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Statutes of Newfoundland and Labrador 2001


Statutes of Newfoundland and Labrador 2001 Chapter C-18.1

CHAPTER C-18.1

AN ACT TO PERMIT AN ACTION BY ONE PERSON ON BEHALF OF A CLASS OF PERSONS

(Assented to December 13, 2001)

Analysis

1. Short title

2. Defined terms

PART I
CERTIFICATION

3. Plaintiff can apply to certify class action

4. Defendant can apply to certify class action

5. When court shall certify class action

6. Certification application

7. Subclass certification

8. Certain matters not bar to certification

9. Contents of certification order

10. Refusal to certify

11. Decertification or amendment where conditions no longer satisfied

PART II
CONDUCT OF CLASS ACTIONS

12. Determination of issues

13. Court may determine conduct of action

14. Court may stay other action

15. Applications

16. Participation of class members

17. Opting out and opting in

18. Discovery

19. Notice of certification

20. Notice of determination of common issues

21. Additional notice may be ordered

22. Court approval of notice

23. Notice given by other party

24. Costs of notice

PART III
ORDERS, AWARDS AND RELATED PROCEDURES

25. Contents of order on common issues

26. Binding judgment on common issues

27. Determination of common issues

28. Individual assessment of liability

29. Aggregate awards of monetary relief

30. Use of statistical evidence

31. Sharing aggregate awards

32. Individual share of aggregate award

33. Distribution

34. Undistributed award

35. Settlement, discontinuance, abandonment and dismissal

36. Appeals

PART IV
COSTS, FEES AND DISBURSEMENTS

37. Costs

38. Agreement respecting fees and disbursements

PART V
GENERAL

39. Limitation periods

40. Rules of Court

41. Application of Act

42. Crown bound

43. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


Short title

1. This Act may be cited as the Class Actions Act.

Defined terms

2. In this Act

(a) "class action" means an action certified as a class action under Part I;

(b) "common issues" means

(i) common but not necessarily identical issues of fact, or

(ii) common but not necessarily identical issues of law that arise;

(c) "court" means the Trial Division;

(d) "defendant" includes a respondent; and

(e) "party" means a representative plaintiff, a defendant and a person that the court adds as a party but does not include, unless the court otherwise orders, a member of a class or subclass.

PART I
CERTIFICATION

Plaintiff can apply to certify class action

3. (1) One member of a class of persons who reside in the province may commence an action in the court on behalf of the members of that class.

(2) The member who commences the action shall apply to a judge of the court within the time period in subsection (3) for an order certifying the action as a class action and appointing the member as the representative plaintiff.

(3) An application under subsection (2) shall be made

(a) within 90 days after

(i) the day on which the defence was served, and

(ii) the day on which the time set in the Rules of the Supreme Court, 1986 for filing the defence expires, if a defence is not served,

whichever is later; or

(b) with leave from a judge of the court.

(4) A judge of the court may certify a person who is not a member of the class as the representative plaintiff if it is necessary to avoid a substantial injustice to the class.

Defendant can apply to certify class action

4. A person who is named as a defendant in more than one action in the court may apply to a judge of the court for an order certifying the actions as a class action and appointing a person to be the representative plaintiff.

When court shall certify class action

5. (1) On an application made under section 3 or 4, the court shall certify an action as a class action where

(a) the pleadings disclose a cause of action;

(b) there is an identifiable class of 2 or more persons;

(c) the claims of the class members raise a common issue, whether or not the common issue is the dominant issue;

(d) a class action is the preferable procedure to resolve the common issues of the class; and

(e) there is a person who

(i) is able to fairly and adequately represent the interests of the class,

(ii) has produced a plan for the action that sets out a workable method of advancing the action on behalf of the class and of notifying class members of the action, and

(iii) does not have, on the common issues, an interest that is in conflict with the interests of the other class members.

(2) In determining whether a class action would be the preferable procedure for the fair and efficient resolution of the common issues, the court may consider all relevant matters including whether

(a) questions of fact or law common to the members of the class predominate over 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 actions;

(c) the class action would involve claims that are or have been the subject of another action;

(d) other means of resolving the claims are less practical or less efficient; and

(e) the administration of the class action would create greater difficulties than those likely to be experienced if relief were sought by other means.

Certification application

6. (1) The court may adjourn an application for certification to permit the parties to amend their materials or pleadings or to permit further evidence to be introduced.

(2) An order certifying an action as a class action is not a determination of the merits of the action.

Subclass certification

7. (1) Notwithstanding section 5, where a class includes a subclass whose members have claims that raise common issues not shared by all the class members so that, in the opinion of the court, the protection of the interests of the subclass members requires that they be separately represented, the court may, in addition to the representative plaintiff for the class, appoint a person to be the representative plaintiff for each subclass who

(a) is able to fairly and adequately represent the interests of the subclass;

(b) has produced a plan for the action that sets out a workable method of advancing the action on behalf of the subclass and of notifying subclass members of the action; and

(c) does not have, on the common issues for the subclass, an interest that is in conflict with the interests of the other subclass members.

(2) A class that is made up of persons resident in the province and persons not resident in the province shall be divided into resident and non-resident subclasses.

Certain matters not bar to certification

8. The court shall not refuse to certify an action as a class action solely for one or more of the following grounds:

(a) the relief claimed includes a claim for damages that would require individual assessment after determination of the common issues;

(b) the relief claimed relates to separate contracts involving different class members;

(c) different remedies are sought for different class members;

(d) the number of class members or the identity of each class member is not determined or may not be determined; or

(e) the class includes a subclass whose members have claims that raise common issues not shared by all class members.

Contents of certification order

9. (1) A certification order shall

(a) describe the class in respect of which the order was made by setting out the class's identifying characteristics;

(b) appoint the representative plaintiff for the class;

(c) state the nature of the claims asserted on behalf of the class;

(d) state the relief sought by the class;

(e) set out the common issues for the class;

(f) state the manner in which and the time within which a class member may opt out of the action;

(g) state the manner in which, and the time within which, a person who is not a resident of the province may opt into the action; and

(h) include other provisions that the court considers appropriate.

(2) Where a class includes a subclass whose members have claims or defences that raise common issues not shared by all the class members, so that, in the opinion of the court, the protection of the interests of the subclass members requires that they may be separately represented, the certification order shall include the same information in relation to the subclass that is required under subsection (1) in relation to the class.

(3) The court may amend a certification order on the application of a party or class member or on its own motion.

Refusal to certify

10. Where the court refuses to certify an action as a class action, the court may permit the action to continue as one or more non-class actions and, for that purpose, the court may

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

(b) order the amendment of the pleadings; and

(c) make another order that it considers appropriate.

Decertification or amendment where conditions no longer satisfied

11. (1) The court may amend a certification order, decertify an action or make another order it considers appropriate where it appears to the court that the conditions in section 5 or subsection 7(1) are not satisfied with respect to a class action.

(2) Where the court makes an order decertifying an action under subsection (1), the court may permit the action to continue as one or more non-class actions and may make an order referred to in section 10 in relation to those actions.

PART II
CONDUCT OF CLASS ACTIONS

Determination of issues

12. (1) In a class action,

(a) common issues for a class shall be determined together;

(b) common issues for a subclass shall be determined together; and

(c) individual issues that require the participation of individual class members shall be determined individually in accordance with sections 27 and 28.

(2) The court may give a common judgment respecting the common issues and separate judgments respecting another issue.

Court may determine conduct of action

13. Notwithstanding section 12, the court may make an order it considers appropriate respecting the conduct of a class action to ensure a fair and expeditious determination and, for that purpose, may impose on one or more of the parties the terms it considers appropriate.

Court may stay other action

14. The court may stay an action related to the class action on terms the court considers appropriate.

Applications

15. (1) The judge who makes a certification order shall hear all applications in the class action before the trial of the common issues.

(2) Where the judge who makes a certification order is unavailable to hear an application in the class action, the chief justice of the court may assign another judge of the court to hear the application.

(3) A judge who makes a certification order or hears applications respecting a class action may preside at the trial of the common issues.

Participation of class members

16. In order to ensure the fair and adequate representation of the interests of the class or a subclass or for another appropriate reason, the court may permit one or more class members to participate in the class action on terms that the court considers appropriate.

Opting out and opting in

17. (1) A member of a class involved in a class action may opt out of the action in the manner and within the time specified in the certification order.

(2) A person who is not a resident of the province may opt in to a class action in the manner and within the time specified in the certification order where that person, if they were resident in the province, would be a member of the class involved in the action.

(3) A person who opts in to a class action under subsection (2) is from that time a member of the class for the purpose of this Act.

(4) A person shall not opt in to a class action under subsection (2) unless the subclass of which the person is to become a member has or shall have, at the time the person becomes a member, a representative plaintiff who satisfies the requirements of paragraphs 7(1)(a), (b) and (c).

(5) Where a subclass is created as a result of persons opting in to a class action under subsection (2), the representative plaintiff for that subclass shall ensure that the certification order for the class action is amended, if necessary, to comply with subsection 9(2).

Discovery

18. (1) A party to a class action has the same rights of discovery as they would have in another action in the court.

(2) After the examination for discovery of a representative plaintiff, a defendant may, with leave of the court, discover other class members.

(3) In deciding whether to grant a defendant leave to discover other class members, the court may consider

(a) the stage of the class action and the issues to be determined at that stage;

(b) the presence of subclasses;

(c) whether the examination for discovery is necessary in view of the defence of the party seeking leave;

(d) the approximate monetary value of the individual claims, if any;

(e) whether discovery would result in oppression or in undue annoyance, burden or expense for the class members sought to be examined; and

(f) another matter the court considers relevant.

(4) A class member is subject to the same sanctions under the Rules of the Supreme Court, 1986 as a party for failure to submit to an examination for discovery.

Notice of certification

19. (1) Notice that an action has been certified as a class action shall be given by the representative plaintiff to the class members in accordance with this section.

(2) The court may dispense with the notice requirement where, having regard to the factors set out in subsection (3), the court considers it appropriate to do so.

(3) The court shall make an order setting out when and by what means notice shall be given under this section and in so doing may consider

(a) the cost of giving notice;

(b) the nature of the relief sought;

(c) the approximate monetary value of the individual claims of the class members;

(d) the number of class members;

(e) the presence of subclasses;

(f) the places of residence of class members; and

(g) another matter that the court considers relevant.

(4) The court may order that notice be given by

(a) personal delivery;

(b) mail;

(c) posting, advertising, or publishing;

(d) individually notifying a sample group within the class; or

(e) other means or combination of means that the court considers appropriate.

(5) The court may order that notice be given to different class members by different means.

(6) Unless the court orders otherwise, a notice given under this section shall

(a) describe the action, including the names and addresses of the representative plaintiffs and the relief sought;

(b) state the manner in which and the time within which a class member may opt out of the action;

(c) state the manner in which and the time within which a person who is not a resident of the province may opt in to the action;

(d) describe any counterclaim or third party action being asserted in the action including the relief sought;

(e) summarize any agreements respecting fees and disbursements

(i) between the representative plaintiff and the representative plaintiffís solicitors, and

(ii) where the recipient of the notice is a member of a subclass, between the representative plaintiff for that subclass and that representativeís solicitors;

(f) describe the possible financial consequences of the action to class members and subclasses;

(g) state that the judgment on the common issues for the class, whether favourable or not, shall bind all class members who do not opt out of the action;

(h) state that the judgment on the common issues for a subclass, whether favourable or not, shall bind all subclass members who do not opt out of the action;

(i) describe the rights, if any, of class members to participate in the action;

(j) give an address to which class members may direct inquiries about the action; and

(k) give other information the court orders.

(7) Unless the court otherwise orders, notice under this section may include a solicitation of contributions from class members to assist in paying solicitorís fees and disbursements or costs incurred by the representative plaintiff.

Notice of determination of common issues

20. (1) Where the court determines common issues for a class or subclass, the class or subclass shall give notice to the members of the class or subclasses under this section.

(2) Subsections 19(3) to (5) apply to a notice given under this section.

(3) A notice given under this section shall

(a) state that common issues have been determined;

(b) identify the common issues that have been determined and explain the determinations made;

(c) if common issues have been determined in favour of a class or subclass,

(i) state that members of the class or subclass may be entitled to individual relief,

(ii) describe the steps that shall be taken to establish an individual claim, and

(iii) state that failure on the part of a member of the class or subclass to take those steps shall result in the member not being entitled to assert an individual claim except with leave of the court;

(d) give an address to which members of the class or subclass may direct inquiries about the action; and

(e) give other information that the court orders.

Additional notice may be ordered

21. (1) The court may order a party to a class action to give notice to the persons that the court considers necessary to protect the interests of any class member or party or to ensure the fair conduct of the class action.

(2) Subsections 19(3) to (5) apply to notice given under this section.

Court approval of notice

22. The court shall approve a notice under this Part before it is given.

Notice given by other party

23. The court may order a party to give a notice required to be given by another party under this Act.

Costs of notice

24. (1) The court may make an order it considers appropriate respecting the costs of a notice under this Part, including an order apportioning costs among parties.

(2) In making an order under subsection (1), the court may have regard to the different interests of a subclass.

PART III
ORDERS, AWARDS AND RELATED PROCEDURES

Contents of order on common issues

25. An order made respecting a judgment on common issues of a class or subclass shall

(a) set out the common issues;

(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.

Binding judgment on common issues

26. (1) A judgment on common issues of a class or subclass binds every member of the class or subclass who has not opted out of the class action, but only to the extent that the judgment determines common issues that

(a) are set out in the certification order;

(b) relate to claims described in the certification order; and

(c) relate to relief sought by the class or subclass as stated in the certification order.

(2) A judgment on common issues of a class or subclass does not bind a party to the class action in a subsequent action between the party and a person who opted out of the class action.

Determination of common issues

27. (1) Where the court determines common issues in favour of a class or subclass and determines that there are issues, other than those that may be determined under section 32, that are applicable only to certain individual members of the class or subclass, the court may

(a) determine the individual issues in further hearings presided over by the judge who determined the common issues or by another judge of the court;

(b) appoint one or more persons including, without limitation, one or more independent experts, to conduct an inquiry into the individual issues under the Rules of the Supreme Court, 1986 and report to the court; or

(c) with the consent of the parties, direct that the individual issues be determined in another manner.

(2) The court may give necessary direction relating to the procedure to be followed in conducting a hearing, inquiry or determination under subsection (1).

(3) In giving direction under subsection (2), the court shall choose the least expensive and most expeditious method of determining the individual issues that is consistent with justice to members of the class or subclass and the parties and, in making that choice, the court may

(a) dispense with a procedural step that it considers unnecessary; and

(b) authorize special procedural steps, including steps relating to examinations for discovery, and special rules, including rules relating to admission of evidence and means of proof, that it considers appropriate.

(4) The court shall set a reasonable time within which individual members of the class or subclass may make claims under this section respecting the individual issues.

(5) A member of the class or subclass who fails to make a claim within the time set under subsection (4) may not later make a claim under this section respecting the issues applicable only to that member except with leave of the court.

(6) The court may grant leave under subsection (5) where it is satisfied that

(a) there are grounds for relief;

(b) the delay was not caused by the fault of the person seeking the relief; and

(c) the defendant would not suffer substantial prejudice if leave were granted.

(7) Unless otherwise ordered by the court making a direction under paragraph (1)(c), a determination of issues made in accordance with paragraph (1)(c) is considered to be an order of the court.

Individual assessment of liability

28. Where, after determining common issues in favour of a class or subclass, the court determines that the defendantís liability to individual class members cannot reasonably be determined without proof by those individual class members, section 27 applies to the determination of the defendantís liability to those class members.

Aggregate awards of monetary relief

29. (1) The court may make an order for an aggregate monetary award respecting all or part of a defendantís liability to class members and may give judgment accordingly if

(a) monetary relief is claimed on behalf of some or all class members;

(b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendantís monetary liability; and

(c) all or part of the defendantís liability to some or all class members can reasonably be determined without proof by individual class members.

(2) Before making an order under subsection (1), the court shall provide the defendant with an opportunity to make submissions to the court in respect of a matter touching on the proposed order, including submissions that

(a) contest the merits or amount of an award under that subsection; and

(b) individual proof of monetary relief is required due to the individual nature of the relief.

Use of statistical evidence

30. (1) For the purpose of determining issues relating to the amount or distribution of an aggregate monetary award under this Act, the court may admit as evidence statistical information that would not otherwise be admissible as evidence, including information derived from sampling, where the information was compiled in accordance with principles that are generally accepted by experts in the field of statistics.

(2) A record of statistical information purporting to be prepared by or published under the authority of an enactment of the Parliament of Canada or the legislature of a province may be admitted as evidence without proof of its authenticity.

(3) Statistical information shall not be admitted as evidence under this section unless the party seeking to introduce the information

(a) has given to an opposite party a copy of the information at least 60 days before that information is to be used as evidence;

(b) has complied with subsections (4) and (5); and

(c) introduces the evidence by an expert who is available for cross-examination on that evidence.

(4) Notice under this section shall specify the source of statistical information sought to be introduced that was

(a) prepared or published under the authority of an enactment of the Parliament of Canada or the legislature of a province;

(b) derived from market quotations, tabulations, lists, directories or other compilations generally used and relied on by members of the public; or

(c) derived from reference material generally used and relied upon by members of an occupational group.

(5) Notice under this section respecting information that does not come under subsection (4) shall

(a) specify the name and qualifications of each person who supervised the preparation of the statistical information sought to be introduced; and

(b) describe documents prepared or used in the course of preparing the statistical information sought to be introduced.

(6) Unless this section provides otherwise, the law and practice respecting evidence tendered by an expert in an action applies to a class action.

(7) Except with respect to information referred to in subsection (4), an opposite party may require the party seeking to introduce statistical information under this section to produce for inspection a document that was prepared or used in the course of preparing the information, unless the document discloses the identity of persons responding to a survey who have not consented in writing to the disclosure.

Sharing aggregate awards

31. (1) Where the court makes an order under section 29, the court may further order that all or part of the aggregate monetary award be applied so that some or all individual class or subclass members share in the award on an average or proportional basis, where

(a) it would be impractical or inefficient to

(i) identify the class or subclass members entitled to share in the award, or

(ii) determine the exact shares that should be allocated to individual class or subclass members; and

(b) failure to make an order under this subsection would deny recovery to a substantial number of class or subclass members.

(2) Where an order is made under subsection (1), a member of the class or subclass in respect of which the order was made may, within the time specified in the order, apply to the court to be excluded from the proposed distribution and to be given the opportunity to prove that memberís claim on an individual basis.

(3) In deciding whether to exclude a class or subclass member from an average distribution, the court may consider

(a) the extent to which the class or subclass memberís individual claim varies from the average for the class or subclass;

(b) the number of class or subclass members seeking to be excluded from an average distribution; and

(c) whether excluding the class or subclass members referred to in paragraph (b) would unreasonably deplete the amount to be distributed on an average basis.

(4) An amount recovered by a class or subclass member who proves that memberís claim on an individual basis shall be deducted from the amount to be distributed on an average basis before the distribution.

Individual share of aggregate award

32. (1) When the court orders that all or part of an aggregate monetary award under subsection 29(1) be divided among individual class or subclass members on an individual basis, the court shall determine whether individual claims need to be made to give effect to the order.

(2) If the court determines under subsection (1) that individual claims need to be made, the court shall specify a procedure to determine the claims.

(3) In specifying a procedure under subsection (2), the court shall

(a) minimize the burden on class or subclass members by authorizing, where appropriate,

(i) the use of standard proof of claim forms,

(ii) the submission of affidavit or other documentary evidence, and

(iii) the auditing of claims on a sampling or other basis; and

(b) set a reasonable time within which individual class or subclass members may make claims under this section.

(4) Class or subclass members who fails to make a claim within the time set under paragraph (3)(b) may not later make a claim under this section except with leave of the court.

(5) Subsection 27(6) applies to a decision whether to grant leave under subsection (4) of this section.

(6) The court may amend a judgment given under subsection 29(1) to give effect to a claim made with leave under subsection (4) of this section where the court considers it appropriate.

Distribution

33. (1) The court may direct the distribution of amounts awarded under this Part in a manner it considers appropriate.

(2) In giving directions under subsection (1), the court may order that

(a) the defendant distribute directly to the class or subclass members the amount of monetary relief to which each class or subclass member is entitled in a manner authorized by the court, including abatement and credit;

(b) the defendant pay into court or some other appropriate depository the total amount of the defendantís liability to the class or subclass members until further order of the court; or

(c) a person other than the defendant distribute directly to each of the class or subclass members, in a manner authorized by the court, the amount of monetary relief to which each class or subclass member is entitled.

(3) In deciding whether to make an order under paragraph (2)(a), the court may consider

(a) whether distribution by the defendant is the most practical way of distributing the award; and

(b) whether the amount of monetary relief to which each class or subclass member is entitled can be determined from the records of the defendant.

(4) The court may stay the whole or part of an execution or distribution for a reasonable period on terms it considers appropriate.

(5) The court may order that an award made under this Part be paid

(a) in a lump sum, as soon as practicable or within a time set by the court; or

(b) in instalments, on terms the court considers appropriate.

(6) The court may

(a) order that the costs of distributing an award under this Part, including the costs of notice respecting the distribution and the fees payable to a person administering the distribution be paid out of the proceeds of the judgment; and

(b) make an order it considers appropriate.

Undistributed award

34. (1) The court may order that all or part of an award under this Part that has not been distributed within a time set by the court be applied in a manner that may be reasonably expected to benefit class or subclass members, even though the order does not provide for monetary relief to individual class or subclass members.

(2) In deciding whether to make an order under subsection (1), the court may consider

(a) whether the distribution would result in unreasonable benefits to persons who are not class or subclass members; and

(b) a matter the court considers relevant.

(3) The court may make an order under subsection (1) whether or not all the class or subclass members can be identified or all their shares can be exactly determined.

(4) The court may make an order under subsection (1) even if the order would benefit

(a) persons who are not class or subclass members; or

(b) persons who may otherwise receive monetary relief as a result of the class action.

(5) Where a part of an award that is to be divided under subsection 32(1) remains unclaimed or otherwise undistributed after a time set by the court, the court may order that the remaining portion of the award

(a) be applied against the cost of the class action;

(b) be paid to the Consolidated Revenue Fund; or

(c) be returned to the party against whom the award was made.

Settlement, discontinuance, abandonment and dismissal

35. (1) A class action may be settled, discontinued or abandoned only with the approval of the court on terms the court considers appropriate.

(2) A settlement may be concluded in relation to the common issues affecting a subclass only with the approval of the court on terms the court considers appropriate.

(3) A settlement under this section is not binding unless approved by the court.

(4) A settlement of a class action or of common issues affecting a subclass that is approved by the court binds every member of the class or subclass who has not opted out of the class action, but only to the extent provided by the court.

(5) In dismissing a class action or in approving a settlement, discontinuance or abandonment, the court may consider whether notice should be given under section 20 and whether the notice should include

(a) an account of the conduct of the action;

(b) a statement of the result of the action; and

(c) a description of a plan for distributing settlement funds.

Appeals

36. (1) A party may appeal, without leave, to the Court of Appeal from

(a) a judgment on common issues; or

(b) an order under sections 29 to 34, except an order that determines individual claims made by class or subclass members.

(2) With leave of a judge of the Court of Appeal, a class or subclass member, a representative plaintiff or a defendant may appeal to that court an order

(a) determining an individual claim made by a class or subclass member; or

(b) dismissing an individual claim for monetary relief made by a class or subclass member.

(3) A party may, with leave of a judge of the Court of Appeal, appeal to the Court of Appeal from

(a) an order certifying or refusing to certify an action as a class action; or

(b) an order decertifying an action.

(4) Where a representative plaintiff does not appeal or seek leave to appeal as permitted by subsection (1) or (3) within the time limit for bringing an appeal under rule 57.03 of the Rules of the Supreme Court, 1986 or if a representative plaintiff abandons an appeal under subsection (1) or (3), a member of the class or subclass for which the representative plaintiff had been appointed may apply to a judge of the Court of Appeal for leave to act as the representative plaintiff for the purpose of subsection (1) or (3) and when granting leave the court may extend the time limit for bringing an appeal or seeking leave to appeal under subsections (1) or (3).

(5) An application under subsection (4) shall be made within 30 days after the expiry of the appeal or leave to appeal period available to the representative plaintiff or by another date that the judge may order.

PART IV
COSTS, FEES AND DISBURSEMENTS

Costs

37. (1) The Trial Division and the Court of Appeal shall not award costs to a party to an application for certification under subsection 3(2) or section 4, to a party to a class action or to a party to an appeal arising from a class action at any stage of the application, action or appeal.

(2) Notwithstanding subsection (1), the Trial Division and the Court of Appeal may award costs to a party in respect of an application for certification or in respect of all or part of a class action or an appeal from a class action where the court considers that

(a) there has been vexatious, frivolous or abusive conduct by a party;

(b) an improper or unnecessary application or other step has been made or taken for the purpose of delay or increasing costs or for another improper purpose; or

(c) there are exceptional circumstances that make it unjust to deprive the successful party of costs.

(3) A court that orders costs under subsection (2) may order that those costs be assessed in a manner that the court considers appropriate.

(4) Class members, other than the person appointed as representative plaintiff for the class, are not liable for costs except with respect to the determination of their own individual claims.

Agreement respecting fees and disbursements

38. (1) An agreement respecting fees and disbursements between a solicitor and a representative plaintiff shall be in writing and shall

(a) state the terms under which fees and disbursements are to be paid;

(b) give an estimate of the expected fee, whether or not that fee is contingent on success in the class action; and

(c) state the method by which payment is to be made, whether by lump sum or otherwise.

(2) An agreement respecting fees and disbursements between a solicitor and a representative plaintiff is not enforceable unless approved by the court, on the application of the solicitor.

(3) An application under subsection (2) may,

(a) unless the court orders otherwise, be brought without notice to the defendants; or

(b) where notice to the defendants is required by the court, be brought on the terms respecting disclosure of the whole or a part of the agreement respecting fees and disbursements that the court may order.

(4) Interest payable on fees under an agreement approved under subsection (2) shall be calculated in the manner set out in the agreement or if not set out,

(a) at the interest rate prescribed for post-judgment interest under the Judgment Interest Act; or

(b) at a rate the court considers appropriate.

(5) Interest payable on disbursements under an agreement approved under subsection (2) shall be calculated in the manner set out in the agreement or if not set out,

(a) at the interest rate prescribed for post-judgment interest under the Judgment Interest Act; or

(b) at a rate the court considers appropriate,

on the balance of disbursements as totalled at the end of each 6 month period following the date of the agreement.

(6) Amounts owing under an enforceable agreement are a first charge on settlement funds or a monetary award.

(7) Where an agreement respecting fees and disbursements is not approved by the court, the court may

(a) determine the amount owing to the solicitor in respect of fees and disbursements;

(b) direct an inquiry, assessment or accounting under the Rules of the Supreme Court, 1986 to determine the amount owing; or

(c) direct that the amount owing be determined in another manner.

PART V
GENERAL

Limitation periods

39. (1) A limitation period that applies to a cause of action asserted in an action

(a) is suspended in favour of a person if another action is commenced and it is reasonable for the person to assume that he or she is a class member for the purposes of that action; and

(b) resumes running against the person when one of paragraphs (2)(a) to (g) applies to the person as though he or she was the member referred to in those paragraphs.

(2) A limitation period that applies to a cause of action asserted in an action that is certified as a class action under this Act is suspended in favour of a class member on the commencement of the action and resumes running against the class member when

(a) the member opts out of the class action;

(b) a ruling by the court has the effect of excluding the class member from the class action or from being considered to have ever been a class member;

(c) an amendment is made to the certification order that has the effect of excluding the member from the class action;

(d) a decertification order is made under section 11;

(e) the class action is dismissed without an adjudication on the merits;

(f) the class action is discontinued or abandoned with the approval of the court; and

(g) the class action is settled with the approval of the court, unless the settlement provides otherwise.

(3) Where there is a right of appeal in respect of an event described in paragraphs (2)(a) to (g), the limitation period resumes running as soon as the time for appeal has expired without an appeal being commenced, or as soon as an appeal has been finally disposed of.

Rules of Court

40. The Rules of the Supreme Court, 1986 apply to class actions to the extent that those rules are not in conflict with this Act.

Application of Act

41. This Act does not apply to

(a) a representative action commenced before this Act comes into force;

(b) an action required by law to be brought in a representative capacity; and

(c) an action that may be brought in a representative capacity under another Act.

Crown bound

42. This Act binds the Crown.

Commencement

43 This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

©Earl G. Tucker, Queen's Printer