Maureen Littlejohn, for respondents LG Chem. Ltd. and LG
Chem America, Inc.
BY THE COURT: —
 The appellants are representative plaintiffs in a certified class
action. They sued the defendant manufacturers and suppliers on
the basis that they conspired to raise, maintain, fix and/or stabilize
the price of lithium-ion batteries (“LIBs”) sold in Canada
between January 2000 and December 2011 (the “conspiracy
period”). Their collusion is said to have impacted the entire LIB
market by triggering an increase in the price for all LIBs and
lithium-ion products (“LIB products”) during the conspiracy
period, beyond what the free market would naturally produce.
Accordingly, the conspiracy is alleged to have impacted all
purchasers, those whose LIBs originated from the defendants
(the “non-umbrella purchasers”) and those whose LIBs originated
from non-defendants (the “umbrella purchasers”).
 The appellants sought to have multiple causes of action
certified under the Class Proceedings Act, 1992, S.O. 1992, c. 6,
including unlawful means conspiracy and a statutory cause of
action under s. 36 of the Competition Act, R.S.C. 1985, c. C-34, for
breach of s. 45 of the Act (the “statutory claim”). The certification
judge refused to certify the unlawful means conspiracy claim but
certified the statutory claim, although only in relation to the non-umbrella purchasers. The certification judge provided several
reasons for excluding the umbrella purchasers from the class
pursuing relief in respect of the certified statutory claim, including
that the defendants would be exposed to indeterminate liability if
the claim by umbrella purchasers were allowed to proceed.
 The appellants sought leave to appeal the certification
judge’s decision to the Divisional Court. The Divisional Court
granted leave to appeal on only two issues: (a) whether the certification judge erred in denying certification of the appellants’
unlawful means conspiracy claim; and (b) whether the certification
judge erred in removing the umbrella purchasers from class
membership: Shah v. LG Chem Ltd.,  OJ. No. 4170, 2016
ONSC 4670 (Div. Ct.), at para. 46. The Divisional Court found
error on the first point, resulting in the certification of the unlawful
means conspiracy claim, but no error on the second point, agreeing
with the certification judge’s concern over indeterminate liability.
 The Divisional Court also expressed the view that the appellants had failed to (a) plead the requisite elements of the claims
relating to the umbrella purchasers; (b) establish common issues for