Originally published in Blakes Bulletin on Competition,
Antitrust & Foreign Investment, October 2009
On September 28, the Ontario Superior Court of Justice released
an important decision certifying a class proceeding on behalf of
both direct and indirect purchasers of hydrogen peroxide in an
alleged price-fixing conspiracy. This is the first case in which a
Canadian court has certified a contested class action involving
Why This Case Is Important:
The case departs from decisions by other Canadian courts (e.g.
Chada v. Bayer; Pro-Sys Consultant v. Infineon
("DRAM")), which have held that plaintiffs in an indirect
purchaser case must put forward a workable methodology to
demonstrate harm on a class wide basis. The court here was not
prepared to look closely at the evidence of the competing experts
on the issue of establishing class wide harm. The court ruled that
at the certification stage it was ill-equipped to resolve competing
expert opinions. It was sufficient for the court to "be
satisfied that a methodology may exist for the
calculation of damages."
The Court cited the recent Ontario Court of Appeal decisions in
Markson and Cassano, which held that section 24
of the Class Proceedings Act could provide a mechanism to
calculate aggregate damages that otherwise would have to be
determined on an individual basis. Section 24(1)(b) provides that
aggregate damages are only available if no questions of fact or law
other than those relating to the assessment of monetary relief
remain to be determined in order to establish the amount of the
defendant's monetary liability. In the hydrogen peroxide case,
the Court held that it is sufficient for purposes of section
24(1)(b) if potential liability can be established on a
class-wide basis, even though entitlement to monetary
relief may depend on individual assessments.
The Court also rejected the defendants' argument that the
proposed class was overly broad, including as it may virtually all
individuals and businesses in Canada. The possibility that some
class members may not have actually suffered a loss (i.e., if it
could be shown that the alleged "supra competitive" price
was not inflicted on every level of every distribution channel) was
not fatal to the certification motion. The Court held that it is
not necessary to show that every member of a proposed class
suffered damage in order for the proposed class to be
It is expected that leave to appeal this decision will be
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