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A Decade of Competition Law Class Actions: From Chadha to the ‘New Trilogy’

Abstract: The brief history of Canadian competition law class actions has been marked by a significant evolution in approach, from hesitancy to acceptance. The debate has focused on the evidentiary standard and the viability of indirect purchaser claims. Early attempts at certification in competition law class actions failed, in part, because Canadian courts imposed American evidentiary standards. In Chadha v Bayer Inc, the Ontario Court of Appeal held that plaintiffs must provide a methodology for establishing pass-through. Ontario courts have since taken a more flexible approach, but Chadha remains in effect. In British Columbia, the standard established in Chadha has never been applied; the British Columbia Court of Appeal has indicated that a plaintiff can use statistical evidence to prove fact of loss and quantum of damages concurrently. The Supreme Court of Canada recently released a trilogy of price-fixing class action certification decisions, which dealt with four issues central to the certification analysis in price fixing cases: (1) whether defendants can rely on the passing-on defence, (2) whether indirect purchasers have a cause of action, (3) the evidentiary requirements at the certification stage, and (4) the evidence required at the certification stage in respect of pass-through. The Supreme Court’s conclusions on these issues simplified some aspects of the certification motion, but the need for complex expert evidence on price-fixing certification is an access to justice concern.

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