International Mass Actions and Class Actions - A. Canada

This sub-chapter provides an overview of antitrust class action
litigation in Canada and consists of five parts. The first part provides a
brief history of private antitrust litigation in Canada, including the
growing importance of antitrust class action litigation. The second part
explores antitrust claims potentially suitable for class treatment in
Canada, including a review of statutory and common law causes of
action. Part three discusses class certification procedure. Part four
addresses antitrust class certification requirements and standards,
including a review of the Supreme Court of Canada’s recent antitrust
class action trilogy in which it rejected the Illinois Brick doctrine and
prescribed the standard of proof at the certification stage. Finally, part
five considers antitrust class action settlements in Canada.
A. Brief History of Private Antitrust Litigation in Canada
Antitrust law in Canada dates back to 1889 with the enactment of
federal criminal anti-combines” legislation prohibiting conspiracies,
combinations and agreements that unduly restrained trade.1 A private
statutory right of action for damages has existed for the last forty years,
starting in 1976, when the civil statutory cause of action now found in
section 36 of the federal Competition Act was enacted.2
Since 1986, the Competition Act3 has been the primary antitrust
statute in Canada. It is administered by the Competition Bureau (the
Bureau),4 an independent government agency headed by the
1. An Act for the Prevention and Suppression of Combinations formed in
Restraint of Trade, S.C. 1889, c. 41 (Can.).
2. See An Act to Amend the Co mbines Investigatio n Act and the Bank Ac t
and to repeal an Act to amend an Act to amend the Combines
Investigation Act a nd the Criminal Code, S.C. 1974-75-76, c. 76 § 12;
Combines Investigation Act, R.S.C. 1970, c. C-23 § 31.1.
3. R.S.C., c. C-34 (Can.).
4. Competition Bureau, available at http://www.competitionb
232 Class Actions Handbook
Commissioner of Competition. The main substantive provisions of the
Competition Act include criminal offences in Part VI (Offences in
Relation to Competition) and civil “reviewable mattersin Parts VII.1
(“Deceptive Marketing Practices) and VIII (Matters Reviewable by
Tribunal”). The criminal offences found in the Competition Act include
conspiracies between competitors (section 45), bid-rigging (section 47)
and intentional false or misleading representations (section 52).
Misrepresentations to the public,5 refusal to deal,6 price maintenance,7
tied selling,8 and abuse of dominance9 are civilly reviewable by the
Competition Tribunal10 (the “Tribunal”) and, in certain cases, the courts
under Parts VII.1 and VIII of the Competition Act. As discussed below,
section 36 of the Competition Act creates a private right of action for
damages only in respect of breaches of the criminal provisions in Part VI
or of an order made under the Competition Act, and not the civilly
reviewable practices.
Historically, there has been limited private competition litigation in
Canada (both in absolute terms and in comparison to the United States).
However, since the enactment of provincial class proceedings legislation
(which occurred at various times depending on the jurisdiction), antitrust
class actions have become common in Canada. A relatively recent
plaintiff-friendly shift in the approach by Canadian courts to the
certification of antitrust class actions brought on behalf of plaintiff
classes consisting in whole or in part of indirect purchasersa
possibility under Canadian law insofar as (discussed below) the Illinois
Brick doctrine11 does not apply in Canada—is further increasing antitrust
class actions in Canada. Canadian plaintiffs frequently pursue both
copycat suitsinitiated after class proceedings have been commenced in
the United States and, to a much lesser extent, class actions targeting
anti-competitive conduct occurring within Canada only.
While historically Canadian antitrust class actions tended to follow
investigations and/or prosecutions by the Canadian Competition Bureau
and/or foreign competition authorities, it is increasingly common for
such litigation to be commenced in advance of an investigation by, or
5. Competition Act, § 74.01 (Misrepresentations to the public).
6. Id. § 75 (Refusal to deal).
7. Id. § 76 (Price maintenance).
8. Id. § 77 (Exclusive Dealing, Tied selling and Market Restriction).
9. Id. § 79 (Abuse of dominance).
10. Competition Tribunal, available at
11. Illinois Brick Co. v. Ill., 421 U.S. 720 (1977).
International Mass Actions and Class Actions A. Canada
despite a decision of, the Bureau (or foreign authorities) not to pursue or
to discontinue an investigation.12
To date, the largest number of Canadian antitrust class actions have
involved allegations of price-fixing and other cartel conduct, almost
always in the context of an alleged international cartel.13 However, there
have also been antitrust class actions involving misleading advertising
and (prior to amendments to the Competition Act which de-criminalized
resale price maintenance) price maintenance claims.14
Although such class actions now arguably constitute the most
important type of private competition litigation in Canada, the extent of
the activity in Canada is (still) not nearly as great as in the United States.
This is principally due to the relatively modest amounts awarded in
Canadian litigation generally, the infrequency of civil jury trials, the lack
of availability of treble damages to plaintiffs, and the relatively small
amount of commerce affected by anticompetitive conduct in Canada
12. Fanshawe College of Applied Arts and Tech. v. AU Optronics Corp.,
2015 CarswellOnt ¶115-20 (Can. Ont. S.C.J.) (WL) (no known
investigation by the Canadian Competition Bureau of the alleged cartel
involving liquid crystal display panels), Osmun v. Cadbury Adams
Canada Inc., 2010 CarswellOnt 2813 (Can. Ont. S.C.J.) (WL) (class
actions in respect of alleged conspiracy involving chocolate products
preceded disclosure of Bureau investi gation) and Pro-Sys Cons ultants
Ltd. v. Infineon Tech. AG, 2009 CarswellBC 3035 (Can. B.C.C.A.) (WL)
(class proceedings in respect of alleged conspiracy in respect of dynamic
random access memory or DRAM commenced despite discontinuance of
Bureau investigatio n).
13. E.g., Chadha v. Bayer Inc (2003), 223 D.L.R. (4th) 158 (Can. Ont CA)
[Chadha], aff’g (2001), 200 D.L.R. (4th) 309 (Can. Ont. Div. Ct), rev’g
(1999), 45 O.R. (3d) 29 (Can. Ont. S.C.J), leave to appeal to SCC denied
[2003] SCCA no 106 (Can.) (QL); Harmegnies v. Toyota Canada, [2007]
J.Q. No. 1072 (Can. Que. S.C.J.) (QL), aff’ d 2008 QCCA 380 (Can.),
leave to appeal to SCC refused, [2008] S.C.C.A. No. 173 (Can.) (QL);
Price v. Panasonic Canada Inc (2002), 22 CPC (5th) 382 (Can. Ont.
S.C.J.); Watson v. Bank of Am. Corp., 2015 BCCA362 (Can.); Shah v.
LG Chem, Ltd., 2015 ONSC 6148 (Can.).
14. E.g., Fairview Donut Inc. v. The TDL Group Corp., 2012 ONSC 1252
¶¶ 635-50 (Can.), aff’d 2012 ONCA 867 (Can.), leave to appeal to the
S.C.C. refused, [2013] S.C.C.A. No. 47 (Can.) (QL); Ontario Ltd. v.
Quizno’s Canada Resta urant Corp. (200 8), 89 O.R. (3d), r ev’d (2009), 96
O.R. (3d) 252 (Can. Ont. Div. Ct.), appeal dis’d, 2010 ONCA 466 (Can.);
Axiom Plastics v. E.I. Dupont Canada (2007), 87 O.R. (3d) 352 (Can.
Ont. S.C.J.), aff’d (2008) 90 O.R. (3d) 782 (Can. Ont. Div. Ct.); Murphy
v. Compagnie Amway, 2015 CF 985 (Can.).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT