Canada: Indirect Purchaser Decisions Now Ripe For Release

Last Updated: October 30 2013
Article by W. Michael G. Osborne

The Supreme Court of Canada has announced that it will release its long-awaited decisions in three cases that raise the issue of whether indirect purchasers can sue for damages on Thursday, October 31. The three cases are: Sun-Rype Products Ltd. v. Archer Daniels Midland Company; Pro-Sys Consultants Ltd. v. Microsoft Corporation; and Options Consommateurs v. Infineon Technologies AG.

Indirect purchasers of a product that was the subject of a price fixing conspiracy cannot sue to recover losses passed on to them by direct purchasers, the British Columbia Court of Appeal ruled in Sun-Rype and Microsoft. The Quebec Court of Appeal came to the opposite conclusion in Infineon. All three cases were heard by the Supreme Court together last fall.

Sun-Rype and Microsoft

The Sun-Rype and Microsoft cases were both proposed class actions to recover damages on behalf of direct and indirect purchasers for an alleged overcharge caused by price fixing conspiracies.

In Sun-Rype, juice company Sun-Rype Products Ltd. and an individual sued a group of producers of high-fructose corn syrup (HFCS), alleging that a price fixing conspiracy among the producers raised the price of HFCS. The proposed class consisted of both direct purchasers, represented by Sun-Rype, and indirect purchasers, represented by the individual plaintiff.

On the certification motion, the defendants objected that indirect purchasers have no cause of action because Canadian law does not recognize the passing-on defence. The motion judge rejected this contention. He distinguished between using passing-on as a defence, which is not allowed, and passing-on as a factual occurrence (giving rise to a loss). He also reasoned that because the proposed class included both direct and indirect purchasers, all of those who potentially suffered a loss were included in the class, and the question was liability to the class as a whole. The motion judge certified the case, and the defendants appealed.

In Microsoft, the plaintiff sought to certify a class of indirect purchasers to sue Microsoft for various kinds of anticompetitive behaviour. The claim originally was based primarily on alleged abuse of dominance by Microsoft. After losing a motion in 2006, the plaintiffs then restructured their pleading to base it on conspiracy contrary to section 45 of the Competition Act. Microsoft argued, among other things, that the claim continued to be primarily about abuse of dominance and that, as indirect purchasers, the plaintiffs could not found a claim based on passing-on of the losses to them. The motion judge certified the case, and Microsoft appealed.

The majority's reasoning proceeded in two steps. First, it follows from the Supreme Court's rejection of passing-on as a defence in Canfor and Kingstreet that the direct purchasers are entitled in law to recover the whole amount of the overcharge.

Second, if the direct purchasers are entitled to recover the whole overcharge without deduction on account of passing on, it follows that there is nothing left for the indirect purchasers to recover. The law refuses to recognize passing-on to reduce the amount recoverable by direct purchasers; equally it must refuse to recognize passing-on to grant recovery to indirect purchasers.

If this were not the case, the majority reasoned, the defendants would have to pay twice: they would have to pay the direct purchasers the whole of the overcharge, and then they would have to pay the indirect purchasers for whatever was passed on to them. The law does not sanction such double recovery.

In his dissenting reasons, Donald J.A. adopted the motion judge's distinction between passing-on as a defence and passing-on as a factual occurrence. He accepted that "the rule against double recovery is a bedrock principle".  Double recovery is avoided by including direct and indirect purchasers in one class, so that damages are assessed once, for all purchasers, thus avoiding double recovery. He contended that "the double recovery rule should not in the abstract bar a claim in real life cases where double recovery can be avoided".

Infineon

In November 2011, the Quebec Court of Appeal certified a class action against makers of DRAM memory chips on behalf of all Quebecers who bought DRAM chips of products containing DRAM chips between April 1999 and June 2002. The plaintiff class likely consists mainly of indirect purchasers.

The Court of Appeal's discussion largely follows, and adds little to, Donald JA's dissenting reasons in Sun-Rype. The court did suggest that if the direct purchasers were to capture the whole of the overcharge in opt-out litigation against the price-fixers, the indirect purchasers would have an action in unjust enrichment against the direct purchasers. However, it is unlikely that this putative unjust enrichment action would satisfy the required elements for an unjust enrichment action. In particular, indirect purchasers would not have a deprivation corresponding to the recovery by the direct purchasers. Their losses would have occurred at the time the overcharge was passed on by the direct purchasers, and not as a result of the later recovery of the overcharge. As well, this passing-on by the direct purchasers is neither unlawful nor actionable. Moreover, it would be impossible to show an absence of a juristic reason for recovery by the direct purchasers pursuant to a judgment of the court.

For a complete analysis of the indirect purchaser issue, see The Loss Stops Here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
W. Michael G. Osborne
Similar Articles
Relevancy Powered by MondaqAI
Gowling WLG
Affleck Greene McMurtry LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Gowling WLG
Affleck Greene McMurtry LLP
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions