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NEWFOUNDLAND AND LABRADOR
REGULATION 52/97

Small Claims Rules
under the
Small Claims Act

Amended by:

41/99
7/00
31/01
2001 c42 s45
51/03
34/04
105/05
58/07
84/09
41/11

NEWFOUNDLAND AND LABRADOR
REGULATION 52/97

Small Claims Rules
under the
Small Claims Act

(Filed May 21, 1997)

Under the authority of section 7 of the Small Claims Act , the Rules Committee makes the following rules.

Dated at St. John’s , May 21, 1997 .

Donald S. Luther
Chief Provincial Court Judge

Robert Smith
Provincial Court
Judge

Kenneth Templeton
Law Society Representative

Mary J. (McCarthy) Mandville
Attorney General Designate

RULES

TABLES OF CONTENTS

RULE 1 - SHORT TITLE

RULE 2 - DEFINITIONS

RULE 3 - MAKING A CLAIM

RULE 4 - SERVING THE STATEMENT OF CLAIM

RULE 5 - REPLYING TO A CLAIM

RULE 6 - MAKING A CLAIM AGAINST A PLAINTIFF

RULE 7 - THIRD PARTIES

RULE 8 - WHERE A DEFENDANT DOES NOT REPLY TO A CLAIM

RULE 9 - DOCUMENTS THAT SHALL BE SERVED

RULE 10 - SETTLEMENT CONFERENCE

RULE 11 - CHANGING OR WITHDRAWING A STATEMENT OF
                      CLAIM OR REPLY OR OTHER DOCUMENT

RULE 12 - WITNESSES

RULE 13 - TRIAL

RULE 14 - OFFER TO SETTLE

RULE 14.1 - SATISFACTION PIECE

RULE 15 - PAYMENT OF THE JUDGMENT

RULE 16 - PAYMENT HEARING

RULE 17 - WARRANT OF ARREST FOR NOT ATTENDING COURT

RULE 18 - WHERE A WARRANT OF IMPRISONMENT IS ISSUED

RULE 19 - APPLICATIONS TO THE COURT

RULE 20 - GENERAL

RULE 20.1 - ELECTRONIC FILING

RULE 21 - RULES ABOUT SERVICE OF DOCUMENTS

RULE 22 - PROVING SERVICE

RULE 23 - CONTEMPT

RULE 24 - COSTS, FEES AND EXPENSES

RULE 25 - USE OF FORMS

RULE 26 - REPEAL

SCHEDULE - FEES AND COSTS

RULE 1

SHORT TITLE

             These rules may be cited as the Small Claims Rules .

52/97 Rule 1

RULE 2

DEFINITIONS

             In these rules

             (a)  "Act" means the Small Claims Act ;

             (b)  "articled clerk" means a student as defined in the Law Society Act ;

             (c)  "court" means the Provincial Court of Newfoundland and Labrador or a Provincial Court judge;

             (d)  "creditor" means a person who, by order of the court, a debtor is required to pay;

             (e)  "debtor" means a person who, by order of the court, is required to pay a creditor;

              (f)  "defendant" means a person against whom a claim is made;

           (f.1)  "electronic document" means a document that has been transmitted for filing electronically;

             (g)  "judge" means a judge of the court appointed under the Provincial Court Act, 1991;

             (h)  "lawyer" means a member as defined in the Law Society Act ;

              (i)  "next friend" means a person approved by the court who acts in a matter on behalf of a minor;

              (j)  "peace officer" means a member of the Royal Newfoundland Constabulary, a member of the Royal Canadian Mounted Police, or the High Sheriff, a sub-sheriff, a deputy sheriff or a bailiff appointed under the Sheriff’s Act, 1991 ;

             (k)  "plaintiff" means a person who is making the claim;

              (l)  "registered user" means a person whose remote access client application has been accepted by the court; and

            (m)  "remote access client application" means the application referred to in rule 20.1(3).

52/97 Rule 2; 2001 c42 s45; 84/09 Rule 1

RULE 3

MAKING A CLAIM

Completing a statement of claim

             (1)  To make a claim a person shall complete a statement of claim following the instructions on Form 1.

Filing a statement of claim

             (2)  A plaintiff shall file a statement of claim and pay the required fee at the court nearest to where

             (a)  the transaction or event that resulted in the claim took place;

             (b)  the plaintiff lives or carries on business; or

             (c)  the defendant lives or carries on business.

Claim against more than one defendant

             (3)  A plaintiff may name more than one defendant in a statement of claim where the claim against each defendant is related to or connected with the original subject matter of the claim.

Claim is for more than $25, 000

             (4)  A plaintiff who has a claim amounting to more than $25, 000 may abandon that part of the claim in excess of $25, 000.

Abandoning part of a claim

             (5)  To abandon part of a claim, the plaintiff shall state on the statement of claim that the amount over $25,000 is abandoned.

Effect of abandoning part of a claim

             (6)  A plaintiff who abandons part of a claim may not at any time sue for the abandoned part of the claim, unless the whole of the claim is withdrawn under rule 6(10) and then the claim is pursued in the Trial Division.

Motor vehicle collision claim

             (7)  A plaintiff whose claim is based on damage to his or her vehicle, resulting from a motor vehicle accident, shall attach to his or her statement of claim either an itemized estimate of damage from a qualified mechanic or a receipt for repairs completed by a qualified mechanic.

Judge may refuse all or part of a claim

             (8)  A judge may refuse to accept an itemized estimate of damage, or may refuse full recovery of a claim based on a receipt submitted under rule 3(7).

Claim against a person who is deceased

             (9)  A plaintiff making a claim against a deceased person shall contact the Estates Office of the Supreme Court of Newfoundland and Labrador to determine whether or not a representative of the estate has been appointed.

Deceased Person’s Estate has a representative

           (10)  Where a representative of an estate has been appointed, a claim against the deceased person shall be made against the appointed representative, and the statement of claim shall state that the claim is made against the representative as the representative of the deceased person.

No representative of a deceased person’s estate appointed

           (11)  Where, a representative of a deceased person’s estate has not been appointed, a plaintiff shall apply, under the Rules of Supreme Court, 1986 , to have a representative appointed before proceeding with a claim under these rules.

52/97 Rule 3; 2001 c42 s45; 105/05 Rule 1; 41/11 Rule 1

RULE 4

SERVING THE STATEMENT OF CLAIM

Who shall be served and what documents shall be served?

             (1)  The plaintiff shall serve, in the manner set out in rule 21, each defendant named in the statement of claim with the defendant's copy of the statement of claim.

Time limit for service

             (2)  Where a statement of claim has not been served within 12 months after it was issued by the court it expires, but the plaintiff may apply to have it renewed under rule 19(3).

Service of a statement of claim where individual is outside the province

             (3)  A statement of claim may be served on an individual outside the province where

             (a)  the individual normally resides in the province;

             (b)  the transaction or event that resulted in the claim took place in the province; or

             (c)  the court gives permission under rule 19(3).

Time limits on a statement of claim served outside the province

             (4)  Before a statement of claim is served outside the province, the plaintiff shall write the time limit for filing a reply from outside the province on the statement of claim as set out in rule 5(5) and file a copy, with that time limit on the statement of claim, at the court.

Where there is difficulty finding a defendant

             (5)  Where a statement of claim cannot be served, the plaintiff may apply to the court under rule 19(3) who may

             (a)  permit another method of service to be used; and

             (b)  set the time limit for filing a reply.

When another service method is permitted

             (6)  Where another method of service is permitted, a copy of the court order shall be served with the statement of claim unless the court

             (a)  orders otherwise; or

             (b)  orders notice to be given by advertisement.

Effect of using another service method

             (7)  A statement of claim that is served as permitted by a court order is validly served.

Notice by advertisement

             (8)  Where the court permits notice to be given by advertisement, the party who obtained the order shall pay for the advertisement.

52/97 Rule 4; 84/09 Rule 2

RULE 5

REPLYING TO A CLAIM

What are a defendants options upon receipt of statement of claim?

             (1)  A defendant who receives a statement of claim may take one or more of the following actions:

             (a)  pay the amount claimed directly to the plaintiff and ask the plaintiff to withdraw the claim under rule 11;

             (b)  admit all or part of the claim;

             (c)  admit all or part of the claim and propose a payment schedule following the requirements of rule 15;

             (d)  oppose all or part of the claim by listing reasons why the claim is opposed;

             (e)  make a counterclaim against the plaintiff under rule 6;

              (f)  apply to transfer the proceeding as set out in rule 5(6); and

             (g)  make a claim against a third party under rule 7.

How does a defendant reply?

             (2)  A defendant who intends on taking an action under rule 5(1)(b) to (g) shall complete a reply in Form 2.

Where does a defendant file a reply?

             (3)  A defendant shall file a reply at the court where the statement of claim was filed.

Who shall the defendant serve a reply on?

             (4)  A defendant shall serve a copy of the reply on all parties named in the statement of claim in the manner set out in rule 21.

Time for replying

             (5)  A reply to a statement of claim shall be filed by a defendant

             (a)  within 10 days after service, where the defendant was served in the province, or within 30 days after service where the defendant was served outside the province; and

             (b)  before the court has made a default order or set a date for a hearing.

Transfer to another court

             (6)  Where a defendant resides a considerable distance from the court where the statement of claim was issued, and the defendant has outlined in his or her reply a defence that is more than a bare denial, the defendant may apply to the court under rule 19(2)(f) to have the case transferred to a court near where the defendant resides, where the defendant can satisfy the court that there is a reason for the transfer and the court shall give notice of the application to transfer to the plaintiff, and the plaintiff may, within 14 days of receiving the notice, make a reply.

Where the defendant admits all or part of a claim in the reply

             (7)  Where a defendant admits all or part of the claim in a reply and proposes a payment schedule, that defendant shall serve a copy of the reply with the section entitled "Agreement with claim" completed.

How plaintiff can accept admission

             (8)  Before the settlement conference, a plaintiff may accept an admission in full settlement of a claim by applying to the court in Form 17 for a judgment in the same terms as the defendant’s admission.

Where the defendant does not propose a payment schedule

             (9)  Where a plaintiff accepts the admission of a defendant, but the defendant has not proposed how the amount owed shall be paid, the plaintiff may apply to the court for a judgment, and follow the steps set out in rule 15 to enforce the judgment including requesting a payment hearing to determine how the money will be paid.

Where the defendant is the Crown

           (10)  A default judgment shall not be issued against the Crown except in accordance with subsection 19(2) of the Proceeding Against the Crown Act .

52/97 Rule 5; 41/99 Rule 1; 7/00 Rule 1; 84/09 Rule 3

RULE 6

MAKING A CLAIM AGAINST A PLAINTIFF

What is a counterclaim?

             (1)  A counterclaim is a claim made by a defendant against a plaintiff that can be conveniently tried at the same time as the plaintiff’s claim, and includes a set-off.

Making a counterclaim

             (2)  A defendant may make a counterclaim against a plaintiff in the reply following the instructions on Form 2.

Serving a counterclaim

             (3)  A defendant shall serve a counterclaim which is contained in the reply on all parties named in the statement of claim in the manner set out in rule 21.

Where a plaintiff receives a reply that makes a counterclaim

             (4)  A plaintiff who receives a reply which makes a counterclaim may take one or more of the following actions:

             (a)  pay the amount of the counterclaim directly to the defendant and ask the defendant to withdraw the counterclaim;

             (b)  admit all or part of the counterclaim;

             (c)  admit all or part of the counterclaim and propose a payment schedule under rule 15; and

             (d)  oppose all or part of the claim by listing reasons why the claim is opposed.            

Where counterclaim is for more than $25, 000

             (5)  A defendant who has a counterclaim amounting to more than $25, 000 may

             (a)  abandon part of the counterclaim so it may be heard in the court; or

             (b)  begin an action in the Trial Division.

How to abandon part of a counterclaim

             (6)  To abandon part of a counterclaim, the defendant shall state on the counterclaim part of the reply that the amount over $25, 000 is abandoned.

The effect of abandoning part of a counterclaim

             (7)  A defendant who abandons part of a counterclaim may not at any time sue for that part.

Where a defendant begins a Trial Division action

             (8)  A defendant who begins an action in the Trial Division against a plaintiff may apply to a Provincial Court judge for an order postponing the small claims trial under rule 19(3).

Where the small claims trial is held first

             (9)  Where the small claims trial is held and a judgment is entered or other order is made against the defendant, the judge may order the plaintiff not to take any action to enforce the judgment or order

             (a)  until a date set by the judge; or

             (b)  until a decision is given by the Trial Division on the defendants action,

whichever comes first.

Where a plaintiff has already abandoned part of a claim

           (10)  Where a defendant begins an action in the Trial Division against a plaintiff who has abandoned part of a claim under rule 3(5), the plaintiff may withdraw the claim from the court, and

             (a)  begin an action in the Trial Division and claim the higher amount; or

             (b)  participate in the action begun by the defendant in the Trial Division and claim the higher amount.

52/97 Rule 6; 105/05 Rule 1; 41/11 Rule 2

RULE 7

THIRD PARTIES

Where a defendant thinks someone else is liable to pay the claim

             (1)  Where a defendant who has filed a reply thinks another person is liable to pay all or part of the claim, the defendant may make a claim against the other person by:

             (a)  completing a third party notice following the instructions on Form 3, where the settlement conference has not been held; or

             (b)  applying to a judge under rule 19(3) for an order permitting a claim to be made against the other person where the settlement conference has been held.

Filing a third party notice

             (2)  A defendant shall file a third party notice at the court where the statement of claim was filed.

What documents shall be served?

             (3)  The defendant shall serve, in the manner set out in rule 21, a person named as the third party with the following:

             (a)  a copy of the third party notice;

             (b)  [Rep. by 84/09 Rule 4];

             (c)  a copy of the statement of claim;

             (d)  a copy of the reply to the statement of claim; and

             (e)  a copy of the notice of settlement conference or trial, where one has been issued.

How to serve the third party

             (4)  A defendant shall serve the documents referred to in rule 7(3) on a third party in the same way as required for service of a statement of claim under rule 21.

Filing a certificate of service

             (5)  Within 21 days after filing a third party notice, the defendant shall file a certificate of service in Form 4 at the court to prove that the documents have been served as required, unless the third party has filed a reply.

Where the certificate of service is not filed within 21 days

             (6)  Where a defendant does not file a certificate of service as required under rule 7(5), the third party notice shall expire, unless renewed for a further 21 days by the court upon the application of the defendant, under rule 19(3).

Notifying the other parties

             (7)  A defendant shall serve a copy of the third party notice on each of the other parties within 21 days after it is filed in the manner set out in rule 21.

How a third party replies

             (8)  To reply to a third party notice, the person named as a third party shall follow the rules for replying to a claim under rule 5.

What a judge may do

             (9)  Where a third party has been named, a judge may make an order involving any of the parties.

Another settlement conference shall be held

           (10)  Where a third party files a reply after a settlement conference another settlement conference shall be held, unless a judge orders otherwise.

52/97 Rule 7; 84/09 Rule 4

RULE 8

WHERE A DEFENDANT DOES NOT REPLY TO A CLAIM

A plaintiff may ask for a default judgment

             (1)  Where a defendant does not file a reply within the time limit under rule 5(5), the plaintiff may ask the court for a default judgment.

Judges permission needed in certain cases

             (2)  A default judgment shall not be made on a counterclaim or third party notice, except under rule 19(2)(j).

How to ask for a default judgment

             (3)  To ask for a default judgment under rule 8(1), a plaintiff shall complete Form 5 following the instructions on the form, and file it at the court where the statement of claim was filed, together with a copy of the certificate of service for the statement of claim.

What the court may do when a plaintiff asks for a default judgment

             (4)  Where a plaintiff completes the steps in rule 8(3), a court may

             (a)  enter a default judgment where he or she is satisfied that there is sufficient proof; or

             (b)  set a date for a plaintiff to prove a claim or argue for a remedy.

What is included in a default judgment

             (5)  A default judgment shall require a defendant to pay the amount claimed plus amounts expended for filing and service of documents as allowed under rule 24.

Where there are other defendants

             (6)  Where another defendant has filed a reply and a date is set for a settlement conference or trial of the claim, the hearing shall be held at that time, unless a judge orders otherwise.

No notice of hearing

             (7)  A defendant who has not filed a reply is not entitled to receive notice of a hearing under this rule.

A defendant loses the right to reply

             (8)  After a date is set for a hearing under this rule, a defendant may not file a reply without the permission of a judge under rule 19(3).

Result of hearing

             (9)  After hearing the plaintiff, the judge may,

             (a)  where the claim is for money, make a default judgment that requires the defendant to pay the amount determined by the judge plus expenses under rule 24 and any interest the plaintiff is entitled to; and

             (b)  in any other case, make the appropriate order.

Where a plaintiff does not attend

           (10)  Where a plaintiff does not attend at the time set for a hearing under this rule, the judge may cancel the hearing, but the plaintiff may ask the court to reschedule it.

How payment may be collected

           (11)  The creditor may collect payment under the default judgment in accordance with rule 15.

Notice of application to set aside

           (12)  [Rep. by 84/09 Rule 5]

Right to be heard

           (13)  Notwithstanding rule 19(5), where an application has been made to set aside a default judgment the judge may, where he or she considers it appropriate, dispense with a hearing.

52/97 Rule 8; 41/99 Rule 2; 7/00 Rule 2; 84/09 Rule 5

RULE 9

DOCUMENTS THAT SHALL BE SERVED

What should be filed with the court

             (1)  Where a claim has been scheduled for a trial, application or settlement conference, the parties to that claim shall file with the court a list of documents, without copies of those documents, that the party is going to use in the trial, application or settlement conference.

When should documents be served?

             (2)  A list of documents and a copy of each document shall be served, in the manner set out in rule 21, on the other party at least 3 days before a trial, application or settlement conference unless rule 13 provides otherwise.

Privileged or inadmissible documents

             (3)  Where there is a reason that the document should not have to be produced because it is privileged or is not admissible in court the party claiming privilege or inadmissibility, shall state this on his or her list of documents.

Can the court order a party to file documents?

             (4)  Where a party does not file their list of documents with the court and serve copies on the other parties named in the statement of claim in the manner set out in rule 21, the court may order that party to do so.

Changing the list of documents

             (5)  Where a party has filed and served his or her list of documents and realized the list was not correct or was incomplete, that party shall file another list and provide the other party with copies of the documents not included in his or her first list.

What happens if a party does not file the list of documents or serve the list and documents on the other party?

             (6)  Where a party does not file his or her list of documents and serve the list and documents in the manner set out in rule 21 on the other party, the court may make an order it considers just, including an order that the proceeding be dismissed, or an order that the defence be struck and judgment entered.

Can an order under this rule be changed?

             (7)  An order made under this rule may be withdrawn or changed by another order on the terms that the court considers just.

52/97 Rule 9

RULE 10

SETTLEMENT CONFERENCE

Settlement conference

             (1)  Before a trial date is set, a settlement conference may be held at the time and place set by the court, unless the court orders otherwise.

Notice of settlement conference

             (2)  The court shall serve a notice of settlement conference on the parties at least 14 days before the date set for the settlement conference.

Who shall attend?

             (3)  All parties to a claim shall attend the settlement conference.

Where a representative attends a settlement conference

             (4)  A party who is not a natural person, shall be represented at a settlement conference by a person who has authority to settle the claim.

What each party shall bring

             (5)  A party to a claim shall bring to the settlement conference all documents and reports that the party shall rely on at trial.

Where the documents or reports are not ready

             (6)  Where, despite the best efforts of a party, a document or report cannot be brought to a settlement conference, that party may apply to the court for an order postponing the conference under rule 19(3) as long as the application is filed at least 7 days before the date set for the conference.

Expenses for attending settlement conference unprepared

             (7)  Where a settlement conference cannot be conducted properly because a party is not prepared for it, the judge may order that party to pay the reasonable expenses of the other party or parties.

How to change a settlement conference date

             (8)  A party may change a settlement conference date

             (a)  with the prior consent of all parties, by contacting the court to determine a suitable date;

             (b)  by filing a consent to change the date under rule 19(1); or

             (c)  by applying for an order changing the date of the settlement conference under rule 19(3) at least 7 days before the date set for the settlement conference, unless the court orders otherwise, and giving notice to the other party as the court requires.

Notice of change of date

             (9)  Where the date of the settlement conference is changed, the court shall notify the parties of the place and time of the rescheduled conference.

What happens at a settlement conference where a judge presides?

           (10)  At a settlement conference where the person hearing the matter is a judge, the judge may do one or more of the following:

             (a)  facilitate settlement of the matter;

             (b)  decide on issues that do not require evidence;

             (c)  enter a judgment or make another appropriate order, in terms agreed to by the parties, in accordance with rule 15;

             (d)  set a trial date where a trial is necessary;

             (e)  discuss evidence that shall be required and the procedure that shall be followed where a trial is necessary;

              (f)  order a party to produce any information at the settlement conference or anything as evidence at the trial;

             (g)  where damage to property is involved in the dispute, order a party to permit a person chosen by another party to examine the property damage;

             (h)  adjourn the settlement conference and make an order for examination of property or records or disclosure of evidence between the parties to occur before the next settlement conference;

              (i)  adjourn the settlement conference to pursue further settlement discussions; and

              (j)  make another order for the just, speedy and inexpensive resolution of the claim.

Different judge for trial

           (11)  A judge who presides over a settlement conference shall not hear the matter where it proceeds to trial, unless the parties agree to have that judge preside at the trial.

What happens at a settlement conference where a person who is not a judge presides?

           (12)  Where the person hearing the matter is not a judge, that person who has been designated by the chief provincial court judge

             (a)  may do one or more of the following things:

                      (i)  facilitate settlement of the matter,

                     (ii)  decide on issues that do not require evidence,

                    (iii)  set a trial date where a trial date is necessary,

                    (iv)  discuss evidence that shall be required and the procedure that shall be followed where a trial is necessary,

                     (v)  make recommendations to a judge to order a party to produce any information at the settlement conference or anything as evidence at the trial, and

                    (vi)  where damage to property is involved in the dispute, make recommendation to a judge to order a party to permit a person chosen by another party to examine the property damage;

             (b)  shall file a report with the court which may contain a question or issue arising for the decision of the court, or make a statement of the facts from which the court may draw inference it considers just; and

             (c)  may recommend to a judge that an order be made.

What happens to a report or recommendation provided under rule 10(12)?

           (13)  On receipt of the report or recommendation referred to in rule 10(12), the judge may

             (a)  adopt a report or recommendation in whole or in part;

             (b)  vary or reverse a report or recommendation;

             (c)  require a supplemental report;

             (d)  remit the report or any part of it for further consideration to the same or another person designated by the chief judge;

             (e)  decide a question or issue raised by the settlement conference or the evidence taken at the settlement conference, with or without additional evidence;

              (f)  order the entry of the judgment based on the report, recommendation or otherwise as he or she considers just, in accordance with rule 15; or

             (g)  enter judgment or make an order that he or she considers just, in accordance with rule 15.

Where a party does not comply with an order for disclosure of evidence

           (14)  Where a party does not disclose evidence as required by a judges order, a judge at the adjourned settlement conference or at the trial may do one or more of the following:

             (a)  grant an adjournment and order that the defaulting party pay all the reasonable expenses of the other party or parties incurred as a result of the adjournment;

             (b)  order the matter to proceed without permitting the defaulting party to produce the evidence at trial;

             (c)  dismiss the claim, counterclaim, reply or third party notice where the conduct of the defaulting party amounts to a refusal to comply with a judge’s order or to an abuse of the court’s process.

Where a judgment is entered

           (15)  Where judgment is entered at a settlement conference, rule 15 applies as though the judgment was entered following a trial.

Where a party does not attend

           (16)  A judge may dismiss a claim or enter a judgment or other appropriate order against a party who does not attend a settlement conference.

Notice of trial date

           (17)  Where a trial date is set at a settlement conference and a party is absent, the court shall serve a notice of the trial date on that party unless the judge orders otherwise.

Where a party does not comply with a settlement agreement

           (18)  Where either party does not comply with a settlement agreement other than a payment schedule, either party may apply to the court for an appropriate remedy and the court shall make an order that it considers just.

52/97 Rule 10; 84/09 Rule 6

RULE 11

CHANGING OR WITHDRAWING A STATEMENT OF CLAIM OR REPLY OR OTHER DOCUMENT

A filed document may be changed

             (1)  Anything in a statement of claim, reply or other document that has been filed by a party may be changed by that party

             (a)  without permission, before the settlement conference begins; and

             (b)  with the permission of a judge under rule 19(3), after the beginning of a settlement conference.

How to change a document

             (2)  All changes shall be underlined, initialled and dated on the revised document and, where there is an order authorizing the change, the document shall contain a reference to that order.

Filing and serving a revised document

             (3)  A party who changes a filed document shall

             (a)  file a copy of the revised document at the court; and

             (b)  before taking any other step in the claim, serve in the manner set out in rule 21, a copy of the revised document on each party to the claim and the time period for reply to a revised statement of claim shall be as set out in rule 5.

Claim or counterclaim may be withdrawn

             (4)  A party may withdraw a claim, counterclaim, reply or third party notice at any time.

Notice of withdrawal

             (5)  A party who withdraws a claim, counterclaim, reply or third party notice shall serve in the manner set out in rule 21, notice of the withdrawal on all parties who were served with the claim, counterclaim, reply or third party notice and file a copy of the notice with the court.

Effect of withdrawing

             (6)  A party who withdraws a claim, counterclaim, reply or third party notice may not proceed with it or file another notice with respect to the claim, counterclaim, reply or third party notice unless that party applies for an order using Form 14 and is granted that order.

52/97 Rule 11; 41/99 Rule 3

RULE 12

WITNESSES

How a witness is told to attend court

             (1)  To require a witness to attend court, a party shall

             (a)  complete a subpoena to a witness in Form 7; and

             (b)  serve in the manner set out in rule 21, a copy of the subpoena on the witness.

Travelling expenses

             (2)  At the time the subpoena is served, the party subpoenaing the witness shall offer the witness reasonable estimated travelling expenses and the required witness fee as set out in the Schedule.

Subpoena not always necessary

             (3)  Where a witness will attend court voluntarily, a subpoena is not necessary.

What a witness served with a subpoena shall do

             (4)  A person who is served with a subpoena to witness shall

             (a)  attend court at the time and place stated on the subpoena; and

             (b)  bring to court any records and other things required by the subpoena.

Subpoena may be cancelled

             (5)  A person who is served with a subpoena to witness may apply to a judge under rule 19(3) who may cancel the subpoena where

             (a)  the person is not needed as a witness; or

             (b)  it would be a hardship for the person to attend court as required by the subpoena.

Where a subpoena is cancelled

             (6)  A judge who cancels a subpoena to witness may make another order that the judge considers just, including an order changing the date of a trial or other hearing.

Where a witness does not obey a subpoena

             (7)  A judge may issue a warrant for the arrest of a witness who does not attend court as required by a subpoena to witness where the judge is satisfied that

             (a)  the subpoena was served on the witness;

             (b)  reasonable travelling expenses and the required witness fee were offered to the witness;

             (c)  no just cause is shown for the failure of the witness to attend; and

             (d)  justice requires the presence of the witness.

Cancellation of warrant

             (8)  Where a witness named in a warrant attends court voluntarily, the judge may cancel the warrant.

What the judge may do when witness appears

             (9)  Where a witness is brought to court under a warrant for arrest or attends voluntarily, and the witness’s evidence is still required, a judge may

             (a)  release the witness on conditions set by the judge;

             (b)  order the witness to be detained until his or her presence is no longer required; or

             (c)  make any other order the judge considers just.

52/97 Rule 12; 41/99 Rule 4

RULE 13

TRIAL

How evidence will be heard at a trial

             (1)  A judge may conduct a trial without complying with the formal rules of procedure and in doing so may

             (a)  ask the parties to explain their cases, to respond to each other and to call witnesses; and

             (b)  receive evidence in any other way the judge considers appropriate.

Evidence to be sworn

             (2)  All oral evidence shall be given under oath or affirmation.

Advance notice of expert evidence is required

             (3)  A party shall not call an expert to give evidence of the experts opinion unless

             (a)  that party serves, in the manner set out in rule 21, a summary of the experts evidence on all other parties at least 14 days before the expert is called to give evidence; or

             (b)  a judge grants permission.

Expert’s reports shall be given in advance

             (4)  Instead of calling an expert to give evidence, a party may introduce a report stating opinions of an expert, where

             (a)  the party serves in the manner set out in rule 21, a copy of the report on all other parties at least 14 days before the report is introduced; or

             (b)  a judge grants permission.

Expert’s qualifications

             (5)  A statement of qualifications in an experts report is proof that the expert has those qualifications unless there is evidence to the contrary.

Experts may be called for cross-examination

             (6)  A party receiving another party’s expert report may serve in the manner set out in rule 21, on the other party, at least 7 days before the trial date, a notice requiring the expert to attend the trial for cross-examination.

Cost of calling other party’s expert

             (7)  Where a judge determines that calling another party’s expert was unnecessary, the judge may order the party who required the expert to attend to pay the experts expenses.

Estimates

             (8)  Repair estimates and estimates of the value of property are not considered to be expert evidence, but shall be served in the manner set out in rule 21, on all other parties at least 14 days before trial unless a judge orders otherwise.

Where a defendant does not attend

             (9)  Where a defendant or third party does not attend the trial, the judge may

             (a)  allow the claim; and

             (b)  enter judgment or make another appropriate order against that defendant or third party.

Where a plaintiff does not attend

           (10)  Where a plaintiff does not attend the trial, the judge may dismiss the claim.

Judges decision after the trial

           (11)  The judge shall give a decision

             (a)  in court orally at the end of the trial or on a later date; or

             (b)  in writing.

Where the decision is given later

           (12)  Where a judges decision is to be given orally on a later date, the court shall notify the parties of the date.

When decision effective

           (13)  A judges written decision is effective on the date it is filed at the court.

52/97 Rule 13

RULE 14

OFFER TO SETTLE

Who can settle a claim?

             (1)  A party may offer to settle one or more claims by serving on the other party in the manner set out in rule 21, an offer to settle in Form 8, and by filing a copy with the court in a sealed envelope, marked, "OFFER TO SETTLE".

What the offer includes

             (2)  An offer to settle for an amount of money includes interest, expenses under rule 24 and expenses a party has been awarded from a prior hearing in the same action.

When an offer may be made

             (3)  An offer to settle may be filed up to 7 days before the trial date or at a later time where permitted by a judge under rule 19(6).

How a party accepts an offer

             (4)  The party to whom the offer to settle is made, may accept the offer by serving in the manner set out in rule 21, the acceptance of offer in Form 8 on the other party and by filing a copy with the court anytime before the trial date.

Judge may enter a judgment

             (5)  Where an acceptance of offer is filed within the time limited, a judge may enter a judgment in the terms of acceptance.

Where offer to settle rejected by plaintiff

             (6)  The trial judge may order a plaintiff to pay a penalty where the plaintiff does not accept the offer to settle and is awarded at trial, including interest and all expenses, the amount of the defendants offer or a lesser amount.

Where offer to settle rejected by defendant

             (7)  The trial judge may order a defendant to pay a penalty where the defendant does not accept the offer to settle and the plaintiff is awarded at trial, including interest and all expenses, the amount of the plaintiffs offer or a greater amount.

Amount of penalty

             (8)  A penalty given under rule 14(7) is in addition to any other expenses or penalties, and may be up to 20% of the amount of the offer to settle.

What the judge shall consider

             (9)  In determining the amount of a penalty, a judge shall consider

             (a)  the difference between the amount awarded at trial and the amount of the offer to settle;

             (b)  the interest of the parties in proceeding to trial to determine the credibility of a witness or point of law; and

             (c)  the time when the offer was made.

Disclosure to judge

           (10)  All offers to settle under this rule may be made available to the court, but shall not be disclosed to the trial judge until after the trial judge has given a final decision on the claim.

Counterclaims and third party claims

           (11)  This rule applies to claims, counterclaims and third party claims.

Multiple defendants

           (12)  Where several defendants are sued together, a plaintiff may not make an offer to settle except jointly to all defendants and a defendant may not make an offer to settle except jointly with all other defendants.

Multiple plaintiffs

           (13)  Where there is more than one plaintiff, a separate offer to settle may be made by or to a plaintiff.

Third party claims

           (14)  Where an offer to settle made by a third party is accepted by a defendant, money shall be paid into court by the third party and not paid directly to that defendant, and that money shall not be taken out of court without a judges order or consent of all parties.

Other offers to settle

           (15)  Where the time limited by this rule, or by a judges order, for offering and accepting a settlement has past, an offer to settle may still be made but rule 14(6) and (7) do not apply.

Failure to comply with accepted offer

           (16)  Where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may apply to a judge for a judgment in the terms of the accepted offer under rule 19(3).

Filing a notification of satisfaction

           (17)  A party whose claim has been satisfied may file a notification of satisfaction with the court.

Proof that claim has been satisfied

           (18)  A party, against whom a claim is made, who satisfies the claim may file a notification of satisfaction of the claim, together with proof that the claim has been satisfied, with the court.

52/97 Rule 14; 58/07 Rule 1

RULE 14.1

SATISFACTION PIECE

Filing of satisfaction piece

             A satisfaction piece, in a form acceptable to the court, indicating that a judgment has been satisfied may be filed

             (a)  by the creditor; or

             (b)  by the debtor upon proof of settlement of the debt.

84/09 Rule 7

RULE 15

PAYMENT OF THE JUDGMENT

Judgment

             (1)  Judgment shall be entered against a party, in favour of another party where

             (a)  the judge decides at a trial that one party shall pay money to the other party;

             (b)  one party admits all or part of a claim under rule 5 or 6, and the person making the claim has applied for a judgment;

             (c)  a default judgment is entered under rule 8; or

             (d)  one party has made an offer to settle under rule 14 and the person making the claim has applied under rule 14(16) for a judgment.

Registration of judgment

             (2)  Where a judge enters a judgment, the court shall register that judgment on the enforcement registry with the Office of the High Sheriff.

How may the judgment be collected?

             (3)  A judgment may be enforced

             (a)  by an order under these rules for payment, including an order that a judgment be paid in full; or

             (b)  under the Judgment Enforcement Act by contacting the Office of the High Sheriff.

No order under these rules without an enforcement registry report

             (4)  A judge shall not make an order to enforce a judgment under these rules unless that judge has received a report from the enforcement registry in respect to that debtor.

What if the enforcement registry report says that there is an instalment order against the debtor?

             (5)  Where a report from the enforcement registry says that an instalment order is in place in respect to a debtor, a judge shall not make an order under these rules to enforce a judgment in respect to that debtor, and a creditor may enforce his or her judgment under the Judgment Enforcement Act .

What if the enforcement registry report says there is no instalment order against the debtor?

             (6)  Where a report from the enforcement registry says that an instalment order is not in place against a debtor, a judge may make an order under these rules to enforce the judgment or the creditor may enforce his or her judgment under the Judgment Enforcement Act .

Debtor may make a proposal for a payment schedule

             (7)  Where judgment is entered and no instalment order is in place, the judge may, after judgment is entered, ask the debtor whether or not he or she requires time to pay, and where the debtor states that he or she requires time to pay, the debtor may propose a payment schedule.

Creditor to be consulted about debtor’s proposal

             (8)  Where a debtor makes a proposal to pay under rule 15(7), the judge shall ask the creditor whether or not the creditor agrees with the debtor’s proposal.

Where the creditor agrees with debtor’s proposal

             (9)  Where a creditor agrees with a debtor’s proposal, the judge may order a payment schedule requiring the debt to be paid by a set date or by instalments.

Where creditor does not agree with debtor’s proposal

           (10)  Where a creditor does not agree with a debtor’s proposal, the judge may

             (a)  order a payment hearing; or

             (b)  order a payment schedule.

If the debtor or creditor wants to stop all or part of the enforcement

           (11)  A debtor or creditor may apply to the Supreme Court for a stay of enforcement under section 148 of the Judgment Enforcement Act.

Judge may make some orders without a hearing

           (12)  The judge may without a hearing

             (a)  enter judgment in an amount agreed between the parties plus costs and expenses under rule 24 where

                      (i)  the defendant agrees to pay all or part of a claim on a reply, and

                     (ii)  the plaintiff consents; and

             (b)  where no installment order is in place

                      (i)  make an order establishing a payment schedule where the defendant proposes or requests a payment schedule in the reply and the plaintiff consents to the order, and

                     (ii)  make an order issuing a summons to a defendant to attend a payment hearing where a proposed payment schedule is not agreed to by the plaintiff.

Where a debtor does not obey a payment schedule or pay as ordered

           (13)  Where a debtor defaults on the payments under a payment schedule or an order to pay the judgment in full, the enforcement provisions of the Judgment Enforcement Act apply and the creditor should contact the Sheriff’s Office.

Where the decision is reserved

           (14)  Where a judgment is entered in the absence of the parties because the judge reserved the decision,

             (a)  the creditor may take any of the steps listed in rule 15(3); and

             (b)  the debtor may ask for a payment hearing under rule 16(9).

Collection after warrant for arrest ordered

           (15)  Where a judge issues a warrant for the arrest of a debtor or an officer, director or employee of a corporate debtor, the creditor may take any steps for the collection of the judgment as if a payment hearing was not outstanding.

52/97 Rule 15

RULE 16

PAYMENT HEARING

Purpose of a payment hearing

             (1)  The purpose of a payment hearing is to allow a judge to

             (a)  assess the debtors ability to pay; and

             (b)  consider whether a payment schedule should be ordered.

Parties may request a payment hearing

             (2)  A payment hearing shall be held where it is

             (a)  requested by the creditor under rule 16(3);

             (b)  requested by the debtor under rule 16(9); or

             (c)  ordered by the judge under rule 15(10).

How a creditor asks for a payment hearing

             (3)  To ask for a payment hearing, a creditor shall complete Form 11 following the instructions on the form, and file it at the court.

Where the debtor is a corporation

             (4)  Where the debtor is a corporation, an officer, director or employee of the corporation may be summoned to the payment hearing.

Where the debtor is a partnership

             (5)  Where the debtor is a partnership, a partner may be summoned to the payment hearing.

Service of the summons

             (6)  A person named in a summons to a payment hearing shall be served by the person requesting the hearing in the manner set out in rule 21 at least 5 days before the date of the payment hearing and proof of service shall be filed with the court by the person requesting the hearing at least 2 days before the date of the payment hearing.

Summons may be cancelled where wrong person summoned

             (7)  A person who is served with a summons to a payment hearing may apply to a judge under rule 19(6), and the judge may where he or she considers it necessary

             (a)  cancel the summons where the person is not the right person to provide information on behalf of the debtor; and

             (b)  issue a new summons to another person to provide the information on behalf of the debtor.

What a person shall bring

             (8)  A debtor or a person summoned may be required, either by a summons issued under rule 16(3) or by a judge when ordering a payment hearing, to bring to the payment hearing records and other things which relate to the subjects listed in rule 16(11).

Where a debtor asks for a payment hearing

             (9)  To ask for a payment hearing, a debtor shall complete a notice of payment hearing in Form 12 following the instructions on the form, and file it at the court.

Service of notice on creditor

           (10)  The debtor shall serve in the manner set out in rule 21 the notice on the creditor at least 5 days before the date of the payment hearing.

What happens at a payment hearing?

           (11)  At any payment hearing under these rules, evidence may be heard about any of the following:

             (a)  the income and assets of the debtor;

             (b)  the debts owed to and by the debtor;

             (c)  assets that the debtor has disposed of since the claim arose; and

             (d)  the means that the debtor has, or may have in the future, of paying the amount owed.

Judge may order a payment schedule

           (12)  After hearing the evidence and submissions by the parties, and after receiving a report from the enforcement registry which says there is no instalment order in place against the debtor, the judge may order a payment schedule specifying

             (a)  the date by which the debt shall be paid; or

             (b)  the amounts and dates of the instalments.

Where a creditor does not attend

           (13)  Where a creditor does not attend a payment hearing, the judge may hold the hearing, cancel it or postpone it.

Where someone summoned or ordered to attend does not attend

           (14)  Where a creditor asks, a judge may issue a warrant for the arrest of a person who does not attend a payment hearing and who was

             (a)  served with a summons to attend; or

             (b)  ordered in person by a judge to attend,

and just cause is not shown for the failure or refusal to attend.

Creditor may apply for payment hearing at another place

           (15)  The creditor may apply to the court to have a payment hearing at a court in another location from where the file is located where that court is nearest to where the debtor lives or carries on business or is temporarily employed.

52/97 Rule 16; 7/00 Rule 3; 84/09 Rule 8

RULE 17

WARRANT OF ARREST FOR NOT ATTENDING COURT

Peace officer shall bring arrested person to court

             (1)  A peace officer who arrests a person under a warrant of arrest issued under rule 12(7) or 16(14) shall promptly bring the person to court.

Cancellation of warrant

             (2)  Where a person named in a warrant attends court voluntarily, the warrant is cancelled.

How long the warrant is in effect

             (3)  A warrant of arrest remains in force for 2 years from the date a judge issues the warrant, but at the end of that period it expires and a person shall not be arrested under it unless the warrant is renewed.

52/97 Rule 17

RULE 18

WHERE A WARRANT OF IMPRISONMENT IS ISSUED

Imprisonment

             (1)  Where a warrant of imprisonment is issued under rule 23(1), a peace officer may arrest the person named in the warrant.

How long the warrant is in effect

             (2)  A warrant of imprisonment remains in force for 2 years from the date of its issue, but at the end of that period it expires and a person shall not be imprisoned under it.

52/97 Rule 18

RULE 19

APPLICATIONS TO THE COURT

Consent orders

             (1)  The court may make a consent order where one of the parties

             (a)  files an application that contains the particulars of the order requested; and

             (b)  satisfies the court that all parties are consenting.

Applications that may be granted without a hearing

             (2)  Without a hearing, the court may make

             (a)  a consent order under 19(1);

             (b)  an order renewing a statement of claim or a third party notice under rules 4(2) and 7(6);

             (c)  an order changing the date of the settlement conference under rule 10(8);

             (d)  an order permitting service of a statement of claim outside the province under rule 4(3);

             (e)  an order permitting another method of service under rule 4(6);

              (f)  an order transferring the matter to another court under rule 5(6);

             (g)  an order for appointment of a next friend under rule 20(16);

             (h)  an order changing the date of the trial under rule 6(8) or 12(6);

              (i)  an order permitting a third party claim to be made under rule 7(1);

              (j)  a default judgment where a reply to a counterclaim or third party notice is not filed under rule 8(2);

             (k)  an order permitting a late reply to be filed under rule 8(8);

              (l)  an order cancelling a subpoena to witness under rule 12(5);

            (m)  an order permitting the changing of a document under rule 11(1);

             (n)  a review of a decision of a person designated by the Chief Provincial Court Judge to hear a settlement conference under rule 20(20); and

              (i)  any other order that the court is authorized to make without notice to another party.

How to apply for specific orders

             (3)  To apply for an order listed in rule 19(2), a party shall complete an application in Form 14 following the instructions on the form, and file it at the court.

What the judge may do

             (4)  The judge may make the order or direct the applicant to appear before a judge to explain why the order should be made.

Applications that require a hearing

             (5)  After a hearing, a judge may make

             (a)  an order changing or cancelling an order made in the absence of a party under rule 20(1);

             (b)  an order cancelling a default judgment or dismissal order under rule 20(2), and where the application is granted the judge may order payment of reasonable expenses of the other party related to the cancellation;

             (c)  an order changing or cancelling the terms of a payment schedule under rule 20(3);

             (d)  an order extending or shortening a time limit under rule 20(11);

             (e)  an order for failing to obey a rule under rule 20(12); and

              (f)  any other order that a judge has the power to make and notice of which is served in the manner set out in rule 21, on another party.

How to apply to the court for an order

             (6)  To apply for an order listed in rule 19(5), a party shall complete an application in Form 14 following the instruction on the form, and file it at the court where the claim was made unless the court allows the application to be filed at another court under rule 19(7).

Application may be filed at another court

             (7)  A court may allow an application under rule 19(6), to be filed at another court where

             (a)  all the parties agree; or

             (b)  the court is satisfied that the application is urgent.

Applicant shall serve notice of application

             (8)  At least 7 days before the date set for hearing an application under rule 19, an applicant shall serve, in the manner set out in rule 21, a copy of his or her application, and the affidavit where required under rule 20(2), on each party that would be affected by the order requested, and service of notice is not required where the application is for a default order where a reply to a third party notice has not been filed.

Service not required in urgent cases

             (9)  Where satisfied that an application is urgent, the court may allow an application to be made under rule 19(6) even though the other parties have not been served but a satisfactory attempt to give some form of notice has been made.

Where the application will be heard

           (10)  An application under rule 19(7) shall be heard at the court where the court file is located, except where

             (a)  all the parties agree to have the application heard at another location; or

             (b)  the court is satisfied that the application is urgent.

52/97 Rule 19; 41/99 Rule 5

RULE 20

GENERAL

Changing or cancelling orders made in the absence of a party other than dismissal orders or default judgments

             (1)  A judge may change or cancel an order made in the absence of a party other than dismissal orders or default judgments where

             (a)  the party applies under rule 19(6) within a reasonable time; and

             (b)  there is a good reason for changing or cancelling the order.

Cancelling dismissal orders or default judgments

             (2)  A judge may cancel a dismissal order or default judgment if

             (a)  the order or judgment was made without evidence having been taken; and

             (b)  the party applies under rule 19(6) and attaches to the application an affidavit containing

                      (i)  the reason the party did not file a reply or attend the settlement conference or trial,

                     (ii)  the reason for a delay where there has been delay in filing the application, and

                    (iii)  the facts that support the claim or the defence.

Terms of payment schedule may be changed or cancelled

             (3)  The terms of a payment schedule may be changed or cancelled where an installment order has not been issued, by applying to a judge under rule 19(6) and the judge may make an order that he or she considers fair.

Judge may make orders subject to conditions

             (4)  In making an order under these rules, a judge may impose a condition or give a direction that the judge considers fair.

Judge may cancel, postpone or adjourn trials and hearings

             (5)  A judge may cancel, postpone or adjourn a settlement conference, trial or hearing

             (a)  to a specified date;

             (b)  to a date to be set by the court; or

             (c)  without setting a date.

Judge may change place of trial or hearing

             (6)  A judge may direct that a trial or hearing that is set for one place be held at another place.

Chief judge may change place of conferences and trials

             (7)  The chief judge may order that settlement conferences and trials set at one place be heard at another place.

When orders take effect

             (8)  An order takes effect on the day it was made unless otherwise ordered by the judge who made the order.

First and last days are not counted

             (9)  In calculating time under these rules or an order, the number of days between 2 events is counted by excluding the days on which those events happen.

Where the last day is a holiday

           (10)  Where the last day of a period of time for filing or serving a document or doing any other thing under these rules or an order, falls on a Saturday, Sunday or a day when the court is closed for a holiday, the time ends on the next day that the court is open.

Judge may extend or shorten times

           (11)  A judge may extend or shorten a time limit set by these rules or by any order of the court, on the terms that the judge considers fair.

Where a party does not obey the rules

           (12)  A party who believes that another party has not obeyed these rules may apply to a judge under rule 19(6) or at a hearing, and the judge may make an order or give a direction that the judge considers fair.

Correction of orders

           (13)  A judge may, at the request of either party, correct an accidental slip or omission in an order and may add provisions on expenses, or anything else that was not but should have been adjudicated on.

Faxed documents

           (14)  A person may file a document which is transmitted to the court by a facsimile machine with the permission of the court.

Rules of Supreme Court, 1986

           (15)  Rule 13 of the Rules of Supreme Court, 1986 dealing with Interpleader applies to proceedings under the Small Claims Act .

Settlements involving young persons

           (16)  Where a plaintiff or defendant is a person who is under 19 years of age, a consent of next friend form shall be obtained from the court, completed and filed with the court before a matter relating to that person can proceed.

What if there is no consent filed to allow a person under 19 years to defend an action?

           (17)  Where there is no consent filed to allow a person under 19 years of age to defend an action the plaintiff may apply to the court in Form 14 requesting that the court appoint the parent or guardian or some other person to act as next friend for the defendant.

Who signs court documents?

           (18)  Unless it is stated otherwise, where a document is required to be signed by the court it may be signed by an officer of the court, who is by virtue of the position a Justice of the Peace.

How the parties may be represented

           (19)  Rep. by 41/99 Rule 6(2)

Party may appeal the decision made at a settlement conference of a person who is not a judge

           (20)  Where a party is dissatisfied with the decision of a person designated by the Chief Provincial Court Judge to hear a matter under rule 10(12) the party may apply under rule 19(6) to a judge for a review of the decision.

What the judge may do

           (21)  After hearing those parties who attend, the judge may confirm or change the decision of the person designated to hear the matter under rule 10(12).

52/97 Rule 20; 41/99 Rule 6; 84/09 Rule 9

RULE 20.1

ELECTRONIC FILING

Rule prevails in the event of conflict

             (1)  In the event of a conflict between this rule and another rule this rule applies.

Filing document in court

             (2)  An electronic document shall be filed with the appropriate court as set out in rule 3(2).

Remote access client application

             (3)  A person shall complete a remote access client application to become a registered user for remote access to the court and that application must be approved by the court prior to a person filing an electronic document with the court.

Remote access agreement

             (4)  A remote access client application, when accepted by the court, shall constitute an agreement between the registered user and the court for remote access to the court.

Payment of applicable fees

             (5)  A registered user may electronically transmit a document to the appropriate court for filing when the document is accompanied by payment of the applicable filing fees or when prior arrangements are made with the court for payment of the applicable fees.

Original document

             (6)  A document that has been transmitted for filing electronically under this rule may be treated by the court for all purposes as an original document.

Certain forms may be filed electronically

             (7)  Only the following documents may be completed and filed electronically under this rule:

             (a)  Form 1 - Statement of Claim;

             (b)  Form 2 - Reply;

             (c)  Form 4 - Certificate of Service;

             (d)  Form 5 - Application for Default Judgment;

             (e)  Form 10 - Judgment;

              (f)  Form 14 - Application to a Judge;

             (g)  Form 16 - Notice of Withdrawal;

             (h)  Affidavit under rule 20.1(9);

              (i)  Electronic Filing Statement under rule 20.1(9);

              (j)  Judgment Registration Form (Sheriffs Office Form); and

             (k)  Satisfaction Piece, in a form acceptable to the court, under rule 14.1.

Attachments shall be converted to PDF

             (8)  When completing forms to be filed electronically, required attachments to the forms shall be uploaded as attachments and converted to Portable Document Format (PDF).

Affidavits

             (9)  An affidavit may be submitted for filing electronically where

             (a)  it clearly identifies the person signing, and

             (b)  it is accompanied by an Electronic Filing Statement in a form acceptable to the court completed by the counsel acting for the person on whose behalf that document is being filed or, where that person is unrepresented, by that person.

Retaining documents

           (10)  A person who submits an affidavit for filing under rule 20.1(9) shall

             (a)  keep the original paper version of the document until the earliest of

                      (i)  the date on which the proceeding, including appeals, is finally disposed of,

                     (ii)  the date on which the appeal period for that proceeding has expired and no appeals of the proceeding have been brought within that period, and

                    (iii)  the date on which the court clerk requests that the original paper version be filed, and

             (b)  where a request is made under paragraph (a)(iii), file the original paper version immediately after that request is made.

Filing of documents

           (11)  Where an electronic document is accepted for filing by the clerk, the document is considered to have been filed,

             (a)  where the document is received by the court at or before 4 p.m. on a day on which the court is open for business, on the day of its receipt, or

             (b)  where the document is not received by the court before 4 p.m. , on the next day on which the court is open for business.

Electronic authentication considered a signature

           (12)  Notwithstanding rule 20.1(9), a document is considered to have been originally signed where it has been authenticated in the manner contemplated by the remote access client application.

Conversion of documents

           (13)  Where a document in paper form is filed with the court, the clerk may convert the document into electronic form by

             (a)  storing the conversion in a computer or in another electronic system that the clerk considers appropriate, and

             (b)  retaining the paper form of the document.

Changing an electronic document

           (14)  Where the original documents were filed electronically in accordance with this rule, there is no requirement to initial changes made under rule 11.

Public access to documents filed electronically

           (15)  Where a document has been filed in accordance with this rule, a person entitled to view and obtain a copy of the document may, on payment of the proper fee,

             (a)  obtain from the court a paper copy of the document,

             (b)  where the court has provided a public access computer terminal, view the document on that terminal, or

             (c)  where the person is a registered user, access the document in accordance with the terms of the remote access client application.

Electronic Service of documents

           (16)  A document that is required to be served on a person may, where it is an electronic document, be served electronically on that person

             (a)  where the person has provided an email address for service, by emailing it to that person's email address for service; and

             (b)  where the solicitor for that person has provided an email address for service, by emailing it to that solicitor's email address for service.

When service of email is effective

           (17)  A document transmitted by email in accordance with rule 20.1(16) is considered to have been served

             (a)  where the document is transmitted before 4 p.m. , on the day of the transmission, or

             (b)  where the document is transmitted after 4 p.m. or on a Saturday, Sunday or holiday, on the next day that is not a Saturday, Sunday or a holiday,.

Court may give notification by email

           (18)  The court may use email to provide notification on a matter to registered users.

Where document does not reach a person

           (19)  Notwithstanding a document has been delivered in accordance with rule 20.1(16), a person may on an application

             (a)  to set aside a default judgment;

             (b)  for extension of time; or

             (c)  in support of a request for an adjournment,

provide evidence that the document

             (d)  did not come to the person’s notice;

             (e)  did come to the person’s notice later than when it was delivered or effectively delivered; or

              (f)  was incomplete or illegible.

84/09 Rule 10

RULE 21

RULES ABOUT SERVICE OF DOCUMENTS

How to serve an individual

             (1)  Where a person to be served is an individual over 19 years of age, the document shall be served

             (a)  by leaving a copy of it with the defendant; or

             (b)  by mailing a copy to the defendant at his or her last known address and obtaining a signed document acknowledging receipt.

How to serve a corporation

             (2)  Where the defendant is a corporation incorporated or continued under the Corporations Act , the plaintiff shall file with the document a printout of a corporation search showing the most recent address of the registered office of the corporation on file with the Registrar of Companies and the document shall be served by

             (a)  mailing a copy of it to the registered office of the corporation and obtaining a signed document acknowledging receipt; or

             (b)  leaving a copy of it

                      (i)  at the registered office of the corporation,

                     (ii)  at the place of business of the corporation, with a receptionist or a person who appears to manage or control the corporation’s business, or

                    (iii)  with a director, officer, liquidator, trustee in bankruptcy or receiver manager of the corporation.

How to serve an extraprovincial company

             (3)  Where the defendant is an extraprovincial corporation, a document shall be served

             (a)  by mailing a copy of it to the attorney of the corporation appointed under the Corporations Act and obtaining a signed document acknowledging receipt;

             (b)  by leaving a copy of it with the attorney; or

             (c)  where the attorney has not been appointed, by following rule 21(2).

How to serve a partnership

             (4)  Where a defendant is a partnership, a document shall be served by

             (a)  mailing a copy of it to a partner and obtaining a signed document acknowledging receipt; or

             (b)  by leaving a copy of it,

                      (i)  with a partner,

                     (ii)  at a place of business of the partnership, with a person who appears to manage or control the partnership business there, or

                    (iii)  with a receptionist who works at a place of business of the partnership.

How to serve a municipality

             (5)  Where a defendant is a municipality or local service district, the document shall be served by

             (a)  mailing a copy of it to the office of the municipality or local service district and obtaining a signed document acknowledging receipt; or

             (b)  giving a copy to the town manager, manager of the local service district or someone acting in a similar capacity.

How to serve a young person

             (6)  Where a defendant is under 19 years of age, a document shall be served by

             (a)  mailing a copy of the document to his or her last known address and to the next friend, and obtaining a signed document acknowledging receipt; or

             (b)  by personal service on the defendant and the next friend of the defendant under rule 20(16).

How to serve an unincorporated association and trade union

             (7)  Where a defendant is an unincorporated association, including a trade union, a document shall be served

             (a)  by mailing a copy of it to the registered office of the association and obtaining a signed document acknowledging receipt; or

             (b)  by leaving a copy of it with an officer of the association, or in the case of a trade union, with a business agent.

Change of address

             (8)  A party shall promptly notify, in writing, the court and all other parties to a claim of a change in that party’s address.

Address for service

             (9)  A party shall, on the statement of claim or reply, give the party’s address for service which shall be

             (a)  the party’s residence, place of business or solicitors office, where the party is not incorporated and not a partnership; or

             (b)  its registered office, place of business or solicitors office where the party is incorporated or is a partnership.

How to serve the Crown

           (10)  Where the defendant is Her Majesty in right of Newfoundland and Labrador you must comply with the Proceedings Against the Crown Act and documents must be served on the Minister of Justice or the Deputy Minister of Justice.

7/00 Rule 4; 31/01 Rule 1; 2001 c42 s45

RULE 22

PROVING SERVICE

Written proof of service

             (1)  Service of a document may be proved by filing at the court any or all of the following:

             (a)  for personal service, a certificate of service in Form 4 with a copy of the document attached;

             (b)  for service by mail, a certificate of service in Form 4 accompanied by

                      (i)  a signed document acknowledging receipt, and

                     (ii)  a copy of the document that was served; or

             (c)  for personal service on a lawyer or articled clerk, a copy of the document signed by the lawyer or articled clerk or by a partner or employee of the firm.

Oral proof of service

             (2)  Instead of requiring proof of service under rule 22(1), a judge may allow a person to prove by sworn oral evidence that a person has personally served a document.

52/97 Rule 22; 7/00 Rule 5; 31/01 Rule 2

RULE 23

CONTEMPT

Consequences of refusing to comply or failure to attend at a hearing

             (1)  Where a person

             (a)  refuses to be sworn, affirm or answer a question;

             (b)  refuses to produce a record or other evidence;

             (c)  does not obey a direction or an order of the judge; or

             (d)  fails to attend court when summoned or ordered to do so and does not provide adequate reasons for failing to attend

the judge may issue a warrant requiring the person to be imprisoned for a specified period of not more than 3 days.

Where the claimant or applicant refuses to comply

             (2)  Where a person who does anything referred to in rule 23(1) is

             (a)  the plaintiff or applicant;

             (b)  an officer, director or employee who is an authorized representative of the plaintiff or applicant;

             (c)  a partner or a manager of a partnership that is the claimant or applicant; or

             (d)  an agent of the plaintiff or applicant,

the judge may also dismiss the claim or application.

Where the defendant or third party refuses to comply

             (3)  Where a person who does a thing referred to in rule 23(1) is

             (a)  the defendant or a third party;

             (b)  an officer, director or employee who is an authorized representative of the defendant or a third party;

             (c)  a partner or a manager of a partnership that is the defendant or third party; or

             (d)  an agent of the defendant or third party,

the judge may also continue with the proceeding as where no reply had been filed.

Release from imprisonment for contempt

             (4)  Before the expiration of a sentence imposed under rule 23(1), a person imprisoned may request to be brought before the sentencing judge to comply with the provisions of the rules, and where the judge is unavailable a person may apply to the court to be released upon conditions until he or she can appear before the sentencing judge.

52/97 Rule 23

RULE 24

COSTS, FEES AND EXPENSES

Who pays to issue and serve court documents?

             (1)  The fees for issuing documents and costs for service shall be paid by the party preparing and serving them, however the court may allow a party to later recover those amounts.

What amount of costs and fees can be recovered?

             (2)  The court may permit a party to recover costs where the party provides receipts for costs claimed, and those costs may include the costs of serving documents as set out in the Schedule, but a party cannot recover more than 10% of the amount of his or her claim, unless a judge orders otherwise.

How are costs and fees determined?

             (3)  The costs and fees a party can recover are limited to the amounts that are set out in the Schedule unless a judge orders otherwise.

Compensation for unnecessary expenses

             (4)  A judge may order a party or witness whose conduct causes another party or witness to incur expenses to pay all or part of these expenses.

52/97 Rule 24

RULE 25

USE OF FORMS

Forms

             (1)  The forms referred to throughout these rules may be obtained from the court, or electronically through the website of the Provincial Court of Newfoundland and Labrador , and shall be used in accordance with these rules and the instructions on the forms.

Court may refuse to accept improper forms

             (2)  A court may refuse to accept a document for filing where it is

             (a)  not in the form required by these rules; or

             (b)  not completed according to the instructions on that form.

52/97 Rule 25; 51/03 Rule 1

RULE 26

REPEAL

             The Small Claims Rules , Consolidated Newfoundland Regulation 1167/96, are repealed.

52/97 Rule 26

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SCHEDULE

FEES AND COSTS

             The fees and costs, other than filing fees, payable to the clerk of the court are as follows:

             (a)  for each search, $10;

             (b)  for each certification after the initial filing and certification of one copy, $10;

             (c)  for photocopies, $0.25 a page;

             (d)  for CD copies of recorded proceedings, $20 a copy; and

             (e)  for a transcript of proceedings, $3 a page.

             The fees and costs which are payable to the clerk of the court and which may be payable as between parties are:

             (a)  for issuing a statement of claim, for claims $500 or over, $100 and for claims under $500, $50;

             (b)  for an application to reopen a default judgment, $50;

             (c)  to issue a certificate of judgment or an order, $10;

             (d)  to issue a summons to a payment hearing,

                      (i)  once every 6 months, $10, or

                     (ii)  more often than every 6 months, $25;

             (e)  for each search, $10;

              (f)  [Rep. by 58/07 Rule 2]

             (g)  [Rep. by 58/07 Rule 2]

             (h)  for service of each civil document by a private process server or by registered mail the actual costs to a maximum of $40;

              (i)  for conducting a search of any registry maintained by the government the actual cost to the maximum of $40;

              (j)  the fees payable to a witness

                      (i)  for attendance, $4 a day,

                     (ii)  for a witness declared by the court to be an expert witness, a maximum of $100 a day, and

                    (iii)  subject to subparagraph (i), an allowance for travel by motor vehicle per kilometre for each kilometre necessarily travelled from the residence to the court and return, $0.25;

             (k)  if, in a judge's discretion, public transportation can be used on a timely basis, a witness may not be allowed the amount prescribed in subparagraph (j)(iii) but may be entitled to the fare for travelling to and from the place of the trial by public transportation;

              (l)  on any proceeding, payment of fees and costs in addition to those specified in paragraphs (a) to (k) may be awarded, in the judge's discretion, in an amount not exceeding $300; and

            (m)  with respect to a default judgment entered by the court under rule 8, the fees and costs shall be the actual fees and costs in an amount not exceeding the following:

                      (i)  for issuing a statement of claim, for claims $500 or over, $100 and for claims under $500, $50,

                     (ii)  fee for service for a civil claim by a private process server or by registered mail the actual cost to a maximum of $40,

                    (iii)  fee to conduct a search of any registry maintained by the province shall be the actual cost to a maximum of $40,

                    (iv)  to issue a summons to a payment hearing,

                            (A)  once every 6 months, $10, or

                            (B)  more often than every 6 months, $25,

                     (v)  to issue a certificate of judgment or an order, $10.

52/97 Sch; 34/04 Rule 1; 58/07 Rule 2