Certification In Irving Paper Signals End Of "High Water" For Defendants In Competition Class Actions

In her recent decision in Irving Paper Ltd. v. Atofina Chemicals Inc., [2009] O.J. 4051 (S.C.J.), Justice Rady of the Ontario Superior Court of Justice issued an order granting certification of a price-fixing class action involving both direct and indirect purchasers.

The representative plaintiff Irving Paper Limited, a New Brunswick-based paper mill, alleged that the defendants, FMC and Arkema Canada Inc. (a chemical company operating in the agricultural, industrial and consumer markets and a hydrogen-peroxide manufacturer) conspired to and did allocate markets, restrict supply and increase the price of hydrogen peroxide.

Hydrogen peroxide is an inorganic chemical used in many applications as a bleaching or oxidizing agent and is considered an environmentally friendly and sustainable chemical. This has led to a recent increase in its use in industrial and commercial applications, including pulp and paper, cosmetics, electronics and laundry detergent.