Acts and Regulations

Rule-59 - COSTS OF PROCEEDINGS BETWEEN PARTIES

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Full text
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,
(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.
59.03Costs on a Contested Motion
(1)Where, on the hearing of a contested motion, the court is satisfied that the motion ought not to have been brought or opposed, the court shall fix the costs of the motion and may order them to be paid forthwith.
(2)Subject to paragraph (1), the judge hearing a motion shall fix the costs thereof.
(3)Costs fixed under paragraph (2) shall be added to or deducted from costs fixed or assessed under Rule 59.08.
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 his costs.
(2)Unless ordered otherwise, where a litigation guardian is ordered to pay costs, he is entitled to recover the costs paid by him from the person under disability for whom he has acted.
59.07Costs of Abandoned Motion, Application or Appeal
(1)Where a party serves a Notice of Motion and fails to proceed thereon, he shall be deemed to have abandoned the motion and, unless ordered otherwise, the party upon whom the notice has been served is entitled to his 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 his 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
59.08Fixing and Assessing Costs
(1)Subject to Rules 59.01 and 59.02, on rendering a decision or making an order
(a) after trial of an action,
(b) on motion for judgment,
(c) disposing of a proceeding commenced by notice of application, or
(d) after hearing an appeal,
the court rendering the decision or making the order 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.
(2)On signing default judgment under Rule 21.04, costs relating to fees for solicitors’ services shall be fixed 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 he may disallow the costs of attendance of any party whose attendance he 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, he shall pay the costs of his 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 or where Rule 26.05(10), 49.09(2) or 62.15.1(9) applies, 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 his costs or a proportion of his costs is entitled on the same basis to his 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’ or ‘C’ 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’ or ‘C’ 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
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.
2022-86
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 him 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 his 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 him and, subject to appeal, his 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
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 his bill of costs and have the same assessed by the assessing officer in his judicial district.
(2)Without assessment, a sheriff shall not collect any fees, costs or expenses after he 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.
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 his client be disallowed,
(b) that the solicitor reimburse his 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 his client.
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” / TARIF « A »
TARIFF OF FEES FOR SOLICITOR’S SERVICES
ALLOWABLE TO A PARTY ENTITLED TO COSTS
ON A DECISION OR ORDER IN A PROCEEDING/

TARIF DES HONORAIRES D’AVOCAT REMBOURSABLES
À LA PARTIE QUI A DROIT AUX DÉPENS SUR UNE
DÉCISION OU SUR UNE ORDONNANCE RENDUE DANS UNE INSTANCE
Amount
Involved
Scale 1
Scale 2
Scale 3
Scale 4
Scale 5
Montant clé
Échelle 1
Échelle 2
Échelle 3
Échelle 4
Échelle 5
(de base)
(3/5)
(4/5)
(basic)
(6/5)
(7/5)
 
$  1,000
$   150
$   200
$   250
$   300
$     350
    2,000
     300
     400
     500
     600
       700
    3,000
     450
     600
     750
     900
    1,050
    4,000
     600
     800
  1,000
  1,200
    1,400
    5,000
     750
  1,000
  1,250
  1,500
    1,750
    6,000
     810
  1,080
  1,350
  1,620
    1,890
    7,000
     870
  1,160
  1,450
  1,740
    2,030
    8,000
     930
  1,240
  1,550
  1,860
    2,170
    9,000
     990
  1,320
  1,650
  1,980
    2,310
  10,000
  1,050
  1,400
  1,750
  2,100
    2,450
  15,000
  1,350
  1,800
  2,250
  2,700
    3,150
  20,000
  1,575
  2,100
  2,625
  3,150
    3,675
  25,000
  1,800
  2,400
  3,000
  3,600
    4,200
  30,000
  2,025
  2,700
  3,375
  4,050
    4,725
  35,000
  2,250
  3,000
  3,750
  4,500
    5,250
  40,000
  2,475
  3,300
  4,125
  4,950
    5,775
  45,000
  2,700
  3,600
  4,500
  5,400
    6,300
  50,000
  2,925
  3,900
  4,875
  5,850
    6,825
  60,000
  3,225
  4,300
  5,375
  6,450
    7,525
  70,000
  3,525
  4,700
  5,875
  7,050
    8,225
  80,000
  3,825
  5,100
  6,375
  7,650
    8,925
  90,000
  4,125
  5,500
  6,875
  8,250
    9,625
100,000
  4,425
  5,900
  7,375
  8,850
  10,325
 
Up to
Up to
Up to
Up to
Up to
jusqu’à
jusqu’à
jusqu’à
jusqu’à
jusqu’à
1%
2%
3%
4%
5%
Over $100,000, add a percentage of the amount over, as shown in each column
Note:
(1)On an appeal, the fees allowed shall be 40% of the sum determined under the scale above.
TARIFF “B”
TARIFF OF FEES FOR SOLICITOR’S
SERVICES ALLOWABLE TO A PARTY
ENTITLED TO COSTS ON
THE SIGNING OF DEFAULT JUDGMENT
UNDER RULE 21.04
 
Where the amount involved
Fees
 
 
does not exceed $5,000
$  200.00
exceeds $5,000 but not $15,000
    240.00
exceeds $15,000 but not $25,000
    300.00
exceeds $25,000 but not $50,000
    375.00
exceeds $50,000 but not $75,000
    450.00
exceeds $75,000 but not $100,000
    600.00
exceeds $100,000
    600.00        plus
$1.00 for each increase
of $1000.00 in amount
involved
TARIFF “C”
TARIFF OF FEES FOR SOLICITOR’S SERVICES ALLOWABLE TO A PARTY ENTITLED TO COSTS IN A PROCEEDING WHICH IS DISCONTINUED OR SETTLED BEFORE JUDGMENT OR WHERE RULE 26.05(10), 49.09(2) OR 62.15.1(9) APPLIES
87-111; 94-66; 2006-46
1.
Pleadings
(Includes preparation for, commencement of, and defence to, an action)
$75.00
 
2.
Discovery of Documents
(Includes affidavits of documents, requests to inspect, production for inspection)
40.00
 
3.
Drawing and Settling issues on stated case
50.00
 
4.
Counterclaim against an added party, a Cross-Claim, a Third Party Claim
25.00
 
5.
On setting down for trial
20.00
 
6.
Motions
(Including preparation, counsel fee and the settling, signing and entering of the order)
50.00
 
7.
Applications
(Including all preliminary proceedings)
150.00
 
8.
Oral examinations
(Each examination for discovery, examination or cross-examination of a party or witness other than at trial, including preliminary proceedings, preparation and counsel fee)
75.00
 
9.
Pre-Trial Conference
50.00
 
10.
For all Notices, Requests, Offers, Acceptances
25.00
 
11.
Preparation for Trial
(Including correspondence, summoning witnesses, pre-trial brief)
250.00
 
12.
Trial
(Including counsel fee, written argument, attendance to hear judgment)
250.00
 
13.
Judgment or Order
(Settling, signing and entering judgment or order where not included in any other item in this tariff) To the party having carriage
25.00
 
14.
Appeals
(Including preparation and settling, signing and entering order)
150.00
 
15.
On a Reference or an Accounting (Including preliminary proceedings)
225.00
 
16.
Obtaining Order to Continue and service thereof where required by the death or transmission of interest of a party
50.00
 
17.
Assessment of Costs
(The assessing officer, in his discretion, may allow or refuse costs on assessment to any party)
25.00
Notes: 
 
(1)
Where the services covered by an item in the tariff were not completed, the fees may be apportioned by the assessing officer.
 
(2)
An item of a counterclaim may be assessed as in a separate action and an item common to claim and counterclaim may be apportioned.
 
(3)
Where the amount involved does not exceed $5,000.00 and any of the criteria set out in Note (4) are applicable, then the assessing officer may increase the fees allowed up to but not to exceed 25% of the amount involved.
 
(4)
Where, in a proceeding
 
(a)the issues are complex,
 
(b)the issues are unusually important,
 
(c)unusual difficulties are involved in its conduct, or
 
(d)the amount involved exceeds $5,000.00,
 
the assessing officer may increase the fees allowed up to but not exceeding the following scale:
Amount
Involved to Nearest Whole Amount
Discontinued or Settled
Before Judgment or Where
Rule 26.05(10) or 62.15.1(9)
Applies
Where
Rule 49.09(2)
Applies
 
 
 
$ 6,000
$1,300
$1,350
7,000
1,350
1,450
8,000
1,400
1,550
9,000
1,450
1,650
10,000
1,500
1,750
11,000
1,550
1,850
12,000
1,600
1,950
13,000
1,650
2,050
14,000
1,700
2,150
15,000
1,750
2,250
20,000
1,850
2,625
25,000
1,950
3,000
30,000
2,050
3,375
35,000
2,150
3,750
40,000
2,250
4,125
45,000
2,350
4,500
50,000
2,450
4,875
60,000
2,550
5,375
70,000
2,650
5,875
80,000
2,750
6,375
90,000
2,850
6,875
100,000
2,950
7,375
When the proceeding is discontinued or settled before judgment or Rule 26.05(10) or 62.15.1(9) applies and the amount involved exceeds $100,000, add fees equal to 1% of the amount in excess of $100,000.
When Rule 49.09(2) applies and the amount involved exceeds $100,000, and fees equal to 3% of the amount in excess of $100,000.
87-111; 94-66; 2006-46
TARIFF “D”
TARIFF OF DISBURSEMENTS ALLOWABLE TO A PARTY ENTITLED TO COSTS
 
1.Witnesses
Attendance money payable to witnesses, excluding parties to the action, unless the party is required to attend under Rule 55.05:
(1)Each day of necessary attendance, $50.
(2)(a)where a witness resides in the Province of New Brunswick but outside the municipality where the trial is held, 40 cents per kilometer between his residence and the place of trial and return,
(b)where a witness resides outside the Province of New Brunswick, the minimum return air fare plus 40 cents per kilometer to and from airports, his residence and the place of trial; and
(3)Where the witness resides elsewhere than the place of trial and is required to remain at the place of trial overnight, $75 for each overnight stay.
(4)If the assessing officer is satisfied that it is reasonable, the assessing officer may adjust the costs fixed under paragraphs (1), (2) and (3).
2.Disbursements recoverable from opposite party:
(1)Attendance money paid to witness,
(2)Reasonable cost of
(a)plans
(b)models
(c)photographs
when necessary to understand the evidence,
(3)Reasonable cost of
(a)medical reports
(b)hospital records
(c)reports of experts
intended to be used at trial and which, unless the proceeding is disposed of beforehand, were supplied to the other parties at least 10 days before trial,
(4)Reasonable fees paid to an expert witness who gives evidence for each day examined and each additional day authorized by the assessing officer,
(5)Reasonable fees paid to an interpreter for services at trial or on an examination,
(6)In the discretion of the assessing officer, reasonable travelling and accommodation expenses incurred by a party in attending discovery or trial,
(7)Reasonable 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 where made exhibits,
(9)The cost of transcripts when required by the court or the rules, or where, in the discretion of the assessing officer, they were reasonably required for the preparation for trial or necessary to the understanding of the evidence,
(10)Reasonable fees paid for necessary personal service of documents,
(11)Fee paid to a clerk,
(12)Fees paid to the Registrar,
(13)Fees paid to a sheriff, and
(14)All other reasonable expenses necessarily incurred.
93-12; 2014-159