Application to Court of King’s Bench for rescission or variation of suspension
2023, c.17, s.162
313(1)A person whose licence was revoked and whose driving privilege was suspended, or whose driving privilege was suspended, by the Registrar under this Act may, in accordance with this section and in the cases referred to in subsection (2), apply to a judge of The Court of King’s Bench of New Brunswick for the rescission, or variation of the term, of the revocation and suspension, or of the suspension, and for an order directing the reinstatement of the applicant’s licence and driving privilege or of the applicant’s driving privilege.
313(2)An application may be made under subsection (1) in the following cases:
(a)
where, with respect to any of the cases referred to in subsection 311(2), the grounds on which the application for the rescission, or variation of the term, of the revocation and suspension, or suspension, is made, are that the rescission, or variation of the term, of the revocation and suspension, or suspension, is essential to avoid exceptional hardship, other than the loss of the applicant’s livelihood,
(b)
where the revocation and suspension was the second revocation and suspension of the applicant’s licence and driving privilege in the three years preceding the date of the revocation and suspension, or the suspension was the second suspension of the applicant’s driving privilege in the three years preceding the date of the suspension and was effected because points were assessed against the applicant for convictions for offences under this Act, the regulations, subsection 4(1) or (2) or 7(5) or (6) of the
Transportation of Dangerous Goods Act or local by-laws,
(c)
subject to subsection (3), where the revocation and suspension was the first revocation and suspension of the applicant’s licence and driving privilege in the three years preceding the date of the revocation and suspension, or the suspension was the first suspension of the applicant’s driving privilege in the three years preceding the date of the suspension, and was effected because ten points were assessed against the applicant for a conviction for an offence under the
Criminal Code (Canada),
(d)
where the revocation and suspension, or suspension, was effected because the applicant was convicted of an offence for driving a motor vehicle while the applicant’s driving privilege was suspended if the conviction was the first conviction for that offence with respect to the applicant in the three years preceding the revocation and suspension, or suspension,
(d.1)
where the revocation and suspension, or suspension, was effected because the applicant was convicted of an offence under paragraph 99(1)(
a) if the conviction was the first conviction for that offence with respect to the applicant in the three years preceding the revocation and suspension, or suspension,
(e)
where the revocation and suspension, or suspension, was effected because points were assessed against the applicant for a second conviction for an offence under this Act, the regulations, subsection 4(1) or (2) or 7(5) or (6) of the
Transportation of Dangerous Goods Act or the by-laws when the applicant held a licence issued under section 301, and
(f)
where the revocation and suspension, or suspension, was effected because the applicant was convicted of an offence for driving a motor vehicle in contravention of a restriction imposed by the Registrar on the applicant’s licence and was the second such revocation and suspension, or suspension, in the three years preceding the revocation and suspension, or suspension.
313(3)No application may be made or considered with respect to a case referred to in paragraph (2)(
c) unless the expiration date has passed for any period of prohibition from operating a motor vehicle imposed
(a)
in Canada, under the
Criminal Code (Canada), or
(b)
in a State of the United States of America, in relation to a conviction of a criminal or civil offence that, in the opinion of the Registrar, is in substance and effect equivalent to a conviction of an offence under the
Criminal Code (Canada) involving the use of a motor vehicle.
313(4)A judge of The Court of King’s Bench of New Brunswick may make an order rescinding, or varying the term of, the revocation and suspension, or the suspension, and directing, subject to the payment of the fee prescribed by regulation for reinstatement and any other money owing, and subject to the successful completion of and payment of the fee set by the Registrar for any impaired driver re-education course assigned by the Registrar under section 301, the reinstatement of the licence and driving privilege, or of the driving privilege, if,
(a)
the application states
(i)
the reasons why the applicant requires a licence, and
(ii)
the manner in which the revocation and suspension, or suspension, would result in,
(A)
in any case other than that referred to in paragraph (2)(
a), the loss of the applicant’s livelihood, or any other exceptional hardship, and
(B)
in a case referred to in paragraph (2)(
a), any exceptional hardship other than the loss of the applicant’s livelihood,
(b)
the judge is satisfied that
(i)
in any case other than that referred to in paragraph (2)(
a), the loss of the applicant’s livelihood, or any other exceptional hardship, and
(ii)
in a case referred to in paragraph (2)(
a) any exceptional hardship other than the loss of the applicant’s livelihood
would result if the revocation and suspension, or the suspension, remains in effect, and
(c)
the judge is satisfied that the reinstatement of the licence and driving privilege, or the driving privilege, is not contrary to the public interest.
313(5)An application under this section may be made by way of Notice of Application to a judge of The Court of King’s Bench of New Brunswick.
313(6)The parties to an application under this section are the Registrar and the applicant.
313(7)A Notice of Application under subsection (5) shall be served by the applicant on the Registrar in accordance with the Rules of Court.
313(8)Upon service under subsection (7), the Registrar shall deliver to the clerk of The Court of King’s Bench of New Brunswick for the judicial district in which the application is to be heard all documents in the Registrar’s possession that are relevant to the application.
313(9)An application under this section shall be heard and determined on the evidence provided by the Registrar and the applicant and upon such additional evidence as is relevant to support or repudiate any allegation contained in the application.
313(10)To the extent that they are not inconsistent with the provisions of this section, the Rules of Court apply to an application under this section.
1967, c.54, s.25; 1979, c.41, s.85; 1988, c.24, s.3; 1988, c.66, s.20; 1990, c.8, s.5; 1993, c.5, s.29; 1993, c.17, s.3; 1994, c.31, s.20; 2002, c.32, s.24; 2017, c.54, s.23; 2017, c.54, s.49; 2023, c.17, s.162