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w w w . C A N A D I A N L a w y e r m a g . c o m F E B R U A R Y 2 0 1 8 49 Low bar to certification The bar to certification is low, especially in Ontario and British Columbia, say Kolers and others. "We don't feel that the plaintiffs are necessarily meeting the evidentiary thresholds that they should be required to meet, in competition cases, for exam- ple," he says. "It sure would be nice to have a [multi-district litigation system] system, but [it] doesn't seem likely [that] we'll get one any time soon. What we're going to see is more of staying motions and procedural fights." BLG's Dixon calls it "a pendulum effect. . . . The certification procedure isn't intended to be a procedure on the merits, but [there] should be some basis in fact by the claim itself," he says. "The pendulum is swinging to a lower and lower threshold." Requirement to show harm Godfrey v. Sony Corporation involved an appeal from a B.C. Supreme Court decision allowing certification of a class action on behalf of both direct and indi- rect purchasers of optical disc drives. In the decision of the British Colum- bia Court of Appeal, handed down in August, the court decided on several certification matters for class actions that could have wide-ranging effects on competition class actions commenced in Canada. One finding was that there was no requirement to show harm to all members of a class, taking a broad interpretation of the Supreme Court of Canada's decision in 2013's class action trilogy holding that the commonality requirement is satisfied where the plain- tiffs present a plausible method to dem- onstrate that an overcharge reached the indirect purchaser level of the distribu- tion channel, not each individual with- in that level. There is an outstanding application for leave to appeal to the Supreme Court on some of the issues raised in the case, says Forbes. "But the debate is what did [then Supreme Court of Canada] Justice Roth- stein mean when he said in [Pro-Sys Consultants Ltd. v. Microsoft Corpora- tion] that the plaintiffs have to show they have a methodology that can prove damages on a class-wide basis?" asks Forbes. In a case where there are vari- ous levels of purchasers, both direct and indirect, as are often seen in competition and anti-trust cases, he says, "Do you have to show that harm is passed on to the indirect purchaser level of the class or does the plaintiff have to show some sort of methodology that the trial judge can use at trial [as to] who in this class was harmed and belongs in the class and who wasn't harmed and shouldn't belong to the class? What has to be shown at certification?" It's a "live legal issue," says Kolers, as part of the current conflict between British Columbia and Ontario law (B.C. has said that indirect purchasers' claims are valid, whereas Ontario's Superior Court has said they are not; the Ontario Court of Appeal has not ruled in its case yet). By purporting to make the conspirators liable for price hikes for everyone, it expands the impact of harm claimed in compensation, he says. Ѵ;bvm;bvĺ1-ņѴbঞ]-ঞomŊ1Ѵ )ub;m0;r;u|v ou;1om|;m|ķ0;;u-Ѵ; "l-u|ķro;u=Ѵ|ooѴv "r;ubououhruo71| LOOKING TO BUILD AN OPEN & SHUT CASE? ;||_;|ooѴvom;;7b|_;bvu-1ঞ1;7bvou ® Canada. Our new bঞ]-ঞom ş bvr|;!;voѴঞomo7Ѵ;1om|-bmv|_;-Ѵ-0Ѵ;ru-1ঞ1;mo|;vķ=oulvķ ru;1;7;m|v-m71_;1hѴbv|v|_-|bѴѴ_;Ѵro0bѴ7ou1-v;ķ=-v|;u-m7lou;;L1b;m|Ѵĺ ;bvu-1ঞ1;7bvou-m-7-bv|_;bm7v|uĽvѴ;-7bm]ru-1ঞ1;u;vou1;b|_1om|;m| 1u;-|;7-m7l-bm|-bm;70oubm|;um-Ѵ|;-lo=vr;1b-Ѵb;7Ѵ-;uv-m7_m7u;7vo= Ѵ;-7bm]ru-1ঞঞom;uv=uol|_;|orѴ-Culvbm-m-7-ĺ o-_;-7ķ|-h;|_;m;|v|;rĺ ;bvu-1ঞ1;7bvou ® -m-7- _;Ѵrvo-rrѴ|_;Ѵ- ntitled-3 1 2018-01-25 7:56 AM

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