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RSNL1990 CHAPTER S-16

SMALL CLAIMS ACT

Amended:

1996 cJ-1.1 s202; 1997 c12; 1997 c13 s67; 1998 c6 s24; 1999 c22 s23;
2001 cN-3.1 s2; 2010 c9; 2012 c22 s7

CHAPTER S-16

AN ACT RESPECTING SMALL CLAIMS

Analysis



Short title

        1. This Act may be cited as the Small Claims Act.

1979 c34 s1

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Definitions

        2. In this Act

             (a)  "chief judge" means the Chief Provincial Court Judge;

             (b)  "court" means the Provincial Court of Newfoundland and Labrador , established by theProvincial Court Act;

          (b.1)  "creditor" means a person who, by order of the court, a debtor is required to pay;

          (b.2)  "debtor" means a person, who by order of the court, is required to pay a creditor;

             (c)  "judge" means a Provincial Court judge; and

             (d)  "small claim" means a claim under this Act.

1979 c34 s2; 1997 c12 s1; 2001 cN-3.1 s2

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Jurisdiction

        3. (1) A judge has jurisdiction to try and adjudicate upon a claim for

             (a)  debt, whether payable in money or otherwise;

             (b)  damages, including damages for breach of contract;

             (c)  specific performance of an agreement relating to personal property or services; or

             (d)  recovery of personal property

where the amount claimed does not exceed the amount prescribed by regulation including, for the purpose of paragraphs (a) and (b), claims within that amount for the recovery of taxes or charges under the City of St. John's Act , the City of Corner Brook Act , the City of Mount Pearl Act or the Municipalities Act, 1999 or under a regulation, order or by-law made under those Acts.

             (2)  A judge does not have jurisdiction to hear or adjudicate upon a claim or counterclaim

             (a)  in which the title to land is brought into question;

             (b)  in which the validity of a devise, bequest or limitation is disputed;

             (c)  for malicious prosecution, false imprisonment or defamation; or

             (d)  against a judge of a court, justice or public officer for anything done by him or her while executing the duties of his or her office.

             (3)  The Lieutenant-Governor in Council may make regulations prescribing the maximum amount of a claim over which a judge has jurisdiction under subsection (1).

1979 c34 s3; 1985 c15 s445; 1988 c35 s443; 1990 c16 s1; 1997 c12 s2; 2010 c9 s1; 2012 c22 s7

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Representation

        4. In proceedings under this Act, a party may be represented by

             (a)  a solicitor;

             (b)  an articled clerk; or

             (c)  an agent.

             (2)  Where a judge, presiding over proceedings under this Act, finds that an agent, appearing on behalf of a party, is not competent to properly represent the party, or does not understand and comply at the proceedings with the duties and responsibilities of an advocate, the judge may exclude the agent from the proceedings.

1997 c12 s3

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Matters beyond jurisdiction

        5. (1) A plaintiff may not divide a cause of action for the purpose of bringing 2 or more claims before a judge in respect of that cause of action, but where it appears that

             (a)  the claim of a plaintiff; or

             (b)  the counterclaim of a defendant

is in excess of the amount prescribed by regulation, the plaintiff or the defendant may, in writing, signed by him or her, abandon that part of his or her claim that is in excess of the jurisdiction of the judge and, in that event, he or she forfeits the excess and is not entitled to recover it in another action.

             (2)  Where in proceedings before a judge a defence or counterclaim of the defendant involves a matter beyond the jurisdiction of the judge, the defence or counterclaim does not affect the competence or the duty of the judge to dispose of the whole matter in controversy so far as it relates to the claim of the plaintiff and the defendant.

             (3)  Notwithstanding subsection (2), no relief exceeding that which the judge has jurisdiction to administer shall be given to the defendant upon the counterclaim.

1979 c34 s4; 1997 c12 s4

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Transfer of proceeding

        6. (1) Where there is a counterclaim for relief that exceeds the jurisdiction of the judge, a party to the proceeding may apply for an order that the whole proceeding be transferred to the Trial Division.

             (2)  An application under subsection (1) may be made, in the manner set out by the rules committee, to the Trial Division.

             (3)  A judge of the Trial Division, on application under subsection (1), may

             (a)  order that the whole proceeding be transferred to the Trial Division and a record of the proceedings be transmitted by the Provincial Court judge to that court; or

             (b)  order that the proceeding be heard and determined by the Provincial Court judge with direction from the Trial Division judge as the Trial Division judge thinks desirable, notwithstanding that the amount involved may be beyond the jurisdiction of a Provincial Court judge.

             (4)  Where a Provincial Court judge makes a determination under paragraph (3)(b), the relief that judge may grant is not limited by the amount prescribed under subsection 3(3).

1979 c34 s5; 1986 c42 Sch B; 1997 c12 s5; 1997 c13 s67

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Rules

        7. (1) A rules committee consisting of

             (a)  2 judges, 1 of whom is the chief judge;

             (b)  a member of the Law Society of Newfoundland designated by the benchers of that society; and

             (c)  1 person designated by the Attorney General,

may make rules consistent with this Act in relation to the practice, procedure and costs of the court, including regulating the recording, pleading, practice and procedure, including 3rd party proceedings.

             (2)  Rules made under subsection (1) are subordinate legislation for the purposes of the Statutes and Subordinate Legislation Act.

             (3)  The rules committee may set a scale of fees to be taken by the clerks of the court for filing documents under this Act.

1979 c34 s6; 1997 c13 s67

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Rep. by 1998 c6 s24

        8. [Rep. by 1998 c6 s24]

1998 c6 s24

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Subpoena

        9. (1) In a proceeding under this Act the court has power to subpoena a person who is alleged to be a necessary witness to appear before a judge to give evidence in a proceeding.

             (2)  Where a person served with a subpoena neglects or refuses to appear and no just cause is shown for that neglect or refusal and it is proved that the person was served with a copy of the subpoena and was given his or her witness fee, a justice may issue a warrant to bring that person before a judge to give evidence.

1979 c34 s7

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Enforcement

      10. (1) Judgments and orders of a judge may be enforced under the Judgment Enforcement Act.

             (2)  Judgments and orders of a judge may be enforced by orders for payment, including payment schedules, and by payment hearings, in accordance with the rules.

             (3)  Where a judge orders a payment schedule under the rules, that order shall be considered to be an instalment order issued under subsection 146(2) of the Judgment Enforcement Act .

             (4)  A subpoena, summons or order, other than an order for the payment of money, including the payment of money by a payment schedule, issued by the court or given by a judge, is enforceable by contempt.

             (5)  The penalties for contempt shall be as prescribed by the rules.

1979 c34 s8; 1996 cJ-1.1 s202; 1997 c12 s6

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Payment and non- compliance hearings

      11. (1) The rules committee may make rules which provide for the enforcement of judgments and the examinations of persons at payment hearings, including rules

             (a)  which require a debtor or another person to appear for a payment hearing at a time and place mentioned in the summons;

             (b)  which require a debtor or another person to bring to a payment hearing those documents which may be described in the summons;

             (c)  giving debtors and creditors a right to request a payment hearing; and

             (d)  prescribing the types of evidence which may be brought before the court at a payment hearing.

             (2)  A judge may

             (a)  order a payment hearing;

             (b)  cancel or postpone a hearing where a creditor does not attend the hearing;

             (c)  issue a warrant to bring a person before the court; and

             (d)  provide a remedy at the conclusion of a payment hearing,

in accordance with the rules.

             (3)  An examination of the debtors means shall be held in private and no person other than the judge, the court officers, the creditor and the debtor and their representatives may be present.

             (4)  The judge may make an order for periodic payment that he or she thinks appropriate and that payment order shall be considered to be an instalment order issued under subsection 146(2) of the Judgment Enforcement Act.

1997 c12 s7; 1999 c22 s23

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Evidence

      12. The judge shall ensure that a complete record of the evidence at a trial under this Act is taken in writing or by a sound recording machine as provided under the Recording of Evidence Act.

1979 c34 s10

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Change of judge

      13. (1) Where the court issues a summons, any judge may later continue the proceedings, including enforcing a judgment order of another judge.

             (2)  A subpoena, summons or order issued by the court shall not be avoided because the judge who signed the subpoena, summons or order dies or ceases to hold office.

1979 c34 s11

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Appeals

      14. (1) A party to a proceeding may appeal from a judgment or order of a judge to the Trial Division.

             (2)  Where an appeal is taken, the appellant shall give written notice of the appeal within 30 days of the judgment or order to the court and to the other parties in the proceeding.

             (3)  The rules of procedure relating to an appeal to the Supreme Court apply with the necessary changes to an appeal under this section.

1979 c34 s12; 1982 c9 s14; 1986 c42 Sch B