Originally published in Blakes Bulletin on Competition,
Antitrust & Foreign Investment, June 2010
On June 3, 2010, the Supreme Court of Canada denied the
defendants' application for leave to appeal of the decision of
the B.C. Court of Appeal (BCCA) in the DRAM class action. In
November 2009, the BCCA overturned a lower court decision and
certified an alleged price-fixing case involving computer memory
chips for both direct and indirect purchasers. The Supreme Court of
Canada's denial of leave to appeal means the BCCA decision now
stands as the leading appellate authority on the certification of
antitrust class action cases in Canada, paving the way for the
certification of combined direct and indirect purchaser class
actions, especially in international conspiracy cases. Indeed,
Ontario and British Columbia courts – relying on the BCCA
decision – have recently certified direct and indirect
purchaser class actions.
The BCCA decision in DRAM:
establishes a relatively low threshold for showing a
methodology for establishing harm on a class-wide basis at the
certification stage, even in complex indirect purchaser cases;
suggests that both liability and damages may be determined at
the same time by relying on gains based or restitutionary remedies
and with proof of a criminal conviction (including one in the
departs from earlier decisions, most notably the Ontario Court
of Appeal decision in Chadha v. Bayer, which had denied
certification in similar circumstances;
gives broad scope for the application of the use of aggregate
damages to overcome difficulties in establishing harm on a
class-wide basis; and
gives greater recognition to waiver of tort as a possible cause
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