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Second Session, 48th General Assembly

66 Elizabeth II, 2017

BILL 3

COURT OF APPEAL ACT

Received and Read the First Time.................................................................................................

Second Reading.................................................................................................................................

Committee..........................................................................................................................................

Third Reading.....................................................................................................................................

Royal Assent......................................................................................................................................

HONOURABLE ANDREW PARSONS, Q.C.

Minister of Justice and Public Safety and Attorney General

Ordered to be printed by the Honourable House of Assembly

 

EXPLANATORY NOTES

This Bill would enact the Court of Appeal Act to establish the Court of Appeal of Newfoundland and Labrador as a separate court which is independent from the Supreme Court of Newfoundland and Labrador. Currently, the Court of Appeal is a division of the Supreme Court of Newfoundland and Labrador by virtue of the Judicature Act.

The jurisdiction of both the Court of Appeal and the Supreme Court of Newfoundland and Labrador would be unaffected by the Bill.


A BILL

AN ACT RESPECTING AN INDEPENDENT COURT OF APPEAL IN THE PROVINCE

Analysis


        1.   Short title

        2.   Definitions

              PART I
THE COURT

        3.   Continuation of court

        4.   Court

        5.   Chief Justice

              PART II
JURISDICTION AND POWERS OF THE COURT

        6.   Appellate jurisdiction

        7.   Jurisdiction generally

        8.   Powers of court

        9.   Further powers

              PART III
JUDGES

      10.   Precedence of judges

      11.   Powers of the Chief Justice

      12.   Supernumerary judges

      13.   Additional judge

      14.   Oaths

      15.   Quorum

      16.   Single judge

      17.   Ineligibility of judge

      18.   Transfer of judge

      19.   Judges of Supreme Court

      20.   Judge ceases to hold office

      21.   Vacancy

      22.   Council of judges

      23.   Conferences

              PART IV
REFERENCE

      24.   Reference

      25.   Certification of opinion

      26.   Notice to Attorneys General

      27.   Reference under agreement

      28.   Notice to interested persons

      29.   Appointment of counsel

      30.   Evidence

      31.   Procedure

              PART V
THE COURT GENERALLY

      32.   Title of documents

      33.   Coat of arms

      34.   Seal

      35.   Transfer of proceedings

      36.   Costs

      37.   Rules committees

      38.   Rules

      39.   Where procedure not provided for

      40.   Constitutional questions

              PART VI
OFFICERS OF THE COURT

      41.   Clerks, officers and employees

      42.   Oath of office

      43.   Application of Part IV, Judicature Act

              PART VII
RULES OF LAW

      44.   Application of Part V, Judicature Act

              PART VIII
TRANSITIONAL, CONSEQUENTIAL AND COMMENCEMENT

      45.   Transitional

      46.   RSNL1990 cJ-4 Amdt.

      47.   SNL2016 c37 Amdt.

      48.   Commencement


Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Court of Appeal Act.

Definitions

        2. In this Act

             (a)  "affidavit" includes a solemn declaration, or statutory declaration, and an agreed statement of facts;

             (b)  "Chief Executive Officer" means the Chief Executive Officer appointed under section 59.1 of the Judicature Act;

             (c)  "Chief Justice" means the Chief Justice of Newfoundland and Labrador;

             (d)  "court" means, unless the context indicates otherwise, the Court of Appeal of Newfoundland and Labrador referred to in section 3 or a judge or the judges of that court;

             (e)  "judge" means a judge of the court;

             (f)  "judgment" means the disposition of a proceeding by the court and in the case of a panel of judges, the disposition by a majority of those judges;

             (g)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

             (h)  "oath" includes solemn affirmation and statutory declaration;

              (i)  "order" means

                      (i)  an order of the court stating the judgment of the court,

                     (ii)  an order of the court made in the exercise of its jurisdiction under section 6, and

                    (iii)  where the context requires, an order of the Supreme Court;

              (j)  "party" means a person served with notice of, or entitled to attend a proceeding, even if that person is not named in the record;

             (k)  "proceeding" means

                      (i)  a civil or criminal appeal,

                     (ii)  a reference,

                    (iii)  any matter brought to the court under an Act of the Legislature or Parliament of Canada or the rules, or

                    (iv)  an application respecting a matter referred to in subparagraphs (i) to (iii);

              (l)  "reference" means a reference to the court under section 24;

           (m)  "registry" means the registry of the court;

             (n)  "rules" means the rules made under section 38 and includes the forms in those rules; and

             (o)  "Supreme Court" means the Supreme Court of Newfoundland and Labrador as continued in the Judicature Act.

PART I
THE COURT

Continuation of court

        3. The appeal division referred to as the Court of Appeal in Part I of the Judicature Act as it existed before the coming into force of this Act is continued as a superior court of civil and criminal jurisdiction to be called the Court of Appeal of Newfoundland and Labrador.

Court

        4. (1) The court consists of the following:

             (a)  the Chief Justice, who shall also be the Chief Justice of the court;

             (b)  5 other judges, who shall be called Justices of Appeal;

             (c)  any former Chief Justice who has elected under section 13 to continue as a puisne judge for so long as he or she continues; and

             (d)  as many judges who have elected supernumerary status under section 12 as are in office.

             (2)  Subject to the rules, the court shall sit in the City of St. John's and may sit in other locations within the province at the places and times that the Chief Justice directs.

             (3)  Each judge of the court shall maintain his or her principal residence in the City of St. John's or within an area of 50 kilometres by road from that city.

Chief Justice

        5. Nothing in this Act derogates from the powers inherent in the Office of the Chief Justice.

PART II
JURISDICTION AND POWERS OF THE COURT

Appellate jurisdiction

        6. (1) Subject to section 7 and the rules made under section 38, an appeal lies to the court

             (a)  from an order of the Supreme Court or an order of a judge of the Supreme Court; and

             (b)  in a proceeding where jurisdiction is given to it under an Act of the Legislature or the Parliament of Canada.

             (2)  Where another Act of the Legislature or the Parliament of Canada provides that there is no appeal, or a limited right of appeal, from an order referred to in subsection (1), that Act prevails.

             (3)  The court shall have and exercise appellate jurisdiction, with the original jurisdiction that may be necessary or incidental to the determining of any proceeding before the court, with appellate jurisdiction in civil and criminal proceedings, and jurisdiction and power to hear and determine appeals respecting an order or decision of a judge of the Supreme Court.

Jurisdiction generally

        7. (1) For the hearing and determination of a proceeding, and the amendment, execution and enforcement of an order, and for the purpose of every other authority expressly or implicitly given to the court, by this Act or another Act of the Legislature or the Parliament of Canada, the court has the power, authority and jurisdiction vested in the appeal division referred to as the Court of Appeal in Part I of the Judicature Act as it existed before the coming into force of this Act, including that power, authority and jurisdiction conferred

             (a)  by the Imperial Statute passed in the 5th year of the reign of His late Majesty King George the 4th, entitled "An Act for the better administration of justice in Newfoundland, and for other purposes";

             (b)  by the Royal Charter or Letters Patent under the Great Seal, issued by virtue of the Imperial Statute, dated September 19th, 1825, in the 6th year of His late Majesty's reign; and

             (c)  by a law in force in the province.

             (2)  The inherent jurisdiction of the appeal division referred to as the Court of Appeal in Part I of the Judicature Act as it existed before the coming into force of this Act is continued in the court and is unaffected by the coming into force of this Act.

             (3)  The court has all the inherent powers of a superior court at common law.

Powers of court

        8. (1) The court may give any judgment which ought to have been  pronounced, and may make further or other orders that it considers just.

             (2)  The powers of the court include the following:

             (a)  the court may draw inferences of fact not inconsistent with any finding of fact that is not set aside and, if satisfied that there is before it all the material necessary for finally determining the matters in controversy, or any of them, or for awarding any relief sought, may give judgment accordingly;

             (b)  notwithstanding paragraph (a), if the court is of the opinion that there is not sufficient material before it to enable it to give judgment, the court may direct the appeal to stand over for further consideration, and may direct that those issues or questions of fact be tried and determined, and those accounts be taken, and those inquiries be made, as are considered necessary to enable it, on those further considerations, to dispose finally of the matters in controversy;

             (c)  the court may, in its discretion, receive further evidence upon questions of fact by oral examination in court, by affidavit, or by deposition taken before an examiner or a commissioner; and

             (d)  where judgment has been given, a judge may, on terms the judge considers appropriate, order that proceedings, including execution, in the cause or matter from which the appeal was taken be stayed in whole or in part.

             (3)  The powers conferred by subsection (2) may be exercised

             (a)  notwithstanding that the appeal is as to part only of the judgment, order, decision, or verdict; and

             (b)  in favour of all or any of the parties, although they have not appealed.

Further powers

        9. For all the purposes of, and incidental to, the hearing and determination of any cause or matter, and the amendment, execution, and enforcement, of any judgment or order, and for the purpose of every other authority expressly or impliedly given to it by this Act, the court has the power, authority, and jurisdiction, vested in the court appealed from.

PART III
JUDGES

Precedence of judges

      10. The judges of the court and Supreme Court have rank, precedence and seniority in the following order:

             (a)  the Chief Justice;

             (b)  the Chief Justice of the Supreme Court;

             (c)  the Associate Chief Justice of the Supreme Court;

             (d)  the judges of the court in the order of their seniority of appointment to the court; and

             (d)  the judges of the Supreme Court in the order of their seniority of appointment to the Supreme Court.

Powers of the Chief Justice

      11. Where there is a vacancy in the office of the Chief Justice or the Chief Justice

             (a)  is absent from the province;

             (b)  is unable to act; or

             (c)  requests it,

his or her powers shall be exercised by the next senior judge of the court who is able to act in the place of the Chief Justice.

Supernumerary judges

      12. (1) For each office of judge established under section 4, there is an additional office of supernumerary judge, which a judge may elect to hold upon compliance with the Judges Act (Canada) and upon meeting the qualifications required under that Act.

             (2)  A judge who elects to hold the office of supernumerary judge shall continue to be called a Justice of Appeal.

             (3)  Subsection 4(3) does not apply to a judge who elects to hold the office of supernumerary judge.

Additional judge

      13. For the purpose of section 32 of the Judges Act (Canada), there shall be established, for the Office of Chief Justice of Newfoundland and Labrador an additional office of judge as is from time to time required, to be held by a Chief Justice who has elected under the Judges Act (Canada) to perform only the duties of a judge.

Oaths

      14. (1) The Chief Justice and every other judge shall, before entering upon the duties of the office of judge, take and sign the Oath of Allegiance and the Judicial Oath referred to in the Oaths of Office Act.

             (2)  The oaths referred to in subsection (1) shall be administered by a judge.

Quorum

      15. (1) Three judges constitute a quorum of the court for the purpose of hearing an appeal.

             (2) The judgment of the majority of the court sitting as a quorum is the judgment of the court.

             (3) The death, withdrawal, resignation, removal or inability to act of a judge after the beginning of a hearing shall not affect the jurisdiction of the court if the proceeding is finally disposed of by not fewer than 2 judges, in which case their judgment shall have the same effect as if made by the whole court.

Single judge

      16. In a proceeding pending in the court, an application incidental to it, not including the final determination of the appeal, may be heard and disposed of by a single judge of the court.

Ineligibility of judge

      17. A judge is ineligible to sit on the hearing of an appeal from a judgment or order made by that judge.

Transfer of judge

      18. Where a judge of the court is unable to sit or take part in consequence of section 17, or from illness or other reason, or in case of a vacancy in the court, the Chief Justice of the Supreme Court shall upon the request of the Chief Justice appoint a judge of the Supreme Court to sit and act in the place of the other judge, or in the place of a judge whose office has become vacant, and it is the duty of a judge so appointed to attend and, while so sitting and acting, that judge has all the jurisdiction, power and authority of a judge of the court.

Judges of Supreme Court

      19. A judge of the Supreme Court is by virtue of the office a judge of the court where that judge has been appointed under section 18 for the purpose of hearing a proceeding and while so acting has in all respects equal jurisdiction, power and authority.

Judge ceases to hold office

      20. A judge who ceases to hold office may, within 6 months after ceasing to hold office, give judgment in a proceeding previously heard and completed before that judge as if that judge had not ceased to hold office.

Vacancy

      21. A vacancy in the court does not impair the court in the exercise of its powers.

Council of judges

      22. A council of judges may meet at the call of the Chief Justice, who shall be the chairperson, and at other times at the written request of 2 judges to the chairperson for the purpose of considering the operations of this Act and the rules, and the other matters that the chairperson or one of the judges considers appropriate.

Conferences

      23. The Chief Justice may require a judge to attend a meeting, conference or seminar to be held for a purpose relating to the administration of justice.

PART IV
REFERENCE

Reference

      24. The Lieutenant-Governor in Council may refer a matter to the court and upon the reference the court shall hear and determine that matter.

Certification of opinion

      25. (1) The court shall certify its opinion on a reference to the Lieutenant-Governor in Council together with its judgment.

             (2)  The judgment given under subsection (1) shall be given in the same manner as if it were a judgment or order of the court given in an ordinary proceeding.

             (3)  A judge who differs from the opinion of the majority on a reference shall also certify his or her opinion.

             (4)  The judgment of the court on a reference is considered to be an order of the court and an appeal lies from a judgment on a reference as from a judgment in a proceeding.

Notice to Attorneys General

      26. Where a reference relates to the constitutionality of an Act or a provision of an Act, the Attorney General of Canada and the Attorney General of each province shall be notified of the hearing in order that they may be heard.

Reference under agreement

      27. (1) Where a reference relates to matters arising under an agreement entered into between the Government of Canada and the government of the province that provides for a reference to the court, the Attorney General of Canada and the Attorney General of another province that has entered into a similar agreement may appear before the court and be heard as a party to the hearing of the reference.

             (2)  The form, terms and other matters relating to a reference under subsection (1) shall be as set out in the agreement, and in the absence of such provision shall be as the parties to the agreement agree.

             (3)  If the parties have not provided for the form, terms and other matters relating to the reference, or have not agreed to them, they shall be determined by the Chief Justice.

Notice to interested persons

      28. The court may direct that a person interested, or a person representing a class that is interested, shall be notified of a reference and upon the notification the person has the right to be heard on the hearing of the reference.

Appointment of counsel

      29. Where a person or class of persons affected by a reference are not represented by counsel, the court may appoint counsel to represent the person or class and the reasonable expenses occasioned shall be paid subject to the counsel’s rates and reasonable expenses being agreed upon with the Attorney General.

Evidence

      30. The court may have the evidence taken that it requires upon a matter raised in a reference if provision is made in the reference for the taking of the evidence.

Procedure

      31. The court may determine the procedure in a reference but in the absence of a determination the procedure shall be governed by the rules of procedure of the Supreme Court of Canada upon references to that court.

PART V
THE COURT GENERALLY

Title of documents

      32. All documents, affidavits, notices and other papers and documents issued out of, or used in, the court are to be entitled "In the Court of Appeal of Newfoundland and Labrador".

Coat of arms

      33. The coat of arms of the court shall be the Royal Arms as displayed in the court house.

Seal

      34. (1) The judges may establish the seal to be used by the court to certify and authenticate the proceedings of the court.

             (2)  Until the seal is established under subsection (1), the seal presently in use by the court shall continue to be used.

             (3)  The seal of the court shall be kept at the registry.

Transfer of proceedings

      35. (1) If a proceeding has been started in the court where it ought not to have been started, a judge may direct that proceeding be transferred to the court in which the proceedings ought to have been started.

             (2)  All proceedings taken by a party that have been transferred under subsection (1), and all orders made before the transfer, are considered to be as valid as if they had been taken and made in the court in which the proceedings ought to have been started.

Costs

      36. (1) Subject to the rules and the express provisions of another Act, the costs of and incident to all proceedings in the court are in the discretion of the court.

             (2)  The court may determine by whom and to what extent costs awarded under subsection (1) shall be paid.

             (3)  Costs may be awarded to and against the Crown.

Rules committees

      37. (1) There is continued a rules committee of the court consisting of

             (a)  the Chief Justice who shall be the chairperson;

             (b)  the other judges of the court;

             (c)  the Chief Justice of the Supreme Court, or the nominee of the Chief Justice from among the judges of the Supreme Court;

             (d)  a nominee of the Chief Executive Officer;

             (e)  2 members of the Law Society of Newfoundland and Labrador appointed by the benchers of that society; and

             (f)  the minister or the nominee of the minister.

             (2)  The rules committee shall meet at least once yearly at the call of the chairperson and at other times upon the request of 3 members of the rules committee made in writing to the chairperson.

Rules

      38. (1) The rules committee may make rules

             (a)  regulating the sittings of the court;

             (b)  regulating the procedure of the court in exercising the jurisdiction of the court conferred by this Act or any other Act or regulation;

             (c)  providing for the service of documents;

             (d)  respecting the duties of the clerks, officers and employees of the court;

             (e)  respecting the costs of proceedings in the court;

             (f)  governing the pleading, practice and procedure of the court.

             (g)  regulating the means by which further evidence may be given and facts may be proved in any preceding where the court orders admission of further evidence;

             (h)  regulating the payment, transfer and deposit of money or property into or out of court;

              (i)  directing the clerks, officers and employees of the court to do those things respecting the conduct of proceedings in the court and to transact the business of the court as specified in the rules;

              (j)  regulating the procedure applicable to a reference referred under section 24;

             (k)  respecting the maintenance of records and filing documents and materials by electronic means;

              (l)  respecting access to proceedings and court records;

           (m)  respecting the procedure and actions required for the court to exercise the jurisdiction conferred on it by this Act or any other Act or regulations;

             (n)  fixing the scale of fees to be taken by barristers and others for proceedings in the court other than fees referred to in subsection (2); and

             (o)  generally, for the purpose and administration of the Act.

             (2)  The Lieutenant-Governor in Council may make rules fixing the scale of fees to be taken by the court.

             (3)  Rules made under this section are subordinate legislation for the purposes of the Statutes and Subordinate Legislation Act.

             (4)  Upon the coming into force of this Act, the Court of Appeal Rules, Newfoundland and Labrador Regulation 38/16, shall continue in force and shall be considered to have been made under the authority of this Act.

Where procedure not provided for

      39. In cases not provided for in this Act, the rules or by the provisions of another Act that are not inconsistent with this Act, or where the practice and procedure in a particular proceeding cannot be ascertained, the court may adopt the practice and procedure that is necessary to permit the proceeding to continue.

Constitutional questions

      40. (1) Where in a proceeding the constitutional validity, applicability or operability of an Act or regulation of the Parliament of Canada or of the Legislature is brought into question at first instance in the court, it shall not be heard until notice has been given to the Attorney General for Canada and to the Attorney General for the province.

             (2)  The notice shall state what Act, regulation or part of an Act or regulation is in question and the day on which the question is to be argued, and shall give other particulars that are necessary to show the constitutional point proposed to be argued.

             (3)  Subject to the rules, the notice shall be served as soon as practicable but no later than 10 days before the day named for the argument.

             (4)  The Attorney General for Canada and the Attorney General for the province are entitled as of right to be heard either in person or by counsel notwithstanding that the Crown is not a party to the proceeding.

             (5)  Where in a proceeding to which this section applies the Attorney General for Canada or the Attorney General for the province appears in person or by counsel, each shall be considered to be a party to the proceeding for the purpose of an appeal from an adjudication as to the constitutional validity, applicability or operability of an Act or regulation in question in the proceeding and each has the same rights with respect to an appeal as another party to the proceeding.

             (6)  Where the court considers it appropriate, the court may order that a notice under this section be given to the Attorney General of a province.

PART VI
OFFICERS OF THE COURT

Clerks, officers and employees

      41. (1) There may be appointed, in the manner provided by law, the clerks, officers and employees that the business of the court requires.

             (2)  One or more persons appointed under subsection (1) may, in consultation with the Chief Justice, be designated as a registrar of the court to perform the duties and responsibilities associated with the registry as set out in the rules.

             (3)  The clerks, officers and employees of the court appointed under this Act shall act under the direction of the Chief Justice or a judge in matters of judicial administration.

             (4)  The clerks, officers and employees of the court appointed under this Act shall act under the direction of the Chief Executive Officer in matters of court administration and shall perform the duties that may be assigned to them by the Chief Executive Officer.

Oath of office

      42. The Chief Executive Officer and the clerks, officers and employees referred to in section 41 shall, before entering upon their duties, take and sign before one of the judges the following oath or affirmation:

"I, A.B., of                        , do solemnly swear (or solemnly, sincerely and truly declare and affirm) that I will according to the best of my skill, learning, ability and judgment, well and faithfully execute and fulfil the duties of the office of                         without favour or affection, prejudice or partiality." (Where an oath is taken, add "So help me God".)

Application of Part IV, Judicature Act

      43. Except where inconsistent with sections 41 and 42, Part IV of the Judicature Act shall apply, with the necessary changes, to the clerks, officers and employees of the court.

PART VII
RULES OF LAW

Application of Part V, Judicature Act

      44. In civil proceedings in the court, law and equity shall be administered by it in accordance with the rules of law set out in Part V of the Judicature Act.

PART VIII
TRANSITIONAL, CONSEQUENTIAL AND COMMENCEMENT

Transitional

      45. (1) Where in an Act, regulation, rule, order, by-law, agreement or other instrument or document, there is a reference, express or implied, to the Court of Appeal, Appeal Division, the Supreme Court of Newfoundland and Labrador-Appeal Division, or the Supreme Court of Newfoundland and Labrador, Court of Appeal, that reference shall in respect of matters arising after the coming into force of this Act be considered to be a reference to the Court of Appeal of Newfoundland and Labrador.

             (2)  Where in an Act, regulation, rule, order, by-law, agreement or other instrument or document, there is a reference, express or implied, to the Supreme Court, Trial Division, Trial Division, or the Supreme Court of Newfoundland and Labrador-Trial Division, that reference shall in respect of matters arising after the coming into force of this Act be considered to be a reference to the Supreme Court of Newfoundland and Labrador.

             (3)  Where on the coming into force of this Act, a proceeding was underway in the Supreme Court of Newfoundland and Labrador, Court of Appeal, it shall continue as a proceeding of the Court of Appeal of Newfoundland and Labrador.

             (4)  Where on the coming into force of this Act, a proceeding was underway in the Supreme Court of Newfoundland and Labrador, Trial Division, it shall continue as a proceeding of the Supreme Court of Newfoundland and Labrador.

             (5)  Where on the coming into force of this Act, a person was appointed as a master and taxing officer of the Supreme Court, that person's appointment is unaffected by the coming into force of this Act and the person shall be considered to be a master and taxing officer of the Court of Appeal and the Supreme Court.                   

             (6)  Where immediately before the coming into force of this Act a proceeding was before the Supreme Court of Newfoundland and Labrador, Court of Appeal the Court of Appeal may, upon the application of a person interested in that proceeding give directions

             (a)  regarding the filing of documents or matters of procedure; or

             (b)  for the purpose of removing or minimizing a procedural difficulty arising immediately after the coming into force of this Act.

             (7)  Where immediately before the coming into force of this Act a proceeding was before the Supreme Court of Newfoundland and Labrador, Trial Division, the Supreme Court may, upon the application of a person interested in that proceeding give directions

             (a)  regarding the filing of documents or matters of procedure; or

             (b)  for the purpose of removing or minimizing a procedural difficulty arising immediately after the coming into force of this Act.

RSNL1990 cJ-4 Amdt.

      46. (1) Section 2 of the Judicature Act is repealed and the following substituted:

Definitions

        2. In this Act

             (a)  "affidavit" includes a solemn declaration, or statutory declaration, and an agreed statement of facts;

             (b)  "Associate Chief Justice" means the Associate Chief Justice of the Supreme Court;

             (c)  "Chief Executive Officer" means the Chief Executive Officer appointed under section 59.1;

             (d)  "Chief Justice" means the Chief Justice of the Supreme Court;

             (e)  "court" means, unless the context indicates otherwise, the Supreme Court or a judge or the judges of that court, whether sitting in court or chambers;

             (f)  "Court of Appeal" means the Court of Appeal of Newfoundland and Labrador continued under section 3 of the Court of Appeal Act;

             (g)  "decision" means the reasons given by the court for its judgment or other order;

             (h)  "defendant" means a person served with an originating document, or served with notice of or entitled to attend a proceeding but does not include a respondent;

              (i)  "judge" means a judge of the court and includes a judge sitting in chambers;

              (j)  "judicial centre" means a judicial centre of the court continued under this Act;

             (k)  "master" means a Master of the Court of Appeal and the Supreme Court appointed under section 77;

              (l)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

           (m)  "oath" includes solemn affirmation and statutory declaration;

             (n)  "order" means an order of the court and includes a judgment, decree or ruling;

             (o)  "party" means a person served with notice of, or entitled to attend a proceeding, even if that person is not named in the record;

             (p)  "petitioner" includes a person making an application to the court, other than as against a defendant;

             (q)  "plaintiff" means a person asking relief against another person by a form of proceeding, other than by counterclaim as a defendant but does not include a petitioner;

              (r)  "proceeding" means a civil or criminal action, suit, cause or matter, or an interlocutory application, including a proceeding formerly started by a writ of summons, third party notice, counterclaim, petition, originating summons, originating motion or in another manner;

             (s)  "registry" means the registry in each judicial centre;

              (t)  "rules" means

                      (i)  the Rules of the Supreme Court of Newfoundland and Labrador, 1986 and includes the forms in those rules, and

                     (ii)  the Rules of the Supreme Court of Newfoundland and Labrador made under section 55 that replace, amend or revoke the rules and forms; and

             (u)  "Supreme Court" means the Supreme Court of Newfoundland and Labrador.

             (2)  Section 3 of the Act is repealed and the following substituted:

Continuation and jurisdiction of court

        3. (1) The Supreme Court of Newfoundland and Labrador, Trial Division as it existed before the coming into force of this section is continued as the Supreme Court of Newfoundland and Labrador and shall have all civil and criminal jurisdiction conferred upon the Supreme Court of Newfoundland

             (a)  by the Imperial Statute passed in the 5th year of the reign of His late Majesty King George the 4th, entitled "An Act for the better administration of justice in Newfoundland, and for other purposes";

             (b)  by the Royal Charter or Letters Patent under the Great Seal, issued by virtue of the Imperial Statute, dated September 19th, 1825, in the 6th year of His late Majesty's reign; and

             (c)  by a law in force in the province.

             (2)  The Supreme Court has all the inherent powers of a superior court at common law.

             (3)  Part I of the Act is repealed.

             (4)  The heading for Part II of the Act is repealed and the following substituted:

PART II
THE SUPREME COURT

             (5)  Section 20.1 of the Act is repealed.

             (6)  Section 21 of the Act is repealed and the following substituted:

Supreme Court

      21. (1) The court consists of

             (a)  a chief justice, who shall be called the Chief Justice of the Supreme Court;

             (b)  an associate chief justice, who shall be called the Associate Chief Justice of the Supreme Court; and

             (c)  22 other judges.

             (2)  The Chief Justice, the Associate Chief Justice and the judges referred to in paragraph (1)(c) shall collectively be called the judges of the Supreme Court.

             (3)  The court shall be composed of 2 divisions called the General Division and the Family Division.

             (4)  A judge who is not assigned to the Family Division under subsection 43.6(1) shall be considered to be assigned to the General Division.

             (5)  The Chief Justice and the Associate Chief Justice may hear and determine proceedings brought in the General Division and the Family Division and for that purpose the Chief Justice and the Associate Chief Justice are judges of the General Division and the Family Division.

             (7)  Subsections 22(2) and (3) of the Act are amended by deleting the words "Trial Division" and substituting the word "court".

             (8)  Section 23 of the Act is repealed and the following substituted:

Jurisdiction

      23. The court has jurisdiction over all civil and criminal proceedings that were within the jurisdiction of the Trial Division immediately before the commencement of this section, including all proceedings pending in the Trial Division.

             (9)  Section 24 of the Act is amended by deleting the words "Trial Division" and substituting the word "court".

          (10)  Section 26 of the Act is amended by deleting the words "Trial Division" and substituting the word "court".

          (11)  Section 27 of the Act is repealed and the following substituted:

Jurisdiction of judges

      27. (1) Each judge may exercise the jurisdiction of the court in chambers, in court or as may be directed or authorized to be heard by the rules.

             (2)  A judge sitting in the court, in chambers or in a manner directed or authorized by the rules constitutes the court.

          (12)  Section 30 of the Act is repealed and the following substituted:

Transfer of judge

      30. (1) Where, in a proceeding, there is no judge of the court who is able or eligible to sit or it is desirable for good reason that no judge of the court should sit, the Chief Justice may request the Chief Justice of Newfoundland and Labrador to appoint one of the judges of the Court of Appeal to sit and act as a judge of the Supreme Court for the hearing of the proceeding.

             (2)  A judge appointed under subsection (1) shall attend at the hearing of the proceeding to which that judge has been appointed and while that judge sits and acts the judge has all the jurisdiction, power and authority of a judge of the court.

          (13)  Subsection 32(1) of the Act is amended by deleting the words "of the Trial Division".

          (14)  Section 34 of the Act is repealed and the following substituted:

Appeals to Supreme Court

      34. (1) On an appeal from a tribunal or a court of inferior jurisdiction and upon the removal of a proceeding in which evidence has been taken to the court, the court

             (a)  may direct the rehearing of witnesses, the retaking of evidence or the taking of further and other evidence by the court of inferior jurisdiction or the tribunal;

             (b)  may require the report of all evidence taken by the court of inferior jurisdiction or the tribunal;

             (c)  may require the production and examination of a witness already examined or of persons who have not been already examined; and

             (d)  may refer the proceeding back to the court of inferior jurisdiction or the tribunal for further consideration in whole or in part.

             (2)  In giving a decision or judgment upon an appeal from a court of inferior jurisdiction or a tribunal, the court

             (a)  may dismiss the appeal;

             (b)  may confirm or reverse the decision of the court of inferior jurisdiction or the tribunal;

             (c)  may alter, amend or modify the decision;

             (d)  may make an order that appears to be just; and

             (e)  may make orders as to costs.

          (15)  The header for Division 2 of the Act is repealed and the following substituted:

Division 2
Supreme Court - General Division

          (16)  Section 43.5 of the Act is amended by deleting the words "Chief Justice of the Trial Division" wherever they appear and substituting the words "Chief Justice".

          (17)  Section 43.6 of the Act is amended by deleting the words "Chief Justice of the Trial Division" wherever they appear and substituting the words "Chief Justice".

          (18)  The Act is amended by repealing sections 44 to 59 and substituting the following:

Coat of arms

      44. The coat of arms of the court shall be the Royal Arms as displayed in the court houses of the Supreme Court.

Seal

      45. (1) The judges of the court may establish the seal to be used by the court to certify and authenticate the proceedings of the court.

             (2)  Until the seal is established under subsection (1), the seal presently in use by the court shall continue to be used.

             (3)  The seal of the court shall be kept at the judicial centre of St. John’s and a duplicate of that seal shall be kept at the registry in each judicial centre.

Oaths

      46. (1) The Chief Justice, the Associate Chief Justice and every other judge of the court shall, before entering upon the duties of the office of judge, take and sign the Oath of Allegiance and the Judicial Oath referred to in the Oaths of Office Act.

             (2)  The oaths referred to in subsection (1) shall be administered by a judge.

Supernumerary judges

      47. (1) For each office of judge established under section 21, there is an additional office of supernumerary judge, which a judge of the court may elect to hold upon compliance with the Judges Act (Canada) and upon meeting the qualifications required under that Act.

             (2)  A judge who elects to hold the office of supernumerary judge is to be called a judge of the Supreme Court.

             (3)  Subsection 22(3) does not apply to a judge who elects to hold the office of supernumerary judge.

Additional judge

   47.1 For the purpose of section 32 of the Judges Act (Canada), there shall be established, for the Office of Chief Justice of the Supreme Court of Newfoundland and Labrador and the Office of Associate Chief Justice of the Supreme Court an additional office of judge as is from time to time required, to be held by a Chief Justice or Associate Chief Justice who has elected under the Judges Act (Canada) to perform only the duties of a judge of the Supreme Court.

Precedence of judges

      48. The judges of the Supreme Court  and the Court of Appeal have rank, precedence and seniority in the following order:

             (a)  the Chief Justice of Newfoundland and Labrador;

             (b)  the Chief Justice;

             (c)  the Associate Chief Justice;

             (d)  the judges of the Court of Appeal in the order of their seniority of appointment to the Court of Appeal; and

             (e)  the judges of the Supreme Court in the order of their seniority of appointment to the court.

Powers of the Chief Justice

      49. Where there is a vacancy in the office of the Chief Justice or the Chief Justice

             (a)  is absent from the province;

             (b)  is unable to act; or

             (c)  requests it,

his or her powers shall be exercised by the Associate Chief Justice, or if there is a vacancy in the Office of Associate Chief Justice or he or she is absent or unable to act, by the next senior judge of the court who is able to act in the place of the Chief Justice.

Vacancy

      50. A vacancy in the court does not impair the court in the exercise of its powers.

Judges

      51. A judge of the Court of Appeal is by virtue of the office a judge of the court where that judge has been appointed under section 30 for the purpose of hearing a proceeding and while so acting has in all respects equal jurisdiction, power and authority.

Transfer of proceeding

      52. (1) If a proceeding has been started

             (a)  in the Court of Appeal where it ought not to have been started; or

             (b)  in the Supreme Court where it ought not to have been started,

a judge of the respective court may direct that proceeding be transferred to the appropriate court.

             (2)  All proceedings taken by a party that have been transferred under subsection (1), and all orders made before the transfer, are considered to be as valid as if they had been taken and made in the court in which the proceeding ought to have been started.

Costs

      53. (1) Subject to the rules and the express provisions of another Act, the costs of and incident to all proceedings in the court including the administration of estates and trusts are in the discretion of the court.

             (2)  The court may determine by whom and to what extent costs awarded under subsection (1) shall be paid.

             (3)  Costs may be awarded to and against the Crown.

Rules committees

      54. (1) There is continued a rules committee of the Supreme Court consisting of

             (a)  the Chief Justice, who shall be chairperson;

             (b)  the Chief Justice of Newfoundland and Labrador, or the nominee of the Chief Justice of Newfoundland and Labrador from among the judges of the Court of Appeal;

             (c)  4 judges of the Supreme Court designated by the Chief Justice;

             (d)  a nominee of the Chief Executive Officer;

             (e)  2 members of the Law Society of Newfoundland appointed by the benchers of that society; and

             (f)  the minister or the nominee of the minister.

             (2)  The rules committee shall meet at least once yearly at the call of the chairperson and at other times upon the request of 3 members of the rules committee made in writing to the chairperson.

Rules

      55. (1) The rules committee may make rules

             (a)  regulating the sittings of the court and the sittings of the judges in chambers;

             (b)  regulating the payment, transfer and deposit of money or property into or out of the court;

             (c)  regulating the procedure of the court in exercising the jurisdiction of the court conferred by another Act or regulation;

             (d)  regulating the means by which particular facts may be proved and the method in which evidence may be given on an application in a proceeding relating to the distribution of a fund or property, whether in the court or not;

             (e)  respecting the physical or mental examination of a party where the physical or mental condition of a party is an issue in the proceeding;

             (f)  respecting the hearing of appeals and all proceedings relating to or brought up by certiorari orders from Provincial Court judges or justices of the peace;

             (g)  governing the pleading, practice and procedure of probate and administration under Part VI;

             (h)  providing for the service of documents out of the jurisdiction of the court;

              (i)  respecting the duties of the clerks, officers and employees of the court;

              (j)  respecting the costs of proceedings in the court; and

             (k)  governing the pleading, practice and procedure generally of the court.

             (2)  The Lieutenant-Governor in Council may make rules fixing the scale of fees to be taken by the court.

             (3)  The rules committee may make rules fixing the scale of fees to be taken by barristers and others for proceedings in the court not included in subsection (2).

             (4)  Rules made under this section are subordinate legislation for the purposes of the Statutes and Subordinate Legislation Act.

Where procedure not provided for

      56. In cases not provided for in this Act, the rules or by the provisions of another Act that are not inconsistent with this Act, or where the practice and procedure in a particular proceeding cannot be ascertained, the court may adopt the practice and procedure that is necessary to permit the proceeding to continue.

Constitutional questions

      57. (1) Where in a proceeding the constitutional validity, applicability or operability of an Act or regulation of the Parliament of Canada or of the Legislature is brought into question, it shall not be heard until notice has been given to the Attorney General for Canada and to the Attorney General for the province.

             (2)  The notice shall state what Act, regulation or part of an Act or regulation is in question and the day on which the question is to be argued, and shall give other particulars that are necessary to show the constitutional point proposed to be argued.

             (3)  Subject to the rules, the notice shall be served as soon as practicable but no later than 10 days before the day named for the argument.

             (4)  The Attorney General for Canada and the Attorney General for the province are entitled as of right to be heard either in person or by counsel notwithstanding that the Crown is not a party to the proceeding.

             (5)  Where in a proceeding to which this section applies the Attorney General for Canada or the Attorney General for the province appears in person or by counsel, each shall be considered to be a party to the proceeding for the purpose of an appeal from an adjudication as to the constitutional validity, applicability or operability of an Act or regulation in question in the proceeding and each has the same rights with respect to an appeal as another party to the proceeding.

             (6)  Where the court considers it appropriate, the court may order that a notice under this section be given to the Attorney General of a province.

Council of judges

      58. (1) A council consisting of the judges shall meet at least once yearly at the call of the chairperson and at other times upon the written request of 3 judges to the chairperson, upon a day fixed by the chairperson and of which he or she shall give notice to the judges assembled for the purpose of

             (a)  considering

                      (i)  the operation of this Act and the rules, and

                     (ii)  the working of, and the arrangements governing the performance of duties by, the clerks, officers and employees of the court;

             (b)  inquiring into and examining defects that appear to exist in the procedure of the court; and

             (c)  considering other matters that the chairperson or one of the judges considers appropriate.

             (2)  The Chief Justice shall be the chairperson of the council.

             (3)  Where the council considers it necessary and appropriate to do so, it may form one or more subcommittees to deal with a matter referred to in subsection (1) and each subcommittee so formed shall meet at the times and places that are necessary to achieve the purpose for which it was formed.

Conferences

      59. The Chief Justice may require a judge to attend a meeting, conference or seminar to be held for a purpose relating to the administration of justice.

          (19)  Section 59.1 of the Act is repealed and the following substituted:

Chief Executive Officer

   59.1 (1) The Lieutenant-Governor in Council, in consultation with the Chief Justice of Newfoundland and Labrador and the Chief Justice, may appoint or remove a Chief Executive Officer who shall be the Chief Executive Officer of both the Supreme Court and the Court of  Appeal.

             (2)  The Lieutenant-Governor in Council may appoint a person to act in the place of the Chief Executive Officer until a Chief Executive Officer is appointed or the Chief Executive Officer is able to resume his or her duties where

             (a)  the office of the Chief Executive Officer is vacant; or

             (b)  the Chief Executive Officer is unable to fulfill his or her duties.

             (3)  The Chief Executive Officer shall act under the direction of the minister in matters of court administration of the Supreme Court and the Court of Appeal.

             (4)  The duties of the Chief Executive Officer shall include

             (a)  the management, operation and administration of the Supreme Court and the Court of Appeal;

             (b)  the direction and supervision of the clerks, officers and employees of the Supreme Court, the Court of Appeal and registries;

             (c)  an accounting of the fees required to be collected by the clerks, officers and employees of the Supreme Court and the Court of Appeal and of the money paid into and out of court; and

             (d)  the duties provided under this or another Act or regulation or rule made under this or another Act, or as may be assigned by the minister, the Chief Justice or the Chief Justice of Newfoundland and Labrador.

             (5)  The Chief Executive Officer shall act under the direction of the Chief Justice and the Chief Justice of Newfoundland and Labrador in matters of judicial administration.

          (20)  Section 60.2 of the Act is repealed and the following substituted:

Taxing officers

   60.2 (1) The Chief Justice of Newfoundland and Labrador and the Chief Justice may designate clerks, officers and employees of the Court of Appeal and the Supreme Court appointed under this Part as taxing officers for the Court of Appeal and the Supreme Court respectively.

             (2)  A clerk, officer or employee appointed under this Part is not entitled to additional remuneration, or to charge a fee, only because he or she is designated as a taxing officer.

          (21)  Section 67 of the Act is repealed and the following substituted:

Accounts

      67. (1) The Chief Executive Officer shall, as soon as possible after the end of every fiscal year, prepare accounts of all money held by the Court of Appeal and the Supreme Court and shall, before August 1 in every year, provide a copy of the accounts

             (a)  to the Chief Justice of Newfoundland and Labrador and the Chief Justice, for the information of the judges; and

             (b)  to the minister.

             (2)  The auditor general shall examine and audit the accounts of the Court of Appeal and the Supreme Court.

          (22)  Subsection 70(1) of the Act is amended by deleting the words "Trial Division" and substituting the word "court".

          (23)  Subsection 78(1) of the Act is repealed and the following substituted:

Commissioners within the province

      78. (1) The Chief Justice of Newfoundland and Labrador and the Chief Justice may issue commissions within the province under the seal of the Court of Appeal or the Supreme Court to those persons that they think suitable, and may revoke the commissions.                    

          (24)  Subsection 79(1) of the Act is repealed and the following substituted:

Commissioners outside the province

      79. (1) The Chief Justice of Newfoundland and Labrador and the Chief Justice may issue commissions outside the province under the seal of the Court of Appeal or the Supreme Court to those persons that they think suitable, and may revoke the commission.

          (25)  Section 90 of the Act is repealed and the following substituted:

Interpretation

      90. In civil proceedings in the Supreme Court, law and equity shall be administered by it in accordance with the rules of law set out in this Part.

          (26)  Part VII of the Act is repealed and the following substituted:

PART VIII
TRANSITIONAL PROVISIONS

Transitional provisions

   141. (1)  Where in an Act, regulation, rule, order, by-law, agreement or other instrument or document, there is a reference, express or implied, to the Court of Appeal, Appeal Division, the Supreme Court of Newfoundland and Labrador-Appeal Division, or the Supreme Court of Newfoundland and Labrador, Court of Appeal, that reference shall in respect of matters arising on or after January 1, 2018 be considered to be a reference to the Court of Appeal of Newfoundland and Labrador.

             (2)  Where in an Act, regulation, rule, order, by-law, agreement or other instrument or document, there is a reference, express or implied, to the Supreme Court, Trial Division, Trial Division, or the Supreme Court of Newfoundland and Labrador-Trial Division, that reference shall in respect of matters arising on or after January 1, 2018 be considered to be a reference to the Supreme Court of Newfoundland and Labrador.

             (3)  Where on or after January 1, 2018, a proceeding was underway in the Supreme Court of Newfoundland and Labrador, Court of Appeal, it shall continue as a proceeding of the Court of Appeal of Newfoundland and Labrador.

             (4)  Where on or after January 1, 2018, a proceeding was underway in the Supreme Court of Newfoundland and Labrador, Trial Division, it shall continue as a proceeding of the Supreme Court of Newfoundland and Labrador.

             (5)  Where on or after January 1, 2018, a person was appointed as a master and taxing officer of the Supreme Court, that person's appointment is unaffected by the coming into force of this Act and the person shall be considered to be a master and taxing officer of the Court of Appeal and the Supreme Court.               

             (6)  Where immediately before January 1, 2018 a proceeding was before the Supreme Court of Newfoundland and Labrador, Court of Appeal, the Court of Appeal may, upon the application of a person interested in that proceeding give directions

             (a)  regarding the filing of documents or matters of procedure; or

             (b)  for the purpose of removing or minimizing a procedural difficulty arising immediately after the coming into force of this Act.

             (7)  Where immediately before January 1, 2018 a proceeding was before the Supreme Court of Newfoundland and Labrador, Trial Division, the Supreme Court may, upon the application of a person interested in that proceeding give directions

             (a)  regarding the filing of documents or matters of procedure; or

             (b)  for the purpose of removing or minimizing a procedural difficulty arising immediately after the coming into force of this Act.

SNL2016 c37 Amdt.

      47. Section 2 of An Act to Amend the Judicature Act, SNL2016 c37, is amended by deleting the words "Trial Division" wherever they appear and substituting the words "Supreme Court".

Commencement

      48. This Act comes into force on January 1, 2018.