Bill 5 - An Act Respecting Small Claims

BILL 5

An Act Respecting Small Claims

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

Small Claims Act

1 Section 17 of the Small Claims Act, chapter S-9.1 of the Acts of New Brunswick, 1997, is amended

(a) by adding after subsection (3) the following:

17(3.01) Despite subsection (3), the term of appointment of every adjudicator who is holding office on the commencement of this subsection is extended for six months.

(b) by repealing subsection (3.1).

An Act to Repeal the Small Claims Act

2(1) Section 3 of An Act to Repeal the Small Claims Act, chapter 28 of the Acts of New Brunswick, 2009, is amended by adding after subsection (2) the following:

3(3) All appointments of adjudicators whose terms of appointment were extended under the Small Claims Act are revoked.

3(4) 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 revocation of appointments under subsection (3).

2(2) Section 5 of the Act is amended by striking out the portion preceding paragraph (a) and substituting the following:

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 established by the Rules of Court made under section 73.11 of the Judicature Act as enacted by subsection 10(2), subject to the following conditions:

2(3) Section 6 of the Act is amended by striking out the portion preceding paragraph (a) and substituting the following:

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 established by the Rules of Court made under section 73.11 of the Judicature Act as enacted by subsection 10(2), subject to the following conditions:

2(4) The Act is amended by adding after section 8 the following:

8.1(1) Subject to subsection (3), if a claim or counterclaim was duly filed with the Small Claims Court of New Brunswick before the commencement of this section and the claimant or defendant abandoned the amount exceeding $6,000 in the Claim or Response, the claimant or defendant may refile the claim or counterclaim in accordance with the procedure established by the Rules of Court made under section 73.11 of the Judicature Act as enacted by subsection 10(2) subject to any limitation period under the Limitations Act or any other Act and no fee is payable to refile the claim or counterclaim.

8.1(2) Subject to subsection (3), if a claim or counterclaim was duly filed with the Small Claims Court of New Brunswick before the commencement of this section and the claimant or defendant did not indicate in the Claim or Response that an amount exceeding $6,000 was being abandoned, the claimant or defendant shall not, unless otherwise ordered by The Court of Queen’s Bench of New Brunswick, refile the claim or counterclaim under the Rules of Court made under section 73.11 of the Judicature Act as enacted by subsection 10(2).

8.1(3) No claim or counterclaim referred to in subsection (1) or (2) shall be refiled under the Rules of Court made under section 73.11 of the Judicature Act as enacted by subsection 10(2) if

(a) a settlement agreement in relation to the claim or counterclaim was filed,

(b) default judgment or interim judgment in respect of the claim was entered,

(d) judgment was entered after a hearing, or

(e) a hearing was held but no decision was rendered.

8.1(4) If an action was commenced before the commencement of this section in accordance with the rules applicable to an ordinary action or in accordance with Rule 79 of the Rules of Court, a party to the action may, on motion to The Court of Queen’s Bench of New Brunswick, apply for an order to proceed in accordance with the procedure established by the Rules of Court made under section 73.11 of the Judicature Act as enacted by subsection 10(2) and if the motion is allowed, no fee is payable to refile the claim or counterclaim.

2(5) Subsection 10(2) of the Act is amended by repealing section 73.11 as enacted by subsection 10(2) and substituting the following:

Rules of Court

73.11(1) 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 referred to in this section and without limiting 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 subsection (2), subject to such exceptions as may be prescribed;

(b) prescribing the amount or value referred to in subsection (2);

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

(e) prescribing the rules of evidence;

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

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

(h) prescribing fees;

(i) waiving all or part of a fee and respecting the circumstances under which a fee or part of a fee may be waived;

(j) 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.

73.11(2) For the purposes of paragraph (1)(a), the causes are as follows:

(a) an action for debt or damages if the amount claimed does not exceed the amount prescribed in the Rules;

(b) an action for the recovery of possession of personal property if the value of the personal property does not exceed the amount prescribed in the Rules;

(c) an action for debt or damages combined with an action for the recovery of possession of personal property if the combined value of the amount claimed and the value of the personal property does not exceed the amount prescribed in the Rules.

73.11(3) The amount prescribed under paragraph (2)(a) is inclusive of interest to the date of judgment.

73.11(4) The amount claimed in the combined value prescribed under paragraph (2)(c) is inclusive of interest to the date of judgment.

73.11(5) The amounts prescribed under paragraphs (2)(a) and (b) and the combined value prescribed under paragraph (2)(c) are exclusive of costs.

2(6) Section 12 of the Act is repealed and the following is substituted:

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 established by the Rules of Court made under section 73.11 of 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 established by the Rules of Court made under section 73.11 of 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 established by the Rules of Court made under section 73.11 of 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”.