Canada: Who Can Be A Representative Plaintiff Under Ontario’s "Class Proceedings Act, 1992"?

Last Updated: January 17 2012
Article by Lisa C. Munro


Despite the voluminous case law on certification of class actions under the Ontario Class Proceedings Act, 1992 ("CPA")1, surprisingly little of it considers the qualities of an appropriate representative plaintiff. What emerges clearly, however, is that the threshold for appointing a suitable class representative has been set fairly low as courts apply the criteria listed in s. 5(1)(e) of the CPA:

  1. there is a representative plaintiff who would fairly and adequately represent the interests of the class;
  2. the representative plaintiff has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding; and
  3. the representative plaintiff does not have, on the common issues for the class, an interest in conflict with the interests of the other class members.

It appears that, in most cases, the proposed representative plaintiff will be subject to little scrutiny and certification will be granted and the proposed representative plaintiff appointed so long as the remaining four certification criteria set out in s. 5(1) of the CPA are met.2

The decision of the Supreme Court of Canada in Western Canadian Shopping Centres Inc. v. Dutton3 (along with two other Supreme Court of Canada decisions on class actions, referred collectively to as the "class actions trilogy", in which that Court recognized class actions even in jurisdictions without legislation governing class actions4) articulated the following three factors to be considered to ensure that the proposed representative plaintiff will "adequately represent the class" and "vigorously and capably prosecute the interests of the class": motivation of the representative plaintiff; competence of class counsel; and capacity of the representative plaintiff to bear the costs that may be incurred by the representative in particular (as opposed to by counsel or by the class members generally).5

Together, these factors address the policy objectives of class actions, which are: judicial economy; access to justice (for plaintiffs); and behaviour modification (of defendants). The Supreme Court of Canada class actions trilogy has confirmed that class action legislation should be interpreted generously and in a purposive manner to give effect to these policy objectives. The Court must strike a balance between efficiency and fairness, that is, it should take into account the benefits the class action offers in the circumstances of the case as well as any unfairness that class proceedings may cause.6 Therefore, the determination of who will be a suitable class representative should be considered in that context.


(a) Generally

Class proceedings are often different from typical litigation in which a lawyer is approached and retained by a specific party to commence an action. In class proceedings, it is often the case that the lawyer has identified a meritorious potential class action (arising out of a product liability or other mass tort claim, for example) but no representative plaintiff or has been approached by a potential representative plaintiff who the lawyer perceives to be unsuitable. The process of searching for an appropriate representative plaintiff has sometimes been referred to derogatively as "trolling". In fact, there is nothing inherently improper in advertising for or interviewing and seeking out a suitable class representative for a meritorious case. Plaintiffs' counsel must always remember that evidence of the origin of the class action and the motivation and commitment of the proposed representative may be put before the Court (by the defendant, for example, on a certification motion or settlement approval motion) for scrutiny. The courts play a vital role in preventing an abuse of process in their broad discretion under the CPA.7 For example, as the case law referred to below demonstrates, it is improper to commence a class action naming a "token" representative plaintiff simply to toll the limitation period while a suitable class representative is found. Nor will a court countenance a "trial and error" approach whereby a proposed representative plaintiff is put forward while there are other representatives available "just in case". Moreover, the Court will be alive to the possibility of a "strike suit" (an unmeritorious claim advanced for the sole purpose of pressuring the defendant to settle), or a case where the benefits to be achieved in a settlement flow only to counsel and not to class members.8

As a practical matter, plaintiffs' class counsel will want a representative plaintiff who meets all the requirements set out in the CPA and who is willing and able to assume the various obligations and responsibilities associated with acting as a representative of the entire class, including some or all of the following:

  • instructing counsel;
  • reading the Statement of Claim;
  • participating in oral and documentary discovery (as required under s. 15 of the CPA);
  • submitting to examination before the hearing of a motion or application, if necessary (as required under s. 16 of the CPA);
  • giving notice of certification (as required under s. 17 of the CPA ), although this is ordinarily done by counsel under the supervision of the Court;
  • accepting the liability for costs [s. 31(2) of the CPA] subject, of course, to any funding provided by the Class Proceedings Fund or an indemnity offered by class counsel; and
  • communicating with the media.

In only a few cases has the representative plaintiff been compensated for time spent in prosecuting the action on behalf of class members.9

(b) Requirements under s. 5(1)(e) of the CPA

(i) there is a representative plaintiff who would fairly and adequately represent the interests of the class

This rather vague requirement has received little judicial comment but seems to refer to the personal characteristics of the proposed representative plaintiff and involves a consideration of whether there is anything that would make her/him unsuitable. It appears likely that the Court will consider the proposed representative plaintiff's "motivation" - a criterion referred to by the Supreme Court of Canada in the class actions trilogy - under this branch of the test.

The requirement that the representative plaintiff "fairly and adequately" represent the interests of the class obviously means that the proposed representative plaintiff must be a member of an identifiable class which is capable of being represented by one person.10 Under the comparable British Columbia, Newfoundland, and Saskatchewan legislation, the Court may appoint a person who is not a representative of the class, but only if it is necessary to do so to avoid a substantial injustice to the class.11

The Ontario case law has provided the following limited guidance on whether a proposed representative plaintiff will "fairly and adequately" represent the interests of the other members of the class.

The characteristics of the representative plaintiff need not be exactly the same as those of the other members of the class where most of the facts pertaining to the issues to be tried are common to all and economy favours single representation12.

Nor will a proposed representative plaintiff be disqualified for having a less than complete knowledge of the intricacies of the civil litigation process or of the legal issues involved in the action and the proposed class proceeding so long as he or she has a more than adequate understanding of the issues in the litigation, his or her concerns are typical of the concerns of other members of the class, and he or she is clearly able to instruct counsel13.

The representative can be more or less sophisticated than the average class member and need not be "typical"; however, the greater the number of differences between the representative plaintiff and other class members, the greater the likelihood for a conflict to arise or that there will be doubt that the representative plaintiff will fairly and adequately advance the class claims as their interests diverge.14 As Winkler J. stated in Carom v. Bre-X Minerals Ltd.15:

...In the present case, the trading activity of the representative plaintiff is idiosyncratic. This has two consequences: first, it produces no common issues; second, the representative plaintiff may not be able to meet the test of being able to adequately and fairly represent the class. While a representative plaintiff need not be typical, he or she cannot be so distinctive, in the face of the class definition, as to produce a result in law flowing from a common issue trial which could be more adverse to class members than an individual trial would be. Where the cause of action, or the common issues proposed, depend on individual characteristics of the plaintiff rather than a commonality within the class, then the approval of a distinctive plaintiff as the class representative works a manifest unfairness to the plaintiff class. This is the raison d'etre of the requirement for commonality which is the underpinning of the statute.

A long-standing animosity between the proposed representative plaintiff and the defendant will not compromise the ability of the proposed representative plaintiff to fairly and adequately represent the interests of the class or create an interest in conflict with the interests of the other class members16; however, where the proposed representative plaintiff has demonstrated a strong antipathy towards a substantial majority of members in the proposed class, he or she is not a suitable representative plaintiff17.

The proposed representative plaintiff must also be credible in the sense that he or she has not been "caught out" in an inconsistency between his or her affidavit and cross-examination evidence. In one case, it was suggested that the other class members might not want to be represented by someone whose credibility with the Court was suspect.18

In addition, the law in Ontario (as distinct from the law in British Columbia19) is that, for any defendant there must be at least one representative plaintiff who has a reasonable cause of action disclosed in the pleadings against that defendant. That principle is established in the following cases.

In Ragoonanan Estate v. Imperial Tobacco Canada Ltd.20, the house of one of the plaintiffs was destroyed and her daughter and brother killed in a fire caused by an unextinguished cigarette allegedly manufactured by defendant Imperial Tobacco. Two proposed representative plaintiffs brought an action under the CPA against Imperial Tobacco as well as two other cigarette manufacturers. The essence of the plaintiffs' claim was that all three of the defendants manufactured an inherently dangerous product when they knew how to manufacture a safer product that had a reduced propensity for igniting upholstered furniture and mattress fires. The defendants moved under Rule 21.01(1)(b) to strike the pleading on the ground that it disclosed no reasonable cause of action. Cumming J. found that, because the CPA is merely a procedural statue and cannot create substantive rights, the pleading could not survive a Rule 21 motion where defendants were named against whom the representative plaintiff had no cause of action:

In my view, and I so find, it is not sufficient in a class proceeding, for the purpose of meeting the requirement of rule 21.01(1)(b), if the pleading simply discloses a "reasonable cause of action" by the representative plaintiff against only one defendant and then puts forward a similar claim by a speculative group of putative class members against the other defendants.

At the earlier point in time of the rule 21.01(1)(b) motion, the representative plaintiff is the only plaintiff party to the pleading. The putative class members cannot be considered parties until certification is granted by the court. In addition, in the case at hand there cannot be any certainty that there are any persons with a cause of action against [the other two tobacco manufacturers]. There cannot be a cause of action against a defendant without a plaintiff who has that cause of action. In my view, for every named defendant there must be a party plaintiff with a cause of action against that defendant to meet the Rule 21 threshold.

... Until there is a plaintiff who has such a cause of action, it is entirely speculative as to whether there is anyone with such a claim. A defendant should not be made subject to a speculative claim which presumes that one or more unknown persons possibly has a cause of action. It would be wrong to put a defendant to the expense of the litigation process if there is no reasonable cause of action against that defendant on the face of the pleading.21

The decision of the Ontario Court of Appeal in Hughes v. Sunbeam Corp. (Canada) Ltd.22 is now considered to be the leading authority propounding the principle first established in Ragoonanan . The plaintiff purchased an ionization smoke alarm, which he claimed was defective and unreliable. He began a class action on behalf of all persons in Canada who bought ionization smoke alarms manufactured by several defendants, whom he alleged had designed, manufactured, tested, and promoted the smoke detectors and then placed them into the stream of commerce, knowing they were defective. The defendants brought a motion under Rule 21.01(1)(b) to strike out the statement of claim as disclosing no reasonable cause of action. The Court of Appeal found that the representative plaintiff could advance a cause of action against only the manufacturer of the ionization smoke alarm he purchased. It echoed the words of Nordheimer J. in another case23 that, for each defendant who is named in a class action, there must be a representative plaintiff who has a valid cause of action against that defendant.

The Ragoonanan principle was considered in a somewhat different context in Boulanger v. Johnson and Johnson Corp.,24 in which the plaintiffs brought an action on behalf of all persons in Canada and their relatives who used the prescription drug Prepulsid, which was manufactured and distributed by the defendants and was alleged to have been associated with cases of heart rhythm abnormalities and death. The proposed class action claimed damages and advanced claims based upon the subrogated interests of the Ontario Health Insurance Plan ("OHIP") and the provincial health insurance plans for class members residing outside Ontario. The defendants relied upon the decision in Ragoonanan in asserting that the representative plaintiff could not advance a claim for relief under the laws of other provinces because she had no claim under those laws as she had received no medical treatment outside Ontario.

Nordheimer J. stated that he agreed with Cumming J.'s decision in Ragoonanan, however, he stated that the claims in this case were different because,

[t]hey involve the consideration of whether a defendant, who is the subject of a proper claim by the representative plaintiff arising from a valid cause of action, can also be subject to claims for different forms of relief that the representative plaintiff herself does not have ... In other words, this is not a situation like in Ragoonanan where defendants were named in an action although the representative plaintiff had no actual claim against them. Here, there is a valid cause of action against the named defendants. The question is the scope of the relief that may be claimed against them.25
[Emphasis added]

Further, Nordheimer J. noted that s. 2(1) of the CPA states that "one or more members of a class of persons may commence a proceeding in the Court on behalf of the members of the class" and that the use of the words "on behalf of" suggest that it was intended under the CPA that the representative plaintiff would advance claims for class members which the representative plaintiff might not have in his or her own personal capacity. Moreover, s. 6 of the CPA provides that, inter alia, the Court shall not refuse to certify a class proceeding solely because the relief claimed relates to separate contracts involving different class members and different remedies are sought for different class members.

Although the Divisional Court confirmed both Nordheimer J.'s result and reasoning, unfortunately, its dicta confused the distinction Nordheimer J. made between a cause of action and the scope of relief being sought26. The Divisional Court said that Rule 21.01(1)(b) must be read in light of s. 35 of the CPA and s. 66(3) of the Courts of Justice Act27 and stated that the Court must bear in mind that the legislature has specifically approved of a plaintiff asserting causes of action which are not that plaintiff's personal causes of action which are asserted by the plaintiff on behalf of class members:

... [t]he scheme of the CPA demonstrates the legislature's intention to permit a representative plaintiff, prior to the certification motion, to plead causes of action which are not the representative plaintiff's personal causes of action but which are the causes of action of members of the class, asserted by the plaintiff in a representative capacity28.

It found that the claims by members of the class on behalf of their provincial health insurers were fundamentally the same claims and that, as a result, claims advanced by the representative plaintiff on behalf of class members, including claims advanced on behalf of their provincial health insurers, were very similar to the claims advanced by the representative plaintiff personally, which included her claim on OHIP's behalf. Therefore, it could not be said for the purposes of Rule 21.01(1)(b) that the claims plainly and obviously did not have some chance of meeting the "common issues" criterion for certification.

At first instance, Nordheimer J. also considered the practical effect of the defendants' position on the manageability of national class actions:

I would observe, in passing, that this challenge to the pleading involves to some degree a challenge to the existence of national class actions themselves because, if the defendants' contention is correct, then in a number of situations in order to have a national class action it would be necessary to have so many representative plaintiffs for the purpose of directly covering the various forms of relief that may arise in the ten provinces and three territories, that the action would practically become unworkable. Indeed, the defendants' position, taken to its extreme, would require, in every national class action, the presence of a representative plaintiff from every province and territory where any member of the putative class resided since the basis for the challenge to the right to claim different forms of relief is one that can be made regardless of whether the relief arises from provincial legislation or from common law. I would note that, to date, the presence of national class actions has been generally recognized and accepted29.

One could postulate that the Ontario rule may, indeed in some cases, make a proposed class action too unwieldy for certification where there are multiple defendants, requiring multiple representative plaintiffs. One court has found that this problem cannot be remedied by use of a defendants' class. In Lupsor Estate v. Middlesex Mutual Insurance Co.30, Winkler J. stated that Hughes v. Sunbeam Corp. (Canada) established the clear principle that, in a proposed class action, there must be a representative plaintiff with a claim against each defendant and that this principle is to apply with equal force and effect to a defendant class. Otherwise, it would be effectively nullified because a plaintiff could circumvent it merely by asserting a defendant class, as opposed to naming each defendant individually, thus avoiding the necessity of having a plaintiff for each defendant against which the cause of action is asserted. He found that a plaintiff could not do indirectly what it could not achieve directly31.

This is one area where the jurisprudence in Ontario and British Columbia have diverged, despite the similarities in the class actions legislation. British Columbia courts have permitted a proposed class action to proceed against defendants against whom no representative plaintiff has a claim.32 The British Columbia Supreme Court remarked recently in Mackinnon v. National Money Mart Co. as follows:

The defendants say that they should not be forced to defend an action when no plaintiff having a contract with that particular defendant has made a claim. With respect, the same argument applies to all class proceedings: only one person has made a claim, so why should a defendant have to deal with more than that person's claim? The answer, of course, is that the Act allows it. Similarly, the Act allows a class action where there is a cause of action and does not require that a representative plaintiff have a personal cause of action against each defendant. To impose such a requirement is simply to impose a procedural hurdle. It does not advance the policy or purpose of the Class Proceedings Act...33

However, as Winkler J. observed in Hughes v. Sunbeam Corporation (Canada) Ltd.34, none of the British Columbia cases was analogous since they were not decided within the context of a motion to strike the statement of claim as disclosing no reasonable cause of action. The result is that the Ontario principle appears to be more analytically sound. The jurisprudence in British Columbia may not yet be settled as this matter is currently before that province's Court of Appeal.35

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

This requirement is tied to the requirement, under s. 5(1)(d) of the CPA , that the Court must be satisfied that a class proceeding is the "preferable procedure" for resolution of the common issues. The litigation plan is typically prepared by plaintiffs' counsel and, therefore, has little to do with the characteristics of the proposed representative plaintiff. The production of a workable litigation plan serves two useful purposes: it assists the Court in determining whether a class proceeding is indeed the preferable procedure; and it allows the Court to determine whether the litigation itself is manageable in its constituted form36.

As both Ontario Courts and counsel have become more experienced with class actions, they have become better able to articulate the requirements of a good litigation plan, recognizing that the level of detail required will depend upon the complexity of the matter. It cannot simply be a recitation of the steps that would occur in any litigation.

Some matters that may be required for an acceptable litigation plan are as follows:

  • what investigations have been or are to be undertaken;
  • details as to the knowledge, skill, and expertise of the class counsel involved;
  • an analysis of the resources required to litigate the class members' claims to conclusion and an indication that the resources available are sufficiently commensurate given the size and complexity of the proposed class and the issues to be determined;
  • the steps that are going to be taken to identify necessary witnesses and to locate them and gather their evidence;
  • the collection of relevant documents from members of the class as well as others;
  • the exchange and management of documents produced by all parties;
  • ongoing reporting to the class;
  • mechanisms for responding to inquiries from class members;
  • whether the discovery of individual class members is likely and, if so, the intended process for conducting those discoveries;
  • the method for dealing with the claims of extra-provincial plaintiffs, if they are included in the class;
  • the need for experts and, if needed, how those experts are going to be identified and retained;
  • if individual issues remain after the determination of the common issues, what plan is proposed for resolving those individual issues; and
  • a plan for how damages and other forms of relief are to be assessed or determined after the common issues have been decided.37

If all other requirements for certification are met, the Court may adjourn the certification motion to permit the plaintiff to prepare a better litigation plan or certification may be granted on a conditional basis38.

For obvious reasons, a litigation plan will not be required if certification is sought for the purpose of enabling the Court to approve a settlement agreement between the parties which will bind all members of the class pursuant to s. 29(2) of the CPA.39 Instead, the Court will have to be satisfied that the proposed settlement sets out a workable method for administering the proceeds of settlement.40

(iii) the representative plaintiff does not have, on the common issues for the class, an interest in conflict with the interests of the other class members

The Court must consider each case on its facts to determine whether there is a disqualifying conflict between the proposed representative plaintiff and the other class members. This is an issue that appears to be raised by defendants frequently on certification motions. Some general principles have emerged from the case law.

The alleged conflict cannot merely be hypothetical. In a case where the Court considered that a potential conflict could arise depending upon whether settlement negotiations take place and on proposals then under consideration, it was not prepared to disqualify the proposed representative plaintiff, bearing in mind that the Court must approve any settlement.41

However, where those differences may result in the possibility that the proposed representative plaintiff and the other class members will have an interest in a different resolution to the proposed class action and so long as there is evidence to support that possibility, there is a potential for conflict which will disqualify the proposed representative plaintiff. In Pearson v. Inco, the defendant operated a metal refinery, which the plaintiffs alleged continuously emitted hazardous substances into the environment which were alleged to have caused severe damage to the physical and emotional health of the proposed class members and extensive damage to their lands, homes, and businesses. Nordheimer J. found that the proposed representative plaintiff was from the community that was alleged to have been the most affected by the contamination and, therefore, would have one of the largest claims. He described the potential conflict to which this gave rise as follows:

The members of that community likely have an interest in pursuing these claims in a much more aggressive fashion, and to a much greater extent, than would individuals who are less affected by the contamination. Put another way, those individuals who live in areas where the level of contamination is much lower, and who would, as a result, more likely have very small claims, might well be amenable to a resolution of those claims of a much different character than would the individuals with the larger claims. It seems to me, therefore, that there is an obvious potential for conflict between these two groups42.

Without a mechanism to deal with conflicts if they were to arise, the Court determined that the plaintiff was not an adequate representative of the class.

There will be a conflict between the proposed representative plaintiff and the other class members if success for the representative plaintiff does not build in success for all class members. In Carom v. Bre-X Minerals Ltd.43, Winkler J. found that conflicts arose because of the causes of action pleaded. In the main action, the plaintiffs advanced a claim in conspiracy against one of the categories of defendants but not against the other. However, proof of the conspiracy claim against the first category of defendants in the main action could very well serve as the defence to the claims against the second category of defendants. Winkler J. found that, in such circumstances, the representative plaintiffs advancing the separate claims could not help but have a conflict on the common issues.

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1 S.O. 1992, c. 6

2 Those criteria are as follows:

  1. the pleadings disclose a cause of action;
  2. there is an identifiable class of two or more persons that would be represented by the representative plaintiff;
  3. the claims of the class members raise common issues; and
  4. a class proceeding would be the preferable procedure for the resolution of the common issues.

3 [2001] 2 S.C.R. 534

4 The other two cases in the class actions trilogy are: Hollick v. Toronto (City), [2001] 3 S.C.R. 158; and Rumley v. British Columbia, [2001] 3 S.C.R. 184

5 Western Canadian Shopping Centres Inc. v. Dutton, supra note 3, at 555

6 Western Canadian Shopping Centres Inc. v. Dutton, supra note 3, at 549-550, 556; and Hollick v. Toronto (City), supra note 4

7 Section 12 provides that the Court, "may make an order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate."

8 Epstein v. First Marathon Inc., [2000] O.J. No. 452 (S.C.J.)

9 Windisman v. Toronto College Park Ltd. (1996), 28 O.R. (3d) 29 (Gen. Div.); Mondor v. Fisherman; CC&L Dedicated Enterprise Fund (Trustee of) v. Fisherman, [2002] O.J. No. 1855; Scott v. Ontario Business College (1977) Ltd., [2004] O.J. No. 1749 (S.C.J.)

10 Bellaire v. Independent Order of Foresters, [2004] O.J. No. 2242 (S.C.J.)

11 In Metera v. Financial Planning Group, [2003] A.J. No. 468 (Q.B.), the Court stated at para. 61, "this is undoubtedly to cover the situation where some or all class members are under age, or... are medically disabled from prosecuting the action themselves." See Class Proceedings Act, R.S.B.C. 1996, c. 50, s. 2(4); Class Action Act, S.N.L. 2001, c. C-18.1, s. 3(4); The Class Actions Act, S.S. 2001, c. C-12.01; Class Proceedings Act, S.A. 2003, c. C- 16.5, s. 2(4); Class Proceedings Act, C.C.S.M. c. C130; An Act Respecting the Class Action, R.S.Q., c. R.-2.1. It appears that in Alberta and Quebec the representative plaintiff may be a non-profit organization.

12 Anderson v. Wilson (1999), 44 O.R. (3d) 673 (C.A.) at 682-684

13 Maxwell v. MLG Ventures Ltd. (1995), 7 C.C.L.S. 155 (Ont. Gen. Div.) at para. 10

14 Abdool v. Anaheim Management Ltd. (1995), 21 O.R. (3d) 453 (Div. Ct.) at 464- 465, 506-507, 554

15 (1999), 44 O.R. (3d) 173 (S.C.J.) at 223

16 Ewing v. Francisco Petroleum Enterprises Inc. (1994), 29 C.P.C. (3d) 212 at para. 10 per Haines J.

17 Nixon v. Canada (Attorney General) (2002), 21 C.P.C. (5th) 269 at paras. 10-11 per Malloy J.

18 Shaw v. BCE Inc. (2003), 42 B.L.R. (3d) 107 at para. 25 per Farley J.

19 See p. 15 of this paper

20 (2000), 51 O.R. (3d) 603 (S.C.J.) at paras. 14-60 per Cumming J.

21 Ibid . paras. 54-56

22 (2002), 61 O.R. (3d) 433 (C.A.)

23 Boulanger v. Johnson and Johnson (2002), 14 C.C.L.T. (3d) 233 (S.C.J.) as referred to in Hughes v. Sunbeam Corp. (Canada) Ltd., ibid.

24 Supra note 23

25 Supra note 23, at para. 22

26 (2003), 64 O.R. (3d) 208 (Div. Ct.)

27 Ibid. at 215-218

Section 35 of the CPA states, "[t]he rules of court apply to class proceedings".

Section 66 of the Courts of Justice Act, R.S.O. 1990, c. 43 provides for the Rules of Court, stating:

66.(1) Subject to the approval of the Lieutenant Governor in Council, the Civil Rules Committee may make rules for the Court of Appeal and the Superior Court of Justice in relation to the practice and procedure of those courts in all civil proceedings, including family law proceedings.

(2) The Civil Rules Committee may make rules for the courts described in subsection (1), even though they alter or conform to the substantive law, in relation to,

(a) conduct of proceeding in the courts ...
(e) pleadings ...
(x) any matter that is referred to in an Act as provided for by rules of court.

(3) Nothing in subsection (1) or (2) authorizes the making of rules that conflict with an Act, but rules may be made under subsection (1) and (2) supplementing the provisions of an Act in respect of practice and procedure.

28 Ibid. at 216

29 Supra note 23, at para 23

30 [2003] O.J. No. 3745 (Div. Ct.)

31 Ibid. at para. 8

32 See, for example, Furlan v. Shell Oil Co., [2000] B.C.J. No. 1334 (C.A.); Campbell v. Flexwatt, [1997] B.C.J. No. 2477 (C.A.); and Mackinnon v. National Money Mart Co., [2004] B.C.J. No. 176 (S.C.); leave granted (2004), 44 C.P.C. (5th) 72 (B.C. C.A.)

33 Ibid., at para. 8

34 Supra note 22, at 440

35 Mackinnon v. National Money Mart Co., supra note 32

36 Carom v. Bre-X Minerals Ltd., supra note 15, at 203

37 Carom v. Bre-X Minerals Ltd., supra note 15, at 203; Pearson v. Inco Ltd., (2002), 33 C.P.C. (5th) 264 (Ont. S.C.J.) at para. 144 per Nordheimer J.; Caputo v. Imperial Tobacco Ltd. (2004), 236 D.L.R. (4th) 348 (Ont. S.C.J.) at para. 78 per Winkler J.; and Bellaire v. Independent Order of Foresters, supra note 10, at para. 53 per Nordheimer J.

38 s. 5(4) CPA; Caputo v. Imperial Tobacco Ltd., supra, at para. 79 per Winkler J.; and Segnitz v. Royal & Sun Alliance Insurance Co. of Canada (2003), 66 O.R. (3d) 238 per Haines J.

39 Coleman v. Bayer, [2004] O.J. No. 1974 (S.C.J.) per Cullity J.

40 McKrow v. Manufacturers Life Insurance Co. (1998), 9 C.C.L.I. (3d) 161 (Ont. Gen. Div.) at para. 8

41 Kranjcec v. Ontario (2004), 69 O.R. (3d) 231 (S.C.J.) at 255 per Cullity J.

42 Pearson v. Inco., supra note 38, at para. 146

43 Supra note 15, at 224

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions