triggering event") has in fact occurred.

[140] Discoverability is a judge-made rule of statutory interpretation that assists in determining whether the event triggering the commencement of a limitation period depends upon the state of the plaintiff's knowledge. In Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147, this Court recognized a "general rule that a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence" (p. 224).

[141] This Court expanded upon the principles applicable to the discoverability rule in Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549. In that case, Major J. clarified that discoverability is not a general rule that applies despite the wording of a legislative enactment, but rather an "interpretive tool for the construing of limitations statutes which ought to be considered in light of the particular wording of the clause in question" (para. 37). In the same decision, Major J. adopted the following passage from Fehr v. Jacob (1993), 1993 CanLII 4407 (MB CA), 14 C.C.L.T. (2d) 200 (Man. C.A.):

[142] The limitation period in Peixeiro ran for two years from the time when "damages were sustained" by the plaintiff (para. 2). Applying the test in Fehr, Major J. found it "unlikely that by using the words 'damages were sustained', the legislature intended that the determination of the starting point of the limitation period should take place without regard to the injured party's knowledge" (para. 38). The discoverability rule therefore applied.

[143] A different conclusion was reached by this Court on the facts in Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53. That dispute turned, in part, on the interpretation of a limitation period that "prohibits an action brought six months after letters of probate or administration of the estate of the deceased have been granted, and after the expiration of one year from the date of death" (para. 4). The Court reasoned that the legislature had clearly indicated, by choosing the fact of death as the triggering event, that the discoverability rule did not apply.

[144] The Plaintiff in the instant case agrees that Fehr sets out the test for whether a limitation period is subject to the discoverability rule, and my colleague affirms this approach at paras. 31-35 of his reasons. However, he goes on to opine that "where the event triggering the limitation period is an element of the cause of action, the legislature has shown its intention that the limitation period be linked to the cause of action's accrual, such that discoverability will apply" (para. 38). I respectfully disagree with this approach.

[145] Although this approach accords with the view expressed by the British Columbia Court of Appeal in this case, as well as by the Ontario Court of Appeal in Fanshawe College of Applied Arts and Technology v. AU Optronics Corp., 2016 ONCA 621, 132 O.R. (3d) 81, at paras. 40, 43 and 45, my respectful view is that it expands the scope of the discoverability rule in a manner that is inconsistent with this Court's jurisprudence.

[146] First, the suggestion that discoverability applies in all cases where the triggering event is "the occurrence of an element of the underlying cause of action" broadens the test set out by the Manitoba Court of Appeal in Fehr — a test which my colleague purports to endorse. In that case, Twaddle J.A. was very clear in explaining that the discoverability rule applies only where the limitation period runs from the accrual of a cause of action or from an event that depends upon the state of the plaintiff's knowledge. The suggestion that every triggering event that "is related to" or "constitutes an element of" the plaintiff's cause of action falls within this category is simply not supported by the test as originally formulated.

[147] Not only did this Court endorse Fehr in both Peixeiro and Ryan, but both appeals were resolved on a fairly straightforward application of this approach to discoverability. In Peixeiro, this Court reasoned that the limitation period — which commenced when "damages were sustained" — fell within the first category outlined in Fehr (to which the discoverability rule applies), given that this language was construed as referring to the accrual of the cause of action.

[148] It is true that this Court in Ryan stated that the discoverability rule does not apply where the limitation period "is explicitly linked by the governing legislation to a fixed event unrelated to the injured party's knowledge or the basis of the cause of action" (para. 24 (emphasis added)). The Court of Appeal in the present case characterized this as an "unequivocal statement . . . that the discoverability principle applies unless the triggering event is unrelated to the cause of action". I do not read it that way. Rather, the words "basis of the cause of action" in para. 24 of Ryan should be understood as essentially synonymous with the "arising or accrual of the cause of action". The rule as stated in Fehr and endorsed in Peixeiro and Ryan can be paraphrased as follows: the discoverability rule applies where the limitation period runs from the occurrence of an event that is essentially synonymous with the accrual or arising of the cause of action — that is, an event that is inextricably tied to the state of the plaintiff's knowledge.

[149] In any event, principle also commands that the discoverability rule apply only where the limitation period runs from the "accrual of the cause of action" (or wording to that effect) or from the occurrence of some event that is related to the state of the plaintiff's knowledge. This is because discoverability is nothing more than a tool of statutory interpretation. Where a legislature provides that a limitation period commences upon the occurrence of a specific event, the court must be guided by the legislature's choice of words.

[150] Limitation periods that begin running upon the accrual of the plaintiff's cause of action evidently fall within the first category outlined in the preceding paragraph. Mew et al. note that a cause of action arises only "when all of the elements of a wrong existed, such that an action could be brought" (p. 69), and conversely, that "no cause of action can be said to have accrued unless there has been loss" (p. 70). Because a cause of action requires the plaintiff's loss, it follows logically that a limitation period that begins running upon the accrual of a cause of action can only commence once the plaintiff has suffered a loss. And since a plaintiff cannot suffer a loss without some awareness of the circumstances giving rise to that loss, a limitation period that runs from the accrual of a cause of action is necessarily conditioned upon the plaintiff's knowledge, at least to some degree. As such, the discoverability rule applies.

[151] Conversely, "the occurrence of an element of the underlying cause of action" will not always fit within either category outlined above. It may be that the occurrence of such an event does in fact depend on the state of the plaintiff's knowledge, but unlike the accrual of a cause of action, this does not invariably follow as a matter of logical necessity.

[152] It is for this reason that I disagree in principle with the proposition that the discoverability rule must always apply where the triggering event "is related to", "is linked to the basis of" or "constitutes an element of" the plaintiff's cause of action. My position is instead consistent with that stated by Marshall J.A. of the Newfoundland Court of Appeal in Snow v. Kashyap (1995), 1995 CanLII 9744 (NL CA), 125 Nfld. & P.E.I.R. 246, at p. 252:

[153] With this in mind, I am respectfully of the view that my colleague's approach is undermined by the well-settled principle that the discoverability rule is fundamentally a rule of statutory interpretation. The fact that a limitation period begins running upon the occurrence of an element (and not upon the accrual or arising) of the plaintiff's cause of action is not, on its own, indicative of legislative intent that the discoverability rule should apply. Rather, courts must go a step further and consider the nature of the triggering event to determine whether it is one that is explicitly conditioned upon the plaintiff's knowledge.

[154] A preferable approach is instead one that considers each statutory limitation clause on its own terms, recognizing that a triggering event that relates to a cause of action can, but need not, be dependent upon the plaintiff's state of mind. This approach is faithful to this Court's jurisprudence, and respectful of the notion of discoverability as an interpretative tool and not a general rule of law.

[155] Given the foregoing, it is no surprise that I disagree with my colleague that the discoverability rule applies to the limitation period in s. 36(4)(a)(i) of the Competition Act on the basis that "the event triggering this particular limitation period is an element of the underlying cause of action". Rather, the conclusion that results from applying the law as I understand it is that the discoverability rule does not apply to the limitation period in s. 36(4)(a)(i).

[156] Section 36 of the Competition Act was "carefully constructed" to create a limited cause of action in respect of serious criminal offences under Part VI of the Competition Act (General Motors of Canada Ltd. v. City National Leasing, 1989 CanLII 133 (SCC), [1989] 1 S.C.R. 641, at p. 689). For example, Parliament limited recovery to an amount "equal to the loss or damage proved to have been suffered" by the claimant; it did not provide for double or treble damages as Congress did in the United States under § 4 of the Clayton Act.

[157] The wording of the limitation period set out in s. 36(4)(a)(i) provides ample support for the proposition that the two-year period commences independently of when the plaintiff first learns of the wrongdoing. Rather than having the limitation period commence upon the accrual of the cause of action (as was the case in Central Trust and M. (K.)), Parliament decided that it would instead commence on "a day on which the conduct was engaged in". This event — the occurrence of the conduct contrary to Part VI — clearly occurs without regard to the state of the plaintiff's knowledge. The fact that a plaintiff seeking to bring an action under s. 36(1) must also establish that the defendant engaged in conduct contrary to Part VI does not affect this conclusion.

[158] I acknowledge that the "discoverability rule has been applied by this Court even to statutes of limitation in which plain construction of the language used would appear to exclude the operation of the rule" (Peixeiro, at para. 38). However, a consideration of the context surrounding s. 36(4)(a)(i) lends further support to the conclusion that the discoverability rule does not apply.

[159] First, the cause of action in s. 36(1)(a) is based on two essential elements: (i) the defendant engaging in conduct contrary to any provision of Part VI, and (ii) the plaintiff suffering loss or damage as a result of such conduct. It is only upon the occurrence of both events that the plaintiff can commence proceedings on the basis of this statutory cause of action. Cognizant of this, and contrary to what my colleague suggests, Parliament chose to link the limitation period not to the second element (i.e., the loss or damage, which is inherently connected to the plaintiff's knowledge) but to the first element (i.e., the conduct contrary to Part VI, which may occur independently of the plaintiff's knowledge).

[160] Second, s. 36(4)(a)(ii) provides a mechanism for the plaintiff to advance a claim that may be barred by s. 36(4)(a)(i): even if two years have expired from the day on which the prohibited conduct was engaged in, the limitation period will restart on the day on which criminal proceedings relating to the impugned conduct are finally disposed of. While s. 36(4)(a)(ii) applies only where the authorities decide to prosecute the alleged anti-competitive conduct criminally, it would come to the rescue of many plaintiffs in this situation, since the criminally prosecuted cartel members would typically be the same parties against whom a plaintiff would wish to advance a civil claim under s. 36(1) of the Competition Act.

[161] Third, and unlike claims subject to the general limitation period in British Columbia's Limitation Act, S.B.C. 2012, c. 13, s. 21, Parliament has not subjected claims under s. 36(1)(a) to any ultimate limitation period. Interpreting s. 36(4)(a)(i) as commencing only when the underlying conduct becomes discoverable will therefore have the effect of leaving defendants at risk of lawsuit indefinitely, since there is no end date beyond which they can be certain of their freedom from liability.

[162] Fourth, the two-year limitation period was enacted by Parliament at a time when limitation periods were comparatively much longer. For example, the provincial limitations statutes that were in force at the time in Ontario and British Columbia set out a general limitation period of six years. The enactment of a two-year limitation period in the Competition Act thus reflects a deliberate and balanced legislative choice to provide for a relatively short limitation period, and cannot be read as impliedly incorporating the discoverability rule.

[163] The statutory provision at issue here is therefore akin to s. 138.14 of Ontario's Securities Act, R.S.O. 1990, c. S.5, which this Court recently considered in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R. 801; because there is no suspension mechanism built into that statutory limitation clause, "the limitation period begins to run regardless of knowledge on the day of the first alleged misrepresentation" (para. 105).

[164] On a different note, I am not persuaded that a short limitation period, to which the discoverability rule does not apply, will defeat the purpose for which Parliament enacted s. 36 and the rest of the Competition Act. Civil liability under s. 36 is not the exclusive means by which persons are held to account for anti-competitive conduct: the statute also provides for a variety of penal and administrative consequences.

[165] As a result, I disagree with my colleague that the limitation period in s. 36(4)(a)(i) begins to run on the date that the conduct contrary to Part VI is either discovered or discoverable by the plaintiff. Properly interpreted, the triggering event in this statutory provision "clearly occurs without regard to the injured party's knowledge", and the provision does not contain "wording to [the] effect" that the limitation period runs from the accrual of the cause of action. To the contrary, Parliament deliberately chose to identify the occurrence of the wrongful act as the event that starts the clock, independently of the plaintiff's knowledge.

[166] The fraudulent concealment doctrine is a doctrine that operates to prevent a limitation clause from being used as an instrument of injustice in circumstances where a defendant conceals the facts giving rise to a potential cause of action from a plaintiff. Because it would be unconscionable for that defendant to then rely on the limitation clause as a defence to the claim, equity "suspend[s] the limitation clock" until the plaintiff discovers the fraud (Performance Industries, at para. 44).

[167] The Pioneer Defendants, relying on Kitchen and the jurisprudence that followed, argue that the existence of a "special relationship" between the plaintiff and the defendant is a necessary precondition to the application of the doctrine of fraudulent concealment. Because such a relationship was not pleaded by the Plaintiff, they say that this doctrine cannot operate to toll the limitation period in this case.

[168] I would note that this Court has only ever considered the operation of fraudulent concealment in the context of a special relationship between the plaintiff and the defendant. This Court applied that doctrine in Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335, after Dickson J. (as he then was) found that the conduct of the Indian Affairs Branch of the federal government was fraudulent with respect to the Crown's fiduciary duty to the Musqueam Indian Band.

[169] That said, I am not prepared to go so far as to say that a special relationship — which I understand to be one that is based on trust and confidence — is always a prerequisite or a necessary element for the operation of the fraudulent concealment doctrine. In Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678, Binnie J. explained that fraudulent concealment is a form of "equitable fraud" that does not require the type of common law fraud defined by this Court in Derry v. Peek (1889), 14 App. Cas. 337 (H.L.).

[170] In effect, in the commercial context, limiting the application of the fraudulent concealment doctrine to only those situations where there is a special relationship between the parties presupposes that, in that context, there can be no injustice resulting from the application of a limitation period unless a special relationship exists. Put differently, insofar as there may be situations in a commercial context that are "tantamount to" the existence of a special relationship, it would be premature for this Court to close the door on the operation of the fraudulent concealment doctrine in such circumstances.

[171] Based on this understanding of fraudulent concealment, my view is that it is not plain and obvious that equity can intervene to toll the applicable limitation period only in cases where there exists a special relationship; it may be that it can also intervene in cases — at least in the commercial context, as here — where the plaintiff can demonstrate something commensurate with or tantamount to a special relationship between the plaintiff and the defendant, such that it would be unconscionable for the defendant to rely on the limitation clause as a defence.

[172] To be sure, the mere allegation of a price-fixing agreement among defendants is not sufficient on its own for the fraudulent concealment doctrine to toll the applicable limitation period. If it were, the limitation period for which Parliament specifically provided in s. 36(4) of the Competition Act would be meaningless in these circumstances, given the fact that price-fixing agreements are invariably kept secret.

[173] In the case at hand, the Plaintiff did not plead that there was a special relationship between the class members and the Pioneer Defendants. However, as I explained above, it is not plain and obvious that this is fatal to the Plaintiff's fraudulent concealment claim, since a special relationship may not be a necessary precondition to the application of the fraudulent concealment doctrine.

[174] The Plaintiff pleaded that the Pioneer Defendants "took active steps to, and did, conceal the unlawful conspiracy from their customers". Given that we are at the certification stage, I am prepared to conclude that it is not "plain and obvious" that the fraudulent concealment doctrine has no application in this case. Whether or not the Plaintiff will be able to prove fraudulent concealment at trial is a different matter altogether.

[175] On the basis of the foregoing, while the discoverability rule does not apply to toll the limitation period, it may be that the fraudulent concealment doctrine does, and, accordingly, I would dismiss the Pioneer Appeal regarding that question. However, there remain three more issues, common to all Defendants, and because the Pioneer Defendants have adopted the submissions of the Toshiba Defendants on these issues, I will consider them in the context of the Toshiba Appeal.

III. The Toshiba Appeal

[176] The issues in the Toshiba Appeal, which are common to both appeals, are threefold:

• (a) Is it plain and obvious that the Umbrella Purchasers' claims under s. 36(1)(a) of the Competition Act cannot succeed?
• (b) Can the plaintiff advance common law and equitable causes of action based on conduct that also forms the basis of a claim under s. 36(1) of the Competition Act?
• (c) What is the standard applicable to the certification of loss-related questions as common issues, and does the Plaintiff's proposed methodology satisfy that standard?

[177] I write separately because my views diverge from those of my colleague on all three of these issues. I will address each in turn.

A. Is it Plain and Obvious That the Umbrella Purchasers' Claims Under Section 36(1) of the Competition Act Cannot Succeed?

[178] The first issue in the Toshiba Appeal is whether the Certification Judge erred in holding that the Umbrella Purchasers can advance claims under s. 36(1) of the Competition Act against the Defendants. The Defendants submit that the Certification Judge did so err, and that upholding his conclusion on this point will have the effect of opening up "a potentially limitless scope of liability that would transcend the bounds of rationality".

[179] I agree with my colleague that resolving this issue requires an exercise in statutory interpretation, under which the words of the Competition Act are to "be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, citing Driedger, at p. 87).

[180] On its face, s. 36(1) appears to be worded broadly enough to capture claims by umbrella purchasers, so long as they can prove that they "suffered loss or damage as a result of" the conduct specified in para. (a) or (b). According to the Defendants, however, this statutory provision must be interpreted in a manner that is consistent with the principles that limit the extent of liability at common law, including the principles of indeterminacy and remoteness.

[181] Indeterminacy is a policy consideration that negates the imposition of a duty of care in negligence where it would expose the defendant to "liability in an indeterminate amount for an indeterminate time to an indeterminate class" (Ultramares Corp. v. Touche, 174 N.E. 441 (N.Y.C.A. 1931), at p. 444, per Cardozo C.J.). This concern arises where finding a duty of care between a plaintiff and defendant would open the "floodgates" of litigation and create a risk of endless, unpredictable liability.

[182] Although both indeterminacy and remoteness relate primarily to liability in negligence, I agree with the Defendants that the same underlying concerns can inform our analysis of the issue at hand, which involves claims under s. 36 of the Competition Act for pure economic losses. In Taylor v. 1103919 Alberta Ltd., 2015 ABCA 201, 602 A.R. 105, at para. 50, for example, the Alberta Court of Appeal applied the concept of proximity and policy considerations analogous to those underlying the indeterminacy principle to decide whether a type of economic loss was compensable under s. 36(1).

[183] Similarly, in Associated General Contractors v. Carpenters, 459 U.S. 519 (1983), the United States Supreme Court held that common law principles — including foreseeability and proximate cause, directness of injury, certainty of damages and privity of contract — can operate to limit the scope of a defendant's liability under the statutory cause of action for anti-competitive conduct in § 4 of the Clayton Act.

[184] The issue in the instant case turns on whether the Defendants can be held liable for loss or damage of an economic nature suffered by the Umbrella Purchasers, a group of claimants who bought from non-Defendants ODDs that were manufactured or supplied by non-Defendants. Can the Umbrella Purchasers recover as against the Defendants — companies with which they have no commercial relationship whatsoever — for economic losses that are attributable to pricing decisions made by companies that are not parties to the alleged price-fixing conspiracy? In my view, they cannot.

[185] This is consistent with the views expressed by Perell J. of the Ontario Superior Court of Justice in Shah v. LG Chem, Ltd., 2015 ONSC 6148, 390 D.L.R. (4th) 87, and by a unanimous Divisional Court in Shah v. LG Chem, Ltd., 2017 ONSC 2586, 413 D.L.R. (4th) 546. Shah involved the certification of a price-fixing class action brought by direct, indirect and umbrella purchasers of lithium-ion batteries. Both Perell J. and Nordheimer J. (as he then was) concluded that umbrella purchasers had no cause of action under s. 36(1) of the Competition Act.

[186] Both Perell J. and Nordheimer J. analogized the issue of liability to umbrella purchasers in Shah to the issue of indeterminacy that had arisen in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45. In that case, a number of tobacco companies were facing lawsuits relating to the sale of "light" or "mild" cigarettes. Those companies, in turn, brought third-party claims against Canada, alleging that Canada was liable for losses that flowed from Canada's involvement in the marketing of those cigarettes. This Court held that the claims should be struck because Canada owed no duty of care to the tobacco companies in this context.

[187] Although that case concerned indeterminacy in relation to the imposition of a duty of care in negligence, I agree with Nordheimer J. that "the fundamental principle is the same" (para. 32): s. 36(1) should not be interpreted in a manner that makes the Defendants liable to an indeterminate class of people for losses of an indeterminate nature that occurred as a result of business decisions made by companies that are not parties to the alleged conspiracy.

[188] The Ontario Divisional Court's decision in Shah was subsequently overturned by the Court of Appeal, for reasons substantially similar to those set out by my colleague (Shah v. LG Chem, Ltd., 2018 ONCA 819, 142 O.R. (3d) 721). The unanimous panel in that case took the position that "normative concerns about indeterminate liability" in negligence do not apply in the context of the statutory cause of action in s. 36(1), and that the broad wording of "any person" who has suffered loss "as a result of" conduct contrary to Part VI is sufficient to capture the claims of umbrella purchasers.

[189] In my respectful view, neither of those considerations actually protects against the risk of limitless liability that would flow from recognizing the availability of umbrella purchaser claims under s. 36(1). On the first point, the fact that the text of this provision reads as permitting recovery for any person capable of proving that their loss was sustained "as a result of" an alleged price-fixing conspiracy does not address the fundamental point that such loss is far too remote from the conspiratorial conduct for recovery under s. 36(1) to be appropriate.

[190] Before concluding, I will add one final thought. Permitting umbrella purchaser claims under s. 36(1) opens up the possibility of recovery for overcharges that result from "conscious parallelism" — a phenomenon which occurs when parties not involved in a price-fixing conspiracy deliberately choose to adjust their prices in order to match those of their competitors, in the absence of any actual agreement. Parties engaging in conscious parallelism do nothing contrary to the Competition Act, yet if s. 36(1) is interpreted to cover the claims of umbrella purchasers, they would effectively be exposed to civil liability for lawful conduct.

[191] All of this leads me to conclude that s. 36(1) of the Competition Act should not be interpreted in a manner that would permit claimants to recover from defendants for any losses that in some way flowed from the alleged conspiracy. Doing so would have the undesirable effect of exposing defendants to liability that is potentially limitless in scope for loss and damage that are too remote from the Defendants' impugned conduct to justify compensation under s. 36(1).

[192] In light of the principles to which I have referred above, my view is that the line should be drawn at loss and damage that flowed from the pricing decisions of the Defendants themselves (that is, the loss claimed by the direct and indirect purchasers), and not those that are attributable to third parties who did not participate in — but who nevertheless would have benefitted from — the alleged conspiracy. I would therefore allow this aspect of the appeal with respect to the claims of the Umbrella Purchasers under s. 36(1) of the Competition Act.

B. Common Law and Equitable Claims

[193] The second issue raised in the Toshiba Appeal turns on whether the cause of action in s. 36(1) of the Competition Act is the exclusive civil remedy for conduct that breaches the criminal offence provisions in Part VI of that statute. The Defendants argue that it is, and that allowing claims in respect of such conduct under common law and equitable causes of action undermines the principle of parliamentary supremacy.

[194] At its core, the issue under this heading is whether a claimant can rely on the common law and equity as a supplement to the right of action under s. 36(1) of the Competition Act — or put differently, whether a claimant can advance a common law or equitable cause of action instead of, or together with, the statutory cause of action in respect of the same allegation of anti-competitive conduct.

[195] In her leading textbook, Sullivan on the Construction of Statutes (6th ed. 2014), Professor Ruth Sullivan explains that "[t]he issue of supplementation arises when there is overlap between legislation and the common law such that both may apply to a particular set of facts and also when legislation is incomplete in that it says nothing of, or does not fully address, a matter relating to the facts."

[196] As with the Umbrella Purchasers issue, resolving this issue requires an exercise in statutory interpretation: it must be determined, based on a proper reading of the Competition Act, whether Parliament intended s. 36(1) to provide the exclusive civil remedy for persons claiming to have suffered loss or damage as a result of conduct contrary to Part VI.

[197] Like my colleague, I begin my analysis with the presumption against interpreting legislation in a manner that would interfere with common law rights. According to Professor Sullivan, such a presumption allows "the courts to insist on precise and explicit direction from the legislature before accepting any change", so as to shield the law "from inadvertent legislative encroachment" (p. 539).

[198] I agree with my colleague that the Competition Act does not expressly preclude claimants from supplementing the right of action in s. 36(1) with claims based on causes of action at common law or in equity. However, I am not convinced that the reasoning in Gendron applies to the case at hand; while that case dealt with a statutory provision that codified a common law right, s. 36 of the Competition Act created a novel statutory right of action and did not codify any pre-existing common law right.

[199] In my view, this provision evinces a legislative intention that the provisions of Part VI (which is titled "Offences in Relation to Competition") not abrogate any right of action a claimant has — which might include a right of action founded on the tort of unlawful means conspiracy or in unjust enrichment — that is predicated upon a breach of the offence provisions of the Competition Act.

[200] The fact that s. 62 applies only to Part VI of the Competition Act — and therefore is not directly applicable to s. 36(1), which is instead located in Part IV — is not, in my view, consequential. The cause of action created by s. 36(1)(a) is expressly tied to conduct that would constitute an offence under Part VI of the statute. This Court recognized in General Motors, at p. 673, that the civil enforcement powers of Part IV and the criminal enforcement provisions of Part VI "work together to promote competition in the economy."

[201] It is also essential to note that s. 62 uses the phrase "any civil right of action", which suggests that Parliament contemplated the preservation of the various civil rights of action that may exist in respect of conduct prohibited under Part VI, beyond the one provided for in s. 36(1). Indeed, the former provision would be redundant and pointless if it merely affirmed what the latter already provided for.

[202] Therefore, when I read the words of s. 62 "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament" (Driedger, at p. 87; Bell ExpressVu, at para. 26), I am led to the conclusion that this provision has the effect of preserving all civil rights of action that a claimant may have — over and above the right created by s. 36(1) — in respect of conduct that contravenes Part VI of the Competition Act.

[203] On the basis of this reasoning, I agree with the result reached by my colleague: the courts below did not err in permitting the Plaintiff to advance the pleaded common law and equitable causes of action together with the statutory cause of action under s. 36(1) in this case.

B. Common Issues — Loss-Related Questions

[204] The final issue on appeal relates to the requirement of common issues in s. 4(1)(c) of the Class Proceedings Act. What is it that the Plaintiff must be capable of establishing at the certification stage in order to provide the necessary assurance that his loss-related questions are capable of resolution on a common basis, and does his proposed methodology for establishing loss satisfy that standard?

[205] The existence of common issues among the individual class members lies at the very heart of a class proceeding. The procedural ability to aggregate these issues and to consider them at once, and for all class members, during a common issues trial is what alleviates the need for each class member to seek redress via separate actions.

For this reason, the determination of what constitute the common issues in any proposed class action is a key aspect of a certification motion.

[206] In his Proposed Litigation Plan, the Plaintiff submitted a number of questions for resolution on a common basis at trial, including questions that essentially relate to whether the class members suffered a loss in connection with the alleged price-fixing conspiracy.

[207] In order to satisfy the Certification Judge that these loss-related questions were capable of resolution on a common basis, the Plaintiff adduced evidence from an expert economist named Dr. Keith Reutter. In his expert report, Dr. Reutter took the position that "all members of the proposed Class would have been impacted" by the alleged price-fixing conspiracy and that "there are accepted methods available to estimate any overcharge and aggregate damages that resulted from the alleged wrongdoing using evidence common to the proposed Class".

[208] The suggestion that Dr. Reutter's methodology could establish that all class members would have been impacted by the alleged price-fixing conspiracy was called into question during his cross-examination, however. The Defendants therefore resisted certification of the loss-related questions, arguing that the Plaintiff's methodology could not address the issue of loss on a class-wide basis.

[209] For his part, the Plaintiff argued that, from a factual standpoint, his expert's methodology would be capable of establishing that all class members (including the indirect purchasers) had suffered a loss. As an alternative legal argument, he submitted that he was not required to demonstrate to the Certification Judge that, using his expert's methodology, he would be able to prove at trial that each and every class member suffered a loss. Rather, it was sufficient to show that loss was passed through the distribution chain to the indirect purchaser level.

[210] What is key, for the purposes of the commonality issue, is the difference between demonstrating that loss reached the indirect purchaser level — that is, that some overcharges were passed on to some unidentified indirect purchasers — and proving that loss reached all or an identified group of indirect purchasers.

[211] My colleague seems to accept that there is some basis in fact for finding that Dr. Reutter's methodology will have a reasonable prospect of establishing, at the common issues trial, that all of the indirect purchasers suffered a loss. In his view, however, nothing turns on this given his conclusion as to the law.

[212] For the purposes of my analysis, I am prepared to accept that there is some basis in fact on which the Certification Judge could have found that the proposed methodology would be capable of proving at trial that loss had reached the indirect purchaser level. My disagreement with my colleague lies elsewhere. In my view, a methodology that is incapable of establishing at trial that at least some of the proposed class members (beyond those who are already identified as having suffered a loss due to their status as direct purchasers) suffered a loss cannot support the certification of the relevant loss-related questions as common issues.

[213] In Microsoft, this Court affirmed that, in order to have a question certified as a common issue, the representative plaintiff must show that there is some basis in fact for the commonality requirement in s. 4(1)(c) of the Class Proceedings Act — that is, that the question be capable of resolution on a class-wide basis. What the "some basis in fact" standard requires in the context of loss-related questions is the focus of much of the debate between the parties in these appeals.

[214] In the case at hand, the loss-related questions proposed by the Plaintiff include the following: What damages, if any, are payable to the Class Members pursuant to s. 36 of the Competition Act? Did the Class Members suffer economic loss? Have the Class Members suffered a corresponding deprivation in the amount of the overcharges on the sale of ODDs?

[215] The term "Class Member" or "Class Members" is defined in the Plaintiff's Proposed Litigation Plan as "one or more members of the proposed class", which is comprised of direct purchasers, indirect purchasers, and umbrella purchasers.

[216] The broad definition of the term "Class Members", and the use of that term in stating the proposed loss-related questions, reflects the possibility that the Plaintiff might not be able to prove at trial that everyone who purchased an ODD or an ODD product actually suffered a loss in connection with the alleged price-fixing conspiracy. Rather, the evidence might be such that loss is provable as to some class members but not others. This is entirely consistent with the suggestion made to Dr. Reutter during his cross-examination that there might be some class members within each sub-group who would not be able to prove that they were impacted by the alleged conspiracy.

[217] Regardless of how flexible these questions might be, however, they cannot be answered on a "class-wide" or "common" basis at trial if the Plaintiff's methodology is incapable of establishing loss in any identifiable manner. This is because mere proof that some loss reached the indirect purchaser level in the distribution chain does not dispose of any element of liability for any indirect purchaser.

[218] As my colleague seems to implicitly acknowledge in his reasons, proof that loss reached the indirect purchaser level is insufficient for any finding of liability to be made at the common issues trial. This is because loss or deprivation suffered by the claimant is an essential element of the causes of action under s. 36 of the Competition Act, under the common law tort of civil conspiracy, and in unjust enrichment.

[219] This, of course, makes sense when we consider the fact that a class action is essentially an aggregation of individual actions that share common issues of fact and law (Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at para. 27). In Bou Malhab v. Diffusion Métromédia CMR Inc., 2011 SCC 9, [2011] 1 S.C.R. 214, this Court reiterated that the class action does not create new substantive rights, and accordingly, each class member must have an individual cause of action against the defendant, otherwise the plaintiff will be unable to obtain a judgment that will benefit all of the class members.

[220] Moreover, and again as my colleague's reasons make clear, the aggregate damages provisions of the Class Proceedings Act (ss. 29 to 34) cannot be of any assistance to the Plaintiff in establishing liability to all of the class members in a case like this, where proof of loss is a constituent element of the cause(s) of action. As Rothstein J. explained in Microsoft:

[221] The aggregate damages provisions of the Class Proceedings Act therefore cannot be interpreted and applied in such a way as to give a remedy to class members who could not obtain a remedy in an individual trial due to their inability to show that they suffered a loss in connection with the alleged conspiracy. It is important not to conflate the assessment of aggregate damages with the rationale for class proceedings — the existence of an aggregate award does not mean that members of the class who have no cause of action are entitled to share in the award.

[222] What all of this means is that a determination at a common issues trial of whether loss reached the indirect purchaser level in the distribution chain is of no assistance in resolving the question of whether the Defendants are actually liable to any or all of the indirect purchasers under the causes of action listed above. From the Plaintiff's perspective, the best case scenario is that the evidence at the common issues trial establishes that at least some overcharges were passed on to at least some indirect purchasers.

[223] My colleague states that the loss-related questions proposed by the Plaintiff in this case satisfy the commonality requirement in s. 4(1)(c) of the Class Proceedings Act, based on a methodology that is capable of proving that overcharges were passed on somewhere at the indirect purchaser level, even though such a methodology cannot allow any finding of liability to be made at trial.

[224] In light of the legal principles set out by my colleague at paras. 103-5 of his reasons, however, I cannot agree. To begin with, the fact that losses might have occurred somewhere at the indirect purchaser level in the distribution chain does not assist us in determining which specific indirect purchasers suffered losses in order to identify the class members to whom the Defendants might be liable. At most, a determination that some indirect purchasers suffered a loss would advance a subset of class members' claims while having no impact on the other class members' claims.

[225] My colleague nevertheless opines that the requisite commonality derives from the fact that failure to show that loss was suffered by any indirect purchasers would mean that none of them could succeed against the Defendants (para. 108). With respect, however, the function of the common issues trial is not to screen out unmeritorious claims; it is to allow issues of fact and law that are common to the class members to be determined at once and for all. A determination that loss occurred somewhere at the indirect purchaser level does not satisfy this purpose.

[226] All of this leads me to the conclusion that proof that loss reached the indirect purchaser level in the distribution chain would not, without more, allow the common issues trial judge to make any loss-related determinations on a class-wide basis so as to permit the proposed questions to be certified as common issues for trial.

[227] Like the courts below, my colleague relies on this Court's decision in Microsoft to support his conclusion that loss-related questions in indirect purchaser class actions are certifiable even if the representative plaintiff's methodology can show only that loss reached the indirect purchaser level (but cannot establish loss on any individualized basis). Because that case raised a number of important questions and has been widely debated and interpreted by courts and scholars, it is worth considering its facts and holding more closely.

[228] As in this case, the class action in Microsoft was based on an allegation of price manipulation by the defendants, Microsoft Corporation and Microsoft Canada Co./Microsoft Canada CIE (collectively, "Microsoft"). The representative plaintiffs — Pro‑Sys Consultants Ltd. and Neil Godfrey (collectively, "Pro‑Sys") — specifically alleged, on behalf of all class members, that Microsoft had engaged in a price-fixing conspiracy in respect of its Windows and Office software programs.

[229] Although the loss-related questions in that case are very similar to those proposed in the case at hand, they explicitly asked whether losses or overcharges had been passed on to all of the indirect purchaser class members.[^7] Among the issues at the certification stage was "whether Pro-Sys' proposed methodology will be able to show the initial overcharges and the pass-through to the proposed class members" (para. 119 (emphasis added)).

[230] Rothstein J., writing for a unanimous Court, clarified that the onus on the representative plaintiff at the certification stage is to establish that there is some basis in fact for the commonality requirement. In the context of loss-related questions, he observed that this requires the proposed methodology to "offer a realistic prospect of establishing loss on a class-wide basis" (para. 120). The opinion of the representative plaintiffs' expert satisfied this standard, because "[t]he focus of [his] report [was] on the conditions necessary to ensure that the overcharges were passed on to the proposed class members" (para. 122). In other words, the expert's opinion addressed the question of whether the overcharges had been passed on to all of the proposed class members.

[231] In the case at hand, the courts below interpreted this passage as meaning that loss-related questions will always be certifiable as common issues in the context of indirect purchaser class actions so long as the representative plaintiff's methodology is capable of showing loss at the indirect purchaser level of the distribution chain. Respectfully, this reading of Microsoft — which focuses narrowly on the reference to "indirect-purchaser level" — is incorrect.

[232] For our purposes, it is significant that the loss-related questions in Microsoft concerned whether all of the indirect purchasers had suffered a loss. Rothstein J. agreed that the class members' claims raised common issues because the resolution of those issues "would appear to advance the claims of the entire class and to answer them commonly will avoid duplication in legal and factual analysis" (para. 121). The reason for this was that the expert's methodology addressed the issue of loss in respect of all of the proposed class members.

[233] A careful reading of Microsoft therefore makes it clear that Pro-Sys's loss-related questions were found to be resolvable on a "class-wide" basis because there was a credible and plausible methodology capable of answering them in respect of all of the class members at the common issues trial. Rothstein J. most likely referred to a methodology that is "able to establish that the overcharges have been passed on to the indirect-purchaser level" as a shorthand for one that can show that the overcharges were passed on to the indirect purchasers — that is, to all of the proposed class members who are indirect purchasers.

[234] Microsoft is therefore a case in which the representative plaintiffs obtained the certification of questions asking whether all indirect purchasers had suffered a loss, by providing the motion judge with some basis in fact on which to find that the representative plaintiffs would be capable of proving at trial that they all had. Because the methodology made it possible for the common issue trial to potentially resolve the issue of loss for the entire class, the loss-related questions satisfied the commonality requirement in s. 4(1)(c) of the Class Proceedings Act.

[235] The legal dispute between the parties turns on whether loss-related questions that pertain to indirect purchasers in a price-fixing class action can be certified as common issues even if the representative plaintiff's methodology is capable only of establishing at trial that loss was occasioned somewhere at the indirect purchaser level of the distribution chain. I would respectfully answer that question in the negative.

[236] That being said, what is required of the Plaintiff in this case is a methodology capable of answering the loss-related questions on an individualized basis, either by showing that all of the indirect purchasers suffered a loss or at least by identifying those who did and separating them from those who did not or those about whom we cannot be sure (and for whom individual hearings will therefore be required). A methodology that is capable only of establishing that some unidentified indirect purchasers suffered a loss does not satisfy this standard. Accordingly, I would allow this aspect of the Toshiba Appeal.

IV. Conclusion

[237] Regarding the limitations issues raised in the Pioneer Appeal, I respectfully disagree that the discoverability rule has any application to s. 36(4)(a)(i). As for the doctrine of fraudulent concealment, the Plaintiff did not plead that there is any special relationship between the Pioneer Defendants and the class members, but did plead that the Pioneer Defendants took active steps to conceal the unlawful conspiracy. Given this, it is not plain and obvious that the fraudulent concealment doctrine has no application. Accordingly, I would dismiss the Pioneer Appeal with respect to the issue of fraudulent concealment.

[238] Regarding the issues in the Toshiba Appeal, which are common to both appeals, I agree with my colleague — though for different reasons — that the existence of the statutory cause of action in s. 36(1) of the Competition Act does not preclude claimants from also advancing claims at common law or in equity based on the same conduct prohibited by Part VI. However, I part ways with my colleague on the remaining two issues in the Toshiba Appeal: the Umbrella Purchasers' cause of action under s. 36(1) of the Competition Act, and the standard applicable to the certification of loss-related questions as common issues. I would allow the appeal on these two points.

[239] I would therefore allow the appeals in part.

Appeals dismissed with costs, Côté J. dissenting in part.

Solicitors

Solicitors for the appellants Pioneer Corporation, Pioneer North America, Inc., Pioneer Electronics (USA) Inc., Pioneer High Fidelity Taiwan Co., Ltd. and Pioneer Electronics of Canada Inc.: Osler, Hoskin & Harcourt, Toronto.

Solicitors for the appellants Toshiba Corporation, Toshiba Samsung Storage Technology Corp., Toshiba Samsung Storage Technology Corp. Korea, Toshiba of Canada Ltd. and Toshiba America Information Systems, Inc.: Cassels Brock & Blackwell, Toronto.

Solicitors for the appellants Samsung Electronics Co., Ltd., Samsung Electronics Canada Inc. and Samsung Electronics America, Inc.: Aird & Berlis, Toronto.

Solicitors for the appellants Koninklijke Philips Electronics N.V., Lite‑On IT Corporation of Taiwan, Philips & Lite‑On Digital Solutions Corporation, Philips & Lite‑On Digital Solutions USA, Inc. and Philips Electronics Ltd.: McCarthy Tétrault, Toronto.

Solicitors for the appellants Panasonic Corporation, Panasonic Corporation of North America and Panasonic Canada Inc.: Bennett Jones, Toronto.

Solicitors for the appellants BENQ Corporation, BENQ America Corporation and BENQ Canada Corp.: Shapray Cramer Fitterman Lamer, Vancouver.

Solicitors for the respondent: Camp Fiorante Matthews Mogerman, Vancouver; Siskinds, London.

Solicitors for the intervener Option consommateurs: Belleau Lapointe, Montréal.

Solicitors for the intervener the Consumers Council of Canada: Harrison Pensa, London.

Solicitors for the intervener the Canadian Chamber of Commerce: Davies Ward Phillips & Vineberg, Toronto.

Solicitors for the intervener the Consumers' Association of Canada: Sotos, Toronto.

[^1]: Section 45 of the Competition Act was amended in 2009 by the Budget Implementation Act, 2009, S.C. 2009, c. 2, s. 410. Under the amended version of s. 45, conspiracies of the type described in s. 45(1) of the pre-amended version are now per se criminal. As both the Certification Judge and the Court of Appeal noted, the pre-2009 version of s. 45 applies to the facts of this case, since the alleged conspiracy took place between January 1, 2004 and January 1, 2010, before the 2009 amendment came into force.

[^2]: That is, the certification judge held that the unlawful means tort was not available where the unlawfulness alleged was a breach of s. 45(1) of the Competition Act in the absence of lawful means. Neither party appealed that holding.

[^7]: The proposed class consisted of "all persons or entities in Canada who, during the Class Period, purchased in Canada, for their own use and not for resale, any Microsoft operating systems software that was installed on a PC sold by an original equipment manufacturer or purchased directly from Microsoft in a retail package" (Microsoft, at para. 7).