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PART III
APPEALS

RULE 57
CIVIL APPEALS
COURT OF APPEAL

Analysis



Definitions

57.01. In this rule

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

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

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

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

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

          (e.1)  "electronic version" means an electronic version in a format acceptable to the Court;

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

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

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

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

              (j)  "registrar" means the clerk, officer or employee of the Court designated by the Chief Executive Officer in consultation with the Chief Justice to be responsible for the operation of the registry of the Court;

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

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

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

             (n)  "written transcript" means a printed transcript of the evidence but does not include submissions to the Court made by a party unless those submissions are necessary to enable an issue raised on appeal to be determined. 

108/99 s1; 2001 c42 s45; 2/14 s1; 90/14 s1

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Leave to Appeal

57.02. (1)  Leave to appeal shall be obtained by application to the Court where

             (a)  during the course of a proceeding or prior to a final order, a party seeks to appeal from an interlocutory order, or

             (b)  a party seeks to appeal from an order

                      (i)  as to costs only,

                     (ii)  made by the consent of the parties, or

                    (iii)  made by the Supreme Court, Trial Division regarding the stay of an order pending appeal.

          (1.1)  A failure to obtain leave to appeal or to make an application under paragraph (1)( a) does not prejudice the right of a party to appeal a final order.

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

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

             (a)  an index,

             (b)  a copy of the notice of application,

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

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

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

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

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

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

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

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

             (e)  the Court is of the view that the interests of justice require that leave be granted.

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

             (a)  grant leave,

             (b)  refuse leave, or

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

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

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

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

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

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

108/99 s1; 2/01 s1; 2/03 s1; 91/14 s1

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Appeals

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

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

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

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

             (3)  A notice of appeal, other than in a tribunal appeal, shall be served as soon as practicable after the filing of the notice of appeal and as prescribed by rule 6.11 on any party in the proceeding in the court appealed from who may be directly affected by the appeal.

             (4)  A notice of appeal in an appeal (other than from an Interlocutory Order) under rule 54.04 or in an appeal in a declaratory proceeding relating to or affecting a provincial statute or a tribunal shall also be served as prescribed by rule 6.11 on the Provincial Court judge or tribunal involved, if not a party in the court appealed from, and on the Attorney General of Newfoundland and Labrador, but only the Attorney General of Newfoundland and Labrador shall be a Respondent.  Service on a tribunal may be effected by service on its secretary or chief executive officer.

             (5)  [Rep. by 90/14 s2]

             (6)  [Rep. by 90/14 s2]

             (7)  [Rep. by 90/14 s2]

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

108/99 s1; 2001 c42 s45; 10/03 s1; 15/11 s1; 2/14 s2; 90/14 s2

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Tribunal Appeals

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

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

             (3)  Unless otherwise ordered by the Court, a notice of appeal in a tribunal appeal shall be served as soon as practicable after the filing of the notice of appeal, as prescribed by rule 57.04(2) and as prescribed by rule 6.11, on the tribunal or its chief executive officer and on any other party in the proceeding before the tribunal.  If there is doubt as to the form of the notice of appeal, the appellant may apply to the Court for directions.

108/99 s1; 10/03 s2 ; 2/14 s3

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Extension of Time

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

108/99 s1

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Transcripts

57.06. (1) An appellant shall not file the written transcript in its entirety unless the whole of the transcript is necessary to enable the issues on appeal to be determined.

             (2)  Together with the factum, the appellant, or the first appellant where there is more than one appellant, shall file with the Court

             (a)  4 copies of the portion of the written transcript that is necessary to enable the issues on appeal to be determined; and

             (b)  a certificate in Form 57.06A

                      (i)  stating that the appellant is satisfied that the portions of the written transcript being filed are necessary to enable the issues on appeal to be determined, or

                     (ii)  if the appellant is satisfied, upon careful review, that the whole of the written transcript is necessary to enable the issues on appeal to be determined, stating, with particulars, the reasons for drawing that conclusion.

             (3)  Where there is more than one appellant, and an appellant other than the first appellant is satisfied that a portion of the written transcript has not been filed that is necessary to enable the issues on appeal to be determined, that appellant may file additional portions of the transcript, and the requirements of rule 57.06(2) shall apply with the necessary changes.

             (4)  Where a respondent is satisfied that an appellant has not filed a portion of the written transcript that is necessary to enable the issues on appeal or on a cross-appeal to be determined, the respondent may file additional portions of the transcript, and the requirements of rule 57.06(2) shall apply with the necessary changes.

             (5)  Not later than 5 clear days before the hearing of the appeal, additional portions of the written transcript may be filed where a party determines it to be necessary to enable the issues on appeal or cross-appeal to be determined, and the requirements of rule 57.06(2) shall apply with the necessary changes.  

             (6)  Upon filing a notice of appeal, the appellant, or the first appellant where there is more than one appellant, shall forthwith obtain a copy of the audio recording of the evidence from the court appealed from and shall deliver a copy to each party. 

             (7)  The appellant, or the first appellant where there is more than one appellant, shall,

             (a)  without delay, arrange for preparation of a written transcript of the portion of evidence necessary for preparation of the factum; and

             (b)  forthwith advise each party what arrangement has been made and the date when the written transcript is expected to be completed.

             (8)  If the appellant fails to comply with rule 57.06(7), the respondent may make an application to the Court for directions, and the Court may give such directions and make such order as to costs as may be appropriate.

             (9)  In addition to the portion of the written transcript required to be filed under paragraphs 57.06(1) to (4), the appellant, or the first appellant where there is more than one appellant, shall file with the Court

             (a)  where the entire written transcript of the evidence has been prepared, one electronic version of the transcript; or

             (b)  where the entire written transcript of the evidence has not been prepared,

                      (i)  one electronic version of the portion of the written transcript that has been prepared, and

                     (ii)  one electronic version of the entire audio recording of the evidence.

          (10)  The Court may at any time, upon application or of its own motion, order the filing of all or part of the written transcript.

          (11)  A written transcript shall be prepared in accordance with the Recording of Evidence Act and the Transcript Standards Manual of the Court Reporters’ Office.

          (12)  Where possible a key word index shall be included at the end of the written transcript. 

          (13)  A party disputing the accuracy of a transcript may make an application to the Court for directions.

          (14)  A Court determining the issues on appeal or cross-appeal may make an appropriate order as to costs if it is of the opinion that an appellant or respondent failed to comply with this rule.

          (15)  Together with a factum, one copy of each document filed with the Court shall be delivered to each party to the appeal.

          (16)  The cover of the written transcript shall be grey, and the transcript may be filed

             (a)  in a format in which 4 pages of the transcript are printed on a single page; and

             (b)  with the pages double-sided.

          (17)  Where the portion of the written transcript considered to be necessary to enable the issues on appeal or on cross-appeal to be determined is voluminous, a party may provide, or the Court may require a party to provide, a book of excerpts where that would be convenient for presentation of submissions at the oral hearing.

          (18)  The parties may, by agreement, apply to the Court for an order and directions to permit the use of an electronic rather than a paper version of the written transcript.

          (19)  Upon application, or of its own motion, the Court may at any time dispense with the preparation and filing of a written transcript and order that the appeal proceed using an audio recording of the proceedings in the court or tribunal from which the appeal is taken, and the Court may give such directions as may be appropriate. 

90/14 s3

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Alternative to transcripts

57.06.1. In lieu of the written transcript, an agreed statement of facts may be filed with the appellant’s factum along with a certificate signed on behalf of all parties indicating their agreement.

90/14 s4

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Form of Notice of Appeal

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

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

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

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

108/99 s1

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Notice of Intention to Participate

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

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

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

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

108/99 s1 ; 2/14 s4

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Cross-appeal

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

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

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

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

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

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

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

108/99 s1; 2/14 s5

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Stay

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

             (2)  On application of a party, the Court may

             (a)  stay an order appealed from pending disposition of the appeal; and

             (b)  in respect of an order by a tribunal that has been the subject of judicial review or a statutory appeal, stay the order of the tribunal pending disposition of the appeal.

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

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

             (5)  Where the Supreme Court, Trial Division has made an order regarding the stay of an order pending appeal, that order may be appealed to the Court of Appeal only with leave.

             (6)  Where no application to stay an order pending appeal has been made in the Supreme Court, Trial Division, an application to stay the order pending appeal may be made to the Court of Appeal.

108/99 s1; 91/14 s2

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Applications Respecting Initiation of Appeal

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

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

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

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

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

             (e)  the time within which the notice of appeal could be filed be extended to include the date on which it was actually filed.

             (2)  Every notice of appeal, application or response to either, that involves a question of custody of, access to, protection of, responsibility for or support of a child or children shall have noted in the top left corner, between the name of the court and the style of cause, the words "THIS MATTER INVOLVES A CHILD".

             (3)  Within 14 days of every filing or other step taken in a proceeding to which rule 57.11(2) applies, the Registrar shall, after consultation with counsel or the party involved, advise the Chief Justice of the status of the proceeding and, insofar as it may have been ascertained, the intention of counsel or the party with respect to furthering the proceeding.

             (4)  On instruction from the Chief Justice, the Registrar may, by notice given in writing, orally or electronically to all known counsel or the party where a party’s counsel is not known, specify a time by which any further step or steps in the proceeding is or are required to be taken, notwithstanding anything to the contrary specified elsewhere in these rules.

             (5)  In the event of failure of counsel or a party to conform to a requirement specified under rule 57.11(4) above, the Registrar will, on not less than 2 days' notice to counsel or the party where that party’s counsel is not known, set the matter of management of the proceeding down for a hearing before a judge of the Court, who may give directions and make orders as he or she considers appropriate.

             (6)  Notwithstanding rules 57.11(3), (4) and (5), the Chief Justice or a judge may, at any time, make any orders or give any directions he or she considers appropriate to ensure any matter to which rule 57.11(2) applies proceeds to a hearing as expeditiously as the circumstances allow.

108/99 s1; 2/01 s1; 10/12 s1; 2/14 s6

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Directions to Clerk of Trial Court

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

108/99 s1

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Security for Costs

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

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

108/99 s1

Appeal Books

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Appeal Books

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

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

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

             (2)  [Rep. by 90/14 s5]

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

             (a)  Part I - Documents

                      (i)  index of the documents therein,

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

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

                    (iv)  the decision or order appealed from.

             (b)  Part II - Evidence

                      (i)  index of witnesses,

                     (ii)  list of all exhibits,

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

                    (iv)  [Rep. by 90/14 s5]

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

                    (vi)  [Rep. by 90/14 s5]

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

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

             (4)  In a tribunal appeal an appeal book shall be prepared so far as possible as prescribed by rule 57.14(3) but, if necessary, the appellant may apply to the Court for directions regarding the form and content of the appeal book.

             (5)  The parties may by agreement omit any exhibits or documents which would normally be included in an appeal book in order to avoid the filing of material not necessary to enable the issues raised on appeal to be determined.

         (5.1)  Where the matter under appeal proceeded by way of an agreed statement of facts, the agreed statement of facts shall be filed as part of the appeal book.

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

             (7)  [Rep. by 90/14 s5]

108/99 s1; 2/14 s7; 90/14 s5

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Factums

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

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

             (3)  A factum shall consist of:

             (a)  An Index;

             (b)  Part I - Concise Statement of Facts;

             (c)  Part II - List of the Issues;

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

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

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

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

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

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

             (6)  Except where rule 57.09 or rule 57.15(4) applies, no reply factum to a respondent's factum shall be filed without the prior approval of the Chief Justice.

             (7)  Where approval is sought under rule (6), the applicant shall set out the reasons why it is appropriate to be allowed to file a reply including the reasons why it was not appropriate or convenient to have dealt with those matters in the applicant's original factum.

 

108/99 s1; 1/11 s1; 29/11 s1; 2/14 s8

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Form of Factum

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

108/99 s1

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Application to Strike Out or Dismiss

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

             (a)  striking out the notice of appeal; or

             (b)  dismissing the appeal

on the grounds that:

             (c)  no appeal lies to the Court,

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

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

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

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

108/99 s1

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Application to Set Time for Hearing, etc.

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

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

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

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

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

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

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

             (8)  In place of an application under rule 57.18(1), the Registrar may, upon the request of a party and in consultation with the other parties and the Chief Justice or a judge designated by him or her, set a time for the hearing of the appeal.

             (9)  Where a judge conducting a pre-hearing conference under rule 57.22 considers it appropriate to do so, he or she may set or modify a time for the hearing of the appeal.

108/99 s1; 10/10 s1

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Discontinuance

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

108/99 s1; 2/14 s9

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Striking Out and Deemed Abandonment of Appeals

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

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

             (a)  after hearing any party who appears, or

             (b)  where no one appears,

strike out the notice of appeal.

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

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

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

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

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

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

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

108/99 s1; 2001 c42 s45

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Evidence

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

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

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

108/99 s1

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Prehearing Conferences

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

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

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

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

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

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

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

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

108/99 s1

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Powers of the Court

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

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

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

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

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

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

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

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

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

108/99 s1; 2/01 s1

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Sessions of the Court

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

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

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

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

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

108/99 s1

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Delivery of Judgment

57.25. (1) The judgment of the Court may be given orally or determined from the judges' written reasons for judgment to be filed with the Court.

             (2)  An oral judgment may be given at the conclusion of the hearing of an appeal, or subsequently.  The Court may, at the time of giving oral judgment or subsequently, file written reasons explaining the oral judgment.  Where, at the time of delivery of oral judgment the Court does not file, or express an intention to file, written reasons explaining the oral judgment, the chairperson of the panel shall prepare, sign and file with the Court a memorandum succinctly explaining the disposition of the matter by the Court.

             (3)  Written reasons explaining an oral judgment or, where no reasons are filed, the memorandum of disposition, shall be the decision of the Court.

             (4)  Where written reasons are filed by more than one judge, the judgment of the Court shall be that indicated by the majority of the panel hearing an appeal.

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

             (6)  The Registrar shall send without charge a copy of all written reasons for judgment, the reasons explaining oral judgment or the memorandum of disposition, as the case may be, to the parties or their solicitors, to the court appealed from, and to such libraries and other persons as the Chief Justice directs in the particular case or generally.  Copies may be supplied to other persons on payment of the applicable charge therefor.

2/01 s1; 2/14 s10

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Consent Judgment

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

108/99 s1; 2/14 s11

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Formal Order

57.27. (1)  Upon a decision having been filed or deemed filed, an order shall be prepared by the successful party or may be prepared by any party stating the disposition of the appeal as directed by the Court and served upon other parties.  Such order shall be approved by the Judge who acted as chair of the panel or in the absence of that Judge, the next senior Judge on the panel, and be signed by and filed with the Court, who shall then notify all parties or their solicitors of the filing.

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

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

108/99 s1; 2/01 s1 ; 2/14 s12

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Disposition of Files, etc.

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

108/99 s1; 2/01 s1

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Entry of Orders by Registrar

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

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

108/99 s1

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Interlocutory Applications to the Court

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

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

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

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

             (5)  An application may be made ex parte where

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

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

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

             (6)  The Court may order that

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

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

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

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

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

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

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

108/99 s1; 2/01 s1; 2/14 s13

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Miscellaneous Powers

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

          (1.1)  Where the Registrar considers it necessary, the Registrar may apply to the Court for directions respecting the conduct of a pending appeal.

          (1.2)  Where an application is made under rule (1.1), the Registrar shall give notice to the parties.

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

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

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

             (5)  The Court may order that

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

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

108/99 s1; 2/01 s1; 2/03 s2