Acts and Regulations

84-112 - Legal Aid

Full text
Document at 19 January 2012
NEW BRUNSWICK
REGULATION 84-112
under the
Legal Aid Act
(O.C. 84-407)
Filed June 1, 1984
Under section 20 of the Legal Aid Act, the Lieutenant-Governor in Council makes the following Regulation:
1This Regulation may be cited as the Legal Aid Regulation - Legal Aid Act.
2In this Regulation
“applicant” means a person who applies for a legal aid certificate;
“certificate” means a legal aid certificate and includes an amended legal aid certificate;
“client” means a person holding a valid legal aid certificate;
“Council” means the Council of the Law Society of New Brunswick;
“Fund” means the Legal Aid Fund established under subsection 7(1) of the Act;
“Legal Aid Committee” means the standing committee appointed under subsection 2(4) of the Act;
“Plan” means the plan known as Legal Aid New Brunswick established under subsection 2(1) of the Act;
“Society” Repealed: 90-7
“Solicitor” Repealed: 90-7
90-7
AREAS AND AREA DIRECTORS
3(1)For the purpose of administering the Plan, New Brunswick is divided into areas as set out in Schedule A.
3(2)A regional legal aid office may be established to serve more than one area.
4Each area director shall maintain a regional legal aid office that is
(a) in a convenient location, and
(b) open during hours sufficient for the business required to be performed,
as approved by the Provincial Director.
5Each area director shall:
(a) maintain and make available to the Provincial Director lists of members of the legal aid panels in his area including the addresses of their places of business;
(b) make reports, estimates and recommendations respecting the operation and administration of the Plan in his area as the Provincial Director may request; and
(c) perform such other duties as the Provincial Director may direct.
6Except in an area that is exempted from this section by the Legal Aid Committee, an area director shall not perform professional services for a client under a legal aid certificate.
7(1)The Provincial Director may call meetings of area directors to consider matters of common interest and to encourage uniformity of practice.
7(2)Area directors may be reimbursed out of the Fund for expenses reasonably incurred in attending the meetings referred to in subsection (1).
AREA LEGAL AID COMMITTEES
8Persons appointed to an area committee who are not members of the Law Society shall be selected so as to be representative of the community served by that committee.
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9An appointment to an area committee is for a term ending on the thirty-first day of March in the second year following the year of appointment and is renewable for further periods of two years.
10The area director for an area shall act as secretary of the area committee for that area but is not a member of the committee.
11(1)Where a member of an area committee wishes to resign, he shall submit his resignation in writing to the Provincial Director.
11(2)The Provincial Director shall report a vacancy on an area committee to the area director and to the Legal Aid Committee.
12Where a member of an area committee
(a) moves his residence and place of business out of the area for which he was appointed, or
(b) fails to attend three consecutive meetings without advising the committee of his inability to attend,
he is deemed to have resigned and the area director shall notify the Provincial Director of such deemed resignation.
13Where, in the opinion of the Council, a person appointed as a member of an area committee is no longer suitable to be a member thereof, the Council may remove him from office and shall so notify the Provincial Director and the area director for that area.
14(1)Meetings of an area committee may be called whenever necessary by the area director or by the chairman of the area committee.
14(2)Reasonable travelling expenses may be reimbursed by the Law Society out of the Fund, in accordance with subsection 7(2) of the Act, to a member of an area committee who must travel a total distance greater than sixteen kilometres to attend committee meetings.
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15Unless otherwise provided by the Council, a quorum of an area committee is three persons present in person, at least one of whom is a member of the Law Society.
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16At the first meeting of each area committee in each year, the area committee shall elect a chairman who shall hold office for that year.
17The chairman of an area committee has a vote on all questions before the committee and in the event of an equality of votes the chairman has a second and deciding vote.
18An area committee shall advise the area director with respect to any matter on which he requests its advice and may make recommendations on any such matter where it deems it advisable to do so.
LEGAL AID COMMITTEE
19(1)An appointment to the Legal Aid Committee is for a term of two years and is renewable.
19(2)The President of the Law Society is ex officio a member of the Legal Aid Committee.
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20A member of the Legal Aid Committee who wishes to resign shall tender his resignation in writing to the Council.
21(1)The Council shall appoint a member of the Legal Aid Committee to be chairman of the Committee.
21(2)Meetings of the Legal Aid Committee shall be called by the chairman, but in the absence or incapacity of the chairman the President of the Law Society may call meetings.
21(3)In the absence of the chairman at a meeting of the Legal Aid Committee, the members present shall select a member to be acting chairman for that meeting.
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22A quorum of the Legal Aid Committee is four members present in person.
23The chairman of the Legal Aid Committee has a vote on all questions before the Committee and in the event of an equality of votes the chairman has a second and deciding vote.
24A matter may be dealt with by the Legal Aid Committee notwithstanding a change in the constitution of the Committee subsequent to the initiation of that matter before the Committee.
LEGAL AID PANELS
25A solicitor who is entitled under subsection 14(1) of the Act to have his name entered on a panel established under the Act may submit an application in Form 1 to the area director.
26A solicitor whose name has been entered on a panel may have his name removed upon written request to the area director and, subject to section 30, shall complete the work that he has undertaken under the Act.
26.1(1)On or after April 1, 1994, the Provincial Director may remove from a panel the name of any solicitor who was on the panel on March 31, 1994 and has not entered an agreement with the Law Society respecting the provision of legal aid for the fiscal year of the Province beginning on April 1, 1994.
26.1(2)The removal of the name of a solicitor from a panel under subsection (1) shall be deemed to have been done at the request of the solicitor, and section 26 applies to the completion of the work that the solicitor has undertaken under the Act.
94-37
27Where a matter respecting the suitability of a solicitor on a panel comes to the attention of an area director, he
(a) may, on giving notice to the solicitor, remove the name of the solicitor from a panel for cause and shall disclose to the solicitor at the time of notice the reasons for his removal from the panel, and
(b) shall report the matter or a removal and the reasons for the removal, as the case may be, to the Provincial Director within twenty-four hours.
28(1)Where the Provincial Director
(a) becomes aware of any matter respecting the suitability of a solicitor on a panel,
(b) receives a report from an area director pursuant to section 27,
(c) is notified by the Council that a notice of complaint relating in whole or in part to the operation of the Plan has been served by them on a solicitor, or
(d) learns that a criminal charge relating in whole or in part to the operation of the Plan has been laid against a solicitor,
he may, on notice to the solicitor,
(e) affirm the removal by an area director of a solicitor’s name from a panel, or
(f) remove the name of a solicitor from a panel,
and in every case he shall forthwith conduct an investigation into the matter.
28(2)Where the Provincial Director removes or affirms the removal of the name of a solicitor from a panel, he shall, within twenty-four hours,
(a) advise the solicitor of the case against him, and
(b) notify the appropriate area director and area committee.
29(1)A solicitor whose name has been removed from a panel may, at any time, make application to the chairman of the area committee in the area in which his name was removed to have his name restored.
29(2)Where the chairman of an area committee receives an application made under subsection (1), he shall
(a) convene a meeting of the committee within ten days to determine whether the name of the solicitor should be restored to a panel and whether any conditions should attach to the restoration, and
(b) allow the solicitor to show cause at the meeting why his name should be restored to a panel.
29(3)Where an area committee determines that the name of a solicitor should not be restored to a panel, the solicitor may, at any time, make application to the chairman of the Legal Aid Committee to have his name restored.
29(4)Where the chairman of the Legal Aid Committee receives an application made under subsection (3), he shall
(a) where the next scheduled monthly meeting of the Committee is not more than ten days from the day on which the application is filed, cause the matter to be considered at such meeting to determine whether the name of the solicitor should be restored to a panel and whether any conditions should attach to the restoration, or
(b) where the next scheduled monthly meeting of the Committee is more than ten days from the day on which the application is filed, convene a meeting of the Committee within ten days to determine whether the name of the solicitor should be restored to a panel and whether any conditions should attach to the restoration,
and allow the solicitor to show cause at the meeting why his name should be restored to a panel.
29(5)Where a solicitor has applied unsuccessfully to an area committee and to the Legal Aid Committee to have his name restored to a panel, he may, at any time, petition the Council to have his name restored.
29(6)Where the Council receives a petition made under subsection (5), the President of the Law Society shall
(a) cause the matter to be considered at the next scheduled monthly meeting of the Council that is not less than ten days from the day on which the petition is filed, to determine whether the name of the solicitor should be restored to a panel and whether any conditions should attach to the restoration, and
(b) allow the solicitor to show cause at the meeting why his name should be restored to a panel.
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30A solicitor whose name has been removed from a panel shall
(a) when requested, deliver any legal aid file in his possession to the area director, and
(b) report to the area director on the state of any incomplete work,
and may render an account for fees and disbursements.
31Where a solicitor whose name has been entered on a panel is unable for any reason to undertake legal aid during a period exceeding ten days, he may inform the area director who shall cause the non-availability of such solicitor to be noted accordingly on all copies of such panel.
32Nothing in this Regulation discharges a solicitor whose name has been removed from a panel from his obligations to his clients and to the Law Society.
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FIDELITY INSURANCE
33The Law Society may procure and maintain fidelity insurance covering such employees as the Law Society may determine and any premium payable shall be paid out of the Fund.
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LEGAL AID APPLICATIONS
34(1)An application for legal aid shall be in writing in Form 2.
34(2)An applicant shall provide such information as is required in order to complete Form 2 and shall sign a consent to inspect assets in Form 3.
35Where an applicant for legal aid for civil proceedings is not ordinarily resident in New Brunswick, the area director to whom the application is made shall make such inquiries and investigation as he can into the nature of the matter and the means of the applicant and shall forward the application with a report on his inquiries and investigation to the Provincial Director who, subject to section 10 of the Act, may authorize the area director to issue a certificate.
36An area director may require that an application for legal aid for an infant, a mentally incompetent person as defined in the Infirm Persons Act or a patient as defined in the Mental Health Act be made on that person’s behalf by a parent, guardian, relative, friend, committee or the Public Trustee appointed under the Public Trustee Act, as the circumstances require.
2008-60
37Where, in accordance with subsection 11(1) of the Act, it appears to an area director that an application may be disposed of more conveniently in another area or where the legal aid applied for can be rendered more conveniently and economically in another area, he may forward to the area director of the other area the application together with any other documentation and information available to him, in which case the area director to whom the application is forwarded shall proceed as if the application had been made to him by the applicant in the first instance.
38Without limiting the generality of section 12 of the Act, every application for legal aid shall be considered by the area director receiving it and if under the circumstances, including questions of law or fact arising out of the applicant’s claim to relief or defence or the nature of the matter sought to be dealt with by a solicitor,
(a) it appears that
(i) the applicant requires legal aid in a matter in which he is concerned in a representative, fiduciary or official capacity and it appears the costs can be paid out of any property or fund which is sufficient to pay such costs,
(ii) the applicant is entitled to financial or other aid or has reasonable expectations of such aid and has failed to satisfy the area director that such aid is not available to him,
(iii) the legal aid applied for is frivolous, vexatious, an abuse of the process of the court or an abuse of the facilities provided by the Act,
(iv) the relief sought can bring no benefit to the applicant over and above the benefit that would accrue to him as a member of the public or some part thereof,
(v) the relief sought, if obtained, is not enforceable in law,
(vi) the applicant has failed without reasonable justification in any obligation to the Law Society with respect to legal aid, or
(vii) the professional services sought are available to the applicant without legal aid,
he shall refuse to issue a certificate to the applicant, or
(b) it appears that
(i) the applicant is one of a number of persons having the same interests under circumstances where one or more may sue or defend on behalf of or for the benefit of all,
(ii) the applicant has the right to be joined in an action as plaintiff with one or more other persons having the same right to relief by reason of there being a common question of law or fact to be determined,
(iii) the application is for legal aid for which the applicant has previously received a certificate with respect to the same action or matter,
(iv) the relief sought is enforceable only in some other jurisdiction,
(v) the cause of action may be prosecuted or defended only in a court of some other jurisdiction, or
(vi) no sufficient reason for the granting of the certificate is shown at the particular time,
he may refuse to issue a certificate to the applicant.
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39The financial eligibility of an applicant for legal aid shall be determined by the rules set out in Schedule B.
40(1)Where an area director determines under subsection 11(6) of the Act that the applicant can pay some part of the cost of the legal aid applied for, he shall require the applicant to enter into an agreement in Form 4 before issuing a certificate.
40(2)Where an area director determines that the applicant can pay no part of the cost of the legal aid applied for, he shall require the applicant to enter into an agreement in Form 5 before issuing a certificate.
41Where an area director refuses to issue or amend a legal aid certificate or determines that he will issue a certificate on condition that the applicant make a contribution to the cost of the legal aid applied for, he shall notify the applicant in Form 6 and shall furnish the applicant with Form 7 and, where appropriate, Form 4.
42(1)Where an applicant wishes to appeal a decision referred to in section 41, he shall complete Form 7 and deliver it to the office of the area director whose decision is being appealed.
42(2)The area director or the Provincial Director, as the case may be, shall inform the applicant as to the disposition of the appeal in Form 8 or in Form 9 and the area director shall implement the decision of the area committee or the Provincial Director.
SECURITY FOR DEBTS
43(1)Where a person is obligated to pay an amount to the Law Society under the Act and the Act authorizes security to be taken, the debt may be secured by the deposit of security, including mortgages, chattel mortgages and promissory notes.
43(2)Where a person secures an obligation to the Law Society as authorized in subsection (1), the Provincial Director or his agent shall prepare a memorandum of the transaction in Form 10 and shall deliver a copy of the memorandum to the person securing the obligation to the Law Society.
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44(1)Where an applicant who is unable to contribute towards the cost of legal aid has an estate or interest in any land in New Brunswick, an area director may require, as a condition of issuing a certificate, that the applicant execute a Certificate of Lien in Form 27 and register the Certificate of Lien in the registry office of the county in which the land mentioned therein is situated.
44(2)Where an area director requires an applicant to execute a Certificate of Lien, the area director shall deliver or transmit a copy of the Certificate of Lien to the Provincial Director.
44(3)The registrar of deeds shall register the Certificate of Lien in the property index and the lien shall appear as an encumbrance against the land or the estate or interest in the land mentioned in the Certificate of Lien.
44(4)Upon registration of a Certificate of Lien, the Law Society has a lien upon the land or the estate or interest in the land mentioned therein for an amount equal to the sum of the disbursements made in proceedings taken on the applicant’s behalf and the value of the professional services provided to the applicant, as set out in Schedule C, to the extent that such amount remains unpaid from time to time, and the Certificate of Lien need not specify this amount.
44(5)Where a person discharges his obligation to pay the cost of legal aid given to him, the lien mentioned in this section is discharged and the Provincial Director shall forthwith deliver or transmit a Certificate of Discharge in Form 28 to the person who executed the Certificate of Lien and to the registry office where the Certificate of Lien is registered.
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LEGAL AID CERTIFICATES
45A certificate shall be in Form 11.
46(1)Where a certificate has been issued for a proceeding referred to in section 12 of the Act, the area director may qualify the certificate to indicate that no civil proceedings may be taken pursuant to such certificate until the solicitor accepting it has furnished to the area director his written opinion that it is reasonable under all the circumstances for him to commence, defend or continue the proceeding and that the area director has authorized him to proceed.
46(2)Where the initial step in a proceeding is required by a statute, rule of law or practice to be taken immediately if the rights of the applicant are to be preserved, a solicitor may take the initial step but shall not take any further step until he has furnished the opinion required by subsection (1).
47(1)Subject to subsection (2), a certificate shall bear the date of the day on which the applicant submitted his application to the area director and shall set out the nature and extent of the services to be rendered on the applicant’s behalf, the amount of his contribution to the cost of professional services, if any, and any restriction or limitation imposed by the area director.
47(2)Where an area director is satisfied that it is just and proper to do so, he may issue a certificate retroactively to a person eligible for legal aid and to whom a solicitor has rendered legal services.
48(1)An area director shall deliver or send the certificate to the applicant or, at his request, to the solicitor of the applicant’s choice.
48(2)A solicitor who agrees to perform services under a certificate shall as soon as is possible and in any event within ten days complete and sign the solicitor’s acknowledgment and undertaking on the appropriate copy of the certificate and return it to the area director.
48(3)Where for any reason a solicitor is unable or unwilling to act, he shall return the certificate forthwith to the holder of the certificate or to the area director as the circumstances require.
48(4)Where a solicitor agrees to act for a client under a certificate, he shall as soon as is practicable require the client to execute a directive in Form 12.
49Where an applicant satisfies an area director that a certificate issued to him has been lost or destroyed, a replacement certificate shall be issued bearing the same date and authorization as the one lost or destroyed.
50(1)Subject to subsection (2), a solicitor is not entitled to be paid for any service unless that service is authorized by a certificate.
50(2)Where an initial step or steps in a proceeding are required by a statute, rule of law or practice to be taken immediately if the rights of a client are to be preserved, a solicitor may take that initial step or steps but shall not take any further step until the certificate has been amended to authorize him to proceed.
51(1)Where a client wishes to have his certificate amended, he may apply in person or by his solicitor.
51(2)Where a client is represented by a solicitor, the area director may require the solicitor to provide an opinion, orally or in writing, as to the merits of the application before deciding whether to amend the certificate as requested.
51(3)Where an area director determines that a certificate issued by him or by a former area director for that area ought to be amended, he shall issue a further certificate showing on its face that it amends and replaces the certificate previously issued and shall send it to the client’s solicitor who shall complete and sign the appropriate copy of the amended certificate and return it together with the replaced certificate forthwith to the area director.
52(1)Where a solicitor is notified by his client that the client wishes to change his solicitor or where a solicitor is no longer able or willing to represent the client and the client has been so notified, notice of the termination of the solicitor and client relationship shall be given to the area director by both parties.
52(2)Where a solicitor and client relationship has been terminated and the legal aid for which a certificate was issued has not been completed, the client may apply for a new certificate.
(a) a solicitor completes all services authorized under a certificate,
(b) a solicitor and client relationship is terminated in a manner referred to in subsection (1),
(c) a solicitor is of the opinion that no further useful work can be done for the client, or
(d) a client has directed the solicitor not to proceed further,
the solicitor shall forthwith
(e) report to the area director in writing in Form 13 or in Form 14,
(f) submit his account and supporting material in accordance with section 80, and
(g) except in a case where the certificate has been cancelled, deliver to the client a copy of the report required by paragraph (e) and, upon obtaining a receipt therefor, all papers, documents and other property of the client in his possession.
53(1)Where a judgment or an order as to costs is made in favour of a client, the certificate authorizing legal aid to be given in the matter shall authorize the solicitor to take such steps to collect the amount of any judgment and costs as are reasonable in the circumstances.
53(2)Where a solicitor is in doubt as to the reasonableness of a step in the collection of a judgment or costs, he may obtain the approval of the area director before proceeding.
54A solicitor, who represents a client in whose favour a settlement or an order as to judgment or costs is made, shall draw to the attention of his client the provisions of section 16 of the Act relating to the repayment of costs, disbursements and fees for professional services and shall transmit a copy of the directive signed pursuant to subsection 48(4) to the person or persons from whom the money, property or costs is recoverable and to the solicitor or solicitors of such person or persons.
55(1)A certificate shall not be cancelled until a notice in writing in Form 15 is served on the client and his solicitor, fixing a place and time, not less than seven days from the mailing of the notice, at which the client may show cause why the certificate should not be cancelled.
55(2)Where an area director cancels a certificate, he shall give written notice of cancellation in Form 16 forthwith to the person whose certificate has been cancelled and to his solicitor, and the solicitor, upon receipt of the notice, shall deliver the person’s file to the area director.
55(3)Where an area director cancels a certificate, he shall report thereon to the Provincial Director and shall forward the person’s file to the Provincial Director.
56Where any circumstance comes to the attention of a solicitor which indicates that his client may not have been entitled or may no longer be entitled to the certificate under which the solicitor is acting, the solicitor shall forthwith report such circumstances to the area director.
57(1)Where an area director has issued a certificate and thereafter ascertains that in his opinion
(a) the client is able to pay some part of the legal aid authorized by the certificate, or
(b) it is proper that the client pay a greater or lesser part of the cost of the legal aid than is provided for in the certificate,
he may amend the certificate by varying the terms of contribution and may require the client to execute an agreement in Form 17.
57(2)Except where the amendment of a certificate is to the advantage of a client, a certificate shall not be amended under this section until notice in writing in Form 18 is served on the client and his solicitor, fixing a place and time, not less than seven days from the mailing of the notice, at which the client may show cause why the certificate should not be amended.
57(3)Where a client fails or refuses to sign an agreement to pay in accordance with the amended certificate within five days after the time fixed in subsection (2) to show cause, the area director may cancel his certificate.
DUTY COUNSEL
58Panels of duty counsel shall be established by area directors in each area.
59(1)Where a person has been taken into custody or summoned and charged with an offence, he may obtain, before any appearance to the charge, the assistance of duty counsel who shall advise him of his rights and take such steps as the circumstances require to protect his rights, including representing him on an application for remand or adjournment or for bail or on the entering of a plea of guilty and making representations with respect to sentence where a plea of guilty or a conviction is entered.
59(2)Where a person has been convicted of an offence, he may obtain at a stage preparatory to a criminal appeal the assistance of duty counsel in the completion of Forms 19 and 20, in bail applications, and in such other matters as the Provincial Director may require.
59(3)A person is entitled to the assistance of duty counsel notwithstanding that he has not been issued or is ineligible to receive a certificate.
59(4)A person who is detained is entitled to consult with duty counsel by telephone.
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60A duty counsel shall submit to the area director at the end of each week a report in Form 21 or Form 22 on each person assisted during that week.
61(1)Subject to subsection (2), except in an area or part of an area exempted from this section by the Legal Aid Committee, a duty counsel or person associated with him in the practice of law shall not act in the same matter for a person whom that duty counsel has represented or advised as duty counsel unless with the prior approval of the Provincial Director.
61(2)In an area or part of an area not exempted under subsection (1), a duty counsel or a person associated with him in the practice of law may subsequently act for a client in a matter in which duty counsel has previously represented or advised him as duty counsel where duty counsel certifies in writing in Form 23 to the area director that a prior solicitor and client relationship existed between the client and himself or between the client and the person associated with him in the practice of law.
62Subject to the approval of the Provincial Director, an area director may designate one or more duty counsel to assist him in the operation of his office and in carrying out the provisions of this Regulation.
63(1)The Legal Aid Committee, with the approval of the Council, may establish legal aid clinics and may designate existing legal aid clinics as approved clinics for the purpose of this Regulation.
63(2)Where the Legal Aid Committee has established a legal aid clinic or has designated an existing legal aid clinic as an approved clinic, the area director for the area in which the clinic is operated may assign duty counsel to assist in the operation of the clinic.
EMPLOYMENT OF COUNSEL
64(1)Where, in the opinion of a solicitor acting for a client, the matters or proceedings for which legal aid has been authorized require the assistance of other counsel, he may apply in writing to the Provincial Director, who may authorize him to employ counsel.
64(2)An application referred to in subsection (1) shall state
(a) the extent of the services to be performed by counsel, and
(b) the reasons why such services are required.
64(3)Authority to employ counsel shall be in writing and shall specify the extent of the services to be performed by counsel thereunder.
64(4)Counsel may be selected from any legal aid panel in any area, but shall not be a person associated in the practice of law with the solicitor employing him except with the prior approval of the Provincial Director.
64(5)Where authority has been granted to employ counsel at trial or on the hearing of an appeal, the solicitor employing such counsel may attend at such trial or at the hearing of such appeal to assist counsel.
SERVICE OF DOCUMENTS
65(1)A written notice or other document directed or permitted to be served on an applicant or client may be served by prepaid registered mail addressed to that person at his address last known to the area director and service is deemed to be made at the time of mailing.
65(2)A written notice or other document directed or permitted to be served on a solicitor may be served by delivering the notice or other document to his office, or by prepaid mail addressed to him at his office and service is deemed to be made at the time of mailing.
65(3)A written notice or other document directed or permitted to be served on the Provincial Director or on an area director may be served by delivering the notice or other document to his office, or by prepaid mail addressed to him at his office and service is deemed to be made at the time of mailing.
SOLICITORS
66The customary solicitor and client relationship shall exist between a solicitor and his client and nothing in this Regulation shall be construed to vary the customary relationship.
67No area director, duty counsel or official or employee of the Law Society engaged in carrying out duties under the Plan shall suggest or recommend to any person any solicitor to act for him in any matter or proceeding.
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STUDENT LEGAL AID SOCIETIES
68The Legal Aid Committee, with the approval of the Council, may establish or approve the establishment of student legal aid societies.
69The Legal Aid Committee, by itself or through designated supervisors, shall have the control and supervision of student legal aid societies established or approved under section 68, together with its members, and may
(a) determine the functions of a society and its members,
(b) determine the minimum qualifications of a student for membership in a society and the extent of participation of each member of a society, and
(c) terminate the participation in the Plan of a member of a society or of a society, either temporarily or permanently.
70An area director may request that a student legal aid society
(a) provide assistance to duty counsel and panel solicitors rendering legal aid services, and
(b) provide assistance to a person, where for reasons other than financial reasons the person is refused a certificate.
71A member of a student legal aid society who has successfully completed two years of his law course may, with the approval of a designated supervisor of the society and subject to his control and direction, represent and appear on behalf of a person if he has the consent of that person and if he is entitled in law to appear on his behalf.
REPORTS AND FINANCIAL
72At the request of the Provincial Director or an area director, a solicitor who has undertaken to render legal aid shall provide such information with respect to that legal aid as the Provincial Director or area director may require.
73Each area director shall keep accounting and other records and make remittances in the manner required by the Provincial Director.
74Each area director shall report weekly to the Provincial Director respecting:
(a) the name and address of each person to whom a certificate has been issued;
(b) the amount that each person to whom a certificate has been issued is required to contribute to the Fund and the terms of payment;
(c) the amount of the contributions received and by whom paid; and
(d) such further information as the Provincial Director may require.
75Each area director shall report to the Provincial Director not later than the tenth day of April in each year on the business and finances of his office for the preceding year ending on the thirty-first day of March.
76The Provincial Director, at such times as requested by the Legal Aid Committee or as required by the Council and in any event on the fifteenth day of October in each year, shall report to the Legal Aid Committee and to the Council on the position of the Fund on the thirtieth day of September of that year stating:
(a) the amount paid into the Fund in accordance with an appropriation by the Legislature;
(b) the amount received as a result of contributions required to be made to the Law Society under section 11 of the Act and paid into the Fund;
(c) the amount received as a result of payments made to the Law Society under section 16 of the Act and paid into the Fund;
(d) the amount of income received from any other source;
(e) the amount expended for the costs of administration and operation of the Plan;
(f) the balance on hand and on deposit to the credit of the Fund;
(g) other information the Legal Aid Committee may require; and
(h) other information the Provincial Director considers appropriate.
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77The Provincial Director shall report to the Legal Aid Committee and to the Council not later than the thirtieth day of April in each year for the preceding fiscal year on:
(a) the number of applications for legal aid received and the number of certificates issued;
(b) the number of persons assisted by duty counsel;
(c) the amount received by way of contributions under section 11 of the Act;
(d) the amount received by way of payments under section 16 of the Act;
(e) the amount received pursuant to appropriation by the Legislature;
(f) the amounts paid out under section 7 of the Act;
(g) the balance, if any, in the Fund on the thirty-first day of March after making provision for all outstanding accounts payable;
(h) other information required by the Legal Aid Committee; and
(i) such other information as the Provincial Director considers appropriate.
BANKING
78(1)The Council shall designate a chartered bank or federally incorporated trust company in which an account for the Fund shall be established and all money paid to or received in respect of the Fund shall be deposited forthwith.
78(2)Every payment out of the Fund shall be made by a cheque drawn on the account referred to in subsection (1) and in accordance with the provisions of subsection (3).
78(3)The signing officers for the account referred to in subsection (1) shall be any two of the President of the Law Society, the Vice-President of the Law Society, the Secretary of the Law Society, the Treasurer of the Law Society and the Provincial Director.
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SOLICITORS’ REMUNERATION
79(1)Where a solicitor provides professional services authorized under the Act, he shall be paid out of the Fund an amount equal to the value of the services rendered and an amount equal to his proper out-of-pocket disbursements in the matter in which legal aid was given, as determined in Schedule C.
79(2)No payment shall be made to a solicitor in settlement of his account for services unless an account has been submitted, settled and approved for payment in accordance with the Act and this Regulation.
79(3)Repealed: 2008-45
90-7; 94-37; 2008-45
80(1)Where a solicitor is directed to submit his account pursuant to subsection 52(3), he shall submit forthwith to the Provincial Director:
(a) an account in duplicate of his fees and disbursements showing the date on which each service was performed, one copy of which shall bear the following certificate signed by him:
“I certify that the legal aid herein was rendered by me or by such other named person as is specifically stated herein and that the disbursements set out herein were paid or liability therefor incurred and were necessary and proper”;
(b) a copy of the certificate;
(c) any other written authorization for legal services or the expenditure of money;
(d) the accounts of any agent or counsel engaged which have been prepared in accordance with this section and certified in accordance with paragraph (a);
(e) where prior to the issue of the certificate the solicitor was employed by the client to perform any services with respect to the same matter, a detailed statement of the services rendered by the solicitor and any disbursements made by him prior to the issue of the certificate and a statement of any payment made by the client to the solicitor on account of his fees and disbursements;
(f) a copy of the solicitor’s legal aid report submitted to the area director; and
(g) such further or other supporting material as is required by the Provincial Director.
80(2)A solicitor, when submitting the material required by subsection (1), shall submit
(a) a copy of his account to the area director and to the client, and
(b) a copy of the material referred to in paragraph (1)(e) to the client.
80.1Where a solicitor has not completed all the services authorized under a certificate for civil legal aid issued before April 1, 1988, the solicitor shall submit a report before April 1, 1990 to the Provincial Director, indicating the services completed, the services to be completed and the date that the services are expected to be completed.
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81(1)Where a solicitor submits an account under section 80 to the Provincial Director more than sixty days after the completion of the services covered by the account, there shall be no liability for payment of the account and the Provincial Director shall not settle the account but shall return the account promptly to the solicitor with an appropriate reference to this section.
81(2)Where a solicitor submits an account under section 82 to the Provincial Director more than sixty days after the completion of the services covered by the account, there shall be no liability for payment of the account and the area director shall not settle or approve the account but shall return the account promptly to the solicitor with an appropriate reference to this section.
81(3)Notwithstanding subsections (1) and (2), the Provincial Director, in his discretion, may extend the time during which a solicitor’s account may be submitted under section 80 or 82.
81.01(1)Notwithstanding any other provision of this Regulation, a solicitor shall ensure that an account under section 80 or 82 for services performed and completed during a fiscal year of the Province is submitted to and received by the Provincial Director no later than fifteen days after the end of that fiscal year.
81.01(2)Where a solicitor has not completed all the services authorized under a certificate for legal aid by the end of a fiscal year of the Province, the solicitor shall, notwithstanding any other provision of this Regulation, ensure that an interim account for services performed during that fiscal year is submitted to and received by the Provincial Director no later than fifteen days after the end of that fiscal year and shall ensure that the account is clearly identified as an interim account.
81.01(3)Section 80 applies with the necessary modifications to an interim account submitted under this section.
81.01(4)Notwithstanding subsection (3), paragraph 80(1)(b) does not apply to an interim account submitted under this section.
81.01(5)Where the Provincial Director receives an account from a solicitor more than fifteen days after the end of a fiscal year of the Province for services performed by the solicitor during that fiscal year, there shall be no liability for payment of the account and the Provincial Director shall not settle or approve the account but shall return the account promptly to the solicitor with an appropriate reference to this section.
81.01(6)Notwithstanding subsection (5), the Provincial Director, in the Provincial Director’s discretion, may extend the time during which a solicitor’s account may be submitted under this section.
95-56
81.1(1)A solicitor shall submit an account under section 80 before April 1, 1990 in relation to a certificate for civil legal aid issued before April 1, 1988.
81.1(2)Subsection (1) does not apply where a report is submitted under section 80.1.
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81.2The Provincial Director may refuse to pay an account presented for payment in relation to a certificate for civil legal aid issued before April 1, 1988 where
(a) a solicitor has not submitted an account under section 80 before April 1, 1990, or
(b) a solicitor has not submitted a report under section 80.1 before April 1, 1990.
90-13
81.3Where a solicitor is required to submit an account under this Regulation, the solicitor shall ensure that the original, and not a faxed, account is submitted.
95-56
82(1)A solicitor acting as duty counsel may submit to the area director for the area in which he has performed his duties an account in duplicate stating the time during which and the places at which he was engaged as duty counsel together with a claim for expenses.
82(2)The area director shall review the account and shall forward it to the Provincial Director with whatever recommendation as to payment he considers appropriate.
83Where a solicitor providing legal aid under a certificate makes proper out-of-pocket disbursements, he may apply to the Provincial Director for reimbursement thereof prior to the submission of his account under section 80.
84(1)The Provincial Director may disallow in whole or in part fees for:
(a) proceedings that are
(i) unreasonably taken or prolonged,
(ii) not calculated to advance the interests of the client, or
(iii) incurred through negligence;
(b) the preparation of any document that is improper, unnecessary or of unreasonable length;
(c) preparation that is unreasonable in its nature, scope or with respect to the time expended; or
(d) work left in an incomplete state owing to circumstances which, in the opinion of the Provincial Director, are primarily the responsibility of the solicitor.
84(2)Where the Provincial Director settles an account, he shall forthwith send to the solicitor who rendered it the duplicate copy thereof and a notice of settlement of account in Form 24, showing the disposition he has made of the items therein and certifying the amount at which it is settled and the amount payable pursuant to section 79.
85(1)Where a solicitor is dissatisfied with the settlement of his account, he may apply for a review thereof by the Provincial Director.
85(2)An application for review of a settlement of an account shall be in writing and shall set out the items objected to and the grounds of the objection and shall be made to the Provincial Director not later than ten days after the date of his certification under subsection 84(2).
85(3)The Provincial Director shall review and confirm or vary the settlement and shall inform the solicitor within ten days of his receipt of the application for review as to his disposition of the matter.
86(1)Where a solicitor is dissatisfied with the review made by the Provincial Director respecting the settlement of his account, he may appeal to the Legal Aid Committee.
86(2)An appeal under subsection (1) shall be commenced by the service of a notice of appeal in Form 25 upon the Provincial Director within ten days after the mailing of the decision of the Provincial Director respecting the review appealed from.
86(3)Upon receipt of the notice of appeal, the Provincial Director shall request a hearing of the appeal before the Legal Aid Committee.
87(1)The chairman of the Legal Aid Committee shall set a date and location for the hearing of an appeal under section 86 and shall give reasonable notice to the Provincial Director and to the solicitor initiating the appeal.
87(2)The solicitor and the Provincial Director may appear at the hearing of the appeal in person or by counsel.
88(1)The Legal Aid Committee shall dispose of each appeal from a review of the settlement of a solicitor’s account and may affirm, increase or decrease the amount approved by the Provincial Director.
88(2)Upon receipt of the decision of the Legal Aid Committee, the Provincial Director shall settle and approve the account in accordance with the decision.
89Where the Provincial Director is satisfied that the solicitor has performed his duties under subsections 16(6), (7) and (8) of the Act and under sections 53 and 54 of this Regulation and that
(a) the account has been settled and approved at not less than the amount for which it was rendered,
(b) the time for application for review of the settlement of an account has elapsed and no application for review has been received,
(c) the time for appealing from a review has elapsed and no appeal has been taken, or
(d) an appeal from a review has been disposed of,
he shall authorize payment to be made out of the Fund.
RECOVERIES UNDER AWARDS
AND SETTLEMENTS
90(1)A solicitor acting for a client in a matter, at a trial or on a settlement of an action or proceeding may, with the prior approval of the Provincial Director, agree to
(a) waive the right to costs,
(b) accept a lesser fixed sum for costs, or
(c) consent to the amount at which costs are to be taxed.
90(2)Where a solicitor effects a settlement on behalf of a client entitling the client to recover money or other property, he shall forthwith inform the Provincial Director in detail of the terms of the settlement.
91(1)Pursuant to section 16 of the Act, the Provincial Director shall determine the amount payable by a client and shall give notice to the client and to his solicitor of the amount due to the Law Society.
91(2)A client who is dissatisfied with the determination of the Provincial Director may, within fourteen days of service of the notice referred to in subsection (1), apply for a review thereof by the Provincial Director.
91(3)The Provincial Director shall review and confirm or vary the determination and shall inform the client within ten days of his receipt of the application for review as to his disposition of the matter.
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92(1)Where a client is dissatisfied with a review made by the Provincial Director under subsection 91(3), he may appeal to the Legal Aid Committee.
92(2)An appeal under subsection (1) shall be commenced by the service of a notice of appeal in Form 26 on the Provincial Director within thirty days after the mailing of the decision of the Provincial Director as to the review appealed from.
92(3)Upon receipt of a notice of appeal, the Provincial Director shall request a hearing of the appeal before the Legal Aid Committee.
93(1)The chairman of the Legal Aid Committee shall set a date and location for the hearing of an appeal and shall give reasonable notice to the Provincial Director and to the client initiating the appeal.
93(2)The client and the Provincial Director may appear at the hearing of the appeal in person or by counsel.
94The Legal Aid Committee shall dispose of every appeal referred to in sections 92 and 93 and may affirm, increase or decrease the amount determined by the Provincial Director.
PAYMENT OF COSTS OF UNASSISTED PERSONS
95(1)Where proceedings have been taken or defended by a client and the costs thereof have been awarded by a court against him, he may apply to the Provincial Director for payment out of the Fund of the costs so awarded.
95(2)Where the client fails to apply for payment within ninety days, the person to whom such costs are awarded may make an application for payment of the costs out of the Fund.
96(1)The Provincial Director may refer an application under section 95 to the Legal Aid Committee for its recommendation.
96(2)The Provincial Director and the Legal Aid Committee may make such inquiries and hear such submissions with respect to an application as it considers necessary.
MISCELLANEOUS
97The Provincial Director may extend the time for doing any act or taking any proceeding under this Regulation and this function may be exercised although the application to extend is not made until after the expiration of the time prescribed.
98(1)Where an area director receives a complaint that a solicitor has failed to carry out his duties with respect to legal aid, he shall investigate the complaint and shall report the complaint and the results of his investigation to the Provincial Director.
98(2)Where an area committee receives a complaint that a solicitor has failed to carry out his duties with respect to legal aid, it shall investigate the complaint and report to the Provincial Director or shall refer the complaint to the area director.
98(3)Where the Provincial Director receives a complaint that a solicitor has failed to carry out his duties with respect to legal aid, he shall investigate the complaint or shall refer the complaint to the appropriate area director.
98(4)Where the Provincial Director receives a report of an investigation into a complaint, he may make such further investigation as he considers appropriate and may deliver the complaint, report and the results of any investigation to the Legal Aid Committee and to the Council, as he considers necessary.
99No person who is appointed or employed under the Act or this Regulation shall disclose any information furnished by or about an applicant for or recipient of legal aid other than for the purpose of the proper administration of the Act and this Regulation.
100(1)No solicitor has a lien for his fees, charges or expenses for legal aid upon property or papers in his possession that belong to a client.
100(2)Nothing in subsection (1) shall be deemed to deprive a solicitor of his lien on the property and papers in his possession for fees, charges and expenses that the client was liable to pay to him for professional services rendered prior to the issuance of a certificate and not covered therein.
101In any fiscal year of the Plan, a solicitor shall not agree to perform services under more than seventy-five certificates unless this provision is waived in writing by the Provincial Director.
102Regulation 71-114 under the Legal Aid Act is repealed.
103This Regulation comes into force on August 1, 1984.
SCHEDULE A
  
Area 1 - 
Saint John, Charlotte and Kings Counties
 
Area 2 - 
Westmorland, Albert and Kent Counties
 
Area 3 - 
York, Sunbury and Queens Counties and that portion of the Province, also included in Area 5, consisting of the Parish of Ludlow in Northumberland County
 
Area 4 - 
Carleton and Victoria Counties and that portion of the Province, also included in Area 3, consisting of the Parishes of Canterbury and North Lake in the County of York
 
Area 5 - 
Northumberland County, except the Parish of Alnwick
 
Area 6 - 
Gloucester County and that area of Northumberland County known as the Parish of Alnwick
 
Area 7 - 
Madawaska County and that portion of the Province, also included in Area 4, consisting of the Parishes of Drummond and Grand Falls in the County of Victoria
 
Area 8 - 
Restigouche County
SCHEDULE B
RULES FOR DETERMINING FINANCIAL ELIGIBILITY FOR LEGAL AID
1In these Rules
“adult” means a person sixteen years of age or over;
“applicant” means a person who has applied for legal aid;
“dependant” means a dependent child or a dependent adult;
“dependent adult” means an adult who is substantially supported by the applicant and includes the spouse;
“dependent child” means a person under sixteen years of age living with or supported by the applicant;
“disposable income” means the income of an applicant, his or her spouse and his or her dependants after deducting from income as calculated under Rule 3 the living expenses as calculated under Rule 4;
“liquid assets” includes cash, bonds, stocks, debentures, any other assets that can be converted readily into cash and the beneficial interest in assets held in trust and available to be used for maintenance, but does not include real property, the amount remaining to be paid under a mortgage or agreement of sale or the cash surrender value of a life insurance policy;
“spouse means” an adult who is cohabiting in a conjugal relationship with the applicant, whether married to the applicant or not.(conjoint)
2The ability of a person to pay no part, some part or the whole of the cost of the legal aid applied for shall be determined with reference to the assets and liabilities and income and expenses of the applicant, his or her spouse and his or her dependants.
3For the purpose of determining the income of the applicant, his or her spouse and his or her dependants, income includes
(a) salaries, wages and commissions;
(b) business, professional, farming, fishing and rental income after deducting reasonable expenses;
(c) investment income;
(d) pensions received under the Old Age Security Act, chapter O-6 of the Revised Statutes of Canada, 1970, and the Canada Pension Plan Act, chapter C-5 of the Revised Statutes of Canada, 1970;
(e) allowances received under the War Veterans Allowance Act, chapter W-5 of the Revised Statutes of Canada, 1970, the Civilian War Pensions and Allowances Act, chapter C-20 of the Revised Statutes of Canada, 1970, and the Pension Act, chapter P-7 of the Revised Statutes of Canada, 1970;
(f) Workers’ Compensation Board payments received under the Workers’ Compensation Act;
(g) unemployment insurance benefits received under the Unemployment Insurance Act, 1971, chapter 48 of the Statutes of Canada, 1970- 71-72;
(h) alimony, separation and maintenance payments;
(i) forty percent of the income received from any person for board;
(j) regular payments received under any annuity, pension or insurance scheme;
(k) regular payments received from a mortgage, agreement of sale or loan agreement;
(l) welfare payments received from the Province of New Brunswick or a private welfare agency; and
(m) benefits received directly or indirectly from any other source except those specified in paragraphs (n) and (o);
and does not include
(n) casual earnings of dependent children; and
(o) family allowances received under the Family Allowances Act, 1973, chapter 44 of the Statutes of Canada, 1973-74.
4For the purpose of determining the requirements and the living expenses of the applicant, his or her spouse and his or her dependants, living expenses include:
(a) a basic living allowance for purposes of meeting the cost of food, clothing, household supplies and personal requirements;
(b) shelter expenses including, where applicable, rent, mortgage principal and interest, property taxes, property insurance and necessary maintenance;
(c) income tax, unemployment insurance and pension contributions, union dues and like levies;
(d) utilities including fuel, electricity, water and telephone;
(e) transportation expenses necessary to the earning of income or attendance at school, exclusive of depreciation of motor vehicles;
(f) medical, optical, dental and hospital costs including payments made to any recognized medical or hospital insurance scheme;
(g) life insurance premiums;
(h) reasonable charitable donations;
(i) instalment payments on debts incurred prior to the date of application for legal aid; and
(j) other expenses as approved by the Provincial Director.
5In determining whether an applicant can pay no part, some part or the whole of the cost of the legal aid applied for, an area director shall consider:
(a) in respect of disposable income available, that the applicant has available for contribution a sum equal to the monthly amount of disposable income available, multiplied by eighteen, or the annual amount of disposable income available multiplied by one and one-half;
(b) in respect of liquid assets, that the applicant has available for contribution the aggregate of the full value of the liquid assets owned by him or her, his or her spouse and any of his or her dependants, after deducting therefrom the value of the debts and liabilities of the applicant, his or her spouse and any of his or her dependants which must be paid from these liquid assets, other than encumbrances on real property and the debts referred to in paragraph (i) of Rule 4;
(c) in respect of any life insurance policy on the life of the applicant, his or her spouse or his or her dependants, that the applicant has available for contribution the amount of the cash surrender value of the policy less the sum of one hundred dollars;
(d) in respect of any interest or estate owned by the applicant, his or her spouse or dependants in real property used by him or her as his or her own dwelling place, that the applicant has available for contribution any portion of the value of the estate or interest that, in the opinion of the area director, exceeds the needs of the applicant, his or her spouse and his or her dependants, after deducting therefrom the value of all encumbrances thereon and the necessary expenses of disposition of those encumbrances;
(e) in respect of any interest or estate owned by the applicant, his or her spouse or any of his or her dependants in any other real property, that the applicant has available for contribution the full value of the interest or estate after deducting therefrom the value of all encumbrances thereon and the necessary expenses of the disposition of those encumbrances; and
(f) in respect of any interest owned by the applicant, his or her spouse or any of his or her dependants in a motor vehicle or other chattel, that the applicant has available for contribution any portion of the value of that interest that, in the opinion of the area director, exceeds the needs of the applicant, his or her spouse and dependants.
6Where within twelve months preceding the date of application or at any date subsequent to application an applicant, his or her spouse or any of his or her dependants has made or makes an assignment or transfer of any interest in liquid assets or real property and, in the opinion of the area director, the consideration for the assignment was or is inadequate and the assignment or transfer was or is made for the purpose of qualifying the applicant for legal aid, the area director may determine that the applicant can pay an increased part of the cost of the legal aid taking into account the value of the asset or property so disposed of less the value of the consideration received.
2008, c.45, s.11
SCHEDULE C
LEGAL AID TARIFF
90-7
PART I
FEES IN CRIMINAL MATTERS INDICTABLE OFFENCES
Indictable Offences within the exclusive jurisdiction of The Court of Queen’s Bench of New Brunswick under section 469 of the Criminal Code (Canada)
1Preparation for preliminary inquiry and preparation for trial including interviews with the accused and witnesses -
(a) per hour
(i) solicitors with less than 2 full years of membership in the Law Society.............. $48.00
(ii) solicitors with 2 full years and less than 5 full years of membership in the Law Society .............. $54.00
(iii) solicitors with 5 full years or more of membership in the Law Society.............. $60.00
(b) to a maximum of:
(i) for first and second degree murder.............. $2,219.00
(ii) for all others.............. $1,187.00
2Counsel fee at preliminary inquiry -
  per half day.............. $144.00
3Counsel fee at trial -
(a) per half day.............. $252.00
(b) junior counsel with approval of the Provincial Director -
  per half day.............. $72.00
Indictable Offences other than those within the exclusive jurisdiction of The Court of Queen’s Bench of New Brunswick under section 469 of the Criminal Code (Canada) -
4Preparation for preliminary inquiry, where applicable, and preparation for trial, including interviews with the accused and witnesses -
(a) per hour
  - the fees set out in item 1(a) of this Part
(b) to a maximum of:
(i) for attempted murder.............. $1,187.00
(ii) for manslaughter.............. $1,187.00
(iii) for sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, or aggravated sexual assault.............. $1,187.00
(iv) for criminal negligence causing death.............. $1,187.00
(v) for armed robbery.............. $1,187.00
(vi) all others.............. $1,032.00
5Counsel fee at preliminary inquiry -
  per half day.............. $108.00
6Counsel fee at trial in The Court of Queen’s Bench of New Brunswick -
  per half day.............. $180.00
7Counsel fee at trial before a judge of The Court of Queen’s Bench of New Brunswick without a jury or a judge of the Provincial Court under Part XIX of the Criminal Code (Canada), other than in respect of trials for offences under section 553 -
  per half day.............. $144.00
8Where the trial is before a judge of the Provincial Court for an offence under section 553 of the Criminal Code (Canada) -
(a) for all services, including attendances for adjournment, applications for bail, preparation for trial and counsel fee at trial.............. $360.00
(b) where a plea of guilty is entered, for all services .............. $144.00
Application for Bail or Reduction of Bail on behalf of a person charged with an Indictable Offence -
9Application under section 522 of the Criminal Code (Canada) to a judge of The Court of Queen’s Bench of New Brunswick, for all services incidental to the application, including drawing notice of motion, affidavits, attendances, justifications by surety or sureties or entering into recognizance -
(a) per hour
  - the fees set out in item 1(a) of this Part
(b) to a maximum of.............. $281.00
10When application for bail is made before a judge of the Provincial Court for the services referred to in item 9 of this Part -
(a) per hour
  - the fees set out in item 1(a) of this Part
(b) to a maximum of.............. $234.00
Adjournments -
11Attendance on any necessary adjournment..............$50.00
(A solicitor is not entitled to a fee for more than one adjournment before the same judge obtained during the same half day)
Preventive Detention -
12Preparation for an application under sections 753 and 754 under the Criminal Code (Canada), for preventive detention including interviews and other necessary services -
(a) per hour
  - the fees set out in item 1(a) of this Part
(b) to a maximum of.............. $1,187.00
13Counsel fee on application -
  per half day.............. $180.00
Appeals to The Court of Appeal of New Brunswick -
14Drawing and filing Notice of Appeal and supporting documentation.............. $108.00
15Preparation, including Statement of Points of Law and Fact intended to be argued, where appeal is against sentence only -
(a) per hour
  - the fees set out in item 1(a) of this Part
(b) to a maximum of.............. $258.00
16Preparation, including Statement of Points of Law and Fact intended to be argued and including supplementary Notice of Appeal, where appeal is against conviction and sentence or conviction only -
(a) per hour
  - the fees set out in item 1(a) of this Part
(b) to a maximum of.............. $516.00
17Counsel fee on appeal -
  per half day.............. $216.00
Appeals to the Supreme Court of Canada in respect of all matters -
18Fee for
(a) drawing Application for Leave to Appeal and preparing case.............. $108.00
(b) preparation, including Statement of Points of Law and Fact, on Application for Leave to Appeal -
(i) per hour
  - the fees set out in item 1(a) of this Part
(ii) to a maximum of.............. $774.00
19Application before a judge for admission to bail including drawing of Notice of Motion, affidavits, attendances incidental to the application, preparation of recognizances, execution thereof and justification by surety or sureties -
(a) per hour
  - the fees set out in item 1(a) of this Part
(b) to a maximum of.............. $310.00
20Drawing, filing and serving Notice of Appeal.............. $216.00
21Preparation including factum -
(a) per hour
  - the fees set out in item 1(a) of this Part
(b) to a maximum of.............. $1,290.00
22Counsel fee on Appeal and Leave to Appeal -
  per half day.............. $252.00
SUMMARY CONVICTION OFFENCES
23Fee
(a) for all services in respect of offences triable on indictment or on summary conviction, e.g. dangerous operation of a motor vehicle, where the Crown elects to proceed as for a summary conviction offence, including all attendances for adjournment, application for bail, preparation and counsel fee at trial.............. $288.00
(b) where a plea of guilty is entered, for all services .............. $144.00
24Fee
(a) for all other summary conviction offences and for provincial offences, including attendances for adjournments, application for bail, preparation and counsel fee at trial.............. $216.00
(b) where a plea of guilty is entered, for all services .............. $144.00
25Appeal from a summary conviction or from a conviction of provincial offence by way of trial de novo, stated case or other review, including preparation of necessary documentation, application, attendances, preparation for appeal and counsel fee -
(a) preparation per hour
  - the fees set out in item 1(a) of this Part
(b) to a maximum of.............. $294.00
(c) counsel fee per half day.............. $216.00
26Application to a judge for bail pending appeal, including all material, preparation, attendances, preparing recognizance and justification of sureties.............. $252.00
YOUNG OFFENDERS ACT (CANADA)
Proceedings and Prosecutions under the Young Offenders Act (Canada) -
27Fees in respect of all matters other than appeals to be in the discretion of the Provincial Director who shall take into consideration the fees set out in this Part according to the circumstances out of which the proceedings or prosecution arose.
Appeals under the Young Offenders Act (Canada) -
28Preparation and service of Notice of Application for Leave to Appeal.............. $ 72.00
29Counsel fee on Application for Leave to Appeal and on appeal before The Court of Appeal of New Brunswick -
(a) preparation and service of Notice of Application for Leave to Appeal.............. $ 50.00
(b) preparation of Application for Leave to Appeal including preparation of Memorandum of Fact and Law -
(i) per hour
  - the fees set out in item 1(a) of this Part
(ii) to a maximum of.............. $294.00
(c) counsel fee on Application for Leave to Appeal -
  per half day.............. $216.00
(d) preparation and service of Notice of Appeal.............. $72.00
(e) preparation of appeal, including Memorandum of Fact and Law -
(i) per hour
  - the fees set out in item 1(a) of this Part
(ii) to a maximum of.............. $294.00
(f) counsel fee on appeal -
  per half day.............. $216.00
EXTRAORDINARY REMEDIES
Certiorari, Habeas Corpus, Motion to Quash, Mandamus and Prohibition -
30Preparation, including preparing, serving and filing Notice of Motion, affidavits and all other necessary material and counsel fee on hearing the motion..............$576.00
EXTRADITION AND FUGITIVE OFFENDERS
31Attendance for necessary adjournment before the judge.............. $36.00
32Preparation for hearing -
(a) per hour
  - the fees set out in item 1(a) of this Part
(b) to a maximum of.............. $444.00
33Counsel fee on hearing -
  per half day.............. $216.00
OTHER MATTERS
34When requested by the area director or the area committee, the Provincial Director may allow a fee to a solicitor for the preparation of an opinion, for an additional opinion or for attendance of the solicitor to make further submissions.
35An allowance may be made for time spent in travelling, up to a maximum of six hours per day, at a rate of $43.00 per hour where the solicitor satisfies the Provincial Director that the travel was reasonable and necessary under the circumstances, but in no case shall an allowance be made where the distance travelled is less than sixteen kilometres from the solicitor’s office.
36In a matter, proceeding, action or appeal not dealt with in this Part, the Provincial Director shall allow a reasonable fee and in determining the fee properly payable in respect of such matter, proceeding, action or appeal, the Provincial Director shall have regard to the fees in this Part for comparable services.
90-7
PART II
FEES FOR DUTY COUNSEL
IN CRIMINAL MATTERS
1For performance of duties as duty counsel under sections 59 and 62 of this Regulation -
(a) per hour
  - the fees set out in item 1(a) of Part I
(b) to a maximum of $187.00 per day, except where an increase is approved by the Provincial Director.
2An allowance may be made for the time reasonably and properly spent by a solicitor in travelling to and from the place where the duties of the solicitor are performed in accordance with item 35 of Part I.
90-7
PART III
FEES IN CIVIL MATTERS
The basic rate is forty-three dollars per hour including performance of duties of civil duty counsel.
The Court of Queen’s Bench of New Brunswick, Trial Division, the Federal Court, other actions and applications -
1For any action from commencement to conclusion leading to a default judgment, including all interviews and entry of judgment, and assignment to legal aid, the sum of two hundred dollars.
2Preliminary interviews, advising and receiving instructions for the commencement or defence of a proceeding, maximum of one and one-half hours.
3Preparation and delivery of all pleadings leading to trial or of all notices and affidavits leading to hearing, maximum of three hours.
4Preparation of Affidavit of Documents, maximum of two hours.
5Preparation for examination for discovery, maximum of one hour for each hour of the examination for discovery.
6Attendance on examination for discovery, the prescribed hourly rate with minimal allowance of one hour.
7Motions -
(a) where there is an uncontested motion or a motion is made without notice, all services including preparation of Notice of Motion or Notice of Preliminary Motion, maximum of three hours;
(b) where there is a contested motion, all services including preparation of Notice of Motion or Notice of Preliminary Motion, maximum of five hours.
8All other preliminary matters for preparation for a trial or hearing, including necessary correspondence, negotiations and adjournments, attendance at a pre-trial conference and preparation during the trial or hearing, maximum of ten hours for each of the first two days of the trial or hearing and five hours for each succeeding day of the trial or hearing.
9Trial record and setting down for trial, preparing, serving and filing Notice of Trial and attendance at opening -
(a) party having carriage of action.............. $125.00
(b) all other parties.............. $65.00
10Counsel fee at trial or hearing, the prescribed hourly rate.
11Matters subsequent to trial or hearing -
(a) correspondence, preparing, settling, signing and entering judgment and filing a Memorandum of Satisfaction of Judgment.............. $65.00
(b) correspondence, preparing, settling, signing and entering order subsequent to a hearing.............. $65.00
(c) preparation for and attendance on an assessment of a bill of costs, correspondence, maximum of two hours.
12Enforcement of Judgment or Order -
(a) issuing an enforcement order and filing with a sheriff.............. $45.00
(b) each proceeding under the Arrest and Examinations Act, Garnishee Act or any other proceedings with respect to enforcing a judgment or an order including necessary searches .............. $125.00
Uncontested Matrimonial
13Undefended Divorce Proceedings -
(a) all matters including preliminary attendances, preparing and presenting a Petition for Divorce, services, all other necessary matters preliminary to trial, including correspondence, motions, discovery, preparation for trial, setting down for trial, counsel fee at trial and all necessary matters subsequent to trial, including obtaining Decree Absolute, costs, attendance on an assessment of a bill of costs and issuing an Order for Seizure and Sale.............. $300.00
(b) motion for substituted service or motion for extension of time for service of a Petition for Divorce.............. $65.00
14Advising a respondent, person-named or child of the marriage in an undefended divorce proceeding in respect to all necessary matters including all court attendances, prescribed hourly rate to a maximum of four hours.
Contested Matrimonial
15Preparation for contested matrimonial preparation fees prescribed by items 1 to 12.
16Variation of Decree Nisi -
(a) where uncontested, maximum of three hours;
(b) where contested, maximum of five hours.
17Enforcement of Order -
(a) issuing an Order for Seizure and Sale under Rule 72.25 of the Rules of Court, preparation fees as prescribed by item 12;
(b) each application under Rule 72.25 of the Rules of Court.............. $125.00
Applications under the Marital Property Act
18All preparations including preliminary interviews, correspondence, preparation of financial statements and other required documents and interim applications and preparation for trial, maximum of six hours for the first one-half day of trial and three hours for each succeeding one-half day of trial.
19Counsel fee at trial on contested basis, prescribed hourly rate.
20Counsel fee where the trial is uncontested or where a consent order is made, as to all claims.............. $125.00
21Preparation for all other proceedings, preparation fees prescribed by items 2 to 12.
Separation Agreements and Domestic Contracts
22All services for negotiating, drafting and settling a marital separation agreement, a domestic contract or both.............. $150.00
Proceedings under the Child and Family
Services and Family Relations Act
23Subject to item 49, preparation for an application which is uncontested.............. $200.00
24Subject to item 49, preparation for an application which is contested, preparation fees prescribed by items 1 to 12.
Adoption Proceedings and
Change of Name Proceedings
25For all services in an uncontested adoption proceeding.............. $125.00
26For all services on application for a change of name under the Change of Name Act..............$125.00
Small Claims
27Preparation of -
(a) Claim.............. $20.00
(b) Dispute Note.............. $20.00
28Attendance at hearing.............. $ 40.00
Quasi-Judicial or Administrative
Boards or Commissions
29Preliminary interviews, advising and receiving instructions, preparation and correspondence, maximum of five hours.
30Counsel fee at hearing, prescribed hourly rate.
Bankruptcy
31Proceedings for all necessary professional services in bankruptcy proceedings including correspondence, subsequent to a receiving order or an authorized assignment, maximum of two hours.
Estate and Probate Matters
32Where any matter is uncontested, fees in accordance with the tariff of fees to be allowed solicitors under the Probate Court Act.
33Where any matter is contested, preparation fees prescribed by items 1 to 12.
Appeals to The Court of Queen’s Bench of New Brunswick, Trial Division or to the Federal Court
34Preparation fee, prescribed hourly rate to a maximum of five hours.
35Counsel fee on appeal, prescribed hourly rate.
Appeals to The Court of Appeal of New Brunswick or to the Federal Court of Appeal
36Proceedings preliminary to preparation of the Appeal Book and Appellant’s Submission or of the Respondent’s Submission -
(a) party appealing.............. $90.00
(b) respondent.............. $50.00
37Preparation of the Appeal Book and Appellant’s Submission or of the Respondent’s Submission, prescribed hourly rate to a maximum of ten hours.
38Counsel fee on appeal, prescribed hourly rate.
Appeals to the Supreme Court of Canada
39Drawing application for leave to appeal, notice of appeal, preparation of appeal case, including statement of points of fact and law and all other necessary preparation -
(a) maximum preparation time allowed for leave to appeal,
(i) to party appealing.............. fifteen hours,
(ii) to respondent.............. five hours;
(b) maximum preparation time allowed for appeal,
(i) to party appealing.............. thirty-five hours,
(ii) to respondent.............. fifteen hours.
40Counsel fee on application for leave to appeal, prescribed hourly rate.
41Counsel fee on appeal, prescribed hourly rate.
42Attendance on motion, the fee prescribed by item 9.
Other Matters
43For drawing documents wherever the subject matter or nature thereof is properly or customarily within the scope of the professional duties of a solicitor, preparation fee at the prescribed hourly rate.
44The Provincial Director may allow a fee to a solicitor for the preparation of an opinion, for an additional opinion or for his attendance to make further submissions when requested by the area committee or the area director.
45An allowance may be made for time spent in travelling, to a maximum of six hours per day, at a rate of forty-five dollars per hour where the solicitor satisfies the Provincial Director that the travel was reasonable and necessary under the circumstances, but in no case shall an allowance be made where the distance travelled is less than sixteen kilometres from the solicitor’s office.
46Subject to item 47, in any matter, proceeding, motion or appeal, not dealt with by this Schedule of Fees, the Provincial Director shall allow a reasonable fee and in determining the fee properly payable in respect of such matter, proceeding, motion or appeal, the Provincial Director shall have regard to the Schedule of Fees herein for comparable services.
47No fee shall be allowed for attendance at an adjournment unless the Provincial Director is of the opinion that such attendance and such adjournment were reasonable under all the circumstances.
48Written argument whenever ordered by a Judge, preparation fee at the prescribed hourly rate to a maximum of ten hours. Copy of argument must be attached in all cases.
49No fee shall be allowed for services provided for a person applying under the Child and Family Services and Family Relations Act for an order for support.
50No fee shall be allowed for services where the Crown is available to provide similar services.
PART IV
NOTES
Unless otherwise expressed, the following notes apply to Parts I, II and III wherever the Provincial Director considers it appropriate, taking into consideration the nature of the proceeding:
A.The fees provided for in Parts I and III shall normally apply for the legal aid covered thereby, but they may be increased by the Provincial Director in those cases where, in his opinion, an increase is justified, having regard to all the circumstances including the nature of the civil case, the nature of the offence, the complexity of the case and any other factor which would warrant an increased fee.
B.Where a trial or a hearing extends over two or more days, the Provincial Director may allow payment for reasonable and necessary preparation during the course of the trial or the hearing.
C.The solicitor shall prepare the solicitor’s account in accordance with the tariffs under this Schedule.
D.The Provincial Director may disallow payment in whole or in part of an account.
E.The Provincial Director may require proof and justification of all items included in an account, either by the production of time document entries or otherwise.
F.Where a solicitor represents two or more persons in proceedings arising out of the same circumstances, the solicitor is entitled to fees as for one client on one claim and such additional fees as may be appropriate to note I.
G.Repealed: 90-7
H.With regards to a civil matter, if an application for leave to appeal and the hearing of the appeal are heard at approximately the same time, the solicitor is entitled to fees for the appeal only.
I.With regards to a civil matter, where a solicitor can readily ascertain that the services authorized by a certificate, in the specific circumstances of a case, are sufficiently unusual or unique that the maximum allowed by the tariff is clearly inadequate, he shall forthwith advise the Provincial Director of the details of the case and an estimate of the time and services required in his opinion and where a solicitor fails to do so, this will be a factor in the settlement of the solicitor’s account.
J.The Provincial Director may allow interim billing, respecting an account for services which are ongoing and may allow payment for that part of the account.
90-7
PART V
FEES FOR SOLICITORS PROVIDING
SERVICES OF LAW CLERKS, ARTICLED
STUDENTS AND INVESTIGATORS
Fees for law clerks, articled students and investigators in the full- time employ of the solicitor, per hour.............. $15.00
Where Parts I and III provide a block fee for a particular service, the fee payable for such service shall be deemed to include any services provided by any one or more of a law clerk, articled student and investigator. Where all of such service has been provided by any one or more of such persons, the fee payable for such service is the lesser of the block fee or the amount produced by the application of the above hourly rate.
PART VI
SOLICITOR’S OUT-OF-POCKET DISBURSEMENTS
Every solicitor who has rendered legal aid shall be entitled to be paid in accordance with this Regulation the following out-of-pocket disbursements actually and reasonably incurred:
(a) disbursements, not being witness fees, required or permitted to be made pursuant to any statute, rule having statutory authority, regulation or order-in-council;
(b) subject to paragraph (h), witness fees and travelling expenses of witnesses in accordance with the statute, rule or regulation under which the proceeding is brought, and if no provision is made therein for witness fees, then in accordance with the Rules of Court; where a witness must be brought from outside the Province the prior approval of the Provincial Director must be obtained;
(c) fees payable to a court stenographer for a transcript of evidence taken on a preliminary inquiry, reasons for judgment or evidence for use on an appeal authorized by this Regulation to be taken;
(d) a solicitor’s travelling expenses where the distance travelled exceeds sixteen kilometres from his office;
(e) long distance telephone and telegraph charges;
(f) the fees and out-of-pocket disbursements of his out-of-town agent in New Brunswick for routine attendances and services except where the agent is acting as counsel;
(g) postage or express charges on the shipment of parcels of documents, transcripts of evidence or exhibits for use on an application to court or chambers or on an appeal;
(h) with the prior approval of the Provincial Director, the services of a person entitled by law or practice to give expert or opinion evidence may be engaged and the reasonable and proper fees paid therefor at the rate specified by the Provincial Director; and
(i) with the approval of the Provincial Director, any other proper out-of-pocket disbursements, including any deposit or other payment that may be required, made in furtherance of the proceeding or matter, which approval shall, except in an emergency, be obtained prior to such out-of-pocket disbursements being made.
2009-150
N.B. This Regulation is consolidated to December 1, 2009.