Bill 96 — Third Session, 16Th Legislature, 19 Elizabeth Ii the Legislative Assembly of Alberta Bill 96 An Act To Amend the Small Clain\S Act the Attorney General (Legislature 16, Session 3)

L16 S3 4788

Alberta — Bills

1970 Bill 96 Third Session, 16th Legislature, 19 Elizabeth II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 96

An Act to amend The Small Clain\S Act THE ATTORNEY GENERAL First Reading .......................... ... . Second Reading ............................ . Third Reading ............................. . Printed by L. S. Wall, Queen's Printer, Edmonton

BILL 96 1970

An Act to amend The Small Claims Act (Assented to , 1970) HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Alberta, enacts as follows: 1. The Small Claims Act is hereby amended.

Section 5 is amended (

a) by striking out subsections (1) and (2) and by sub stituting the following: 5.

(1) A magistrate has jurisdiction to hear and adjudicate upon any matter under this Act within the Province of Alberta.

(2) An action or matter shall be commenced, carried on and heard in the judicial district in which the defendant or one of the defendants is then dwell ing or carrying on business or in the judicial dis trict in which the cause of action arose. (

b) by striking out subsection (4).

Section 8 is amended (

a) by striking out subsection (1) and by substituting the following: 8.

(1) The plaintiff shall, before the summons is issued, deposit with the magistrate the sum specified in the tariff. (

b) by striking out subsection (3).

Section 9, subsection (3) is amended by striking out the words "upon application,".

Section 11, subsection (1), clause (

a) is amended by striking out the words "by any adult literate person".

Explanatory Notes 1. This Bill amends

chapter 93 of the Statutes of Alberta, 1968.

Section 5 presently reads: 5.

(1) A magIstrate has jurisdiction to try and adjudicate upon any matter under ,this Act only within the limits of the judicial district in which he resides.

(2) A magistrate does not have jurisdiction to try or to adjudicate upon any matter under this Act un'less, at the time the summons is issued, the defendant or ·one ,of the defendants resides or carries on business within the judicial distrkt in which the magistrate resides.

(3) Where a defendant is a munkipal or school authority the claim may be tried in any judicial district (

a) in which all or any part of the area of that authority is included, or (

b) in which any other defendant resided or carried on business at the time the summons was issued.

(4) Notwithstanding anything in this section, any magistrate may, upon the request of the Att:orney General, try and adjudicate upon any matter under this Act in any judicial district in which at the time of the issue of the summons the defendant ,or some one of the defendants resided or carried on business, without regard to the place of residence of the magistrate.

Section 8, subsections (1) to (3) presently read: 8.

(1) The plaintiff shalll before the summons is issued, deposit with the magistrate the sum of $4 by way 'of a deposit on the taxable fees of th magistrate and his bailiff.

(2) When the defendant lives farther than 20 miles from the place of trial the magistrate in his discretion may, before the summons is issued, require the plaintiff to pay as a deposit an additional sum calculated at the pres·cribed rate a mile for the number of milles return between the defendant's residence and the place of trial.

(3) The amount of the total deposit with the particulars thereof shall be endorsed on the summons and copy by the magistrate, and if it is not actually paid and S'0 endorsed the summons and the service thereof are void.

Section 9, subsection (3) presently reads:

(3) Where a summons is not served within the time prescribed by this section, a magistrate may upon application, issue a new summons in accordance with this Act. 5. Service of documents. Personal service can now be effected by other than literate adult persons.

Section 13 is struck out and the following is substi tuted: 13. Service may be effected on any day including Sun day.

Section 15 is amended by striking out subsection (1) and by substituting the following subsection: 15.

(1) A defendant may, at any time before the date of the hearing, pay to the magistrate a sum of money to satisfy the plaintiff's claim and the costs.

Section 17, subsection (1) is amended by striking out the words ", upon application,".

Section 18, subsection (2) is amended by striking out clause (a).

Section 22 is amended (

a) as to subsection (1) by striking out the words "A clerk of the court in which a cause is pending" and by substituting the words "A magistrate be fore whom a cause is pending or his clerk", (

b) as to subsection (2) by striking out the words "clerk of the court" and by substituting the words "magistrate or his clerk".

Section 24 is amended by striking out the words "such costs as the magistrate orders" and by substituting the words "costs in the discretion of the magistrate".

Section 26 is amended as to subsection (1) by adding at the end thereof the words "or may sign judgment by default on production of such evidence as the magistrate considers sufficient". 13. The following

section is added after

section 27: 27a. A magistrate may, upon such terms as he thinks just, set aside or vary any judgment entered by default.

Section 30, subsection (3) is amended by striking out the words "magistrate resides" and by substituting the words "action was tried".

Section 34 is struck out and the following is substituted: 2

Section 13 presently reads: 13. The service of any document on a Sunday or ,on any other holiday is void.

Section 15, subsection (1) presently provides as follows: 15.

(1) A defendant may, not . later ,than eight days before ~he date of the hearing, pay to the magIstrate a sum of ~oney to satIsfy the plaintiff's claim and the costs of summons and serVIce. 8. Adjourning trial. The presiding magistrate will now be able to adjourn the trial on his own motion. 9. Consequential from amendment to

section

Section 18, sub section (2) presently reads:

(2) Where a trial has commenced and the presiding magistrate is unable for any reason to oomplelte the pr,oceedings, (

a) any magistrate residing in the same judicial di'strict as the first magistrate, or (

b) any magistrate requested to act by the Attorney General, may take up the proceedings at the point at which they have been left ,off by the first magistrate, and the succeeding magistrate, accord ing to his opinion as to what is required to· ensure justice, (

c) may continue the trial to completion, .or (

d) may recommence the trial.

Section 22 presently reads: 22.

(1) A clerk of the court in which a cause is pending, may at any time take an admission, indebtedness or liability, as the ·case may re quire, (

a) in the case of a c'laim, from a defendant, or (

b) in the case of a counterclaim, from a plaintiff and up·on the production of the admissi,on to the magisltrate and proof thereof by the oath of the clerk, the magistrate may order that judg ment be entered thereon.

(2) An admission taken pursuant to subsection (1) shall be in the writing of the pers,on making it or the writing of some pers-on acting ,on the direction of the person making it and be witnessed by the clerk of the court. 11. Costs on withdrawal of claim.

Section 26, subsection (1) presently reads: 26.

(1) Where a defendant fails to appear for trial the magistrate may in his discretion allow the plaintiff to prove his claim in the same manner that a defendant may prove a counterdaim under subsection (2) of

section 25, or the magistrate may adjourn ,the trial to a later date. 13. Opening up default judgment. 14. This is consequential to the amendment to

section 5. Sub section (3) presently reads:

(3) The person in whose favour judgment is given, after paying the prescribed fee, may file the certificate of judgment in the office of the district court in the judicial district in which the magistrate resides and thereupon it shall be entered as a judgment of the court, and execution and garnishee summons may be issued thereon according to the ordinary procedure of the district court. IS. Magistrate's record. Transcripts will no longer be required for appeals. 2

34. Upon being served with a notice of appeal, a magis. trate shall forward to the clerk of the district court all rna. terial in his possession pertaining to the action. 1:6.

Section 35 is amended (

a) by striking out subsection (2), (

b) as to subsection (3) by striking out the words "or (2)".

Section 39 is struck out and the following is sub. stituted: 39. The appeal shall be heard as a trial de novo unless otherwise ordered by the court.

Section 44 is amended by striking out the words "keep a record" and by substituting the words "cause a record to be kept". 19. This Act comes into force on the day upon which it is assented to. 3

16. This amendment is consequential to the amendment to sec tion

Section 35 presently reads: 35.

(1) Where an appellant fails to comply with the requirements of subsection (1) ,of

section 33, the appeal is automatical~y dismissed.

(2) Where an appellant fails to prO'vide a transcrip,t as required by

section 34, the appeal court may upon application dismiss the appeal unless it is of the opinion that the appellant is not responsible for failing to do so.

(3) When an appeal is dismissed pursuant to subsection (1) or (2), Ithe appeal eourt may make such order as to' costs as it considers just. 17. This also arises from the amendment to

section

Section 39 presently reads: 39.

(1) Up'on the hearing of the appeal the record of the evidence which the appellant has provided pursuant to

section 34 shall be read and the matter in appea'l shall be decided upon such evidence.

(2) Notwithstanding subsection (1), where the district court is satisfied that the evidence available from the trial magistrate's court i.s not oomplete, the count shall order that the appeal be heard as a trial de nO'vo.

Section 44 presently reads: 44. A magistrate shall keep a record of al'l processes issued by him under this Act with the date and names of the parties and the judg ments rendered, as well as a statement of all moneys received and the applica;tion thereof. 3 Title: 1970 (16th, 3rd) Bill 96,

An Act to amend The Small Claims Act

Document details

Collection	Alberta — Bills
Citation	L16 S3 4788
Type	bill
Volume / chapter	L16 S3 4788
Language	en
Format	json
Source	PROVINCIAL
Identifier	9e0967c21b78c5db63f9242391adcd64fe8fe1c2

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