CANADA Law and Practice Contributed by: David Gadsden, Brendan O’Grady and Anton Rizor, Baker McKenzie
As a result, Canadian antitrust law generally permits claims by direct purchasers, indirect purchasers and umbrella purchasers, provided the claimant can dem - onstrate compensable loss or damage resulting from
ness in the province, whether the tort was commit - ted in the province, or whether a contract connected with the dispute was made there. These factors reflect jurisdiction legislation in place in numerous provinces across Canada. In competition cases, however, applying these prin - ciples is not always straightforward. Alleged anti- competitive conduct frequently occurs across multi - ple jurisdictions and may involve foreign defendants, foreign misconduct, nationwide classes, and trans - actions affecting purchasers throughout Canada. Defendants often challenge jurisdiction on the basis that the relevant conduct, decisions, or transactions took place outside the forum. Rules on Applicable Law Please see 4.4 Class Certification . Documentary disclosure in Canadian antitrust litiga - tion is governed primarily by the civil procedure rules of the court in which the action is brought. Disclosure generally follows the ordinary discovery process appli - cable to civil litigation. For example, in Ontario each party is required to serve an affidavit of documents identifying all relevant docu - ments within its possession, control or power, as well as documents for which privilege is claimed. Relevant, non-privileged documents must then be produced to the opposing parties for inspection. The scope of pro - duction is broad and may include internal communi - cations, pricing records, market analyses, communi - cations with competitors, and documents relating to alleged anti-competitive conduct or damages. 6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure Disclosure of Documents In antitrust class actions, discovery typically takes place following certification and is often subject to detailed case-management orders governing elec - tronic discovery, production schedules, custodians, and search protocols.
the impugned conduct. 4.4 Class Certification Certification of Antitrust Class Actions
Antitrust class actions must be certified (or authorised in Quebec) before they proceed as class proceedings. After commencing the action, the plaintiff brings a motion seeking an order certifying the proposed class. Subject to some nuances, in the common law prov - inces, the plaintiff must generally establish that: (i) the pleadings disclose a cause of action; (ii) there is an identifiable class of two or more persons; (iii) the claims raise common issues; (iv) a class proceeding is the preferable procedure; and (v) there is an appropri - ate representative plaintiff with a workable litigation plan. Certification is often the most heavily contested stage of an antitrust class action. The standard of proof is low. For the first requirement, the court needs to be satisfied that it is not “plain and obvious” that the pleadings fail to disclose a cause of action, even assuming the facts pleaded are true. For the remain - ing criteria, a plaintiff needs to meet a slightly higher standard and show that there is “some basis in fact” that the requirement is fulfilled. Both standards are lower than the balance of probabilities standard that would be applied at trial to determine liability and assess damages. 5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law Rules on Jurisdiction Canadian courts determine adjudicative jurisdiction principally through the framework established by the Supreme Court of Canada in Club Resorts Ltd . v Van Breda . Under Van Breda , a court may assume jurisdic - tion where there is a “real and substantial connection” between the dispute and the forum. The Court identi - fied several presumptive connecting factors, including whether the defendant is domiciled or carries on busi -
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