| 1990, c. 8,
s. 12
|
(4) Subsections 43(8) and (9) of the Act
are replaced by the following:
|
|
| Arrest
|
(8) The jurisdiction conferred on the
Federal Court by section 22 may be exercised
in rem against any ship that, at the time the
action is brought, is beneficially owned by the
person who is the owner of the ship that is the
subject of the action.
|
|
| Reciprocal
security
|
(9) In an action for a collision in which a
ship, an aircraft or other property of a
defendant has been arrested, or security has
been given to answer judgment against the
defendant, and in which the defendant has
instituted a cross-action or counter-claim in
which a ship, an aircraft or other property of
the plaintiff is liable to arrest but cannot be
arrested, the Federal Court may stay the
proceedings in the principal action until
security has been given to answer judgment in
the cross-action or counter-claim.
|
|
|
|
41. Section 44 of the Act is replaced by the
following:
|
|
| Mandamus,
injunction,
specific
performance
or
appointment
of receiver
|
44. In addition to any other relief that the
Federal Court of Appeal or the Federal Court
may grant or award, a mandamus, an
injunction or an order for specific
performance may be granted or a receiver
appointed by that court in all cases in which it
appears to the court to be just or convenient to
do so. The order may be made either
unconditionally or on any terms and
conditions that the court considers just.
|
|
|
|
42. Section 45 of the Act is replaced by the
following:
|
|
| Giving of
judgment
after judge
ceases to hold
office
|
45. (1) A judge of the Federal Court of
Appeal or the Federal Court who resigns or is
appointed to another court or otherwise ceases
to hold office may, at the request of the Chief
Justice of that court, at any time within eight
weeks after that event, give judgment in any
cause, action or matter previously tried by or
heard before the judge as if he or she had
continued in office.
|
|
| Taking part in
giving of
judgment
after judge of
Federal Court
of Appeal
ceases to hold
office
|
(2) If a judge of the Federal Court of Appeal
who resigns or is appointed to another court or
otherwise ceases to hold office has heard a
cause, an action or a matter in the Federal
Court of Appeal jointly with other judges of
that court, the judge may, at the request of the
Chief Justice of the Federal Court of Appeal,
at any time within eight weeks after the
resignation, appointment or other ceasing to
hold office, take part in the giving of judgment
by that court as if he or she had continued in
office.
|
|
| If judge
unable to take
part in giving
of judgment
|
(3) If a person to whom subsection (2)
applies or any other judge by whom a matter
in the Federal Court of Appeal has been heard
is unable to take part in the giving of judgment
or has died, the remaining judges may give
judgment and, for that purpose, are deemed to
constitute the Federal Court of Appeal.
|
|
| 1990, c. 8,
s. 13
|
43. (1) Paragraphs 45.1(1)(a) to (c) of the
Act are replaced by the following:
|
|
|
|
(a) the Chief Justice of the Federal Court of
Appeal and the Chief Justice of the Federal
Court;
|
|
|
|
(b) three judges designated by the Chief
Justice of the Federal Court of Appeal and
five judges designated by the Chief Justice
of the Federal Court;
|
|
|
|
(b.1) the Chief Administrator of the Courts
Administration Service;
|
|
|
|
(c) five members of the bar of any province
designated by the Attorney General of
Canada, after consultation with the Chief
Justice of the Federal Court of Appeal and
the Chief Justice of the Federal Court; and
|
|
| 1990, c. 8,
s. 13
|
(2) Subsections 45.1(2) and (3) of the Act
are replaced by the following:
|
|
| Representatio
n
|
(2) The persons referred to in paragraph
(1)(c) should be representative of the different
regions of Canada and have experience in
fields of law in respect of which the Federal
Court of Appeal and the Federal Court have
jurisdiction.
|
|
| Chief Justice
shall preside
|
(3) The Chief Justice of the Federal Court of
Appeal or a member designated by the Chief
Justice shall preside over the rules committee.
|
|
|
|
44. (1) The portion of paragraph 46(1)(a)
of the Act before subparagraph (i) is
replaced by the following:
|
|
|
|
(a) for regulating the practice and
procedure in the Federal Court of Appeal
and in the Federal Court, including, without
restricting the generality of the foregoing,
|
|
|
|
(2) Subparagraph 46(1)(a)(v) of the Act is
replaced by the following:
|
|
|
|
(v) rules governing the taking of
evidence before a judge or any other
qualified person, in or outside Canada,
before or during trial and on commission
or otherwise, of any person at a time
either before or after the commencement
of proceedings in the Federal Court of
Appeal or the Federal Court to enforce
the claim or possible claim in respect of
which the evidence is required,
|
|
| 1990, c. 8,
s. 14(2)
|
(3) Subparagraph 46(1)(a)(x) of the Act is
replaced by the following:
|
|
|
|
(x) rules governing the material to be
furnished to the Federal Court of Appeal
or the Federal Court by the Tax Court of
Canada or any federal board,
commission or other tribunal, for the
purposes of any appeal, application or
reference;
|
|
|
|
(4) Paragraphs 46(1)(c) and (d) of the Act
are replaced by the following:
|
|
|
|
(c) for the effectual execution and working
of any Act by or under which jurisdiction is
conferred on the Federal Court of Appeal or
the Federal Court or on any judge of either
court in respect of proceedings in that court
and the attainment of the intention and
objects of that Act;
|
|
|
|
(d) for fixing the fees to be paid by a party
to the Registry of the Federal Court of
Appeal and of the Federal Court for
payment into the Consolidated Revenue
Fund in respect of proceedings in those
courts;
|
|
|
|
(5) Paragraph 46(1)(e) of the English
version of the Act is replaced by the
following:
|
|
|
|
(e) for regulating the duties of officers of the
Federal Court of Appeal or the Federal
Court;
|
|
|
|
(6) Paragraph 46(1)(g) of the English
version of the Act is replaced by the
following:
|
|
|
|
(g) for awarding and regulating costs in the
Federal Court of Appeal or the Federal
Court in favour of or against the Crown, as
well as the subject;
|
|
|
|
(7) Paragraphs 46(1)(h) and (i) of the Act
are replaced by the following:
|
|
|
|
(h) empowering a prothonotary to exercise
any authority or jurisdiction, subject to
supervision by the Federal Court, even
though the authority or jurisdiction may be
of a judicial nature;
|
|
|
|
(i) permitting a judge or prothonotary to
vary a rule or to dispense with compliance
with a rule in special circumstances;
|
|
|
|
(j) despite subsection 28(3), providing for
the enforcement of orders of the Federal
Court of Appeal in the Federal Court;
|
|
|
|
(k) designating an act or omission of a
person to be in contempt of court,
respecting the procedure to be followed in
proceedings for contempt and establishing
penalties for a finding of contempt; and
|
|
|
|
(l) dealing with any other matter that any
provision of this Act contemplates being
the subject of a rule or the Rules.
|
|
|
|
45. Sections 48 and 49 of the Act are
replaced by the following:
|
|
| How
proceeding
against Crown
instituted
|
48. (1) A proceeding against the Crown
shall be instituted by filing in the Registry of
the Federal Court the original and two copies
of a document that may be in the form set out
in the schedule and by payment of the sum of
$2 as a filing fee.
|
|
| Procedure for
filing
originating
document
|
(2) The original and two copies of the
originating document may be filed as required
by subsection (1) by being forwarded,
together with a remittance for the filing fee, by
registered mail addressed to ``The Registry,
The Federal Court, Ottawa, Canada''.
|
|
| No juries
|
49. All causes or matters before the Federal
Court of Appeal or the Federal Court shall be
heard and determined without a jury.
|
|
|
|
46. (1) The portion of subsection 50(1) of
the Act before paragraph (a) is replaced by
the following:
|
|
| Stay of
proceedings
authorized
|
50. (1) The Federal Court of Appeal or the
Federal Court may, in its discretion, stay
proceedings in any cause or matter
|
|
|
|
(2) Subsections 50(2) and (3) of the Act
are replaced by the following:
|
|
| Stay of
proceedings
required
|
(2) The Federal Court of Appeal or the
Federal Court shall, on application of the
Attorney General of Canada, stay proceedings
in any cause or matter in respect of a claim
against the Crown if it appears that the
claimant has an action or a proceeding in
respect of the same claim pending in another
court against a person who, at the time when
the cause of action alleged in the action or
proceeding arose, was, in respect of that
matter, acting so as to engage the liability of
the Crown.
|
|
| Lifting of stay
|
(3) A court that orders a stay under this
section may subsequently, in its discretion, lift
the stay.
|
|
| 1990, c. 8,
s. 16
|
47. (1) Subsection 50.1(1) of the Act is
replaced by the following:
|
|
| Stay of
proceedings
|
50.1 (1) The Federal Court shall, on
application of the Attorney General of
Canada, stay proceedings in any cause or
matter in respect of a claim against the Crown
where the Crown desires to institute a
counter-claim or third-party proceedings in
respect of which the Federal Court lacks
jurisdiction.
|
|
| 1990, c. 8,
s. 16
|
(2) Subsection 50.1(2) of the English
version of the Act is replaced by the
following:
|
|
| Recommence
in provincial
court
|
(2) If the Federal Court stays proceedings
under subsection (1), the party who instituted
them may recommence the proceedings in a
court constituted or established by or under a
law of a province and otherwise having
jurisdiction with respect to the subject-matter
of the proceedings.
|
|
| 1990, c. 8,
s. 16
|
(3) Subsection 50.1(3) of the Act is
replaced by the following:
|
|
| Prescription
and limitation
of actions
|
(3) If proceedings are recommenced under
subsection (2) within 100 days after the
proceedings are stayed in the Federal Court,
the claim against the Crown in the
recommenced proceedings is deemed, for the
purposes of any laws relating to prescription
and the limitation of actions, to have been
instituted on the day the proceedings in the
Federal Court were instituted.
|
|
|
|
48. Section 51 of the Act is replaced by the
following:
|
|
| Reasons for
judgment to
be filed
|
51. If a judge gives reasons for a judgment
pronounced by the judge or pronounced by a
court of which the judge was a member, the
judge shall file a copy of the reasons in the
Registry of the court.
|
|
|
|
49. The heading before section 52 of the
Act is replaced by the following:
|
|
|
|
|
|
|
|
50. The portion of section 52 of the Act
before subparagraph (c)(i) is replaced by
the following:
|
|
| Powers of
Federal Court
of Appeal
|
52. The Federal Court of Appeal may
|
|
|
|
(a) quash proceedings in cases brought
before it in which it has no jurisdiction or
whenever those proceedings are not taken
in good faith;
|
|
|
|
(b) in the case of an appeal from the Federal
Court,
|
|
|
|
(i) dismiss the appeal or give the
judgment and award the process or other
proceedings that the Federal Court
should have given or awarded,
|
|
|
|
(ii) in its discretion, order a new trial if
the ends of justice seem to require it, or
|
|
|
|
(iii) make a declaration as to the
conclusions that the Federal Court should
have reached on the issues decided by it
and refer the matter back for a
continuance of the trial on the issues that
remain to be determined in light of that
declaration; and
|
|
|
|
(c) in the case of an appeal other than an
appeal from the Federal Court,
|
|
|
|
51. Sections 53 and 54 of the Act are
replaced by the following:
|
|
| Taking of
evidence
|
53. (1) The evidence of any witness may by
order of the Federal Court of Appeal or the
Federal Court be taken, subject to any rule or
order that may relate to the matter, on
commission, on examination or by affidavit.
|
|
| Admissibility
of evidence
|
(2) Evidence that would not otherwise be
admissible is admissible, in the discretion of
the Federal Court of Appeal or the Federal
Court and subject to any rule that may relate
to the matter, if it would be admissible in a
similar matter in a superior court of a province
in accordance with the law in force in any
province, even though it is not admissible
under section 40 of the Canada Evidence Act.
|
|
| Who may
administer
oath, affidavit
or affirmation
|
54. (1) All persons authorized to take and
receive affidavits to be used in any of the
superior courts of a province may administer
oaths and take and receive affidavits,
declarations and solemn affirmations to be
used in the Federal Court of Appeal or the
Federal Court.
|
|
| Person
empowered
by
commission
|
(2) The Governor in Council may, by
commission, empower any person who the
Governor in Council thinks necessary, in or
outside Canada, to administer oaths and to
take and receive affidavits, declarations and
solemn affirmations in or concerning any
proceeding had or to be had in the Federal
Court of Appeal or the Federal Court.
|
|
| Oath, affidavit
or affirmation
is valid
|
(3) Every oath, affidavit, declaration or
solemn affirmation taken or made under this
section is as valid and of the same effect, to all
intents, as if it had been administered, taken,
sworn, made or affirmed before the Federal
Court of Appeal or the Federal Court.
|
|
| Style of
commissioner
|
(4) Every commissioner empowered under
subsection (2) shall be styled a commissioner
for administering oaths in the Federal Court of
Appeal and the Federal Court.
|
|
| 1996, c. 31,
s. 83
|
52. (1) Subsection 55(1) of the Act is
replaced by the following:
|
|
| Application of
process
|
55. (1) The process of the Federal Court of
Appeal and of the Federal Court runs
throughout Canada and any other place to
which legislation enacted by Parliament has
been made applicable.
|
|
|
|
(2) Subsections 55(4) and (5) of the Act
are replaced by the following:
|
|
| Sheriff to
execute
process
|
(4) A sheriff or marshal shall execute the
process of the Federal Court of Appeal or the
Federal Court that is directed to the sheriff or
marshal, whether or not it requires the sheriff
or marshal to act outside their geographical
jurisdiction, and shall perform all other duties
expressly or impliedly assigned to the sheriff
or marshal by the Rules.
|
|
| Federal Court
process if
absence or
incapacity of
sheriff
|
(5) If there is no sheriff or marshal or a
sheriff or marshal is unable or unwilling to act,
the process of the Federal Court shall be
directed to a deputy sheriff or deputy marshal,
or to any other person provided for by the
Rules or by a special order of that court made
for a particular case, and that person is entitled
to take and retain for their own use the fees
provided for by the Rules or the special order.
|
|
| Federal Court
of Appeal
process if
absence or
incapacity of
sheriff
|
(6) If there is no sheriff or marshal or a
sheriff or marshal is unable or unwilling to act,
the process of the Federal Court of Appeal
shall be directed to a deputy sheriff or deputy
marshal, or to any other person provided for by
the Rules or by a special order of that court
made for a particular case, and that person is
entitled to take and retain for their own use the
fees provided for by the Rules or the special
order.
|
|
|
|
53. (1) Subsections 56(1) and (2) of the Act
are replaced by the following:
|
|
| Analogy to
provincial
process
|
56. (1) In addition to any writs of execution
or other process that are prescribed by the
Rules for enforcement of its judgments or
orders, the Federal Court of Appeal or the
Federal Court may issue process against the
person or the property of any party, of the same
tenor and effect as those that may be issued out
of any of the superior courts of the province in
which a judgment or an order is to be
executed, and if, by the law of that province,
an order of a judge is required for the issue of
a process, a judge of that court may make a
similar order with respect to like process to
issue out of that court.
|
|
| Process
against person
|
(2) No person shall be taken into custody
under process of execution for debt issued out
of the Federal Court of Appeal or the Federal
Court.
|
|
|
|
(2) Subsection 56(3) of the English
version of the Act is replaced by the
following:
|
|
| Process
against
property
|
(3) All writs of execution or other process
against property, whether prescribed by the
Rules or authorized by subsection (1), shall
|
|
|
|
(a) unless otherwise provided by the Rules,
be executed, with respect to the property
liable to execution and the mode of seizure
and sale, as nearly as possible in the same
manner as similar writs or process that are
issued out of the superior courts of the
province in which the property to be seized
is situated are, by the law of that province,
required to be executed; and
|
|