Pioneer Corporation, Pioneer North America, Inc., Pioneer Electronics (USA) Inc., Pioneer High Fidelity Taiwan Co., Ltd. v. Pioneer Electronics of Canada Inc., 2019 SCC 42

SUPREME COURT OF CANADA Citation: Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295 Appeals Heard: December 11, 2018 Judgment Rendered: September 20, 2019 Docket s: 37809, 37810 Between: Pioneer Corporation, Pioneer North America, Inc., Pioneer Electronics (USA) Inc., Pioneer High Fidelity Taiwan Co., Ltd. and Pioneer Electronics of Canada Inc. Appellants and Neil Godfrey Respondent And Between: Toshiba Corporation, Toshiba Samsung Storage Technology Corp., Toshiba Samsung Storage Technology Corp.

Korea, Toshiba of Canada Ltd., Toshiba America Information Systems, Inc., Samsung Electronics Co., Ltd., Samsung Electronics Canada Inc., Samsung Electronics America, Inc., Koninklijke Philips Electronics N.V., Lite-On IT Corporation of Taiwan, Philips & Lite-On Digital Solutions Corporation, Philips & Lite-On Digital Solutions USA, Inc., Philips Electronics Ltd., Panasonic Corporation, Panasonic Corporation of North America, Panasonic Canada Inc., BENQ Corporation, BENQ America Corporation and BENQ Canada Corp.

Appellants and Neil Godfrey Respondent - and - Option consommateurs, Consumers Council of Canada, Canadian Chamber of Commerce and Consumers’ Association of Canada Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Reasons for Judgment: (paras. 1 to 123) Brown J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Rowe and Martin JJ. concurring) Reasons Dissenting in Part: (paras. 124 to 239) Côté J. Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295 Pioneer Corporation, Pioneer North America, Inc., Pioneer Electronics (USA) Inc., Pioneer High Fidelity Taiwan Co., Ltd. and Pioneer Electronics of Canada Inc. Appellants v. Neil Godfrey Respondent - and - Toshiba Corporation, Toshiba Samsung Storage Technology Corp., Toshiba Samsung Storage Technology Corp.

Korea, Toshiba of Canada Ltd., Toshiba America Information Systems, Inc., Samsung Electronics Co., Ltd., Samsung Electronics Canada Inc., Samsung Electronics America, Inc., Koninklijke Philips Electronics N.V., Lite-On IT Corporation of Taiwan, Philips & Lite-On Digital Solutions Corporation, Philips & Lite-On Digital Solutions USA, Inc., Philips Electronics Ltd., Panasonic Corporation, Panasonic Corporation of North America, Panasonic Canada Inc., BENQ Corporation, BENQ America Corporation and BENQ Canada Corp. Appellants v. Neil Godfrey Respondent and

Option consommateurs, Consumers Council of Canada, Canadian Chamber of Commerce and Consumers’ Association of Canada Interveners Indexed as: Pioneer Corp. v. Godfrey 2019 SCC 42 File Nos.: 37809, 37810. 2018: December 11; 2019: September 20.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal for british columbia Civil procedure — Class actions — C ertification — Plaintiff alleging that defendants conspired to fix prices of optical disc drives and related products — Plaintiff’s action certified as class proceeding — Class membership including direct purchasers, indirect purchasers and umbrella purchasers — Whether umbrella purchasers have cause of action under Competition Act — Whether Competition Act bars plaintiff from bringing common law or equitable claims — Whether plaintiff’s proposed questions relating to loss suffered by class members meet standard for certification as common issues — Competition Act, R.S.C. 1985, c.

C-34, s. 36(1) — Class Proceedings Act, R.S.B.C. 1996, c. 50, s. 4(1) . Limitation of actions — Competition Act setting out limitation period of two years from day on which conduct was engaged in — Action brought against some defendants more than two years after alleged conduct occurred — Whether action against those defendants barred by statutory limitation period — Whether discoverability rule or doctrine of fraudulent concealment applies to extend statutory limitation period — Competition Act, R.S.C. 1985, c. C-34, s. 36(4) .

The proposed representative plaintiff applied for certification of a class proceeding under the British Columbia Class Proceedings Act . The plaintiff alleges that the defendants, who manufacture Optical Disc Drives (“ODDs”) and ODD products, conspired to fix prices of ODDs and ODD products between 2004 and 2010 (“class period”). He advances various causes of action based on that alleged conduct. They include a cause of action under s. 36(1) (

a) of the Competition Act , which allows for the recovery of damages or loss that resulted from conduct contrary to

Part VI of the Competition Act , as well as common law and equitable claims. The plaintiff seeks to bring the proposed class proceeding on behalf of all British Columbia residents who purchased an ODD or an ODD product during the class period. The proposed class consists of direct purchasers, indirect purchasers, and umbrella purchasers, that is, purchasers whose ODD or ODD product was manufactured and supplied by a non-defendant.

Although the action against most of the defendants was filed within two years of the end of the class period, the action against a subset of the defendants (“Pioneer defendants”) was filed more than two years after the end of the class period. The certification judge certified the action as a class proceeding, subject to certain exceptions and conditions. He was not satisfied that it was plain and obvious that the action against the Pioneer defendants was barred by the two-year limitation period set out in s. 36(4) of the Competition Act .

He also held that the umbrella purchasers had a cause of action against the defendants under s. 36(1) (

a) of the Competition Act , that a breach of the Competition Act could represent the unlawfulness element of the various causes of action advanced by the plaintiff, thereby affirming the availability of those common law and equitable actions, and that the plaintiff’s proposed questions in relation to loss suffered by the class were certifiable as common questions. The Court of Appeal dismissed the appeals brought by the defendants. Held (Côté J. dissenting in part): The appeals should be dismissed.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ.: It is not plain and obvious that the plaintiff’s claim against the Pioneer defendants will fail on the basis that it was commenced after the two-year limitation period in s. 36(4) (a)(

i) of the Competition Act because the discoverability rule applies to extend the limitation period. As for the inclusion of umbrella purchasers, the pleadings against all the defendants disclose a cause of action for them under s. 36(1) (

a) of the Competition Act , thereby satisfying the conditions under s. 4(1) (

a) of the Class Proceedings Act for certification. Also, as s. 36(1) of the Competition Act does not bar common law or equitable claims, it is not plain and obvious that the plaintiff’s other claims cannot succeed. Furthermore, the certification judge identified the correct standard to certify commonality of loss as a common issue and there is no basis to interfere with his certification of these loss-related questions.

Where a limitation period is subject to the rule of discoverability, a cause of action will not accrue for the purposes of the running of the limitation period until the material facts on which the cause of action is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence. The discoverability rule is not a universally applicable rule of limitations, but a rule of construction to aid in the

interpretation of statutory limitation periods. It can therefore be displaced by clear legislative language. In determining whether discoverability applies, substance, not form, is to prevail: even where the statute does not explicitly state that the limitation period runs from “the accrual of the cause of action”, discoverability applies if it is evident that the operation of a limitation period is conditioned upon accrual of a cause of action or knowledge of an injury.

Discoverability will apply where the event triggering the limitation period is an element of the cause of action because, in such cases, the legislature has shown its intention that the limitation period be linked to the cause of action’s accrual. The discoverability rule applies to extend the two-year limitation period in s. 36(4) (a)(

i) of the Competition Act , such that it begins to run only when the material facts on which the cause of action granted by s. 36(1) (

a) of the Competition Act is based are

discovered or ought to have been discovered by the exercise of reasonable diligence. The event triggering this particular limitation period is the occurrence of an element of the underlying cause of action — specifically, conduct contrary to

Part VI of the Competition Act . Consideration of the rationales for limitation periods affirms the application of the discoverability rule to this provision. Furthermore, it is not plain and obvious that the doctrine of fraudulent concealment could not delay the running of the limitation period. Fraudulent concealment is a form of equitable fraud that arises so as to delay the running of a limitation period when it would be, for any reason, unconscionable for the defendant to rely on the advantage gained by having concealed the existence of a cause of action.

The inquiry is not into the relationship within which the conduct occurred, but into the unconscionability of the conduct itself. Its application is therefore not conditioned upon a special relationship between the parties. Umbrella purchasers have a cause of action under s. 36(1) (

a) of the Competition Act . Under the theory of umbrella pricing, the entire market for the subject product is affected because anti-competitive cartel activity causes non-cartel manufacturers to also raise their prices. The text of s. 36(1) (a), which provides a cause of action to “[a]ny person who has suffered loss or damage as a result of” conduct contrary to s. 45 of the Competition Act , supports the view that umbrella purchasers have a cause of action thereunder. Parliament’s use of the words “[a]ny person” empowers any claimant who can demonstrate that loss or damage was incurred as a result of a defendant’s conduct to bring a claim. Also, interpreting s. 36(1) (

a) so as to permit umbrella purchaser actions furthers the purpose of the Competition Act set out in s. 1.1 , which is to “maintain and encourage competition in Canada” with a view to providing consumers with “competitive prices and product choices”. This

interpretation also furthers two other objectives of the Competition Act : it furthers the objective of deterrence because it increases the potential liability falling upon those who engage in anti-competitive behaviour, and it furthers the objective of compensation because it affords umbrella purchasers recourse to recover from loss arising from what is assumed to have been anti-competitive conduct. Moreover, departmental and parliamentary statements fortify the view that Parliament intended that the cause of action in s. 36(1) (

a) be broadly available to anyone who suffers a loss from anti-competitive behaviour. Recognizing that umbrella purchasers have a cause of action under s. 36(1) (

a) does not risk exposing defendants to indeterminate liability. Firstly, liability of defendants is limited by the class period, and by the specific products whose prices are alleged to have been fixed. Also, in order for cartel members to profit from a conspiracy, the entire market price has to increase — the umbrella effect is therefore an intended consequence of the anti-competitive behaviour. Intended results are not indeterminate, but rather pre- determined. Secondly, as s. 36(1) (

a) limits recovery to only those purchasers who can show that they suffered a loss or damage “as a result of” a defendant’s conspiratorial conduct, recovery is limited to claimants with a loss that is not too remote from the conduct and umbrella purchasers will have to demonstrate that they suffered such loss or damage. Thirdly, the elements of the wrongful conduct outlined in the text of s. 45(1) in force at the relevant time limit the reach of liability to those who, at a minimum, specifically intend to agree upon anti-competitive conduct.

Section 36(1) of the Competition Act does not bar common law or equitable claims, such as claims in civil conspiracy. Prior to the enactment of the cause of action contained in what is now s. 36(1) of the Competition Act , a breach of s. 45(1) of the Competition Act was, as it still is, able to satisfy the “unlawful means” element of the tort of civil conspiracy. The enactment of the statutory cause of action in s. 36(1) of the Competition Act did not oust common law and equitable actions by its express terms or by necessary implication.

Section 36(1) is not duplicative of the tort of civil conspiracy, it does not provide a new and superior remedy, nor does it represent a comprehensive and exclusive code regarding claims for anti-competitive conspiratorial conduct. In addition, s. 62 of the Competition Act contemplates the subsistence of common law and equitable rights of action. It is therefore not plain and obvious that the plaintiff is precluded from bringing common law and equitable causes of action alongside his s. 36(1) (

a) claim. In order for loss-related questions to be certified as common issues, a plaintiff’s expert’s methodology need only be sufficiently credible or plausible to establish that loss reached the requisite purchaser level. It is not necessary that it establish that each and every class member suffered a loss nor must it be able to identify those class members who suffered no loss so as to distinguish them from those who did. In Pro-Sys Consultants Ltd. v.

Microsoft Corporation , 2013 SCC 57 , [2013] 3 S.C.R. 477, the Court directed that, for a court to certify loss-related questions as common issues in a price-fixing class proceeding, it must be satisfied that the plaintiff has shown a plausible methodology to establish that loss reached one or more claimants at the purchaser level. For indirect purchasers, this would involve demonstrating that the direct purchasers passed on the overcharge.

Additionally, showing that loss reached the indirect purchaser level satisfies the criteria for certifying a common issue, since it will significantly advance the litigation, is a prerequisite to imposing liability upon the defendants and will result in common success. Showing loss reached the requisite purchaser level will advance the claims of all the purchasers at that level, because a common issues trial will either determine liability or terminate the litigation, with either scenario advancing the litigation toward resolution. Aggregate damages under s. 29(1) (

b) of the Class Proceedings Act are purely remedial, and available only after all other common issues have been determined, including liability. Irrespective, then, of whether aggregate damages are certified as a common issue, it is for the trial judge to determine, following the common issues trial, whether the statutory criteria are met such that the aggregate damages provisions can be applied to award damages. Aggregate damages provisions cannot be used to establish liability.

In order for individual class members to participate in the award of damages, the trial judge must be satisfied that each has actually suffered a loss where proof of loss is essential to a finding of liability (as it is for liability under s. 36 of the Competition Act ). Whether a plaintiff’s expert’s methodology is sufficient for the purposes of establishing a defendant’s liability to all class members will depend on the findings of the trial judge. Per Côté J. (dissenting in part): Both appeals should be allowed in part.

The Pioneer defendants have not demonstrated that the plaintiff’s claim for recovery under s. 36(1) of the Competition Act is time-barred by the limitation period in s. 36(4) (a)(i). While the discoverability rule does not apply to toll the limitation period, it is not plain and obvious that the fraudulent concealment doctrine has no application in this case.

There is agreement with the majority, though for different reasons, that the existence of the statutory cause of action in s. 36(1) of the Competition Act does not preclude the plaintiff from advancing claims at common law or in equity based on the same conduct prohibited by

Part VI. However, there is disagreement that the umbrella purchasers have a claim against the defendants under s. 36(1) of the Competition Act . There is also disagreement that the certification judge identified the correct standard for certifying loss as a common issue pursuant to s. 4(1) (

c) of the Class Proceedings Act and therefore that the plaintiff’s methodology met the correct standard in the present case.

The discoverability rule does not apply to toll the limitation period in s. 36(4) (a)(

i) of the Competition Act that is applicable to the plaintiff’s claim for recovery under s. 36(1) of that statute . Discoverability is a judge-made rule of statutory

interpretation that assists in determining whether the event triggering the commencement of a limitation period depends upon the state of the plaintiff’s knowledge. This rule applies only where a legislature provides that the limitation period runs from the accrual of the cause of action (or wording to that effect) or from the occurrence of some event that is related to the state of the plaintiff’s knowledge.

Conversely, where a legislature provides that a limitation period is triggered by an event that occurs without regard to the plaintiff’s state of mind, courts cannot apply the discoverability rule to postpone the commencement of the limitation period until such time as the plaintiff discovered that the event had taken place. Statutory language referring to the occurrence of an element of the cause of action cannot be equated with language referring to the accrual or arising of the cause of action in its entirety such that the discoverability rule automatically applies in the former case.

This would expand the scope of the discoverability rule in a manner that is neither consistent with precedent nor justifiable in principle and would create an arbitrary distinction between triggering events that are related to the cause of action and those that are not, even though both may occur independently of the plaintiff’s state of mind. A preferable approach is instead one that considers each statutory limitation clause on its own terms, recognizing that a triggering event that relates to a cause of action can, but need not, be dependent on the plaintiff’s state of mind.

The limitation period in s. 36(4)(a)(

i) commences on the day on which the conduct contrary to

Part VI of the Competition Act actually takes place and not the day on which a potential claimant discovers that it took place. There is simply no link between the triggering event and the plaintiff’s state of mind. The provision does not contain wording to the same effect as accrual of the s. 36 cause of action. Applying discoverability would make the limitation period chosen by Parliament virtually meaningless and create uncertainty around the likelihood and timing of significant litigation.

A special relationship between the parties — one that is based on trust and confidence — is not always a prerequisite or a necessary element for the operation of the doctrine of fraudulent concealment. This doctrine operates to prevent a limitation clause from being used as an instrument of injustice in circumstances where a defendant conceals the facts giving rise to a potential cause of action from a plaintiff. In such circumstances, equity suspends the running of the limitation clock until the injured party can reasonably discover the cause of action.

Fraud in equity is broader than it is at common law and what constitutes unconscionable conduct will vary from case to case and depend in part on the connection between the parties. Based on this understanding of the fraudulent concealment doctrine, it is not plain and obvious that equity can intervene to toll the applicable limitation period only in cases where there exists a special relationship; it may be that it can also intervene in cases — at least in the commercial context, as here — where the plaintiff can demonstrate something commensurate with or tantamount to a special relationship.

However, simply establishing the existence of the conspiracy will not suffice for the fraudulent concealment doctrine to toll the applicable limitation period. It is plain and obvious that the claims by umbrella purchasers — those class members who purchased from a non-defendant a product that was not manufactured or supplied by a defendant — under s. 36(1) (

a) of the Competition Act cannot succeed. While on its face, s. 36(1) appears to be worded broadly enough to capture umbrella purchaser claims, so long as they can prove that they suffered loss or damage as a result of the conduct specified in para. (

a) or (

b) of subs. (1), this statutory provision must be interpreted in a manner that is consistent with the principles of indeterminacy and remoteness that limit the extent of liability at common law. Indeterminacy is a policy consideration that negates the imposition of a duty of care in negligence where it would expose the defendant to liability in an indeterminate amount for an indeterminate time to an indeterminate class and remoteness limits the scope of liability in negligence where the harm is too unrelated to the wrongful conduct to hold the defendant fairly liable.

Although these principles relate primarily to liability in negligence, they can inform the analysis of claims under s. 36 for pure economic loss. Section 36(1) should not be interpreted in a manner that would permit claimants to recover from defendants for any losses that in some way flowed from the alleged price-fixing conspiracy as it would expose defendants to liability that is potentially limitless in scope for loss and damage that are too remote from any price-fixing that occurred.

Consistent with the principles underlying indeterminacy and remoteness, the cause of action in s. 36(1) should be read as limiting the scope of liability of defendants to loss and damage flowing from their own pricing decisions, not those of third parties. Any overcharges the umbrella purchasers may have incurred in the present case were the direct result of pricing decisions made by non-defendant manufacturers and suppliers of ODDs, regardless of whether those choices were influenced by broader market trends. The defendants have control over their own business decisions but not over those of third parties.

For this reason, it would be unfair to hold the defendants liable to the umbrella purchasers where they had no control over such liability. It is not plain and obvious that s. 36(1) bars a plaintiff from alleging common law and equitable causes of action in respect of conduct that breaches the prohibitions in

Part VI of the Competition Act . The coexistence of statutory and common law or equitable claims arising from conduct contrary to

Part VI of the Competition Act is contemplated by s. 62 of that statute. The inclusion of s. 62 in the statutory framework suggests that Parliament did not intend the provisions of the Competition Act to intrude upon the provinces’ jurisdiction over civil rights and liberties. That s. 62 applies only to

Part VI of the Competition Act is not consequential as the cause of action created by s. 36(1) (

a) is expressly tied to conduct that would constitute an offence under that part. When the words of s. 62 are read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the act and the intention of Parliament, this provision has the effect of preserving all civil rights of action that a claimant may have in respect of anti- competitive conduct contemplated under

Part VI of that Act.

Section 62 would be meaningless if s. 36(1) were interpreted as exhaustive in respect of civil claims for such conduct. For questions to be certified as common issues under s. 4(1) (

c) of the Class Proceedings Act , the representative plaintiff must show there is some basis in fact for the commonality requirement — that is, that the questions be capable of resolution on a class- wide basis. What the “some basis in fact” standard requires in any given case depends on what it is that the proposed questions ask; different questions will impose different requirements.

In class actions where loss is an essential element of liability, loss-related questions can be certified as common issues only if the representative plaintiff’s expert methodology will be able to actually identify which class members suffered a loss at trial. In the present case, in order for loss-related questions to be certified as common issues among indirect purchasers pursuant to s. 4(1) (

c) of the Class Proceedings Act , the representative plaintiff’s proposed methodology must be capable of establishing at trial that at least some identifiable indirect purchasers actually suffered a loss. The plaintiff has not met the required standard in the present case

because his methodology is only capable of establishing at trial that loss was occasioned somewhere at the indirect purchaser level of thedistribution chain. Such a methodology will not enable the common issues trial judge to determine which class members actuallysuffered a loss — an essential element of the causes of action pleaded, and necessary for the purpose of making determinations as toliability. The proposed loss-related questions will therefore not be capable of resolution on a class-wide or common basis.

What isrequired of the plaintiff in this case is a methodology capable of answering the loss-related questions on an individualized basis, either byshowing that all of the indirect purchasers suffered a loss or at least by identifying those who did and separating them from those who didnot. Cases Cited By Brown J. Applied: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477; referred to: Watson v.Bank of America Corp., 2015 BCCA 362, 79 B.C.L.R. (5th) 1; Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53; Alberta v.

ElderAdvocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158; CentralTrust Co. v. Rafuse, (SCC), [1986] 2 S.C.R. 147; Peixeiro v. Haberman, (SCC), [1997] 3 S.C.R. 549;Ermineskin Indian Band and Nation v. Canada, 2006 FCA 415, [2007] 3 F.C.R. 245, aff’d 2009 SCC 9, [2009] 1 S.C.R. 222; Bowes v.Edmonton (City), 2007 ABCA 347, 425 A.R. 123; Fehr v. Jacob (1993), (MB CA), 14 C.C.L.T. (2d) 200; M. (K.) v.M. (H.), (SCC), [1992] 3 S.C.R. 6; Burt v.

LeLacheur, 2000 NSCA 90, 189 D.L.R. (4th) 193; Rizzo & Rizzo Shoes Ltd.(Re), (SCC), [1998] 1 S.C.R. 27; Fanshawe College of Applied Arts and Technology v. AU Optronics Corp., 2016ONCA 621, 132 O.R. (3d) 81; Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335; Kitchen v. Royal Air ForcesAssociation, [1958] 2 All E.R. 241; T.P. v. A.P., 1988 ABCA 352, 92 A.R. 122; Performance Industries Ltd. v. Sylvan Lake Golf &Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678; Shah v. LG Chem, Ltd., 2015 ONSC 6148, 390 D.L.R. (4th) 87; Kone AG andOthers v. ӦBB-Infrastruktur AG, [2014] EUECJ C-557/12; Fairhurst v.

Anglo American PLC, 2014 BCSC 2270; Pro-Sys ConsultantsLtd. v. Infineon Technologies AG, 2009 BCCA 503, 98 B.C.L.R. (4th) 272; Irving Paper Ltd. v. Atofina Chemicals Inc. (2009), (ON SC), 99 O.R. (3d) 358; Crosslink Technology Inc. v. BASF Canada, 2014 ONSC 1682, 54 C.P.C. (7th) 111; Shah v.LG Chem, Ltd., 2018 ONCA 819, 142 O.R. (3d) 721; Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, [2013] 3S.C.R. 600; Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58, [2013] 3 S.C.R. 545; R. v. Imperial TobaccoCanada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; R. c.

Proulx, 2016 QCCA 1425; Proprietary Articles Trade Association v. AttorneyGeneral for Canada, (UK JCPC), [1931] A.C. 310; International Brotherhood of Teamsters v. Therien, (SCC), [1960] S.C.R. 265; Gagnon v. Foundation Maritime Ltd., (SCC), [1961] S.C.R. 435; Cement LaFarge v. B.C.Lightweight Aggregate, (SCC), [1983] 1 S.C.R. 452; A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12,[2014] 1 S.C.R. 177; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, (SCC), [1990] 1 S.C.R. 1298; Western Canadian Shopping Centres Inc. v.

Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534; Vivendi CanadaInc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3; Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666. By Côté J. (dissenting in part) M. (K.) v. M. (H.), (SCC), [1992] 3 S.C.R. 6; Central Trust Co. v. Rafuse, (SCC), [1986] 2S.C.R. 147; Peixeiro v. Haberman, (SCC), [1997] 3 S.C.R. 549; Fehr v. Jacob (1993), (MB CA), 14C.C.L.T. (2d) 200; Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53; Fanshawe College of Applied Arts and Technology v.

AUOptronics Corp., 2016 ONCA 621, 132 O.R. (3d) 81; Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, [2018] 3 S.C.R.189; Snow v. Kashyap (1995), (NL CA), 125 Nfld. & P.E.I.R. 182; General Motors of Canada Ltd. v. City NationalLeasing, (SCC), [1989] 1 S.C.R. 641; Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R.801; CCS Corp. v. Secure Energy Services Inc., 2014 ABCA 96, 575 A.R. 1; Laboratoires Servier v. Apotex Inc., 2008 FC 825, 67C.P.R. (4th) 241; Garford Pty Ltd. v.

Dywidag Systems International, Canada, Ltd., 2010 FC 996, 88 C.P.R. (4th) 7; Eli Lilly and Co. v.Apotex Inc., 2009 FC 991, 80 C.P.R. (4th) 1; Fairview Donut Inc. v. The TDL Group Corp., 2012 ONSC 1252; Giroux Estate v. TrilliumHealth Centre (2005), (ON CA), 74 O.R. (3d) 341; Kitchen v. Royal Air Forces Association, [1958] 2 All E.R. 241;Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd.,2002 SCC 19, [2002] 1 S.C.R. 678; First City Capital Ltd. v. B.C. Building Corp. (1989), (BC SC), 43 B.L.R. 29;McMaster University v.

Wilchar Construction Ltd. (1971), (ON SC), 22 D.L.R. (3d) 9; Bell ExpressVu LimitedPartnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967; McLean v. British Columbia(Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board),2006 SCC 4, [2006] 1 S.C.R. 140; Ultramares Corp. v. Touche, 174 N.E. 441 (1931); Mustapha v. Culligan of Canada Ltd., 2008 SCC27, [2008] 2 S.C.R. 114; Taylor v. 1103919 Alberta Ltd., 2015 ABCA 201, 602 A.R. 105; Pro-Sys Consultants Ltd. v.

MicrosoftCorporation, 2013 SCC 57, [2013] 3 S.C.R. 477; Associated General Contractors v. Carpenters, 459 U.S. 519 (1983); Shah v. LG Chem,Ltd., 2015 ONSC 6148, 390 D.L.R. (4th) 87; Shah v. LG Chem, Ltd., 2017 ONSC 2586, 413 D.L.R. (4th) 546; R. v. Imperial TobaccoCanada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Blue Shield of Virginia v. McCready, 457 U.S. 465 (1982); Illinois Brick Co. v. Illinois,431 U.S. 720 (1977); Canadian National Railway Co. v. Norsk Pacific Steamship Co., (SCC), [1992] 1 S.C.R. 1021;Shah v. LG Chem, Ltd., 2018 ONCA 819, 142 O.R. (3d) 721; R. v. Proulx, 2016 QCCA 1425; Gendron v.

Supply and Services Union ofthe Public Service Alliance of Canada, Local 50057, (SCC), [1990] 1 S.C.R. 1298; Westfair Foods Ltd. v. Lippens Inc.(1989), (MB CA), 64 D.L.R. (4th) 335; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2S.C.R. 534; Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214; Sun-Rype Products Ltd. v. ArcherDaniels Midland Company, 2013 SCC 58, [2013] 3 S.C.R. 545; Pro-Sys v. Microsoft, 2010 BCSC 285. Statutes and Regulations Cited Budget Implementation Act, 2009, S.C. 2009, c. 2, s. 410.

Class Proceedings Act, R.S.B.C. 1996, c. 50, ss. 1, 4(1), Division 2, 29 to 34, 37(1). Clayton Act, 15 U.S.C. § 15, s. 4.

Combines Investigation Act , R.S.C. 1970, c. C-23. Competition Act , R.S.C. 1985, c. C-34, ss. 1.1 , 36 ,

Part VI, 45, 52, 62. Highway Traffic Act , R.S.O. 1990, c. H.8, s. 206(1) . Land Titles Act , R.S.A. 2000, c. L-4 . Limitation Act , S.B.C. 2012, c. 13, ss. 6 to 8 , 21 . Limitation of Actions Act , S.N.B. 2009, c. L-8.5, s. 5 . Limitation of Actions Act , S.N.S. 2014, c. 35, s. 8 . Limitations Act , R.S.A. 2000, c. L-12, s. 3(1) . Limitations Act , R.S.O. 1970, c. 246, s. 45(1). Limitations Act , S.S. 2004, c. L-16.1, ss. 5 to 7 . Limitations Act, 2002 , S.O. 2002, c. 24, Sch. B, ss. 4 , 5 , 15 . Securities Act , R.S.O. 1990, c. S.5, s. 138.14 . Statute of Limitations , R.S.B.C. 1960, c. 370, s. 3.

Survival of Actions Act , R.S.N.L. 1990, c. S-32, s. 5 . Authors Cited Canada. Competition Bureau of Canada. Competitor Collaboration Guidelines . Gatineau, December 2009. Canada. Consumer and Corporate Affairs. Proposals for a New Competition Policy for Canada: First Stage . Ottawa, 1973. Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Finance, Trade and Economic Affairs , Issue No. 45, 1st Sess., 30th Parl., May 8, 1975, p. 45:18. Driedger, Elmer A. Construction of Statutes , 2nd ed. Toronto: Butterworths, 1983. Eizenga, Michael A., et al.

Class Actions Law and Practice , 2nd ed. Toronto: LexisNexis, 2009 (loose-leaf updated March 2019, release 55). Inderst, Roman, Frank P. Maier-Rigaud, and Ulrich Schwalbe. “Umbrella Effects” (2014), 10 J. Competition L. & Econ. 739. Linden, Allen M., et al. Canadian Tort Law , 11th ed. Toronto: LexisNexis, 2018. Mew, Graeme, Debra Rolph, and Daniel Zacks. The Law of Limitations , 3rd ed. Toronto: LexisNexis, 2016. Spry, I. C. F. The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages , 9th ed. Pyrmont, N.S.W.: Lawbook Co., 2014. Sullivan, Ruth.

Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: LexisNexis, 2014. Veel, Paul-Erik. Waiting forever for the axe to drop? Discoverability and the limitation period for Competition Act claims , Lenczner Slaght , August 12, 2016 (online: https://litigate.com/waiting-forever-for-the-axe-to-drop-discoverability-and-the-limitation-period-for- competition-act-claims/pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC42_eng.pdf ). Winkler, Warren K., et al. The Law of Class Actions in Canada , Toronto: Thomson Reuters, 2014.

Wright, Kevin, Todd Shikaze, and Emily Snow. “On the ‘Level’ After Godfrey : Proving Liability in Canadian Price Fixing Class Actions” (2017), 12 C.A.D.Q. 13. APPEALS from a judgment of the British Columbia Court of Appeal (Newbury, Groberman and Savage JJ.A.), 2017 BCCA 302 , 1 B.C.L.R. (6th) 319, [2017] 12 W.W.R. 448, [2017] B.C.J. No. 1618 (QL), 2017 CarswellBC 2245 (WL Can.), affirming a decision of Masuhara J., 2016 BCSC 844 , [2016] B.C.J. No. 979 (QL), 2016 CarswellBC 1313 (WL Can.). Appeals dismissed, Côté J. dissenting in part. W. Michael G.

Osborne , Brigeeta Richdale and Jessica Lewis , for the appellants Pioneer Corporation, Pioneer North America, Inc., Pioneer Electronics (USA) Inc., Pioneer High Fidelity Taiwan Co., Ltd. and Pioneer Electronics of Canada Inc. Laura F. Cooper and Vera Toppings , for the appellants Toshiba Corporation, Toshiba Samsung Storage Technology Corp., Toshiba Samsung Storage Technology Corp. Korea, Toshiba of Canada Ltd. and Toshiba America Information Systems, Inc. Robert E.

Kwinter and Evangelia ( Litsa) Kriaris , for the appellants Samsung Electronics Co., Ltd., Samsung Electronics Canada Inc. and Samsung Electronics America, Inc.

Neil Campbell, Joan Young and Samantha Gordon, for the appellants Koninklijke Philips Electronics N.V., Lite-On ITCorporation of Taiwan, Philips & Lite-On Digital Solutions Corporation, Philips & Lite-On Digital Solutions USA, Inc. and PhilipsElectronics Ltd. John F. Rook, Q.C., Christiaan A. Jordaan and Emrys Davis, for the appellants Panasonic Corporation, PanasonicCorporation of North America and Panasonic Canada Inc. Stephen Fitterman, for the appellants BENQ Corporation, BENQ America Corporation and BENQ Canada Corp. Reidar M. Mogerman, Linda J. Visser, David G. A. Jones, Charles M. Wright, Katie I.

Duke and Bridget M. R. Moran, forthe respondent. Maxime Nasr and Violette Leblanc, for the intervener Option consommateurs. Jonathan J. Foreman and Jean-Marc Metrailler, for the intervener the Consumers Council of Canada. Sandra A. Forbes and Adam Fanaki, for the intervener the Canadian Chamber of Commerce. Jean-Marc Leclerc and Mohsen Seddigh, for the intervener the Consumers’ Association of Canada. The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ. was delivered by Brown J. — I.

Introduction [1] The proposed representative plaintiff, Neil Godfrey, applied for certification of a class proceeding under the BritishColumbia Class Proceedings Act, R.S.B.C. 1996, c. 50. The defendants manufacture Optical Disc Drives (“ODDs” — a memory storagedevice that uses laser light or electromagnetic waves near the light spectrum to read and/or record data on optical discs), and ODDproducts (products that contain ODDs). Godfrey alleges that the defendants conspired to fix prices of ODDs and ODD products. [2] The certification judge granted Godfrey’s application.

Two sets of defendants — one led by Pioneer Corporation,and the other by Toshiba Corporation — each appealed from that decision, unsuccessfully, to the British Columbia Court of Appeal. Atstake in these appeals is, principally, whether it is plain and obvious that the claim under s. 36(1)(

a) of the Competition Act, R.S.C. 1985,c. C-34, of so-called “umbrella purchasers” who bought ODDs or ODD products manufactured and supplied by someone other than thedefendants, but who allege that the defendants’ price-fixing conduct raised the market price of the product, cannot succeed. This dependson whether these umbrella purchasers have a cause of action under s. 36(1)(a). For the reasons that follow, I agree with the courts belowthat they do, and it therefore follows that it is not plain and obvious that their claim cannot succeed. [3] These appeals also present an occasion to clarify the operation of the statutory limitation period for claims under s.36(1)(

a) of the Competition Act, to affirm the availability of common law and equitable actions in respect of claims also brought under s.36(1)(

a) of the Competition Act, and to reiterate the standard required to certify loss-related questions as common issues in classproceedings. [4] As I will explain below, my disposition of all these matters would lead me to dismiss the appeals. II. Background [5] Godfrey applied for certification of a class proceeding against 42 defendants (collectively, “Toshiba”), alleging aconspiracy to raise, maintain, fix and/or stabilize the price of ODDs between January 1, 2004 and January 1, 2010 (“class period”).

Hedeposed that he purchased ODD products during the class period, and that he seeks to bring the proposed class proceeding on behalf ofall British Columbia residents who purchased an ODD or an ODD product during the class period. The proposed class consists of: (

a) direct purchasers, whose ODD or ODD product was manufactured or supplied by a defendant and purchased from thatdefendant, (

b) indirect purchasers, whose ODD or ODD product was manufactured or supplied by a defendant and purchased from anon-defendant; and (

c) umbrella purchasers, whose ODD or ODD product was manufactured and supplied by a non-defendant. III. Judicial History A. British Columbia Supreme Court, 2016 BCSC 844 — Masuhara J. [6] The certification judge certified the action as a class proceeding, subject to certain exceptions and conditions (para.221 ). One condition was that the class definition be amended so as to satisfy s. 4(1)(

b) of the Class Proceedings Act. Thecertification judge held that the class definition (“[a]ll persons resident in British Columbia who purchased [ODDs and ODD products]in [the class period]”) was insufficiently precise, as it was unclear which products were included (paras. 128-31). [7] In his reasons, the certification judge resolved a number of matters, only two of which are relevant to these appeals:whether the pleadings disclose a cause of action, and whether Godfrey’s proposed questions relating to loss suffered by the class arecertifiable as common questions.

(1) Do the Pleadings Disclose a Cause of Action? [ 8 ] The certification judge first considered whether Godfrey’s pleadings satisfy s. 4(1) (

a) of the Class Proceedings Act , which conditions certification upon the pleadings disclosing a cause of action. (

a) The Pioneer Claim [ 9 ] A subset of the named defendants (“Pioneer”) opposed Godfrey’s certification application, arguing that the action was bound to fail because it was barred by the two-year limitation period in s. 36(4) of the Competition Act (although the action against the other defendants was filed on September 27, 2010, the action against Pioneer was not filed until August 16, 2013). The certification judge held, however, that this argument could not be considered at the certification stage (para. 46).

Further, it was not plain and obvious in any event that the limitation period could not be extended in this case by applying principles of discoverability or fraudulent concealment. (

b) Umbrella Purchasers [ 10 ] Toshiba argued that the umbrella purchasers had no cause of action under s. 36(1) (

a) of the Competition Act , because their inclusion would expose it to indeterminate liability. For four reasons, however, the certification judge held that the umbrella purchasers had a cause of action: 1. While “allowing umbrella claims is inconsistent with restitutionary law”, restitutionary law does not determine the scope of the Competition Act claims, since s. 36 exists to compensate for losses, not to restore wrongful gains (para. 73). 2.

The possibility of indeterminate liability does not militate against affording umbrella purchasers a cause of action, since the defendants’ liability exposure, while significant, would not be indeterminate (paras. 75-76). 3. While umbrella claims expose the defendants to liability for the pricing decisions of non-defendants, the pricing decisions of non-defendants, under the theory of umbrella effects, are not truly “independent” (para. 77). 4.

The umbrella purchaser claims would further the goals of the Competition Act , including compensation and deterrence (para. 78). (c) “Unlawfulness” Element [ 11 ] The certification judge then considered Toshiba’s argument that a breach of the Competition Act could not constitute the “unlawful” element of civil causes of action, such as the tort of unlawful means conspiracy (para. 83). He held that he was bound by Watson v. Bank of America Corp. , 2015 BCCA 362 , 79 B.C.L.R. (5th) 1, such that it could.

While, for other reasons, the pleadings did not disclose a cause of action for the unlawful means tort, Godfrey was permitted to amend his pleadings (paras. 109-10). And, while finding that Godfrey’s pleadings did disclose a cause of action in civil conspiracy (both predominant purpose conspiracy and unlawful means conspiracy), unjust enrichment and waiver of tort (paras. 100, 102, 115 and 119), the certification judge also found that the umbrella purchasers’ claims in unjust enrichment and waiver of tort were bound to fail (paras. 116 and 120).

(2) Do the Claims Raise Common Issues? [ 12 ] Godfrey sought to have 25 questions certified as common questions under s. 4(1) (

c) of the Class Proceedings Act (several of which related to loss alleged to have been suffered by the proposed class (para. 143)). Godfrey’s expert, Dr. Keith Reutter, opined that (1) all the proposed class members would have been impacted by Toshiba’s alleged conspiracy, and (2) there are methods available to estimate any overcharge that resulted from the alleged conspiracy, as well as aggregate damages (paras. 151-52). Some of the defendants, however, retained their own expert, Dr.

James Levinsohn, who opined that it would not be possible to determine the fact of injury for the proposed class members using common evidence and analysis (para. 153). [ 13 ] After examining Dr. Reutter’s opinion in detail, the certification judge concluded that his was a plausible methodology which satisfied the standard set in Pro-Sys Consultants Ltd. v. Microsoft Corporation , 2013 SCC 57 , [2013] 3 S.C.R. 477, for evidence to support certifying loss as a common issue.

Specifically, it could establish that overcharges were passed on to the indirect purchaser level (paras. 167 and 179). [ 14 ] The certification judge therefore certified all of the common issues with respect to the direct purchasers and indirect purchasers, except those relating to the unlawful means tort (para. 199). With respect to the umbrella purchasers, he certified all of the common issues except those relating to the unlawful means tort, unjust enrichment, waiver of tort (para. 200) and aggregate damages (para. 188). B.

British Columbia Court of Appeal, 2017 BCCA 302 , 1 B.C.L.R. (6th) 319 — per Savage J.A. [ 15 ] Pioneer appealed, arguing the certification judge erred in holding: (1) that the limitation period defence cannot be considered at the certification stage; (2) that it is not plain and obvious that the discoverability rule never applies to the limitation period in s. 36(4) (a)(

i) of the Competition Act ; and (3) that it is not plain and obvious that the doctrine of fraudulent concealment cannot toll the limitation period in this case (para. 45). [ 16 ] Toshiba also appealed, arguing the certification judge erred by: (1) recasting the standard for certifying loss as a

common issue; (2) holding that a breach of s. 45 of the Competition Act can furnish the “unlawfulness” element for common law actions; and (3) allowing the umbrella purchasers’ causes of action to proceed (para. 44). [ 17 ] The Court of Appeal dismissed both sets of appeals.

(1) Pioneer’s Appeal [ 18 ] Agreeing with the certification judge, the Court of Appeal held that limitations arguments should, generally, not be considered at the certification stage. Further, and that aside, the limitations issue in this case was “intimately connected with the facts of the alleged conspiracy” and should be reserved for trial (paras. 67-68). Alternatively, were discoverability properly considered at the certification stage, it would not be plain and obvious that discoverability does not apply to delay the running of the limitation period in s. 36(4) (a)(

i) of the Competition Act . While recognizing that some courts have declined to apply discoverability to s. 36(4) (a)(i) (para. 72), the Court of Appeal read this Court’s decision in Ryan v. Moore , 2005 SCC 38 , [2005] 2 S.C.R. 53, as directing that discoverability applies where the limitation period is explicitly linked to the injured party’s knowledge or the basis of the cause of action (para. 89). [ 19 ] Further, the certification judge was correct, said the Court of Appeal, to conclude that it is not plain and obvious that the doctrine of fraudulent concealment could not apply (para. 110).

Equitable fraud was sufficient to invoke the doctrine, and a purely commercial relationship could support the requirement for a “special relationship” (paras. 102-3) between the parties so as to toll the applicable limitation period. Accordingly, Godfrey’s failure to plead a “special relationship” would not preclude the doctrine’s application here (para. 104).

(2) Certifying Loss as a Common Issue [ 20 ] Toshiba argued that, since Dr. Reutter’s proposed methodology could neither demonstrate that loss was suffered by each class member nor identify the class members who did not suffer harm, the certification judge erred in certifying questions relating to harm as common questions (para. 113).

It also saw error in the certification judge’s reference (at para. 169) to the Class Proceedings Act ’s aggregate damages provisions as supporting the possibility of liability, even where some class members have not demonstrated actual loss. [ 21 ] The Court of Appeal rejected these arguments, noting that Microsoft allows loss to be certified as a common issue if “the methodology [is] able to establish that the overcharges have been passed on to the indirect-purchaser level in the distribution chain” (para. 149, citing Microsoft , at para. 115 ).

Certifying an issue as common does not create an ultimate right to recovery; it is merely a procedural step that does not change the substantive rights of the parties (para. 158). And, while the aggregate damages provisions in the Class Proceedings Act are applicable only once liability is established, they do indeed demonstrate that the statute contemplates recovery where certain class members have not proven that they suffered loss (paras. 160-61).

(3) Unlawfulness Element [ 22 ] The Court of Appeal agreed with the certification judge that a breach of s. 45 of the Competition Act could represent the unlawfulness element of the various causes of action advanced by Godfrey (para. 186).

(4) The Umbrella Purchasers [ 23 ] Here, too, the Court of Appeal found no error in the certification judge’s reasons. Umbrella purchasers have a cause of action under s. 36(1) (

a) of the Competition Act based on a breach of s. 45(1) (paras. 247-48). Toshiba’s arguments that the certification judge did not expressly consider whether the umbrella purchasers have claims at common law, and that the certification judge erred in his

interpretation of s. 36, were rejected (paras. 188-89). [ 24 ] Finally, the Court of Appeal agreed with the certification judge that Toshiba’s concerns about indeterminate liability did not support denying certification of the umbrella purchasers’ claims. An action under s. 36(1) (

a) based on a breach of s. 45(1) is subject to internal limitations within ss. 36(1) and 45(1) which address indeterminacy such that it does not arise as a concern in this case (paras. 230-31). Further, Toshiba’s additional potential liability to the umbrella purchasers would be significantly less, relative to its potential liability to non-umbrella purchasers (para. 236). IV. Issues on Appeal [ 25 ] Pioneer’s appeal raises the issue of whether it is plain and obvious that the claim against it will not succeed because it is statute-barred by s. 36(4) (a)(

i) of the Competition Act . In answering this question, we must decide: 1. whether the principle of discoverability applies to the limitation period in s. 36(4) (a)(

i) of the Competition Act ; and 2. whether, for fraudulent concealment to toll the limitation period in s. 36(4) (a)(

i) of the Competition Act , a special relationship between the parties must be established. [ 26 ] The appeals, taken together, raise three common issues: 1. whether it is plain and obvious that the umbrella purchasers’ claim under s. 36(1) (

a) of the Competition Act cannot succeed; 2. whether it is plain and obvious that s. 36(1) of the Competition Act bars a plaintiff from bringing concurrent common law and equitable claims; and

3. the required standard to certify loss as a common issue, and whether Dr. Reutter’s evidence satisfies that standard. V. Analysis [27] Section 4(1) of the Class Proceedings Act contains the requirements for certification of a class proceeding in BritishColumbia. At issue is whether Godfrey has satisfied s. 4(1)(a), which requires that the pleadings disclose a cause of action, and s.4(1)(c), which requires that the claims of the class members raise common issues.

The former requirement is satisfied unless, assumingall the facts pleaded to be true, it is plain and obvious that the plaintiff’s claim cannot succeed (Alberta v. Elder Advocates of AlbertaSociety, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 20; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 25;Microsoft, at para. 63).

The latter is satisfied where there is “some basis in fact” to support a common issue (Hollick, at para. 25;Microsoft, at paras. 99-100). [28] Although at certification the plaintiff must satisfy s. 4(1)’s requirements that I have just described, the standard ofreview on appeal for each particular question depends on the nature of the question, and will be identified in turn. A.

Pioneer’s Appeal [29] Noting that the alleged conspiracy is said to have ended on January 1, 2010, and that the action against Pioneer wasnot commenced until August 16, 2013, Pioneer argues that Godfrey’s claim is statute-barred, as it was commenced after the two-yearlimitation period in s. 36(4)(a)(

i) of the Competition Act expired. As I will explain, I agree that the discoverability rule applies to extendthe limitation period in s. 36(4)(a)(i). It is not plain and obvious that Godfrey’s claim against Pioneer will fail on this basis. Although it istherefore unnecessary to opine on whether the doctrine of fraudulent concealment would apply, I take this opportunity to briefly discusswhy its application is not conditioned upon a special relationship between the parties. [30] Determining whether discoverability applies to the limitation period in s. 36(4)(a)(

i) is a question of law subject to astandard of correctness, as is the question of whether fraudulent concealment requires a special relationship to be established between theparties. The applicability of either doctrine is, however (and as noted by the Court of Appeal), “bound up in the facts” and must be left tothe trial judge to decide (C.A. reasons, at para. 68).

(1) Discoverability (

a) Limitation Periods Run From the Accrual or Knowledge of the Cause of Action [31] This Court has recognized that limitation periods may be subject to a rule of discoverability, such that a cause ofaction will not accrue for the purposes of the running of a limitation period until “the material facts on which [the cause of action] isbased have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence” (Central Trust Co.v.

Rafuse, (SCC), [1986] 2 S.C.R. 147, at p. 224; Ryan, at paras. 2 and 22). [32] This discoverability rule does not apply automatically to every limitation period. While a “rule”, it is not a universallyapplicable rule of limitations, but a rule of construction to aid in the

interpretation of statutory limitation periods (Peixeiro v. Haberman, (SCC), [1997] 3 S.C.R. 549, at para. 37). It can therefore be displaced by clear legislative language (Ermineskin IndianBand and Nation v. Canada, 2006 FCA 415, [2007] 3 F.C.R. 245, at para. 333, aff’d 2009 SCC 9, [2009] 1 S.C.R. 222). In this regard,many provincial legislatures have chosen to enact statutory limitation periods that codify, limit or oust entirely discoverability’sapplication, particularly in connection with ultimate limitation periods (see, e.g., Limitations Act, 2002, S.O. 2002, c. 24, Sch.

B, ss. 4, 5and 15; Limitations Act, R.S.A. 2000, c. L-12, s. 3(1); Limitation Act, S.B.C. 2012, c. 13, ss. 6 to 8 and 21; The Limitations Act, S.S.2004, c. L-16.1, ss. 5 to 7; Limitation of Actions Act, S.N.B. 2009, c. L-8.5, s. 5; Limitation of Actions Act, S.N.S. 2014, c. 35, s. 8; seealso Bowes v.

Edmonton (City), 2007 ABCA 347, 425 A.R. 123, at paras. 146-58). [33] Further, absent legislative intervention, the discoverability rule applies only where the limitation period in questionruns from the accrual of the cause of action, or from some other event that occurs when the plaintiff has knowledge of the injurysustained: In my opinion, the judge-made discoverability rule is nothing more than a rule of construction. Whenever a statute requires anaction to be commenced within a specified time from the happening of a specific event, the statutory language must be construed.

Whentime runs from “the accrual of the cause of action” or from some other event which can be construed as occurring only when the injuredparty has knowledge of the injury sustained, the judge-made discoverability rule applies. But, when time runs from an event whichclearly occurs without regard to the injured party’s knowledge, the judge-made discoverability rule may not extend the period thelegislature has prescribed. [Emphasis added.] (Fehr v. Jacob (1993), (MB CA), 14 C.C.L.T. (2d) 200 (Man. C.A.), at para. 22, cited in Peixeiro, at para. 37.) [34] Two points flow from this statement.

First, where the running of a limitation period is contingent upon the accrual of acause of action or some other event that can occur only when the plaintiff has knowledge of his or her injury, the discoverabilityprinciple applies in order to ensure that the plaintiff had knowledge of the existence of his or her legal rights before such rights expire(Peixeiro, at para. 39). [35] Secondly (and conversely), where a statutory limitation period runs from an event unrelated to the accrual of thecause of action or which does not require the plaintiff’s knowledge of his or her injury, the rule of discoverability will not apply.

In Ryan,for example, this Court held that discoverability did not apply to s. 5 of the Survival of Actions Act, R.S.N.L. 1990, c. S-32, which statedthat an action against a deceased could not be brought after one year from the date of death. As the Court explained (para. 24):

The law does not permit resort to the judge-made discoverability rule when the limitation period is explicitly linked by the governinglegislation to a fixed event unrelated to the injured party’s knowledge or the basis of the cause of action. [Emphasis added; citationomitted.] By tying, then, the limitation period to an event unrelated to the cause of action, and which did not necessitate the plaintiff’s knowledgeof an injury, the legislature had clearly displaced the discoverability rule (Ryan, at para. 27). [36] In determining whether a limitation period runs from the accrual of a cause of action or knowledge of the injury, suchthat discoverability applies, substance, not form, is to prevail: even where the statute does not explicitly state that the limitation periodruns from “the accrual of the cause of action”, discoverability will apply if it is evident that the operation of a limitation period is, insubstance, conditioned upon accrual of a cause of action or knowledge of an injury.

Indeed, clear statutory text is necessary to oust itsapplication. In Peixeiro, for example, this Court applied the discoverability rule to s. 206(1) of the Highway Traffic Act, R.S.O. 1990, c.H.8, which stated that an action must be commenced within two years of the time when “damages were sustained” (para. 2).

The use ofthe phrase “damages were sustained” rather than “when the cause of action arose” was a “distinction without a difference”, as it wasunlikely that the legislature intended that the limitation period should run without the plaintiff’s knowledge (para. 38). [37] It is therefore clear that the “the judge-made discoverability rule will apply when the requisite limitation statuteindicates that time starts to run from when the cause of action arose (or other wording to that effect)” (G. Mew, D. Rolph and D. Zacks,The Law of Limitations (3rd ed. 2016), at p. 103 (emphasis added)).

And, while my colleague Côté J. claims to disagree with myanalysis, I am fortified by the endorsement in her reasons of this formulation of discoverability (paras. 140 and 149). [38] The issue raised by this appeal is what constitutes sufficiently clear legislative expression in this regard, such thatdiscoverability will apply. In my view, where the event triggering the limitation period is an element of the cause of action, thelegislature has shown its intention that the limitation period be linked to the cause of action’s accrual, such that discoverability willapply. As this Court stated in M. (K.) v.

M. (H.), (SCC), [1992] 3 S.C.R. 6, the accrual of a cause of action is a“gradatio[n]” (p. 34). Where all the elements of a cause of action occur simultaneously, the cause of action accrues contemporaneouslywith the occurrence of each element (M. (K.), at p. 34). Where, however, the occurrence of each element is separated in time, the accrualof the cause of action is a continuing (but not continual) process.

That is, the cause of action will continue to accrue as each element ofthe cause of action occurs. [39] This was what the Court in Ryan was referring to when it said that discoverability does not apply where the limitationperiod “is explicitly linked by the governing legislation to a fixed event unrelated to the injured party’s knowledge or the basis of thecause of action” (para. 24 (emphasis added)). In Ryan, discoverability did not apply because the action was “complete in all its elements”before the operation of the event triggering the limitation period (para. 18).

The limitation period was not dependent upon the accrual ofthe cause of action and thus the limitation period would begin to run independent of the accrual of the cause of action (see Ryan, atparas. 16, 18, 20, 29 and 32). Citing the trial judge with approval, the Court added this: The fact of death is of no relevance to the cause of action in question. It is not an element of the cause of action and is not requiredto complete the cause of action.

Whatever the nature of the cause of action, it is existing and complete before the Survival of Actions Actoperates, in the case of a death, to maintain it and provide a limited time window within which it must be pursued.

The fact of the deathis irrelevant to the cause of action and serves only to provide a time from which the time within which to bring the action is to becalculated. [Emphasis added; para. 32.] [40] Had, however, the event triggering the limitation period been an element of the cause of action, or had it beenrequired to occur before the cause of action could accrue, discoverability could apply (Ryan, at paras. 29-30, citing Burt v. LeLacheur,2000 NSCA 90, 189 D.L.R. (4th) 193).

I do not see my colleague Côté J. as disagreeing on this point: she is quite right when she saysthat “the words ‘basis of the cause of action’ in para. 24 of Ryan should be understood as essentially synonymous with the ‘arising oraccrual of the cause of action’” (para. 148).

As this Court held in Peixeiro, where the limitation period is based on an event that can beconstrued as synonymous with the accrual of the cause of action, discoverability will apply (para. 38). [41] From all this, it is evident that discoverability continues to apply where the legislature has shown its intent that alimitation period shall run from “when the cause of action arose (or other wording to that effect)” or where the event triggering thelimitation period requires the plaintiff’s knowledge of his or her injury (Mew et al., at p. 103).

Conversely, discoverability does not applywhere that triggering event does not depend on the plaintiff’s knowledge or is independent of the accrual of the cause of action. This isnot, as my colleague suggests, a modified test for discoverability (reasons of Côté J., at para. 154), but rather is the product of thisCourt’s application of Fehr in Peixeiro (regarding when discoverability does apply) and Ryan (regarding when discoverability does notapply). (

b) The Statutory Scheme, and the Objects of Statutory Limitation Periods [42] Bearing in mind that, as I have explained, the discoverability rule is a rule of construction, its application depends onan examination of the pertinent statutory text to assess what triggers the running of the limitation period in question, supplemented byconsideration of the statutory scheme within which it operates, and of the legislature’s purpose in enacting limitation periods (Rizzo &Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21). [43] Turning first to the statutory text, the relevant provisions of s. 36 of the Competition Act state: 36

(1) Any person who has suffered loss or damage as a result of (

a) conduct that is contrary to any provision of

Part VI, . . .

. . . may, in any court of competent jurisdiction, sue for and recover from the person who engaged in the conduct or failed to comply with the order an amount equal to the loss or damage proved to have been suffered by him, together with any additional amount that the court may allow not exceeding the full cost to him of any investigation in connection with the matter and of proceedings under this section. . . .

(4) No action may be brought under subsection (1), (

a) in the case of an action based on conduct that is contrary to any provision of

Part VI, after two years from (

i) a day on which the conduct was engaged in, or (ii) the day on which any criminal proceedings relating thereto were finally disposed of, whichever is the later; . . . . . . [ 44 ] The text of s. 36(4)(a)(

i) provides that no action may be brought under s. 36(1)(

a) after two years from a day on which conduct contrary to

Part VI occurred. From this, it is clear that the event triggering this particular limitation period is an element of the underlying cause of action. That is, the limitation period in s. 36(4) (a)(

i) is triggered by the occurrence of an element of the underlying cause of action — specifically, conduct contrary to

Part VI of the Competition Act . Therefore, it is subject to discoverability ( Fanshawe College of Applied Arts and Technology v. AU Optronics Corp. , 2016 ONCA 621 , 132 O.R. (3d) 81, at para. 18 ). [ 45 ] The scheme of s. 36(4) also supports the view that discoverability was intended to apply to the limitation period in s. 36(4)(a)(i). Section 36(4)(

a) sets out two limitation periods — s. 36(4)(a)(i), which runs from the day on which the conduct occurred and s. 36(4)(a)(ii), which runs from the day on which criminal proceedings are disposed of. The applicable limitation period is whichever event occurs later. Pioneer argues that Parliament enacted s. 36(4)(a)(ii) to revive a cause of action where the limitation period has expired under s. 36(4) (a)(i), which revival would mitigate any unfairness created by the operation of the limitation period in s. 36(4) (a)(i) (A.F. (Pioneer), at para. 92). I do not view s. 36(4) (a)(ii)’s operation in this way.

It is simply an example of a limitation period to which discoverability does not apply because, as the Court of Appeal for Ontario said in Fanshawe , the event triggering the limitation period under s. 36(4) (a)(ii) — the disposition of criminal proceedings — is “not connected to a plaintiff’s cause of action or knowledge” (para. 47). When s. 36(4)(a)(

i) is contrasted with s. 36(4)(a)(ii), it is likely that Parliament intended that discoverability apply to the former limitation period and not the latter. Further, where criminal proceedings are not brought against a wrongdoer, the putative mitigating effect of s. 36(4)(a)(ii) would be of no assistance to plaintiffs whose right of action has expired by operation of s. 36(4)(a)(i). [ 46 ] So much for the statutory text and scheme.

I turn, then, to consider this limitation period’s relation to the overall object of the Competition Act , which is to “maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy . . . and . . . provide consumers with competitive prices and product choices” ( Competition Act , s. 1.1 ). Anti-competitive agreements — which represent “conduct that is contrary to . . .

Part VI” (s. 36(1)(a)) — are invariably conducted through secrecy and deception ( Fanshawe , at para. 46; C.A. reasons, at para. 93), meaning that they are, by their very nature, unknown to s. 36(1) (

a) claimants. Parliament would have known this when enacting the limitation provision contained in s. 36(4)(a)(i). It would therefore be absurd, and would render the cause of action granted by s. 36(1) (

a) almost meaningless, to state that Parliament did not intend for discoverability to apply, such that the plaintiff’s right of action would expire prior to his or her acquiring knowledge of the anti-competitive behaviour. I agree with the Court of Appeal that “it cannot be said that Parliament intended to accord such little weight to the interests of injured plaintiffs in the context of alleged conspiracies so as to exclude the availability of the discoverability rule in s. 36(4)” (C.A. reasons, at para. 93). [ 47 ] The application of discoverability to the limitation period in s. 36(4)(a)(

i) is also supported by the object of statutory limitation periods. This Court has recognized that three rationales underlie limitation periods ( M. (K.) , at pp. 29-31), which courts must consider in deciding whether the discoverability rule applies to a particular limitation period. The first is that limitation periods foster certainty , in that “[t]here comes a time . . . when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations”( M. (K.) , at p. 29).

This concern must be balanced against the unfairness of allowing a wrongdoer to escape liability while the victim of injury continues to suffer the consequences ( M. (K.) , at p. 29). The second rationale is evidentiary : limitation periods are intended to help prevent evidence from going stale, to the detriment of the plaintiff or the defendant ( M. (K.) , at p. 30). Finally, limitation periods serve to encourage diligence on the part of plaintiffs in pursuing their claims ( M. (K.) , at p. 30).

[48] Consideration of these rationales for limitation periods affirms discoverability’s application here. Even recognizingthat shorter limitation periods indicate that Parliament put a premium on the certainty that comes with a limitation statute’s function ofrepose (Peixeiro, at para. 34), balancing all of the competing interests underlying s. 36(4)(a)(

i) weighs in favour of applyingdiscoverability. The ability of plaintiffs to advance claims for loss arising from conduct contrary to

Part VI of the Competition Actoutweighs defendants’ interests in barring them, especially where such conduct is, as I have already noted, concealed from plaintiffs(Fanshawe, at para. 46) (such that the evidentiary rationale — that is, the concern about evidence going “stale” — has no place in theanalysis). To hold otherwise would create perverse incentives, encouraging continued concealment of anti-competitive behaviour untilthe two-year limitation period has elapsed. It would therefore not only bar plaintiffs from pursuing their claims, but reward concealmentthat has been “particularly effective” (Fanshawe, at para. 49). [49] In contrast, applying discoverability to s. 36(4)(a)(

i) would not unduly affect the defendant’s interests, asdiscoverability does not excuse the plaintiff from moving matters along, such that the rationale of encouraging diligence is still served(Peixeiro, at para. 39).

Where plaintiffs sleep on their rights or otherwise do not diligently pursue their claims, discoverability will notoperate to extend the limitation period (Mew et al., at p. 83). [50] For all of these reasons, I find that the discoverability rule applies to the limitation period in s. 36(4)(a)(i), such that itbegins to run only when the material facts on which Godfrey’s claim is based were discovered by him or ought to have been discoveredby him by the exercise of reasonable diligence.

(2) Fraudulent Concealment [51] In light of my finding that discoverability applies to s. 36(4)(a)(i), it is, strictly speaking, unnecessary to consider thedoctrine of fraudulent concealment. Given, however, the submissions and attention given to this issue at the courts below, I willcomment briefly here on whether fraudulent concealment requires establishing a special relationship between the parties. [52] Fraudulent concealment is an equitable doctrine that prevents limitation periods from being used “as an instrument ofinjustice” (M. (K.), at pp. 58-59).

Where the defendant fraudulently conceals the existence of a cause of action, the limitation period issuspended until the plaintiff discovers the fraud or ought reasonably to have discovered the fraud (Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335, at p. 390). It is a form of “equitable fraud” (Guerin, at p. 390; M. (K.), at pp. 56-57), which is not confinedto the parameters of the common law action for fraud (M. (K.), at p. 57). As Lord Evershed, M.R. explained in Kitchen v.

Royal AirForces Association, [1958] 2 All E.R. 241 (C.A.), at p. 249, cited in M. (K.), at pp. 56-57: It is now clear . . . that the word “fraud” in s. 26(

b) of the Limitation Act, 1939, is by no means limited to common law fraud or deceit.Equally, it is clear, having regard to the decision in Beaman v. A.R.T.S., Ltd., [1949] 1 All E.R. 465, that no degree of moral turpitude isnecessary to establish fraud within the section.

What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt todefine two hundred years ago, and I certainly shall not attempt to do so now, but it is, I think, clear that the phrase covers conduct which,having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards theother. [Emphasis added in M. (K.).] [53] While it is therefore clear that equitable fraud can be established in cases where a special relationship subsistsbetween the parties, Lord Evershed, M.R. did not limit its establishment to such circumstances, nor did he purport to define exhaustivelythe circumstances in which it would or would not apply (see T.P. v.

A.P., 1988 ABCA 352, 92 A.R. 122, at para. 10). Indeed, heexpressly refused to do so: “What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define two hundredyears ago, and I certainly shall not attempt to do so now” (Kitchen, at p. 249 (emphasis added)). [54] When, then, does fraudulent concealment arise so as to delay the running of a limitation period?

Recalling that it is aform of equitable fraud, it becomes readily apparent that what matters is not whether there is a special relationship between the parties,but whether it would be, for any reason, unconscionable for the defendant to rely on the advantage gained by having concealed theexistence of a cause of action. This was the Court’s point in Performance Industries Ltd. v.

Sylvan Lake Golf & Tennis Club Ltd., 2002SCC 19, [2002] 1 S.C.R. 678, at para. 39: [Equitable fraud] “. . . refers to transactions falling short of deceit but where the Court is of the opinion that it is unconscientious for aperson to avail himself of the advantage obtained” (p. 37).

Fraud in the “wider sense” of a ground for equitable relief “is so infinite in itsvarieties that the Courts have not attempted to define it”, but “all kinds of unfair dealing and unconscionable conduct in matters ofcontract come within its ken” . . . . [Emphasis added.] It follows that the concern which drives the application of the doctrine of equitable fraud is not limited to the unconscionability of takingadvantage of a special relationship with the plaintiff.

Nor is the doctrine’s application limited, as my colleague suggests, to cases wherethere is something “tantamount to or commensurate with” a special relationship between the plaintiff and the defendant (paras. 171 and173-74).

While a special relationship is a means by which a defendant might conceal the existence of a cause of action, equitable fraudmay also be established by pointing to other forms of unconscionable behaviour, such as (for example) “some abuse of a confidentialposition, some intentional imposition, or some deliberate concealment of facts” (M. (K.), at p. 57, citing Halsbury’s Laws of England (4thed. 1979), vol. 28, at para. 919).

In short, the inquiry is not into the relationship within which the conduct occurred, but into theunconscionability of the conduct itself. [55] The question of whether Pioneer’s alleged conduct amounts to fraudulent concealment will, of course, fall to bedecided by a trial judge. Nevertheless, I agree with the Court of Appeal and the certification judge that it is not “plain and obvious” thatfraudulent concealment could not delay the running of the limitation period in this case (C.A. reasons, at para. 110). B.

Umbrella Purchasers’ Cause of Action Under Section 36(1) of the Competition Act [56] Toshiba argues that the certification judge erred by certifying the umbrella purchasers’ claims brought under s.36(1)(

a) of the Competition Act. For the following reasons, I disagree.

[57] Whether umbrella purchasers have a cause of action under s. 36(1)(

a) of the Competition Act is a question of law,reviewable on a standard of correctness. Since, as I explain below, I have concluded that umbrella purchasers do have a cause of actionunder s. 36(1)(a), it is not plain and obvious that their claim cannot succeed. Godfrey’s pleadings disclose a cause of action for umbrellapurchasers, thereby satisfying the conditions under s. 4(1)(

a) of the Class Proceedings Act for certification. [58] The theory behind holding price-fixers liable to umbrella purchasers — who, it will be recalled are in this casepersons who purchased ODDs or ODD products neither manufactured nor supplied by the defendants — is that the defendants’ anti-competitive cartel activity creates an “umbrella” of supra-competitive prices, causing non-cartel manufacturers to raise their prices (Shahv. LG Chem, Ltd., 2015 ONSC 6148, 390 D.L.R. (4th) 87 (“Shah (Ont. S.C.J.)”), at para. 159).

Additionally, the European Court ofJustice in Kone AG and Others v. ӦBB-Infrastruktur AG, [2014] EUECJ C-557/12, explained umbrella pricing as: Where a cartel manages to maintain artificially high prices for particular goods and certain conditions are met, relating, in particular, tothe nature of the goods or the size of the market covered by that cartel, it cannot be ruled out that a competing undertaking, outside thecartel in question, might choose to set the price of its offer at an amount higher than it would have chosen under normal conditions ofcompetition, that is, in the absence of that cartel.

In such a situation, even if the determination of an offer price is regarded as a purelyautonomous decision, taken by the undertaking not party to a cartel, it must none the less be stated that such a decision has been able tobe taken by reference to a market price distorted by that cartel and, as a result, contrary to the competition rules. [Emphasis added;para. 29.] [59] In short, a rising tide lifts all boats; under the theory of umbrella pricing, the entire market for the subject product isaffected: Umbrella effects typically arise when price increases lead to a diversion of demand to substitute products.

Because successful cartelstypically reduce quantities and increase prices, this diversion leads to a substitution away from the cartels’ products toward substituteproducts produced by cartel outsiders. . . . [T]he increased demand for substitutes typically leads to higher prices for the substituteproducts. Such price increases are called umbrella effects and may arise either in the same relevant market . . . or in neighboring markets. (R. Inderst, F. Maier-

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