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Newfoundland Regulation 1999


NEWFOUNDLAND REGULATION 108/99

NEWFOUNDLAND REGULATION 108/99

Rules of the Supreme Court, 1986 (Amendment)
under the
Judicature Act

(Filed December 10, 1999)

Under the authority of section 55 of the Judicature Act, the Rules Committee of the Court of Appeal of the Supreme Court of Newfoundland makes the following Rules.

Dated at St. John’s, December 10, 1999.

Barry R. Sparkes, B.C.L.
Registrar of the Supreme Court
Secretary, Rules Committee

RULES

Analysis


        1.   Rule 57 R&S
Civil Appeals in the Court of Appeal

        2.   Commencement


        1. Rule 57 of the Rules of the Supreme Court, 1986 is repealed and the following substituted:


RULE 57
CIVIL APPEALS
COURT OF APPEAL

57.01 Definitions

                   In this rule

             (a)  "appeal" means an appeal to the Court and includes a cross-appeal, an application for leave to appeal (where the application is not required by a statute to be made to a Judge), an application for a new trial or to amend, quash or set aside an order or decision appealed from, and any matter reserved, case stated or reference presented to the Court under any statute or rule;

             (b)  "appellant" means any person who files a notice of appeal and includes a tribunal that reserves a matter, states a case, or presents a reference to the Court;

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

             (d)  "Court" means the Court of Appeal, a Judge or a panel of Judges designated by the Chief Justice;

             (e)  "court appealed from" means any court, judge, or tribunal from which an appeal lies to the Court;

              (f)  "judgment" means the formal disposition of an appeal by the Court and includes an order for judgment;

             (g)  "Judge", unless the context otherwise requires, means a judge of the Court of Appeal;

             (h)  "notice of appeal" means a document by which an appeal is commenced and includes an order, case stated or reference of a tribunal originating an appeal by it;

              (i)  "order", when referring to an order appealed from, means the judgment, ruling, verdict, order, finding, direction, determination or award of the court or tribunal appealed from;

              (j)  "Registrar" means the officer of the Court appointed as deputy registrar or a clerk of the Court discharging the functions of deputy registrar;

             (k)  "respondent" means any person properly served with a notice of appeal and any other person, who, whether served with a notice of appeal or not, is authorized by the Court or by law to be a party to the appeal, and in an appeal under rule 54 includes any court, judge, justice or justices, officer, clerk or tribunal to which the proceeding appealed from was directed;

              (l)  "tribunal" means any person or body, from whom an appeal lies to the Court, including any board, commission, committee, municipal authority, Minister, public official, or other public or governmental agency or authority, including the Lieutenant-governor in Council, but not including a court or judge; and

            (m)  "tribunal appeal" means any appeal authorized by statute to be taken from a tribunal to the Court and includes any matter reserved, case stated or reference referred by a tribunal to the Court.

57.02 Leave to Appeal

             (1)  Where a party seeks to appeal from

             (a)  an interlocutory order,

             (b)  an order as to costs only, or

             (c)  an order made by consent of the parties,

leave to appeal must be obtained by application to the Court.

             (2)  A notice of application for leave to appeal shall be served on any party in the proceeding in the court appealed from who may be directly affected by the appeal, within 10 days from the date of the order sought to be appealed, or within such further time as is allowed by the Court.

             (3)  The record on an application under paragraph (1) shall consist of

             (a)  an index,

             (b)  a copy of the notice of application,

             (c)  a copy of the order sought to be appealed,

             (d)  a copy of the pleadings, if any, and

             (e)  a copy of any affidavits or other evidence relevant to the appeal.

             (4)  Leave to appeal an interlocutory order may be granted where

             (a)  there is a conflicting decision by another judge or court upon a question involved in the proposed appeal and, in the opinion of the Court, it is desirable that leave to appeal be granted,

             (b)  the Court doubts the correctness of the order in question,

             (c)  the Court considers that the appeal involves matters of such importance that leave to appeal should be granted, or

             (d)  the Court considers that the nature of the issue is such that any appeal on that issue following final judgment would be of no practical effect.

             (5)  The Court, on hearing an application for leave to appeal, may

             (a)  grant leave,

             (b)  refuse leave, or

             (c)  postpone the granting or refusal of leave, but order that the appeal and the issue of leave to appeal be heard together,

and impose such terms as may be just, and give directions to expedite the hearing of the appeal.

             (6)  The Court may summarily grant leave to appeal at any time.

             (7)  A party who applies for leave to appeal from an interlocutory order may move in the alternative for an extension of time to issue and serve a notice of appeal in the event that the Court rules that the order is not interlocutory.

             (8)  A notice of application for leave to appeal from an interlocutory order may be in Form 57.02A.

             (9)  An interlocutory order, from which there has been no appeal, shall not operate so as to bar the Court from giving such decision on the appeal as may be just.

57.03 Appeals

             (1)  Unless a statute otherwise provides, an appeal, other than a tribunal appeal, shall be by way of rehearing and shall be brought by filing a notice of appeal with the Registrar

             (a)  in the case of an appeal, not requiring leave, from an order in an interlocutory proceeding, within 10 days;

             (b)  in the case of an appeal from any other order, within 30 days.

             (2)  The times referred to in paragraphs (a) and (b) of rule 57.03(1) shall run from the date upon which the order is settled and filed pursuant to rule 49.04.

             (3)  A notice of appeal, other than in a tribunal appeal, shall be served as soon as practicable after the filing of the notice of appeal and as prescribed by rule 6.12 on any party in the proceeding in the court appealed from who may be directly affected by the appeal.

             (4)  A notice of appeal in an appeal (other than from an Interlocutory Order) under rule 55 or in an appeal in a declaratory proceeding relating to or affecting a provincial statute or a tribunal shall also be served as prescribed by rule 6.12 on the Provincial Court judge or tribunal involved, if not a party in the court appealed from, and on the Attorney General of Newfoundland, but only the Attorney General of Newfoundland shall be a Respondent.  Service on a tribunal may be effected by service on its secretary or chief executive officer.

             (5)  When filing the notice of appeal with the Registrar, the appellant also shall file:

             (a)  a letter from the appellant undertaking to request within 10 days the immediate preparation of a transcript of the proceeding under appeal and to provide copies thereof; or

             (b)  a letter from the appellant undertaking to apply within 10 days for an order of the Court dispensing with the filing of all or any part of a transcript of the proceeding under appeal.

             (6)  When the appellant elects to provide an undertaking referred to in rule 57.03(5)(a), the appellant shall not permit the preparation of the transcript to be suspended without the prior written consent of each respondent unless a notice of discontinuance of the appeal has been filed.

             (7)  In the event that the appellant fails to comply with the provisions of rule 57.03(5), a respondent may apply to the Court in accordance with rule 57.30 for an order dismissing the appeal.

             (8)  A notice of appeal may be in Form 57.03A.

57.04 Tribunal Appeals

             (1)  If a statute authorizing a tribunal appeal prescribes how the appeal shall be brought or when, how and to whom any notice of appeal may be delivered, the prescriptions shall be observed.

             (2)  Subject to rule 57.04(1), a tribunal appeal shall be by way of rehearing and shall be brought by filing a notice of appeal with the Registrar within 30 days from the date of the order appealed from.

             (3)  Unless otherwise ordered by the Court, a notice of appeal in a tribunal appeal shall be served as soon as practicable after the filing of the notice of appeal, as prescribed by rule 57.04(2) and as prescribed by rule 6.12, on the tribunal or its chief executive officer and on any other party in the proceeding before the tribunal.  If there is doubt as to the form of the notice of appeal, the appellant may apply to the Court for directions.


57.05 Extension of Time

                   The time limited for filing of a notice of application for leave to appeal under rule 57.02 or a notice of appeal under rule 57.03 or rule 57.04 may be extended either before or after the expiration of the time limited where, in the opinion of the Court, refusal to do so would create an injustice.

57.06 Transcripts

             (1)  The Court, upon application and upon such terms as it considers appropriate, may order that a transcript of the proceeding under appeal be prepared from a copy of the sound record.

             (2)  All transcripts shall be prepared in accordance with the Recording of Evidence Act and the Transcript Standards Manual of the Court Reporters’ Office and, together with the requisite affidavit, shall be filed with the Court and served upon the other parties to the appeal within the time limited by these rules.

             (3)  When a party to an appeal disputes the accuracy of a transcript and applies for a review within 30 days of the receipt of the transcript, the Court may review the portion of the transcript that is said to be inaccurate and the sound record of it and make such order as it considers appropriate, or may remit the matter for determination by the judge or tribunal who presided over the proceeding under appeal, whose decision shall be final.

57.07 Form of Notice of Appeal

             (1)  A notice of appeal shall specify the order and court appealed from, the grounds of appeal and the relief or disposition sought and whether the whole or only part, and if so which part, of the order is being appealed from.  An appellant may not, without leave of the Court, rely on any ground not specified in the notice of appeal.

             (2)  A notice of appeal in a tribunal appeal shall also specify the errors of law allegedly committed, or in an appeal by a tribunal shall specify the matters being reserved, stated or referred to the Court.

             (3)  A notice of appeal shall give the names and addresses of the appellant or the appellant's solicitor, if any, and of the persons being served with the notice of appeal.

             (4)  The notice of appeal may be amended within twenty days of filing and thereafter only with leave of the Court, and as amended shall be forthwith filed and served.

57.08 Notice of Intention to Participate

             (1)  Any person served with a notice of appeal in a tribunal appeal, other than the tribunal itself, may participate in that appeal as a respondent, if that person files with the Registrar and delivers to the appellant a notice of intention so to participate, within 10 days of service on that person of the notice of appeal, containing that person's name and address or the name and address of that person's solicitor, if any.

             (2)  The tribunal appealed from shall not be considered a respondent, but may file a notice of intention to participate and other documentation as if it were a respondent, and may participate in the appeal to the extent permitted by the Court.

             (3)  No notice or other paper need be served on a person entitled to file a notice of intention to participate who has not filed and delivered a notice of such intention within 10 days after being served with the notice of appeal.

             (4)  A person who is entitled to file and who files a notice of intention to participate whether or not that person is or is deemed to be a respondent shall have the benefit of and be bound by these rules as if that person were a respondent.

57.09 Cross-appeal

             (1)  A respondent who wishes to cross-appeal or who intends to contend on the appeal that

             (a)  the order appealed from should be varied in any event;

             (b)  the order appealed from should be affirmed on grounds other than those given by the court appealed from; or

             (c)  the respondent is entitled to other or different relief or disposition than that given by the order appealed from,

shall, within 30 days after service of the notice of appeal on the respondent, file with the Registrar and serve on the appellant and any other party affected by the appeal, a notice of cross-appeal specifying the grounds thereof.

             (2)  Failure of a respondent to file and serve a notice of cross-appeal shall not diminish the power of the Court to deal with any matter that arises, but it may be grounds for an adjournment of the appeal or a special order as to costs.

             (3)  Rule 57.07 shall, with the necessary changes, apply to a cross-appeal.

57.10 Stay

             (1)  The filing of a notice of appeal shall not operate as a stay of the order appealed from.

             (2)  The Court, on the application of a party to an appeal, may, pending disposition of the appeal, stay any order appealed from or any order of or proceeding before a judge of the Provincial Court or a tribunal in respect of which an order granting or refusing relief under rule 54 or otherwise has been appealed.

             (3)  A stay of an order for the payment of money shall not prevent interest from accruing in accordance with the rules generally and any other law.

             (4)  An order for a stay under this rule may be granted on such terms as the Court deems just.

             (5)  Where by an Act of Parliament or an Act of the Legislature or by these rules, the court, tribunal or judge appealed from is authorized, pending appeal, to stay the order appealed or the order of or proceeding before a judge of the Provincial Court or a tribunal referred to in rule 57.10(2), an application under this rule shall not be made unless and until, where authorized, an application is made before the court, tribunal or judge appealed from, except in the case of interlocutory orders of an injunctive nature.

57.11 Applications Respecting Initiation of Appeal

       (1) In addition to any other powers conferred by rule 57 or otherwise, the Court may at any time and on such terms as it deems just, on its own motion or on the application of any party to an appeal, order that

             (a)  a notice of appeal or of cross-appeal be served on a person not a party to the appeal, and make any further order as might have been made if the person had originally been a party; or

             (b)  service of a notice of appeal or notice of cross-appeal be effected by substituted service or that service be waived;

             (c)  leave or permission to appeal be granted or refused where by a statute application for leave or permission to appeal must be made to a judge before a notice of appeal can be filed; and

             (d)  a notice of appeal be struck out because of failure by the appellant to comply with rule 57 in respect thereof, provided that 10 days notice has been given to the appellant.

57.12 Directions to Clerk of Trial Court

                   Except in an appeal from an interlocutory order or an appeal as to costs only or a tribunal appeal or where otherwise ordered by the Court, the Registrar, on receiving a notice of appeal, shall forthwith request the clerk of the court appealed from to transmit to the Registrar the documents in the proceeding being appealed and a list of any exhibits that are not documents.

57.13 Security for Costs

             (1)  No security for costs shall be required in appeals unless by reason of special circumstances security is ordered by the Court upon application.

             (2)  Unless the Court otherwise orders, an appellant who fails to give security for costs as ordered shall be deemed to have abandoned the appeal and the respondent is entitled to costs.

57.14 Appeal Books

             (1)  Except in an appeal from an interlocutory order or an appeal as to costs only or where otherwise ordered by the Court, the appellant shall, within sixty days from the filing of the notice of appeal

             (a)  file with the Registrar four copies of an appeal book for the use of the Court; and

             (b)  deliver to each respondent or the respondent's solicitor a copy of the appeal book.

             (2)  When an appellant files a notice of appeal the appellant may give notice in writing to the Registrar and serve such notice on the other parties to the appeal that, instead of an appeal book as prescribed by this rule 57.14, the appellant will file and deliver a printed case in the form required by the rules of the Supreme Court of Canada.

             (3)  Except in an appeal from an interlocutory order, an appeal as to costs only or a tribunal appeal, or except where otherwise ordered by the Court or agreed to in writing by the parties, and filed with the Court, an appeal book shall consist of the following:

             (a)  Part I - Documents

                      (i)  index of the documents therein,

                     (ii)  the notice of appeal and cross-appeal of any party,

                    (iii)  the documents filed in the court appealed from but not including those required under rule 57.14(3)(b),

                    (iv)  the decision or order appealed from.

             (b)  Part II - Evidence

                      (i)  index of witnesses,

                     (ii)  list of all exhibits,

                    (iii)  copies of all exhibits that may be conveniently copied and are not voluminous,

                    (iv)  printed transcript of the evidence at the trial and, if authorized or ordered by the Court, one electronic copy of such evidence,

                     (v)  affidavits, written admissions, interrogatories and discovery evidence filed at the trial,

                    (vi)  statement of facts agreed to by the parties in lieu of any or all of items (iv) and (v).

             (c)  An appeal book shall be printed double-spaced on one side of letter size paper with the printed pages to the left and with each page numbered at the upper left.  If Part II is not lengthy it may be bound in the same volume with Part I.  Printing includes reproduction of copies by typing, offsetting, mimeographing, photocopying or any other process.

             (d)  The cover of the appeal book shall be grey and have marked thereon the number and short title of the appeal and each volume shall have marked thereon its number and the number of each part therein, and where any Part contains more than one volume, each volume shall repeat the index and show on its cover the page numbers contained in it.

             (4)  In a tribunal appeal, an appeal book shall be prepared so far as possible as prescribed by rule 57.14(3) but if any question arises, or if, except where the appellant is the tribunal itself, any transcript, exhibit or other document is in the control of the tribunal, the appellant may apply to the Court for directions and assistance, which may give directions as to the form and contents of the appeal book and may direct the tribunal to send to the Registrar any transcript, exhibit or other document for use on the appeal.

             (5)  The parties to an appeal or their solicitors may by agreement (which shall be part of the appeal book) agree to omit part or all of the transcript of evidence or of any other material which would normally be included in an appeal book, or agree to the inclusion of an agreed statement of facts in lieu of the transcript or exhibits, with the object of avoiding undue expense or delay by reproduction of material not necessary for the appeal.

             (6)  If a party wishes to abridge the appeal book as provided in rule 57.14(5), but is unable to secure agreement in writing of the opposite party or parties, the party so wishing may apply to the Court which may give directions as to the form and content of the appeal book.  Where the parties, or any of them, do not make reasonable efforts to abridge or limit the appeal book and it becomes apparent that such should have been done, the offending party or parties may be penalized in costs.

             (7)  The Court may require the parties, either jointly or severally, to file excerpts of relevant evidence.

57.15 Factums

             (1)  The appellant shall within 30 days after filing of the appeal book, or, subject to rule 57.20, within such further time as the parties agree upon or the Court allows, file with the Registrar four copies of a factum as prescribed by rule 57.15(3) and deliver a copy to each respondent.

             (2)  Each respondent shall within 30 days after being served with the appellant's factum, or, subject to rule 57.20, within such further time as the parties agree upon or the Court allows file with the Registrar four copies of a factum as prescribed by rule 57.15(3) and deliver a copy to each other party to the appeal.

             (3)  A factum shall consist of:

             (a)  An Index;

             (b)  Part I - Concise Statement of Facts;

             (c)  Part II - List of the Issues;

             (d)  Part III - Argument, not ordinarily to exceed 40 pages, unless otherwise authorized by the Court;

             (e)  Part IV - Order or relief sought, including any order as to costs;

              (f)  Appendix A - Copies of cases, from recognized law reports, and materials referred to in Part III with appropriate indexing and tabulation;

             (g)  Appendix B - Statutes and Regulations with appropriate indexing and tabulations (all relevant provisions shall be set forth in this appendix or in the appellant's factum, or offprints may be filed and served with the factum).

             (4)  If a cross-appeal involves matters not conveniently covered by a section of the respondent's factum, the respondent shall file and serve with the factum a second factum as a cross-appellant and the appellant (respondent on the cross-appeal) shall have 10 days after receiving the respondent's factum to file and serve, if the appellant wishes so to do, a separate factum as cross-respondent.

             (5)  Unless otherwise ordered by the Court, this rule 57.15 shall not apply to an appeal from an interlocutory order or an appeal as to costs only.

57.16 Form of Factum

                   A factum shall be double-spaced on one side of the paper only with the typed pages to the left.  All pages shall be numbered consecutively.  All paragraphs in a factum shall be numbered consecutively throughout the factum.  The covers of the appellant's factums shall be coloured buff or yellow and the covers of the respondents' factums (including factums as cross-appellants) shall be coloured blue.

57.17 Application to Strike Out or Dismiss

             (1)  Any party to an appeal may apply to the Court in accordance with rule 57.30 at any time before or at the hearing of the appeal for an order

             (a)  striking out the notice of appeal; or

             (b)  dismissing the appeal

on the grounds that:

             (c)  no appeal lies to the Court,

             (d)  the appeal is frivolous, vexatious or without merit,

             (e)  the appellant has unduly delayed the preparation and perfection of the appeal, or

              (f)  the appellant has failed to apply to have the appeal set down for hearing.

             (2)  The application shall state the reasons therefor and shall be supported by an affidavit setting forth any relevant facts not set forth in the order appealed from.

57.18 Application to Set Time for Hearing, etc.

             (1)  The Court shall at the beginning of each session set aside a day or a number of days in each month when applications for hearings shall be made to the Court.  Notice of such application shall be filed with the Court and served on other parties at least four clear days prior to the application day.

             (2)  Where the time for the filing of a factum by a party to an appeal other than the appellant has expired and the factum has not been filed, the appellant or any other party to the appeal who has filed a factum may apply to the Court to set a time for the hearing of the appeal.

             (3)  An application made in pursuance of rule 57.18(1) shall be accompanied by an affidavit verifying that the matter is ready for hearing.  Subject to further direction from the Court, an appeal shall be deemed to be perfected upon the filing of such application and affidavit.

             (4)  Where an application to set a time for the hearing of an appeal has been filed with the Court pursuant to rule 57.18(2), no factum in the matter shall thereafter be filed without leave of the Court.

             (5)  Leave to file a factum pursuant to rule 57.18(4) may be given upon such terms as the Court deems just and no such factum shall be filed otherwise than in accordance with such terms.

             (6)  A party to an appeal who has not filed a factum shall not be entitled to be heard on the hearing of the appeal, unless the Court otherwise orders.

             (7)  The Court may of its own motion set a time for the hearing of an appeal.


57.19 Discontinuance

                   An appellant may discontinue an appeal by filing with the Registrar and serving upon the respondent a notice stating that the appellant has so discontinued it, whereupon the appeal shall be at an end and the respondent shall be entitled to costs unless the respondent consents in writing on the notice that the respondent waives costs.

57.20 Striking Out and Deemed Abandonment of Appeals

             (1)  Where on a pending appeal six months have passed since the last step was taken, the Registrar may fix a time for the Court to consider whether to strike out the notice of appeal.

             (2)  After the Registrar has given notice in the manner required by this rule, the Court may

             (a)  after hearing any party who appears, or

             (b)  where no one appears,

strike out the notice of appeal.

             (3)  Notice referred to in rule 57.20(2) may be effected by service on the solicitor for the appellant or the appellant at the last known address indicated in the documents filed, and if any document filed to date indicates the solicitor of record for a respondent or respondents, or the address or addresses of a respondent or respondents where there is no solicitor of record, notice shall be so served.  Service may be by ordinary mail or by delivery confirmed facsimile transmission.

             (4)  Where on a pending appeal, in respect of which the notice of appeal was filed after January 1, 2000, 12 months have passed since the last step was taken and no order has been made pursuant to rule 57.20(2), the appeal shall be deemed to have been abandoned, the Registrar shall record the abandonment and the respondent shall be entitled to costs.

             (5)  Where on a pending appeal, in respect of which the notice of appeal was filed prior to January 1, 2000, 12 months, after January 1, 2000, have passed since the last step was taken and no order has been made pursuant to rule 57.20(2), the appeal shall be deemed to have been abandoned, the Registrar shall record such abandonment and the respondent shall be entitled to costs.

             (6)  Upon recording abandonment of any such appeal under rules 57.20(4) and (5), the Registrar shall send notice by ordinary mail or by facsimile transmission to the solicitors of record or to the parties at the last known addresses of such solicitors or parties as indicated in the documents filed in the appeal.  In the case of appeals referred to in rule 57.20(5) the Registrar shall, within three months of entry of such abandonment, publish notice of the same in the Newfoundland Gazette, which notice may be a single notice containing a list of all such appeals abandoned during the preceding three months.

             (7)  Inability or failure of the Registrar to effect any notice required by rule 57.20(6) shall not affect the deemed abandonment of an appeal.

             (8)  No proceedings shall thereafter be taken in any appeal deemed abandoned pursuant to rules 57.20(4) or (5) unless the same shall have been re-instated by the Court, which the Court may do on such terms as the Court deems just, which terms may include the payment to the respondent or respondents of costs to date on a solicitor and client basis, which the Court may order be paid by the solicitor who filed the notice of appeal or any solicitor named in a notice of change of solicitors, or both, personally if the Court is satisfied that the solicitor or solicitors is or are responsible for the failure to have proceeded with the appeal on a timely basis.

             (9)  The Court may, on application by a party prior to the date on which the appeal would be deemed to be abandoned, extend the date of deemed abandonment to such later date as may be appropriate.

57.21 Evidence

             (1)  The Court on the application of a party may on special grounds authorize evidence to be given to the Court on the hearing of an appeal on any question of fact as it directs.

             (2)  The evidence shall be taken by oral examination before the Court or by affidavit or deposition or in such manner as the Court directs.

             (3)  The Court on an appeal may on special grounds inspect or view any place, property or thing.

57.22 Prehearing Conferences

             (1)  The Court may at any time direct a prehearing conference.

             (2)  Where a direction is made under rule 57.22(1), the parties or their counsel shall attend before a Judge personally at a time and place directed, or in such other manner as the Judge may direct, to consider

             (a)  the simplification or isolation of issues on the appeal,

             (b)  the appropriateness of conducting a settlement or mediation hearing, or

             (c)  any other matter that might expedite the appeal.

             (3)  Discussions at a prehearing conference are without prejudice and shall not be referred to at the hearing of the appeal.

             (4)  The Judge conducting a prehearing conference, except by consent of the parties, shall not sit on the hearing of the appeal and shall not disclose to any member of the appeal panel what positions were taken or what admissions or concessions were made by the parties or their counsel at the conference.

             (5)  After a prehearing conference, the Judge who held it may make a direction on any matter referred to in rule 57.22(2), (a) to (c).

57.23 Powers of the Court

             (1)  Subject to the jurisdiction, powers and authority conferred on the Court by the Act or any other statute the Court may

             (a)  amend, set aside or discharge any order appealed from except one made in the proper exercise of such discretion as belongs to the court making the order or decision, unless an enabling statute specifically so authorizes;

             (b)  draw inferences of fact, allow any amendment, or make any order which might have been made by the court appealed from or which the appeal may require;

             (c)  make such order as to the costs of the proceeding or appeal as it deems fit;

             (d)  direct a new trial by jury or otherwise, or a further hearing for determination of any matter, and for that purpose direct that the order appealed from be set aside;

             (e)  postpone or adjourn the hearing of an appeal for such period as it deems just;

              (f)  make any order which the appeal may require.

             (2)  The powers of the Court may be exercised in respect of all or any part of the order or proceedings appealed from, notwithstanding that the notice of appeal states that part only of the order is complained of, and may be exercised in favour of all or any of the parties or other persons interested in the appeal, although they have not complained of the order appealed from.

             (3)  On or after hearing an application for leave to appeal, the Court, if it grants leave to appeal and if the merits of the appeal have been fully argued, may decide the appeal without further argument.

57.24 Sessions of the Court

             (1)  The Court shall sit at St. John's or elsewhere as the Chief Justice may direct.

             (2)  The Court shall sit at the following times, except as varied from time to time by the Chief Justice;

             (a)  between the Monday in September following Labour Day and the Friday in December nearest the fifteenth day of December, and

             (b)  between the Monday in January nearest the tenth day of January and the Friday in June nearest the thirtieth day of June.

             (3)  The Chief Justice or, in the absence of the Chief Justice, the senior Judge present or such other Judge as may be designated by the Chief Justice or the senior Judge present, shall preside at each sitting of the Court.

57.25 Delivery of Judgment

             (1)  The decision of the Court shall be given orally or in writing.

             (2)  An oral decision may be given at the conclusion of the hearing of an appeal or subsequently.

             (3)  A written decision confirming an oral decision may be filed subsequent to the giving of the oral decision and the written decision shall be the decision of the Court.

             (4)  A written decision shall be filed with the Registrar.

             (5)  Where there is more than one written decision the judgment of the Court shall be that indicated by the majority of the panel hearing an appeal.

             (6)  The judgment of the court shall be deemed to have been delivered on the date when a majority of the decisions of the Judges of the panel hearing the appeal have been filed or, if those decisions are in conflict, when a sufficient number of written decisions have been filed or assented to from which the majority view of the panel hearing the appeal may be determined.

             (7)  Where a decision is given in writing or given orally and later reduced to writing, the Registrar shall send a copy thereof, without charge, to the parties or their solicitors, to the court appealed from, and to such libraries and other persons as the Chief Justice authorizes in the particular case or generally.  Copies may be supplied to other persons on payment of the applicable charge therefor.

             (8)  Where a written decision is not filed, the Registrar shall notify the court appealed from of the result of the appeal.

57.26 Consent Judgment

                   The parties or counsel for the parties may consent to the reversal or variation of the judgment, order or proceeding appealed from by giving to the Registrar a notice of consent signed by the parties or counsel for the parties and thereupon the Court may, subject to such conditions as the Court may impose, pronounce judgment of reversal or variation accordingly.

57.27 Formal Order

             (1)  Upon a decision having been filed or deemed filed under rule 57.26, an order shall be drawn up by the successful party, and approved and initialled by the other party or parties, providing for the disposition of the appeal as directed by the Court.  Such order shall be approved by the Judge who acted as chair of the panel and be signed by and filed with the Registrar.  If such an order is not filed within 10 days after the decision is given, any other party to the appeal or the Registrar may draw up and file the order in accordance with this rule 57.27(1).

             (2)  Where the parties are unable to agree as to the formal order, either party may apply to the panel of the Court which heard the appeal, which may thereupon determine the form of the order for filing with the Registrar.

             (3)  Any party to an appeal who wishes the order amended to express better the intent of the decision of the Court may apply to the Court, which may thereupon correct or otherwise amend the formal order, and the amended order shall then without a change of date be signed and entered by the Registrar as the formal order disposing of the appeal.  For greater certainty, the provisions of rule 15.07 shall apply, with the necessary changes.

             (4)  Where the order appealed from has been reversed, and the order of the Court provides for the payment of money, the order shall, unless otherwise directed by the Court, bear interest from the date of the order reversed.

57.28 Disposition of Files, etc.

                   The Registrar shall preserve the appeal book, factums, other documents and orders, and unless the Court otherwise orders, return to the court appealed from all files and exhibits received from it, unless the matter is appealed to the Supreme Court of Canada, in which event the Registrar shall comply with the rules of that court.  The Registrar shall not return the files and exhibits to the court appealed from until the time for appeal or application for leave to appeal to the Supreme Court of Canada has expired.


57.29 Entry of Orders by Registrar

             (1)  Where an order of the Court has been certified by the Registrar to the clerk of the court or tribunal from which the appeal was taken, the latter shall thereupon cause it to be entered in the proper book and all subsequent proceedings may be taken thereon as if the order had been granted by the court appealed from.  For the purposes of the Judgment Enforcement Act, enforcement proceedings may be taken as if the date of the order appealed from is the date on which the order of the Court is filed in this Court.

             (2)  When an order of the Supreme Court of Canada has been certified by the registrar of that court to the clerk of the court or tribunal from which the appeal was taken, the clerk shall thereupon cause it to be entered in the proper book and all subsequent proceedings may be taken thereon as if the order had been granted by the court or tribunal appealed from.

57.30 Interlocutory Applications to the Court

             (1)  An interlocutory application may be made to the Court under this rule 57.30 in any appeal or other matter where by this or any other rule or under the Supreme Court of Canada Act or any other statute an interlocutory application may be made by notice, motion, petition or otherwise to the Court.

             (2)  An interlocutory application to the Court shall be in Form 57.30A and shall concisely set out the grounds of the application and the relief sought, be supported by affidavit as to the facts raised and to be relied upon in the application, and be accompanied by a memorandum of the points of argument and a list of authorities relied upon.

             (3)  An intended applicant may apply ex parte to the Registrar of the Court to set a time for the hearing of the interlocutory application and that date having been set, shall serve copies of the documentation filed and a copy of any proposed order on all other parties at least four clear days before the hearing, unless by any rule or statute any other length of notice is required or permitted.

             (4)  A party opposing the application shall file with the Registrar any affidavit or memorandum on which that party relies and serve a copy thereof on the applicant and on any other parties at least 48 hours before the time of hearing.  The memorandum shall contain the points of argument and a list of authorities relied on.

             (5)  An application may be made ex parte where

             (a)  under a statute or rule notice is specifically not required;

             (b)  the opposing party has in writing waived notice or consented to the order proposed by the applicant; or

             (c)  the Court authorizes the application to be made ex parte.

             (6)  The Court may order that

             (a)  notice of an interlocutory application be served on such persons as it directs;

             (b)  the hearing of an interlocutory application be adjourned to permit such service;

             (c)  service of notice on a person be dispensed with;

             (d)  the hearing of an interlocutory application be adjourned, continued or dismissed if a person, who ought to have been served, has not been served;

             (e)  the interlocutory application be referred to the Court for hearing and disposition as if it were an appeal;

              (f)  any time prescribed by this rule be extended or abridged before or after the expiration thereof.

             (7)  In cases where the giving of evidence is permissible, rule 29.09 shall, with the necessary changes, apply to the hearing of an interlocutory application under rule 57.30.

             (8)  Rules 29.11 and 29.12 shall, with the necessary changes, apply to an interlocutory application under rule 57.30.

             (9)  Costs of any interlocutory application shall be in the discretion of the Court.


57.31 Miscellaneous Powers

             (1)  On an appeal, the Court may give any directions respecting the conduct of the appeal that it considers necessary.

             (2)  The Court may dispense with compliance with a rule in a proceeding, except in relation to reinstatement of an appeal deemed abandoned under rule 57.20.

             (3)  The court may issue practice notes on any matter respecting appeals.

             (4)  Where an application is heard and disposed of by a single judge pursuant to Section 10 of the Judicature Act, the matter may, with leave of the Chief Justice, be reheard by a panel of the Court.


57.02A
(rule 57.02)
19    No.
IN THE SUPREME COURT OF NEWFOUNDLAND
COURT OF APPEAL

BETWEEN:  A.B. INTENDED APPELLANT

                                             and

                                             C.D. INTENDED RESPONDENT

NOTICE OF APPLICATION FOR LEAVE TO APPEAL

                   TAKE NOTICE THAT the Appellant applies for leave to appeal and, if granted, will appeal from the order or decision of (the Honourable Justice          ) dated the (day) day of (month), (year), being an interlocutory order or decision respecting (set out matter) in proceedings in the (Supreme Court) bearing No.    (insert trial court number).

                   AND THAT the grounds of the proposed application are:
(set out grounds for allowing application)

                   AND THAT the Appellant will request that leave be granted to appeal the order or decision appealed from and that the Appellant be permitted to issue a Notice of Appeal on the following grounds:

 

(set out grounds of appeal)

DATED AT                    , Newfoundland, this (day) day of (month), (year).

(Sgd.)  A.B.
or
(M.N.
Solicitor for Applicant
Whose address for service
is           , Newfoundland)

TO   (the Respondent or his or her Solicitor
                      (give name and address)


57.03A
(rule 57.03)
19     No.
IN THE SUPREME COURT OF NEWFOUNDLAND
COURT OF APPEAL

BETWEEN:  A.B. APPELLANT

                                             and

                                             C.D. RESPONDENT

NOTICE OF APPEAL

                   TAKE NOTICE THAT the Appellant appeals from the order or decision of (the Honourable Justice           ) dated the (day) day of (month), (year) in proceedings in the (Supreme Court) bearing No. (inset trial court number).

                   AND THAT the grounds of the proposed appeal are:

 

(set out grounds of appeal)

                   AND THAT the Appellant will request that the order or decision appealed from be (reversed)(rescinded)(varied) as follows: (Set out the relief or other disposition that is sought).

DATED AT                           , Newfoundland, this (day) day of (month), (year).

(Sgd.)  A.B.
or
(M.N.
Solicitor for Applicant
Whose address for service
is           , Newfoundland)

TO   (the Respondent or his or her Solicitor
                      (give name and address)


57.30A
(rule 57.30)
19       No.
IN THE SUPREME COURT OF NEWFOUNDLAND
COURT OF APPEAL

BETWEEN:  A.B. APPELLANT

                                             and

                                             C.D. RESPONDENT

INTERLOCUTORY APPLICATION

                   The Application of A.B., the (Appellant) (Respondent) herein says:

               1.  (Set forth material facts).

               2.  The (Appellant) (Respondent) therefore applies for an order that (set forth relief sought).

DATED at                               , Newfoundland the (day) day of (month), (year).

(Sgd.)  A.B.
or
(M.N.
Solicitor for Applicant)

(Attach Affidavit of Applicant in support)


 



Commencement

        2. This Rule comes into force on January 1, 2000.