Class action law continues to evolve in Canada. This article from McCarthy Tetrault provides a link to and commentary on a recent and controversial appellate decision approving certification of an antitrust class involving DRAM chips. Key excerpts are set out below:
"The DRAM litigation has been closely followed by specialists in the fields of class action and competition/anti-trust law, both in Canada and the United States, where several parallel actions are underway. Until recently, no Canadian court had ordered a price-fixing case certified for a proposed class, like this one, which comprises both direct and indirect purchasers (at least where certification was contested).
The main problem for plaintiffs in these cases has been the difficulty in showing that the class as a whole suffered harm. It is not clear how a plaintiff can prove which buyers actually paid for the alleged price increase, and which suffered only some or no loss at all (either because it was absorbed by someone else or passed on, in whole or in part, to another buyer). These issues threaten to complicate the trial with countless individual inquiries, rendering the case as a whole unmanageable as a class proceeding."