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Newfoundland and Labrador
Regulation 2003


NEWFOUNDLAND AND LABRADOR REGULATION 9/03

NEWFOUNDLAND AND LABRADOR
REGULATION 9/03

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

(Filed January 22, 2003)

Under the authority of section 55 of the Judicature Act, the Rules Committee of the Trial Division makes the following rules.

Dated at St. John’s, January 21, 2003.

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

RULES

Analysis


        1.   Rule 5 Amdt.
Commencement of proceedings

        2.   Rule 6 R&S
Originating and other documents: service

        3.   Rule 8.03 Amdt.
Appointment of guardian where person under disability does not oppose proceeding

        4.   Rule 10 Amdt.
Defences; filing and service; setting aside originating document

        5.   Rule 12.04 Amdt.
Issue and service of third party notice

        6.   Rule 14.01 Amdt.
Service of pleadings

        7.   Rule 27.07 Amdt.
Sheriff's duty under interlocutory recovery order

        8.   Rule 46.17 Amdt.
Service of notice

        9.   Rule 53.02 Amdt.
Application for leave to apply for a contempt order

      10.   Commencement


 

        1. (1) Rule 5.04(1)(c) of the Rules of the Supreme Court, 1986 is repealed and the following substituted:

             (c)  issue the originating document by signing it and filing it in the Registry.

             (2)  Rules 5.05(2) and (3) of the rules are repealed.

 

        2. Rule 6 of the rules is repealed and the following substituted:

RULE 6
ORIGINATING
AND OTHER DOCUMENTS: SERVICE

General provisions

 

  6.01. (1) An originating document shall be served personally on each defendant as provided in rule 6.02 or by an alternative to personal service as provided in rule 6.03, except on an ex parte application or where a rule otherwise provides.

             (2)  Documents that are not originating documents do not have to be served personally or by an alternative to personal service unless expressly required by a statute or rule or a Court order.

             (3)  An originating document does not have to be served personally or by an alternative to personal service where the defendant unconditionally files a defence or unconditionally appears on the application.

             (4)  A document that does not have to be served personally or by an alternative to personal service may be served as provided in rule 6.11 or 6.12.

Personal Service

 

  6.02. (1) Personal service of a document shall be made on

             (a)  an individual, by leaving a copy of the document with the individual;

             (b)  a body corporate, by leaving a copy of the document with the president, chairman, mayor or other chief officer of the body corporate, or with the manager, secretary, city or town manager or clerk, or other similar officer thereof, or in the manner provided by the Corporations Act;

             (c)  a partnership sued in the partnership name, by leaving a  copy of the document with one or more of the partners, or with a person at the principal place of business of the partnership who appears to manage or control the partnership business there; provided that, if the partnership has been dissolved to the knowledge of the plaintiff before the proceeding is commenced the document shall be served on every person sought to be made liable;

             (d)  a minor, by leaving a copy of the document with his or her father, mother or guardian, or if there is no father, mother or guardian, with the person with whom the minor resides or in whose care the minor is, or with the person appointed by the Court; and

             (e)  a mentally incompetent person, by leaving a copy of the document with his or her guardian, or if there is no guardian, with the person with whom the mentally incompetent person resides or in whose care the mentally incompetent person is, or with the person appointed by the Court,

and it is not necessary to show the original document.

             (2)  Where the Court has jurisdiction in a proceeding in respect of a contract, or a contract confers jurisdiction on the Court, and in the contract the parties have agreed on

             (a)  a place of service;

             (b)  a mode of service; or

             (c)  a person upon whom service may be made,

service of the originating document in the proceeding in accordance with the contract is considered to be personal service.

             (3)  A contractual stipulation for service of a document that commences a proceeding does not invalidate a service otherwise valid.

Alternatives to personal service

 

  6.03. (1) Where a document may be served by an alternative to personal service, service shall be made in accordance with this rule.

             (2)  Service on a party who has a solicitor is made where the solicitor endorses on the document or a copy of it that he or she accepts service on behalf of a person and the date of the acceptance.

             (3)  Service of a document may be made by sending a copy of the document to the residential or postal address of the person to be served

             (a)  by registered mail or certified mail, in which case service is effective on the date the document was delivered to the person as shown on the confirmation of delivery obtained from Canada Post Corporation; or

             (b)  by sending the document by ordinary mail enclosing an acknowledgement of receipt form, Form 6.03A, and a self-addressed envelope with sufficient postage to return the envelope to the sender, in which case service is effective on the date the sender receives the form bearing a signature that purports to be the signature of the person to be served.

Substituted service

 

  6.04. (1) Where an attempt to personally serve a person at his or her residence is unsuccessful, service may be made, without the need to seek an order of the Court, by

             (a)  leaving a copy, in a sealed envelope addressed to the person, at the residence with a person who appears to be an adult member of the same household; and

             (b)  mailing another copy of the document to the person at their residence by ordinary mail on the same day as the attempted personal service or the following day.

             (2)  Where it is impracticable for any reason to serve an originating document personally or by an alternative to personal service, the Court may make an order for substituted service or an order dispensing with service.

             (3)  Substituted service of an originating document is made by taking such steps as the Court has ordered to bring the document to the attention of the person to be served.

             (4)  The court shall specify in an order for substituted service when service in accordance with the order is considered to be effective, for the purpose of computation of time under these rules.

             (5)  Where an order is made dispensing with service of a document, the document is considered to have been served on the date the order is signed, for the purpose of computation of time under these rules.

             (6)  Where an originating document contains a claim for the possession of land, the Court may,

             (a)  if satisfied on an application made without notice to a party, that no person appears to be in possession of the land and that service could not otherwise be made on a defendant, authorize service on that defendant to be made by attaching a copy of the originating document to some conspicuous part of the land; or

             (b)  make such other order as it thinks just.

             (7)  An application for an order for substituted service shall be supported by an affidavit stating why it is impractical to serve the document by personal service or an alternative to personal service, and proposing a substitute method of service which, in the opinion of the deponent will, or is likely to, be effective.

             (8)  An application for an order dispensing with service shall be supported by an affidavit setting out:

             (a)  evidence which enables the court to draw the inference that the person is likely to be aware that process has been or is about to be issued against him or her and is evading service; or

             (b)  other evidence which satisfies the court that the interests of the plaintiff in proceeding with the matter without notice to the person outweigh the potential prejudice to the person of not knowing that proceedings have been taken against him or her.

Where notice not received

 

  6.05. On an application to set aside the consequences of not filing a defence or appearing on an application, an application for an extension of time or an adjournment, a person may show, even though he or she was served with a document in accordance with Rule 6, that the document

             (a)  did not come to the person's notice; or

             (b)  did come to the person's notice at a time later than when it was served.

Validating service

 

  6.06. Where a document has been served in an unauthorized or irregular manner, the court may make an order validating the service where the Court is satisfied that

             (a)  the document came to the notice of the person to be served; or

             (b)  the document would have come to the notice of the person to be served, except for the person's own attempts to evade service.

Service of an originating document out of the province

 

  6.07. (1) A document by which a proceeding is commenced may be served outside of the province where,

             (a)  the whole subject matter is land situated within the province (with or without rents or profits) or the perpetuation of testimony relating to lands so situated;

             (b)  any act, deed, will, contract, obligation or liability affecting land situated within the province is sought to be construed, rectified, set aside or enforced;

             (c)  relief is sought against a person domiciled or ordinarily resident within the province;

             (d)  the proceeding is for the administration of the estate of a person who died domiciled within the province, or for any relief or remedy which might be obtained in any such proceeding;

             (e)  the proceeding is for the execution as to property situated within the province of the trusts of a written instrument that ought to be executed according to the law of the province, and of which the person to be served is a trustee, or the proceeding is for any relief or remedy which might be obtained in any such proceeding;

              (f)  the proceeding is to enforce, rescind, resolve, annul or otherwise affect a contract or to recover damages or obtain any other relief in respect of the breach of a contract, being (in any case) a contract

                      (i)  made within the province,

                     (ii)  made by or through an agent trading or residing within the province on behalf of a principal trading or residing out of the province,

                    (iii)  which is by its terms, or by implication governed by the law of the province, or

                    (iv)  in which the parties thereto agree that the courts of the province shall have jurisdiction to entertain any action in respect of the contract;

             (g)  the proceeding is in respect of a breach committed within the province of a contract made within or out of the province, and irrespective of the fact, if that is the case, that the breach was preceded or accompanied by a breach committed out of the province that rendered impossible the performance of so much of the contract as ought to have been performed within the province;

             (h)  the proceeding is founded on a tort committed within the province;

              (i)  in the proceeding an injunction is sought ordering a defendant to do or refrain from doing anything within the province (whether or not damages are also claimed in respect of a failure to do or the doing of that thing);

              (j)  a person out of the province is a necessary or proper party to a proceeding properly brought against another person served within the province;

             (k)  the proceeding is by a mortgagee of property situated within the province and seeks the sale of the property, the foreclosure of the mortgage or delivery by the mortgagor of possession of the property (but not an order for the payment of any monies due under the mortgage);

              (l)  the proceeding is brought by a mortgagor of property situated within the province and seeks redemption of the mortgage, reconveyance of the property or delivery by the mortgagee of possession of the property (but not one which seeks to enter a personal judgment);

            (m)  the proceeding is founded upon an order of any court of the province;

             (n)  the proceeding is a probate action otherwise engaging the jurisdiction of the court; or

             (o)  by statute a proceeding may be commenced in the province.

             (2)  Where rule 6.07(1) does not apply, the court may, upon an application supported by affidavit or other evidence showing that the proceeding has a real and substantial connection to the province and showing in what place or country the defendant is or probably may be found, order that an originating document be served on the defendant in that place or country and make another order as it thinks fit.

             (3)  An originating document that is served outside the province without leave under rule 6.07(1) shall identify which paragraph of rule 6.07(1) permits that service and set out the supporting facts.

             (4)  Where an originating document is served outside the province with leave under rule 6.07(2), the originating document shall be served with a copy of the order granting leave and a copy of the affidavit used to obtain the order.

             (5)  Notwithstanding rule 10.02(1), where an originating document is served outside the province under rule 6.07(1) or (2), the time for filing a defence or to appear on the hearing of an application shall be

             (a)  30 days, where the document is served on a person residing in Canada;

             (b)  45 days, where the document is served on a person residing in the United States of America; or

             (c)  60 days, where the document is served on a person residing elsewhere,

unless otherwise ordered by the court.

             (6)  Where an originating document is served under rule 6.07(1) or (2), the Court has jurisdiction to proceed and adjudicate in the proceeding as if the defendant or respondent had been properly served within the jurisdiction of the Court.

             (7)  A person who has been served with an originating document outside of the province may apply without submitting to the jurisdiction of the court, before filing or serving a defence or appearing on an application,

             (a)  for an order setting aside the service and any order that authorized the service; or

             (b)  for an order staying the proceeding.

             (8)  Where the court concludes on an application under rule 6.07(7) that service outside the province was not authorized by rule 6.07(1), but the case is one in which it would have been appropriate to grant leave to serve under rule 6.07(2), the court may make an order validating the service.

Originating document: manner of service outside the province

 

  6.08. (1) In rules 6.08, 6.09 and 6.16,

             (a)  "contracting state" means a contracting state under the Hague Convention

             (b)  "Hague Convention" means the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters.

             (2)  An originating document may be served outside the province in a jurisdiction that is a contracting state in a manner permitted under the Hague Convention.

             (3)  An originating document may be served outside the province in a jurisdiction that is not a contracting state

             (a)  in a manner provided by these rules for service within the province, or

             (b)  in a manner provided by the law of the jurisdiction where service is made if, by that manner of service, the document could reasonably be expected to come to the notice of the person to be served.

Originating document: proof of service out of the province

 

  6.09. (1) Service of an originating document outside the province in a jurisdiction that is a contracting state may be proved in accordance with the Hague Convention.

             (2)  Service of an originating document outside the province in a jurisdiction that is not a contracting state may be proved

             (a)  in a manner provided by these rules for proof of service within the province, or

             (b)  in the manner provided for proof of service by the law of the jurisdiction where service is made.

Pleading: service

 

  6.10. A statement of claim with notice attached shall be served as provided in rule 6.01(1); a defence as provided in Rule 10; a counterclaim or defence thereto as provided in Rule 11; and a third party notice or defence thereto as provided in Rule 12.

Service of non-originating documents

 

  6.11. (1) Service on any person of a document, not being a document required by these rules to be served personally or by an alternative to personal service, may be made

             (a)  by leaving the document or a copy at the person's address;

             (b)  by mailing the document or a copy addressed to the person at the person's proper address;

             (c)  in accordance with Rule 6A; or

             (d)  in such other manner as the Court may order.

             (2)  For the purpose of rule 6.11(1), the proper address of a party is

             (a)  the address for service of the party's solicitor as shown on the originating document or pleading; or

             (b)  where a party brings or opposes a proceeding in person, the party's address for service within the jurisdiction as shown on the originating document or pleading.

             (3)  For the purposes of rule 6.11(1), the proper address of a person who is not a party, or of a party whose proper address is not shown on the originating document or pleading shall be

             (a)  in any case, the business address of the solicitor who is acting for that party in the proceeding at which service of the document in question is to be made;

             (b)  in the case of an individual, his or her usual or last known address;

             (c)  in the case of individuals who are suing or being sued in the name of the firm, the principal or last known place of business of the firm within the jurisdiction; and

             (d)  in the case of a body corporate, the registered or principal office thereof.

             (4)  Unless the contrary is proven, any document served by post shall be considered to be served,

             (a)  where the delivery is within the province, on the seventh day following that upon which the letter, envelope or wrapper containing the document is posted, and in proving such service it shall be sufficient to prove that the letter, envelope or wrapper containing the document was properly addressed and put in the post office with the postage prepaid thereon; and

             (b)  where the delivery is outside the province, on the day the document would in the normal course of post be delivered.

             (5)  Where a person attends during regular office hours at the office of a solicitor of a party to serve a document that does not commence a proceeding and the office of the solicitor is closed or no one is in attendance to accept service of the document, service may be made by mailing the document, postage prepaid, at any time during the same day addressed to the solicitor at the solicitor's office, and the document shall be considered to have been served at the time of the attendance at the office of the solicitor.

             (6)  Nothing in this rule shall be taken as prohibiting personal service of any document or as affecting any statute which provides for the manner in which a document may be served.

Service of certain documents on person under disability

 

  6.12. (1) Where a document not required by these rules to be served personally or by an alternative to personal service is to be served on a person under disability, service shall be made in accordance with this rule.

             (2)  Subject to the following provisions of this rule the document shall be served,

             (a)  in the case of a minor who is not also a mentally incompetent person, on the minor and

                      (i)  where the minor resides with a parent, guardian or another person who has the care or custody of the minor, on the parent, guardian or other person, and

                     (ii)  where the Court has appointed a guardian of the minor, on the guardian.

             (b)  in the case of a mentally incompetent person, on the guardian of the estate of the mentally incompetent person or the guardian ad litem of such person or, if there is no such guardian, on the person with whom the mentally incompetent person resides or in whose care the mentally incompetent person is.

             (3)  Notwithstanding rule 6.12(2), the Court may order that a document which has been, or is to be, served on the person under disability or on a person other than a person mentioned in that paragraph, shall be considered to be duly served on the person under disability.

             (4)  An order requiring a person to do or refrain from doing any act, other than pursuant to a form of discovery, or where an order is for the committal of such a person, the order shall also, if that person is a person under disability, be served personally on that person unless the Court otherwise orders.

Effect of service after certain hours

 

  6.13. Personal service of originating and other documents may be made on any day of the week provided that for the purpose of computing a period of time subsequent to that service

             (a)  a document served after the hour of five in the afternoon on Monday to Thursday shall be considered to have been served on the day following the day of service; and

             (b)  a document served after the hour of five in the afternoon on Friday or served on Saturday or Sunday shall be considered to have been served on the following Monday.

Affidavit of service

 

  6.14. (1) The service of a document may be proved by an affidavit in Form 6.14A.

             (2)  A written acceptance of service of a document by a party's solicitor or a party's agent need not be verified by affidavit.

No service required in certain cases

 

  6.15. Where under a rule, a document is required to be served on a person but is not required to be served personally or by an alternative to personal service, and, at the time when service is to be made, the person is in default as to filing a defence or appearing on an application or has no address for service, the document need not be served on that person unless the Court otherwise orders or a rule otherwise provides.

Default under the Hague Convention

 

  6.16. (1) Where an originating document has been transmitted abroad for the purpose of service under the provisions of the Hague Convention and no certificate of service or delivery has been received, notwithstanding the provision of the first paragraph of Article 15 of the Hague Convention, the Court may give judgment if the conditions set out in the second paragraph of Article 15 of the Hague Convention are fulfilled.

             (2)  Notwithstanding rule 6.16(1), the Court may order, in case of urgency, any provisional or protective measures.

             (3)  Where an originating document has been transmitted abroad for the purpose of service under the provisions of the Hague Convention and a judgment has been entered against a defendant who has not defended, the Court, on application, may relieve the defendant from the effects of the expiration of the time for appeal from the judgment if the conditions set out in the first paragraph of Article 16 of the Hague Convention have been fulfilled, but the Court will not entertain an application for such relief filed after the expiration of one year following the date of judgment.

             (4)  Rule 6.16(3) shall not apply to judgments concerning the status or capacity of persons.


Form 6.03A

(rule 6.03(3))

Acknowledgement Of Receipt Form

20____No. ___

In the Supreme Court of Newfoundland and Labrador
Trial Division

BETWEEN A.B. ___________________________PLAINTIFF

and

                      C.D. ___________________________DEFENDANT

 

TO: (full name)

You are served by mail with the documents enclosed with this form in accordance with the Rules of Supreme Court, 1986.

You are requested to sign the acknowledgement below and mail this form immediately after you receive it.  If you fail to do so, the documents may be served on you in another manner and you may have to pay the costs of service.

ACKNOWLEDGEMENT OF RECEIPT

I ACKNOWLEDGE that I have received a copy of the following documents: (To be completed in advance by the sender of the documents.  Include sufficient particulars to identify each document).

 

________________________
(signature of person served)


Form 6.14A

(rule 6.14(1))

Affidavit Of Service

20____No. ___

In the Supreme Court of Newfoundland and Labrador
Trial Division

BETWEEN A.B. ___________________________PLAINTIFF

and

                      C.D. ___________________________DEFENDANT



I, (your name), of (city of residence), make oath and say as follows:

(Personal Service)

1. On (date), at (time), I served (identify person served) with the (identify documents served) by leaving a copy with him (or her) at (address where service was made). (Where the rules provide for personal service on a corporation, etc. by leaving a copy of the document with another person, substitute: by leaving a copy with (identify person by name and title) at (address where service was made).)

2. I was able to identify the person by means of (state the means by which the person's identity was ascertained.)

(Service by leaving a copy with an adult person in the same household as an alternative to personal service)

1. I served (identify person served) with the (identify documents served) by leaving a copy on (date), at (time), with a person (insert name if known) who appeared to be an adult member of the same household in which (identify person served) is residing, at (address where service was made), and by sending a copy by regular lettermail (or registered or certified mail) on (date) to (identify person served) at the same address.

2. I ascertained that the person was an adult member of the household by means of (state how it was ascertained that the person was an adult member of the household).

3. Before serving the documents in this way, I made an unsuccessful attempt to serve (identify person) personally at the same address on (date). (If more than one attempt has been made, add: and again on (date).)

(Service by registered mail as an alternate to personal service)

1. On (date), I sent to (identify person served) by registered mail with Canada Post Corporation item # _____ attached to the envelope, a copy of the (identify documents served).

2. Attached is the confirmation of delivery receipt obtained from Canada Post Corporation for item # _____ showing the envelope was delivered to (identify person served) on (date of receipt).

3. The item # on the confirmation of delivery receipt is identical to the item number on the registered mail receipt obtained from Canada Post Corporation for the envelope sent to (address where mail was delivered).

(Service by certified mail as an alternative to personal service)

1. On (date), I sent to (identify person served) by certified mail a copy of the (identify documents served).

2. I received the attached receipt card from Canada Post Corporation which indicates the documents were received on (date) and which bears a signature that purports to be the signature of (identify person).

(Service by regular lettermail as an alternative to personal service)

1. On (date), I sent to the (identify person served) by regular lettermail a copy of the (identify documents served) together with an acknowledgment of receipt form.

2. On (date), I received the attached acknowledgment of receipt form bearing a signature that purports to be the signature of (identify person).

 

SWORN (OR AFFIRMED) to at St. John's, Newfoundland and Labrador this _______ day of _______, 20_____, before me:

___________________________________

 

 


 

 

        3. Rule 8.03(3) of the rules is amended by striking out "rule 6.03" and substituting "rule 6.02".

 

        4. (1) Rule 10.04 of the rules is repealed and the following substituted:

Service of defence

 

10.04. A defendant shall serve a copy of the defence on the plaintiff in accordance with rule 6.11.

             (2)  Rule 10.05(1)(c) of the rules is repealed and the following substituted:

             (c)  setting aside any order giving leave to serve the originating document on the defendant; or

 

        5. Rule 12.04(1) of the rules is repealed and the following substituted:

Issue and service of third party notice

 

12.04. (1) A third party notice shall be issued in accordance with rule 12.02(1) and served on the third party in accordance with rule 6.02 or 6.03, and a copy of the order, if any, and a copy of the originating document and any pleadings in the proceeding between the plaintiff and the defendant shall be served with the third party notice.

 

        6. Rule 14.01(1) of the rules is repealed and the following substituted:

Service of pleadings

 

14.01. (1) A statement of claim shall be served as provided in rules 6.01(1) and 6.07, a defence as provided in rule 10.04, a counterclaim and defence thereto as provided in rules 11.01 and 11.02, and a third party notice and defence thereto as provided in rules 12.03 and 12.04.

 

        7. Rule 27.07(1) of the rules is amended by striking out "rule 6.03(1)(b)" and substituting "rule 6.02(1)(b)".

 

        8. Rule 46.17 of the rules is amended by striking out "rule 6.15(1)" and substituting "rule 6.14(1)".

 

        9. Rule 53.02(3)(c) of the rules is repealed and the following substituted:

             (c)  order service of the application and any supporting affidavit to be made by alternative service in accordance with rule 6.03 or substituted service in accordance with rule 6.04.

Commencement

      10. These rules shall come into force on  February 1, 2003.