CITATION: Fanshawe College v. AU Optronics, 2015 ONSC 2046

COURT FILE NO.: 62858CP

DATE: 2015/03/31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY

C. Wright and L Visser, for the Plaintiff

Plaintiff

• and -

AU OPTRONICS CORPORATION, CHI MEI CORPORATION, CHI MEI OPTOELECTRONICS CORPORATION, NEXGEN MEDIATECH INC. and HANNSTAR DISPLAY CORPORATION

K. McEwan and E. Kirkpatrick, for the Defendant AU Optronics Corporation

S. Kugler and A. Zavagia, for the Defendant Hannstar Display Corporation

Defendants

HEARD: November 13, 2014

Grace J.

A. Overview

[1] The Fanshawe College of Applied Arts and Technology ("Fanshawe") is a London, Ontario based community college. Fanshawe alleges that it purchased televisions, computers and laptops containing large[^1] liquid crystal display panels ("LCD Products") for use in its classrooms, computer laboratories and administrative offices.

[2] AU and Hannstar are Taiwanese companies. AU Optronics Corporation ("AU") and Hannstar Display Corporation ("Hannstar") are alleged to have sold and distributed LCD Products throughout Canada.

[3] Fanshawe maintains that various companies involved in manufacturing, marketing, distributing and selling LCD Products, including AU and Hannstar, unlawfully conspired to fix – or artificially inflate – their price.

[4] On July 20, 2009, this action was commenced pursuant to the provisions of the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("CPA").

[5] The claim asserts two causes of action: the tort of civil conspiracy and breach of Part VI of the Competition Act, R.S.C. 1985, c. C-34.[^2]

[6] Fanshawe seeks various remedies for itself and on behalf of other similarly situated persons in Canada including a declaration, damages, interest and costs.

[7] AU and Hannstar move for summary judgment.[^3]

[8] They maintain that his action was commenced after the expiry of the limitation periods set forth in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, sch. B (the "Limitations Act") and s. 36(4) of the Competition Act.

[9] They also submit that this action constitutes an abuse of process.

B. Background

[10] Many of the facts are undisputed.

[11] The chronology starts on December 12, 2006. On that day, a class action complaint was filed by Judd Eliasoph on behalf of himself and others similarly situated against various companies, including AU, in the United States District Court, Northern District of California. It alleged that the defendants and others conspired to artificially raise, fix, maintain and stabilize prices for what it described as Thin Film Transistor Liquid Crystal Display products.

[12] Allegations of price-fixing in the liquid crystal display ("LCD") industry were also the subject of extensive media coverage outside and within Canada.

[13] The December 13, 2006 editions of the Globe and Mail ("Globe"), Toronto Star ("Star") and Ottawa Citizen ("Citizen") contained articles on the topic. They followed headlines reading "U.S., European regulators probe possible LCD cartel", "Asian LCD firms face probes over price-fixing" and "Samsung, LG. Philips implicated in price-fixing investigation: U.S., South Korea, Japan, Europe all part of regulatory probe", respectively. I will comment on those articles later in these reasons.

[14] The first proposed class proceeding in Canada relating to the alleged conspiracy was commenced in British Columbia less than three months later.[^4] In that proceeding, Kristopher Gruber made claims on behalf of all British Columbia residents who had purchased LCD or products which contained LCD from January 1, 1998 onward (the "B.C. action"). AU and Hannstar were alleged to have participated in the conspiracy and were named as two of the more than two dozen defendants.

[15] On May 2, 2007, a similar proceeding was commenced in this court under the CPA on behalf of Michael Harris and all persons resident in Canada, except British Columbia and Quebec (the "First Ontario action"). AU[^5] and Hannstar were not included in the long list of defendants. However, it was alleged that AU, Hannstar and two other companies "may have participated as co-conspirators in the violation alleged herein".[^6] That "violation" appears to be alleged conduct constituting the tort of civil conspiracy and violated Part VI of the Competition Act.

[16] Fanshawe was added as a plaintiff in the First Ontario action on September 10, 2008. On June 16, 2009, the plaintiffs were given leave to further amend the statement of claim. Mr. Harris was removed from the proceeding, leaving Fanshawe as the only representative plaintiff.

[17] This action was commenced the following month. Presently, Fanshawe is the only representative plaintiff. It seeks relief against AU and Hannstar on the grounds asserted in the First Ontario action: namely, the tort of civil conspiracy and breach of the Competition Act.

[18] AU and Hannstar maintain that there is no genuine issue requiring a trial in this action because the tort of civil conspiracy claim is barred by the Limitations Act and the statutory claim by the Competition Act. Before addressing those statutes, I turn briefly to the principles of law applicable to motions for summary judgment.

C. Principles applicable to Motions for Summary Judgment

[19] Rule 20.04(2) (a) of the Rules of Civil Procedure ("Rules") requires the court to grant summary judgment if satisfied the claim does not involve a genuine issue requiring a trial.

[20] A simple sounding rule has been the subject of extensive judicial comment. The most authoritative statements are found in the anxiously awaited decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 ("Hryniak"). On behalf of a unanimous court, Karakatsanis J. outlined the circumstances in which judgment may appropriately be granted without a trial. At para. 49, Karakatsanis J. wrote:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[21] The court noted that judges hearing such motions are given, among other things, the power to weigh evidence, evaluate the credibility of a deponent and to draw any reasonable inference from the evidence "unless it is in the interest of justice for such powers to be exercised only at a trial".[^7]

[22] However, the court directed motion judges to first determine whether a genuine issue requiring a trial existed based "only on the evidence…without using the new fact-finding powers."[^8]

[23] If such an issue appears, the motion judge may then exercise the powers conferred by rule 20.04(2.1) unless it is in the interest of justice that they be exercised only at a trial. As Karakatsanis J. added at para. 57:

A documentary record, particularly when supplemented by the new fact-finding tools…is often sufficient to resolve material issues fairly and justly.

[24] That approach applies to motions for summary judgment based on a limitations defence.[^9]

[25] In Stone v. The Wellington County Board of Education et al., 1999 CanLII 1886 (ON CA), [1999] O.J. No. 1298 (C.A.), the Court of Appeal rejected the suggestion that an action brought pursuant to the CPA could not be dismissed solely on grounds pertaining to the named plaintiff. The Court of Appeal offered this explanation at para. 10 of its short endorsement:

Where a representative plaintiff, for reasons personal to that plaintiff, is definitely shown as having no claim because of the expiry of a limitation period, he or she cannot be said to be a member of the proposed class. The continuation of the action in those circumstances would be inconsistent with the clear legislative requirement that the representative plaintiff be anchored in the proceeding as a class member, not simply as nominee with no stake in the potential outcome.[^10]

D. Is Fanshawe's Claim Barred by the Limitations Act, 2002?

[26] The Limitations Act applies to the tort of civil conspiracy claim.

[27] Sections 4 and 5 of that statute are relevant. The relevant portions follow:

4. … a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5(1) A claim is discovered on the earlier of,

(a) The day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused or contributed to by an act or omission,

(iii) that the act or omission was of the person against whom the claim is made; and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

5(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[28] Section 5(1)(a) requires actual or subjective knowledge of the four elements of the subsection. Section 5(1)^11 introduces a second and objectively measured possibility.

i. Does subsection 5(1)(a) of the Limitations Act apply?

[29] This action alleges an unlawful conspiracy during a period ending on December 11, 2006. This action was commenced more than seven months after that date. Presumptively this action was commenced too late. Fanshawe bears the burden of displacing that presumption. Therefore, on a motion for summary judgment, Fanshawe must establish that the issue of the expiry of the limitation period is a genuine one requiring a trial. I agree with Leach J.'s analysis in Shuckster v. Young, 2012 ONSC 4807 (S.C.J.), at para. 19 when he wrote in part:

Pursuant to Rule 20, a party moving for summary judgment retains the overall burden of showing that there is no genuine issue requiring trial. However, where a defendant moves for summary judgment in relation to a statutory limitation period, the evidentiary burden as to the discoverability issue and under Rule 20 effectively shifts to the responding party under section 5(2). In particular, the plaintiff must adduce evidence sufficient to demonstrate that there is a genuine issue requiring trial concerning operation of the limitation period pursuant to subsections 5(1) and 5(2). In particular, a plaintiff seeking to defeat the operation of the limitation period on such a motion has the onus to rebut the presumption in s. 5(2), or at least demonstrate that there is a genuine issue requiring trial as to whether the presumption is rebutted.

[30] In an affidavit sworn August 29, 2014, David Smith, Fanshawe's Manager, Retail Services, deposed that Fanshawe was unaware of the alleged conspiracy until January, 2008. At paragraphs 4 and 7 of the affidavit Mr. Smith said:

4. Prior to 2008, Fanshawe had unrelated retainers with Siskinds. In January, 2008, Andrea DeKay, a lawyer at Siskinds, provided information to Fanshawe indicating that the alleged conspiracy potentially impacted Fanshawe and wanting [sic] to ensure that Fanshawe's interests were protected. Fanshawe was not aware of the alleged conspiracy prior to being informed by Ms. DeKay.

5. Prior to discussing the alleged conspiracy with Ms. DeKay, Fanshawe had no reason to expect that LCD Products were price-fixed or to seek out information regarding a possibly [sic] conspiracy in the LCD industry. Fanshawe operated under the assumption that the LCD industry was competitive and that the industry players abided by competition legislation.

[31] AU submitted that those portions of Mr. Smith's affidavit should be struck because they do not disclose the source of Mr. Smith's information as rule 39.01(4) requires. I disagree.

[32] Mr. Smith had earlier deposed that he was responsible for sales, procurement and distribution of computers and related products within Fanshawe. While Mr. Smith was cross-examined briefly, he was not asked whether the contents of the quoted paragraphs were based in whole or in part on outside sources. At this point it appears to me that Mr. Smith was in a position to make the statements in question because of the role he occupied within Fanshawe. Issues with respect to the scope of his knowledge go to weight.

[33] Substantively, AU and Hannstar maintain that there are several reasons why the contents of Mr. Smith's affidavit are insufficient to rebut the statutory presumption contained in s. 5(2) of the Limitations Act.

[34] First, AU and Hannstar rely on the following exchange between Hannstar's counsel and Mr. Smith during cross-examination.

Q. Mr. Smith, we just had one area we neglected to ask a moment ago. In your affidavit you indicate that in January, 2008 that you got information from Siskinds about this alleged conspiracy in paragraph four of your affidavit?

A. Yes.

Q. So my understanding from other filings is that entered into a formal retainer agreement with Siskinds in January, 2008.

A. Yes.

Q. And I am just trying to ascertain when you would've first had those discussions. Would you have had them in 2007?

A. Yes.

Q. Do you recall when you first had those discussions in 2007?

A. No, I don't.

Q. And would you have been the person they spoke to first?

A. No.

Q. Who would that be?

A. I believe it was Harry Bakker.

Q. And who was Harry Bakker?

A. Director of Facilities.

Q. And when were you brought in? Do you recall when you were brought in?

A. I think within a month of that conversation.

Q. And do you recall when that would've been?

A. I think it was the spring of 2007.

Q. Spring of 2007 and I take it, by spring, just so we're all clear, that's March/April or April May?

A. I can't recall.

Q. But between March and May?

A. Yeah.

[35] Mr. Smith's affidavit had not mentioned any conversation with anyone in 2007. Consequently, the references to that calendar year are surprising. However, Mr. Smith was not asked for details of what occurred when he was "brought in" following any discussion between Siskinds and Mr. Bakker. Did the discussion relate to the alleged conspiracy? If so, in what way? I don't know.

[36] Further, no questions were asked of Mr. Smith concerning paragraphs 4 or 7 of his affidavit in light of whatever occurred in 2007. The implications of the exchange were simply not explored. Consequently, while the evidence given by Mr. Smith in his affidavit became somewhat muddled and hazy, the cross-examination had no greater effect. The moving parties submit Mr. Smith testified that Fanshawe knew of the alleged conspiracy between March and May, 2007. I do not share that view. His evidence did not go that far.

[37] More than two weeks after the cross-examination was complete, Fanshawe filed a motion seeking, among other things, leave to file a supplemental affidavit of Mr. Smith sworn October 23, 2014.

[38] In the supplementary affidavit Mr. Smith deposed that after being cross-examined he reviewed e-mails and determined the "the first substantive discussions between Fanshawe and Siskinds LLP regarding the class action occurred in January 2008." AU and Hannstar opposed Fanshawe's attempt to enlarge the evidentiary record.

[39] In light of my conclusion that the cross-examination was of little consequence this aspect of Fanshawe's motion is, to some extent, academic. However, the legal issue it raises is an important one and deserves comment.

[40] Fanshawe concedes that the Rules do not expressly permit an affiant to swear a supplementary affidavit following cross-examination. However, Fanshawe argues leave can and should be granted as a result of the combined operation of s. 12 of the CPA and rules 1.04(2), 31.09 and 39.02. I disagree.

[41] I am not certain that I have jurisdiction to make the order Fanshawe seeks. Fanshawe's counsel had the right of re-examination: rule 34.11(3) and (4) and rule 39.03(2). Questions could have been asked of Mr. Smith immediately following cross-examination. In fact, that right was exercised immediately after the cross-examination of another affiant.[^12] In my view, those subrules set forth the correct – and operative – procedure. Fanshawe did not follow it.

[42] Fanshawe relies on rule 31.09(1). It obligates parties to take remedial action when they discover that an answer is or was incorrect or incomplete. However, the rule applies only to examinations for discovery. Different rules apply to cross-examinations on affidavits.

[43] If affiants were permitted to file further affidavits following cross-examination, when would the evidentiary record ever be complete? It would be almost impossible to say.

[44] Fanshawe also relies on rule 39.02(2). It permits a party who has cross-examined on an affidavit delivered by an adverse party to subsequently deliver an affidavit for use at the hearing of a motion with leave or on consent. The court is required to grant leave if satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination.

[45] That subrule is not applicable here. Fanshawe was cross-examined. It seeks to file a supplementary affidavit to address matters arising from the cross-examination of its own witness. It is not responding to something raised by AU or Hannstar.

[46] Even if the court has jurisdiction to allow an affiant to file a supplementary affidavit after cross-examination, I would not exercise it. If an additional right beyond re-examination is ever to be conferred, it must be reserved for the most exceptional of circumstances. This case does not fit within that category.

[47] Mr. Smith could and should have been fully prepared for the cross-examination. The supplementary affidavit is clearly aimed to address the fact that he faltered.[^13] Leave to file the supplementary affidavit is denied. Therefore, there is no need to address its contents any further.

[48] I turn to the second argument made by AU concerning the sufficiency of Mr. Smith's evidence. AU relies on s. 12(2) of the Limitations Act. If an agent knows and has a duty to communicate knowledge of matters listed in s. 5(1) (a) of that statute, s. 12(2) imputes that knowledge to the principal (in this case Fanshawe).

[49] AU argued that Fanshawe had an affirmative obligation to prove that none of its agents "with the relevant duty had knowledge of the alleged conspiracy" before July 20, 2007.

[50] That submission goes too far. I have already addressed the presumptive rule in s. 5(2) of the Limitations Act. I do not agree that s. 12(2) of the statute obligates Fanshawe to prove that it has identified and questioned particular officers, directors or employees within its ranks about the alleged conspiracy.

[51] Mr. Smith's affidavit is admittedly short. That is understandable. He deposed to a lack of knowledge of those things that allegedly made a common law claim discoverable more than two years before this action started. Mr. Smith holds a management position with responsibility for acquiring products containing the subject matter of the alleged conspiracy. He gave evidence on behalf of his employer. In that capacity, he made statements concerning the state of knowledge of "Fanshawe".

[52] There is no precise formula a plaintiff must meet in addressing s. 5(2) of the Limitations Act. On its face, the affidavit rebutted the statutory presumption.

[53] Mr. Smith was barely tested on cross-examination. He was not asked to elaborate about the scope of his duties.

[54] Several names were mentioned during cross-examination: Fanshawe's Director of Facilities Harry Bakker, Fanshawe's then President Howard Rundle and former Chair Bob Siskind. However, details of their involvement were exceedingly vague.

[55] In its factum, AU alleged that Mr. Smith could not testify about the knowledge of Fanshawe's board members and senior managers concerning the alleged conspiracy "because he did not speak with them."[^14] AU overstated Mr. Smith's evidence.[^15] During cross-examination, Mr. Smith agreed that from 2006 to 2009 members of the board of directors and each senior manager were not asked whether they were aware of various articles concerning the LCD industry. However, the questions went no further.

[56] No "agent" of Fanshawe has yet been identified who possessed knowledge of the alleged conspiracy more than two years before this action was commenced.

[57] Third, AU and Hannstar submitted that the tort claim is statute barred because Siskinds knew of the alleged conspiracy long ago. Siskinds commenced the First Ontario action in May, 2007. AU submits that the knowledge of Siskinds should be imputed to Fanshawe.

[58] Because Siskinds has acted for Fanshawe since at least 2002, AU and Hannstar submit that Fanshawe is deemed to have known of the cause of action by the time the First Ontario action was commenced. If so, this proceeding was initiated too late.

[59] The moving parties are correct that knowledge of a solicitor may be imputed to a client.[^16] However, none of the authorities provided suggest that can or will occur unless the solicitor-client relationship relates to the matters in issue. Mr. Smith deposed that Fanshawe retained Siskinds to pursue litigation on its behalf in relation to the alleged conspiracy on January 24, 2008. He said that pre-existing retainers concerned "unrelated" matters.

[60] It is inconceivable to me that a law firm's knowledge of a topic could be imputed to a client based on an unrelated retainer. That cannot be the law. Surely, there must be a connection between the relationship and the information known by the law firm.

[61] As mentioned, during cross-examination Mr. Smith referred to an initial discussion between Siskinds and Mr. Bakker in the spring of 2007. Mr. Smith said he was "brought in" within a month of that conversation. However, I have absolutely no idea what was discussed by anyone. The evidence does not allow me to impute knowledge to Fanshawe earlier than the date mentioned in Mr. Smith's affidavit: January 2008. The cross-examination did not yield answers which allow me to advance the date to the March to May, 2007 timeframe.

[62] Fanshawe's evidence addresses the state of its knowledge of the conspiracy. It has demonstrated there is a genuine issue requiring a trial as to whether the presumption of knowledge set forth in s. 5(2) of the Limitations Act has been rebutted.

ii. Does subsection 5(1)(b) of the Limitations Act apply?

[63] Section 5(1)(b) introduces a conjunctive and objective test. As noted earlier, it provides that a claim is discovered on the day on which a reasonable person with the abilities and in the circumstances of the claimant (Fanshawe) first ought to have known of the matters referred to in subsection (a). Those are: that the injury, loss or damage had occurred; that the injury, loss or damage was caused or contributed to by an act or omission; that the act or omission was of the person against whom the claim is made and that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

[64] The provision imposes an affirmative obligation on claimants. Hourigan J.A. offered this explanation in Longo v. MacLaren Art Centre, 2014 ONCA 526 at paras. 42-44. In part, he wrote:

42. A plaintiff is required to act with due diligence in determining if he has a claim. A limitation period will not be tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a). While some action must be taken, the nature and extent of the required action will depend on all the circumstances of the case…

43. The Soper[^17] case, which was cited by the motion judge, was decided under the previous legislation but is entirely consistent with the current legislation. The plaintiff must act reasonably in investigating and determining whether he or she has a claim. A consideration of whether the plaintiff has acted reasonably will include an analysis of not only the nature of the potential claim but also the particular circumstances of the plaintiff.

44. Certainty of a potential defendant's responsibility for an act or omission that caused or contributed to the loss is not a requirement. All that is required is that the plaintiff has prima facie grounds to infer that the acts or omissions were caused by the identified parties.

[65] It is acknowledged that there was extensive media coverage concerning probes into the LCD industry starting in December 2006.

[66] Several articles were published in Ontario. On December 13, 2006, the Globe reported that European and U.S. regulators had announced an ongoing investigation of "a possible cartel involving makers of liquid crystal display monitors" and of "the possibility of anti-competitive practices in the LCD industry."

[67] On the same day the Star reported that "[l]iquid crystal display makers in Japan, Taiwan and South Korea are facing probes by trade watchdogs as a widening price-fixing investigation" in the LCD industry. Falling share prices of various companies were reported, including L.G. Philips and Samsung. The Star noted that LCDs were "the displays used in flat-panel televisions and personal computers."

[68] Mr. Smith acknowledged that Fanshawe was a Globe and Star subscriber at the time. At paragraph 6 of his affidavit, Mr. Smith deposed that:

To my knowledge, no member of Fanshawe brought the articles to the attention of Fanshawe's Board of Directors or senior management.

[69] In cross-examination, Mr. Smith agreed that from 2006 to 2009 he did not speak with board members or senior managers about articles concerning the LCD industry except those he described as "direct report". No other details were requested or given.

[70] The December 13, 2006 edition of the Citizen included a report concerning the LCD industry. It also noted that "AU Optronics plans to co-operate with the Justice Department and Japan's antitrust regulator". AU Optronics was one of several companies involved in the LCD industry mentioned in an article appearing on the Canadian Press Newswire that day.

[71] A day earlier, a class proceeding had been commenced in the United States. AU Optronics, AU Optronics Corporation America and Hannstar were included in the long list of defendants.[^18]

[72] The B.C. action was commenced on March 6, 2007.

[73] The First Ontario action followed on May 2, 2007. Michael Harris was named as the representative plaintiff. Siskinds has acted throughout. On the same day that law firm posted a notice on www.classaction.ca bearing the heading "Liquid Crystal Display". The notice said in part:

This class action alleges that the Defendants unlawfully conspired to fix, increase, and/or maintain prices at which LCD or products containing LCD were sold in Canada.

The plaintiff alleges that from at least January 1, 1998 through to the present, the defendants and their senior executives participated in illegal and secretive meetings and made agreements relating to price targets, specific price increases, market share divisions and production capacity for LCD.

LCD is a thin, flat display device made of numbers of pixels arrayed in front of a light source or reflector. LCD is used in television screens, computer monitors (both desktop and notebook), mobile phones, personal digital assistants, digital cameras and other devices.

[74] A link to the statement of claim was provided as were contact details for those seeking more information. AU and Hannstar were mentioned but not named as defendants.

[75] On May 23, 2007, the Star reported that LCD market participant LG Philips "is one target of an investigation into anticompetitive practices in the industry by U.S. and Asian regulators."

[76] A class proceeding was commenced in the Province of Quebec the following month.[^19]

[77] All of these facts pre-date July 20, 2007. The moving parties submit that they support the conclusion that Fanshawe ought to have discovered the claim more than two years before it was commenced. Alternatively, AU and Hannstar maintain that Fanshawe has failed to prove that it acted with due diligence in determining if it had a cause of action.

[78] I disagree. The issue of whether a reasonable person in the position and circumstances of Fanshawe ought to have known of the elements listed in s. 5(1)(a) is a genuine one requiring a trial.

[79] Fanshawe is a large educational institution. It might well be appropriate to conclude that a reasonable person in its position would have read and fully digested the reports appearing in Canadian publications. However, on the evidence introduced so far, it is a distant and unwarranted stretch to conclude Fanshawe ought to have known of any of the items listed in s. 5(1)(a), let alone all four of them as the subsection requires.

[80] According to the press, a price-fixing investigation was underway involving a component used in flat-panel televisions and personal computers. No conclusions had been reached, even on a tentative basis. The possible implications were unaddressed beyond declining prices of the shares of some of the participants in the LCD industry. None of the defendants in this action were mentioned in the two publications to which Fanshawe subscribed; the Globe and the Star. The Citizen mentioned AU Optronics but Fanshawe was not a subscriber. In any event, that article simply indicated that AU planned to cooperate in the investigation.

[81] Class proceedings were commenced in various jurisdictions including Ontario. A short notice was posted by Siskinds on one website concerning the First Ontario action. There was no evidence that anyone from Fanshawe accessed the website or saw the notice.

[82] Nothing else was done that I recollect seeing or hearing about. There were no press releases. There were no media reports of any of the proposed class proceedings. Notices do not appear to have been created, let alone disseminated.

[83] Hannstar noted that Mr. Harris, initially the representative plaintiff in the First Ontario action, was a consumer. In its factum Hannstar submitted that:

It defies logic to suggest that a large academic institution like Fanshawe was less capable of ascertaining the facts giving rise to the claim than individual consumers.

[84] I disagree. I have no knowledge of Mr. Harris. I do not know how he came to be a representative plaintiff. Did he approach Siskinds? Mr. Smith deposed that Siskinds approached Fanshawe. Was Mr. Harris in the same position? I simply do not know. It is not self-evident to me that a high level of sophistication necessarily leads to greater knowledge about a particular topic. It would be folly to equate Fanshawe and Mr. Harris simply because Fanshawe is a large academic institution and Mr. Harris is an individual.

[85] AU relied on Coulson v. Citigroup Global Markets Inc., 2010 ONSC 1596 (S.C.J.) aff'd 2012 ONCA 108 ('Coulson'). In that case, shares of Philip Services Inc. ("Philip") were sold as part of a public offering pursuant to a prospectus. In March and April 1998, Philip issued a series of press releases that announced unexpected and negative changes in its financial position. The price of Philip's shares plummeted.

[86] Two proposed class actions were commenced. The first started on May 5, 1998. It asserted common law and statutory claims. Joseph Menegon was the representative plaintiff. The motion to certify that action was dismissed. Further, the motion judge dismissed Mr. Menegon's claim. An appeal to the Court of Appeal was dismissed. Leave to appeal to the Supreme Court of Canada was denied.

[87] Another plaintiff (Mr. Coulson) commenced a second proposed class action on July 8, 2003. He asserted a statutory cause of action under s. 130 of the Securities Act. Section 138 of that statute imposed a limitation period that had long expired unless tolled as a result of the appeals in the first action.

[88] In the course of his reasons, Perell J. suggested that the applicable limitation period commenced running either on the date Philip issued the first press release or "at the latest" when the first action was commenced and "a s. 130 claim was asserted (demonstrating that class members had first knowledge of…)" the facts giving rise to the cause of action.[^20]

[89] That passage does not assist the moving parties. It was not a statement of legal principle. It was a factual finding. Philips issued several press releases concerning the need to restate financial statements for multiple fiscal years. Those spawned news articles. The price of Philips' shares declined and then plummeted. Soon afterward over 150 purchasers of Philip shares contacted the law firm that commenced both proceedings. The content of the press releases and news articles were vastly different than in this case. Further, the effect was felt directly by Philips' shareholders including Mr. Menegon and Mr. Coulson. That is not this situation.

[90] Moreover, Perell J. had already made the following critical observation at para. 28:

…Mr. Coulson…was not part of the initial group that contacted the law firm. He contacted them later, but it is acknowledged that the misrepresentations on which his claim under s. 130 of the Ontario Securities Act would eventually be based were known by the spring of 1998. [Italics added]

[91] In this case the date on which the limitation period started to run is in dispute. That was not the issue in Coulson. As the Court of Appeal noted, "everything turns on the effect to be given to the Menegon appeal under s. 28(2) of the CPA." In other words, the issue was whether the limitation period was suspended – or tolled – while the first action wound its way through the Court of Appeal and Supreme Court of Canada.

[92] I do not understand why commencement of an action would fix all members of the putative class with knowledge of the cause of action. As noted, aside from one short notice on a website created by Siskinds, the proceeding was not publicized.

[93] In Lipson v. Cassels Brock & Blackwell LLP (2013), 2013 ONCA 165, 114 O.R. (3d) 481 (C.A.) at para. 84, the Court of Appeal noted that the commencement of a limitation period "may be an issue that must be determined individually for each class member, depending on what individual class members were told and when."

[94] Determining that the commencement of a proposed class proceeding serves as the last possible day for the commencement of a limitation period would be arbitrary. It would not be based on the evidence in this case. It would be a legal fiction. A procedural vehicle would be converted into something more.[^21] I decline the invitation to be its creator.

[95] At this stage I am not satisfied that Fanshawe knew or ought to have known of the elements set forth in s. 5(1)(a) of the Limitations Act. I simply cannot make dispositive findings based on the evidence before me.

[96] I would dismiss the motion for summary judgment insofar as it relates to the tort of civil conspiracy claim.

E. Is Fanshawe's Statutory Claim Barred by the Competition Act?

[97] Competitors who conspire or agree to fix or control the price for the supply of a product are guilty of an offence under Part VI of the Competition Act.[^22]

[98] Section 36(1) of the statute gives anyone who suffers loss or damage as a result of conduct contravening Part VI a right of action and recovery against the participants.

[99] However, the proceeding must be a timely one. Section 36(4)(a) of the Competition Act provides as follows:

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 proceeding relating thereto were finally disposed of,

whichever is the later…

[100] Fanshawe alleges that the defendants conspired to control the price of LCD Products during a period ending December 11, 2006.

[101] The moving parties' position is a simple one. They maintain that discoverability is not a feature of the Competition Act.[^23] In Garford Pty v. Dywidag Systems International, 2010 FC 996 at para. 33 ("Garford"), Russell J. concluded that the plaintiff could not rely on discoverability to extend the limitation period set forth in s. 36(4) of that statute.

[102] Therefore, they submit that any claim under the Competition Act had to be made by December 10, 2008 because no criminal proceedings have been commenced in this country. This action was initiated in July, 2009. AU and Hannstar argue the claim is out of time.

[103] Fanshawe disagrees. Because a limitation period restricts rights of action, statutory provisions creating them are to be strictly construed.[^24] Fanshawe submits that s. 36(4) of the Competition Act is subject to discoverability.

[104] It seems to me that the law is unclear.

[105] Garford was the subject of an appeal. While it was dismissed, the Federal Court of Appeal observed at para. 10:

The crux of Garford's argument is that the judge erred in failing to find that the "discoverability principle" applied to extend the limitation period. In our view, the issue of discoverability does not arise on the facts of this case.[^25]

[106] It did not comment further on the issue.

[107] Section 36(4) of the Competition Act was considered in Laboratories Servier v. Apotex Inc., 2008 FC 825. The court concluded that discoverability was inapplicable. At para. 488 Snider J. wrote:

The discoverability principle can, in some circumstances, operate to extend a limitation period. This principle operates where a party could not reasonably have known about the existence of an event. In this case, Servier asserts that, since the statutory limitation period in s. 36(4) expressly runs from a specific date independent of knowledge, the discoverability principle cannot apply. I think that this is likely a correct view of the law (see Fehr v. Jacob (1993), 85 Man. R. (2d) 64 (Man. C.A.)).

[108] The issue in Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549 ("Peixeiro") was whether the discoverability principle applied to a statutory provision which required commencement of an action within two years of the date on which "damages were sustained."

[109] The court also referred to Fehr v. Jacob (1993), 1993 CanLII 4407 (MB CA), 14 C.C.L.T. (2d) 200 (Man. C.A.). It referred to and agreed with Twaddle J.A.'s opinion that:

…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 sustained, the judge-made discoverability rule applies. But, when time runs from an event which clearly occurs without regard to the injured party's knowledge, the judge-made discoverability rule may not extend the period the legislature has prescribed.[^26]

[110] The Supreme Court of Canada agreed that discoverability is a general rule of construction "applied to avoid the injustice of precluding an action before the person is able to raise it."[^27] Writing on behalf of the Court, Major J. made these observations at paras. 38-39:

38. …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.

39. …In balancing the defendant's legitimate interest in respecting limitations periods and the interest of the plaintiffs, the fundamental unfairness of requiring a plaintiff to bring a cause of action before he could reasonably have discovered that he had a cause of action is a compelling consideration.

[111] However, the discoverability rule is not to be applied automatically.[^28] As Bastarache J. said in Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53 at para. 24, resort may not be had to the 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."

[112] For example, discoverability is not taken into account when facing a limitation period triggered by death or the granting of letters of administration.[^29]

[113] In Chadha v. Bayer Inc., 1998 CanLII 14791 (ON SC), [1998] O.J. No. 6419 (S.C.J.)[^30] the plaintiffs alleged that the defendants were parties to an agreement that violated the Competition Act. According to the statement of claim the agreement ended in 1992. The action was commenced more than two years later. The defendants moved to strike the statement of claim on a number of grounds including s. 36(4) of the Competition Act.

[114] In the statement of claim the plaintiffs plead that the defendants withheld information preventing discovery of their activities until 1997. The motion judge declined to strike the statement of claim on the basis of the limitation defence at the pleadings stage. At paragraph 7, Sharpe J., as he then was, explained his decision in these terms:

While it is certainly arguable in view of the wording of s. 36(4)(a)(i) that the discoverability rule is not applicable, the matter cannot…be said to be beyond doubt. Parliament has hardly provided potential defendants with an iron-clad assurance that they may not be sued more than two years after the cessation of their conduct as the limitation period could start to run again in the event of criminal proceedings. Moreover, there may well be a broader ground for granting the plaintiffs relief from the limitation period if there was concealment of the grounds for the claim as suggested by…the statement of claim…

[115] I agree. In fact, I would go so far as to say that I do not share the view expressed in the Federal Court that the general rule of discoverability is precluded – or displaced - by s. 36(4) of the Competition Act.[^31]

[116] An action commenced under s. 36(1) of the Competition Act must be based on a breach of Part VI of that statute. Section 45 is found in that Part. It is triggered by an arrangement to fix or control the price for the supply of a product.

[117] It seems obvious that participants in a price-fixing scheme would attempt to conceal their activities. It is impossible to say categorically when those affected will learn or have the means of learning of the offending conduct. It will depend on the circumstances of each case.

[118] Unless the discoverability principle applies, strict application of s. 36(4)(a) might well result in a claim being statute-barred before a person affected could possibly have known of the illegal activity. The right of action would only be resurrected if criminal proceedings – initiated by the state - ensued. As a matter of construction it does not seem possible that Parliament intended the right of action to be illusory. I am not satisfied that the rights conferred by s. 36(1) should be restricted in the fashion AU and Hannstar advocate.[^32]

[119] The moving parties argued that Fanshawe should be precluded from raising this argument in the context of the statutory claim because it was not pleaded. I disagree. AU and Hannstar raised s. 36(4) in their statements of defence and notices of motion. They submit s. 36(4) should be strictly interpreted. Fanshawe maintains that a more liberal interpretation is appropriate. As mentioned, discoverability is "nothing more than a rule of construction".[^33] Rules of construction do not need to be pleaded.

[120] Having concluded that s. 36(4) is subject to discoverability the issue is when Fanshawe learned or ought reasonably to have learned of the offending conduct. For the reasons I have already given, I am of the view that I cannot make dispositive factual findings on this record. All aspects of discoverability as they relate to the statutory and common law claims should be determined at trial.[^34]

[121] In light of my conclusion it is not necessary for me to reach a conclusion with respect to Fanshawe's alternative argument that this action is not statute barred in light of s. 36(4)(a)(ii) of the Competition Act. I reiterate that no criminal proceedings have been commenced in this country in relation to the alleged conduct.

F. Does this action constitute an Abuse of Process?

[122] Although not mentioned in their notices of motion, AU and Hannstar argued in their facta and orally that this action should be dismissed on the grounds it is an abuse of process. They advance two reasons.

[123] First, they note that AU and Hannstar were mentioned as possible co-conspirators in the First Ontario action. For tactical reasons, Taiwanese companies, such as AU and Hannstar, were not made parties. They submit that it was inappropriate for Siskinds to commence this action more than two years later because there were then multiple Ontario proceedings involving the same putative class and alleged co-conspirators. I disagree.

[124] The Rules contain specific provisions that permit the court to consolidate, try together or try sequentially two or more proceedings that raise common questions of fact or law or that seek relief arising from the same series of occurrences.[^35]

[125] Fanshawe was not a representative plaintiff when the First Ontario action was commenced. Michael Harris occupied that position. Fanshawe was added as a plaintiff in September, 2008. It became the sole representative plaintiff in that proceeding in June, 2009.

[126] This action was initiated the following month. It is difficult to understand how the commencement of two actions on behalf of two different – and as far as I can tell independent – plaintiffs could constitute an abuse of process. It seems to me that AU and Hannstar seek to equate Fanshawe with Mr. Harris. They also seek to equate Fanshawe with the lawyers (Siskinds) that have acted throughout. In my view, it is not appropriate to do so.

[127] Procedurally, Fanshawe could have sought an order adding AU and Hannstar as parties to the First Ontario action. Instead it started a second proceeding. AU and Hannstar would have had to respond either way and would have raised and argued the same limitation defences that I have considered on the motions for summary judgment.

[128] If both actions continue, a motion to consolidate them or try both proceedings together may well be brought at some stage of the proceedings. Despite the passage of many years, neither action is very far advanced insofar as the remaining parties are concerned.

[129] Second, AU and Hannstar rely on an affidavit sworn by a lawyer at Siskinds, Linda Visser, in support of a motion to approve an August 2, 2011 settlement agreement entered into with Epson Imaging Devices Corporation ("Epson") in the First Ontario action. The Epson settlement agreement contemplated a release of claims relating to the pricing of LCD panels of all sizes. The First Ontario action had only asserted a claim in relation to 10 inch or larger LCD panels.

[130] My attention was drawn to para. 35 of Ms. Visser's affidavit sworn November 23, 2011. She deposed in part as follows:

During settlement negotiations, Epson was insistent that the settlement release claims for both small and large screen LCD panels and products. In the absence of such a release, a resolution of the litigation would not have been possible. More than five years have passed since information regarding the antitrust authorities' investigations in the LCD industry became public and to my knowledge (aside from the BC and Quebec actions describe [sic] above) there have not been any actions commenced in Canada regarding the pricing of small screen LCD panels.

[131] Ms. Visser went on to say that Siskinds was of the opinion a claim on behalf of purchasers of smaller LCD panels would be difficult to maintain and that the notice of settlement approval hearing had advised putative class members that a release would extend to the pricing of LCD panels of all sizes. The Epson settlement was approved by Tausendfreund J.

[132] AU argued that Fanshawe "elected to rely on the discoverability of the alleged conspiracy in December, 2006 in order to justify the scope of the release" and that Fanshawe could not now contend that it did not discover the claim until later.[^36] Hannstar supported that position.

[133] I need not consider the various authorities cited because I do not accept the premise. Ms. Visser made a factual statement. Investigations into the LCD industry had become "public" in December, 2006. Almost five years had passed. Three proceedings had been commenced in Canada to that point. She went no further. Ms. Visser did not suggest, expressly or by implication, that common law and statutory claims were discovered in December, 2006. The rule against approbation and reprobation on which the moving parties rely is not engaged.[^37]

G. Conclusion

[134] For the reasons given;

a. Fanshawe's motion for leave to file the supplemental affidavit of David Smith sworn October 23, 2014 is dismissed;

b. Nonetheless, the motions for summary judgment are dismissed;

c. Fanshawe is given leave to serve and file the Reply appearing at tab 1 of its motion record within ten (10) days of the release of these reasons.

[135] Brief costs submissions not exceeding five typed pages may be delivered by Fanshawe by no later than April 17, 2015 and by the defendants by no later than May 1, 2015. Any reply shall not exceed two typed pages and may be delivered by no later than May 8, 2015.

"Justice A. D. Grace"

Justice A.D. Grace

Released: March 31, 2015

[^1]: Meaning 10 inch or larger panels measured diagonally [^2]: Intentional interference with economic interests was also plead but counsel for the plaintiff advised that cause of action would not be pursued. [^3]: The action has been resolved insofar as the other defendants are concerned. [^4]: The statement of claim was issued March 6, 2007. [^5]: However, AU Optronics Corporation America was named as a defendant. [^6]: That allegation was set forth in paragraph 38 of the statement of claim. A similar allegation was made in paragraph 67 of the class proceeding commenced in Quebec by Méga-Sat Communications Inc. on June 4, 2007. [^7]: Those powers are given by rule 20.04(2.1). [^8]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 66. [^9]: Huang v. Mai (2014), 2014 ONSC 1156, 119 O.R. (3d) 117 (S.C.J.) at para. 27; Collins v. Cortez, 2014 ONCA 685 at para. [^10]: The Court of Appeal was referring to ss. 2(1) and 51(c) of the CPA. See, too, Farquhar v. Liberty Mutual Insurance Co., [2004] O.J. No. 148 (S.C.J.) at para. 9; Coulson v. Citigroup Global Markets Inc., 2010 ONSC 1596 (S.C.J.) at paras. 66-67, 76 and 128 aff'd 2012 ONCA 108. [^11]: I say that in light of s. 5(2) of the Limitations Act. [^12]: That affiant was Jerry Moscovitch. [^13]: Skrobacky v. Frymer (2011), 2011 ONSC 3295, 16 C.P.C. (7th) 199 (Ont. S.C.J.); Green v. Mirtech International, 2012 ONSC 7500. [^14]: This excerpt is taken from para. 78 of AU's factum. Mr. Smith's evidence was more fairly summarized in para. 69 of the factum. [^15]: Hannstar overstated it too. [^16]: Soper v. Southcott (1998), 1998 CanLII 5359 (ON CA), 39 O.R. (3d) 737 (C.A.); The Bank of Nova Scotia v. PCL Constructors Canada Inc., 2009 CanLII 56303 (Ont. S.C.J.) at paras. 78-80. [^17]: Soper v. Southcott, supra note 16. See, too, Pepper v. Zellers Inc. (2007), 2006 CanLII 42355 (ON CA), 83 O.R. (3d) 648 (C.A.). [^18]: The action was commenced by Judd Eliasoph in the United States District Court, Northern District of California. [^19]: As mentioned, the representative plaintiff in that action is Méga-Sat Communications Inc. [^20]: Coulson v. Citigroup Global Markets Inc., supra note 10 at para. 72. [^21]: Smith v. Inco Ltd. (2011) 2011 ONCA 628, 107 O.R. (3d) 321 (C.A.) at para. 64. [^22]: Section 45 is the applicable section. [^23]: In Fairview Donut Inc. v. The TDL Group Corp., 2012 ONSC 1252 (S.C.J.) at para. 646, Strathy J., as he then was, quoted those paragraphs but without comment. [^24]: Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437 at para. 136; Green v. Canadian Imperial Bank of Commerce (2014), 2014 ONCA 90, 118 O.R. (3d) 641 (C.A.) at para. 47. [^25]: 2012 FCA 48. [^26]: At p. 206. [^27]: This excerpt is drawn from para. 36. See, too, para. 37. [^28]: Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53 at para. 23. [^29]: Wachkowki v. Hopkinson Estate (2000), 2000 CanLII 5646 (ON CA), 47 O.R. (3d) 370 (C.A.). [^30]: Rev'd (2001), 54 O.R. (3d) 920 (Div. Ct.), aff'd (2003), 2003 CanLII 35843 (ON CA), 63 O.R. (3d) 22 (C.A.). [^31]: In Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549 at para. 38, the court concluded that Parliament must use clear language "to displace the general rule of discoverability." That is the test I have applied. [^32]: The Federal Court of Appeal assumed the discoverability principle applied to such claims in Apotex Inc. v. Eli Lilly and Company, 2005 FCA 361 at para. 55. Gauthier J. did as well in Eli Lilly and Company v. Apotex Inc., 2009 FC 991 at para. 750. See too, Grenier v. Canadian General Insurance Co. (1999), 1999 CanLII 2156 (ON CA), 43 O.R. (3d) 715 (C.A.) and Waschkowski v. Hopkinson Estate, supra note 29. [^33]: Fehr v. Jacob (1993), 1993 CanLII 4407 (MB CA), 14 C.C.L.T. (2d) 200 (Man. C.A.) at p. 206. That statement was adopted in Peixeiro v. Haberman, supra note 31. [^34]: Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 CanLII 954 (ON CA), 156 D.L.R. (4th) 222 (Ont. C.A.) at para. 36. [^35]: See rule 6 of the Rules of Civil Procedure. [^36]: This excerpt is taken from para. 59 of AU's factum. [^37]: I was referred to Angelini v. Angelini, 2008 CanLII 151 (Ont. S.C.J.) at paras. 39-46.