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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 of indirect purchasers Whether this case should have been certified as a class proceeding Whether a constructive trust can be ordered in the absence of a direct link or proprietary nexus If a direct link or nexus is required, what is the content of that requirement Whether a constructive trust can be ordered where a monetary award will be an adequate remedy On what factual basis must the court address the certification requirements of the Class Proceedings Act?

The appellants (the “Purchasers”) brought claims against the respondents (the “Producers”) alleging that they illegally engaged in an intentional, secret conspiracy to fix the price of high fructose corn syrup (“HFCS”), a sweetener used in various manufactured food products, predominantly soft drinks. As a result of the Producers’ price fixing activity, it is alleged that they overcharged direct purchasers (“DPs”) like the representative plaintiff Sun Rype Products Ltd. for the syrup. The overcharge was passed through to indirect purchasers (“IPs”) like the representative plaintiff Wendy Weberg, appellant, who consumed the end product. The causes of action alleged by the Purchasers were: i) contraventions of s. 45(1) of Part VI of the Competition Act, R.S.C. 1985, c. C 34 and damages under s. 36(1); ii) tortious conspiracy and intentional interference with economic interests; iii) unjust enrichment, waiver of tort and constructive trust; and iv) punitive damages. The Purchasers brought an application to have the action certified as a class action pursuant to the Class Proceedings Act, R.S.B.C. 1996, c. 50, with the proposed class comprised of both DPs and IPs of the HFCS. The Producers denied any wrongdoing and challenged the application on many fronts. A focus became whether the Producers were precluded from relying on the passing on defence vis-à-vis the DPs and, if so, whether IPs are similarly precluded from having a cause of action against the Producers. The Supreme Court of British Columbia granted the application for certification. A majority of the Court of Appeal for British Columbia allowed the Producer’s appeal and set aside the certification order with respect to those Purchasers who are IPs, holding that they had no cause of action. The application was remitted to the trial court for consideration with respect to DPs.