In a judgment rendered June 8, 2010, the Ontario Superior Court dismissed a motion by FMC Corporation and FMC of Canada, Ltd. (collectively, FMC) for leave to appeal a September 28, 2009 decision certifying a class action. The motion was supported by Arkema Inc., Arkema Canada Inc. and Arkema S.A. (collectively, Arkema). Both FMC and Arkema were among the defendants in the class action proceeding.

The class action was brought on behalf of all persons in Canada who purchased hydrogen peroxide products between 1994 and 2005. The plaintiffs alleged that the defendants, manufacturers and sellers of hydrogen peroxide, conspired to and did fix the prices for hydrogen peroxide. According to the Ontario Superior Court, the main issue on the certification motion was the extent to which the causes of action required proof of individual loss or damage.

In the class action proceeding, the plaintiffs and the defendants had presented expert evidence to address the question of whether damages could be estimated on a class-wide basis. The methodology proposed by the plaintiffs’ expert was heavily criticized by the defendants. In considering the motion for leave to appeal, the Superior Court stated that it was not the certification judge’s obligation to determine the merits of these opinions, but rather to decide whether the evidence demonstrated the existence of a viable methodology for proving loss on a class-wide basis. The Court reiterated that the purpose of the certification stage of a class action was to determine whether the requirements under section 5(1) of the Class Proceedings Act, 1992 were met and if so, to define the issues to be tried.

The Court concluded that the certification judge had properly considered all of the evidence in order to find some basis in fact for each of the class action certification requirements, despite the fact that she had interpreted key case law in a different way, and that there was no reason to doubt the correctness of the certification order. Although the Court accepted that the requirement of public importance was met on the leave motion, it dismissed the motion for leave to appeal.