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

AuthorCharles M Wright, Andrea DeKay, Linda Visser, and Kerry McGladdery Dent
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.
ccar 10.indb 145 1/19/2015 9:09:53 AM
ccar 10.indb 146 1/19/2015 9:09:53 AM

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