Canada: Justice Perell Seeks To Tame Western Mount Vesuvius With First Principles

Last Updated: October 22 2015
Article by Angus T. McKinnon

For those who have been following the British Columbia Court of Appeal's ("BCCA") decisions in the ongoing Wakelam1 vs. Watson2 debate, they may understand why one frustrated Ontario counsel recently summed it up as – "a wild west show." Now Justice Perell has weighed in on the debate referring to it as a "Vesuvius-like explosion of case law".3

For those who have not been following the debate some background is in order. Since 2012, the BCCA has ruled on the ability to certify restitutionary and statutory based claims in the areas of product liability, misleading advertising, and price fixing as follows:

  1. Koubi v. Mazda Canada4 - the BCCA found that the British Columbia Business Practices and Consumer Protection Act ("BPCPA") provides a complete code that regulates consumer transactions in that Province and that a breach of its provisions did not give rise to a restitutionary claim. It also found restitutionary claims to be inconsistent with the intent of the Sale of Goods Act;
  2. Wakelam v. Wyeth Consumer Healthcare - the BCCA again found that the BPCPA provides a complete code and there was no indication of a legislative intent to create additional restitutionary causes of action. The court then went further, applying the same reasoning to the plaintiffs' claim under the Competition Act's misleading advertising provisions; and
  3. Watson v. Bank of America Corporation – the BCCA found that Wakelam did not determine the issue of whether a breach of the Competition Act would support an unlawful means conspiracy claim and consequential restitutionary claims, but it does bar pure restitutionary claims based solely on a breach of the Competition Act.

Faced with what appeared to many to be conflicting decisions of the BCCA and the recent Supreme Court of Canada ("SCC") decisions in the Competition Act trilogy5, Justice Perell chose to approach the matter "as a matter of first principles". The case before him was the lithium ion rechargeable batteries price fixing case. The plaintiffs' proposed class action alleged a breach of Section 45 of the Competition Act, and claimed damages pursuant to Section 36, and for conspiracy, interference with economic relations and unjust enrichment. In light of the SCC's 2014 decision in Bram6, the plaintiffs did not pursue their interference with economic relations claim. Justice Perell ultimately certified the action based solely on a breach of Section 45 of the Competition Act and the claim for consequential damages under Section 36. He refused to certify the balance of the claims. Here is how he got there.

Justice Perell began with another SCC case, this time from 1925. In Orpen v. Roberts,7 the SCC concluded that the breach of a municipal by-law did not give rise to a common law cause of action. From this and subsequent authorities he drew the principle that when Parliament introduces a comprehensive statutory scheme containing a statutory cause of action, it intends to preclude tort-based claims based upon a breach of that statute. Justice Perell reviewed the legislative history of the Competition Act. He concluded that in its 1975 amendments Parliament had signalled its intention that the scheme was to be comprehensive and was intended to "preclude a redundant and inefficient common law cause of action for conspiracy".8

Next, Justice Perell turned his attention to the case law that has recognized a common law unlawful means conspiracy, including Watson. He expressed the view that Wakelam had been properly decided and Watson had not, finding that the error in Watson was to frame the question as whether Parliament had intended to provide a "new and superior"9 method of remedying a breach of the statute. The correct question, according to Justice Perell, was whether Parliament had intended to preclude unlawful means conspiracy claims based on a breach of the Competition Act. He noted:

Given the policy pulls of competition law, Parliament was not constrained to only introduce pro-plaintiff amendments to the Competition Act, and, in my opinion, Parliament intended to introduce a statutory cause of action that had a briefer limitation period and that did not admit of punitive damages but did offer plaintiffs a more efficient claim against price fixers.10

Not only did Justice Perell conclude that the statutory cause of action in Section 36 of the Competition Act precluded an unlawful means conspiracy claim, he found that it also precluded unjust enrichment claims based on a breach of the Act. He went on to state that he would have also rejected the unjust enrichment claim on the basis that it would not satisfy the preferable procedure criterion because it would "unnecessarily complicate the class proceeding and likely make it unmanageable".11 He based this conclusion on his finding that the calculation of damages for an unjust enrichment claim would take "the action into largely unexplored legal territory about the calculation of a disgorgement remedy" in circumstances in which "the prospect of an aggregate assessment of damages is feasible making disgorgement redundant".12

This then left the statutory cause of action and the plaintiffs' predominant purpose conspiracy claim. Justice Perell rejected the defendants' submissions that there were no meaningful common issues resulting in their being a lack of commonality in the proof of loss, and elected to certify the statutory cause of action. However, when it came to the plaintiffs' predominant purpose conspiracy, Justice Perell came to a different result. Acknowledging that it was not plain and obvious that the plaintiffs could not succeed with their allegations that the defendants' primary intent had been to injure purchasers of battery products, he found:

It does seem to me that it is plain and obvious that the plaintiffs' chance of success for a predominant purpose conspiracy based on purely lawful conduct in the pricing of LIBs is very remote. If the plaintiffs succeed on the statutory cause of action, the predominate purpose conspiracy is redundant and if the plaintiffs fail on the statutory cause of action, it is unlikely the plaintiffs will snatch victory from the jaws of defeat.13

While Justice Perell may have found his own answer to the Wakelam vs. Watson debate, it remains unclear what an Ontario appellate court will do and whether Justice Perell's approach correctly observed principles of stare decisis given the recent Supreme Court trilogy and the finding in Pro-Sys that "it is not plain and obvious that there is no cause of action in unlawful means conspiracy or in intentional interference with economic interests."14


1. Wakelam v. Wyeth Consumer Healthcare, 2014 BCCA, 36 ("Wakelam")

2. Watson v. Bank of America Corporation, 2015 BCCA, 362 ("Watson")

3. Shah v LG Chem, 2015 ONSC 6148("Shah")

4. Koubi v. Mazda Canada, 2012 BCCA 310

5. Pro-Sys Consultants Ltd. v. Microsoft, 2013 SCC 57 ("Pro-Sys"); Sun-Rype Products Ltd. v. Archer Daniels Midland, 2013 SCC 58 and Infineon Technologies AG v. Option Consommateurs, 2013 SCC 59

6. A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12 ("Bram")

7. Orpen v. Roberts [1925], SCR 364

8. Shah, supra, para. 212

9. Watson, supra, para. 55

10. Shah, supra, para. 227

11. Shah, supra, para. 234

12. Ibid

13. Ibid

14. Pro-Sys, supra, para. 83

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Angus T. McKinnon
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.