In a decision that deals with numerous significant legal issues, the Ontario Court of Appeal kept the class action alive in Fanshawe College of Applied arts and Technology v. AU Optronics Corporation. The class action alleges a conspiracy to fix the price of liquid crystal displays (LCDs) and components during the period 1998 - 2006. The appeal concerned two principal motions: (1) the defendants' motion for summary judgment on a limitations argument, and (2) the plaintiffs' motion to amend the statement of claim. The motion judge dismissed the summary judgment motion, finding discoverability presented a genuine issue for trial. The motion to amend was also dismissed, with the motion judge there finding the amendment expanded the scope of the class action in a way that was statute-barred. The Court therefore dismissed the appeal of the summary judgment motion, and allowed the appeal of the motion for leave to amend the statement of claim.
On the discoverability issue, the Court of Appeal made two key holdings: (1) it did not have jurisdiction to consider the finding of a genuine issue for trial, since it was an interlocutory decision, and (2) the discoverability principle applies to the limitation period in section 36(4)(a)(i) of the Competition Act (section 36 creates a civil cause of action for breaches of Part VI of the Competition Act). On the latter issue, the Court held that discoverability applies to any statutory limitation where the lmiitation period is linked either to a plaintiff's knowledge about an event or to an event related to the plaintiff's cause of action.
Also of note, the Court of Appeal held that it is not plain and obvious that a breach of section 45 of the Competition Act (price fixing) cannot serve as the unlawful means for a civil conspiracy claim. The Court held that Parliament did not intend to preclude a claim for civil conspiracy related to price fixing, so it could support a civil conspiracy claim.
Finally, with respect to the leave to amend, the Court found that the amendment did not expand the scope of the action by adding an indirect purchaser representative plaintiff. The Court held that the statement of claim always included such purchasers. While this is a fact-specific holding, it continues a trend where the Court has been very open to amendments to statements of claim in class actions.
This decision is of particular importance in the competition field, but also is also notable for confirming that discoverability has broad application to statutory limitation periods and that a finding of a genuine issue for trial on summary judgment is only appealable with leave to the Divisional Court.