Law Times

Page 2 August 22, 2016 • LAw times www.lawtimesnews.com NEWS ing out these kinds of claims at preliminary stages as this issue makes its way through the high- er courts. He says granting leave in this situation is consistent with what he called a "developing trend of permissiveness with respect to competition class actions." Iatrou says that ever since a Supreme Court of Canada de- cision in 2013 called Pro-Sys Consultants Ltd. v. Microsoft Corp., the courts have been more permissive when it comes to indirect purchaser suits. "The Supreme Court basical- ly opened the door for indirect purchasers to be able to sue," says Iatrou, who is not involved in the case. "So that was a big win for the plaintiffs bar and it's part of this trend we're seeing developing of the Canadian environment be- coming quite conducive to com- petition class actions." The other part of the claim that was not certified and grant- ed leave was a claim relating to unlawful means conspiracy. For an unlawful means of conspiracy, which is a tort, to proceed, the plaintiffs need to show that an unlawful element occurred. In the Shah case, the plain- tiffs argued that an alleged breach of a section of the Com- petition Act was an unlawful element. But Perell determined that the Competition Act is a "com- plete code" and, therefore, a breach of part of the act "cannot be used as the 'unlawful' ele- ment in advancing the claim." The Divisional Court grant- ed leave to the plaintiffs to ap- peal the refusal of the certifi- cation of this claim, citing the existence of decisions that con- f licted with that of Perell, such as Pro-Sys. Michael Osborne, a competi- tion lawyer with Aff leck Greene McMurtry LLP, says the Su- preme Court has already said in A.I. Enterprises Ltd. v. Bram Enterprises Ltd. that a breach of a statute such as the Competition Act cannot be the foundation for the unlawful means conspiracy. However, Osborne says there are a number of conf licting de- cisions in cases on the complete code issue that will require some clarification from the Supreme Court of Canada. "It's a mess and it's going to have to be resolved by the Su- preme Court," he says. As for the claims concerning umbrella purchasers, Veel says he would not be surprised if the issue receives a lot more atten- tion from appellate courts and eventually the Supreme Court. "This is one of those issues that's coming up in virtually every competition certification decision as of late, and it's one that's going to need to be re- solved," he says. LT Continued from page 1 Clarification needed by the SCC: lawyer The first of these was that the CJC should look at the way other self-regulating professions, such as lawyers, conduct disciplinary proceedings. The other key recommenda- tions included that members of the public, or laypersons, should be full members of the CJC and that they should be involved in all steps of the judicial discipline process. Review panels must have one layperson, but the other committees in the process do not include members of the public. "Ultimately, this is about pub- lic confidence in the administra- tion of justice and representa- tives of the public are best pos- itioned to speak for the public," Dodek says. Osgoode professor Allan Hutchinson says judges may be reticent to allow members of the public on to the CJC because of fears they will lose their indepen- dence, but they do not need to be. "It doesn't wave 'bye to in- dependence because the judges can no longer exclusively disci- pline themselves," he says. "It shows a more mature sys- tem, which involves judges, of course, but allows other respon- sible parties to ensure they're maintaining the standards they set for themselves." Hutchinson says opening up the process and making it more transparent would go a long way toward ensuring the public's confidence in the system. "Justice needs not only to be done but seen to be done. . . . If they want to continue to main- tain the respect of Canadian so- ciety, they need to show that it's not a closed shop they're operat- ing," he says. Observers say long, drawn- out inquiries into judicial con- duct over the last decade have highlighted problems in the process. "The main problems have been that they have been al- lowed to be bogged down in procedural issues and judicial reviews and that most of these inquiries go on for a number of years," Dodek says. "And that's really in nobody's best interest." Dodek says the process can be cumbersome for judges who are living under a cloud of alle- gations and hope to clear their name. Delays also do little to ce- ment the public's confidence in such a system, he says. Camp's disciplinary hearings will begin in September and will concern allegations he made in- appropriate comments during a sexual assault case in 2014. Legal observers say his trial will likely highlight the process as others have. "Every hearing that comes up exposes different problems in the process," Dodek says. "ey all tend to expose the problem of how long and cum- bersome these inquiries have become, but different problems arise in different challenges. I'm sure the Camp inquiry will raise different challenges." LT Continued from page 1 Increase transparency, says prof REGISTER ONLINE www.lexpert.ca/cpdcentre For more information, please contact Lexpert® at 1-877-298-5868 or e-mail: lexpert.questions@thomsonreuters.com EXECUTIVE PROFESSIONAL DEVELOPMENT FULLY ACCREDITED IN-CLASS PROGRAMS & LIVE WEBINARS 4th Annual Conducting Effective Workplace Investigations Unearthing the Truth: Dig Deeper with Workplace Investigations Sarah Graves Partner, Fasken Martineau DuMoulin LLP Toronto & Webinar November 8 Drafting and Negiotiating Effective Cloud Computing Agreements Get Ahead in the Cloud Lisa R. 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