For many years, defendants resisted certification of competition
class actions primarily by arguing that determining harm to class
members defied calculation—or, at least, defied those methods
the plaintiffs typically proposed. They had little success. Between
2010 and 2019, Canadian appellate courts—including the
Supreme Court of Canada—largely rejected such arguments.
Plaintiffs and defendants responded to these appellate
decisions. Plaintiffs began filing more ambitious cases that did
not always contain all the elements of their prior successful cases
(e.g., alleged secret conspiracy, government enforcement outcome,
parallel United States class action, etc.). Defendants began
arguing that plaintiffs' cases were increasingly speculative
(even if they were not) and often did not—as a matter of
law—give rise to liability under the Competition
Act.
