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1983, c.69, s.1

Definitions and interpretation

1(1)In this Act

“actuarial equivalent” means, in relation to a given benefit and an alternative benefit, the amount of the alternative benefit, in the required form, that is considered by the actuary appointed for the Plan by the Minister to be equal in value to the given benefit, on the basis of such actuarial assumptions and other appropriate factors as may be adopted from time to time by the Minister on the advice of the actuary;(équivalent actuariel)

“associate chief judge” means the associate chief judge of the court;(juge en chef associé)

“benefit” means an annuity under section 15 and includes a return of contributions under section 17.11 and a payment out of the Consolidated Fund under subsection 21(4) of the Provincial Court Judges’ Pension Act;(prestation)

“chairman” means the chairman of the Judicial Council;(président)

“chief judge” means the chief judge of the court;(juge en chef)

“common-law partner” means(conjoint de fait)

(a) in the case of the death of a judge

(i) if the judge did not make an election under subsection 15(5.01), (5.02) or (5.05), a person who, not being married to the judge, was cohabiting in a conjugal relationship with the judge at the time of the judge’s death and was cohabiting in a conjugal relationship with the judge for a continuous period of at least 2 years immediately before the judge’s death; or

(ii) if the judge made an election under subsection 15(5.01), (5.02) or (5.05), a person who, not being married to the judge, was cohabiting in a conjugal relationship with the judge on the date when the judge’s reduced annuity began to be paid and at the time of the judge’s death and was cohabiting in a conjugal relationship with the judge for a continuous period of at least 2 years immediately before the date when the judge’s reduced annuity began to be paid; or

(b) in the case of a division of a benefit under section 17.3, a person who, not being married to a judge or former judge, was cohabiting in a conjugal relationship with the judge or former judge for a continuous period of at least 2 years immediately before the date of the breakdown of their common-law partnership;

“common-law partnership” means the relationship between a judge and his or her common-law partner;(union de fait)

“court” means the Provincial Court;(Cour)

“deputy judge” Repealed: 1987, c.45, s.1(juge adjoint)

“holiday” means Saturday, Sunday, New Year’s Day, Good Friday, Easter Monday, Victoria Day, Canada Day, New Brunswick Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day, Boxing Day and any day appointed by any Statute in force in the Province or by Proclamation of the Governor-General or the Lieutenant-Governor as a general holiday within the Province and, whenever a holiday other than Saturday or Sunday falls on a Saturday or a Sunday, includes any day substituted for the holiday by the Province;(jour férié)

“judge” means a judge appointed under subsection 2(1) and includes a chief judge and an associate chief judge;(juge)

“Judicial Council” means the Judicial Council established under section 6.1;(Conseil de la magistrature)

“Minister” means the Minister of Justice and Consumer Affairs and includes any person designated by the Minister to act on the Minister’s behalf;(Ministre)

“panel” means a panel appointed under subsection 6.9(1);(comité)

“Plan” means the pension plan established in this Act.(Régime)

“spouse” Repealed: 2008, c.45, s.26

1(2)Where a reference is made in this Act to a person being, reaching or attaining a specified age or being under or over that age, the person shall be deemed to reach or to have reached the specified age at the beginning of the calendar month next following the calendar month in which he or she actually reached or will reach that age.

1969, c.17, s.1; 1970, c.41, s.1; 1980, c.43, s.1; 1985, c.66, s.1; 1987, c.45, s.1; 1995, c.6, s.1; 1997, c.56, s.3; 1998, c.35, s.3; 2000, c.P-21.1, s.39; 2000, c.6, s.1; 2003, c.19, s.1; 2006, c.16, s.144; 2008, c.45, s.26

Status as a common-law partner

1.01To establish that he or she is a common-law partner, a person shall provide the Chairman of the Board of Management with a statutory declaration accompanied by proof acceptable to the Chairman.

2008, c.45, s.26

Determination of date of marriage or common-law partnership

1.1(1)Subject to subsections (2) and (3), for the purposes of this Act and the regulations, the date of marriage of a judge and his or her spouse is

(a) if they were married to each other, the date on which they were married,

(b) if they were parties to a voidable marriage, the date on which they were married, or

(c) if they were parties to a void marriage, the date on which they went through a form of marriage.

1.1(2)If, by reason of the operation of subsection (1), more than one date could be the date of marriage of 2 persons, the date of marriage of the 2 persons shall be deemed to be the earlier or earliest of those dates.

1.1(3)If a judge was cohabiting in a conjugal relationship with his or her spouse immediately before their marriage, the date of marriage shall be deemed to be the date on which they commenced to cohabit in a conjugal relationship.

1.1(4)For the purposes of this Act and the regulations, the date of common-law partnership of a judge and his or her common-law partner is the date on which they commenced to cohabit in a conjugal relationship.

1998, c.35, s.3; 2008, c.45, s.26

Deemed cohabitation where illness or mental or physical infirmity

1.2If a judge and the person with whom the judge was cohabiting in a conjugal relationship are no longer cohabiting by reason only of the illness or mental or physical infirmity of either of them, they shall be deemed to continue to be cohabiting in a conjugal relationship.

2008, c.45, s.26

Power of Cabinet to appoint judge

2(1)The Lieutenant-Governor in Council may appoint one or more persons to be judges of the court.

2(2)The Lieutenant-Governor in Council may appoint a judge appointed under subsection (1) to be the chief judge and another judge appointed under subsection (1) to be the associate chief judge.

2(3)The chief judge and the associate chief judge shall be appointed for a term of 7 years and are eligible for reappointment for one or more additional terms.

1969, c.17, s.2; 1980, c.43, s.2; 1987, c.45, s.2; 2000, c.6, s.2; 2008, c.42, s.1

Qualifications of judge

3No person is eligible to be appointed a judge of the court unless the person is a barrister and solicitor of The Court of Queen’s Bench of New Brunswick and The Court of Appeal of New Brunswick and has been a member in good standing of the bar of a Province of Canada for at least ten years immediately preceding the date of the appointment.

1969, c.17, s.3; 1979, c.41, s.100; 1982, c.3, s.59; 1987, c.45, s.3

Protection and privilege of judges

3.1A judge shall have the same protection and privileges as are conferred upon judges of The Court of Queen’s Bench of New Brunswick, for any act done or omitted in the execution of his or her duty.

1996, c.54, s.1

Court seal

3.2(1)The Lieutenant-Governor in Council may establish the seal to be used by the Provincial Court.

3.2(2)Each judge shall have possession of a seal and may use it for the purposes of certifying or authenticating documents issued by the court, but the absence of a seal from such documents does not invalidate them.

2002, c.50, s.1

Appointment of deputy judge deemed valid

4(1)Repealed: 1987, c.45, s.24.1

4(2)All former judges who have been appointed deputy judges before the commencement of this subsection shall be deemed to have been validly appointed.

1969, c.17, s.4; 1979, c.41, s.100; 1982, c.3, s.59; 1987, c.45, s.4, 24.1

Repealed

4.1Repealed: 1995, c.6, s.2

1987, c.45, s.5; 1988, c.37, s.1; 1995, c.6, s.2

Age of retirement for judges

4.2A judge shall retire at the age of seventy-five years.

1987, c.45, s.6; 2000, c.6, s.3

Supernumerary judges

4.21(1)A judge who meets the criteria in subsection (2) and who wishes to perform reduced judicial duties may give three months notice in writing to the Minister electing supernumerary status.

4.21(2)The criteria are that the judge

(a) is an active judge as defined in the Provincial Court Judges’ Pension Act,

(b) was appointed as a judge on or before April 2, 2002, and

(c) either

(i) is at least sixty years old, having been a judge for at least twenty-five years, or

(ii) is at least sixty-five years old, having been a judge for at least fifteen years.

4.21(3)Notice may be given under subsection (1) before the time referred to in subparagraph (2)(c)(i) or (ii), to be effective on or after that date.

4.21(4)The chief judge and the associate chief judge may elect supernumerary status if they resign their appointment as chief judge or associate chief judge before the election takes effect.

4.21(5)A judge who elects supernumerary status

(a) thereby undertakes to perform judicial duties, as assigned by the chief judge, on up to one hundred days per calendar year, and

(b) may agree to perform judicial duties on additional days.

4.21(6)If a judge’s election takes effect later than the beginning of a calendar year, or if a judge who has elected supernumerary status retires or resigns before a calendar year ends, the undertaking under paragraph (5)(a) shall be reduced proportionately.

4.21(7)Subject to subsections (8), (9) and (10), the salary of a judge who has elected supernumerary status continues to be the salary of a judge appointed under subsection 2(1).

4.21(8)Subject to subsections (9) and (10), if a judge who has elected supernumerary status remains in office after the end of the year in which he or she becomes the age prescribed in subparagraph 8502(e)(i) of the Income Tax Regulations under the Income Tax Act (Canada) and is receiving an annuity under this Act or an annual pension under the Provincial Court Judges’ Pension Act, the judge’s salary shall be forty percent of the salary of a judge appointed under subsection 2(1).

4.21(9)Subject to subsection (10), if the annual pension referred to in subsection (8), combined with any supplementary allowance or payment payable under Part IV of the Provincial Court Judges’ Pension Act, exceeds sixty percent of the salary of a judge appointed under subsection 2(1), the salary of a judge who has elected supernumerary status shall be the amount that, when combined with the annual pension and any supplementary allowance and payment, produces a total equal to the salary of a judge appointed under subsection 2(1).

4.21(10)If the annual pension or supplementary allowance or payment referred to in subsection (9) has been reduced by the operation of section 11, 12 or 26 of the Provincial Court Judges’ Pension Act, and if, unless so reduced, their combined amount would have exceeded sixty percent of the salary of a judge appointed under subsection 2(1), the judge’s salary shall be calculated under subsection (9) by reference to the amount of the annual pension and supplementary allowance and payment that would have been paid if the reduction had not occurred.

2003, c.18, s.1; 2011, c.12, s.3

Repealed

4.3Repealed: 2003, c.18, s.2

1995, c.6, s.3; 2003, c.18, s.2

Repealed

4.4Repealed: 2003, c.18, s.3

1995, c.6, s.3; 2003, c.18, s.3

Appointment of extra-provincial judges

4.5(1)Notwithstanding any other provision of this Act, the Lieutenant-Governor in Council, after consultation with the chief judge or the associate chief judge, may appoint a judge of the provincial court of a province other than New Brunswick to preside over an action, cause, matter, process, hearing or proceeding if the Lieutenant-Governor in Council considers it appropriate in the circumstances.

4.5(2)A judge appointed under subsection (1)

(a) shall hold office until the action, cause, matter, process, hearing or proceeding over which he or she is to preside has concluded and any judgment, order or decision by the judge has been made, but the appointment is subject to his or her remaining a judge of the provincial court of the province in which he or she was appointed,

(b) shall have the powers, authority and jurisdiction of a judge appointed under subsection 2(1),

(c) shall be paid for his or her services at a daily rate of 1/251 of a judge’s salary, other than the chief judge’s or associate chief judge’s salary, and one-half the daily rate for one-half day’s work or less,

(d) shall receive reimbursement for expenses in respect of his or her services, as if he or she were a judge appointed under subsection 2(1), and

(e) shall be subject to the authority of the chief judge.

4.5(3)Sections 3.1, 5, 6 to 6.13, 12, 19 and 22 apply with the necessary modifications to a person appointed under this section.

2002, c.50, s.2

Judicial notice of term of judge

5The terms of the appointment of every judge shall be judicially noticed.

1969, c.17, s.5; 1987, c.45, s.7

Grounds for removal of judge

6Subject to this Act, a judge holds office during good behaviour and may be removed from office only for misconduct, neglect of duty or inability to perform his or her duties.

1969, c.17, s.6; 1971, c.56, s.1; 1979, c.41, s.100; 1985, c.66, s.2; 2008, c.45, s.26

Establishment of Judicial Council

6.1(1)There is hereby continued a Judicial Council which shall be composed of

(a) Repealed: 2004, c.31, s.1

(b) two judges of The Court of Appeal of New Brunswick appointed by the Chief Justice of New Brunswick, one of whom shall be appointed by the Chief Justice as chairman and the other as vice-chairman,

(c) three judges of The Court of Queen’s Bench of New Brunswick who shall be appointed by the Chief Justice of that Court, of whom the Chief Justice of The Court of Queen’s Bench of New Brunswick may be one of the appointees,

(d) two judges other than the chief judge or associate chief judge, who shall be appointed by the chief judge, and

(e) three other persons who shall be appointed by the Lieutenant-Governor in Council.

6.1(2)A person appointed to the Judicial Council continues as a member of the Judicial Council until a successor is appointed.

6.1(3)The vice-chairman of the Judicial Council shall act in place of the chairman when the chairman is absent or unable to act.

6.1(4)The persons appointed to the Judicial Council in accordance with paragraph 6.1(1)(e) shall be paid such remuneration and expenses as the Lieutenant-Governor in Council determines.

1985, c.66, s.3; 1987, c.45, s.8; 1990, c.21, s.1; 2000, c.6, s.4; 2004, c.31, s.1

Secretary to Judicial Council

6.2The Registrar of The Court of Appeal of New Brunswick shall serve as secretary to the Judicial Council.

1985, c.66, s.3; 1987, c.45, s.8

Quorum of Judicial Council

6.3A majority of the members of the Judicial Council constitutes a quorum and is sufficient for the exercise of all the jurisdiction and powers of the Judicial Council.

1985, c.66, s.3; 1987, c.45, s.8

Deliberations by Judicial Council

6.4(1)Where the Judicial Council is deciding any matter

(a) the chairman shall not vote except in the case of an equality of votes, and

(b) all deliberations shall be held in private.

6.4(2)Where the Judicial Council is deciding any matter respecting a judge appointed under paragraph 6.1(1)(d) whose conduct is the subject of a written communication under subsection 6.6(1) or (3), the judge is not entitled to vote on or participate in decisions of the Judicial Council respecting such matter.

6.4(3)The chairman may release the results of deliberations by the Judicial Council where there are compelling reasons in the public interest for such release.

1987, c.45, s.8; 2004, c.31, s.2

Conduct of judge may be dealt with

6.5The conduct of a judge may be dealt with under this Act even though such conduct occurred prior to the commencement of this section.

1987, c.45, s.8

Investigation of judge’s misconduct

6.6(1)The Judicial Council shall receive and the chairman shall refer to the chief judge for investigation all written communications suggesting any misconduct, neglect of duty or inability to perform duties on the part of a judge.

6.6(2)Notwithstanding subsection (1), where the Judicial Council receives a written communication suggesting any misconduct, neglect of duty or inability to perform duties on the part of the chief judge, the chairman shall refer it to the associate chief judge for investigation.

6.6(3)Where a written communication comes to the attention of the chief judge, whether by way of referral from the chairman or otherwise, suggesting any misconduct, neglect of duty or inability to perform duties on the part of a judge, the chief judge shall investigate the matter.

1987, c.45, s.8

Report on results of investigation

6.7(1)The chairman shall designate one or more members of the Judicial Council for the purpose of receiving reports referred to in this section.

6.7(2)Where a written communication is received by the chief judge or associate chief judge, whether by way of referral from the chairman or otherwise, the chief judge or associate chief judge, as the case may be, shall within twenty days after receiving the written communication, or within such longer period as the chairman permits, report on the results of the investigation to a member of the Judicial Council who has been designated by the chairman for that purpose.

6.7(3)Based upon the report, the member of the Judicial Council who receives the report shall, within twenty days after receiving the report, recommend to the chairman whether or not an inquiry should be held.

6.7(4)A recommendation that an inquiry not be held is subject to review by the Judicial Council which may determine that an inquiry should be held.

6.7(5)A recommendation that an inquiry be held is not subject to review by the Judicial Council.

6.7(6)The member of the Judicial Council who makes a recommendation under subsection (3) that an inquiry should not be held shall not participate in a review of the recommendation.

6.7(7)Notwithstanding section 6.3, for the purposes of a review under this section, five members of the Judicial Council constitute a quorum.

1987, c.45, s.8; 2000, c.6, s.5; 2004, c.31, s.3

Suspension of judges

6.8(1)At any time after the receipt of a written communication suggesting misconduct, neglect of duty or inability to perform duties on the part of a judge, the Judicial Council may suspend the judge whose conduct is in question from the performance of the judge’s duties with pay, pending the outcome of an investigation, inquiry or formal hearing, and may lift the suspension prior to the conclusion of an investigation, inquiry or formal hearing, where a change in circumstances warrants the lifting of the suspension.

6.8(2)Where a recommendation is made to the Lieutenant-Governor in Council under paragraph 6.11(4)(d), the Judicial Council may suspend the judge whose conduct is in question or may continue a suspension until the judge is removed from office.

1987, c.45, s.8

Inquiry by panel

6.9(1)Where an inquiry is recommended under subsection 6.7(3) or where the Judicial Council determines on review under subsection 6.7(4) that an inquiry should be held, the chairman shall

(a) appoint a panel consisting of three members of the Judicial Council, one of whom shall be a person appointed to the Judicial Council in accordance with paragraph 6.1(1)(e), to conduct an inquiry,

(b) appoint a barrister to act as counsel to the panel, and

(c) designate one of the members of the panel, other than a judge of the court, as the panel chairman.

6.9(2)The appointment of the counsel to the panel may be revoked at any time and another barrister may be appointed to act as the counsel to the panel.

6.9(2.1)Before appointing a barrister to act as counsel, the chairman shall obtain approval of the Minister of Justice and Consumer Affairs for the hourly or other rate by which the barrister is to be remunerated.

6.9(3)A decision by a majority of the members of the panel is a decision of the panel.

6.9(4)For the purposes of the inquiry, the panel chairman may, by summons, require the attendance before the counsel to the panel of any person whose evidence may be material to the subject of the inquiry and may order any person to produce such papers and documents as appear necessary.

6.9(5)A person summoned under subsection (4) shall attend and answer all questions put by the counsel to the panel respecting the subject of the inquiry and shall produce such papers and documents as the counsel to the panel may require.

6.9(6)Where a person summoned under subsection (4) fails to comply with the requirements of subsection (5), the provisions of section 6 of the Inquiries Act apply with the necessary modifications.

6.9(7)The counsel to the panel shall inquire into the suggestions of misconduct, neglect of duty or inability to perform duties on the part of a judge received in a written communication referred to in section 6.6 for the purpose of gathering all information that may be relevant to preparing a formal complaint.

6.9(8)The counsel to the panel shall present the findings to the panel who shall then determine whether there is sufficient evidence to warrant holding a formal hearing.

6.9(9)Where the panel determines that there is not sufficient evidence to warrant holding a formal hearing, the panel shall advise the Judicial Council that no further proceedings shall be taken and shall give the reasons for the decision.

6.9(10)Where the panel determines that there is sufficient evidence to warrant holding a formal hearing, the panel shall advise the Judicial Council that a formal hearing is to be conducted and shall instruct the counsel to the panel to prepare a formal complaint setting forth the allegations of misconduct, neglect of duty or inability to perform duties against the judge whose conduct is in question.

6.9(11)The determinations of the panel referred to in subsections (9) and (10) are not subject to review by the Judicial Council.

1987, c.45, s.8; 1990, c.21, s.2; 2000, c.6, s.6; 2004, c.31, s.4; 2006, c.16, s.144

Formal hearing

6.10(1)Where the panel has made a determination under subsection 6.9(10), it shall conduct a formal hearing respecting the allegations set forth in the formal complaint referred to in subsection 6.9(10) and it has all the powers of a commissioner under the Inquiries Act.

6.10(2)Where a formal hearing is to be held, it shall commence not later than ninety days after the receipt of the report from the chief judge or associate chief judge under subsection 6.7(2).

6.10(3)Notice of the formal hearing together with a copy of the formal complaint referred to in subsection 6.9(10) shall be served on the judge whose conduct is in question in accordance with the regulations.

6.10(4)The counsel to the panel shall act as the prosecutor at the formal hearing.

6.10(5)A formal hearing shall be held in private unless the judge whose conduct is in question requests that it be held in public or the Judicial Council determines that there are compelling reasons in the public interest that it be held in public.

1987, c.45, s.8; 2000, c.6, s.7; 2004, c.31, s.5

Panel’s report of findings

6.11(1)After the formal hearing, the panel shall report to the chairman its findings of fact and its findings as to the allegations of misconduct, neglect of duty or inability to perform duties of the judge whose conduct is in question.

Panel’s report of findings

6.11(2)The chairman shall place the report of the panel before the Judicial Council for a decision.

Panel’s report of findings

6.11(3)The Judicial Council shall

(a) give a copy of the report of the findings of the panel to the judge whose conduct is in question and the counsel for the panel, and

(b) advise both the judge and counsel to the panel of their right to make representations to the Judicial Council respecting the report before the taking of action by the Council under subsection (4).

6.11(3.1)Representations to the Judicial Council made under paragraph (3)(b) may be either in person or through counsel, if any, and either orally or in writing.

Disposition of matter by Judicial Council

6.11(4)Based on the findings contained in the report and the representations, if any, made under subsection (3), the Judicial Council may

(a) dismiss the complaint,

(b) direct the chief judge to issue a reprimand to the judge with such conditions as the Judicial Council considers appropriate,

(c) where the conduct of the chief judge is in question, reprimand the chief judge with such conditions as the Judicial Council considers appropriate, or

(d) recommend to the Lieutenant-Governor in Council that the judge be removed from office.

Disposition of matter by Judicial Council

6.11(5)Where the Judicial Council dismisses the complaint, it may make such order as to the reimbursement of the judge’s costs on the formal hearing as it considers appropriate and such reimbursement shall be paid from the Consolidated Fund.

Disposition of matter by Judicial Council

6.11(6)The chief judge shall on the receipt of the Judicial Council’s directive under paragraph (4)(b) issue a reprimand with such conditions as the Judicial Council considers appropriate.

Disposition of matter by Judicial Council

6.11(7)Failure on the part of a judge to comply with conditions imposed under paragraph (4)(c) or subsection (6) shall be deemed to constitute misconduct under section 6.

Removal of judge from office

6.11(8)The Lieutenant-Governor in Council shall, on receipt of the Judicial Council’s recommendation under paragraph (4)(d), remove the judge from office.

Removal of judge from office

6.11(9)Where a judge is removed from office, a copy of the Order in Council and all reports, evidence and correspondence relating to such removal shall be laid before the Legislative Assembly by the Minister if it is then sitting, or if not, at the next ensuing sitting.

1987, c.45, s.8; 2000, c.6, s.8; 2004, c.31, s.6

Report on disposition of matter

6.12(1)The Judicial Council shall advise each person who submitted a written communication under section 6.6 of the disposition of the matter by the Judicial Council.

6.12(2)The Judicial Council shall report to the Minister on the disposition of each matter dealt with by it, but the report shall not be made public unless the Judicial Council determines that there are compelling reasons in the public interest that it be made public.

6.12(3)A report received by the Minister under subsection (2) is not subject to disclosure.

1987, c.45, s.8; 2009, c.R-10.6, s.95

Immunity from liability

6.13No action or other proceeding for damages shall be instituted against the Judicial Council or any member or officer of it or any person acting under the authority of the Judicial Council for any act done in good faith in the execution or intended execution of the Judicial Council’s or the person’s duty.

1987, c.45, s.8

Repealed

7(1)Repealed: 1983, c.4, s.18

Repealed

7(2)Repealed: 1983, c.4, s.18

Resignation of judge

7(3)A judge may resign his or her office at any time by notice in writing to the Minister.

Repealed

7(4)Repealed: 1983, c.4, s.18

Power of cabinet to appoint person over 65 years to be judge

7(5)Sections 15 and 16 do not apply to a judge who is appointed after he or she has reached the age of sixty-five years nor to the surviving spouse, surviving common-law partner or children of such judge.

1969, c.17, s.7; 1971, c.56, s.2; 1974, c.39(Supp.), s.1; 1983, c.4, s.18; 2000, c.P-21.1, s.39; 2008, c.45, s.26

Panel of retired or resigned judges

7.1(1)The Lieutenant-Governor in Council shall establish a panel composed of judges who have retired or resigned in accordance with this Act, who have not reached the age of seventy-five years and who have given notice to the chief judge of their intention to be available for judicial duties.

7.1(2)Where, in the opinion of the chief judge, additional judges are urgently required to conduct the business of the court, the chief judge may select a person from the panel established under subsection (1) to act as, and to exercise the powers of, a judge to conduct the business of the court.

7.1(3)The chief judge shall not select any additional judges under subsection (2) if the remuneration of the judges would have the effect of exceeding for the fiscal year an amount that is equal to five per cent of the salaries of twenty-six judges appointed under subsection 2(1), including the salaries of the chief judge and the associate chief judge.

7.1(4)A person selected under subsection (2) is deemed to be a judge and has all the powers, authority and jurisdiction of a judge appointed under subsection 2(1).

7.1(5)Sections 5, 19, 21.1 and 22 apply with the necessary modifications to a person who is selected under subsection (2).

7.1(6)A person who is selected under subsection (2) shall be paid a daily rate of 1/251 of a judge’s salary, other than the chief judge’s or associate chief judge’s salary, and shall be paid one-half the daily rate for one-half day’s work or less.

7.1(7)A person who is selected under subsection (2) shall receive such reimbursement for expenses in respect of the person’s services as a judge as are prescribed by regulation.

2003, c.18, s.4; 2011, c.15, s.1

Removal from panel of retired or resigned judges

7.2(1)The Lieutenant-Governor in Council shall not remove a person from the panel established under subsection 7.1(1) except

(a) upon the written request of the person to the chief judge,

(b) upon the person reaching the age of seventy-five years,

(c) upon the recommendation of the Judicial Council, or

(d) upon the death of the person.

7.2(2)Where a person submits a written request to be removed from the panel established under subsection 7.1(1), the person is deemed to be removed from the panel on the later of the date specified in the request or the date on which the chief judge receives the request.

7.2(3)Sections 6 to 6.13 apply with the necessary modifications to a person who is on the panel established under subsection 7.1(1).

2003, c.18, s.4

Deemed compliance

7.3A judge selected under subsection 7.1(2) is deemed to have complied with section 12 before exercising his or her powers of office under section 7.1.

2003, c.18, s.4

II

JUDICIAL FUNCTIONS

1983, c.69, s.2

Jurisdiction of judge

8(1)Each judge is hereby constituted a court of record and, throughout the Province, has all the powers, authority, criminal jurisdiction and quasi-criminal jurisdiction vested in a police magistrate or in two or more justices of the peace sitting and acting together, under any law or statute in force in the Province; and the powers, authority or jurisdiction are not affected by the place where an offence is committed or an act occurs.

8(2)Where in any Act or statute, whether public or private, in force in the Province the expression “justice”, “police magistrate”, “stipendiary magistrate”, “sitting magistrate”, “county magistrate”, “magistrate”, or “judge of a magistrates court” is used, it is deemed to include a judge appointed under this Act.

8(3)Repealed: 1988, c.36, s.1

8(4)Every judge is ex officio a commissioner of oaths.

1969, c.17, s.8; 1973, c.74, s.66; 1987, c.45, s.9; 1988, c.36, s.1

Enforcement of alimony or maintenance order of Supreme Court

9A person entitled to alimony or maintenance under a judgment or order of The Court of Queen’s Bench of New Brunswick or of the Court of Appeal may file a copy of the judgment or order in the court with a judge having jurisdiction where the person ordered to pay or the person entitled then resides, and when so filed it may be enforced by the judge in the same manner as an order made under the Family Services Act.

1972, c.56, s.3A; 1979, c.41, s.100; 1982, c.3, s.59; 1987, c.6, s.89

Control of judges by chief judge

10(1)The chief judge

(a) may designate the places where a judge is to hold sittings,

(b) may designate the places where a judge is to establish and maintain an office,

(c) may designate the days on which a judge is to hold sittings at any place,

(d) may designate the places and the areas within which a judge is to exercise his or her jurisdiction,

(e) may designate, with the consent of the Minister, the place at which a judge is to establish residence;

(f) may require a judge to act during the absence of another judge in the place and stead of the judge who is absent.

Minister to designate place of judge’s residence

10(1.1)Upon the appointment of a judge of the court under subsection 2(1), the Minister shall designate the place at which the judge is to establish residence.

Lapse of designations

10(1.2)When a judge has elected supernumerary status any designations made in relation to that judge under paragraph (1)(e) or subsection (1.1) lapse.

Repealed

10(2)Repealed: 1987, c.45, s.10

1969, c.17, s.9; 1987, c.45, s.10; 2003, c.18, s.5; 2008, c.45, s.26

Duties of associate chief judge

10.1(1)In the event of a vacancy in the office of chief judge, or if the chief judge is unable to act because of illness, absence or other cause, the associate chief judge shall perform the duties of the chief judge.

10.1(2)The chief judge may delegate any duty imposed on him or her or delegated to him or her by or under this Act to the associate chief judge.

10.1(3)Repealed: 1987, c.45, s.11

1980, c.43, s.3; 1985, c.66, s.4; 1987, c.45, s.11; 2008, c.45, s.26

Repealed

11(1)Repealed: 1991, c.18, s.1

11(2)Repealed: 1991, c.18, s.1

11(3)Repealed: 1987, c.P-22.2, s.39; 1991, c.18, s.1

11(4)Repealed: 1991, c.18, s.1

1971, c.56, s.3; 1972, c.56, s.1, 2, 3; 1982, c.3, s.59; 1985, c.C-40, s.18; 1987, c.P-22.2, s.39; 1987, c.6, s.89; 1987, c.45, s.12; 1991, c.18, s.1

Designation of Youth Court

11.1(1)The court is designated as a youth court for the purposes of the Young Offenders Act (Canada), and every judge of the court is appointed a judge of the youth court.

11.1(2)Every judge of the court who, immediately before the commencement of this section, had been appointed as a youth court judge or had exercised jurisdiction under the Young Offenders Act (Canada), shall be deemed to have been appointed under subsection (1).

1991, c.18, s.1

Oaths of judge

12(1)Before exercising his or her powers of office, each judge shall

(a) take and subscribe an oath of office, or

(b) make and subscribe an affirmation of office,

as follows:

I, _______________________ of ________________ in the County of _______________________ do swear (or solemnly affirm) that I will faithfully, impartially and honestly execute all the powers and duties of the office of judge of the Provincial Court accordingly to my best skill and knowledge; and I will do right by all manner of people according to law, without fear or favour, affection or ill-will. (In the case where an oath is taken add “So help me God”)

12(2)An oath or affirmation shall be taken and subscribed or made and subscribed before

(a) the Chief Justice of New Brunswick, in the case of the chief judge and the associate chief judge, and

(b) the chief judge, in the case of any other judge.

12(2.1)A person before whom an oath is taken and subscribed or an affirmation is made and subscribed shall file the oath or affirmation in the office of the Minister without delay.

12(3)A judge sworn under the Magistrates Courts Act is deemed to have been sworn under this Act.

12(4)Repealed: 2003, c.18, s.6

1969, c.17, s.10; 1979, c.41, s.100; 1983, c.4, s.18; 1987, c.45, s.13; 1995, c.6, s.4; 2003, c.18, s.6; 2008, c.42, s.2; 2008, c.45, s.26

Conflict of interests

13(1)A judge, other than a judge who has elected supernumerary status and a person who is on the panel established under subsection 7.1(1), shall devote his or her whole time to the performance of his or her duties as a judge.

13(1.1)A judge, including a person who is on the panel established under subsection 7.1(1), shall not practise, carry on or conduct any business in the practice or profession of the law and shall not engage in any business, trade, profession or occupation without the prior approval in each particular case by the Lieutenant-Governor in Council.

13(2)This section does not prohibit the following:

(a) a judge from carrying out any duties assigned to him or her by order of the Lieutenant-Governor in Council;

(b) a judge from carrying out any administrative duties assigned to him or her in accordance with Part III;

(c) a judge from sitting as a judge of the provincial court of a province other than New Brunswick, on the request of the proper authority of that province, if the chief judge authorizes the judge to do so and informs the Minister of the granting of the authorization; or

(d) the chief judge from sitting as a judge of the provincial court of a province other than New Brunswick, on the request of the proper authority of that province, if the chief judge considers it appropriate in the circumstances and informs the Minister of the intended action.

13(3)A breach of this section is deemed to be misconduct under section 6.

1969, c.17, s.11; 1983, c.69, s.3; 1985, c.66, s.5; 1987, c.P-22.2, s.39; 1987, c.45, s.14; 1995, c.6, s.5; 2000, c.6, s.9; 2003, c.18, s.7; 2008, c.45, s.26; 2011, c.15, s.2

Remuneration of judges

14(1)A chief judge, an associate chief judge and judges appointed under subsection 2(1) shall receive such salaries as shall be determined by the Lieutenant-Governor in Council.

14(2)Repealed: 1995, c.6, s.6

1969, c.17, s.12; 1970, c.41, s.2; 1980, c.43, s.4; 1987, c.45, s.15; 1995, c.6, s.6

Annuity of judge

15(1)A judge who

(a) held office under the County Magistrates Act, the Magistrates Courts Act and this Act for at least ten years or held judicial office on the day this section came into force and who retires having reached the age of sixty-five years,

(a.1) held office for at least twenty-five years, and who resigns having reached the age of sixty years,

(b) held office for at least fifteen years, if he or she resigns and in the opinion of the Lieutenant-Governor in Council the resignation is conducive to the better administration of justice,

(b.1) held office for at least twenty years, and who resigns having reached the age of sixty years, or

(c) held judicial office for not less than two years and becomes afflicted with some permanent infirmity disabling him or her from the due execution of his or her office, if he or she resigns or by reason of such infirmity is removed from office,

is to be paid an annuity equal to sixty per cent of his or her salary at the time of his or her retirement, resignation or removal.

15(1.01)Notwithstanding subsection (1), a judge who is not entitled to be paid an unreduced annuity under subsection (1) only because he or she has not held office for at least twenty-five years, or has not reached the age of sixty-five years, may elect to retire and be paid a reduced annuity commencing on the day of the judge’s retirement, in the amount that would have been payable to the judge under subsection (1) if an unreduced annuity had begun to be paid to the judge when he or she was entitled to receive it under that subsection, reduced by five-twelfths of one per cent for each calendar month from the calendar month following the calendar month in which the judge actually began retirement, to and including the calendar month before the calendar month in which the judge would have been entitled to begin being paid the unreduced annuity under subsection (1).

15(1.02)Subject to subsections (5.01), (5.02) and (5.05), election of an entitlement to a deferred annuity under paragraph (1)(b) or (b.1) or election of payment of a reduced annuity under subsection (1.01) is a substitute for any other election or payment under this section and is irrevocable and a judge who makes such an election is not entitled to be paid any other annuity under this Act.

15(1.1)Repealed: 1995, c.6, s.7

15(2)An annuity granted to a judge under this section commences on the day of the judge’s retirement, resignation or removal from office and continues during the judge’s natural life.

15(2.1)Repealed: 1995, c.6, s.7

15(3)Notwithstanding subsection (2), an annuity payable to a judge referred to in paragraph (1)(b) or (1)(b.1) commences when he or she reaches the age of sixty-five years.

15(4)Subject to subsections (5.01), (5.02) and (5.05), where a judge

(a) held judicial office for at least two years immediately prior to his or her death,

(b) immediately prior to his or her death was entitled to receive or was receiving an annuity under this Act,

(c) held office for at least fifteen years and resigns as described in paragraph (1)(b), or

(d) held office for at least twenty years and resigns as described in paragraph (1)(b.1),

the surviving spouse or surviving common-law partner shall, subject to subsections (5.1) to (5.3) and 17.3(3) and (5), be paid an annuity equal to ½ of the annuity paid to a judge under subsection (1) or (1.01), as the case may be, but the surviving spouse’s annuity or surviving common-law partner’s annuity ceases upon the death of that surviving spouse or surviving common-law partner, as the case may be.

15(5)Notwithstanding subsection (4), an annuity payable to the surviving spouse or surviving common-law partner of a judge referred to in paragraph (4)(c) or (4)(d) commences on the day when the judge would have reached his or her sixty-fifth birthday if he or she had lived.

15(5.01)Subject to subsection 37(5) of the Provincial Court Judges’ Pension Act, if a judge has a spouse or common-law partner at the time when payments of an annuity under paragraph (1)(a), (a.1), (b) or (b.1) or subsection (1.01), as the case may be, are to begin to be made to the judge, the judge may, at that time, elect to be paid an annuity, in accordance with subsection (5.083), in an amount that is less than the amount payable to the judge, in which case the amount of a surviving spouse’s annuity or surviving common-law partner’s annuity payable to the judge’s surviving spouse or surviving common-law partner shall be increased in accordance with subsections (5.03) and (5.04).

15(5.02)Subject to subsection 37(5) of the Provincial Court Judges’ Pension Act, if a judge who is being paid an annuity under paragraph (1)(c) has a spouse or common-law partner at the time when the judge reaches the age of 65 years, the judge may, at that time, elect to be paid an annuity, in accordance with subsection (5.083), in an amount that is less than the amount payable to the judge, in which case the amount of a surviving spouse’s annuity or surviving common-law partner’s annuity payable to the judge’s surviving spouse or surviving common-law partner shall be increased in accordance with subsections (5.03) and (5.04).

15(5.03)A judge electing a reduced annuity under subsection (5.01) or (5.02) may elect an increased surviving spouse’s annuity or an increased surviving common-law partner’s annuity in an amount that is sixty per cent, sixty-six and two-thirds per cent, seventy-five per cent or one hundred per cent of the amount of the reduced annuity that the judge elects to be paid.

15(5.04)The amount of the judge’s reduced annuity and of the increased surviving spouse’s annuity or increased surviving common-law partner’s annuity in total shall be the actuarial equivalent of the total amount of the annuities that the judge and his or her surviving spouse or surviving common-law partner would or could have been paid if the election had not been made under subsection (5.01) or (5.02).

15(5.05)A judge making an election to be paid a reduced annuity under subsection (5.01) or (5.02) may, at that same time, also elect to have guaranteed payments made in accordance with subsections (5.06) to (5.082) to his or her surviving spouse or surviving common-law partner, as the case may be, and his or her estate during a period of five, ten or fifteen years after the payments of the reduced annuity are to begin to be made to the judge, as selected by the judge.

15(5.06)If a judge makes an election under subsection (5.05), the amount of the judge’s reduced annuity, of the increased surviving spouse’s annuity or increased surviving common-law partner’s annuity and of any payment that might be made to the judge’s estate in total shall be the actuarial equivalent of the total amount of the annuities that the judge and his or her surviving spouse or surviving common-law partner would or could have been paid if the election had not been made.

15(5.07)If a judge elects to be paid a reduced annuity under subsection (5.05) and dies during the guarantee period of 5, 10 or 15 years selected by the judge, his or her surviving spouse or surviving common-law partner who would be entitled to receive a surviving spouse’s annuity or surviving common-law partner’s annuity under subsection (4) is entitled to receive, instead of that surviving spouse’s annuity or surviving common-law partner’s annuity, an annuity

(a) until the guarantee period expires, in the same amount as the judge was receiving at the time of the judge’s death, and

(b) after the guarantee period expires, for the lifetime of the spouse or common-law partner in the increased amount determined in accordance with subsection (5.06).

15(5.08)If a judge elects to be paid a reduced annuity under subsection (5.05) and both the judge and the judge’s spouse or common-law partner die during the guarantee period selected by the judge, the judge’s estate shall be paid a lump sum equal to the actuarial equivalent of the balance of the reduced annuity payments that the judge or, if the judge’s spouse or common-law partner survives the judge, the judge’s spouse or common-law partner, would have been paid during the remainder of the selected guarantee period if the judge and the judge’s spouse or common-law partner had not died during that period.

15(5.081)If a judge elects to be paid a reduced annuity under subsection (5.05) and both the judge and his or her spouse or common-law partner die after the end of the guarantee period selected by the judge, no payments shall be made to the judge’s estate under subsection (5.08).

15(5.082)Notwithstanding subsection (6), if a judge elects to be paid a reduced annuity under subsection (5.01), (5.02) or (5.05), no child of the judge is entitled to be paid an annuity under subsection (6).

15(5.083)Notice of any election under subsection (5.01), (5.02) or (5.05)

(a) shall be made in writing, shall indicate the amount of the judge’s reduced annuity and of the increased surviving spouse’s annuity or increased surviving common-law partner’s annuity and shall be signed by the judge,

(b) shall be delivered to the Minister

(i) between sixty days and ten days, inclusive, before the date on which the entitlement to be paid the annuity under paragraph (1)(a), (a.1), (b) or (b.1) or subsection (1.01), as the case may be, begins, or

(ii) between sixty days and ten days, inclusive, before the date on which the judge reaches the age of sixty-five years, where the judge is being paid an annuity under paragraph (1)(c),

(c) is not effective unless it is delivered to the Minister within the time period described in paragraph (b), and

(d) is irrevocable.

15(5.084)A judge who elects to be paid a reduced annuity under subsection (5.01), (5.02) or (5.05) is not entitled to re-elect to be paid a different reduced annuity or an unreduced annuity at any other time.

15(5.085)Notwithstanding anything else in this section, if a judge who is being paid a reduced annuity under subsection (5.01), (5.02) or (5.05) dies, no person is entitled to be paid a surviving spouse’s annuity unless the person was the spouse of the judge on the date when the reduced annuity began to be paid to the judge.

15(5.0851)Notwithstanding anything else in this section, if a judge who is being paid a reduced annuity under subsection (5.01), (5.02) or (5.05) dies, no person is entitled to be paid a surviving common-law partner’s annuity unless the person was the common-law partner of the judge on the date when the reduced annuity began to be paid to the judge and at the time of the judge’s death.

15(5.086)Repealed: 2008, c.45, s.26

15(5.087)Repealed: 2008, c.45, s.26

15(5.0871)Repealed: 2008, c.45, s.26

15(5.0872)Repealed: 2008, c.45, s.26

15(5.0873)Repealed: 2008, c.45, s.26

15(5.0874)Repealed: 2008, c.45, s.26

15(5.0875)Repealed: 2008, c.45, s.26

15(5.0876)Repealed: 2008, c.45, s.26

15(5.0877)Repealed: 2008, c.45, s.26

15(5.0878)Repealed: 2008, c.45, s.26

15(5.1)Subject to subsections (5.3) and 17.3(3) and (5), the surviving spouse of a judge is entitled to a surviving spouse’s annuity, if otherwise eligible, and the surviving common-law partner of that judge is not entitled to a surviving common-law partner’s annuity if

(a) the surviving spouse was married to the judge

(i) at the time of the judge’s death, or

(ii) on the date when the judge’s reduced annuity began to be paid if the judge made an election under subsection (5.01), (5.02) or (5.05), and

(b) the marriage of the surviving spouse and the judge was not a void or voidable marriage.

15(5.2)The spouse or common-law partner of a judge may enter into a written agreement with the judge that waives his or her entitlement to a surviving spouse’s annuity or surviving common-law partner’s annuity, as the case may be.

15(5.3)A surviving spouse is not entitled to a surviving spouse’s annuity and a surviving common-law partner is not entitled to a surviving common-law partner’s annuity if there is

(a) a valid written agreement referred to in subsection (5.2), or

(b) a decree, order or judgment of a competent tribunal that bars the claim of the surviving spouse or surviving common-law partner.

15(6)If a judge dies without leaving a surviving spouse or surviving common-law partner, or if a surviving spouse’s annuity or surviving common-law partner’s annuity is not payable or ceases to be payable under this Act, an annuity equal to the surviving spouse’s annuity or surviving common-law partner’s annuity that was being paid or could have been paid under subsection (4) shall be paid to the guardian of the judge’s children who are under the age of 18 years for their maintenance and education until they reach the age of 18 years.

15(7)Repealed: 2000, c.P-21.1, s.39

15(8)Notwithstanding subsections (1) and (1.01), annuities payable under either of those subsections are to be integrated with the Canada Pension Plan in accordance with the regulations.

15(9)For the purposes of this section a judge who retired after the first day of January 1967 and before June 18, 1969, is deemed

(a) to have retired immediately after the coming into force of this Act, on June 18, 1969, and

(b) to have held office under the County Magistrates Act and the Magistrates Courts Act for at least ten years.

15(10)Where a judge has elected supernumerary status under section 4.21 and has also elected under subsection 37(3.1) of the Provincial Court Judges’ Pension Act to be paid the benefits to which he or she is entitled under this Act while remaining in office after the end of the thirty-first day of December of the year in which he or she becomes the age prescribed in subparagraph 8502(e)(i) of the Income Tax Regulations under the Income Tax Act (Canada),

(a) the judge is deemed for the purposes of this section to have resigned or retired at the end of that day, and

(b) the actual date on which the judge subsequently resigns or retires is immaterial for the purposes of this section.

1969, c.17, s.13; 1970, c.41, s.3; 1974, c.39(Supp.), s.2; 1977, c.41, s.1; 1979, c.59, s.1; 1987, c.45, s.16; 1988, c.37, s.2; 1995, c.6, s.7; 1998, c.35, s.3; 2000, c.P-21.1, s.39; 2003, c.18, s.8; 2003, c.19, s.2; 2008, c.45, s.26; 2011, c.12, s.3

Annuity of judge

15.1(1)A judge appointed after the age of fifty-five years may, for the purposes of receiving a pension under this Act, purchase any period of active military service with the armed forces or merchant marine of Canada or her allies during World War II or the Korean Campaign, in accordance with the regulations under the Public Service Superannuation Act where not inconsistent with this section.

15.1(2)A judge appointed prior to the coming into force of this section shall elect to purchase active military service within two years of the coming into force of this section, and a judge appointed after the coming into force of this section shall elect to purchase active military service within one year of being appointed judge.

1976, c.48, s.1

Annuity of judge

15.2(1)In this section

“Consumer Price Index” means the Consumer Price Index for Canada published under the authority of the Statistics Act, chapter 15 of the Statutes of Canada, 1970-71;

“pension index” means for each year, the average of the Consumer Price Index for the twelve month period ending June 30 in the year preceding that year unless the average is less than 1.01 times the pension index for the preceding year, in which case the pension index for the year is the pension index for the preceding year.

15.2(2)Where a pension is paid under this Act to a person who was receiving the pension before January 1, 1980, the amount of that pension expressed in annual terms shall be adjusted by multiplying the amount of the pension that would have been payable if no adjustment had been made under this subsection by the ratio that the Consumer Price Index for the year 1972 bears to the Consumer Price Index for the year in which the pension was first received.

15.2(3)The amount of any pension paid under this Act, after being adjusted in accordance with subsection (2), shall be adjusted, in respect of the previous year, as of the first day of each year,

(a) for the year 1973 by two per cent;

(b) for the year 1974 by two per cent;

(c) for the year 1975 by six per cent;

(d) for the year 1976 by six per cent;

(e) for the year 1977 by six per cent;

(f) for the year 1978 by six per cent;

(g) for the year 1979 by six per cent;

(h) for the year 1980 by six per cent.

15.2(4)An increase in the amount of a pension adjusted under subsections (2) and (3) shall be effective April 1, 1980.

15.2(5)The amount of any pension paid under this Act, after being adjusted in accordance with subsection (2) or (3), shall be adjusted as of the first day of each year, beginning January 1, 1981, by multiplying the amount of the pension that would have been payable for that year if no adjustment had been made under this subsection with respect to that following year, by the ratio that the pension index for that year bears to the pension index for the preceding year or 1.06, whichever is the lesser.

15.2(6)Notwithstanding subsection (5), the first adjustment under that subsection shall be the amount determined by multiplying the increase, if any, that would otherwise be payable under subsection (5) by a fraction the denominator of which is 12 and the numerator of which is equal to the number of months following the month in which the judge ceased to hold office or died, or following the month in which he or she reaches or would have reached sixty-five years of age when paragraph 15(1)(b) or (b.1) applies, in the year preceding the year in which the first adjustment is made.

1980, c.43, s.5; 1984, c.11, s.1; 2008, c.45, s.26

Annuity of judge

16Section 15 does not apply

(a) to a judge to whom the Public Service Superannuation Act did not apply immediately prior to June 18, 1969, or to his or her surviving spouse or surviving common-law partner, as the case may be, and his or her children, unless he or she pays into the fund referred to in subsection 15(7) the amount that he or she would have paid under chapter 185 of the Revised Statutes, 1952 and the Public Service Superannuation Act if they had applied to him or her from the time of his or her taking office under the County Magistrates Act, chapter 46 of the Revised Statutes, 1952, the Magistrates Courts Act, chapter 14 of 15 Elizabeth II, 1966, or this Act;

(b) to a judge appointed after June 18, 1969, his or her surviving spouse or surviving common-law partner, as the case may be, and his or her children if the judge has not filed in accordance with the regulations a certificate of a qualified medical doctor certifying that the state of the judge’s health is equal to the standards required by the regulations;

(c) to a surviving spouse of a judge who dies within two years after the date of his or her marriage if the Minister is not satisfied that the judge at the time of his or her marriage was in such a condition of health as to justify him or her in expecting to survive for at least two years.

1969, c.17, s.14; 1974, c.39(Supp.), s.3; 1998, c.35, s.3; 2008, c.45, s.26

Repealed

17Repealed: 2000, c.P-21.1, s.39

1969, c.17, s.15; 2000, c.P-21.1, s.39

Establishment of Provincial Court Judges Superannuation Account

17.1Repealed: 2000, c.P-21.1, s.39

1979, c.59, s.2; 1984, c.56, s.1; 1994, c.N-6.01, s.29; 2000, c.P-21.1, s.39

Judge entitled to return of contributions

17.11(1)Notwithstanding section 17.1, where a judge has had contributions to the pension trust fund referred to in section 17.1 transferred from the Public Service Superannuation Fund pursuant to Order-in-Council 69-723 to that pension trust fund, the judge is entitled, upon application, to a return of the contributions so transferred with interest, with the rate of interest based on the ninety day federal treasury bills five year average yield, compounded annually and calculated from January 1, 1970 to the date of payment.

17.11(2)Where a judge referred to in subsection (1) has died, the return of contributions and interest may only be made

(a) to his or her surviving spouse if the surviving spouse makes an application and was entitled to the surviving spouse’s annuity under section 15 at the time of the judge’s death, or

(b) if no person is paid under paragraph (a), to his or her surviving common-law partner if the surviving common-law partner makes an application and was entitled to the surviving common-law partner’s annuity under section 15 at the time of the judge’s death.

17.11(3)Repealed: 2008, c.45, s.26

1987, c.45, s.17; 1998, c.35, s.3; 2008, c.45, s.26

Administration of pension

17.2Unless otherwise provided, the Chairman of the Board of Management is responsible for the administration of the pension provisions of this Act.

1984, c.56, s.2

Division of benefits on breakdown of a marriage or common-law partnership

17.3(1)Notwithstanding any other provision of this Act, where a competent tribunal makes a decree, order or judgment on or after January 1, 1997, in relation to the division on marriage breakdown of a benefit that a judge, or a former judge, is or may be entitled to under this Act, the commuted value of the benefit shall be determined in accordance with the regulations as of the date of marriage breakdown and shall be divided in accordance with the decree, order or judgment of the tribunal.

17.3(1.1)Notwithstanding any other provision of this Act, where a competent tribunal makes a decree, order or judgment on or after the commencement of this subsection in relation to the division on the breakdown of a common-law partnership of a benefit that a judge, or a former judge, is or may be entitled to under this Act, the commuted value of the benefit shall be determined in accordance with the regulations as of the date of the breakdown of the common-law partnership and shall be divided in accordance with the decree, order or judgment of the tribunal.

17.3(2)The portion of the benefit to which the spouse or common-law partner of a judge, or of a former judge, is entitled under a decree, order or judgment referred to in subsection (1) or (1.1) shall be dealt with in accordance with the regulations.

17.3(3)If a benefit has been divided under subsection (1) or (1.1), the spouse or common-law partner has no further right

(a) to a division of any other benefit of the judge, or former judge,

(b) to a surviving spouse’s annuity or surviving common-law partner’s annuity under section 15 with respect to the judge, or the former judge, or any other benefit or amount payable to the spouse or common-law partner under this Act by virtue of being the spouse or common-law partner of the judge, or the former judge, or

(c) in relation to the pension trust fund referred to in section 17.1 as it existed before the date on which the Provincial Court Judges’ Pension Act received Royal Assent, or to the Fund referred to in that Act,

and the benefit of the judge, or of the former judge, shall be revalued in accordance with the regulations.

17.3(4)Notwithstanding any other provision of this Act, where a written agreement in settlement of rights arising as a consequence of marriage breakdown is entered into on or after January 1, 1997, and provides for the division on marriage breakdown of a benefit that a judge, or a former judge, is or may be entitled to under this Act, the commuted value of the benefit shall be determined as of the date of marriage breakdown in accordance with the regulations and shall be divided in accordance with the written agreement.

17.3(4.1)Notwithstanding any other provision of this Act, where a written agreement in settlement of rights arising as a consequence of the breakdown of a common-law partnership is entered into on or after the commencement of this subsection and provides for the division on the breakdown of the common-law partnership of a benefit that a judge, or a former judge, is or may be entitled to under this Act, the commuted value of the benefit shall be determined as of the date of the breakdown of the common-law partnership in accordance with the regulations and shall be divided in accordance with the written agreement.

17.3(5)Subsections (2) and (3) apply with the necessary modifications to a division of a benefit under subsection (4) or (4.1).

17.3(6)A division of benefits under this section shall not result in a reduction of the commuted value of the benefit of a judge, or of a former judge, by more than fifty per cent.

17.3(7)A division of benefits under this section applies only in relation to benefits accrued between the date of marriage and the date of marriage breakdown or between the date of common-law partnership and the date of the breakdown of the common-law partnership, as the case may be.

17.3(8)A division of benefits under this section is limited by any restrictions under this Act in relation to the payment of money out of the pension trust fund referred to in section 17.1 as it existed before the date on which the Provincial Court Judges’ Pension Act received Royal Assent, or out of the Fund referred to in that Act.

1997, c.56, s.3; 1998, c.35, s.3; 2000, c.P-21.1, s.39; 2008, c.45, s.26

Repealed

18Repealed: 1974, c.39(Supp.), s.4

1969, c.17, s.16; 1974, c.39(Supp.), s.4

Records, reports and returns

19A judge shall keep records and make reports and returns as required by regulation.

1969, c.17, s.17; 1987, c.45, s.18

Jurisdiction of judge and deputy judge

20Where any Act confers powers upon, or provides that a matter may be heard before, a magistrate, a deputy magistrate, a judge of a Magistrates Court or a deputy judge of a Magistrates Court, then such powers may be exercised by and such matters may be heard before a judge under this Act.

1969, c.17, s.20; 1987, c.45, s.19

Contempt powers of judge

21(1)A judge may punish for contempt persons guilty of the following acts:

(a) insolent behaviour towards the judge while engaged in any judicial proceedings;

(b) any breach of the peace, or disturbance tending to obstruct the official proceedings of the judge;

(b.1) wilful refusal by a witness to bring before the judge any writing or other thing of which the witness has possession or control; or

(c) wilful refusal by a witness, at a trial before the judge, to testify.

21(2)The punishment for any such contempt may be by

(a) removal of the offender from the court room,

(b) imprisonment of the offender in a correctional institution for a period not exceeding eight days, or

(c) the imposition of a fine of an amount not exceeding two thousand five hundred dollars.

21(3)The judge imposing such punishment shall make a record thereof.

21(4)A fine imposed under paragraph (1)(c) may be recovered under the Provincial Offences Procedure Act.

1969, c.17, s.21; 1987, c.45, s.20; 1990, c.22, s.42

Appointment of judge to another court

21.1(1)Subject to the Criminal Code (Canada), a judge who is appointed to another court after starting to hear any action, cause, matter, process, hearing or proceeding remains seized of the action, cause, matter, process, hearing or proceeding for a period of 12 weeks after the effective date of the appointment.

21.1(2) During the 12-week period referred to in subsection (1), the judge may continue to hear evidence and argument, decide the action, cause, matter, process, hearing or proceeding and make an order, impose sentence or do anything else to complete the action, cause, matter, process, hearing or proceeding as if the judge has not been appointed to another court.

21.1(3)Sections 3.1, 6 to 6.13, 19 and 22 apply with the necessary modifications to the judge.

2011, c.15, s.3

Replacement of judge

22(1)Subject to the Criminal Code, where a judge dies, resigns, is removed from office, or is absent from office because of illness or for any other cause, the chief judge may designate another judge to take up all actions, causes, matters, processes, hearings and proceedings that were pending before the judge at the time of the judge’s death, resignation, removal or absence.

22(2)A judge designated under subsection (1) shall

(a) commence again, rehear and decide the action, cause, matter, process, hearing or proceeding, or

(b) with the consent of all parties, complete the hearing of the action, cause, matter, process, hearing or proceeding and decide the same.

22(3)Notwithstanding subsection (2), where a judge is designated under subsection (1) after evidence has been taken and the adjudication made, the judge designated under subsection (1) may impose sentence.

1969, c.17, s.22; 1987, c.45, s.21; 1990, c.22, s.42

II.1

JUDICIAL REMUNERATION
COMMISSION

1998, c.31, s.1

Definition

22.01In this Part,

“Commission” means the Judicial Remuneration Commission established under section 22.02.

1998, c.31, s.1

Commission established

22.02(1)There is hereby established a commission to be known as the Judicial Remuneration Commission.

22.02(2)The Commission shall consist of three members appointed by the Lieutenant-Governor in Council as follows:

(a) one person nominated by the Minister;

(b) one person nominated by the chief judge, in consultation with the New Brunswick Provincial Court Judges Association; and

(c) subject to subsection (3), one person, who shall act as chairperson, nominated by the persons nominated under paragraphs (a) and (b).

22.02(3)If the persons nominated under paragraphs (1)(a) and (b) are unable to agree upon a person to be nominated under paragraph (c) within ten days of their nomination, then either person may notify the Minister in writing of their inability to agree.

22.02(4)Upon receipt of a notice under subsection (3), the Minister shall forthwith request the Dean of the Law School of the University of New Brunswick and the Dean of the Law School of the Université de Moncton to nominate the person under paragraph (1)(c) and the deans, in consultation with each other, shall forthwith nominate the person under paragraph (1)(c).

22.02(5)The following persons are not eligible to be appointed to the Commission:

(a) members or former members of the Law Society of New Brunswick;

(a.1) judges or former judges, or other members or former members of the judiciary in Canada;

(b) members or former members of the Legislative Assembly of New Brunswick;

(c) persons employed in those portions of the public service of the Province specified in the First Schedule of the Public Service Labour Relations Act.

22.02(5.1)Members appointed to the Commission on or after January 1, 2004, shall be appointed for a four year term.

22.02(6)A person appointed to the Commission may be reappointed for only one additional term.

22.02(7)Where there is a vacancy on the Commission, the Lieutenant-Governor in Council may appoint a person for the remainder of the unexpired term in the same manner that the person to be replaced was appointed.

22.02(8)Members of the Commission shall be paid such allowance and reasonable expenses in relation to their duties on the Commission as the Lieutenant-Governor in Council may determine.

1998, c.31, s.1; 2000, c.6, s.10; 2000, c.54, s.1; 2004, c.17, s.1

Commission to hold inquiry into judges’ remuneration

22.03(1)The Commission shall

(a) conduct an inquiry with respect to

(i) the salaries and other amounts paid to the chief judge, the associate chief judge and judges,

(ii) the adequacy of pension, vacation and sick leave benefits provided to judges, and

(iii) any proposal that seeks to provide for or eliminate a measure that affects any aspect of the remuneration conditions of judges, and

(b) provide to the Minister a report with recommendations in respect of the matters referred to in paragraph (a).

22.03(1.1)The Commission may defer holding an inquiry at the written request of the Minister or the chief judge if a matter arising from the recommendation of a previously constituted Commission is before the courts.

22.03(2)Members of the Commission have the powers of a commissioner under the Inquiries Act.

22.03(2.1)The amount to be paid for the operations of the Commission shall be that appropriated by the Legislative Assembly.

22.03(2.2)The Commission shall ensure that its expenditures do not exceed the amount so appropriated.

22.03(3)The Commission, subject to subsection (3.01), may engage such persons as it considers necessary to provide advice to the Commission with respect to the matters referred to in paragraph (1)(a).

22.03(3.01)The Commission shall not engage a person under subsection (3) unless the Minister approves the hourly rate or other rate that is to be charged by that person.

22.03(3.1)The Commission shall publish in one or more newspapers having a general circulation in the Province a notice in both official languages

(a) stating the name of the Commission,

(b) stating that the inquiry is in progress and the purpose of the inquiry,

(c) inviting the public to make oral or written submissions in relation to the inquiry,

(d) stating what action is to be taken by people who wish to make submissions, and

(e) providing additional information if the Commission so decides.

22.03(3.2)The Commission shall specify a date by which submissions for the inquiry are to be received.

22.03(4)At the inquiry, the Commission shall receive and consider submissions from

(a) the Minister,

(b) the judges or their representative, and

(c) any other interested person or body.

22.03(5)The Commission shall commence a hearing within thirty days after the date specified under subsection (3.2).

22.03(5.1)The Commission shall conclude any hearing commenced by it within sixty days after it first convenes for the hearing.

22.03(5.2)The Commission shall submit its report within ninety days after the conclusion of the hearing.

22.03(6)In making its report and recommendations, the Commission shall consider the following factors:

(a) the adequacy of judges’ remuneration having regard to the cost of living or changes in real per capita income,

(a.1) the remuneration of other members of the judiciary in Canada as well as the factors which may justify the existence of differences between the remuneration of judges and that of other members of the judiciary in Canada,

(b) economic fairness, including the remuneration of other persons paid out of the Consolidated Fund,

(c) the economic conditions of the Province, and

(d) any other factors the Commission considers relevant to its review.

1998, c.31, s.1; 2000, c.54, s.2; 2002, c.37, s.2; 2004, c.17, s.2

Commission may hold inquiry at request of Minister or chief judge

22.04(1)The Commission may at any time after the submission of its report under subsection 22.03(5.2), at the written request of the Minister or the chief judge, inquire into and make recommendations with respect to the matters referred to in paragraph 22.03(1)(a).

22.04(2)The procedure outlined in this Part shall apply with respect to the request except that the Commission shall ask for submissions from the public within thirty days after the chairperson of the Commission confirms in writing that it will act on the request.

1998, c.31, s.1; 2000, c.54, s.3; 2004, c.17, s.3

Minister to table Commission’s report in Legislative Assembly

22.05A report submitted to the Minister under this Part shall, within ninety days after it is submitted, be tabled by the Minister in the Legislative Assembly if it is then sitting, and if not, when it next sits.

1998, c.31, s.1; 2000, c.54, s.4

Action on Commission’s report

22.06(1)The recommendations of the Commission in the report

(a) may be accepted, in which case they shall be implemented with due diligence, or

(b) may be rejected in whole or in part, in which case the Minister shall advise the Commission and the Legislative Assembly as to the recommendations or the parts of the recommendations that are not being implemented.

22.06(2)The recommendations are deemed to have been accepted if the Minister does not advise the Commission and the Legislative Assembly, on tabling the report as required by section 22.05, that the recommendations have been rejected in whole or in part.

1998, c.31, s.1; 2000, c.54, s.5

III

ADMINISTRATIVE FUNCTIONS

1983, c.69, s.6

Designation of administrative tribunal

22.1(1)The Lieutenant-Governor in Council may by order designate any board, commission or other administrative tribunal as a board, commission or administrative tribunal on which a judge may be assigned to serve as chairman.

22.1(2)Where the Lieutenant-Governor in Council has designated a board, commission or an administrative tribunal under subsection (1), the Lieutenant-Governor in Council shall request the chief judge to assign a judge to serve as chairman of the board, commission or administrative tribunal for a specific term but such term shall not exceed five years.

1983, c.69, s.6

Judge as chairman

22.2(1)A judge may serve as chairman of a board, commission or other administrative tribunal designated by the Lieutenant-Governor in Council under section 22.1.

22.2(2)The chief judge shall, at the request of the Lieutenant-Governor in Council, assign a judge to serve as chairman of any board, commission or other administrative tribunal designated under section 22.1 for the period requested by the Lieutenant-Governor in Council.

22.2(3)A judge assigned to serve as chairman under subsection (2) shall perform the duties of chairman upon his or her appointment, assignment or designation as chairman by the Lieutenant-Governor in Council in accordance with the relevant provisions of the Act establishing that board, commission or administrative tribunal.

22.2(4)A judge shall not be assigned to serve as chairman of a board, commission or other administrative tribunal unless he or she has been a judge for at least two years.

22.2(5)During the period of the assignment of a judge as chairman of a board, commission or other administrative tribunal, the judge shall not perform any duties under Part II nor be assigned any other duties but he or she shall continue to receive the remuneration and other benefits payable under this Act.

22.2(6)During the period of an assignment, the judge shall continue to be subject to the provisions of Part II of this Act respecting pensions and the time he or she devotes to his or her duties under this Part shall be included in the calculation of time during which he or she performed his or her duties under Part II.

1983, c.69, s.6; 2008, c.45, s.26

Assignment of judge as chairman

22.3(1)Before the expiration of an assignment, the Lieutenant-Governor in Council may request the chief judge to assign a judge to serve as chairman for a specific period but such term shall not exceed five years.

22.3(2)The chief judge shall at the request of the Lieutenant-Governor in Council assign the judge who was previously assigned or assign another judge to serve as chairman of the board, commission or administrative tribunal.

22.3(3)A judge assigned to serve as chairman under subsection (2) shall perform the duties of chairman upon his or her appointment, assignment or designation as chairman by the Lieutenant-Governor in Council in accordance with the relevant provisions of the Act establishing that board, commission or administrative tribunal.

1983, c.69, s.6; 2008, c.45, s.26

Replacement of judge

22.4(1)Notwithstanding any other Act, if a judge is absent from his or her duties as chairman or becomes incapacitated or disabled, and is unable to act by reason of such absence, illness, infirmity, incapacity or inability, the chief judge shall at the request of the Lieutenant-Governor in Council assign a judge to act in his or her stead during the period that the judge is absent or incapacitated.

22.4(2)A judge assigned to serve as chairman in accordance with subsection (1) shall perform the duties of chairman upon his or her appointment by the Lieutenant-Governor in Council.

1983, c.69, s.6; 2008, c.45, s.26

IV

REGULATIONS

1983, c.69, s.7

Regulations

23(1)The Lieutenant-Governor in Council may make regulations

(a) Repealed: 1987, c.45, s.22

(b) prescribing records to be kept and reports and returns to be made by judges, including judges selected under subsection 7.1(2);

(c) regulating the sittings to be held and office hours to be kept by judges;

(d) regulating procedure in the Provincial Court Family Division;

(e) prescribing to whom fines, penalties forfeitures, fees and court costs collected in the court are to be paid and the manner and times for such payment;

(e.1) prescribing fees for services provided by the court;

(e.2) exempting persons or bodies from fees for services provided by the court;

(f) providing for the payment of expenses of judges, other than judges selected under subsection 4.3(2);

(g) respecting benefits to which judges appointed under subsection 2(1) are entitled, including

(i) leave of absence with or without pay,

(ii) vacation,

(iii) sick leave,

(iv) transfer of emergency, vacation and sick leave credits accumulated prior to June 18, 1969, and

(v) remuneration in relation to remand court duties on a holiday;

(g.1) prescribing the reimbursement for expenses in respect of services rendered by a judge selected under subsection 7.1(2);

(h) prescribing the duties of the chief judge;

(i) Repealed: 2000, c.P-21.1, s.39

(i.1) respecting the determination of the commuted value of a benefit for the purposes of section 17.3;

(i.2) respecting the circumstances and manner in which the portion of the benefit to which the spouse or common-law partner of a judge, or of a former judge, is entitled under section 17.3, may be dealt with, including, without limiting the generality of the foregoing, the types of instruments to which the portion may be transferred and the types of instruments that may be purchased with the portion;

(i.3) respecting the revaluation of benefits under section 17.3;

(i.4) respecting any other matter relating to a benefit to be divided on the breakdown of a marriage or common-law partnership;

(i.5) defining any word or expression used but not defined in section 17.3;

(i.6) respecting the nature of the evidence required to establish proof of age, death or spousal status for the purposes of this Act, the time within which such evidence is to be provided and the consequence of any failure to provide such evidence within that time;

(j) providing for contributions or payments payable by judges and annuities payable to judges to be integrated with contributions and benefits under the Canada Pension Plan;

(j.01) providing for the application of such other regulations made under this section to judges selected under subsection 7.1(2) as the Lieutenant-Governor in Council considers necessary;

(k) providing for the filing of medical certificates by, and standards of health required of, judges to whom section 15 is to apply; and

(k.1) Repealed: 1992, c.69, s.3

(l) generally to give effect to and for the better administration of this Act.

23(1.1)A regulation made under paragraphs (1)(f) or (g) may be made retroactive to December 1, 1998, or to any date after December 1, 1998.

23(1.2)A regulation made under paragraph (g.1) may be made retroactive to any date on or after the date that this subsection came into force.

23(2)A regulation under paragraphs (1)(i.1) to (i.5) may be made retroactive to January 1, 1997, or to any date after January 1, 1997.

23(3)A regulation under paragraph (1)(i.6) may be made retroactive.

1969, c.17, s.23; 1971, c.56, s.4; 1987, c.45, s.22; 1992, c.69, s.1, 3; 1995, c.6, s.8; 1997, c.56, s.3; 1998, c.35, s.3; 2000, c.P-21.1, s.39; 2000, c.6, s.11; 2003, c.18, s.9; 2004, c.31, s.7; 2008, c.42, s.3; 2008, c.45, s.26

Repealed

23.01Repealed: 1992, c.69, s.3

1992, c.69, s.2, 3

Regulations on recommendation of Judicial Council

23.1The Lieutenant-Governor in Council, on the recommendation of the Judicial Council, may make regulations respecting

(a) service of the notice of the formal hearing and a copy of the formal complaint under section 6.10;

(b) the procedure to be used in conducting a formal hearing referred to in section 6.10;

(c) forms under sections 6.9 and 6.10; and

(d) the payment of professional fees and disbursements of the counsel to the panel and costs associated with an inquiry or formal hearing.

1987, c.45, s.23

Commencement of section 9

24Section 9 shall come into force on day to be fixed by proclamation.

N.B. Section 9 of this Act was proclaimed and came into force March 1, 1975.

N.B. This Act is consolidated to June 10, 2011.

P-21 - Provincial Court Act

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