Antitrust trilogy goes beyond competition cases

Christopher Naudie

Apr 20, 2015

Julius Melnitzer, Law Times

(Recap)

The trilogy of cases surrounding the Supreme Court of Canada’s 2013 decision in Pro-Sys Consultants Ltd. v. Microsoft Corp. is perhaps best known for its rejection of the American doctrine prohibiting antitrust class actions against indirect purchasers.

But the trilogy is equally important for two principles that bolster the burden on plaintiff’s certification in class actions generally. The first is the top court’s ruling that judges must scrutinize proposed methodologies at the certification stage to ensure they offer a “realistic prospect of establishing loss on a class-wide basis.” The second is the requirement that the class be identifiable by potential members, as established by another of the trilogy cases, Sun-Rype Products Ltd. v. Archer Daniels Midland Co.

Still, Chris Naudie of Osler, Hoskin & Harcourt LLP in Toronto says the courts haven’t gone far enough in dealing with the methodology requirement.

“Some courts simply point to conflicts in the evidence as to the effectiveness of the methodology and then just stop there instead of assessing whether the methodology is plausible,” he says. “Their position is that the certification motion is not the time and place to address conflicts in the evidence, but that in my view should not end the inquiry as to whether there is some basis in fact that the proposed methodology will establish the loss on a class-wide basis.”

Naudie derives some optimism, however, from the January 2015 decision of the B.C. Court of Appeal in Charlton v. Abbott Laboratories Ltd. The court held that the absence of generalized risk data establishing causation on a class-wide basis was an insurmountable evidentiary barrier to certification.

“Charlton shows that there is some traction in appellate courts to breathe meaning into the standard, but it’s not clear that all courts are getting the message,” says Naudie.

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