Second

Session, 48th General Assembly

Elizabeth II, 2017

BILL 3

COURT OF APPEAL ACT

Received and Read the First Time .................................................................................................

Second Reading .................................................................................................................................

Committee ..........................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

ANDREW PARSONS, Q.C.

Minister of Justice and Public Safety and Attorney

General

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would enact the Court of Appeal Act to establish the Court

of Appeal of Newfoundland and Labrador as a

separate court which is independent from the Supreme Court of Newfoundland and Labrador . Currently, the Court of Appeal is a division of

the Supreme Court of Newfoundland and Labrador

by virtue of the Judicature Act.

The jurisdiction of both the Court of

Appeal and the Supreme Court of Newfoundland and Labrador

would be unaffected by the Bill.

A BILL

AN ACT RESPECTING AN INDEPENDENT COURT OF

APPEAL IN THE PROVINCE

Analysis

Short title

Definitions

PART

THE COURT

Continuation of court

Court

Chief Justice

PART

JURISDICTION AND POWERS OF THE COURT

Appellate jurisdiction

Jurisdiction generally

Powers of court

Further powers

PART

III

JUDGES

Precedence of judges

Powers of the Chief Justice

Supernumerary judges

Additional judge

Oaths

Quorum

Single judge

Ineligibility of judge

Transfer of judge

Judges of Supreme Court

Judge ceases to hold office

Vacancy

Council of judges

Conferences

PART

REFERENCE

Reference

Certification of opinion

Notice to Attorneys General

Reference under agreement

Notice to interested persons

Appointment of counsel

Evidence

Procedure

PART

THE COURT GENERALLY

Title of documents

Coat of arms

Seal

Transfer of proceedings

Costs

Rules committees

Rules

Where procedure not provided for

Constitutional questions

PART

OFFICERS OF THE COURT

Clerks, officers and employees

Oath of office

Application of

Part IV, Judicature Act

PART

VII

RULES OF LAW

Application of

Part V, Judicature Act

PART

VIII

TRANSITIONAL, CONSEQUENTIAL AND COMMENCEMENT

Transitional

RSNL1990 cJ-4 Amdt.

SNL2016 c37 Amdt.

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Court of Appeal

Act .

Definitions

2. In

this Act

(a) "affidavit" includes a solemn

declaration, or statutory declaration, and an agreed statement of facts;

(b) "Chief Executive Officer" means the

Chief Executive Officer appointed under

section 59.1 of the Judicature Act ;

(c) "Chief Justice" means the Chief

Justice of Newfoundland and Labrador ;

(d) "court" means, unless the context

indicates otherwise, the Court of Appeal of Newfoundland

and Labrador referred to in

section 3 or a

judge or the judges of that court;

(e) "judge" means a judge of the court;

(f) "judgment" means the disposition of

a proceeding by the court and in the case of a panel of judges, the disposition

by a majority of those judges;

(g) "minister" means the minister

appointed under the Executive Council Act

to administer this Act;

(h) "oath" includes solemn affirmation

and statutory declaration;

(i) "order" means

(

i) an order of the court stating the judgment of

the court,

(ii) an order of the court made in the exercise of

its jurisdiction under

section 6 , and

(iii) where the context requires, an order of the

Supreme Court;

(j) "party" means a person served with

notice of, or entitled to attend a proceeding, even if that person is not named

in the record;

(k) "proceeding" means

(

i) a civil or criminal appeal,

(ii) a reference,

(iii) any matter brought to the court under

an Act

of the Legislature or Parliament of Canada or the rules, or

(iv) an application respecting a matter referred to

in subparagraphs (

i) to (iii);

(l) "reference" means a reference to the

court under

section 24 ;

(m) "registry" means the registry of the

court;

(n) "rules" means the rules made under

section 38 and includes

the forms in those rules; and

(o) "Supreme Court" means the Supreme

Court of Newfoundland and Labrador as

continued in the Judicature Act .

PART I

THE COURT

Continuation of

court

3 . The

appeal division referred to as the Court of Appeal in

Part I of the Judicature Act as it existed before the

coming into force of this Act is continued as a superior court of civil and

criminal jurisdiction to be called the Court of Appeal of Newfoundland

and Labrador .

Court

4 .

(1) The court consists of

the following:

(

a) the Chief Justice, who shall also be the Chief

Justice of the court;

(b) 5 other judges, who shall be called Justices of

Appeal;

(

c) any former Chief Justice who has elected under

section 13 to continue as a puisne judge for so long as he or she continues;

and

(

d) as many judges who have elected supernumerary

status under

section 12 as are in office.

(2) Subject to the rules, the court shall sit in

the City of St. John's and may sit in other locations within the province at the places and

times that the Chief Justice directs.

(3) Each judge of the court shall maintain his or

her principal residence in the City of St.

John's or within an area of 50

kilometres by road from that city.

Chief Justice

5 . Nothing

in this Act derogates from the powers inherent in the Office of the Chief

Justice.

PART II

JURISDICTION AND POWERS OF THE COURT

Appellate jurisdiction

6 .

(1) Subject to

section

7 and the rules made under

section 38 , an appeal

lies to the court

(

a) from an order of the Supreme Court or an order

of a judge of the Supreme Court; and

(

b) in a proceeding where jurisdiction is given to

it under

an Act of the Legislature or the Parliament of Canada.

(2) Where another Act of the Legislature or the

Parliament of Canada provides that there is no appeal, or a limited right of

appeal, from an order referred to in subsection (1), that Act prevails.

(3) The court shall have and exercise appellate

jurisdiction, with the original jurisdiction that may be necessary or

incidental to the determining of any proceeding before the court, with

appellate jurisdiction in civil and criminal proceedings, and jurisdiction and

power to hear and determine appeals respecting an order or decision of a judge

of the Supreme Court.

Jurisdiction generally

(1) For the hearing and determination

of a proceeding, and the amendment, execution and enforcement of an order, and

for the purpose of every other authority expressly or implicitly given to the

court, by this Act or another Act of the Legislature or the Parliament of Canada,

the court has the power, authority and jurisdiction vested in the appeal

division referred to as the Court of Appeal in

Part I of the Judicature Act as it existed before the

coming into force of this Act, including that power, authority and jurisdiction

conferred

(

a) by the Imperial Statute passed in the 5th year

of the reign of His late Majesty King George the 4th, entitled "

An Act for the better administration of

justice in Newfoundland , and for other purposes ";

(

b) by the Royal Charter or Letters Patent under

the Great Seal, issued by virtue of the Imperial Statute, dated September 19th,

1825, in the 6th year of His late Majesty's reign; and

(

c) by a law in force in the province.

(2) The inherent jurisdiction of the appeal

division referred to as the Court of Appeal in

Part I of the Judicature Act as it existed before the

coming into force of this Act is continued in the court and is unaffected by the coming into force of

this Act.

(3) The court has all the inherent powers of a

superior court at common law.

Powers

of court

(1) The court may give any judgment which ought to have been pronounced,

and may make further or other orders that it considers just.

(2) The powers of the court include the following:

(

a) the court may draw inferences of fact not

inconsistent with any finding of fact that is not set aside and, if satisfied

that there is before it all the material necessary for finally determining the

matters in controversy, or any of them, or for awarding any relief sought, may

give judgment accordingly;

(

b) notwithstanding paragraph (a), if the court is

of the opinion that there is not sufficient material before it to enable it to

give judgment, the court may direct the appeal to stand over for further

consideration, and may direct that those issues or questions of fact be tried

and determined, and those accounts be taken, and those inquiries be made, as

are considered necessary to enable it, on those further considerations, to

dispose finally of the matters in controversy;

(

c) the court may, in its discretion, receive

further evidence upon questions of fact by oral examination in court, by affidavit,

or by deposition taken before an examiner or a commissioner; and

(

d) where judgment has been given, a judge may, on

terms the judge considers appropriate, order that proceedings, including

execution, in the cause or matter from which the appeal was taken be stayed in

whole or in part.

(3) The powers conferred by subsection (2) may be

exercised

(

a) notwithstanding that the appeal is as to part

only of the judgment, order, decision, or verdict; and

(

b) in favour of all or any of the parties,

although they have not appealed.

Further powers

9. For

all the purposes of, and incidental to, the hearing and determination of any

cause or matter, and the amendment, execution, and enforcement, of any judgment

or order, and for the purpose of every other authority expressly or impliedly given to it by this Act, the

court has the power, authority, and jurisdiction, vested in the court appealed

from.

PART III

JUDGES

Precedence of

judges

10 . The

judges of the court and Supreme Court have rank, precedence and seniority in

the following order:

(

a) the Chief Justice;

(

b) the Chief Justice of the Supreme Court;

(

c) the Associate Chief Justice of the Supreme

Court;

(

d) the judges of the court in the order of their

seniority of appointment to the court; and

(

d) the judges of the Supreme Court in the order

of their seniority of appointment to the Supreme Court.

Powers of the

Chief Justice

11 . Where

there is a vacancy in the office of the Chief Justice or the Chief Justice

(

a) is absent from the province;

(

b) is unable to act; or

(

c) requests it,

his or her powers shall be exercised by

the next senior judge of the court who is able to act in the place of the Chief

Justice.

Supernumerary

judges

(1) For

each office of judge established under

section 4 , there is an additional office of

supernumerary judge, which a judge may elect to hold upon compliance with the

Judges Act (Canada) and upon meeting the qualifications required under that

Act.

(2) A judge who elects to hold the office of

supernumerary judge shall continue to be called a Justice of Appeal.

(3) Subsection 4 (3)

does not apply to a judge who elects to hold the office of supernumerary judge.

Additional judge

13. For

the purpose of

section 32 of the Judges Act (Canada), there shall be

established, for the Office of Chief Justice of Newfoundland and Labrador an

additional office of judge as is from time to time required, to be held by a

Chief Justice who has elected under the Judges Act (Canada) to perform

only the duties of a judge.

Oaths

14 .

(1) The

Chief Justice and every other judge shall, before entering upon the duties of

the office of judge, take and sign the Oath of Allegiance and the Judicial Oath

referred to in the Oaths of Office Act.

(2) The oaths referred to in subsection (1) shall

be administered by a judge.

Quorum

(1) Three

judges constitute a quorum of the court for the purpose of hearing an appeal.

(2) T he judgment of the

majority of the court sitting as a quorum is the judgment of the court.

(3) The

death, withdrawal, resignation, removal or inability to act of a judge after

the beginning of a hearing shall not affect the jurisdiction of the court if

the proceeding is finally disposed of by not fewer than 2 judges, in which case

their judgment shall have the same effect as if made by the whole court.

Single judge

16 . In

a proceeding pending in the court, an application incidental to it, not

including the final determination of the appeal, may be heard and disposed of

by a single judge of the court.

Ineligibility of judge

17. A

judge is ineligible to sit on the hearing

of an appeal from a judgment or order made by that judge.

Transfer of judge

18 . Where

a judge of the court is unable to sit or take

part in consequence of

section 17 , or from illness or other reason, or in case of a

vacancy in the court, the Chief Justice of the Supreme Court shall upon the

request of the Chief Justice appoint a judge of the Supreme Court to sit and

act in the place of the other judge, or in the place of a judge whose office

has become vacant, and it is the duty of a judge so appointed to attend and,

while so sitting and acting, that judge has all the jurisdiction, power and

authority of a judge of the court.

Judges of Supreme

Court

19. A

judge of the Supreme Court is by virtue of the office a judge of the court

where that judge has been appointed under

section 18

for the purpose of hearing a proceeding and while so acting has in all respects

equal jurisdiction, power and authority.

Judge ceases to

hold office

20 . A

judge who ceases to hold office may, within 6 months after ceasing to hold

office, give judgment in a proceeding previously heard and completed before

that judge as if that judge had not ceased to hold office.

Vacancy

21 . A

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

Council of judges

22. A

council of judges may meet at the call of the Chief Justice, who shall be the

chairperson, and at other times at the written request of 2 judges to the

chairperson for the purpose of considering the operations of this Act and the

rules, and the other matters that the chairperson or one of the judges

considers appropriate.

Conferences

23. The Chief Justice may require a judge to

attend a meeting, conference or seminar to be held for a purpose relating to

the administration of justice.

PART IV

REFERENCE

Reference

24 . The Lieutenant-Governor in

Council may refer a matter to the court and upon the reference the court shall

hear and determine that matter.

Certification of opinion

25 .

(1) The

court shall certify its opinion on a reference to the Lieutenant-Governor in

Council together with its judgment.

(2) The judgment given under subsection (1) shall

be given in the same manner as if it were a judgment or order of the court

given in an ordinary proceeding.

(3) A judge who differs from the opinion of the

majority on a reference shall also certify his or her opinion.

(4) The judgment of the court on a reference is

considered to be an order of the court and an appeal lies from a judgment on a

reference as from a judgment in a proceeding.

Notice to Attorneys General

26 . Where a reference

relates to the constitutionality of

an Act or a provision of

an Act, the

Attorney General of Canada and the Attorney General of each province shall be

notified of the hearing in order that they may be heard.

Reference under agreement

27 .

(1) Where

a reference relates to matters arising under an agreement entered into between

reference to the court, the Attorney General of Canada and the Attorney General

of another province that has entered into a similar agreement may appear before

the court and be heard as a party to the hearing of the reference.

(2) The form, terms and other matters relating to

a reference under subsection (1) shall be as set out in the agreement, and in

the absence of such provision shall be as the parties to the agreement agree.

(3) If the parties have not provided for the form,

terms and other matters relating to the reference, or have not agreed to them,

they shall be determined by the Chief Justice.

Notice to interested persons

28 . The

court may direct that a person interested, or a person representing a class

that is interested, shall be notified of a reference and upon the notification

the person has the right to be heard on the hearing of the reference.

Appointment of counsel

29 . Where

a person or class of persons affected by a reference are not represented by

counsel, the court may appoint counsel to represent the person or class and the

reasonable expenses occasioned shall be paid subject to the counsels rates and

reasonable expenses being agreed upon with the Attorney General.

Evidence

30 . The

court may have the evidence taken that it requires upon a matter raised in a

reference if provision is made in the reference for the taking of the evidence.

Procedure

31 . The

court may determine the procedure in a reference but in the absence of a

determination the procedure shall be governed by the rules of procedure of the

Supreme Court of Canada upon references to that court.

PART V

THE COURT GENERALLY

Title of

documents

32 . All

documents, affidavits, notices and other papers and documents issued out of, or

used in, the court are to be entitled "In the Court of Appeal of

Newfoundland and Labrador".

Coat of arms

33 . The

coat of arms of the court shall be the Royal Arms as displayed in the court

house.

Seal

34 .

(1) The

judges may establish the seal to be used by the court to certify and authenticate

the proceedings of the court.

(2) Until the seal is established under subsection

(1), the seal presently in use by the court shall continue to be used.

(3) The seal of the court shall be kept at the

registry.

Transfer of

proceedings

(1) If a proceeding has been started in the court where it ough t

not to have been started, a judge may direct that proceeding be transferred to

the court in which the proceedings ought to have been started.

(2) All proceedings taken by a party that have

been transferred under subsection (1), and all orders made before the transfer,

are considered to be as valid as if they had been taken and made in the court

in which the proceedings ought to have been started.

Costs

36 .

(1) Subject

to the rules and the express provisions of another Act, the costs of and

incident to all proceedings in the court are in the discretion of the court.

(2) The court may determine by whom and to what

extent costs awarded under subsection (1) shall be paid.

(3) Costs may be awarded to and against the Crown.

Rules committees

37 .

(1) There

is continued a rules committee of the court consisting of

(

a) the Chief Justice who shall be the

chairperson;

(

b) the other judges of the court;

(

c) the Chief Justice of the Supreme Court, or the

nominee of the Chief Justice from among the judges of the Supreme Court;

(

d) a nominee of the Chief Executive Officer;

(e) 2 members of the Law Society of Newfoundland

and Labrador appointed by the benchers of that

society; and

(

f) the minister or the nominee of the minister.

(2) The rules committee shall meet at least once

yearly at the call of the chairperson and at other times upon the request of 3

members of the rules committee made in writing to the chairperson.

Rules

38 .

(1) The

rules committee may make rules

(

a) regulating the sittings of the court;

(

b) regulating the procedure of the court in

exercising the jurisdiction of the court conferred by this Act or any other Act

or regulation;

(

c) providing for the service of documents;

(

d) respecting the duties of the clerks, officers

and employees of the court;

(

e) respecting the costs of proceedings in the

court;

(

f) governing the pleading, practice and procedure

of the court.

(

g) regulating the means by which further evidence

may be given and facts may be proved in any preceding where the court orders

admission of further evidence;

(

h) regulating the payment, transfer and deposit

of money or property into or out of court;

(

i) directing the clerks, officers and employees

of the court to do those things respecting the conduct of proceedings in the

court and to transact the business of the court as specified in the rules;

(

j) regulating the procedure applicable to a

reference referred under

section 24 ;

(

k) respecting the maintenance of records and

filing documents and materials by electronic means;

(

l) respecting access to proceedings and court

records;

(

m) respecting the procedure and actions required

for the court to exercise the jurisdiction conferred on it by this Act or any other

Act or regulations;

(

n) fixing the scale of fees to be taken by

barristers and others for proceedings in the court other than fees referred to

in subsection (2); and

(

o) generally, for the purpose and administration

of the Act.

(2) The Lieutenant-Governor in Council may make

rules fixing the scale of fees to be taken by the court.

(3) Rules made under this

section are subordinate

legislation for the purposes of the Statutes and Subordinate Legislation

Act.

(4) Upon the coming into force of this Act, the Court of Appeal Rules , Newfoundland and Labrador Regulation 38/16,

shall continue in force and shall be considered to have been made under the authority

of this Act.

Where procedure

not provided for

39 . In

cases not provided for in this Act, the rules or by the provisions of another

Act that are not inconsistent with this Act, or where the practice and

procedure in a particular proceeding cannot be ascertained, the court may adopt

the practice and procedure that is necessary to permit the proceeding to

continue.

Constitutional

questions

40 .

(1) Where

in a proceeding the constitutional validity, applicability or operability of an

Act or regulation of the Parliament of Canada or of the Legislature is brought

into question at first instance in the court, it shall not be heard until

notice has been given to the Attorney General for Canada and to the Attorney

General for the province.

(2) The notice shall state what Act, regulation or

part of

an Act or regulation is in question and the day on which the question

is to be argued, and shall give other particulars that are necessary to show

the constitutional point proposed to be argued.

(3) Subject to the rules, the notice shall be

served as soon as practicable but no later than 10 days before the day named

for the argument.

(4) The Attorney General for Canada and the Attorney General for

the province are entitled as of right to be heard either in person or by

counsel notwithstanding that the Crown is not a party to the proceeding.

(5) Where in a proceeding to which this

section

applies the Attorney General for Canada or the Attorney General for the

province appears in person or by counsel, each shall be considered to be a

party to the proceeding for the purpose of an appeal from an adjudication as to

the constitutional validity, applicability or operability of

an Act or

regulation in question in the proceeding and each has the same rights with

respect to an appeal as another party to the proceeding.

(6) Where the court considers it appropriate, the

court may order that a notice under this

section be given to the Attorney

General of a province.

PART VI

OFFICERS OF THE COURT

Clerks, officers

and employees

(1) There

may be appointed, in the manner provided by law, the clerks, officers and employees

that the business of the court requires.

(2) One or more persons appointed under subsection

(1) may, in consultation with the Chief Justice, be designated as a registrar

of the court to perform the duties and responsibilities associated with the registry

as set out in the rules.

(3) The clerks, officers and employees of the

court appointed under this Act shall act under the direction of the Chief

Justice or a judge in matters of judicial administration.

(4) The clerks, officers and employees of the court

appointed under this Act shall act under the direction of the Chief Executive

Officer in matters of court administration and shall perform the duties that

may be assigned to them by the Chief Executive Officer.

Oath of office

42. The

Chief Executive Officer and the clerks, officers and employees referred to in

section 41 shall, before entering upon their duties, take and sign before one

of the judges the following oath or affirmation:

"I, A.B.,

of , do solemnly

swear (or solemnly, sincerely and truly declare and affirm) that I will

according to the best of my skill, learning, ability and judgment, well and

faithfully execute and fulfil the duties of the office of without favour or affection,

prejudice or partiality." (Where an oath is taken, add "So help me

God".)

Application of

Part IV, Judicature Act

43. Except

where inconsistent with sections 41 and 42,

Part IV of the Judicature Act shall apply, with the necessary changes, to the clerks,

officers and employees of the court.

PART VII

RULES OF LAW

Application of

Part V, Judicature Act

44. In civil proceedings in the court, law and

equity shall be administered by it in accordance with the rules of law set out

Part V of the Judicature Act .

PART VIII

TRANSITIONAL, CONSEQUENTIAL AND COMMENCEMENT

Transitional

(1) Where in

an Act, regulation,

rule, order, by-law, agreement or other instrument or document, there is a

reference, express or implied, to the Court of Appeal, Appeal Division, the Supreme

Court of Newfoundland and Labrador-Appeal Division, or the Supreme Court of

Newfoundland and Labrador, Court of Appeal, that reference shall in respect of

matters arising after the coming into force of this Act be considered to be a

reference to the Court of Appeal of Newfoundland and Labrador.

(2) Where in

an Act ,

regulation, rule, order, by-law, agreement or other instrument or

document , there is a reference, express or implied,

to the Supreme Court, Trial Division, Trial Division, or the Supreme Court of

Newfoundland and Labrador-Trial Division, that reference shall in respect of

matters arising after the coming into force of this Act be considered to be a

reference to the Supreme Court of Newfoundland and Labrador.

(3) Where on the coming into force of this Act, a

proceeding was underway in the Supreme Court of Newfoundland and Labrador,

Court of Appeal, it shall continue as a proceeding of the Court of Appeal of Newfoundland and Labrador .

(4) Where on the coming into force of this Act, a

proceeding was underway in the Supreme Court of Newfoundland and Labrador,

Trial Division, it shall continue as a proceeding of the Supreme Court of

Newfoundland and Labrador .

(5) Where on the coming into force of this Act, a

person was appointed as a master and taxing officer of the Supreme Court, that

person's appointment is unaffected by the coming into force of this Act and the

person shall be considered to be a master and taxing officer of the Court of

Appeal and the Supreme Court.

(6) Where immediately before the coming into force

of this Act a proceeding was before the Supreme Court of Newfoundland and Labrador , Court of Appeal the Court of Appeal may, upon the application of a person interested in that proceeding give directions

(

a) regarding the filing of documents or matters of procedure; or

(

b) for

the purpose of removing or minimizing a procedural difficulty arising

immediately after the coming into force of this Act.

(7) Where immediately before the coming into force

of this Act a proceeding was before the Supreme Court of Newfoundland and Labrador,

Trial Division, the Supreme Court may, upon the application of a person interested in that proceeding give directions

(

a) regarding the filing of documents or matters of procedure; or

(

b) for

the purpose of removing or minimizing a procedural difficulty arising

immediately after the coming into force of this Act.

RSNL1990 cJ-4

Amdt.

(1) Section 2 of the Judicature Act is repealed and the following substituted:

Definitions

2. In

this Act

(a) "affidavit"

includes a solemn declaration, or statutory declaration, and an agreed

statement of facts;

(b) "Associate Chief Justice" means the

Associate Chief Justice of the Supreme Court;

(c) "Chief Executive Officer" means the

Chief Executive Officer appointed under

section 59.1;

(d) "Chief Justice" means the Chief

Justice of the Supreme Court;

(e) "court" means, unless the context

indicates otherwise, the Supreme Court or a judge or the judges of that court,

whether sitting in court or chambers;

(f) "Court of Appeal" means the Court of

Appeal of Newfoundland and Labrador

continued under

section 3 of the Court of

Appeal Act ;

(g) "decision" means the reasons given

by the court for its judgment or other order;

(h) "defendant" means a person served

with an originating document, or served with notice of or entitled to attend a

proceeding but does not include a respondent;

(i) "judge" means a judge of the court

and includes a judge sitting in chambers;

(j) "judicial centre" means a judicial

centre of the court continued under this Act;

(k) "master" means a Master of the Court

of Appeal and the Supreme Court appointed under

section 77;

(l) "minister" means the minister

appointed under the Executive Council Act

to administer this Act;

(m) "oath" includes solemn affirmation

and statutory declaration;

(n) "order" means an order of the court

and includes a judgment, decree or ruling;

(o) "party" means a person served with

notice of, or entitled to attend a proceeding, even if that person is not named

in the record;

(p) "petitioner" includes a person

making an application to the court, other than as against a defendant;

(q) "plaintiff" means a person asking

relief against another person by a form of proceeding, other than by

counterclaim as a defendant but does not include a petitioner;

(r) "proceeding" means a civil or

criminal action, suit, cause or matter, or an interlocutory application,

including a proceeding formerly started by a writ of summons, third party notice,

counterclaim, petition, originating summons, originating motion or in another

manner;

(s) "registry" means the registry in

each judicial centre;

(t) "rules" means

(

i) the Rules

of the Supreme Court of Newfoundland and Labrador , 1986 and includes

the forms in those rules, and

(ii) the Rules of the Supreme Court of Newfoundland

and Labrador made under

section 55 that replace, amend or revoke the rules and

forms; and

(u) "Supreme Court" means the Supreme

Court of Newfoundland and Labrador .

(2) Section 3 of the Act is repealed and the

following substituted:

Continuation and

jurisdiction of court

(1) The

Supreme Court of Newfoundland and Labrador, Trial Division as it existed before

the coming into force of this

section is continued as the Supreme Court of

Newfoundland and Labrador and shall have all civil and criminal jurisdiction

conferred upon the Supreme Court of Newfoundland

(

a) by the Imperial Statute passed in the 5th

year of the reign of His late Majesty King George the 4th, entitled "

An Act for the better administration of

justice in Newfoundland , and for other purposes ";

(

b) by the Royal Charter or Letters Patent under

the Great Seal, issued by virtue of the Imperial Statute, dated September 19th,

1825, in the 6th year of His late Majesty's reign; and

(

c) by a law in force in the province.

(2) The Supreme Court has all the inherent powers

of a superior court at common law.

(3) Part I of the Act is repealed.

(4) The heading for

Part II of the Act is repealed

and the following substituted:

PART II

THE SUPREME COURT

(5) Section 20.1 of the Act is repealed.

(6) Section 21 of the Act is repealed and the

following substituted:

Supreme Court

(1) The

court consists of

(

a) a chief justice, who shall be called the Chief

Justice of the Supreme Court;

(

b) an associate chief justice, who shall be

called the Associate Chief Justice of the Supreme Court; and

(c) 22 other judges.

(2) The Chief Justice, the Associate Chief Justice

and the judges referred to in paragraph (1)(

c) shall collectively be called the

judges of the Supreme Court.

(3) The court shall be composed of 2 divisions

called the General Division and the Family Division.

(4) A judge who is not assigned to the Family

Division under subsection 43.6(1) shall be considered to be assigned to the General

Division.

(5) The Chief Justice and the Associate Chief

Justice may hear and determine proceedings brought in the General Division and

the Family Division and for that purpose the Chief Justice and the Associate

Chief Justice are judges of the General Division and the Family Division.

(7) Subsections 22(2) and (3) of the Act are

amended by deleting the words "Trial Division" and substituting the

word "court".

(8) Section 23 of the Act is repealed and the

following substituted:

Jurisdiction

23. The

court has jurisdiction over all civil and criminal proceedings that were within

the jurisdiction of the Trial Division immediately before the commencement of

this section, including all proceedings pending in the Trial Division.

(9) Section 24 of the Act is amended by deleting

the words "Trial Division" and substituting the word

"court".

(10) Section 26 of the Act is amended by deleting

the words "Trial Division" and substituting the word

"court".

(11) Section 27 of the Act is repealed and the

following substituted:

Jurisdiction of

judges

(1) Each

judge may exercise the jurisdiction of the court in chambers, in court or as

may be directed or authorized to be heard by the rules.

(2) A judge sitting in the court, in chambers or

in a manner directed or authorized by the rules constitutes the court.

(12) Section 30 of the Act is repealed and the

following substituted:

Transfer of judge

(1) Where,

in a proceeding, there is no judge of the court who is able or eligible to sit

or it is desirable for good reason that no judge of the court should sit, the

Chief Justice may request the Chief Justice of Newfoundland and Labrador to appoint

one of the judges of the Court of Appeal to sit and act as a judge of the Supreme

Court for the hearing of the proceeding.

(2) A judge appointed under subsection (1) shall

attend at the hearing of the proceeding to which that judge has been appointed

and while that judge sits and acts the judge has all the jurisdiction, power

and authority of a judge of the court.

(13) Subsection 32(1) of the Act is amended by

deleting the words "of the Trial Division".

(14) Section 34 of the Act is repealed and the

following substituted:

Appeals to

Supreme Court

(1) On

an appeal from a tribunal or a court of inferior jurisdiction and upon the

removal of a proceeding in which evidence has been taken to the court, the

court

(

a) may direct the rehearing of witnesses, the

retaking of evidence or the taking of further and other evidence by the court

of inferior jurisdiction or the tribunal;

(

b) may require the report of all evidence taken

by the court of inferior jurisdiction or the tribunal;

(

c) may require the production and examination of

a witness already examined or of persons who have not been already examined;

and

(

d) may refer the proceeding back to the court of

inferior jurisdiction or the tribunal for further consideration in whole or in

part.

(2) In giving a decision or judgment upon an

appeal from a court of inferior jurisdiction or a tribunal, the court

(

a) may dismiss the appeal;

(

b) may confirm or reverse the decision of the

court of inferior jurisdiction or the tribunal;

(

c) may alter, amend or modify the decision;

(

d) may make an order that appears to be just; and

(

e) may make orders as to costs.

(15) The header for Division 2 of the Act is

repealed and the following substituted:

Division

Supreme Court - General Division

(16) Section 43.5 of the Act is amended by deleting

the words "Chief Justice of the Trial Division" wherever they appear and

substituting the words "Chief Justice".

(17) Section 43.6 of the Act is amended by deleting

the words "Chief Justice of the Trial Division" wherever they appear

and substituting the words "Chief Justice".

(18) The Act is amended by repealing sections 44 to

59 and substituting the following:

Coat of arms

44. The

coat of arms of the court shall be the Royal Arms as displayed in the court

houses of the Supreme Court.

Seal

(1) The

judges of the court may establish the seal to be used by the court to certify

and authenticate the proceedings of the court.

(2) Until the seal is established under subsection

(1), the seal presently in use by the court shall continue to be used.

(3) The seal of the court shall be kept at the judicial

centre of St. Johns

and a duplicate of that seal shall be kept at the registry in each judicial

centre.

Oaths

(1) The

Chief Justice, the Associate Chief Justice and every other judge of the court

shall, before entering upon the duties of the office of judge, take and sign

the Oath of Allegiance and the Judicial Oath referred to in the Oaths of Office

Act.

(2) The oaths referred to in subsection (1) shall

be administered by a judge.

Supernumerary

judges

(1) For

each office of judge established under

section 21, there is an additional

office of supernumerary judge, which a judge of the court may elect to hold

upon compliance with the Judges Act (Canada) and upon meeting the

qualifications required under that Act.

(2) A judge who elects to hold the office of

supernumerary judge is to be called a judge of the Supreme Court.

(3) Subsection 22(3) does not apply to a judge who

elects to hold the office of supernumerary judge.

Additional judge

47.1 For

the purpose of

section 32 of the Judges Act (Canada), there shall be

established, for the Office of Chief Justice of the Supreme Court of

Newfoundland and Labrador and the Office of Associate Chief Justice of the

Supreme Court an additional office of judge as is from time to time required,

to be held by a Chief Justice or Associate Chief Justice who has elected under

the Judges Act (Canada) to perform only the duties of a judge of the Supreme

Court.

Precedence of

judges

48. The

judges of the Supreme Court and the

Court of Appeal have rank, precedence and seniority in the following order:

(

a) the Chief Justice of Newfoundland

and Labrador ;

(

b) the Chief Justice;

(

c) the Associate Chief Justice;

(

d) the judges of the Court of Appeal in the order

of their seniority of appointment to the Court of Appeal; and

(

e) the judges of the Supreme Court in the order

of their seniority of appointment to the court.

Powers of the

Chief Justice

49. Where

there is a vacancy in the office of the Chief Justice or the Chief Justice

(

a) is absent from the province;

(

b) is unable to act; or

(

c) requests it,

his or her powers shall be exercised by

the Associate Chief Justice, or if there is a vacancy in the Office of

Associate Chief Justice or he or she is absent or unable to act, by the next

senior judge of the court who is able to act in the place of the Chief Justice.

Vacancy

50. A

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

Judges

51. A

judge of the Court of Appeal is by virtue of the office a judge of the court

where that judge has been appointed under

section 30 for the purpose of hearing

a proceeding and while so acting has in all respects equal jurisdiction, power

and authority.

Transfer of

proceeding

(1) If

a proceeding has been started

(

a) in

the Court of Appeal where it ought not to have been started; or

(

b) in

the Supreme Court where it ought not to have been started,

a judge of the respective court may direct that proceeding be

transferred to the appropriate court.

(2) All proceedings taken by a party that have

been transferred under subsection (1), and all orders made before the transfer,

are considered to be as valid as if they had been taken and made in the court

in which the proceeding ought to have been started.

Costs

(1) Subject

to the rules and the express provisions of another Act, the costs of and

incident to all proceedings in the court including the administration of

estates and trusts are in the discretion of the court.

(2) The court may determine by whom and to what

extent costs awarded under subsection (1) shall be paid.

(3) Costs may be awarded to and against the Crown.

Rules committees

(1) There

is continued a rules committee of the Supreme Court consisting of

(

a) the Chief Justice, who shall be chairperson;

(

b) the Chief Justice of Newfoundland and

Labrador, or the nominee of the Chief Justice of Newfoundland and Labrador

from among the judges of the Court of Appeal;

(c) 4 judges of the Supreme Court designated by

the Chief Justice;

(

d) a nominee of the Chief Executive Officer;

(e) 2 members of the Law Society of Newfoundland appointed

by the benchers of that society; and

(

f) the minister or the nominee of the minister.

(2) The rules committee shall meet at least once

yearly at the call of the chairperson and at other times upon the request of 3

members of the rules committee made in writing to the chairperson.

Rules

(1) The

rules committee may make rules

(

a) regulating the sittings of the court and the

sittings of the judges in chambers;

(

b) regulating the payment, transfer and deposit

of money or property into or out of the court;

(

c) regulating the procedure of the court in

exercising the jurisdiction of the court conferred by another Act or

regulation;

(

d) regulating the means by which particular facts

may be proved and the method in which evidence may be given on an application

in a proceeding relating to the distribution of a fund or property, whether in

the court or not;

(

e) respecting the physical or mental examination

of a party where the physical or mental condition of a party is an issue in the

proceeding;

(

f) respecting the hearing of appeals and all

proceedings relating to or brought up by certiorari orders from Provincial Court

judges or justices of the peace;

(

g) governing the pleading, practice and procedure

of probate and administration under

Part VI;

(

h) providing for the service of documents out of

the jurisdiction of the court;

(

i) respecting the duties of the clerks, officers

and employees of the court;

(

j) respecting the costs of proceedings in the

court; and

(

k) governing the pleading, practice and procedure

generally of the court.

(2) The Lieutenant-Governor in Council may make

rules fixing the scale of fees to be taken by the court.

(3) The rules committee may make rules fixing the

scale of fees to be taken by barristers and others for proceedings in the court

not included in subsection (2).

(4) Rules made under this

section are subordinate

legislation for the purposes of the Statutes and Subordinate Legislation

Act.

Where procedure

not provided for

56. In cases not provided for in

this Act, the rules or by the provisions of another Act that are not inconsistent

with this Act, or where the practice and procedure in a particular proceeding

cannot be ascertained, the court may adopt the practice and procedure that is

necessary to permit the proceeding to continue.

Constitutional

questions

(1) Where

in a proceeding the constitutional validity, applicability or operability of an

Act or regulation of the Parliament of Canada or of the Legislature is brought

into question, it shall not be heard until notice has been given to the

Attorney General for Canada and to the Attorney General for the province.

(2) The notice shall state what Act, regulation or

part of

an Act or regulation is in question and the day on which the question

is to be argued, and shall give other particulars that are necessary to show

the constitutional point proposed to be argued.

(3) Subject to the rules, the notice shall be

served as soon as practicable but no later than 10 days before the day named

for the argument.

(4) The Attorney General for Canada and the Attorney General for

the province are entitled as of right to be heard either in person or by

counsel notwithstanding that the Crown is not a party to the proceeding.

(5) Where in a proceeding to which this

section

applies the Attorney General for Canada or the Attorney General for the

province appears in person or by counsel, each shall be considered to be a

party to the proceeding for the purpose of an appeal from an adjudication as to

the constitutional validity, applicability or operability of

an Act or

regulation in question in the proceeding and each has the same rights with

respect to an appeal as another party to the proceeding.

(6) Where the court considers it appropriate, the

court may order that a notice under this

section be given to the Attorney

General of a province.

Council of judges

(1) A

council consisting of the judges shall meet at least once yearly at the call of

the chairperson and at other times upon the written request of 3 judges to the

chairperson, upon a day fixed by the chairperson and of which he or she shall

give notice to the judges assembled for the purpose of

(

a) considering

(

i) the operation of this Act and the rules, and

(ii) the working of, and the arrangements governing

the performance of duties by, the clerks, officers and employees of the court;

(

b) inquiring into and examining defects that

appear to exist in the procedure of the court; and

(

c) considering other matters that the chairperson

or one of the judges considers appropriate.

(2) The Chief Justice shall be the chairperson of

the council.

(3) Where the council considers it necessary and

appropriate to do so, it may form one or more subcommittees to deal with a

matter referred to in subsection (1) and each subcommittee so formed shall meet

at the times and places that are necessary to achieve the purpose for which it

was formed.

Conferences

59. The

Chief Justice may require a judge to attend a meeting, conference or seminar to

be held for a purpose relating to the administration of justice.

(19) Section 59.1 of the Act is repealed and the

following substituted:

Chief Executive

Officer

59.1

(1) The

Lieutenant-Governor in Council, in consultation with the Chief Justice of

Newfoundland and Labrador and the Chief Justice, may appoint or remove a Chief

Executive Officer who shall be the Chief Executive Officer of both the Supreme

Court and the Court of Appeal.

(2) The Lieutenant-Governor in Council may appoint

a person to act in the place of the Chief Executive Officer until a Chief Executive

Officer is appointed or the Chief Executive Officer is able to resume his or

her duties where

(

a) the office of the Chief Executive Officer is

vacant; or

(

b) the Chief Executive Officer is unable to

fulfill his or her duties.

(3) The Chief Executive Officer shall act under

the direction of the minister in matters of court administration of the Supreme

Court and the Court of Appeal.

(4) The duties of the Chief Executive Officer

shall include

(

a) the management, operation and administration

of the Supreme Court and the Court of Appeal;

(

b) the direction and supervision of the clerks,

officers and employees of the Supreme Court, the Court of Appeal and registries;

(

c) an accounting of the fees required to be

collected by the clerks, officers and employees of the Supreme Court and the

Court of Appeal and of the money paid into and out of court; and

(

d) the duties provided under this or another Act

or regulation or rule made under this or another Act, or as may be assigned by

the minister, the Chief Justice or the Chief Justice of Newfoundland

and Labrador .

(5) The Chief Executive Officer shall act under

the direction of the Chief Justice and the Chief Justice of Newfoundland and

Labrador in matters of judicial administration.

(20) Section 60.2 of the Act is repealed and the

following substituted:

Taxing officers

60.2

(1) The

Chief Justice of Newfoundland and Labrador and the Chief Justice may designate

clerks, officers and employees of the Court of Appeal and the Supreme Court appointed

under this Part as taxing officers for the Court of Appeal and the Supreme

Court respectively.

(2) A clerk, officer or employee appointed under

this

Part is not entitled to additional remuneration, or to charge a fee, only

because he or she is designated as a taxing officer.

(21) Section 67 of the Act is repealed and the

following substituted:

Accounts

(1) The

Chief Executive Officer shall, as soon as possible after the end of every

fiscal year, prepare accounts of all money held by the Court of Appeal and the

Supreme Court and shall, before August 1 in every year, provide a copy of the accounts

(

a) to the Chief Justice of Newfoundland and Labrador and the Chief Justice, for the information of

the judges; and

(

b) to the minister.

(2) The auditor general shall examine and audit

the accounts of the Court of Appeal and the Supreme Court.

(22) Subsection 70(1) of the Act is amended by

deleting the words "Trial Division" and substituting the word

"court".

(23) Subsection 78(1) of the Act is repealed and

the following substituted:

Commissioners

within the province

(1) The

Chief Justice of Newfoundland and Labrador and the Chief Justice may issue

commissions within the province under the seal of the Court of Appeal or the

Supreme Court to those persons that they think suitable, and may revoke the

commissions.

(24) Subsection 79(1) of the Act is repealed and

the following substituted:

Commissioners

outside the province

(1) The

Chief Justice of Newfoundland and Labrador and the Chief Justice may issue

commissions outside the province under the seal of the Court of Appeal or the

Supreme Court to those persons that they think suitable, and may revoke the

commission.

(25) Section 90 of the Act is repealed and the

following substituted:

Interpretation

90. In

civil proceedings in the Supreme Court, law and equity shall be administered by

it in accordance with the rules of law set out in this Part.

(26) Part VII of the Act is repealed and the

following substituted:

PART VIII

TRANSITIONAL PROVISIONS

Transitional provisions

(1) Where

in

an Act, regulation, rule,

order, by-law, agreement or other instrument or document, there is a reference,

express or implied, to the Court of Appeal, Appeal Division, the Supreme Court

of Newfoundland and Labrador-Appeal Division, or the Supreme Court of

Newfoundland and Labrador, Court of Appeal, that reference shall in respect of matters arising on or after January 1, 2018 be considered

to be a reference to the Court of Appeal of Newfoundland and Labrador.

(2) Where in

an Act ,

regulation, rule, order, by-law, agreement or other instrument or

document , there is a reference, express or implied,

to the Supreme Court, Trial Division, Trial Division, or the Supreme Court of

Newfoundland and Labrador-Trial Division, that reference shall in respect of

matters arising on or after January 1, 2018 be considered to be a reference to

the Supreme Court of Newfoundland and Labrador.

(3) Where on or after January 1, 2018, a

proceeding was underway in the Supreme Court of Newfoundland and Labrador,

Court of Appeal, it shall continue as a proceeding of the Court of Appeal of

Newfoundland and Labrador.

(4) Where on or after January 1, 2018, a

proceeding was underway in the Supreme Court of Newfoundland and Labrador,

Trial Division, it shall continue as a proceeding of the Supreme Court of Newfoundland

and Labrador.

(5) Where on or after January 1, 2018, a person

was appointed as a master and taxing officer of the Supreme Court, that

person's appointment is unaffected by the coming into force of this Act and the

person shall be considered to be a master and taxing officer of the Court of

Appeal and the Supreme Court.

(6) Where immediately before January 1, 2018 a

proceeding was before the Supreme Court of Newfoundland and Labrador ,

Court of Appeal, the Court of Appeal may, upon the application of a person interested in that

proceeding give directions

(

a) regarding the filing of documents or matters of procedure; or

(

b) for

the purpose of removing or minimizing a procedural difficulty arising

immediately after the coming into force of this Act.

(7) Where immediately before January 1, 2018 a

proceeding was before the Supreme Court of Newfoundland and Labrador ,

Trial Division, the Supreme Court may, upon the application of a person interested in that proceeding give directions

(

a) regarding the filing of documents or matters of procedure; or

(

b) for

the purpose of removing or minimizing a procedural difficulty arising

immediately after the coming into force of this Act.

SNL2016 c37 Amdt.

Section 2 of

An Act to Amend the Judicature Act , SNL2016 c37, is amended by

deleting the words "Trial Division" wherever they appear and

substituting the words "Supreme Court".

Commencement

48. This Act comes into force on January 1, 2018.

Queen's Printer