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Competition Litigation in Canada

Availability of civil claims

Scope of civil claims in Canada

In Canada, private enforcement actions are statutorily available under Section 36 of the Competition Act 1 (the “Act”). Section 36 allows for two different types of private proceedings for the recovery of damages resulting from competition law infringements:

i) an action for breach of one of the criminal provisions in Part VI of the Act, such as conspiracy (Section 45), bid-rigging (Section 47), false or misleading representations (Section 52), telemarketing (Section 52.1) and pyramid selling (Section 55.1); and

ii) an action for failure to comply with an order of the court or the Canadian Competition Tribunal (the “Tribunal”), such as an order to cease certain anti-competitive conduct.2

A prior conviction or a finding of failure to comply with an order of the court or the Tribunal is not required for an individual or a company to initiate or succeed on a private enforcement action under Section 36. 3 However, a prior conviction or a guilty plea will alleviate the burden of proof on the private claimant.

In addition to the statutory rights of action, claimants in Canada’s common law provinces have recourse to certain recognized causes of action in common law that may be connected with economic torts related to competition issues, such as unlawful interference with contractual and economic relations, civil conspiracy and misrepresentation. Claimants often attach common law claims to their Section 36 private action to avail themselves of a wider range of remedies. 4  Similar tactics have been used in Quebec, relying on the civil liability regime under Chapter III of the Civil Code of Quebec.

A finding of infringement of an equivalent competition law in another country may practically increase the chances of a private enforcement action. While it has no legal consequence, a foreign finding of infringement may have persuasive weight in Canada. The success of a Canadian action following a foreign finding of infringement will depend on whether the evidentiary burden imposed by Section 36 is met and whether the Canadian court is entitled to take jurisdiction. Canadian courts in common law provinces will generally find jurisdiction over foreign companies and individuals where there is a real and substantial connection between the alleged misconduct and the jurisdiction of the court. In Quebec, the courts have traditionally adopted a narrower approach, refusing to find jurisdiction in cases where only pecuniary losses are suffered by the claimant and the foreign defendant has no “establishment” in Quebec.

Applicable limitation periods

A private claim under Section 36 must be made within the later of two years from:

i) the date on which the latest alleged offensive conduct occurred (or, in the case of an alleged breach of an order of the court or Tribunal, the day on which the order was contravened); or

ii) the date on which any criminal proceedings relating to the conduct at issue were finally disposed of. 5

The language used to describe the limitation period under the Act is somewhat ambiguous and has led to debates on the precise time at which the offensive conduct can be said to have occurred. It remains unclear how the courts will deal with limitation periods in cases where there is continuous misconduct or where the misconduct was concealed for a period of time. The Federal Court of Appeal has held that the “ongoing effects” and “ongoing damages” doctrines do not apply to claims under Section 36 alleging violation of the Section 45 conspiracy provision of the Act. The Court declined to decide whether the “discoverability principle” is available for Section 36 claims.  7 According to that principle, the limitation period only starts when the claimant knows (or ought to have known) about the alleged anti-competitive conduct.

The meaning of “finally disposed of” in respect of criminal proceedings has also been questioned before the courts. For instance, it is unclear whether a stay of criminal proceedings or an acquittal can be considered a criminal disposition. It remains unclear, therefore, whether a private action can be started against a party that has not been indicted, even if more than two years have passed since the offensive conduct was carried out.

An additional contentious point is how the statutory limitation period interacts with other limitation periods under the common law or the Civil Code of Quebec. The Supreme Court of British Columbia refused to dismiss a claim on the basis that the two-year limitation period had lapsed, because an element of the claim involved a constructive trust, which was subject to a longer limitation period. 8  Similarly, claims under the general rules of civil liability under Article 1457 of the Civil Code of Quebec, brought in respect of a breach of a party’s duty to abide by applicable rules of conduct, have a limitation period of three years. Such claims have been pleaded in conjunction with claims brought under Section 45 of the Act.

Limitation periods for common law claims vary by province throughout Canada. In Ontario, a general limitation period of two years following the date on which the claim was discovered is applicable, with some limited exceptions.9


Private action claims under Section 36 can be made before either a competent provincial court or the Federal Court. The Federal Court may only consider claims alleging violation of the Act and, unlike provincial courts, cannot consider related common law-based claims.

Canadian law provides a right of appeal on grounds of law, fact, or mixed law and fact, from all final decisions of the provincial or federal courts to the relevant courts of appeal. If unsatisfied with the decision of the appellate court, a party to the proceedings may file for leave to appeal to the Supreme Court of Canada (the “SCC”) on questions of law or mixed law and fact. The duration of the appeal process varies depending on the nature of the appeal and the courts involved, but is typically from 6 to 18 months.

A decision to reject certification of a class action in Canada is considered a final decision from which there is an automatic right to appeal.

Availability of class actions for infringement of competition law and/or damages in Canada

Class actions are available in all Canadian provinces, with the exception of Prince Edward Island 10, through enabling provincial legislation. The enactment of class action legislation has increased drastically the number of private actions brought under Section 36, specifically with respect to claims relating to the Act’s conspiracy provisions. It is now considered a near inevitability that a class action will follow significant convictions under the criminal provisions of the Act.

In Ontario, class actions are regulated under the Class Proceedings Act (the “CPA”) . 11 Under that legislation, a motion must be made to a judge of the Superior Court of Ontario for an order certifying the proceeding as a class proceeding and appointing the individual claimant who started the lawsuit as the representative claimant for the class. 12

Before certification of a class proceeding, the court must be satisfied that:

i) the pleadings in the action disclose a reasonable cause of action; 13

ii) there is an identifiable class of two or more persons that would be represented by the representative claimant;

iii) the claims of the class members raise common issues;

iv) a class proceeding is the preferable procedure for the resolution of the common issues; and

v) there is a representative claimant who would fairly and adequately represent the interests of the class; has demonstrated a workable method of advancing the proceedings on behalf of the class; and does not have an interest in conflict with the interests of the class members. 14

An order certifying a class proceeding is not a determination of its merits. However, the pressure that is brought to bear on a defendant once a class proceeding has been certified often results in the settlement of the action, as the certification generally constitutes a significant tactical advantage. Typically, defendants do not wish to have a class proceeding certified against them, as it would allow many claims that would not be litigated on an individual basis to be asserted en masse with minimal risk or cost to the members of the class.

There are different approaches to costs across Canadian jurisdictions. In Ontario and Alberta, the losing party, whether the claimant class or the defendants, may bear legal and other costs. Other jurisdictions, such as British Columbia, and Newfoundland and Labrador, generally do not award costs, except when the conduct of one of the parties is vexatious or abusive.

Following class certification, notice is provided to potential class members advising of the certification and their right to opt out, or for non-residents in some provinces, to opt in to the proceeding. Once the opt-out (or opt-in) period (which is, on average, 60 to 90 days) has expired, all class members are bound by any court orders made in respect of the class proceeding and are barred from commencing litigation in respect of the allegations raised in the class proceeding.

Once the class is established, the certified common issues of the proceeding will be litigated. The action on common issues will proceed much like traditional litigation, with documentary and oral discovery, pre-trial procedures, exchange of expert reports and, absent any resolution, trial.

The SCC confirmed the potential standing of both direct and indirect purchasers to assert a cause of action in class proceedings under the Act, in a trilogy of decisions relating to price-fixing allegations in late 2013 (the “2013 trilogy). 15  Prior to the 2013 trilogy, courts heavily debated whether a class proceeding is the appropriate forum to address some claims, especially those made by indirect purchasers in class actions dealing with price-fixing allegations. In such actions, the claimants usually claim damages for “overcharge” resulting from price-fixing, and had grappled with the difficulties inherent in determining, on a class-wide basis, which members of the class bore the “overcharge.” As further discussed below, the SCC held in the 2013 trilogy that such difficulties should not be a reason to reject class certification.

As with individual proceedings brought pursuant to the Act, class action claimants will often plead related common law causes of action, such as negligent misrepresentation, along with alleged statutory breaches brought under Section 36. 16

Conduct of proceedings and costs

Burden of proof

Claimants in a Section 36 private action bear the burden of proving that there was an infringement of the applicable provisions of the Act, or that the defendant failed to comply with a court or Tribunal order, and that the claimants suffered actual loss as a result of the infringement or the failure to comply.

The burden of proof in all claims under Section 36 is the civil burden, which requires that the claimant proves the claims on a balance of probabilities. While there have been suggestions that establishing a violation of a criminal provision of the Act requires a higher burden of proof and greater care in scrutinizing the evidence, 17 the SCC in FH v McDougall held that the civil burden of proof is the only applicable standard in civil cases, even where the claim is related to a criminal conduct. 18

Section 36 provides a rebuttable presumption which eases the evidentiary requirements for private claimants. In cases where the private claim follows a criminal conviction by the courts, that conviction would qualify as sufficient proof of the defendant’s breach of the relevant provision for the purpose of the civil claim as well. This presumption is aimed at facilitating claims by private parties that lack the statutory investigatory powers accorded to the Commissioner of Competition (the “Commissioner”) and, through the Commissioner, the Competition Bureau (the “Bureau”).

The requirement to prove actual damages may also raise questions as to whether a private claimant in fact suffered losses, notably where losses were passed on to other parties. However, the British Columbia Court of Appeal in the Sun-Rype case concluded that the so-called “passing-on defense” is not available in Canada, and that a defendant therefore cannot argue that the claimant has not suffered harm merely because an overcharge was passed on to other parties, such as end consumers. 19 In its ruling on appeal of this decision as part of the 2013 trilogy, the SCC upheld the rejection of the passing-on defense, while maintaining that passed-on losses – that is, the injury suffered by indirect purchasers – can form the basis of a claim. 20 As explained in the Emerging Trends section below, the SCC acknowledged the plaintiffs’ ultimate burden of proof in such proceedings, but held that permitting such actions does not risk double or multiple recovery by direct and indirect purchasers and that it would be inappropriate to dismiss the action because of evidentiary difficulties associated with claims from indirect purchasers.

Joint and several liability of cartel participants

Liability is generally joint and several between parties to an illegal cartel. This means that a private claimant, or a class of claimants, is able to bring an action for the entirety of the losses suffered against one or more, but not necessarily all, parties to an alleged cartel.

While Canadian courts have not issued a definitive ruling on this matter, it may be possible for one party to a cartel to initiate a cross claim, within an ongoing proceeding, against other parties to the cartel for contribution or indemnity. If successful, a defendant who has had to bear the full costs of damages in a private claim may be able to redeem a portion of the paid damages from other parties to the cartel.

Documents and evidence that can be used by claimants (for example, investigation evidence) and legal privilege

Generally, parties to a civil claim have a duty to disclose all documents in their control, or that have been in their control, that are related to the action, whether or not the disclosure of such documents assists their case, with the exception of documents for which a legal privilege is being claimed.

In private competition litigation, there are two scenarios for discovery and disclosure of documents. Where the Section 36 claim is a follow-on claim, namely a claim that follows a finding of conviction by a court in a criminal proceeding under the Act, claimants may be permitted access to evidence used in the criminal proceeding. For example, Sub-section 36(2) of the Act effectively allows claimants access to the “record of proceedings” of the court in which the defendant was convicted or in which the defendant entered into a guilty plea. This right is not conditioned on the approval of the Bureau.

If the civil claim has been started prior to criminal proceedings against the defendant, evidence that has been gathered by the Bureau during the course of an inquiry or an investigation may not always be available to private claimants until a conviction has been obtained. This is significant, bearing in mind the difficulty associated with gathering evidence without recourse to the statutory investigation powers given to the Commissioner. Civil proceedings brought by a private party and criminal proceedings related to the same alleged conduct may occur in parallel. While the court trying the civil action has the right to stay a civil proceeding where a criminal charge is pending, this is only granted in exceptional circumstances, where the defendant is able to show that the continuation of the civil proceeding will prejudice the criminal proceeding.

Attempts by Section 36 claimants to gain access to the Bureau’s investigation records, absent a criminal proceeding, 21 have not always been successful. This is in part due to the Section 29 bar on the disclosure of evidence gathered by the Bureau to a third party, although the same provision contemplates such disclosure when necessary for the administration or enforcement of the Act. Legal and litigation privileges may also bar access to evidence gathered in the course of the criminal proceeding.

An issue that remains open is whether claimants in a Section 36 claim may make use of the earlier occurrence of discovery in United States proceedings. Canadian claimants seek at times to rely on evidence that has already been disclosed in similar claims in the United States, and their efforts have met with varying degrees of success. While some cases have denied such efforts, based on comity between American and Canadian courts, and in order to prevent claimants in Canada from accessing evidence earlier than the timeframe envisioned under Canadian law, other courts have held that such attempts do not raise concerns.

Pre-action disclosure

In Canada, pre-action disclosure, a remedy also known as a Norwich order, 22 is considered an extraordinary remedy which should only be granted in cases where disclosure of certain evidence is required to permit an action to proceed.

In Ontario, two recent cases, GEA Group AG v Ventura Group Co 23  and York University v Bell Canada Enterprises and Rogers Communications Inc 24 , have provided some clarity to the applicable test for ordering pre-action disclosure, however, these cases may be of limited application as they deal specifically with the pre-action disclosure of evidence from non-parties.

Average length of time from issue of claim to judgment in Canada

Canadian courts have different time limits, determined by provincial legislation, which generally govern the duration of civil claims. However, in complex competition litigation, and especially in class actions, set deadlines are commonly extended either by consent between the parties or as determined by the relevant court.

It is not uncommon for complex competition litigation to take from two to five years to reach a resolution.

Average cost from issue of claim to judgment in Canada

Costs incurred in pursuing competition law claims in Canada vary substantially depending on, inter alia, the causes of action pleaded, whether a related criminal proceeding has been commenced, the complexity of the legal issues in dispute, the number and nature of defendants involved and the availability of evidence. By way of example, for a relatively complex competition litigation proceeding involving claimed damages of CAD1 million, it would not be unusual for a claimant to incur legal costs in the range of CAD250,000 to CAD500,000 or even more.

Courts will generally order the losing party to pay part of the legal costs of the successful party at the end of the litigation. While the award may vary from case to case, courts will generally award between one-third and one-half of the successful litigant’s costs, which is referred to as “party and party” costs or the partial indemnity scale. Where a court determines that a case was frivolous or vexatious, or in other extraordinary circumstances, costs may be awarded on a substantial indemnity scale, which will generally be between 60% and 80% of the successful party’s costs.

Relevant to private action competition litigation, Section 36(1) specifically references that successful claimants may be awarded an amount “not exceeding the full cost to him of any investigation in connection with the matter and of proceedings under this section.” This may increase a successful litigant’s chances of recovering costs.

Third-party/alternative funding

Third party funding of private action litigation, including in respect of class actions, is permissible. Nonetheless, third party funding is still nascent in Canada and some provincial law societies are currently monitoring such funding and devising rules to regulate it.

Other potential alternative funding is by way of contingency fees, which are the preferred method of funding for class action litigation, and public funding in rare cases where the claimants require financial support.

Alternative methods of dispute resolution

Alternative means of dispute resolution are available in Canada for civil claims in general. Such means include arbitration and mediation, however, these procedures are not often used in private competition litigation.


Availability of damages and quantification

Generally, damages, including claims for interest in most jurisdictions, are available under Section 36 so as to compensate the claimant for all losses suffered as a result of the alleged breach. It is insufficient for a claimant to simply prove the defendant’s infringement of the applicable criminal provision; the specific breach must have caused demonstrable loss to the claimant.

In addition to damages, the claimant may recover both legal costs and costs incurred in investigating the claim. Investigation costs include the claimant’s costs for carrying out surveys, conducting market analyses and economic studies, as well as other reasonable investigations. In practice, damages awarded by Canadian courts in competition cases are generally lower than those awarded in the United States.

To date, excluding settlements, damages have been awarded in a limited number of competition claims brought under Section 36. In Maritime Travel Inc v Go Travel Inc 25 the Court awarded general damages of CAD216,842 for conduct held to be contrary to the criminal misleading advertising provisions of the Act. In 2011, an Alberta court awarded CAD5 million in general damages in 321665 Alberta Ltd v ExxonMobil Canada Ltdstyle 26 as a result of the defendant’s violation of the Section 45 conspiracy provision of the Act, however, that decision was later reversed on the merits by the Alberta Court of Appeal. 27

Punitive and exemplary damages

Canadian courts have held that punitive damages are not available for claimants in a Section 36 private action. 28 Nonetheless, under the common law, punitive damages may be available for some economic torts, including those that may be claimed in a competition-related action.

As a result, claimants may find it strategically desirable to frame their pleadings both as claims under the Act as well as common law causes of action, in order to avail themselves of the wider array of remedies available under the common law.

In general, however, punitive and exemplary damages are only awarded in Canada in rare circumstances. In ExxonMobil, the lower court ordered CAD500,000 punitive damages against each defendant. Notably, the claim alleged Section 36 violations as well as common law causes of action.

Availability of interim or final injunctions in respect of an alleged competition law infringement

The Act does not explicitly address whether interlocutory or permanent injunctions are available for private actions under Section 36. Canadian courts are divided over whether Section 36 claimants can have recourse to such remedies. The inherent jurisdiction of superior courts to do justice between parties has at times been taken to mean that the court may grant injunctive relief.  29 However, courts have generally found that injunctions are not available in competition-related actions, since the Act specifically refers only to damages (not mandatory orders) as a remedy under Section 36. 30 In some cases, claimants will plead common law causes of action in conjunction with claims brought under the Act, in an effort to make use of the potential availability of injunctive relief.

To obtain an interlocutory injunction, the court will generally have to be satisfied that there is a serious issue to be tried, that refusing to grant the injunction will cause irreparable harm to the claimant’s interest and that the “balance of convenience,” assessed through balancing the alleged harm to the claimant with the affected interests of the defendants, favors granting an injunction. 31 To obtain a final (permanent) injunction, the court will generally require that the court “fully evaluate” the parties’ legal rights. 32

Other types of relief

No other types of relief are available for a private claim under Section 36. 33 If the action alleges common law causes of action, other forms of relief such as disgorgement or other equitable relief may be available.

Emerging Trends

Pragmatic approaches to class action certification of direct and indirect purchasers:

The treatment of Section 36 claims by indirect purchasers in class actions has emerged as an interesting point of contention and jurisprudential development. While earlier decisions generally denied certification of class actions based on Section 36, courts have recently granted certification for both direct and indirect purchasers on the basis of more pragmatic approaches.

In the 2013 trilogy, the SCC certified both a class of indirect purchasers, in Pro-Sys, and a mixed class of direct and indirect purchasers, in Option Consommateurs. In the former case, the SCC rejected the defendants’ arguments that the risk of double or multiple recovery, and the “remoteness” of overcharge and “complexities” associated with tracing the loss, provided reasons to bar indirect purchaser actions. The SCC noted, however, that the indirect purchasers willingly assumed the burden of establishing that they had suffered loss and that whether the evidence would suffice to meet that burden was a factual question to be decided on a case-by-case basis. 34 In the latter case, the SCC similarly rejected a “blanket application of inflexible rules” in favor of a case-by-case approach, finding that there was no risk of double recovery in the case at hand since direct and indirect purchasers would be combined in a single group that would make a single claim of aggregate loss. 35 In the third decision, Sun-Rype, the SCC rejected certification of a mixed group of direct and indirect purchasers on the basis of insufficient evidence, but confirmed its conclusions from Pro-Sys that, notwithstanding the practical challenges associated with cases involving indirect purchasers, in principle indirect purchasers have the right to bring an action. 36

Criminal penalties under “per se” hard-core cartel provisions:

The introduction in 2009 amendments to the Act of a per se criminal offense for hard-core cartel conduct such as price-fixing, output restriction and market allocation is expected to result in increased cartel prosecution and a corresponding increase in private actions. This is largely due to the lower evidential burden; formerly, an actual or likely anti-competitive effect – an “undue” lessening of competition – arising from the conspiracy had to be shown. The conspiracy amendments took effect in March 2010. The first criminal fine under the new offense was imposed in January 2012; since then, other criminal fines have been imposed against individuals and companies, in addition to sentences to imprisonment.

Expanding corporate criminal liability for cartel offenses based on “senior officer” conduct

Bill C-45, which was passed and came into force on March 31, 2004, amended the Criminal Code to provide that organizations are liable for the conduct of “senior officers.” The statutory definition of a “senior officer” includes any representative who “plays an important role in the establishment of the organization’s policies” or is responsible for managing an important aspect of the organization’s activities.” 37 While Bill C-45 did not go so far as to establish vicarious liability, it broadened the scope of corporate criminal liability by effectively replacing the traditional legal concept based on the fault of the corporation’s “directing mind(s),” the board of directors and those with the power to set corporate policy, with liability tied to the fault of all of the corporation’s “senior officers” as identified according to a functional analysis. 38

The Global Fuels case is the first to test the parameters of the corporate criminal liability provisions of the amended Criminal Code. The Quebec Superior Court held that the defendant company was guilty of cartel conduct due to its regional manager’s awareness of an illegal price-fixing strategy implemented by two of the territory managers he supervised and his failure to interfere, on the basis that the regional manager qualified as a “senior officer.” 39 The decision affirmed that the Criminal Code provisions for organizational liability as amended by Bill C-45 mark a fundamental change in the law of corporate criminal liability. 40 In April 2015, the Quebec Superior Court imposed a CAD1 million fine on the corporation. 41

Increasing importance of corporate compliance programs

The Canadian model of corporate criminal responsibility as reflected in the Global Fuels case, together with the Competition Bureau’s recently updated Corporate Compliance Programs Bulletin (the “Bulletin”), 42 place new emphasis on the importance of implementing credible and effective corporate compliance programs.

The model of corporate criminal liability established by Bill C-45 recognizes defenses based on reasonable measures taken by senior officers with respect to those under their supervision. In this respect, it has become increasingly important for organizations to assess which of their officials may qualify as “senior officers” and implement due diligence programs designed for such personnel.

The Bulletin provides guidance on designing and implementing credible and effective compliance programs for the purpose of compliance with competition law. It emphasizes a risk-based approach to compliance and expands the recommended steps (as compared to the previous version of the Bulletin) to be incorporated into a compliance program. While the Bulletin does not appear to formally recognize compliance as a possible defense, its emphasis on tailored, internally developed compliance programs for organizations of all sizes, and vigilance in assessing their effectiveness, makes clear that the Competition Bureau has high expectations for proactively managed, effective compliance programs. Further, it underscores the importance of such programs in the context of all types of contravention under the Competition Act, including those that expose businesses to fines (or administrative monetary penalties, under the civil provisions) and the recovery of damages by private parties. 37

1 RSC, 1985, c C-34.

2 In addition to private action rights under Section 36, the introduction of Section 103.1, through an amendment to the Act in 2002, expanded private enforcement by allowing private parties to seek leave to bring an application before the Tribunal in respect of certain reviewable practices under Part VII of the Act, such as refusal to deal (Section 75), price maintenance (Section 76), and exclusive dealing, tied selling and market restriction (Section 77). The leave requirement in Section 103.1 is imposed to prevent frivolous claims being brought before the Tribunal. However, the remedies available in relation to these practices are essentially limited to an order prohibiting continuation of the conduct, and in some cases taking other steps to restore competition. Damages are not available. Accordingly, this chapter focuses on proceedings brought under Section 36.

3 See, e.g., Havana House Cigar & Tobacco Merchants Ltd v Naeini, [1997] FCJ No. 1241.

4 That said, the British Columbia Court of Appeal has clarified that Section 36 of the Act is not a “replacement” for an action in common law (in that case, for unlawful means conspiracy); at the same time, to the extent that a claim derives from non-observance of the Act and nothing else, the remedy provided by Section 36 is the “sole route to recovery.” See Watson v Bank of America Corporation, [2015] BCCA 362 at paras 58–59.

5 The Act, s 36(4).

6 In dealing with most common law causes of action, it is common for the limitation period to run from the date on which the alleged misconduct was discovered. See: Limitations Act, 2002, SO 2002, c 24, Schedule B, ss 4, 15(2).

7 Garford Pty Ltd v Dywidag Systems International, Canada, Ltd, [2012] FCA 48 (CanLII). The Court of Appeal held that the offensive conduct was complete with the conclusion of the purchase agreement. The Court rejected the suggestion that the ongoing effects of the agreement or the ongoing damages caused to the claimant by the agreement extended the applicable limitation period.

8 Sun-Rype Products Ltd v Archer Daniels Midland Co, [2007] BCSC 640, varied on appeal, 2008 BCCA 278.

9 Limitations Act, 2002, SO 2002, c 24, Schedule B.

10 However, courts in this province have the ability to certify class proceedings under existing procedural rules relating to representative proceedings.

11 SO 1992, c 6.

12 Similar requirements exist in parallel provincial legislation across Canada.

13 Certification will only be denied on this ground if it is “plain and obvious” that the pleading does not disclose a reasonable cause of action. See Hunt v Carey Canada Inc, [1990] 2 SCR 959; Alberta v Elder Advocates of Alberta Society, [2011] SCC 24 at para. 20; Pro-Sys Consultants Ltd, et al v Microsoft Corporation, et al, [2013] SCC 57 Pro-Sysat para. 63.

14 CPA, s 5(1).

15 Pro-Sys; Infineon Technologies AG, et al v Option Consommateurs, et al, [2013] SCC 59 [Option Consommateurs]; Sun-Rype Products Ltd, et al v Archer Daniels Midland Company, et al, [2013] SCC 58 [Sun-Rype]. According to the SCC, actions by indirect purchasers may be brought under the Act, and indirect purchaser class actions may be certified in common law provinces and Quebec.

16 For example, in Option Consommateurs, the proposed class action asserted that the defendant microchip manufacturers failed to discharge statutory obligations under the Act and that their conduct amounted to a fault giving rise to civil liability under the Civil Code of Quebec.

17 Janelle Pharmacy Ltd v Blue Cross of Atlantic Canada, [2003] NSSC 179 at paras 95–99.

18 FH v McDougall, [2008] SCC 53.

19 Sun-Rype Products Ltd. v Archer Daniels Midland Company [2011], BCCA 187. The Court of Appeal in relied on a broad interpretation of Kingstreet Investments Ltd v New Brunswick (Department of Finance, [2007] SCC 1, a SCC decision in which the passing-on defense was rejected in the context of a claim to recover the payment of an unlawful tax.

20 See Sun-Rype at para. 37. According to the SCC in Sun-Rype Pro-Sys decision (another of the 2013 trilogy of decisions) “conclusively” answered the question of passed-on losses in confirming that “the injury suffered by indirect purchasers is recognized at law as is their right to bring actions to recover for those losses… [N]o insurmountable problem is created by allowing the claims in restitution to be brought by a class comprised of both direct and indirect purchasers. Unjustly obtained amounts are recoverable on the basis that they have been extracted at the plaintiffs’ expense.”

21 The SCC did permit claimants to access private communications of the defendants which were obtained by the Bureau through wiretapping in the course of a criminal investigation, where such evidence was ordered to be produced by the reviewing judge, in Imperial Oil v Jacques, [2014] SCC 66. The SCC explained that a Section 29 bar is subject to a court’s discretion to order disclosure.

22 Arising from the English case of Norwich Pharmacal Co v Comrs. of Customs and Excise, [1974] AC 133 (HL).

23 [2009] 307 DLR (4th) 329 (Ont SCJ).

24 [2009] 311 DLR (4th) 755 (Ont SCJ).

25 2008 NSSC 163, affirmed on appeal, 2009 NSCA 42.

26 2011 ABQB 292 (CanLII) [ExxonMobil].

27 321665 Alberta Ltd v Husky Oil Operations Ltd, [2013] ABCA 221.

28 See, e.g., Wong v Sony of Canada Ltd, [2001] 9 CPC (5th) 122 (Ont SCJ).

29 See, e.g., Mead Johnson Canada v Ross Pediatrics, [1996] OJ No. 4342.

30 See, e.g., Price v Panasonic Canada Inc., [2000] OJ No. 3123 (Ont SCJ).

31 See 1711811 Ontario Ltd v Buckley Insurance Brokers Ltd, 2014 ONCA 125 at para. 74, referring to RJR- MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311.

32 Ibid at para. 79, citing Cambie Surgeries Corp v British Columbia (Medical Services Commission), [2010] BCCA 396.

33 In contrast, in cases brought by private parties before the Tribunal under Section 103.1, behavioral orders may be made on an interim or permanent basis. For example, the Tribunal made an interim supply order requiring the Insurance Bureau of Canada to continue to supply online search applications to the Used Car Dealer Association of Ontario. See Interim Supply Order on Consent, October 20, 2011, available at

34 Pro-Sys at paras 34-45.

35 Option Consommateurs at paras 114–115.

36 Sun-Rype at paras 1, 17–20.

37 See Todd L Archibald, Kenneth E Jull and Kent W Roach, Regulatory and Corporate Liability: From Due Diligence to Risk Management (Toronto: Canada Law Book, 2014), chapter 5: “The Changing Face of Corporate and Organizational Criminal Liability.” The law now only requires proof that those who controlled the operation of the organization were criminally liable, and not necessarily those who set policy (e.g., on the board of directors or as senior executives). Notably, the amended law also extends the scope of criminal liability to all “organizations,” defined so as to include any public body, body corporate, society, company, firm, partnership, trade union or municipality.

38 R c Pétroles Global inc, [2013] QCCS 4262. The Superior Court found that the regional manager was a “senior officer” because he was responsible for the management of an important field of activity at Global Fuel, and knew of (but did not interfere in) the collusive activities of six territory managers under his supervision.

39 As confirmed in the lower court’s decision in the Global Fuels case, it is no longer necessary “to prove fault in the boardrooms or at the highest levels of a corporation: the fault even of middle managers may suffice.” R c Pétroles Global, [2012] QCCQ 5749 (CQ) at para. 75, citing Archibald, Jull and Roach (Toronto: Canada Law Book, 2004).

40 R c Pétroles Global inc, [2015] QCCS 1618.

41 Published June 3, 2015, online: The 2015 Bulletin updates and replaces an earlier version dated September 27, 2010.

42 The Bulletin, Section 2.1, “Why is Compliance Important?”