Pioneer Corp. v. Godfrey

Pioneer Corp. v. Godfrey
Collection
Supreme Court Judgments
Date
2019-09-20
Neutral citation
2019 SCC 42
Report
[2019] 3 SCR 295
Case number
37809, 37810
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
British Columbia
Subjects
Civil procedure
Notes
Case in Brief
SCC Case Information: 37809, 37810
Decision Content
SUPREME COURT OF CANADA
Citation: Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295
Appeals Heard: December 11, 2018 Judgment Rendered: September 20, 2019 Dockets: 37809, 37810
Between:
Pioneer Corporation, Pioneer North America, Inc., Pioneer Electronics (USA) Inc., Pioneer High Fidelity Taiwan Co., Ltd. and Pioneer Electronics of Canada Inc. Appellants
and
Neil Godfrey Respondent
And Between:
Toshiba Corporation, Toshiba Samsung Storage Technology Corp., Toshiba Samsung Storage Technology Corp. Korea, Toshiba of Canada Ltd., Toshiba America Information Systems, Inc., Samsung Electronics Co., Ltd., Samsung Electronics Canada Inc., Samsung Electronics America, Inc., Koninklijke Philips Electronics N.V., Lite-On IT Corporation of Taiwan, Philips & Lite-On Digital Solutions Corporation, Philips & Lite-On Digital Solutions USA, Inc., Philips Electronics Ltd., Panasonic Corporation, Panasonic Corporation of North America, Panasonic Canada Inc., BENQ Corporation, BENQ America Corporation and BENQ Canada Corp. Appellants
and
Neil Godfrey Respondent
- and -
Option consommateurs, Consumers Council of Canada, Canadian Chamber of Commerce and Consumers’ Association of Canada Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 123)
Brown J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Rowe and Martin JJ. concurring)
Reasons Dissenting in Part: (paras. 124 to 239)
Côté J.
Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295
Pioneer Corporation,
Pioneer North America, Inc.,
Pioneer Electronics (USA) Inc.,
Pioneer High Fidelity Taiwan Co., Ltd. and
Pioneer Electronics of Canada Inc. Appellants
v.
Neil Godfrey Respondent
‑ and ‑
Toshiba Corporation,
Toshiba Samsung Storage Technology Corp.,
Toshiba Samsung Storage Technology Corp. Korea,
Toshiba of Canada Ltd.,
Toshiba America Information Systems, Inc.,
Samsung Electronics Co., Ltd.,
Samsung Electronics Canada Inc.,
Samsung Electronics America, Inc.,
Koninklijke Philips Electronics N.V.,
Lite‑On IT Corporation of Taiwan,
Philips & Lite‑On Digital Solutions Corporation,
Philips & Lite‑On Digital Solutions USA, Inc.,
Philips Electronics Ltd.,
Panasonic Corporation,
Panasonic Corporation of North America,
Panasonic Canada Inc.,
BENQ Corporation,
BENQ America Corporation and
BENQ Canada Corp. Appellants
v.
Neil Godfrey Respondent
and
Option consommateurs,
Consumers Council of Canada,
Canadian Chamber of Commerce and
Consumers’ Association of Canada Interveners
Indexed as: Pioneer Corp. v. Godfrey
2019 SCC 42
File Nos.: 37809, 37810.
2018: December 11; 2019: September 20.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for british columbia
Civil procedure — Class actions — Certification — Plaintiff alleging that defendants conspired to fix prices of optical disc drives and related products — Plaintiff’s action certified as class proceeding — Class membership including direct purchasers, indirect purchasers and umbrella purchasers — Whether umbrella purchasers have cause of action under Competition Act — Whether Competition Act bars plaintiff from bringing common law or equitable claims — Whether plaintiff’s proposed questions relating to loss suffered by class members meet standard for certification as common issues — Competition Act, R.S.C. 1985, c. C-34, s. 36(1) — Class Proceedings Act, R.S.B.C. 1996, c. 50, s. 4(1).
Limitation of actions — Competition Act setting out limitation period of two years from day on which conduct was engaged in — Action brought against some defendants more than two years after alleged conduct occurred — Whether action against those defendants barred by statutory limitation period — Whether discoverability rule or doctrine of fraudulent concealment applies to extend statutory limitation period — Competition Act, R.S.C. 1985, c. C-34, s. 36(4) .
The proposed representative plaintiff applied for certification of a class proceeding under the British Columbia Class Proceedings Act. The plaintiff alleges that the defendants, who manufacture Optical Disc Drives (“ODDs”) and ODD products, conspired to fix prices of ODDs and ODD products between 2004 and 2010 (“class period”). He advances various causes of action based on that alleged conduct. They include a cause of action under s. 36(1) (a) of the Competition Act , which allows for the recovery of damages or loss that resulted from conduct contrary to Part VI of the Competition Act , as well as common law and equitable claims. The plaintiff seeks to bring the proposed class proceeding on behalf of all British Columbia residents who purchased an ODD or an ODD product during the class period. The proposed class consists of direct purchasers, indirect purchasers, and umbrella purchasers, that is, purchasers whose ODD or ODD product was manufactured and supplied by a non‑defendant. Although the action against most of the defendants was filed within two years of the end of the class period, the action against a subset of the defendants (“Pioneer defendants”) was filed more than two years after the end of the class period.
The certification judge certified the action as a class proceeding, subject to certain exceptions and conditions. He was not satisfied that it was plain and obvious that the action against the Pioneer defendants was barred by the two‑year limitation period set out in s. 36(4) of the Competition Act . He also held that the umbrella purchasers had a cause of action against the defendants under s. 36(1) (a) of the Competition Act , that a breach of the Competition Act could represent the unlawfulness element of the various causes of action advanced by the plaintiff, thereby affirming the availability of those common law and equitable actions, and that the plaintiff’s proposed questions in relation to loss suffered by the class were certifiable as common questions. The Court of Appeal dismissed the appeals brought by the defendants.
Held (Côté J. dissenting in part): The appeals should be dismissed.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ.: It is not plain and obvious that the plaintiff’s claim against the Pioneer defendants will fail on the basis that it was commenced after the two‑year limitation period in s. 36(4) (a)(i) of the Competition Act because the discoverability rule applies to extend the limitation period. As for the inclusion of umbrella purchasers, the pleadings against all the defendants disclose a cause of action for them under s. 36(1) (a) of the Competition Act , thereby satisfying the conditions under s. 4(1)(a) of the Class Proceedings Act for certification. Also, as s. 36(1) of the Competition Act does not bar common law or equitable claims, it is not plain and obvious that the plaintiff’s other claims cannot succeed. Furthermore, the certification judge identified the correct standard to certify commonality of loss as a common issue and there is no basis to interfere with his certification of these loss‑related questions.
Where a limitation period is subject to the rule of discoverability, a cause of action will not accrue for the purposes of the running of the limitation period until the material facts on which the cause of action is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence. The discoverability rule is not a universally applicable rule of limitations, but a rule of construction to aid in the interpretation of statutory limitation periods. It can therefore be displaced by clear legislative language. In determining whether discoverability applies, substance, not form, is to prevail: even where the statute does not explicitly state that the limitation period runs from “the accrual of the cause of action”, discoverability applies if it is evident that the operation of a limitation period is conditioned upon accrual of a cause of action or knowledge of an injury. Discoverability will apply where the event triggering the limitation period is an element of the cause of action because, in such cases, the legislature has shown its intention that the limitation period be linked to the cause of action’s accrual.
The discoverability rule applies to extend the two‑year limitation period in s. 36(4) (a)(i) of the Competition Act , such that it begins to run only when the material facts on which the cause of action granted by s. 36(1) (a) of the Competition Act is based are discovered or ought to have been discovered by the exercise of reasonable diligence. The event triggering this particular limitation period is the occurrence of an element of the underlying cause of action — specifically, conduct contrary to Part VI of the Competition Act . Consideration of the rationales for limitation periods affirms the application of the discoverability rule to this provision.
Furthermore, it is not plain and obvious that the doctrine of fraudulent concealment could not delay the running of the limitation period. Fraudulent concealment is a form of equitable fraud that arises so as to delay the running of a limitation period when it would be, for any reason, unconscionable for the defendant to rely on the advantage gained by having concealed the existence of a cause of action. The inquiry is not into the relationship within which the conduct occurred, but into the unconscionability of the conduct itself. Its application is therefore not conditioned upon a special relationship between the parties.
Umbrella purchasers have a cause of action under s. 36(1) (a) of the Competition Act . Under the theory of umbrella pricing, the entire market for the subject product is affected because anti‑competitive cartel activity causes non‑cartel manufacturers to also raise their prices. The text of s. 36(1) (a), which provides a cause of action to “[a]ny person who has suffered loss or damage as a result of” conduct contrary to s. 45 of the Competition Act , supports the view that umbrella purchasers have a cause of action thereunder. Parliament’s use of the words “[a]ny person” empowers any claimant who can demonstrate that loss or damage was incurred as a result of a defendant’s conduct to bring a claim. Also, interpreting s. 36(1) (a) so as to permit umbrella purchaser actions furthers the purpose of the Competition Act set out in s. 1.1 , which is to “maintain and encourage competition in Canada” with a view to providing consumers with “competitive prices and product choices”. This interpretation also furthers two other objectives of the Competition Act : it furthers the objective of deterrence because it increases the potential liability falling upon those who engage in anti‑competitive behaviour, and it furthers the objective of compensation because it affords umbrella purchasers recourse to recover from loss arising from what is assumed to have been anti‑competitive conduct. Moreover, departmental and parliamentary statements fortify the view that Parliament intended that the cause of action in s. 36(1) (a) be broadly available to anyone who suffers a loss from anti‑competitive behaviour.
Recognizing that umbrella purchasers have a cause of action under s. 36(1) (a) does not risk exposing defendants to indeterminate liability. Firstly, liability of defendants is limited by the class period, and by the specific products whose prices are alleged to have been fixed. Also, in order for cartel members to profit from a conspiracy, the entire market price has to increase — the umbrella effect is therefore an intended consequence of the anti-competitive behaviour. Intended results are not indeterminate, but rather pre-determined. Secondly, as s. 36(1) (a) limits recovery to only those purchasers who can show that they suffered a loss or damage “as a result of” a defendant’s conspiratorial conduct, recovery is limited to claimants with a loss that is not too remote from the conduct and umbrella purchasers will have to demonstrate that they suffered such loss or damage. Thirdly, the elements of the wrongful conduct outlined in the text of s. 45(1) in force at the relevant time limit the reach of liability to those who, at a minimum, specifically intend to agree upon anti-competitive conduct.
Section 36(1) of the Competition Act does not bar common law or equitable claims, such as claims in civil conspiracy. Prior to the enactment of the cause of action contained in what is now s. 36(1) of the Competition Act , a breach of s. 45(1) of the Competition Act was, as it still is, able to satisfy the “unlawful means” element of the tort of civil conspiracy. The enactment of the statutory cause of action in s. 36(1) of the Competition Act did not oust common law and equitable actions by its express terms or by necessary implication. Section 36(1) is not duplicative of the tort of civil conspiracy, it does not provide a new and superior remedy, nor does it represent a comprehensive and exclusive code regarding claims for anti-competitive conspiratorial conduct. In addition, s. 62 of the Competition Act contemplates the subsistence of common law and equitable rights of action. It is therefore not plain and obvious that the plaintiff is precluded from bringing common law and equitable causes of action alongside his s. 36(1) (a) claim.
In order for loss-related questions to be certified as common issues, a plaintiff’s expert’s methodology need only be sufficiently credible or plausible to establish that loss reached the requisite purchaser level. It is not necessary that it establish that each and every class member suffered a loss nor must it be able to identify those class members who suffered no loss so as to distinguish them from those who did. In Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477, the Court directed that, for a court to certify loss-related questions as common issues in a price-fixing class proceeding, it must be satisfied that the plaintiff has shown a plausible methodology to establish that loss reached one or more claimants at the purchaser level. For indirect purchasers, this would involve demonstrating that the direct purchasers passed on the overcharge. Additionally, showing that loss reached the indirect purchaser level satisfies the criteria for certifying a common issue, since it will significantly advance the litigation, is a prerequisite to imposing liability upon the defendants and will result in common success. Showing loss reached the requisite purchaser level will advance the claims of all the purchasers at that level, because a common issues trial will either determine liability or terminate the litigation, with either scenario advancing the litigation toward resolution.
Aggregate damages under s. 29(1)(b) of the Class Proceedings Act are purely remedial, and available only after all other common issues have been determined, including liability. Irrespective, then, of whether aggregate damages are certified as a common issue, it is for the trial judge to determine, following the common issues trial, whether the statutory criteria are met such that the aggregate damages provisions can be applied to award damages. Aggregate damages provisions cannot be used to establish liability. In order for individual class members to participate in the award of damages, the trial judge must be satisfied that each has actually suffered a loss where proof of loss is essential to a finding of liability (as it is for liability under s. 36 of the Competition Act ). Whether a plaintiff’s expert’s methodology is sufficient for the purposes of establishing a defendant’s liability to all class members will depend on the findings of the trial judge.
Per Côté J. (dissenting in part): Both appeals should be allowed in part. The Pioneer defendants have not demonstrated that the plaintiff’s claim for recovery under s. 36(1) of the Competition Act is time-barred by the limitation period in s. 36(4) (a)(i). While the discoverability rule does not apply to toll the limitation period, it is not plain and obvious that the fraudulent concealment doctrine has no application in this case. There is agreement with the majority, though for different reasons, that the existence of the statutory cause of action in s. 36(1) of the Competition Act does not preclude the plaintiff from advancing claims at common law or in equity based on the same conduct prohibited by Part VI. However, there is disagreement that the umbrella purchasers have a claim against the defendants under s. 36(1) of the Competition Act . There is also disagreement that the certification judge identified the correct standard for certifying loss as a common issue pursuant to s. 4(1)(c) of the Class Proceedings Act and therefore that the plaintiff’s methodology met the correct standard in the present case.
The discoverability rule does not apply to toll the limitation period in s. 36(4) (a)(i) of the Competition Act that is applicable to the plaintiff’s claim for recovery under s. 36(1) of that statute. Discoverability is a judge-made rule of statutory interpretation that assists in determining whether the event triggering the commencement of a limitation period depends upon the state of the plaintiff’s knowledge. This rule applies only where a legislature provides that the limitation period runs from the accrual of the cause of action (or wording to that effect) or from the occurrence of some event that is related to the state of the plaintiff’s knowledge. Conversely, where a legislature provides that a limitation period is triggered by an event that occurs without regard to the plaintiff’s state of mind, courts cannot apply the discoverability rule to postpone the commencement of the limitation period until such time as the plaintiff discovered that the event had taken place.
Statutory language referring to the occurrence of an element of the cause of action cannot be equated with language referring to the accrual or arising of the cause of action in its entirety such that the discoverability rule automatically applies in the former case. This would expand the scope of the discoverability rule in a manner that is neither consistent with precedent nor justifiable in principle and would create an arbitrary distinction between triggering events that are related to the cause of action and those that are not, even though both may occur independently of the plaintiff’s state of mind. A preferable approach is instead one that considers each statutory limitation clause on its own terms, recognizing that a triggering event that relates to a cause of action can, but need not, be dependent on the plaintiff’s state of mind.
The limitation period in s. 36(4) (a)(i) commences on the day on which the conduct contrary to Part VI of the Competition Act actually takes place and not the day on which a potential claimant discovers that it took place. There is simply no link between the triggering event and the plaintiff’s state of mind. The provision does not contain wording to the same effect as accrual of the s. 36 cause of action. Applying discoverability would make the limitation period chosen by Parliament virtually meaningless and create uncertainty around the likelihood and timing of significant litigation.
A special relationship between the parties — one that is based on trust and confidence — is not always a prerequisite or a necessary element for the operation of the doctrine of fraudulent concealment. This doctrine operates to prevent a limitation clause from being used as an instrument of injustice in circumstances where a defendant conceals the facts giving rise to a potential cause of action from a plaintiff. In such circumstances, equity suspends the running of the limitation clock until the injured party can reasonably discover the cause of action. Fraud in equity is broader than it is at common law and what constitutes unconscionable conduct will vary from case to case and depend in part on the connection between the parties. Based on this understanding of the fraudulent concealment doctrine, it is not plain and obvious that equity can intervene to toll the applicable limitation period only in cases where there exists a special relationship; it may be that it can also intervene in cases — at least in the commercial context, as here — where the plaintiff can demonstrate something commensurate with or tantamount to a special relationship. However, simply establishing the existence of the conspiracy will not suffice for the fraudulent concealment doctrine to toll the applicable limitation period.
It is plain and obvious that the claims by umbrella purchasers — those class members who purchased from a non-defendant a product that was not manufactured or supplied by a defendant — under s. 36(1) (a) of the Competition Act cannot succeed. While on its face, s. 36(1) appears to be worded broadly enough to capture umbrella purchaser claims, so long as they can prove that they suffered loss or damage as a result of the conduct specified in para. (a) or (b) of subs. (1), this statutory provision must be interpreted in a manner that is consistent with the principles of indeterminacy and remoteness that limit the extent of liability at common law. Indeterminacy is a policy consideration that negates the imposition of a duty of care in negligence where it would expose the defendant to liability in an indeterminate amount for an indeterminate time to an indeterminate class and remoteness limits the scope of liability in negligence where the harm is too unrelated to the wrongful conduct to hold the defendant fairly liable. Although these principles relate primarily to liability in negligence, they can inform the analysis of claims under s. 36 for pure economic loss. Section 36(1) should not be interpreted in a manner that would permit claimants to recover from defendants for any losses that in some way flowed from the alleged price‑fixing conspiracy as it would expose defendants to liability that is potentially limitless in scope for loss and damage that are too remote from any price-fixing that occurred. Consistent with the principles underlying indeterminacy and remoteness, the cause of action in s. 36(1) should be read as limiting the scope of liability of defendants to loss and damage flowing from their own pricing decisions, not those of third parties. Any overcharges the umbrella purchasers may have incurred in the present case were the direct result of pricing decisions made by non-defendant manufacturers and suppliers of ODDs, regardless of whether those choices were influenced by broader market trends. The defendants have control over their own business decisions but not over those of third parties. For this reason, it would be unfair to hold the defendants liable to the umbrella purchasers where they had no control over such liability.
It is not plain and obvious that s. 36(1) bars a plaintiff from alleging common law and equitable causes of action in respect of conduct that breaches the prohibitions in Part VI of the Competition Act . The coexistence of statutory and common law or equitable claims arising from conduct contrary to Part VI of the Competition Act is contemplated by s. 62 of that statute. The inclusion of s. 62 in the statutory framework suggests that Parliament did not intend the provisions of the Competition Act to intrude upon the provinces’ jurisdiction over civil rights and liberties. That s. 62 applies only to Part VI of the Competition Act is not consequential as the cause of action created by s. 36(1) (a) is expressly tied to conduct that would constitute an offence under that part. When the words of s. 62 are read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the act and the intention of Parliament, this provision has the effect of preserving all civil rights of action that a claimant may have in respect of anti-competitive conduct contemplated under Part VI of that Act. Section 62 would be meaningless if s. 36(1) were interpreted as exhaustive in respect of civil claims for such conduct.
For questions to be certified as common issues under s. 4(1)(c) of the Class Proceedings Act, the representative plaintiff must show there is some basis in fact for the commonality requirement — that is, that the questions be capable of resolution on a class-wide basis. What the “some basis in fact” standard requires in any given case depends on what it is that the proposed questions ask; different questions will impose different requirements. In class actions where loss is an essential element of liability, loss-related questions can be certified as common issues only if the representative plaintiff’s expert methodology will be able to actually identify which class members suffered a loss at trial.
In the present case, in order for loss-related questions to be certified as common issues among indirect purchasers pursuant to s. 4(1)(c) of the Class Proceedings Act, the representative plaintiff’s proposed methodology must be capable of establishing at trial that at least some identifiable indirect purchasers actually suffered a loss. The plaintiff has not met the required standard in the present case because his methodology is only capable of establishing at trial that loss was occasioned somewhere at the indirect purchaser level of the distribution chain. Such a methodology will not enable the common issues trial judge to determine which class members actually suffered a loss — an essential element of the causes of action pleaded, and necessary for the purpose of making determinations as to liability. The proposed loss-related questions will therefore not be capable of resolution on a class‑wide or common basis. What is required of the plaintiff in this case is a methodology capable of answering the loss-related questions on an individualized basis, either by showing that all of the indirect purchasers suffered a loss or at least by identifying those who did and separating them from those who did not.
Cases Cited
By Brown J.
Applied: Pro‑Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477; referred to: Watson v. Bank of America Corp., 2015 BCCA 362, 79 B.C.L.R. (5th) 1; Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53; Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158; Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147; Peixeiro v. Haberman, [1997] 3 S.C.R. 549; Ermineskin Indian Band and Nation v. Canada, 2006 FCA 415, [2007] 3 F.C.R. 245, aff’d 2009 SCC 9, [2009] 1 S.C.R. 222; Bowes v. Edmonton (City), 2007 ABCA 347, 425 A.R. 123; Fehr v. Jacob (1993), 14 C.C.L.T. (2d) 200; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Burt v. LeLacheur, 2000 NSCA 90, 189 D.L.R. (4th) 193; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Fanshawe College of Applied Arts and Technology v. AU Optronics Corp., 2016 ONCA 621, 132 O.R. (3d) 81; Guerin v. The Queen, [1984] 2 S.C.R. 335; Kitchen v. Royal Air Forces Association, [1958] 2 All E.R. 241; T.P. v. A.P., 1988 ABCA 352, 92 A.R. 122; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678; Shah v. LG Chem, Ltd., 2015 ONSC 6148, 390 D.L.R. (4th) 87; Kone AG and Others v. ӦBB-Infrastruktur AG, [2014] EUECJ C-557/12; Fairhurst v. Anglo American PLC, 2014 BCSC 2270; Pro‑Sys Consultants Ltd. v. Infineon Technologies AG, 2009 BCCA 503, 98 B.C.L.R. (4th) 272; Irving Paper Ltd. v. Atofina Chemicals Inc. (2009), 99 O.R. (3d) 358; Crosslink Technology Inc. v. BASF Canada, 2014 ONSC 1682, 54 C.P.C. (7th) 111; Shah v. LG Chem, Ltd., 2018 ONCA 819, 142 O.R. (3d) 721; Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, [2013] 3 S.C.R. 600; Sun‑Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58, [2013] 3 S.C.R. 545; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; R. c. Proulx, 2016 QCCA 1425; Proprietary Articles Trade Association v. Attorney General for Canada, [1931] A.C. 310; International Brotherhood of Teamsters v. Therien, [1960] S.C.R. 265; Gagnon v. Foundation Maritime Ltd., [1961] S.C.R. 435; Cement LaFarge v. B.C. Lightweight Aggregate, [1983] 1 S.C.R. 452; A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534; Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666.
By Côté J. (dissenting in part)
M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147; Peixeiro v. Haberman, [1997] 3 S.C.R. 549; Fehr v. Jacob (1993), 14 C.C.L.T. (2d) 200; Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53; Fanshawe College of Applied Arts and Technology v. AU Optronics Corp., 2016 ONCA 621, 132 O.R. (3d) 81; Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, [2018] 3 S.C.R. 189; Snow v. Kashyap (1995), 125 Nfld. & P.E.I.R. 182; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R. 801; CCS Corp. v. Secure Energy Services Inc., 2014 ABCA 96, 575 A.R. 1; Laboratoires Servier v. Apotex Inc., 2008 FC 825, 67 C.P.R. (4th) 241; Garford Pty Ltd. v. Dywidag Systems International, Canada, Ltd., 2010 FC 996, 88 C.P.R. (4th) 7; Eli Lilly and Co. v. Apotex Inc., 2009 FC 991, 80 C.P.R. (4th) 1; Fairview Donut Inc. v. The TDL Group Corp., 2012 ONSC 1252; Giroux Estate v. Trillium Health Centre (2005), 74 O.R. (3d) 341; Kitchen v. Royal Air Forces Association, [1958] 2 All E.R. 241; Guerin v. The Queen, [1984] 2 S.C.R. 335; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678; First City Capital Ltd. v. B.C. Building Corp. (1989), 43 B.L.R. 29; McMaster University v. Wilchar Construction Ltd. (1971), 22 D.L.R. (3d) 9; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140; Ultramares Corp. v. Touche, 174 N.E. 441 (1931); Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114; Taylor v. 1103919 Alberta Ltd., 2015 ABCA 201, 602 A.R. 105; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477; Associated General Contractors v. Carpenters, 459 U.S. 519 (1983); Shah v. LG Chem, Ltd., 2015 ONSC 6148, 390 D.L.R. (4th) 87; Shah v. LG Chem, Ltd., 2017 ONSC 2586, 413 D.L.R. (4th) 546; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Blue Shield of Virginia v. McCready, 457 U.S. 465 (1982); Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977); Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021; Shah v. LG Chem, Ltd., 2018 ONCA 819, 142 O.R. (3d) 721; R. v. Proulx, 2016 QCCA 1425; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Westfair Foods Ltd. v. Lippens Inc. (1989), 64 D.L.R. (4th) 335; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534; Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214; Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58, [2013] 3 S.C.R. 545; Pro-Sys v. Microsoft, 2010 BCSC 285.
Statutes and Regulations Cited
Budget Implementation Act, 2009, S.C. 2009, c. 2, s. 410 .
Class Proceedings Act, R.S.B.C. 1996, c. 50, ss. 1, 4(1), Division 2, 29 to 34, 37(1).
Clayton Act, 15 U.S.C. § 15, s. 4.
Combines Investigation Act, R.S.C. 1970, c. C‑23.
Competition Act, R.S.C. 1985, c. C‑34, ss. 1.1 , 36 , Part VI, 45, 52, 62.
Highway Traffic Act, R.S.O. 1990, c. H.8, s. 206(1).
Land Titles Act, R.S.A. 2000, c. L-4.
Limitation Act, S.B.C. 2012, c. 13, ss. 6 to 8, 21.
Limitation of Actions Act, S.N.B. 2009, c. L‑8.5, s. 5.
Limitation of Actions Act, S.N.S. 2014, c. 35, s. 8.
Limitations Act, R.S.A. 2000, c. L‑12, s. 3(1).
Limitations Act, R.S.O. 1970, c. 246, s. 45(1).
Limitations Act, S.S. 2004, c. L‑16.1, ss. 5 to 7.
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APPEALS from a judgment of the British Columbia Court of Appeal (Newbury, Groberman and Savage JJ.A.), 2017 BCCA 302, 1 B.C.L.R. (6th) 319, [2017] 12 W.W.R. 448, [2017] B.C.J. No. 1618 (QL), 2017 CarswellBC 2245 (WL Can.), affirming a decision of Masuhara J., 2016 BCSC 844, [2016] B.C.J. No. 979 (QL), 2016 CarswellBC 1313 (WL Can.). Appeals dismissed, Côté J. dissenting in part.
W. Michael G. Osborne, Brigeeta Richdale and Jessica Lewis, for the appellants Pioneer Corporation, Pioneer North America, Inc., Pioneer Electronics (USA) Inc., Pioneer High Fidelity Taiwan Co., Ltd. and Pioneer Electronics of Canada Inc.
Laura F. Cooper and Vera Toppings, for the appellants Toshiba Corporation, Toshiba Samsung Storage Technology Corp., Toshiba Samsung Storage Technology Corp. Korea, Toshiba of Canada Ltd. and Toshiba America Information Systems, Inc.
Robert E. Kwinter and Evangelia (Litsa) Kriaris, for the appellants Samsung Electronics Co., Ltd., Samsung Electronics Canada Inc. and Samsung Electronics America, Inc.
Neil Campbell, Joan Young and Samantha Gordon, for the appellants Koninklijke Philips Electronics N.V., Lite‑On IT Corporation of Taiwan, Philips & Lite‑On Digital Solutions Corporation, Philips & Lite‑On Digital Solutions USA, Inc. and Philips Electronics Ltd.
John F. Rook, Q.C., Christiaan A. Jordaan and Emrys Davis, for the appellants Panasonic Corporation, Panasonic Corporation of North America and Panasonic Canada Inc.
Stephen Fitterman, for the appellants BENQ Corporation, BENQ America Corporation and BENQ Canada Corp.
Reidar M. Mogerman, Linda J. Visser, David G. A. Jones, Charles M. Wright, Katie I. Duke and Bridget M. R. Moran, for the respondent.
Maxime Nasr and Violette Leblanc, for the intervener Option consommateurs.
Jonathan J. Foreman and Jean‑Marc Metrailler, for the intervener the Consumers Council of Canada.
Sandra A. Forbes and Adam Fanaki, for the intervener the Canadian Chamber of Commerce.
Jean‑Marc Leclerc and Mohsen Seddigh, for the intervener the Consumers’ Association of Canada.
The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ. was delivered by
Brown J. —
I. Introduction
[1] The proposed representative plaintiff, Neil Godfrey, applied for certification of a class proceeding under the British Columbia Class Proceedings Act, R.S.B.C. 1996, c. 50. The defendants manufacture Optical Disc Drives (“ODDs” — a memory storage device that uses laser light or electromagnetic waves near the light spectrum to read and/or record data on optical discs), and ODD products (products that contain ODDs). Godfrey alleges that the defendants conspired to fix prices of ODDs and ODD products.
[2] The certification judge granted Godfrey’s application. Two sets of defendants — one led by Pioneer Corporation, and the other by Toshiba Corporation — each appealed from that decision, unsuccessfully, to the British Columbia Court of Appeal. At stake in these appeals is, principally, whether it is plain and obvious that the claim under s. 36(1) (a) of the Competition Act, R.S.C. 1985, c. C-34 , of so-called “umbrella purchasers” who bought ODDs or ODD products manufactured and supplied by someone other than the defendants, but who allege that the defendants’ price-fixing conduct raised the market price of the product, cannot succeed. This depends on whether these umbrella purchasers have a cause of action under s. 36(1) (a). For the reasons that follow, I agree with the courts below that they do, and it therefore follows that it is not plain and obvious that their claim cannot succeed.
[3] These appeals also present an occasion to clarify the operation of the statutory limitation period for claims under s. 36(1) (a) of the Competition Act , to affirm the availability of common law and equitable actions in respect of claims also brought under s. 36(1) (a) of the Competition Act , and to reiterate the standard required to certify loss-related questions as common issues in class proceedings.
[4] As I will explain below, my disposition of all these matters would lead me to dismiss the appeals.
II. Background
[5] Godfrey applied for certification of a class proceeding against 42 defendants (collectively, “Toshiba”), alleging a conspiracy to raise, maintain, fix and/or stabilize the price of ODDs between January 1, 2004 and January 1, 2010 (“class period”). He deposed that he purchased ODD products during the class period, and that he seeks to bring the proposed class proceeding on behalf of all British Columbia residents who purchased an ODD or an ODD product during the class period. The proposed class consists of:
(a) direct purchasers, whose ODD or ODD product was manufactured or supplied by a defendant and purchased from that defendant,
(b) indirect purchasers, whose ODD or ODD product was manufactured or supplied by a defendant and purchased from a non-defendant; and
(c) umbrella pu