A Historical Perspective of a Made-in-Canada Remedy for Anticompetitive Behaviour

Abstract

This paper is better described as a colloquy rather than an in-depth legal treatise. It is a perspective of living through and litigating the formative years of anticompetitive class action cases in Canada. In particular, it describes the "legal quagmire" created by the US Supreme Court in antitrust cases whereby indirect purchasers (consumers) were disenfranchised at the federal court level in the US and how this legal quagmire could be avoided in Canada. The paper tracks several of the early consumer anticompetitive class action cases in Canada and in particular the Microsoft case which was successful at the certification level, lost at the British Columbia Court of Appeal level and restored by the Supreme Court of Canada. The outcome of the Microsoft case determined that contrary to the US Supreme Court, consumers can pursue damages claims for anticompetitive conduct in Canada. Hence, the US legal quagmire was avoided.