Acts and Regulations

Rule-59 - COSTS OF PROCEEDINGS BETWEEN PARTIES

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Current to 1 January 2024
COSTS
RULE 59
COSTS OF PROCEEDINGS BETWEEN PARTIES
59.01Authority of the Court
(1)Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid.
(2)Nothing in this rule shall be construed so as to interfere with the authority of the court
(a) to fix the costs of a proceeding, or a step in a proceeding, with or without reference to a tariff, instead of requiring assessment of the costs,
(b) to allow or refuse costs in respect of a particular issue or part of a proceeding,
(c) to order costs to be assessed on a solicitor and client basis, or
(d) where parties are entitled to costs from each other, to order set-off of the costs.
87-111
59.02Costs of a Proceeding
In fixing costs, the court may consider
(a) the amount claimed and the amount recovered,
(a.1) whether the proceeding could have been commenced in the Small Claims Court of New Brunswick,
(b) the apportionment of liability,
(c) the complexity of the proceeding,
(d) the importance of the issues,
(e) the conduct of any party which tended to shorten or unnecessarily lengthen the duration of the proceeding,
(f) the manner in which the proceeding was conducted,
(g) any step in the proceeding which was improper, vexatious, prolix or unnecessary,
(h) any step in the proceeding which was taken through over-caution, negligence or mistake,
(i) the neglect or refusal of any party to make an admission which should have been made,
(j) whether or not two or more defendants or respondents should be allowed more than one set of costs, where they have defended the proceeding by different solicitors, or where, although they defended by the same solicitor, they separated unnecessarily in their defence,
(k) whether two or more plaintiffs, represented by the same solicitor, initiate separate actions unnecessarily, and
(l) any other matter relevant to the question of costs.
2026-28
59.021Costs on a Proceeding that Could Have Been Commenced in the Small Claims Court
2026-28
(1)If the court renders a decision or makes an order after the trial of an action or the hearing of an appeal and determines that the proceeding could have been commenced in the Small Claims Court of New Brunswick, and costs are awarded to the plaintiff, Tariff A does not apply and the court shall fix the costs relating to fees for solicitors’ services in an amount not exceeding the amount set out in subsection 59(4) of the General Regulation under the Small Claims Act.
(2)If the court renders a decision or makes an order after the hearing of a motion for summary judgment and determines that the proceeding could have been commenced in the Small Claims Court of New Brunswick, Tariff E does not apply and no costs relating to fees for solicitors’ services shall be awarded by the court to the plaintiff.
(3)If the clerk signs a default judgment under Rule 21.04 and determines that the proceeding could have been commenced in the Small Claims Court of New Brunswick, Tariff B does not apply and the clerk shall fix the costs relating to fees for solicitors’ services in an amount not exceeding  $250.
2026-28
59.03Costs on a Contested Motion
Repealed: 2026-28
2026-28
59.04Costs on Settlement
Where a proceeding is settled on the basis that a party shall pay or recover costs, and the amount of such costs is not determined by the settlement, the costs may, upon the filing of a copy of the minutes of settlement, be assessed in accordance with Tariff ‘C’.
59.05Where Action Dismissed for Want of Jurisdiction
Where a proceeding is dismissed for want of jurisdiction, the court shall nevertheless have jurisdiction over the costs of that proceeding.
59.06Costs of Litigation Guardian
(1)The court may order a successful party to pay the costs of a litigation guardian of a party under disability who is a defendant or respondent but only to the extent that the successful party is able to recover them from the party liable for the successful party’s costs.
(2)Unless ordered otherwise, if a litigation guardian is ordered to pay costs, the litigation guardian is entitled to recover the costs paid from the person under disability for whom the litigation guardian has acted.
2026-28
59.07Costs of Abandoned Motion, Application or Appeal
(1)Where a party serves a Notice of Motion and fails to proceed thereon, the party shall be deemed to have abandoned the motion and, unless ordered otherwise, the party upon whom the notice has been served is entitled to the party’s costs on the motion.
(2)A party who serves a Notice of Motion may countermand it by notice served on the opposite party, who is then entitled to costs on the motion.
(3)The costs of an abandoned motion may be assessed under Rule 59.11, upon production of the Notice of Motion together with an affidavit that the party who served the Notice of Motion failed to proceed thereon, or upon the production of the notice of countermand, and, if the costs are not paid within 7 days after assessment, the party entitled may enforce the certificate of assessment in the same manner as a judgment.
(4)This Rule applies, with any necessary modification, to a Notice of Application and to a Notice of Appeal.
2019-33; 2026-28
59.08Fixing and Assessing Costs
(1)Subject to Rules 59.01, 59.02 and 59.021, on rendering a decision or making an order after the trial of an action or the hearing of an appeal, the court shall fix the costs relating to fees for solicitors’ services in accordance with Tariff A and direct by whom and to whom they are to be paid.
(1.1)Subject to Rules 59.01, 59.02 and 59.021, on rendering a decision or making an order after the hearing of a motion or an application, the court shall fix the costs relating to fees for solicitors’ services in accordance with Tariff E and direct by whom and to whom they are to be paid.
(2) Subject to Rule 59.021, on signing a default judgment under Rule 21.04, the clerk shall fix the costs relating to fees for solicitors’ services in accordance with Tariff B.
(3)On the assessment of costs to be paid out of a fund or estate, the assessing officer may direct what parties are to attend on the assessment and the assessing officer may disallow the costs of attendance of any party whose attendance the assessing officer considers unnecessary because the interest of such party in the fund or estate is small or remote or sufficiently protected by other interested parties.
(4)Unless ordered otherwise, where several actions are brought on one bond, recognizance, promissory note, bill of exchange or other instrument, costs shall be recovered in one action only, at the election of the plaintiff, and, in the other actions, only the actual disbursements shall be recovered.
(5)Where one of the persons constituting a class represented by one solicitor insists on being represented by a different solicitor, the person shall pay the costs of their own solicitor and all further costs thereby caused to any of the other parties.
(6)Where parties are entitled to receive costs from each other, the costs may be adjusted by setoff.
(7)Where a proceeding is discontinued or settled before judgment, the party and party costs relating to fees for solicitors’ services shall be assessed in accordance with Tariff “C”.
(8)Unless ordered otherwise, a party who is entitled to costs or a proportion of costs is entitled on the same basis to disbursements assessed in accordance with Tariff D.
(8.1)Unless ordered otherwise, a party who is entitled to costs fixed or assessed in accordance with Tariff A, B, C or E is entitled to an amount equal to the tax payable under Division II of the Excise Tax Act (Canada) on the amount assessed in accordance with Tariff A, B, C or E where it is established by affidavit to the satisfaction of the assessing officer that
(a) the services for which the costs are fixed or assessed are a taxable supply as defined in subsection 123(1) of the Excise Tax Act (Canada),
(b) the party or person liable to pay all or a portion of the cost of litigation on the party’s behalf is not entitled to claim an input tax credit under the Excise Tax Act (Canada) in respect of the services for which the costs are fixed or assessed, and
(c) the party or person liable to pay all or a portion of the cost of litigation on the party’s behalf is liable to pay the tax under Division II of the Excise Tax Act (Canada).
85-5; 93-12; 94-66; 2006-46; 2026-28
59.09Amount Involved
(1)In the tariffs, the ‘amount involved’ shall be
(a) where the main issue is a monetary claim which is allowed in whole or in part, an amount determined having regard to
(i) the amount allowed,
(ii) the complexity of the proceeding, and
(iii) the importance of the issues.
(b) where the main issue is a monetary claim which is dismissed, an amount determined having regard to
(i) the amount of damages provisionally assessed by the court, if any,
(ii) the amount claimed, if any,
(iii) the complexity of the proceeding, and
(iv) the importance of the issues.
(c) where there is a substantial non-monetary issue involved and whether or not the proceeding is contested, an amount determined having regard to
(i) the complexity of the proceeding, and
(ii) the importance of the issues, or
(d) an amount agreed upon by the parties.
(2)The ‘amount involved’ shall be determined
(a) where the proceeding is concluded by a decision or order, by the court,
(b) where the proceeding is settled or discontinued
(i) by agreement of the parties, or
(ii) when the parties do not agree, by the assessing officer.
59.10Assessing Officer
(1)Where it is necessary to have costs assessed on a party and party basis, the assessing officer shall be
(a) in the Court of Appeal, the Registrar, and
(b) in the Court of King’s Bench, the clerk of the judicial district in which the proceeding has been conducted.
(2)Where it is necessary to have costs assessed on a solicitor and client basis, the assessing officer shall be
(a) in the Court of Appeal, the Registrar, and
(b) in the Court of King’s Bench
(i) the Registrar, or
(ii) when authorized by the Registrar, the clerk of the judicial district in which the proceeding has been conducted.
(3)Subject to Rules 59.01, 59.02 and 59.021, the assessing officer may, in the assessing officer’s discretion, allow or refuse costs on assessment for a proceeding or a step in a proceeding.
2022-86; 2026-28
59.11Procedure on Assessment of Costs
(1)A party entitled to an assessment of costs may file a bill of costs with the assessing officer, obtain from the assessing officer a Notice of Appointment to Assess Costs (Form 59A), and serve the Notice and a copy of the bill of costs on every party interested in the assessment at least 7 days before the date fixed for assessment.
(2)Where a party is entitled to costs and refuses or neglects to proceed to assessment within a reasonable time, any party liable to pay such costs may obtain from the assessing officer a Notice to Deliver a Bill of Costs for Assessment (Form 59B) and serve a copy on every interested party at least 21 days before the date fixed for the assessment.
(3)Upon being served with a Notice to Deliver a Bill of Costs for Assessment, the person required to deliver a bill of costs shall file it with the assessing officer and serve a copy on every interested party at least 7 days before the date fixed for the assessment.
(4)Repealed: 2018-77
(5)Where under paragraph (2) a party fails to deliver a bill of costs for assessment at the appointed time, to the prejudice of another, the assessing officer may allow the defaulting party a nominal or other sum of costs so as to prevent the other party being prejudiced by such default.
(6)On an assessment of costs, the assessing officer shall certify (Form 59C), as of the date of the assessment of costs, the amount of the costs assessed by the assessing officer and, subject to appeal, the Certificate is final with respect to all parties who have received notice of the assessment.
(7)Unless ordered otherwise, disbursements, other than fees paid to officers of the court, shall not be allowed unless the payment thereof or the liability therefor is established by affidavit.
(8)An appeal from an assessment of costs may be taken
(a) on motion to the court within 15 days from the date of the assessment of costs, or
(b) if the assessment relates to a matter in the Court of Appeal, on motion to a judge of the Court of Appeal in accordance with Rule 62.30.
99-71; 2004-127; 2018-77; 2026-28
59.12Costs
(1)A sheriff claiming any fees, expenses or remuneration that have not been assessed shall, upon being required by a party and on payment of the prescribed fee, furnish such party with a copy of the sheriff’s bill of costs and have the same assessed by the assessing officer in the sheriff’s judicial district.
(2)Without assessment, a sheriff shall not collect any fees, costs or expenses after the sheriff has been required to have the same assessed.
(3)Either the sheriff or the party requiring assessment may obtain an appointment for the assessment and the procedure thereon shall be the same as in the case of an assessment between party and party.
2026-28
59.13Liability of Solicitor for Costs
(1)Where a solicitor for a party has acted in disregard of the interests of justice and, without reasonable cause, has caused costs to be wasted or incurred improperly by delay, negligence or other default, the court may order
(a) that costs between the solicitor and the solicitor’s client be disallowed,
(b) that the solicitor reimburse the solicitor’s client in whole or in part for costs which the client has been ordered to pay to another party, and
(c) that the solicitor personally pay the costs of any party.
(2)An order under paragraph (1) may be made by the court on its own motion or on the motion of any party to the proceeding, but such an order shall not be made unless the solicitor is given a reasonable opportunity to make representations to the court.
(3)In an order against a solicitor under this subrule, the court may direct the manner in which notice is to be given to the solicitor’s client.
2026-28
59.14Interpretation
In this Rule, “court” means The Court of King’s Bench of New Brunswick or The Court of Appeal of New Brunswick, as the context requires.
85-5; 2022-86
TARIFF A
COSTS RELATING TO FEES FOR
SOLICITORS’ SERVICES AWARDED IN
AN ACTION OR AN APPEAL
 
Amount
Involved
Scale 1
(80%
of Scale 2)
Scale 2
(Basic)
Scale 3
(120%
of Scale 2)
 
$0 − $20,000
$1,600
$2,000
$2,400
$20,000.01 −  $75,000
$3,200 + 32% of
amount over  $20,000
$4,000 + 40% of
amount over  $20,000
$4,800 + 48% of
amount over  $20,000
$75,000.01 −  $100,000
$20,800 + 20% of
amount over $75,000
$26,000 + 25% of
amount over  $75,000
$31,200 + 30% of
amount over  $75,000
$100,000.01 −  $125,000
$25,800 + 16% of
amount over $100,000
$32,250 + 20% of
amount over  $100,000
$38,700 + 24% of
amount over  $100,000
$125,000.01 −  $150,000
$29,800 + 8% of
amount over  $125,000
$37,250 + 10% of
amount over  $125,000
$44,700 + 12% of
amount over  $125,000
$150,000.01
and over
 $31,800 + 4% of
amount over  $150,000
$39,750 + 5% of
amount over  $150,000
$47,700 + 6% of
amount over  $150,000
Note:
 
(1)On an appeal, the fees allowed are 40% of the sum determined under the scale above.
2026-28
TARIFF B
COSTS RELATING TO FEES FOR
SOLICITORS’ SERVICES AWARDED ON
THE SIGNING OF A DEFAULT JUDGMENT
UNDER RULE 21.04
 
If a default judgment is signed without a hearing, the plaintiff is entitled to the following costs awarded against the defendant:  
Amount involved
Costs awarded
 
$0 − $20,000
 $1,000
$20,000.01 − $100,000
 $1,500
$100,000.01 and over
 $2,500
2026-28
TARIFF C
COSTS RELATING TO FEES FOR
SOLICITORS’ SERVICES AWARDED IN
A PROCEEDING WHICH IS
DISCONTINUED OR SETTLED
BEFORE JUDGMENT
If a proceeding is discontinued or settled before judgment, a party entitled to costs is entitled to 33% of the sum determined under Scale 2 of Tariff A.
87-111; 94-66; 2006-46; 2026-28
TARIFF D
DISBURSEMENTS ALLOWABLE TO
A PARTY ENTITLED TO COSTS
 
1.Witnesses
Attendance money payable to witnesses, excluding expert witnesses and parties to the action, unless the party is required to attend under Rule 55.05:
(1)the minimum wage* for 8 hours or for the number of hours that the witness is required to attend, whichever is greater;
(2)if a witness is required to travel, reasonable travel expenses, including but not limited to, mileage** and airfare; and
(3)if a witness is required to remain at the place of trial overnight, reasonable expenses for accommodations.
*The hourly minimum wage is the rate prescribed in the Minimum Wage Regulation − Employment Standards Act.
**Mileage is the kilometric rate set in the Travel Expenses Policy issued by the Treasury Board, as amended from time to time.
2.Reasonable expenses necessarily incurred for the conduct of the proceeding, in an amount the assessing officer considers reasonable, including but not limited to:
(1)attendance money paid to a witness under section 1 of this Tariff;
(2)the cost of the following, when necessary to understand the evidence:
(a)plans;
(b)models;
(c)photographs;
(3)the cost of the following documents if intended to be used at trial and supplied to the other parties at least 10 days before the trial, unless the proceeding is disposed of beforehand:
(a)medical reports;
(b)hospital records;
(c)reports of experts;
(4)fees paid to an expert witness who gives evidence, including fees for reasonable preparation time;
(5)fees paid to an interpreter for services at trial or on an examination, including a discovery;
(6)travelling and accommodation expenses incurred by a party in attending a trial or an examination, including a discovery;
(7)the cost of copies of documents or authorities prepared for the use of the court and supplied to the opposite party;
(8)the cost of certified copies of documents such as judgments, orders, birth, marriage and death certificates, abstracts of title, deeds, mortgages and other registered documents if made exhibits;
(9)the cost of transcripts when required by the court or the Rules, or if they were reasonably required for the preparation for trial or necessary to the understanding of the evidence;
(10)fees paid for necessary personal service of documents;
(11)fees paid to a clerk;
(12)fees paid to the Registrar; and
(13)fees paid to a sheriff.
93-12; 2014-159; 2026-28
TARIFF E
COSTS RELATING TO FEES FOR
SOLICITORS’ SERVICES AWARDED
FOLLOWING THE HEARING OF
A MOTION OR APPLICATION
The following guidelines apply for costs awarded following the hearing of a motion or application:
1.Costs shall be assessed by the presiding judge at the time an order is made after the hearing of a motion or application.
2.Despite guideline 1, if a motion or application involves the final disposition of a matter or if consideration of an offer to settle under Rule 49 may arise, the presiding judge may, on request of a party, defer the assessment of costs until after a decision on the merits has been rendered.
3.Unless ordered otherwise, the costs awarded are payable without delay.
4.In the exercise of discretion to award costs following the hearing of a motion or application, the presiding judge may award costs that are just and appropriate in the circumstances. The presiding judge may multiply the maximum amounts in the range of costs set out in this tariff by 2 to 6 times, depending on the following factors:
(1)the complexity of the matter;
(2)the importance of the matter to the parties;
(3)the reasonableness of the parties;
(4)the amount of time and effort involved in preparing for and conducting the hearing;
(5)the amount involved; and
(6)whether the proceeding is determinative of the entire matter.
5. For each day of hearing in excess of one day,  $1,500 shall be added to the amount awarded in the range of costs set out in this tariff.
Type of motion
Range of Costs
  
  
Procedural motions heard in one day or less*
 
 $750 − $1,500
Other motions heard in one day or less
 
$2,000 − $3,000
Motions for summary judgment, mini trial or applications heard in one day or less
 
$2,500 − $4,000
Note: *Procedural motions in the context of this tariff include those motions where any of the following relief or comparable relief is sought:
1.an order for the production of undertakings;
2.an order for an extension of time for service;
3.an order for the appointment of a representative (Rule 11);
4.an order for the removal of a solicitor from the record (Rule 17.04);
5.an order for substituted service (Rule 18.04);
6.an order for the filing of an Affidavit of Documents or a supplementary Affidavit of Documents (Rule 31.03 or Rule 31.06);
7.an order for the production for inspection of documents (Rule 31.04 or 31.11);
8.an order for an examination for discovery, including an order under Rule 32.10 or 32.12; and
9.an order with respect to an objection on an examination for discovery (Rule 33.10(2)(c)).
2026-28