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Siskinds’ class action partner, Linda Visser, was quoted in an article by Canadian Lawyer Magazine regarding the lithium-ion battery class action settlement. Linda discusses how this particular action promotes access to justice and more. Read the full article below.

Bernise Carolino · Canadian Lawyer Magazine · Posted: August 26, 2021

The Ontario Superior Court of Justice and the Superior Court of Quebec have approved $21.3 million in settlement funds for the Canadian lithium-ion batteries price-fixing class action and a protocol for the distribution of such funds.

Siskinds LLP, based in Ontario and Quebec; Camp Fiorante Matthews Mogerman LLP, a boutique firm in Vancouver; Belleau Lapointe, s.e.n.c.r.l., a boutique firm in Montreal; and Sotos LLP in Toronto acted as class counsel in the class proceeding initiated in 2013, which alleged price-fixing in the market for lithium-ion batteries (LIBs) and certain products containing LIBs in Canada.

Individuals who bought LIBs or LIB products in Canada between Jan. 1, 2000 and Jan. 1, 2012 may claim settlement benefits, including for undocumented purchases, said a news release announcing approval of the protocol. The settled defendants did not admit wrongdoing or liability.

This class proceeding is notable because it sheds light on who can assert a claim in a price-fixing conspiracy case and which claims they can bring, says Linda Visser​, a partner in the class action department of Siskinds LLP. The case ensures that all those affected by an unlawful conspiracy can make a claim, which in turn promotes access to justice, she adds.

The class action dealt with unsettled legal issues on its certification motion, Visser​ says, with the first being whether umbrella purchasers, or those who bought the batteries directly or indirectly from a non-defendant manufacturer, have a cause of action in the price-fixing conspiracy case.

The plaintiffs submitted that, because the defendants controlled the market and generally drove up market prices, all buyers of the relevant product were affected by the defendants’ wrongful conduct. The Superior Court and the Divisional Court disagreed with the plaintiffs’ theory, but the Ontario Court of Appeal overturned this decision. The defendants were then denied leave to appeal to the Supreme Court of Canada.

Another highly contested issue was whether the Competition Act is a complete code, such that breaching it cannot be the basis for a common law claim for tort of unlawful conspiracy. This issue was significant because it determined the remedies available to the class, Visser explains. For example, punitive damages are only available at common law.

The Superior Court again ruled against the plaintiffs, who then succeeded on appeal to the Divisional Court. In Pioneer Corp. v. Godfrey, 2019 SCC 42, the Supreme Court of Canada’s decision was favourable to the plaintiff, represented by Siskinds and by Camp Fiorante Matthews Mogerman, on all issues, including in relation to the Competition Act.

The class action was also novel because, three years after the litigation was initiated by a firm that took limited steps pursuing the claims, Option consommateurs, represented by Belleau Lapointe, filed a successful application which replaced the counsel of record and which made it the representative plaintiff, Visser says. She notes that the general rule in Quebec is for courts to determine the issue of carriage based on the first-to-file rule, absent exceptional circumstances.

Visser also expects that, following this case, coordinated discovery among multiple jurisdictions, which may promote lower costs and greater efficiencies in class actions brought in more than one province, will become more common. In turn, this may give rise to challenges as parties and courts grapple with different discovery rules.

“At the time of settlement with the last defendants, the parties were in the discovery phase,” Visser says. “This case explored possible means of coordinating discovery between the Ontario and Quebec actions.”

Lastly, Visser stresses that a user-friendly claims process is key to advancing access to justice.

“Consistent with other recent distributions, counsel have sought to develop a claims process that is user friendly and reflects that some class members will not have retained proof of purchase,” she says. “At the same time, the claims administrator is required to implement fraud control measures to prevent duplicative or fraudulent claims.”