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RULE 49
ORDERS

Analysis



Form of order

49.01. (1) An order shall contain

             (a)  the title of the proceeding;

             (b)  the name of the judge or officer who granted it;

             (c)  recitals of the proceedings on which it is based;

             (d)  the operative parts of the order divided into convenient paragraphs and numbered consecutively; and

             (e)  the date of the order.

             (2)  An order may be in Forms 49.01A to 49.01E, where applicable, with any variation that the circumstances require.

             (3)  It is not necessary in any interlocutory order to reserve liberty to apply, but any party may apply to the Court from time to time.

1986 c42 Sch D rule 49.01

Order requiring an act to be done, etc.

49.02. (1) Subject to rule 49.02(2), an order that requires a person to do or refrain from doing an act, shall specify the time within which the person is to do or refrain from doing the act.

             (2)  Where a person is required by an order to pay money, give possession of any land, or deliver any goods, the time for doing so need not be expressed in the order, but the Court may specify such a time either in the order or subsequently.

1986 c42 Sch D rule 49.02

Drawing up of order

49.03. (1) Subject to rule 49.03(2), an order shall be drawn up by the successful party, settled as provided by rule 49.04(1), and filed with the Court provided that when an order is not filed within ten days after the decision or direction is given, any other party may draw up, settle and file the order.

             (2)  Unless the Court otherwise orders, an order need not be drawn up that, in addition to providing for costs, if any, merely grants leave to

             (a)  extend the time within which a person is required or authorized by a rule, order or direction to do or refrain from doing any act;

             (b)  issue an originating document, other than one for service out of the jurisdiction;

             (c)  amend an originating document or pleading; or

             (d)  file a document.

1986 c42 Sch D rule 49.03; 209/87 s6; 36/14 s61

Settlement of form and entry of order

49.04. (1) The form of an order shall be settled

             (a)  by the Court that heard the proceeding;

             (b)  where there has been a trial with a jury, by the presiding judge;

             (c)  by the Registrar pursuant to rule 49.05;

             (d)  where a statute or rule permits an order to be filed upon the filing of an affidavit or other document, by the Registrar after being satisfied that the documents filed comply with the statute or rule;

             (e)  by the officer authorized by a statute or rule to grant the order; and

             (f)  where a judge dies, retires, ceases to be a judge of the Court or for any other reason fails to settle an order, by another judge pursuant to the Act.

             (2)  The Registrar may refer the settlement of any order to the Court, which may either dispose of the matter or refer it back to the Registrar with such directions as it considers appropriate.

             (3)  When an order has been settled and filed, the Registrar shall sign and file the original copy and enter it in the cause book, provided no order shall be filed more than one year after it has been granted or settled without the leave of the Court.

             (4)  A copy of an order, certified as a true copy and bearing the signature of the Registrar, shall be received for all purposes and have the same force and effect as the original order.

1986 c42 Sch D rule 49.04

Orders made by the Registrar

49.05. (1) Notwithstanding the provisions of any other rule, the Registrar may make and file an order

             (a)  [Rep. by 36/14 s62]

                      (i)  [Rep. by 36/14 s62]

                     (ii)  [Rep. by 48/12 s4]

                    (iii)  [Rep. by 36/14 s62]

                    (iv)  [Rep. by 36/14 s62]

             (b)  [Rep. by 36/14 s62]  

                      (i)  [Rep. by 36/14 s62]  

                     (ii)  [Rep. by 48/12 s4]

                    (iii)  [Rep. by 139/04 s4]

             (c)  where the order applied for is to enter interlocutory or final judgment under rules 16.01 or 16.02.

             (2)  The Registrar may refer any order to the Court, which may make such order as is just or refer it back to the Registrar with such directions as are necessary.

             (3)  [Rep. by 36/14 s62]

1986 c42 Sch D rule 49.05; 157/88 s1; 139/04 s4; 48/12 s4; 36/14 s62

Date on which order takes effect

49.06. Unless the Court otherwise orders, an order shall be dated and take effect on the date it is pronounced, given or made; provided that, by leave of the Court, an order may be ante-dated or post-dated.

1986 c42 Sch D rule 49.06

Costs

49.07. Costs shall be allowed in an order as provided in Rule 55.

1986 c42 Sch D rule 49.07

Default and summary judgments

49.08. A party may apply for a default order under Rule 16, and for a summary order before trial under Rule 17 and rule 40.11.

111/10 s12

Conditional order

49.09. Unless the Court otherwise orders, an order obtained upon a condition that is not complied with shall be deemed to have been waived or abandoned as far as it is beneficial to the person obtaining it, and any person interested in the matter on the breach or non-performance of the condition may take such proceedings as the order warrants or as might have been taken if the order had not been made.

1986 c42 Sch D rule 49.09

Amendment of orders

49.10. An order may be amended as provided in rule 15.07.

1986 c42 Sch D rule 49.10

Satisfaction of judgment

49.11. The Registrar shall enter that an order has been satisfied when there is filed with the Court

             (a)  a satisfaction piece in Form 49.11A, signed by the judgment creditor, or the judgment creditor's solicitor of record, or by any other person entitled to the benefit thereof who attaches to the satisfaction piece an affidavit establishing that person's entitlement thereto; or

             (b)  an order of the Court releasing the order.

36/14 s63

Appeals from orders

49.12. A party may appeal from an order in the manner provided for in the Court of Appeal Rules , NLR 38/16.

1986 c42 Sch D rule 49.12; 33/22 s8

Service of order on person not a party

49.13. (1) Where in a proceeding for

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

             (b)  the execution of a trust; or

             (c)  the sale of any property,

the Court grants an order that affects the rights or interests of any person who is not a party or directs an account to be taken or inquiry made, the Court may in the order, or at any stage of the proceeding thereafter,

                      (i)  direct a copy of the order with a memorandum in Form 49.13A attached thereto, to be served either personally or in such other manner as the Court specifies, upon any person interested in the estate, trust or property, and the person served shall, subject to rule 49.13(2), be bound by the order to the same extent as that person would have been if that person had been a party, or

                     (ii)  where it is impractical to serve the order on any person, direct that service of the order be dispensed with and that the person shall, subject to rule 49.13(2), be bound by the order to the same extent as if that person had been served with a copy thereof under rule 49.13(1)(i).

             (2)  A person referred to in rule 49.13(1) may, within thirty days from the date of service of the order on the person from the date on which the person otherwise received notice of the order, apply to the Court to amend or discharge the order, or be permitted to attend any further hearing arising in the proceeding, and the Court may make such other order as it considers just.

1986 c42 Sch D rule 49.13

Powers on hearing of an application

49.14. On the hearing of an application relating to any proceeding taken or to be taken under an order, the Court may give directions with respect to

             (a)  the measures to be taken and the conduct thereof, including

                      (i)  the manner in which an account or inquiry is to be prosecuted,

                     (ii)  the evidence to be adduced,

                    (iii)  the parties or persons required to attend,

                    (iv)  the time within which any measure is to be taken,

                     (v)  fixing the day or days for the further attendance of any party or person, and

                    (vi)  revoking or varying any direction;

             (b)  requiring the parties constituting each or any class to be represented by the same solicitor, or, where the parties constituting a class cannot agree on a solicitor, to nominate a solicitor to represent the class;

             (c)  requiring any parties with a common solicitor to be separately represented with power to adjourn the hearing until they are;

             (d)  permitting any party, who has not been directed to attend on the hearing, to attend at the cost of the estate or other property to which the proceeding relates and to have the conduct thereof in addition to or in substitution for any other party; or

             (e)  any other matter as it deems necessary.

1986 c42 Sch D rule 49.14

Order requiring deed or document to be settled

49.15. (1) Where an order directs the form of a deed or other document to be settled by the Court, the Court may

             (a)  direct the party required to prepare a draft of the deed or other document, to serve a copy of the draft upon every other party thereto within a specified time;

             (b)  direct a party, who receives a copy of the draft, to serve that party's written objections to the form thereof on the party who prepared the draft within ten days, or such other time as is specified, with liberty to apply to the Court for further directions if the form cannot be agreed upon; or

             (c)  give such other directions as are just.

             (2)  Where a person neglects or refuses to comply with an order directing that person to execute a conveyance, contract or other document, or to endorse a negotiable instrument, the Court may order, on such terms and conditions as it deems just,

             (a)  that the conveyance, contract or document be executed, or

             (b)  that the negotiable instrument be endorsed

by a person appointed by the Court.

             (3)  A conveyance, contract, document or instrument executed or endorsed under rule 49.15(2) is deemed to be of the same force and effect as if it had been executed or endorsed by the person originally ordered to execute or endorse it.

             (4)  The person appointed by the Court to act pursuant to this rule is not liable for any damages for so acting.

1986 c42 Sch D rule 49.15

Advertising for creditors and other claimants

49.16. (1) On an application to advertise for creditors and other claimants, including heirs, next-of-kin or other unascertained persons, the Court may

             (a)  authorize the applicant or any other person to advertise in such manner and at such times as it deems necessary;

             (b)  fix the time within which, and appoint the person to whom, any creditor or claimant shall send the creditor's or claimant's name, address and particulars of the creditor's or claimant's claim, and the time, name and address of the person shall be stated in the advertisement;

             (c)  direct that, unless the Court otherwise orders, any person, who fails to send in full particulars of that person's claim to the person named in the advertisement within the time specified, shall be excluded from the benefit of any order that may be granted;

             (d)  subject to rules 49.17 and 49.18, direct how, when, and by whom, any claims are to be examined and disposed of; or

             (e)  make such other order as is just.

             (2)  Unless the Court otherwise orders, the advertisement in rule 49.16(1) shall be prepared by the applicant.

1986 c42 Sch D rule 49.16

Examination of claims

49.17. On the expiration of the time fixed under rule 49.16 for the filing of claims, a person appointed to receive the claims shall

             (a)  examine each claim filed with that person and determine, so far as that person is able, the validity of the claim; and

             (b)  at least ten days before the time appointed by the Court to adjudicate the claims, make an affidavit listing

                      (i)  the claims sent in pursuance of any advertisement, and

                     (ii)  the claims received other than in pursuance to an advertisement, or that have come to that person's knowledge,

and specifying with respect to each claim, whether or not it is a valid claim, in whole or in part, giving the reasons for such belief.

1986 c42 Sch D rule 49.17

Adjudication of claims

49.18. (1) On the adjudication of a claim, including any part thereof, the Court may

             (a)  allow or disallow any claim or part after or without proof thereof;

             (b)  direct any claim or part to be investigated in such manner as it thinks fit;

             (c)  require a claimant, on not less than ten days notice, to attend and prove the claimant's claim or part, or to furnish further particulars or evidence of it by affidavit or in such other manner as the Court orders, or to produce such documents in support of the claim or part as may be specified;

             (d)  require a person claiming to be a secured creditor to produce that person's security;

             (e)  adjourn the adjudication of any claim or part and, if required, fix the time within which any evidence in support of or in opposition to the claim or part shall be filed; or

             (f)  give such other directions or make such other order as is just.

             (2)  The Court may direct any claimant, who did not attend on the adjudication under rule 49.18(1) and whose claim for any part thereof has been allowed or disallowed, to be served with a notice in Form 49.18A informing the claimant of that fact and stating that, if the claimant is dissatisfied with the amount allowed or the disallowance of the claimant's claim, the claimant must within ten days from the receipt of the notice apply for a rehearing of the claim, otherwise the adjudication shall be final.

             (3)  Service of a notice on any claimant under rule 49.18(2) shall be at the address stated in the claimant's claim, or if the claimant is represented by a solicitor at the business address of the solicitor.

1986 c42 Sch D rule 49.18; 36/14 s64

Certificate of judgment of Supreme Court of Canada

49.19. When a judgment of the Supreme Court of Canada on appeal is certified by the Registrar thereof and filed with the Court, the Registrar shall enter the same and all subsequent proceedings may be taken thereon as if the judgment had been given or pronounced by the Court.

36/14 s65

Judgments under the Canada and the United Kingdom Reciprocal Recognition and Enforcement of Judgments Act

49.20. (1) When a judgment of the United Kingdom is filed with the Court pursuant to the provisions of The Convention between Canada and United Kingdom providing for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, the Registrar shall enter the same and all subsequent proceedings may be taken thereon as if the judgment had been given or pronounced by the Court.

             (2)  The registration of a judgment under the Convention may be set aside if

             (a)  the judgment debtor, being the defendant in the original proceedings, either was not served with the process of the original court or did not receive notice of those proceedings in sufficient time to enable that person to defend the proceedings and, in either case, did not appear;

             (b)  another judgment has been given by a court having jurisdiction in the matter in dispute prior to the date of judgment in the original date; or

             (c)  the judgment is not final or an appeal is pending or the judgment debtor is entitled to appeal or to apply for leave against the judgment in the territory of origin.

6/89 s1; 36/14 s66