Acts and Regulations

Rule-69 - PROCEEDINGS FOR JUDICIAL REVIEW

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Current to 1 January 2024
PARTICULAR PROCEEDINGS
RULE 69
PROCEEDINGS FOR JUDICIAL REVIEW
69.01Application for Judicial Review
Notwithstanding any Act, remedies formerly obtained by way of certiorari, mandamus, prohibition, quo warranto or notice of motion to set aside or remit an award, may be obtained only on an application for judicial review made under this rule.
69.02How Proceedings Commenced
A proceeding for judicial review shall be commenced by Notice of Application and, except as provided in this rule, shall be conducted in accordance with Rule 38.
69.03When Proceedings Commenced
Subject to any Act, an application under this rule shall be commenced within 3 months from the date of the order, conviction, commitment, warrant, decision, award or refusal to act which is complained of but the court may,
(a) on appropriate terms,
(b) either before or after the expiration of the time limited herein, and
(c) if a delay will not cause substantial prejudice to anyone,
extend the time for commencing the application.
69.04Notice of Application - Where Returnable
(1)Upon request for a date for hearing of a Notice of Application, a judge may
(a) fix a date for hearing before the Court of King’s Bench,
(b) subject to any Act, and where the judge has obtained the consent of the Chief Justice of New Brunswick, direct that the Notice of Application be made returnable before the Court of Appeal at its regular sitting in the third month following the request, or if the Court of Appeal does not hold a regular sitting in that month, at its regular sitting in the earliest month thereafter in which a regular sitting will be held, or
(c) where, after hearing the applicant, he is not satisfied that there is ground for relief, refuse to fix a date.
(2)If a judge refuses to fix a date under paragraph (1), the applicant may request the Court of Appeal or a judge thereof to fix a date for hearing and, after hearing the applicant, the Court of Appeal or the judge may
(a) direct a judge of the Court of King’s Bench to fix a date to hear the application,
(b) subject to any Act, fix a date for hearing before the Court of Appeal, or
(c) refuse the application.
87-111; 2022-86
69.05Service
(1)The Notice of Application shall be served in accordance with Rule 38.05, and in addition
(a) when the application relates to a proceeding before a lower court, service shall be made on the clerk or judge thereof and on the Attorney General, and
(b) when the application relates to a proceeding before a tribunal or administrative board, service shall be made on the secretary, an officer or a member thereof as provided in Rule 18.02(1)(d).
(2)The court which fixes the return date for the Notice of Application may dispense with the requirement for service of any of exhibits to the supporting affidavits.
(3)When the Notice of Application is returnable before the Court of King’s Bench, it shall be served at least 20 days before the return date.
(4)When the Notice of Application is returnable before the Court of Appeal, it shall be served at least 30 days before the return date.
2022-86
69.06Interim Orders
(1)The court may make interim orders, including
(a) an order for a stay of proceedings until final disposition of the matter or until ordered otherwise, and
(b) an order for payment, or security for payment, of any sum imposed by the conviction, order or other adjudication under review.
(2)When an applicant is ordered to make a payment or to give security, he shall not take a further step in the proceeding other than an appeal from the order, until he has complied with the order.
69.07Service of Affidavit by Respondent
Unless ordered otherwise, a respondent shall, not less than 7 days before the hearing, serve on the applicant and such other persons as the court may direct, a copy of any affidavit he intends to use on the hearing.
69.08Record and Submissions
(1)Rule 38.06 applies in the Court of King’s Bench.
(2)When the Notice of Application is returnable before the Court of Appeal
(a) the applicant shall, not later than the last day of the second month preceding the month in which the application is to be heard,
(i) file with the Registrar 5 copies of a record consisting of the documents enumerated in Rule 38.06 and 5 copies of an Applicant’s Submission in the form prescribed by Rule 62.14 for an Appellant’s Submission, and
(ii) serve on the respondent a copy of the record and of the Applicant’s Submission,
(b) the respondent shall, on or before the 20th day of the month preceding the month in which the application is to be heard,
(i) file with the Registrar 5 copies of a Respondent’s Submission in the form prescribed by Rule 62.19, and
(ii) serve a copy of the Respondent’s Submission on the applicant, and
(c) an applicant who is served with an affidavit by a respondent after the record has been filed, shall forthwith file 5 copies with the Registrar.
(3)When the applicant has complied with paragraph (2)(a), the Registrar shall place the application on the List of Cases to be heard by the Court of Appeal as though it were a perfected appeal.
2022-86
69.09Amendment
(1)The court hearing a proceeding under this rule may grant leave to amend the Notice of Application and allow further affidavits to be used, on such terms as may be just.
(2)No ground shall be relied upon and no relief shall be granted except as set out or claimed in the original or amended Notice of Application.
69.10Order for Production
The court may order that the person having custody or control of the record of the proceeding below or of any proceeding material to the review, produce at or before the hearing
(a) the whole or any part of the record of that proceeding,
(b) the whole or any part of the evidence in that proceeding, or
(c) a certified copy of anything referred to in clauses (a) and (b).
69.11Transfer to Court of Appeal
Subject to any Act, the Court of King’s Bench may transfer a proceeding under this rule to the Court of Appeal.
2022-86
69.12Issuing of Order
Any order granting or dismissing an application (Form 69A), shall be issued by the clerk or Registrar under the seal of the court in accordance with the directions of the court.
69.13Form of Order
(1)An order to quash a conviction, order, commitment, warrant or other proceeding, or part thereof shall declare the same to have been removed into the court and quashed.
(2)Where an applicant is imprisoned under a conviction or order which is quashed, the order (Form 69A) shall direct that he be immediately discharged from custody in respect of such conviction or order and the commitment thereunder.
(3)An order may direct a court, tribunal or authority to forthwith hear and determine the matter under review.
(4)An order may provide that a court, tribunal or authority be prohibited from proceeding further in a matter.
(5)An order may provide that a person shall not occupy an office and shall not perform the duties or exercise the rights pertaining thereto.
(6)An order may set aside or remit the award of an arbitrator or arbitrators.
(7)When the court deems it proper to do so, it may remit a matter under review to the court, tribunal or authority to be heard again or otherwise dealt with as the court directs.
(8)An order may provide that the application be dismissed.
69.14Appeal to Court of Appeal
An appeal may be taken from an order by the Court of King’s Bench granting or dismissing an application under this rule.
2022-86