The Court of Appeal Act

The Court of Appeal Act, C.C.S.M. c. C240 bilingual version (HTML) Table of Contents Section 1 Definition of "court" 2 Constitution of court 3 Court is a court of record 4 Seal 5 Precedence of judges 6 Oath or affirmation by judge 7 Powers of judge in chambers 8 Effect of interlocutory order 9 Registrar and other officers 10 Jurisdiction of registrar 11 Oath or affirmation by court officers 12 Duties of the Chief Justice and sittings 12.1 Meetings of judges 12.2 Conferences re administration of justice 13 Power to adjourn 14 Quorum of judges 15 Opinion of majority to be opinion of court 16 Adjournment if no quorum 17 Giving judgment 18 As to delivery of judgment 19 Opinion of absent judge may be read 20 Judgments by retired judges, etc. 21 Death of judge before judgment 22 Judges not to review own decisions 23 Appointment of ad hoc judge 24 Jurisdiction of judges 25 Appellate jurisdiction 25.1 Appeals to court 25.2 Leave required for interlocutory appeals 26 Powers of court re proper judgments, inference of fact, further evidence and stay of proceedings 27 When no new trial or only part of matter given new trial 28 New trial on any question 29 Further powers 30 Repealed 31 Security for costs of appeal 31.1 Order restraining vexatious litigant 31.2 Application for leave to proceed 31.3 Abuse of process 32 Extension of time for translations 33 Rules 34 Existing rules as if part of Act 35 Rules are regulations 36 King's Bench practice to apply where procedure not provided 37 This Act not to apply to criminal and other matters 37.1 Settlement conference 38 Annual report HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows: "Court" defined 1 In this Act and the rules made hereunder, " court " means The Court of Appeal. How court constituted 2(1) The court heretofore created, under the name: "The Court of Appeal", shall exist and continue under that name, and shall consist of a chief justice, who shall be styled: "Chief Justice of Manitoba", and seven other judges, who shall be styled Judges of Appeal. Supernumerary judges 2(2) There is established for each office of judge of the court including the Chief Justice of the court the additional office of supernumerary judge of the court. S.M. 2008, c. 35, s. 2 . A court of record 3 The court shall be a superior court of record. Seal 4 The seal at present in use shall be and continue to be the seal of the court; but the seal may, from time to time, be renewed, changed, or altered, or a new seal substituted therefor, by order of the Lieutenant Governor in Council. Judges 5 The Chief Justice of Manitoba has rank and precedence over all other judges of the courts of Manitoba, the Chief Justice of the King's Bench has rank and precedence next after the Chief Justice of Manitoba, and the other judges of the Court of King's Bench and of The Court of Appeal have rank and precedence among themselves according to their seniority of appointment. Oath or affirmation by judge 6 Every judge of the court, previous to entering upon the duties of office, shall take the following oath or affirmation, to be administered by the Lieutenant Governor, the chief justice of the court or any judge of the court: I, , solemnly and sincerely promise and swear (or affirm) that I will duly and faithfully, and to the best of my skill and knowledge, exercise the powers and trusts reposed in me as Chief Justice of (or one of the judges of The Court of Appeal for) Manitoba. So help me God. (Omit last four words where person affirms.) R.S.M. 1987 Supp., c. 4, s. 4 . Powers of judge in chambers 7(1) In any cause or matter pending in the court, any application or motion incidental thereto, not involving the decision of that cause or matter may be heard and disposed of by a judge of the court sitting in chambers; and a judge of the court may at any time during vacation make any interim order to prevent prejudice to the claims of any party as the judge thinks fit. Discharge or variation of order 7(2) Every order made under this section may be discharged or varied by the court. S.M. 2008, c. 35, s. 3 . Effect of interlocutory order 8 No interlocutory order from which there has been no appeal shall operate so as to bar or prejudice the court from giving such decision in the cause or matter as is just. Appointment of registrar and deputy registrars 9(1) The Lieutenant Governor in Council may appoint a registrar of the court and one or more deputy registrars. Appointment of clerks and officers 9(1.1) Clerks and other officers of the court may be appointed under Part 3 of The Public Service Act . Taxing officer 9(2) The registrar shall be the taxing officer of the court. S.M. 2002, c. 47, s. 4 ; S.M. 2021, c. 11, s. 65 . Jurisdiction 10 The registrar has such authority to exercise the jurisdiction of a judge sitting in chambers as is conferred on the registrar by the rules under this Act. S.M. 2008, c. 35, s. 4 . Oath or affirmation of office 11(1) Every court officer shall, before entering upon the duties of office, take and subscribe the following oath or affirmation: I, , solemnly and sincerely promise and swear (or affirm) that I will, according to the best of my skill, learning, ability, and judgment, well and faithfully execute and fulfil the duties of the office of without favour or affection, prejudice or partiality, to any person. So help me God. (Omit last four words where person affirms.) How administered 11(2) The oath or affirmation shall be administered by a judge. R.S.M. 1987 Supp., c. 4, s. 4 . Duties of the Chief Justice 12(1) The Chief Justice of Manitoba shall be responsible for the judicial functions of the court, including direction over sittings of the court and the assignment of judicial duties. Place of sitting 12(2) Subject to subsection (1), the court shall sit in The City of Winnipeg. Time and duration of sittings 12(3) Subject to subsection (1) and the rules made as herein provided, the court, and the judges thereof respectively, may sit and act at any time for the transaction of any part of the business of the court or of the judges, or for the discharge of any duty that, by statute or otherwise, is required to be discharged. S.M. 1989-90, c. 32, s. 2 . Meetings of judges 12.1 The Chief Justice of Manitoba shall, whenever necessary and at least once in each year, convene a meeting of the judges for the purpose of dealing with matters relating to the administration of and practice in the court, or for any purpose relating to the administration of justice, or for the purposes of an Act of the Legislature. S.M. 2014, c. 32, s. 5 . Conferences re administration of justice 12.2 For the purpose of section 41 of the Judges Act (Canada), a judge is authorized to attend, with the approval of the Chief Justice of Manitoba, a meeting, conference or seminar that is held for a purpose relating to the administration of justice. S.M. 2021, c. 40, s. 2 . Power to adjourn 13 The court may adjourn any session from time to time. Quorum of judges 14 Any three of the judges of the court constitute a quorum and may lawfully hold the court. Opinion of majority to be opinion of court 15 The determination of any question before the court shall be according to the opinion of the majority of the members of the court hearing the cause or matter. Adjournment if no quorum 16 Where, at any time, the number of judges necessary to constitute a quorum is not present, the judge or judges present may adjourn the sitting. Giving judgment 17 Judgments of the court shall be delivered in open court, or be released in written form, or be given in such other manner or by such other means as the judges of the court may determine. As to delivery of judgment 18 Where a judgment of the court is delivered in open court, it is not necessary for all the judges who heard the argument to be present in order to constitute the court for delivery of judgment; but, in the absence of any judge from illness or any other cause, judgment may be delivered by a majority of the judges who were present at the hearing. Opinion of absent judge may be read 19 Where a judgment of the court is delivered in open court, and a judge who heard the argument is absent at the delivery, the judge's opinion in writing may be read or announced by any judge present. S.M. 2008, c. 35, s. 5 . Judgments by retired judges, etc. 20 A judge who (a) resigns from his or her office; or (b) is appointed to any other court; or (c) ceases to hold office by reason of subsection 99(2) of the Constitution Act, 1867 ; may, within three months after the resignation, appointment, or ceasing to hold office as aforesaid, give judgment in any cause or matter previously heard before the judge as if the judge had not so resigned, been appointed, or ceased to hold office. S.M. 2008, c. 35, s. 6 . Effect of death of judge before judgment 21 Where a judge who has heard the argument in a cause or matter dies or becomes incapable of performing his or her duties before judgment is given, the other judges who heard the argument may give the judgment of the court; but if they number fewer than four, they must be unanimous. S.M. 2008, c. 35, s. 7 . Judge not to sit in court reviewing own verdict or decision 22 A judge shall not sit on the hearing of an appeal from a judgment or order that the judge made. S.M. 2008, c. 35, s. 8 . Appointment of ad hoc judge 23 Any judge of the Court of King's Bench may, at the request of the Chief Justice of Manitoba or, in his or her absence, at the request of the senior judge of the court, sit as a member of the court and take part in the hearing and decision of any appeal or matter coming before the court and otherwise in relation thereto, and for all such purposes the judge has all the jurisdiction, powers, rights, privileges, and immunities, of a judge of The Court of Appeal. S.M. 2008, c. 35, s. 9 . Jurisdiction of the judges 24 The Chief Justice of Manitoba and the other judges of appeal shall also be, ex officio, judges of the Court of King's Bench, and each of the judges has all the jurisdiction, both civil and criminal, possessed by any judge of the Court of King's Bench; and may, in addition to the duties of a judge of The Court of Appeal, preside over any trials of civil or criminal cases in the Court of King's Bench and over any trials at bar, and over the trials of any election petitions, and for all purposes has all the powers, rights, privileges, and immunities, of a judge of the Court of King's Bench. S.M. 2008, c. 35, s. 10 . Court of Appeal to exercise appellate jurisdiction 25(1) In addition to the jurisdiction and powers that the court has under any other Act, or under any other provision of this Act, the court has all the jurisdiction and powers possessed by the Court of King's Bench sitting en banc immediately prior to July 23, 1906. Court of King's Bench en banc not to exercise appellate jurisdiction 25(2) The Court of King's Bench en banc does not have jurisdiction to entertain an application for a new trial, and does not have any appellate jurisdiction. Appeals to court 25.1(1) Subject to subsection (2) and section 25.2, an appeal may be made to the court in respect of the following: (a) the verdict of a jury in a trial in the Court of King's Bench; (b) an order or judgment of a judge of the Court of King's Bench; (c) a decision of any other court or a tribunal, if a right of appeal to the court is provided by an enactment. Exception 25.1(2) If an enactment (a) provides that there is no appeal from a decision set out in subsection (1); or (b) confers a limited right of appeal or imposes conditions on the ability to appeal; the enactment prevails over subsection (1). Definition of "enactment" 25.1(3) In this section, "enactment" means (a) an Act or a regulation made under an Act; or (b) an Act of the Parliament of Canada or a regulation made under such an Act. S.M. 2021, c. 40, s. 3 . Leave required for interlocutory appeals 25.2(1) Subject to subsection (2), an appeal must not be made to the court with respect to an interlocutory order of a judge of the Court of King's Bench unless leave to appeal is granted by a judge or the court. Exceptions 25.2(2) Leave to appeal an interlocutory order is not required (a) in a proceeding involving the liberty of a person or the custody of a minor; (b) if the order grants or declines to grant a stay or an interlocutory injunction; or (c) in other cases specified in the rules. S.M. 2021, c. 40, s. 3 . Court may pronounce proper judgment 26(1) The court, upon an appeal, may give any judgment which ought to have been pronounced, and may make such further or other order as is deemed just. Power to draw inference of fact and to give judgment 26(2) The court may draw inferences of fact not inconsistent with any finding of fact that is not set aside; and, if satisfied that there is before it all the material necessary for finally determining the matters in controversy, or any of them, or for awarding any relief sought, may give judgment accordingly; but, if of opinion that there is not sufficient material before it to enable it to give judgment, may direct the appeal to stand over for further consideration, and may direct that such issues or questions of fact be tried and determined, and such accounts be taken, and such inquiries be made, as are deemed necessary to enable it, on such further consideration, to dispose finally of the matters in controversy. Power of court to receive further evidence 26(3) The court may, in its discretion, receive further evidence upon questions of fact by oral examination in court, by affidavit, or by deposition taken before an examiner or a commissioner. Exercise of powers 26(4) The powers conferred by subsections (1), (2), and (3) may be exercised (a) notwithstanding that the appeal is as to part only of the judgment, order, decision, or verdict; and (b) in favour of all or any of the parties, although they have not appealed. Court may stay proceedings 26(5) After an appeal has been decided, a judge of the court may, on terms the judge considers appropriate, order that proceedings, including execution, in the cause or matter from which the appeal was taken be stayed in whole or in part. S.M. 1989-90, c. 32, s. 3 . New trial not to be granted in certain cases 27(1) A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or of the omission to take the verdict of the jury upon a question which the judge at the trial was not asked to leave to the jury, or of any omission or irregularity in the course of the trial, unless some substantial wrong or miscarriage has been thereby occasioned. Judgment as to one part and new trial as to others 27(2) Where it appears that a substantial wrong or miscarriage was so occasioned, but that it affected part only of the matter in controversy or some or one only of the parties, the court may give final judgment as to any part or any party not so affected and direct a new trial as to the other part only, or only as to the other party or parties. New trial on any question 28 A new trial may be ordered upon any question without interfering with the finding or decision upon any other question. Further powers 29 For all the purposes of, and incidental to, the hearing and determination of any cause or matter within its jurisdiction, and the amendment, execution, and enforcement, of any judgment or order, and for the purpose of every other authority expressly or impliedly given to it by this Act, the court has the power, authority, and jurisdiction, vested in the court appealed from. 30 [Repealed] S.M. 1989-90, c. 32, s. 4 . Security for costs 31 A judge of the court in chambers may, under special circumstances, make an order or orders for security for costs of any appeal. Order restraining vexatious litigant 31.1(1) If a judge sitting in chambers or the court is satisfied that a person has persistently instituted vexatious proceedings or conducted proceedings in a vexatious manner, the judge or the court may order that (a) the person must not institute a further proceeding; and (b) any proceeding already instituted by the person must not be continued; except with leave of a judge. Obtaining order 31.1(2) An order under subsection (1) may be made (a) on a judge's own motion in chambers or on the court's own motion; or (b) on application by (i) a party against whom the alleged vexatious proceedings have been instituted or conducted, or (ii) any other person, with leave of a judge. S.M. 2008, c. 35, s. 11 ; S.M. 2019, c. 16, s. 2 . Application for leave to proceed 31.2(1) Where a person governed by an order under subsection 31.1(1) seeks to institute or continue a proceeding, the person may apply for (a) leave to institute or continue the proceeding; or (b) rescission of the order; and for no other relief, including costs. Application to court for rescission 31.2(2) If the order under subsection 31.1(1) was made by the court, the application for rescission of the order under clause (1)⁠(b) shall be made to the court. Leave to proceed or rescission 31.2(3) For purposes of an application under subsection (1), where a judge sitting in chambers or the court is satisfied that a proceeding to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding, the judge or the court may, by order, (a) grant leave to proceed; or (b) rescind the order made under subsection 31.1(1). 31.2(4) [Repealed] S.M. 2019, c. 16, s. 3 . No appeal 31.2(5) No appeal lies from a refusal to make an order under subsection (3). S.M. 2008, c. 35, s. 11 ; S.M. 2019, c. 16, s. 3 . Abuse of process 31.3 Nothing in section 31.1 or 31.2 limits the authority of the court to stay or dismiss a proceeding as an abuse of process or on any other ground. S.M. 2008, c. 35, s. 11 . Extension of time for translations 32 Notwithstanding this or any other Act of the Legislature, for the purpose of allowing time for obtaining a translation from French into English or English into French of any document filed in the court or served on a party in an action or proceeding in the court, a judge of the court may extend the time within which, or postpone the day before or by which, any further document is required to be filed in response or any proceeding is required to be taken under any Act of the Legislature. Rules 33 The judges of the court may make rules, which may alter the substantive law, with respect to the practice and procedure of the court, including rules (a) respecting the court's proceedings under an Act that confers jurisdiction on the court or a judge of the court; (a.1) specifying cases in which leave to appeal an interlocutory order is not required for the purpose of clause 25.2(2)⁠(c); (b) establishing a tariff of costs for services by a lawyer in a proceeding; (c) prescribing forms for use in proceedings of the court; (c.1) respecting settlement conferences under section 37.1; (d) authorizing the registrar to do anything specified in the rules, and to exercise any authority and jurisdiction that may be exercised by a judge sitting in chambers. S.M. 2019, c. 16, s. 4 ; S.M. 2021, c. 40, s. 4 ; S.M. 2022, c. 11, s. 2 . Existing rules embodied in Act 34 Subject to this Act, the rules of practice and procedure at present in force are declared to have the same force and effect as if they were embodied in this Act. Rules are regulations 35 The rules made under this Act are regulations within the meaning of The Statutes and Regulations Act . S.M. 2013, c. 39, Sch. A, s. 43 . King's Bench practice to apply where procedure not provided 36(1) In all matters not expressly provided for in this Act or the rules, the practice and procedure of the Court of King's Bench, in so far as applicable, may be adopted and applied. Practice by analogy 36(2) The practice and procedure in all matters for which provision is not made in this Act and the rules shall be regulated by analogy hereto. This Act not to apply to criminal and other matters 37 Nothing in this Act affects the practice or procedure in criminal matters or any matter which by law is not within the cognizance of the Legislature. Settlement conference 37.1(1) At the request of all parties to an appeal, the Chief Justice of Manitoba may appoint a judge to meet with the parties and attempt to settle all or some of the issues on appeal before the hearing of the appeal. Judge not compellable 37.1(2) A judge presiding over a settlement conference must not be compelled to give evidence in any action or proceeding relating to the settlement conference. Immunity 37.1(3) No action or proceeding may be brought against a judge in relation to their actions at a settlement conference. S.M. 2022, c. 11, s. 3 . Annual report 38(1) Within three months after the end of each fiscal year, the Chief Justice of Manitoba must prepare an annual report about the operation, functioning and administration of the court during the year. Information to be included in annual report 38(2) The annual report must contain the following information: (a) the number and type of appeals before the court; (b) the time to disposition of appeals before the court; (c) the number of appeal decisions given by the court; (d) any other information that, in the opinion of the Chief Justice of Manitoba, should be made available to the public to promote public understanding of the courts and the role of the judiciary; (e) any other information that may be required by the regulations concerning the operation, functioning and administration of the court. Annual report submitted to minister by Chief Justice 38(3) The Chief Justice of Manitoba must submit the annual report to the Minister of Justice who must table a copy of the report in the Assembly on any of the first 15 days on which the Assembly is sitting after the minister receives it. Annual report made available to the public 38(4) The Minister of Justice must ensure that the report is made available to the public after it has been tabled in the Assembly. If the Assembly is not sitting when the minister receives the report, the minister must make it available to the public within 15 days after receiving it. Regulations 38(5) The Lieutenant Governor in Council may make regulations respecting information that is required to be included in an annual report under clause (2)⁠(e). S.M. 2019, c. 16, s. 5 .