A Decade of Competition Law Class Actions: From Chadha to the 'new Trilogy'

• Author: Charles M Wright, Andrea DeKay, Linda Visser, and Kerry McGladdery Dent
• Pages: 145-171

145

A DECADE OF COMPETITION LAW

CLASS ACTIONS: FROM

CHADHA

TO THE “NEW TRILOGY”

Charles M Wright, Andrea DeKay, Linda Visser,

and Kerry McGladdery Dent

Abstract: The brief history of Can adian competition law class

actions has been marked by a signif‌icant evolution in ap-

proach, from hesitancy to acceptance. The debate has focused

on the evidentiar y standard and t he viability of indirect pur-

chaser claims. Early attempts at certif‌ication in competition

law class actions failed, in part, because Canadian courts im-

posed American evidentiary standards. In Cha dha v Bayer Inc,

the Ontario Court of Appeal held that plaintiffs must provide

a methodology for e stablishing pass-through. Ont ario courts

have since taken a more f‌lexible approach, but Chadha remains

in effect. In British Columbia, the standard established in

Chadha has never been applied; the Brit ish Columbia Court of

Appeal has ind icated that a plaintiff can u se statistical evidence

to prove fact of loss and quantum of dam ages concurrently.

The Supreme Court of Canada recently released a trilogy of

price-f‌ixi ng class action certif‌ication deci sions, which de alt

with four issues cent ral to the certif‌ication analysis in pr ice-

f‌ixing cases: (1) whether defendants can rely on the passing-

on defence, (2) whether indirect purchasers have a cause of

action, (3) the evidentiary requirement s at the certif‌ication

stage, and (4) the evidence required at the certif‌icat ion stage in

respect of pass-through. The Supreme Court’s conclusions on

these issues simplif‌ied some aspects of the certif‌ication mo-

tion, but the need for complex expert evidence on price-f‌ixing

certif‌ication motions i s an access to justice concern.

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