3(1)On the trial of an issue or of a matter or question, or on an inquiry arising in any suit, action or proceeding in a court, the parties thereto and the persons in whose behalf the action, matter or proceeding is brought or instituted, or opposed or defended, and the spouses of such parties and persons, are, except as hereinafter excepted, competent and compellable to give evidence either viva voce or by deposition according to the practice of the court, on behalf of either or any of the parties to the action, matter or proceeding.

14(1)Where a person called as a witness, or desiring to give evidence or required or desiring to make an affidavit or deposition refuses or is unwilling to be sworn on grounds of conscientious motives, the Court or person qualified to take affidavits or depositions shall permit such person, instead of being sworn, to make solemn affirmation by using the words,

14(2)Such solemn affirmation and declaration is of the same force and effect as if such person had taken an oath in the usual form.

20(1)A witness in any cause may be questioned as to whether he has been convicted of any crime; and upon being so questioned, if he either denies the fact or refuses to answer, the opposite party may prove such conviction.

20(2)A certificate containing the substance and effect only, omitting the formal part of the indictment or charge and conviction for such offence, purporting to be signed by the Registrar or the clerk of the court, or other officer having the custody of the records of the court, in or before which the offender was convicted, or by the deputy of such Registrar, clerk or officer, for which certificate a fee of one dollar and no more shall be paid, is, upon proof of the identity of the person, sufficient evidence of the said conviction without proof of the signature or official character of the person appearing to have signed the same.

24(1)Where in an action a child of tender years is tendered as a witness, and the child does not in the opinion of the court understand the nature of an oath, the evidence of the child may be received though not given upon oath, if in the opinion of the court the child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.

25(1)Notwithstanding any Act, regulation or rule of court, an Official Shorthand Reporter, Special Court Shorthand Reporter or other person, who is authorized to record evidence and proceedings in an action or a legal proceeding may record the evidence and proceedings

25(2)Notwithstanding any Act, regulation or a rule of court, a transcript of the whole or part of any evidence or proceedings that has been recorded in accordance with subsection (1) and that has been certified as a true report of the evidence or proceedings by the person who recorded the evidence or proceedings, or by the judge or other person who presided over the action or proceedings and that is otherwise admissible by law, is admissible in evidence whether or not the witness or any of the parties to the action or legal proceedings has approved the method used to record the evidence and proceedings and whether or not he has read or signed the transcript.

26(0.1)This section applies to evidence or proceedings before a board, commission, tribunal, body or commissioner.

26(1)Subject to subsection (3), where a transcript of evidence or proceedings recorded in accordance with subsection 25(1) has been made and certified in accordance with subsection 25(2), the Official Shorthand Reporter, Special Court Shorthand Reporter, or other person who recorded the evidence and proceedings may, after the expiration of thirty days from the day on which the transcript was made and certified, destroy the record or erase any recording thereof.

26(2)Subject to subsection (3), where a transcript of evidence or proceedings recorded in accordance with subsection 25(1) has not been made and certified in accordance with subsection 25(2), the Official Shorthand Reporter, Special Court Shorthand Reporter, or other person who recorded the evidence and proceedings, shall not destroy the record or erase any recording thereof for such period after it has been made as the Minister of Justice and Public Safety may by regulation prescribe, but after that period has expired, he may destroy the record or erase the recording thereof.

26(3)An interested person, without notice to any other person, may apply for an order providing for the preservation for a specified period of any record made under subsection 25(1).

26(4)Subject to subsection (4.1), any application for an order under subsection (3) is to be made to the board, commission, tribunal, body or commissioner before which or whom the evidence was given or the proceedings were held.

26(4.1)In the case of any record of evidence or proceedings before any board, commission, tribunal, body or commissioner that or who has ceased to have authority to act in the matter in respect of which the evidence was given or the proceedings were held, an application for an order under subsection (3) is to be made to the Minister of Justice and Public Safety.

26(5)The person to whom the application was made under subsection (4) or (4.1) may make such order as he deems proper under the circumstances.

26(6)Where an order made under subsection (5) is served on the person making or having possession of the record referred to in the order, that person shall preserve it for the period specified in the order.

29(1)A judge of The Court of Queen’s Bench of New Brunswick, upon application on affidavit of either party to a suit pending in his court, may issue an order under his hand and the seal of the court for bringing up before the court any prisoner confined in a jail, or person under any sentence or under commitment for trial, or under process in a civil suit, to be examined as a witness in such suit pending in such court; but the person having the custody of the prisoner is not bound to obey such order unless tender is made to him of a reasonable sum for the conveyance and maintenance of a proper officer or officers and of the prisoner, going to, remaining at and returning from such court.

29(2)After the person so in custody has testified, he shall be returned forthwith by the officer who has him in charge to the jail or prison, and such person shall, for the purpose of serving or completing the term of his imprisonment, be deemed to have remained continuously in such jail or prison, notwithstanding his having been taken therefrom as aforesaid as a witness.

29(3)No sheriff, jailer or other officer is liable to any action or prosecution for acting in obedience to any such order, and if sued he may plead the general issue and give such order in evidence thereunder.

35(1)In addition to all other cases where testimony in prior proceedings may now be lawfully received as evidence,

35(2)What purports to be a copy of the testimony or statement of such person and purports to have been printed by or on behalf of such court, commission, board, tribunal or body or by or on behalf of the Queen’s Printer or other official printer of Canada or a province thereof or the United States of America, or a state thereof or of Great Britain, is prima facie proof thereof.

35(3)What purports to be a transcript of the evidence or statement of such person produced from proper custody and purports to be certified by a shorthand reporter who recorded or transcribed such evidence or statement or purports to be certified by the presiding officer, is prima facie proof thereof.

43.2(1)Any privilege that exists in relation to any communication between a solicitor and client is not lost or waived because all or part of the communication is

43.2(2)The fact that any communication between a solicitor and client is prepared or made with the intention that it will be furnished or disclosed to the client’s auditor for the purpose of assisting the auditor in the performance of an audit does not prevent the creation of, or give rise to the waiver of, a privilege in relation to that communication.

43.3(1)In this section

43.3(2)A witness, whether a party to a legal proceeding or not, is excused from

43.3(3)Subsection (2) does not apply to

43.3(3.1)Paragraph (2)(c) does not restrict or displace any privilege that arises under section 43.1 or otherwise.

43.3(4)A committee referred to in subsection (2) does not include a medical advisory committee exercising its functions respecting surgical and other privileges of the medical staff.

43.3(5)Notwithstanding that a witness

45(1)If a party desires to give in evidence a telegraph message or despatch sent to the opposite party, or shown to be in his possession, and notice to produce the same has been given as in ordinary cases, and the same is not produced under the notice, such party may give secondary evidence thereof; and if such message or despatch is produced under the notice, it shall, if otherwise admissible, be received in evidence the same as an original document.

45(2)Evidence that any such message or despatch was delivered at a telegraph office, and received thereat for transmission shall be prima facie evidence that the same was transmitted in due course, and received by the person to whom it was addressed.

45(3)When any telegraph message or despatch is signed, addressed or written, or appears on its face to have been signed or addressed or written in whole or in part in figures or any number, word, name, phrase or sentence agreed upon or recognized by the sender and receiver of such message or despatch as meaning between them some other word, number, name, phrase or sentence, or as having any other than the ordinary or apparent meaning of such figure, number or word, such signature, address or writing shall, for the purposes of this and the last preceding two sections, be taken to be the word, number, name, phrase or sentence so agreed upon and recognized between the sender and receiver as aforesaid, and such message or despatch shall for all purposes be treated as though the same had been written, addressed and signed in full, according to the meaning agreed upon or recognized as aforesaid and so transmitted.

46(1)Subject to the provisions of this section a copy of an entry in any book or record kept in a bank shall in all actions be received as prima facie evidence of such entry and of the matters, transactions and accounts therein recorded.

46(2)A copy of an entry in such book or record shall not be received in evidence under this section unless it is proved that the book or record was at the time of the making of the entry one of the ordinary books or records of the bank and that the entry was made in the usual and ordinary course of business, and that the book or record is in the custody or control of the bank and that such copy is a true copy thereof, which proof may be given by the manager or accountant of the bank and may be given orally or by affidavit.

46(3)An officer of a bank shall not in any legal proceeding to which the bank is not a party be compellable to produce any book or record the contents of which can be proved under this section, or to appear as a witness to prove the matters, transactions and accounts therein recorded unless by order of a court or judge made for special cause.

46(4)On the application of any party to an action a court or judge may order that such party be at liberty to inspect and take copies of any entries in the books or records of a bank for any of the purposes of such proceedings.

46(5)Notice of an application under subsection (4) shall be served upon the person whose account is to be inspected at least two clear days before the hearing of the application; if it is shown to the satisfaction of the court or judge that such service cannot be effected, then such notice shall be served upon the bank.

46(6)The costs of an application to a court or judge under or for the purposes of this section, and the costs of anything done or to be done under an order of a court or judge made under or for the purposes of this section, shall be in the discretion of the court or judge, who may order the same or any part thereof to be paid to any party by the bank, where the same has been occasioned by any default or delay on the part of the bank, and any such order against a bank may be enforced as if the bank were a party to the proceeding.

47(1)In this section

47(2)Where a bill of exchange, promissory note, cheque, receipt, instrument, agreement, document, plan or a record or book or entry therein kept or held by any person is photographed in the course of an established practice of such person of photographing objects of the same or a similar class in order to keep a permanent record of it, a print from the photographic film is admissible in evidence in all cases and for all purposes for which the object photographed would have been admissible.

47(3)Where a bill of exchange, promissory note, cheque, receipt, instrument, agreement or other executed or signed document was destroyed by the person or an employee of the person before the expiration of six years from

47(4)Where the photographic print is tendered or made by a government or the Bank of Canada, subsection (3) does not apply.

47(5)Proof of compliance with the conditions prescribed by this section may be given by any person having knowledge of the facts either orally or by affidavit sworn before a notary public and unless the court otherwise orders, a notarial copy of any such affidavit is admissible in evidence in lieu of the original affidavit.

47.1(1)In this section and in section 47.2

47.1(2)Where a document kept or held by a person is copied by a process of electronic imaging or similar process and is recorded or stored electronically in the course of an established practice in order to keep a permanent record of the document, a printout of the document generated by or produced from a computer record or other electronic medium is admissible in evidence in all cases and for all purposes for which the original document would have been admissible.

47.1(3)A printout described in subsection (2) is not admissible in evidence unless

47.1(4)Proof of compliance with the requirements of this section may be given by any person who has knowledge, or who has informed himself or herself, of the facts, either orally or by affidavit sworn before a notary public, and unless the court otherwise orders, a notarial copy of any such affidavit is admissible in evidence in lieu of the original affidavit.

47.2(1)Where, in the normal course of business or affairs, a document that was created in electronic form by a person is recorded or stored electronically in order to keep a permanent record of the document, a printout of the document generated by or produced from a computer record or other electronic medium is admissible in evidence in all cases and for all purposes for which the document would have been admissible had it been created in a tangible form.

47.2(2)A printout described in subsection (1) is not admissible in evidence unless

47.2(3)Proof of compliance with the requirements of this section may be given by the author of the document or any other person who has knowledge, or who has informed himself or herself of the facts, either orally or by affidavit sworn before a notary public, and unless the court otherwise orders, a notarial copy of any such affidavit is admissible in evidence in lieu of the original affidavit.

50(1)Subject to subsection (2), a written report or finding of facts prepared by an expert not being a party to the cause, nor an employee of a party, except for the purposes of making such report or finding, nor financially interested in the result of the controversy, and containing the conclusions resulting wholly or partly from information furnished by the cooperation of two or more persons acting for a common purpose, is, in so far as the same may be relevant, admissible when testified to by the person, or one of the persons, making such report or finding without calling as witnesses the persons furnishing the information, and without producing the books or other writings on which the report or finding is based, if, in the opinion of the court, no substantial injustice will be done the opposite party.

50(2)Such report or finding is not admissible unless a reasonable time before offering the same in evidence the party offering it has given notice to the adverse party of his intention to offer it in evidence together with a copy of the report or finding, or so much thereof as may relate to the controversy, and has also afforded the adverse party a reasonable opportunity to inspect and copy any records or other documents in the offering party’s possession or control, on which the report or finding was based, and also the names of all persons furnishing facts upon which the report or finding was based, except that it may be admitted if the court finds that no substantial injustice would result from the failure to give such notice.

50(3)Any person who has furnished any information on which such report or finding is based may be called as a witness and cross-examined by the adverse party, but the fact that his testimony is not obtainable does not render the report or finding inadmissible, unless the court finds that substantial injustice would be done to the adverse party by its admission.

52(1)A copy of the record of any marriage or certificate registered under chapter 71 of the Consolidated Statutes, 1876, or any Act previous thereto, certified by the clerk of the peace of the county in which the same is registered, and a copy of any marriage certificate registered under chapter 5 of the Acts of 50 Victoria (1886) or any Act in amendment thereof, or under chapter 54 of the Consolidated Statutes, 1903, Respecting Registration of Births, Deaths and Marriages, certified by the Division Registrar or Provincial Registrar or the Deputy of the Provincial Registrar, under the last mentioned Act, or by the official having the legal custody of the record of such marriage, and a copy of any marriage certificate registered under the Public Health Act, 1918, or any regulation made thereunder, or under any amending Act concerning Vital Statistics in the Province certified by the Registrar General, or an officer deputed by him for that purpose, shall be prima facie evidence in any court of the facts therein stated without proof of appointment or signature.

52(2)A copy of the record of any birth or death registered under the provisions of chapter 54 of the Consolidated Statutes, 1903, Respecting Registration of Births, Deaths and Marriages or The Public Health Act, 1918, or chapter 131 of the Revised Statutes, 1927, or under any amending Act concerning vital statistics in the Province certified by the Registrar General or Division Registrar or by the official having the legal custody of the said record or any report published under section 20 of said chapter shall be prima facie evidence in any court of law in this Province of the facts therein stated.

52(3)The production of a certificate purporting to be signed by an authority authorized in that behalf by the National Defence Act, chapter N-4 of the Revised Statutes of Canada, 1970, or by regulations made thereunder, stating that the person named in the certificate died, or was deemed to have died, on a date set forth therein, is prima facie proof for any purpose to which the authority of the Legislature of New Brunswick extends, that the person so named died on that date, and also the office, authority and signature of the person signing the certificate, without any proof of his appointment, authority or signature.

52(4)The production of a certificate purporting to be signed by the officer in charge of records of the naval, military or air forces of Her Majesty raised by Canada, stating that the person named in the certificate was a member of any of those forces and was serving on active service during the period between the dates set forth therein, is prima facie proof for any purpose to which the authority of the Legislature of New Brunswick extends that the person so named was on active service during that period, and also of the office, authority and signature of the person signing the certificate, without any proof of his appointment, authority or signature.

63(1)Prima facie evidence of any proclamation, order, regulation or appointment made or issued by a Lieutenant-Governor or a Lieutenant-Governor in Council of this or any other Province of Canada, or of any Territory of Canada, or other Chief Executive Officer or Administrator for the time being of the Government of the Province or Territory, or by or under the authority of any member of the Executive Council, being the head of any department of the Government of the Province or Territory, may be given in any court or tribunal, and in all legal proceedings in respect of which the Legislature has authority to enact this provision, in any of the following modes:

63(2)All proclamations made by the Lieutenant-Governor proclaiming an enactment or any provision thereof into force shall be judicially noticed by all courts and judges in the Province.

70(1)Judicial notice shall be taken of

70(2)In this section “Imperial Parliament” means the Parliament of the United Kingdom of Great Britain and Northern Ireland, as at present constituted, or any former kingdom that included England, whether known as the United Kingdom of Great Britain and Ireland or otherwise.

76(1)Where upon the trial of an action a question arises as to the true meaning or construction of a Statute, Act or Ordinance of the Imperial Parliament, the Parliament of Canada or the Legislature of any Province, State or Territory within the British Dominions, or within the United States of America, the judge before whom such trial is pending shall decide such question in like manner as if the question had arisen under an Act of the Legislature of this Province.

76(2)When any such question so arises in respect to any Statute, Act or Ordinance of any Legislature, other than those referred to in subsection (1), it shall not be deemed misdirection in the judge to express his opinion to the jury upon the meaning or construction of such Statute, Act or Ordinance, in its bearing upon or application to the issue or matter before such judge for trial; or the judge may review and deal with the matter in like manner as if the question had arisen under an Act of the Legislature of this Province.

76(3)No evidence in relation to the construction or meaning of any foreign, Canadian or colonial law, that would be heretofore admissible, shall be excluded by reason hereof.

77(1)All judgments, decrees, orders, and other judicial proceedings of any court of justice in the United Kingdom of Great Britain and Northern Ireland as at present constituted or any former kingdom that included England whether known as the United Kingdom of Great Britain and Ireland or otherwise, or in any present, future or pre-existing foreign state, or in Canada or in any Province of Canada, or in any present, past or future British colony, and all affidavits, pleadings and other documents whether legal or otherwise, filed or deposited in any such court, may be proved in any court either by examined copies or by copies authenticated as hereinafter mentioned that is to say, the authenticated copy being admissible in evidence must either

77(2)If any of the aforesaid authenticated copies purport to be sealed or signed as hereinbefore respectively directed, the same shall respectively be admitted in evidence in every case in which the original document could have been received in evidence without proof of the seal, where a seal is attached, or of the truth of the statement attached thereto or thereon where no seal is attached, and without proof of the signature or the judicial character of the person purporting to have signed the statement where no seal is attached.

78(1)An oath, affidavit, affirmation or statutory declaration administered, sworn, affirmed or made outside New Brunswick before,

78(2)An oath, affidavit, affirmation or statutory declaration administered, sworn, affirmed or made outside New Brunswick before a notary public for New Brunswick or before a commissioner for taking affidavits within New Brunswick is as valid and effectual to all intents and purposes as if it had been duly administered, sworn, affirmed or made within New Brunswick before a commissioner for taking affidavits within New Brunswick.

78(3)A document that purports to be signed by a person mentioned in subsection (1) or (2) in testimony of an oath, affidavit, affirmation or statutory declaration having been administered, sworn, affirmed or made before him, and on which his office is shown below his signature, and

82(1)When a party is desirous of giving in evidence in any court a will duly admitted to probate, or a copy that has been duly registered and is relevant to the matter in question, he may produce in evidence a copy of such registry, certified by the registrar of deeds for the county where the same is registered, which copy shall be received and allowed as evidence of the contents of such will and prima facie of its validity and due execution, but before any such copy is allowed in evidence, at least ten days notice in writing shall be given to the adverse party, or the attorney or agent of such adverse party, of the intention to offer the same in evidence, such notice to be accompanied by a copy of such certified copy, the due service thereof being proved by affidavit or otherwise to the satisfaction of the court.

82(2)The costs of the certified copies provided for by this section and sections 80 and 81 together with the costs of the proceedings therewith connected, shall be taxed and allowed to the party procuring such copies, in case costs are awarded to him against the other party in such suit or proceeding.

85(1)Any notice of sale under a power contained in a mortgage, duly registered or filed under the provisions of the Registry Act with the certificate of proof and affidavit endorsed thereon, or attached thereto, with the certificate of the registrar thereon, as required and provided by the said Act or a copy of the registry thereof, if such notice is registered under the provisions of said Act, duly certified by the registrar, shall on production without further proof either of the signature to the notice or to the certificate of the proof or of the signature of the registrar, be received in all courts as prima facie evidence of the signing of the said notice by the person or persons purporting to have signed the same, or of the execution of such notice by a corporation as the case may be, and of the giving or publication of said notice, as set forth in such affidavit, but where a certified copy is offered, or intended to be given in evidence, notice thereof, as required by section 80 shall first be given, with an affidavit either that the original notice or instrument is not in the possession of the person offering the same, his agent or attorney, and that he does not know where the same is to be found, or that the same is on file in the registry office of the county where the lands lie.

85(2)Where such notice of sale has been executed under a power of attorney, it is necessary to prove the execution and the due registry or filing of such power of attorney, and such proof may be given by production of a copy of the registry of such power of attorney, duly certified by the registrar, or by the production of the original with a certificate of the registry or filing thereof by the registrar.

85(3)In case of a certified copy of the registry of such power of attorney the like notice shall be given of intention to offer the same in evidence as is required in the case of a certified copy of the notice of sale.

85(4)The signature of the registrar to any certificate mentioned in this section need not be proved.

90(1)When on the trial of any suit or complaint in any court it is necessary to prove the appointment of a parish or county officer, a certificate under the hand of the Minister of Environment and Local Government, stating the appointment, and the time and manner thereof, of any such parish or county officer, is sufficient proof of the appointment of such officer.

90(2)If any such certificate purports to be signed as aforesaid, the same shall be admitted in evidence without any proof of the signature or official character of the Minister of Environment and Local Government.