On October 17, 2012, the Supreme Court of Canada heard argument
in three appeals relating to the certification (in Quebec, the
authorization) of class actions: Pro-Sys Consultants Ltd. v.
Microsoft Corporation, Infineon Technologies AG v. Option
Consommateurs, and Sun-Rype Products Ltd. v. Archer Daniels Midland
Company. More than a year later, on October 31, 2013, the Court
released its eagerly awaited decisions. While the appeals touched
on multiple issues, the core questions were whether indirect
purchasers (i.e. those parties, such as retailers and consumers,
who purchase the product in question subsequent to the initial
purchase from the alleged violator) can be claimants in class
actions, and the standard of proof to be applied at certification
hearings, particularly with respect to the commonality of issues
and preferable procedure requirements.
The Court has decided that, despite the complex evidentiary
problems involved, indirect purchaser class actions can proceed, as
long as the expert testimony supporting certification is
"sufficiently credible or plausible to establish some basis in
fact for the commonality requirement" of the class proceedings
legislation. The plaintiffs' expert's methodology
"must offer a reasonable prospect of establishing a loss on a
class wide basis." This is the opposite of the approach
adopted by the U.S. Supreme Court, which several decades ago ruled
that indirect purchaser claims could not be pursued, and to the
prevailing practice in the United States where certification
proceedings are often more rigorous than in Canada. As the
unanimous reasons of the Supreme Court of Canada put it:
"Resolving conflicts between the experts is an issue for the
trial judge and not one that should be engaged in at
One can therefore expect that the complex evidentiary issues
associated with indirect purchaser class actions will now be
thrashed out at trial, rather than at certification, and that, as a
result, there will likely be many complex and lengthy trial
proceedings in Canada.
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