Acts and Regulations

C-16.1 - Conflict of Interest Act

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Repealed on 1 September 2011
CHAPTER C-16.1
Conflict of Interest Act
Assented to June 28, 1978
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
Repealed: R.S.N.B. 2011, Schedule A
DEFINITIONS
Definitions
1In this Act
“blind trust” means the placing of any real or personal property in a trust where the trustee is other than a spouse or child of the settlor and where 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 whatever and includes an office or employment;(activité professionnelle)
“Cabinet Minister” means a Minister appointed under the Executive Council Act;(ministre)
“conflict of interest” means one or more of the circumstances which is a conflict of interest under this Act;(conflit d’intérêts)
“Deputy Minister” means a deputy head as defined in the Civil Service Act;(sous-ministre)
“designated judge” means a judge of The Court of Queen’s Bench of New Brunswick or The Court of Appeal of New Brunswick designated pursuant to subsection 8(1);(juge désigné)
“executive staff member” means such person as may be appointed by a Cabinet Minister to serve him 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 thereof;(président d’une société de la Couronne)
“member of the Legislative Assembly” Repealed: 1999, c.36, s.1
“registered district association” Repealed: 1999, c.36, s.1
“registered political party” Repealed: 1999, c.36, s.1
“shareholder” means a person holding, or for whom is held by another person otherwise than through a blind trust, more than five per cent of the issued share capital of an incorporated company. (actionnaire)
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
MEMBERS OF THE LEGISLATIVE ASSEMBLY
Repealed: 1999, c.36, s.2
1999, c.36, s.2
Repealed
2Repealed: 1999, c.36, s.3
1979, c.11, s.2; 1980, c.11, s.2, 3; 1984, c.27, s.5; 1989, c.23, s.21; 1991, c.59, s.52; 1999, c.36, s.3
CABINET MINISTERS
Repealed: 1999, c.36, s.4
1999, c.36, s.4
Repealed
3Repealed: 1999, c.36, s.5
1999, c.36, s.5
Repealed
3.1Repealed: 1999, c.36, s.6
1980, c.11, s.4; 1999, c.36, s.6
EXECUTIVE STAFF MEMBERS
Conflict of interest
4It is a conflict of interest for an executive staff member, during the period he holds such office,
(a) to be a person, or to be a director, officer or shareholder of any person which is an incorporated company, holding or engaging in, undertaking or executing, directly or indirectly, alone or with any other, by himself or by the interposition of a trustee or third party excepting a blind trust, any contract or agreement with Her Majesty, or with any 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 any person referred to in paragraph (a) other than an incorporated company in which he is not a shareholder;
(c) to investigate, adjust, settle or determine any 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 any public institution in the Province;
(d) to carry on business other than as an executive staff member, except as may be determined by the designated judge pursuant to section 10 not to be a conflict of interest;
(e) to accept any fees, gifts, gratuities or other benefits which could reasonably be deemed to influence in any manner the decision of the Cabinet Minister in whose office he serves in respect to the carriage of the functions of that Cabinet Minister;
(f) to make use in any way, to his personal gain or the gain of others, of any privileged information or position to which he may have access or to which he is privy; and
(g) to hold or in any way be involved with any office or position, the duties, responsibilities or interests of which may interfere in any way with his duties, responsibilities and interests as an executive staff member.
Repealed (b), 1979, c.11, s.2; New (b), 1980, c.11, s.5
DEPUTY MINISTERS
Conflict of interest
5It is a conflict of interest for a Deputy Minister, during the period he holds such office,
(a) to be a person, or to be a director, officer or shareholder of any person which is an incorporated company, holding or engaging in, undertaking or executing, directly or indirectly, alone or with any other, by himself or by the interposition of a trustee or third party excepting a blind trust, any contract or agreement with Her Majesty, or with any 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 any person referred to in paragraph (a) other than an incorporated company in which he is not a shareholder;
(c) to carry on business other than as a Deputy Minister, except as may be determined by the designated judge pursuant to section 10 not to be a conflict of interest;
(d) to accept any fees, gifts, gratuities or other benefits which could reasonably be deemed to influence his decision as a Deputy Minister in manner in respect to the carriage of his functions as Deputy Minister;
(e) to make use in any way, to his personal gain or the gain of others, of any privileged information or position to which he may have access or to which he is privy; and
(f) to hold or in any way be involved with any office or position, the duties, responsibilities or interests of which may interfere in any way with his duties, responsibilities and interests as Deputy Minister.
Repealed (b), 1979, c.11, s.2; New (b), 1980, c.11, s.6
HEADS OF CROWN CORPORATIONS
Conflict of interest
6It is a conflict of interest for a person who is a head of a Crown corporation, during the period he holds such office,
(a) to be a person, or to be a director, officer or shareholder of any person which is an incorporated company, holding or engaging in, undertaking or executing, directly or indirectly, alone or with any other, by himself or by the interposition of a trustee or third party excepting a blind trust, any contract or agreement with Her Majesty, or with any 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 any person referred to in paragraph (a) other than an incorporated company in which he 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 designated judge pursuant to section 10 not to be a conflict of interest;
(d) to accept any fees, gifts, gratuities or other benefits which could reasonably be deemed to influence his decision as head of a Crown corporation in any manner in respect to the carriage of his functions as head of a Crown corporation;
(e) to make use in any way, to his personal gain or the gain of others, of any privileged information or position to which he may have access or to which he is privy; and
(f) to hold or in any way be involved with any office or position, the duties, responsibilities or interests of which may interfere in any way with his duties, responsibilities and interests as head of a Crown corporation.
Repealed (b), 1979, c.11, s.2; New (b), 1980, c.11, s.7
Conflict of interest for person associated with a Crown corporation
6.1It 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 or part-time basis, as a member of the board of directors thereof, during the period he holds such office,
(a) to be a person, or to be a director, officer or shareholder of any person which is an incorporated company, holding or engaging in, undertaking or executing, directly or indirectly, alone or with any other, by himself or by the interposition of a trustee or third party excepting a blind trust, any contract or agreement with the Crown corporation with which he is associated or with any officer, servant, agent, employee, department, division or subsidiary thereof;
(a.1) to be a surety or guarantor for any person referred to in paragraph (a) other than an incorporated company in which he is not a shareholder;
(b) to accept any fees, gifts, gratuities or other benefits which could reasonably be deemed to influence his decision as a member of the board of directors of a Crown corporation in any manner in respect to the carriage of his functions as a member of the board of directors of a Crown corporation;
(c) to make use in any way, to his personal gain or the gain of others, of any privileged information or position to which he may have access or to which he is privy; and
(d) to hold or in any way be involved with any office or position, the duties, responsibilities or interests of which may interfere in any way with his 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
Exceptions
7Nothing in sections 4, 5, 6 and 6.1 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 his being
(a) in receipt of a superannuation allowance, a pension for disability caused by military service, a pension under the Old Age Assistance Act, Chapter O-5 of the Revised Statutes of Canada, 1970, or the Old Age Security Act, Chapter O-6 of the Revised Statutes of Canada, 1970, or any 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 any medical, health, welfare or legal aid program of the Government of the Province;
(c) in receipt of, or by reason of his 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 upon 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;
(d) a person referred to in paragraphs 4(a), 5(a), 6(a) and 6.1(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 Public Purchasing Act and not purchased pursuant to tender; or
(ii) a contract or agreement for employment on a full or part-time basis, whether personal or through a collective bargaining or other arrangement, entered into bona fide with any department of the Government of the Province, any Crown agency or Crown corporation, any other branch of the public service, or any 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.
1979, c.11, s.4
Exceptions
7.1Where under this Act it is not a conflict of interest 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
Disclosure under oath
8(1)All executive staff members, Deputy Ministers and heads of Crown corporations shall, prior to taking office under their respective appointments, or if in office immediately prior to the coming into force of this Act then within one hundred and twenty days after the coming into force of this Act, disclose under oath in the form prescribed by regulation, to a judge of The Court of Queen’s Bench of New Brunswick or The Court of Appeal of New Brunswick to be designated pursuant to the direction of the Lieutenant-Governor in Council, all information pertaining to their involvement or the involvement of their spouses or dependent children with or ownership of real and personal property of any nature or kind, and all business and financial involvement of any nature whatsoever, save and 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 pursuant to subsection (1) shall also be made on the occasion of any change in the involvement with or ownership of any such property, business and financial involvement disclosed, prior to or upon such 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; but nothing in this subsection shall be deemed to require that dealings in the issued share capital of companies which are listed on any stock exchange, or dealings in commodities through any commodity exchange, be disclosed other than once in each year following the first disclosure provided for pursuant to subsection (1).
8(3)Repealed: 1979, c.11, s.7
8(4)Upon the application of any person who states under oath that he 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 designated judge that there is a reasonable possibility that a conflict of interest may exist or that the Act has not been complied with, the designated judge shall inquire into the allegation, and in the event he finds that a conflict of interest exists or that a violation has occurred, subsections 10(2) to 10(5) apply.
8(5)For the purposes of exercising jurisdiction and of making an order under this Act, the designated judge has all the powers, rights and privileges that are vested in The Court of Queen’s Bench of New Brunswick with respect to the attendance and examination of witnesses, the production and inspection of documents, the enforcement of orders and all other matters necessary or proper therefor; and the designated judge may establish such rules of procedure as he considers appropriate.
1979, c.10, s.1; 1979, c.11, s.5, 6, 7, 8; 1979, c.41, s.24; 1997, c.21, s.2; 1999, c.36, s.7
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 spouse or a dependent child, whether in trust or otherwise, within a period of one year preceding the coming into force of this Act or the taking of office, whichever is later, or at any time thereafter, shall be deemed to be his property during the period it is held by his spouse or his child.
1999, c.36, s.8
DIVESTITURE
Finding and order of designated judge
10(1)Upon the filing of the written disclosures required pursuant to section 8, the designated judge shall forthwith examine them and may inquire into any matter related to the information so disclosed; and, upon finding that the person so disclosing is not in breach of any of the provisions of this Act, shall so advise that person of the finding.
10(2)Upon finding that a person is in breach or has been in breach of any of the provisions of this Act, the designated judge shall advise that person of such finding and shall direct him to comply with an order as follows:
(a) Repealed: 1999, c.36, s.9
(b) in the case of a breach of paragraph 4(a), 5(a) or 6(a), to discontinue his association with any contract covered thereby, or if a director or officer of an incorporated company to resign such position or if a shareholder to divest himself of the shares or place them in a blind trust;
(c) in the case of a breach of paragraph 4(b), 5(b), 6(b) or 6.1(a.1) to discontinue his association as surety;
(d) Repealed: 1999, c.36, s.9
(e) in the case of a breach of paragraph 4(c), to resign his position in respect thereof;
(f) in the case of a breach of paragraph 4(f), 5(e) or 6(e), to return any gain realized thereby;
(g) in the case of a breach of paragraph 4(d), 5(c) or 6(c), to completely disassociate himself with the other business, in which case the person in breach may effect such disassociation by means of a blind trust or otherwise;
(h) in the case of a breach of paragraph 4(e), 5(d) or 6(d), to return the fee, gift, gratuity or other benefit, or its equivalent in money if it is unable to be returned in specie;
(i) in the case of a breach of paragraph 4(g), 5(f) or 6(f), to resign the interfering office or position described.
10(3)The finding of the designated judge under subsection (1) and the satisfaction of any order made by the designated judge pursuant to subsection (2) is prima facie proof of compliance with this Act.
10(4)In any case of an order made by the designated judge to deal with involvement with or of any of the conflict of interest items contemplated under this Act, the person so required shall prior to his accepting or continuing his position satisfy the designated judge that such requirements have in fact been met by such date as the designated judge shall specify in the order.
10(5)Any finding or order of the designated judge may be appealed to the Court of Appeal by any person within thirty days of the making of the finding or order.
10(6)Repealed: 1979, c.11, s.9
1979, c.11, s.2, 9; 1980, c.11, s.10; 1999, c.36, s.9
Potential conflict of interest
11In addition to advising a person of a finding pursuant to subsection 10(1) or making an order pursuant to subsection 10(2), the designated judge may advise such person of any situation disclosed that in his opinion is a potential conflict of interest.
POST-EMPLOYMENT RESTRICTIONS
1999, c.36, s.10
Post-employment restrictions
11.1(1)A former Deputy Minister, head of a Crown corporation or executive staff member shall not, unless twelve months have expired after the date when he or she ceased to be employed as a Deputy Minister, head of a Crown corporation or executive staff member, as the case may be,
(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.
11.1(2)Subsection (1) 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.
11.1(3)A person who violates or fails to comply with subsection (1) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a Category I offence.
11.1(4)In this section “Crown” means Her Majesty in right of New Brunswick and includes Crown corporations.
1999, c.36, s.10
ENFORCEMENT
Offence and penalty
12(1)Subject to subsection (2), a person who has a conflict of interest commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category I offence and in addition to, or in lieu of fine or imprisonment, the court may make one or more of the following orders, namely
(a) order the person to resign the person’s office or position on such terms and conditions as the court prescribes,
(b) prohibit the person from holding that office or position or any other specified office or position during such period of time as the court prescribes,
(c) make any order that the designated judge is authorized to make under subsection 10(2), or
(d) make any other order that the court considers appropriate in the circumstances,
and a failure to comply with any such order shall be deemed to be a contempt in the face of the court and is punishable as such.
12(2)Notwithstanding any other provision of this Act, a person who has complied with subsections 8(1) and 8(2) and who
(a) is found by the designated judge not to have a conflict of interest with respect to any matter disclosed, or
(b) has complied with any order made by the designated judge under subsection 10(2),
does not have a conflict of interest under this Act.
1979, c.11, s.10; 1990, c.61, s.25
Regulations
13The 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) Repealed: 1979, c.11, s.11
(c) enumerating Crown corporations in respect of which this Act applies.
1979, c.11, s.11
Commencement
14This Act or any provision thereof comes into effect on a day to be fixed by proclamation.
N.B. This Act was proclaimed and came into force March 1, 1979.
N.B. This Act is consolidated to September 1, 2011.