Antitrust Class Actions: The Supreme Court Of Canada Grants Leave To Consider The Application Of Illinois Brick In Canada

In a decision released earlier this morning, the Supreme Court of Canada granted leave to appeal from the B.C. Court of Appeal's certification decisions in the parallel antitrust class actions in Sun-Rype1 and Microsoft.2 The Supreme Court's decision will have significant implications for antitrust policy and class certification in Canada, since this is the first time in two decades that the Supreme Court has agreed to hear an appeal from a private antitrust enforcement case. In granting leave, the Supreme Court has also strongly signaled that it will consider whether the rule of Illinois Brick3 should be adopted in Canada.

In a ruling over twenty years ago in response to a federal constitutional challenge, the Supreme Court upheld the private right of action for damages that are contained in the Competition Act.4 Since that time, private actions have become a permanent feature of the antitrust enforcement landscape in Canada. Indeed, following the gradual adoption of class proceedings legislation across the provinces in the 1990s, antitrust class actions have become commonplace in Canada. Currently, there are dozens of antitrust class actions pending before courts across Canada that seek relief on behalf of direct and/or indirect purchasers for damages caused by horizontal and/or vertical anti-competitive conduct. In many instances, these cases have been brought in conjunction with parallel proceedings in the U.S., and plaintiffs have sought to recover damages for consumers based on domestic and foreign anti-competitive conduct. And over the past twenty years, there have been a number of significant antitrust settlements that have provided for substantial compensation for class members.

In contested cases, the jurisprudence is still evolving. While the applicable standard for certification in antitrust cases remains very contested, there have been a number of recent decisions where the courts in Ontario, Quebec and B.C. have certified consolidated direct and indirect classes.5 Given the uncertainty in the jurisprudence, a number of litigants have sought the Supreme Court's intervention to address the applicable evidentiary test for certification, the application of restitutionary theories to a pre-existing private statutory remedy, and the significant conflict issues that are raised vis-à-vis direct and indirect purchasers. However, to date, the Supreme Court has declined to intervene in these cases.6

Nonetheless, in the past number of...