The primary issue on the plaintiff’s appeal was whether the Competition Act provided a “complete code” for remedies for breach of the Act, or whether a breach of the Competition Act could also give rise to “unlawful means” that could ground a claim for damages in common law or equity independent of the statutory remedies contained in the Act. In deciding this case, the Court of Appeal considered (a) whether the breach of a statute could amount to “unlawful means” and (b) whether breach of the Competition Act in particular could amount to “unlawful means.”
On the first question, the Court of Appeal held that “unlawful means” could be established by a statutory breach. The Court held that this principle was already established in the case law.
On the second question, the Court of Appeal held that a breach of the Competition Act in particular could give rise to “unlawful means.” The Court cited its previous holding in Wakelam for the proposition that a breach of the Competition Act alone could not ground claims for restitutionary remedies, but distinguished it from claims based on the tort of unlawful means conspiracy. In the Court’s view, there was no evidence of legislative intent to limit civil remedies for breach of the Competition Act to those remedies contained in the Act. The Court held that the scheme for civil redress contained in s. 36 of the Competition Act was not intended to replace the common law action in unlawful means conspiracy. The fact that the statutory and common law causes of action had different elements, remedies and limitation periods was evidence that the legislature intended them to co-exist.
For these reasons, the B.C. Court of Appeal held that a breach of the Competition Act could constitute “unlawful means” and ground claims for damages in common law or equity.
The Court of Appeal then turned to the cross-appeal, the focus of which was whether the court below had correctly interpreted and applied section 4(1)(a) of the British Columbia Class Proceedings Act,5 which requires the pleadings to disclose a proper cause of action in order to be certified as a class action.
The Court of Appeal gave deference to the lower court’s decision with only one exception. The Court of Appeal agreed with the defendants that Bauman C.J. erred in certifying the plaintiff’s statutory claim for conspiracy under s. 36(1) and s. 45 of the Competition Act because the pleadings did not disclose a proper cause of action. The plaintiff’s pleadings failed to state that the defendants made any agreements with a “competitor” as required by s. 45. Although the plaintiff had pleaded that agreements were made between banks, networks and issuers of credit cards, these entities were not in competition with one another. The pleadings could not be read to allege agreements between banks and other banks, for instance, who were competitors.