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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

CHAPTER J-4

AN ACT RESPECTING THE SUPREME COURT AND PROCEDURE IN THAT COURT

Analysis


       
1.   Short title

       
2.   Definitions

       
3.   Jurisdiction continued

              PART I
THE COURT OF APPEAL

       
4.   Court of Appeal

       
5.   Appellate jurisdiction

       
6.   Jurisdiction generally

       
7.   Quorum

       
8.   Judge ceases to hold office

       
9.   Transfer of judge

     
10.   Single judge

     
11.   Ineligibility of judge

     
12.   Title of documents

     
13.   Reference

     
14.   Certification of opinion

     
15.   Notice to Attorneys General

     
16.   Reference under agreement

     
17.   Notice to interested persons

     
18.   Appointment of counsel

     
19.   Evidence

     
20.   Procedure

              PART II
THE TRIAL DIVISION

              Division 1
General Provisions

   
20.1   Trial Division

     
21.   Trial Division

     
22.   Judicial centres

     
23.   Jurisdiction

     
24.   Single judge

     
25.   Same judge

     
26.   Sitting apart

     
27.   Jurisdiction of judges

     
28.   Rep. by 2009 c16 s6

     
29.   Substitution of judge

     
30.   Transfer of judge

     
31.   Retired judge's reserved decision

     
32.   Rehearing of decision

     
33.   Rep. by 2009 c16 s7

     
34.   Appeals to Trial Division

     
35.   Effect of verdict

     
36.   Legal and equitable issues

     
37.   Rep. by 2001 c42 s24

     
38.   New trials

     
39.   Forfeiture of recognizances

     
40.   Rep. by 2004 c36 s20

     
41.   Submission of matter to jury

     
42.   Enforcement of penalty

     
43.   Payment of penalties

              Division 2
Trial Division - 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

     
44.   Coat of arms

     
45.   Seals

     
46.   Oaths

     
47.   Supernumerary judges

   
47.1   Additional judge

     
48.   Precedence of judges

     
49.   Powers of the chief justices

     
50.   Vacancy

     
51.   Judges

     
52.   Transfer of proceeding

     
53.   Costs

     
54.   Rules committees

     
55.   Rules

     
56.   Where procedure not provided for

     
57.   Constitutional questions

     
58.   Council of judges

     
59.   Conferences

              PART IV
OFFICERS OF THE SUPREME COURT

   
59.1   Chief Executive Officer

     
60.   Clerks, officers and employees

   
60.1   Powers of staff who
perform a registry
function

   
60.2   Taxing officers

   
60.3   Oath of office

     
61.   Rep. by 2013 c16 s8

     
62.   Duties of clerks, officers and employees

     
63.   Rep. by 2013 c16 s10

     
64.   Rep. by 2013 c16 s10

     
65.   Execution of trust estate conveyance

     
66.   Discharge of liability

     
67.   Accounts

     
68.   Fees

     
69.   Unclaimed money

     
70.   Persons entitled to money

     
71.   Trust funds

     
72.   Rep. by 2013 c16 s18

     
73.   Rep. by 2013 c16 s18

     
74.   Rep. by 2013 c16 s18

     
75.   Rep. by 2013 c16 s18

     
76.   Rep. by 2013 c16 s18

     
77.   Masters and taxing officers

     
78.   Commissioners within the province

     
79.   Commissioners outside the province

     
80.   Fees of commissioners

     
81.   Rep. by 1991 c29 s24

     
82.   Rep. by 1991 c39 s24

     
83.   Rep. by 1991 c39 s24

     
84.   Rep. by 1991 c39 s24

     
85.   Rep. by 1991 c39 s24

     
86.   Rep. by 1991 c39 s24

     
87.   Rep. by 1991 c39 s24

     
88.   Rep. by 2013 c16 s19

     
89.   Officers of the court

              PART V
RULES OF LAW

     
90.   Interpretation

     
91.   Equitable relief

     
92.   Equitable relief

     
93.   Equitable and legal relief

     
94.   Joined defendant

     
95.   Equitable estates

     
96.   Prohibition and injunction

     
97.   Stay of proceedings

     
98.   Recognition of common law

     
99.   Avoidance of multiplicity of actions

   
100.   Equitable waste

   
101.   Merger by operation of law

   
102.   Right of mortgagor

   
103.   Assignment of debts

   
104.   Stipulations as to time

   
105.   Mandamus or injunction

   
106.   Custody questions

   
107.   Equity prevails

              PART VI
PROBATE AND ADMINISTRATION

   
108.   Definitions

   
109.   Rep. by 2010 c29 s3

   
110.   Application

   
111.   Form

   
112.   Inventory and valuation

   
113.   Certificates from registry

   
114.   Caveat

   
115.   Where caveat or objection

   
116.   Proof in solemn form

   
117.   Other proof

   
118.   Production of testamentary document

   
119.   Discretion as to grant

   
120.   Security

   
121.   Appointment of administrator pending action

   
122.   Effect of grant

   
123.   Removal of executor

   
124.   Not a sole executor

   
125.   Executor of appointed executor

   
126.   Executor absent from province

   
127.   Renunciation by executor

   
128.   Good faith payments

   
129.   Filing of accounts

   
130.   Proof of debts

   
131.   Notification of certain creditors

   
132.   Resealing of foreign grants

              PART VII
ATTACHMENT, EXECUTION AND DISTRAINT

   
133.   Definitions

   
134.   No arrest

   
135.   Rep. by 1996 cJ-1.1 s194

   
136.   Rep. by 1996 cJ-1.1 s194

   
137.   Particulars of rent

   
138.   Rep. by 1998 c6 s16

   
139.   Distress of goods

   
140.   Rep. by 1996 cJ-1.1 s194

              PART VIII
TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

   
141.   References to Court of Appeal

   
142.   Continuation of proceedings

   
143.   Documents under former style of cause

   
144.   Reference to Trial Division

   
145.   Continuation of proceedings

   
146.   Cases referred back on appeal

   
147.   Documents under former style of cause

   
148.   Continuation of proceedings

   
149.   Cases referred back on appeal

   
150.   Documents under former style of cause


Short title

        1. This Act may be cited as the Judicature Act .

1986 c42 s1

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Definitions

        2. In this Act

---

             (a)  "affidavit" includes a solemn declaration, or statutory declaration, and an agreed statement of facts;

             (b)  [Rep. by 2013 c16 s1]

         (b.1)  "Chief Executive Officer" means the Chief Executive Officer appointed under section 59.1;

             (c)  "court" means,

                      (i)  in the Court of Appeal, the court or a judge or the judges of the court, whether sitting in court or chambers, and

                     (ii)  in the Trial Division, the court or a judge or the judges of the court, whether sitting in court or chambers;

             (d)  "court of appeal" means the appeal division of the Supreme Court of Newfoundland and Labrador ;

             (e)  "decision" means the reasons given by the court for its judgment or other order;

             (f)  "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;

             (g)  "judge" means a judge of the Court of Appeal or the Trial Division as the circumstances may require and includes a judge sitting in chambers;

             (h)  "judicial centre" means a judicial centre of the Trial Division continued under this Act;

              (i)  "master" means a Master of the Supreme Court or a person who may be appointed by the court or a judge to so act;

              (j)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

             (k)  "oath" includes solemn affirmation and statutory declaration;

              (l)  "order" means an order of the court and includes a judgment, decree or ruling;

           (m)  "party" means a person served with notice of, or entitled to attend a proceeding, even if that person is not named in the record;

             (n)  "petitioner" includes a person making an application to the Supreme Court, other than as against a defendant;

             (o)  "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;

             (p)  "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, 3rd party notice, counterclaim, petition, originating summons, originating motion or in another manner;

             (q)  "reference" means a reference to the Court of Appeal under section 13;

              (r)  [Rep. by 2013 c16 s1]

             (s)  "registry" means the registry in each judicial centre as well as the registry in the Court of Appeal;

              (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;

             (u)  "Supreme Court" means the Supreme Court of Newfoundland and Labrador referred to in section 3, and where the subject or context requires, the Court of Appeal or the Trial Division; and

             (v)  "Trial Division" means the Trial Division of the Supreme Court.

1986 c42 s2; 1990 c62 s16; 2001 cN-3.1 s2 2006 c40 s21; 2013 c16 s1

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Jurisdiction continued

        3. (1) The Supreme Court of Newfoundland and Labrador is continued under this Act 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 of Newfoundland and Labrador shall continue to be composed of

             (a)  an appeal division, to be called the Court of Appeal; and

             (b)  a Trial Division.

1986 c42 s3; 2001 cN-3.1 s2

PART I
THE COURT OF APPEAL

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Court of Appeal

        4. (1) The Court of Appeal consists of 6 judges, 1 being a chief justice, who shall be called Chief Justice of Newfoundland and Labrador, and 5 other judges, who shall be called Judges of Appeal.

             (2)  Subject to the rules, the Court of Appeal 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 court requires.

             (3)  Each judge of the Court of Appeal 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.

1986 c42 ss4&156; 2001 cN-3.1 s2

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Appellate jurisdiction

        5. (1) Subject to the rules, an appeal lies to the Court of Appeal

             (a)  from an order of the Trial Division or an order of a judge of the Trial Division; 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 of Appeal shall have and exercise appellate jurisdiction, with the original jurisdiction that may be necessary or incidental to the determining of an appeal, 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 Trial Division.

1986 c42 s5; 2001 c42 s24

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Jurisdiction generally

        6. For the hearing and determination of a proceeding within its jurisdiction, and the amendment, execution and enforcement of an order, and for the purpose of every other authority expressly or implicitly given to the Court of Appeal, by this Act or another Act of the Legislature or the Parliament of Canada, the Court of Appeal has the power, authority and jurisdiction vested in the Court of Appeal of the Supreme Court of Newfoundland and Labrador as it existed before September 2, 1986.

1986 c42 s6; 2001 cN-3.1 s2

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Quorum

        7. (1) Three of the judges of the Court of Appeal constitute a quorum of the court for the purpose of hearing an appeal at a sitting of the court.

             (2)  The decision of the majority of the Court of Appeal sitting as a quorum is the order 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 appeal or application is finally disposed of by not fewer than 2 judges, in which case their decision shall have the same effect as if made by the whole court.

             (4)  It is not necessary for all the judges who have heard the argument in a case to be present in order to constitute the court for making the decision in that case; and where a judge who has heard the argument is not present at the time when the decision is delivered, the decision may be announced or read by 1 of the other judges, and shall have the same effect as if the judge were present.

1986 c42 s7

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Judge ceases to hold office

        8. Notwithstanding section 7, where the argument in a proceeding has been heard before a judge as 1 of a panel of judges and the judge is appointed to another court or for another reason ceases to hold office, that judge may within 6 months of ceasing to hold office make a decision or an order in that proceeding.

1986 c42 s8

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Transfer of judge

        9. Where a judge of the Court of Appeal is unable to sit or take part in consequence of section 11, or from illness or other reason, or in case of a vacancy in the court, the Chief Justice of the Trial Division shall upon the request of the Chief Justice of Newfoundland and Labrador appoint a judge of the Trial Division 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 of Appeal.

1986 c42 s9; 2001 cN-3.1 s2

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Single judge

      10. In a proceeding pending in the Court of Appeal, 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.

1986 c42 s10

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Ineligibility of judge

      11. A judge is ineligible to sit on the hearing of an appeal from a decision or order made by that judge.

1986 c42 s11

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Title of documents

      12. All documents, affidavits, notices and other papers and documents issued out of, or used in, the Court of Appeal are to be entitled "In the Supreme Court of Newfoundland and Labrador, Court of Appeal".

1986 c42 s12; 2001 cN-3.1 s2

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Reference

      13. The Lieutenant-Governor in Council may refer a matter to the Court of Appeal and upon the reference the Court of Appeal shall hear and determine that matter.

1986 c42 s13

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Certification of opinion

      14. (1) The Court of Appeal shall certify its opinion on a reference to the Lieutenant-Governor in Council together with its decision.

             (2)  The decision given under subsection (1) shall be given in the same manner as if it were an order of the court given in an ordinary proceeding.

             (3)  A judge who differs from the decision of the majority on a reference shall also certify his or her decision.

             (4)  The decision of the Court of Appeal on a reference is considered to be an order of the Court of Appeal and an appeal lies from a decision on a reference as from a judgment in a proceeding.

1986 c42 s14; 1988 c54 s14

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Notice to Attorneys General

      15. 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.

1986 c42 s15

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Reference under agreement

      16. (1) Where a reference relates to matters arising under an agreement entered into between the Government of Canada and the government of the province that provides for a reference to the Court of Appeal, the Attorney General of Canada and the Attorney General of another province that has entered into a similar agreement may appear before the Court of Appeal 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 of Newfoundland and Labrador, or in the absence or a vacancy in that position, by the senior judge of the Court of Appeal.

1986 c42 s16; 2001 cN-3.1 s2

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Notice to interested persons

      17. The Court of Appeal 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 shall be heard on the hearing of the reference.

1986 c42 s17

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Appointment of counsel

      18. 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 by the Minister of Finance out of the Consolidated Revenue Fund.

1986 c42 s18

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Evidence

      19. The Court of Appeal 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.

1986 c42 s19

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Procedure

      20. The Court of Appeal 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.

1986 c42 s20

PART II
THE TRIAL DIVISION

Division 1
General Provisions

2009 c16 s1

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Trial Division

   20.1 (1) The Trial Division as it existed prior to the commencement of this section and the Unified Family Court, continued under the Unified Family Court Act as a division of the Supreme Court of Newfoundland and Labrador, are continued as a division of the Supreme Court of Newfoundland and Labrador to be known as the Supreme Court of Newfoundland and Labrador, Trial Division.

             (2)  The Trial Division referred to in subsection (1) has all the inherent powers of a superior court at common law.

2009 c16 s2

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Trial Division

      21. (1) The Trial Division consists of 21 judges, one of whom shall be a chief justice, who shall be called the Chief Justice of the Trial Division, and 20 other judges who shall be called judges of the Trial Division.

             (2)  The Trial Division shall be composed of 2 divisions called the General Division and the Family Division.

             (3)  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.

             (4)  The Chief Justice of the Trial Division may hear and determine proceedings brought in the General Division and the Family Division and for that purpose the chief justice is a judge of the General Division and the Family Division.

             (5)  In this Part, a reference to the General Division or the Family Division shall be considered to be a reference to the Trial Division - General Division or the Trial Division - Family Division.

2009 c16 s3

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Judicial centres

      22. (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 , Happy Valley-Goose Bay and St. John's .

             (2)  Each judge appointed to the Trial Division 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 his or her consent.

             (3)  Each judge of the Trial Division shall maintain his or her 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

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Jurisdiction

      23. The Trial Division has jurisdiction over all civil and criminal proceedings that were within the jurisdiction of the Trial Division of the Supreme Court of Newfoundland and Labrador and the Unified Family Court immediately before the commencement of this section , including all proceedings pending in the Trial Division and Unified Family Court.

2009 c16 s4

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Single judge

      24. Except where otherwise expressly provided by an Act, a proceeding in the Trial Division 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

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Same judge

      25. 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

      26. The judges of the Trial Division 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

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Jurisdiction of judges

      27. (1) Each judge of the Trial Division may exercise the jurisdiction of the Trial Division and, as it existed immediately before the commencement of this section, of the Unified Family Court, that might have been exercised in court or in chambers by a single judge, or as may be directed or authorized to be heard by the rules.

             (2)  A judge sitting under subsection (1) is considered to constitute the Trial Division.

2009 c16 s5

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Rep. by 2009 c16 s6

      28. [Rep. by 2009 c16 s6]

2009 c16 s6

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Substitution of judge

      29. (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

      30. (1) Where, in a proceeding, there is no judge of the Trial Division who is able or eligible to sit or it is desirable for good reason that no judge of the Trial Division should sit, the Chief Justice of the Trial Division may request the Chief Justice of Newfoundland and Labrador to appoint 1 of the judges of the Court of Appeal to sit and act as a judge of the Trial Division 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 Trial Division.

1986 c42 s30; 2001 cN-3.1 s2

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Retired judge's reserved decision

      31. (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 his or her 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

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Rehearing of decision

      32. (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 of the Trial Division 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

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Rep. by 2009 c16 s7

      33. [Rep. by 2009 c16 s7]

2009 c16 s 7

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Appeals to Trial Division

      34. (1) On an appeal from a tribunal or a court of inferior jurisdiction and upon the removal of a proceeding in which evidence has been taken to the Trial Division, the Trial Division

             (a)  may direct the rehearing of witnesses, the retaking of evidence, or the taking of further and other evidence by the court or tribunal;

             (b)  may require the report of all evidence taken by the court or 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 or 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 Trial Division

             (a)  may dismiss the appeal;

             (b)  may confirm or reverse the decision of the court or 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

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Effect of verdict

      35. 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

      36. 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

      37. [Rep. by 2001 c42 s24]

2001 c42 s24

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New trials

      38. (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

      39. (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

      40. [Rep. by 2004 c36 s20]

2004 c36 s2 0

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Submission of matter to jury

      41. (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

      42. 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

      43. 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

Division 2
Trial Division - General Division

2009 c16 s8

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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 of the Trial Division, 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 of the Trial Division 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

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Family Division judges

   43.6 (1) The Chief Justice of the Trial Division 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 of the Trial Division may designate one of them to be the senior administrative judge of the division.

             (3)  With the consent of the judge, the Chief Justice of the Trial Division 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 of the Trial Division 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

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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 Child, Youth and Family Services Act ;

           (l.1)  protective intervention matters relating to adults under the Adult Protection Act;

           (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 him or her, a judge of the Family Division 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

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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

      44. The coat of arms of the Supreme Court shall be the Royal Arms as displayed in the court houses of the Court of Appeal and the Trial Division.

1986 c42 s44

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Seals

      45. (1) The judges of the Court of Appeal and the Trial Division may establish the seals to be used by the Court of Appeal and the Trial Division to certify and authenticate the proceedings of those courts.

             (2)  Until the seals are established under subsection (1), the seals presently in use by the Court of Appeal and the Trial Division shall continue to be used.

             (3)  The seal of the Court of Appeal shall be kept at the registry of that court.

             (4)  The seal of the Trial Division shall be kept at the judicial centre of St. John’s and a duplicate of that seal shall be kept at the registry in each judicial centre.

1986 c42 s45 2013 c16 s2

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Oaths

      46. (1) The Chief Justice of Newfoundland and Labrador, the Chief Justice of the Trial Division and every other judge of the Court of Appeal and the Trial Division 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

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Supernumerary judges

      47. (1) For each office of judge established under sections 4 and 21, there is an additional office of supernumerary judge, which a judge of the Court of Appeal and the Trial Division 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 Court of Appeal or a judge of the Trial Division in accordance with the division of the court to which the judge is appointed at the time of his or her election.

             (3)  Subsection 4(3) and subsection 22(3) do not apply to a judge who elects to hold the office of supernumerary judge.

1986 c42 s47; 1993 c53 s17

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Additional judge

   47.1 For the purpose of section 32 of theJudges Act (Canada), there shall be established, for the Office of Chief Justice of Newfoundland and Labrador and the Office of Chief Justice of the Trial Division an additional office of judge as is from time to time required, to be held by a Chief Justice of Newfoundland and Labrador or a Chief Justice of the Trial Division who has elected under the Judges Act (Canada) to perform only the duties of a judge of the Court of Appeal or the Trial Division, as the case may be.

1995 c6 s1; 2001 cN-3.1 s2

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Precedence of judges

      48. (1) The judges of the Supreme Court have rank, precedence and seniority in the following order:

             (a)  the Chief Justice of Newfoundland and Labrador ;

             (b)  the Chief Justice of the Trial Division;

             (c)  the judges of the Court of Appeal in the order of their seniority of appointment to that court; and

             (d)  the judges of the Trial Division in the order of their seniority of appointment to that court.

             (2)  Notwithstanding subsection (1), District Court judges elevated to the Trial Division on September 2, 1986 have rank and precedence after the judges of the Trial Division holding office on September 2, 1986, and among themselves according to seniority of their appointments as District Court judges but the Chief Judge of the District Court on September 2, 1986 shall, notwithstanding the date of his or her appointment, take rank and precedence immediately after the other judges of the Trial Division who were appointed before September 2, 1986.

1986 c42 s48; 2001 cN-3.1 s2

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Powers of the chief justices

      49. (1) Where there is a vacancy in the office of, or the Chief Justice of Newfoundland and Labrador or the Chief Justice of the Trial Division,

             (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 respective court who is able to act in the place of the Chief Justice of Newfoundland and Labrador , or the Chief Justice of the Trial Division.

1999 c37 s1; 2001 cN-3.1 s2

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Vacancy

      50. A vacancy in the Supreme Court does not impair the Supreme Court in the exercise of the powers of the court.

1986 c42 s50

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Judges

      51. A judge of the Court of Appeal or the Trial Division is by virtue of the office a judge of the other court to which that judge has been appointed under section 9 or 30 for the purpose of hearing a proceeding and while so acting has in all respects equal jurisdiction, power and authority.

1986 c42 s51

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Transfer of proceeding

      52. (1) If a proceeding has been started

             (a)  in the Court of Appeal where it ought not to have been started; or

             (b)  in the Trial Division 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 proceedings ought to have been started.

1986 c42 s52

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Costs

      53. (1) Subject to the rules and the express provisions of another Act, the costs of and incident to all proceedings in the Supreme 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

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Rules committees

      54. (1) There is continued

             (a)  a rules committee of the Court of Appeal consisting of

                      (i)  the Chief Justice of Newfoundland and Labrador who shall be the chairperson,

                     (ii)  the other judges of the Court of Appeal,

                    (iii)  the Chief Justice of the Trial Division, or the nominee of the Chief Justice from among the judges of the Trial Division,

                    (iv)  a nominee of the Chief Executive Officer,

                     (v)  2 members of the Law Society of Newfoundland appointed by the benchers of that society, and

                    (vi)  the minister or the nominee of the minister; and

             (b)  a rules committee of the Trial Division consisting of

                      (i)  the Chief Justice of the Trial Division who shall be chairperson,

                     (ii)  the Chief Justice of Newfoundland and Labrador , or the nominee of the chief justice from among the judges of the Court of Appeal,

                    (iii)  4 judges of the Trial Division designated by the Chief Justice of the Trial Division,

                    (iv)  a nominee of the Chief Executive Officer,

                     (v)  2 members of the Law Society of Newfoundland appointed by the benchers of that society, and

                    (vi)  the minister or the nominee of the minister.

             (2)  Each 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 each rules committee made in writing to the chairperson.

1986 c42 s54; 2001 cN-3.1 s2 2013 c16 s3

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Rules

      55. (1) Each 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 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 of Appeal or the Trial Division.

             (2)  The Lieutenant-Governor in Council may make rules fixing the scale of fees to be taken by the Supreme Court.

             (3)  Each 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

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Where procedure not provided for

      56. (1) In cases not provided for in this Act, the rules or by the provisions of another Act that are not inconsistent with this Act, the pleading, practice and procedure of the High Court of Justice in England are, where applicable, the pleading, practice and procedure of the Supreme Court.

             (2)  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

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Constitutional questions

      57. (1) Where in a proceeding the constitutional validity 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 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 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

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Council of judges

      58. (1) A council consisting of the judges of the Trial Division shall meet at least once yearly at the call of the chairperson and at other times upon the written request of 3 judges of the Trial Division 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 a court; and

             (c)  considering other matters that the chairperson or 1 of the judges of the Trial Division considers appropriate.

             (2)  The Chief Justice of the Trial Division shall be the chairperson of the council.

             (3)  Where the council considers it necessary and appropriate to do so, it may form 1 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

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Conferences

      59. The Chief Justice of Newfoundland and Labrador and the Chief Justice of the Trial Division may require a judge of the Court of Appeal or the Trial Division 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

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 of the Trial Division, may appoint or remove a Chief Executive Officer for the Supreme Court.

             (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 ill and unable to fulfill his or her duties.

             (3)  The Chief Executive Officer shall act under the direction of the Minister of Justice in matters of administration of the Supreme Court.

             (4)  The duties of the Chief Executive Officer shall include

             (a)  the management, operation and administration of the Supreme Court;

             (b)  the direction and supervision of the clerks, officers and employees of the Supreme Court and the registry;

             (c)  an accounting of the fees required to be collected by the clerks, officers and employees of the Supreme Court 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 or a Chief Justice.

             (5)  The Chief Executive Officer shall act under the direction of the Chief Justices in matters of judicial administration.

2013 c16 s5

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Clerks, officers and employees

      60. 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 his or her 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 his or her administrative duties, a justice of the peace.

             (3)  A person ceases to be a justice of the peace on the termination of his or her 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 he or she 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

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Taxing officers

   60.2 (1) The Chief Justice of Newfoundland and Labrador and the Chief Justice of the Trial Division may designate clerks, officers and employees of the Supreme Court appointed under this Part as taxing officers for the Court of Appeal and the Trial Division respectively.

             (2)  A clerk, officer or employee of the Supreme Court 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.

2013 c16 s7

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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 7

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Rep. by 2013 c16 s8

      61. [ Rep. by 2013 c16 s8]

2013 c16 s8

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Duties of clerks, officers and employees

      62. (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

      63. [ Rep. by 2013 c16 s10]

2013 c16 s10

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Rep. by 2013 c16 s10

      64. [ Rep. by 2013 c16 s10]

2013 c16 s10

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Execution of trust estate conveyance

      65. (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

      66. (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 his or her 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

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Accounts

      67. (1) The Chief Executive Officer shall, as soon as possible after the end of every fiscal year, prepare accounts of all money held by the court 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 of the Trial Division, for the information of the judges; and

             (b)  to the minister.

             (2)  The auditor general shall examine and audit the accounts of the court.

2013 c16 s13

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Fees

      68. (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

      69. (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 his or her 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

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Persons entitled to money

      70. (1) A person who may be entitled to money paid into the Consolidated Revenue Fund under section 69 may apply to the Trial Division 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 him or her 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

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Trust funds

      71. (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 7

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Rep. by 2013 c16 s18

      72. [Rep. by 2013 c16 s18]

2013 c16 s 18

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[Rep. by 2013 c16 s18

      73. [Rep. by 2013 c16 s18]

2013 c16 s18

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Rep. by 2013 c16 s18

      74. [Rep. by 2013 c16 s18]

2013 c16 s 18

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Rep. by 2013 c16 s18

      75. [Rep. by 2013 c16 s18]

2013 c16 s 18

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Rep. by 2013 c16 s18

      76. [Rep. by 2013 c16 s18]

2013 c16 s 18

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Masters and taxing officers

      77. 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

      78. (1) The Chief Justice of Newfoundland and Labrador and the Chief Justice of the Trial Division may issue commissions within the province under the seal of the Court of Appeal or the Trial Division 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

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Commissioners outside the province

      79. (1) The Chief Justice of Newfoundland and Labrador and the Chief Justice of the Trial Division may issue commissions outside the province under the seal of the Court of Appeal or the Trial Division 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

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Fees of commissioners

      80. 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

      81. [Rep. by 1991 c39 s24]

1991 c39 s24

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Rep. by 1991 c39 s24

      82. [Rep. by 1991 c39 s24]

1991 c39 s24

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Rep. by 1991 c39 s24

      83. [Rep. by 1991 c39 s24]

1991 c39 s24

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Rep. by 1991 c39 s24

      84. [Rep. by 1991 c39 s24]

1991 c39 s24

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Rep. by 1991 c39 s24

      85. [Rep. by 1991 c39 s24]

1991 c39 s24

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Rep. by 1991 c39 s24

      86. [Rep. by 1991 c39 s24]

1991 c39 s24

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Rep. by 1991 c39 s24

      87. [Rep. by 1991 c39 s24]

1991 c39 s24

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Rep. by 2013 c16 s19

      88. [Rep. by 2013 c16 s19]

2013 c16 s19

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Officers of the court

      89. 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

      90. In civil proceedings in the Supreme Court, law and equity shall be administered by it in accordance with the rules set out in this Part.

1986 c42 s88

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Equitable relief

      91. 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

      92. 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

      93. 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

      94. (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

      95. 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

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

             (2)  Notwithstanding subsection (1), a matter of equity on which an injunction against the prosecution of a proceeding might have been obtained either unconditionally or on any terms and conditions ifThe Newfoundland Judicature Act, 1889 had not been enacted may be relied on as a defence.

1986 c42 s94

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Stay of proceedings

      97. (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

      98. 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

      99. In a proceeding the court shall grant, either absolutely or on those terms and conditions that seem just, all the remedies that the parties may be entitled to in respect of the legal and equitable claims properly brought forward in the proceeding, so that where possible

             (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

   100. 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

   101. 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

   102. (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

   103. (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

   104. 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

   105. (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)  An order made under subsection (1) may be made either unconditionally or upon the terms and conditions that the court thinks just.

             (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

   106. 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

   107. 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

   108. 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

   109. [Rep. by 2010 c29 s3]

2010 c29 s3

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Application

   110. (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

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

1986 c42 s109

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Inventory and valuation

   112. (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

   113. 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

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

1986 c42 s112

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Where caveat or objection

   115. (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

   116. (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

   117. (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

   118. (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

   119. 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

   120. (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 his or her 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

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Appointment of administrator pending action

   121. (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

   122. 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

   123. 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

   124. (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

   125. 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

   126. (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

   127. 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

   128. 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

   129. 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

   130. (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

   131. (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 his or her 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

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Resealing of foreign grants

   132. (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

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

1986 c42 s131

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No arrest

   134. 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

   135. [Rep. by 1996 cJ-1.1 s194]

1996 cJ-1.1 s194

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Rep. by 1996 cJ-1.1 s194

   136. [Rep. by 1996 cJ-1.1 s194]

1996 cJ-1.1 s194

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Particulars of rent

   137. 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

   138. [Rep. by 1998 c6 s16]

1998 c6 s16

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Distress of goods

   139. 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

   140. [Rep. by 1996 cJ-1.1 s194]

1996 cJ-1.1 s194

PART VIII
TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

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References to Court of Appeal

   141. Where in an Act, regulation, rule, order, by-law, agreement or other instrument or document reference is made or could be construed as being made to

             (a)  the Supreme Court of Newfoundland and Labrador sitting as a full bench;

                     (b)  the Appeal Division of the Supreme Court of Newfoundland and Labrador ; or

             (c)  a judge of either of those courts,

the reference shall be taken to mean a reference to the Court of Appeal.

1986 c42 s139; 2001 cN-3.1 s2

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Continuation of proceedings

   142. (1) Where, on September 2, 1986 , a proceeding is before the Court of Appeal of the Supreme Court of Newfoundland and Labrador or a judge of that court

             (a)  the proceeding shall be continued before the Court of Appeal;

             (b)  the judge dealing with the proceeding shall continue to deal with it in his or her capacity as a judge of the Court of Appeal; and

             (c)  all documents required to be filed in or in connection with the proceeding shall be styled "In the Supreme Court of Newfoundland and Labrador , Court of Appeal".

             (2)  On September 2, 1986, the records and files of the Court of Appeal of the Supreme Court of Newfoundland and Labrador, whether concluded or not, continue to be the records and files of the Court of Appeal.

1986 c42 s140; 2001 cN-3.1 s2

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Documents under former style of cause

   143. (1) Where a proceeding before the Court of Appeal of the Supreme Court of Newfoundland and Labrador or a judge of the court is continued under section 142, an affidavit styled in the Court of Appeal of the Supreme Court of Newfoundland and Labrador

             (a)  shall be accepted for filing after September 2, 1986 if it had been sworn or affirmed before September 2, 1986; or

             (b)  may be accepted for filing where it was sworn or affirmed after September 2, 1986 if the court is satisfied that it is impossible or that it would result in undue delay or hardship to have an affidavit sworn or affirmed that is properly styled.

             (2)  The court may, upon the application of a person interested in a proceeding before the Court of Appeal or a judge of that court, give directions

             (a)  as to the filing of documents or matters of procedure in cases for which no provision is made by section 142 or subsection (1); or

             (b)  for the purpose of removing or minimizing a procedural difficulty arising on September 2, 1986 .

1986 c42 s141; 2001 cN-3.1 s2; 2013 c16 s22

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Reference to Trial Division

   144. Where in an Act, regulation, rule, order, by-law, agreement or other instrument or document, reference is made to

             (a)  the Supreme Court of Newfoundland and Labrador sitting other than as a full bench;

             (b)  the Supreme Court of Newfoundland and Labrador without words indicating the division of that court;

                     (c)  the Trial Division of the Supreme Court of Newfoundland and Labrador ; or

             (d)  a judge of those courts,

the reference shall be read as a reference to the Trial Division unless the context otherwise requires.

1986 c42 s142; 2001 cN-3.1 s2

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Continuation of p roceedings

   145. (1) Where, on September 2, 1986 , a proceeding is before the Trial Division of the Supreme Court of Newfoundland and Labrador or a judge of that court

             (a)  the proceeding shall be continued before the Trial Division;

             (b)  the judge dealing with the proceeding shall continue to deal with it in his or her capacity as a judge of the Trial Division; and

             (c)  all documents required to be filed in or in connection with the proceeding shall be styled "In the Supreme Court of Newfoundland and Labrador , Trial Division".

             (2)  On September 2, 1986 , the records and files of the Trial Division of the Supreme Court, whether concluded or not, continue to be the records and files of the Trial Division.

1986 c42 s143; 2001 cN-3.1 s2

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Cases referred back on appeal

   146. Where a proceeding

             (a)  that was before the Trial Division of the Supreme Court prior to September 2, 1986 ; and

             (b)  as a result of an appeal

                      (i)  has, before or after September 2, 1986 , been referred back to that court to be further dealt with, or

                     (ii)  after September 2, 1986 would, except for this section, have been referred back to that court to be further dealt with,

the proceeding shall be dealt with by the Trial Division as though the proceeding had instead been before that court.

1986 c42 s144

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Documents under former style of cause

   147. (1) Where a proceeding before the Trial Division of the Supreme Court or a judge of that court is continued under section 145, an affidavit styled in the Trial Division of the Supreme Court

             (a)  shall be accepted for filing after September 2, 1986 if it was sworn or affirmed before September 2, 1986 ; or

             (b)  may be accepted for filing where it was sworn or affirmed after September 2, 1986 if the court is satisfied that it is impossible or that it would result in undue delay or hardship to have an affidavit sworn or affirmed that is properly styled.

             (2)  The court may, upon the application of a person interested in a proceeding before the Supreme Court, give directions

             (a)  as to the filing of documents or matters of procedure in cases for which no provision is made by section 145 or subsection (1); and

             (b)  for the purpose of removing or minimizing a procedural difficulty arising on September 2, 1986 .

1986 c42 s145; 2013 c16 s23

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Continuation of proceedings

   148. (1) Where, on September 2, 1986 , a proceeding is before the District Court of Newfoundland or a judge of that court

             (a)  the proceeding shall be continued before the Trial Division;

             (b)  the judge dealing with the proceeding shall continue to deal with it in his or her capacity as a judge of the Trial Division; and

             (c)  all documents required to be filed in or in connection with the proceeding shall after September 2, 1986 be styled "In the Supreme Court of Newfoundland and Labrador , Trial Division".

             (2)  On September 2, 1986 , the records and files of the District Court of Newfoundland whether concluded or not, become the records and files of the Trial Division.

1986 c42 s149; 2001 cN-3.1 s2

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Cases referred back on appeal

   149. Where a proceeding

             (a)  that was before the District Court of Newfoundland prior to September 2, 1986 ; and

             (b)  as a result of an appeal

                      (i)  has, before or after September 2, 1986 , been referred back to that court to be further dealt with, or

                     (ii)  after September 2, 1986 would, except for this section, have been referred back to that court to be further dealt with,

the proceeding shall be dealt with by the Trial Division as though the proceeding had instead been before that court.

1986 c42 s150

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Documents under former style of cause

   150. (1) Where a proceeding before the District Court of Newfoundland or a judge of that court is continued under section 148, an affidavit styled in the District Court of Newfoundland

             (a)  shall be accepted for filing after September 2, 1986 if it was sworn or affirmed before September 2, 1986 ; or

             (b)  may be accepted for filing where it was sworn or affirmed after September 2, 1986 if the court is satisfied that it is impossible or that it would result in undue delay or hardship to have an affidavit sworn or affirmed that is properly styled.

             (2)  The court may, upon the application of a person interested in a proceeding before the Trial Division, give directions

             (a)  as to the filing of documents or matters of procedure in cases for which no provision is made by section 148 or subsection (1); and

             (b)  for the purpose of removing or minimizing a procedural difficulty arising on September 2, 1986 .

1986 c42 s151; 2013 c16 s24