The central issue in these appeals was whether indirect
purchasers may assert actions based on alleged anti-competitive
conduct and, if so, whether classes containing a mix of both direct
and indirect purchasers are permissible. Indirect purchasers are
those who have purchased the product not directly from the alleged
over-chargers, but from an intermediary at some point in the chain
Together, these three decisions permit, and set out the
framework for, indirect purchaser actions in Canada. They also
provide some important guidance on other elements of certification
including the evidentiary burden and the role of aggregate damages
provisions. My colleagues have prepared a detailed analysis of
these cases and their impact on Canadian class action law and on
consumer litigation more generally; their analysis can be found here.
The Commissioner of Competition commenced an application for an
abuse of dominance proceeding against Reliance with respect to
certain local markets for residential hot water heaters. To succeed
in an abuse of dominance proceeding, the Commissioner has to prove
three things: first, that Reliance "substantially or
completely controls, throughout Canada or any area thereof, a class
or species of business", second, that Reliance has engaged in
a practice of anti-competitive acts; and third, the practice has
had, is having, or is likely to have the effect of preventing or
lessening competition substantially in the market.
Reliance served the Commissioner with a demand for particulars
to which there was, in Reliance's view, an inadequate response.
Reliance sought an order striking the Commissioner's
application, which was denied. The Federal Court of Appeal
dismissed the appeal. Reliance appealed further, arguing that
a respondent facing a regulatory claim for a significant
administrative monetary penalty should be afforded protection under
s. 11 of the Charter and s. 2(e) of the Bill of Rights and claiming
that the Federal Court of Appeal had erred in not affording
Reliance such protection. Reliance also argued that the
Competition Bureau had unilaterally shifted the persuasive burden
relating to one element of the actus reus of a regulatory offence
and the Federal Court of Appeal had erred in law in upholding
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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).