Class Proceedings Act

Class Proceedings Act 50 1996 781755088/96050/tlc96050_f E4tlc96050 1 Definitions Definitions 1 In this Act: certification order means an order certifying a proceeding as a class proceeding; class proceeding means a proceeding, including a multi-jurisdictional class proceeding, that is certified as a class proceeding under Part 2; 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; court , except in sections 36 (4) and 37, means the Supreme Court; defendant includes a respondent; multi-jurisdictional class proceeding means a proceeding that is brought on behalf of a class of persons that includes persons who do not reside in British Columbia; plaintiff includes a petitioner. 2 Certification Plaintiff's class proceeding 2 1 A resident of British Columbia who is a member of a class of persons may commence a proceeding in the court on behalf of the members of that class. 2 The member who commences a proceeding under subsection (1) must a make an application to the court for an order i certifying the proceeding as a class proceeding, and ii subject to subsection (4), appointing the member as the representative plaintiff for the class proceeding, and b give notice of the application for certification to i the representative plaintiff for any multi-jurisdictional class proceeding, and ii the representative plaintiff for any proposed multi-jurisdictional class proceeding that has been commenced elsewhere in Canada and that involves the same or similar subject matter. 3 An application under subsection (2) must be made a within 90 days after the later of i the date on which the last response to civil claim was served, and ii the date on which the period prescribed by the Supreme Court Civil Rules for service of the last response to a notice of civil claim expires without that pleading having been served, or b at any other time, with leave of the court. 4 The court may certify a person who is not a member of the class as the representative plaintiff for the class proceeding only if it is necessary to do so in order to avoid a substantial injustice to the class. Defendant's class proceeding 3 A defendant to 2 or more proceedings may, at any stage of one of the proceedings, make an application to a judge of the court for an order certifying the proceedings as a class proceeding and appointing a representative plaintiff. Plaintiff in other proceeding may appear 3.1 A person who receives notice of an application for certification under section 2 (2) (b) may make submissions at the certification hearing. Class certification 4 1 Subject to subsections (3) and (4), the court must certify a proceeding as a class proceeding on an application under section 2 or 3 if all of the following requirements are met: a the pleadings disclose a cause of action; b there is an identifiable class of 2 or more persons; c the claims of the class members raise common issues, whether or not those common issues predominate 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; e there is a representative plaintiff who i would fairly and adequately represent the interests of the class, ii 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 iii does not have, on the common issues, an interest that is in conflict with the interests of other class members. 2 In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, the court must consider all relevant matters including the following: a whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members; b whether a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions; c whether the class proceeding would involve claims that are or have been the subject of any other proceedings; d whether other means of resolving the claims are less practical or less efficient; e whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means. 3 If a multi-jurisdictional class proceeding or a proposed multi-jurisdictional class proceeding has been commenced elsewhere in Canada and involves the same or similar subject matter to that of the proceeding being considered for certification, the court must determine whether it would be preferable for some or all of the claims of the proposed class members, or some or all of the common issues raised by those claims, to be resolved in the proceeding commenced elsewhere. 4 When making a determination under subsection (3), the court must a be guided by the following objectives: i to ensure that the interests of all parties in each of the relevant jurisdictions are given due consideration; ii to ensure that the ends of justice are served; iii to avoid irreconcilable judgments, if possible; iv to promote judicial economy, and b consider relevant factors, including the following: i the alleged basis of liability, including the applicable laws; ii the stage that each of the proceedings has reached; iii the plan for the proposed multi-jurisdictional class proceeding, including the viability of the plan and the capacity and resources for advancing the proceeding on behalf of the proposed class; iv the location of class members and representative plaintiffs in each of the proceedings, including the ability of representative plaintiffs to participate in the proceedings and to represent the interests of class members; v the location of evidence and witnesses. Orders in multi-jurisdictional certification 4.1 1 The court may make any order it considers appropriate in an application to certify a multi-jurisdictional class proceeding, including an order a certifying the proceeding as a multi-jurisdictional class proceeding, if i the requirements in section 4 (1) are met, and ii the court determines, having regard to section 4 (2) and (3), that British Columbia is the appropriate venue for the multi-jurisdictional class proceeding, b refusing to certify the proceeding, if the court determines that it should proceed as a multi-jurisdictional class proceeding in another jurisdiction, or c refusing to certify a portion of a proposed class, if that portion of the class contains members who may be included within a proposed class proceeding in another jurisdiction. 2 If the court certifies a multi-jurisdictional class proceeding, it may a divide the class into resident and non-resident subclasses, b appoint a separate representative plaintiff for each subclass, and c specify the manner in which and the time within which members of each subclass may opt out of the proceeding. Certification application 5 1 An application for a certification order under section 2 (2) or 3 must be supported by an affidavit of the applicant. 2 A copy of the notice of application and supporting affidavit must be filed and a served by ordinary service on all persons by whom or on whose behalf a pleading has been filed in the proceeding, and b served by personal service on any other persons named in the style of proceedings. 3 Unless otherwise ordered, there must be at least 14 days between a the service of a notice of application and supporting affidavit, and b the day named in the notice of application for the hearing. 4 Unless otherwise ordered, a person to whom a notice of application and affidavit is served under this section must, not less than 5 days or such other period as the court may order before the date of the hearing of the application, file an affidavit and serve a copy of the filed affidavit by ordinary service on all persons by whom or on whose behalf a pleading has been filed in the proceeding. 5 A person filing an affidavit under subsection (2) or (4) must a set out in the affidavit the material facts on which the person intends to rely at the hearing of the application, b swear that the person knows of no fact material to the application that has not been disclosed in the person's affidavit or in any affidavits previously filed in the proceeding, and c provide the person's best information on the number of members in the proposed class. 6 The court may adjourn the application for certification to permit the parties to amend their materials or pleadings or to permit further evidence. 7 An order certifying a proceeding as a class proceeding is not a determination of the merits of the proceeding. Subclass certification 6 1 Despite section 4 (1), if a class includes a subclass whose members have claims that raise common issues not shared by all the class members so that, in the opinion of the court, the protection of the interests of the subclass members requires that they be separately represented, the court must not certify the proceeding as a class proceeding unless there is, in addition to the representative plaintiff for the class, a representative plaintiff who a would fairly and adequately represent the interests of the subclass, b has produced a plan for the 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. 2 [Repealed 2018-16-6.] Certain matters not bar to certification 7 The court must not refuse to certify a proceeding as a class proceeding merely because 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 known; 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 [Repealed 2018-16-7.] h include any other provisions the court considers appropriate. 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. 3 The court, on the application of a party or class member, may at any time amend a certification order. 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 section 8 (3), at any time after a certification order is made under this Part, the court may amend the certification 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 (1) are not satisfied with respect to a class proceeding. 2 If the court makes a decertification order under subsection (1), the court may permit the proceeding to continue as one or more proceedings between different parties and may make any order referred to in section 9 (a) to (c) in relation to each of those proceedings. 3 Conduct of Class Proceedings 1 Role of Court Stages of class proceedings 11 1 Unless the court otherwise orders under section 12, in a class proceeding, 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 individually in accordance with sections 27 and 28. 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 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 any other proceeding 13 The court may at any time stay any proceeding related to the class proceeding on the terms the court considers appropriate. Applications 14 1 The judge who makes a certification order is to hear all applications in the class proceeding before the trial of the common issues. 2 If a judge who has heard applications under subsection (1) becomes unavailable for any reason to hear an application in the class proceeding, the chief justice of the court may assign another judge of the court to hear the application. 3 A judge who hears applications under subsection (1) or (2) may but need not preside at the trial of the common issues. 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 any subclass or for any other appropriate reason, the court may, at any time in a class proceeding, permit one or more class members to participate in the proceeding. 2 Participation under subsection (1) must be in the manner and on the terms, including terms as to costs, that the court considers appropriate. Opting out 16 1 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. 2) to (5 [Repealed 2018-16-8.] Discovery 17 1 Parties to a class proceeding have the same rights of discovery under the Supreme Court Civil Rules against one another as they would have in any other proceeding. 2 After discovery of the representative plaintiff or, in a 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. 3 In deciding whether to grant a defendant leave to discover other class members, the court must consider the following: a the stage of the class proceeding and the issues to be determined at that stage; b the presence of subclasses; c whether the discovery is necessary in view of the defences of the party seeking leave; d the approximate monetary value of individual claims, if any; e whether discovery would result in oppression or in undue annoyance, burden or expense for the class members sought to be discovered; f any other matter the court considers relevant. 4 A class member is subject to the same sanctions under the Supreme Court Civil Rules as a party for failure to submit to discovery. Examination of class members before an application 18 1 A party must not require a class member, other than a representative plaintiff, to be examined as a witness before the hearing of any application, except with leave of the court. 2 Section 17 (3) applies to a decision whether to grant leave under subsection (1) of this section. 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. 2 The court may dispense with notice if, having regard to the factors set out in subsection (3), the court considers it appropriate to do so. 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 the following: 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 whether some or all of the class members may opt out of the class proceeding; g the places of residence of class members; h any other relevant matter. 4 The court may order that notice be given by a personal delivery, b mail, c posting, advertising, publishing or leafleting, d individually notifying a sample group within the class, or e any other means or combination of means that the court considers appropriate. 5 The court may order that notice be given to different class members by different means. 6 Unless the court orders otherwise, notice under this section must a describe the proceeding, including the names and addresses of the representative plaintiffs and the relief sought, b state the manner in which and the time within which a class member may opt out of the proceeding, c [Repealed 2018-16-9.] d describe the possible financial consequences of the proceeding to class members and subclass members, e summarize any agreements respecting fees and disbursements i between the representative plaintiff and the representative plaintiff's solicitors, and ii if the recipient of the notice is a member of a subclass, between the representative plaintiff for that subclass and that representative plaintiff's solicitors, f describe any counterclaim being asserted by or against the class or any subclass, including the relief sought in the counterclaim, g state that the judgment on the common issues for the class, whether favourable or not, will bind all class members who do not opt out of the proceeding, h state that the judgment on the common issues for a subclass, whether favourable or not, will bind all subclass members who do not opt out of the proceeding, i describe the rights, if any, of class members to participate in the proceeding, j give an address to which class members may direct inquiries about the proceeding, and k give any other information the court considers appropriate. 7 With leave of the court, notice under this section may include a solicitation of contributions from class members to assist in paying solicitors' fees and disbursements. Notice of determination of common issues 20 1 When, in a class proceeding, the court determines common issues for the class or a subclass, the representative plaintiff for the class or subclass must give notice to the members of the class or subclass in accordance with this section. 2 Section 19 (3) to (5) applies to notice given under this section. 3 Notice under this section must a state that common issues have been determined, b identify the common issues that have been determined and explain the determinations made, c if common issues have been determined in favour of the class or subclass, i state that members of the class or subclass may be entitled to individual relief, ii describe the steps that must be taken to establish an individual claim, and iii 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, d give an address to which members of the class or subclass may direct inquiries about the proceeding, and e 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 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. 2 Section 19 (3) to (5) applies 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. 2 In making an order under subsection (1), the court may have regard to the different interests of a subclass. 4 Orders, Awards and Related Procedures 1 Order on Common Issues 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 is binding 26 1 A judgment on common issues of a class or subclass binds every member of the class or subclass, as the case may be, who has not opted out of the class proceeding, but only to the extent that the judgment determines common issues that a are set out in the certification order, b relate to claims described in the certification order, and c relate to relief sought by the class or subclass as stated in the certification order. 2 A judgment on common issues of a class or subclass does not bind a party to the class proceeding in any subsequent proceeding between the party and a person who opted out of the class proceedings. Determination of individual issues 27 1 When 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 an inquiry into those individual issues under the Supreme Court Civil 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. 2 The court may give any necessary directions relating to the procedures that must be followed in conducting hearings, inquiries and determinations under subsection (1). 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. 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. 5 A member of the class or subclass who fails to make a claim within the time set under subsection (4) must not later make a claim under this section in respect of the issues applicable only to that member except with leave of the court. 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. 7 Unless otherwise ordered by the court making a direction under subsection (1) (c), a determination of issues made in accordance with subsection (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. 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 class members and may give judgment accordingly if a monetary relief is claimed on behalf of some or all class members, b no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant's monetary liability, and c the aggregate or a part of the defendant's liability to some or all class members can reasonably be determined without proof by individual class members. 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, without limitation, a submissions that contest the merits or amount of an award under that subsection, and b submissions that individual proof of monetary relief is required due to the individual nature of the relief. Statistical evidence may be used 30 1 For the purposes of determining issues relating to the amount or distribution of an aggregate monetary award under this Act, the court may admit as evidence statistical information that would not otherwise be admissible as evidence, including information derived from sampling, if the information was compiled in accordance with principles that are generally accepted by experts in the field of statistics. 2 A record of statistical information purporting to be prepared by or published under the authority 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. 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. 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 the Parliament of Canada or the legislature of any province or territory of Canada, b was derived from market quotations, tabulations, lists, directories or other compilations generally used and relied on by members of the public, or c was derived from reference material generally used and relied on by members of an occupational group. 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. 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. 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. 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 that member's claim on an individual basis. 3 In deciding whether to exclude a class or subclass member from an average distribution, the court must consider a the extent to which the class or subclass 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 an average distribution, and c whether excluding the class or subclass members referred to in paragraph (b) would unreasonably deplete the amount to be distributed on an average basis. 4 An amount recovered by a class or subclass member who proves that member's claim on an individual basis must be deducted from the amount to be distributed on an average basis before the distribution. Individual share of aggregate award 32 1 When the court orders that all or a part of an aggregate monetary award under section 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. 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. 3 In specifying the procedures under subsection (2), the court must minimize the burden on class or subclass members and, for that purpose, the court may authorize a the use of standard proof of claim forms, b the submission of affidavit or other documentary evidence, and c the auditing of claims on a sampling or other basis. 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. 5 A class or subclass member who fails to make a claim within the time set under subsection (4) must not later make a claim under this section except with leave of the court. 6 Section 27 (6) applies to a decision whether to grant leave under subsection (5) of this section. 7 The court may amend a judgment given under section 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 33 1 The court may direct any means of distribution of amounts awarded under this Division that it considers appropriate. 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 class or subclass member is entitled. 3 In deciding whether to make an order under subsection (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. 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 the terms it considers appropriate. 5 The court may order that an award made under this Division be paid a in a lump sum, promptly or within a time set by the court, or b in instalments, on the terms the court considers appropriate. 6 The court may a order that the costs of distributing an award under this Division, including the costs of any notice associated with the distribution and the fees payable to a person administering the distribution, be paid out of the proceeds of the judgment, and b make any further or other order it considers appropriate. Repealed 34 [Repealed 2018-49-19.] 3 Termination of Proceedings and Appeals Settlement, discontinuance, abandonment and dismissal 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. 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. 3 A settlement under this section is not binding unless approved by the court. 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. 5 In dismissing a class proceeding or in approving a settlement, discontinuance or abandonment, the court must consider whether notice 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 Any party may appeal to the Court of Appeal from a an order certifying or refusing to certify a proceeding as a class proceeding, b an order decertifying a proceeding, c a judgment on common issues, and d an order under Division 2 of this Part, other than an order that determines individual claims made by class or subclass members. 2 If a representative plaintiff does not appeal as permitted by subsection (1) within the time limit for bringing an appeal set under section 15 (a) of the Court of Appeal Act or if a representative plaintiff abandons an appeal under subsection (1), any member of the class or subclass for which the representative plaintiff had been appointed may apply to a justice of the Court of Appeal for leave to act as the representative plaintiff for the purposes of subsection (1). 3 An application by a class or subclass member for leave to act as the representative plaintiff under subsection (2) 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. 4 With leave of a justice of the Court of Appeal, a class or subclass member, a representative plaintiff or a defendant may appeal to that court any order a determining an individual claim made by a class or subclass member, or b dismissing an individual claim for monetary relief made by a class or subclass member. 4 Undistributed Amounts Definition 36.1 In this Division, Law Foundation of British Columbia means the Law Foundation of British Columbia continued under section 58 (1) of the Legal Profession Act . Undistributed amounts 36.2 1 Subject to subsection (2), the court must order that, if all or any part of an award under Division 2 or settlement funds under section 35 have not been distributed within a time set by the court, a 50% of the undistributed amount be distributed to the Law Foundation of British Columbia, and b 50% of the undistributed amount be applied in any manner that may reasonably be expected to benefit class or subclass members, including, if appropriate, distribution to the Law Foundation of British Columbia. 2 If the award or settlement referred to in subsection (1) is in respect of a class proceeding that relates to damage or loss suffered primarily by Indigenous people of Canada or it would be impractical or impossible for the court to make an order under that subsection, the court must order that all or any part of the undistributed amount be applied in any manner that may reasonably be expected to benefit class or subclass members. 3 In making an order under subsection (1) (b) or (2), 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. 4 An order may be made under subsection (1) (b) or (2) a even if the award or settlement does not provide for monetary relief to individual class or subclass members, and b whether or not all the class or subclass members can be identified or all their shares can be exactly determined. 5 An order may be made under subsection (1) (b) or (2) 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. 5 Costs, Fees and Disbursements Costs 37 1 Subject to this section, neither the Supreme Court nor the Court of Appeal may award costs to any party to an application for certification under section 2 (2) or 3, to any party to a class proceeding or to any party to an appeal arising from a class proceeding at any stage of the application, proceeding or appeal. 2 A court referred to in subsection (1) may only award costs to a party in respect of an application for certification or in respect of all or any part of a class proceeding or an appeal from a class proceeding a at any time that the court considers that there has been vexatious, frivolous or abusive conduct on the part of any party, b at any time that the court considers that an improper or unnecessary application or other step has been made or taken for the purpose of delay or increasing costs or for any other improper purpose, or c at any time that the court considers that there are exceptional circumstances that make it unjust to deprive the successful party of costs. 3 A court that orders costs under subsection (2) may order that those costs be assessed in any manner that the court considers appropriate. 4 Class members, other than the person appointed as representative plaintiff for the class, are not liable for costs except with respect to the determination of their own individual claims. Agreements respecting fees and disbursements 38 1 An agreement respecting fees and disbursements between a solicitor 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 that 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. 2 An agreement respecting fees and disbursements between a solicitor and a representative plaintiff is not enforceable unless approved by the court, on the application of the solicitor. 3 An application under subsection (2) may, a unless the court otherwise orders, be brought without notice to the defendants, or b if notice to the defendants is required, 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. 4 Interest payable on fees under an agreement approved under subsection (2) must be calculated a in the manner set out in the agreement, or b if not so set out, at the interest rate, as that term is defined in section 7 of the Court Order Interest Act , or at any other rate the court considers appropriate. 5 Interest payable on disbursements under an agreement approved under subsection (2) must be calculated a in the manner set out in the agreement, or b if not so set out, at the interest rate, as that term is defined in section 7 of the Court Order Interest Act , or 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. 6 Amounts owing under an enforceable agreement are a first charge on any settlement funds or monetary award. 7 If an agreement is not approved by the court or if the amount owing to a solicitor under an approved agreement is in dispute, the court may a determine the amount owing to the solicitor in respect of fees and disbursements, b direct an inquiry, assessment or accounting under the Supreme Court Civil Rules to determine the amount owing, c direct that the amount owing be determined in any other manner, or d make any other or further order it considers appropriate. 6 General Limitation period for a cause of action not included in a class proceeding 38.1 1 If a person has a cause of action, a limitation period applicable to that cause of action is suspended for the period referred to in subsection (2) in the event that a an application is made for an order certifying a proceeding as a class proceeding, b when the proceeding referred to in paragraph (a) is commenced, it is reasonable to assume that, if the proceeding were to be certified, i the cause of action would be asserted in the proceeding, and ii the person would be included as a member of the class on whose behalf the cause of action would be asserted, and c the court makes an order that i the application referred to in subsection (1) (a) be dismissed, ii the cause of action must not be asserted in the proceeding, or iii the person is not a member of the class for which the proceeding may be certified. 2 In the circumstances set out in subsection (1), the limitation period applicable to a cause of action referred to in that subsection is suspended for the period beginning on the commencement of the proceeding and ending on the date on which a the time for appeal of an order referred to in subsection (1) (c) expires without an appeal being commenced, or b any appeal of an order referred to in subsection (1) (c) is finally disposed of. Limitation periods 39 1 Subject to subsection (2), any limitation period applicable to a cause of action asserted in a proceeding that is certified as a class proceeding under this Act is suspended in favour of a class member on the commencement of the proceeding and resumes running against the class member when any of the following occurs: a the member opts out of the class proceeding; b an amendment is made to the certification order that has the effect of excluding the member from the class proceeding; c a decertification order is made under section 10; d the class proceeding is dismissed without an adjudication on the merits; e the class proceeding is discontinued or abandoned with the approval of the court; f the class proceeding is settled with the approval of the court, unless the settlement provides otherwise. 2 If there is a right of appeal in respect of an event described in subsection (1) (a) to (f), 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. Rules of Court 40 The Supreme Court Civil Rules 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. Offence Act 42 Section 5 of the Offence Act does not apply to this Act. Power to make regulations 43 The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act . Transition — multi-jurisdictional class proceedings 44 1 If a proceeding was certified as a class proceeding before the coming into force of this section, then sections 6 (2), 8 (1) (g), 16 (2) to (5) and 19 (6) (c), as they read immediately before the coming into force of this section, apply to the proceeding. 2 If a proceeding was certified as a class proceeding before the coming into force of this section, the court may, on application by a party to the proceeding, a amend the certification order so that persons who would have been members of the class, but for not being resident in British Columbia, are included as members of the class, and b order that notice of the amended certification order be given to members of the class who are not resident in British Columbia. 3 Sections 19 and 22 to 24 apply to the notice referred to in subsection (2) (b) as if it were a notice that must be given under section 19 (1). 4 If a proceeding was commenced under this Act before the coming into force of this section, and the proceeding is certified as a class proceeding after the coming into force of this section, persons who would have been members of the class, but for not being resident in British Columbia, are included as members of the class. Transition — undistributed amounts 45 If a proceeding was commenced under this Act before the coming into force of this section, a section 34, as it read immediately before the coming into force of this section, applies to the proceeding, and b Division 4 of Part 4 does not apply to the proceeding.