Canadian Court Allows Indirect Purchaser Antitrust Class Action

Here is an interesting paper from Davies Ward Phillips & Vineberg on a Canadian trial court decision certifying an antitrust class action for indirect purchasers of hydrogen peroxide products. The commentators view the decision as a potentially significant expansion of Canadian law if the decision withstands appeals. A key excerpt is as follows:


"In Irving Paper, Justice Rady relied on two more recent decisions of the Ontario Court of
Appeal – Markson v. MBNA Canada Bank and Cassano v. The Toronto Dominion Bank – to
frame her analysis of the issue. In her view, these two decisions have overtaken Chadha
and signal a relaxation of the evidentiary threshold prescribed by Chadha. Among other
things, Her Honour interpreted Markson as establishing "that not every class member need
have suffered a loss and so it is not necessary to show damages on a class-wide basis".
Justice Rady also relied on the Ontario Superior Court's 2004 decision in Hague v. Liberty
Mutual Insurance Co. and the Ontario Court of Appeal's decision in Cloud v. Canada
(Attorney General) as authority for the proposition that she was not required to reconcile the
conflicting expert opinions before her regarding the existence of a workable class-wide
means to prove liability.