(2) Section 5(1)(a): Do the pleadings disclose a cause of action?
(a) Plain and obvious test
 Section 5(1)(a) of the Class Proceedings Act requires that
the certification judge ask whether, assuming the pleaded facts to
be true, it is “plain and obvious” that a claim does not exist or, to
put it another way, whether the claim has no reasonable prospect
of success: R. v. Imperial Tobacco Canada Ltd.,  3 S.C.R. 45,
 S.C.J. No. 42, 2011 SCC 42, at paras. 17, 22; Anderson v.
Wilson (1999), 44 O.R. (3d) 673,  O.J. No. 2494 (C.A.), at
p. 679 O.R.; Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d)
401,  O.J. No. 4924 (C.A.), at para. 41; Hollick, at para. 25.
(b) The Divisional Court’s reasons
 The non-umbrella purchasers have two certified claims:
their statutory claim and their claim for unlawful means conspiracy.
In excluding the umbrella purchasers from those claims, the
Divisional Court agreed with the certification judge that to allow
the umbrella purchasers, who did not purchase LIBs or LIB
products containing LIBs originating from the defendants, to
proceed would expose the respondents to indeterminate liability.2
 The appellants contended before the Divisional Court, and
continue to contend in this court, that the principle of indeterminate liability does not apply to claims involving an intentional
component. They say indeterminate liability — which is a relevant
consideration in assessing whether a prima facie duty of care in the
negligence context is negated by residual policy considerations — is
not relevant to the statutory claim or the unlawful means
 The Divisional Court rejected the appellants’ indeterminate liability argument. While acknowledging that there are some
situations where negligence concepts may not apply to intentional
torts,3 the Divisional Court saw no reason why claims for
2 Although the certification judge gave four reasons for why the umbrella
purchasers’ claims should not be certified, the Divisional Court only agreed
with the reasoning related to indeterminate liability. The respondents do not
object to the Divisional Court’s rejection of the other three reasons given by the
certification judge in support of his decision refusing to certify the umbrella
purchasers’ claims. Consistent with the parties’ approach on appeal, we only
address the question of indeterminacy and whether it justifies removing the
umbrella purchasers from the claims.
3 The Divisional Court acknowledged that reasonable foreseeability does not
apply to the intentional tort of battery: Bettel v. Yim (1978), 20 O.R. (2d)
617,  O.J. No. 3471, 88 D.L.R. (3d) 543 (Co. Ct.).