Case information

Civil procedure — Class actions — Certification — Proposed methodology for addressing common issue — Evidence — Assessment of evidence — How certification court should approach assessment of plaintiff’s evidence regarding proposed methodology for addressing common issue — Whether plaintiff must provide some evidence as to availability of data required for proposed methodology — Whether certification court should evaluate evidence relevant to certification even if it is relevant to merits of case — How certification court should deal with factual defence evidence regarding flaws in proposed methodology.

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The applicants (collectively referred to as “Nippon et al.”) are vehicle carriers who transport cars, trucks and other equipment across oceans to Canada using specialized cargo ships called “roll on/roll off” vessels. Mr. Ewert alleges that, between February 1, 1997, and December 31, 2012, Nippon et al. made illegal price fixing agreements to artificially increase the price of transport for these vehicles. Nippon et al. have all pleaded guilty and either sought amnesty or reached compromise agreements in the United States or Japan in respect of competition infractions arising from agreements as to international shipping services to North America. The extra cost was passed on to purchasers of the vehicles, resulting in overcharges. As one of the affected purchasers, Mr. Ewert wishes to recover the overpayment or a proportionate share of the benefits realized by Nippon et al. for himself and others similarly situated. The proposed class included direct and indirect purchasers of the services offered by Nippon et al., and certain other persons.

At the certification hearing, Mr. Ewert presented expert evidence that estimating the damage would require an estimate of the overcharge attributable to the collusive behaviour, and an estimate of the overcharge paid by the direct buyers that was passed to the class members. The expert proposed three possible analytical methods, and indicated that the required was usually available from statistical agencies or reports by the industry or analysts. Nippon et al. filed a responding affidavit, arguing that the class wide methodology would not reliably identify or estimate overcharges, nor determine whether the overcharges were passed to a particular buyer.

The certification judge dismissed the application to certify the action. The Court of Appeal allowed the appeal in part, certifying the action in relation to direct and indirect purchasers of the services offered by Nippon et al., but refusing it in relation to those who purchased or leased vehicles transported by carriers other than Nippon et al.