A tentative hearing date of June 5, 2012 has been set in the Pro-Sys and Sun-Rype indirect purchaser price-fixing class action cases before the Supreme Court of Canada (see: Supreme Court of Canada – scheduled hearings, Pro-Sys Consultants Ltd. – docket, Sun-Rype Products Ltd. – docket).
In Pro-Sys, a majority of the British Columbia Court of Appeal set aside an earlier Supreme Court of British Columbia decision granting certification and dismissed the action on the basis that the representative plaintiffs, as indirect purchasers, had no cause of action maintainable in law.
In Sun-Rype, the British Columbia Court of Appeal similarly set aside an earlier Supreme Court of British Columbia decision granting certification for indirect purchaser plaintiffs, holding that they had no cause of action (and remitted the application to the trial court for consideration with respect to the direct purchaser plaintiffs).
These companion decisions by the British Columbia Court of Appeal were in contrast and conflict to a recent Quebec Court of Appeal decision in Option Consommateurs v. Infineon Technologies AG, which unanimously overturned a 2008 Quebec Superior Court decision denying a motion to commence indirect purchaser class action proceedings.
Presumably based on the uncertainty of indirect purchasers’ ability to commence price-fixing class actions in Canada (the Supreme Court does not issue reasons in leave applications), and the conflicting existing case law including these recent British Columbia and Quebec appellate decisions, the Supreme Court granted leave to appeal on December 1, 2011 (see: Canadian Supreme Court Grants Leave in Pro-Sys/Microsoft and Sun-Rype Indirect Purchaser Competition/Antitrust Class Actions).
After some years of unsettled law and conflicting decisions, it looks as though after June plaintiff and defense counsel, and their clients, will receive some long-awaited certainty regarding the ability of indirect purchasers to commence price-fixing class actions and the status of the passing-on defense in Canada.
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