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Class Actions (Ont) - Certification - 'Identifiable Class' [CPA 5(1)(b)]. David v. Loblaw Companies Limited ['identifiable class' 5(1)(b)]
In David v. Loblaw Companies Limited (Div Court, 2024) the Divisional Court considered (and dismissed) an appeal of a case conference order that 'settled' terms of a larger class action certification order, here grounded in Competition Act law.
Here, the lower court (upheld on appeal) illustrates the operation of the CPA s.5(1)(b) ['identifiable class'] step:[17] In addressing whether the proposed class of plaintiffs met the “identifiable class” threshold under s. 5(1)(b) of the CPA, the motions judge stated, at paras. 58-59, that:58 The class as originally framed by the Plaintiffs consists of people who purchased packaged bread sold by a Defendant producer or retailer or manufactured by a Defendant producer and sold by either a non-Defendant retailer or an intermediary. When the Supreme Court of Canada ruled in Godfrey [Pioneer Corp. v. Godfrey, 2019 SCC 42] that the cause of action under s. 36 of the Competition Act could include consumers who experienced umbrella price effects from a price-fixing conspiracy, the claim was amended to include them as well.
59 The Statement of Claim now embraces people who purchased packaged bread that was neither produced or nor sold by the alleged conspirators. It also includes people who purchased fresh bread from the retail Defendants and people who purchased fresh bread from the largest non-Defendant retailers in Canada (Federated Co-Operatives Ltd., The North-West Company, Overwaitea Food Group, H Mart, Buy Low Food Ltd., Longo Brothers Fruit Markets Inc., Costco Wholesale Canada Ltd., or Quality Foods). [Emphasis added.] [18] In deciding to exclude the Umbrella Classes, the motions judge stated, at paras. 66-67:66 In general, a class satisfies the requirement of section 5(1)(b) of the CPA if members of the class can be identified using objective criteria to determine membership: Robertson v Thomson Corp (1999), 1999 CanLII 14768 (ON SC), 43 OR (3d) 161, at para 25 (Gen Div). The proposed class members need not have identical claims or interests, but the court must be satisfied that the claims will be advanced by the resolution of the common issues: Sankar v Bell Mobility, 2013 ONSC 5916, at para 57. This includes the claims of indirect purchasers, whose inclusion in the action promote the deterrence and compensation objectives of the Competition Act: Pro-Sys, [Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57] at paras 46-49. As indicated above, it theoretically also includes umbrella purchasers who have experienced the price impact of the Defendants' alleged acts by being purchasers in the impacted market: Godfrey, at para 108.
67 The proposed class meets the rather minimal criteria for certification set out in section 5(1)(b) of the CPA. Under the circumstances, however, it will be limited to the direct and indirect purchasers of packaged bread and will exclude purchasers of fresh bread and all of the proposed umbrella classes. While those excluded umbrella purchasers are theoretically capable of being members of a consumer class, the facts of the case do not support it. This will be explained more fully below under the analysis of common issues. The claim, as it currently stands, is not supported by a record that evidences any methodology capable of dealing with the claims of umbrella purchasers as defined by Plaintiffs' counsel. [Emphasis added.]
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