Contested Price-Fixing Class Action Including Indirect Purchasers Certified For First Time By A Canadian Court

On September 28, 2009, the Ontario Superior Court of Justice issued the first decision by a Canadian court in a contested case certifying a price-fixing class action on behalf of a class which includes indirect purchasers. In Irving Paper Limited et al. v. Atofina Chemicals Inc. et al., The Honourable Madam Justice Rady certified under the Ontario Class Proceedings Act (the "CPA") a class action on behalf of all persons in Canada (excluding the defendants) who purchased hydrogen peroxide, products containing hydrogen peroxide or products using hydrogen peroxide in Canada between January 1, 1994 and January 5, 2005. If left undisturbed on appeal, the decision could significantly broaden the scope in Ontario for indirect purchaser, price-fixing class actions. It could also mean that class action law in Ontario will be inconsistent with the law and practice in other Canadian jurisdictions (such as British Columbia) where courts have refused to certify proposed indirect