Rules of the Supreme Court, 1986

Joinder of causes of action

7.01. Subject to rule 7.03, a party, whether suing in the same or different capacities, may join several causes of action in the same proceeding.

1986 c42 Sch D rule 7.01

Joinder of parties

7.02. (1) Subject to rule 7.03, two or more persons may be joined together in one proceeding as plaintiffs or defendants where,

(a) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; and

(b) all rights to relief claimed in the proceeding, whether they are joint, several or alternative, are in respect of or arise out of the same transaction or series of transactions; or

(2) Subject to the provisions of any statute and unless the Court otherwise orders, a plaintiff, who claims any relief that any other person is entitled to jointly with the plaintiff, shall join all persons so entitled as parties to the proceeding, and any of them who do not consent to be joined as a plaintiff shall be made a defendant.

(3) Where relief is claimed against a defendant who is jointly liable with some other person and also severally liable, the other person need not be made a defendant to the proceeding; but where persons are jointly, but not severally, liable under a contract and relief is claimed against some but not all of those persons in a proceeding in respect of the contract, the Court may stay the proceeding until the other persons so liable are added as defendants.

(4) It is not necessary that every co-defendant be interested in every cause of action or in all the relief sought in a proceeding against the co-defendant, but the Court may order the co-defendant be compensated for being required to attend, or be relieved from attending, any part of the trial or hearing in which the co-defendant has no interest.

1986 c42 Sch D rule 7.02

Court may order separate trials, etc.

7.03. (1) Where a joinder of causes of actions or parties in a proceeding may embarrass or delay the trial or hearing of the proceeding or is otherwise inconvenient, the Court may order separate trials or hearings, or make such other order as is just.

(2) Where a counterclaim or a third party proceeding ought to be disposed of by a separate proceeding, the Court may order the counterclaim or third party proceeding to be struck out or tried separately, or it may make such other order as is just.

1986 c42 Sch D rule 7.03

Misjoinder and nonjoinder of parties

7.04. (1) No proceeding shall be defeated by reason of the misjoinder or nonjoinder of any party or person, and the Court may determine any question or issue in dispute in a proceeding so far as it affects the rights and interests of any party, saving the rights of any person who is not a party.

(2) At any stage of a proceeding the Court may, on such terms as it thinks just and either of its own motion or on application of any party to the proceeding,

(a) order any party who is not a proper or necessary party, to cease to be a party; or

(b) order any person, who ought to have been joined as a party or whose participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon, be added as a party,

but no person shall be added as a plaintiff without the plaintiff's consent signified in writing or in such other manner as the Court may order.

1986 c42 Sch D rule 7.04

Intervenor becoming a party

7.05. (1) Any person may, with leave of the court, intervene in a proceeding and become a party thereto if

(a) that person claims an interest in the subject matter of the proceeding, including any property seized or attached in the proceeding, whether as an incident to the relief claimed, enforcement of the order therein, or otherwise;

(b) that person's claim or defence and the proceeding have a question of law or fact in common; or

(2) The application for leave to intervene shall be supported by an affidavit containing the grounds thereof and shall have attached thereto, when practical, a pleading setting forth the claim or defence for which intervention is sought.

(3) On the application, the Court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the parties to the proceeding and it may grant such order as it thinks just.

1986 c42 Sch D rule 7.05

Intervenor as amicus curiae

7.06. Any person may, with the leave of the Court and without becoming a party to a proceeding, intervene in the proceeding as a friend of the Court for the purpose of assisting it.

1986 c42 Sch D rule 7.06

Change of parties

7.07. (1) Where a party dies or becomes bankrupt, or a corporate party is wound up or otherwise ceases to exist, but the cause of action survives, the proceeding shall not abate by reason of the death or bankruptcy or the corporate party having been wound up or ceasing to exist.

(2) Where at any stage of a proceeding the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, on ex parte application, if it thinks it necessary in order to ensure that all matters in the proceeding may be effectually adjudicated upon, order the other person to be made a party to the proceeding in substitution for the party and the proceeding to be carried on upon such other terms and conditions as the Court thinks just.

(3) Where an order is made under rule 7.07(2), the Court may order that, unless the other person becomes a party within the time specified in the order, the applicant, if the plaintiff in the proceeding, may enter such judgment as is just and any counter claim dismissed, or, if the defendant, may have the proceeding dismissed for want of prosecution and enter judgment on a counterclaim.

(4) Any person served with an order made ex parte under this rule, may within ten days after service of the order on that person, apply to the Court to have the order discharged or varied.

1986 c42 Sch D rule 7.07

Provisions consequential on making of order under rule 7.04 or 7.07

7.08. Where an order is made under rule 7.04 or 7.07,

(a) the originating document in the proceeding shall be amended accordingly within the time specified in the order, or, if no time is specified, within ten days after the making of the order, and a reference to the order and the date on which the amendment is made shall be endorsed upon the amended document;

(b) the person added or made a party under the order shall not become a party until the amended originating document is served upon that person;

(c) the rules as to service of an originating document and filing a defence or appearing on the application shall apply, with any necessary modification, to the amended originating document; and

(d) when a person becomes a party in substitution for another party, all things done in the course of the proceeding before the making of the order shall, unless the Court otherwise orders, have effect in relation to the new as they had to the former party, except that filing a defence by the new party shall not be dispensed with.

1986 c42 Sch D rule 7.08

Actions for possession of land

7.09. (1) The Court may at any stage of a proceeding for possession of land permit any person, who is in possession of land, whether in actual possession or by a tenant, and who is not a party, to be added as a defendant.

(2) An application by any person for an order under this rule may be made ex parte supported by an affidavit showing that the person is in possession of the land in question or, if by a tenant, naming the person.

(3) A person added as a defendant under this rule shall serve a copy of the order on the plaintiff and file a defence within the period specified in the order or, if no period is so specified, within ten days after the making of the order.

1986 c42 Sch D rule 7.09

Relator actions

7.10. Before the name of any person is used in a proceeding as a relator , that person shall give a written authorization to that person's solicitor to use that person's name and the authorization shall be filed in the Registry.

1986 c42 Sch D rule 7.10

Representative proceeding

7.11. (1) Where numerous persons have the same interest in a proceeding, not being a proceeding mentioned in rule 7.12, the proceeding may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

(2) At any stage of a proceeding under this rule the Court may, on the application of the plaintiff, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons to represent all, or all except one or more, of the persons having the same interest in the proceeding, and where, in exercise of the power conferred by this paragraph, the Court appoints a person not named as a defendant, it shall make an order under rule 7.04 adding that person as a defendant.

(3) An order given in a proceeding under this rule is binding on all persons represented in the proceeding as parties, but the Court may

(a) make it binding on any person not a party to the proceeding; and

(b) exempt any person represented as a party on the proceeding from any liability under an order in the proceeding.

1986 c42 Sch D rule 7.11

Representation of interested persons who cannot be ascertained, etc.

7.12. (1) In a proceeding concerning

(a) the administration of the estate of a deceased person;

(b) property subject to a trust; or

the Court may appoint one or more persons to represent any person, including any unborn or unascertained person, or the members of a class of persons who have a present, future, contingent, or unascertained interest in, or who may be affected by the proceeding, and who, or some of whom, cannot be readily ascertained or found.

(2) Where the person or persons appointed under rule 7.12(1), are parties to the proceeding, any order in the proceeding is binding upon any person or class so represented.

(3) Where in a proceeding under rule 7.12(1), a compromise is proposed, and any person or member of the class referred to in the paragraph and interested in the compromise is not a party to the proceeding, but

(a) there is another person in the same interest who is a party and who assents to the compromise or on whose behalf the Court sanctions the compromise; or

(b) the absent person or member of the class is represented by a person appointed under rule 7.12(1) who so assents,

the Court, if satisfied that the compromise will be for the benefit of the absent person or member of the class and that it is expedient to exercise the power, may approve of the compromise and order that it shall be binding on the absent person or member of the class, and unless the order has been obtained by fraud or non-disclosure of material facts, the person or member of the class shall be bound accordingly.

1986 c42 Sch D rule 7.12

Representation of beneficiaries by trustees, etc.

7.13. (1) A proceeding may be brought by or against trustees, executors or administrators in their capacity as such without joining any person having a beneficial interest in the trust or estate; and any order granted or made in the proceeding shall be binding on those persons, unless the Court otherwise orders, on the ground that the trustees, executors or administrators could not or did not represent the interests of these persons.

(2) Rule 7.13(1) shall not limit the power of the Court to order any person having such a beneficial interest to be made a party or to make an order under rule 7.12.

1986 c42 Sch D rule 7.13

Representation of deceased person interested in a proceeding

7.14. (1) Where it appears to the Court that a deceased person had an interest in a matter in question in a proceeding and has no personal representative, the Court may proceed in the absence of a person representing the estate of the deceased person or appoint a person to represent the estate for the purposes of the proceeding, and any order made or granted in the proceeding shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceeding.

(2) Before making an order under this rule, the Court may require notice of the application to be given to any person having an interest in the estate.

(3) Unless otherwise ordered by the court, the provisions of rule 7.14(1) do not impose a duty on the person appointed to represent an estate to spend money for the benefit of the estate of which such person has been appointed representative where money is not available in the estate to meet the expenses.

1986 c42 Sch D rule 7.14; 3/94

Parties to mortgage proceedings

7.15. It shall not be necessary to make subsequent encumbrancers defendants in a proceeding for foreclosure, possession or sale, but the Court may direct notice to be given to subsequent encumbrancers , by mailing by ordinary mail a copy of any order made in the proceeding and a copy of any advertisement of sale made pursuant to an order, and after mailing the copies any subsequent encumbrancer shall be bound by the proceeding in the same manner as if the subsequent encumbrancer had originally been made a party, and any person so notified may within one month thereafter apply to the Court to discharge, vary or add to the order, or for such other relief in the proceeding as he is entitled to, and the Court may make such order as is just.

1986 c42 Sch D rule 7.15

Declaratory judgment

7.16. No proceeding shall be open to objection on the ground that only a declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.

1986 c42 Sch D rule 7.16

Conduct of a proceeding

7.17. The Court may give the conduct of a proceeding to such person as it thinks fit.

1986 c42 Sch D rule 7.17

Public Officers: Death or separation from Office

7.18. (1) When a public officer is a party to a proceeding in his or her official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, his or her successor automatically becomes the party with no abatement of the proceeding, and unless the Court otherwise orders any further step in the proceeding shall be taken in the name of the substituted party, and any misnomer not affecting the substantive rights of the parties shall be disregarded.

(2) When a public officer brings or opposes a proceeding in his or her official capacity, the public officer may be described as a party by his or her official title rather than by name, but the Court may require his or her name to be added.

1986 c42 Sch D rule 7.18

Proceeding by a person entitled to legal aid, etc.

7.19. (1) Any person who lacks the financial means to commence or defend a proceeding may apply to the Court to be exempt from the payment of all or any of the costs and fees which may be payable by that person as a party in a proceeding.

(2) When an applicant under rule 7.19(1) has satisfied the Court that

(a) the applicant has complied with the legal aid regulations of the provincial plan providing legal aid or similar services, with respect to commencing or defending a proceeding thereunder; or

(b) the applicant is entitled to the exemption applied for even though the applicant has not complied with the legal aid regulations; and

(c) the applicant files with the Court a legal opinion that sets out the material facts in issue in the proceeding and establishes that the applicant has reasonable grounds for commencing or defending the proceeding;

the Court may

(d) exempt the applicant from the payment of all or any of the costs and fees in the proceeding;

(e) assign a solicitor or counsel, or both, to assist the applicant; or

(f) grant such other order as is just.

(3) A solicitor or counsel who gives a legal opinion or is assigned to assist any person under rule 7.19(2) shall not, except as allowed or provided for by the regulations of the Law Society of Newfoundland and Labrador or of any provincial plan providing legal aid or similar services, take or agree to take, or seek to obtain any fee, profit or reward for his or her services without the consent of the Court, and the solicitor or counsel shall be guilty of contempt of Court if the solicitor or counsel does so.

(4) A solicitor or counsel assigned to assist under rule 7.19(2) shall not, without the leave of the Court, be at liberty to refuse or discontinue his or her assistance, nor shall it be lawful for the person assisted to discharge any solicitor or counsel so assigned without the leave of the Court.

(5) No person exempted under this rule from the payment of any fees or costs, or any solicitor or counsel assigned to that person, shall discontinue, settle or compromise the proceeding without the leave of the Court.

(6) All the provisions of these rules shall, with any necessary modification, apply to any person exempted under this rule from the payment of any fees or costs.

1986 c42 Sch D rule 7.19; 2001 c42 s45

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