Acts and Regulations

84-104 - General

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Full text
Current to 18 April 2024
NEW BRUNSWICK
REGULATION 84-104
under the
Provincial Court Act
(O.C. 84-387)
Filed May 18, 1984
Under section 23 of the Provincial Court Act, the Lieutenant-Governor in Council makes the following Regulation:
1This Regulation may be cited as the General Regulation - Provincial Court Act.
2In this Regulation
“Act” means the Provincial Court Act.(loi)
2000-8
PAYMENT OF ANNUITY
2000-8
3(1)When a judge becomes eligible for the annuity under the Act, the annuity shall be payable in equal monthly instalments in arrears.
3(2)When a judge is eligible to receive an unadjusted pension benefit under the Canada Pension Plan, any annuity payable to the judge under the Act will be reduced by an amount equal to the product of 0.7 per cent per year of service rendered after September 1, 1966 and the average of the Years Maximum Pensionable Earnings, as defined in the Canada Pension Plan, for the year in which the judge becomes entitled to an annuity and for each of the two preceding years.
87-37; 2000-8
DIVISION OF BENEFITS ON BREAKDOWN OF A MARRIAGE OR COMMON-LAW PARTNERSHIP
98-4; 2008, c.45, s.27
3.1(1)In sections 3.2 to 3.9
“common-law partner’s portion” means the portion of the portion of the benefit or commuted value of the benefit of a judge or a former judge computed under section 3.4 to which the common-law partner of the judge or the former judge is entitled on the breakdown of their common-law partnership under a written agreement in settlement of rights arising as a consequence of the breakdown of their common-law partnership or under a decree, order or judgment made by a competent tribunal;(allocation de conjoint de fait)
“past service” means the number of years, including parts of a year, of service credited to a judge or a former judge under the Act that relate to service before the date on which the judge or the former judge became a contributor under the Act;(service antérieur)
“spouse’s portion” means the portion of the portion of the benefit or commuted value of the benefit of a judge or a former judge computed under section 3.4 to which the spouse of the judge or the former judge is entitled on marriage breakdown under a written agreement in settlement of rights arising as a consequence of marriage breakdown or under a decree, order or judgment made by a competent tribunal.(allocation de conjoint)
3.1(2)In section 17.3 of the Act and in sections 3.2 to 3.9 of this Regulation
“commuted value” means the value of a benefit that a judge or a former judge is or may be entitled to under the Act and that is to be divided under section17.3 of the Act, which value is calculated in accordance with subsection 3.2(1), (2), (3) or (4), as the case may be, and as of the date of the breakdown of his or her marriage or common-law partnership.(valeurde rachat)
3.1(3)Notwithstanding vesting provisions under the Act, a benefit shall be deemed to vest as of the date of the breakdown of a marriage or common-law partnership for the purposes of sections 3.2 to 3.9.
98-4; 2008, c.45, s.27
3.2(1)Subject to subsection (2) and except as provided for in subsections (3) and (4), the commuted value of a benefit that a judge or a former judge is entitled to under the Act and that is to be divided under section 17.3 of the Act shall not be less than the value determined in accordance with the Recommendations for the Computation of Transfer Values from Registered Pension Plans adopted by the Canadian Institute of Actuaries and effective on September 1, 1993.
3.2(2)If the Minister establishes or approves a method for determining the commuted value that is different from the method established under subsection (1), the value determined by the method established or approved by the Minister shall prevail.
3.2(3)The commuted value of a benefit that a judge would be entitled to under the Act if the judge retired, resigned or were removed from office as of the date of the breakdown of his or her marriage or common-law partnership shall be determined using
(a) the benefit formula under the Act,
(b) the benefits, salary and contribution history in existence on the date of the breakdown of the marriage or common-law partnership, as the case may be,
(c) the actuarial and economic assumptions contained in the Recommendations for the Computation of Transfer Values from Registered Pension Plans adopted by the Canadian Institute of Actuaries and effective on September 1, 1993, to the extent that they are consistent with the Act, this section and sections 3.4 to 3.9,
(d) the value of any survivor benefits under the Act either before or after the commencement of payment of the benefit,
(e) any escalated adjustment, if it is provided for under the Act,
(f) the normal retirement date or, if the Act provides for a judge to retire at a date other than the normal retirement date without any actuarial reduction to the benefit payable and the judge has met the eligibility requirements for retiring at that other date, the other date, and
(g) for the purposes of paragraph (f), age and service projected to the earliest date that a judge would qualify for an annuity under the Act.
3.2(4)If the benefit of a former judge that is an annuity or deferred annuity is to be divided on the breakdown of his or her marriage or common-law partnership under section 17.3 of the Act, the commuted value of the benefit shall be the commuted value of the annuity or deferred annuity determined using
(a) the periodic amount of the annuity or deferred annuity being paid or payable at the date of the breakdown of the marriage or common-law partnership,
(b) the actuarial and economic assumptions contained in the Recommendations for the Computation of Transfer Values from Registered Pension Plans adopted by the Canadian Institute of Actuaries and effective on September 1, 1993, to the extent that they are consistent with the Act, this section and sections 3.4 to 3.9,
(c) the value of any survivor benefits under the Act either before or after the commencement of payment of the annuity or deferred annuity, and
(d) any escalated adjustment, if it is provided for under the Act.
98-4; 2008, c.45, s.27
3.3Repealed: 2008, c.45, s.27
98-4; 2008, c.45, s.27
3.4(1)The portion of the commuted value of the benefit of a judge or a former judge that may be divided on the breakdown of his or her marriage or common-law partnership under section 17.3 of the Act shall be computed using the following formula:
a
p
=
−
×
c
b
where
p = the portion of the commuted value of the benefit that may be divided on the breakdown of the marriage or common-law partnership;
a = the number of years, including parts of a year, of service included in “b” that were purchased by and credited to the judge or the former judge in the period between the date of marriage and the date of marriage breakdown, inclusive, or between the date of common-law partnership and the date of the breakdown of the common-law partnership, inclusive, as the case may be, including past service purchased by and credited to the judge or the former judge during that period;
b = the total number of years, including parts of a year, of service credited to the judge or the former judge under the Act for which benefits were accrued by the judge or the former judge, including past service; and
c = the commuted value of the benefit calculated in accordance with subsection 3.2(1), (2), (3) or (4), as the case may be.
3.4(2)For the purposes of “b” in the formula under subsection (1), service shall be projected from the date of appointment as a judge to the earliest date that the judge would qualify for an annuity under the Act.
98-4; 2008, c.45, s.27
3.5(1)Subject to the requirements of the Income Tax Act (Canada), the spouse or common-law partner of a judge or a former judge shall direct the Minister
(a) to transfer the portion of the benefit to which the spouse or common-law partner is entitled under section 17.3 of the Act to another pension plan with the consent of the administrator of that plan or to a locked-in registered retirement savings plan, or
(b) to purchase a deferred life annuity or a life annuity with the portion of the benefit to which the spouse or common-law partner is entitled under section 17.3 of the Act.
3.5(2)Subject to the requirements of the Income Tax Act (Canada), if the spouse or common-law partner of a judge or a former judge fails to direct the Minister to make the transfer or purchase in accordance with subsection (1) within ninety days after the later of the date on which the calculation was performed or the date of the written agreement in settlement of rights arising as a consequence of the breakdown of their marriage or common-law partnership or the decree, order or judgment made by a competent tribunal, the spouse or common-law partner shall be deemed to have directed the Minister to purchase a deferred life annuity or a life annuity with the portion of the benefit to which the spouse or common-law partner is entitled under section 17.3 of the Act.
3.5(3)If the portion of the benefit to which the spouse or common-law partner of a judge or a former judge is entitled under section 17.3 of the Act exceeds the limit allowed under the Income Tax Act (Canada), the excess amount shall be paid to the spouse or common-law partner, as the case may be, in cash.
98-4; 2000-8; 2008, c.45, s.27
3.6(1)If the commuted value of a benefit of a judge or a former judge is divided under section 17.3 of the Act, the spouse’s portion shall be credited with interest at a rate not lower than the rate in subsection (2) from the date of marriage breakdown to the date on which the spouse’s portion is transferred or used for a purchase under section 3.5.
3.6(1.1)If the commuted value of a benefit of a judge or a former judge is divided under section 17.3 of the Act, the common-law partner’s portion shall be credited with interest at a rate not lower than the rate in subsection (2) from the date of the breakdown of their common-law partnership to the date on which the common-law partner’s portion is transferred or used for a purchase under section 3.5.
3.6(2)The minimum rate for the purposes of subsection (1) or (1.1) is the average of the yields of five year personal fixed term chartered bank deposit rates, published in the Bank of Canada Review as CANSIM Series B14045, over the most recent period for which the rates are available, with an averaging period equal to the number of months in the period for which interest is to be credited to a maximum of twelve months.
98-4; 2008, c.45, s.27
3.7(1)If the commuted value of the benefit of a judge is divided under section 17.3 of the Act, the annuity or deferred annuity to which the judge is entitled on retirement, resignation or removal from office shall be revalued so that it represents the annuity or deferred annuity to which the judge would have been entitled at that time had the division not been made, less the spouse’s portion or common-law partner’s portion, including any escalated adjustment calculated in accordance with the escalation formula in effect under the Act on the date of the breakdown of their marriage or common-law partnership, as the case may be, between the date of the breakdown of the marriage or common-law partnership and the date of retirement, resignation or removal from office.
3.7(2)If the commuted value of the benefit of a former judge is divided under section 17.3 of the Act and the former judge is receiving an annuity at that time, the annuity that the former judge is receiving shall be revalued so that it represents the annuity that the former judge would have been receiving at that time had the division not been made, less the spouse’s portion or common-law partner’s portion, including any escalated adjustment calculated in accordance with the escalation formula in effect under the Act on the date of the breakdown of their marriage or common-law partnership, as the case may be, between the date of the breakdown of the marriage or common-law partnership and the date of revaluation.
3.7(3)Subsections 3.2(1) and (2) apply with the necessary modifications to a judge’s benefit after it has been revalued under subsections (1) and (2).
3.7(4)If the commuted value of a benefit of a judge or a former judge is divided under section 17.3 of the Act, the contributions with interest made by the judge or the former judge shall be revalued immediately by deducting from them an amount calculated in accordance with subsection (5) as of the date of the breakdown of his or her marriage or common-law partnership, as the case may be.
3.7(5)The amount to be deducted in a revaluation under subsection (4) shall be calculated using the following formula:
a
A
=
−
×
m
×
p
b
where
A = amount to be used in revaluation;
a = the number of years, including parts of a year, of service included in “b” that were purchased by and credited to the judge or the former judge in the period between the date of marriage and the date of marriage breakdown, inclusive, or between the date of common-law partnership and the date of the breakdown of the common-law partnership, inclusive, as the case may be, including past service purchased by and credited to the judge or the former judge during that period;
b = the total number of years, including parts of a year, of service credited to the judge or the former judge under the Act for which benefits were accrued by the judge or the former judge, including past service;
m = the total contributions with interest made by the judge or the former judge as of the date of the breakdown of his or her marriage or common-law partnership; and
p = the proportion that the spouse’s portion or common-law partner’s portion, as the case may be, bears to the portion of the commuted value of the benefit computed under section 3.4.
3.7(6)For the purposes of “b” in the formula under subsection (5), service shall be projected from the date of appointment as a judge to the earliest date that the judge would qualify for an annuity under the Act.
98-4; 2008, c.45, s.27
3.8(1)The portion of the benefit to which the spouse or common-law partner of a judge or a former judge is entitled under section 17.3 of the Act shall be reduced by the spouse’s share or common-law partner’s share, as the case may be and as calculated under subsection (2), of any payments of an annuity or a deferred annuity, or both, that are made between the date of the breakdown of their marriage or common-law partnership, as the case may be, and the earlier of the date of a transfer under subsection 3.5(1) and the date of revaluation of benefits under subsections 3.7(1) and (2).
3.8(2)The spouse’s share or common-law partner’s share for the purposes of subsection (1) shall be calculated using the following formula:
D
=
P
×
p
where
D = the spouse’s share or common-law partner’s share, as the case may be;
P = payments of an annuity or a deferred annuity, or both, that are made between the date of the breakdown of the marriage or common-law partnership, as the case may be, and the earlier of the date of a transfer under subsection 3.5(1) and the date of revaluation of benefits under subsections 3.7(1) and (2), plus interest at the rate prescribed in subsection 3.6(2); and
p = the proportion that the spouse’s portion or common-law partner’s portion, as the case may be, bears to the portion of the commuted value of the benefit computed under section 3.4.
98-4; 2008, c.45, s.27
3.9This Regulation applies with the necessary modifications for the purposes of the division of benefits on the breakdown of a second or subsequent marriage or common-law partnership.
98-4; 2008, c.45, s.27
MEDICAL CERTIFICATE
4(1)A judge appointed under subsection 2(1) of the Act shall file the medical certificate referred to in paragraph 16(b) of the Act with the Minister within 30 days of being appointed.
4(2)The certificate shall be that of a medical doctor certifying that the judge is physically fit and mentally fit to carry out the normal functions of their office.
95-41; 2023-14
ACCOUNTING
5A judge shall keep a record of all criminal and penal matters brought before him.
6(1)All receipts of money resulting from fines, penalties and forfeitures imposed by a judge or judge selected under subsection 7.1(2) of the Act and in payment of court fees, court costs and security for costs shall be deposited in an account in a chartered bank of Canada in the name of “The Minister of Finance and Treasury Board - Provincial Court Account” and no other money shall be deposited therein.
6(2)At the close of business on the fifteenth and last days of each month, the money in the account referred to in subsection (1) shall be transferred to the Minister by means of a certified bank transfer payable to the order of the Minister of Finance and Treasury Board.
6(3)No money shall be withdrawn from the account referred to in subsection (1) except by means of a transfer provided for in subsection (2).
95-41; 2003, c.18, s.12; 2019, c.29, s.127
7All receipts of money by way of advances for payment of witness fees and related expenses shall be deposited in an account to be known as a “Special Account - Witness Fees - Provincial Court” in a chartered bank of Canada.
8All receipts of money by way of bail and restitution shall be deposited in an account to be known as a “Trust Account - Bail and Restitution - Provincial Court” in a chartered bank of Canada.
9Payments out of a “Special Account - Witness Fees - Provincial Court” or a “Trust Account - Bail and Restitution - Provincial Court” shall be by cheque only.
10(1)Not later than the tenth day of each month, a computer printout shall be forwarded to the Minister.
10(2)A computer printout referred to in subsection (1) shall contain particulars of all criminal and penal matters brought before a judge or judge selected under subsection 7.1(2) of the Act during the immediately preceding month and the disposition of such matters, the fines, penalties, forfeitures, court costs and fees imposed, the money received in payment of such fines, penalties, forfeitures, court costs and fees and the disposition of such money.
10(3)Repealed: 2023, c.17, s.215
95-41; 2003, c.18, s.12, 2023, c.17, s.215
11A judge shall permit and facilitate inspection by the Minister at all reasonable times of all books, records, suit papers, processes and other documents pertaining to his office.
12A judge shall not destroy or otherwise dispose of any book, record, suit paper, process or other document pertaining to his office without the permission of the Minister.
JUDGE SELECTED UNDER SUBSECTION 7.1(2) OF THE ACT
95-41; 2003, c.18, s.12
12.1(1)Sections 5, 11 and 12 and paragraphs 20(b) and (c) apply to a judge selected under subsection 7.1(2) of the Act.
12.1(2)A judge selected under subsection 4.3(2) of the Act shall be reimbursed for car expenses incurred on or after April 1, 2002, at the highest rate per kilometre payable to a person under the directive issued by the Treasury Board and entitled “Travel Policy (AD-2801)”, as amended from time to time, regardless of the actual number of kilometres travelled.
95-41; 98-44; 2000-9; 2003, c.18, s.12; 2003-44; 2016, c.37, s.155
DEPUTY JUDGE
Repealed: 95-41
95-41
13Repealed: 95-41
95-41
14Repealed: 95-41
95-41
VACATION LEAVE
15(1)A judge is entitled to an annual vacation of thirty working days to accrue at the rate of two and one-half days for each month of service.
15(2)The vacation period may be split into two or more periods of time at the option of the judge.
15(3)Unused vacation credits shall not be carried over to another calendar year except with the written consent of the Minister.
15(4)Arrangements for vacation periods of judges are to be made by the chief judge and reported to the Minister before the vacation period commences.
15(5)Upon retirement, resignation or removal from office, a judge
(a) who has unused vacation credits shall be given a cash settlement in lieu of vacation leave, or
(b) who has taken vacation to which he was not entitled shall compensate the Province therefor,
and the cash settlement or amount of compensation shall be calculated at the judge’s rate of remuneration at the time he ceased to be a judge.
15(6)Subsections (1) to (4) do not apply to a judge who has elected supernumerary status under section 4.21 of the Act.
15(7)When a judge elects supernumerary status any cash settlement or compensation under subsection (5) shall be calculated and paid as though the judge had retired at the time the election of supernumerary status takes effect.
2000-9; 2002-83; 2003, c.18, s.12
SICK LEAVE
16(1)A judge is eligible to accumulate sick leave credits at the rate of one and one-quarter days per month of service up to a maximum credit of two hundred and forty days.
16(2)Sick leave credits shall not accumulate for any month during periods of leave of absence without pay which are in excess of half the number of working days in the month of absence.
16(3)The chief judge may grant sick leave with pay for a period not exceeding fifteen working days and further sick leave may be granted by the Minister, provided that in no case shall the total leave granted exceed the number of days to the credit of the judge.
16(4)Notwithstanding subsection (1), (2) or (3), where a judge who has completed five full years of service is unable to perform his duties because of illness for a continuous period of not less than three days and the judge has no sick leave credit equal to that period, the Minister may grant to that judge leave of absence with pay for a period not exceeding fifteen working days.
16(5)There shall be deducted from any sick leave subsequently earned by a judge to whom leave of absence with pay has been granted under subsection (4), the amount of any leave granted by the Minister and no further sick leave shall be granted to that judge until the total amount of any leave granted under subsection (4) has been deducted from any sick leave subsequently earned by that judge.
16(6)The chief judge shall approve all sick leave granted and report monthly to the Minister and may require proof of illness where he considers it necessary.
16(7)This section does not apply to a judge who has elected supernumerary status under section 4.21 of the Act.
2003, c.18, s.12
EMERGENCY LEAVE
17(1)The chief judge may grant emergency leave with pay for a period not exceeding five working days.
17(2)The chief judge shall report to the Minister all emergency leave granted.
17(3)The Minister may grant further emergency leave than the period referred to in subsection (1)
(a) where there is a serious illness or death in the judge’s immediate family,
(b) where circumstances not directly attributable to the judge prevent his reporting for duty, or
(c) under such other circumstances as the Minister approves.
LEAVE OF ABSENCE WITHOUT PAY
18Leave of absence without pay may be granted by the Minister under the following conditions:
(a) in sickness, if sick leave credits are exhausted; and
(b) where he deems it expedient to do so.
REMUNERATION FOR REMAND DUTIES
2000-9
18.1(1)For the purpose of this section, a judge’s daily salary is 1/220 of the judge’s annual salary.
18.1(2)When a judge is placed on the on-call roster to perform remand court duties on a holiday, the judge is entitled to receive
(a) an additional vacation credit of one day for each holiday that the judge is on the on-call roster, or
(b) remuneration for each holiday that the judge is on the on-call roster at a rate of seventy-five per cent of the judge’s daily salary.
18.1(3)The form of remuneration a judge is to receive under subsection (2) shall be chosen by the judge.
18.1(4)Any additional vacation credits received by a judge under paragraph (2)(a) that are not used within the calendar year in which they are received, shall not be carried over to another calendar year and the judge shall receive seventy-five per cent of the judge’s daily salary for each day of vacation credit received under paragraph (2)(a) that remains unused at the end of a calendar year.
18.1(5)This section does not apply to a judge who has elected supernumerary status under section 4.21 of the Act.
2000-9; 2003, c.18, s.12; 2007-30
RETIREMENT ALLOWANCE
19(1)The Treasury Board may grant to a judge who was appointed before April 15, 1970 and retires after serving continuously for five years or more a retirement allowance equivalent to five working days’ pay for each full year of continuous service but the allowance shall not exceed one hundred and twenty-five working days’ pay.
19(2)The amount of a retirement allowance granted to a judge under subsection (1) shall be calculated on the judge’s rate of remuneration at the time he was retired.
95-41; 2000-9; 2016, c.37, s.155
TRAVEL EXPENSES AND BENEFITS
20The travel expenses of judges shall be as follows:
(a) for car expenses incurred on or after April 1, 2002, the highest rate per kilometre payable to a person under the directive issued by the Treasury Board and entitled “Travel Policy (AD-2801)”, as amended from time to time, regardless of the actual number of kilometres travelled;
(b) for meal expenses, actual and reasonable expenses accompanied by receipts or, if no receipts are provided, the allowance rate for meals as set out in the Senior Executive Travel Directive of the Treasury Board; and
(c) for all other travel expenses, expenses as provided for in the Senior Executive Travel Directive of the Treasury Board.
87-144; 88-9; 90-90; 95-41; 2000-9; 2003-44; 2016, c.37, s.155
TRANSFER OF BENEFITS
21Repealed: 2024-16
2023-14; 2024-16
CHIEF JUDGE
22The chief judge
(a) shall at the beginning of each calendar year assign judges to preside at the sittings of the court,
(b) Repealed: 95-41
(c) may hear, entertain and approve requests for exchange of duties among judges when in his opinion such requests are reasonable.
95-41
23The vacation, sick leave and service credits accumulated by judges before the coming into force of the Act shall have effect as if they had been accumulated pursuant to this Regulation.
CASE MANAGEMENT OFFICER
2014-111
23.1For the purposes of subsection 6.01(3) of the Act, a case management officer may exercise the following functions and duties:
(a) dealing with initial court appearances, with the exception of the taking of pleas on any matter and the issuing of warrants for arrest;
(b) dealing with requests for uncontested adjournments, but a case management officer may grant no more than three adjournments in a 60-day period and shall not adjourn a proceeding to which the Provincial Offences Procedure Act applies for a period longer than eight days without the consent of the defendant if the defendant is in custody;
(c) setting the time and place for the taking of a plea by a judge;
(d) setting the time and place for the disposition of a matter by trial or without a trial;
(e) if applicable, taking into account the time set under the Provincial Offences Procedure Act for the service of a witness statement or the making of an application under subsection 43(1.1) of that Act when setting the time for a trial to which that Act applies;
(f) receiving requests for preliminary inquiries;
(g) setting the time and place for a preliminary inquiry; and
(h) setting the time and place for sentencing.
2014-111
24Regulation 69-63 under the Provincial Court Act is repealed.
N.B. This Regulation is consolidated to April 18, 2024.