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RULE 20
PAYMENT
INTO AND OUT OF COURT AND TENDER

Analysis



Payment into Court in satisfaction

20.01. (1) A defendant may at any time before the commencement of the trial or hearing pay into Court a sum of money in satisfaction of a cause of action in respect of which a plaintiff claims, or where there is more than one cause of action in satisfaction of any or all of them, and the defendant may increase any payment already made.

             (2)  Money may be paid into Court under rule 20.01(1) by one or more of several defendants sued jointly or in the alternative.

             (3)  On making a payment into Court under Rule 20, a defendant shall forthwith file with the Court and serve on every other party a notice of payment in Form 20.01A stating the cause of action in satisfaction of which payment is made and the amount paid, or where there is more than one cause of action stating whether the payment is in satisfaction of all the causes of action and the amount paid, or if in satisfaction of one or more of them, stating the causes of action and the amount paid in respect of each of them.

             (4)  Where a single sum of money is paid into Court in respect of two or more causes of action and a defendant on written demand fails to specify in writing the amount paid in respect of each cause of action and a plaintiff is embarrassed by the failure, the Court may order the defendant to amend the notice of payment so as to specify the amounts.

             (5)  Subject to rule 20.06 and to the right of any defendant to increase any payment already made into Court, a notice of payment shall not be withdrawn or amended without the leave of the Court or the written consent of the parties.

             (6)  Unless a notice of payment otherwise provides, a payment into Court under Rule 20 shall be deemed to be an offer of compromise made without prejudice and not an admission of the defendant's liability for the cause of action in respect of which it is paid.

1986 c42 Sch D rule 20.01; 36/14 s20

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Payment into Court of money tendered

20.02. Where a defence of tender before the commencement of a proceeding is pleaded, the defence may not be relied upon until the money alleged to have been tendered is paid into Court and notice of the payment is served upon the parties.

1986 c42 Sch D rule 20.02

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Acceptance and payment out of money paid into Court in satisfaction

20.03. (1) Where money is paid into Court under rules 20.01, 20.02 and 20.05, a plaintiff may, while the money remains in Court but before the commencement of the trial of hearing, accept the whole or any portion thereof in satisfaction of any or all of the specific causes of action in respect of which the money was paid in by giving notice of the acceptance thereof in Form 20.03A to every other party and thereupon all proceedings in respect of these causes of action shall be stayed as against the defendant making the payment and any other defendant sued jointly or in the alternative with the defendant.

             (2)  With leave of the Court, the money so accepted in satisfaction of the causes of action specified in the notice of acceptance shall be paid out to the plaintiff or the plaintiff's solicitor.

1986 c42 Sch D rule 20.03

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Costs on payment of money out of Court

20.04. (1) Where a defendant has pleaded a defence of tender before the commencement of a proceeding in respect of a cause or causes of action and paid the amount allegedly tendered into Court and

             (a)  the plaintiff accepts the amount paid in in satisfaction of the cause or causes of action, the defendant shall recover the costs of defending the cause or causes of action and may have them paid out of the money paid in or may enter judgment therefor; or

             (b)  the defence of tender is not proved and the plaintiff does not accept the amount paid in, the plaintiff shall, if successful, be entitled to the costs of the cause or causes of action although the plaintiff does not recover more than the amount paid in.

             (2)  Where money has been paid into Court and rule 20.04(1) does not apply, and

             (a)  the plaintiff accepts the money in satisfaction of the cause or causes of action with respect to which it was paid in, or

             (b)  the amount adjudged due to the plaintiff on the cause or causes of action with respect to which the money was paid in is not more than the money paid in,

the plaintiff shall recover the costs in respect of the cause or causes of action to the time of receiving notice of the payment in and the cost of taking the money out and the defendant shall recover the costs of defending the cause or causes of action after that time, and the costs shall be set off and judgment entered for the balance.

             (3)  An order authorizing payment of the money so accepted shall provide for the costs relating to the causes of action to which the payment relates and judgment may be entered for the costs or when a defendant has alleged tender before commencement of a proceeding and a compliance with rule 20.02, the order may also provide for payment of the costs of the defendant out of the money in Court.

1986 c42 Sch D rule 20.04

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Payment into Court by defendant with counterclaim

20.05. (1) Where a counterclaim is asserted, a defendant in the notice of payment in Form 20.01A shall, in addition to complying with rule 20.01(3), state whether or not the payment into Court has been reduced by an offer to surrender all or any of the causes of action in the counterclaim, and if so, the amount of the reduction made in respect of all or each of the causes of action being surrendered.

             (2)  Where a surrender of all or any of the causes of action in a counterclaim is accepted in full or part satisfaction, any proceeding with respect to any such cause of action shall be stayed.

1986 c42 Sch D rule 20.05

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Payment of money out of Court to defendant

20.06. When the Court orders or if the trial or hearing has not been commenced and a period of thirty days has expired from the payment of any money into Court under the preceding rules and a defendant has given to all the parties ten days' notice in writing of the defendant's intention to take the money out of Court, the defendant upon filing the order or an affidavit of compliance with the provisions hereof, shall be entitled to receive payment of any money remaining in Court which has not been accepted by the plaintiff.

1986 c42 Sch D rule 20.06; 36/14 s21

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Non-disclosure of payment into Court

20.07. Except in a proceeding where the defence of tender before the commencement of the proceeding is pleaded, the fact that money has been paid into Court under the foregoing provisions of this rule shall not be pleaded, or communicated to the Court or jury at or before the trial or hearing of the proceeding until all questions of liability and the amount of debt and damages have been decided, or the proceeding has been stayed under rules 20.03(1) or 20.03(2).

1986 c42 Sch D rule 20.07

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Counterclaims and third party proceedings

20.08. A party opposing a counterclaim and a third party may pay money into Court in satisfaction of the counterclaim or third party proceeding and the provisions of Rule 20 shall apply with any necessary modification.

1986 c42 Sch D rule 20.08

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Payment into Court under The Trustee Act

20.09. (1) A payment into Court under The Trustee Act shall be accompanied by an affidavit of any trustee setting forth

             (a)  a short description of the trust and of the instrument creating it or of the circumstances in which it arose;

             (b)  the names of the persons interested in or entitled to the money or securities to be paid into Court with their addresses so far as known; and

             (c)  an address for service.

             (2)  Notice of an application to pay money into Court or of the payment into Court, as the case may be, shall be given to the persons referred to in rule 20.09(1)( b).

1986 c42 Sch D rule 20.09

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Money of persons under disability

20.10. Money paid into Court shall not be paid out to or on behalf of a person under disability without an order of the Court.

1986 c42 Sch D rule 20.10

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Method of payment of money into Court

20.11. Unless the Court otherwise orders, on payment of any money into Court, the Registrar shall

             (a)  give a receipt for the payment which shall contain a notation of the proceeding and purpose for which the payment was made;

             (b)  maintain a ledger account of his or her records respecting the payment; and

             (c)  deposit same in a trust account in a chartered bank.

36/14 s22

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Money paid into Court under order, etc.

20.12. (1) Subject to rules 20.03 and 20.06 money paid into Court shall not be paid out except in accordance with an order of the Court.

             (2)  No order shall be made for payment out of Court without the production of a certificate of the Registrar that the moneys are in Court.

             (3)  The interest earned on money in Court shall be paid to the person entitled thereto on payment out of the principal, subject, however, to a deduction of five per centum of such interest as compensation for handling and investing the money paid into Court.

1986 c42 Sch D rule 20.12; 36/14 s23

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Payment of money to estate of deceased person

20.13. When the estate of a deceased person, who has died intestate, is entitled to any moneys in Court, and no administration has been taken out and the assets of the estate are under $2,500.00, including the amount in Court to which such estate is entitled, the Court may direct that the amount in Court shall be paid or transferred to the person or persons beneficially entitled thereto.

1986 c42 Sch D rule 20.12; 36/14 s23

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Unclaimed balances paid into Consolidated Revenue Fund

20.14. Unless the Court otherwise orders, the Chief Executive Officer shall transfer to the Consolidated Revenue Fund the balance remaining to the credit of a proceeding

             (a)  when the balance does not exceed $500.00 and five years have elapsed without the balance being closed; or

             (b)  in any case, when ten years have elapsed after the last payment into Court in the proceeding,

but the transfer shall not prejudice the right of any person entitled to the balance to obtain payment.

36/14 s24