In the News Detail
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The Renaissance of Competition Class Actions
SOURCE
Lexpert
AUTHOR
Julius Melnitzer
DATE
July 31, 2008
Sylvie Rodrigue and Michael Brown, partners in the Litigation Group, comment in Lexpert on the rise of competition class actions in Canada.
Excerpt
Competition class actions were never dead. It just seemed like it.After all, they hardly got off to an auspicious start. It took more than six years from the enactment of Ontario's Class Proceedings Act in 1993 before the Ontario Superior Court gave its first decision relating to such cases.
"I'm not sure there has been an increase in the number of competition class actions brought," says Michael Brown of Ogilvy Renault LLP, "but there has certainly been an increase in the number contested by defendants.".
In Markson [v. MBNA Canada Bank] and Cassano [v. Toronto-Dominion Bank], the Court of Appeal ruled that s.24 of Ontario's Class Proceedings Act was engaged where "potential" liability can be established on a class-wide basis but entitlement to monetary relief may depend on individual assessments. Section 24 permits the court to determine the aggregate or part of a defendant's liability and give judgment accordingly where these can be reasonably determined without proof of individual claims.
[2038724 Ontario Ltd v. Quizno's Canada Restaurant Corp.], in turn, may have allayed some of this uncertainty for defendants. But the ruling is under appeal to the Divisional Court.
"There's a uniform trend that's manifested collectively by [Harmegnies v.] Toyota [Canada], DRAM (Pro-Sys Consultants Ltd. v. Infineon Technologies AG et al), and Quizno's," says Sylvie Rodrigue of Ogilvy Renault LLP. "Courts are insisting that plaintiffs show actual damage in addition to alleging a fault or tort."
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