Acts and Regulations

L-2 - Legal Aid Act

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Document at 9 September 2015
CHAPTER L-2
Legal Aid Act
I
1993, c.21, s.1
Definitions
1In this Part
“area” means a region of New Brunswick designated in the regulations;(région)
“area committee” means an area legal aid committee appointed under section 5;(comité régional)
“area director” means an area legal aid director or an acting area legal aid director appointed under section 4;(directeur régional)
“Barristers’ Society” Repealed: 1987, c.6, s.51
“barrister” or “solicitor” means a member of the Law Society of New Brunswick entitled to practise law in the courts of New Brunswick;(avocat) ou (solicitor)
“Law Society” means the Law Society of New Brunswick;(Barreau)
“legal aid” means professional services provided under this Part and the regulations;(aide juridique)
“Minister” means the Minister of Justice and includes any person designated by the Minister to act on the Minister’s behalf;(Ministre)
“person” means a natural person;(personne)
“Provincial Director” means the Provincial Director of Legal Aid appointed under section 3;(directeur provincial)
“student” means a person articled as a student-at-law under the provisions of The Barristers’ Society Act.(étudiant)
1971, c.11, s.1; 1987, c.6, s.51; 1993, c.21, s.1, 2; 2006, c.16, s.100; 2012, c.39, s.84
Administration
2(1)The Law Society may establish a plan in accordance with this Part and regulations to be known as Legal Aid New Brunswick.
2(2)Legal Aid New Brunswick shall be administered by the Law Society through the Provincial Director who shall be subject to the directions of the Law Society in all matters of policy and administration.
2(3)The Law Society shall establish policies in accordance with this Part and regulations governing the administration of the plan.
2(4)The Law Society shall appoint a standing committee in accordance with this Part and the regulations to be known as the Legal Aid Committee which shall
(a) advise and make recommendations to the Law Society on policy matters;
(b) advise the Provincial Director on matters of law; and
(c) perform such other duties as may be assigned by this Part and regulations or by the Law Society.
2(5)For the purposes of this Part the Law Society may act through its Council.
1971, c.11, s.2; 1983, c.46, s.1; 1987, c.6, s.51; 1993, c.21, s.3
Provincial Director
3(1)The Law Society shall establish an office for legal aid in the Province and may employ such clerical assistance as it considers necessary.
3(2)Subject to the approval of the Minister, the Law Society may appoint a Provincial Director of Legal Aid and may establish the terms of his employment.
3(3)The Provincial Director shall be bonded in accordance with the regulations.
3(4)The Provincial Director shall administer the plan in accordance with this Part and the regulations and policies established by the Law Society and, in accordance therewith, may direct the area directors concerning the performance of their duties.
1971, c.11, s.3; 1983, c.46, s.2; 1987, c.6, s.51; 1993, c.21, s.4
Area Directors
4(1)The Law Society may establish a regional legal aid office for each area and may employ such clerical assistance as it considers necessary.
4(2)Subject to the approval of the Minister, the Law Society may appoint an area legal aid director to serve in each regional office established under subsection (1) and may establish the terms of employment of each.
4(3)An area director shall administer the plan in the area for which he is appointed subject to the directions of the Provincial Director to whom he shall be accountable for such administration.
4(3.1)The duties of an area director shall include
(a) the issuing of legal aid certificates,
(b) the preparation of lists of barristers serving on legal aid panels,
(c) the appointment of duty counsel to courts within the area,
(d) the approval of accounts for fees and disbursements of duty counsel, and
(e) such other functions as are assigned by this Part and the regulations.
4(4)Where an area director is unable to perform his duties the Provincial Director may appoint an acting area legal aid director to perform the functions of the area director.
4(5)Where the office of area director for an area is vacant the Provincial Director shall serve as the area director for that area and, for that purpose, the Provincial Director has all the powers and duties of an area director under this Part and the regulations.
4(6)Where the Provincial Director serves as the area director for an area in accordance with subsection (5), any reference in this Part and the regulations to an area director shall, for that purpose and for so long as the Provincial Director serves as the area director for that area, be construed as a reference to the Provincial Director.
4(7)Where the Provincial Director serves as the area director for an area in accordance with subsection (5), the Provincial Director may, subject to the approval of the Law Society, delegate to persons employed under subsection (1) in that area any of the powers and duties of an area director under this Part and the regulations.
4(8)Where the Provincial Director serves as the area director for an area in accordance with subsection (5), an appeal to the Provincial Director under section 13 by an applicant for a legal aid certificate in that area shall be referred by the Provincial Director to the Legal Aid Committee for its determination.
4(9)Subsections 13(4) and (5) apply, with the necessary modifications, in respect of an appeal referred under subsection (8) to the Legal Aid Committee.
4(10)Where the Legal Aid Committee determines in respect of an appeal referred to it under subsection (8) that a legal aid certificate ought to be issued or amended, the Provincial Director shall issue or amend the certificate accordingly.
1971, c.11, s.4; 1983, c.46, s.3; 1987, c.6, s.51; 1989, c.57, s.1; 1993, c.21, s.5
Appointment of Barristers and Solicitors
4.1(1)The Law Society may appoint barristers and solicitors on terms approved by the Minister to provide legal aid.
4.1(2)The terms approved by the Minister may identify provisions of this Part and the regulations that will not apply to the barrister and solicitor appointed, or that will apply with modifications.
1994, c.45, s.1
Area Legal Aid Committees
5(1)The Law Society may for an area appoint an area legal aid committee consisting of not less than three persons appointed by the Law Society, at least one of whom is a member of the Law Society.
5(2)The area director for an area shall act as secretary of the area committee for that area.
5(3)An area committee shall perform the functions assigned to it in this Part and the regulations.
1971, c.11, s.5; 1987, c.6, s.51; 1993, c.21, s.6
Advisory Committee on Legal Aid
6(1)The Lieutenant-Governor in Council shall appoint an Advisory Committee to the Minister of Justice and Consumer Affairs on Legal Aid, hereinafter in this section referred to as the Committee, composed of
(a) two judges of The Court of Queen’s Bench of New Brunswick,
(b) Repealed: 1979, c.41, s.73
(c) a judge of the Provincial Court,
(d) the Deputy Minister of Justice or his designate,
(e) two barristers engaged in the private practice of law,
(f) the Deputy Minister of Social Development or his or her designate, and
(g) such other persons as are appointed,
and may designate one of the members to be chairman of the Committee.
6(2)An appointment to the Committee is for a period of two years and is renewable.
6(3)The Committee shall report at least once in each year to the Minister
(a) on the operation of Legal Aid New Brunswick,
(b) on the annual report of the Law Society to the Minister on legal aid, and
(c) on any matter referred to the Committee by the Minister.
6(4)Members of the Committee may be reimbursed out of the Legal Aid Fund for reasonable expenses incurred in the performance of their duties.
6(5)The Committee may designate one of its members to be secretary of the Committee and the Lieutenant-Governor in Council may authorize an honorarium to be paid to the secretary out of the Legal Aid Fund.
1971, c.11, s.6; 1972, c.28, s.2; 1979, c.41, s.73; 1986, c.8, s.63; 1987, c.6, s.51; 1994, c.59, s.7; 2000, c.26, s.177; 2006, c.16, s.100; 2008, c.6, s.31; 2012, c.39, s.84
Investigations by Advisory Committee
6.1(1)The Minister may request the Advisory Committee to conduct an investigation
(a) to determine if, in respect of an application made under this Part, this Part and the regulations have been complied with, or
(b) into any other matter relating to the administration of this Part.
6.1(2)Where the Minister makes a request under subsection (1), the Advisory Committee shall conduct an investigation.
6.1(3)Where the Advisory Committee conducts an investigation under this section, the Provincial Director, a member of the Legal Aid Committee, an area director or acting area director, a duty counsel, a member of an area committee and any person employed under this Part shall, upon a request by the Advisory Committee,
(a) give to the Advisory Committee all possible assistance in carrying out the investigation, and
(b) provide the Advisory Committee with any application, report, statement, record, document or other information requested by the Advisory Committee.
6.1(4)The Advisory Committee, at the conclusion of its investigation under this section,
(a) shall report its findings to the Minister, and
(b) may make recommendations to the Minister in respect of its findings if, in its opinion, circumstances so warrant.
1985, c.14, s.1; 1993, c.21, s.7
Legal Aid Fund
7(1)The Law Society shall
(a) establish in a chartered bank or federally incorporated trust company a fund to be known as the Legal Aid Fund into which shall be paid all money appropriated by the Legislature for legal aid and all money directed or authorized to be paid to the Law Society by this Part and the regulations, and
(b) keep accounts and records of the Legal Aid Fund in a form and manner approved by the Auditor General.
7(2)The Law Society may pay out of the Legal Aid Fund
(a) expenses attributable to the establishment and administration of the legal aid plan including salaries, allowances, retainers, office expenses, travelling expenses, advertising expenses, insurance premiums, superannuation contributions and audit fees,
(b) fees and disbursements to barristers and solicitors for legal aid, and the remuneration of barristers and solicitors appointed under section 4.1, and
(c) such other sums as are authorized by this Part to be paid out of the Legal Aid Fund.
7(3)The money appropriated by the Legislature for the purposes of this Part shall be paid out of the Consolidated Fund.
7(4)The Auditor General shall examine and report to the Minister annually on the accounts and financial transactions of Legal Aid New Brunswick.
1971, c.11, s.7; 1987, c.6, s.51; 1993, c.21, s.8; 1994, c.45, s.2
Annual report by Law Society
8(1)The Law Society shall, before the first day of July in each year, submit a report to the Minister for the twelve months ending on the thirty-first day of March of that year containing
(a) a statement of the nature and extent of legal aid during the year;
(b) a statement of the receipts and disbursements of the Legal Aid Fund during the year;
(c) general information with respect to the working of this Part and the regulations; and
(d) such other information as the Minister requests.
8(2)The Law Society shall, before the first day of November in each year, submit to the Minister an interim report on the operation of Legal Aid New Brunswick for the six month period ending on the thirtieth day of September of that year, together with a detailed estimate of the amount of money required to operate the plan in the next succeeding fiscal year of the Province.
1971, c.11, s.8; 1987, c.6, s.51; 1993, c.21, s.9
Annual report to Legislative Assembly
9The Minister shall lay the reports referred to in section 6 and subsection 8(1) before the Legislative Assembly, if it is in session or, if not, at the next ensuing session.
1971, c.11, s.9; 1974, c.25 (Supp.), s.1
Legal aid certificates
10(1)Subject to subsections (2) and (3), a legal aid certificate shall not be issued to a person who is not ordinarily resident in New Brunswick.
10(2)Where in the opinion of the Provincial Director the interests of justice demand that legal aid be extended to a person not ordinarily resident in New Brunswick, the Provincial Director may authorize that a legal aid certificate be issued to such person.
10(3)Subsections (1) and (2) do not apply in respect of any proceeding or any matter preliminary to an anticipated proceeding under paragraph 12(1)(a), or under paragraph 12(1)(g) in respect of proceedings under paragraph 12(1)(a).
10(4)The Minister may, with the approval of the Lieutenant-Governor in Council, enter into a reciprocal agreement with another province of Canada, or with a state that is designated by order in council, in which provision is made for extending the benefits of this Part to persons ordinarily resident in that province or state, in which case a legal aid certificate may be issued to one of such persons.
1971, c.11, s.10; 1973, c.54, s.1; 1993, c.21, s.10
Legal aid certificates
11(1)An application for legal aid may be made in a manner and form prescribed in the regulations to the area director for the area in which the applicant resides at the time the application is made, in which the matter or proceeding for which legal aid is required arises or in which the legal services required are to be performed.
11(2)An area director
(a) shall investigate the circumstances of an applicant in such manner as he deems appropriate,
(b) shall require an applicant to provide such information as is prescribed by the regulations and to declare under oath the truth of the information disclosed,
(c) shall determine whether an applicant can pay no part, some part or the whole of the cost of the legal aid applied for and the sum, if any, that an applicant is able to contribute toward the cost thereof, and
(d) may issue a legal aid certificate on such terms as, in his opinion, are warranted by the circumstances.
11(3)In making a determination under paragraph 2(c), an area director shall comply with such rules for determining financial eligibility as are prescribed in the regulations.
11(4)The Provincial Director or an area director may cancel a legal aid certificate issued by him or by a former area director for that area where he is satisfied that
(a) the legal aid certificate ought not to have been issued,
(b) the applicant has made a false statement or has concealed information in applying for legal aid, or
(c) because of changed circumstances since the date of issue of the certificate, the benefits of this Part ought not to be extended to the applicant.
11(5)Where a legal aid certificate is cancelled, the applicant, unless exempted from this provision by the Provincial Director on the ground that its application would prove unjust as against the applicant, shall reimburse the Law Society for the cost to the Law Society of providing legal aid to the applicant up to the time at which the certificate is cancelled, and the amount payable is debt owing to the Law Society.
11(6)Where an area director determines that the applicant can pay some part of the cost of the legal aid applied for, and the applicant does not pay that part of the cost at that time, the area director shall require the applicant to enter into a written agreement to pay that part of the cost under such conditions and at such time as may be set by the area director.
11(7)The amount that an applicant agrees to pay under subsection (6) is a debt owing to the Law Society; however where at any time such amount exceeds the cost to the Law Society of providing legal aid to the applicant the debt shall at that time be deemed to be an amount equal to the cost to the Law Society of providing legal aid to the applicant.
11(8)For the purposes of this section, the cost to the Law Society of providing legal aid to an applicant is the amount, if any, payable to a solicitor under this Part and the regulations in respect of legal aid to the applicant.
11(9)The Provincial Director or an area director may require, as a condition of issuing a legal aid certificate, that the applicant secure a debt referred to in subsection (7) by depositing with the Provincial Director such security as is authorized by the regulations and as is deemed appropriate and reasonable by the Provincial Director or the area director, as the case may be.
11(10)Where a legal aid certificate is cancelled under subsection (4) of this section or expires under subsection 14(5), or where all duties imposed by this Part and the regulations with respect to that legal aid certificate have been discharged
(a) any portion of the contribution already paid by the applicant that exceeds the amount of a debt owing to the Law Society shall be refunded to the applicant, and
(b) such portion of any security taken as is no longer necessary for securing a debt owing to the Law Society shall be returned to the applicant unless, in the opinion of the Provincial Director, it would be impractical or unreasonable to release the security in whole or in part.
1971, c.11, s.11; 1983, c.46, s.4; 1987, c.6, s.51; 1993, c.21, s.11; 1994, c.45, s.3
Legal aid certificates
11.1(1)Notwithstanding any other section of this Act, legal aid respecting those matters referred to in paragraphs 12(1)(c) to (g) provided to a person
(a) who is a person in need under the Social Welfare Act and is eligible to receive assistance under that Act, and
(b) who cannot pay for any part of the cost of the legal aid applied for,
shall be deemed to be the assistance which the person may receive under the Social Welfare Act for such legal aid.
11.1(2)Payments out of the Legal Aid Fund on behalf of a person referred to in subsection (1) shall only be paid out of the money appropriated by the Legislature for legal aid for persons eligible to receive assistance for legal aid under the Social Welfare Act.
11.1(3)Subsection (1) shall be deemed to have come into force on October 1, 1981.
1983, c.46, s.5
Legal aid certificates
12(1)Subject to the directions of the Provincial Director and policies established by the Law Society, an area director may issue legal aid certificates authorizing legal aid for proceedings and matters preliminary to anticipated proceedings
(a) in respect of an offence under an Act of the Parliament of Canada or in respect of the Extradition Act, chapter E-21 of the Revised Statutes of Canada, 1970 or the Fugitive Offenders Act chapter F-32 of the Revised Statutes of Canada, 1970,
(b) in respect of an offence under an Act of the Legislature,
(c) before an administrative tribunal established by an Act of the Legislature or of the Parliament of Canada,
(d) in bankruptcy,
(e) under the Divorce Act, chapter D-8 of the Revised Statutes of Canada, 1970, or the Divorce Act, 1985, chapter 4 of the Statutes of Canada, 1986,
(f) other than those covered in paragraphs (a) to (e), in The Court of Queen’s Bench of New Brunswick, the Provincial Court, The Probate Court of New Brunswick, the Supreme Court of Canada or the Federal Court of Canada, and
(g) of an appellate nature in respect of matters and proceedings described in such of paragraphs (a) to (f) as are in force.
12(2)With the prior approval of the Provincial Director, an area director may, in his discretion, issue a legal aid certificate authorizing legal services, other than those associated with judicial and administrative proceedings, that are customarily within the scope of the professional duties of a barrister and solicitor, including drawing documents, negotiating settlements and giving legal advice.
12(3)An area director may amend a legal aid certificate from time to time to alter the scope of the legal aid authorized by that certificate.
12(4)An area director shall not issue or amend a legal aid certificate under paragraph (1)(a) to authorize legal aid in respect of an offence punishable on summary conviction unless he is of the opinion that
(a) there is a likelihood of imprisonment or loss of means of earning a livelihood upon conviction,
(b) there are in existence circumstances that would serve to mitigate the severity of the penalty that may be imposed, or
(c) because of extraordinary circumstances, it is in the interests of justice that the applicant be represented by counsel.
12(5)Where the applicant has an election as to the manner in which he may be tried, a legal aid certificate issued in respect of proceedings under paragraph (1)(a) shall authorize proceedings in Provincial Court only unless the applicant’s solicitor certifies to the area director that, in his opinion, the interests of the accused require that he elect to be tried by a judge without a jury or by a court composed of a judge and jury, in which case the area director may amend the certificate accordingly.
12(6)With the prior approval of the Provincial Director an area director may issue or amend a legal aid certificate to authorize legal aid for proceedings included in paragraph (1)(b) if
(a) there appears to be a likelihood of imprisonment or loss of means of earning a livelihood upon conviction, and
(b) the area director is of the opinion that
(i) there is a possible defence to the charge,
(ii) there are in existence circumstances that would serve to mitigate the severity of the penalty that may be imposed, or
(iii) because of extraordinary circumstances, it is in the interests of justice that the applicant be represented by counsel.
12(6.1)Notwithstanding subsection (6), an area director may issue or amend a legal aid certificate to authorize legal aid for proceedings included in paragraph (1)(b) without the prior approval of the Provincial Director, where the offence with which the applicant is charged carries a mandatory term of imprisonment.
12(7)An area director shall not issue or amend a legal aid certificate to authorize legal aid in respect of paragraph (1)(c) or (d) unless he is of the opinion that the applicant has an interest that ought to be raised or protected in the matter or proceeding and that it is in the interests of justice that the applicant be represented by counsel.
12(8)An area director shall not issue or amend a legal aid certificate to authorize legal aid in respect of paragraph (1)(e) or (f) unless, in his opinion, it is reasonable under the circumstances of the case to institute or defend the proceedings, or to continue the action or defence to the action, as the case may be.
12(9)In determining the reasonableness of the proposed course of action under subsection (8), an area director shall consider the matter from the standpoint of a usual solicitor and client relationship, taking into account the possibility of success, the cost of the proceedings in relation to the anticipated loss or recovery, and the likelihood of enforcing judgment.
12(10)Except where in the opinion of the area director the circumstances of an application require the immediate issue or amendment of a legal aid certificate, an area director shall not issue or amend a legal aid certificate to authorize legal aid in respect of paragraph (1)(g) unless
(a) the applicant has included in his application
(i) the opinion of his solicitor as to the advisability of instituting or defending an appeal,
(ii) a copy of the order or judgment appealed from, and
(iii) such other information as the area director requires him to provide,
(b) the area director considers that it is reasonable that the appeal be instituted or defended,
(c) the area director has submitted the application to the area committee for that area, if one has been established, or to the Provincial Director, if an area committee has not been established for that area, and
(d) the area committee or the Provincial Director, as the case may be, has approved the issuing or amending of a legal aid certificate.
12(11)The Provincial Director may refer to the Legal Aid Committee for its recommendation any matter requiring his approval under paragraph (10)(d).
12(12)Notwithstanding any other provision of this Part, the Provincial Director may from time to time direct that an area director obtain his prior approval for the issuance or amendment of any type of legal aid certificate specified in such directions.
12(13)Notwithstanding any other provision of this Part, the Law Society, with the approval of the Minister, may from time to time establish policies and issue directions defining circumstances under which an applicant may be determined to be ineligible as a recipient of legal aid by reason of
(a) the applicant being charged with an offence the same as or similar to one for which he has been previously convicted, or
(b) the total amount of legal aid that the applicant is currently receiving or has received from the plan.
12(14)Where the Law Society is of the opinion that the Legal Aid Fund is in danger of being depleted, it may, with the approval of the Minister, issue directions to the Provincial Director limiting the providing of legal aid in matters included in paragraphs (1)(c) to (g) and subsection (2).
1971, c.11, s.12; 1973, c.54, s.2; 1979, c.41, s.73; 1983, c.46, s.6; 1987, c.6, s.51; 1993, c.21, s.12; 2008, c.43, s.10
Legal aid certificates
13(1)Subject to subsection (2), where an area director refuses to issue or amend a legal aid certificate, or conditions the issuing of a certificate on the contribution of the applicant, or cancels a legal aid certificate, the applicant may appeal to the area committee for that area, if one has been established, or, if one has not been established, to the Provincial Director, in a form prescribed in the regulations.
13(2)Where the refusal, issuing or cancellation referred to in subsection (1) relates to an application for legal aid in respect of a proceeding of an appellate nature, the applicant may appeal to the Provincial Director.
13(3)An area director shall make available to each applicant entitled to appeal under subsection (1) or (2) the form referred to in subsection (1) and shall inform the applicant of the name and address of the person to whom the form is to be delivered.
13(4)An area committee or the Provincial Director shall determine an appeal under this section in accordance with the criteria governing the disposition of the application by the area director.
13(5)An appeal under this section is an informal review only and no right to a hearing is established by this section, but an area committee or the Provincial Director, as the case may be, may obtain such information and opinions and hear such representations as is considered necessary.
13(6)The Provincial Director may, in his discretion, refer to the Legal Aid Committee for its recommendation any matter appealed to him under this section.
13(7)Where the Provincial Director or an area committee determines under subsection (4) that a legal aid certificate ought to be issued or amended, the area director shall issue or amend the certificate accordingly.
1971, c.11, s.13
Panel lists
14(1)A solicitor who maintains an office or has an established legal practice in an area may apply to the area director of that area to have his name placed on one or more of
(a) a criminal duty counsel panel;
(b) a criminal legal aid panel;
(c) a civil duty counsel panel;
(d) a civil legal aid panel; and
(e) a legal advice and services panel.
14(2)An area director shall enter the name of each solicitor who has applied under subsection (1) on each panel stipulated in the application.
14(3)Where an area director issues a legal aid certificate he shall advise the holder of the legal aid certificate of the names of all solicitors on the appropriate panel for that area.
14(4)Nothing in subsection (3) prevents the holder of a legal aid certificate from retaining a solicitor who is not on a panel for that area if the solicitor retained is on the appropriate panel for another area and the Provincial Director gives his approval.
14(5)Where a holder of a legal aid certificate does not retain a solicitor within sixty days of the date of issue of the legal aid certificate, the legal aid certificate expires.
14(6)A holder of a legal aid certificate authorizing services to be performed under paragraph 12(1)(a) or (g) in respect of an offence punishable by death or life imprisonment may retain any solicitor, whether or not his name has been placed on a panel, except a solicitor whose name has been removed from a panel, other than upon his own request, and has not been restored.
14(7)Except where authorized under subsection (6), no solicitor shall act for a person under a legal aid certificate unless his name is on an appropriate panel in relation to the service to be performed under that certificate.
1971, c.11, s.14; 1973, c.54, s.3; 1974, c.25 (Supp.), s.2
Appointed solicitors - special provisions
14.1Subject to subsection 14(6), if a barrister and solicitor has been appointed under section 4.1 to provide legal aid, the area director may require the holder of a legal aid certificate to retain that solicitor, in which case subsections 14(3), (4) and (7) do not apply.
1994, c.45, s.4
Fees
15(1)Where a barrister or solicitor provides professional services to a holder of a legal aid certificate other than those services that are authorized by the legal aid certificate, he is not entitled to be paid for those services out of the Legal Aid Fund.
15(2)No barrister or student shall take or receive any payment or other benefit for providing professional services under this Part except as is provided in this Part and the regulations.
15(2.1)Notwithstanding subsection (2), a barrister or solicitor may accept from his client payment by way of reimbursement of disbursements properly made by the barrister or solicitor in matters included in paragraphs 12(1)(c) to (g) where such disbursements are not payable out of the Legal Aid Fund.
15(3)A solicitor may refuse to accept as a client a holder of a legal aid certificate, but no solicitor who is approached by a holder of a legal aid certificate seeking legal aid shall accept that person as a client on a remunerative basis other than is provided in this Part and the regulations.
1971, c.11, s.15; 1983, c.46, s.7; 1993, c.21, s.13
Fees and court costs
16(1)Where a holder of a legal aid certificate recovers costs in respect of the proceeding for which the certificate was issued pursuant to a judgment or order of a court, he shall pay such costs to the Law Society.
16(2)Where proceedings are taken or defended by a holder of a legal aid certificate, and he is ordered to pay costs by a judgment or order of a court, the Provincial Director may, in his discretion, authorize a payment in respect of such costs out of the Legal Aid Fund.
16(3)Where a holder of a legal aid certificate recovers under a judgment, order, settlement or otherwise any sum in respect of the proceeding for which the legal aid certificate was issued, he shall pay to the Law Society an amount equal to the disbursements made in the proceeding together with the value of the professional services provided, less the amount he is obligated to pay under subsection (1).
16(4)Where the holder of a legal aid certificate recovers under a judgment, order, settlement or otherwise any property in respect of the proceeding for which the legal aid certificate was issued, he shall pay to the Law Society an amount equal tothe disbursements made in the proceeding together with the value of the professional services provided, less the amount he is obligated to pay under subsection (1).
16(5)The Provincial Director may reduce or waive an amount payable under subsection (3) or (4) where, under the circumstances of the case, he considers it unjust to require the amount to be paid in full, in which case the amount deemed to be payable under subsection (3) or (4) shall be an amount set by the Provincial Director.
16(6)Where a solicitor is in possession of an amount in respect of costs referred to in subsection (1), whether in trust or otherwise, he shall pay such amount to the Law Society and not to his client.
16(7)Where a solicitor is in possession of any sum referred to in subsection (3), whether in trust or otherwise, he shall pay such amount to the Law Society and not to his client.
16(8)Where a solicitor is in possession of any property referred to in subsection (4), whether in trust or otherwise, he shall withhold such property from his client until such time as the client complies with subsection (4) or gives such security for payment as is required by the Provincial Director.
16(9)An amount payable under subsection (1), (3) or (4) is a debt owing to the Law Society.
1971, c.11, s.16; 1987, c.6, s.51; 1994, c.45, s.5
Memorials of debts
16.1(1)The Provincial Director may issue a memorial of a debt arising under section 11 or 16 containing the amount of the debt and verified by affidavit.
16.1(2)Upon the production to a registrar of deeds of a memorial referred to in subsection (1) together with an affidavit, he shall register the same, noting the date of its receipt as in the case of registry of conveyances.
16.1(3)A copy of a registered memorial certified by the registrar shall be admissible as evidence of such registration in all proceedings.
16.1(4)A memorial of a debt referred to in subsection (1) registered in the registry office of the county in which the lands are situated binds the lands of the person who owes an amount to the Law Society in accordance with section 11 or 16.
16.1(5)Every memorial so registered binds the lands of the person who owes an amount to the Law Society in accordance with section 11 or 16 for five years from the date of registration and after that period, if the debt remains unsatisfied, the memorial may be renewed for a further period of five years with like effect and so on as required by registering it again in accordance with this Part.
1983, c.46, s.8; 1987, c.6, s.51; 1993, c.21, s.14
Memorials of debts
16.2(1)Satisfaction of any debt, a memorial of which is registered, may be acknowledged before the registrar of deeds by the Provincial Director or area director who received payment in accordance with the regulations.
16.2(2)The registrar of deeds shall enter the fact of satisfaction in the margin of the entry of the memorial, whereupon it shall be cancelled.
1983, c.46, s.8
Recovery proceedings by Law Society
17Repealed: 1997, c.S-9.1, s.33
1971, c.11, s.17; 1979, c.41, s.73; 1997, c.S-9.1, s.33
Recovery proceedings by Law Society
17.1Subject to the approval of the Minister, the Law Society may
(a) delete from the accounts of the Legal Aid Fund any debts arising under section 11 or 16; and
(b) authorize the destruction of cheques which are drawn on the account for the Fund and which are paid and cancelled.
1983, c.46, s.9; 1987, c.6, s.51
Liability of Law Society
18The Law Society is not liable for any act or omission of any barrister who provides professional services under this Part.
1971, c.11, s.18; 1987, c.6, s.51; 1993, c.21, s.15
Privileged communications
19Communications between an applicant for legal aid, on the one hand, and the Provincial Director, a member of the Legal Aid Committee, an area director or acting area director, a duty counsel, a member of an area committee or any person employed under this Part, on the other hand, which would be privileged if made between a client and his solicitor, are privileged in the same manner and to the same extent as solicitor and client communications.
1971, c.11, s.19; 1993, c.21, s.16
Exceptions
19.1(1)Notwithstanding section 19, where the Advisory Committee conducts an investigation under section 6.1, the Advisory Committee may require the Provincial Director, a member of the Legal Aid Committee, an area director or acting area director, a duty counsel, a member of an area committee and any person employed under this Part to disclose to it any communication referred to in section 19.
19.1(2)No member of the Advisory Committee shall
(a) disclose, publish or communicate to any person any application, report, statement, record, document, or other information provided under subsection 6.1(3) or any communication disclosed under subsection (1) except to the Minister, or
(b) use such application, report, statement, record, document or other information or communication except for the purposes of subsections 6.1(2) and (4).
19.1(3)The Minister may disclose any information or communication provided to him by the Advisory Committee where, in his opinion, such disclosure is necessary for the proper administration of this Part.
1985, c.14, s.2; 1993, c.21, s.17
Regulations
20The Lieutenant-Governor in Council may make regulations for carrying into effect the purposes and provisions of this Part and, without limiting the generality of the foregoing, may make regulations
(a) designating regions of New Brunswick as areas for purposes of this Part;
(b) prescribing oaths of office and secrecy as conditions of appointment or employment under this Part;
(c) respecting the functions of the Provincial Director, area directors, duty counsel and other persons employed for purposes of this Part;
(d) respecting the constitution, functions and procedures of area committees and the Legal Aid Committee;
(e) respecting panels referred to in section 14, including the removal of solicitors therefrom;
(f) respecting the establishment of student legal aid societies and the functions of students participating in the legal aid plan;
(g) prescribing procedures for applying for legal aid;
(h) prescribing information to be disclosed by applicants for legal aid;
(i) respecting the non-disclosure of information furnished by or about an applicant for legal aid;
(j) prescribing rules for determining financial eligibility and the grounds on which applicants may be determined to be ineligible for legal aid;
(k) prescribing the form and content of legal aid certificates;
(l) prescribing procedures for issuing, amending and cancelling legal aid certificates;
(l.1) respecting the issuing of legal aid certificates retroactively;
(m) respecting appeals referred to in section 13;
(n) respecting memorials of debt, liens and other forms of security that may be required to secure obligations arising under this Part, including the creation, registration, amount, operation, effect and discharge thereof;
(o) respecting solicitors’ reports on legal aid;
(p) respecting the manner in which solicitors’ accounts and duty counsel accounts shall be presented and approved for payment;
(p.1) authorizing the Provincial Director to refuse to pay all or any part of an account presented for payment;
(p.2) respecting the grounds on which and the circumstances in which the Provincial Director may refuse to pay all or any part of an account presented for payment;
(q) respecting a scale of fees by which the value of professional services is assessed and prescribing the percentage of the assessed value that may be paid for legal aid;
(r) respecting the repayment of disbursements to solicitors;
(r.1) respecting the provision of legal aid by barristers and solicitors appointed under section 4.1;
(s) respecting the payment of money into and out of the Legal Aid Fund;
(s.1) respecting the bonding of persons appointed or employed under this Part;
(t) prescribing forms and providing for their use.
1971, c.11, s.20; 1983, c.46, s.10; 1989, c.57, s.2; 1993, c.21, s.18; 1994, c.45, s.6
Issue of legal aid certificate
21No legal aid certificate shall be issued unless it is authorized under section 12 or a subsection thereof or a paragraph thereof that is in force.
1971, c.11, s.21
Approval of legal aid and cancellation of certificates by Minister
21.1Notwithstanding any other provision of this Act or the regulations, the Minister may
(a) approve and make payment for legal aid provided before April 1, 1993 under this Part for matters and proceedings included in paragraphs 12(1)(e) or 12(1)(f) or for matters and proceedings of an appellate nature in respect of paragraphs 12(1)(e) or 12(1)(f); and
(b) cancel a legal aid certificate issued before April 1, 1993 under this Part for matters and proceedings included in paragraphs 12(1)(e) or (f) or for matters and proceedings of an appellate nature in respect of paragraphs 12(1)(e) or 12(1)(f) if the Minister is satisfied that
(i) the legal aid certificate ought not to have been issued,
(ii) the applicant has made a false statement or has concealed information in applying for legal aid,
(iii) because of changed circumstances since the date of issue of the legal aid certificate, the benefits of this Part ought not to be extended to the applicant, or
(iv) excessive time has elapsed since the date of issue of the legal aid certificate.
1993, c.21, s.19
Commencement
22Paragraphs 12(1)(c) to (f) and subsections 12(2), (7), (8) and (9) shall come into force on a day or days to be fixed by proclamation.
1971, c.11, s.22
II
1993, c.21, s.20
Definitions
23In this Part
“legal aid” means professional services provided under this Part and the regulations;(aide juridique)
“Minister” means the Minister of Justice and includes any person designated by the Minister to act on the Minister’s behalf.(Ministre)
1993, c.21, s.20; 2006, c.16, s.100; 2012, c.39, s.84
Establishment and administration of program by Minister
24(1)Notwithstanding any other provision of this Act or the regulations, the Minister may establish and administer a program to provide legal aid for persons for proceedings and matters preliminary to anticipated proceedings
(a) under the Divorce Act, (Canada),
(b) other than those covered in paragraphs 12(1)(a) to 12(1)(e), in The Court of Queen’s Bench of New Brunswick, the Supreme Court of Canada or the Federal Court of Canada, and
(c) of an appellate nature in respect of matters and proceedings described in paragraphs (a) and (b).
24(2)The Minister may, for the purposes of subsection (1),
(a) employ persons to provide legal aid, or
(b) enter into contracts with persons for the provision of legal aid.
24(3)Nothing in this section shall be construed so as to oblige the Minister to provide legal aid in respect of which no money has been appropriated by the Legislature.
24(4)The Lieutenant-Governor in Council may make regulations respecting the provision of legal aid under this Part.
1993, c.21, s.20; 2008, c.43, s.10
III
2004, c.38, s.1; 2005, c.8, s.1
Definitions
2005, c.8, s.1
25The following definitions apply in this Part.
“area” means a region of New Brunswick designated in the regulations.(région)
“area committee” means an area legal aid committee appointed under section 51.(comité régional)
“barrister” or “solicitor” means a member of the Law Society entitled to practise law in the courts of New Brunswick. (avocat) ou (solicitor)
“Board” means the Board of Directors of the Commission appointed under section 29. (conseil)
“Commission” means the New Brunswick Legal Aid Services Commission established under section 26. (Commission)
“employee” means a person employed under this Part for the purposes of the administration of the plan and includes an employee referred to in section 59 and subsection 60(1).(employé)
“Executive Director” means the Executive Director of Legal Aid appointed under section 39.(directeur général)
“Law Society” means the Law Society of New Brunswick. (Barreau)
“legal aid” means professional services provided under this Part and the regulations.(aide juridique)
“Legal Aid Committee” means the Legal Aid Committee appointed under section 49. (Comité d’aide juridique)
“Minister” means the Minister of Justice and includes any person designated by the Minister to act on the Minister’s behalf.(Ministre)
“person” , in relation to an applicant for legal aid, means a natural person.(personne)
“plan” means the plan known as Legal Aid New Brunswick that is established under this Part and the regulations.(programme)
“student” means a student-at-law under the Law Society Act, 1996.(étudiant)
2004, c.38, s.1; 2005, c.8, s.1; 2006, c.16, s.100; 2012, c.39, s.84
Establishment of Commission
2005, c.8, s.1
26(1)There is established a body corporate without share capital to be known as the New Brunswick Legal Aid Services Commission.
26(2)For the purposes of this Part, the Commission has the capacity and the rights, powers and privileges of a natural person.
26(3)Notwithstanding subsection (2), the Commission shall not borrow money unless
(a) the money is to be used for the provision of legal aid or the administration of the plan, and
(b) the Minister of Finance first approves the borrowing.
2004, c.38, s.1; 2005, c.8, s.1
Not an agent of the Crown
2005, c.8, s.1
27The Commission is not an agent of the Crown.
2004, c.38, s.1; 2005, c.8, s.1
Head office
2005, c.8, s.1
28The head office of the Commission is at The City of Fredericton.
2004, c.38, s.1; 2005, c.8, s.1
Board of Directors
2005, c.8, s.1
29(1)The Commission shall have a Board of Directors consisting of from 5 to 7 members appointed by the Lieutenant-Governor in Council.
29(2)A member of the Board shall hold office for a term of 5 years from the date of his or her appointment and is eligible for reappointment.
29(3)The appointment of a member of the Board may be revoked for cause by the Lieutenant-Governor in Council.
29(4)Notwithstanding subsection (2) but subject to subsection (3), a member of the Board remains in office until the member resigns or is reappointed or replaced.
29(5)If a vacancy occurs during the term of office of a member of the Board, the Lieutenant-Governor in Council shall appoint a person to fill the vacancy and the person so appointed shall hold office for the remainder of the term of the member whose position on the Board was vacated or until a successor is appointed.
29(6)A vacancy does not impair the capacity of the Board to act as long as a quorum is maintained.
2004, c.38, s.1; 2005, c.8, s.1
Chair and Vice-Chair
2005, c.8, s.1
30The Lieutenant-Governor in Council shall designate a Chair and a Vice-Chair of the Board from among the members of the Board.
2004, c.38, s.1; 2005, c.8, s.1
Meetings of the Board
2005, c.8, s.1
31The Board shall meet at least 4 times each calendar year.
2004, c.38, s.1; 2005, c.8, s.1
Quorum
2005, c.8, s.1
32A majority of the members of the Board constitutes a quorum.
2004, c.38, s.1; 2005, c.8, s.1
Remuneration and expenses
2005, c.8, s.1
33(1)The members of the Board are entitled to be paid such remuneration as is determined by the Lieutenant-Governor in Council.
33(2)Each member of the Board is entitled to be paid such travelling and living expenses incurred by the member in the performance of the member’s duties as are determined by the Lieutenant-Governor in Council.
33(3)The remuneration and expenses referred to in subsections (1) and (2) are payable out of the Legal Aid Fund.
2004, c.38, s.1; 2005, c.8, s.1
By-laws
2005, c.8, s.1
34(1)The Board may make by-laws governing the administration, management and conduct of its affairs.
34(2)The Board shall make by-laws governing the conflicts of interest of members of the Board and, if the Board considers it appropriate, imposing restrictions on the activities of members to avoid conflicts of interest.
34(3)The Board shall make by-laws governing the remuneration and other conditions of employment of the employees of the Commission.
34(4)The by-laws shall be general in nature and not specific to any particular employee.
34(5)The Regulations Act does not apply to by-laws made by the Board.
2004, c.38, s.1; 2005, c.8, s.1
Fiscal year
2005, c.8, s.1
35The fiscal year of the Commission ends on the thirty-first day of March in each year.
2004, c.38, s.1; 2005, c.8, s.1
Reports
2005, c.8, s.1
36(1)Before the first day of October in each year, the Commission shall submit a report to the Minister for the 12 months ending on the thirty-first day of March of that year containing:
(a) a statement of the nature and extent of legal aid during the 12 month period;
(b) a statement of the receipts and disbursements of the Legal Aid Fund during the 12 month period;
(c) general information with respect to the working of this Part and the regulations; and
(d) such other information as the Minister requests.
36(2)The Minister shall lay the report referred to in subsection (1) before the Legislature if it is in session or, if not, at the next session.
36(3)Before the first day of December in each year, the Commission shall submit to the Board of Management an interim report on the operation of the plan for the 6 month period ending on the thirtieth day of September of that year, together with a proposed budget containing a detailed estimate of the amount of money required to operate the plan in the next fiscal year of the Province.
36(4)The Secretary of the Board of Management may make a report on the proposed budget, containing such recommendations as he or she considers appropriate, to the Chair of the Board of Directors of the Commission within 30 days after receiving the proposed budget.
2004, c.38, s.1; 2005, c.8, s.1
Financial statements
2005, c.8, s.1
37The financial statements of the Commission shall be prepared in accordance with generally accepted accounting principles.
2004, c.38, s.1; 2005, c.8, s.1
Audit
2005, c.8, s.1
38The accounts and financial statements of the Commission shall be audited at least once a year by the Auditor General of New Brunswick.
2004, c.38, s.1; 2005, c.8, s.1
Executive Director
2005, c.8, s.1
39(1)The Lieutenant-Governor in Council shall appoint as the Executive Director of Legal Aid the person nominated by the Board.
39(2)The Board shall establish the terms and conditions of the Executive Director’s appointment.
39(3)An Executive Director shall hold office for a term of 7 years from the date of his or her appointment.
39(4)The appointment of an Executive Director may be revoked for cause by the Lieutenant-Governor in Council.
39(5)An Executive Director is eligible for reappointment and subsections (1) to (4) apply with the necessary modifications in respect of a reappointment.
39(6)The Executive Director shall perform the duties and may exercise the powers imposed on the Executive Director by this Part, the regulations or the Board.
2004, c.38, s.1; 2005, c.8, s.1
Employees
2005, c.8, s.1
40(1)The Executive Director may, on behalf of the Commission, employ such persons, including barristers and solicitors, as the Executive Director considers necessary for the provision of legal aid.
40(2)The remuneration and other conditions of employment of the employees of the Commission shall be established by the by-laws of the Board.
40(3)The pension plan converted to a shared risk plan in accordance with An Act Respecting Public Service Pensions applies to the employees of the Commission.
40(4)The Civil Service Act does not apply to the employees of the Commission.
40(5)Subject to the approval of the Board of Directors of the Commission, employees are eligible to participate in any employee benefit program established by the Board of Management.
2004, c.38, s.1; 2005, c.8, s.1; 2013, c.44, s.24
Appointments and contracts
2005, c.8, s.1
41(1)On the terms approved by the Board, the Executive Director may, on behalf of the Commission, appoint or contract with any person, including barristers and solicitors, that the Executive Director considers necessary for the provision of legal aid.
41(2)Any person appointed or contracted with under subsection (1) is not an employee of the Commission.
2004, c.38, s.1; 2005, c.8, s.1
Performance of duties
2005, c.8, s.1
42(1)Subject to any provision in this Part, any regulation and any policy established under this Part and the regulations, the Executive Director may direct all employees concerning the performance of their duties.
42(2)Subject to any provision in this Part, any regulation and any policy established under this Part and the regulations, the Executive Director may direct all persons appointed or contracted with under section 41 concerning the performance of their duties.
2004, c.38, s.1; 2005, c.8, s.1
Immunity
2005, c.8, s.1
43No action lies for damages or otherwise and no proceeding shall be taken in any court, whether by way of injunction, declaratory judgment, order on judicial review or otherwise, against any of the following persons in relation to anything done in good faith, or in relation to anything omitted in good faith, under this Part by the person:
(a) the Board;
(b) a member or former member of the Board;
(c) the Executive Director or a former Executive Director;
(d) an employee or former employee of the Commission;
(e) a person appointed or contracted with under section 41;
(f) a member or former member of the Legal Aid Committee; or
(g) a member or former member of an area committee.
2004, c.38, s.1; 2005, c.8, s.1
Decisions final
2005, c.8, s.1
44Every decision of the Board or the Executive Director is final and may not be questioned or reviewed in any court.
2004, c.38, s.1; 2005, c.8, s.1
Indemnity
2005, c.8, s.1
45(1)In this section, “Court of Queen’s Bench” means The Court of Queen’s Bench of New Brunswick.
45(2)Except in relation to an action by or on behalf of the Commission, in which case the approval of the Court of Queen’s Bench must first be obtained, the Commission may indemnify any member or former member of the Board, any employee or former employee of the Commission, the Executive Director or a former Executive Director or any member or former member of the Legal Aid Committee or an area committee, and his or her heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him or her in relation to any civil, criminal or administrative action or proceeding to which he or she is made a party by reason of being or having been a member of the Board, an employee of the Commission, the Executive Director or a member of the Legal Aid Committee or an area committee, if he or she
(a) acted honestly and in good faith with a view to the best interests of the Commission, and
(b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, had reasonable grounds for believing that his or her conduct was lawful.
45(3)Notwithstanding anything in this section, a person referred to in subsection (2) is entitled to indemnity from the Commission in respect of all costs, charges and expenses reasonably incurred in connection with the defence of any civil, criminal or administrative action or proceeding to which the person is made a party by reason of being or having been a member of the Board, an employee of the Commission, the Executive Director or a member of the Legal Aid Committee or an area committee if the person seeking indemnity
(a) was substantially successful on the merits of the person’s defence of the action or proceeding,
(b) fulfils the conditions set out in paragraphs (2)(a) and (b), and
(c) is fairly and reasonably entitled to indemnity.
45(4)The Commission may purchase and maintain insurance for the benefit of any person referred to in subsection (2) against any liability incurred by that person as a member of the Board, an employee of the Commission, the Executive Director or a member of the Legal Aid Committee or an area committee, except where the liability relates to the failure of that person to act honestly and in good faith with a view to the best interests of the Commission.
45(5)The Commission or a person referred to in subsection (2) may apply to the Court of Queen’s Bench for an order approving an indemnity under this section and the Court of Queen’s Bench may so order and make any further order it thinks fit.
45(6)On an application under subsection (5), the Court of Queen’s Bench may order notice to be given to any interested person and that person is entitled to appear and be heard in person or by legal counsel.
45(7)Any amount payable under this section is payable out of the Legal Aid Fund.
2004, c.38, s.1; 2005, c.8, s.1
Commission not practising law
2005, c.8, s.1
46(1)Subject to subsection (2), the Commission is not considered to be practising law within the meaning of the Law Society Act, 1996.
46(2)With respect to legal services provided under this Part by a barrister or solicitor employed by the Commission or appointed or contracted with under section 41, the barrister or solicitor remains subject to the Law Society Act, 1996 and the rules under that Act.
2004, c.38, s.1; 2005, c.8, s.1
Agreement for services
2005, c.8, s.1
47The Commission may enter into agreements with any Minister of the Crown for the provision by employees of the Crown of any service required by the Commission to carry out its duties and exercise its powers.
2004, c.38, s.1; 2005, c.8, s.1
Legal aid offices
2005, c.8, s.1
48(1)The Commission may establish a regional legal aid office for each area.
48(2)The duties of the employees for an area include:
(a) the issuing of legal aid certificates;
(b) the preparation of lists of barristers and solicitors serving on legal aid panels;
(c) the appointment of duty counsel to courts within the area;
(d) the approval of accounts for fees and disbursements of duty counsel; and
(e) such other functions as are assigned by the Executive Director, this Part and the regulations.
2004, c.38, s.1; 2005, c.8, s.1
Legal Aid Committee
2005, c.8, s.1
49(1)The Lieutenant-Governor in Council may appoint a standing committee in accordance with this Part and the regulations to be known as the Legal Aid Committee that shall
(a) advise and make recommendations to the Commission or the Minister on policy matters;
(b) advise the Executive Director on matters of law; and
(c) perform such other duties as may be assigned by this Part or the regulations.
49(2)The Lieutenant-Governor in Council shall appoint the Chair of the Legal Aid Committee.
2004, c.38, s.1; 2005, c.8, s.1
Investigations
2005, c.8, s.1
50(1)Upon the request of the Commission or the Minister, the Legal Aid Committee shall conduct an investigation
(a) to determine if this Part and the regulations have been complied with in respect of an application made under this Part, or
(b) into any other matter relating to the administration of this Part.
50(2)The Executive Director, a duty counsel, a member of an area committee, an employee and a person appointed or contracted with under section 41 shall, upon a request by the Legal Aid Committee,
(a) give to the Legal Aid Committee all possible assistance in carrying out the investigation, and
(b) provide the Legal Aid Committee with any application, report, statement, record, document or other information requested by the Legal Aid Committee.
50(3)At the conclusion of its investigation under this section, the Legal Aid Committee
(a) shall report its findings to the Commission or the Minister, as the case may be, and
(b) may make recommendations to the Commission or the Minister, as the case may be, in respect of its findings if, in its opinion, circumstances so warrant.
2004, c.38, s.1; 2005, c.8, s.1
Area legal aid committees
2005, c.8, s.1
51(1)The Executive Director may appoint an area legal aid committee for an area.
51(2)An area committee shall consist of not less than 3 persons.
51(3)Only an employee for an area shall act as secretary of the area committee for that area.
51(4)An area committee shall perform the functions assigned to it in this Part and the regulations.
2005, c.8, s.1
Legal Aid Fund
2005, c.8, s.1
52(1)The Commission shall establish in a chartered bank or federally incorporated trust company a fund to be known as the Legal Aid Fund.
52(2)The money appropriated by the Legislature for legal aid shall be paid out of the Consolidated Fund.
52(3)All money appropriated by the Legislature for legal aid shall be deposited in the Legal Aid Fund.
52(4)Any money received by the Commission by gift or grant shall be deposited in the Legal Aid Fund.
52(5)Any money borrowed by the Commission shall be deposited in the Legal Aid Fund.
52(6)Any money required to be paid by an applicant for legal aid or the holder of a legal aid certificate under this Part shall be deposited in the Legal Aid Fund.
52(7)The following are payable out of the Legal Aid Fund:
(a) expenses attributable to the establishment and administration of the plan including salaries, employee benefits, allowances, retainers, office expenses, travelling expenses, advertising expenses, insurance premiums and superannuation contributions;
(b) fees and disbursements to barristers and solicitors for the provision of legal aid and the remuneration of barristers and solicitors appointed or contracted with under section 41; and
(c) such other sums as are authorized by this Part or the regulations to be paid out of the Legal Aid Fund.
52(8)The Executive Director and either the Chair or the Vice-Chair are the signing officers of the Legal Aid Fund.
2005, c.8, s.1
Establishment of plan
2005, c.8, s.1
53(1)The Commission may establish a plan in accordance with this Part and the regulations to be known as Legal Aid New Brunswick.
53(2)The Executive Director shall administer the plan in accordance with this Part, the regulations and any policies established under this Part and the regulations.
53(3)Subject to the approval of the Board, the Executive Director shall establish policies in accordance with this Part and the regulations governing the administration of the plan.
53(4)The Regulations Act does not apply to any policies established under this Part and the regulations.
2005, c.8, s.1
Forms
2005, c.8, s.1
54Any form required under this Part or the regulations shall be in the form provided by the Executive Director.
2005, c.8, s.1
Application of Parts I and II
2005, c.8, s.1
55Subject to sections 56 and 57, Parts I and II do not apply on and after the commencement of this section.
2005, c.8, s.1
Adoption of provisions from Part I
2005, c.8, s.1
56(1)Subject to subsections (2) to (40), sections 10 to 21 are adopted for the purposes of this Part and apply to the provision of legal aid and the administration of the plan.
56(2)Subject to subsections (4), (5), (6), (8), (11), (15), (16), (17), (20), (22), (23), (25), (31), (34), (35) and (37), references to “area director” in the provisions adopted under subsection (1) shall be read as “employee for an area”.
56(3)Subject to subsections (6), (7), (17), (19), (34), (35) and (37), references to “Provincial Director” in the provisions adopted under subsection (1) shall be read as “Executive Director”.
56(4)The reference to “in a manner and form prescribed in the regulations to the area director for the area” in subsection 11(1), as adopted under subsection (1), shall be read as “in the manner prescribed by regulation to an employee for the area”.
56(5)The reference to “area director” in subsection 11(3), as adopted under subsection (1), shall be read as “employee for an area”.
56(6)The reference to “The Provincial Director or an area director may cancel a legal aid certificate issued by him or by a former area director for that area where he is satisfied that” in subsection 11(4), as adopted under subsection (1), shall be read as “The Executive Director or an employee for an area may cancel a legal aid certificate issued by him or her or by a former employee for that area where he or she is satisfied that”.
56(7)Subsection 11(5), as adopted under subsection (1), shall be read as follows:
11(5)Where a legal aid certificate is cancelled, the applicant, unless exempted from this provision by the Executive Director on the ground that its application would prove unjust as against the applicant, shall reimburse the Commission for the cost to the Commission of providing legal aid to the applicant up to the time at which the certificate is cancelled, and the amount payable is a debt owing to the Commission.
56(8)Subsection 11(6), as adopted under subsection (1), shall be read as follows:
11(6)If an employee for an area determines that the applicant can pay some part of the cost of the legal aid applied for and the applicant does not pay that part of the cost at that time, the employee shall require the applicant to enter into a written agreement to pay that part of the cost under such conditions and at such time as may be set by the employee.
56(9)Subsection 11(7), as adopted under subsection (1), shall be read as follows:
11(7)The amount that an applicant agrees to pay under subsection (6) is a debt owing to the Commission; however, where at any time such amount exceeds the cost to the Commission of providing legal aid to the applicant, the debt shall, at that time, be deemed to be an amount equal to the cost to the Commission of providing legal aid to the applicant.
56(10)The reference to “Law Society” in subsection 11(8), as adopted under subsection (1), shall be read as “Commission”.
56(11)The references to “or an area director” and “or the area director” in subsection 11(9), as adopted under subsection (1), shall be read as “or an employee for an area” and “or the employee”, respectively.
56(12)The references to “Law Society” in paragraphs 11(10)(a) and (b), as adopted under subsection (1), shall be read as “Commission”.
56(13)The reference to “established by the Law Society” in subsection 12(1), as adopted under subsection (1), shall be read as “established under this Part and the regulations”.
56(14)An employee shall not act under subsection 12(4), paragraph 12(6)(b) and subsections 12(7) and (8), as adopted under subsection (1), unless the employee has a current legal opinion pertaining to the proceeding or matter preliminary to an anticipated proceeding.
56(15)The references to “area director” in subsection 12(5), as adopted under subsection (1), shall be read as “Executive Director”.
56(16)The reference to “the area director” in paragraph 12(6)(b), as adopted under subsection (1), shall be read as “that employee”.
56(17)Subsection 12(10), as adopted under subsection (1), shall be read as follows:
12(10)Except where in the opinion of an employee for an area the circumstances of an application require the immediate issue or amendment of a legal aid certificate, the employee shall not issue or amend a legal aid certificate to authorize legal aid in respect of paragraph (1)(g) unless
(a) the applicant has included in his or her application
(i) the opinion of a solicitor as to the advisability of instituting or defending an appeal,
(ii) a copy of the order or judgment appealed from, and
(iii) such other information as the employee requires,
(b) the employee considers that it is reasonable that the appeal be instituted or defended,
(c) the employee has submitted the application to the area committee for that area, if one has been established, or to the Executive Director, if an area committee has not been established for that area, and
(d) the area committee or the Executive Director, as the case may be, has approved the issuing or amending of a legal aid certificate.
56(18)The reference to “the Law Society, with the approval of the Minister, may from time to time” in subsection 12(13), as adopted under subsection (1), shall be read as “the Executive Director, with the approval of the Board, may from time to time”.
56(19)Subsection 12(14), as adopted under subsection (1), shall be read as follows:
12(14)Where the Executive Director is of the opinion that the Legal Aid Fund is in danger of being depleted, he or she may, with the approval of the Board after the Board has consulted with the Minister, limit the provision of legal aid in proceedings or matters included in paragraphs (1)(c) to (g) and subsection (2).
56(20)Subsection 13(4), as adopted under subsection (1), shall be read without reference to “by the area director”.
56(21)The reference to “comité d’aide juridique” in subsection 13(6) of the French version, as adopted under subsection (1), shall be read as “Comité d’aide juridique”.
56(22)The reference to “the area director” in subsection 13(7), as adopted under subsection (1), shall be read as “an employee for the area”.
56(23)The reference to “the area director of that area” in subsection 14(1), as adopted under subsection (1), shall be read as “an employee for that area”.
56(24)Section 14, as adopted under subsection (1), shall be read without reference to subsection 14(6).
56(25)Section 14.1, as adopted under subsection (1), shall be read as follows:
14.1If a barrister and solicitor has been employed by the Commission or appointed or contracted with under section 41 for the provision of legal aid, an employee may require the holder of a legal aid certificate to retain that barrister or solicitor, in which case subsections 14(3), (4) and (7) do not apply.
56(26)The reference to “avocat ou un procureur” in subsection 15(1) of the French version, as adopted under subsection (1), shall be read as “avocat”.
56(27)Section 15, as adopted under subsection (1), shall be read without reference to subsection 15(2.1).
56(28)References to “Law Society” in subsections 16(1), (3), (4), (6) and (7), as adopted under subsection (1), shall be read as “Commission”.
56(29)The reference to “Law Society” in subsection 16(9), as adopted under subsection (1), shall be read as “Commission”.
56(30)References to “Law Society” in subsections 16.1(4) and (5), as adopted under subsection (1), shall be read as “Commission”.
56(31)The reference to “area director” in subsection 16.2(1), as adopted under subsection (1), shall be read as “employee for an area”.
56(32)The reference to “Law Society” in section 17.1, as adopted under subsection (1), shall be read as “Executive Director”.
56(33)Section 18, as adopted under subsection (1), shall be read as follows:
18The Commission is not liable for any act or omission of any barrister or solicitor who is appointed or contracted with under section 41 and who provides professional services under this Part.
56(34)Section 19, as adopted under subsection (1), shall be read as follows:
19Communications between an applicant for legal aid, on the one hand, and the Executive Director, a member of the Board, a member of the Legal Aid Committee, a duty counsel, a member of an area committee, an employee or a person appointed or contracted with under section 41, on the other hand, which would be privileged if made between a client and his or her solicitor, are privileged in the same manner and to the same extent as solicitor and client communications.
56(35)Section 19.1, as adopted under subsection (1), shall be read as follows:
19.1(1)Notwithstanding section 19, where the Legal Aid Committee conducts an investigation under section 50, the Legal Aid Committee may require the Executive Director, a member of the Board, a member of the Legal Aid Committee, a duty counsel, a member of an area committee, an employee and a person appointed or contracted with under section 41 to disclose to it any communication referred to in section 19.
19.1(2)No member of the Legal Aid Committee shall
(a) disclose, publish or communicate to any person any application, report, statement, record, document or other information provided under subsection 50(2) or any communication disclosed under subsection (1), or
(b) use such application, report, statement, record, document or other information or communication except for the purposes of subsections 50(1) and (3).
56(36)Paragraph 20(b), as adopted under subsection (1), shall be read as follows:
(b) prescribing oaths of office and secrecy as conditions of appointment, employment or entering into a contract under this Part;
56(37)Paragraph 20(c), as adopted under subsection (1), shall be read as follows:
(c) respecting the functions of the Executive Director, duty counsel and other persons appointed, employed or contracted with for the purposes of this Part;
56(38)Section 20, as adopted under subsection (1), shall be read without reference to paragraph 20(q).
56(39)Paragraph 20(r.1), as adopted under subsection (1), shall be read as follows:
(r.1) respecting the provision of legal aid by barristers and solicitors appointed or contracted with under section 41;
56(40)Section 20, as adopted under subsection (1), shall be read without reference to paragraph 20(t).
2005, c.8, s.1
Adoption of provisions from Part II
2005, c.8, s.1
57(1)Subject to subsections (2) to (4), section 23 and subsections 24(1), (3) and (4) are adopted for the purposes of this Part and apply to the provision of legal aid and the administration of the plan.
57(2)Section 23, as adopted under subsection (1), shall be read as follows:
23The following definitions apply in this Part.
“Commission” means the New Brunswick Legal Aid Services Commission established under section 26.(Commission)
“legal aid” means professional services provided under this Part and the regulations.(aide juridique)
57(3)The reference to “Minister” in subsection 24(1), as adopted under subsection (1), shall be read as “Commission”.
57(4)The reference to “Minister” in subsection 24(3), as adopted under subsection (1), shall be read as “Commission”.
2005, c.8, s.1
Provincial Director
2005, c.8, s.1
58(1)The person holding the office of Provincial Director of Legal Aid on the commencement of this subsection shall act as the Interim Executive Director until an appointment is made under subsection 39(1).
58(2)Any reference in this Part to “Executive Director” shall be read as “Interim Executive Director” until an appointment is made under subsection 39(1).
2005, c.8, s.1
Employees of the Law Society administering the plan
2005, c.8, s.1
59The employees of the Law Society administering the plan on the commencement of this section shall be deemed to be employees of the Commission and shall be deemed to have been employed under subsection 40(1).
2005, c.8, s.1
Barristers and solicitors
2005, c.8, s.1
60(1)A barrister or solicitor who was employed by the Provincial Director of Legal Aid for the provision of legal aid before the commencement of this subsection and is still so employed on the commencement of this subsection shall be deemed to have been employed under subsection 40(1).
60(2)A barrister or solicitor who was appointed by or entered into a contract with the Provincial Director of Legal Aid for the provision of legal aid before the commencement of this subsection and whose appointment or contract is in force on the commencement of this subsection shall be deemed to have been appointed or contracted with under subsection 41(1).
2005, c.8, s.1
Provincial legal aid office
2005, c.8, s.1
61The office for legal aid established under section 3 shall be deemed to be the head office referred to in section 28.
2005, c.8, s.1
Regional legal aid offices
2005, c.8, s.1
62A regional legal aid office established under section 4 shall be deemed to be an office established under subsection 48(1).
2005, c.8, s.1
Area legal aid committee
2005, c.8, s.1
63An area legal aid committee in place on the commencement of this section shall be deemed to have been appointed under section 51.
2005, c.8, s.1
Legal Aid Fund
2005, c.8, s.1
64(1)The Legal Aid Fund established under section 7 shall be deemed to have been established under section 52.
64(2)After the commencement of this subsection, if the Law Society receives any amount for the purposes of the administration of the plan and the provision of legal aid or if any amount is deposited to the credit of the Legal Aid Fund established under section 7, the Law Society shall immediately transfer the amounts to the Commission.
64(3)Any amount to be transferred under subsection (2) is a debt owing to the Commission.
64(4)If the Law Society does not transfer any amount under subsection (2), the persons holding the offices of President, Vice-President and Treasurer of the Law Society on the date of the receipt of the amount if the amount has not been deposited to the credit of the Legal Aid Fund established under section 7 or on the date of the deposit of the amount to the credit of the Legal Aid Fund, as the case may be, are jointly and severally liable to pay the amounts to the Commission.
64(5)Any amount transferred to the Commission under subsection (2) or paid to the Commission under subsection (4) shall be deposited to the credit of the Legal Aid Fund established under section 52.
2005, c.8, s.1
N.B. Sections 12(1)(c)-(f), (2), (7)-(9) of this Act were proclaimed and came into force July 1, 1981.
N.B. This Act is consolidated to January 1, 2014.