|This is an unofficial archived version of The Queen's Bench Act|
as enacted by SM 1987-88, c. 9 on 17 juillet 1987.
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R.S.M. 1987, c. C280
The Queen's Bench 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 in the rules,
"action" means a civil proceeding commenced by statement of claim or in such other manner as may be prescribed by the rules, and includes suit, set-off, counter-claim, and interpleader proceeding. ("action")
"cause" includes an action, suit, or other original proceeding between a plaintiff and a defendant; ("cause")
"court" means Her Majesty's Court of Queen's Bench for Manitoba; ("Cour" ou "tribunal")
"defendant" includes every person served with a statement of claim or process, or served with notice of or entitled to attend a proceeding; ("défendeur")
"judge" or "justice" means a judge of Her Majesty's Court of Queen's Bench for Manitoba and includes the Chief Justice of the Queen's Bench and an Associate Chief Justice of the Queen's Bench; ("juge")
"judgment" includes decree and order; ("jugement")
"matter" includes every proceeding in the court not in a cause; ("affaire")
"order" includes rule; ("ordonnance")
"party" includes a person served with notice of or attending any proceeding, although not named on the record; ("partie")
"petitioner" includes a person making an application to the court either by petition, motion, or summons, otherwise than as against a defendant; ("pétitionnaire" ou "requérant")
"plaintiff" includes a person asking any relief against any other person by any form of proceeding; ("demandeur")
"pleading" includes a petition or summons, the statement in writing of the claim or demand of a plaintiff, of the defence of a defendant thereto, and of the defence of the plaintiff to a counterclaim of a defendant; ("plaidoirie écrite")
"proper officer" means an officer to be ascertained as provided in section 2; ("auxiliaire compétent")
"registrar" means the registrar of the court and "deputy registrar" means a deputy registrar of the court; ("registraire")
"rules" means rules of court; ("règles")
"verdict" includes the finding of a jury and the decision of a judge. ("verdict")
Where any duty to be discharged under this Act is a duty that has been discharged by any officer, the proper officer to discharge that duty is such officer as has previously discharged analogous duties or, in the event of doubt, as may be directed to discharge them by the chief justice or, in his absence, by one of the other judges.
Where any new duty is, under this Act, to be discharged, the proper officer to discharge it is such officer, having previously discharged analogous duties, as may from time to time be directed by the chief justice to discharge it.
Her Majesty's Court of Queen's Bench for Manitoba shall exist and continue under the name and style: "Her Majesty's Court of Queen's Bench for Manitoba" or "Cour du banc de la Reine de Sa Majesté pour le Manitoba"; and all commissions, rules, orders and regulations, granted or made in, by or respecting, the court, or the judges or officers thereof, now existing or being in force shall remain and continue in force until altered, changed, rescinded or otherwise determined, according to law, except as provided in this Act.
The court shall
(a) during the reign of a King, be styled "His Majesty's Court of King's Bench for Manitoba" or "Cour du Banc du Roi de Sa Majesté pour le Manitoba"; and
(b) during the reign of a Queen, be styled "Her Majesty's Court of Queen's Bench for Manitoba" or "Cour du Banc de la Reine de sa Majesté pour le Manitoba";
and in all writs, pleadings, petitions, notices, documents and proceedings in the court, the court shall be sufficiently designated and described by the words
(c) "In the King's Bench" or "Cour du Banc du Roi"; or
(d) "In the Queen's Bench" or "Cour du Banc de la Reine";
according as the time shall be in the reign of a King or a Queen.
No action or other proceeding in any court shall be discontinued or stayed by reason of the demise of the Crown, but it shall be proceeded with as if the demise had not happened.
The seals now in use are and shall continue to be the seals of the court but those seals may, from time to time, be renewed, changed or altered, or new seals substituted therefor, by order of the Lieutenant Governor in Council.
The court shall consist of
(a) a Chief Justice, who shall be styled "Chief Justice of the Queen's Bench";
(b) an associate Chief Justice, who shall be styled "Associate Chief Justice of the Queen's Bench" and who shall be the Senior Associate Chief Justice;
(c) an associate Chief Justice who shall be styled "Associate Chief Justice of the Queen's Bench (Family Division)" and who shall serve full time in the family division of the court; and
(d) subject to subsection (2), 27 puisne justices each of whom shall be styled and be a judge of the court and five of whom shall serve full time in the family division of the court.
The Lieutenant Governor in Council may increase the number of puisne justices of the court, but the Lieutenant Governor in Council shall not, by repealing an order increasing the number of puisne justices of the court or in any other manner, decrease the number of puisne justices of the court.
There is an addition to the number of puisne justices of the court fixed under subsection (1) an additional office of a puisne justice of the court that a Chief Justice of the Queen's Bench or an Associate Chief Justice of the Queen's Bench who has resigned his office of Chief Justice of the Queen's Bench or Associate Chief Justice of the Queen's Bench, as the case may be, may elect to hold the office and perform the duties of a justice of the court other than Chief Justice or Associate Chief Justice upon compliance with and upon meeting the qualifications established by the Judges Act (Canada).
There is established for each office of judge of the court the additional office of supernumerary judge of the court.
The Chief Justice of the Queen's Bench, the Associate Chief Justice of the Queen's Bench and the puisne justices of the court shall have, use, exercise and enjoy, 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 amply and as fully to all intents and purposes 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.
Every judge, before entering upon the duties of his office, shall take the following oath to be administered by a Lieutenant Governor, the Chief Justice of the Queen's Bench or an Associate Chief Justice of the Queen's Bench or any puisne justice 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 (or Associate Chief Justice of one of the puisne justices) of Her Majesty's Court of Queen's Bench for Manitoba.
So help me God.
The judges or any one of them may hold, in and for the Northwest Territories, any court or courts that may be created under the authority of the Governor General, or of any Act of the Parliament of Canada, and, in and for those territories, or in respect of matters arising or transpiring therein, may discharge all judicial functions assigned to them, or one or more of them, by the Governor General or the Parliament of Canada.
The Chief Justice of the Queen's Bench shall reside in or in the neighbourhood of The City of Winnipeg.
The Associate Chief Justice of the Queen's Bench and each puisne judge appointed to the court shall reside in or in the neighbourhood of such judicial centre as the Lieutenant Governor in Council, upon the recommendation of the Attorney-General after consultation with the Chief Justice of the Queen's Bench, may direct for that judge but, after such direction is given for a judge, that judge shall not be required to change residence to, or to the neighbourhood of, another judicial centre unless the judge consents to the change.
In exercising the powers under subsection (2), the Lieutenant Governor in Council shall ensure that at least three judges of the court are resident in or in the neighbourhood of judicial centres other than The City of Winnipeg.
Notwithstanding subsection (2), each judge of the court who on the day immediately before the day this section comes into force was a judge of the court or a supernumerary judge of the court, shall continue to reside in or in the neighbourhood of the judicial centre where he resides on the day immediately before this section comes into force until the Lieutenant Governor in Council, upon recommendation of the Attorney-
General after consultation with the Chief Justice of the Queen's Bench, directs the judge to change his residence under subsection (2) but no puisne justice of the court on the day this section comes into force shall be required to change his residence to or to the neighbourhood of another judicial centre unless the judge consents to the change.
The Chief Justice of The Queen's Bench shall, whenever necessary, and at least once in each year, convene a meeting of the judges of the court for the purpose of dealing with matters related to the administration of and practice in the courts or for any purpose relating to the administration of justice or for the purposes of any Act of the Legislature.
OFFICERS AND OFFICES
A registrar of the court and, one or more deputy registrars and one or more assistants to the deputy registrars and a senior master and a senior referee and one or more other masters, and referees of the court, and one or more deputies to any one or more of them (two or more of any of which offices may be held by one person) 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.
For each judicial centre one or more deputy registrars and one or more assistant deputy registrars, as may be required, and such other officers and clerks as the business of the court at the judicial centre from time to time requires, may be appointed as provided in The Civil Service Act.
Every judge of the Provincial Court of Manitoba (Family Division) is ex officio a master and referee of the court and may, as required by the Chief Justice of the Queen's Bench or a judge designated by the Chief Justice of the Queen's Bench, act as a master or referee of the court.
The officers and clerks appointed for the court shall, in addition to any of the duties usually performed by those officers and clerks, perform such other duties as the court or a judge may, from time to time, direct or require and shall, as may be prescribed by the Lieutenant Governor in Council, discharge the duties of, and hold, any office authorized by law.
Every deputy or assistant to an officer of the court appointed as provided in this section has all the powers of the officer whose deputy or assistant he is.
The registrar has and may perform or exercise all the duties, functions, authority and privileges of a prothonotary or clerk of the Crown and Pleas or clerk of the peace or clerk, according to the nature of the proceeding in the court in which the registrar intervenes and in each capacity the registrar possesses and enjoys all the powers, rights and privileges as they were on and prior to July 15th, 1870, appertaining to or exercisable by the registrar, prothonotary, clerk, clerk of the Crown and Pleas and clerk of the peace respectively in any of Her Majesty's courts of law in England; and the registrar shall perform all duties appertaining to the office of registrar or clerk of the court or prothonotary or clerk of the Crown and Pleas or clerk of the peace and where in any Act, regulation, rule of court or law in force in Manitoba there is a reference to the prothonotary of the court, clerk of the court, clerk of the Crown and Pleas or clerk of the peace, it shall be conclusively deemed to be a reference to the registrar.
Each deputy registrar has and may perform or exercise all the duties, functions, authority and privileges of a deputy clerk of the Crown and Pleas of the court and where in any Act, regulation, rule of court or law in force in Manitoba there is a reference to a deputy clerk of the Crown and Pleas of the court it shall be conclusively deemed to be a reference to a deputy registrar.
The Registrar has and may perform or exercise all the duties, functions, authority and privileges formerly imposed or given to the recorder appointed under The Surrogate Courts Act (now repealed) and where in any Act or law in force in Manitoba there is a reference to the recorder appointed under that Act, it shall be conclusively deemed to be a reference to the Registrar.
Each deputy registrar of the court has and may perform or exercise all the duties, functions, authority and privileges formerly imposed or given to the registrar of a Surrogate Court and where in any Act or law in force in Manitoba there is a reference to the registrar of a Surrogate Court, it shall be conclusively deemed to be a reference to a deputy registrar of the court.
Every officer of the court, and every deputy or assistant to an officer of the court, and every clerk of the court, appointed under section 12 shall, before entering upon the duties of his office, take and subscribe the following oath:
I, , of , solemnly and sincerely promise and swear that
(i) 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,
(ii) I will not knowingly permit or suffer any alteration, obliteration or destruction, to be made or done, of any will or testamentary paper, or other document or paper committed to my charge.
So help me God.
Each oath required under subsection (1) shall be administered by a judge.
Every officer of the court, every deputy or assistant to an officer of the court, and every clerk of the court, appointed under this Act shall be paid a salary or other remuneration as provided by law.
Notwithstanding any other provision herein or in the rules, 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.
The neglect by any officer of the court to give security for the due performance of the duties of his office according to law does not affect or impair the validity of any act done by him during the time he actually continues to perform the duties of his office.
Sheriffs, deputy sheriffs, gaolers, constables, and other peace officers shall aid, assist, and obey, the court and the judges thereof respectively in the exercise of the jurisdiction conferred by this Act.
Every officer of the court may, for the purposes of any proceeding before him, administer oaths and examine parties and witnesses.
Each deputy registrar for a judicial centre, if proper accommodation is afforded for the purpose, shall keep an office in the court house in the judicial centre.
For each judicial centre of the court there shall be a seal for the court which shall be approved by the Lieutenant Governor in Council and which shall be kept in the custody of the registrar or the deputy registrar for the judicial centre.
The seal shall be impressed on every writ and other document issued out of, or filed in, the offices mentioned in subsection (1); and all such writs or documents and all exemplifications and copies thereof purporting to be sealed with the seal shall, in all courts of the province, be received in evidence without further proof thereof.
The Lieutenant Governor in Council may appoint an officer of the court or another officer to inspect the offices of the sheriffs and any other offices of the court; and the person so appointed shall be paid such sum therefor as the Lieutenant Governor in Council may direct.
All gaols in Manitoba are prisons of the court.
Reporters appointed, to report trials at sittings of the court, are officers of the court and they shall hold office during the pleasure of the Lieutenant Governor in Council and shall perform such other duties as may be assigned to them by rule or order of the court or order of the Lieutenant Governor in Council.
Every reporter hereafter appointed shall take the following oath before one of the judges, and the oath shall be filed:
I (A.B.) solemnly and sincerely promise and swear that I will faithfully report the evidence and proceedings in each case in which I act as reporter.
So help me God.
The Lieutenant Governor in Council may appoint special examiners for the court, who
(a) may administer oaths and take affidavits and depositions in the court, either within or outside the province;
(b) have the powers formerly possessed by masters extraordinary and examiners; and
(c) have authority to take depositions of parties and persons wherever the examination of parties and persons is authorized by the practice of the court or by this Act.
ADMINISTRATIVE CENTRES AND JUDICIAL CENTRES
The Lieutenant Governor in Council upon recommendation of the Attorney-General after consultation with the Chief Justice of the Queen's Bench may, by order, a) designate cities, towns or villages within Manitoba as administrative centres for the court at which administrative offices shall be established and maintained to provide various court services as determined by the Lieutenant Governor in Council and for the purposes of this clause the Lieutenant Governor in Council may determine that different court services be provided in the offices at different administrative centres;
(b) designate administrative centres as judicial centres at which regular sittings of the court shall be held for the trials without jury of civil actions, issues and matters brought before the court;
(c) designate administrative centres as judicial centres at which regular sittings of the court shall be held for trials with juries of civil actions, issues and matters brought before the court; and
(d) designate administrative centres as judicial centres at which regular sittings of the court shall be held for the trial of criminal actions, issues and matters brought before the court.
INSPECTION OF COURT BOOKS
Every person shall have access to, and is entitled to inspect, the several books of the court containing records or entries relating to actions or proceedings in the court and judgments entered; and no person desiring such access or inspection shall be required, as a condition of his right thereto, to furnish the names of the parties or the style of the causes or matters in respect of which such access or inspection is sought.
Every officer having the charge or custody of any such book shall, upon request, produce for inspection any pleading or proceeding or copy thereof and any judgment roll filed or entered in his office, or of which records or entries are by law required to be kept in that book.
SITTINGS AND DISTRIBUTION OF BUSINESS
Subject to the rules, the court, and the judges thereof respectively, may sit and act at any time, and at any place, 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 any statute or otherwise is required to be discharged.
The Chief Justice of the Queen's Bench or a judge designated by him, shall fix dates, as often in every year as the due dispatch of business and the public convenience may require, for sittings of the court at court houses in the judicial centres and for the trial of actions, matters and issues brought before the court.
The judges shall hold sittings of the court at the court houses in the judicial centres of the province, other than The City of Winnipeg, at least three times every year on dates to be fixed by the Chief Justice of the Queen's Bench, or a judge designated by him, with power to change such dates, or any of them, from time to time, for the trial of actions, matters and issues that are brought before the court and for hearing and disposing of all motions and applications that may be tried, heard or disposed of, in court or chambers; and any such trials, motions or applications may be postponed or adjourned to any other day, either at the same or at any other place.
Sittings of the court may be held at places, other than the judicial centres and the court houses therein which the Chief Justice of the Queen's Bench or a judge designated by him for the purpose, may from time to time appoint.
The Chief Justice of the Queen's Bench shall direct the transfer of papers, documents and records of the court on file in any office of the court in any judicial centre or administrative centre which ceases to be a judicial centre or administrative centre to another office of the court as may be required and make provision for any other act or thing necessarily consequent upon a city, town or village ceasing to be a judicial centre or administative centre or a city, town or village being designated as a judicial centre or administrative centre.
(a) a city, town or village ceases to be a judicial centre or administrative centre; or
(b) a city, town or village is newly designated as a judicial centre or administrative centre;
the Chief Justice of the Queen's Bench may, by order, direct that actions and proceedings, or any particular action or proceeding or classes of actions or proceedings, had and taken in the court in one judicial centre or administrative centre be transferred and continued in the court in another judicial centre or administrative centre, as the case may be; and thereupon the actions and proceedings to which the order relates shall be deemed to be actions and proceedings in the court in the judicial centre to which the actions or proceedings are transferred.
The sittings of the court for the trial of civil causes, matters, and issues, may, in the discretion of the judge appointing the days therefor, or of the judge who has been appointed to preside or is presiding thereat, be held separate and apart from the sittings for the trial of criminal matters and proceedings, either on the same day or on a different day.
Sittings of the court may, at the discretion of the court or of the judge who is to hold them, be held in the court house of the judicial centre in which they are appointed to be held, or at such other place in the judicial centre as the judge selects and the judge, in all respects, has the same authority as a judge formerly had when sitting at nisi prius in regard to the use of the court houses, jails and other buildings and apartments set aside for the administration of justice.
When the same day has been appointed for a sitting of the court in criminal matters, and for the trial of civil causes, matters, and issues, the court shall hear and dispose of the causes, matters, and issues, to be brought before it in the following order:
(a) Criminal matters and proceedings.
(b) Causes, matters, and issues, which are to be tried with a jury.
(c) Other civil causes, matters and issues.
Where the judge whose duty it is to hold any sittings does not arrive in time, or is not able to open court on the day appointed for that purpose, the sheriff may, after six o'clock in the afternoon of that day, by proclamation, adjourn the sittings to an hour on the following day to be named by him, and so from day to day until the judge arrives or until other directions from the judge or from the chief justice are received.
Commissions of assize or any other commissions, either general or special, may be issued by the proper authority, assigning to the persons to be therein named the duty of trying and determining, at any place specially fixed for that purpose by the commission, any causes or matters, or any questions or issues of fact or of law, or partly of fact and partly of law, in any cause or matter pending in the court, or the exercise of any civil or criminal jurisdiction capable of being exercised by the court; and any commission so issued shall be of the same validity as if it were enacted in the body of this Act; and any commissioners shall, when engaged in the exercise of any jurisdiction so assigned to them, be deemed to constitute the court.
There shall be a sitting of the court at Winnipeg on Monday, or if Monday is a holiday, on the first juridical day thereafter, of each week, or on such other day as the judge assigned to preside at the sitting fixes, except in vacation, for the trial of causes, matters, and issues, that are to be tried by a judge without a jury; and at any such sitting the judge has all the powers that were formerly possessed by a judge of assize and nisi prius and by a judge presiding at equity sittings.
A judge sitting pursuant to section 36 may adjourn the trial of any cause or the hearing or determination of any matter before him to any other day or days, or from day to day, and shall then have the same power with reference thereto as if the same were tried, heard, or determined, on the day on which the same was first properly before him.
The sittings mentioned in sections 28, 29, 31, 32, 36, and 37, shall be presided over by one of the judges of the court; and while holding the said sittings such judge possesses, enjoys, and may exercise, all the powers and authorities of the court, and in civil proceedings may reserve the giving of his decision on questions raised at the trial; and any such decision has like force and effect when given as the decision of a judge given at the sittings of the court.
Every action and proceeding in the court, and all business arising out of it, except as hereinafter provided, shall, so far as is practicable and convenient, be heard, determined, and disposed of, before a single judge.
A judge sitting alone shall decide all questions coming properly before him, and shall not reserve any case, or any point in the case, for the consideration of the court en banc.
In all such cases any judge sitting in court shall be deemed to constitute the court.
All causes and matters in the court shall be distributed among the several judges in such manner as may, from time to time, be determined by any of the rules or any orders or arrangements to be made under the authority of this Act.
The judges shall, in rotation or otherwise as they may agree among themselves, sit in chambers or elsewhere, and shall transact all such business as may be transacted by a single judge out of court, subject to the right of appeal as provided in this Act and the rules from time to time in force.
SITTINGS EN BANC
The court shall sit en banc for the purpose of hearing any applications and disposing of any matters that may properly come or be brought before it, at any time when called together by the chief justice or, in case of his absence from the province or illness, by the senior puisne justice of the court.
The court for the purpose of sitting en banc shall be constituted by three or more of the judges thereof; but any two judges sitting en banc may enlarge the hearing of any matter before the court.
Subject to section 27, the sittings of the court en banc shall be held in The City of Winnipeg.
The court is and shall continue to be a court of record of original jurisdiction, and shall possess and 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 matters civil and criminal whatsoever, and shall have, use, enjoy, and exercise, all the rights, incidents, and privileges, of those courts as fully to all intents and purposes as they were, on the fifteenth day of July in the year 1870, possessed, used, exercised, and enjoyed, by any of Her late Majesty Queen Victoria's superior courts of common law at Westminster, or by the Court of Chancery at Lincoln's Inn, or by the Court of Probate, or by any other court in England having cognizance of property and civil rights, and of crimes and offences.
The court shall hold plea in all, and all manner of actions, suits, and proceedings, cause and causes of action, matters, suits, and proceedings, whether at law, in equity or probate, or howsoever otherwise, as well criminal as civil, real, personal, and mixed or otherwise howsoever; and shall proceed in all such actions, suits, proceedings, and causes by such process and course of proceedings as are provided by law, and as shall tend with justice and dispatch to determine them.
The court shall hear, decide, and determine, all issues of law or of fact when the issue of fact is submitted to it by law.
The Court shall, with or without a jury as provided by law, decide and determine all matters of controversy relative to property and civil rights both legal and equitable, according to the laws existing or established and being in England as they were, existed and stood, on July 15, 1870, in so far as they can be made applicable to matters relating to property and civil rights in the province except as they may have been or are changed or altered
(a) by an Act of the Legislature or the Parliament of Canada heretofore or hereafter enacted; or
(b) by any Act of the Parliament of the United Kingdom affecting the province and enacted before the coming into force of the Act of the Parliament of the United Kingdom known as the Statute of Westminster, 1931; or
(c) by any rule or order of the court heretofore or hereafter made.
All matters relative to testimony and legal proof in the investigations of fact and the forms thereof, 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 were, existed and stood, in England on July 15, 1870, except as they may have been or are changed or are altered
(a) by an Act of the Legislature or the Parliament of Canada heretofore or hereafter enacted; or
(b) by any Act of the Parliament of the United Kingdom affecting the province and enacted before the coming into force of the Act of the Parliament of the United Kingdom known as the Statute of Westminster, 1931; or
(c) by any rule or order of the court heretofore or hereafter made.
Nothing herein affects any civil rights lawfully acquired or existing under the laws of Assiniboia on the day, and in the year, aforesaid.
An Act for the Better Observation of the Lord's Day, commonly called Sunday, 1676, 26 CAR. 2, C. 7, also known as The Sunday Observance Act, is repealed insofar as it is part of the laws of the province.
There shall be a division of the court which shall be called "The Family Division of the Court of Queen's Bench" (in this section referred to as "the division") which shall consist of the associate chief justice of the family division, five puisne judges who shall devote their full time to the division and three other puisne judges or such greater or lesser number as the chief justice may designate to serve as judges of the division for such periods as the business of the division may require.
For the purposes of this section, "family action" means any civil action or proceeding for the determination or variation of the family status of the parties, or of custody or wardship of infants, or of the family obligations and rights between married persons or persons who have been married or between persons who are living or have lived together as husband and wife in the relationship commonly referred to as a common-law relationship, or of family obligations and rights between parents and their children whether the action or proceeding is based on statute law, common law or the inherent jurisdiction of the court, other than proceedings by way of summary conviction, and without limiting the generality of the foregoing includes
(a) every proceeding under The Child and Family Services Act;
(b) every proceeding under subsection 3(2) or 5(3) of The Change of Name Act;
(c) every proceeding under section 6, 11, 12 or 13 of The Dower Act;
(d) every proceeding under The Family Maintenance Act;
(e) every proceeding under the Infants' Estates Act;
(f) every proceeding under The Law of Property Act for a partition or sale of land between spouses, or 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 relationship;
(g) every proceeding under section 7 of The Married Women's Property Act;
(h) every proceeding under The Marital Property Act;
(i) every application under The Marriage Act for consent to an intended marriage of a minor;
(j) every proceeding under The Reciprocal Enforcement of Maintenance Orders Act;
(k) every proceeding under The Parents Maintenance Act;
(l) every proceeding under The Child Custody Enforcement Act;
(m) every proceeding under The Divorce Act, 1985;
(n) every proceeding under The Divorce and Matrimonial Causes Act;
(o) every proceeding for enforcement or variation of an order or judgment of any court requiring a person to pay maintenance or alimony to or on behalf or the person's spouse, former spouse, child or other dependant or to or on behalf of another person with whom the first mentioned person is living or has lived as husband and wife in the relationship commonly referred to as a common-law relationship;
(p) every proceeding for an order, judgment or declaration respecting the family status of the parties, custody or wardship of an infant or any other similar application based on the inherent jurisdiction of the court; and
(q) an application for an order under subsection 155(4) of The Insurance Act;
other than proceedings by way of summary conviction.
Notwithstanding any other Act of the Legislature, every family action within the area of the province designated under clause (12)(a) shall be brought in the division.
Every family action within the extended area of the province designated under clause (12)(b) that is brought in the court shall be brought in the division and, notwithstanding any other Act of the Legislature, any family action within the extended area designated under clause (12)(b) may be brought in the division.
All proceedings which before the coming into force of this Act in any area designated under clause (12)(a) were properly constituted before another court shall be continued in that court.
Where a judge or a master considers that an effort should be made to resolve any issue otherwise than at a formal trial, he may, at any stage of the proceedings, refer the issue to a conciliation officer or to any other person agreed to and engaged by the parties.
Where an issue is referred for conciliation, the conciliation officer, with the assistance of such other conciliation officers, or a judge, as may be required, shall attempt to resolve the issue but where the conciliation officer concludes that a settlement cannot be reached, he shall report that the case is ready for trial.
Unless the parties otherwise agree, no conciliation officer or other person who renders services to a person pursuant to subsection (6)
(a) is competent to give evidence in respect of
(i) written or oral statements made to him by any party during the provision of the services,
(ii) knowledge or information acquired during the provision of the services; or
(b) shall be required to produce any written statement mentioned in sub-clause (a)(i) at a trial, hearing or other proceeding.
If a report is required for the trial of a proceeding a judge of the court may request a family investigator to interview the parties, and such others as may be necessary, to provide the court with information and opinions upon which a determination of custody, access and other family related matters may be made.
A family investigator may be called as a witness in any proceeding where a report has been given and may be cross-examined by all parties.
In this section, "conciliation officer" or "family investigator" means an employee of the government of Manitoba appointed for the purposes of this section as a conciliation officer or family investigator or both by the Attorney-General.
The Lieutenant Governor in Council may make regulations designating
(a) the area of the province within which the division has exclusive jurisdiction in family actions under subsection (3); and
(b) the extended area of the province within which the division has concurrent jurisdiction in family actions under subsection (4).
Notwithstanding subsection (2), where any proceeding or application mentioned in subsection (2) is joined with any other proceeding or application which is not mentioned in subsection (2) there shall be no duplication of proceedings or applications and a judge of the court or division before whom the main proceeding or application between the parties is brought has full power to hear and determine all proceedings and applications necessary to determine all matters in dispute.
In any area designated under clause (12)(a), any order including an order made before this section comes into force, which is or was enforceable in the Provincial Court (Family Division) may be enforced, varied, discharged or otherwise dealt with in the Family Division of the court and in no case is it necessary to obtain an order of the court to permit the transfer of proceedings from the Provincial Court to the Family Division of the court.
In any area designated under clause (12)(b), any order including an order made before this section comes into force, which is or was enforceable in the Provincial Court (Family Division), may, on application to the Family Division, be transferred to and enforced, varied, discharged or otherwise dealt with in the Family Division.
Subject to section 49, there is no limitation as to time on the recovery of periodic payments of alimony or maintenance in default under a judgment or order of the court.
Where a judgment debtor under a judgment or order of the court requiring the payment of alimony or maintenance dies and at the time of death any periodic payments of alimony or maintenance are in default, the amount in default is, subject to section 49, a debt of the estate of the judgment debtor and recoverable by the person to whom the payments were required to be paid in the same manner as any other debt recoverable from the estate.
Where the person to whom periodic payments of alimony or maintenance are required to be paid under a judgment or order of the court dies, the personal representative of the deceased may, subject to section 49, recover for the estate of the deceased any periodic payments of the alimony or maintenance that are in default at the time of the death of the deceased.
Where alimony or maintenance payments under a judgment or order of the court are in default, a judge of the court may, on application, relieve the judgment debtor under the judgment or order, 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
(a) that, having regard to the interests of the maintenance debtor or the estate of the maintenance debtor, as the case may be, it would be grossly unfair and inequitable not to do so; and
(b) that, having regard to the interests of the judgment creditor under the judgment order, or the estate of the judgment creditor, as the case may be, it is justified.
In every case in which the court has authority to order the execution of a deed, conveyance, contract, transfer, or assignment, of any property, real or personal, or other document, or the endorsement of any negotiable instrument, the court may by order vest the real or personal property in such person or persons, and in such manner, and for such estates, as would be done by any such deed, conveyance, contract, assignment, transfer, or endorsement, if executed; and thereupon the order has the same effect as if the legal or other estate or interest in the property had been actually conveyed by deed or otherwise for the same estate or interest to the person in whom the same is so ordered to be vested, or, in the case of a chose in action, as if the chose in action had been actually assigned to the last-mentioned person.
Where any person neglects or refuses to comply with a judgment or order directing him to execute any conveyance, contract, or document, or to endorse any negotiable instrument, the court may, on such terms and conditions, if any, as may be just, order that the deed, conveyance, contract, assignment, or other document, shall be executed, or that the negotiable instrument shall be endorsed, by such person as the court may nominate for that purpose; and in any such case the conveyance, contract, document, or instrument, so executed or endorsed shall operate, and be for all purposes available, as if it had been executed or endorsed by the person originally directed to execute or endorse it.
The court has the same jurisdiction as the Court of Chancery had in England, on July 15, 1870, in regard to leases and sales of settled estates, and in regard to enabling infants, with the approbation of the court, to make binding settlements of their real and personal estate on marriage, and in regard to questions submitted for the opinion of the court in the form of special cases on the part of such persons as may by themselves, their committees or guardians, or otherwise, concur therein.
The examination of a married woman, apart from her husband, as to her knowledge of the nature and facts of an application for the sale or leasing of any settled estate, or as to her consent thereto, is in no case necessary.
Money realized from the sale or leasing of any settled estate, or any interest therein, shall be paid, applied, or invested, as the court directs.
The court has jurisdiction to try the validity of last wills and testaments, whether they refer to real or personal estate, and whether probate of the will has been granted or not, and to pronounce such wills and testaments to be void for fraud and undue influence or otherwise, in the same manner, and to the same extent, as the court has jurisdiction to try the validity of deeds and other instruments.
The court also has jurisdiction
(a) in respect of infants and lunatics and their property and estates as provided by The Infants' Estates Act and The Mental Health Act; and
(b) in respect of partitions and the sale of real estate as provided in The Law of Property Act;
and otherwise as provided by any Act of the Legislature or by the law of England as it stood on July 15, 1870.
The court also has jurisdiction, and shall be deemed always to have had jurisdiction
(a) in attachment of personal property of a person against whom an action has been commenced in the court or against whom a judgment has been given; and
(b) in attachment of debts and obligations and liabilities, due, owing, payable or accruing due, by a third party to a person against whom a judgment has been given or against whom an action has been commenced but only if that action is for a debt or liquidated demand.
A mandamus to command the fulfilment of any duty in the fulfilment of which the party claiming it is personally interested may be granted in any action in which it is claimed by the statement of claim or by the counter-claim; but, notwithstanding anything herein, the court may upon motion, not in an action, in all cases where the prerogative writ of mandamus might at any time formerly have been granted, grant an order of mandamus which shall have the same effect as the writ of mandamus formerly had.
Subject to sections 58 and 59, the court may grant a mandamus or an injunction or appoint a receiver, by an interlocutory order, in all cases in which it appears to the court to be just or convenient so to do.
Any such order may be made either unconditionally or upon such terms and conditions as the court thinks just.
Where, either before, or at, or after, the hearing of any cause or matter, an application is made for an injunction to prevent any threatened or apprehended waste or trespass, the injunction may be granted, if the court thinks fit, whether the person against whom the injunction is sought is, or is not, in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both or by either of the parties are legal or equitable.
Where the court has jurisdiction to entertain an application for an injunction against a breach of covenant, contract, or agreement, or against the commission or continuance of a wrongful act, or for the specific performance of a covenant, contract, or agreement, the court may award damages to the party injured either in addition to, or in substitution for, the injunction or specific performance; and the damages may be ascertained in such manner as the court directs, or the court may grant such other relief as may be deemed just.
The court shall not grant an injunction that requires a person to work for or perform personal services for his employer.
No person shall, by reason only of his refusal, neglect or omission to perform work or personal services for his employer, be held in contempt of court for failing to comply with any order of the court.
Subject to subsection (3) the court shall not grant an injunction that restrains a person in the exercise of his right to freedom of speech.
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, shall be deemed to be the exercise of the right of that person to freedom of speech.
Nothing in this section affects
(a) the enforcement by criminal or quasi criminal proceedings of any Act of Parliament or of the Legislature or of any by-law of a municipality, respecting
(i) the use of public thoroughfares; or
(ii) the protection of public property ; or (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) the enforcement by civil proceedings
(i) of any 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.
In this section "public thoroughfare" includes any walk, driveway, roadway, square and parking area provided outdoors at the site of and in conjunction with any business or undertaking and to which the public is normally admitted without fee or charge whether the walk, driveway, roadway, square or parking area is owned by the person carrying on the business or undertaking or by some other person or is publicly owned.
On the ex parte application of any board, commission or tribunal established under an Act of the Legislature with authority to take evidence, or of a commissioner appointed under Part V of The Manitoba Evidence Act to make an inquiry, the court may
(a) order the issue of a commission for the examination under oath of and the production of documents by a person who is outside Manitoba;
(b) order that the commission be directed to the applicant or to a person nominated by the applicant or to any other person;
(c) issue letters of request to courts of other jurisdictions to assist in the implementation of a commission; and
Notwithstanding any agreement to the contrary, where default has occurred in payment of any money due under any mortgage of land, agreement for sale of land with or without chattels, or agreement relating thereto, or in the observance of any covenant contained in any such mortgage or agreement, and under the terms of the mortgage or agreement, in consequence of the default, the payment of money not payable by reason merely of lapse of time is accelerated, the court, in any action for enforcement of the rights of the mortgagee or of the vendor or of any person claiming through or under him, if a defendant has paid into court the full amount of the moneys due under the mortgage or agreement (exclusive of the money not payable by reason merely of lapse of time), together with the costs of the action, and has performed each and every such covenant that is performable and has paid into court an amount which the court deems sufficient to cover the loss or damage suffered by the plaintiff by reason of the breach of any and every such covenant that has become not performable,
(a) if judgment has not been recovered, has jurisdiction to grant relief from the acceleration, and shall, upon application, grant such relief and dismiss the action;
(b) after judgment has been recovered, but before sale or recovery of possession of the land or final foreclosure of the equity of redemption or final determination of the agreement, has jurisdiction to grant relief from the acceleration and shall, upon application, grant such relief and stay proceedings in the action.
Where, after proceedings have been stayed under section 61, fresh default occurs under the mortgage or agreement, the court shall upon application remove the stay.
ADMINISTRATION OF JUSTICE
In every civil cause or matter law and equity shall be administered according to the rules following:
Where a plaintiff claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim, asserted by any defendant in that cause or matter, or to any relief founded upon a legal right which heretofore could only have been given by a court of equity, the court shall give the plaintiff such and the same relief as ought to have been given by the Court of Queen's Bench, on its equity side, in a suit or proceeding for the same or the like purpose properly instituted before the passing of The Queen's Bench Act, 1895.
Where a defendant claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim, asserted by any plaintiff in that cause or matter, or alleges any ground of equitable defence to any claim of the plaintiff in that cause or matter, the court shall give to every equitable estate, right, or ground of relief, so claimed, and to every ground of equitable defence so alleged, such and the same effect, by way of defence against the claim of the plaintiff, as the Court of Queen's Bench on its equity side, ought to have given if the same or the like matters had been relied on by the way of defence in a suit or proceeding instituted in that court for the same or the like purpose before the passing of The Queen's Bench Act, 1895.
The court may also grant to any defendant, in respect of any equitable estate or right or other matter of equity, and also in respect of any legal estate, right, or title, claimed or asserted by him, all such relief against any plaintiff as the defendant has properly claimed by his pleading, and as the court might have granted in a suit instituted for that purpose by the same defendant against the same plaintiff; and also all such relief relating to, or connected with, the original subject of the cause or matter, and in like manner claimed against any other person, whether already a party to the same cause or matter or not, who has been duly served with notice in writing of that claim pursuant to the rules or to any order of the court, as might properly have been granted against that person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose; and every person served with any such notice shall thenceforth be deemed a party to the cause or matter, with the same rights in respect of his defence against that claim as if he had been duly sued in the ordinary way by the defendant.
The court shall recognize and take notice of all equitable estates, titles, and rights, and all equitable duties and liabilities appearing incidentally in the course of any cause or matter, in the same manner in which the Court of Queen's Bench, on its equity side, would have recognized and taken notice thereof in any suit or proceeding duly instituted therein before the passing of The Queen's Bench Act, 1895.
Subject to the provisions of this Act for giving effect to equitable rights and other matters of equity, the court shall give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations, and liabilities, existing by the common law or created by any statute, in the same manner as they would have been given effect to by the Court of Queen's Bench for Manitoba prior to the passing of The Queen's Bench Act, 1895.
The court, in the exercise of the jurisdiction vested in it by this Act, in every cause or matter pending before it may grant and shall grant, either absolutely or on such terms and conditions as it deems just, all such remedies as any of the parties may appear to be entitled to in respect of any legal or equitable claim properly brought forward by them in the cause or matter, so that as far as possible all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided.
The court may relieve against all penalties and forfeitures, and, in granting such relief, to impose such terms as to costs, expenses, damages, compensation, and all other matters, as may be deemed just.
No action or proceeding is open to objection on the ground that a merely declaratory judgment or order is sought thereby; and the court may make binding declarations of right whether any consequential relief is or could be claimed or not.
No cause or proceeding shall be restrained by prohibition or injunction; but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained prior to the passing of The Queen's Bench Act, 1895, either unconditionally or on any terms or conditions, may be relied on by the way of defence thereto.
Nothing in this Act disables the court from directing a stay of proceedings in any cause or matter pending before it; and any person, whether a party or not to any such cause or matter, who would have been entitled, prior to the passing of The Queen's Bench Act, 1895, to apply to any court to restrain the prosecution thereof, or who may be entitled to enforce by attachment or otherwise any judgment or order, contrary to which all or any part of the proceedings in the cause or matter may have been taken, may apply to the court by motion in a summary way for a stay of proceedings in the cause or matter, either generally or so far as may be necessary for the purposes of justice; and the court shall thereupon make such order as shall be just.
Where an action is brought in the court for a cause of action for which a suit or action has been brought and is pending between the same parties or their representatives, in any place or country out of the province, the court may make an order staying all proceedings in the court until satisfactory proof is offered to the court that the suit or action so brought in the place or country out of the province is determined or discontinued.
Subject to the express provisions of any other Act of the Legislature, and generally in all matters not particularly mentioned in this Act, in which there was formerly, or is, any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity prevail.
The provisions of sections 55, 56, 57, 62, 63 and 64 are in force and effect in all courts so far as the matters to which they relate are cognizable by such courts.
Actions for defamation, malicious arrest, malicious prosecution, and false imprisonment, shall be tried with a jury, unless the parties in person or by their solicitors or counsel waive such trail.
Where a civil action is to be tried with a jury, if any party to the action enters it for trial and pays the fee for jury trials prescribed under The Law Fees Act to the proper officer of the court, the action shall be tried by jury but no party shall be compelled so to enter the action, and if no party does so, all parties shall be deemed to have waived their right to a jury trial.
Actions against a municipality for damages in respect of injuries sustained by reason of the default of the municipality in keeping in repair a highway or bridge shall be tried by a judge without a jury.
Except where otherwise expressly provided by this Act, all issues of fact shall be tried, and all damages shall be assessed, by a judge without a jury, unless otherwise ordered by a judge.
Notwithstanding subsections (1) to (4), a judge presiding at a trial may direct that the action or issue shall be tried or the damages assessed by a jury.
Upon a trial with a jury the presiding judge may direct the jury to render either a general verdict or a special verdict, or may direct the jury to answer specified questions of fact; and upon such answers shall give his decision, which shall operate as a verdict, and judgment shall be entered accordingly.
In the absence of a direction to the contrary the jury may give a general verdict or a special verdict.
This section does not apply to actions of defamation.
Nothing in this Act shall be construed, by implication or otherwise, as limiting any power heretofore possessed at common law by the presiding judge or other presiding officer of any court of excluding the general public, or any particular class of persons, from the court room in any case when the judge or officer deems such exclusion necessary or expedient.
In actions for malicious prosecution, the judge shall decide all questions both of law and fact necessary for determining whether or not there was reasonable and probable cause for the prosecution.
RESIGNATION OR DEATH OF JUDGE
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 eight weeks after his resignation, appointment, or ceasing to hold office as aforesaid, give judgment in any cause, action, or matter previously tried or heard before him, as if he had not so resigned, been appointed, or ceased to hold office.
Where a judge has heard a cause, action, or matter, and dies without delivering judgment or where, in cases to which subsection (1) applies, a judge fails to deliver judgment within the time thereby limited, the cause, action, or matter, shall be deemed to be and be dismissed without costs to any party, and the proper officer of the court shall forthwith, on application of any party to the proceedings, enter judgment accordingly; and an appeal lies from such judgment in the same manner as if the judgment had been delivered by the judge, but on such an appeal there shall be no inference that the judgment was proper on the merits.
Interest is payable in all cases in which it is now payable by law or in which it has been usual for a jury to allow it.
On the trial of an issue, or an assessment of damages, upon a debt or sum certain, payable by virtue of a written instrument at a time certain, interest may be allowed from the time when the debt or sum became payable.
Where such a debt or sum is payable otherwise than by virtue of a written instrument at a time certain, interest may be allowed from the time when a demand of payment was made in writing, informing the debtor that interest would be claimed from the date of the demand.
In actions for the conversion of goods or for trespass de bonis asportatis, the jury, or the judge if the case is tried without a jury, may give interest in the nature of damages over and above the value of the goods at the time of the conversion or seizure, and in actions on policies of insurance may give interest over and above the money recoverable thereon.
Unless otherwise ordered by the court, a verdict or judgment bears interest from the time of the rendering of the verdict, or of giving the judgment, as the case may be, notwithstanding that the entry of judgment has been suspended by any proceeding in the action, including an appeal; and in cases where there is an agreement between the parties that a special rate of interest shall be secured by the judgment, the judgment, if it so provides, shall bear interest at the rate so agreed.
Any person who would, under the circumstances alleged by him to exist, become entitled, upon the happening of any future event, to any office or to any estate or interest in any property, real or personal, the right or claim to which cannot by him be brought to trial before the happening of that event, is entitled to maintain an action in the court to perpetuate any testimony that may be material for establishing that claim or right; and all laws, rules and regulations, not contrary to this section, in force or in use in actions to perpetuate testimony, or respecting depositions taken in such actions shall in making such depositions be in force, and used and applied in all actions instituted under the authority of this section and with respect to depositions taken in the action.
No action to perpetuate the testimony of witnesses shall be set down for trial.
In all actions which may be instituted under section 74 touching any office, or any other matter or thing in which Her Majesty may have any estate or interest, the Attorney-General may be made a party defendant thereto; and in all proceedings the depositions so taken in any such action in which the Attorney-General was so made a defendant may be offered in evidence, and those depositions may be admissible notwithstanding an objection to the depositions upon the ground that Her Majesty was not a party to the action in which the depositions were taken.
ACTIONS ON BONDS
In an action commenced or prosecuted in any court upon a bond for non-performance of any covenant or agreement in any indenture, deed, or writing, the plaintiff may assign as many breaches as he thinks fit, and, upon trial of the
action, not only such damages and costs as have heretofore usually been assessed shall be assessed, but also damages for such of the breaches so assigned as the plaintiff upon the trial of the issues proves, and the like judgment shall be entered as heretofore in the action.
Where judgment is given for the plaintiff by confession or default, he may suggest as many breaches of the covenants and agreements as he thinks fit, and the damages that he has sustained thereby shall be assessed; and, if the defendant, after the judgment is entered and before any execution executed, pays into the court in which the action is brought, to the use of the plaintiff, the damages so to be assessed by reason of all or any of the breaches of such covenants or agreements, together with the costs of suit, a stay of execution on the judgment shall be entered upon record.
Where, by reason of any execution executed, the plaintiff or his executors or administrators is fully paid or satisfied, all such damages so to be assessed, together with his or their costs of suit, and all reasonable charges and expenses for executing the execution, the body, land, or goods, of the defendant shall thereupon forthwith be discharged from the execution, which shall likewise be entered upon record; but the judgment shall, nevertheless, remain, continue, and be as a further security to answer to the plaintiff and his executors or administrators such damages as are or may be sustained for further breach of any covenant or agreement in the same indenture, deed, or writing contained, upon which the plaintiff may apply to the court in which judgment is entered for leave to issue execution upon the judgment against the defendant, or his executors or administrators, suggesting other breaches of the covenants or agreements, and to call upon him or them to show cause why execution be not awarded upon the judgment; upon which the court shall make such order as may be deemed just.
Upon payment or satisfaction of such future damages, costs, and charges, all further proceedings on the judgment shall again be stayed, and the defendant, his body, land, or goods, shall be discharged out of execution.
ACTIONS OF ACCOUNT
Actions of account shall and may be brought and maintained against the executors and administrators of a guardian, bailiff, and receiver, and also by one joint tenant or tenant-in-common, his executors and administrators, against the other as bailiff for receiving more than his just share or proportion, and against the executor and administrator of such other joint tenant or tenantin-common.
Where there are mutual debts between the plaintiff and defendant, or, if either party sue or is sued as executor or administrator, where there are mutual debts between the testator or intestate and either party, one debt may be set against the other.
Mutual debts may be set against each other, notwithstanding that those debts are deemed in law to be of a different nature, except where either of the debts accrues by reason of a penalty contained in any bond or specialty.
Where either the debt for which the action is brought or the debt intended to be set against it, has accrued by reason of any such penalty, the debt intended to be set-off shall be pleaded, and it shall be shown by the pleading how much is truly and justly due on either side; and if the plaintiff recovers in any such action, judgment shall be entered for no more than appears to be truly and justly due to the plaintiff after one debt is set against the other.
TENDER OF AMENDS IN CASE OF TORTS
A person who has committed a wrong giving a cause of action for the recovery of damages to the person wronged may, at any time before action, tender amends; and the tender has the same effect as a tender in an action for the recovery of a debt.
PAYMENT POST DIEM
Where an action is brought upon a bill, or judgment, if the defendant has paid the money due upon the bill or judgment, the payment may be pleaded in the action; and, where an action is brought upon a bond which has a condition or defeasance to make it void upon payment of a lesser sum at a day or place certain, if the obligor, his heirs, executors, or administrators have, before action brought, paid to the obligee, his executors or administrators, the principal and interest due by the condition or defeasance of the bond, though the payment was not made strictly according to the condition or defeasance, yet it may nevertheless be pleaded in the action, and is as effectual a bar thereof as if the money had been paid at the day and place according to the condition or defeasance and had been so pleaded.
Principal, interest, and costs, brought into court.
Where, at any time pending an action upon any bond with a penalty, the defendant brings into the court all the principal money and interest due on the bond, and also all such costs as have been expended in any suit upon the bond, the money so brought in shall be deemed, and taken, to be in full satisfaction and discharge of the bond; and the court may give judgment to discharge every such defendant of and from the bond accordingly.
DISPENSING WITH SERVICE
In any action
(a) founded upon any contract made or entered into or wholly or in part to be performed within the province; or
(b) founded upon any contract by which it has been agreed that the courts of the province shall have jurisdiction; or
(c) for the foreclosure or redemption of any mortgage affecting land situated in the province; or
(d) for the specific performance, rescission, or determination, of any contract relating to land situated within the province; or
(e) for the foreclosure of any equitable interest in land situated within the province; or
(f) for the execution as to property situated within the jurisdiction of the trusts of a written instrument which ought to be executed according to the law of the province;
(g) upon proof that the plaintiff after diligent inquiry has been unable to find the defendant or a certain defendant either within or without the jurisdiction or an attorney or agent of such defendant within the jurisdiction; and
(h) upon such conditions as to giving security and as to publication of notice of the action as to the court seems meet;
may dispense with service of the statement of claim upon that defendant, and may give all necessary directions for proceeding to trial.
Where the plaintiff is directed to give security under subsection (1), the security shall be by bond with one or more sureties, to and approved by the registrar or a deputy registrar, containing a condition to pay all sums and costs that the defendant may recover in case judgment is given in the action and afterwards set aside, and other provisions that the court may direct.
The plaintiff before obtaining judgment against the defendant shall prove his claim in the same manner as if the defendant had duly defended the action.
The defendant may, at any time before judgment is entered, file a statement of defence and defend in the ordinary way; and, in that case, the action shall be proceeded with in the same manner as if the statement of defence had been filed in due course.
Upon the expiration of a period of three years from the date of recovery of the judgment, any and all obligation under any bond that has been given ceases; and the registrar or the deputy registrar, as the case may be, shall forthwith upon application deliver up to the plaintiff, to be cancelled, any bond that has been given, if no proceedings to set aside the judgment have been commenced within that period.
PHYSICAL EXAMINATION OF PARTIES
In any action or proceeding for the recovery of damages or other compensation for or in respect of bodily injury sustained by any person, the court which, or the judge or the person who, by consent of parties, or otherwise, has power to fix the amount of the damages or compensation, may order that the person in respect of whose injury damages or compensation are sought, shall submit himself to a physical examination by a duly qualified medical practitioner or by more than one duly qualified medical practitioner; but no medical practitioner shall be appointed to make such an examination who is a witness on either side.
Every such medical practitioner shall be selected by the court, judge, or person, making the order, and may afterwards be a witness on the trial unless the court, judge, or person, before whom the action or proceeding is tried otherwise directs.
The court, judge, or other person, may order a second examination or further examinations upon such terms as to costs as may be deemed proper.
If the person in respect of whose injury damages or compensation are sought fails, without good cause, to comply with the order, the plaintiff is liable to have his action dismissed.
CERTIFICATE OF LIS PENDENS
The institution of an action or the taking of a proceeding, in which any title to or interest in land is brought in question, shall not be deemed notice of the action or proceeding to any person not a party to it, until a certificate, signed by the proper officer, has been registered in the land titles office of the land titles district in which the land is situated.
The certificate may be in the following form:
Subsection (1) does not apply to an action or proceeding for foreclosure or sale upon a registered mortgage.
Where a certificate is registered, and the plaintiff or other party at whose instance it was issued, does not in good faith prosecute the action or proceeding, the court may at any time make an order vacating the registration of the certificate.
Where a certificate is registered, and the plaintiff's claim is not solely to recover land, or an estate or interest in land, but to recover money or money's worth, chargeable on or payable out of land, or some estate or interest in it, or for the payment of which he claims that the land or the estate or interest ought to be subjected, or where the plaintiff claims land or some estate or interest in land, and in the alternative, damages or compensation in money or money's worth, the court may, at any time, make an order vacating the registration of the certificate upon such terms as to giving security or otherwise as may be deemed just.
The court may, at any time, vacate the registration of a certificate upon any other ground which may be deemed just.
On an application under this section the court may order any of the parties to the application to pay the costs of any of the other parties to it, or may make any other order with respect to costs, which under all the circumstances may be deemed just.
The order vacating the registration of a certificate may be registered on or after the 14th day from the date of the order, unless the order is meanwhile reversed or its registration is postponed or forbidden.
Where a certificate of lis pendens has been filed and the action or proceeding to which it relates
(a) has been discontinued; or
(b) has been dismissed or otherwise finally disposed insofar as the land affected by the certificate is concerned and
(i) no appeal from the dismissal or disposal has been entered and the time limited for an appeal therefrom has expired, or
(ii) the dismissal or disposal is entered by consent;
a certificate of the registrar or deputy registrar setting forth the facts may be registered in the land titles office in which the certificate of lis pendens was registered and when the certificate issued under this subsection is so registered it shall discharge and remove the lis pendens.
Where the registration of a certificate is vacated, any person may deal with the land as fully as if the certificate had not been registered, and it is not incumbent on any purchaser or mortgagee to inquire as to the allegations in the action or proceeding, and his rights are not affected by his being aware of the allegations.
CHARGING ORDERS ON STOCKS, ETC.
Where a person against whom a judgment has been entered in any court in Manitoba, has any government stock, funds, or annuities, or any stock or shares of or in a company or corporation in the province, standing in his name in his own right, or in the name of any person in trust for him, a judge of the court, on the application of any judgment creditor, may order that the stock, funds, annuities, or shares, or such of them, or such part thereof respectively, as he thinks fit, shall stand charged with the payment of the amount for which judgment has been so recovered, and interest thereon; and the order entitles the judgment creditor to all such remedies as he would have been entitled to if the charge had been made in his favour by the judgment debtor; but no proceedings shall be taken to have the benefit of such a charge until after the expiration of six months from the date of the order.
Every such order shall be made in, the first instance, ex parte and without any notice to the judgment debtor, and shall be an order to show cause only; and the order, if any government stock, funds, or annuities, standing in the name of the judgment debtor in his own right or in the name of any person in trust for him, is affected, shall restrain any transfer thereof in the meantime and until the order is made absolute or be discharged; and if any stock or shares of or in any company or corporation, standing in the name of the judgment debtor in his own right or in the name of any person in trust for him be affected by any such order shall in like manner restrain the company or corporation from permitting a transfer thereof.
Where, after notice of such an order to the person to be restrained thereby, or, in the case of a company or corporation, to any authorized agent thereof, and before the order is discharged or made absolute, the company, corporation, or person, permits any such transfer to be made, the company, corporation, or person, so permitting the transfer, is liable to the judgment creditor for the value or amount of the property so charged and so transferred, or such part thereof as may be sufficient to satisfy his judgment; and no disposition by the judgment debtor in the meantime is valid or effectual as against the judgment creditor.
Unless the judgment debtor, within a time to be mentioned in such an order, shows to a judge sufficient cause to the contrary, the order shall, after proof of notice thereof to the judgment debtor, his solicitor, or agent, be made absolute.
The judge, upon the application of the judgment debtor or any person interested, may discharge or vary such order.
Sections 87 and 88 extend to the interest of a judgment debtor, whether in possession, remainder, or reversion, and whether vested or contingent, as well in any such stock, funds, annuities, or shares, as also in the dividends, interest, or annual produce of any such stock, funds, annuities, or shares.
Where any such judgment debtor has any estate, right, title, or interest, vested or contingent, in possession, remainder, or reversion in or to stock, funds, annuities, or shares, standing in the name of the accountant of the court or in or to the dividends, interest, or annual produce thereof, the judge may make any order as to such stock, funds, annuities, or shares, or the interest, dividends, or annual produce thereof, in the same way as if they had been standing in the name of a trustee of the judgment debtor.
No order of a judge as to any stock, funds, annuities, or shares, standing in the name of the accountant, or as to the interest, dividends, or annual produce thereof, prevents an incorporated bank or a company or corporation from permitting any transfer of such stock, funds, annuities, or shares, or payment of the interest, dividends, or annual produce thereof, in such manner as the court may direct, or has a greater effect than if the debtor had charged the stock, funds, annuities, or shares, or the interest, dividends, or annual produce thereof, in favour of the judgment creditor with the amount of the sum mentioned in the order.
ALIMONY AND MAINTENANCE
A decree, order, or judgment for alimony or maintenance may be enforced in the same or the like manner including sale by order of the court pursuant to registration in a land titles office under The Judgments Act as any other decree, order or judgment of the court may be now enforced.
The court may appoint a receiver of any moneys due, owing, or payable, or to become due, owing, or payable to, or earned or to be earned by, the person against whom a decree, order, or judgment for alimony or maintenance has been made to the extent of the default and, in addition, to the extent of instalments due or to become due under the decree, order, or judgment.
Nothing in this section interferes with the court's discretionary control over arrears of alimony or maintenance or the power of the court to alter, vary, and rescind a decree, order, or judgment for alimony or maintenance or to deprive the person in whose favour the decree, order, or judgment has been made, of arrears in whole or in part, or to determine the extent to which payment of arrears of alimony or maintenance shall be enforced.
PROTECTION TO PERSONS ACTING UNDER JUDGMENT
The order or judgment of the court made in an action or upon an originating motion, special case, or in any other way permitted by the rules or any statute, effectually protects and indemnifies any person acting thereon in good faith.
Where a final judgment concerning land has been recovered, a purchaser of the land is not bound to inquire as to the validity or regularity of the judgment or of the proceedings had or taken in, or leading to, its recovery, and is not affected by notice of any invalidity or irregularity therein; and, notwithstanding any such invalidity or irregularity, the judgment shall, as far as the position, safety, and protection, of the purchaser are concerned, be deemed valid and effectual, and the remedy of the defendant is in damages only against the plaintiff, and the sale is not affected.
QUASHING CONVICTIONS, ETC.
Where it is desired to move to quash a conviction, order, warrant, or inquisition, the proceeding shall be by motion in the first instance instead of by certiorari, rule, or order nisi.
Notice of the motion shall be served at least six days before the return day thereof upon the magistrate, justice, or justices of the peace, making the conviction or order or issuing the warrant, or the provincial judge making the inquisition, and also upon the prosecutor or informant, if any, and upon the clerk of the peace if the proceedings have been returned to his office; and the notice shall specify the objections intended to be raised.
There shall be endorsed upon the notice of motion a copy of subsection (4) and a notice in the following form addressed to the provincial judge, magistrate, justice or justice of the peace, as the case may be:
You are hereby required forthwith after service hereof to return to the office of the registrar (or deputy registrar) at the Law Courts, the conviction (or as the case may be) herein referred to, together with the information and evidence, if any, and all things touching the matter, as full and entirely as they remain in your custody, together with this notice.
DATED at , this day of ,19 .
To (name of provincial judge, etc.) Provincial Judge (magistrate or as the case may be).
(Signature of solicitor for applicant) Solicitor for applicant.
Upon receiving a notice of motion to quash, the provincial judge, magistrate, justice or justice of the peace, as the case may be, shall forthwith return to the office of the registrar or deputy registrar as the case requires the conviction, order, warrant, or inquisition, and the information and evidence, if any, and all things touching the matter of the notice of motion served upon him or them with the certificate endorsed upon it in the following form:
Pursuant to the within notice I herewith return to this Honourable court the following papers and documents:
1. The conviction (or as the case may be).
2. The information and warrant issued thereon.
3. The evidence taken at the hearing.
4. (any other paper or documents touching the matter).
and I hereby certify to this Honourable court that I have above truly set forth ail the papers and documents in my custody or power relating to the matter set forth in this notice of motion.
DATED at , this day of , 19 .
(Signature of provincial judge, magistrate or as the case may be)
Provincial Judge (magistrate or as the case may be).
The certificate has the same effect as a return to a writ of certiorari or to an order under the rules.
The notice shall be returnable before a judge sitting in chambers.
The motion shall not be entertained unless
(a) the return day thereof is within six months after the conviction, order, warrant, or inquisition; and
(b) the applicant is shown to have entered into a recognizance with one or more sufficient sureties in the sum of $200. before a judge conditioned that the applicant will prosecute the application at his own costs and charges without any wilful or affected delay, and that he will pay to the person in whose favour the conviction, order or other proceeding, is affirmed, his full costs and charges to be taxed according to the course of the court in case the conviction, order or other proceedings, is affirmed or has paid into court the like sum as security that he will do so.
The recognizance, with an affidavit of its due execution, shall be filed with the registrar or a deputy registrar.
The judge has all the powers of the court in the like matters, and may order the production of papers and documents as he may deem necessary.
Except in the cases mentioned in section 96, all proceedings against any person who unlawfully claims or usurps, or is alleged unlawfully to claim or usurp, any office, franchise, or liberty, or who has forfeited or is alleged to have forfeited any franchise, by reason of non-user or misuser thereof, which have heretofore been instituted or taken by writ of quo warranto or by information in the nature of a writ of quo warranto, hereafter shall be instituted and taken, where the proceeding is by the Attorney-General, ex officio, by notice of motion calling on the person against whom the proceeding is taken to show cause why he unlawfully exercises or usurps such office, franchise or liberty.
Where the proceeding is at the instance of a relator it shall be taken in the name of Her Majesty on the relation of that person; and that person shall, before serving the notice of motion, give security for the due and effectual prosecution thereof in like manner as nearly as may be, and in the like amount as is, according to the practice of the court, required to be given on an application to quash a conviction or order or in such manner and amount as the court may direct.
The court may direct an issue for the trial of the matters in question on any such application, and may grant an injunction or a mandatory order in aid of the proceedings, or for the purpose of enforcing the judgment or order which shall be pronounced thereon.
Nothing in sections 93, 94, and 95, applies to or affects the proceedings in cases for which special provision is made by any other Act of the Legislature; but in all such cases the proceedings shall be instituted and taken in the manner provided by those Acts, and not otherwise.
A judgment creditor, in the case of a judgment for the payment of money, may, from time to time, in accordance with the rules of the court, examine the judgment debtor touching his estate and effects and his property or means and any disposition thereof, and the court may, in the manner prescribed by the rules, order the judgment debtor to pay the debt in instalments or within a time limited and in case of default the court may order the debtor to be committed to a common jail for any time not exceeding 12 months, or until he complies with the first mentioned order.
No order made by the court, or a judge thereof, by the consent of parties, or as to costs only which by law are left to the discretion of the court, is subject to any appeal, except by leave of the court or judge making the order.
Save as provided in section 98, every rule, order, verdict, judgment, decree, or decision, made, given, rendered, or pronounced, by the court or a judge thereof, may be set aside, varied, amended, or discharged, and every verdict of a jury may be set aside in whole or in part on appeal, upon notice, by The Court of Appeal.
Subject to the express provisions of any statute and of the rules, the costs of and incidental to all proceedings authorized to be taken in court or before a judge shall be in the discretion of the court or judge; and the court or judge has full power to determine by whom, and to what extent, the costs shall be paid.
Nothing herein deprives a trustee, mortgagee, or other person, of any right to costs out of a particular estate or fund.
Where an action or issue is tried with a jury, the costs shall follow the event unless the judge before whom the action or issue is tried in his discretion otherwise orders.
Costs of proceedings before judicial officers, unless otherwise disposed of, shall be, in their discretion, subject to 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 from 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.
RULES OF COURT
The judges of the court, or a majority of them present at any meeting held for that purpose, may at any time and from time to time 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 regulating practice in the court and procedures in matters before the court, not fully or sufficiently provided for in this or any other Act of the Legislature and for the purpose of providing for the management of the business and activities of the court and the administration of the court, and in particular for
(a) establishing divisions of the court for the orderly disposal of any class of actions, issues or matters brought before the court;
(b) regulating the sittings of the court or of any division thereof and the sittings of the judges in the court or in any division thereof;
(c) regulating the pleading, practice and procedure in the court or in any division thereof;
(d) allowing service out of Manitoba;
(e) prescribing and regulating the proceedings under any statute that confers jurisdiction upon the court or a judge and determining the division of the court in which the proceedings shall be brought;
(f) fixing the vacations;
(g) empowering the referee in chambers or any officer sitting for him to do such things and to transact any such business, and to exercise any such authority and jurisdiction, in respect of the same, as are now or may be hereafter done, transacted or exercised, by a judge of the court sitting in chambers or as shall be specified in the rules except in matters relating to
(i) the liberty of the subject,
(ii) appeals and applications in the nature of appeals,
(iii) proceedings under The Mental Health Act,
(iv) applications for advice by trustees, executors and administrators,
(v) matters affecting the custody of children, and
(vi) proceedings under section 51;
(h) providing a table or tariff of fees and allowances for services by barristers, solicitors and counsel in causes, actions and matters in the court or in any division thereof;
(i) prescribing fees payable to witnesses; and
(j) generally, for regulating any matters relating to the practice and procedure of the court or any division thereof, or to the duties of the officers of the court, or to the costs of proceedings in the court or in any division thereof, and every other matter deemed expedient for better attaining the ends of justice, advancing the remedies of suitors, and carrying into effect the provisions of this Act and all other Acts now or hereafter in force respecting the court.
Where any provisions in respect of practice or procedure are contained in any statute, rules may be made modifying such provisions to any extent that may be deemed necessary for adapting them to the general practice and usage of the court, unless that power is expressly excluded.
Any provisions relating to the payment, transfer, or deposit, into or in or out of the court of any money or property or to the dealing therewith shall, for the purposes of this section, be deemed to be provisions relating to practice and procedure.
Subject to this Act, the rules of practice and procedure and all forms, tariffs, and schedules, appended thereto at present in force are declared to have the same force and effect as if they were embodied in this Act.
All rules, and all amendments or additions to the rules, made by the judges by the powers conferred by this Act are regulations within the meaning of The Regulations Act and when filed under that Act have the same force and effect as if they were embodied in and formed a part of this Act
The jurisdiction of the court shall be exercised, so far as regards practice and procedure, in the manner provided for in this Act, and in the rules.
All practice and procedure inconsistent with this Act and the rules is hereby abolished; and the practice and procedure in all matters not provided for in this Act and the rules shall be regulated by analogy hereto.
Where a statute of Manitoba, or any law in force in the province, provides for proceedings being taken, or allows of proceedings being taken, in the court, such proceedings in all cases, when practicable, shall be taken according to the methods and forms provided for by this Act.
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.
Where an action in the court could have been brought either with or without the consent of all the parties thereto, in the Provincial Court (Family Division), any party to the action may, with the consent of all the other parties to the action, apply to a judge, at any time before the action has been set down for trial, to have the action transferred to the Provincial Court (Family Division) and the judge shall order the action to be transferred to and continued and proceeded with in the Provincial Court (Family Division).
Where an action is transferred to the Provincial Court (Family Division) under this section, it shall be in the same plight and condition as that in which it was at the time of transfer, and thereafter it shall be continued and proceeded with as if it had been commenced in the Provincial Court (Family Division).
Where under this section an action is transferred to the Provincial Court (Family Division), the Provincial Court (Family Division) shall receive the action, including any set-off or counterclaim, and all the pleadings and documents filed in connection therewith, and those pleadings and documents shall be deemed to be the pleadings and documents filed in the Provincial Court (Family Division).
Where an action in the Provincial Court (Family Division) could have been brought in the Court of Queen's Bench, any party to the action may apply to a judge at any time before the action has been set down for trial to have the action transferred to the Court of Queen's Bench, and the judge may order the action to be so transferred and thereupon the action and all pleadings and documents filed in connection therewith in the Provincial Court (Family Division) shall be transferred to and shall be continued and proceeded with in the Court of Queen's Bench.
Where an action is transferred to the Court of Queen's Bench under this section, the action shall be in the same plight and condition in the Court of Queen's Bench as that in which it was at the time of the transfer and thereafter it shall be continued and proceeded with as if it had been commenced in the Court of Queen's Bench.
Where an action is transferred to the Court of Queen's Bench under this section, the parties to the action are responsible for amending and may amend their pleadings in the Court of Queen's Bench to comply with the rules and practice of the Court of Queen's Bench, but the cost of amending the pleadings shall be paid by the party applying for the transfer.