34 | LEXPERT • December 2014 | www.lexpert.ca
ANTITRUST CLASS ACTIONS
IN OUR CONTRIBUTION to
last year's edition of this publication we advised on
the growing phenomenon of international law-based tort claims by foreign plaintiffs
directed at Canadian companies, primarily those engaged in extractive industries operat-
ing abroad (see: "International Human Rights-Based Torts: A New Species of Litigation
Risk for Canadian Companies Operating Abroad," 2013 Lexpert® Guide to the Leading
US/Canada Cross-border Litigation Lawyers in Canada). Canadian judicial receptivity
to "global" litigation has also been given a substantial boost in the antitrust field, the
topic we specifically address here. This receptivity, which appears to be replicating itself
in Canadian courts more broadly, parallels substantial retrenchment by the US Supreme
Court in comparable cases, notably in the context of alleged violations of securities law.
See and compare: Hannah L. Buxbaum; "Remedies for Foreign Investors under U.S.
Federal Securities Law," 75 Law of Contemp. Prob. 161 (2012); Tanya Monestier, "Is
Canada the New Shangri-La of Global Securities Class Actions?" 32 Nw. J. Int'l L. &
Bus. 305 (2012); Abdula v. Canadian Solar Inc. et al., 2012 ONCA 211 and Silver v.
Imax Corporation (2009), 86 C.P.C. (6th) 273 (Ont. S.C.J.), aff 'd 2014 ONCA 90, leave
to appeal to SCC granted, 35811 (7 August 2014); Morrison v. National Australia Bank
Ltd., 130 S. Ct. 2869 (U.S. Sup. Ct., 2010).
Last fall, the Supreme Court of Canada released a trilogy of class-action certifica-
tion decisions: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 ("Pro-
Sys"); Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58
("Sun-Rype"); and Infineon Technologies AG v. Option consommateurs, 2013 SCC 59
("Infineon") ("the Pro-Sys Trilogy") that has opened the door for Canadian consumers
of imported goods into Canada or product components manufactured abroad to bring
class actions as indirect purchasers for damages based on violations of Canada's com-
ANOTHER SEA CHANGE
FOR GLOBAL LITIGATION
IN CANADIAN COURTS:
INDIRECT PURCHASERS RECEIVE
GREEN LIGHT FOR ANTITRUST
CLASS ACTIONS FROM THE
SUPREME COURT OF CANADA
Class-action certifi cation decisions have opened
the door for Canadian consumers of imported
goods into Canada or product components
manufactured abroad to bring class actions
based on Canada's competition laws
BY H. SCOTT FAIRLEY, NIKIFOROS IATROU AND
BRONWYN ROE, WEIRFOULDS LLP
