Acts and Regulations

J-2 - Judicature Act

Full text
Current to 7 June 2024
CHAPTER J-2
Judicature Act
Definitions
1In this Act and in the Rules
“action” means a civil proceeding commenced by notice of action, or in such other manner as is prescribed by the Rules;(action)
“cause” includes an action, suit or other original proceeding between a plaintiff and a defendant;(cause)
“Chief Justice” means the Chief Justice of New Brunswick or the Chief Justice of the Court of King’s Bench, as the subject or context requires, and wherever the words “Chief Justice of New Brunswick” or the words “Chief Justice”, meaning Chief Justice of New Brunswick, appear in this Act or the Rules of Court, the same shall, during a vacancy in the office of the Chief Justice of New Brunswick or during the Chief Justice’s absence, be deemed to include the puisne judge of the Court of Appeal who has the most seniority and who is not absent; and whenever the words “Chief Justice of the Court of King’s Bench” or the words “Chief Justice”, meaning the Chief Justice of the Court of King’s Bench, appear in this Act or in the Rules of Court, the same shall, during a vacancy in the office of the Chief Justice of the Court of King’s Bench or during the Chief Justice’s absence, be deemed to include the puisne judge of the Court of King’s Bench who has the most seniority and who is not absent;(juge en chef)
“Court” means the Court of Appeal or the Court of King’s Bench, as the subject or context requires;(Cour)
“Court en banc or en banc means the Court of Appeal;(Cour en banc) ou (en banc)
“Court of Appeal” means The Court of Appeal of New Brunswick and includes a judge thereof;(Cour d’appel)
“Court of King’s Bench” means The Court of King’s Bench of New Brunswick and includes a judge of that court;(Cour du Banc du Roi)
“Court of Queen’s Bench” Repealed: 2023, c.17, s.129
“defendant” includes every person served with a notice of action or process, or with notice of, or entitled to attend any proceedings;(défendeur)
“deputy registrar” means a deputy appointed under section 61;(registraire adjoint)
“existing” means existing at the commencement of this Act;(existant)
“Family Division” means the Family Division of the Court of King’s Bench and includes a judge of the Family Division;(Division de la famille)
“judge” means the Chief Justice of New Brunswick, the Chief Justice of the Court of King’s Bench, any Associate Chief Justice of the Court of King’s Bench or any judge or supernumerary judge of the Court of Appeal or the Court of King’s Bench;(juge)
“judge of the Family Division” includes any other judge hearing and determining a proceeding in the Family Division;(juge de la Division de la famille)
“judgment” includes decree;(jugement)
“matter” includes every proceeding in the Court not in a cause;(question)
“oath” includes solemn affirmation and statutory declaration;(serment)
“order” includes rule;(ordonnance)
“party” includes every person served with notice of or attending any proceeding, although not named in the record;(partie)
“petitioner” includes every person making an application to the Court either by petition, motion or summons, otherwise than as against a defendant;(requérant)
“plaintiff” includes every person asking relief, otherwise than by way of counterclaim as a defendant, against any other person by any form of proceeding, whether the same is taken by suit, petition, motion, summons or otherwise;(demandeur)
“pleading” includes a petition or summons, or statements in writing of the claim or demand of a plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to a counterclaim of a defendant;(plaidoirie écrite)
“proper officer” means an officer to be ascertained as follows:(fonctionnaire compétent)
(a) where a duty to be discharged under this Act or under the Rules is one that has been discharged by any officer, such officer shall continue to be the proper officer to discharge the duty,
(b) where a new duty is to be discharged, the proper officer to discharge it is the officer who has previously discharged duties of a like nature, or who may from time to time be directed to discharge the duty by the Chief Justice;
“Registrar” means Registrar of the Court;(registraire)
“Rules” or “Rules of Court” means the Rules of Court made under this Act and includes Forms;(Règles) ou (Règles de procédure)
“suit” includes action;(instance)
“Trial Division” means the Trial Division of the Court of King’s Bench and includes a judge thereof.(Division de première instance)
R.S., c.120, s.1; 1966, c.70, s.1; 1973, c.53, s.1; 1978, c.32, s.1; 1979, c.36, s.2; 1983, c.43, s.1; 1986, c.4, s.28; 1987, c.6, s.48; 2001, c.29, s.1; 2023, c.17, s.129; 2024, c.18, s.1
Conflict between Act and Rules of Court
1.1Where a conflict exists between the terms used or procedures prescribed in this Act and those used or prescribed in the Rules of Court, this Act shall be construed to be consistent with the Rules of Court.
1981, c.36, s.1; 1983, c.43, s.2
CONSTITUTION OF COURT
Court of Appeal and Court of King’s Bench
2023, c.17, s.129
2(1)The Supreme Court of New Brunswick as constituted before September 4, 1979, shall be continued as courts of record under the names of The Court of Appeal of New Brunswick and The Court of Queen’s Bench of New Brunswick.
2(1.1)On September 8, 2022, The Court of Queen’s Bench of New Brunswick is continued as a court of record under the name The Court of King’s Bench of New Brunswick.
2(2)The Court of Appeal shall consist of the Chief Justice of New Brunswick, five other judges, any former judge of the Court of Appeal who is a supernumerary judge and any former Chief Justice of New Brunswick who is a judge or a supernumerary judge.
2(3)The Court of King’s Bench shall consist of the Chief Justice of the Court of King’s Bench, not more than twenty-five other judges, any former judge of the Court of King’s Bench who is a supernumerary judge and any former Chief Justice of the Court of King’s Bench who is a judge or a supernumerary judge.
2(3.1)The Court of King’s Bench may include one or two Associate Chief Justices who shall be counted in the number of judges authorized under subsection (3).
2(4)The Court of King’s Bench shall consist of two divisions, namely:
(a) the Trial Division, and
(b) the Family Division.
2(4.1)Of the judges of the Court of King’s Bench eleven shall be judges of the Family Division.
2(4.2)A judge of the Family Division is ex officio a judge of the Trial Division, and the Chief Justice of the Court of King’s Bench may from time to time direct that any judge of the Family Division hear and determine proceedings brought in the Trial Division.
2(4.3)The Chief Justice of the Court of King’s Bench may hear and determine proceedings brought in the Trial Division or the Family Division and for such purposes the Chief Justice of the Court of King’s Bench is a judge of the Trial Division or the Family Division, as the case may be.
2(5)For each office of judge established under subsections (2) and (3), there is the additional office of supernumerary judge that any judge of the Courts may elect to hold upon compliance with and upon meeting the qualifications under the Judges Act, chapter J-1 of the Revised Statutes of Canada, 1970.
2(6)For each office of Chief Justice established under subsections (2) and (3), there is established the additional office of judge that a Chief Justice may elect to hold upon compliance with and upon meeting the qualifications under the Judges Act, chapter J-1 of the Revised Statutes of Canada, 1970.
R.S., c.120, s.2; 1954, c.49, s.1; 1958, c.43, s.1; 1963 (2nd Sess.), c.24, s.1; 1965, c.23, s.1; 1966, c.70, s.2; 1971, c.42, s.1; 1973, c.53, s.2; 1975, c.32, s.1; 1978, c.32, s.2; 1979, c.36, s.1, 3; 1981, c.36, s.2; 1982, c.34, s.1; 1983, c.43, s.3; 1985, c.32, s.1; 1987, c.6, s.48; 2001, c.29, s.2; 2008, c.30, s.1; 2023, c.17, s.129
Oath of judge
3(1)A judge of the Court of King’s Bench or the Court of Appeal shall, as soon as may be after acceptance and before entering upon the duties of this office,
(a) take and subscribe an oath of office, or
(b) make and subscribe an affirmation of office,
as follows:
“I, ______________________________ , do swear (or solemnly affirm) that I will well and truly serve our Sovereign Lord, King Charles III, in the office of ______________________ and I will do right to all manner of people according to law, without fear or favour, affection or ill will. (In the case where an oath is taken add “So help me God”)”
3(2)The oath or affirmation shall be administered by the Lieutenant-Governor to the Chief Justice of New Brunswick, by the Chief Justice of New Brunswick to the Chief Justice of the Court of King’s Bench and to the other judges of the Court of Appeal, and by the Chief Justice of the Court of King’s Bench to the other judges of the Court of King’s Bench.
R.S., c.120, s.3; 1978, c.32, s.3; 1979, c.36, s.4; 1983, c.4, s.11; 2023, c.17, s.129
Residence of judge
4(1)At least one judge of the Family Division or the Trial Division of the Court of King’s Bench shall reside in each of the following municipalities or within an area of fifty kilometres from the municipality:
(a) The City of Saint John;
(b) The City of Fredericton;
(c) Moncton;
(d) Edmundston;
(e) City of Bathurst;
(f) City of Campbellton;
(g) Miramichi;
(h) Woodstock.
4(1.1)Repealed: 2001, c.29, s.3
4(2)The judges of the Court of Appeal, other than supernumerary judges, shall reside in the City of Fredericton or within an area of fifty kilometres from that City.
4(3)Repealed: 2024, c.18, s.2
R.S., c.120, s.4; 1953, c.25, s.14; 1956, c.42, s.1; 1978, c.32, s.4; 1979, c.36, s.1; 1981, c.36, s.3; 1982, c.34, s.2; 1983, c.43, s.4; 1985, c.32, s.2; 1991, c.37, s.1; 2001, c.29, s.3; 2023, c.17, s.129; 2024, c.18, s.2
Court seal
5The Lieutenant-Governor in Council may determine and declare the seal to be used by the Court of Appeal and the seal to be used by the Court of King’s Bench, by which their respective proceedings shall be certified or authenticated.
R.S., c.120, s.5; 1978, c.32, s.5; 1979, c.36, s.5; 1981, c.36, s.4; 2023, c.17, s.129
Precedence of judges, commissioners of oaths
6(1)The Chief Justice of New Brunswick has rank and precedence over all other judges of the courts of New Brunswick.
6(2)The Chief Justice of the Court of King’s Bench has rank and precedence after the Chief Justice of New Brunswick, the judges of the Court of Appeal have rank and precedence after the Chief Justice of the Court of King’s Bench according to their seniority of appointment as judges of the Court of Appeal and the judges of the Court of King’s Bench have rank and precedence after the judges of the Court of Appeal according to their seniority of appointment as judges of the Court of King’s Bench.
6(2.1)Repealed: 2024, c.18, s.3
6(3)The judges of the Court of King’s Bench and the Court of Appeal are ex officio commissioners for taking affidavits.
R.S., c.120, s.6; 1966, c.70, s.3; 1978, c.32, s.6; 1979, c.36, s.6; 2023, c.17, s.129; 2024, c.18, s.3
Action or proceeding before single judge
7(1)Repealed: 1978, c.32, s.7
7(2)Every action and proceeding in the Court and all business arising out of the same shall so far as is practicable and convenient be heard, determined and disposed of before a single judge, and all proceedings in an action subsequent to the hearing or trial and down to and including the final judgment or order, always excepting any proceedings on appeal or by motion for a new trial or the like, shall, so far as is practicable and convenient, be had and taken before the judge before whom the trial or hearing of the cause took place.
7(3)Any judge may, subject to the Rules of Court, exercise in court or chambers all or any part of the jurisdiction by this Act vested in the Court, in all such causes and matters and in all such proceedings in any causes and matters as before the commencement of this Act might have been heard in court or in chambers by a single judge or as may be directed or authorized to be so heard by the Rules of Court, and in all such cases any judge sitting in court shall be deemed to constitute a Court.
R.S., c.120, s.7; 1966, c.70, s.4; 1983, c.43, s.2
Application as persona designata
7.1Where an application is made to a judge of the Court of King’s Bench as persona designata and the statute under which the judge acts does not provide otherwise, the judge has the same jurisdiction as to costs as in causes and matters in court under the judge’s ordinary jurisdiction.
1981, c.36, s.5; 2023, c.17, s.129; 2024, c.18, s.4
Time for delivering judgments
7.2(1)Subject to any other Act or the Rules of Court, a judge of the Court of King’s Bench shall deliver a judgment in any cause or matter within six months after hearing it.
7.2(2)At the request of a judge, the Chief Justice of the Court of King’s Bench may, in the Chief Justice’s discretion, after hearing a satisfactory explanation of the circumstances, extend the time in which a judgment may be delivered.
7.2(3)Where the Chief Justice extends the time under subsection (2), the Chief Justice may relieve the judge of the judge’s other duties until the judgment is delivered or take such other measures as the Chief Justice thinks appropriate.
2001, c.29, s.4; 2023, c.17, s.129; 2024, c.18, s.5
Meetings and conferences
2024, c.18, s.6
7.3(1)For the purpose of section 41 of the Judges Act (Canada), a judge of the Court of Appeal is authorized to attend, with the approval of the Chief Justice of New Brunswick, a meeting, conference or seminar that is held for a purpose relating to the administration of justice.
7.3(2)For the purpose of section 41 of the Judges Act (Canada), a judge of the Court of King’s Bench is authorized to attend, with the approval of the Chief Justice of the Court of King’s Bench, a meeting, conference or seminar that is held for a purpose relating to the administration of justice.
2024, c.18, s.6
COURT OF APPEAL
Court of Appeal
8(1)The Court of Appeal shall always be open.
8(2)The Court of Appeal shall have and exercise appellate jurisdiction, with such original jurisdiction as may be necessary or incidental to the determining of an appeal; and shall have all the jurisdiction and powers possessed by the Court of Appeal immediately before September 4, 1979, with appellate jurisdiction in civil and criminal causes and matters, and with jurisdiction and power to hear and determine motions and appeals respecting any judgment, order or decision of any judge of the Courts.
8(3)Subject to subsection (3.1), an appeal to the Court of Appeal may be taken by any party from any judgment, order or decision
(a) made in the Court of King’s Bench or by a judge thereof,
(b) made by a judge of the Court of King’s Bench who is persona designata by the provisions of an Act that does not expressly deal with the matter of an appeal from that judgment, order or decision, or
(c) that is stated in any other Act as being subject to an appeal to the Court of Appeal
or from any other judgment, order or decision that might heretofore have been appealed to the Court of Appeal, and unless inconsistent with the express provisions of another Act or the Rules of Court, every appeal to the Court of Appeal shall as nearly as possible follow the procedural rules for an appeal from the Court of King’s Bench to the Court of Appeal, and the Court of Appeal in every appeal shall have the powers, including the power to extend the time for appeal, that it has in the case of an appeal from the Court of King’s Bench.
8(3.1)Where a party seeks to appeal from
(a) an interlocutory order or decision,
(b) an order or decision as to costs only,
(c) an order made with the consent of the parties,
leave to appeal must be obtained by motion to a judge of the Court of Appeal.
8(4)The Court of Appeal shall sit in the City of Fredericton, and may sit in other locations, at such places and times as the Court requires, all as determined by the Chief Justice subject to the Rules of Court.
8(5)Every appeal, motion or application to the Court of Appeal shall, unless otherwise provided in this Act or the Rules of Court, be heard before not fewer than three judges sitting together, but the death, withdrawal, resignation, removal or inability to act of a judge after the commencement of a hearing shall not affect the jurisdiction of the Court if the appeal, motion or application is finally disposed of by not fewer than two judges, in which case their determination shall have the same force and effect as if made by the whole Court.
8(6)It is not necessary for all the judges who have heard the argument in any case to be present in order to constitute the Court for delivering judgment in that case; and where any judge who has heard the argument is not present at the time when judgment is delivered, the judge’s judgment may be announced or read by one of the other judges, and shall have the same effect as if the judge were present.
8(6.1)Notwithstanding subsection (5), where the argument in any case has been heard before a judge and the judge is appointed to any other court or for any other reason ceases to hold office, the judge may at any time within six months of ceasing to hold office deliver judgment or make an order in the case, and, in a criminal proceeding, exercise any power of a judge of the Court of Appeal in such proceeding.
8(6.2)A judgment or order of the Court of Appeal and any order or decision of a judge of the Court in chambers may be delivered by filing it with the Registrar.
8(7)No judge shall sit on the hearing of an appeal from any judgment or order made by the judge, or on the hearing of a motion for a new trial on any cause or matter tried before the judge, with or without a jury.
8(8)Where any judge of the Court of Appeal is unable to sit or take part in consequence of the provisions of subsection (7), or from illness or any other reason, or in case of a vacancy in the Court, the Chief Justice, following consultation with the Chief Justice of the Court of King’s Bench, may summon any judge of the Court of King’s Bench to sit and act in the place of such other judge, or in the place of any judge whose office has become vacant, and it is the duty of any judge so summoned to attend and, while so sitting and acting, that judge has all the jurisdiction, power and authority of a judge of the Court of Appeal.
8(9)All writs, precepts, rules, affidavits, notices and other papers and documents issued out of, or used in the Court of Appeal may be entitled, “In The Court of Appeal of New Brunswick”.
R.S., c.120, s.8; 1958, c.43, s.3; 1966, c.70, s.5; 1973, c.53, s.3; 1976, c.35, s.1; 1978, c.32, s.8; 1979, c.36, s.1, 7; 1980, c.28, s.1; 1981, c.36, s.6, 8; 1983, c.43, s.2; 2023, c.17, s.129; 2024, c.18, s.7
TRIAL DIVISION
Jurisdiction of Trial Division
9(1)Notwithstanding anything in the provisions of this or any other Act or the Rules of Court, the Trial Division shall have and exercise general and original jurisdiction in all causes and matters including jurisdiction in the following matters, namely:
(a) all causes and matters, civil and criminal, that were within the exclusive cognizance of the Supreme Court in the exercise of its original common law jurisdiction, before the commencement of the Judicature Act, 1909;
(b) all causes and matters that prior to July 1, 1966, were assigned to or cognizable by the Chancery Division;
(c) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the County Court of New Brunswick; and
(d) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the Queen’s Bench Division of the Supreme Court.
9(2)Every notice of action or other document by which any civil cause or matter is commenced in the Trial Division shall be entitled by the party issuing or taking out the same with the words “In The Court of King’s Bench of New Brunswick, Trial Division”.
R.S., c.120, s.10; 1966, c.70, s.7; 1978, c.32, s.9; 1979, c.36, s.1; 1983, c.43, s.2; 1986, c.4, s.28; 1987, c.6, s.48; 2023, c.17, s.129
Sittings of Trial Division
10(1)The Court of King’s Bench shall always be open.
10(2)The Trial Division shall sit in each judicial district at such places and times as the business of the Court requires as determined by the Chief Justice subject to the Rules of Court and shall be presided over by a judge appointed to the Court of King’s Bench.
10(3)Notwithstanding subsection (2), the Court of King’s Bench shall not hold sittings in accordance with a fixed schedule but shall sit, subject to the Rules of Court, in the judicial district in which the cause or matter is commenced.
10(4)Repealed: 1978, c.32, s.9
R.S., c.120, s.13; 1967, c.49, s.1; 1973, c.53, s.4; 1978, c.32, s.9; 1983, c.43, s.2; 2023, c.17, s.129
FAMILY DIVISION
Judges, jurisdiction
11(1)In sections 11 to 11.6
“judicial district” means the judicial district in which the Family Division may exercise its jurisdiction;(circonscription judiciaire)
“proceeding” includes any action, cause, matter petition or application.(procédure)
11(1.1)In Schedule A
“family” includes 2 persons cohabiting in a conjugal relationship that is a permanent relationship, whether or not married, or the survivor of either, and includes the children of both or either, natural or adopted or to whom either stands in loco parentis, and any person lawfully related to any of the aforementioned persons.
11(2)The Chief Justice of the Court of King’s Bench may from time to time direct that any judge of the Trial Division hear and determine proceedings brought in the Family Division and for such purposes each judge of the Trial Division is a judge of the Family Division.
11(3)The Family Division has the jurisdiction vested in the Trial Division.
11(4)Subject to subsection (5), the Family Division is constituted to hear and determine proceedings with respect to matters set out in Schedule A, and for such purposes the Family Division may also exercise the jurisdiction vested in the Provincial Court of New Brunswick and The Probate Court of New Brunswick, and in a judge of such courts, and, without limiting the scope of the above, may exercise the jurisdiction of a court or a judge under any provision set out in Schedule B.
11(5)The Family Division may exercise its jurisdiction in respect of proceedings, other than by way of appeal, taken within a judicial district.
11(6)For the purposes of exercising jurisdiction relating to charges or other proceedings arising under
(a) Repealed: 1984, c.38, s.4
(a.1) Repealed: 1991, c.17, s.1
(b) the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, in respect of which a judge of the Provincial Court of New Brunswick has jurisdiction, a judge of the Family Division has the power of two or more justices of the peace sitting together and is authorized to act as a judge of the Provincial Court of New Brunswick;
(c) Repealed: 1991, c.17, s.1
(d) Repealed: 1991, c.17, s.1
11(7)All proceedings commenced in the Family Division shall be styled “In The Court of King’s Bench of New Brunswick, Family Division”.
11(8)In exercising its jurisdiction in respect of any proceeding the Family Division has, in addition to the powers and duties of a court or judge that would exercise jurisdiction but for this section, all the powers and duties of the Court of King’s Bench and a judge thereof.
11(9)The Family Division has and may exercise jurisdiction as parens patriae.
R.S., c.120, s.14; 1954, c.49, s.2; 1963 (2nd Sess.), c.24, s.2; 1964, c.38, s.1; 1966, c.70, s.10; 1967, c.49, s.2; 1973, c.53, s.5; 1978, c.32, s.9; 1980, c.28, s.2; 1981, c.36, s.7; 1984, c.38, s.4; 1985, c.53, s.1; 1987, c.6, s.48; 1990, c.22, s.27; 1991, c.17, s.1; 2008, c.43, s.8; 2008, c.45, s.9; 2023, c.17, s.129
Judicial districts
11.1(1)The Lieutenant-Governor in Council may designate judicial districts in which the Family Division may exercise its jurisdiction.
11.1(2)The Family Division shall hold sittings in premises located within the judicial districts.
1978, c.32, s.9
Proceedings
11.2(1)A civil proceeding within the jurisdiction of the Family Division may be commenced in the Family Division where any party to the proceeding resides in the judicial district in which the proceeding is commenced, or where any child with respect to whom the proceeding is taken or a decision or order is sought in the proceeding is within the judicial district.
11.2(2)With the consent of a judge of the Family Division and the consent of all parties to a civil proceeding, that proceeding may be commenced in the Family Division if it is within its jurisdiction, notwithstanding that subsection (1) does not apply.
11.2(2.1)A criminal proceeding in respect of which the Family Division has jurisdiction or a proceeding respecting an offence under a provincial statute or local government by-law in respect of which the Family Division has jurisdiction may be commenced in the Family Division in any judicial district notwithstanding that the criminal offence or the offence under a provincial statute or local government by-law is alleged to have been committed in another judicial district.
11.2(3)A judge of the Family Division may, in accordance with the regulations, order that a proceeding commenced in the Family Division be transferred to the Trial Division or to another court where, in the opinion of the judge, there is a preponderance of convenience for the proceeding to be dealt with in that Division or court.
11.2(4)If a proceeding that should not have been commenced in the Family Division is so commenced, a judge of the Family Division may, in accordance with the regulations, at any stage of the proceeding, order that the proceeding be transferred to the Trial Division or to another court in which the proceeding may properly be taken, and all steps taken by any party in the proceeding and all orders made therein before the transfer are valid and effectual as if they were taken or made in the Division or court in which the proceeding ought to have been commenced.
11.2(5)A judge of the Trial Division or of another court having jurisdiction in a proceeding that could be commenced in the Family Division, may, in accordance with the regulations, order that the proceeding be transferred to the Family Division where, in the opinion of the judge, there is a preponderance of convenience for the matter to be dealt with by the Family Division.
11.2(6)A judge making an order under subsection (3) or (4) may give such directions for the transfer and order such costs as he considers appropriate.
1978, c.32, s.9; 1979, c.36, s.8; 1985, c.53, s.2; 2005, c.7, s.37; 2017, c.20, s.86
Open court or in camera
11.3(1)Subject to any other Act, whether of the Legislature of the Province or of the Parliament of Canada, that applies to proceedings in the Family Division, a judge of the Family Division may, in whole or in part, hear a proceeding in open court or in camera, and in exercising the judge’s discretion the judge shall take into consideration in every case
(a) the public interest in hearing the proceeding in open court,
(b) any potential harm or embarrassment that may be caused to any person if matters of a private nature were disclosed in open court; and
(c) any representations made by the parties.
11.3(2)Repealed: 1979, c.36, s.8
1978, c.32, s.9; 1979, c.36, s.8; 2024, c.18, s.8
Report by family counsellor, social worker
11.4(1)Upon ex parte application or on the judge’s own motion a judge of the Family Division may direct a family counsellor, social worker, probation officer or other person to make a report concerning any matter that, in the opinion of the judge, is a subject of the proceeding.
11.4(2)A person directed to make a report under subsection (1) shall file a written report with the clerk together with a copy of the report for each party to the proceeding and for the judge, and the clerk shall cause a copy of the report to be served on each party to the proceeding, and a copy to be delivered to the judge.
11.4(2.1)The parties to the proceeding shall pay for the costs of the report made under subsection (1) in equal portions unless the judge of the Family Division directs that one party pay the cost in total or that the parties pay the cost in unequal portions as specified by the judge.
11.4(3)Notwithstanding any rule of evidence to the contrary, the contents of a report filed under subsection (2) shall be evidence in the proceeding.
11.4(4)A person filing a report under subsection (2) is a competent and compellable witness.
11.4(5)Any party, including the party calling the person as a witness, may cross-examine the person referred to in subsection (4).
11.4(6)The judge may order that a report filed under subsection (2) and any cross-examination of the person making the report shall be treated as confidential and shall not form part of the public record.
1978, c.32, s.9; 1979, c.36, s.8; 1980, c.28, s.3; 1997, c.3, s.1; 2024, c.18, s.9
Commencement
Repealed: 2024, c.18, s.10
2024, c.18, s.10
11.5Repealed: 2024, c.18, s.11
1978, c.32, s.9; 2024, c.18, s.11
Appeal in accordance with subsection 8(3)
Repealed: 2024, c.18, s.12
2024, c.18, s.12
11.51Repealed: 2024, c.18, s.13
1981, c.36, s.9; 2023, c.17, s.129; 2024, c.18, s.13
Powers of Lieutenant-Governor in Council
11.6The Lieutenant-Governor in Council may prescribe that with respect to any judicial district only a designated portion of Schedules A and B is to apply.
1978, c.32, s.9
Role of Chief Justice
12(1)The Chief Justice of New Brunswick shall determine the general policy of the Court of Appeal and the Court of King’s Bench in judicial matters.
12(2)The Chief Justice of New Brunswick and the Chief Justice of the Court of King’s Bench shall coordinate and apportion the work of the judges in their respective Courts and all the judges shall comply with any orders and directions of the Chief Justices relating thereto.
12(3)An Associate Chief Justice shall carry out the duties assigned by the Chief Justice of the Court of King’s Bench.
R.S., c.120, s.15; 1966, c.70, s.11; 1978, c.32, s.10; 2001, c.29, s.5; 2023, c.17, s.129
Responsibilities of the Chief Justice
12.01(1)For the purpose of ensuring the proper functioning of the Court, the Chief Justice of the Court of King’s Bench is responsible for the administration of the judicial responsibilities of the Court of King’s Bench in relation to the judiciary.
12.01(2)In carrying out the Chief Justice’s duties under subsection (1) and any other provision of this Act, and without limiting the generality of that subsection or any other provision, the Chief Justice
(a) shall direct and supervise the assignment of judicial duties to individual judges and may alter those duties from time to time,
(b) shall determine the total annual, monthly and weekly workload of individual judges,
(c) may require a judge to act during the absence of another judge in the place of the judge who is absent,
(d) may designate the place where a judge is to hold sittings and the days on which he or she is to hold such sittings, and
(e) may designate the place where a judge is to establish and maintain an office.
12.01(3)Subject to subsections (4) and (5), the Chief Justice of the Court of King’s Bench, with the consent of the Minister of Justice, may designate the place at which a judge is to establish residence.
12.01(4)If the Chief Justice of the Court of King’s Bench designates a place at which a judge is to establish residence under subsection (3), the Chief Justice of the Court of King’s Bench shall not designate a new place of residence for the judge without first obtaining the consent of the Minister of Justice and the judge.
12.01(5)If, before the commencement of this subsection, the Chief Justice of the Court of King’s Bench designated a place at which a judge was to establish residence, the Chief Justice of the Court of King’s Bench shall not designate a new place of residence for the judge without first obtaining the consent of the Minister of Justice and the judge.
2001, c.29, s.6; 2017, c.8, s.1; 2020, c.25, s.64; 2022, c.28, s.30; 2023, c.17, s.129; 2024, c.18, s.14
Council of Court of Appeal judges
12.1A council comprised of the judges of the Court of Appeal shall, at least once in every year at a time and place fixed by the Chief Justice of New Brunswick and of which the Chief Justice shall give notice to the judges, assemble for the purpose of considering the operation of this Act and the Rules made under this Act.
1981, c.36, s.10; 2024, c.18, s.15
Council of Court of King’s Bench judges
2023, c.17, s.129
12.2A council comprised of the judges of the Court of King’s Bench shall, at least once in every year at a time and place fixed by the Chief Justice of the Court of King’s Bench and of which the Chief Justice shall give notice to the judges, assemble for the purpose of considering the operation of this Act and the Rules made under this Act.
1981, c.36, s.10; 2023, c.17, s.129; 2024, c.18, s.16
Special court of oyer and terminer
13Special courts of oyer and terminer and general gaol delivery may be held when necessary for any judicial district, with the same powers, privileges, incidents and duties in all respects as to crimes and offences as hereinbefore provided, where such court is authorized under the written authority of the Chief Justice of the Court of King’s Bench.
R.S., c.120, s.16; 1967, c.49, s.3; 1972, c.39, s.2; 1973, c.39, s.2; 1973, c.74, s.46; 1978, c.32, s.11; 2023, c.17, s.129
CHAMBERS
Repealed
14Repealed: 1978, c.32, s.12
R.S., c.120, s.17; 1978, c.32, s.12
Chambers sitting, appeal
15(1)A judge appointed to the Court of King’s Bench sitting in Chambers may, with the consent of the parties, hear and determine any action in that Court in which no jury is demanded, whether the action has or has not been entered for trial, and all officers who formerly attended at non-jury Circuits shall attend at Chambers upon any such trial, if required so to do by the judge.
15(2)A judge of the Court of Appeal, sitting in Chambers, has and may exercise the same jurisdiction in respect to matters assigned to the Court of King’s Bench as may be exercised by a judge of the Court of King’s Bench in Chambers.
15(3)Subject to subsection 8(3.1), all judgments, rules, decisions and orders given, pronounced, granted or made by a judge under subsection (1) or (2) are subject to appeal to the Court of Appeal.
R.S., c.120, s.18; 1966, c.70, s.12; 1978, c.32, s.13; 1981, c.36, s.11; 2023, c.17, s.129
Assignment of Chambers – Chief Justice of Court of King’s Bench
2023, c.17, s.129
16The Chief Justice of the Court of King’s Bench shall from time to time assign the judges of the Court of King’s Bench to hold Chambers at such times and places as the Chief Justice may appoint.
R.S., c.120, s.19; 1959, c.54, s.1; 1964, c.38, s.2; 1966, c.70, s.13; 1978, c.32, s.14; 2023, c.17, s.129
Repealed
17Repealed: 1978, c.32, s.15
1966, c.70, s.14; 1978, c.32, s.15
Repealed
18Repealed: 1978, c.32, s.15
R.S., c.120, s.20; 1966, c.70, s.15; 1978, c.32, s.15
Assignment of Chambers – Chief Justice of New Brunswick
19The Chief Justice of New Brunswick shall, from time to time, assign the judges of the Court of Appeal to hold Chambers.
R.S., c.120, s.21; 1966, c.70, s.16; 1978, c.32, s.16
UNFINISHED CASES
Unfinished cases
20(1)Where any cause or matter, or any motion, application or proceeding incidental to such cause or matter, has been partly or fully heard before any judge in the Court of King’s Bench and the judge dies or retires or for any other reason becomes unable to finish the hearing thereof or deliver judgment therein, the Chief Justice on the application of one of the parties, on notice of motion or with the consent of all the parties, may assign another judge to rehear the same.
20(2)Where any cause or matter, or any motion, application or proceeding incidental to such cause or matter, has been fully heard before any judge in the Court of King’s Bench and the judge dies or retires or for any other reason becomes unable to deliver judgment therein, the Chief Justice on the application of one of the parties, with the consent of all the parties, may assign another judge to decide the same, after re-argument, on the evidence already taken.
20(3)Notwithstanding subsection (1), where any criminal proceeding or any cause or matter, or any motion, application or proceeding incidental to such cause or matter, has been partly heard before any judge of the Court of King’s Bench and the judge is appointed to any other court or for any other reason ceases to hold office, the judge may, at any time within six months of ceasing to hold office, exercise any power of a judge of the Court of King’s Bench in a criminal proceeding, or complete the hearing and deliver judgment or make an order.
20(4)Notwithstanding subsections (1) and (2), where any criminal proceeding or any cause or matter, or any motion, application or proceeding incidental to such cause or matter, has been fully heard before any judge of the Court of King’s Bench and the judge is appointed to any other Court or for any other reason ceases to hold office, the judge may, at any time within six months of ceasing to hold office, exercise any power of a judge of the Court of King’s Bench in a criminal proceeding, or deliver judgment or make an order.
R.S., c.120, s.22; 1959, c.54, s.2; 1960, c.43, s.2; 1978, c.32, s.17; 1980, c.28, s.4; 2023, c.17, s.129; 2024, c.18, s.17
CERTAIN JURISDICTION
Exercise of jurisdiction of court
21The jurisdiction of the Court shall be exercised, so far as regards procedure and practice, in the manner provided by this Act and the Rules, or by rules and orders of the Court made pursuant to this Act, and where no special provision is contained in this Act or in the Rules, or in the rules or orders of the Court with reference thereto, it shall be exercised as nearly as may be in the same manner as it might have been exercised prior to the commencement of this Act.
R.S., c.120, s.23; 1983, c.43, s.5
Constitutionality of statute by court
22(1)The Court has jurisdiction to entertain an action at the instance of either the Attorney General for Canada, or the Attorney General for the Province for a declaration as to the validity of any statute or any provision in any statute of the Legislature, though no further relief is prayed or sought.
22(2)A judgment in the action is appealable as other judgments of the Court.
22(3)In any case in which
(a) a question arises as to whether
(i) a statute or a provision of any statute of the Legislature is constitutionally valid or operative, or
(ii) a statute or a provision of any statute of the Parliament of Canada is constitutionally valid, or
(b) a question arises as to the interpretation of the Constitution Acts or as to whether in relation thereto any regulation or by-law made pursuant to a statute of the Legislature or the Parliament of Canada is constitutionally valid or operative,
the Attorney General for Canada and the Attorney General for the Province shall be given notice thereof and either may, if the Attorney General thinks fit, intervene as a party, produce evidence and argue matters of law as well before the trial judge as before the Court of Appeal, but in no case shall costs be awarded either for or against the Crown, nor shall it be necessary for the Crown to plead any matters other than its position with reference to the statutory provision involved.
R.S., c.120, s.24; 1980, c.28, s.5; 1982, c.3, s.39; 1983, c.43, s.6; 2024, c.18, s.18
Reference to Court of Appeal by Cabinet
23(1)Important questions of law or fact touching
(a) the interpretation of the Constitution Acts,
(b) the constitutionality or interpretation of any Canadian or Provincial legislation,
(c) the powers of the Legislature of the Province, or the Government thereof, whether or not the particular power in question has been or is proposed to be exercised, or
(d) any other matter, whether or not in the opinion of the Court ejusdem generis with the foregoing enumeration, with reference to which the Lieutenant-Governor in Council sees fit to submit any such question,
may be referred by the Lieutenant-Governor in Council to the Court of Appeal for hearing and consideration, and any question touching any of the matters aforesaid, so referred by the Lieutenant-Governor in Council, shall be conclusively deemed to be an important question.
23(2)When any such reference is made to the Court it is the duty of the Court to hear and consider it and to answer each question so referred; and the Court shall certify to the Lieutenant-Governor in Council, for the Lieutenant-Governor in Council’s information, its opinion upon each question, with the reasons for each answer; and such opinion shall be pronounced in like manner as in the case of a judgment upon an appeal to the said Court; and any judge who differs from the opinion of the majority shall in like manner certify the judge’s opinion and reasons.
23(3)In any reference in which
(a) a question arises as to whether
(i) a statute or a provision of any statute of the Legislature is constitutionally valid or operative, or
(ii) a statute or a provision of any statute of the Parliament of Canada is constitutionally valid,
(b) a question arises that relates to the interpretation of the Constitution Acts or as to whether in relation thereto any regulation or by-law made pursuant to a statute of the Legislature or the Parliament of Canada is constitutionally valid or operative, or
(c) the interpretation of any statute of the Parliament of Canada or regulation made thereunder is in question,
the Attorney General for Canada shall be notified of the hearing in order that the Attorney General may be heard if the Attorney General thinks fit.
23(4)The Court has power to direct that any person interested, or, where there is a class of persons interested, one or more persons as representatives of such class, shall be notified of the hearing upon any reference under this section and such persons are entitled to be heard thereon.
23(5)The opinion of the Court upon any reference, although advisory only, shall, for all purposes of appeal, be treated as a final judgment of the Court between parties.
R.S., c.120, s.24A; 1978, c.32, s.18; 1980, c.28, s.6; 1982, c.3, s.39; 2024, c.18, s.19
Restrictions on intervention
23.1No statutory board, tribunal or commission or Crown corporation or agency shall, without the approval of the Attorney General for the Province, intervene as a party in any case before any court in Canada on
(a) a question as to whether
(i) a statute or a provision of any statute of the Legislature or the legislature of any other province is constitutionally valid or operative,
(ii) a statute or a provision of any statute of the Parliament of Canada is constitutionally valid, or
(iii) any regulation or by-law made pursuant to a statute of the Legislature or the legislature of any other province or the Parliament of Canada is constitutionally valid or operative, or
(b) a question that relates to the interpretation of the Constitution Acts.
1987, c.29, s.1
Power of court to set aside conveyance of land
24The Court may, on such terms as appear just, set aside or vary at the instance of an interested party any conveyance or transfer of property, the consideration of which, in whole or in part, whether expressed in the instrument of conveyance or in a collateral agreement, is the maintenance and support of any person; but nothing done hereunder affects the title of a bona fide purchaser for value.
R.S., c.120, s.25; 2020, c.24, s.10
Ante-nuptial or post nuptial agreements
25The Court, after final decree of nullity of marriage or dissolution of marriage, may at any time on application inquire into the existence of any ante-nuptial or post-nuptial settlements or agreements made on or between the parties whose marriage is the subject of decree, and may make such orders as the Court deems fit with reference to the application of the whole or a portion of the property settled, or of the income or of the benefits thereby conferred or given, either for the benefit of the children of the marriage or of their respective parents.
R.S., c.120, s.26
RULES OF LAW
Legal and equitable jurisdiction of court
26(1)In every civil cause or matter commenced in the Court, law and equity shall be administered therein according to the rules in this section.
26(2)If a plaintiff or petitioner claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against a deed, instrument or contract, or against any right, title or claim whatsoever, asserted by a defendant or respondent in the cause or matter, or to any relief founded on a legal right that before the commencement of The Judicature Act, 1909 could only have been given by a court of equity, the Court and every judge thereof shall give to the plaintiff or petitioner such and the same relief as ought to have been given by the Supreme Court in Equity in a suit or proceeding for the same or the like purposes properly instituted before the commencement of the said Judicature Act.
26(3)Subject to appeal as in other cases, the Court has power to relieve against all penalties and forfeitures, and in granting the relief to impose such terms as to costs, expenses, damages, compensation and all other matters, as the Court thinks fit.
26(4)If a defendant claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against a deed, instrument or contract, or against any right, title or claim asserted by a plaintiff or petitioner in such cause or matter, or alleges any ground of equitable defence to a claim of the plaintiff or petitioner in the cause or matter, the Court and every judge thereof shall give to every equitable estate, right or ground of relief so claimed, and to every equitable defence so alleged, such and the same effect by way of defence against the claim of the plaintiff or petitioner as the Supreme Court in Equity ought to have given if the same or the like matters had been relied on by way of defence in any suit or proceeding instituted in the Court for the same or the like purposes before the commencement of The Judicature Act, 1909.
26(5)The Court and every judge thereof may grant to a defendant, in respect of any equitable estate or right, or other matter of equity, and also in respect of any legal estate, right or title claimed or asserted by the defendant, all such relief against any plaintiff or petitioner as the defendant has properly claimed by the defendant’s pleading and as the Court, or any judge thereof, might have granted in any suit instituted for that purpose by the same defendant against the same plaintiff or petitioner; and also all such relief relating to or connected with the original subject of the cause or matter, and in like manner claimed against any other person, whether already a party to the same cause or matter, or not, who has been duly served with notice in writing of such claim pursuant to any Rule of Court, or any order of the Court that might properly have been granted against such person if the person had been a defendant to a cause duly instituted by the same defendant for the like purpose; and every person served with any such notice shall thenceforth be deemed a party to the cause or matter, with the same rights in respect of their defence against such claim as if the person had been duly sued in the ordinary way by the defendant.
26(6)The Court and every judge thereof shall recognize and take notice of all equitable estates, titles and rights, and all equitable duties and liabilities appearing incidentally in the course of any cause or matter, in the same manner in which the Supreme Court in Equity would have recognized and taken notice of the same in any suit or proceeding duly instituted therein before the commencement of The Judicature Act, 1909.
26(7)No cause or proceeding, at any time pending in the Court, shall be restrained by injunction or by an order on judicial review, but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained either unconditionally or on any terms or conditions, if The Judicature Act, 1909 had not been enacted, may be relied on by way of defence thereto; but nothing herein disables the Court from directing a stay of proceedings in any cause or matter pending before it, if it sees fit; and any person, whether a party or not to any such cause or matter, who would have been entitled, if The Judicature Act, 1909 had not been enacted, to apply to any Court to restrain the prosecution thereof, or who may be entitled to enforce, by any means, any judgment, decree, rule or order, contrary to which all or any part of the proceedings in the cause or matter have been taken, is at liberty to apply to the Court by motion in a summary way, for a stay of proceedings in such cause or matter either generally or so far as may be necessary for the purposes of justice; and the Court shall thereupon make such order as is just.
26(8)Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner aforesaid, and to the other express provisions of this Act, the Court and every judge thereof shall recognize and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations and liabilities existing by the common law or created by any statute, in the same manner as the same would have been recognized and given effect to by the Supreme Court, either at law or in equity, if The Judicature Act, 1909 had not been enacted.
26(9)The Court in the exercise of the jurisdiction vested therein by this Act in every cause or matter pending before the Court has power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to the Court seems just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter, so that as far as possible all matters so in controversy between the said parties respectively, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided.
R.S., c.120, s.28; 1986, c.4, s.28; 1987, c.6, s.48; 2013, c.32, s.17; 2024, c.18, s.20
Bankruptcy or winding-up, sale of real estate
27(1)In the administration by the Court of the assets of any person who has died since the commencement of The Judicature Act, 1909, or who may die after the commencement of this Act, and whose estate may prove to be insufficient for the payment in full of the person’s debts and liabilities, and in the winding-up under the Winding-Up Act of any company whose assets may prove to be insufficient for the payment of its debts and liabilities and the costs of winding-up, the same rule shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable and as to the valuation of annuities and future and contingent liabilities respectively as may be in force for the time being under the Bankruptcy Act of Canada with respect to the estates of persons adjudged bankrupt; and all persons who in any such case would be entitled to prove for and receive dividends out of the estate of any such deceased person, or out of the assets of any such company, may come in under the judgment or order for the administration of such estate, or under the winding-up of such company, and make such claims against the same as they may respectively be entitled to.
27(2)Where the personal estate is insufficient for the payment of the debts in the administration of the assets of any deceased person, the Court or a judge may direct a sale of the real estate or that it be leased or mortgaged for that purpose and may give such directions in regard thereto as the Court or a judge may think expedient.
R.S., c.120, s.29; 1986, c.4, s.28; 2024, c.18, s.21
Commission of equitable waste by tenant
28An estate for life without impeachment of waste shall not confer or be deemed to have conferred upon the tenant for life any legal right to commit waste of the description known as equitable waste unless an intention to confer that right expressly appears by the instrument creating such estate.
R.S., c.120, s.30
Merger of estate by operation of law
29There is no merger by operation of law only of an estate the beneficial interest in which would not be deemed to be merged or extinguished in equity.
R.S., c.120, s.31
Action for possession by mortgagor
30A mortgagor entitled for the time being to the possession or receipt of rents and profits of any land, as to which no notice of intention to take possession or to enter into the receipt of the rents and profits thereof has been given by the mortgagee, may sue for such possession, or sue or distrain for the recovery of such rents or profits, or to prevent or to recover damages in respect of any trespass or other wrong relative thereto, in the mortgagor’s own name only unless the cause of action arises upon a lease or other contract made by the mortgagor jointly with any other person, and in that case the mortgagor may sue or distrain jointly with the other person.
R.S., c.120, s.32; 2024, c.18, s.22
Assignment of debts and choses in action
31An absolute assignment by writing under the hand of the assignor, not purporting to be by way of charge only, of a debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim the debt or chose in action, shall be and be deemed to be effectual in law, subject to all equities that would have been entitled to priority over the right of the assignee if this Act had not passed, to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor; but if the debtor, trustee, or other person liable in respect of such debt or chose in action, had notice that such assignment is disputed by the assignor or any one claiming under the assignor, or of any other opposing or conflicting claim to such debt or chose in action, the person is entitled, if the person thinks fit, to call upon the several persons making claim thereto to interplead concerning the same or the person may, if the person thinks fit, pay the same into the Court upon obtaining a judge’s order therefor to abide the determination of the Court in respect thereof.
R.S., c.120, s.33; 2024, c.18, s.23
Interpretation of stipulations in contract
32Stipulations in contracts as to time or otherwise, which would not before the commencement of The Judicature Act, 1909 have been deemed in a Court of Equity to be or to have become of the essence of such contracts, shall receive in the Court the same construction and effect as they would heretofore have received in Equity.
R.S., c.120, s.34
Judicial review, injunctions and receivers
33An order on judicial review or an injunction may be granted or a receiver appointed by an interlocutory order of the Court in all cases in which it appears to the Court to be just or convenient that the order should be made; and any such order may be made either unconditionally or upon such terms and conditions as the Court thinks just; and if an injunction is asked, either before or at or after the hearing of any cause or matter, to prevent a threatened or apprehended waste or trespass, such injunction may be granted, if the Court thinks fit, whether the person against whom the injunction is sought is, or is not, in possession under any claim of title or otherwise, or, if out of possession, does or does not claim under any colour of title a right to do the act sought to be restrained, and whether the estates claimed by both or either of the parties are legal or equitable.
R.S., c.120, s.35; 1981, c.6, s.1; 1986, c.4, s.28; 2024, c.18, s.24
Ex parte injunctions
34(1)In this section
“ex parte injunction” means an ex parte interim injunction to restrain any person from doing any act in connection with an industrial dispute, and(injonction ex parte)
“industrial dispute” means a dispute as defined in the Industrial Relations Act.(différend industriel)
34(2)No ex parte injunction shall be granted unless the Court or a judge is satisfied that
(a) a breach of the peace, injury to the person or damage to property has occurred and is likely to be continued, and
(b) reasonable notification, by telephone or otherwise, of the application has been given by the applicant at the earliest possible time to any person or labour organization sought to be restrained, or that notification could not reasonably have been given.
34(2.1)For the purpose of paragraph (2)(b),
(a) where the person sought to be restrained is a labour organization or a member of a labour organization notification is effectively given if given to an agent or officer of that organization, and
(b) where the person sought to be restrained is not a member of a labour organization notification is effectively given if posted in a conspicuous place in the immediate area of the act sought to be restrained.
34(2.2)Any person receiving notification of an application for an ex parte injunction may attend and make representations in respect of the application, but notwithstanding such notification or attendance an injunction issued pursuant to the application shall, for purposes of subsections (3), (4) and (5), be deemed to have been made ex parte.
34(3)An ex parte injunction
(a) shall not be for a longer period than four days,
(b) shall expire at the end of the period for which it was granted, and
(c) shall prohibit only acts that have been expressly complained of on the application and the order shall not be in terms broader than the circumstances require.
34(4)Where an ex parte injunction has been granted that is subject to this section, the judge who granted that injunction shall not grant another ex parte injunction based only on the evidence that was used in support of the application for the ex parte injunction that was granted.
34(5)Every affidavit used in support of an application for an ex parte injunction under this section shall be confined to facts within the personal knowledge of the deponent, and the Court may require viva voce evidence in addition to affidavits.
1956, c.42, s.2; 1971, c.42, s.2; 1974, c.23 (Supp.), s.1
Legal entities, no representative action in tort
35(1)A trade union, a council of trade unions, an employer and an employers’ organization, as defined in the Industrial Relations Act, are legal entities capable of suing and being sued.
35(2)No representative action in tort shall be brought against members of a trade union as defined in the Industrial Relations Act.
1971, c.42, s.3
Abolition of prerogative writs, order on judicial review
36(1)No prerogative writ of certiorari, mandamus, prohibition or quo warranto, and no order of certiorari, mandamus or prohibition, shall be issued in any proceeding commenced after the coming into force of this section.
36(2)Any remedy that could have been given by way of
(a) a prerogative writ of certiorari, mandamus, prohibition or quo warranto, or
(b) an order of certiorari, mandamus or prohibition,
may be given by way of an order on judicial review as provided by the Rules of Court.
36(3)In any enactment a reference to a writ of certiorari, mandamus, prohibition or quo warranto, or to an order of certiorari, mandamus or prohibition shall be construed as a reference to an order on judicial review authorized by the Rules of Court.
36(4)No action or proceeding shall be commenced or prosecuted against any person in respect of anything done in obedience to an order on judicial review.
1964, c.38, s.3; 1971, c.42, s.3; 1981, c.36, s.12; 1983, c.43, s.7
Court order respecting conveyance of land
37Where any person neglects or refuses to comply with a judgment or order directing the person to execute any conveyance, contract or other document or to indorse any negotiable instrument, the Court may, on such terms and conditions, if any, as may be just, order that such conveyance, contract or other document shall be executed or that such negotiable instrument shall be indorsed by such person as the Court may nominate for that purpose; and in such case the conveyance, contract, document or instrument so executed or indorsed shall operate and be for all purposes available as if it had been executed or indorsed by the person originally directed to execute or indorse it.
R.S., c.120, s.36; 2024, c.18, s.25
Enforcement of orders made under the Canadian Free Trade Agreement
2019, c.8, s.1
37.1(1)In this section, “Canadian Free Trade Agreement” means the Canadian Free Trade Agreement, signed in 2017 by the Government of Canada and the governments of the provinces and territories of Canada, as amended from time to time.
37.1(2)A certified copy of an order made by a Presiding Body under Chapter 10 of the Canadian Free Trade Agreement that requires a person other than the Crown to pay tariff costs may be filed with The Court of King’s Bench, and, when filed, has the same force and effect as an order for the payment of money made by that Court against the person.
2019, c.8, s.1; 2023, c.17, s.129
Custody and education of minors
38In questions relating to the custody and education of minors, the rules of equity shall prevail.
R.S., c.120, s.37; 1986, c.4, s.28
Primacy of rules or equity over common law
39Generally, in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.
R.S., c.120, s.38
Application of Act
40The several rules of law enacted and declared by this Act shall be in force and receive effect in all Courts in New Brunswick, so far as the matters to which such rules relate are cognizable by such Courts.
R.S., c.120, s.39
ABOLITION OF TERMS
Abolition of Terms
41(1)The legal year shall not be divided into Terms so far as relates to the administration of justice; and there shall not be Terms applicable to any Sittings or business of the Court; but in all cases in which, under the law existing at the time of the passing of The Judicature Act, 1909, the Terms into which the legal year was divided are used as a measure for determining the time at or within which any act is required to be done, the same may continue to be referred to for the same or the like purpose, unless and until provision is otherwise made by any lawful authority.
41(2)Subject to the Rules of Court, the Court and the judges thereof have power to sit and act at any time and place for the transaction of any part of the business of the Court, or of such judges, or for the discharge of any duty that by any statute, or otherwise, is required to be discharged.
41(3)Repealed: 1978, c.32, s.19
R.S., c.120, s.40; 1978, c.32, s.19; 1983, c.43, s.2
Repealed
42Repealed: 1978, c.32, s.20
R.S., c.120, s.41; 1959, c.54, s.3; N.B. Reg. 65-24; 1966, c.70, s.17; 1978, c.32, s.20
VERDICT
General or special verdict
43(1)Upon a trial by jury, where the Court or the presiding judge otherwise directs, it is not lawful for the jury to give a general verdict; but it is the duty of the jury to give a special verdict, if the Court or presiding judge so directs; unless the Court or the presiding judge otherwise directs, the jury may give either a general or a special verdict.
43(2)This section does not apply to actions of libel.
R.S., c.120, s.42
Answering questions of fact, malicious prosecution
44(1)Upon a trial by jury, in any case except an action for libel, the judge, instead of directing the jury to give either a general or special verdict, may direct the jury to answer any questions of fact stated to them by the judge for the purpose; and in such case, the jury shall answer the questions, and shall not give a verdict, and on the findings of the jury upon the questions that they answer, the judge shall enter a verdict, and the verdict so entered shall be as effectual as if it had been the verdict of the jury; and on the trial of any such case, counsel may require the judge to submit to the jury any pertinent or relevant question raised by any of the issues or necessary to be answered by the jury in order to have a complete determination of all matters involved in the case, and in the event of the judge refusing to put to the jury any question so required by counsel to be submitted, such refusal may be used as a ground for a new trial.
44(2)In actions for malicious prosecution, the judge shall decide all questions both of law and of fact necessary for determining whether or not there is reasonable and probable cause.
R.S., c.120, s.43
INTEREST
Order re interest
45(1)In any proceedings for the recovery of any debt or damages, the Court may order that there shall be included in the sum for which judgment is given interest on the whole or any part of the debt or damages for the whole or any part of the period between the date the debt was due or the amount subsequently awarded as damages ought reasonably to have been paid and the date of judgment.
45(2)Repealed: 2012, c.10, s.2
1973, c.53, s.6; 2012, c.10, s.2
Rate of interest
46(1)Subject to subsection (2) and unless otherwise ordered by the Court, a verdict or judgment bears interest at the rate fixed by the Rules of Court from time to time from the time of the rendering of the verdict or of the giving of the judgment, as the case may be, notwithstanding that the entry of judgment upon the verdict or upon the giving of the judgment has been suspended by any proceedings in the action whether in the Court in which the action is pending or on appeal.
46(2)Where the Court has made an order under subsection 45(1) for interest at a specified rate or rates on the whole or any part of the debt or damages for the whole or any part of the period referred to in that subsection, the whole or such part or parts of the debt or damages shall, subject to any order as to interest made on any appeal or appeals, continue to bear interest at the same rate or rates until the final determination of any appeal or appeals taken in the action and the judgment shall be deemed to include the amount of interest accrued under this section and shall bear interest in accordance with subsection (1) from the date of the final determination of any appeal or appeals.
46(3)Repealed: 2012, c.10, s.2
46(4)Repealed: 2012, c.10, s.2
R.S., c.120, s.46; 1980, c.28, s.7; 1983, c.43, s.2; 2012, c.10, s.2
MONEY IN CONTROL OF COURT
Direction of judge
47Subject to the provisions of section 48, all money subject to the control of the Court shall be paid into the hands of such person or be invested in such securities as any judge directs; and all increase thereof shall be added to the principal and distributed therewith to the person entitled to the same.
R.S., c.120, s.47
Payment to Registrar, deposit with Minister of Finance
48(1)When any money is, during the pendency of any suit or proceeding in the Court, ordered to be paid into Court or to any officer thereof, to be subject wholly or in part to the further order or judgment of the Court, the same, or so much thereof as may be subject to such further order or judgment, shall be forthwith paid to the Registrar, and all such money so received by the Registrar, whether from such other officer to whom the same may be paid in the first instance, or otherwise, shall be by the Registrar forthwith deposited with the Minister of Finance and Treasury Board, who shall give a receipt therefor to be filed by the Registrar.
48(2)The Minister of Finance and Treasury Board shall hold all money received by the Minister of Finance and Treasury Board under the provisions of this section subject to the order or decree of the Court, and no money so received by the Minister of Finance and Treasury Board shall be drawn out except by the order of a judge, countersigned by the Registrar; and no such order shall be made unless it is first certified to the judge by the Registrar that such money has been duly deposited with the Minister of Finance and Treasury Board and payment of all such money by the Minister of Finance and Treasury Board shall be by warrant in the usual manner.
48(3)The Minister of Finance and Treasury Board shall keep a separate account of the money paid in to the credit of each cause, and shall allow upon all such money as remains on deposit with the Minister of Finance and Treasury Board more than six months interest in accordance with the regulations from the time when such money has been paid to the Minister of Finance and Treasury Board under the provisions of this Act.
48(4)The Court shall, from time to time, make such Orders as may be necessary to carry out the provisions of this section.
R.S., c.120, s.48; 1966, c.70, s.18; O.C.68-516; 1973, c.53, s.7; 1983, c.43, s.8; 1986, c.4, s.28; 2007, c.7, s.1; 2019, c.29, s.75; 2024, c.18, s.26
Repealed
49Repealed: 1978, c.32, s.21
R.S., c.120, s.49; 1964, c.38, s.4; 1978, c.32, s.21
Repealed
50Repealed: 1978, c.32, s.21
N.B. Reg. 65-24; 1966, c.70, s.17; 1978, c.32, s.21
Repealed
51Repealed: 1978, c.32, s.21
1973, c.53, s.8; 1978, c.32, s.21
MASTERS
Repealed
52Repealed: 1986, c.4, s.28
R.S., c.120, s.50; 1966, c.70, s.20; 1982, c.3, s.39; 1986, c.4, s.28
Repealed
53Repealed: 1986, c.4, s.28
R.S., c.120, s.51; 1978, c.32, s.22; 1982, c.3, s.39; 1985, c.41, s.7; 1986, c.4, s.28
Repealed
54Repealed: 1986, c.4, s.28
R.S., c.120, s.52; 1986, c.4, s.28
Repealed
55Repealed: 1986, c.4, s.28
R.S., c.120, s.53; 1986, c.4, s.28
Repealed
56Repealed: 1986, c.4, s.28
R.S., c.120, s.54; 1986, c.4, s.28
CASE MANAGEMENT MASTERS
2010, c.21, s.1
Appointment
56.1(1)The Lieutenant-Governor in Council may, on the recommendation of the Minister of Justice, appoint for any judicial district of the Family Division of the Court of King’s Bench such Case Management Masters as are considered necessary.
56.1(2)A Case Management Master shall be a barrister of the Court but is not allowed to practise as a barrister or solicitor in any court during his or her term of office.
56.1(3)A person appointed under subsection (1) shall, before entering upon the duties of his or her office, take and subscribe an oath of office to truly and faithfully discharge those duties.
56.1(4)The oath of office shall be administered by a judge of the Court.
56.1(5)Subject to paragraph 56.4(7)(d), a Case Management Master shall be appointed for a term not exceeding 3 years and is eligible for reappointment.
2010, c.21, s.1; 2016, c.37, s.201; 2019, c.2, s.78; 2020, c.25, s.64; 2022, c.28, s.30; 2023, c.17, s.129
Authority
56.2(1)A Case Management Master may exercise the jurisdiction of the Court of King’s Bench in respect to the matters set out in Schedule C.
56.2(2)Every order or decision made or given by a Case Management Master pertaining to a matter referred to in subsection (1) is as valid and binding on all parties concerned as if it had been made or given by the Court of King’s Bench, but any party may appeal from it to the Family Division of the Court of King’s Bench within the judicial district for which the Case Management Master was appointed, with leave of that Division.
56.2(3)A Case Management Master shall, within the judicial district for which he or she was appointed, perform the duties and exercise the powers and authority assigned to him or her under this Act or any other Act, the regulations under this Act or any other Act and the Rules of Court.
56.2(4)In making an order, a Case Management Master may give such directions and award such costs as he or she considers appropriate.
2010, c.21, s.1; 2023, c.17, s.129
Immunity
56.3A Case Management Master has the same immunity from liability as a judge of the Court of King’s Bench.
2010, c.21, s.1; 2023, c.17, s.129
Complaints
56.4(1)Any person may make a complaint alleging misconduct by a Case Management Master, by writing to the Chief Justice of the Court of King’s Bench.
56.4(2)The Chief Justice shall review the complaint and may dismiss it without further investigation if, in his or her opinion, it is frivolous or an abuse of process, or concerns a minor matter to which an appropriate response has already been given.
56.4(3)The Chief Justice shall notify the complainant and the Case Management Master in writing of a dismissal under subsection (2), giving brief reasons for it.
56.4(4)If the complaint is not dismissed, the Chief Justice shall refer it to a committee consisting of 3 persons, being the Registrar and 2 other judges of the Court of King’s Bench chosen by the Chief Justice.
56.4(5)The committee shall investigate the complaint in the manner it considers appropriate, and the complainant and the Case Management Master shall be given an opportunity to make representations to the committee, in writing or, at the committee’s option, orally.
56.4(6)The committee shall make a report to the Chief Justice, recommending a disposition in accordance with subsection (7).
56.4(7)The Chief Justice may dismiss the complaint, with or without a finding that it is unfounded, or, if he or she concludes that the Case Management Master’s conduct presents grounds for imposing a sanction, may
(a) reprimand the Case Management Master,
(b) order the Case Management Master to apologize to the complainant,
(c) reprimand the Case Management Master and order him or her to apologize to the complainant, or
(d) remove the Case Management Master from office.
56.4(8)The Chief Justice shall notify the complainant and the Case Management Master in writing of a dismissal under subsection (7), giving brief reasons for it.
56.4(9)The Chief Justice’s decision may be appealed to the Court of Appeal
(a) by the Case Management Master, as of right, or
(b) by the complainant, with leave of the Court of Appeal.
56.4(10)The notice of appeal or the notice of motion for leave to appeal shall be filed within 30 days after the date of the Chief Justice’s decision.
56.4(11)On the filing of a notice of appeal, the imposition of any sanction is stayed until the final disposition of the appeal.
2010, c.21, s.1; 2023, c.17, s.129
EMERGENCY ADJUDICATIVE OFFICERS
2017, c.53, s.2
Appointment
2017, c.53, s.2
56.5(1)The Lieutenant-Governor in Council may, on the recommendation of the Minister of Justice, appoint those Emergency Adjudicative Officers as the Lieutenant-Governor in Council considers necessary.
56.5(2)An Emergency Adjudicative Officer shall be a barrister of the Court but is not allowed to practise as a barrister or solicitor in any court during his or her term of office.
56.5(3)A person appointed under subsection (1) shall, before entering upon the duties of his or her office, take and subscribe an oath of office or make and subscribe an affirmation of office to truly and faithfully discharge those duties.
56.5(4)The oath or affirmation of office shall be administered by a judge of the Court.
56.5(5)Subject to paragraph 56.8(7)(d), an Emergency Adjudicative Officer shall be appointed for a term not exceeding 10 years and is eligible for reappointment.
2017, c.53, s.2; 2019, c.2, s.78; 2020, c.25, s.64; 2022, c.28, s.30
Authority
2017, c.53, s.2
56.6An Emergency Adjudicative Officer may hear applications for emergency intervention orders and make decisions on those applications in accordance with the Intimate Partner Violence Intervention Act.
2017, c.53, s.2
Immunity
2017, c.53, s.2
56.7An Emergency Adjudicative Officer has the same immunity from liability as a judge of the Court of King’s Bench.
2017, c.53, s.2; 2023, c.17, s.129
Complaints
2017, c.53, s.2
56.8(1)Any person may file a written complaint with the Chief Justice of the Court of King’s Bench alleging misconduct by an Emergency Adjudicative Officer.
56.8(2)The Chief Justice shall review the complaint and may dismiss it without further investigation if, in his or her opinion, it is frivolous or an abuse of process, or concerns a minor matter to which an appropriate response has already been given.
56.8(3)If the Chief Justice dismisses a complaint under subsection (2), the Chief Justice shall notify the complainant and the Emergency Adjudicative Officer in writing of the dismissal and give brief reasons for the dismissal.
56.8(4)If the complaint is not dismissed, the Chief Justice shall refer it to a committee consisting of the Registrar and two other judges of the Court of King’s Bench chosen by the Chief Justice.
56.8(5)The committee shall investigate the complaint in the manner it considers appropriate, and the complainant and the Emergency Adjudicative Officer shall be given an opportunity to make representations to the committee, in writing or, at the committee’s option, orally.
56.8(6)The committee shall make a report to the Chief Justice, recommending a disposition in accordance with subsection (7).
56.8(7)The Chief Justice may dismiss the complaint, with or without a finding that it is unfounded, or, if he or she concludes that the Emergency Adjudicative Officer’s conduct presents grounds for imposing a sanction, may
(a) reprimand the Emergency Adjudicative Officer,
(b) order the Emergency Adjudicative Officer to apologize to the complainant,
(c) reprimand the Emergency Adjudicative Officer and order him or her to apologize to the complainant, or
(d) remove the Emergency Adjudicative Officer from office.
56.8(8)If the Chief Justice dismisses a complaint under subsection (7), the Chief Justice shall notify the complainant and the Emergency Adjudicative Officer in writing of the dismissal and give brief reasons for the dismissal.
56.8(9)The Chief Justice’s decision may be appealed to the Court of Appeal
(a) by the Emergency Adjudicative Officer, as of right, or
(b) by the complainant, with leave of the Court of Appeal.
56.8(10)The notice of appeal or the notice of motion for leave to appeal shall be filed within 30 days after the date of the Chief Justice’s decision.
56.8(11)On the filing of a notice of appeal, the imposition of any sanction is stayed until the final disposition of the appeal.
2017, c.53, s.2; 2023, c.17, s.129
CHIEF HEARING OFFICER
2017, c.53, s.2
Designation
2017, c.53, s.2
56.9(1)The Lieutenant-Governor in Council shall designate from among the Emergency Adjudicative Officers a Chief Hearing Officer who shall
(a) be under the direction of the Chief Justice;
(b) direct and supervise the assignment of duties to
(i) Case Management Masters who are appointed or reappointed on or after the commencement of this section,
(ii) Emergency Adjudicative Officers, and
(iii) adjudicators appointed under the Small Claims Act; and
(c) execute the authority, duties and powers of an Emergency Adjudicative Officer as set out in section 56.6.
56.9(2)Subject to paragraph 56.8(7)(d), an Emergency Adjudicative Officer shall be designated as Chief Hearing Officer for a term not exceeding 10 years and is eligible to be redesignated.
56.9(3)If an Emergency Adjudicative Officer is designated as Chief Hearing Officer and less than 10 years remain in his or her term as a Emergency Adjudicative Officer, he or she may be designated as Chief Hearing Officer for the balance of his or her term as an Emergency Adjudicative Officer.
56.9(4)If the designation under subsection (2) expires and the Emergency Adjudicative Officer is not redesignated as Chief Hearing Officer, the Emergency Adjudicative Officer may, subject to paragraph 56.8(7)(d), continue to act as an Emergency Adjudicative Officer for the balance of his or her term as an Emergency Adjudicative Officer.
2017, c.53, s.2
REGISTRAR AND
OTHER COURT PERSONNEL
1994, c.25, s.1
Appointment of Registrar, offices
57(1)The Lieutenant-Governor in Council may appoint a fit and proper person to be the Registrar of both the Court of Appeal and the Court of King’s Bench, who shall have an office in Fredericton, and such information as may be required pursuant to the Rules of Court respecting all actions commenced in the Court of King’s Bench shall be filed or recorded in that office.
57(2)The offices of the Registrar, clerks and administrators shall be closed on
(a) holidays as defined in the Interpretation Act,
(b) Saturdays, and
(c) any other days observed as holidays within the public service of the Province.
R.S., c.120, s.55; 1955, c.56, s.1; 1978, c.32, s.23; 1983, c.43, s.2; 1989, c.19, s.2; 2023, c.17, s.129; 2024, c.18, s.27
Requirements of Registrar
58The Registrar shall be a barrister of the Court of not less than ten years standing and shall not be allowed to practise in any Court; but where the Registrar is also Deputy Attorney General, the Registrar may practise as Deputy Attorney General in any Court on the business only of the Province.
R.S., c.120, s.56; 1981, c.6, s.2; 2012, c.39, s.80; 2024, c.18, s.28
Duties of Registrar
59The Registrar shall discharge all such duties as are similar or of a like nature to those discharged before the commencement of The Judicature Act, 1909 by the Clerk of the Pleas, the Clerk in Equity, the Clerk of the Crown and the King’s Remembrancer; the Registrar shall attend all Sessions and Sittings of the Court of Appeal, and shall keep the records and minutes thereof; the Registrar shall sign and seal all processes of the Court, draw all orders, decrees and judgments thereof, and tax all bills of costs where taxation is necessary.
R.S., c.120, s.57; 2024, c.18, s.29
Powers of Registrar
60(1)The Registrar may transact all such business and exercise all such jurisdiction as may be transacted or exercised by the Court or a judge of the Court, in respect to the following proceedings and matters:
(a) granting leave for service out of the jurisdiction of a notice of action; ordering substituted or other service or the substitution of notice for service and perfecting service of notices of action; and enlargement of time for filing notices of action;
(b) judgment in default of appearance or pleadings in all actions, and in all proceedings arising therefrom, or in connection therewith.
60(2)If any matter appears to the Registrar to be proper for the decision of the Court or a judge, the Registrar may refer the same to the Court or a judge, who may either dispose of the matter or refer the same back to the Registrar with such directions as the Court or the judge thinks fit.
60(3)Every order or decision made or given by the Registrar is as valid and binding on all parties concerned as if the same had been made or given by the Court or a judge, but any person affected by an order or decision of the Registrar may appeal therefrom to the Court or a judge having jurisdiction over the matter, which appeal shall be by notice of motion setting forth the grounds of objection and served within six days after the decision complained of and two clear days before the day fixed for hearing the same, or served within such other time as may be allowed by any judge or the Registrar.
60(4)The Registrar has power to administer oaths and perform such other duties as are assigned to the Registrar under this Act or by the Rules.
60(5)The Registrar shall supervise the clerks appointed under section 68 in the exercise of their duties under this Act.
R.S., c.120, s.58; 1973, c.53, s.9, 10; 1978, c.32, s.25; 1986, c.4, s.28; 1987, c.6, s.48; 2024, c.18, s.30
Other officers
60.1The Lieutenant-Governor in Council may appoint such other officers as the Lieutenant-Governor in Council considers necessary for the proper administration of the Courts, and such officers shall perform and exercise such duties, powers and authority prescribed by the Lieutenant-Governor in Council, the regulations or the Rules of Court.
1978, c.32, s.26; 1983, c.43, s.2; 2024, c.18, s.31
Appointment of deputy registrars
61The Lieutenant-Governor in Council may appoint deputy registrars who shall be under the direction of the Registrar.
R.S., c.120, s.59, 60; 1960-61, c.51, s.1; 1973, c.53, s.11
Persons designated by the Registrar
62(1)The Registrar shall designate in writing one or more deputy registrars to be the person or persons charged with the execution, during the Registrar’s absence from office, of the powers and duties of the Registrar under
(a) this Act, the regulations and the Rules of Court, and
(b) any other Act or regulation made thereunder.
62(2)The Registrar may designate in writing one or more
(a) deputy registrars,
(b) administrators, or
(c) clerks
to be the person or persons charged with the execution of the powers and duties of the Registrar under
(d) this Act, the regulations and the Rules of Court, and
(e) any other Act or regulation made thereunder,
when the Registrar considers such a designation to be appropriate and necessary.
62(3)A written designation under subsection (1) or (2) is effective for the period stated therein but, where no period has been stated, it shall be effective until revoked by the Registrar.
R.S., c.120, s.61; 1960-61, c.51, s.2; 1973, c.53, s.12; 1980, c.28, s.9; 1985, c.32, s.3; 2024, c.18, s.32
Persons authorized by the Registrar
62.1(1)The Registrar may authorize in writing any person employed in the office of the Registrar, in the office of any clerk or in the office of any administrator to provide certified copies of documents filed with the Court.
62.1(2)A written authorization under subsection (1) is effective for the period stated in the authorization unless revoked by the Registrar before the expiration of the period and when no period is stated, the written authorization is effective until revoked by the Registrar or the person ceases to be employed in the position that was held by the person at the time of the Registrar’s authorization.
62.1(3)Proof of the making of an authorization under subsection (1) may be made by a certificate purporting to be signed by the Registrar naming the person authorized in the authorization and the period of time for which the authorization is effective.
62.1(4)A document that purports to be a certificate of the Registrar under subsection (3) may be adduced in evidence and when so adduced is, in the absence of evidence to the contrary, proof of the statements in the certificate without proof of the appointment, signature or authority of the person purporting to have signed the certificate.
62.1(5)Where in any other Act or any regulation under any other Act the Registrar, a clerk or an administrator is authorized or required to provide certified copies of documents filed with the Court, a person authorized by the Registrar under subsection (1) may provide such certified copies.
1994, c.25, s.2
REPORTERS
Appointment, duties
63The Lieutenant-Governor in Council may appoint one or more suitable persons learned in the law to be the reporter or reporters of the opinions, decisions and judgments that may, from time to time, be given, made and pronounced by the Court of Appeal in, upon or respecting causes pending therein; and it is the duty of such reporter or reporters, by personal attendance or by any other means in their power, to obtain true and authentic reports of such opinions, decisions and judgments, and to publish them in such law reports as are designated by the Council of the Law Society of New Brunswick.
R.S., c.120, s.62; 1960, c.43, s.3; 1987, c.6, s.48; 2024, c.18, s.33
Copyright
64Section 2 of the Acts of Assembly, 6 William IV., Chapter 14, is unrepealed, which section is as follows:
“The sole liberty of printing and reprinting and publishing such reports shall be, and the same is hereby vested in and secured to the author and compiler thereof, his heirs and assigns, and if any person shall print, reprint or publish any such reports without the consent of the author and compiler or proprietor thereof, he shall be liable to an action on the case at the suit of such proprietor, in which action such proprietor shall recover double the damages he may have sustained by any such infringement of the copyright hereby secured to him.”
R.S., c.120, s.63
Additional duties
65In addition to the duties imposed by section 63 the reporter or reporters shall report such of the opinions, decisions, judgments and decrees, which may from time to time be given, pronounced and made in the Court of King’s Bench and in The Probate Court of New Brunswick, upon or respecting causes and matters pending therein, as are recommended for publication by a committee of the Law Society of New Brunswick appointed for such purpose, and the same shall be included in the law reports designated by the Council of the Society under the provisions of section 63.
R.S., c.120, s.64; 1960, c.43, s.4; 1978, c.32, s.27; 1987, c.6, s.48; 2008, c.43, s.8; 2023, c.17, s.129
Remuneration
66In addition to any profits that may arise from the publication and sale of such reports, the reporters shall together receive such remuneration as the Lieutenant-Governor in Council prescribes from the Consolidated Fund, payable in quarterly payments on the certificate of the Chief Justice of New Brunswick that such reporters have diligently performed the duties by this Act required of them, for the quarter for which payment is claimed, and the Lieutenant-Governor in Council may make a suitable division of such salary between such reporters.
R.S., c.120, s.65; 1953, c.25, s.14; 1960, c.43, s.5
USHERS AND MESSENGER
Ushers and messenger
67The Lieutenant-Governor in Council may appoint an usher and messenger of the Court of Appeal, Divorce Court and Chambers at Fredericton, and may allow such salary as the Lieutenant-Governor in Council considers just, which salary shall be in lieu of all appropriations and fees whatever formerly payable as such usher and messenger and as crier.
R.S., c.120, s.66; 2024, c.18, s.34
CLERKS AND ADMINISTRATORS OF THE
COURT OF KING’S BENCH
1983, c.43, s.9; 2023, c.17, s.129
Clerks and administrators
68(1)The Lieutenant-Governor in Council may appoint for each judicial district of the Trial Division of the Court of King’s Bench, a suitable person as clerk who shall perform and exercise within that judicial district all the duties, powers and authority of clerk prescribed by any Act, regulation or the Rules of Court.
68(2)The Lieutenant-Governor in Council may appoint for each judicial district of the Family Division of the Court of King’s Bench a suitable person as administrator, who shall perform and exercise within that judicial district all the duties, powers and authority of administrator prescribed by any Act, regulation or the Rules of Court.
68(3)Where reference is made in this Act or any regulation or the Rules of Court made hereunder, or in any other Act or any regulation made thereunder to a clerk of the Court in respect of a matter within the exclusive jurisdiction of the Family Division of the Court, then such reference shall be deemed to be a reference to the administrator of the Court and any duties, powers and authority of the clerk with regards to that matter shall be vested in the administrator.
68(4)Repealed: 2024, c.18, s.35
R.S., c.120, s.67; 1966, c.70, s.21; 1978, c.32, s.28; 1983, c.43, s.10; 2023, c.17, s.129; 2024, c.18, s.35
Deputy clerks and deputy administrators
69(1)The Minister of Justice may appoint deputy clerks for each judicial district of the Trial Division of the Court of King’s Bench who may perform the duties and exercise all powers and authority of clerks during the period for which such appointment is made or, where the appointment is not for a definite period, until such appointment is countermanded, and the provisions of sections 70 and 71 apply, mutatis mutandis, to a deputy clerk.
69(2)The Minister of Justice may appoint deputy administrators for each judicial district of the Family Division of the Court of King’s Bench who may perform and exercise all the duties, powers and authority of administrators during the period for which such appointment is made or, where the appointment is not for a definite period, until such appointment is countermanded, and the provisions of sections 70 and 71 apply mutatis mutandis to a deputy administrator.
R.S., c.120, s.68; 1966, c.70, s.22; 1978, c.32, s.29; 1983, c.43, s.11; 2006, c.16, s.94; 2016, c.37, s.201; 2019, c.2, s.78; 2020, c.25, s.64; 2022, c.28, s.30; 2023, c.17, s.129
Titles, fees
70(1)Each person appointed in accordance with subsection 68(1) shall be called “Clerk of the Trial Division of The Court of King’s Bench of New Brunswick for the Judicial District of                                                ” and is entitled to receive on behalf of the Province from the parties litigant the fees prescribed by the Rules of Court.
70(2)Each person appointed in accordance with subsection 68(2) shall be called “Administrator of the Family Division of The Court of King’s Bench of New Brunswick for the Judicial District of                                       ” and is entitled to receive on behalf of the Province from the parties litigant the fees prescribed by the Rules of Court.
70(3)A clerk or an administrator shall be paid for all services performed by the clerk or the administrator such fees as the Lieutenant-Governor in Council may prescribe.
R.S., c.120, s.69; 1958, c.43, s.4; 1960-61, c.51, s.3; 1966, c.70, s.23; 1973, c.53, s.13; 1978, c.32, s.30; 1980, c.28, s.10; 1983, c.43, s.12; 2023, c.17, s.129; 2024, c.18, s.36
Oath
71Each person appointed under section 68 or 69 shall before entering upon the duties of office be sworn to the true and faithful discharge of those duties before a judge of the Court and a certificate of the oath having been duly administered, signed by that judge shall be endorsed on the commission of that clerk or administrator, and the clerk or administrator shall not be deemed to be appointed until the oath is administered and the certificate thereof endorsed as aforesaid.
R.S., c.120, s.70; 1973, c.53, s.14; 1978, c.32, s.31; 1983, c.43, s.13; 2024, c.18, s.37
Ex officio clerks and administrators
71.1The Registrar and any deputy registrars are ex officio clerks and administrators for each judicial district of the Court.
1983, c.43, s.14
SOLICITORS
Repealed
72Repealed: 1982, c.3, s.39
R.S., c.120, s.72; 1982, c.3, s.39
CONTINGENCY FEE AGREEMENTS
Repealed
72.1Repealed: 1996, c.89, s.115
1978, c.32, s.32; 1980, c.28, s.11; 1986, c.4, s.28; 1987, c.6, s.48; 1996, c.89, s.115
RULES OF COURT
Rules of Court and regulations
73(1)The Lieutenant-Governor in Council may at any time amend or repeal the provisions of the Rules of Court, and may make other, further and additional Rules for carrying this Act into effect, and in particular, but without restricting the generality of such powers by enumeration, for all or any of the following matters:
(a) for regulating the fees and allowances in respect of proceedings in the Court of Appeal and the Court of King’s Bench;
(b) respecting the pleading, practice and procedure in the Court of Appeal and the Court of King’s Bench;
(c) respecting the means by which particular facts may be proved and the mode in which evidence thereof may be given
(i) on an application in any matter or proceeding relating to the distribution of funds or property, whether in Court or not, and
(ii) on any application for directions pursuant to such Rules;
(d) respecting the transfer of proceedings to or from the Family Division;
(e) respecting solicitor-client fees based on a contingency fee agreement;
(f) for hearing of appeals from the Court of King’s Bench, The Probate Court of New Brunswick or from any other courts, judges or officers;
(g) where provisions with respect to pleading, practice or procedure are contained in any Act under which the Family Division exercises jurisdiction, for adding to or modifying such provisions to the extent that the Lieutenant-Governor in Council considers necessary to secure just and expeditious determinations of proceedings;
(h) respecting the filing of certificates, applications, notices or any other documents required to be filed in the Court of King’s Bench by virtue of this or any other Act, and designating the judicial district in which such shall be filed;
(i) fixing the rate of interest a verdict or judgment is to bear;
(j) fixing the discount rate to be used in determining the amount of an award in respect of future pecuniary damages;
(k) respecting the use of either or both of the official languages of New Brunswick in the pleading, practice and procedure in the Court of Appeal and the Court of King’s Bench;
(l) respecting vexatious proceedings and the conduct of proceedings in a vexatious manner in the Court of King’s Bench, the Court of Appeal or the Small Claims Court of New Brunswick, including, without limiting the generality of the foregoing, requiring a person to obtain leave to commence further proceedings in those courts or to continue a proceeding previously commenced by the person in any of those courts.
73(2)The Lieutenant-Governor in Council may make regulations
(a) prescribing the duties, powers and authority of the Case Management Masters, Registrar, clerks, administrators, persons authorized by the Registrar under subsection 62.1(1) and other officers appointed under this Act;
(b) as he considers necessary for the proper administration and functioning of the Courts;
(c) determining the number of judicial districts in the Province for the Trial Division and defining their boundaries, and determining the number of judicial districts in the Province for the Family Division and defining their boundaries;
73(3)The Lieutenant-Governor in Council may make regulations respecting interest for the purposes of subsection 48(3), including, without limiting the generality of the foregoing, the rate of interest and the manner of calculating interest.
R.S., c.120, s.73; 1966, c.70, s.24; 1975, c.32, s.2; 1978, c.32, s.33; 1980, c.28, s.12; 1981, c.36, s.13; 1983, c.43, s.16; 1987, c.6, s.48; 1994, c.25, s.3; 2007, c.7, s.2; 2008, c.4, s.1; 2008, c.43, s.8; 2009, c.28, s.10; 2010, c.21, s.2; 2012, c.15, s.44; 2023, c.17, s.129
Rules Committee
73.1(1)There is hereby established a Rules Committee consisting of
(a) the Chief Justice of New Brunswick, or a judge of the Court designated by the Chief Justice of New Brunswick, who shall be chair,
(b) the Chief Justice of the Court of King’s Bench, or a judge of the Court designated by the Chief Justice of the Court of King’s Bench,
(b.1) a judge of the Court of Appeal designated by the Chief Justice of New Brunswick,
(b.2) a judge of the Family Division designated by the Chief Justice of the Court of King’s Bench,
(c) the President of the Law Society of New Brunswick, or the President’s designate,
(d) the Attorney General, or the Attorney General’s designate, and
(e) the Registrar.
73.1(2)The Rules Committee may inquire into and examine
(a) the administration and functioning of the Courts, this Act and the Rules of Court;
(b) the working of and arrangements governing the performance of duties by the officers of the Courts, and
(c) the procedure of the Courts.
73.1(3)The Rules Committee may make recommendations to the Lieutenant-Governor in Council in accordance with the findings under subsection (2).
1978, c.32, s.33; 1981, c.6, s.1; 1983, c.43, s.17; 1987, c.6, s.48; 2009, c.22, s.1; 2023, c.17, s.129; 2024, c.18, s.38
Repealed
73.11Repealed: 2012, c.15, s.44
2009, c.28, s.10; 2009, c.51, s.2; 2012, c.15, s.44
Repealed
73.2Repealed: 1997, c.S-9.1, s.32
1978, c.32, s.33.1; 1979, c.36, s.10; 1982, c.3, s.39; 1982, c.34, s.3; 1983, c.43, s.18; 1986, c.4, s.28; 1987, c.6, s.48; 1997, c.S-9.1, s.32
References, practices
Repealed: 2024, c.18, s.39
2024, c.18, s.39
74Repealed: 2024, c.18, s.40
R.S., c.120, s.74; 1953, c.25, s.14; 1966, c.70, s.25; 1978, c.32, s.34; 1979, c.36, s.1; 1986, c.4, s.28; 1987, c.6, s.48; 2024, c.18, s.40
Coming into force
75The Rules of Court, prescribed in Regulation 82-73 to come into effect on June 1, 1982, are confirmed and shall be deemed to have been made in compliance with sections 73 and 73.2 of this Act, and continue in force until amended or repealed.
R.S., c.120, s.75; 1981, c.36, s.14; 1982, c.34, s.4; 1983, c.43, s.19
Rules of Court form part of Act
76The Rules of Court form part of this Act, and have the force and effect of a legislative enactment.
R.S., c.120, s.76; 1983, c.43, s.2
Modifying provisions
77Where any provisions in respect of the Court of King’s Bench or the Court of Appeal are contained in any statute, Rules of Court may be made for modifying such provisions to any extent that may be deemed necessary for adapting the same to the practice and procedure of the Court of King’s Bench or the Court of Appeal, unless, in the case of an Act passed after the coming into force of this Act, this power is expressly excluded with respect to such Act, or any provision thereof.
R.S., c.120, s.77; 1982, c.3, s.39; 1983, c.43, s.2; 2023, c.17, s.129
Continuation of The Revised Statutes, 1927
78All powers of selling, mortgaging or otherwise dealing with real estate contained in the Schedule of Acts repealed by The Revised Statutes, 1927, continue to be exercisable by the Court or a judge notwithstanding such repeal; and where by any unrepealed Acts or parts of Acts provision is made for proceeding by way of petition, proceedings may hereafter be taken either by petition or by such other mode of proceeding as could be taken under the Rules of Court if petition were not prescribed.
R.S., c.120, s.78; 1983, c.43, s.2
Reference made to Court of King’s Bench
2023, c.17, s.129
79Where in any Act, regulation, rule, order, by-law, agreement or other instrument or document reference is made to the County Court of New Brunswick, or a judge thereof, or to the Supreme Court, or a judge thereof, or to the Queen’s Bench Division of the Supreme Court, or a judge thereof, the reference shall be read as a reference to The Court of King’s Bench or a judge thereof, as the case may be, unless the context otherwise requires.
1978, c.32, s.35; 2023, c.17, s.129
Matters continued, records and files
Repealed: 2024, c.18, s.41
2024, c.18, s.41
80Repealed: 2024, c.18, s.42
1978, c.32, s.35; 1979, c.36, s.1; 2024, c.18, s.42
Matter to be dealt with by Court of Queen’s Bench
Repealed: 2024, c.18, s.43
2024, c.18, s.43
81Repealed: 2024, c.18, s.44
1978, c.32, s.35; 1979, c.36, s.1; 2024, c.18, s.44
Cause or matter continued under section 80, affidavits, directions
Repealed: 2024, c.18, s.45
2024, c.18, s.45
82Repealed: 2024, c.18, s.46
1978, c.32, s.35; 1979, c.36, s.1; 1986, c.4, s.28; 2024, c.18, s.46
Reference means reference to Court of Appeal
83Where in any Act, regulation, rule, order, by-law, agreement or other instrument or document, reference is made or could be construed as being made to the Appeal Division of the Supreme Court or a judge of that Court, the reference shall be taken to mean a reference to the Court of Appeal or a judge thereof.
1978, c.32, s.35; 1987, c.6, s.48
Matter to be dealt with by Court of Appeal, records and files
Repealed: 2024, c.18, s.47
2024, c.18, s.47
84Repealed: 2024, c.18, s.48
1978, c.32, s.35; 1979, c.36, s.1; 2024, c.18, s.48
Matter continued under section 84, affidavits, directions
Repealed: 2024, c.18, s.49
2024, c.18, s.49
85Repealed: 2024, c.18, s.50
1978, c.32, s.35; 1979, c.36, s.1; 2024, c.18, s.50
SCHEDULE A
(a) formation of marriage;
(b) dissolution and annulment of marriage;
(c) jactitation of marriage;
(d) judicial separation;
(e) rights to property, in disputes among members of the same family, including dower, partition and sale, and settlements;
(f) restitution of conjugal rights;
(g) maintenance of a deceased person’s dependents;
(h) alimony, maintenance and protection for spouses;
(i) maintenance of children;
(j) maintenance of parents;
(k) enforcement of alimony and maintenance orders;
(l) affiliation proceedings and proceedings in relation to parentage;
(m) custody of and access to children and parenting time, decision-making responsibility and contact in respect of children;
(n) adoption;
(o) declarations of status, including parentage, validity of marriage, legitimacy and legitimation;
(p) charges or proceedings under the Criminal Code of Canada with respect to incest and other sexual offences committed by a family member against another member of the same family, corrupting children, failing to provide necessaries, abandoning children, abduction of children by members of the same family, assaults by a member of a family against another member of the same family and thefts by a family member from another member of the same family;
(q) Repealed: 1991, c.17, s.1
(r) charges or proceedings against a person in relation to an offence under a provincial statute against another member of his family;
(s) Repealed: 1991, c.17, s.1
(s.1) Repealed: 1991, c.17, s.1
(t) guardianship of the person and property of minors;
(u) consent to medical treatment of minors;
(v) actions in tort where the defendant, or any defendant, is a member of the same family as the plaintiff;
(w) the committal, custody or detention of any person, or the management of his property, for reasons of alcoholism, mental illness, mental incompetency or mental or physical infirmity;
(x) change of name;
(y) presumption of death;
(z) matters in relation to marriage and contracts of marriage that are not otherwise referred to in this Schedule;
(aa) applications, proceedings or any other matter in relation to the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada).
1978, c.32, s.36; 1984, c.38, s.5; 1985, c.4, s.35; 1985, c.53, s.3; 1987, c.P-22.2, s.35; 1990, c.23, s.31; 1991, c.17, s.1, 3; 2008, c.43, s.8; 2015, c.27, s.1; 2020, c.24, s.10
SCHEDULE B
Canadian Judgments Act
Change of Name Act
Child and Youth Well-Being Act
Criminal Code of Canada, section 150, section 153, section 166, section 168, section 197, section 200, section 224, section 245, section 249, section 250, subsection 289(2), section 745, section 746
Custody and Detention of Young Persons Act
Divorce Act (Canada)
Education Act
Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada)
Family Law Act
Family Services Act
Guardianship of Children Act
Interjurisdictional Support Orders Act
International Child Abduction Act
Intimate Partner Violence Intervention Act
Judicature Act and Rules of Court
Marital Property Act
Marriage Act
Medical Consent of Minors Act
Mental Health Act
Presumption of Death Act
Property Act
Provincial Offences Procedure Act
Public Trustee Act
Reciprocal Enforcement of Judgments Act
Support Enforcement Act
Supported Decision-Making and Representation Act
Testators Family Maintenance Act
Treatment of Intoxicated Persons Act
1978, c.32, s.36; 1979, c.36, s.11; 1980, c.28, s.13; 1981, c.36, s.15; 1982, c.3, s.39; 1982, c.34, s.5; 1984, c.38, s.6; 1985, c.C-40, s.17; 1985, c.4, s.35; 1987, c.P-22.2, s.35; 1987, c.6, s.48; 1990, c.22, s.27; 1990, c.23, s.31; 1991, c.17, s.1, 3; 1997, c.42, s.3; 2002, c.I-12.05, s.46; 2005, c.S-15.5, s.58; 2005, c.10, s.1; 2006, c.18, s.3; 2005, c.P-26.5, s.26; 2007, c.52, s.3; 2008, c.43, s.8; 2011, c.53, s.2; 2015, c.27, s.2; 2017, c.53, s.2; 2020, c.24, s.10; 2022, c.60, s.72; 2023, c.36, s.20
SCHEDULE C
Divorce Act (Canada)
1A Case Management Master may exercise the following jurisdiction of the Court of King’s Bench under the Divorce Act (Canada):
(a) to make an interim order under subsection 15.1(2);
(b) to make an interim order under subsection 15.2(2);
(c) to make an interim order under subsection 16.1(2); and
(d) to make an interim order under subsection 16.5(2).
Family Services Act
2A Case Management Master may exercise the jurisdiction of the Court of King’s Bench to make an order under section 110 of the Family Services Act.
Family Law Act
2.1A Case Management Master may exercise the following jurisdiction of the Court of King’s Bench under the Family Law Act:
(a) to make an interim order in accordance with sections 11, 13, 17 and 19, paragraphs 21(2)(a), (b), (d) to (j), (l), (m) and (o) and sections 29 and 30;
(b) to make an interim order under section 24;
(c) to grant leave under subsection 28(1) or section 56;
(d) to issue a certificate under section 31;
(e) to make an interim order in accordance with sections 52, 57, 68, 69 and 70; and
(f) to make an order under section 80.
Support Enforcement Act
3A Case Management Master may exercise the following jurisdiction of the Court of King’s Bench under the Support Enforcement Act:
(a) to make an order under subsection 17(5); and
(b) to make an order under subsections 26(6), (7) and (8).
2010, c.21, s.3; 2020, c.24, s.10; 2023, c.17, s.129
N.B. This Act is consolidated to June 7, 2024.