Acts and Regulations

P-18 - Proceedings Against the Crown Act

Table of contents
Full text
Current to 1 January 2024
CHAPTER P-18
Proceedings Against the Crown Act
Definitions
1In this Act
“agent” , when used in relation to the Crown, includes an independent contractor employed by the Crown;(représentant)
“Crown” means the Crown in right of the Province and includes a Crown corporation;(Couronne)
“Crown corporation” includes, but is not limited to, the New Brunswick Power Corporation, the New Brunswick Energy Marketing Corporation, the New Brunswick Liquor Corporation, New Brunswick Lotteries and Gaming Corporation, the Financial and Consumer Services Commission, the New Brunswick Credit Union Deposit Insurance Corporation, the Workplace Health, Safety and Compensation Commission, the New Brunswick Community College (NBCC), the Collège communautaire du Nouveau-Brunswick (CCNB), the New Brunswick Housing Corporation, Service New Brunswick, the New Brunswick Highway Corporation, the New Brunswick Research and Productivity Council, Opportunities New Brunswick, the Agriculture, Aquaculture and Fisheries Development Board and the New Brunswick Economic and Social Inclusion Corporation;(corporation de la Couronne)
“officer” , in relation to the Crown, includes a Minister of the Crown and a servant of the Crown;(fonctionnaire)
“order” includes a judgment, decree, rule, award, and declaration;(ordonnance)
“person” does not include the Crown;(personne)
“proceedings against the Crown” includes a claim by way of set-off or counterclaim raised in proceedings by the Crown, and interpleader proceedings to which the Crown is party;(procédures contre la Couronne)
“Rules of Court” means Rules of Court made under the Judicature Act.(Règles de procédures)
R.S., c.176, s.1; 1976, c.47, s.1; 1979, c.41, s.98; 1981, c.80, s.30; 1985, c.4, s.55; 1987, c.43, s.1; 1989, c.N-5.01, s.35; 1991, c.59, s.56; 1994, c.70, s.8; 1995, c.N-5.11, s.47; 1998, c.12, s.16; 2003, c.E-4.6, s.169; 2004, c.S-5.5, s.225; 2005, c.E-9.15, s.29; 2008, c.G-1.5, s.88; 2009, c.37, s.2; 2010, c.E-1.105, s.46; 2010, c.N-6.005, s.33; 2010, c.N-4.05, s.59; 2011, c.24, s.37; 2013, c.7, s.161; 2013, c.31, s.29; 2015, c.2, s.66; 2015, c.3, s.19; 2015, c.44, s.102; 2016, c.28, s.32; 2017, c.3, s.30
Act subject to other Acts, interpretation
2(1)This Act is subject to the Workers’ Compensation Act, The Succession Duty Act, 1934, The New Brunswick Corporation Income Tax Act, 1947, The New Brunswick Corporation Income Tax Act, 1949, the Expropriation Act, the Federal Courts Jurisdiction Act, and such other Acts as may be designated by the Lieutenant-Governor in Council.
2(2)Except as otherwise provided in this Act, nothing in this Act
(a) subjects the Crown to greater liability in respect of the acts or omissions of an independent contractor employed by the Crown than that to which the Crown would be subject in respect of such acts or omissions if it were a private person;
(b) subjects the Crown, in its capacity as a highway authority, to any greater liability than that to which a local government incorporated or continued under the Local Governance Act is subject in that capacity;
(c) affects any right of the Crown to intervene in proceedings affecting its rights, property or profits;
(d) subjects the Crown to proceedings under this Act in respect of a cause of action that is enforceable against a Crown corporation;
(e) subjects the Crown to proceedings under this Act in respect of anything done in the enforcement of the criminal law or the provisions of any Act of the Legislature.
2(3)Subject to this Act, where a person has a claim against an officer of the Crown that, if this Act had not been passed, might be enforced subject to the consent of an officer of the Crown, then the claim may be enforced as of right without such consent.
R.S., c.176, s.2; 1959, c.64, s.1; 1981, c.80, s.29; 2017, c.20, s.140
I
SUBSTANTIVE LAW
Power of person to sue Crown
3Subject to this Act, a person who has a claim against the Crown may enforce it as of right by proceedings against the Crown in accordance with this Act in all cases in which
(a) the land, goods or money of a person are in the possession of the Crown,
(b) the claim arises out of a contract entered into by or on behalf of the Crown, or
(c) the claim is based upon liability of the Crown in tort to which it is subject by this Act.
R.S., c.176, s.3
Liability
4(1)Subject to this Act, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject,
(a) in respect of a tort to real or personal property, or causing bodily injury, committed by an officer or agent;
(b) in respect of a breach of a duty that a person owes to his servant or agent by reason of being his employer;
(c) in respect of a breach of a duty attaching to ownership, occupation, possession or control of property;
(d) under any enactment, or under any regulation made under authority of any enactment.
4(2)No proceedings lie against the Crown under paragraph (1)(a) in respect of an act or omission of an officer or agent unless the act or omission would, apart from this Act, have given rise to a cause of action in tort against that officer or agent or his personal representative.
4(3)Where a function is conferred or imposed upon an officer of the Crown as such by common law or by statute, and that officer commits a tort in the course of performing or purporting to perform that function, the liability of the Crown in respect of the tort is the same as if that function had been conferred or imposed solely by virtue of instructions lawfully given by the Crown.
4(4)An enactment that negatives or limits the amount of the liability of an officer of the Crown in respect of any tort committed by that officer, in the case of proceedings against the Crown under this Act in respect of a tort committed by that officer, applies in relation to the Crown as it would have applied in relation to that officer if the proceedings against the Crown had been proceedings against that officer.
4(5)Where property vests in the Crown by virtue of any rule of law that operates independently of the acts or the intentions of the Crown, the Crown is not, by virtue of this Act, subject to liability in tort by reason only of the property being so vested; but this subsection is without prejudice to the liability of the Crown under this Act in respect of any period after the Crown, or any person acting for the Crown, has in fact taken possession or control of the property, or entered into occupation thereof.
4(6)No proceedings lie against the Crown under this Act in respect of anything done or omitted to be done by any person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connection with the execution of judicial process.
4(7)No proceedings lie against the Crown under this Act in respect of any act, neglect or default of any officer of the Crown, unless that officer has been directly or indirectly appointed by the Crown and at the material time paid in respect of his duties as such officer wholly by the Crown.
4(8)Notwithstanding any provision of this or any other Act, no proceedings lie directly against an officer or agent of the Crown, in the name of the officer or agent or in the name of his or her office, in respect of anything done or omitted to be done by the officer or agent in the course of the performance or purported performance of his or her duties.
4(9)Notwithstanding subsection (8), where anything done or omitted to be done by an officer or agent of the Crown would give rise to a cause of action in respect of which the Crown would, but for subsection (8), be subject to liability and to proceedings under this Act, proceedings may be instituted, in accordance with this Act, directly against the Crown in respect of that cause of action.
R.S., c.176, s.4; 1997, c.25, s.1
Indemnity and contribution
5The law relating to indemnity and contribution is enforceable by and against the Crown in respect of any liability to which it is subject, as if the Crown were a person of full age and capacity.
R.S., c.176, s.5
II
JURISDICTION AND PROCEDURE
Jurisdiction of Courts
6Subject to this Act, proceedings against the Crown may be instituted in The Court of King’s Bench of New Brunswick and proceeded with in accordance with the Judicature Act.
R.S., c.176, s.6; 1979, c.41, s.98; 2023, c.17, s.211
Repealed
7Repealed: 1979, c.41, s.98
R.S., c.176, s.7; 1979, c.41, s.98
Appeals
8Subject to this Act, all enactments and Rules of Court relating to appeals and stay of execution or proceedings, with necessary modifications, apply to proceedings against the Crown.
R.S., c.176, s.8; 1985, c.4, s.55
Jurisdiction of Courts
9Nothing in this Act authorizes proceedings against the Crown in an inferior court.
R.S., c.176, s.9
Rules of Court
10In proceedings against the Crown, the rules of the court in which the proceedings are pending as to discovery and inspection of documents and examination for discovery, oral and written, apply in the same manner as if the Crown were an ordinary corporation, except that
(a) the Crown may refuse to produce a document or to make answer to a question on discovery on the ground that the production or the answer would be injurious to the public interest, and nothing in this section affects the rights of the Crown or any officer or agent of the Crown in connection with such refusal, and
(b) the person who shall be examined for discovery shall be
(i) an officer or agent of the Crown designated by the Deputy Attorney General, or
(ii) such other person as may be ordered by the court on the application of a party entitled to examine the Crown for discovery.
R.S., c.176, s.10; 1994, c.65, s.1
Designation of Crown and Crown Corporation
11Where proceedings are taken under this Act against the Crown, the Crown shall be designated as the Province of New Brunswick and where proceedings are taken under this Act against a Crown corporation, the Crown corporation shall be designated by its corporate name.
R.S., c.176, s.11
Service of Crown or Crown Corporation
12A document to be served on the Crown shall be served by delivering a copy to the Attorney General or the Deputy Attorney General or any barrister or solicitor employed in the Office of the Attorney General, the part of the Department of Justice and Public Safety that includes the Legal Services Branch, the Legislative Services Branch, the Family Crown Services Branch and the Public Prosecution Services Branch, or to a solicitor designated for the purpose by the Attorney General; and a document to be served on a Crown corporation shall be served in the same manner as upon an ordinary corporation.
R.S., c.176, s.12; 1967, c.38, s.2; 1981, c.6, s.1, 3; 2012, c.39, s.117; 2013, c.42, s.14; 2019, c.2, s.116; 2020, c.25, s.88
Interpleader proceedings
13The Crown may obtain relief by way of interpleader proceedings, and may be made a party to such proceedings in the same manner as a person may obtain relief by way of such proceedings or be made a party thereto, notwithstanding that the application for relief is made by a sheriff or bailiff or other like officer; and the provisions relating to interpleader proceedings under the Judicature Act, subject to this Act, have effect accordingly.
R.S., c.176, s.13; 1979, c.41, s.98
Rights of parties
14(1)Subject to this Act, in proceedings against the Crown the rights of the parties are as nearly as possible the same as in a suit between person and person; and the court may make any order, including an order as to costs, that it may make in proceedings between persons, and may otherwise give such appropriate relief as the case may require.
14(2)Where, in proceedings against the Crown, any relief is sought that might, in proceedings between persons, be granted by way of injunction or specific performance, the court shall not, as against the Crown, grant an injunction or make an order for specific performance, but may, in lieu thereof, make an order declaratory of the rights of the parties.
14(3)In proceedings against the Crown in which the recovery of land or other property is claimed, the court shall not make an order for the recovery of the land or the delivery of the property; but in lieu thereof, may make an order declaring that the claimant is entitled, as against the Crown, to the land or property or to the possession thereof.
14(4)The court shall not in any proceedings grant an injunction or make an order against an officer or agent of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown that could not have been obtained in proceedings against the Crown but, in lieu thereof, may make an order declaratory of the rights of the parties.
14(5)No person may avail himself of any set-off or counterclaim in proceedings by the Crown for the recovery of taxes, duties, or penalties, or avail himself, in proceedings of any other nature by the Crown, of any set-off or counterclaim arising out of a right or claim to repayment in respect of any taxes, duties or penalties.
14(6)No person may, without leave of the court, avail himself of any set-off or counterclaim in proceedings by the Crown unless the subject matter of either the set-off or counterclaim relates to a matter under the administration of the same minister or Crown corporation as the matter with respect to which the proceedings are brought by the Crown.
R.S., c.176, s.14
Notice of Action
15(1)No action shall be brought against the Crown unless two months previous notice in writing thereof has been served on the Attorney General, or on the corporation in the case of an action to be brought against a Crown corporation, in which notice the name and residence of the proposed plaintiff, cause of action, and the court in which it is to be brought shall be explicitly stated.
15(2)If the notice is served before the expiry of the limitation period that applies to the action and the two-month period referred to in subsection (1) ends after the expiry of the limitation period, the limitation period is extended by seven days after the end of the two-month period.
R.S., c.176, s.15; 1967, c.38, s.2; 1981, c.6, s.1; 1985, c.4, s.55; 1987, c.6, s.86; 2009, c.L-8.5, s.37.1
III
JUDGMENT AND EXECUTION
Interest on judgment
16A judgment debt due to or from the Crown bears interest in the same way as a judgment debt due from one person to another.
R.S., c.176, s.16
Judgment and execution
17(1)Subject to this Act, where in proceedings against the Crown, an order for costs or any other order is made by a court against the Crown, the proper officer of the court shall, on an application in that behalf, issue a certificate thereof.
17(2)If the court so directs, a separate certificate shall be issued with respect to the costs, if any, ordered to be paid to the applicant.
17(3)In proceedings against the Crown if the order provides for the payment of money by way of damages or otherwise, or of costs, the certificate shall state the amount so payable; and the Minister of Finance and Treasury Board or the Crown corporation, as the case may be, shall, after the expiry of the time limited for appeal to the Court of Appeal if no appeal is taken, pay out of the Consolidated Fund or out of the funds of the corporation, as the case may be, to the person entitled, or to his order, the amount appearing by the certificate to be due together with the interest, if any, lawfully due thereon.
17(4)If an appeal is taken to the Court of Appeal the Minister of Finance and Treasury Board or Crown corporation shall not pay out any money under subsection (3) until the final determination of the appeal.
17(5)Where an appeal is taken from a judgment of the Court of Appeal, the Court or a judge thereof may order that, pending determination of the appeal, payment of the whole of the amount so payable, or any part thereof, shall be suspended; and, if the certificate has not been issued, may order the direction to be inserted therein.
17(6)No execution or process in the nature thereof shall be issued out of any court for enforcing payment by the Crown of money or costs.
R.S., c.176, s.17; O.C. 68-516; 2013, c.32, s.32; 2019, c.29, s.124
Enforcement of orders made under the Canadian Free Trade Agreement
2019, c.7, s.1
17.1(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.
17.1(2)A certified copy of an order made by a Presiding Body under Chapter 10 of the Canadian Free Trade Agreement that requires the Crown to pay a monetary penalty, tariff costs and additional costs, or any of them, may be filed with The Court of King’s Bench of New Brunswick, and, when filed, has the same force and effect as an order for the payment of money or costs made by that Court against the Crown.
2011, c.49, s.1; 2019, c.7, s.2; 2023, c.17, s.211
IV
MISCELLANEOUS
AND SUPPLEMENTAL
Statutory defences of Crown
18In proceedings against the Crown, any law in force in the Province, that could, if the proceedings were between persons, be relied upon by the defendant as a defence to the proceedings or otherwise, may, subject to any express provision to the contrary, be so relied upon by the Crown.
R.S., c.176, s.18
Rules of Court
19A power to make Rules of Court includes power to make rules for the purpose of giving effect to this Act, and any such rules may contain provisions relating to proceedings against the Crown in substitution for or by way of addition to any of the provisions of the rules applying to proceedings between subjects.
R.S., c.176, s.19; 1985, c.4, s.55
Expenses of Crown paid out of Consolidated Fund
20Expenditure incurred by or on behalf of the Crown under this Act shall be defrayed out of the Consolidated Fund and expenditure incurred by or on behalf of a Crown corporation under this Act shall be defrayed by the corporation.
R.S., c.176, s.20
Application of Act
21No proceedings may be brought against the Crown except as provided by this Act.
R.S., c.176, s.21
Idem
22No proceedings shall be brought against the Crown under this Act in respect of any act or omission, transaction, matter or thing arising, occurring or existing before the date on which this Act comes into force.
R.S., c.176, s.22
Personal injury or death of Crown employee
23Notwithstanding the provisions of this Act, no action lies against the Crown for personal injury to or the death of an employee of the Crown caused by accident arising out of and in the course of his employment by the Crown.
1953, c.6, s.1
N.B. This Act is consolidated to June 16, 2023.