Case information
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34282
Pro-Sys Consultants Ltd., et al. v. Microsoft Corporation, et al.
(British Columbia) (Civil) (By Leave)
(Sealing order)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2015-05-20 | Appeal closed | |
| 2015-05-15 | Certificate of taxation issued to, Mr. Michael J. Sobkin | |
| 2015-05-15 | Decision on the bill of costs, in the amount of $40,270.42, Reg | |
| 2015-05-15 | Submission of the bill of costs, Reg | |
| 2014-10-15 | Order on miscellaneous motion, (by THE COURT) | |
| 2014-10-15 | Decision on miscellaneous motion, (addressed in the order by the Court on the motion for re-hearing) | |
| 2014-10-15 | Submission of miscellaneous motion | |
| 2014-10-15 |
Decision on the motion for a re-hearing of the appeal, (by the COURT), UPON APPLICATION on behalf of the respondents for an extension of time to serve and file a motion for a re-hearing and for a re-hearing of the appeal limited to the determination of costs in this Court’s reasons for judgment dated October 31, 2013; AND UPON APPLICATION on behalf of the appellants for a motion for leave to serve and file a sur-reply; AND THE MATERIALS FILED having been read; IT IS HEREBY ORDERED THAT: 1. The motion by the respondents for an extension of time to serve and file the motion for a re-hearing is allowed. 2. The motion by the appellants to file a sur-reply is allowed. 3. Without deciding whether s. 37 of the Class Proceedings Act, R.S.B.C. 1996, c. 50, limits this Court’s discretion to award costs in respect of the proceedings in the British Columbia Supreme Court and Court of Appeal, the motion by the respondents for a re-hearing is allowed and the reasons and order of this Court dated October 31, 2013 are varied to provide that the appeal is allowed with costs in this Court only. 4. Notwithstanding the result, costs of these motions are payable to the appellants. Allowed, with costs |
|
| 2014-10-15 | All material on motion for a re-hearing of the appeal submitted to Justices, the Court | |
| 2014-08-21 | Response to the bill of costs, (response to amended bill of costs), Completed on: 2014-08-21 | Microsoft Corporation |
| 2014-06-25 | Reply to miscellaneous motion, (Letter Form), Completed on: 2014-06-25, (Electronic version filed on 2014-06-25) | Pro-Sys Consultants Ltd. |
| 2014-06-18 | Response to miscellaneous motion, (Letter Form), Completed on: 2014-06-19, (Electronic version filed on 2014-06-18) | Microsoft Corporation |
| 2014-06-11 | Notice of miscellaneous motion, (Book Form), To permit sur-reply by the appellants. , Completed on: 2014-06-11, (Electronic version filed on 2014-06-11) | Pro-Sys Consultants Ltd. |
| 2014-06-05 | Notice of change of counsel, Geoffrey Cowper is now the counsel of record with Yael Wexler from Fasken Martineau DuMoulin as agent. | Microsoft Corporation |
| 2014-06-02 | Reply to the response to the motion for a re-hearing of the appeal, (Book Form), (and to the motion for extension of time), (Electronic version due on 2014-06-09) | Microsoft Corporation |
| 2014-05-16 | Response to the motion for a re-hearing of the appeal, (Book Form), and response to motion for extension of time, Completed on: 2014-05-20, (Electronic version filed on 2014-05-20) | Pro-Sys Consultants Ltd. |
| 2014-05-01 | Other book of authorities, (Book Form), regarding motion for re-hearing and extension of time, Completed on: 2014-05-01 | Microsoft Corporation |
| 2014-05-01 | Motion for a re-hearing of the appeal, (Book Form), and for extension of time., Completed on: 2014-05-01, (Electronic version due on 2014-05-08) | Microsoft Corporation |
| 2014-04-25 | Bill of costs, A revised Bill of Costs was received on August 12, 2014., Completed on: 2014-04-25 | Pro-Sys Consultants Ltd. |
| 2013-11-01 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2013-11-01 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2013-10-31 |
Judgment on the appeal rendered, CJ LeB F Abe Ro Cro Mo Ka Wa, The appeal from the judgment of the Court of Appeal for British Columbia (Vancouver), Numbers CA034325 and CA037968, 2011 BCCA 186, dated April 15, 2011, heard on October 17, 2012, is allowed with costs throughout. The orders of the applications judges allowing for certification of the action as a class proceeding are restored, with the exception that the pleadings based on constructive trust are struck. Allowed, with costs |
|
| 2013-05-21 | Correspondence received from, Linnae Roach dated May 17, 2013. Re: Replacement of the electronic redacted factum | Pro-Sys Consultants Ltd. |
| 2012-11-05 | Transcript received, (221 pages) | |
| 2012-10-17 | Judgment reserved OR rendered with reasons to follow | |
| 2012-10-17 |
Hearing of the appeal, 2012-10-17, CJ LeB F Abe Ro Cro Mo Ka Wa Judgment reserved |
|
| 2012-10-17 | General proceeding, no information subject to the sealing order was revealed at the hearing | Microsoft Corporation |
| 2012-10-17 | General proceeding, no information subject to the sealing order was revealed at the hearing | Pro-Sys Consultants Ltd. |
| 2012-10-17 | Respondent's condensed book, (Book Form), SEALED filed in Court - no redacted copy received | Microsoft Corporation |
| 2012-10-17 | Appellant's condensed book, (Book Form), Filed in Court an joint with 34283 | Pro-Sys Consultants Ltd. |
| 2012-10-17 | Acknowledgement and consent for video taping of proceedings, All parties consented | |
| 2012-10-16 | Notice of appearance, Michael Sobkin will also be appearing | Pro-Sys Consultants Ltd. |
| 2012-10-15 | Correspondence received from, Gowlings re: request for 2 extra reserved seats | Microsoft Corporation |
| 2012-10-11 | Correspondence received from, 2 reserved seats requested | Pro-Sys Consultants Ltd. |
| 2012-10-11 | Notice of appearance, J.J. Camp, Reidar Mogerman and Melina Buckley will be present at the hearing. | Pro-Sys Consultants Ltd. |
| 2012-10-10 | Correspondence received from, J.J. Camp dated October 9, 2012. Re: Supplemental book of authorities | Pro-Sys Consultants Ltd. |
| 2012-10-10 | Supplemental document, Appellants' further supplementary book of authorities, Completed on: 2012-10-10 | Pro-Sys Consultants Ltd. |
| 2012-10-05 | Correspondence received from, Gowlings rec'd by email re: parties have agreed that Sun-Rype goes first, Pro-Sys goes seond and Samsung goes third. | Microsoft Corporation |
| 2012-10-03 | Notice of appearance, John S. Tyhurst will be appearing | Attorney General of Canada |
| 2012-10-03 | Correspondence received from, Gowlings rec'd by e-mail re: they do not object to the filing of the Supplemental Record | Microsoft Corporation |
| 2012-10-01 | Correspondence received from, Gowlings dated Oct. 1/12 and rec'd by e-mail re: spliting time for oral argument | Microsoft Corporation |
| 2012-09-28 | Supplemental document, (Supplemental Book of Authorities - CD rec'd Oct. 1/12), Completed on: 2012-10-02 | Microsoft Corporation |
| 2012-09-28 | Supplemental document, (Vol. 1 to 4 SEALED SUPPLEMENTAL RESPONDENT'S RECORD and CD) - Consent rec'd by phone from Mr. Sobkin, Completed on: 2012-09-28 | Microsoft Corporation |
| 2012-09-13 |
Order by, Ro, FURTHER TO THE ORDER dated July 18, 2012, granting leave to intervene to the Attorney General of Canada in both appeals and the Canadian Chamber of Commerce for leave to intervene in the appeal of Sun-Rype Products Ltd., et al. v. Archer Daniels Midland Company, et al. (34283); IT IS HEREBY FURTHER ORDERED THAT the said interveners are each granted permission to present oral argument not exceeding ten (10) minutes at the hearing of the appeals. Granted, no order as to costs |
|
| 2012-09-12 | Supplemental document, Authorities, Completed on: 2012-09-12 | Microsoft Corporation |
| 2012-09-12 | Intervener's book of authorities, Joint with 34283, Completed on: 2012-09-12 | Attorney General of Canada |
| 2012-09-12 | Intervener's factum, Joint with 34283, Completed on: 2012-09-12 | Attorney General of Canada |
| 2012-09-07 | Order on motion for additional time to present oral argument, (BY CHIEF JUSTICE) | |
| 2012-09-07 |
Decision on motion for additional time to present oral argument, CJ, UPON APPLICATION by the respondents Microsoft Corporation and Microsoft Canada Co./Microsoft Canada CIE for an order that the respondents be entitled to one hour for their oral argument on the appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion is dismissed. The respondents Microsoft Corporation and Microsoft Canada Co./Microsoft Canada CIE shall be allowed 45 minutes in total for their oral argument on the appeal Dismissed |
|
| 2012-09-07 | Submission of motion for additional time to present oral argument, CJ | |
| 2012-08-29 | Correspondence received from, Mr. Finkelstein dated Aug. 29/12 and rec'd by email re: request to be heard separately from 34283 and 34617 | Microsoft Corporation |
| 2012-07-25 | Correspondence received from, Gowlings, by email, dated July 25/12, Re: requests 4 reserved seats | Microsoft Corporation |
| 2012-07-25 | Notice of appearance, Neil Finkelstein, James Sullivan, Catherine Beagan Flood and Brandon Kain will be present at the hearing | Microsoft Corporation |
| 2012-07-24 | Order on motion to extend time | |
| 2012-07-24 |
Decision on motion to extend time, to serve and file the Appellants' factum filed pursuant to rule 29(4), the supplemental Record and the supplemental Book of Authorities to July 6/12, DeRg Granted |
|
| 2012-07-24 | Submission of motion to extend time, DeRg | |
| 2012-07-24 | Notice of hearing sent to parties | |
| 2012-07-19 | Response to motion to extend time, email from Gowlings dated July 18/12, Completed on: 2012-07-19 | Microsoft Corporation |
| 2012-07-19 |
Appeal hearing scheduled, 2012-10-17, (Early start 9:00a.m.) Judgment reserved |
|
| 2012-07-18 | Order on motion for leave to intervene, (BY DESCHAMPS J.) | |
| 2012-07-18 |
Decision on the motion for leave to intervene, (joint with 34283), De, UPON APPLICATIONS by the Attorney General of Canada for leave to intervene in the above appeals; AND UPON APPLICATION by the Canadian Chamber of Commerce for leave to intervene in the appeal of Sun-Rype Products Ltd., et al. v. Archer Daniels Midland Company, et al. (34283); AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motions for leave to intervene of the Attorney General of Canada are granted and the said intervener shall be entitled to serve and file a single factum not to exceed 10 pages in length in these appeals on or before September 12, 2012. The motion for leave to intervene of the Canadian Chamber of Commerce is granted and the said intervener shall be entitled to serve and file a factum not to exceed 10 pages in length in the appeal of Sun-Rype Products Ltd., et al. v. Archer Daniels Midland Company, et al. (34283) on or before September 12, 2012. The requests to present oral argument are deferred to a date following receipt and consideration of the written arguments of the parties and the interveners. The interveners are not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the interveners shall pay to the appellants and respondents any additional disbursements occasioned to the appellants and respondents by their interventions Granted |
|
| 2012-07-18 | Submission of motion for leave to intervene, De | |
| 2012-07-03 | Supplemental document, RECORD Vol. 1 to 4, SEALED (there will not be any redacted version), Completed on: 2012-07-12 | Pro-Sys Consultants Ltd. |
| 2012-07-03 | Supplemental document, Supplemental Book of Authorities Vol. 1 to 6, Completed on: 2012-07-12 | Pro-Sys Consultants Ltd. |
| 2012-07-03 | Supplemental factum, filed pursuant to rule 29(4) SEALED + 2 REDACTED VERSION, CD rec'd July 11/12, Completed on: 2012-07-12 | Pro-Sys Consultants Ltd. |
| 2012-07-03 | Motion to extend time, to serve and file the Appellants' factum filed pursuant to rule 29(4), the supplemental record and the supplemental book of authorities to July 6/12, Completed on: 2012-07-03 | Pro-Sys Consultants Ltd. |
| 2012-06-18 | Response to the motion for additional time to present oral argument, (Letter Form), rec'd from J.J. Camp, Q;C. by fax, Completed on: 2012-06-18 | Pro-Sys Consultants Ltd. |
| 2012-06-18 | Correspondence received, Y. Martineau, dated June 18, counsel for Infineon Technologies A.G., motion is premature | |
| 2012-06-15 | Correspondence received, from J. Kenneth McEwan, counsel for Cargill et al in Sun-Rype (34283) dated June 15/12 re motion for additional time for oral argument | |
| 2012-06-08 | Respondent's book of authorities, (in support of the motion for additional time), Completed on: 2012-06-08 | Microsoft Corporation |
| 2012-06-08 | Motion for additional time to present oral argument, (1 hour), Completed on: 2012-06-08 | Microsoft Corporation |
| 2012-05-24 | Appeal perfected for hearing | |
| 2012-05-22 | Respondent's record, (SEALED Vol. 1 to 4) - CD, Form, service and redacted version rec'd May 22/12, Completed on: 2012-05-23 | Microsoft Corporation |
| 2012-05-22 | Respondent's factum, including rule 29(3) SEALED - CD, Form, Service and Redacted version rec'd May 22/12, Completed on: 2012-05-23 | Microsoft Corporation |
| 2012-05-22 | Respondent's book of authorities, Vol. 1 to 5 - CD, Form and Service rec'd May 22/12, Completed on: 2012-05-23 | Microsoft Corporation |
| 2012-05-07 | Response to the motion for leave to intervene, (bookform), Completed on: 2012-05-09 | Microsoft Corporation |
| 2012-05-07 | Response to the motion for leave to intervene, (Letter Form), from J.J. Camp, Q.C. dated May 7/12, Completed on: 2012-05-07 | Pro-Sys Consultants Ltd. |
| 2012-04-27 | Motion for leave to intervene, (bookform), Completed on: 2012-04-27 | Attorney General of Canada |
| 2012-03-30 | Appellant's book of authorities, (Vol. 1 to 7), Completed on: 2012-04-10 | Pro-Sys Consultants Ltd. |
| 2012-03-30 | Appellant's record, (Vol. 1 to 5 SEALED + 3 copies of Vol. 1 to 3 redacted), Completed on: 2012-04-10 | Pro-Sys Consultants Ltd. |
| 2012-03-30 | Appellant's factum, (SEALED + 3 redacted copies), Completed on: 2012-04-10 | Pro-Sys Consultants Ltd. |
| 2012-03-08 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2011-12-22 | Notice of appeal, Completed on: 2011-12-22 | Pro-Sys Consultants Ltd. |
| 2011-12-02 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2011-12-02 | Judgment on leave sent to the parties | |
| 2011-12-01 |
Judgment of the Court on the application for leave to appeal, The Respondents’ motion to strike out the affidavits of Professors Trebilcock and Iacobucci from the Application Record is granted without costs. The application for leave to appeal from the judgment of the Court of Appeal for British Columbia (Vancouver), Numbers CA034325 and CA037968, 2011 BCCA 186, dated April 15, 2011, is granted with costs in the cause. Granted, with costs in the cause |
|
| 2011-12-01 |
Decision on motion to strike out, see judgment Granted, without costs |
|
| 2011-11-22 | Correspondence received from, Reidar M. Mogerman, dated Nov.21/11, Re: Endorsement of the Ontario Superior Court Justice dated Nov.21/11 | Pro-Sys Consultants Ltd. |
| 2011-11-17 | Correspondence received from, Reidar M. Mogerman, dated Nov.16/11, Re: Decision of the Quebec Court of Appeal on November 16/11 (submitted to panel on Nov.18/11) | Pro-Sys Consultants Ltd. |
| 2011-10-04 | Correspondence received from, Reidar Mogerman, dated Oct.4/11, by email, Re: sealing order | Pro-Sys Consultants Ltd. |
| 2011-10-03 | All materials on application for leave submitted to the Judges, LeB F Cro | |
| 2011-10-03 | Submission of motion to strike out, LeB F Cro | |
| 2011-09-21 | Correspondence received from, Reidar M. Mogerman, dated Sept.20/11 Re: Decision of Justice Strathy of the Superior Court of Justice Ontario dated Sept.20/11 | Pro-Sys Consultants Ltd. |
| 2011-09-19 | Supplemental document, (Supreme Court of BC decision dated 2011-08-19) | Pro-Sys Consultants Ltd. |
| 2011-08-11 | Reply to motion to strike out, Completed on: 2011-08-11 | Microsoft Corporation |
| 2011-08-03 | Response to motion to strike out, Bookform, Completed on: 2011-08-03 | Pro-Sys Consultants Ltd. |
| 2011-08-03 | Applicant's reply to respondent's argument, Completed on: 2011-08-03 | Pro-Sys Consultants Ltd. |
| 2011-06-29 | Book of authorities, (for the motion) | Microsoft Corporation |
| 2011-06-29 | Motion to strike out, Amended Statement of Claim from the Applicants' Application for Leave to Appeal and certain affidavits, Completed on: 2011-06-29 | Microsoft Corporation |
| 2011-06-29 | Book of authorities | Microsoft Corporation |
| 2011-06-29 | Respondent's response on the application for leave to appeal, (3 volumes) (SEALED) 2 redacted copies filed June 29/11, Completed on: 2011-06-29 | Microsoft Corporation |
| 2011-06-03 | Correspondence received from, Thomas W. Ross, dated May 30/11, Affidavit in support of the application for leave - original copy | Pro-Sys Consultants Ltd. |
| 2011-06-01 | Letter acknowledging receipt of an incomplete application for leave to appeal and without formal Court of Appeal order | |
| 2011-05-30 | Book of authorities, (6 volumes) | Pro-Sys Consultants Ltd. |
| 2011-05-30 | Application for leave to appeal, (2 volumes SEALED) (2 redacted copies of both volumes rec'd) Final CA Order missing (form rec'd June 15/11) final rec'd June 20/11, Completed on: 2011-06-21 | Pro-Sys Consultants Ltd. |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Pro-Sys Consultants Ltd. | Appellant | Active |
| Godfrey, Neil | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Microsoft Corporation | Respondent | Active |
| Microsoft Canada Co./Microsoft Canada CIE | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Attorney General of Canada | Intervener | Active |
Counsel
Party: Pro-Sys Consultants Ltd.
Counsel
J.J. Camp, Q.C.
Reidar Mogerman
Reidar Mogerman
Camp Fiorante Matthews Mogerman
400 - 856 Homer Street
Vancouver, British Columbia
V6B 2W5
Telephone: (604) 689-7555
FAX: (604) 689-7554
Email: jjcamp@cfmlawyers.ca
400 - 856 Homer Street
Vancouver, British Columbia
V6B 2W5
Telephone: (604) 689-7555
FAX: (604) 689-7554
Email: jjcamp@cfmlawyers.ca
Agent
Michael J. Sobkin
331 Somerset Street West
Ottawa, Ontario
K2P 0J8
Telephone: (613) 282-1712
FAX: (613) 288-2896
Email: msobkin@sympatico.ca
Ottawa, Ontario
K2P 0J8
Telephone: (613) 282-1712
FAX: (613) 288-2896
Email: msobkin@sympatico.ca
Party: Godfrey, Neil
Counsel
J.J. Camp, Q.C.
Reidar Mogerman
Reidar Mogerman
Camp Fiorante Matthews Mogerman
400 - 856 Homer Street
Vancouver, British Columbia
V6B 2W5
Telephone: (604) 689-7555
FAX: (604) 689-7554
Email: jjcamp@cfmlawyers.ca
400 - 856 Homer Street
Vancouver, British Columbia
V6B 2W5
Telephone: (604) 689-7555
FAX: (604) 689-7554
Email: jjcamp@cfmlawyers.ca
Agent
Michael J. Sobkin
331 Somerset Street West
Ottawa, Ontario
K2P 0J8
Telephone: (613) 282-1712
FAX: (613) 288-2896
Email: msobkin@sympatico.ca
Ottawa, Ontario
K2P 0J8
Telephone: (613) 282-1712
FAX: (613) 288-2896
Email: msobkin@sympatico.ca
Party: Microsoft Corporation
Counsel
Neil Finkelstein
James Sullivan
Brandon Kain
Catherine Beagan Flood
Sara Knowles
James Sullivan
Brandon Kain
Catherine Beagan Flood
Sara Knowles
McCarthy Tétrault LLP
Box 48, 5300-66 Wellington St. W.
Toronto Dominion Bank Tower
Toronto, Ontario
M5K 1E6
Telephone: (416) 362-1812
FAX: (416) 868-0673
Box 48, 5300-66 Wellington St. W.
Toronto Dominion Bank Tower
Toronto, Ontario
M5K 1E6
Telephone: (416) 362-1812
FAX: (416) 868-0673
Agent
D. Lynne Watt
Gowling WLG (Canada) LLP
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
Party: Microsoft Canada Co./Microsoft Canada CIE
Counsel
Neil Finkelstein
James Sullivan
Brandon Kain
Catherine Beagan Flood
Sara Knowles
James Sullivan
Brandon Kain
Catherine Beagan Flood
Sara Knowles
McCarthy Tétrault LLP
Box 48, 5300-66 Wellington St. W.
Toronto Dominion Bank Tower
Toronto, Ontario
M5K 1E6
Telephone: (416) 362-1812
FAX: (416) 868-0673
Box 48, 5300-66 Wellington St. W.
Toronto Dominion Bank Tower
Toronto, Ontario
M5K 1E6
Telephone: (416) 362-1812
FAX: (416) 868-0673
Agent
D. Lynne Watt
Gowling WLG (Canada) LLP
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
Party: Attorney General of Canada
Counsel
John S. Tyhurst
Attorney General of Canada
50 O'Connor Street, Suite 500, Room 546
Ottawa, Ontario
K1P 6L2
Telephone: (613) 670-6276
FAX: (613) 954-1920
50 O'Connor Street, Suite 500, Room 546
Ottawa, Ontario
K1P 6L2
Telephone: (613) 670-6276
FAX: (613) 954-1920
Agent
Christopher M. Rupar
Attorney General of Canada
50 O'Connor Street, Suite 500, Room 557
Ottawa, Ontario
K1A 0H8
Telephone: (613) 670-6290
FAX: (613) 954-1920
Email: christopher.rupar@justice.gc.ca
50 O'Connor Street, Suite 500, Room 557
Ottawa, Ontario
K1A 0H8
Telephone: (613) 670-6290
FAX: (613) 954-1920
Email: christopher.rupar@justice.gc.ca
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Civil procedure Class actions Certification Cause of action Passing on defence Corollary principle barring claims by indirect purchasers Whether it is plain and obvious that indirect purchasers in Canada have no remedy under Canadian law where they have suffered harm because of illegal and anti-competitive conduct Whether this case should have been certified as a class proceeding.
The appellants commenced an action against the respondents alleging that they committed anti-competitive wrongs enabling them to charge higher prices for some of their products. The appellants did not obtain their Microsoft products or software licenses directly from the respondents, but acquired them as “indirect purchasers” from re sellers or “direct purchasers” (“DPs”). The appellants pleaded causes of action for the common law torts of intentional interference with economic interests and conspiracy, and claimed damages pursuant to s. 36 of the Competition Act, R.S.C. 1985, c. C 34, for breaches of sections 45 and 52 of that Act. They also claimed unjust enrichment and waiver of tort. They applied for certification of a class proceeding pursuant to the Class Proceedings Act, R.S.B.C. 1996, c. 50. The respondents challenged the application arguing that it did not satisfy the requirements for certification. The Supreme Court of British Columbia granted the application for certification of the class action. A majority of the British Columbia Court of Appeal allowed the appeal, set aside the order for certification, and dismissed the appellants’ action on the basis that it was plain and obvious that the representative plaintiffs, as indirect purchasers, have no cause of action maintainable in law.
Lower court rulings
July 6, 2006
Supreme Court of British Columbia
L043175, 2006 BCSC 1047
Supreme Court of British Columbia
L043175, 2006 BCSC 1047
Respondents’ application to strike out applicants’ entire Statement of Claim and to dismiss action, dismissed; Order granted striking out portions of Statement of Claim
November 24, 2006
Supreme Court of British Columbia
L043175, 2006 BCSC 1738
Supreme Court of British Columbia
L043175, 2006 BCSC 1738
Applicants granted leave to amend Statement of Claim
March 5, 2010
Supreme Court of British Columbia
L043175, 2010 BCSC 285
Supreme Court of British Columbia
L043175, 2010 BCSC 285
Application for certification as a class action granted
April 15, 2011
Court of Appeal for British Columbia (Vancouver)
2011 BCCA 186, CA034325, CA037968
Court of Appeal for British Columbia (Vancouver)
2011 BCCA 186, CA034325, CA037968
Appeal allowed, certification order set aside, and applicants’ action dismissed
Memorandums of argument on application for leave to appeal
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If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
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Date modified: 2025-02-27