The Litigator

THE LITIGATOR

Commentary on Law Affecting Business

The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
365 Bay Street, Suite 200  ·  Toronto, Canada
416 360 2800  ·  info@agmlawyers.com  ·  www.thelitigator.ca

Supreme Court Class Action Decision In Godfrey

The Supreme Court of Canada released its judgment today in the price-fixing class action, Pioneer Corp. v. Godfrey, 2019 SCC 42.  The Court held:

Limitations

  • The discoverability rule applies to extend the two-year limitation period in section 36(4)(a)(i) of the Competition Act, such that it begins to run only when the material facts on which the cause of action granted by section 36(1)(a) of the Competition Act is based are discovered or ought to have been discovered by the exercise of reasonable diligence.
  • It is not plain and obvious that the doctrine of fraudulent concealment could not delay the running of the limitation period.

Umbrella Purchasers

  • It is not plain and obvious that the umbrella purchasers’ cause of action under section 36(1)(a) of the Competition Act cannot succeed. This is not to say that umbrella purchasers’ actions will not be complex or otherwise difficult to pursue.

Complete Code

  • It is not plain and obvious that a plaintiff is precluded from bringing common law and equitable causes of action alongside a claim under section 36(1) of the Competition Act.

Proof of Loss

  • In order for loss-related questions to be certified as common issues, a plaintiff expert’s methodology need only be sufficiently credible or plausible to establish that loss reached the requisite purchaser level.
  • It is not necessary that the plaintiff’s expert methodology establish that each and every class member suffered a loss, nor must it be able to identify those class members who suffered no loss so as to distinguish them from those who did.
  • In Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, the Court directed that, for a court to certify loss-related questions as common issues in a price-fixing class proceeding, it must be satisfied that the plaintiff has shown a plausible methodology to establish that loss reached one or more purchasers – that is, claimants at the purchaser level.
  • For indirect purchasers, this would involve demonstrating that the direct purchasers passed on the overcharge.

Aggregate Damages

  • To use the aggregate damages provisions, the trial judge must be satisfied, following the common issues trial, that all class members suffered loss, or that the trial judge can distinguish those who have not suffered loss from those who have.
  • While it is sufficient for the purposes of certifying loss as a common issue for the plaintiff expert’s methodology to show merely that loss reached the indirect purchaser level, whether the methodology is sufficient to establish the defendant’s liability to all class members will depend on the findings of the trial judge.
  • At the certification stage, no comment can or should be made about the potential conclusions the trial judge may reach. Neither the range of possible findings of the trial judge following the common issues trial, nor the unavailability of aggregate damages for class members that did not suffer loss, is relevant to the decision to certify aggregate damages as a common issue.

Kyle Taylor
Affleck Greene McMurtry LLP

Kyle Taylor

Kyle Taylor is an experienced competition and commercial litigator. He has built a distinctly diverse practise, representing both plaintiffs and defendants in cutting edge competition cases and class actions, as well as all manner of business disputes, including corporate, contract, securities, fraud and malfeasance, real estate, and international litigation.

Having practised for many years in New York, Kyle is rare among litigators to combine expertise in American litigation with a Canadian litigation practise. He has experience in major jurisdictions in both countries, including state, provincial, federal, and appellate courts. The breadth and versatility of his practise uniquely benefit clients from either side of the border, no matter the case or what side of the “v.” they appear.

Kyle started his legal career as a law clerk for U.S. District Court Judge Joseph L. Tauro of the District of Massachusetts. Before joining Affleck Greene McMurtry, Kyle practised in the New York office of the global litigation firm Quinn Emanuel Urquhart & Sullivan. At Quinn Emanuel, Kyle represented Fortune 500 companies and individuals alike in competition cases, class actions, and a variety of commercial disputes.

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