Canada: Class actions – litigation, policy and latest developments

The Canadian competition class actions practice is a complex and evolving area. This overview first introduces the basic structure of Canadian class actions, then discusses specific claims targeting anticompetitive behaviour, and concludes by analysing how these actions are contested and settled.

Introduction to class actions

Class actions and jurisdiction

While competition and antitrust law is a matter of federal jurisdiction in Canada, procedural rules related to class actions vary by jurisdiction. The Federal Court and the provincial superior courts^[1] each have slightly different procedural rules regarding class proceedings. Quebec, a civil law jurisdiction nestled alongside Canada’s otherwise common law jurisdictions, diverges from the other provinces.^[2]

One consequence of the multitude of jurisdictions in which one can bring a claim is the possibility for forum shopping. Some jurisdictions are more plaintiff-friendly. The Federal Court and the Supreme Court of British Columbia, for instance, are both low-cost jurisdictions. Ontario, a more defence-friendly jurisdiction, recently updated its Class Proceedings Act to include mandatory dismissals for delay and widen the availability of dispositive precertification motions.^[3]

That said, Canadian courts are generally plaintiff-friendly up to and including the certification stage. In general, class proceedings are brought as ‘opt-out’ actions, with almost all jurisdictions allowing opt-out claims to apply to out-of-province residents.^[4] Further, third-party litigation funding is permitted, however such agreements require approval by the court.^[5]

The structure of class actions

Class actions in Canada proceed in two stages. The first stage is certification,^[6] and the second stage is a trial to determine the outcome with respect to the common issues identified during certification.^[7] There has yet to be a competition class action common issues trial in Canada. Settlement post-certification is ubiquitous. Accordingly, certification is the primary battleground in competition law class proceedings.

The main requirements for certification are set out in the class actions legislation of each jurisdiction. In a nutshell, all require a degree of commonality between the issues of the class members to be advanced by an appropriate class representative (the representative plaintiff). Ontario’s regime is illustrative, requiring a representative plaintiff on a certification motion to establish that:

• the pleadings disclose a cause of action;
• there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;
• the claims or defences of the class members raise common issues;
• a class proceeding would be the preferable procedure for the resolution of the common issues; and
• there is a representative plaintiff or defendant who: would fairly and adequately represent the interests of the class; has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding; and does not have on the common issues for the class an interest in conflict with the interests of other class members.^[8]

Plaintiffs are responsible for adducing evidence to demonstrate that these requirements are met. The standard of proof on a certification motion is ‘not onerous’, merely requiring ‘some basis in fact’.^[9] The defendants are permitted to respond with their own evidence to rebut that of the plaintiffs, should they so desire.^[10] Of these criteria, perhaps the most variable between jurisdictions is the ‘representative plaintiff’ requirement that can present a more meaningful hurdle to certification in Ontario.^[11]

Introduction to competition class actions

Section 36 class actions

Section 36 of the Competition Act gives ‘any person’ a private right of action to recoup damage suffered as a result of conduct either contrary to Part VI of the Competition Act (criminal and anticompetitive conduct) or contrary to an order by the Competition Tribunal.^[12] While the Competition Tribunal is the administrative adjudicative body that acts as a court of first instance for enforcement of most provisions under the Competition Act, it does not have jurisdiction over class actions. This section focuses on actions parasitic on criminal liability under Part VI.

The private rights of action granted by section 36 could be (and sometimes are) pursued individually, but often they are pursued by way of class actions. The underlying violations that typically give rise to section 36 claims are:

• section 45 (criminal conspiracies), prohibiting conspiracies and agreements or arrangements between competitors involving several prescribed forms of conduct, including price fixing, allocating markets or manipulating supply;
• section 46 (foreign directives), prohibiting a Canadian subsidiary from participating in a conspiracy at the direction of their controlling foreign parent;
• section 47 (bid rigging), prohibiting bid rigging and other agreements that manipulate the outcomes of tendering processes; and
• section 52 (deceptive marketing), prohibiting false or misleading representations made to promote a product or service.^[13]

There is no requirement for a finding by the Competition Tribunal that an offence has been committed to launch a class action, nor is there any requirement that the Competition Bureau (Canada’s competition enforcement agency) complete an investigation before such an action is commenced. That said, section 36(2) of the Competition Act does provide that prior convictions under Part VI will trigger a rebuttable presumption that the conduct has occurred.^[14] In the absence of such a finding, however, the normal burden of proof would apply.^[15]

Historically, price fixing and bid rigging were the bread and butter of competition class actions. In recent years, however, deceptive marketing claims have become more common.

Associated common law claims

The subject matter of Part VI offences can overlap with that of common law claims in tort. For example, unlawful means conspiracies – where two parties agree to and subsequently inflict harm on a third by ‘unlawful means’^[16] – naturally overlap with section 45 conspiracies. As the Supreme Court of Canada recently reaffirmed, there is no bar to bringing these common law claims alongside a section 36 claim.^[17] Common law causes of action expand the menu of remedies a plaintiff can request. Section 36(1) expressly limits damages to ‘an amount equal to the loss or damage’ plus the costs of investigating the matter.^[18] Tort claims, however, provide for a broader array of remedies, including punitive damages or recourse to equitable doctrines.

Who can sue?

A subject of continuing controversy in competition class actions practice concerns exactly who can bring these claims. Section 36 allows anyone who has ‘suffered loss or damage’ to sue to collect those damages. Recent jurisprudence has recognised that this wording extends to cover both ‘indirect purchasers’ and ‘umbrella purchasers’.

An indirect purchaser is one who suffers damage by buying the overcharged product indirectly from another purchaser who bought the product (for example, a person who buys a car with a part in it that was subject to price fixing). In Pro‑Sys Consultants Ltd v Microsoft Corporation, the Supreme Court of Canada confirmed that indirect purchasers have a cause of action against the party ultimately responsible for the Part VI conduct under section 36, notwithstanding the difficulties associated with determining damages in such cases.^[19]

Umbrella purchasers are yet another degree removed and their claim to damages are even more abstract. Umbrella purchasers allegedly suffer loss by purchasing products from sellers who, while not ‘in on’ the Part VI conduct, nevertheless increased prices because of the distortionary effects of Part VI conduct on the market as a whole. In Pioneer Corp v Godfrey, the Supreme Court of Canada confirmed that these purchasers do have a cause of action under section 36, though the court noted that demonstrating that such harm actually arose represents a ‘significant burden’ for plaintiffs to bear.^[20]

In Quebec, consumer associations have standing to sue.^[21] In all other jurisdictions except Ontario, the court can appoint a non-member of the class to act as a representative plaintiff to avoid a substantial injustice.^[22]

Defeating competition class actions

No section 36 class action has ever completed a common issues trial in Canada. So far, the major battlegrounds for Canadian competition class actions have been precertification and certification motions. Courts are mindful in both instances that the proceedings are at an early stage and are wary of disposing of the plaintiffs’ litigation prematurely.

Precertification motions

Courts throughout Canada can hear a dispositive motion before certification or can choose to hear it concurrently with a certification motion. Some jurisdictions, like Ontario, have even begun to encourage such motions by statute.^[23] Two common dispositive precertification motions are motions to strike and jurisdiction motions.

On a motion to strike, the court may dismiss a claim if (assuming all facts and allegations in the pleadings are true) the claim has ‘no reasonable prospect of success’.^[24] Evidence is not admissible on a motion to strike. On a jurisdiction motion, affidavit evidence is admissible to establish whether the claim is appropriately connected to the jurisdiction.^[25] Courts have generally taken an expansive approach to jurisdiction in conspiracy class actions, allowing claims brought against foreign defendants having no presence in Canada and little (to no) direct connection to Canada.^[26]

Certification

Defendants can also defeat a class action by challenging certification. As detailed above, a proposed class must meet all the requirements of the relevant jurisdiction’s class action legislation. The various provincial and federal class action statutes have similar requirements for certification. Three commonly litigated issues are: whether the plaintiffs have shown a viable cause of action; if there exists some basis in fact to support their alleged common issues;^[27] and whether a class action is the preferable procedure.^[28]

As mentioned, a plaintiff class must show a viable cause of action, such that it is not ‘plain and obvious’ that the cause of action cannot succeed.^[29] The pleadings must disclose both the elements of section 36 and the underlying criminal provision.^[30]Jensen v Samsung Electronics provides a recent example of defective pleadings, in which the plaintiffs did not plead the presence of an ‘agreement’ (a key element of the section 45 offence) and instead pleaded conscious parallelism merely indicative of a ‘competitive industry at work, where the competitors follow and are aware of what is happening in the market’.^[31]

In the context of competition class actions in particular, a key evidentiary battleground with respect to demonstrating common issues is whether the plaintiffs have provided ‘some basis in fact’ to demonstrate that ‘loss or damage’ has occurred to the plaintiffs ‘as a result of’ the breach of the Competition Act, as required by section 36.^[32] This often requires expert economic evidence detailing how the class members are harmed, and where the harm is remote from the impugned conduct, represents a ‘significant burden’ for plaintiffs to bear.^[33]

Finally, defendants can argue that class proceeding is not the preferable procedure for determination of the common issues. Usually, this will be the case when individual claims predominate over common ones, or if a class proceeding will not serve the goals of a class action.^[34]

Appeal routes

Appeal routes for certification motions vary with jurisdiction. Though a route to appeal is usually available, it sometimes requires leave. Ontario, for example, provides a right to appeal for both parties.^[35] In contrast, Manitoba and Saskatchewan both require leave.^[36] In Quebec, a judgment authorising a class action requires leave to appeal. A judgment denying authorisation may be appealed as of right by the applicant or, with leave, by a member of the class on whose behalf the application for authorisation was filed.^[37]

Settling competition class actions

It is commonplace in Canada to settle class actions either before or after certification, and long before they proceed to common issues trials. Certification teases out the plaintiffs’ theory of liability and damages, allowing the parties to determine key strengths and weaknesses of the class action and hone in on the likelihood of success at trial, reasonable estimates of damages and associated litigation costs. Early settlements eliminate legal risks such as a defendant’s inability to pay, provide some immediate benefits in the form of recovery to the class and result in fee awards to class counsel enabling them to continue to fund the litigation or provide a return on their investment in the case.

Broadly speaking, the steps involved in achieving a binding resolution of a class action via settlement can be divided into three parts.

Step 1: negotiating and reaching a settlement

In exchange for a full and final release from the class action, the parties must first determine the quantum of settlement. They consider such questions as:

• How will payments already made as part of other foreign settlements for related claims get dealt with in the Canadian settlement?
• How will settlement funds be allocated or distributed among claims of direct and indirect purchasers in the class?
• What provision will be made in the settlement agreement for the existence or prospect of opt-outs or unclaimed amounts in the settlement pools?

With respect to the agreement ultimately reached, defence counsel will want to pay special attention to the following provisions.

• Bar order clauses: in class actions involving multiple defendants, there are frequently partial settlements with some, but not all, defendants. In circumstances where there are potential claims of contribution, indemnity, restitutionary awards, disgorgement of profits or other similar claims, the settling parties will include a ‘bar order’ to prevent the plaintiffs and non-settling defendants from continuing such claims as against the settling defendants.
• Cooperation clauses: defendants should be mindful of cooperation requests of class counsel that can include requests for witness statements and documentary production. Limits can be placed on the use of documents to ensure data security and satisfy disclosure concerns.

Step 2: obtaining court approvals from all the courts in which cases have been commenced

All class action settlements are subject to court approval. The plaintiff’s counsel will bring a motion to approve the settlement agreement, along with approval of any public notice requirements regarding settlement and dissemination plans, and separately seek approval of class counsel’s fees to date related to any contingency fee or third-party funding agreement.^[38] The basic test for court approval is that the court must find that in all circumstances the settlement is fair, reasonable and in the best interests of those affected by it.^[39]

Step 3: implementing a settlement claims process and distributing the funds to class members

Class counsel typically retain the services of a third-party claims administrator to oversee and report on the court approved claims process. Canada does not recognise other forms of collective settlement.^[40] To the extent parties wish to settle individual actions on an omnibus basis, the parties are free to do so absent court oversight.

Conclusion

Canadian competition class actions are an intricate practice area. Their exact contours vary based on jurisdiction and the specific anticompetitive behaviour at issue. Moreover, these claims are continually evolving. Canadian courts have very recently shown a willingness to depart from American jurisprudence in recognising the claims of indirect and umbrella purchasers. And there remain more frontiers to explore, for example, when a Canadian competition class proceeding finally goes to a common issues trial.

Notes

^[1] Prince Edward Island does not have class actions legislation, though the Supreme Court of Canada has held that all courts in Canada have the inherent jurisdiction to create and manage class proceedings even in the absence of legislation (Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46).

^[2] Salient differences will be noted where appropriate.

^[3] Class Proceedings Act 1992, SO 1992, c 6, sections 4(1) and 29(1).

^[4] Two exceptions are New Brunswick and Newfoundland and Labrador, which require non-residents to opt in to be included as class members.

^[5] See, for example, Fehr v Sun Life Assurance Company of Canada, 2012 ONSC 2715, paragraphs 160–163.

^[6] In Quebec, this stage is called ‘authorisation’, as the initial proceeding is filed on behalf of the whole class. It resembles the certification stage in common law provinces; however, there are fewer criteria that need to be met and the courts have adopted a more flexible approach in applying these criteria in Quebec (Civil Code of Québec, CQLR c CCQ-1991, article 575 and Marcotte v Longueuil (City), 2009 SCC 43).

^[7] This can also be viewed as a three-stage process with an ‘individual issues’ trial following the first two, though this final trial is no longer binding on the entire class, just the particular class member.

^[8] Class Proceedings Act 1992, SO 1992, c 6, section 5.

^[9]Hollick v Toronto (City), 2001 SCC 68, paragraphs 21 and 25. Applicants in Quebec have a lower threshold to overcome than in other provinces. They must demonstrate that they have an ‘arguable case’ in light of the alleged facts, taken as true, and the applicable law (Infineon Technologies AG v Option consommateurs, 2013 SCC 59, paragraph 134). The application for authorisation does not have to be supported by an affidavit and defendants must obtain leave to adduce evidence.

^[10]Hollick v Toronto (City), 2001 SCC 68, paragraph 22.

^[11] In Ontario, the representative plaintiff must have a claim against each co-defendant (Ragoonanan Estate v Imperial Tobacco Canada Ltd, 2000 CanLII 22719, paragraphs 52–56 (ONSC)). Other jurisdictions, like Quebec, have eschewed that requirement, allowing that a ‘cause of action against each defendant could be held by class members rather than by the representative plaintiff’, provided the representative plaintiff has a claim against one of the defendants (Bank of Montreal v Marcotte, 2014 SCC 55, paragraphs 33 and 47). Note that Ragoonanan remains good law in Ontario despite Marcotte (for further information, see, Vecchio Longo Consulting Services Inc v Aphria Inc, 2021 ONSC 5405, paragraph 177).

^[12] Competition Act, RSC 1985, c C-34, section 36.

^[13] Competition Act, RSC 1985, c C-34, section 45(1); Competition Act, RSC 1985, c C-34, section 46(1); Competition Act, RSC 1985, c C-34, section 47(1); Competition Act, RSC 1985, c C-34, section 52.

^[14] Competition Act, RSC 1985, c C-34, section 36(2).

^[15] That is, ‘some basis in fact’ with respect to certification (or an ‘arguable case’ in Quebec), and the ‘balance of probabilities’ at a common issues trial.

^[16] The ‘unlawful means’ element of this tort includes a breach of the conspiracy provisions of the Competition Act (Pioneer Corp v Godfrey, 2019 SCC 42, paragraphs 82–84).

^[17]Pioneer Corp v Godfrey, 2019 SCC 42, paragraph 88.

^[18] Competition Act, RSC 1985, c C-34, section 36(1).

^[19]Pro‑Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57, paragraph 60.

^[20]Pioneer Corp v Godfrey, 2019 SCC 42, paragraphs 77 and 88.

^[21] Civil Code of Québec, CQLR c CCQ-1991, article 571. This is also the case in Alberta, where non-profit corporations may act as representative plaintiffs in a class action (Class Proceedings Act, SA 2003, c C-16.5, section 2(6)).

^[22] See, for example, British Columbia’s regime: Class Proceedings Act, RSBC 1996, c 50, section 2(4).

^[23] See, for example, Ontario’s regime: Class Proceedings Act, 1992, SO 1992, c 6, section 4(1).

^[24]Mohr v National Hockey League, 2022 FCA 145.

^[25]Ewert v Höegh Autoliners AS, 2020 BCCA 181, paragraph 6. This is usually done through the factors established by the Supreme Court of Canada in Club Resorts Ltd v Van Breda, 2012 SCC 17, or a similar legislated standard.

^[26] See, for example, Ewert v Höegh Autoliners AS, 2020 BCCA 181, paragraph 76.

^[27] The commonality criterion in Quebec is more flexible than in the common law provinces. Quebec courts must not seek out common answers, but rather identical, similar or related questions of law or fact (Vivendi Canada Inc v Dell’Aniello, 2014 SCC 1, paragraphs 52–53).

^[28] Quebec courts do not need to consider whether a class proceeding is preferable to another form of proceeding to authorise a class action, but merely to show that joinder and representative proceedings with the mandate of class members are both impracticable.

^[29]Pro Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57, paragraph 99 (SCC).

^[30] Competition Act, RSC 1985, c C-34, sections 45, 47 and 52. For example, in section 45 on price-fixing class actions, the plaintiff must plead that the defendants: (i) conspired, agreed or arranged with a competitor to fix prices, allocate markets or control supply; and (ii) did so with subjective intent to enter into the agreement and knowledge of its terms. Likewise, in section 47 on bid-rigging offences, the plaintiff must plead that the defendants: (i) agreed or arranged to not submit a bid or tender, or agreed or arranged to submit a certain bid or tender; and (ii) did so intentionally. In section 52 on deceptive marketing offences, the plaintiff generally must plead that the defendants made a representation to the public that is false or misleading in a material respect for the purpose of promoting a business interest knowingly or recklessly.

^[31]Jensen v Samsung Electronics Co Ltd, 2021 FC 1185, paragraphs 69 and 147. It concerned allegations that the makers of certain semiconductor memory chips conspired through mutual awareness of one another’s pricing through public announcements. The Federal Court refused to certify the claim.

^[32] Competition Act, RSC 1985, c C-34, section 36(1).

^[33]Pioneer Corp v Godfrey, 2019 SCC 42, paragraphs 77 and 88.

^[34] See, for example, Kett v Mitsubishi Materials Corporation, 2020 BCSC 1879, paragraphs 180–182.

^[35] Class Proceedings Act, 1992, SO 1992, section 30(1).

^[36] The Class Proceedings Act, CCSM c. C130, section 36(4) (Manitoba); The Class Actions Act, SS 2001, c C-12.01, section 39(3).

^[37] Civil Code of Québec, CQLR c CCQ-1991, article 578.

^[38] The court will ask whether the fee request is fair and reasonable in light of the risk undertaken by class counsel and the manner in which class counsel conducted the proceeding, taking into account (among other things) the time spent, the complexity of the matters, the monetary value of the claims, the skill exhibited by counsel and the results achieved, and the client’s expectations as to fees. It is not uncommon for class counsel’s fees to be in the range of 20–30 per cent of the settlement funds (Corless v KPMG LLP, 2008 CarswellOnt 4708).

^[39] Canadian courts have considered the following list of non-exhaustive factors in coming to this determination: likelihood of recovery or likelihood of success at trial; amount and nature of discovery evidence available; settlement terms and conditions; recommendation and experience of counsel; future expense and likely duration of litigation; recommendation of neutral parties, if any; number of objectors and nature of objections; and the presence of good faith and absence of collusion. See, for example, Fantl v Transamerica Life Canada, 2009 CarswellOnt 4710.

^[40] In niche circumstances, the Competition Tribunal (not normally a party to a putative class action) has the power to make restitution orders for conduct similar to that under the class action. Under section 74(1)(d) of the Competition Act, the Competition Tribunal can order restitution for consumers subject to a civil claim of misleading advertising under section 74(1), a civil analogue of the conspiracy provisions found in section 45 (Competition Act, RSC 1985, c C-34, sections 45, 74(1) and 74(1)(d)).