NEWFOUNDLAND AND LABRADOR REGULATION 26/02

1. The Rule of the Supreme Court, 1986 are amended by inserting immediately after Rule 7 the following:

RULE 7A
CLASS ACTIONS

Interpretation

7A.01. (1) In this rule,

(a) "Act" means the Class Actions Act;

(b) "case management judge" means the judge or his or her alternate designated by the Chief Justice to case manage a class proceeding and to consider the application for certification;

(i) a class action as defined in the Act,

(ii) a proceeding that is commenced on behalf of members of a class and is described in a pleading or application as having been brought pursuant to the provisions of the Act, even though it may not then have been certified as a class action,

(iii) a proceeding that is commenced on behalf of members of a class and is otherwise identified as a proceeding to which the Act may apply, and

(iv) a proceeding that is certified as a class action on the application of a defendant pursuant to section 4 of the Act, or in respect of which an application for such certification is pending; and

(d) "class proceedings co-ordinator" means the court clerk or other official designated by the Registrar from time to time as the person having responsibility for administrative co-ordination and management of class proceedings in the Court.

(2) Expressions used in this rule shall have the meaning assigned to them in the Act unless the context requires otherwise.

(3) The rules of court and the general practice and procedure of the Trial Division shall apply to class proceedings unless they are inconsistent with the Act or this rule.

(4) The rules of court, including Rule 7A, and the procedures to be followed with respect to class proceedings shall be interpreted and applied to achieve the objects of the Act, and in particular

(a) to promote the effective and economical use of the judicial system;

(b) to make the court system more accessible to the public; and

Commencement of proceedings

7A.02. (1) Where the plaintiff intends, at the commencement of the proceeding, that a certification order under the Act will be sought in respect of the proceeding, or where an application is made to certify a class action under the Act,

(a) the style of cause shall include, or be amended to include, the words "Brought under the Class Actions Act" immediately below the listed parties; and

(b) the file number assigned to the proceeding shall have appended at the end of the file number the letters "CP" indicating that it is intended as a class proceeding.

(2) Where a certification order is granted in respect of a proceeding the file number assigned to the proceeding shall have appended at the end of the file number the letters "CCP" in place of the letters "CP", indicating that it is a certified class proceeding.

(3) Where a certification order is refused in respect of a proceeding or the proceeding is decertified, the words "Brought under the Class Actions Act" shall be removed from the style of cause and the letters "CP" or "CCP" appended at the end of the file number shall be removed.

(4) Where a plaintiff intends at the commencement of a proceeding that a certification order will be sought under the Act, the originating document shall contain a paragraph describing the essential characteristics of the class on whose behalf the proceeding has been commenced.

File administration

7A.03. (1) The Registrar shall designate an official in the registry of the Judicial Centre of St. John's to act as the class proceedings co-ordinator.

(2) The class proceedings co-ordinator shall maintain a list of all active class proceedings commenced in all judicial centres.

(3) On the commencement of a class proceeding or on the filing of an application to certify a class action in a judicial centre other than in the Judicial Centre of St. John's, the Deputy Registrar or Assistant Deputy Registrar in that judicial centre shall notify the class proceedings co-ordinator of the particulars of the proceeding.

(4) On being made aware of the existence of a class proceeding, the class proceedings co-ordinator shall notify the Chief Justice and the Chief Justice or a judge designated by him shall designate a judge to act as the case management judge with respect to the proceeding. An alternate case management judge may also be designated, at the time of designation of the case management judge or subsequently, to act in the place of the case management judge in the event of his or her inability to act in respect of an application or meeting.

(5) The case management judge shall, once all counsel are identified

(a) convene a meeting with all counsel to discuss

(i) the timing of the certification application,

(ii) the steps to be taken with reference to the making of the certification application and the setting of milestones in relation thereto,

(iii) the appropriateness of making pre-certification motions,

(iv) the extent of examination for discovery, if any, that may be appropriate prior to the hearing of the certification application,

(v) the appropriateness of restructuring the proceeding as a proceeding not governed by the Act, and

(vi) other matters pertinent to or affecting the proper conduct of the proceeding as a class proceeding;

(b) hear and decide all pre-certification applications;

(d) in accordance with section 15 of the Act, hear and decide all applications in any class action so certified.

(6) The case management judge may at the request of a party or on his or her own motion at a convenient time on notice to all parties convene and hold case management meetings where in the opinion of the judge they will assist in the conduct of the class proceeding.

(7) The case management judge may incorporate a decision made by consent in a case management meeting in an order, or in the event of disagreement of the parties on a particular matter, adjourn the matter into chambers or Court for full argument and decision.

(8) Where a case management judge has been assigned in accordance with this rule, all subsequent applications in the proceeding shall be made to that judge and the party filing an application in the registry shall endorse on the application the name of the case management judge.

(9) The class proceedings co-ordinator shall bring to the attention of the case management judge an application submitted for filing in accordance with rule 7A.03(8), obtain an appropriate date from that judge for the hearing of that application and notify the parties of that date.

Certification application

7A.04. (1) An application for certification shall contain:

(a) a description of the class to be certified, including the method of determining whether a person is a member of the class for the purposes of

(i) identifying whether any individual may be entitled to the relief sought in the proceeding,

(ii) identifying all those persons who will be bound by the result of the proceeding, and

(iii) describing those persons who will be entitled to notice pursuant to the Act;

(b) a description of the person or persons proposed as the representative plaintiff or plaintiffs and their suitability in terms of

(i) ability to fairly and adequately represent the interests of the class or sub-class,

(ii) the preparation of a plan setting out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) the absence of any conflict with the interests of other class members on any of the common issues;

(c) a description of the nature of the claims asserted on behalf of and the relief sought by the class or sub-class, including a description of those questions of law or fact, if any, that are particular to each member individually;

(d) a statement of the common issues for the class or sub-class;

(e) the form of the notice of certification that is proposed to be given by the representative plaintiff to the class members in accordance with section 19 of the Act; and

(f) other information as may be necessary or desirable to enable the court to comply with Part I of the Act.

(2) An application for certification shall be supported by an affidavit of the applicant and be served on all other parties at least 20 days before the day set for the hearing.

(3) Unless otherwise ordered, a person upon whom an application and affidavit is served shall, not less than 10 days or such other period as the court may order, before the date of the hearing of the application, file an affidavit and deliver a copy thereof to all other parties.

(4) A person filing an affidavit under rule 7A.04(2) shall

(a) set out the material on which that person intends to rely at the hearing of the application, including the basis of the proposed representative plaintiff's personal claim and the reason that similar circumstances exist for the rest of the class members;

(b) set out sufficient information to establish that the proposed representative plaintiff is aware of the responsibilities to be undertaken and willing to undertake the role;

(d) depose that he or she knows of no other class or representative proceeding in this or another jurisdiction relating to all or part of the action proposed to be certified, or if he or she is aware of another such class or representative proceeding, state the particulars thereof; and

(e) provide the person's best information on the number of members in the proposed class, including references to any expert reports dealing with statistical data on the size of the class and the size of the losses incurred by the class.

(5) Where under subsection 7(2) of the Act a class is divided into resident and non-resident sub-classes, a separate representative plaintiff shall be designated for each sub-class.

(6) Where it appears that a class or representative proceeding covering all or a part of the matters to be dealt with in a class proceeding in this province has been certified in another jurisdiction in Canada, the court in considering whether and to what extent to grant the certification application

(a) may consider whether it would be appropriate to define the class as excluding the class certified in the other jurisdiction or as excluding persons who do not opt out of the other proceeding;

(b) may consider whether the other jurisdiction is a more convenient forum for the matter, and where the interests of the class resident in this province can be adequately represented in the other proceeding by the resident class members opting into that proceeding, stay the application;

(d) make such other disposition as may be desirable.

(7) In accordance with subsection 3(4) of the Act, a person who is not a member of the class may be certified as the representative plaintiff where it is necessary to avoid a substantial injustice to the class, including:

(a) a parent, guardian or the Registrar, where the members of the class are persons under disability and one of their number is unable to adequately represent the class; and

(b) a public agency or incorporated advocacy group whose mandate or primary interest is the protection of the rights of that class, where one of their number is unable to adequately represent the class.

(8) A certification application may be heard in stages and the court may make separate determinations at different times with respect to the requirements for certification in section 5 of the Act.

Application for certification by defendant

7A.05. (1) Where a defendant applies for certification under section 4 of the Act, the defendant shall notify the class proceedings co-ordinator of his or her intention to apply for certification.

(2) If the court certifies two or more proceedings as a class action under section 4 of the Act, the court may

(a) order the addition, deletion or substitution of parties;

(b) order the amendment and consolidation of the pleadings;

(d) make an order that it considers appropriate.

Subclass certification

7A.06. Where a subclass has been certified under section 7 of the Act, the court may

(a) order the addition, deletion or substitution of parties;

(b) order the amendment of the pleadings; and

to facilitate the certification of the subclass and the appointment of a representative plaintiff for each subclass.

Class action plan

7A.07. The plan required by subparagraph 5(1)(e)(ii) of the Act shall contain:

(a) a statement of the issues of fact and law involved in the proceeding;

(b) a statement of any legal difficulties or complications the proceeding may encounter;

(d) a statement of the potential difficulties and complications in resolving individual claims once common issues have been decided;

(e) the method of notifying members of the class or sub-class of the proceeding;

(f) how funds that may result from the proceeding will be able to be distributed;

(g) a statement of the proposed timing of the various stages of the proceeding;

(h) a proposal as to how any counterclaims and third party proceedings are to be dealt with; and

(i) any other relevant matter affecting the management of the proceeding.

Amendment to pleadings

7A.08. After a certification order has been granted, a party may only amend a pleading filed by that party with leave of the court.

Pre-trial conference

7A.09. Notwithstanding Rule 39, a case management judge appointed under this rule shall conduct the pre-trial conference contemplated by Rule 39, whether or not he or she may be the trial judge.

Settlement, discontinuance and abandonment

7A.10. (1) Notwithstanding Rules 8, 19, 39 and 40, where it is proposed to settle, discontinue or abandon a class action, court approval shall be obtained in accordance with section 35 of the Act.

(2) An application to court for approval of a settlement of a class action shall include:

(a) a brief history of the proceeding;

(b) a brief statement of the facts that form the basis of the settlement;

(d) the terms of the settlement and its amount;

(e) a statement of the form of payment of the settlement;

(f) the method of quantifying individual claims and the distribution of the settlement funds to class members;

(g) the total amount of legal fees and disbursements and their impact on the settlement;

(h) details of unresolved claims, if any, including their number and how they are to be resolved;

(i) a plan of action for resolving individual claims;

(j) a statement of any differences in the manner of treatment of class members;

(k) the procedure for disbursing unclaimed funds;

(l) information of related class or representative proceedings in other jurisdictions; and

(m) the form of a notice proposed to be sent to class members.

(3) In considering whether to approve a settlement of a class action, the court

(a) shall consider whether the settlement is fair, reasonable and made in good faith; and

(b) shall not grant its approval merely because the plaintiff representative is unwilling to continue with the action as a result of financial obligations, time restraints or an individual settlement.

(4) Before approving a settlement of a class action, the court may direct that a notice be given to class members, together with information about the proposed settlement as it considers appropriate, and allow them to be heard either orally or in writing.

Representative proceedings

7A.11. This Rule does not apply to a proceeding brought in a representative capacity under rule 7.11, 7.12 or 7.13, unless the court orders that this Rule shall apply on the terms that the court may order.

Commencement

2. These rules come into effect on the day the Class Actions Act comes into force.