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O'Sullivan, LSM, Terrence J. Lax O'Sullivan Lisus
Gottlieb LLP (416) 598-3556 tosullivan@counsel-toronto.com
Mr. O'Sullivan's litigation and arbitration practices focus on business
disputes, financial institution litigation, regulatory charges and defence
of directors' and officers' liability. He acts as a mediator, arbitrator
and is an ACTL and IATL Fellow.
O'Neill, Louis-Martin Davies Ward Phillips
& Vineberg LLP (514) 841-6547 lmoneill@dwpv.com
Mr. O'Neill specializes in high-stakes litigation and special situations. His
practice embraces a broad spectrum of M&A, securities, corporate/commer-
cial, competition and insolvency disputes, as well as white-collar investiga-
tions and defence work. He has been involved in virtually every recent major
M&A and securities litigations in Québec.
O'Connor, David F. Roy O'Connor LLP
(416) 350-2474 dfo@royoconnor.ca
Mr. O'Connor's practice focuses on commercial and class action litigation
(both defence and plaintiff). He is recognized by Benchmark as a star in
class actions and commercial litigation and was recognized as a finalist for
Class Action Litigator of the Year in 2015. He was also a nominated finalist for
the Top 25 Most Influential Lawyers in Canada in 2015 and 2016 (Canadian
Lawyer magazine).
Nuss, QC, AdE, Joseph R. Woods LLP
(514) 982-5010 jnuss@woods.qc.ca
A former Justice of the Quebec Court of Appeal, is now Senior Counsel at
Woods LLP. Concentrates his practice in the fields of domestic and interna-
tional arbitration and mediation. Is also a regular lecturer at conferences
on these subjects.
Nitikman, Joel A. Dentons Canada LLP
(604) 443-7115 joel.nitikman@dentons.com
Mr. Nitikman focuses on resolving tax disputes. He has extensive experience
in federal and provincial income tax and commodity tax litigation. He has
acted as counsel in numerous tax cases at all levels of court, both provin-
cially and federally. He has also settled many cases out of court at
the pre-assessment or Objection stage.
Nicholl, AdE, John I.S. Clyde & Co Canada LLP
(855) 607-4288 john.nicholl@clydeco.ca
Primarily an insurance lawyer whose litigation practice has focused, over the
last 36 years, on insurance and reinsurance coverage disputes, D&O, profes-
sional and product liability, and class action defence. Has extensive trial,
appellate and arbitration experience, in both English and French.
LEXPERT-RANKED LAWYERS
for a statutory right of private action for those
damaged by a breach of the legislation) but also on
civil conspiracy under the common law.
Arguably, the most important issue addressed
was whether "unconnected" or "umbrella
purchasers" can be included in a price-fixing
conspiracy case. ree of the four cases addressed
the issue: in both CRT and Air Cargo, the superior
court ruled that the claim against umbrella
purchasers could proceed to trial; and in Lithium-
Ion, the divisional court granted leave to appeal
from Justice Paul Perell's decision excluding
umbrella purchasers from the class.
Umbrella purchasers are consumers or
businesses who bought products from someone
other than the named defendants. "e theory
behind including umbrella purchasers is that
because the defendant conspirators controlled the
market, non-conspirators will follow their lead on
pricing," Visser explains.
e case for including purchasers, then, will
depend on whether there is expert evidence
showing that the defendants controlled more than
half the market and that their conduct impacted
market prices generally. But that's not usually a
problem for plaintiffs, Visser explains, because
most price-fixing cases involve defendants who
together have "two-thirds or more" of the market
share between then.
Still, given the huge stakes involved in price-
fixing cases, the inclusion of umbrella purchasers in
a class can ramp up risk materially for defendants.
"Even if the umbrella purchasers account for
only 10 or 20 per cent of sales on a global basis,
the increase in liability can be quite significant,"
says Paul Martin of Fasken Martineau DuMoulin
LLP in Toronto, who represented Asiana Airlines
in the air cargo case.
CRT, Air Cargo and Lithium-Ion bring the issue
to a head. "Umbrella cases have been included
in price-fixing class actions in the past, but the
propriety of doing so has not been argued until
fairly recently, when defendants began raising the
