Federal Courts Rules (SOR/98-106)

Marginal note: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.

Proceedings That May Be Certified as Class Proceedings

Marginal note: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”.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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).

Marginal note: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.

• Marginal note: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.

• Marginal note: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).

Motion for Certification

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Certification

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Opting Out and Exclusion

Marginal note: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.

• Marginal note: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.

Examination for Discovery

Marginal note: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.

• Marginal note: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.

• Marginal note: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.