Parris v. Firmenich International SA et. al., 2026 ONSC 3922

Court File and Parties

CITATION: Parris v. Firmenich International SA et. al., 2026 ONSC 3922

COURT FILE NO.: CV-92672-CP

DATE: 2026-07-07

ONTARIO SUPERIOR COURT OF JUSTICE

RE: LANA PARRIS, Plaintiff

AND:

FIRMENICH INTERNATIONAL SA, DSM-FIRMENICH AG, FIRMENICH OF CANADA LIMITED, GIVAUDAN SA, GIVAUDAN CANADA CO., INTERNATIONAL FLAVOURS AND FRAGRANCES INC., INTERNATIONAL FLAVOURS AND FRAGRANCES INC. (CANADA) LTD., SYMRISE AG and SYMRISE PET FOOD CANADA (SPF), Defendants

Proceeding commenced under the Class Proceedings Act, 1992, S.O. 1992, c. 6, as amended

BEFORE: C. MacLeod RSJ

COUNSEL: Jean-Marc Leclerc, Adil Abdulla, David Jones and Michelle Segal, for the Plaintiff and the proposed class Samantha Gordon, and Rachel Wong, for the Symrise Defendants Nikiforos Iatrou and Akiva Stern, for the International Flavour Defendants Randall Hofley and Nicole Henderson, for the Givaudan Defendants Ted Brook, Eric Lefebvre and Lauren Rennie, for the Firmenich Defendants

HEARD: April 27, 28, 29 and 30, 2026

REASONS FOR DECISION

1This is a motion to certify this action as a national class proceeding pursuant to ss. 5 and 5.1 of the Ontario class proceedings legislation. (the Act)¹. The plaintiff alleges that the defendants are the largest manufacturers of "fragrance ingredients" worldwide and that they have engaged in an unlawful price-fixing conspiracy to fix or manipulate the prices of fragrance ingredients, fragrances and fragrance products contrary to Canadian anti-competition legislation², (the Competition Act).

2Section 36 of the Competition Act permits a private right of action for anyone who has suffered damage due to a conspiracy, agreement or arrangement to fix prices or to engage in other prohibited practices in restraint of trade. In addition to this statutory remedy, the plaintiff also seeks common law remedies for civil conspiracy and unjust enrichment.

3The defendants resist the motion. They argue that the plaintiff does not meet any of the tests for certification. In particular, they say, the claim consists of broad, vague allegations and cannot meet the "some basis in fact" test required at this stage of the proceeding. They also object that the proposed classes are broad and unmanageable. The class of purchasers of products would include almost everyone who lives in Canada who would have no means of self identifying as a member of the class. The defendants also dispute the admissibility of certain evidence and had brought a motion to strike which I had deferred to this hearing.

4The question of "some basis in fact" is the crux of the motion. How low is the bar for "some basis in fact"? The defendants say there is no factual basis underpinning the action at all while the plaintiffs argue that there is reason to suspect their allegations are true and "where there is smoke there is fire".

5As explained below, I agree with the defendants that the proposed action cannot meet the tests for certification. While the Ontario legislation does not include a merits-based screening requirement, the requirements for certification do not allow a class proceeding to be certified merely because the plaintiff suspects wrongdoing. There must be some evidence-based reason to conclude that a class proceeding is appropriate.

6I decline to certify this action as a class proceeding and the motion for certification is therefore dismissed.

Background and Context

7To briefly summarize the context, the defendants produce fragrance ingredients that are ultimately used in fragrances and in every kind of product with any kind of scent. Food flavourings are not included but otherwise these products or derivative products are ingredients in every scented product from perfume and cologne to candles, shampoo, soap, laundry detergent and fabric softener. The defendants collectively are said to account for almost two thirds of the global market share for fragrance ingredients.

8Seldom, if ever, would the defendants sell directly to consumers. In many instances, the products produced by the defendants will have passed through various stages of manufacturing, distribution and wholesaling before finding their way into consumer products. In most instances, the fragrance ingredient is a tiny percentage of the ingredients in the consumer product and accounts for a tiny percentage of the cost of manufacturing.

9Nevertheless, fragrances are both important and ubiquitous. The evidence is that scent is often a critical part of brand identity. In many instances, developers and manufacturers of products seek out a particular evocative scent and many such scents are both bespoke and proprietary. Fragrance ingredients are therefore significant, important and highly competitive.

10The plaintiff alleges that the defendants have engaged in a price fixing conspiracy. There is no direct evidence. There is not even indirect evidence such as prices moving in lockstep or inexplicable matching price reductions.

11What there is, however, is evidence that regulators in certain jurisdictions have reason to suspect anti-competitive behaviour by the defendants. Apparently, regulators in other countries including Switzerland, Mexico, the European Union, and United Kingdom have launched investigations. These investigations show that regulators are concerned that there may have been collusion in relation to the supply of fragrances. The purpose of the investigations is to determine if there has been violation of regulations that prohibit cartels and restrictive business practices. The plaintiff also asserts that there was a class proceeding in the United States and one of the defendants has settled that action. The particulars are not in evidence nor whether the settlement included any acknowledgement of wrongdoing.

12In one instance, an executive of one of the target defendants attempted to destroy evidence (deletion of WhatsApp messages) and that in turn led to charges, a guilty plea and a very substantial fine. The offence, however, was deletion of messages the regulator wished preserved ("spoliation") and not price fixing per se.

13There have been no prosecutions, successful or otherwise and, apart from the spoliation offence, no pleas of guilty or other admissions of wrongdoing. More than one of the original investigations has been terminated without charges being laid. There have been no regulatory proceedings or findings in Canada which would support the assertion that anything done by the defendants is in breach of the Competition Act. On the other hand, no regulator has ruled that there was no wrongdoing, nor that the investigation was ill founded. Some investigations are ongoing.

14In relation to the classes of individuals who might have suffered damages if the price fixing took place, it is acknowledged that it would require some complex analysis and that supply chains are international. Fragrance ingredient manufacturers might sell to fragrance manufacturers or suppliers who might in turn sell to other manufacturers or suppliers. In turn, products are sold to wholesalers and distributors and to product vendors before being sold to consumers. The number of layers of manufacturing, sub-manufacturing, distribution and sales would likely be different for different products.

15At this stage, it is impossible to say if price increases at one level would have been absorbed or passed on. The plaintiff would rely on expert testimony for such calculations but asserts that purchasers, indirect purchasers and "umbrella purchasers" all would have paid overcharges or artificially inflated prices as a consequence of the unlawful activity. It is proposed that an expert with access to the defendants' transactional and other data could provide evidence as to whether an overcharge occurred and whether it was passed on to indirect purchasers.

16Needless to say, it would be a rare Canadian that had never purchased any product containing a scent of some description. Almost everyone would therefore be a potential class member as an indirect purchaser. When "umbrella purchasers" are included, the class would be even more enormous. Umbrella purchasers are purchasers who did not purchase one of the products originating with one of the defendants but who "purchased products manufactured and supplied by someone other than the defendants" and who can show "that the defendants' price-fixing conduct raised the market price of the product" they did purchase.³ As a rising tide floats all boats, so price increases in particular types of products may trigger price inflation in related products.

17This gives rise to the potential for multiple overlapping classes. An individual might be a supplier or a wholesaler but also a consumer. The defendants argue that this makes the proposed classes and the proposed proceeding into a procedural quagmire in which no one could easily determine whether she or he is a member of a class and whether he or she suffered any kind of damage. The plaintiff, on the other hand, argues that these difficulties are precisely why a class proceeding is the only way to achieve substantive justice.

18The plaintiff proposes a single all-inclusive class defined as follows:

"Class" means all persons or entities ordinarily resident in Canada who purchased:

Fragrance Ingredients, Fragrances, or Fragrance Products (1) in Canada (2) during the Class Period (3) directly from the defendants or affiliates of the defendants ("Direct Purchasers");

Fragrances or Fragrance Products (1) in Canada (2) during the Class Period (3) that contain Fragrance Ingredients or Fragrances manufactured or sold by the defendants or affiliates of the defendants ("Indirect Purchasers");

Fragrances or Fragrance Products (1) in Canada (2) during the Class Period (3) that do not contain any Fragrance Ingredients or Fragrances manufactured or sold by the defendants or affiliates of the defendants ("Umbrella Purchasers").

19As discussed above, this definition would encompass every resident of Canada who purchased any kind of scented product between 2018 and the launch of this proceeding. It would be difficult for any individual to know if they were a direct, indirect or umbrella purchaser during the class period. It is highly unlikely that most class members would have kept records of what they purchased and when or what ingredients the products contained.

The test for certification

20The criteria for certification are set out in the Act and in the jurisprudence.⁴ Class proceedings are a method of pursuing collectively what could otherwise be a myriad of claims or claims that would not be practical to pursue on an individual basis. For that reason, a class proceeding must be structured around a claim that meets the normal tests for viable litigation. The court must also be satisfied that the proposed action is the most efficient and effective manner of pursuing a remedy.

21Although supplemented by other subsections of the Act and by the 2020 amendments, the basic mandate of the court on a certification motion remains that set out in s. 5 (1) of the Act. The Act directs the court to certify a class proceeding if the moving party satisfies the following:

(a) the pleadings or the notice of application discloses a cause of action;

(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;

(c) the claims or defences of the class members raise common issues;

(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and

(e) there is a representative plaintiff or defendant who,

(i) would fairly and adequately represent the interests of the class,

(ii) 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

(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

22Where the plaintiff seeks to certify a national class or a multi-jurisdictional class proceeding, the Act provides additional requirements. Pursuant to subsection 5.1, the court must also be satisfied that Ontario is the appropriate venue for the proceeding and must take into consideration if other class proceedings have been commenced in other jurisdictions. There is also a list of factors to be considered in subsection (7). Even if certification is granted, the court has broad discretion to fashion an appropriate order.

23As described by the Supreme Court of Canada in Hollick⁵ and as discussed at length in various decisions of this court cited by the parties, the criteria for certification may be divided into two parts. Subsection (a) requires only an analysis of the pleadings to determine that it is not "plain and obvious" that the plaintiff's action cannot succeed and is certain to fail.

24That analysis is a pleadings analysis in which evidence of the merits is not considered. It is identical to the analysis under Rule 21.01 (b)⁶ which asks the court to consider, assuming the facts as pleaded are true, whether it is plain and obvious that the action cannot succeed. To phrase this more succinctly, the first subsection asks, whether the action could succeed if the facts pleaded are proven? This is a low bar. The court must read the claim generously and must assume that, unless the pleadings are ridiculous or incapable of proof, the facts set out in the pleading are true.

25If the plaintiff has put forward a theoretically viable action, the focus in determining whether a class action is appropriate is on the form of the action and not on the merits. That is to say that there is no shadow summary judgment motion or merits based screening. The plaintiff cannot be called upon to prove that it can or will win the case on the merits in order to obtain certification as a class proceeding. It can be called upon to show that there is evidence that a class exists which has suffered injury and that the proposed action meets the other criteria.

26Unlike subsection a), those other parts of the statutory test do require an evidentiary basis. The class representative must show "some basis in fact" for each of the certification requirements other than subsection (a).⁷ Although this is a screening mechanism and the moving party must satisfy all five criteria, it need not do so on a "balance of probabilities" but only on this lower standard having regard to the preliminary stage of the action. The standard is not onerous but it is not nothing.⁸ There must be an evidentiary basis for concluding that each of the criteria are met.

27In addition to the s. 5 factors, subsection (1.1) was added to the Act in 2020 to provide guidance in respect of the analysis under subsection (5) (1) (d). Subsection (1.1) (a) provides that a class proceeding is the preferable procedure only if the proposed proceeding "is superior to all reasonably available means of determining the entitlement of the class members to relief or addressing the impugned conduct of the defendant" including "a quasi-judicial or administrative proceeding, the case management of individual claims in a civil proceeding, or any remedial scheme or program outside of a proceeding."

28Further, even if there are common questions of fact or law in common to class members, the subsection provides that the court must be satisfied that those common issues predominate over any questions only affecting individual members of the class. These are not dramatic changes from the criteria addressed in jurisprudence, but they are a clear indication that the legislature does not intend certification to be automatic, particularly if the members of the class have other avenues available to them.

Analysis

29In this case, there is no significant challenge under s. 5 (1) (a). While there may be quibbles with the form of the pleading, it sets out viable causes of action both at common law and under the statutory remedies. Furthermore, if there was an illicit price fixing arrangement, and the choice is between individual or collective action, s. 5 (1) (d) is easily satisfied. The individual damages, at least for consumers, would be so tiny that a collective proceeding would be the only viable proceeding and an individual action would be an impossibility. As I will discuss, however, although there is currently no regulatory proceeding in Canada and no enforcement proceedings launched under the Competition Act, it is relevant that there are investigations by numerous regulators (albeit to date none of them have found any behaviour requiring remedial action).

30The first problem is the application of the "some basis in fact" test. Bear in mind that the test is not initially whether there are facts that demonstrate the merits of the claim. As discussed in the section above and in Hollick, the legislation does not impose an evidentiary based merits screen. The plaintiff need not prove that it will win the case or that its allegations are accurate.

31The merits are indirectly engaged, however, because the factors listed in subsections b) – e) require some basis in fact. If the plaintiff cannot show that any wrong took place or any damage was suffered and by whom, it is impossible to conduct the analysis demanded by the statute.⁹

32An individual action may be launched based on a pleading that discloses a theoretical cause of action but for which the plaintiff has no evidence. In that situation, the plaintiff may hope that the evidence will be uncovered through the process of documentary production and discovery. That may not be wise (given our costs regime) but it is permissible.

33It is otherwise with a class proceeding. Before subjecting a defendant to the onerous requirements of responding to collective action on behalf of millions of potential class members, the court must be satisfied that the criteria for certification are met. This requires that the action has at least an air of reality. At a minimum, the court must be satisfied that there are identifiable class members who suffered damage, that they have issues in common, and the representative plaintiff can fairly represent the class in relation to those issues. The court must be satisfied that there is a concrete litigation plan which charts a reasonable path to a just solution. A class proceeding should not be an unfounded right to conduct an investigation into the affairs of an industry based only on the possibility that wrongdoing took place and the further possibility that the wrongdoing may have resulted in measurable damages.

34In the case at bar, I have evidence from an expert as to how damages could hypothetically be calculated assuming that liability can be established and assuming that higher prices were inflicted at various points in the manufacturing and supply chain. Dr. Lamb also gives evidence about how price fixing might work and states that the market has features that could give rise to an effective price fixing conspiracy. He is clear, however, that at this stage he cannot determine whether any overcharge actually occurred. Since I do not find the expert evidence compelling on the question of certification, I need not deal with the motion to strike portions of that testimony.¹⁰

35In fact, there is no evidence at all in relation to liability other than hearsay evidence of unsubstantiated concerns. It cannot be that the mere fact of investigations is evidence of wrongdoing. The plaintiff asserts that one defendant has agreed to settle a U.S. class action and to cooperate with the U.S. plaintiffs but the particulars of that settlement and whether it is with or without admission of liability is not in evidence. No witness was provided who was privy to any wrongdoing. Evidence of unsubstantiated suspicion of wrongdoing by foreign regulators is hardly a basis in fact for allegations that statutory breaches or tortious activity exist such as to found liability in Canada.¹¹

36In reality, there is nothing in the evidence to prove why those investigations were launched. Were they a response to a complaint? Did the regulators have evidence that made them suspicious? Were investigations simply triggered by market dominance and market concentration? The announcements by the regulators do not disclose evidence that has been uncovered. No witness was presented to prove the conspiracy. As discussed above, the expert evidence only states how damages might hypothetically be calculated.

37The European press release, like all of those provided in evidence, was extremely cautious. It describes unannounced inspections (searches of defendants' offices) which concern "possible collusion" and the fact that the Commission "has concerns" that companies "may have violated … antitrust rules". It goes on to say that the inspections are a preliminary investigative step which "does not mean that the companies are guilty of anti-competitive behaviour nor does it prejudge the outcome of the investigation itself".

38In Pinon I held that hearsay evidence such as media reports or findings by regulators could be admissible to show that evidence probably existed and to satisfy the "some basis in fact" test.¹² In that case, however, the central fact of a bus crash was undisputed and liability for some injuries arising from that collision had been admitted. Here, the hearsay evidence from the regulators only establishes that they are looking into the possibility of a conspiracy, it does not establish that a conspiracy existed or that it had a measurable impact in Canada.

39I conclude that the evidence is insufficient to establish any basis in fact for the proposed litigation and therefore no basis in fact to establish classes of injured plaintiffs who share common issues.¹³

40Even if I am in error by imposing too high a standard for "some basis in fact" and have strayed into a merits analysis, I have significant difficulty with a proposed class lumping together direct, indirect and umbrella purchasers. I cannot see how members of the class could self identify and be able to determine on what basis they are class members. How is anyone to know if any of the products purchased by them contained fragrance ingredients made by any of the defendants? How are they to know whether they wish to participate in the action or be bound by the action. This was a basis for refusing certification in Sun-Rype.¹⁴

41An additional reason to refuse certification is the provisions of s. 5 (1.1) which include consideration as to whether or not the interests of class members may better be addressed by a remedial scheme or program outside of a civil class proceeding. As the evidence shows, this issue has attracted the attention of multiple regulators in multiple jurisdictions although not, as yet, in Canada. Regulators have broad investigatory powers and broad remedial powers. Given the minimal damage that could possibly be suffered by individual class members, the most significant benefit of a class proceeding would be to expose the cabal, to deprive the beneficiaries of the conspiracy of illicit profits and to discourage such behaviour in the future. All of this can equally be achieved through a regulatory process – assuming such a process is worth pursuing. As the decision of the UK authorities discloses, some regulators do not believe this to be the case.

42I conclude that the plaintiff has not shown that pursuing a class proceeding on behalf of a class that potentially includes everyone in Canada is an appropriate, manageable proceeding that satisfies the criteria for certification.

43The motion is dismissed.

Costs and Next Steps

44The parties had agreed there should be no costs of the certification motion. That is appropriate and I make no costs order.

45The plaintiff is at liberty to seek to proceed with the action on an individual basis and if orders are required, I may be spoken to in that regard.

Footnotes

1. 1Class Proceedings Act, 1992, S.O. 1992, c. 6, as amended.
2. 2Competition Act, R.S.C. 1985, c. C-34, as amended.
3. 3See Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295, at para. 2 for this definition.
4. 4For example, I recently summarized the test and the jurisprudence in Litvin et al v. Mackenzie Financial Corporation et al, 2025 ONSC 6138.
5. 5Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158.
6. 6Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
7. 7Hollick, at para. 25.
8. 8Pro‑Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477.
9. 9Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, 173 O.R. (3d) 682.
10. 10Hague v. Liberty Mutual Insurance Co., 2004 CanLII 95289 (Ont. S.C.).
11. 11Gifford v. Air Canada, 2025 ONSC 3335.
12. 12Pinon v. Ottawa (City), 2021 ONSC 488, aff’d 2021 ONSC 6172 (Div. Ct.).
13. 13Eaton v. Teva Canada Limited, 2026 FC 239.
14. 14Sun‑Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58, [2013] 3 S.C.R. 545.