Foreword

• Author: Kathryn N. Feldman, Robert J. Sharpe, and Kenneth C. Mackenzie
• Profession: Justice of the Court of Appeal for Ontario/Justice of the Court of Appeal for Ontario/Justice of the Court of Appeal for British Columbia
• Pages: 1-2

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

Actl

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

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