NEW BRUNSWICK CLASS ACTIONS Chapter C A Plaintiff Perspective. Class Proceedings Act, proclaimed in New Brunswick in June of 2007.

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1 NEW BRUNSWICK CLASS ACTIONS Chapter C-5.15 A Plaintiff Perspective Class Proceedings Act, proclaimed in New Brunswick in June of General S.2(3) allows a proceeding started under Rule 14, to be continued on motion under the Class Proceedings Act. 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. As Dan has indicated, New Brunswick is an opt out jurisdiction for members of the class residing in New Brunswick and an opt in for those members outside the province. That means if any other Province such as Ontario, Manitoba and now Saskatchewan or soon Nova Scotia have a similar action started, class members from outside New Brunswick would have to opt in to be part of the New Brunswick action. This requires a positive action on the part of a class member where in the opt out jurisdictions they are automatically included. Costs Costs are awarded in accordance with the Rules of Court S.39 In New Brunswick this would be party/party costs with taxable disbursements. The above provisions will prevent New Brunswick from being used as a forum for a National Class Action, even in appropriate cases, because of the risk to the representative Plaintiff of an award of costs if not successful and the requirement that claimants residing outside the province will have to opt in.

2 2 Counsel in other jurisdictions with more favorable legislation will easily convince their Courts that their jurisdiction is the one most favorable to the class. Currently preferred jurisdictions seem to be: British Columbia Saskatchewan Manitoba Ontario Due to population and experience, Ontario seems to be most popular jurisdiction as a choice of where to start a national action. Courts there do not hesitate to take charge of national claims. Pleadings, Motions, Etc. S.3(4) anticipates a statement of defence may not be served until after certification the time period for certification runs from 90 days after the defence was normally due. This seems to be the norm for class action cases. Certification 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 S.42 indicates the Rules of Court apply to class proceedings to the extent those rules are not in conflict with this Act. Court may determine conduct of class proceeding S.14 Court may determine conduct of Class Proceedings 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

3 3 purpose, may impose on one or more of the parties the terms or conditions the court considers appropriate. In a recent decision Charles Bryson v. Attorney General; Justice Stephen J. McNally held that though the Rules of Court normally require a defence be filed before a third party notice is issued, the Defendant would be allowed to issue a third party notice and the third parties would be allowed to participate in the certification motion. [241 In my view, based on the record before me on this motion, excluding the third parties from the action at this stage would not serve the interests of judicial economy in that it would likely necessitate duplication of proceedings where the defendant and third parties may be required to relitigate many of the very same issues to be tried in the plaintiffs action against the defendant if the plaintiff succeeds!... [25] Further, to exclude the third parties from participating in the process until after the common issues trial or certification and bind them to the findings and rulings in those proceedings as proposed by the plaintiff would be untenable and a denial of natural justice in the circumstances of this case. Costs were awarded in the cause on the motion against the unsuccessful Plaintiff. Discovery Generally, discovery is the same as set out in the Rules of Court in New Brunswick and restricted to the parties unless leave is obtained. 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.

4 4 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 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. Central Registry The CBA has organized a website as a registry for class actions in all provinces. Although not yet mandatory, if you are contemplating starting an action, or want to review actions currently underway, there is a website that you can access at Actions/Search/ClassActions_Search/Search/default.aspx In New Brunswick filing Notice of action with the Registry is not mandatory. N.B. Current Activity To date, our firm is involved in five class actions as Plaintiff, four of which are basically National actions being run out of British Columbia and Ontario. In three of the four actions, we are members of counsel groups made up of members from most of the provinces except Quebec and in one action as agents for the counsel group. There are at least two other class actions started as well by other firms. Fees (On Success)

5 5 Since most of the legal work is done in other provinces, the potential share of any earned fees in the Atlantic Provinces is much less. Fees are usually shared on a pro-rata basis based on time spent on the file. On the positive side, the risk is also less in the event the action is not successful. Competition is much more intense to be part of the counsel group than to represent individual plaintiffs. Fees are set by the court for the Access to Justice portion of the action, and generally exceed actual hours expended by some multiplier set by the Court because of the risks involved and are a first charge on the award. If the settlement is approved, the fees can be paid to counsel. Individual Class Member Claims When representing individual class members, fees are normally earned based on contingency retainer agreements and limited to what is allowed in your jurisdiction. This aspect requires more contact with clients to assist in recovery of their entitlement from the settlement monies set aside by the Court for that purpose.