IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Williams v. Audible Inc.,  
022 BCSC 834  
2
Date: 20220518  
Docket: S1810561  
Registry: Vancouver  
Between:  
And  
John Williams  
Plaintiff  
Audible Inc., Apple, Inc., Apple Canada Inc.,  
Amazon.com, Inc. and Amazon.com.ca, Inc.  
Defendants  
Brought under the Class Proceedings Act, R.S.B.C. 1996, c. 50  
Before: The Honourable Madam Justice Horsman  
Reasons for Judgment  
Counsel for the Plaintiff:  
Counsel for Apple Inc.:  
Counsel for Audible Inc.:  
D. Klein  
M. Good  
C. Hannouche  
A. Klein  
C. Woodin  
E. Davis  
E. Schiff  
R. Hughes  
M. Sampson  
A. Goodman  
R. Eghan  
Place and Date of Hearing:  
Place and Date of Judgment:  
Vancouver, B.C.  
February 22–25, 2022  
Vancouver, B.C.  
May 18, 2022  
Williams v. Audible Inc.  
Page 2  
Table of Contents  
INTRODUCTION ....................................................................................................... 4  
FACTUAL BACKGROUND....................................................................................... 5  
The exclusivity provisions in the Apple–Audible agreements................................. 5  
The deletion of the Exclusivity Provisions .............................................................. 7  
The procedural history............................................................................................ 8  
The notice of civil claim and certification application material............................. 9  
The amended notice of civil claim and further evidence on certification ........... 11  
The further amended notice of civil claim.......................................................... 12  
SUMMARY OF THE APPLICATIONS..................................................................... 12  
AUDIBLE’S STAY APPLICATION.......................................................................... 15  
The Amazon Stay Decision .................................................................................. 16  
Discussion............................................................................................................ 18  
THE DEFENDANTS’ SUMMARY JUDGMENT APPLICATION.............................. 19  
The test for summary judgment............................................................................ 19  
The defendants’ application for summary judgment on the merits ....................... 20  
The claim for damages under s. 36 of the Competition Act .............................. 21  
The parties’ positions .................................................................................... 22  
The evidentiary issues................................................................................... 24  
Legal principles.......................................................................................... 24  
Discussion ................................................................................................. 26  
The Pecman Affidavit #1............................................................................ 27  
The Pecman Affidavit #2............................................................................ 30  
The Westermann Affidavit ......................................................................... 30  
Section 45 of the Competition Act................................................................. 31  
Legislative evolution and history................................................................ 33  
Scope of s. 45 of the Competition Act........................................................ 35  
Should the plaintiff’s claim for damages under s. 36 of the Competition Act be  
summarily dismissed?................................................................................... 37  
Summary of conclusion on the summary judgment application on the merits42  
The defendants’ application for summary judgment on the limitation defence ..... 42  
THE PLAINTIFF’S CERTIFICATION APPLICATION ............................................. 44  
Certification requirements..................................................................................... 44  
Williams v. Audible Inc.  
Page 3  
Discussion ........................................................................................................ 45  
The common issues and preferability requirements............................................. 46  
The plaintiff’s proposed common issues and revisions to the common issues..... 48  
Discussion............................................................................................................ 50  
Williams v. Audible Inc.  
Page 4  
INTRODUCTION  
[
1]  
There are three applications before the Court.  
[
2]  
First, the plaintiff applies for certification of this action as a class proceeding  
pursuant to the Class Proceedings Act, R.S.B.C. 1996, c. 50 [CPA]. The action is  
focused on exclusivity provisions in an agreement between the defendants Audible  
Inc. (“Audible”) and Apple Inc. (“Apple”) relating to the distribution and sale of digital  
downloadable audiobooks in Canada. The plaintiff alleges that the defendants’  
conduct in agreeing to the exclusivity provisions violates the Competition Act, R.S.C.  
1
985, c. C-34 [Competition Act] and the Business Practices and Consumer  
Protection Act, S.B.C. 2004, c. 2 [Consumer Act], and constitutes the tort of civil  
conspiracy. The plaintiff seeks to certify this action as a class action brought on  
behalf of persons in Canada who purchased digital downloadable audiobooks from  
the iTunes store or the Audible website between March 12, 2010 and January 15,  
2
017.  
[
3]  
Second, Apple applies for summary judgment dismissing all claims against it  
pursuant to Rule 9-6 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [SCCR],  
and Audible seeks summary judgment dismissing the Consumer Act claims. The  
defendants say that the undisputed evidence confirms that the agreement in issue in  
this case was not unambiguously harmful to competition, which is fatal to all of the  
causes of action advanced by the plaintiff. Alternatively, the defendants say that if  
summary judgment is not granted dismissing the entire action, then at minimum, any  
claims should be limited to audiobook purchases made no later than two years  
before the notice of civil claim was filed.  
[
4]  
Third, the defendant Audible applies to extend the terms of a consent stay of  
proceedings under s. 15 of the Arbitration Act, R.S.B.C. 1996, c. 55 [Arbitration Act].  
The consent stay does not currently extend to relief sought by the plaintiff under the  
Consumer Act—which the parties agree may be pursued in court despite an  
 
Williams v. Audible Inc.  
Page 5  
arbitration clause in the contract between the plaintiff and Audible. Audible joins with  
Apple in the summary judgment application as it relates to the Consumer Act claims.  
[
5]  
FACTUAL BACKGROUND  
6] The factual background underpinning this action is relatively straightforward.  
By consent, these three applications were heard at the same time.  
[
The procedural history and legal issues are more complex.  
The exclusivity provisions in the Apple–Audible agreements  
[
7]  
Audible is an audiobook publisher. Like other audiobook publishers, it  
purchases licenses to recordings from major book publishers. Audible developed  
proprietary software to digitize audiobooks for online distribution. Beginning in 1997,  
customers could purchase Audible products for download directly from Audible’s  
website.  
[
8]  
Apple is a multinational technology company that designs, develops, and sells  
consumer electronics, software, and online services. Apple operates a variety of  
online marketplaces for the sale of digital products and services, including the  
iTunes Store. Apple’s iTunes Store allows customers to purchase and download  
media, including audiobooks. The iTunes stored was launched in April 2003.  
[
9]  
On May 14, 2003, Audible and Apple entered into a Digital Download Sales  
Agreement which permitted Apple to sell Audible audiobooks on iTunes. On  
September 17, 2003, the parties replaced their prior agreement with a second Digital  
Download Sales Agreement (the “2003 Agreement”), which covered a range of  
matters related to Apple’s supply and distribution of Audible audiobooks. The 2003  
Agreement contained exclusivity provisions that imposed the following restrictions:  
a) Audible could not authorize or otherwise permit any commercially branded  
internet-based digital download/streaming distribution service primarily  
 
 
Williams v. Audible Inc.  
Page 6  
directed to music, other than Apple, to integrate Audible Content (as  
defined in the 2003 Agreement) into its service for commercial sale;  
b) Apple was to source all English audiobooks it wished to market on the  
iTunes store from Audible if Audible held the rights to the audiobooks. If  
Audible did not hold the rights, then Apple had to give Audible 90 days to  
acquire the rights.  
[
10] On July 27, 2006, Apple and Audible replaced the 2003 Agreement with a  
Global Master Agreement (the “2006 Agreement”).  
[
11] The focus of the proposed class action is the exclusivity provisions in Clause  
.8 of the 2006 Agreement, which were revised somewhat from the 2003  
4
Agreement. The entire text of Clause 4.8(a) and (b) is contained in Appendix A to  
this judgment. In summary form, Clause 4.8(a) and (b) provided:  
4
.8(a) Audible was prohibited from integrating its content with any internet-based  
store or distribution service that used digital downloading or streaming—  
other than Apple—unless the store or distribution service did not include a  
digital music or music/video downloads store or offering. Audible was  
permitted to include links, displays, and web banners at any other sites,  
excluding sites that offer digital music or music/video downloads, provided  
that the purchase transaction, checkout, and invoicing was conducted on  
Audible.com as a separate transaction from purchases of any digital  
music or music/video downloads (the “Restrictions on Audible”); and,  
4
.8(b) Subject to limited exceptions, Apple was required to source audiobooks  
exclusively from Audible, unless Audible did not have the rights, in which  
case Audible had 150 days to acquire the rights (the “Restrictions on  
Apple”).  
(Collectively, the “Exclusivity Provisions”)  
Williams v. Audible Inc.  
Page 7  
[
12] Under the 2006 Agreement, Audible was allowed to continue engaging in  
direct sales of audiobooks from its website. In this sense, Apple and Audible  
operated at the same level in the production/distribution chain, and were competitors  
in the sale of downloadable audiobooks. The plaintiff’s claim under s. 45 of the  
Competition Act is dependent on the characterization of the arrangement between  
Apple and Audible as a horizontal agreement between competitors to limit  
competition.  
[
13] Amazon was not a party to the 2003 Agreement or the 2006 Agreement.  
Audible and Amazon entered into a Co-Branding, Marketing and Distribution  
Agreement, dated January 30, 2000 (the “Co-Branding Agreement), pursuant to  
which Amazon advertised Audible content on Amazon’s website. Audible was  
acquired by Amazon in 2008. This acquisition did not create any agreements related  
to the sale of audiobooks between Apple and Amazon.  
[
14] The 2006 Agreement between Apple and Audible was to continue until  
September 30, 2010, with automatic one-year renewal periods. On July 1, 2010,  
Audible and Apple amended the 2006 Agreement to extend it to December 31,  
2
011, after which either party could terminate the 2006 Agreement for any reason  
with 60 days’ notice.  
The deletion of the Exclusivity Provisions  
15] The Exclusivity Provisions were deleted from the 2006 Agreement, effective  
[
January 15, 2017. The deletion followed the initiation of inquiries by European  
competition regulators into the Exclusivity Provisions. The plaintiff has put into  
evidence the following three press releases to show the concern of European  
regulators regarding the impact of the Exclusivity Provisions on competition in the  
audiobook market:  
(1)  
A press release issued by the Bundeskartellamt, the German antitrust  
regulator, on November 16, 2015. The press release indicated that the  
Bundeskartellamt had initiated administrative proceedings against Apple  
 
Williams v. Audible Inc.  
and Audible following a complaint by the German Publishers and  
Page 8  
Booksellers Association that objected to various practices used by  
Audible, “including its exclusive supply of audiobooks to Apple’s iTunes  
Store”;  
(
2)  
3)  
A press release issued by the Bundeskartellamt on January 19, 2017,  
announcing that the regulator had closed its administrative proceedings  
against Audible and Apple following the deletion of the Exclusivity  
Provisions;  
(
A press release issued by the European Commission welcoming the  
decision by Apple and Audible to delete the Exclusivity Provisions, a  
step that was expected to “improve competition in downloadable  
audiobook distribution in Europe.”  
[
16] As I understand the plaintiff’s position, he says that these press releases are  
of primary relevance to the limitation defence that the defendants advance. The  
plaintiff pleads that the defendants’ unlawful conduct was not discoverable until  
January 2017, when the defendants publicly announced the deletion of the  
Exclusivity Provisions, and European competition regulators announced the  
conclusion of their investigations.  
The procedural history  
[
17] The plaintiff’s theory of his case has changed over time. The notice of civil  
claim was amended both shortly before the date for the original hearing of the  
certification application in February 2020, and shortly before the hearing of the  
present applications. In the course of his submissions at the hearing, the plaintiff  
further narrowed his claim. The plaintiff’s evolving theory of his case has created  
some difficulties, including in relation to the evidence he relies on in support of  
certification. The defendants say that the evidentiary difficulties are, in themselves, a  
reason to refuse certification.  
 
Williams v. Audible Inc.  
Page 9  
[
18] In order to understand some of the arguments advanced by the parties on  
these applications, it is necessary to review the procedural history.  
The notice of civil claim and certification application material  
[
19] The plaintiff filed his original notice of civil claim on September 27, 2018. The  
notice of civil claim alleges that in 2003, Apple and Audible entered into an exclusive  
agreement for the provision of audiobooks. Pursuant to this agreement, Audible  
became the sole supplier of audiobooks to the Apple iTunes Store, and was  
forbidden from supplying audiobooks to any online platform for digital sale other than  
the iTunes store. The plaintiff further alleged that after Amazon acquired Audible in  
2
008, Amazon, Audible, and Apple entered into an agreement not to compete in the  
production, distribution, and sale of audiobooks, which permitted the defendants to  
charge an unlawful premium for audiobooks sold through the iTunes Store, and the  
Audible and Amazon websites.  
[
20] The plaintiff sought, and continues to seek, to recover the allegedly unlawful  
premium—or “Overcharge”, as it is termed in the notice of civil claim—on behalf of  
class members. In his notice of civil claim, the plaintiff pleads the following causes of  
action:  
a) Damages under s. 36 of the Competition Act as a remedy for the  
defendants’ alleged breach of s. 45 of that Act;  
b) General damages for the tort of civil conspiracy;  
c) Restitution of the Overcharge, or alternatively disgorgement of benefits, on  
the ground of unjust enrichment; and  
d) Remedies under s. 172 of the Consumer Act in relation to the defendants’  
alleged violation of ss. 8 and 9 of that Act through their unfair and  
unconscionable business practices.  
 
Williams v. Audible Inc.  
Page 10  
[
21] The plaintiff filed his certification application on May 30, 2019. The orders  
sought by the plaintiff included orders certifying the action as a class proceeding,  
and defining the class as all persons in Canada who purchased digital audiobooks  
from the Amazon or Audible websites or Apple’s iTunes Store between October 16,  
2
003 and the date of certification.  
[
22] In support of his certification application, the plaintiff served, among other  
affidavits, the Affidavit No. 1 of Dr. Roger Ware sworn April 12, 2019 (“Ware Affidavit  
1”). Dr. Ware is an expert economist. He was asked to opine on whether it would  
#
be possible to assess common economic harm to class members caused by the  
defendants’ wrongful conduct, to quantify that harm on an aggregate basis, and to  
quantify the economic gain to the defendants. For the purpose of his analysis,  
Dr. Ware was asked to assume that the exclusive agreement was between Audible,  
Amazon, and Apple, and that it covered worldwide sales from the three platforms.  
[
23] Apple and Audible filed their responses to civil claim on October 2, 2019. The  
defendants plead that the agreements between Apple and Audible were in the  
nature of dual distribution agreements, which are typically pro-competitive. The  
defendants plead that the agreements were not “hard core” or “naked” cartel  
agreements captured by the criminal prohibition in s. 45 of the Competition Act. The  
defendants deny that Amazon was a party to the distribution agreements. Audible  
additionally pleads that the plaintiff’s claims should be stayed as a result of a binding  
arbitration clause in the contracts between Audible and its customers.  
[
24] Apple and Audible subsequently filed material in response to the certification  
application: Apple on November 29, 2019 and Audible on December 4, 2019. The  
defendants’ evidence included copies of the 2003 Agreement and the 2006  
Agreement. The defendants also tendered evidence to establish that there is no  
agreement between Apple and Amazon with respect to audiobooks, and that the  
only agreement between Amazon and Audible relating to audiobooks was not  
exclusive during the class period. The defendants’ affidavit included the expert  
Williams v. Audible Inc.  
Page 11  
report of Dr. Ralph Winter (the “Winter Affidavit”), which criticized the workability of  
the methodology which had been proposed by Dr. Ware for quantifying common loss  
to the class, and gain to the defendants.  
The amended notice of civil claim and further evidence on certification  
[
25] On January 17, 2020, within weeks of the then-scheduled date for the hearing  
of the certification application, the plaintiff filed an amended notice of civil claim. The  
amendments, among other things, revised the plaintiff’s theory of Amazon’s liability  
to address the fact that Amazon is not a party to the agreements between Apple and  
Audible which contain the Exclusivity Provisions. The amendments included:  
a) a new plea that there were two separate agreements—the first between  
Apple and Audible, and the second between Audible and Amazon—that in  
combination amounted to a conspiracy by Apple, Audible, and Amazon;  
and,  
b) an allegation that the two agreements, in combination, were arrangements  
for the purpose of fixing prices, allocating markets, or restricting outputs,  
and thereby contravened s. 45 of the Competition Act.  
[
26] There was also a revision to the proposed class definition and class period to  
include persons in Canada who purchased digital downloadable audiobooks from  
the Audible website or the iTunes Store, but not the Amazon website, between  
September 28, 2003 and January 15, 2017.  
[
27] In addition, on January 17, 2020, the plaintiff served the Affidavit No. 2 of  
Dr. Ware, sworn January 6, 2020 (“Ware Affidavit #2”). In the Ware Affidavit #2,  
Dr. Ware responds to the Winter Affidavit, and to the other affidavits tendered by the  
defendants on certification. Dr. Ware indicates that the defendants’ affidavit  
evidence did not lead him to revise his opinions. He opines that the exclusive  
agreement between Apple and Audible, together with the Co-Branding Agreement  
between Amazon and Audible, were agreements between horizontal competitors, or  
 
Williams v. Audible Inc.  
Page 12  
potential competitors, that led to a lessening of competition in the market for  
audiobooks.  
[
28] As noted, the certification hearing did not proceed in February 2020.  
The further amended notice of civil claim  
[
29] On December 8, 2021, the plaintiff filed a further amended notice of civil  
claim. Through these amendments, the plaintiff has abandoned his claim against  
Amazon. Amazon is removed as a defendant. The plaintiff removed the allegation  
that the Co-Branding Agreement was part of an unlawful anti-competitive agreement  
between Amazon, Apple, and Audible. The amendments also revised the class  
period so that it runs from March 12, 2010 to January 15, 2017. March 12, 2010 is  
the date that the current version of s. 45 of the Competition Act came into force.  
January 15, 2017 is the date the Exclusivity Provisions were deleted from the 2006  
Agreement.  
[
30] Following these amendments, the Exclusivity Provisions in the 2006  
Agreement became the sole focus of the plaintiff’s claims.  
[
31] In the course of the hearing of these applications, the plaintiff further  
narrowed his claims by advising the Court that he no longer alleges that the  
Restrictions on Apple in Term 48(b) of the 2006 Agreement violate s. 45 of the  
Competition Act, but rather centres his claim solely on the Restrictions on Audible in  
Term 48(a).  
SUMMARY OF THE APPLICATIONS  
[
32] The three applications presently before the Court require some additional  
context.  
[
33] In a separate action, Vancouver Registry No. S1810560, the plaintiff seeks to  
certify a class proceeding against Amazon relating to an alleged agreement between  
Amazon and third-party sellers not to compete for the sales of new books, music,  
 
 
Williams v. Audible Inc.  
Page 13  
movies, and DVDs on the Amazon Canada website. Amazon’s contracts with its  
customers contain an arbitration clause. In a judgment issued on March 4, 2020, I  
granted Amazon’s application for a stay of proceedings under the Arbitration Act,  
other than in relation to the plaintiff’s claims under the Consumer Act: Williams v.  
Amazon.com, Inc., 2020 BCSC 300 [the “Amazon Stay Decision”]. The exemption  
for claims under the Consumer Act flows from the judgment of the Supreme Court of  
Canada in Seidel v. TELUS Communications Inc., 2011 SCC 15 [Seidel]. In Seidel,  
the Court held that claims under s. 172 of the Consumer Act may be pursued in  
court notwithstanding the existence of a mandatory arbitration clause.  
[
34] There is also an arbitration clause in Audible’s contract with the plaintiff.  
Audible concedes that, in light of Seidel, the arbitration clause does not prevent the  
plaintiff from pursuing remedies under s. 172 of the Consumer Act in court.  
However, Audible says that all other relief sought by the plaintiff in this action should  
be stayed because of the plaintiff’s contractual commitment to have any disputes  
resolved by arbitration. The plaintiff concedes that, at least for the time being, the  
Amazon Stay Decision generally prevents him from pursuing non-Consumer Act  
claims in court.  
[
35] The Amazon Stay Decision is under appeal. For the purpose of allowing the  
present applications to proceed while the appeal remains outstanding, the plaintiff  
and Audible reached a procedural agreement. The relevant terms, which are  
reflected in a consent order, are as follows:  
a) The “Non-Consumer Act Claims”—that is, all claims other than for relief  
under s. 172 of the Consumer Act—against Audible are stayed by  
consent, with two exceptions:  
(1)  
Relief sought on behalf of Alberta residents under Alberta’s  
Consumer Protection Act, R.S.A. 2000, c. C-26.3, and  
Williams v. Audible Inc.  
2)  
Page 14  
(
Claims of class members for the period from July 21, 2010 to  
September 5, 2012;  
b) The question of whether the stay should extend to claims within these two  
exceptions will be argued at the same time as the certification and  
summary judgment applications;  
c) The claim for relief on behalf of residents of British Columbia under s. 172  
of the Consumer Act is not stayed as against Audible;  
d) When the Court of Appeal renders a decision on the appeal of the  
Amazon Stay Decision, the plaintiff will be at liberty to apply to lift the stay  
of the Non-Consumer Act Claims, and Audible will be at liberty to oppose  
such application;  
e) The consent order is without prejudice to the “balance of the Notice of  
Application” by Audible for summary judgment under R. 9-6 of the SCCR.  
[
36] In the course of the hearing of the stay application, counsel for Audible  
confirmed that Audible does not seek to join in Apple’s application for summary  
judgment dismissing the Non-Consumer Act Claims. Those claims, as against  
Audible, have been stayed by consent pursuant to the Arbitration Act. Audible does  
seek summary judgment dismissing the Consumer Act Claims, as those claims have  
not been stayed.  
[
37] Accordingly, Audible’s application to extend the stay of proceedings are  
limited to the two exceptions identified in the consent order: (1) the claims of Alberta  
residents, and (2) the claims for the period July 2, 2010 to September 5, 2012. There  
is a dispute between the plaintiff and Audible as to whether the two exceptions are  
captured by the Amazon Stay Decision. Audible’s stay application addresses this  
dispute.  
Williams v. Audible Inc.  
Page 15  
[
38] In summary, in light of the consent stay, Audible’s application for summary  
judgment is limited to the Consumer Act claims against it. As there is no arbitration  
clause in Apple’s contracts with its customers, Apple is not a party to the stay  
application. Apple seeks summary judgment dismissing all claims against it. The  
plaintiff opposes the defendants’ applications and says they should be dismissed.  
The plaintiff seeks an order certifying this proceeding as a class proceeding.  
[
39] With that background in mind, it is convenient to deal with the applications in  
the following order:  
a) Audible’s application to extend the terms of the consent stay;  
b) The defendants’ application for summary judgment dismissing all claims  
against Apple and the Consumer Act claims against Audible; and  
c) The plaintiff’s certification application.  
AUDIBLE’S STAY APPLICATION  
[
40] The plaintiff opposes the extension of the consent stay of proceedings under  
the Arbitration Act to two groups of putative class members:  
a) residents of Alberta, whose claims are governed by the Alberta Consumer  
Protection Act, which prohibits the enforcement of arbitration clauses in  
consumer statutes;  
b) Class members who purchased audiobooks from Audible in the period  
from July 21, 2010 to September 5, 2012. Audible’s contracts with its  
customers did not contain an arbitration clause in this period.  
[
41] The parties agree that it is the former Arbitration Act that governs this  
application, and not the Arbitration Act, 2020 S.B.C. c. 2. Given that the test for a  
stay in favour of arbitration under the new Arbitration Act does not substantively  
differ from the test under the former Act, it is not necessary for me to address this  
 
Williams v. Audible Inc.  
Page 16  
point in any detail. I will proceed on the assumption that the parties are correct and it  
is the former Arbitration Act that governs.  
[
42] It is common ground that the plaintiff does not fall within either of the two  
categories of claimant that are the subject of this application. The plaintiff is a  
resident of British Columbia, not Alberta. British Columbia does not have legislation  
prohibiting the enforcement of arbitration clauses in consumer contracts. The plaintiff  
did not purchase audiobooks from Audible in the period from July 21, 2010 to  
September 5, 2012. On the certification hearing, the plaintiff has put forward two  
additional proposed representatives. One of them, D’Arcy O’Connor, who is a B.C.  
resident, deposes that she purchased audiobooks from Audible in the period  
between July 21, 2020 and September 5, 2012. Ms. O’Connor is not currently a  
plaintiff in this action.  
[
43] It is also common ground that this application turns on the interpretation of the  
scope of the Amazon Stay Decision. The issue in dispute between the plaintiff and  
Audible is whether my reasoning the Amazon Stay Decision mandates that the stay  
extend to the two categories of claimants described in the consent order. As noted,  
the parties have reached a procedural agreement establishing the process that will  
follow in the event that the Amazon Stay Decision is reversed on appeal. The  
starting point for the determination of the present application is, accordingly, a  
review of the Amazon Stay Decision.  
The Amazon Stay Decision  
[
44] In the Amazon Stay Decision, I granted Amazon’s application for a stay of  
proceedings under the Arbitration Act, other than in respect to relief sought under  
the Consumer Act. In that case, the plaintiff created an account with Amazon in  
2
015, and subsequently purchased products from Amazon. In so doing, the plaintiff  
agreed to be bound by Conditions of Use that were in effect as of October 2014, and  
which included a mandatory arbitration clause. There was a previous version of the  
Conditions of Use that were in effect between 2002 and 2014, which contained a  
 
Williams v. Audible Inc.  
Page 17  
different mandatory arbitration clause. Among the disputes between the parties was  
the relevance of the version of the Conditions of Use that was effective before the  
plaintiff became a customer of Amazon.  
[
45] In the Amazon Stay Decision, I concluded that Amazon had established the  
prerequisites to a stay under the Arbitration Act, and further that the arbitration  
clause in the 2014 Conditions of Use was not void, inoperative, or incapable of being  
performed: Amazon Stay Decision at paras. 37–93. Furthermore, and importantly for  
the purpose of the present application, I addressed the issue of the effect of the stay  
of proceedings on the non-Consumer Act claims of putative class members other  
than the plaintiff. The plaintiff argued that even if his own claims were stayed, this  
should not prevent him from continuing the action on behalf of Alberta residents, and  
also on behalf of Amazon customers who purchased products prior to 2014 and  
were bound by what was said to be a more egregious version of the arbitration  
clause. The plaintiff relied on the decision of the Court of Appeal in MacKinnon v.  
Instaloans Financial Solution Centres (Kelowna) Ltd., 2004 BCCA 472 [MacKinnon]  
in support of the proposition that as a representative plaintiff in a proposed class  
action, he has standing to advance claims on behalf of potential class members that  
he would not have standing to maintain as an individual.  
[
46] I did not accept the plaintiff’s arguments. At paras. 96–98 of the Amazon Stay  
Decision, I set out my reasons for concluding that the plaintiff could not advance  
claims on behalf of other putative class members if his own claims were stayed:  
[
96]  
By analogy to MacKinnon, the plaintiff says that he may advance  
claims on behalf of other potential class members even if his own claims are  
stayed. For instance, the plaintiff says he may [make] Non-Consumer Claims  
on behalf of potential class members who agreed to the 2002 Conditions of  
Use or who entered into contracts with Amazon in Alberta which are  
governed by s. 16 of the Alberta Consumer Protection Act.  
[
97]  
In my view, MacKinnon is distinguishable from the present case. The  
issue in MacKinnon was whether the viability of pleaded claims in an existing  
proposed class proceeding should be assessed only by reference to causes  
of action between the plaintiff and the defendants, or by reference to causes  
of action that could be advanced by proposed class members.  
Williams v. Audible Inc.  
98] By contrast, the issue in the present case is whether s. 15 of the  
Page 18  
[
Arbitration Act mandates that I make an order “staying the legal proceedings”  
on the basis of the plaintiff’s contractual commitment not to bring the  
proceeding, at least in relation to the Non-Consumer Claims. The plaintiff’s  
argument that he has standing to continue the proceeding on behalf of  
potential class members simply begs the question of what proceeding he  
proposes to continue. If an order staying the proceeding is issued under s. 15  
of the Arbitration Act […], then there is no extant proceeding.  
[
47] In the result, I ordered that the proceeding be stayed in relation to all of the  
plaintiff’s non-Consumer Act claims.  
Discussion  
[
48] In opposing Audible’s stay application in the present case, the plaintiff  
advances the same argument that I rejected in the Amazon Stay Decision; that is,  
that the plaintiff can maintain claims on behalf of putative class members even if he  
himself cannot pursue the claims. The plaintiff says there are two features of the  
present case that distinguish it from the Amazon Stay Decision: (1) Audible’s stay  
application is being heard at the same time as the certification application, and  
(2) the plaintiff has put forward an additional proposed representative plaintiff,  
Ms. O’Connor, who made purchases at a time that there was no arbitration clause in  
the Audible customer contracts.  
[
49] On the first feature, there is no relevant distinction that I can perceive in the  
timing of Audible’s stay application. The plaintiff signed a consent order agreeing  
that no procedural or substantive steps taken to date or going forward in this  
proceeding by Audible will affect its right to pursue an application for a stay of  
proceedings under the Arbitration Act. While the parties may have agreed that it was  
most convenient to defer the hearing of Audible’s stay application until the  
certification hearing, that timing cannot, in light of the terms of the consent order,  
deprive Audible of its substantive right to pursue a stay of proceedings.  
[
50] On the second feature, I note as a starting point that Ms. O’Connor is not a  
representative plaintiff in this action simply because she swore an affidavit  
expressing her willingness to accept such an appointment. Ms. O’Connor swore her  
 
Williams v. Audible Inc.  
Page 19  
affidavit in December 2019, over two years ago. The plaintiff has not, to date,  
applied for leave to add or substitute a representative plaintiff.  
[
51] Furthermore, and in any event, the plaintiff cannot continue Non-Consumer  
Act Claims against Audible on behalf of Ms. O’Connor for the same reason that he  
cannot advance such claims on behalf of any other putative class member: if the  
plaintiff’s proceeding against Audible is stayed, there is no proceeding to continue.  
These circumstances fall directly within the scope of my reasoning in the Amazon  
Stay Decision.  
[
52] For these reasons, I grant Audible’s application and order a stay of the Non-  
Consumer Act Claims of Alberta residents and putative class members who  
purchased audiobooks in the 2010–2012 period. As reflected in the terms of the  
consent order, the plaintiff has leave to apply to lift the stay in the event that his  
appeal of the Amazon Stay Decision is allowed.  
THE DEFENDANTS’ SUMMARY JUDGMENT APPLICATION  
The test for summary judgment  
[
53] The principles that govern a defendant’s application for summary judgment  
pursuant to R. 9-6(4) of the SCCR are not in dispute.  
[
54] Rule 9-6 of the SCCR permits the court to grant judgment on the basis of a  
limited review, but not weighing, of the evidence. A defendant can succeed on an  
application under R. 9-6(4) by showing that the case pleaded by the plaintiff is  
unsound, or by adducing sworn evidence that provides a complete answer to the  
plaintiff’s claim: Beach Estate v. Beach, 2019 BCCA 277 [Beach] at para. 48. If the  
court is satisfied, based on the evidence, that the plaintiff has no chance of success,  
then summary judgment may be granted under R. 9-6. If a determination of the  
merits of the plaintiff’s claim requires a weighing of the evidence then judgment  
cannot be granted under R. 9-6: Beach at paras. 48-49.  
 
 
Williams v. Audible Inc.  
Page 20  
[
55] On an application under R. 9-6(4), the onus is on the defendant to show that  
there is no genuine issue for trial. A judge may only dismiss the action when,  
assuming the uncontested facts are true, they are satisfied that it is “beyond a doubt”  
that the action will not succeed: Aubichon v. Grafton, 2022 BCCA 77 at para. 27,  
citing Skybridge Investments Ltd. v. Metro Motors Ltd., 2006 BCCA 500 at  
paras. 11–12. In some complex cases involving novel questions of statutory  
interpretation where the judge is of the view that the evidence could unfold in ways  
affecting the interpretation, the proper course is to defer to trial the issues raised on  
a summary judgment application: Pearce v. 4 Pillars Consulting Group Inc., 2021  
BCCA 198 at para. 71.  
[
56] Each party—including the respondent to an application for summary trial—  
must put their best foot forward with respect to the existence or non-existence of  
material issues to be tried. A summary judgment motion cannot be defeated by  
vague references to what may be adduced in the future, if the matter is allowed to  
proceed: Canada (Attorney General) v. Lameman, 2008 SCC 14 at paras. 11 and  
1
9. At the same time, it must be recognized that the purpose of the summary  
judgment rule is to prevent claims that have no chance of succeeding from  
proceeding to trial, and not to prevent actions that have some potential for success  
from developing through the discovery process. However, in such cases, the  
respondent must demonstrate that there is a reasonable prospect that the further  
discovery will reveal the existence of a triable issue: Xiao v. Fan, 2020 BCSC 69 at  
paras. 48–49.  
The defendants’ application for summary judgment on the merits  
[
57] The defendants’ summary judgment application, as it relates to the merits of  
the plaintiff’s claims, is heavily dependent on the assertion that the plaintiff’s claim  
under the Competition Act is bound to fail. The defendants say that the plaintiff’s  
remaining claims are all dependent on a finding that the defendants were engaged in  
a criminal conspiracy, and therefore the dismissal of the Competition Act claim  
should lead to the dismissal of all claims. Conversely, the defendants must be taken  
 
Williams v. Audible Inc.  
Page 21  
to concede that if there is a triable issue in relation to the Competition Act claim, then  
the same is true of the plaintiff’s remaining claims. I will begin, therefore, by  
addressing the plaintiff’s claim under the Competition Act.  
The claim for damages under s. 36 of the Competition Act  
[
58] The central aspect of the plaintiff’s claims against the defendants is the  
allegation that the Restrictions on Audible in the Exclusivity Provisions violate s. 45  
of the Competition Act. The plaintiff seeks damages for the alleged violation, as  
permitted by s. 36. In order to properly delineate the scope of the plaintiff’s claim, it  
is important to distinguish between the criminal prohibition in s. 45 and the Act’s civil  
review provisions.  
[
59] Section 45 creates a per se criminal offence for competitors who enter into  
agreements or arrangements to fix prices, allocate markets, or restrict output. Other  
agreements or arrangements between competitors which are not per se illegal but  
which may prevent or lessen competition are reviewable by the Competition Tribunal  
(the “Tribunal”) under s. 90.1 of the Competition Act, on application by the  
Commissioner of Competition (the “Commissioner”). Section 90.1 is one of a number  
of provisions contained in Part VIII of the Competition Act—titled “Reviewable  
Matters”—which sets out the matters that are subject to civil review by the Tribunal.  
[
60] The Commissioner is the head of the Competition Bureau of Canada (the  
“
Bureau”). The Bureau has published Competitor Collaboration Guidelines (the  
Competitor Guidelines”). The Competitor Guidelines set out the Bureau’s approach  
“
to determining whether to assess an agreement or arrangement between  
competitors under the conspiracy provision in s. 45 of the Competition Act, or the  
reviewable matters provisions in Part VIII. If the Commissioner determines that there  
is sufficient evidence to establish that an agreement or arrangement violates s. 45,  
then the matter will be referred to the Director of Public Prosecutions.  
[
61] Section 36(1) of the Competition Act provides that any person who has  
suffered loss or damages as a result of (a) conduct that is contrary to any provision  
 
Williams v. Audible Inc.  
Page 22  
of Part VI, or (b) the failure of any person to comply with an order made under the  
Act, may sue for damages in any court of competent jurisdiction. Section 45 is  
contained in Part VI of the Act, which means a person who has suffered loss or  
damages as a result of a violation of s. 45 may be bring a claim for damages under  
s. 36. There is no right of action for damages for alleged violations of the reviewable  
matters in Part VIII, which includes s. 90.1.  
[
62] In some cases, a claim for damages under s. 36 of the Competition Act may  
follow on the defendant’s criminal conviction under s. 45. In such cases, there is no  
question that the defendant has engaged in conduct that is contrary to a provision of  
Part VI, and the only issue for trial will be the assessment of damages. In the  
present case, there is no criminal conviction and the defendants deny that their  
conduct was criminal. Accordingly, this Court will have to decide, in the first instance,  
whether there has been a breach of s. 45.  
The parties’ positions  
[
63] Apple argues that there is no genuine issue for trial because the undisputed  
evidence is that the 2006 Agreement created an arrangement that was capable of  
having pro-competitive effects. Apple says that the legislative history and context of  
s. 45 of the Competition Act makes it clear that Parliament only intended to capture  
conduct that is a “naked restraint” on trade, and unambiguously anti-competitive.  
Apple cites cases in which courts have dismissed unmeritorious claims under s. 45  
of the Competition Act on the basis of a review of the pleadings alone: Mohr v.  
National Hockey League, 2021 FC 488 [Mohr]; Latifi v. The TDL Group Corp., 2021  
BCSC 2183 [Latifi]. In the present case, Apple says that the evidence tendered on  
the summary judgment application is sufficient to establish an evidentiary basis, to  
the extent that is necessary, to show there is no genuine issue for trial.  
[
64] The plaintiff says that Apple’s proposed interpretation of s. 45 of the  
Competition Act ignores the plain language of the provision. The plaintiff emphasizes  
that s. 45(1) does not, on its express terms, contain an exemption for agreements  
 
Williams v. Audible Inc.  
Page 23  
that may have the potential to result in pro-competitive effects. The plaintiff says that  
the arguments that Apple is advancing are more properly considered as part of  
Apple’s pleaded defence under s. 45(4) of the Competition Act that applies where  
the impugned agreement is directly related to, and reasonably necessary for giving  
effect to, the objectives of a broader or separate agreement between the parties (the  
“ancillary effects defence”). The plaintiff cites authority in support of the proposition  
that the Competitor Guidelines, which Apple relies on in support of its statutory  
interpretation argument, are not binding, and that the question of whether conduct  
contravenes s. 45 should be assessed on the evidence: CCS Corporation v. Secure  
Energy Services Inc., 2013 ABQB 606.  
[
65] While I ultimately agree with the plaintiff that the question of whether the  
impugned conduct in this case contravenes s. 45 cannot be resolved on this  
summary judgment application, it is necessary for me to engage in the issue of  
statutory interpretation presented by this case in order to explain this conclusion.  
The question of whether there are factual contests over whether the defendants’  
conduct contravened s. 45 of the Competition Act requires, as a starting point, an  
understanding of the scope of conduct captured by s. 45.  
[
66] The statutory interpretation issue raises evidentiary disputes between the  
parties. In addition to the Competitor Guidelines, Apple’s evidence on the summary  
judgment application includes:  
a) Two affidavits from John Pecman, the former Commissioner of  
Competition, offering his expert opinion on the approach he anticipates the  
Competition Bureau would take to the agreements between Apple,  
Audible, and Amazon; and  
b) One affidavit from Dr. Kathrin Westermann, a German lawyer specializing  
in German and European competition law. She offers her expert opinion  
on whether the agreements between Apple and Audible can be  
considered “hardcore” cartel conduct under German or European  
Williams v. Audible Inc.  
Page 24  
competition law, and what inferences can be drawn from the press  
releases that the plaintiff relies on about the concerns of German and  
European regulators.  
[
67] The plaintiff says the evidence of these affiants is irrelevant and unnecessary.  
The plaintiff applies for orders striking the affidavits.  
The evidentiary issues  
[
68] I will first address the evidentiary disputes between the parties before turning  
to the question of the proper interpretation of s. 45 of the Competition Act.  
Legal principles  
[
69] As the Supreme Court of Canada has directed on repeated occasions, the  
process of statutory interpretation is to be undertaken in accordance with the  
modern rule”. The modern rule requires that the words of a statute be read in their  
“
entire context, and in their grammatical and ordinary sense harmoniously with the  
scheme of the Act and statutory objects and purposes: Rizzo & Rizzo Shoes Ltd.  
(Re), [1998] 1 S.C.R. 27 at para. 21; Bell ExpressVu Limited Partnership v. Rex,  
2
002 SCC 42 at para. 26. It is necessary in every case for the court to undertake the  
contextual and purposive approach mandated by the modern rule, and thereafter  
determine whether there is ambiguity in the statute: Bell ExpressVu at para. 30.  
[
70] A law’s purpose may be stated in the legislation. However, legislative purpose  
may also be determined by reference to extrinsic material, such as evidence of  
legislative evolution and history, including material such as Hansard debates. Such  
extrinsic material may be properly considered as long as it is “relevant and reliable  
and is not assigned undue weight”: English v. Richmond (City), 2021 BCCA 442 at  
para. 77 [English], citing Reference re Firearms Act (Can.), 2000 SCC 31 at  
para. 17.  
[
71] Courts have considered a range of extrinsic material related to the  
conception, preparation, and passage of a provision, as an aid to interpreting its  
 
 
Williams v. Audible Inc.  
Page 25  
purpose. This includes—in addition to Hansard—law reform commission reports,  
government white papers, and even, where they may be relied on as authoritative,  
statements made by participants in the legislative process. The court is not, of  
course, bound by such extrinsic indications of legislative intent. In some cases,  
limited weight may be placed on extrinsic material where the circumstances give rise  
to doubt about its reliability. In other cases, such material may have an authoritative  
quality that renders it highly persuasive in interpreting legislative intent: Ruth  
Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, ON: LexisNexis  
Canada, 2014) at 660–661, 679–683, 690–692 [Sullivan].  
[
72] The administrative practice of a tribunal responsible for administering the  
legislation in issue may also be relevant to its interpretation. The insight of officials  
tasked with the day-to-day administration may have persuasive force, particularly  
where the legislation is technical or complex in character. Once again, administrative  
interpretation is not binding on the court, and its reliability varies with the  
circumstances. Administrative practices may lack transparency, or may reflect a view  
that is overly-narrow or coloured by the administrator’s idiosyncratic concerns. In  
determining the weight to assign to evidence of administrative practice, a court may  
consider such factors as the position and authority of the person offering the  
interpretation, their specialized knowledge and expertise, whether there are  
potentially distorting influences at play, the circumstances of the practice and its  
intended audience, and how widely the practice is relied on: Sullivan at 708–709;  
English at paras. 99–100.  
[
73] Courts may, of course, rely on judicial precedent in interpreting legislation.  
Past precedent may be of particular importance where principles of stare decisis  
dictates that the precedent has binding effect. Courts may also place reliance on  
scholarly opinion to assist in the process of statutory interpretation and to  
understand the legal context for its enactment: Sullivan at 700–703, 714–715.  
Williams v. Audible Inc.  
Page 26  
[
74] While the range of extrinsic material that may be considered by the court in  
interpreting legislation is broad, it does not extend to expert opinion evidence on the  
correct interpretation of domestic legislation. In R. v. Comeau, 2018 SCC 15, the  
Supreme Court of Canada stated:  
[
40]  
… As a preliminary observation, it is difficult if not impossible to  
contemplate a situation where evidence on domestic law (e.g. interpreting a  
Canadian statute) would ever be admissible as expert opinion evidence  
under R. v. Mohan, [1994] 2 S.C.R. 9. The application of contextual factors,  
including drafters’ intent, to the interpretation of a statutory provision is not  
something that is “outside the experience and knowledge of a judge”: Mohan,  
at p. 23. To depart from precedent on the basis of such opinion evidence is to  
cede the judge’s primary task to an expert.  
[
75] The same is not true of foreign law. Foreign laws are questions of fact which  
must be proved by expert evidence: Old North State Brewing Co. v. Newlands  
Services Inc. (1998), 58 B.C.L.R. (3d) 144 (C.A.) at 154.  
[
76] The threshold criteria for the admissibility of expert evidence is set out by the  
Supreme Court of Canada in R v. Mohan, [1994] 2 S.C.R. 9 [Mohan] at 20:  
a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of an  
(
exclusionary rule; and (d) a properly qualified expert. Once these criteria are met,  
the court retains a residual discretion to exclude expert evidence based on a cost-  
benefit analysis: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015  
SCC 23 at para. 24.  
Discussion  
[
77] The plaintiff applies to strike three affidavits: the first affidavit of John  
Pecman, sworn November 1, 2019 (Pecman Affidavit #1), the second affidavit of  
John Pecman, sworn February 7, 2020 (Pecman Affidavit #2), and the first affidavit  
of Dr. Kathrin Westermann, sworn November 1, 2019 (the “Westermann Affidavit”).  
The plaintiff says that the three affidavits fail to meet the Mohan requirements of  
necessity and reliability, and offend the ultimate issue rule. I will address each in  
turn.  
 
Williams v. Audible Inc.  
The Pecman Affidavit #1  
78] Mr. Pecman is an economist by training. He has worked for the Bureau in  
Page 27  
[
various capacities dating back to 1984. Between 2013 and 2018, Mr. Pecman was  
the Commissioner of Competition. Mr. Pecman presently operates his own  
consulting company, and is a Senior Business Advisor in the Antitrust/–Competition  
and Marketing practice group at the law firm of Fasken Martineau DuMoulin LLP.  
[
79] The Pecman Affidavit #1 sets out Mr. Pecman’s views on three issues: (1) the  
Bureau’s framework for analyzing agreements between competitors under the  
Competition Act, (2) how the Bureau would approach the analysis of the agreements  
in issue in this case, and (3) how the Bureau’s analytical framework would apply to  
the particular agreements described in the notice of civil claim. In the course of  
addressing these issues, Mr. Pecman engages in a lengthy review of the legislative  
history and evolution of s. 45 of the Competition Act, and offers his opinion as to the  
type of conduct that Parliament intended to capture. He reviews in considerable  
detail his perception of what conclusions the Bureau would have reached about the  
agreements between the defendants, had the Bureau reviewed them.  
[
80] Apple cites no authority to support the admission of such evidence in a case  
that is focussed on a question of statutory interpretation. While there is no doubt that  
the court may consider extrinsic evidence in assessing parliamentary intent,  
including, as noted, evidence of administrative practice, the Pecman Affidavit #1  
goes beyond the established boundaries. He offers his opinion on the proper  
interpretation of domestic legislation, and, at least inferentially, purports to answer  
the very question that the Court is called on to decide: whether the defendants’  
conduct, as alleged in the notice of civil claim, violates s. 45 of the Competition Act.  
[
81] In the course of the hearing, counsel for Apple suggested that I should simply  
disregard any discrete passages from the Pecman Affidavit #1 that I consider cross  
the line. The difficulty with such an approach is that the problematic aspects of the  
 
Williams v. Audible Inc.  
Page 28  
Pecman Affidavit #1 go beyond discrete or isolated passages. The fundamental  
concerns that I have with the Pecman Affidavit #1 may be summarized as follows:  
a) Mr. Pecman’s report includes a lengthy discussion of the legislative history  
and evolution of s. 45 of the Competition Act, by way of advancing  
Mr. Pecman’s primary thesis that Parliament intended s. 45 to be narrow  
in scope. It is impossible to view these passages as anything other than  
expert opinion on the interpretation of domestic legislation. Such a review  
might properly be placed before the court in the form of a legal argument  
from counsel, or even a journal article by a learned author. However, it  
should not be adduced in evidence in the form of an expert report on the  
premise that the court requires the assistance of an expert in order to  
interpret the provisions of a Canadian statute.  
b) Mr. Pecman’s views on the Bureau’s analytical approach under the  
Competitor Guidelines is irrelevant and unnecessary. It may be  
appropriate for me to consider the Competitor Guidelines in interpreting  
s. 45 of the Competition Act, as they indicate the administrative practice of  
the expert tribunal responsible for the enforcement of the statute.  
However, Mr. Pecman’s personal views as to the approach the Bureau  
might take in analyzing various types of agreements is not relevant. To the  
extent that Mr. Pecman’s opinions are designed to assist the Court in  
interpreting the scope of s. 45 of the Competition Act, the evidence is also  
unnecessary. The court does not require the assistance of an expert to  
interpret domestic legislation.  
c) Mr. Pecman’s views as to how the Bureau would characterize the actual  
agreements in issue in this case are also irrelevant and unnecessary. The  
plaintiff asks the Court to conclude that the defendants’ conduct violated  
s. 45 of the Competition Act. The question of what conclusions the Bureau  
would reach about the defendants’ conduct, even if such a question could  
Williams v. Audible Inc.  
Page 29  
be answered by Mr. Pecman, is not one that requires an answer in this  
case. To the extent that Mr. Pecman’s views are designed to influence the  
Court’s conclusions about the proper scope of s. 45 of the Competition  
Act, they are objectionable for the reasons I have already stated.  
[
82] Given these fundamental difficulties with the Pecman Affidavit #1, I do not  
accept Apple’s proposed solution of disregarding discreet passages of the affidavit.  
The Pecman Affidavit #1 is generally objectionable and, subject to limited  
exceptions, it should be struck. The limited exceptions are as follows:  
a) At paras. 23–45, Mr. Pecman reviews the legislative history and evolution  
of s. 45 of the Competition Act. As noted, this material could have been  
put before the Court in the form of legal argument from counsel or a  
journal article. To the extent I find it useful to have regard to these  
passages, I will consider Mr. Pecman’s review as in the nature of legal  
argument or academic commentary rather than expert evidence.  
b) At paras. 71–78, Mr. Pecman opines in a general way on the pro-  
competitive benefits that can results from the type of arrangements that  
Apple and Audible entered into in this case. These paragraphs of the  
Pecman Affidavit #1 are relevant to a matter in issue in this action, and the  
paragraphs do not stray into opinion on the legal question of the scope of  
s. 45 of the Competition Act. Mr. Pecman’s expertise qualifies him to opine  
on potential pro-competitive effects of the 2006 Agreement, and the issue  
is a matter on which the Court requires the assistance of experts.  
[
83] Accordingly, I conclude that paras. 71–78 of the Pecman Affidavit #1 is  
admissible evidence on the summary judgment application. I will treat paras. 23–45  
as in the nature of legal argument or academic commentary. The remainder of the  
Pecman Affidavit #1 is struck.  
Williams v. Audible Inc.  
The Pecman Affidavit #2  
84] In the Pecman Affidavit #2, Mr. Pecman opines on the framework that the  
Page 30  
[
Bureau would take in analyzing the Co-Branding Agreement between Amazon and  
Audible. Given that the plaintiff has amended his pleadings to remove the claim  
against Amazon, and abandoned any reliance on the Co-Branding Agreement as  
forming part of the alleged conspiracy, the Pecman Affidavit #2 is irrelevant. It is  
therefore struck.  
The Westermann Affidavit  
[
85] In the Westermann Affidavit, Dr. Westermann provides her expert opinion on  
three issues that the defendants asked her to address: (1) whether agreements  
containing exclusivity obligations are considered to be “hardcore” cartel conduct  
under German or European competition law, (2) whether the exclusivity provisions in  
the agreements between Apple and Audible would be considered “hardcore” cartel  
conduct under German or European competition law, and (3) the inferences that  
may be drawn from publicly accessible sources concerning the views of German and  
European regulators of the exclusivity provisions in issue in this case.  
[
86] The plaintiff says that the Westermann Affidavit is irrelevant and unnecessary.  
The Court is not being asked to resolve the question of how the Exclusivity  
Provisions would be treated under German or European competition law. The  
defendants respond that it is the plaintiff who has put German and European  
competition law in issue in this case by his reference to the press releases of the  
European regulators in his notice of civil claim. Furthermore, the defendants note  
that the November 16, 2015 press release by the Bundeskartellamt is attached as  
an exhibit to the affidavit of Eduardo Tanjuatco, a paralegal at the law firm  
representing the plaintiff. In the body of his affidavit, Mr. Tanjuatco describes the  
press release as relating to “a cartel between Audible, Amazon and Apple in the  
audiobook market”. The defendants say that the Westermann Affidavit is necessary  
to counter the plaintiff’s suggestion that German regulators considered the  
arrangement between the defendants to be a cartel.  
 
 
Williams v. Audible Inc.  
Page 31  
[
87] In my view, the Westermann Affidavit is irrelevant to any issue I must decide  
on the summary judgment application. The plaintiff does not plead that the  
Exclusivity Provisions would be considered a hardcore cartel for the purpose of  
German or European competition law. While the investigations by the  
Bundeskartellamt and the European Commission are referenced in the notice of civil  
claim, these facts are of primary relevance to the plaintiff’s position on the limitation  
period. The plaintiff pleads that the unlawful conduct by the defendants was not  
discoverable until the defendants publicly announced the end of the arrangement  
and the European regulators announced the conclusion of their investigations. It is  
not necessary for the Court to reach any conclusions about German or European  
competition law in order to determine the limitation period issue.  
[
88] It is true that Mr. Tanjuatco’s affidavit suggests that the Bundeskartellamt  
considered the arrangements between the defendants to be a “cartel”. Mr. Tanjuatco  
is clearly not qualified to opine on the whether the defendants’ arrangements would  
constitute a cartel as a matter of German competition law. His affidavit should not  
have contained such a characterization, and I will disregard it. However, this single,  
improper, reference in one of the plaintiff’s affidavits does not justify the admission of  
expert opinion on an otherwise irrelevant issue.  
[
89] The Westermann Affidavit is irrelevant to the issues on this summary  
judgment and application, and for this reason it is struck.  
Section 45 of the Competition Act  
[
90] At the heart of the defendants’ summary judgment application is the question  
of the proper interpretation of s. 45 of the Competition Act. Section 45 provides:  
45 (1) Every person commits an offence who, with a competitor of that person  
with respect to a product, conspires, agrees or arranges  
(
(
a) to fix, maintain, increase or control the price for the supply of the product;  
b) to allocate sales, territories, customers or markets for the production or  
supply of the product; or  
 
Williams v. Audible Inc.  
Page 32  
(
c) to fix, maintain, control, prevent, lessen or eliminate the production or  
supply of the product.  
[
91] The ancillary restraints defence is found in s. 45(4):  
(
4) No person shall be convicted of an offence under subsection (1) in respect of  
a conspiracy, agreement or arrangement that would otherwise contravene that  
subsection if  
(
a)  
that person establishes, on a balance of probabilities, that  
(
i)  
it is ancillary to a broader or separate agreement or arrangement  
that includes the same parties, and  
(
ii)  
it is directly related to, and reasonably necessary for giving effect  
to, the objective of that broader or separate agreement or  
arrangement; and  
(
b) the broader or separate agreement or arrangement, considered alone,  
does not contravene that subsection.  
[
92] It is common ground between the parties that s. 45 creates a per se criminal  
offence for agreements captured by the provision. In other words, it is unnecessary  
under s. 45 for the court (or the Bureau) to engage in a market structure or  
behavioural inquiry. Agreements between competitors to fix prices, allocate markets,  
and restrict output are per se unlawful without proof that the agreement had, or is  
likely to have, anti-competitive effects: Jensen v. Samsung Electronics Co. Ltd.,  
2
021 FC 1185 at paras. 95–97.  
[
93] The divergence between the parties starts with their respective approaches to  
interpreting the scope of s. 45 of the Competition Act. Apple emphasizes that the  
enactment of the current s. 45 of the Competition Act, which came into force on  
March 12, 2010, reflected a significant change in the law. Apple says that in order to  
understand Parliament’s intent in amending s. 45, it is necessary to have regard to  
the legislative evolution and history of the provision. By contrast, the plaintiff argues  
that s. 45 is clear and unambiguous on its terms, and “there is no basis to go beyond  
the plain wording of the statute”. The plaintiff says that in their reliance on legislative  
history, the defendants are attempting to rewrite s. 45.  
Williams v. Audible Inc.  
94] I do not agree with the plaintiff’s proposed approach to statutory  
Page 33  
[
interpretation, which is unduly narrow. The suggestion that the Court is somehow  
restricted to simply reading the words of s. 45 without regard to the context and  
purpose of the provision is inconsistent with the modern approach to statutory  
interpretation. In every case, the court must undertake a contextual and purposive  
approach in order to give full effect to the intent of the legislator. In the present case,  
the legislative evolution and history of the current s. 45 is necessary context for the  
interpretive process.  
Legislative evolution and history  
[
95] As noted, the current version of s. 45 of the Competition Act was enacted in  
March 2010. The amendment is the latest evolution of the criminal prohibition  
against conspiracies between competitors to prevent or lessen competition that has  
been a feature of Canadian law for over a century. In order to understand the  
significance of the March 2010 amendment, it is necessary to start with a review of  
what the current s. 45 replaced.  
[
96] The Competition Act was first enacted in 1986. The criminal conspiracy  
prohibition in s. 45, as it then read, prohibited agreements or arrangements to lessen  
or prevent competition “unduly”. Pursuant to s. 45(2.1), the court could infer the  
existence of a conspiracy, agreement or arrangement from circumstantial evidence.  
Section 45.2(2.2) rendered it unnecessary for the Crown to prove that the  
conspiracy, agreement or arrangement was intended to lessen competition unduly.  
[
97] The former s. 45 was interpreted by the Supreme Court of Canada in R. v.  
Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 [Pharmaceutical Society].  
The Court held that there are two major elements of the inquiry into whether an  
agreement “unduly” restricts competition. The first is the market structure inquiry, the  
purpose of which is to ascertain the degree of market power of the parties to the  
agreement. The second is the behavioural inquiry which assesses whether the  
 
Williams v. Audible Inc.  
Page 34  
agreement, if carried into effect, is likely to injure competition: Pharmaceutical  
Society at 651–657.  
[
98] The difficulty with the former s. 45 is that it was simultaneously under- and  
over-inclusive. Agreements between competitors which were not hard-core cartels,  
which may, in fact, bring pro-competitive benefits, risked being caught up in the  
criminal prohibition. At the same time, the two-step market structure-behaviour tests  
described in Pharmaceutical Society made it difficult to prosecute agreements that  
did constitute hard-core cartel behaviour. This “design flaw” in s. 45 was explored at  
length in A Plan to Modernize Canada’s Competition Regime: Report of the Standing  
Committee on Industry, Science and Technology (House of Commons, April 2002,  
Chair: Walt Lastewka). The Standing Committee proposed a legislative amendment  
to create a two-track approach. The first track would retain the criminal conspiracy  
provision in s. 45 for agreements that are strictly devised to restrict competition  
through price fixing, market allocation, or output restrictions. The second track would  
provide for civil review of other types of agreements between competitors.  
[
99] The federal government endorsed these recommendations of the Standing  
Committee, and indicated that it was committed to undertaking stakeholder  
consultation before introducing legislative reform. This led, in 2007, to the creation of  
the Competition Policy Review Panel (the “Panel”), with a mandate to review  
Canada’s competition and foreign investment policies and to provide  
recommendations to government on how to make Canada more competitive. In June  
2
008, the Competition Policy Review Panel (the “Panel”) produced its final report,  
entitled “Compete to Win”: Canada, Competition Police Review Panel, Compete to  
Win: Final Report – June 2008 (Ottawa: Industry Canada). The Panel’s  
recommendations (at 127) included that the Ministry of Industry introduce  
amendments to the Competition Act to:  
d)  
repeal the existing conspiracy provisions and replace them with a per  
se criminal offence to address hardcore cartels and a civil provision to deal  
with other types of agreements between competitors that have anti-  
competitive effects; …  
Williams v. Audible Inc.  
Page 35  
[
100] On January 27, 2009, Bill C-10, Budget Implementation Act 2009, was tabled  
in Parliament: Bill C-10, An Act to implement certain provisions of the budget tabled  
nd  
in Parliament on January 27, 2009 and related fiscal measures, 2 Sess, 40th Parl,  
2
009. Bill C-10 was an omnibus bill which included, in Part 12, proposed  
amendments to the Competition Act. The amendments included the repeal and  
replacement of s. 45, and the enactment of s. 90.1. On March 12, 2009, the  
amendments to the Competition Act received Royal Assent, and they came into  
force one year later.  
Scope of s. 45 of the Competition Act  
[
101] Viewed in light of this legislative history, it is evident that Parliament intended  
that s. 45 of the Competition Act would criminalize a narrow range of conduct—  
agreements between competitors to fix prices, allocate markets, or restrict output,  
that constitute naked restraints that can only have negative effects—and permit civil  
review by the Competition Tribunal of other agreements between competitors.  
[
102] Section 90.1 of the Competition Act, which was added to the Act at the same  
time that s. 45 was repealed and replaced, provides that the Tribunal may issue  
orders to address an agreement or arrangement between competitors that “prevents  
or lessens, or is likely to prevent or lessen, competition substantially in a market”. By  
contrast, the conduct prohibited by s. 45 is per se unlawful because it is conduct that  
is unambiguously harmful to competition and, therefore, deserving of prosecution  
without a detailed inquiry into its anti-competitive effects.  
[
103] There is support for such an interpretation of s. 45 of the Competition Act in  
the caselaw that has, to date, interpreted the new provision. Apple places particular  
reliance on the recent decision of Crampton C.J. of the Federal Trial Court in Mohr.  
In that case, Crampton C.J. concluded that it was plain and obvious that the  
plaintiff’s allegation that the defendant junior hockey leagues conspired to limit the  
opportunity of hockey players to negotiate and play with teams in professional  
leagues did not disclose an action based on an alleged breach of s. 45 of the  
 
Williams v. Audible Inc.  
Page 36  
Competition Act. This was because the impugned agreements were not agreements  
between competitors for the production and supply of a product, and therefore did  
not fall within any of the subsections of s. 45(1) of the Competition Act. In the course  
of his judgment, Crampton C.J. reviewed the legislative history that I have  
summarized above, and concluded:  
[
57]  
… [I]t is clear that Parliament intended to limit the application of  
section 45 to hard core cartel agreements, namely, agreements that are  
unambiguously harmful to competition. These are also known as “naked”  
cartel agreements. Other agreements between competitors, including those  
that include ancillary provisions that can adversely impact the production or  
supply of a product, were intended to be reviewed under the new non-  
criminal provision in section 90.1 of the Act, which is reproduced Appendix 1  
to these reasons.  
[
104] The analysis in Mohr was endorsed by Sharma J. in Latifi. In Latifi, Sharma J.  
granted the defendant’s application to strike a claim for damages based on an  
alleged violation of s. 45 of the Competition Act. The agreement in issue in that case  
was a “no hire” clause in the standard Tim Hortons franchise agreements which  
prevented franchisees from employing or seeking to employ any person employed  
by another franchisee. The plaintiff alleged that the clause amounted to a conspiracy  
between franchisees to manipulate the supply and price of labour. Justice Sharma  
concluded that it was plain and obvious that the impugned clause was not an  
agreement between competitors relating to the supply of a product. In her analysis of  
the scope of s. 45 of the Competition Act, Sharma J. described Crampton C.J.’s  
decision in in Mohr as “highly persuasive” on the issue of statutory interpretation.  
[
105] It must be noted that in both Mohr and Latifi, the Courts concluded that the  
impugned agreements were not agreements between competitors in relation to the  
production or supply of a product, and for this reason did not fall within the scope of  
s. 45 of the Competition Act. The present case is factually different. However, Mohr  
and Latifi are nevertheless instructive on the legislative intent behind s. 45 of the  
Competition Act.  
Williams v. Audible Inc.  
Page 37  
[
106] Further support for the interpretation of s. 45 advanced by the defendants can  
be found in the Competitor Guidelines. The Bureau first published the Guidelines in  
009 as a means of providing “transparency and predictability regarding its  
2
assessment of competitor collaborations”, in light of the amendments enacted by Bill  
C-10. The Competitor Guidelines were updated in 2021. There are no substantive  
differences between the two versions of the Guidelines that would affect the  
outcome of the summary judgment application. The parties focussed their  
arguments on the current version of the Guidelines. In relation to the scope of s. 45  
of the Competition Act, the current Competitor Guidelines state at 14:  
Section 45 describes categories of agreements that are so likely to harm  
competition and to have no pro-competitive benefits that they are deserving  
of prosecution without a detailed inquiry into their actual competitive effects.  
These are agreements between competitors to fix prices, allocate markets or  
restrict output that constitute a “naked restraint” on competition. The  
categories of agreements described in s. 45(1) are per se unlawful and are  
subject to significant criminal sanctions. Other forms of competitor  
collaborations, such as joint ventures and strategic alliances, may be subject  
to review under Part VIII of the Act, which prohibits conduct only where it is  
likely to substantially lessen or prevent competition.  
[
107] The Competitor Guidelines are not, of course, binding on the court. However,  
in the circumstances of the present case, I consider that they have persuasive force.  
The Competitor Guidelines are drafted by a body with specialized expertise in a  
complex area of the law. They are widely published, and intended, on their face, to  
“assist firms in assessing the likelihood that a competitor collaboration will raise  
concerns under the criminal or reviewable matters (civil) provisions of the Act”:  
Competitor Guidelines at 7.  
Should the plaintiff’s claim for damages under s. 36 of the Competition  
Act be summarily dismissed?  
[
108] This leads, then, to consideration of the central issue on the summary  
judgment application: whether Apple has established that the plaintiff’s claim under  
the Competition Act is bound to fail.  
 
Williams v. Audible Inc.  
Page 38  
[
109] The plaintiff emphasizes that although Audible was a supplier of audiobooks  
to Apple during the class period, the two companies were also competitors in the  
market for digital downloadable audiobooks. This is because Audible continued to  
sell downloadable audiobooks directly through its website, and thus Audible and  
Apple were both sellers of the same product in the same market. He says that the  
Restrictions on Audible in Clause 48(a) of the 2006 Agreement constitute an  
agreement between competitors to do one or more of the things prohibited by  
s. 45(1) of the Competition Act:  
a. fixing, maintaining, increasing or controlling the price for the supply of  
audiobooks;  
b. allocating sales, territories, customers or markets for the supply of  
audiobooks;  
c. fixing, maintaining, controlling, preventing, lessening, or eliminating the  
supply of audiobooks.  
[
110] The plaintiff’s argument on the summary judgment application more  
specifically focussed on s. 45(1)(b) and (c) of the Competition Act. He alleges that  
the Restrictions on Audible in the Exclusivity Provisions “divide the worldwide market  
for audiobooks” between Audible and Apple, making the iTunes Store and the  
Audible website the only platforms for the retail purchase of audiobooks from  
Audible’s primary catalog. The supply of audiobooks was, during the class period,  
thereby controlled by Apple and Audible. To the extent that the defendants wish to  
argue that their overall arrangement had pro-competitive effects, the plaintiff says  
such an argument can, and should, be advanced at trial as an ancillary restraints  
defence under s. 45(4) of the Competition Act.  
[
111] I do not understand Apple to take issue with the proposition that the  
Restrictions on Audible might, arguably, fit within the literal (and decontextualized)  
wording of s. 45(1) if clause 4.8(a) was read in isolation. However, Apple says that  
Williams v. Audible Inc.  
Page 39  
the Restrictions on Audible cannot be viewed in isolation, but rather must be viewed  
within the context of the entire agreement between Apple and Audible. Apple  
emphasizes that the 2006 Agreement is not a horizontal agreement between  
competitors, but rather a vertical agreement between an upstream supplier of  
audiobooks (Audible), and a downstream purchaser and reseller (Apple). Apple says  
that it is well recognized that exclusivity provisions in a vertical distribution  
agreement such as this may have pro-competitive justifications. The fact that  
Audible and Apple may have also competed in the sale of audiobooks to  
downstream customers, through Audible’s direct sales from its website, does not  
change the nature of their arrangement as, fundamentally, a vertical distribution  
agreement between a supplier and a seller that contained limited exclusivity  
provisions.  
[
112] The fundamental disagreement between the parties, it seems to me, is how to  
characterize the “agreement” that is subject to analysis under s. 45(1). Apple  
emphasizes that the evidence—including Dr. Ware’s testimony in prior proceedings  
before the Competition Tribunal—uniformly supports the proposition that exclusivity  
provisions in vertical agreements may have pro-competitive benefits. These benefits  
include the encouragement and protection of relationship-specific investments,  
which may lead to better product choice and quality for consumers, and the  
reduction of harmful free-riding by rivals who may benefit from investment by  
another firm.  
[
113] The difficulty from the perspective of the summary judgment process is that  
the evidence is not uniform on whether the Exclusivity Provisions are properly  
characterized as a vertical agreement, which would unambiguously have a pro-  
competitive justification. The experts disagree on this point. By way of illustration, in  
the Winter Affidavit, Dr. Winter offers the following criticism of Dr. Ware’s analysis:  
62.  
The characterization of the Agreement as completely horizontal is  
wrong. Audible is an upstream, intermediary licensor and supplier of  
audiobooks to customers and iTunes is a downstream purchaser and reseller  
of audiobooks, purchasing from Audible. The Agreement must be analyzed  
Williams v. Audible Inc.  
Page 40  
as a vertical agreement between a supplier of audiobooks and a downstream  
reseller of audiobooks, in which the upstream firm provided the downstream  
distributor with (limited) exclusive rights to its products. We cannot analyze  
the Agreement as a simple horizontal agreement by competitors simply  
because both firms had a presence in the downstream market. The parties  
remained independent in setting their own prices under the Agreement.  
[
114] In his rebuttal to Dr. Winter—in Ware Affidavit #2—Dr. Ware responds:  
20.  
…The Exclusive Agreement was horizontal because Apple  
represented an important potential competitor in the supply of digital  
downloadable audiobooks, competition that was eliminated by the Exclusive  
Agreement.  
21.  
The Exclusive Agreement had two notable anticompetitive effects.  
First, it created a barrier to entry to new platforms and an incentive for  
publishers to supply Audible and Apple exclusively, thus starving any nascent  
platforms of content. And second it operated as a horizontal agreement  
between Apple and Audible, who would otherwise have provided the most  
effective horizontal competition during the relevant period. To label the  
Exclusive Agreement as “vertical” as Dr. Winter does on several occasions, is  
inaccurate. Apple and Audible, through their respective platforms, iTunes and  
Audible.com were horizontal competitors who competed with each other  
distributing digital media even before the Exclusive Agreement was signed.  
[
115] The difficulty in this case arises because Audible was both a supplier to Apple  
and a direct competitor in the sale of audiobooks to downstream customers. The  
plaintiff and Apple both reference the treatment of such “dual distribution”  
arrangements in the Competitor Guidelines in support of their respective positions.  
The Competitor Guidelines highlight the importance of proper characterization of the  
agreement in issue. The Competitor Guidelines state at 18–19:  
It may be difficult to distinguish between a horizontal and vertical restraint in a  
dual-distribution context where the supplier competes for sales with its  
unaffiliated distributors. Given that such agreements can be pro-competitive,  
they are not deserving of condemnation without an inquiry into their actual  
competitive effects. Indeed, the distributor’s status as a competitor to the  
supplier may only arise as a result of the dual-distribution arrangement.  
Accordingly, the Bureau will assess agreements between suppliers and  
distributors in a dual-distribution arrangement under the reviewable matters  
provisions found in Part VIII of the Act, and not under the criminal conspiracy  
provision in section 45 of the Act. However, the mere existence of a dual-  
distribution arrangement between two parties does not foreclose the  
possibility that agreements between these parties to fix prices, allocate  
markets or restrict output may be subject to section 45. Further, the Bureau  
may apply section 45 where the agreement is, in fact, an agreement between  
Williams v. Audible Inc.  
Page 41  
suppliers or an agreement between distributors in their capacity as  
competitors, such as by allocating markets or fixing prices.  
[
116] The Competitor Guidelines, accordingly, simply circle back to the conflict in  
the expert evidence on this application as to whether the Exclusivity Provisions are,  
in fact, an agreement between distributors in their capacity as competitors to allocate  
markets, fix prices, or restrict output.  
[
117] In light of the contest in the evidence, I am not satisfied beyond a doubt that  
the plaintiff’s claim under the Competition Act is bound to fail. This, in itself, is a  
sufficient basis to dismiss Apple’s application for summary judgment. Furthermore,  
in my view, the summary judgment process is not suitable to resolve a complex and  
relatively novel issue of competition law regarding the application of s. 45 of the  
Competition Act to a dual distribution arrangement. The question of how s. 45(1)  
applies in the circumstances of this case, and the role of the ancillary restraints  
defence in s. 45(4), is best decided on the basis of a full evidentiary record.  
[
118] Before concluding on this issue, I must address two matters that were a  
theme of Apple’s submissions on the Competition Act. First, there is Apple’s heavy  
reliance on Mohr and Latifi, and the orders made in those cases striking claims that  
were founded on an alleged breach of s. 45. While Mohr and Latifi are helpful in a  
general sense in their review of the legislative history and evolution of s. 45 of the  
Competition Act, both cases are factually distinguishable from this case. In both  
cases, the Courts held that s. 45(1), on its plain wording, extends only to  
agreements between competitors in the production or supply of a product, and not to  
agreements between buyers for the purchase of a product. In contrast, in the  
present case, the agreement in issue—the Restrictions on Audible—is an agreement  
between competitors in relation to the supply of a product.  
[
119] Second, there is Apple’s heavy reliance on footnote 95 of the Ware Affidavit  
2 where Dr. Ware states “[i]t is perfectly possible that the Exclusive Agreement had  
#
some small efficiency based justification—”. Apple says that in light of this  
concession by Dr. Ware, the evidence is uncontroverted that the Exclusivity  
Williams v. Audible Inc.  
Page 42  
Provisions were not unambiguously anti-competitive, and therefore the agreement  
between Apple and Audible is not caught by s. 45. In my view, Apple overstates the  
significance of footnote 95. As plaintiff’s counsel points out, the footnote is contained  
in a passage where Dr. Ware responds to a question that was put to him about the  
ancillary restraints defence. It is difficult to reach firm conclusions about what  
Dr. Ware intended to convey in that footnote without cross-examination, which has  
not occurred to date. It is not permissible for me to weigh the relative importance of  
potentially contradictory statements in Dr. Ware’s evidence on a summary judgment  
application.  
Summary of conclusion on the summary judgment application on the  
merits  
[
120] As I am not satisfied beyond doubt that the plaintiff’s claim under s. 36 of the  
Competition Act is bound to fail, Apple’s application for summary judgment on that  
claim must fail. As noted, the defendants concede that the remaining claims of the  
plaintiff are “derivative”, in the sense that all of his claims against the defendants turn  
on the question of the outcome of the summary judgment application in relation to  
the Competition Act claim. Accordingly, Apple’s application, and Audible’s more  
limited application, to dismiss the plaintiff’s claims on their merits is dismissed.  
The defendants’ application for summary judgment on the limitation  
defence  
[
121] The defendants argue, in the alternative, that summary judgment should be  
granted dismissing the claims of the plaintiff and all putative class members that  
relate to the purchase of audiobooks prior to September 27, 2016, which is two  
years before the notice of civil claim was filed. The plaintiff pleads the doctrines of  
postponement and discoverability to extend the limitation period. He also pleads that  
the defendants’ wilfully concealed the fact of the Overcharge.  
[
122] There is a confusing set of limitation statutes and discoverability rules that  
potentially govern the claims of class members over the class period, depending on  
the cause of action—whether arising at common law, in equity, or under the  
 
 
Williams v. Audible Inc.  
Page 43  
Consumer Act or Competition Act—and the time of the purchase of an audiobook. It  
is not necessary for me to review the relevant limitation principles in any detail  
because the defendants’ summary judgment application heavily relies on a single  
proposition: that the undisputed facts establish that the claims were discoverable at  
the time that Audible and Apple entered the 2003 and 2006 Agreements. This is  
because, the defendants say, they “publicly and notoriously” announced the  
formation of the exclusive arrangement between Apple and Audible on multiple  
occasions between 2003 and 2008. The defendants say that with reasonable  
diligence, the plaintiff, and any putative class member, could have discovered the  
cause of action as a result of this publicity, and that the publicity is a complete  
answer to any claim of wilful concealment.  
[
123] The evidence on the summary judgment application does not satisfy me that  
the claims of class members arising prior to September 27, 2016 are bound to fail on  
the basis of a limitation defence. The press releases relied upon by the defendants  
do no more than summarize the arrangements between Apple and Audible. The  
agreements themselves do not appear to have been publicly available. Furthermore,  
the evidence about the “notorious” publicity comes exclusively from the defendants,  
and has not been tested.  
[
124] During the hearing of the summary judgment application, the plaintiff  
highlighted the difficulty with the evidentiary record by way of a specific example.  
Audible’s affiant, Beth Anderson, deposes that “Audible also included a partially  
redacted copy of the Global Master Agreement as an Exhibit to the 2006 Third  
Quarter Report”—a report that was filed with the United States Securities and  
Exchange Commission. As the plaintiff points out, the description of the 2006  
Agreement in the body of the Third Quarter Report, which is an exhibit to  
Ms. Anderson’s affidavit, is lacking in detail about the exclusivity arrangements  
between Apple and Audible. The report states:  
Under the new agreement, [Audible] has agreed to certain exclusivity  
obligations that restrict [Audible] to varying degrees from integrating Audible  
content into other internet-based services.  
Williams v. Audible Inc.  
Page 44  
[
125] There is a list of exhibits on the final page of the Third Quarter Report which  
suggests that Audible filed the 2006 Agreement with the United States Securities  
and Exchange Commission. However, a copy of what was publicly filed with  
Commission, which was subsequently obtained by the plaintiff, reveals a redacted  
version of the 2006 Agreement that does not include the Exclusivity Provisions.  
[
126] I will not review the defendants’ evidence of the allegedly notorious publicity  
in any greater detail. This example is sufficient to demonstrate the factual nature of  
the issues of discoverability and wilful concealment. This is not an exceptional case  
in which it is appropriate to resolve limitation issues at the early stage of a  
certification hearing: Godfrey v. Sony Corporation, 2017 BCCA 302 at para. 67.  
Conclusion on the defendants’ summary judgment application  
[
127] I am not satisfied either that the plaintiff’s claims are bound to fail on their  
merits, or that it is clear beyond doubt that the claims of the plaintiff and putative  
class members that arose prior to September 27, 2016 are statute barred. The  
defendants’ summary judgment application is therefore dismissed.  
THE PLAINTIFF’S CERTIFICATION APPLICATION  
Certification requirements  
[
128] The CPA sets out the procedure by which a member of a class may  
commence and maintain an action on behalf of all members of a class. Pursuant to  
s. 2 of the CPA, the person wishing to represent a class of persons must bring an  
application for an order certifying the action as a class proceeding and appointing  
the applicant as the representative plaintiff.  
[
129] In order to have an action certified as a class proceeding in British Columbia,  
the proposed representative plaintiff must meet the criteria set out in s. 4(1) of  
the CPA. Section 4(1) requires the court to certify a proceeding as a class  
proceeding if all of the following requirements are met:  
 
 
Williams v. Audible Inc.  
Page 45  
(
(
(
a)  
b)  
c)  
the pleadings disclose a cause of action;  
there is an identifiable class of 2 or more persons;  
the claims of the class members raise common issues, whether or not  
those common issues predominate over issues affecting only individual  
members;  
(
(
d)  
e)  
a class proceeding would be the preferable procedure for the fair and  
efficient resolution of the common issues;  
there is a representative plaintiff who  
(
i) would fairly and adequately represent the interests of the class,  
(
ii) has produced a plan for the proceeding that sets out a workable  
method of advancing the proceeding on behalf of the class and of  
notifying class members of the proceeding, and  
(
iii) does not have, on the common issues, an interest that is in conflict with  
the interests of other class members.  
[
130] The requirement in s. 4(1)(a) that the pleadings disclose a cause of action is  
assessed on the same test applicable on a motion to strike pleadings under  
R. 9-5(1) of the SCCR. The question is whether, assuming the facts pleaded are  
true, it is plain and obvious that the plaintiff’s claim has no reasonable prospect of  
success: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at  
para. 63 [Pro-Sys Consultants].  
[
131] In relation to the remaining criteria in s. 4(b)-(e), the plaintiff must show “some  
basis in fact” that the requirements for certification are met. This does not involve an  
assessment of the merits. The question is not whether there is some basis in fact for  
the claim itself, but rather whether there is some basis in fact to establish each of the  
individual requirements for certification. The certification stage is not concerned with  
the merits of the action, but rather with its form and whether the action can properly  
proceed as a class action: Hollick v. Toronto (City), 2001 SCC 68 at paras. 16 and  
2
5; Pro-Sys Consultants at paras. 99-105.  
Discussion  
[
132] The requirements for certification in s. 4(1)(a), (b), and (e) of the CPA are  
effectively addressed by my reasons on the defendants’ summary judgment  
application. The defendants’ argument that the amended notice of civil claim does  
 
Williams v. Audible Inc.  
Page 46  
not disclose a cause of action is heavily dependent on the proposition that the  
plaintiff has not pleaded a viable claim for damages under the Competition Act. I  
have concluded that the plaintiff not only has a viable claim, but also that it is not  
beyond doubt that it is bound to fail. As I have rejected the defendants’ argument  
based on the limitation period, any criticism of the proposed class under s. 4(b) also  
falls away, as does the defendants’ objection that the plaintiff is not a proper  
representative plaintiff under s. 4(e) because his claim is statute barred.  
[
133] The arguments on the certification application focussed on the common issue  
and preferability criteria in ss. 4(1)(c) and (d) of the CPA. For the reasons that follow,  
I find that those criteria are not met.  
The common issues and preferability requirements  
[
134] To satisfy the requirement in s. 4(1)(c) of the CPA, the plaintiff must show  
some basis in fact that “the claims of the class members raise common issues,  
whether or not those common issues predominate over issues affecting only  
individual members”. Section 1 of the CPA defines common issues as “(a) common  
but not necessarily identical issues of fact, or (b) common but not necessarily  
identical issues of law that arise from common but not necessarily identical facts”.  
[
135] The question underlying the commonality analysis is whether allowing the  
action to proceed as a class action will avoid the duplication of fact-finding or legal  
analysis: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at  
para. 39 [Western Canadian Shopping Centres]. The commonality analysis is  
animated by the following principles:  
(
(
1) The commonality question should be approached purposively.  
2) An issue will be “common” only where its resolution is necessary to the  
resolution of each member’s claim.  
3) It is not essential that the class members be identically situated vis-à-vis  
the opposing party.  
4) It is not necessary that common issues predominate over non-common  
issues. However, the class members’ claims must share a substantial  
(
(
 
Williams v. Audible Inc.  
Page 47  
common ingredient to justify a class proceeding. The court will examine the  
significance of the common issues in relation to individual issues.  
(
5) Success for one class member must mean success for all. All members of  
the class must benefit from the successful prosecution of the action, although  
not necessarily to the same extent.  
Pro-Sys Consultants at para. 108, citing Western Canadian Shopping Centres at  
paras. 39-40.  
[
136] Where loss is an element of class members’ causes of action, a  
representative plaintiff must provide “some assurance…that the questions are  
capable of resolution on a common basis”: Pro-Sys Consultants at para. 114. At a  
certification hearing, the plaintiff need not establish actual loss to the class, but must  
demonstrate there is a credible or plausible methodology capable of establishing  
loss on a class-wide basis: Pro-Sys Consultants at paras. 114–118; Charlton v.  
Abbott Laboratories, Ltd., 2015 BCCA 26 at para. 86.  
[
137] Section 4(1)(d) of the CPA requires the plaintiff to establish that a class  
proceeding is the preferable procedure for the fair and efficient resolution of the  
common issues. Pursuant to s. 4(2) of the CPA, in determining whether a class  
proceeding would be the preferable procedure for the fair and efficient resolution of  
the common issues, the court must consider all relevant matters, including:  
(
(
(
(
(
a)  
b)  
c)  
d)  
e)  
whether questions of fact or law common to the members of the class  
predominate over any questions affecting only individual members;  
whether a significant number of the members of the class have a valid  
interest in individually controlling the prosecution of separate actions;  
whether the class proceeding would involve claims that are or have been  
the subject of any other proceedings;  
whether other means of resolving the claims are less practical or less  
efficient;  
whether the administration of the class proceeding would create greater  
difficulties than those likely to be experienced if relief were sought by  
other means.  
[
138] “Preferable” refers to two ideas: first, that the class proceeding would be a  
fair, efficient, and manageable means to advance the claim, and second, that a class  
Williams v. Audible Inc.  
Page 48  
proceeding would be preferable to any other reasonably available means of  
resolving the class members’ claims: AIC Limited v. Fischer, 2013 SCC 69 at  
para. 48.  
The plaintiff’s proposed common issues and revisions to the common  
issues  
[
139] At the start of the hearing of the certification application, the plaintiff proposed  
that the following common issues be certified:  
Competition Act  
(
1)  
During the Class Period, were the defendants’ agreements with  
respect to Audiobooks contrary to s. 45 of the Competition Act?  
(
2)  
If the answer to common issue #1 is yes, are class members entitled  
to damages pursuant to s. 36 of the Competition Act?  
Conspiracy  
(
(
(
3)  
4)  
5)  
Did the defendants conspire to harm the class thereby causing loss to  
the class?  
If the answer to common issue #3 is yes, did the conspiracy involve  
unlawful acts?  
If the answer to common issue #3 is yes, was the predominant  
purpose of the conspiracy to harm the class?  
Unjust Enrichment  
(
6)  
Were the defendants unjustly enriched by their conduct and, if so,  
should the court order restitution or disgorgement?  
Breach of [the Consumer Act]  
(
7)  
Did the defendants breach s. 8 of the [Consumer Act], irrespective of  
whether the specific factors in subsection (3) are present in any  
individual case? If so, should the court make a restoration order under  
s. 172 for residents of British Columbia?  
Damages and distribution  
(
8)  
If the defendants are found liable to the class, should the court make  
an aggregate award and in what amount?  
(
9)  
What is the appropriate distribution of damages or disgorgement to  
the class, and should the defendants pay the costs of distribution?  
Interest  
10) Are the defendants liable to pay interest on the award?  
(
 
Williams v. Audible Inc.  
Page 49  
Joint and Several Liability  
11) Are the defendants jointly and severally liable for the award?  
Limitation Period  
(
(
(
12) Can the limitation period be determined on a class-wide basis?  
13) If the answer to the preceding question is yes, when did the limitation  
period begin to run?  
[
140] However, in the course of the certification hearing, it became apparent that  
there were evidentiary deficiencies in the plaintiff’s material, at least as it relates to  
proposed common issues 8 and 9. This is because the evidence that the plaintiff  
relied on to support the existence of a plausible methodology to assess aggregate  
loss to class members—the Ware Affidavits #1 and #2—was not responsive to the  
plaintiff’s evolved claim or to the defendants’ pleaded limitation defence.  
[
141] As noted, Dr. Ware’s opinions on methodology were premised on two  
assumptions that the plaintiff has since abandoned reliance on: (1) the Co-Branding  
Agreement between Amazon and Audible was part of the criminal conspiracy, and  
(2) the unlawful agreement to fix prices, allocate markets, and restrict output was  
comprised of both the Restrictions on Audible and the Restrictions on Apple in the  
Exclusivity Provisions. Dr. Ware’s evidence does not establish the existence of a  
credible and plausible methodology to assess aggregate damages resulting solely  
from the Restrictions on Audible, which was the eventual focus of the plaintiff’s case.  
His evidence also does not establish a credible and plausible methodology to assess  
aggregate damages for only a portion of the class period, which might be necessary  
depending on the outcome of the limitation defence.  
[
142] The plaintiff’s proposed solution to the difficulty arising from the limitation  
defence—a solution that was advanced in the course of the certification hearing—is  
to revise common issue 8 so that it reads as follows:  
(
8)(a) Should aggregate damages be awarded to the class for the entire  
class period or for some portion(s) of the class period?  
(
b) If yes, for what period(s) and in what amount?  
Williams v. Audible Inc.  
Page 50  
[
143] The plaintiff’s proposed solution to the remainder of the evidentiary  
deficiencies in his case is for the court to order the certification of common issues  
1)–(7) and (11)–(13), and to direct that the plaintiff’s application to certify common  
(
issues (8)–(10) be adjourned pending receipt of a new affidavit from Dr. Ware that  
more specifically focusses on the competitive effects of the Restrictions on Audible.  
The plaintiff says that such an order is authorized by s. 5(6) of the CPA which  
provides that the court may adjourn a certification application to permit the parties to  
“amend their materials or pleadings or to permit further evidence”. The plaintiff relies  
on two cases in which an adjournment of a certification hearing was granted to  
permit further evidence in circumstances that he says are analogous to the present  
case: Bodnar v. The Cash Store Inc., 2007 BCSC 435 [Bodnar]; Krishnan v.  
Jamieson Laboratories Inc., 2021 BCSC 1396 at paras. 119–134 [Krishnan].  
[
144] The defendants oppose any adjournment of the certification application to  
allow for further evidence. The defendants emphasize that it has been four years  
since the plaintiff filed his notice of civil claim, and over two years since his  
certification application was originally set for hearing. This is not a case, the  
defendants say, where the plaintiff requires evidence to address some technical  
deficiency. Rather, the plaintiff wishes to start afresh with a new theory of his case  
and entirely new methodology at this late stage of the proceeding. The defendants  
say that that there is no precedent for what the plaintiff is proposing, which is to  
certify a class proceeding before any determination of whether the key issue of  
aggregate damages is even capable of determination on a class-wide basis.  
Discussion  
[
145] For the following reasons, I decline to adopt the plaintiff’s proposed solution to  
the evidentiary problems with his case on certification.  
[
146] First, I do not agree that the problem with the lack of evidence of a plausible  
and credible methodology to determine loss to class members, or gain to the  
defendants, is one that only implicates common issues (8) and (9). Proposed  
 
Williams v. Audible Inc.  
Page 51  
common issues (2) to (7) also require a determination either that class members  
have suffered loss as a result of the alleged unlawful conspiracy or that the  
defendants experienced economic gain. Dr. Ware’s proposed methodologies to  
determine common economic harm to the class and economic gain to the  
defendants are premised on a conspiracy that includes Amazon as a party and  
extends to the entirety of the Exclusivity Provisions, not simply the Restrictions on  
Audible. In light of the disconnect between the plaintiff’s current theory and the  
methodologies proposed in Ware Affidavits #1 and #2, the plaintiff has not met his  
burden of providing some evidence to show that these issues can be resolved on a  
common basis.  
[
147] Second, even if it was possible to extract isolated common issues from the  
plaintiff’s list that do not require an assessment of loss or damage on a class-wide  
basis, it is impossible to apply the certification requirements in s. 4 of the CPA—and  
in particular the preferability requirement—without knowing whether there are any  
remedial issues capable of certification. If loss or damage cannot be assessed on a  
class-wide basis, this may weigh heavily against the certification of liability issues in  
the circumstances of this case. It is at least a consideration that the Court would  
have to account for in the preferability analysis: CPA, s. 4(2)(a).  
[
148] Third, this is not a case in which the evidentiary deficiencies are of a technical  
nature. The plaintiff has, as the defendants argue, entirely revised his theory of the  
case shortly before the hearing of the certification application, and further revised it  
in the course of the certification hearing itself. The plaintiff has not, before now,  
obtained expert evidence to support the existence of a plausible methodology to  
assess harm on a class-wide basis on the basis of the revised theory. Dr. Ware was  
not asked to address the implications of the removal of Amazon from the alleged  
conspiracy for his proposed methodology, or the abandonment of reliance on the  
Restrictions on Apple. If the plaintiff was permitted to instruct Dr. Ware at this stage  
to address the new theory, the defendants would also have to start afresh in  
Williams v. Audible Inc.  
Page 52  
retaining and instructing experts to respond to the new theory. Such a process would  
be unfair and prejudicial to the defendants.  
[
149] I can see no principled reason why the plaintiff should be permitted to  
bifurcate the certification hearing in the manner he proposes at this stage of the  
proceeding. The cases that the plaintiff relies on in support of such a process are  
distinguishable. In Bodnar, the action had already been certified against other  
defendants, and the plaintiffs assumed they could rely on the certification order to  
establish that the criteria in s. 4 of the CPA were met against the newly proposed  
defendants. Justice Brown concluded that the plaintiffs were wrong in assuming no  
evidence was required, and she adjourned the application to permit them to put in  
the necessary evidence. As described by Levine J.A. on the defendants’  
unsuccessful application for leave to appeal the order in Bodnar, the evidentiary  
deficiency was subsequently remedied by the plaintiffs filing an application  
containing a copy of the original certification record. The “further evidence” in issue  
in Bodnar was thus known to the defendants and did not take them by surprise:  
Bodnar v. The Cash Store Inc., 2007 BCCA 366 at paras. 12–13.  
[
150] In Krishnan, the plaintiff tendered expert evidence in relation to the claim  
against one of the defendants that reported on testing results that had not, in fact,  
been performed by the plaintiff’s expert. Justice Branch considered it appropriate to  
exercise his discretion under s. 5(6) of the CPA to adjourn the matter to allow the  
plaintiff to adduce further evidence from the expert who had done the testing. Justice  
Branch observed that the necessary evidence appeared to exist, but it was not  
presented in a form suitable to the receipt of expert evidence. He characterized the  
defendant’s evidentiary objection as “quite technical”.  
[
151] For the reasons I have already explained, the evidentiary deficiency in the  
present case is not technical. I am not prepared at this stage of the proceeding to  
adjourn the certification application to allow the plaintiff a further opportunity to  
tender new affidavits from his expert.  
Williams v. Audible Inc.  
Page 53  
[
152] On the current record, the only common issue that could conceivably be  
certified at this point is common issue (1), which asks whether the defendants’  
agreements were contrary to s. 45 of the Competition Act. The certification of that  
issue alone will not advance the claims of class members in the absence of any  
assurance that it will ever be possible to assess damages on a class-wide basis. A  
class proceeding is not the preferable procedure for the fair and efficient resolution  
of a common liability issue in this case in the absence of any evidence that there is a  
methodology for assessing damages across the class.  
[
153] As the requirements of ss. 4(1)(c) and (d) of the CPA are not established, the  
plaintiff’s application for certification is dismissed.  
SUMMARY OF ORDERS  
[
154] In summary, I make the following orders:  
a) Audible’s application is granted, and a stay of proceedings is ordered in  
relation to the Non-Consumer Act Claims brought on behalf of Alberta  
residents and class members for the period of July 21, 2010 to September  
5
, 2012;  
b) The defendants’ application for summary judgment is dismissed;  
c) The plaintiff’s application for certification is dismissed.  
“Horsman J.”  
Williams v. Audible Inc.  
Page 54  
Appendix A  
Williams v. Audible Inc.  
Page 55  


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