CITATION: Brant v. De Beers Canada Inc., 2016 ONSC 7515

COURT FILE NO.: 1399/10CP

DATE: 2016/12/01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kirk Brant, Plaintiff

AND:

De Beers Canada Inc., DB Investments, Inc., De Beers S.A., De Beers Consolidated Mines, Ltd. De Beers UK Limited (f/k/a The Diamond Trading Company Limited), CSO Valuations A.G., and De Beers Centenary A.G., Defendants

BEFORE: Justice H. A. Rady

COUNSEL: R. Mogerman and J. Winstanley, for the plaintiff K. Kay, for the defendants A. Tibbs, for Daniel Amazzini and Olson Goldsmiths Inc.

HEARD: October 24, 2106

ENDORSEMENT

[1] This is a multi-jurisdictional action under the Class Proceedings Act. The plaintiff alleges that the defendants engaged in a conspiracy to fix the price of certain diamonds. As I understand the claim, the plaintiff alleges that the defendants controlled the supply of gem grade diamonds in order to increase their price, which in turn resulted in sales in the retail market at inflated prices.

[2] Two law firms - Camp Fiorante Matthews in Vancouver and Siskinds in London - have worked cooperatively to prosecute actions in Ontario and British Columbia. The British Columbia action was commenced on February 22, 2007 on behalf of its residents. The Ontario action was launched on June 1, 2010 on behalf of Canadian residents, except for those from British Columbia. I do not propose to review the procedural history further because it is not germane to my reasons and in any event, it is helpfully summarized in the decisions of Currie J. in Ammazzini et al v. Anglo American et al, 2016 SKQB 53 a decision to which I will return below.

[3] The plaintiffs have reached a resolution with the defendants said to be of all Canadian proceedings, subject to the approval of the Ontario, British Columbia and Québec courts and subject to the disposition of the Ammazzini action in Saskatchewan.

[4] The parties move for an order on consent certifying the class for settlement purposes and for approval of the notices of hearing (i.e. for court approval of the settlement) and the attendant plan for their dissemination. I granted the relief sought in a brief endorsement, which is supplemented with these reasons.

[5] The Ammazzini action was commenced in Saskatchewan on June 23, 2011 and it is said to be advanced on behalf of all Canadian residents (other than those from British Columbia). This action was conditionally stayed by Currie J. on February 17, 2016, pending the outcome of the certification application in Ontario. An appeal from the decision to stay was scheduled to be heard in the Saskatchewan Court of Appeal on November 10, 2016. I do not know the outcome of that hearing at this time. The settlement agreement before me is conditional, however, upon a permanent stay or dismissal of the Saskatchewan action.

[6] Mr. Tibbs, on behalf of the Merchant Law Group, which has carriage of the Saskatchewan action, requested that the hearing before me be adjourned pending the outcome of the appeal in Saskatchewan. I declined to do so for several reasons. First, the settlement is contingent, as I have already noted. Consequently, I see no mischief in proceeding to decide the issue before me at this time. If the appeal is dismissed and the Saskatchewan action remains stayed, the parties will proceed with the settlement hearing and the related motion to be heard in British Columbia. If it is not, the parties will be back to “square one” to put it colloquially. The matter will return to Justice Currie for a determination of the certification motion – or for such other steps as the Saskatchewan Court of Appeal determines. Presumably, the Ontario action will continue toward certification as well. The issue of resolving competing national claims would await another day.

[7] It also bears noting that at the time of the hearing in October, the appeal had not been heard and Justice Currie’s order was then extant. In other words, his order reflected the state of the action at that time.

[8] It is in the interests of the class that the matter proceed as expeditiously as possible, consistent with the philosophy underlying the Class Proceedings Act, which regrettably is observed too frequently in the breach. Given London’s busy docket and my other commitments, it would be challenging for the parties to secure another timely date.

[9] No prejudice to the plaintiffs in the Saskatchewan action is apparent to me. Presumably, they too would wish a resolution sooner rather than later, with compensation coming to them (if approved) instead of continued litigation.

[10] Shortly put, I see no downside to the plaintiffs in the Saskatchewan action.

[11] On the merits of the motion, I am satisfied that the proceedings should be certified because the requirements of s. 5 of the Class Proceedings Act are met. It must be borne in mind that the certification requirements in a settlement context are the same as in a contested hearing. However, it is fair to say they need not be as strictly applied in the settlement context. No doubt part of the rationale is to encourage and promote resolution. Support for this conclusion is found in Osmun v. Cadbury Adams Canada Inc., [2009] O.J. No. 5566 (S.C.J.).

[12] In any event, there is no doubt that the certification criteria are met. A cause of action is clearly and plainly disclosed in the pleadings, arising from an alleged breach of the Competition Act and the tort of conspiracy.

[13] The proposed class is defined objectively and its membership is readily discernible. Inclusion is not dependent on the merits of the claim or the outcome of the litigation. See Nutech Brands Inc. v. Air Canada, [2008] O.J. No. 1065 (S.C.J.).

[14] The claim – for a price fixing conspiracy – by its very nature, raises common legal and factual issues about the existence, extent and effect of the alleged conspiracy. The proceeding is most efficiently advanced in a class action form and a duplication of fact finding and legal analysis is avoided. See Vitapharm Canada Ltd. V. F. Hoffmann – LaRoche Ltd., 2005 CanLII 8751 (ON SC), [2005] O.J. No. 1118 (S.C.J.) and Osmun, supra.

[15] No one could seriously quarrel with the proposition that a class proceeding is the preferable procedure. It promotes the goals of judicial economy, access to justice and behaviour modification.

[16] Finally, there is no suggestion that the proposed plaintiff, Mr. Brant, is not an adequate representative plaintiff.

[17] Turning then to the proposed notices and plan of dissemination, they are acceptable. It is noteworthy that the notices are more consumer friendly than some I have seen in the past. They at least attempt to avoid the use of jargon or “legalese”. Work remains to be done in this area but progress has been made here.

[18] The text of the short form notice is less dense than others and is therefore more readable and understandable. The use of graphics is eye catching and more likely to attract the attention of potential class members.

[19] The plan of dissemination includes publication in a number of newspapers, in a monthly newsletter for the Canadian Jewellers Association, as well as by direct mail and by posting on counsels’ websites. I am satisfied that the proposed plan is adequate.

[20] For these reasons, the motion was granted.

“Justice H. A. Rady”

Justice H. A. Rady

Date: December 1, 2016