Procedure in Appeals (continued)
Stay of Execution (continued)
Marginal note:Stay of execution — application for leave to appeal
65.1 (1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.
Marginal note:Additional power for court appealed from
(2) The court appealed from or a judge of that court may exercise the power conferred by subsection (1) before the serving and filing of the notice of application for leave to appeal if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice.
(3) The Court, the court appealed from or a judge of either of those courts may modify, vary or vacate a stay order made under this section.
- 1990, c. 8, s. 40
- 1994, c. 44, s. 101
Marginal note:Fiat to sheriff when security deposited
66 (1) When security has been given as required by sections 60 and 65, any judge of the court appealed from may issue his fiat to the sheriff, to whom any execution on the judgment has issued, to stay the execution, and the execution shall be thereby stayed whether a levy has been made under it or not.
Marginal note:Where court appealed from is a court of appeal
(2) Where the court appealed from is a court of appeal and execution has been already stayed in the case, the stay of execution continues without any new fiat until the decision of the appeal by the Supreme Court.
(3) Unless a judge of the court appealed from otherwise orders, no poundage shall be allowed against the appellant, on any judgment appealed from, on which any execution is issued before the judge’s fiat to stay the execution is obtained.
- R.S., c. S-19, s. 71
- R.S., c. 44(1st Supp.), s. 7
Marginal note:Money levied and not paid over before fiat
67 Where at the time of the receipt by the sheriff of a fiat, or of a copy thereof, the money has been made or received by the sheriff, but not paid over to the party who issued the execution, the party appealing may demand back from the sheriff the amount made or received under the execution, or so much thereof as is in the sheriff’s hands not paid over, and in default of payment by the sheriff, on that demand, the party appealing may recover the money from the sheriff in an action for money had and received or by means of an order or rule of the court appealed from.
- R.S., c. S-19, s. 72
Marginal note:Perishable property
68 Where a judgment appealed from directs the delivery of perishable property, the court appealed from, or a judge thereof, may order the property to be sold and the proceeds to be paid into court, to abide the judgment of the Supreme Court.
- R.S., c. S-19, s. 73
Discontinuance of Proceedings
69 (1) An appellant may discontinue the proceedings by giving to the Registrar and the respondent a notice entitled in the Court and in the cause, and signed by the appellant or the appellant’s attorney or solicitor, stating that the appellant discontinues the proceedings.
Marginal note:Respondent entitled to costs
(2) On the notice referred to in subsection (1) being given, the respondent is at once entitled to the costs of and occasioned by the proceedings in appeal, and may, in the court of original jurisdiction, either sign judgment for those costs or obtain an order from that court or a judge thereof for their payment, and may take all further proceedings in that court as if no appeal had been brought.
- R.S., c. S-19, s. 74
- R.S., c. 44(1st Supp.), s. 8
Consent to Reversal of Judgment
Marginal note:Consent to reversal
70 A respondent may consent to the reversal of the judgment appealed against by giving to the appellant a notice entitled in the Court and in the cause, and signed by the respondent or the respondent’s attorney or solicitor, stating that the respondent consents to the reversal of the judgment, and thereupon the Court or a judge shall pronounce judgment of reversal as of course.
- R.S., c. S-19, s. 75
Dismissal for Delay
Marginal note:Dismissal for delay to proceed
71 (1) Where an appellant unduly delays to prosecute the appeal, or fails to bring on the appeal to be heard at the first session of the Court, after the appeal is ripe for hearing, the respondent may, on notice to the appellant, move the Court, or a judge in chambers, for the dismissal of the appeal.
(2) Such order shall thereupon be made as the Court or judge deems just.
- R.S., c. S-19, s. 76
Death of Parties
Marginal note:Death of one of several appellants
72 In the event of the death of one of several appellants, pending the appeal to the Court, a suggestion may be filed of the death, and the proceedings may thereupon be continued at the suit of and against the surviving appellant as if the surviving appellant were the sole appellant.
- R.S., c. S-19, s. 77
Marginal note:Death of sole appellant or all appellants
73 (1) In the event of the death of a sole appellant, or of all the appellants, the legal representative of the sole appellant, or of the last surviving appellant, may, by leave of the Court or a judge, file a suggestion of the death, and that he is that legal representative, and the proceedings may thereupon be continued at the suit of and against the legal representative as the appellant.
Marginal note:If no suggestion
(2) If the suggestion referred to in subsection (1) is not made, the respondent may proceed to an affirmance of the judgment, according to the practice of the Court, or take such other proceedings as the respondent is entitled to take.
- R.S., c. S-19, s. 78
Marginal note:Death of one of several respondents
74 In the event of the death of one of several respondents, a suggestion may be filed of the death and the proceedings may be continued against the surviving respondents.
- R.S., c. S-19, s. 79
Marginal note:If suggestion of death untrue
75 A suggestion of the death of one of several appellants, of a sole appellant, of all the appellants or of one of several respondents, if untrue, may on motion be set aside by the Court or a judge.
- R.S., c. S-19, s. 80
Marginal note:Death of sole respondent or all respondents
76 In the event of the death of a sole respondent or of all the respondents, the appellant may proceed, on giving one month’s notice of the appeal and of the appellant’s intention to continue the appeal, to the representative of the deceased party, or, if no such notice can be given, on such notice to the parties interested as a judge of the Court directs.
- R.S., c. S-19, s. 81
Marginal note:Death of party where judgment against deceased
77 In the event of the death of a sole plaintiff or defendant before the judgment of the court in which an action or appeal is pending is delivered, and if the judgment is against the deceased party, the legal representatives of the deceased party, on entering a suggestion of the death, are entitled to proceed with and prosecute an appeal in the Supreme Court in the same manner as if they were the original parties to the suit.
- R.S., c. S-19, s. 82
Marginal note:Death of party where judgment in favour of deceased
78 In the event of the death of a sole plaintiff or sole defendant before the judgment of the court in which an action or appeal is pending is delivered, and if the judgment is in favour of the deceased party, the other party, on entering a suggestion of the death, is entitled to proceed with and prosecute an appeal in the Supreme Court against the legal representatives of the deceased party, but the time limited for appealing shall not run until the legal representatives are appointed.
- R.S., c. S-19, s. 83
Entry of Causes
Marginal note:Entry of appeals and order of hearing
79 Unless otherwise ordered by the Chief Justice or one of the puisne judges at the Chief Justice’s direction, the appeals set down for hearing shall be
(a) entered by the Registrar on a list in the order in which they have been inscribed for hearing; and
(b) heard in the order that the Registrar considers appropriate and disposed of.
- R.S., 1985, c. S-26, s. 79
- 1990, c. 8, s. 41
- 1994, c. 44, s. 102
80 All persons authorized to administer affidavits to be used in any of the superior courts of any province may administer oaths and take and receive affidavits, declarations and solemn affirmations in that province to be used in the Court.
- R.S., c. S-19, s. 85
Marginal note:Appointment of commissioners
81 (1) The Governor in Council may, by commission, empower such persons as the Governor in Council thinks necessary, within or outside Canada, to administer oaths and take and receive affidavits, declarations and solemn affirmations in or concerning any proceeding had or to be had in the Court.
Marginal note:Effect of affidavits
(2) Every oath, affidavit, declaration or solemn affirmation taken or made pursuant to subsection (1) is as valid and of the like effect, to all intents, as if it had been administered, taken, sworn, made or affirmed before the Court or before any judge or competent officer thereof in Canada.
Marginal note:Style of commissioners
(3) Every commissioner empowered pursuant to subsection (1) shall be styled “a commissioner for administering oaths in the Supreme Court of Canada”.
- R.S., c. S-19, s. 86
Marginal note:How affidavits, declarations or affirmations may be made outside Canada
82 Any oath, affidavit, declaration or solemn affirmation concerning any proceeding had or to be had in the Court administered, taken, sworn, made or affirmed outside Canada is as valid and of the same effect to all intents as if it had been administered, taken, sworn, made or afffirmed before a commissioner appointed under this Act, if it is so administered, taken, sworn, made or affirmed outside Canada before
(a) a commissioner authorized to take and receive affidavits to be used in Her Majesty’s High Court of Justice in England;
(b) a notary public and certified under his hand and official seal;
(c) a mayor or chief magistrate of any city, borough or town corporate in any part of the Commonwealth and Dependent Territories other than Canada, or in any foreign country, and certified under the common seal of that city, borough or town corporate;
(d) a judge of any court of superior jurisdiction in any part of the Commonwealth and Dependent Territories other than Canada and certified under the seal of the court of which he is a judge; or
(e) a consul, vice-consul, acting consul, pro-consul or consular agent of Her Majesty exercising his functions in any foreign place and certified under his official seal.
- R.S., c. S-19, s. 87
Marginal note:No proof required of signature or seal of commissioner
83 Every document purporting to have affixed, imprinted or subscribed thereon or thereto the signature of
(a) a commissioner appointed under this Act,
(b) a person authorized to take affidavits to be used in any of the superior courts of any province, or
(c) any one of the persons referred to in paragraphs 82(a) to (e), whose signature is certified in the manner therein provided,
in testimony of any oath, affidavit, declaration or solemn affirmation having been administered, taken, sworn, made or affirmed by or before that person, shall be admitted in evidence without proof of the signature or seal or official character of that person.
- R.S., c. S-19, s. 88
Marginal note:Informality not an objection
84 No informality in the heading or other formal requisites of any affidavit, declaration or solemn affirmation, made or taken before any person under any provision of this Act or any other Act, shall be an objection to its admission in evidence in the Court, if the court or judge before which or whom it is tendered thinks proper to admit it, and if it is actually sworn to, declared or affirmed by the person making it before any person duly authorized thereto and is admitted in evidence, no such informality shall be set up to defeat an indictment for perjury.
- R.S., c. S-19, s. 89
Marginal note:Examination on interrogatories or by commission
85 (1) If a party to any proceeding had or to be had in the Court is desirous of having therein the evidence of any person, whether a party or not or whether resident within or outside Canada, the Court or a judge, if in the opinion of the Court or judge it is, owing to the absence, age or infirmity or the distance of the residence of that person from the place of trial, the expense of taking the evidence otherwise, or for any other reason, convenient to do so, may, on the application of that party, order the examination of that person on oath, by interrogatories or otherwise, before the Registrar, any commissioner for taking affidavits in the Court or any other person or persons to be named in the order, or may order the issue of a commission under the seal of the Court for the examination.
Marginal note:Court may give directions
(2) The Court or a judge may, by the order described in subsection (1) or any subsequent order, give all such directions concerning the time, place and manner of the examination, the attendance of the witnesses and the production of papers at the examination, and all matters connected therewith, as appears reasonable.
- R.S., c. S-19, s. 90
Marginal note:Duty of persons taking such examination
86 Every person authorized to take the examination of any witness pursuant to this Act shall take the examination on the oath of the witness, or on solemn affirmation, in any case in which solemn affirmation instead of oath is allowed by law.
- R.S., c. S-19, s. 91
Marginal note:Further examination
87 The Court or a judge may, if it is considered for the ends of justice expedient to do so, order the further examination, before either the Court or a judge, or other person, of any witness, and if the party on whose behalf the evidence is tendered neglects or refuses to obtain such further examination, the Court or judge, in its or his discretion, may decline to act on the evidence.
- R.S., c. S-19, s. 92
Marginal note:Notice to adverse party
88 Such notice of the time and place of examination as is prescribed in the order made under section 87 shall be given to the adverse party.
- R.S., c. S-19, s. 93
Marginal note:Neglect or refusal to attend
89 (1) Where an order is made for the examination of a witness and a copy of the order, together with a notice of the time and place of attendance, signed by the person or one of the persons to take the examination, has been duly served on the witness within Canada, and the witness has been tendered the legal fees for attendance and travel, the refusal or neglect of the witness to attend for examination or to answer any proper question put on examination, or to produce any paper that the witness has been notified to produce, shall be deemed a contempt of court and may be punished by the same process as other contempts of court.
Marginal note:Where no compulsion
(2) In the course of the examination referred to in subsection (1), the witness shall not be compelled to produce any paper that he would not be compelled to produce or to answer any question that he would not be bound to answer in court.
- R.S., c. S-19, s. 94
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