Possible Change In The Canadian Landscape For Price-Fixing Class Action Certification

Two recent decisions in Ontario and British Columbia certifying class actions alleging price fixing indicate that the courts in Canada may be adopting a new approach to these types of claims, potentially opening the door to more litigation in this area. On November 12, 2009, in Pro-Sys Consultants Ltd. v. Infineon Technologies AG,¹ the British Columbia Court of Appeal reversed a lower court decision and certified a class proceeding involving allegations of a price-fixing conspiracy among producers of dynamic random access memory ("DRAM"), a memory chip used in computers and many other electronic devices. The Pro-Sys case was preceded by the decision handed down on September 28, 2009 by Justice Rady of the Ontario Superior Court of Justice, in Irving Paper Limited et al. v. Atofina Chemicals et al.,² certifying a class proceeding involving allegations of price fixing among producers of hydrogen peroxide. These are the first class actions based on a multilateral