|This is an unofficial archived version of The Court of Appeal Act|
as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. C240
The Court of Appeal Act
|Table of Contents|
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act and the rules made hereunder, "court" means The Court of Appeal.
The court heretofore created, under the name: "The Court of Appeal", shall exist and continue under that name, and shall consist of a chief justice, who shall be styled: "Chief Justice of Manitoba", and six other judges, who shall be styled Judges of Appeal.
There is established for each office of judge of the court including the Chief Justice of the court the additional office of supernumerary judge of the court.
The court shall be a superior court of record.
The seal at present in use shall be and continue to be the seal of the court; but the seal may, from time to time, be renewed, changed, or altered, or a new seal substituted therefor, by order of the Lieutenant Governor in Council.
The Chief Justice of Manitoba has rank and precedence over all other judges of the courts of Manitoba, the Chief Justice of the Queen's Bench has rank and precedence next after the Chief Justice of Manitoba, and the other judges of the Court of Queen's Bench and of The Court of Appeal have rank and precedence among themselves according to their seniority of appointment.
Every judge of the court, previous to entering upon the duties of his office, shall take the following oath, to be administered by the Lieutenant Governor, the chief justice of the court or any judge of the court:
I, , solemnly and sincerely promise and swear that I will duly and faithfully, and to the best of my skill and knowledge, exercise the powers and trusts reposed in me as Chief Justice of (or one of the judges of The Court of Appeal for) Manitoba. So help me God.
In any cause or matter pending in the court, any application or motion incidental thereto, not involving the decision of that cause or matter may be heard and disposed of by a judge of the court sitting in chambers; and a judge of the court may at any time during vacation make any interim order to prevent prejudice to the claims of any party as he thinks fit.
Every order made under this section may be discharged or varied by the court.
No interlocutory order from which there has been no appeal shall operate so as to bar or prejudice the court from giving such decision in the cause or matter as is just.
A registrar of the court and such other officers and clerks as the business of the court from time to time requires, may be appointed as provided in The Civil Service Act.
The registrar shall be the taxing officer of the court.
The registrar has such authority to exercise the jurisdiction of a judge sitting in chambers as is conferred upon him by rules under this Act.
Every officer hereafter appointed shall, before entering upon the duties of his office, take and subscribe the following oath:
I, , solemnly and sincerely promise and swear that I will, according to the best of my skill, learning, ability, and judgment, well and faithfully execute and fulfil the duties of the office of without favour or affection, prejudice or partiality, to any person.
So help me God.
The oath shall be administered by a judge.
The court shall sit in The City of Winnipeg.
Subject to the rules made as herein provided, the court, and the judges thereof respectively, may sit and act at any time for the transaction of any part of the business of the court or of the judges, or for the discharge of any duty that, by statute or otherwise, is required to be discharged.
The court may adjourn any session from time to time.
Any three of the judges of the court constitute a quorum and may lawfully hold the court.
The determination of any question before the court shall be according to the opinion of the majority of the members of the court hearing the cause or matter.
Where, at any time, the number of judges necessary to constitute a quorum is not present, the judge or judges present may adjourn the sitting.
Judgments of the court shall be delivered in open court, or be released in written form, or be given in such other manner or by such other means as the judges of the court may determine.
Where a judgment of the court is delivered in open court, it is not necessary for all the judges who heard the argument to be present in order to constitute the court for delivery of judgment; but, in the absence of any judge from illness or any other cause, judgment may be delivered by a majority of the judges who were present at the hearing.
Where a judgment of the court is delivered in open court, and a judge who heard the argument is absent at the delivery, his opinion in writing may be read or announced by any judge present.
A judge who
(a) resigns his office; or
(b) is appointed to any other court; or
(c) ceases to hold office by reason of subsection 99(2) of the Constitution Act, 1867;
may, within three months after his resignation, appointment, or ceasing to hold office as aforesaid, give judgment in any cause or matter previously heard before him as if he had not so resigned, been appointed, or ceased to hold office.
Where a judge who has heard the argument in a cause or matter dies or becomes incapable of performing his duties before judgment is given, the other judges who heard the argument may give the judgment of the court; but if they number fewer than four, they must be unanimous.
A judge shall not sit on the hearing of an appeal from a judgment or order made by himself.
Any judge of the Court of Queen's Bench may, at the request of the Chief Justice of Manitoba or, in his absence, at the request of the senior judge of the court, sit as a member of the court and take part in the hearing and decision of any appeal or matter coming before the court and otherwise in relation thereto, and for all such purposes he has all the jurisdiction, powers, rights, privileges, and immunities, of a judge of The Court of Appeal.
The Chief Justice of Manitoba and the other judges of appeal shall also be, ex officio, judges of the Court of Queen's Bench, and each of the judges has all the jurisdiction, both civil and criminal, possessed by any judge of the Court of Queen's Bench; and he may, in addition to his duties as a judge of The Court of Appeal, preside over any trials of civil or criminal cases in the Court of Queen's Bench and over any trials at bar, and over the trials of any election petitions, and for all purposes has all the powers, rights, privileges, and immunities, of a judge of the Court of Queen's Bench.
In addition to the jurisdiction and powers that the court has under any other Act, or under any other provision of this Act, the court has all the jurisdiction and powers possessed by the Court of Queen's Bench sitting en banc immediately prior to July 23, 1906.
The Court of Queen's Bench en banc does not have jurisdiction to entertain an application for a new trial, and does not have any appellate jurisdiction.
The court, upon an appeal, may give any judgment which ought to have been pronounced, and may make such further or other order as is deemed just.
The court may draw inferences of fact not inconsistent with any finding of fact that is not set aside; and, if satisfied that there is before it all the material necessary for finally determining the matters in controversy, or any of them, or for awarding any relief sought, may give judgment accordingly; but, if of opinion that there is not sufficient material before it to enable it to give judgment, may direct the appeal to stand over for further consideration, and may direct that such issues or questions of fact be tried and determined, and such accounts be taken, and such inquiries be made, as are deemed necessary to enable it, on such further consideration, to dispose finally of the matters in controversy.
The court may, in its discretion, receive further evidence upon questions of fact by oral examination in court, by affidavit, or by deposition taken before an examiner or a commissioner.
The powers conferred by subsections (1), (2), and (3) may be exercised
(a) notwithstanding that the appeal is as to part only of the judgment, order, decision, or verdict; and
(b) in favour of all or any of the parties, although they have not appealed.
A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or of the omission to take the verdict of the jury upon a question which the judge at the trial was not asked to leave to the jury, or of any omission or irregularity in the course of the trial, unless some substantial wrong or miscarriage has been thereby occasioned.
Where it appears that a substantial wrong or miscarriage was so occasioned, but that it affected part only of the matter in controversy or some or one only of the parties, the court may give final judgment as to any part or any party not so affected and direct a new trial as to the other part only, or only as to the other party or parties.
A new trial may be ordered upon any question without interfering with the finding or decision upon any other question.
For all the purposes of, and incidental to, the hearing and determination of any cause or matter within its jurisdiction, and the amendment, execution, and enforcement, of any judgment or order, and for the purpose of every other authority expressly or impliedly given to it by this Act, the court has the power, authority, and jurisdiction, vested in the court appealed from.
No greater amount than $100., exclusive of disbursements, shall be taxed and allowed for costs of appeal from the final disposition of an action or proceeding in the Court of Queen's Bench to the successful party in any appeal to the court as against any other party thereto, unless and except to the extent that the court, having regard to the nature or importance of the cause or matter, the amount involved, the interest of the parties, the general conduct and costs of proceedings and all other circumstances, otherwise orders.
Where the judgment of the court is reversed on appeal, the term "successful party" means and includes the party ultimately successful in the action or proceeding.
The term "disbursements" does not include counsel fees earned in the province.
A judge of the court in chambers may, under special circumstances, make an order or orders for security for costs of any appeal.
Notwithstanding this or any other Act of the Legislature, for the purpose of allowing time for obtaining a translation from French into English or English into French of any document filed in the court or served on a party in an action or proceeding in the court, a judge of the court may extend the time within which, or postpone the day before or by which, any further document is required to be filed in response or any proceeding is required to be taken under any Act of the Legislature.
The judges of the court or a majority of them, present at any meeting held for that purpose, may, alter, amend, or repeal, any of the rules for the time being in force, and make any further or additional rules for the purpose of carrying into effect this Act and all other Acts respecting the court, or of providing for any matters not fully or sufficiently provided for in this Act or such other Acts, and in particular for the purpose of
(a) regulating the practice and procedure in the court;
(b) prescribing and regulating the proceedings under any statute which confers jurisdiction upon the court or a judge thereof;
(c) fixing the hours of the court;
(d) fixing the vacations;
(e) empowering the registrar to do any such thing, and to transact any such business, as is specified in the rules, and to exercise any authority and jurisdiction in respect thereof as are now or may be hereafter exercised by a judge of the court sitting in chambers;
(f) providing a table or tariff of fees and allowances for services by barristers, solicitors, and counsel, in all causes and matters in the court;
and, generally for the purpose of providing for every other matter deemed expedient for better attaining the ends of justice and advancing the remedies of suitors.
Notwithstanding any other provision herein or in the rules of court, the offices of the court shall be kept open on such days, and during such hours, as the Lieutenant Governor in Council, by order in council, directs.
Subject to this Act, the rules of practice and procedure at present in force are declared to have the same force and effect as if they were embodied in this Act.
All rules, forms, tariffs and schedules, and all amendments or additions thereto made under the powers conferred by this Act, shall, with as little delay as possible, be published in The Manitoba Gazette, and shall thereupon have the same force and effect as if they were embodied in this Act; but the judges may nevertheless at any time and from time to time pass rules altering, repealing, or amending them.
In all matters not expressly provided for in this Act or the rules, the practice and procedure of the Court of Queen's Bench, in so far as applicable, may be adopted and applied.
The practice and procedure in all matters for which provision is not made in this Act and the rules shall be regulated by analogy hereto.
Nothing in this Act affects the practice or procedure in criminal matters or any matter which by law is not within the cognizance of the Legislature.