Bill 70 (Legislature 15, Session 2)

L15 S2 1510

Alberta — Bills

2nd Session, 15th Legislature, Alberta 13 Elizabeth II B'ltL 70 A Bill to. amend The. Small Debts Act HON'. MR. MA'.NNING' Printed by L. S. WALL, Printer to the Queen's Most Excellent Majet5ty, Edmonton, Alberta, 1965

Explanatory Note I. This Bill amends

chapter 314 of the Revised Statutes.

Section 5 reads: 5. A person having any claim that may be adjudicated upon under this Act may obtain from a magistrate a summons in Form A in

Schedule 1.

Section 7, subsection (1) presently reads: 7.

(1) The plaintiff shall, before the summons is issued, deposit with the magistrate the sum of three dollars by way of a deposit on the taxable fees of the magistrate and his bailiff.

Section 10 and

section 13, subsection (2) presently reads: 10. 'Upon any sutUmons being returned unserved the magistrate c· (

a) shall postpone the hearing for not more than sixty days and may further postpone the hearing from time to time by endorsing a memorandum on the summons and a copy of the summons, and ('

b) shall notify the plaintiff of the postponement by letter addressed to him at the address furnished in the claim. 13. (1) ••••••••••••

(2) All summonses shall be served at least ten days before the date appointed therein for the hearing of the case.

Section 11, subsection (1) presently reads: 11.

(1) A defendant having a counterclaim shall file particulars of the same with t:re magistrate and serve the plaintiff with a copy of the particulars six days at least before the day fixed for the trial in the summOl1S or endorsement thereon. Form J is added to the

Schedule by clause 14 of this bill.

BILL No. 70 of 1965

An Act to amend The Small Debts Act (Assented to , 1965) HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Alberta, enacts as follows: 1. The Small Debts Act is hereby amended.

Section 5 is amended by renumbering the

section as subsection (1) and by adding the following subsections:

(2) Notwithstanding subsection (1), a magistrate may refuse to issue a summons if (

a) by reason of the distance between the residences of the proposed parties to the proceedings, or (

b) for any other reason, he consiiders that it is not in the interest of either party that the claim be adjudicated upon under this Act. (3 ) The refusal of a magistrate to issue a summons does not prejudice the right of the person having a claim to proceed thereon in any manner authorized by law.

Section 7, subsection (1) is amended by striking out the word "three" and by substituting the word "'four".

Section 10 is struck out and the following is sub stituted: 10. Where a summons (

a) is not served, or (

b) is not served within the time limited by subsection (2) of

section 13, a magistrate, upon application or upon his own motion, may issue a new summons and fix a new day for the hearing of the cla,im.

Section 11 is amended by striking out subsection (1) and by substituting the following: 11.

(1) A defendant having a counterclaim may file with the magistrate particulars of his counter claim in Form J

6. Service of documents on a Sunday or holiday.

Section 15, clause (

c) reads: 15. The service of any summons, counterclaim, notice, paper or other document may be proved «(') b; .;~ . ~~~i·da vit of service proving the mailing by register~ mail ann exhibiting" thp ::If"l{Cll1wledgment on receipt of the reg-lstHed letter purporting to be signed by the person to be served, or by any person receiving the same on his behalf.

Section 21, subsection (1), clause (

a) and subsection (2) read: 21.

(1) At the time mentioned in the summons or last endorsempnt of postponement thereon, if the summons was duly served, 01" If the summons was served less than ten days before the hearing then on some day to which the hearing Is adjourned, a claim shall be tried or determined before (

a) the magistrate who issued the summons, or

(2) Notwithstanding subsection (1), no claim shall, except with the consent of the defendant, be tried or adjudicated upon by a magistrate unless the summons has been served at least ten days before the trial. The

section is amended to conform with the change to

section 10 of the Act. See clause 4 of this Bill. 2

Section 26 presently reads: 26. A magistrate may adjourn the hearing from day to day if necessary ~o fi~ish the business and may in the absence of necessary and materIal WItnesses, or for other good cause appearing on oath or affidavit, adjourn the hearing on such terms as seem to him just.

Section 28 presently reads: 28.

(1) The presiding magistrate shall take down in writing the evidence offered on the trial, and shall read over to each witness the evidence given by him and the witness shall subscribe his name thereto, and the magistrate shall certify the evidence.

(2) Such evidence shall be taken on oath and the parties and witnesses are subject to cross-examination and re-examination. UNIVERSITY OF ALBERTA UBRARY

in

Schedule I and shall serve a copy of the counterclaim so filed on the plaintiff at least six days before the day fixed in the summons for the trial.

Section 13 is amended by adding the following subsec tion after subsection (2) :

(3) The service of any process paper or document on a Sunday or on a holiday is void.

Section 15 is .amended by adding the word u or" at the end of clause (

c) and by adding the following clause after clause (c): (

d) where the service was affected by the magistrate or an officer of his court by registered mail, by producing the acknowledgment on receipt of the registered letter purporting to be signed by the person to be served or by the person receiving the letter on his behalf.

Section 21 is amended (

a) as to subsection (1) by striking out the words "or last endorsement of postponement thereon, if the summons was duly served, or if the summons was served less than ten days before the hearing then on some day to which the hearing is adjourned", (

b) by striking out subsection (2).

Section 26 is struck out and the following is sub stituted: 26. A magistrate may adjourn a trial from time to time if necessary to c·omplete the hearing and he may, for any cause he ·considers sufficient, adjourn a trial for such periods as he considers necessary.

Section 28 is struck out and the following is sub stituted: 28.

(1) The evidence offered at a trial shall be taken on oath and all persons giving evidence are subject to cross examination and re-examination.

(2) If the evidence given at a trial is not taken as per mitted by subsection (3), the magistrate shall cause the evidence of each witness to be taken down in writing in a

summary fashion and 2 (

a) the magistrate shall' read:over to each witness the written

summary 'of the witness's eVidence, and (

b) the witness shaH subscribe his name to the written

summary, and

II.

Section 30 of the Act reads: 30. When the defendant does not appear and defend, the- plaintiff may prove his case and judgment may be given against the defendant in his absence unless fQr good cause, as prQvided in sectiQn 26, the magistrate decides to adjourn the hearing. The summons by which proceedings are commenced may be served by double registered mail. Where it is accepted by a representative of the defendant it is possible for judgment to be obtained before the defendant has actual notice of the proceedings. ,

Section 34 reads: 34.

(1) Where a judgment debtor fails to appear in answer to' a summO'ns issued pursuant to

section 33, the magistrate may issue a warrant to' compel his attendance at a place and time to' be set Qut in the warrant.

(2) A warrant (

a) shall be under the hand and seal 0If a magistrate issuing the same, and (

b) may be directed to any constable by name, Qr to' such constables or all other constables within the territDrial jurisdiction Df the magistrate issuing it, or generally to all constables within such jurisdictiQn.

(31) The warrant shall name Dr O'therwisedescribe the judgment delbtor and shall order the officer or officers, to whDm it is directed tOo apprehend the Ooffender and bring him befDre the magistrate issuing 'the warrant, Qr before some Qther magistrate, to answer tOo the summDns and to be further derult with according to law. 13. Form B of

Schedule I revised. 3

(

c) the magistrate shall then certify thereon that it is a

summary of the evidence given by that witness at the trial.

(3) The evidence offered at a trial may be taken by means of a sound recording machine as provided under The M e chanical Recording of Evidence Act or by a court reporter appointed in accordance with the Consolidated Rules of the Supreme Court. 11. The following

section is added after

section 30: 30a. Where a judgment is given against a defendant in his absence, the magistrate, (

a) upon the application of the defendant made within thirty days after the judgment isg.iven, and (

b) upon being satisfied by such evidence as he may require that the summons was not in fact received by the defendant, may set aside the judgment and, without the issue of a summons but on such notice to the parties as he considers proper, fix a date for a trial and the matters in issue shall then be determined in accordance with this Act.

Section 34 is repealed. 13. Form B in

Schedule I is struck out and the following is substituted: FOR'M B (Section 6) OLAI,M (The Small Debts Act) OANADA } Province of Alberta TO WIT: The claim of .................................... of ..................................... . in the Province of Alberta, ......................... ,' made the ........ , .... , ( occupation) day of ........................ , 19 ........ , who saith that .......................... .. of .................................. , in the Province is indebted to him 3

14. Form J is added to

Schedule I to conform with the amend ments to

section 11 of the Act. 15. Commencement of Act. 4

in the sum of $ ........................ (here give particulars of claim or refer to them. as attached). And I, ........................................................................... . (Complainant or someone conversant 'With the facts) do swear that, to the best of my knowledge and belief, the above claim is correct, and the said ................................. .is indebted to . .. ...... in the sum of $ ... . as aforesaid.

Sworn before me the day and} y·ear first above mentioned at ................................................ in ............................................... . the Province of Alberta. (Magistrate, Justice of the Peace, Notant Public or Commissioner for taking Affidavits) 14.

Schedule 1 is further amended by adding the follow ing ·after Form I: FORMJ (Section 11) COUNTERCLAIM (The Small Debts Act) Between ................................................... .

Plaintiff and Defendant The Counterclaim of ............................... of in the Province of Alberta........ . .... filed the .. (Occupation) day of. .. ......... , 19 .... , with..... ..... .. ..... , one of Her Majesty's Justices of the Peace (or Magistrates, as the case tnay be) who saith that... of ................................................... .in the said Province, plaintiff, is indebted to him, the said defendant, in the sum ·of $.............. . .. particulars of which indebtedness are as follows: (H ere give particulars or refer to them as attached) .................... ....... . .. (Signat'ure of Defendant or his authorized agent or attorney) 15.

This Act comes into force on a date to be fixed by Proclama tion. 4

No. 70 SECOND SESSION FIFTEENTH LEGISLA YURE 13 E!LIZABETH II 1965 BILL

An Act to amend The Small Debts Act Received and read the First time ...................... . Second time ....................................... . Third time ......................................... . RON. MR. MANNING Title: 1965 (15th, 2nd) Bill 70,

An Act to amend The Small Debts Act

Document details

Collection	Alberta — Bills
Citation	L15 S2 1510
Type	bill
Volume / chapter	L15 S2 1510
Language	en
Format	json
Source	PROVINCIAL
Identifier	2dd5cac70db3f2cdd0ace192e45229135b38ab25

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