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Consolidated Newfoundland Regulation 1996


CONSOLIDATED NEWFOUNDLAND REGULATION 1167/96

CONSOLIDATED NEWFOUNDLAND REGULATION 1167/96

Small Claims Rules
under the
Small Claims Act
(O.C. 96‑879)

Under the authority of section 7 of the Small Claims Act and the Subordinate Legislation Revision and Consolidation Act, the Lieutenant‑Governor in Council makes the following rules.

RULES

Analysis


        1.   Short title

        2.   Interpretation

        3.   Filing a claim

        4.   Records kept by the court

        5.   Expiry of summons

        6.   Service of documents

        7.   Default judgment and orders

        8.   Setting aside default judgment

        9.   Trial, procedure and judgment

      10.   Witnesses

      11.   Notice of tender

      12.   Transfer to more convenient district

      13.   Amendments

      14.   Set‑offs

      15.   Dismissing claims

      16.   Proving claims

      17.   Discontinuance

      18.   Judgment

      19.   Third parties

      20.   Enforcement of judgment

      21.   Attachment of wages

      22.   Distress warrants

      23.   Interpleader

      24.   Judgment summons

      25.   Signing documents

      26.   Person under 19

      27.   Settlement conference

      28.   Summary judgment

      29.   Directions

      30.   Form of orders

      31.   List of documents

      32.   Costs and fees

      33.   Repeal

Schedule


Short title

        1. These rules may be cited as the Small Claims Rules.

62/80 s1

Interpretation

        2. (1) In these rules

             (a)  "clerk" means a clerk of the court;

             (b)  "costs" includes disbursements;

             (c)  "peace officer" means a peace officer as defined in the Criminal Code; and

             (d)  "proceeding" means, for the purpose of section 31, a trial, application or settlement conference.

             (2)  A reference to a form in these rules refers to a form required by the court.

62/80 s2

Filing a claim

        3. (1) A person who has a claim that may be dealt with under the Act may, in person or by his or her solicitor or agent, apply to have an originating summons issued in the prescribed form by

             (a)  filing a statement of claim in the prescribed form with the court; or

             (b)  filing an abandonment of claim in the prescribed form where the amount claimed exceeds the jurisdiction of the court.

             (2)  Where a statement of claim is filed with the court in accordance with subsection (1) on receipt of the fees as prescribed in the Schedule, the court

             (a)  may issue an originating summons in the prescribed form;

             (b)  shall have the summons, when issued, together with documents prescribed by these rules, to be served upon the defendant or other person authorized to accept service; and

             (c)  in cases involving damage from motor vehicle collision, the statement of claim shall have attached to it either an itemized estimate of damage from a qualified mechanic or a receipt for repairs done by a qualified mechanic.

62/80 s3; 340/80 s1; 188/87 s1; 125/93 s1

Records kept by the court

        4. The court shall keep records of

             (a)  the number of each summons, the dates of the issue of those summonses and return, and all documents relating to each claim;

             (b)  the names of the plaintiff and defendant;

             (c)  the particulars of the claim; and

             (d)  the judgment, its date and particulars and, if known, how the judgment was satisfied,

in relation to a claim.

62/80 s4

Expiry of summons

        5. (1) An originating summons in the prescribed form shall be valid for 12 months from the date it is issued by the court.

             (2)  An originating summons may be renewed by a court for a period of 12 months or less.

62/80 s5

Service of documents

        6. (1) A document may be served

             (a)  by mailing a copy to the person to be served by registered or certified mail to his or her last known postal address;

             (b)  by personal service on the person to be served;

             (c)  by personal service on a person, who appears to be 16 years of age or older, at the usual residence of the person to be served;

             (d)  where the address of the person is not known, by leave of a judge, by advertising in a newspaper circulating in the area of his or her last known address once weekly for a period of 2 weeks; or

             (e)  upon a witness by personal service to the witness with his or her witness fee.

             (2)  Personal service of documents may be proved by a written or oral statement under oath or affirmation by the person who effected the service.

             (3)  Service of documents by registered or certified mail may be proved by production of the receipt from the Canada Post Office.

             (4)  Where a defendant is under 19 years of age, the statement of claim shall be served as set out in subsection (1) on the defendant and on the defendant's mother, father or guardian unless a judge orders otherwise.

             (5)  Where a party has failed to serve another party, that party may apply to a judge in the prescribed form for an order for substituted service in the prescribed form on the terms the court considers just.

62/80 ss7&8; 77/83 s1; 125/93 ss2‑4

Default judgment and orders

        7. (1) Where, following the expiration of 10 days after service of an originating summons, a defence, counterclaim, set‑off or response is not filed with the court, the plaintiff or his or her solicitor or agent may proceed to a default judgment by

             (a)  filing an affidavit in the prescribed form, sworn to or affirmed by a person having actual knowledge of the claim with the court; and

             (b)  subsequently filing with the court a default judgment in the prescribed form.

             (2)  Where the documents referred to in subsection (1) have been filed, the court shall serve a notice of default judgment and order in the prescribed form on the defendant by registered or certified mail.

             (3)  Notwithstanding subsection (2), where a judge is satisfied, either by the filing of an affidavit or by oral evidence, that a judgment debtor is about to leave the province, or part with the whole or a portion of his or her property or assets, or be separated from his or her employment, a judge may issue orders of execution immediately.

62/80 s9; 21/81 s1; 125/93 s5

Setting aside default judgment

        8. (1) Within one year of receipt of notice of default judgment and order in the prescribed form, a defendant may apply to the court to reopen the judgment by filing an application and affidavit in the prescribed form with the court.

             (2)  Upon receipt of affidavit and application referred to in subsection (1), a judge may issue an order in the prescribed form setting aside the default judgment or may allow the default judgment to stand as the facts and circumstances require.

62/80 s10

Trial, procedure and judgment

        9. The court may set a date for trial and notify the parties in the prescribed form, where 2 copies of

             (a)  a defence, counterclaim, set‑off or response; and

             (b)  where applicable, a notice of tender in the prescribed form have been filed and issued by the court, and where section 27 has been complied with.

125/93 s6

Witnesses

     10. (1) Where either party to the action wishes to formally subpoena witnesses, a subpoena in the prescribed form shall be served and proven in the manner provided by these rules.

             (2)  Where a witness refuses or neglects to attend in answer to a subpoena, a judge may issue a warrant of arrest in the prescribed form to compel the witness to attend to give evidence and be further dealt with according to law.

62/80 s12

Notice of tender

     11. (1) A defendant or other person who has cause to dispute a sum of money claimed may serve notice of tender in the prescribed form on the other party and pay that amount into court until the determination of the matter.

             (2)  On the determination of the matter, a judge may award costs to either party.

62/80 s13

Transfer to more convenient district

     12. A defendant served with an originating summons in the prescribed form may apply to the court for a transfer to a more convenient district within 10 days of being served, and the court may authorize the transfer with notice to the parties.

62/80 s14; 125/93 s7

Amendments

     13. A party may apply to a judge in the prescribed form to amend documents and a judge may make an order on the merits of the case.

62/80 s15; 125/93 s8

Set‑offs

     14. A set‑off may be applied in satisfaction of a claim established by a plaintiff, to the extent of the amount set out in the Act in the jurisdiction of the court.

62/80 s16

Dismissing claims

     15. Where a plaintiff fails to appear and prosecute his or her claim on the date set for trial, a judge may dismiss the claim or adjourn the trial.

62/80 s17

Proving claims

     16. A judge may allow in whole or in part or dismiss a plaintiff's claim and a counterclaim made by a defendant, but judgment shall not be given on a counterclaim until the defendant has established to the satisfaction of the judge the counterclaim by oral or affidavit evidence.

62/80 s17

Discontinuance

     17. Prior to judgment, a party may discontinue a claim, counterclaim or set‑off by filing a notice of discontinuance in the prescribed form with the court and serving a copy on the parties to the claim.

62/80 s18

Judgment

     18. Upon judgment being given on trial, the successful party shall prepare and file a judgment in the prescribed form with the court and serve a copy on the parties to the claim.

62/80 s19

Third parties

     19. (1) Where a defendant in an action has good and sufficient cause to seek contribution or indemnity from a third party, he or she may apply to the court to have that third party joined as a party using the prescribed form.

             (2)  Where it is established to the satisfaction of the judge that a third party should be joined as a party, the court shall serve copies of all documents pertinent to the action on that party.

62/80 s20; 125/93 s9

Enforcement of judgment

     20. Notwithstanding section 22, where judgment is entered, whether by default or upon trial, and the judgment has not been satisfied, the party in whose favour judgment was given may file an application and affidavit in the prescribed form with the court setting out the method of enforcement sought.

62/80 s21

Attachment of wages

     21. (1) Where it is established to the satisfaction of the court that a party against whom judgment has been given has money or wages due, the court may issue an attachment of wages and money in the prescribed form to the person holding the same.

             (2)  Where the form required under subsection (1) is issued and served, the attachment continues in force until the money and wages are exhausted, or the total amount of the judgment and costs satisfied.

             (3)  The person on whom the form required under subsection (1) is served shall complete the certificate shown on the reverse of the form and return the form to the court.

             (4)  Where a person fails to comply with the provision of subsection (4), he or she shall, unless otherwise ordered by a judge, be liable to the judgment creditor to the same extent as the judgment debtor.

62/80 s22

Distress warrants

     22. (1) The court may issue a distress warrant to be effected by the sheriff in the prescribed form.

             (2)  Where a distress warrant is issued, the provision of the Rules of the Supreme Court of Newfoundland relating to notice, seizure, sale and return shall apply and the sheriff may apply to the court for directions.

62/80 s23; 125/93 s10

Interpleader

     23. The Rules of the Supreme Court in respect of interpleader relief shall apply with the necessary changes to these rules.

62/80 s24

Judgment summons

     24. (1) Subject to section 9 of the Act, and section 20, the court may issue a judgment summons in the prescribed form where a judgment has not been satisfied.

             (2)  A party who wishes to subpoena someone other than the judgment debtor to an examination for the determination of the means of the debtor to satisfy the judgment shall apply to the court using the prescribed form and a judge may authorize the issuing of a subpoena under section 10 if a judge is of the opinion that that person is a necessary witness.

             (3)  Where a judgment debtor fails to appear following service of a judgment summons and service is proven, a judge may issue a warrant of arrest in the prescribed form.

             (4)  Where following examination a judgment debtor refuses to comply with an order of a judge, he or she may be committed to jail in the prescribed form for a period not exceeding 6 weeks.

             (5)  Where a judgment debtor has been committed to jail for failure to comply with an order of the court, he or she shall not be released until an order for release has been issued in the prescribed form by the court, unless the period for which he or she was committed has expired.

62/80 s25; 125/93 s11

Signing documents

     25. Unless otherwise specified, documents required to be signed by the court may be signed by the clerk, who is by virtue of the position a justice of the peace.

62/80 s26

Person under 19

     26. (1) Where a plaintiff or defendant is a person under 19 years of age, a consent of next friend in the prescribed form shall be completed and filed with the court before a matter can proceed.

             (2)  Where a consent is not filed to allow a person under 19 years of age to defend an action, the plaintiff may apply to a judge using the prescribed form requesting that the judge appoint the parent, guardian or some other person to act as next friend for the defendant.

125/93 s12

Settlement conference

     27. (1) Before a trial date is set a settlement conference shall be held at the time and place set by the court, unless the court orders otherwise.

             (2)  The court shall serve a notice of settlement conference in the prescribed form on the parties at least 10 days before the date set for the settlement conference.

             (3)  All parties who are individuals shall attend a settlement conference, either with or without their representatives.

             (4)  All parties who are not individuals shall be represented at the settlement conference by someone who has authority to settle the claim.

             (5)  A party to a claim shall bring to the settlement conference all documents and reports that the party shall rely on at trial and shall comply with section 31 before commencement of the settlement conference.

             (6)  Where, despite the best efforts of a party, a document or report cannot be brought to a settlement conference, the party may apply to the court for an order postponing the conference, as long as the application is filed at least 7 days before the date set for the conference.

             (7)  Where a settlement conference cannot be conducted properly because a party is not prepared for it, a judge may order that party to pay the reasonable expenses of the other parties.

             (8)  Where a settlement conference is postponed under subsection (6), the court shall notify the parties of the place and time of the rescheduled conference.

             (9)  At a settlement conference, where the mediator is a judge, the judge may

             (a)  mediate issues being disputed;

             (b)  decide on issues that do not require evidence;

             (c)  make a payment order or other appropriate order in terms agreed to by the parties;

             (d)  set a trial date if a trial is necessary;

             (e)  discuss evidence that shall be required and the procedure that shall be followed if a trial is necessary;

              (f)  order a party to produce anything as evidence at the trial;

             (g)  order a party to allow another party to inspect and copy specific documents or records;

             (h)  if damage to property is involved in the dispute, order a party to permit a person chosen by another party to examine the property damage; and

              (i)  make another order for the just, speedy and inexpensive resolution of the claim.

           (10)  Where the mediator is not a judge, that person who has been designated by the chief judge to act as mediator

             (a)  may

                      (i)  mediate issues being disputed,

                     (ii)  decide on issues that do not require evidence,

                    (iii)  set a trial date if a trial date is necessary,

                    (iv)  discuss evidence that shall be required and the procedure that shall be followed if a trial is necessary,

                     (v)  order a party to produce anything as evidence at the trial,

                    (vi)  order a party to allow another party to inspect and copy specific documents or records and if an issue as to the admissibility of the document or claim of privilege is raised, order a date for the judicial determination of this issue, and

                   (vii)  if damage to property is involved in the dispute, order a party to permit a person chosen by another party to examine the property damage; and

             (b)  shall file a report with the court in which the mediator may submit a question or issue arising from the settlement conference for the decision of a judge, or make a statement of the facts from which a judge may draw that inference as he or she thinks just.

           (11)  On receipt of the mediator's report, a judge may

             (a)  adopt the report in whole or in part;

             (b)  vary or reverse the report or a finding of that report;

             (c)  require a supplemental report of the mediator;

             (d)  remit the mediator's report or any part of the report for further consideration to the same or another mediator;

             (e)  decide a question or issue raised by the settlement conference or the evidence taken by the mediator, with or without additional evidence;

              (f)  order the entry of the judgment based on the report or otherwise as he or she thinks just; or

             (g)  make an order that the judge considers just.

           (12)  A party in a claim for damages for personal injuries may apply to the court for a settlement conference to discuss the issue of liability.

           (13)  A judge may make a payment order or other appropriate order against a party who does not attend a settlement conference.

           (14)  Where a trial date is set at a settlement conference and a party is absent, the court shall service a notice of the trial date on that party unless the judge orders otherwise.

           (15)  Where during mediation matters are agreed upon between the parties, the parties shall sign a statement indicating the agreements reached.

125/93 s12

Summary judgment

     28. A party to an action may apply in the prescribed form to the court for an order for summary judgment, where a defence is filed that does not raise a triable issue and a judge may, on the terms that it considers just

             (a)  give the directions that may be required for the examination of a party or witness;

             (b)  give directions for the production of a book or document;

             (c)  grant an order in favour of the plaintiff on the claim or any part of the claim;

             (d)  impose terms upon the plaintiff, including a stay of execution until the determination of the defendant's counterclaim or third party proceeding;

             (e)  give directions as to the trial or hearing of the claim;

              (f)  award costs; and

             (g)  grant another order as it considers just.

125/93 s12

Directions

     29. A party to an action may apply in the prescribed form to a judge for an order for directions on how to proceed, and the judge may give directions which he or she considers appropriate.

Form of orders

     30. Orders made under section 13, 19, 26, 28, 29, 31 or 32 shall be in the prescribed form.

List of documents

     31. (1) Unless the court otherwise orders, a party to a proceeding shall, 3 days or more before the proceeding, file at the court and serve on the other party a list of the documents and a copy of each document referred to on the list of which the party has knowledge at that time and which relates to a matter in question in the action.

             (2)  A list of documents shall briefly identify the nature of the document being filed and served.

             (3)  The list of documents and copies may be attached to a statement of claim, application or defence filed in the action.

             (4)  A claim that a document is privileged from production or is inadmissible shall be stated on the list filed at the court and served on the opposing party with a copy of the particular document being filed or served and a judge shall decide this issue at the proceeding.

             (5)  The court may order a party to file and serve on an opposing party a list of documents and copies of the documents as set out in subsection (1) or make another order in relation to the disclosure of documents it considers just.

             (6)  A judge shall consider the admissibility of a document filed with the list of documents or as ordered to be disclosed by a judge at the appropriate proceeding.

             (7)  A party shall file a supplementary list with copies of documents where that party

             (a)  discovers that the original list was inaccurate or incomplete; and

             (b)  obtains a document relating to the matters after the time the original list and the copies were delivered.

             (8)  Where a party who is required by subsection (1) or by an order made under subsection (5) fails without reasonable cause or excuse to comply with a provision of this rule or the order, or fails to make reasonable efforts to give full disclosure, then a judge may make the order he or she considers just, including an order that the proceeding be dismissed, or an order that the defence be struck and judgment entered.

             (9)  An order made under this rule may be revoked or varied by a subsequent order on the terms that a judge considers just.

125/93 s12

Costs and fees

     32. (1) A party may apply to the court in the prescribed form for an order to recover fees and costs paid by that party.

             (2)  Costs may be awarded in the discretion of the court but shall not exceed the greater of 10% of the amount of the claim or the cost of issuing documents and cost of service as set out in the Schedule, unless the court in exceptional circumstances orders otherwise.

             (3)  Costs and fees recoverable are limited to the amounts set out in the Schedule unless otherwise ordered by the judge.

125/93 s12

Repeal

      33. The Small Claims Rules, 1980, Newfoundland Regulation 62/80, are repealed.


Schedule

Court fees

        1. The fees payable to the clerk are

             (a)  for each search, $ 3;

             (b)  for each file requested for viewing, $2;

             (c)  for each certification after the initial filing and certification of one copy, $3;

             (d)  for photocopies, $1;

             (e)  for transcript of evidence, each expedited transcript and each additional copy of a transcript of evidence to the same party, an administrative fee of $50 and for each page $1.

Fees between parties

        2. The fees and costs payable as between parties are

             (a)  for the issuing of a statement of claim, $20;

             (b)  for each search, $3;

             (c)  for each file requested for viewing, $2;

             (d)  for service of a statement of claim by a private process server or by registered mail, the actual cost to a maximum of $25;

             (e)  fee for conducting a search of a registry maintained by the government, the actual cost to the maximum of $10;

              (f)  the fees payable to a witness

                      (i)  for attendance, per day, $4,

                     (ii)  for a witness declared by the court to be an expert witness, a maximum per day, $50,

                    (iii)  subject to paragraph (i), an allowance for travel by motor vehicle, per kilometre for each kilometre necessarily travelled from the residence to the court and return, $0.25;

             (g)  notwithstanding subparagraph (f)(ii) if, in the judge's discretion, public transportation can be used on a timely basis, a witness may not be allowed the amount prescribed in subparagraph (f)(iii) but may be entitled to the fare for travelling to and from the place of trial by public transportation;

             (h)  on a proceeding, payment of fees and costs in addition to those specified in paragraphs (a) to (g) may be awarded, in the judge's discretion, to a maximum of $300;

              (i)  notwithstanding paragraphs (a) to (h), for a creditor of a default judgment, the amounts of the fees and costs recoverable are those set out in paragraphs (a), (d) and (e) or the actual cost, whichever is less.

125/93 s13