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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)

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

Judgments

Marginal note:Separate judgments

  •  (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.

  • SOR/2007-301, s. 7

Marginal note:Common questions

  •  (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.

  • SOR/2007-301, s. 7

Marginal note:Individual questions

  •  (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.

  • SOR/2007-301, s. 7

Marginal note:Defendant’s liability

 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.

  • SOR/2007-301, s. 7

Marginal note:Assessment of monetary relief

  •  (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.

  • SOR/2007-301, s. 7

Settlements

Marginal note:Approval

  •  (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.

  • SOR/2007-301, s. 7

Discontinuance

Marginal note:Approval

 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.

  • SOR/2007-301, s. 7

Appeals

Marginal note:Individual questions

  •  (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.

  • SOR/2007-301, s. 7
 
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