Vincent Genova

The appellants appealed an order of the motion judge.

The respondent brought a motion to quash the appeal.

The Court of Appeal granted the motion to quash, finding that the same constitutional issue had already been decided in respect of a closely connected defendant in the same proceeding.

The court also noted that the trial was imminent, several plaintiffs were critically ill, and the defendants had engaged in a proliferation of proceedings resulting in unacceptable delay.

The plaintiffs sought to certify a class action on behalf of indirect purchasers (homeowners and end users) alleging that the defendants engaged in a price-fixing conspiracy regarding iron oxide pigment used in construction materials.

The application judge certified the action.

The defendants appealed.

The Divisional Court allowed the appeal and set aside the certification order, finding that a class proceeding was not the preferable procedure.

The court held that the plaintiffs faced insurmountable problems of proof regarding whether the alleged overcharge was passed on to them through the chain of distribution, making the action unmanageable and inappropriate for aggregate damages assessment.

The defendants brought a motion for a stay of the class action proceedings pending their appeal of the certification order.

The court applied the RJR-MacDonald test and found that there was a serious issue to be tried, the defendants would suffer irreparable harm from unrecoverable expenses and reputational damage, and the balance of convenience favoured the defendants.

The action was stayed pending the appeal to the Divisional Court.