Court Refuses To Certify Canadian Price-Fixing Case

For many years, it was next to impossible to certify a price-fixing class action in Canada. Today, certification is so common that refusals to certify are the rare exception. Ewert v Nippon Yusen Kabushiki Kaisha, 2017 BCSC 2357 [Ewert], is such an exception. While the threshold for certification in Canada is low, the court emphasized that certification was not a "'file, smile and certify' exercise." It refused to certify the case owing to the plaintiff's failure to demonstrate the availability of key data inputs for its econometric methodology.

The plaintiff's allegations in Ewert followed a typical pattern for price-fixing cases. The defendants operated roll-on/roll-off vessels used to transport vehicles and heavy equipment to Canada. The plaintiff claimed that the defendants had fixed shipping prices, resulting in higher costs for the Canadian class members who purchased the imported vehicles. Several defendants had pleaded guilty to price-fixing charges in the