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CANADIAN CIVIL PROCEDURE 


By 

Garry D. Watson 
Allan C. Hutchinson 
Robert J. Sharpe 
William A. Bogart 


Chapters 7 £ 8 


F> 


Storage 

KF February, 19 87 

8839 

ZA2 

W37 (For Professor Schiff's class only) 

1986 -- -- — 

ch.7-8 






















LAW LIBRARY 

FEB 2 61987 

FACULTY OF LAW 

UitYEssinr of Torn 




faculty of lav; library 

UNIVERSITY OF TORONTO 


CHAPTER 7' 


RES JUDICATA 


1. Cause of Action Estoppel and Issue Estoppel 


7-1 


2. Persons Affected By Res Judicata 


7-18 



Digitized by the Internet Archive 
in 2019 with funding from 
University of Toronto 


https://archive.org/details/canadiancivilpro00unse_1 


Chapter 8 - Expansion of the Litigation 


TABLE OF CONTENTS 


Page 

Section A. Introduction . 1 

Section B. Addition of Claims and 

Parties by the Plaintiff: Joinder . 8 

1. Introduction . 8 

2. Joinder of Multiple Claims . 9 

a) Permissive Joinder . 9 

b) Compulsory Joinder . 13 

3. Joinder of Multiple Parties . 14 

a) Permissive Joinder . 14 

(i) Multiple Plaintiffs . 14 

(ii) Multiple Defendants . 16 

b) Compulsory Joinder . 28 

Section C. Addition of Claims and Parties by the Defendant . 39 

1. Introduction . 39 

2. Counterclaims . 40 

3. Crossclaims . 53 

4. Third Party Claims . 56 

a) Nature and Purpose . 56 

b) The Mecnanics of Third Party Proceedings . 60 

c) Conduct of the Trial Where 

Third Party Proceedings are Taken . 61 

Section D. Consolidation and Orders 

for the Trial of Actions Together . 67 

Section E. Role of Insurance 

in the Expansion of Litigation . 71 























Section F. Non-Traditional Aspects of Expansion .. 78 

1. Standing . 78 

2. Intervention . 98 

3. Class Actions . 118 










Notes 


Despite Naken there have been a number of class actions which have 
been permitted to proceed by lower courts. The cases have either 
been held to involve claims for relief which do not require 
participation by individual members of the class or Naken has been 
distinguished in some other way. For example, in Ranjoy Sales and 
Leasing Ltd, et al. v. Deloitte, Hoskins & Sells (1984), 31 Man. R. 
(2d) (C.A.) 87, plaintiffs brought a class action on behalf of 
creditors of bankrupt companies claiming the defendants negligently 
prepared audited financial statements the reliance upon which induced 
the plaintiffs to loan money to the bankrupt companies. In allowing 
the class action the Manitoba Court of Appeal commented (93): 








134 - 


The four plain¬ 
tiffs claim damages for themselves and 
all other "investor" creditors of Win¬ 
nipeg Mortgage Exchange Ltd. and its 
wholly owned subsidiary, Winnipeg Mort¬ 
gage Holdings Ltd. (both now bankrupt), 
against the defendant auditors of the 
bankrupt companies. Their cause of ac¬ 
tion is based on their deemed reliance 
on audited financial statements of the 
companies prepared by the defendant for 
the years ended January 31, 1976 to 
1979 inclusive, which they allege were 
negligently inaccurate and misleading. 
They claim as damages the shortfall be¬ 
tween the amount of their investment in 
the companies and the amount recovered 
by the companies' trustee in bank¬ 
ruptcy . 

[27] The investor creditors are known. 
There are 950 of them and they are all 
represented by counsel for the plain¬ 
tiffs. There may be distinctions within 
the class. Some investor creditors may 
have invested their monies prior to the 
preparation of the financial statements 
for the year ended January 31, 1976 

They could not claim deemed reliance oo 
those statements or statements prepared 
in subsequent years. Some investor 
creditors may have actually seen and 
relied on the audited financial state¬ 
ments. They may have a superior cause 
of action based on actual reliance. 

[28] The deficiencies alleged in the 
audited financial statements are not 
the same for each of the four years. It 
is possible that a distinction might 
exist within the class depending on the 
year in which an investor creditor in¬ 
vested his money. 

[29] Now is not the time to speculate 
upon those distinctions, and, in ny 
view, it would be premature to refuse « 
class action because those or other 
distinctions might arise during the 
proceedings. I prefer the approach tak¬ 
en by Dea, J., in Alberta Pork Pro¬ 
ducers (the trial decision). The better 
procedure would be to redefine the 
class to exclude any persons where 
there is evidence, either at trial or 
before, that indicates that such a per¬ 
son may be prejudiced if included in 
the class. 

[30] Here, even more so than in Alberta 
Pork Producers, the fund or common in¬ 
terest, and the participation of each 
class member in it, are capable of sim¬ 
ple determination and computation. 


[31] A final comment on the argument 
that procedural prejudices result to 
the defendant in a class action. Estey, 
J., commented in Naken that the court 
rules do not make discovery, production 
and other pre-trial procedures avail¬ 
able to non-parties or to parties 
against non-parties. The Ontario Law 
Reform Commission Report on Class 
Actions makes a similar statement, that 
"it would seem that the defendant in a 
class action cannot discover any of the 
members of the class. His rights of 
discovery, in other words, are limited 
to discovery of the representative 
piaintiff." 

r . 32] Queen's Bench Rule 288 says: 

”288 A person for whose immediate 

benefit an action is prosecuted or 
defended may, without order, be ex¬ 
amined for discovery." 

It is not apparent whether the corre¬ 
sponding Ontario rule (Rule 333) was 
referred to Estey, J., or considered by 
him. The Ontario Law Reform Commission 
commented that Ontario Rule 333 has 
been interpreted narrowly, and applies 
only where it is proved the plaintiff 
Is a nominal party only, who partici¬ 
pates at the instigation of, or solely 
to benefit, another person from whom 
discovery is sought. I have been unable 
to find a decision commenting upon the 
application of the rule to a class ac¬ 
tion. It seems to me, however, that the 
plain meeting of the words are capable 
of a more liberal construction. The 
rule may have application to class ac¬ 
tions in which the members of the class 
have separate and individual claims. It 
•ay not apply where the relief sought 
is equitable and general, as in a rate¬ 
payer's action challenging a municipal 
bylaw which affects the whole commun¬ 
ity- 

133 ] I am not satisfied that discovery 
and other pre-trial procedures going 
beyond the named plaintiffs would not 
be available to a defendant in a class 
action, with a little ingenuity on the 
part of counsel and the occasional in¬ 
tervention of the court. 


- 135 - 


2. Quebec is the only jurisdiction in Canada which has engaged in 
legislative reform of class actions: see L.R.Q., C.R. 21 modifee par 
L.Q. 1982, c. 37, art. 20 a 25. For commentary on the act and how it 
has been interpreted see: Lauzon, "Le Recours Collectif Quebecois: 
Description et Bilan" (1984), 9 C.B.L.J. 324. 

3. The Ontario Law Reform Commission in its three volume Report on Class 
Actions (1982) made lengthy and detailed recommendations for the 
liberalization of class actions. For an extensive review of the 
report see: DuVal (1983), 3 Windsor Yearbook of Access to Justice 
411. 

4. It is possible for defendants to be sued as a class: see, for 
example, Dimisio et al. v. Allain et al. (1985), 50 C.P.C. (Ont. 
H.C.). However, far fewer cases have involved attempts to bring 
defendant class actions as opposed to plaintiff class actions and 
there has been much more pressure to reform plaintiff than defendant 
class actions. Why? 

The next two excerpts differ starkly in their view of class actions. 
What is it about the nature of class actions that Glenn sees as 
inimical to the function of courts? What makes Bogart believe courts 
and their procedures are so malleable that they can manage class 
actions and that, in any event, courts ought to be entertaining 
issues which class actions will present? 






- 136 


Glenn, "Class Actions in Ontario and Quebec" (1984), 62 Can. Bar Review 247 


The civil adjudicative process, whether of the adversarial or of the 
investigative tradition. 1 " 1 is profoundly marked by liberal political philoso¬ 
phy. The individual is free to sue or not sue, to defend or not defend. If 
litigation is decided upon, its terms are a matter of party choice and courts 
will respect this choice. Both sides are free to make their case, and courts 
will follow them through a wide range of procedural devices chosen to 
allow full presentation of fact and law. It is a process sympathetic to detail, 
profoundly conscious of principles of natural fairness, and tolerant of 
uncompromising struggle. Because of all this, and because of the ensuing 
expense, it seeks both to bestow this attention where it is most needed, and 
to ensure that it is not wasted. Only true adversaries are thus blessed with 
standing, aggregation of claims is excluded for purposes of establishing 
jurisdiction, resolved disputes are declared moot, and a decision rendered 
becomes permanent law for those (though only those) having sought it. If 
each of these ingredients is inevitably elastic and subject to interpretation, 
the entire process remains faithful to its dominant ethic. The judiciary 
(particularly the elitist one of the common law tradition) is thus not a force 
of police, and the entire corpus of civil or private law is revealed, through 
the nature of its enforcement mechanism, as an optional device for acute 
conflict resolution. The so-called ‘publicization’ of private law, through 
broadening of rules of standing, reliance on general clauses of Bills of 
Rights, or efforts to engage in class litigation, may remain a marginal 
phenomenon absent fundamental changes in institutions. It is perhaps more 
appropriate to speak of the ‘privatization’ or dilution of the concept of 
public law. 102 


coo 


- 137 - 


• ® • 

To say that class actions involve the judiciary in a legislative function 
is not. however, in the view of many, to condemn them. Increased judicial 
power is today frequently defended as inevitable in the conditions of 
western, liberal society. This synchronic concept of ’‘modernity" would 
see the judiciary expanding in influence in response to the growth of 
measures of mass social control. The class action becomes simply a useful 
device in the fulfillment of this contemporary judicial role. 14 -' A more 
universalist justification may be found in historic doctrines of judicial 
law-making, particularly those of common law countries. For if class 
action judgments are a form of law-making, in what manner can they be 
distinguished from binding precedent, long accepted as a necessary form of 
judicial commitment in the absence of legislative guidance? Yet neither of 
these broad possible justifications for class action development can be 
taken as estabished, and there is much to indicate they are mistaken. 

Do modem conditions force a new role upon our judges? Much of the 
judicial system itself would suggest a negative response, since it remains in 
general outline as hostile as ever before to the pursuit of even individual 
claims. An elitist judiciary, small in number, functioning in an expensive 
and time-consuming court system with limited rights of appellate review, is 
not an obvious challenger to established bureaucracies. To the extent there 
has been no significant increase in judicial resources it may be presumed 
that society has not renounced the ideal of limited, and therefore more 
impartial, judicial activity. Access to justice, in the measure that it uses up 
this valuable commodity of impartial decisions, is therefore actively dis¬ 
couraged by existing judicial structures. Yet. it is said, this lag of current 
institutions must be corrected and is in itself no guide to a correct model. 
Inertia must not be confused with wisdom. Not only must courts be 
adequately staffed to meet increasing caseloads, they must widen the scope 
of judicial enquiry and be more receptive to re-allocation of power within 

the state. One of the recurring justifications for class actions is that ot 
assisting less powerful elements of society. Improved access to justice, 
concludes the Ontario Law Reform Commission, a good thing in itself, will 
result in desirable behaviour modifications , 144 and the class action is 
therefore justifiable as a means to those ends. 

The unanswered question in the debate thus far is why increased 
access to justice and any possible behaviour modification justifies such a 
significant distortion of the judicial function. Even if one accepts the need 
for increased access to justice and behaviour modification, as well as the 
potential of class actions to effect them , 145 why do these arguable benefits 
outweigh the hazards of inviting the judiciary into the legislative arena? 
There is no discussion in the report of the Ontario Law Reform Commis¬ 
sion of this question, in spite of its view that class actions will result in 
behaviour modification. Are there no institutional hazards for the ludiciary 
in openly legislating changes in the structure of power in society? Will a 
judiciary which has engaged in class legislation for a half-century have 
impaired its adjudicative authority? * > e _ 



- 138 - 


Bogart, "Naken, The Supreme Court and What Are Our Courts For?" (1984), 9 
C.B.L.J. 280, 304-308 


If one accepts the basic proposition that we need a mechanism 
to challenge the actions of large entities, then it follows that we 
must be prepared to accept procedural changes that will allow 
such challenges to be made effectively. Unless one is prepared to 
create a totally new adjudicative body or adopt some other far- 
ranging solution, it seems to follow that the court's role will be 
altered as it begins to deal with this new form of litigation. 

In contrast, to reject the need for effective challenge to the 
activities of large entities would, it seems to me, only breed 
confusion and frustration in a citizenry which already feels 
hopelessly at odds with much of the workings of society during 
the last part of the 20th century. 102 Even if such frustration is not 
the stuff of revolutions, at a minimum the widely held perception 
of our courts as anachronistic and unresponsive may spread. 10 ’ 
More damaging may be the belief that the rules of litigation really 
do favour institutions and are less concerned with the 
enforcement of rights by individuals. 104 

To me the only realistic alternative is to develop new rules and 
standards which will allow this new form of litigation to proceed. 
In this Estey J.’s judgment in Naken is disappointing because it 
displays so little interest in the problems and issues raised by 
cases like Naken. Such an attitude does little to deflect the 
trenchant criticisms about the Supreme Court's lack of capacity 
or willingness to engage in far-ranging analysis of difficult 
problems. 105 Nevertheless, one clear effect of the Supreme 
Court’s decision in Naken is to signal the Legislatures that 
change, if it is to come, must come through them. 

In attempting to define the role of the court in class action 
litigation the recommendations of the Ontario Law Reform 
Commission in its Report on Class Actions offer a significant bash 
for discussion. The commission has attempted to steer a middle 
Course between, on the one hand, a passive court that does little 
to control litigation and, on the other hand, an active couri 
which, in perception at least, dominates it. 

The key to its recommendations is to give the court a more 
developed role but one which is defined bv specific guidelines 
For example, a critical stage of the class action is the certification 
hearing during which the court decides whether or not the action 
should proceed as a class action. In Chapter 10 of the report, the 
commission makes recommendations about the certification 
hearing, the timing of it, the means by which evidence is placed 
before the court in the hearing and the powers of the court when 
it hears the certification application. 106 In addition, the court 
would be empowered to allow or refuse certification and to make 
all amendments to the proceedings required by its order. 107 The 
court could also amend a certification order and, subsequently, 
set the order aside if satisfied that the action was no longer one 
which should be a class action. IIW 


- 139 - 


In order to control the class action during and from certification 
to trial of the common questions general management powers are 
recommended for the court. These powers most closely resemble 
some of the pre-trial powers exercised by ‘‘activist” judges in the 
United States. While there are many differences, the vital one is 
that in the commission's model one judge would take all pre-trial 
motions and interlocutory proceedings, including the certification 
hearing, but another ]udge would preside at the trial of the 
common questions. The trial judge would also supervise any 
proceedings after the hearing of the common questions, for 
example, if the class were successful but hearings were necessary 
to determine individual questions." w Thus the function of “man¬ 
aging” the litigation during the pre-trial phase and actually 
adjudicating the merits of the action at trial would be separated. 
The lack of separation of these functions is a main criticism of 
those concerned with the activist stance of courts in the United 
States. 11 " Central to this potential for greater involvement by the 
court is a provision which states:" 1 

15. The court, upon the application of a party or upon its own motion, 
may make any order under this Act and all appropriate orders determining 
the course of the action for the purpose of ensuring the fair and expeditious 
determination thereof, including an order to prevent undue repetition or 
complication in the action, and the court may impose such terms and condi¬ 
tions upon the parties as it considers proper. 

In making the recommendation concerning broader 
management powers the commission recognized the dual 
rationale of the need to protect the interest of absentees 112 and to 
deal with the complexity inherent in many class actions. 11 - 1 
However, the commission w'as careful to point out that its guiding 
philosophy was not to depart from the adversarial model of litiga¬ 
tion. It simply wished to equip the court with sufficient powers to 
allow it to deal properly with this new' form of expanded and 
complex litigation while, at the same time, permitting as much 
independence and freedom to the parties as possible." 4 

• © • 

bor those who see the potential of class actions there is clearly 
an agenda of issues to be discussed concerning their structure so 
that their intended purposes are achieved and abuses avoided. 
Issues such as design of a certification mechanism, whether class 
actions should play a deterrence function, calculation and distri¬ 
bution of monetary claims, the role of class members, and costs, 
are only a selection of issues which merit reflection. For me the 
effect of class actions upon the court and how we should design 
the mechanism both to allow the court to adjust to this new form 
of litigation and to be sufficiently innovative in managing it is the 
most fascinating aspect. To what extent will we need to become 
Dart of the debate about the appropriate function of courts in the 
new litigation which now seems so much a part of the American 
legal culture and how will we solve the issue to which this debate 
gives rise?" 5 


- 140 - 


Notwithstanding the complexities and controversies 
surrounding them, I believe those who reject class actions will 
have a hard road. If the basis of rejection is the lack of need for 
such a procedure, 1 think they will have a difficult time demon¬ 
strating that there are not widespread harms that require a means 
of redress. If they acknowledge these harms but simply object to 
class actions as the means of redress they will then have to suggest 
a suitable and adequate alternative. Thinking about such alterna¬ 
tives will be a fascinating exercise and we should not hesitate to 
do so. However, in the end I believe it is the class action — the ad 
hoc collectivity which organizes its members for a specific 
purpose and limited time — which will best answer the needs of 
group action at the end of the 20th centurv 


The following are some sections of the proposed Act recommended by 
the Ontario Law Reform Commission in its 1982 Report on Class Actions , 
referred to earlier, which has not as yet been enacted. Try to identify 
the policy behind these sections. Are they more responsive to Bogart's 
view, above, of this form of litigation or of Glenn's, above. Would they 
answer the issues raised by the Supreme Court in Naken, above, as part of 
its reasons for not allowing the class action in that case? 


laicrpruioca 

1. In this Act, 

(r) “certify” means to permit an action to be maintained as 
a class action. but does not mean to approve the merits ^ 
of the action except to the cxient provided by clause 

3(3Xa); 

(.«,) “class action” means an action certified as a class action 
by an order made under this Act; 

(C ) “court” means the Supreme Court or a county or district 
court; 

id) “discovery” means examination for discovery or pro¬ 
duction and inspection of documents under the rules of 
court, and “to discover” has a corresponding meaning. 


COMMENCEMENT OF ACTION 


2. —(]) One or more members of a class of persons may 
commence an action on behalf of the members of the class. 


Commencrrrxnt 
N «£tx>o 




141 - 


(2) A person who commences an action under subsection (1) 
shall be known as the representative plaintiff. 


Rrprrxnunvt 

plumitf 


(3) The representative plaintiff shall give notice in writing to 
the Attorney General of the commencement of the action. 


Nonce to 
Atiomev 
General 


CERTIFICATION 


3.—(1) After the commencement of an action under section 2, Appiuriooo tor 
the representative plaintiff may apply to the court for an order Sdf,** 110 * 
certifying the action as a class action. 


(2) An application under subsection (1) shall be commenced T.rwio. 
within 90 days from the day upon which the defendant filed his 
appearance or from 'he defendant's default in so doing 


(3) Subject to section 6. the court shall certify the action as a 
class action if the court finds that. 


Prrrrquiulti lo 

<xnitic*(iOn 

order 


( a ) the action is brought in good faith and there is a 
reasonable possibility that material questions of fact 
and law common to the class will be resolved at trial in 
favour of the class; 

(b) the class is numerous; 

(c) there are questions of fact or law common to the class; 

(d) a class action would be superior to other available 
methods for the fair and efficient reso ution of the 
controversy; and 

(e) th: representative plaintiff would fairly aid adequately 
piotect the interests of the class. 

+ 

4. j n determining whether a class action would be superior to 
other available methods for the fair and efficient resolution of 
the controversy, the court shall consider ail relevant matters 
including. 

(a) whether questions of fact or law common to the mem¬ 
bers of the class predominate over any questions affect¬ 
ing only individual members; 

(b) whether a significant number of members of the ciass 
have a valid interest in individually controlling the 
prosecution of separate actions. 

(c) whether the class action would involve claims that are or 
have been the subject of any other proceedings; 

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


142 - 


Adcquaes of 
representation 


Costs and 
henefnv of class 
action 


Attorney 
GeneraJ as 
representative 
pUiouff 


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

5. In determining whether the representative plaintiff would 
fairly and adequately protect the interests of the class, the court 
may consider whether provision has been made for competent 
legal representation that is adequate for the protection of the 
interests of the class. 


6.—(1) Where the court finds that the conditions set out in 
subsection 3(3) have been satisfied, it may nevertheless refuse to 
certify the action as a class action if. in the opinion of the court, 
the adverse effects of the proceedings upon the c ass. the courts 
or the public would outweigh the benefits to the class, the courts 
or the public that might be secured if the action were certified. 


(2) The onus of establishing that an action should not be 
certified as a class action b> reason of subsection (l) is upon the 
person so contending 

7. The court shall not refuse to certify an action as a class 
action on the ground only that the relief claimed, 

(a) includes a claim for damages that would require individ 
ual assessment in subsequent proceedings involving the 
defendant: or 

(b) arises out of or relates to separate contracts betwee.i 
members of ihe class and the defendant. 

® % • 

14 . At any time in an action under this Act, if it is in the 
public interest that the Attorney General act as representative 
plaintiff and either the representative plaintiff does not or will 
not fairly and adequately protect the interests of the class or the 
representative plaintiff consents. 

(a) the court may invite the Attorney General to be the 
representative plaintiff; or 

(b) the Attorney General may apply to the court for permis¬ 
sion to be the representative plaintiff. 

» • <> 

NOTICE 

16.—(1) After certifying an action as a class action, the court 
may order that notice be given to members of the class informing 
them of the class action. 

(2) In deciding whether to ordei notice under this section, the 
court shall consider all relevant matters including. 


Onu' 


Order not loht 
refund 


None* of cltu 
•coon 


Cnieni 


(a) the cost of giving notice; 


143 - 


(4) the nature of the relief sought; 

(c) whether the court has determined that some or all of the 
members of the class may exclude themselves from the 
class action; 

{d) the size of the claims of the members of the class; and 

(e) the total amount of monetary relief claimed in the 
action. 

(3) Where the court orders notice under this section, notice Method* 
shall be given by advertisement, publication, posting or distnbu- 

lion, unless the court, having regard to the matters set out in 
subsection (2), orders notice by some other method, including 
individual notice to a sample portion of the class, and the court 
may order notice to be given in different ways to various 
members of the class. 

(4) Notice under this section shall include, Comfnu * 

004 ice 

(a) a brief description of the class action including the relief 
claimed; 

(4) a brief description of the class; 

(r) a statement that a member of the class vcill be bound by 
anyjudgment on the questions common to the class; 

(d) if the court has determined that individual members 
may exclude themselves from the class action, a state¬ 
ment to that effect, indicating how and by what date the 
members may exclude themselves and the consequences 
to the members if they exclude themselves or fail to do 
so; 

(e) a statement that a member of the class may apply to 
intervene in the class ac lion; 

(/) the name and address of the representative plaintiff to 
whicii further inquiries may be directed; and 

(g) any other information that the court considers proper. 

* ♦ • 

EXCLUSION 

20.—(1) The court shall determine whether some or all of the EjiIuxc* 
members of the class should be permitted to exclude themselves 
from a class action. 

(2) In determining whether members of the class should be Cn,tn » 
permitted to exclude themselves from the class action, the court 
shall consider all relevant matters including. 

(a) whether as a practical matter members of the class who 
exclude themselves would be affected by thejudgment; 

(4) whether the claims of the members of the class are so 
substantial as lojusnfy independent litigation; 



- 144 - 



(r) whether there is a likelihood that a significant number of 
members of the class would desire to exclude them¬ 
selves; 

(d) the cost of notice necessary to inform members of the 
class of the class action and of their nght to exclude 
themselves; and 

Nolict >/ 

(ftduucn 

(e) the desirability of achievingjudicial economy, consistent 
decisions, and a broad binding effect of thejudgment on 
the questions common to the class. 

(3) Where the court has determined that some or all of the 
members of the class may exclude themselves, they may do so by 
informing the court in writing by a cate specified by the court of 
their desire to be so excluded. 

EjCluSlOfi 4A<d 

jud|ro<nt 

(4) The names of persons who ha it excluded themselves from 
the class action shall be set out in anyjudgment on the questions 
common to the class or in any settlement of the action under this 
Act. 

Lffov • of 
txdui*on 

(5) A person who has excluded himself from the class action 
is no longer a member of the class for any purpose and is not 
entitled to any relief awarded in the class action. 

Ri|hi> of 

d»KX)Vff\ ind 

caa/nio^uon 

b<forr 

dr tcrmi nation 
of common 
qorxioru 

DISCOVERY 

21. Before the questions common to the class are decided. 

(o) the representative plaintiff and the defendant have the 
same rights of discovery against each other that are 
available in ordinary actions; 

( b ) after discovery of the representative plaintiff, the de¬ 
fendant may apply to the court to discover other mem¬ 
bers of the class; 

(r) in deciding whether to grant leave to discover other 
members of the class, the court shall consider all rele¬ 
vant matters including. 

(i) the stage of the class proceedings and the issues to 
be determined at that stage, 

(li) whether discovery is necessary for the purpose of 
the defence on the issues, 

(tii) the approximate monetary value of the individual 
claims, where monetary relief is claimed, and 

(iv) whether discovery will result in oppression, undue 
annoyance, burden or expense for the members of 
the class; 

(d) a member of the class is subject to the same sanctions 
under the rules of court as any party in an action for 
failure to submit to discovery, except that the court shall 
not exclude a member of the class from recovery unless 
it determines that no other sanction is adequate to 
protect the interest of the defendant; and 


- 145 - 


L>ubli»hi*f 

daiinv 


Am3|i 

dixnhunoA 


C\ prey 
dikinhuuon 


(e) the defendant shall not by subpoena require a member 
of the class other than the representative plaintiff to 
attend to be examined for the purpose of using his 
evidence upon any motion or application except by 
leave of the court, and in deciding whether to grant such 
leave, clauses (/>). (c) and (4) apply muiatis mutandis. 


MONETARY RELIEF 

22. In a class action where, A«rT*ut 

atscsuncni 

(a) monetary relief is claimed on behalf of the members of 
the class; 

(4) no questions of fact or law other than the assessment of 
monetary relief remain to be determined in order to 
establish the liability of the defendant to some or all 
members of the class; and 

(c) the total amount of the defendant's liability, or part 
thereof, to some or all of the members of the class can be 
assessed without proof by the individual members of the 
class with the same degree of accuracy as in an ordinary 
action, 

the court shall determine the aggregate amount of the defend¬ 
ant's liability and givejudgment accordingly. 

* • ♦ 

25. (2) For the purpose of establishing the claims of members of 
the class, the court shall authorize such procedures as will 
minimize the burden imposed upon the class members, includ¬ 
ing the use of standardized proof of claim forms designed to 
elicit the information necessary to establish and verify such 
claims, the reception o' affidavit, documentary, or other written 
evidence, and the auditing of claims upon a sampling or other 
basis 


26. -(l) Where the court gives judgment under section 22 but 
the circumstances render impracticable the determination of the 
members of the class w ho are entitled to share in the judgment or 
the exact share of the judgment that should be allocated to 
particular class members, the court may order that the members 
of the class are entitled to share in such judgment on an average 
or proportional basis if it is satisfied that failure to so order 
would deny recovery to a substantial number of class members. 

27. —( 1 ) The court may order that any money that has not 
been distributed under section 23, 24. 25 or 26 be applied in a 
manner that may reasonably be expected to benefit some or all 
of the members of the class, and for this purpose the court may 
order that any such money be returned to the defendant upon 
such terms and conditions respecting its use as the court consid¬ 
ers proper. 


146 - 


Idem 


Judgment on 

indtv idual 
qvxTxlM'AN 

Binding effect 
o* judgment on 
ccmmofl 
quest tom 


idem 


Comenu of 
judgment on 
common 
que -.(ions 


(2) The fact that an order made under this section may 
benefit persons who are not members of the class or who have 
already received monetary relief under section 23. 24, 25 or 26 is 
not a bar to the making of such an order if the court is satisfied 
that a reasonable number of members of the class who would not 
otherwise receive monetary relief will benefit thereby. 

2S. The court may order that any money that has not been 
distributed under section 23. 24. 25, 26 or 27 be forfeited to the 
Crown or returned unconditionally to the defendant as the court 
considers proper. ^ ^ 

31.— ( 1 ) Where the court determines the common questions in 
favour of the class, and subsequent proceedings that require 
participation by members of the class and the defendant are 
necessary to determine individual questions, the court may, 

(a) conduct such proceedings alone or with other judges of 
the court: 

(b) appoint one or more persons to conduct such proceed¬ 
ings by way of inquiry and report; or 

(r) on consent of the defendant, and of the representative 
plaintiff on behalf of the class, order such proceedings 
and give directions for the conduct thereof. 

(2) The court may give such directions as may be necessary 
for the conduct of proceedings under clause (l)(a) or (b). 
including any directions to achieve conformity of proceedings, 
and in giving such directions the court shall order the simplest, 
least expensive and most expeditious method of determining the 
issues that is consistent with justice to the members of the class, 
the defendant and the representative plaintiff, including dis¬ 
pensing with any procedure that it considers unnecessary and 
directing special procedures regarding such matters as discovery, 
admission of evidence and means of proof. 

(3) The person who has conducted proceedings under clause 
(1X6) shall record his findings in : report which is not effective 
until confirmed by the court. 


(4) The determination of any individual questions under this 
section constitutes ajudgment. 

• * * 

34.-(1) Judgment on the questions common to the class is not 
binding upon persons who have excluded themselves from the 
class action or upon the defendant in any subsequent proceeding 
brought by a person who has excluded himself. 

(2) Judgment on the questions common to the class binds 
every member of the class who has not excluded himself from the 
class action to the extent only that the judgment determines the 
questions common to the class that are defined in the order 
certifying the action as a class action and that relate to the claim 
described and the relief specified in the order. 

(3) A judgment on the questions common to the class shall, 

(a) name or describe the members of the class who are 
bound by thejudgment; 


Forfeiture to 
Cro»n or 
return to 
defendant 


IndJvidu&J 

proceedings 


Directions 


Confirmation 
of report 


147 - 


(b) describe the nature of the claim made on behalf of the 
members of the class and specify the relief awarded, and 

(c) define the questions of fact or law common to the class. 

» ♦ # 

SETTLEMENT ETC 

36.-(l) An action commenced under this Act shall not be 
settled, discontinued or dismissed for want of prosecution 
without the approval of the court and upon such terms and 
conditions, including notice or otherwise, as the court considers 
proper. 

(2) Unless the court orders otherwise, the cost of any notice c«ioinoo« 
ordered under this section may be determined by agreement of 
the parties 

* 0 9 

COSTS AND FEES 


41.—(1) Notwithstanding section 80 of the Judicature Act. but 
subject to section 46, costs shall not be awarded to any party to 
an action under this Act at any stage of the proceedings, 
including any appeal, except, 

{a) on an application for an order certifying the action as a 
class action, where the court is of the opinion that it 
would be unjust to deprive the successful party of costs, 

(b) in the event of \exatious, frivolous or abusive conduct 
on the part of any party; or 


(<•) on an interlocutory motion. 

(2) Subject to section 46. security for costs shall not be s»oini\for 
required in an action commenced under this Act. 

(3) Subject to section 46, the members of the class, other than ciii»inrmtxr* 

the representative plaintiff, are not liable for costs “7‘‘* hlf fof 


42.-(1) Notwithstanding section 30 of the Solicitors Act and 
An Act respecting Champerty . a solicitor may make an agreement 
in writing with the representative plaintiff regarding payment 
for fees and disbursements in respect of an action commenced 
under this Act stipulating for payment only in the event of 
success in the action. 

♦ 9 * 

50. An action under this Act shall not be tried by a judge with Nojury 
ajury. 


Apetmenb 
n-juding 
navmcnt lot 
fir* and 
<J'*buriemem* 
c SO I WO 
4Q X 

I. SO 1807 
. 327 


51.—(1) In an action under this Act, the same judge shall Pll " llR *J ud « t 
preside at all motions and interlocutory proceedings before the 
trial of the questions common to the class and, subject to section 
31 and unless the parties and the judge otherwise agree, another 


judge shall preside at the trial of the questions common to the 
ciass and thereafter. 

wherejud|f (2) If. at any time in an action under this Act, the presiding 

towlnuT judge is unable for any reason to continue, another judge shall 

be designated in accordance with the practice of the court.