Federal Courts Rules (SOR/98-106)

Commercial Arbitrations

Marginal note:Notice of application

• 324 (1) Subject to subsection (2), a request under the Commercial Arbitration Code, set out in Schedule 1 to the Commercial Arbitration Act, shall be brought by a notice of application.

• Marginal note:Exception

  (2) Where the subject matter of an arbitration to which a request under the Code relates is already the subject matter of a proceeding before the Court, the request may be brought as a motion in that proceeding.

• Marginal note:Affidavit

  (3) An affidavit in support of a notice of application under subsection (1) or a motion under subsection (2) shall be accompanied by a copy of the parties’ arbitration agreement and state

  • (a) all material facts;

  • (b) unless the request is brought pursuant to article 8(1) or 9 of the Code, that the arbitration to which the request relates is governed by Canadian law or has been, is being or will be held within the jurisdiction of the Court; and

  • (c) where the request is brought pursuant to article 27 of the Code, the nature of the evidence to be obtained, the name and address of any person to be heard as a witness and the subject-matter of any testimony required from that person, and describe any document to be produced or property to be inspected.

Divorce Proceedings

Marginal note:Procedure of province to apply

• 325 (1) Unless the Court orders otherwise, where the Court makes a direction pursuant to subsection 3(3) or 5(3) of the Divorce Act, the rules made under section 25 of that Act for the province specified in the direction pursuant to subsection 23(2) of that Act shall apply to the conduct of the proceeding in the Court, with such modifications as the circumstances require.

• Marginal note:Motion for modification of rules

  (2) A party to a proceeding referred to in subsection (1) may at any time, by motion, request a modification to the rules referred to in that subsection.

Foreign Judgments and Arbitral Awards

Marginal note:Definitions

326 The following definitions apply to rules 327 to 334.

arbitration agreement

arbitration agreement means an agreement in writing as defined in article II of the convention set out in the schedule to the United Nations Foreign Arbitral Awards Convention Act or an arbitration agreement as defined in Article 7 of the Commercial Arbitration Code, set out in Schedule 1 to the Commercial Arbitration Act. (convention d’arbitrage)

foreign judgment

foreign judgment means a judgment or arbitral award that may be registered in a court in Canada in accordance with

• (a) sections 63 to 71 of the Marine Liability Act;

• (b) the Canada-United Kingdom Civil and Commercial Judgments Convention Act;

• (c) the United Nations Foreign Arbitral Awards Convention Act; or

• (d) articles 35 and 36 of the Commercial Arbitration Code, set out in Schedule 1 to the Commercial Arbitration Act. (jugement étranger)

Marginal note:Form of application

327 An application for registration, recognition or enforcement of a foreign judgment shall be in Form 327.

Marginal note:Ex parte application

• 328 (1) An application under rule 327 may be brought ex parte.

• Marginal note:Directions regarding service

  (2) On an ex parte application under subsection (1), the Court may direct that notice of the application be served on the foreign judgment debtor and may give such directions respecting the manner of service as it considers just.

Marginal note:Affidavit

• 329 (1) An affidavit filed in an application under rule 327 shall be accompanied by an exemplified or certified copy of the foreign judgment, any reasons, including dissenting reasons, given in respect of that judgment and a copy of any arbitration agreement under which the judgment was awarded and shall state

  • (a) that the foreign judgment was not fully satisfied as at the filing of the application;

  • (b) whether the foreign judgment debtor appeared in the original proceeding;

  • (c) an address in Canada for service on the foreign judgment creditor;

  • (d) the name and usual or last known address of the foreign judgment debtor;

  • (e) whether interest has accrued on the amount payable under the foreign judgment in accordance with the law of the state of the originating court or arbitral tribunal and, if interest has accrued, the rate of interest, the day from which it is payable, the amount due at the time of the filing of the application and, where applicable, the day on which interest ceases to accrue;

  • (f) the rate of exchange into Canadian currency prevailing on the day on which the foreign judgment was rendered, as ascertained from a chartered bank in Canada;

  • (g) that, having made careful and full inquiries, the applicant knows of no impediment to registration, recognition or enforcement of the foreign judgment; and

  • (h) that the foreign judgment is executory, that no appeal or other form of judicial review is pending and that any time prescribed for the making of an appeal or application for judicial review has expired.

• Marginal note:Affidavit of service

  (2) Where a foreign judgment debtor did not appear in the original proceeding, an affidavit referred to in subsection (1) shall be accompanied by an affidavit of service on the foreign judgment debtor of the document instituting the original proceedings.

Marginal note:Other evidence

330 The Court may accept evidence on an application under rule 327 other than affidavit evidence.

Marginal note:Amounts in Canadian currency

331 Unless the Court orders otherwise, an amount payable under a foreign judgment shall be converted into the equivalent amount in Canadian currency on the basis of the rate of exchange, ascertained from a chartered bank in Canada, that was prevailing on the day on which the foreign judgment was rendered.

Marginal note:Interest

• 332 (1) Any interest on an amount payable under a foreign judgment that has accrued to the day of registration of the foreign judgment shall be added to the amount payable under the foreign judgment.

• Marginal note:Interest

  (2) Unless the Court orders otherwise, an amount payable under a foreign judgment registered pursuant to an application under rule 327 bears interest from the day of registration at the rate set out in section 3 of the Interest Act.

Marginal note:Service of order for registration

333 Unless the Court orders otherwise, a foreign judgment creditor who obtains an order for registration of a foreign judgment shall personally serve the order on the foreign judgment debtor, together with a translation thereof in the language of the foreign judgment and an affidavit attesting to its accuracy.

Marginal note:Execution

334 Unless the Court orders otherwise, execution shall not be issued on a foreign judgment registered pursuant to an application under rule 327 until proof of service of the order for registration has been filed.

PART 5.1Class Proceedings

Application

Marginal note:Application

334.1 This Part applies to actions and applications other than applications for judicial review under section 28 of the Act.

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.