James Lorimer v. Pioneer Energy LP et al., 2013 ONSC 5369

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-142-CP

DATE: 2013/08/21

RE: JAMES LORIMER, Plaintiff

AND

PIONEER ENERGY LP, CANADIAN TIRE CORPORATION LIMITED, MR. GAS LIMITED, and SUNCOR ENERGY PRODUCTS GROUPS (dba SUNOCO) - Defendants

BEFORE: Charbonneau, J.

COUNSEL:
Linda Visser, for the Plaintiff

Sandra A. Forbes, for the Defendant Canadian Tire Corporation, Limited

Katherine Kay, for the Defendant Pioneer Energy LP

James L. MacGillivray, for the Defendant Mr. Gas Limited

David Kent, for the Defendant Suncor Energy Products Group (dba Suncor)

HEARD: August 21, 2013

E N D O R S E M E N T

1The Plaintiff brings this motion for the purpose of obtaining an order certifying the present action as a class proceeding as against the defendant Canadian Tire Corporation only and for settlement purposes only. The Plaintiff and Canadian Tire have reached a settlement the terms of which are included in a comprehensive settlement agreement. The settlement is subject to this Court certifying the action as a class proceeding and ultimately giving its approval to the proposed settlement.

2The Plaintiff has pleaded that the Defendants have engaged in conspiracy which constitutes tortuous conspiracy at common law and conspiracy contrary to the Competition Act, R.S.C., 1985, c. C-34. I am satisfied that the Plaintiff’s pleading adequately pleads all the elements of those causes of action.

3A number of similar claims have been certified by this Court in the past. As examples I refer to: Irving Paper Ltd. v. Atofina Chemicals Inc (2009), 2009 92127 (ON SC), 99 O.R. (3d) 358 (Ont. Sup. Ct.); Vitapharm Canada Ltd. v. F. Hoffman-La Roche Ltd. (2003), 126 A.C.W.S. (3d) 573 (Ont. Sup. Ct.); 799376 Ontario Inc. (c.o.b. Lonsdale Printing Services) (Trustee of) v. Cascades Fine Papers Group Inc. (2008), 173 A.C.W.S. (3d) 695 (Ont. Sup. Ct.); Osmun v. Cadbury Adams Canada Inc. (2009), C.P.C. (6th) 148 (Ont. Sup. Ct.).

4The Plaintiff has proposed the following definition for the class:

All Persons who purchased Gasoline* in Eastern Ontario** during the Settlement Class Period***, except the Excluded Persons.

• Gasoline means all grades of gasoline (excluding diesel) sold at retail gas stations.

** Eastern Ontario means the Kingston, Brockville and Belleville regional markets.

*** Settlement Class Period means May 1, 2007 to November 30, 2007.

5I find that the class definition meets all of the requirements of a proper class for class proceeding as it sets out in objective and readily ascertainable terms who is a member of the class.

6There is only one proposed common issue:

Did the Settling Defendant conspire to raise, maintain, fix or stabilize the prices of Gasoline in Eastern Ontario during the Settlement Class Period Contrary to Part VI of the Competition Act and the common law? If so, what damages, if any, did Settlement Class Members Suffer?

7It is clear that the legal and factual questions as to the existence of the alleged conspiracy is an issue common to all class members. All class members have a common interest in proving its existence. Deciding this issue in the context of a class proceeding will avoid duplication of fact finding or legal analysis.

8I am also convinced that certification of the present action provides an efficient way of deciding the common issue in accordance with the three goals of the (statute).

9The evidence establishes that the proposed representative Plaintiff is a class member within the class definition and there is no evidence that his interests are in conflict with the interests of the other class members.

10The settlement agreement proposes a workable plan to resolve the proceeding. I am also satisfied that the opting-out provision, the proposed notices to class members and the plan of dissemination are well thought out and effective.

11Canadian Tire joins with the Plaintiff in support of the requested Order pursuant to the terms of the Settlement Agreement. The three other Defendants have appeared at the hearing of the motion and indicated they are taking no position.

12I have, therefore, signed the Order submitted by the Plaintiff.

Charbonneau, J.

DATE: August 21, 2013

COURT FILE NO.: FL-01-2117-5

DATE: 2013/08/21

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: JAMES LORIMER, Plaintiff

AND

PIONEER ENERGY LP, CANADIAN TIRE CORPORATION LIMITED, MR. GAS LIMITED, and SUNCOR ENERGY PRODUCTS GROUPS (dba SUNOCO) - Defendants