The Supreme Court of Canada will hear the appeal of the British Columbia Court of Appeal's decision in Godfrey v. Sony Corporation et al., which affirmed the certification of a class action involving allegations of price fixing in the optical disk drives industry.
The decision on appeal raises several issues that have been at the forefront of contested certification decisions in competition class actions, such as:
- whether an alleged breach of the criminal conspiracy provision in section 45 of the Competition Act can serve as the unlawful act required to prove certain tort claims;
- whether so-called umbrella purchasers (i.e., purchasers of the allegedly cartelized product who purchase from non-defendants) have standing to sue for damages in price fixing class actions;
- whether the limitations period for the statutory right of action for damages under the Competition Act is subject to the discoverability principle or runs independent of actual or constructive knowledge by plaintiffs of the alleged anticompetitive conduct; whether the fraudulent concealment rule, which has the effect of suspending limitation periods, applies to Competition Act claims; and whether limitations defenses may be properly raised at the certification stage; and
- the legal threshold for certifying as a common issue in a price fixing class action whether the proposed class members suffered harm from the alleged misconduct.
The Supreme Court appeal will be closely watched by the competition and class actions bar and litigants nationwide as the issues it raises have recently been heavily litigated in the lower courts (in some cases with contradictory results in different provinces).
It marks the first opportunity the Court has taken to hear a competition law class action case involving certification issues in the common law provinces since issuing a landmark trilogy of decisions in 2013.