Ontario Civil

Civil Practice and Procedure

Class and representative proceedings

Representative or class proceedings under class proceedings legislation

Class plaintiffs permitted to plead unlawful means conspiracy claim

Plaintiffs brought competition law class action on behalf of direct and indirect purchasers in two distribution channels in marketplace for rechargeable lithium ion batteries. Motion judge granted plaintiffs’ motion to certify class action. Plaintiffs satisfied cause of action criterion only for statutory cause of action under ss. 36 and 45 of Competition Act. Judge did not certify claim for umbrella purchasers because it was plain and obvious that umbrella purchasers did not have reasonable cause of action. Judge did not certify claims for unlawful means conspiracy and unjust enrichment because they failed to satisfy cause of action criterion and had been precluded by statutory cause of action. Plaintiffs, with leave, appealed denial of certification of unlawful means conspiracy claim and umbrella purchaser claims. Appeal allowed in part. Judge erred in denying certification of unlawful means conspiracy claim. Court of Appeal had permitted amendment to plead unlawful means conspiracy in similar case and on principle of stare decisis, this court was bound to follow that decision. Judge did not err in denying certification of umbrella purchaser claims. Four reasons advanced by defendants did not provide proper basis to conclude that umbrella purchasers did not have reasonable cause of action. Judge was right to conclude that allowing claims by umbrella purchasers would expose defendants to indeterminate liability. Claim of umbrella purchasers did not satisfy criterion under s. 5(1)(a) of Class Proceedings Act. Plaintiffs failed to plead requisite elements of claim that could be advanced for umbrella purchasers. No common issues were proposed respecting claims of umbrella purchasers, nor was there proposed representative plaintiff for umbrella purchasers.

Shah v. LG Chem, Ltd. (2017), 2017 CarswellOnt 6145, 2017 ONSC 2586, Kiteley J., Nordheimer J., and LeMay J. (Ont. Div. Ct.); reversed (2015), 2015 CarswellOnt 15099, 2015 ONSC 6148, Perell J. (Ont. S.C.J.).

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