Acts and Regulations

E-11 - Evidence Act

Full text
Document at 16 April 2017
CHAPTER E-11
Evidence Act
Definitions
1In this Act
“bank” means a bank to which the Bank Act, as enacted by section 2 of the Banks and Banking Law Revision Act, 1980, chapter 40 of the Statutes of Canada, 1980-81-82-83, applies and includes any branch or agency thereof;(banque)
“business” includes every kind of business, profession, trade, occupation and the operation of institutions whether carried on for profit or not;(entreprise)
“court” includes a judge, arbitrator, umpire, commission, tribunal and any other body or person having by law or consent of parties authority to receive evidence;(cour)
“in any court” includes “before any court”;(dans une cour)
“spouse” means a legally married person;(conjoint)
“telegram” includes cablegram and radiogram;(télégramme)
“witness” includes party to an action, suit or judicial proceeding when entitled or compellable to be examined.(témoin)
R.S., c.74, s.1; 1960, c.29, s.1; 1985, c.4, s.23; 2008, c.45, s.2
WITNESSES
No incompetency by reason of interest or crime
2No person is incompetent to give evidence by reason of interest or crime.
R.S., c.74, s.2
Competency and compellability of parties and spouses
3(1)On the trial of an issue or of a matter or question, or on an inquiry arising in any suit, action or proceeding in a court, the parties thereto and the persons in whose behalf the action, matter or proceeding is brought or instituted, or opposed or defended, and the spouses of such parties and persons, are, except as hereinafter excepted, competent and compellable to give evidence either viva voce or by deposition according to the practice of the court, on behalf of either or any of the parties to the action, matter or proceeding.
3(2)Repealed: 1990, c.17, s.1
R.S., c.74, s.3; 1990, c.17, s.1; 2008, c.45, s.2
Evidence of spouse re sexual intercourse
3.1Without limiting the generality of subsection 3(1), a spouse may, in an action, matter or other proceeding in any court, give evidence that he or she did or did not have sexual intercourse with the other party to the marriage at any time, or within any period of time, before or during the marriage.
1980, c.C-2.1, s.151; 2008, c.45, s.2
Evidence for or against spouse
4On the trial of an issue or of a matter or question, or on an inquiry arising in any action, matter or other proceeding in any court, a spouse is competent to give evidence for or against his or her spouse.
R.S., c.74, s.4; 1990, c.17, s.2; 2008, c.43, s.6; 2008, c.45, s.2
Non-compellability of person charged or spouse of person charged
5On the trial of a person in any court for a violation of a statute of this Province, or upon the prosecution of a person for any penalty under a law of this Province, the person charged and his or her spouse are competent witnesses, whether the person so charged is charged solely or jointly with another person; but neither such person nor his or her spouse is compellable to testify.
R.S., c.74, s.5; 1990, c.17, s.3; 2008, c.45, s.2
Compellability of witness respecting disclosure of indebtedness
6A witness cannot by law refuse to answer a question relative to the matter in issue by reason only that the answering of the question may establish or tend to establish that he owes a debt or is otherwise subject to a civil suit, either at the instance of Her Majesty, or of any other person.
R.S., c.74, s.6
Compellability of witness respecting disclosure of criminal act
7In any civil proceeding, as well as upon the trial of a person in any court for a violation of a statute of this Province, or upon a prosecution in any court for any penalty imposed by a law of this Province, no person shall be excused from answering any question upon the ground that the answer to such question may tend to render him liable to a prosecution, penalty or forfeiture under the laws of this Province, or under any statute of Canada, whereby it is made an offence to violate any provincial statute; but no evidence so given shall be used or receivable in evidence against such person in any proceeding instituted against him other than a prosecution for perjury in giving such evidence.
R.S., c.74, s.7
Repealed
8Repealed: 1990, c.17, s.4
R.S., c.74, s.8; 1990, c.17, s.4
Non-compellability of accused or spouse of accused
9Nothing herein renders a person charged with an offence against a law of this Province compellable to give evidence for or against himself or herself, or his or her spouse compellable to give evidence for or against such person.
R.S., c.74, s.9; 2008, c.45, s.2
Compellability of spouses
10Nothing in this Act renders a spouse compellable to disclose any communication made to him or her by his or her spouse during their marriage.
R.S., c.74, s.10; 2008, c.45, s.2
Application of Act
11Nothing herein extends or applies to any prosecution instituted under and by virtue of the criminal laws of Canada for any breach of a provincial statute.
R.S., c.74, s.11
Repealed
11.1Repealed: 1982, c.22, s.1
1980, c.18, s.1; 1982, c.22, s.1
OATHS
Power of court to administer oath
12Every court is hereby empowered to administer an oath to all such witnesses as are legally called before it.
R.S., c.74, s.12
Manner of taking oath
13Where an oath may be lawfully taken, it may be administered to a person while such person holds in his hand a copy of the Old or New Testament without requiring him to kiss the same, or, when he objects to being sworn in this manner or declares that the oath so administered is not binding upon his conscience, then in such manner and form and with such ceremonies as he declares to be binding.
1966, c.52, s.1; 1983, c.4, s.6
Solemn affirmation or declaration
14(1)Where a person called as a witness, or desiring to give evidence or required or desiring to make an affidavit or deposition refuses or is unwilling to be sworn on grounds of conscientious motives, the Court or person qualified to take affidavits or depositions shall permit such person, instead of being sworn, to make solemn affirmation by using the words,
“I do solemnly affirm”
14(2)Such solemn affirmation and declaration is of the same force and effect as if such person had taken an oath in the usual form.
R.S., c.74, s.13; 1983, c.4, s.6
Disbelief in oath
15Where an oath has been administered and taken, the fact that the person to whom it was administered and by whom it was taken did not at the time of taking the oath believe in the binding effect of the oath does not, for any purpose, affect the validity of the oath.
R.S., c.74, s.14
Solemn declaration respecting written document
16Any Notary Public, Commissioner for taking affidavits to be read in The Court of Queen’s Bench of New Brunswick or other functionary authorized by law to administer an oath may receive the solemn declaration of any person voluntarily making the same before him, in the form following, in attestation of the truth of any fact or of any account rendered in writing:
I, A. B., do solemnly declare (state the fact or facts declared to), and I make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath, and by virtue of the Evidence Act. Declared before me . . . . . . . . . .at . . . . . . . . .this . . . . . . . . . . day of . . . . . . . . . . . . . . . . . . . ., 19. . .
R.S., c.74, s.15; 1979, c.41, s.46; 1984, c.27, s.8
EXAMINATION OF WITNESSES
Proof of adversity of witness
17The party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, if the witness in the opinion of the judge proves adverse, contradict him by other evidence, or by leave of the judge prove that he has made at other times a statement inconsistent with his present testimony; but before such last mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness and he must be asked whether or not he has made such statement.
R.S., c.74, s.16
Contradiction of witness on cross-examination
18If a witness upon cross-examination as to a former statement made by him relative to the subject matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness and he must be asked whether or not he has made such statement.
R.S., c.74, s.17
Examination of witness respecting previous statements in writing
19A witness may be examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the cause, without such writing being shown to him; but if it is intended to contradict such witness by the writing, before such contradictory proof can be given, his attention must be called to those parts of the writing that are to be used for the purpose of so contradicting him; and it is competent for the judge at any time during the trial to require the production of the writing for his own inspection, and he may thereupon make such use of it for the purposes of the trial as he thinks fit.
R.S., c.74, s.18
Examination of witness respecting prior conviction, certificate of conviction
20(1)A witness in any cause may be questioned as to whether he has been convicted of any crime; and upon being so questioned, if he either denies the fact or refuses to answer, the opposite party may prove such conviction.
20(2)A certificate containing the substance and effect only, omitting the formal part of the indictment or charge and conviction for such offence, purporting to be signed by the Registrar or the clerk of the court, or other officer having the custody of the records of the court, in or before which the offender was convicted, or by the deputy of such Registrar, clerk or officer, for which certificate a fee of one dollar and no more shall be paid, is, upon proof of the identity of the person, sufficient evidence of the said conviction without proof of the signature or official character of the person appearing to have signed the same.
R.S., c.74, s.19
Necessity of proof of instrument by attesting witness
21It is not necessary to prove by the attesting witness an instrument to the validity of which attestation is not requisite, and such an instrument may be proved by admission or otherwise, as if there had been no attesting witness thereto.
R.S., c.74, s.20
Resolution of dispute respecting genuineness of handwriting
22Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court or jury as evidence of the genuineness or otherwise of the writing in dispute.
R.S., c.74, s.21
Expert opinion witnesses
23Where it is intended by any party to an action to examine as witnesses professional or other experts entitled according to the law or practice to give opinion evidence, not more than three of such witnesses may be called by either side to give opinion evidence on any issue in the action without the leave of the court.
R.S., c.74, s.22
Repealed
23.1Repealed: 1982, c.22, s.1
1980, c.18, s.2; 1982, c.22, s.1
Repealed
23.2Repealed: 1982, c.22, s.1
1980, c.18, s.2; 1982, c.22, s.1
Repealed
23.3Repealed: 1982, c.22, s.1
1980, c.18, s.2; 1982, c.22, s.1
Child of tender years
24(1)Where in an action a child of tender years is tendered as a witness, and the child does not in the opinion of the court understand the nature of an oath, the evidence of the child may be received though not given upon oath, if in the opinion of the court the child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.
24(2)Repealed: 1990, c.17, s.5
R.S., c.74, s.23; 1990, c.17, s.5
Powers of Shorthand Reporter respecting recording of evidence
25(1)Notwithstanding any Act, regulation or rule of court, an Official Shorthand Reporter, Special Court Shorthand Reporter or other person, who is authorized to record evidence and proceedings in an action or a legal proceeding may record the evidence and proceedings
(a) by any form of shorthand writing,
(b) by any mechanical device of a type approved by the Minister of Justice and Public Safety, or
(c) by any sound recording device of a type approved by the Minister of Justice and Public Safety.
Admissibility of certified copy of evidence taken by Shorthand Reporter
25(2)Notwithstanding any Act, regulation or a rule of court, a transcript of the whole or part of any evidence or proceedings that has been recorded in accordance with subsection (1) and that has been certified as a true report of the evidence or proceedings by the person who recorded the evidence or proceedings, or by the judge or other person who presided over the action or proceedings and that is otherwise admissible by law, is admissible in evidence whether or not the witness or any of the parties to the action or legal proceedings has approved the method used to record the evidence and proceedings and whether or not he has read or signed the transcript.
1966, c.52, s.2; 1979, c.41, s.46; 2006, c.16, s.63; 2012, c.39, s.65; 2016, c.37, s.64
Destruction and preservation of records
26(0.1)This section applies to evidence or proceedings before a board, commission, tribunal, body or commissioner.
26(1)Subject to subsection (3), where a transcript of evidence or proceedings recorded in accordance with subsection 25(1) has been made and certified in accordance with subsection 25(2), the Official Shorthand Reporter, Special Court Shorthand Reporter, or other person who recorded the evidence and proceedings may, after the expiration of thirty days from the day on which the transcript was made and certified, destroy the record or erase any recording thereof.
26(2)Subject to subsection (3), where a transcript of evidence or proceedings recorded in accordance with subsection 25(1) has not been made and certified in accordance with subsection 25(2), the Official Shorthand Reporter, Special Court Shorthand Reporter, or other person who recorded the evidence and proceedings, shall not destroy the record or erase any recording thereof for such period after it has been made as the Minister of Justice and Public Safety may by regulation prescribe, but after that period has expired, he may destroy the record or erase the recording thereof.
26(3)An interested person, without notice to any other person, may apply for an order providing for the preservation for a specified period of any record made under subsection 25(1).
26(4)Subject to subsection (4.1), any application for an order under subsection (3) is to be made to the board, commission, tribunal, body or commissioner before which or whom the evidence was given or the proceedings were held.
26(4.1)In the case of any record of evidence or proceedings before any board, commission, tribunal, body or commissioner that or who has ceased to have authority to act in the matter in respect of which the evidence was given or the proceedings were held, an application for an order under subsection (3) is to be made to the Minister of Justice and Public Safety.
26(5)The person to whom the application was made under subsection (4) or (4.1) may make such order as he deems proper under the circumstances.
26(6)Where an order made under subsection (5) is served on the person making or having possession of the record referred to in the order, that person shall preserve it for the period specified in the order.
1966, c.52, s.2; 1979, c.41, s.46; 2006, c.16, s.63; 2009, c.R-4.5, s.22; 2012, c.39, s.65; 2016, c.37, s.64
Repealed
27Repealed: 1982, c.22, s.1
1967, c.37, s.1; 1982, c.22, s.1
DISOBEDIENCE TO
SUMMONS TO WITNESS
1986, c.4, s.18
Civil liability of witness respecting disobedience of summons to witness
28A witness served in due time with a summons to witness issued out of a court in this province and paid his proper attendance money, who makes default in obeying such summons to witness without any lawful and reasonable impediment, is, in addition to any penalty he may incur as for a contempt of court or by law, liable to an action on the part of the person by whom, or on whose behalf, he is served with the summons to witness, for any damage that such person may sustain or be put to by reason of such default.
R.S., c.74, s.24; 1986, c.4, s.18
Bringing up prisoner as witness
29(1)A judge of The Court of Queen’s Bench of New Brunswick, upon application on affidavit of either party to a suit pending in his court, may issue an order under his hand and the seal of the court for bringing up before the court any prisoner confined in a jail, or person under any sentence or under commitment for trial, or under process in a civil suit, to be examined as a witness in such suit pending in such court; but the person having the custody of the prisoner is not bound to obey such order unless tender is made to him of a reasonable sum for the conveyance and maintenance of a proper officer or officers and of the prisoner, going to, remaining at and returning from such court.
29(2)After the person so in custody has testified, he shall be returned forthwith by the officer who has him in charge to the jail or prison, and such person shall, for the purpose of serving or completing the term of his imprisonment, be deemed to have remained continuously in such jail or prison, notwithstanding his having been taken therefrom as aforesaid as a witness.
29(3)No sheriff, jailer or other officer is liable to any action or prosecution for acting in obedience to any such order, and if sued he may plead the general issue and give such order in evidence thereunder.
R.S., c.74, s.25; 1979, c.41, s.46
POWERS OF CERTAIN COMMISSIONERS
Order of commissioner respecting witness
30When a commission is issued from any court of any other province, state or kingdom for the examination of a witness in this Province by a commissioner named in the commission, such commissioner may make an order for the attendance of the witness, with such books, papers, documents or writings of any kind as may be in the custody, power or possession of such witness, to be mentioned in such order, at such time and place as the commissioner appoints.
R.S., c.74, s.26
Order of commissioner respecting attachment of witness
31Where, after any such order is served on the witness and reasonable expenses are tendered in the manner prescribed by law or the practice of The Court of Queen’s Bench of New Brunswick for the service of summonses to witness in actions depending in the said Court, the witness does not attend in obedience to such order and produce and give in evidence such books, papers, documents or writings or, having attended, without sufficient cause neglects or refuses to give evidence of the matters in question, the commissioner or the attorney or agent of any of the parties to the action, proceeding or suit in which the commission is issued may apply to a judge of The Court of Queen’s Bench of New Brunswick who shall forthwith, upon an affidavit of such service, refusal or default, order such witness to appear before him at such time and place as he appoints, to show cause why an attachment should not be issued against him for such neglect, refusal or default.
R.S., c.74, s.27; 1979, c.41, s.46; 1986, c.4, s.18
Order of judge respecting attachment of witness
32The judge is hereby required to issue such attachment, unless good and sufficient cause is shown to the contrary, and to make such further order in the matter with reference to such witness and such examination, and the costs and expenses thereof, and of such neglect, refusal or default as he may deem proper, and may order the witness to pay all costs and expenses incurred by such neglect, refusal or default, and may enforce such payment by attachment.
R.S., c.74, s.28
TESTIMONY ON FORMER TRIAL
Admissibility of evidence given at former trial
33On the trial of a cause the testimony of any witness given on a former trial may, subject to all legal exceptions, be given in evidence between the same parties or those claiming under them, either from the judge’s notes or from the evidence taken, reported and certified by a stenographer, under and as provided by the statutes respecting shorthand reporting in the courts, if the judge on the subsequent trial is satisfied that the witness is dead or out of the Province or from sickness or inability is unable to attend.
R.S., c.74, s.29
Notice respecting production of judge’s notes
34When the judge’s notes are required on a trial, notice shall be given to the judge who took the same, and he may either produce and read the same in court, or may transmit them to the presiding judge to be read by him on such subsequent trial.
R.S., c.74, s.30
Admissibility of evidence given at prior proceedings
35(1)In addition to all other cases where testimony in prior proceedings may now be lawfully received as evidence,
(a) where testimony has been given or an unsworn statement has been made by a person before a court of record in Canada, a royal commission, a board of inquiry or any other board, commission, tribunal or body established under the authority of a statute of Canada or of a province thereof or of a treaty binding on Canada, and
(b) where such person is dead or unfit by reason of his bodily or mental condition to attend as a witness or if he is outside the Province and it is not reasonably practicable to secure his attendance before the court or on commission, or if reasonable efforts to find him have been made without success, and
(c) where the party against whom such evidence or unsworn statement is tendered or his predecessor in interest or other privy was represented before such previous court, commission, board, tribunal or body and either called such person or had an opportunity to examine or question such person,
the testimony or statement of such person is admissible as evidence.
35(2)What purports to be a copy of the testimony or statement of such person and purports to have been printed by or on behalf of such court, commission, board, tribunal or body or by or on behalf of the Queen’s Printer or other official printer of Canada or a province thereof or the United States of America, or a state thereof or of Great Britain, is prima facie proof thereof.
35(3)What purports to be a transcript of the evidence or statement of such person produced from proper custody and purports to be certified by a shorthand reporter who recorded or transcribed such evidence or statement or purports to be certified by the presiding officer, is prima facie proof thereof.
1960, c.29, s.2
PUBLIC RECORDS
Admissibility of copy of public record
36A copy of any record, grant, letters patent, surrender, escheat, inquisition, lease, licence, conveyance, map, plan, record of survey, document or writing or of any part of same filed, recorded or deposited in any public office in this Province or in any public office of Canada, or in any other province of Canada, duly proved by any witness who has examined the same with the original to be a true copy, or certified by an officer of that office to be a true copy thereof, shall without proof of the official character or handwriting of such officer be deemed and taken in all courts to be as good and sufficient evidence of such record, grant, letters patent, surrender, escheat, inquisition, lease, licence, conveyance, map, plan, record of survey, document or writing as the original or any exemplification thereof under the Great Seal.
R.S., c.74, s.31; 1992, c.59, s.1
Admissibility of copy of parts of public record
37When parts of records or rolls of judgments in The Court of Queen’s Bench of New Brunswick, or of inquisitions, surrenders, escheats, leases, licences, judgments or conveyances, by, to, or from or in favour of or against the Crown, may be necessary to be given in evidence, exemplifications of such parts that may be so necessary may be received in evidence in any court in this Province without requiring the whole of the record, roll, inquisition, surrender, escheat, lease, licence, judgment or conveyance to be exemplified.
R.S., c.74, s.32; 1979, c.41, s.46
Effect of omissions from copy of public record
38In the proof of title from the Crown by an exemplification under the Great Seal, or by a certified or an examined copy, as is hereinbefore provided, and, without limitation by the foregoing words of this section, in any copy of any record, grant, letters patent, surrender, escheat, inquisition, lease, licence, conveyance, document or writing, or of any part of the same, admissible in evidence under section 36, it is not necessary to copy the conditions contained in such grant, letters patent, surrender, escheat, inquisition, lease, licence or conveyance, on the part of the grantees, lessees or licensees, their heirs or assigns, to be observed or performed, or any other clause in the said grant, letters patent, surrender, escheat, inquisition, lease, licence or conveyance that may not be pertinent or relevant to the matter in question; and no such exemplification, examined or certified copy shall be rejected in evidence on account of the omission of such clauses, if such omission does not prejudice the opposite party or affect the merits in question.
R.S., c.74, s.33
Annexation of certified plan to public record
39When such record, grant, letters patent, surrender, escheat, inquisition, lease, licence or conveyance refers to any plat or plan as annexed thereto, no exemplification or copy of such record, grant, letters patent, surrender, escheat, inquisition, lease, licence or conveyance shall be received in evidence unless there is annexed thereto a true transcript or copy of such plat or plan unless it is proved by the certificate of the Minister of Energy and Resource Development or other public officer of the Province having charge of the original, or otherwise to the satisfaction of the court at which the evidence may be tendered, that there is no such plat or plan entered in or attached to the said grant, letters patent, surrender, escheat, inquisition, lease, licence or conveyance in the office of the Minister of Energy and Resource Development or other public officer of the Province aforesaid, or as the case may be.
R.S., c.74, s.34; 1966, c.53, s.2; 1986, c.8, s.40; 2004, c.20, s.24; 2016, c.37, s.64
Certificate of Minister of Energy and Resource Development respecting plan annexed to public record
40A copy of any plan or record of survey on file in the office of the Minister of Energy and Resource Development certified by such Minister or his deputy to be a true and correct copy of a plan or record of survey on file in such office, is admissible in evidence in all cases where the original plan or record of survey would be admissible in evidence; and the said copy plan or copy record of survey, with the certificate of the said Minister or his deputy, shall, without proof of official character or handwriting, be deemed and taken to be prima facie evidence of such original plan or record of survey.
R.S., c.74, s.35; 1966, c.53, s.2; 1986, c.8, s.40; 2004, c.20, s.24; 2016, c.37, s.64
Proof of copies of letters patent and grants issued under the Nova Scotia Grants Act
41Grants of land heretofore made under the Great Seal of Nova Scotia, prior to the erection and establishment of this Province, and registered in the office of the Secretary and Registrar pursuant to an Act passed in the twenty-sixth year of the Reign of King George the Third, entitled An Act for the registering of Letters Patent and Grants made under the Great Seal of the Province of Nova Scotia, of lands now situate within the limits of this Province, may be proved by certified or examined copies thereof, or of the material parts thereof, in like manner as hereinbefore provided in respect to grants passed under the Great Seal of the Province.
R.S., c.74, s.36
Costs respecting making of copies of public records
42The expense of any exemplification, or copy of any record, roll, grant, letters patent, surrender, escheat, inquisition, lease, licence, conveyance, document or writing, or any part of the same, or of any plat or plan given in evidence by virtue of this Act, may be charged and allowed in the taxation of costs, in whole or in part, by the taxing officer of the court wherein the suit may be pending, whose decision thereupon may be reviewed as in ordinary cases.
R.S., c.74, s.37
Admissibility of public records
43Any report, publication or statement on any matter of science, technology, geography, population, natural resources, engineering or other matter of fact or fact and opinion purporting to have been prepared by or under the authority of any department or branch of the Government of Canada or of the Province or of any other province is, in so far as relevant, admissible as evidence of the matters stated therein.
1960, c.29, s.3
PRIVILEGE
Investigative report
43.1An investigative report that is prepared for the dominant purpose of being submitted to a solicitor for advice with respect to, or use in, contemplated or pending litigation, or any part of an investigative report in which an opinion is expressed, regardless of the purpose for which that report was prepared, is privileged from disclosure and production in civil proceedings.
1987, c.19, s.1
Solicitor and client communication
43.2(1)Any privilege that exists in relation to any communication between a solicitor and client is not lost or waived because all or part of the communication is
(a) furnished or disclosed to the client’s auditor for the purpose of assisting the auditor in the performance of an audit, or
(b) referred to in the client’s financial statements and the notes with respect to those statements.
43.2(2)The fact that any communication between a solicitor and client is prepared or made with the intention that it will be furnished or disclosed to the client’s auditor for the purpose of assisting the auditor in the performance of an audit does not prevent the creation of, or give rise to the waiver of, a privilege in relation to that communication.
1987, c.19, s.1
Hospital committee
43.3(1)In this section
“hospital corporation” Repealed: 2002, c.1, s.5
“legal proceeding” means a proceeding in any court, including a proceeding for the imposition of punishment by fine, penalty or imprisonment to enforce an Act of the Legislature or a regulation made under that Act;(procédure légale)
“regional health authority” means a regional health authority as defined in the Regional Health Authorities Act;(régie régionale de la santé)
“witness” includes a person who, in connection with, or in the course of, a legal proceeding, is called upon to provide information, to answer, orally or in writing, a question or to produce a document, whether under oath or not.(témoin)
43.3(2)A witness, whether a party to a legal proceeding or not, is excused from
(a) providing any information as to any proceeding before a committee established by a regional health authority to conduct any study, research or program for the purpose of medical education or improvement in medical or hospital care or practice,
(b) producing any document made by or for a regional health authority or a committee established by the regional health authority, prepared for the purpose of being used in the course of, or arising out of, any study, research or program the dominant purpose of which is medical education or improvement in medical or hospital care or practice, and
(c) disclosing any written or verbal opinion that
(i) is provided to a regional health authority or to a committee referred to in this subsection when it is investigating an occurrence, and
(ii) is an opinion as to the standard of the medical or hospital care or practice that was provided by any person in the circumstances under investigation.
43.3(3)Subsection (2) does not apply to
(a) records maintained by regional health authorities as required by the Hospital Act or the Regional Health Authorities Act or the regulations under those Acts, or
(b) medical records maintained by attending physicians pertaining to a patient.
43.3(3.1)Paragraph (2)(c) does not restrict or displace any privilege that arises under section 43.1 or otherwise.
43.3(4)A committee referred to in subsection (2) does not include a medical advisory committee exercising its functions respecting surgical and other privileges of the medical staff.
43.3(5)Notwithstanding that a witness
(a) is or has been a member of,
(b) has participated in the activities of, or
(c) has prepared a document for or has provided information to,
a committee referred to in subsection (2), that witness is not, subject to subsection (2), excused from answering any question or producing any document that that witness is otherwise bound to answer or produce.
1987, c.19, s.1; 1999, c.38, s.1; 2002, c.1, s.5
TELEGRAMS
Telegraph message or despatch
44Where a party to an action, matter or proceeding in a court, desires to give in evidence on the trial or hearing any telegraph message or despatch not sent to, or in the possession of, the opposite party, he may, at least ten days before offering the same in evidence, give to the opposite party, his solicitor or attorney, notice of his intention to offer such telegraph message or despatch in evidence, together with a copy of such message or despatch; and if the Court is satisfied by affidavit or otherwise that such notice and copy have been given as aforesaid, and that the period of ten days is sufficient notice under the circumstances, such telegraph message or despatch shall, if otherwise admissible, be received and admitted as prima facie evidence of its having been dated, directed, written and signed by the person whose name appears therein as the sender thereof, and it shall in such case be presumed, until proved to the contrary, that the same was sent and signed by the person by whom it purports to have been sent and signed, and at the date, and from the place, and to the person mentioned therein respectively.
R.S., c.74, s.38
Secondary evidence, prima facie evidence, agreed upon meaning
45(1)If a party desires to give in evidence a telegraph message or despatch sent to the opposite party, or shown to be in his possession, and notice to produce the same has been given as in ordinary cases, and the same is not produced under the notice, such party may give secondary evidence thereof; and if such message or despatch is produced under the notice, it shall, if otherwise admissible, be received in evidence the same as an original document.
45(2)Evidence that any such message or despatch was delivered at a telegraph office, and received thereat for transmission shall be prima facie evidence that the same was transmitted in due course, and received by the person to whom it was addressed.
45(3)When any telegraph message or despatch is signed, addressed or written, or appears on its face to have been signed or addressed or written in whole or in part in figures or any number, word, name, phrase or sentence agreed upon or recognized by the sender and receiver of such message or despatch as meaning between them some other word, number, name, phrase or sentence, or as having any other than the ordinary or apparent meaning of such figure, number or word, such signature, address or writing shall, for the purposes of this and the last preceding two sections, be taken to be the word, number, name, phrase or sentence so agreed upon and recognized between the sender and receiver as aforesaid, and such message or despatch shall for all purposes be treated as though the same had been written, addressed and signed in full, according to the meaning agreed upon or recognized as aforesaid and so transmitted.
R.S., c.74, s.39
BANKERS’ BOOKS
Book or record in bank
46(1)Subject to the provisions of this section a copy of an entry in any book or record kept in a bank shall in all actions be received as prima facie evidence of such entry and of the matters, transactions and accounts therein recorded.
46(2)A copy of an entry in such book or record shall not be received in evidence under this section unless it is proved that the book or record was at the time of the making of the entry one of the ordinary books or records of the bank and that the entry was made in the usual and ordinary course of business, and that the book or record is in the custody or control of the bank and that such copy is a true copy thereof, which proof may be given by the manager or accountant of the bank and may be given orally or by affidavit.
46(3)An officer of a bank shall not in any legal proceeding to which the bank is not a party be compellable to produce any book or record the contents of which can be proved under this section, or to appear as a witness to prove the matters, transactions and accounts therein recorded unless by order of a court or judge made for special cause.
46(4)On the application of any party to an action a court or judge may order that such party be at liberty to inspect and take copies of any entries in the books or records of a bank for any of the purposes of such proceedings.
46(5)Notice of an application under subsection (4) shall be served upon the person whose account is to be inspected at least two clear days before the hearing of the application; if it is shown to the satisfaction of the court or judge that such service cannot be effected, then such notice shall be served upon the bank.
46(6)The costs of an application to a court or judge under or for the purposes of this section, and the costs of anything done or to be done under an order of a court or judge made under or for the purposes of this section, shall be in the discretion of the court or judge, who may order the same or any part thereof to be paid to any party by the bank, where the same has been occasioned by any default or delay on the part of the bank, and any such order against a bank may be enforced as if the bank were a party to the proceeding.
R.S., c.74, s.40
MICROFILMS
Microfilms
47(1)In this section
“person” includes(personne)
(a) the Government of Canada and of any province of Canada and any department, commission, board or branch of any such government,
(b) a corporation, and
(c) the heirs, executors, administrators or other legal representatives of a person;
“photographic film” includes any photographic plate, microphotographic film and photostatic negative, and “photograph” has a corresponding meaning.(pellicule photographique)
47(2)Where a bill of exchange, promissory note, cheque, receipt, instrument, agreement, document, plan or a record or book or entry therein kept or held by any person is photographed in the course of an established practice of such person of photographing objects of the same or a similar class in order to keep a permanent record of it, a print from the photographic film is admissible in evidence in all cases and for all purposes for which the object photographed would have been admissible.
47(3)Where a bill of exchange, promissory note, cheque, receipt, instrument, agreement or other executed or signed document was destroyed by the person or an employee of the person before the expiration of six years from
(a) the date when in the ordinary course of business either the object or the matter to which it related ceased to be treated as current by the person having custody or control of the object, or
(b) the date of receipt by the person having custody or control of the object of notice in writing of any claim in respect of the object or matter prior to the destruction of the object,
whichever is the later date, the court may refuse to admit in evidence under this section a print from a photograph film of the object.
47(4)Where the photographic print is tendered or made by a government or the Bank of Canada, subsection (3) does not apply.
47(5)Proof of compliance with the conditions prescribed by this section may be given by any person having knowledge of the facts either orally or by affidavit sworn before a notary public and unless the court otherwise orders, a notarial copy of any such affidavit is admissible in evidence in lieu of the original affidavit.
R.S., c.74, s.41; 1966, c.52, s.3; 1992, c.59, s.2
ELECTRONICALLY STORED
DOCUMENTS
Document copied and stored electronically
47.1(1)In this section and in section 47.2
“document” includes, unless the context requires otherwise, any record of information, however recorded or stored, whether in printed form, on film, by electronic means or otherwise;(document)
“person” includes(personne)
(a) the Government of Canada and of any province or territory of Canada and any department, commission, board or branch of any such government,
(b) a corporation, and
(c) the heirs, executors, administrators or other legal representatives of a person.
47.1(2)Where a document kept or held by a person is copied by a process of electronic imaging or similar process and is recorded or stored electronically in the course of an established practice in order to keep a permanent record of the document, a printout of the document generated by or produced from a computer record or other electronic medium is admissible in evidence in all cases and for all purposes for which the original document would have been admissible.
47.1(3)A printout described in subsection (2) is not admissible in evidence unless
(a) the original document was copied by a process of electronic imaging or similar process and was recorded or stored electronically in the course of an established practice in order to keep a permanent record of it,
(b) the original document was destroyed after being copied and recorded or stored in accordance with paragraph (a), and
(c) the printout is a true copy of the original document.
47.1(4)Proof of compliance with the requirements of this section may be given by any person who has knowledge, or who has informed himself or herself, of the facts, either orally or by affidavit sworn before a notary public, and unless the court otherwise orders, a notarial copy of any such affidavit is admissible in evidence in lieu of the original affidavit.
1996, c.52, s.1
Document created in electronic form and stored electronically
47.2(1)Where, in the normal course of business or affairs, a document that was created in electronic form by a person is recorded or stored electronically in order to keep a permanent record of the document, a printout of the document generated by or produced from a computer record or other electronic medium is admissible in evidence in all cases and for all purposes for which the document would have been admissible had it been created in a tangible form.
47.2(2)A printout described in subsection (1) is not admissible in evidence unless
(a) the document was recorded or stored electronically in the normal course of business or affairs, and
(b) the contents of the document being tendered are as originally recorded and stored and have not been altered.
47.2(3)Proof of compliance with the requirements of this section may be given by the author of the document or any other person who has knowledge, or who has informed himself or herself of the facts, either orally or by affidavit sworn before a notary public, and unless the court otherwise orders, a notarial copy of any such affidavit is admissible in evidence in lieu of the original affidavit.
1996, c.52, s.1
BOOKS OF ACCOUNT OF PERSON
DECEASED
Entries in books of accounts
48On the trial of an action, or of any matter or question, or upon an inquiry arising in any suit, action or other proceeding in a court, where the rights or liabilities of the estate of a deceased person are in question, entries in the books of accounts of such deceased person are, on proof of their being in the handwriting of the deceased, or of a clerk who is shown to the satisfaction of the court to be dead or incapable of testifying by reason of insanity or imbecility, admissible in evidence, and shall be taken as prima facie proof of the correctness of the statements contained in such entries, if the court is satisfied on view of the same or otherwise, that they were made in the ordinary course of business.
R.S., c.74, s.42
Record or entry of act, condition or event
49A record or entry of an act, condition or event made in the regular course of a business is, in so far as relevant, admissible as evidence of the matters stated therein if the court is satisfied as to its identity and that it was made at or near the time of the act, condition or event.
1960, c.29, s.4
Written report or finding of facts of expert
50(1)Subject to subsection (2), a written report or finding of facts prepared by an expert not being a party to the cause, nor an employee of a party, except for the purposes of making such report or finding, nor financially interested in the result of the controversy, and containing the conclusions resulting wholly or partly from information furnished by the cooperation of two or more persons acting for a common purpose, is, in so far as the same may be relevant, admissible when testified to by the person, or one of the persons, making such report or finding without calling as witnesses the persons furnishing the information, and without producing the books or other writings on which the report or finding is based, if, in the opinion of the court, no substantial injustice will be done the opposite party.
50(2)Such report or finding is not admissible unless a reasonable time before offering the same in evidence the party offering it has given notice to the adverse party of his intention to offer it in evidence together with a copy of the report or finding, or so much thereof as may relate to the controversy, and has also afforded the adverse party a reasonable opportunity to inspect and copy any records or other documents in the offering party’s possession or control, on which the report or finding was based, and also the names of all persons furnishing facts upon which the report or finding was based, except that it may be admitted if the court finds that no substantial injustice would result from the failure to give such notice.
50(3)Any person who has furnished any information on which such report or finding is based may be called as a witness and cross-examined by the adverse party, but the fact that his testimony is not obtainable does not render the report or finding inadmissible, unless the court finds that substantial injustice would be done to the adverse party by its admission.
1960, c.29, s.4
REGISTER OF OR DECLARATION
RESPECTING SHIPS
Register of or declaration respecting ships
51Every register of or declaration made, in respect of any British or Canadian ship, in pursuance of any of the Acts relating to the registry of British or Canadian ships may be proved in any court either by the production of the original, or by an examined copy thereof, or by a copy thereof purporting to be certified under the hand of the person having charge of the original; and every register or copy of register, and also every certificate of registry granted under any of the Acts relating to the registry of British or Canadian vessels and purporting to be signed as required by law, shall be received in evidence in any court as presumptive proof of all the matters contained or recited in such register, when the register or such copy thereof as aforesaid is produced, and of all matters contained or recited in or endorsed upon such certificate of registry, when the said certificate is produced.
R.S., c.74, s.43
PROOF OF BIRTHS,
DEATHS AND MARRIAGES
Proof of births, deaths and marriages
52(1)A copy of the record of any marriage or certificate registered under chapter 71 of the Consolidated Statutes, 1876, or any Act previous thereto, certified by the clerk of the peace of the county in which the same is registered, and a copy of any marriage certificate registered under chapter 5 of the Acts of 50 Victoria (1886) or any Act in amendment thereof, or under chapter 54 of the Consolidated Statutes, 1903, Respecting Registration of Births, Deaths and Marriages, certified by the Division Registrar or Provincial Registrar or the Deputy of the Provincial Registrar, under the last mentioned Act, or by the official having the legal custody of the record of such marriage, and a copy of any marriage certificate registered under the Public Health Act, 1918, or any regulation made thereunder, or under any amending Act concerning Vital Statistics in the Province certified by the Registrar General, or an officer deputed by him for that purpose, shall be prima facie evidence in any court of the facts therein stated without proof of appointment or signature.
52(2)A copy of the record of any birth or death registered under the provisions of chapter 54 of the Consolidated Statutes, 1903, Respecting Registration of Births, Deaths and Marriages or The Public Health Act, 1918, or chapter 131 of the Revised Statutes, 1927, or under any amending Act concerning vital statistics in the Province certified by the Registrar General or Division Registrar or by the official having the legal custody of the said record or any report published under section 20 of said chapter shall be prima facie evidence in any court of law in this Province of the facts therein stated.
52(3)The production of a certificate purporting to be signed by an authority authorized in that behalf by the National Defence Act, chapter N-4 of the Revised Statutes of Canada, 1970, or by regulations made thereunder, stating that the person named in the certificate died, or was deemed to have died, on a date set forth therein, is prima facie proof for any purpose to which the authority of the Legislature of New Brunswick extends, that the person so named died on that date, and also the office, authority and signature of the person signing the certificate, without any proof of his appointment, authority or signature.
52(4)The production of a certificate purporting to be signed by the officer in charge of records of the naval, military or air forces of Her Majesty raised by Canada, stating that the person named in the certificate was a member of any of those forces and was serving on active service during the period between the dates set forth therein, is prima facie proof for any purpose to which the authority of the Legislature of New Brunswick extends that the person so named was on active service during that period, and also of the office, authority and signature of the person signing the certificate, without any proof of his appointment, authority or signature.
R.S., c.74, s.44; 1958, c.34, s.1; 1961-62, c.18, s.1
FOREIGN LETTERS PATENT OR
CERTIFICATE OF INCORPORATION
Copies of foreign letters patent or certificate of incorporation
53A certificate purporting to be that of a notary public, under his notarial seal of office, to the effect that the document to which it is attached is a true copy or transcript of any letters patent, or where incorporation is obtained by the filing in the proper office of a certificate of incorporation, or of any other document purporting to incorporate any joint stock company, society or association under any law of the United Kingdom of Great Britain and Northern Ireland, or of Canada, or of any province of Canada, or of any British Dominion or Colony, or of any State of the United States of America, that it is a true copy of a certificate of incorporation duly filed in the proper office, or that the document to which it is attached is a true copy or transcript of a certificate purporting to be that of the Secretary of State of any State in the United States of America, where such company, society or association is incorporated, under what purports to be the seal of such Secretary of State, and whether such letters patent, certificate or incorporation, or other document is made or issued before or after the passing of this Act, and upon it being further certified by such notary public as aforesaid, that he has himself compared such copy of letters patent, certificate of incorporation or other document with the original, and that the same is a true copy thereof, such certificate is prima facie evidence that the letters patent, certificate of incorporation or other document so certified, is a true copy of such letters patent, certificate of incorporation or other document, respectively, and such certified copy may be given in evidence in all courts in this Province, and in all proceedings whatsoever over which the Legislature has legislative authority; if, in all causes in The Court of Queen’s Bench of New Brunswick, a copy of such certified copy of letters patent, certificate of incorporation or other document, and of the certificate of such notary public, is served upon the attorney of the opposite party, at least ten days before the same is offered in evidence, with a notice of the intention to offer such copy in evidence upon the trial or hearing of any cause in the said Court.
R.S., c.74, s.45; 1979, c.41, s.46
Prima facie evidence of incorporation
54The copy of letters patent, certificate of incorporation, or other document mentioned in the foregoing section, and certified to as aforesaid, is prima facie evidence of the due incorporation of the company, society, or association mentioned therein, and of its right to sue and be sued by its corporate name therein mentioned.
R.S., c.74, s.46
Obtaining incorporation in place where document issued
55When a copy of letters patent or a copy of a certificate of incorporation is offered in evidence as provided by sections 53 and 54, it is not necessary to prove whether in the place where such letters patent or certificate of incorporation was issued, incorporation is obtained by letters patent or by certificate of incorporation, and the copy of letters patent, certificate of incorporation or other document as provided for and mentioned in the said section are prima facie evidence that incorporation is obtained, in the place where the same is issued, by letters patent if letters patent are offered in evidence, or by certificate of incorporation if a certificate of incorporation is offered in evidence.
R.S., c.74, s.47
Interpretation of sections 53, 54 and 55
56The provisions of sections 53, 54 and 55 shall be deemed to be in addition to, and not in derogation of, any power of proving documents given by any existing statute, or existing at common law.
R.S., c.74, s.48
CONTRACT BY
FOREIGN CORPORATION
Contract by foreign corporation
57Upon trial of a cause before any court in this Province, wherein it is necessary to prove a contract or engagement entered into by a foreign corporation doing business in this Province, or which contract or engagement has been entered into in this Province, it is only necessary for the party seeking to prove the contract or engagement, or to put the same in evidence before the court, to prove that such contract or engagement has been duly signed or issued by the accredited agent or officer of such foreign corporation in this Province; and upon such proof having been given, the court before which the trial is had shall admit the same in evidence, and the same shall be considered as duly proved without any other evidence of the execution thereof by such foreign corporation, body politic or corporate, any law, usage or custom to the contrary notwithstanding.
R.S., c.74, s.49
BANKRUPTCY PROCEEDINGS
IN ENGLAND
Bankruptcy proceedings in England
58When on the trial of a cause or other proceeding in a court in this Province it is necessary by reason of bankruptcy proceedings in England to prove the petitioning creditor’s debt, fiat of adjudication, appointment of official assignee, election and confirmation of trade assignees, or any other proceeding had before the commissioner of bankrupts in England, the production of office copies of all or any such proceedings, purporting to be under the hands of the commissioner and registrar, and also professing to be under the seal of the Court of Bankruptcy for the district in which such bankrupt has been declared and adjudged bankrupt, shall in all cases be held and deemed to be sufficient evidence of the facts recited in such documents without any further proof of them.
R.S., c.74, s.50
The London Gazette, as evidence of
59The London Gazette, purporting to be published by Royal authority, shall in all cases be received in evidence as sufficient proof of the proceedings in bankruptcy contained in such Gazette.
R.S., c.74, s.51
INSTRUMENTS REGISTERED IN
SCOTLAND
Instruments registered in Scotland
60When on the trial of a cause or other proceeding in a court in this Province it is necessary to prove any deed, last will or testament, or other instrument presented for registration, and registered in the Sheriff Court books of any county in Scotland, a copy of such deed, last will or testament, or other instrument under the hand of the deputy sheriff, clerk of the county or other officer having the custody of the court books, and the seal of the sheriff, shall in all cases be admitted in evidence in every case in which the original deed, last will or testament, or other instrument could have been received in evidence, if such copy is authenticated by affidavit that the same has been collated or compared with the original document, and is a true and correct copy thereof, and also that the seal affixed to such copy is the seal of the Sheriff Court, having the custody of the said original document.
R.S., c.74, s.52
QUEBEC NOTARIAL DOCUMENTS
Quebec notarial documents
61Any document purporting to be a copy of a notarial act or instrument, made, filed or enregistered in the Province of Quebec, and to be certified by a notary or prothonotary to be a true copy of the original thereby certified to be in his possession as such notary or prothonotary, shall be received in evidence in all courts as prima facie evidence of the original, and of the due execution thereof as appears by such copy, and if such document is a certificate of a marriage in Quebec, such certified copy is prima facie evidence of such marriage; but before such certified copy is allowed in evidence, at least ten days notice in writing of the intention to offer the same in evidence, accompanied by a copy of such certified copy, shall be given to the adverse party, and the due service of which notice and copy being proved by affidavit or otherwise to the satisfaction of the court.
R.S., c.74, s.53
STATUTES AND PUBLIC DOCUMENTS
Statutes and public documents
62In any proceeding in respect of which the Legislature has jurisdiction in this behalf, whenever it is necessary or expedient to prove, or give in evidence, any Statute or Ordinance of Canada or of this Province, or any other province, or of any territory in Canada, whether such Statute or Ordinance was passed before or after the passing of the Constitution Act, 1867, prima facie evidence of such Statute or Ordinance may be given in all courts of this Province, and in all proceedings whatsoever, over which the Legislature has legislative authority, in all or any of the following modes:
(a) by the production of what purports to be a copy of the official Gazette for Canada, or the province or territory, purporting to contain a copy of such Statute or Ordinance;
(b) by the production of what purports to be a copy of such Statute or Ordinance, purporting to be published or printed by or by the authority of the official or Queen’s Printer for Canada or the province or territory.
R.S., c.74, s.54; 1982, c.3, s.23
PROCLAMATIONS, ORDERS,
REGULATIONS AND APPOINTMENTS
BY A PROVINCIAL GOVERNMENT
Proclamations, orders, regulations and appointments by a provincial government
63(1)Prima facie evidence of any proclamation, order, regulation or appointment made or issued by a Lieutenant-Governor or a Lieutenant-Governor in Council of this or any other Province of Canada, or of any Territory of Canada, or other Chief Executive Officer or Administrator for the time being of the Government of the Province or Territory, or by or under the authority of any member of the Executive Council, being the head of any department of the Government of the Province or Territory, may be given in any court or tribunal, and in all legal proceedings in respect of which the Legislature has authority to enact this provision, in any of the following modes:
(a) by the production of a copy of the Official Gazette for the Province or Territory, purporting to contain a notice of such proclamation, order, regulation or appointment;
(b) by the production of a copy of such proclamation, order, regulation or appointment purporting to be published or printed by or by authority of the Queen’s Printer, or the Government Printer for the Province or Territory; or
(c) by the production of a copy or extract of such proclamation, order, regulation or appointment, certified to be a true copy by the clerk or assistant or acting clerk of the Executive Council, or by the head of any department of the Provincial Government or Territorial Government, or by his deputy or acting deputy, as the case may be.
63(2)All proclamations made by the Lieutenant-Governor proclaiming an enactment or any provision thereof into force shall be judicially noticed by all courts and judges in the Province.
R.S., c.74, s.55; 1955, c.45, s.1; 2005, c.Q-3.5, s.16
PROCLAMATION BY THE GOVERNMENT OF
CANADA
Prima facie evidence
64Prima facie evidence of any proclamation, order, regulation or appointment, made or issued before or after the passing of this Act by the Governor-General, or by the Governor-General in Council, or other Chief Executive Officer, or Administrator for the time being of the Government of Canada, or by or under the authority of any Minister or head of any department of the Government of Canada, may be given in all courts in this Province, and in all proceedings over which the Legislature has legislative authority, in all or any of the following modes:
(a) by production of a copy of the Canada Gazette, purporting to contain a notice of any such proclamation, order, regulation or appointment;
(b) by the production of a copy of such proclamation, order, regulation or appointment, purporting to be published or printed by or by authority of the Queen’s Printer for Canada;
(c) by the production, in the case of any proclamation, order or regulation issued by the Governor-General or by the Governor-General in Council or other Chief Executive Officer or Administrator, as aforesaid, of a copy or extract purporting to be certified to be a true copy thereof by the clerk, or assistant or acting clerk of the Queen’s Privy Council for Canada; or
(d) by the production, and in the case of any proclamation, order, regulation or appointment, made or issued by or under the authority of any such Minister or head of a department, of a copy or extract, purporting to be certified as true by the Minister, or by his deputy or acting deputy, or by the secretary or acting secretary of the department over which he presides.
R.S., c.74, s.56; 2005, c.Q-3.5, s.16
Handwriting or official position, forma
65No proof is required of the handwriting or official position of any person certifying, in pursuance of this Act, to the truth of any copy of, or extract from any proclamation, order, regulation or appointment, and any such copy or extract may be in print or in writing, or partly in print and partly in writing.
R.S., c.74, s.57
Interpretation of sections 63, 64, and 65
66The provisions of sections 63, 64 and 65 shall be deemed to be in addition to, and not in derogation of, any powers of proving documents given by any existing statute or existing at common law.
R.S., c.74, s.58
OFFICIAL NOTICES IN THE
CANADA GAZETTE, OR ROYAL GAZETTE
Official notices in the Canada Gazette, or Royal Gazette
67All copies of official and other notices, advertisements and documents published or printed in the Canada Gazette or in The Royal Gazette, and all matters contained in the appendix to a volume of the Acts of the Legislature purporting to be published or printed by or by the authority of the Queen’s Printer, are prima facie evidence of the originals, and of the contents thereof.
R.S., c.74, s.59; 2005, c.Q-3.5, s.16
DOCUMENTS IN POSSESSION OF
OFFICERS OF EXECUTIVE COUNCIL
Documents in possession of officers of Executive Council
68Where documents are in the official possession, custody or power of a Member of the Executive Council or the head of a department of the public service of this Province, if the deputy head or other officer of the department has the documents in his personal possession, and is called as a witness, he is entitled, acting herein by the direction and on behalf of the Member of the Executive Council or head of the department, to object to produce the documents on the ground that they are privileged; and such objection may be taken by him in the same manner, and shall have the same effect, as if the Member of the Executive Council or head of the department were personally present and made the objection.
R.S., c.74, s.60
CANADIAN OR PROVINCIAL
GOVERNMENT ACCOUNT BOOKS
Canadian or provincial government account books
69In every court or tribunal, and in all legal proceedings in respect of which the Legislature has authority so to enact, a copy of any entry in any book of account kept in any department of the Government of Canada or of this Province shall be received as prima facie evidence of such entry, and of the matters, transactions and accounts therein recorded, if it is proved by the oath or affidavit of an officer of such department that such book was, at the time of the making of the entry, one of the ordinary books kept in such department, that the entry was apparently, and as the deponent believes, made in the usual and ordinary course of business of such department, and that such copy is a true copy thereof.
R.S., c.74, s.61
JUDICIAL NOTICE
Judicial notice
70(1)Judicial notice shall be taken of
(a) all Acts of the Imperial Parliament;
(b) all Acts of the Parliament of Canada;
(c) all ordinances made by the Governor-General in Council of Canada, or the Lieutenant-Governor in Council of any province, colony or territory that or some portion of which, forms part of Canada;
(d) all Acts of the Legislature of any such province, colony, or territory, whether enacted before or after the passing of the Constitution Act, 1867; and
(e) all statutes and Acts of the Legislature or governing body of any dominion, commonwealth, state, province, colony, territory, possession or protectorate within the British Empire.
70(2)In this section “Imperial Parliament” means the Parliament of the United Kingdom of Great Britain and Northern Ireland, as at present constituted, or any former kingdom that included England, whether known as the United Kingdom of Great Britain and Ireland or otherwise.
R.S., c.74, s.62; 1982, c.3, s.23
STATE DOCUMENTS
Definitions
71In this section and sections 72 to 74 inclusive
“British possession” means any dominion of Her Majesty heretofore or now existing or hereafter constituted exclusive of the United Kingdom of Great Britain and Northern Ireland and of Canada;(possession britannique)
“dominion” includes kingdom, empire, republic, commonwealth, state, province, territory, colony, possession, and protectorate heretofore or now existing or hereafter constituted; and, where parts of a dominion are under both a central and a local legislature, includes both all parts under the central legislature and each part under a local legislature;(dominion)
“federal” as applied to state documents means of or pertaining to Canada;(fédéral)
“foreign state” includes every dominion other than the United Kingdom of Great Britain and Northern Ireland, Canada, and a British possession;(État étranger)
“Imperial” as applied to state documents, means of or pertaining to the United Kingdom of Great Britain and Northern Ireland, as at present constituted, and any former kingdom that included England, whether known as the United Kingdom of Great Britain and Ireland or otherwise;(impérial)
“legislature” includes any legislative body or authority competent to make laws for a dominion;(législature)
“provincial” as applied to state documents, means of or pertaining to a province or territory within Canada;(provincial)
“Queen’s Printer” includes government printer or other official printer;(Imprimeur de la Reine)
“state document” includes(document d’État)
(a) any Act, ordinance or statute enacted or purporting to have been enacted by a legislature,
(b) any order, regulation, notice, appointment, warrant, licence, certificate, letters patent, official record, rule of court or other instrument issued or made or purporting to have been issued or made under the authority of any Act, ordinance or statute so enacted or purporting to have been enacted,
(c) all judgments, decrees, orders and other judicial proceedings of any Court of Justice wherever made, and
(d) any official gazette, journal, proclamation, treaty, or other public document or act of state issued or made.
R.S., c.74, s.63; 1955, c.45, s.2; 1987, c.6, s.24
Imperial state document
72The existence and the whole or any part of the contents of an Imperial state document may be proved in any of the following modes:
(a) in the same manner as the same may from time to time be provable in any court in England;
(b) by the production of a copy of the Canada Gazette or a volume of the Acts of the Parliament of Canada purporting to contain a copy of or an extract from the same or a notice thereof;
(c) by the production of a copy thereof or an extract therefrom purporting to be printed by, or for, or by authority of, the Queen’s Printer for Canada or for any Province of Canada;
(d) by the production of a copy thereof purporting to be certified as a true copy by the minister or head, or by the deputy minister or deputy head, of any department of the Imperial Government or purporting to be an exemplification thereof under the Imperial Great Seal;
(e) by the production of a copy thereof or an extract therefrom purporting to be certified as a true copy or extract by the custodian of the original document or the public records from which the copy or extract purports to be made.
R.S., c.74, s.64; 1984, c.C-5.1, s.48
Federal or provincial state document
73The existence and the whole or any part of the contents of any federal or provincial state document may be proved in any of the following modes:
(a) by the production of a copy of the Canada Gazette or of the official gazette for any province or of a volume of the Acts of the Parliament of Canada or of the legislature of any province purporting to contain a copy of the state document or an extract therefrom or a notice thereof;
(b) by the production of a copy thereof or an extract therefrom purporting to be printed by, or for, or by authority of, the Queen’s Printer for Canada or for any province;
(c) by the production of a copy thereof or an extract therefrom, whether printed or not, purporting to be certified as a true copy or extract by the minister or head or the deputy minister or deputy head of any department of government of Canada or of any province, or by the custodian of the original document or the public records from which the copy or extract purports to be made, or purporting to be an exemplification of the state document under the Great Seal of Canada or of any province.
R.S., c.74, s.65; 1984, c.C-5.1, s.48
State document of British possession or foreign state
74The existence and the whole or any part of the contents of any state document of a British possession or foreign state may be proved in any of the following modes:
(a) by the production of a copy thereof or an extract therefrom, purporting to be printed by, or for, or by the authority of, the parliament or legislative body, government, Queen’s Printer or other official printer of the British possession or of the foreign state;
(b) by the production of a copy thereof or an extract therefrom, whether printed or not, purporting to be certified as a true copy or extract by the minister or head, or the deputy minister or deputy head, of any department of government of the British possession or of the foreign state, or by the custodian of the original document or the public records from which the copy or extract purports to be made, or purporting to be an exemplification of the state document under the Great Seal or other state seal of the British possession or of the foreign state.
R.S., c.74, s.66; 1984, c.C-5.1, s.48
Proof of signature, position or seal
75It is not necessary to prove the signature or official position of the person printing or certifying any copy or extract admissible in evidence under section 72, 73 or 74 or to prove the Great Seal or other state seal affixed thereto or to prove that the original document or the public records from which the copy or extract purports to be made in fact existed, or were deposited or kept in the custody of the person so certifying.
R.S., c.74, s.67
CONSTRUCTION BY JUDGE OF BRITISH,
COLONIAL OR FOREIGN STATUTES
Construction by judge of British, Colonial or foreign statutes
76(1)Where upon the trial of an action a question arises as to the true meaning or construction of a Statute, Act or Ordinance of the Imperial Parliament, the Parliament of Canada or the Legislature of any Province, State or Territory within the British Dominions, or within the United States of America, the judge before whom such trial is pending shall decide such question in like manner as if the question had arisen under an Act of the Legislature of this Province.
76(2)When any such question so arises in respect to any Statute, Act or Ordinance of any Legislature, other than those referred to in subsection (1), it shall not be deemed misdirection in the judge to express his opinion to the jury upon the meaning or construction of such Statute, Act or Ordinance, in its bearing upon or application to the issue or matter before such judge for trial; or the judge may review and deal with the matter in like manner as if the question had arisen under an Act of the Legislature of this Province.
76(3)No evidence in relation to the construction or meaning of any foreign, Canadian or colonial law, that would be heretofore admissible, shall be excluded by reason hereof.
R.S., c.74, s.68
JUDICIAL DOCUMENTS
Judicial documents
77(1)All judgments, decrees, orders, and other judicial proceedings of any court of justice in the United Kingdom of Great Britain and Northern Ireland as at present constituted or any former kingdom that included England whether known as the United Kingdom of Great Britain and Ireland or otherwise, or in any present, future or pre-existing foreign state, or in Canada or in any Province of Canada, or in any present, past or future British colony, and all affidavits, pleadings and other documents whether legal or otherwise, filed or deposited in any such court, may be proved in any court either by examined copies or by copies authenticated as hereinafter mentioned that is to say, the authenticated copy being admissible in evidence must either
(a) be sealed with the seal of said British, foreign, Canadian, provincial or colonial court making, issuing or otherwise giving existence to any such judgment, decree, order or other judicial proceeding, or in which any such affidavit, pleading or other document is filed or deposited; or
(b) in the event of said court having no seal, be signed by the judge or, in the event of there being more than one judge, by any one of the judges of the court, and such judge shall attach to his signature a statement in writing on or attached to said copy, that the court whereof he is a judge has no seal.
77(2)If any of the aforesaid authenticated copies purport to be sealed or signed as hereinbefore respectively directed, the same shall respectively be admitted in evidence in every case in which the original document could have been received in evidence without proof of the seal, where a seal is attached, or of the truth of the statement attached thereto or thereon where no seal is attached, and without proof of the signature or the judicial character of the person purporting to have signed the statement where no seal is attached.
R.S., c.74, s.69
OATHS, AFFIDAVITS, AFFIRMATIONS AND
STATUTORY DECLARATIONS
Oaths, affidavits, affirmations and statutory declarations
78(1)An oath, affidavit, affirmation or statutory declaration administered, sworn, affirmed or made outside New Brunswick before,
(a) a judge,
(b) a magistrate,
(c) an officer of a court of justice,
(d) a commissioner for taking affidavits or other competent authority of the like nature,
(e) a notary public,
(f) the head of a city, town, village, township or other municipality,
(g) an officer of any of Her Majesty’s diplomatic or consular services, including an ambassador, envoy, minister, charge d’affaires, counsellor, secretary, attache, consul-general, consul, vice-consul, pro-consul, consular agent, acting consul-general, acting consul, acting vice-consul and acting consular agent,
(h) an officer of the Canadian diplomatic, consular or representative services, including, in addition to the diplomatic and consular officers mentioned in paragraph (g), a high commissioner, permanent delegate, acting high commissioner, acting permanent delegate, counsellor and secretary, or
(i) a Canadian Government Trade Commissioner or an Assistant Canadian Government Trade Commissioner,
exercising his functions or having jurisdiction or authority as such in the place in which it is administered, sworn, affirmed or made, is as valid and effectual to all intents and purposes as if it had been duly administered, sworn, affirmed or made within New Brunswick before a commissioner for taking affidavits within New Brunswick.
78(2)An oath, affidavit, affirmation or statutory declaration administered, sworn, affirmed or made outside New Brunswick before a notary public for New Brunswick or before a commissioner for taking affidavits within New Brunswick is as valid and effectual to all intents and purposes as if it had been duly administered, sworn, affirmed or made within New Brunswick before a commissioner for taking affidavits within New Brunswick.
78(3)A document that purports to be signed by a person mentioned in subsection (1) or (2) in testimony of an oath, affidavit, affirmation or statutory declaration having been administered, sworn, affirmed or made before him, and on which his office is shown below his signature, and
(a) in the case of a notary public, that purports to have impressed thereon or attached thereto his official seal,
(b) in the case of a person mentioned in paragraph (1)(f), that purports to have impressed thereon or attached thereto the seal of the municipality,
(c) in the case of a person mentioned in paragraph (1)(g), (h) or (i), that purports to have impressed thereon or attached thereto his seal or the seal or stamp of his office or of the office to which he is attached,
is admissible in evidence without proof of his signature or of his office or official character or of the seal or stamp and without proof that he was exercising his functions or had jurisdiction or authority in the place in which the oath, affidavit, affirmation or statutory declaration was administered, sworn, affirmed or made.
1958, c.34, s.2
REGISTERED DECREES OF BRITISH,
CANADIAN AND NEW BRUNSWICK COURTS OF
RECORD
Registered decrees of British, Canadian and New Brunswick Courts of Record
79A copy of any decree, decretal or other order, duly authenticated, certified, qualified for registry and registered under the Registry Act, or a copy of the registry thereof, certified by the registrar of deeds for the county in which the same is registered, may be put in evidence by a party in any action in any court, and shall be received as evidence of such decree, decretal or other order and of the contents thereof.
R.S., c.74, s.70
REGISTERED INSTRUMENT
OTHER THAN WILL
Copy of instrument as evidence
80Where a party is desirous of giving evidence in a court of an instrument other than a will, which has been duly registered and is relevant to the matter in question, he may produce in evidence a copy of the registry of such instrument certified by the registrar of deeds for the county where the same is registered, which copy shall, in the absence of the original instrument, be received and allowed as evidence of the contents thereof, but before any such copy is allowed it shall appear to the court by affidavit that such original is not under the control of the party, and that he does not know where the same may be found, and at least ten days notice in writing shall be given to the adverse party, his attorney or agent, of the intention to offer the same, such notice to be accompanied by a copy of such certified copy and of the affidavit, the due service thereof being also proved by affidavit to the satisfaction of the court.
R.S., c.74, s.71
Party out of the Province
81Where a party, desirous of giving in evidence a certified copy of an instrument registered in any registry office in the Province, resides out of the Province, or at the time of the making of the affidavit is without the Province, his agent in the Province or attorney in the suit, may make an affidavit of the non-residence of such person, and that he, the agent or attorney, as the case may be, has not the possession of the original instrument and does not know where the same is or may be found, and that he has reason to believe that such person has not the original instrument in his possession, and does not know where the same is or may be found, and that the person whose agent or attorney he is has not gone without the Province for the purpose of avoiding the making of such affidavit, and on service upon the adverse party, or his attorney or agent, of the copies of affidavit and notice, and upon the affidavit of such service, as required by section 80, such certified copy shall be received in evidence as fully and effectually as if the party had himself made the affidavit and given the notice required by section 80.
R.S., c.74, s.72
REGISTERED WILL
Registered will or copy as evidence, costs
82(1)When a party is desirous of giving in evidence in any court a will duly admitted to probate, or a copy that has been duly registered and is relevant to the matter in question, he may produce in evidence a copy of such registry, certified by the registrar of deeds for the county where the same is registered, which copy shall be received and allowed as evidence of the contents of such will and prima facie of its validity and due execution, but before any such copy is allowed in evidence, at least ten days notice in writing shall be given to the adverse party, or the attorney or agent of such adverse party, of the intention to offer the same in evidence, such notice to be accompanied by a copy of such certified copy, the due service thereof being proved by affidavit or otherwise to the satisfaction of the court.
82(2)The costs of the certified copies provided for by this section and sections 80 and 81 together with the costs of the proceedings therewith connected, shall be taxed and allowed to the party procuring such copies, in case costs are awarded to him against the other party in such suit or proceeding.
R.S., c.74, s.73
Application of sections 80, 81 and 82 to Her Majesty
83The provisions of sections 80, 81, and 82 apply to actions or proceedings by or on behalf of Her Majesty, and the affidavit of the loss of the conveyance or instrument required, may be made by the attorney or other officer acting on behalf of Her Majesty.
R.S., c.74, s.74
REGISTERED INSTRUMENTS - FURTHER
PROVISIONS RESPECTING
Certified copies
84No certified copy of the registry of any instrument, memorial or conveyance shall be received in evidence, otherwise than is provided by this Act or by the Registry Act, unless by the consent of parties, or unless it appears to the court at which the trial is had that the original instrument or, if there are duplicate instruments, one of such duplicate originals is in the possession of the adverse party, and not in the possession of the party offering such evidence, and that due notice has been given to produce the same.
R.S., c.74, s.75
Notices of sale
85(1)Any notice of sale under a power contained in a mortgage, duly registered or filed under the provisions of the Registry Act with the certificate of proof and affidavit endorsed thereon, or attached thereto, with the certificate of the registrar thereon, as required and provided by the said Act or a copy of the registry thereof, if such notice is registered under the provisions of said Act, duly certified by the registrar, shall on production without further proof either of the signature to the notice or to the certificate of the proof or of the signature of the registrar, be received in all courts as prima facie evidence of the signing of the said notice by the person or persons purporting to have signed the same, or of the execution of such notice by a corporation as the case may be, and of the giving or publication of said notice, as set forth in such affidavit, but where a certified copy is offered, or intended to be given in evidence, notice thereof, as required by section 80 shall first be given, with an affidavit either that the original notice or instrument is not in the possession of the person offering the same, his agent or attorney, and that he does not know where the same is to be found, or that the same is on file in the registry office of the county where the lands lie.
85(2)Where such notice of sale has been executed under a power of attorney, it is necessary to prove the execution and the due registry or filing of such power of attorney, and such proof may be given by production of a copy of the registry of such power of attorney, duly certified by the registrar, or by the production of the original with a certificate of the registry or filing thereof by the registrar.
85(3)In case of a certified copy of the registry of such power of attorney the like notice shall be given of intention to offer the same in evidence as is required in the case of a certified copy of the notice of sale.
85(4)The signature of the registrar to any certificate mentioned in this section need not be proved.
R.S., c.74, s.76
PRE-PERSONAL PROPERTY
SECURITY ACT
CHATTEL SECURITY DOCUMENTS
1993, c.36, s.3
Pre-Personal Property Security Act chattel security documents
86A copy of any writing registered under the Assignment of Book Debts Act, the Bills of Sale Act, the Conditional Sales Act, the Corporation Securities Registration Act or the Forest Products Loans Act before the repeal of those Acts, certified by the person in whose office the same is filed as a true copy, is receivable as evidence and is, in the absence of evidence to the contrary, proof of the execution and registration of the original and of all matters of which the original would be evidence.
R.S., c.74, s.77; 1993, c.36, s.3
DOCUMENTS FILED IN
REGISTRY OFFICE
Documents filed in Registry Office
87Where any document is authorized or required by law to be filed in the office of any registrar of deeds, a writing purporting to be a true copy of such document, and to be certified by such registrar under his hand as having been filed in his office, and to be a true copy of the document so filed is, in all courts, evidence of the filing of such document; and if such certificate certifies that such document was filed at any time, or on any day, it is evidence that the same was filed on the day or at the time so specified.
R.S., c.74, s.78
BY-LAWS OF MUNICIPALITIES AND RURAL
COMMUNITIES
2005, c.7, s.28
Copy of by-law, rule or regulation
88A copy of a by-law, rule or regulation of Sessions made by the Sessions previous to the incorporation of a county, and a copy of a by-law, rule or regulation enacted by the council of a municipality or a rural community council, certified by the Minister of Environment and Local Government or clerk of the municipality or rural community, as the case may be, to have been compared with the original and to be a true copy, is without proof of the official character of the Minister or clerk, or of his or her handwriting, prima facie evidence in all courts of the passage and existence of the by-law, rule or regulation, and is also, if the certificate states the date on which the by-law, rule or regulation was passed, as shown by the original record, prima facie evidence that the by-law, rule or regulation was passed on the date certified.
R.S., c.74, s.79; 1966, c.52, s.4; 1986, c.8, s.40; 1989, c.55, s.30; 1992, c.2, s.20; 1998, c.41, s.52; 2000, c.26, s.110; 2005, c.7, s.28; 2006, c.16, s.63; 2012, c.39, s.65
Copy of record book
89A copy of the record book required by the Counties Act, chapter 44 of the Revised Statutes, 1952, to be kept by the secretary of the county, or an extract therefrom, certified by the Minister of Environment and Local Government to be a true copy of such record book, or extract therefrom, is prima facie evidence in all courts of the contents of such record book, or portion thereof, so certified, and that the book containing such entry was duly signed by the warden or chairman and secretary as provided by such Act.
R.S., c.74, s.80; 1966, c.52, s.5; 1986, c.8, s.40; 1989, c.55, s.30; 1992, c.2, s.20; 1998, c.41, s.52; 2000, c.26, s.110; 2006, c.16, s.63; 2012, c.39, s.65
Proof of appointment of parish or county officer
90(1)When on the trial of any suit or complaint in any court it is necessary to prove the appointment of a parish or county officer, a certificate under the hand of the Minister of Environment and Local Government, stating the appointment, and the time and manner thereof, of any such parish or county officer, is sufficient proof of the appointment of such officer.
90(2)If any such certificate purports to be signed as aforesaid, the same shall be admitted in evidence without any proof of the signature or official character of the Minister of Environment and Local Government.
R.S., c.74, s.81; 1966, c.52, s.5; 1986, c.8, s.40; 1989, c.55, s.30; 1992, c.2, s.20; 1998, c.41, s.52; 2000, c.26, s.110; 2006, c.16, s.63; 2012, c.39, s.65
SEAL OF MAYOR
Seal of Mayor
91Where it is necessary to authenticate any act done by the mayor of a municipality or rural community under the corporate seal of the municipality or rural community, to be used as evidence in any court, the seal of the mayor is sufficient authentication of the act, unless the act is a corporate act.
R.S., c.74, s.82; 2005, c.7, s.28
N.B. This Act is consolidated to December 16, 2016.