The British Columbia Supreme Court certified a class action for
a class of indirect purchasers of diamonds in a recent development
in the suit against the De Beers group of diamond producers. The
case involves allegations of price-fixing and bid-rigging
conspiracies, in what has been characterized as historic and global
The class plaintiff alleged that the defendants conspired to and
benefited from illegally inflating the prices of diamonds, and that
the inflated price was passed on through the various levels of
purchasers, which ultimately caused class members to pay more for
the diamonds than they otherwise would have. In considering the key
issue of whether the class plaintiff had properly framed claims
against De Beers, the Court contemplated the apparent
inconsistencies between recent cases from the B.C. Court of Appeal
and the Supreme Court of Canada dealing with torts of unlawful
means and unlawful means conspiracy, with "unlawful
means" predicated on breaches of the Competition
On the one hand, in Wakelam v. Wyeth Consumer
Healthcare, the B.C. Court of Appeal held that the Competition
Act is an exhaustive code such that breaches of the statute cannot
form the basis for claims in equity.2. The Court of
Appeal also suggested that such breaches would be incapable of
supporting claims based in tort. The B.C. Supreme Court followed
the Wakelam decision in Watson v. Bank of America
Corporation, holding that it was plain and obvious that claims
under the Competition Act cannot constitute the foundation for
other causes of action.3.Watson is presently
On the other hand, the decisions in Wakelam and
Watson seemed to be in conflict with the Supreme Court of
Canada's decisions in Pro-Sys Consultation Ltd. v.
Microsoft Corporation4. and A.I. Enterprises v.
Bram.5. In Microsoft, the Supreme Court of
Canada certified claims for restitution even though, like
Fairhurst, these claims were predicated on breaches of the
Competition Act. In Bram, the Supreme Court of
Canada considered the type of wrong that could find a claim for
tort of unlawful means, noting that while criminal offences and
statutory breach would not typically be actionable under unlawful
means tort, the tort would be available "if, under common law
principles, those acts also give rise to a civil action by the
third party and interfered with the plaintiff's economic
activities".6.Bram was released only one
day after Wakelam.
The Court considered that in light of the apparent
inconsistencies between these decisions, it was bound by the higher
authority of the Supreme Court of Canada. As such, the Court held
that while claims for restitution, to the extent that they are
based on breaches of the Competition Act, were not viable,
it was not plain and obvious that other tort claims based on these
breaches were bound to fail. The Court further found that
limitations arguments advanced by De Beers were premature, and a
lack of specificity in the pleadings would not be fatal at the
certification stage. Such questions were best left to trial.
On the question of whether the claims of the class members raise
common issues, the test as set out in Microsoft required
the plaintiff to show that the standard of proof has "some
basis in fact." The Court here held that factual evidence
required at this stage need only go towards establishing whether
there are common questions between all class members. The standard
of proof is a lower threshold than the balance of probability. The
plaintiff need only show a "credible or plausible
methodology", and the Court at this stage is not required to
engage in a weighing of conflicting expert evidence.
The debate over whether class action claims using the
Competition Act as the foundation for other causes of
action remains at issue in British Columbia. The Fairhurst
decision has been appealed, but likely the legal issue will be
determined before that appeal is heard, as the British Columbia
Court of Appeal is expected to render its decision on the appeal in
Watson in 2015 where this issue will be addressed head on.
Whether another trip to the Supreme Court of Canada on this issue
will be required to sort out the law in British Columbia remains to
1. Fairhurst v De Beers Canada Inc, 2012 BCCA
2. 2014 BCCA 36 at para 90
3. 2014 BCSC 532 [Watson].
4. 2013 SCC 57 [Microsoft].
5. 2014 SCC 12 [Bram]
6. Bram at para 45.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
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.
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).