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Copyright 2000: Queens Printer,
St. John's, Newfoundland and Labrador, Canada

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Revised Statutes of Newfoundland 1990


CHAPTER P-29

AN ACT RESPECTING THE PROVINCIAL COURT IN THE PROVINCE

Analysis

1. Short title

2. Definitions

3. Provincial Court

4. Jurisdiction

5. Sittings of court

6. Appointment of Provincial Court judges

7. Oaths or affirmations

8. Appointment of chief Provincial Court judge

9. Qualifications

10. Powers, functions and duties

11. Vacancy in office

12. Resignation of Provincial Court judge

13. Reappointment after resignation

14. Provincial Court districts

15. Transfers

16. Other employment

17. Tenure

18. Suspension

19. Removal of chief Provincial Court judge

20. Judicial council

21. Functions of judicial council

22. Retirement and pension rights

23. Supernumerary judges

24. Clerk

25. Regulations

26. Notice demanding returns

27. Payment

28. Contempt

29. Continuance of proceedings

30. Application of the Summary Proceedings Act


Short title

1. This Act may be cited as the Provincial Court Act.

1974 No77 s1

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Definitions

2. In this Act

(a) "chief Provincial Court judge" means the chief Provincial Court judge appointed under section 8;

(b) "clerk" means a clerk of the court appointed under section 24;

(c) "court" means the Provincial Court of Newfoundland referred to in section 3;

(d) "judicial council" means the Judicial Council of the Provincial Court of Newfoundland continued by section 20;

(e) "minister" means the Minister of Justice and Attorney General; and

(f) "Provincial Court district" means a Provincial Court district referred to in section 14.

1974 No77 s2; 1979 c38 ss1-4

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Provincial Court

3. (1) There shall be, for the province, a court of record, to be styled "The Provincial Court of Newfoundland".

(2) The court shall be composed of the Provincial Court judges that may be appointed under section 6.

(3) The court may be held before 1 of the Provincial Court judges.

1974 No77 s4; 1979 c38 s1

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Jurisdiction

4. (1) The court and every Provincial Court judge of the court has jurisdiction throughout the province and a Provincial Court judge

(a) shall exercise all the powers and perform all the duties conferred or imposed upon a Provincial Court judge by an Act of the Legislature or of the Parliament of Canada;

(b) subject to the Young Persons Offences Act, has all the power and authority now vested under an Act of the Legislature in a Provincial Court judge, 2 justices of the peace sitting together or a youth court or a judge of a youth court;

(c) may exercise all the powers and perform all the duties conferred or imposed upon a Provincial Court judge or 1 or more justices of the peace under an Act of the Parliament of Canada; and

(d) is by virtue of the office a justice of the peace.

(2) A Provincial Court judge shall be considered to have been specially authorized by the terms of his or her appointment to exercise the jurisdiction conferred upon a Provincial Court judge under Part XIX of the Criminal Code but this subsection does not apply to any number of justices of the peace.

1974 No77 s5; 1979 c38 s1; 1984 c2 s31

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Sittings of court

5. The court may hold sittings at those places throughout the province that may be convenient for the orderly dispatch of the business of the court, or at a place designated by the minister.

1974 No77 s6

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Appointment of Provincial Court judges

6. (1) The Lieutenant-Governor in Council, upon the recommendation of the minister in consultation with the judicial council, may appoint, by Commission under the Great Seal, those persons that the Lieutenant-Governor in Council considers appropriate and necessary, to be judges of the Provincial Court of Newfoundland.

(2) A person appointed as a Provincial Court judge shall be a member in good standing of the Law Society of Newfoundland.

(3) A Provincial Court judge shall be paid, out of the Consolidated Revenue Fund of the province, a salary fixed by the Lieutenant-Governor in Council by regulations made under section 25.

(4) The terms of the appointment of Provincial Court judges shall be judicially noted.

(5) Where a new Provincial Court district is made under section 14 or where a Provincial Court judge dies, resigns or is removed from office leaving a Provincial Court district without an appointed Provincial Court judge, the Lieutenant-Governor in Council may appoint a new Provincial Court judge to that Provincial Court district.

1974 No77 s7; 1979 c38 s1; 1988 c57 s1

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Oaths or affirmations

7. (1) A Provincial Court judge, other than a Provincial Court judge referred to in section 13, shall, before acting in the execution of the office, take and sign

(a) the Oath of Allegiance or affirmation; and

(b) the Judicial Oath or affirmation

referred to in the Oaths of Office Act.

(2) The oaths or affirmations referred to in subsection (1) shall be administered by a Provincial Court judge and that Provincial Court judge shall transmit the signed oaths or affirmations to the Department of Justice.

1974 No77 s8; 1979 c38 s1

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Appointment of chief Provincial Court judge

8. (1) The Lieutenant-Governor in Council may appoint a Provincial Court judge to be chief Provincial Court judge of the court.

(2) The minister may designate a Provincial Court judge to act in the place of the chief Provincial Court judge during the illness or absence of the chief Provincial Court judge and while so acting the Provincial Court judge shall have all the powers and may carry out all the functions and duties of the chief Provincial Court judge.

(3) The Provincial Court judge referred to in subsection (2) may, while exercising the powers and carrying out the functions and duties of chief Provincial Court judge, be paid the remuneration additional to the salary referred to in section 6 that the Lieutenant-Governor in Council may prescribe.

1974 No77 s9; 1979 c38 ss1&3

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Qualifications

9. (1) A Provincial Court judge is not qualified to be appointed chief Provincial Court judge unless he or she

(a) has been a member in good standing of the Bar of Newfoundland for at least 10 years immediately preceding the date of the appointment as a Provincial Court judge;

(b) was a member in good standing of the Bar of Newfoundland immediately preceding the appointment as a Provincial Court judge and the total years of service as a Provincial Court judge and his or her years in good standing as a member of the Bar of Newfoundland before the appointment as Provincial Court judge is at least 10 years; or

(c) although not a member of the Bar of Newfoundland previous to the appointment as a Provincial Court judge, has been serving as a Provincial Court judge for at least 12 years and has received, since the appointment as a Provincial Court judge, a degree in law, which is not an honourary degree or one secured by correspondence, granted to that person by a university or school of law of a province of Canada, Great Britain or Northern Ireland.

(2) The qualifications of chief Provincial Court judge referred to in subsection (1) do not apply to a Provincial Court judge designated under subsection 8(2).

1974 No77 s10; 1979 c38 s1

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Powers, functions and duties

10. The powers, functions and duties of the chief Provincial Court judge extend to and include

(a) the general supervision and direction of the administration of the court;

(b) the general supervision and direction over arranging the sittings of the court and assigning Provincial Court judges for hearings in the court, as circumstances require, regard being given to the greater volume of judicial work in certain of the Provincial Court districts;

(c) the hearing, considering and deciding upon requests for exchange of duties among Provincial Court judges and the assignment of duties to or transfer of Provincial Court judges from one Provincial Court district to another where in the opinion of the chief Provincial Court judge the assignment or transfer is reasonable and desirable;

(d) the issuing of reprimands to Provincial Court judges and the performance of other related duties under section 18;

(e) the making of recommendations to the Lieutenant-Government in Council respecting the suspension of Provincial Court judges;

(f) sitting as a member of the judicial council;

(g) the making of recommendations to the minister respecting matters affecting the general administration of the court; and

(h) performing those additional duties that may be prescribed by the regulations.

1974 No77 s11; 1979 c38 ss1-3; 1988 c57 s2

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Vacancy in office

11. In case of a vacancy in the office of chief Provincial Court judge, the minister may designate a person who would qualify for appointment as chief Provincial Court judge under subsection 9(1) to exercise the powers and perform the functions and duties of chief Provincial Court judge, and the person so designated shall have the powers and may carry out the functions and duties of chief Provincial Court judge.

1974 No77 s12; 1979 c38 s3

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Resignation of Provincial Court judge

12. (1) A Provincial Court judge may resign the office by written resignation signed by the judge and delivered to the minister, but, except as provided for in section 19, a Provincial Court judge may not be removed from office before his or her retirement.

(2) The chief Provincial Court judge may resign the office as chief Provincial Court judge by written resignation signed by him or her and delivered to the minister.

1974 No77 s13; 1979 c38 ss1&3

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Reappointment after resignation

13. (1) A Provincial Court judge who resigns the office may not be reappointed as a Provincial Court judge until after the expiration of 6 years from the date that his or her resignation takes effect.

(2) Notwithstanding subsection (1), a Provincial Court judge who resigned the office to attend a recognized school of law and who has received a degree in law from that school of law may be reappointed a Provincial Court judge.

1974 No77 s14; 1979 c38 s1

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Provincial Court districts

14. (1) The Lieutenant-Governor in Council may, by regulation, divide the province into Provincial Court districts for the purpose of the appointment or transfer of a Provincial Court judge, but nothing in this section affects a Provincial Court's jurisdiction throughout the entire province.

(2) A Provincial Court judge shall maintain his or her principal residence within an area of 50 kilometres by road from the city or municipality in which the court of the Provincial Court district to which the Provincial Court judge has been appointed is located.

1974 No77 s16; 1979 c38 ss1&2; 1988 c57 s3

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Transfers

15. The chief Provincial Court judge may transfer a Provincial Court judge from one Provincial Court district to another and a Provincial Court judge so transferred shall take up his or her duties in the Provincial Court district to which he or she has been transferred on the date prescribed by the chief Provincial Court judge.

1988 c57 s4

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Other employment

16. (1) Unless authorized by the Lieutenant-Governor in Council, a Provincial Court judge shall not practise or actively engage in a business, trade or occupation but shall devote his or her full time to the performance of the duties of a Provincial Court judge.

(2) The minister, after consultation with the chief Provincial Court judge, may give written consent to a Provincial Court judge to act as a commissioner within the meaning of the Public Inquiries Act.

(3) A breach of this section is considered to be misbehaviour under sections 17, 18 and 19.

1974 No77 s18; 1979 c38 s1; 1988 c57 s5

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Tenure

17. A Provincial Court judge holds office during good behaviour and may not be removed from office except for

(a) misbehaviour;

(b) neglect of duty; or

(c) failure to perform his or her duties because of incapacity or inability.

1988 c57 s6

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Suspension

18. (1) Where the chief Provincial Court judge has reason to believe that a Provincial Court judge holding office during good behaviour

(a) is guilty of misbehaviour;

(b) is guilty of neglect of duty; or

(c) has failed to perform his or her duties because of incapacity or inability,

the chief Provincial Court judge may

(d) reprimand the Provincial Court judge either orally or in writing; or

(e) immediately recommend the suspension of the Provincial Court judge from the performance of the duties of the office to the Lieutenant-Governor in Council.

(2) Where the Lieutenant-Governor in Council receives a recommendation under paragraph (1)(e), the Lieutenant-Governor in Council may suspend the Provincial Court judge from performance of the duties of office.

(3) Where the Lieutenant-Governor in Council suspends a Provincial Court judge under subsection (2), the Clerk of the Executive Council shall immediately give notice to the Provincial Court judge by registered mail of the suspension, giving in the notice a statement of the reason for the suspension.

(4) A Provincial Court judge who has been suspended under subsection (2) may within 30 days of the suspension forward to the Lieutenant-Governor in Council a request for an inquiry, and the Lieutenant-Governor in Council upon receiving the request shall, by order, direct the judicial court to inquire into and report on the matter and shall direct that the inquiry be public or private, in accordance with the request of the Provincial Court judge.

(5) Where a Provincial Court judge who has been suspended under subsection (2) does not request an inquiry under subsection (4), the Lieutenant-Governor in Council shall

(a) order that the inquiry be held and direct whether it shall be held in public or private;

(b) revoke the suspension; or

(c) remove the Provincial Court judge from office.

(6) The judicial council, in the performance of its duties under this section and section 21, and each member has, for the purposes of the inquiry, all the powers, privileges and immunities that may be conferred upon a commissioner under the Public Inquiries Act, including the power to take evidence under oath or affirmation, and the judicial council is considered to be an "investigating body" for the purposes of the Public Investigations Evidence Act.

(7) The Provincial Court judge whose behaviour is the subject of the inquiry shall be given notice of the time and place appointed for the inquiry and he or she may attend with counsel, produce evidence and cross-examine witnesses.

(8) Where the report of the inquiry confirms that the Provincial Court judge

(a) is guilty of misbehaviour;

(b) is guilty of neglect of duty; or

(c) has failed to perform his or her duties because of incapacity or inability,

the Lieutenant-Governor in Council shall remove the judge from office and a copy of the Order in Council and all reports, evidence and correspondence shall be laid before the House of Assembly by the minister within 15 days after the day of the removal, if the Legislature is then in session, and, if it is not, then within 15 days after the beginning of the next session.

(9) Where the report of the inquiry does not confirm that the Provincial Court judge

(a) is guilty of misbehaviour;

(b) is guilty of neglect of duty; or

(c) has failed to perform his or her duties because of incapacity or inability,

the Lieutenant-Governor in Council shall revoke the suspension and the Provincial Court judge shall stand in all respects as if no suspension had been made.

(10) The judicial council shall give a copy of the report of the inquiry to the Provincial Court judge whose behaviour is the subject of the inquiry.

1974 No77 s20; 1979 c38 ss1&3; 1988 c57 s7

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Removal of chief Provincial Court judge

19. (1) Where the judicial council has reason to believe that, because of the chief Provincial Court judge's

(a) misbehaviour;

(b) neglect of duty; or

(c) failure to perform his or her duties because of incapacity or inability,

in respect of the office as chief Provincial Court judge, he or she should be removed from office as chief Provincial Court judge, the judicial council may recommend to the Lieutenant-Governor in Council that the chief Provincial Court judge be removed from the office and

(d) upon the recommendation being made, the Lieutenant-Governor in Council may, by order, remove the chief Provincial Court judge from the office as chief Provincial Court judge.

(2) The removal of the chief Provincial Court judge under subsection (1) shall not affect the Provincial Court judge concerned in his or her office as a Provincial Court judge as contradistinguished from the office of chief Provincial Court judge, and sections 17 and 18 remain in effect in respect of his or her office as a Provincial Court judge.

1974 No77 s21; 1979 c38 ss1&3; 1988 c57 s8

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Judicial council

20. (1) The Judicial Council of the Provincial Court of Newfoundland is continued and consists of 6 members who shall be

(a) 1 judge of the Supreme Court;

(b) 1 bencher of the Law Society of Newfoundland;

(c) 2 other persons nominated by the minister; and

(d) 1 Provincial Court judge other than the chief Provincial Court judge,

to be appointed by the Lieutenant-Governor in Council, and

(e) by virtue of his or her office, the chief Provincial Court judge.

(2) The chief Provincial Court judge shall not function as a member of the judicial council during an inquiry by the judicial council into the conduct of a Provincial Court judge who has been suspended on the recommendation of the chief Provincial Court judge or, during the period the chief Provincial Court judge is the subject of a complaint to the judicial council in the exercise of its functions under section 21 or of an inquiry by the judicial council under section 18 and until the resolution of the complaint or inquiry.

(3) The Lieutenant-Governor in Council, in appointing a member of the judicial council, shall specify in the appointment the period which is covered by the appointment.

(4) The Lieutenant-Governor in Council shall designate 1 of the members of the judicial council to be the chairperson and another member to be the vice-chairperson who shall act in the case of the illness or absence of the chairperson but the chief Provincial Court judge shall not be the chairperson or vice-chairperson.

(5) The members of the judicial council may be paid the allowance or remuneration and expenses that the Lieutenant-Governor in Council may prescribe unless prohibited by another Act of the province or the Parliament of Canada.

(6) The appointed members of the judicial council shall serve during pleasure.

(7) A majority of the members of the judicial council, of whom 1 shall be the chairperson or the vice-chairperson, constitutes a quorum and is sufficient for the exercise of all of the jurisdiction and powers of the judicial council.

(8) Appointed members of the judicial council are eligible for reappointment.

1974 No77 s22; 1979 c38 ss1&3; 1986 c42 Sch B; 1988 c57 s9

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Functions of judicial council

21. The functions of the judicial council are

(a) at the request of the minister, to consider proposed appointments of Provincial Court judges and make a report and recommendation to the minister;

(b) to receive complaints of the

(i) misbehaviour,

(ii) neglect of duty, or

(iii) failure to perform duties because of incapacity or inability

of Provincial Court judges;

(c) to receive and hear appeals of the decision of the chief Provincial Court judge under section 15 and

(i) to review as it considers necessary, the substance of the appeal,

(ii) to confirm or make a new order regarding the decision, and

(iii) to report on the appeal to the minister;

(d) to take the action to investigate complaints referred to in paragraph (b) that it considers necessary including the review of complaints with the Provincial Court judge concerned where appropriate, and, where appropriate, to comply with the procedure prescribed by this Act for the removal of a Provincial Court judge, and to make a report, and where considered necessary, a recommendation for the removal of the Provincial Court judge, to the Lieutenant-Governor in Council;

(e) to review every 2 years the areas of the Provincial Court districts existing in the province, and to review the necessity of either the creation of a new Provincial Court district or the amalgamation of 1 or more Provincial Court districts into 1 Provincial Court district and report to the minister; and

(f) to consider proposals for improving the judicial services of the court and to report to the minister.

1974 No77 s23; 1979 c38 ss1&2; 1988 c57 s10

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Retirement and pension rights

22. A Provincial Court judge is considered to be an employee for the purposes of those provisions of the Public Service Pensions Act that are not inconsistent with this Act, including those provisions concerning the retirement age and the advanced or deferred pension privileges of an employee.

1974 No77 s24; 1978 c4 s1; 1979 c38 s1

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Supernumerary judges

23. (1) Where a person whose appointment as a Provincial Court judge has ended because of

(a) his or her reaching compulsory retirement age under the Public Service Pensions Act; or

(b) his or her having retired at the age of 55 years or older with full pension rights under the Public Service Pensions Act,

that person may, on the recommendation of the judicial council and the minister, be appointed by the Lieutenant-Governor in Council as a supernumerary Provincial Court judge on terms and conditions agreed on by the Provincial Court judge, the judicial council, the chief Provincial Court judge and approved by the minister.

(2) A supernumerary Provincial Court judge appointed under subsection (1) shall retire on reaching the age of 75 years.

(3) A supernumerary Provincial Court judge may be assigned to a particular case or other matter or class of cases at the discretion of the chief Provincial Court judge.

(4) A Provincial Court judge appointed under this section is entitled to receive the remuneration or allowance that the Lieutenant-Governor in Council may determine.

(5) A remuneration or allowance paid to a Provincial Court judge under this section is not a salary within the meaning or for the purpose of the Public Service Pensions Act.

1978 c4 s2; 1979 c38 s1; 1982 c27 s1; 1988 c57 s11

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Clerk

24. (1) There may be appointed, for each Provincial Court judge, a clerk of the court who shall act under the direction and supervision of that Provincial Court judge.

(2) A person appointed as a clerk shall, before entering upon his or her duties,

(a) where the Lieutenant-Governor in Council by regulation prescribes the giving of security, give security for the performance of the duties in the sum and in the manner that the Lieutenant-Governor in Council may by regulation prescribe; and

(b) take and sign before a Provincial Court judge the following oath or affirmation:

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

(3) The clerks referred to in subsection (1) and other officers, clerks and employees that are necessary for the proper conduct of the business of the court shall be appointed or employed in the manner authorized by law and all persons appointed or employed under this section shall be considered to be members of the staff of the Department of Justice.

(4) A person employed as a shorthand reporter in the court shall, before entering upon those duties, take and sign before a Provincial Court judge the following oath or affirmation:

"I, A.B., swear (or affirm) that I will faithfully take down and transcribe the evidence and proceedings at all trials and other judicial proceedings in which I am assigned to act as shorthand reporter, and that I will faithfully perform other duties assigned to me." (Where an oath is taken, add "So help me God".).

(5) A person appointed as a clerk is also a justice of the peace.

(6) The clerks, officers and other employees and staff appointed under this section shall be officers of the court.

1974 No77 s25; 1979 c38 ss1&5; 1988 c57 s12

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Regulations

25. (1) The Lieutenant-Governor in Council may make regulations

(a) fixing the remuneration of the chief Provincial Court judge and the other Provincial Court judges;

(b) providing for leave of absence, including vacation and sick leave of Provincial Court judges;

(c) prescribing records to be kept and reports and returns to be made by the clerks;

(d) providing for the safekeeping, inspection and destruction of books, documents and papers of the court;

(e) for the purpose of section 14;

(f) for the purpose of paragraph 24(2)(a);

(g) subject to the approval of the judicial council, prescribing additional duties of the chief Provincial Court judge;

(h) providing for the payment of expenses of Provincial Court judges;

(i) providing for a system of statistical records relating to the court;

(j) providing for and prescribing the seal and duplicate seals to be used by the court; and

(k) generally, to give effect to the purpose of this Act.

(2) Notwithstanding paragraph (1)(a), different remuneration may be prescribed for Provincial Court judges with different qualifications and the regulations may not reduce the remuneration which a Provincial Court judge previously received without the assent of the House of Assembly.

1974 No77 s26; 1979 c38 ss1&3; 1987 c41 s15;
1988 c57 s13

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Notice demanding returns

26. (1) A clerk whose duty it is to forward reports or make returns as required by the regulations or under an Act and who refuses or neglects to forward the reports or make the returns in the manner and at the time provided in the regulations or under an Act may be required immediately to do so by a written notice from the minister.

(2) The notice referred to in subsection (1) may be forwarded to the usual or last known postal address of the clerk by registered mail, or delivered to the clerk in person.

1974 No77 s27; 1979 c38 s1; 1988 c57 s14

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Payment

27. (1) A payment required to be made by the Crown in carrying out this Act or the regulations shall be paid by the Minister of Finance, on the request of the minister, out of the Consolidated Revenue Fund.

(2) Money paid into the Provincial Court under a statute of the province or of Canada to which, following inquiry by the clerk,

(a) there is no person legally entitled; or

(b) the person legally entitled is either not known or that person's whereabouts are unknown,

and which has been paid into Provincial Court for no less than 3 years may be paid by the clerk into the Consolidated Revenue Fund.

(3) A person who may be entitled to money paid into the Consolidated Revenue Fund under subsection (2) may apply to the Trial Division for an order

(a) that the person is legally entitled to that money; and

(b) directing the Provincial Court to pay over to that person the money and interest that are set out in the order.

(4) Upon receipt of a copy of an order issued under subsection (3), the Minister of Finance shall pay the money and interest set out in the order from the Consolidated Revenue Fund to the credit of the Provincial Court.

1974 No77 s28; 1988 c57 s15

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Contempt

28. (1) A Provincial Court judge may in addition to his or her other powers sentence a person who is guilty of contempt to pay a fine not exceeding $50 or to imprisonment for a term not exceeding 1 month or to both a fine and imprisonment.

(2) A Provincial Court judge imposing punishment under subsection (1) shall make a record of the punishment.

1974 No77 s29; 1979 c34 Sch; 1979 c38 s1

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Continuance of proceedings

29. (1) Subject to the Criminal Code, where a Provincial Court judge dies, resigns, is removed from office, or is absent from office because of illness or for other cause, the minister may designate another Provincial Court judge to take up all actions, causes, matters, processes, hearings and proceedings that were pending before the Provincial Court judge at the time of death, resignation, removal or absence.

(2) A Provincial Court judge designated under subsection (1) shall

(a) take up, rehear and decide the action, cause, matter, process, hearing or proceeding; or

(b) with the consent of all parties, complete the hearing of the action, cause, matter, process, hearing or proceeding and decide it.

1974 No77 s30; 1979 c38 s1

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Application of the Summary Proceedings Act

30. The Summary Proceedings Act shall, where consistent with this Act, apply to matters coming within the ambit of this Act.

1974 No77 s31; 1979 c35 s34

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