Canada Overview

Introduction

Private law competition litigation is available in Canada through two statutory avenues: Section 36 and Section 103.1 of the Competition Act (the Act). The former allows consumers to sue defendants for criminal offences relating to competition, while the latter allows consumers to seek leave before Canada’s Competition Tribunal to bring claims arising from vertical restraints. Section 36 claims became possible in the late 1970s but were infrequently used until the 1990s when several provinces enacted legislation enabling class action proceedings. This spurred and continues to spur the growth of private competition litigation in Canada. Section 103.1 claims became possible in 2002 and allowed private parties to seek relief for conduct subject to a rule of reason, namely refusal to deal, exclusive dealing, tied selling and market restriction.

To date, all private law competition class actions have settled before trial, such that many issues remain to be canvassed in Canada’s legal landscape as they relate to the merits of claims alleging anticompetitive behaviour. There have also been numerous unsettled issues relating to the procedural test for certifying an action as a class proceeding, many of which were resolved by the Supreme Court of Canada in its judgments in the Optical Disc Drives class action (Godfrey) case.[2] These issues are discussed in further detail below.

The Competition Act: history and purposes

In 1976, private competition law litigation became possible in Canada through amendments to the Combines Investigation Act (the predecessor legislation to the Act).[3] However, litigation was infrequent until the 1990s when Ontario, Quebec and British Columbia enacted class action legislation.[4] This legislation was critical to the growth of private competition litigation. These private statutory enforcement mechanisms provide a supplement to public enforcement by the Canadian Competition Bureau.[5]

Today, the Act is the federal statute that prescribes and governs private competition litigation in Canada.[6] The key provisions include criminal offences in Part VI (Offences in Relation to Competition) and civil, reviewable matters in Parts VII.1 (Deceptive Marketing Practices) and VIII (Matters Reviewable by Competition Tribunal). The Competition Tribunal (the Tribunal) is a quasi-judicial body with exclusive jurisdiction over the Act’s civil provisions in Part VIII and shared jurisdiction with the courts for deceptive marketing practices in Part VII.1.

Statutory cause of action under Section 36 of the Competition Act

The statutory cause of action for private competition litigation is found in Section 36 of the Competition Act. The provision provides that:

36 (1) Any person who has suffered loss or damage as a result of
  1. conduct that is contrary to any provision of Part VI, or
  2. the failure of any person to comply with an order of the Tribunal or another court under this Act,

may, in any court of competent jurisdiction, sue for and recover from the person who engaged in the conduct or failed to comply with the order an amount equal to the loss or damage proved to have been suffered by him, together with any additional amount that the court may allow not exceeding the full cost to him of any investigation in connection with the matter and of proceedings under this section.[7]

There are two types of conduct that a plaintiff may recover for: (1) breaches of the criminal offences in the Act (Part VI of the Act) or (2) a failure to comply with a tribunal order or order under the Act. To succeed, a plaintiff must prove, on a balance of probabilities: all of the elements of the alleged offence, including the actus reus and mens rea; and the damage that was caused by the offence. This provision is compensatory rather than punitive since the plaintiff is only entitled to recover loss suffered by it plus the costs of the legal proceeding and any related investigation. All common law and statutory criminal defences available in a criminal case are available to the defendant in a Section 36 action.

Conduct

Conduct contrary to Part VI of the Competition Act

Plaintiffs may seek damages for ‘conduct that is contrary to Part VI of the Act’ which consists of 16 criminal offences. Most litigation under Section 36(1) has involved five offences:[8] conspiracy, foreign directions, bid rigging and, to a lesser extent, misleading advertising, deceptive telemarketing, and double ticketing.[9]

Failure to comply with an order of the Tribunal or another court under the Competition Act

A plaintiff can also bring a claim against a defendant who has breached an order of a tribunal or other court under the Act. Tribunal orders are civil and arise from reviewable practices under Parts VIII and VII of the Act while court orders may stem from reviewable practices or criminal offences. To date, there are no reported Section 36(1) proceedings arising from a breach of an order. Given that most matters investigated by the Bureau are settled and reflected in consent agreements that are binding like court orders, it is possible that breaches of these agreements may give rise to future claims.[10]

Damages

Pursuant to Section 36(1), to recover damages, a plaintiff must prove that the defendant’s breach caused it to suffer loss or damages. The provision, therefore, requires actual loss and a causal connection between the offence and the loss.[11] Experience on certification motions suggests that this may be a challenge for plaintiffs at trial.

Unlike common law or equitable claims, plaintiffs cannot recover equitable remedies or punitive, general or aggravated damages under Section 36 of the Competition Act.[12] Rather, the words ‘amount equal to the loss or damage’ represent ‘single and actual damages suffered’, which is full and fair compensation calculated to place the plaintiff in the same position it would have been in had the conduct not occurred.[13]

However, plaintiffs advancing Section 36 claims can also seek recovery of damages for the full cost of any investigation. A plaintiff must lead evidence to support a claim of investigation costs, which must be necessary, reasonable and based on evidence.[14] These are distinct from court costs, which are determined based on normal cost rules that typically award the successful party a portion of their legal costs. Pre- and post-judgment interest is also awarded on damages under provincial statutes.

Burden of proof

The Act contains an evidentiary presumption that helps parties who have suffered loss due to anticompetitive conduct and attempts to avoid the duplication of evidence between criminal and civil proceedings.[15] Specifically, Section 36(2) creates a rebuttable presumption that the Act was breached if the defendant was convicted in a criminal proceeding for that breach. Section 36(2) permits a litigant to use the record of proceedings in any court in which the defendant was convicted as proof that the defendant breached the Act and any evidence about the effect of those acts on the plaintiff may be introduced as evidence. Typically, this evidence would be a statement of admissions and certificate of conviction, or the decision and reasons for the criminal conviction (or both). For confidentiality reasons, it would not typically include the Bureau’s investigative file.

When the defendant has not previously been convicted, the plaintiff must prove the offence alleged on the civil standard of a balance of probabilities.

Limitation period

A litigant has two years to bring a Section 36 claim. The Act prescribes a two-year limitation period of the later of: (1) a date on which the anticompetitive conduct was carried out or the order was breached; or (2) the final disposition of any criminal proceedings relating thereto. The commencement of both criminal proceedings and class proceedings related to the alleged breach suspend the limitation period, as does the defendant’s fraudulent concealment of the breach where it would be unconscionable for the defendant to rely on the advantage gained by having concealed the existence of a cause of action.

In September 2019, the Supreme Court of Canada determined that the principle of ‘discoverability’ applies to Section 36 claims. Accordingly, the limitation period for such claims does not begin to run until the plaintiff discovers the material facts giving rise to the cause of action, or ought to have discovered them by the exercise of reasonable diligence.[16]

Court of competent jurisdiction

A plaintiff must bring its claim before a court of competent jurisdiction. In private law competition litigation, plaintiffs often assert common law or equitable claims (or both) in conjunction with statutory claims under the Act. Therefore, the provincial Superior Court (or its equivalent) is often the preferred court because these courts have inherent jurisdiction to hear any matter unassigned to another court including common law and equitable claims. The Canadian Federal Court has jurisdiction to hear statutory claims but does not have jurisdiction to award damages for common law or equitable claims.

A Canadian court will apply a three-part test to determine whether it can assume jurisdiction over a foreign defendant: (1) Does the court have presumptive jurisdiction over the foreign defendant? (2) Can the court’s presumptive jurisdiction be rebutted? (3) If the court has presumptive jurisdiction that has not been rebutted, should the court decline to exercise its jurisdiction in favour of a clearly more appropriate forum?

The party asserting jurisdiction (typically, the plaintiff) has the burden of establishing presumptive jurisdiction. Courts will find presumptive jurisdiction over a foreign defendant if there is a ‘real and substantial connection’ between the foreign defendant and the jurisdiction in which the action is commenced. The Supreme Court of Canada has, to date, confirmed four presumptive connecting factors to establish a ‘real and substantial connection’: (1) the defendant is domiciled or resident in the province; (2) the defendant carries on business in the province; (3) the tort was committed in the province; and (4) a contract connected with the dispute was made in the province.[17]

In the context of price-fixing actions involving international companies, Canadian courts have held that ‘where defendants conduct business in Canada, make sales in Canada and conspire to fix prices on products sold in Canada, Canadian courts have jurisdiction.’[18] Courts have assumed jurisdiction over foreign defendants where the product at issue was sold in Canada.[19]

If presumptive jurisdiction is established, courts have discretion to decline jurisdiction based on the doctrine of forums non conveniens. To convince a Canadian court to decline jurisdiction on this basis, the party challenging jurisdiction has the burden of establishing that there is another clearly more appropriate forum in which the case should be tried.[20]

Common law and equitable claims

As set out above, plaintiffs often plead common law and equitable claims in conjunction with statutory claims under the Act. Such claims frequently include civil conspiracy, unlawful interference with economic interests, waiver of tort[21] and unjust enrichment. Common law and equitable claims may enable plaintiffs to seek broader remedies and to avail themselves of potentially lengthier limitation periods under provincial statutes.

Whether it was open to plaintiffs to plead common law and equitable claims alongside breaches of the Act was an unsettled issue until the Supreme Court of Canada’s decision in Godfrey. Godfrey has confirmed that plaintiffs are not barred from advancing claims other than the statutory claims provided for under the Act.[22]

Discovery

All civil actions in Canada, including Section 36 claims under the Act, are subject to both documentary and oral discovery.

During the documentary discovery phase of a civil action, a party is typically required to disclose and, subject to privilege, produce, all relevant documents in its power, possession or control. Unless a court orders otherwise, parties are generally only entitled to conduct an examination for discovery (i.e., deposition) of one witness on behalf of each party named in the litigation, unless they obtain leave from the court for additional examinations.

Where the proceeding is brought as a class action, there is no right to pre-certification discovery.

Class actions

Overview

Class actions allow for the disposition of legal issues common to a defined class. They are intended to promote the public interest by facilitating three goals: judicial economy, access to justice and behaviour modification.[23] The creation of class action legislation in Canada made it cost-effective for litigants to pursue private law competition claims under the Act. Class actions are predominantly statute-based in Canada, and nine out of 13 Canadian provinces and territories have enacted class action legislation.

To date, the majority of class actions arising out of breaches of the Competition Act have been certified. As noted, there has not yet been a trial decision in a Canadian competition class action.

Subject to court approval, third-party funding may be available for competition class actions in Canada. Third-party funding agreements have frequently been approved by courts in Ontario.

Certification

In Canada, the court plays a gate-keeper role in class action lawsuits. Every class action must be certified (or ‘authorised’ in Quebec) before it can proceed on the merits. The plaintiff must bring a motion for certification (or authorisation) and the court then decides whether to permit the plaintiff to bring the action on behalf of the proposed class. Certification is a screening device that evaluates whether the procedure is appropriate for the claim rather than evaluating the merits of the claim itself. The evidentiary standard is low and courts apply a flexible and generous approach that strikes a balance between efficiency and fairness.[24]

In Ontario (and other common law provinces), the plaintiff must establish five elements on a certification motion. The plaintiff must demonstrate ‘some basis in fact’ for each of the elements other than the first requirement: the existence of a cause of action. ‘Some basis in fact’ is a lower standard than the civil balance of probability standard.[25] In Quebec, the relevant test is called ‘authorisation’ and differs slightly from the certification test.

Unless a party is contesting jurisdiction, Canadian courts will rarely permit pre-­certification motions such as a motion to dismiss or motion to strike.

Requirements for certification

Cause of action

The plaintiff in a competition class action must prove that the pleadings disclose a cause of action. This requirement exists in all provincial class action legislation except in Quebec. The court is not permitted to consider evidence at this stage. The plaintiff will meet this threshold unless, assuming all facts to be true, it is plain and obvious that the plaintiff’s claim cannot succeed.[26]

The most frequently litigated issue under this requirement has been whether indirect and umbrella purchasers in the context of a price-fixing action have a cause of action under Section 36 of the Competition Act. In 2013, the Supreme Court of Canada confirmed that indirect purchasers have standing to sue under Section 36 of the Act for recovery of overcharge passed on to them through the chain of distribution.[27] In September 2019, the Supreme Court made the same decision with respect to umbrella purchasers (i.e., purchasers whose product was manufactured and supplied by a non-defendant).[28] The Supreme Court held that umbrella purchasers have a cause of action on the basis that the Act provides a remedy to ‘any person’ who has suffered loss or damage as a result of conduct contrary to the applicable provision of the Act, and under the theory of umbrella pricing, the entire market for the product at issue is affected because anticompetitive activity causes non-cartel manufacturers to also raise their prices. Notwithstanding the Supreme Court decision in Godfrey, plaintiffs still face challenges to certify the claims of umbrella purchasers, as evidenced by the sole Canadian competition class action certification decision to date that addresses the claims of umbrella purchasers post-Godfrey.[29]

Identifiable class

There is no numerosity test in Canada. The plaintiff must only prove that there is an identifiable class of two or more persons. This is not an onerous test. Identifying the class determines who is entitled to notice and relief, and who is bound by the court’s judgment. The plaintiff is not required to identify all class members at this stage.[30] The plaintiff is only responsible for establishing a methodology with a realistic prospect of identifying all the class members.

Common issues

The plaintiff must prove that the claims raise common issues. This is a core requirement of class certification, and the underlying question is whether allowing the case to proceed as a class action will avoid duplication of fact-finding and analysis. There are four key principles that guide the commonality requirement: (1) an issue will be ‘common’ only where its resolution is necessary to the resolution of each class member’s claim; (2) class members do not need to be identically situated in relation to the opposing party; (3) class members’ claims must share a substantial common ingredient, but common issues do not need to predominate over non-common issues; and (4) success for one class member must not mean failure for another.[31] While a class action can be certified even though there exist numerous individual issues, the court will examine the significance of the common issues in relation to the individual ones as part of its analysis.[32]

Where harm is an element of the cause of action (as it is with the statutory claim under the Act, as well as most common-law claims), the plaintiff must establish that the fact of class members having suffered harm is a common issue. In competition cases, this is typically done through the expert evidence of an economist, and the plaintiff must demonstrate that there exists a workable economic methodology for proving loss on a class-wide basis. The question of what, precisely, the expert methodology must demonstrate has been a hotly litigated issue for many years in Canada, in particular as it relates to indirect purchasers who are downstream in the purchasing chain and did not buy directly from the manufacturer (e.g., end consumers). To demonstrate that they suffered harm, indirect purchasers must prove that any overcharges paid by the person from whom they bought were passed on to them, such that they paid a higher price as a result of the alleged conduct.

In September 2019, the Supreme Court of Canada held in Godfrey that the expert methodology at the certification stage needs to be sufficiently plausible to establish that loss reached the indirect purchaser level, and not that each person at that level suffered harm. The court held that it is not necessary for the methodology to establish that each and every class member suffered a loss, nor to be able to identify those class members who did not suffer a loss to distinguish them from those who did.[33]

Preferable procedure

The plaintiff must prove that a class action is the preferable procedure for the resolution of common issues raised by the claim. The test for preferable procedure is informed by the three goals of class actions. The relevant test for this requirement has two branches: that the class action is fair, efficient and manageable; and that it is better than other reasonably available procedures for obtaining redress for class members, such as joinder, test cases, consolidation or any other means of resolving the dispute.[34] The defendant has the burden of raising a specific alternative.[35] In Ontario, new legislation received royal assent in July 2020 that will amend the preferable procedure test in the Ontario Class Proceedings Act, and introduce ‘predominance’ and ‘superiority’ requirements akin to those found in Rule 23(b)(3) of the US Federal Rules of Civil Procedure.[36] Once the amended legislation comes into force (on a date yet to be announced), a plaintiff will have to establish that a class action is superior to all reasonably available means of determining the entitlement of the class members, and that the questions of fact or law common to the class members predominate over any questions affecting only individual class members. To date, Ontario is the only Canadian province to introduce such amendments to its class proceeding legislation.

A frequent issue that is raised in this context in competition litigation is the role of public enforcement. Judges have found class actions preferable despite the Commissioner’s role in enforcing violations.[37] However, this requirement can be difficult in class actions alleging false or misleading representations. In such claims, individual issues of reliance are often raised and can make it challenging to prove harm on a class-wide basis.[38]

Adequate representative plaintiff

The plaintiff must prove three elements under this requirement. The plaintiff must have a viable claim against the defendant; the claim must be shared by the class; and the plaintiff must present a proposal for how the common issues and individual issues will be resolved.[39] In practice, inadequacy on any of these issues is not determinative. If an inadequacy is found, the court will typically adjourn the certification motion to allow the plaintiff time to find a substitute representative plaintiff or to retain new counsel.

Proving damages

When calculating damages, the traditional approach is to assess the difference between the alleged cartel prices and what prices would have been but-for the overcharge. Once all other issues of fact and law have been decided other than the assessment of damages, class action legislation provides that the court may determine the amount of monetary damage caused by the wrongdoing on an aggregate (global) basis, without proof of the specific amount of loss by each class member. The defendant would pay the aggregate amount and the award would subsequently be divided among class members. However, in order for individual class members to participate in an award of damages for a harm-based cause of action, each class member has to prove that they actually suffered some loss.[40]

To date, there has been no common issues trial in a price-fixing case in Canada, so the question of whether, and if so how, indirect and umbrella purchasers will be able to prove that they were harmed by the alleged conduct remains to be determined.

Multi-jurisdictional proceedings and carriage motions

Canadian courts are willing to certify national classes. However, Canada does not have any formal, national system to control multi-jurisdictional class actions. Consequently, competition class actions involving the same allegations and the same defendants are often commenced in multiple provinces, often in Ontario, British Columbia and Quebec.

Notwithstanding the prospect of a multiplicity of proceedings across provinces, plaintiff firms often reach agreements or form consortiums to prosecute these claims. Where multiple proceedings are being prosecuted by different firms across provinces, defendants may seek to stay duplicative proceedings.

The Canadian Bar Association has developed a judicial protocol for the management of multi-jurisdictional class actions in Canada that has been adopted by some provincial courts. The protocol provides a guide for addressing jurisdictional issues but does not mandate outcomes. These issues are dealt with informally by counsel and through conversations with the court. Some provinces have also codified an approach to dealing with multi-jurisdictional class actions in recent years, including Alberta, British Columbia and Saskatchewan. In Ontario, the amendments to the Class Proceedings Act also introduce new provisions to enable judges to more effectively manage parallel and overlapping multi-jurisdictional class proceedings, which, once they come into force, will harmonise Ontario’s class actions regime with those provinces. The amended legislation includes a requirement that judges consider whether to refuse certification on the basis that it would be preferable for all, or some, class members’ claims to be resolved in a multi-jurisdictional class proceeding commenced outside of Ontario. The court will be able to stay an Ontario proceeding, based on this factor, prior to the certification hearing on a motion by either a party or class member.

Where multiple plaintiff firms commence duplicative class proceedings in the same province and cannot reach agreement, carriage of the action is decided on a contested carriage motion. The test on such motion is what resolution is in the best interests of all putative class members while at the same time fair to the defendants.[41]

Notice

Some jurisdictions in Canada have ‘opt-in’ regimes while others have ‘opt-out’ regimes. The vast majority of jurisdictions have opt-out regimes. In an opt-out regime, a court order or settlement automatically applies to all members except those who opt-out. In an opt-in regime, individuals are not automatically included in the class and must take active steps to participate.

Costs

Typically in Canada the unsuccessful party pays the successful party’s costs. The traditional model has been modified by some class action legislation in Canada for certification motions. In British Columbia, Manitoba, and Newfoundland and Labrador, the court will not award costs on a certification motion except in narrow circumstances such as vexatious, frivolous or abusive conduct. In Ontario, Alberta, Saskatchewan, New Brunswick and Nova Scotia, costs can be awarded on these motions. Overall, a practice of no costs is developing.

Settlement

All competition class actions to date have settled before disposition at trial. Unlike other civil proceedings, the court must approve all class action settlements. To grant approval of a class action settlement, the court must find that the settlement is fair, reasonable and in the best interests of all class members. In determining whether to approve a class action settlement, the court will consider factors such as:

  • the likelihood of recovery or success if the case were litigated;
  • the amount and nature of discovery or investigation;
  • the terms and conditions of the settlement;
  • the recommendation and experience of counsel;
  • the future expense and likely duration of litigation;
  • the recommendations of neutral parties or experts;
  • the number and nature of objections from class members;
  • the presence of good-faith bargaining; and
  • the absence of collusion.[42]

Settlement distribution is the responsibility of plaintiff counsel who must decide how to distribute between direct and indirect purchasers and obtain the court’s approval on the protocol. The same protocol exists for awards and settlements in that the court may order direct payment or that it be paid into court.

Private rights of action to Canada’s Competition Tribunal

Overview

A private person may seek to bring a private right of action before the Tribunal against another private person. This private right of action is limited to five reviewable matters: refusal to deal (Section 75), price maintenance (Section 76), exclusive dealing (Section 77), tied selling (Section 77), and market restriction (Section 77).[43] This private right of action was introduced in 2002 to complement the Canadian Competition Bureau’s public enforcement and increase the deterrent effect of the Act.[44]

Leave requirement

The test for leave that the Tribunal will apply is twofold. With respect to reviewable practices under Section 75 (refusal to deal) and Section 77 (exclusive dealing, tied selling, and market restriction), the test is whether the application for leave is supported by sufficient credible evidence to give rise to a bona fide belief that: ‘the applicant is directly and substantially affected in its business by the relevant reviewable practice; and the practice in question could be subject to an order under the section of the Act at issue’ (i.e., under Section 75 or 77 of the Act).[45]

With respect to reviewable conduct under Section 76 (price maintenance), the test is whether the application for leave is supported by sufficient credible evidence to give rise to a bona fide belief that the applicant is directly affected by the price maintenance; and the practice in question could be subject to an order under Section 76 of the Act.[46]

The terms ‘directly’ and ‘substantially’ are given their ordinary meaning,[47] and the term ‘directly’ calls for a close nexus between the reviewable conduct and the impact on the business of the person seeking leave.[48] The term ‘substantial’ signifies an important or significant impact on a business.[49] However, the impact on the business need not necessarily reach the point where the business is unable to carry on business in order to meet the threshold of a substantial effect.[50] A substantial effect on a business, however, is measured in the context of the entire business.[51]

With respect to the second part of the test, all the elements of the reviewable conduct must be addressed.[52] The Competition Tribunal must be satisfied that each of the elements of the reviewable conduct could be met when the application is heard on the merits.[53]

Remedial jurisdiction and limitation period

The Tribunal only has jurisdiction to order a defendant to cease the relevant anticompetitive conduct. It cannot order monetary awards or damages. As a practical matter, this restriction has generally made this statutory option less attractive to litigants.

Further, a private person seeking leave must commence litigation no more than one year after the practice or conduct that is the subject of the application has ceased.[54]

Conclusion

The Supreme Court of Canada’s decision in Godfrey confirms that Canada remains fertile ground for private law competition class actions. The Godfrey decision, in conjunction with the Supreme Court of Canada’s earlier trilogy, confirms that indirect purchasers and umbrella purchasers have causes of action pursuant to the Competition Act and common law, and that the bar to certifying claims by these groups is not high.

Nevertheless, the law in this area is predicted to further develop since, to date, no competition class action has proceeded to trial in Canada on the merits. Consequently, there remain a number of issues that need to be canvassed. One fundamental issue that we anticipate will be litigated in the future is the suitability of economic methodologies that have been proposed to prove class-wide damages, particularly as these methodologies relate to indirect and umbrella purchasers in the antitrust context. Although most methodologies proposed to date have been able to pass the relatively low bar for certification, as the Supreme Court has itself pointed out, there may be complexities and challenges when applying these methodologies in practice.


Notes

1 Antonio Di Domenico, Vera Toppings and Zohaib Maladwala are partners at Fasken Martineau DuMoulin LLP. The authors gratefully acknowledge the assistance of Lily MacLeod, associate lawyer at the firm, and David Pivrnec, summer student at the firm.

2 Pioneer Corp v. Godfrey, 2019 SCC 42 (Godfrey).

3 An Act for the Prevention and Suppression of Combinations formed in Restraint of Trade, SC 1889, c 41 as amended by An Act to Amend the Combines Investigation Act and the Bank Act and to Repeal an Act to Amend the Combines Investigation Act, SC 1974-1975-1976, c 76.

4 Class Proceedings Act, RSBC 1996, c 50; Class Proceedings Act, 1992, SO 1992, c 6; Act respecting the Fonds d’aide aux actions collectives, CQLR c F-3 2011.

5 Axiom Plastics Inc v. EI DuPont Canada Co, 2013 ONSC 2675 at para. 42.

6 RSC 1985 c C-34 (Competition Act).

7 ibid., s 36(1).

8 ibid., s 45, 47, 52, 52.1, 54

9 See for example: Shah v. LG Chem Ltd, 2017 ONSC 2586; Godfrey v. Sony Corporation, 2017 BCCA 302; Fanshawe v. AU Optronics, 2016 ONCA 621; for marketing: Arora v. Whirpool Canada LP, 2013 ONCA 657; Kalra v. Mercedez Benz, 2017 ONSC 3795; Lin v. Airbnb, Inc, 2019 FC 1563.

10 Competition Act, s 105(5) & 74.12(4); Competition Tribunal Rules, SOR/2008-141, R 106(1).

11 Murphy v. Compagnie Amway Canada, 2015 FC 958 at paras 79 & 89; Magill v. Expedia Canada Corp, 2010 ONSC 5247 at paras 103–104, 108; Chadha v. Bayer Inc, 2001 CanLII 28369 (Ont Div Ct) at para. 19.

12 Fanshawe v. AU Optronics, 2016 ONCA 621; General Motors v. City National Leasing [1989] 1 SCR 641; Leonard v. Manufacturers Life Insurance Co, 2016 BCSC 534 at para. 267.

13 Ratych v. Bloomer, [1990] 1 SCR 940.

14 Ma v. Coyne, 2013 ABQB 426 at paras 40–43.

15 Forest Protection Ltd v. Bayer AG, [1998] NBJ No 484, 169 DLR (4th) 374 (Ont CA) at para. 21.

16 Godfrey, supra note 2 at para. 50.

17 Club Resorts Ltd v. Van Breda, 2012 SCC 17; R v. Libman, [1985] SCJ No 56 at para. 74; Vitapharm Canada Ltd v. F Hoffmann-LaRoche Ltd [2002] OJ No 298 (Ont Sup Ct) at para. 95, affirmed [2002] OJ No 1400 (Div Ct) (Vitapharm).

18 Sun-Rype Products Ltd v. Archer Daniels Midland Company, 2013 SCC 58 at para. 46 9 (Sun-Rype); Vitapharm at para. 58, affirmed [2002] OJ No 1400 (Div Ct).

19 See for example Fairhurst v. Anglo American PLC, 2011 BCSC 705 at para. 38, affirmed 2012 BCCA 257.

20 Haaretz.com v. Goldhar, 2018 SCC 28 at para. 46.

21 However, In July 2020, the Supreme Court of Canada unanimously decided that waiver of tort is not an independent cause of action in Canadian common law; to the extent that gain-based remedies are available at all for tortious conduct, this will only be in cases where all requisite elements of the underlying tort are proven. Accordingly, pleading waiver of tort will have limited utility in Canadian competition claims going forward. See Atlantic Lottery Corp Inc v. Babstock, 2020 SCC 19.

22 Godfrey, supra note 2 at paras 81, 85–89.

23 Western Canada Shopping Centres Inc v. Dutton, 2001 SCC 46 at paras 27–29.

24 Hollick v. Metropolitan Toronto (1999), 181 DLR (4th) 426, 32 CELR (NS) 1 (Ont CA) at para. 15.

25 Sun Rype at para. 61.

26 Pro-Sys Consultants Ltd v. Microsoft Corporation, 2013 SCC 57 at para. 63 (Microsoft).

27 Microsoft, Sun-Rype and Option Consommateurs v. Infineon Technologies, 2013 SCC 59.

28 Godfrey, supra note 2 at paras 57 and 64.

29 See Mancinelli v. Royal Bank of Canada, 2020 ONSC 1646 at paras 201-206, where Perell J. held that it would be ‘impossible’ for direct purchasers from non-defendants to determine whether their transactions were affected by the alleged conspiracy.

30 Sun Rype at para. 69.

31 Godfrey, supra note 2, at paras 104–105.

32 Western Canada Shopping Centres Inc v. Dutton, 2001 SCC 46 at para. 39; Microsoft Corporation at para. 108.

33 Godfrey, supra note 2 at para. 102.

34 AIC Limited v. Fisher, 2013 SCC 69 at para. 48.

35 AIC Limited v. Fisher, 2013 SCC 69 at paras 48–49.

36 Bill 161, An Act to enact the Legal Aid Services Act, 2019 and to make various amendments to other Acts dealing with the courts and other justice matters, 1st Sess, 42nd Leg, Ontario, 2020, schedule 4 cl 7(2) (assented to 8 July 2020) (Bill 161).

37 Pro-Sys at paras 138 and 141.

38 See for example: Murphy v. Compagnie Amway Canada, 2015 FC 958 at para. 96.

39 McCracken v. Canadian National Railway, 2012 ONCA 445 at para. 146.

40 Godfrey, supra note 2 at para. 118.

41 Smith v. Sino Forest Corp, 2012 ONSC 24 at paras 19–23.

42 Jeffery v. Nortei Networks Corp, 2007 BCSC 69 at para. 18.

43 Competition Act, s 103.1(1).

44 Bill C-23, An Act to amend the Competition Act and the Competition Tribunal Act, 1st Sess, 37th Parl, 2002 (royal assent 4 June 2002), SC 2002, c 16; Canada, Competition Bureau, Information Bulletin on Private Access to the Competition Tribunal (April 2005), online: www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/01392.html.

45 Competition Act, s 103.1(7); National Capital News Canada v. Milliken, 2002 CACT 41, 2002 Comp Trib 41 at para. 14; Barcode Systems Inc v. Symbol Technologies Canada ULC, 2004 CACT 1, 2004 Comp Trib 1 at para. 11, affirmed 2004 FCA 339 at para. 16; Brandon Gray Internet Services Inc v. Canadian Internet Registration Authority, 2011 CACT 1, 2011 Comp Trib 1 at para. 11.

46 Competition Act, s 103.1(7.1); Audatex Canada, ULC v. CarProof Corp 2015 CACT 28 at para. 42; Stargrove Entertainment Inc v. Universal Music Publishing Group Canada 2015 CACT 26 at paras 19-21; Safa Enterprises Inc v. Imperial Tobacco Co, 2013 CACT 19 at para. 15.

47 Audatex Canada, ULC v. CarProof Corp 2015 CACT 28 at para. 45.

48 Canadian Standard Travel Agent Registry v. International Air Transport Association, 2008 Comp Trib 14 at paras 9-10.

49 Canada (Director of Investigation and Research) v. Chrysler Canada Ltd (1989), 27 CPR (3d) 1 (Comp Trib), aff’d (1991), 38 CPR (3d) 25 (FCA) at para. 64; Nadeau Poultry Farm v. Groupe Westco, 2009 Comp Trib 6 at para. 131.

50 Nadeau Poultry Farm v. Groupe Westco, 2009 Comp Trib 6 at para. 131; Sears Canada Inc v. Parfums Christian Dior Canada Inc and Parfums Givenchy Canada Ltd, 2007 Comp Trib 6 at para. 31.

51 Broadview Pharmacy v. Pfizer Canada Inc, 2004 Comp Trib 23 at para. 8.

52 Barcode Systems Inc v. Symbol Technologies Canada ULC, 2004 CACT 1 at para. 18; Audatex Canada, ULC v. CarProof Corp 2015 CACT 28 at para. 46.

53 B-Filer Inc v. The Bank of Nova Scotia, 2005 Comp Trib 38 at para. 53; Audatex Canada, ULC v. CarProof Corp, 2015 CACT 28 at para. 46.

54 Competition Act, s 103.1(8).

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