Trials De Novo
40.16 (1) An application under subsection 822(4) of the Code for a trial de novo shall be made before a date has been fixed for hearing the appeal under rule 40.14.
Notice of Application
(2) At least 7 days’ notice of an application for a trial de novo shall be served on each other party, except that, if the notice is filed with the notice of appeal, it shall be served with the notice of appeal in accordance with subrules 40.06(1).
Date for Hearing of Application
(3) Upon receipt of an application under subrule (1), the clerk of the appeal court shall enter the application for hearing on a date fixed by a judge or, where hearing dates are not so fixed, enter the application on a list of applications to be heard at a regular or special sitting of the appeal court.
(4) Unless a judge otherwise orders, the clerk of the appeal court shall serve each party with a notice of the date on which the application is to be heard.
Abandonment of Appeals
40.17 (1) Where an appellant wishes to abandon his or her appeal, in whole or in part, he or she shall serve on the respondent, in the manner provided in rule 5, a notice of abandonment in Form 9, signed by the counsel of record in the appeal, or by the appellant (in which case the signature shall be verified by affidavit or solemn declaration or witnessed by a counsel or the senior official of the institution in which the appellant is confined).
Dismissal as Abandoned
(2) A judge in chambers may thereupon dismiss the appeal as an abandoned appeal, without the attendance of the counsel of record or the appellant.
Supervision of Appeals and Dismissal for Non-Compliance
40.18 (1) Unless otherwise ordered by a judge of the court, the clerk of the appeal court shall, on notice to both parties, place before a judge, at a time and place specified by the clerk in the notice, any appeals including:
(a) where all transcripts required for the appeal pursuant to this rule or as ordered by a judge have not been served and filed with proof of service within 90 days of the date the notice of appeal was filed.
(b) where the appellant’s appeal book has not been served and filed within 15 days of notification that all transcripts ordered are available or within 60 days of the filing of the notice of appeal in a case in which an agreed statement of facts is filed;
(c) where the appellant’s factum has not been served and filed within 90 days of receiving the Court Reporter’s Completion Certificate pursuant to subrule 40.11(4);
(d) where the respondent’s factum has not been served and filed not later than 10 days of the week in which the appeal is scheduled to be heard;
(e) where an order staying or suspending an order of the trial court, or an order releasing the appellant from custody pending the hearing of the appeal, has expired before the hearing of the appeal;
(f) where the appellant fails to serve and file a written appeal in accordance with subrule 40.15(1), and the material required by subrule 40.15(2); or,
(g) Any other circumstance in which it appears to the clerk of the appeal court that there has been undue delay in perfecting or fixing a date for the appeal for any reason.
(2) Notwithstanding rules 40.18(1) and (3), where the only reason a transcript has not been filed is that a court reporter has not prepared the transcript, the appellant may notify the respondent in writing of the reason for the delay and need not attend the supervision hearing mentioned in subrule (1) unless otherwise ordered by a judge.
(3) Where the clerk of the appeal court provides counsel with a notice of supervision hearing under this rule, directing that counsel of record for the appellant and respondent or counsel on their behalf fully instructed and fully authorized to deal with the matter attend the hearing, the counsel shall appear before the judge at the time and place fixed in the notice of supervision hearing, without further notice.
(4) After hearing the counsel of record or counsel appearing on their behalf fully instructed and fully authorized to deal with the matter, or where counsel does not appear, the judge may make any order concerning the appeal as he or she deems appropriate, including dismissing the appeal as abandoned.
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