( ii) Between March 12, 2010 and December 31, 2011, did
the defendants and/or any unnamed co-conspirators
conspire, agree or arrange with each other to
(A) fix, maintain, increase or control the price of
(B) allocate sales, territories, customers or markets
for the production or supply of lithium batteries;
(C) fix, maintain, control, prevent, lessen or eliminate
the production or supply of lithium batteries?
( iii) Did class members suffer loss or damage as a result?
(b) Are the defendants, or any of them, liable in tort for conspiracy
to fix prices for lithium batteries? In particular,4
( i) Did the defendants and/or any unnamed co-conspirators
engage in unlawful conduct (by contravening s. 45 of
the Competition Act)?
( ii) Was the defendants’ unlawful conduct directed towards
( iii) Did the defendants know, or ought [they] to have
known, in the circumstances that injury to class
members was likely to result?
( iv) Did class members suffer loss or damage as a result?
(c) Over what period of time did the conspiracy take place?
(d) Over what period of time did the conspiracy affect the price
of lithium batteries and/or lithium battery products?
(e) Did the defendants, or any of them, take affirmative or
fraudulent steps to conceal the conspiracy?
4 The amended certification order following the Divisional Court’s decision
certifying the unlawful means conspiracy claim was not provided to the
court. For the purposes of this appeal, we have assumed that the unlawful
means conspiracy issue was certified by the Divisional Court in the form
proposed in the fresh as amended notice of motion, with the necessary
modifications to reflect the common issues that were not pursued on the
certification motion. Any issues that may arise regarding the proper wording of
the certification order are to be addressed by the certification judge.