COURT FILE NO.:CV-17-00585108-00CP

COURT FILE NO.: CV-18-00607471-00CP

DATE: 20230801

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

VANESSA LILLEYMAN

Plaintiff

• and -

BUMBLE BEE FOODS LLC, CLOVER LEAF HOLDINGS COMPANY, CONNORS BROS CLOVER LEAF SEAFOODS COMPANY, TRI-UNION SEAFOODS LLC o/a CHICKEN OF THE SEA INTERNATIONAL INC., THAI UNION GROUP PUBLIC COMPANY LIMITED, STARKIST COMPANY, DONGWON INDUSTRIES COMPANY LIMITED and DEL MONTE CORPORATION n/k/a BIG HEART PET BRANDS INC.

Defendants

Proceeding under the Class Proceedings Act, 1992

AND BETWEEN:

VANESSA LILLEYMAN

Plaintiff

• and -

LION CAPITAL LLP, LION CAPITAL (AMERICAS) INC., and LION/BIG CATCH CAYMAN LP

Defendants

Proceeding under the Class Proceedings Act, 1992

Kyle R. Taylor, Laurie Graham, Pujan Modi, and Jordan Allison for the Plaintiff

Albert Formosa and Macdonald Allen for the Defendants Tri-Union Seafoods LLC o/a Chicken of the Sea International Inc. and Thai Union Group Public Company Limited

Christopher Hubbard, Madeleine Brown and William Rooney, for the Defendants Del Monte Corporation n/k/a Big Heart Pet Brands Inc.

Chantelle Cseh, Sandra A. Forbes and Henry Machum for the Defendants StarKist Company and Dongwon Industries Company Limited

Kyle R. Taylor, Laurie Graham, Pujan Modi and Jordan Allison for the Plaintiff

Eliot N. Kolers and Sinziana R. Hennig for the Defendants Lion Capital LLP, Lion Capital (Americas) Inc., and Lion/Big Catch Cayman LP

HEARD: June 5-7, 2023

PERELL, J.

REASONS FOR DECISION

Contents

A. Introduction and Overview.. 3

B. Methodology. 5

C. Procedural Background. 6

D. Law and Economics Theory and Terminology. 8

1. Law and Economics. 8

2. Damages for Price Fixing and their Calculation. 12

E. Civil Conspiracy, Breach of the Competition Act, Unjust Enrichment, and Damages. 16

1. Competition Act Claims. 17

2. Civil Conspiracy. 22

(a) The Constituent Elements of Civil Conspiracy. 22

(b) Pleading Civil Conspiracy. 23

3. Unjust Enrichment 25

F. The Theory of the Case. 26

G. Evidentiary Background. 29

1. The Regulatory, Criminal, and Civil Proceedings in the United States. 29

2. Fact Witnesses and Expert Witnesses. 29

3. Challenge to the Evidence of Ms. Buchanan. 31

4. Challenge to the Evidence of Dr. Meer 33

H. Facts. 34

1. The Defendants. 34

2. Economic History of the Canned Tuna Marketplace in Canada and the U.S. 37

3. Miscellaneous Facts. 40

4. Economic Evidence. 42

I. Certification General Principles. 44

1. General Principles. 44

2. The Some Basis in Fact/Merits Tightrope. 46

J. Cause of Action Criterion. 47

1. General Principles. 47

2. Discussion and Analysis: The Cause of Action Criterion. 48

K. Identifiable Class Criterion. 53

1. Identifiable Class Criterion: General Principles. 53

2. Discussion and Analysis: Identifiable Class Criterion. 53

L. Common Issues Criterion. 54

1. General Principles. 54

2. Discussion and Analysis: Common Issues Criterion. 56

(a) The Commonality of Damages to the Putative Class Members. 58

3. Aggregate Damages. 61

(a) Punitive Damages. 62

M. Preferable Procedure Criterion. 63

1. General Principles. 63

2. Discussion and Analysis – Preferable Procedure Criterion. 63

N. Representative Plaintiff Criterion. 64

1. General Principles – Representative Plaintiff Criterion. 64

2. Discussion and Analysis. 64

O. Conclusion. 64

A. Introduction and Overview

[1] This is a certification motion in two proposed competition law class actions under the Class Proceedings Act, 1992[^1] that can be treated as one class action. The plaintiff in both actions is Vanessa Lilleyman. One of Ms. Lilleyman’s actions is Lilleyman v. Bumble Bee Foods LLC et al. The second action is Lilleyman v. Lion Capital LLP et al. The second action is essentially a joinder of additional defendants to the first class action. For certification purposes, the two proposed class actions can be treated as one action.

[2] In both actions, Ms. Lilleyman is a representative plaintiff for direct, indirect, and umbrella purchasers that purchase the brands of canned tuna allegedly sold in Canada by the defendants or their associated corporations or partnerships or equity owners. She alleges that she and the putative Class Members purchased cans of tuna at supracompetitive prices.

[3] Ms. Lilleyman alleges that since 2004, in violation of the Competition Act,[^2] the Criminal Code,[^3] and the competition law of other jurisdictions, including countries in Asia and the United States of America, the defendants and their associated entities conspired together to fix the price of canned tuna sold in Canada, including shelf-stable packaged tuna products sold in cans, pouches, or other packages, by controlling output, price, and other aspects of the manufacture, production, or supply, thereby causing loss or damage to individuals in Canada who purchased canned tuna.

[4] It shall be important to keep in mind, that the quintessence of Ms. Lilleyman’s case is that there was a conspiracy to fix prices in Canada. However, for the reasons that follow, her certification motion is dismissed because there is no basis in fact that the alleged conspiracy to sell canned tuna to Canadian consumers at supracompetitive prices existed.

[5] What was proven on the certification motion is that the participants, the economic history, and the structure of the tuna market in North America is different in Canada than in the United States, where there was a conspiracy to fix the prices of canned tuna. A conspiracy in the United States – but not in Canada – existed. The genuine conspiracy involved: (a) Bumble Bee Foods LLC, (b) Tri-Union Seafoods LLC which operates as Chicken of the Sea Incorporated (“COSI”), and (c) StarKist Company, which was variously owned by different defendants to this action. However, Bumble Bee Foods LLC and COSI were not suppliers to the Canadian marketplace and the StarKist Company had left the Canadian marketplace many years ago. Undoubtedly, there was anti-trust misfeasance and malfeasance in the U.S.’s canned tuna marketplace as demonstrated by a failed industry merger and several criminal convictions in U.S. courts; however, there is no basis in fact to conclude that the same conspiracy existed in Canada, where no regulatory investigation, prosecutions, or punishments have occurred.

[6] Although there was some basis in fact that some of the defendants to this action had perpetrated anti-competitive behaviour in the United States, there was no basis in fact that there was a common issue to be determined about a conspiracy in Canada. The participants, the economic history, and the factual circumstances of the canned tuna marketplace are different in Canada. It appears that the U.S. criminal conspiracy was not copycatted in Canada nor did it extend into Canada.

[7] Apart from the fact that the alleged conspiracy does not exist in Canada or extend into Canada, Ms. Lilleyman’s proposed class action does not satisfy the test for certification as a class action.

[8] All class action certification motions are a battle over the five certification criteria of: (a) cause of action, (b) identifiable class, (c) common issues, (d) preferable procedure, and (e) representative plaintiff. As in most class actions, the arguments of the parties about certification confront each other like battleships in the War of the Atlantic. In the battle in the immediate case, Ms. Lilleyman satisfied the class definition criterion and the representative plaintiff criterion for her class action(s).

[9] However, in the battle in the immediate case, Ms. Lilleyman’s class action battleship was torpedoed when her economics expert, Dr. Meer, was qualified but discredited. Her opinion evidence was correct in theory but wrong in application. Based on the instructions she had been given by Ms. Lilleyman’s lawyers, Dr. Meer’s evidence actually disproved Ms. Lilleyman’s case. Further, Ms. Lilleyman’s proposed class action did not satisfy the cause of action criterion. When the bundled together material facts of her various causes of action were unbundled, the necessary material facts for her various competition law causes of action were either mistaken or missing. Moreover, her proposed class action did not satisfy the common issues criterion for the existence of a conspiracy in Canada, and the action did not satisfy the preferable procedure criterion, and thus her class action battleship sank like the Bismarck.

B. Methodology

[10] To explain why I shall be dismissing Ms. Lilleyman’s certification motion, I shall proceed in the following order of topics:

First, I shall describe the procedural background to the proposed class action(s).

Second, I shall begin with an explanation of some of the conventional economic theory and some law and economics theory about which there is no dispute or there could be no dispute between the parties.

Third, I shall set out the legal background for Ms. Lilleyman’s four causes of action.

Fourth, I shall describe the theory of Ms. Lilleyman’s case in which she advances four economic loss causes of action.

Fifth, I shall describe the evidentiary background and resolve several contentious issues about the admissibility of evidence and the weight to be given the evidence of the witnesses.

Sixth, I shall make my findings of fact.

Seventh, I shall describe the general principles associated with a motion to certify an action as a class proceeding.

Eighth, I shall analyze the cause of action criterion. To foreshadow, my conclusion is that the cause of action criterion is not satisfied.

Ninth, I shall analyze the identifiable class criterion. To foreshadow, my conclusion is that notwithstanding the objections of the Defendants, this criterion is satisfied.

Tenth, I shall analyze the common issues criterion, including a discussion of the availability in the immediate case of methodologies to determine: (a) damages on a class wide basis, and (b) aggregate assessment. To foreshadow, my conclusion is that the common issues criterion is not satisfied.

Eleventh, I shall analyze the preferable procedure criterion. To foreshadow, my conclusion is that the preferable procedure criterion is not satisfied.

Twelfth, I shall analyze the representative plaintiff criterion. To foreshadow, my conclusion is that this criterion, which was not challenged by the Defendants, is satisfied.

The thirteenth topic is the conclusion.

C. Procedural Background

[11] The procedural background to Ms. Lilleyman’s proposed class action(s) is as follows:

[12] On October 24, 2017, Ms. Lilleyman commenced Lilleyman v. Bumble Bee Foods LLC et al. The proposed Class Counsel is Orr Taylor LLP.

[13] The proposed Class Definition is:

All persons or entities residing in Canada who, from January 1, 2008 [changed from January 1, 2004] to the present [say August 1, 2023] (the “Class Period”), purchased canned tuna (including shelf-stable packaged tuna products sold in cans, pouches, or other packages). Excluded from the Class are the defendants and their parent companies, subsidiaries, and affiliates.

[14] The defendants in Lilleyman v. Bumble Bee Foods LLC et al. are:

a. (i) Bumble Bee Foods LLC, (ii) Clover Leaf Holdings Company, and (iii) Connors Bros Clover Leaf Seafoods Company. These defendants, however, are in bankruptcy, and as against them, the action has been stayed. For obvious reasons, their counsels of record did not appear on this certification motion.

b. (i) Tri-Union Seafoods LLC operating as Chicken of the Sea Incorporated (“COSI”) and (ii) Thai Union Group Public Company Limited. (“Thai Union Group”). The counsel of record for these defendants is WeirFoulds LLP.

c. (i) Dongwon Industries Company Limited (“DWI”) and (ii) StarKist Company. The counsel of record for these defendants is Davies Ward Phillips & Vineberg LLP.

d. Del Monte Corporation n/k/a (now known as) Big Heart Pet Brands Inc. From 2002 to 2010, the Del Monte Corporation owned the StarKist brand. The counsel of record for this defendant is McCarthy Tétrault LLP.

[15] On October 23, 2018, Ms. Lilleyman commenced Lilleyman v. Lion Capital LLP et al. The defendants in this action are:

(i) Lion Capital LLP, (iii) Lion Capital (Americas) Inc., and (iii) Lion/Big Catch Cayman LP. Counsel of record for these defendants is Stikeman Elliott LLP.

[16] On September 28, 2021, Ms. Lilleyman issued her Amended Statements of Claim.

[17] Ms. Lilleyman advances four causes of action: (a) breach of Part VI of the Competition Act; (b) conspiracy by unlawful means; (c) predominant purpose to injure conspiracy; and (d) unjust enrichment.

[18] The alleged unlawful means are: (a) conspiring in violation of s. 45 of the Competition Act; (b) giving effect to a foreign directive in violation of s. 46 of the Competition Act; (c) aiding, abetting, and counselling the commission of the above offences in violation of sections 21 and 22 of the Criminal Code; and (d) conspiring in, among other places, the United States and various countries in Asia where it is illegal and contrary to the competition and criminal laws of those jurisdictions.

[19] On behalf of the class, Ms. Lilleyman claims aggregate damages of $250 million and punitive damages of $25 million.

[20] On September 29, 2021, Ms. Lilleyman delivered her motion record for the certification motion (1,004 pages). Her motion was supported by the following evidentiary record:

a. Affidavit dated September 27, 2021 of Vanessa Lilleyman. Ms. Lilleyman of the City of Toronto is the principal of a marketing company that assists small businesses to grow their online platforms. She is a regular purchaser of canned tuna. On average, she purchases canned tuna two to four times a month. During the class period, she purchased Clover Leaf, Ocean Brands, and various in-house supermarket brands, including President’s Choice and No Name (Loblaw’s brands), and Great Value (Walmart’s brand). She bought cans of chunk light tuna, solid white tuna, and other types of canned tuna.

b. Affidavit dated September 28, 2021 of Shireen Meer, Ph.D. Dr. Meer is an economist and director at the Berkeley Research Group, an international economic consulting firm. She works out of its office in Washington, D.C. She has a BSc (Honours) in economics with a minor in mathematics from the Lahore University of Management Sciences and a Masters and Ph.D. in economics from Emory University.

c. Affidavit dated September 29, 2021 of Pujan Modi. Mr. Modi is a lawyer at Orr Taylor LLP, Ms. Lilleyman’s proposed Class Counsel.

[21] The proposed common issues are as follows:

Breach of the Competition Act

1. Are the defendants, or any of them, liable for a breach of s. 45 of the Competition Act?

2. Are the defendants, or any of them, liable for a breach of s. 46 of the Competition Act?

3. Did the Class suffer loss or damage as a result of the defendants’ breach of any provision of Part VI of the Competition Act?

4. Is the Class entitled to recover its aggregate loss or damage pursuant to s. 36 of the Competition Act and, if so, in what amount?

Common Law Conspiracy to Injure

5. Are the defendants, or any of them, liable for conspiracy with the predominant purpose of injuring the Class?

6. Did the Class suffer loss or damage as a result of the defendants’ conspiracy to injure the Class?

7. Is the Class entitled to recover its aggregate loss or damage resulting from the defendants’ conspiracy to injure the Class and, if so, in what amount?

Common Law Conspiracy by Unlawful Means

8. Are the defendants, or any of them, liable to the Class for conspiracy by unlawful means?

9. Did the Class suffer loss or damage as a result of the defendants’ conspiracy by unlawful means?

10. Is the Class entitled to recover its aggregate loss or damage resulting from the defendants’ conspiracy by unlawful means and, if so, in what amount?

Unjust Enrichment

11. Are the defendants, or any of them, liable to the Class for unjust enrichment?

12. What restitution, if any, is payable by the defendants, or any of them, to the Class?

Remedies

13. Are the defendants, or any of them, liable to pay punitive, aggravated, or exemplary damages to the Class and, if so, in what amount?

14. Are the defendants, or any of them, liable to have their profits disgorged and distributed to the Class, and, if so, in what amount?

Interest

15. What is the liability, if any, of the defendants, or any of them, for interest?

Costs

16. Should the full costs of the investigation in connection with this matter, including the cost of the proceeding or any part thereof, be fixed or assessed on an aggregate basis pursuant to s. 36 of the Competition Act and, if so, in what amount?

[22] On October 21, 2022, the Defendants delivered the affidavit dated October 21, 2022 of Lorna Buchanan. Ms. Buchanan of Markham, Ontario was the Vice President of Marketing and Trade Spending of the Defendant, Connors Bros Clover Leaf Seafoods from July 2000 until May 2018. In that role, she was responsible for marketing and trade spending in Canada in relation to packaged seafood, including tuna. She has an Honours BA (commerce) from Laurentian University, and she completed the Executive Leadership program at Ivy Business School at Western University.

[23] Also on October 21, 2022, the Defendants delivered the affidavit of Graham Tester, of the City of London, in the U.K. He is the Chief Financial Officer (“CFO”) of Lion Capital LLP having joined the firm in 2010 as a Financial Controller and moving to Head of Finance in 2013 until 2021, when he became CFO.

[24] On December 21, 2022, Ms. Lilleyman delivered a Reply Motion Record (1,182 pages). The record was comprised of:

a. Supplementary affidavit dated December 21, 2022 of Dr. Meer.

b. Supplementary affidavit dated December 21, 2022 of Mr. Modi.

[25] On February 6, 2023, the Defendants delivered a joint responding motion record (43 pages) containing Ms. Buchanan’s and Mr. Tester’s affidavits.

[26] On February 7, 2023, Dr. Meer was cross-examined.

[27] On February 15, 2023, Ms. Buchanan was cross-examined.

[28] On March 3, 2023, Mr. Tester was cross-examined.

[29] On March 22, 2023, Mr. Modi was cross-examined.

D. Law and Economics Theory and Terminology

1. Law and Economics

[30] In order to understand Ms. Lilleyman’s case theory and to explain the unsuccessful outcome of her proposed class action, it is necessary to have an understanding of: (a) the terminology, i.e., the jargon, used in competition law class actions; (b) conventional microeconomics theory; (c) conventional law and economics theory; and, (d) some legal history about the approach to competition law in Canada and what was known as anti-trust law in the United States.[^4] That discussion of that law and economics background begins in this section of my Reasons and continues throughout these Reasons for Decision.

[31] “Microeconomics” is the part of the social science of economics that studies why and how individuals and businesses make decisions about the value, utilization, and distribution of goods and services and about the efficiencies and inefficiencies of co-operation, competition, production, and trade. The discipline of microeconomics gathers and studies information about the decisions of businesses and consumers and uses mathematical formulae to analyze supply, supply chains, demand, costs, inputs, outputs, prices, incentives, disincentives, and barriers to production and trade. All of economics, including microeconomics, has become infused with a Noble Prize level of pure theoretical mathematics, which is ironic given that Alfred Noble was not interested in mathematics, which he did not regard as a practical science from which humanity could benefit.[^5] Contemporary economists utilize very sophisticated mathematics and statistical analyses far beyond the everyday competence of judges.

[32] In economic theory, a “cartel” is an association of producers of goods that collude, i.e., that conspire together: (a) to fix “output” levels, i.e., to agree as to the quantities of goods to be produced and where and when the goods are to be marketed; and (b) to thereby raise the prices of the goods that the co-conspirators sell to others. The purpose of the cartel is to increase the individual profits of the conspirators by their agreement about output levels.

[33] Economists regard cartels as a type of monopoly, where instead of a single supplier of goods, two or more suppliers agree to cooperate to restrict output forming a quasi monopoly or oligopoly. Economists use the framework of supply and demand to study cartels. Price-fixing cartels are regarded as economically inefficient and anti-competitive.

[34] From the law’s perspective, price-fixing cartels are criminal in some but not all parts of the world. In 1889, the Canadian Federal Government enacted the Act for the Prevention and Suppression of Combinations Formed in Restraint of Trade,[^6] the first anti-cartel statute in the industrial world. The Canadian statute provided for criminal prosecutions but did not have a civil remedy.

[35] In 1890, the following year, at a time when some very large businesses in the United States were described as “trusts”, the United States Government developed “anti-trust” laws that criminalized cartels and also provided for the civil private enforcement of sanctions.

[36] Thus in 1890, in the United States, the government introduced the Sherman Act.[^7] The Sherman Act criminalized conspiracies in restraint of trade and also authorized private anti-trust actions where the plaintiff was entitled to claim treble damages. Section 1 of the Sherman Act states that: “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” To prevail on a claim under s. 1, direct purchasers must show: (1) the existence of an agreement, conspiracy, or combination between two or more entities; (2) the arrangement resulted in an unreasonable restraint of trade under either a per se rule of illegality or rule of reason analysis; and (3) that the restraint affected interstate commerce.[^8] Section 1 does not reach conduct that is wholly unilateral.[^9]

[37] In a point that will be discussed again below in the discussion of the legality or illegality of cartel activity, the critical element of illegality in Canada and in the U.S. is bilateral or multilateral agreement as opposed to unilateral conduct. It is a feature of oligopolistic markets that the individual firms may decide to set their prices at a profit-maximizing, supracompetitive level. If this “conscious parallelism” is done unilaterally, it is not regarded as illegal in the United States[^10] nor in Canada.[^11] The critical element for liability is that by words or deeds, the conspirators came to a meeting of the minds, an agreement about how to set prices.[^12]

[38] In 1910, in Canada, the Anti-Combines Act was replaced by the Combines Investigation Act, 1910.[^13]

[39] In 1976, a statutory civil cause of action was introduced as s. 31.1 of the Combines Investigation Act.[^14]

[40] In 1989, the Supreme Court of Canada ruled that the civil action was constitutionally infra vires the federal government’s trade and commerce power.[^15]

[41] In 1985, the Combines Investigation Act was replaced by the current statute, the Competition Act, which came into force in 1986. The purpose of the current Act is set out in s. 1.1, which states:

Purpose of Act

1.1 The purpose of this Act is to maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy, in order to expand opportunities for Canadian participation in world markets while at the same time recognizing the role of foreign competition in Canada, in order to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy and in order to provide consumers with competitive prices and product choices.

[42] It is now s. 36 of the Competition Act that provides a civil remedy for persons who may be injured by the price fixing.

[43] Substantial amendments were made to the Competition Act in 2009. Those amendments came into effect in 2009 and in 2010, including a new version of s. 45 of the Act, which is the provision of the Act that makes price-fixing a criminal offence.

[44] Where there is a statutory cause of action pursuant to s. 36 of the Competition Act, it will be the court’s task: (a) to determine whether price-fixing occurred; and (b) to calculate and award compensation to those harmed if price-fixing did occur. The co-conspirators are jointly and severally liable for the harm they cause.[^16]

[45] The determinations of whether: (a) there is a price-fixing conspiracy, and (b) the calculation of damages caused by the conspiracy are difficult tasks both from a legal perspective and from an economic perspective. (The legal perspective is discussed later in these Reasons for Decision.) From an economic perspective, in determining whether there is a price-fixing conspiracy, there must be market conditions that are conducive to a cartel forming.

[46] Successful price-fixing cartels manipulate the market’s law of supply and demand and typically reduce outputs (quantities of the product) and thereby increase prices.[^17] Particularly if the commodity has inelastic demand, which is to say that its consumers are unable or unwilling to reduce their demand for the product notwithstanding changes in price, cartels work by the conspirators agreeing to restrict industry output, which, in turn, increases demand, raises prices, and increases profit to the level that maximizes the conspirators’ joint profits.[^18]

[47] For a cartel to be effective, there must be few sellers of the product; i.e., market concentration will be high. The fewer the sellers, the easier to conspire to fix and control prices. Conversely, the more sellers, the more difficult it is to form and sustain the conspiracy. For a cartel to be effective, the market in which the co-conspirators trade should have high barriers for the entry of new competitors.

[48] The members of the cartel must have market power, which is to say that they can control consumer behaviour. Generally speaking, controlling consumer behaviour is possible only if demand for a product is inelastic. Elasticity is a measure of how consumers’ demand responds to changes in price. Where a product has elasticity, consumers will respond to price increases by reducing their demand for the product.

[49] For a cartel to be effective, the goods that are the subject of the conspiracy will not have substitutes or alternatives to satisfy the consumer demand. The goods will have high inelasticity (low elasticity) because there are no substitutes for the consumer to turn to when the price of the goods increases.

[50] For a cartel to be effective, the goods that are the subject of the conspiracy will be homogeneous; i.e., so similar that price rather than product features will drive consumer demand for the product.

[51] Cartels inherently are confronted by characteristic problems. The first problem is that where cartels are illegal, efforts must be taken to hide the conspiracy from detection. The second problem is that the group of conspirators must have sufficient market power to affect the prices of products across the market. A third problem is that the scheme may be foiled if new competitors enter the marketplace and thus the conspirators must be able to prevent the entry of new competitors. A fourth problem is that the conspirators must dissuade their own members from leaving the cartel. A fifth problem is that the conspirators must be able to monitor each other’s activities to ensure that there is no cheating by producing too much output. Cheating can be very profitable for a conspirator and if enough conspirators cheat, then the cartel fails and indeed may leave the conspirators worse off.

[52] Professors T.S. Ragan (McGill University) and R.G. Lipsey (Simon Fraser University) describe the problems confronted by cartels as follows:

This conflict between the interests of the group as a whole and the interests of each individual firm is the cartel’s main problem. Provided that enough firms cooperate in restricting output, all firms are better off than they would be if the industry remained perfectly competitive. Any one firm, however, is even better off if it remains outside or if it enters and cheats. However, if all of the firms act on this incentive, all will be worse off than if they had joined the cartel and restricted output.[^19]

2. Damages for Price Fixing and their Calculation

[53] Turning to how economic theory and the law calculates the damages caused by price fixing, goods typically move through a supply chain where the manufacturer or the producer sells its goods to others. The first purchaser is known as the “direct purchaser”. The direct purchaser is damaged by a cartel’s price fixing to the extent that the direct purchaser purchases the goods at supracompetitive prices; i.e., at prices higher than would be the case but for the price fixing.

[54] In economic jargon the calculation of the damages for price fixing (and several other calculations of economic harm) is referred to as a “counterfactual.” Measuring the economic effect of good or bad economic behaviour is no simple task, and what lawyers blithely describe as “the but for world” of damages for price fixing requires complex theoretical, mathematical, and statistical analyses. The calculation of damages for price fixing is a factual matter for which expert evidence is necessary because this is not an area where a judge can be expected to have the knowledge or the experience to determine the facts.

[55] It should immediately be appreciated that the “but for” world does not exist and is an economist’s abstraction or estimation of what might have been the case if there had not been a price-fixing conspiracy. There are many complexities. It is an oversimplification to presume that the but for price would be the price that would arise under perfect competition, which rarely exists. Most markets have some degree of market imperfection that would explain without violation of competition law why the price in the market price is higher than the competitive price.

[56] For example, as recent experience during the Covid-19 pandemic has demonstrated disruptions in the supply chain can explain higher prices for goods. Changes in exchange rates, industry-specific shocks to supply or demand or labour or to the costs of inputs, the consolidation of suppliers, and general business conditions will affect prices. There is also the difficulty of determining the starting point of the affect of the price fixing.

[57] The harm caused by price-fixers to their direct purchasers, however, may not be the end of the calculation of the harm that price-fixers cause because the harm may extend to “indirect purchasers” and to “umbrella purchasers.”

[58] The direct purchaser may be the end consumer, but that will not be the case if the direct purchaser is a distributor, wholesaler, or retailer reselling the goods it purchased from the price fixers, in which case, the direct purchaser will resell the goods to an “indirect purchaser”. The direct purchaser might also incorporate the goods from the price-fixers as an “input,” the economic jargon for “raw materials or components” of its own manufacturing. The direct purchaser will sell its own product down the supply chain to “indirect purchasers” of the price fixer’s goods. In either case, the direct purchaser may pass on the harm suffered by it having paid a supracompetitive price.

[59] In Canada, indirect purchasers are entitled to claim damages to the extent that they share the harm caused by the price fixing.[^20] The calculations of the damage caused by price fixing becomes more complicated if the direct purchaser may have “passed on” the harm to others in the supply chain of the price-fixed product. In other words, if a direct purchaser decides to ameliorate its damages suffered from having paid supracompetitive prices by passing on the increased price in whole or in part to its indirect purchasers, then the “indirect purchasers” will also be harmed by the price-fixing conspiracy. This pattern may repeat itself until the goods reach an end consumer.

[60] In the United States – but not Canada – the complexities of calculating the damages from price fixing led to a legal policy decision to just allow claims by direct purchasers and to ignore what has been called the “passing on defence.” The passing on defence was that the direct purchasers should not recover for damages that they have passed on. The American regime in which only the direct purchasers’ damages are calculated was established by Hanover Shoe, Inc. v. United Shoe Machinery Corp.,[^21] and Illinois Brick Co. v. Illinois.[^22]

[61] In Canada, the passing on defence does not exist,[^23] and the courts allow claims by direct purchasers, indirect purchasers,[^24] and by “umbrella purchasers.”[^25] Umbrella purchasers purchase the same goods or competing (i.e., substitutable similar) goods from vendors that are not co-conspirators with the price fixers but who advertently or inadvertently take advantage of the fact that the price fixers have elevated the price of the goods. Colloquially, this opportunism is based on the metaphor that a high tide rises all boats. In other words, the vendors who are not part of the price-fixing conspiracy can offer their goods to consumers at higher prices than they would but for the price-fixing conspiracy and thus their purchasers, the “umbrella purchasers” pay supracompetitive prices.

[62] Umbrella purchasers do not include purchasers of different products that are not substitutes of the product whose price has been manipulated by price-fixing activities.[^26]

[63] With direct, indirect, and umbrella purchasers to be considered, the calculation of the harm caused by price fixing is a very-very complicated counterfactual calculation of the “but for” world. Courts inevitably require the assistance of expert evidence for this complicated calculation. It will also be a contested calculation because each side will proffer its own independent expert and those opinions typically will not agree about whether the alleged conspiracy had any effect on the price of goods.

[64] The calculation of damages in price-fixing cases involves a cascading series of calculations that depend upon the operation of the marketplace in the particular circumstances of the case. The damages cascade because the impact of the price fixing may be felt by: (a) direct purchasers, those who purchased from the price fixer; (b) indirect purchasers, those who purchased from a direct purchaser who is not a price fixer; and (c) umbrella purchasers, those who purchased comparable goods from a manufacturer or vendor who is not a defendant. (In the immediate case, the putative class members include direct, indirect, and umbrella purchasers of canned tuna.)

[65] The first calculation of the cascading calculation of damages caused by price fixing is determining what did direct purchasers of the goods pay for the goods sold by the price fixer(s). Making this calculation will require the assistance of economists. The second calculation, which requires the assistance of an economist, is to measure what the direct purchasers would have paid for those goods but for the price fixing.

[66] In the cascading calculation, the measure of damages to the direct purchasers is the difference between what they actually paid for the goods less what they would have paid but for the price fixing, unless the direct purchasers passed on in whole or in part the price increase to their customers in which case the calculation of the direct purchasers’ damages would have to take into account that: (a) the direct purchasers did not suffer in whole or in part the harm caused by the price-fixing cartel and rather passed on the harm to their customers, and (b) depending on the price elasticity, whether the direct purchasers having passed on the price increase in the goods have reduced sales of their goods.

[67] Thus, if the direct purchasers do not pass on the price increase, they will have a claim for damages, and if the direct purchasers pass on the price increase in part they will have a claim for the damages suffered that were not passed on to the indirect purchasers. If the direct purchasers do pass on the price increase in whole or in part, then their customers, the indirect purchasers, will pay higher prices but for the price-fixing and they will have a claim for the damages suffered by them.

[68] The calculation of the indirect purchasers’ damages will require the assistance of experts in economic analysis and may become quite complicated because the indirect purchasers may in turn pass on in whole or in part the price increase to their customers. End consumers are a type of indirect purchaser in the chain of distribution, and they will have a claim for damages.

[69] Several illustrations of the complexity of calculating the damages caused by price fixing follow.

[70] In the first illustration, the direct purchasers of a product pay $11 each for 100 units of a product ($1,100), but they would have paid $10 per unit ($1,000) but for the cartel’s price fixing. The direct purchasers do not pass on the extra cost. In this first illustration, the direct purchasers’ damages would be $100, and the indirect purchasers’ damages would be nil.

[71] In the second illustration, the direct purchasers of a product pay $11 each for 100 units of product ($1,100), but they would have paid $10 per unit ($1,000) but for the cartel’s price fixing. The direct purchasers pass on the whole price increase, but because of high elasticity for the goods, they sell only 75 units, the direct purchaser would suffer nil damages for the 75 units sold and it would be the indirect purchasers who would overpay $75, which would be the measure of their damages. (In this example, the direct purchasers would also suffer a loss of profits from selling 25 fewer units. This type of loss of profits claim is available under the competition laws of the European Union.)

[72] In the third illustration, with the same factual underpinning, the direct purchasers pass on half of the price increase, but because of the high inelasticity of the goods, 100 units are sold. In this example, the damages caused by the cartel would be shared; the direct purchasers would suffer $50 damages and the indirect purchasers would suffer $50 in damages.

[73] In the fourth illustration, with the same factual underpinning, if the direct purchasers pass on half of the price increase but because of the high elasticity of the goods, only 75 units are sold, the direct purchasers would suffer $37.50 dollars damages and the indirect purchasers would suffer $37.50 in damages.

[74] Canadian law accepts that there can be hybrid claims of a class comprised of direct and indirect purchasers.[^27] Canadian law also accepts that umbrella purchasers may but do not necessarily have a claim to the damages they suffered from the price fixing.[^28]

[75] The theory behind making the price fixers liable for the harm suffered by umbrella purchasers is that their anti-competitive behaviour has affected the market behaviour of others creating an umbrella of supracompetitive prices causing the non-cartel suppliers to raise their prices.[^29] The economic theory of umbrella effects is based on the idea of product substitutability. In the Supreme Court of Canada’s decision in Pioneer Corp. v. Godfrey,[^30] Justice Brown stated:

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

Umbrella effects typically arise when price increases lead to a diversion of demand to substitute products. Because successful cartels typically reduce quantities and increase prices, this diversion leads to a substitution away from the cartels' products toward substitute products produced by cartel outsiders... . [T]he increase demand for substitutes typically leads to higher prices for the substitute products. Such price increases are called umbrella effects and may arise either in the same relevant market ... or in neighboring markets. (R. Inderst, F. Maier-Rigaud & U. Schwalbe, "Umbrella Effects" (2014) 10 J. Competition L. & Econ. 739, at p. 740.)

[76] Although the umbrella claims may reflect real economic loss, the loss may not be a provable loss in a legal sense and represent what economists label a "deadweight loss," which is a cost to borne by society created by market inefficiency, which occurs when supply and demand are out of equilibrium such as in a price-fixing arrangement, and consumers opt for alternative purchases; courts must consider such diffuse economic loss to be unfortunate but unrecoverable because causation in the but for sense that the law requires will be unprovable.[^31]

E. Civil Conspiracy, Breach of the Competition Act, Unjust Enrichment, and Damages

[77] In this section of my Reasons for Decision, continuing the discussion of law and economics, I describe the legal background needed to analyze the certification criteria and Ms. Lilleyman’s four causes of action. I do this before setting out Ms. Lilleyman’s case theory and before making my findings of fact. I postpone setting out the facts because the factual background can only be understood contextually, and the context involves first understanding some economic theory, the discussion of which began above, and also knowledge of the law associated with civil conspiracy, breach of the Competition Act, unjust enrichment, and the calculation of damages, which continues below. It is necessary to have an understanding of the complex legal background to understand the material facts and the causes of action advanced in Ms. Lilleyman’s proposed class action.

[78] Moreover, it necessary to have an understanding of the legal background to understand the challenges made to the evidence of Dr. Meer and of Ms. Buchanan and the significance of those challenges to the determination of whether Ms. Lilleyman’s proposed class action satisfies the certification criterion. Further, it is necessary to have an understanding of the complicated legal background to understand why Ms. Lilleyman’s proposed class action fails to satisfy the cause of action criterion, the common issues criterion, and the preferable procedures criterion.

[79] Ms. Lilleyman advances four causes of action: (a) breach of Part VI of the Competition Act; (b) unlawful means conspiracy; (c) predominant purpose to injure conspiracy; and (d) unjust enrichment. She alleges two breaches of Part VI of the Competition Act, i.e., breaches of sections 45 and 46. The breaches of these sections of the Act are a conspiracy by unlawful means and a basis for a statutory cause of action under s. 36 of the Competition Act.

1. Competition Act Claims

[80] At the heart of Ms. Lilleyman’s proposed class action are the alleged breaches of sections 45 and 46 of the Competition Act. Since s. 45 of the Competition Act was amended in 2010 and since the class period begins in 2008 and continues past 2010, both versions of s. 45 of the Competition Act are aspects of Ms. Lilleyman’s causes of action.

[81] For present purposes, the pertinent difference between the old and the current version of s. 45 of the Competition Act is that before March 2010, s. 45 prohibited agreements that “unduly lessened” competition or “unreasonably enhanced” prices, but after March 2010, s. 45 prohibits agreements made by competitors to fix prices. Under the old s. 45, plaintiffs had to show that the agreement had an undue or unreasonable economic impact on consumers. Under the current agreement, plaintiffs need to show an agreement and damages arising from that agreement.

[82] Thus, under the current s. 45 of the Competition Act, a price-fixing conspiracy is per se illegal while under the old s. 45, courts had to determine whether the defendants had the market power to harm and the extent to whether the defendant unduly lessened competition or unreasonably enhanced prices.[^32] Under the old s. 45 of the Competition Act, potential defendants were anyone who conspired to unduly lessen competition or unreasonably enhance prices, while under the current s. 45, the defendants must be competitors which is defined under the Act as including a person who it is reasonable to believe would be likely to compete with respect to a product.

[83] For present purposes, the relevant portions of the Competition Act are therefore s. 36, s. 45 (old version), s. 45 (new version) and s. 46 which state:

Recovery of damages

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

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

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

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

Evidence of prior proceedings

(2) In any action under subsection (1) against a person, the record of proceedings in any court in which that person was convicted of an offence under Part VI or convicted of or punished for failure to comply with an order of the Tribunal or another court under this Act is, in the absence of any evidence to the contrary, proof that the person against whom the action is brought engaged in conduct that was contrary to a provision of Part VI or failed to comply with an order of the Tribunal or another court under this Act, as the case may be, and any evidence given in those proceedings as to the effect of those acts or omissions on the person bringing the action is evidence thereof in the action.

Limitation

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

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

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

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

whichever is the later; and

(b) in the case of an action based on the failure of any person to comply with an order of the Tribunal or another court, after two years from

(i) a day on which the order of the Tribunal or court was contravened, or

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

whichever is the later.

Conspiracy

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

(a) to limit unduly the facilities for transporting, producing, manufacturing, supplying, storing or dealing in any product,

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

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

(d) to otherwise restrain or injure competition unduly,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten million dollars or to both. [emphasis added]

Idem

(2) For greater certainty, in establishing that a conspiracy, combination, agreement or arrangement is in contravention of subsection (1), it shall not be necessary to prove that the conspiracy, combination, agreement or arrangement, if carried into effect, would or would be likely to eliminate, completely or virtually, competition in the market to which it relates or that it was the object of any or all of the parties thereto to eliminate, completely or virtually, competition in that market.

Evidence of Conspiracy

(2.1) In a prosecution under subsection (1), the court may infer the existence of a conspiracy, combination, agreement or arrangement from circumstantial evidence, with or without direct evidence of communication between or among the alleged parties thereto, but, for greater certainty, the conspiracy, combination, agreement or arrangement must be proved beyond a reasonable doubt.

Proof of intent

(2.2) For greater certainty, in establishing that a conspiracy, combination, agreement or arrangement is in contravention of subsection (1), it is necessary to prove that the parties thereto intended to and did enter into the conspiracy, combination, agreement or arrangement, but it is not necessary to prove that the parties intended that the conspiracy, combination, agreement or arrangement have an effect set out in subsection (1).

Conspiracies, agreements or arrangements between competitors

45 (1) [current] Every person commits an offence who, with a competitor of that person with respect to a product, conspires, agrees or arranges

(a) to fix, maintain, increase or control the price for the supply of the product;

(b) to allocate sales, territories, customers or markets for the production or supply of the product; or

(c) to fix, maintain, control, prevent, lessen or eliminate the production or supply of the product.

Penalty

(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable on conviction to imprisonment for a term not exceeding 14 years or to a fine not exceeding $25 million, or to both.

Evidence of conspiracy, agreement or arrangement

(3) In a prosecution under subsection (1), the court may infer the existence of a conspiracy, agreement or arrangement from circumstantial evidence, with or without direct evidence of communication between or among the alleged parties to it, but, for greater certainty, the conspiracy, agreement or arrangement must be proved beyond a reasonable doubt.

Definitions

(8) The following definitions apply in this section.

competitor includes a person who it is reasonable to believe would be likely to compete with respect to a product in the absence of a conspiracy, agreement or arrangement to do anything referred to in paragraphs (1)(a) to (c).

price includes any discount, rebate, allowance, price concession or other advantage in relation to the supply of a product.

Foreign directives

46 (1) Any corporation, wherever incorporated, that carries on business in Canada and that implements, in whole or in part in Canada, a directive, instruction, intimation of policy or other communication to the corporation or any person from a person in a country other than Canada who is in a position to direct or influence the policies of the corporation, which communication is for the purpose of giving effect to a conspiracy, combination, agreement or arrangement entered into outside Canada that, if entered into in Canada, would have been in contravention of section 45, is, whether or not any director or officer of the corporation in Canada has knowledge of the conspiracy, combination, agreement or arrangement, guilty of an indictable offence and liable on conviction to a fine in the discretion of the court.

Limitation

(2) No proceedings may be commenced under this section against a particular company where an application has been made by the Commissioner under section 83 for an order against that company or any other person based on the same or substantially the same facts as would be alleged in proceedings under this section.

[84] The actus reus of the breach of s. 45 is set out in the statute. The mens rea element is that (a) the defendant had a subjective intention to agree and was aware of the agreement’s terms; and (b) the defendant had the objective intention that a reasonable business person would or should be aware that the likely effect of the agreement would be to lessen competition unduly.[^33]

[85] The critical liability element of the old s. 45 and the current s. 45 and all its predecessors is that the defendant entered into a bilateral or multilateral agreement. The critical element for liability is that by words or deeds, the conspirators came to a meeting of the minds and formed an agreement that has been criminalized by the Competition Act.[^34] The agreement may be proven by an oral or written agreement or the agreement may be proven by the conduct of the parties showing that they communicated and came to a meeting of the minds as to how they would respectively conduct their affairs in the marketplace in a way that would increase the price of their goods and respectively increase their own profits.[^35]

[86] There is a very subtle but critically important aspect of the formation of an illegal conspiracy that is associated with the necessity of multilateral conduct. The subtle and critically important aspect is that unilateral economic conduct may have the appearance of multilateral conduct because of what has been called “conscious parallelism”. It is a feature of oligopolistic markets that the individual firms may decide to set their prices at a profit-maximizing, supracompetitive level by simultaneous unilateral conduct. In Jensen v. Samsung Elec. Co. Ltd.,[^36] at paragraphs 30 and 104, Justice Gascon described “conscious parallelism” as follows:

30. […] Broadly speaking, conscious parallelism refers to situations where, in the absence of an agreement to limit competition, competitors unilaterally adopt similar or identical business practices or pricing, as a result of rational and profit-maximizing strategies based on observations of market trends and activities of competitors. This type of conduct is frequent in oligopolistic markets where competitors base their actions in part on the anticipated reactions of their rivals. […]

31. […] Conscious parallelism refers to those situations where, in the absence of an agreement, competitors unilaterally adopt similar or identical business practices or pricing, as a result of rational and profit-maximizing strategies based on observations of market trends and activities of each other’s past behaviour. Such parallel conduct is frequent in oligopoly markets where leading firms may closely monitor their rivals’ reactions to changes in their behaviour, and each firm accounts for the reaction of others in deciding on prices, production and output. […]

[87] If this “conscious parallelism” is done unilaterally, it is not regarded as illegal in the United States[^37] or in Canada.[^38] A pricing policy resulting from conscious parallelism, if conducted without collusion, does not constitute a conspiracy offence.[^39] [^40]

[88] For present purposes, this is sufficient legal background for understanding the operation of s. 45 of the Competition Act and the discussion can move on to s. 46. Section 46 of the Competition Act addresses the circumstance of a business in Canada implementing a conspiracy in Canada that was entered into outside Canada. Pursuant to s. 46, any corporation that carries on business in Canada and that implements in Canada, a directive from a person outside Canada to give effect to a conspiracy entered into outside Canada that would in Canada be a contravention of s. 45 is guilty of an indictable offence and liable on conviction to a fine in the discretion of the court.[^41]

[89] A breach of sections 45 and 46 can establish the basis for a statutory cause of action under s. 36 of the Competition Act. The constituent elements of the statutory cause of action under s. 36 of the Competition Act are: (a) a breach of an offence under Part VI of the Act and (b) damages consequent from that breach.

[90] As should have become apparent from the discussion above about the measurement of damages, for the indirect purchasers and umbrella purchasers proof of the passing-on of a supracompetitive price from the direct purchaser is a constituent element of their claim under s. 36,[^42] because it is only if the direct purchasers pass on the supracompetitive prices in whole or in part that the indirect purchasers suffer damages. In class proceedings, indirect purchasers and umbrella purchasers bear the burden of establishing that the pass-through effects reach the class.[^43]

[91] There are two final points to make about s. 36 of the Competition Act.

[92] First, the damages remedy for a breach of the statutory cause of action established by s. 36 of the Competition Act is comprehensive and precludes other remedies such as injunctions and punitive damages.[^44] To pursue additional remedies, victims of a breach of the Competition Act, typically join the s. 36 claim with common law economic torts such as negligent misrepresentation, interference with economic rights and civil conspiracies of which there are two types. The existence of conspiracy claims based on the Competition Act does not oust the complementary common law conspiracy claims.[^45] Conspiracy claims for breach of the Competition Act or for common law conspiracy require proof of loss as an element of liability.[^46]

[93] Second, the limitation period prescribed by s. 36(4)(i) is subject to the discoverability principle.[^47]

2. Civil Conspiracy

(a) The Constituent Elements of Civil Conspiracy

[94] In the immediate case, in addition to her statutory cause of action under s. 36 of the Competition Act, Ms. Lilleyman advances both types of the common law’s economic tort of civil conspiracy.

[95] The elements of a claim of civil conspiracy are: (1) two or more defendants make an agreement to injure the plaintiff; (2) the defendants: (a) use some means (lawful or unlawful) for the predominant purpose of injuring the plaintiff, or (b) use unlawful means with knowledge that their acts were aimed at the plaintiff and knowing or constructively knowing that their acts would result in injury to the plaintiff; (3) the defendants act in furtherance of their agreement to injure; and, (4) the plaintiff suffers damages as a result of the defendants’ conduct.[^48]

[96] The second element of a civil conspiracy cause of action has come to identify two distinct types of civil conspiracy, i.e., (a) the illegal means conspiracy; and (b) the predominant purpose of injuring the plaintiff conspiracy.

[97] Sections 45 and 46 of the Competition Act are about conspiracies. For the purposes of determining whether Ms. Lilleyman’s proposed class action satisfies the cause of action criterion, it is necessary to analyze three conspiracy scenarios; namely: first, the breaches of the old s. 45 and s. 46 of the Competition Act, which would constitute an unlawful means conspiracy; second, the breach of the current s. 45 and s. 46 of the Competition Act, which would constitute an unlawful means conspiracy; and, third, if there are no breaches of sections 45 and 46, the predominant purpose to injure conspiracy.

[98] What is required to meet the unlawful means element of the tort of conspiracy is that each of the defendants engage in conduct that is wrong in law.[^49] Conduct that is wrong in law is of two types: (a) conduct that is actionable as a matter of private law such as breach of contract, misrepresentation, intentional interference with economic relations, wrongful interference with contractual rights, nuisance, intimidation, and defamation; and (b) conduct that is illegal such as criminal conduct, quasi-criminal conduct, and breach of a statute that does not grant a private right of action.[^50] A breach of Part VI of the Competition Act can constitute the unlawful means element of a civil conspiracy.[^51]

[99] To make out a conspiracy to injure, the defendant’s predominant purpose must be to inflict harm on the plaintiff. It is not enough if harm is the collateral result of acts pursued predominantly out of self-interest. The focus is on the actual intent of the defendants and not on the consequences that the defendants either realized or should have realized would follow.[^52] Unless an unlawful means is used, an ordinary commercial transaction or business competition designed to advance one’s economic interests, does not constitute a conspiracy to injury even though the complaining party may suffer an economic loss as a result.[^53]

[100] The major hurdle for the plaintiff alleging a conspiracy to injure where the conduct of the defendant is not otherwise unlawful is that the plaintiff must show that the predominant purpose of the lawful conduct was to harm the plaintiff. Where the defendants are predominately motivated by their own self-interests, they are not liable even if the plaintiff is harmed by their conduct.[^54]

(b) Pleading Civil Conspiracy

[101] In Normart Management Ltd. v. West Hill Redevelopment Co Ltd.,[^55] at paragraph 21, the Court of Appeal described how to plead a claim in civil conspiracy, as follows:

21. The statement of claim should describe who the several parties are and their relationship with each other. It should allege the agreement between the defendants to conspire, and state precisely what the purpose or what were the objects of the alleged conspiracy, and it must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and lastly, it must allege the injury and damage occasioned to the plaintiff thereby.

[102] In pleading a conspiracy, material facts actions in furtherance of the conspiracy must be connected to the actors; in a conspiracy pleading, it is necessary to set out discretely the particular acts of each co-conspirator so that each defendant can know what he or she is alleged to have done as part of the conspiracy.[^56] A recitation of a series of events coupled with an assertion that they were intended to injure is insufficient, and it is not appropriate to group some or all of the defendants together into a general allegation that they conspired to injure the plaintiff.[^57]

[103] Conspiracy allegations require particularity, including details of the acts alleged against each defendant. Pleadings of conspiracy cannot boil down to mere speculation or to a fishing expedition to find a cause of action, and if the plaintiff does not, at the time of pleading have knowledge of the facts necessary to support the cause of action, then it is inappropriate to make the allegations in the statement of claim.[^58]

[104] Each individual defendant is entitled to know the case they must meet; this is particularly true for the conspiracy pleading because, although conspiracy is a tort committed by a group, the liability of each defendant arises because they individually participated as a member of the group.[^59]

[105] A conspirator is not liable vicariously for what somebody else did; rather, there is a direct joint and several liability and the conspirator is liable for having participated and contributed to the conspiracy. All participants in a conspiracy are jointly liable for the damages resulting from the conspiracy, regardless of the degree of their participation or the date on which they joined the conspiracy.[^60]

[106] In pleading a conspiracy claim, where the alleged conspirators are associated corporations, the separate corporate legal personalities of the alleged conspirators must be respected and their individual roles in furtherance of the conspiracy particularized, unless there is an exception to the foundational principle of corporate law that corporations are autonomous legal entities separate from their shareholders.[^61] A parent, associated corporation, or a shareholder is not a co-conspirator unless it participated in furtherance of the conspiracy or it is appropriate to ignore the separate legal identities.[^62]

[107] As a fundamental general rule of corporate law, a corporation is a legal entity distinct from its shareholders.[^63] The separate legal personality of the corporation, however, is not lightly disregarded and a shareholder is liable for the wrongs of a corporation only in very limited circumstances. In order to pierce the corporate veil, two factors must be established: (1) the alter ego must exercise complete control over the corporation or corporations whose separate legal identity is to be ignored; and (2) the corporation or corporations whose separate legal identity is to be ignored must be instruments of fraud or a mechanism to shield the alter ego from its liability for illegal activity. The separate existence of a corporation may be ignored when the corporation is under the complete control of the shareholder and its existence is being used as a means to insulate the shareholder from responsibility from fraudulent or illegal conduct. The corporate veil may be pierced when the corporation is incorporated for an illegal, fraudulent, or improper purpose, or where respecting the separate legal personality of the corporation would be flagrantly unjust.[^64]

3. Unjust Enrichment

[108] In the immediate case, Ms. Lilleyman advances an unjust enrichment claim. The elements of a cause of action for unjust enrichment are: (1) the defendant has been enriched; (2) the plaintiff has suffered a deprivation that corresponds to the defendant’s enrichment; and (3) the absence of any juristic reason justifying the defendant’s retention of that transfer of value.[^65]

[109] In Moore v. Sweet,[^66] the Supreme Court of Canada stated that for an unjust enrichment, it must be shown that something of value – a tangible ‘benefit’ – passed from the plaintiff to the defendant.[^67] For an unjust enrichment claim there must be a correspondence between the defendant’s enrichment and the plaintiff’s deprivation in the sense that the plaintiff made a direct contribution causing the defendant’s unjust enrichment or the plaintiff made an indirect contribution causally connected to the defendant obtaining a benefit that rightfully ought to have accrued to the plaintiff.[^68]

[110] The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason, which is to say that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case.[^69]

F. The Theory of the Case

[111] In this section of my Reasons for Decision, I shall describe the sources and nature of Ms. Lilleyman’s anti-competition conspiracy theory. Later in my reasons, I will explain why the theory of her case fails and why her action(s) is not certifiable as a class action in Canada. It is necessary to understand the source of Ms. Lilleyman’s conspiracy theory and to break it down to discover the viability of the economic and legal theory of her case.

[112] The source of Ms. Lilleyman’s theory is the premise that as a result of anti-trust proceedings launched by the United States’ Department of Justice (“D.O.J.”), it was established that for a three-year period from 2011 to 2013, the three entities that dominated the U.S. marketplace for consumer tuna conspired to unlawfully fix the price of tuna being sold in the U.S.

[113] One conspirator in the U.S. marketplace is Bumble Bee Foods LLC, an American corporation. Bumble Bee Foods LLC’s canned tuna brand was Bumble Bee. Bumble Bee Foods LLC can be said to have been owned by the group of companies led by Lion Capital LLP. Bumble Bee Foods LLC, Lion Capital LLP, Lion Capital (Americas) Inc., and Lion/Big Catch Cayman LP are Defendants in the immediate action.

[114] The second conspirator in the U.S. marketplace is Tri-Union Seafoods LLC, an American corporation that operated as Chicken of the Sea Inc. (“COSI”). COSI’s brand of canned tuna is Chicken of the Sea. COSI is owned by Thai Union Group Public Company Limited, (“Thai Union Group”) which is a Thailand corporation. COSI and the Thai Union Group are Defendants in the immediate action.

[115] The third conspirator in the U.S. marketplace is the StarKist Company, which can be said to have been owned by Dongwon Industries Company Limited (“DWI”), which is a South Korean corporation. The StarKist Company sold canned tuna under the StarKist brand. Before DWI purchased the StarKist Company, StarKist was a brand sold by a division of Del Monte Corporation. The StarKist Company, DWI, and the Del Monte Corporation are Defendants in the immediate action.

[116] There undoubtedly was a conspiracy in the U.S. marketplace. Ms. Lilleyman’s conspiracy theory notes that in the U.S. regulatory proceedings, COSI, the whistle-blower, was granted leniency in exchange for its co-operation, but: (a) StarKist Company paid a $100 million penalty; (c) Bumble Bee Foods LLC paid a $25 million penalty; and (d) several officers and directors of StarKist Company and Bumble Bee Foods LLC paid fines or went to jail for their roles in the conspiracy.

[117] After the completion of the U.S. regulatory proceedings, a follow up class action was initiated in the United States for its consumer citizens harmed by the price-fixing conspiracy. See In Re Packaged Seafood Products Antitrust Litigation, Case No. 15-MD-2670 DMS (MDD).

[118] And, after the completion of the U.S. regulatory proceedings, Ms. Lilleyman commenced her two proposed class actions in Canada. Not surprisingly, Ms. Lilleyman’s conspiracy theory is built upon the findings of the regulatory proceedings involving the three conspirators in the United States and the thrust of her theory is to extend those findings into Canada.

[119] In extending those findings to a conspiracy in Canada, Ms. Lilleyman makes two major adjustments to the theory of the case that had succeeded for the D.O.J.’s prosecution. Her first adjustment to the conspiracy alleged to have occurred in the United States is to deal with the circumstance that the three U.S. conspirators (Bumble Bee Foods LLC, COSI, and StarKist Company) did not market their brands of canned tuna in Canada.

[120] The second adjustment is that she alleges that the conspiracy started on July 1, 2004 and continued through 2011 to 2013 (the period that was the focus of the U.S. regulatory proceedings) and continues until today because of its aftershocks to the market. In other words, Ms. Lilleyman’s theory is that a conspiracy involving both the U.S. and Canadian marketplaces existed seven years before it was discovered by the D.O.J. and its impact extends for a ten-year tailing period after 2013 until 2023.

[121] The proven conspiracy in the United States had three confessed price-fixing conspirators who conspired to fix prices for a three-year period. In contrast, the alleged conspiracy in Canada is alleged to have the same three conspirators plus others alleged to be connected or associated with those conspirators conspiring to fix prices for a twenty-year period. The others are Clover Leaf Holdings Company and Connors Bros Clover Leaf Seafoods Company (collectively “Connors Bros Clover Leaf Seafoods”).

[122] The two adjustments entailed four complications to the conspiracy theory of Ms. Lilleyman’s case.

[123] The first complication is that Connors Bros Clover Leaf Seafoods has to be alleged to be a co-conspirator for the extended class period. Connors Bros Clover Leaf Seafoods is a Canadian corporation, which as of 2010 came to be owned by the Lion Capital LLP Group.

[124] During the period of the alleged conspiracy, Connors Bros Clover Leaf Seafoods was selling its Clover Leaf brand of tuna in Canada. Ms. Lilleyman alleges that selling Clover Leaf brand tuna is selling Bumble Bee Foods LLC’s brand of tuna. In other words, she alleges that Connors Bros Clover Leaf Seafoods by its related corporations’ status and by virtue of some common officers and directors is to be regarded as the equivalent, some sort of corporate avatar, of Bumble Bee Foods LLC.

[125] The second complication to Ms. Lilleyman’s theory of the case is that it is necessary to allege that Thai Union Group was a conspirator in Canada notwithstanding that its subsidiary COSI did not sell its brand of canned tuna in Canada and notwithstanding that Thai Union Group played an upstream role in the distribution of canned tuna in Canada.

[126] As the discussion below will detail, Thai Union Group was a cannery for tuna for a host of wholesalers and retailers in Canada who placed their own brands on the cans manufactured by Thai Union Group. Although Thai Union Group did not sell its own brand of tuna in Canada, nevertheless, it is alleged to be a party to a price-fixing conspiracy in Canada to sell canned tuna at supracompetitive prices.

[127] The third complication to Ms. Lilleyman’s conspiracy theory is that notwithstanding that the StarKist brand of tuna was in exile from the Canadian tuna marketplace since the 1980s, the StarKist Company was nevertheless joined as a co-conspirator to the extended twenty-year conspiracy in Canada. Further, this allegation entails the complications that Del Monte Corporation has to be joined for the conspiracy period between 2004 until 2008 when Dongwon Industries Limited (“DWI”) became the owner of the StarKist Company.

[128] The fourth complication to Ms. Lilleyman’s conspiracy theory for the Canadian marketplace of canned tuna is that in addition to treating them as playing a role in the alleged conspiracy, she relies on the doctrine of piercing the corporate veil to incriminate Lion Capital LLP, Lion Capital (Americas) Inc., Lion/Big Catch Cayman LP, Dongwon Industries Company Limited (“DWI”), and the Del Monte Corporation.

[129] To summarize Ms. Lilleyman’s conspiracy theory:

a. Ms. Lilleyman’s conspiracy theory builds upon the proven facts that: (a) Bumble Bee Foods LLC, (b) COSI, and (c) StarKist Company conspired from 2011 to 2013 to fix prices of Bumble Bee, Chicken of the Sea, and StarKist in the United States.

b. From this foundation, she alleges that beginning in 2004, there was a conspiracy to sell canned tuna in Canada at supracompetitive prices. She alleges that the conspiracy lasted for twenty years beginning before and continuing after the conspiracy proven to have existed in the United States.

c. The co-conspirators in the twenty-year conspiracy are: (a) Bumble Bee Foods LLC, which does not sell its eponymous brand of tuna in Canada; (b) its associated corporation Connors Bros Clover Leaf Seafoods, which sells its eponymous brand of tuna in Canada; (c) their equity owners (since 2010) the Lion Capital LLP group of Defendants; (d) COSI, which does not sell its eponymous brand of tuna in Canada; (e) COSI’s owner, the Thai Union Group, which sells cans of tuna to be branded by others in Canada; (f) the StarKist Company, which does not sell its eponymous brand of tuna in Canada; (g) the Del Monte Corporation, StarKist Company’s brand owner for the period between 2004 and 2008; and (h) Dongwon Industries Limited, StarKist Company’s owner after 2008.

[130] How the conspirators carried out their conspiracy in the U.S. and in Canada is neatly summarized in paragraph 7 of Ms. Lilleyman’s Amended Statement of Claim as follows:

7 Beginning at least by May 2004 and continuing until the present, the defendants entered an unlawful agreement to increase the price of canned tuna sold in Canada. The defendants conspired by, among other conduct, coordinating price increases and pricing terms; secretly and collusively exchanging pricing information and prospective pricing announcements and business plans; allocating sales, territories, customers, or markets; and collectively reducing quantity and restraining output. They communicated with each other to achieve their unlawful objectives in a number of in-person meetings, emails, trade association meetings, and telephone calls involving top executives from each defendant.

[131] The details of the theory of Ms. Lilleyman’s case will follow, but one can immediately observe that the case at bar is lightyears away from the typical anti-competition conspiracy class action where the same set of conspirators carry on their bad deeds in a defined marketplace.

G. Evidentiary Background

1. The Regulatory, Criminal, and Civil Proceedings in the United States

[132] As is not uncommon, particularly in the case of products liability and competition law proposed class actions, the proposed class action follows regulatory action in Canada or in the United States.

[133] It is also not uncommon that the regulatory proceedings in the U.S. prompted proposed class proceedings in the U.S.

[134] These phenomena or regulatory and parallel class actions in the United States are prominent features of the immediate case, which extends into Canada allegations of conspiracy that was found to exist in regulatory proceedings in the United States. The regulatory proceedings in the United States, in turn, prompted still ongoing class actions in the United States.

[135] For the purposes of the certification motion, the events in the United States will be noted because they are part of the background facts of the immediate case.

[136] That said, the findings of facts and the legal conclusions reached in the United States create no issue estoppels.

[137] The evidentiary and legal conclusions that follow on this certification motion are based on the evidence proffered by the parties on this certification motion in accordance with the procedural, evidentiary, and substantive law of Ontario, Canada and are not based on what may have been determined in the United States.

2. Fact Witnesses and Expert Witnesses

[138] In the following two parts of my Reasons for Decision, I shall discuss two significant challenges to the admission of evidence on this certification motion. Ms. Lilleyman challenges the admission of the evidence of Ms. Buchanan, who testified for the Defendants. Ms. Lilleyman challenges the admission of the evidence of Dr. Meer, who was called by Ms. Lilleyman to provide an expert’s opinion in support of her case. I am dismissing the respective challenges to these competing witnesses, To explain why, it is necessary to explain the difference between fact witnesses and expert witnesses. That explanation is the topic of this part of my Reasons for Decision.

[139] As a general rule, opinion evidence is not admissible; witnesses testify about the events that they perceived and witnesses are not permitted to testify about the inferences -- that is, their opinions -- that they drew from their perceptions.[^70] There is, however, an exception for witnesses duly qualified to express an expert’s opinion.[^71] As confirmed by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co.,[^72] there is a two-stage test for the admission of opinion evidence.

[140] In the first stage, (the threshold stage), the litigant proffering expert evidence must satisfy the four factors from R. v. Mohan,[^73] which are: (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of an exclusionary rule; and (4) qualification as an expert. There is a fifth factor from Mohan in cases in which the expert's opinion is based on novel or contested science or science used for a novel purpose, and in these cases, the reliability of the underlying science for that purpose must be established.[^74]

[141] For the fourth criteria of the Mohan factors, the qualifications criterion, to be satisfied, first, the witness must be shown to have acquired special or peculiar knowledge through experience or study in respect of the matters on which he or she will testify,[^75] and second, (as codified by rule 4.1.01 of the Rules of Civil Procedure),[^76] the witness must be independent, objective, and impartial, which non-partisanship will be assumed if the witness acknowledges his or her duties to the court in a sworn affidavit.

[142] Rule 4.1.01(1) of the Rules of Civil Procedure addresses the duty of an expert witness; it states:

Duty of Expert

4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert's area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

[143] Rule 53.03(2.1) of the Rules of Civil Procedure sets out the content of an expert’s report which includes a requirement that the report include an acknowledgment of expert’s duty signed by the expert.

[144] In the second stage, (the gatekeeper stage), the court makes a cost-benefit discretionary decision weighing the probative value of admitting the evidence against the potential adverse impacts of admitting the evidence including the consumption of time, prejudice, and the risk of confusing the trier of fact.

3. Challenge to the Evidence of Ms. Buchanan

[145] With the above background about fact witnesses and expert witnesses, I turn to the challenge to the evidence of Ms. Buchanan.

[146] In its factum, Class Counsel attacked the credibility of Ms. Buchanan and submitted that Ms. Lilleyman should be awarded substantial indemnity costs for the certification motion because of an alleged misrepresentation about the status of Ms. Buchanan as a witness. The factum stated:

[T]he defendants attempted to conceal and change the status of their lead witness Lorna Buchanan. Before Buchanan’s cross-examination, defence counsel represented Buchanan was a “fact witness.” Then, during her cross-examination, Buchanan referred to herself as an “expert” without correction by her counsel. In response to an undertaking, defence counsel represented that Buchanan was “an industry expert.” In their factum, the defendants now appear to have changed Buchanan’s status once again in characterizing her as a fact witness. Simply put, the defendants repeatedly recharacterized Buchanan as it was convenient to their cause, in an obvious attempt to mislead the plaintiff.

Duty Prevails

(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.

[147] In my opinion, in the immediate case, the lawyers for both sides were mistaken in the characterization of Ms. Buchanan’s evidence. Ms. Buchanan was a fact witness. As a former employee of Connors Bros Clover Leaf Seafoods, she was in a position to observe activities and provide relevant information about the activities of Connors Bros Clover Leaf Seafoods and of Bumble Bee Foods LLC. Ms. Buchanan did not need to be qualified as an expert to give this evidence.

[148] It appears that Ms. Lilleyman’s counsel understood, mistakenly in my view, that Ms. Buchanan was offering an expert opinion. During her cross-examination, it emerged that while an employee, she had invested in a fund of Lion Capital. From these circumstances, Ms. Lilleyman’s counsel’s reaction was to accuse the Defendants of using Ms. Buchanan as some sort of clandestine expert witness who was not giving independent opinions to the court but was acting as a partisan advocate for the Defendants.

[149] Putative Class Counsel’s reaction was a mistake. In the immediate case, it was obvious that Ms. Buchanan was not called to express any opinion. Had she been called to express an opinion, then she would have to have been qualified as an expert in accordance with the well- known regime of White Burgess Langille Inman v. Abbott and Haliburton Co.,[^77] R. v. Abbey,[^78] and R. v. Mohan,[^79] discussed above, and she would have been required to deliver the acknowledgement required by the Rules of Civil Procedure, mentioned above. However, Ms. Buchanan was not called to express an opinion, nor did she express an opinion. She was called to give evidence about her role and experience at Connors Bros Clover Leaf Seafoods. She was a witness to the events, or she participated in events that are pertinent to the plaintiff’s claim and the defendants’ defence. She was not giving opinion evidence about those events; rather, she was giving evidence about her knowledge of those events as a participant or witness of the events.

[150] That Ms. Buchanan had invested in a Lion Capital investment was akin to an opportunity to participate in an employment profit sharing or employee benefit plan, and is a perfectly innocent circumstance that does not impugn her integrity or her credibility. As it turned out, the investment was not profitable, but for present purposes, the point is that there is nothing about that investment that would disqualify her from providing evidence about what she experienced or witnessed while employed by Connors Bros Clover Leaf Seafoods.

[151] Ms. Buchanan was called to give evidence about her knowledge of the canned tuna market in Canada and in North America. I repeat, she was not called to give an opinion about the canned tuna market, and, therefore, she did not have to be qualified as an expert to say what she saw, heard, and probably smelt about the sale of canned tuna in North America. Ms. Buchanan, who admitted that she was not an economist, did not have to be an economist to testify about her observations, which is something different than opinions about the Canadian marketplace for tuna.

[152] In the immediate case, as it happens, by virtue of her several decades of experience and also, to a certain extent, because of her academic background, she could be said to be an expert in the marketing side of the canned tuna market, but she did not have to be qualified as an expert or an economist for her to provide her evidence about the tuna industry based on what she saw, heard, and probably smelt about the sale of canned tuna in North America.

[153] Ms. Buchanan did not have to swear or affirm the affidavit of an expert witness. She was not called as an expert witness. As it happens, it appears that she did not say anything to harm her former employer, but that does not make her a partisan and disqualify her as a witness. There was nothing to suggest that she was dishonest in her testimony or that she should be disqualified, as an expert witness might be disqualified, for partisanship.

[154] Ms. Buchanan was indeed retained to give evidence, as an expert might be retained, and she was paid, as an expert might be paid, for the time and effort that she expended in preparing an affidavit and being cross-examined, but there is nothing malign and improper per se about a witness being paid.[^80] In D.W. Matheson & Sons Contr. Ltd. v. Canada (AG),[^81] Justice Cromwell then a member of the Nova Scotia Court of Appeal stated at paragraph 88:

88. In relation to the concern that such an allowance might tend to undermine the duty to testify, it is helpful to distinguish between preparation time and time spent in testifying. In our Tariff, it seems to me that the specification of particular fees for the attendance of witnesses, along with the different treatment of expert witnesses, supports the view that, generally, there should be no other recoverable attendance fees for fact witness attending trial pursuant to a subpoena to testify. However, allowing preparation fees as a disbursement in an appropriate case does not undermine the civic duty to answer to a subpoena but acknowledges the practical necessity of detailed preparation in complex matters. In my view, this underlines, rather than detracts from, the importance of the duty to testify. It also, as I have noted, recognizes the reality of the need for witness preparation in complex litigation, encourages trial preparation and supports the purpose of an award of costs.

[155] Ms. Buchanan was not bribed to give false testimony and being a retired former employee, she was no longer under the control of her former employer. Ms. Buchanan could have simply been summoned to give evidence, and then she would have been paid a witness fee, but since Ms. Buchanan was no longer an employee of Connors Bros Clover Leaf Seafoods, the Defendants did the prudent thing of re-employing (retaining) her, determining what evidence she would give, and then proffering her testimony as part of the certification motion. Under cross-examination, she herself was honest and forthcoming about how her retainer came about.

[156] Putative Class Counsel’s reaction of shock and alarm was uncalled for. However, it appears that up until the hearing of the certification motion, the Defendants’ lawyers were incapable themselves of providing the clear explanation that while Ms. Buchanan’s background expertise was relevant to her experiential evidence, she was not giving an expert’s opinion and hence she was neither to be qualified or disqualified as an expert witness. In other words, unfortunately, the Defendants’ lawyers made matters worse by their ham-fisted explanations of how it is that Ms. Buchanan was presented as a witness describing perceived events and not expressing opinions about the events.

[157] Ms. Buchanan’s evidence is all admissible, and I shall give it the probative weight that I think it deserves as will become apparent from the discussion of the facts that follows later in these Reasons for Decision.

4. Challenge to the Evidence of Dr. Meer

[158] Ms. Lilleyman proffered the opinion evidence of Dr. Shireen Meer, who is an economist. Dr. Meer expressed an opinion about the existence of the alleged conspiracy and about how it harmed the marketplace for canned tuna in North America. Her report provided factual information about the canned tuna industry.

[159] The Defendants submitted that Dr. Meer’s evidence should not be admitted into evidence or that it should be given little to negligible weight for four reasons; namely: (a) she was not qualified to opine on the packaged tuna industry in Canada or to provide an opinion on causation or the quantification of damages from the alleged conspiracy; (b) Dr. Meer was not an independent non-partisan witness providing assistance to the court but was an advocate for Ms. Lilleyman and the putative Class Members; (c) her report was not based on and did not account for the actual facts and circumstances of the Canadian packaged tuna industry; and (c) she did not provide any methodology for establishing common impact to the class members.

[160] I disagree with the Defendants’ first and the second challenges to the evidence of Dr. Meer. Later, I shall explain why I agree with the third and fourth challenges and how I shall treat the worth (weight to be given) to Ms. Meer’s admissible evidence.

[161] In my opinion, Ms. Meer satisfied all four of the R. v. Mohan criteria and the approach to those criteria set out by the Supreme Court of Canada in Burgess Langille Inman v. Abbott and Haliburton Co.

[162] First, her evidence was relevant; it went to the very core of the issues to be decided on the certification motion. Second, her evidence was necessary. As I have already explained above, the assistance of economic experts is inevitably and fundamentally necessary in competition law cases because this discipline of knowledge is not one in which judges could or should rely on their expertise as fact finders. Third, although some parts of Dr. Meer’s report and testimony might be subject to exclusionary rules associated with hearsay evidence, overall there was an absence of an exclusionary rule that would make Dr. Meer’s report inadmissible. Fourth, Dr. Meer was qualified to express an expert’s opinion about the operation of price-fixing cartels, and she did not have to be a specialist in the fishing industry or about any particular industry for that matter.

[163] A very strenuous and ultimately unsuccessful effort was made to persuade me that while Dr. Meer was qualified to give some general economic evidence, economics is a very large body of specialized knowledge, she was not qualified to give the highly specialized knowledge required for the immediate case about the canned tuna industry. I disagree, Dr. Meer’s academic, teaching, and professional experience were more than adequate to qualify her to give the evidence necessary for this certification motion. I need not decide whether she would qualify to provide the opinion evidence necessary to decide a common issues trial but for present purposes, I conclude that she was qualified to give the evidence she provided for the certification motion.

[164] As the analysis later in these Reasons for Decision will reveal, I was not persuaded by Dr. Meer’s opinion, but that is a different matter from deciding that she was not qualified to express the opinion that she did.

[165] I also was not persuaded that she crossed the line from providing an independent opinion to becoming a partisan advocating Ms. Lilleyman’s case. She was retained to provide an opinion pursuant to the instructions provided by Ms. Lilleyman’s counsel. They were satisfied with the opinion and waiving litigation privilege, they presented Dr. Meer as an expert witness. It is quite natural that she defended her opinion and that does not make her a partisan.

[166] I conclude that Dr. Meer’s evidence is admissible. The weight that I shall give to her evidence will become apparent from reading the rest of these Reasons for Decision.

H. Facts

1. The Defendants

[167] Bumble Bee Foods LLC is a Delaware limited liability company with its headquarters and principal place of business in San Diego, California, where it has a canned tuna processing facility. It sells Bumble Bee branded tuna in the United States. The Bumble Bee brand is not marketed in Canada.

[168] Ms. Lilleyman alleges that the Clover Leaf brand, which is sold by Connors Bros Clover Leaf Seafoods Company, is Bumble Bee Foods LLC’s brand in Canada.

[169] Bumble Bee Foods LLC was owned by ConAgra until 2003 when it was sold to Centre Partners, an equity investment group. In 2010, Centre Partners sold Bumble Bee Foods LLC to Lion/Big Catch Cayman LP as an investment vehicle for Lion Capital Fund III and FCF Co. Ltd., and the management team at Bumble Bee Foods LLC, ConAgra and Centre Partners.

[170] Bumble Bee Foods LLC has taken bankruptcy protection, and this proposed class action has been stayed as against it.

[171] Clover Leaf Holdings Company is incorporated under the laws of Nova Scotia. Connors Bros Clover Leaf Seafoods Company is incorporated under the laws of Nova Scotia. The holding corporation and the operating corporation shall be referred to collectively as “Connors Bros Clover Leaf Seafoods”. Connors Bros Clover Leaf Seafoods sells Clover Leaf branded tuna in Canada. The Clover Leaf brand is not marketed in the United States.

[172] During the class period Clover Leaf was owned by Centre Partners, until in 2010, Centre Partners sold Connors Bros Clover Leaf Seafoods to Lion/Big Catch Cayman LP as an investment vehicle for Lion Capital Fund III and FCF Co. Ltd., and the management team at Bumble Bee Foods LLC.

[173] Connors Bros Clover Leaf Seafoods has taken bankruptcy protection, and this proposed class action has been stayed as against it.

[174] In 2010, Lion/Big Catch Cayman LP (as of 2017, now Big Catch Cayman LP) was formed as a limited partnership under the laws of the Cayman Islands as an investment vehicle for Lion Capital Fund III (69%) and FCF Co. Ltd., (23%), and the management team at Bumble Bee Foods LLC (8%).

[175] FCF Co. Ltd. is a privately held Taiwanese seafood conglomerate that supplied Bumble Bee Foods LLC with raw tuna. For its investors, Lion Capital Fund III acquired an indirect interest in: (a) a venture-state aquaculture company called Menon, (b) Bumble Bee Foods LLC, and (c) Connors Bros Clover Leaf Seafoods.[^82]

[176] Lion Capital LLP is a United Kingdom limited liability partnership carrying on business as an equity fund manager. Lion Capital LLP does not have day-to-day involvement in the operations of the companies in which the equity fund invests, but it does receive periodic reports about finances and operations to monitor the performance of the businesses as part of the equity fund’s portfolio. Lion Capital LLP has no offices in North America. Lion Capital LLP does not sell products anywhere. It was responsible for the establishment of what is now called Big Catch Cayman LP.

[177] Lion Capital LLP owns Lion Capital (Americas) Inc., which is a Delaware corporation with its principal place of business in New York City. Lion Capital (Americas) Inc. is a wholly owned subsidiary and a non-discretionary investment advisor to Lion Capital LLP in respect of investments in North America for the private equity funds being managed by Lion Capital LLP. Lion Capital (Americas) does not have offices, employees, or operations in Canada. It does not sell products anywhere and earns its income solely from its parent Lion Capital LLP.

[178] Tri-Union Seafoods LLC, which operates as Chicken of the Sea International Inc. (“COSI”) is a California limited liability company with its head office and principal place of business in San Diego, California. It sells Chicken of the Sea brand tuna in the U.S but not in Canada.

[179] COSI is owned by Thai Union Group Public Company Limited (“Thai Union Group”), which is a Thailand corporation with its headquarters in Amphar Muang, Thailand. Thai Union Group is a cannery for tuna products which are branded by others.

[180] With respect to the supply chain to Canada, the Thai Union Group cans tuna for the following brands, amongst others: Clover Leaf (the brand of Connors Bros Clover Leaf Seafoods), Ocean Brands (a brand of the Jim Pattison Group), Gold Seal (another brand of the Jim Pattison Group), President’s Choice (a Loblaw’s brand), No Name (another Loblaw’s brand), and Great Value brands (a Walmart brand). As noted above, Thai Union Group’s subsidiary, COSI, does not supply Chicken of the Sea brand tuna to the Canadian marketplace.

[181] StarKist Company is a Pennsylvania corporation with its headquarters and principal place of business in Pittsburgh, Pennsylvania. Between 2002 and 2008, the StarKist brand was owned by Del Monte Corporation, now known as Big Heart Pet Brands Inc., In 2002, the Del Monte Corporation acquired the StarKist brand from the H.J. Heinz Company and the StarKist Company, so to speak, was a division of the Del Monte Corporation.

[182] In 2008, Del Monte Corporation sold its StarKist Company division to Dongwon Industries Company Limited, (“DWI”), a South Korean corporation with its head office in Seoul, South Korea. DWI created the Pennsylvania corporation to be the StarKist Company. DWI is partially owned by Dongwon Enterprises Co. Ltd.

[183] The StarKist brand be it under the stewardship of H.J. Heinz, Del Monte Corporation, or DWI was sold in the United States. At one time - long before the alleged conspiracy - the StarKist brand of tuna was sold in Canada. However, the StarKist Company retreated from the Canadian tuna market in 1989 because of what was called the “Tunagate Scandal.” Throughout the time of the alleged conspiracy, the StarKist brand was not part of the supply chain of canned tuna in Canada.

[184] By way of a summary of the relationship of the defendants to the Canadian marketplace for canned tuna.

a. Bumble Bee Foods LLC does not sell its Bumble Bee brand in Canada.

b. Connors Bros Clover Leaf Seafoods Company has the largest market share for canned tuna in Canada during the class period. Its Clover Leaf brand was sold in Canadian grocery stores and the brand competed with the private brands of the grocery supermarkets, including Ocean Brands, Gold Seal, President’s Choice, No Name, and Good Value, which are the brands of Canadian grocery corporations. The Clover Leaf brand also competed with smaller brands such as Unico in the Canadian marketplace.

c. Lion Capital LLP and Lion Capital (Americas) Inc. are associated with Lion/Big Catch Cayman LP, which is an investment vehicle. Until their bankruptcies, Bumble Bee Foods LLC and Connors Bros Clover Leaf Seafoods were owned by investors. The last set of investors were: (a) Lion Capital Fund III, (b) FCF Co. Ltd., and (c) the management team at Bumble Bee Foods LLC and Connors Bros Clover Leaf Seafoods Company. Lion Capital LLP, Lion Capital (Americas) Inc., and Lion/Big Catch Cayman LP, as such do not sell tuna in Canada or anywhere in the world.

d. COSI does not sell its canned tuna in Canada. It sells Chicken of the Sea brand tuna in the United States.

e. Thai Union Group does not sell a brand of tuna in Canada. Rather it is a non-exclusive cannery for the vendors of tuna in Canada including Connors Bros Clover Leaf Seafoods, the Jim Pattison Group, Loblaws, Metro, Sobeys, and Walmart.

f. Starkist Company or its StarKist brand was not sold in Canada during the class period. While the StarKist Company was owned by Dongwon Industries Co., Ltd. (“DWI”), which is partially owned by Dongwon Enterprises Co. Ltd., it was implicated in a price-fixing conspiracy in the United States for the period between 2011 to 2013.

g. The StarKist brand was owned by Del Monte Corporation from 2002 to 2008 during a time in which the StarKist brand was not being marketed in Canada and before the brand was involved in a price-fixing conspiracy in the United States.

2. Economic History of the Canned Tuna Marketplace in Canada and the U.S.

[185] For present purposes, the economic history of the canned tuna market in Canada and in the United States can begin in 1989. At that time, the StarKist brand was one of the major brands of canned tuna in Canada and in the United States. However, in 1989, the StarKist brand stopped being sold in Canada. The owners of the brand retreated from the Canadian market because of the “Tunagate Scandal”, in which StarKist Company was alleged to have sold spoiled tuna.

[186] By 1998, George Weston Limited, the parent company of Weston Foods and of Loblaws had acquired the Clover Leaf brand of tuna, which traces its history to a cannery on the Fraser River in British Columbia. George Weston Limited had already acquired Connors Brothers, which was a fish packing company founded in the 1880s in New Brunswick. In 1998, George Weston Limited sold the Clover Leaf brand to International Home Foods, which also had a U.S. canned seafood division, that sold a brand known as Bumble Bee. International Home Foods acquired the Clover Leaf brand.

[187] In 2001, ConAgra purchased International Home Foods, thereby acquiring Connors Bros Clover Leaf Seafoods in Canada for the Clover Leaf brand and Bumble Bee Foods LLC in the U.S. for the Bumble Bee brand.

[188] Pausing here in the history, it shall be important to keep in mind that Ms. Buchanan had already been working for Connors Bros Clover Leaf Seafoods for about a year before its acquisition by ConAgra.

[189] In 2002, in the U.S., H.J. Heinz Company sold the StarKist brand of tuna to Del Monte Corporation, now known as Big Heart Pet Brands Inc. Del Monte Corporation is a Delaware corporation with its headquarters and principal place of business in Ohio. Del Monte Corporation operated StarKist Company until 2008, when, as described below, it sold its seafood business. Del Monte did not sell tuna in Canada during the class period.

[190] In 2003, ConAgra sold Connors Bros Clover Leaf Seafoods and Bumble Bee Foods LLC to a private equity firm in the U.S. known as Centre Partners and to the senior management group of the respective companies.

[191] The alleged conspiracy amongst the Defendants to sell canned tuna products at supracompetitive prices in Canada and in the U.S. is alleged to have begun on July 1, 2004. For the purposes of the certification motion, Ms. Lilleyman changed the commencement date of the class period of July 1, 2008.

[192] Each year, Canadians consume $200 million in shelf-stable packaged tuna products sold in cans, pouches, or packages. At the time of the commencement of the alleged conspiracy and during the class period, the branders of packaged tuna in Canada were: (a) the grocery supermarket retail chains including Loblaws, Metro, Sobeys, and Walmart, which sold canned tuna under private labels; (b) many small brands of packaged tuna, including Callipo, Pastene, Primo, Rio Mare, and Unico; (c) Connors Bros Clover Leaf Seafoods, whose brand was Clover Leaf; (d) Ocean Brands, which was owned by the Jim Pattison Group in British Columbia; and (e) Gold Seal which was also owned by the Jim Pattison Group until 2014, when this brand was discontinued by the Jim Pattison Group. The Clover Leaf brand had the largest market share (approximately 45%) and for which there was almost a 90% consumer awareness.

[193] In Canada, the major grocery chains were thus distributors of their own private brands and also the retailers of the brands of Clover Leaf, Ocean Brands, Gold Seal, and the smaller brands.

[194] Connors Bros Clover Leaf Seafoods, the brands of the Jim Pattison Group (Ocean Brands, and Gold Seal), did not sell their tuna products into the United States. Bumble Bee Foods LLC, COSI, and StarKist Company did not sell their brands of canned tuna in Canada during the period of the alleged price-fixing conspiracy.

[195] At the time of the commencement of the alleged conspiracy and throughout the class period, none of the Canadian suppliers of packaged tuna were producers, because there are no production plants in Canada. Rather, all of the Canadian retail suppliers of canned tuna were supplied by manufacturing plants located in the Philippines and Thailand. The Philippine canneries included Century Pacific Food, Songkla, and General Tuna Corpor. The Thailand canneries included: RS Cannery, Pataya Food Industries, Chotiwat Manufacturing, I.S.A. Value, Songkla Canning Public, and Unicord. The Canadian packaged tuna brands did not have exclusive arrangements with the producers; as a result, each of the Canadian brands sourced tuna from the same set of producers in Asia. The Canadian retail suppliers of canned tuna did not source their tuna from production plants in the United States.

[196] The Thailand canneries included the defendant Thai Union Group. As will become clearer from the discussion later, this is a significant fact. As a supplier of unbranded tuna cans to Canada tuna sellers, the Thai Union Group competed with a host of rivals in the Philippines and Thailand. In Canada, Thai Union Group was not a competitor of Connor Bros Clover Leaf Seafoods.

[197] Throughout the class period of the alleged conspiracy, the economic character of the tuna market was different in the United States. In the United States, the suppliers of packaged tuna were: (a) private labels of American grocery retailers; (b) Bumble Bee Foods LLC, which was the corporate sister company to Connors Bros Clover Leaf Seafoods; (c) Chicken of the Sea International (COSI), which was a California company subsidiary of Thai Union Group; and (d) StarKist Company. Unlike the situation in Canada, the American suppliers of canned tuna had packaging plants and processed the raw tuna in the United States or in its territories.

[198] It is worth emphasizing that at the time of the commencement of the alleged conspiracy and throughout the alleged class period: (a) Bumble Bee Foods LLC, did not sell canned tuna in Canada; (b) COSI did not sell canned tuna in Canada; and (c) StarKist Company did not sell tuna in Canada having left the Canadian market in 1989 because of the “Tunagate Scandal”, when StarKist Company was alleged to have sold spoiled tuna. None of these companies sold their eponymous brands or sold private labels to Canadian or otherwise produced packaged tuna for sale in Canada during the class period.

[199] In the United States, on June 19, 2008, StarKist Company was acquired by: (a) KDB Value Private Equity Fund II and III (which are not parties to this action), and (b) Dongwon Industries Co., Ltd., (DWI) which was partially owned by Dongwon Enterprise Co., Ltd.

[200] Dongwon Industries Co., Ltd. is itself a fishing company that operates marine, trade and logistics divisions. Dongwon Industries Co., Ltd. sells frozen raw sashimi tuna products but does not itself sell packaged tuna.

[201] Dongwon Industries Co., Ltd. also owned a stake in a separate corporate entity, Dongwon F&B Co., Ltd., which is a food and beverage manufacturing company in South Korea that does sell packaged tuna. although there is no evidence that it sold packaged tuna to Canadian groceries. It is not a defendant, nor is it alleged to have participated in any conspiracy concerning packaged tuna.

[202] In 2010, Centre Partners sold Connors Bros Clover Leaf Seafood to Lion/Big Catch Cayman LP as an investment vehicle for Lion Capital Fund III and FCF Co. Ltd., and the management team at Connors Bros Clover Leaf Seafoods.

[203] Also in 2010, Centre Partners sold Bumble Bee Foods LLC to Lion/Big Catch Cayman LP as an investment vehicle for Lion Capital Fund III and FCF Co. Ltd., and the management team at Bumble Bee Foods LLC.

[204] In Canada, in 2011 Ocean Brands, which was owned by the Jim Pattison Group, acquired the Gold Seal brand and the Jim Pattison Group took over its tuna distribution business until 2014, after which packaged tuna was no longer sold under the Gold Seal brand.

[205] There are no allegations that the Jim Pattison Group or the supermarket groceries in Canada participated in any price-fixing conspiracy.

[206] As of September 23, 2012, Dongwon Industries Co., Ltd. has owned all of the outstanding shares of StarKist Company.

[207] In December 2014, Thai Union Group announced an agreement to buy Bumble Bee Foods LLC and Connors Bros Clover Leaf Seafoods. The closing of the acquisition was subject to clearance by U.S. antitrust authorities.

[208] In December 2015, the U.S. Department of Justice announced that the proposed acquisition was abandoned because the D.O.J.’s investigation revealed that the U.S. packaged tuna market was not functioning competitively. The D.O.J. commenced anti-trust proceedings.

[209] In November 2016, the D.O.J. secured plea bargain agreements with the StarKist Company and Bumble Bee Foods LLC and from several of their executives.[^83]

[210] COSI confessed that it agreed with Bumble Bee Foods LLC to reduce can sizes in 2008 and agreed on price increases with Bumble Bee Foods LLC and StarKist Company beginning in 2008 and again in 2010 and 2011. Bumble Bee Foods LLC admitted that: (a) between 2011 and 2013, it coordinated list price increases with StarKist Company; and (b) between 2011 and 2013, it coordinated promotional levels and pricing with StarKist and COSI. StarKist Company confessed to two pricing agreements with Bumble Bee Foods LLC and with COSI between November 2011 and December 2013. The documentary evidence revealed that the three conspirators had come to an agreement to downsize their cans of tuna.

[211] Each of the plea agreements concerned only the 2011 to 2013 time period. COSI, the subsidiary of Thai Union Group received leniency as the whistle-blower in the D.O.J. investigation. Bumble Bee Foods LLC agreed to pay a $25 million criminal fine, which will increase to a maximum criminal fine of $81.5 million, payable by a related entity, in the event of a sale of Bumble Bee Foods LLC. StarKist Company was sentenced to pay a criminal fine of $100 million, the statutory maximum, for its role in the conspiracy to fix prices for canned tuna sold in the United States. The leniency agreement meant that provided Thai Union Group fully cooperated with the D.O.J., it and its cooperating executives or employees within the scope of the Investigation would not face criminal fines, jail time or prosecution.

[212] Christopher Lischewski, the Chief Executive Officer of Bumble Bee Foods LLC (and the president of Connors Bros Clover Leaf Seafoods) was charged and subsequently convicted of being the leader of the anti-competition conspiracy in the sale of canned tuna in the United States for the 2011-2013 period.[^84] Ron Schindler, the head of Connors Bros Clover Leaf Seafoods with responsibility for operations in Canada was never criminally charged or implicated in any conspiracy.

[213] None of Lion Capital LLP, Lion Capital (Americas) Inc., Lion/Big Catch Cayman LP, Thai Union Group, Del Monte Corporation, Dongwon Industries Co., Ltd., their officers or directors were charged with respect to the proceedings brought by the D.O.J. in the United States.

[214] In Canada, there has never been an investigation or criminal charges laid with respect to the sale of canned tuna in Canada.

[215] In 2018, Ms. Buchanan retired from Connors Bros Clover Leaf Seafoods. She testified that during her time of employment, which includes the entire time of the alleged conspiracy, Bumble Bee Foods LLC was not involved in Connors Bros Clover Leaf Seafood’s day-to-day management and operations.

[216] Ms. Buchanan testified that Lion Capital LLP and Lion/Big Catch Cayman LP had no involvement in the marketing and trade spending of the Clover Leaf brands of products. She deposed that Connors Bros Clover Leaf Seafood’s sales and pricing decisions were all independent and did not need approval from Bumble Bee Foods LLC. She said that given her role, she would have known if there was a tuna price-fixing conspiracy in Canada.

[217] In late 2019, Connors Bros Clover Leaf Seafoods commenced proceedings under the Companies’ Creditors Arrangement Act (“CCAA”), and Bumble Bee Foods LLC commenced proceedings under Chapter 11 of the U.S. Bankruptcy Code.

[218] Both corporations were subsequently sold to FCF Co. Ltd., which was one of Bumble Bee Foods LLC’s suppliers of raw tuna and had been a co-investor with Lion/Big Catch Cayman LP.

3. Miscellaneous Facts

[219] What follows is a collection of miscellaneous facts that are relevant to the certification criteria.

[220] During the Class Period, the major sellers of packaged tuna in Canada were: (a) Connors Bros Clover Leaf Seafoods, (b) Ocean Brands, which was owned by the Jim Pattison Group; (c) Gold Seal, which was also owned by the Jim Pattison Group, which discontinued the brand in 2014, (d) Loblaws, (e) Metro, (f) Sobeys, and (g) Walmart Canada.

[221] Of the major sellers of packaged tuna in Canada, only Connors Bros Clover Leaf Seafoods is a defendant to this class action, and the action as against it has been stayed.

[222] Connors Bros Clover Leaf Seafoods and Bumble Bee Foods LLC (against whom the action has also been stayed) have had common ownership since 1998. The common ownership changed three times during the class period.

[223] Thai Union Group’s subsidiary COSI sold Chicken of the Sea brand tuna in the United States but not in Canada.

[224] Thai Union Group supplied canned tuna that was branded by Connors Bros Clover Leaf Seafoods, the Jim Pattison Group (two brands), Loblaws, Metro, Sobeys and Walmart. There is no evidence in the record that Thai Union Group had any influence on the pricing or marketing strategies of the major sellers of packaged tuna in Canada or that it sought to reduce its supply to those Canadian sellers.

[225] It is not clear from the evidentiary record as to who owned the StarKist Company when it abandoned the Canadian market because of the Tunagate Scandal in the late 1980s. What is known is that the StarKist brand was purchased by Del Monte Corporation in 2002. The brand was purchased from H.J. Heinz Company and owned as a brand (i.e., it was not incorporated) by Del Monte in 2004, which is the alleged start of the conspiracy in Canada.

[226] It is also known that StarKist Company was incorporated on June 19, 2008 to acquire the packaged seafood business of Del Monte Corporation. From September 29, 2008 to December September 22, 2012, StarKist was owned by Dongwon Industries Company Limited, (“DWI”) and entities known as KDB Value Private Equity Fund II and III. The KDB Entities have not been named as defendants. Since September 23, 2012, DWI has owned all of the outstanding shares of StarKist Company.

[227] The tuna products offered for sale in the U.S. and Canada are different. Packaged tuna in Canada is of a higher quality and is made from raw fish meeting higher quality specifications than in the U.S. market. The product mix is different. More flavoured canned tuna is sold in Canada. More pouched tuna is sold in the U.S. than in Canada.

[228] Tuna can sizes are different in Canada and the United States. Canned tuna was never sold in Canada during the Class Period in a standard 5 oz. can size.

[229] It is worth keeping in mind that Bumble Bee Foods LLC, COSI, Del Monte Corporation, and the StarKist Company did not manufacture or sell packaged tuna in Canada during the Class Period. And the Lion Capital Defendants and Dongwon Industries Company Limited, (“DWI”) never manufactured or sold packaged tuna anywhere in the world during the Class Period.

[230] In the United States, fifty-three proposed class actions were commenced with respect to the conspiracy to fix the prices of tuna. Pursuant to the United States Federal Rules of Civil Procedure (multiple district litigation), the actions were ordered centralized in the Southern District of California.[^85]

[231] On March 1, 2022, in the multiple district class action in the United States, the court released its decision on a motion for a partial summary judgement brought by Del Monte Corporation. The motion was granted in part and denied in part. Del Monte was entitled to a summary judgment that it withdrew from the alleged conspiracy as of October 6, 2010 but was not entitled to summary judgment that it withdrew as of October 6, 2008.[^86]

[232] On April 23, 2023, in the multiple district class action in the United States, the court granted StarKist Co., Dongwon Industries Co. and Del Monte Corporation’s motion for a partial summary judgment dismissing all claims for purchases made before May 30, 2011.[^87] The Order ended the claims against Del Monte Corporation.

[233] On June 28, 2023, in the multiple district class action in the United States, the court denied the motion for a reconsideration or appeal of the partial summary judgment Order of April 23, 2023.[^88]

4. Economic Evidence

[234] As I explained above, Dr. Meer’s report about the Canadian canned tuna marketplace is admissible. However, as I shall now explain, it is an incorrect analysis, and while the report was of some assistance to this court, and much of it was consistent with the conventional law and economics principles discussed earlier, Dr. Meer’s report was of little to negligible assistance to Ms. Lilleyman and the putative Class Members in supporting the certification of Ms. Lilleyman’s proposed class action. Indeed, Dr. Meer’s evidence was one of the evidentiary torpedoes that sunk the class action battleship. The purposes of cross-examination are not confined to discrediting the witness, and cross-examination is often a way for a party to build its own case. That is what happened in the immediate case. Dr. Meer’s evidence proved more valuable for the Defendants than it did for Ms. Lilleyman.

[235] Dr. Meer opined that the Canadian market is conducive to price fixing and the history of Canadian canned tuna pricing is consistent with a cartel. As I shall explain below, these opinions were manifestly mistaken. Dr. Meer opined that nearly all publicly available information on the canned tuna sector is consistent with cartel conduct in the tuna market in Canada. This opinion was also manifestly wrong because the structure of the Canadian market is not conducive to price fixing.

[236] Although Dr. Meer’s report appears theoretically sound, she relies on inadequate, insufficient, unreliable, unsubstantiated, and unreliable data. The report contains material factual errors and false assumptions that make her application of economic principles to reach an opinion unsound and incorrect. Visualize:

[237] Dr. Meer wrongly assumes that the Canadian packaged tuna market has the same structure and the same participants as the market dominated in the U.S. by: (a) Bumble Bee Foods LLC, (b) COSI, and (c) StarKist Company. However, Dr. Meer wrongly describes the Canadian packaged tuna market as dominated by Bumble Bee Foods LLC, COSI, and StarKist Company, none of which sold packaged tuna in Canada during the period of the alleged conspiracy.

[238] Dr. Meer wrongly asserted that StarKist Company is one of the three major manufacturers of tuna in Canada, when, in fact, StarKist brand tuna has not been sold in Canada since the late 1980s.

[239] Further, in her opinion about who dominated the packaged tuna market in Canada, Dr. Meer ignores the role of the major grocery retailers’ private labels, and she attributes market power to Thai Union Group that it did not have.

[240] In her opinion about who dominated the packaged tuna market in Canada, Dr. Meer appears to not have appreciated that the Jim Pattison Group was a competitor of Connors Bros Clover Leaf Seafoods and that Thai Union Group was not a competitor of either but was an upstream vendor of tuna cans that were labelled by the downstream vendors of canned tuna.

[241] And Dr. Meer appears to not appreciate that the Thai Union Group did not have an exclusive relationship with the downstream participants in the supply chain of canned tuna. Thai Union Group was amongst a group of Asian canneries that supplied cans of tuna to be labelled by the actual competitors in the Canadian marketplace.

[242] Dr. Meer wrongly attributes to Thai Union Group what is Jim Pattison Group’s label Ocean Brands’ 30% share of the retail tuna market in 2016. This is wrong. Thai Union Group had no share in the retail market because it was an upstream distributor of raw materials on the supply chain and, in any event, the Ocean Brand label did not have a 30% share of the retail tuna market in 2016 and if it did have such a large share of the market, the Thai Union Group was not the exclusive supplier to the Jim Pattison Group. As mentioned above, the Thai Union Group was amongst a group of Asian canneries that supplied the Canadian marketplace.

[243] Dr. Meer’s opinion that the Canadian tuna market is highly concentrated and therefore conducive to an effective cartel is without foundation because: (a) she ignored the many vendors of private brands, including Loblaws, Metro, Sobeys, and Walmart; (b) she treated Thai Union Group as a competitor; and (c) she misconceived the market share of the brands of the Jim Pattison Group.

[244] In reaching her opinion, Dr. Meer incorrectly assumed that as an aspect to the price-fixing conspiracy, tuna can sizes were decreased in Canada during the period of the alleged conspiracy without any reduction in product pricing; however, tuna can sizes never changed in Canada.

[245] Dr. Meer wrongly assumed that there were barriers to new competitors entering into the Canadian marketplace because of the cost of developing canning facilities in Canada; however, the Canadian marketplace has no such barriers because none of the existing competitors had canning facilities; rather, Canadian wholesalers and retailers rely on foreign canneries of tuna. In contrast, Bumble Bee Foods LLC, COSI, and the StarKist Company have their own canning facilities.

[246] Dr. Meer misinterpreted the academic literature on packaged tuna to stipulate that the product does not have comparable substitutes, even though the academic studies she cited identified a broad range of substitutes, including salmon, other seafood, luncheon meat, red meat, and value-added pasta dishes. The elasticity of tuna as a product is a matter for debate.

[247] As noted in the law and economics discussion earlier in these Reasons for Decision, the court requires the assistance of an economics expert to determine whether the alleged conspiracy caused harm and to measure that harm. In her report, Dr. Meer opined that there was empirical evidence that supported the existence of a cartel in Canada. In this regard, she asserted that the average price of packaged tuna sold in Canada increased over the alleged conspiracy period. She relied on a chart that compares the value of prepared tuna imports into Canada to volume (from 2000 to 2018), and a chart that shows retail prices in Canada (from 1998 to July 2019).

[248] However, these charts revealed an average increase of only 0.5% per year in retail prices during the alleged conspiracy period, which Dr. Meer agreed may have been well below normal grocery price inflation. This acknowledgement would kick the butt of any “but for” calculation by Dr. Meer.

[249] Dr. Meer’s material assumptions about the operation of the Canadian tuna market were rebutted by Ms. Buchanan’s evidence about her experience working for Connors Bros Clover Leaf Seafoods. Dr. Meer’s opinion that there was evidence of price fixing in Canada was contradicted and rebutted by Ms. Buchanan. Ms. Buchanan’s evidence was that given her role selling the Clover Leaf brand in Canada, she would have known about a price-fixing conspiracy but there was no price fixing between Connors Bros Clover Leaf Seafoods and its Canadian competitors with respect to the sale of packaged tuna in Canada.

[250] In short, Dr. Meer’s opinion does not provide some basis in fact for a conspiracy to fix canned tuna prices in Canada. Indeed, the mistakes in her opinion rather suggest that the marketplace in Canada was not conducive to a price-fixing conspiracy.

[251] As I shall explain further below, when I discuss the cause of action criterion and the common issues criterion, Ms. Lilleyman’s conspiracy theory is not supported by the evidence she marshalled for Dr. Meer or that was marshalled for the certification motion.

I. Certification General Principles

1. General Principles

[252] The court has no discretion and is required to certify an action as a class proceeding when the following five-part test in s. 5 of the Class Proceedings Act, 1992 is met: (1) the pleadings disclose a cause of action; (2) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; (3) the claims of the class members raise common issues; (4) a class proceeding would be the preferable procedure for the resolution of the common issues; and (5) there is a representative plaintiff who: (a) would fairly and adequately represent the interests of the class; (b) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (c) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

[253] On a certification motion, the question is not whether the plaintiff’s claims are likely to succeed on the merits, but whether the claims can appropriately be prosecuted as a class proceeding.[^89]

[254] The test for certification is to be applied in a purposive and generous manner, to give effect to the goals of class actions; namely: (1) to provide access to justice for litigants; (2) to encourage behaviour modification; and (3) to promote the efficient use of judicial resources.[^90] That said, in Pro-Sys Consultants Ltd v. Microsoft Corp.,[^91] the Supreme Court of Canada stated that although not a merits determination, certification was meant to be a meaningful screening device, that does not “involve such a superficial level of analysis into the sufficiency of the evidence that it would amount to nothing more than symbolic scrutiny”.

[255] For certification, the plaintiff in a proposed class proceeding must show “some basis in fact” for each of the certification requirements, other than the requirement that the pleading discloses a cause of action.[^92] The some-basis-in-fact standard sets a low evidentiary standard for plaintiffs, and a court should not resolve conflicting facts and evidence at the certification stage or opine on the strengths of the plaintiff’s case.[^93] Although the evidentiary burden on a certification motion is the low, i.e., the some basis in fact standard, that burden must be discharged by evidence that is admissible in accordance with the normal law of evidence.[^94]

[256] In particular, there must be a basis in the evidence to establish the existence of common issues.[^95] From a factual perspective, the plaintiff must show that there is some basis in fact that: (a) the proposed common issue actually exists; and (b) the proposed issue can be answered in common across the entire class, which is to say that the Plaintiff must adduce some evidence demonstrating that there is a colourable claim or a rational connection between the Class members and the proposed common issues.[^96]

[257] To establish commonality, evidence that the alleged misconduct actually occurred is not required; rather, the necessary evidence goes only to establishing whether the questions exist and are common to all the class members.[^97]

[258] The some-basis-in-fact standard does not require evidence on a balance of probabilities and does not require that the court resolve conflicting facts and evidence at the certification stage and rather reflects the fact that at the certification stage the court is ill-equipped to resolve conflicts in the evidence or to engage in the finely calibrated assessments of evidentiary weight and that the certification stage does not involve an assessment of the merits of the claim and is not intended to be a pronouncement on the viability or strength of the action.[^98]

[259] Although it has recently garnered renewed attention, it has been for a long time, and it continues to be a fundamental principle that for an action to be certified as a class proceeding there must be some evidence that two of more putative Class members suffered compensatory harm.[^99]

2. The Some Basis in Fact/Merits Tightrope

[260] Since all of the certification criteria are in some way or another connected to the merits of the plaintiff’s case, metaphorically speaking, on a certification motion, the motions judge has to walk a tightrope of determining that there is some basis in fact for the certification criteria while not making any determination of the merits of the proposed representative plaintiff’s case.

[261] In the majority of certification motions, the task of determining whether the evidentiary standard for the certification criteria is satisfied is not a difficult task because there is no high tightrope to metaphorically traverse. In most certification motions, it will not be particularly difficult for the plaintiff to satisfy the evidentiary standard of the certification criteria because in the overwhelming majority of proposed class actions, there will be a group of manifestly injured putative class members, who were harmed by a defective product, who were on the train that crashed, that saw their investment in the stock market disappear, who got ripped off by a merchant, or who attended an institution where many were mistreated. In these cases, where a group suffers a manifest injury, the plaintiff need not show some basis in fact beyond showing that the class members have worthwhile common issues that make a class action the preferable procedure.

[262] Competition law class actions, however, are not necessarily so easy because the manifestation of injury to the economy often remains to be proven as does the possibility of a methodology to quantify those damages. The ironic difficulty in these competition law cases is that there will be some basis in fact for the commonality of the questions of the class members because the questions all will focus on what the defendants conspired to do but there may be little to no evidence that the defendants conspired, which may be understandable given the clandestine nature of conspiracies. As the discussion above has revealed and as the discussion below will reveal, these difficulties are present in the immediate case.

[263] That said, in the immediate case, without reasoning backward from the inherent commonality of the questions to a determination that the certification criteria are satisfied, it is possible to determine whether the certification criteria are satisfied without making a merits determination.

[264] In the immediate case, I agree with Ms. Lilleyman’s submission that she is not required to show some basis in fact that the alleged conspiracy actually was carried out. However, she is obliged at least to show that there is some evidentiary foundation to conclude that the alleged conspiracy with attendant harm to the Class Members could or might have occurred in Canada. She is required to show some basis in fact that the unlawful means conspiracy or the predominant purpose to injure conspiracy could have or might have existed in Canada.

[265] As the analysis below will reveal, Ms. Lilleyman has not and could not succeed in that mission. The Defendants’ submissions are not an early merits defence to Ms. Lilleyman’s proposed class action. Rather, the defendants’ submissions have led me to do what the Supreme Court directed in Pro-Sys Consultants Ltd. v. Microsoft Corporation,[^100] namely: a meaningful screening device with a sufficient level of analysis into the sufficiency of the evidence to ensure that the proposed class action satisfies the modest evidentiary requirements of the certification criteria.

J. Cause of Action Criterion

1. General Principles

[266] The first criterion for certification is that the plaintiff’s pleading discloses a cause of action.

[267] The “plain and obvious” test for disclosing a cause of action from Hunt v. Carey Canada,[^101] is used to determine whether a proposed class proceeding discloses a cause of action for the purposes of s. 5(1)(a) of the Class Proceedings Act, 1992.[^102] The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. To satisfy the first criterion for certification, a claim will be satisfactory, unless it has a radical defect, or it is plain and obvious that it could not succeed.[^103]

[268] In R. v. Imperial Tobacco Canada Ltd.,[^104] the Supreme Court of Canada noted that although the tool of a motion to strike for failure to disclose a reasonable cause of action must be used with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges to focus their attention on claims with a reasonable chance of success. Chief Justice McLachlin stated:

Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before McAlister (Donoghue) v. Stevenson, [1932] A.C. 562 (U.K. H.L.) introduced a general duty of care to one’s neighbor premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (U.K. H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in McAlister (Donoghue) v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

[269] In Atlantic Lottery Corp. Inc. v. Babstock,[^105] the Supreme Court stated that the test applicable on a motion to strike is a high standard that calls on courts to read the claim as generously as possible because cases should, if possible, be disposed of on their merits based on the concrete evidence presented before judges at trial. However, Justice Brown stated that it is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings.[^106]

[270] In a proposed class proceeding, in determining whether the pleading discloses a cause of action, no evidence is admissible, and the material facts pleaded are accepted as true, unless patently ridiculous or incapable of proof. The pleading is read generously, and it will be unsatisfactory only if it is plain, obvious, and beyond a reasonable doubt that the plaintiff cannot succeed.[^107]

[271] Bare allegations and conclusory legal statements based on assumption or speculation are not material facts; they are incapable of proof and, therefore, they are not assumed to be true for the purposes of a motion to determine whether a legally viable cause of action has been pleaded.[^108]

[272] Matters of law that are not fully settled should not be disposed of on a motion to strike an action for not disclosing a reasonable cause of action,[^109] and the court’s power to strike a claim is exercised only in the clearest cases.[^110] The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff.[^111] However, a novel claim must have some elements of a cause of action recognized in law and be a reasonably logical and arguable extension of established law.[^112] In the Ontario Court of Appeal's decision in Darmar Farms Inc. v. Syngenta Canada Inc.,[^113] Justice Zarnett stated:

The fact that a claim is novel is not a sufficient reason to strike it. But the fact that a claim is novel is also not a sufficient reason to allow it to proceed; a novel claim must also be arguable. There must be a reasonable prospect that the claim will succeed.

2. Discussion and Analysis: The Cause of Action Criterion

[273] Ms. Lilleyman advances four causes of action: (a) breach of Part VI of the Competition Act, which is a type of conspiracy; (b) conspiracy by unlawful means; (c) predominant purpose to injure conspiracy; and (d) unjust enrichment.

[274] In her Statements of Claim, for the purpose of pleading these four causes of action, Ms. Lilleyman groups the defendants with their parent companies, subsidiaries and affiliates, and other entities to form three groups.

[275] The first group is comprised of defendants connected to Bumble Bee Foods LLC, one of the conspirators in the United States. In this group, Connors Bros Clover Leaf Seafoods is the avatar of Bumble Bee Foods LLC. In this group, Lion Capital LLP, Lion Capital (Americas) Inc. and Lion/Big Catch Cayman LP are treated as if they were one thing, a subgroup of the group.

[276] The second group is connected to COSI, another conspirator in the United States. In this group, Thai Union Group is not differentiated from its subsidiary COSI.

[277] The third group focuses on the StarKist Company or its StarKist brand. The StarKist Company was the third conspirator in the United States. In this group, the Del Monte Corporation and Dongwon Industries Limited (“DWI”) are members. DWI is not differentiated from its subsidiary the StarKist Company.

[278] The quintessence of all of Ms. Lilleyman’s causes of action is that there was a price-fixing conspiracy involving a group of conspirators (the Defendants) who had the market power to move the whole market for canned tuna in Canada and who did move the market thereby causing harm to direct purchasers, indirect purchasers, and umbrella purchasers. The alleged price-fixing conspiracy is the quintessence of the statutory claims, both types of common law civil conspiracy claims, and the basis for an unjust enrichment claim. If there is no properly pleaded conspiracy, then the cause of action criterion is not satisfied for any of the four causes of action.

[279] The Defendants, who deny being conspirators, perhaps ironically, have come together co-operatively to deliver a joint response to the allegation that they are conspiring together. They submit that there are fatal flaws in how Ms. Lilleyman pleads her price-fixing conspiracies. The Defendants submit that they are each entitled to know the case that they individually have to meet, including details of the material facts of their respective roles in the price-fixing conspiracy. The Defendants submit that in a kind of pleadings sleight of hand, Ms. Lilleyman identifies the individual Defendants and how they were present during the time of the conspiracy, but then, she just groups each member of the three groups of Defendants into a single group. She groups all the Defendants together without ever identifying how it is that each Defendant contributed or participated in the conspiracy.

[280] Relying on David v. Loblaw,[^114] where this group-the-defendants-together approach failed to satisfy the cause of action criterion for some of the defendants and Jensen v. Samsung Elec. Co. Ltd.,[^115] where this group-the-defendants-together approach failed altogether, the Defendants submit that Ms. Lilleyman’s pleading does not satisfy the cause of action criterion.

[281] Ms. Lilleyman’s response is that her pleading is adequate and even more than adequate given the context of a certification motion. She submits that given that: (a) conspiracies are clandestine; (b) certification motions take place before the discovery phase of an action, where the truth can be revealed; (c) certification motions are not merits determinations; and (d) the cause of action criterion is measured by assuming the pleaded facts are true, she has more than satisfied the cause of action criterion. She adds that numerous price-fixing conspiracies like hers have been certified and that these precedents support her arguments that she has satisfied the cause of action criterion.

[282] For my part, I agree with the Defendants’ argument. Ms. Lilleyman’s Amended Statement of Claim does not satisfy the cause of action criterion. As the analysis below will also reveal, she has not pleaded nor would she be able to plead the material facts necessary to join each co-defendant as a co-conspirator. As noted above in the discussion of the legal background to a conspiracy claim, a plaintiff cannot just group some or all of the defendants and attribute wrongdoing to all of them together, and a plaintiff must attribute particular material facts to specific defendants. I conclude that Ms. Lilleyman’s argument is not assisted by the precedents of other competition law cases.

[283] When her Amended Statements of Claim are analyzed for: (a) the material facts that are to be taken to be true; (b) the material facts that are ridiculous or that are incapable of proof that are not to be taken as true; (c) the pleaded material that are conspicuously missing; (d) the material facts that are inconspicuously missing; and (e) the grouping and subgrouping of the Defendants (the sleight of hand), then what is revealed is that there is no basis for sending Ms. Lilleyman’s action to the discovery phase of a class action.

[284] An analysis of the material facts pleaded and an analysis of what is conspicuously and inconspicuously not pleaded in Ms. Lilleyman’s Amended Statements of Claim reveals that the cause of action criterion is not satisfied. As it happens, this conclusion, which is not a merits determination, is confirmed by the some-basis-in-fact analysis of the common issues criterion that actually reveals that a price-fixing conspiracy in Canada did not exist.

[285] Put somewhat differently, if the Defendants could have been grouped or sub-grouped together, which is sometimes possible, then Ms. Lilleyman would have satisfied the cause of action criterion. However, the immediate case is not one in which the Defendants can be treated without differentiation. In the immediate case, when the grouping together of the Defendants is analytically sieved to separate and un-lump the alleged conspirators, at least fourteen substantive pleading errors of commission and/or omission are revealed. The fourteen pleading deficiencies show that the Defendants’ arguments that Ms. Lilleyman’s Statements of Claim are fundamentally flawed and do not satisfy the cause of action criterion are correct. The evidentiary record for the certification motion reveals that no purpose would be served by granting Ms. Lilleyman leave to amend her already Amended Statements of Claim.

[286] First, there are no material facts pleaded that would implicate COSI to a price-fixing conspiracy or a conspiracy to injure occurring in Canada, where COSI’s Chicken of the Sea brand was not a presence in the marketplace. In this regard, it should be appreciated that at the heart of a price-fixing conspiracy is the control of the output of the conspirators, but COSI had no output in the Canadian marketplace to control.

[287] Second, it is unprovable that the StarKist Company had a role in a price-fixing conspiracy or a conspiracy to injure tuna consumers in Canada because the StarKist brand was not sold in Canada, the StarKist Company having been exiled from the Canadian marketplace in 1989. The StarKist Company had no canned tuna output to control in the Canadian market, and, moreover no material facts are pleaded as to what role it played in the alleged conspiracy and it cannot be grouped together with other Defendants.

[288] Third, recognizing the fundamental principle of corporate law that the shareholders are not liable for the misdeeds of their corporation, there are insufficient material facts pleaded to pierce the corporate veil or to establish that the Del Monte Corporation and, or Dongwon Industries Company Limited (“DWI”) were liable for participating in the price fixing conspiracy because of their respective connections to the StarKist Company or the StarKist brand. Neither of these Defendants can be grouped together with other Defendants.

[289] Fourth, Thai Union Group has no role in a price-fixing conspiracy or a conspiracy to injure tuna consumers in Canada because it was not a competitor of the alleged price fixers; rather the Thai Union Group was a supplier of unbranded canned tuna to the alleged price-fixing conspirators and to their competitors who are not alleged to be parties to any conspiracy. After 2010, the actus reus of s. 45 is a conspiracy with a competitor to fix, maintain, increase, or control the price of a product and accordingly s. 45 has no application to a defendant who is not a competitor.[^116] Before 2010, Thai Union Group was a cannery not an emanation of the Jim Pattison Group and Thai Union Group had no role in a conspiracy in Canada amongst the canned tuna suppliers, and it cannot be just grouped together with COSI or any of the other Defendants.

[290] Fifth, recognizing the fundamental principle of corporate law that corporations are separate legal entities and that its shareholders are not liable for the misdeeds of their corporation, the material facts pleaded are insufficient to pierce the corporate veil or to establish that Thai Union Group is a co-conspirator based on its own misconduct.

[291] Sixth, recognizing the fundamental principle of corporate law that corporations are separate legal entities, it is not capable of proof that Bumble Bee Foods LLC, whose Bumble Bee brand of tuna was not sold in Canada, was a participant in a price-fixing conspiracy in Canada because a sister corporation, Connors Bros Clover Leaf Seafoods, was selling Clover Leaf brand tuna in Canada.

[292] Seventh, recognizing the fundamental principle of corporate law that corporations are distinct legal entities, there are no material facts pleaded that would make Connors Bros Clover Leaf Seafoods liable for the conspiratorial misdeeds of Bumble Bee Foods LLC, which misdeeds took place in the United States and not Canada.

[293] Eighth, the material facts do not support the idea that Connors Bros Clover Leaf Seafoods was the puppet of Bumble Bee Foods LLC or vice versa or that either company was incorporated for some fraudulent purposes. Neither of these Defendants can be grouped together with other Defendants.

[294] Ninth, recognizing the fundamental principle of corporate law that corporations are separate legal entities, the material facts pleaded are insufficient to pierce the corporate veil or to establish that Lion Capital LLP, Lion Capital (Americas) Inc. and Lion/Big Catch Cayman LP are co-conspirators based on their own misconduct. These Defendants cannot be grouped together with other Defendants.

[295] Tenth, if it was the case that Bumble Bee Foods LLC and Connors Bros Clover Leaf Seafoods had conspired to fix tuna prices in Canada, then it is plain and obvious that the conspiracy would have had to be with a competitor in the Canadian marketplace, but the alleged co-conspirators the COSI, Thai Union Group, and Starkist Company, were not competitors in the Canadian marketplace. (There is also the oddity that Bumble Bee Foods LLC’ and Connors Bros Clover Leaf Seafoods’ owners between 2004 to 2010 (ConAgra and Centre Partners) are not joined as co-Defendants.)

[296] Eleventh, the essential material facts of Ms. Lilleyman’s case are that a three-year conspiracy was proven to exist in the United States amongst: (a) COSI, (b) Bumble Bee Foods LLC, and (c) the StarKist Company; however, there are no material facts that support a twenty-year conspiracy in Canada amongst: (a) the StarKist Company, (b) COSI, (c) Thai Union Group, (d) Bumble Bee Foods LLC; and (e) Connors Bros Clover Leaf Seafoods.

[297] Twelfth, taking each of the Defendants separately, the material facts for a predominant purpose conspiracy to injure Canadian consumers of canned tuna are not pleaded. Indeed, taking the Defendants as a group of conspirators or as individuals, the material facts do not indicate a predominant purpose conspiracy. Assuming that the unlawful means conspiracy was not established and the conduct of the Defendants was lawful marketplace conduct, it is a fantasy to suggest that the material facts that have been pleaded could establish that the Defendants carried out their lawful activity for the predominant purpose of harming Canadian consumers of tuna. As noted above, unless an unlawful means is used, an ordinary commercial transaction or business competition designed to advance one’s economic interests, does not constitute a conspiracy to injury even though the complaining party may suffer an economic loss as a result.

[298] Thirteenth, COSI, Bumble Bee Foods LLC, Lion Capital LLP, Lion Capital (Americas) Inc. and Lion/Big Catch Cayman LP, the StarKist Company, the Del Monte Corporation and the Dongwon Industries Company Limited (“DWI”) cannot be liable for a breach of s. 46 of the Competition Act because they do not carry on business in Canada.

[299] Fourteenth, the material facts that are pleaded do not indicate how and when and to what purpose each alleged conspirator came to a meeting of the minds with regard to the commission of the alleged conspiracy and the material facts pleaded do not set out any particular overt acts undertaken by each defendant in furtherance of the alleged conspiracy. The pleaded material facts assume but do not demonstrate multilateral action that would constitute an illegal meeting of the minds and an illegal agreement to agree to fix prices as distinct from conscious parallelism, which is not illegal.

[300] These observations make it plain and obvious that Ms. Lilleyman has not pleaded a price-fixing conspiracy that would animate her four causes of action including the unjust enrichment claim, which is totally derivative of the three conspiracies.

[301] Each class action must be analyzed on its own to determine whether the various certification criteria are satisfied, but I agree with the Defendants’ argument that relies on David v. Loblaw,[^117] where this group-the-defendants-together approach failed to satisfy the cause of action criterion for some of the defendants and Jensen v. Samsung Elec. Co. Ltd.,[^118] where this approach failed altogether. I am however not applying those cases; they simply support the Defendants’ arguments.

[302] I appreciate that there are precedent class action certification decisions in which defendants have been grouped together and the pleading has been found sufficient to satisfy the cause of action criterion. I do not doubt the correctness of those decisions, but I repeat that each class action must be analyzed on its own to determine whether the various certification criteria are satisfied.

[303] In the immediate case, Ms. Lilleyman’s very ambitious proposed class action about a twenty-year conspiracy encompassing the U.S. and Canada cannot be spun out of a proven three-year conspiracy in the U.S. The three Defendants in the U.S. conspiracy cannot easily be connected to Canada, as was the case in some of the precedent certification decisions, where the very same product was being sold in Canada and in the United States. If it had been the case that Bumble Bee branded tuna, Chicken of the Sea branded tuna, and StarKist branded tuna were being sold in both Canada and the United States, then these precedent decisions would be helpful to Ms. Lilleyman; however, none of these brands were being sold in Canada and the Canadian marketplace is not a mirror image of the American marketplace.

[304] I conclude that Ms. Lilleyman has not satisfied the cause of action criterion.

K. Identifiable Class Criterion

1. Identifiable Class Criterion: General Principles

[305] The second certification criterion is the identifiable class criterion. The definition of an identifiable class serves three purposes: (1) it identifies the persons who have a potential claim against the defendant; (2) it defines the parameters of the lawsuit so as to identify those persons bound by the result of the action; and (3) it describes who is entitled to notice.[^119]

[306] In defining the persons who have a potential claim against the defendant, there must be a rational relationship between the class, the cause of action, and the common issues, and the class must not be unnecessarily broad or over-inclusive.[^120] An over-inclusive class definition binds persons who ought not to be bound by judgment or by settlement, be that judgment or settlement favourable or unfavourable.[^121] The rationale for avoiding over-inclusiveness is to ensure that litigation is confined to the parties joined by the claims and the common issues that arise.[^122] A proposed class definition, however, is not overbroad because it may include persons who ultimately will not have a successful claim against the defendants.[^123]

[307] The class must also not be unnecessarily narrow or under-inclusive. A class should not be defined wider than necessary, and where the class could be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of the class be amended.[^124]

2. Discussion and Analysis: Identifiable Class Criterion

[308] In the immediate case, it is academic whether the identifiable class criterion is satisfied because I have already determined that the cause of action criterion has not been certified and I have foreshadowed that the common issues criterion is also not satisfied. However, assuming that those conclusions are wrong and there is an appeal, it is appropriate to analyze the identifiable class criterion on the assumption that Ms. Lilleyman’s action is otherwise certifiable.

[309] With that assumption, insofar as the class definition is concerned, the Defendants focus on the circumstances that the proposed class period extends from July 1, 2008 to the present, but the proven conspiracy in the United States was just for the period between 2011 and 2013. Thus, the Defendants make the following five submissions.

[310] First, the Defendants submit there is no basis in fact that the class definition is satisfied for the period between 2008 to 2011 or for the period between 2013 and 2023.

[311] Second, the Lion Capital Defendants submit that there is no basis in fact to certify the claims against them for the period before December 2010 because it was only after December 2010 that they became equity owners of Bumble Bee Foods LLC and Connors Bros Clover Leaf Seafoods.

[312] Third, the Del Monte Corporation submits that there is no basis to certify the claims against it after October 2008, when it sold the StarKist brand to Dongwon Industries Company Limited (“DWI”).

[313] Fourth, the StarKist Company submits that there is no basis to certify the claims against it during the period that the StarKist brand was owned by the Del Monte Corporation, because the StarKist Company, as such, did not exist as a corporate entity during that period.

[314] Fifth, Dongwon Industries Company Limited (“DWI”) submits that there is no basis to certify the claims against it before October 2008 when it acquired the re-established StarKist Company.

[315] Notwithstanding these submissions, in my opinion, on the assumption that the cause of action criterion has been satisfied, then the class definition is satisfactory.

[316] In my opinion, the Defendants have conflated the duration of their involvement with the conspiracy, which would be relevant to an apportionment of liability as amongst the co-conspirators, with their joint and several liability for the damage caused by their participation in the conspiracy.

[317] In other words, on the assumption that the cause of action criterion has been satisfied, the Class Members can identify themselves and their causes of action align with the potential claims against the Defendants who will vis-à-vis the Class Members be jointly and severally liable for the damages suffered if it is proven that at some time were co-conspirators.

[318] For example, assuming it was proven that there was a conspiracy for the period between 2004 (or 2008) to 2023, and it was proven that the Lion Capital Defendants had a role to play after 2010, when they joined the conspiracy, then the Lion Capital Defendants would be jointly and severally liable to the Class Members but the Lion Capital Defendants would have a claim for contribution and indemnity against the Defendants who conspired and caused harm to the Class Members for the period between 2004 (or 2008) to 2010.

[319] I conclude that the identifiable class criterion is satisfied in the immediate case.

L. Common Issues Criterion

1. General Principles

[320] The third criterion for certification is the common issues criterion. For an issue to be a common issue, it must be a substantial ingredient of each class member’s claim and its resolution must be necessary to the resolution of each class member’s claim.[^125]

[321] The underlying foundation of a common issue is whether its resolution will avoid duplication of fact-finding or legal analysis of an issue that is a substantial ingredient of each class member’s claim and thereby facilitate judicial economy and access to justice.[^126]

[322] An issue is not a common issue, if its resolution is dependent upon individual findings of fact that would have to be made for each class member.[^127] Common issues cannot be dependent upon findings which will have to be made at individual trials, nor can they be based on assumptions that circumvent the necessity for individual inquiries.[^128] All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent. The answer to a question raised by a common issue for the plaintiff must be capable of extrapolation, in the same manner, to each member of the class.[^129]

[323] The common issue criterion presents a low bar.[^130] An issue can be a common issue even if it makes up a very limited aspect of the liability question and even though many individual issues remain to be decided after its resolution.[^131] Even a significant level of individuality does not preclude a finding of commonality.[^132]A common issue need not dispose of the litigation; it is sufficient if it is an issue of fact or law common to all claims and its resolution will advance the litigation.[^133]

[324] As noted in the discussion above of the general principles on a certification motion, from a factual perspective, the plaintiff must show that there is some basis in fact that: (a) the proposed common issue actually exists; and (b) the proposed issue can be answered in common across the entire class, which is to say that the Plaintiff must adduce some evidence demonstrating that there is a colourable claim or a rational connection between the Class members and the proposed common issues.[^134]

2. Discussion and Analysis: Common Issues Criterion

[325] Because Ms. Lilleyman’s proposed class action does not satisfy the cause of action criterion, it is academic whether she has satisfied the common issues criterion. However, given the possibility of an appeal, I shall assume that she has satisfied the cause of action criterion and analyze whether her action satisfies the common issues criterion.

[326] A certification motion is not a merits test, but it is a motion that requires (a) evidence; (b) the evidence must meet the standards of the law of evidence for a motion under the Rules of Civil Procedure, which is to say with some preconditions, hearsay evidence is admissible; and (c) the evidence must show some basis in fact, which is a very low test standard, for the common issues criterion.

[327] In the immediate case, Ms. Lilleyman’s proposed class action does not satisfy the evidentiary standard, low as it very much is, for the common issues criterion.

[328] In the immediate case, there is no basis in fact for the common issues criterion for the liability questions. Analyzing the evidence proffered by both sides and the voluminous documentary record shows that Ms. Lilleyman’s case does not meet the standard of showing some basis in fact for a common issue about an unlawful means conspiracy or a predominant purpose to injure conspiracy.

[329] Analyzing the evidence proffered on the certification motion by Ms. Lilleyman about the alleged conspirators shows that even if the conspirators are assembled into three conspirator groups, there is no combination that had the motive, means, and opportunity to conspire to sell tuna at supracompetitive prices. Amongst other deficiencies, the evidence fails a “it takes two to tango” test for a conspiracy.

[330] Analyzing the evidence proffered for the certification motion, the conspiracy to sell canned tuna that existed in the United States had three conspirators; namely (a) Bumble Bee Foods LLC; (b) COSI; and (c) StarKist Company. It is Ms. Lilleyman’s theory of her case that this tripartite conspiracy also existed in Canada where: (a) the Canadian Bumble Bee Foods LLC is comprised of itself, Connors Bros Clover Leaf Seafoods Company, and the Lion Capital Group; (b) the Canadian COSI is comprised of itself and the Thai Union Group; and (c) the Canadian Starkist Company is comprised of itself, the Del Monte Corporation, and Dongwon Industries Company Limited (DWI).

[331] However, an analysis of the evidence about the Canadian Bumble Bee Foods LLC, the Canadian COSI; and Canadian StarKist Company reveals that accepting that the Canadian Bumble Bee Foods LLC had the largest market share for canned tuna and had the motive to conspire to sell its tuna at supracompetitive prices, then there is no basis in fact that the Canadian COSI and the Canadian StarKist Company could be its co-conspirators. This follows because the Canadian COSI was a cannery, not a seller of canned tuna to direct, indirect, or umbrella purchasers of off-the-shelf cans of tuna and the Canadian StarKist Company was not operating in Canada to sell to direct, indirect, or umbrella purchasers of off-the-shelf cans of tuna. Ms. Lilleyman’s theory was that Thai Union Group was the equivalent of the Jim Patterson Group, but the Thai Union Group was just a cannery for the Jim Patterson Group amongst others including the supermarkets.

[332] Put differently, accepting that the Canadian Bumble Bee Foods LLC had the largest market share for canned tuna in Canada, was selling Bumble Bee brand tuna in Canada, and had the motive to conspire to sell its tuna at supracompetitive prices, the Canadian Bumble Bee Foods LLC would need to conspire with the Jim Patterson Group or with the group of supermarkets that are alleged to have fixed bread prices in the David v. Loblaw case, to form a price-fixing oligopoly, but there is no basis in fact for the existence of such a conspiracy.

[333] Further, the economic evidence that was provided by Dr. Meer in accordance with the instructions of Ms. Lilleyman’s lawyers as to whether there was some basis in fact for a conspiracy to sell canned tuna at supracompetitive prices existing in the Canadian marketplace and for a methodology to calculate the harm caused to direct, indirect, and umbrella purchasers revealed that the market conditions for a price-fixing cartel in Canada did not exist. And her expert evidence revealed that it was not the case that there is some basis in fact for a price-fixing conspiracy existing in Canada.

[334] I accept Dr. Meer’s expert evidence that there are preconditions to the existence of a price-fixing conspiracy. She used that expertise to opine that the market conditions in Canada were conducive to a price-fixing conspiracy in Canada. However, the factual underpinning for that opinion was based on her misunderstanding the true state of the market conditions in Canada. Applying her expertise to the correct factual underpinning reveals that the market conditions were unconducive to the existence of a price-fixing conspiracy in Canada.

[335] Ms. Lilleyman submits that Dr. Meer’s evidence that there is some basis in fact for a price-fixing conspiracy existing must be accepted because a certification motion is not a merits hearing and since the Supreme Court of Canada has directed that a certification motion is not the place to resolve contested expert evidence, then a fortiori, Dr. Meer’s evidence should be accepted in a case where the Defendants did not proffer expert evidence.

[336] The fallacy, however, in that submission is that Dr. Meer’s evidence contradicted itself and her evidence is not to be saved by the circumstance that the Defendants did not rub salt into her wounded evidence by calling a rebuttal expert witness. Dr. Meer’s knowledge of economic principles appears to be sound, but her assumptions or her facts about the Canadian marketplace and the firms operating in it are totally unsound and her opinion cannot form some basis in fact for a conspiracy existing in Canada. Accepting Dr. Meer’s evidence about what are the conditions conducive to a price-fixing conspiracy existing, those conditions did not exist in Canada.

[337] Even accepting her evidence that the market conditions in Canada were conducive to a price-fixing conspiracy, her evidence did not show some basis in fact for that potentiality being an actuality. Visualize, even accepting (contrary to the true facts) that the Canadian Bumble Bee Foods LLC was selling its brand of tuna (called Clover Leaf) in Canada, there is no basis in fact that the Canadian Bumble Bee Foods LLC conspired with the Jim Pattison Group, the major grocery stores or the minor vendors of canned tuna in Canada.

[338] It takes at least two to dance the conspiracy tango and the Canadian Bumble Bee Foods LLC (unlike the American Bumble Bee Foods LLC) had no conspiracy dance partners like COSI or the StarKist company, neither of which were selling canned tuna in Canada.

[339] I do not need to rely on Ms. Buchanan’s evidence to rebut Dr. Meer’s opinion evidence, which rebuts itself when the genuine factual circumstances of the Canadian marketplace are applied to Dr. Meer’s economic principles about the operation of oligopolies conspiring to fix prices. Analyzing Dr. Meer’s evidence shows that while there might be motive, means, and opportunity outside Canada, there was no motive, no means, and no opportunity for criminal activity in Canada to fix the price for canned tuna.

[340] Moreover, as against the Defendants individually, there are the problems mentioned earlier in the context of the cause of action criterion about errors of commission or omission about the material facts and about the grouping of the Defendants that fuel the argument that a conspiracy to price fix or to harm Canadian consumers of canned tuna could not and did not exist. Thus, the evidence focusing on the alleged conspirators in Canada does not show some basis in fact for common issues about their liability for any of the four causes of action.

[341] Fairview Donut Inc. v. TDL Group Corp.,[^135] David v. Loblaw,[^136] Hazan c. Micron Technology Inc,[^137] and Jensen v. Samsung Elec. Co. Ltd.,[^138] are cases in which courts have concluded that there was no basis in fact for a common issue about the existence of a conspiracy as against some or all of the defendants. The case at bar is similar.

[342] I, therefore, conclude that the common issues criterion is not satisfied for the common issues associated with liability. The questions are set out above under the heading “Procedural Background” and are numbered 1, 2, 3, 5, 6, 8, 9, 11, 12, 14, 15, and 16.

[343] I shall deal with the aggregate damages questions (4, 7, and 10) and punitive damages below.

(a) The Commonality of Damages to the Putative Class Members

[344] There is a second reason for concluding that the common issues criterion is not satisfied in the immediate case. This reason applies to all of the proposed common issues.

[345] A prerequisite for the certification of a competition law class action is that there be a common issue about the calculation of the Class Members’ damages across the class. In Pioneer Corp. v. Godfrey,[^139] Justice Brown (writing for Chief Justice Wagner, and Justices Abella, Moldaver, Karakatsanis, Rowe, and Martin) stated at paragraph 107:

107. […] [F]or a court to certify loss-related questions as common issues in a price-fixing class proceeding, it must be satisfied that the plaintiff has shown a plausible methodology to establish that loss reached one or more purchasers -- that is, claimants at the "purchaser level". For indirect purchasers, this would involve demonstrating that the direct purchasers passed on the overcharge.

[346] In Pioneer Corp. v. Godfrey, Justice Brown also adopted what I had written in Shah v. LG Chem, Ltd.,[^140] at paragraph 69:

69. Thus, for the purposes of certification, the methodology about the existence of loss need only be shown to be a plausible one that the passing-on reached the indirect purchaser level of the distribution channel and that there might be individual issues about whether any particular class member experienced illegal price-fixing. If the plaintiff’s expert’s methodology failed in proof at trial, then the class members’ claim would fail across the indirect class members’ class because each and every one of them would have failed to prove a constituent element of their cause of action; i.e., that the price-fixing penetrated their place or “level” of the distribution channel, and the Defendants would secure a discharge of liability against all the class members. Conversely, if the methodology proved sound to show that overcharges reached the indirect purchaser place in the distribution channel, then there might have to be individual issues trials to determine each class member’s entitlement.

[347] The methodology relating to the harm suffered by indirect purchasers or umbrella purchasers cannot be purely theoretical and must be grounded on the facts of the particular case and must be sufficiently credible or plausible to establish loss on a class wide basis. The methodology must be capable of showing that the harm was passed on or reached the indirect purchaser, end purchaser, or umbrella purchaser level in the particular circumstances of the case, but the methodology need not demonstrate that every purchaser at that level suffered a loss and need not be capable of identifying which purchasers did not suffer a loss.[^141] There must also be evidence that the data for the methodology is available to be applied.[^142] The methodology must be realistic but not compelling and it is not necessary to identify the specific data that would be required.[^143]

[348] Thus, questions relating to the harm suffered by indirect purchasers in a price-fixing case may be certified as common issues in a class action if the plaintiff can show that there is a methodology to establish that overcharges have been passed on to the indirect purchaser level.[^144] And, thus questions relating to the harm suffered by umbrella purchasers in a price-fixing case may be certified as a common issue in a class action, if the plaintiff can show that there is a methodology to establish that the overcharges have been suffered by the umbrella purchasers.[^145]

[349] In Chadha v. Bayer Inc.,[^146] the class action was not certified because the plaintiff failed to show a methodology of damages to account for the passing-on of the supracompetitive prices.

[350] In several cases, the class action was certified for the indirect purchasers but not the umbrella purchasers because the court was satisfied about the methodology for the direct purchasers but not for the umbrella purchasers.[^147]

[351] Ms. Lilleyman attempted to satisfy the prerequisite of showing a methodology to prove class-wide damages with the expert evidence of Dr. Meer. In her report, Dr. Meer opined that there are methodologies to quantify overcharges, pass-through, and damages and that these methodologies are applicable to the facts of this case.

[352] Dr. Meer opined that accepted methods can be used to estimate aggregate damages for direct purchasers, indirect purchasers, and umbrella purchasers. She said that these methods would incorporate transaction-level data and could further include canned tuna-specific factors such as costs and trends in consumer preferences. The precise specification of the model would be guided by market-specific information made available in discovery. During cross-examination, Dr. Meer said she was confident that an economist could develop a regression that would address the market issues of the consumer tuna market in Canada.

[353] Earlier in these Reasons for Decision, I sketched out how complex the calculation of damages might be in a competition law case. Dr. Meer’s confidence that these challenges could be met in the immediate case may not be well placed, but, in any event, we have not reached the state of the certification art where it can be assumed that there will be a methodology to prove that the damages from an economic harm reach the various levels of indirect purchasers, which in the immediate case, would not only include end users like Ms. Lilleyman but also many others.

[354] There are many different types of indirect purchasers for canned tuna. Visualize: restaurants and even courthouse cafeterias purchase canned tuna for tuna sandwiches and hospitals purchase canned tuna for their patients and staff. Train and airlines and ship operators purchase tuna for food service during travel. Construction site catering truck operators purchase tuna for their clientele. The list goes on and on and on because as pleaded by Ms. Lilleyman tuna is a staple in the diet of Canadian consumers. For present purposes, the point is that Dr. Meer appears to have underestimated the challenges of determining how much of a price increase will be absorbed by the direct purchasers and how much will be passed on to the indirect purchasers and she appears to have underestimated the even more formidable problems of dealing with umbrella purchasers.

[355] While I respect Dr. Meer’s qualifications to opine on whether there is a damages methodology to address the intricacies of the immediate case, her report does not meet the standard that the Supreme Court of Canada has set for a certification motion.

[356] Moreover, there is another significant problem with Dr. Meer’s opinion about a damages methodology for Ms. Lilleyman’s case. Having opined about the possibility of a damages methodology with data available after examinations for discovery, Dr. Meer did not actualize that methodology by describing it other than in theoretical terms and having not actualized that methodology she was not in a position to say whether there would be the data available for the methodology to be applied. In other words, her evidence failed the test set by the Supreme Court of Canada that there must also be evidence that the data for the methodology is available to be applied.[^148]

[357] Although the point is somewhat academic because the proposed class action is not certifiable for other reasons, it also is not certifiable because Ms. Lilleyman has not demonstrated that there is a methodology upon which a common issue about the harm caused by the alleged price-fixing conspiracy is available.

3. Aggregate Damages

[358] Pursuant to section 24 of the Class Proceedings Act, 1992, Ms. Lilleyman seeks to certify the issue of the availability and the calculation of aggregate damages as a common issue. Section 24 of the Act states:

Aggregate assessment of monetary relief

24. (1) The court may determine the aggregate or a part of a defendant’s liability to class members and give judgment accordingly where,

(a) monetary relief is claimed on behalf of some or all class members;

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

(c) the aggregate or a part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members.

Average or proportional application

(2) The court may order that all or a part of an award under subsection (1) be applied so that some or all individual class members share in the award on an average or proportional basis.

Idem

(3) In deciding whether to make an order under subsection (2), the court shall consider whether it would be impractical or inefficient to identify the class members entitled to share in the award or to determine the exact shares that should be allocated to individual class members.

[359] The Class Proceedings Act, 1992 is a procedural statute, and it does not create a new type of damages known as aggregate damages. All that s. 24(1) of the Class Proceedings Act does is that it recognizes that in certain circumstances depending upon the nature of the class members’ claims, it may be possible to avoid individual assessments of damages and arrive at a calculation of damages equal to what the defendant would have to pay if there were individual assessments.

[360] In Fulawka v. Bank of Nova Scotia,[^149] Chief Justice Winkler described the nature of aggregate damages at paragraph 122 as follows:

122. Finally, s. 24(1)(c) states that the aggregate of the defendant’s liability “can reasonably be determined without proof by individual class members.” This provision is directed at those situations where the monetary liability to some or all of the class is ascertainable on a global basis and is not contingent on proof from individual class members as to the quantum of monetary relief owed to them. In other words, it is a figure arrived at through an aggregate assessment of global damages, as opposed to through an aggregation of individual claims requiring proof from individual class members. I would describe the latter calculation as a “bottom-up” approach whereas the statute envisages that the assessment under s. 24(1) be “top down”.[^150]

[361] To certify a common issue about aggregate damages, a plaintiff must show that it is reasonably likely that the pre-conditions in s. 23(1) of the Class Proceedings Act, 1992 can be satisfied.[^151] Section 24(1)(c) sets out the condition that the aggregate or a part of the defendant's liability to some or all class members can reasonably be determined without proof by individual class members. Under s. 24(1) of the Class Proceedings Act, 1992, a court may award aggregate damages where: (i) monetary relief is claimed on behalf of some or all class members; (ii) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined; and (iii) the aggregate or a part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members. A plaintiff must be able to prove all the elements of his or her cause of action at the common issues trial to have a common issue about aggregate damages.[^152]

[362] For there to be an award of aggregate damages, the plaintiff must advance a methodology or show that there is a reasonable likelihood of assessing the defendant’s aggregate liability to the class without proof by individual class members. Aggregate damages cannot be ordered where “individual questions of fact relating to the determination of each class member’s damages remain to be determined”, or where there is no available data to determine what individual class members were owed.[^153] Aggregate damages are not appropriate where the use of non-individualized evidence is not sufficiently reliable, or where the use of that evidence will result in unfairness or injustice to the defendant, such as overstatement of its liability for damages.[^154] In other words, the Plaintiff must present a methodology that offers a realistic prospect of establishing aggregate damages on a class-wide basis.[^155]

[363] In the immediate case, Ms. Lilleyman relied on Dr. Meer’s evidence about the existence of a methodology to show that the damages were suffered at a class-wide level to establish that the aggregate damages questions should be certified as common issues. However, for the reasons described in the part of my Reasons for Decision immediately above, Ms. Lilleyman has not demonstrated the requisite methodology and, therefore, aggregate damages are not certifiable as a common issue in the immediate case.

(a) Punitive Damages

[364] In Palmer v. Teva Canada Ltd.,[^156] I endorsed the approach to punitive damages in class actions that has been developed in British Columbia. In several judgments, the British Columbia Court of Appeal held that a court should not certify punitive damages as a common issue based solely on the allegations contained in the pleadings.[^157] The Court held that the plaintiffs must point to material beyond the pleadings to establish a basis in fact for the certification of a common issue on punitive damages.

[365] In the immediate case, Ms. Lilleyman does not point to material facts beyond the pleadings to establish a basis in fact for the certification of a common issue on punitive damages. I, therefore, would not certify punitive damages in the immediate case had I otherwise certified the class action(s). What I would have done is to make the order without prejudice to Ms. Lilleyman applying after examinations for discovery to certify the issue of punitive damages.

M. Preferable Procedure Criterion

1. General Principles

[366] Under the Class Proceedings Act, 1992, the fourth criterion for certification is the preferable procedure criterion. Preferability captures the ideas of: (a) whether a class proceeding would be an appropriate method of advancing the claims of the class members; and (b) whether a class proceeding would be better than other methods such as joinder, test cases, consolidation, and any other means of resolving the dispute.[^158]

[367] In AIC Limited v. Fischer,[^159] the Supreme Court of Canada emphasized that the preferability analysis must be conducted through the lens of judicial economy, behaviour modification, and access to justice. Thus, for a class proceeding to be the preferable procedure for the resolution of the claims of a given class, it must represent a fair, efficient, and manageable procedure that is preferable to any alternative method of resolving the claims.[^160] Whether a class proceeding is the preferable procedure is judged by reference to the purposes of access to justice, behaviour modification, and judicial economy and by taking into account the importance of the common issues to the claims as a whole, including the individual issues.[^161] To satisfy the preferable procedure criterion, the proposed representative plaintiff must show some basis in fact that the proposed class action would: (a) be a fair, efficient and manageable method of advancing the claim; (b) be preferable to any other reasonably available means of resolving the class members’ claims; and (c) facilitate the three principal goals of class proceedings; namely: judicial economy, behaviour modification, and access to justice.[^162]

2. Discussion and Analysis – Preferable Procedure Criterion

[368] It is axiomatic that if there is no basis-in-fact for common issues, then there is no basis-in-fact for a class action satisfying the preferable procedure criterion.[^163] That is the situation in the immediate case.

[369] If loss cannot be determined at a common issues trial on a class-wide basis using common proof, the question of the defendants’ liability to the class members will inevitably devolve into countless individual issues, which will overwhelm any common issues and render the class proceeding unmanageable.[^164]

[370] I conclude that the preferable procedure criterion is not satisfied in the immediate case.

N. Representative Plaintiff Criterion

1. General Principles – Representative Plaintiff Criterion

[371] The fifth and final criterion for certification as a class action is that there is a representative plaintiff who would adequately represent the interests of the class without conflict of interest and who has produced a workable litigation plan. The representative plaintiff must be a member of the class asserting claims against the defendant, which is to say that the representative plaintiff must have a claim that is a genuine representation of the claims of the members of the class to be represented or that the representative plaintiff must be capable of asserting a claim on behalf of all of the class members as against the defendant.[^165]

2. Discussion and Analysis

[372] There was no challenge to Ms. Lilleyman satisfying the Representative Plaintiff criterion.

[373] There appears to be no basis for such a challenge, and I conclude that she satisfies this criterion for certification.

O. Conclusion

[374] For the above reasons, Ms. Lilleyman’s motions to certify her class actions as class proceedings are dismissed.

[375] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Defendants’ individual claims for costs within thirty days after the release of these Reasons for Decision followed by Ms. Lilleyman’s submissions within a further thirty days.

Perell, J.

Released: August 1, 2023

COURT FILE NO.:CV-17-00585108-00CP

COURT FILE NO.: CV-18-00607471-00CP

DATE: 20230801

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

VANESSA LILLEYMAN

Plaintiff

• and –

BUMBLE BEE FOODS LLC, CLOVER LEAF HOLDINGS COMPANY, CONNORS BROS. CLOVER LEAF SEAFOODS COMPANY, TRI-UNION SEAFOODS LLC o/a CHICKEN OF THE SEA INTERNATIONAL INC., THAI UNION GROUP PUBLIC COMPANY LIMITED, STARKIST COMPANY, DONGWON INDUSTRIES COMPANY LIMITED and DEL MONTE CORPORATION n/k/a BIG HEART PET BRANDS INC.

Defendants

AND BETWEEN:

VANESSA LILLEYMAN

Plaintiff

and

LION CAPITAL LLP, LION CAPITAL (AMERICAS) INC., and LION/BIG CATCH CAYMAN LP

Defendants

REASONS FOR DECISION

PERELL J.

Released: August 1, 2023

[^1]: S.O. 1992, c. 6. [^2]: R.S.C. 1985, c. C-34. [^3]: R.S.C. 1985, c. C-46. [^4]: P. Crémieux, M.Ginn, and M. Van Audenrode, Calculating Damages in Price-Fixing Cases in the United States, Canada, and the European Union (American Bar Association, Section of Litigation Class Actions and Derivative Suits Litigation Committee; 2017); C.F. Feasby and A. LaRoche, “Competition Act Class Actions – Copycat Litigation, Economic Incentives and the Question of Reform”, 2016 Annual Review of Civil Litigation 457; S.W. Corman and C. Wadsworth, Recent Developments in Competition Private Actions”, 2014 Annual Review of Civil Litigation 243; K.E. Thomson, A.F. Fanaki, and D. D. Akman, “One Hand Taketh Away: Recent Developments in Indirect Purchaser Competition Class Actions in Canada” (2011), 38 Advocates’ Quarterly 286; S.W. Corman and E.M. Rix, “The New Landscape for Competition Private Actions”, 2009 Annual Review of Civil Litigation 371; J.M. Perfoff, Microeconomics (5th ed.) (Toronto, Pearson Addison Wesley, 2009); C.S.T. Ragan and R.G. Lipsey, Microeconomics(12th Canadian Edition) (Toronto, Pearson Addison Wesley, 2008); T. Sowell, Basic Economics (3rd ed.) (New York, Perscus Books Group, 2007); G.A. Pitel (ed), Litigating Conspiracy – An Analysis of Competition Class Actions (Toronto, Irwin Law, 2006); J. Brander and T.W. Ross “Estimating Damages from Price-Fixing” (Research Gate, 2006, www.researchgate.net/publication/242175118.) and also published in G.A. Pitel (ed), Litigating Conspiracy – An Analysis of Competition Class Actions, supra. [^5]: Noble was a chemist, and there is also the mythic but unsubstantiated story that he was cuckolded by his mistress and a mathematician disinclining Nobel to award prizes to mathematicians. [^6]: S.C. 1889, c. 41. [^7]: An Act to protect trade and commerce against unlawful restraints and monopolies, chap. 647, 26 Stat. 209 (1890). [^8]: Sun Microsystems Inc. v. Hynix Semiconductor Inc., 608 F.Supp.2d 1166, (N.D. Cal. 2009); Am. Ad Mgmt., Inc. v. GTE Corp., 92 F.3d 781 (9th Cir. 1996). [^9]: Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Copperweld Corp. v. Independent Tube Corp., 467 U.S. 752 (1984); Theatre Enters., Inc. v. Paramount Film Distribution Corp., 346 U.S. 537 (1954). [^10]: White v. R.M. Packer Co., Inc., 635 F.3d 571 (1st Cir. 2011); Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993); The Jeanery, Inc. v. James Jeans, Inc., 849 F.2d 1148 (9th Cir. 1988). [^11]: Jensen v. Samsung Elec. Co. Ltd., 2021 FC 1185, aff’d 2023 FCA 89; Proulx c. R, 2016 QCCA 1425; [Atlantic Sugar Refineries Co. Ltd. et al v. Attorney General of Canada, 1980 226 (SCC)](https://www.canlii.org/en/ca/scc/doc/1980/1980canlii226/1