Federal Courts Rules (SOR/98-106)

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.

Marginal note: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.

PART 6Appeals

Application of this Part

Marginal note:Application

335 This Part applies to

• (a) appeals to the Federal Court of Appeal from the Federal Court, including appeals from interlocutory orders;

• (b) appeals to the Federal Court of Appeal from the Tax Court of Canada under subsections 27(1.1) and (1.2) of the Act; and

• (c) appeals to the Court under an Act of Parliament, unless otherwise indicated in that Act or these Rules.

General

Interpretation

Definition of first instance

336 In this Part, first instance means a proceeding in the Federal Court, the Tax Court of Canada or the tribunal whose order is being appealed.

Commencement of Appeal

Marginal note:Content of general notice of appeal

337 An appeal, other than an appeal from a final judgment of the Tax Court of Canada under subsection 27(1.2) of the Act, shall be commenced by a notice of appeal, in Form 337, setting out

• (a) the name of the court to which the appeal is taken;

• (b) the names of the parties;

• (c) a precise statement of the relief sought;

• (d) a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on;

• (e) the name of the court or tribunal appealed from;

• (f) the date and details of the order under appeal; and

• (g) the place proposed for the hearing of the appeal.

Marginal note:Content of notice of appeal — certain judgments of Tax Court of Canada

337.1 An appeal from a final judgment of the Tax Court of Canada under subsection 27(1.2) of the Act shall be commenced by a notice of appeal, in Form 337.1, setting out

• (a) the names of the parties;

• (b) a precise statement of the relief sought;

• (c) a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on;

• (d) the date and details of the final judgment under appeal; and

• (e) the place proposed for the hearing of the appeal.

Marginal note:Persons to be included as respondents

• 338 (1) Unless the Court orders otherwise, an appellant shall include as a respondent in an appeal

  • (a) every party in the first instance who is adverse in interest to the appellant in the appeal;

  • (b) any other person required to be named as a party by an Act of Parliament pursuant to which the appeal is brought; and

  • (c) where there are no persons that are included under paragraph (a) or (b), the Attorney General of Canada.

• Marginal note:Substitution for Attorney General

  (2) On a motion by the Attorney General of Canada, where the Court is satisfied that the Attorney General is unable or unwilling to act as a respondent in an appeal, the Court may substitute another person or body, including a tribunal whose order is being appealed, as a respondent in the place of the Attorney General of Canada.

Marginal note:Service of notice of appeal

• 339 (1) Unless the Court directs otherwise or an Act of Parliament authorizing the appeal provides otherwise, within 10 days after the issuance of a notice of appeal, the appellant shall serve it on

  • (a) all respondents;

  • (b) in the case of an appeal of an order of a tribunal,

    • (i) the Attorney General of Canada, and

    • (ii) the tribunal or its chief executive officer;

  • (c) any person who is not a party and who participated in the first instance; and

  • (d) any other person directly affected by the appeal.

• Marginal note:Proof of service

  (2) Proof of service of a notice of appeal shall be filed within 10 days after the notice of appeal is served.

Marginal note:Solicitor of record and address for service

340 In an appeal from the Federal Court to the Federal Court of Appeal, the solicitor of record and the address for service of a party on the appeal shall be the same as they were in the first instance, unless the solicitor of record in the first instance provided limited-scope representation and they served and filed a notice under subsection 124(5).

Marginal note:Appearance or cross-appeal

• 341 (1) A respondent who intends to participate in an appeal shall, within 10 days after service of the notice of appeal, serve and file

  • (a) a notice of appearance in Form 341A; or

  • (b) where the respondent seeks a different disposition of the order appealed from, a notice of cross-appeal in Form 341B.

• Marginal note:Content of notice of cross-appeal

  (2) A notice of cross-appeal shall set out

  • (a) a precise statement of the relief sought; and

  • (b) a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on.

• Marginal note:Leave for late cross-appeal

  (3) Where a respondent has not filed a notice of cross-appeal under subsection (1), the cross-appeal may not be heard without leave of the Court.