Canada: The Certification of Competition-Related Class Actions in Canada

By John B. Laskin, Linda M. Plumpton, and Amanda M. Kemshaw*

Reproduced with permission from the Canadian Class Action Review (2006), Vol. 3, No. 1, published by Irwin Law, pp. 216-244.

A. Introduction

Although the first class action legislation was enacted in Canada more than twenty-five years ago¹ and class proceedings are now a national phenomenon, Canadian courts still have not stated clearly the manner in which certification principles will be applied to class proceedings alleging antitrust violations. As the Court of Appeal for Ontario has stated, "the question of whether and how consumers will be able to use class actions to obtain relief from price fixing ... remains an open one in this jurisdiction."²

The primary reason for the continuing uncertainty appears to be the limited opportunity the courts have had to develop this area of the law. To date, certification has been contested in only one intended Canadian class proceeding alleging an antitrust conspiracy³ and in one action based on allegations of price maintenance.⁴ In both cases certification was refused.

Several antitrust class actions have been certified for settlement purposes in recent years, but the decisions in these cases do little to illuminate the courts’ approach in cases where defendants resist certification. While the judicial approach to certification of class proceedings generally continues to evolve, until the courts have had a further opportunity to explore the unique issues that arise when certification of an antitrust conspiracy class action is sought, it will remain unclear whether and under what circumstances claims arising out of alleged antitrust violations will be certified.

In this article we examine the Canadian experience with antitrust class proceedings to date and highlight some of the areas requiring additional judicial guidance. We explore the following issues:

1. the private right of action under section 36 of the Competition Act,⁵ including the elements that must be proven to establish this cause of action, the evidentiary problems that frequently arise and the American "solutions" to these problems;
2. the developing Canadian approach to the unique challenges presented by antitrust class proceedings, analyzed through the framework of the certification criteria; and
3. the different standards that are applied and issues that arise when antitrust class actions are certified for settlement purposes.

Section 36(1) of the Competition Act confers a private right of action on victims of anti-competitive conduct. Under this section, any person who has suffered loss or damage as a result of the commission of one of the criminal offences in Part VI of the statute (or a failure to comply with an order of a court or the Competition Tribunal) may sue for and recover the actual loss suffered and the costs of investigating the misconduct and bringing the action.

Section 36 does not authorize claims for punitive damages or injunctive relief.⁶As a result, claims under this section frequently are combined with tort claims such as civil conspiracy and unlawful interference with economic interests that do allow for these and other remedies.

Conspiracy contrary to section 45(1) of the Competition Act is an offence under Part VI. This section makes it a criminal offence to conspire, combine, agree, or arrange with another to restrain or injure competition unduly. The provision is intended to prevent and punish cartel-like activity that confers market power on the members of the conspiracy, enabling them to fix prices, limit supplies, divide markets, or engage in other anti-competitive practices.⁷

The purpose of the Competition Act is "to maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy ... and in order to provide consumers with competitive prices and product choices."⁸ The private right of action under section 36 is designed to further this purpose by deterring antitrust violations and providing compensation for victims.⁹ Class proceedings seem naturally complementary to section 36: they are also intended both to compensate victims and to modify behaviour.¹⁰ But although several competition class actions have been commenced,¹¹ it is not clear that class actions will be an effective tool for the enforcement of competition legislation.

The problems presented by claims under section 36 arise from the requirements of the section itself. To maintain a private action under section 36, a plaintiff must establish (1) an offence under the statute, and (2) loss or damage suffered as a result. Difficulties can arise under both of these elements.¹²

One factor frustrating the growth of antitrust class proceedings may be the difficulties involved in establishing the commission of an offence where there has been no prior criminal conviction. In these circumstances, the plaintiff’s burden of proof in a section 36 proceeding is higher than the civil standard of balance of probabilities, although somewhat lower than the criminal burden of beyond a reasonable doubt. The plaintiff must "offer substantial proof." The court has stated:

Section 36(2) of the Competition Act makes it easier for a plaintiff to succeed where there has been a prior criminal conviction. It creates a rebuttable presumption in civil litigation that an offence was committed:

Not surprisingly, the majority of antitrust class actions commenced to date have followed criminal convictions, typically based on guilty pleas.

Given the advantage conferred on plaintiffs by section 36(2), efforts to contest liability by a defendant convicted of an offence under Part VI are unlikely to succeed. Arguably, however, in the case of a conviction following a plea, the more limited evidentiary record may allow the presumption to be rebutted if the defendant adduces "any" evidence to the contrary.¹⁴

In both of the competition-related class proceedings that have proceeded to contested certification motions, there had been no prior criminal conviction.¹⁵ In both, certification was refused. This reflects a pattern that is also apparent from a review of the antitrust class actions that recently have been certified for settlement purposes. Where there has been a prior conviction, class proceedings are more readily brought but are typically settled. Where there has not been a prior conviction in Canada, problems of proof seem to be deterring plaintiffs from commencing claims.

In order to succeed in a private action under the Competition Act, the plaintiff must also demonstrate actual loss suffered as a result of the defendant’s conduct. This element of section 36 poses a significant challenge for proposed antitrust class proceedings, in part because it must be met for each member of the class.

In proceedings under section 36, establishing that a loss was suffered and who it was suffered by can give rise to difficult issues of proof. Consumers, for example, may face significant hurdles in sustaining an action to recover a loss suffered as a result of an unlawful overcharge. Products may be distributed to consumers through different distribution channels, and many variables may influence the prices at which retailers sell products to consumers. In these circumstances, establishing the consequences of anti-competitive conduct, and particularly that an individual consumer paid an excessive price for a certain product, can be an extremely complicated undertaking.¹⁶

The case law on conspiracy class actions, particularly those brought by classes made up in whole or in part of indirect purchasers, further highlights these evidentiary challenges. The plaintiff in a conspiracy class action typically alleges that the conspiracy resulted in higher, non-competitive prices. Where a claim is brought on behalf of indirect purchasers under section 36 of the Competition Act, the plaintiffs must establish on a balance of probabilities that they paid an overcharge resulting from the artificial price increase — that is, that the overcharge was not absorbed by direct purchasers, but passed on to them.¹⁷ A plaintiff who is an indirect purchaser therefore must: (1) trace the product through the distribution chain to establish that it purchased the product, a complex matter where the product was altered or used as an ingredient in another product at some point in the chain; (2) prove that the overcharge was passed on at every stage of the distribution chain; and (3) demonstrate that the loss resulting from the overcharge affected its stage of the distribution chain. To the extent that the price increase is absorbed along the distribution chain, the loss suffered by each subsequent indirect purchaser will be reduced accordingly, or even eliminated.¹⁸

In the United States, the Supreme Court has created rules intended to address these evidentiary difficulties. The combined effects of these rules are both to preclude indirect purchaser class actions and to concentrate the benefits of private actions in the hands of direct purchasers.

The first rule — that a direct purchaser may recover damages even if it passes on some or all of the overcharge — was established in Hanover Shoe, Inc. v. United Shoe Machinery Corp.,¹⁹ a treble-damages action under section 4 of the Clayton Act.²⁰ In this case, Hanover Shoe asserted that a shoe machinery manufacturer had engaged in monopolistic behaviour by refusing to sell it certain machines. Hanover Shoe sought in damages the difference between the amount it had paid in machine rentals and the amount it would have paid had it been able to purchase the machines. The defendant argued in response that any loss suffered by Hanover Shoe had simply been passed on to its customers and that the company therefore had suffered "no legally cognizable injury."²¹

The United States Supreme Court rejected this use of the "passing on" defence and held that a direct purchaser may recover damages even if it passes on some or all of the overcharge to customers in the form of higher prices. The court noted that the evidentiary hurdles associated with establishing that there was no injury to the direct purchaser as a result of the impugned activity would be insurmountable, and would complicate, lengthen, and generally overburden the litigation. The court further held that the passing on defence would reduce the effectiveness of private antitrust enforcement, since it would create a disincentive for direct purchasers to sue. The end result would be an increased risk that antitrust violators would retain the "fruits of their illegality."²²

Nearly a decade later, the United States Supreme Court created a second rule that addressed one of the problems created by the Hanover Shoe doctrine — the risk of overlapping recovery by direct and indirect purchasers. In Illinois Brick Co. v. Illinois,²³ a variety of government agencies asserted claims against concrete block manufacturers to recover damages arising from a price-fixing conspiracy. The plaintiffs all owned buildings containing the blocks, and were therefore indirect purchasers at the final stage of a lengthy distribution chain. They relied on the argument that the overcharge had been passed on at each stage of the chain. However, the United States Supreme Court expressed concern at the prospect of overlapping or duplicative recovery by direct and indirect purchasers. It confirmed its earlier conclusion that tracing an overcharge through each level in a chain of distribution and then apportioning it among claimants would require enormously complex evidence.²⁴ It concluded that limiting standing to direct purchasers would advance the objective of deterrence, since this class of purchasers had the greatest incentive to sue, and, in light of Hanover Shoe, the greatest chance of recovery.²⁵ The court therefore precluded class action claims by indirect purchasers for damages from a conspiracy to fix prices.

Illinois Brick has been the target of substantial criticism. In response to the decision, a number of states enacted "repealer" statutes intended to grant standing to sue to indirect purchasers. However, this legislative response gives rise to its own problems, since defendants continue to be barred from asserting a passing-on defence. Inevitably this creates risks of double recovery and is an unsatisfactory solution to the indirect purchaser problem.

In Canada, the courts have so far chosen not to adopt the rigid doctrines established in Hanover Shoe and Illinois Brick to respond to the unique challenges posed by antitrust class proceedings. From the few cases decided, however, it is clear that our courts must grapple with the same issues. For example, although the courts have declined to use the Illinois Brick doctrine to preclude class actions by indirect purchasers, no claim of this kind has to date survived a contested certification motion. Indirect purchaser actions may yet prove viable, as we discuss below, but it remains to be seen whether plaintiffs will be able to marshal the evidence necessary to prove damage on a class-wide basis.

Thus far, Canadian courts have also declined to import the principles from Hanover Shoe that bar defendants from arguing that any overcharge paid by direct purchaser plaintiffs was passed on to purchasers further down the distribution chain. It appears that direct purchasers who claim to have suffered a loss as a result of anti-competitive conduct must still prove actual damage. However, two recent appellate court decisions in non-competition law cases raise questions about the future of the passing on defence in the competition law context.

The Court of Appeal for Ontario discussed the passing on defence in a case involving claims of negligent misrepresentation and breach of contract by a provincial law society against its auditor and actuary.²⁶ The defendants sought to strike out a claim against them on the basis that any damages suffered by the plaintiff law society had been passed on to its members through increased premiums and levies. The motions judge ruled that the passing on defence had been recognized in Canadian law only in the limited context of a taxpayer claim for recovery of taxes paid under ultra vires legislation. He effectively determined that the passing on defence was not otherwise available in Canada and dismissed the motions. On appeal, the Court of Appeal ruled that "it is not plain and obvious, as a matter of law, that the passing on defence does not constitute a reasonable defence."²⁷ It therefore let the pleading of the passing on defence stand.

A more recent decision of the Supreme Court of Canada, British Columbia v. Canadian Forest Products Ltd., suggests that it is inclined to take a more definitive view against the availability of the passing on defence.²⁸ The case involved a claim by the province of British Columbia for, among other things, loss of revenue from harvestable trees as a result of a forest fire that was largely caused by a forest company. The forest company argued that the province had suffered no loss because the operation of the provincial pricing system for harvested trees had resulted in increases in amounts paid for other trees, leaving the province with the same overall amount of revenue. The province submitted in response that the company should not be entitled to assert that the loss was passed on to other licensees of harvestable land through the pricing system.

The majority, six of the nine judges, was sceptical of the passing on defence. It stated:

However, the majority ultimately determined that since the province had suffered no lost revenue, the passing on defence was irrelevant and did not need to be analyzed further.

The dissenting judges, who would have found that the province had suffered a loss, were more trenchant in their criticism of the defence. They echoed the concerns expressed by courts in the United States that led the Supreme Court to adopt the Hanover Shoe doctrine.³⁰ They expressed the view that the defence

When the views of both the majority and the dissent are taken into account, there seems to be little prospect that the Supreme Court of Canada would give effect to the passing on defence in a common law tort claim. The only serious remaining question is whether the defence would be recognized in a statutory claim founded on section 36 of the Competition Act.

As discussed above, it is prerequisite to recovery under section 36 that a plaintiff have "suffered loss or damage," and recovery is limited to "an amount equal to the loss or damage proved to have been suffered by him." It could be argued that these statutory requirements to prove damage preclude recovery where no net damage has actually been suffered because any loss has been passed on. It seems likely, however, that the Supreme Court of Canada would conclude that these requirements can also be met by proving "loss in the proximate sense." To treat the statutory cause of action as requiring a higher level of proof of damage than a tort cause of action for the same anti-competitive conduct would be ironic, since Parliament’s aim in enacting section 36 was to facilitate, rather than create barriers to, civil claims. To adopt a higher level of proof would likely be futile in any event: plaintiffs would simply recast their claims as common law claims, foregoing reliance on section 36. Accordingly, defendants to antitrust class proceedings will now likely encounter serious difficulty in using the passing on defence as a basis for resisting certification of a direct purchaser class action or a judgment at trial.

With so few cases yet decided, considerable uncertainty remains as to the approach Canadian courts will adopt toward competition class actions at the certification stage. Only one price-fixing case — Chadha v. Bayer Inc.³² — has addressed head-on the requirements for certification of a class of indirect purchasers. Chadha involved an alleged conspiracy to fix the price of iron oxide pigments used to colour concrete bricks and paving stones that were used in the construction of homes and buildings and in landscaping. The increase in iron oxide prices allegedly contributed to an increase in the price of these bricks and paving stones. The plaintiffs, homeowners who alleged that they had suffered damage as a result, brought an action under section 36 of the Competition Act.

The motions judge certified a class with the following description:

However, this decision to certify was reversed by the Divisional Court, and the reversal was upheld by the Court of Appeal for reasons that are discussed below.

In addition to Chadha, a price maintenance case, Price v. Panasonic Canada Inc.,³⁴ is also of assistance when considering the future likelihood of certification of a competition-related class action. Price involved allegations that over a period of almost twenty years the defendant sought to maintain resale prices of various audio-visual products, in breach of the former section 28 of the Combines Investigation Act³⁵ and of section 61 of the Competition Act. The motions judge denied certification, a decision which was not appealed. In what follows, we discuss the current state of competition class actions in Canada with particular reference to these two decisions, analyzed within the framework of the mandated elements of the certification inquiry.

The certification motion is a critical step in a class proceeding. It defines the class and establishes the framework for the class action as it proceeds.³⁶ In most cases, certification will lead to settlement, since very few certified class proceedings to date have proceeded to trial. On the other hand, failure to certify will typically lead to the abandonment of the action, since there is little incentive to pursue individual claims.

The test for certification is fairly consistent across Canadian class action legislation. It generally provides that the court shall certify an action as a class proceeding if:

1. the pleadings disclose a cause of action;
2. there is an identifiable class of two or more persons;
3. the claims of the class members raise common issues;
4. a class proceeding would be the preferable procedure for the resolution of the common issues; and
5. there is a representative plaintiff who

The question to be determined on the certification motion is not whether a proposed class proceeding is likely to succeed on its merits, but whether the claims asserted are properly advanced by way of class proceeding. To satisfy the certification criteria, the proposed class representative must show some basis in fact for each of the certification requirements, other than the requirement that the pleadings disclose a cause of action.³⁸ The defendant to a proposed class proceeding must then decide whether and what additional or responding evidence needs to be led.

Whether the pleadings disclose a cause of action is to be determined solely on the basis of the allegations in the pleadings.³⁹ The ultimate merits of the claim pleaded are not relevant.⁴⁰ The analytical principles are essentially the same as those applied in motions to strike out a claim for failure to disclose a reasonable cause of action. The threshold is fairly low and will be satisfied unless it is "plain and obvious" that the plaintiff cannot succeed.⁴¹

The proposed class in Chadha included only end-users and other indirect purchasers. The defendants attempted both in a pre-certification motion to strike and at the certification stage to rely on Illinois Brick as authority for the proposition that a claim asserted on behalf of a class of indirect purchasers disclosed no cause of action. This argument was rejected both at first instance and in the Divisional Court on the basis that this American authority was inapplicable in Canada.

In Price, in dealing with the first element of the certification test, the Superior Court ruled that the plaintiff had adduced "sufficient evidence to surpass the plain and obvious test as far as a cause of action being disclosed in the pleadings." However, the court went on to state that "even if the Plaintiffs succeed in establishing acts of price maintenance, this determination would only be the beginning of the liability inquiry."⁴² The court noted that under both the Competition Act and the Combines Investigation Act each proposed representative plaintiff would also have to individually prove loss caused by the conduct of the defendants in order to establish liability. This requirement was relevant, the court noted, both in assessing the complexity of the proceeding and in analyzing whether a class action was a viable and preferable procedure.

As the court observed in Price, there is an interrelationship between the first part of the test for certification and the other criteria. The nature of the claims advanced greatly affects the size of the class and the potential for complications that might render a class action inappropriate.⁴³

The second part of the certification inquiry requires an identifiable class of two or more persons. The class definition serves three purposes: (1) it identifies the potential individual claimants; (2) it defines the parameters of the litigation so as to identify those persons bound by the result; and (3) it prescribes who is entitled to notice.⁴⁴ Both the plaintiff and the defendant must file affidavit evidence of their best information on the number of members of the class.⁴⁵ The plaintiff has an obligation to show that the proposed class is not unnecessarily broad and that it could not be defined more narrowly without arbitrarily excluding some people.⁴⁶

Defining a class that is simply too large and unwieldy for the action to be fairly and efficiently tried as a class proceeding may result in a decision not to certify. A large proposed class, therefore, may provide the defendant with arguments against certification.⁴⁷ Issues that require individual determination, such as differences in causation between class members or differences in injuries and damages suffered, as well as differences in the applicable law, are magnified where the class is large.

The definition of the class must also be neutral with respect to the merits of the claim. The class proposed (and initially certified) in Chadha included end-users "who have suffered loss or damage" as a result of the defendants’ conduct. The defendants objected to this definition because, by including only individuals to whom the defendants might ultimately be liable, it turned on the merits of the case. The motions judge rejected the argument that problems of self-identification of potential class members rendered the class definition unacceptable because he did not consider under-inclusion to be a problem.⁴⁸ However, both the Divisional Court and the Court of Appeal found that the class definition was not objective and that it violated the statutory policy that the merits are not to be decided at the certification stage.⁴⁹

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