Federal Courts Rules (SOR/98-106)

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Regulations are current to 2019-03-27 and last amended on 2015-01-30. Previous Versions

PART 5.1Class Proceedings (continued)

Certification

Marginal note:Conditions

  •  (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.

  • SOR/2007-301, s. 7.

Marginal note:Contents of order

  •  (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.

  • SOR/2007-301, s. 7.

Marginal note:Grounds that may not be relied on

 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.

  • SOR/2007-301, s. 7.

Marginal note:Amendment and decertification

 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.

  • SOR/2007-301, s. 7.

Marginal note:Continuation of action

 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.

  • SOR/2007-301, s. 7.

Opting Out and Exclusion

Marginal note:Voluntary

  •  (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.

  • SOR/2007-301, s. 7.

Examination for Discovery

Marginal note:Leave to examine others — actions

  •  (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.

  • SOR/2007-301, s. 7.

Participation

Marginal note:By class members

  •  (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.

  • Marginal note:Directions

    (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.

  • SOR/2007-301, s. 7.
 
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