Consumer class actions have been on the increase in Canada in
recent years and that trend will likely continue in the wake of the
Supreme Court of Canada's decisions in the indirect purchaser
Supreme Court Releases the Indirect Purchaser
Trilogy]. The next trend may well be an increase in
the number of class actions defended through trial. Only a handful
of class action trials have proceeded in Canada to date; virtually
all actions which have passed the certification hurdle have been
settled by defendants.
The trilogy sets out the framework for indirect purchaser
actions in Canada. The SCC decided to allow indirect
purchaser actions, in addition to direct purchaser actions, against
alleged overchargers. As such, indirect purchaser actions may
now be certified as class actions.
The SCC also confirmed that the Court will not assess the merits
of a proposed class action at the certification stage and that in
common law provinces, the class representative must simply show
"some basis in fact" for each of the certification
requirements but need not adduce any evidence that the acts alleged
However, although indirect purchaser actions may now be more
easily certified, the trilogy does not ease the challenges that the
plaintiffs will face in proving their loss on the merits. The
Court held that the remoteness and complexities associated with
proving loss down the distribution chain are real and must be
assumed by indirect purchasers: "[t]he multitude of variables
in indirect purchaser actions may well present a significant
challenge at the merits stage."
There remain very significant evidentiary hurdles for indirect
purchaser classes post-certification such that there will be cases
certified that have little prospect of success at trial. It
is likely that more defendants will opt to defend through trial as
the chasm widens between certification and the plaintiffs'
ultimate ability to successfully prosecute their action.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
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.
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