The Supreme Court of Canada denied leave to appeal, on July 17, 2003, the decision of the Ontario Court of Appeal in Chadha v. Bayer Inc., the first case in Canada to address the use of class actions to prosecute claims by indirect purchasers. The case involved a claim by an estimated 1.1 million homeowners and other indirect purchasers of iron oxide, a pigment used to colour brick and other building materials, for damages in excess of $100 million arising from an alleged price fixing conspiracy, which was not the subject of criminal charges.
The Ontario Divisional Court overturned the original certification order and the Court of Appeal upheld the denial of certification. The Court of Appeal determined that a class action was not the preferable procedure for resolving the claims, referring to the long and complex chain of distribution and the “multitude of variables” that affected the actual price paid by a homeowner or other building owner. The decision of the Court of Appeal also comments on the evidentiary burden that indirect purchasers would have to meet to demonstrate that an alleged overcharge was actually passed on to indirect purchasers to justify certification of a class action. No reasons were given by the S.C.C. for their dismissal of the leave application.
Bayer Inc. and Bayer Corporation were represented by J.L. McDougall, Q.C., Randy Hughes and Susan Paul of Fraser Milner Casgrain LLP, and by Kent Thomson, Sandra Forbes and Matthew Milne-Smith of Davies Ward Phillips & Vineberg LLP. The plaintiffs were represented by Paul Pape in Toronto, and Joel Rochon and Vincent Genova of Rochon Genova in Toronto.
The Ontario Divisional Court overturned the original certification order and the Court of Appeal upheld the denial of certification. The Court of Appeal determined that a class action was not the preferable procedure for resolving the claims, referring to the long and complex chain of distribution and the “multitude of variables” that affected the actual price paid by a homeowner or other building owner. The decision of the Court of Appeal also comments on the evidentiary burden that indirect purchasers would have to meet to demonstrate that an alleged overcharge was actually passed on to indirect purchasers to justify certification of a class action. No reasons were given by the S.C.C. for their dismissal of the leave application.
Bayer Inc. and Bayer Corporation were represented by J.L. McDougall, Q.C., Randy Hughes and Susan Paul of Fraser Milner Casgrain LLP, and by Kent Thomson, Sandra Forbes and Matthew Milne-Smith of Davies Ward Phillips & Vineberg LLP. The plaintiffs were represented by Paul Pape in Toronto, and Joel Rochon and Vincent Genova of Rochon Genova in Toronto.
