Acts and Regulations

Rule-16 - ORIGINATING PROCESS

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Current to 1 January 2024
COMMENCEMENT OF PROCEEDINGS
RULE 16
ORIGINATING PROCESS
16.01How Proceedings Commenced
(1)Unless provided otherwise by an Act, all civil proceedings, except a counterclaim against a plaintiff only or a cross-claim, shall be commenced by issuing an originating process.
(2)An originating process is issued when the original, a copy, and the filing fee prescribed by these rules
(a) are delivered to the office of the clerk of the judicial district in which the proceeding is to be commenced, or
(b) are sent by prepaid registered mail or prepaid courier addressed to the clerk of the judicial district in which the proceeding is to be commenced.
92-3
16.02Where Leave Required
Where leave of the court is required to commence a proceeding, the application for leave shall be made by preliminary motion.
16.03By Statement of Claim or Notice of Action
(1)Unless provided otherwise by these rules, the originating process for the commencing of a proceeding shall be a Notice of Action with Statement of Claim Attached (Form 16A).
(2)Where there is insufficient time to prepare a Statement of Claim, an action may be commenced by issuing a Notice of Action (Form 16B) upon which shall be endorsed a brief statement of the nature of the claim; but, unless ordered otherwise, the plaintiff shall file his Statement of Claim (Form 16C) within 30 days of the issuing of the Notice of Action.
(3)The Notice of Action and Statement of Claim shall be served together in accordance with Rule 16.08(2).
16.04By Notice of Application
Subject to Rule 16.041, when an Act or rule authorizes an application or motion to the court without requiring the institution of an action, a Notice of Application (Form 16D) may be used and, in addition thereto, a proceeding may be so commenced where the relief claimed is
(a) for the opinion, advice or direction of the court on a question affecting the rights of any person in respect of the administration of the estate of a deceased person or in respect of the administration of a trust,
(b) for an order directing the executors, administrators or trustees to do or abstain from doing a particular act in respect of an estate or trust for which they are responsible,
(c) for the removal or replacement of one or more executors, administrators or trustees, or for fixing their compensation,
(d) for the administration of the estate of a deceased person, or for the execution of a trust, by the court,
(e) for a determination of rights which depend upon the interpretation of a deed, will, contract or other instrument, or upon the interpretation of a statute, order-in-council, regulation, local government by-law or resolution,
(f) for the declaration of a beneficial interest in or charge upon land including the nature and extent thereof, or for settling the priority of interests or charges,
(g) for the approval of an arrangement or compromise or for the approval of a purchase, sale, mortgage, lease or variation of trust where such approval is necessary or desirable,
(h) for the partition or sale of land or an estate or interest therein,
(i) for an injunction, mandatory order, declaration, the appointment of a receiver, or other consequential relief ancillary to relief claimed in a proceeding properly commenced by a Notice of Application, or
(j) in respect of any other matter where it is unlikely that there will be a substantial dispute of fact.
2017, c.20, s.87; 2023-8
16.04.1By Notice of Motion – particular proceedings
2023-8
In the case of a Motion to Vary or Motion to Change a final order under the Divorce Act (Canada) or the Family Law Act, or a Consent Motion to Vary or Consent Motion to Change a final order under either of those Acts, Rules 16.01(2), 16.06(2) and (3), 16.07 and 16.09 apply to the Notice of Motion with the necessary modifications.
2023-8
16.05Preliminary Motion
Where these rules authorize a motion to be made to the court before or without the commencement of a proceeding, it shall be made by Preliminary Motion (Form 37B).
16.06Style of Proceeding and Content
(1)In an action, the party commencing the proceeding shall be called the plaintiff, and the opposite party, the defendant.
(2)In a Notice of Application, the party commencing the proceeding shall be called the applicant, and the opposite party the respondent; and, where the proceeding is brought under a particular rule or Act, the style of proceeding shall be:
Under (designating the rule or Act)
 
Between:
A.B.,
Applicant
 
and
 
C.D.,
Respondent
 
(3)An originating process shall contain the names of the parties and the capacity in which they are made parties to the proceeding, as well as the principal place of residence of the party commencing the proceeding.
16.07Clerk on Receipt of Originating Process
Upon receiving an originating process, a copy, and the filing fee prescribed by these rules, the clerk shall
(a) assign to the originating process a court file number,
(b) enface on the original and copy the court file number and the date of issue,
(c) return the copy to the plaintiff or applicant, or his solicitor, and
(d) retain and file the original.
2023-8
16.08Time for Service
(1)Where an action is commenced by issuing a Notice of Action with Statement of Claim Attached, it shall be served within 6 months thereafter.
(2)Where an action is commenced by issuing a Notice of Action, the Notice of Action and the Statement of Claim shall be served together within 6 months after the Notice of Action is issued.
(3)A Notice of Application shall be served at least 10 days before the date upon which the application is to be heard except where it is served outside New Brunswick, in which case it shall be served at least 20 days before the date upon which the application is to be heard.
16.09Striking Out or Amending
An originating process which is not a pleading may be struck out or amended in the same manner as a pleading.