The answer to Miss Parker’s question, for those in the midst of a cartel investigation, is, almost certainly, a follow-on class action claim. In this volume of Cartel Capers we aim to give a rough and ready overview of the class action system for cartel cases in Canada. A book could be written on this subject – some have been – so these are merely the highest of lights.
The first point to note is that what used to be called follow-on class actions (that is, follow-on after a criminal conviction) is now a misnomer. Like in the US, these are now parallel or even precursor class actions. The merest hint of a cartel investigation results in the filing of class action applications.
Canadian class actions are similar to those in the US in many respects. Whether it is auto parts, computer screens or memory chips, most international price fixing cases have their parallel Canadian class actions. As well, domestic cartels – such as in retail gasoline or chocolate – also give rise to specific Canadian class actions. Since most readers will be familiar with the US system, the most effective way to provide quick advice on the Canadian system may be to note some of the differences. In no particular order, the principal differences include the following:
- The Supreme Court of Canada recently confirmed that indirect purchaser actions are permitted. This is particularly important in Canada, given that many products only come to Canada indirectly – often as components in end-use products. The Canadian courts are instructed to seek to avoid double recovery – given the fact that these same products may have been the subject of litigation abroad – but how this will be achieved is uncertain.
- Certification in Canada is probably, at least right now, somewhat easier than it is in the US. The standard established by the Supreme Court of Canada in Microsoft is:
“the expert methodology must be sufficiently credible or plausible to establish some basis in fact for the commonality requirement. This means that the methodology must offer a realistic prospect of establishing loss on a class-wide basis…. The methodology cannot be purely theoretical or hypothetical, but must be grounded in the facts of the particular case in question. There must be some evidence of the availability of the data to which the methodology is to be applied.”