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