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Federal Courts Rules (SOR/98-106)

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Regulations are current to 2021-06-28 and last amended on 2021-06-17. Previous Versions

PART 5.1Class Proceedings (continued)

Motion for Certification

Marginal note:Time of service and filing

  •  (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.

  • SOR/2007-301, s. 7

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
 
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