CIPPIC Files Its Factum in NHK Spring Co., Ltd. v. Cheung at the Supreme Court of Canada

CIPPIC has filed its intervener factum in NHK Spring Co., Ltd. v. Cheung (SCC File No. 41451). The appeal asks whether Canadian competition law and Canadian courts reach a foreign conspiracy that allegedly raised prices for purchasers in Canada. CIPPIC's submissions address one part of that question — how a court should locate a tort, and decide whether it can hear the claim, when a tortfeasor acts through digital technology.

Background

The underlying claim is a price-fixing class action. The respondents allege that the appellants, foreign manufacturers that produced roughly 96% of the world's supply of a small component used in hard disk drives, conspired abroad to inflate its price, and that the overcharge passed down the supply chain to purchasers in British Columbia and across Canada. The appellants have no presence in Canada and made no sales here. The Supreme Court of British Columbia certified the action and found that it had jurisdiction, and the Court of Appeal upheld that decision.

The Legal Issue

The appeal raises two issues. The first asks whether the criminal conspiracy provision of the Competition Act reaches conduct that took place entirely outside Canada. The second asks whether the British Columbia courts have jurisdiction over the foreign defendants, which turns on whether harm felt in the province can connect the claim to Canada when the alleged conduct occurred elsewhere. CIPPIC's factum addresses only the second issue.

CIPPIC's Intervention

CIPPIC intervenes because the rule the Court adopts for locating a tort will govern every tort, including the growing class of wrongs that tortfeasors commit through digital technology. These include online defamation, intrusion upon seclusion, the non-consensual distribution of intimate images, online harassment, and online fraud.

CIPPIC asks the Court to decline a rule that locates a tort only where the defendant acted. Digital technology disperses a tortfeasor's conduct across jurisdictions, and tortfeasors routinely conceal where they act. A rule tied to the place of acting would send victims to a forum they often cannot identify, reach, or afford, and would leave an entire class of claimants without a workable court. A rule that leaves a class of claimants with no forum denies them access to justice. That barrier would fall hardest on victims of technology-facilitated gender-based violence (TFGBV), whose abusers obscure where they act while the harm lands in the victim's own community.

CIPPIC submits that the existing framework already locates these torts correctly. In Club Resorts Ltd. v. Van Breda, the Supreme Court of Canada set out the connecting factors that link a claim to a province, and it has long held that a tort committed by conveying content to others occurs where the audience receives it. On that reasoning, the Court has located defamation in the place where readers download and read the material, and the same approach reaches the wider class of technology-facilitated torts. The framework also carries its own safeguards against overreach through the rebuttal stage and the doctrine of forum non conveniens, so a Court can turn away weakly connected claims without shutting out whole categories of claim at the threshold.

Other Interveners

The Supreme Court also granted leave to intervene to seven other parties: the Attorney General of Canada, the Attorney General of Ontario, the Public Interest Litigation Institute, the Consumers Council of Canada, Meta Platforms, Inc., the Criminal Lawyers' Association (Ontario), and Pass Herald Ltd.