PARTIES AND JOINDER
RULE 5 JOINDER OF CLAIMS AND PARTIES
JOINDER OF CLAIMS
5.01 (1) A plaintiff or applicant may in the same proceeding join any claims the plaintiff or applicant has against an opposite party.
(2) A plaintiff or applicant may sue in different capacities and a defendant or respondent may be sued in different capacities in the same proceeding.
(3) Where there is more than one defendant or respondent, it is not necessary for each to have an interest in all the relief claimed or in each claim included in the proceeding.
JOINDER OF PARTIES
Multiple Plaintiffs or Applicants
5.02 (1) Two or more persons who are represented by the same solicitor of record may join as plaintiffs or applicants in the same proceeding where,
(a) they assert, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences;
(b) a common question of law or fact may arise in the proceeding; or
(c) it appears that their joining in the same proceeding may promote the convenient administration of justice.
Multiple Defendants or Respondents
(2) Two or more persons may be joined as defendants or respondents where,
(a) there are asserted against them, whether jointly, severally or in the alternative, any claims to relief arising out of the same transaction or occurrence, or series of transactions or occurrences;
(b) a common question of law or fact may arise in the proceeding;
(c) there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief;
(d) damage or loss has been caused to the same plaintiff or applicant by more than one person, whether or not there is any factual connection between the several claims apart from the involvement of the plaintiff or applicant, and there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief or the respective amounts for which each may be liable; or
(e) it appears that their being joined in the same proceeding may promote the convenient administration of justice.
JOINDER OF NECESSARY PARTIES
General Rule
5.03 (1) Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding.
Claim by Person Jointly Entitled
(2) A plaintiff or applicant who claims relief to which any other person is jointly entitled with the plaintiff or applicant shall join, as a party to the proceeding, each person so entitled.
Claim by Assignee of Chose in Action
(3) In a proceeding by the assignee of a debt or other chose in action, the assignor shall be joined as a party unless,
(a) the assignment is absolute and not by way of charge only; and
(b) notice in writing has been given to the person liable in respect of the debt or chose in action that it has been assigned to the assignee.
Power of Court to Add Parties
(4) The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be added as a party.
Party Added as Defendant or Respondent
(5) A person who is required to be joined as a party under subrule (1), (2) or (3) and who does not consent to be joined as a plaintiff or applicant shall be made a defendant or respondent.
Relief Against Joinder of Party
(6) The court may by order relieve against the requirement of joinder under this rule.
MISJOINDER, NON-JOINDER AND PARTIES INCORRECTLY NAMED
Proceeding not to be Defeated
5.04 (1) No proceeding shall be defeated by reason of the misjoinder or non-joinder of any party and the court may, in a proceeding, determine the issues in dispute so far as they affect the rights of the parties to the proceeding and pronounce judgment without prejudice to the rights of all persons who are not parties.
Adding, Deleting or Substituting Parties
(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
Adding Plaintiff or Applicant
(3) No person shall be added as a plaintiff or applicant unless the person's consent is filed.
RELIEF AGAINST JOINDER
5.05 Where it appears that the joinder of multiple claims or parties in the same proceeding may unduly complicate or delay the hearing or cause undue prejudice to a party, the court may,
(a) order separate hearings;
(b) require one or more of the claims to be asserted, if at all, in another proceeding;
(c) order that a party be compensated by costs for having to attend, or be relieved from attending, any part of a hearing in which the party has no interest;
(d) stay the proceeding against a defendant or respondent, pending the hearing of the proceeding against another defendant or respondent, on condition that the party against whom the proceeding is stayed is bound by the findings made at the hearing against the other defendant or respondent; or
(e) make such other order as is just.
RULE 6 CONSOLIDATION OR HEARING TOGETHER
WHERE ORDER MAY BE MADE
6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,
(a) they have a question of law or fact in common;
(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or
(c) for any other reason an order ought to be made under this rule,
the court may order that,
(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or
(e) any of the proceedings be,
(i) stayed until after the determination of any other of them, or
(ii) asserted by way of counterclaim in any other of them.
(2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of a notice of listing for trial and abridge the time for placing an action on the trial list.
DISCRETION OF PRESIDING JUDGE
6.02 Where the court has made an order that proceedings be heard either at the same time or one immediately after the other, the judge presiding at the hearing nevertheless has discretion to order otherwise.
RULE 7 PARTIES UNDER DISABILITY
REPRESENTATION BY LITIGATION GUARDIAN
Party Under Disability
7.01 (1) Unless the court orders or a statue provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.
Substitute Decisions Act Applications
(2) Despite subrule (1), an application under the Substitute Decisions Act, 1992 may be commenced, continued and defended without the appointment of a litigation guardian for the respondent in respect of whom the application is made, unless the court orders otherwise.
Previously Appointment Committees
(3) A committee named by order or statute before April 3, 1995 is the litigation guardian of the person in respect of whom the order was made was made, and shall be referred to as the litigation guardian for all purposes.
(4) Subrule (3) also applied to the Public Guardian and Trustee acting under an order made under subsection 72(1) or (2) of the Mental Health Act as it read before April 3, 1995.
LITIGATION GUARDIAN FOR PLAINTIFF OR APPLICANT
Court Appointment Unnecessary
7.02 (1) Any person who is not under disability may act, without being appointed by the court, as litigation guardian for a plaintiff or applicant who is under disability, subject to subrule (1.1).
Mentally Incapable Person or Absentee
(1.1) Unless the court orders otherwise, where a plaintiff or applicant,
(a) is mentally incapable and has a guardian with authority to act as limitation guardian in the proceeding, the guardian shall act as litigation guardian;
(b) is mentally incapable and does not have a guardian with authority to act as litigation guardian in the proceeding, but has an attorney under a power of attorney with that authority, the attorney shall act as litigation guardian;
(c) is an absentee and a committee of his or her estate has been appointed under the Absentees Act, the committee shall act as litigation guardian;
(d) is a person in respect of whom an order was made under subsection 72(1) or (2) of the Mental Health Act as it read before April 3, 1995, the Public Guardian and Trustee shall act as litigation guardian.
Affidavit to be Filed
(2) No person except the Children's Lawyer or the Public Guardian and Trustee shall act as litigation guardian for a plaintiff or applicant who is under disability until the person has filed an affidavit in which the person,
(a) consents to act as litigation guardian in the proceeding;
(b) confirms that he or she has given written authority to a named solicitor to act in the proceeding;
(b.1) provides evidence concerning the nature and extent of the disability;
(b.2) in the case of a minor, state the minor's birth date;
(c) states whether he or she and the person under disability are ordinarily resident in Ontario;
(d) sets out his or her relationship, if any, to the person under disability;
(e) states that he or she has no interest in the proceeding adverse to that of the person under disability; and
(f) acknowledges that he or she has been informed of his or her liability to pay personally any costs awarded against him or her or against the person under disability.
(3) A person who files a certificate under subrule (2) shall
(a) swear an affidavit under that subrule;
(b) keep the affidavit; and
(c) in the request of the court or of a party, produce the affidavit to the court or the party as the case may.
LITIGATION GUARDIAN FOR DEFENDANT OR RESPONDENT
Generally must be Appointed by Court
7.03 (1) No person shall act as a litigation guardian for a defendant or respondent who is under disability until appointed by the court, except as provided in subrule (2), (2.1)or (3).
Where Minor Interested in Estate or Trust
(2) Where a proceeding is against a minor in respect of the minor's interest in an estate or trust, the Children's Lawyer shall act as the litigation guardian of the minor defendant or respondent, unless the court orders otherwise.
Mentally Incapable Person or Absentee
(2.1) Unless the court orders otherwise, where a proceeding is against,
(a) a mentally incapable person who has a guardian with authority to act as litigation guardian in the proceeding, the guardian shall act as litigation guardian;
(b) a mentally incapable person who does not have a guardian with authority to act as litigation guardian in the proceeding, but has an attorney under a power of attorney with that authority, the attorney shall act as litigation guardian;
(c) an absentee, and a committee of his or her estate has been appointed under the Absentees Act, the committee shall act as litigation guardian;
(d) is a person in respect of whom an order has been made under subsection 72(1) or (2) of the Mental Health Act as it read before April 3, 1995, the Public Guardian and Trustee shall act as litigation guardian.
Affidavit by guardian or attorney
(2.2) A person who has authority under subrule (2.1) to act as litigation guardian shall, before acting in that capacity in a proceeding, file an affidavit containing the information referred to in subrule (10).
3) A person who files a certificate under subrule (2) shall
(a) swear an affidavit under that subrule;
(b) keep the affidavit; and
(c) in the request of the court or of a party, produce the affidavit to the court or the party as the case may.
Defending Counterclaim
(3) A litigation guardian for a plaintiff may defend a counterclaim without being appointed by the court.
Motion by Person Seeking to be Litigation Guardian
(4) A person who seeks to be the litigation guardian of a defendant or respondent under disability shall move to be appointed by the court before acting as litigation guardian.
Motion by Plaintiff or Applicant to Appoint Litigation Guardian
(5) Where a defendant or respondent under disability has been served with an originating process and no motion has been made under subrule (4) for the appointment of a litigation guardian, a plaintiff or applicant, before taking any further step in the proceeding, shall move for an order appointing a litigation guardian for the party under disability.
(6) At least ten days before moving for the appointment of a litigation guardian, a plaintiff or applicant shall serve a request for appointment of litigation guardian (Form 7A) on the party under disability personally or by an alternative to personal service under rule 16.03.
(7) The request may be served on the party under disability with the originating process.
(8) A motion for the appointment of a litigation guardian may be made without notice to the party under disability.
(9) A plaintiff or applicant who moves to appoint the Children's Lawyer or the Public Guardian and Trustee as the litigation guardian shall serve the notice of motion and the material required by subrule (10) on the Children's Lawyer or the Public Guardian and Trustee.
Evidence on Motion to Appoint
(10) A person who moves for the appointment of a litigation guardian shall provide evidence on the motion concerning,
(a) the nature of the proceeding;
(b) the date on which the cause of action arose and the date on which the proceeding was commenced;
(c) service on the party under disability of the originating process and the request for appointment of litigation guardian;
(d) the nature and extent of the disability;
(e) in the case of a minor, the minor's birth date;
(f) whether the person under disability ordinarily resides in Ontario; and
except where the proposed litigation guardian is the Children's Lawyer or the Public Guardian and Trustee, evidence,
(g) concerning the relationship, if any, of the proposed litigation guardian to the party under disability;
(h) whether the proposed litigation guardian ordinarily resides in Ontario;
(i) that the proposed litigation guardian,
(i) consents to act as litigation guardian in the proceeding;
(ii) is a proper person to be appointed;
(iii) has no interest in the proceeding adverse to that of the party under disability; and
(iv) acknowledges having been informed that he or she may incur costs that may not be recovered from another party.
REPRESENTATION OF PERSONS UNDER DISABILITY
Litigation guardian for party
7.04 (1) Unless there is some other proper person willing and able to act as litigation guardian for a party under disability, the court shall appoint,
(a) the Children's Lawyer, if the party is a minor;
(b) the Public Guardian and Trustee, if the party is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding and there is no guardian or attorney under a power of attorney with authority to act as litigation guardian;
(c) either of them, if clauses (a) and (b) both apply to the party.
Legal representation for minor who is not a party
(2) Where in the opinion of the court, the interests of a minor who is not a party require separate representation in a proceeding, the court may request and may by order authorize the Children's Lawyer, or some other proper person who is willing and able to act, to act as the person's legal representative.
Litigation guardian for incapable person who is not a party
(3) Where, in the opinion of the court, the interests of a mentally incapable person who is not a minor and not a party require separate representation in a proceeding, the court may appoint as the mentally incapable person's litigation guardian the Public Guardian and Trustee or some other proper person who is willing and able to act.
POWERS AND DUTIES OF LITIGATION GUARDIAN
7.05 (1) Where a party is under disability, anything that a party in a proceeding is required or authorized to do may be done by the party's litigation guardian.
(2) A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim.
(3) A litigation guardian other than the Children's Lawyer or the Public Guardian and Trustee shall be represented by a solicitor and shall instruct the solicitor in the conduct of the proceeding.
REMOVAL OR SUBSTITUTION OF LITIGATION GUARDIAN
7.06 (1) Where, in the course of a proceeding,
(a) a minor for whom a litigation guardian has been acting reaches the age of majority, the minor or the litigation guardian may, on filing an affidavit stating that the minor has reached the age of majority, obtain from the registrar an order to continue (Form 7B) authorizing the minor to continue the proceeding without the litigation guardian;
(b) a party under any other disability for whom a litigation guardian has been acting ceases to be under disability, the party or the litigation guardian may move without notice for an order to continue the proceeding without the litigation guardian.
and the order shall be served forthwith on every other party and on the litigation guardian.
(2) Where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability, the court may substitute the Children's Lawyer, the Public Guardian and Trustee or any other person as litigation guardian.
NOTING PARTY UNDER DISABILITY IN DEFAULT
7.07 (1) A party under disability may not be noted in default under rule 19.01 without leave of a judge.
(2) Notice of a motion for leave under subrule (1) shall be served,
(a) on the litigation guardian of the party under disability; and
(b) on the Children's Lawyer, unless,
(i) the Public Guardian and Trustee is the litigation guardian, or
(ii) a judge orders otherwise.
DISCONTINUANCE BY OR AGAINST PARTY UNDER DISABILITY
7.07.1 (1) If a party to an action is under a disability, the action may be discontinued by or against the party under rule 23.01 only with leave of a judge.
(2) Notice of a motion for leave under subrule (1) shall be served,
(a) on the litigation guardian of the party under disability; and
(b) on the Children's Lawyer, unless,
(i) the Public Guardian and Trustee is the litigation guardian, or
(ii) a judge orders otherwise.
APPROVAL OF SETTLEMENT
Settlement Requires Judge's Approval
7.08 (1) No settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge.
(2) Judgment may not be obtained on consent in favour of or against a party under disability without the approval of a judge.
Where no Proceeding Commenced
(3) Where an agreement for the settlement of a claim made by or against a person under disability is reached before a proceeding is commenced in respect of the claim, approval of a judge shall be obtained on an application.
Material Required for Approval
(4) On a motion or application for the approval of a judge under this rule, there shall be served and filed with the notice of motion or notice of application,
(a) an affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement;
(b) an affidavit of the solicitor acting for the litigation guardian setting out the solicitor's position in respect of the proposed settlement;
(c) where the person under disability is a minor who is over the age of sixteen years, the minor's consent in writing, unless the judge orders otherwise; and
(d) a copy of the proposed minutes of settlement.
Notice of Children's Lawyer or Public Guardian and Trustee
(5) On a motion or application for the approval of a judge under this rule, the judge may direct that the material referred to in subrule (4) be served on the Children's Lawyer or on the Public Guardian and Trustee as the litigation guardian of the party under disability and may direct the Children's Lawyer or the Public Guardian and Trustee, as the case may be, to make an oral or written report stating any objections he or she has to the proposed settlement and making recommendations, with reasons, in connection with the proposed settlement.
MONEY TO BE PAID INTO COURT
7.09 (1) Any money payable to a person under disability under an order or a settlement shall be paid into court, unless a judge orders otherwise.
(2) Any money paid to the Children's Lawyer on behalf of a person under disability shall be paid into court, unless a judge orders otherwise.
RULE 8 PARTNERSHIPS AND SOLE PROPRIETORSHIPS
PARTNERSHIPS
8.01 (1) A proceeding by or against two or more persons as partners may be commenced using the firm name of the partnership.
(2) Subrule (1) extends to a proceeding between partnerships having one or more partners in common.
DEFENCE
8.02 Where a proceeding is commenced against a partnership using the firm name, the partnership's defence shall be delivered in the firm name and no person who admits he or she was a partner at any material time may defend the proceeding separately, except with leave of the court.
NOTICE TO ALLEGED PARTNER WHERE ENFORCEMENT SOUGHT AGAINST PARTNER
8.03 (1) In a proceeding against a partnership using the firm name, where a plaintiff or applicant seeks an order that will be enforceable personally against a person as a partner, the plaintiff or applicant may serve the person with the originating process, together with a notice to alleged partner (Form 8A) stating that the person was a partner at a material time specified in the notice.
(2) A person served as provided in subrule (1) shall be deemed to have been a partner at the material time, unless the person defends the proceeding separately denying that he or she was a partner at the material time.
PERSON DEFENDING SEPARATELY
8.04 A person becomes a party to the proceeding as a defendant or respondent, and the title of the proceeding shall be amended accordingly, if the person defends a proceeding separately,
(a) denying having been a partner at the material time; or
(b) with leave of the court under rule 8.02,
DISCLOSURE OF PARTNERS
8.05 (1) Where a proceeding is commenced by or against a partnership using the firm name, any other party may serve a notice requiring the partnership to disclose forthwith the names and addresses of all the partners constituting the partnership at a time specified in the notice and, where the present address of a partner is unknown, the partnership shall disclose the last known address of that partner.
(2) Where a partnership fails to comply with a notice under subrule (1), its claim may be dismissed or the proceeding stayed or its defence may be struck out.
(3) Where the name of a partner is disclosed pursuant to a notice under subrule (1) and the partner has not been served as provided in rule 8.03, the partner may be so served within fifteen days after the name is disclosed.
ENFORCEMENT OF ORDER
Against Partnership Property
8.06 (1) An order against a partnership using the firm name may be enforced against the property of the partnership.
Against Person Served as Alleged Partner
(2) An order against a partnership using the firm name may also be enforced, where the order or a subsequent order so provides, against any person who was served as provided in rule 8.03 and who,
(a) under that rule, is deemed to have been a partner;
(b) has admitted having been a partner; or
(c) has been adjudged to have been a partner, .
at the material time.
Against Person not Served as Alleged Partner
(3) Where, after an order has been made against a partnership using the firm name, the party obtaining it claims to be entitled to enforce it against any person alleged to be a partner other than a person who was served as provided in rule 8.03, the party may move before a judge for leave to do so, and the judge may grant leave if the liability of the person as a partner is not disputed or, if disputed, after the liability has been determined in such manner as the judge directs.
SOLE PROPRIETORSHIPS
8.07 (1) Where a person carries on business in a business name other than his or her own name, a proceeding may be commenced by or against the person using the business name.
(2) Rules 8.01 to 8.06 apply, with necessary modifications, to a proceeding by or against a sole proprietor using a business name, as though the sole proprietor were a partner and the business name were the firm name of a partnership.
RULE 9 ESTATES AND TRUSTS
PROCEEDINGS BY OR AGAINST EXECUTOR, ADMINISTRATOR OR TRUSTEE
General Rule
9.01 (1) A proceeding may be brought by or against an executor, administrator or trustee as representing an estate or trust and its beneficiaries without joining the beneficiaries as parties.
Exceptions
(2) Subrule (1) does not apply to a proceeding,
(a) to establish or contest the validity of a will;
(b) for the interpretation of a will;
(c) to remove or replace an executor, administrator or trustee;
(d) against an executor, administrator or trustee for fraud or misconduct; or
(e) for the administration of an estate or the execution of a trust by the court.
Executor, Administrator or Trustee Refusing to be Joined
(3) Where a proceeding is commenced by executors, administrators or trustees, any executor, administrator or trustee who does not consent to be joined as a plaintiff or applicant shall be made a defendant or respondent.
Beneficiaries and Others Added by Order
(4) The court may order that any beneficiary, creditor or other interested person be made a party to a proceeding by or against an executor, administrator or trustee.
PROCEEDING AGAINST ESTATE THAT HAS NO EXECUTOR OR ADMINISTRATOR
9.02 (1) Where it is sought to commence or continue a proceeding against the estate of a deceased person who has no executor or administrator, the court on motion may appoint a litigation administrator to represent the estate for the purposes of the proceeding.
(2) An order in a proceeding to which a litigation administrator is a party binds or benefits the estate of the deceased person, but has no effect on the litigation administrator in a personal capacity, unless a judge orders otherwise.
REMEDIAL PROVISIONS
Proceeding Commenced before Probate or Administration
9.03 (1) Where a proceeding is commenced by or against a person as executor or administrator before a grant of probate or administration has been made and the person subsequently receives a grant of probate or administration, the proceeding shall be deemed to have been properly constituted from its commencement.
Proceeding Brought by or against Estate
(2) A proceeding commenced by or against the estate of a deceased person,
(a) by naming "the estate of A.B., deceased", "the personal representative of A.B., deceased" or any similar designation; or
(b) in which the wrong person is named as the personal representative,
shall not be treated as a nullity, but the court may order that the proceeding be continued by or against the proper executor or administrator of the deceased or against a litigation administrator appointed for the purpose of the proceeding, and the title of the proceeding shall be amended accordingly.
Proceeding Commenced in the Name of or Against a Deceased Person
(3) A proceeding commenced in the name of or against a person who has died before its commencement shall not be treated as a nullity, but the court may order that the proceeding be continued by or against the executor or administrator or a litigation administrator appointed for the purpose of the proceeding and the title of the proceeding shall be amended accordingly.
Where There is an Executor or Administrator and a Litigation Administrator has been Appointed
(4) Where it appears that a deceased person for whom a litigation administrator has been appointed had an executor or administrator at the time of the appointment, the proceeding shall not be treated as a nullity, but the court may order that the proceeding be continued against the executor or administrator and the title of the proceeding shall be amended accordingly.
General Power
(5) A proceeding by or against a deceased person or an estate shall not be treated as a nullity because it was not properly constituted, but the court may order that the proceeding be reconstituted by analogy to the provisions of this rule.
Stay of Proceeding until Properly Constituted
(6) No further step in a proceeding referred to in subrule (2), (3), (4) or (5) shall be taken until it is properly constituted and, unless it is properly constituted within a reasonable time, the court may dismiss the proceeding or make such other order as is just.
Terms May be Imposed
(7) On making an order under this rule, the court may impose such terms as are just, including a term that an executor or an administrator shall not be personally liable in respect of any part of the estate of a deceased person that he or she has distributed or otherwise dealt with in good faith while not aware that a proceeding had been commenced against the deceased person or the estate.
RULE 10 REPRESENTATION ORDER
REPRESENTATION OF AN INTERESTED PERSON WHO CANNOT BE ASCERTAINED
Proceedings in which Order may be Made
10.01 (1) In a proceeding concerning,
(a) the interpretation of a deed, will, contract or other instrument, or the interpretation of a statute, order in council, regulation or municipal by-law or resolution;
(b) the determination of a question arising in the administration of an estate or trust;
(c) the approval of a sale, purchase, settlement or other transaction;
(d) the approval of an arrangement under the Variation of Trusts Act;
(e) the administration of the estate of a deceased person; or
(f) any other matter where it appears necessary or desirable to make an order under this subrule,
a judge may by order appoint one or more persons to represent any person or class of persons who are unborn or unascertained or who have a present, future, contingent or unascertained interest in or may be affected by the proceeding and who cannot be readily ascertained, found or served.
Order Binds Represented Persons
(2) Where an appointment is made under subrule (1), an order in the proceeding is binding on a person or class so represented, subject to rule 10.03.
Settlement Affecting Persons who are not Parties
(3) Where in a proceeding referred to in subrule (1) a settlement is proposed and some of the persons interested in the settlement are not parties to the proceeding, but,
(a) those persons are represented by a person appointed under subrule (1) who assents to the settlement; or
(b) there are other persons having the same interest who are parties to the proceeding and assent to the settlement,
the judge, if satisfied that the settlement will be for the benefit of the interested persons who are not parties and that to require service on them would cause undue expense or delay, may approve the settlement on behalf of those persons.
(4) A settlement approved under subrule (3) binds the interested persons who are not parties, subject to rule 10.03.
REPRESENTATION OF A DECEASED PERSON
10.02 Where it appears to a judge that the estate of a deceased person has an interest in a matter in question in the proceeding and there is no executor or administrator of the estate, the judge may order that the proceeding continue in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent the estate for the purposes of the proceeding, and an order in the proceeding binds the estate of the deceased person, subject to rule 10.03, as if the executor or administrator of the estate of that person had been a party to the proceeding.
RELIEF FROM BINDING EFFECT OF ORDER
10.03 Where a person or an estate is bound by reason of a representation order made under subrule 10.01(1) or rule 10.02, an approval under subrule 10.01(3) or an order that the proceeding continue made under rule 10.02, a judge may order in the same or a subsequent proceeding that the person or estate not be bound where the judge is satisfied that,
(a) the order or approval was obtained by fraud or non-disclosure of material facts;
(b) the interests of the person or estate were different from those represented at the hearing; or
(c) for some other sufficient reason the order or approval should be set aside.
RULE 11 TRANSFER OR TRANSMISSION OF INTEREST
EFFECT OF TRANSFER OR TRANSMISSION
11.01 Where at any stage of a proceeding the interest or liability of a party is transferred or transmitted to another person by assignment, bankruptcy, death or other means, the proceeding shall be stayed until an order to continue the proceeding by or against the other person has been obtained.
ORDER TO CONTINUE
11.02 (1) Where a transfer or transmission of the interest or liability of a party takes place while a proceeding is pending, any interested person may, on filing an affidavit verifying the transfer or transmission of interest or liability, obtain on requisition from the registrar an order to continue (Form 11 A), without notice to any other party.
(2) An order to continue shall be served forthwith on every other party.
FAILURE TO OBTAIN ORDER TO CONTINUE ACTION
11.03 Where a transfer or transmission of the interest of a plaintiff takes place while an action is pending and no order to continue is obtained within a reasonable time, a defendant may move to have the action dismissed for delay, and rules 24.02 to 24.05 apply with necessary modifications.
RULE 12 CLASS PROCEEDINGS AND OTHER REPRESETNATIVE PROCEEDINGS
DEFINITIONS
12.01 In rules 12.02 to 12.06,
"Act" means Class Proceedings Act, 1992;
"Foundation" means The Law Foundation of Ontario;
"Fund" means the Class Proceedings Fund of the Foundation.
TITLE OF PROCEEDINGS
12.02 (1) In a proceeding commenced under subsection 2(1) of the Act, the title of the proceeding shall include, after the names of the parties, "Proceeding under the Class Proceedings Act, 1992",
(2) In a proceeding referred to in section 3 or 4 of the Act, the notice of motion for an order certifying the proceeding, the order certifying it and all subsequent documents shall include, after the names of the parties, "Proceeding under the Class Proceedings Act, 1992".
DISCOVERY OF CLASS MEMBERS
12.03 (1) For the purpose of subrule 31.11(1) (reading in examination), a class member who is examined for discovery under subsection 15(2) of Act is examined in addition to the party.
(2) Rule 31.10 (discovery of non-parties) and clause 34.15(1)(b) (sanctions for default or misconduct) do not apply when a class member is examined for discovery under subsection 15(2) of the Act.
COSTS
Application of rule
12.04 (1) This rule applies to class proceedings in which the plaintiff or
applicant has received financial support from the Fund.
Notice to Foundation, Opportunity to Participate
(2) If the court is of the opinion that the defendant or respondent may be
entitled to an award of costs, the court shall direct the plaintiff or applicant to give notice to the Foundation.
(3) When the court has made a direction under subsection (2),
(a) no order for costs or assessment of costs shall be made unless the Foundation has had an opportunity to present evidence and make submissions in respect of costs; and
(b) the Foundation is a party for the purpose of an appeal in relation to costs.
Failure to Accept Defendant's Offer
(4) Subrule 49.10(2) (costs consequences of offer) does not apply.
CONTENTS OF JUDGMENTS AND ORDERS
12.05 (1) A judgment in a class proceeding or an order approving a settlement, discontinuance or abandonment of a class proceeding under section 29 of the Act shall contain directions with respect to,
(a) the distribution of amounts awarded under section 24 or 25 of the Act, and costs of distribution;
(b) the payment of amounts owing under an enforceable agreement made under section 32 of the Act between a solicitor and a representative party;
(c) the payment of the costs of the proceeding; and
(d) the payment of any levy in favour of the Fund under clause 59.5(1)(g) of the Law Society Act.
(2) An order certifying two or more proceedings as a class proceeding under section 3 of the Act or decertifying a class proceeding under section 10 of the Act shall contain directions with respect to pleadings and other procedural matters.
LEAVE TO APPEAL
Leave to be Obtained from Another Judge
12.06 (1) Leave to appeal to the Divisional Court under subsection 30(2), (9), (10) or (11) of the Act shall be obtained from a judge other than the judge who made the order.
Certification Order - Grounds
(2) Leave to appeal from an order under subsection 30(2) of the Act shall be granted only on the grounds provided in subrule 62.02(4).
Order Awarding $3,000 or less or Dismissing Claim-Grounds
(3) Leave to appeal from an order under subsection 30(9), (10), or (11) of the Act shall not be granted unless,
(a) there has been a miscarriage of justice; or
(b) the order may be used as a precedent in determining the rights of other class members or the defendant in the proceeding under section 24 or 25 of the Act and there is good reason to doubt the correctness of the order.
Procedure
(4) Subrules 62.02(2), (3), (5), (6), (7) and (8) (procedure on motion for leave to appeal) apply to the motion for leave to appeal.
PROCEEDING AGAINST REPRESENTATIVE DEFENDANT
12.07 Where numerous persons have the same interest, one or more of them may defend a proceeding on behalf or for the benefit of all, or may be authorized by the court to do so.
PROCEEDING BY UNINCORPORATED ASSOCIATION OR TRADE UNION
12.08 Where numerous persons are members of an unincorporated association or trade union and a proceeding under the Class Proceedings Act, 1992 would be an unduly expensive or inconvenient means for determining their claims, one or more of them may be authorized by the court to bring a proceeding on behalf of or for the benefit of all.
LEAVE TO INTERVENE AS ADDED PARTY
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party, if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding,
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.
LEAVE TO INTERVENE AS FRIEND OF THE COURT
13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.
LEAVE TO INTERVENE IN DIVISIONAL COURT OR COURT OF APPEAL
13.03 (1) Leave to intervene in the Divisional Court as an added party or as a friend of the court may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them.
(2) Leave to intervene as an added party or as a friend of the court in the Court of Appeal may be granted by a panel of the court, the Chief Justice of Ontario or the Associate Chief Justice of Ontario.