Judicature Act

S.N.L. 1990, c. J-4

Newfoundland and Labrador — Consolidated Statutes

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St. John's, Newfoundland and Labrador, Canada

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RSNL1990

CHAPTER J-4

JUDICATURE ACT

Amended:

1991 c39; 1993 c41; 1993 c53 s17; 1995 c6; 1996 cJ-1.1 s194;

1997 c43 s1; 1998 c6 s16; 1999 c37; 2001 cN-3.1 s2; 2001 c42 s24; 2004 c36 s20; 2006 c40 s21; 2008 c28; 2009 c16; 2010 c29;

2011 cA-4.01 s37; 2013 c16;

2016 c37 (s2

not in force not included); 2017 cC37.002 s46;

2018 cC-12.3 s122; 2021 cA-4.02 s43; 2022 c4

CHAPTER J-4

AN ACT RESPECTING THE SUPREME COURT AND PROCEDURE IN THAT COURT

Analysis

Short title

Definitions

Continuation and jurisdiction of court

PART I

THE COURT OF APPEAL

Rep. by 2017 cC37.002 s46

PART II

THE SUPREME COURT

Division 1

General Provisions

20.1

Rep. by 2017 cC37.002 s46

Supreme Court

Judicial centres

Jurisdiction

Single judge

Same judge

Sitting apart

Jurisdiction of judges

Rep. by 2009 c16 s6

Substitution of judge

Transfer of judge

Retired judge's reserved decision

Rehearing of decision

Rep. by 2009 c16 s7

Appeals to Supreme Court

Effect of verdict

Legal and equitable issues

Rep. by 2001 c42 s24

New trials

Forfeiture of recognizances

Rep. by 2004 c36 s20

Submission of matter to jury

Enforcement of penalty

Payment of penalties

43.01

Regulations

Division 2

Supreme Court - General Division

43.1

General Division

43.2

Subject-matter jurisdiction

43.3

Title of documents

43.4

Judge may transfer case to Family Division

Division 3

Trial Division - Family Division

43.5

Judicial area

43.6

Family Division judges

43.7

Geographic jurisdiction

43.8

No jury

43.9

Jurisdiction of court

43.10

Judge may transfer case

43.11

Jurisdiction of court may be extended

43.12

Standing in court

43.13

Persons excluded

43.14

Investigation

43.15

Title of documents

43.16

Membership in Rules Committee

43.17

Court order binds Crown

PART III

THE SUPREME COURT GENERALLY

Coat of arms

Seal

Oaths

Supernumerary judges

47.1

Additional judge

Precedence of judges

Powers of the Chief Justice

Vacancy

Judges

Transfer of proceeding

Costs

Rules committees

Rules

Where procedure not provided for

Constitutional questions

Council of judges

Conferences

PART IV

OFFICERS OF THE SUPREME COURT

59.1

Chief Executive Officer

Clerks, officers and employees

60.1

Powers of staff who perform a registry function

60.2

Taxing officers

60.3

Oath of office

Rep. by 2013 c16 s8

Duties of clerks, officers and employees

Rep. by 2013 c16 s10

Execution of trust estate conveyance

Discharge of liability

Accounts

Fees

Unclaimed money

Persons entitled to money

Trust funds

Rep. by 2013 c16 s18

[Rep. by 2013 c16 s18

Rep. by 2013 c16 s18

Masters and taxing officers

Commissioners within the province

Commissioners outside the province

Fees of commissioners

Rep. by 1991 c29 s24

Rep. by 1991 c39 s24

Rep. by 2013 c16 s19

Officers of the court

PART V

RULES OF LAW

Interpretation

Equitable relief

Equitable and legal relief

Joined defendant

Equitable estates

Prohibition and injunction

Stay of proceedings

Recognition of common law

Avoidance of multiplicity of actions

Equitable waste

Merger by operation of law

Right of mortgagor

Assignment of debts

Stipulations as to time

Mandamus or injunction

Custody questions

Equity prevails

PART VI

PROBATE AND ADMINISTRATION

Definitions

Rep. by 2010 c29 s3

Application

Form

Inventory and valuation

Certificates from registry

Caveat

Where caveat or objection

Proof in solemn form

Other proof

Production of testamentary document

Discretion as to grant

Security

Appointment of administrator pending action

Effect of grant

Removal of executor

Not a sole executor

Executor of appointed executor

Executor absent from province

Renunciation by executor

Good faith payments

Filing of accounts

Proof of debts

Notification of certain creditors

Resealing of foreign grants

PART VII

ATTACHMENT, EXECUTION AND DISTRAINT

Definitions

No arrest

Rep. by 1996 cJ-1.1 s194

Particulars of rent

Rep. by 1998 c6 s16

Distress of goods

Rep. by 1996 cJ-1.1 s194

PART VIII

TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

Transitional Provisions

Rep. by 2017 cC37.002 s46

Short title

This Act may be cited as the Judicature Act

1986 c42 s1

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Definitions

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

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

1986 c42 s2; 1990 c62 s16; 2001 cN-3.1 s2

2006 c40 s21 ; 2013 c16 s1 ; 2017 cC37.002 s46

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Continuation and jurisdiction of court

(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.

1986 c42 s3; 2001 cN-3.1 s2 ; 2017 cC37.002 s46

PART I

THE COURT OF APPEAL

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Rep. by 2017 cC37.002 s46

[Rep. by 2017 cC37.002 s46]

2017 cC37.002 s46

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2017 cC37.002 s46

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2017 cC37.002 s46

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2017 cC37.002 s46

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2017 cC37.002 s46

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2017 cC37.002 s46

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Rep. by 2017 cC37.002 s46

[Rep. by 2017 cC37.002 s46]

2017 cC37.002 s46

PART II

THE SUPREME COURT

2017 cC37.002 s46

Division 1

General Provisions

2009 c16 s1

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Rep. by 2017 cC37.002 s46

20.1

[Rep. by 2017 cC37.002 s46].

2017 cC37.002 s46

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Supreme Court

(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) the number of other judges as prescribed in the regulations.

(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.

2009 c16 s3 ; 2016 c37 s1 ; 2017 cC37.002 s46 ; 2022 c4 s1

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Judicial centres

(1)Except as may be otherwise provided by order of the Lieutenant-Governor in Council, each of the following places shall be a judicial centre: Corner Brook, Gander, Grand Bank, Grand Falls-Windsor

Happy

Valley-Goose

Bay

and St. John's

(2) Each judge appointed to the court shall live and serve in the judicial centre that may be approved by the Lieutenant-Governor in Council upon the judge's appointment and shall not be transferred to live and serve in another judicial centre without the judges consent.

(3) Each judge of the court shall maintain the judges principal residence within an area of 50 kilometres by road from the judicial centre to which that judge has been appointed.

1986 c42 s22; 1993 c41 s1 ; 2017 cC37.002 s46 ;

2022 c4 s2

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Jurisdiction

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.

2009 c16 s4

2017 cC37.002 s46

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Single judge

Except where otherwise expressly provided by

an Act, a proceeding in the court and all proceedings arising from that proceeding shall, where practicable and convenient, be heard, determined and disposed of before a single judge.

1986 c42 s24; 2017 cC37.002 s46

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Same judge

All proceedings after the hearing or trial including the final order, with the exception of proceedings on appeal or by application for a new trial, shall, where practicable and convenient, be taken before the judge before whom the trial or hearing of the proceeding took place.

1986 c42 s25

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Sitting apart

The judges of the court may sit separately and apart from the other judges at the same time to hear and determine a proceeding that may be heard by 1 or more judges, and the rising of 1 or more of the judges does not affect the right of the other judges to continue to sit.

1986 c42 s26; 2017 cC37.002 s46

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Jurisdiction of judges

(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.

2009 c16 s5 ;

2017 cC37.002 s46

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Rep. by 2009 c16 s6

[Rep. by 2009 c16 s6]

2009 c16 s6

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Substitution of judge

(1)Where a judge is absent, ill, or the office has become vacant, or where there is some other cause, and it is urgent to do so, another judge may sit for that judge to hear or dispose of a proceeding heard in part by that judge.

(2) Evidence that has been heard by a judge before the substitution of that judge under subsection (1) may be used by the judge who sits pursuant to subsection (1).

1986 c42 s29

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Transfer of judge

(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.

1986 c42 s30; 2001 cN-3.1 s2 ; 2017 cC37.002 s46

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Retired judge's reserved decision

(1)When a judge has reserved a decision in a proceeding and retires, resigns, or is appointed to another court, that judge may, within 6 months after the retirement, resignation or appointment, give the decision as if that judge were still a judge.

(2) A decision given under subsection (1) is of the same effect as if the judge had not retired, resigned or been appointed to another court.

1986 c42 s31

2022 c4 s3

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Rehearing of decision

(1)When a judge who has reserved a decision in a proceeding

(

a) dies without giving a decision;

(

b) retires, resigns or is appointed to another court without having given the decision within the time set out in

section 31; or

(

c) does not give the decision within 12 months from the time it was reserved by that judge,

a judge may upon application order that the proceeding be retried or reheard by another judge.

(2) Upon the retrial or rehearing under subsection (1), the judge retrying or rehearing the proceeding may direct that the retrial or rehearing

(

a) be upon a transcript of the court reporter's notes;

(

b) be upon that transcript and additional evidence given orally or by affidavit;

(

c) be upon that transcript and additional evidence given orally and by affidavit;

(

d) be upon new evidence; or

(

e) otherwise.

(3) The judge presiding at the retrial or rehearing may give direction as to the disposition of the costs of the original trial or hearing and the cost of obtaining and providing copies of the transcript of the court reporter's notes.

1986 c42 s32

2017 cC37.002 s46

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Rep. by 2009 c16 s7

[Rep. by 2009 c16 s7]

2009 c16 s

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Appeals to Supreme Court

(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.

1986 c42 s34; 2017 cC37.002 s46

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Effect of verdict

The verdict or finding of the judge who tries an issue or assesses damage has the same effect as the findings of a jury.

1986 c42 s35

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Legal and equitable issues

In a proceeding where both legal and equitable issues are raised they shall be heard and tried at the same time unless the court otherwise directs.

1986 c42 s36

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Rep. by 2001 c42 s24

[Rep. by 2001 c42 s24]

2001 c42 s24

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New trials

(1)A new trial of a proceeding that has been tried by a judge without a jury may be finally disposed of as to damages as well as other matters, upon the evidence already taken, with or without further evidence or re-examination, and without the necessity of having the proceeding tried again.

(2) With the consent of the parties, a new trial of a proceeding that has been tried by a jury may be dealt with in the manner set out in subsection (1).

1986 c42 s38

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Forfeiture of recognizances

(1)Where a recognizance returned to or given to the court is forfeited by breach of a condition the court may, by an interim ruling

(

a) made upon sufficient affidavits showing the execution and forfeiture of the recognizance; and

(

b) served upon the parties executing the recognizance that may be within the jurisdiction of the court,

require the parties to show cause why the recognizance should not be declared to be forfeited and the amount of the penalty contained in it be forfeited.

(2) Upon hearing the parties executing the recognizance, or those of them that appear at the hearing, or in default of the appearance of the parties, the court

(

a) may order the recognizance forfeited and the payment of the penalty into the court by the parties liable; or

(

b) may discharge the interim ruling made under subsection (1).

(3) Notwithstanding subsection (2), the court may lessen or forgive the amount of a penalty ordered to be paid under that subsection.

1986 c42 s39

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Rep. by 2004 c36 s20

[Rep. by 2004 c36 s20]

2004 c36 s2

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Submission of matter to jury

(1)The court may, in a case where a recognizance is conditioned on the performance of

an act not to be done in, before, or to the court, submit a matter in controversy on an interim ruling to a jury for its determination in the same manner as if the matter had come before the court upon a special case.

(2) Following the determination of the jury under subsection (1), an order shall be made by the court under

section 39.

1986 c42 s41

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Enforcement of penalty

An order for the payment of a penalty under

section 39 may be enforced by the court by process of contempt under the rules.

1986 c42 s42

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Payment of penalties

An amount paid into the court under sections 39 and 42 shall be paid by the court into the Consolidated Revenue Fund.

1986 c42 s43

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Regulations

43.01

The Lieutenant-Governor in Council may make regulations prescribing the number of judges for the purpose of paragraph 21(1)(c).

2022 c4 s4

Division 2

Supreme Court - General Division

2009 c16 s8 ; 2017 cC37.002 s46

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General Division

43.1

The General Division may sit and exercise its jurisdiction in any place in the province.

2009 c16 s8

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Subject-matter jurisdiction

43.2

The General Division has jurisdiction over

(

a) all civil and criminal proceedings, including pending civil and criminal proceedings, that were within the jurisdiction of the Trial Division of the Supreme Court of Newfoundland and Labrador immediately before the commencement of this section;

(

b) all civil and criminal proceedings of original and appellate jurisdiction that may be conferred on it under

an Act of the province or

an Act of the Parliament of Canada; and

(

c) all proceedings that are within the subject-matter jurisdiction of the Family Division in areas in the province not included in a judicial area or the expanded service area.

2009 c16 s8

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Title of documents

43.3

All originating applications, documents, notices and other papers issued out of or used in the General Division of the court shall be entitled as required by the rules.

2009 c16 s8

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Judge may transfer case to Family Division

43.4

(1)Where a proceeding is started in the General Division that should have been started in the Family Division, a judge of the General Division may direct the proceeding to be transferred to the Family Division, and steps taken by a party in the proceeding and orders made before the transfer are valid and effective as if they were made in the Family Division.

(2) Notwithstanding subsections (1) and 43.9(1), where a matter which would otherwise be within the jurisdiction of the Family Division under paragraph 43.9(1)(

e) arises incidentally or would affect a result in a proceeding in the General Division, a judge of the General Division may proceed to adjudicate that issue but all persons affected shall be given notice of the proceeding and an opportunity to be heard.

2009 c16 s8

Division 3

Trial Division - Family Division

2009 c16 s8

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Judicial area

43.5

(1)In this Part, "judicial area" means an area which the Lieutenant-Governor in Council may, by regulation, define as an area in which the Family Division may exercise its jurisdiction.

(2) The Lieutenant-Governor in Council, after consultation with the Chief Justice, may, by regulation, designate an area of the province as a judicial area in which the Family Division shall operate and may expand or contract a judicial area.

(3) Where a judicial area is designated under subsection (2), the Chief Justice shall assign a presiding judge in the designated judicial area.

(4) The judicial area described in

Schedule A of the Unified Family Court Act,

notwithstanding the repeal of that Act, is considered to constitute a judicial area for the purpose of this Act as if it had been designated under subsection (2).

(5) The expanded service area described in

Schedule B of the Unified Family Court Act

is continued, notwithstanding the repeal of that Act.

(6) The expanded service area defined in

Schedule B of the Unified Family Court Act

may be dealt with by the Lieutenant-Governor in Council under this

section as if it were a judicial area established under this section.

(7) The Family Division may exercise its power and duties in the expanded service area as if the area were a judicial area designated under subsection (2).

2009 c16 s8 ; 2017 cC37.002 s46

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Family Division judges

43.6

(1)The Chief Justice shall assign one or more judges appointed under subsection 21(1) to the Family Division.

(2) Where more than one judge is assigned to the Family Division under subsection (1), the Chief Justice may designate one of them to be the senior administrative judge of the division.

(3) With the consent of the judge, the Chief Justice may re-assign a judge of the Family Division to the General Division.

(4) A judge sitting alone is considered to constitute the Family Division.

(5) Where the Chief Justice so designates, a judge of the General Division may hold sittings of the Family Division concurrently in a judicial area or the expanded service area and the proceedings shall be considered to be before the Family Division.

(6) A judge who, immediately before this

section came into force, was assigned to the Unified Family Court is considered to have been assigned to the Family Division under subsection (1).

2009 c16 s8 ; 2017 cC37.002 s46

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Geographic jurisdiction

43.7

The Family Division may sit and exercise its jurisdiction in any place in a judicial area or the expanded service area.

2009 c16 s8

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No jury

43.8

Notwithstanding

section 41, a proceeding in the Family Division shall be heard and decided without a jury.

2009 c16 s8

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Jurisdiction of court

43.9

(1)The Family Division has and may exercise the powers and duties possessed by the Trial Division in relation to, and has and may exercise exclusive jurisdiction in relation to, proceedings in the following matters taken in a judicial area or the expanded service area, other than by way of appeal:

(

a) formation of marriage;

(

b) divorce;

(

c) dissolution and annulment of marriage;

(

d) judicial separation and separation orders;

(

e) disputes in relation to property between spouses, former spouses, partners as defined in paragraph 35(

c) of the Family Law Act

or former partners and whether seeking relief by way of resulting trust, constructive trust, unjust enrichment, monetary award or otherwise;

(

f) applications under the Family Relief Act

(

g) declarations of status including validity of marriage and parentage of a child;

(

h) entitlement to support arising under the Family Law Act

or the Divorce Act

( Canada

(

i) enforcement of support orders including reciprocal enforcement of these orders;

(

j) parenting orders with respect to children;

(

k) adoption;

(

l) protective intervention matters relating to children under the Children, Youth and Families Act

(l.1)

protective intervention matters relating to adults under the Adult Protection Act, 2021;

(

m) interspousal and familial torts;

(

n) the consent to medical treatments of minors;

(

o) applications for the change of name of a minor;

(

p) the

interpretation, enforcement or variation of a marriage contract, cohabitation agreement, separation agreement or paternity agreement;

and

(

q) those other matters stated as being within the jurisdiction of the Family Division under

an Act of the province or of the Parliament of Canada.

(2) Nothing in this Act shall be interpreted to derogate from or suspend the powers of the Provincial Court of Newfoundland and Labrador outside a judicial area or in the expanded service area referred to in subsection 43.5(5) or to confer upon the Family Division jurisdiction outside a judicial area or the expanded service area which the Trial Division would not otherwise have.

(3) The jurisdiction of the Family Division may be exercised by a presiding judge of the Family Division or a judge of the General Division who has been designated by the Chief Justice under subsection 43.6(5).

(4) For the purpose of paragraph 266(b), sections 733.1, 810 and 811 of the Criminal Code

, a judge of the Family Division has the powers of a Provincial Court judge under the Criminal Code

in matters arising within a judicial area or the expanded service area.

(5) In relation to a proceeding otherwise before a judge of the Family Division, the judge has jurisdiction to vary or terminate an emergency protection order issued under

section 5 of the Family Violence Protection Act

2009 c16 s8 ; 2010 c29 s1 ; 2011 cA-4.01 s37 ; 2018 cC-12.3 s122 ; 2021 cA-4.02 s43 ; 2022 c4 s5

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Judge may transfer case

43.10

(1)Notwithstanding

section 43.9, a judge of the Family Division may, upon application, order that a proceeding started in the Family Division be transferred to the General Division or another appropriate court whether inside or outside a judicial area or the expanded service area referred to in subsection 43.5(5) where, in the opinion of the judge, there is a preponderance of convenience for the proceeding to be dealt with by that division or court.

(2) The provisions of this Act relating to the transfer of a proceeding to another division or court under subsection (1) shall apply, with the necessary changes, to that proceeding in the other division or court.

(3) Where a proceeding that should not have been started in the Family Division is started in that division, a judge of the Family Division may direct the proceeding to be transferred to the General Division or another court, and steps taken by a party in the proceeding and orders made before the transfer are valid and effective as if they were made in the division or court in which the proceeding ought to have been started.

2009 c16 s8

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Jurisdiction of court may be extended

43.11

Where a proceeding is started in the Family Division in a matter over which jurisdiction may be exercised in the Family Division and it is combined with a matter within the jurisdiction of the General Division, the Family Division may, with the consent of the parties, determine and dispose of the combined matters.

2009 c16 s8

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Standing in court

43.12

(1)Notwithstanding subsection 43.9(1), a proceeding may be started in the Family Division only where the applicant, the respondent or a child involved in the proceeding lives in a judicial area or the expanded service area

but a proceeding is not required to be started in the judicial area or the expanded service area by reason only that a respondent or a child involved in the proceeding, other than an applicant, lives in the area.

(2) A proceeding may be started in the Family Division where the applicant, the respondent or the child involved in the proceeding does not live in a judicial area or the expanded service area where a presiding judge of the Family Division and parties to the proceeding so consent.

2009 c16 s8

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Persons excluded

43.13

Where a judge of the Family Division is of the opinion

(

a) that evidence or information presented to the court would be seriously injurious or seriously prejudicial to

(

i) the person who is being dealt with in the proceeding, or

(ii)

a person under 16 years of age who is a witness in or is affected by the proceeding; or

(

b) that it would be in the best interest of the proper administration of justice to exclude the members of the public from the court room,

the judge may exclude a person other than counsel and witnesses from all or part of the proceeding where the judge considers that person's presence to be unnecessary to the conduct of the proceeding.

2009 c16 s8

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Investigation

43.14

(1)Upon application, which may be made without notice to another party, a judge of the Family Division may direct a person who is

(

a) a family counsellor;

(

b) a social worker;

(

c) a probation officer; or

(

d) another person approved by the court for the purpose,

to make a report on a party to a family matter before the division or other person who, in the opinion of the judge, is associated with the matter.

(2) A person directed to make a report under subsection (1) shall, in the manner that the judge may direct, present the report.

(3) A person shall not present to a judge the report made under subsection (1) unless, not less than 24 hours before the report is to be presented, the person serves a copy of the report upon the parties to the proceeding.

2009 c16 s8

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Title of documents

43.15

All originating applications, documents, notices and other papers issued out of or used in the Family Division of the court shall be entitled as required by the rules.

2009 c16 s8

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Membership in Rules Committee

43.16

Notwithstanding

section 54 ,

a presiding judge of the Family Division shall be a member of the Rules Committee of the Trial Division.

2009 c16 s8

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Court order binds Crown

43.17

The Crown is bound by an order or judgment issued by the Family Division.

2009 c16 s8

PART III

THE SUPREME COURT GENERALLY

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Coat of arms

The coat of arms of the court shall be the Royal Arms as displayed in the court houses of the Supreme Court.

1986 c42 s44

2017 cC37.002 s46

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Seal

(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.

1986 c42 s45

2013 c16 s2 ; 2017 cC37.002 s46

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Oaths

(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.

1986 c42 s46; 2001 cN-3.1 s2 ; 2016 c37 s3 ; 2017 cC37.002 s46

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Supernumerary judges

(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.

1986 c42 s47; 1993 c53 s17 ; 2017 cC37.002 s46

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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.

1995 c6 s1 ; 2001 cN-3.1 s2 ; 2016 c37 s4

2017 cC37.002 s46

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Precedence of judges

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.

1986 c42 s48; 2001 cN-3.1 s2 ; 2016 c37 s5 ; 2017 cC37.002 s46

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Powers of the Chief Justices

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,

the Chief Justices powers shall be exercised by the Associate Chief Justice, or if there is a vacancy in the Office of Associate Chief Justice or the Associate Chief Justice 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.

1999 c37 s1 ; 2001 cN-3.1 s2

2016 c37 s6 ; 2017 cC37.002 s46 ; 2022 c4 s6

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Vacancy

A vacancy in the court does not impair the court in the exercise of its powers.

1986 c42 s50; 2017 cC37.002 s46

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Judges

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.

1986 c42 s51; 2017 cC37.002 s46

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Transfer of proceeding

(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.

1986 c42 s52; 2017 cC37.002 s46

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Costs

(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.

1986 c42 s53; 2017 cC37.002 s46

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Rules committees

(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.

1986 c42 s54; 2001 cN-3.1 s2

2013 c16 s3

2017 cC37.002 s46

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Rules

(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.

1986 c42 s55; 1990 c14 s1; 1991 c39 s24

2013 c16 s4 ; 2017 cC37.002 s46

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Where procedure not provided for

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.

1986 c42 s56; 2017 cC37.002 s46

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Constitutional questions

(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.

1986 c42 s57; 2017 cC37.002 s46

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Council of judges

(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 the chairperson 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.

1986 c42 s58; 2017 cC37.002 s46

2022 c4 s7

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Conferences

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.

1986 c42 s59; 2001 cN-3.1 s2

2017 cC37.002 s46

PART IV

OFFICERS OF THE SUPREME COURT

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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 Chief Executive Officers duties where

(

a) the office of the Chief Executive Officer is vacant; or

(

b) the Chief Executive Officer is unable to fulfill Chief Executive Officers 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.

2013 c16 s5 ;

2017 cC37.002 s46 ; 2022 c4 s8

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Clerks, officers and employees

There may be appointed, in the manner provided by law, the clerks, officers and employees that the business of the Supreme Court requires.

2013 c16 s6

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Powers of staff who perform a registry function

60.1

(1)A clerk, officer or employee of the Supreme Court who performs a registry function has, by virtue of the clerks, officers or employees office, power to administer oaths or affirmations, take affidavits, issue process and take bail.

(2) A clerk, officer or employee of the Supreme Court who performs a registry function is, for the purpose of performing the clerks, officers or employees administrative duties, a justice of the peace.

(3) A person ceases to be a justice of the peace on the termination of the persons appointment as a clerk, officer or employee of the Supreme Court.

(4) A person is not entitled to additional remuneration, or to charge a fee, only because the person is a justice of the peace.

(5) The Justices Act

applies, with the necessary changes, to a person who is a justice of the peace by virtue of this section.

2013 c16 s7 ; 2022 c4 s9

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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 the clerk, officer or employee is designated as a taxing officer.

2013 c16 s7 ; 2017 cC37.002 s46 ; 2022 c4 s10

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Oath of office

60.3

The Chief Executive Officer and the clerks, officers and employees of the Supreme Court appointed under this Part 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".)

2013 c16 s

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Rep. by 2013 c16 s8

Rep. by 2013 c16 s8]

2013 c16 s8

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Duties of clerks, officers and employees

(1)The clerks, officers and employees of the Supreme Court appointed under this Part are under the direction of the Chief Executive Officer and shall perform the duties that may be assigned to them by the Chief Executive Officer.

(2) Notwithstanding subsection (1), the clerks, officers and employees of the Supreme Court appointed under this Part shall act under the direction of a judge in matters of judicial administration.

2013 c16 s9

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Rep. by 2013 c16 s10

Rep. by 2013 c16 s10]

2013 c16 s10

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Rep. by 2013 c16 s10

Rep. by 2013 c16 s10]

2013 c16 s10

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Execution of trust estate conveyance

(1)Where a trustee or other person acting in a fiduciary capacity obtains leave from the court to bid on a sale of the trust estate, and to become the purchaser, the court may in addition order that the conveyance of the trust estate be executed by a person named by the court.

(2) A deed executed under subsection (1) by a person named by the court is of the same effect as if it had been executed by the trustee or other person acting in a fiduciary capacity.

2013 c16 s11

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Discharge of liability

(1)The Consolidated Revenue Fund is liable to make good all sums required to discharge a liability that the Chief Executive Officer is liable to discharge in the capacity as Chief Executive Officer.

(2) Neither the Chief Executive Officer, nor the Consolidated Revenue Fund, is liable to discharge a liability

(

a) to which the Chief Executive Officer has not contributed; and

(

b) that the Chief Executive Officer could not have averted by the exercise of reasonable diligence.

2013 c16 s12

2022 c4 s11

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Accounts

(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.

2013 c16 s13 ; 2017 cC37.002 s46

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Fees

(1)All fees, commissions, allowances, levies and expenses under this or another Act payable to or receivable by the Supreme Court or a clerk, officer or employee of the Supreme Court appointed under this Part, shall be paid into the Consolidated Revenue Fund.

(2) Subsection (1) does not apply to a fee remitted under the Divorce Act

( Canada

2013 c16 s14

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Unclaimed money

(1)Money received by the Supreme Court to which, in the opinion of the Chief Executive Officer, following appropriate inquiry

(

a) there is no person legally entitled; or

(

b) the person legally entitled is either not known or the persons whereabouts are unknown,

may be paid by the Chief Executive Officer into the Consolidated Revenue Fund.

(2) Subsection (1) does not apply to money paid into the Supreme Court under the rules unless the court so orders.

2013 c16 s15 ; 2022 c4 s12

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Persons entitled to money

(1)A person who may be entitled to money paid into the Consolidated Revenue Fund under

section 69 may apply to the court for an order

(

a) that the person is legally entitled to that money; and

(

b) directing the payment to that person of the money and interest that are set out in the order.

(2) Where an order is made under subsection (1), the Chief Executive Officer shall take the necessary steps to have the money and interest owing to that person paid to the person from the Consolidated Revenue Fund.

(3) Money paid out under subsection (2) shall include interest owing from the date the money was paid into the Consolidated Revenue Fund.

2013 c16 s16 ; 2017 cC37.002 s46 ; 2022 c4 s13

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Trust funds

(1)The Chief Executive Officer shall establish and maintain one or more trust fund accounts.

(2) The Chief Executive Officer shall deposit in a trust fund account the money received by the court in trust under this or another Act, a regulation or rule made under this or another Act, a court order or another instrument or document.

(3) Money in a trust fund account is not public money for the purpose of the Financial Administration Act

(4) The interest rate payable on the trust funds shall be prescribed by the minister upon the recommendation of the Chief Executive Officer, and the amount of interest shall be calculated upon the minimum monthly balance of the money in the respective trust funds.

(5) The interest rate prescribed by the minister under subsection (4) may be a fixed rate of interest or may be an interest rate that is related to the interest rate earned by the trust funds or to another interest rate of general application.

(6) The Chief Executive Officer shall credit the interest at the rate prescribed and calculated under subsection (4) to the various accounts making up the trust funds monthly or on another date which an account is paid out by the Chief Executive Officer.

2013 c16 s1

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Rep. by 2013 c16 s18

[Rep. by 2013 c16 s18]

2013 c16 s

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[Rep. by 2013 c16 s18

[Rep. by 2013 c16 s18]

2013 c16

s18

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Rep. by 2013 c16 s18

[Rep. by 2013 c16 s18]

2013 c16 s

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Rep. by 2013 c16 s18

[Rep. by 2013 c16 s18]

2013 c16 s

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Rep. by 2013 c16 s18

[Rep. by 2013 c16 s18]

2013 c16 s

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Masters and taxing officers

The Chief Justice of Newfoundland

and Labrador may issue commissions under the seal of the Court of Appeal to those barristers that the Chief Justice of Newfoundland

and Labrador

thinks suitable to be masters and taxing officers of the Supreme Court.

1986 c42 s76; 2001 cN-3.1 s2

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Commissioners within the province

(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.

(2) A commissioner appointed under subsection (1)

(

a) may administer oaths and take affidavits, bail or recognizance within the province in or concerning a proceeding in the court; and

(

b) may, if empowered to do so, issue originating documents returnable to the court.

1986 c42 s77; 2001 cN-3.1 s2 ; 2017 cC37.002 s46

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Commissioners outside the province

(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.

(2) A commissioner appointed under subsection (1) may administer oaths and take and receive affidavits outside the province in or concerning a proceeding in the court.

(3) An oath, affidavit or acknowledgment taken before a commissioner appointed under subsection (1) is as valid and effectual as if it had been administered or made before a commissioner within the province or other competent person.

1986 c42 s78; 2001 cN-3.1 s2 ; 2017 cC37.002 s46

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Fees of commissioners

The fees to be taken by commissioners appointed under sections 78 and 79 are those set out in the rules.

1986 c42 s79

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Rep. by 1991 c29 s24

[Rep. by 1991 c39 s24]

1991 c39 s24

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Rep. by 1991 c39 s24

[Rep. by 1991 c39 s24]

1991 c39 s24

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Rep. by 1991 c39 s24

[Rep. by 1991 c39 s24]

1991 c39 s24

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Rep. by 1991 c39 s24

[Rep. by 1991 c39 s24]

1991 c39 s24

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Rep. by 1991 c39 s24

[Rep. by 1991 c39 s24]

1991 c39 s24

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Rep. by 1991 c39 s24

[Rep. by 1991 c39 s24]

1991 c39 s24

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Rep. by 1991 c39 s24

[Rep. by 1991 c39 s24]

1991 c39 s24

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Rep. by 2013 c16 s19

[Rep. by 2013 c16 s19]

2013 c16 s19

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Officers of the court

All clerks, officers and other employees and staff appointed under this Part shall be officers of the Supreme Court.

1986 c42 s87

PART V

RULES OF LAW

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Interpretation

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.

1986 c42 s88

2017 cC37.002 s46

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Equitable relief

If a plaintiff or petitioner claims to be entitled

(

a) to an equitable estate or right;

(

b) to relief, upon an equitable ground, against a deed, instrument or contract, or against a right, title or claim asserted by a defendant or respondent; or

(

c) to relief founded upon a legal right, that could have in the past been given in equity,

the court shall give to the plaintiff or petitioner the same relief as ought to have been given in a proceeding in equity for the same or similar purpose before December 31, 1889

, being the day that The Newfoundland

Judicature Act, 1889,

came into force.

1986 c42 s89

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Equitable relief

If a defendant

(

a) claims to be entitled to an equitable estate or right;

(

b) claims to be entitled to relief, upon an equitable ground, against a deed, instrument or contract, or against a right, title or claim asserted by a plaintiff or petitioner; or

(

c) alleges a ground of equitable defence to a claim of a plaintiff or petitioner,

the court shall give to an equitable estate, right, or ground of relief so claimed, or equitable defence so alleged, the same effect, by way of defence against the claim of a plaintiff or petitioner, as the court ought to have given if the same or similar matters had been relied on by defence in a proceeding instituted in equity for the same or similar purpose before December 31, 1889.

1986 c42 s90

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Equitable and legal relief

The court may grant to a defendant

(

a) in respect of an equitable estate or right, or other matter of equity; and

(

b) in respect of a legal estate, right or title claimed or asserted by that defendant,

all the relief against a plaintiff or petitioner that the defendant has properly claimed and that the court might have granted in a proceeding instituted for that purpose by the same defendant against the same plaintiff or petitioner.

1986 c42 s91

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Joined defendant

(1)Relief

(

a) claimed under

section 93;

(

b) related to or connected with the original subject matter of the proceeding; and

(

c) in a similar manner claimed against another person whether a party to the same proceeding or not,

may be granted against a person who has been served with written notice of the claim under a rule or an order of the court, and that might have been granted against that person if that person had been made a defendant to a proceeding instituted by the defendant seeking relief under

section 93 for a similar purpose.

(2) A person served with a notice under subsection (1) is considered to be a party to the proceeding with the same rights in respect of that person's defence against the claim as if that person had been sued in the ordinary way by a defendant seeking relief under

section 93.

1986 c42 s92; 1987 c41 s9

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Equitable estates

The court shall recognize and take notice of

(

a) all equitable estates, titles and rights; and

(

b) all equitable duties and liabilities,

appearing incidentally in the course of a proceeding in the same manner in which the Court in Equity would have recognized and taken notice of the equitable estates, titles, rights, duties and liabilities in a proceeding instituted before December 31, 1889

1986 c42 s93

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Prohibition and injunction

(1)A proceeding shall not be restrained by prohibition or injunction.

(2) had not been enacted may be relied on as a defence.

1986 c42 s94

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Stay of proceedings

(1)The court may direct a stay of proceedings pending before it.

(2) A person, whether or not that person is a party to the proceeding

(

a) who would have been entitled, if The Newfoundland

Judicature Act, 1889

had not been enacted, to apply to the court to restrain the prosecution of the proceeding; or

(

b) who may be entitled to enforce an order, contrary to which proceedings may have been taken,

may apply in a

summary way for a stay of the proceedings either generally or where necessary for the purposes of justice, and the court shall make the order that may be just.

1986 c42 s95

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Recognition of common law

Subject to sections 91 to 97 and other provisions of existing law

(

a) all legal claims and demands; and

(

b) all estates, titles, rights, duties, obligations and liabilities existing by the common law or custom, or created by statute,

shall be recognized and given effect to by the court as they would have been before December 31, 1889

1986 c42 s96

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Avoidance of multiplicity of actions

(

a) all matters in controversy between the parties may be completely and finally determined; and

(

b) multiplicity of proceedings concerning the matters may be avoided.

1986 c42 s97

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Equitable waste

An estate for life without impeachment of waste does not confer upon the tenant for life a legal right to commit equitable waste, unless an intention to confer such a right is expressly contained in the instrument creating the estate for life.

1986 c42 s98

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Merger by operation of law

There is no merger by operation of law only of an estate, the beneficial interest in which would not be considered to be merged or extinguished in equity.

1986 c42 s99

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Right of mortgagor

(1)A mortgagor entitled to the possession of land or the receipt of the rents and profits of land, where a notice has not been given by the mortgagee to take possession of the land or enter into receipt of the rents and profits of the land, may start a proceeding in the mortgagor's own name only

(

a) for the possession;

(

b) to distrain for the recovery of the rents or profits; or

(

c) to prevent or recover damages in respect of a trespass or other wrong.

(2) Subsection (1) does not apply where the proceeding arises upon a lease or other contract made by the mortgagor jointly with another person, unless the mortgagor starts a proceeding or distrains jointly with that other person.

1986 c42 s100

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Assignment of debts

(1)An absolute assignment by writing signed by an assignor of a debt or other legal thing in action,

(

a) that does not purport to be by way of charge only; and

(

b) of which express written notice has been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim the debt or thing in action,

is considered to be effectual in law, subject to all equities that would have been entitled to priority over the right of the assignee if The Newfoundland

Judicature Act, 1889

had not been enacted, to pass and transfer

(

c) the legal right to the debt or thing in action from the date of the notice;

(

d) all legal or other remedies of the debt or thing in action; and

(

e) the power to give a good discharge for the debt or thing in action without the concurrence of the assignor.

(2) A debtor, trustee or other person liable in respect of a debt or thing in action who has notice

(

a) that an assignment is disputed by the assignor of the debt or thing in action or a person claiming under the assignor; or

(

b) of another opposing or conflicting claim to the debt or thing in action,

may call upon the persons making the claims to interplead concerning their claims, or may, upon an order, pay the amount that that debtor, trustee or other person is liable for into court to await the determination of the court in respect of that amount.

1986 c42 s101

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Stipulations as to time

Stipulations in contracts as to time or otherwise that would have not been held to be of the essence of the contracts in a court of equity before December 31, 1889 shall receive the same construction and effect in the Court of Appeal or the Trial Division as they would have received in equity.

1986 c42 s102

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Mandamus or injunction

(1)A mandamus or an injunction may be granted, or a receiver appointed, by an order of the court, in all cases in which it appears to the court to be just or convenient that the order should be made.

(2) (3) An injunction that is asked for, either before, at, or after the hearing of a proceeding, to prevent a threatened or apprehended waste or trespass may be granted by the court

(

a) whether the person against whom the injunction is sought is or is not in possession under a claim of title or otherwise;

(

b) whether that person, if out of possession, does or does not claim a right to do the act sought to be restrained under a colour of title; or

(

c) whether the estates claimed by both or either of the parties are legal or equitable.

1986 c42 s103

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Custody questions

In all questions relating to the custody and education of minors, the rules of equity prevail.

1986 c42 s104

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Equity prevails

In all matters that are not particularly set out in this

Part in which there is a conflict or variance between the rules of equity and the rules of common law, the rules of equity prevail.

1986 c42 s105

PART VI

PROBATE AND ADMINISTRATION

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Definitions

In this Part

(a)

"court" means the Trial Division, the court or a judge of the court, whether sitting in court or in chambers; and

(b)

"foreign grant" means a grant of probate or administration or other document having the same general effect that letters of probate and administration have in this province that has been granted by a court in

(

i) a province

of Canada

(ii)

the United Kingdom

or a British possession, colony or dependency, or

(iii)

a member nation of the Commonwealth,

under subsection 132(5).

1986 c42 s106

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Rep. by 2010 c29 s3

[Rep. by 2010 c29 s3]

2010 c29 s3

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Application

(1)An application for letters of probate or administration or for the resealing of a foreign grant shall be by petition to the court.

(2) The petition shall be verified by affidavit.

(3) Five days' notice of the petition shall be posted in the registry but the court may prescribe a different period or method of notice or may dispense with the requirement of notice.

1986 c42 s108

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Form

Letters of probate or administration shall be in the form prescribed by the rules.

1986 c42 s109

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Inventory and valuation

(1)A petition for letters of probate, administration, guardianship or for the resealing of foreign grants in the court shall have annexed to it an inventory and valuation of the estate within the province.

(2) The inventory and valuation shall be verified by affidavit.

1986 c42 s110

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Certificates from registry

A grant of letters of probate or administration may not be made until the following certificates have been received from the registry:

(

a) a certificate that a caveat has not been entered opposing the grant of letters of probate or administration; and

(

b) a certificate that no previous grant has been made or that a previous grant has been made in which latter case the certificate shall provide particulars of the previous grant.

2013 c16 s20

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Caveat

A person who intends to oppose the issuing of a grant of letters of probate or administration shall, either personally or by the persons solicitor, enter a caveat in the registry.

1986 c42 s112

2022 c4 s14

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Where caveat or objection

(1)The court shall require those of the parties concerned as it considers necessary to appear and plead to a statement of claim for a grant of letters of probate or administration where

(

a) a caveat to an application for a grant has been entered before the issuing of letters of probate or administration; or

(

b) in the opinion of the court, sufficient objection is made against a grant of letters of probate or administration.

(2) The court, after default or trial, may make the order that appears just.

1986 c42 s113

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Proof in solemn form

(1)A will may be required to be proved in solemn form on the petition verified by affidavit

(

a) of a person claiming as executor or having or wishing to have execution of the will; or

(

b) of a person interested in the will or in the estate of the testator.

(2) The court shall, upon a petition made under subsection (1), order a proceeding to be started to obtain probate in solemn form, and may direct who will be the parties to the proceeding.

1986 c42 s114

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Other proof

(1)An affidavit may be obtained from a person who may have been present at the execution of a will where

(

a) both the signing witnesses to the will are dead; or

(

b) an affidavit cannot be obtained from either of the signing witnesses.

(2) Where an affidavit cannot be obtained under subsection (1), affidavits shall be provided to the court stating that no affidavit can be obtained under subsection (1), and

(

a) setting out evidence of the handwriting of the testator and the signing witnesses; or

(

b) setting out evidence as to other circumstances that may raise a presumption in favour of the execution of the will.

1986 c42 s115

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Production of testamentary document

(1)The court may, whether a proceeding is or is not pending with respect to probate or administration, order a person to produce and bring into the registry, or otherwise as the court may direct, a paper or writing being or purporting to be testamentary that may be under the control of that person.

(2) Where it appears to the court that there are reasonable grounds for believing that a person has knowledge of a writing or paper purporting to be testamentary, the court may direct that person to attend the court to be examined orally, or upon interrogatories respecting the writing or paper.

(3) A person ordered to produce and bring into the court a paper or writing under subsection (1) shall produce and bring into court that paper or document if it is in the possession or control of that person.

(4) A person directed to attend the court under subsection (2) shall answer the questions and interrogatories put to that person.

(5) A person who does not obey an order or direction of the court under subsection (3) or (4) or does not answer questions or interrogatories under subsection (4) is subject to the same process of contempt as that person would have been subject to if that person had been a party to a proceeding in the court and had made the default.

(6) The costs of an order made under this

section are in the discretion of the court.

1986 c42 s116

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Discretion as to grant

Under special circumstances, where it appears to the court to be just or expedient, letters of probate or administration may be granted to a person other than the person entitled ordinarily or by law to the grant of probate or administration.

1986 c42 s117

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Security

(1)Letters of administration may not be granted, or a guardian or receiver of property appointed, until security is given by the person seeking appointment as administrator, guardian or receiver for the faithful discharge of the persons duties, unless the court otherwise orders.

(2) Subsection (1) does not apply to a trust company authorized to do business in the province or to the public trustee.

1986 c42 s118

2013 c16 s21 ; 2022 c4 s15

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Appointment of administrator pending action

(1)The court may appoint an administrator of the estate of a deceased person pending a proceeding concerning the validity of the deceased's will, or for obtaining, recalling or revoking letters of probate or administration.

(2) An administrator appointed under subsection (1) has all the rights and powers of an administrator appointed in the usual manner except the right to distribute the residue of the estate.

(3) An administrator appointed under subsection (1) is subject to the control of the court and shall act under its direction.

1986 c42 s119

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Effect of grant

Following a grant of letters of administration a person may not act as executor of the estate of a deceased or take an action as to the estate comprised in or affected by the grant of letters of administration until the grant has been recalled or revoked.

1986 c42 s120

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Removal of executor

Upon the application of a person interested in the estate of a deceased person, the court may, by order, remove an executor or administrator upon the same grounds that the court may remove a trustee, and may appoint some other person to act in the place of the executor or administrator so removed.

1988 c54 s14

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Not a sole executor

(1)Where the executor or administrator removed under

section 123 is not a sole executor or administrator, the court need not appoint a person to replace the executor or administrator.

(2) If an appointment is not made to replace an executor or administrator, the rights of the executor or administrator removed pass to the remaining executor or administrator.

1986 c42 s122

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Executor of appointed executor

The executor of a person appointed as an executor under

section 123 does not, by virtue of the appointment, become executor of that estate.

1986 c42 s123

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Executor absent from province

(1)Where an executor or administrator to whom letters of probate or administration have been or may be granted has been absent from the province for 1 year and has not appointed a responsible attorney to act for and represent that executor or administrator, the court may, on petition verified by affidavit showing to the satisfaction of the court that the interests of the parties concerned in the estate are or will be prejudiced by the absence, appoint an administrator with the will annexed or an administrator to complete the administration of the estate.

(2) An administrator appointed under subsection (1) has, during the absence of the executor or administrator and on giving security sufficient to the court, the same power as the absent administrator or executor would have if the administrator or executor were present in the province.

(3) A person wishing to contest the appointment of an administrator under this

section shall follow the procedures set out in sections 113 and 115.

1986 c42 s124

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Renunciation by executor

Where a person renounces probate of the will of which that person is appointed executor or 1 of the executors

(

a) the rights of that person to act as executor stop; and

(

b) the representation to the testator and the administration of the estate of the testator may proceed as if that person had not been appointed executor.

1986 c42 s125

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Good faith payments

A person making or permitting to be made payments in good faith or a transfer based upon letters of probate or administration is indemnified and protected in doing so, notwithstanding a defect or circumstance affecting the validity of the grant of the letters of probate or administration.

1986 c42 s126

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Filing of accounts

A person to whom letters of probate or administration are granted shall, within 1 year after the issuing of the grant, file in the registry

(

a) a full inventory and valuation of the estate of or to which the deceased was possessed or entitled to at the time of the death of the deceased;

(

b) a full statement of the estate that has come into that person's hands, or into the hands of another person by that person's order;

(

c) a full statement of the disbursements made by that person on account of the funeral expenses, debts and estate; and

(

d) a full statement of the estate then outstanding or undisposed of.

1986 c42 s127

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Proof of debts

(1)Creditors of the estate of a deceased person shall prove their debts immediately after the grant of letters of probate or administration.

(2) Debts may be proven by

(

a) an affidavit showing particulars of the debt; or

(

b) an account, the correctness of which is certified by a commissioner of the court as having been sworn before that commissioner.

(3) The costs of proof of a debt under subsection (2) shall be met by the creditor.

1986 c42 s128

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Notification of certain creditors

(1)When the executor or administrator is prepared to distribute the estate, the executor or administrator shall give notice to the persons whose claims to be creditors have been notified to the executor or administrator but not established to the executors or administrators satisfaction that, if they do not establish their claims to the satisfaction of the court within the time set out in the notice, the executor or administrator will proceed to distribute the estate without regard to their claims.

(2) Following the expiration of the time set out in the notice, or a further time that may be granted to a creditor by the court, the property of the deceased may be distributed by the executor without regard to the claims of the creditors notified under subsection (1) who have not proven their claims to the satisfaction of the court.

1986 c42 s129

2022 c4 s16

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Resealing of foreign grants

(1)Upon application made under

section 110 together with a copy of the foreign grant, the court may order that the foreign grant be sealed with the seal of the court.

(2) Where a foreign grant has received the seal of the court under subsection (1), the foreign grant has the same effect as letters of probate or administration granted in this province.

(3) Before sealing a foreign grant under this section, the court

(

a) may require evidence as to the domicile of the deceased;

(

b) may, in the case of letters of administration, require the giving of security in an amount sufficient to cover property in the province to which the foreign grant relates; and

(

c) may require, on the application of a creditor of the estate, that adequate security be given for the payment of debts due from the estate to creditors living in the province.

(4) A duplicate of a foreign grant sealed with the seal of the court granting it, or a copy certified as correct under the authority of that court, is a sufficient copy for the purposes of subsection (1) and has the same effect as the original.

(5) The Lieutenant-Governor in Council on being satisfied that the legislature of a province, British possession, colony or dependency or a Commonwealth nation has made adequate provision for the recognition in that jurisdiction of probates and letters of administration granted by the Supreme Court may by order direct that this

section shall, subject to exceptions and modifications specified in the order, apply to that jurisdiction.

1986 c42 s130

PART VII

ATTACHMENT, EXECUTION AND DISTRAINT

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Definitions

In this Part "property" includes debts, effects, goods or things in action.

1986 c42 s131

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No arrest

A person may not be arrested and held to bail in a civil proceeding.

1986 c42 s132

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Rep. by 1996 cJ-1.1 s194

[Rep. by 1996 cJ-1.1 s194]

1996 cJ-1.1 s194

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Rep. by 1996 cJ-1.1 s194

[Rep. by 1996 cJ-1.1 s194]

1996 cJ-1.1 s194

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Particulars of rent

In all cases of distress for rent, the person making the distress

(

a) is to deliver to the person in possession of the property; or

(

b) where no person is found in possession, is to attach to a conspicuous part of the property,

particulars in writing of the rent demanded specifying the amount, the time when it arose and the person by whom or by whose authority the distress is made.

1986 c42 s135

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Rep. by 1998 c6 s16

[Rep. by 1998 c6 s16]

1998 c6 s16

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Distress of goods

In all cases of distress the person whose property is distrained and who wishes to recover that property may apply to the Trial Division for a recovery order under the rules.

1986 c42 s137

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Rep. by 1996 cJ-1.1 s194

[Rep. by 1996 cJ-1.1 s194]

1996 cJ-1.1 s194

PART VIII

TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

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Transitional Provisions

(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.

986 c42 s139; 2001 cN-3.1 s2

2017 cC37.002 s46

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Rep. by 2017 cC37.002 s46

[Rep. by 2017 cC37.002 s46]

2017 cC37.002 s46

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Rep. by 2017 cC37.002 s46

[Rep. by 2017 cC37.002 s46]

2017 cC37.002 s46

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Rep. by 2017 cC37.002 s46

[Rep. by 2017 cC37.002 s46]

2017 cC37.002 s46

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Rep. by 2017 cC37.002 s46

[Rep. by 2017 cC37.002 s46]

2017 cC37.002 s46

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Rep. by 2017 cC37.002 s46

[Rep. by 2017 cC37.002 s46]

2017 cC37.002 s46

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Rep. by 2017 cC37.002 s46

[Rep. by 2017 cC37.002 s46]

2017 cC37.002 s46

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Rep. by 2017 cC37.002 s46

[Rep. by 2017 cC37.002 s46]

2017 cC37.002 s46

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Rep. by 2017 cC37.002 s46

[Rep. by 2017 cC37.002 s46]

2017 cC37.002 s46

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Rep. by 2017 cC37.002 s46

[Rep. by 2017 cC37.002 s46]

2017 cC37.002 s46

Queen's Printer

Document details

Collection	Newfoundland and Labrador — Consolidated Statutes
Citation	S.N.L. 1990, c. J-4
Type	statute
Volume / chapter	j04
Language	en
Format	htm
Source	PROVINCIAL
Identifier	7c2e3e3983ad8e159c8bf35b7159165d3422483c

Source file is stored in the law ingest library (htm).