Foreword

• Author: Kathryn N. Feldman, Robert J. Sharpe, and Kenneth C. Mackenzie
• Pages: 1-2

1

FOREWORD

Conspiracy litigation is an emerging area of law in Canada. Class actions

to obtain redress for anticompetitive behaviour in the marketplace have

required courts in this country to face some of the issues already tackled

by courts in the United States, as well as some distinct issues of our own.

Many of these issues, both procedural and substantive, arise out of the

unique nature of a class action proceeding, which is based on the concept

that the members of the class have all suffered damage as a result of the

same wrong and that there are, therefore, common issues that can be

most expeditiously determined in one proceeding.

Anticompetitive conduct affects consumers of products and services

and is regulated under Part VI of the Competition Act. The job of enforce-

ment by prosecution lies with the Competition Bureau, but there is also

provision in the statute for a private right of action by anyone who has

suffered a loss. When products or services are distributed on a large scale,

the potential for class actions to pursue that private right is obvious.

Interestingly, common issues have led to common problems involving

both the complexity of the procedure and the intricacy of the legal theo-

ries of liability and damages for anticompetitive behaviour.

For example, sometimes the harm to each individual member of the

class is financially insignificant, but the class proceeding is pursued as

a deterrent measure. Is deterrence a meaningful objective for these pro-

ceedings, and how does it fit with the deterrence achieved by the threat

of prosecution and significant penalties under the Competition Act? Can a

class action be a substitute for prosecution, or only a follow-on proceed-

ing? Another important issue that is evolving in the jurisprudence of

both countries is the role of expert evidence, at the certification stage of

a proceeding, to demonstrate that loss has been suffered on a class-wide

basis. A third issue is how consumers across provincial or international

borders are treated in class actions brought in different jurisdictions. A

fourth is the method for estimating, calculating, and distributing damages