The British Columbia Supreme Court (Court) recently dismissed the plaintiff’s application for class certification in Ewert v. Nippon Yusen Kabushiki Kaisha (Ewert), holding that certification is not simply a “file, smile and certify” exercise in which defendants can be forced into onerous and complex class action litigation on a “wing and a prayer”, without meeting the low threshold required. The plaintiff in Ewert alleged that the defendant shipping companies engaged in anti-competitive pricing practices that harmed the purchasers of vehicles and heavy equipment. Justice Myers refused to grant certification, finding that the plaintiff had failed to establish that harm could be shown on a class-wide basis in accordance with the requirements of section 4(1)(c) of the Class Proceedings Act.

BACKGROUND

The plaintiff alleged that the defendants overcharged vehicle and heavy equipment manufacturers to ship their vehicles to Canadian distributors on the defendants’ “roll-on/roll-off” maritime vessels. These distributors sold the vehicles to dealers and large fleet owners such as car rental companies. In turn, the dealers sold the vehicles to consumers. The plaintiff asserted that the defendants’ overcharges had been passed down the distribution chain to consumers and asserted claims based on alleged breaches of the Competition Act, civil conspiracy, and unjust enrichment. He proposed a class consisting of the dealers and the ultimate purchasers of the vehicles.

CERTIFICATION DECISION

The main issue on the certification application in Ewert was whether the plaintiff had established a credible and plausible economic methodology to establish loss or harm on a class-wide basis. The plaintiff’s expert’s proposed methodology relied in part on data that the expert said “should be possible” to obtain or which “might” exist in public or other sources. Neither the plaintiff nor his expert fully identified those sources. The defendants’ expert opined that the plaintiff’s expert had not presented a valid methodology to determine class-wide loss, and that such a methodology cannot be developed.

Justice Myers did not reject the plaintiff’s methodology itself, noting that to dismiss the plaintiff’s expert’s methodology would be to engage in a battle of the experts at certification. However, Justice Myers found that the plaintiff had failed to provide evidence that some of the necessary data exists. The court needs to have some confidence that there is a realistic prospect that there is a credible and plausible model to determine harm commonly. There is a difference between data expected to come from the defendants and data from other sources, including public ones. The court should be given some identification of the other sources and the expert should have at least a cursory look at the data to ensure its potential applicability. In the absence of some evidence that the data exists, the plaintiff’s expert’s proposed methodology is ultimately purely theoretical.

Justice Myers emphasized that he was not subjecting the plaintiff’s expert’s opinion to “rigorous scrutiny”, merely some scrutiny. The certification process is meant to involve more than symbolic scrutiny. As Justice Myers put it, it is not merely a “file, smile and certify” exercise. Defendants should not be required to engage in the onerous discovery process of a complex class action on the basis of a “wing and a prayer” that harm might ultimately be shown on a class-wide basis when the proper steps have not been taken to meet the low threshold required.

Furthermore, Justice Myers declined to certify claims made by “umbrella purchasers” (who purchased vehicles carried on roll-on/roll-off vehicle carriers other than those of the defendants) and for purchasers of “high and heavy” equipment (such as buses, trucks, agricultural and construction vehicles). The plaintiff’s expert did not provide a basis to assume that the proposed econometric models could be applied to umbrella purchasers. Similarly, Justice Myers found that the high and heavy equipment business is different, and it was incumbent upon the plaintiff to show that the same methodology is workable.

CONCLUSION

The Court’s decision in Ewert confirms that where a plaintiff seeks to certify class-wide harm as a common issue using an econometric model, there must be some basis in fact not only that the methodology is credible and plausible in theory, but also that the necessary data exists to put it into practice. This evidence will be scrutinized by the court, as the certification process is not a mere formality.