Bar Orders In Price Fixing Class Action Settlements: The Uncertainty Continues

Introduction

The Supreme Court of Canada recently dismissed an application for leave to appeal from decisions of the Ontario Court of Appeal¹ and the British Columbia Court of Appeal,² which had upheld the approval of a partial settlement reached with two out of five chocolate manufacturers against whom class actions were proposed in Ontario and British Columbia. The proposed class actions alleged a conspiracy to raise, maintain, fix and/or stabilize the price of chocolate products sold in Canada.³ The settlement agreement contained a bar order that the non-settling defendants, who sought leave to appeal, viewed as depriving them of their substantive rights to seek contribution and indemnity from the settling defendants.