) ) KHURRAM SHAH v. ALPINA, 2017 ONSC 2586

CITATION : Shah v. LG Chem, Ltd., 2017 ONSC 2586 DIVISIONAL COURT FILE NO.: 556/15 DATE: 20170426 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT KITELEY, NORDHEIMER & LEMAY JJ. BETWEEN: ) ) KHURRAM SHAH and ALPINA HOLDINGS INC.

Appellants (Plaintiffs) – and – LG CHEM, LTD., LG CHEM AMERICA, INC., PANASONIC CORPORATION, PANASONIC CORPORATION OF NORTH AMERICA, PANASONIC CANADA, INC., SANYO ELECTRIC CO., LTD., SANYO NORTH AMERICA CORPORATION, SANYO ENERGY (U.S.A.) CORPORATION, SONY CORPORATION, SONY ENERGY DEVICES CORPORATION, SONY ELECTRONICS, INC., SONY OF CANADA LTD., SAMSUNG SDI CO., LTD., SAMSUNG SDI AMERICA, INC., SAMSUNG ELECTRONICS CANADA INC., HITACHI LTD., HITACHI MAXELL, LTD., MAXELL CORPORATION OF AMERICA , MAXELL CANADA, GS YUASA CORPORATION, NEC CORPORATION, NEC TOKIN CORPORATION, NEC CANADA, TOSHIBA CORPORATION, TOSHIBA AMERICA ELECTRONIC COMPONENTS, INC . and TOSHIBA OF CANADA LIMITED Respondents (Defendants) )) )) )) )) )))))))))))))))))) ))))))))) L.

Visser & J-M. Leclerc , for the appellants S. Forbes & M. Littlejohn , for the respondents, LG Chem, Ltd. and LG Chem America, Inc. J. Rook Q.C., C. Jordaan & E. Davis , for the respondents, Panasonic Corporation, Panasonic Corporation of North America, Panasonic Canada Inc, Sanyo Electric Co., Ltd., Sanyo North America Corporation and Sanyo Energy (U.S.A.) Corporation D. Peebles , for the respondents, Sony Corporation, Sony Energy Devices Corporation, Sony Electronics, Inc. and Sony of Canada Ltd. R. Kwinter & L. Kriaris , for the respondents, Samsung SDI Co., Ltd. and Samsung SDI America Inc. K.

Wright , for the respondents, Hitachi Maxell, Ltd. and Maxell Corporation of America L. Cooper & Z. Maladwala , for the respondents, Toshiba Corporation, Toshiba America Electronic Components, Inc. and Toshiba of Canada Limited ) ) HEARD at Toronto: March 21, 2017 NORDHEIMER J.: [ 1 ] The plaintiffs appeal, with leave, from the order of Perell J., dated October 5, 2015, that certified this action as a class proceeding, but denied certification of claims relating to unlawful means conspiracy and claims brought on behalf of so-called “Umbrella Purchasers”. [1]

[ 2 ] The order granting leave to appeal also denied the defendants’ motion for leave to appeal the certification of this proceeding as a class action. Leave to appeal was granted on two issues, namely: (

i) Did the motion judge err in denying certification of the unlawful means conspiracy claim? and (ii) Did the motion judge err in denying certification of the umbrella purchaser claims? Background [ 3 ] This class action relates to an alleged global price-fixing conspiracy in the market for lithium-ion batteries (“LIBs”). The appellants sought to certify, among other claims, a claim for damages under s. 36 of the Competition Act [2] based on a breach of s. 45 of the Competition Act .

The appellants also sought to certify a claim for damages based on an unlawful means conspiracy. [ 4 ] LIBs are used in many consumer products.

This case relates to LIBs and the following products containing LIBs: notebook computers, cell phones including smart phones, tablet computers, e-book readers, MP3 players, personal digital assistants, handheld GPS devices, handheld video game players, and lithium ion battery packs (the “LIB products”). [ 5 ] The appellants’ proposed class definition included all direct and indirect purchasers of LIBs and LIB products in Canada, including “Umbrella Purchasers”. [ 6 ] The appellants allege that the respondents conspired to raise the price of LIBs, which they manufactured and sold, directly and indirectly, into the Canadian market, during the twelve years between January 1, 2000 and December 31, 2011. [ 7 ] The appellants further allege that this conspiracy succeeded in raising the prices of all LIBs in the Canadian market generally, whether produced by the respondents or not.

As a consequence, the appellants allege that all Canadian purchasers (both direct and indirect) of LIB products paid a higher price than they ought to have paid. Issue #1 – The Unlawful Means Conspiracy Claim [ 8 ] In my view, this issue can be dealt with briefly, since the answer to the question has already been determined by the Court of Appeal. In Fanshawe College of Applied Arts and Technology v. AU Optronics Corp. [3] there was an attempt by the plaintiff to plead an unlawful means conspiracy claim in a situation very similar to the one that presents itself here.

One of the defendants objected to the claim on the basis that it was “not tenable in law”. [ 9 ] The Court of Appeal permitted the amendment to be made. In the course of his reasons on behalf of the court, Hourigan J.A. referred to the decision in this case, since it had been relied upon by the objecting defendant as an example where a court had not permitted an unlawful means conspiracy claim to be advanced.

Somewhat unusually, since this case was not actually before the Court of Appeal for determination, Hourigan J.A. found, at para. 89, that the decision in this case “should not be followed”. [ 10 ] Hourigan J.A. added, at para. 92, that: … the weight of appellate authority is contrary to the position espoused by HannStar and that the cases relied upon by HannStar are not persuasive. HannStar was the objecting defendant in Fanshawe and this case was one of the cases that it was relying upon. [ 11 ] The respondents advance the same arguments here, that HannStar did in Fanshawe .

They contend that the conclusion reached by the certification judge here is correct, and that it is the reasoning and conclusion in Fanshawe that is flawed. [ 12 ] That is a debate in which this court does not need to, and indeed cannot, engage. On the principle of stare decisis , this court is bound to follow decisions of the Court of Appeal. If the respondents want to challenge the conclusion in Fanshawe , they will have to do that in the Court of Appeal. [ 13 ] The respondents attempt to avoid the effect of the principle of stare decisis , through reliance on the decision in Canada (Attorney General) v.

Bedford [4] where McLachlin C.J.C. said, at para. 42: In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue.

Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. [ 14 ] The respondents submit that there is a change in circumstances here, that arises from the failure of the Court of Appeal in Fanshawe to consider relevant authorities on the issue.

The respondents contend that the per incuriam decision of the Court of Appeal is, therefore, wrongly decided and, consequently, is not a decision that must be followed. [5] [ 15 ] In my view, this case does not present a change in circumstances of the type that the Supreme Court of Canada was referring to in Bedford . There is no “change in circumstances” because a party in one case wants to argue authorities that a party in another case did not argue. To conclude otherwise would make the threshold for avoiding binding precedent a much too easy one to cross.

That would be inconsistent with the point made in Bedford , at para. 44 , that “the threshold for revisiting a matter is not an easy one to reach”. [ 16 ] Consequently, the appeal must be allowed on issue #1. The decision of the certification judge on this issue is set aside and the proceeding is certified with respect to the unlawful means conspiracy claim. Issue #2 – the “Umbrella Purchasers”

[ 17 ] As I mentioned earlier, in this case, the appellants propose a class definition that would include all persons in Canada who purchased LIBs and LIB products, regardless of who made the product being purchased. Thus, the proposed class includes purchasers, who did not purchase directly or indirectly from the respondents but rather who purchased indirectly from upstream non-defendants, who also manufactured LIBs and LIB products.

These indirect purchasers from non-defendant manufacturers are referred to as “Umbrella Purchasers”. [ 18 ] The theory of umbrella liability in this case is that the conspiracy to artificially raise or maintain prices, set a threshold or bar that enabled manufacturers, who were not part of the conspiracy, to set their prices higher than they otherwise would have under normal conditions of competition.

Thus, the Umbrella Purchasers were harmed, because the prices of the products that they purchased were also artificially inflated. [ 19 ] The certification judge found that the Umbrella Purchasers had no cause of action against the respondents. He noted that the respondents advanced five reasons why no cause of action existed. The certification judge agreed with four of those five reasons. He outlined those reasons, at paras. 164-165: The Defendants offer five reasons why the claim of the Umbrella Purchasers does not disclose a cause of action.

First, the Defendants submit that s. 36 , upon which the Plaintiffs rely, is not a substantive law provision, and, therefore, s. 36 cannot introduce a cause of action. Second, the Defendants submit assuming s. 36 can introduce a substantive cause of action, then as a matter of interpreting the scope of that cause of action, allowing a claim by Umbrella Purchasers would be inconsistent with restitutionary law.

Third, the Defendants submit that assuming s. 36 can introduce a substantive cause of action, then as a matter of interpreting the scope of that cause of action, the Defendants’ liability would be indeterminate and uncircumscribed and this is contrary to legal policy about economic loss torts. Fourth, the Defendants submit that the proposed new cause of action is unjust because the Defendants would be liable for the independent pricing decisions of non-Defendants, which they submit are intervening acts that break any purported causative link between Umbrella Purchasers and the Defendants.

Fifth, the Defendants submit that to the extent that tort law has a role to play in behaviour modification and deterrence of wrongdoing, there is no need to extend liability to include compensation for Umbrella Purchasers.

I do not agree with the Defendants’ first reason for concluding that there is no cause of action by Umbrella Purchasers but, generally speaking, I do agree with their other four reasons for concluding that it is plain and obvious that the Umbrella Purchasers do not have a cause of action against the Defendants. [ 20 ] The certification judge went on to find that, even if the Umbrella Purchasers had a cause of action against the respondents, he would not have found this class action to be the preferable procedure for the resolution of that claim. [ 21 ] As I shall explain, I agree with the certification judge’s conclusions on the first and third reasons advanced by the respondents.

I do not agree with his conclusions respecting the second, fourth and fifth reasons. [ 22 ] I agree with the certification judge in rejecting the respondents’ first reason for why the Umbrella Purchasers do not have a cause of action. I agree that s. 36 creates a civil right of action, the purpose of which is to help enforce the substantive aspects of the Competition Act : General Motors of Canada Ltd. v. City National Leasing Ltd. [6] at pp. 672-73. The plain wording of the

section gives a right of action to persons, who suffer loss or damage as the result of the conduct of others, that is contrary to the provisions of

Part VI of the Competition Act , that is, as a result of offences in relation to competition. Section 36(1) reads: Any person who has suffered loss or damage as a result of (

a) conduct that is contrary to any provision of

Part VI, or (

b) the failure of any person to comply with an order of the Tribunal or another court under this Act, 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. [ 23 ] The certification judge’s conclusion regarding the second reason, that is, that a claim by Umbrella Purchasers would be inconsistent with restitutionary law, is problematic.

It is so because it appears that the certification judge conflated the claim under s. 36 , and the claim advanced for unjust enrichment, in his analysis. The certification judge’s analysis may well be correct insofar as any claim is advanced for unjust enrichment relating to the Umbrella Purchasers. However, that conclusion does not address any claim that the Umbrella Purchasers may be able to advance under s. 36 . As should be clear from the plain wording of s. 36(1), the right of action provided by the

section is not concerned with the recovery of “ill-gotten gains”. The claim is for the loss or damage suffered by the person, who is impacted by the anti-competitive conduct of the respondents. The loss is looked at from the perspective of what the injured person lost, not what the anti-competitive respondents gained. If the anti-competitive conduct of the respondents caused loss or damage to a person, then that person is entitled to recover that loss or damage from the respondents, regardless of whether the respondents acquired a commensurate gain.

This conclusion is consistent with the remedial purpose of the cause of action provided by s. 36 , that is, to assist in the enforcement of the Competition Act . [ 24 ] With respect, the certification judge’s analysis of the impact of the decision in Pro-Sys Consultants Ltd. v. Microsoft Corporation [7] on this issue, misses the point that the analysis from that decision, that the certification judge referenced, was also directed to an unjust enrichment claim, not a claim under s. 36 .

Indeed, the Supreme Court of Canada concluded that it was “not plain and obvious that a claim under s. 36 of the Competition Act would be unsuccessful” (at para. 71). [ 25 ] The second reason is, therefore, not a proper basis for concluding that the Umbrella Purchasers do not have a reasonable cause of action under s. 36 . [ 26 ] I choose at this point to skip over the third reason because I view it as posing the single biggest hurdle to the proposed claim

of the Umbrella Purchasers. I prefer to now deal with the fourth and fifth reasons, after which I will return to the third reason. [ 27 ] In terms of the fourth reason, I do not see any injustice in holding the respondents liable for pricing decisions, made by non- defendant manufacturers, if it can be shown that the respondents created the necessary circumstances that permitted non-defendant manufacturers to artificially increase their prices, and thus cause harm to consumers.

The respondents complain that that would make them liable for the independent pricing decisions of non-defendant manufacturers, that break the causative link between Umbrella Purchasers and the respondents.

However, whether the Umbrella Purchasers actually suffered any losses due to the actions of the respondents is a matter of fact to be established by evidence. [ 28 ] If the Umbrella Purchasers cannot show that the non-defendant manufacturers increased their prices as a result of the unlawful conduct of the respondents, but rather did so for some other unrelated reason, then the Umbrella Purchasers will fail in their claim.

On the other hand, if the Umbrella Purchasers can show that one reason, that the non-defendant manufacturers raised their prices, was because of the unlawful conduct of the respondents, then I fail to see any unfairness in finding the respondents liable for that conduct. The Umbrella Purchasers will have suffered loss or damage as a result of the respondents’ conduct that is contrary to the provisions of

Part VI of the Competition Act and, thus, their claim falls within the ambit of s. 36 . While the evidentiary burden on the Umbrella Purchasers may be a difficult one, in this respect, that is not a reason to deny them the right to advance their claim. As Rothstein J. said in Pro-Sys at para. 45: Indirect purchaser actions should not be barred altogether solely because of the likely complexity associated with proof of damages. [ 29 ] In terms of the fifth reason, I accept that, for the purposes of deterrence, there is no need to extend liability to include compensation for Umbrella Purchasers.

To the degree that imposing liability for anti-competitive behaviour will deter others, that would be sufficiently accomplished by a damages award to those persons who purchased, directly or indirectly, from the respondents. However, that is not the only purpose that underlies s. 36 . Another purpose is to provide compensation to persons who are harmed by anti-competitive behaviour. If the Umbrella Purchasers have suffered damage or loss as a result of anti-competitive conduct, but are denied the right to advance a claim for that harm, then they are left without compensation.

Providing that compensation is a legitimate end goal of s. 36.

Indeed, it is consistent both with the plain wording of s. 36 and with its remedial nature. [ 30 ] Consequently, none of the first, second, fourth or fifth reasons, advanced by the respondents, provide a proper basis to conclude that the Umbrella Purchasers do not have a reasonable cause of action. [ 31 ] I now return to the third reason, that is, that extending liability to the respondents, for harm occasioned to Umbrella Purchasers, would render that liability indeterminate and uncircumscribed. [ 32 ] The certification judge concluded that allowing the claims by the Umbrella Purchasers would expose the respondents to indeterminate liability.

In so concluding, he relied on the decision in R. v. Imperial Tobacco Canada Ltd . [8] While there are differences in the nature of the allegations advanced against the Federal Government in that case, and the nature of the allegations advanced against the respondents here, the fundamental principle is the same. [ 33 ] Imperial Tobacco involved a claim against the Federal Government based on negligent misrepresentation.

The Federal Government argued, and the Supreme Court of Canada accepted, that it would be unfair to hold the Federal Government responsible for claims made to consumers about light cigarettes, when the Federal Government had no control over the number of people who smoked light cigarettes. The claim against the Federal Government was struck out because the Federal Government “was not in control of the extent of its potential liability” (para. 101). [ 34 ] The situation here is similar.

What is alleged here is that the non-defendant manufacturers took advantage of the higher market price being set by the respondents though their conspiracy, to similarly increase the prices of their LIBs or LIB products. Assuming that that occurred, the respondents had no control over the actions of the non-defendant manufacturers. First and foremost, they had no control over whether the non-defendant manufacturers chose to match prices. Second, they had no control over the volume of LIBs or LIB products, that the non-defendant manufacturers chose to produce and sell. [ 35 ] This is a claim in economic loss.

The class complains that, because of the conspiracy, they paid more for LIBs or LIB products than they would otherwise have had to pay. Adding in the Umbrella Purchasers greatly expands the members of the class, and does so by adding persons with whom the respondents had no dealings. Indeed, if the Umbrella Purchasers are included in the class, it is not clear how the respondents would even know how many such purchasers they might be found liable to. This reality appears to put this claim into the same category of claim that was commented on in Design Services Ltd. v.

Canada [9] where Rothstein J. said, at para. 62: I agree that in the case of pure economic loss, there is a greater risk of indeterminate liability than in cases of physical injury or property damage. Therefore, in cases of pure economic loss, to paraphrase Cardozo C.J., care must be taken to find that a duty is recognized only in cases where the class of plaintiffs, the time and the amounts are determinate. [ 36 ] The plaintiffs attempt to deflect this issue by pointing to the fact that other cases have certified class proceedings that included umbrella purchasers. Principal among those cases are Godfrey v.

Sony Corp. [10] and Fanshawe College of Applied Arts and Technology v. Hitachi Ltd. [11] While other cases have included umbrella purchasers, as pointed out by the certification judge here, none of those other cases directly considered whether umbrella purchasers have a cause of action. [ 37 ] In Godfrey , the certification judge rejected the submission that including umbrella purchasers in the class would expose the defendants to indeterminate liability.

In doing so, he said, at paras. 75-76: Second, I do not think that the possibility of indeterminate liability militates against affording umbrella purchasers a cause of action.

Section 45 prohibits intentional conspiracies; to succeed, the plaintiff must establish both the subjective and objective elements of the mens rea . The policy rationales for limiting a duty of care in negligence, discussed in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 97-101 , and cited in Shah v. LG Chem at para. 174, are not compelling here.

In most price-fixing cases the defendants hold a substantial share of the relevant market. And, for umbrella purchasers to be successful, they will generally need to show that the defendants had such market power that their pricing decisions moved the market. Thus, I think it reasonable to assume that in most cases the number of purchases from non-cartel members will not exceed the number of purchases from cartel members.

This would expose cartel members to double the liability they would face if umbrella purchasers were excluded; while this is certainly significant, I do not think that it is impermissibly indeterminate. [ 38 ] With respect, the certification judge in Godfrey does not explain why the policy rationales, enunciated in Imperial Tobacco, are not compelling in this type of case.

Indeed, given that these cases involve claims for economic loss, which was a key element underlying the concern about indeterminate liability enunciated both in Imperial Tobacco and in Design Services , it would appear to be difficult to distinguish them. [ 39 ] In addition, it is not apparent to me how the fact that the defendants may hold a substantial share of the relevant market addresses the indeterminate liability issue. The reality that there may be a maximum exposure established (that is the entirety of the market) does not change the fact that the defendants have no control over their liability exposure.

Presumably, in Imperial Tobacco , it would have been possible to establish the maximum number of smokers of light cigarettes in Canada, but the Supreme Court of Canada nonetheless found that the liability for the Federal Government was indeterminate. [ 40 ] The certification judge in Fanshawe simply followed the decision in Godfrey .

The certification judge observed, however, at para. 38: Further, I concede some difficulty in understanding how issues like indeterminate liability, causation and if important at all to a certification motion, behaviour modification and deterrence can be assessed at the pleadings stage of the analysis. It seems to me Shah takes the s. 5(1)(

a) criteria to a level that goes beyond what a statement of claim reveals. [ 41 ] It is not entirely clear to me what the certification judge in Fanshawe meant by that observation. Indeterminate liability is important in a certification motion because it goes to the s. 5(1)(

a) criterion, that is, whether the pleadings disclose a cause of action. [12] Whether a reasonable cause of action existed was precisely the issue that was before the Supreme Court of Canada in Imperial Tobacco which, as I have set out above, was decided adversely to the defendants (who advanced the third party claim against the Federal Government) in that case, at least in part, on the issue of indeterminate liability. [ 42 ] I note, in passing, that concerns surrounding indeterminate liability might also go to the preferable procedure requirement in s. 5(1)(d). [ 43 ] The appellants attempt to avoid the indeterminate liability problem by asserting that their claim here is based on an intentional tort, namely conspiracy.

Because it is an intentional tort, the appellants say that the respondents “are liable for all harm caused, however remote it may be”. [13] In making this submission, the appellants place considerable reliance on the decision in Bettel v. Yim . [14] [ 44 ] In my view, there are a number of problems with the appellants’ submission. First, the claim of the Umbrella Purchasers is based on s. 36 which, as I have already stated, creates a civil right of action.

It is not clear that the principles surrounding intentional torts are applicable to such a cause of action, even where the cause of action arises from the intentional tort of conspiracy. I see no pressing reason to exempt a claim under s. 36 , as a stand-alone cause of action, from the application of the principle of indeterminate liability. [ 45 ] Second, the reliance on Bettel is problematic since the claim in that case involved liability for damages arising from an assault. The principles enunciated in Bettel do not transfer easily into a claim such as is advanced here, on behalf of the Umbrella Purchasers.

There is considerable debate over the extent to which foreseeability should be applied in tort claims, as the decision in Bettel points out. It is one thing to hold a person liable for unforeseen damages caused to another person whom they intended to harm. It is quite another to hold a person liable for unforeseen damages caused by an intentional act that was not directed at the person claiming the harm. The policy rationale for the former does not provide the same rationale for the latter.

In that regard, I would repeat the quotation from Salmond on The Law of Torts , 14th ed. (1965) at p. 707, referred to in one of the appellants’ authorities, Gershman v. Manitoba (Vegetable Producers' Marketing Board) , [15] at para. 25 : The defendant is held responsible for all those consequences which he actually desired and intended to inflict upon the plaintiff , however remote may be the chain of causation by which he effected his purpose. [emphasis added] [ 46 ] Third, unlike a case like Bettel , or the cases referred to therein, the focus of the claim here, under s. 36 , is one for economic loss.

It is not for personal or property damage. Concerns over indeterminate liability are a significant aspect of the analysis of economic loss claims. As McLachlin C.J.C. said in Imperial Tobacco , at para. 100: The risk of indeterminate liability is enhanced by the fact that the claims are for pure economic loss. [ 47 ] Fourth, the appellants’ submission seems difficult to square with the result in Design Services , and the observation made by Rothstein J. that I have set out in para. 35 above.

In considering this issue, and the concern about indeterminate liability, one must keep in mind that we are here dealing with a class proceeding. It advances a claim on behalf of a large, but currently unknown, number of people. The concerns over indeterminate liability, and the foreseeability of loss, that are discussed in tort texts, and in the cases relied upon by the appellants, do not consider the nature or breadth of the claims being advanced here. [ 48 ] In the end result, I agree with the certification judge that including the Umbrella Purchasers would expose the respondents to indeterminate liability.

The claim of the Umbrella Purchasers, consequently, does not satisfy the criterion under s. 5(1)(a). [ 49 ] While that conclusion would be sufficient to address the second issue on which leave to appeal was granted, I believe two other points should be made, because they also undermine the argument for including the Umbrella Purchasers within the class. First and foremost is the fact that, as the respondents point out, the appellants have failed to plead the requisite elements of the claim that could be advanced for the Umbrella Purchasers.

It seems to me that, at a minimum, that claim would require a pleading that:

(

a) the respondents conspired to fix prices for LIBs and LIB products; (

b) that the respondents fixed those prices at a level higher than they otherwise would have been, if the conspiracy had not been engaged in; (

c) that prices so fixed by the respondents allowed the non-defendant manufacturers to charge higher prices; (

d) that the non-defendant manufacturers did, in fact, charge higher prices, and; (

e) that the non-defendant manufacturers charged higher prices as a direct result of the opportunity created by the respondents. [ 50 ] On the most generous reading of the Fresh as Amended Consolidated Statement of Claim, only the first two facts are pleaded. None of the other requisite facts are pleaded either directly, indirectly, expressly or implicitly. The failure to plead the requisite facts in support of a claim is fatal: Copland v.

Commodore Business Machines Ltd. [16] , Rules of Civil Procedure [17] r. 25.06(1) . [ 51 ] The other point is that no common issues were proposed respecting the claims of the Umbrella Purchasers, as required by s. 5(1)(c), nor was there a proposed representative plaintiff for the Umbrella Purchasers. This latter point is of some consequence, since the appellants conceded that the Umbrella Purchasers would have to be a subclass, within the certified class.

Given that there would appear to be at least the potential for some conflict to arise between the direct purchasers and the Umbrella Purchasers, a separate representative plaintiff for the Umbrella Purchasers would seem to be necessary. [ 52 ] While I mention the latter point as an additional concern regarding the certification of claims by the Umbrella Purchasers, I should in fairness note that the respondents did not raise either the common issue or representative plaintiff issues in their factum, or at the hearing. [ 53 ] In the end result, I agree with the certification judge that the claims of the Umbrella Purchasers cannot be certified.

Conclusion [ 54 ] The appeal on issue #1 is allowed. The appeal on issue #2 is dismissed. An order will go setting aside paragraph 4 of the certification order, dated October 5, 2015, and replacing it with an order certifying the plaintiffs’ claim for unlawful means conspiracy. [ 55 ] If any issues arise, in terms of the certification order, from the fact that the unlawful means conspiracy claim has now been certified, the parties can address those matters before the certification judge. [ 56 ] In accordance with the agreement of the parties, there will be no order as to the costs of the appeal. NORDHEIMER J.

I agree KITELEY J. I agree LEMAY J. Date of Release: April , 2017 CITATION : Shah v. LG Chem, Ltd., 2017 ONSC 2586 DIVISIONAL COURT FILE NO.: 556/15 DATE: 20170426

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT KITELEY, NORDHEIMER & LEMAY JJ. BETWEEN: KHURRAM SHAH and ALPINA HOLDINGS INC. Appellants – and – LG CHEM, LTD., and others Respondents REASONS FOR JUDGMENT NORDHEIMER J. Date of Release: