Acts and Regulations

p-28 - Public Works Act

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Repealed on 9 February 2017
CHAPTER P-28
Public Works Act
Repealed: R.S.N.B. 2016, Schedule A
Definitions
1In this Act
“arbitral tribunal” means a sole arbitrator or a panel of 3 arbitrators; (tribunal d’arbitrage)
“land” includes any estate, term, easement, right or interest in, to, over or affecting land;(bien-fonds)
“Minister” means the Minister of Transportation and Infrastructure;(Ministre)
“owner” includes a mortgagee, lessee, tenant, occupant, person entitled to a limited estate or interest, and a guardian, executor, administrator or trustee in whom land or any interest therein is vested;(propriétaire)
“project” means (projet)
(a) the modifications to the Petitcodiac River Causeway to restore the passage of fish and any work related to the modifications to the Petitcodiac River Causeway to restore the passage of fish, or
(b) the decommissioning of the Eel River Dam to restore the passage of fish and any work related to the decommissioning of the Eel River Dam to restore the passage of fish;
“public work” includes all lands, buildings and other structures that are, for the purposes of a project, designated as public works by the Minister and all lands, buildings and other structures belonging to Her Majesty in right of the Province, except(ouvrage public)
(a) highways,
(b) ferry wharves or bridges,
(c) Crown lands, buildings and other structures under the jurisdiction of the Minister of Energy and Resource Development, and
(d) the lands, buildings and other structures belonging to Her Majesty in right of the Province that are placed under the administration of a minister other than the Minister or under the administration of another agent of Her Majesty by any other Act;
“work” includes, but is not limited to, the construction, extension, enlargement, alteration, repair, maintenance and improvement of lands, buildings and other structures.(travaux)
1963 (2nd Sess.), c.10, s.1; 1965, c.34, s.1; 1966, c.91, s.1; 1972, c.28, s.3; 1972, c.58, s.1; 1974, c.43 (Supp.), s.1; 1986, c.8, s.108; 1991, c.59, s.59; 2003, c.E-4.6, s.176; 2004, c.20, s.55; 2009, c.1, s.1; 2009, c.2, s.1; 2010, c.31, s.116; 2013, c.11, s.1; 2016, c.37, s.163
Lands and buildings designated as public works
2009, c.1, s.2
1.1(1)Sections 12 and 12.01 do not apply to lands and buildings that are, for the purposes of a project, designated as public works by the Minister.
1.1(2)Despite section 2 of the Marshland Reclamation Act, the Minister has sole responsibility for the construction, reconstruction, recondition, repair, maintenance, conduct and operation of dykes, aboiteaux, breakwaters, canals, ditches, drains, roads and other structures, excavations and facilities for the reclamation, development, improvement or protection of marshland on lands that are, for the purposes of a project, designated as public works by the Minister.
2009, c.1, s.2
Administration
2(1)The Minister is responsible for and has the general administration, management, direction and control of
(a) public works,
(b) the work carried out on public works,
(c) all money allotted for the acquisition of public works and the work carried out on public works,
(d) lands, buildings and other structures leased under section 9,
(e) the work carried out on land, buildings and other structures leased under section 9, and
(f) all money allotted for the leasing of land, buildings and other structures under section 9.
Delegation of powers
2(2)The Minister may delegate to any officer under his supervision, any administrative power conferred upon the Minister by this Act.
1963 (2nd Sess.), c.10, s.2; 2009, c.2, s.2; 2013, c.11, s.2
Contracts made in name of Queen
3All contracts made by the Minister shall be made in the name of Her Majesty.
1963 (2nd Sess.), c.10, s.3
Application of Employment Standards Act
4Every contract made by the Minister whereby labour is to be performed shall contain minimum wage provisions as set out in the applicable minimum wage regulation under the Employment Standards Act.
1963 (2nd Sess.), c.10, s.4; 1987, c.6, s.93
Action instituted in name of Minister
5Any action or other proceeding for the enforcement of a contract made by the Minister or for the recovery of damages to any public work or to any land, building or other structure leased under section 9 or for the enforcement of any right in respect of a public work or any land, building or other structure leased under section 9 may be instituted in the name of the Minister.
1963 (2nd Sess.), c.10, s.5; 2013, c.11, s.3
Action by Attorney General
6Nothing in section 5 impairs the right of the Crown to institute or maintain an action, suit or proceeding by the Attorney General or otherwise to prevent any trespass or injury or for a breach of contract or to recover damages therefor.
1963 (2nd Sess.), c.10, s.6; 1967, c.38, s.2; 1981, c.6, s.1
Annual report
7The Minister shall make annually a detailed report to the Lieutenant-Governor in Council respecting the expenditure of public money on public works and on lands, buildings and other structures leased under section 9, and that report shall be laid before the Legislative Assembly.
1963 (2nd Sess.), c.10, s.7; 2013, c.11, s.4
Powers of Minister respecting land
8The Minister may, by himself, his architects, engineers, agents and workmen,
(a) enter upon any land, survey and take levels of that land and make such borings or sink such trial pits as he deems necessary for any purpose relative to a public work,
(b) take possession of any land, waters or watercourse that in the Minister’s opinion is necessary to carry out work on a public work, or for obtaining access to that public work,
(c) enter upon any land including any Crown lands whether leased or not and deposit thereon any material required for a public work or for the purpose of removing or carrying away any material, and may remove therefrom any material used to carry out work on a public work; and for such purpose may make and use such temporary roads to and from such land as the Minister deems necessary for such purposes,
(d) enter upon any land for the purpose of making drains in which to carry off water from a public work and of keeping those drains in repair, and
(e) alter the course of any watercourse and road and change the level of the same.
1963 (2nd Sess.), c.10, s.8; 2009, c.2, s.3
Power of Minister to enter buildings and on lands designated as public works
2009, c.2, s.4
8.1The Minister may, by himself or herself or by his or her architects, engineers, agents and workers, enter any building or other structure or on any land that is, for the purposes of a project, designated as a public work by the Minister in order to carry out work on that public work.
2009, c.2, s.4; 2013, c.11, s.5
Power of Minister to make contract
9The Minister may contract for the purchase or lease of land, buildings and other structures required for a public work or for the use and purposes of government.
1963 (2nd Sess.), c.10, s.9; 2013, c.11, s.6
Notice of intention to designate
9.1Before the Minister designates any land, building or other structure as a public work for the purposes of a project, the Minister shall serve notice in writing of the intention to designate on the owner of the land, building or other structure.
2009, c.2, s.5; 2013, c.11, s.7
Service of notice
2009, c.2, s.5
9.2(1)A notice under section 9.1 shall be sufficiently served if it is mailed by registered mail to the latest known address of the owner.
9.2(2)Service by registered mail shall be deemed to be effected 30 days after the date of mailing.
2009, c.2, s.5
Exemption from the Community Planning Act
2009, c.2, s.5
9.3With respect to lands, buildings and other structures that are, for the purposes of a project, designated as public works by the Minister, the Minister is exempt from compliance with
(a) the Community Planning Act,
(b) any by-law enacted under the Community Planning Act,
(c) any regulation, order or demand made under the Community Planning Act,
(d) any term or condition made or imposed under the Community Planning Act, and
(e) any decision of the Assessment Planning and Appeal Board made under the Community Planning Act.
2009, c.2, s.5; 2013, c.11, s.8
Permits, licences and approvals
2009, c.2, s.5
9.4(1)Despite any other Act, the Minister may apply for any permit, licence or approval that he or she considers necessary to carry out work on the lands, buildings and other structures that are, for the purposes of a project, designated as public works by the Minister.
9.4(2)If the Minister is unable to meet the requirements or comply with the terms and conditions for the issuance of the permits, licences and approvals referred to in subsection (1), the Ministers responsible for the issuance of the permits, licences and approvals may, despite the fact that the Minister is unable to meet the requirements or comply with the terms and conditions for their issuance, issue the permits, licences and approvals to the Minister.
2009, c.2, s.5; 2013, c.11, s.9
Compensation for damages
10(1)The Minister shall compensate any person for damages suffered by virtue of anything done under this Act.
Written claim for compensation
10(2)Any person claiming to be entitled to compensation shall deliver to the Minister a written claim setting forth full particulars thereof and of his right and title to such compensation.
1963 (2nd Sess.), c.10, s.10
Arbitration
11(1)If the Minister does not agree with the compensation claimed under subsection 10(2), the Minister shall, within 120 days after receiving the claim for compensation, offer in writing the amount that the Minister considers to be reasonable compensation and at the same time give notice to the person claiming compensation that if the amount of the offer is not accepted within 120 days after the date the person receives the offer, the matter of compensation will be submitted to arbitration.
11(2)If the person claiming compensation does not accept the offer of the Minister within 120 days after receiving the offer, the Minister shall submit the matter of compensation to arbitration and the Minister and the person claiming compensation shall be deemed to have entered into a written arbitration agreement.
1963 (2nd Sess.), c.10, s.11; 2009, c.2, s.6; 2014, c.35, s.1
Court of Queen’s Bench may extend time limit
11.01The Court of Queen’s Bench of New Brunswick may, on an application by the Minister or a person claiming compensation, extend a time limit in subsection 11(1) or (2), either before or after the expiration of the time limit.
2014, c.35, s.2
Application of Arbitration Act
2009, c.2, s.7
11.1The Arbitration Act applies to an arbitration under this Act but, when there is a conflict between a provision of this Act and a provision of the Arbitration Act, the provision of this Act prevails.
2009, c.2, s.7
Exclusive jurisdiction of arbitral tribunal
2009, c.2, s.7
11.2(1)An arbitral tribunal has exclusive jurisdiction to hear and determine all matters of compensation under this Act and no court shall intervene in the matter of compensation, except for the following purposes:
(a) to assist the arbitration process;
(b) to prevent unfair or unequal treatment of a party to an arbitration agreement;
(c) to enforce awards.
11.2(2)No person shall apply for compensation under Part II of the Expropriation Act or any other Act for damages suffered by virtue of anything done under this Act.
2009, c.2, s.7
Appointment of arbitral tribunal
2009, c.2, s.7
11.3(1)Within 10 days after the date on which the Minister submits the matter to arbitration, the Minister and the person claiming compensation shall appoint a sole arbitrator.
11.3(2)If the Minister and the person claiming compensation are unable to agree on the appointment of a sole arbitrator within 10 days after the date on which the Minister submits the matter to arbitration, an arbitral tribunal consisting of 3 arbitrators shall be appointed as follows:
(a) one by the Minister;
(b) one by the person claiming compensation; and
(c) one by the arbitrators appointed under paragraphs (a) and (b) who shall act as chair of the arbitral tribunal.
11.3(3)The Minister and the person claiming compensation shall each appoint an arbitrator within 10 days after the expiration of the time period referred to in subsection (2).
11.3(4)If the Minister or the person claiming compensation fails to appoint an arbitrator within 10 days after the expiration of the time period referred to in subsection (2), The Court of Queen’s Bench of New Brunswick shall appoint an arbitrator on behalf of the Minister or the person, as the case may be.
11.3(5)If the arbitrators appointed under paragraphs (2)(a) and (b) are unable to agree on the appointment of the chair within 20 days after the appointment of the second arbitrator, The Court of Queen’s Bench of New Brunswick shall appoint the chair on their behalf.
2009, c.2, s.7
Fees and expenses of arbitral tribunal
2009, c.2, s.7
11.4(1)If an arbitral tribunal consists of a sole arbitrator, the Minister is responsible for the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration.
11.4(2)If an arbitral tribunal consists of 3 arbitrators,
(a) the Minister is responsible
(i) for the fees and expenses of the chair,
(ii) for the fees and expenses of the arbitrator appointed by the Minister, and
(iii) for any other expenses related to the arbitration, and
(b) the person claiming compensation is responsible for the fees and expenses of the arbitrator appointed by that person.
2009, c.2, s.7
Decision of arbitral tribunal
2009, c.2, s.7
11.5Within one year after the date on which the Minister submits the matter of compensation to arbitration, the arbitral tribunal shall make a decision on the matter of compensation.
2009, c.2, s.7
Arbitral tribunal may extend the time for making a decision
11.6Before the expiration of the time for making a decision referred to in section 11.5, an arbitral tribunal may extend the time for making a decision by giving notice of the extension with reasons to the Minister and to the person claiming compensation.
2014, c.35, s.3
Vesting of property; sale or lease of public work
12All public works shall be vested in Her Majesty in right of the Province and despite section 55 of the Financial Administration Act and any other Act, when a public work is not required the Minister may with the approval of the Lieutenant-Governor in Council enter into an agreement for the sale or lease thereof and may convey any such public work by a deed of conveyance, lease or other instrument under the Great Seal of the Province and under the hand of the Minister, and the proceeds of any such sale or leasing shall be accounted for as public money or on the direction of the Lieutenant-Governor in Council, deposited to the credit of the Land Management Fund.
1963 (2nd Sess.), c.10, s.12; 1965, c.34, s.2; 1992, c.73, s.1; 2013, c.11, s.10
Sale or disposal of public works without Lieutenant-Governor in Council approval
12.01(1)Despite section 12 and despite section 55 of the Financial Administration Act and any other Act, the Minister may, without the approval of the Lieutenant-Governor in Council, sell or otherwise dispose of a public work that is no longer required by the Minister if the public work has an appraised value not exceeding $15,000.
12.01(2)The appraised value of a public work shall be determined by a member of the New Brunswick Association of Real Estate Appraisers/Association des évaluateurs immobiliers du Nouveau-Brunswick holding the designation of Accredited Appraiser Canadian Institute (AACI).
12.01(3)If a sale of a public work is made in the circumstances set out in this section, the proceeds of the sale shall be accounted for as public money or, on the direction of the Minister, be deposited to the credit of the Land Management Fund.
2001, c.14, s.4; 2013, c.11, s.11
Transfer of land, buildings and other structures from other Ministers
12.011(1)Despite section 55 of the Financial Administration Act, if any land, building or other structure belonging to Her Majesty in right of the Province that is under the administration of a minister other than the Minister is no longer required, that other minister shall transfer the land, building or other structure to the Minister.
12.011(2)Any land, building or other structure referred to in subsection (1) is, on transfer to the Minister, a public work.
2013, c.11, s.12
Transfer of public works to other Ministers
12.012Despite section 12 and despite section 55 of the Financial Administration Act and any other Act, the Minister shall distribute lists of public works that are no longer required to other ministers and may transfer a public work to another minister by transfer at book value plus the cost of transportation and any other costs incidental to the transfer.
2013, c.11, s.12
Sale of public works to non-profit organizations or other governments
12.013 Subject to section 12 and despite section 55 of the Financial Administration Act, the Minister may sell a public work that is not transferred under section 12.012 for any amount up to the cost, appraised or book value of the public work to a charitable, religious or non-profit organization, a municipality, a rural community, a government of another province or territory, the Government of Canada or a corporation or agency in which the Province has a majority interest.
2013, c.11, s.12; 2014, c.35, s.4
12.014(1)Subject to subsections (1.2) and (2), the Minister shall sell a public work that is not transferred under section 12.012 or sold under section 12.013
(a) by advertised public auction conducted at any location in the Province,
(b) by advertised public tender, or
(c) by a request for proposals.
12.014(1.1)Subsection (1) does not apply to the sale of a public work if the Treasury Board determines that a sale under that section is impractical or that a public benefit is likely to result from the sale of the public work by another method.
12.014(1.2)If the Minister determines that the only value in a public work is salvage value, the Minister shall sell the public work by sealed offer solicited from more than one source.
12.014(2)If the Minister determines that a public work has no value, the Minister may dispose of it at the local sanitary landfill site, but if the public work may be hazardous to the health of the public, disposal shall be made in the manner required by the Minister of Environment and Local Government.
12.014(3)The Minister shall maintain adequate records of each transaction relating to the sale or disposal of a public work under this Act, including, if applicable,
(a) the name of the buyer or recipient,
(b) a description of the public work, including serial number if applicable, and
(c) the location and date of sale or disposal.
2013, c.11, s.12; 2014, c.35, s.5; 2016, c.37, s.163
12.02(1)Where the Minister sells a public work under section 12.01, the Minister shall provide to Executive Council a report on all such transactions in such form as is approved by Executive Council.
12.02(2)A report under subsection (1) shall be submitted for the six month period after the commencement of this section and for every six month period thereafter, and shall be submitted no later than one month after each six month period.
12.02(3)A report under subsection (1) shall be published in The Royal Gazette no later than one month after the report is accepted by Executive Council.
2001, c.14, s.4
Land management Fund
12.1(1)There is established a fund to be known as the Land Management Fund.
12.1(2)The Minister shall be the custodian of the Land Management Fund and the Land Management Fund shall be held in trust by the Minister.
12.1(3)The Land Management Fund shall be held for the purposes of this section in a separate account in the Consolidated Fund.
12.1(4)The purposes for the Land Management Fund are
(a) with the approval of the Lieutenant-Governor in Council, to acquire land and lands and buildings and other structures,
(b) to maintain properties which have been designated by the Minister for management under the Fund, and
(c) to develop and maintain a land inventory system.
12.1(5)Payments for the purposes of subsection (4) shall be a charge upon and payable out of the Land Management Fund.
12.1(6)The following are payable out of the Land Management Fund:
(a) costs associated with acquiring and selling land and lands and buildings and other structures;
(b) expenses prescribed by regulation relating to the administration of the Land Management Fund.
12.1(7)The Minister may, with money from the Fund and with the approval of the Lieutenant-Governor in Council, contract for the purchase of land and lands and buildings and other structures.
12.1(8)Land and lands and buildings and other structures acquired under this section are public works which shall be vested in Her Majesty in right of the Province under the general administration, management, direction and control of the Minister.
1992, c.73, s.2; 2009, c.2, s.8; 2013, c.11, s.13
Regulations
12.2(1)The Lieutenant-Governor in Council may make regulations
(a) prescribing expenses relating to the administration of the Land Management Fund that are payable out of the Land Management Fund;
(b) authorizing the Minister to designate lands, buildings and other structures as public works for the purposes of a project, including lands, buildings and other structures referred to in paragraphs (a) to (d) of the definition “public work” in section 1;
(c) authorizing the Minister to revoke a designation made under paragraph (b);
(d) exempting the lands, buildings and other structures referred to in paragraph (b), or any portion of them, from the application of the Mechanics’ Lien Act.
12.2(2)A regulation made under paragraph (1)(b), (c) or (d) respecting the modifications to the Petitcodiac River Causeway to restore the passage of fish and any work related to the modifications to the Petitcodiac River Causeway to restore the passage of fish may be made retroactive to any date, including a date before the commencement of this section.
1992, c.73, s.2; 2009, c.1, s.3; 2013, c.11, s.14
Public works development area
13(1)The area described in Schedule A is declared to be a public works development area.
Sale of land within area
13(2)A sale of land within a public works development area is void unless it complies with subsections (2.1) to (2.5).
Offer for sale to Minister
13(2.1)An owner who intends to sell land within a public works development area shall offer for sale the land to the Minister in writing, such offer to contain full particulars of the proposed sale.
Offer for sale to Minister
13(2.2)Within ninety days of the receipt of an offer under subsection (2.1) the Minister
(a) may enter into an Agreement of Sale with the owner respecting such land, or
(b) shall indicate to the owner in writing that the Minister does not wish to purchase the land.
Offer for sale to Minister
13(2.3)The Minister and the owner may by agreement extend the ninety day period referred to in subsection (2.2).
Offer for sale to Minister
13(2.4)If the Minister does not act in accordance with subsection (2.2) by the end of the ninety day period specified in subsection (2.2) or as extended under subsection (2.3), or if the Minister indicates to the owner that he does not intend to purchase the land, the owner may, within a period of not more than two years after the date of the offer to the Minister under subsection (2.1), sell the land to any purchaser.
Offer for sale to Minister
13(2.5)After the two year period referred to in subsection (2.4), the owner shall not sell or offer for sale the land until he has offered the land for sale to the Minister in accordance with subsection (2.1).
Application of Expropriation Act
13(2.6)Nothing in this section shall diminish or detract from the right of the Minister to expropriate land at any time according to the Expropriation Act or to dispose of land according to section 12 of this Act.
Compensation for expropriated lands
13(3)Subject to subsection (5), where land within a public works development area is expropriated, the owner shall be compensated for that land as though the land were not in a public works development area.
Restrictions on owner within area
13(4)Unless the Minister gives his written consent to the owner of land in a public works development area, that owner shall not
(a) construct any building or improvement on the land,
(b) make any addition or alteration to a building on the land, or
(c) renovate any building or improvement on the land,
whereby there is involved a cost in excess of five thousand dollars in any year, but nothing in this subsection prohibits an owner from making ordinary repairs to his buildings.
Restrictions on owner within area
13(5)If an owner contravenes subsection (4), nothing shall be allowed to the owner for any increase in value resulting therefrom.
Notice to owners within area
13(6)The Minister shall cause to be registered in the proper registry office a notice to the persons who appear from the records of that registry office to be the owners of the lands in a public works development area at the time the lands became affected by this section, that the lands are so affected.
Notice to owners within area
13(7)Where lands formerly within a public works development area are no longer within that area, the Minister shall cause to be registered in the proper registry office a notice to all persons appearing on the records of that registry office to be the owners of those lands that those lands are no longer within the public works development area.
1965, c.34, s.3; 1973, c.72, s.1; 1983, c.72, s.1
SCHEDULE A
The portion of the City of Fredericton bounded as follows:
COMMENCING at the point of intersection of the prolongation Northeasterly of the centre line of Regent Street with the bank or shore of the Saint John River; thence Southwesterly along the said centre line to the centre line of Queen Street; then Southeasterly along the centre line of Queen Street to the intersection thereof with the prolongation Northeasterly of the centre line of Camperdown Lane; thence Southwesterly along the said prolongation of and the centre line of Camperdown Lane to the intersection thereof with the centre line of King Street; then Northwesterly along the centre line of King Street to the centre line of Regent Street; thence Southwesterly along the centre line of Regent Street to the centre line of George Street; thence Southeasterly along the centre line of George Street to the intersection thereof with the centre line of St. John Street; thence Northeasterly along the centre line of St. John Street 193 feet to the prolongation of the rear lot lines of properties fronting on George Street; thence Southeasterly along these rear lot lines 282 feet to the Northwesterly sideline of lot #5, 750 Brunswick Street, owned by Luke Morrison; thence Southwesterly 50 feet along said sideline to the rear of lot #5; thence Southeasterly along said rear lot line 54 feet; thence Northeasterly 55 feet along the Southeasterly sideline of lot #5 to the original mid block line 165 feet from both George and Brunswick Streets; thence Southeasterly 132 feet along the mid block line, being the rear line of lots fronting on Brunswick Street, to the rear line of lot #2, 171 Church Street, owned by C. W. Vail, 133 feet distant from Church Street; thence Northeasterly along the rear lot lines of properties fronting on Church Street 198 feet or to the centre line of Brunswick Street; thence Northwesterly 3 feet along the centre line of Brunswick to the prolongation of rear lot line of properties fronting on Church Street; thence Northeasterly along said rear lot lines, some 136 feet distant from Church Street, 396 feet to the centre line of King Street; thence Southeasterly along the centre of King Street to the centre of Church Street; thence Northeasterly along the centre line of Church Street and the prolongation thereof to the bank or shore of the Saint John River; thence Northwesterly along the said bank or shore of the Saint John River to the place of beginning.
1965, c.34, s.3; 1973, c.72, s.2
N.B. This Act is consolidated to February 9, 2017.