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C.C.S.M. c. C130

The Class Proceedings Act

(Assented to July 25, 2002)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

INTRODUCTORY PROVISIONS

Definitions

1           In this Act,

"certification order" means an order certifying a proceeding as a class proceeding; (« ordonnance d'attestation »)

"class proceeding" means a proceeding certified as a class proceeding under Part 2; (« 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", except in sections 36 and 37, means the Court of Queen's Bench; (« tribunal »)

"defendant" includes a respondent; (« défendeur »)

"party" means a representative plaintiff or a defendant but does not include individual members of a class or of a subclass; (« partie »)

"plaintiff" includes an applicant; (« demandeur »)

"representative plaintiff" means a person appointed as a representative plaintiff under section 2, 3 or 6. (« représentant des demandeurs »)

PART 2

CERTIFICATION

Member of class may commence proceeding

2(1)        One or more members of a class of persons may commence a proceeding in the court on behalf of the members of that class.

Motion for certification by plaintiff

2(2)        A person who commences a proceeding under subsection (1) must make a motion to the court for an order

(a) certifying the proceeding as a class proceeding; and

(b) appointing a representative plaintiff.

Timing of motion

2(3)        A motion under subsection (2) must be made

(a) within 90 days after the close of pleadings or the noting of a defendant in default; or

(b) with leave of the court, at any other time.

Representative plaintiff not from class

2(4)        The court may appoint a person who is not a member of the class as the representative plaintiff only if it is necessary to do so in order to avoid a substantial injustice to the class.

Motion for certification by defendant

3           A defendant to two 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.

Certification of class proceeding

4           The court must certify a proceeding as a class proceeding on a motion under section 2 or 3 if

(a) the pleadings disclose a cause of action;

(b) there is an identifiable class of two 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 common issues; and

(e) there is a person who is prepared to act as the representative plaintiff 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, on the common issues, an interest that conflicts with the interests of other class members.

Adjournment of certification motion

5(1)        The court may adjourn a motion for certification to permit the parties to amend their materials or pleadings, or to permit further evidence to be filed.

Meaning of certification

5(2)        An order certifying a proceeding as a class proceeding is not a determination of the merits.

Certification of subclass

6(1)        At a motion for certification under section 4, the court may, if it is satisfied that a class includes a subclass whose members have claims that raise common issues not shared by all the class members so that the protection of the interests of the subclass members requires that they be separately represented, appoint a representative plaintiff for each subclass in addition to appointing a representative plaintiff for the class.

Representative plaintiff for subclass

6(2)        In appointing a representative plaintiff for a subclass under subsection (1), the court must consider whether a proposed representative plaintiff

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

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

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

Residency

6(3)        A class that comprises persons resident in Manitoba and persons not resident in Manitoba may be divided into resident and non-resident subclasses.

Certain matters not bar to certification

7           The court must 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

8(1)        A certification order must

(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 proceeding; and

(g) include any other provision the court considers appropriate.

Contents of certification order involving subclasses

8(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 must include the same information in relation to the subclass that, under subsection (1), is required in relation to the class.

Amendment of certification order

8(3)        The court may at any time amend a certification order on the motion of a party, a class member, or on its own motion.

Refusal to certify

9           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; and

(c) make any other order that it considers appropriate.

If conditions for certification not satisfied

10(1)       Without limiting subsection 8(3), at any time after a certification order is made, the court may amend the order, decertify the proceeding or make any other order it considers appropriate, if it appears to the court that the conditions mentioned in section 4 or 6 are not satisfied with respect to a class proceeding.

Consequences of decertification

10(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 clauses 9(a) to (c) in relation to each of those proceedings.

PART 3

CONDUCT OF CLASS PROCEEDINGS

DIVISION 1

THE ROLE OF THE COURT

Stages of class proceedings

11(1)       Unless the court otherwise orders under section 12,

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

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

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

Judgment on common issues

11(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 proceeding

12          The court may at any time make any order that 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 it considers appropriate.

Court may stay proceeding

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

Motions before certification judge

14(1)       The judge who makes a certification order is to hear all motions in the class proceeding before the trial of the common issues.

Unavailability of certification judge

14(2)       If the judge who has heard motions under subsection (1) becomes unavailable for any reason to hear a motion in the class proceeding, the chief justice of the court may assign another judge to hear the motion.

Certification judge not to preside at trial

14(3)       Except with the consent of the parties, a judge who hears a motion under subsection (1) or (2) may not preside at the trial of the common issues.

DIVISION 2

PARTICIPATION OF CLASS MEMBERS

Participation of class members

15(1)       In order to ensure the fair and adequate representation of the interests of the class or a 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 proceeding.

Court order re participation by class members

15(2)       Participation by a class member under subsection (1) must be in the manner and on the terms, including terms as to costs, that the court considers appropriate.

Opting out of class proceeding

16          A member of a class involved in a class proceeding may opt out of the proceeding in the manner and within the time specified in the certification order.

Discovery

17(1)       Parties to a class proceeding have the same rights of examination for discovery under the Queen's Bench Rules against one another as they would have in any other proceeding.

Discovery of class members

17(2)       After examination for discovery of the representative plaintiff or, in a class proceeding referred to in section 6, one or more of the representative plaintiffs, a defendant may, with leave of the court, discover other class members.

Considerations re discovery of class members

17(3)       In deciding whether to grant a defendant leave to examine other class members, the court must 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 examination for discovery is necessary in view of the claims or defences of the party seeking leave;

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

(e) whether examination for 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.

Failure to submit to examination for discovery

17(4)       A class member is subject to the same sanctions under the Queen's Bench Rules as a party for failure to submit to examination for discovery.

Examination of class members

18(1)       A party may not require a class member, other than a representative plaintiff, to be examined as a witness before the hearing of any motion in a class proceeding, except with leave of the court.

Considerations re examination of class members

18(2)       Subsection 17(3) applies, with necessary changes, to a decision whether to grant leave under subsection (1).

DIVISION 3

NOTICES

Notice of certification

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

Waiver of notice

19(2)       The court may waive the requirement that a representative plaintiff give notice of certification if, having regard to the factors set out in subsection (3), the court considers it appropriate to do so.

Considerations re notice

19(3)       The court must make an order setting out when and by what means notice is to be given under this section, and in doing so must 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 relevant matter.

Method of giving notice

19(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.

Different means of notice for different classes

19(5)       The court may order that notice be given to different class members by different means.

Contents of notice

19(6)       Unless the court orders otherwise, notice under this section must

(a) describe the proceeding, including the names and addresses of counsel for the representative plaintiff 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) describe any counterclaim or third party claim asserted in the class proceeding, including the relief sought;

(d) summarize any agreements respecting fees and disbursements,

(i) between the representative plaintiff and his or her lawyers, and

(ii) if the recipient of the notice is a member of a subclass, between the representative plaintiff for that subclass and his or her lawyers;

(e) describe the possible financial consequences of the class proceeding to class members and subclass members;

(f) 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;

(g) 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;

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

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

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

Solicitation of contributions

19(7)       With leave of the court, notice under this section may include a solicitation of contributions from class members to assist in paying lawyers' fees and disbursements.

Notice of determination of common issues

20(1)       Unless the court orders otherwise, where the court determines common issues in favour of a class or subclass and considers that the participation of individual members of the class or subclass is required to determine individual issues, the representative plaintiff must give notice to those members in accordance with this section.

Considerations re notice

20(2)       Subsections 19(3) to (5) apply, with necessary changes, to notice given under this section.

Contents of notice

20(3)       Notice under this section must

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

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

(c) describe the steps that must be taken to establish an individual claim;

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

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

(f) give any other information that the court considers appropriate.

Notice to protect interests of affected persons

21(1)       At any time in a class proceeding, the court may order any party to give such notice to the persons that the court considers necessary to protect the interests of any class member or party or to ensure the fair conduct of the proceeding.

Considerations re notice

21(2)       Subsections 19(3) to (5) apply with necessary changes to notice given under this section.

Approval of notice by the court

22          A notice under this Division must be approved by the court before it is given.

Giving of notice by another party

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

Costs of notice

24(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.

Court may consider different interests of subclass

24(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 1

ORDERS ON COMMON AND INDIVIDUAL ISSUES

Contents of order on common issues

25          An order made in respect of a judgment on common issues of a class or subclass must

(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 binding

26(1)       A judgment on common issues of a class or subclass binds every member of the class or subclass who has not opted out of the class 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.

Where judgment does not bind party

26(2)       A judgment on common issues of a class or subclass does not bind a defendant to the class proceeding in any later proceeding between the defendant and a person who opted out of the class proceedings.

Determination of individual issues

27(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 32, that are applicable only to certain individual members of the class or subclass, 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 limitation, one or more independent experts, to conduct a reference into those individual issues in accordance with the procedures set out in the Queen's Bench Rules 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.

Directions for determination of individual issues

27(2)       The court may give directions relating to the procedures to be followed in conducting hearings, references and determinations under subsection (1).

Considerations in giving directions

27(3)       In giving directions under subsection (2), the court must choose the least expensive and most expeditious method of determining the individual issues that is consistent with justice to members of the class or subclass and the parties and, in 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.

Deadline for making claim

27(4)       The court must set a reasonable time within which individual members of the class or subclass may make claims under this section in respect of the individual issues.

No claim without leave

27(5)       A member of the class or subclass who fails to make a claim within the time set under subsection (4) may not later make a claim under this section in respect of the individual issues applicable to that member except with leave of the court.

Considerations re leave

27(6)       The court may grant leave under subsection (5) if it is satisfied that

(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.

Deemed order of the court

27(7)       Unless the court orders otherwise when making a direction under clause (1)(c), a determination of issues made in accordance with clause (1)(c) is deemed to be an order of the court.

Individual assessment of liability

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

DIVISION 2

AGGREGATE AWARDS

Aggregate awards of monetary relief

29(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 members of a class or subclass, and may give judgment accordingly, if

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

(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 members of the class or subclass can reasonably be determined without proof by individual members of the class or subclass.

Submissions by defendant

29(2)       Before making an order under subsection (1), the court must provide the defendant with an opportunity to make submissions to the court in respect of any matter touching on the proposed order, including submissions

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

(b) that individual proof of monetary relief is required owing to the individual nature of the relief claimed.

Statistical evidence may be used

30(1)       For the purpose of determining issues relating to the amount or distribution of an aggregate monetary award under this Act, the court may admit as evidence statistical information that would not otherwise be admissible, 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.

Exempt records

30(2)       A record of statistical information purporting to be prepared by or published under the authority of an enactment of the Parliament of Canada or the legislature of any province or territory of Canada may be admitted as evidence without proof of its authenticity.

Introduction of statistical information

30(3)       Statistical information must 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.

Notice

30(4)       Notice under this section must specify the source of any statistical information sought to be introduced that

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

(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.

Contents of notice

30(5)       Except with respect to information referred to in subsection (4), notice under this section must

(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.

Law applies

30(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.

Inspection of documents

30(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

31(1)       If the court makes an order under section 29, 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

(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.

Application to be excluded from distribution

31(2)       If an order is made under subsection (1), any member of the class or subclass in respect of which the order was made may, within the time specified in the order, apply to the court to be excluded from the proposed distribution and to be given the opportunity to prove his or her claim on an individual basis.

Considerations re exclusion

31(3)       In deciding whether to exclude a class or subclass member from an average or proportional distribution, the court must consider

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

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

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

Deduction of individual awards

31(4)       An amount recovered by a class or subclass member who proves his or her claim on an individual basis must be deducted from the amount to be distributed on an average or proportional basis before the distribution.

S.M. 2004, c. 42, s. 14.

Individual share of aggregate award

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

Determining claims

32(2)       If the court determines under subsection (1) that individual claims need to be made, the court must specify the procedures for determining the claims.

Methods of determining claims

32(3)       In specifying the procedures under subsection (2), the court must attempt to minimize the burden on class or subclass members and, for that purpose, the court may authorize

(a) the use of standardized proof of claim forms;

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

(c) the audit of claims on a sampling or other basis; and

(d) any other procedure the court considers appropriate.

Deadline for making claim

32(4)       When specifying the procedures under subsection (2), the court must set a reasonable time within which individual class or subclass members may make claims under this section.

No claim without leave

32(5)       A class or subclass member who fails to make a claim within the time set under subsection (4) may not later make a claim under this section except with leave of the court.

Considerations re leave

32(6)       Subsection 27(6) applies with necessary modifications to a decision whether to grant leave under subsection (5) of this section.

Amended judgment

32(7)       The court may amend a judgment given under subsection 29(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 of awards

33(1)       The court may direct any means of distributing amounts awarded under this Division that it considers appropriate.

Distribution options

33(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 and 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 member is entitled.

Considerations re distribution

33(3)       In deciding whether to make an order under clause (2)(a), the court

(a) must 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.

Court supervision

33(4)       The court must 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 terms that it considers appropriate.

Awards paid in lump sum or instalments

33(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 terms that the court considers appropriate.

Costs of distribution

33(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; or

(b) make any further or other order it considers appropriate respecting the costs of distributing an award under this Division.

Undistributed award

34(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 be applied in any manner that may reasonably be expected to benefit class or subclass members, even if the order does not provide for monetary relief to individual class or subclass members.

Considerations re undistributed award

34(2)       In deciding whether to make an order under subsection (1), the court must consider

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

(b) any other matter the court considers relevant.

Undistributed award if class members unknown

34(3)       The court may make an order under subsection (1) whether or not all the class or subclass members can be identified or all their shares can be exactly determined.

Award may benefit non-class members

34(4)       The court may make an order under subsection (1) even if the order would benefit

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

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

Unclaimed award

34(5)       If any part of an award that under subsection 32(1) is to be divided among individual class or subclass members remains unclaimed or otherwise undistributed after a time set by the court, the court may order that the unclaimed or undistributed part of the award

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

(b) be forfeited to the government; or

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

S.M. 2004, c. 42, s. 14.

DIVISION 3

TERMINATION OF PROCEEDINGS AND APPEALS

Settlement, discontinuance and abandonment

35(1)       A class proceeding may be settled, discontinued or abandoned only

(a) with the approval of the court; and

(b) on the terms the court considers appropriate.

Court approval of settlement

35(2)       A settlement may be concluded in relation to the common issues affecting a subclass only

(a) with the approval of the court; and

(b) on the terms the court considers appropriate.

Settlement not binding unless approved

35(3)       A settlement is not binding unless approved by the court.

Settlement binding on class members

35(4)       A settlement of a class proceeding or of common issues affecting a subclass that is approved by the court binds every member of the class or subclass who has not opted out of the class proceeding, but only to the extent provided by the court.

Notice to class members

35(5)       In dismissing a class proceeding or in approving a settlement, discontinuance or abandonment, the court must consider whether notice of the dismissal or approval should be given under section 20 and whether the notice should include

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

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

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

Appeals

36(1)       A representative plaintiff or defendant may appeal without leave to The Court of Appeal from

(a) a judgment on common issues; or

(b) an order under Division 2 of this Part, other than an order that determines individual claims made by class or subclass members.

Leave to appeal

36(2)       With leave of a justice of The Court of Appeal, a representative plaintiff or a defendant may appeal to that court from 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.

Appeal by class member

36(3)       With leave of a justice of The Court of Appeal, a class or subclass member may appeal to that court from any order

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

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

Appeal of certification decision

36(4)       With leave of a justice of The Court of Appeal, a representative plaintiff or defendant may appeal to The Court of Appeal from

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

(b) an order decertifying a proceeding.

Right of class member to appeal

36(5)       If a representative plaintiff does not appeal or seek leave to appeal as permitted by subsection (1) or (4) within the time limit for bringing an appeal set under the Court of Appeal Rules, or if a representative plaintiff abandons an appeal under subsection (1) or (4), any member of the class or subclass for which the representative plaintiff had been appointed may make a motion to a justice of The Court of Appeal for leave to act as the representative plaintiff for the purpose of subsection (1) or (4).

Deadline for class member

36(6)       A motion by a class or subclass member for leave to act as the representative plaintiff under subsection (5) must be made within 30 days after the expiry of the appeal period available to the representative plaintiff or by such other date as the justice may order.

Extension of time limit to appeal

36(7)       If leave has been granted to a member of a class or subclass under subsection (5), the time limit for that person to appeal or seek leave to appeal is extended for 30 days after the date leave is extended by The Court of Appeal.

S.M. 2004, c. 42, s. 14.

PART 5

COSTS, FEES AND DISBURSEMENTS

Costs

37(1)       Subject to this section, no costs may be awarded against any party with respect to any stage of a class proceeding, including a motion for certification under subsection 2(2) or section 3, or any appeal arising from a class proceeding.

Considerations re costs

37(2)       The Court of Queen's Bench or The Court of Appeal may only award costs to a party in respect of a motion for certification or in respect of all or any part of a class proceeding or an appeal arising from a class proceeding if

(a) the court considers that there has been vexatious, frivolous or abusive conduct on the part of any party;

(b) the court considers that an improper or unnecessary motion or other step has been made or taken for the purpose of delay or increasing costs or for any other improper purpose; or

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

Assessment of costs

37(3)       A court that orders costs under subsection (2) may order that those costs be assessed in any manner that the court considers appropriate.

Class members not liable for costs

37(4)       Class members, other than a person appointed as a representative plaintiff, are not liable for costs except with respect to the determination of their own individual claims.

S.M. 2010, c. 33, s. 4.

Agreements respecting fees and disbursements

38(1)       An agreement respecting fees and disbursements between a lawyer and a representative plaintiff must be in writing and must

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

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

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

Approval of agreements

38(2)       An agreement respecting fees and disbursements between a lawyer and a representative plaintiff is not enforceable unless approved on motion to the court.

Motion for approval of agreements

38(3)       A motion under subsection (2) may,

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

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

Interest

38(4)       Interest payable on fees under an agreement approved under subsection (2) must be calculated in the manner set out in the agreement or, if it is not so set out, must be charged

(a) at the prejudgment rate, as defined in The Court of Queen's Bench Act; or

(b) at any other rate the court considers appropriate.

Calculation of interest

38(5)       Interest payable on disbursements under an agreement approved under subsection (2) must be calculated in the manner set out in the agreement or, if it is not set out in the agreement,

(a) at the prejudgment rate, as defined in The Court of Queen's Bench Act; or

(b) at any other rate the court considers appropriate, on the balance of disbursements incurred as totalled at the end of each 6 month period following the date of the agreement.

First charge

38(6)       Amounts owing under an agreement approved by the court under subsection (2), are a first charge on any settlement funds or monetary award.

Power of court to determine fees

38(7)       If an agreement is not approved by the court or if the amount owing under an approved agreement is in dispute the court may, on motion,

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

(b) direct a reference under the Queen's Bench Rules to determine the amount owing; or

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

PART 6

GENERAL

Limitation period

39(1)       Subject to subsection (3), a limitation period applicable to a cause of action asserted in a proceeding

(a) is suspended in favour of a person when a proceeding has been commenced under this Act involving the same cause of action and it is reasonable for that person to assume that he or she was a class member for the purposes of that proceeding; and

(b) resumes running against that person when clauses (2)(a) to (g) apply to that person as if he or she were the class member referred to in subsection (2).

Suspension of limitation period

39(2)       Subject to subsection (3), a limitation period applicable to a cause of action asserted in a proceeding commenced under this Act is suspended in favour of a class member on the commencement of the proceeding and resumes running against the member only when,

(a) a ruling is made by the court

(i) refusing to certify the proceeding as a class proceeding, or

(ii) that has the effect of excluding the member from the class proceeding or from being considered to have ever been a class member;

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

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

(d) a decertification order is made under section 10;

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

(f) the class proceeding is abandoned or 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.

Appeals

39(3)       Where there is a right of appeal in respect of an event described in clauses (2)(a) to (g), the limitation period resumes running as soon as the time for appeal has expired without an appeal being commenced or as soon as any appeal has been finally disposed of.

Application of rules of court

40          The Queen's Bench Rules, other than Rule 20A, apply to class proceedings, to the extent that those rules are not in conflict with this Act.

Application of Act

41          This Act does not apply to

(a) a 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 representative proceeding commenced before this Act comes into force.

Service on Attorney-General

42          Before a motion for certification under section 4 is heard, the representative plaintiff must serve the Attorney-General of Manitoba with a copy of the pleadings in a proceeding commenced under this Act.

Crown bound

43          This Act binds the Crown.

C.C.S.M. reference

44          This Act may be referred to as chapter C130 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

45          This Act comes into force on a day fixed by proclamation.

NOTE: S.M. 2002, c. 14 was proclaimed in force January 1, 2003.

 

 


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