Federal Courts Rules (SOR/98-106)

Participation

Marginal note: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.

• 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.

Judgments

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note:Judge may give directions

  (2) In those circumstances, the judge may give directions relating to the procedures to be followed.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note:Special modes of proof

  (3) For the purposes of this rule, a judge may order any special modes of proof.

Settlements

Marginal note:Approval

• 334.29 (1) A class proceeding may be settled only with the approval of a judge.

• Marginal note: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.

Discontinuance

Marginal note: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.

Appeals

Marginal note: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.

• Marginal note: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.

Notices

Marginal note: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.

• Marginal note:Dispensation

  (2) A judge may dispense with the giving of notice after considering the factors set out in subsection (3).

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note:Application of subsections 334.32(3) and (4)

  (2) Subsections 334.32(3) and (4) apply to a notice given under this rule.

Marginal note:Order

334.36 A judge may order any party to give a notice under rules 334.32 to 334.35.

Marginal note: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.

Marginal note: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

Marginal note: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.

• Marginal note:Individual claims

  (2) The Court has full discretion to award costs with respect to the determination of the individual claims of a class member.