COMPETITION CLASS ACTIONS
TAKING
A PASS ON
'PASSING ON'
Several upcoming Supreme Court of Canada
decisions will have a major impact on the size
and number of competition class actions
launched in Canada
By Nick Rodrigo and Adam Fanaki; Davies Ward Phillips & Vineberg LLP
THE MOST ANTICIPATED decisions in the field of class-action law
in Canada today are the pending judgments of the Supreme Court of Canada in Samsung
Electronics Co., Ltd., et al. v. Option Consommateurs, et al. (SCC case number 34617, on
appeal from the Québec Court of Appeal), together with two cases on appeal from the
British Columbia Court of Appeal: Pro-Sys Consultants Ltd., et al. v. Microsoft Corporation, et
al., (SCC case number 34282) and Sun-Rype Products Ltd., et al. v. Archer Daniels Midland
Company, et al. (SCC case number 34283). (In the interests of full disclosure, it is worth
mentioning that Davies Ward Phillips & Vineberg LLP represented the Canadian Chamber
of Commerce as an intervenor in the appeal, although the views expressed here are solely
those of the authors.) These appeals were heard together by the Supreme Court on October
19, 2012, and judgment is expected to be rendered in the very near future.
WHAT'S THE PROBLEM?
The legal issue that is common to all these cases is the eligibility of so-called "indirect purchasers" to be included in the class of persons suing for reimbursement of an overcharge resulting
from anticompetitive behavior (typically, some form of price-fixing conspiracy). To get a sense
of the problem, take the facts in Samsung: that case involved an alleged conspiracy on the
part of manufacturers of computer memory chips to inflate the prices of these components,
which are incorporated into computers and servers and various other electronic devices that
are purchased and resold through the supply chain until ultimately ending up in the hands
of end users, including businesses and ordinary consumers. In Samsung, the class plaintiffs
alleged that the overcharge paid to the manufacturers of the memory chips resulted in end
users paying an inflated price for the electronic devices into which the memory chips were in-
36 | LEXPERT • December 2013 | www.lexpert.ca
