Aggregate Assessment of Damages Allows Certification of Conspiracy Class Actions, Courts Hold

In two recent decisions, the Ontario Superior Court and the British Columbia Court of Appeal relied on the aggregate damages provisions of the Class Proceedings Act in their respective provinces to certify class actions seeking damages for alleged conspiracies to fix prices for hydrogen peroxide and DRAM memory chips. In doing this, both courts side-stepped the requirement in the aggregate damages provisions that liability must be proved before damages can be assessed in the aggregate. A close examination of the decisions suggests, however, that the courts have in effect done away with this statutory requirement.

Competition Law Review

Contributors: Michael Osborne, Sonny Ingram, Jennifer Dyck, and Christian Farahat.

Review of all Canadian Competition Law developments over the last 12 months, plus some US and EU developments, including: Mergers, Criminal, Private Actions, Reviewable Matters, Marketing Practices, The Long Arm of US Antitrust, Across the Pond

Top Stories

• Hard time for hard core cartels
• Class action requirements loosened
• Suncor – Petro-Canada merger gets green light
• Nadeau’s feathers ruffled by Tribunal

Court of Appeal reconsiders test for jurisdiction over foreign defendants

In a recent decision, a five judge panel of the Court of Appeal for Ontario revised the legal test to be applied when the Ontario courts are asked to assume jurisdiction over a foreign defendant. The Court’s decision in Van Breda v. Village Resorts Ltd. clarifies the applicable legal principles and should provide greater guidance to Ontario courts on whether and when they can properly take jurisdiction over foreign defendants.

Court of Appeal Upholds $3 Million Judgment in Bad Faith Revocation Case

In its decision released earlier this year in Rosenhek v. Windsor Regional Hospital,[i] the Court of Appeal for Ontario affirmed a $3 million judgment awarded to a doctor in his action against a hospital arising from the denial of hospital privileges to him. The Court concluded that the hospital’s Board of Governors had acted in bad faith in summarily revoking the doctor’s hospital privileges primarily because he didn’t “fit in” with his fellow staff members.

The IMAX Case: Superior Court certifies first-ever Ontario shareholder class action for misrepresentations on the secondary market

In a pair of decisions released the same day, Justice Katherine van Rensburg of the Ontario Superior Court of Justice became the first judge to consider the statutory remedy created under section 138.3 of the Ontario Securities Act (the “Act”) for shareholders of public companies who suffer damages from public company misrepresentations on the secondary securities market in documents such as annual financial statements and other public documents.