The second stage of the Anns/Cooper test comes down to
a “normative” assessment of “whether it would be better, for
reasons relating to legal or doctrinal order, or reasons arising
from other societal concerns, not to recognize a duty of care in
a given case”: Livent, at para. 40. A court may decline to recognize
a prima facie duty of care on the basis of indeterminate liability,
although indeterminate liability is merely a policy consideration,
not a policy veto, and rarely should a concern for indeterminate
liability persist if a proper proximity and foreseeability analysis is
done at stage one of the Anns/Cooper test: Livent, at paras. 42, 45.
 In our view, normative concerns about indeterminate
liability do not apply in the context of the statutory claim in this
case because, when it comes to a claim under s. 36 for loss or
damage resulting from a conspiracy under s. 45 of the Competition
Act, the normative concerns have already been taken care of by
Parliament. In other words, concerns that might otherwise drive
the application of the principle of indeterminate liability
disappear in the face of the exacting statutory provisions.
 All claims under s. 36 require the plaintiff to establish that
he or she “suffered loss or damage as a result of . . . conduct that is
contrary to any provision of Part VI”. He or she may only
recover “loss or damage proved to have been suffered” as a result
of that conduct.
 When the alleged conduct is a conspiracy under s. 45, the
plaintiff must start by proving the defendant actually conspired
to engage in anti-competitive conduct. The essence of conspiracy
under s. 45 is an agreement — a meeting of the minds — to do
one of the things enumerated in that provision. Here, the defendants are alleged to have agreed to fix prices, unlawful conduct
under the former s. 45(1)(b) and the current s. 45(1)(a). They are
also alleged to have agreed to “unduly” lessen competition in the
production, manufacture, sale and/or supply of LIBs, unlawful
conduct under s. 45(1)(c) of the former provision. This conduct is
said to have resulted in increased prices. The pleadings suggest
that the defendants directed their conduct at the proposed class
(including umbrella purchasers), knowing and intending that the
proposed class was likely to be injured.
 Although the actus reus under s. 45 changed slightly when
the provision was amended, it remained focused on whether the
alleged conspirator was part of an agreement and whether that
agreement was to do something that is prohibited by virtue of s. 45.
The mens rea contained in s. 45 has both subjective and objective
components. The subjective component requires that the defendant
intend to agree, with knowledge of the terms of that agreement.