BILL 66

An Act to Repeal the Small Claims Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1(1) The Small Claims Act, chapter S-9.1 of the Acts of New Brunswick, 1997, is repealed.

1(2) Sections 1, 2 and 4 of An Act to Amend the Small Claims Act, chapter 14 of the Acts of New Brunswick, 2002, are repealed.

2 New Brunswick Regulation 98-84 under the Small Claims Act is repealed.

TRANSITIONAL PROVISIONS

3(1) All Orders in Council relating to the appointment or remuneration of adjudicators of the Small Claims Court of New Brunswick are revoked.

3(2) No action, application or other proceeding lies or shall be instituted against the Minister of Justice and Consumer Affairs or against the Crown in right of the Province as a result of the repeal of the Small Claims Act or the revocation of Orders in Council under subsection (1).

4 If an action was heard by an adjudicator of the Small Claims Court of New Brunswick before the commencement of this section but no decision was rendered, the adjudicator may render the decision as though the Small Claims Act had not been repealed.

5 An action that was commenced in the Small Claims Court of New Brunswick before the commencement of this section but not heard shall be dealt with and concluded in The Court of Queen’s Bench of New Brunswick in accordance with the procedure relating to actions for small claims that is established by the Rules of Court, subject to the following conditions:

(a)  no fee is payable to refile any document that was duly filed under the Small Claims Act;

(b)  no party shall be prejudiced by virtue of the expiration of an applicable limitation period under the Limitation of Actions Act or any other Act; and

(c)  in any matter of procedure that was provided for by the Small Claims Act but not provided for by the Rules of Court, the judge of The Court of Queen’s Bench of New Brunswick may give directions.

6 If an action was commenced in the Small Claims Court of New Brunswick and the hearing was not concluded before the commencement of this section, the proceeding shall be transferred to The Court of Queen’s Bench of New Brunswick which shall hear the proceeding again in accordance with the procedure relating to actions for small claims that is established by the Rules of Court, subject to the following conditions:

(a)  no fee is payable to refile any document that was duly filed under the Small Claims Act;

(b)  no party shall be prejudiced by virtue of the expiration of an applicable limitation period under the Limitation of Actions Act or any other Act; and

(c)  in any matter of procedure that was provided for by the Small Claims Act but not provided for by the Rules of Court, the judge of The Court of Queen’s Bench of New Brunswick may give directions.

7 An appeal by trial de novo to The Court of Queen’s Bench of New Brunswick that was commenced under the Small Claims Act before the commencement of this section shall be dealt with and concluded as though that Act had not been repealed.

8 An appeal to The Court of Appeal of New Brunswick that was commenced under the Small Claims Act before the commencement of this section shall be dealt with and concluded as though that Act had not been repealed.

CONSEQUENTIAL AMENDMENTS

Amendment to the Court Security Act

9 Section 1 of the Court Security Act, chapter C-30.5 of the Acts of New Brunswick, 2008, is amended by repealing the definition “court” and substituting the following:

“court” means The Court of Queen’s Bench of New Brunswick, The Court of Appeal of New Brunswick, The Probate Court of New Brunswick and the Provincial Court. (tribunal)

Amendments to the Judicature Act

10(1) Paragraph 73(1)(l) of the Judicature Act, chapter J-2 of the Revised Statutes, 1973, is amended by striking out “the Court of Queen’s Bench, the Court of Appeal or the Small Claims Court of New Brunswick” and substituting “the Court of Queen’s Bench or the Court of Appeal”.

10(2) The Act is amended by adding after section 73.1 the following:

Small claims

73.11 The Lieutenant-Governor in Council may at any time amend or repeal the provisions of the Rules of Court and may make other Rules in order to establish a procedure to be used in any cause in which an amount not exceeding $6,000, or such lesser amount as is prescribed by the Lieutenant-Governor in Council, is claimed, and without restricting the generality of the foregoing may make rules

(a)  prescribing that the procedure established under this section is the only procedure to be used for the causes referred to in paragraph (b), subject to such exceptions as may be prescribed;

(b)  prescribing causes in respect of which the procedure established under this section shall apply;

(c)  providing for the selection of venue for the hearing of causes;

(d)  prescribing the rules of evidence;

(e)  providing for appeals, and limiting any right of appeal otherwise provided for in this Act or the Rules of Court;

(f)  providing for costs, including costs on appeal;

(g)  prescribing fees;

(h)  respecting the application of the procedure established under this section to causes in which an amount in excess of $6,000, or such lesser amount as is prescribed by the Lieutenant-Governor in Council, is claimed by way of counterclaim or set off against a claim;

(i)  generally, with respect to any other matter that under this Act may be regulated by the Rules of Court and that is incidental to the establishment of a procedure under this section.

Amendments to the Rules of Court

11 Rule 76.1 of the Rules of Court of New Brunswick, “VEXATIOUS PROCEEDINGS”, New Brunswick Regulation 82-73 under the Judicature Act and the Provincial Offences Procedure Act, is amended

(a)  by repealing subrule 76.1.01;

(b)  in subrule 76.1.02

(i) in paragraph (1)

(A) in the portion preceding clause (a) by striking out “or the Small Claims Court” wherever it appears;

(B) in clause (a) by striking out “or the Small Claims Court”;

(C) in clause (b) by striking out “or the Small Claims Court”;

(ii) in paragraph (3) by striking out “or the Small Claims Court”.

Amendments to the Probate Court Act

12(1) Section 65 of the Probate Court Act, chapter P-17.1 of the Acts of New Brunswick, 1982, is amended

(a)  by repealing subsection (3) and substituting the following:

65(3) Where the application for the order allowing the claim or demand is one that could have been brought in accordance with the procedure relating to actions for small claims that is established by the Rules of Court made under the Judicature Act, the Court shall hear and dispose of the application in accordance with that procedure.

(b)  in subsection (6) by striking out “under the Small Claims Act” and substituting “in accordance with the procedure relating to actions for small claims that is established by the Rules of Court made under the Judicature Act”;

(c)  in subsection (7) by striking out “Where the claim or demand heard by the Court is in accordance with the procedure under the Small Claims Act, the fees and costs payable shall be according to the tariff prescribed under that Act” and substituting “Where the claim or demand is heard by the Court in accordance with the procedure relating to actions for small claims that is established by the Rules of Court made under the Judicature Act, the fees and costs payable shall be according to the tariff prescribed under the Rules of Court”.

12(2) Section 67 of the Act is amended by striking out “the amount prescribed under the Small Claims Act” and substituting “the amount prescribed under section 73.11 of the Judicature Act for actions for small claims”.

COMMENCEMENT

13 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.