Court File and Parties
COURT FILE NO.: 59044CP DATE: 20170724 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Fanshawe College of Applied Arts and Technology, Plaintiff
AND:
Hitachi, Ltd., Hitachi Asia, Ltd., Hitachi America, Ltd., Hitachi Displays Ltd., Hitachi Electronic Devices (USA), Shenzhen Seg Hitachi Color Display Devices Ltd., Hitachi Canada, Ltd., Irico Group Corporation, Irico Group Electronics Co. Ltd., Irico Display Devices Co., Ltd., LG Electronics, Inc., LG Electronics Taiwan Taipei Co. Ltd., LG Electronics USA, Inc., LG Electronics Canada, Panasonic Corporation F/K/A Matsushita Electric Industrial Co. Ltd., Panasonic Corporation of North America, Panasonic Canada Inc., Koninklijke Philips Electronics N.V., Philips Electronics Industries (Taiwan) Ltd., Philips Da Amazonia Industria Electronica Ltda, Philips Electronics North America Corporation, Philips Electronics Ltd., Samsung Electronics Co. Ltd., Samsung Electronics America Inc., Samsung Electronics Canada Inc., Samsung SDI Co., Ltd. (f/k/a Samsung Display Device Co.), Samsung SDI Brasil Ltda, Samsung SDI America, Inc., Samsung SDI Mexico S.A. De C.V., Shenzhen Samsung SDI Co. Ltd., Tianjin Samsung SDI Co., Ltd., Toshiba Corporation, Toshiba America Electronic Components Inc., Toshiba America Information Systems Inc., Toshiba of Canada Limited, Beijing Matsushita Color CRT Company, Ltd., Samtel Color, Ltd and MT Picture Display Co., Ltd., Defendants
BEFORE: Leitch J.
COUNSEL: Charles M. Wright, Andrea DeKay and Linda Visser, for the plaintiff Christopher P. Naudie, Peter Franklyn and Evan Thomas, for the defendants, Koninklijke Philips Electronics N.V., Philips Electronics North America Corporation, Philips Electronics Ltd., Philips Electronics Industries (Taiwan) Ltd., and Philips da Amazonia Industria Electronica Ltda. Subrata Bhattacharjee, Tim Buckley and Gregory McLean, for the defendants, Samsung SDI Co., Ltd. (f/k/a Samsung Display Device Co.), Samsung SDI America, Inc., Samsung Mexico S.A. De C.V., Shenzhen Samsung SDI Co. Ltd., Tianjin Samsung SDI Co., Ltd., and Samsung SDI Brasil Ltda.
HEARD: Written submissions
Endorsement re: leave to appeal the certification decision of Grace J. dated August 12, 2016
[1] The defendants Koninklijke Philips N.B., Philips Electronics North America Corporation, Philips Electronics Ltd., Philips Electronics Industries (Taiwan) Ltd., and Philips D.A. Amazonia Industria Electronica Ltda. (the “Philips defendants”) and the defendants Samsung SDI Co., Ltd. (f/k/a Samsung Display Device Co.), Samsung SDI America, Inc., Samsung Mexico S.A. De C.V., Shenzhen Samsung SDI Co. Ltd., Tianjin Samsung SDI Co., Ltd., and Samsung SDI Brasil Ltda. (the “Samsung defendants”) seek leave to appeal a decision of Grace J. certifying this action as a class proceeding. The Philips defendants and the Samsung defendants (the “defendants”) jointly filed their notice of appeal and supporting materials.
[2] Rule 62.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that leave to appeal to the Divisional Court shall not be granted unless there is a conflicting decision by another judge or court in Ontario or elsewhere and it is desirable that leave to appeal be granted or there is good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that leave to appeal should be granted.
[3] The relevant jurisprudence respecting the test for leave was outlined in the factums filed and need not be reviewed here. As the plaintiff asserts, citing Fischer v. IG Investment Management Ltd., 2013 SCC 69, [2013] 3 S.C.R. 949, at para. 65, and Shah v. LG Chem, Ltd., 2016 ONSC 4670 (Div. Ct.), at para. 43 (“Shah (Leave Decision)”), a certification decision is entitled to deference and intervention by appellate courts at the certification stage should be limited to matters of general principle. However, as the defendants submit, less deference is owed to a certification judge where he or she makes an error on a matter of general principle or a legal error central to the proper application of the certification requirements (see Hodge v. Neinstein, 2015 ONSC 7345, 342 O.A.C. 306 (Div. Ct.), at para. 12).
Preliminary procedural issue
[4] After the plaintiff filed its response to the motion for leave, the defendants filed a reply factum. The plaintiff moves to strike that factum, relying on r. 61.03.1(11) and asserting that its responding factum did not raise an issue on which the defendants had not taken a position.
[5] The plaintiff referenced the interpretation of this rule by the Ontario Court of Appeal in Dennis v. Ontario Lottery and Gaming Corp., 2012 ONCA 368, 110 O.R. (3d) 318, where the court distinguished a new issue raised by the responding party from a new argument on an existing issue. Dennis was followed recently in LBP Holdings Ltd. v. Allied Nevada Gold Corp., 2016 ONSC 5326, at para. 3, where Nordheimer J. commented that the right to file a reply factum is very limited and applies only where a new issue is raised by the responding party.
[6] I am satisfied by the submissions set out in the defendants’ factum filed in response to the plaintiff’s motion to strike, that the reply factum meets the requirements of the rules. I agree with the characterization asserted by the defendants that the reply factum responds to new issues raised by the plaintiff in its factum.
[7] I agree with the defendants that the plaintiff raised the following three new issues in its responding factum: (1) that it is sufficient that the methodology establishing loss be capable of proving harm to some class members at the indirect purchaser level in the distribution chain; (2) that the analysis of the motion judge is entitled to significant deference; and (3) that amendments to the certification order might obviate the need to grant the requested leave.
[8] The plaintiff’s motion to strike the defendants’ reply factum is dismissed.
Background facts
[9] In this case, the plaintiff alleges that the defendants engaged in price-fixing conspiracies for the sale of colour display tubes (“CDT”) and colour picture tube (“CPT”) components produced between 1996 and 2007.
[10] The plaintiff’s claims are based on the statutory cause of action provided in s. 36 of the Competition Act, R.S.C. 1985, c. C-34, and the tort of unlawful means conspiracy based on the alleged breach of the Competition Act. Pursuant to these claims, the plaintiff brought a motion to have the action certified as a class proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”).
The certification decision
[11] The certification judge heard the plaintiff’s certification motion and considered it against the requirements set out in s. 5(1) of the CPA.
[12] The proposed class includes all persons in Canada who purchased CDTs, CPTs, or computer monitors or televisions containing CDTs or CPTs between 1996 and 2007; as such, it includes direct purchasers, indirect purchasers, and “umbrella purchasers”, i.e., those who purchased these products from upstream manufacturers not alleged to have participated in the conspiracies.
[13] The defendants conceded that the plaintiff had pleaded a viable cause of action under s. 36 of the Competition Act, based on a breach of s. 45. However, relying on Perell J.’s certification decision in Shah v. LG Chem, Ltd., 2015 ONSC 6148, 390 D.L.R. (4th) 87 (“Shah (S.C.)”), the defendants argued that the Competition Act contained a complete statutory scheme, thus precluding the plaintiff from advancing the common law claim of unlawful means conspiracy also based on a breach of s. 45.
[14] The certification judge disagreed, holding that this issue had been authoritatively dealt with by the Ontario Court of Appeal in Fanshawe College of Applied Arts and Technology v. AU Optronics Corporation, 2016 ONCA 621, 132 O.R. (3d) 81. He also found that the common law claim was not precluded by the doctrine of merger, as it added to the statutory claim the possibility of claiming punitive damages.
[15] Relying again on Shah (S.C.), the defendants argued that it was plain and obvious that umbrella purchasers do not have a viable cause of action. The certification judge again disagreed. He preferred the reasoning of Masuhara J. in Godfrey v. Sony Corporation, 2016 BCSC 844, and found that it was not plain and obvious that the claims of umbrella purchasers would be unsuccessful.
[16] The certification judge also certified the plaintiff’s proposed common issue of loss and liability under s. 5(1)(c) of the CPA.
The alleged errors of the certification judge justifying leave to appeal asserted by the defendants
[17] The defendants assert in their motion for leave that the certification judge erred:
(i) in concluding that the plaintiff has pleaded a reasonable cause of action on behalf of umbrella purchasers under s. 5(1)(a) of the CPA;
(ii) in concluding that the plaintiff has pleaded a reasonable cause of action for an unlawful means conspiracy under s. 5(1)(a) of the CPA;
(iii) by certifying an over-inclusive class that includes “umbrella purchasers” who have no claim against the defendants, under s. 5(1)(b) of the CPA;
(iv) in finding that the plaintiff had demonstrated “some basis in fact” in respect of its proposed common issues under s. 5(1)(c) of the CPA;
(v) in finding that it was legally sufficient to prove the existence of some harm at each level of the distribution chain to establish a common issue of loss and liability under s. 5(1)(c) of the CPA;
(vi) in failing to correctly apply the “credible and plausible methodology” standard that was adopted by the Supreme Court of Canada in Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477 under s. 5(1)(c) of the CPA. In particular the certification judge erred:
(1) in concluding that an approach that proposed to generate estimates of average price increases and to calculate aggregate damages provides some “basis in fact” that the proposed common issues of loss and liability could be tried on a class-wide basis;
(2) by failing to consider the correct question of whether or not the plaintiff had advanced a “credible and plausible methodology”, grounded in the facts of the case, that is capable of generating a single answer to the question of whether or not each class member has been harmed, based on common evidence;
(vii) in certifying common issues of loss, liability and aggregate damages under s. 5(1)(c) of the CPA;
(viii) in holding that a class proceeding was the preferable procedure for resolving the common issues in this case under s. 5(1)(d) of the CPA; and
(ix) in finding that the plaintiff had proposed a workable litigation plan under s. 5(1)(e) of the CPA.
[18] The defendants also submit that there are conflicting decisions, which will be referenced below.
[19] The materials filed in relation to the plaintiff’s motion to strike the defendants’ reply factum “refine” the issues raised on the leave application. As outlined in these materials, “the focus of the leave factum” is whether the certification judge “had asked the right question”, and whether he “had performed the required underlying analysis necessary to determine whether the plaintiff had advanced a ‘plausible and credible methodology’ for establishing loss to all members of the class”.
[20] The defendants note that in the plaintiff’s responding factum, the plaintiff asserts that the certification judge had asked the right question and argues that the law did not require it to establish a methodology for proving harm to all class members.
[21] In essence, as outlined in their response to the plaintiff’s motion to strike, the defendants argue that the certification judge failed to engage in the inquiry necessary to establish a common issue of loss pursuant to the Supreme Court of Canada’s decision in Microsoft and in particular “did not examine whether the plaintiff has adduced a sufficiently plausible and credible expert methodology that was capable of establishing class wide impact at trial”.
[22] Further, the defendants assert that the certification judge’s specific error was “failing to ask whether the plaintiffs’ expert had adduced an expert methodology that was sufficiently credible or plausible to establish some basis in fact for the commonality requirement”.
[23] As the defendants note, they focus on their submission that the certification judge failed to inquire whether the plaintiff had adduced a sufficiently plausible and credible expert methodology that was capable of establishing class-wide impact at trial in respect of all class members.
The three rulings by the certification judge which the defendants seek leave to appeal according to their factum
[24] As outlined in para. 2 of the factum filed by the defendants, the contentious rulings are as follows:
(i) the ruling that harm and liability can be certified as common issues in a competition class action, notwithstanding the absence of a plausible methodology that is capable of determining whether each class member has been harmed in fact, based on common evidence (which the Philips and Samsung defendants argue is inconsistent with the decisions in Microsoft and Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58, [2013] 3 S.C.R. 545);
(ii) the ruling that umbrella purchasers have a cause of action under the Competition Act (which the defendants note was the subject of an appeal to the Divisional Court in Shah, which has now been heard and reasons released, 2017 ONSC 5286 (“Shah (Div. Ct.)”); and
(iii) the ruling that an alleged violation of s. 45 of the Competition Act can supply the basis for a common law claim for unlawful means conspiracy (the subject of a decision by the Ontario Court of Appeal in AU Optronics, pending leave to appeal to the Supreme Court of Canada).
[25] I propose to deal with the contentious rulings in reverse order.
[26] The Divisional Court’s decision in Shah (Div. Ct.) is significant to the certification judge’s decision that an alleged violation of s. 45 of the Competition Act can supply the basis for a common law claim of unlawful means conspiracy and to his decision that it is not plain and obvious that umbrella purchasers do not have a cause of action under the Competition Act. Therefore I will discuss that decision next.
Shah v. LG Chem, Ltd.
[27] Shah (S.C.) was a certification decision that also involved a proposed class of direct, indirect, and umbrella purchasers for a claim based on a breach of s. 36 of the Competition Act and the tort of unlawful means conspiracy.
[28] In that case, Perell J. denied certification of the unlawful means conspiracy claim and the claims of the umbrella purchasers. On the first issue, Perell J. concluded that the Competition Act did represent a complete statutory scheme in relation to the cause of action and therefore dismissed the unlawful means conspiracy claim.
[29] On the second issue, Perell J. denied the claim of umbrella purchasers. He found that to allow such claimants would be inconsistent with restitutionary law; would subject the defendants to indeterminate and uncircumscribed liability, contrary to legal policy about economic loss torts; would make the defendants liable for the independent pricing decisions of non-defendants; and would fail to advance the tort law purposes of behaviour modification and deterrence of wrongdoing.
[30] The Divisional Court overturned Perell J.’s ruling on the first issue and upheld his ruling on the second. The court dealt with the first issue quickly, finding that AU Optronics was binding authority, and certified the proceeding with respect to the unlawful means conspiracy claim. On the second issue, the court rejected all of Perell J.’s reasons for denying certification of the claims of the umbrella purchasers, except for one: that it would subject the defendants to indeterminate and uncircumscribed liability.
[31] With respect to the rejected reasons, the court concluded that the claim was not inconsistent with restitutionary law as the cause of action is concerned with what the injured person lost, not with what the defendants gained. Second, the court saw nothing wrong with holding the defendants liable for the pricing decisions of non-defendants if causation could be established by the evidence. Finally, the court agreed that the claim would not advance the purposes of deterrence or behaviour modification, but it found that the claim would advance other purposes, such as providing compensation.
[32] With respect to the accepted reason, the court agreed that the umbrella purchasers’ claims would expose the defendants to indeterminate liability, contrary to principle enunciated by the Supreme Court in R. v. Imperial Tobacco Ltd., 2001 SCC 42, [2011] 3 S.C.R. 45. The court decided not to follow Godfrey, finding that it was likely inconsistent with Imperial Tobacco. The court also referenced and disagreed with the motion judge’s conclusion in the certification decision at issue. The court disagreed with the plaintiffs’ submission that indeterminate liability was not a limiting factor for intentional tort claims.
Should leave to appeal be granted on the issue of whether an alleged violation of s. 45 of the Competition Act can supply the basis for a common law claim of unlawful means conspiracy?
[33] The defendants submit that there is conflicting case law regarding whether the Competition Act precludes common law claims based on breaches of the Competition Act and whether such common law claims are precluded according to the doctrine of merger.
[34] In support, the defendants point to the B.C. Court of Appeal’s decision in Wakelam v. Wyeth Consumer Healthcare, 2014 BCCA 36, 54 B.C.L.R. (5th) 7, which found that the Competition Act is a complete code. They also submit that AU Optronics was incorrectly decided and that, since leave to appeal to the Supreme Court has been sought in that case, there is good reason to doubt the correctness of the certification judge’s reliance on that case.
[35] The defendants further argue that there is good reason to doubt the certification judge’s ruling on the issue of the doctrine of merger. They argue that the doctrine of merger applies in this case as the common law claim adds nothing to the statutory claim.
[36] The plaintiff argues that, based on the binding authority of AU Optronics, the Competition Act is not a complete code and a breach of the Competition Act can provide the unlawful element in a claim of unlawful means conspiracy. It notes that the cases relied upon by the defendants (Shah (S.C.) and Wakelam) do not constitute conflicting authority because they were considered and rejected in AU Optronics. Further, the plaintiff asserts that the Ontario Court of Appeal found that Wakelam had been severely restricted when the B.C. Court of Appeal came to the opposite conclusion in its subsequent decision in Watson v. Bank of America Corp, 2015 BCCA 362, 79 B.C.L.R. (5th) 1.
[37] The plaintiff further argues that the doctrine of merger is inapplicable at this point as it is an issue that should be left for trial.
[38] I agree with the plaintiff’s submissions on this issue. The Divisional Court’s decision in Shah (Div. Ct.) confirmed that AU Optronics is binding authority and that the Competition Act is not a complete code. It overturned Perell J.’s ruling on this issue in Shah (S.C.) and certified the proceeding in that case with respect to the unlawful means conspiracy claim. As a result, Shah (S.C.) no longer represents a conflicting decision. Further, given its restriction in Watson, Wakelem also does not represent a conflicting authority. I find that the test for leave to appeal is not met on this issue.
Should leave to appeal be granted on the issue of whether umbrella purchasers have a cause of action under the Competition Act?
[39] The defendants argue that Perell J.’s decision in Shah (S.C.) was the first and most thorough analysis on whether umbrella purchasers have a cause of action under the Competition Act. Since Perell J. decided that umbrella purchasers do not have a cause of action, based on the considerations listed above, and the certification judge decided not to follow that decision, rejecting those considerations, the defendants assert that the certification judge’s decision introduces a conflict into the jurisprudence of the Superior Court.
[40] Further, the defendants submit that Shah (S.C.) was correctly decided and Godfrey – the decision upon which the certification judge relied – was not. According to the defendants, the court in Godfrey took too narrow a view of Imperial Tobacco when it concluded that the concerns for indeterminate liability for economic loss were not compelling. The defendants take the position that such concerns are relevant to the claims of umbrella purchasers under the Competition Act; they were given appropriate weight in Shah (S.C.) and lightly dismissed in Godfrey.
[41] For these reasons, the defendants submit that there is good reason to doubt the correctness of the certification judge’s decision not to dismiss the claims of umbrella purchasers and that leave should therefore be granted on this issue.
[42] On the other hand, the plaintiff argues that, notwithstanding it will be difficult to prove causation in relation to the claims of the umbrella purchasers, this should not preclude it from attempting to do so at the common issues trial. The plaintiff argues that Perell J.’s decision in Shah (S.C.) on this issue is an outlier – it conflicts with other reported decisions that have certified classes that include umbrella purchasers, referencing Fanshawe College of Applied Arts and Technology v. LG Philips LCD Co., 2011 ONSC 2484, aff’d 2015 ONSC 7211 (Div. Ct.); Irving Paper Ltd. v. Atofina Chemicals Inc. (2009), 99 O.R. (3d) 358 (S.C.); Crosslink Technology Inc. v. BASF Canada, 2014 ONSC 1682; Fairhurst v. Anglo American PLC, 2014 BCSC 2270; and Godfrey, at para. 79.
[43] The plaintiff submits that the reasoning in Godfrey is preferable to Shah (S.C.) and that Godfrey is distinguishable from Imperial Tobacco because it dealt with an intentional tort and not a negligence claim. According to the plaintiff, indeterminate liability should not limit intentional tort claims because the defendant’s intention “negatives all excuses and disposes of any question of the remoteness of damages” (see Gershman v. Manitoba (Vegetable Producers’ Marketing Board) (1976), 69 D.L.R. (3d) 114 (Man. C.A.), at p. 119).
[44] However, the Divisional Court in Shah (Div. Ct.) upheld Perell J.’s ruling on this issue, based on the principle that to allow the claims of umbrella purchasers would subject the defendants to indeterminate liability for economic loss.
[45] The certification judge specifically rejected the reasoning in Shah (S.C.), commenting that issues like indeterminate liability should not be assessed at the pleadings stage of the analysis and that Shah (S.C.) “takes the s. 5(1)(a) criteria to a level that goes beyond what a statement of claim reveals”.
[46] The certification judge’s decision is in conflict with Shah (Div. Ct.) on the basis of the principle of indeterminate liability. I am satisfied that it is desirable that leave to appeal be granted. I note that the plaintiff (in its submissions made prior to the Divisional Court’s decision in Shah (Div. Ct.)) submits that to grant leave to appeal on this interlocutory order would be an inefficient use of judicial resources and will only cause unnecessary delays. The plaintiff proposed that depending on the outcomes of the appeals in Shah (S.C.) and AU Optronics the case management judge could amend the certification order.
[47] However, as the defendants observe, the plaintiff made a similar argument on a motion for leave to appeal in Fanshawe College v. Philips, which was rejected by Rady J. Waiting it out with the potential to “re-work” the certification pending appellate decisions could result in onerous and costly discovery and trial processes proceeding unnecessarily, creating a significant waste of time and resources.
[48] I am inclined to the same point of view and am satisfied that given the general importance of the issues, the appeal in this case should be heard even if it overlaps with other appeals. The threshold requirements of r. 62.02(4)(a) are met.
[49] Further, as the defendants point out, citing Bowman v. Rainy River (Town), at para. 17; Supercom of California Ltd. v. Sovereign General Insurance Co. (1998), 37 O.R. (3d) 597 (Gen. Div.); Lemmex v. Bernard, at para. 22; Canadian Egg Agency v. Sunnylea Foods Ltd, [1977] O.J. No. 686 (H.C.), at para. 14; Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.); and Pahl v. Steve Scherer Pontiac Buick GMC Ltd. (2005), 59 C.C.E.L. (3d) 218 (Ont. S.C.), at paras. 2-3, courts have found that a conflicting decision, in and of itself, may provide good reason to doubt the correctness of a decision.
[50] In the current circumstances following Shah (Div. Ct.), there is good reason to doubt the correctness of the order in question and I am satisfied that the threshold requirements of r. 62.02(4)(b) are met.
[51] As a result, I conclude that leave to appeal should be granted in relation to this issue.
Should leave to appeal be granted in relation to the certification judge’s finding that the plaintiff had established the common issue of loss and liability?
[52] As earlier outlined, the defendants argue that the certification judge failed to engage in the inquiry necessary to establish a common issue of loss pursuant to the Supreme Court of Canada’s decision in Microsoft and in particular “did not examine whether the plaintiff has adduced a sufficiently plausible and credible expert methodology that was capable of establishing class wide impact at trial”.
[53] While the defendants acknowledge that the certification judge cited the relevant analytical framework from Microsoft, they argue he failed to apply this framework and erroneously considered whether there was some basis in fact for class-wide harm and not whether the plaintiff had presented a plausible or credible methodology capable of establishing loss on a class-wide basis at trial. The defendants submit that Sun-Rype stands for the proposition that in a price-fixing class action it must be possible to identify which class members, if any, were harmed, unless the plaintiff can show at trial that all were harmed.
[54] The defendants also argue that in any event, Dr. Asher’s proposed multiple regression methodology did not meet the requisite standard as it is only capable of establishing an estimate of the average impact on class members. Therefore, the plaintiff failed to provide a methodology capable of proving which class members were harmed or that all class members were harmed. As a result, they say there is good reason to doubt the correctness of his findings of commonality.
[55] I do not agree with the defendants’ argument that the conclusion of the certification judge clearly indicates that he did not apply the correct test. He outlined the information that Dr. Asher relied on in preparing his reports, the question that Dr. Asher sought to answer, the opinion outlined in the reports, and the factors that led to Dr. Asher’s conclusions. He also referred to Dr. Asher’s evidence that data was available to allow for the calculation of “the overcharge paid by direct purchasers and measure the economic injury suffered on a class-wide basis at each subsequent level of the chain of distribution using a multiple regression analysis”. From this, he concluded that there was “‘some basis in fact’ to establish there was class-wide harm”. While he does not explicitly state that he found the proposed methodology to be sufficiently plausible or credible and capable of establishing the commonality requirement, he stated his “some basis in fact” conclusion following a discussion of the nature of the proposed analysis, the evidence relied upon in the analysis, the projected conclusions from this analysis, and the reasons for those conclusions. I agree with the plaintiff that when this “some basis in fact” conclusion is considered in the context of the analysis as a whole, it is clear that the certification judge did apply the correct test and turned his mind to the sufficiency of the proposed methodology.
[56] With respect to the issue of whether the proposed methodology meets the requirements of Microsoft, the defendants assert that the plaintiff failed to demonstrate that the proposed methodology could establish which class members suffered harm or that all class members suffered harm, an approach required by Sun-Rype. I am not satisfied that Sun-Rype mandates the approach advanced by the defendants and accept the plaintiff’s argument that the certification judge did not err in reaching his finding that that the proposed regression analysis was a plausible methodology for proving class-wide harm.
[57] As a result, I find that the test for leave to appeal is not met in relation to this issue and leave to appeal is not be granted.
“Justice L. C. Leitch” Justice L. C. Leitch Date: July 24, 2017