Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
Short title
1. This
Act may be cited as the Court of Appeal
Act.
Definitions
2. In
this Act
(a) "affidavit" includes a solemn
declaration, or statutory declaration, and an agreed statement of facts;
(b) "Chief Executive Officer" means the
Chief Executive Officer appointed under section 59.1 of the Judicature Act;
(c) "Chief Justice" means the Chief
Justice of Newfoundland and Labrador;
(d) "court" means, unless the context
indicates otherwise, the Court of Appeal of Newfoundland
and Labrador referred to in section 3 or a
judge or the judges of that court;
(e) "judge" means a judge of the court;
(f) "judgment" means the disposition of
a proceeding by the court and in the case of a panel of judges, the disposition
by a majority of those judges;
(g) "minister" means the minister
appointed under the Executive Council Act
to administer this Act;
(h) "oath" includes solemn affirmation
and statutory declaration;
(i) "order" means
(i) an order of the court stating the judgment of
the court,
(ii) an order of the court made in the exercise of
its jurisdiction under section 6, and
(iii) where the context requires, an order of the
Supreme Court;
(j) "party" means a person served with
notice of, or entitled to attend a proceeding, even if that person is not named
in the record;
(k) "proceeding" means
(i) a civil or criminal appeal,
(ii) a reference,
(iii) any matter brought to the court under an Act
of the Legislature or Parliament of Canada or the rules, or
(iv) an application respecting a matter referred to
in subparagraphs (i) to (iii);
(l) "reference" means a reference to the
court under section 24;
(m) "registry" means the registry of the
court;
(n) "rules" means the rules made under section 38 and includes
the forms in those rules; and
(o) "Supreme Court" means the Supreme
Court of Newfoundland and Labrador as
continued in the Judicature Act.
PART I
THE COURT
Continuation of
court
3. The
appeal division referred to as the Court of Appeal in Part I of the Judicature Act as it existed before the
coming into force of this Act is continued as a superior court of civil and
criminal jurisdiction to be called the Court of Appeal of Newfoundland
and Labrador.
Court
4. (1) The court consists of
the following:
(a) the Chief Justice, who shall also be the Chief
Justice of the court;
(b) 5 other judges, who shall be called Justices of
Appeal;
(c) any former Chief Justice who has elected under
section 13 to continue as a puisne judge for so long as he or she continues;
and
(d) as many judges who have elected supernumerary
status under section 12 as are in office.
(2) Subject to the rules, the court shall sit in
the City of St. John's and may sit in other locations within the province at the places and
times that the Chief Justice directs.
(3) Each judge of the court shall maintain his or
her principal residence in the City of St.
John's or within an area of 50
kilometres by road from that city.
Chief Justice
5. Nothing
in this Act derogates from the powers inherent in the Office of the Chief
Justice.
PART II
JURISDICTION AND POWERS OF THE COURT
Appellate jurisdiction
6. (1) Subject to section
7 and the rules made under section 38, an appeal
lies to the court
(a) from an order of the Supreme Court or an order
of a judge of the Supreme Court; and
(b) in a proceeding where jurisdiction is given to
it under an Act of the Legislature or the Parliament of Canada.
(2) Where another Act of the Legislature or the
Parliament of Canada provides that there is no appeal, or a limited right of
appeal, from an order referred to in subsection (1), that Act prevails.
(3) The court shall have and exercise appellate
jurisdiction, with the original jurisdiction that may be necessary or
incidental to the determining of any proceeding before the court, with
appellate jurisdiction in civil and criminal proceedings, and jurisdiction and
power to hear and determine appeals respecting an order or decision of a judge
of the Supreme Court.
Jurisdiction generally
7. (1) For the hearing and determination
of a proceeding, and the amendment, execution and enforcement of an order, and
for the purpose of every other authority expressly or implicitly given to the
court, by this Act or another Act of the Legislature or the Parliament of Canada,
the court has the power, authority and jurisdiction vested in the appeal
division referred to as the Court of Appeal in Part I of the Judicature Act as it existed before the
coming into force of this Act, including that power, authority and jurisdiction
conferred
(a) by the Imperial Statute passed in the 5th year
of the reign of His late Majesty King George the 4th, entitled "An Act for the better administration of
justice in Newfoundland, and for other purposes";
(b) by the Royal Charter or Letters Patent under
the Great Seal, issued by virtue of the Imperial Statute, dated September 19th,
1825, in the 6th year of His late Majesty's reign; and
(c) by a law in force in the province.
(2) The inherent jurisdiction of the appeal
division referred to as the Court of Appeal in Part I of the Judicature Act as it existed before the
coming into force of this Act is continued in the court and is unaffected by the coming into force of
this Act.
(3) The court has all the inherent powers of a
superior court at common law.
Powers
of court
8. (1) The court may give any judgment which ought to have been pronounced,
and may make further or other orders that it considers just.
(2) The powers of the court include the following:
(a) the court may draw inferences of fact not
inconsistent with any finding of fact that is not set aside and, if satisfied
that there is before it all the material necessary for finally determining the
matters in controversy, or any of them, or for awarding any relief sought, may
give judgment accordingly;
(b) notwithstanding paragraph (a), if the court is
of the opinion that there is not sufficient material before it to enable it to
give judgment, the court may direct the appeal to stand over for further
consideration, and may direct that those issues or questions of fact be tried
and determined, and those accounts be taken, and those inquiries be made, as
are considered necessary to enable it, on those further considerations, to
dispose finally of the matters in controversy;
(c) the court may, in its discretion, receive
further evidence upon questions of fact by oral examination in court, by affidavit,
or by deposition taken before an examiner or a commissioner; and
(d) where judgment has been given, a judge may, on
terms the judge considers appropriate, order that proceedings, including
execution, in the cause or matter from which the appeal was taken be stayed in
whole or in part.
(3) The powers conferred by subsection (2) may be
exercised
(a) notwithstanding that the appeal is as to part
only of the judgment, order, decision, or verdict; and
(b) in favour of all or any of the parties,
although they have not appealed.
Further powers
9. For
all the purposes of, and incidental to, the hearing and determination of any
cause or matter, and the amendment, execution, and enforcement, of any judgment
or order, and for the purpose of every other authority expressly or impliedly given to it by this Act, the
court has the power, authority, and jurisdiction, vested in the court appealed
from.
PART III
JUDGES
Precedence of
judges
10. The
judges of the court and Supreme Court have rank, precedence and seniority in
the following order:
(a) the Chief Justice;
(b) the Chief Justice of the Supreme Court;
(c) the Associate Chief Justice of the Supreme
Court;
(d) the judges of the court in the order of their
seniority of appointment to the court; and
(d) the judges of the Supreme Court in the order
of their seniority of appointment to the Supreme Court.
Powers of the
Chief Justice
11. Where
there is a vacancy in the office of the Chief Justice or the Chief Justice
(a) is absent from the province;
(b) is unable to act; or
(c) requests it,
his or her powers shall be exercised by
the next senior judge of the court who is able to act in the place of the Chief
Justice.
Supernumerary
judges
12. (1) For
each office of judge established under section 4, there is an additional office of
supernumerary judge, which a judge may elect to hold upon compliance with the
Judges Act (Canada) and upon meeting the qualifications required under that
Act.
(2) A judge who elects to hold the office of
supernumerary judge shall continue to be called a Justice of Appeal.
(3) Subsection 4(3)
does not apply to a judge who elects to hold the office of supernumerary judge.
Additional judge
13. For
the purpose of section 32 of the Judges Act (Canada), there shall be
established, for the Office of Chief Justice of Newfoundland and Labrador an
additional office of judge as is from time to time required, to be held by a
Chief Justice who has elected under the Judges Act (Canada) to perform
only the duties of a judge.
Oaths
14. (1) The
Chief Justice and every other judge shall, before entering upon the duties of
the office of judge, take and sign the Oath of Allegiance and the Judicial Oath
referred to in the Oaths of Office Act.
(2) The oaths referred to in subsection (1) shall
be administered by a judge.
Quorum
15. (1) Three
judges constitute a quorum of the court for the purpose of hearing an appeal.
(2) The judgment of the
majority of the court sitting as a quorum is the judgment of the court.
(3) The
death, withdrawal, resignation, removal or inability to act of a judge after
the beginning of a hearing shall not affect the jurisdiction of the court if
the proceeding is finally disposed of by not fewer than 2 judges, in which case
their judgment shall have the same effect as if made by the whole court.
Single judge
16. In
a proceeding pending in the court, an application incidental to it, not
including the final determination of the appeal, may be heard and disposed of
by a single judge of the court.
Ineligibility of judge
17. A
judge is ineligible to sit on the hearing
of an appeal from a judgment or order made by that judge.
Transfer of judge
18. Where
a judge of the court is unable to sit or take part in consequence of section 17, or from illness or other reason, or in case of a
vacancy in the court, the Chief Justice of the Supreme Court shall upon the
request of the Chief Justice appoint a judge of the Supreme Court to sit and
act in the place of the other judge, or in the place of a judge whose office
has become vacant, and it is the duty of a judge so appointed to attend and,
while so sitting and acting, that judge has all the jurisdiction, power and
authority of a judge of the court.
Judges of Supreme
Court
19. A
judge of the Supreme Court is by virtue of the office a judge of the court
where that judge has been appointed under section 18
for the purpose of hearing a proceeding and while so acting has in all respects
equal jurisdiction, power and authority.
Judge ceases to
hold office
20. A
judge who ceases to hold office may, within 6 months after ceasing to hold
office, give judgment in a proceeding previously heard and completed before
that judge as if that judge had not ceased to hold office.
Vacancy
21. A
vacancy in the court does not impair the court in the exercise of its powers.
Council of judges
22. A
council of judges may meet at the call of the Chief Justice, who shall be the
chairperson, and at other times at the written request of 2 judges to the
chairperson for the purpose of considering the operations of this Act and the
rules, and the other matters that the chairperson or one of the judges
considers appropriate.
Conferences
23. The Chief Justice may require a judge to
attend a meeting, conference or seminar to be held for a purpose relating to
the administration of justice.
PART IV
REFERENCE
Reference
24. The Lieutenant-Governor in
Council may refer a matter to the court and upon the reference the court shall
hear and determine that matter.
Certification of opinion
25. (1) The
court shall certify its opinion on a reference to the Lieutenant-Governor in
Council together with its judgment.
(2) The judgment given under subsection (1) shall
be given in the same manner as if it were a judgment or order of the court
given in an ordinary proceeding.
(3) A judge who differs from the opinion of the
majority on a reference shall also certify his or her opinion.
(4) The judgment of the court on a reference is
considered to be an order of the court and an appeal lies from a judgment on a
reference as from a judgment in a proceeding.
Notice to Attorneys General
26. Where a reference
relates to the constitutionality of an Act or a provision of an Act, the
Attorney General of Canada and the Attorney General of each province shall be
notified of the hearing in order that they may be heard.
Reference under agreement
27. (1) Where
a reference relates to matters arising under an agreement entered into between
the Government of Canada and the government of the province that provides for a
reference to the court, the Attorney General of Canada and the Attorney General
of another province that has entered into a similar agreement may appear before
the court and be heard as a party to the hearing of the reference.
(2) The form, terms and other matters relating to
a reference under subsection (1) shall be as set out in the agreement, and in
the absence of such provision shall be as the parties to the agreement agree.
(3) If the parties have not provided for the form,
terms and other matters relating to the reference, or have not agreed to them,
they shall be determined by the Chief Justice.
Notice to interested persons
28. The
court may direct that a person interested, or a person representing a class
that is interested, shall be notified of a reference and upon the notification
the person has the right to be heard on the hearing of the reference.
Appointment of counsel
29. Where
a person or class of persons affected by a reference are not represented by
counsel, the court may appoint counsel to represent the person or class and the
reasonable expenses occasioned shall be paid subject to the counsels rates and
reasonable expenses being agreed upon with the Attorney General.
Evidence
30. The
court may have the evidence taken that it requires upon a matter raised in a
reference if provision is made in the reference for the taking of the evidence.
Procedure
31. The
court may determine the procedure in a reference but in the absence of a
determination the procedure shall be governed by the rules of procedure of the
Supreme Court of Canada upon references to that court.
PART V
THE COURT GENERALLY
Title of
documents
32. All
documents, affidavits, notices and other papers and documents issued out of, or
used in, the court are to be entitled "In the Court of Appeal of
Newfoundland and Labrador".
Coat of arms
33. The
coat of arms of the court shall be the Royal Arms as displayed in the court
house.
Seal
34. (1) The
judges may establish the seal to be used by the court to certify and authenticate
the proceedings of the court.
(2) Until the seal is established under subsection
(1), the seal presently in use by the court shall continue to be used.
(3) The seal of the court shall be kept at the
registry.
Transfer of
proceedings
35. (1) If a proceeding has been started in the court where it ought
not to have been started, a judge may direct that proceeding be transferred to
the court in which the proceedings ought to have been started.
(2) All proceedings taken by a party that have
been transferred under subsection (1), and all orders made before the transfer,
are considered to be as valid as if they had been taken and made in the court
in which the proceedings ought to have been started.
Costs
36. (1) Subject
to the rules and the express provisions of another Act, the costs of and
incident to all proceedings in the court are in the discretion of the court.
(2) The court may determine by whom and to what
extent costs awarded under subsection (1) shall be paid.
(3) Costs may be awarded to and against the Crown.
Rules committees
37. (1) There
is continued a rules committee of the court consisting of
(a) the Chief Justice who shall be the
chairperson;
(b) the other judges of the court;
(c) the Chief Justice of the Supreme Court, or the
nominee of the Chief Justice from among the judges of the Supreme Court;
(d) a nominee of the Chief Executive Officer;
(e) 2 members of the Law Society of Newfoundland
and Labrador appointed by the benchers of that
society; and
(f) the minister or the nominee of the minister.
(2) The rules committee shall meet at least once
yearly at the call of the chairperson and at other times upon the request of 3
members of the rules committee made in writing to the chairperson.
Rules
38. (1) The
rules committee may make rules
(a) regulating the sittings of the court;
(b) regulating the procedure of the court in
exercising the jurisdiction of the court conferred by this Act or any other Act
or regulation;
(c) providing for the service of documents;
(d) respecting the duties of the clerks, officers
and employees of the court;
(e) respecting the costs of proceedings in the
court;
(f) governing the pleading, practice and procedure
of the court.
(g) regulating the means by which further evidence
may be given and facts may be proved in any preceding where the court orders
admission of further evidence;
(h) regulating the payment, transfer and deposit
of money or property into or out of court;
(i) directing the clerks, officers and employees
of the court to do those things respecting the conduct of proceedings in the
court and to transact the business of the court as specified in the rules;
(j) regulating the procedure applicable to a
reference referred under section 24;
(k) respecting the maintenance of records and
filing documents and materials by electronic means;
(l) respecting access to proceedings and court
records;
(m) respecting the procedure and actions required
for the court to exercise the jurisdiction conferred on it by this Act or any other
Act or regulations;
(n) fixing the scale of fees to be taken by
barristers and others for proceedings in the court other than fees referred to
in subsection (2); and
(o) generally, for the purpose and administration
of the Act.
(2) The Lieutenant-Governor in Council may make
rules fixing the scale of fees to be taken by the court.
(3) Rules made under this section are subordinate
legislation for the purposes of the Statutes and Subordinate Legislation
Act.
(4) Upon the coming into force of this Act, the Court of Appeal Rules, Newfoundland and Labrador Regulation 38/16,
shall continue in force and shall be considered to have been made under the authority
of this Act.
Where procedure
not provided for
39. In
cases not provided for in this Act, the rules or by the provisions of another
Act that are not inconsistent with this Act, or where the practice and
procedure in a particular proceeding cannot be ascertained, the court may adopt
the practice and procedure that is necessary to permit the proceeding to
continue.
Constitutional
questions
40. (1) Where
in a proceeding the constitutional validity, applicability or operability of an
Act or regulation of the Parliament of Canada or of the Legislature is brought
into question at first instance in the court, it shall not be heard until
notice has been given to the Attorney General for Canada and to the Attorney
General for the province.
(2) The notice shall state what Act, regulation or
part of an Act or regulation is in question and the day on which the question
is to be argued, and shall give other particulars that are necessary to show
the constitutional point proposed to be argued.
(3) Subject to the rules, the notice shall be
served as soon as practicable but no later than 10 days before the day named
for the argument.
(4) The Attorney General for Canada and the Attorney General for
the province are entitled as of right to be heard either in person or by
counsel notwithstanding that the Crown is not a party to the proceeding.
(5) Where in a proceeding to which this section
applies the Attorney General for Canada or the Attorney General for the
province appears in person or by counsel, each shall be considered to be a
party to the proceeding for the purpose of an appeal from an adjudication as to
the constitutional validity, applicability or operability of an Act or
regulation in question in the proceeding and each has the same rights with
respect to an appeal as another party to the proceeding.
(6) Where the court considers it appropriate, the
court may order that a notice under this section be given to the Attorney
General of a province.
PART VI
OFFICERS OF THE COURT
Clerks, officers
and employees
41. (1) There
may be appointed, in the manner provided by law, the clerks, officers and employees
that the business of the court requires.
(2) One or more persons appointed under subsection
(1) may, in consultation with the Chief Justice, be designated as a registrar
of the court to perform the duties and responsibilities associated with the registry
as set out in the rules.
(3) The clerks, officers and employees of the
court appointed under this Act shall act under the direction of the Chief
Justice or a judge in matters of judicial administration.
(4) The clerks, officers and employees of the court
appointed under this Act shall act under the direction of the Chief Executive
Officer in matters of court administration and shall perform the duties that
may be assigned to them by the Chief Executive Officer.
Oath of office
42. The
Chief Executive Officer and the clerks, officers and employees referred to in
section 41 shall, before entering upon their duties, take and sign before one
of the judges the following oath or affirmation:
"I, A.B.,
of , do solemnly
swear (or solemnly, sincerely and truly declare and affirm) that I will
according to the best of my skill, learning, ability and judgment, well and
faithfully execute and fulfil the duties of the office of without favour or affection,
prejudice or partiality." (Where an oath is taken, add "So help me
God".)
Application of
Part IV, Judicature Act
43. Except
where inconsistent with sections 41 and 42, Part IV of the Judicature Act shall apply, with the necessary changes, to the clerks,
officers and employees of the court.
PART VII
RULES OF LAW
Application of
Part V, Judicature Act
44. In civil proceedings in the court, law and
equity shall be administered by it in accordance with the rules of law set out
in Part V of the Judicature Act.
PART VIII
TRANSITIONAL, CONSEQUENTIAL AND COMMENCEMENT
Transitional
45. (1) Where in an Act, regulation,
rule, order, by-law, agreement or other instrument or document, there is a
reference, express or implied, to the Court of Appeal, Appeal Division, the Supreme
Court of Newfoundland and Labrador-Appeal Division, or the Supreme Court of
Newfoundland and Labrador, Court of Appeal, that reference shall in respect of
matters arising after the coming into force of this Act be considered to be a
reference to the Court of Appeal of Newfoundland and Labrador.
(2) Where in an Act,
regulation, rule, order, by-law, agreement or other instrument or
document, there is a reference, express or implied,
to the Supreme Court, Trial Division, Trial Division, or the Supreme Court of
Newfoundland and Labrador-Trial Division, that reference shall in respect of
matters arising after the coming into force of this Act be considered to be a
reference to the Supreme Court of Newfoundland and Labrador.
(3) Where on the coming into force of this Act, a
proceeding was underway in the Supreme Court of Newfoundland and Labrador,
Court of Appeal, it shall continue as a proceeding of the Court of Appeal of Newfoundland and Labrador.
(4) Where on the coming into force of this Act, a
proceeding was underway in the Supreme Court of Newfoundland and Labrador,
Trial Division, it shall continue as a proceeding of the Supreme Court of
Newfoundland and Labrador.
(5) Where on the coming into force of this Act, a
person was appointed as a master and taxing officer of the Supreme Court, that
person's appointment is unaffected by the coming into force of this Act and the
person shall be considered to be a master and taxing officer of the Court of
Appeal and the Supreme Court.
(6) Where immediately before the coming into force
of this Act a proceeding was before the Supreme Court of Newfoundland and Labrador, Court of Appeal the Court of Appeal may, upon the application of a person interested in that proceeding give directions
(a) regarding the filing of documents or matters of procedure; or
(b) for
the purpose of removing or minimizing a procedural difficulty arising
immediately after the coming into force of this Act.
(7) Where immediately before the coming into force
of this Act a proceeding was before the Supreme Court of Newfoundland and Labrador,
Trial Division, the Supreme Court may, upon the application of a person interested in that proceeding give directions
(a) regarding the filing of documents or matters of procedure; or
(b) for
the purpose of removing or minimizing a procedural difficulty arising
immediately after the coming into force of this Act.
RSNL1990 cJ-4
Amdt.
46. (1) Section 2 of the Judicature Act is repealed and the following substituted:
Definitions
2. In
this Act
(a) "affidavit"
includes a solemn declaration, or statutory declaration, and an agreed
statement of facts;
(b) "Associate Chief Justice" means the
Associate Chief Justice of the Supreme Court;
(c) "Chief Executive Officer" means the
Chief Executive Officer appointed under section 59.1;
(d) "Chief Justice" means the Chief
Justice of the Supreme Court;
(e) "court" means, unless the context
indicates otherwise, the Supreme Court or a judge or the judges of that court,
whether sitting in court or chambers;
(f) "Court of Appeal" means the Court of
Appeal of Newfoundland and Labrador
continued under section 3 of the Court of
Appeal Act;
(g) "decision" means the reasons given
by the court for its judgment or other order;
(h) "defendant" means a person served
with an originating document, or served with notice of or entitled to attend a
proceeding but does not include a respondent;
(i) "judge" means a judge of the court
and includes a judge sitting in chambers;
(j) "judicial centre" means a judicial
centre of the court continued under this Act;
(k) "master" means a Master of the Court
of Appeal and the Supreme Court appointed under section 77;
(l) "minister" means the minister
appointed under the Executive Council Act
to administer this Act;
(m) "oath" includes solemn affirmation
and statutory declaration;
(n) "order" means an order of the court
and includes a judgment, decree or ruling;
(o) "party" means a person served with
notice of, or entitled to attend a proceeding, even if that person is not named
in the record;
(p) "petitioner" includes a person
making an application to the court, other than as against a defendant;
(q) "plaintiff" means a person asking
relief against another person by a form of proceeding, other than by
counterclaim as a defendant but does not include a petitioner;
(r) "proceeding" means a civil or
criminal action, suit, cause or matter, or an interlocutory application,
including a proceeding formerly started by a writ of summons, third party notice,
counterclaim, petition, originating summons, originating motion or in another
manner;
(s) "registry" means the registry in
each judicial centre;
(t) "rules" means
(i) the Rules
of the Supreme Court of Newfoundland and Labrador, 1986 and includes
the forms in those rules, and
(ii) the Rules of the Supreme Court of Newfoundland
and Labrador made under section 55 that replace, amend or revoke the rules and
forms; and
(u) "Supreme Court" means the Supreme
Court of Newfoundland and Labrador.
(2) Section 3 of the Act is repealed and the
following substituted:
Continuation and
jurisdiction of court
3. (1) The
Supreme Court of Newfoundland and Labrador, Trial Division as it existed before
the coming into force of this section is continued as the Supreme Court of
Newfoundland and Labrador and shall have all civil and criminal jurisdiction
conferred upon the Supreme Court of Newfoundland
(a) by the Imperial Statute passed in the 5th
year of the reign of His late Majesty King George the 4th, entitled "An Act for the better administration of
justice in Newfoundland, and for other purposes";
(b) by the Royal Charter or Letters Patent under
the Great Seal, issued by virtue of the Imperial Statute, dated September 19th,
1825, in the 6th year of His late Majesty's reign; and
(c) by a law in force in the province.
(2) The Supreme Court has all the inherent powers
of a superior court at common law.
(3) Part I of the Act is repealed.
(4) The heading for Part II of the Act is repealed
and the following substituted:
PART II
THE SUPREME COURT
(5) Section 20.1 of the Act is repealed.
(6) Section 21 of the Act is repealed and the
following substituted:
Supreme Court
21. (1) The
court consists of
(a) a chief justice, who shall be called the Chief
Justice of the Supreme Court;
(b) an associate chief justice, who shall be
called the Associate Chief Justice of the Supreme Court; and
(c) 22 other judges.
(2) The Chief Justice, the Associate Chief Justice
and the judges referred to in paragraph (1)(c) shall collectively be called the
judges of the Supreme Court.
(3) The court shall be composed of 2 divisions
called the General Division and the Family Division.
(4) A judge who is not assigned to the Family
Division under subsection 43.6(1) shall be considered to be assigned to the General
Division.
(5) The Chief Justice and the Associate Chief
Justice may hear and determine proceedings brought in the General Division and
the Family Division and for that purpose the Chief Justice and the Associate
Chief Justice are judges of the General Division and the Family Division.
(7) Subsections 22(2) and (3) of the Act are
amended by deleting the words "Trial Division" and substituting the
word "court".
(8) Section 23 of the Act is repealed and the
following substituted:
Jurisdiction
23. The
court has jurisdiction over all civil and criminal proceedings that were within
the jurisdiction of the Trial Division immediately before the commencement of
this section, including all proceedings pending in the Trial Division.
(9) Section 24 of the Act is amended by deleting
the words "Trial Division" and substituting the word
"court".
(10) Section 26 of the Act is amended by deleting
the words "Trial Division" and substituting the word
"court".
(11) Section 27 of the Act is repealed and the
following substituted:
Jurisdiction of
judges
27. (1) Each
judge may exercise the jurisdiction of the court in chambers, in court or as
may be directed or authorized to be heard by the rules.
(2) A judge sitting in the court, in chambers or
in a manner directed or authorized by the rules constitutes the court.
(12) Section 30 of the Act is repealed and the
following substituted:
Transfer of judge
30. (1) Where,
in a proceeding, there is no judge of the court who is able or eligible to sit
or it is desirable for good reason that no judge of the court should sit, the
Chief Justice may request the Chief Justice of Newfoundland and Labrador to appoint
one of the judges of the Court of Appeal to sit and act as a judge of the Supreme
Court for the hearing of the proceeding.
(2) A judge appointed under subsection (1) shall
attend at the hearing of the proceeding to which that judge has been appointed
and while that judge sits and acts the judge has all the jurisdiction, power
and authority of a judge of the court.
(13) Subsection 32(1) of the Act is amended by
deleting the words "of the Trial Division".
(14) Section 34 of the Act is repealed and the
following substituted:
Appeals to
Supreme Court
34. (1) On
an appeal from a tribunal or a court of inferior jurisdiction and upon the
removal of a proceeding in which evidence has been taken to the court, the
court
(a) may direct the rehearing of witnesses, the
retaking of evidence or the taking of further and other evidence by the court
of inferior jurisdiction or the tribunal;
(b) may require the report of all evidence taken
by the court of inferior jurisdiction or the tribunal;
(c) may require the production and examination of
a witness already examined or of persons who have not been already examined;
and
(d) may refer the proceeding back to the court of
inferior jurisdiction or the tribunal for further consideration in whole or in
part.
(2) In giving a decision or judgment upon an
appeal from a court of inferior jurisdiction or a tribunal, the court
(a) may dismiss the appeal;
(b) may confirm or reverse the decision of the
court of inferior jurisdiction or the tribunal;
(c) may alter, amend or modify the decision;
(d) may make an order that appears to be just; and
(e) may make orders as to costs.
(15) The header for Division 2 of the Act is
repealed and the following substituted:
Division
2
Supreme Court - General Division
(16) Section 43.5 of the Act is amended by deleting
the words "Chief Justice of the Trial Division" wherever they appear and
substituting the words "Chief Justice".
(17) Section 43.6 of the Act is amended by deleting
the words "Chief Justice of the Trial Division" wherever they appear
and substituting the words "Chief Justice".
(18) The Act is amended by repealing sections 44 to
59 and substituting the following:
Coat of arms
44. The
coat of arms of the court shall be the Royal Arms as displayed in the court
houses of the Supreme Court.
Seal
45. (1) The
judges of the court may establish the seal to be used by the court to certify
and authenticate the proceedings of the court.
(2) Until the seal is established under subsection
(1), the seal presently in use by the court shall continue to be used.
(3) The seal of the court shall be kept at the judicial
centre of St. Johns
and a duplicate of that seal shall be kept at the registry in each judicial
centre.
Oaths
46. (1) The
Chief Justice, the Associate Chief Justice and every other judge of the court
shall, before entering upon the duties of the office of judge, take and sign
the Oath of Allegiance and the Judicial Oath referred to in the Oaths of Office
Act.
(2) The oaths referred to in subsection (1) shall
be administered by a judge.
Supernumerary
judges
47. (1) For
each office of judge established under section 21, there is an additional
office of supernumerary judge, which a judge of the court may elect to hold
upon compliance with the Judges Act (Canada) and upon meeting the
qualifications required under that Act.
(2) A judge who elects to hold the office of
supernumerary judge is to be called a judge of the Supreme Court.
(3) Subsection 22(3) does not apply to a judge who
elects to hold the office of supernumerary judge.
Additional judge
47.1 For
the purpose of section 32 of the Judges Act (Canada), there shall be
established, for the Office of Chief Justice of the Supreme Court of
Newfoundland and Labrador and the Office of Associate Chief Justice of the
Supreme Court an additional office of judge as is from time to time required,
to be held by a Chief Justice or Associate Chief Justice who has elected under
the Judges Act (Canada) to perform only the duties of a judge of the Supreme
Court.
Precedence of
judges
48. The
judges of the Supreme Court and the
Court of Appeal have rank, precedence and seniority in the following order:
(a) the Chief Justice of Newfoundland
and Labrador;
(b) the Chief Justice;
(c) the Associate Chief Justice;
(d) the judges of the Court of Appeal in the order
of their seniority of appointment to the Court of Appeal; and
(e) the judges of the Supreme Court in the order
of their seniority of appointment to the court.
Powers of the
Chief Justice
49. Where
there is a vacancy in the office of the Chief Justice or the Chief Justice
(a) is absent from the province;
(b) is unable to act; or
(c) requests it,
his or her powers shall be exercised by
the Associate Chief Justice, or if there is a vacancy in the Office of
Associate Chief Justice or he or she is absent or unable to act, by the next
senior judge of the court who is able to act in the place of the Chief Justice.
Vacancy
50. A
vacancy in the court does not impair the court in the exercise of its powers.
Judges
51. A
judge of the Court of Appeal is by virtue of the office a judge of the court
where that judge has been appointed under section 30 for the purpose of hearing
a proceeding and while so acting has in all respects equal jurisdiction, power
and authority.
Transfer of
proceeding
52. (1) If
a proceeding has been started
(a) in
the Court of Appeal where it ought not to have been started; or
(b) in
the Supreme Court where it ought not to have been started,
a judge of the respective court may direct that proceeding be
transferred to the appropriate court.
(2) All proceedings taken by a party that have
been transferred under subsection (1), and all orders made before the transfer,
are considered to be as valid as if they had been taken and made in the court
in which the proceeding ought to have been started.
Costs
53. (1) Subject
to the rules and the express provisions of another Act, the costs of and
incident to all proceedings in the court including the administration of
estates and trusts are in the discretion of the court.
(2) The court may determine by whom and to what
extent costs awarded under subsection (1) shall be paid.
(3) Costs may be awarded to and against the Crown.
Rules committees
54. (1) There
is continued a rules committee of the Supreme Court consisting of
(a) the Chief Justice, who shall be chairperson;
(b) the Chief Justice of Newfoundland and
Labrador, or the nominee of the Chief Justice of Newfoundland and Labrador
from among the judges of the Court of Appeal;
(c) 4 judges of the Supreme Court designated by
the Chief Justice;
(d) a nominee of the Chief Executive Officer;
(e) 2 members of the Law Society of Newfoundland appointed
by the benchers of that society; and
(f) the minister or the nominee of the minister.
(2) The rules committee shall meet at least once
yearly at the call of the chairperson and at other times upon the request of 3
members of the rules committee made in writing to the chairperson.
Rules
55. (1) The
rules committee may make rules
(a) regulating the sittings of the court and the
sittings of the judges in chambers;
(b) regulating the payment, transfer and deposit
of money or property into or out of the court;
(c) regulating the procedure of the court in
exercising the jurisdiction of the court conferred by another Act or
regulation;
(d) regulating the means by which particular facts
may be proved and the method in which evidence may be given on an application
in a proceeding relating to the distribution of a fund or property, whether in
the court or not;
(e) respecting the physical or mental examination
of a party where the physical or mental condition of a party is an issue in the
proceeding;
(f) respecting the hearing of appeals and all
proceedings relating to or brought up by certiorari orders from Provincial Court
judges or justices of the peace;
(g) governing the pleading, practice and procedure
of probate and administration under Part VI;
(h) providing for the service of documents out of
the jurisdiction of the court;
(i) respecting the duties of the clerks, officers
and employees of the court;
(j) respecting the costs of proceedings in the
court; and
(k) governing the pleading, practice and procedure
generally of the court.
(2) The Lieutenant-Governor in Council may make
rules fixing the scale of fees to be taken by the court.
(3) The rules committee may make rules fixing the
scale of fees to be taken by barristers and others for proceedings in the court
not included in subsection (2).
(4) Rules made under this section are subordinate
legislation for the purposes of the Statutes and Subordinate Legislation
Act.
Where procedure
not provided for
56. In cases not provided for in
this Act, the rules or by the provisions of another Act that are not inconsistent
with this Act, or where the practice and procedure in a particular proceeding
cannot be ascertained, the court may adopt the practice and procedure that is
necessary to permit the proceeding to continue.
Constitutional
questions
57. (1) Where
in a proceeding the constitutional validity, applicability or operability of an
Act or regulation of the Parliament of Canada or of the Legislature is brought
into question, it shall not be heard until notice has been given to the
Attorney General for Canada and to the Attorney General for the province.
(2) The notice shall state what Act, regulation or
part of an Act or regulation is in question and the day on which the question
is to be argued, and shall give other particulars that are necessary to show
the constitutional point proposed to be argued.
(3) Subject to the rules, the notice shall be
served as soon as practicable but no later than 10 days before the day named
for the argument.
(4) The Attorney General for Canada and the Attorney General for
the province are entitled as of right to be heard either in person or by
counsel notwithstanding that the Crown is not a party to the proceeding.
(5) Where in a proceeding to which this section
applies the Attorney General for Canada or the Attorney General for the
province appears in person or by counsel, each shall be considered to be a
party to the proceeding for the purpose of an appeal from an adjudication as to
the constitutional validity, applicability or operability of an Act or
regulation in question in the proceeding and each has the same rights with
respect to an appeal as another party to the proceeding.
(6) Where the court considers it appropriate, the
court may order that a notice under this section be given to the Attorney
General of a province.
Council of judges
58. (1) A
council consisting of the judges shall meet at least once yearly at the call of
the chairperson and at other times upon the written request of 3 judges to the
chairperson, upon a day fixed by the chairperson and of which he or she shall
give notice to the judges assembled for the purpose of
(a) considering
(i) the operation of this Act and the rules, and
(ii) the working of, and the arrangements governing
the performance of duties by, the clerks, officers and employees of the court;
(b) inquiring into and examining defects that
appear to exist in the procedure of the court; and
(c) considering other matters that the chairperson
or one of the judges considers appropriate.
(2) The Chief Justice shall be the chairperson of
the council.
(3) Where the council considers it necessary and
appropriate to do so, it may form one or more subcommittees to deal with a
matter referred to in subsection (1) and each subcommittee so formed shall meet
at the times and places that are necessary to achieve the purpose for which it
was formed.
Conferences
59. The
Chief Justice may require a judge to attend a meeting, conference or seminar to
be held for a purpose relating to the administration of justice.
(19) Section 59.1 of the Act is repealed and the
following substituted:
Chief Executive
Officer
59.1 (1) The
Lieutenant-Governor in Council, in consultation with the Chief Justice of
Newfoundland and Labrador and the Chief Justice, may appoint or remove a Chief
Executive Officer who shall be the Chief Executive Officer of both the Supreme
Court and the Court of Appeal.
(2) The Lieutenant-Governor in Council may appoint
a person to act in the place of the Chief Executive Officer until a Chief Executive
Officer is appointed or the Chief Executive Officer is able to resume his or
her duties where
(a) the office of the Chief Executive Officer is
vacant; or
(b) the Chief Executive Officer is unable to
fulfill his or her duties.
(3) The Chief Executive Officer shall act under
the direction of the minister in matters of court administration of the Supreme
Court and the Court of Appeal.
(4) The duties of the Chief Executive Officer
shall include
(a) the management, operation and administration
of the Supreme Court and the Court of Appeal;
(b) the direction and supervision of the clerks,
officers and employees of the Supreme Court, the Court of Appeal and registries;
(c) an accounting of the fees required to be
collected by the clerks, officers and employees of the Supreme Court and the
Court of Appeal and of the money paid into and out of court; and
(d) the duties provided under this or another Act
or regulation or rule made under this or another Act, or as may be assigned by
the minister, the Chief Justice or the Chief Justice of Newfoundland
and Labrador.
(5) The Chief Executive Officer shall act under
the direction of the Chief Justice and the Chief Justice of Newfoundland and
Labrador in matters of judicial administration.
(20) Section 60.2 of the Act is repealed and the
following substituted:
Taxing officers
60.2 (1) The
Chief Justice of Newfoundland and Labrador and the Chief Justice may designate
clerks, officers and employees of the Court of Appeal and the Supreme Court appointed
under this Part as taxing officers for the Court of Appeal and the Supreme
Court respectively.
(2) A clerk, officer or employee appointed under
this Part is not entitled to additional remuneration, or to charge a fee, only
because he or she is designated as a taxing officer.
(21) Section 67 of the Act is repealed and the
following substituted:
Accounts
67. (1) The
Chief Executive Officer shall, as soon as possible after the end of every
fiscal year, prepare accounts of all money held by the Court of Appeal and the
Supreme Court and shall, before August 1 in every year, provide a copy of the accounts
(a) to the Chief Justice of Newfoundland and Labrador and the Chief Justice, for the information of
the judges; and
(b) to the minister.
(2) The auditor general shall examine and audit
the accounts of the Court of Appeal and the Supreme Court.
(22) Subsection 70(1) of the Act is amended by
deleting the words "Trial Division" and substituting the word
"court".
(23) Subsection 78(1) of the Act is repealed and
the following substituted:
Commissioners
within the province
78. (1) The
Chief Justice of Newfoundland and Labrador and the Chief Justice may issue
commissions within the province under the seal of the Court of Appeal or the
Supreme Court to those persons that they think suitable, and may revoke the
commissions.
(24) Subsection 79(1) of the Act is repealed and
the following substituted:
Commissioners
outside the province
79. (1) The
Chief Justice of Newfoundland and Labrador and the Chief Justice may issue
commissions outside the province under the seal of the Court of Appeal or the
Supreme Court to those persons that they think suitable, and may revoke the
commission.
(25) Section 90 of the Act is repealed and the
following substituted:
Interpretation
90. In
civil proceedings in the Supreme Court, law and equity shall be administered by
it in accordance with the rules of law set out in this Part.
(26) Part VII of the Act is repealed and the
following substituted:
PART VIII
TRANSITIONAL PROVISIONS
Transitional provisions
141. (1) Where
in an Act, regulation, rule,
order, by-law, agreement or other instrument or document, there is a reference,
express or implied, to the Court of Appeal, Appeal Division, the Supreme Court
of Newfoundland and Labrador-Appeal Division, or the Supreme Court of
Newfoundland and Labrador, Court of Appeal, that reference shall in respect of matters arising on or after January 1, 2018 be considered
to be a reference to the Court of Appeal of Newfoundland and Labrador.
(2) Where in an Act,
regulation, rule, order, by-law, agreement or other instrument or
document, there is a reference, express or implied,
to the Supreme Court, Trial Division, Trial Division, or the Supreme Court of
Newfoundland and Labrador-Trial Division, that reference shall in respect of
matters arising on or after January 1, 2018 be considered to be a reference to
the Supreme Court of Newfoundland and Labrador.
(3) Where on or after January 1, 2018, a
proceeding was underway in the Supreme Court of Newfoundland and Labrador,
Court of Appeal, it shall continue as a proceeding of the Court of Appeal of
Newfoundland and Labrador.
(4) Where on or after January 1, 2018, a
proceeding was underway in the Supreme Court of Newfoundland and Labrador,
Trial Division, it shall continue as a proceeding of the Supreme Court of Newfoundland
and Labrador.
(5) Where on or after January 1, 2018, a person
was appointed as a master and taxing officer of the Supreme Court, that
person's appointment is unaffected by the coming into force of this Act and the
person shall be considered to be a master and taxing officer of the Court of
Appeal and the Supreme Court.
(6) Where immediately before January 1, 2018 a
proceeding was before the Supreme Court of Newfoundland and Labrador,
Court of Appeal, the Court of Appeal may, upon the application of a person interested in that
proceeding give directions
(a) regarding the filing of documents or matters of procedure; or
(b) for
the purpose of removing or minimizing a procedural difficulty arising
immediately after the coming into force of this Act.
(7) Where immediately before January 1, 2018 a
proceeding was before the Supreme Court of Newfoundland and Labrador,
Trial Division, the Supreme Court may, upon the application of a person interested in that proceeding give directions
(a) regarding the filing of documents or matters of procedure; or
(b) for
the purpose of removing or minimizing a procedural difficulty arising
immediately after the coming into force of this Act.
SNL2016 c37 Amdt.
47. Section 2 of An Act to Amend the Judicature Act, SNL2016 c37, is amended by
deleting the words "Trial Division" wherever they appear and
substituting the words "Supreme Court".
Commencement
48. This Act comes into force on January 1, 2018.
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