Acts and Regulations

2011, c.129 - Conflict of Interest Act

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Current to 1 January 2024
2011, c.129
Conflict of Interest Act
Deposited May 13, 2011
Definitions
1The following definitions apply in this Act.
“blind trust” means the placing of any real or personal property in a trust if the trustee is other than a spouse or child of the settlor and the settlor or beneficiary has no control over the trust estate during the trust, other than by way of receipt of income. (fiducie sans droit de regard)
“business” includes the carrying on of a profession, trade, occupation, calling, manufacture or undertaking of any kind and includes an office or employment. (activité professionnelle)
“Cabinet Minister” means a Minister appointed under the Executive Council Act. (ministre)
“Commissioner” means the Integrity Commissioner appointed under section 2 of the Integrity Commissioner Act.(commissaire)
“conflict of interest” means one or more of the circumstances which is a conflict of interest under this Act. (conflit d’intérêts)
“court” means The Court of King’s Bench of New Brunswick, and includes a judge of that court.(cour)
“Deputy Minister” means a deputy head as defined in the Civil Service Act. (sous-ministre)
“designated judge” Repealed: 2019, c.19, s.1
“executive staff member” means a person appointed by a Cabinet Minister to serve him or her on a full-time basis, whether or not of the status of a Deputy Minister, and who is paid out of public funds, but does not include secretarial or other similar staff of a Cabinet Minister. (adjoint ministériel)
“head of a Crown corporation” means the chief administrative officer of a Crown corporation enumerated by regulation who is employed on a full-time basis to manage the day-to-day affairs of the Crown corporation. (président d’une société de la Couronne)
“shareholder” means a person holding, or for whom is held by another person other than through a blind trust, more than 5% of the issued share capital of an incorporated company. (actionnaire)
1978, c.C-16.1, s.1; 1979, c.11, s.1; 1979, c.41, s.24; 1980, c.11, s.1; 1984, c.C-5.1, s.46; 1997, c.21, s.1; 1999, c.36, s.1; 2019, c.19, s.1; 2023, c.17, s.38
Conflict of interest for an executive staff member
2It is a conflict of interest for an executive staff member, during the period he or she holds that office,
(a) to be a person, or to be a director, officer or shareholder of a person which is an incorporated company, holding or engaging in, undertaking or executing, directly or indirectly, alone or with any other, by himself or herself or by the interposition of a trustee or third party excepting a blind trust, a contract or agreement with the Crown, or with a public officer, department or agency with respect to the public service of the Province or under which any public money of the Province is expended for any service or work, matter or thing;
(b) to be a surety or guarantor for a person referred to in paragraph (a) other than an incorporated company in which he or she is not a shareholder;
(c) to investigate, adjust, settle or determine a claim, matter or difference to which the Government of the Province is a party, or to investigate or inquire into the management of affairs of a public institution in the Province;
(d) to carry on business other than as an executive staff member, except as may be determined by the Commissioner under section 10 not to be a conflict of interest;
(e) to accept a fee, gift, gratuity or other benefit which could reasonably be considered to influence in any manner the decision of the Cabinet Minister in whose office he or she serves in respect to the carriage of the functions of that Cabinet Minister;
(f) to make use in any way, to his or her personal gain or the gain of others, of any privileged information or position to which he or she may have access or to which he or she is privy; and
(g) to hold or in any way be involved with an office or position, the duties, responsibilities or interests of which may interfere in any way with his or her duties, responsibilities and interests as an executive staff member.
1978, c.C-16.1, s.4; 1979, c.11, s.2; 1980, c.11, s.5; 2019, c.19, s.1; 2023, c.17, s.38
Conflict of interest for a Deputy Minister
3It is a conflict of interest for a Deputy Minister, during the period he or she holds that office,
(a) to be a person, or to be a director, officer or shareholder of a person which is an incorporated company, holding or engaging in, undertaking or executing, directly or indirectly, alone or with any other, by himself or herself or by the interposition of a trustee or third party excepting a blind trust, a contract or agreement with the Crown, or with a public officer, department or agency with respect to the public service of the Province or under which any public money of the Province is expended for any service or work, matter or thing;
(b) to be a surety or guarantor for a person referred to in paragraph (a) other than an incorporated company in which he or she is not a shareholder;
(c) to carry on business other than as a Deputy Minister, except as may be determined by the Commissioner under section 10 not to be a conflict of interest;
(d) to accept a fee, gift, gratuity or other benefit which could reasonably be considered to influence his or her decision as a Deputy Minister in any manner in respect to the carriage of his or her functions as Deputy Minister;
(e) to make use in any way, to his or her personal gain or the gain of others, of any privileged information or position to which he or she may have access or to which he or she is privy; and
(f) to hold or in any way be involved with an office or position, the duties, responsibilities or interests of which may interfere in any way with his or her duties, responsibilities and interests as Deputy Minister.
1978, c.C-16.1, s.5; 1979, c.11, s.2; 1980, c.11, s.6; 2019, c.19, s.1; 2023, c.17, s.38
Conflict of interest for a head of a Crown corporation
4It is a conflict of interest for a person who is a head of a Crown corporation, during the period he or she holds that office,
(a) to be a person, or to be a director, officer or shareholder of a person which is an incorporated company, holding or engaging in, undertaking or executing, directly or indirectly, alone or with any other, by himself or herself or by the interposition of a trustee or third party excepting a blind trust, a contract or agreement with the Crown, or with a public officer, department or agency with respect to the public service of the Province or under which any public money of the Province is expended for any service or work, matter or thing;
(b) to be a surety or guarantor for a person referred to in paragraph (a) other than an incorporated company in which he or she is not a shareholder;
(c) to carry on business other than as a head of a Crown corporation, except as may be determined by the Commissioner under section 10 not to be a conflict of interest;
(d) to accept a fee, gift, gratuity or other benefit which could reasonably be considered to influence his or her decision as head of a Crown corporation in any manner in respect to the carriage of his or her functions as head of a Crown corporation;
(e) to make use in any way, to his or her personal gain or the gain of others, of any privileged information or position to which he or she may have access or to which he or she is privy; and
(f) to hold or in any way be involved with an office or position, the duties, responsibilities or interests of which may interfere in any way with his or her duties, responsibilities and interests as head of a Crown corporation.
1978, c.C-16.1, s.6; 1979, c.11, s.2; 1980, c.11, s.7; 2019, c.19, s.1; 2023, c.17, s.38
Conflict of interest for a person associated with a Crown corporation
5It is a conflict of interest for a person, other than the head of a Crown corporation, who is associated with a Crown corporation, whether on a full-time or part-time basis, as a member of the board of directors of the Crown corporation, during the period he or she holds that office,
(a) to be a person, or to be a director, officer or shareholder of a person which is an incorporated company, holding or engaging in, undertaking or executing, directly or indirectly, alone or with any other, by himself or herself or by the interposition of a trustee or third party excepting a blind trust, a contract or agreement with the Crown corporation with which he or she is associated or with an officer, servant, agent, employee, department, division or subsidiary of the Crown corporation;
(b) to be a surety or guarantor for a person referred to in paragraph (a) other than an incorporated company in which he or she is not a shareholder;
(c) to accept a fee, gift, gratuity or other benefit which could reasonably be considered to influence his or her decision as a member of the board of directors of a Crown corporation in any manner in respect to the carriage of his or her functions as a member of the board of directors of a Crown corporation;
(d) to make use in any way, to his or her personal gain or the gain of others, of any privileged information or position to which he or she may have access or to which he or she is privy; and
(e) to hold or in any way be involved with an office or position, the duties, responsibilities or interests of which may interfere in any way with his or her duties, responsibilities and interests as a member of the board of directors of a Crown corporation.
1979, c.11, s.3; 1980, c.11, s.8
When sections 2, 3, 4 and 5 do not apply
6Nothing in sections 2, 3, 4 and 5 applies to an executive staff member, a Deputy Minister, a head of a Crown corporation or a member of the board of directors of a Crown corporation respectively by reason of that person being
(a) in receipt of a superannuation allowance, a pension for disability caused by military service, a pension under the Old Age Security Act (Canada), a loan from the Federal Government or compensation as the result of an expropriation;
(b) in receipt of or entitled to receive payment in connection with a medical, health, welfare or legal aid program of the Government of the Province;
(c) in receipt of, or by reason of that person having received or having agreed to receive any service, commodity, fee, refund, compensation, rebate, loan, guarantee, subsidy or other benefit that is authorized under any Act to be extended to members of the public generally, or to specific classes of the public, if the receipt of the benefit is on terms common to all persons receiving similar benefits and if no special benefit or preference not available to other members of the public or of the class of the public to which an Act applies is obtained by him or her;
(d) a person referred to in paragraphs 2(a), 3(a), 4(a) or 5(a), in respect of
(i) a contract or agreement for the sale or purchase of goods or services not required to be purchased in accordance with the Procurement Act and not purchased in accordance with a tender, or
(ii) a contract or agreement for employment on a full-time or part-time basis, whether personal or through a collective bargaining or other arrangement, entered into in good faith with a department of the Government of the Province, a Crown agency or Crown corporation, another branch of the public service, or a body or office, not being part of the public service, the operation of which is effected through money appropriated for the purpose and paid out of the Consolidated Fund.
1978, c.C-16.1, s.7; 1979, c.11, s.4; 2012, c.20, s.31
Security for due performance of obligations under surety bond or guarantee
7If it is not a conflict of interest under this Act to be a surety or guarantor for a person, it is not a conflict of interest to have charged, hypothecated, mortgaged or pledged any real or personal property as security for the due performance of the obligations under the surety bond or guarantee.
1980, c.11, s.9
Disclosure under oath
8(1)All executive staff members, Deputy Ministers and heads of Crown corporations, before taking office under their respective appointments, shall disclose under oath, in the form prescribed by regulation, to the Commissioner all information pertaining to their, their spouses’ or their dependent children’s involvement with, or ownership of, real and personal property of any nature or kind and all business and financial involvement of any nature, except the following:
(a) the primary residence owned or controlled by any such person;
(b) the primary recreational property owned or controlled by any such person;
(c) a working farm owned or controlled by any such person;
(d) automobiles owned or controlled by any such person;
(e) items of domestic, household or personal use or ownership including cash, non-convertible bonds, trust and bank certificates and registered retirement savings plans which are not self-administered; and
(f) any type of property which has been placed in a blind trust.
8(2)The disclosure to be made under subsection (1) shall also be made on the occasion of any change in the involvement with or ownership of any property, business and financial involvement disclosed, before or on the change being effected, or on the involvement with or ownership of additional property, or business and financial involvement, subsequent to the making of the disclosure, and in any event once in each year following the original disclosure.
8(3)Nothing in subsection (2) shall be deemed to require that dealings in the issued share capital of companies which are listed on a stock exchange, or dealings in commodities through a commodity exchange, be disclosed other than once in each year following the first disclosure provided for under subsection (1).
8(4)On the application of a person who states under oath that he or she believes that a person referred to in subsection (1) has a conflict of interest under this Act or has not complied with this Act, and who produces sufficient evidence in support of the allegation to satisfy the Commissioner that there is a reasonable possibility that a conflict of interest may exist or that the Act has not been complied with, the Commissioner shall inquire into the allegation, and if the Commissioner determines that a conflict of interest exists or that a contravention has occurred, subsections 10(3) to (6) apply.
8(5)Repealed: 2019, c.19, s.1
1978, c.C-16.1, s.8; 1979, c.10, s.1; 1979, c.11, s.5, s.6, s.7, s.8; 1979, c.41, s.24; 1997, c.21, s.2; 1999, c.36, s.7; 2019, c.19, s.1
Transferred property
9For the purposes of this Act, property transferred by an executive staff member, a Deputy Minister or a head of a Crown corporation to his or her spouse or a dependent child, whether in trust or otherwise, within a period of one year preceding March 1, 1979, or the taking of office, whichever is later, or at any later time, shall be deemed to be his or her property during the period it is held by his or her spouse or his or her child.
1978, c.C-16.1, s.9; 1999, c.36, s.8
Determination and referral for court order
2019, c.19, s.1
10(1)On the filing of the written disclosures required under section 8, the Commissioner shall examine them without delay and may inquire into any matter related to the disclosed information.
10(2)On determining that a person filing a written disclosure is not in contravention of any provision of this Act, the Commissioner shall advise the person of that determination.
10(2.1)On determining that a person is in contravention or has been in contravention of a provision of this Act, the Commissioner shall advise the person of that determination and may make recommendations to the person with respect to any action required to be taken in order to comply with the provision.
10(3)If a person fails to follow a recommendation made by the Commissioner under subsection (2.1), the Commissioner may apply to the court for one or more of the following orders:
(a) in the case of a contravention of paragraph 2(a), 3(a) or 4(a),
(i) an order that the person discontinue the person’s association with the relevant contract or agreement,
(ii) an order that the person resign his or her position as a director or officer of an incorporated company, or
(iii) an order that the person divest himself or herself of shares or place them in a blind trust;
(b) in the case of a contravention of paragraph 2(b), 3(b), 4(b) or 5(b), an order that the person discontinue the person’s association as surety or guarantor;
(c) in the case of a contravention of paragraph 2(c), an order that the person resign the person’s position in respect of the matter;
(d) in the case of a contravention of paragraph 2(d), 3(c) or 4(c), an order that the person completely disassociate himself or herself from the other business, in which case the person in contravention may effect the disassociation by means of a blind trust or otherwise;
(e) in the case of a contravention of paragraph 2(e), 3(d) or 4(d), an order that the person return the fee, gift, gratuity or other benefit, or its equivalent in money if it is unable to be returned;
(f) in the case of a contravention of paragraph 2(f), 3(e) or 4(e), an order that the person return any gain realized;
(g) in the case of a contravention of paragraph 2(g), 3(f) or 4(f), an order that the person resign from an office or position.
10(4)Each of the following is proof, in the absence of evidence to the contrary, of a person’s compliance with this Act: 
(a) the Commissioner has determined under subsection (2) that the person is not in contravention of any provision of this Act;
(b) the person has followed a recommendation made by the Commissioner under subsection (2.1); and
(c) the person has complied with an order made by the court under subsection (3).
10(5)In any case of an order made by the court to deal with involvement with or of any of the conflict of interest items contemplated under this Act, the person so required, before accepting or continuing his or her position, shall satisfy the Commissioner that those requirements have been met by the date the court specifies in the order.
10(6)A determination of the Commissioner or an order of the court may be appealed to The Court of Appeal of New Brunswick by any person within 30 days after the making of the determination or order.
1978, c.C-16.1, s.10; 1979, c.11, s.2, s.9; 1980, c.11, s.10; 1999, c.36, s.9; 2019, c.19, s.1
Potential conflict of interest
11In addition to advising a person of a determination made under subsection 10(2) or (2.1), the Commissioner may advise the person of any situation disclosed that, in the Commissioner’s opinion, is a potential conflict of interest.
1978, c.C-16.1, s.11; 2019, c.19, s.1
Post-employment restrictions
12(1)In this section, “Crown” means the Crown in right of the Province and includes Crown corporations.(Couronne)
12(2)Unless 12 months have expired after the date when a person ceases to be employed as a Deputy Minister, a head of a Crown corporation or an executive staff member, the former Deputy Minister, head of a Crown corporation or executive staff member, as the case may be, shall not
(a) accept a contract or benefit from the Crown, or
(b) make representations on his or her own behalf or on behalf of any other person with respect to a contract or benefit.
12(3)Subsection (2) does not apply
(a) to contracts or benefits with respect to further duties in service of the Crown, or
(b) if the conditions on which the contract or benefit is awarded, approved or granted are the same for all persons similarly entitled.
12(4)A person who violates or fails to comply with subsection (2) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a Category I offence.
1999, c.36, s.10; 2023, c.17, s.38
Offence and penalty
13(1)Subject to subsection (3), a person who has a conflict of interest commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category I offence and in addition to, or instead of fine or imprisonment, the court may make one or more of the following orders:
(a) order the person to resign the person’s office or position on the terms and conditions that the court prescribes;
(b) prohibit the person from holding that office or position or any other specified office or position during the period of time that the court prescribes;
(c) make any order set out in subsection 10(3); or
(d) make any other order that the court considers appropriate in the circumstances.
13(2)Failure to comply with an order under subsection (1) shall be deemed to be contempt in the face of the court and is punishable as such.
13(3)Despite any other provision of this Act, a person does not have a conflict of interest under this Act if the person has complied with subsections 8(1) and 8(2) and
(a) the Commissioner has determined that the person does not have a conflict of interest with respect to any matter disclosed,
(a.1) the person has followed a recommendation made by the Commissioner under subsection 10(2.1),
(b) the person has complied with an order made by the court under subsection 10(3).
1978, c.C-16.1, s.12; 1979, c.11, s.10; 1990, c.61, s.25; 2019, c.19, s.1
Regulations
14The Lieutenant-Governor in Council may make regulations
(a) prescribing forms as may be required for the carrying out of the provisions of this Act;
(b) enumerating Crown corporations in respect of which this Act applies.
1978, c.C-16.1, s.13; 1979, c.11, s.11
N.B. This Act was proclaimed and came into force September 1, 2011.
N.B. This Act is consolidated to June 16, 2023.