BC court defers ruling on striking affidavit statements in beef price fixing class action

The B.C. Supreme Court recently decided to adjourn a procedural dispute in a proposed class action lawsuit alleging a conspiracy to fix beef prices until the certification hearing scheduled for next January.

The certification hearing will determine whether the case meets the criteria for proceeding as a class action under B.C.’s Class Proceedings Act, 1996. The underlying action involves claims that the defendants conspired to manipulate the price of beef to the detriment of a proposed class, including the plaintiff in this case.

The plaintiff filed the present application to exclude statements in the defendants’ affidavits that denied the existence of the alleged conspiracy.

The court should not admit these statements at the certification stage, as the task of the certification judge was not to adjudicate the merits of the case, the plaintiff argued. Instead, the judge should assess whether some basis in fact existed to establish that the claims raised common issues suitable for class-wide determination under s. 4(1)(c) of the Act, the plaintiff said.

The defendants opposed and claimed that these statements were relevant to the certification process. Their evidence was admissible at this stage because deciding whether there was some basis in fact for the common issues would necessarily involve a preliminary assessment of the merits, the defendants said.

The court’s ruling

In Bui v Cargill, Incorporated, 2024 BCSC 1364, the B.C. Supreme Court exercised its discretion to adjourn the application of the plaintiff to the certification hearing. The court found it inappropriate to provide a legal interpretation of the Act or to apply it to the facts of the case before the certification hearing. The court also deferred the issue of costs associated with the application.

The court accepted that resolving the plaintiff’s application would require determining the proper legal test under s. 4(1)(c). However, the court expressed concerns about tackling this issue before the certification hearing. Doing so would involve deciding upon conflicting interpretations of the law with only a partial evidentiary record and would lead to a piecemeal approach to the certification process, the court explained.

The court gave the defendants the opportunity to fully argue the relevance of their affidavit evidence at the certification hearing. Preemptively excluding the challenged statements would not serve the interests of justice, the court noted.

The court considered the plaintiff’s argument that addressing this issue now would help clarify the legal test for certification and would help avoid potential surprises. Ultimately, the court held that the plaintiff failed to clearly articulate how refraining from striking the statements would cause prejudice at the certification hearing.

In rejecting the plaintiff’s arguments, the court noted that uncertainty regarding the legal test was a natural part of the litigation process and would not amount to a “trial by ambush”.