Aggregate Assessment of Damages Allows Certification of Conspiracy Class Actions, Courts Hold

by Michael Osborne, Affleck Greene McMurtry LLP

Irving Paper Ltd. v. Atofina Chemicals Inc. and Pro-Sys Consultants Ltd. v. Infineon Technologies AG

In two recent decisions, the Ontario Superior Court and the British Columbia Court of Appeal relied on the aggregate damages provisions of the Class Proceedings Act in their respective provinces to certify class actions seeking damages for alleged conspiracies to fix prices for hydrogen peroxide and DRAM memory chips. In doing this, both courts side-stepped the requirement in the aggregate damages provisions that liability must be proved before damages can be assessed in the aggregate. A close examination of the decisions suggests, however, that the courts have in effect done away with this statutory requirement.