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3rd Session, 40th Legislature

This HTML version is provided for ease of use and is based on the bilingual version that was distributed in the Legislature after First Reading.

Bill 64

THE COURT OF QUEEN'S BENCH SMALL CLAIMS PRACTICES AMENDMENT ACT


  Bilingual version (PDF) Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. C285 amended

1           The Court of Queen's Bench Small Claims Practices Act is amended by this Act.

2(1)        Subsection 1(1) is amended by adding the following definitions:

"court" means the Court of Queen's Bench of Manitoba; (« tribunal »)

"small claims rules" means the rules of the court specifically applicable to claims under this Act. (« règles des petites créances »)

2(2)        Subsection 1(1) is further amended

(a) in the definition "document", by striking out "statement" and substituting "claim"; and

(b) in the definitions "défendeur" and "demandeur" of the French version, by striking out "à la Cour" and substituting "au tribunal".

2(3)        Subsection 1(2) of the English version is amended by striking out "The Queen's Bench Act" and substituting "The Court of Queen's Bench Act".

2(4)        Subsection 1(4) is amended by striking out "rules specifically applicable to claims under this Act" and substituting "the small claims rules".

3           The following is added after section 2:

Court officer to hear claims

2.1(1)      Subject to subsection (2), a claim under this Act must be heard and decided by a court officer.

When claim heard by judge

2.1(2)      A claim under this Act must be heard and decided by a judge if

(a) the government or an agency of the government is a party to the claim;

(b) a person or entity specified in the regulations is a party to the claim; or

(c) a court officer directs that, in the interest of the administration of justice, the claim be heard and decided by a judge.

4           Section 4 is amended

(a) by replacing the section heading of the English version with "Counterclaims not exceeding $10,000"; and

(b) by striking out "the rules of court applicable to actions and proceedings under this Act" and substituting "the small claims rules".

5           The centred heading "COMMENCING A CLAIM" is added before subsection 6(1).

6(1)        Subsection 6(1) is replaced with the following:

Commencing a claim

6(1)        A person making a claim under this Act must, in accordance with the small claims rules, file a claim at an administrative centre of the court in the form required by the small claims rules. The claim must be signed by the person making the claim and set out the particulars of the claim.

6(2)        Subsection 6(2) is amended by striking out "statement" wherever it occurs and substituting "claim".

6(3)        The following is added after subsection 6(2):

Service of claim

6(2.1)      The claimant must serve a copy of the claim upon each defendant against whom the claim is made.

6(4)        Subsection 6(3) is amended

(a) by striking out "statement" wherever it occurs and substituting "claim"; and

(b) by striking out "on application" and substituting "on motion".

6(5)        Subsection 6(4) is repealed.

7(1)        Subsection 8(1) is replaced with the following:

Hearing date

8(1)        Upon the filing of a claim under subsection 6(1), the court officer must

(a) set a date for the hearing of the claim; and

(b) set out on the claim form the hearing date and the place where the claim will be heard.

7(2)        Subsection 8(2) is repealed.

8           The following is added after section 8:

PROCEDURE FOR CLAIMS

Authorized agent for a party

8.1         Subject to The Legal Profession Act, another person may act on behalf of a party to a proceeding under this Act.

Adjournments

8.2         A judge or court officer may adjourn a claim or other proceeding under this Act to another date.

Interlocutory proceedings

8.3         Except as provided for in this Act, no interlocutory proceedings shall be taken.

Admissible evidence

8.4(1)      In a hearing under this Act, a judge or court officer may admit as evidence anything that the judge or court officer considers relevant to an issue, whether or not it would be admissible under the laws of evidence.

Exception

8.4(2)      A judge or court officer may not admit anything under subsection (1) that is subject to solicitor-client privilege or privileged under the laws of evidence.

Evidence of witnesses

8.5         Witnesses in a hearing under this Act must give evidence under oath or affirmation, and the judge or court officer presiding at the hearing may administer the oath or affirmation.

Declaration of partners

8.6         Where a partnership is a party to a proceeding under this Act, any person appearing at a hearing for the partnership or for any member of the partnership must declare the names and addresses of all the partners in the partnership, and that information must be entered on the claim by the judge or court officer.

Third party proceedings

8.7(1)      Where it appears to a judge or court officer at a hearing of a claim that a party against whom a claim or counterclaim is made may be entitled to contribution or indemnity from a person who is not a party to the claim, the judge or court officer may direct that the party serve upon the other person an order referred to in subsection (2).

Contents of order

8.7(2)      The order must

(a) be signed by the judge or court officer;

(b) contain a simple statement of the nature of relief sought by way of contribution or indemnity;

(c) be accompanied by a copy of the claim filed under section 6; and

(d) set out the hearing date.

Evidence at the hearing

8.8(1)      At a hearing under this Act the evidence must be recorded in accordance with The Manitoba Evidence Act.

If evidence not recorded

8.8(2)      If, for any reason, the evidence at a hearing cannot be recorded,

(a) a summary of the evidence must be prepared by the judge or court officer who presided at the hearing; and

(b) a copy of the summary must be given to each of the parties, on request.

Further service required

8.9         Where a person whose attendance as a witness is required and upon whom a subpoena is served otherwise than by personal service does not appear as required by the subpoena, the person must not be arrested for failure to appear and no proceeding must be taken to enforce attendance of the person or to punish the person for contempt of court or otherwise unless a further subpoena requiring the person to appear is personally served on the person and the person fails to comply with the subpoena.

9           Sections 9 to 13 are replaced with the following:

DECISION ON CLAIM

Decision on claim

9(1)        After hearing the evidence and submissions, the judge or court officer must decide the claim, including any counterclaim or set-off.

Decision if defendant does not appear at hearing

9(2)        If a defendant does not appear at the hearing of the claim, the judge or court officer must allow the claimant to prove service of the claim, and

(a) hear and decide the claim in the absence of the defendant; and

(b) dismiss any counterclaim made by the defendant.

Certificate of decision

9(3)        After a hearing under this section, the judge or court officer must

(a) issue a certificate of decision and a summary of the reasons for the decision; and

(b) provide a copy of the certificate of decision and the summary of reasons to each of the parties.

Judgment of the court

9(4)        A certificate of decision issued under this section is a judgment of the court and may be enforced as a judgment of the court.

Correcting errors in a certificate of decision

10          A judge or court officer may, on his or her own initiative, or on the application of a party, correct errors in a certificate of decision under this Act that arise from a clerical error or omission.

SETTING ASIDE DECISION IF DEFENDANT DID NOT APPEAR AT HEARING

Application to set aside decision made under subsection 9(2)

11(1)       A defendant who did not appear at the hearing of a claim may file an application, in the form required by the small claims rules, to have the decision made under subsection 9(2) set aside.

Filing an application

11(2)       The defendant must

(a) file the application at the administrative centre of the court where the claim was filed; and

(b) provide sufficient copies of the application to the court officer to have one copy on file and one copy for each party.

Hearing date

11(3)       Upon the filing of the application, the court officer must

(a) set a date for the hearing of the application; and

(b) set out the hearing date and the place where the application will be heard on the application form.

Serving the application

11(4)       The defendant must serve a copy of the application on each other party within 20 days after filing the application, unless the time is extended, on motion, by an order of a court officer.

Who hears the application

11(5)       An application to set aside a decision under subsection 9(2) must be heard and decided

(a) by a judge, if a judge made the decision; or

(b) by a court officer, if a court officer made the decision.

Setting aside the decision made under subsection 9(2)

11(6)       After a hearing, the judge or court officer may set aside the decision made under subsection 9(2) if he or she is satisfied that

(a) the defendant did not wilfully or deliberately fail to appear at the hearing;

(b) the defendant filed an application to set aside the decision under section 9 as soon as reasonably possible after obtaining knowledge of it, or gave an explanation for any delay in filing the application; and

(c) it is fair and just in the circumstances to allow the decision to be set aside.

Order and notice of hearing

11(7)       The judge or court officer must

(a) issue an order with respect to his or her decision under this section;

(b) if the decision under subsection 9(2) is set aside, set a date for a new hearing of the claim; and

(c) provide a copy of the order to each of the parties and, if applicable, a notice of the new hearing date.

Decision set aside is null and void

11(8)       A decision under subsection 9(2) that is set aside is null and void from the date of the decision to set it aside.

If decision not set aside

11(9)       If the judge or court officer does not set aside the decision made under subsection 9(2), that decision remains in effect and may be enforced as a judgment of the court.

No appeal

11(10)      The decision of a judge or court officer under this section is final and not subject to appeal.

NEW HEARING IF DECISION SET ASIDE

New hearing of claim

11.1(1)     The new hearing of a claim may be heard before the same judge or court officer, as the case may be, who made the decision about the claim under subsection 9(2) or the decision to set it aside under section 11.

Certificate of decision

11.1(2)     After the new hearing, the judge or court officer must

(a) issue a certificate of decision and a summary of the reasons for the decision; and

(b) provide a copy of the certificate of decision and the summary of reasons to each of the parties.

Judgment of the court

11.1(3)     A certificate of decision issued under this section is a judgment of the court and may be enforced as a judgment of the court.

APPEAL FROM DECISION OF COURT OFFICER TO JUDGE OF COURT OF QUEEN'S BENCH

Appeal with leave of a judge

12(1)       A party may appeal a decision made by a court officer under section 9 or 11.1 to a judge of the court on a question of law or jurisdiction, with leave of a judge.

Leave to appeal and notice of appeal filed

12(2)       Within 30 days after the certificate of decision under section 9 or 11.1 is filed in the court, the party who is appealing must file an application for leave to appeal and notice of appeal in the form required by the small claims rules, at the administrative centre of the court where the claim was filed.

Extending time for filing appeal

12(3)       A judge may extend the time for filing an application for leave to appeal and notice of appeal under subsection (2), on motion by the person appealing.

Appointment for hearing

12(4)       Upon the filing of the application for leave to appeal and notice of appeal, a court officer must

(a) set a date and place for the hearing of the application for leave to appeal and notice of appeal; and

(b) issue an appointment in the form required by the small claims rules with the details as to the date and place for the hearing.

Service

12(5)       The party appealing the decision must serve a copy of the application for leave to appeal and notice of appeal, as well as the appointment, on each other party within 20 days after filing the application, unless a judge, on motion by the party appealing, extends the time for service.

Stay if appeal taken

12(6)       Upon the filing of an application for leave to appeal and notice of appeal, all proceedings to enforce the decision made under section 9 or 11.1 are stayed as of the date the application is filed.

Stay continues

12(7)       The stay under subsection (6) continues in effect

(a) until the application for leave to appeal is dismissed; or

(b) if leave to appeal is granted, until further order of the court.

Judge to direct conduct of appeal

12(8)       If a judge grants leave to appeal, that judge must set the date and place for the hearing of the appeal and direct the parties as to the following matters with respect to the appeal:

(a) whether the appeal will be heard by oral argument or by a new hearing of the evidence;

(b) what written materials must be filed and served and the time periods for doing so;

(c) whether a transcript of the proceedings before the court officer will be required for the appeal.

Transcript may be limited

12(9)       If the judge determines that a transcript of the proceedings before the court officer is required, the judge may direct that the transcription be limited to that which is relevant to the appeal.

Decision on appeal

12(10)      The judge hearing the appeal may

(a) confirm the court officer's decision; or

(b) set aside the court officer's decision and make any decision that the court officer could have made;

and must give directions with respect to the stay, in accordance with clause (7)(b).

Certificate of decision

12(11)      After an appeal hearing, the judge must

(a) issue a certificate of decision; and

(b) provide a copy of the certificate of decision to each of the parties.

Judgment of the court

12(12)      A certificate of decision issued under this section is a judgment of the court and may be enforced as a judgment of the court.

No appeal to Court of Appeal

13          A decision of a judge under section 12 is final and not subject to a further appeal.

10          The centred heading "COSTS AND DISBURSEMENTS" is added before section 14.

11          Section 15 is replaced with the following:

APPEAL FROM DECISION OF JUDGE TO COURT OF APPEAL

Appeal to Court of Appeal

15(1)       A party may appeal a decision made by a judge under section 9 or 11.1 to The Court of Appeal on a question of law or jurisdiction, with leave of a judge of that court.

Leave to appeal and notice of appeal

15(2)       Within 30 days after the certificate of decision under section 9 or 11.1 is filed in the Court of Queen's Bench, the party who is appealing must file an application for leave to appeal and notice of appeal with The Court of Appeal, in the form and manner required by the rules of that court.

Decision on appeal

15(3)       If leave to appeal is granted, The Court of Appeal may

(a) confirm the decision of the judge of the Court of Queen's Bench; or

(b) set aside the judge's decision and make any order that the judge of the Court of Queen's Bench could have made.

12          The centred heading "GENERAL MATTERS" is added before section 16.

13          Section 18 is amended by striking out "the rules" and substituting "the small claims rules".

14(1)       Subsection 20(1) is replaced with the following:

Failure of claimant to appear

20(1)       If a claimant does not appear at the hearing of a claim, the judge or court officer may

(a) dismiss the claim without hearing any evidence; or

(b) adjourn the hearing to a specified date, on such terms and conditions as the judge or court officer may direct.

14(2)       Subsection 20(2) is amended by striking out "give default judgment against the claimant" and substituting "hear and decide the counterclaim".

14(3)       The following is added after subsection 20(2):

Provisions applicable to counterclaims

20(3)       The provisions of this Act with respect to hearing and deciding a claim apply, with necessary changes, to hearing and deciding a counterclaim.

15(1)       Clause 21(1)(b) is amended by striking out "a grown person" and substituting "a person who appears to be at least 16 years old".

15(2)       Subsection 21(2) is amended by striking out "judge or".

16          Section 23 is repealed.

17          The following is added as section 24:

Regulations

24          The Lieutenant Governor in Council may make regulations

(a) specifying persons or entities for the purpose of clause 2.1(2)(b);

(b) respecting any matter the Lieutenant Governor in Council considers necessary or advisable for the purpose of this Act.

Coming into force and application

18          This Act comes into force on a day to be fixed by proclamation and applies to claims filed in the court under this Act on or after that date.

Explanatory Note

This Bill amends The Court of Queen's Bench Small Claims Practices Act. The key changes are as follows:

  • The Bill specifies the matters that may be decided by a court officer and the matters that must be decided by a Queen's Bench judge. Matters involving the provincial government or a government agency must be decided by a judge.
  • Evidence given at a hearing must be recorded.
  • If a defendant does not appear at the hearing after being properly served, the judge or court officer can hear and decide the claim in the absence of the defendant. The defendant may bring an application before a judge or court officer to have that decision set aside if there are valid reasons for doing so. If the decision is set aside there will be a new hearing of the claim.
  • An appeal from a decision made by a court officer may be brought to the Court of Queen's Bench on a legal point with leave of a judge. If leave to appeal is granted, the judge will direct how the appeal hearing will be conducted. There is no further appeal.
  • An appeal from a decision made by a Queen's Bench judge may be brought to The Court of Appeal on a legal point with leave of a judge of The Court of Appeal. The rules of The Court of Appeal govern the proceedings.