Legislative Assembly of New Brunswick
Status of Legislation - First Reading Bill
Home | Français

Class Proceedings Act

Legislature :
55
Session :
3
Bill No. :
50
Member :
Hon. Green
First Reading :
2006-4-25
Second Reading :
2006-4-26
Committee of the Whole :
Amended :
Third Reading :
2006-6-8
Royal Assent :
2006-6-22
Download PDF :
Bill 50

Text of Bill :
Chapter Outline



PART 1

INTERPRETATION AND APPLICATION

Definitions......................................................................................................................................... 1

certification order — ordonnance de certification

class proceeding — recours collectif

common issues — questions communes

court — cour

decertification order — ordonnance annulant la certification

defendant — défendeur

party — partie

plaintiff — demandeur

representative plaintiff — représentant demandeur

settlement class — groupe faisant l'objet d'un règlement amiable

Application of Act............................................................................................................................. 2

PART 2

CERTIFICATION

Motion by plaintiff for certification of proceeding....................................................................... 3

Motion by defendant for certification of proceeding.................................................................... 4

Settlement class................................................................................................................................. 5

Certification of class proceeding..................................................................................................... 6

Adjournment of certification motion and effect of certification................................................. 7

Subclasses.......................................................................................................................................... 8

Certain matters not bar to certification........................................................................................... 9

Contents of certification order...................................................................................................... 10

Refusal to certify............................................................................................................................. 11

If conditions for certification not satisfied after certification................................................... 12

PART 3

CONDUCT OF CLASS PROCEEDINGS

Division A

Role of Court

Stages of class proceedings............................................................................................................ 13

Court may determine conduct of class proceeding...................................................................... 14

Court may stay any other proceeding............................................................................................ 15

Motions............................................................................................................................................ 16

Division B

Participation of Class Members

Participation of class members...................................................................................................... 17

Opting out and opting in.................................................................................................................. 18

Discovery......................................................................................................................................... 19

Examination of class members as witnesses................................................................................ 20

Division C

Notices

Notice of certification.................................................................................................................... 21

Notice of determination of common issues................................................................................. 22

Notice to protect interests of affected persons........................................................................... 23

Approval of notice by the court...................................................................................................... 24

Giving of notice by another party................................................................................................... 25

Costs of notice................................................................................................................................ 26

PART 4

ORDERS, AWARDS AND RELATED PROCEDURES

Division A

Order on Common Issues and Individual Issues

Contents of order on common issues............................................................................................ 27

Judgment on common issues is binding........................................................................................ 28

Determination of issues affecting certain individuals................................................................. 29

Individual assessment of liability................................................................................................... 30

Division B

Aggregate Awards

Aggregate monetary awards............................................................................................................ 31

Statistical evidence may be used.................................................................................................... 32

Average or proportional share of aggregate awards..................................................................... 33

Individual share of aggregate award............................................................................................... 34

Distribution...................................................................................................................................... 35

Undistributed award......................................................................................................................... 36

Division C

Termination of Proceedings and Appeals

Settlement, discontinuance and dismissal..................................................................................... 37

Appeals............................................................................................................................................. 38

PART 5

COSTS, FEES AND DISBURSEMENTS

Costs................................................................................................................................................. 39

Agreements respecting fees and disbursements........................................................................... 40

PART 6

GENERAL

Limitation periods........................................................................................................................... 41

Rules of Court................................................................................................................................. 42

COMMENCEMENT

Commencement............................................................................................................................... 43





Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:



PART 1

INTERPRETATION AND APPLICATION

Definitions

1                           The following definitions apply in this Act.



"certification order" means an order certifying a proceeding as a class proceeding. (ordonnance de certification)



"class proceeding" means a proceeding under this Act, even if a motion for certification of the proceeding as a class proceeding has not yet been determined by the court. (recours collectif)



"common issues" means



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



(b)               common but not necessarily identical issues of law that arise from common but not necessarily identical facts. (questions communes)



"court" means The Court of Queen's Bench of New Brunswick, and includes any judge of that court. (cour)



"decertification order" means an order decertifying a proceeding as a class proceeding. (ordonnance annulant la certification)



"defendant" includes a respondent. (défendeur)



"party" means a representative plaintiff, a defendant or a person that the court adds as a party but does not include individual class or subclass members. (partie)



"plaintiff" includes an applicant. (demandeur)



"representative plaintiff" means a person who is appointed under this Act as the representative plaintiff for a class or subclass in respect of a class proceeding, and, where the context requires, includes a person who is seeking to be appointed as a representative plaintiff. (représentant demandeur)



"settlement class" means those persons who constitute a settlement class under section 5. (groupe faisant l'objet d'un règlement amiable)



Application of Act

2(1)                   This Act binds the Crown.



2(2)                   Subject to subsection (3), this Act does not apply to



(a)               a proceeding that may be brought in a representative capacity under another Act,



(b)               a proceeding required by law to be brought in a representative capacity, and



(c)               a proceeding brought in a representative capacity that was commenced before the commencement of this section.



2(3)                   If a proceeding is commenced under Rule 14 of the Rules of Court before the commencement of this section, the court may, on the motion of a party to the proceeding, order that the proceeding be continued under this Act, subject to the terms or conditions the court considers appropriate.



PART 2

CERTIFICATION

Motion by plaintiff for certification of proceeding

3(1)                   One member of a class of persons who are resident in New Brunswick may commence a proceeding in the court on behalf of the members of that class.



3(2)                   In a proceeding referred to in subsection (1), the originating process shall indicate that the proceeding is brought under this Act.



3(3)                   The person who commences a proceeding under subsection (1) shall make a motion to the court for an order certifying the proceeding as a class proceeding and, subject to subsection (5), appointing the person as representative plaintiff for the class.



3(4)                   A motion under subsection (3) shall be made



(a)               in the case of a proceeding commenced by Notice of Action, within 90 days after the later of



(i)         the date on which the Statement of Defence was served or the date on which the time prescribed by the Rules of Court for service of the Statement of Defence expires without its being served, and



(ii)       the date a Reply was served or the date on which the time prescribed by the Rules of Court for service of a Reply expires without its being served,



(b)               in the case of a proceeding commenced by Notice of Application, within 90 days after the date on which, if the Notice of Application were a Statement of Claim, the time prescribed by the Rules of Court for service of the Statement of Defence would expire, or



(c)               in either of the cases referred to in paragraph (a) or (b), at any other time with leave of the court.



3(5)                   The court may appoint a person who is not a member of the class as the representative plaintiff for the class only if, in the opinion of the court, it is necessary to do so in order to avoid a substantial injustice to the class.



Motion by defendant for certification of proceeding

4                           A defendant in 2 or more proceedings may, at any stage of one of the proceedings, make a motion to the court for an order certifying some or all of the proceedings as a class proceeding and appointing a representative plaintiff for the class that will be involved in the class proceeding.



Settlement class

5                           If as a condition of settlement between a plaintiff and a defendant certification of a proceeding as a class proceeding is being sought in order that the settlement will bind the class members, the class members constitute a settlement class.



Certification of class proceeding

6(1)                   The court shall certify a proceeding as a class proceeding on a motion under section 3 or 4 if, in the opinion of the court,



(a)               the pleadings disclose or the Notice of Application discloses 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 predominates over issues affecting only individual members,



(d)               a class proceeding would be the preferable procedure for the fair and efficient resolution of the dispute, and



(e)               there is a person seeking to be appointed as representative plaintiff for the class who



(i)         would fairly and adequately represent the interests of the class,



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



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



6(2)                   In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the dispute, the court shall consider



(a)               whether questions of fact or law common to the class members predominate over any questions affecting only individual members,



(b)               whether a significant number of the class members have a valid interest in individually controlling the prosecution of separate proceedings,



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



(d)               whether other means of resolving the claims are less practical or less efficient,



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



(f)                any other matter the court considers relevant.



6(3)                   Notwithstanding subsection (1), if a motion is made to certify a proceeding as a class proceeding in order that a settlement will bind the members of a settlement class, the court shall not certify the proceeding as a class proceeding unless the court approves the settlement.



Adjournment of certification motion and effect of certification

7(1)                   The court may adjourn the motion for certification to permit the parties to amend their materials or pleadings or to permit further evidence to be introduced.



7(2)                   An order certifying a proceeding as a class proceeding is not a determination of the merits of the proceeding.



Subclasses

8(1)                   If 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 appointing the representative plaintiff for the class, appoint for each subclass a representative plaintiff who, in the opinion of the court,



(a)               would fairly and adequately represent the interests of the subclass,



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



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



8(2)                   A class that comprises persons resident in New Brunswick and persons not resident in New Brunswick shall be divided into resident and non-resident subclasses.



Certain matters not bar to certification

9                           The court shall not refuse to certify a proceeding as a class proceeding by reason only of one or more of the following:



(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 ascertained or may not be ascertainable;



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



Contents of certification order

10(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 class proceeding,



(g)               state the manner in which and the time within which a person who is not a resident of New Brunswick may opt into the class proceeding, and



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



10(2)               If 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 certification order shall include the same information in relation to the subclass that, under subsection (1), is required in relation to the class.



10(3)               If the certification order is made in respect of a settlement class, the court may, as the court considers appropriate, modify the contents of the order to reflect the existence of the settlement and its terms.



10(4)               The court may at any time amend a certification order on the motion of a party or class member or on its own motion.



Refusal to certify

11                        If the court refuses to certify a proceeding as a class proceeding, the court may permit the proceeding to continue as one or more proceedings between different parties and, for that purpose, the court may



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



(b)               order the amendment of the pleadings or the Notice of Application, and



(c)               make any other order it considers appropriate.



If conditions for certification not satisfied after certification

12(1)               Without limiting subsection 10(4), if at any time after a certification order is made under this Part it appears to the court that the conditions referred to in section 6 or subsection 8(1) are not satisfied, the court may amend the certification order, decertify the proceeding as a class proceeding or make any other order it considers appropriate.



12(2)               If the court makes a decertification order under subsection (1), the court may permit the proceeding to continue as one or more proceedings between different parties and may make any order referred to in section 11 in relation to each of those proceedings.



PART 3

CONDUCT OF CLASS PROCEEDINGS

Division A

Role of Court

Stages of class proceedings

13(1)               Unless the court otherwise orders under section 14, in a class proceeding,



(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 class members shall be determined in accordance with sections 29 and 30.



13(2)               The court may give judgment in respect of the common issues and separate judgments in respect of any other issue.



Court may determine conduct of class proceeding

14                        The court may at any time make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for that purpose, may impose on one or more of the parties the terms or conditions the court considers appropriate.



Court may stay any other proceeding

15                        The court may at any time stay or sever any proceeding related to the class proceeding on the terms or conditions the court considers appropriate.



Motions

16(1)               All motions in the class proceeding that are made before the trial of the common issues shall be heard by the same judge, but, if that judge becomes unavailable for any reason to hear a motion in the class proceeding, the Chief Justice of the court may assign another judge of the court to hear the motion.



16(2)               A judge who hears a motion under subsection (1) may but need not preside at the trial of the common issues.



Division B

Participation of Class Members

Participation of class members

17(1)               In order to ensure the fair and adequate representation of the interests of the class or any subclass or for any other appropriate reason, the court may at any time in a class proceeding permit one or more class members to participate in the class proceeding.



17(2)               Participation under subsection (1) shall be in the manner and on the terms or conditions, including terms or conditions as to costs, that the court considers appropriate.



Opting out and opting in

18(1)               A person who is a member of a class involved in a class proceeding may opt out of the class proceeding



(a)               in the manner and within the time specified in the certification order, or



(b)               with leave of the court and on the terms or conditions the court considers appropriate.



18(2)               A person referred to in subsection (1) who opts out of the class proceeding ceases, from the time the person opts out and subject to any terms or conditions referred to in subsection (1), to be a member of the class involved in the class proceeding.



18(3)               Subject to subsection (5), a person who is not a resident of New Brunswick and who would otherwise be a member of a class involved in the class proceeding may opt into the class proceeding



(a)               in the manner and within the time specified in the certification order, or



(b)               with leave of the court and on the terms or conditions the court considers appropriate.



18(4)               A person referred to in subsection (3) who opts into a class proceeding is, from the time the person opts in and subject to any terms or conditions referred to in subsection (3), a member of the class involved in the class proceeding.



18(5)               A person shall not opt into a class proceeding under subsection (3) unless the subclass of which the person is to become a member has or will have, at the time the person becomes a member, a representative plaintiff who satisfies the requirements set out in paragraphs 8(1)(a), (b) and (c).



18(6)               If a subclass is created as a result of persons opting into a class proceeding under subsection (3), the representative plaintiff for that subclass shall ensure that the certification order for the class proceeding is amended, if necessary, to comply with subsection 10(2).



18(7)               Notwithstanding anything in this section, if the court certifies a proceeding as a class proceeding on a motion by a defendant, a class member shall not opt out of the class proceeding other than with leave of the court.



18(8)               Notwithstanding anything in this section, the court may at any time determine whether or not a person is a class or subclass member subject to any terms or conditions the court considers appropriate.



Discovery

19(1)               Parties to a class proceeding have the same rights of discovery under the Rules of Court against one another as they would have in any other proceeding.



19(2)               After discovery of the representative plaintiff or, if there are subclasses, one or more of the representative plaintiffs, a defendant may, with leave of the court, discover other class members.



19(3)               In deciding whether to grant a defendant leave to discover other class members, the court shall consider



(a)               the stage of the class proceeding and the issues to be determined at that stage,



(b)               the presence of subclasses,



(c)               whether the discovery is necessary in view of the defences of the party seeking leave,



(d)               the approximate monetary value of 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 discovered, and



(f)                any other matter the court considers relevant.



19(4)               A class member is subject to the same sanctions under the Rules of Court as a party for failure to submit to discovery.



Examination of class members as witnesses

20(1)               A party shall not require a class member, other than a representative plaintiff, to be examined as a witness before the hearing of any motion, except with leave of the court.



20(2)               Subsection 19(3) applies with the necessary modifications to a decision whether to grant leave under subsection (1) of this section.



Division C

Notices

Notice of certification

21(1)               Subject to subsection (2), notice that a proceeding has been certified as a class proceeding shall be given by the representative plaintiff for the class to the class members in accordance with this section.



21(2)               The court may dispense with notice if, having regard to the factors set out in subsection (3), the court considers it appropriate to do so.



21(3)               The court shall make an order setting out when and by what means notice is to be given under this section and in doing so shall have regard to



(a)               the cost of giving notice,



(b)               the nature of the relief sought,



(c)               the size 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)               any other matter the court considers relevant.



21(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,



(e)               creating and maintaining an Internet site, or



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



21(5)               The court may order that notice be given to different class members by different means.



21(6)               Unless the court orders otherwise, a notice under this section shall



(a)               describe the class proceeding, 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 class proceeding,



(c)               state the manner in which and the time within which a person who is not a resident of New Brunswick may opt into the class proceeding,



(d)               describe any counterclaim or third party claim being asserted in the class proceeding, including the relief sought,



(e)               summarize any agreements respecting fees and disbursements



(i)         between the representative plaintiff for the class and that representative plaintiff's solicitors, and



(ii)       if the recipient of the notice is a subclass member, between the representative plaintiff for the subclass and that representative plaintiff's solicitors,



(f)                describe the possible financial consequences of the class proceeding to class and subclass members,



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



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



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



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



(k)               give any other information the court considers appropriate.



21(7)               If the motion to certify a proceeding as a class proceeding was made in respect of a settlement class, a notice under this section shall refer to the existence of the settlement and describe its terms, and shall be modified otherwise as the court considers appropriate.



21(8)               With leave of the court, a notice under this section may include a solicitation of contributions from class members to assist in paying solicitors' fees and disbursements.



Notice of determination of common issues

22(1)               If the court determines common issues in favour of a class or subclass and considers that the participation of individual class or subclass members is required to determine individual issues, the representative plaintiff shall give notice to those members in accordance with this section.



22(2)               Subsections 21(3) to (5) apply with the necessary modifications to a notice given under this section.



22(3)               A notice 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)               state that class or subclass members may be entitled to individual relief,



(d)               describe the steps that must be taken to establish an individual claim,



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



(f)                give an address to which class or subclass members may direct inquiries about the class proceeding, and



(g)               give any other information the court considers appropriate.



Notice to protect interests of affected persons

23(1)               At any time in a class proceeding, the court may order any party to give any notice that the court considers necessary to protect the interests of any class member or party or to ensure the fair conduct of the class proceeding.



23(2)               Subsections 21(3) to (5) apply with the necessary modifications to a notice given under this section.



Approval of notice by the court

24                        A notice under this Division shall be approved by the court before it is given.



Giving of notice by another party

25                        If a party is required to give notice under this Act, the court may order another party to give the notice in addition to or instead of the party that was required to give the notice.



Costs of notice

26(1)               The court may make any order it considers appropriate as to the costs of any notice under this Division, including an order apportioning costs among parties.



26(2)               In making an order under subsection (1), the court may have regard to the different interests of a subclass.



PART 4

ORDERS, AWARDS AND RELATED PROCEDURES

Division A

Order on Common Issues and Individual Issues

Contents of order on common issues

27                        An order made in respect of 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.



Judgment on common issues is binding

28(1)               A judgment on common issues of a class or subclass binds every class or subclass member, as the case may be, who has not opted out of the class proceeding, 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.



28(2)               A judgment on common issues of a class or subclass does not bind a party to the class proceeding in any subsequent proceeding between the party and a person who opted out of the class proceeding.



Determination of issues affecting certain individuals

29(1)               If 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 34, that are applicable only to certain individual class or subclass members, the court may



(a)               determine those 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 limiting the generality of the foregoing, one or more independent experts, to conduct a reference into those individual issues under the Rules of Court and report back to the court, or



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



29(2)               The court may give any necessary directions relating to the procedures that shall be followed in conducting hearings, references and determinations under subsection (1).



29(3)               In giving directions under subsection (2), the court shall choose the least expensive and most expeditious method of determining the individual issues that, in the opinion of the court, is consistent with justice to the class or subclass members and the parties and, in doing so, the court may



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



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



29(4)               The court shall set a reasonable time within which individual class or subclass members may make claims under this section in respect of the individual issues.



29(5)               A class or subclass member who fails to make a claim within the time set under subsection (4) shall not later make a claim under this section in respect of the individual issues applicable to that member except with leave of the court.



29(6)               The court may grant leave under subsection (5) if, in the opinion of the court,



(a)               there are apparent grounds for relief,



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



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



29(7)               Unless otherwise ordered by the court making a direction under paragraph (1)(c), a determination of issues made in accordance with that paragraph is deemed to be an order of the court.



Individual assessment of liability

30                        Without limiting section 29, if, after determining common issues in favour of a class or subclass, the court determines that the defendant's liability to individual class or subclass members cannot reasonably be determined without proof by those individual class or subclass members, section 29 applies with the necessary modifications to the determination of the defendant's liability to those class or subclass members.



Division B

Aggregate Awards

Aggregate monetary awards

31(1)               The court may make an order for an aggregate monetary award in respect of all or any part of a defendant's liability to class or subclass members and may give judgment accordingly if



(a)               monetary relief is claimed on behalf of some or all class or subclass 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 defendant's monetary liability, and



(c)               the aggregate or a part of the defendant's liability to some or all class or subclass members can, in the opinion of the court, reasonably be determined without proof by individual class or subclass members.



31(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 any matter relating to the proposed order, including, without limiting the generality of the foregoing,



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



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



Statistical evidence may be used

32(1)               For the purposes 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, if the information was compiled in accordance with principles that are generally accepted by experts in the field of statistics.



32(2)               A record of statistical information purporting to be prepared or published under the authority of an Act of Parliament or of the legislature of any province or territory of Canada may be admitted as evidence without proof of its authenticity.



32(3)               Statistical information shall not be admitted as evidence under this section unless the party seeking to introduce the information



(a)               has given to the party against whom the statistical evidence is to be used a copy of the information at least 60 days before that information is to be introduced 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.



32(4)               A notice under this section shall specify the source of any statistical information sought to be introduced that



(a)               was prepared or published under the authority of an Act of Parliament or of the legislature of any province or territory of Canada,



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



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



32(5)               Except with respect to information referred to in subsection (4), a notice under this section 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 any documents prepared or used in the course of preparing the statistical information sought to be introduced.



32(6)               Unless this section provides otherwise, the law and practice with respect to evidence tendered by an expert in a proceeding applies to a class proceeding.



32(7)               Except with respect to information referred to in subsection (4), a party against whom statistical information is sought to be introduced under this section may require the party seeking to introduce it to produce for inspection any 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.



Average or proportional share of aggregate awards

33(1)               If the court makes an order under section 31, the court may further order that all or a 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 if, in the opinion of the court,



(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.



33(2)               If an order is made under subsection (1), any class or subclass member in respect of whom the order was made may, within the time specified in the order, make a motion to the court to be excluded from the proposed distribution and to be given the opportunity to prove that member's claim on an individual basis.



33(3)               In deciding whether to exclude a class or subclass member from an average or proportional distribution, the court shall consider



(a)               the extent to which the class or subclass member's individual claim varies from the amount that he or she would receive on an average or proportional basis,



(b)               the number of class or subclass members seeking to be excluded from an average or proportional 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 or proportional basis.



33(4)               An amount recovered by a class or subclass member who proves his or her claim on an individual basis shall be deducted from the amount to be distributed on an average or proportional basis before the distribution.



Individual share of aggregate award

34(1)               If the court orders that all or a part of an aggregate monetary award under subsection 31(1) be divided among individual class or subclass members on an individual basis, the court shall also determine whether individual claims need to be made to give effect to the order.



34(2)               If the court determines under subsection (1) that individual claims need to be made, the court shall specify the procedures for determining the claims.



34(3)               In specifying the procedures under subsection (2), the court shall minimize the burden on class or subclass members and, for that purpose, the court may authorize



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



(b)               the submission of affidavit or other documentary evidence,



(c)               the auditing of claims on a sampling or other basis, and



(d)               any other procedure the court considers appropriate.



34(4)               When specifying the procedures under subsection (2), the court shall set a reasonable time within which individual class or subclass members may make claims under this section.



34(5)               A class or subclass member who fails to make a claim within the time set under subsection (4) shall not later make a claim under this section except with leave of the court.



34(6)               Subsection 29(6) applies with the necessary modifications to a decision whether to grant leave under subsection (5) of this section.



34(7)               The court may amend a judgment given under subsection 31(1) to give effect to a claim made with leave under subsection (5) of this section if the court considers it appropriate to do so.



Distribution

35(1)               The court may direct any means of distribution of amounts awarded under this Division that it considers appropriate.



35(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 by any means authorized by the court, including abatement or credit,



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



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



35(3)               In deciding whether to make an order under paragraph (2)(a), the court



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



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



35(4)               The court shall supervise the execution of judgments and the distribution of awards under this Division and may stay the whole or any part of an execution or distribution for a reasonable period on the terms or conditions it considers appropriate.



35(5)               The court may order that an award made under this Division be paid



(a)               in a lump sum, promptly or within a time set by the court, or



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



35(6)               The court may



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



(b)               make any other order it considers appropriate.



Undistributed award

36(1)               The court may order that all or any part of an award under this Division that has not been distributed within a time set by the court



(a)               be applied in any manner that, in the opinion of the court, may reasonably be expected to benefit class or subclass members,



(b)               be applied against the cost of the class proceeding,



(c)               be forfeited to the Crown in right of New Brunswick, or



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



36(2)               In deciding whether to make an order under paragraph (1)(a), the court shall consider



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



(b)               any other matter the court considers relevant.



36(3)               The court may make an order under paragraph (1)(a) whether or not all the class or subclass members can be identified or all their shares can be exactly determined.



36(4)               The court may make an order under paragraph (1)(a) 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 proceeding.



Division C

Termination of Proceedings and Appeals

Settlement, discontinuance and dismissal

37(1)               A class proceeding may be settled or discontinued only



(a)               with the approval of the court, and



(b)               on the terms or conditions the court considers appropriate.



37(2)               A settlement in relation to the common issues affecting a subclass may be concluded only



(a)               with the approval of the court, and



(b)               on the terms or conditions the court considers appropriate.



37(3)               A settlement under this section is not binding unless approved by the court.



37(4)               If a proceeding has been certified as a class proceeding, a settlement of the class proceeding or of common issues affecting a subclass that is approved by the court binds every class or subclass member who has not opted out of the class proceeding, but only to the extent provided by the court.



37(5)               In dismissing a class proceeding or in approving a settlement or discontinuance, the court shall consider whether notice should be given and whether the notice should include



(a)               an account of the conduct of the class proceeding,



(b)               a statement of the result of the class proceeding, and



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



37(6)               Subsections 21(3) to (5) apply with the necessary modifications to a notice referred to in subsection (5) of this section.



Appeals

38(1)               Any party may appeal, without leave, to The Court of Appeal of New Brunswick from



(a)               a judgment on common issues, or



(b)               an order under Division B of this Part, other than an order that determines individual claims made by class or subclass members.



38(2)               With leave of a judge of The Court of Appeal of New Brunswick, a class or subclass member, a representative plaintiff or a defendant may appeal to that court any 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.



38(3)               With leave of a judge of The Court of Appeal of New Brunswick, any party may appeal to that court from



(a)               a certification order or an order refusing to certify a proceeding as a class proceeding, or



(b)               a decertification order.



38(4)               If a representative plaintiff for a class or subclass does not appeal or seek leave to appeal as permitted by subsection (1) or (3) within the time limit for bringing an appeal set under the Rules of Court or if a representative plaintiff abandons an appeal under subsection (1) or (3), any member of the class or subclass may make a motion to a judge of The Court of Appeal of New Brunswick for leave to act as the representative plaintiff for the purposes of subsection (1) or (3).



38(5)               A motion by a class or subclass member for leave to act as the representative plaintiff under subsection (4) shall be made within 30 days after the expiry of the appeal period available to the representative plaintiff or by such other date as the judge of The Court of Appeal of New Brunswick may order.



PART 5

COSTS, FEES AND DISBURSEMENTS

Costs

39(1)               With respect to any proceeding or other matter under this Act, costs may be awarded in accordance with the Rules of Court.



39(2)               Class members, other than a representative plaintiff, are not liable for costs except with respect to the determination of their own individual claims.



Agreements respecting fees and disbursements

40(1)               An agreement respecting fees and disbursements between a solicitor and a representative plaintiff shall be in writing and shall



(a)               state the terms or conditions 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 proceeding,



(c)               if interest is payable on fees or disbursements referred to in paragraph (a), state the manner in which the interest will be calculated, and



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



40(2)               An agreement respecting fees and disbursements between a solicitor and a representative plaintiff is not enforceable unless approved by the court, on the motion of the solicitor.



40(3)               A motion under subsection (2) may,



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



(b)               if notice to the defendants is required, be made on the terms or conditions that the court may order respecting disclosure of the whole or any part of the agreement respecting fees and disbursements.



40(4)               Amounts owing under an enforceable agreement are a first charge on any settlement funds or monetary award.



40(5)               If an agreement 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 that a reference into the amount owing be conducted under the Rules of Court, or



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



40(6)               Part 14 of the Law Society Act, 1996, does not apply to an agreement referred to in this section.



PART 6

GENERAL

Limitation periods

41(1)               Subject to subsection (2), any limitation period applicable to a cause of action asserted in a class proceeding is suspended in favour of a class member on the commencement of the proceeding and resumes running against the class member when



(a)               a ruling is made by the court refusing to certify the proceeding as a class proceeding,



(b)               the class member opts out of the class proceeding,



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



(d)               a decertification order is made under section 12,



(e)               the class proceeding is dismissed without an adjudication on the merits,



(f)                the class proceeding is discontinued with the approval of the court, or



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



41(2)               If there is a right of appeal in respect of an event described in paragraphs (1)(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 any appeal has been finally disposed of.



41(3)               If the running of a limitation period is suspended under this section and the period has less than 6 months to run when the suspension ends, the limitation period, notwithstanding anything in this section, is extended to the day that is 6 months after the day on which the suspension ends.



Rules of Court

42                        The Rules of Court apply to class proceedings to the extent that those rules are not in conflict with this Act.



COMMENCEMENT

Commencement

43                        This Act or any provision of it comes into force on a day or days to be fixed by proclamation.

 

Legislative Assembly of New Brunswick
Email | Contacts |
Disclaimer