Skip to main content
The Court of Queen's Bench Act

S.M. 1988-89, c. 4

Bill 10, 1st Session, 34th Legislature

The Court of Queen's Bench Act

(Assented to November 16, 1988)

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

PART I

DEFINITIONS

Interpretation

1           In this Act,

"action" means a civil proceeding, other than an application, that is commenced in the court by

(a) a statement of claim,

(b) a counterclaim,

(c) a crossclaim,

(d) a third or subsequent party claim, or

(e) a petition; («action»)

"application" means a civil proceeding, other than an action, that is commenced in the court by a notice of application; («requête»)

"centre" means an administrative centre or a judicial centre as designated under section 17 of this Act; («centre»)

"chief justice" means the Chief Justice of the Queen's Bench; («juge en chef »)

"civil proceeding" or "proceeding" means an action or application commenced or made in the court; («instance civile» ou « instance»)

"court" means the Court of Queen's Bench of Manitoba and includes the Court of Queen's Bench of Manitoba (Family Division); («Cour» ou «tribunal»)

"family division" means the Court of Queen's Bench of Manitoba (Family Division); («Division de la famille»)

"hearing" includes a trial; («audience»)

"judge" means a judge of the court or any division thereof, and includes the Chief Justice of the Queen's Bench, the Associate Chief Justice of the Queen's Bench and the Associate Chief Justice of the Queen's Bench (Family Division); («juge»)

"master" means a master of the court appointed under section 11 and includes the senior master; («conseiller-maître»)

"motion" means a motion in a proceeding or an intended proceeding; («motion»)

"order", except as defined in Part XIV, means an order of the court and includes a judgment; («ordonnance»)

"personal property" means property other than real property and includes goods, chattels, money, currency, debts, rents, legacies, stocks, shares, bonds, debentures or other securities and other demands due or accruing due; («biens personnels»)

"registrar" means a registrar of the court appointed under section 12 and includes a deputy registrar; («registraire»)

"rules" means the Queen's Bench Rules made under Part XVI of this Act. («règles»)

PART II

CONSTITUTION OF THE COURT

Continuation of Court

2           Her Majesty's Court of Queen Bench for Manitoba shall continue as a superior court of record, having civil and criminal jurisdiction, under the name of the "Court of Queen's Bench of Manitoba".

Name of Court

3           The court shall, during the reign of a Queen, be called the "Court of Queen's Bench of Manitoba" and, during the reign of a King, the "Court of King's Bench of Manitoba", and in all documents and proceedings in the court may be designated and described as the "Queen's Bench" or the "King's Bench", as the case may be.

Family Division

4           There shall be a division of the court called the "Court of Queen's Bench of Manitoba (Family Division)" or the "Court of King's Bench of Manitoba (Family Division)", as the case may be, and in all documents and proceedings in the family division may be designated and described as the "Queen's Bench (Family Division)" or the "King's Bench (Family Division)".

Composition of Court

5(1)        Subject to subsection (2), the court shall consist of the following offices:

(a) the Chief Justice who shall be called the "Chief Justice of the Queen's Bench";

(b) the Associate Chief Justice of the Queen's Bench who shall be called the "Associate Chief Justice of the Queen's Bench" and who shall be the senior associate chief justice;

(c) the Associate Chief Justice of the Queen's Bench (Family Division) who shall be called the "Associate Chief Justice of the Queen's Bench (Family Division)"; and

(d)27 other judges, of whom

(i)22 are judges of the court, other than the family division, and

(ii)5 are judges of the family division.

Additional offices

5(2)        The court shall consist of as many additional judicial offices as are required for purposes of subsections (3) and (4).

C.J.Q.B., A.C.J.Q.B. election

5(3)        Where the requirements of the Judges Act (Canada) are otherwise met, the Chief Justice, the Associate Chief Justice of the Queen's Bench or the Associate Chief Justice of the Queen's Bench (Family Division), may elect to cease to perform the duties of chief justice or associate chief justice and to perform the duties of a judge of the court.

Supernumerary election

5(4)        Where the requirements of the Judges Act (Canada) are otherwise met a judge may elect to act as a supernumerary judge.

L.G. in C. may increase judges

6           The Lieutenant Governor in Council may by regulation increase the number of judges under clause 5(l)(d) but may not, by revoking a regulation or otherwise, decrease the number of judges under clause 5(l)(d).

PART III

JUDGES OF THE COURT

Oath or affirmation by Judges

7           A judge shall, before entering on the duties of office, take the following oath or affirmation to be administered by the Lieutenant Governor or a judge:

I,          , solemnly and sincerely promise and swear (affirm) that I will duly and faithfully and to the best of my skill and knowledge exercise the powers and trusts reposed in me as (title of office) of the Court of Queen's Bench of Manitoba.

So Help Me God (omit this line where person affirms)

Powers of a Judge

8           A judge has all the powers, rights, incidents, privileges and immunities of a judge of a superior court of record, and all other powers, rights, incidents, privileges and immunities as they were, on and prior to July 15, 1870, used, exercised and enjoyed by any of the judges of any of the superior courts of law or equity in England.

Residence of Chief Justice

9(1)        The Chief Justice shall reside in, or in the vicinity of, the City of Winnipeg.

Residence of judges

9(2)        A judge shall, upon appointment, reside in, or in the vicinity of, the judicial centre that the Lieutenant Governor in Council, with the recommendation of the Attorney General after consultation with the Chief Justice, may direct.

Change in residence

9(3)        Where a judge establishes a residence in accordance with a direction made under subsection (2), the judge shall not afterwards

(a) be directed to move the residence to, or to the vicinity of, another judicial centre unless the judge consents to the move;

(b) move the residence to, or to the vicinity of, another judicial centre unless the Lieutenant Governor in Council, with the recommendation of the Attorney General after consultation with the Chief Justice, approves the move.

Judges away from Winnipeg

9(4)        Not less than three judges shall reside in, or in the vicinity of, a judicial centre located outside The City of Winnipeg.

Meetings of Judges

10          The Chief Justice shall, whenever necessary and at least once in each year, convene a meeting of the judges for the purpose of dealing with matters relating to the administration of and practice in the courts or for any purpose relating to the administration of justice or for the purposes of an Act of the Legislature.

PART IV

OFFICERS OF THE COURT

Appointment of masters

11(1)       The Lieutenant-Governor in Council may appoint a senior master and one or more masters of the court.

Jurisdiction of a master

11(2)       A master has jurisdiction as provided by statute or the rules.

Provincial court judge a master

11(3)       A judge of the Provincial Court of Manitoba (Family Division) is ex officio a master and may, as directed by the Chief Justice, act as a master.

Appointment of registrars

12(1)       The Lieutenant-Governor in Council may appoint one or more registrars and one or more deputy registrars.

Powers and duties of registrars

12(2)       A registrar has powers and duties as provided by statute or the rules.

Powers of deputy registrar

12(3)       A deputy registrar has the powers of a registrar.

Assess. officer and official examiner

13(1)       A master may act as an assessment officer or an official examiner.

Additional officers and examiners

13(2)       The Lieutenant Governor in Council may appoint a person who is not a master to act as an assessment officer or as an official examiner.

Powers and duties

13(3)       An assessment officer or an official examiner has the powers and duties provided by statute or the rules.

General Powers

14          A master, registrar, deputy registrar, assessment officer or official examiner, when exercising the powers and discharging the duties provided by statute or by the rules,

(a) is an officer of the court; and

(b) may administer an oath or an affirmation and may examine a party or a witness.

Exemption from liability

15          Where an officer of the court, in exercising the powers and performing the duties of the officer, acts in good faith, an action shall not be brought against the officer with respect to an act of the officer unless the act is malicious and is done without reasonable grounds.

Sheriffs, peace officers, etc.

16          A sheriff, correctional officer or a peace officer shall assist and obey the court in the exercise of its jurisdiction.

PART V

ADMINISTRATIVE AND JUDICIAL CENTRES

Establishment of centres

17(1)       The Lieutenant-Governor in Council may, upon recommendation of the Attorney-General after consultation with the Chief Justice of the Queen's Bench, by order,

(a) designate a city, town or village within Manitoba as an administrative centre of the court;

(b) designate an administrative centre as a judicial centre of the court where regular sittings of the court may be held for

(i) hearings of applications,

(ii) trials of a civil action conducted with a jury,

(iii) trials of a civil action conducted without a jury,

(iv) trials of a criminal action conducted with a jury,

(v) trials of a criminal action conducted without a jury, or

(vi) hearings or trials under two or more of subclauses (i) to (v).

Designation of court services

17(2)       Where an administrative centre is established under clause 17(l)(a), the Lieutenant Governor in Council shall establish an administrative office for the court at the centre and may determine the court services that are provided at the centre.

Transfer on Change of Centre

18(1)       Where a city, town or village

(a) ceases to be a judicial centre; or

(b) is designated as a judicial centre,

the Chief Justice may, by order, direct that a proceeding or a class of proceedings be transferred to and continued in a judicial centre named in the order.

Deemed transfer

18(2)       Where an order is made under subsection (1), a proceeding to which the order relates is, upon the making of the order, a proceeding in the centre to which the proceeding is transferred.

Transfer of documents on change

18(3)       Where a city, town or village ceases to be an administrative centre, the Chief Justice shall

(a) direct the transfer of the papers, documents and records of the court to a successor administrative centre; and

(b) take such other administrative action as is necessary in the circumstances.

PART VI

COURT ADMINISTRATION

Attorney-General supervises

19          The Attorney General shall supervise all matters connected with the provision and management of court services.

Court staff under Chief Justice

20(1)       In matters that are assigned by law to the judiciary, a master, registrar, court clerk, court reporter, interpreter or other court staff person shall act under the direction of the Chief Justice.

Court staff under presiding judge

20(2)       Where a court staff person is assigned to a hearing, the person shall act under the direction of the presiding judge while the hearing is in session.

Stand-by court staff

20(3)       A court staff person shall, upon assignment to stand-by duty, act under the direction of the judge who presides, or is scheduled to preside, at a hearing.

Court offices open to public

21          The offices of the court at each administrative centre shall be open to the public on such days and during such hours as the Lieutenant Governor in Council directs.

The court seal

22(1)       A court seal, which shall be approved by the Lieutenant Governor in Council, shall be kept in the custody of the registrar or the deputy registrar at the administrative offices of the court in each administrative centre.

Seal on documents issued

22(2)       A document issued by the court in a civil proceeding shall bear the seal.

Effect of the seal

22(3)       A document bearing the seal of the court is sufficient proof of the authenticity of the document.

Prisons of the court

23          A correctional institution in Manitoba is a prison of the court.

PART VII

JUDICIAL ADMINISTRATION

Duties of the Chief Justice

24(1)       The Chief Justice shall be responsible for the judicial functions of the court, including direction over sittings of the court and the assignment of judicial duties.

Duties of Associate Chief Justices

24(2)       The Associate Chief Justice of the Queen's Bench and the Associate Chief Justice of the Queen's Bench (Family Division) shall carry out administrative duties assigned to them by the Chief Justice.

Absence of Chief Justice

25          Where the Chief Justice is absent or unable to act, the powers and duties of the Chief Justice shall devolve in the following order:

(a) the Associate Chief Justice of the Queen's Bench;

(b) the Associate Chief Justice of the Queen's Bench (Family Division);

(c) judge of the Queen's Bench designated by the Chief Justice;

(d) the senior judge of the Queen's Bench.

Additional judges, family division

26          The Chief Justice may designate a judge, other than a judge holding office under subclause 5(l)(d)(ii), to act as a judge of the family division for such period as the business of the family division may require.

Duties of family division judges

27(1)       Subject to subsection (2), a judge of the family division shall sit full time in the family division.

Assignment to other duties

27(2)       The Chief Justice may, from time to time, assign a judge of the family division to judicial responsibilities outside the family division.

Sittings outside judicial centres

28(1)       Sittings of the court may be held at places other than a court house and other than a judicial centre upon designation by the Chief Justice.

Judge may change place of hearing

28(2)       A presiding judge may, where the circumstances warrant, direct that all or part of a hearing be held at a place in the province other than a place designated under subsection (1).

Judge not available at hearing

28(3)       Where, for any reason, a judge is not available at the appointed time for a hearing, the hearing may be adjourned by a registrar.

One judge to preside at a hearing

29          A judge alone shall preside at a hearing unless otherwise provided by statute.

Persona designata abolished

30          Where an adjudicative jurisdiction is assigned by statute to a judge or officer of the court, the jurisdiction is given to the court.

Post-retirement or resignation

31(1)       A judge may, within 90 days of the date of retirement, resignation or appointment to another court, render judgment in a hearing at which the judge presided.

Motion for rehearing

31(2)       Where a judge commences a hearing and

(a) dies or for any other reason fails to complete the hearing or, after completion, to render judgment; or

(b) does not render judgment in accordance with subsection (1);

a party may make a motion to the Chief Justice for an order that the matter be reheard.

Costs of hearing and rehearing order

31(3)       Where an order is made under subsection (2), the Chief Justice may

(a) dispose of the costs of the hearing or refer the question of costs to the judge presiding at the rehearing;

(b) direct that a rehearing be conducted on the transcript of evidence taken at the hearing, subject to the discretion of the presiding judge at the rehearing to recall a witness or require further evidence.

PART VIII

JURISDICTION AND LAW

Jurisdiction of court

32          The court is and continues to be a court of record of original jurisdiction and possesses and may exercise all such powers and authorities as by the laws of England are incident to a superior court of record of civil and criminal jurisdiction in all civil and criminal matters and possesses and may exercise all the rights, incidents and privileges of those courts as fully to all intents and purposes as they were on July 15, 1870 possessed and exercised by any of the superior courts of common law at Westminster, the Court of Chancery at Lincoln's Inn, the Court of Probate or by any other court in England having cognizance of property and civil rights and of crimes and offences.

Application of laws of England

33(1)       The court shall decide all matters relative to property and civil rights according to the laws of England as they existed on July 15, 1870, insofar as they can be made applicable to matters relating to property and civil rights in the Province, except as they may have been changed or altered by

(a) an Act of the Legislature or of the Parliament of Canada;

(b) an Act of the Parliament of the United Kingdom affecting the province and enacted before the coming into force of the Statute of Westminister, 1931; or

(c) a rule or order of the court.

Evidence, practice and procedure

33(2)       The taking of evidence and the practice and procedure in the court shall be regulated and governed by the rules of evidence and the modes of practice and procedure as they existed in England on July 15th, 1870, except as they may have been changed or altered by

(a) an Act of the Legislature or of the Parliament of Canada;

(b) an Act of the Parliament of the United Kingdom affecting the province and enacted before the coming into force of the Statute of Westminster, 1931; or

(c) a rule or order of the court.

Rules of law and equity

33(3)       The court shall administer concurrently all rules of equity and the common law.

Rules of equity to prevail

33(4)       Where a rule of equity conflicts with a rule of the common law, the rule of equity prevails.

Declaratory orders

34          The court may make a binding declaration of right whether or not consequential relief is or could be claimed.

Relief against penalties

35          The court may grant relief against penalities and forfeitures on such terms as to compensation or otherwise as are considered just.

Damages

36          The court may award damages in addition to, or in substitution for, an injunction or specific performance.

Vesting orders

37(1)       The court may by order vest in a person an interest in real or personal property that the court has authority to order to be disposed of, encumbered or conveyed.

Execution by order of the court

37(2)       The court may, on such terms and conditions as may be just, order or nominate a person to execute a document or endorse a negotiable instrument and the execution or endorsement by the person has the same force and effect as if executed or endorsed by a person originally entitled to do so.

Stay of proceedings

38          The court, on its own initiative or on motion by a person, whether or not a party, may stay a proceeding on such terms as are considered just.

Relief against acceleration

39(1)       Where

(a) a failure to pay money due and payable on a date prescribed in a mortgage or an agreement relating to the sale of land causes an additional amount that is payable at a later date to become immediately due and payable;

(b) a proceeding claiming the full amount payable under the mortgage or agreement under clause (a) is initiated;

(c) the defendant pays into court

(i) the amount originally due and payable under the mortgage or agreement under clause (a),

(ii) the costs of the proceeding under clause(b), and

(iii) an amount which the court deems sufficient to cover damages resulting from the failure to make payment on the prescribed date and to perform other acts required under the mortgage or agreement under clause (a); and

(d) the defendant performs all other acts required under the mortgage or agreement under clause (a);

the court may, on motion,

(e) before judgment, dismiss the proceeding under clause (b); or

(f) after judgment but before sale or recovery of possession of land or final foreclosure of the equity of redemption or final determination of the mortgage or the agreement, stay the proceeding under clause (b).

Subsection (1) overrides agreement

39(2)       A motion under subsection (1) may be made notwithstanding a provision to the contrary contained in a mortgage or an agreement relating to the sale of land.

Fresh default

39(3)       Where a proceeding is stayed under subsection (1) and a fresh default occurs under the mortgage or the agreement relating to the sale of land, the court shall, on motion, remove the stay.

Laws of Assiniboia

40          Nothing herein affects civil rights lawfully acquired or existing under the laws of Assiniboia on July 15, 1870.

PART IX

JURISDICTION OF FAMILY DIVISION

Definitions

41          In this Part,

"family proceeding" means a civil proceeding for the determination or

variation of

(a) the family status of the parties;

(b) the custody, access or guardianship of infants;

(c) the obligation to provide support or the entitlement to division of property, as between spouses, former spouses or persons who are living or have lived together as husband and wife in the relationship commonly referred to as a common law marriage; or

(d) the obligation to provide support as between a parent and a child of the parent,

or a similar proceeding, whether based on statute law, common law or the inherent jurisdiction of the court, other than a proceeding by way of summary conviction, and includes a proceeding under or in respect of

(e)The Child and Family Services Act;

(f) subsections 3(2) and 5(3) of The Change of Name Act;

(g) sections 6, 11, 12 and 13 of The Dower Act;

(h)The Family Maintenance Act;

(i)The Infants' Estates Act;

(j)The Law of Property Act for a partition or sale of land as between spouses, former spouses or persons who are living or have lived together as husband and wife in the relationship commonly referred to as a common law marriage;

(k) section 7 of The Married Women's Property Act;

(l)The Marital Property Act;

(m) a separation or marital property agreement;

(n)The Marriage Act for consent to an intended marriage of a minor;

(o)The Reciprocal Enforcement of Maintenance Orders Act;

(p)The Parents' Maintenance Act;

(q)The Child Custody Enforcement Act;

(r)The Divorce Act, 1985 (Canada);

(s)The Divorce and Matrimonial Causes Act, 1857;

(t) subsection 155(4) of The Insurance Act, where application is made by or on behalf of the spouse, former spouse or child of the insured; («instance en matière familiale»)

"family evaluator" means a person appointed as a family evaluator by the Attorney General; («enquêteur familial»)

"mediator" means a person appointed as a mediator by the Attorney-General, («médiateur»)

Territorial jurisdiction

42          The Lieutenant Governor in Council may make regulations designating

(a) an area of the province within which the family division has exclusive jurisdiction in family proceedings; and

(b) an area of the province within which the family division has concurrent jurisdiction in family proceedings with the Provincial Court of Manitoba (Family Division).

Exclusive jurisdiction

43(1)       Notwithstanding a provision of an Act of the Legislature to the contrary, a family proceeding within an area designated under clause 42(a) shall be brought in the family division.

Concurrent jurisdiction

43(2)       Notwithstanding a provision of an Act of the Legislature to the contrary, a family proceeding within the area designated under clause 42(b) may be brought in the family division.

No duplication of proceedings

44          Nothing in this Part prevents a judge from directing that a family proceeding be consolidated or heard together with a proceeding that is not a family proceeding and a judge of the court or of the family division before whom the two proceedings are brought for hearing has full power to hear and determine the proceedings and to determine all matters in dispute.

Transitional

45          A family proceeding that, prior to a designation under clause 42(a) or 42(b), is properly commenced may continue as if the designation is not made.

Clause 42(a) area to family division

46(1)       A family proceeding that is commenced within an area designated under clause 42(a) and that is brought in the Provincial Court of Manitoba (Family Division) shall, on the request of a party, be transferred to the family division and an order made in the proceeding, before the proceeding is transferred, may be enforced, varied, discharged or otherwise dealt with by the family division.

Clause 42(b) area to family division

46(2)       A family proceeding that is commenced within an area designated under clause 42(b) and that is brought in the Provincial Court of Manitoba (Family Division), including one that is commenced prior to the designation, may, on application to the family division, be transferred to the family division and an order made in the proceeding, before the proceeding is transferred, may be enforced, varied, discharged or otherwise dealt with by the family division.

Clause 42(b) area to provincial court

46(3)       A family proceeding that is commenced within an area designated under clause 42(b) and that is brought in the family division and within the jurisdiction of the Provincial Court of Manitoba (Family Division) may, on motion to the family division, be transferred to the Provincial Court of Manitoba (Family Division) and an order made in the proceeding, before the proceeding is transferred, may be enforced, varied, discharged or otherwise dealt with by the Provincial Court of Manitoba (Family Division).

Referral to mediator

47(1)       Where a judge or master is of the opinion that an effort should be made to resolve an issue otherwise than at a formal trial, the judge or master may, at any stage of the proceeding, refer the issue to a mediator.

Action by mediator

47(2)       A mediator to whom an issue is referred under subsection (1) shall attempt to resolve the issue.

Confidentiality

48          Unless the parties otherwise agree,

(a) a mediator who renders services

(i) under section 47, or

(ii) at the request of the parties; or

(b) a party to a mediation;

is not competent to give evidence in respect of

(c) a written or oral statement made by a party during the mediation, or

(d) knowledge or information acquired during the mediation by a person under clauses (a) or (b).

Family evaluator

49(1)       Where a judge or master is of the opinion that a report of a family evaluator is required at a hearing with respect to custody, access or a related family matter, the judge or master may by order appoint a family evaluator.

Duty of family evaluator

49(2)       A family evaluator appointed under subsection (1) shall interview the parties and such other persons as may be appropriate and shall provide to the court a report containing information and opinion relevant to custody, access or a related family matter that is in issue in the proceeding.

Family evaluator may be witness

50          Where a report is submitted to the court by a family evaluator appointed under section 49, the family evaluator may be called as a witness and may be cross-examined by all parties.

No limitation on recovery of support

51          Subject to section 54, there is no limitation as to time for the recovery of a support payment that is in default under an order.

Death of judgment debtor

52          Where a judgment debtor under an order requiring support payments dies and at the time of death the payments are in default, the amount in default is, subject to section 54, a debt of the estate of the judgment debtor and is recoverable as a debt of the estate.

Death of support recipient

53          Where under an order support payments are payable to a person and the person dies, the personal representative of the deceased may, subject to section 54, recover the support payments that are in default at the time of the death.

Cancellation of support payments

54          Where support payments payable under an order are in default, a judge may, on application, relieve the judgment debtor, or the estate of the judgment debtor, of the obligation to pay the whole or part of the amount in default if the judge is satisfied that

(a) having regard to the interests of the judgment debtor or the estate of the judgment debtor, as the case may be, it would be grossly unfair and inequitable not to do so; and

(b) having regard to the interests of the judgment creditor or the estate of the judgment creditor, as the case may be, it is fair and equitable to do so.

PART X

INTERLOCUTORY PROCEEDING

Injunctions and receivers

55(1)       The court may grant a restrictive or mandatory interlocutory injunction or may appoint a receiver or receiver and manager by an interlocutory order where it appears to the judge to be just or convenient to do so.

Terms on injunction or appointment

55(2)       An order under subsection (1) may include such terms as are considered just.

No injunction re personal services

56(1)       The court shall not grant an injunction which requires a person to work or perform personal services for an employer.

No contempt re personal services

56(2)       No person shall be held in contempt of court by reason only of a refusal, neglect or failure of the person to work or perform personal services for an employer.

No injunction re freedom of speech

57(1)       Subject to subsection (3), the court shall not grant an injunction that restrains a person from exercising the right to freedom of speech.

"Exercise right to freedom of speech"

57(2)       For the purposes of this section, the communication by a person on a public thoroughfare of information by true statements, either orally or through printed material or through any other means, is an exercise of the right to freedom of speech.

Exceptions

57(3)       Nothing in this section affects

(a) enforcement by criminal or quasi criminal proceedings of an Act of Parliament or of the Legislature or of a by-law of a municipality respecting

(i) the use of public thoroughfares;

(ii) the protection of public property;

(iii) the general conduct of persons in public places; or

(iv) restrictions on or prohibitions against the making of certain statements or statements of certain types; or

(b) enforcement by a civil proceeding

(i) of an Act of Parliament or of the Legislature respecting restrictions on or prohibitions against certain statements or statements of certain types; or (ii) of the law respecting defamation.

"Public thoroughfare"

57(4)       In this section, "public thoroughfare" includes a walk, driveway, roadway, square and parking area provided outdoors at the site of and in conjunction with a business or undertaking and to which the public is usually admitted without fee or charge and whether or not the walk, driveway, roadway, square or parking area is owned by the person carrying on the business or undertaking or is publicly owned.

Pending litigation order

58(1)       The commencement of a proceeding that involves an interest in land is not notice of the proceeding to a person who is not a party until a pending litigation order made by the court is registered in the land titles office of the land titles district in which the land is situated.

Registration in Land Titles Office

58(2)       A pending litigation order under subsection (1) may be registered in a land titles office under subsection 75(7) of The Real Property Act and upon registration constitutes a lien and charge on the land against which it is registered.

Exception

58(3)       Subsections (1) and (2) do not apply to a proceeding for foreclosure or sale on a registered mortgage.

Liability where no reasonable claim

58(4)       A party who registers a pending litigation order under subsection (2) without a reasonable claim to an interest in land is liable for damages sustained by a person as a result of the registration.

Recovery of damages

58(5)       Liability for damages under subsection (4) and the amount of the damages may be determined in the proceeding in respect of which the order is made.

Pending litigation order discharge

58(6)       When the registration of a pending litigation order in a land titles office is discharged, any person may deal with the land as fully as if the pending litigation order had not been made.

Recovery of personal property

59(1)       Where, in an action in which the recovery of possession of personal property is claimed, it is alleged that the property,

(a) was unlawfully taken from the plaintiff; or

(b) is unlawfully detained by the defendant,

the court may, on motion, make an interim order for recovery of possession of the property.

Damages if order set aside

59(2)       A person who obtains possession of personal property by obtaining or setting aside an interim order under subsection (1) is liable for damages, if any, that, as a result of setting aside the interim order, are suffered by the person who is found entitled to possession of the property.

Recovery of damages

59(3)       Liability for damages under subsection (2) and the amount of the damages may be determined in the proceeding in which the interim order under subsection (1) is made.

Forcible entry of dwelling by sheriff

59(4)       Where property is recoverable under an interim order made under subsection (1) and there are reasonable grounds to believe that the property is secured or concealed in a dwelling house, building or other enclosure of the defendant or of a person holding the property for the defendant, the sheriff may, at the door of the dwelling house, building, or enclosure, publicly demand delivery of the property and if the property is not delivered as demanded, the sheriff may enter the dwelling house, building or enclosure and, if necessary, may break open the dwelling house, building or enclosure for the purpose of recovering the property.

Search of person and premises by sheriff

59(5)       Where property is recoverable under an interim order made under subsection (1) and there are reasonable grounds to believe that the property is concealed on the person or premises of the defendant or other person holding the property for the defendant, the sheriff may demand delivery of the property from the defendant or other person and if delivery is neglected or refused, the sheriff may search and examine the person or premises of the defendant or other person for the purpose of recovering the property.

Property not recoverable

59(6)       Property in the possession of a sheriff or other officer of the court is not recoverable under this section.

Attachment before judgment

60(1)       Where, in an action in which the payment of money is claimed, it is alleged that the defendant,

(a) resides outside Manitoba, or is a corporation that is not registered under The Corporations Act;

(b) hides or absconds within Manitoba with the intent to avoid service of a document;

(c) is about to leave or has left Manitoba with the intent to

(i) change residence,

(ii) defraud a creditor, or

(iii) avoid service of a document;

(d) is about to permanently remove or has permanently removed property out of Manitoba; or

(e) has concealed, removed, assigned, transferred, conveyed, converted or otherwise disposed of property with an intent to delay, defeat or defraud a creditor or is about to do so;

the court may, on motion, make an order for the attachment before judgment of real or personal property in which the defendant has an interest.

Attachment of personal property

60(2)       Subsection 5(1) and sections 10 and 11 of The Executions Act apply, with such modifications as the circumstances require, to an order under subsection (1) attaching personal property.

Attachment of land

60(3)       An order under subsection (1) attaching real property may be registered in a land titles office under subsection 75(7) of The Real Property Act and upon registration constitutes a lien and charge on the real property against which it is registered.

Discharge of attaching order

60(4)       Where the registration of an attaching order in a land titles office is discharged, a person may deal with the land as if the attaching order had never been registered.

Garnishment before judgment

61          In an action in which the plaintiff claims the payment of a debt or liquidated demand, the court may, on motion and in accordance with The Garnishment Act, order garnishment before judgment of a debt due and payable by a third party to a defendant.

Liability if no judgment obtained

62(1)        A party who

(a) obtains an attaching order under subsection 60(1);

(b) registers an attaching order in a land titles office under subsection 60(3); or

(c) obtains an order under section 61;

and who fails to obtain judgment against the defendant named in the order or obtains judgment for an amount less than the amount claimed, may be held liable for the damages, if any, that result from enforcement of the order.

Recovery of damages

62(2)       Liability for damages under subsection (1) and the amount of the damages may be determined in the proceeding in respect of which the order is made.

"Health care practitioner"

63(1)       In this section, "health care practitioner" means a person licensed or registered to practise in the health sciences field whether in Manitoba or elsewhere.

Physical or mental examination

63(2)       Where the physical or mental condition of a party is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health care practitioners.

No examination without grounds

63(3)       An order shall not be made under subsection (2) unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe there is substance to the allegation.

Further examinations

63(4)       The court may, on motion, order a physical or mental examination under this section in addition to the initial examination ordered under subsection (2).

Examiner may ask questions

63(5)       Where an order is made under this section, the party to be examined shall answer the questions of the examining health care practitioner relevant to the examination and the answers given are admissible in evidence.

Examination of a child

63(6)       In a family proceeding as defined in section 41, a judge may, without motion, order a child to undergo a physical or mental examination by one or more health care practitioners.

PART XI

PROCEDURAL MATTERS

Actions tried with a jury

64(1)       An action for defamation, malicious arrest, malicious prosecution or false imprisonment shall be tried with a jury, unless the parties waive trial with a jury.

Actions tried without jury

64(2)       Subject to subsection (1), an action shall be tried and damages shall be determined by a judge without a jury, unless otherwise ordered by a judge.

Verdicts or questions

64(3)       Where a proceeding is tried with a jury,

(a) the judge may require the jury to give a general verdict or to answer specific questions, subject to The Defamation Act; and

(b) judgment may be entered in accordance with the general verdict or the answers to the questions.

Malicious prosecution

64(4)       In an action for malicious prosecution, the judge shall determine whether or not there has been a reasonable and probable cause for instituting the prosecution.

Set-off by defendant

65(1)       In an action for the payment of a debt, the defendant may, by way of defence, claim the right to set-off against the claim of the plaintiff a debt owed by the plaintiff to the defendant.

Set-off of mutual debts

65(2)       Mutual debts may be set-off against each other, notwithstanding that the debts are of a different nature or that a debt on one side is owed to or by a party directly as an individual and a debt on the other side is owed to or by a corporation, partnership, association or other entity in which a party has an interest.

Judgment for defendant

65(3)       Where a set off is claimed in an action by a defendant and a larger sum is found due from the plaintiff to the defendant than is found due from the defendant to the plaintiff, the defendant is entitled to judgment for the balance.

Agreement re third party claim

66          Rules of court permitting a defendant to make a third party claim or cross claim apply notwithstanding an agreement between the defendant and the third party that no action may be brought until after judgment is obtained against the defendant.

Security

67          Where a person is required to give security in respect of a proceeding, a contract of guarantee insurance for the appropriate amount within the meaning of The Insurance Act is sufficient, unless the court orders otherwise.

Personal representative accounting

68(1)        Where an action for an accounting lies against a person and the person dies, the action may be brought against the personal representative of the person.

Co-tenant accounting

68(2)       An action for an accounting may be brought by a joint tenant or tenant-in-common, or by the personal representative of a joint tenant or tenant-in-common, against a co-tenant or personal representative of a co-tenant.

Proceedings in wrong forum

69(1)       There is no loss of jurisdiction where a proceeding or a step in a proceeding is commenced or taken in a judicial centre or a division of the court or before a judge or officer of the court other than as provided under this Act or the rules.

Transfer of errant proceeding

69(2)       A proceeding referred to in subsection (1) may be adjourned and, if necessary, transferred to another judicial centre or division of the court and, upon transfer, shall be titled in the centre or division to which it is transferred.

Commission evidence

70          Upon application, without notice, by

(a) a board, commission or tribunal that under an Act of the Legislature has authority to take evidence; or

(b) a commissioner appointed under Part V of The Manitoba Evidence Act,

the court may order the examination of, and the production of documents by, a person who resides outside Manitoba in the same manner and extent as if the applicant was a party to a proceeding in the court.

Service of process on Sunday

71          Service of process is not invalid by reason only that it is served on a Sunday or other holiday.

Bond and recognizance enforcement

72(1)       By leave of a judge on a motion by the Attorney General or other person entitled to enforcement, a bond or recognizance arising out of a civil proceeding may be enforced in the same manner as an order for the payment of money.

Enforcement of fines for contempt

72(2)       A fine for contempt of court may be enforced by the Attorney General in the same manner as an order for the payment of money or in any other manner permitted by law.

PART XII

VEXATIOUS PROCEEDINGS

Application for order

73(1)        Where a judge is satisfied, on application, that a person, persistently and without reasonable grounds, is

(a) instituting vexatious proceedings in the court; or

(b) conducting a proceeding in a vexatious manner,

the judge may order that

(c) the person shall not institute a further proceeding; or

(d) a proceeding instituted by the person not be continued,

except with leave of a judge.

Consent of the Attorney-General

73(2)       Application under subsection (1) shall be made with the consent of the Attorney General and the Attorney General is entitled to be heard on the application.

Application for leave to proceed

74(1)       Where a person governed by an order under subsection 73(1) seeks to institute or continue a proceeding, the person may apply for

(a) leave to institute or continue the proceeding, or

(b) rescission of the order,

and for no other relief, including costs.

Leave to proceed or rescission

74(2)       For purposes of an application under subsection (1), where a judge is satisfied that a proceeding to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding, the court may, by order,

(a) grant leave to proceed, or

(b) rescind the order made under subsection 73(1).

Attorney-General to be heard

74(3)       A person making application under subsection (1) shall give notice of the application to the Attorney-General and the Attorney-General is entitled to be heard on the application.

No appeal

74(4)       No appeal lies from a refusal to make an order under subsection (2).

Abuse of process

75          Nothing in this Part limits the authority of the court to stay or dismiss a proceeding as an abuse of process or on any other ground.

PART XIII

PUBLIC ACCESS

Hearings open to public

76(1)       Subject to subsection (2) or unless otherwise provided by statute or the rules, a hearing held by the court or a judge is open to the public.

Exception

76(2)       The court may by order exclude the public from a hearing where the possibility of serious harm or injustice to a person justifies a departure from the general principle that hearings of the court are open to the public.

Disclosure of what transpires

76(3)       Where the public is excluded from a hearing, disclosure of information relating to the hearing, including disclosure of what transpires in the hearing, is not contempt of court unless the court expressly prohibits such disclosure.

Sealing confidential documents

77(1)       The court may order that a document filed in a civil proceeding is confidential, is to be sealed and is not a part of the public record of the proceeding.

Documents public

77(2)       Upon payment of the prescribed fee, if any, a person may see

(a) a list of the proceedings in the court, or

(b) a document that is filed in a proceeding, unless otherwise provided by statute or by an order.

Copies

77(3)       Upon payment of the prescribed fee, if any, a person shall receive a copy of a document under clause (2)(b).

PART XIV

INTEREST AND DISCOUNT RATES

Definitions

78          In this Part,

"bank rate" means the minimum rate at which the Bank of Canada makes short-term advances to the chartered banks; («taux d'escompte»)

"future damages" means damages to compensate for pecuniary losses to be incurred or expenditures to be made after an order is made in a proceeding; («dommages-intérêts futurs»)

"order" means an order of the court for the payment of money or an order that money is owing, but does not include an order imposing a fine or penalty

(a) for an offence under an enactment of Canada or of Manitoba, or

(b) for contempt of a court or of an order of a court; («ordonnance»)

"postjudgment rate" means the interest rate prescribed under the Interest Act (Canada); («taux postérieur au jugement»)

"prejudgment rate" in respect of an order means the quarterly interest rate for the quarter in which the relevant proceeding is commenced; («taux antérieur au jugement»)

"principal sum" means the money amount of an order exclusive of interest awarded under this Act and a discount made in accordance with this Act and does not include

(a) special damages,

(b) non-pecuniary damages,

(c) future damages,

(d) exemplary or punitive damages,

(e) costs awarded in the proceeding, or

(f) a reduction in liability under section 38 of The Manitoba Public Insurance Corporation Act; («capital»)

"quarter" means the three month period beginning January 1st, April 1st, July 1st or October 1st in a year; («trimestre»)

"quarterly interest rate" in respect of a quarter means, subject to subsection 79(2), the bank rate at the end of the first day of the quarter, rounded off to the nearest .5%; («taux d'intérêt trimestriel»)

"special damages" means expenses incurred or income lost before an order awarding the special damages is made. («dommages-intérêts spéciaux»)

Publication of quarterly rate

79(1)       After the first day of a quarter, the registrar shall forthwith

(a) determine the quarterly interest rate for the quarter; and

(b) send to the Queen's Printer for publication in the gazette, a table showing the quarterly interest rates for the quarter and for the previous quarters up to a maximum of 39 quarters.

Initial quarterly interest rate

79(2)       The quarterly interest rate for the quarter beginning July 1, 1986 and for all previous quarters is nine percent per annum.

Prejudgment interest

80(1)       Subject to sections 81 and 82, an order shall include an award of interest at the prejudgment rate on the principal sum calculated,

(a) where the order is made on a liquidated claim, from the date the cause of action arose to the date the order is made; and

(b) where the order is made on an unliquidated claim, from the date the successful party gives written notice of the claim to the party liable for payment to the date the order is made.

Prejudgment interest, specials

80(2)       Where an order includes special damages, interest at the prejudgment rate shall be awarded on

(a) the amount of special damages incurred in each six month period following the date of notice under clause (1Kb); less

(b) an amount by which the liability of the unsuccessful party is reduced pursuant to section 38 of The Manitoba Public Insurance Corporation Act in respect of the six month period described in clause (a),

calculated from the first day of each six month period to the date the order is made.

Non-pecuniary damages

80(3)       The court shall not make an award of interest on non-pecuniary damages but in determining the amount of the non-pecuniary damages, a judge shall make allowance for the loss of opportunity for the successful party to invest the amount of the damages.

Relevant circumstances

80(4)       For purposes of subsection (3), a judge shall have regard to such considerations as the judge considers relevant, including the prejudgment rate from the date of the notice under clause (1Kb) to the date of the order awarding the damages.

Discretion of the court

81(1)       Where a judge considers it just to do so, the judge may

(a) disallow interest under section 80;

(b) allow interest at a rate higher or lower than the prejudgment rate; or

(c) allow interest for a period other than the period described in section 80;

in respect of the amount, or any part thereof, on which interest is payable under this Part.

Factors under subsection (1)

81(2)       For the purposes of subsection (1), a judge shall have regard to

(a) changes in the quarterly interest rate;

(b) the circumstances of the case; and

(c) the conduct of the proceedings.

No interest to be awarded

82          Sections 79, 80 and 81 do not apply where

(a) an order is made on consent, unless application of this Part is agreed to by the parties,

(b) there is an agreement between the parties respecting prejudgment interest or compensation in the place of interest; or

(c) payment of prejudgment interest or compensation in the place of interest is otherwise provided for by law.

Discount for future damages

83(1)       Where an order includes an award for future damages, the future damages shall be given a discounted value in accordance with the difference between the probable long-term rate of return on prudent investments and the probable long-term rate of general monetary inflation.

3% discount

83(2)       For purposes of subsection (1), the discount rate applied to future damages shall be 3%, until such time as the discount rate is altered by regulation.

Postjudgment interest

84(1)       Unless otherwise ordered by the court, money owing under an order, including costs to be assessed or costs fixed by the court, bears interest at the postjudgment rate, calculated from the date of pronouncement of the order, notwithstanding a stay or an appeal of the order.

Interest on periodic payments

84(2)       Where an order provides for periodic payments, a payment in default bears interest at the postjudgment rate from the date of default.

Orders originating outside Manitoba

84(3)       Where an order of the court is based on an order made outside Manitoba or where an order of a court outside Manitoba is filed with a court in Manitoba for the purpose of enforcement, money owing under the order bears interest at a postjudgment rate, if any, applicable to the order made outside Manitoba by the law of the place where it was made.

Costs assessed without order

84(4)       Where costs are assessed without an order, the costs bear interest at the postjudgment rate from the date the person to whom the costs are payable becomes entitled to costs.

Postjudgment interest not available

84(5)       This section does not apply to an order where

(a) the parties agree that a special rate or no rate of postjudgment interest applies, or

(b) it is provided in an Act of the Legislature or by other lawful authority that a special rate or no rate of postjudgment interest applies to the proceeding in which the order is made.

Postjudgment interest agreement

84(6)       Where parties agree that a special rate of postjudgment interest or no rate of postjudgment interest applies or that no postjudgment interest is payable, the order shall be made in accordance with the agreement.

Pleadings

85          For the application of this Part, it is not necessary to include in the pleadings of a proceeding a claim for interest under this Part.

Queen's Bench Small Claims Act

86          A claim for interest under this Part is not part of an amount of money claimed in a proceeding for the purpose of determining jurisdiction under The Court of Queen's Bench Small Claims Practices Act.

Enforcement of order

87          For purposes of enforcing an order, the amount of the order includes

(a) the prejudgment interest, if any; and

(b) the postjudgment interest, if any, to the date of satisfaction of the order;

but does not include

(c) an amount discounted off under section 83.

Transitional

88(1)       Subject to subsection (2), sections 81, 82 and 83 apply to an order made on or after September 10, 1986.

No interest prior to Sept. 10, 1986

88(2)       Interest shall not be awarded under sections 81, 82 or 83 for a period prior to September 10, 1986.

PART XV

APPEALS

Appeal to Court of Appeal

89          Unless otherwise provided by statute,

(a) an order made by the court may be set aside in whole or in part or varied; and

(b) a verdict of a jury may be set aside in whole or in part;

on appeal to the Court of Appeal.

Consent order, costs not appealable

90( 1)      An order that is made

(a) with the consent of the parties, or

(b) as to costs only,

is not subject to an appeal except by leave of the judge making the order.

Costs against lawyer appealable

90(2)       Subsection (1) does not apply to an order for costs made against a lawyer acting in the proceeding.

PART XVI

RULES OF COURT

Rules committee

91(1)       There shall be a rules committee composed of

(a) the Chief Justice or a judge designated by the Chief Justice;

(b) five judges who shall be appointed by the Chief Justice;

(c) two persons appointed by the Attorney-General; and

(d) three lawyers appointed by The Law Society of Manitoba.

Presiding member

91(2)       The Chief Justice or a member of the rules committee designated by the Chief Justice shall preside over the rules committee.

Quorum

91(3)       A majority of the members of the rules committee constitutes a quorum.

Rule-making powers

92          Subject to subsection 93(1), the rules committee may, upon consultation with the Attorney-General, make rules, whether or not the rules alter substantive law, with respect to the practice and procedure of the court and, without limiting the generality of the foregoing, in relation to

(a) the commencement and conduct of proceedings in the court;

(b) the joinder of claims and parties;

(c) the settlement of claims by or against persons under disability, whether or not a proceeding has been commenced in respect of the claim;

(d) the binding effect of orders;

(e) the representation of parties;

(f) the service of process in or outside Manitoba, including dispensing with such service;

(g) proceedings by or against partnerships, sole proprietorships, associations and other unincorporated entities;

(h) the disposition of proceedings without a hearing and the effect thereof;

(i) pleadings;

(j) discovery and other forms of disclosure before hearing, including the scope thereof and the admissibility and use of such discovery and disclosure in a proceeding;

(k) the examination of witnesses in or out of court, including the recording of testimony prior to commencement of proceedings;

(l) the jurisdiction of masters, including the conferral on masters of a matter within the jurisdiction of the court but not including the trial of actions or jurisdiction conferred by an Act on a judge;

(m) the jurisdiction and duties of officers of the court;

(n) motions and applications, including the hearing of motions in camera and the prohibition of motions without leave;

(o) the preservation of rights of parties pending the outcome of an action, including the seizure, sale, recovery of possession, attachment or preservation of property, garnishment, the registration of orders in a land titles office and the discharge of such registration;

(p) interpleader;

(q) preparation for the trial of an action;

(r) offers to settle;

(s) the mode and conduct of trials;

(t) the appointment by the court of independent experts, their remuneration and the admissibility and use of their reports;

(u) references of proceedings or issues in a proceeding and the powers of a person conducting a reference;

(v) the costs of proceedings, including security for costs and a lawyer's liability for costs;

(w) the enforcement of orders and of process or obligations under the rules, including the examination of persons in aid of such enforcement;

(x) the establishment of a tariff of costs for services by a lawyer in a proceeding and of the fees payable to a witness;

(y) the delivery and assessment of a lawyer's bill of fees, charges and disbursements to a client;

(z) the time for and procedure on appeals and stays pending appeal;

(aa) payment into and out of court; and

(bb) a matter that in an Act is provided for by rules of court.

No rules to conflict with an Act

93(1)       Nothing in section 92 authorizes the making of rules which conflict with an Act of the Legislature, but rules may supplement the provisions of an Act.

Rules are regulations

93(2)       The rules are regulations within the meaning of The Regulations Act.

PART XVII

MISCELLANEOUS

Multiplicity of proceedings

94          As far as possible, a multiplicity of proceedings shall be avoided.

Joint liability not affected

95          Where two or more persons are jointly liable in respect of the same cause of action, a judgment against or release of one does not preclude judgment against the other in the same or a separate proceeding.

Costs

96(1)       Subject to the provisions of an Act or the rules, the costs of or incidental to, a proceeding, or a step in a proceeding, are in the discretion of the court and the court shall determine liability for costs and the amount of the costs or the manner in which the costs shall be assessed.

Costs where counsel an employee

96(2)       Costs shall not be disallowed or reduced by reason of the fact that the party claiming the costs is represented by a lawyer who is an employee of the party.

Acting under court order

97          A proceeding shall not be brought against a person with respect to an act done in good faith under an order or process of the court.

Extension of time for translation

98          Notwithstanding a time limitation contained in this Act or another Act, a judge may, for the purpose of allowing sufficient time for the translation of a document filed in court or served on a party in a proceeding, extend the time within which the document shall be filed or a further step taken in the proceeding.

Crown bound

99          The Crown in right of the province is bound by this Act.

PART XVIII

TRANSITIONAL PROVISIONS

Application to all proceedings

100(1)      Subject to subsection (2), this Act applies to all proceedings, whether commenced before or after this Act comes into force, except as otherwise provided.

Exception

100(2)      Where a proceeding is commenced before this Act comes into force, the court in which the proceeding is commenced, may, on application, order that the proceeding or a step in the proceeding be conducted under the Act that governed the proceeding before this Act came into force.

References to former terminology

101         A reference in an Act, rule regulation, order or other court process to a term or form listed in Column 1 of the Table, shall be deemed to refer to the corresponding term or form listed opposite in Column 2:

TABLE

Column 1 Column 2
administrator ad litem litigation administrator
certificate of lis pendens pending litigation order
conduct money attendance money
ex parte motion motion without notice
guardian ad litem litigation guardian
next friend litigation guardian
originating motion application
garnishment order notice of garnishment
originating notice notice of application
praecipe requisition
referee master
replevin order interim order for recovery of personal property
satisfaction piece notice of satisfaction
special examiner special examiner
style of cause title of proceeding
taxation of costs assessment of costs
taxing officer assessment officer
writ of fieri facias writ of seizure and sale

Statutes repealed

102         The Queen's Bench Act, The Judgment Interest and Discount Act and The Replevin Act are repealed.

Reference in C.C.S.M.

103         This Act may be referred to as chapter C280 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

104         This Act comes into force on a day to be fixed by proclamation.

NOTE:  This Act was proclaimed in force March 1, 1989. See Manitoba Gazette No. 7, February 18, 1989, page 179.