Toshiba Corporation, et al. v. Neil Godfrey

(British Columbia) (Civil) (By Leave)


Civil procedure - Class actions, Certification - Civil procedure - Class actions - Certification - Representative plaintiff alleging that defendants participated in price-fixing that raised prices for optical disc drives and products containing such devices - Plaintiff seeking certification of action as class proceeding - What is the required standard to certify harm as a common issue based on an economic methodology? Does the evidence of the expert in this case satisfy the standard? Do principles of remoteness or indeterminate liability circumscribe s. 36(1) of the Competition Act? Is s. 36(1) the exclusive civil remedy for breaches of Part VI of the Competition Act? .


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The respondent is a business man living in British Columbia. The defendants are manufacturers, marketers, distributors, and/or sellers of optical disc drives (ODDs) and ODD Products to customers in Canada, either directly or indirectly through affiliates or independent distributors and retailers. The respondent alleged a global price-fixing conspiracy involving ODDs and products containing such devices. He sought damages for all persons in British Columbia who purchased any such products during a six-year period from 2004 to 2010. The proposed class consisted of both direct and indirect purchasers, as well as purchasers of products that were not manufactured or supplied by the defendants (“Umbrella Purchasers”).

The judge held that the umbrella purchasers could advance a cause of action under the Competition Act.

The appeal was dismissed. The appellate court held that to have a loss certified as a common issue, it was not necessary that each class member suffered harm. Rather, the respondent must show that there is a reasonable prospect of showing that overcharges have been passed through to the indirect purchaser level. With respect to umbrella purchasers, the appellate court dismissed concerns raised by the appellants and held that the respondent would be an appropriate representative of the umbrella purchasers.