Canada: Court Of Appeal Holds That Statutory Limitation Periods Are Often Subject To Discoverability, Price Fixing Can Support A Civil Conspiracy Claim And A Finding Of A Genuine Issue For Trial Is Interlocutory
In a decision that deals with numerous significant legal issues,
the Ontario Court of Appeal kept the class action alive in Fanshawe College of Applied arts and Technology
v. AU Optronics Corporation. The class action alleges a
conspiracy to fix the price of liquid crystal displays (LCDs) and
components during the period 1998 - 2006. The appeal concerned two
principal motions: (1) the defendants' motion for summary
judgment on a limitations argument, and (2) the plaintiffs'
motion to amend the statement of claim. The motion judge dismissed
the summary judgment motion, finding discoverability presented a
genuine issue for trial. The motion to amend was also dismissed,
with the motion judge there finding the amendment expanded the
scope of the class action in a way that was statute-barred. The
Court therefore dismissed the appeal of the summary judgment
motion, and allowed the appeal of the motion for leave to amend the
statement of claim.
On the discoverability issue, the Court of Appeal made two key
holdings: (1) it did not have jurisdiction to consider the finding
of a genuine issue for trial, since it was an interlocutory
decision, and (2) the discoverability principle applies to the
limitation period in section 36(4)(a)(i) of the Competition Act (section 36 creates a
civil cause of action for breaches of Part VI of the Competition Act). On the latter
issue, the Court held that discoverability applies to any statutory
limitation where the lmiitation period is linked either to a
plaintiff's knowledge about an event or to an event related to
the plaintiff's cause of action.
Also of note, the Court of Appeal held that it is not plain and
obvious that a breach of section 45 of the Competition Act (price fixing) cannot
serve as the unlawful means for a civil conspiracy claim. The Court
held that Parliament did not intend to preclude a claim for civil
conspiracy related to price fixing, so it could support a civil
Finally, with respect to the leave to amend, the Court found
that the amendment did not expand the scope of the action by adding
an indirect purchaser representative plaintiff. The Court held that
the statement of claim always included such purchasers. While this
is a fact-specific holding, it continues a trend where the Court
has been very open to amendments to statements of claim in class
This decision is of particular importance in the competition
field, but also is also notable for confirming that discoverability
has broad application to statutory limitation periods and that a
finding of a genuine issue for trial on summary judgment is only
appealable with leave to the Divisional Court.
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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