Newfoundland and Labrador (NL) has a population of about 520,437 ranking it the second smallest province in Canada. It covers approximately 156,453 square miles, almost the equivalent of California. About 92% of the provinces inhabitants live on the island of Newfoundland, with the remainder living in Labrador which is a part of mainland Canada. The province's capital is St. Johns, Canada's 20th largest metropolitan area.
The Initiation of Legal Actions
There are two courts in NL where civil actions may be commenced:
- Supreme Court Trial Division - hears unlimited damage claims, family cases, estate cases, criminal cases and appeals from the Small Claims Court; and
- Small Claims Court (Provincial Court) - hears claims up to $25,000.00.
There is also the availability of Summary Trial and Expedited Trial Applications (Rules of Court - Rule 17A actions) in the Supreme Court Trial Division. These are for claims the court deems justifiable to expedite.
The following relates to the process leading to the trial of a civil action in the Supreme Court Trial Division.
An action is typically commenced by a plaintiff filing a Statement of Claim or Originating Application with attached Notice to Defendants with the General Division of the Supreme Court of NL. Once the originating documents are filed with the court the documents are deemed to be issued. The cost of filing originating documents is $123.00.
Once a Statement of Claim is issued, the plaintiff has 1 year to serve it on the defendant unless the court has granted a six-month renewal to serve the claim on grounds presented by the plaintiff. A maximum of four such renewals may be granted.
A Defendant must serve and file its Statement of Defence 10 days after being served with a Statement of Claim. If the defendant is outside the province residing in Canada they must serve their Statement of Defence in 30 days.
If they are residing in the United States they have 45 days. If they are residing elsewhere they have 60 days. A claim and a defence are collectively referred to as the "pleadings" and they must comply with Rule 14 of the Rules of Court. Jury trials are as of right only for actions involving defamation, malicious prosecution or false imprisonment.
The plaintiff and/or defendant may request in a certificate of readiness filed under the Rules of Court to have issues of fact to be tried by jury and judge. In causes of action other than where a jury trial may be requested by right, the party seeking a jury trial must show there is an alleged breach of standards of community morality to justify a liability and damages assessment by a jury.
Limitation Period
The limitation period for commencing an action in NL for damages in respect of injury to a person or property, including economic injury, arising from tort or contract, trespass causing damage to property, defamation, malicious prosecution or false imprisonment, is 2 years subject to discoverability principles. Other causes of action can have a limitation period of 6 or ten years. The limitation period for recovering on a civil judgment is ten years.
Discovery/Examination of Documents and Parties
The Rules of Court in NL promote the early resolution of claims by mandating pretrial disclosure of documents and deposition of parties.
Documentary disclosure occurs via the mandatory production by each party of a List of Documents, (or 'LOD'), which lists all documents to be disclosed, as well as a list of documents which will not be disclosed on the basis of privilege or other legal basis. All LODs must reflect all of the documents which are related (which can result in an obligation to disclose more than relevant documents) to the issues in the action, and the list must include a signed certification by the lawyer for the party confirming that the lawyer is not aware of any document not disclosed which should have been disclosed. LODs must be issued 10 days after the close of pleadings, or 7 days after the receipt of an originating document if there are no pleadings.
Examination for Discovery can occur without an order from the Court any time after the pleadings have closed, and generally happen after the disclosure of documents described above. Any person may be orally examined on oath or affirmation by any party regarding any matter that is relevant to the subject matter of the proceeding and is not privileged.
In the Discovery process, a person being examined is questioned verbally by lawyers for the purpose of "discovering" all of the facts and evidence the adverse party has in its possession and which are not otherwise contained in the documents. A person being examined shall answer any question relevant to their knowledge and the subject matter, even if it is outside the scope of the pleadings. The parties may also question on the documents themselves.
Parties also have the option of serving "interrogatories" on opposing parties. "Interrogatories" are questions that must relate to the same matters that are dealt with examinations for Discovery. They must be answered by the receiving party, within ten days of their receipt. The answers to these questions may be used at trial to the same extent as evidence from an examination for Discovery.
For Summary/Expedited Trial, if the proceeding is ordered to move ahead towards a trial, the Court may order that Discovery be limited to matters not covered by affidavits filed on the application or cross examination of them. The Court may also order that the discovery be completed in a certain time frame that it be dispensed with or limited in scope and nature.
Pre-Trial Procedures / Settlement Conferences
Following the completion of Examinations for Discovery of the parties and documents the parties to an action will then usually contemplate the need for calling expert witnesses at trial. Should a party retain an expert witness, they must give the other party the report of the expert witness at least 4 days prior to a pre-trial conference if available or 10 days prior to the start of the trial. Expert reports not provided at least 10 days prior to the start of trial will not be admissible without leave.
At any point pre-trial, parties may make application to court by motion for the court to decide on questions of law, fact, or admissibility of evidence or to generally weigh in on the direction of the proceedings moving forward.
Pre-trial conferences are used for the parties to get together and attempt to simplify the issues by amending pleadings, admitting certain facts, limiting the number of witnesses at trial, etc. At least 5 days before a pre-trial conference each party shall provide to the opposing party and the judge a brief containing a summary of facts and the issues of law. At a pre-trial conference, the judge may order the parties attend a settlement conference.
The purpose for a settlement conference is to allow the parties to gather before a judge, without the hearing of witnesses, and explore all possibilities of settlement. The settlement conference typically occurs 1 to 2 months prior to the actual trial date. At least ten days before the settlement conference, each party shall file a brief. All communication during a settlement conference is privileged. The parties may settle the action at the settlement conference, or if not, the judge may rule, amongst other things, that the settlement conference be converted to a pre-trial conference.
Setting Down for Trial, Trials and Appeal Procedures
Unless otherwise ordered, a trial will take place where the judicial proceedings were commenced.
A party can make an application for a trial within 90 days after close of pleadings if the trial is expected to take less than 5 days.
Also, both parties may jointly initiate the procedures for setting down a case for trial by filing a Certificate of Readiness. If one party refuses to sign a Certificate of Readiness, or fails within 10 days of receiving one to complete or sign, then the opposing party may apply for an order that the case by placed on the pre-trial list.
Once a proceeding has been placed on the pre-trial list, all parties are considered to be ready for trial.
A trial in NL is always heard by a single judge, unless there is an exception as discussed above to it being held before a jury. In such cases juries consist of 6 members. Any 5 jurors may return a verdict.
A party can appeal an application to the Newfoundland Court of Appeal from a decision of the Supreme Court of NL Trial Division. A Notice of Appeal must be brought within 30 days of the filing of the order appealed from. A Notice of Appeal will be served on any party in a proceeding who may be affected by the appeal as soon as practicable after the filing.
Originally published by RMC Guide to Litigation in Canada (2020).
Originally published December 17, 2020.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.