Annotated Civil Appeal Rules


Updated as of December 15th, 2017

In these annotated rules, each rule is followed by a list of cases that may be relevant to the rule’s interpretation together with a brief summary of the decision’s significance.

The annotations only include decisions of the Court of Appeal since the coming into force of the Court of Appeal Rules.  Older decisions and decisions of other courts have not been included.

The annotations and summaries are a guide to facilitate research.  Relevant decisions may be missing, and irrelevant decisions may be included.  Summaries may be inaccurate and should not be taken to replace, add to, or affect the interpretation of the rules or cases.

1.   Citation
2.   Purpose
3.   Proportionality
4.   Practice notes
5.   Calculation of time
6.   Gap in the rules
7.   Definitions
8.   Notice of appeal
9.   Appeal involving a child
10.   Appeal involving a tribunal
11.   Cross-appeals
12.   Challenge to a previous decision of the Court
13.   More than one notice of appeal in a proceeding
14.   Extending or abridging time
15.   Failure to comply with a rule
16.   Failure to proceed with an appeal
17.   Deemed abandonment of an appeal
18.   Notice an appeal is being discontinued
19.   Setting a hearing date
20.   Prehearing conference and case management
21.   Appearing by videoconference or teleconference
22.   Assistance of non-solicitor
23.   Withdrawal or change of solicitor
24.   Limited purpose retainer of solicitor
25.   Recording court proceedings
26.   Forms and materials
27.   Copies provided by the Court
28.   Filing and serving documents
29.   Notice to the Attorney General
30.   Applications – procedure
31.   Applications heard by a single judge
32.   Application for directions or an order
33.   Leave to appeal where required by statute
34.   Appeal of a consent order – leave required
35.   Challenging an appeal in an uncompleted matter
36.   Striking out a notice of appeal or dismissing an appeal
37.   Additional evidence on appeal
38.   Application to intervene
39.   Appointment as a friend of the court
40.   Appointment of counsel
41.   Consent judgment
42.   Staying enforcement of an order under appeal
43.   Security for costs
44.   Exemption from the payment of fees and charges
45.   Contempt of court
46.   Transcript – obtaining and delivering to parties
47.   Transcript – filing
48.   Transcript – filing electronic version
49.   Transcript – alternatives
50.   Transcript – form
51.   Agreed statement of facts
52.   Appeal book
53.   Factum – contents
54.   Factum – legal and case authorities
55.   Factum – form
56.   Filing transcript, appeal book and factum
57.   Formal order
58.   Costs
59.   Correction of clerical mistakes
60.   Transitional
61.   Non-application
62.   Commencement

1. Citation
These rules apply to civil proceedings in the Court of Appeal and may be cited as the Court of Appeal Rules.

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2. Purpose
The purpose of these rules is to provide for the orderly and expeditious administration of justice in the Court.

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3. Proportionality
In applying these rules, the Court shall make orders and give directions that are proportionate to the importance and complexity of the issues.

Vokey v. Newfoundland and Labrador, 2017 NLCA 18, at para. 3:
“The Court has a responsibility and inherent jurisdiction to provide a process that is appropriate to the particular circumstances brought before it, with consideration being given to a process that is proportionate to the nature of the matter and designed to result in an expeditious and just resolution. To this end, the Court seeks to employ an efficient and orderly process that will facilitate access to justice.”
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4. Practice notes
(1) The Court may issue practice notes on any matter respecting appeals.
(2) A practice note shall be published once in the Gazette but does not constitute a regulation under the Statutes and Subordinate Legislation Act .

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5. Calculation of time
Unless otherwise provided, time under these rules shall be calculated on the basis that

(a) where the Court is closed on the day on which a thing is to be done, it may be done on the next day on which the Court is open;

(b) “within”, “not less than” or a reference to a number of days shall not include the day on which the thing is to be done; and

(c) where the time limit is less than 6 days, days on which the Court is closed shall not be counted.

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6. Gap in the rules
Where a procedural issue arises that is not covered by these rules, the Court may adopt and give directions regarding an appropriate procedure.

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7. Definitions
In these rules
(a) “appeal” means an appeal to the Court of Appeal and includes a reference made to the Court under a statute;

(b) “appellant” means a person who files a notice of appeal and includes a tribunal that states a case or brings a reference;

(c) “Chief Justice” means the Chief Justice of Newfoundland and Labrador;

(d) “Court” means the Court of Appeal, a panel of judges or a judge of that Court;

(e) “court appealed from” means a court, judge, or tribunal from which an appeal lies to the Court;

(f) “electronic version” means an electronic version in a format acceptable to the Court;

(g) “file” means to file and serve a document in accordance with rule 28;

(h) “judgment” means the disposition of a matter by the Court, including a decision of a judge not to recuse himself or herself, and in the case of a panel of judges, the disposition by a majority of those judges;

(i) “order appealed from” or “order under appeal” means

(i) the formal order settled by the court appealed from and filed after the decision has been given,

(ii) an order or decision of a tribunal,

(iii) an order or decision made in an uncompleted matter, and

(iv) any document accepted by a court or tribunal as having the same effect as a formal order;

(j) “registrar” means the clerk, officer or employee of the Court responsible for the operation of the registry of the Court who, in consultation with the Chief Justice, is designated by the Chief Executive Officer appointed under section 59.1 of the Judicature Act , and includes a person appointed by the registrar to fulfill the duties of the registrar in circumstances where the registrar is unavailable;

(k) “request” means a request in writing delivered to the Court;

(l) “respondent” means a person served with a notice of appeal or named as a respondent in an appeal or an application;

(m) “tribunal” means any person or body from which an appeal lies to the Court, including any board, commission, committee, minister, public official, or other public or governmental agency or authority, including the Lieutenant-Governor in Council, but not including a court or judge; and

(n) “uncompleted matter” means a matter where the issues between the parties have not been determined by a final decision or order in the court appealed from.

Steele v. Rendell, 2016 NLCA 70 – Application for representation of an individual by non-lawyer pursuant to rule 22(2)(a) may proceed ex parte pursuant to rule 30(4) where interests of other party are not prejudiced. Other party may apply for inter partes hearing (rule 30(5)). Old law continues to apply to ex parte applications. Application may also proceed in writing pursuant to 30(8) and may be treated as akin to an informal request (rule 7(k)). Old law of representation for parties no longer applies, as rule 22 is broader than old rules. Even if rule 22 prevents non-solicitors from representing parties, court may waive compliance pursuant to rule 15(1). Rule 22(2)(b) permits a McKenzie friend, while 22(2)(a) is broader. “Exceptional circumstances” do not mean permission will rarely or grudgingly be given and any circumstance which prevents a person from adequately representing themselves may be a disabling circumstance.
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8. Notice of appeal
(1) An appeal shall be commenced by filing a notice of appeal in Form 1.

(2) A notice of appeal shall be filed with the Court

(a) within 30 days after the order appealed from has been filed in the court appealed from; or

(b) in an uncompleted matter, within 10 days after the order appealed from has been filed in the court appealed from.

(3) Where the court appealed from does not provide for the filing of a document for purposes of subsection (2), the time set out in subsection (2) shall commence 7 days from the date when the order or decision appealed from is made.

(4) A notice of appeal shall

(a) specify the order and court appealed from, the date the order was filed or made, the file number on the order, and the neutral citation, if any, where there is a written decision;

(b) state the subject matter of the appeal by giving a brief summary of what the appeal is about and what the issues are;

(c) identify the portion of the order under appeal if only a portion is being appealed;

(d) state the relief, disposition or order requested;

(e) give the names, postal addresses, email addresses and telephone numbers of the appellant and the persons being served with the notice of appeal, or their solicitors;

(f) indicate if there is an access restriction or publication ban in effect;

(g) state the reason if the appellant is requesting that the appeal be expedited; and

(h) if applicable, state that the appeal involves the custody of, access to, protection of, support for or responsibility for a child.

(5) Where a party is not represented by a solicitor and for reasons of protection of a party or a child, there is a question with respect to providing the information set out in paragraph (4)(e) and in serving documents under rule 28, the party may

(a) provide an alternate name and address for service on the Form, and provide the information regarding the party to the Court in a separate envelope marked “Confidential”; or

(b) make a request for directions from the Chief Justice.

Thorne v. College of the North Atlantic, 2017 NLCA 30, discussed the new approach to notices of appeal at para. 24.

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9. Appeal involving a child
(1) Every notice of appeal, application or response to either that involves custody of, access to, protection of, support for or responsibility for a child shall have noted in the top left corner, between the name of the Court and the style of cause, the words “THIS MATTER INVOLVES A CHILD”.

(2) An appeal under subsection (1) shall be monitored by the registrar to ensure that the appeal proceeds as expeditiously as possible.

(3) On instruction from the Chief Justice, the registrar may, by written, oral or electronic notice to each party, specify a time by which any further step in the proceeding is required to be taken.

(4) Upon application or of its own motion, the Court may convene a hearing to give directions or make orders.

(5) Not less than 4 days before the hearing of an application or an appeal involving a child, a party may file a notice in Form 9 for the purpose of providing the Court and other parties with current information regarding any other court proceedings involving the child.

(6) Upon application or of its own motion, where an appeal involves a child, the panel hearing the appeal may permit or require a party, by affidavit, to provide current information regarding the child.

S.M. v J.B., 2016 NLCA 59, at paras. 5–6, outlines the operation of rule 9.

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10. Appeal involving a tribunal
(1) Subject to statutory requirements, these rules shall apply with the necessary changes to an order appealed from a tribunal.

(2) Other than where an appeal directly to the Court is authorized by statute, where the order under appeal involves an order or decision of a tribunal, notice of the appeal shall be served on the tribunal, and the tribunal may participate in the appeal to the extent permitted by the Court.

(3) A party in a proceeding before a tribunal who is not named as a party in the appeal may apply to the Court to be added as a party, and the Court may give such directions and orders as are appropriate.

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11. Cross-appeals
(1) A respondent to an appeal may make submissions by cross-appeal where the respondent

(a) seeks to appeal an order or portion of an order appealed from that is not appealed by the appellant;

(b) contends that the order appealed from should be varied or affirmed on grounds other than those given by the court appealed from; or

(c) contends that the respondent is entitled to other or different relief or disposition than given by the court appealed from.

(2) Where a respondent intends to make submissions under paragraph (1)(a) or (c), a notice of cross-appeal in Form 15 shall be filed within 30 days after the respondent receives a copy of the notice of appeal.

(3) Failure to file a notice of cross-appeal under subsection (2) shall not preclude a respondent from making submissions on the issues, but the omission may be grounds for an order as to costs.

(4) Submissions on a cross-appeal shall be included, under the title “Cross-Appeal”, in the respondent’s factum, placed after the submissions in response to the appeal or, if necessary, in a separate volume.

(5) Where a respondent files submissions on a cross-appeal, an appellant may file a reply factum within 30 days after receipt of the respondent’s factum.

(6) Where an appeal is discontinued or deemed abandoned, a respondent may

(a) file a notice of election to proceed with a cross-appeal in Form 16;

(b) apply to the Court for directions.

(7) Where the respondent does not file a notice of election to proceed with a cross-appeal within 30 days after receiving notice that the appeal has been discontinued or deemed abandoned, the issues on the cross-appeal shall be deemed to be abandoned without costs, unless the Court otherwise orders.

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12. Challenge to a previous decision of the Court
(1) Where a party intends to challenge a previous decision or legal principle stated by the Court, that party, when filing its factum, shall advise the Court and other parties in writing of that intention, and the Court may, of its own motion or upon application, give directions.

(2) Where an issue is raised under subsection (1), the Chief Justice may direct that the appeal shall be heard by a panel of 5 judges, and in that case, each party to the appeal shall file with the Court 6 copies of every document.

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13. More than one notice of appeal in a proceeding
Where more than one party in a proceeding in the court appealed from files a notice of appeal, the registrar, on the instruction of a judge, may direct that the appeals be consolidated or heard together or that one appeal shall be treated as a cross-appeal.

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14. Extending or abridging time
The Court may extend or abridge any time prescribed by these rules before or after the expiration of that time.

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15. Failure to comply with a rule
(1) The Court may waive compliance or relieve against non-compliance with these rules and may direct the procedure to be followed.

(2) A party who fails to comply with these rules may be subject to an order for costs.

Steele v. Rendell, 2016 NLCA 70 – Application for representation of an individual by non-lawyer pursuant to rule 22(2)(a) may proceed ex parte pursuant to rule 30(4) where interests of other party are not prejudiced. Other party may apply for inter partes hearing (rule 30(5)). Old law continues to apply to ex parte applications. Application may also proceed in writing pursuant to 30(8) and may be treated as akin to an informal request (rule 7(k)). Old law of representation for parties no longer applies, as rule 22 is broader than old rules. Even if rule 22 prevents non-solicitors from representing parties, court may waive compliance pursuant to rule 15(1). Rule 22(2)(b) permits a McKenzie friend, while 22(2)(a) is broader. “Exceptional circumstances” do not mean permission will rarely or grudgingly be given and any circumstance which prevents a person from adequately representing themselves may be a disabling circumstance.

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16. Failure to proceed with an appeal
(1) An appellant shall diligently carry forward the appeal in accordance with the principle of proportionality and shall perfect the appeal within the time periods prescribed by these rules.

(2) Where an appellant fails to carry forward the appeal in accordance with subsection (1), a respondent may apply to the Court for directions and the Court may give such directions or make such orders as may be appropriate, including an order striking out the notice of appeal.

(3) Where a respondent does not make an application under subsection (2) and 6 months have passed since the notice of appeal was filed, the Court may, of its own motion, give the parties 10 days notice that the Court will hold a status hearing for the purpose of giving directions or making orders.

(4) At the status hearing, the Court may

(a) order the appeal to be perfected by a specified date;

(b) adjourn the status hearing to a fixed date;

(c) strike out the notice of appeal; or

(d) make such other order as may be just.

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17. Deemed abandonment of an appeal
(1) Where an application or request to set a hearing date for an appeal has not been made within one year after the notice of appeal was filed, the registrar shall give the parties notice that subsections (2) and (6) shall apply.

(2) Upon receiving notice under subsection (1), the appellant may deliver a written explanation and proposed plan in Form 14 to the Court and to the other parties, and the appeal shall not be deemed abandoned.

(3) Upon application or of its own motion, the Court may make an order or give directions regarding a proposed plan.

(4) Upon application, the Court may adjourn the appeal indefinitely where the parties agree for good reason that the appeal should not be deemed abandoned but that, at the time, it is not practical to provide a proposed plan under subsection (2).

(5) Where an application or request to set a hearing date for an appeal has not been made within one year after the appeal was adjourned indefinitely, the registrar may give the parties notice under subsection (1) that subsections (2) and (6) shall apply but the date on which the notice of appeal was filed shall be replaced by the date on which the appeal was adjourned.

(6) If the appellant does not deliver an explanation and proposed plan under subsection (2) or apply for an indefinite adjournment under subsection (4) within 60 days after the notice under subsection (1) was sent, the appeal shall be deemed abandoned.

(7) When an appeal has been deemed abandoned, the respondent shall be entitled to costs unless the respondent waives the costs, in writing.

(8) When an appeal has been deemed abandoned, the registrar shall deliver notice to the parties, but inability to locate a party in order to deliver the notice shall not affect the deemed abandonment of the appeal.

(9) When an appeal has been deemed abandoned, upon application, the appeal may be reinstated upon such terms as the Court considers just.

(10) The terms under subsection (9) may include payment to a respondent of costs to date on a solicitor-and-client basis, which the Court may order to be paid personally by a named solicitor if the Court is satisfied that the solicitor is responsible for the failure of the appeal to proceed on a timely basis.

Atlantic Lottery Corporation Inc. – Societe de Loteries de l’Alantique v. Babstock, 2016 NLCA 64 – Even if appeal deemed abandoned before new Rules came into force, if reinstatement application is made and heard after new Rules come into force, new Rules (17(9)) apply (60(1)). Court may give directions about which Rules apply if application is heard before the new Rules come into force, but the reasons are not released until after the new Rules come into force (60(2)). Parties had agreement not to schedule appeal hearing until after a decision on a certification of a class action was released by the Trial Division. Parties presented plan for appeal. Appeal reinstated.

Ellis v. Pelley Estate, 2016 NLCA 77 – Even if appeal deemed abandoned before new Rules came into force, if reinstatement application is made and heard after new Rules come into force, new Rules (17(9)) apply (60(1)). Old law on reinstatement, especially Fahey v. Newfoundland (The Law Society of), 2003 NLCA 8, 221 Nfld. & P.E.I.R. 79, continues to apply under Rule 17(9).

Winters v. Nor-Lab Limited, 2017 NLCA 7 – reinstatement refused where no merit to the appeal

Wiscombe v. Wiscombe, 2017 NLCA 8 – previously abandoned appeal from order for increased spousal supported reinstated. Insufficient prejudice to respondent to deny reinstatement. Fact that registry sent out notice of abandonment one day before new rules came into force is an exceptional circumstance favouring reinstatement.

Community Mental Health Initiative v. Summit Lounge Ltd, 2017 NLCA 58- Application for reconsideration of order reinstating appeal dismissed. After balancing the factors outlined in Ellis v. Pelley Estate, 2016 NLCA 77, it was decided that the appeal was properly reinstated.

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18. Notice an appeal is being discontinued
(1) An appellant may discontinue an appeal by filing a notice in Form 13 stating that the appellant has discontinued the appeal, whereupon the appeal shall be at an end.

(2) Where an appeal is discontinued, the respondent shall be entitled to costs unless the respondent waives the costs, in writing, on the notice.

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19. Setting a hearing date
(1) The registrar may, upon the request of a party in Form 6 and in consultation with the parties and the Chief Justice, set a time for the hearing of an appeal or an application for leave to appeal.

(2) Upon application in Form 7 or of its own motion, the Court may set a time for the hearing of an appeal or an application for leave to appeal.

(3) After an appellant’s factum has been filed and another party has failed to file a factum within the time prescribed by these rules, any party that has filed a factum may apply to set a time for hearing of the appeal.

(4) Upon application under subsection (3), the Court may set a time for hearing of the appeal, give directions and order costs as it considers appropriate.

(5) The Court may proceed in the absence of a party where the party fails to attend a hearing after having received notice.

(6) W here a party fails to attend a hearing due to accident, mistake, insufficient notice or for other good reason, that party may apply to have an order or directions arising from the hearing varied or set aside on such terms as may be appropriate.

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20. Prehearing conference and case management
(1) The Court may at any time, of its own motion or upon application, direct a prehearing conference for the purpose of

(a) simplifying or isolating issues on the appeal;

(b) canvassing the possibility of a settlement or mediation hearing; or

(c) addressing any other matter that may expedite the appeal.

(2) The Court may at any time, of its own motion or upon application, direct the case management of an appeal for the purpose of

(a) achieving the efficient use of court resources and promoting access to the Court in a timely and cost effective manner;

(b) providing information and resolving questions of procedure, including directions regarding steps to be taken to perfect the appeal;

(c) giving directions regarding documents to be filed; and

(d) setting dates for the filing of documents and hearing of the appeal.

(3) A judge conducting a prehearing conference or case management may make an order consented to by the parties, other than an order determining the appeal, and may set the time or modify the time set for the hearing of the appeal.

(4) Discussions at a prehearing conference or during case management are without prejudice and shall not be referred to at the hearing of the appeal.

(5) The judge conducting a prehearing conference or case management shall not for that reason be disqualified from hearing the appeal unless the judge was involved in settlement or mediation discussions related to the appeal.

(6) Except by consent of the parties, a judge who was involved in settlement or mediation discussions related to the appeal shall not hear the appeal or disclose to any member of the appeal panel positions taken or admissions or concessions made by the parties or their counsel at those discussions.

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21. Appearing by videoconference or teleconference
(1) A party wishing to be heard by videoconference or teleconference on an appeal, on an application, at a prehearing conference or for case management may make a request for that purpose, and the Court may grant the request and give directions as required.

(2) For the hearing of an appeal, a party appearing by videoconference or teleconference

(a) shall, where possible, attend for the videoconference at a courthouse;

(b) if a courthouse is not practically available, may attend for the videoconference in a place other than a courthouse; and

(c) if videoconferencing is not practically available, may be heard by teleconference.

(3) For the hearing of an application, subsection (2) shall apply, except that the Court may direct, based on the nature of the application, that the application shall be heard by teleconference despite the availability of a videoconference.

(4) Under this rule, a prehearing conference or case management shall be held by teleconference unless a videoconference is directed by the Court.

(5) A party being heard by videoconference or teleconference shall ensure that the place where the videoconferencing or teleconferencing is held is free from distractions and noise.

(6) Unless otherwise ordered by the Court, costs associated with appearing by videoconference or teleconference shall be the responsibility of the party requesting it, and the costs may be recoverable as costs of the appeal or application.

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22. Assistance of non-solicitor
(1) A party who is a natural person may be represented by a solicitor or by himself or herself, or by a person acting for the party as trustee or in a representative capacity.

(2) Upon application of a party, for the purpose of facilitating access to justice, the Court may, in exceptional circumstances and subject to such conditions as may be appropriate, permit a person who is not a solicitor

(a) to make submissions on behalf of a party who, by reason of physical or mental disability or other disabling circumstance, is not able adequately to make submissions on his or her own behalf;

(b) to sit with a party in the Court for the purpose of providing assistance, advice and support during the proceeding.

(3) A person granted permission under subsection (2) shall deliver to the Court a completed Form 17, undertaking in writing

(a) not to receive directly or indirectly any compensation for the assistance provided, except reimbursement for expenses actually incurred, unless the Court otherwise permits;

(b) that his or her interests are not in conflict with the interests of the applicant under subsection (2); and

(c) to observe and be bound by the obligations that apply to an officer of the Court particularly as set out in Form 17.

Steele v. Rendell, 2016 NLCA 70 – Application for representation of an individual by non-lawyer pursuant to rule 22(2)(a) may proceed ex parte pursuant to rule 30(4) where interests of other party are not prejudiced. Other party may apply for inter partes hearing (rule 30(5)). Old law continues to apply to ex parte applications. Application may also proceed in writing pursuant to 30(8) and may be treated as akin to an informal request (rule 7(k)). Old law of representation for parties no longer applies, as rule 22 is broader than old rules. Even if rule 22 prevents non-solicitors from representing parties, court may waive compliance pursuant to rule 15(1). Rule 22(2)(b) permits a McKenzie friend, while 22(2)(a) is broader. “Exceptional circumstances” do not mean permission will rarely or grudgingly be given and any circumstance which prevents a person from adequately representing themselves may be a disabling circumstance.

Steele v Rendell, 2017 NLCA 36-Respondent represented by litigation representative who had undertaken pursuant to rule 22(3)(a) not to receive any compensation for providing assistance. Respondent did not do any of the appeal work herself. Therefore the respondent could not recover costs for expenditure of time and effort. However, “there is more to an award of costs than some degree of reimbursement for time and effort.” Respondent awarded lump sum costs of $500 over and above reimbursement of expenses to “highlight the deterrence of unmeritorious litigation”.

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23. Withdrawal or change of solicitor
(1) A party may change his or her solicitor in proceedings in the Court by filing a notice of change of solicitor in Form 12.

(2) A solicitor who has taken any step on behalf of a party in proceedings in the Court shall be and remain the solicitor of record unless a notice of change of solicitor has been filed under subsection (1) or, upon application, the Court grants the solicitor leave to cease acting for the party in the proceedings.

(3) Where leave is granted under subsection (2), the party shall without delay notify the Court and the other parties, in writing,

(a) of a new address for service; and

(b) whether the party has or intends to engage a new solicitor or intends to act on his or her own behalf.

(4) Rule 8(5) regarding the protection of information identifying a party’s addresses and phone number shall apply.

(5) At any time during the proceedings, if a party who was acting on his or her own behalf engages a solicitor, that solicitor shall without delay notify the Court and the other parties, in writing, of the address for service.

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24. Limited purpose retainer of solicitor
A party may retain a solicitor for a limited purpose and the solicitor shall file a notice in Form 11 identifying the nature and scope of the retainer.

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25. Recording court proceedings
Except as otherwise provided by law or in a practice note, a person shall not record proceedings in the Court by any visual or audio recording device, without leave of the Court.

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26. Forms and materials
(1) Where applicable, the forms attached to and forming part of these rules shall be used with such changes as the circumstances require.

(2) All written material relied on in a proceeding shall be legible and printed on good quality paper.

(3) The registrar may refuse to receive for filing any material that does not substantially comply with these rules and the practice notes.

(4) Where a party files material that fails to comply substantially with these rules, the Court may make an order as to costs that it considers appropriate.

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27. Copies provided by the Court
Copies of documents provided by the Court may be provided by electronic means.

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28. Filing and serving documents
(1) Unless otherwise prescribed in these rules or directed or ordered by the Court, a party shall file with the Court 4 copies of every document and without delay shall serve one copy of the document on each party.

(2) Where a document has been prepared for purposes of an appeal, one of the 4 copies filed with the Court shall be the original.

(3) In the case of an application, unless otherwise prescribed in these rules or directed or ordered by the Court, a party shall file with the Court 2 copies of every document and without delay shall serve one copy of the document on each party.

(4) Where a document has been prepared for purposes of an application, one of the 2 copies filed with the Court shall be the original.

(5) An address for service used in the court appealed from shall be used for purposes of serving a document under subsections (1) or (3) unless a party notifies the Court and other parties of a change in the address for service.

(6) A party shall serve a document on another party by delivering a copy to the address for service.

(7) A solicitor may accept service of a document on behalf of a client.

(8) Proof that a document has been served may be established by

(a) the signature of the recipient, with the date, acknowledging acceptance of service on the document or a copy;

(b) an affidavit in Form 3 by the person who delivered the document;

(c) an “Acknowledgment of Receipt” in Form 4 where the document has been delivered by mail or courier; or

(d) a confirmation of delivery obtained from the carrier where the document was delivered by registered mail or by courier.

(9) Where a party files or serves a document by fax or email in order to meet a limitation period, the document shall be treated as filed on the day it was received, but the party shall without delay file and serve printed copies of the document.

D.M. v. Newfoundland and Labrador (Children and Youth Services), 2017 NLCA 55 – Rules do not expressly require personal service. Key question in any case is whether fair and reasonable steps have been taken to bring the requirement for appearance in court, and the nature of the proceeding, to the attention of the party. Even where personal service or its knowledge-imparting equivalent is indicated, exceptions must be recognized to ensure that the court’s process is not stultified.  Accordingly, substituted service is sometimes permitted even if it does not have the effect of actually bringing the matter to the other party’s attention

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29. Notice to the Attorney General
(1) With or without an application by a party, the registrar, on the instructions of the Chief Justice, may direct a party to give notice of an appeal or an application to the Attorney General of the Province in Form 10, and the Attorney General shall have the right to be heard and to participate in the proceeding.

(2) The notice shall include an appropriate notice period.

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30. Applications – procedure
(1) An application shall be in Form 2 and shall include

(a) a concise statement of the relevant facts and the issues to be determined in the application;

(b) the directions or order the applicant is requesting from the Court;

(c) any affidavit necessary to support or provide the foundation for the application;

(d) any document relevant to hearing of the application; and

(e) written submissions and authorities where the nature of the application warrants.

(2) Subject to direction of the Court,

(a) an application shall be filed not less than 4 days prior to the time set for hearing the application; and

(b) a party responding to an application shall file any affidavit, document or written submissions and authorities on which that party relies not less than 2 days prior to the time set for hearing the application,

but

(c) where the materials in paragraphs (1)(d) or (e) cannot practically be filed with the application, they may be filed within 15 days after the application is filed; and

(d) in that case, the respondent may file the materials in paragraph (2)(b) within 15 days after receipt of the materials in paragraph (2)(c); and

(e) the application shall be heard not less than 2 days after the materials in paragraph (2)(d) have been filed.

(3) Where warranted, the materials under subsections (1) and (2) shall be indexed, tabbed and bound.

(4) Where authorized by an order or direction of the Court, a statute, or a rule, an application may be made without notice to other parties.

(5) Where an application is made without notice to other parties, the Court may vary or set aside an order or directions made in that proceeding on such terms as may be appropriate.

(6) A party, in writing, may waive notice of the application or may give consent to the order sought by the applicant.

(7) The Court shall set dates for the hearing of applications in each month, but an application may be set to be heard at another time where necessary or appropriate.

(8) Upon the request of a party, the Court may decide an application on the basis of the documents that have been filed and the written submissions, provided that the other parties indicate in writing that they agree to the request.

Steele v. Rendell, 2016 NLCA 70 – Application for representation of an individual by non-lawyer pursuant to rule 22(2)(a) may proceed ex parte pursuant to rule 30(4) where interests of other party are not prejudiced. Other party may apply for inter partes hearing (rule 30(5)). Old law continues to apply to ex parte applications. Application may also proceed in writing pursuant to 30(8) and may be treated as akin to an informal request (rule 7(k)). Old law of representation for parties no longer applies, as rule 22 is broader than old rules. Even if rule 22 prevents non-solicitors from representing parties, court may waive compliance pursuant to rule 15(1). Rule 22(2)(b) permits a McKenzie friend, while 22(2)(a) is broader. “Exceptional circumstances” do not mean permission will rarely or grudgingly be given and any circumstance which prevents a person from adequately representing themselves may be a disabling circumstance.

Butler v. Snelgrove, 2017 NLCA 3 – Court cannot transfer appeals to be heard by another court of appeal under application under Rule 30

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31. Applications heard by a single judge
(1) An application that is incidental to but does not result in the final determination of an appeal may be heard and disposed of by a single judge.

(2) Where an application is heard and disposed of by a single judge, the matter may, with leave of the Chief Justice, be reheard by a panel of the Court.

(3) A request for a rehearing under subsection (2) shall be made within 15 days after the party receives the judgment under subsection (1).

Young v. Noble, 2016 NLCA 58 – The law developed under old rule 57.31(4) of the Rules of the Supreme Court, 1986, continues to be relevant to the application on new rule 31(2). On a reconsideration application heard after the new Rules come into force pertaining to a decision made pursuant to the old Rules, the Chief Justice must nevertheless consider whether there is anything to indicate that in making the decision of which reconsideration is sought, the single judge, applying the law as it stood then, may not have been correct.

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32. Application for directions or an order
A party may make an application to the Court for the purpose of obtaining directions or an order.

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33. Leave to appeal where required by statute
(1) Where a statute requires leave to appeal, the appellant shall file with the notice of appeal, an application for leave to appeal.

(2) An application for leave to appeal under subsection (1) shall be heard separately from the appeal unless, upon application or of its own motion, the Court orders that leave to appeal be heard at the same time as the appeal.

(3) If the application for leave to appeal is to be heard separately from the appeal,

(a) the applicant shall, within 10 days after filing the application, file an application record, tabbed and bound, containing

(i) an index,

(ii) a copy of the application and the notice of appeal,

(iii) a copy of the order sought to be appealed and the written reasons, if any, and

(iv) any other document relevant to the application for leave, and

within 30 days after filing the application for leave to appeal, shall file written submissions and authorities in support of the application, indexed, tabbed and bound; and

(b) within 30 days after receiving the applicant’s written submissions under paragraph (a), a respondent shall file written submissions and authorities indexed, tabbed and bound, in response to the application.

(4) If the application for leave to appeal and the appeal are to be heard at the same time, subsection (3) shall not apply, and the applicant and a respondent shall

(a) comply with the rules regarding an appeal book and factum and, where relevant, a transcript; and>

(b) include written submissions on the leave to appeal application in the appeal factum.

Cheeseman v. Coles, 2017 NLCA 19- Applicant seeking leave to appeal an order of a Provincial Court judge under section 12.1 of the Family Violence Protection Act refusing to vary or set aside an ex parte emergency protection order. First time in which section 12.1 of the FVP Act was considered by the Court.  Approach to determining leave under section 12.1 of the  FVP Act  is:

(i) whether it appears that the issue on appeal is one of law or jurisdiction; and, if so,

(ii) whether the appellant can show that either :

he or she has a reasonably arguable case for success on the appeal; or

the issue of general importance to the administration of justice.

Thorne v. College of the North Atlantic, 2017 NLCA 30, at para. 10: “[I]n the interests of ensuring the most effective and cost-effective procedure, careful consideration should be given to whether the leave application should be heard separately from or at the same time as the appeal”. See also paragraphs 11–17 on the factors to be considered in granting leave.

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34. Appeal of a consent order – leave required
(1) Where the order under appeal is a consent order, leave to appeal is required.

(2) An application for leave to appeal shall be filed with the notice of appeal.

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35. Challenging an appeal in an uncompleted matter
(1) Where an appeal is commenced in an uncompleted matter, a party may apply to have the notice of appeal struck on the basis that the appeal should not proceed until the matter has been completed because

(a) prejudice to a party may result if the appeal is heard before the matter is completed in the court appealed from;

(b) hearing the appeal before the matter is completed in the court appealed from would result in delay, inconvenience or an inefficient use of judicial resources; or

(c) there is good reason for delaying an appeal until the matter has been completed.

(2) Striking a notice of appeal under this rule does not prejudice the right of the appellant to include the same issues in an appeal when the matter has been completed in the court appealed from.

S.M. v J.B., 2016 NLCA 59, at paras. 3–4, outlines that rule 35 applies to appeals where leave is no longer necessary.

Young v. Noble, 2016 NLCA 58, outlines the policies underlying the rule 35 at paras. 17–20 and in footnote 2.

Tizzard v. Tizzard, 2017 NLCA 51- Application for extension of time denied. Justice Hoegg stated at paargraph12 “Even if Mr. Tizzard had filed his appeal on time, these circumstances might be good reason for delaying it until the litigation had been completed (Rule 35(1)(c)).”

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36. Striking out a notice of appeal or dismissing an appeal
(1) A party to an appeal may apply at any time before or at the hearing of the appeal for an order

(a) striking out the notice of appeal; or

(b) dismissing the appeal

on the grounds that

(c) no appeal lies to the Court;

(d) the appeal is frivolous, vexatious or without merit;

(e) the appellant has unduly delayed the preparation and perfection of the appeal; or

(f) the appellant has failed to apply to have the appeal set down for hearing.

(2) An application to dismiss an appeal shall be heard and determined by a panel of not fewer than 3 judges sitting together.

(3) A notice of appeal may be struck out by a single judge, and where a notice of appeal has been struck out, the appellant may apply within 6 months to have the notice reinstated for good reason.

Pearce v. Anderson, 2017 NLCA 44. Application for dismissal of appeal granted. Law respecting an application for dismissal of appeal under former rules as set out in Walsh v. Johnson, 2010 NLCA 6, 293 Nfld. & P.E.I. R. 101 applied. Appeal had no arguable merit and it was “plain and obvious” it had no chance of success.

D.M. v. Newfoundland and Labrador (Children and Youth Services), 2017 NLCA 55- Notice of Appeal struck out. No justification for failure to proceed to perfect the appeal or at least contact the court with an explanation for the delay and a request for further time and there was lack of any apparent merit in the stated grounds of appeal.

Cabot v. The Atlantic Canada Opportunities Agency, 2017 NLCA 56- Application to strike notice of appeal granted. Failure to take steps to proceed with appeal constituted undue delay.

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37. Additional evidence on appeal
(1) Upon application, the panel hearing the appeal may permit additional evidence for purposes of the appeal.

(2) The application shall be accompanied by an affidavit setting out

(a) the general nature of the additional evidence sought to be introduced;

(b) the way in which the additional evidence satisfies the criteria set out in subsection (3); and

(c) why the additional evidence was not introduced in the court appealed from.

(3) In determining the application, the Court shall consider

(a) whether, by due diligence, the evidence could have been brought in the court appealed from;

(b) the relevance of the evidence in the sense that it bears upon a decisive or potentially decisive issue in the appeal;

(c) the credibility of the evidence;

(d) whether the evidence, if believed, could reasonably have affected the result; and

(e) any other relevant factor.

(4) The evidence shall be taken, subject to cross-examination as may be appropriate, by oral examination before the Court or by affidavit or deposition or in such manner as the Court directs.

(5) The Court may, in the presence of the parties or their solicitors, inspect or view any place, property or thing where the inspection or view may facilitate determination of the appeal.

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38. Application to intervene
(1) A person who did not participate in the court appealed from may apply to be added as an intervenor for purposes of the appeal.

(2) The application shall state the intervenor’s interest in the appeal, explain the failure to apply to intervene in the court appealed from, and indicate the position the intervenor intends to take on the appeal.

(3) In addition to the factors set out in subsection (2), the Court may consider any relevant factors, including whether intervention would delay or prejudice adjudication of the rights of the parties and whether the record of the court appealed from is sufficient for purposes of the intervention.

(4) The Court may define or limit the scope of participation by an intervenor in an appeal.

Atlantic Lottery Corporation Inc.- Societé de Loteries de l’Atlantique v. Babstock, 2016 NLCA 72 – Third parties added in lower court proceedings after decision appealed from was made added as intervenors pursuant to rule 38

Weir’s Construction Limited v. Warford, 2017 NLCA 1 – Rule 38 applies to appellate proceedings only. Rule 38 is broader than the former rule. A proposed intervenor’s interest in the appeal may be established by showing that 1) their legal rights will be directly affected or 2) by showing a broader public interest. Intervention will not be permitted solely to influence the law in another matter to which proposed intervenor is a party so as to advance proposed intervenor’s financial and legal interests, but has previously been permitted where a matter concerned administering legislation in a workable and effective manner. Emphasis is not on nature of interest, but intervenor’s potential contribution. There is a less rigid approach to intervention in public law issues, but the relevant factors in Rule 38 must still be weighed.

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39. Appointment as a friend of the court
(1) Upon application or of its own motion, the Court may appoint a solicitor to make submissions on an appeal as a friend of the court where the Court considers that such an appointment is necessary or appropriate in the circumstances.

(2) Notice in Form 10 of a proceeding under subsection (1) shall be given to the Attorney General of the Province not less than 15 days before the proceeding is set to be heard, and the Attorney General shall have the right to be heard and to participate in that proceeding.

(3) After considering any submissions of the parties, an applicant and the Attorney General of the Province, the Court may make an order under subsection (1) on terms it considers appropriate.

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40. Appointment of counsel
(1) Where, by virtue of a legal rule or principle, appointment of counsel may be necessary or appropriate, an application may be made in Form 19 with a supporting affidavit as provided in the Form.

(2) Factors the Court may consider in an application under subsection (1) include:

(a) the complexity of the legal issues in the appeal;

(b) the potential effect of the appeal on the development of the law;

(c) the ability of the applicant to provide written and oral submissions;

(d) the availability of legal aid under a provincial plan providing legal aid or similar services;

(e) whether the applicant has requested the assistance of a solicitor who would agree to provide assistance without financial compensation, including for a limited purpose as authorized under rule 24; and

(f) financial hardship the applicant would suffer if required to pay for a solicitor to provide assistance, including for a limited purpose as authorized under rule 24.

(3) Notice in Form 10 of an application under subsection (1) shall be given to the Attorney General of the Province not less than 15 days before the application is set to be heard, and the Attorney General shall have the right to be heard and to participate in the application.

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41. Consent judgment
Where the parties agree in writing that the judgment or order of the court appealed from should be reversed or varied and they agree on the order that should be made, the appellant may apply to have that order confirmed by the Court.

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42. Staying enforcement of an order under appeal
(1) Filing a notice of appeal shall not operate to stay enforcement of the order under appeal.

(2) Upon application, the Court may stay the enforcement of an order under appeal pending disposition of the appeal, provided that an application to stay the order under appeal has not been made in the Supreme Court, Trial Division.

(3) The Court’s decision granting or refusing to stay the enforcement of the order under appeal may be reviewed upon further application by a party based on a change in circumstances.

(4) An order made by a judge of the Supreme Court, Trial Division granting or refusing to stay the enforcement of an order under appeal may be appealed to the Court only with leave.

(5) The stay of an order for the payment of money shall not prevent interest from accruing.

Weir’s Construction Limited v. Warford Estate, 2016 NLCA 65- New Rules apply when appeal filed before new Rules are in force, but application for stay filed after (60(1)). Test for stay pending appeal remains unchanged by rule 42(2).

Churchill v. Unifund Assurance Company, 2017 NLCA 4 – stay pending outcome of leave application to SCC granted

Hynes v. Wellon, 2017 NLCA 5 – stay of interim relocation order granted pending appeal

Rees v. Fong, 2017 NLCA 43- Stay of “shotgun buyout arrangement” order in oppression application pending appeal dismissed

Taylor v. Braund, 2017 NLCA 52 – Application for stay of child support variation order pending appeal dismissed.

Ring v. Walsh, 2017 NLCA 53-Application for stay pending appeal of interim order directing where a child is to attend school dismissed. Test of irreparable harm not met and stay would result in uncertainty.

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43. Security for costs
(1) Security for costs shall not be required in an appeal unless, upon application, by reason of special circumstances, security is ordered by the Court.

(2) Unless the Court otherwise orders, an appellant who fails to give security for costs as ordered shall be deemed to have abandoned the appeal and the respondent is entitled to costs.

Coast to Coast Contractors Inc. v. Millbrook Development Company Inc., 2017 NLCA 29 – Application for an order for security for costs by reason of special circumstances under rule 43. The application was made approximately two months before the hearing of the appeal. Court found that special circumstances were not demonstrated and dismissed the application. The lateness of the steps taken in seeking an order for security for costs was an issue; such applications generally would be made after a notice of appeal is filed but before other appellate costs are incurred.

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44. Exemption from the payment of fees and charges
(1) In this rule, “fees” and “charges” mean fees and charges under the Supreme Court Fees Regulations .

(2) A person whose ability to commence or proceed with an appeal, or a party whose ability to participate in the appeal, is impaired for financial reasons may apply for an exemption from or suspension of the payment of all or a portion of the fees and charges which may be payable by that person or party.

(3) The application shall be in Form 18 with a supporting affidavit as provided in the Form setting out the foundation for the application.

(4) Unless the Court otherwise orders, documents filed for purposes of this rule shall be restricted to that use.

(5) No court fees shall be payable to make an application under subsection (2), and the application may be made without notice to other parties to the appeal.

(6) Factors the Court may consider in assessing the application include

(a) undue hardship that would result from the payment of fees and charges or a portion thereof;

(b) whether the applicant is in receipt of social assistance;

(c) steps taken by the applicant to arrange his or her finances, making reasonable sacrifices, to enable payment of all or a portion of the fees and charges payable for the appeal;

(d) whether the applicant applied for and was refused legal aid under a provincial plan providing legal aid or similar services;

(e) whether the appeal is frivolous or vexatious in the sense that there is no arguable basis or sufficient merit for the appeal; and

(f) whether the appeal is brought for a public purpose and the applicant has standing to pursue the appeal.

(7) The Court may make an order exempting or suspending the payment of fees and charges based on the written documentation without a hearing.

(8) Where the circumstances warrant, the Court may order that court services be used to provide the portion of the transcript required by the rules and copies of materials, and the Court may exempt the applicant from or suspend the payment of all or a portion of the associated fees and charges.

(9) A person who is not a party to an appeal may apply for an exemption from the payment of all or a portion of the fees and charges to obtain a copy of a court document where the payment would prevent the applicant from pursuing studies or conducting research.

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45. Contempt of court
Upon application or of its own motion, the Court may, by order, exercise its power to punish for contempt of court.

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46. Transcript – obtaining and delivering to parties
(1) In these rules,

(a) “transcript” means a printed transcript of the audio recording of the proceedings in the court appealed from but does not include

(i) a party’s submissions to the court appealed from unless those submissions are necessary to enable an issue raised on appeal or cross-appeal to be determined; and

(ii) a decision of the court appealed from where a printed copy of that decision has been issued; and

(b) “appellant” means the first appellant where there is more than one appellant, as required by the context.

(2) Upon filing a notice of appeal, without delay, the appellant shall obtain a copy of the audio recording from the court appealed from and shall deliver a copy to each party.

(3) The appellant shall, without delay

(a) arrange for preparation of a transcript of the portion of the audio recording necessary to prepare the factum and to enable the issues on appeal to be determined; and

(b) advise each party in writing what arrangement under paragraph (a) has been made, indicate what portion of the audio recording is being requested and specify the date when the transcript is expected to be completed.

(4) If the appellant fails to comply with subsection (2) or (3), another party may make an application to the Court for directions, and the Court may give such directions and make such order as to costs as may be appropriate.

(5) If an appellant indicates under subsection (3) that a transcript of only a portion of the audio recording is being requested and another party is satisfied that the transcript of an additional portion of the audio recording is necessary, that party shall proceed in accordance with subsection (3) with the necessary changes.

(6) A party, upon receipt of a transcript that was requested by that party, shall without delay deliver one printed copy and one electronic version of the transcript to the other parties to the appeal.

(7) A party disputing the accuracy of a transcript may make an application to the Court for directions.

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47. Transcript – filing
(1) An appellant shall not file the transcript in its entirety unless the whole of the transcript is necessary to enable the issues on appeal to be determined.

(2) In accordance with rule 56, together with the factum and the appeal book, the appellant shall file with the Court

(a) 4 copies of the portion of the transcript that is necessary to enable the issues on appeal to be determined; and

(b) a certificate in Form 5

(i) stating that the appellant is satisfied that the portions of the transcript being filed are necessary to enable the issues on appeal to be determined; or

(ii) if the appellant is satisfied, upon careful review, that the whole of the transcript is necessary to enable the issues on appeal to be determined, stating, with particulars, the reasons for drawing that conclusion.

(3) Where there is more than one appellant, and an appellant other than the first appellant is satisfied that a portion of the transcript has not been filed that is necessary to enable the issues on appeal to be determined, that appellant may file additional portions of the transcript, and the requirements of subsection (2) shall apply with the necessary changes.

(4) Where a respondent is satisfied that an appellant has not filed a portion of the transcript that is necessary to enable the issues on appeal or cross-appeal to be determined, the respondent may file additional portions of the transcript, and the requirements of subsection (2) shall apply with the necessary changes.

(5) Not less than 5 days before the hearing of the appeal, additional portions of the transcript may be filed where a party determines it to be necessary to enable the issues on appeal or cross-appeal to be determined, and the requirements of subsection (2) shall apply with the necessary changes.

(6) The Court may at any time, upon application or of its own motion, order the filing of all or a portion of the transcript.

(7) Where a party fails to comply with this rule, the Court may make an order as to costs that it considers appropriate.

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48. Transcript – filing electronic version
In addition to the portion of the transcript required to be filed under rule 47, the appellant shall file with the Court

(a) where a transcript of the entire proceedings has been prepared, 4 electronic versions of the transcript; or

(b) where a transcript of the entire proceedings has not been prepared,

(i) 4 electronic versions of the transcript that has been prepared, and

(ii) 4 copies of the audio recording of the proceedings in the court appealed from.

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49. Transcript – alternatives
(1) A party may apply to the Court for an order and directions to permit the use of an electronic version rather than a printed copy of the transcript.

(2) Upon application, or of its own motion, the Court may at any time dispense with the preparation and filing of a transcript and order that the appeal proceed using an audio recording of the proceedings in the court appealed from, and the Court may give such directions as may be appropriate.

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50. Transcript – form
(1) A transcript shall be prepared in accordance with the Recording of Evidence Act and the Transcript Standards Manual of the Court Reporters’ Office of the Supreme Court, Trial Division.

(2) Where possible a key word index shall be included at the end of the transcript.

(3) The cover used to bind the transcript shall be grey.

(4) The transcript may be printed on double-sided pages with 4 pages of the written transcript on a single page, provided that the print is sufficiently large to be legible.

(5) Where the portion of the transcript considered to be necessary to enable the issues on appeal or cross-appeal to be determined is voluminous, a party may provide, or the Court may require, a book of excerpts where that would be convenient for presentation of submissions.

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51. Agreed statement of facts
Instead, or in place of a portion, of a transcript, an agreed statement of facts may be included in the appeal book under rule 52(1)(a)(v).

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52. Appeal book
(1) An appeal book shall be bound and shall consist of the following, in this order :

(a) Part I – Documents

(i) index of the documents in the appeal book,

(ii) the notice of appeal,

(iii) the written decision appealed from, if any, or the transcript of an oral decision,

(iv) the order appealed from,

(v) any agreed statement of facts prepared for purposes of the appeal,

(vi) the documents, including any agreed statement of facts filed in the court appealed from, that are necessary to enable the issues on appeal to be determined, but not the documents in Part II, and

(vii) in an appeal involving a child under rule 9, any orders that have been made relating to the child;

(b) Part II – Evidence

(i) index of witnesses,

(ii) list of the exhibits,

(iii) copies of exhibits that may be conveniently copied and are necessary to enable the issues on appeal to be determined, and

(iv) copies of affidavits and written admissions and any other documents necessary to enable the issues on appeal to be determined.

(2) The items contained in the appeal book shall be separated by tabs to permit convenient reference to each document or portion thereof.

(3) The pages of the appeal book shall be numbered consecutively in the upper left corner of each page.

(4) If Part II is not lengthy it may be bound in the same volume with Part I.

(5) T he cover of the appeal book shall be grey, and shall state the names of the parties, the number of the appeal, and the volume number of the appeal book where there is more than one volume.

(6) Where there is more than one volume, each volume shall repeat the index and, in addition to the information specified in subsection (5), shall show on its cover the page numbers contained in it.

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53. Factum – contents
(1) A factum shall be bound and shall consist of the following, in this order:

(a) Index, including the page on which the submissions on each issue begin;

(b) Part I – Overview

A brief summary of the appeal and the positions being taken in the factum;

(c) Part II – Concise Statement of Facts

For a respondent, a statement of its position regarding the appellant’s statement of facts and including any additional facts it considers relevant;

(d) Part III – List of the Issues;

(e) Part IV – Argument

A statement of the argument, not to exceed 40 pages unless otherwise authorized by the Chief Justice or a judge, setting out the points of law or fact to be argued and the basis on which the arguments are made, with specific references to the appeal book and the authorities relied upon in support of each point;

(f) Part V – Order or Relief Sought, including any order as to costs;

(g) Index of Appendix A (case authorities listed in alphabetical order) and Appendix B (statutory or regulatory authorities listed in alphabetical order) including citations as required under rule 54(1);

(h) Appendix A – Copies of cases in accordance with rule 54, with appropriate tabbing; and

(i) Appendix B – Copies of relevant portions of statutes, regulations and rules with appropriate tabbing.

(2) In Part IV, the Argument,

(a) the authority for a principle or proposition shall be placed immediately after the paragraph or series of paragraphs to which it applies; and

(b) the citation of the authority shall include the tab reference together with the relevant paragraphs, pages or provisions each time the authority is cited.

(3) Footnotes may be used for purposes of elaboration or explanation which would not conveniently be included in the body of the Argument, but “infra”, “below”, “supra”, “above”, “ibid” and “id” shall not be used.

(4) Except where rule 11 regarding cross-appeals applies, an appellant shall not file a reply factum without the prior approval of the Chief Justice.

(5) Approval under subsection (4) may be sought by making a request or, if convenient, at a pre-hearing conference, case management meeting, status hearing, or at the hearing of an application.

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54. Factum – legal and case authorities
(1) Where possible, the Index of cases shall include the neutral citation together with the citation from an official report, and in particular, reference to decisions of the Supreme Court of Canada or a court of this Province must include the citation from the Supreme Court Reports or the Newfoundland and P.E.I. Reports, if any.

(2) Copies of authorities in Appendix A or B from electronic sources may be filed provided that the citation in the Index of Appendix A complies with subsection (1).

(3) A copy of a case authority shall not be included in Appendix A where the Court has included that case in a list of “Frequently Cited Cases” in a practice note.

(4) When a copy of an authority is contained in documents already filed by another party, an additional copy shall not be filed, but the citation of the authority shall be included in the Index of Appendices A and B with reference to where the copy of the authority is to be found.

(5) A copy of the whole of a lengthy case need not be included in Appendix A if providing a portion would be sufficient for purposes of the appeal.

(6) Copies of authorities may be highlighted or otherwise conveniently marked to identify the portion to which the Court’s attention is to be drawn.

(7) The Index of Appendices A and B shall be included after Part V in the factum and, if the copies of authorities are bound in a separate volume, the Index shall be included at the front of each volume of authorities.

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55. Factum – form
(1) The Index, Parts I to V and the Index of Appendices A and B of a factum shall be bound and

(a) shall be legible and printed in font size 12 with line spacing of one and one-half;

(b) shall be printed on one side of the paper only, with the printed pages to the left;

(c) paragraphs shall be numbered consecutively; and

(d) pages shall be numbered consecutively.

(2) Copies of authorities in Appendices A and B

(a) shall be legible;

(b) may be printed on both sides of a page; and

(c) shall be bound with the factum or in separate volumes where necessary.

(3) The colours of the covers of a factum and authorities shall be

(a) buff or yellow for an appellant, including an appellant’s reply where a reply is permitted;

(b) blue for a respondent’s factum, including a factum as a cross-appellant; and

(c) green for an intervenor’s factum,

but where there are multiple parties, a party may choose to use a different colour where that would assist in identifying that party’s materials.

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56. Filing transcript, appeal book and factum
(1) The appellant shall file the factum together with the appeal book and transcript within 60 days after the date of completion marked on the transcript or agreed statement of facts, or within 120 days after the notice of appeal has been filed if the appeal is proceeding without a request for or preparation of a transcript or an agreed statement of facts.

(2) Where there is more than one appellant, each appellant other than the first appellant shall file its factum and additional portions of the transcript, if any, within 20 days after receipt of the documents served under subsection (1).

(3) An appellant other than the first appellant that does not intend to file a factum shall without delay notify the other parties to the appeal.

(4) A respondent shall file its factum and additional portions of the transcript, if any, within 30 days after receipt of the documents served under subsection (1) or, if subsection (2) or (3) applies, within 30 days after receipt of those documents or notification that an appellant does not intend to file a factum.

(5) An intervenor shall file its factum in accordance with subsection (1) or (2) if it makes submissions in support of that party, or, in all other circumstances, in accordance with subsection (4).

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57. Formal order
(1) A formal order of the Court shall be in Form 8 and shall state the judgment of the Court.

(2) Where a judge files dissenting reasons, the formal order shall indicate the nature of the dissent.

(3) After the Court’s judgment is filed, the successful party shall prepare a draft formal order and shall provide a copy to the other parties to the appeal.

(4) A party receiving a copy of a draft formal order shall, without delay, in writing, indicate consent to the draft or provide comments to the drafter of the order.

(5) Within 30 days after the Court’s judgment is filed, the successful party shall

(a) file a draft formal order, indicating the consent of the other parties; or

(b) if consensus on the contents of the order cannot be reached within that time, file the draft formal order that it proposes together with a written summary of the points in contention.

(6) The Court shall determine and approve the final formal order, which shall be filed, with a copy provided to each party.

(7) The formal order may be filed in the Supreme Court, Trial Division and thereby becomes a judgment of that court for purposes of enforcement.

(8) This rule does not preclude a party from making a request or an application to extend the time under subsection (5), to clarify a point of contention, or to require the successful party to file the draft formal order.

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58. Costs
(1) The Court may make such order as to costs as it considers appropriate, including an order for a lump sum payment or an order on a basis other than is provided in the scale of costs attached to and forming part of these rules.

(2) An order for costs may include costs in the court appealed from.

(3) If no order is made under subsection (1),

(a) the costs of any proceeding in the Court shall be included with the costs of the appeal; and

(b) the successful party on the appeal shall have its costs of the appeal in accordance with column 3 of the scale of costs.

(4) The Court may award costs in accordance with any column or combination of columns under the scale of costs, and in exercising its discretion for this purpose, the Court may consider

(a) the amounts claimed and the amounts recovered;

(b) the importance of the issues;

(c) the complexity, difficulty or novelty of the issues;

(d) the manner in which the proceeding was conducted, including any conduct that tended to shorten or unnecessarily lengthen the duration of the matter;

(e) the failure by a party to admit anything that should have been admitted;

(f) seniority of counsel at the bar;

(g) fair payment for the work of a person acting on his or her own behalf; and

(h) any other relevant matter.

(5) A taxing officer shall determine the cost of an item that is not listed in the scale of costs.

(6) The rules of the Supreme Court, Trial Division governing the manner of payment and taxation of costs shall apply to costs in the Court.

Cabana v. Newfoundland and Labrador, 2016 NLCA 75 – A successful self-represented litigant can recover costs for an amount representing at least a portion of the time and effort he or she put into the case in the place of that which otherwise would have been expended on the case by a lawyer had one been retained.

Winsor v. Winsor, 2017 NLCA 54 – Lump sum of $1500 awarded for costs of appeal. Parties know that costs are always an issue in litigation and that the Court has discretion as to how costs are awarded. The Court is free to depart from column 3 costs. Parties always have the opportunity to make submissions on costs as part of their oral and written arguments and ought to assist the Court by doing so.  If they do not do so, they effectively consign costs determinations to the Court’s discretion.

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59. Correction of clerical mistakes
At any time the Court may

(a) correct an error in a judgment or order that arose from a clerical mistake or from an accidental slip or omission; or

(b) amend a judgment or order to provide for any matter that should have been but was not adjudicated.

38/16 s59

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60. Transitional
(1) Proceedings commenced, but not completed, prior to the coming into force of these rules shall be governed by these rules without prejudice to anything lawfully done under the former rules.

(2) A party may make a request or an application for directions or an order if there is doubt about the application or operation of these rules to a proceeding under subsection (1) or if any difficulty, injustice or impossibility arises as a result.

(3) For the purpose of calculating time limitations, including requiring a thing to be done without delay,

(a) where no time limit was provided under the former rules, the time limit under these rules applies, calculated from the date on which these rules come into force;

(b) where a time limit under these rules is shorter than the time limit under the former rules, the time limit under these rules applies, calculated from the date on which these rules come into force; and

(c) where a time limit under these rules is longer than the time limit under the former rules, the time limit under these rules applies, calculated from the time when the thing was to be done under the former rules.

S.M. v. J.B., 2016 NLCA 59 – leave to appeal interlocutory orders not required for applications filed before new Rules came into force, but heard after. The new Rules apply (rule 60(1)); respondent can make rule 35 application to strike appeal

Atlantic Lottery Corporation Inc. – Societe de Loteries de l’Alantique v. Babstock, 2016 NLCA 64 – Even if appeal deemed abandoned before new Rules came into force, if reinstatement application is made and heard after new Rules come into force, new Rules (17(9)) apply (60(1)). Court may give directions about which Rules apply if application is heard before the new Rules come into force, but the reasons are not released until after the new Rules come into force (60(2)). Parties had agreement not to schedule appeal hearing until after a decision on a certification of a class action was released by the Trial Division. Parties presented plan for appeal. Appeal reinstated.

Weir’s Construction Limited v. Warford Estate, 2016 NLCA 65- New Rules apply when appeal filed before new Rules are in force, but application for stay filed after (60(1)). Test for stay pending appeal remains unchanged by rule 42(2).

Fillatre v. Fillatre, 2016 NLCA 69- follows Atlantic Lottery Corporation Inc. – Societe de Loteries de l’Alantique v. Babstock, 2016 NLCA 64 with respect to the point that the Court can give directions about which rules apply when the matter was heard before the new Rules came into force, but decided after.

Ellis v. Pelley Estate, 2016 NLCA 77 – Even if appeal deemed abandoned before new Rules came into force, if reinstatement application is made and heard after new Rules come into force, new Rules (17(9)) apply (60(1)).

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61. Non-application
Rule 57 of the Rules of the Supreme Court, 1986, SNL 1986, c. 42, Schedule D , no longer applies to any civil proceedings in the Court.

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62. Commencement
These rules come into force on October 17, 2016.

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