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Vol. 141, No. 26 — June 30, 2007
Rules Amending Certain Rules Governing Practice and Procedure Applicable to the Federal Courts (Representative Proceedings, Class Proceedings and Other Amendments)
Statutory authority
Federal Courts Act and Immigration and Refugee Protection Act
Sponsoring agencies
Federal Court of Appeal and Federal Court
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Rules.)
Background
The purpose of the amendments to the Federal Court Rules is to effect the following changes:
(i) Class proceedings
(1) The purpose of the current amendments is to reinstate former rule 114 (which provided for Representative Proceedings in the Federal Court of Canada and which was found in Part III of the Federal Court Rules, 1998 (FCR 1998) — Rules Applicable to All Proceedings). Former rule 114 was repealed by SOR/2002-417, s. 17, which brought into force an expanded Class Actions Proceedings (enactment of rules 299.1 – 299.42 effective November 21, 2002) in the Federal Court of Canada. Former rule 114 applied to actions only.
(2) Soon after the repeal of former rule 114, it became apparent that the procedural lacunae identified with former rule 114 were "deficiencies" in the context of group litigation where the interest of the class is a common issue but they were not necessarily deficiencies in the context of group litigation where the class is defined by the commonality of the Parties. Such is the case in the majority of aboriginal litigation where common or sui generis rights are litigated.
(3) To provide for a comprehensive Class Proceedings Rules (new Part 5.1) which will include Actions and Applications other than applications for judicial review under section 28 of the Federal Courts Act and which will entail the option between two mechanisms, one under the Class Proceedings Rules and another under reinstated proposed rule 114.
(4) To enunciate that a representative proceeding may be brought by or against two or more persons that have a collective interest upon certain other conditions stipulated in the Rules.
(ii) "Serve and file"
The English version of rule 306 states that an applicant shall "serve and file its supporting affidavits and documentary exhibits" whereas the French version states that the applicant "dépose et signifie les affidavits et les pièces documentaires qu'il entend utiliser à l'appui de la demande". The same terminology exists with respect to rules 307 and 341(1).
It is proposed that the French version of rules 306, 307 and 341(1) be amended in order to ensure consistency with the English version of these rules, with rule 73 and to reflect what is done in practice.
(iii) Form 261 — Notice of pre-trial conference
A number of amendments to the Rules were recently made with respect to expert witnesses. The amendments came into effect on September 21, 2006. Form 261 should have been amended consequently. The proposed amendments would correct this oversight.
(iv) Subsection 93(2) — Oral Examination for discovery
The English version of subsection 93(2) indicates "to conduct an oral examination for discovery" whereas the French version states "procéder à l'interrogatoire oral".
In order to ensure that both the English and French versions have the same scope, it is proposed that the English version of subsection 93(2) be amended by deleting the words "for discovery".
Subject to the approval of the Governor in Council, the Federal Court of Appeal and Federal Court Rules Committee can make, amend or cancel any rule.
The proposed Rules are submitted for pre-publication in the Canada Gazette, Part I.
Rationale for the proposed amendments
(i) Class proceeding
Rectify the negative impact of the repeal of rule 114
The Rules Committee feels the new rules are needed in order to
(a) Provide two options between parallel representative and class proceedings Rules; other jurisdictions which created Class Proceedings Rules did not repeal representative proceedings;
(b) Maintain sufficient judiciary discretion with both, the representative actions and with the class proceedings to, in fact, grant leave then deal with certification when necessary; and
(c) While the impetus for reinstatement of the Representative Proceedings Rules came from the Canadian Bar Association (CBA) [Aboriginal Section], First Nations and Aboriginal associations, the new Representative Proceedings Rule is not restricted to aboriginal claims or aboriginal law. It is also available to other representative groups (immigration, for example) and is, in effect, made to be applicable to all proceedings that could be the subject of a representative proceeding.
(ii) "Serve and file"
It is proposed that the French version of rules 306, 307 and 341(1) be amended in order to ensure consistency with the English version of these rules, with rule 73 and to reflect what is done in practice.
(iii) Form 261 — Notice of pre-trial conference
The amendments aim to reflect the amendments made to the Rules of the Federal Courts with respect to expert witnesses which came into effect on September 21, 2006.
(iv) Subsection 93(2)
In order to ensure that both the English and French versions have the same scope, it is proposed that the English version of subsection 93(2) be amended by deleting the words "for discovery".
Technical description
(i) Class proceedings
To meet the above-mentioned objectives of the Rules Amending the Federal Court Rules (the "Rules"), the Rules Committee proposed amending the following rules:
Rule 2 of the English version of the Rules replaces the definition of "applicant" to better reflect the situation created by the amendment.
Rule 2 of the French version of the Rules replaces the definition of "demandeur" to better reflect the situation created by the amendment.
Rule 2 of the English version of the Rules replaces the definition of "Plaintiff" to better reflect the situation created by the amendment.
Paragraph 50.(1)(l) of both versions of the Rules is amended to better reflect the situation created by the amendment.
Subsection 50(3) of the English version of the Rules is amended so as to clarify that a prothonotary may hear a claim in respect of one or more individual question in an action that has been certified as a class proceeding in which the amount claimed by a class member does not exceed $50,000 exclusive of interest and costs.
Rule 114 which enunciates the powers of the Court and proposes that a proceeding may be brought by or against a person acting as a representative on behalf of one or more other persons on conditions stipulated in paragraphs (a) to (d) is added.
Rule 121 of both versions is amended so as to better reflect the situation created by the amendment (reference to "representative proceeding or a class proceeding" instead of "class action").
A new part (Part 5.1) is added after rule 334 which will apply to actions and applications, other than applications for judicial review under section 28 of the Federal Courts Act. One significant change is that a member of a class of persons may now commence an action or an application on behalf of members of that class. Rule 334.15 provides for the time of service and filing of a motion for certification.
Finally, minor consequential amendments are provided for the Federal Courts Immigration and Refugee Protection Rules (FCIRPR), including adding a reference to the new Part 5.1 to section 4 of those Rules. The amendments are made possible in the same consolidated regulatory amendments since the regulation-making authority is the same even though they are distinct statutes.
(ii) "Serve and File"
The French version of rule 306 is amended in order to ensure consistency with the English version of that Rule and with rule 73, as well as to reflect what is done in practice.
The French version of rule 307 is amended in order to ensure consistency with the English version of that Rule and with rule 73, as well as to reflect what is done in practice.
The French version of subsection 341(1) is amended in order to ensure consistency with the English version of that Rule and with rule 73, as well as to reflect what is done in practice.
(iii) Form 261 — Notice of pre-trial conference
An amendment is made to the form to indicate that a pre-trial conference memorandum, in accordance with subsection 258(3) of the Federal Courts Rules, must be served and filed by each party other than the party who filed the requisition for a pre-trial conference, within 30 days after being served with the requisition.
An amendment is made to the form to indicate that a pre-trial conference memorandum must be accompanied by the documents referred in subsection 258(4) of the Rules.
An amendment is made to the form to indicate that participants must be prepared to address any issues arising from any affidavits or statements of expert witnesses, and to establish the need for any additional or rebuttal expert witness evidence.
(iv) Subsection 93(2)
The English version of subsection 93(2) is amended. The words "for discovery" are deleted to ensure that both the English and French versions have the same scope.
Benefits and costs
There are no costs associated with these amendments.
Consultation
A discussion paper was circulated by the Rules Committee dated June 9, 2000, with regards to class proceedings. Since then, the proposed amendments were discussed by a Rules sub-committee, as well as at the plenary Rules Committee, which is composed of judges from the Federal Court of Appeal and the Federal Court, practising lawyers in either the Government or in private firms, and academics from various regions of the country. The proposed amendments were also discussed at Bench and Bar Liaison Committee.
Contact
François Giroux
Secretary of the Rules Committee of the Federal Court of Appeal and the Federal Court
Ottawa, Ontario
K1A 0H9
Telephone: 613-995-5063
Fax: 613-941-9454
Email: Francois.Giroux@fca-caf.gc.ca
PROPOSED REGULATORY TEXT
Notice is hereby given that the rules committee of the Federal Court of Appeal and the Federal Court, pursuant to section 46 (see footnote a) of the Federal Courts Act (see footnote b) and section 75 (see footnote c) of the Immigration and Refugee Protection Act (see footnote d), proposes to make the annexed Rules Amending Certain Rules Governing Practice and Procedure Applicable to the Federal Courts (Representative Proceedings, Class Proceedings and Other Amendments), which notice is in accordance with paragraph 46(4)(a) (see footnote e) of the Federal Courts Act (see footnote f) in relation to the portion of those Rules that amends the Federal Courts Rules.
Interested persons may make representations with respect to the proposed Rules within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to François Giroux, Secretary to the Rules Committee, Federal Court of Appeal, 90 Sparks Street, 10th Floor, Ottawa, Ontario K1A 0H9 (tel.: 613-995-5063; e-mail: francois.giroux@fca-caf.gc.ca).
Ottawa, June 6, 2007
RAYMOND GUENETTE
Acting Chief Administrator
Courts Administration Service
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RULES AMENDING CERTAIN RULES GOVERNING PRACTICE AND PROCEDURE APPLICABLE TO THE FEDERAL COURTS (REPRESENTATIVE PROCEEDINGS, CLASS PROCEEDINGS AND OTHER AMENDMENTS) |
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FEDERAL COURTS ACT |
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FEDERAL COURTS RULES |
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1. (1) The definitions "applicant" and "plaintiff" in rule 2 of the English version of the Federal Courts Rules (see footnote 1) are replaced by the following: |
"applicant"
« demandeur » |
"applicant"
(a) except in the case of an application that has been certified as a class proceeding, includes a person on whose behalf an application is commenced; and
(b) in the case of an application that has been certified as a class proceeding, means
(i) in respect of the common questions of law or fact, the representative applicant, and
(ii) in respect of individual questions, the member to whom those questions apply. |
"plaintiff"
« demandeur » |
"plaintiff"
(a) except in the case of an action that has been certified as a class proceeding, includes a person on whose behalf an action is commenced; and
(b) in the case of an action that has been certified as a class proceeding, means
(i) in respect of the common questions of law or fact, the representative plaintiff, and
(ii) in respect of individual questions, the member to whom those questions apply. |
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(2) The definition "demandeur" in rule 2 of the French version of the Rules is replaced by the following: |
« demandeur »
"applicant" or "plaintiff " |
« demandeur »
a) Dans le cas d'une action ou d'une demande autre que celle autorisée comme recours collectif, est assimilée au demandeur toute personne pour le compte de laquelle l'action ou la demande est introduite;
b) dans le cas d'une action ou d'une demande autorisée comme recours collectif :
(i) à l'égard des points de droit ou de fait communs, le représentant demandeur,
(ii) à l'égard des points individuels, le membre concerné. |
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2. (1) Paragraph 50(1)(a) of the French version of the Rules is replaced by the following:
a) une requête à l'égard de laquelle les présentes règles ou une loi fédérale confèrent expressément la compétence à un juge; |
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(2) Paragraph 50(1)(l) of the Rules is replaced by the following:
(l) for the certification of an action or an application as a class proceeding. |
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(3) Subsection 50(3) of the English version of the Rules is replaced by the following: |
| Class proceedings |
(3) A prothonotary may hear a claim in respect of one or more individual questions in a class proceeding in which the amount claimed by a class member does not exceed $50,000 exclusive of interest and costs. |
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(4) Subsection 50(5) of the French version of the Rules is replaced by the following: |
| Jugement sur consentement |
(5) Malgré les alinéas (1)c) et k) et sauf dans une instance à l'égard de laquelle une loi fédérale confère expressément la compétence à un juge, le protonotaire peut prononcer tout jugement final qu'un juge de la Cour fédérale a le pouvoir de prononcer s'il est convaincu que les parties intéressées y consentent. |
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3. Subsection 93(2) of the English version of the Rules is replaced by the following: |
| Administrator to provide interpreter |
(2) Where an interpreter is required because the examining party wishes to conduct an oral examination in one official language and the person to be examined wishes to be examined in the other official language, on the request of the examining party made at least six days before the examination, the Administrator shall arrange for the attendance and pay the fees and disbursements of an independent and competent interpreter. |
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4. The Rules are amended by adding the following after rule 113: |
| Representative proceedings |
114. (1) Despite rule 302, a proceeding, other than a proceeding referred to in section 27 or 28 of the Act, may be brought by or against a person acting as a representative on behalf of one or more other persons on the condition that
(a) the issues asserted by or against the representative and the represented persons
(i) are common issues of law and fact and there are no issues affecting only some of those persons, or
(ii) relate to a collective interest shared by those persons;
(b) the representative is authorized to act on behalf of the represented persons;
(c) the representative can fairly and adequately represent the interests of the represented persons; and
(d) the use of a representative proceeding is the just, most efficient and least costly manner of proceeding. |
| Powers of the Court |
(2) At any time, the Court may
(a) determine whether the conditions set out in subsection (1) are being satisfied;
(b) require that notice be given, in a form and manner directed by it, to the represented persons;
(c) impose any conditions on the settlement process of a representative proceeding that the Court considers appropriate; and
(d) provide for the replacement of the representative if that person is unable to represent the interests of the represented persons fairly and adequately. |
| Orders in representative proceeding |
(3) An order in a representative proceeding is binding on the represented persons unless otherwise ordered by the Court. |
| Approval of discontinuance or settlement |
(4) The discontinuance or settlement of a representative proceeding is not effective unless it is approved by the Court. |
| Style of cause |
(5) Every document in a proceeding commenced under subsection (1) shall be prefaced by the heading "Representative Proceeding". |
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5. Rule 121 of the Rules is replaced by the
following: |
| Parties under legal disability or acting in representative capacity |
121. Unless the Court in special circumstances orders otherwise, a party who is under a legal disability or who acts or seeks to act in a representative capacity, including in a representative proceeding or a class proceeding, shall be represented by a solicitor. |
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6. The headings before rule 299.1 and
rules 299.1 to 299.42 of the Rules are repealed. |
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7. The Rules are amended by adding the following after rule 334: |
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PART 5.1 |
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CLASS PROCEEDINGS |
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APPLICATION |
| Application |
334.1 This Part applies to actions and applications other than applications for judicial review under section 28 of the Act. |
Applicability
of rules for actions and applications |
334.11 Except to the extent that they are incompatible with the rules in this Part, the rules applicable to actions and applications, as the case may be, apply to class proceedings. |
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PROCEEDINGS THAT MAY BE CERTIFIED
AS CLASS PROCEEDINGS |
| By class member |
334.12 (1) Despite rule 302, a member of a class of persons may commence an action or an application on behalf of the members of that class, in which case the originating document shall be prefaced by the heading "Proposed Class Proceeding". |
| Motion for certification of proceeding |
(2) The member shall bring a motion for the certification of the proceeding as a class proceeding and for the appointment of the member as representative plaintiff or applicant. |
| Who may be representative |
(3) The representative of a class shall be a person who may act as a plaintiff or an applicant under these Rules. |
| Originating document in immigration matters |
(4) For the purposes of subsection (1), in the case of an application for judicial review referred to in section 72 of the Immigration and Refugee Protection Act, the originating document is the application for leave referred to in subsection 72(1) of that Act. |
| By defendant or respondent |
334.13 (1) A defendant to an action or a respondent to an application may, at any time, bring a motion for the certification of the proceeding as a class proceeding and for the appointment of a representative plaintiff or applicant. |
| Application of rule 334.16 |
(2) Rule 334.16 applies to the certification of a proceeding referred to in subsection (1) as a class proceeding, with the exception, unless a judge orders otherwise, of subparagraphs 334.16(1)(e)(ii) and (iv) and paragraphs 334.16(3)(b) and (d). |
| Counterclaims |
334.14 (1) If a defendant to an action that was commenced by a member of a class of persons on behalf of the members of that class makes a counterclaim against the class, the counterclaim may not proceed unless it is certified as a class proceeding. |
| Defendant or respondent class proceeding |
(2) A party to an action or an application against two or more defendants or respondents may, at any time, bring a motion for the certification of the proceeding as a class proceeding and for the appointment of a representative defendant or respondent. |
| Necessary modifications |
(3) This Part applies, with any necessary modifications, to a counterclaim referred to in subsection (1) and to a proceeding referred to in
subsection (2). |
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MOTION FOR CERTIFICATION |
| Time of service and filing |
334.15 (1) A notice of motion for the certification of a proceeding as a class proceeding and the affidavit in support of that motion shall be served and filed
(a) in an application for judicial review referred to in section 72 of the Immigration and Refugee Protection Act, at the time fixed by the case management judge assigned to the proceeding; or
(b) in any other proceeding, at least 14 days before the day set out in the notice for the hearing of the motion. |
| Return of motion — actions |
(2) In the case of an action, the motion shall be made returnable no later than 90 days after the later of
(a) the day on which the last statement of defence was filed, and
(b) the day on which, under rule 204, the last statement of defence is required to be served and filed. |
| Return of motion — applications |
(3) In the case of an application, the motion shall be made returnable
(a) in an application for judicial review referred to in section 72 of the Immigration and Refugee Protection Act, at the time fixed by the case management judge assigned to the proceeding; or
(b) in any other application, no later than 30 days after the issuance of the notice of application. |
| Affidavit in response |
(4) A person who serves and files an affidavit in response to a notice of motion and affidavit shall serve and file it at least five days before the day set out in the notice for the hearing of the motion. |
| Content of affidavit |
(5) A person filing an affidavit under subsection (1) or (4) shall set out in the affidavit
(a) the material facts on which the person intends to rely at the hearing of the motion;
(b) that the person knows of no fact material to the motion that has not been disclosed in the person's affidavit; and
(c) to the best of the person's knowledge, the number of members in the proposed class. |
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CERTIFICATION |
| Conditions |
334.16 (1) Subject to subsection (3), a judge shall, by order, certify a proceeding as a class proceeding if
(a) the pleadings disclose a reasonable cause of action;
(b) there is an identifiable class of two or more persons;
(c) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;
(d) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
(e) there is a representative plaintiff or applicant who
(i) would fairly and adequately represent the interests of the class,
(ii) has prepared 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 as to how the proceeding is progressing,
(iii) does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and
(iv) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff or applicant and the solicitor of record. |
| Matters to be considered |
(2) All relevant matters shall be considered in a determination of whether a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact, including whether
(a) the questions of law or fact common to the class members predominate over any questions affecting only individual members;
(b) a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate proceedings;
(c) the class proceeding would involve claims that are or have been the subject of any other proceeding;
(d) other means of resolving the claims are less practical or less efficient; and
(e) the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means. |
| Subclasses |
(3) If the judge determines that a class includes a subclass whose members have claims that raise common questions of law or fact that are not shared by all of the class members so that the protection of the interests of the subclass members requires that they be separately represented, the judge shall not certify the proceeding as a class proceeding unless there is a representative plaintiff or applicant who
(a) would fairly and adequately represent the interests of the subclass;
(b) has prepared a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the subclass and of notifying subclass members as to how the proceeding is progressing;
(c) does not have, on the common questions of law or fact for the subclass, an interest that is in conflict with the interests of other subclass members; and
(d) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff or applicant and the solicitor of record. |
| Contents of order |
334.17 (1) An order certifying a proceeding as a class proceeding shall
(a) describe the class;
(b) state the name of the representative plaintiff or applicant;
(c) state the nature of the claims made on behalf of the class;
(d) state the relief claimed by or from the class;
(e) set out the common questions of law or fact for the class; and
(f) specify the time and manner for class members to opt out of the class proceeding. |
| Subclasses |
(2) If the judge determines that a class includes a subclass whose members have claims that raise common questions of law or fact that are not shared by all of the class members so that the protection of the interests of the subclass members requires that they be separately represented, the certifying order shall include the information referred to in subsection (1) in respect of the subclass. |
| Grounds that may not be relied on |
334.18 A judge shall not refuse to certify a proceeding as a class proceeding solely on one or more of the following grounds:
(a) the relief claimed includes a claim for damages that would require an individual assessment after a determination of the common questions of law or fact;
(b) the relief claimed relates to separate contracts involving different class members;
(c) different remedies are sought for different class members;
(d) the precise number of class members or the identity of each class member is not known; or
(e) the class includes a subclass whose members have claims that raise common questions of law or fact not shared by all of the class members. |
| Amendment and decertification |
334.19 A judge may, on motion, amend an order certifying a proceeding as a class proceeding or, if the conditions for certification are no longer satisfied with respect to the proceeding, decertify it. |
| Continuation of action |
334.2 If a judge refuses to certify a proceeding as a class proceeding or decertifies a proceeding, the judge may permit the proceeding to continue as one or more proceedings and may make any appropriate order in that regard. |
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OPTING OUT AND EXCLUSION |
| Voluntary |
334.21 (1) A class member involved in a class proceeding may opt out of the proceeding within the time and in the manner specified in the order certifying the proceeding as a class proceeding. |
| Automatic |
(2) A class member shall be excluded from the class proceeding if the member does not, before the expiry of the time for opting out specified in the certifying order, discontinue a proceeding brought by the member that raises the common questions of law or fact set out in that order. |
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EXAMINATION FOR DISCOVERY |
Leave to examine
others — actions |
334.22 (1) A party in an action that has been certified as a class proceeding may examine a class member, other than the representative plaintiff, for discovery only on leave granted by the Court and only after the examination of the representative plaintiff. |
| Considerations |
(2) In deciding whether to grant leave to examine class members, the Court shall consider all relevant matters, including
(a) the stage of the class proceeding and the
issues to be determined at that stage;
(b) the presence of subclasses;
(c) the necessity of an examination in view of the claims or defences of the party seeking leave;
(d) the approximate monetary value of any individual claims; and
(e) the possibility that the examination might result in undue burden or expense for the class members sought to be examined. |
| Application of sanctions |
(3) A class member is subject to the same sanctions under these Rules as a party for failure to submit to an examination. |
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PARTICIPATION |
| By class members |
334.23 (1) To ensure the fair and adequate representation of the interests of a class or any subclass, the Court may, at any time, permit one or more class members to participate in the class
proceeding. |
| Direction |
(2) When permitting a class member to participate in the proceeding, the Court shall give directions regarding the role of the participant, including matters relating to costs and to the procedures to be followed. |
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JUDGMENTS |
| Separate judgments |
334.24 (1) A judge may give a single judgment in respect of the common questions of law or fact and separate judgments in respect of any other questions. |
| Content |
(2) A judgment on questions of law or fact that are common to a class or subclass shall
(a) set out the common questions of law or fact;
(b) name or describe the class or subclass members to the extent possible;
(c) state the nature of the claims asserted on behalf of the class or subclass; and
(d) specify the relief granted. |
| Common questions |
334.25 (1) A judgment on questions of law or fact that are common to a class or subclass binds every class or subclass member who has not opted out of or been excluded from the class proceeding, but only to the extent that the judgment determines common questions of law or fact that
(a) are set out in the certifying order;
(b) relate to claims described in that order; and
(c) relate to relief sought by the class or subclass as stated in that order. |
| Subsequent actions |
(2) A judgment on common questions of law or fact of a class or subclass does not bind a party to the class proceeding in any subsequent proceeding between the party and a member who has opted out of or been excluded from the class proceeding. |
| Individual questions |
334.26 (1) If a judge determines that there are questions of law or fact that apply only to certain individual class or subclass members, the judge shall set a time within which those members may make claims in respect of those questions and may
(a) order that the individual questions be determined in further hearings;
(b) appoint one or more persons to evaluate the individual questions and report back to the judge; or
(c) direct the manner in which the individual questions will be determined. |
| Judge may give directions |
(2) In those circumstances, the judge may give directions relating to the procedures to be followed. |
| Who may preside |
(3) For the purposes of paragraph (1)(a), the judge who determined the common questions of law or fact, another judge or, in the case of a claim referred to in subsection 50(3), a prothonotary
may preside over the hearings of the individual questions. |
| Defendant's liability |
334.27 In the case of an action, if, after determining common questions of law or fact in favour of a class or subclass, a judge determines that the defendant's liability to individual class members cannot be determined without proof by those individual class members, rule 334.26 applies to the determination of the defendant's liability to those class members. |
| Assessment of monetary relief |
334.28 (1) A judge may make any order in respect of the assessment of monetary relief, including aggregate assessments, that is due to the class or subclass. |
| Distribution of monetary relief |
(2) A judge may make any order in respect of the distribution of monetary relief, including an undistributed portion of an award that is due to a class or subclass or its members. |
| Special modes of proof |
(3) For the purposes of this rule, a judge may order any special modes of proof. |
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SETTLEMENTS |
| Approval |
334.29 (1) A class proceeding may be settled only with the approval of a judge. |
Binding
effect |
(2) On approval, a settlement binds every class or subclass member who has not opted out of or been excluded from the class proceeding. |
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DISCONTINUANCE |
| Approval |
334.3 A proceeding commenced by a member of a class of persons on behalf of the members of that class may only be discontinued with the approval of a judge. |
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APPEALS |
| Individual questions |
334.31 (1) A class member may appeal any order determining or dismissing the member's claim in respect of one or more individual questions. |
| Representative plaintiff or applicant failing to appeal |
(2) If a representative plaintiff or applicant does not appeal an order, or does appeal and later files a notice of discontinuance of the appeal, any member of the class for which the representative plaintiff or applicant had been appointed may apply for leave to exercise the right of appeal of that representative within 30 days after
(a) the expiry of the appeal period available to the representative, if the representative does not appeal; or
(b) the day on which the notice of discontinuance is filed, if the representative appeals and later files a notice of discontinuance of the appeal. |
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NOTICES |
| Who gives notice |
334.32 (1) Notice that a proceeding has been certified as a class proceeding shall be given by the representative plaintiff or applicant to the class members. |
| Dispensation |
(2) A judge may dispense with the giving of
notice after considering the factors set out in
subsection (3). |
| Factors |
(3) A judge shall order when and by what means notice is to be given after considering the following factors:
(a) the cost of giving notice;
(b) the nature of the relief sought;
(c) the size of the individual claims of the class members;
(d) the number of class members;
(e) the presence of subclasses;
(f) the likelihood that some or all of the class members will opt out of the class proceeding; and
(g) the places of residence of class members. |
| How given |
(4) The order may provide that notice be given by
(a) personal delivery;
(b) mail;
(c) posting, publishing, advertising or the distribution of leaflets;
(d) individually notifying a sample group within the class; or
(e) any other appropriate means or combination of appropriate means. |
| Content of notice |
(5) The notice shall
(a) describe the proceeding, including the names and addresses of the representative plaintiff or applicant, and the relief sought;
(b) state the time and manner for a class member to opt out of the proceeding;
(c) describe the possible financial consequences of the proceeding to the class and subclass members;
(d) summarize any agreements respecting fees and disbursements
(i) between the representative plaintiff or applicant and that representative's solicitor, and
(ii) if the recipient of the notice is a member of a subclass, between the representative plaintiff or applicant for that subclass and that representative's solicitor;
(e) in the case of an action, describe any counterclaim being asserted by or against the class or any subclass, including the relief sought in the counterclaim;
(f) state that the judgment on the common questions of law or fact for the class or subclass, whether favourable or not, will bind all of the class members or subclass members who do not opt out of the proceeding;
(g) describe the right, if any, of the class or subclass members to participate in the proceeding; and
(h) give an address to which class members may direct inquiries about the proceeding. |
| Request for contributions |
(6) With leave of the judge, the notice may include a solicitation of contributions from the class or subclass members to assist in paying the fees and disbursements of the solicitor of record. |
| Notice of determination of common questions |
334.33 If common questions of law or fact are determined in favour of the class or a subclass, the representative plaintiff or applicant for the class or subclass shall give notice of that determination to the class or subclass members in accordance with the directions of a judge in respect of the content of and means of giving the notice. |
| Notice of settlement |
334.34 Notice that an offer to settle has been made or that a settlement has been approved under rule 334.29 shall be given by the representative plaintiff or applicant to the class or subclass members in accordance with the directions of a judge in respect of the content of and means of giving the notice. |
Notice
to others |
334.35 (1) A judge may, at any time, order any party to give any notice that the judge considers necessary to protect the interests of any class member or party or to ensure the fair conduct of the proceeding. |
Application
of subsections 334.32(3) and (4) |
(2) Subsections 334.32(3) and (4) apply to a notice given under this rule. |
| Order |
334.36 A judge may order any party to give a notice under rules 334.32 to 334.35. |
Prior
approval of notices |
334.37 Notices referred to in rules 334.32 to 334.35 shall not be given unless they have been approved by a judge. |
| Expenses |
334.38 The judge has full discretion over the amount and allocation of expenses in respect of notices and may determine who is to pay those expenses. |
| |
COSTS |
| No costs |
334.39 (1) Subject to subsection (2), no costs may be awarded against any party to a motion for certification of a proceeding as a class proceeding, to a class proceeding or to an appeal arising from a class proceeding, unless
(a) the conduct of the party unnecessarily lengthened the duration of the proceeding;
(b) any step in the proceeding by the party was improper, vexatious or unnecessary or was taken through negligence, mistake or excessive caution; or
(c) exceptional circumstances make it unjust to deprive the successful party of costs. |
| Individual claims |
(2) The Court has full discretion to award costs with respect to the determination of the individual claims of a class member. |
| Approval of payments |
334.4 No payments, including indirect payments, shall be made to a solicitor from the proceeds recovered in a class proceeding unless the payments are approved by a judge. |
| Where memorandum of fact and law required |
8. Rule 366 of the Rules is replaced by the
following:
366. On a motion for summary judgment, for an interlocutory injunction, for the determination of a question of law, for the certification of a proceeding as a class proceeding or, if the Court so orders, a motion record shall contain a memorandum of fact and law instead of written representations. |
| Class proceedings |
9. Rule 384.1 of the Rules is replaced by the following:
384.1 A proceeding commenced by a member of a class of persons on behalf of the members of that class shall be conducted as a specially managed proceeding. |
Order to
cease special management |
10. Subsection 385(3) of the English version of the Rules is replaced by the following:
(3) A case management judge or a prothonotary assigned under paragraph 383(c) may order that a proceeding, other than a class proceeding, cease to be conducted as a specially managed proceeding, in which case the periods set out in these Rules for taking any subsequent steps apply. |
| |
11. (1) The third paragraph of Form 261 of the Rules is replaced by the following:
A PRE-TRIAL CONFERENCE MEMORANDUM in accordance with subsection 258(3) of the Federal Courts Rules must be served and filed by each party, other than the party who filed the requisition for a pre-trial conference, within 30 days after being served with the requisition.
A PRE-TRIAL CONFERENCE MEMORANDUM must be accompanied by the documents referred to in subsection 258(4) of the Rules. |
| |
(2) Item (c) of the fourth paragraph of
Form 261 of the Rules is replaced by the
following:
(c) any issues arising from any affidavits or statements of expert witnesses, and the need for any additional or rebuttal expert witness evidence; |
| |
12. The French version of the Rules is amended by replacing "dépose et signifie" with "signifie et dépose" in the following provisions:
(a) rule 306;
(b) rule 307; and
(c) the portion of subsection 341(1) before paragraph (a). |
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IMMIGRATION AND REFUGEE PROTECTION ACT |
| |
FEDERAL COURTS IMMIGRATION AND
REFUGEE PROTECTION RULES |
| |
13. Subrule 4(1) of the Federal Courts Immigration and Refugee Protection Rules (see footnote 2) is replaced by the following: |
| |
4. (1) Subject to subrule (2), except to the extent that they are inconsistent with the Act or these Rules, Parts 1 to 3, 5.1, 6, 7, 10 and 11 and
rules 383 to 385 of the Federal Courts Rules apply to applications for leave, applications for judicial review and appeals. |
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COMING INTO FORCE |
| |
14. These Rules come into force on the day on which they are registered. |
[26-1-o]
Footnote a
S.C. 2002, c. 8, s. 44
Footnote b
S.C. 2002, c. 8, s. 14
Footnote c
S.C. 2002, c. 8, s. 194
Footnote d
S.C. 2001, c. 27
Footnote e
S.C. 1990, c. 8, s. 14(4)
Footnote f
S.C. 2002, c. 8, s. 14
Footnote 1
SOR/98-106; SOR/2004-283
Footnote 2
SOR/93-22; SOR/2002-232
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