Acts and Regulations

Rule-19 - SERVICE OUTSIDE NEW BRUNSWICK

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Current to 1 January 2024
SERVICE
RULE 19
SERVICE OUTSIDE NEW BRUNSWICK
19.01Service Outside New Brunswick Without Leave
Without a court order, a party to a proceeding may be served outside New Brunswick with an originating process where the proceeding against that party consists of a claim or claims
(a) in respect of real property situate in New Brunswick, or the administration of the estate of a deceased person in respect of such property,
(b) in respect of personal property situate in New Brunswick, or the administration of the personal property of a deceased person who, at the time of his death, was resident in New Brunswick,
(c) for the construction of a deed, will, contract or obligation affecting real or personal property situate in New Brunswick, or the personal property of a deceased person who, at the time of his death, was resident in New Brunswick,
(d) for the rectification, enforcement or setting aside of a deed, will, contract or obligation affecting real or personal property in New Brunswick,
(e) against a trustee in respect of the execution of a trust contained in a written instrument where the assets of the trust include real or personal property situate in New Brunswick,
(f) in respect of a mortgage, charge or lien on real or personal property situate in New Brunswick,
(g) in respect of a contract where
(i) the contract was made in New Brunswick,
(ii) the contract was made by or through an agent trading or residing in New Brunswick on behalf of a principal trading or residing outside New Brunswick,
(iii) the contract provides that it is to be governed by or interpreted in accordance with the laws of New Brunswick,
(iv) the parties thereto have agreed that the courts of New Brunswick shall have jurisdiction to entertain any action in respect of the contract, or
(v) a breach has been committed in New Brunswick, even though such breach was preceded by or accompanied by a breach outside New Brunswick which rendered impossible the performance of that part of the contract which ought to have been performed in New Brunswick,
(h) in respect of a tort committed in New Brunswick,
(i) in respect of damage sustained in New Brunswick arising from a tort or breach of contract wherever committed,
(j) for an injunction ordering such party to do, or refrain from doing, anything in New Brunswick or affecting real or personal property situate in New Brunswick,
(k) for support or maintenance,
(l) for parenting time or decision-making responsibility with respect to a minor or maintenance of, or contact with, a minor,
(m) upon a judgment of a court outside New Brunswick,
(n) which, by any Act, may be made against a person outside New Brunswick by a proceeding commenced in New Brunswick,
(o) against a person outside New Brunswick who is a necessary or proper party to a proceeding properly brought against a person in New Brunswick,
(p) against a person ordinarily resident in New Brunswick, or carrying on business there,
(q) properly the subject matter of a third party claim or cross-claim under these rules, or
(r) made by or on behalf of the Crown or a local government to recover money owing for taxes or other debts due to the Crown or to the local government.
2017, c.20, s.87; 2021-17
19.02Service Outside New Brunswick With Leave
(1)The court may in any case grant leave to serve an originating process outside New Brunswick where one or more of the parties reside in New Brunswick and such service appears necessary to secure the just determination of a proceeding affecting such party or parties.
(2)A motion for leave to serve a party outside New Brunswick may be made without notice and shall be supported by an affidavit or other evidence showing where that person may be found, and the grounds upon which the motion is made.
(3)Where leave is required, and service is made outside New Brunswick without leave, and the court is satisfied that leave would have been granted on a motion before service, the court may validate such service.
19.03Additional Requirements for Service Outside New Brunswick
(1)An originating process served outside New Brunswick without leave shall disclose the facts relied upon in support of such service.
(2)Where an originating process is served outside New Brunswick with leave of the court, there shall be served with the originating process a copy of the order granting leave and a copy of any affidavit used to obtain the order.
19.04Manner of Service Outside New Brunswick
(1)In this subrule
Central Authority means the Central Authority designated by a contracting state for purposes of the Convention;
contracting state means a contracting state under the Convention;
Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters concluded on November 15, 1965.
(2)An originating process or other document to be served outside New Brunswick in a jurisdiction that is not a contracting state may be served in the manner provided by these rules for service in New Brunswick, or in the manner provided by the law of the place where service is made, if such service could reasonably be expected to give actual notice.
(3)An originating process or other document to be served outside New Brunswick in a contracting state shall be served
(a) through the Central Authority in the contracting state (Forms 19A, 19B and 19C), or
(b) in a manner that is permitted by article 10 of the Convention and that would be permitted by these rules if the document were being served in New Brunswick.
(4)Proof of service outside New Brunswick may be made
(a) in the manner provided by these rules for proof of service in New Brunswick,
(b) in the manner provided by the law of the place where service is made, or
(c) in accordance with the Convention, if service is effected in a contracting state by the Central Authority.
94-24
19.05Motion to Set Aside Service Outside New Brunswick
(1)A party who has been served outside New Brunswick with an originating process may apply to the court by Notice of Motion (Form 37A)
(a) within the time for filing and serving a pleading or affidavit in response, and
(b) before filing and serving such pleading or affidavit,
for an order setting aside such service and staying or dismissing the proceeding.
(2)An order may be made under paragraph (1) on the ground that
(a) service outside New Brunswick is not authorized by these rules or by an order made pursuant thereto,
(b) the court does not have jurisdiction, or
(c) New Brunswick is not a convenient forum for the trial or hearing of the proceeding.
(3)A party served outside New Brunswick shall not be held to have submitted to the jurisdiction of the court by serving a Notice of Motion pursuant to paragraph (1).